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Abriel v Rothman

Abriel v Rothman

Case [2002] NSWSC 1056 8 November 2002

Advocate's Immunity

Apprehended Bias

Counsel's Duty to the Court

Summary Dismissal

Civil Litigation & Procedure

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CITATION: Abriel v Rothman [2002] NSWSC 1056

FILE NUMBER(S): SC 20636/01

HEARING DATE(S): 04/11/02, 05/11/02

JUDGMENT DATE: 8 November 2002

PARTIES :

Plaintiff - Rudolph Abriel, Vera Abriel and Premier Knits Pty Ltd
Defendant - Stephen Rothman

JUDGMENT OF: Burchett AJ

COUNSEL : Mr Abriel - in person
Mr J.G. Duncan - Defendant

SOLICITORS: McCabe Terrill Lawyers - Defendant

CATCHWORDS: LEGAL PRACTITIONERS - action against barrister in respect of conduct of appeal - advocate's immunity from suit - whether argument should have been presented of apprehended bias on the part of the trial judge - counsel's paramount duty to the Court - PRACTICE AND PROCEDURE - circumstances where proceeding was required to be summarily dismissed

LEGISLATION CITED: Supreme Court Rules
Fair Trading Act 1987 (NSW)

CASES CITED: Giannarelli v Wraith (1988) 165 CLR 543
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130
Abriel v Australian Guarantee Corporation Ltd [2000] FCA 1198
Abriel v Australian Guarantee Corporation Limited (unreported, 2 March 2001)
Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147
S S Hontestroom v S S Sagaporack [1927] AC 37 at 47
Devries v Australian National Railways Commission (1993) 177 CLR 472
Johnson v Johnson (2000) 201 CLR 488 at 493
Vakauta v Kelly (1989) 167 CLR 568 at 571
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352.
Rondel v Worsley [1969] 1 AC 191 at 227-228.

DECISION: Plaintiffs' action must be summarily dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

BURCHETT AJ

8 November, 2002

20636/01 – Rudolph Abriel, Vera Abriel and Premier Knits Pty Ltd v Stephen Rothman
JUDGMENT

1 HIS HONOUR: By his Amended Notice of Motion, the Defendant seeks summary dismissal of the Plaintiff’s action pursuant to Pt 13 r 5 of the Supreme Court Rules, or alternatively, an order for security for costs.

2 The principal proceeding in question has been brought against the senior counsel who represented the Plaintiffs upon an appeal from a decision of Dowsett J, a judge of the Federal Court of Australia, to a Full Court of the Federal Court of Australia. In the Amended Statement of Claim in that proceeding, the Plaintiffs allege that Mr Rothman was informed of the “details which pertained to the conduct of Ms Annabelle Bennett SC who had represented the plaintiffs in proceedings G388 of 1995 [the compromise of which was the subject of the judgment under appeal]”, and Mr Rothman was “specifically instructed…to put the said information before the Court at the hearing [of the appeal]”. It is then alleged that “the defendant negligently and/or wilfully failed to put this information before the Court”. The alleged “negligence and breach of duty” are said to have “consisted of”:

(ii) failing to put before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abriel v Rothman

Details

AGLC: Abriel v Rothman [2002] NSWSC 1056
Case: [2002] NSWSC 1056
Decision Date: 8 November 2002

CaseChat Overview and Summary

The case of Abriel v Rothman involved a plaintiff, Abriel, who sought to bring an action against a barrister, Rothman, for the conduct of an appeal in which Rothman represented the plaintiff. The primary issue before the court was whether a barrister should be held liable for the conduct of an appeal, specifically concerning whether a particular argument regarding the apprehended bias of the trial judge should have been presented. The court had to consider the extent of a barrister's immunity from suit and the duties owed to the court versus the client. The decision hinged on the balance between a barrister's duty to the court and the potential conflict of interest arising from a client's wishes.

The court determined that a barrister's paramount duty is to the court, which sometimes necessitates disregarding the client's wishes if they conflict with the barrister's obligations to the administration of justice. In this case, the court concluded that it was not negligent for the barrister to have decided against presenting an argument about the trial judge's apprehended bias, given the circumstances. The court found that the barrister had acted within the bounds of professional conduct and the ethical duty to the court, thus upholding the barrister's immunity from the plaintiff's claim. The court held that the proceeding should be summarily dismissed due to the lack of any grounds for holding the barrister liable for the conduct of the appeal.

Consequently, the court ruled in favour of the defendant, the barrister, and dismissed the plaintiff's action against him. The court's decision underscored the importance of a barrister's duty to the court and the limitations on a client's ability to direct the legal strategy of their representative. This ruling reinforced the principle that a barrister's duty to the court can sometimes override a client's wishes, particularly when those wishes might compromise the integrity of the judicial process.

Orders