Burrows v A.W. Bale & Son Solicitors

Case [2022] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

Burrows v A.W. Bale & Son Solicitors & Anor [2022] QDC 117

PARTIES:

KENNETH PATRICK BURROWS

(plaintiff)

v

A.W. BALE & SON SOLICITORS

(first defendant)

and

ANDREW BALE

(second defendant)

FILE NO:

1872 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

6 June 2022

DELIVERED AT:

Brisbane District Court

HEARING DATE:

1, 2 and 3 December 2021

JUDGE:

Byrne QC DCJ

ORDERS:

1.       The plaintiff’s claims are dismissed against both the first defendant and the second defendant.

2.       If the parties are unable to agree as to costs, the parties are to serve written submissions on each other as to costs, limited to five pages together with any necessary attachments, no later than 4.00pm on 13 June 2022.

3.       The parties are each to file those written submissions as to costs and file and serve any written submissions in reply, limited to three pages together with any necessary attachments, no later than 4.00pm on 17 June 2022, with a view to the issue being determined on the papers, unless otherwise determined.

4.       Liberty to apply.

CATCHWORDS:

TORTS – NEGLIGENCE – PROFESSIONAL NEGLIGENCE – BREACH OF RETAINER - CRIMINAL PROCEEDS – FORFEITURE OR CONFISCATIONS - where the plaintiff was convicted of serious drug offences – where the plaintiff had real property and a sum of cash restrained – where the plaintiff retained the first and second defendant to act on his behalf in an appeal against sentence and to resist forfeiture proceedings – where the plaintiff alleges the first and second defendant breached the retainer and breached a duty of care – where the plaintiff alleges the first and second defendants failed to understand the statutory provisions concerning automatic forfeiture – where material was not filed during the automatic forfeiture period – where the applicant contributed to confusion about the date of automatic forfeiture.

TORTS – NEGLIGENCE – PROFESSIONAL NEGLIGENCE – BREACH OF RETAINER - CRIMINAL PROCEEDS – LIMITATION OF ACTIONS – where the plaintiff was serving a period of imprisonment and actually incarcerated at the time the causes of action arose – where the plaintiff was later released on parole – where s. 5(2) of the Limitations of Actions Act 1974 then provided that a convict who, after conviction, is undergoing a sentence of imprisonment is under a disability – where s. 29 of the Limitation of Actions Act 1974 provided that a limitation period of 6 years applies from when the person ceases to be under a disability – meaning of the phrase “a convict who, after conviction, is undergoing a sentence of imprisonment” – whether a person is a convict undergoing a sentence of imprisonment once released on parole – whether the plaintiff’s actions were commenced after the expiration of the limitation period.

TORTS – NEGLIGENCE – PROFESSIONAL NEGLIGENCE – BREACH OF RETAINER – CAUSATION – DAMAGES – where liability is notionally established – whether causation is established and damages are to be calculated on a loss of…

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AGLC
Burrows v A.W. Bale & Son Solicitors [2022] QDC 117
Case
[2022] QDC 117
Decision Date

CaseChat Overview and Summary

The case of Burrows v A.W. Bale & Son Solicitors concerns a claim of professional negligence brought by a plaintiff who had been convicted of serious drug offences and had property and cash restrained by the State. The plaintiff had retained the defendants to act on his behalf in an appeal against sentence and to resist forfeiture proceedings. The plaintiff alleged that the defendants breached their retainer and breached a duty of care by failing to understand the statutory provisions concerning automatic forfeiture, resulting in material not being filed during the automatic forfeiture period. The defendants contended that the plaintiff's claims were statute-barred, and that causation and damages had not been established.

The court was required to decide whether the plaintiff's claims were statute-barred under the Limitation of Actions Act 1974, whether the plaintiff had established causation and damages on a loss of chance basis, and whether the plaintiff's claims were otherwise valid. The court found that the plaintiff's claims were statute-barred as they were brought outside the six-year limitation period. The court held that the plaintiff was under a disability under the Limitation of Actions Act 1974 while he was serving a sentence of imprisonment, and that the limitation period only commenced when he ceased to be under a disability, which was when he was released on parole. As the plaintiff's claims were brought after the limitation period had expired, they were statute-barred.

The court also found that even if the plaintiff's claims were not statute-barred, they would still fail as the plaintiff had not established causation and damages on a loss of chance basis. The court held that it must be shown on the balance of probabilities that the breach caused actual loss of something of value, and that the plaintiff had failed to do so. The court noted that the plaintiff's evidence was vague and lacked specificity, and that there was no evidence to support the plaintiff's claim that he would have been able to prevent the automatic forfeiture of his property if the defendants had acted promptly.

Finally, the court found that the plaintiff's claims were otherwise invalid as they were based on a breach of retainer rather than a breach of duty of care. The court held that a breach of retainer does not give rise to a cause of action in tort, and that the plaintiff's claims in tort therefore failed. The court also noted that the plaintiff's claims in contract were not made out as the defendants had not breached any term of the retainer.

In conclusion, the court dismissed the plaintiff's claims against both defendants. The court ordered that if the parties were unable to agree on costs, they were to serve written submissions on each other and file and serve any written submissions in reply, with a view to the issue being determined on the papers. The court also granted liberty to apply.

Orders

Orders of the court

1. The plaintiff’s claims are dismissed against both the first defendant and the second defendant.

2. If the parties are unable to agree as to costs, the parties are to serve written submissions on each other as to costs, limited to five pages together with any necessary attachments, no later than 4.00pm on 13 June 2022.

3. The parties are each to file those written submissions as to costs and file and serve any written submissions in reply, limited to three pages together with any necessary attachments, no later than 4.00pm on 17 June 2022, with a view to the issue being determined on the papers, unless otherwise determined.

4. Liberty to apply.

Background

Background to the litigation

For the reasons that follow, the defendants must succeed on the limitation point. Had it been necessary to consider, I would have also found for the defendants on the causation point.Some factual background The plaintiff had been charged with a number of serious drug offences, including trafficking in a dangerous drug (which was methylamphetamine) between September 1998 and September 2001. He was arraigned and pleaded guilty in the Supreme Court on 30 March 2004 to various charges including trafficking in methylamphetamine,[1] receiving money obtained from trafficking believing it to have been so obtained[2] and possessing of a sum of money and a set of scales used in connection with the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986.[3] The allocutus was administered on that day.[4] [1]Section 5(1)(b) of the Drugs Misuse Act 1984; Trial Bundle (“TB”), pp 119 and 91.[2]Section 7(1)(a) of the Drugs Misuse Act 1984; TB, pp 119 and 91.[3]Section 10(1)(a) of the Drugs Misuse Act 1984; TB, pp 117 and 93.[4]Ts 2-54. On 13 May 2004 the plaintiff pleaded guilty to a number of other charges, including possession of property reasonably suspected of having been the proceeds an offence defined in Part 2 of the Drugs Misuse Act 1986.[5] [5]Section 10A(1)(d) of the Drugs Misuse Act 1984; TB, p 94. Sentencing for all charges occurred on that day. Atkinson J sentenced the plaintiff to an effective term of nine years’ imprisonment with a period of 787 days declared as time already served under the sentences imposed, and the trafficking offence was declared to be a Serious Violent Offence. On the same day the State of Queensland successfully applied for a restraining order over real property located at Moorina, and a sum of cash totalling $106,355.00. The application was made pursuant to ss 117 and 122 of the Criminal Proceeds Confiscation Act 2002 (“CPCA”). At the same time an application for forfeiture of both the Moorina property and the cash was made pursuant to ss 146 and 151 of the CPCA. That latter application was adjourned to a date to be fixed. The plaintiff did not oppose the restraint or the adjournment of the forfeiture application. Although the first defendant had apparently acted for the plaintiff at an earlier time in the criminal proceedings, neither it nor the second defendant were involved in March 2004 or May 2004. Section 163 of the CPCA[6] provided for the automatic forfeiture of restrained property when the “forfeiture period” expired. It applied only because of the existence of the restraining order. In that sense, it operated separately to the forfeiture order sought under ss 146 and 151 of the CPCA. The forfeiture period was defined at s 161 as the later of a period of six months starting on the day of the plaintiff’s conviction or a period as extended under s 163. The only means by which the plaintiff could avoid automatic forfeiture was to bring an application under s 139 to amend the restraining order to exclude particular property (an “exclusion application”). In the circumstances of this matter, it may also have been open for an application to be made by the plaintiff’s wife for a third party order or a buy-back order under ss 165 and 166. In either case, the applicant bore the burden of proving that the property should be the subject of a favourable exercise of discretion.[6]The applicable reprint is reprint 2A in force from 8 December 2003.

Evidence

Evidence Before The Court

In relation to the wilful concealment allegation and the asserted breach of duty to inform the plaintiff that they had not made timely applications to resist automatic forfeiture, damages were sought for an unspecified amount for legal fees for work done after the forfeiture, as well as for improvements, rates and taxes paid in relation to the Moorina property.The oral evidenceKenneth Burrows The plaintiff received two personal injury payments totalling in excess of $400,000.00. The first was received in December 1993.[28] The date of the second payment is not in evidence, but it was after that.[28]TB, p 150. The Moorina property was purchased on 5 April 1994 with what the plaintiff said was the proceeds of the first payout.[29] It was purchased in the name of both the plaintiff and his then wife, or perhaps de facto partner, as joint tenants.[30][29]TB, p 143.[30]TB, pp 114 and 142. The plaintiff testified that the second payment was banked on 8 December 1998 and then withdrawn as roughly $298,000.00 in cash which, he says, he put under his bed.[31][31]Ts 1-16 to 1-17. After being sentenced to imprisonment in 2004, he had his father contact the defendants to appeal against his sentence “and get the caveat lifted off the property”.[32] He said he first saw the second defendant at Borallon Correctional Centre towards the end of 2004. He said that the second defendant said he was in a hurry and told him to sign a Legal Aid form that had to be lodged. Regarding the forfeiture, he said that the second defendant told him that there was a fair chance the State would keep the money and he would keep the land. He said he would be happy with that. He said he had not heard anything earlier because he had been “locked up” and didn’t like using phones too much.[33][32]Ts 1-14.[33]Ts 1-18 to 1-19; 1-40. He denied having been shown, or signing, an instructions document dated 15 November 2004,[34] although in cross-examination he accepted that he might have signed it.[35][34]Ts 1-19.[35]Ts 1-41 to 1-42. He applied for parole in 2009. It was initially refused as the Moorina property was considered to be unsuitable as a residence. That later changed after, he understood, the second defendant wrote to the Parole Board on his behalf.[36][36]Ts 1-20. The plaintiff testified he was again arrested in 2015 and that it was on 1 December 2015 that police told him he had lost his house. He said that was the first he knew of that. To the date of his testimony, he said he has never received a letter from the defendants saying he had lost the property.[37][37]Ts 1-20 and 1-22. He said in the intervening period he had made improvements to the property. He testified that his sons paid about $30,000.00 for materials but he was doing the renovations with his son and that there was no price you could put on that, because he was bonding with his son.[38][38]Ts 1-21. In cross-examination he accepted that he stated in an affidavit dated 7 February 2016 that after his appeal was dismissed, he felt depression and despair and that his recall of those years was limited, although he now asserted that he remembered “every day in gaol”.[39][39]Ts 1-23 to 1-24.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The events concerning the State’s application filed 10 November 2015 and culminating with Ann Lyons J’s orders and reasons of 16 February 2016 are not contentious and I act on that basis. The effect of her Honour’s ruling is that automatic forfeiture occurred on 30 September 2004, regardless of any misunderstanding by the parties at the time.ConsiderationThe limitation issue The plaintiff has brought the present actions in both tort and contract. The cause of each action arose on 30 September 2004. Pursuant to s 10(1)(a) of the LAA, the limitation period is one of six years commencing from when the cause of action arose. If at the time that the cause of action arose the plaintiff is under a disability, s 29 of the LAA allows a period of six years to bring proceedings from when the person ceases to be under the disability. Section 5(2) of the LAA then provides that “a person shall be taken to be under a disability while the person is … a convict who, after conviction, is undergoing a sentence of imprisonment”. That definition was amended on and from 7 November 2008 such that “convicts” were no longer under a disability, but the transitional provision operates to apply the amended provision only to causes of action arising after amendment.[94][94]Section 19 Corrective Services Act and Other Legislation Amendment Act 2008. Given that the plaintiff was serving a term of imprisonment as at 30 September 2004, he was then under a disability, and remained under that disability while he was a convict undergoing a sentence of imprisonment. The issue to be considered is whether he ceased to be under that disability when he was released from actual incarceration to parole, or whether it ceased only once the full term of the period of imprisonment had been reached. His fulltime release from the overall sentence of imprisonment was on or about 18 March 2011.[95] The parties are agreed that the he was released to parole on 29 May 2009.[96] The present proceeding was commenced on 16 September 2016, and so the question bears on the application of the disqualifying provision in the LAA.[95]Nine years imprisonment imposed on 13 May 2004 with 787 days on remand declared as time already served under the sentence.[96]SFAD, para 24(2); Reply, para 13. This issue was raised by me at the hearing. The plaintiff submits it must be taken to be the latter date. Alternatively, he argues that the time will also be extended by the application of s 38 of the LAA. The defendants submit that given the plaintiff admitted, or is taken to have admitted, in the pleadings the defendants’ express assertion that the plaintiff remained under a disability only until 29 May 2009, and given that the plaintiff has not sought leave to withdraw the admission, the plaintiff is bound by the admission and the issue does not arise. Alternatively, they submit that, on the construction point, it is the earlier date in any event. There is some merit in the defendants’ primary argument. However, insofar as the admission or deemed admission is to a matter of law and not of fact, r 166 of the UCPR does not apply. It may be that leave to withdraw an admission is nonetheless required under r 188,[97] but it is unclear to me, given the style of drafting employed in the reply, that an admission of that nature has in fact been made. In any event, the issue goes to the fundamental matter of jurisdiction of this Court to determine the proceedings on the merits and it should be examined in the interests of justice. Both parties were given notice of the issue.[97]Logan v GBR Helicopters & Ors (No. 2) [2021] QDC 239, [27]-[29].