Carey v Wojtowicz Kelly Legal - [2009] WASC 259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CAREY -v- WOJTOWICZ KELLY LEGAL [2009] WASC 259

CORAM: MASTER SANDERSON

HEARD: 18 AUGUST 2009

DELIVERED : 18 AUGUST 2009

PUBLISHED : 11 SEPTEMBER 2009

FILE NO/S: CIV 2829 of 2008

BETWEEN: KAREN SANDRA CAREY
Plaintiff
AND
WOJTOWICZ KELLY LEGAL (A Firm)
Defendant

Catchwords:

Practice and procedure - Application to strikeout statement of claim on basis plea could not succeed because of advocate's immunity - Turns on own facts

Legislation:

Nil

Result:

Statement of claim struck out
Leave to replead

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr S F Popperwell

Solicitors:

Plaintiff: In person
Defendant: Pynt & Partners

Case(s) referred to in judgment(s):

D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Giannarelli v Wraith (1988) 165 CLR 543
Rees v Sinclair [1974] 1 NZLR 180
Symonds v Vass [2009] NSWCA 139

MASTER SANDERSON: This was the defendant's application to strikeout the plaintiff's statement of claim. Prior to the matter being heard, the parties had discussed the defendant's complaints about the statement of claim and many of the matters at issue had been resolved. The defendant's remaining complaint had to do with a plea which the defendant alleged fell foul of the so‑called advocate's immunity. At the conclusion of the hearing I indicated that I would strikeout the statement of claim but I would give the plaintiff leave to replead. I indicated I would publish reasons for my decision. These are those reasons.
The action is brought by the plaintiff against a firm of solicitors. The plaintiff says that since the age of 13 she has suffered from mitral valve prolapse. In June 1996 the plaintiff underwent surgery to repair the mitral valve in her heart or, if repair was not possible, to replace the valve. Complications arose after this surgery and in June 1997 it was necessary for the plaintiff to undergo further surgery. Again, complications followed. In 2001 the plaintiff resolved to take legal action in relation to the 1997 surgery. She retained the defendant for that purpose.
Eventually the matter went to trial. The trial commenced in February 2004 in the Federal Court before Justice Keifel. On 4 July 2004 Keifel J handed down a decision dismissing the plaintiff's claim. The plaintiff instituted an appeal against Keifel J's decision but was unable to provide security for costs in an amount ordered by the court and her appeal was struck out. Essentially the plaintiff's argument is that her case was negligently handled by her solicitors.
As the pleading stands at present the plaintiff's complaints are set out in par 25 of the statement of claim. Because of the importance of that paragraph, I will quote it in full:
25.Prior to and during the course of the hearing of the Federal Court Action the Defendants failed to:
25.1properly instruct the Plaintiff's Counsel in relation to the Plaintiff's information so that the Plaintiff's information was conveyed to Justice Keifel that the risk of thromboembolism with a mechanical valve was 2‑5% per patient year and that the term 'per patient year' meant that risk was multiplied by the number of years the valve is implanted;
25.2failed to properly instruct and assist Counsel in cross examination of the First, Second and/or Third Respondents and their witnesses in relation [sic] issues that were established well in advance of the trial, and identified in the affidavits, including:
A.The need to know the rates at which complications occur to be able to decide the best option between a mechanical and tissue valve;
B.the meaning of 'per patient year' was that the true risk was 2‑5% multiplied by the number of years the valve is implanted;
C.The statistical method used to derive this rate and its reliability;
D.The data collection method used for studies of this nature Guidelines for Reporting Morbidity and Mortality after Cardiac Valvular Operations by Edmunds H L et al, which sets out the levels of injury to be included in the study;
E.The key published studies that specifically state, of the thromboembolic events recorded, how many related to significant injury, serious injury and death;
F.What the Second and Third Respondents considered the rates of key complications were, how they used that information to make a decision on which option to recommend, and on which information sources they relied to find this information;
G.What the Second and Third respondents understood from the information provided in the:
i.the Product Information Booklet
ii.the Physicians' Reference Manual
H.The suppression of key published studies from the Physicians' Manual, specifically the 10 Year Summary document;
I.The suppression of the Plaintiff's injuries from the report to the TGA, FDA and doctors;
J.The provision of false information to the TGA specifically in relation to:
i.the location of the valve and its availability for testing by the TGA;
ii.the claim that no similar incidents had been reported when in fact there were at least several hundred similar incidents; and
iii.the cause of the Plaintiff's explant.
K.The change in trends showing that the use of mechanical valves was drastically dropping in favour of tissues valves and the reason for this change
L.whether the pericarditis the Plaintiff suffered was 'reactive' or 'infective'
M.whether, given that the Plaintiff was not using the contraceptive pill, she had any condition of her blood that made her more susceptible to clotting;
N.the cause of the Plaintiff's mitral insufficiency.
25.3Failed to properly prepare the Experts to explain in court that the meaning of 'per patient year' was that the true risk was 2‑5% multiplied by the number of years the valve is implanted;
25.4Failed to adequately prepare the witness statements so that the expert witnesses explained to the Court:
A.That to be properly informed a patient must be told of the treatment options, the expected outcomes including complications, and the rates at which the complications occur;
B.That the complications associated with a mechanical valve and tissue valve are similar but the rates at which they occur vary significantly;
C.The need to know the rates at which complications occur to be able to decide the best option between a mechanical and tissue valve;
D.the meaning of 'per patient year' was that the true risk of thromboembolism associated with a mechanical valve was 2‑5% multiplied by the number of years the valve is implanted;
E.The statistical method used to derive this rate and its reliability;
F.The data collection method used for studies of this nature Guidelines for Reporting Morbidity and Mortality after Cardiac Valvular Operations by Edmunds H L et al, which sets out the levels of injury to be included in the study;
G.The key published studies that specifically state, of the thromboembolic events recorded, how many related to significant injury, serious injury and death;
H.The cause of the Plaintiff's vision loss.
25.5Failed to adequately prepare the Plaintiff's witness statement to address issues raised by the Respondents including:
A.whether the Plaintiff had a previous history of heavy bleeding with menstruation, and
B.whether the Plaintiff was on the contraceptive pill
25.6Failed to adequately brief the preparation of the economic losses report by KPMG in a form that would be accepted by the Court.
The defendant complains that properly considered this paragraph alleges that the defendant was negligent in the preparation and presentation of the plaintiff's case in the Federal Court. That being so, it is said the plea cannot stand because advocate's immunity would prevent any finding in the plaintiff's favour.
The existence of advocate's immunity is not in question. It is the extent of that immunity which causes difficulty. In Giannarelli v Wraith (1988) 165 CLR 543, 560 Mason CJ said '[T]he immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court'. His Honour did not, in this sentence, mention the qualification that the work involved must be 'intimately connected with the conduct of the court case'. Nevertheless, Mason CJ expressly approved what was said by Mccarthy P in Rees v Sinclair [1974] 1 NZLR 180. In that decision his Honour said:
I cannot narrow the protection to what is done in Court: it must be wider than that and include some pre‑trial work. Each piece of before‑trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, and that is why I would not be prepared to include anything which does not come within the test I have stated (187).
The matter was further considered in the leading High Court decision of D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1. Dealing with the extent of the immunity, the majority (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) held that the instructing solicitor who was not acting as an advocate was entitled to immunity. Their Honours said:
[T]here is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court'; or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, 'work intimately connected with' work in a court (We do not consider the two statements of the test differ in any significant way.) (31). (footnotes omitted)
The most recent case dealing with the scope of advocate's immunity is the decision of the New South Wales Court of Appeal in Symonds v Vass [2009] NSWCA 139. Ipp JA, in the course of his judgment, reviewed the authorities exhaustively and said:
The appellants say that, prior to the commencement of the hearing, the respondent, having been instructed to act as their solicitors, did not analyse and prepare the case properly, did not analyse and consider the damages that the appellants were claiming, did not properly plead and particularise the elements of their damages claim, did not properly consider what evidence was necessary to prove their damages, did not have that evidence ready to adduce at trial, and proceeded to trial with the case as to damages inadequately prepared [119].
His Honour said that such a claim could not succeed. His Honour concluded:
[I]nsofar as complaint is made of action or inaction prior to the commencement of the hearing, it concerns matters that were intimately connected with the work ultimately done in court, that is to say, the presentation of the appellants' claim for damages and any consequential relief to which they were also entitled [121].
The position in Western Australia, however, is not quite so clear cut. In Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85, the Court of Appeal considered relevantly whether advocate's immunity extended to a case which the appellant said was pleaded on the wrong basis. That is to say it was the appellant's case that at trial the pleaded case in relation to damages was incorrectly put with the consequence that the successful outcome of the case was overturned on appeal. At first instance, I held that such a plea could not be made because it fell foul of advocate's immunity. The Court of Appeal reversed that decision. Their Honours said:
It is not difficult to envisage situations where the manner in which a case is pleaded would affect the way the case was conducted in court, so that any claim that an advocate was negligent in failing to plead the case differently would involve re‑opening the earlier decision in an endeavour to prove that the result would have been different.
Where, however, it is alleged that the advocate advised the client to pursue, and pleaded on the client's behalf, a cause of action or a head of damage which as a matter of law was doomed to failure - and which duly failed - it is not so easy to see that a claim for negligence against the advocate involves the re‑opening of the original controversy or touches upon matters which fall within the principles identified by the High Court as underlying the immunity [91] ‑ [92].
It is difficult to square this statement of principle with what was said by Ipp JA in the Symonds decision. However, it must be taken to represent the law in Western Australia. So a claim pleaded on that basis would not be struck out and could proceed to trial. It remains to be seen whether the plaintiff's case can be pleaded on that basis. There is one additional matter which was mentioned in the Alpine Holdings decision and which may be relevant to any revised pleading. The Court of Appeal were of the view that a claim based on s 10 of the Fair Trading Act 1987 (WA) was arguable. That is to say the court was prepared to allow a claim that in giving allegedly negligent advice, a solicitor could be liable under the statute. The court said that it was an open question in Australia as to whether or not advocate's immunity would stand in the way of any claim under the Act. Clearly, if such a plea was made by the plaintiff in this case, it would not be liable to be struck out.
On publication of these reasons I will give directions as to the time within which an amended statement of claim ought be filed.