1. The plaintiff’s claim and statement of claim be struck
out.
2. Leave for the plaintiff to replead be refused.
3. The proceedings be dismissed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the defendant applies to strike out the plaintiff’s claim and statement of claim – whether the defendant has immunity as a witness in the proceedings in respect of the claims advanced – whether the statutory causes of action are made out on the pleadings – whether the claims advanced are statute barred – whether causation between the alleged misleading conduct and the loss claimed is properly pleaded – whether the pleadings should be struck out – whether leave should be granted to the plaintiff to file an amended claim and statement of claim – whether the proceedings should be summarily dismissed.
EVIDENCE – ADDUCING EVIDENCE – WITNESSES – WITNESS IMMUNITIES – where the defendant was retained as an expert witness – where the plaintiff alleges the defendant was not qualified to give expert evidence – where the defendant provided reports for use at trial – where the plaintiff alleged the defendant had engaged in misleading conduct –whether the defendant can rely on witness immunity.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OF DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the plaintiff alleges the conduct the subject of the claims was in trade or commerce – whether conduct by a professional person as an expert in preparing reports for use at trial comprises conduct in trade or commerce.
[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.
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AGLC
CPZ v DHF [2017] QDC 308
Case
[2017] QDC 308
Decision Date
CaseChat Overview and Summary
The case of CPZ v DHF involved the plaintiff, CPZ, suing the defendant, DHF, over claims of misleading or deceptive conduct and breaches of consumer protection laws. DHF sought to strike out the plaintiff's claim, arguing various grounds including immunity as a witness, insufficiency of the pleadings, and statute of limitations. The case was heard in the Federal Court of Australia.
The court had to determine whether DHF was entitled to immunity as a witness in the proceedings, whether the statutory causes of action were adequately pleaded, whether the claims were barred by the statute of limitations, and whether the causation between the alleged misleading conduct and the claimed loss was properly pleaded. Additionally, the court needed to decide whether the pleadings should be struck out, whether leave should be granted to the plaintiff to amend the claim, and whether the proceedings should be dismissed.
In its decision, the court found that DHF's immunity as a witness did not extend to the advice given to CPZ, which was primarily intended to advise on the merits of the claim rather than to prepare evidence for court. The court further held that the immunity for advocate’s work does not cover negligent advice leading to a settlement agreement between parties. Instead, the immunity applies only when the advocate's work affects the conduct of the case in court and the resolution by the court. The court found that the plaintiff’s claims did not meet the necessary criteria for immunity and were insufficiently pleaded.
Consequently, the court ordered that the plaintiff’s claim and statement of claim be struck out, leave to replead be refused, and the proceedings be dismissed.
Orders
Orders of the court
1. The plaintiff’s claim and statement of claim be struck
out.
2. Leave for the plaintiff to replead be refused.
3. The proceedings be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Ward JA (with whom Emmett JA agreed) reached the same conclusion. Her Honour conveniently sets out the contentions advanced by the appellant from [234]. After reviewing Beasley JA’s decision in Commonwealth v Griffiths, her Honour observed:[248] In the present case, Ms Young argues that the relevant test is one that focuses on the purpose of the work carried out by the expert. Reliance is placed on what was said in Palmer v Durnford Ford (1992) QB 483 at 488 to 489 by Simon Tuckey QC sitting as a deputy High Court judge as to the test for witness immunity in relation to work preparatory to a hearing:In considering whether the immunity is so far reaching, I approach the matter by noting that experts are usually liable to their clients for advice given in breach of their contractual duty of care and secondly that the immunity is based upon public policy and should therefore only be conferred where it is absolutely necessary to do so. Thus, prima facie the immunity should only be given where to deny it would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.Accordingly I do not accept that the immunity can be as wide as that contended for. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all …Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. (underlining added)[249] Ms Young notes that this was approved in M (a Minor) v Newnham London Borough Council [1995] 2 AC 633 at 661G (one of the authorities to which Beazley JA had regard in Griffiths). Reference is also made to Stanton v Callaghan [2000] 1 QB 75, where Otton LJ referred to authority that the availability of witness immunity for alleged pre-hearing work depended on there being “principal and proximate connection” and Nourse LJ did not question the purpose test but queried whether the correct test should be the “principal” purpose, as suggested by Palmer, or the “substantial” purpose.[250] Ms Young contends that his Honour erred in that he did not determine whether the advice work was done for the purpose “and by implication with the intention” of the fifth respondent giving evidence in the proceeding.[251] In Griffiths, her Honour did not frame the test by reference to the purpose or intention, subjective or otherwise, of the person undertaking the work about which complaint is made. Rather, her Honour looked to see whether there was a connection between the work performed and evidence given or to be given in the subsequent hearing.[252] His Honour, while not expressly articulating the test adopted for determining whether the work undertaken by the engineer respondents was of a preparatory kind in connection with the litigation so as to come within the scope of the privilege, clearly had in mind (as evident from what his Honour said at [186]) that it was necessary for there to be a connection between the work in question and steps taken or to be taken in the conduct of the litigation. In particular, his Honour had regard to the connection between the advice “given in the course of proceedings” and the settlement which occurred ([189]) by reference to two matters: the report and “appropriate remediation plan” being “made available in the litigation” and the participation of the fifth respondent in the expert conclave that resulted in the production of the detailed drainage works document that formed part of the consent settlement in the proceedings ([186]).
Decision
Reasons for decision
Further, that the majority did not intend to create such a confined scope for advocate’s immunity is also evident plain from the summary of the majority decision at [1] to [6], where their Honours observed (footnotes omitted):[1] In these proceedings, the appellants claim that earlier litigation to enforce a guarantee was settled on terms unfavourable to the first appellant as a result of the negligent advice of the respondent, his solicitor at the time. The respondent has raised the advocate’s immunity from suit as a complete answer to the appellants’ claim. The respondent contends that the advocate’s immunity extends not only to negligent advice which leads to a final judicial determination, but also to negligent advice which leads to an agreed settlement.[2] In D’Orta-Ekenaike v Victoria Legal Aid, this Court held that the advocate’s immunity from suit under the common law of Australia in respect of his or her participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in court. In reaching that conclusion, the Court declined to reconsider its earlier decision in Giannarelli v Wraith, in which it was held that the advocate’s immunity extends to “work done out of court which leads to a decision affecting the conduct of the case in court.” That extension of the scope of the immunity was justified by the view that, as Mason CJ said: “it would be artificial in the extreme to draw the line at the courtroom door.” But the immunity was not extended to all work in any way connected to litigation. Mason CJ explained:“Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said: ‘… 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.’”[3] This statement of the scope of the immunity by Mason CJ was confirmed in D’Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity:“there 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 … ‘work intimately connected with’ work in a court. (We do not consider the two statements of the test differ in any significant way.)” (Footnotes omitted) [4] The present case raises the question whether the immunity extends to negligent advice which leads to the settlement of a case by agreement between the parties. The appellants contend that D’Orta does not support that extension. In the alternative, they argue that the immunity should be abolished.[5] The abolition of the immunity would require this Court to overrule its decisions in D’Orta and Giannarelli. For the reasons which follow, the appellants’ argument in this regard should be rejected. On the other hand, the appellants’ argument as to the scope of the immunity should be accepted. The authoritative test for the application of the immunity stated in D’Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute. No doubt an advice to cease litigating which leads to a settlement is connected in a general sense to the litigation which is compromised by the agreement. But the intimate connection required to attract the immunity is a functional connection between the advocate’s work and the judge’s decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. Both D’Orta and Giannarelli were concerned with claims which impugned a judicial determination to which the allegedly negligent work of the advocate contributed. As will be seen from a closer consideration of the reasoning in D’Orta, the public policy, protective of finality, which justifies the immunity at the same time limits its scope so that its protection can only be invoked where the advocate’s work has contributed to the judicial determination of the litigation.[6] In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties’ agreement was embodied in consent orders. (underlining added)