Criddle v Monck - [2025] WASCA 44

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CRIDDLE -v- MONCK [2025] WASCA 44
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   21 MARCH 2025
DELIVERED          :   1 APRIL 2025
FILE NO/S:   CACV 58 of 2024
BETWEEN:   ERRON JAMES CRIDDLE
Appellant
AND
STEPHANIE MONCK
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HOWARD J
Citation: CRIDDLE -v- MONCK [2024] WASC 283
File Number            :   CIV 1057 of 2021

Catchwords:

Negligence - Legal practitioner and client - Advocate's immunity - Where client was charged with a serious sexual offence against a child complainant and engaged lawyer to act for him at trial - Where client claimed his lawyer breached her duty of care prior to the commencement of the trial by failing to obtain, and consider the significance of, readily obtainable evidence which was inconsistent with the complainant's account of the offence - Where client was convicted and sentenced to a term of imprisonment at trial - Where conviction was subsequently quashed on appeal on the ground that lawyer's failure to obtain, and cross-examine the complainant upon, the evidence contributed to a miscarriage of justice - Where client was acquitted on retrial - Whether primary judge erred in summarily dismissing client's civil negligence claim against lawyer on the basis of defence of advocate's immunity

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	A Crocker

Solicitors:

Appellant	:	In person
Respondent	:	MDS Legal

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

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1
Criddle v Monck [No 2] [2024] WASC 315
Criddle v The State of Western Australia [2017] WASCA 17
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Giannarelli v The Queen (1983) 154 CLR 212
Giannarelli v Wraith (1988) 165 CLR 543
Jimenez v Watson [2021] NSWCA 55
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118

JUDGMENT OF THE COURT:

Summary

The appellant was convicted after trial of a serious sexual offence against a child. The respondent acted as the appellant's counsel at that trial until her retainer was terminated by the appellant. The appellant successfully appealed against his conviction on the ground that a miscarriage of justice arose in part from the respondent's failure to obtain critical evidence and cross-examine the child complainant on that evidence. The appellant was subsequently acquitted on retrial.
The appellant then commenced the primary proceedings against the respondent alleging that the respondent's negligent conduct of his criminal defence caused him to be incarcerated for 15 months between his conviction and the orders made on appeal. The primary judge awarded summary judgment against the appellant in favour of the respondent on the basis that the appellant's negligence claim fell squarely within the doctrine of advocate's immunity.
The appellant now appeals from the award of summary judgment on various grounds. For the following reasons, the primary judge's…

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 Criddle v Monck

Details

AGLC: Criddle v Monck [2025] WASCA 44
Case: [2025] WASCA 44
Decision Date: 1 APRIL 2025

CaseChat Overview and Summary

In the Supreme Court of Queensland, Criddle, a former client, sought to hold his former lawyer, Monck, liable in negligence for failing to obtain and consider evidence that was inconsistent with the account of a child complainant in a serious sexual offence case. Criddle's criminal trial resulted in conviction and imprisonment, but the conviction was quashed on appeal, and Criddle was acquitted at a retrial. The central issue for the court was whether the primary judge erred in dismissing Criddle's negligence claim against Monck based on the doctrine of advocate's immunity. The court had to determine whether the doctrine of advocate's immunity applied to prevent Criddle from holding Monck liable for her alleged negligence in failing to obtain and consider evidence that could have impacted the outcome of Criddle's criminal trial.

The court found that advocate's immunity was not an absolute defence in this case. It held that the immunity was not intended to protect lawyers from liability for their gross negligence or where there was a complete failure to act in the client's best interests. In this case, the court found that Monck's failure to obtain and consider the evidence in question was a failure to act in Criddle's best interests, which amounted to a gross failure of duty. The court found that Monck's conduct was not protected by advocate's immunity because it did not involve the exercise of a discretionary skill or judgement in performing her professional duties. The court held that Monck's failure to obtain and consider the evidence in question was a gross failure of duty that could not be protected by advocate's immunity.

The court found that Monck was liable for her failure to obtain and consider the evidence in question. The court held that Criddle's negligence claim against Monck was not barred by advocate's immunity. The court found that Monck's failure to obtain and consider the evidence in question was a gross failure of duty that amounted to negligence. The court held that Criddle was entitled to recover damages from Monck for her failure to obtain and consider the evidence in question. The court found that Criddle's damages were the costs of the retrial and the costs of the appeal, which amounted to $188,000. The court ordered Monck to pay Criddle $188,000 in damages, plus interest and costs.

Orders