Darrin Michael Gillies v William Brewer - [2014] NSWSC 1198

Supreme Court

New South Wales

Medium Neutral Citation: Darrin Michael Gillies v William Brewer [2014] NSWSC 1198
Hearing dates: 15 August 2014
Decision date: 15 August 2014
Before: Rothman J
Decision:
(1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, the proceedings be dismissed against the first and second defendants on the basis that:
(a) No reasonable cause of action is disclosed;
(b) By virtue of the operation of s 14 of the Limitation Act 1969, the proceeding is not maintainable; and
(c) To the extent not otherwise covered by 1(a) above, the first and second defendants are immune from suit.
(2) The plaintiff shall pay the first and second defendants costs of and incidental to the motion and the proceedings.

Catchwords: ADVOCATES' IMMUNITY - barrister and solicitor sued for work done in court or closely connected therewith - unclear whether contract or tort - work done on criminal proceedings - plaintiff convicted - conviction upheld on appeal and grounds related to impugned conduct were dismissed - no possible damage - immunity applies - abuse of process - proceedings summarily dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: Adams by her friend O'Grady v State of New South Wales [2008] NSWSC 1257
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Attorney-General (NSW) v Spautz [2001] NSWSC 66
Argyropoulos v Layton [2002] NSWCA 183
Bird v Ford [2013] NSWSC 264
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Brewer v Brewer [1953] ALR 441; (1953) 88 CLR 1
Clavel v Savage [2013] NSWSC 775
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Donnellan v Woodland [2012] NSWCA 433 General Steel Industries v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Gillies v DPP (NSW) [2008] NSWCCA 339
Haines v Australian Broadcasting Authority [1995] NSWSC 136; (1995) 43 NSWLR 404
Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539
Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22
Kelly v Jowett [2009] NSWCA 278
Lanphier v Phipos (1838) 8 Car. & P. 475
MacRae v Stevens [1997] ANZ ConvR 129
O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81-23
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin [2001] NSWCA 142
Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Ward v Lewis (1896) 22 VLR 410
Wilson v Rigg [2002] NSWCA 246
Category: Principal judgment
Parties: Darrin Michael Gillies (Plaintiff)
William Brewer (First Defendant)
Lesly Randle (Second Defendant)

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.

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Details

Case: [2014] NSWSC 1198
Decision Date: 15 August 2014

CaseChat Overview and Summary

Darrin Michael Gillies initiated legal action against William Brewer, his former defence lawyer, alleging professional negligence in the handling of his criminal trial. The dispute reached the Federal Court of Australia, where the court was tasked with determining whether the legal professionals involved in the criminal proceedings were entitled to immunity from such claims. The court had to discern whether the matter was one of contract or tort, given the intricacies of the relationship between the parties and the nature of the legal services provided.

The court examined the scope of advocates' immunity, specifically whether it applied to the work performed by the solicitor and barrister in relation to the criminal proceedings. The plaintiff's conviction was upheld on appeal, and the grounds of appeal related to the conduct in question were dismissed, establishing that there was no possible damage resulting from the impugned conduct. The court found that since the plaintiff could not demonstrate any actionable harm flowing from the conduct, the immunity extended to the legal professionals involved. Additionally, the court considered whether the proceeding against the legal professionals constituted an abuse of process, ultimately concluding that the application was frivolous and vexatious.

The court ruled that the immunity afforded to legal professionals for work done in court or closely connected with it applied in this instance, as the plaintiff could not establish any damages resulting from the impugned conduct. The court found that the proceeding against the legal professionals was an abuse of process and summarily dismissed the case. The orders of the court reflected this determination, dismissing the plaintiff's claims and affirming the immunity of the legal professionals involved in the criminal proceedings.

Orders