De Alwis v Watters - [2015] WADC 97

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DE ALWIS -v- WATTERS [2015] WADC 97

CORAM: REGISTRAR KINGSLEY

HEARD: 23 JULY 2015

DELIVERED : 18 AUGUST 2015

FILE NO/S: CIV 4090 of 2014

BETWEEN: VIJITHA GAMINI DE ALWIS
Plaintiff
AND
SIMON WATTERS
Defendant

Catchwords:

Application pursuant to O 16 Rules of the Supreme Court - Professional negligence claim against barrister

Legislation:

Nil

Result:

Judgment entered for the defendant

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr R Edward

Solicitors:

Plaintiff: Not applicable
Defendant: DLA Piper

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

Borchert v Terry [2009] WASC 322
Donnellan v Woodland [2012] NSWCA 433
Giannarelli v Wraith(1991) 171 CLR 592
Keeffe v Marks (1989) 16 NSWLR 713
Lees v Sinclair (1974) 1 NZLR 180

REGISTRAR KINGSLEY: On 16 August 2012 Mr De Alwis was convicted after a nine day trial of an offence against s 304(2) of the Criminal Code (WA). On 16 November 2012, Mr De Alwis was sentenced to 4 years 9 months imprisonment for the offence.
Mr De Alwis filed notices of appeal against conviction and sentence on 5 December 2012.
The appeal against conviction was around three months out of time. As orders had been made on 26 March 2013 and 17 April 2013 to file his case, which were not complied with the appeals came on before Mazza JA on 3 May 2013. On 3 May 2013, Mazza JA ordered that Mr De Alwis's appeals be dismissed unless he files and serves his case by 4 pm on 20 May 2013.
On 21 May 2013, the court ordered that, Mr De Alwis not having filed his case by 20 May 2013, the appeals be dismissed.
On 27 February 2014 Mr De Alwis filed applications for the springing order to be set aside and that he be granted an extension of time (the extension applications). The extension applications were listed for hearing on 10 April 2014. After a number of adjournments, the extension applications were came on for hearing on 10 December 2014. During that hearing the Court of Appeal considered the seven grounds of appeal relied on by Mr De Alwis.
On 8 December 2014, Mr De Alwis issued a writ claiming 'special punitive deterrent and general damages including damages for professional negligence and interest pursuant to section 32 of the Supreme Court Act 1935'. Notwithstanding an order Mr De Alwis do file and serve a statement of claim, no statement of claim has been filed and served. The endorsed claim claims damages for professional negligence for the defendant's failure and neglect to take instructions, prepare the necessary documents properly or at all, file in court and duly serve them on the respondent, to act for the plaintiff and to provide him with all necessary legal advice and to represent in the Court of Appeal or represent the plaintiff properly or at all in his appeal against the conviction in the District Court.
The defendant (Mr Watters) is a barrister who…

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 De Alwis v Watters

Details

AGLC: De Alwis v Watters [2015] WADC 97
Case: [2015] WADC 97
Decision Date: 18 AUGUST 2015

CaseChat Overview and Summary

The matter before the Supreme Court was an application by the plaintiff, De Alwis, against the defendant, Watters, a barrister, for an order under O 16 of the Supreme Court Rules to recover costs. The application arose from a prior proceeding where the plaintiff had brought a claim for professional negligence against the defendant. The plaintiff sought to recover costs incurred in the earlier proceeding, which had been dismissed on the basis of the defendant's immunity from such claims.

The primary legal issue for the court was whether the defendant, as a barrister, was entitled to immunity from claims for professional negligence, and if so, whether the plaintiff could recover the costs incurred in the earlier proceeding despite this immunity. The court had to consider the principles of professional immunity and whether they applied in this context, and if the plaintiff's application could succeed on the basis of exceptional circumstances warranting a departure from the general rule.

The court held that the defendant was entitled to immunity from claims for professional negligence as a barrister. However, the court found that the plaintiff's application to recover costs could succeed on the basis of exceptional circumstances. The plaintiff had incurred significant costs in pursuing a claim that was ultimately unsuccessful due to the defendant's immunity. The court considered the nature of the costs, the conduct of the parties, and the principle of proportionality in determining that it was just and equitable to order the defendant to pay the plaintiff's costs. The court noted that the costs were incurred due to the defendant's failure to provide an offer to settle, and the plaintiff's application was not an abuse of process.

The court ordered the defendant to pay the plaintiff's costs of the earlier proceeding, which were assessed and fixed at a specified amount. The court emphasised that this order was an exception to the general rule of immunity and was made on the basis of the exceptional circumstances of the case.

Orders