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 has his chambers at Albert Wolfe Chambers. In an affidavit sworn by Richard Fairley Frederick Edwards on 10 March 2015, Mr Watters was advised on 18 September 2012 that legal aid had been granted to Mr De Alwis for Mr Watters to investigate and advise on a possible appeal against Mr De Alwis' conviction and sentence in the District Court. By an email dated 24 October 2012, Mr Watters was advised that additional legal aid had been granted to the plaintiff to cover additional preparation and review of the trial transcript. By letter dated 30 October 2012, Mr Watters wrote to Mr De Alwis' daughter requesting that she ask Mr De Alwis to provide a written statement for the grounds of a request for and adjournment before the trial judge.
By letter dated 12 November 2012, Mr Watters provided the instructing solicitor with his opinion that there was merit in an appeal and advised he would prepare the grounds of appeal.
In November 2012 Mr Watters attended a meeting with Mr De Alwis and his daughter at Casuarina Prison to discuss the appeals and, after a request by Mr De Alwis to provide copies of s 4 and s 17 of the Criminal Code, Mr Watters provided copies of those sections to him.
On 5 December 2012 Mr Watters was advised that additional legal aid had been granted to the plaintiff to cover further attendances by Mr Watters on Mr De Alwis in prison to discuss the appeals and by letter dated 6 December 2012, Mr Watters provided his instructor with a copy of the appeal notices for conviction and for sentence. The appeal notices as filed on 6 December 2012 were amended by consent and the appeal grounds expanded and orders were made to that effect by Registrar Bush the Supreme Court appeal registrar on 13 December 2012.
By letter dated 18 December 2012 Mr De Alwis wrote to Mr Watters alleging he was negligent and instructed him to cease acting. Mr Watters thereafter ceased acting for Mr De Alwis.
On 10 March 2015 the Court of Appeal, having heard the matter on 10 December 2014, dismissed the applications for extension of time and dismissed Mr De Alwis' appeal.
The defendant's application is pursuant to O 16 Rules of the Supreme Court seeking summary judgment. The legal onus remains on the defendant to show that there is no serious question to be tried on any cause of action raised by the plaintiff. The defendant will succeed if he can demonstrate there is no serious question to be tried on any cause of action raised by the plaintiff. The plaintiff may be confined in the causes of action raised by his writ of summons or statement of claim.
The general test applicable to applications to dismiss a plaintiff's case has been variously described, but is succinctly expressed by Kenneth Martin J in Borchert v Terry [2009] WASC 322 where his Honour states at [51]:
I approach the summary judgment issue then on the basis of assessing whether the plaintiff's case, as it now presents, is so misconceived, or flawed in its argued construction that essentially it can be comfortably evaluated as lacking any realistic prospect of success at a trial.
It is the case at common law that an advocate cannot be sued by their client for negligence in the conduct of a case or for work done out of court which leads to a decision effecting the conduct of a case. In order for 'out of court work' to fall within the protection of advocate immunity, there must be an intimate connection with the conduct of the case in court that it can fairly be said to be preliminary decision affecting the way that cause is to be conducted when it comes to a hearing: Lees v Sinclair (1974) 1 NZLR 180, 187.
The summary judgment application is out of time, both in terms of the rules and my order made 23 January 2015 where I ordered that the time within which the defendant may bring an application be extended to 6 March 2015.
In an affidavit sworn 17 June 2015 by Richard Edwards, Mr Edwards deposes that his firm were engaged on 23 December 2014 – a previous firm having entered an appearance. At the directions hearing on 23 January 2015, I ordered that, on or before 27 February 2015, Mr De Alwis file and serve a statement of claim. Mr Richards deposes that he caused the summary judgement application to be drafted, the bulk of that work being done after 27 February 2015 when it was obvious no statement of claim had been filed.
The summary judgement application was filed on 10 March 2015. Having regard to the fact that the application is just out of time, the explanation for delay, and noting that there is no prejudice to the plaintiff, leave is given to bring the application.
Mr De Alwis has failed to comply with an order of court to serve a statement of claim. One can discern from the indorsed writ that the claim of Mr De Alwis against Mr Watters is one of negligence in that Mr Watters was negligent in:
Taking and following the plaintiff's instructions
Providing legal advice to the plaintiff
Preparing necessary appeal documents
Failing to represent the plaintiff in the Court of Appeal of the Supreme Court of Western Australia.
In my opinion, the work identified in those grounds – noting that Mr Watters was not given the opportunity to represent Mr De Alwis at the hearing of the appeal as his retainer had been terminated by Mr De Alwis - is intimately connected to the conduct of Mr De Alwis' case and therefore the immunity applies. In relation to advice, the giving of legal advice is an integral part of an advocate's role. If the giving of advice ' … lead to a decision to continue with the case, or meant that the case was continued … such conduct would lead to a decision affecting the conduct of the case in court': Donnellan v Woodland [2012] NSWCA 433.
Mr Watters prepared and filed the appeal grounds in relation to Mr De Alwis' appeal. In my opinion, the preparation of the appeal documents is intimately connected with the conduct of the plaintiff's case. Keeffe v Marks (1989) 16 NSWLR 713 is authority for the proposition that working up any necessary legal documents, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be taken to have the pleadings amended are examples of work that are considered intimately connected with the conduct of the case.
The immunity to a barrister, and indeed a solicitor acting in a litigated matter, applies to work in court or in connection to in court work: Mason CJ in Giannarelli v Wraith (1991) 171 CLR 592, 559 ‑ 560, noted that it was artificial in the extreme to draw the line at the courtroom door and went on to say that the connection to in court work includes work done in court and work done out of court which leads to a decision affecting the conduct of the case in court.
At the hearing of the O 6 application, Mr De Alwis complained that he did not have copies of submissions, the affidavits of Richard Edwards sworn 10 March 2015, 9 June 2015, and 17 July 2015, nor a copy of an authority to be relied on by the defendant's counsel. Copies of the relevant documents were immediately made and handed to Mr De Alwis by my associate on 23 July 2015, the day of the hearing. I then gave Mr De Alwis until 14 August 2015 to file and serve written submissions. No submissions have been filed. In my opinion Mr De Alwis has been given sufficient opportunity to present his case.
Accordingly in my opinion Mr De Alwis' case lacks any realistic prospect of success at trial and judgment should be entered for the defendant.