Del Borrello v Friedman and Lurie (a firm) - [2001] WASCA 348

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: DEL BORRELLO -v- FRIEDMAN AND LURIE (A FIRM) & ANOR [2001] WASCA 348

CORAM: KENNEDY J
WALLWORK J
MURRAY J

HEARD: 21 MARCH 2000

DELIVERED : 6 NOVEMBER 2001

FILE NO/S: FUL 69 of 1999

BETWEEN: PETER DEL BORRELLO
Appellant (Plaintiff)
AND
FRIEDMAN AND LURIE (A FIRM)
First Respondent (First Defendant)
KEN JAMES MARTIN
Second Respondent (Second Defendant)

Catchwords:

Legal practitioners - Negligence - Barrister - Immunity -Whether liable for not pleading that stipulation in contract a penalty - Instructing solicitor not acting as an advocate - Liability of solicitor

Summary judgment - Onus - Need for caution in exercising power - Plaintiff's version of facts to be accepted if not inherently incredible

Agreement - Compromise of dispute regarding costs - Whether extending beyond compromise of costs dispute to a compromise of all claims between the parties

Legislation:

Nil

Result:

Appeal allowed as against first respondent
Appeal dismissed as against second respondent

Category: A

Representation:

Counsel:

Appellant (Plaintiff)  :        Mr G A Lacerenza
First Respondent (First Defendant)          :        Mr J D Allanson
Second Respondent (Second Defendant) :        Mr E M Corboy

Solicitors:

Appellant (Plaintiff)  :        G A Lacerenza & Associates
First Respondent (First Defendant)          :        Blake Dawson Waldron
Second Respondent (Second Defendant) :        Jackson McDonald

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

Arthur J S Hall & Co v Simons [2000] 3 WLR 543
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209
Butler v Fairclough (1917) 23 CLR 78
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Giannarelli v Wraith (1988) 165 CLR 543
Harris v Osbourn (1834) 2 Cr & M 629
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Keefe v Marks (1989) 16 NSWLR 713
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Primary Building Co Pty Ltd v Beris Pty Ltd, unreported; SCt of WA (Pidgeon J); Library No 7095; 19 April 1988
Rees v Sinclair [1974] 1 NZLR 180
Rondel v Worsley [1969] 1 AC 191
Saif Ali v Sydney Mitchell & Co [1980] AC 198
Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436
Underwood, Son and Piper v Lewis [1894] 2 QB 306
Webster v Lampard (1993) 177 CLR 598
Wenlock v Moloney [1965] 1 WLR 1238
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71

Case(s) also cited:

Barton v Armstrong [1976] AC 104
Cockerill v Westpac Banking Corp (1996) 142 ALR 227
Edwards Karwacki Smith & Co Pty Ltd v Jacka Nominees Pty Ltd (In Liq) (1994) 15 ACSR 502
Fell v Brown (1791) Peake 131; 170 ER 104
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Kew Cottages and St Nicholas Parents Associates Inc v Minister for Health and Community Services for the State of Victoria, unreported; SCt of Victoria (Eames J); 5269/1995; 18 July 1995
Lotus Development Corp v Mayne Nickless Ltd (1991) 100 ALR 167
Murphy v Yolanda Nominees Pty Ltd, unreported; SCt of Victoria (Nathan J); 11681 of 1991; 13 March 1991
Pao On v Lau Yiu Long [1980] AC 614
Thesius Exploration NL v Foyster (1972) 126 CLR 507
Unilan Holdings Pty Ltd v Kerin (1992) 107 ALR 710
Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] AC 366

KENNEDY J: This is an appeal from a decision of a Master of this Court granting in favour of each respondent an order for summary judgment against the appellant and an order dismissing the appellant's action.
The first respondent is a firm of solicitors which, on 5 August 1992, accepted instructions to act for the appellant in proceedings in the District Court brought against him by a builder, J‑Corp Pty Ltd, for the sum of $54,799.30, together with interest thereon, being the balance claimed to be owing to it by the appellant under five separate building contracts. The appellant had counterclaimed against the builder damages for breach of contract. Initially, another firm of solicitors, Messrs Kott Gunning had represented the appellant in these proceedings; but when the action was set down for hearing for four days, commencing on 7 September 1992, the member of that firm who was acting for the appellant was due to go on annual leave and for that reason was unable to complete the necessary preparation of the appellant's case prior to the hearing. The appellant therefore instructed Messrs Kay Goldstein to act for him in place of Messrs Kott Gunning.
Messrs Kay Goldstein subsequently represented the appellant in an unsuccessful appeal against a decision of a Registrar of the District Court dismissing the appellant's application for orders for interrogatories and for the inspection of certain documents. Mr A Kay, a member of that firm, telephoned Mr N Friedman, a partner in the first respondent, on the morning of 5 August 1992, advising him that, although his firm had accepted instructions from the appellant in the proceedings brought against him by J‑Corp Pty Ltd, by reason of a lack of available staff due to annual leave and his own arrangements presently to travel overseas, there was no person in his firm capable of dealing with the matter. Mr Kay told the first respondent that the action was listed for hearing and that, having discussed the position at length with counsel, he was of the opinion that the appellant's pleadings would need to be recast in order properly to deal with the appellant's defence and counterclaim and that, in these circumstances, it may be necessary to apply to vacate the trial dates. Mr Friedman, at the request of Mr Kay, agreed to undertake urgently a review of the appellant's position and, if need be, to represent him.
Mr Friedman discussed the status of the proceedings with counsel who had been instructed by Mr Kay. Counsel had confirmed his view that the appellant's case had been inadequately pleaded. It became necessary, however, for Mr Friedman to brief another counsel because counsel retained by Mr Kay was unavailable during the period 15 August to 3 September 1992, when a great deal of work would necessarily have to be undertaken.
On the same day, 5 August 1992, the appellant consulted Mr Friedman, who agreed to act for him. Mr Friedman had the appellant sign a document which was described as "Terms of Engagement Agreement". The terms of engagement appear only to have been concerned with matters relating to the first respondent's costs and disbursements. The document commenced with an acknowledgment that, in consideration of the first respondent's agreeing to act for the appellant and/or continuing to act for the appellant, the first respondent should have the rights set out therein in relation to its remuneration and any disbursements incurred by it in connection with any matter, action or thing undertaken, performed, or to be undertaken or performed by the first respondent on the appellant's behalf.
Late in the evening of the following day, Mr Friedman telephoned the second respondent, Mr K J Martin, a member of the Independent Bar, offering him a brief to appear as counsel on behalf of the appellant at the trial of the action and to advise on getting the appellant's case ready for trial. Mr Martin accepted the brief. Having regard to the urgency of the matter, a conference was arranged for Saturday, 8 August 1992. The conference ran from approximately 8.15 am until 5.00 pm. Mr Friedman and Mr Martin were present throughout, while the appellant was said by Mr Martin to have been present "at various times". Mr Martin deposed in his affidavit that he had spent the day reading and reviewing the pleadings, as well as examining the documents in the case and discussing the essence of the case with Mr Friedman and the appellant. It became obvious that a considerable amount of preparation for the trial remained to be attended to in the limited time available.
Mr Martin said that he conferred again with Mr Friedman and the appellant on the evening of Sunday, 9 August 1992. He believed that one of the matters for consideration at that meeting was whether or not an application for an adjournment should be made. Having been through the available material, Mr Martin advised Mr Friedman and the appellant that he did not consider there to be any merit in the pleaded claim for aggravated and exemplary damages in the appellant's counterclaim for damages for breach of contract, as to which, see Butler v Fairclough (1917) 23 CLR 78 at 89 and Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 80 ‑ 82. Mr Martin believed that, at the same time, he expressed the view that the appellant's claim against J‑Corp Pty Ltd for misleading and deceptive conduct, contrary to s 52 of the Trade Practices Act 1974 (Cth), appeared to be completely lacking in the material facts necessary to sustain such a plea.
Mr Martin went on to depose that the conference on 9 August 1992 had concluded upon the basis that he would consider the case further, and prepare a minute of amended defence and counterclaim in order to encapsulate more precisely the appellant's case for breach of contract. On 12 August 1992, Mr Martin prepared a draft minute of proposed amended defence and counterclaim and he believed that he had forwarded the draft minute to Mr Friedman so that it could be served on the solicitors for J‑Corp Pty Ltd, together with an application for leave to amend the pleadings. The appellant's pleadings were amended by leave on 24 August 1992. It appears that, in the application for leave to amend the appellant's pleadings, there had been an alternative order sought for the vacation of the trial dates. In this respect, as in so many other respects, the material before us was incomplete. All that is apparent is that no adjournment was granted, presumably on the basis that the application for the amendment of the pleadings had been successful. The likelihood of obtaining an adjournment at that stage would have been very slim indeed.
Mr Martin deposed in his affidavit in support of his application for summary judgment that, at no stage, either before, during or after the trial dates on which he appeared as counsel, did the appellant ever convey to him any dissatisfaction at all with the manner in which the trial had been conducted, either by reference to the state of the pleadings or at all. Indeed, he added, the appellant sought for some time to engage him as counsel to represent him at the recommencement of the trial after the original allocation of four days had proved to be inadequate, and it was only due to a failure by the appellant to secure replacement instructing solicitors within a reasonable time after the first appellant had terminated its retainer that he was unable to act for the appellant when the trial resumed.
In any event, the trial commenced on 7 September 1992, with Mr Martin appearing as counsel for the appellant on the four days allotted for the hearing. Mr Martin believed that the appellant was present in court on each of those days. On the last day, it became obvious that the trial would not be completed in the available time, and arrangements were made with the trial Judge for the trial to be adjourned after J‑Corp Pty Ltd had closed its case and some of the defence evidence had been led, in order that the appellant could give his evidence-in-chief and be cross-examined at a later date in one uninterrupted sitting of the court.
A dispute between the appellant and the first respondent developed almost immediately after the trial had been adjourned. It centred on the matter of the appellant's costs. The appellant had not then expressed any concern about the manner in which the trial had been conducted by the respondents. On 11 September, there was a telephone conversation between the appellant and Mr Friedman during which the future conduct of the action and the question of costs were discussed. On that day, Mr Friedman wrote a letter to the appellant, confirming that the trial had been adjourned to a date to be fixed in order to have the appellant's evidence called "and that of any further witnesses who may be called on your behalf, including Mr Joseph Leahy", to whom reference is made later. The letter went on to refer to Mr Friedman's discussion with Mr Martin in relation to the potential additional costs needed to finalise the action, which was likely to involve a further three days of hearing. To that letter were attached an account from Mr Martin in the sum of $20,000, an account from another firm of solicitors who had acted for Mr Leahy in having a writ of subpoena directed to him set aside by the trial Judge, and a further account from the first respondent in the sum of $10,588.80.
The relevant portions of the letter read as follows:
"I confirm that you have this morning advised me that the only moneys available to you in respect of the costs of this action are the subject of the Letter of Request and Indemnity dated 27 August 1992 directed to the Commonwealth Bank of Australia, Belmont in the amount of $30,000.00.
. . . . . . . . . . . . . . . . . . . . . . . . . .
My account in respect of time spent in relation to the matter (excluding the time occupied on 11 September 1992 itself) in the amount of $10,588.84 is attached. You will see that there is now a shortfall.
You will appreciate that I am unable to continue acting for you unless I have sufficient funds placed in trust for that purpose.
You will recall executing this firm's Terms of Engagement Agreement on 5 August 1992. A copy of that document is attached.
As previously explained to you, I have not increased the charge out rate for work done on your behalf as envisaged by Clause 4(1) of the Agreement. I did, however, reserve my right to do so in prior correspondence to you at a time when I rendered to you an interim account.
I reiterate that whilst the attached account also does not record time at a rate higher than the standard $225.00 per hour, I continue to reserve my right to so increase the rate.
I confirm also advising you that it is my view that you should urgently seek financial assistance from members of your family so that your position in respect to this matter may be protected.
It would be most undesirable if [J‑Corp Pty Ltd] comes to know of your financial predicament. The knowledge of your situation will undeniably cause your position to be significantly weakened and will make any reasonable settlement discussions (if they are to be embarked upon) entirely untenable from your point of view.
In the circumstances, I must formally advise you that this firm is unable to continue acting for you unless and until sufficient funds are provided by way of deposit for such anticipated work.
I accordingly call upon you to deal with this matter as a matter of urgency and I must advise you that unless I have your formal written communication as to how you propose to deal with the financial aspect of your case by close of business on Monday, 14 September 1992, I will be obliged to make application to Court that this firm cease to be your solicitor of record."
The reason for the reference in this letter to the undesirability of J‑Corp Pty Ltd coming to know of the appellant's financial predicament has not been explored.
There was a meeting between the appellant and Mr Friedman at 4.30 pm on 11 September 1992, in the course of which Mr Friedman handed to the appellant the letter just referred to. During the discussion, the appellant advised Mr Friedman that he had instructed his bank, the Commonwealth Bank of Australia, not to issue a guarantee for the sum of $30,000, the subject of the Letter of Request and Indemnity dated 27 August 1992 referred to in the letter, the purpose of which was to protect the first respondent for its costs.
Subsequent to this meeting, Mr Friedman couriered another letter to the appellant in which he complained about the appellant's having instructed his bank not to issue the guarantee. Mr Friedman indicated that the appellant's conduct in proffering to him a copy of the Letter of Request and Indemnity in order to obtain his services and thereafter, without notification to him, providing the bank with a contrary instruction, was "reprehensible to say the least". The letter concluded:
"This letter serves as notification to you that you are required to provide to me at these offices a bank cheque in the sum of $30,000.00 by no later than 10.00 am Monday, 14 September 1992 failing which I will immediately institute proceedings against you for recovery of all moneys due to this firm without further notification."
It is to be observed that the Terms of Engagement Agreement relevantly gave the first respondent the right to cease to act for the appellant if any moneys requested by the firm in anticipation of its remuneration and disbursements were not paid to the firm within seven days of the same being requested, or if any interim or final bill were not met within seven days of its date.
By a letter also dated 11 September 1992, the appellant wrote to the first respondent, inter alia, as follows:
"As per your telephone call to me this morning 11 am, Friday 11th of September 1992, you stated to me that due to my unavailability of further financing of your services you would stop work immediately and no further act for me on my case against J/Corp.
I don't know if I need to have confirmation by you officially by letter, but I must employ another solicitor to act on my case, therefore I accept that you no longer act for me as from our telephone conversation. It would be appreciated if you made it officially by letter as there will be no misunderstanding. I also in return notify you that from the same time on 11‑9‑92 your services is terminated and you are no longer employed by me."
The appellant then went on to request the first respondent to forward to him all his bills from the commencement of his providing his services until their end, in order that they might be taxed.
It was common ground that the first respondent, and not the appellant, had terminated the first respondent's retainer.
Bills of costs were forwarded to the appellant; but they were not, in the appellant's view, sufficiently itemised. In a letter written by the appellant to the first respondent, dated 18 September 1992, the appellant wrote, inter alia, "Product of any kind derived from the hours accountable, must be shown and remain available with my file which is to be passed on to a new solicitor …. Also all documentation, papers, etc must be accounted for and not missing from my file when settlement is to be effected." This appears to be the first reference in the correspondence to the appellant's file of documents and papers, which either was, or was to become, the subject of the solicitors' lien. The material before us contains very few references to the first respondent's retention of the appellant's file pursuant to the lien. The letter also contains what appears to have been the first reference by the appellant to a quotation given by the first respondent to the appellant for its services, not including the trial, of a maximum sum of $25,000.
In a letter dated 29 September 1992, Mr Friedman indicated that, in the event that the appellant did not confirm to his firm within seven days of the date of the letter that Mr Martin's account had been paid, and that the accounts of Messrs Keen and Koivisto (who appear to have been witnesses) had also been paid, it would immediately commence legal action against him for payment of these accounts, notwithstanding the fact that its bills of costs, except the first bill, with respect to which it was then too late for the appellant to require that it be taxed, had been lodged for taxation.

Subsequently, the appellant once again claimed that the first respondent had quoted a maximum fee of $25,000 (excluding the costs of the trial itself) in relation to the appellant's case. The first respondent replied to this claim by letter dated 22 October 1992:
"We deny that at any stage either the writer [Mr Friedman] or anyone in this firm quoted a maximum of $25,000.00 in relation to your case. You will appreciate that the correspondence going back as far as 23 August 1992 clearly indicated that any advice given to you in relation to the matter of costs was at best an estimate only. This was explained to you at great length and you accepted it. Initially we sought a deposit of $25,000.00, but you will agree that you at all times were aware of the fact that the action would cost significantly more. You will also recall that by way of an accommodation to you, the requested deposit on account of costs of $25,000.00 was provided by you by way of bank guarantee. This was in order to assist you with interest which was being earned by you on your investment at the Commonwealth Bank."
It was further observed in this letter that "almost every moment of the time spent on your matter" was in the presence of the appellant himself.
The earlier correspondence from the first respondent in relation to costs was somewhat ambiguous. In a letter to the appellant dated 7 August 1992, Mr Friedman had referred to a bank guarantee for $25,000 in respect of a deposit for anticipated fees. The letter, however, concluded:
"I confirm receiving from you a cheque in the sum of $25,000.00 which I will hold in Trust and which I will not deposit unless you fail to make payment of any amounts claimed from you from time to time, up to the amount of $25,000.00.
I confirm that once my account has been paid up to a maximum of $25,000.00 and subject to payment of same, I will return to you the cheque for $25,000.00 held in Trust."
In his substituted statement of claim against the respondents, the appellant, in referring to the alleged "total maximum sum of $25,000, makes no reference to the maximum sum being exclusive of the costs of the trial itself, as was referred to by him in his earlier correspondence with the first respondent with respect to his liability for costs. The appellant claimed subsequently that the limit of $25,000 on the first respondent's costs was based upon an oral agreement between himself and Mr Friedman, although the appellant's contentions in this regard are far from clear. A reference to an oral agreement is to be found in the originating summons (CIV 2672 of 1992) which is discussed later.
By a letter dated 25 November 1992, Mr Friedman wrote to the appellant in relation to the latter's recent request for documentation pertaining to the action, inter alia, as follows:
"I confirm that during your discussion with me in regard to the matter of access to certain of your documentation held by this firm under our Solicitor's Lien, you confirmed to me that it was only after I had advised you that I would be unable to continue to act for you unless further funds were made available to me that you gave instructions to the Commonwealth Bank of Australia to refrain from issuing the Bank guarantee to this firm in respect of this firm's fees, which you had previously instructed the Bank to do.
I confirm that until that time you were entirely satisfied with the services that I had rendered to you in respect of your matter and that you had no objection whatever to the costs agreement in terms of which such services were rendered.
. . . . . . . . . . . . . . . . . . . . . . . . . .
In the circumstances, I would be grateful if you would immediately attend to payment of Mr Martin's fee in the amount of $20,000 as there is, as you will appreciate, no proper basis for you continuing to refuse to pay him.
Once this fee has been paid I will be only too happy to discuss further with you your requirements."
The initial complaint in writing concerning the pleadings appears in the appellant's letter to the first respondent dated 30 November 1992, following his letter to The Law Society requesting it to mediate in relation to the first respondent's bill of costs. There is no evidence that the complaint was conveyed to Mr Martin.
On 23 December 1992, the appellant, through his solicitors Messrs Kott Gunning, to whom he had now returned, filed an originating summons (CIV 2672 of 1992) seeking the following relief as against the first respondent:
"1.Claims that an oral agreement was entered into between the plaintiff and the defendant and it was a term of the oral agreement that the defendant's professional fees prior to trial in respect of District Court action No 4857 of 1989 would not exceed $25,000 plus disbursements; and
2.Claims that a written agreement was entered into on 5th August 1992 pursuant to which the plaintiff has been charged a total sum of $56,605.70 in respect of professional fees for the period 5th August 1992 to 7th September 1992 which included work completed before trial;
3.Seeks to have the sum for professional fees reduced from pre‑trial work to not more than $25,000 pursuant to Section 59 of the Legal Practitioners Act; and
4.Seeks to have the written agreement reviewed pursuant to Section 59 of the Legal Practitioners Act on the grounds that it is unreasonable. As to the fees charged for pre‑trial work on the basis that it fails to recognise the oral arrangement."
By a letter dated 18 January 1993, Messrs Kott Gunning wrote to the first respondent under the heading,
"Del Borrello v Friedman & Lurie
Supreme Court Action No 2672 of 1992"
In this letter, they advised that, in full and final settlement of the first respondent's professional fees "disputed in the above matter", the appellant offered the sum of $10,000. In the letter, reference was again made to an oral agreement between Mr Friedman and the appellant that the overall costs of the appellant for pre‑trial work in the action involving J‑Corp Pty Ltd would not exceed $25,000. The heading of the letter is that of the action in which the appellant was seeking to review the terms of the agreement of 5 August 1992. Nowhere in the correspondence which ensued is there any reference to a claim by the appellant against the first respondent for negligence in the conduct of the litigation with J‑Corp Pty Ltd.
By a "without prejudice" letter, dated 20 January 1993, under the heading,
"Friedman & Lurie ats Peter Del Borrello
Supreme Court No 2672 of 1992",
the first respondent wrote to Messrs Kott Gunning in the following terms:
"Without detracting from anything said in our open letter and without conceding for one moment the validity of your client's claim, we are, in an effort to resolve this matter without additional expense and inconvenience, prepared to settle our claim for costs on the following terms only:
1.We receive your trust cheque for $25,000 by noon Friday, 22 January 1993.
2.You prepare, file and serve Consent Order in terms of which your client's claim be dismissed with no order as to costs.
3.Your client irrevocably withdraws his request for taxation of our costs.
4.You (and not your client) arrange for collection of all your client's files and documents from these offices by 5.00 pm Friday, 22 January 1993."
In the open letter dated the same day, the first respondent had rejected the offer submitted by Messrs Kott Gunning in its letter dated 18 January 1993. It had also rejected the suggestion that the first respondent had arrived at any oral agreement (or any written agreement) in terms of which the firm's fees were to be capped at any particular sum. It was claimed that only the terms of the written costs agreement only were applicable to the retainer by the appellant of the first respondent, and it was pointed out that the first time the appellant had sought to raise the allegation regarding an inconsistent collateral oral agreement was as late as 18 September 1992.
Next, by a letter dated 21 January 1993, Messrs Kott Gunning wrote to the first respondent with a "second and final without prejudice offer in the sum of $15,000 payable in full and final settlement of your claim for professional fees". It appears that, following this letter, there was a meeting between Mr Friedman and a solicitor employed by Messrs Kott Gunning, Ms R Webber, on 26 January 1993 at which the settlement of the dispute regarding the first respondent's costs was discussed. The meeting proved to be inconclusive. In his affidavit, however, Mr Friedman deposed that, in discussions with Ms Webber, he had insisted that any settlement between the parties would need to compromise all matters arising out of the representation of the appellant by the first respondent, howsoever arising, save for the obligations in the settlement agreement which were to survive the agreement. That is not quite how the matter was expressed in the letter written by Mr Friedman on the following day.
By a letter dated 27 January 1993, the first respondent wrote to Messrs Kott Gunning advising that it was prepared to reduce its claim for outstanding costs and to settle the matter upon payment of the sum of $25,000. This was said to be its final proposal in the matter.
After further correspondence had been exchanged, on 5 February 1993, a settlement was finally reached in the following terms, which incorporate the various amendments:
1.The appellant pay to the first respondent the sum of $20,000 forthwith by either a bank cheque or, preferably, a trust cheque of Messrs Kott Gunning.
2.Upon the receipt of payment of the sum of $20,000 the first respondent will release from its possession all documentation being held in relation to the action brought by J‑Corp Pty Ltd against the appellant.
3.The appellant will pay to the first respondent an additional sum of $10,000 in full and final settlement of its claim against him for outstanding fees and disbursements in the event that he succeeds in recovering an amount of $10,000 or more in District Court Action No 4857 of 1989. In the event that the appellant does not succeed in obtaining payment in the amount of $10,000 or more he will have no further liability to the first respondent in respect of its costs, other than the amount of $20,000 referred to in para 1.
4.At the time of providing the sum of $20,000 Messrs Kott Gunning will also provide a duly signed consent order in terms of which the appellant consents to the dismissal of the originating summons in the Supreme Court action No 2672 of 1992, the consent providing that there be no order as to costs.
5.Messrs Kott Gunning will advise the Supreme Court that the taxation of the first respondent's bills of costs is not to be proceeded with.
6.The agreement is, subject to matters therein contained which must of necessity survive settlement, in full and final settlement of claims by or against the parties.
Paragraph 6 of the terms of settlement was inserted at the request of the first respondent in its letter to Messrs Kott Gunning dated 5 February 1993. On the same day, Messrs Kott Gunning wrote a letter of confirmation to the first respondent indicating that the foregoing terms were acceptable to their client. A further dispute between the appellant and the first respondent was to arise, however, in relation to the meaning of par 6. The correspondence between Messrs Kott Gunning and the first respondent had made no mention of any claim for alleged negligence on the part of the first respondent and it is to be noted that all the correspondence in relation to the settlement was headed with the names of the appellant and of the first respondent and cited the number of the action instituted by Messrs Kott Gunning on 23 December 1992, which was concerned only with the amount of the costs claimed by the first respondent.
The sum of $20,000 was duly paid to the first respondent pursuant to the settlement, and on 5 February 1993 a minute of consent orders was filed in CIV 2672 of 1992, consenting to the dismissal of the action, with no order being made as to costs. The application for the taxation of the first respondent's bills of costs was withdrawn. The settlement took place 10 days before the hearing was resumed in the District Court. There is nothing before us to indicate to what extent, if at all, the appellant had been disadvantaged by not having previously had available to him the papers held by the first respondent under his possessory lien.
The learned Master noted that, although most of the correspondence between the appellant and the first respondent dealt with matters of costs, some further complaints had been raised by the appellant, without, however, any claim being made for compensation. Thus, in a letter dated 30 November 1992 from the appellant to the first respondent, the former wrote: "At one stage in our telephone conversation you queried what part of your services I found wrong". He went on to cite a mistake in the book of pleadings in which it had been pleaded that delays were contributed to by the control of the appellant and not by the control of the builder. That was an obvious error, and there is no indication that it had any consequences so far as the outcome of the action was concerned.
The second complaint in the letter, commencing, "I am not absolutely certain about another serious mistake critical to case", appears to have related to the deletion at the trial of par 9 in the appellant's counterclaim, which had alleged that, by reason of the builder's continuing breaches, the appellant, by a notice dated 15 May 1989, had informed the builder of his election to terminate the five building contracts as at 15 June 1989 if it did not complete the works by that date and, the builder having taken no steps to complete the works between 15 May 1989 and 15 June 1989, accordingly, on 15 June 1989, the five building contracts duly terminated in accordance with the notice. There appears to be an unexplained discrepancy in that the appellant, in his letter, indicated that the second respondent had "made new pleading that I had intended and did terminate the contract with J/Corp on the ultimatum 15‑6‑1989". He went on to say that he later heard "or was told" that this pleading was not going to be "represented". He complained that this was done without his knowledge, consent or approval and he said that he condemned both respondents for "retreating the pleading". He added, however:
"I can understand that you and Ken Martin had only taken the case up in very short time and that W Martin [Mr W Martin QC, senior counsel for the builder] had objected to that pleading as being new to case. I cannot understand or respect that the pleading was retreated without my knowledge or consent just to let W Martin overrule the pleading and without discussing this matter with me."
Paragraph 9 of the counterclaim referring to the appellant's alleged termination of the building contracts had been in the pleadings prior to the respondents' involvement in this case. It was not "new" to the case.
Furthermore, in the appellant's letter to Mr Friedman, dated 7 December 1992, in relation to Mr Martin's advice to the appellant that, under Mr Friedman's definite instructions, "he had ruled out to the Judge the calling of any further witness for the defence, other than himself", the appellant asked Mr Friedman whether he had instructed Mr Martin to proceed in this way and whether he had instructed Mr Martin not to proceed with the claim that the appellant had terminated the contracts with J‑Corp Pty Ltd.
It is necessary now to return to what had been happening between the appellant and Mr Martin after the adjournment of the trial on 10 September 1992.
Mr Martin deposed that, on or about 14 September 1992, he had been telephoned by Mr Friedman, who had informed him that his firm's solicitor/client relationship with the appellant had been terminated, and that his firm was no longer to remain as solicitors on the record for the appellant due to a dispute in relation to its fees. This was three days after Mr Friedman had terminated the first respondent's retainer.
Mr Martin received a number of written communications directly from the appellant, to the effect that he was proposing to engage new solicitors and asking Mr Martin to hold himself available to act for him.
By a letter dated 11 September 1992, the appellant wrote to Mr Martin advising him that the first respondent was no longer acting for him. In that letter the appellant wrote, inter alia, "I would appreciate if you kept in communications as to where do we go from here and what must I do, apart from choosing a solicitor to act on the case. If you can recommend a reasonably good solicitor to me it would help me." There was no suggestion of any criticism of Mr Martin by the appellant; but there was a clear indication that the appellant recognised that he would have to retain another solicitor, and that Mr Martin was not expected by him to act on his own without an instructing solicitor.
Mr Martin replied to the appellant by a letter dated 15 September 1992, informing him that the rules of the Bar Association prevented him from communicating with the appellant otherwise than through an instructing solicitor. He suggested that the appellant should discuss the matter with Mr Friedman or another solicitor. At this stage, Mr Martin had no instructing solicitor, and he had not received payment of his fees.
The appellant wrote again to Mr Martin by a letter dated 1 October 1992, in which he stated, inter alia, "I am seeking a new solicitor and will notify you as soon as I engage one. I attended a pre‑trial conference on 30‑9‑92 and a new trial date [has] been set for three days on 15th, 16th and 17th of February 1993. Hoping that you can still act on this case after all accounts are sorted out."
By a letter dated 22 October 1992, Mr Martin wrote to the first respondent, noting that it was no longer acting for the appellant, but requesting that Mr Friedman forward the letter to the appellant as a matter of urgency. He said that Mr Friedman had made it plain to him that he was no longer retained for the completion of the trial and no other solicitor had approached him seeking to retain his services to act further on the appellant's behalf. Moreover, Mr Martin said, he had now been approached to accept another brief for the days set down for the completion of the trial, but that, before accepting this brief, he wished the appellant to be apprised of his position so that he had an opportunity, if he desired to do so, to take some urgent step by engaging a solicitor to redress the position immediately. He indicated that, if he did not hear from a solicitor acting on the appellant's behalf in relation to the matter by 30 October 1992, then he would accept the brief which had been offered. That letter was duly forwarded to the appellant on the same day.
There was no immediate response from the appellant. However, on 1 December 1992, he wrote to Mr Martin advising him, inter alia, that he was still in the process of "allocating" another solicitor. He indicated that it was essential to his case to call "about eight witnesses", including himself, Plunkett Homes and the appellant's wife. He made no complaints as to how the litigation had been handled by Mr Martin. He offered Mr Martin 50 per cent of his fee of $20,000 and indicated that he would make any overdue payment on his part "compensatable" by interest to Mr Martin. He apologised to Mr Martin for the "unexpected happenings", having expressed his belief that Mr Martin should not have suffered as a result of the costs dispute between the appellant and Mr Friedman.
Mr Martin replied to the appellant, by a letter dated 3 December 1992, noting that he had still not been contacted by any solicitor acting on the appellant's behalf seeking to retain his services at the resumed hearing of the trial in February 1993. He said he had pointed out to the appellant some time previously that he had been offered another brief which clashed with the time of the resumed trial and that, if he did not hear from a solicitor acting on the appellant's behalf within a reasonable time, then he would accept that brief. He had not heard from a solicitor acting on the appellant's behalf in the matter and he had therefore accepted the other brief. That being the case, he said, he would only be available if the solicitors who had retained his services over the period of the adjournment were prepared to release him to complete the resumed trial. That was, he said, a matter entirely for the other solicitors, but there was no basis even to request his release until the appellant had engaged another solicitor.

Mr Martin went on to say in his letter to the appellant that he was greatly troubled with the appellant's foreshadowing an intention to call further witnesses for the defence, in addition to himself, because, at the conclusion of the trial, it would seem that, while the appellant was present, some expert evidence had been led on his behalf, although the appellant had not yet given evidence himself. This was allowed as an indulgence by the trial Judge, who had adjourned the trial so that, when it did resume, he could hear the appellant's evidence-in-chief and cross-examination without interruption. The trial Judge had then sought Mr Martin's assurance that the appellant was the last "significant" witness for the defence and, on the instructions of the first respondent, he had given that assurance, reserving the position only if something dramatically unforeseen happened. On that basis, he said, he would be extremely concerned about accepting any further brief from a solicitor acting on the appellant's behalf where clear assurances given to the trial Judge, on instructions, were to be resiled from. Nothing further appears to have been done by the appellant to retain Mr Martin for the resumed hearing, or to discuss the position with him, so that the latter was not called upon to seek his release from the other brief. An application by the appellant in person on 29 February 1992 for an adjournment of the further hearing was rejected by the learned trial Judge. At the adjourned hearing, the appellant was represented by two other counsel, who were both members of the firm of Messrs Kott Gunning.
On 14 February 1994, Healy DCJ gave judgment for J‑Corp Pty Ltd for the sum of $49,446.11 and interest. His Honour dismissed the appellant's counterclaim. In his reasons, the learned trial Judge stated that he had formed an unfavourable impression of the appellant's credibility, and that, where his evidence differed from that of other witnesses, he preferred their version to that of the appellant. The appellant, acting in person, appealed against the decision. His appeal eventually was dismissed for want of prosecution.
On 4 August 1998, the appellant, acting in person, issued a writ against the respondents with the statement of claim indorsed on it. The claim for relief, which did not distinguish between the two respondents, was as follows:
"18.AND THE PLAINTIFF CLAIMS:
(A)The sum of 300,000.00 [sic] Damages for combined and/or alternatively:
i)Careless, deceitful, disorderly, adverse, prejudice, incompetent, non‑professional, negligent, and disgraceful conduct and representation of my case
ii)Prejudice, blackmailing, overcharging and withholding of file in detriment and prejudice to my case and the interest of Justice.
(B)Pursuant [sic] to section 32 of the Supreme Court Act interest on the said damages sum $300,000.00 at the rate 12% per annum as from 01.01.1993.
(C)Further loss of 3 properties and damages estimated of approx. $1,000,000.
(D)Costs
(D)Aggregated and exemplary damages."
The appellant subsequently prepared and filed a substituted statement of claim, which was adopted by the learned Master and by the parties for the purposes of the application for summary judgment as well as by this Court. Although it is a considerable improvement on the original "indorsement/statement of claim", it contains numerous deficiencies. One of the most serious of those deficiencies is the failure of the pleading always to distinguish between the alleged conduct of the first respondent and that of Mr Martin.
In the substituted statement of claim, the appellant claimed that, on 11 September 1992, the first respondent, in breach of his contract and/or retainer agreement and duty and obligations to the appellant ceased to act for the appellant in respect of the action. He then claimed that the first and second respondents, "in breach of the said contract and or retainer agreement and duty and obligations to the [appellant] failed to exercise all due care, skill and diligence in and about the defence and counterclaim of the [appellant's] case in the District Court Action and further … failed to exercise any and all due care, skill and diligence in or about the said District Court Action whilst representing the [appellant] which resulted in prejudice and injustice against the [appellant] in the said District Court Action". Particulars of the respondents' alleged breaches of duty were as follows:
(a)The first respondent ceased to represent the appellant without adequate or sufficient notice while the case was part heard without due care for the consequence and or the effect that his ceasing to act would have on the appellant's matters in the part heard District Court Action.
(b)The second respondent ceased to represent the appellant whilst the case was part heard without due care for the consequence and/or the effect that his ceasing to act would have on the appellant's matters in the part heard Action.
(c)During the course and the conduct of the action the respondents did not properly, adequately or skilfully plead and represent the appellant's lawful instructions and interests in the case.
(d)Further, without the appellant's knowledge and consent and contrary to the appellant's firm instructions, the respondents amended and deleted and omitted significant pleadings to the appellant's original pleadings in the action contrary to the interests of the appellant.
(e)Further, without the appellant's knowledge and consent and contrary to the appellant's firm instructions, the respondents deleted and omitted and failed to represent new admissions made to the appellant's pleadings which were a main fundamental base of proceeding to and representing the appellant's case as the alternative of seeking to adjourn the trial during the course of the part heard proceedings in the action, contrary to the interests of the appellant and or without consulting the appellant in respect of the omissions.
(f)The respondents failed to make necessary application and seek to adjourn the trial in sufficient time when they were aware that it was impracticable to be adequately ready to proceed to trial on the listed date of the trial of the action when not adequately prepared and ready for trial.
(g)Further, without the appellant's knowledge and consent and contrary to the appellant's firm instructions, the respondents failed to properly plead and represent at the action the correct facts in respect of the pleadings contained in the action, contrary to the case and interests of the appellant.
(h)Further, without the appellant's knowledge and consent and contrary to the appellant's firm instructions, the respondents omitted and/or withheld and/or ceased and failed to lead and represent in the action significant discovered evidence in support of the appellant's defence and counterclaim.
(i)Further, without the appellant's knowledge and consent and contrary to the appellant's firm instructions, the respondents ceased and failed to call relevant available witnesses and further declared and/or confirmed to the court that no further witnesses, other than the appellant, would be called to give evidence in support of the appellant's case, the respondents having been instructed to call all of those relevant and available witnesses.
The statement of claim, in addition, alleged that the first respondent, "in breach of the retainer agreement and or contract, charged the [appellant] far in excess of the quoted and agreed maximum price" of $25,000 payable by time to time progressive instalments at the rate of about $225.00 per hour up to the total maximum sum of $25,000. It alleged that the first respondent was in further breach of its duty in ceasing to represent, and abandoning, the appellant when he was not in a further financial position to meet the further security for costs demanded by the first respondent, and that the first respondent created a further detriment and prejudice to the appellant's part heard action by claiming a lien over the entire appellant's file after the appellant had already paid about twice the maximum agreed price and further refusing to release the files and documents in the action until about six days just before the resumption of the trial.
The respondents' applications for summary judgment under O 16 of the Rules of the Supreme Court came before the learned Master, who granted both applications. Having considered the documentary evidence, the learned Master concluded his reasons in connection with the first respondent's application:
"I consider that the agreement of 5 February 1993 is a complete answer to the [appellant's] claims in this action against the first [respondent]. That agreement not only settled the dispute over costs, but also in par 5 [of the amendments proposed by the first respondents and accepted by Messrs Kott Gunning on the appellant's behalf] settled all other complaints which the [appellant] now seeks to raise against the first [respondent]. I consider that agreement is a complete defence and that there is no question of fact or law that needs to be tried and that summary judgment should be entered for the first [respondent] against the [appellant]."
It should be noted that par 5 referred to in the Master's reasons is par 6 in the finally agreed terms of settlement as set out above.
In relation to Mr Martin's application for summary judgment, the learned Master held that he had a good defence for each claim in negligence brought against him.
The appellant has appealed against the Master's decisions granting summary judgment in favour of the respondents. The original notice of appeal was extremely verbose, containing 23 grounds, some of those grounds containing many paragraphs of particulars. Subsequently, however, following a directions hearing before a Judge of this Court, a greatly abbreviated statement of grounds of appeal was agreed between the parties. Those grounds were as follows:
"A.GROUNDS OF APPEAL AGAINST THE FIRST RESPONDENT
1The learned Master failed to give consideration or sufficient consideration to whether the Agreement of 5 February 1993 was arrived at under duress.
2The learned Master failed to give consideration or sufficient consideration to the fact that the Agreement of 5 February 1993 was arrived at in consequence of unconscionable behaviour on the part of the first respondent.
3The learned Master erred in concluding that the Agreement of 5 February 1993 covered only costs and not negligence; that is, the Agreement construed by reference to the document, alternatively construed by reference to the surrounding circumstances covered only costs and not negligence.
B.GROUNDS OF APPEAL AGAINST THE SECOND RESPONDENT
1The Master wrongly determined that the Principle of Barrister's immunity applied to the particular conduct of the second respondent and in particular to the preparation of a matter for trial.
2The Master wrongly determined that in so far as Barrister's Immunity did apply to the second respondent's conduct it was an absolute defence whereas before the court determines that the immunity applies it should have regard to the conduct of the Barrister and if the conduct is so gross the Immunity should not apply.
3The Master erred in determining that on the facts the second respondent was not negligent.
4The Master wrongly determined that the matter was one which should be determined by way of summary judgment under Order 16 of the Rules of the Supreme Court."
Ground A3 in terms reverses the learned Master's finding. His conclusion in relation to the agreement was as follows:
"I consider that the agreement of 5 February 1993 is a complete answer to the plaintiff's claims in this action against the first defendant. That agreement not only settled the dispute over costs but also in para 5, settled all other complaints which the plaintiff now seeks to raise again against the first defendant. I consider that agreement is a complete defence and that there is no question of fact or law that needs to be tried and that summary judgment should be entered for the first defendant against the plaintiff."
Each of the respondents filed a notice of contention pursuant to O 63 r 9(2) of the Rules of the Supreme Court. The first respondent's notice of contention was as follows:
"1.There is no arguable case that the agreement between the [appellant] and the first [respondent] made on or about 5 February 1993 is invalid by reason of
(a)duress
(b)unconscionable conduct by the first [respondent]
(c)any other conduct of the first [respondent].
2.There is no arguable case of negligence against the first [respondent] on the grounds that:
(a)the first [respondent] had discharged its duty of care by retaining and acting upon the advice of counsel; further and in the alternative
(b)the learned Master's reasons in support of his finding that there was no arguable case against the second [respondent] in connection with the District Court action apply equally to the first [respondent]."
The second respondent's notice of contention was as follows:
"1.There was no arguable case that any act or omission alleged that the second respondent caused the appellant (plaintiff) any loss or damage.
2.There was no issue to be tried on the allegation that the second respondent was negligent in that he "ceased to represent the plaintiff whilst the case was part heard" as:
(a)the second respondent was retained as counsel by the first respondent (first defendant);
(b)the second respondent's engagement as counsel was terminated by the first respondent on or about 14 September 1992.
3.There was no issue to be tried on the allegation that the second respondent was negligent in amending the appellant's statement of claim to delete the plea that the appellant had terminated the building contracts pursuant to a notice dated 15 May 1989 as the appellant had not in fact or in law terminated the building contracts by [its] notice or otherwise.
4.There was no issue to be tried on the allegation that the second respondent was negligent in pleading the dates of occupation of the units as the learned trial Judge had found that the units were in fact practically completed as at the date on which J-Corp issued notices of practical completion (being 28 June 1989) and it was that date which was relevant to determining J-Corp's entitlement to payment and the appellant's counter claim for damages for inexcusable delay.
5.There was no issue to be tried on the allegation that the second respondent was negligent in not pleading that cl 19(iv) of the building contracts made between the appellant and J-Corp Pty Ltd with (sic) a penalty as, in law, the clause did not constitute a penalty."
The appeal from the summary judgment granted in favour of the first respondent against the appellant, having regard to the terms of the agreed minute, related entirely to the "Terms of Engagement Agreement". The appellant raised issues as to whether the agreement was voidable, either by reason of duress, or by reason of unconscionable conduct, on the part of the first respondent.
In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129 ‑ 130, Barwick CJ discussed the principles applicable to a court's summary power to terminate an action. He said:
"At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 where he says, at 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings [at 84], in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, at 99, Mason, Murphy, Wilson, Deane and Dawson JJ said:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: see Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5; Jones v Stone [1894] AC 122; Jacobs v Booth's Distillery Co (1901) 85 LT 262."
In Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, at 256, Kirby J was concerned with an application by the Commonwealth for summary relief. His approach, which his Honour described as not in doubt, was as follows:
"1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 [of the High Court Rules], or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, the court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18, applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit." [footnotes omitted]
And see also Webster v Lampard (1993) 177 CLR 598 at 608 per Mason CJ, Deane and Dawson JJ and Wenlock v Moloney [1965] 1 WLR 1238 at 1244, per Danckwerts LJ.

Having regard to these authorities, I turn to the appeal challenging the dismissal of the appellant's claim against the first respondent. As previously noted, the agreement of 5 February 1993 was held by the learned Master to have compromised all the complaints made by the appellant against the first respondent. The critical term in the agreement was introduced at the very end of the negotiations. Up to that time, the negotiations had related only to the amount of costs to be paid to the first respondent. The heading of all correspondence on the subject, from the beginning to the end of the negotiations, identified the subject of the agreement as the proceedings relating to those costs. There were competing claims as to the costs, the claim of the appellant being that there had been an agreed limit quoted by Mr Friedman on the costs payable to the first respondent, and the first respondent's claim being that it was entitled to be paid strictly in accordance with the written agreement, which imposed no limit on the amount of the costs. If there had been an agreed limit, a question must arise as to whether the limit of $25,000 only applied in respect of the first respondent's acting for the appellant up to the time of trial. Notwithstanding the ambiguity in the first respondent's letter of 7 August 1992, the appellant's case with respect to the alleged limit does not appear to be strong; but, in the end, if the action proceeds, the outcome will depend upon the credibility of the appellant with respect to his alleged discussion with Mr Friedman.
The question remains, however, as to the meaning of the words in par 6 of the terms of settlement previously set out as to the agreement being "in full and final settlement of claims by or against the parties" and whether those words extend to all claims, whether or not they were existing claims or future claims, as the Master held. At the time of the settlement, on the material before us, no substantial claim, other than in respect of the alleged pecuniary limit for costs had been made against the first respondent.
In Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, Lord Hoffman made what he described as some general remarks about the principles by which contractual documents are nowadays construed. At 912 ‑ 913, His Lordship said:
"I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of 'legal' interpretation has been discarded. The principles may be summarised as follows.
(1)Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2)The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3)The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4)The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749.
(5)The 'rule' that words should be given their 'natural and ordinary meaning' reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in the formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201: 'if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense'."
The immediate questions which arise are: What was the background to the settlement? Was there any evidence of any claims for negligence made by the appellant against the first respondent prior to settlement? If there was, was it the subject of any discussion between the solicitors? To answer these and other questions, an examination of the admissible background will be required, an examination which cannot be undertaken by this Court.
The learned Master, having reached the conclusion that the agreement of 5 January 1993 was a complete answer to the appellant's claims against the first respondent, did not need to go on to consider the question of whether the agreement was voidable by reason of either duress or unconscionable conduct on the part of the first respondent.
The general rule is that once a solicitor has accepted instructions to act in a contentious matter, where the retainer amounts to an entire contract, that is to say, a contract to complete the work for which the retainer was given, and on which the client cannot receive the benefit of the consideration until the contract is completed, the solicitor cannot withdraw from the client's case except for good cause and on reasonable notice to the client: see Underwood, Son and Piper v Lewis [1894] 2 QB 306, per Lord Esher MR at 309 ‑ 310. Accordingly, in the absence of agreement to the contrary, in the case of a retainer to conduct proceedings for damages for breach of contract, the client cannot secure any benefit until judgment has been obtained or the claim has been settled.
This may, however, be overstating the position for, as Goff LJ said in Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614, at 616:
"The appellants acted as solicitors for all the defendants, and it was an express term of the retainer that the defendants would make periodical payments on account of costs. I do not think it would make much difference if that were not so, as in my view a solicitor cannot be required to go on with long and complicated litigation, without being put in funds, unless, of course, he has expressly agreed so to do."
As is suggested in Cordery, Law Relating to Solicitors, 8th ed (1988) at 71, the general rule appears to have originated in the common law courts when the cost of litigation was low, and actions were speedily disposed of: see Harris v Osbourn (1834) 2 Cr & M 629; 149 ER 912, per Baron Parke at 632; 913. Where, however, the solicitor and the client have agreed on the solicitor's being remunerated progressively for the work performed, and the client has failed to meet its obligations in this respect, the solicitor will be entitled to terminate the retainer and to recover any moneys outstanding.
In the present case, there was an express agreement for the progressive payment of the first respondent's costs. Whether the first respondent was entitled to terminate the retainer before the period of seven days had elapsed, in accordance with the agreement, was not argued before us, although one of the appellant's continuing complaints was that the first respondent had ceased to act without adequate or sufficient notice. On the other hand, the retainer of the first respondent was accepted as having been terminated on 11 September 1992 while the hearing was not resumed until some five months later. This is to be contrasted with the one month available to the respondents when they assumed responsibility for the appellant's defence and counterclaim.
In this case, the first respondent asserted a possessory lien over the appellant's papers until the settlement regarding costs had been effected. However, it was common ground that it was the solicitor who had determined the retainer. In this situation, a special rule has developed. As explained by Templeman LJ in Gamlen Chemical Co (UK) Ltd v Rochem Ltd, at 624:
"The solicitor himself may determine his retainer during an action for reasonable cause, such as the failure of the client to keep the solicitor in funds to meet his costs and disbursements; but in that case the solicitor's possessory lien, ie his right to retain the client's papers of any intrinsic value or not, is subject to the practice of the court which, in order to save the client's litigation from catastrophe, orders the solicitor to hand over the client's papers to the client's new solicitors, provided the new solicitors undertake to preserve the original solicitor's lien and to return the papers to the original solicitor, for what they are worth, after the end of the litigation.
This practice was settled many years ago, and as Goff LJ has shown from the citation which he gave of Heslop v Metcalfe [(1837) 3 My & C 183; 40 ER 894, at 188; 896], there are convincing reasons why the practice should be followed and it has been followed, at least in the cases Goff LJ has cited, Webster v Le Hunt (1861) 9 WR 804; Robins v Goldingham (1872) LR 13 Eq 440, and is to be found also in the argument of counsel in Hughes v Hughes [1958] P 224.
Where the solicitor has himself discharged his retainer, the court then will normally make a mandatory order obliging the original solicitor to hand over the client's papers to the new solicitor against an undertaking by the new solicitor to preserve the lien of the original solicitor."
Templeman LJ then went on to emphasise that, even in these circumstances, an automatic mandatory order obliging the original solicitor to hand over the papers to the new solicitor is inconsistent with the inherent, albeit judicial, discretion of the court to grant or withhold a remedy which is equitable in character, and he indicated that it may therefore be that, in exceptional cases, the court might impose terms where justice so required as, for example, where the papers would be valueless after the litigation is ended.
A most important feature of this case, which renders the appellant's task of avoiding the contract much more difficult, is that, at the time the agreement of 5 February 1993 was being negotiated, the appellant was represented by Messrs Kott Gunning, who, on behalf of the appellant, had issued the originating summons previously referred to in relation to the first respondent's costs. No suggestion has been made that any obligation was imposed upon the first respondent to offer the papers to Messrs Kott Gunning, although, on the face of the matter, had an application been made to the court, it was highly likely that it would have been ordered, as a matter of justice, that the first respondent hand over the papers to Messrs Kott Gunning against their undertaking to preserve the lien of the first respondent.
McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, at 45 – 46 discussed the principles applicable to a claim to set aside an agreement on the ground of duress:
"A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
In their dissenting advice in Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104, Lord Wilberforce and Lord Simon of Glaisdale pointed out (at 634; 121):
'… in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as illegitimate. Thus, out of the various means by which consent may be obtained - advice, persuasion, influence, inducement, representation, commercial pressure - the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion.'
In Pao On v Lau Yiu Long [1980] AC 614, the Judicial Committee accepted (at 635) that the observations of Lord Wilberforce and Lord Simon in Barton v Armstrong were consistent with the majority judgment in that case and represented the law relating to duress.
It is unnecessary, however, for the victim to prove that the illegitimate pressure was the sole reason for him entering into the contract. It is sufficient that the illegitimate pressure was one of the reasons for the person entering into the agreement. Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement: Barton v Armstrong (at 633; 120) per Lord Cross."
Standing alone, the assertion of a solicitor's possessory lien would be neither wrongful nor illegitimate. It is necessary, however, to consider the general background, commencing with the somewhat enigmatic reference by Mr Friedman in his letter dated 11 September 1992 to the appellant with respect to the consequences of J‑Corp Pty Ltd becoming aware of the appellant's financial predicament. A claim was also made in the appellant's letter to the first respondent, dated 30 November 1992, that Mr Friedman had continually kept threatening him that the first respondent would drop the case at a critical stage, and after the first respondent had already been paid what the appellant claimed was the maximum amount of $25,000.
Although, on the materials presently before us, in my view, the appellant's claim in respect of duress may fairly be described as being weak, it does not appear to me to come into the category of being frivolous or vexatious and, in my opinion, the appellant should not be prevented from having this issue determined at a trial.
It is well recognised that the notion of unconscionability is difficult to define. Each case depends very much upon its own facts. In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, Mason J, at 462, indicated that "whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created" the court will set aside the transaction. As with the defence of duress, there is, in my view, just sufficient to justify the defence of unconscionability being determined at a trial.
The first respondent's notice of contention claims that there is no arguable case of negligence against it on the ground that it had discharged its duty of care by retaining and acting upon the advice of counsel. It is noted that the first respondent's affidavit makes no reference to its having so acted. Furthermore, the mere fact of the first respondent's having retained and acted upon the advice of counsel may, in some circumstances, be insufficient to discharge its responsibility - see the judgment of Kirby J in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209, at 240 [142] infra.
It was also contended for the first respondent that the learned Master's reasons in support of his finding that there was no arguable case against Mr Martin in connection with the action apply equally to the first respondent. This may be accepted, except to the extent that Mr Martin is able to rely upon the immunity of an advocate. It should be noted that there is no evidence before us, and there is very little indication in the pleadings as to the respective distinctive roles played by Mr Friedman as instructing solicitor and Mr Martin as counsel during the getting up of the case and during the first four days of the trial. This has been a source of some considerable difficulty in evaluating the appellant's case.
Mr Friedman did not seek to challenge on affidavit the facts alleged in the appellant's statement of claim, and in the affidavits of the appellant sworn on 4 August 1998 and on 25 March 1999, as the basis for the appellant's claims that the first respondent was negligent, and of course there was little point in doing so in an application for summary judgment. The first respondent's defence, as set out in Mr Friedman's affidavit sworn on 2 March 1999, was simply that the agreement arrived at on 5 February 1993 settled not only the issue of costs, but also any claims which the appellant might have had against the first respondent with respect to its participation in the proceedings in the District Court.
The language of the appellant in his affidavit of 25 March 1999 in reply to Mr Friedman's affidavit was vituperative, rather than enlightening, regarding the nature of his claim against the first respondent. At that time, he was unrepresented. The appellant did, however, offer in his affidavit two "examples of representation avoided and deleted". The first related to the appellant's contention that cl 18 of the building contracts required that the works be completed within 24 weeks, but that practical completion was not achieved in accordance with the contracts as a result of the builder's failure to allocate the necessary resources at its disposal to the appellant's contracts. The claim was that the works should have been completed by the end of December 1998. That claim was based on an erroneous construction of cl 18 of the building contracts. As already indicated, the amendments to the defence and counterclaim in the District Court action made shortly before the trial were drafted by Mr Martin. A minute of the amendments proposed by Mr Martin was forwarded to Mr Friedman in order that the solicitors for J‑Corp Pty Ltd should be made aware of what amendments were being sought on behalf of the appellant. In applying for leave to amend the pleadings and to provide resumes of the expert evidence "as to the issues of practical completion and the validity of the excuses put up by J‑Corp Pty Ltd for late completion", notwithstanding that the parties had been required to exchange the resumes of experts some three months prior to the first respondent being retained, a request was made, in the alternative, that the nominated trial dates should be vacated. Leave to amend the appellant's pleadings was granted, and the adjournment of the trial was not pursued. The appellant's claim for delay on the part of the builder remained, although it was ultimately successful.

I accept that the conduct of counsel acting in bad faith or dishonestly will not attract the immunity attaching to counsel. There is no suggestion in the present case that Mr Martin acted otherwise than in good faith and honestly. The claim made against him in par 10 of the statement of claim is simply that he, together with the first respondent, "failed to exercise all due care, skill and diligence in and about the defence and counterclaim … and further … failed to exercise any and all due care, skill and diligence in or about the said District Court Action".
In my opinion, the appeal against the learned Master's decision with respect to Mr Martin should be dismissed.
WALLWORK J: On 13 May 1999, a learned Master of this Court dismissed an action by the appellant against the first and second respondents after he had held that the respondents' applications for summary judgment should succeed. The appellant now appeals against those findings.

Background

For the purpose of considering the applications by the respondents for summary judgment, the learned Master had taken the plaintiff's claim to be the one in the minute of a substituted/amended statement of claim dated 26 January 1999. In that statement of claim the appellant had pleaded that he had engaged the first respondent, a firm of solicitors, to represent him in a District Court action in which a building company had sued him for moneys allegedly owing under a contract. The first respondent had acted as the solicitors for the appellant between 5 August and 11 September 1992 and had engaged the second respondent, who is a barrister, to represent the appellant.
The relevant action was heard in the District Court over four days between 7 and 10 September 1992. It had then been adjourned for a further hearing which was held between 15 and 17 February 1993. The hearing of the action was concluded on 23 March 1993.
The first respondent had withdrawn from acting as the appellant's solicitors in the action after the appellant had refused to pay more moneys which they had requested from him on 11 September 1992. At the resumed hearing in February 1993, different solicitors had acted for the appellant.
In accord with the then operative rules of the Western Australian Bar Association, and after the first respondent had refused to act further for the appellant after September 1992, the second respondent had taken the view that he had required an instructing solicitor to brief him for the resumption of the hearing in February 1993. When he was not instructed in the matter as he had requested, the second respondent did not represent the appellant at the resumed hearings in February or March 1993.
The building company succeeded with its claim against the appellant and his counterclaim was dismissed. The appellant then appealed to the Full Court. He prepared his own notice of appeal. His appeal was later dismissed for lack of prosecution.
The appellant then commenced the relevant action against both the first and the second respondents, claiming that they had failed in their duty to exercise professional care, skill and diligence in connection with his affairs. He claimed that on 11 September 1992, the first respondent had breached its contract with him and its duties to him, when it had ceased to act for him in the District Court action. He claimed that both

the respondents had breached their agreements with him and that they had failed in their duties and obligations towards him, and that this had caused him damage.

The appellant pleaded against the first respondent that it had wrongly ceased to represent him whilst his case was part‑heard, without giving him adequate or sufficient notice and without due care for the consequences arising from that decision. The appellant claimed that the second respondent had also failed in his duty by ceasing to continue to represent him in the action.
It was further claimed by the appellant that during the course of the action and before it was adjourned on the first occasion, both the first and second respondents had not acted with the required care and skill in representing him in the action; that they had amended and deleted significant parts of his claim in a manner which was contrary to his interests. He also claimed that the trial had commenced before his case had been adequately prepared and that the respondents had failed to properly plead and present the correct facts during the course of the action; further that they had acted in certain respects without his consent. He alleged that the respondents had failed to call relevant available witnesses without his consent.
The appellant also claimed that the first respondent had charged him far in excess of the quoted and agreed maximum costs for representing him in the action. He claimed that in a letter dated 23 August 1992, the first respondent had set out the estimated costs of the action and amongst other things, the first respondent had said:
"Unless some miracle occurs, the matter will proceed to trial and you will be obliged to fund the action to a sum at least equivalent to the abovementioned estimate of $40,000. I do not believe that the costs will blow out significantly more than the estimated sum, but it is possible that this sum may increase to, say, $45,000."
The appellant further claimed that the first respondent had not advised him that his costs were likely to exceed the building company's claim against him, which was for $54,599. He claimed that overall the first respondent had sought payment from him of approximately $95,000.
The appellant claimed that the first respondent had breached its duty in ceasing to represent him when he had not been in a financial position to meet the further costs which had been demanded of him. Further, that the first respondent had caused detriment and prejudice to him after that time, by claiming a lien over the entire file at a stage half‑way through the action without regard to his interests, whilst knowing full well that by retaining and withholding the files and the documents, the appellant would be seriously disadvantaged in respect of the on‑going proceedings in the District Court.
There were other claims by the appellant against the first and second respondents, but it is not necessary at this time to go into the details of those claims.

Grounds for Master's decision

In his reasons for judgment, the learned Master, having set out the relevant parts of the statement of claim which I have referred to above, discussed an agreement which had been made between the appellant and the first respondent on 5 February 1993, which was in the terms of a letter from the first respondent dated 5 February 1993.
The letter from the first respondent had followed a letter of 4 February 1993 from the appellant's new solicitors in which they had made the following offer:
"1.Mr Del Borrello pay you the sum of $20,000 forthwith.
2.Upon the receipt by you of payment of the sum of $20,000 as referred to in sub‑paragraph 1 above, you will release from your possession all documentation you are holding in relation to District Court action No 4857 of 1989.
3.In the event that Mr Del Borrello is successful in the pursuit of his defence and counterclaim in District Court action No 4857 of 1989, Mr Del Borrello will pay to you the further sum of $10,000 in full and final settlement of any liability he may have to you in respect of fees for your professional services. In the event that Mr Del Borrello is unsuccessful, you will not receive any amount from Mr Del Borrello in respect of any liability he may have towards your professional fees other than the amount of $20,000 referred to in sub‑paragraph 1 above."
The offer by the appellant on 4 February 1993 had followed his filing an originating summons against the first respondent in connection with the costs which the first respondent was claiming from him. At that stage he had claimed that pursuant to a written agreement, the first respondent was purporting to charge him $56,605.70 in respect of professional fees for the period 5 August 1992 to 7 September 1992 which included work completed before trial. The appellant had sought to have that written agreement reviewed pursuant to s 59 of the Legal Practitioners Act on the grounds that it was unreasonable and had failed to recognise an oral arrangement between the parties.
In answer to the letter of 4 February 1993 from the appellant's new solicitors, the first respondent's solicitors had made a counter‑offer concerning the sum to be paid in full satisfaction of the costs claim which counter offer included a cl 5 as follows:
"The agreement is, subject to matters therein contained which must of necessity survive settlement, in full and final settlement of claims by or against the parties."
That offer was accepted by the appellant's new solicitors. The costs proceedings in the Supreme Court which had been commenced by the appellant were then dismissed by consent.
The learned Master found that the cl 5 mentioned above, and the agreement between the appellant and the first respondent, was a complete answer to the appellant's claims in his action against the first respondent. He found that the agreement of 5 February 1993 not only settled the dispute over costs:
"… but also in para 5 settles all other complaints which the plaintiff now seeks to raise against the first defendant. I consider that agreement is a complete defence and that there is no question of fact or law that needs to be tried and that summary judgment should be entered for the first defendant against the plaintiff."
The learned Master had come to that conclusion having taken into account a letter from the appellant dated 30 November 1992 in which he had answered a query from the first respondent as to "What part of your services I found wrong." The first appellant had also written a further letter to the first respondent dated 7 December 1992 in which he had raised other matters concerning the amendment of pleadings by the second respondent and his failure to call some witnesses.

Grounds of appeal

The grounds of appeal which had been settled by a Judge of this Court when the appellant was acting for himself, state that the learned Master failed to give sufficient consideration to whether an agreement of 5 February 1993 which had been reached between the appellant and the first respondent, had been arrived at under duress or as a result of unconscionable behaviour on the part of the first respondent. The third ground of appeal is that:
"The learned Master erred in concluding that the agreement of 5 February 1993 covered only costs and not negligence; that is, the agreement constituted by reference to the document, alternatively construed by reference to the surrounding circumstances, covered only costs and not negligence."
The grounds of appeal against the second respondent are as follows:
1.The Master wrongly determined that the principle of barristers' immunity applied to the particular conduct of the second respondent and in particular to the preparation of a matter for trial.
2.The Master wrongly determined that insofar as barristers' immunity did apply to the second respondent's conduct it was an absolute defence whereas before the Court determines that the immunity applies it should have regard to the conduct of the barrister and if the conduct is so gross the immunity should not apply.
3.The Master erred in determining that on the facts the second respondent was not negligent.
4.The Master wrongly determined that the matter was one which should be determined by way of summary judgment under O 16 of the Rules of the Supreme Court.
It can be seen that the grounds of appeal against the second respondent raise matters which could involve the conduct of the first respondent, which conduct is not covered by the grounds of appeal against the first respondent.

The Appeal

During the hearing of this appeal, counsel for the appellant said that his client claimed that his pleadings in the District Court action had been amended by the respondents without proper instructions or authorisation from him. Further, that when the hearing had resumed in February 1993, he had not been able to remedy the situation which had thereby been created.
The appellant claimed that due to the amendments and to his general situation, he had been unable to lead evidence at the trial as to why there had been delays and misrepresentation by the building company. He said that that evidence had always been available. He claimed that there had been evidence available and ready to be called to the effect that there had been no shortage of labour and materials as had been claimed by the plaintiff building company in its action against him, and that what had happened concerning the relevant building contract was that the plaintiff company had given priority to other work when it should not have done so. Evidence as to that situation had been available and had not been called at the trial.
A significant assertion on behalf of the appellant before this Court was that important issues regarding the right of solicitors and counsel to withdraw half way through a trial had not been allowed to be ventilated at a trial.
The appellant claimed that there were also issues regarding the nature of the contract between the appellant and the respondents and the sum of moneys allegedly owing by him, which issues, he claimed, had not been allowed to be tried.
It was submitted for the appellant that the first respondent had wrongly ceased to act for the appellant after the appellant had paid a large sum of money in costs. It was submitted that the second respondent should have continued to act for the appellant in any event. That it had not been because the second respondent had not been paid that the second respondent had not continued to act.
It was submitted that the first respondent had been paid the sum of $48,000 by the appellant and that in addition to that sum, there had been a further sum of $7800 paid on account of counsel fees.
It was submitted that the whole disruptive situation had been precipitated by the first respondent which had been paid more than the maximum of $45,000 it had referred to in the abovementioned letter and which $45,000 had included an estimate for counsel's fees.
It was claimed that the appellant had not terminated the solicitors' or the counsel's retainers and that they had both withdrawn from the part‑heard action and had thereby breached their duties of care to the appellant. It was submitted that even if the solicitors had properly withdrawn, there had been an overriding duty on the second respondent to continue to represent the appellant in all the circumstances.
It was submitted that there were significant issues arising in this case which had not been satisfactorily ventilated and that summary judgment should not have been given when the facts had not been clearly established.
It was submitted that the learned Master had relied to a large extent upon facts which had been found by the learned trial Judge and that the learned trial Judge had not taken into account matters which the appellant had always wished to raise. He had also not taken into account that the appellant's solicitors and counsel had withdrawn half‑way through the action.
It was submitted for the appellant that this case raised the question of whether a barrister could properly rely on the rules of the Western Australian Bar Association, which rules at that time had precluded a barrister from dealing with the client direct. It was further submitted that at the February 1993 hearing, only the appellant had been able to give evidence and not the witnesses who had been proofed to give evidence.
Further, it was submitted that the second respondent had not allowed the appellant sufficient time to make other arrangements with other solicitors.
Essentially it was submitted that the matters raised in this case should not have been dealt with summarily when the underlying facts had not been properly established. The appellant should have been allowed to have his day in court.
In my view the learned Master erred in finding that the agreement of 5 February 1993 was a complete answer to the appellant's claims in his action against the first respondent. That action was based on broader matters than had been mentioned in the correspondence prior to 5 February 1993. The learned Master did not take into account the circumstances under which that agreement was reached, which in the grounds of appeal were said to involve duress and unconscionable behaviour on the part of the first respondent.
Although it was argued for the first respondent on the hearing of the appeal that the appellant's new solicitors could have obtained access to the relevant file and papers without making the payment of the moneys which were said to be owing, there were matters concerning the termination of the agreement between the appellant and the first respondent which have been referred to above, which the appellant should have been allowed to argue if he wished to do so.
In my view the appellant's claim against the first respondent was not so obviously untenable that it could not possibly succeed. It could be argued that cl 5 of the letter from the first respondent was not sufficient to prevent the appellant raising the matters in an action against the first respondent which he wished to pursue arising from the way in which the first respondent had refused to continue with the part‑heard action. As the learned Master said:
"A case must be very clear indeed to justify the summary intervention of the court to prevent the plaintiff submitting his case for trial in the ordinary way, and once it appears that there is a real question, whether of fact or law to be decided, and that the rights of the parties depend upon it, it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. The power given by the rule to enter judgment for the defendant makes express provision for what is, in any event, the court's inherent jurisdiction to protect its process from abuse by summarily disposing of an action as frivolous or vexatious in point of law if it is so obviously untenable that it cannot possibly succeed: Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99, and the law should be astute not to risk stifling the development of the law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373."
In deciding the appellant's claim against the second respondent, the learned Master discussed a barrister's immunity from suit and the allegations against the second respondent concerning the amendment to the pleadings and the calling of available witnesses. The learned Master dealt with the fact that the learned trial Judge had made certain rulings in connection with the matter. The learned Master also made comments on the failure of the appellant to call a witness, Mr Leahy, in February 1993. He found that that responsibility had not fallen on the second respondent. That question might depend on whether the second respondent had any obligations arising from the resumed hearing in February and March 1993.
The learned Master also discussed what effect any amendments would have had on the appellant's case and the learned trial Judge's findings, including the finding that the builder's failure to complete the works on time was excused by factors beyond the builder's control. The Master also discussed the appellant's claim under the Trade Practices Act and other amendments which had been made to the pleadings.

The Master concluded that the second respondent had a good defence to the claims for negligence based on the alleged amendments to the pleadings. He decided matters arising in that connection by reference to the learned trial Judge's findings.
The Master then discussed the advice from the second respondent to the appellant, that the rules of the Western Australian Bar Association prevented him from communicating with the appellant other than through an instructing solicitor; also the correspondence in that regard from the appellant to the second respondent including a letter of 1 December 1992, when the appellant had sent two cheques to the second respondent which the second respondent had said he could not accept, as the fees were due to him by the first respondent.
The learned Master found that there had been five months between the end of the first hearing on 10 September 1992 and the resumed hearing on 15 February 1993; that there had been adequate time for the appellant to obtain another solicitor to re‑engage the second respondent as counsel for the adjourned hearing. The Master came to the conclusion that he did not consider that there was any fact or issue which needed to be tried concerning the difficulties between the appellant and the second respondent, once the first respondent had withdrawn as solicitor.
The learned Master referred to reasons for the decision in Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373 to the effect that a court should be astute not to risk stifling the development of the law by summarily disposing of actions in respect of which there is a

reasonable possibility that it will be found, in the development of the law still embryonic, that a cause of action does lie.

In my opinion the position of a person practising as an independent barrister in this State in the circumstances which arose in this case, is not clear. It could reasonably be argued that a barrister in the situation which arose here, could be under an obligation to continue to act as counsel, particularly when the only witnesses remaining were the appellant and perhaps one or two other witnesses, who allegedly had been proofed in advance by the first respondent. A question also arises as to whether a barrister in a case such as this could have some obligation to assist the appellant to some degree to obtain the services of another solicitor who is prepared to act.
The question of the status of a person practising independently as a barrister in Western Australia was raised in the matter of Shand & Ors; SCt of WA; No 1130 of 1995. It was suggested in that case that it could be that there is no such thing as a barrister in the English sense in Western Australia. Subsequently that action was settled and there were no written reasons delivered.
Substantial questions concerning the relationship between a lay client and an independent barrister remain to be decided in Western Australia.
A question could arise in this case as to the retainer agreement which was made between the first respondent and the appellant and whether it had any bearing on the agreement between the appellant and the second respondent.
In addition to the above questions there is an underlying problem in this case. That is that during some of the relevant time in this matter, the appellant was acting on his own behalf. That raises questions which may require a hearing to resolve.
In all the circumstances and with respect, it is my view that the learned Master erred in upholding the two applications for summary judgment. In my opinion there were significant questions which had been raised by the appellant and it could not be said that there were no real questions to be tried between the appellant and the two respondents. On the authority of Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 the appeal concerning both respondents should be allowed.
MURRAY J: The issues raised by this appeal have caused me, as they have for the other members of the Court, much anxious consideration. In

the end, however, I have been greatly assisted by having access to draft reasons for decision prepared by Kennedy J and Wallwork J. The question of course is the correctness of the decision of the learned Master in granting each respondent summary judgment against the appellant and in making an order dismissing the appellant's action against both of them.

I respectfully agree with Kennedy and Wallwork JJ that the learned Master erred in the conclusion to which he came with respect to the first respondent. There is nothing I could usefully add to their Honour's reasons in that regard.
As to the second respondent, it is of course the case that in relation to the question of the immunity from suit of a person who acts as a barrister or advocate, the present state of the law for this Court is represented by the decision of the High Court in Giannarelli v Wraith (1988) 165 CLR 543. The High Court did not take the opportunity, if such it was, presented in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 to reconsider the application of the principle of immunity from suit in relation to legal practitioners acting as advocates, although enough was said by a number of members of that Court to lead one to think that in an appropriate case the High Court would be amenable to reconsider the doctrine and perhaps even inclined to move to its abandonment, leaving the question of the liability of practitioners acting as advocates to be left to the law of negligence and breach of fiduciary duty and the policy considerations and particular circumstances of advocates with respect to the preparation for and work done in court. It is to be noted that the House of Lords took such a course in the recent decision of Arthur J S Hall & Co v Simons [2000] 3 WLR 543. Nonetheless, as Kennedy J has noted, until such a development in the law of this country should occur, the law is as stated in Giannarelli v Wraith.
One appreciates the force of the observation that in an area of apparently developing law, which this may be, even more care than usual should be taken to ensure that litigation is not stifled upon an application for summary judgment. But that cautionary admonition would not, in my opinion, enable the Court to deal with such an application upon the basis that a binding decision of the High Court might, at some future time, in some way be set aside.
Nonetheless, although I respectfully agree with Kennedy J that the second respondent has immunity from suit in respect of the complaints of the appellant about his involvement in the litigation, I also think it is appropriate to examine the merits of the allegations made against the second respondent in the context of the general proposition that the power to award summary judgment is one which should be exercised with great care, only if it is clear that there is no real question to be tried, only in a case where it seems on the material before the Court that the action is doomed to failure: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
The way in which the appellant's case against the second respondent is framed has been discussed in detail by Kennedy J. Like his Honour, I think there is no arguable merit in the claims made that the second respondent negligently handled the case during his involvement with it, nor is there anything at all in the claims in respect of alleged breaches of the Trade Practices Act (Cth), s 52. Finally, I can see no fault in the behaviour of the second respondent in respect of the circumstances in which he regarded his retainer as counsel as having been terminated along with the termination of the retainer of his instructing solicitors.
It is not, I think, a question whether the rules of the Bar Association of their own force afforded the second respondent any protection for ceasing to act for the appellant, but the view of the second respondent that he could not continue to act when the matter was adjourned part‑heard, without the appointment of an instructing solicitor for the resumption of the trial, was put clearly to the appellant and accepted by him, and the second respondent, in my opinion, did everything he could to ensure that the appellant understood that if he wished to continue to retain the second respondent and if he wished him not to accept the other brief which had been offered for the dates in question, he must act in a timely way to appoint new instructing solicitors and reinstate the retainer of the second respondent.
In those circumstances of accepted fact, it seems to me that on the merits, putting the question of immunity from suit to one side, no case could be made out against the second respondent. In that regard I would not uphold the appeal, although I take a contrary view in relation to the action against the first respondent.