Del Borrello v Friedman & Lurie

[2002] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P64 of 2001

B e t w e e n -

PETER DEL BORRELLO

Applicant

and

FRIEDMAN AND LURIE (a firm)

First Respondent

KEN JAMES MARTIN

Second Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 2.25 PM

Copyright in the High Court of Australia

MR P. DEL BORRELLO:   Your Honour, I am the applicant.

MS N. JOHNSON, QC:   May it please the Court, together with MR D.M. McKENNA, I appear for the second respondent. (instructed by Jackson McDonald)

GAUDRON J:   Thank you.  I hold a certificate from the Deputy Registrar who certifies that she has been advised by Blake Dawson Waldron, solicitors for the first respondent, that the first respondent will not be appearing at the hearing of this matter and will abide by the decision of the Court, save as to costs.  Yes, Mr del Borrello.

MR DEL BORRELLO:   In brief, your Honours, the principle of my case is that I am seeking justice and proper compensation for an injustice and aggravated damages caused to me as a result of both the first and the second respondent’s particular conduct and actions in the conduct of my case in the District Court.

GAUDRON J:   Well, you must say that it was in relation to the pleadings, must you not, rather than the conduct of the case.

MR DEL BORRELLO:   As it is pleaded in my application for – as I submitted in accordance as I have done, I have already so.  I am briefly summarising more or less what is my arguments ‑ ‑ ‑

KIRBY J:   Mr Del Borrello, I am a bit hard of hearing; I am not hearing everything you are saying, and there is no point of our being here if I do not hear you.  You just have to lift your voice.  It is not magnifying your voice, it is just recording it, so you have to lift up your voice.

MR DEL BORRELLO:   Right, I thought it was magnifying, I beg your pardon, I am sorry.  Yes, I am briefly summarising my case in arguments that is already submitted for special leave for appeal and, in brief, I just want to summarise and give the principles of my case, which is already mentioned in my arguments and case, which I have submitted already.

GUMMOW J:   Yes, we have read the full written submissions that you have put in.

MR DEL BORRELLO:   Can I go ahead then?

GAUDRON J:   Yes.

MR DEL BORRELLO:   As I just mentioned ‑ will I repeat that ‑ the principle of my case is that I am seeking justice and proper compensation for an injustice and aggravated damages caused to me as a result of both the first and second respondent’s particular conduct and actions, which was indicated in my submissions arguments and case which is submitted to the High Court, which was the particular conduct of the first and second respondents in the District Court.

Now, with all due respect, as I understand it, it is the Court’s role to ultimately sustain justice in all cases that are before the Court.

GUMMOW J:   Well, justice according to law.

MR DEL BORRELLO:   According to the law.  And, as I understand, justice is delivered and sustained by a fair proper conduct of hearing, examination and exercise of judicious discretion of the matters, facts, evidence, questions of law and merits of any case that is before the Court which is not found to be frivolous and vexatious.  My case that is before your Honours was not found to be frivolous and vexatious in the court below.  In brief, my case is that I had a legal problem and I had faithfully employed the second respondent to legally and professionally represent me and to properly, professionally and adequately plead, submit and represent my case in the District Court in order to contribute his professional skill and expertise, to help me and the court in the course of delivering justice in the District Court matter.

In brief, my argument is that, considering the fact that my case was only summarily heard without a proper process of preparation and submittal of all the relevant facts, evidence of my case, there are sufficient allegations and evidence and indication that the second respondent has not only failed in his duty to me and to the court to properly professionally and adequately plead, submit and represent the real facts, evidence, questions of law and merits of my case, but he has also mispleaded, missubmitted and misrepresented and twisted my case and has significantly contributed in perverting the course of justice and the administration of justice into the District Court.

KIRBY J:   I do not think this is really relevant, is it?  There has never been an allegation that he perverted the course of justice.  What you are here for is a case where you are suing him for negligence, which raises questions that potentially could be quite important and interesting, but, as was found in the Full Court, the facts of the case do not really tender the matter to this Court in a very appropriate way.  You fell into a dispute with your solicitors, the first respondents, about the fees and you seem to want the second respondent, the barrister, to wait around forever until you sort out that problem; well that just is not reasonable.

MR DEL BORRELLO:   Your Honour, my I say that before that happened, these allegations that I am making, which were not properly heard in a proper manner, in a proper process of court, before we got to that stage, he has mispleaded and missubmitted my case and misrepresented my case, which has resulted in what I am alleging, which was not determined or, how do you say, has not all been properly heard and determined the matters.

GAUDRON J:   You were represented by counsel at the resumed hearing, were you not?

MR DEL BORRELLO:   My counsel only partly represented me and he did ‑ ‑ ‑

GAUDRON J:   You had counsel at the resumed hearing?

MR DEL BORRELLO:   Yes.

GAUDRON J:   How then do you sheet home any loss that you say you have suffered to the first barrister?

MR DEL BORRELLO:   I am not sure whether it is his fault for not properly presenting all the facts.  I believe it is the case that there was not a proper hearing, it was a summary hearing ‑ ‑ ‑

GAUDRON J:   Yes, it is a summary hearing and, in essence, the decision went against you because it was said that you were bound to fail on a number of different headings, but one of them would, it seems to me to be, that in sheeting home any loss that you claim to have suffered to the first barrister, when you were represented by another barrister at the resumed hearing.

MR DEL BORRELLO:   Your Honour, the fact that the first barrister had mispleaded and misrepresented my case, the second barrister did not have a good opportunity to straighten the matter up, because ‑ ‑ ‑

GAUDRON J:   Well that does not seem to have been the first barrister’s fault, that he did not have a good opportunity; that seems to have been referrable to your delay in appointing new solicitors.

MR DEL BORRELLO:   Well, that was contributed, because the first respondent has taken all my valuable resources to employ ‑ ‑ ‑

GAUDRON J:   Well that is against the first respondent.  One has to look at your case against the second.

MR DEL BORRELLO:   Well, that does not excuse the second respondent for mispleading and missubmitting my case in court.  Whatever happened after, when he decided to cease representing me, the damage was already done, is what this all amounts to.  So what happened later is that the damages were already caused and to straighten the matters up he did not contribute anything; he did not stay on the case and straighten the matter up, because he is the only one that knew what he had done against my instructions and ‑ ‑ ‑

KIRBY J:   Well you say, he did not stay on the case, but you did not get promptly a new solicitor who could retain him; he has to take instructions from a solicitor and you had a warning of this.  You cannot just expect a barrister to hang around waiting for you if you do not sort out your problems with your solicitor.

MR DEL BORRELLO:   Your Honour, that comes, the capacity ‑ the first respondent had already taken more money than I had and I had to get two more loans from a bank to pay the first respondent.

KIRBY J:   I realise it is very expensive and I am very sympathetic to that, but the fact is, if you had a surgeon who was going to take out your appendix and you could not sort out the question of his fee, you cannot just expect him to just wait around on the off‑chance that you might be able to do that; he is a busy person, he has to get on with his work.

MR DEL BORRELLO:   Well, the question of fees for the second respondent was assured, that I could pay the second respondent the money, as my letters showed that I was prepared to commit myself further to pay the ‑ ‑ ‑

KIRBY J:   Exactly, you did not respond, so he was entitled to assume, “Well, that is it, I am not needed anymore, I will get on with something else”, and he had warned that he had had another offer.

MR DEL BORRELLO:   If you look in the evidence, he has only given me very few days after the case was adjourned and he ‑ ‑ ‑

KIRBY J:   They may be the only dates he had available.

MR DEL BORRELLO:   But that did not excuse him for reserving the dates to complete his work, to fulfil his work.  I mean, I am electrician, and when I start a job I intend to finish it and if I do not do the job properly I am responsible either to lose my licence or go there and fix it.  Now I do not know how it works; it should work something similar with ‑ ‑ ‑

KIRBY J:   But you see, there is a little complication, he cannot go there unless he has a solicitor and he cannot get a solicitor unless you retain a solicitor.  He cannot just turn up and deal with you without the solicitor present.

MR DEL BORRELLO:   I still do not think that – the solicitor, I did get one later on, before the resumption of the hearing.  That did not excuse him for not carrying on with the matter.  He used that as an excuse not to proceed with the matter or to abandon the matter, but before the time was due for the resumption of the case, it could not have just said, “Well, just because you have not employed the solicitor now, I am not going to” – he could have reserved the dates on his diary to attend that matter and which I did get a solicitor much before the case, the second part‑heading was resumed.  I did, but he still abandoned the case.  In my view, I would like to find ‑ ‑ ‑

KIRBY J:   He says that nothing was done by you to retain him for the resumed hearing and you were represented at the resumed hearing by two other counsel, members of another firm of solicitors.

MR DEL BORRELLO:   I disagree with that, because I did do something about it.  I went to the Law Society to try and get help to how to sort the matter out and besides that, when I did get some more funds, I went and employed another solicitor.  But I still cannot see why, as in good faith, he could not have not retained those hearing dates in his list and fulfilled his job.  In my submission, I cannot see how he just excused himself out of it.

If I can finish the question of the barrister’s immunity:  to my understanding the question of the barrister’s immunity, which is claimed by the second respondent, the question of immunity is not, and it should not be treated, as an element that would override the role of the court to sustain justice ultimately or to override the determining of whether the immunity does apply or not.

GAUDRON J:   No.  I think you could assume that if the only issue in this case were that of the barrister’s immunity, you would be granted special leave, but the problem, it seems to me that you have, is establishing in what respect you say the barrister was negligent in the pleading stage and in establishing that he caused any loss by not turning up to the resumed hearing when you had other counsel.

KIRBY J:   Just imagine in the surgeon ‑ he has the other surgeon rushing in and saying, “I want to have a go at this operation”, and you have the other people retained to do it; it just does not happen that way.

MR DEL BORRELLO:   Your Honour, the first surgeon, when he has made a mistake or something wrong, he is the one that knows what he has done.

KIRBY J:   Even then, if you have retained another surgeon, he would not dream of going in, and similarly with a barrister.

MR DEL BORRELLO:   Well, in this case, the court case, there is only a limited time.  Now a surgeon may have all the time in the world to see what has happened and so on, but when another barrister has to prepare or replead the matter and represent the matter, which was mispleaded and missubmitted and misrepresented in the first case, it is quite a more difficult matter to deal with in just possibly 20 or 30 days.  Now, as I repeat, if the case is not properly heard in a summary ‑ if it is properly heard then maybe justice could be delivered and sustained.  That is my case.

GAUDRON J:   Yes, you have completed your submissions?

MR DEL BORRELLO:   Temporarily, yes.

GAUDRON J:   Very well.  Yes, Ms Johnson.

MS JOHNSON:   Your Honours, there is no error to be found in the decision of the Full Court, either in its understanding or application of the principles of summary judgment or barristers’ immunity from suit.  The law in relation to both issues is well settled by decisions of this Court, was correctly identified, we would submit, and applied by the Full Court and there is no ‑ ‑ ‑

KIRBY J:   I am surprised you start with that, because that is the most attractive thing about giving special leave.  As far as I am concerned, and I hope I made it clear in Boland v Yates, I do not think it is settled.

MS JOHNSON:   But, your Honour, I was submitting that it is currently settled law.  There is a decision of this Court on this point which makes the position clear.

GAUDRON J:   Well, I think you could assume though, as I said to Mr Del Borrello, that if it were only a question of barristers’ immunity, this special leave would be granted, particularly because of the allegations of out-of-court negligence.  But the real issue surely is whether there was any negligence and if there was, whether it was productive of any loss.

MS JOHNSON:   Well, I as about to say, your Honour, that there is, we would say, no other justification to be found in the circumstances of this case that would justify this Court revisiting the issue of Giannarelli v Wraith, simply because the very reason the claim was disposed of summarily is the reason special leave should not be granted, and that is that the claim has no merit and that, therefore, any reconsideration of the principles of barristers’ immunity does not have the potential to affect the outcome of this appeal and, on that basis ‑ ‑ ‑

GUMMOW J:   That seems to be the real point.

MS JOHNSON:   It is, your Honour.

GUMMOW J:   And Justice Kennedy dealt with it in great detail too, exemplary detail, really.

MS JOHNSON:   I was about to say also that one must keep in mind that the judges in the majority in the Full Court put to one side the issue of barristers’ immunity and dissented to the merits and determined that, irrespective of the immunity, there was no merit in this particular case.  You are then led into a situation that if this Court wishes to revisit the principle of barristers’ immunity, they would be doing so in relation to a case, as I said, where the outcome would not be determined by the decision as to the law.

KIRBY J:   You say the judges in the majority, but Justice Murray did not take a contrary view in relation to the first respondent.  What was the point on which he took a different view in respect of your client?  I am looking at page 190.

MS JOHNSON:   The decision, as I understand it, of Justice ‑ ‑ ‑

KIRBY J:   He took a different view in respect of the first respondent, but not in respect of your client, is that correct?

MS JOHNSON:   No, your Honour.  The court, on my understanding, was unanimous in relation to the decision with respect to the first respondent and the appeal was allowed and Mr Del Borrello’s claim in relation to the first respondent is proceeding.

KIRBY J:   Yes.

MS JOHNSON:   It was only in relation to the second respondent where there was any dispute amongst the court, Justices Kennedy and Murray finding that there was no merit ‑ ‑ ‑

GUMMOW J:   That is why we have only an application in respect of your client.

MS JOHNSON:   That is correct, your Honour.  So, as I said, Mr Del Borrello’s action against the first respondents is continuing and is not affected in any way.

GUMMOW J:   Yes, at 190 Justice Murray agrees with Justice Kennedy on your client’s situation.

MS JOHNSON:   He does and, more importantly in relation to the proposition I was just putting, at 40, he says:

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.

So the position is, in relation the majority, is that they both put that issue to one side, found there was no merit, and decided the case accordingly.

KIRBY J:   So that, on that matter, there is no difference on the merits of the matter.

MS JOHNSON:   That is correct, your Honour.

KIRBY J:   Well that is why I asked you why you said there was a majority.

MS JOHNSON:   Because Justice Wallwork dissented in relation to the second respondent and considered that the matter should not have been disposed of by way of summary judgment.  His view being that the obligations of counsel in relation to continuing to act on behalf of parties was something that should be the subject of a hearing and was not sufficiently settled to suggest that the matter had no merit.  That was the only issue upon which there was really any divergence in the court.

Nevertheless, the position is that the issue of barristers’ immunity, although it was acknowledged and correctly acknowledged to be binding, that is the decision in Giannarelli v Wraith to be binding on the Full Court of this State, put that to one side, looked at the merits, found that the matter was without merit and made a decision accordingly.

GAUDRON J:   We do not need to trouble you further, Ms Johnson.

MS JOHNSON:   If it please the Court.

GAUDRON J:   Anything in reply, Mr Del Borrello?

MR DEL BORRELLO:   Your Honour, their Honours in the court below, honourable Kennedy examined or made more details or reasons, but the last Honour did not particularly make his own probable examination of all the facts.  I think he only probably went on the opinion of his honourable Kennedy, which made it 2 to 1, but I still believe that there is facts and evidence there that suggest that the matter should be heard by a proper trial.  That is all, your Honour.

GAUDRON J:   Yes, thank you. 

Given the factual difficulties in the way of ultimate success, particularly in establishing negligence, loss and causation, the present matter is not a satisfactory vehicle to reconsider the issue of a barrister’s liability and negligence.  Accordingly, special leave is refused and, in accordance with the ordinary practice, it will be refused with costs.

AT 2.53 PM THE MATTER WAS ADJOURNED