Del Borrello v Friedman & Lurie (A Firm)

Peter Del Borrello sued Friedman & Lurie, a firm of solicitors, and Ken James Martin, a barrister, for negligence in their conduct of a District Court action. The solicitors and barrister had represented Del Borrello in the District Court action between 5 August and 11 September 1992, but ceased to act after four days of hearing when the action was part-heard. The action was heard before Healy DCJ on 7-10 September 1992, with Friedman & Lurie and Martin representing Del Borrello as solicitors and counsel respectively. The case was then adjourned. It resumed hearing on 15, 16 and 17 February and 23 March 1993, with new solicitors, Kott Gunning, representing Del Borrello. Judgment was delivered on 14 February 1994 and the plaintiff's claim, ie J-Corp's, claim succeeded and Del Borrello's defence and counterclaim were dismissed for reasons published by the Judge on that date and covering 28 pages. Del Borrello lodged an appeal to the Full Court, FUL 38 of 1994. His amended notice of appeal, which he prepared himself, covered 18 pages. He applied before the Full Court to adduce further evidence and to extend the time for entry of the appeal. Those applications were dismissed by the Full Court on 18 December 1995 and in addition the appeal was dismissed for lack of prosecution. Del Borrello sued the first defendant for professional negligence and nine particulars of that are given. He has also sued them for overcharging and for wrongful exercise of a claimed lien over his file which disadvantaged and obstructed him from employing a new solicitor in sufficient time to prepare his case properly. The first defendant had a complete defence to this action because of an out-of-court agreement reached with the plaintiff on 5 February 1993. The second defendant claimed to have a complete defence to the plaintiff's claim and part of that defence was a barrister's immunity from suit. The court held that the immunity protected the second defendant from suit in relation to allegations found in particular 10(h) of the statement of claim that the second defendant withheld and failed to present significant discovered evidence in support of the defence and counterclaim, and in relation to particular 10(i) that without Del Borrello's knowledge and consent the second defendant failed to call relevant available witnesses and advised the Court that no further witnesses other than Del Borrello would be called when he was instructed to call all of those relevant and available witnesses. The court also held that the second defendant had a good defence to the claims for negligence based on amendment to the pleadings which are found in particulars 10(c), (d), (e) and (g) of the statement of claim.