Donohue v Volanne Pty Ltd - [2021] ACTCA 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Donohue v Volanne Pty Ltd & Ors
Citation:	[2021] ACTCA 7
Hearing Date:	7 April 2021
DecisionDate:	7 April 2021
Before:	Elkaim J
Decision:	See [19]
Catchwords:	PRACTICE AND PROCEDURE – CIVIL LAW – Leave to appeal interlocutory decision – extension of time to file application
Legislation Cited:	Court Procedure Rules 2006 (ACT), rr 5310, 5312 Supreme Court Act 1933 (ACT), s 37J
Cases Cited:	International Consulting and Business Management Pty Ltd & Anor v Volanne Pty Ltd & Ors [2014] ACTSC 175 Volanne Pty Ltd & Ors v Donohue [2021] ACTSC 48
Parties:	Volanne Pty Ltd (First Plaintiff) John Fragopoulos (Second Plaintiff) Anthoula Fragopoulos (Third Plaintiff) Christopher John Donohue t/a Donohue and Co (Defendant)
Representation:	Counsel K Pattenden (Plaintiffs) A Barrett (Defendant)
Solicitors Aulich Civil Law (Plaintiffs) Gilchrist Connell (Defendant)
File Number:	ACTCA 17 of 2021

ELKAIM J:

The three plaintiffs (a company and its two directors respectively) commenced proceedings against the defendant, a solicitor, in 2020.

The cause of action lies in alleged professional negligence and breach of contract on the part of the defendant. He had been the plaintiffs’ solicitor during previous litigation which ultimately resulted in judgments against the three plaintiffs (International Consulting and Business Management Pty Ltd & Anor v Volanne Pty Ltd & Ors [2014] ACTSC 175).

Following the commencement of the current proceedings the defendant took the view that he could not be liable to the plaintiffs because he had the benefit of advocates’ immunity from suit. So strong was his perception of his immunity that he filed an application seeking to have the claim against him summarily dismissed.

The application came on for hearing before McWilliam AsJ on 19 February 2021. Her Honour delivered her decision on 31 March 2021 (Volanne Pty Ltd & Ors v Donohue [2021] ACTSC 48).

Her Honour did not think that the plaintiffs’ action was susceptible to summary dismissal and accordingly dismissed the application.

Notwithstanding her Honour’s carefully reasoned decision, the defendant continues to believe that the allegations against him fall squarely and obviously within his immunity as an advocate and he wishes to appeal from her Honour’s decision.

Because the decision is an interlocutory decision, leave is required in order for the defendant to appeal (r 5310 of the Court Procedures Rules 2006 (ACT)). Further, his application for leave must be filed within seven days of the decision giving rise to the application for leave (r 5312).

The seven days expires today. The defendant has not yet filed his application for leave to appeal. He wishes to have an extension of two days up to 9 April 2021. He says that this is appropriate because the seven days leading up to today have included the two public holidays surrounding Easter.

The plaintiff’s do not consent to the extension. Accordingly the matter was listed before me today in order to deal with the defendant’s request for the two-day extension.

Under r…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Donohue v Volanne Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] ACTCA 7
Decision Date

CaseChat Overview and Summary

The parties to this matter were the plaintiffs, Volanne Pty Ltd, John Fragopoulos, and Anthoula Fragopoulos, and the defendant, Christopher John Donohue, a solicitor. The dispute arose from proceedings commenced by the plaintiffs in 2020, alleging professional negligence and breach of contract against the defendant, who had acted as their solicitor in prior litigation that resulted in adverse judgments. The defendant sought to have the current claim summarily dismissed, asserting advocates' immunity. This application was dismissed by McWilliam AsJ on 31 March 2021. The defendant, believing his immunity was clear, sought to appeal this interlocutory decision.

The primary legal issues before the court were whether to grant the defendant an extension of time to file an application for leave to appeal an interlocutory decision, and consequently, whether to grant leave to appeal. Rule 5310 of the Court Procedure Rules 2006 (ACT) requires leave to appeal interlocutory decisions, and Rule 5312 stipulates that the application for leave must be filed within seven days of the decision. The defendant sought a two-day extension to this filing period, citing the intervening Easter public holidays.

The court considered the requirements for granting an extension of time, which typically involve an explanation for the delay and an assessment of the merits of the appeal. The judge noted that McWilliam AsJ's decision indicated the defendant's submissions regarding advocates' immunity were arguable, albeit ultimately unsuccessful, suggesting the appeal would not be futile. The two-day extension sought was considered reasonable given the public holidays, and the defendant's explanation for the delay was accepted. The court also addressed the defendant's request for indemnity costs, finding it unwarranted given the plaintiffs' lack of information regarding the grounds for the application and the defendant's failure to follow proper procedure.

The court made orders granting the defendant leave to make an application in court for an extension of time to file his application for leave to appeal. The time for filing the application for leave to appeal was extended by two days to 9 April 2021. Furthermore, the defendant was ordered to pay the plaintiffs' costs of the application heard, with payment deferred until the completion of appeal proceedings.

Orders