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:

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

1. 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).

1. 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.

1. 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).

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

1. 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.

1. 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).

1. 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.

1. 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.

1. Under r 5312 an extension of time may be granted by the Court of Appeal or the judge who gave the interlocutory order. It is therefore necessary, in order for me to deal with the request for an extension, to sit as the Court of Appeal constituted by a single judge. This is permitted by s 37J of the Supreme Court Act 1933 (ACT).

1. Normally an application for an extension of time will involve an explanation for the delay as well as a consideration of the merits of the appeal (or leave to appeal).

1. It is clear from her Honour’s decision that she considered the defendant’s submissions to be arguable although ultimately not sustainable. I think that is enough for me to conclude that the application for leave to appeal would not be futile.

1. As far as the delay is concerned, the extension that is sought is only two days. Further the intervention of the two public holidays is sufficient to explain the need for the extension.

1. The basis for the opposition to the orders was that the plaintiffs had simply not been provided with information concerning the grounds upon which the application for leave to appeal would be made. In fact it was not until I sought that information during this afternoon’s hearing that any detail was forthcoming. Until the hearing commenced, the only information provided to the Court was a brief email sent to McWilliam AsJ by the defendant’s lawyer.

1. In respect of costs the defendant, a little surprisingly, sought an order in his favour and, somewhat more surprisingly, that the costs be allowed on an indemnity basis. This was said to be justified because the plaintiffs could have consented to the extension without the need for an appearance in court.

1. Not only will I be making orders allowing the extension but also permitting the application to be made in court without the need for the filing of the appropriate application. In other words, not only did the defendant not give any information to the plaintiffs but he also did not follow the appropriate procedure for seeking the extension.

1. Had a proper explanation been given to the plaintiffs they may well have consented to the extension.

1. In my view the appropriate costs order, in the above circumstances, is that the defendant should pay the plaintiffs’ costs of the application before me today.

1. I make the following orders:

(i)Leave is given to the defendant to make an application in court for an extension of time in which to file an application for leave to appeal from the decision of McWilliam AsJ delivered on 31 March 2021.

(ii)The time in which the defendant is to file an application for leave to appeal from the above decision is extended by two days to the close of business on 9 April 2021.

(iii)The defendant is to pay the plaintiffs’ costs of the application heard today, such costs not to be payable until completion of the appeal proceedings.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 7 April 2021