Donohue v Volanne Pty Ltd (No 2) - [2021] ACTCA 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Donohue v Volanne Pty Ltd (No 2)

Citation:

[2021] ACTCA 11

Hearing Date:

5 May 2021

Decision Date:

12 May 2021

Before:

Murrell CJ

Decision:

Application dismissed

Catchwords:

PRACTICE AND PROCEDURE – CIVIL LAW – Leave to appeal from interlocutory decision – Refusal to grant summary judgment for defendant – Advocates’ immunity from suit – Whether decision attended with sufficient doubt to warrant reconsideration –

Whether substantial injustice would result if leave was refused

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1147
Supreme Court Act 1933 (ACT) s 37E(4)

Cases Cited:

Australian Coal and Shale Employees Federation v

Commonwealth (1953) 94 CLR 621
Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012]
ACTCA 37; 7 ACTLR 48

Capital Property Projects (ACT) Pty Ltd v Australian Capital

Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR
44
Donohue v Volanne Pty Ltd [2021] ACTCA 7
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
House v The King (1936) 55 CLR 499

International Consulting and Business Management Pty Ltd v

Volanne Pty Ltd [2014] ACTSC 175
Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335
Kendirjian v Lepore [2017] HCA 13; 259 CLR 275
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009]
FCAFC 117; 178 FCR 401
More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9
Quach v Butt [2017] ACTCA 4
QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; 1 Qd R 41

Re an application for leave to appeal by Insurance Australia Ltd

[2017] ACTCA 57
Volanne Pty Ltd v Donohue [2021] ACTSC 48

Parties:

Christopher John Donohue trading as Donohue & Co (Applicant)
Volanne Pty Ltd (First Respondent)

John Fragopoulos (Second Respondent)
Anthoula Fragopoulos (Third Respondent)

Representation:

Counsel

I Griscti (Applicant)

K Pattenden (Respondents)

Solicitors

Gilchrist Connell (Applicant)

Aulich Civil Law (Respondents)

File Number:

ACTCA 17 of 2021

Decision under appeal:

Court/Tribunal:	ACT Supreme Court
Before:	McWilliam AsJ
Date of Decision:	31 March 2021
Case Title:	Volanne Pty Ltd & Ors v Donohue
Citation:	[2021] ACTSC 48

MURRELL CJ:

Introduction

1. Pursuant to s 37E(4) of the Supreme Court Act 1933 (ACT), Christopher Donohue (the applicant) seeks leave to appeal from an interlocutory decision of McWilliam AsJ (the
primary judge). In the interlocutory decision, her Honour dismissed the applicant’s

claim for summary dismissal of proceedings brought by the respondents as plaintiffs:
Volanne Pty Ltd v Donohue [2021] ACTSC 48.
2. On 7 April 2021, Elkaim J granted the applicant leave to bring the subject application out of time: Donohue v Volanne Pty Ltd [2021] ACTCA 7 (the extension of time decision).
3. In the substantive proceedings, the respondents allege professional negligence and breach of contract by the applicant, who was their solicitor in litigation in which judgment was entered against them: International Consulting and Business Management Pty Ltd v Volanne Pty Ltd [2014] ACTSC 175.

The applicant sought summary judgment on…

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.

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Details

Case: [2021] ACTCA 11
Decision Date: 5 May 2021

CaseChat Overview and Summary

The application before Murrell CJ concerned an appeal from an interlocutory decision refusing to grant summary judgment for the defendant, Volanne Pty Ltd. The central dispute revolved around the application of the doctrine of advocates' immunity from suit in the context of the proceedings.

The primary legal issue before the Court was whether the interlocutory decision refusing summary judgment was attended with sufficient doubt to warrant reconsideration on appeal. This required the Court to consider the scope and continued applicability of advocates' immunity in Australian law, particularly in relation to the specific circumstances of the case.

Murrell CJ applied established principles regarding the grant of leave to appeal from interlocutory decisions, which generally requires demonstrating that the decision below is attended with sufficient doubt to warrant reconsideration. The Court considered the existing jurisprudence on advocates' immunity and its potential impact on the ability to grant summary judgment.

The application for leave to appeal was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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