Donohue v Volanne Pty Ltd (No 3)

The applicant, Christopher John Donohue, sought leave to appeal an interlocutory decision of McWilliam AsJ in proceedings against the respondents, Volanne Pty Ltd, John Fragopoulos, and Anthoula Fragopoulos. The substantive proceedings concerned a claim of professional negligence and breach of contract against the applicant as a solicitor. The applicant had applied for summary judgment, which was dismissed by McWilliam AsJ on the basis that the pleaded facts did not clearly establish advocates' immunity as a complete defence. The applicant subsequently sought leave to appeal this dismissal.

The legal issues before the court were whether the applicant should pay the respondents' costs of the leave application on an ordinary basis, or alternatively, on an indemnity or solicitor and own client basis from 13 April 2021. This request for a special costs order stemmed from the respondents' contention that the applicant's appeal application was without merit and that they had notified the applicant of this view and the potential for a special costs order in a letter dated 13 April 2021. The respondents argued that the applicant's continued pursuit of the appeal after this notification constituted a "relevant delinquency" or that the case was "hopeless" or had "no chance of success," thereby justifying a departure from the usual party and party costs assessment.

The court determined that the applicant's conduct did not amount to a relevant delinquency warranting a special costs order, nor was the case hopeless or without any chance of success. While the application faced difficulties, it was not so devoid of merit as to justify a special costs order. The applicant had advanced arguable, albeit ultimately unsuccessful, submissions based on relevant authorities, seeking to demonstrate errors in the primary judge's reasoning regarding advocates' immunity. The court noted that the applicant had cited authority supporting the desirability of early determination of advocates' immunity defences in clear-cut cases.

Ultimately, the court ordered that the applicant pay the respondents' costs of the leave application on a party and party basis. The court found that the applicant's actions in filing and pursuing the application, even after receiving the respondents' letter outlining their position and the potential for a special costs order, did not meet the threshold for a special costs order. The application, while unsuccessful, was considered to have raised arguable points, distinguishing it from a "hopeless" or "no chance of success" scenario.