Donohue v Volanne Pty Ltd

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.