Foster James Pty Ltd v Dalton - [2010] VSC 327

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2009 of 10502

FOSTER JAMES PTY LTD (ACN 117 293 802)	Appellant
v
GERARD DALTON	Respondent

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2010
DATE OF JUDGMENT:	5 August 2010
CASE MAY BE CITED AS:	Foster James Pty Ltd v Dalton
MEDIUM NEUTRAL CITATION:	[2010] VSC 327

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PRACTICE AND PROCEDURE – Appeal from decision of Magistrate on a question of law – Whether the principle of the advocate’s immunity espoused in D’Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12 precludes defence to claim for payment of fees by lawyer – Dismissal of Appeal by Associate Judge – Rule 58.10(8)(b) Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J O’Bryan	Foster Nicholson Legal
For the Respondent	Ms MB Loughnan SC with Mr DJ Farrands	Hoyle Da Silva Lawyers

TABLE OF CONTENTS

History of the proceedings.............................................................................................................. 2

Summary of decision........................................................................................................................ 2

The defence of Foster James............................................................................................................ 3

Evidence as to competency.............................................................................................................. 4

Evidence as to failure to carry out instructions and making concessions............................. 5

The Magistrates’ decision................................................................................................................ 5

The Appeal.......................................................................................................................................... 6

Test for Rule 58.10(8)(b) application.............................................................................................. 6

Does immunity preclude the defence?......................................................................................... 6

Foster James’ case............................................................................................................................. 10

Defence 1 - The retainer was not fulfilled.................................................................................... 10

Only a defensive position so immunity does not apply.......................................................... 10
Immunity does not apply if there is no re‑opening or re‑litigation of the proceeding........... 11

Defence 2 - Set-off......................................................................................................................... 12

Conclusion......................................................................................................................................... 13

HER HONOUR:

History of the proceedings

Mr Dalton appeared as counsel for the plaintiffs in Griffiths & Beerens Pty Ltd v Duggan.[1] He was instructed by Foster James Pty Ltd. Some of Mr Dalton’s fees were paid, but there is a balance outstanding. Mr Dalton sued Foster James for recovery of the unpaid fees in the Magistrates’ Court[2] and he obtained summary judgment.
[1][2008] VSC 2101 (‘Griffiths & Beerens’); (2008) 66 ACSR 472.
[2]He also sued Mr Alan Foster, but that was not relevant to the matter before me.

Foster James appealed to this Court. Mr Dalton was successful before an Associate Judge in having the appeal summarily dismissed under Rule 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005 on the basis that Foster James did not have an arguable case on appeal.

Foster James appealed from the judgment of the Associate Judge. That appeal is by way of rehearing.[3] When the matter came before me, submissions were made as to the decisions of the Associate Judge and the Magistrate.
[3]RSC 77.06(7).

Both before the Magistrate and the Associate Judge, the key issue was whether the principle of the advocate’s immunity from suit most recently expressed in D’Orta‑Ekenaike v Victoria Legal Aid[4] precluded Foster James from relying on its defence.
[4](2005) 223 CLR 1 (‘D’Orta‑Ekenaike’).

Summary of decision

Foster James alleges that it does not have to pay Mr Dalton’s…

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.

Continue reading Foster James Pty Ltd v Dalton

Details

AGLC: Foster James Pty Ltd v Dalton [2010] VSC 327
Case: [2010] VSC 327
Decision Date: 5 August 2010

CaseChat Overview and Summary

Foster James Pty Ltd, the plaintiff, sought payment of legal fees from Dalton, the defendant, who had engaged him as their legal representative in a previous matter. The dispute was brought before the court, which had to decide whether the principle of advocate's immunity, established in D’Orta-Ekenaike v Victoria Legal Aid, could be used by the defendant to avoid paying the fees owed to the plaintiff. The case was initially heard and dismissed by a magistrate, and the defendant appealed this decision to the Supreme Court. The appeal was dismissed by an Associate Judge, and the plaintiff subsequently brought the matter before the court again, seeking a review of the Associate Judge’s decision.

The central legal issue was whether the principle of advocate's immunity, which generally protects lawyers from liability for their professional actions, could be invoked by the defendant to avoid paying the fees owed to the plaintiff. The court had to determine whether this principle applied to the situation where a lawyer was being sued for unpaid fees by their former client, and whether the principle could be used as a defence in this context. The court also needed to consider the applicability of Rule 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005 in relation to the appeal process.

The court found that the principle of advocate's immunity does not extend to preventing a lawyer from being held liable for unpaid fees owed to their former client. The court emphasised that the principle is intended to protect lawyers from liability for their professional actions, and not to shield them from financial obligations arising from their professional engagements. The court also noted that the principle does not apply in situations where the lawyer is being sued for unpaid fees by their former client. The court further held that the Associate Judge’s decision to dismiss the appeal was correct, and that the plaintiff was not entitled to a review of that decision under Rule 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005.

The court dismissed the plaintiff’s appeal and affirmed the decision of the Associate Judge. The court held that the principle of advocate's immunity does not preclude the defendant from being held liable for the unpaid fees owed to the plaintiff. The court further held that the plaintiff was not entitled to a review of the Associate Judge’s decision under Rule 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005. The defendant was therefore not required to pay the fees owed to the plaintiff.

Orders