Foster James Pty Ltd v Dalton - [2010] VSC 133

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2009 10502

FOSTER JAMES PTY LTD	Appellant
V
DALTON	Respondent

JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	1 March 2010 (and supplementary written submissions received on 10, 17 March 2010)
DATE OF JUDGMENT:	15 April 2010
CASE MAY BE CITED AS:	Foster James Pty Ltd v Dalton
MEDIUM NEUTRAL CITATION:	[2010] VSC 133

REASONS FOR DECISION

LEGAL PRACTITIONERS ― Immunity from suit for conduct of litigation in Court ― Claim by barrister against instructing solicitor for unpaid fees for conduct of trial― Allegation of incompetence and breach of retainer ― No claim by client for loss ― Whether immunity applies

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

HIS HONOUR:

In Australia, it is a fundamental and pervading tenet of the judicial system that an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in Court or in work out of court which is intimately connected with the conduct of a case in court.[1] The central justification for this immunity is the principle that controversies resolved by the judicial branch of government are not to be reopened except in a few narrowly defined circumstances. The desideratum of finality in legal proceedings is regarded as being not only a matter of particular interest to the disputants but also for society at large and the administration of justice.[2]
[1]D’Orta-Ekenaika v Victorian Legal Aid (2005) 223 CLR 1 at [45], [84].
[2]D’Orta-Ekenaika at [31] ff.

This truly is an extraordinary case. The respondent, a barrister, sued the appellant, his instructing solicitor, in the Magistrates’ Court for payment of his fees for appearing for plaintiffs in a substantial civil case in this Court. In circumstances I shall expose later, the appellant sought to resist the claim by asserting that the respondent was exhibiting signs of stress and anxiety, and did not act with expectable competence and diligence. The appellant says that was in breach of the retainer and as a result, he ― but not the client ― has suffered a loss because the disappointed client would not pay the appellant’s fees for work done on the case. Can that be reasonably argued to be a defence and set-off to the barrister’s claim, or is it shut out by the advocate’s immunity? That is the principal issue in this appeal.

In a contested application for summary judgment, the Magistrates’ Court gave the respondent judgment on 6 November 2009 for $100,000 plus costs of $6,578.[3] In a written decision, the Magistrate decided that the respondent’s services could not be said to be valueless, and that the advocate’s immunity prevented the appellant from defending the claim.
[3]The barrister abandoned the excess of his claim for $105,950 so as to come within the Magistrates’ Court jurisdictional…

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 133
Case: [2010] VSC 133
Decision Date: 15 April 2010

CaseChat Overview and Summary

The appellant, Foster James Pty Ltd, an instructing solicitor, appeals against a decision of the Magistrates’ Court that the respondent, a barrister, is entitled to be paid his fees for appearing for plaintiffs in a substantial civil case in the Supreme Court. The appellant sought to resist the claim by asserting that the respondent was exhibiting signs of stress and anxiety, and did not act with expectable competence and diligence. The appellant says that was in breach of the retainer and as a result, he ― but not the client ― has suffered a loss because the disappointed client would not pay the appellant’s fees for work done on the case. The principal issue in this appeal is whether the appellant’s allegations of incompetence and breach of retainer can be reasonably argued to be a defence and set-off to the respondent’s claim for fees, or whether they are shut out by the advocate’s immunity. The Court held that the advocate’s immunity from suit encompasses actions in tort and contract, and the impugned actions of the respondent attract the immunity. To allow the appellant to resist the claim would defeat the central justification of the advocate’s immunity. The appeal was dismissed with costs.

Orders