Gray v Morris

Case [2004] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

Gray v Morris [2004] QCA 5

PARTIES:

STEPHEN JOHN GRAY
(plaintiff/appellant)
v
ANTHONY JOHN HUNTER MORRIS

(defendant/respondent)

FILE NO/S:

Appeal No 6202 of 2003

DC No 1584 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)
Appeal from interlocutory decision

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2003

JUDGES:

McPherson JA and Chesterman and McMurdo JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made 

ORDERS:

1.   Appeal allowed

2.   Judgment below is set aside

3.   The appellant be granted leave to appeal and that the appeal be allowed

4.   The appellant be granted leave to amend in accordance with his application filed 13 June 2003 or as he may be advised

5.   The appellant’s claim for relief under the Fair Trading Act 1989 (Qld) is dismissed

6.   The respondent pay the costs of the appeal and the application for leave to appeal, as well as the costs of the respondent’s application for summary judgment below

7.   The order for costs made below be set aside

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – summary judgment pursuant to r 293 Uniform Civil Procedure Rules - whether plaintiff has no real prospect of success

EQUITY – FIDUCIARY OBLIGATIONS – whether plaintiff’s allegations if proved capable of making the defendant a fiduciary

TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – whether barrister’s conduct in ‘trade and commerce’

TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – STATUTES RELATING TO MISLEADING OR DECEPTIVE CONDUCT IN TRADE – whether barrister liable under Fair Trading Act 1989 (Qld) for services not provided under a contract

Trade Practices Act 1974 (Cth), s 52, s 82
Fair Trading Act 1989 (Qld), s 5, s 6, s38, s99
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, cited
Bartlett v Weir (1994) 72 A Crim R 511, cited
Bernstrom v National Australia Bank Limited [2002] QCA 231, considered
Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209, cited
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215, cited
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, considered
Fish v Kelly (1864) 17 CBNS 194, distinguished
Foodco Management Pty Ltd v Go My Travel Pty ltd [2001] QSC 291, discussed
Giannarelli & Anor v Wraith (1988) 165 CLR 543, cited
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, cited
Keefe v Marks (1989) 16 NSWLR 713, cited
MacRae v Stevens [1997] ANZ Conv R 129, cited
March v E & MH Stramare Pty Ltd (1990-1991) 171 CLR 506, cited
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27,…

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Details
AGLC
Gray v Morris [2004] QCA 5
Case
[2004] QCA 5
Decision Date

CaseChat Overview and Summary

In Gray v Morris, the Court of Appeal was asked to review a lower court's decision to grant the defendant summary judgment in a case concerning alleged misleading or deceptive conduct. The plaintiff, Mr Gray, had engaged the defendant, Mr Morris, a barrister, to represent him in a family law matter. Mr Gray alleged that Mr Morris failed to provide adequate legal services and engaged in misleading conduct. The Court of Appeal was tasked with determining whether the lower court correctly decided that Mr Gray had no real prospect of success in his claims against Mr Morris.

The central legal issues before the Court of Appeal were whether the lower court correctly applied the criteria for summary judgment under rule 293 of the Uniform Civil Procedure Rules, and whether Mr Morris could be considered a fiduciary in this context. Additionally, the Court had to consider if Mr Morris's conduct fell within the scope of 'trade and commerce' and if he could be held liable under the Fair Trading Act 1989 (Qld) for services not provided under a contract. The Court also needed to decide if Mr Gray's claims could proceed under the Fair Trading Act.

The Court of Appeal found that the lower court had erred in granting summary judgment. The court held that there were genuine issues of fact and law that needed to be determined at a trial. The Court of Appeal found that the allegations, if proven, could indeed establish a fiduciary relationship between Mr Gray and Mr Morris. Furthermore, the Court held that the barrister's conduct could be considered within the scope of 'trade and commerce' and that there were triable issues as to whether Mr Morris was liable under the Fair Trading Act. Consequently, the Court of Appeal set aside the lower court's judgment and allowed Mr Gray's appeal. The Court granted Mr Gray leave to amend his claim and dismissed his claim under the Fair Trading Act. The Court ordered that Mr Morris pay the costs of the appeal and the application for leave to appeal, as well as the costs of his application for summary judgment.

Orders

Orders of the court

1. Appeal allowed

2. Judgment below is set aside

3. The appellant be granted leave to appeal and that the appeal be allowed

4. The appellant be granted leave to amend in accordance with his application filed 13 June 2003 or as he may be advised

5. The appellant’s claim for relief under the Fair Trading Act 1989 (Qld) is dismissed

6. The respondent pay the costs of the appeal and the application for leave to appeal, as well as the costs of the respondent’s application for summary judgment below

7. The order for costs made below be set aside

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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