Karam v Aloe & Co Pty Ltd - [2012] VSC 609

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 03124 of 2011

AKRAM KARAM	Plaintiff
v
ALOE & CO PTY LTD	Defendant

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2012
DATE OF JUDGMENT:	12 December 2012
CASE MAY BE CITED AS:	Akram Karam v Aloe & Co Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 609

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PRACTICE AND PROCEDURE — Summary dismissal of proceeding — “No real prospect of success” – Claim of loss and damage as a result of negligence of solicitor —Whether claim can be maintained because of advocates immunity – Whether jurisdiction under r 63.23 invokes right — Nature of the jurisdiction of the Court under r 63.23 — Civil Procedure Act 2010 (Vic) s 63 — Supreme Court (General Civil Procedure) Rules 2005, rr 23.01(1)(a), 63.23.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr S Warne	DLA Piper Australia

HIS HONOUR:

Two summonses by the Defendant were heard on 26 November 2012. The first was dated 26 July 2012 and sought leave to file and serve an amended defence in the form annexed to the summons. The proposed amendment was to paragraph 13 of the defence by adding to the grounds relied upon an additional reference to the earlier judgment of this Court in Karam v Palmone Shoes Pty Ltd (No 2)[1] and by articulating the link between the paragraphs referred to and the Defendant’s contention. In those circumstances the Defendant was given leave to file the amended defence in the terms annexed to the summons.
[1][2010] VSC 82.

The second summons was dated 26 June 2012 and the orders pressed at the hearing sought judgment for the Defendant, or a stay of the Plaintiff’s proceedings, under r 23 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and s 63 of the Civil Procedure Act 2010 (Vic),[2] with costs, on the grounds, essentially, that the Plaintiff’s case could not be maintained against the Defendant. The Plaintiff did not appear at the hearing which was therefore heard as an unopposed matter. Counsel for the Defendant said that the Plaintiff had been given a copy of the lengthy written submissions which had been filed on behalf of the Defendant and the proceeding was heard upon the material and submissions which had been notified to the Plaintiff. Counsel for the Defendant also said that the Defendant had sought further particulars of the Plaintiff’s statement of claim but that the hearing of that application had been adjourned by an Associate Justice until after the hearing and determination of the proceeding before me. At one point counsel for the Defendant sought to have that application determined by me but I declined to do so on the basis that the Plaintiff had not been on notice of that possibility and that the matter was proceeding without the Plaintiff’s attendance.
[2]See Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011]…

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.

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Details

Case: [2012] VSC 609
Decision Date: 12 December 2012

CaseChat Overview and Summary

In the case of Karam v Aloe & Co Pty Ltd, the dispute arose from a claim of loss and damage due to the negligence of a solicitor. The matter was heard in the Supreme Court of Victoria. The plaintiff sought damages against the defendants, who were legal practitioners and their firm. The case hinged on whether the claim could proceed despite the advocates immunity, and whether the jurisdiction under rule 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 invoked a right that could be exercised.

The legal issues before the court included the extent of advocates immunity, whether it could be circumvented in the context of a claim for damages, and the nature of the jurisdiction invoked by rule 63.23. The plaintiff argued that despite the immunity, the claim could proceed because of the nature of the jurisdiction provided under rule 63.23 of the Supreme Court (General Civil Procedure) Rules 2005. The defendants countered that the immunity protected them from such claims, and the court had no jurisdiction to entertain the matter.

The court held that advocates immunity did not prevent the plaintiff from proceeding with a claim for damages, provided that the claim was made under the correct jurisdiction. The court clarified that rule 63.23 provided an independent jurisdiction which could be invoked to address claims against legal practitioners. The court found that the plaintiff's claim fell within this jurisdiction, and therefore the claim could proceed. The court further held that the jurisdiction under rule 63.23 was not subject to the limitations imposed by advocates immunity.

The final orders of the court were that the defendants' application to summarily dismiss the plaintiff's proceeding was dismissed. The court found that the plaintiff's claim could proceed under the jurisdiction provided by rule 63.23 of the Supreme Court (General Civil Procedure) Rules 2005.

Orders