Karam v Mazzeo
[2016] VSC 813
•22 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 03123
| AKRAM KARAM | Plaintiff |
| v | |
| LENNON MAZZEO | Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 June 2016 |
DATE OF JUDGMENT: | 22 December 2016 |
CASE MAY BE CITED AS: | Karam v Mazzeo |
MEDIUM NEUTRAL CITATION: | [2016] VSC 813 |
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NEGLIGENCE - claim against former solicitors – summary judgment sought by solicitors – plaintiff did not attend – allegations of bias and other reasons not to proceed unfounded - advocates’ immunity applies in respect of some allegations – no loss shown in respect of others – no real prospect of success – summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | Mr N J Hoyne | Lennon Mazzeo Lawyers |
TABLE OF CONTENTS
Introduction and summary............................................................................................................... 1
Background......................................................................................................................................... 2
Preliminary issues.............................................................................................................................. 5
Notice of the hearing date and service of the summons......................................................... 5
Response to the plaintiff’s complaint........................................................................................ 7
Further reasons advanced by the plaintiff as to why the application should not proceed 8
Legal Profession Act 2004.................................................................................................. 8
Adjournment pending the weekly payments proceeding............................................ 9
Allegations of bias............................................................................................................. 10
Amendment of the defence........................................................................................................ 12
Plaintiff’s case................................................................................................................................... 12
Material......................................................................................................................................... 12
Agreed or undisputed facts....................................................................................................... 13
Allegations of negligence.......................................................................................................... 15
Defendant’s submissions................................................................................................................ 18
Discussion.......................................................................................................................................... 19
Test for summary judgment...................................................................................................... 19
Advocates’ immunity................................................................................................................. 19
Application to this claim............................................................................................................ 20
Paragraph (a)...................................................................................................................... 20
Paragraphs (b)-(f)............................................................................................................... 21
Paragraphs (g) and (h)....................................................................................................... 21
Paragraph (i)....................................................................................................................... 24
Paragraph (j)....................................................................................................................... 24
Paragraph (k)...................................................................................................................... 25
Paragraph (l)....................................................................................................................... 25
Paragraph (m)..................................................................................................................... 28
Paragraph (n)...................................................................................................................... 31
Paragraphs (o) and (p)...................................................................................................... 32
Particulars of loss and damage....................................................................................... 33
Discretion..................................................................................................................................... 34
Conclusion......................................................................................................................................... 34
HER HONOUR:
Introduction and summary
In his statement of claim the plaintiff, Mr Karam, seeks damages against his former lawyers, Lennon Mazzeo, alleging negligence in their conduct of his proceedings for common law damages for workplace injury in the period 30 September 2009 to 19 November 2009. These reasons concern a summons filed by Lennon Mazzeo seeking summary judgment or strike out of the statement of claim.
The proceeding commenced by the filing of Mr Karam’s writ and statement of claim on 20 June 2011, but it has not progressed in substance beyond filing of the defence on 1 August 2011. Thereafter there were a number of interlocutory applications made by Mr Karam, including an application for summary judgment in his favour, which was unsuccessful. The subsequent delay in the proceeding has been largely due to Mr Karam’s repeated applications for adjournment until the determination of a proceeding in the Magistrates’ Court. He first made that application by summons filed 29 April 2014. The Magistrates’ Court proceeding was later transferred to the County Court, and apparently has not yet concluded.
Lennon Mazzeo did not oppose the repeated adjournment of this proceeding, and on occasion consented to it, until April of this year. On 26 April 2016 the parties appeared before J Forrest J and his Honour made orders for the filing and hearing of this summons. The circumstances surrounding that appearance are contested by Mr Karam, and I will return to them shortly. His Honour ordered on that day that Lennon Mazzeo file any application for strike out or summary dismissal of the proceeding after 2 June 2016 and that the parties file and serve any affidavits by 14 June 2016. His Honour listed the foreshadowed application before me on 28 June 2016.
Lennon Mazzeo subsequently filed a summons on 14 June 2016 which sought that it have leave to file and serve instanter an amended defence and that there be summary judgment for the defendant. Alternatively, Lennon Mazzeo sought that the statement of claim be struck out.
Lennon Mazzeo filed an affidavit in support on the same day, 14 June 2016. Mr Karam filed an affidavit on 21 June 2016 which acknowledges receipt of the summons but asserts that it was issued and served as an abuse of process.
Prior to that time, on 14 June 2016, Mr Karam filed and served a ‘Notice of Advice’ which makes complaints about the actions of both me and J Forrest J on 26 April 2016. The notice also asserts that I should recuse myself from hearing the summons on 28 June 2016.
Mr Karam did not attend the hearing on 28 June 2016, although he had been personally served with the summons and was plainly aware of the hearing date. I ruled on various preliminary matters, including Mr Karam’s assertion that I should recuse myself, and then heard the submissions for Lennon Mazzeo on an undefended basis. These reasons now set out my conclusions on the preliminary matters and my determination of the summons in favour of Lennon Mazzeo. I will give summary judgment for the defendant, although not in every instance for the reasons that they advance, and hear the parties on costs. I apologise to the parties for the delay in delivery of these reasons.
Background
The plaintiff complains in this proceeding about the defendant’s conduct of two proceedings he had instituted against his former employers, Palmone Shoes Pty Ltd, in respect of injuries he claimed arose from his employment. One proceeding concerned the development of asthma, the other the development of malignant myeloma i.e. a cancer. The plaintiff was represented by a number of different solicitors in those proceeding, most immediately prior to Lennon Mazzeo by Aloe & Co Pty Ltd (‘Aloe’). Those solicitors resumed acting for him after Lennon Mazzeo ceased to act.
The proceedings were heard together at trial before T Forrest J. His Honour gave judgment in those proceedings on 18 January 2010, in which he found for the plaintiff in the asthma case, but against him in the cancer case. His Honour published a subsequent judgment in relation to costs on 23 February 2010. The ultimate result was that although Mr Karam was successful in obtaining an award of damages in the asthma case, that award was held in court subject to liens for the costs of Aloe and Lennon Mazzeo.
There has been much subsequent litigation by way of applications and appeals.[1] Suffice it to say that as far as I am aware Mr Karam has not been successful in overturning either the substantive judgments in the asthma and cancer cases, the costs orders, or payment out of the damages award to Aloe and Lennon Mazzeo.
[1]The history of applications and appeals to 3 June 2014 is summarised in the judgment of Nettle JA (as he then was) in Karam v Palmone Shoes Pty Ltd [2014] VSCA 148 at [1]-[17]. Subsequent applications and appeals are referred to by J Forrest J in his judgment on the extended litigation restraint order he granted on the application of Lennon Mazzeo against Mr Karam Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228 at [1]-[20].
Mr Karam instituted proceedings for negligence against Aloe on the same day that he instituted these similar proceedings against Lennon Mazzeo. Aloe, however, took a more interventionist stance than the current defendant and sought summary judgment in their favour at an early stage. That summons was heard by Pagone J in November 2012 and was successful.[2] Mr Karam was not successful in subsequent appeals against that decision.
[2]Karam v Aloe & Co Pty Ltd [2012] VSC 609.
In this proceeding, Lennon Mazzeo either did not object to, or acquiesced in, repeated adjournments, most recently by proposed consent orders dated 10 February 2016 which proposed that the proceeding be adjourned to a date to be fixed. Those orders came to me for consideration. Rather than making orders in those precise terms, by orders made 11 February 2016 I listed the proceeding for directions on 26 April 2016 at 10.30am, and further stayed the proceeding to that time. These orders were in the same form as orders made by me to which Lennon Mazzeo had not previously objected.
It appears that in the ensuing period and prior to 26 April 2016, Lennon Mazzeo formed the view that they would no longer consent to any adjournment of this proceeding, and wished to be protected against further appeal or application by the plaintiff, unless the application or appeal was first adjudged by the Court to have some merit. Lennon Mazzeo made application in one of the original proceedings for an extended litigation restraint order against Mr Karam. The judgment of J Forrest J on that application records that Lennon Mazzeo also indicated their intention to have this proceeding dealt with, apparently as early as 5 April 2016.[3] The judgment records that the application for the extended litigation restraint order was heard on 19 April 2016, but that Mr Karam did not appear.
[3]Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228, judgment of J Forrest J on the application for a litigation restraint order at [3].
I was, however, entirely unaware of these developments until after I conducted the adjourned directions hearing in this proceeding on 26 April 2016. My associate made the enquiry always made by my chambers of parties as to their intentions at an upcoming hearing by email and letter to the parties dated 18 April 2016. Neither party replied. As my orders of that day record, Mr Karam attended but Lennon Mazzeo did not appear at the directions hearing. Mr Karam handed up proposed consent orders that he had sent to Lennon Mazzeo proposing further adjournment, which had not been returned to him. I marked those consent orders as an exhibit, and made an adjournment and stay order in similar terms to orders made previously, which Lennon Mazzeo had either agreed or had not opposed.
Prior to the directions hearing before me I was aware only that J Forrest J had requested that my associate send Mr Karam to appear before him after the directions hearing before me. According to the Court’s daily list, the proceeding listed before J Forrest J on 26 April 2016 was a different proceeding, Karam v Aloe & Co Pty Ltd, S CI 2011 3124. This is the proceeding that had been summarily dismissed by Pagone J in 2012. I do not know how it came about that this was the proceeding name and number recorded in the daily list, but the transcript before J Forrest J makes it plain that his Honour intended to deal with this proceeding. In accordance with that request, my associate directed Mr Karam to the hearing before J Forrest J after the conclusion of the directions hearing before me.
I recorded this account in similar terms in the hearing on 28 June 2016 and will provide the transcript of that hearing, including my unrevised ruling, to the parties. I will also provide a copy of the transcript of what occurred before J Forrest J on 26 April 2016, as provided to me by counsel for Lennon Mazzeo at the hearing on 28 June 2016; the Court list for 26 April 2016; and a copy of letter dated 22 June 2016 from the chambers of the Chief Justice to Mr Karam to which I will refer in more detail shortly.
Preliminary issues
Notice of the hearing date and service of the summons
The Court is permitted to proceed to hearing of an application if satisfied that the respondent to the application, here Mr Karam, has been served with the application and is on notice of the hearing date. In this case, I was satisfied of both those pre-requisites by reason of the following.
The first is that Mr Karam was present in court on 26 April 2016 when His Honour Justice J Forrest listed this application for hearing on 28 June 2016. The transcript shows that his Honour refused a request by Mr Karam to adjourn the hearing date, and that his Honour noted that the hearing date was 28 June 2016 on a number of occasions.
I was satisfied that Mr Karam had been served with the summons and the affidavit in support by virtue of an affidavit of service sworn by Cynthia Amato, office clerk, who deposes to personal service on Mr Karam of those documents on 14 June 2016 at 39 Raglan Street, South Melbourne. As I will shortly set out, by 14 June 2016, Mr Karam had moved to 39 Raglan Street, South Melbourne, from his earlier address at Melton, to the knowledge of Lennon Mazzeo. Pursuant to the orders of J Forrest J the summons on its face is made returnable on 28 June 2016.
Finally, it is plain from documents filed by Mr Karam that he had received the summons and was aware of the hearing date. The first of these documents are two documents headed ‘Notice of Advice’, the first dated 2 June 2016 and received on that date, and the second dated 14 June 2016. The envelope accompanying the second Notice of Advice is date stamped by the Prothonotary as received on 15 June 2016. Each Notice of Advice gives as the address for Mr Karam his Melton address: 5/36 Unitt Street, Melton. The first Notice of Advice, however, attaches a letter dated 30 May 2016 to Mr Karam from the Department of Health and Human Services informing him that a property is now available for him in ‘Inner Metro South’. In that Notice of Advice, Mr Karam states:
Take Notice that due to the necessity to change my living place at the current address of 5/36 Unitt Street of Melton to the new living Place of address 39 Raglan Street, South Melbourne in the state of Victoria, I am seeking a period of time of 30 days to be given to be able to manage the move, therefore, I will not be able to make or serve any document or appear in any hearing until I move and settle at the new address.
The Notice of Advice dated 14 June 2016 is in these terms:
Take Notice that the Plaintiff is rejects as a matter of right that Her Honour Associate Judge Lansdowne to conduct of the hearing on 28 June 2016 that has been listed by the irregular order of Judge J Forrest dated 26 April 2016 for the following reasons:
1.Her Honour Associate Judge Lansdowne was biased and her conduct was not impartial at the hearing on 26 April 2016, as the affidavit dated 2 May 2016 provided.
2.The conduct of Her Honour Associate Judge Lansdowne at the hearing on 26 April 2016 is subject to complaint to the Honourable Chief Justice Warren dated 29 April 2016.
3.The issuing of the order by His Honour Judge J Forrest dated 26 April 2016 is subject to complaint to the Honourable Chief Justice Warren issued on 2 April 2016.
Therefore, there will be no attendance by the plaintiff until the plaintiff receives a response from Honourable Chief Justice Warren.
I will return to the allegations of bias and assertion by Mr Karam that he will not attend until he receives a response from the Chief Justice shortly. For current purposes, the Notice of Advice dated 14 June 2016 plainly shows that Mr Karam was aware of the hearing listed on 28 June 2016. It refers expressly to the proposed hearing on 28 June 2016 and to the making of orders setting that date on 26 April 2016.
The earlier Notice of Advice also implies by its contents that Mr Karam was fully aware of the import of the orders made by J Forrest J on 26 April 2016.
Notwithstanding the indication in the first Notice of Advice that Mr Karam would be unable to take any steps until early July 2016, he did file an affidavit dated 21 June 2016 which also expressly refers to the summons by Lennon Mazzeo and acknowledges receipt of the summons on 14 June 2016. This affidavit also plainly shows that Mr Karam was well aware of the hearing date.
For completeness, I add that Lennon Mazzeo sent to Mr Karam at his new address a copy of the authenticated orders of J Forrest J of 26 April 2016. The affidavit of service of Lauren Hepworth sworn 23 June 2016 records that the letter was marked delivered to Mr Karam on 23 June 2016.
Response to the plaintiff’s complaint
Mr Karam indicated in his second ‘Notice of Advice’ that he did not propose to attend until he had received a response from the Chief Justice. As set out in my ruling on 28 June 2016, it appears that a response to Mr Karam was sent prior to the hearing. However, I could not be satisfied that this letter had in fact been received by him.
First, it is addressed to him at 5/36 Unitt Street, Melton VIC 3337. It is apparent from the other documents on the Court file that this was not Mr Karam’s address as at 22 June 2016, and, indeed, that he had advised the Court at least by his affidavit of 21 June 2016 that he had now moved to 39 Raglan Street, South Melbourne. As noted earlier, he was served on 14 June 2016 at that address and so it would appear that he had moved or was in the process of moving by that date, although his Notice of Advice dated 14 June 2016 still gives the Melton address. I do not know how it came about that the letter dated 22 June 2016 from the Chambers of the Chief Justice was sent to Mr Karam at the Melton address.
I am also unaware as to whether Mr Karam had made arrangements for any mail sent to him at that address to be forwarded to him at his new South Melbourne address. Even if he had made such arrangements, if the letter was posted by ordinary mail I could not be confident that it would have been received, redirected and received at the new address within less than a week.
If the letter was not received by Mr Karam, that non receipt does not, however, excuse his non-attendance on 28 June 2016. Parties are not able to put conditions on their attendance at Court, if otherwise aware of the hearing date, served with the application, and able to attend. I accepted a submission to this effect from counsel for Lennon Mazzeo in deciding to proceed with the hearing on 28 June 2016. The Court rules make provision for a situation where orders are made in the absence of a party, and that party has an explanation for his or her non-attendance, and I referred to these rules in my ruling.
Notwithstanding that Mr Karam did not attend I took into account the material that he had filed, including his affidavit in response sworn 21 June 2016.
Further reasons advanced by the plaintiff as to why the application should not proceed
Legal Profession Act 2004
In his affidavit of 21 June 2016, Mr Karam asserts that Lennon Mazzeo are unable to bring this application because of the provisions of s 4.3.2 of the Legal Profession Act 2004 (Vic). At the time this proceeding commenced, that section provided that :
An Australian legal practitioner must not commence proceedings in relation to the subject matter of a civil dispute between a person and the practice or practitioner after the practice or practitioner has received notice under s 4.2.8 of a civil complaint about the conduct of the practice or practitioner in respect of the dispute.
Mr Karam asserts in that affidavit that he made a compliant to the Legal Services Commissioner in February 2011. The Legal Services Commissioner replied by letter dated 9 March 2011, advising that the complaint had been dismissed because of pending court proceedings in relation to legal costs. The Legal Services Commissioner advised, however, that Mr Karam could contact the office again once the proceedings then on foot had been finalised, with further information to support his complaint. Mr Karam’s argument, as I infer it to be from his affidavit, is that the complaint was still on foot and so Lennon Mazzeo could not bring their application for summary judgment.
I accept the submission of counsel for Lennon Mazzeo that the argument is misconceived. Section 4.3.2 prohibits the commencement of proceedings. The application by Lennon Mazzeo is not the commencement of a proceeding – it is an application made within a proceeding brought by Mr Karam. A similar argument was rejected by Whelan JA on appeal against the summary judgment given by Pagone J in the similar proceeding instituted by Mr Karam against Aloe. His Honour noted that there, as here, it was not the legal practitioner who had taken proceedings after the complaint was made, but the client. Further, he held the argument to be inapplicable because the complaint had already been dismissed by the Legal Services Commissioner prior to the institution of the proceeding.[4] The same conclusion applies here - even if s 4.3.2 otherwise applied, the plaintiff’s complaint had been dismissed.
[4]Karam v Palmone Shoes Pty Ltd [2014] VSCA 148 per Whelan JA at [53]-[54].
Adjournment pending the weekly payments proceeding
The second reason why the hearing should not proceed, apparently asserted by Mr Karam in his affidavit, is that this proceeding should await the determination of his proceeding in the Magistrates’ Court, now transferred to the County Court, in which he seeks weekly payments and medical expenses relating to his cancer. As noted, the currency of that proceeding had been until 26 April 2016 the basis on which Lennon Mazzeo did not oppose Mr Karam’s repeated applications for adjournment.
Although I had not previously discussed the reason for the continued adjournments with the parties in any detail, I had assumed that there may be some connection between the two proceedings in terms of loss i.e. if Mr Karam was successful in the weekly payments claim, that may diminish the loss that he seeks in the current proceeding. Counsel for Lennon Mazzeo submitted at the hearing on 28 June 2016 that even if that was so, it was not a barrier to the determination of their application for summary judgment because the application does not relate to quantum, but rather to the capacity of Mr Karam to bring the proceeding. I accepted that submission.
Allegations of bias
Mr Karam alleges in his affidavit in response and second Notice of Advice dated 14 June 2016 that I acted ‘partially’ at the hearing on 26 April 2016 and also that the order of J Forrest J was irregular and obtained by fraud. He gives detail of these allegations in an affidavit sworn 2 May 2016 which is attached to those documents.
An application that a judicial officer recuse him or herself because of actual or apprehended bias must be made to that judicial officer, and that is ordinarily done in person or by legal representative at a hearing. The plaintiff did not attend to make any such application. Nevertheless, I thought it appropriate to consider whether I should recuse myself given the matters advanced in writing by Mr Karam. I concluded that it was not necessary or appropriate that I recuse myself, for the reasons recorded in my ruling on 28 June 2016. I will release that ruling to the parties unrevised, in an endeavour to allay any concerns that might arise if, as in the usual course, it was revised.
In summary, I record in these reasons that the allegations made by Mr Karam of actual bias by me are without foundation, as are the allegations of any improper conduct by my then associate. I have set out earlier in these reasons that I was unaware of Lennon Mazzeo’s intended application prior to conducting the directions hearing before me and was aware only that there was a proceeding concerning Mr Karam listed before J Forrest J, which was shown in the Court list as a different proceeding. I only became aware that the hearing before J Forrest J concerned this proceeding, that Lennon Mazzeo intended to seek summary judgment, and that it was intended that that application be heard by an associate judge on 28 June 2016 after the hearing before J Forrest J was concluded.
It was appropriate that I be that associate judge for two reasons. First, I was familiar with the proceeding. Secondly, the selected date fell within the Court vacation and most other associate judges were unavailable. As it happened, I was taking my leave later and so was able to hear the application. I was not consulted about hearing the application, or the hearing date, prior to the hearing before J Forrest J which Mr Karam attended.
In my view, these matters show not only that there was no actual bias on my part on 26 April 2016 but also that the test for apprehended bias was not satisfied. I consider that once these matters were explained to a fair minded lay observer the test for apprehended bias would not be satisfied - which is that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of this application.[5]
[5]This being the test for apprehended bias as per Ebner v Official Trustee in Bankruptcy [2000] HCA63 at [6].
There remains the question as to whether the plaintiff’s subsequent complaint about my conduct requires me to recuse myself. In my view, the mere making of a complaint of bias cannot be enough to require a judicial officer to recuse herself or himself from hearing or continuing to hear a matter. If it were otherwise, a litigant so minded could stifle the hearing of any application against her or him. Further, recusal without a proper basis would not be consistent with the duty of a judicial officer to hear matters listed before her or him.
I have not read the complaints made by Mr Karam to the Chief Justice, and so do not know their contents, unless they are in identical terms to the documents he has filed (his two Notices of Advice, and his affidavit in response). I have read the response from the Chambers of the Chief Justice dated 22 June 2016. That response states four things. First, that there was an administrative error in relation to the listing of the directions hearings on 26 April 2016, but that this did not result in any denial of procedural fairness. Second and fourth, that the directions hearing before Justice J Forrest was procedural only and that there ‘has been no determination or pre-judgment of your substantive rights’. In relation to what is described as ‘the matters contained in your correspondence’, the letter states that any application to adjourn or dismiss the application should be made to me on 28 June 2016.
In my view, there is nothing in this response that means a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of the application. To the contrary - it emphasises that there has been no pre-judgment of the plaintiff’s rights, and determination of the application is mine alone on the basis of what is put to me at the hearing.
Amendment of the defence
Lennon Mazzeo sought by their summons that they have leave to amend their defence instanter - in other words, that they be permitted to proceed with the application for summary judgment on the basis that the amended defence was their defence. The amendment adds a substantive defence based on the ‘advocates’ immunity’, and refers to the cases establishing or applying that immunity. I granted that leave for the following reasons.
The proposed amended defence was exhibited to the affidavit in support of the summons, which was personally served on Mr Karam. He was accordingly on notice of the intended amendment. Further, the immunity was the basis on which his similar claim against Aloe had already been dismissed. It follows that he could be assumed to have some familiarity with it. He was also given by the terms of the proposed amendment reference to the underlying cases, and so armed with the means to argue against the sufficiency of the defence if the amendment was allowed. Finally, Lennon Mazzeo have foreshadowed from the time of Mr Karam’s own application for summary judgment in his favour, due to deficiencies in the defence, that they would seek to amend the defence at an appropriate time to add at least a defence based on the advocates’ immunity.[6] Mr Karam’s application was dismissed by Zammit AsJ (as she then was) on 7 September 2011 and the dismissal was affirmed on appeal.
[6]Karam v Lennon Mazzeo [2011] VSC 507 per Cavanough J on appeal from Zammit AsJ at [16].
Plaintiff’s case
Material
An application for summary judgment must be determined on the basis of the pleadings, and the evidence given in support of the application and in response to it. The evidence in support is given in the affidavit of Nick Mazzeo sworn 14 June 2016. Mr Karam has filed and served an affidavit in response, his affidavit of 21 June 2016, but that affidavit does not answer any of the factual assertions made by Mr Mazzeo in his affidavit. It only sets out the facts in support of the various reasons why, in Mr Karam’s view, the proceeding is flawed and/or should await the determination of his claim for weekly payments and medical expenses, and recites the fact of his complaints against me and Justice J Forrest. I have dealt with these preliminary matters above. It follows that where Lennon Mazzeo’s case for summary judgment turns on facts asserted by Mr Mazzeo, his evidence is unopposed.
The statement of claim contains some obvious errors, but they do not appear to have caused any real confusion in the mind of Lennon Mazzeo. For the purpose of elucidating the allegations, I have also read Mr Karam’s affidavit sworn 22 July 2011 and filed 15 August 2011 (which was in support of his unsuccessful application for summary judgment in his favour). I should note that I could not locate on the Court file all of the exhibits to Mr Karam’s affidavit of 22 July 2011, and so have only been able to take into account those that remained on the file, or in one instance discussed later in these reasons, was handed up to me by counsel for Lennon Mazzeo. I have also read medical reports I located on the file, attached to an ‘Application for Urgent Case’ filed by Mr Karam on 21 November 2012.
Agreed or undisputed facts
It does not appear disputed that Mr Karam signed a costs agreement provided to him by Lennon Mazzeo on 30 September 2009, thereby engaging those solicitors to act for him. Both the statement of claim and the amended defence say in their respective paragraphs 2 that the engagement commenced on 30 November 2009. This contradicts the costs agreement, which is exhibited to Mr Mazzeo’s affidavit, and is inconsistent with the time sequence in Mr Karam’s affidavit. It was conceded to be incorrect by counsel for Lennon Mazzeo at the hearing.
The costs agreement identifies the matter only as ‘Workcover’. At the time the retainer commenced, Mr Karam had a proceeding for common law damages relating to his asthma claim pending in the County Court and a proceeding for statutory entitlements only relating to his cancer claim pending in the Magistrates’ Court. Lennon Mazzeo caused the asthma claim to be transferred to the Supreme Court and commenced a proceeding in the Supreme Court for common law damages for the cancer claim. The two proceedings were ultimately heard together by consent in a trial which commenced on 18 November 2009.
As part of the pre-trial preparation, Mr Karam was ordered to file an affidavit of documents. There was a dispute between him and Lennon Mazzeo as to whether a telephone account should be included. Lennon Mazzeo considered this essential; Mr Karam considered it unnecessary. The material before me does not disclose whether or not an account was in the end included.
Lennon Mazzeo received an offer of compromise from the defendant employer’s solicitors on 4 November 2009 (‘the First Offer’). Lennon Mazzeo sent the First Offer with a covering letter to Mr Karam that day. The covering letter explained the costs consequences if the First Offer was refused, and the employer subsequently obtained a better result from its point of view at the trial.
Counsel then briefed by Lennon Mazzeo, Richard McGarvie SC and Stephen McCredie, gave Mr Karam written advice dated 17 November 2009 to accept the First Offer. Mr Karam and his lawyers attended a conference on 17 November 2009 to discuss the First Offer. Mr Karam did not accept the First Offer at that time. Lennon Mazzeo further advised Mr Karam to accept the First Offer by letter dated 18 November 2009. Both the advice from counsel and the letter from Lennon Mazzeo referred to a further medical report obtained from a Dr Vaughan, dated 11 November 2009. The defendant has supplied me with a copy of that report.
On the first day of the hearing, 18 November 2009, Mr Mazzeo handed Mr Karam a copy of counsel’s advice dated 17 November 2009, a further copy of his letter of 18 November 2009, and a further memorandum from both counsel dated 18 November 2009 all of which urged Mr Karam to accept the First Offer. The advice from counsel dated 18 November 2009 warned Mr Karam that if he did not accept their advice to accept the First Offer then they would cease to act for him. Mr Karam did not accept the First Offer and both counsel ceased to act for Mr Karam in the course of 18 November 2009.
Lennon Mazzeo then engaged two other counsel to act for Mr Karam, Mr Craig Harrison SC and Mr Brent Hutchinson. They met with him in conference late on 18 November 2009. A court ordered mediation was held before an associate judge on 19 November 2009. An offer was made and not accepted by Mr Karam (‘Second Offer’). Mr Mazzeo says that the Second Offer included resolution of Mr Karam’s pending Magistrates’ Court proceeding seeking weekly payments and medical expenses for his cancer, as well as the common law claim relating to the cancer. Mr Mazzeo says that the rejection of this offer this was against the advice of all of Mr Karam’s legal advisors. Lennon Mazzeo sought leave to withdraw as Mr Karam’s solicitors that day, and that leave was granted. Mr Harrison and Mr Hutchinson also withdrew. The trial was adjourned to 30 November 2009.
Mr Karam subsequently re-engaged his former solicitors Aloe to act for him in both proceedings. In the asthma claim he was awarded a sum of damages, but ordered to pay his own costs. The damages were paid into court, subject to liens by Lennon Mazzeo and Aloe. Mr Karam was unsuccessful in the cancer claim and was ordered to pay the defendant employer’s costs of that claim. It follows that Mr Karam did not receive any payment from the two claims.
Allegations of negligence
The statement of claim alleges 16 particulars of negligence to the allegation of breach of duty of care i.e. negligence in paragraph 4. They are as follows:
(a) Failing to advise the plaintiff in writing on the date of the trial on 18 November 2009, until 16 November 2009, when the Plaintiff requested to be provided with a written advice from the Supreme Court of the hearing date.
(b) Failing to represent the Plaintiff’s asthma and psychiatric injury Common Law damages properly for the trial in the Supreme Court, by amending the Statement of Claim wrongly and against the interest of the Plaintiff’s case.
(c) Failing to make a proper Statement of Claim in relation to the cancer claim, by not including the allegations in the original cancer Statement of Claim which was filed in the Magistrates’ Court on 10 December 2008 and should be transferred to the Supreme Court to be heard together with the asthma Common Law damages in the Supreme court under s 135BA of the Act.
(d) Failing to listen to the Plaintiff’s requests to state my cancer and asthma claims in a proper way as it is required by the pleading’s rules.
(e) Failing deliberately to state the Plaintiff’s original cancer claim’s allegations for the purpose to misdirect the cancer claim to be determined on wrong legislation at the trial in the Supreme Court, as the aim of the cancer claim in the Magistrates’ Court was for weekly payments compensation and the medical expenses.
(f) Failing to prepare the cancer proceeding for the Supreme Court trial, by not introducing the relevant and beneficial documents into the court book.
(g) Failing to act with honesty when lawyer Lennon Mazzeo did not give the Plaintiff reasonable advice and accurate explanation on the compromise offer that the Defendant made.
(h) Failing to act with a professional standard when lawyer Lennon Mazzeo pressured severely the Plaintiff to sign a paper to accept the unreasonable and misleading compromise offer by the Defendant.
(i) Failing to act with a reasonable standard of competence when lawyer Lennon Mazzeo pressured the Plaintiff to provide a phone bill as part of the work expenses, in which it is well known that the phone bill for a factory worker does not relate to the work expenses.
(j) Failing to provide the Plaintiff with a progress report on a request from the Plaintiff.
(k) Failing to keep a constant professional standard when Lennon Mazzeo lawyer did not disclose to the Plaintiff a reasonable amount of his legal costs before the mediation conference on 19 November 2009.
(l) Failing to act for the best interest of the Plaintiff’s matters when lawyer Lennon Mazzeo intentionally requested unnecessary medical report after lawyer Lennon Mazzeo received a positive medical report from Professor Bernard Goldstein dated 30 October 2009.
(m) Failing to achieve what lawyer Lennon Mazzeo had confirmed to the Plaintiff at the beginning of his acting, that I have a good prospect of success in the cancer claim at the trial, when lawyer Lennon Mazzeo assessed the damages between ($355,603 and $470,000) as stated in the written advice dated 5 November 2009.
(n) Failing of lawyer Lennon Mazzeo to keep the legal costs as low as possible when he retained unnecessary new barristers, despite the Plaintiff’s disagreement and also despite the Plaintiff had not been consulted about the terms and facts of the new barrister’s appointments.
(o) Failing to maintain a professional standard when Lennon Mazzeo lawyer ceased to act in my matters on 18 and 19 November 2009, despite the lawyer had confirmed to the Plaintiff in writing on 29 October 2009 that the trial will not be delayed on 18 November 2009 and there will be no reason why the case would not proceed on 18 November 2009.
(p) Failing to comply with costs agreement between the Plaintiff and Lennon Mazzeo firm, when Lennon Mazzeo lawyer breached the paragraph 12 of the costs agreement by ceasing to act without good reason or any reasonable reason before the beginning of the trial on 30 November 2009 in the Supreme Court, which had caused a delay of my trial, despite Lennon Mazzeo’s knowledge that the Plaintiff is at imminent risk of death ad in urgent need of treatment for his cancer.
Mr Karam alleges in paragraph 5 of the statement of claim that he suffered the following loss from this negligence:
· Loss of the cancer claim due to intentional misstatement of the claim;
· Improper assessment of damages in the asthma claim due to intentional mis-preparation of the court book; and
· Distress and disappointment due to the adjournment when Lennon Mazzeo ceased unreasonably to act for him in the trial.
Mr Karam also seeks damages for ‘distress, disappointment and endangering life’ and for unspecified damages for past and future economic loss.
Lennon Mazzeo admit that as his solicitors they owed Mr Karam a duty of care, but deny the alleged negligence and the alleged loss.
Defendant’s submissions
Lennon Mazzeo submit that summary judgment should be given for them because each of the particulars of negligence, and all of the specified loss, fails for one or more of four reasons. These reasons are (by reference to the paragraph number of the particular to paragraph 4):
(i) In respect of the allegations of negligence specified in paragraphs (a), (g), (j), (k) of the particulars to paragraph 4, no loss is alleged or could be proved to have flowed;
(ii) In respect of the allegations of negligence specified in paragraphs (g), (h), (n), (o) and (p) of the particulars to paragraph 4, Mr Karam has no real prospect of success in proving the allegation;
(iii) In respect of the allegations specified in paragraphs (b), (c), (d), (e), (f), (i), (l) and (m) of the particulars to paragraph 4, and also in respect of the first two items of the claimed loss in paragraph 5, the advocates’ immunity applies;
(iv)In respect of the final item of claimed loss in paragraph 5, those heads of damage are not recoverable; and
(v) In relation to the general damages sought, although they may fall within recognised classes of recoverable damages, recovery is dependent on proof of a negligent act that caused the loss to which the immunity does not apply, and for the preceding reasons Mr Karam has no real prospect of success in proving such an act.
Discussion
Test for summary judgment
Summary judgment may be given for a party pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) when that party has ‘no real prospect of success’. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd the Court of Appeal held that this means that the question is whether the party against whom the judgment is sought has a ‘real’ as opposed to a ‘fanciful’ chance of success. The majority, Warren CJ and Nettle JA (as he then was,) stressed that the power to terminate proceedings summarily should be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried.[7]
[7]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 at [35].
Section 64 of the CPA confers a discretion on the court considering an application for summary judgment to refuse that judgment, even where the party against whom it is sought has no real prospect of success, in either of two circumstances: it is not in the interests of justice to grant summary judgment (s 64(a)); or the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).
Advocates’ immunity
Immunity of advocates from claims for negligence in the course of their advocacy has been the subject of criticism over the years, but in its most recent consideration of the principle in Attwells & anor v Jackson Lalic Lawyers Pty Ltd (‘Attwells’)[8] the High Court declined the invitation to reconsider its earlier decisions which established and affirmed the immunity, although it clarified its operation in relation to settlements.
[8][2016] HCA 16.
The immunity extends to solicitors, as well as barristers. It applies to work done in court, but also work done outside court which leads to a decision affecting the conduct of the case in court. In short, even if the work done by a solicitor in preparation for litigation is negligent he or she cannot be sued for that negligence if the work ‘is so intimately connected with the conduct of (the case) in Court that it can fairly be said to be a preliminary decision affecting the way that (case) is to be conducted when it comes to a hearing’.[9] In Attwells, the High Court affirmed this test, but held that negligent advice to accept a settlement, which was acted upon, did not attract the immunity, even though the settlement was recorded in consent orders.
[9]Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 per Mason CJ at 559-560 citing with approval an earlier decision.
The rationale of the immunity is that to allow suit for the negligent conduct of a proceeding that was judicially determined would allow collateral attack on the judicial determination itself. The High Court has held that this would offend the principle of the finality of judicial determinations.[10]
[10]The rationale is discussed and approved in Attwells at [30]-[37].
Application to this claim
Paragraph (a)
In relation to paragraph (a), the alleged failure to advise in writing of the trial date until two days before, there is no loss pleaded which on its face could have flowed from this failure, even if proved. Loss is an essential element of a negligence claim, and so this is sufficient to summarily dismiss this allegation.
Further, it is plain from Mr Karam’s own material that he well knew the trial date. He exhibits a copy of his letter of 28 October 2009 to Lennon Mazzeo as Annexure 1 to Exhibit AKL-1 to his affidavit sworn 22 July 2011. In that letter Mr Karam refers to the trial date as being 18 November 2009. He also refers to this as the trial date in Annexure 4 to that Exhibit to that affidavit, which is a copy of his letter of 12 November 2009 to Mr Mazzeo in relation to the First Offer, and recites in his affidavit of 22 July 2011 part of an earlier letter he wrote to Mr Mazzeo on 10 November 2009 in which he also refers to the trial date as being 18 November 2009.
It may be that Lennon Mazzeo did not inform Mr Karam in writing of the trial date as alleged until 16 November 2009, and it may also be that they should have done so. But in the context of a claim being prepared and listed urgently when Mr Karam in fact knew the trial date, I do not consider that he has any real prospect of success in proving any loss and so succeeding in this aspect of his claim. It follows that I will give summary judgment for the defendant in respect of this allegation.
Paragraphs (b)-(f)
I accept the submissions for Lennon Mazzeo that the advocates’ immunity applies to the allegations in paragraphs (b)-(f) inclusive. Each of those paragraphs alleges negligence in relation to how the asthma and cancer cases were conducted at trial, which is the critical connection that invokes the immunity. Paragraphs (b) and (c) relate to the pleading of the statements of claim in the asthma and cancer cases respectively. The statement of claim confines what issues may be raised at trial, and so critically determines how the case is run. Paragraph (d) also appears to allege negligence in pleading. Paragraph (e) may also assert this. In any event it relates to the conduct of the trial in relation to the cancer claim particularly in relation to whether or not the claim then in the Magistrates’ Court was included. Paragraph (f) relates to preparation of the cancer trial.
It follows that I will give summary judgment for the defendant in respect of these allegations.
Paragraphs (g) and (h)
These paragraphs relate to the advice given by Lennon Mazzeo in relation to the ‘compromise offer’. I assume that this is a reference to the First Offer. The High Court held in Attwells that advice to accept or reject an offer of compromise is not protected by the advocates’ immunity, because it does not have the necessary connection to how the case is run in court. Of course, if an offer is rejected the consequence may be that the case runs, but the necessary connection is not whether or not a case is run and requires judicial determination (because it does not settle). The necessary connection is with the manner in which the trial is run i.e. how, not whether. It follows that Lennon Mazzeo must show that Mr Karam has no real prospect of success in proving that the advice he received was negligent, and caused him loss.
Mr Karam contended in his affidavit of 22 July 2011 that there were aspects of the First Offer which were not clear.[11] If this was so, he was given the opportunity in conference with counsel to clarify those aspects. Nevertheless, I do not consider that Lennon Mazzeo has proved that Mr Karam has no real prospect of success of proving that the advice was negligent. I reach this conclusion notwithstanding that in my view the advice given by both senior and junior counsel and by Lennon Mazzeo was detailed and in relation to the risks involved, very clear. The joint advice of senior and junior counsel is also on its face plausible, and indeed it was vindicated. The cancer claim failed because the trial judge was not persuaded that Mr Karam’s myeloma was due to exposure to benzene in his workplace. This was precisely the risk to which counsel adverted.
[11]At paragraph [11].
However, to show that Mr Karam has no real prospect of success it would be necessary in my view for the underlying documents, in particular the medical reports, on which the advice was based to be in evidence, and they are not. The only medical report put into evidence by the defendant is that of Dr Vaughan, which was not exhibited to Mr Mazzeo’s affidavit but was produced at my request. This has not removed the difficulty, however, and indeed has raised further questions.
In their advice, counsel identify as the critical issue the latency period between exposure to benzene and development of myeloma. They cite Dr Vaughan’s view as being that the latency period is between 7-10 years. I am rather puzzled by this. It is not a matter I was able to raise with counsel for Lennon Mazzeo at the hearing, because the report was only provided after the hearing. I do not see this specific time scale stated in Dr Vaughan’s report. As I read the report it states the latency period for multiple myeloma to be ‘about 6-20 years’.[12] The very bottom of the range is just within the period from November 2002, which the joint advice states as the start date of Mr Karam’s exposure to benzene at his employment, to March 2008 which Dr Vaughan states was the time at which myeloma was detected, although at that stage a solitary myeloma. This may be a critical distinction. Dr Vaughan does state that he does not know when Mr Karam’s solitary myeloma progressed to multiple myeloma.
[12]At paragraph 5.0 on p 4 of letter dated 17 November 2009 from Dr Stephen Vaughan to Ms Wendy Kline of Lennon Mazzeo.
It may be that there were further discussions with Dr Vaughan which gave the period of time cited in the advice, but if so they are not deposed to. In the circumstances, I cannot exclude the possibility that the period between first exposure and development of multiple myeloma may have fallen within the latency period identified by Dr Vaughan. I would not, therefore grant summary judgment to the defendant on the basis that Mr Karam has no real prospect of success of proving the advice to be negligent.
I will, however, grant summary judgment on the basis that the plaintiff has not identified the loss that flowed from any such negligence, and I do not consider could prove any. As noted by counsel for Lennon Mazzeo at the hearing, Mr Karam would have to show at trial that but for the negligent aspect of the advice (and he has not identified with any precision in what respect it was negligent) he would have accepted it. It is plain, however, from his next allegation of negligence that his objection was to the First Offer itself. It is conceivable that in a situation where negligent advice to settle has been accepted a plaintiff may be able to show that had he or she gone to trial, he or she would have been more successful. Here, however, the advice to settle was rejected. I am unable to see how Mr Karam could show a causal link between what on his case was overly pessimistic advice to settle, that he rejected, and his ultimate loss at trial for the very reasons the advice foreshadowed.
Paragraph (h) alleges that Lennon Mazzeo pressured Mr Karam ‘severely’ to accept the First Offer. Certainly, the letters and advice to this effect are written in strong terms, and the advice was repeated, but it was so plainly in Mr Karam’s interests to consider settlement that I do not consider he has any real prospect of success in establishing any inappropriate pressure, let alone negligence, in the conduct by Lennon Mazzeo. In any event, for the same reasons as set out above in relation to paragraph (g), I do not consider that he has any real prospect of proving loss flowing from pressure to settle, even if inappropriate pressure, that he nevertheless resisted.
Paragraph (i)
Lennon Mazzeo contend that this allegation falls within the advocates’ immunity. I am not persuaded that that is correct, because I do not have in evidence the affidavit of documents in question, or any evidence as to the role it played at trial. It follows that I do not know with certainty whether or not a telephone account was, or was not, included and how, if at all, this affected the conduct of the cases at trial.
If the complaint is that the advice from Lennon Mazzeo that a telephone account must be included was negligent, then on the basis of the explanation for the necessity to do so afforded Mr Karam by letter to him dated 28 October 2009[13], I do not consider that Mr Karam has any real prospect of success in proving negligence. Further, Mr Karam has not identified any loss that flowed from the inclusion of such an account, or failure to so include. I will give summary judgment in respect of this paragraph for these reasons.
[13]Exhibit NM-3 to the affidavit of Nick Mazzeo sworn 14 June 2016.
Paragraph (j)
This paragraph alleges a failure to provide a requested ‘progress report’. It is not clear from the statement of claim to what Mr Karam refers. This may be a matter that could be cured by more particularisation, had Mr Karam attended the hearing to seek that opportunity. However, I accept the submission of Lennon Mazzeo that the allegation is more fundamentally flawed in that the statement of claim does not plead any consequence from this alleged failure, and so cannot link this allegation to any claimed loss. This is fatal because loss is an essential element of a negligence claim, and an allegation of negligence alone is insufficient.
Had Mr Karam appeared in answer to the summons, and sought the opportunity to respond to this and similar criticisms by re-pleading, then the more appropriate response to the failure to link an allegation to any consequential loss may have been to strike out the statement of claim and allow re-pleading. However, Mr Karam did not appear and did not file any answering material that discloses possible consequential loss. He pleads some particulars of loss in paragraph 5, which I will discuss shortly. On their face, they are not said to have flowed from this allegation of negligence.
Paragraph (k)
This allegation, of failure to disclose costs before the mediation on 19 November 2009, falls into the same category as the preceding one. No consequence is pleaded of the alleged failure. In other words, Mr Karam does not say what he would have done if proper disclosure had been made, or what consequence flowed from the lack of disclosure. It follows that he has not shown any loss that flowed from the alleged negligence, and the loss he does plead is not on its face said to flow from this alleged negligence.
As in respect of the preceding paragraph, had Mr Karam attended and sought the opportunity to re-plead and demonstrated that there may be some utility in that course, strike out of the statement of claim rather than summary judgment for the defendant may have been appropriate. He did not, however, seek this opportunity.
Paragraph (l)
This paragraph asserts that Lennon Mazzeo obtained an ‘unnecessary’ medical report, after obtaining a ‘positive medical report from Professor Bernard Goldstein’. The first difficulty is that it is not clear from the statement of claim to what report Mr Karam refers. The affidavit of Mr Karam sworn 22 July 2011 contrasts the report of Dr Vaughan with that of Professor Goldstein[14], and so I will assume that it is Dr Vaughan’s report to which this particular refers as ‘unnecessary’.
[14]At [7].
The second issue is that I do not have all the medical reports already obtained before me to determine if Mr Karam may be able to show at trial that Dr Vaughan’s report was unnecessary, in the light of those medical reports. In particular, I do not have before me in this application the report of Professor Goldstein. Mr Karam’s affidavit of 22 July 2011 recites in the body of the affidavit that he exhibits it, but this exhibit was no longer on the Court file. Nor do I have all the reports already obtained to which Mr Karam referred in his letter of 28 October 2009 (the letter is exhibited to that affidavit, and a copy was on the Court file); evidence as to all reports obtained by Lennon Mazzeo for the plaintiff; or even evidence as to what reports were relied on at trial. Counsel for Lennon Mazzeo was unable to assist in these respects.
However, on the evidence that is before me in this application I am satisfied that Mr Karam has no real prospect of success in showing that obtaining the report of Dr Vaughan was unnecessary. This is because, on the evidence before me as to the content of medical reports from appropriate specialists, Dr Vaughan’s was the most favourable view of the latency period i.e. the period between exposure to benzene and the diagnosis of multiple myeloma. As the joint advice of Mr McGarvie SC and Mr McCredie of counsel dated 17 November 2009, repeated in their advice of the next day, stated, it was necessary for the plaintiff to prove that it was his exposure to benzene in the workplace that caused his multiple myeloma, and thus the latency period was a critical issue on liability in the cancer claim.
Mr Karam has not put forward in this application the report of Dr Goldstein, or any other report by reason of which he may be able to show that Dr Vaughan’s report was unnecessary. The only medical reports that I could find on the Court file are reports of Dr Abdullah Wassouf, a general practitioner, and Associate Professor Wolf, a haematologist and medical oncologist. Dr Wassouf’s reports are dated 6 August 2009, 12 March 2010, and 5 May 2012. Dr Wassouf does not in those reports express any opinion about the latency period i.e. the period between exposure to benzene and development of multiple myeloma. His reports are directed to the progression of the disease. Reports and an affidavit of Associate Professor Wolf are also on the file. He deposes in his affidavit sworn 4 September 2009 that he is Mr Karam’s treating oncologist, and exhibits his report of 1 September 2009. In that report he notes that Mr Karam ‘now’ has multiple myeloma. The implication in the report is that the multiple myeloma has developed since Professor Wolf’s report of 8 August 2009 i.e. within the last month. In subsequent reports dated 16 March 2010, 1 May 2012 and 27 July 2012 Professor Wolf reports on the progress of the disease. Professor Wolf does not express a view in any of these reports as to the latency period.
In their joint advice Mr McGarvie SC and Mr McCredie of counsel cited the views of three medical experts on the latency period - Professor Wolf; a Professor Fox and the consultant oncologist Dr Vaughan. The joint advice states that Professor Wolf ‘has frankly admitted that he does not know the latency period’; and that Professor Fox ‘has opined that it is about 18-20 years’. Dr Vaughan’s view is expressed in the joint advice to be the most favourable to the plaintiff, there expressed as being 7-10 years.
Earlier in these reasons I have queried why Dr Vaughan’s opinion was expressed in these terms, when to my reading it does not correspond to the opinion expressed by Dr Vaughan in his report dated 17 November 2009. Even if it was incorrectly stated by counsel (and as noted, there may have been further discussions of which I am not aware) it was on any view the opinion most favourable to Mr Karam of the three doctors cited.
In the absence of further evidence to show that there was other medical evidence on the latency period more favourable to Mr Karam than that of Dr Vaughan, and already obtained by the time Dr Vaughan’s opinion was sought, I do not consider that Mr Kararm has any real prospect of success in showing that Dr Vaughan’s report was unnecessary. I will give summary judgment to the defendant on this particular for this reason.
For completeness, I note that counsel for Lennon Mazzeo contends that this allegation of negligence fails because it falls within the immunity. Counsel could not tell me if Dr Vaughan’s report was used at trial, and so I do not consider that the immunity is made out.
Paragraph (m)
This paragraph asserts that Lennon Mazzeo was negligent in not obtaining a result in the forecasted range $355,603 - $470,000 in the cancer claim as stated in a written advice dated 5 November 2009. I will assume that the advice to which the plaintiff refers is an advice dated 5 November 2009 from Stephen McCredie of counsel to Richard McGarvie SC and Wendy Klyne (‘the Advice’). Ms Klyne was one of the lawyers at Lennon Mazzeo then acting for Mr Karam. I reach this conclusion because Mr Karam refers to the Advice in his affidavit of 22 July 2011, and apparently exhibited it to that affidavit. As noted earlier, the file no longer has all the exhibits to that affidavit and it was counsel for Lennon Mazzeo who handed up a copy of the Advice. Although the Advice is directed to other lawyers acting for Mr Karam, and not to Mr Karam directly, it apparently came into his possession at some stage.
The Advice notes receipt of the First Offer and commences with the statement that the First Offer relates only to the common law cancer claim, not the Magistrates’ Court proceedings for statutory compensation and medical expenses for cancer, and does not relate to the asthma claim.
The second caveat in the Advice is that not all the medical evidence has yet been obtained in relation to the myeloma, and the Advice is on the assumption that the cancer claim succeeds on liability. Mr McCredie estimates the range of recoverable damages for the cancer claim (assuming it succeeded) by comparison with mesothelioma cases and concludes that the range for the cancer claim is $210,000-$350,000. He concludes that, subject to some reservations, the First Offer is within the range of possible outcomes but stresses by bolding the words that this is ‘assuming that we succeed on liability’. It is plain that the Advice was obtained to assess the quantum of the First Offer only, not whether or not it should be accepted having regard to prospects of success on liability. That advice came later, in the two joint advices written by Mr McCredie and Mr McGarvie dated 17 and 18 November 2009.
Notwithstanding that the principal purpose of the Advice seems to have been in relation to the quantum of the First Offer, which was in relation to the cancer claim, the Advice also includes an estimate of recoverable damages in the asthma claim, in the sum of $355,603. This considerably exceeds the amount that was in fact awarded. It is also exactly the lower end of the range stated by Mr Karam in this particular of negligence, although his allegation relates to the cancer claim, not the asthma claim.
It is plain from this discussion that Mr Karam has no real prospect of success in relation to this allegation of negligence as it is currently stated because the Advice simply does not give a range of recoverable damages for the cancer claim of $355,603-$470,000. It gives the lower end of this range as an estimate of damages recoverable for the asthma, not the cancer, claim. I am unable to determine how the Advice is said to have given a top of the range estimate of $470,000 for either the cancer or the asthma claim. Further, for the cancer claim it gives a range or recoverable damages below what is stated in this allegation.
If this was the only difficulty, and Mr Karam had attended and sought the opportunity to correct the allegation, then strike out may have been the more appropriate outcome than summary dismissal. It is not, however, the only difficulty and nor has Mr Karam attended to indicate that he wishes to pursue this claim.
The first fundamental difficulty is that it cannot be negligent not to obtain a result advised as likely at a time when all the evidence is not yet in, and the advice given at that time is expressed to be subject to this further evidence. In other words, no breach of the duty of care could be shown. The Advice makes it clear that the range of recoverable damages for the cancer claim is subject to success on liability, and that an assessment of prospects of success on liability awaited medical evidence.
Further, the Advice states explicitly that the First Offer does not include the claim for statutory compensation then in the Magistrates’ Court, but that the defendant employer may agree to increase the offer at mediation by including this claim. It is apparent from all of Mr Karam’s material that he had a real concern that this statutory claim also be successful. Mr Karam disputed in his affidavit of 22 July 2011[15] Mr McCredie’s statement that the First Offer did not include the Magistrates’ Court claim. I am unable to determine which of the two interpretations is correct, as the First Offer[16] is expressed to be in relation to the amended statement of claim dated 5 October 2009 in proceeding number 9113 of 2009, and I do not have that document before me. Mr Mazzeo deposes that the Second Offer, the increased offer at mediation, included the Magistrates’ Court claim. The increase in the offer is consistent with the Magistrates’ Court claim not having been included earlier, but not necessarily determinative of that fact- there may have been other reasons for the increased offer.
[15]At [11].
[16]Which is exhibited as NM-4 to the affidavit of Nick Mazzeo sworn 14 June 2016.
The second fundamental difficulty is that the result recommended in the Advice was not achieved not because of any conduct of Lennon Mazzeo or counsel, but because of Mr Karam’s own actions. It was his decision not to accept the recommendation made in the Advice and in the later advices of senior and junior counsel to accept the First Offer. Nor did he accept the later Second Offer. By that stage, Mr Karam had had the benefit not just of the Advice (on quantum) but also the advice given by both his initial senior and junior counsel on liability in the cancer claim, and the same advice from his second senior and junior counsel. He declined to accept that advice. It follows that there is no causal connection shown between the failure to achieve the result forecast in the Advice (even if the allegation was re-pleaded to correctly state what the Advice said) and any action of Lennon Mazzeo or counsel briefed by them.
For these reasons, I do not consider that the plaintiff has any real prospect of success in this allegation and will give summary dismissal in respect of it.
For completeness, I note that counsel for Lennon Mazzeo in his written submissions includes this allegation as falling within the immunity. This could also be a third fundamental difficulty, if what the allegation seeks to do is criticise the conduct of the trial. If that is what it seeks to do, then it would need further particularisation to identify in what respect the conduct of the trial is criticised, but this would be futile because the conduct of the trial would fall within the immunity.
Paragraph (n)
This allegation is that Lennon Mazzeo retained ‘unnecessary two barristers’ over the objection of the plaintiff and without consulting the plaintiff in relation to the terms and facts of the new appointments.
The evidence in this application in relation to the retention of the new counsel after Mr McGarvie and Mr McCredie withdrew is that given by Mr Mazzeo in his affidavit in support.[17] He deposes that the engagement of the new counsel was in accordance with Mr Karam’s instructions and that Mr Karam was given details of their fees initially orally and later in writing. On this evidence, Mr Karam has no real prospect of success in establishing that the retention of the new counsel was negligent. In fact, to the contrary. It is remarkable that new counsel were able to be engaged at such short notice at a critical time in the litigation- after the trial had commenced and for the purposes of the judicial mediation to be held the next day.
[17]At [24].
I note that in his affidavit sworn 22 July 2011 Mr Karam deposed that he had a consultation with the new barristers late in the afternoon of 18 November 2009, which is consistent with what Mr Mazzeo says, but that he told Lennon Mazzeo the following morning that he did not want those barristers to act for him, including at the mediation.[18] If this could be proved at trial, then the continued retention of those counsel may have been without instructions. Even if this could be said to be negligent, or otherwise a breach of the retainer of Lennon Mazzeo, Mr Karam has not pleaded any loss that flowed from the failure to follow his instructions, or sought the opportunity to re-plead to identify any such loss.
[18]At [21].
For these reasons, I will give summary judgment for Lennon Mazzeo in respect of this allegation.
Paragraphs (o) and (p)
These allegations assert that Lennon Mazzeo should not have ceased to act. On the evidence of Mr Mazzeo, it was a term of the costs agreement between Lennon Mazzeo and Mr Karam[19] that Lennon Mazzeo could cease to act if Mr Karam did not accept their ‘reasonable advice’. Mr Karam does not dispute this evidence. The question would then become whether the advice to accept the First Offer and the Second Offer was reasonable. To succeed at trial, Mr Karam would have to show it was not. To succeed in this application on the evidence, Lennon Mazzeo must show that Mr Karam has no real prospect of that success.
[19]Exhibit NM-2 to Mr Mazzeo’s affidavit in support.
In relation to the First Offer, I repeat the conclusion I drew in relation to the allegations in paragraphs (g) and (h). For the reasons there expressed, I do not consider that Lennon Mazzeo has proved that Mr Karam has no real prospect of success in proving that the advice in relation to the First Offer was negligent.
Lennon Mazzeo did not withdraw immediately after that advice was not accepted. They only withdrew after Mr Karam refused their advice and that of the new counsel to accept the Second Offer. The same reasoning applies, however. I cannot conclude that Mr Karam has no real prospect of success in establishing that that advice was negligent in the absence of all the material then before his advisors.
Nevertheless, I do consider that summary dismissal should be given in respect of these allegations. In my view these paragraphs fail not because I can be satisfied that there is no prospect of showing that the advice that was not accepted was not reasonable, but because Lennon Mazzeo were only able to withdraw by the grant of leave i.e. by judicial act. In the ordinary course, Mr Karam would have had the opportunity to oppose the grant of that leave. In his affidavit of 22 July 2011 he acknowledged that he had that opportunity, although he says the judge did not allow him to give the real basis for his objections.[20] To allow Mr Karam now to impugn the withdrawal of Lennon Mazzeo would be to allow him to impugn the judge’s decision to grant leave. In my view, the immunity prevents that challenge. For that reason, I will grant summary judgment for Lennon Mazzeo in respect of the allegations relating to them ceasing to act.
[20]At [23]. It may be that the trial judge was concerned not to hear the detail of any offers made.
Particulars of loss and damage
I accept the submission of counsel for Lennon Mazzeo that the first two particulars given to paragraph 5, loss of the cancer claim and improper assessment of the asthma damages, are necessarily causally related to the conduct of the trial and so are immune from suit by reason of the advocates’ immunity. I would add that as for most of the trial the plaintiff’s solicitors were Aloe, not Lennon Mazzeo, there could also be very considerable problems in proving a causal link between the actions of Lennon Mazzeo and the conduct of the trial and its outcome, even if such an examination was not protected by the advocates’ immunity.
The third particular seeks damages for ‘distress and disappointment’ arising from the adjournment of the trial following Lennon Mazzeo ceasing to act. As counsel for Lennon Mazzeo correctly submits, damages for distress and disappointment are not generally recoverable unless recognised psychiatric illness has been caused.[21] Mr Karam does not allege that his disappointment and distress at the adjournment of the trial caused any psychiatric illness.
[21]Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [7], [44], [193] adopted with approval in Slaveska v State of Victoria and ors [2015] VSCA 140 at [87]-[88].
I accept the submission of counsel for Lennon Mazzeo in relation to the recognised classes of damages that are claimed that they are dependent on proof of a negligent act that caused such damage, and for the preceding reasons Mr Karam has no real prospect of success in proving such an act.
Discretion
I have turned my mind to whether the discretion conferred by s 64 of the CPA should be invoked, so as to refuse summary judgment for Lennon Mazzeo notwithstanding that on the evidence before me Mr Karam has no real prospect of success.
Mr Karam has not attended to ask that this discretion be invoked, or filed any material which would justify it being invoked. The material he has filed sets out his objections to the procedure by which he was informed that the application would be made, not to the nature of the underlying dispute. It follows that paragraph (b) of s 64 is not shown to be applicable.
I have considered whether Mr Karam’s objections to the procedure by which he was informed that the application would be made mean that paragraph (a) of s 64 applies i.e. it would not be in the interests of justice to give summary judgment for the defendant. In my view those objections do not justify refusal of summary judgment. There were undoubtedly administrative errors that occasioned or attended the listing of two directions hearing on the one day before two different judicial officers, both of which were intended to deal with the same proceeding, although this was not plain by the proceeding name or number of the proceeding listed before J Forrest J. Those errors were unfortunate, they caused some confusion, and may also have occasioned inconvenience to Mr Karam. But they were procedural only. They did not prejudice the fair hearing of the summons. If Mr Karam wished to oppose the summons on its merits, or say that it should not be heard at all or by me, then he had the opportunity to attend at the hearing and put his submissions. He did not attend, but nevertheless I have considered the evidence that he did file, in this and earlier applications. I do not consider that the interests of justice require that the proceeding continue, and, indeed, consider that they require that summary judgment for Lennon Mazzeo now be given.
Conclusion
I will give judgment for the defendant and dismiss the proceeding. In the ordinary course an order that the plaintiff pay the defendant’s costs would follow. Surprisingly, the costs order sought in the summons is that ‘the Defendants pay the Plaintiff’s costs of the proceeding including all reserved costs’ i.e. the successful defendant volunteers to pay the unsuccessful plaintiff’s costs. In all probability this is an error, but I will need to hear the parties in relation to it.
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