Norris v Pedder (No 2)
[2014] TASSC 29
•30 May 2014
[2014] TASSC 29
COURT: SUPREME COURT OF TASMANIA
CITATION: Norris v Pedder (No 2) [2014] TASSC 29
PARTIES: NORRIS, Robert James
v
PEDDER, John
MOORE, Francis trading as Archer Bushby
FILE NO: 105/2011
JUDGMENT
APPEALED FROM: Norris v Pedder [2014] TASSC 10
DELIVERED ON: 30 May 2014
DELIVERED AT: Hobart
HEARING DATE: 19 May 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Amendments not obviously futile.
Supreme Court Rules 2000 (Tas), r427.
Horton v Jones (No 2) (1939) 39 SR(NSW) 305; Commissioner for Railways v Bilewicz (1962) 80 WN(NSW) 790; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26, followed.
Aust Dig Procedure [276]
REPRESENTATION:
Counsel:
Appellant/Plaintiff: T D Cox
Respondents/Defendants: S B McElwaine SC
Solicitors:
Appellant/Plaintiff: Slater & Gordon
Respondents/Defendants: Shaun McElwaine + Associates
Judgment Number: [2014] TASSC 29
Number of paragraphs: 19
Serial No 29/2014
File No 105/2011
ROBERT JAMES NORRIS v JOHN PEDDER and FRANCIS MOORE
trading as ARCHER BUSHBY (No 2)
REASONS FOR JUDGMENT BLOW CJ
30 May 2014
This is an appeal from an order of Holt AsJ granting the respondents leave to amend their defence so as to rely on the proportionate liability provisions of the Civil Liability Act 2002: Norris v Pedder [2014] TASSC 10.
The appellant, Robert Norris, is the plaintiff in an action for damages against two solicitors – John Pedder, the first defendant, and his employer Francis Moore, the second defendant, who is the proprietor of a legal practice named Archer Bushby. The appellant was injured in a motor vehicle accident on 4 November 2004. The limitation period for bringing an action for damages in respect of his injuries was a period of three years from that date: Limitation Act 1974, s5(1). He did not bring an action for damages within that period. On 25 August 2008, he commenced such an action against a defendant who was alleged to have driven a vehicle that collided with him. An application for an extension of time under s5(4) of the Limitation Act was filed on 5 March 2009, but that application was dismissed by Crawford CJ: Norris v McGeachy [2009] TASSC 10. An appeal to the Full Court was unsuccessful: Norris v McGeachy [2010] TASFC 4. In 2011 the appellant brought this action against the respondents, his former solicitors, claiming damages for economic loss as a result of him losing the chance of pursuing a claim for damages in respect of the injuries that he suffered as a result of the 2004 accident. The respondents are defending that action.
The application to amend their defence so as to rely on the proportionate liability provisions of the Civil Liability Act was made in November 2013 and, as I have said, subsequently granted. The appellant contends that the learned associate judge should not have granted the application because a proportionate liability defence could not possibly succeed. The power to allow an amendment is conferred by r427 of the Supreme Court Rules 2000. That rule does not fetter the discretion to amend. It is well established than an amendment to a pleading should not be allowed if it would obviously be futile: Horton v Jones (No 2) (1939) 39 SR(NSW) 305 at 310; Commissioner for Railways v Bilewicz (1962) 80 WN(NSW) 790 at 792; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36.
By the amendment in question, the respondents have pleaded that a legal practitioner corporation named Brian Hilliard Pty and a legal practitioner named Lina Howroyd, employed by that corporation, were concurrent wrongdoers. It is pleaded that Brian Hilliard Pty acted for the appellant in respect of the application to extend time; that Lina Howroyd was the legal practitioner responsible for giving the appellant advice in respect of that application; that they were negligent in failing to take various steps in relation to that application; that that application failed as a result; and that their omissions caused the damage or loss which is the subject of the present action. As to the particulars of their alleged omissions, it is pleaded that they were negligent in that they:
"(a)failed to give any or any adequate advice to the plaintiff as to the necessity for him to explain, satisfactorily, the passage of time which elapsed between 4 November 2005 and August 2008 and as to why he did not, within that period, commence a proceeding within time or make an application to extend time in a timely way;
(b)failed to take any or any adequate instructions from the plaintiff as to whether he had an explanation for the period of delay between 4 November 2005 and August 2008;
(c)failed to include any or any satisfactory evidentiary material in any of the plaintiff's affidavits filed in support of his application to extend time, as to the period of delay between 4 November 2005 and August 2008;
(d)failed to advise the plaintiff of his need to provide an explanation in his affidavits as to the period of delay between 25 August 2008 and 5 March 2009;
(e)failed to include in any affidavit filed and served by the plaintiff in his application to extend time any or any adequate explanation as to the period of delay between 25 August 2008 and 5 March 2009."
The appellant contends that the amending of the defence to raise a proportionate liability defence was obviously futile. He contends that on two bases:
· By virtue of s43A(1)(a) of the Civil Liability Act, the proportionate liability provisions of that Act do not apply to "any claim arising out of personal injury". The appellant contends that his present claim is a "claim arising out of personal injury", even though it is a claim for damages for loss of a chance, as distinct from a claim for damages for his injuries.
· He contends that Brian Hilliard Pty and Mrs Howroyd were and are immune from suit because of the connection between their work and his action for damages for personal injuries.
Neither of these contentions is the subject of any of the grounds of appeal in the notice of appeal filed by the appellant. He has applied to amend his notice of appeal so as to substitute grounds that advance these contentions. That application is opposed. With the consent of counsel, I heard the application to amend the notice of appeal together with the appeal itself, with the proposed new grounds, and only those grounds, being fully argued.
A "claim arising out of personal injury"?
The proportionate liability provisions of the Civil Liability Act are contained in Part 9A of that Act. Section 43A(1) limits the categories of claims to which that Part applies. It reads as follows:
"(1) This Part applies to the following claims ('apportionable claims'):
(a)a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care (but not including any claim arising out of personal injury);
(b)a claim for economic loss or damage to property in an action for damages under the Australian Consumer Law (Tasmania) for a contravention of section 236 of that Act."
The contentions of the appellant as to the inapplicability of Part 9A can be summarised as follows:
· A claim against lawyers for damages for economic loss in respect of the loss of a chance of bringing a successful action for damages for personal injuries amounts to a "claim arising out of personal injury".
· That interpretation accords with the ordinary literal grammatical meaning of the relevant words in s43A(1).
· If Parliament had intended to limit the exclusion provided for at the end of s43A(1)(a) to claims for damages for personal injury, it could have used specific words to that effect.
· The intention or purpose of Part 9A was to reform the law in relation to claims having no connection with personal injuries, particularly claims in building or construction disputes.
· A wide interpretation of the words "but not including any claim arising out of personal injury" would be consistent with the presumption that legislation is not intended to interfere with common law rights.
The contentions of the respondents as to this point can be summarised as follows:
· The exemption created by s43A(1)(a) in relation to "any claim arising out of personal injury" applies only to the economic loss component in an action for damages for personal injuries, and not to a professional negligence claim relating to the loss of a chance to claim damages for personal injuries.
· There is no reason why claims against lawyers for damages for economic loss should be exempt from the proportionate liability provisions of the Act when they relate to alleged breaches of duty in personal injuries work when there is no such exemption in relation to other work.
· It is at least arguable that the proportionate liability provisions of the Civil Liability Act apply. The amendment was therefore not obviously futile. The point should be determined at trial if it needs to be determined at all, rather than on an application to amend the pleading.
· The action is ready for trial. That is a factor that weighed in favour of allowing the amendment and letting the point be determined at trial if necessary.
The point as to the scope of the exemption created by the final words of s43A(1)(a) is a novel one. It is therefore more appropriate for that point to be determined by a trial judge, rather than by an associate judge in the context of an application to amend a pleading. In this case, there is no need for findings of fact to be made in order for the question of law to be defined with precision. Nevertheless, it is still more appropriate for the point to be determined by a trial judge. Although I consider that the appellant's arguments in relation to this point have much to commend them, the critical question is whether the amendment was "obviously futile": Horton v Jones (No 2) (above). In my view it cannot be said that the respondents' arguments as to the point are without merit. It follows that the proposed ground of appeal relating to s43A(1)(a) should fail.
Solicitors' immunity from suit
There is a common law rule that a solicitor is not liable to his or her client for negligence in the conduct of a case in court, nor for work out of court which leads to a decision affecting the conduct of a case in court: Giannarelli v Wraith (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. The appellant contends that, if Brian Hilliard Pty and/or Mrs Howroyd were negligent as alleged, their negligence is within the scope of the common law immunity from suit.
The respondents' contentions as to the issue of immunity from suit can be summarised as follows:
· The allegations of negligence on the part of Brian Hilliard Pty and Mrs Howroyd all relate to alleged omissions in the course of work done out of court, and not to any decision affecting the conduct of the appellant's personal injuries case. Any such negligence therefore falls outside the scope of the common law immunity.
· The immunity point is at least arguable. It was therefore appropriate for the defence to be amended so that the point could be determined at trial.
One of the principal reasons for the common law immunities of barristers and solicitors to claims for negligence in relation to court cases is the public policy requirement for finality in litigation. The impugning of judicial decisions by means of negligence claims is not permitted so that finality and respect for the judicial system are preserved.
These principles were considered in Giannarelli v Wraith (above). In that case at 558, Mason CJ, with whom Brennan J agreed, said:
"The second aspect of public policy that calls for attention is the impact on the administration of justice of allowing court decisions to become the subject of collateral attack by means of actions against counsel for in-court negligence. Exposure of counsel to liability for such negligence would unquestionably encourage litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation. That would be the central issue for decision in secondary litigation of this kind. If the plaintiff were to succeed, the resolution of this issue by a different court and on materials which might well differ from those presented in the initial litigation, due to lapse of time or other reasons, would undermine the status of the initial decision. Yet an appeal against that decision might not succeed with the result that it would stand, though its status would be tarnished by the outcome of the collateral proceedings."
Similar comments were made by Wilson J at 573 – 574, and by Dawson J at 594 – 595. In D'Orta-Ekenaike v Victoria Legal Aid (above), similar statements of principle were made by Gleeson CJ, Gummow, Hayne and Heydon JJ at [45] and by McHugh J at [144] and [166].
However the immunity of solicitors does not extend to all work relating to personal injury claims. The immunity applies only to work done in court and "work done out of court which leads to a decision affecting the conduct of the case in court": Giannarelli at 560 per Mason CJ; D'Orta at [86] per Gleeson CJ, Gummow, Hayne and Heydon JJ. As Beazley JA (as she then was) said in Donnellan v Woodland [2012] NSWCA 433 at [219]:
"… whether the immunity applies involves an examination of the found negligence and the determination of the question whether that conduct led to a decision affecting the conduct of the case in court."
The particulars of the alleged negligence all relate to omissions in relation to the appellant's unsuccessful application for an extension of time. It is at least arguable that none of those omissions, if they occurred, had the requisite connection with the conduct of that application in court. The decision dismissing that application was not one by which a judge determined any question of fact or law in relation to the appellant's rights. It involved the exercise of a discretion. There is no reason to think that an action for negligence against Brian Hilliard Pty or Mrs Howroyd based on the particulars now pleaded might involve any suggestion that the order dismissing the application was not the most appropriate order for Crawford CJ to have made on the evidence before him.
It follows that it is at least arguable that Brian Hilliard Pty and Mrs Howroyd would have no immunity from suit; that the principle of immunity from suit does not make the amendment obviously futile; and that it was rightly allowed.
Conclusion
The original grounds of appeal were all abandoned. The proposed new grounds of appeal cannot succeed. The appeal must therefore fail. There is no need for me to consider whether to grant leave to amend the grounds of appeal. The appeal is dismissed.
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