NT Pubco Pty Ltd & Anor v Strazdins & Ors; Strazdins & Anor v Cowell Clarke & Ors [2014] NTSC 8
PARTIES:NT PUBCO PTY LTD (ACN: 109 250 982)
AND
DOWLING, Terence George
v
STRAZDINS, Andrejs Janis
AND
COOPER, Nicholas David
AND
COWELL CLARKE
AND
DART, Graham
AND
MACNAMARA QC, Phillip
AND BETWEEN: STRAZDINS, Andrejs Janis
AND
COOPER, Nicholas David
v
COWELL CLARKE
AND
DOWLING, Terence George
AND
NT PUBCO PTY LTD (ACN: 109 250 982)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:95 of 2011 (21127140) and
35 of 2013 (21316264)
DELIVERED: 14 March 2014
HEARING DATES: 29 October 2013
JUDGMENT OF: HILEY J
CATCHWORDS:
COURTS – Practice and Procedure – Application for summary judgment or strike out – Whether proceedings clearly untenable – Supreme Court Rules 1987 (NT) r 23.01, 23.02 and 23.03
LEGAL PRACTITIONERS – Immunity from suit – Application of principle in D’Orta-Ekenaike v Victoria Legal Aid – Scope of advocate’s immunity – Whether alleged conduct led to a decision affecting the conduct of the case in court
LEGAL PRACTITIONERS – Immunity from suit – Scope of advocate’s immunity – Relevance of the need for finality
LEGAL PRACTITIONERS – Immunity from suit – Scope of advocate’s immunity – Immunity of solicitor
LEGAL PRACTITIONERS – Immunity from suit – Scope of advocate’s immunity – Extent to which immunity covers omissions such as failures to advise
LEGAL PRACTITIONERS – Immunity from suit – Scope of advocate’s immunity – Importance of considering the conduct alleged – Application to other causes of action such as breach of fiduciary duties
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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NT Pubco Pty Ltd v Strazdins [2014] NTSC 8
Case
[2014] NTSC 8
Decision Date
CaseChat Overview and Summary
In the case of NT Pubco Pty Ltd v Strazdins, the plaintiffs were seeking damages against the lawyer defendants for alleged breaches of duty in failing to achieve reinstatement of a lease, which they argued led to losses. The defendants sought summary judgment or to have the statements of claim struck out under the Supreme Court Rules 1987 (NT). The central legal issues were whether the plaintiffs' claims were plainly unsustainable and whether the lawyers were entitled to immunity from the plaintiffs' allegations.
The court considered whether the plaintiffs' claims were so clearly untenable that they could not possibly succeed. It noted that the power for summary determination should be exercised with caution, and the applicant bears a heavy burden to establish the unsustainability of the claims. The court held that for the purposes of these applications, it would assume the allegations in the statements of claim would be made out in favour of the plaintiffs. The court examined the scope of advocate's immunity and whether the alleged conduct of the lawyers led to a decision affecting the conduct of the case in court. The court found that the claims against the lawyers were not plainly unsustainable, and therefore the applications for summary judgment or striking out the statements of claim were dismissed.
The court concluded that the plaintiffs' claims against the lawyer defendants were not clearly untenable and thus the applications for summary judgment or striking out were dismissed. The case proceeded to trial on the merits.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Consequently the plaintiffs in these two matters contend that the condition in clause 6.3.1 was not fulfilled, the DOCA failed (or its objects could not be achieved) and they thereby suffered losses. They are suing the lawyer defendants for those losses which they say resulted from the breaches of duty on the part of the lawyers in failing to achieve reinstatement of the Lease.[10]Summary judgment / strike out The lawyer defendants each applied by Summons for orders that judgment be entered for them against the plaintiffs, alternatively that the statements of claim be struck out as against them. They rely upon Rules 23.01 or 23.03 of the Supreme Court Rules 1987 (NT) in relation to the former and Rule 23.02 in relation to striking out the statements of claim or parts thereof.[11] Rule 23.02 enables the Court to order that Courts have been reluctant to allow summary determinations; rather, a party is ordinarily entitled to have its case placed before the court in the ‘ordinary way’.[12] The power under Order 23 is one that should be exercised by a court with great caution; with the applicant bearing a heavy burden.[13] It has been held in this jurisdiction that Rule 23.03 will only be enlivened in circumstances where the plaintiff’s case is so clearly untenable that it could not possibly succeed.[14] The lawyer defendants accept that in order to succeed under these provisions for summary relief they must establish that the claims against them are plainly unsustainable, in the sense described in Northern Territory authorities such as Nibbs v Australian Broadcasting Corporation,[15] and RTA Pty Ltd v Brinko Pty Ltd.[16] These authorities are based upon the principles well established in and following Dey v Victorian Railways Commissioners[17] and General Steel Industries Inc v Commissioner for Railways (NSW), where Barwick CJ said, at [10]:“…in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.” [18] In Spencer v The Commonwealth Hayne, Crennan, Kiefel and Bell JJ, after considering General Steel and the test applied in other summary determination cases, said:“…the test to be applied was expressed in many ways, but in the end amounted to different ways of saying ‘that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’ As the formulation shows, the test to be applied was one of demonstrated certainty of outcome.”[19] Consistent with the authorities, for the purpose of these applications, the Court proceeds on the assumption that the allegations in the statements of claim will be made out in favour of the plaintiffs.
Ratio Decidendi
Legal Principle Established
The DOCA provided for obligations on the part of NT Pubco which, pursuant to clause 6.3.1, were conditional upon the Administrators obtaining an order for equitable relief or relief pursuant to s 444F of the Corporations Act 2001 (Cth) (the Corporations Act) that the Lease be reinstated and that BCC’s notice of termination of lease of 12 June 2008 be withdrawn, or that BCC grant a new lease to DNPW on terms acceptable to NT Pubco. On 17 October 2008 the FC Applicants commenced their application in the Federal Court by filing an originating process (the FC Application) seeking orders including:“1.An order pursuant to s 444 of the Corporations Act 2001 that the Respondent not take possession of the whole of the [Premises] or otherwise take action to recover such property.2.In the alternative an order that [DNPW] be granted relief from forfeiture with respect to all and any breaches of the [Lease] … pursuant to the provisions of s 138 of the Law of Property Act (NT).3.In the further alternative [DNPW] be granted relief from forfeiture in equity with respect to all and any breaches of the [Lease].”[5] On 24 November 2008 the FC Applicants filed Points of Claim in which they sought orders under s 444F of the Corporations Act. The Points of Claim also included:“22. In the alternative [DNPW] seeks relief from forfeiture pursuant to the provisions of s 138 of the Law of Property Act (NT).”No relief of the kind claimed in paragraph 3 of the FC Application was included in the Points of Claim. The FC Applicants abandoned the claim for statutory relief against forfeiture (ie relief pursuant to s 138 LPA) in their written submissions and at trial,[6] which occurred on 6 February 2009. The Court was reconvened on 25 May 2009 and Lander J raised a number of matters, one of which was the fact that there was no pleading seeking relief from forfeiture. His Honour invited the FC Applicants to provide the Court and the respondent (BCC) with a copy of any proposed amended points of claim and written submissions in support of any application to amend the Points of Claim.[7] The application to amend was heard on 5 June 2009. His Honour dismissed that application and provided detailed reasons for doing so in his Reasons for Decision of 9 July 2009.[8] The FC Applicants succeeded in obtaining the primary relief which they had sought, namely the order under s 444F preventing BCC from taking possession or otherwise recovering certain property under the Lease during the operation of the order. However, the orders did not include orders whereby the Lease was to be reinstated and the notice of termination be withdrawn. In the course of his reasons, Lander J stated that while the practical effect of an order under s 444F may be similar to relief against forfeiture, it did not operate to reinstate the Lease.[9] Consequently the plaintiffs in these two matters contend that the condition in clause 6.3.1 was not fulfilled, the DOCA failed (or its objects could not be achieved) and they thereby suffered losses. They are suing the lawyer defendants for those losses which they say resulted from the breaches of duty on the part of the lawyers in failing to achieve reinstatement of the Lease.[10]Summary judgment / strike out