O'DRISCOLL v Friedman Lurie Singh (a firm)
[2010] WADC 51
•19 APRIL 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: O'DRISCOLL -v- FRIEDMAN LURIE SINGH (a firm) & ANOR [2010] WADC 51
CORAM: REGISTRAR KINGSLEY
HEARD: 5 FEBRUARY 2010
DELIVERED : 19 APRIL 2010
FILE NO/S: CIV 1710 of 2007
BETWEEN: PETER O'DRISCOLL
Plaintiff
AND
FRIEDMAN LURIE SINGH (a firm)
DefendantDAVID RUTLEY CLYNE
Third Party
Catchwords:
Practice - Application for leave to administer interrogatories - Turns on own facts
Legislation:
Nil
Result:
Application allowed in part
Representation:
Counsel:
Plaintiff: No appearance
Defendant: Mr S Popperwell
Third Party : Ms G L Stabler
Solicitors:
Plaintiff: Not applicable
Defendant: Pynt & Partners
Third Party : DLA Phillips Fox
Case(s) referred to in judgment(s):
Carmody v Priestley & Morris Perth Pty Ltd (2005) 30 WAR 318
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
REGISTRAR KINGSLEY:
Background
The plaintiff sues his former solicitors in negligence and contract. The former solicitors, Friedman Lurie Singh ("FLS") in turn have brought third party proceedings against a barrister, David Clyne ("DC").
It is common ground that the plaintiff brought a claim in negligence against the company J Ray McDermott SA ("McDermott") for damages for personal injuries suffered by him in a work place accident alleged to have occurred on 28 March 1995.
At a listing conference in May 2001, the action was listed for a trial on six preliminary issues. The trial was heard on 31 July 2001.
The preliminary issues were:
1.what was the proper law of the employment contract of the plaintiff relating to the issue of liability – was it the law of the Republic of Singapore, the State of Western Australia, the Republic of Indonesia or the Republic of Panama;
2.was the proper law of the employment contract relating to quantum of damages the law of the Republic of Singapore, the State of Western Australia, the Republic of Indonesia or the Republic of Panama;
3.in relation to the plaintiff's claim of negligence was the applicable law on liability the law of the Republic of Singapore, the State of Western Australia, the Republic of Indonesia or the Republic of Panama;
4.in relation to the negligence claim was the applicable law on quantum the law of the Republic of Singapore, the State of Western Australia, the Republic of Indonesia or the Republic of Panama;
5.did the plaintiff's claim arise out of circumstances that if they had occurred in Western Australia a cause of action would have arisen entitling the plaintiff to enforce against McDermott a civil liability;
6.does any part (and if so which part) of Div 2 of Pt IV of the Workers Compensation and Rehabilitation Act 1981 ("WCR Act") apply to the plaintiff's claim.
On 23 August 2001 (the August 2001 decision) Judge Nisbet concluded in respect of the preliminary issues that:
•the proper law of the employment contract relating to liability and quantum was the law of the Republic of Singapore;
•to the extent that the plaintiff's claim was based on negligence the applicable law on the issue of quantum is the law of the State of Western Australia;
•to the extent the plaintiff's claim is based on negligence Judge Nisbet was unable to determine the applicable law on liability, nor was the Judge able to determine whether the plaintiff's claim arose out of circumstances that if they had occurred in Western Australia a cause of action would have arisen entitling the plaintiff to enforce against McDermott;
•the provisions of Div 2 of Pt IV of the WCR Act applied to the plaintiff's claims.
Furthermore, by the August 2001 decision, Judge Nisbet found that the employment contract was entered into in Singapore.
The pleading
FLS plead that on or about 27 August 2001 DC accepted instructions to review the August 2001 decision and advise the plaintiff on future conduct of the plaintiff's personal injury action, including advice whether it was appropriate to abandon the plaintiff's claim against McDermott for negligence. DC denies those allegations and says, although he received a letter dated 27 August 2001 from FLS, that letter did not request DC to review the August 2001 decision. DC specifically denies that a facsimile from FLS dated 2 November 2001 requested DC to review the August 2001 decision.
FLS plead a meeting between Sukwant Singh of FLS and DC on 16 November 2001 at which meeting FLS plead Singh and DC considered the August 2001 decision. Save to admit that meeting occurred, DC does not admit that the August 2001 decision was considered.
FLS plead that in January DC accepted a brief to represent the plaintiff at a without prejudice informal conference. Whilst not admitting the specific dates DC admits accepting that brief.
FLS go on to plead that at the conclusion of the informal conference, DC orally advised FLS that having regard to the August 2001 decision it was appropriate for the plaintiff to amend his statement of claim in the personal injury action to abandon any negligence action against McDermott. DC does not admit that allegation.
FLS plead that, acting on the advice of DC, the plaintiff instructed FLS to file and serve an amended statement of claim abandoning his claim against McDermott on the negligence grounds. DC does not admit that allegation.
FLS goes on to plead that DC owed the plaintiff a duty to exercise the care and skill of a reasonably competent and experienced barrister in relation to all matters concerning the personal injury action on which DC was briefed or instructed by FLS. Without derogating from the denials and admissions pleaded in his defence, DC admits this allegation.
Interrogatories
Against that background and pleading, FLS brought a summons dated 4 December 2009 seeking leave to administer interrogatories for answer by DC. The minute of proposed interrogatories attached to the chamber summons number 4, although three of the interrogatories have sub-paragraphs. In the defendant's submissions the only interrogatories pursued were interrogatories 1, 3 and 4.
Interrogatory 1 is directed to the August 2001 decision and inquires whether DC read the August 2001 decision, formed any views as to the correctness of the decision and whether DC formed an opinion that the 2001 decision ought to be appealed. The interrogatory inquires whether DC formed an opinion as to the merits of the plaintiff's claim for damages against McDermott.
Counsel for FLS submits the claim by FLS is that, whilst par 14 of DC's defence is drafted on the basis DC was not instructed to advise on the merits of an appeal, in all the circumstances DC came under a duty to give advice on the appeal. Counsel for FLS cites Carmody v Priestley & Morris Perth Pty Ltd (2005) 30 WAR 318 where Hasluck J at [98] comments that the scope of the duty of care and the nature of the standard of care will depend on the circumstances, however the contract of retainer will be an important indicium of the nature of the relationship which gives rise to the common law duty of care. But the contract of retainer will not chart exclusively the parameters of that duty because there are authorities that have held, in some cases, the duty of care may require the taking of positive steps beyond the specifically agreed professional task or function where the steps in question are necessary to avoid a real and foreseeable risk of economic loss sustained by the client.
Counsel for DC objects to answering interrogatory 1 and its sub‑paragraphs, on the basis the interrogatory did not go to a matter in question as that matter has been admitted on the pleadings or is irrelevant. Having regard to the law as expressed in Carmody's (supra) case and bearing in mind the non-admissions in relation to the August 2001 decision in my opinion interrogatory 1 is directly relevant to the breach of duty.
Interrogatory 3 requires DC to look at the plaintiff's amended statement of claim filed in the personal injury action on 15 August 2002 and enquires whether, between 23 August 2001 and 15 August 2002, DC considered the document and communicated with any person or persons about the content of the document. The interrogatory inquires whether DC formed an opinion as to the merits of the plaintiff's claim for damages against McDermott. Counsel for DC objects to answering the interrogatory on the ground it is irrelevant to matters in questions and appears to be fishing.
In my opinion interrogatory 3 need not be answered. It is admitted that the plaintiff amended its statement of claim and that the amendment occurred between 25 February 2002 and 15 August 2002. There was no plea that the proposed amended statement of claim was sent to DC to review, consider or settle.
Interrogatory 4 inquires whether DC, prior to 15 August 2002, read the judgments of the High Court of Australia in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 or either of them.
DC's counsel submits that interrogatory 4 is irrelevant to matters in question and, in any event is oppressive.
Counsel for FLS submits that from 1991 to June 2000 limitation provisions were governed by the law of the forum (McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1. In June 2000 the High Court reviewed the state of the law and determined that limitation provisions were substantive and governed by the law to which the court is directed by its choice of law rules: John Pfeiffer (supra) and Regie Nationale (supra).
The pleaded case of FLS is that DC advised FLS that it was appropriate for the plaintiff to amend his statement of claim to abandon any claim against McDermott on the ground the incident was caused by McDermott's negligence. This allegation is not admitted. Counsel for FLS submits that having regard to Carmody's case it is relevant to the breach of duty as to whether DC had read these cases. Having regard to the expression of the duty of care in Carmody's case I am of the opinion that interrogatory 4 is required to be answered.
That being the case I order that interrogatory 1 and 4 be answered within 14 days.
I will hear the parties on the issue of costs, unless, of course, the parties in the meantime agree to the costs.
Exculpation
Delivery of my reasons was held over upon request of the parties.
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