Oakley Thompson and Co Pty Ltd v Owens
[2015] VCC 203
•4 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
BANKING AND FINANCE LIST
Case No. CI-13-04066
| OAKLEY THOMPSON & CO PTY LTD (ABN 50 092 053 239) | Plaintiff |
| v | |
| SUZANN JANET OWENS | Defendant |
| -and- | |
| SUZANN JANET OWENS | Plaintiff by Counterclaim |
| v | |
| OAKLEY THOMPSON & CO PTY LTD (ABN 50 092 053 239) | Defendant by Counterclaim |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 19 February 2015 | |
DATE OF RULING: | 4 March 2015 | |
CASE MAY BE CITED AS: | Oakley Thompson & Co Pty Ltd v Owens | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 203 | |
RULING
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Subject: COMMERCIAL LAW
Catchwords: Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 – Whether no real prospect of success - the advocates’ immunity principle
Legislation Cited: County Court Civil Procedure Rules 2008, Civil Procedure Act 2010, Legal Profession Regulations 2005, Competition and Consumer Act 2010, Australian Consumer Law and Fair Trading Act 2012; Supreme Court (General Civil Procedure) Rules 2005
Cases Cited:Owens v Galvin [2013] VCC 22; Owens v Galvin [2014] VSCA 33; Giannarelli v Wraith (1998) 165 CLR 543; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; Francis v Bunnett [2007] VSC 527; Philip Walton (trading as Pitcher Walton and Co) v Efato Pty Ltd [2008] NSWCA 86; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VCSA 158
Judgment: Application for summary judgment for the plaintiff and the defendant by counterclaim granted.
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APPEARANCES: | Counsel | Solicitors |
| For Oakley Thompson & Co Pty Ltd | Mr S Senathirajah | Oakley Thompson & Co Pty Ltd |
| For Ms Owens | Self-represented | Self-represented |
HER HONOUR:
Introduction
1 The plaintiff, Oakley Thompson & Co Pty Ltd, is a corporate entity. Ms Owens is a solicitor who no longer holds a practising certificate. The plaintiff previously acted for Ms Owens in proceedings brought in the County Court against barrister, Michael Galvin. Ms Owens sued Mr Galvin for negligence or breach of retainer alleging that when he acted for her in 2005 he failed to adequately advise her on options to end her bankruptcy. Ms Owens was unsuccessful in the proceeding against Mr Galvin. Relevantly, at first instance, her Honour, Judge Cohen was not satisfied that:[1]
· Mr Galvin’s duty of care to Ms Owens included the need to advise her of the option of a second composition proposal or of approaching financiers directly to raise funds to pay out the bankruptcy;
· even if Ms Owens had been advised by Mr Galvin of the options not advised, she was unlikely to have taken either option in the short term.
[1]Owensv Galvin [2013] VCC 22, [100]
2 On appeal, the Court of Appeal found no error in the trial judge’s conclusions in respect to duty, breach and causation and upheld her Honour’s decision.[2]
[2]Owensv Galvin [2014] VSCA 33 [67]
3 By Writ and Statement of Claim filed on 8 August 2013 the plaintiff sought possession of property at 78 Wattle Road Hawthorn (the property), of which, at the time, Ms Owens was the registered proprietor. The plaintiff alleged that Ms Owens had defaulted in response to a demand to pay for legal services commencing from 8 March 2011, the payment of which had been secured by a registered mortgage of land dated 5 December 2012.
4 An amended defence and counterclaim filed on 13 August 2014 was prepared by Ms Owens. The defence failed to disclose a defence. The counterclaim, however, alleged that the former solicitors, the defendant by counterclaim, had been guilty of negligence in the conduct of the proceeding brought against Mr Galvin.
5 In a reply and defence to counterclaim dated 12 September 2014, the plaintiff joined issue with Ms Owens on the amended defence. As to the counterclaim, the defendant by counterclaim essentially argued that, as drawn, the pleading was embarrassing and ought be struck out.
6 Under cover of the objections made and having denied the allegations made, the defendant by counterclaim, nonetheless, claimed immunity from any claims in negligence arising from its conduct of the case in Court, or in work out of court intimately connected with that conduct. In short, the defendant by counterclaim relied on the principle of the advocates’ immunity articulated by the High Court in GiannarellivWraith.[3] This principle extends to barristers and solicitors immunity from suit for negligence in the conduct of a case in court or in work out of court which leads to a decision affecting the conduct of a case in court. As was explained by Mason CJ, there are good reasons for extending the immunity beyond the courtroom door:
[3] (1988) 165 CLR 543, 559-560
However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P. in Rees v Sinclair .. where his Honour said:
“… The protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.”
7 Notably, when invited to do so in D’Orta-Ekenaike v Victoria Legal Aid,[4] the High Court declined to reconsider the decision or to redraw the boundary of the operation of immunity.[5]
[4] [2005] HCA 12
[5] Ibid. [85]-[87]
8 By Summons filed on 6 October 2014 the plaintiff and defendant by counterclaim sought orders pursuant to Rule 23.02 of the County Court Civil Procedure Rules 2008 (the Rules) striking out Ms Owens’ amended defence and counterclaim and orders for summary judgment pursuant to the Rules, alternatively pursuant to section 63 of the Civil Procedure Act 2010 (the Act). The plaintiff and defendant by counterclaim also sought orders for payment of the costs of the Summons and the proceeding.
9 The Summons was supported by two affidavits: an affidavit of Julian Michael Vagg, sworn on 6 October 2014 (the Vagg affidavit) and an affidavit of Jeremy Scott Broadbent, sworn on 28 November 2014 (the Broadbent affidavit). Mr Vagg is a solicitor and a director of the plaintiff company. Mr Broadbent is a solicitor contracted to the plaintiff. He had the care and conduct of the proceeding brought on behalf of Ms Owens against Mr Galvin.
10 On 6 October 2014 Ms Owens also filed a Summons seeking leave to file and serve an amended defence and counterclaim in accordance with a document prepared by solicitor, Mr Richards, who was then acting on her behalf. Mr Richards subsequently ceased to act for Ms Owens.
11 On 19 December 2014, with Ms Owens appearing in person, orders were made granting leave to the plaintiff to file and serve an amended statement of claim by 22 December 2014, and to Ms Owens to file and serve an amended defence and counterclaim by 14 January 2015. The hearing of the plaintiff’s Summons was adjourned to 11 February 2015 with priority.
12 As appears from a further affidavit sworn by Mr Vagg on 11 February 2015, an alternative claim for relief became necessary once the first mortgagee took possession and sold the property in November 2014, with settlement due on 16 February 2015.
13 On 22 December 2014, the plaintiff filed an amended statement of claim. In addition to amending the pleading clarifying the extent of the financial accommodation given to Ms Owens, declarations were sought as to the validity of the mortgage and as to the amount secured as at 8 August 2013, namely $175,992.59.
14 On 6 February 2015, Ms Owens filed an affidavit sworn on 5 February 2015 seeking adjournment of the Summons to enable her to obtain legal representation. Whilst this affidavit contained various statements relevant to the defendant by counterclaim’s application for summary judgment, Ms Owens did not otherwise respond to the matters raised in supporting affidavit material sworn and filed on behalf of the plaintiff and defendant by counterclaim.
15 No amended defence and counterclaim was filed or served by Ms Owens prior to the first hearing date on 13 February 2015. Her application to adjourn was opposed. I granted an adjournment to 19 February 2015 to allow Ms Owens an opportunity to instruct and negotiate a retainer with a new solicitor, Mr Grundy. He had indicated by email to the Court that, subject to perusal of the materials and negotiation of a retainer with Ms Owens, he was available to act.
16 In further email correspondence received from Mr Grundy on 18 February 2015, the Court was advised he had declined to act for Ms Owens in relation to the defence and counterclaim.
17 On the return date, Ms Owens appeared in person, some 25 minutes after the hearing had already commenced at the appointed time. Her oral application for leave to file the earlier proposed amended defence and counterclaim was unopposed.
18 Ms Owens indicated to the Court that she did not feel able to represent herself. She asked to be excused for the remainder of hearing of the plaintiff’s Summons. However, before leaving, Ms Owens handed to the Court the decision of his Honour, Justice Lasry in FrancisvBunnett[6] and an extract of discussion on professional negligence taken from an Internet site. Ms Owens said she relied both on Francis and on the decision of the New South Wales Court of Appeal in WaltonvEfatoPtyLtd.[7] The latter decision was referred to in the Internet material handed to the court. Ms Owens submitted her counterclaim should be determined at trial because the facts of her case in negligence against her solicitor were distinguishable from the range of circumstances to which the principle of the advocates’ immunity applied.
[6] [2007] VSC 527
[7] [2008] NSWCA 86
The application for summary judgment
19 In this regard the plaintiff relied, in particular, on the test for summary judgment arising under section 63 of the Act. This section confers a discretion on a court to give summary judgment in any civil proceeding if satisfied that a claim, a defence or counterclaim or part of the claim, defence or counterclaim has no real prospect of success. Section 64, nevertheless, permits a court to order a civil proceeding proceed to trial where satisfied it is not in the interests of justice to dispose of the proceeding summarily or the dispute is of such a nature that only a full hearing on the merits is appropriate.
20 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd the Court of Appeal confirmed that for present purposes, the test under section 63 of the Act should be construed as one of whether Ms Owens has a 'real’ as opposed to a ‘fanciful’ chance of success.[8] Essentially, the test required the Court to be satisfied that Ms Owens’ prospects of success in defending the claim and with the counterclaim were real not fanciful. However, as the Court of Appeal cautioned in Lysaght, the power to terminate the proceeding summarily: “… should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings failed to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.”[9]
[8] [2013] VSCA 158 [29]
[9] Ibid [35(d)]
The application for summary judgment on the claim
21 It is unnecessary to revisit the factual matters already summarised above.
22 Having read the pleadings and the affidavit material filed by the plaintiff in support of summary judgment on the claim, as required, I was satisfied that the affidavit material verified the facts on which the claim was made.
23 The defence raised by the amended defence and counterclaim filed on 19 February 2015 amounted to an assertion that the mortgage was unsupported by consideration and was void for uncertainty, the latter by reason of the use of the expression “Cash Rate Target”. Having sighted both the mortgage documents[10] and Regulation 3.4.3 of the Legal Profession Regulations 2005, I was satisfied that, as submitted, firstly, the mortgage documentation recites that Ms Owens agreed the advance was for fees and disbursements for legal services provided by the mortgagee to her commencing from 8 March 2011 and ongoing and, secondly, the Regulation produced to the Court expressly defines the expression used in the mortgage documents.
[10] JMV-1
24 As mentioned, Ms Owens did not file affidavit material specifically responding to the matters raised by the plaintiff’s pleadings and supporting affidavit material. Based on all of the material before the Court, I was satisfied that the defence articulated by Ms Owens had no real prospect of success and that, having been so satisfied, none of the material before the Court indicated a basis for exercising my discretion under section 64 of the Act by allowing the matter to proceed to trial.
25 At hearing, I indicated in open court I would make an order for summary judgment for the plaintiff on its amended statement of claim dated 22 December 2014.
The application for summary judgment on the counterclaim
26 In paragraph 19 of the amended defence and counterclaim filed on 19 February 2015 Ms Owens alleged that prior to trial of the negligence claim against Mr Galvin, she expressly instructed the defendant by counterclaim in the following terms:
a) to procure expert evidence: “who would testify at trial as to what bankruptcy and insolvency advice a member of Counsel in the position of (Mr Galvin) in the Proceeding (professing expertise in the field) might reasonably be expected to convey to a person in the position of Owens”; and
b) to interview and take a proof of evidence from, Georgia McDougall, Ms Owens’ daughter: “and beneficiary under a declaration of trust by Owens (“the Trust”) who had and expressed herself to have an interest in assisting Owens by making property the subject of the Trust available for the first proposed composition, any further composition or annulment of Owen’s bankruptcy or otherwise assist Owens in obtaining an immediate annulment of Owen’s bankruptcy” (the instructions)”.
27 The Particulars subjoined to paragraph 19 stated the instructions were oral and given by Ms Owens to Mr Broadbent: “at or about the time the proceedings by way of Writ out of the County Court were issued in or about December 2011 being approximately 12 months prior to the commencement of the trial of the Proceeding. The substance of the instructions was as alleged.”
28 Ms Owens alleged negligence, alternatively breach of retainer by the defendant, by counterclaim in failing to act upon the alleged instructions leading to loss and damage. Ms Owens further alleged contraventions of the provisions of the Competition and Consumer Act 2010 and the Australian Consumer Law and Fair Trading Act 2012.
29 The Vagg affidavit repeated, as pleaded, that the counterclaim was embarrassing and did not disclose a cause of action against the defendant by counterclaim. Mr Vagg specifically raised the advocates’ immunity defence in response to an earlier version of the counterclaim.
30 Among other things, the Broadbent affidavit rejected the allegation that Ms Owens gave Mr Broadbent the instructions as alleged either verbally or in writing. Mr Broadbent produced email correspondence from Ms Owens dated 13 March 2013, 26 March 2013 and 25 April 2013, sent after the decision of the County Court was delivered dismissing the claim made against Mr Galvin.[11]
[11] The Broadbent affidavit, JSB-1 to 3 inclusive
31 Tellingly, none of this email correspondence, in which Ms Owens drew attention to various findings made by the Court, asserted that the instructions had been given as alleged or at all. For instance, in her emails dated 13 March 2013 and 26 March 2013, both addressed to Mr Broadbent, Ms Owens questioned Mr Broadbent about the failure to adduce the evidence but said nothing about any earlier instruction by her to the defendant by counterclaim to procure this expert evidence:
i have made the comment in the past several times that the judge was critical of the failure to produce evidence that the advice Galvin failed to give was not within the knowledge of a barrister. That is not the case but no steps were taken to ask alternative counsel as far as I’m aware. Do you agree that was an omission in our evidence? I understand the fact is she did not believe me anyhow and the case would have failed but I ask you to answer the question. What James omitted to do was to ask Rob Campbell how many lawyers he had dealt with over such matters because there have been heaps and if that evidence had been given it would have been harder for her to decide what she did. I’m not looking to you or James to blame at all but if a new trial was ever ordered then these omissions would need addressing.… [sic];
The other issue I have asked you to comment on in my last email was the fact that she was very critical of the lack of ebvidence from another lawyer as to the knowledge of lawyers and vbarristers concerning the possibility of mortgaging and paying out the trustee. The absence of that evidence would have destroyed my case by itself had it not been for her decision to disbelieve my evidence I would have taken that step. Evidence from another liquidator should have been sought or other lawyers and this was not done [sic].
I am not on a blame game path. It may have been clarified by James asking Rob wwith what solicitors he had dealt and how often [sic].
32 By email dated 29 April 2013 Mr Broadbent addressed the request for comment in some detail by summarising various aspects of the decision.[12] In doing so, he specifically reminded Ms Owens that the trial judge had not indicated this evidence was required and had also found that if the advice had been given, it was unlikely that Ms Owens would have taken the option of a second composition proposal or of approaching financiers directly to raise funds to pay out a bankruptcy.[13]
[12] The Broadbent affidavit, JSB-4
[13]Owens [80] and [94]-[100]
33 Notably, the Court of Appeal rejected the submission that the trial judge had been wrong to have had regard to what Ms Owens did at the time when she said she had not had the benefit of proper advice and/or the advice Ms Owens alleged should have been given to her by Mr Galvin. The Court stated as follows:[14]
… the trial judge was not bound to accept the appellant’s evidence that she would have taken one of the options not advised by the respondent at any time prior to October 2009. Indeed, it is of some note that notwithstanding the retaining of MW Law in early 2009, the appellant continued on her previous course during the balance of that year – before taking the alternative course in 2010. Having regard to all of the evidence (and not merely that of the appellant), again we see no error in her Honour’s approach. Further, as has been said before, evidence of what a person would have done if given particular advice, which is given with the benefit of the hindsight of what actually occurred, has been well described as ‘so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in most circumstances’…
[14]Owens [66]
34 Mr Broadbent swore that he had not been contacted by Ms Owens’ daughter about any matter of substance relating to the proceeding at any stage prior to or during the hearing of the proceeding against Mr Galvin. Specifically, Ms McDougall had not contacted him and sought to make herself available for an interview. Again, documents were produced in support of this assertion. In particular Mr Broadbent produced copies of correspondence sent to the defendant by counterclaim in 2014 and an affidavit sworn by Ms Owens on 14 August 2014 in proceedings before the Federal Circuit Court of Australia. Those documents contain statements which are inconsistent with the pleading as particularised that Ms Owens gave an oral instruction to Mr Broadbent to interview and obtain a proof of evidence from her daughter.[15] In effect, various statements made in the documents lend weight to Mr Broadbent’s assertion that, for instance, he was not so instructed by indicating the following matters:
[15] The Broadbent affidavit, JSB-5, 6 and 7
Before trial I did not recall my daughter Georgia in 2005 had expresses the opinion to me I should raise the money to pay out my bankruptcy which I agreed I should do but believed I could not access funds because the Trustee owned my property…. Georgia has recently informed me of this conversation and she had spoken to Jeremy Broadbent concerning her recollection over this event on the day the judgement was handed down. Clearly had Georgia been spoken to her evidence would have had significant impact on the outcome [sic]..; and
Secondly I have raised the issue with you as to the contents of his conversation with my daughter Georgia in February 2013 in which she made it clear to him had she been asked she recalled the critical contents of a conversation she had with me in 2005 on the issue of my willingness to have followed the advice I complained had not be provided by Mr Galvin… I had not known of my daughter’s conversation with him until very recently and I have since contacted Counsel experienced in Bankruptcy who is supportive of my complaint [sic]…; and
f. I eventually became aware from discussions with my daughter Georgia at the relevant time in 2005 I had forgotten, concerning my legal problems and solutions which would have chosen and discussed with her which evidence would have been critical evidence for the Judge, had Mr. Broadbent ever sought to speak to her concerning my position, what she recalled what her position concerning claims of a trust would have been. That investigation never occurred and was critical to the outcome of my claim. My daughter spoke to Mr. Broadbent confirming his recollections after the trial [sic].
35 As mentioned, Ms Owens has not filed any affidavit material directly responding to the factual matters raised in the defendant by counterclaim’s supporting affidavits. As a consequence, there was no sworn evidence before the Court from Ms Owens or her daughter articulating the circumstances under which it was claimed the instructions were given.
36 Apart from the matters summarised above, the defendant by counterclaim again relied on the trial judge’s findings which indicated that the barrister had not been negligent in failing to advise Ms Owens about additional ways of ending bankruptcy and, had she received this advice, it was unlikely that she would have taken it.
37 It was further submitted that even had the defendant by counterclaim received the instructions alleged, which was denied, these matters were not germane to the decision of the County Court, later upheld by the Court of Appeal. Indeed, it is difficult to see how obtaining the expert evidence to which Ms Owens referred and/or a proof of evidence from the daughter had any bearing on the course the trial took, particularly in view of the trial judge’s conclusion that Mr Galvin did not have a duty to provide this advice and Ms Owens probably would not have pursued a composition proposal had it been advised. In short, Ms Owens could not establish causation even if the conduct alleged was proven.
The advocates’ immunity
38 In her affidavit seeking to adjourn this Summons, Ms Owens, however, alluded to the defendant by counterclaim’s reliance on the advocates’ immunity test indicating as she had before leaving the hearing on 19 February 2015, that this issue warranted determination at trial because her case was distinguishable on its facts from the range of circumstances to which immunity applied.
39 I have already summarised the advocates’ immunity principle established by the High Court in Giannarelli. In D’Orta-Ekenaike the High Court explained the justification for advocate’s immunity in the following terms:[16]
“… The central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.”
[16] Op. cit. [45]
40 Both decisions on which Ms Owens’ relied discussed the limitations to the advocates’ immunity principle.
41 In Francis the plaintiff sued her former solicitor for damages for breach of retainer and negligence relating to the conduct of her case in the County Court. She alleged that, after termination of his retainer, the solicitor had consented to the settlement of her case without instructions to do so.
42 The defendant filed a Summons seeking orders under Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 to stay the proceeding or, alternatively, for entry of judgment for the defendant. The test applied by Lasry J to determine whether to grant the stay or enter judgment for the defendant under Rule 23.01 differed from the test under the Act. The former required his Honour to determine whether the proceedings were ‘untenable’ and ‘bound to fail‘.
43 However, the issue for determination in the proceeding was whether the principle of the advocates’ immunity applied to the allegations made against the solicitor in the plaintiff’s claim. As in the present case, the Court was not required to decide the issue or issues for determination.
44 In Francis Lasry J concluded that: “it is arguable that where advocates resolve proceedings before trial and there is no quelling of the controversy by the exercise of judicial power involving the determination of the issues in the case, such activities and the work connected with them may fall outside the immunity articulated in D’Orta-Ekenaike.”[17] Applying the relevant test, his Honour was not satisfied the claim made by the plaintiff was so clearly untenable that it could not possibly succeed or on the facts and was bound to fail. He found the plaintiff was entitled to have the action against her former solicitor dealt with at trial.
[17] Op. cit. [36]
45 The defendant by counterclaim submitted, in my view correctly, the decision in Francis does not qualify the advocates’ immunity principle. On the facts of that case there had been no determination or resolution of the issues by a court and a trial judge would have to determine whether the advocates’ immunity was limited to controversies resolved by a court.
46 The decision in Walton is likewise distinguishable.
47 In Walton the District Court decided that the solicitor acting for the company had breached his duty of care with respect to a Statutory Demand for payment of debt against the company. The company failed to comply with the demand, and was deemed insolvent and ordered to be wound up. The company claimed the solicitor was liable in negligence for failing to file the appropriate notice to rebut the presumption of insolvency. The company, however, had changed solicitors before the conclusion of the trial and, at the last minute, produced evidence from a witness, an individual prepared to provide capital. The witness’s evidence of financial assistance to the company had ensured the company’s ultimate success in avoiding being wound up.
48 Despite its success, the company was penalised in the costs orders made by reason of the delay in adducing the evidence.
49 The solicitor claimed advocate’s immunity in respect of most but not all of the costs and expenses claimed. The District Court found that the solicitor was not immune from suit in negligence based on the failure to obtain appropriate evidence to rebut the presumption of insolvency.
50 The New South Wales Court of Appeal dismissed the appeal from this decision. Whilst the Court discussed the limits of the advocates’ immunity in some detail, its comments in this regard were obiter. The complaint in Walton was, as Tobias JA noted, a complaint about the making of a wasted costs order which, but for the negligence of the solicitor, would not have been made, where no possible dispute about the outcome of the litigation arose.[18]
[18]Walton [88]-[89]
51 The obiter comments of the Court did not challenge the formulation of the advocates’ immunity principle or the underlying policy considerations favouring finality. However, as Tobias JA further noted, an important question relating to the application of the advocates’ immunity with respect to preparatory Court work arose in that case, in view of observations made by the High Court decision in D’Orta-Ekenaike. In D’Orta-Ekenaike the Court said a claim for wasted costs fell into a different category from a complaint that there had been a wrong intermediate or final result.[19] The observations to which Tobias JA referred were made at paragraph [83] of the High Court decision as follows:
There remains for separate consideration the last of the three kinds of consequence identified earlier as consequences of which a client may wish to complain: wasted costs. Again, at first sight it might be thought that seeking to recover wasted costs would not cut across any principle of finality. But it is necessary to recall that the general rule is that cost follow the event. To challenge the costs order, therefore, will often (even, usually) involve a direct or indirect challenge to the outcome on which the disposition of costs depended. For the reasons given earlier, that should not be permitted lest a dispute about wasted costs becomes a vehicle for a dispute about the outcome of the litigation in which it is said that the costs were wasted.
[19] Ibid. [89]-[90]
52 Accordingly, Walton was decided on a different basis and no attempt was made to resolve the issue of whether the advocates’ immunity principle would or should be available in wasted costs complaints where there is no possible dispute about the outcome of the litigation. Ms Owens’ counterclaim, on the other hand, clearly involves a complaint that the final result of the decision of the County Court was wrong.
53 Where, as in this case, the plaintiff by counterclaim is unrepresented, it is important to ensure that the claim does not simply fail for want of well-crafted pleadings. However, the difficulties with Ms Owens’ claim will not be resolved by amendment.
54 I do not propose to revisit the arguments raised for and against summary judgment.
55 Ultimately, I was satisfied that the counterclaim had no real prospect of success both in proving causation, that is whether the omissions alleged if proven were relevant to or caused the failure of the action against Mr Galvin and, if necessary, in also establishing that the conduct alleged, again if proven, fell outside the limits of the advocates’ immunity principle as currently understood. In short, I was satisfied that the prospects of success of the counterclaim were fanciful in the sense required by the Act. None of the material before the court or, indeed, the authorities to which I was referred satisfied me that it was, nevertheless, appropriate to order that the counterclaim proceed to trial.
56 I propose to make an order for summary judgment for the defendant by counterclaim.
57 I will hear from the parties as to the appropriate orders.
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