Rogers v Roche

Case [2015] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Rogers v Roche & Ors [2015] QSC 272

PARTIES:

ANDREW IAN ROGERS

(respondent/plaintiff)

v
STEPHEN FRANCIS ROCHE, SIMON MICHAEL MORRISON AND MARIA SKORDOU

(applicants/defendants)

FILE NO/S:

BS No 2977 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2015

JUDGE:

Douglas J

ORDER:

Subject to further submissions about the form of the orders and costs:

1.   Strike out paras 4-9, 13(c), 24-27, 34-59, 67(c) and 72 of the fresh statement of claim.

2.   Judgment for the defendants in respect of para 1 of the prayer for relief contained in the fresh statement of claim.

CATCHWORDS:

PROCEDURE –  SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the plaintiff was successful in an action in this Court arising out of an injury he sustained to his left eye when riding as a pillion passenger on a jet ski driven by his son – where the plaintiff was awarded $130,000 for past economic loss and $350,000 for future economic loss – where the plaintiff issued proceedings against the solicitors he engaged for the earlier trial, alleging that those solicitors failed to obtain any or any adequate proofs of evidence from him in respect of his personal injuries and their effect on his capacity to earn income and from other witnesses relating to those issues and that they failed to call evidence from witnesses who should have been called – whether the claim for damages for breach of retainer, negligence and breach of fiduciary duty was an abuse of process which sought to re-litigate the earlier decision – whether the new proceeding was not maintainable as a matter of law by virtue of the “advocates’ immunity”

Personal Injuries Proceedings Act 2002 (Qld), s 4, ss 42-56

Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2015] HCATrans 176 (7 August 2015), cited
Brickenden v London Loan & Savings Co [1934] 3 DLR 465, cited
ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; [2014] FCAFC 65, cited
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52, cited
Lewis v Hillhouse [2005] QCA 316, followed
Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335, cited

Ligon Sixty-Three Pty Ltd v ClarkeKann [2015] QSC 153 followed
Mantonella Pty Ltd v Thompson [2009] 2 Qd R 524; [2009] QCA 80, cited
Rogers v Interpacific Resorts (Australia) Pty Ltd[2007] QSC 239, cited
Symonds v Vass (2009) 257 ALR 689; [2009] NSWCA 139, considered

COUNSEL:

K Holyoak for the applicants/defendants
R Cavanagh SC for the respondent/plaintiff

SOLICITORS:

McInnes Wilson Lawyers for the applicants/defendants

Gilchrist Connell Brisbane as town agent for Gilchrist Connell Adelaide for the respondent/plaintiff

  1. In this action the plaintiff, Mr…

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AGLC
Rogers v Roche [2015] QSC 272
Case
[2015] QSC 272
Decision Date

CaseChat Overview and Summary

In the case of Rogers v Roche, the plaintiff, Mr Rogers, sought to re-litigate the assessment of damages awarded to him in an earlier trial against the solicitors who represented him during that proceeding. The earlier trial resulted in a judgment of $593,708.46 awarded to Mr Rogers for injuries he sustained while riding as a pillion passenger on a jet ski. The Court awarded $130,000 for past economic loss and $350,000 for future economic loss. Mr Rogers now claims that his solicitors failed to obtain adequate evidence and call appropriate witnesses, resulting in a lower damages award than he would have received had they performed their duties properly.

The legal issues before the Court were whether Mr Rogers’ claim against his solicitors constituted an abuse of process and whether the claim was barred by advocates’ immunity. Abuse of process refers to the misuse of legal proceedings to achieve an improper purpose, while advocates’ immunity protects legal professionals from liability for their actions during litigation, provided those actions were carried out in good faith. The Court had to determine if Mr Rogers’ claim was an attempt to re-litigate the damages assessment or if it was a legitimate claim for professional negligence.

The Court concluded that the claim against the solicitors was an abuse of process and that the advocates’ immunity applied to bar the claim. The Court found that Mr Rogers’ attempt to re-litigate the damages assessment through a claim against his solicitors was inconsistent with the advocates’ immunity. Consequently, the Court struck out parts of the statement of claim that challenged the earlier damages assessment and dismissed the claim for professional negligence. The Court ordered the relevant parts of the statement of claim to be struck out and gave judgment in favour of the defendants on the claim for damages.

Orders

Orders of the court

Subject to further submissions about the form of the orders and costs:

1. Strike out paras 4-9, 13(c), 24-27, 34-59, 67(c) and 72 of the fresh statement of claim.

2. Judgment for the defendants in respect of para 1 of the prayer for relief contained in the fresh statement of claim.

Background

Background to the litigation

In this action the plaintiff, Mr Rogers, seeks to re-litigate the assessment of his damages in earlier litigation. Background He was successful in an action in this Court arising out of an injury he sustained to his left eye when riding as a pillion passenger on a jet ski driven by his son at Couran Cove Resort on South Stradbroke Island on 29 December 2001. On 7 September 2007 he received a judgment against the operator of that resort for $593,708.46.[1] In assessing the plaintiff’s damages, White J awarded him $130,000 for past economic loss and $350,000 for future economic loss. Mr Rogers was a solicitor and the economic loss he claimed was based on the effect of the injury on his ability to perform his work in that role.[2] White J, in her reasons, referred to there being many speculative elements involved in the assessment of Mr Rogers’ economic loss which she discussed in detail.[3] There was no appeal from that decision. [1] See Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239.[2] See, e.g., Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 at [53].[3] See Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 at [84]. He has now issued proceedings against the solicitors he engaged for the earlier trial alleging that, both during the earlier stage of the original proceedings when they worked on the steps required by the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA stage”) and at the later stage of the litigation of the earlier proceeding, when they took the matter to the trial, those solicitors failed to obtain any or any adequate proofs of evidence from him in respect of his personal injuries and their effect on his capacity to earn income and from other witnesses relating to those issues. He also alleges that they failed to call evidence from witnesses who should have been called. In effect he now wishes to reduce the speculative elements of the earlier evidence by calling further evidence than was called for him at that trial. The defendants have attacked the claim for damages for breach of retainer, negligence and breach of fiduciary duty on two bases. The first is that it is an abuse of process which seeks to re-litigate the earlier decision. The second basis is that the new proceeding is not maintainable as a matter of law by virtue of the “advocates’ immunity”.[4][4] See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Giannarelli v Wraith (1988) 165 CLR 543. Mr Rogers’ case as pleaded is that, if the first and second named defendants, the partners of the firm originally retained by him, Shine Roche McGowan later known as Shine Lawyers, had properly performed their obligations pursuant to their retainer and/or if each of the defendants, including the third named defendant, the solicitor who acted directly for him in the litigation stage of the earlier proceedings, had exercised reasonable care and skill in the provision of their legal services or if each of them had discharged their obligations as fiduciaries then he would have obtained damages for economic loss by settlement at the PIPA stage or alternatively at the litigation stage or by judgment in accordance with the most favourable scenario expressed in a joint experts’ report of $1,569,325. The joint experts’ report was one relied on at the earlier trial. Mr Rogers also pleaded that the amount of $480,000 should be deducted from that amount, referable to her Honour’s assessment at trial of his economic loss.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the law presently stands, absent a re-opening of the issue of whether advocates should be immune from suit, I am satisfied that the relevant parts of the pleading should also be struck out because they are inconsistent with the immunity. Conclusion and orders Consequently I shall strike out those parts of the pleading that challenge the assessment of damages in the previous litigation but leave in the allegations apparently relevant to the claim for repayment of legal costs. On that basis I propose, subject to further submissions about the form of the order and costs, to strike out paras 4-9, 13(c), 24-27, 34-59, 67(c) and 72 of the fresh statement of claim and give judgment for the defendants in respect of the claim in para 1 of the prayer for relief.

Ratio Decidendi

Legal Principle Established

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