SUPREME COURT OF QUEENSLAND
CITATION:
Rogers v Roche & Ors [2016] QCA 340
PARTIES:
ANDREW IAN ROGERS
(appellant)
v
STEPHEN FRANCIS ROCHE
(first respondent)
SIMON MICHAEL MORRISON
(second respondent)
MARIA SKORDOU
(third respondent)FILE NO/S:
Appeal No 10302 of 2015
SC No 2977 of 2014DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2015] QSC 272DELIVERED ON:
16 December 2016
DELIVERED AT:
Brisbane
HEARING DATE:
20 July 2016
JUDGES:
Fraser and Gotterson JJA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Allow the appeal.
2. Set aside the orders made in the Trial Division on 24 September 2015.
3. Paragraphs 27, 41-45, 49 and 52 of the Fresh Statement of Claim be struck out.
4. Otherwise the respondents’ application in the Trial Division be refused.
5. The appellant have leave to file and serve an amended statement of claim which omits the paragraphs of the Fresh Statement of Claim mentioned in order 3 and which otherwise amends the Fresh Statement of Claim in ways which are not inconsistent with these reasons, such statement of claim to be filed and served within 21 days of judgment in this appeal.
6. The parties have leave to make submissions about the costs of the appeal and the costs in the Trial Division in accordance with the Practice Direction or as directed by a Judge of Appeal.
CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – IMMUNITY FROM SUIT – where the appellant was injured when he was riding as a pillion passenger on a jet ski – where the appellant brought proceedings in the Trial Division and was given judgment including an amount for economic loss – where the appellant considered that the award for economic loss did not fully compensate him for the economic loss he had sustained – where the appellant commenced proceedings in the Trial Division against the respondents to recover the balance of the loss he had sustained and for other relief – where the appellant’s “Fresh Statement of Claim” claimed damages for breach of retainer, negligence and breach of fiduciary duty, a declaration that the first and second respondents were not entitled to the payment of fees they had charged and consequential orders for repayment of those fees – where the primary judge held that the appellant’s claims for breach of retainer, negligence and breach of fiduciary duty, and the parts of the Fresh Statement of Claim relating to those claims, be struck out for a number of reasons including that the claims were not maintainable by reason of the advocate’s immunity – where the appellant argued that the first and second respondents breached fiduciary duties that they owed to the appellant by preferring their own interests over the appellant’s interests – where the allegations against the first and second respondents concerned solicitors’ out of court conduct in…
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- AGLC
- Rogers v Roche [2016] QCA 340
- Case
- [2016] QCA 340
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the advocate's immunity extended to the solicitors' alleged out-of-court conduct in handling Rogers' personal injuries claim and whether Rogers' claims amounted to an abuse of process. Rogers argued that the immunity did not apply to the out-of-court conduct, while Roche contended that the immunity covered any acts that contributed to the litigation. The court also had to consider whether Rogers' claims involved re-litigating issues already determined in the personal injuries judgment, which would render them an abuse of process.
The court found that while the advocate's immunity generally protected lawyers from liability for their actions during litigation, it did not extend to out-of-court conduct that did not influence the litigation process. Consequently, Rogers' claims for breach of fiduciary duty and negligence regarding the solicitors' out-of-court conduct were not covered by the immunity. The court also held that Rogers' claims did not constitute an abuse of process because they did not seek to overturn the personal injuries judgment but rather addressed separate issues of the solicitors' conduct. The court concluded that the claims should not be dismissed outright but required certain parts to be struck out to avoid re-litigation.
The appeal was allowed, and the orders of the Trial Division were set aside. Specific paragraphs of Rogers' Fresh Statement of Claim were struck out, and Rogers was granted leave to file an amended statement of claim within 21 days. The parties were also permitted to make submissions regarding the costs of the appeal and the Trial Division proceedings.
Orders
Orders of the court
1. Allow the appeal.
2. Set aside the orders made in the Trial Division on 24 September 2015.
3. Paragraphs 27, 41-45, 49 and 52 of the Fresh Statement of Claim be struck out.
4. Otherwise the respondents’ application in the Trial Division be refused.
5. The appellant have leave to file and serve an amended statement of claim which omits the paragraphs of the Fresh Statement of Claim mentioned in order 3 and which otherwise amends the Fresh Statement of Claim in ways which are not inconsistent with these reasons, such statement of claim to be filed and served within 21 days of judgment in this appeal.
6. The parties have leave to make submissions about the costs of the appeal and the costs in the Trial Division in accordance with the Practice Direction or as directed by a Judge of Appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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