FRASER JA: The appellant has appealed against the orders made in the trial division striking out part of the appellant’s statement of claim; giving judgment for the respondents in respect of the appellant’s most substantial claim, the claim for damages for breach of retainer, negligence and breach of fiduciary duty; making costs orders in favour of the respondents; removing the third respondent from the proceeding; and making procedural directions. In what follows, I will refer to that substantial claim for damages as “the claim”.

The appellant has applied for orders which include a stay of the orders made by the primary judge pending appeal. The respondents have applied for security for their costs of the appeal. In relation to the respondents’ application for security, the appellant has not contradicted the respondent’s evidence that a reasonable estimate of the legal costs they will occur in resisting the appeal is $31,500, of which the respondents would recover approximately $20,000 on the standard basis of assessment if the appeal is dismissed with costs. Upon the appellant’s evidence, he owns no real property. His debts exceed his assets by hundreds of thousands of dollars. A credit card debt exceeds his cash reserves and he is unemployable as a result of a disability. The appellant’s evidence suggests that this state of affairs resulted from injuries he unfortunately sustained in an accident in 2001. That the respondents might defeat the appeal but not obtain satisfaction of a consequential costs order favours an order for security.

On the other hand, the evidence suggests that the appellant could not secure any substantial amount as security for the respondent’s costs of the appeal. An order for security therefore might stifle his appeal. That favours refusal of the application for security. The respondents argue that the prospects of the appeal are poor and that this favours ordering security. The appellant argues that he has good prospects and that this favours refusal of security. It is therefore necessary to consider the appellant’s prospects of success, although I can do this only upon a provisional basis and with reference to the necessarily abbreviated arguments upon this interlocutory application.

I will briefly set out the facts. The appellant retained the first and second respondents to act as his solicitors in a claim for damages for the injuries he sustained in his accident. After a trial, the appellant was given judgment for about $600,000. The part of the appellant’s claim which the primary judge struck out included allegations that in breach of the retainer, and without the appellant’s knowledge, the first and second respondents substantially delegated the performance of their retainer to Murshine Pty Ltd. That company was not entitled to practice law and it employed solicitors, including the third respondent,…

Grounds of appeal

[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.

Continue reading Rogers v Roche

Details

AGLC: Rogers v Roche [2015] QCA 222
Case: [2015] QCA 222
Decision Date: 9 NOVEMBER 2015

CaseChat Overview and Summary

In the matter of Rogers v Roche, the appellant, Andrew Ian Rogers, sought to appeal against the orders made by the trial division. The appellant had previously retained the first and second respondents, Stephen Francis Roche and Simon Michael Morrison, as his solicitors in a claim for damages for the injuries he sustained in an accident. After a trial, the appellant was awarded approximately $600,000 in damages. The appellant brought a claim against the first and second respondents, alleging that they breached their retainer, were negligent, and breached their fiduciary duties. The appellant contended that had the respondents properly performed their retainer or exercised reasonable care and skill, the appellant would have obtained damages for his claim for economic loss of about $1.6 million.

The primary judge struck out part of the appellant’s statement of claim and gave judgment for the respondents in respect of the appellant’s most substantial claim, the claim for damages for breach of retainer, negligence, and breach of fiduciary duty. The primary judge also made costs orders in favour of the respondents, removed the third respondent from the proceedings, and made procedural directions. The appellant has appealed against these orders. The respondents have applied for security for their costs of the appeal.

The Court of Appeal considered the appellant's prospects of success on appeal, finding that it was arguable that the primary judge applied the wrong test in deciding that the respondents were immune from suit in relation to their presentation of the appellant's claim during the PIPA processes. The Court also found that it was arguable that not all claims made by the appellant against the respondents inevitably attract immunity from suit such as to justify summary striking out.

The Court refused the application for security for costs, finding that the appellant's prospects of success were not so limited as to justify the likely prospect that his appeal would be stifled by an order for security for costs. The Court also refused the appellant's application to stay the orders made by the primary judge, except for the costs orders, which were stayed until judgment in the appeal or further order. The costs of each application were ordered to be costs in the appeal.

In summary, the Court of Appeal found that the appellant had arguable prospects of success on appeal and refused the application for security for costs. The Court also stayed the enforcement of the costs order made by the primary judge until judgment in the appeal or further order. The costs of each application were ordered to be costs in the appeal.

Orders