Russell v Aitken Partners (a firm) (Ruling No. 3)
[2017] VCC 1804
•5 December 2017
Life ha
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-05222
| Christopher Andrew Russell | Plaintiff |
| v | |
| Aitken Partners (a firm) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 5 December 2017 | |
CASE MAY BE CITED AS: | Russell v Aitken Partners (a firm) (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1804 | |
Ruling
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Subject: Application for summary judgment
Cases Cited:Lysaght Buildings Solutions Pty Ltd V Blanalko Pty Ltd [2013] VSCA 158, Yara Australia Pty Ltd V Oswal [2013] VSCA 337.
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| RULING ON THE PAPERS PURSUANT TO WRITTEN SUBMISSIONS FROM BOTH PARTIES |
HIS HONOUR:
1 In this proceeding the plaintiff makes application that the defendant’s defence be summarily dismissed and that judgement be entered in his favour.
2 The test to be applied by me in determining this application is whether the defence pleaded by the defendant has a:
“real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding”.[1]
[1]Lysaght Buildings Solutions Pty Ltd V Blanalko Pty Ltd [2013] VSCA 158 at [29].
3 The plaintiff’s claim against the defendant essentially involves an allegation that the defendant, who was retained by the plaintiff to act as his solicitor pursuant to a retainer dated 17 December 2013, acted negligently and/ or in breach of that retainer.
4 It is clear that the primary issue in the proceeding involves an analysis of the conduct of the defendant which in turn involves an analysis of the following issues:
· the breadth of the retainer;
· the behaviour of the defendant in executing its duty pursuant to the retainer;
· the behaviour expected of a competent and reasonable solicitor in executing the duty the subject of such a retainer;
· a determination as to whether the behaviour of the defendant in executing its duty pursuant to the retainer conformed with that expected of a competent and solicitor acting reasonably.
5 It follows that in a claim of the type made by the plaintiff in which the alleged breach is denied by the defendant, the court will be required to scrutinise:
(i) the persuasiveness of the allegation made by the plaintiff as to the way in which the defendant either acted inappropriately or failed to act appropriately:
(ii) the persuasiveness of evidence adduced on behalf of the defendants in defence of its behaviour and decision-making process:
for the purpose of determining whether the defendant’s conduct fell outside the range of appropriate management expected of a competent solicitor acting reasonably.
6 In this instance the plaintiff asserts that admission made by the defendant in its defence that it omitted to include a letter from David Stagg Tonkin dated 3 December 2013 (the letter) in the briefs it provided to Counsel, involves conduct which entitles him to summary judgement.
7 In response it is the defendant’s position that the document was not included in the briefs because it was irrelevant and on that basis the defendant denies any allegation that it is acted either negligently or in breach of the plaintiff’s retainer.
8 A further issue arises as to whether the defendant, in failing to include the letter, deliberately withheld that information from the plaintiff.
9 That allegation is again denied by the defendant, essentially on the same grounds upon which it defends its decision not to include the letter in the counsels’ brief.
10 In this application the plaintiff asserts that the defendants defence has “no real prospect of success because it is allegation that the letter of 3 December was irrelevant cannot be sustained”.
11 On that basis it is put on behalf of the plaintiff that a trial in the proceeding would be a futile waste of time. In making that assertion the plaintiff contends that the defendant contravened its overarching obligation pursuant to the provisions of the Civil Procedure Act to disclose to each party the existence of the letter.
12 A largely identical argument has been pressed by the plaintiff on a number of occasions in this proceeding and has been dismissed by me previously in circumstances in which I gave oral reasons explaining to the plaintiff the fact:
· that the assertion made by him is merely an assertion until it is proven that the defendant in failing to disclose the existence of the letter acted unreasonably in that the decision did not accord with the behaviour expected of a competent and reasonable solicitor; and
· that notwithstanding the vehement belief held by the plaintiff that the defendant’s failure to disclose the existence of the letter involves a breach of its obligation to act reasonably, the defence taken by the defendant takes issue with the plaintiff’s allegation and accordingly raises a triable issue.
13 It follows that the plaintiff will be obliged to adduce evidence which satisfies the court on the balance of probabilities that the admitted failure by the defendant not to include the letter in Counsel’s brief was indeed unreasonable and in turn negligent.
14 Given that the issues to which I have referred above are required to be determined in this proceeding before:
· the plaintiff’s claim is made out; and/or
· the defendant’s defence is established or dismissed;
it is clear in my opinion that a triable issue arises in the case and that it could not be contended that the defendant does not have a real chance of making out its defence and that this prospect cannot be described as involving only a chance of success.
15 The assertion by the plaintiff that the defendant has breached the provisions of the Civil Procedure Act in failing to make available the letter involves a triable issue no different to that to which I have referred above.
16 It is merely an allegation which is denied, the proof of which requires adjudication by the court on the basis of the evidence to be adduced by the parties which will allow the court to determine whether or not the admitted behaviour falls outside the range of the behaviour expected of a reasonable and competent solicitor.
17 The Civil Procedure Act creates no statutory right to the plaintiff for an award of damages in the event of a proven breach of one or other of the obligations created by reason of the provisions of the Act.[2] In reality the provisions of that Act relied upon by the plaintiff do no more than restate the well-established duty of care of a solicitor which is well recognised by the Common-Law.
[2]see Yara Australia Pty Ltd V Oswal [2013] VSCA 337.
18 In paragraphs 7 and 8 of its submissions in response to the plaintiff’s application in this instance the defendant makes clear the nature of its defence to the plaintiff’s claim.
19 No point is served by me merely restating the content of those paragraphs. I am satisfied however that a balanced and careful reading of those paragraphs discloses the nature of the triable issue which arises in this instance, to which I have previously referred, and accordingly the reason for which this application must fail.
20 For the reasons set out above I will make an order dismissing the plaintiff’s application for summary judgement.
21 Although the plaintiff is self-represented in this instance I have previously provided the plaintiff with copies of the relevant pages 3369 – 3378 from William’s Civil Procedure Victoria for the purpose of allowing him to gain some understanding of the law relevant to the entry of summary judgement and have explained to him the process involved when dismissing a previous application for summary judgement on similar grounds.
22 I am satisfied in the circumstances for these reasons that a costs order should be made against the plaintiff with respect to this application.
23 I will hear the defendant as to the terms of the costs order sought in this instance.
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