Sims v Chong

Case [2015] FCAFC 80

FEDERAL COURT OF AUSTRALIA

Sims v Chong [2015] FCAFC 80

Citation: Sims v Chong [2015] FCAFC 80
Appeal from: Sims v Chong [2014] FCA 1069
Parties: DOUGLAS ARTHUR SIMS v PATTI PENG SA CHONG
File number: WAD 315 of 2014
Judge: MANSFIELD, SIOPIS AND RARES JJ
Date of judgment: 5 June 2015
Catchwords: APPEAL - legal practitioners – advocate’s immunity – the respondent legal practitioner represented the appellant in a Supreme Court of Western Australia proceeding – the appellant’s claim in the Supreme Court was struck out and dismissed – the appellant commenced a proceeding for damages in the Federal Court of Australia alleging the respondent had misrepresented her competence to conduct the Supreme Court proceeding – the appellant’s claim was summarily dismissed by the primary judge on grounds of advocate’s immunity – whether the doctrine of advocate’s immunity applied to statutory causes of action - whether it was arguable that the doctrine of advocate’s immunity did not apply to the claim made by the appellant – whether order for summary judgment ought to have been made.  
Legislation:

Federal Court Rules 2011 (Cth)
Federal Court of Australia Act 1976 (Cth)
Australian Consumer Law
Legal Profession Practice Act 1958 (Vic)
Trade Practices Act 1975 (Cth)
Fair Trading Act 1987 (NSW)
Cases cited:

Sims v Chong [2014] FCA 1069
Sims v Suda Ltd [2014] WASC 3
Rippon v Chilcoton Pty Ltd (2001) 53 NSWLR 198
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Giannarelli v Wraith (1988) 165 CLR 543
NT Pubco Pty Ltd v Stradzins [2014] NTSC 8
Goddard Elliot (a firm) v Fritsch [2012] VSC 87
Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169
Spencer v Commonwealth (2010) 241 CLR 118
Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64
Commonwealth Bank of Australia v Walker (2012) 289 ALR 674
Symonds v Vass (2009) 257 ALR 689
Attard v James Legal Pty Ltd [2010] NSWCA 311
Donnellan v Woodland [2012] NSWCA 433
Nikolaidis v Satouris [2014] NSWCA 448
Nikolaidis and Alpine Holdings Pty Ltd v Feinaeur [2008] WASCA 85
Glendinning v Cuzens [2009] WASC 21
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Boland v Yates Property Corporation [1999] HCA 64; (1999) 167 ALR 575
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Bolt v Carter [23012] NSWCA 89
Date of hearing: 3 March 2015
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 98
Counsel for the Appellant: MD Howard SC and N Ekanayake (Pro Bono)
Counsel for the Respondent: M Cuerden SC and S Popperwell
Solicitor for the Respondent: Denman Popperwell Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 315 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DOUGLAS ARTHUR SIMS
Appellant
AND:

PATTI PENG SA CHONG
Respondent

JUDGES:

MANSFIELD, SIOPIS AND RARES JJ

DATE OF ORDER:

5 JUNE…

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Sims v Chong [2015] FCAFC 80
Case
[2015] FCAFC 80
Decision Date

CaseChat Overview and Summary

In Sims v Chong, Sims, the appellant, filed a claim for damages against Chong, the respondent, a legal practitioner, in the Federal Court of Australia. Sims alleged that Chong misrepresented her competence to conduct a Supreme Court of Western Australia proceeding on Sims' behalf, leading to the dismissal of Sims' claim in the Supreme Court. The Federal Court dismissed Sims' claim on the basis of advocate’s immunity, prompting the appeal.

The appeal focused on several legal issues. Firstly, whether the doctrine of advocate’s immunity applied to statutory causes of action, specifically under section 18 of the Australian Consumer Law. Secondly, whether it was arguable that the doctrine of advocate’s immunity did not apply to Sims' claim, and thirdly, whether the order for summary judgment should have been made. The Court considered these issues in the context of the principles set out in Spencer v Commonwealth (2010) 241 CLR 118, which outline the criteria for summarily dismissing a claim under section 31A of the Federal Court of Australia Act.

The Court found that the primary judge should not have dismissed Sims' claim as an abuse of process, as the claims extended beyond the contractual basis pleaded in the Supreme Court. The Court acknowledged that the claims in the Federal Court included pleas based on restitution, unjust enrichment, and misrepresentation. The Court held that it was arguable that the primary judge erred in categorising all claims as depending on an enforceable promise by Chong to Sims. The Court also noted that the statement of claim in the Federal Court accommodated the assertion that Chong failed to provide advice about alternative bases for the claim. The Court concluded that the case was not appropriate for summary judgment and that the primary judge should not have dismissed the claim on those grounds.

The Court granted Sims leave to appeal and allowed the appeal, setting aside the orders made on 3 October 2014. The matter was remitted to the primary judge for further hearing, with the respondent to pay Sims' costs of the application for leave to appeal and the appeal. The Court noted that the statement of claim may require amendment and better particularisation and that the costs of the interlocutory application should be decided in conjunction with any application to amend the statement of claim.

Orders

Orders of the court

1. Leave to appeal from the Orders made on 3 October 2014 in Action WAD 116 of 2014 is granted.

2. The appeal is allowed and the Orders made on 3 October 2014 are set aside.

3. The application in Action WAD 116 of 2014 is remitted for further hearing and determination, including as to the costs of the application made on 20 June 2014 to strike out the claim.

4. Costs of the application and the appeal be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This was not an appropriate case to enter summary judgment on the pleadings. There will no doubt be cases where it is appropriate to do so: see eg the observations of Barrett JA in Donnellan at [260]-[263] and applied in Bolt v Carter [23012] NSWCA 89. The pleadings in that case readily identified the scope of the impugned conduct.CONCLUSION We therefore grant the appellant leave to appeal and allow the appeal and set aside the orders made on 3 October 2014. The matter should be remitted to the primary judge for further hearing. Hopefully, having regard to the difficulties which the primary judge had in addressing and identifying the appellant’s points, and the benefits apparent from the assistance of counsel in this matter, he will be legally represented as the matter proceeds. As we have also remarked, the statement of claim clearly requires amendment and better particularisation. It, or parts of it, may not survive a further application to be struck out because it (or parts of it) when refined may clearly assert conduct or omissions which is or are within the immunity or for other proper reasons. That is a matter for the primary judge. The respondent should pay to the appellant his costs of the application for leave to appeal and the appeal. We do not deal with the costs of the interlocutory application before the primary judge, as in our view, they ought to be decided in conjunction with any application to amend the statement of claim.

Ratio Decidendi

Legal Principle Established

Spencer v Commonwealth (2010) 241 CLR 118 explained the nature of the judgment to be made when deciding whether summarily to dismiss a claim under s 31A of the FCA Act: see per French CJ and Gummow J at [25] and per Hayne, Crennan, Kiefel and Bell JJ at [51]-[60], especially at [58]-[60]. There was no dispute about those principles. It is necessary to give proper effect to the expression in s 31A that the Court must be satisfied that the appellant had no reasonable prospect of successfully prosecuting the claim.CONSIDERATION It is not necessary to say a great deal about the first ground of appeal. That is because the respondent accepts, in the light of the written submissions made by the appellant, that the primary judge should not have dismissed the claim on that ground. It is, of course, incumbent upon the Court to be satisfied that arguable error is demonstrated on the part of the primary judge: Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101; [2013] FCAFC 123; Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; Commonwealth Bank of Australia v Walker (2012) 289 ALR 674. In our view, it is arguable that the primary judge erred in striking out the claim as an abuse of process, as acknowledged by the respondent through counsel. The short point is that the statement of claim in this Court extended beyond the claim pleaded in the WA claim against Suda solely in contract, namely to include pleas based upon restitution or unjust enrichment. It also included the claims concerning the conduct leading to, and maintaining, the retainer. It is fair to say that those claims were not well expressed, and to acknowledge (as does the respondent) that the full understanding of the scope of the appellant’s claims in his statement of claim is assisted by counsel now appearing for the appellant. They have given a much clearer focus to his statement of claim than, it appears, the appellant was able to do at first instance. It is not necessary for this purpose to refer in detail to the statement of claim. It is further considered when considering the second ground of appeal. We observe that, as the primary judge said, the pleading against Suda in the WA claim was solely a contractual one. However, we consider (as the respondent accepts) that it was arguably erroneous to categorise all the appellant’s claims against the respondent as depending on him establishing in the proceeding in this Court that there was an enforceable promise made by Suda to the appellant. The statement of claim in the proceeding in this Court arguably accommodates the assertion that his claim against the respondent is because there was no advice given about, and were no claims made in, the WA claim for unjust enrichment or for restitution or for a form of quantum merit. It also appears to make the statutory claim under s 18 of the ACL that the respondent, at the time of her engagement, misrepresented her professional capacity to take proper instructions and to conduct appropriately the claim then proposed against Suda, including giving proper advice about the alternative bases on which such a claim might be pursued.