Smith v Jones Mitchell Lawyers (A Firm)

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SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Jones Mitchell Lawyers (A Firm) [2019] QSC 164

PARTIES:

Robyn Gaye Smith

(plaintiff)

v

Jones Mitchell Lawyers (A Firm)

(defendant)

FILE NO:

BS 9197 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

27 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2019

JUDGE:

Brown J

ORDER:

The orders of the Court are:

1.   The application is dismissed.

2.   I will hear the parties as to costs.

And the Court directs that:

1.    The parties liaise with the Associate to Justice Brown to fix a date for a hearing as to costs if the order cannot otherwise be agreed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – COUNSEL AND CLIENT – NEGLIGENCE – IMMUNITY FROM SUIT – where the defendant was retained by the plaintiff to assist her to obtain a binding and enforceable settlement with her former husband – where the plaintiff contends the defendant was negligent and breached the parties’ contract in providing her with mediation advice and compromise advice as a result of which she entered an agreed property settlement with her former husband – where after the settlement agreement was reached a registrar of the Federal Magistrates Court made consent orders at the request of the plaintiff and her former husband under s 79 of the Family Law Act 1975 (Cth) giving effect to the agreement – where the defendant contends the making of the orders itself required the resolution of issues by the exercise of judicial power and any claim in respect of the work done leading to the settlement is therefore barred by advocate’s immunity – whether advocate’s immunity extends to negligent advice leading to a settlement even where the settlement is made effective by Court orders requiring the exercise of judicial power

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the defendant applies for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the defendant has a defence of advocate’s immunity which is so strong and complete that the claim ought to be terminated on the basis it has no real prospects of success and the matter should not proceed to trial

Family Law Act1975 (Cth), s 79, s 90C

Uniform Civil Procedure Rules 1999 (Qld) r, 293

Attwellsv Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, considered

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202, cited

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, cited

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, applied

Giannarelli v Wraith (1988) 165 CLR 543, cited

Goddard Elliott (a firm) v Fritsch [2012] VSC 87, considered

Harris v Caladine (1991) 172 CLR 84, considered

In the Marriage of Hickey (2003) 30 Fam LR 355, applied.

Kelley v Corston [1998] QB 686, cited

Kendirjian v Lepore (2017) 259 CLR…

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Details
Case
[2019] QSC 164
Decision Date

CaseChat Overview and Summary

In Smith v Jones Mitchell Lawyers (A Firm), the plaintiff, Ms Smith, alleged that the defendant, Jones Mitchell Lawyers, was negligent in providing her with mediation and compromise advice during property settlement negotiations with her former husband. The advice was said to be negligent, resulting in Ms Smith entering into a property settlement agreement that she claims was disadvantageous to her. Following the agreement, a registrar of the Federal Magistrates Court made consent orders under section 79 of the Family Law Act 1975 (Cth), formalising the settlement. Jones Mitchell Lawyers contends that advocate’s immunity, a doctrine protecting lawyers from liability for advice given during litigation, bars Ms Smith’s claim. This immunity, according to Jones Mitchell Lawyers, extends to the advice provided even though the settlement was formalised by court orders, which required judicial input. The central issue before the court was whether advocate’s immunity could be invoked to bar Ms Smith’s claim for negligent advice, even when the settlement agreement was formalised by court orders.

The court considered the principles of summary judgment and whether Jones Mitchell Lawyers had demonstrated that Ms Smith’s claim had no real prospect of success. According to established case law, summary judgment should only be granted if it is clear that the claim will fail as a matter of law, assuming the plaintiff’s pleaded facts are established. Jones Mitchell Lawyers argued that advocate’s immunity was a complete bar to Ms Smith’s claim, but Ms Smith contended that factual issues needed to be determined to resolve the application of advocate’s immunity. The court had to decide whether the matter could be resolved as a matter of law without a trial, given the complexity of the legal issues involved.

The court determined that the issue of whether advocate’s immunity applied in this context was not straightforward and involved significant legal questions that needed to be resolved through a trial. The court found that it could not be satisfied to the required degree of certainty that advocate’s immunity applied as a complete bar to Ms Smith’s claim. Consequently, the application for summary judgment was dismissed, and the court directed the parties to liaise regarding costs. The court also instructed that if the parties could not agree on costs, they should fix a date for a hearing on costs with the assistance of the Associate to Justice Brown.

Orders

Orders of the court

The orders of the Court are:

1. The application is dismissed.

2. I will hear the parties as to costs.

And the Court directs that:

1. The parties liaise with the Associate to Justice Brown to fix a date for a hearing as to costs if the order cannot otherwise be agreed.

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

The question which falls to be determined by this Court is whether it can be satisfied to the high degree of certainty required that advocate’s immunity applies and acts as complete bar to the claim by Ms Smith.Legal principles: summary judgment The principles of summary judgment are well-established and uncontroversial. For summary judgment to be granted, Jones Mitchell must satisfy the Court that the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim, that a trial is unnecessary and that it is better to end proceedings than proceed to a contest. The Court should not decide the issues raised in proceedings in a summary way except in the clearest of cases. In Deputy Commissioner of Taxation v Salcedo,[2] Williams JA (with whom McMurdo P and Atkinson J agreed) stated:“… ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at trial; if that is established then the matter must go to trial.”[2] [2005] 2 Qd R 232 at [17]. In the present case, Jones Mitchell contends that advocate’s immunity bars the agreed property settlement claim, assuming the facts as pleaded on behalf of Ms Smith are established such that the question to be determined is one of law.[3] [3] See, for example: Ligon Sixty-Three v ClarkeKann [2015] QSC 153 at [36], in which McMurdo J refused an application for joinder of the solicitors on the basis that the immunity would apply if the pleaded facts were established. Ms Smith submits, however, that there are factual matters which have to be tried in order to determine the application of advocate’s immunity in the present case, which she contends is uncertain. In Raging Thunder Pty Ltd & Anor v Bank of Western Australia Ltd, Applegarth J stated:[4]“[14] If that demanding criterion in the first limb of r 293(2) is satisfied, then in a matter in which the facts are not in contention, the second limb also may be satisfied. There may be no need for a trial because, even assuming in the plaintiff’s favour that it will prove the facts pleaded by it, its claim will fail as a matter of law. If the claim is precluded as a matter of law, a trial may not be needed, and will be productive of unnecessary costs. [15] In some cases, the extent and complexity of questions of law may warrant a trial of those issues. In other cases, where the facts are not in dispute and the rights of the parties turn upon questions of law, the Court may give summary judgment even where the point of law is difficult.” (footnotes omitted)[4] [2012] QSC 329 at [14]-[15].The pleaded case The following matters are pleaded in the Further Amended Statement of Claim which, for the purposes of this application for summary judgment, may be treated as uncontroversial.

Ratio Decidendi

Legal Principle Established

Section 79 of the Family Law Act relevantly provides:“79 Alteration of property interests (1) In property settlement proceedings, the court may make such order as it considers appropriate… (2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4) in considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and (e)the matters referred to in subsection 75(2) so far as they are relevant; and (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.” The Family Court of Australia considered the requirement that an order be “just and equitable” in In the Marriage of Hickey.[29] The Court in that case identified that the preferred approach was to follow four steps:[30]“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the court should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.” (internal references omitted)[29] (2003) 30 Fam LR 355. [30] (2003) 30 Fam LR 355 at [39].