Thorpe v NK Ceilings (1992) Pty Ltd - [2009] WADC 162

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THORPE -v- NK CEILINGS (1992) PTY LTD [2009] WADC 162

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 12 OCTOBER 2009

DELIVERED : 22 OCTOBER 2009

FILE NO/S: CIV 1994 of 2006

BETWEEN: ANDREW CECIL THORPE
Plaintiff
AND
NK CEILINGS (1992) PTY LTD (ACN 057 779 978)
Defendant

Catchwords:

Practice and procedure - Pleadings - Estoppel - Advocate's immunity

Legislation:

Legal Practice Act 2003 (WA) s 230, s 231

Result:

Application for leave to substitute defence successful

Representation:

Counsel:

Plaintiff: Mr W J Chesnutt
Defendant: Mr A R MacPherson

Solicitors:

Plaintiff: B W Duckham & Co
Defendant: Hotchkin Hanly

Case(s) referred to in judgment(s):

Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82
Carey v Wojtowicz Kelly Legal [2009] WASC 259
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [2006] WASC 24
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Giannarelli v Wraith (1988) 165 CLR 543
Hooker Corporation v Commonwealth (1986) 65 ACTR 32
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Kimberley Downs Pty Ltd v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Macmahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271
May v Thomas [2008] WASCA 215
Neilson v City of Swan [2006] WASCA 94
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Sinclair v James [1894] 3 Ch 554
Southern Equities Corporation v WA Government Holdings Ltd (No. 2) (1993) 10 WAR 351
Staley v Pivot Group Pty Ltd [2009] WASC 204
Thorpe v N K Ceilings (1992) Pty Ltd [2007] WADC 41
Thorpe v N K Ceilings (1992) Pty Ltd [2008] WADC 5
Vero Insurance Ltd v Harden-Jones & Anor [2007] WADC 210
Youlden Enterprises Pty Ltd v Heath Solutions (WA) Pty Ltd (2006) 33 WAR 1

PRINCIPAL REGISTRAR GETHING: The application before me is by the defendant for leave to further amend the defence and counterclaim.
The action has a long and unfortunate history. The original defence and counterclaim was filed on 9 November 2006. This was in response to the statement of claim indorsed on the writ which was filed on 16 October 2006.
On 6 November 2006 the defendant filed an application for summary judgment. This was heard on 23 February 2007 and ultimately dismissed by orders made on 3 April 2007. The reasons for this decision are reported as Thorpe v N K Ceilings (1992) Pty Ltd [2007] WADC 41.
On 1 December 2006 the plaintiff filed an application to strike out the defence. This application was listed for substantive hearing on 28 May 2007, having been in abeyance while the summary judgment application was determined. On 24 May 2007, the defendant filed a minute of amended defence, set off and counterclaim. At the hearing on 28 May 2007, the Court accepted the plaintiff's submission that there were defects with the minute filed 24 May 2007. The learned Deputy Registrar adjourned the application and gave the defendant 28 days to file a further minute.
On 4 July 2007, the defendant filed a further minute of proposed amended defence, set off and counterclaim. The plaintiff objected to this minute and a further substantive hearing took place on 17 July 2007. On that occasion, the learned Deputy Registrar struck out the then current version of the defence and counterclaim, and declined to allow the defendant to amend in terms of the minute filed 4 July 2007.
The defendant was given leave to file and serve a substituted defence and counterclaim. On 21 August 2007 the defendant filed a substituted defence and counterclaim. On my reading of the court file, this document is the current filed version of the defence and counterclaim.
By application dated 14 September 2007, the plaintiff again sought to strike out the defence and counterclaim. For reasons that are not apparent to me from a review of the file, an identical application was filed on 4 December 2007.
The strikeout application was heard on 6 December 2007, before Deputy Registrar Harman. The learned Deputy Registrar heard the application and gave short ex tempore reasons accepting the plaintiff's submissions that there were deficiencies in the substituted defence and counterclaim filed 21 August 2007. The learned Deputy Registrar gave the defendant the option to re-file, failing which he would provide detailed reasons for decision. This option was apparently not taken up and the learned Deputy Registrar delivered reasons for accepting the plaintiff's submissions in relation to the deficiencies in the substituted defence and counterclaim. These reasons are reported as Thorpe v N K Ceilings (1992) Pty Ltd [2008] WADC 5.
On 23 January 2008, the defendant was given leave to file and serve a minute of amended or substituted defence and counterclaim by 7 March 2008. The application was relisted to a further hearing on 31 March 2008. On that occasion, the time within which the defendant had to file the amended or substituted defence and counterclaim was extended a further 14 days from 31 March 2008. A Minute of Further Substituted Defence, Set-Off and Counterclaim was filed on 14 April 2008 ("Minute").
On 29 July 2009, the plaintiff's solicitors wrote to the court requesting that its application dated 4 December 2007 be relisted for hearing. It was listed in Registrars Chambers on 17 August 2009, at which time it was listed for a special appointment on 12 October 2009. This is the hearing to which these reasons relate.
The plaintiff filed an affidavit dated 9 October 2009 setting out the chronology and dealing with the issue of delay. From that affidavit it appears that between when the Minute was filed, 14 April 2008, and when the current strikeout application was relisted, 30 July 2009, there was spasmodic correspondence between the plaintiff and the defendant about the Minute. The plaintiff raised deficiencies with the Minute and the defendant sought to refute those deficiencies.
I will return to the question of delay and prejudice at the conclusion of these reasons when dealing with discretionary considerations.

The present application

Although the present application involves a relisting of the plaintiff's application to strikeout the substituted defence and counterclaim, for all practical purposes, I have treated the application as being an oral application by the defendant to substitute its defence and counterclaim in terms of the Minute.
There appears to be some confusion as to whether there is currently a valid defence and counterclaim on file. The orders made on 6 December 2007 do not make expressly provide that the then current defence and counterclaim - that filed on 21 August 2007 - be struck out. This appears to be because the parties did not actually seek this order as it was clear from the decision of the learned Deputy Registrar that had such an order been sought it would have been granted.
Be that as it may, it does not seem to me to be of much consequence. For the reasons set out in the decision of the learned Deputy Registrar reported as Thorpe v N K Ceilings (1992) Pty Ltd [2008] WADC 5, I would, if needed, have made an order formally striking out the substituted defence and counterclaim filed 21 August 2007.
The substantive issue is whether the defendant ought to have leave to file and serve a substitute defence and counterclaim in terms of the Minute. On this, the defendant bears the onus, the plaintiff having been successful in establishing deficiencies in the substituted defence and counterclaim filed 21 August 2007.

Relevant law

In the circumstances of the present case, it is instructive to note the comments of his Honour the Chief Justice on the function of pleadings and the approach which the Court should take to the resolution of interlocutory disputes. In the decision in Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82, his Honour states (at p 84):
"In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained."
His Honour the Chief Justice makes a similar comment in Youlden Enterprises Pty Ltd v Heath Solutions (WA) Pty Ltd (2006) 33 WAR 1 at [2], stating:
"In many cases, the time and expense involved in the consideration and resolution of the interlocutory dispute is entirely disproportionate to its significance to the just and effective resolution of the case as a whole by mediation or trial."
There are similar comments by Kenneth Martin J in Staley v Pivot Group Pty Ltd [2009] WASC 204, at [5]-[6] and by Templeman J in Macmahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271, at [11]-[26].
These concerns are entirely apposite to the present case.
As I have noted, the present application is in effect an oral application by the defendant for leave to substitute the defence and counterclaim. The principles relating to amendment of pleadings were summarised by Newnes AJA in May v Thomas [2008] WASCA 215 in the following terms (at par 33-34):
"The relevant principles to be applied on an application to amend a pleading are well-known. In general, a party should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause an injustice to the other party which could not be adequately remedied, for instance by an order for costs: Cropper v Smith (1884) 26 Ch D 700, 710; Shannon v Lee Chun (1912) 15 CLR 257, 260 - 261; Clough v Frog (1974) 4 ALR 615, 618; The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154.
The party seeking the amendment bears the burden of persuading the court that the amendment will not cause irremediable prejudice to the other party: Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; McKenzie v Commonwealth of Australia [2001] VSC 361 [22] - [23]; Burk v Commonwealth of Australia (No 3) [2004] VSC 210. However, the party opposing the amendment ordinarily bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party; the non-existence of prejudice is difficult to prove, so that in practice in the latter circumstances an evidential burden is borne by the party resisting the amendment: Hancock Shipping Co Ltd (1030). But it is not sufficient for a party to rely on prejudice which results from an unreasonable act or omission on the part of that party: Steward v North Metropolitan Tramways Co (1886) 16 QBD 556, 559 - 560; Wilson v Grimwade [1995] 2 VR 628, 632."
A further consideration is that the Court will not grant leave to a party to make an amendment which does not disclose a reasonable cause of action: Sinclair v James [1894] 3 Ch 554 at 557. Neither will the court grant leave to make an amendment which could be struck out as defective on any of the grounds set out in Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(b) to (d): Hooker Corporation v Commonwealth (1986) 65 ACTR 32 at 38.
The principles relating to pleadings challenges are conveniently summarised by Master Newnes (as his Honour then was) in Frank Jasper Pty Ltd v Deloitte ToucheTohmatsu (A Firm) [2006] WASC 24 at [11] – [13], in the following terms:
"In determining the adequacy of a pleading it is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517; Dare v Pulham (1982) 148 CLR 658 at 664. A pleading may therefore by struck out where it is vague, ambiguous or pleaded at too great a level of generality so as to leave the other party in doubt as to how to respond to the pleading: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 413; Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J.
The application of those principles, and the rules as to pleading contained on O 20 of the Rules of the Supreme 1971, in any particular case invariably involves matters of judgment and degree. The approach to be taken to objections to pleadings, or proposed pleadings, must be directed to the attainment of the objectives set out in O 1 r 4B. Such an approach requires a degree of flexibility that may not always be consistent with the practices of earlier times. In that connection, in my respectful view, the comments of Lockhart J in Australian Competition & Consumer Commission v Golden West Pty Ltd & Geraldton Telecasters Pty Ltd [1997] FCA 792 are apposite. His Honour said:
'It is important that I say something about motions to strike out statements of claim in the conduct of modern litigation. Today, courts are playing an increasingly active role in case management. Motions to strike out pleadings are matters of practice and procedure. In its role of case management, courts devise various procedures to overcome deficiencies in pleadings other than by simply ordering that the offending paragraphs be struck out. Sometimes it is appropriate to strike them out, sometimes not. On some occasions it is better for the court to direct the applicant, whose statement of claim is under challenge, to furnish particulars or to file and serve affidavits to show that there really are facts which can be proved and which, if proved, would support the general statements made in the statement of claim. This was the course which I took in Trade Practices Commission v Australian Iron and Steel Pty Ltd (1990) 22 FCR 305, a practice which other judges adopt from time to time. This is not, of course, intended to be a substitute for a defective pleading in every case because, as is well known, pleadings must assert basic or constitutive facts, not the evidence by which they are to be proved. But case management is a sensible and flexible thing. It must not be unduly circumscribed.'
The question of whether a pleading is so defective that it should be struck out is not, therefore, to be answered by any mechanical application of the rules of pleadings. It is generally to be answered by whether or not the pleading serves the fundamental objective of pleadings and whether any significant deficiencies in it can adequately be overcome by the provisions of particulars or by some other means. While it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleadings is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of pleading."
Where the pleading is sought to be stuck out on the basis that it disclosed no reasonable cause of action, great care must be exercised to ensure that a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal; General Steel Industries Inc v Commissioner for Railways (NSW)(1964) 112 CLR 125, 130. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out: Kimberley Downs Pty Ltd v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986; Neilson v City of Swan [2006] WASCA 94 at [18]. Moreover, and importantly for present purposes, the authorities establish that the Court at first instance should be particularly astute not to risk stifling the development of the law by summarily terminating actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373; Neilson (supra) at [18].

Issues for determination

The plaintiff's claim in the action is for the cost of services provided by him as a legal practitioner under a retainer. The plaintiff pleads that in May 2002 he was retained by the defendant to conduct an action on its behalf in the Supreme Court. He rendered an account in November 2004 ("the November account") for his work and was ultimately not paid. He claims by way of relief payment of the November account. The plaintiff was suspended from practice on 20 September 2004. As an alternate claim, the plaintiff pleads that if he is not able to recover the outstanding amount of his legal costs by reason of Legal Practice Act 2003 (WA) ("LPA") s 230, that he is nonetheless entitled to a reasonable remuneration for his work.
In the Minute, the defendant relevantly asserts that:
(a)the amounts claimed were in excess of the fee cap and hourly charge out rates agreed in the retainer agreement;
(b)the plaintiff breached his duties of reasonable care and skill to the defendant in the manner in which the writ and statement of claim were drafted in the Supreme Court proceedings;
(c)the plaintiff is estopped from enforcing payment of the November account the subject of the claim;
(d)the plaintiff is prohibited from enforcing the account the subject of the claim by reason of LPA s230.
The plaintiff's concerns with the Minute are that:
(a)it does not disclose a reasonable cause of action in relation to the breach of duty of care;
(b)in any event, the breach of duty of care pleaded falls within the advocate's immunity;
(c)it does not disclose a reasonable cause of action in relation to the estoppel plea;
Each is dealt with below. There are also number of further miscellaneous pleadings issues taken.

Breach of duty of care

The plaintiff asserts that the plea of a duty of care in the retainer agreement in par 4 and par 5 of the Minute does not support the breach of duty pleaded in pars 21 and 22.
In par 4 of the Minute the defendant pleads, among other things, that under the retainer agreement the plaintiff would act for and represent the defendant in a proposed action in the Supreme Court by the defendant against Diploma Constructions Pty Ltd ("Diploma"). In par 5 the defendant pleads that the retainer was subject to an implied term that the plaintiff would exercise reasonable care and skill in the provision of all legal services for the defendant at all times during the continuance of the retainer. A writ and statement of claim were subsequently filed on behalf of the defendant in the action against Diploma. The defendant had to subsequently instruct a second firm of solicitors to amend the indorsement and statement of claim. The loss claimed is the cost of having the amendments made.
Paragraph 21 contains a plea that, by reason of the retainer along with various instructions given to the plaintiff set out in pars 18, 19 and 20 of the counterclaim:
"The plaintiff was under a duty to (inter alia) prepare, settle and file an indorsement of claim, and subsequently a statement of claim, correctly identifying and setting out … the defendant's causes of action against Diploma; and … the material facts relevant to those causes of action."

Paragraph 22 of the Minute sets out some 30 specific matters which the defendant alleges the plaintiff was under a duty to plead in the indorsement of claim and the statement of claim. By way of an example, par 22.12 of the Minute provides that:
"In the premises of the duty pleaded at paragraph 21 of the counterclaim, the plaintiff was under a duty to plead (inter alia) … in the statement of claim, Diploma requested in writing variations to the works, confirmed in a variation claim by the defendant, in respect of which the price was agreed, and in respect of which the defendant had performed the works and was entitled to payment."
Paragraph 23 of the Minute contains a plea that in breach of the duty of care pleaded in pars 21 and 22, the plaintiff failed to plead in the indorsement of claim and statement of claim the 30 matters set out in par 22.
The plaintiff complains that nowhere is there an allegation made in the Minute that the plaintiff was ever instructed to advise generally as to the possible claims the defendant might have against Diploma. The plaintiff further notes that at the time the retainer was entered into it was for a proposed action, not one that was already underway. He submits that this omission renders the Minute embarrassing.
In par 4 of the Minute it is pleaded that the plaintiff would act for and represent the defendant in the action against Diploma up to and including the earlier of final judgment in the action or settlement of disputes between the defendant and Diploma. The pleaded retainer clearly extended to the conduct of the action. The question of whether or not the defendants ought to have pleaded a breach of duty by the plaintiff in relation to advice given on the proposed action is a tactical one for the defendant. It has chosen not to make such a plea. Rather, it has focussed on the drafting of the statement of claim. The failure to plead a cause of action in relation to advice does not render the Minute defective.
The plaintiff also complains that the pleading in par 23 is prolix, and could have been dealt with in a more concise manner. The defendant responded in submissions that an earlier version of the defence and counterclaim did have a more summary pleading, but that this was the subject of criticism by the then counsel for the plaintiff at an earlier stage, and, in response, the paragraphs had been amended to their current form. To my mind, the length of par 23, some three A4 pages, is occasioned by the number of defects alleged in the indorsement and the statement of claim. They are concisely set out in 30 numbered paragraphs, with sub‑paragraphs on occasion. The plea is detailed rather than prolix.
The plaintiff further complains that to the extent that par 23, setting out alleged breaches, refers to alleged failings regarding the indorsement of claim, these should be struck out. The plaintiff submits that an indorsement of claim is not supposed to comprise a detailed pleading, that being the function of the statement of claim. The indorsement is intended only as a general description of the nature of the claim and need only be wide enough to encompass the matters specifically alleged in the statement of claim. The plaintiff further submits that par 23 of the Minute does not assert that the wording of the indorsement was in fact insufficient to allow any particular matter to be pleaded in the statement of claim, and to that extent is embarrassing.
To my mind, par 23 makes the alleged deficiencies in the indorsement clear. If the plaintiff wishes to assert that the indorsement was wide enough to encompass any causes of action which the court finds he ought to have pleaded in the allegedly defective statement of claim, then it is open for this to be dealt with in the reply. It is not a basis to strike out all or part of par 23.
I am of the view that the pleading of breach of duty of care in pars 4, 5, 21, 22 and 23 of the Minute very clearly sets out the basis for the duty of care, its scope and how it is said to have been breached. It discloses a reasonable cause of action, and does so in a manner which complies with the technical rules of pleading as well as the substantive matters referred to by the Chief Justice in Barclay Mowlem (supra) and Youlden (supra). The plaintiff knows the case he has to meet.

Application of the advocate's immunity

The plaintiff's second broad ground of challenge is that even if the pleading in relation to breach of duty of care does satisfy the rules in relation to the expression of pleadings, they did not disclose a reasonable cause of action, and ought to be struck out. The plaintiff submits that the matters set out in pars 21 and 22 of the Minute could not give rise to a cause of action by reason of the advocate's immunity from suit identified in Giannarelli v Wraith (1988) 165 CLR 543 and D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. The defendant need only show that the point is arguable for the pleadings to remain.
The defendant raised a preliminary point that this issue had been raised in written submissions filed for the hearing before Deputy Registrar Harman on 6 December 2007, but had not been pressed by counsel for the plaintiff (different counsel from the hearing before me) in the hearing before the Deputy Registrar. It seems to me that as the point was not the subject of a determination by the Deputy Registrar, that I ought to deal with it.
The extent of the advocate's immunity was recently considered by the Court of Appeal in Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85. In that case, at first instance Master Sanderson struck out certain paragraphs of the plaintiff's re-amended statement of claim on the ground that those paragraphs disclosed no reasonable case of action by virtue of the advocate's immunity. In a joint judgment, Steytler P and Newnes AJA granted leave to appeal and allowed the appeal.
The action in Alpine Holdings (supra) arose out of earlier proceedings by the appellants against Warwick Entertainment Centre Pty Ltd ("Warwick") for damages for misleading and deceptive conduct in relation to a lease of certain premises by the Alpine Holdings Pty Ltd ("Alpine"). The respondent, Feinauer, was the appellants' solicitor in the action. The appellants were successful at trial and awarded damages in excess of $1 million. On appeal the amount of the damages awarded by the trial judge was substantially reduced to an amount under $200,000.
There were two claims in the statement of claim struck out as being within the scope of the advocate's immunity. The first was a claim that prior to the trial of the action against Warwick, the respondent engaged in misleading and deceptive conduct in respect of the amount of damages to which the appellants would be entitled in the action ("first claim"). The second was a claim that the respondent was negligent and engaged in misleading and deceptive conduct in respect of advice he gave to the appellants in relation to an offer of settlement made by Warwick after the trial but before Warwick's appeal was heard ("second claim"). As a result of the advice said to have been given, the appellant's did not accept a settlement offer well in excess of the damages awarded by the Court of Appeal.
The Court of Appeal considered in detail the authorities relied on by the parties in the application before me, including the High Court decisions in Giannarelli and D'Orta-Ekenaike (supra). In relation to the second claim, concerning the settlement offer, the Court of Appeal stated ([84]‑[86]):
"Having regard to the present state of the authorities, we do not consider it can be said with confidence where the line is to be drawn as to the application of the immunity in relation to advice given in connection with the settlement of legal proceedings. That is perhaps not surprising. As Priestley JA observed in Keefe v Marks, the rule in relation to out of court work is a relative one and the degree of connection is a matter of assessment. Hard and fast distinctions are therefore likely to be elusive. What is clear, however, is that the justification for the immunity is the principle that once a controversy is resolved a party is not entitled to re-open it, except in the few narrowly defined circumstances referred to by the High Court in D'Orta‑Ekenaike, and it is to that end that the immunity is directed.
Turning then to the specific issues that arise on this appeal, it is clear that a case is not to be summarily dismissed unless there is a high degree of certainty that it would fail if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552, 576. We do not consider there is that degree of certainty in this case.
As matters stand, it is, in our view, arguable that the second claim does not fall within the immunity. In the first place, the advice in relation to the settlement was arguably not connected with 'work done out of court which leads to a decision affecting the conduct of the case in court' or 'work intimately connected with work in court'. That is, it did not affect the conduct of the appeal in court, nor was it connected with any work that would or might be done in court, except in the general sense that it determined whether or not there was ultimately any litigation to proceed to court. In that sense, however, it might be thought not to differ in principle to advice on the prospects of success before action on which a decision is based as to whether or not to commence proceedings. We do not think it could be suggested in light of the modern authorities that advice of the latter kind would attract the immunity.
It is also arguable, having regard to the justification for the immunity as described by the majority in D'Orta-Ekenaike, that there is no occasion for the application of the immunity in the present case as the claim does not involve any derogation from, or undermining of, the principle of the finality of court decisions by requiring the re-opening of earlier litigation. It is not alleged that the decision of the Court of Appeal was wrong or that the negligence of the defendant brought about a decision of the court that would otherwise have been different. The claim does not require reconsideration of the correctness of the decision of the Court of Appeal. That decision is simply the basis upon which the claim is founded."
In relation to the first claim, concerning the way in which damages were claimed, the Court of Appeal stated ([90]-[92]):
"In respect of the first claim, for similar reasons to those applying to the second claim, we do not consider it can be said that the formulation of the appellants' claim for damages was a matter that plainly fell within the immunity.
It is not difficult to envisage situations where the manner in which a case is pleaded would affect the way the case was conducted in court, so that any claim that an advocate was negligent in failing to plead the case differently would involve re-opening the earlier decision in an endeavour to prove that the result would have been different.
Where, however, it is alleged that the advocate advised the client to pursue, and pleaded on the client's behalf, a cause of action or a head of damage which as a matter of law was doomed to failure - and which duly failed - it is not so easy to see that a claim for negligence against the advocate involves the re-opening of the original controversy or touches upon matters which fall within the principles identified by the High Court as underlying the immunity."
The decision in Alpine Holdings was followed by Master Sanderson in Carey v Wojtowicz Kelly Legal [2009] WASC 259.
The decision in Alpine Holdings is of direct application to the present case. The claims in pars 4, 5, 21 and 22 of the Minute concern the formulation of the defendant's claim. There is a lower risk in this case than in Alpine Holdings that the determination of the action will involve re-opening any final decision in the Supreme Court action (if there is one, a point on which there was no evidence before me). This is because the issue for the trial Judge on the pleadings is limited to whether the statement of claim filed by the plaintiff on behalf of the defendant was defective in light of the statement of claim subsequently filed and relevant factual background. The damages claimed are limited to the cost of rectifying the allegedly defective statement of claim. There is no claim for damages for any consequential impact of the alleged deficiencies on the subsequent conduct of the Supreme Court action. I do not consider that it can be said that this claim is a matter that plainly falls within the advocate's immunity.
The plaintiff has not met the high threshold that must be met for a claim to be struck out as disclosing no reasonable cause of action as set out above. The defendant should be permitted to amend its pleading so that the trial judge can decide all matters in issue between the parties.

Estoppel

The third broad ground of challenge is that the defendant has not pleaded a maintainable estoppel claim The law in relation to promissory estoppel was summarised by Brennan J (as His Honour then was) in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, at 428-429:
"In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise."
The defendant's plea of estoppel is in par 9 of the Minute. The estoppel claims takes as its context par 7 of the statement of claim which is in the following terms:
"The defendant requested itemisation of the November account out‑of-time in or about February 2005 and, after an application to the Supreme Court for an extension of time within which to request itemisation, the Plaintiff agreed to give itemisation and the Defendant agreed to pay the Plaintiff's costs of the defendant's application in the sum of $600."
In response, the defendant pleads the following in par 9 of the Minute:
"9.Except to state that in or around October 2005, the plaintiff and the defendant agreed (inter alia):
9.1the plaintiff would sign consent orders consenting to an extension of time for the defendant to require from the plaintiff an itemisation of the November account under section 231 of the Legal Practices Act 2003;
9.2the plaintiff would provide an itemisation of the November account in accordance with the Legal Practices Act 2003 within 60 days of the defendant's request under section 231 of the Legal Practice Act 2003; and
9.3the defendant would pay the plaintiff $600.00 towards his costs in respect of the Supreme Court proceedings LPA 24 of 2005, such payment to be made in exchange for the itemisation;
the defendant admits paragraph 7 of the statement of claim, and states further that:
9.4in reliance upon the plaintiff's promises set out at paragraphs 9.1 to 9.2 of the defence, the defendant entered into the agreement referred to at paragraphs 9.1 to 9.3 of the defence and further did not proceed with Supreme Court proceedings LPA 24 of 2005;
9.5the plaintiff intended the defendant to rely upon the promises set out at paragraphs 9.1 to 9.2 of the defence;
9.6the plaintiff has failed and refused to:
9.6.1sign consent orders in the terms set out at paragraph 9.1 of the defence; or
9.6.2serve the defendant with an itemised bill containing detailed items in accordance with the Legal Practice Act 2003;
9.7had the plaintiff signed the consent orders referred to in paragraph 9.1 of the defence in accordance with the said agreement:
9.7.1orders in terms of the consent orders would have been made in Supreme Court proceedings LPA 24 of 2005; and
9.7.2the defendant would have required the plaintiff to serve upon it a bill containing detailed items in lieu of the November account, in accordance with, and within the time prescribed by, section 231 of the Legal Practices Act 1003;
9.8upon the event referred to in paragraph 9.7.2 of the defence, by operation of section 231(4) of the Legal Practice Act 2003 the November account would have been of no effect;
9.9if the plaintiff continues to fail and refuse to perform the agreement referred in paragraphs 9.1 to 9.3 of the defence, and claims monies from the defendant, the defendant shall suffer detriment in that the defendant shall lose the benefit of the agreement referred to at paragraphs 9.1 to 9.3 of the defence, namely:
9.9.1loss of the opportunity to obtain from the plaintiff an (sic) bill containing detailed items in lieu of the November account;
9.9.2loss of the opportunity to serve upon the plaintiff written notice of intention to have the said bill containing detailed items taxed, in accordance with, and within the time prescribed by, section 232 of the Legal Practice Act 2003;
9.9.3loss of the benefit of section 231(4) of the Legal Practice Act 2003, under which the November account would have been of no effect;
9.10in the premises, the plaintiff is estopped, and further or alternatively by operation of section 230 of the Legal Practice Act 2003 is prohibited, from enforcing the November account or claiming monies from the defendant."
The defendant takes the preliminary point that the pleading in par 9 of the Minute was in the defendant's previous substituted defence dated 21 August 2007. The present objection was not raised by the plaintiff at any earlier stage. The defendant submits that the plaintiff should be prevented from raising this objection now, relying on the decisions in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 604 and Vero Insurance Ltd v Harden-Jones & Anor [2007] WADC 210 at [10]. In that latter case, the learned Deputy Registrar discussed the decision in Southern Equities Corporation v WA Government Holdings Ltd (No. 2) (1993) 10 WAR 351 on this point.
There seems to be a wide principle and a narrow principle able to be drawn from the decision in Southern Equities Corporation (supra). The wide principle is that it is sufficient that the party has the opportunity to object to the adequacy of a proposed pleading which is before a court to disentitle it from further challenge to that pleading. This would apply in the present case. The narrow principle is that where the court gives leave to a party to amend its pleading, the court will not allow an opposing party to subsequently challenge the adequacy of the pleading. In the present case, I cannot see that the defendant has ever been given leave to amend in terms of a particular minute. It has only ever been given general leave to amend subsequent to issues being identified in a prior minute or filed pleading.
Given the torturous history of this pleading from both the perspective of the plaintiff and the defendant, it seems to me appropriate that, across the board, I focus on the substance of the issues raised and deal with them once and for all. Accordingly, I will proceed on the basis of the narrow principle. In any event, this will cause no prejudice to the defendant as I have ultimately formed the view that the pleading ought to be allowed substantively, with one minor amendment.

The plaintiff submits the whole of par 9 is embarrassing as the matters pleaded cannot give arise to any estoppel. It makes this submission generally, but also on the basis of a number of specific areas of concern.
The first concern is that there is no pleading anywhere in par 9 of the Minute that makes it plain what the Supreme Court proceedings LPA 24 of 2005 was concerned with. In oral argument, it was clear that this action was the "application to the Supreme Court for an extension of time" in par 7 of the statement of claim. Whilst this objection has merit, it can be easily cured by the insertion of a further paragraph into par 9 to the effect that the application to the Supreme Court in par 7 of the statement of claim is Supreme Court proceedings LPA 24 of 2005.
The plaintiff further complains that there is no explanation as to what happened in Supreme Court proceedings LPA 24 of 2005 or about the outcome of the proceedings or even whether it is still on foot. In my view, there is no need for the defendant to refer to this in order to establish an estoppel. If there is some specific aspect of the proceeding which the plaintiff considers relevant, he is able to plead this by way of reply.
The plaintiff next complains that the pleading of the alleged agreement for consent orders is too vague to be sustained. However, it is more specific than the pleading in par 7 of the statement of claim. If there are specific particulars that the plaintiff desires then he may ask for those, as may the defendant of the agreement set out in par 7 of the statement of claim.
The plaintiff complains that there does not appear to be any consideration passing from the defendant to the plaintiff for the making of the alleged agreement. Once again, the pleading in par 9 in the Minute is in considerably more detail than that in par 7 of the statement of claim. Moreover, there is no specific need to plead consideration. It is patent from the face of the agreement set out in par 9 of the Minute that there was a mutual exchange of promises.
The plaintiff next complains that there is no pleading in sub‑paragraph 9.4 that the defendant agreed as part of the alleged agreement not to proceed with Supreme Court action LPA 24 of 2005. Once again, it does not appear to me to be necessary for the defendant to have pleaded this in order to establish the estoppel. If this fact has some particular meaning, then the plaintiff is able to deal with the issue in its reply.
The plaintiff then complains that if there was any such agreement as alleged in par 9, and if it was breached by the plaintiff, the defendant's remedy was to proceed with or renew its application for an extension of time in Supreme Court proceedings LPA 24 of 2005. As pleaded, par 9, says the plaintiff, does not indicate any reason why this was not possible and therefore does not show any detriment to the defendant.
This concern ignores the matter in which an estoppel operates. Whilst it may be the case that the defendant had a remedy to renew its application for an extension of time in the proceedings, the way in which the issue arises in the presence case is defensively in response to the plaintiff's claim for payment of the fees the subject of the November account. The detriment is pleaded in par 9.9. Whether this detriment is sufficient on the facts to establish the offer the estoppel is a question for the trial judge. For the present purposes, a detriment is pleaded, and the plaintiff knows the case it has to meet.
The plaintiff then complains that sub-paragraphs 9.7 and 9.8 plead a hypothetical set of circumstances and not material facts. Whilst that it correct, the only way to plead reliance is, in effect, by hypothetical facts. The nature of the plea for reliance is that it sets out what the party would have done had it not relied on the representations said to found the estoppel.
The plaintiff then complains that none of the matters pleaded in par 9 bring into operation LPA s 230, as set out in par 9.10. The plaintiff submits that par 8.1 of the Minute pleads the date of the November account as being 25 November 2004. The Writ in the action was filed 16 November 2006. There was therefore a bill in existence at the date of the Writ and therefore the section has no application. LPA s 230 provided:
"(1)A legal practitioner must not sue for the recovery of any services, fee, charges or disbursements until a bill for the services, fee, charges or disbursements has been served upon the party charged.
(2)The bill may be –
(a)a bill containing detailed items; or
(b)a bill for a lump sum."
The defendant responds by reference to LPA s 231(4), which provides:
"Upon a requirement being made under subsection (3) the lump sum bill is of no effect except that proceedings for recovery already instituted under section 230 may be continued unless stayed by the court in which those proceedings were instituted …"
In essence, the defendant's case is that had the plaintiff honoured his promise and provided an itemised account shortly after October 2005, the plaintiff, not having then commenced the current action, would not have been able to have commenced an action in relation to the November account, being a lump sum bill. He could only have enforced the taxed itemised bill.
The plea in par 9.10 sets out the consequences which the defendant asserts flow from the estoppel. It ought to be allowed.
There is a further issue in relation to LPA s 230. The defendant has pleaded that at the time the invoices were rendered, the plaintiff was suspended from legal practice. An earlier application by the defendant for summary judgment on this point was refused: Thorpe v N K Ceilings (1992) Pty Ltd [2007] WADC 41. There is a clear issue for consideration by the trial judge as to the effect of the suspension on the plaintiff's ability to recover its fees. The pleading in par 9.10 goes to that effect and ought to be allowed so that the trial judge can decide all matters in issue between the parties.
The plaintiff has not met the high threshold that must be met for a claim to be struck out as disclosing no reasonable cause of action as set out above. The defendant should be permitted to amend its pleading so that the court may decide all matters in issue between the parties.

Miscellaneous challenges

There are then a series of miscellaneous challenges to the Minute. The first is that the allegations concerning the terms of the retainer set out in par 4 of the Minute are at odds with an allegation in par 12 of the Minute claiming that the plaintiff's remuneration is to be calculated "by reference to" the scale. This concern ignores the context of par 12. Paragraph 12 responds to par 10 of the statement of claim. Paragraph 10 is an alternate claim by the plaintiff that if the plaintiff is not able to recover the outstanding amount of his legal fees by reason of LPA s 230, he is entitled to recover reasonable remuneration for the work provided to him by the plaintiff. In this context, a plea by the defendant that, if any such remuneration is to be paid, it is determined by reference to the relevant cost scales, is entirely defensible and appropriate. There is no inconsistency.
The plaintiff then asserts at par 8.3 of the Minute is irrelevant and should be struck at. That paragraph contains a plea "that as at 25 November 2004 and 8 December 2004, the plaintiff was suspended from legal practice". This is relevant to the issue of the application of LPA s 230 and s 231 to the case. It is relevant and should be left.

Discretionary considerations

There have been considerable unexplained delays in the progress of this action. The last substantive step taken was the filing of the Minute on 14 April 2008. It was not until 30 July 2009 that the plaintiff wrote to the Court asking for its strike out application to be relisted for hearing.
The plaintiff asserts that the delays ought to count against the defendant being granted leave to amend. However, it was open to the plaintiff to have applied to have its strike out application relisted much earlier than it did.
The plaintiff has not put on any evidence to the effect that he will suffer any irreparable prejudice by reason of the grant of leave to amend. The action is not close to being listed for trial. For example, discovery is yet to be exchanged. This is not an action in which it "may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates": Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, at [102].
It is appropriate that the defendant have leave to substitute its defence, set-off and counterclaim in terms of the Minute, with one amendment. This is that there should be a new sub-paragraph added to par 9 to the effect that the "application to the Supreme Court" in par 7 of the statement of claim bore the action number LPA 24 of 2005. This should be filed within 7 days.
I will hear from counsel on the question of costs of this application and any reserved costs to date.
Given the age of the action and the delays to date, the action will be moved to docket management. My preliminary views as to the appropriate programming orders are:
(a)within 7 days, the defendant should file and serve particulars of damages complying with 2005 DCR rule 45C;
(b)any requests for further and better particulars of the statement of claim and substituted defence, set-off and counter-claim should be made within 7 days, and answered or object to within a further 7 days;
(c)there should then be a timetable for the plaintiff to file and serve any reply and a defence to counterclaim;
(d)there should also be a timetable for discovery; and
(e)there should be a future directions hearing.
The next effect of the timetable should be that the action is entered for trial before Christmas.
It would be of assistance to me if counsel could provide a minute of agreed orders reflecting the matters set out above.