Toth v Stewart Law Pty Ltd

[2022] NSWCA 85

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Toth v Stewart Law Pty Ltd [2022] NSWCA 85

Hearing dates:

26 May 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Before:

Macfarlan JA at [1];
White JA at [22].

Decision:

Application for leave to appeal dismissed with costs.

Catchwords:

CIVIL PROCEDURE – summary dismissal of proceedings commenced against applicant’s former legal representatives - whether an advocates’ immunity defence can form basis of a summary dismissal application – whether the defence applies to administrative aspects of the retainer

Legislation Cited:

Uniform Civil Procedure Rules 2015 (NSW), rr 13.4, 14.28, Pt 28

Cases Cited:

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Jimenez v Watson [2021] NSWCA 55

Keefe v Marks (1989) 16 NSWLR 713

Rees v Sinclair [1974] 1 NZLR 180

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Category:

Principal judgment

Parties:

Andrew Toth (Applicant)
Stewart Law Pty Ltd (Respondent)

Representation:

Counsel:
A Toth (self-rep)
D Lloyd SC / G Marsden

Solicitors:
Mullane & Lindsay (Respondent)

File Number(s):

2021/365744

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 1522

Date of Decision:

26 November 2021

Before:

Hamill J

File Number(s):

2020/285316

Judgment

1. MACFARLAN JA: The applicant, Mr Andrew Toth, is a self-represented litigant who seeks leave to appeal against a judgment dated 26 November 2021 of Hamill J of the Common Law Division. His Honour granted leave to appeal, but dismissed Mr Toth’s appeal, from an order of 3 September 2020 of Magistrate Longley of the Local Court summarily dismissing proceedings brought by Mr Toth against former legal representatives of his (the respondents).

2. In the statement of claim filed on 9 December 2019, by which he commenced proceedings in the Local Court, Mr Toth claimed damages from the respondents for their alleged negligence in acting as solicitors for him in connection with criminal charges on which he was ultimately acquitted. On 25 February 2020 the respondents filed a defence, relying inter alia upon the principles of advocates’ immunity expounded in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, and a notice of motion seeking summary dismissal of Mr Toth’s proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) (with an alternative prayer for the strike out of the statement of claim pursuant to r 14.28).

3. On 18 May 2020 Magistrate Longley gave judgment, declining to grant the orders sought in the notice of motion and instead granting leave to Mr Toth to file an amended statement of claim.

4. In the amended statement of claim, filed on 15 June 2020, the particulars of negligence appear under four headings, namely, “legal advice”, “lack of preparation”, “breach of the solicitors’ rules” and “contracts (retainers)”. The third category alleges breaches of the “Australian Solicitors’ Conduct Rules” by the respondents to “act in the best interests of a client”, “be honest and courteous”, “deliver legal services competently”, fulfil undertakings given in the course of legal practice, give clear and timely advice, follow a client’s instructions, not act where there is a conflict between the solicitors’ duties and interests and, finally, “ensure completion of the legal services”. The fourth category (“contracts (retainers)”) focused particularly, as did Mr Toth’s submissions before this Court, on an agreement that he said he made with the respondents that he would be able to “ask a lot of questions” and be “hands on” in relation to the criminal proceedings, both of which promises he says the respondents did not fulfil.

5. The amended statement of claim also pleads, and quantifies at a total of $70,000, damages that Mr Toth alleges he suffered as a result of the matters of which he complains. By way of summary of the extended descriptions of those damages, and how they came about, it may be said that they complain of the advice Mr Toth was given and the way in which the criminal proceedings were conducted, and complain that the breaches alleged resulted in him not obtaining legal representation of the nature that he would have wanted.

6. On 14 July 2020 the respondents filed a defence to the amended statement of claim and a further notice of motion again seeking summary dismissal of Mr Toth’s proceedings and, alternatively, that the amended statement of claim be struck out in whole.

7. Like Magistrate Longley, Hamill J found that the respondents had a complete defence to Mr Toth’s claim based on the principles of advocates’ immunity and that the respondents had therefore made good their claim for a summary dismissal of Mr Toth’s proceedings.

8. In his application for leave to appeal to this Court, Mr Toth named the respondent as Stewart Law Pty Ltd, seemingly the owner of the business name Stewart & Associates who were named as respondents in the Local Court. I will continue to refer to the respondents, plural.

9. In his application Mr Toth first complained that the procedure adopted in the Local Court was impermissible. He contended in particular that Magistrate Longley had no authority to conduct a separate hearing as to the efficacy of the advocates’ immunity defence and that there needed to have been a formal order for separate hearing made if that were to occur.

10. The nature of the application heard in the Local Court was however clearly stated in the respondents’ notice of motion filed in that Court on 14 July 2020 (see [6] above). By the motion, the respondents did not seek determination of the advocates’ immunity question as a separate question pursuant to Pt 28 of the UCPR. If they had, it would have been unnecessary for them to meet the high standard for summary disposal of proceedings identified in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [25]. Rather, the issue would have been determined on the balance of probabilities, that is, as a final hearing of part of the proceedings. To Mr Toth’s advantage, the respondents however assumed a higher onus in seeking summary dismissal and Mr Toth conceded in oral argument before this Court that he was aware that the principles in General Steel were applicable to the Local Court hearing.

11. Whilst it is possible, in appropriate circumstances, for an advocates’ immunity defence to be addressed as a separate question under Pt 28, there is no reason why it cannot, as occurred in the present case, form the basis of a summary dismissal application. Indeed, the seminal authority of D'Orta-Ekenaike related to an application made on that basis. Likewise, the recent decision of this Court in Jimenez v Watson [2021] NSWCA 55 dismissed an application for leave to appeal against a summary dismissal on the basis of advocates’ immunity without suggesting that there was anything procedurally inappropriate in what had occurred in the court below.

12. For these reasons, I reject Mr Toth’s procedural complaint, and also reject that he may reasonably have been uncertain as to the nature of the application made against him in the Local Court.

13. Secondly, Mr Toth submitted to this Court that there were some aspects of his Local Court claim that were not precluded by the respondents’ advocates’ immunity defence.

14. In relation to the same argument put to Hamill J, his Honour referred to the statement, approved by the High Court in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52, of McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187 that advocates’ immunity protection:

“… exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way the case is to be conducted when it comes to a hearing.”

15. In addition his Honour referred to the description in D'Orta-Ekenaike at [86] of the immunity applying to:

“… work done in court or ‘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 a court’.”

16. His Honour also referred to Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [38] where the majority referred to the immunity not extending “to acts or advice of the advocate which do not move litigation towards a determination by a court”.

17. It is clear that at least the central aspects of Mr Toth’s claims are answered by the advocates’ immunity defence. In his submissions he sought however to distinguish the advice and court aspects of his relationship with the respondents from the administrative aspects, referring in particular in this context to questions as to what the respondents agreed to do for him and what they were to charge. Likewise, he sought to distinguish from the core of his allegations his complaints that the respondents did not attend and appear for him at his sentencing hearing, that they were discourteous to him, that they were dishonest in not adhering to their promises to him that he would have a “hands on” role and would be entitled to “ask a lot of questions” and that they failed to obtain a copy of a video that might have had some bearing on Mr Toth’s defence, as well as other like matters.

18. In relation to this argument the respondents referred to this Court’s decision in Keefe v Marks (1989) 16 NSWLR 713 where Gleeson CJ said at 717F:

“The statement of claim is expressed in terms which evidence an understanding of the difficulties which might confront the claimant by reason of this immunity, and that no doubt accounts for the pleader's understandable attempt to focus attention upon ‘the conduct of pre-trial work’. However, a reading of the statement of claim as a whole, and of the particulars of the allegations in it, makes sufficiently clear the nature of the complaint which was being propounded against the opponent.”

19. To adopt Gleeson CJ’s words, it is clear from reading Mr Toth’s amended statement of claim “as a whole” that “the nature of the complaint” which is propounded concerns the preparation for, and conduct of, Mr Toth’s defence to the criminal charges. As I see it, the fact that some of the matters alleged (such as the absence of a proper written fee agreement) arguably only have an indirect connection with the criminal proceedings does not mean that they do not have a sufficient connection to attract the advocates’ immunity rule.

20. In any event, determination of the degree of connection of these allegations to the preparation or conduct of the criminal proceedings involves answering questions of fact. Such questions do not ordinarily form a sufficient basis for a grant of leave to appeal to this Court. Moreover, it is not possible to identify any sensible argument that these peripheral matters caused Mr Toth any significant monetary loss, bearing in mind that he was successful in his defence of the criminal charges and paid the respondents only about $1,000 overall for their assistance. Indeed there is force in Hamill J’s conclusion that these matters “do not form part of the damages claimed” (at [91]).

21. For these reasons, Mr Toth’s application for leave to appeal should be dismissed. At their highest his submissions are no more than barely arguable; they in any event raise questions of fact only and, again at best for him, would, if correct, result only in damages that constituted a small proportion of the $70,000 he claimed in his amended statement of claim.

22. WHITE JA: I agree with Macfarlan JA.

Decision last updated: 07 June 2022