Tottle Partners v Lewis
[2007] WADC 47
•4 APRIL 2007
TOTTLE PARTNERS -v- LEWIS [2007] WADC 47
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 47 | |
| Case No: | CIV:1796/2006 | 26 MARCH 2007 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 4/04/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | TOTTLE PARTNERS JANET CAROLYN LEWIS HAMMOND WORTHINGTON |
Catchwords: | Practice and procedure Application to strike out counterclaim Solicitors immunity from suit Principles and extent of |
Legislation: | Nil |
Case References: | D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 Grannarelli v Wraith [1988] 165 CLR 543 Wilson v Carter & 5 Ors; Wilson v Rigg [2005] NSWSC 1351 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JANET CAROLYN LEWIS
Defendant
(BY ORIGINAL ACTION)
JANET CAROLYN LEWIS
Plaintiff by Counterclaim
TOTTLE PARTNERS
First Defendant
HAMMOND WORTHINGTON
Second Defendant
(BY COUNTERCLAIM)
(Page 2)
Catchwords:
Practice and procedure - Application to strike out counterclaim - Solicitors immunity from suit - Principles and extent of
Legislation:
Nil
Result:
Application dismissed
Representation:
Original Action
Counsel:
Plaintiff : No appearance
Defendant : In person
Solicitors:
Plaintiff : McCallum Donovan Sweeney
Defendant : Not applicable
Counterclaim
Counsel:
Plaintiff by Counterclaim : In person
First Defendant : No appearance
Second Defendant : Mr G Pynt
Solicitors:
Plaintiff by Counterclaim : Not applicable
First Defendant : McCallum Donovan Sweeney
Second Defendant : Pynt & Partners
(Page 3)
Case(s) referred to in judgment(s):
D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755
Grannarelli v Wraith [1988] 165 CLR 543
Wilson v Carter & 5 Ors; Wilson v Rigg [2005] NSWSC 1351
(Page 4)
1 DEPUTY REGISTRAR HEWITT: The application before me for determination was brought by the second defendant by a chamber summons filed on 13 February 2007. In that application the second defendant seeks that the counter-claim levelled against it be struck out pursuant to O 20 r 19(1).
2 The applicant second defendant ("Hammond Worthington") is a firm of lawyers and the claim against them relates to their conduct of an action to which the defendant Janet Carolyn Lewis ("Lewis") was a defendant.
3 The facts briefly appear to be that Lewis was a defendant to an action in the Supreme Court of Western Australia brought by one Jason Hall. Mr Hall had also commenced proceedings against the company Sunwise Innovations Pty Ltd and it appears that there were some broad points of similarity between that action and the one he was pursuing against Lewis. Lewis complains that she was advised to consolidate her proceedings with that involving Sunwise Innovations Pty Ltd, which was duly carried out, and led to the consequence that upon losing the action she became responsible for the whole of the costs of the action, including costs which may have been payable by Sunwise Innovations Pty Ltd. She says that the lawyer representing her was aware that Sunwise Innovations Pty Ltd would be placed in liquidation in the event it did not succeed in its defence in the relevant action.
4 The application is based upon the proposition that Hammond Worthington is entitled to immunity from suit and relies on the principles in D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755.
5 In D'Orta-Ekenaike the Court upheld the decision in Grannarelli v Wraith [1988] 165 CLR 543 that "… at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court", and took that proposition perhaps a little further by stating "because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as an advocate, or as a solicitor instructing an advocate) gives advice which leads to a decision (here the clients decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account". Those general propositions were accepted and applied in the NSW Supreme Court in Wilson v Carter& 5 Ors; Wilson v Rigg [2005] NSWSC 1351. If one looks at the position as it now appears to have been established by the High Court I think a summary of the present legal position is: a) an
(Page 5)
- advocate appearing in court is immune from suit for his conduct in court; b) an advocate or solicitor is immune from suit for work out of court which leads to a decision affecting the conduct of a case in court.
6 In the present circumstances the applicant alleges that the advice given by the solicitor to consent to the consolidation of her action with that involving Sunwise Innovations Pty Ltd should be characterised as such an out of court decision. I perceive two bases upon which this argument is advanced: a) that the order to consolidate the actions should itself be regarded as a decision reached by a court which should be protected from re-litigation in a manner which is likely to take place in the event that Lewis is permitted to pursue her counterclaim; b) that the order for consolidation should be regarded as the result of out of court work affecting the conduct of the case in court.
7 I have difficulty accepting either argument.
8 The whole thrust of the cases which have been cited to me by the applicant have as their foundation the concept of finality. The majority in D'Orta-Ekenaike accepted the principal of finality to be the basic proposition underpinning the existence of immunity. At par 34 the Court said "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgement on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding".
9 I see a decision to consolidate actions as being purely administrative. I see no resolution of any controversy between the parties made by such a decision especially in the event that the decision was by the consent of the parties. Whilst the consolidation no doubt had some effect of the manner of presentation of the case it is not in my view intimately connected with the conduct of the case. The case in so far as it concerned Lewis remained the same. For the convenience of the parties and the court the consolidated hearing would permit certain evidence to be called once rather than twice were separate trials to proceed. All that was achieved by
(Page 6)
- the consolidation was convenience. No concession of fact of any kind was made nor was the case, so far as it concerned Lewis, altered one jot. The case against her remained the same and her defence to it remained the same and that continued irrespective of whether or not the actions were consolidated.
10 The object of the immunity is to prevent reopening of issues once they have been determined. I am unable to see how the objects of the immunity will be achieved by applying it to the facts of this case. The order for consolidation, as I have indicated, was simply a procedural step which in my view had no particular effect on the manner in which the case was to be conducted or the evidence which was to be called or the arguments which were to be advanced. Those matters remained unchanged. What was different was that there was a slight change to the manner in which the trial was to proceed.
11 Accordingly, I am unable to accept that the circumstances of this case give rise to an immunity from suit upon which Hammond Worthington can rely and I am of the view that Lewis should be permitted to maintain her pleading and press the point at trial.
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