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Talbot v Boyd Legal (A Firm)

 

[2019] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

Talbot v Boyd Legal (A Firm) & Anor [2019] QSC 80

PARTIES:

AMANDA DIANE TALBOT

(plaintiff)

v

BOYD LEGAL (A FIRM)

(first defendant)

ARNOLD BLOCK LEIBLER (A FIRM)

(second defendant)

FILE NO:

S6419 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

29 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2019

JUDGE:

Ryan J

ORDER:

I will hear the parties as to the formal orders, and as to costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the first defendant seeks the striking out of the whole of the statement of claim insofar as it concerns him – where the first defendant complains about deficiencies in the way in which causes of actions are pleaded – whether the first defendant contends that there is no utility in granting leave to replead because all claims against it are statute barred – whether to strike out the whole of, or paragraphs of, the statement of claim – whether the court should consider limitation arguments in an interlocutory application

Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053

Christie v Purves [2007] NSWCA 182

Hawkins v Clayton (1988) 164 CLR 529

Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2015] 1 Qd R 476

Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 3) [2016] QSC 232.

Pullen v Gutteridge Hashin & Davey Pty Ltd [1993] 1 VR 27

Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209

Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213

Wardley Australia v Western Australia (1992) 175 CLR 514

COUNSEL:

P Dunning QC, with P Telford for the Plaintiff

R Jackson QC, with A Nicholas for the First Defendant

S Doyle QC with S McCarthy for the Second Defendant

SOLICITORS:

Everingham Lawyers for the Plaintiff

Hall & Wilcox for the First Defendant

K & L Gates for the Second Defendant

  1. [1]
    The plaintiff, Mrs Talbot, has brought actions in negligence against a solicitor, Mr Boyd  and a law firm, Arnold Block Leibler, arising out of the performance of their retainers concerning her late husband’s will and the administration of his estate, and in acting generally for her.
  2. [2]
    On 7 March 2019, I heard two applications in this matter.  The first was an application by the first defendant, Mr Boyd, to strike out Mrs Talbot’s statement of claim insofar as it related to him, or more accurately to “Boyd Legal (A Firm)” as he was named in the pleadings.  The second was an application by the plaintiff for disclosure.  I dealt with the disclosure application on 7 March 2019.  The orders and reasons contained in this decision concern only the application to strike out.
  3. [3]
    The first defendant’s complaints about the pleadings were primarily complaints about deficiencies in the way in which certain causes of action were pleaded.  He further submitted that there was no point in granting leave to replead because all of the claims against him were statute barred. 
  4. [4]
    The plaintiff acknowledged that her pleadings could be improved in terms of their expression but submitted, in effect, that they properly pleaded causes of action and complied with the rules. 
  5. [5]
    The plaintiff submitted that it was not appropriate for me to deal with the limitation point in this application to strike out – before a defence had been filed and that plea (that the claims were statute barred) had been made by the first defendant.  I was referred to authority in support of this submission and, in accordance with it, I decline to deal with the arguments that all claims against the first defendant are statute barred.
  6. [6]
    It will be apparent from my reasons that I consider that the pleadings are deficient in certain respects.  The plaintiff has indicated an intention to amend her statement of claim – including in response to some of the complaints made in the course of this application and I understand that the process of amendment is underway.  The extent to which orders striking out certain of the paragraphs of the statement of claim, and granting leave to replead, are required is not clear.
  7. [7]
    I will therefore hear from the parties as to the formal orders, and as to costs, in the first instance, by way of written submissions to my associate by 4 pm on Monday 8 April 2019.

Background

  1. [8]
    Mrs Amanda Talbot is Mr Ken Talbot’s widow.  Mr Talbot died in a plane crash on 19 June 2010.  Mrs Talbot was his second wife.  She is the mother of his two younger children and the stepmother of his two older children.  Mr Talbot’s estate is large and complex. 
  2. [9]
    Mr Boyd, a solicitor, practiced, from 1995, as a member of two firms of solicitors and then as a sole practitioner.  He was retained by Mr Talbot from at least 1995 until Mr Talbot’s death. 
  3. [10]
    In 2002, Mr Talbot retained Mr Boyd for the purposes of preparing a will.  The will was executed by Mr Talbot on 29 November 2002.  The will appointed Paul Bret, an American living in Texas, as Mr Talbot’s sole executor and trustee.  Mr and Mrs Talbot’s four children were beneficiaries under the 2002 will. 
  4. [11]
    Mr Talbot’s circumstances “materially changed” between 29 November 2002 and mid-2008, in particular in the composition of his non-residential property wealth. 
  5. [12]
    On about 1 September 2006, Mr Boyd sent an email to Mr Talbot’s assistant indicating that a review of his 2002 will was long overdue.  He sent similar emails to Mr Talbot himself on 25 September 2005 and 12 November 2007.  By 23 November 2007, Mr Boyd had been retained by Mr Talbot for the purposes of preparing a new will. 
  6. [13]
    By 7 October 2008, Mr Boyd had instructions to brief counsel to provide advice to Mr Talbot about succession planning and the new will.  By 8 October 2008, Mr Boyd had drafted instructions to counsel (Mr Peterson) about those matters, which reflected Mr Talbot’s wishes about his new will.  Under those instructions, Mrs Talbot’s position as a beneficiary under the proposed new will was more beneficial to her than her position under the 2002 will.
  7. [14]
    On 4 December 2008, Mr Talbot indicated to Mr Boyd that he wanted to complete the new will (“We should aim to knock it off the table”).
  8. [15]
    On 10 December 2008, Mr Boyd informed Mr Talbot that he needed more time because of the complexities of the matter.  He indicated that counsel’s advice was that an interim will be drafted in the meantime.  Mr Boyd told Mr Talbot that he was spending time on the interim will and was planning to discuss it with Mr Talbot the next week.  On 1 June 2009, counsel sent to Mr Boyd an email attaching a draft of the new will.
  9. [16]
    Neither the new will nor an interim will was executed before Mr Talbot’s unexpected death on 19 June 2010.
  10. [17]
    After Mr Talbot’s death, Mr Bret was appointed sole executor and trustee of Mr Talbot’s estate.
  11. [18]
    Mr Boyd acted for Mrs Talbot as a “solicitor generally” in relation to the issues which arose as a result of Mr Talbot’s death.
  12. [19]
    Mr Bret was removed as executor and administrator after problems arose between him and the beneficiaries.  From 29 June 2012, Mr Boyd was engaged as the administrator of the estate.   
  13. [20]
    The plaintiff retained the second defendant from about 9 August 2010 until November 2015 to (among other things) give her general and commercial advice in relation to Mr Talbot’s estate. 
  14. [21]
    The administration of Mr Talbot’s estate is not yet complete.

The claim and statement of claim

  1. [22]
    The plaintiff has brought a claim in negligence against the first and second defendants, which was filed on 18 January 2019.  It reads:

The plaintiff claims as against the First and Second Defendants loss and damages suffered by the Plaintiff for negligence for an amount that cannot be further particularised until after the completion of disclosure and the provision of expert reports.

The plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim.

  1. [23]
    In the plaintiff’s outline of argument, her allegations are summarised as follows:
  1. For the reasons alleged in the Statement of Claim, the Plaintiff says, essentially, that:

(a) The 2002 will was drafted negligently by First Defendant, in a manner which has in the past and will continue to cause the (sic) her economic loss;

(b) The First Defendant negligently failed to perform Mr Talbot’s instructions in respect of the new will, thereby causing her to suffer a loss of opportunity as a disappointed beneficiary.

  1. The Plaintiff retained the Second Defendant to provide advice in relation to the Deceased Estate of Mr Ken Talbot between about August 2010 and about September 2012.  By her Statement of Claim, the Plaintiff alleges that the Second Defendant:

(a) Failed to advise her in relation to claims she has, or may have had, against the First Defendant arising out the negligent manner in which the 2002 will was prepared;

(b) Failed to advise her in relation to claims she has, or may have had, against the First Defendant arising out his negligent failure to perform the new will retainer;

(c) Failed to advise her in relation to conflicts of interest arising from the First Defendant’s negligence and/or breach of retainer.

  1. [24]
    The plaintiff’s claim is based in negligence and relies upon duties said to arise in contract and tort and in the course of a fiduciary relationship.
  2. [25]
    The statement of claim is a lengthy document, containing several parts and numerous paragraphs.  In an apparent effort to keep it as brief as possible, paragraphs cross-refer to parts or other paragraphs of the statement of claim. 
  3. [26]
    The statement of claim sets out four causes of action relevant to the first defendant’s conduct. 
  4. [27]
    The causes of action are said to arise out of four retainers of Mr Boyd, designated in the statement of claim as follows –
  • the 2002 Will Retainer: a retainer by Mr Talbot for the purposes of preparing Mr Talbot’s will;
  • the Continuing Advice in Relation to the 2002 Will Retainer: a retainer by Mr Talbot, to provide continuing advice about the 2002 will;
  • the New Will Retainer: a retainer by Mr Talbot by, or on about 23 November 2007, to prepare a new will; and
  • the Mr Boyd Issues arising from Mr Talbot’s Death Retainer: a retainer by the plaintiff from the date of Mr Talbot’s death until “June 2012” in relation to issues that arose as a result of his death.
  1. [28]
    With respect to the 2002 Will Retainer, the statement of claim pleads –
  • the fact of the retainer;
  • its (relevant) implied term, namely, that Mr Boyd (and his solicitors’ firm) would exercise reasonable care, skill and diligence in its performance;
  • that Mr Boyd (and his solicitor’s firm) had a concurrent duty at law, owed to Mr Talbot, consistent with that contractual duty (to exercise reasonable care, skill and diligence);
  • the terms of the will;
  • (unnecessarily: that at trial, the plaintiff would refer to the 2002 Will for its “full terms, true meaning and effect);
  • that the first defendant owed Mrs Talbot a duty of care in performing the 2002 Will Retainer, namely a duty to exercise reasonable care, diligence and skill in its performance;
  • the way in which a solicitor engaged to perform the terms of the 2002 Will Retainer, exercising care, diligence and skill, would have performed its terms, in terms of the advice given to Mr Talbot, investigations, the inclusion of a certain provision; the appointment of French lawyer,
  • in effect, that the first defendant failed to exercise reasonable care, skill and diligence by not performing its terms in the way in which a solicitor engaged to perform its terms would have; and
  • that by reason of that breach/failure, Mrs Talbot had suffered loss and damage – this is pleaded in Part N of the pleadings.
  1. [29]
    Thus, the 2002 Will Retainer pleadings plead, among other things, (a) the duty of care; (b) its sources; (c) the standard of care/conduct required by law to meet the obligations of the duty of care: that is, what was required of the first defendant to discharge the duty; (d) the way in which the first defendant failed to conform to the required standard (that is, the breach); and (e) loss and damage.
  2. [30]
    However, there is no pleading about what would have occurred were it not for the first defendant’s negligence.  It does not plead, for example, what Mr Talbot would have done had he been given the advice it is said that a solicitor exercising reasonable care, skill and diligence would have given him.
  3. [31]
    With respect to the Continuing Advice in Relation to the 2002 Will Retainer, the statement of claim pleads –
  • the fact of the retainer;
  • Mr Boyd’s duty to give advice “as pleaded in Parts B and D above” – that is, in accordance with the implied term and concurrent duty at law owed to Mr Talbot (as per Part B, paragraph 10) and the duty owed to Mrs Talbot;
  • the way in what that duty was breached – that is, by failing to advise Mr Talbot that his 2002 Will was not appropriate for his circumstances. 
  • by reason of that breach of duty, that Mrs Talbot suffered loss and damage (pleaded in Part N).
  1. [32]
    Thus, the Continuing Advice pleadings plead (a) the retainer; (b) the duty of care; (c) the breach; and (d) Mrs Talbot’s loss and damage.
  2. [33]
    There is no explicit pleading of the standard of conduct/care required but the paragraph pleading the breach (paragraph 20) states:

By reason of the matters pleaded in paragraph 16 above, Mr Boyd … should have advised Mr Talbot that his 2002 Will was not appropriate for his circumstances, and the failure to do so was a breach of his duties pleaded in paragraph 17 above.

  1. [34]
    Paragraph 16 appears under the heading “Part E – The breach of duty by HBB and Mr Boyd in drafting the 2002 Will”.  It sets out the way in which a solicitor engaged to perform the terms of the 2002 Will Retainer, exercising reasonable care, diligence and skill would have performed the retainer, that is, by giving certain advice, by conducting certain investigations, by including a certain mechanism and by taking steps to ensure that the 2002 will and other statements of testamentary intention (including a French will) did not revoke each other.
  2. [35]
    Paragraph 17 alleges the way in which Mr Boyd’s conduct fell short of the standard required in drafting the 2002 Will.     
  3. [36]
    Paragraph 20 therefore alleges that because Mr Boyd did not draft the 2002 will in the way in which a solicitor exercising reasonable care, diligence and skill would have drafted it, it was not appropriate for his circumstances and Mr Talbot should have been so advised.  The reference back to paragraph 17 seems to be an error.  It seems that the reference ought to be to paragraph 19 which pleads the duties owed in relation to the Continuing Advice in Relation to the 2002 Will Retainer.
  4. [37]
    However, the pleadings do not include a pleading as to what would have occurred had Mr Talbot been advised that the 2002 will was not appropriate.
  5. [38]
    With respect to the New Will Retainer, the Statement of Claim pleads –
  • the material changes in Mr Talbot’s circumstances;
  • the discussion between Mr Talbot and Mr Boyd about a new will;
  • the fact of the retainer;
  • the steps taken to have the new will drafted and executed by Mr Talbot;
  • the implied term of the New Will Retainer, namely that Mr Boyd would exercise reasonable care, skill and diligence in its performance,
  • that Mr Boyd owed Mr Talbot a concurrent duty at law, consistent with the contractual duty (to exercise reasonable care, skill and diligence);
  • that Mr Boyd owed a duty to Mrs Talbot to exercise reasonable care, diligence and skill in its performance;
  • the way in which a solicitor exercising reasonable care, diligence and skill would have performed the New Will Retainer’s terms in terms of the advice given to Mr Talbot, the preparation of an interim will, the preparation of a codicil to the 2002 Will or the alteration of its terms to achieve certain things, the preparation of a new will (by 8 October 2008 or I June 2009) in certain terms, the engagement of lawyers in Italy, France and China to do certain things, causing Mr Talbot to execute the codicil or interim will, the new will, and any wills or other statements of testamentary intention in France, Italy and China (dealing with Mr Talbot’s property in those countries), completing the draft will and having it executed by Mr Talbot prior to the end of 2009, and warning Mr Talbot about the consequences of there not being changes to the 2002;
  • that Mr Boyd had failed to exercise reasonable care, skill and diligence by certain failings;
  • that his failings had caused Mrs Talbot loss and damage.
  1. [39]
    Thus, the New Will Retainer pleading pleads, among other things, (a) the change in circumstances; (b) the duty; (c) its sources; (d) the standard of conduct/care required; (e) the breach; and (f) the loss. 
  2. [40]
    There is however no pleading about what would have occurred had Mr Boyd exercised reasonable care, skill and diligence.
  3. [41]
    With respect to the Mr Boyd Issues Arising from Mr Talbot’s Death Retainer, the statement of claim pleads –
  • the fact of the retainer;
  • the (relevant) implied terms of it, namely that Mr Boyd would exercise reasonable care, diligence and skill in performing it; and that he would “inform Mrs Talbot of, and provide advice in relation to, any information which [he] knew which may be relevant to her entitlement as a beneficiary under the 2002 Will or the proposed New Will, in the way that a reasonably competent solicitor would”;
  • that the retainer created fiduciary duties (to inform Mrs Talbot about matters relevant to her entitlement as a beneficiary; not to be in a position of conflict; and to inform Mrs Talbot about any conflict);
  • that in breach of the terms and duties, Mr Boyd failed to do certain things;
  • that, but for those breaches, Mrs Talbot would not have retained him as her solicitor;
  • that, but for those breaches, Mrs Talbot would have sought alternative legal advice, including in respect of any actions available to her or to the estate against Mr Boyd;
  • that, but for those breaches, Mrs Talbot would not have approved the appointment of Mr Boyd as an administrator of the estate;
  • that, because of those breaches, Mrs Talbot  –
    • did not know “of the matters pleaded in E and H above” – that is the breaches of duty by Mr Boyd (and his solicitors’ firms) in drafting the 2002 will and in the giving of continuing advice in relation to the 2002 Will;
    • did not become aware of the matters pleaded in Part M (the breach of duty in relation to the New Will Retainer) until 7 September 2018, when she was provided with a copy of Mr Boyd’s New Will file;
    • approved the appointment of Mr Boyd as administrator and trustee in 2012 without knowledge of the matters pleaded in parts E, H and M;
    • Mrs Talbot was deprived of the opportunity of commencing proceedings as a disappointed beneficiary (to claim the loss suffered);
    • Mrs Talbot has suffered loss and damage “concerning” delays occasioned by Mr Boyd’s administration of the estate since 29 June 2012.
  1. [42]
    Thus, the Mr Talbot’s Death Retainer pleadings plead, among other things, (a) the duty under the retainer; (b) the fiduciary duty; (c) the standard of care required under the retainer’s duty of care; (d) the content of the fiduciary duty; (e) breach of the terms and duties; (e) what would have occurred had there been no breach; and (f) loss and damage.
  2. [43]
    It may be noted that while the statement of claim pleads that there was a duty to inform in the way a ‘reasonably competent solicitor would’ the content of that duty is not explicitly detailed.
  3. [44]
    With respect to the statement of claim insofar as it concerns ABL, it is enough to say that it is alleged that ABL failed to appreciate that Mrs Talbot had a claim for damages in negligence against Mr Boyd and the solicitors’ firms which employed him, concerning the 2002 will; and failed to appreciate that the limitation period concerning the 2002 will expired six years from when the cause of action arose, which was upon the death of Mr Talbot on 19 June 2010.[1]  Any action concerning the 2002 will had to be started on or before 19 June 2016, and it was not.  It is also alleged that ABL ought to have advised Mrs Talbot that Mr Boyd was not a suitable person to administer the estate.

Leave under rule 135

  1. [45]
    The first defendant seeks leave to bring this application to strike out even though he has not yet filed a notice of intention to defend.  I did not understand there to be any objection to my granting that leave, and I do so, under rule 135.

Procedural law

  1. [46]
    I have approached this matter in accordance with the principles discussed below which are not controversial.
  2. [47]
    In Virgtel Ltd v Anor v Zabusky & Ors,[2] Daubney J explained that the matters of form mandated by the rules were to be applied for the purpose of ensuring that the pleadings fulfilled their functions.[3]  Their adequacy was to be considered in a reasonable, realistic and pragmatic way: perfection in pleading practice was not an end in itself.[4]  His Honour said (footnotes omitted):[5]   

It has long been held that the power to strike out is not mandatory but permissive, and confers a discretionary exercise based on the quality and surrounding circumstances of the offending pleadings, including … due regard to the function of the pleadings and appropriate observance of the fundamental principles set out in Rule 5 [of the Uniform Civil Procedure Rules 1999].

  1. [48]
    The procedural law concerning strike out applications was summarised by Bond J in Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 3).[6]  In that matter, his Honour said at [6]:
    1. (a)
      The basic function of pleadings is to identify the issues which require the court’s decision and determination with sufficient precision to enable the other party to know and understand the case it has to meet.
    2. (b)
      A fortiori, where, as here, the allegation is a most serious kind …
    3. (c)
      In Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, White JA stated at [16] (emphasis added):

Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) which enabled a judge to strike out or amend any matter in the pleading which tended ‘to prejudice, embarrass, or delay, the fair trial of the action’.  The word ‘embarrass’ has not been retained.  Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than ‘embarrass’ the opposite party.

  1. (d)
    I put the matter in this way in Lee v Abedian [2016] QSC 92 at [38] to [39] (citations omitted):

All of the applicant defendants accept, as they must, that the power to strike out is to be used sparingly and only in clear cases: General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 at 129 to 130.  The power cannot be exercised ‘once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it’: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J.

However, they submit, and I agree, that the Court will not shrink from striking out a pleading which is defective because it does not disclose a reasonable cause of action, has a tendency to prejudice or delay a fair trial, contains allegations which are unnecessary, scandalous, vexatious or embarrassing, or which is otherwise an abuse of the processes of the Court.

  1. [49]
    In Thiess Pty Ltd v FFE Minerals Australia Pty Ltd,[7] FFE submitted that Thiess’ pleading did not disclose a reasonable cause of action because it failed to plead necessary material facts or identify the issues for trial. 
  2. [50]
    In dealing with the obligation to plead material facts, White J explained that “material facts”, in the context of rule 149, were those necessary for the purpose of formulating a complete cause of action (referring to Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712).  If even one material fact necessary to sustain the particular cause of action sought to be made out is omitted, then that part of the claim is liable to be struck out.  Of the purposes of pleadings generally, her Honour said:

More generally, the purpose of pleadings is to inform the opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed.  Furthermore, the defendant cannot be expected to intuit what the plaintiff intends to convey in its pleadings by its own understanding of the facts and circumstances giving rise to the litigation.  That would be a certain path to disaster.

The strike out application

Mr Boyd’s arguments in overview

  1. [51]
    The first defendant applied to strike out the statement of claim in its entirety insofar as it related to him (as styled “Boyd Legal (A Firm)”).  He accepted that the power to strike out, pursuant to r 171 of the UCPR or in the inherent jurisdiction of the Court, is to be exercised only in clear cases.  He acknowledged that the purpose of pleadings is to inform an opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed.[8] 
  2. [52]
    He submitted that serious allegations of the kind necessary to support a claim of professional negligence must be articulated with care and with more than a casual nod to the rules of pleading.  He relied upon Hughes v Western Australian Cricket Association (Inc)[9] and Australian Wool Innovation Ltd v Newkirk[10] for that submission.  Those cases concern allegations of conspiracy and contain statements to the effect that an allegation of conspiracy, like an allegation of fraud, ought not to be lightly made. Regardless, I have no difficulty proceeding on the basis that the claim of professional negligence must be articulated with care: indeed, all claims must be articulated with care. 
  3. [53]
    Mr Boyd submitted (non-contentiously) that sufficient and relevant facts should be pleaded so that there is no confusion about the issues raised for trial or the scope of the case which the defendant must meet. 
  4. [54]
    He argued that the deficiencies in the claim were such that the whole of the pleading should be struck out.  He submitted that there was no utility in granting the plaintiff leave to replead because all of her claims against the first defendant were statute barred.

Mrs Talbot’s offer to clarify the pleadings & submissions about dealing with a limitation argument at this stage of proceedings.

  1. [55]
    Before Queen’s Counsel for the first defendant began his submissions, Queen’s Counsel for the plaintiff explained that – while it may not have been clear to the first defendant – the claim was endorsed as one in negligence based on causes of action in contract, negligence and breach of fiduciary duty and that the contractual and tortious duties “mirror[ed] each other”.  He said that he did not appreciate that the use of the expression “breach of duty” in the pleadings had been the source of any misunderstanding.  He indicated that he would clarify this aspect of his pleading. 
  2. [56]
    Later, Queen’s Counsel for the plaintiff acknowledged that it was “absolutely essential” that the statement of claim disclosed the plaintiff’s causes of action but submitted that, if shorthand expression did not admit of misunderstanding, then it was desirable.  He foreshadowed that he would deal with “the criticisms” of the first defendant in the course of amending the statement of claim to deal with damages but argued that the matters of complaint did not detract from the first defendant’s understanding of the case he had to meet and strike out was not warranted.
  3. [57]
    He submitted that arguments about the limitation period ought not to be dealt with in this application – the first defendant should be required to plead a limitation defence if he was “game”.  He mentioned that the plaintiff might reply by reference to section 38 of the Limitations of Actions Act 1974, which permits the postponement of the limitation period in the case of fraud or mistake.  But his essential point was that now was not the time to deal with such an argument. 

The challenged paragraphs

  1. [58]
    I will deal with the challenged paragraphs one by one, in the order in which the first defendant dealt with them in written submissions.

Paragraph 51

  1. [59]
    Paragraph 51 is headed “Part O – the retainer of Mr Boyd to act generally for Mrs Talbot regarding issues arising from Mr Talbot’s death”.  The paragraph states:

From about the date of Mr Talbot’s death to about June 2012, Mr Boyd acted as solicitor generally for Mrs Talbot in relation to the issues that arose as a result of Mrs Talbot’s death (the Mr Boyd issues arising from Mr Talbot’s death retainer).

  1. [60]
    The first defendant described paragraph 51 as an apparent attempt to plead that from the date of Mr Talbot’s death to about June 2012, Mr Boyd was retained by Mrs Talbot in relation to issues that arose as a result of Mr Talbot’s death.   
  2. [61]
    The first defendant complained that there was no pleading of the terms of such a retainer, or whether it was oral, in writing or implied by conduct.  He complained that the pleading of the “post-death retainer” was vague and liable to be struck out under each of the subparagraphs of rule 171. 
  3. [62]
    In response to these complaints, the plaintiff said that a copy of the retainer was supplied to the first defendant and it was, in any event, the first defendant’s document: it could not be that the pleading lead to a misunderstanding about it.
  4. [63]
    The plaintiff offered to provide particulars of this retainer.  That is the most efficient way to deal with this issue.

Paragraph 52

  1. [64]
    Paragraph 52 appears under the heading “Part P – Mr Boyd owed a duty of care and fiduciary duties to Mrs Talbot regarding issues arising from Mr Talbot’s death”.  It states:
  1. The Mr Boyd Issues Arising from Mr Talbot’s Death Retainer gave rise to the following implied terms:

(a) Mr Boyd would exercise reasonable care, diligence and skill in performing the Mr Boyd Issues Arising from Mr Talbot’s Death Retainer;

(b) Mr Boyd would inform Mrs Talbot of, and provide advice in relation to, any information which Mr Boyd knew which may be relevant to her entitlement as a beneficiary under the 2002 Will or the proposed New Will, in the way that a reasonably competent solicitor would.

  1. [65]
    The first defendant made several complaints about paragraph 52.
  2. [66]
    He observed that the paragraph asserted that there were two implied terms of the Mr Boyd Issues Arising from Mr Talbot’s Death Retainer, namely, (a) that he would exercise reasonable care, diligence and skill in performing the retainer and (b) that he would inform Mrs Talbot of certain things.  However, it was not thereafter alleged in the pleadings that Mr Boyd failed to exercise reasonable care, diligence and skill in breach of implied term (a). 
  3. [67]
    The first defendant suggested that paragraph 52(a) was surplus.  I observe that it may also be that the plaintiff claims that an aspect of the exercise of reasonable care et cetera was to inform Mrs Talbot of the matters referred to in paragraph 52(b).
  4. [68]
    Further, the first defendant complained that, although it is pleaded in 52(b) that it was an implied term of the retainer that –

Mr Boyd would inform Mrs Talbot of, and provide advice in relation to, any information which Mr Boyd knew which may be relevant to her entitlement as a beneficiary under the 2002 Will or the proposed New Will, in the way that a reasonably competent solicitor would (my emphasis),

there was no allegation in the pleading as to what a reasonably competent solicitor would have done.  I understand that to be a complaint about the lack of precision inherent in the phrase “any information which Mr Boyd knew which may be relevant to her entitlement as a beneficiary”. 

  1. [69]
    The first defendant complained that, although it is pleaded that Mr Boyd would provide advice about information which he “knew”, the pleading did not allege the matters which Mr Boyd was said to have known or whether his knowledge was actual or constructive.  Arguably, the pleadings imply that Mr Boyd knew of the matters set out in paragraph 54 but that must be asserted clearly. 
  2. [70]
    The first defendant complained that the pleaded cause of action was in contract and not negligence.  The first defendant observed that there was not “the usual” next paragraph which asserted that like duties were owed in negligence.  While the duties were co-extensive, limitation period issues are relevant in this matter.
  3. [71]
    The plaintiff submitted, in effect, that paragraph 52 pleaded adequately that, as a result of the retainer, Mr Boyd had a duty to exercise the reasonable skill and care of a solicitor “in and about” that retainer, which involved him “giving the advice that a competent solicitor would give in those circumstances, and ascertaining those matters that a competent solicitor would ascertain in those circumstances”.  The plaintiff submitted that an informed reader “could hardly not take that from what is alleged there”.  However the plaintiff acknowledged that the pleading required amendment to include a cause of action in negligence.
  4. [72]
    While it might be that the statement of claim intended to convey that a reasonably competent solicitor would have informed Mrs Talbot of the matters set out in 54(a), (b) and (c), if that is correct, then it must be asserted clearly in the statement of claim, particularly when one has regard to the seriousness of the allegations made in these pleadings. 
  5. [73]
    Also, it is not clear whether the plaintiff intended to plead that a reasonably competent solicitor would have provided the New Will file to Mrs Talbot unprompted, or only upon request – see paragraph 54(d).
  6. [74]
    I consider that the first defendant’s complaints about paragraph 52 are valid – the case is not sufficiently clearly articulated.  Nor does the statement of claim include a claim in negligence: it refers only to the claim in contract.  It should be struck out with leave to replead.

Paragraph 53

  1. [75]
    Paragraph 53 states:
  1. The Mr Boyd Issues Arising from Mr Talbot’s Death Retainer created fiduciary duties:

(a) that Mr Boyd would inform Mrs Talbot of any information which Mr Boyd knew which may be relevant to her entitlement as a beneficiary under the 2002 Will or the proposed New Will; and

(b) that Mr Boyd would inform Mrs Talbot of any conflict which he may have had which may prevent him acting for her or prevent him providing her information of which he was aware as to her entitlements under the 2002 Will or the proposed New Will;

(c) not to allow his personal interest in not being pursued for his negligence, or even arguable negligence, over the 2002 Will and the Proposed Will to conflict with his duties to Mrs Talbot pleaded in subparagraphs (a) and (b) above.

  1. [76]
    The first defendant complained that paragraph 53(a) did not state whether Mr Boyd’s alleged duty to tell Mrs Talbot information extended to information he ought to have known, or whether it was limited to information which he knew.   
  2. [77]
    He complained that while paragraph 53(b) alleged that Mr Boyd owed a duty to Mrs Talbot to inform her of any conflict he may have had, that allegation misstated the duty, which arose, it was submitted, only in respect of known conflicts.
  3. [78]
    A similar complaint was made about paragraph 53(c), which alleged that Mr Boyd had a duty not to allow his personal interest in not being pursued for his negligence to conflict with his duties to Mrs Talbot.  The complaint was, in effect, that it was not pleaded that Mr Boyd knew about his own negligence, or perhaps more accurately the possibility of a claim against him in that regard. 
  4. [79]
    The plaintiff submitted that the fiduciary duties alleged were “unremarkable”.  She submitted that if the defence was that Mr Boyd did not know and he shouldn’t have known, then that was a matter for the defence.
  5. [80]
    The fiduciary duties which apply to the lawyer/client relationship require the lawyer to give undivided loyalty to their client, without being distracted by other interests, including personal interests.  Lawyers must not engage with their clients in circumstances which involve a conflict of interest and duty.[11]  Where there is a conflict of interest, a lawyer is required to disclose that conflict, so as to allow the client to determine whether or not to continue to retain the lawyer.  A leading text explains it this way (footnotes omitted, my emphasis):[12]

[6.25] … Lacking knowledge of the existence, scope of the implications of the conflict, a client cannot be said to give informed consent or authority to the (continuing) representation.  A leading statement in this regard is that of Street CJ in Law Society of New South Wales v Harvey:

[The disclosure] must be a conscientious disclosure of all material circumstances, and everything known to him relating the proposed transaction which might influence the conduct of the client or anybody from whom he might seek advice.  To disclose less than all that is material may positive mislead.  Thus, for a solicitor to merely disclose that he has an interest, without identifying the interest, may serve only to mislead the client into an enhanced confidence that the solicitor will be in a position to better protect the client’s interests.

[6.30] Yet a lawyer in making the above disclosure lacks distance from the conflict, which may dictate that even with the best of intentions the disclosure may not properly avoid bias.

  1. [81]
    Reading the pleading as a whole, the relevant material facts, that is the material circumstances and everything known to Mr Boyd which might influence Mrs Talbot’s conduct, are set out in the next paragraph – paragraph 54.
  2. [82]
    The pleading of paragraph 53 could be improved to ensure that it was clear that the duty was to disclose relevant matters known to Mr Boyd.  Arguably, the point is a technical one because the requirement of knowledge is adequately conveyed when the pleading is read as a whole.  However, having regard to the seriousness of the allegations made against Mr Boyd, I consider that the paragraph ought to be struck out with leave to replead to respond to the complaint about knowledge.

Paragraph 54

  1. [83]
    Paragraph 54 states:
  1. In breach of the terms and duties of the Mr Boyd Issues Arising from Mr Talbot’s Death Retainer, Mr Boyd:

(a) did not inform Mrs Talbot of the matters set out in Parts E, H and M above which were relevant to her entitlement as a beneficiary under each of the 2002 Will and the proposed New Will;

(b) did not inform Mrs Talbot that he had a conflict between his personal interest and his duties to Mrs Talbot in light of:

(i) his breaches of duty in relation to the 2002 Will as pleaded in Parts E and H above; and

(ii) his failure to prepare the Interim Will, or the New Will, or a codicil, in a timely way or at all as pleaded in Part M above; and

(iii) that Mrs Talbot had suffered loss and damage as a result;

(c) did not inform Mrs Talbot that she had a claim against him as a disappointed beneficiary and that he could not continue to act for her in relation to the affairs of the estate;

(d) failed to provide to Mrs Talbot a copy of his New Will in response to requests on behalf of Mrs Talbot on or about:

(i) late 2010 at the office of Mr Boyd;

(ii) June, 2011 via correspondence from ABL to Mr Boyd; and

(iii) Mid 2012 at the office of Mr Boyd.

  1. [84]
    The first defendant complained that the allegations of breach in this paragraph are in “rolled-up and vague terms”.  They refer simply to the breach of the “terms and duties” of the retainer. 
  2. [85]
    The plaintiff submitted that “in breach of the terms and duties” was a compendious way “of picking up the contract, tort and fiduciary duties”:  It was alleged that Mr Boyd’s responsibilities were to go about the “post death retainer” in the way of a competent solicitor and inform Mrs Talbot of the matters’ in E, H and M.  The plaintiff submitted that a reader was not confounded by the pleading.
  3. [86]
    The plaintiff submitted that paragraph 54 pleaded what Mr Boyd had undertaken to do; pleaded the way in which he did not do what he had undertaken to do (in other words, how his performance of the retainer was “defective”) and pleaded the adverse outcome for Mrs Talbot. 
  4. [87]
    The plaintiff submitted that, on the matters pleaded, Mr Boyd could not have not known that he was in a position of conflict and paragraph 54 set out, as briefly as the circumstances would allow, and in a comprehensible fashion, the counter factual. 
  5. [88]
    It seems likely that the “terms and duties” referred to are meant to be the terms set out in paragraph 52 and the duties set out in paragraph 53.  But the failings alleged in paragraph 54 do not expressly include Mr Boyd’s failing to exercise reasonable care et cetera.  I refer to the discussion of paragraph 52 above.  Also, I note that it is alleged that Mr Boyd failed to provide to Mrs Talbot a copy of his New Will file in response to requests from her for it in 2010, 2011 and 2012.  However, it is not clear on the pleadings whether the duty to provide her with a copy of the New Will file arose as a consequence of a contractual, tortious or fiduciary duty.
  6. [89]
    I consider that paragraph 54 should be struck out with leave to replead to allow the plaintiff to identify for the first defendant the term or duty said to have been breached by the conduct alleged in paragraphs 54(a), (b), (c) and (d). 
  7. [90]
    The first defendant complained that, while there are allegations of breach made in paragraphs 54(a), (b), (c) and (d), critical allegations of fact had been omitted – that is, it was not alleged that Mr Boyd knew that –
  • he acted negligently;
  • he had a conflict;
  • the plaintiff had suffered loss and damage as the result of his negligence;
  • the plaintiff had a claim against him as a disappointed beneficiary and that he could not continue to act for her;
  • the New Will file was information that may be relevant to her entitlement as a beneficiary. 
  1. [91]
    The plaintiff submitted that it “defied belief” that Mr Boyd did not appreciate that he had a conflict of interest in acting for her, given that he knew, when Mr Talbot died, that he had been working on new will for almost two years and that a year beforehand, a specialist barrister advised him to prepared an interim will.  The plaintiff said it was not a matter of her not “joining the dots”: the statement of claim was meant to be “an assertion of material facts, not a novella”.  While the plaintiff may intend to rely on such an inference at trial to prove knowledge, the pleadings should clearly allege what Mr Boyd knew (actually or constructively).   
  2. [92]
    The first defendant also complains that the allegation that Mr Boyd failed to inform the plaintiff that she had suffered loss and damage as a result of his negligence was, presumably, a reference to the loss and damage pleaded at N – but that was not clear and it should be.  It is implicit in that submission that the first defendant understood that aspect of the pleadings but having indicated my view that the paragraph ought to be struck out with leave to replead, the reference to loss and damage should be clarified.
  3. [93]
    Also, the first defendant argues that the New Will File could “obviously contain information the subject of legal professional privilege”.  He argues that Mr Boyd could never have breached Mr Talbot’s privilege and cannot be negligent for failing to do so.  He argues that the claim is “hopeless” and “should not be permitted to proceed”. 
  4. [94]
    Queen’s Counsel for the plaintiff contended that legal professional privilege attached only to communications made in anticipation of litigation and the New Will file was unlikely to contain communications of that kind.  However, legal professional privilege extends beyond communications of that sort to confidential communications passing between a client and a legal advisor.  As stated in Cross on Evidence:[13]

In civil and criminal cases, confidential communications passing between a client and a legal advisor need not be given in evidence or otherwise disclosed by the client, and without the client’s consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either (1) to enable the client to obtain, or the adviser to give, legal advice or assistance, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client. 

  1. [95]
    Regardless, in my view, the possibility that some of the documents in the new will file might be privileged documents (or the relevance of the way in which the retainer dealt with potentially privileged material) is a matter for the defence.   

Paragraph 55

  1. [96]
    The first defendant described this paragraph as “problematic”.  He complained that paragraph 55(a) makes no sense.  That paragraph reads:

But for the breaches of the terms and duties set out in the preceding paragraph: Mrs Talbot would not have retained Mr Boyd as her solicitor.

  1. [97]
    In oral submissions, Queen’s Counsel for the first defendant said: “Presumably, that means she would not have continued to retain him” but submitted that the first defendant ought not to have to guess about it. 
  2. [98]
    The plaintiff submitted that there was no other way of pleading that Mr Boyd should have told her that he could not act for her and to get other legal advice, and that because of his breach and his failure to give advice, Mrs Talbot did not get other advice.  The paragraph “did not float in a vacuum”: Paragraph 54 set out “the sorts of things” Mr Boyd should have told Mrs Talbot.
  3. [99]
    “Retain” implies a continuing relationship.  In context, the assertion that the plaintiff “would not have retained” the first defendant is apt to convey that which is intended – namely that the retainer would not have continued.  It is a matter for the plaintiff whether she wishes to amend this paragraph.   
  4. [100]
    The first defendant complains that paragraph 55(b) ignores the fact that Mrs Talbot did seek alternative legal advice (from the second defendant).  Paragraph 55(b) states:

But for the breaches of the terms and duties set out in the preceding paragraph: Mrs Talbot would have sought alternative legal advice, including in respect of any actions available to her or to the estate against Mr Boyd. 

  1. [101]
    The plaintiff’s response to these complaints was that, while the first defendant was factually correct, Mrs Talbot did obtain legal advice from another solicitor, the seeking of legal advice was “not germane” to the existence of Mrs Talbot’s claim in tort or contract against Mr Boyd.  The plaintiff submitted that it might be that, by way of defence, the first defendant will plead that there were other tortfeasors with responsibility for Mrs Talbot’s loss, but that did not go to the viability of the claims made in the statement of claim.
  2. [102]
    Paragraph 55 is to be read in context.  In context, the paragraph conveys an allegation that had Mrs Talbot known of Mr Boyd’s alleged breaches, she would have retained another solicitor to advise her generally about issues which arose as a result of her husband’s death. 
  3. [103]
    It is contained in part Q of the statement of claim.  The context of part Q includes part O, which indicates that its paragraph (paragraph 51) and the paragraphs which follow it (paragraphs 52 to paragraphs 56) concern the Mr Boyd Issue Arising from Mr Talbot’s Death Retainer.  Paragraph 55(b) follows on from the assertion in paragraph 55(a) that Mrs Talbot would not have retained Mr Boyd (in the sense of continuing to retain him) had she known of his breaches and, as asserted in paragraph 55(b), would have sought alternative legal advice. 
  4. [104]
    I do not consider it necessary to strike out paragraph 55.  The relevance of the fact of Mrs Talbot’s actually seeking other legal advice is a matter for the defence. 

Paragraph 56

  1. [105]
    The first complaint about this paragraph is that its heading is inaccurate: paragraphs (a) to (c) deal with causation, not loss.  Whether to correct the heading is a matter for the plaintiff.
  2. [106]
    Paragraph 56 states:
  1. By reason of the breaches of Mr Boyd pleaded in Part Q above:

(a) Mrs Talbot did not know of the matters pleaded in Parts E and H above;

(b) Mrs Talbot did not become aware of the matters pleaded in Parts M above until 7 September 2018 when she was provided with a copy of Mr Boyd’s New Will file;

(c) Mrs Talbot approved the appointment of Mr Boyd as administrator of the estate and trustee in 2012 without knowledge of the matters pleaded in Parts E, H and M above;

(d) Mrs Talbot was deprived of the opportunity of commencing proceedings, as relevant, against Mr Boyd, HBB and HBBCL as a disappointed beneficiary as alleged in Parts E, H and M above, for the loss suffered as alleged in Part N above;

(e) Mrs Talbot has suffered loss and damage concerning delays occasioned by Mr Boyd’s administration of the estate since 29 June 2012 in an amount that cannot be further particularised until after the completion of disclosure and the provision of expert reports.

  1. [107]
    The complaint about paragraph 56(a) is that it contains an irrelevant statement about what the plaintiff did not know – that is, she did not know that he had breached his duty.  By irrelevant, it was apparent from the submissions that the first defendant plainly meant “irrelevant to limitation questions”. 
  2. [108]
    The first defendant relied upon Christie v Purves.[14] In Christie, Ipp JA, with whom Beazley and Campbell JJA agreed, set out the general rules relating to the limitation of actions in negligence actions for economic loss.  At [35] – [37] his Honour said:

35 A plaintiff cannot sue for damages in negligence until the cause of action accrues. But once it accrues, time commences to run. In Commonwealth v Cornwell … (2007) 234 ALR 148, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said (at 150, [5] to [6]):

“[T]o show the existence of a completely constituted cause of action in negligence, a plaintiff must be able to show duty, breach, and damage caused by the breach; accordingly, in the ordinary case, it is at the time when that damage is sustained that the cause of action ‘first accrues’ for the purposes of a provision such as s 11 of the Limitation Act 1985 (ACT) [the equivalent of s 14 of the Limitation Act 1969 (NSW)].

In Hawkins v Clayton [(1988) 164 CLR 539], which turned upon a provision of the New South Wales legislation [s 14 of the Limitation Act 1969 (NSW)] relevantly indistinguishable from the territory legislation, this court refused to place a particular gloss upon the statutory text. The court rejected the proposition that, at least in the case of claims in negligence for economic loss, time does not run until the plaintiff discovers, or could on reasonable inquiry have discovered, that damage has been sustained.”

36 These remarks confirm, authoritatively, that, for the purposes of calculating limitation periods under the Limitation Act in the case of claims in negligence for economic loss, time may run (absent a special statutory provision) before the plaintiff discovers, or could on reasonable inquiry have discovered, that damage has been sustained.

37 Thus, in the present case, time ran even during the period when Mr Christie was ignorant of the fact that he was suffering or could suffer loss.

  1. [109]
    In Christie the losses suffered were capable of identification and quantification at specific dates, which put Mr Christie’s claim outside the limitation period.  
  2. [110]
    The complaint about paragraph 56(b) is that the plaintiff’s not becoming aware of the first defendant’s breaches until she was provided with the new will file is of no significance and inconsistent with her case against the second defendant in which she argued, in effect, that a copy of the new will file should have been obtained, and provided to her, between June 2012 (the end of Mr Boyd’s retainer) and September 2018 (when she received it).
  3. [111]
    The plaintiff understood the first defendant’s complaints about this paragraph to be, in effect, that the paragraphs did not mean anything or they flagged the existence of a “pre-emptive strike on a limitation defence”. 
  4. [112]
    The plaintiff said the paragraphs did none of those things:

56(a) to (c) are simply there to demonstrate that Mrs Talbot suffered the loss because for her to suffer the loss, what needs to happen if Mr Boyd needs to fail to give the advice, she needs to fail to do what she might have done had she had the advice, and the limitation period needs to expire.  So all 56(a) to (c) are telling you is that she didn’t, or in the case of (c) did, the things that are necessary to demonstrate that she suffered the loss … Mr Boyd didn’t give the advice that he should have given and in effect, Mrs Talbot didn’t go and do those things in any event.

  1. [113]
    Having regard to that clarification, I do not need to take the matter further.

Other alleged deficiencies

  1. [114]
    The first defendant argued that there were problems with the pleading of the first three retainers, as set out in his written submissions. 

Paragraphs 8, 18 and 25

  1. [115]
    The complaint is that these paragraphs plead that Mr Boyd, rather than the firms of which he was a member, was retained by Mr Talbot.  That does not appear to be so.
  2. [116]
    Paragraph 8 pleads that Mr Tablot “retained HBB [a firm] by Mr Boyd”.  Also paragraph 8 appears immediately under the heading “The retainer of HBB by Mr Boyd for the preparation of the 2002 Will”.
  3. [117]
    Paragraph 18 appears immediately under the heading “The retainer of HBB and then HBBCL, by Mr Boyd, for continuing advice including in relation to the appropriateness of the 2002 Will”.  Paragraph 18 states:

Mr Boyd, by the firms he was a member of from time to time, acted continuously for Mr Talbot from the time of the making of the 2002 Will until his death, including, as is inferred from the matters pleaded in paragraphs 22 – 24 below, in relation to the appropriateness of the 2002 Will. (The Continuing Advice in Relation to the 2002 Will Retainer).

  1. [118]
    The opening part of paragraph 25 states:

No later than 23 November 2007, Mr Talbot retained Mr Boyd (the New Will Retainer) …

  1. [119]
    The paragraph has to be read in context.  That context include the chronology of the pleadings, and the Mr Boyd’s professional history, which is set out in paragraph 4 of the statement of claim.  It includes:
  1. Mr William Francis Boyd (Mr Boyd):

(a) is a legal practitioner practicing in the State of Queensland;

(b) between in or about 4 May 1999 and 31 March 2003 was a member of the firm of solicitors practicing under the name or style of Hogan Besley Boyd (HBB);

(c) between in or about 24 February 2003 and 30 April 2007 was a member of the firm of solicitors practicing under the name or style of Hogan Besley Boyd Commercial Lawyers (HBBCL);

(d) from in or about 1 March 2007  has practiced as a solicitor under the name or style of Boyd Legal (BL), the First Defendant;

(e) was retained as a solicitor by Mr Talbot from at least 1995 until the date of death, on terms which are described in Parts B, F and J and below;

(f) and consequently the firms he was a member of from time to time, as pleaded in (a)-(c) above, were retained by Mr Talbot over the relevant periods alleged;

  1. [120]
    By 23 November 2007, Mr Boyd was practicing as Boyd Legal.
  2. [121]
    There was a previous complaint made by the first defendant (in earlier submissions, read on the application before me) that the pleading is defective because it refers to a non-existent “partnership” (Boyd Legal (A firm)) and the partnership cannot be liable in respect of an alleged retainer of “HBB by Mr Boyd”.  In response to that complaint, the plaintiff says that Mr Boyd was sued in the name or style in which he chose to practice as permitted by rules 89 and 90.  Regardless, the plaintiff has offered to amend the description of the first defendant if required.
  3. [122]
    The first defendant claims that there are no facts pleaded which identify –
  • by reference to when Mr Boyd became, and in turn ceased to be, a member of either HBB or HBBCL, what advice each person should have given, when they should have given it and what difference it might have made;
  • precisely when Mr Boyd, through either HBB or HBBCL, was retained by Mr Talbot and the circumstances of any such retainer;
  • whether each retainer was oral, in writing or implied by conduct and the scope and terms of that retainer;
  • how (or if) the communications pleaded in paragraphs 22 – 24 came to express a solicitor’s retainer.
  1. [123]
    The dates of Mr Boyd’s memberships of the firms HBB and HBBCL are pleaded in paragraph 4.
  2. [124]
    I assume the complaint about the absence of pleaded facts about the “advice” each person should have given is a complaint that the allegations, about the failure to give advice under the several retainers, do not refer to HBB or HBBCL. 
  3. [125]
    Reading the statement of claim as a whole, including the headings, and reasonably, the advice which a solicitor, retained to draft the 2002 will and exercising care, diligence and skill, would have given is pleaded in paragraph 16.  Paragraph 17 pleads the advice which HBB and Mr Boyd failed to give.  Paragraph 20 pleads the advice which HBB, HBBCL and Mr Boyd failed to give in pursuance of the Continuing Advice in Relation to the 2002 Will Retainer. 
  4. [126]
    When the advice should have been given may be reasonably inferred from the statement of claim – that is, for the 2002 will retainer, at least before the will was executed; and in pursuance of the continuing advice retainer, after the will was executed and as Mr Talbot’s circumstances materially changed, as pleaded in Part I of the statement of claim.
  5. [127]
    I agree that the difference the advice would have made has not been pleaded – it should be.   The pleadings should deal with what it is said would have occurred, in terms of the content of the will, had the advice been given or investigations been undertaken.  In other words, causation must be pleaded in relation to the 2002 Will Retainer and in relation to the Continuing Advice in Relation to the 2002 Will Retainer.  Accordingly, the pleading of those retainers should be struck out, with leave to replead, to address this deficiency.
  6. [128]
    As to when Mr Boyd was retained, and the nature of the retainer, I consider that the pleadings adequately convey the allegations about those matters.  The scope and terms of each of the retainers may be inferred if they are not expressly stated. 
  7. [129]
    Paragraph 8 pleads the New Will Retainer in terms which assert that a retainer to draft a will was implied by conduct. 
  8. [130]
    The pleadings plainly intend to convey that the retainer of Mr Boyd (via the firms) to give continuing advice about the appropriateness of the 2002 Will is to be inferred by the conduct pleaded in paragraph 18 – that is that he acted continuously for Mr Talbot.  I note also the content of paragraph 22.  Having said that, paragraph 18 itself does not plead that Mr Boyd (via his firms) was retained for the purposes of the Continuing Advice in Relation to the 2002 Will Retainer.  Having regard to the heading, that was intended, but it should be clarified in the paragraph itself.
  9. [131]
    As to whether the communications pleaded in paragraphs 22 – 24 express a solicitor’s retainer, in my view, it is plain that paragraph 22 is relevant to the Continuing Advice in relation to the 2002 Will Retainer insofar is it concerned Mr Boyd’s law firms.  Paragraph 23 and 24 are relevant to that retainer insofar as it concerns Mr Boyd after 1 March 2007 (the date upon which he commenced practice as Boyd Legal).

Paragraphs 19(a) and 20

  1. [132]
    Paragraph 19 states:
  1. Over the period from the making of the 2002 Will to the time of Mr Talbot’s death, in the course of so acting for Mr Talbot, Mr Boyd, by the firms he was a member of from time to time, pursuant to the Continuing Advice in Relation to the 2002 Will Retainer:

(a) assumed the responsibility of reviewing from time to time whether Mr Talbot’s 2002 Will remained appropriate for his circumstances, and advising Mr Talbot accordingly, as evidenced by the matters pleaded at paragraphs 22-24 below; and

(b) consequently, had the duties to Mr and Mrs Talbot in relation to giving such advice as pleaded at Parts B and D above.

  1. [133]
    For ease, I will set out paragraph 20 again, although it also appears above:
  1. By reason of the matters pleaded in paragraphs 16 above, Mr Boyd, by the firms he was a member of from time to time, should have advised Mr Talbot that his 2002 Will was not appropriate for his circumstances, and the failure to do so was a breach of his duties pleaded in paragraph 17 above.
  1. [134]
    The first defendant complains that the allegations in subparagraphs 19(a) and 20, that the Will was not “appropriate for [Mr Talbot’s] circumstances” are vague and unsupported by an adequate pleading of material facts or particulars.
  2. [135]
    Paragraph 19 appears under the heading “HBB, HCCL and Mr Boyd owed a duty of care to Mr Talbot and Mrs Talbot in respect of the giving of continuing advice in relation to the appropriateness of the 2002 Will”.
  3. [136]
    In context, the purpose of paragraph 19 is to explain the way in which the alleged duties (referred to in 19(b)) arose – namely in the context of the Continuing Advice Retainer which required a review or update of the will, as acknowledged by the first defendant as described in paragraphs 22 – 24 of the statement of claim. 
  4. [137]
    Thus, the essence of the allegation in paragraphs 19(a) is that the first defendant assumed the responsibility of reviewing from time to time the 2002 Will.  The essence of paragraph 19(b) is that, having assumed responsibility of that kind, which necessarily required the provision of advice, the first respondent had, in its exercise, the duties pleaded in Parts B and D of the statement of claim.
  5. [138]
    Part B contains paragraph 10 which pleads:
  1. In the premises of those matters alleged in paragraphs 1-4 and 8-9 above:

(a) It was an implied term of the 2002 Will Retainer that HBB and Mr Boyd would exercise reasonable care, diligence and skill in performing the 2002 Will Retainer;

(b) HBB and Mr Boyd owed Mr Talbot a concurrent duty at law, consistent with the contractual duty alleged in the preceding subparagraph.

  1. [139]
    Part D contains paragraph 15 which pleads:
  1. In the premises of those matters alleged in Part A, Part B, Part C above, and particularly paragraph 11 above, HBB, by Mr Boyd, owed a duty to Mrs Talbot to exercise reasonable care, diligence and skill in performing the 2002 Will Retainer.
  1. [140]
    Any vagueness around the words “appropriate for [Mr Talbot’s] circumstances” does not detract from the essence of that which is pleaded in paragraph 19 – that is, that the retainer required the first defendant to review the will from time to time, applying reasonable care, diligence and skill.
  2. [141]
    The plaintiff submits that, on its face, paragraph 20 plainly alleges that Mr Boyd did not advise Mrs Talbot in accordance with the practice of a competent solicitor as set out in paragraph 16 of the statement of claim.
  3. [142]
    I have dealt with paragraph 20 above.
  4. [143]
    Subject to the correction I mentioned above about paragraph numbers, in my view the paragraphs adequately convey the case the first defendant has to meet in this regard.

Paragraphs 38 and 39

  1. [144]
    Paragraphs 38 and 39 state:
  1. It may be inferred that by 10 December 2008 Mr Boyd had received advice from Mr Peterson of the imperative for Mr Talbot creating the Interim Will as a matter of urgency to reflect his instructions as best possible, whilst a more detailed will was prepared, to guard against Mr Talbot’s wishes not being given effect at all if he were to die whilst a final will was being prepared.
  1. It may be inferred from each of the New Will Retainer and the Continuing Advice in Relation to the 2002 Will Retainer, and in any event, in the absence of any objection from Mr Talbot, Mr Boyd had standing instructions, and in any event implicit instructions, to have the Interim Will prepared by mid to late December 2008 for immediate execution by Mr Talbot.
  1. [145]
    The complaint about these paragraphs is that they “impermissibly plead inferences” without pleading the material facts or particulars which would support them, contrary to rule 150(2) of the UCPR.  The relevant part of the rule states:

150 Matters to be specifically pleaded

(1) Without limiting rule 149, the following matters must be specifically pleaded –

(a) …;

…;

(x) ...

(2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.

  1. [146]
    The inference alleged in paragraph 38 is the inference that Mr Boyd received certain advice from Mr Peterson, the barrister.
  2. [147]
    The inference alleged in paragraph 39 is the inference that Mr Boyd had certain instructions about the interim will.
  3. [148]
    Paragraphs 38 and 39 are within Part K of the statement of claim which is headed “The extent to which Mr Boyd attempted to execute the New Will Retainer”.  As an aside, I mention that in my view there is ambiguity in this heading, although it is not strictly a paragraph in the statement of claim and there is no application made in respect of it.  On its face, it is unclear whether it is meant to indicate that the paragraphs within Part K deal with the steps Mr Boyd took to have Mr Talbot execute the New Will, or the extent to which Mr Boyd himself “attempted to execute” in the sense of “perform” the New Will Retainer.  Clarifying the heading is a matter for the plaintiff. 
  4. [149]
    Part K has the following chronology:
  • Paragraphs 26 pleads Mr Talbot’s contact with Mr Boyd, on 26 May 2008, chasing an update about the progress of the New Will;
  • Paragraph 27 pleads Mr Boyd’s report to Mr Talbot about his progress on 26 May 2008, in which he explains that he is waiting on certain documents which he has discussed with Lynne (obviously Lynne Gardner, who is obviously Mr Talbot’s assistant);
  • Paragraph 28 pleads Ms Gardner’s email to Mr Boyd, dated 26 May 2008, about those documents and when to expect them;
  • Paragraph 29 pleads Mr Boyd’s email to Ms Gardner, dated 22 July 2008, seeking other documents;
  • Paragraph 30 pleads Mr Boyd’s email to Ms Gardner, dated 5 August 2008, seeking other documents;
  • Paragraph 31 pleads Ms Gardner’s response to that request;
  • Paragraph 32 pleads Ms Gardner’s sending relevant documents to Mr Boyd as attachments to an email dated 7 August 2008;
  • Paragraph 33 pleads Mr Boyd’s seeking and receiving instruction to brief counsel (Mr Peterson) for advice about Mr Talbot’s succession planning and his new will to give effect to Mr Talbot’s instructions;
  • Paragraph 34 pleads Mr Boyd’s sending a brief to Mr Peterson on 8 October 2008, which contained Mr Talbot’s instructions, which are pleaded in paragraph 35;
  • Paragraph 36 pleads Mr Talbot’s contact with Mr Boyd, on 4 December 2008, following up on the progress of his will;
  • Paragraph 37 pleads an email from Mr Boyd to Mr Talbot, dated 10 December 2008, in which Mr Boyd said (among other things) that he and the barrister agreed that an interim will, encompassing Mr Talbot’s instructions, ought to be prepared while Mr Boyd reviewed Mr Talbot’s corporate structures and that Mr Boyd was then working on the interim will and would be ready to discuss it with Mr Talbot the next week.
  1. [150]
    The intended basis for the inference asserted in paragraph 38 is obvious – that is, it is said to arise from the matters pleaded in paragraphs 26 to 37, and perhaps in particular, the communication pleaded in paragraph 37.  Whether the pleaded facts do bear the inference they are said to bear (in terms of urgency) is not a matter for me.  The facts from which the inference is claimed to arise have been pleaded in accordance with rule 150(2).
  2. [151]
    The facts which are claimed to support the inference asserted in paragraph 39 are stated in the paragraph itself – that is, the two named retainers and the standing or implied instructions.  In context, the standing or implied instructions are themselves, plainly, to be inferred from the matters pleaded in 26 to 37.  The facts from which the inference is said to arise have been pleaded.  Whether the inference asserted does in fact arise is not a matter for me.

No link between breaches of duty and loss

  1. [152]
    The first defendant complained that there was “no proper articulation of the relevant material facts which would establish the causal link between the alleged breaches of duty and the loss suffered by the plaintiff” in respect of the first three retainers.  I have dealt with this in relation to the 2002 Will Retainer and the Continuing Advice in Relation to the 2002 Will Retainer.  The statement of claim must also plead causation in respect of the breaches alleged in relation to the New Will Retainer.

Defect in the pleading of the 2002 Will Retainer: that the claim concerns the losses to the estate – not to Mrs Talbot

  1. [153]
    In written submissions it was submitted that there was an additional and significant defect in the pleading of the 2002 Will Retainer – namely that it was drafted on the basis that the estate, not Mrs Talbot, had a claim against Mr Boyd.  The first defendant submitted that any duty owed by Mr Boyd to the plaintiff in relation to the 2002 Will Retainer was in her capacity as a disappointed beneficiary, but the pleading of the 2002 Will Retainer focused on losses suffered by the estate and it was, insofar as Mrs Talbot was concerned, untenable.  I note that Mrs Talbot’s alleged losses, as a consequence of the delay in the administration of the estate because of the way in which the 2002 will was drafted, are pleaded in Part N, paragraph 48. 
  2. [154]
    The first defendant did not deal with this complaint in oral submissions.  His written submissions did not refer to any relevant authority. 
  3. [155]
    I could not find in the plaintiff’s written submissions a response to this argument, nor did I detect one in oral submissions.
  4. [156]
    In those circumstances, I do not consider it appropriate to consider further whether or not Mrs Talbot has a claim against Mr Boyd arising out of the way in which the 2002 will was drafted.  That is a complex issue which should not be determined in the context of this strike out application.    

Limitation arguments

  1. [157]
    As I have mentioned, the first defendant argues that there is no point in my granting leave to replead because the plaintiff’s claims against him are statute barred.
  2. [158]
    The plaintiff’s primary response to this complaint is that the issue of the limitation period is not an appropriate one to agitate on a strike out application before a defence has been filed, raising that defence and pleading relevant facts.  She also argued that the first defendant’s argument was of no substance.
  3. [159]
    On the procedural point, the plaintiff argued that it was not part of the plaintiff’s cause of action that her claims were not statute barred.  A limitation point is one to be raised by way of confession and avoidance.  The plaintiff relied upon Pullen v Gutteridge Hashin & Davey Pty Ltd.[15]  In that case, the Court of Appeal was surprised at the suggestion that it was for the plaintiff in an action for negligence to show that the cause of action arose within the limitation period.  After considering relevant authorities, the Court of Appeal stated that –
  • it was for the plaintiff to plead and prove the elements of their cause of action;
  • if the accruing of the cause of action in time was no part of the cause of action, then the plaintiff did not have to allege or prove it;
  • the plea of the statute of limitations was in confession and avoidance, and a defendant must plead it if they wish to available themselves of it. 
  1. [160]
    At page 75, it was said:

As the decisions just cited illustrate, two things follow from the proposition that it is no part of a cause of action that time has not run under a statute of limitations which merely bars the remedy.  The first is that the defendant must plead the statute if he wishes to avail himself of it: for when he says that time has run he is not traversing an allegation which the statement of claim should contain, but confessing and avoiding.  The second is that the statement of claim is not demurrable (nowadays, may not be made the subject of an objection in point of law) by reason of its failure to show that the cause of action arose within the limitation period.  

  1. [161]
    The plaintiff also relied upon Wardley Australia v Western Australia,[16] in which Mason CJ, Dawson, Gaudron and McHugh JJ spoke of the undesirability of dealing with a question of this kind in interlocutory proceedings:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.  Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question …

  1. [162]
    Toohey J made similar remarks at [41].
  2. [163]
    The plaintiff referred me to the decision of the Queensland Court of Appeal in Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [17] which referred to Wardley, to make the point that summary judgment based on a statute of limitations should be granted only where sufficient is known of the alleged damage sustained by the plaintiff, and the circumstances in which it was sustained, to determine the issue ahead of a full hearing of the action.
  3. [164]
    Having regard to those authorities, it is not appropriate for me to make any determination at this stage of proceedings about whether all of the claims against the first defendant are statute barred. 
  4. [165]
    The complexity of that argument was apparent from the submissions of substance.  They concerned the application of the dicta from Deane J in Hawkins v Clayton[18] in the context of Wardley, to the facts of this case – which at this point are limited to those stated in the statement of claim.  The dicta was to the effect that a cause of action for a wrongful act is not statute barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of proceedings.  Wardley is authority for the proposition that it was not enough for a plaintiff to show that they did not know about, and could not upon reasonable inquiry have discovered, the loss to allow them to bring proceedings within time: the negligent act of the defendant must have made it impossible to bring proceedings within time. 
  5. [166]
    The argument is not one for summary determination by way of a strike out application.   

Footnotes

[1]Or perhaps as soon as Mr Bret’s conduct demonstrated that loss would be suffered by reason of his appointment, being no later than 2011.

[2][2008] QSC 213.

[3]Ibid at [14].

[4]Ibid at [15]

[5]Ibid at [16].

[6][2016] QSC 232.

[7][2007] QSC 209.  

[8]Thiess at [38].

[9](1986) 69 ALR 660 at 706.

[10](2005) ATPR 42-053 at [59].

[11]Dal Pont, Lawyers Professional Responsibility, Lawbook, NSW, 2017 at [6.05].

[12]Ibid [6.25] – [6.30].

[13]Looseleaf, Lexis Nexis, October 2018 [25210], [25220].

[14][2007] NSWCA 182 at [36].

[15][1993] 1 VR 27 at 72.

[16](1992) 175 CLR 514 at [31].

[17][2015] 1 Qd R 476.

[18](1988) 164 CLR 539 at 590.

Close

Editorial Notes

  • Published Case Name:

    Talbot v Boyd Legal (A Firm) & Anor

  • Shortened Case Name:

    Talbot v Boyd Legal (A Firm)

  • MNC:

    [2019] QSC 80

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    29 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 80 29 Mar 2019 First Defendant's application for strike-out granted in part: Ryan J.

Appeal Status

No Status