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Wood v Robertson O'Gorman Solicitors Pty Ltd[2022] QCA 201

Wood v Robertson O'Gorman Solicitors Pty Ltd[2022] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

Wood v Robertson O'Gorman Solicitors Pty Ltd [2022] QCA 201

PARTIES:

IAN ANDREW WOOD

(appellant)

v

ROBERSTON O'GORMAN SOLICITORS PTY LTD

ACN 605 886 897

(respondent)

FILE NO/S:

Appeal No 3677 of 2022

SC No 9043 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 24 (Bowskill SJA)

DELIVERED ON:

14 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2022

JUDGES:

Morrison and Flanagan JJA and Beech AJA

ORDERS:

  1. 1.Appeal dismissed.
  2. 2.The appellant pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellant instituted proceedings against the respondent claiming $3,000,000 for loss and injury suffered as a result of “professional misconduct” within the meaning of s 419 and s 420 of the Legal Profession Act 2007 (Qld) – where the respondent applied for summary dismissal on the basis the appellant had no standing to bring proceedings for “professional misconduct” – where the claim failed to comply with the provisions of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) – where the learned trial judge found the claim did not comply with r 22(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) – where the learned trial judge dismissed the proceeding under r 293 of the UCPR – where the appellant challenges the grant of summary judgment – whether the learned trial judge erred in exercising her powers under r 293 of the UCPR and improperly deprived the appellant of his opportunity for the trial of his case – whether the learned trial judge erred in finding the claim did not comply with the provisions of the PIPA – whether the appeal should be allowed

Civil Liability Act 2003 (Qld), s 52

Criminal Code (Qld), s 271

Legal Profession Act 2007 (Qld), s 416, s 419, s 420, s 435, s 436, s 452

Personal Injuries Proceedings Act 2002 (Qld), s 9

Uniform Civil Procedure Rules 1999 (Qld), r 22, r 293, r 375, r 379

Chen v Australian & New Zealand Banking Group Ltd & Anor [2001] QSC 43, cited

Haley v Roma Town Council [2005] 1 Qd R 478; [2005] QCA 3, cited

Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378; [2003] QSC 321, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

COUNSEL:

The appellant appeared on his own behalf

A I O'Brien for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Robertson O'Gorman Solicitors Pty Ltd for the respondent

  1. [1]
    THE COURT:  In August and October 2018, Mr Wood retained Robertson O'Gorman Solicitors (ROG), to act for him in relation to three charges: (i) assault occasioning bodily harm; (ii) obstructing police; and (iii) wilful damage.
  2. [2]
    Mr Kurz of ROG was assigned as the solicitor with day-to-day carriage of Mr Wood’s criminal matters.
  3. [3]
    On 26 November 2018, ROG wrote to Mr Wood, giving notice of their intention to withdraw as solicitors on the record.  They did so on 12 December 2018.
  4. [4]
    Mr Wood retained another solicitor and then eventually represented himself.
  5. [5]
    On 27 February 2019 the prosecutor provided Mr Wood with a full brief of evidence in respect of the charges for wilful damage and obstruct police.  The complainant’s statement referred to her seeing Mr Wood’s car on the day of the wilful damage offence.
  6. [6]
    On 31 May 2019 Mr Wood sent the prosecutor an affidavit from a car mechanic, stating that Mr Wood’s car was in the repair garage on the day of the offence.
  7. [7]
    On 6 June 2019 the prosecutor indicated that the charges for wilful damage and obstruct police would be discontinued.  Those charges were then discontinued.

Mr Wood’s claim against ROG

  1. [8]
    By Claim filed on 17 August 2021,[1] Mr Wood instituted proceedings against ROG, claiming $3,000,000.  The Claim simply stated:

“The plaintiff claims: $3,000,000 plus interest under the Supreme Court Act of 1995 plus costs

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

  1. [9]
    The Statement of Claim[2] includes allegations that ROG through Mr Kurz:
    1. (a)
      “consistently and intentionally mislead the plaintiff with relation to the laws surrounding the charge [ROG] had been contracted to defend him against”;[3]
    2. (b)
      “failed to respond to numerous questions from the plaintiff with regard to the laws surrounding the charge…”;[4]
    3. (c)
      “failed to obtain evidence material to the plaintiffs (sic) defence of the charges, including but not limited to CCTV footage of the plaintiff in custody…”, which “not only damaged the plaintiff’s possibility of being successful at trial but also damaged his ability to recover costs in a malicious prosecution claim”, and also failed to obtain “a full brief of evidence”;[5]
    4. (d)
      “failed to act in the best interests of the plaintiff”;[6] and
    5. (e)
      “attempted to fraudulently convince the plaintiff to plead guilty to criminal acts that he was, in fact, innocent of”;[7]
    6. (f)
      “failed to act in a manner consistent with the requirements of a solicitor under sections 2.1, 3.1, 4.1.1, 4.1.2, 4.1.3, 4.1.5, 5.1.2, 7.1.1, 8.1, 13.1, and 24.l.1 of the Australian Solicitors Conduct Rules 2012 as well as section 419 (l)(a) and 420 (1) (a) of the Legal Profession Act (QLD) 2007”;[8] and
    7. (g)
      advised that he should plead guilty.[9]
  2. [10]
    Then, the Statement of Claim made these allegations:[10]
  1. “14.During the course of the acting on behalf of the plaintiff during this period, Remy Kurz (acting on behalf of Robertson O'Gorman Solicitors) engaged in behaviour that is consistent with the definitions of professional misconduct as set out in the Legal Profession Act (QLD) 2007 and the Australian Solicitors Conduct Rules 2012. This behaviour included:
  1. a)A failure to follow their clients lawful and competent instructions;
  2. b)A failure to act ethically and in accordance with the principles of professional conduct established by the common law and the Australian Solicitors·Conduct Rules 2012;
  3. c)A failure to ensure the proper administration of justice;
  4. d)A failure to act in the best interests of the client;
  5. e)A failure to be honest in the course of legal practice;
  6. f)A failure to deliver legal services competently, diligently, and promptly;
  7. g)A failure to provide clear and timely advice to assist the client to understand relevant legal issues;
  8. h)Unlawful termination of engagement;
  9. i)A failure to obtain relevant evidence that proved the plaintiffs innocence.
  1. 15.As a result of the Defendant’s professional misconduct, the plaintiff has suffered loss and injury. Consequently, the plaintiff is seeking the following damages:
  1. a)Pure financial loss (past and future),
  2. b)Pure mental damage,
  3. c)aggravated damages
  4. d)special damages.”
  1. [11]
    Mr Wood claimed the following relief as a result of ROG’s professional misconduct:[11]

“Financial Loss (past and future) based on previous tax returns, expenditure associated with self-representation (receipts for copying, transport, transcripts, funds paid to [ROG] for defence) $120,000.00

Mental Damage (depression, anxiety, loss of relationships, cost of ongoing psychiatric treatment) $1,000,000.00 (based on relevant case law and psychiatric assessment)

Aggravated Damages (humiliation, loss of dignity, shame) (based on relevant case law and psychiatric assessment) $680,000.00

Special Damages (damage to malicious prosecution charge) (based on relevant case law) $1,200,000.00

Interest $408,271.35 (court interest calculator from 15\10\\2018 – 17\08\2021)

Total - $3,408,271.35.”

The application for summary judgment

  1. [12]
    ROG applied for judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), and alternatively to strike out the statement of claim, wholly or in part.
  2. [13]
    The learned primary judge dismissed the proceeding under r 293 and refused to allow an amendment that was sought by Mr Wood in the course of oral submissions.[12]  Mr Wood now appeals against those decisions.  At the heart of Mr Wood’s appeal is his challenge to the latter decision, which in turn founds his challenge to the grant of summary judgment.
  3. [14]
    The learned primary judge found that the Claim did not comply with r 22(2)(a) of the UCPR as it did not state the nature of the claim made or relief sought in the proceeding.  Her Honour observed that “To simply demand a sum of money is not sufficient”.[13]
  4. [15]
    In our respectful view, that finding, which is not challenged on appeal, was correct.
  5. [16]
    Rule 22(2)(a) requires the Claim itself to state “the nature of the claim made or relief sought in the proceeding”.[14]  The Claim did not do that.  It simply claimed a money sum.  That defect is not cured by stating (in the Claim) that the claim is made “in reliance on the facts alleged in the attached Statement of Claim”.
  6. [17]
    The learned primary judge found:[15]
  1. “[7]
    It is not in dispute that:
  1. (a)
    the plaintiff’s retainer of ROG was limited to acting for him in relation to the criminal charges referred to above;[16]
  2. (b)
    although Mr Kurz, of ROG, provided advice to the plaintiff in relation to those charges, the plaintiff did not accept or act on that advice;
  3. (c)
    whilst ROG were acting for the plaintiff, he did not enter a plea of guilty to any of the charges; and
  4. (d)
    ROG did not obtain a brief of evidence whilst it was acting for the plaintiff; but the plaintiff did obtain a brief of evidence not long after ROG ceased to act.”
  1. [18]
    In our respectful view, those findings were correct.  Indeed, Mr Wood accepted them to be so in his written submission below, though in the course of oral argument before this Court he quarrelled with the proposition that he did not accept ROG’s advice.  His resistance to that proposition was odd, for the reasons set out below in paragraphs [19] to [21].
  2. [19]
    In his written submission below Mr Wood asserted that he believed the following facts were “uncontroversial”:[17]
    1. (a)
      he retained ROG in August 2018 to defend him on a charge of assault occasioning bodily harm;
    2. (b)
      Mr Kurz was given carriage of the matter;
    3. (c)
      on 15 October 2018, Mr Wood was charged with wilful damage and obstruct police;
    4. (d)
      ROG and Mr Kurz began acting for Mr Wood in respect of those charges on 15 October 2018;
    5. (e)
      ROG advised Mr Wood to plead guilty to the charges;
    6. (f)
      ROG terminated the retainer on 26 November 2018 and withdrew from the record on 12 December 2018;
    7. (g)
      Mr Wood did not enter a plea in respect of any charges while ROG were representing him; and
    8. (h)
      after ROG terminated the retainer Mr Wood;
      1. acted for himself and ordered a full brief of evidence;
      2. the Prosecution provided the full brief of evidence;
      3. Mr Wood obtained an affidavit providing alibi evidence;
      4. he provided said affidavit to Prosecutor; and
      5. on 10 June 2019, the morning of the trial, the Prosecution offered no evidence.
  3. [20]
    As can be seen, the basis of the case advanced by Mr Wood was that he did not accept or act on the advice to plead guilty.
  4. [21]
    Further, Mr Wood’s resistance to accepting ROG’s advice was evident from the evidence of the email exchanges between him and ROG:[18]
    1. (a)
      on 16 October 2018 he asked ROG to obtain the video/audio recording as to his time in custody at Indooroopilly Police Station on the night of 15 October;[19] this was to expose what Mr Wood guessed to be a likely lie on the QP9, i.e. that he refused to participate in an interview; he also asked ROG to obtain the CCTV footage from the shopping centre involved in the charge of obstruct police;
    2. (b)
      on 29 October 2018 Mr Kurz said he would review the instructions “in light of the CCTV, whenever it arrives”, and “in respect of the new charges, I need to see the QP9 before requesting disclosure”;[20]
    3. (c)
      on 8 November 2018 Mr Kurz emailed Mr Wood, discussing the prospects of self-defence as an answer to the assault charge, and seeking instructions as to how Mr Wood wanted to proceed:[21]

“I have now viewed the CCTV of the assault. You were hit by the paling but the complainant was quickly on the ground. At that stage he was no longer a threat to you. In my view, your actions in hitting him (I counted 15 times) were not proportionate. As a result a defence of provocation or self-defence is unlikely to be successful.

My advice is that we re-write the ‘facts’ of the matter to more align with your version and the CCTV. I can make reference to the short period which the assault occurred and that it is essentially an offer to plead guilty on the basis of excessive self-defence.

That gives you a good chance of avoiding imprisonment but does not guarantee it.

I did a similar case last year and it went very well, that person had a worse history than yours but the complainant was not an invalid.

I am yet to receive the CCTV for the other charges and will provide you with advice at that time.

Otherwise please let me know if you would like to proceed on the above basis, which involves an offer to plead guilty but only if the facts in relation to the matter can be adequately amended.”

  1. (d)
    on 21 November 2018 (3.24 pm), ROG advised that they had received the “CCTV for the wilful damage and the body worn cam for the obstruct”; further, they would be reviewed over the following two days and advice would be given to Mr Wood;[22]
  2. (e)
    23 minutes later (3.48 pm) Mr Wood responded:[23]

“No worries. Remember what you said, “unless it shows Ian Wood keys in hand I’ll be pleading not guilty and demanding the legal costs be covered.” Now I’m guessing you got the phrase ‘keys’ from the qp9 (still haven't received a copy) and since no keys were used I’m going to be interested to see how this plays out.”

  1. (f)
    at 3.53 pm on 21 November 2018 Mr Kurz sent a copy of the QP9 to Mr Wood, advising that it used the term “keyed” in it in respect of the wilful damage charge;[24]
  2. (g)
    Mr Wood responded at 4.11 pm on 21 November 2018:[25]

“Well if he’s used the word ‘keyed’ and no keys were used then obviously he’s making shit up. And that qp9 is as full of bullshit as the other one. Also you failed to answer my questions regarding what happens to sergeant Leonard and Greg skilleter for lying to a court. Please answer these now as I do NOT want to have to ask you again.”

  1. (h)
    on 22 November 2018 (3.02 pm) ROG advised Mr Wood that the footage disclosed by the police had been reviewed; several photos were provided and he was advised that Mr Kurz was of the opinion that because of various similarities with Mr Wood, “there is a likelihood that the Court would find that you were the person on the CCTV”; Mr Kurz then said, “Of course, as with your other matter, you ultimately have to provide instructions on how you would like to proceed”; Mr Wood was advised that he should plead guilty to the wilful damage charge and seek to have the police withdraw the charge of obstructing police;[26]
  2. (i)
    on 22 November 2018 (9.11 pm) Mr Wood responded:[27]

“Perhaps now I can get an answer on whether or not it’s legal for an officer to arrest someone on the grounds of new evidence, say they’re taking them to one police station, take them to another police station, throw them in a cell, not show them any evidence, not question them, not allow them to call their lawyer, then charge them and throw them out on the street.”

  1. (j)
    on 23 November 2018 (8.31 am) Mr Kurz emailed Mr Wood, explaining with regard to the night at Indooroopilly Police Station, that the right to speak to a lawyer arises if police intend to question a person, and the police evidently did not seek to question him that night;[28]
  2. (k)
    on 23 November 2018, Mr Wood asked for an explanation as to the defence of self-defence under s 271 of the Criminal Code;[29]
  3. (l)
    about 30 minutes later on 23 November 2018 (4.42 pm), Mr Kurz advised that the defence had been carefully considered and that there were difficulties with it, as pushing the complainant over was reasonable but punching him when he was on the ground was not; Mr Kurz also advised that Mr Wood was wrong to think he was entitled to an interview (on the night he was taken to Indooroopilly Police Station); and advice was given as to the failure to mention a weapon (a stake) in the QP9; Mr Kurz also complained that Mr Woods’ tone in his emails had deteriorated “after the complainant decided against mediation”, and asked him to “frame your emails in a less aggressive manner”;[30]
  4. (m)
    six minutes later (at 4.52 pm) Mr Wood replied, focussing on s 271(2) of the Code;[31]
  5. (n)
    seven minutes later (4.59 pm) 23 November 2018, Mr Kurz responded in relation to the self-defence point, observing that “I do not think the nature of the assault reasonably caused an apprehension of death or grievous bodily harm”;[32]
  6. (o)
    nine minutes later (5.08 pm) Mr Wood replied, asking “And how are you making that call without having seen the weapon or a clear version of the cctv?”;[33]
  7. (p)
    a further six minutes later (5.14 pm) on 23 November 2018, Mr Wood responded to Mr Kurz: “How about this? I’ll bring it in and stab you with it and then you can explain to me how it’s not capable of causing serious injury or death”;[34] he was referring to the weapon, a stake;
  8. (q)
    then, two minutes later (5.16 pm), Mr Wood added: “Grievous bodily harm sorry since you’re inevitably going to get confused if I don’t use the right term”;[35]
  9. (r)
    and seven minutes later again (5.23 pm) Mr Wood added: “And just so we’re clear that was an invitation not a threat since you’re incapable of understanding anything without thorough explanation”;[36]
  10. (s)
    later that night, at 8.49 pm on 23 November 2018, Mr Wood emailed Mr Kurz:[37]

“Now for at least the third time Remy I’m going to ask you to obtain the footage from the cell I was in with regard to the willful damage charge where I repeatedly ask for a lawyer like I asked you to the day after it happened. Now I don’t want to hear any excuses or bullcensored out of your incompetent mouth, you’re just going to do as you’re bloody well told and if that footage is no longer available there will be a number of questions asked as to why you have failed to do as you were told and I’ll fire your censored for being the incompetent censored that you are. And the next time I censored ask you to censored well do something you’d censored better bloody well do it WITHOUT QUESTION.”

  1. (t)
    on 24 November 2018 (9.57 am) Mr Wood instructed ROG to “provide the full brief of evidence for the matter relating to assault occasioning bodily harm”, and to also “provide the full brief of evidence for the willful (sic) damage charge if it’s available or, if it’s not, as soon as it becomes available”;[38]
  2. (u)
    on 26 November 2018 Mr Wood emailed Mr Kurz: “Where are my answers and documents mate? I’m rapidly running out of patience.”[39]
  3. (v)
    at 3.06 pm on 26 November 2018 ROG emailed a letter to Mr Wood[40] terminating the retainer and advising that they would be withdrawing as solicitors on the record;
  4. (w)
    at 3.30 pm on 26 November 2018 Mr Rogers of ROG emailed Mr Wood:[41]

“I refer to my return call to you a moment ago. You hung up on me after very quickly accusing Remy of being a fraud. This is rejected and there is no basis to make such a claim.

As indicated by Remy and now me, we cannot continue to act for you given the threatening and very offensive nature of your repeated e-mail communications with Remy. I do not intend to call you again.”

  1. (x)
    at 3.43 pm on 26 November 2018 Mr Wood responded:[42]

“Fraud mate. As in he’s been charging me for your clerk to go get evidence when he hasn’t been doing anything of the sort. The fact that I’ve been told the evidence hadn’t been made available until recently. WHY WASN’T A SUMMARY CALLOVER APPLIED FOR IN THE FIRST INSTANCE??????????? I STILL after TWELVE WEEKS have NOT received a full brief of evidence yet Remy is telling me I should please guilty. How about the fact that he is telling me to plead guilty WITHOUT SEEING THE WEAPON WITH WHICH I WAS ATTACKED. Now I’m happy to go with another law firm but I would very strongly suggest you take the time to sit down and read Remy and my correspondence instead of believing someone who I strongly suspect is under the thumb of the police. Or perhaps you can offer me another explanation as to why he’s telling me to plead guilty to an assault occasioning bodily harm charge when I was attacked with what is clearly a deadly weapon.”

  1. (y)
    then at 3.46 pm Mr Wood added:[43]

“And the reason I hung up on you mate is because you OBVIOUSLY hadn’t taken the time to familiarize yourself with what’s been going on and were therefore wasting my time. Don’t do it again or you’ll get the same response.”

  1. (z)
    then at 4.12 pm on 26 November 2018 Mr Wood added another email:[44]

“See Dan it’s that kind of incompetence that made me angry. Now Remy has obviously come and spun you a horribly biased story to protect himself and get rid of me and if you want to believe him that’s fine. I WILL take the numerous emails I have from him to my new lawyer and I guess we’ll see what happens when it comes out that a criminal defense firm has been convincing their clients to plead guilty to charges they aren’t actually guilty of. Once again I’m going to suggest you take the time to familiarize yourself with the situation instead of getting super defensive and making mistakes but hey, it’s not my law firms reputation that's on the line.”

  1. (aa)
    on 27 November 2018 (11.22 am) Mr Wood emailed ROG:[45]

“Where’s the full brief of evidence? Where’s the footage from the cell I was I on the 15th of October? Where’s the answers to all the question I asked PRIOR to you dropping me (without grounds). At the time those questions were asked you were still acting as my counsel and unless I receive what I’ve asked for it will be added to the gross negligence claim along with a failure to secure evidence. I’d also like proof of all visits to court as evidenced on ALL invoices provided to date.”

  1. [22]
    It is, in our view, a fair summary of those exchanges to say that Mr Wood did not accept any advice from ROG.

Characterisation of Mr Wood’s claim

  1. [23]
    Before the primary judge, Mr Wood articulated the breaches by ROG as follows:[46]
    1. (a)
      failing to obtain a full brief of evidence;
    2. (b)
      advising him to plead guilty to the charges;
    3. (c)
      failing to obtain the CCTV footage of him in custody, despite being aware it would prove fraudulent statements made by the arresting officer in official court documents as well as breaches of his human rights.
  2. [24]
    The case pleaded by Mr Wood was one based upon alleged professional misconduct contrary to s 419 and s 420 of the Legal Profession Act.  As the learned primary judge found,[47] that was made clear in paragraph 10(b) of the Reply,[48] which stated:

“Denies that that the statement of claim fails to disclose a cause of action. The cause of action is professional misconduct as outlined in paragraph 11 of the claim which refers to sections 419 and 420 of the Legal Profession Act. If the defence wants it stated more clearly, the cause of action is Professional Misconduct.”

  1. [25]
    It was how Mr Wood characterised his claim when he sent two letters of demand to ROG.  One was entitled “Professional Misconduct Claim (Assault Occasioning Bodily Harm)”, and the other was entitled “Professional Misconduct Claim (wilful damage and obstruct police)”.[49]  They were in similar terms, including the following:[50]

“I contracted your firm to defend me against a charge of Assault Occasioning Bodily Harm on the 20th of August 2018. Your firm allocated Remy Kurz as the solicitor in charge of my matters. Your firm acted for me on this matter from the 20th of August 2018 until the 12th of December 2018 when your firm withdrew its advice on fraudulent grounds. During this period your firm advised me through Remy Kurz that I should plead guilty to this charge. During this period your firm refused to follow my lawful and competent instructions as a client, the result of which severely damaged my ability to be successful at trial. This includes but is not limited to the failure of Remy Kurz to apply for a full brief of evidence. It also includes but is not limited to the fact that Remy Kurz advised me to go in and give a statement with regard to the incident which allowed the prosecution to cross examine me at a separate trial BEFORE the trial Remy was SUPPOSED to be defending me on which gave the prosecution an opportunity to use that cross examination against me in my trial for the aforementioned AOBH. The behaviour exhibited by your firm and the solicitor Remy Kurz clearly shows that your firm was, in fact, working on behalf of the prosecution in an attempt to have your client found guilty of a crime of which he was actually innocent. This fact can be supported by the fact that after taking on the representation myself and ordering my own full brief of evidence, it became clear that the charge was fraudulent. As I suffered serious mental health issues prior to this ordeal (which is a direct result of your failure to act appropriately and lawfully) it has resulted in severe psychological damage including post traumatic stress disorder, suicidal thoughts and tendencies, loss of work, and loss of residence, to name a few. I will consequently need years of therapy in order to cope with this.”

  1. [26]
    It was also how Mr Wood characterised his own claim in his written submissions below:[51]

“Mr Wood has since made a claim of professional misconduct against ROG for their unsatisfactory professional service, which the plaintiff alleges constitutes professional misconduct as defined in section 419 and section 420 of the Legal Profession Act 2007.”

  1. [27]
    Then, in the same submissions this was said:[52]

“The Plaintiff has brought a claim against the defendant on the grounds that their conduct was in breach of a solicitors’ duty to their client. Mr Wood alleged that the behaviour of ROG in dealing with the Plaintiff constituted the unsatisfactory conduct of an Australian legal practitioner, and that the conduct involved a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and that the conduct happened in connection with the practice of law and that, if established, would justify a finding that the practitioner is not a fit and proper person to engage in legal practice. It is also alleged that this conduct contravened a relevant law. These facts are outlined in the statement of claim filed on the 17\08\2021 and reply to defence filed on 09\02\2022. In these documents Mr Wood alleges that defendant, whilst representing him, breached numerous sections of the Australian Solicitors Conduct Rules and that these breaches constitute professional misconduct as defined in sections 419 of the LPA 2007.”

  1. [28]
    The reference to the “not a fit and proper person” and the “relevant law” was to s 419 and s 420 of the Legal Profession Act.
  2. [29]
    Then, in the next paragraph:[53]

“Mr Wood alleges that ROG are in breach of sections 2.1, 3.1, 4.1.1, 4.1.2, 4.1.3, 4.1.5, 5.1.2, 7.1.1, 8.1, and 13.l of the Australian Solicitors Conduct Rules of 2012. The Plaintiff alleges that this conduct constitutes an act of professional misconduct as defined in section 420 of the LPA 2007.”

  1. [30]
    Mr Wood explained his cause of action during the hearing below, making it plain that he was not alleging professional negligence:[54]

“PLAINTIFF: Well, my understanding initially, your Honour, was that it would be professional misconduct on the grounds that professional misconduct is an intentional act as opposed to negligence, which would be an accidental act. My allegation is that Robertson O'Gorman knew exactly what they were doing and they intentionally attempted to coerce me to plead guilty to a crime I wasn’t guilty of in order to protect the arresting office, the Queensland Police Service and the Queensland government from recrimination.”

  1. [31]
    Mr Wood went on to reiterate that the claim was for professional misconduct on the basis that ROG had colluded with the prosecution:[55]

“However, the nature of his advice and the procedure in which he undertook to defend me or represent me was less than acceptable. It was not in my best interest and I will be putting to the court that it was, in fact, done on behalf of the prosecution, who knew they had no case, and Robertson O'Gorman acted for them in order to convince me to plead guilty to a crime they knew I wasn’t guilty of, again, in order to prevent embarrassment to the arresting officer, the Queensland Police Service and the Queensland government.”

  1. [32]
    The allegation that ROG colluded with the prosecution was maintained later during submissions, when Mr Wood referred to the charges collapsing:[56]

“PLAINTIFF: The indictment was withdrawn at the end of the second one after I proved that they had tampered with the video. They had put falsified evidence before the court in an attempt to have me found guilty of a crime they knew I was innocent of. Robertson O'Gorman also knew that. They acted on behalf of the prosecution in order to have me plead guilty to a charge I wasn’t guilty of because they knew that the prosecution’s case was so, so poor they had no chance of success.”

  1. [33]
    In our respectful view, the learned primary judge was correct to conclude that Mr Wood, as a private individual, had no right to bring a claim for professional misconduct.[57]  The only relevant person with such standing is the Legal Services Commissioner.

Application to amend

  1. [34]
    In the course of his oral submissions below Mr Wood made an instanter oral application to amend to claim professional negligence.[58]  The learned primary judge said she would keep that in mind and hear submissions about it.[59]  Mr Wood made no further submission as to amendment, saying “I’ve given my submission”.[60]
  2. [35]
    Counsel for ROG was asked if there were any submissions he wished to make in respect of the oral application to amend.[61]  The submissions were that the application should be refused because:[62] (i) there was no actual damage that could be properly articulated; (ii) any claim for personal injuries was now barred as being outside the three-year limitations period; and (iii) the charges were brought by the prosecution, not ROG, so that Mr Wood was always going to have to deal with them; nothing that ROG did was a necessary condition of the occurrence of harm, so that actual causation could not be made out.
  3. [36]
    We pause to note that Counsel appearing below for ROG had already submitted that even if the claim was reformulated as one for professional negligence there were real difficulties establishing a breach of duty.  Amongst those reasons were the fact that: (i) Mr Wood did not rely upon the advice he was given; to the contrary he challenged it as wrong; (ii) he had rejected the advice he said was wrongly given, i.e. that he should plead guilty; (iii) even though he complained that a full brief of evidence was not obtained by ROG, he obtained one before he was called on to plead; and (iv) he persuaded the police to drop the charges.
  4. [37]
    However, Counsel for ROG told her Honour that he was not inviting her Honour to decide that issue, given it was a summary judgment application.[63]

The primary judge’s reasons for granting summary judgment

  1. [38]
    Having found that the claim as framed was misconceived as a matter of law, the learned primary judge observed that a claim for professional negligence faces such hurdles that it was difficult to see how it could be made out:[64]
  1. “[19]
    It is difficult to see how the plaintiff could overcome the matters raised by the defendant and make out a claim for damages for professional negligence against the defendant (or, for that matter, the solicitor Mr Kurz or his supervisor, Mr Rogers). It is uncontroversial that the retainer was limited to acting for the plaintiff in relation to the criminal charges referred to above. It is also uncontroversial that the plaintiff did not rely upon the advice given to him by Mr Kurz in relation to those charges. He rejected the advice. Although the plaintiff complains about ROG’s failure to obtain the full brief of evidence, he was able to obtain that a short time later, in February 2019. The scope of the duty owed by ROG to the plaintiff is set by the terms of the retainer, such that it is also difficult to see how the plaintiff’s complaints about the failure to obtain the CCTV footage from when he was in custody on 15 October 2018, which is unrelated to the charges in respect of which ROG acted for him, could give rise to an actionable claim.”
  1. [39]
    The learned primary judge also adverted to the difficulties confronting such a claim because of the failure to comply with the provisions of the Personal Injuries Proceedings Act 2002 (Qld).[65]  However, her Honour declined to make a finding as to the success of such a claim.  Her Honour found that it was “an entirely new claim” and not an amended claim:[66]
  1. “[23]
    However, regardless of the hurdles that seem apparent, a claim for damages for professional negligence, whether comprising economic loss or damages for personal injury, would be an entirely new claim; not an amended claim. If the plaintiff wishes to pursue this option, that is a matter for him, but he would need to commence a fresh proceeding, with the filing of a Claim and Statement of Claim that comply with the UCPR. In so far as any such claim includes a claim for damages for personal injury, he will also need to ensure the pre-court procedures under the PIPA are complied with.”
  1. [40]
    In this passage, in substance the learned primary judge considered whether it would be appropriate, in the exercise of the discretionary power under r 375(1) UCPR, to grant leave to amend to add a claim for damages for professional negligence and determined that it was not.

Disposition of the appeal

  1. [41]
    In our respectful view, her Honour was correct in her analysis of the existing claim and its deficiencies, and the characterisation of the alternative professional negligence claim as being an entirely new claim.  The legal and factual foundation for such a claim is far removed from that in respect of professional misconduct.
  2. [42]
    The term “professional misconduct” is defined in s 419 of the Legal Profession Act 2007 (Qld) as including:
  1. “(a)
    unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
  2. (b)
    conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.”
  1. [43]
    In turn “unsatisfactory professional conduct” is relevantly defined in s 420 as:
  1. “(1)
    The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—
  1. (a)
    conduct consisting of a contravention of a relevant law …;
  2. (b)
    charging of excessive legal costs in connection with the practice of law;
  3. (c)
    conduct for which there is a conviction for—
  1. (i)
    a serious offence; or
  2. (ii)
    a tax offence; or
  3. (iii)
    an offence involving dishonesty;
  1. (d)
    conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
  2. (e)
    conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
  3. (f)
    conduct of an Australian legal practitioner in failing to comply with an order of a disciplinary body made under this Act or an order of a corresponding disciplinary body made under a corresponding law, including a failure to pay wholly or partly a fine imposed under this Act or a corresponding law;
  4. (g)
    conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
  1. [44]
    Chapter 4 of the Legal Profession Act has, as its purpose: the disciplining of the legal profession; promotion and enforcement of the professional standards, competence and honesty of the legal profession; providing a means of redress for complaints about lawyers; and protection of members of the public from unlawful operators: s 416.  Matters are investigated if a complaint is made to the Legal Services Commissioner, who is the person who deals with the complaint: s 429.  The Commissioner may refer a complaint to the Law Society or Bar Association (s 435), but must deal with it if the public interest requires it and a regulatory body should not do so: s 436.  It is the Commissioner who can apply to the Queensland Civil and Administrative Tribunal for a disciplinary order: s 452.  There are no rights for an individual to engage the process under the Legal Profession Act, other than by way of complaint to the Commissioner.
  2. [45]
    Self-evidently, in proceedings under the Legal Profession Act the relevant issues do not include establishing a duty of care, breach of that duty, causation and loss.
  3. [46]
    By contrast, in a proceeding for damages for negligence by ROG the applicable duty of care would need to be defined by reference to what ROG were actually retained to do, any breach would depend upon a departure from that duty, and loss would depend upon factual as well as legal causation.  Further, such a claim faces all the hurdles identified by the learned primary judge, not least being that it seems clear that Mr Wood rejected the advice he was given.
  4. [47]
    In our respectful view, the learned primary judge was right to dismiss the proceeding as framed, as it did not disclose a legitimate cause of action, let alone one that could be brought by Mr Wood.
  5. [48]
    Further, the refusal to allow Mr Wood an amendment to raise a claim in professional negligence was amply justified.  It was an entirely new cause of action and in so far as it was intended to claim loss for personal injuries, it was not maintainable because s 9 of the Personal Injuries Proceedings Act had not been complied with.  The economic loss component was claimed at $120,000, a claim well within the monetary jurisdiction of the Magistrates Court.  There was therefore an ample foundation to exercise the discretion to refuse the amendment.
  6. [49]
    Because his appeal challenges the learned primary judge’s exercise of discretion, it is necessary for Mr Wood to demonstrate error of the kind referred to in House v The King[67].  Mr Wood’s submissions were not put in that framework.  To the contrary, as explained below, Mr Wood asserted that the primary judge had a duty to permit his amendment.  Nothing in Mr Wood’s written or oral submissions suggested, much less demonstrated, any error in her Honour’s exercise of discretion.  That is fatal to Mr Wood’s appeal.

Misconceived contentions

  1. [50]
    Mr Wood’s grounds of appeal and his written and oral submissions before this Court advanced a number of misconceived contentions which he repeated many times.  We will deal with the main ones below.

The learned primary judge was obligated to allow the application to amend, by reason of r 375(1) UCPR.

  1. [51]
    The contention was framed as “Her Honour had no lawful option other than to allow the Plaintiff to amend”.[68]  The contention is misconceived.  Rule 375(1) provides:[69]
  1. “(1)
    At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.”
  1. [52]
    The word “may” gives the court a discretion as to whether to permit an amendment.  It is not mandatory on a court to do so.  Mr Wood applied orally for leave to amend to raise a new cause of action (professional negligence) and her Honour refused permission to do so for the reason set out in paragraph [39] above.

The learned primary judge found that the proceeding should be struck out because the incorrect originating process had been used.  Her Honour should have permitted it to continue by reason of r 373 UCPR.[70]

  1. [53]
    Rule 373 provides: “The court may not set aside a proceeding or an originating process on the ground the proceeding was started by the incorrect originating process.”  The learned primary judge did not give summary judgment because the incorrect originating process was used.  Her Honour found, correctly, that the pleaded cause of action for professional misconduct under the Legal Profession Act was not one that could be brought by Mr Wood.  In other words, the cause of action was impermissible.
  2. [54]
    An allied point made by Mr Wood was that r 373 applies so that it was not possible for the learned primary judge to “set aside the proceeding on the ground that it had been started by an incorrect cause of action”.[71]  The rule deals only with proceedings started by the incorrect originating process.  Here a claim was filed, and that was the correct originating process.  This rule is inapplicable.

Mr Wood’s oral application to amend could not be refused because of r 379 UCPR.

  1. [55]
    Mr Wood contended that “the only avenue for disallowing an amendment falls under r 379 of the UCPR”, and therefore the decision to refuse the application to amend was “unlawful”.[72]  Rule 379 applies where an amendment has been made but without leave.  That is not the case here.  The application to amend was dealt with under s 375.

Chen v Australian and New Zealand Banking Group Ltd[73]mandated that the amendment be permitted because Mr Wood could improve his position by amendment.

  1. [56]
    In Chen all that was said by Atkinson J was the unsurprising proposition that the jurisdiction to dismiss the plaintiff’s action “should only be exercised where the plaintiff cannot improve its position by a proper amendment of the pleading”.  There are two factors in that statement.  First, there must be an existing actionable cause of action.  If there is no actionable cause of action there is nothing to amend.  Secondly, the improvement of position by amendment referred to is by “a proper amendment”.  Where, as the primary judge (correctly) determined was the case here, it would be improper to permit an amendment, the proposition is inapplicable.

Both the learned primary judge and the respondent have admitted that Mr Wood’s proposed claim for professional negligence had prospects of success.

  1. [57]
    This bizarre contention arose out of various paragraphs of ROG’s submissions on appeal, and paragraphs of the reasons below, where reference is made to the prospect that Mr Wood retained an opportunity to plead a cause of action in negligence even though the current proceeding had ended.[74]  Neither passed any concluded view upon the chance of success of such a claim.  In fact, to the extent that such a case was referred to, it was in terms that there were difficulties which confronted it.  The suggestion that either ROG or the learned primary judge admitted such a claim had prospects of success is risible.

The statement of claim validly pleaded a case for economic loss caused by professional negligence.

  1. [58]
    Paragraphs 1- 4 of the statement of claim set out the retainer of ROG, in truncated form and at a level of generality.  Paragraphs 5-12 and 14 set out various allegations of failure to act properly.  The bulk of the allegations are of misconduct: “consistently and intentionally mislead the plaintiff”;[75] “attempted to fraudulently convince the plaintiff to plead guilty”;[76] failed to act in accordance with the Australian Solicitors Conduct Rules and s 419 and s 420 of the Legal Profession Act;[77] misconduct within the terms of the Legal Profession Act.[78]  The balance could be characterised as allegations of professional negligence: failure to respond to questions;[79] failure to gather evidence;[80] and failure to act in the client’s best interests.[81]
  2. [59]
    The sole pleading of loss is in paragraph 15:
  1. “15.
    As a result of the Defendant's professional misconduct, the plaintiff has suffered loss and injury. Consequently, the plaintiff is seeking the following damages:
  1. a)Pure financial loss (past and future),
  2. b)Pure mental damage,
  3. c)aggravated damages
  4. d)special damages.”
  1. [60]
    As is plain, the loss is claimed to be the result of “professional misconduct”, not professional negligence.  There is no pleading of facts to ground a claim for economic loss.  The statement of claim simply asserts that such loss is claimed.  And, there are no particulars of that loss.  The categories of the loss claimed, which follows the part of paragraph 15 set out above, do not fill the void.

The claim and statement of claim actually pleaded a cause of action in professional negligence of which resort to s 419 and s 420 of the Legal Profession Act were simply to give examples to demonstrate the breach of duty.

  1. [61]
    This submission was made in the written outline[82] and orally.  As the learned primary judge found, the pleading was of a cause of action for professional misconduct under the Legal Profession Act.  As can be seen from the synopsis set out in paragraphs [58] to [60] above, and more specifically in paragraphs [8] to [10] and [23] to [32] above, the pleaded case was one of professional misconduct.  The attempt to characterise it otherwise is risible.

Whilst it was said that Mr Wood had not complied with the Personal Injuries Proceedings Act, the precise breach was never identified.[83]

  1. [62]
    The breach was specifically identified in the written submission by ROG at first instance.[84]  There it was said:

“Mr Wood has not properly articulated the damages he seeks and the basis on which those damages are to be calculated. But it appears that the lion’s share of the damages claimed are for personal injuries. To that extent, the proceedings are incompetent because Mr Wood has not complied with section 9 of the Personal Injuries Proceedings Act (PIPA) and nor has he obtained leave pursuant to section 43 of PIPA.”

  1. [63]
    Mr Wood addressed s 9 in his oral submissions below.[85]

Mr Wood had complied with s 9 of the Personal Injuries Proceedings Act by sending a letter of demand to ROG.

  1. [64]
    The letter of demand did not meet the requirements of s 9.  Such a notice must be in the approved form: s 9(1).  The approved form requires a host of details to be provided including: (i) personal details of the plaintiff; (ii) details of the incident that gave rise to the injuries; (iii) the nature of the injuries and the medical treatment (if any) received; and (iv) details relevant to any claimed economic loss, including employment and lost income from the inability to work, and relevant documents.  And, if the claimant is in a position to make an offer the form must contain that offer, or state that the claimant is not in a position to make an offer.  The form must also contain certain notices to the recipient.  The letter of demand is nothing like the approved form.

It was insufficient to refer the learned primary judge to a section of a statute without providing a copy to the court; there was no evidence of the relevant provision and a decision made in such circumstances is unsafe.[86]

  1. [65]
    The proposition only has to be stated to be seen to be wrong.  The sections referred to (s 9 of the Personal Injuries Proceedings Act and s 52 of the Civil Liability Act) are well known.  Mr Wood addressed s 9 in his oral submissions below.[87]  In any event the decision was reserved for seven days.  Obviously, the learned primary judge had time to examine the provisions.  Equally obviously, it is not necessary to lead evidence of the terms of a statutory provision.

The learned primary judge wrongly referred to a letter of demand by Mr Wood when that letter “has nothing to do with the claim before her Honour”.[88]

  1. [66]
    The learned primary judge referred to this letter in the context of Mr Wood’s assertion that he had complied with s 9 of the Personal Injuries Proceedings Act.[89]  Her Honour identified that document as a letter dated 2 August 2021, at page 132 of the exhibits to Mr Kurz’s affidavit.  Mr Wood’s point seemed to be that her Honour referred to the wrong document.
  2. [67]
    Mr Wood referred to two letters according to date, one on 1 August 2021 and other on 2 August 2021, each as being the one that complied with s 9 of the Act.[90]  He did not demur when that was identified as being at page 132 of the exhibits.[91]
  3. [68]
    There are two letters of demand, each dated 2 August 2021.[92]  One deals with a demand for $12m in respect of the assault charge, and the other deals with a demand for $3m in respect of the wilful damage and obstruct police charge.  Apart from some minor variation because of the different charges, the letters are in identical terms in so far as they refer to injuries and loss.  Neither meets the requirements of s 9 of the Act.

Mr Wood’s supplementary submission

  1. [69]
    The respondent’s outline on the appeal originally proposed that orders could be made to facilitate the pursuit of a personal injuries claim based on negligence.[93]  They comprehended orders striking out the current statement of claim but permitting an amended claim and statement of claim to be filed.  However, on the hearing those submissions were withdrawn.  Counsel for ROG explained that they were withdrawn as they were contrary to the decision in Holmes v Adnought Sheet Metal Fabrications Pty Ltd.[94]  In essence that held that proceedings brought without having given the requisite notice under s 9 of the Personal Injuries Proceedings Act were void.
  2. [70]
    Because no notice had been given of the withdrawal of those submissions, nor had Mr Wood been given a copy of Holmes v Adnought, the Court gave Mr Wood the opportunity to respond on that point.
  3. [71]
    Mr Wood did so, making these points as to Holmes v Adnought:[95]
    1. (a)
      it was no longer good authority and had been overruled by this Court; no authority was cited for this proposition;
    2. (b)
      it was a claim for damages for personal injuries whereas the claim brought by Mr Wood was one for professional negligence; and
    3. (c)
      ROG should not be allowed to amend their outline, because Mr Wood opposed “any grant of leave to replead on the basis that any amendment allowing the dismissal of this claim based on personal injury grounds would be doomed to fail for the reasons outlined above”.
  4. [72]
    The supplementary outline was much longer than that, and much of it attempted to re-agitate points already made in the appeal hearing.  Further, as will appear below the supplementary outline transgressed in other ways.
  5. [73]
    Curiously, Mr Wood ended his supplementary submission by pointing out that ROG should not be allowed to amend because “it has no bearing on the matter to be decided by this court”.
  6. [74]
    Mr Wood’s points are misconceived.  Holmes v Adnought has since been approved by this Court on the critical point affecting the original submission by ROG.[96]  The case is authority for the proposition that proceedings brought in contravention of s 9 of the Personal Injuries Proceedings Act are void.  That was why ROG withdrew its submission.  No legitimate objection can be made to that, nor has one been made.

Baseless assertions

  1. [75]
    Both in his outline and oral submissions before this Court Mr Wood made a number of baseless assertions of fraud, unlawful conduct and corruption against ROG, individual members of that firm, police officers and judicial officers.  Despite admonishment from members of the Court to desist from making such baseless assertions, Mr Wood persisted.
  2. [76]
    We will mention some examples, not to give them credence because they are utterly lacking in that respect, but to demonstrate the lack of any basis for what Mr Wood alleges:
    1. (a)
      referring to the learned primary judge’s response to his oral application to amend, Mr Wood asserted that her Honour “dealt with that in a fraudulent manner”[97] and that the dismissal of the claim was “unlawful”;[98] in each case all that was referred to was that the ruling was “a violation” of r 373 and r 375 UCPR; it was not, for the reasons given above; even if it had been that would not make the conduct unlawful or fraudulent;
    2. (b)
      he said the fact that the learned primary judge’s reasons were not read out in open court was “unlawful”;[99] it was not;
    3. (c)
      referring to the learned primary judge’s recording of one of ROG’s submissions (in paragraph 18(a) of the reasons below), he said that it was her Honour’s “apparent finding” and it was a “blatantly unlawful statement”;[100] it was simply a submission from ROG that even if there had been a breach of duty no loss could be demonstrated; it was not a finding, and could not be unlawful;
    4. (d)
      referring once again to the refusal of the application to amend, Mr Wood said her Honour had “breached the other law which she’s relied on in her own reasons, and it is clear … that there seems to be corruption going on here”;[101] that is an utterly baseless assertion;
    5. (e)
      he said that it was “unlawful” for the learned primary judge to state that a letter of demand did not meet s 9 of the Personal Injuries Proceeding Act, without a ruling as to how he failed to comply with it;[102] whatever else that might be, it is not unlawful; and
    6. (f)
      he asserted that the learned primary judge relied upon “false evidence” advanced by ROG in affidavits before her Honour, and that constituted “grounds for an investigation to be launched into [her Honour] on the grounds of corruption”;[103] the basis of her Honour’s decision did not involve reliance upon ROG’s evidence, but was concerned with the fact that no proper cause of action was pleaded, and the foreshadowed cause of action was entirely new; to suggest that corruption was involved was scandalous; then, not deterred by the fact that no part of her Honour’s decision involved reliance upon false evidence, Mr Wood repeated the assertions, saying “again we have corruption. Her Honour has seen perjury. She has accepted perjury and then refused to acknowledge the perjury”.[104]
  3. [77]
    Notwithstanding the many admonishments by the Court to refrain from baseless assertions of fraud and corruption, Mr Wood persisted in his supplementary outline.  There he said a Crime and Corruption investigation was required because:
    1. (a)
      the impartiality of this Court was questionable;[105]
    2. (b)
      the learned primary judge made her decision “based on a fundamental misunderstanding of her responsibility”;[106] and
    3. (c)
      the learned primary judge relied upon s 9 of the Personal Injuries Proceedings Act, which “raises serious questions about her impartiality”.[107]
  4. [78]
    Even allowing for the possibility that Mr Wood’s use of the word “unlawful” simply meant impermissible, the same cannot be said of his assertions of fraud and corruption.  They are without foundation, and constitute a form of abuse of the Court, and the persons referred to.  Moreover, they constitute an abuse of the right a litigant possesses to advance a legitimate case and be heard.  In Mr Wood’s case, even though he was repeatedly told that such statements were unhelpful to his cause, and to desist, he did not.
  5. [79]
    The foregoing matters notwithstanding, the Court ensured that Mr Wood was given every chance to articulate any legitimate point.

Conclusion

  1. [80]
    In our view, the conclusion reached by the learned primary judge was justified and cannot be shown in any respect to be an exercise of discretion that has miscarried.
  2. [81]
    The following orders are made:
  1. 1.Appeal dismissed.
  2. 2.The appellant pay the respondent’s costs of and incidental to the appeal.

Footnotes

[1]  Appeal Book (AB) 8.

[2]  AB 10.

[3]  AB 10, paragraph 5.

[4]  AB 10, paragraph 6.

[5]  AB 11, paragraph 7.

[6]  AB 11, paragraph 9.

[7]  AB 11, paragraph 10.

[8]  AB 11, paragraph 11.

[9]  AB 11, paragraph 12.

[10]  AB 11 - 12, paragraph 14 and 15.  Emphasis added.

[11]  AB 12.

[12] Wood v Robertson O'Gorman Solicitors Pty Ltd [2022] QSC 24.

[13]  Reasons below [2].

[14]  Emphasis added.

[15]  Reasons [7].

[16]  A reference to the charges for assault occasioning bodily harm, wilful damage and obstruct police.

[17]  Paragraph 6, AB 42.

[18]  The following is taken from the exhibits to the affidavits of Mr Wood and Mr Kurz.

[19]  AB 82.

[20]  AB 84.

[21]  AB 176.

[22]  AB 88; AB 198; AB 202.

[23]  AB 90; AB 198; AB 202.

[24]  AB 201.

[25]  AB 201.

[26]  AB 92-94; AB 190-196; AB 206-207.

[27]  AB 206.

[28]  AB 205.

[29]  AB 100; AB 185.

[30]  AB 102-103; AB 177-178.

[31]  AB 105; AB 182.

[32]  AB 107, 109; AB 180.

[33]  AB 109; AB 180.

[34]  AB 109; AB 180.

[35]  AB 111.

[36]  AB 111.

[37]  AB 113; AB 188.

[38]  AB 96.

[39]  AB 210.

[40]  AB 168-171.

[41]  AB 115.

[42]  AB 117.

[43]  AB 119.

[44]  AB 121.

[45]  AB 125.

[46]  Outline below, paragraph 6(d), AB 42.

[47]  Reasons below [13].

[48]  AB 33.  Emphasis added.

[49]  AB 275, AB 278.

[50]  AB 275, taken from the letter in respect of the assault charge.  Emphasis added.

[51]  AB 41, paragraph 3.  Emphasis added.

[52]  AB 43, paragraph 11.  Emphasis added.

[53]  AB 44, paragraph 12.  Emphasis added.  See also AB 44, paragraph 13.

[54]  Transcript, AB 301 lines 31-37.

[55]  Transcript, AB 303 lines 9-15.

[56]  Transcript, AB 314 lines 5-10.

[57]  Reasons below [14].

[58]  Transcript, AB 307 lines 21-23; AB 314 line 47 to AB 315 line 45.

[59]  Transcript, AB 315 lines 28-43.

[60]  Transcript, AB 315 line 45 to AB 316 line 2.

[61]  Transcript, AB 324 line 14.

[62]  Transcript, AB 324 lines 17-46.

[63]  Transcript, AB 294 lines 15-21.

[64]  Reasons below [19].  Internal citations omitted.

[65]  Reasons below [21]-[22].

[66]  Reasons below [23].

[67]  (1936) 55 CLR 499, at 504-505.

[68]  Outline paragraph 3, Grounds A, C, E and L.

[69]  Emphasis added.

[70]  Outline paragraph 3, Grounds A, C, E and P.

[71]  Outline paragraph 3, Grounds A, C, E and L.

[72]  Outline paragraph 3, Grounds A, C, E and L.

[73]  [2001] QSC 43 at [1].

[74]  It was raised in oral address: Appeal transcript 1-16, line 39 to 1-17 line 4; 1-22 lines 17, 26-30; 1-27 lines 41-43; 1-29 line 18.

[75]  AB 10, paragraph 5.

[76]  AB 11, paragraph 10.

[77]  AB 11, paragraph 11.

[78]  AB 11, paragraph 14.

[79]  AB 10, paragraph 6.

[80]  AB 11, paragraph 7.

[81]  AB 11, paragraph 9.

[82]  Appellant’s Outline paragraph 3, Ground D.

[83]  Appellant’s Outline paragraph 3, Ground G and J.

[84]  AB 39, ROG’s outline, paragraph 11(b).

[85]  AB 300.

[86]  Appellant’s Outline paragraph 3, Grounds J, O.

[87]  AB 300.

[88]  Appellant’s Outline paragraph 3, Ground M.

[89]  Reasons below [21].

[90]  Letter 1 August 2021, Transcript AB 298 line 1; Letter 2 August 2021, Transcript AB 300 line 9.

[91]  AB 275.

[92]  AB 275 and AB 278.

[93]  Respondent’s outline, paragraphs 18 and 19.

[94]  [2003] QSC 321 at [15]-[26].

[95]  Supplementary outline paragraphs 2, 5 and 7.

[96] Haley v Roma Town Council [2005] QCA 3 at [6]; Roberts v Australia and New Zealand Banking Group Ltd [2005] QCA 470 at [32]-[35].  See also GU v TO [2005] QCA 480.

[97]  Appeal transcript 1-6, line 32.

[98]  Appeal transcript 1-7, lines 4, 15.

[99]  Appeal transcript 1-7, line 40.

[100]  Appeal transcript 1-9, lines 16-24.

[101]  Appeal transcript 1-15, lines 32-34.

[102]  Appeal transcript 1-36, lines 7-9.

[103]  Appeal transcript 1-37, lines 2-13.

[104]  Appeal transcript 1-40, lines 3-5.

[105]  Supplementary outline paragraph 1.

[106]  Supplementary outline paragraph 3.

[107]  Supplementary outline paragraph 6.

Close

Editorial Notes

  • Published Case Name:

    Wood v Robertson O'Gorman Solicitors Pty Ltd

  • Shortened Case Name:

    Wood v Robertson O'Gorman Solicitors Pty Ltd

  • MNC:

    [2022] QCA 201

  • Court:

    QCA

  • Judge(s):

    Morrison, Flanagan JJA, Beech AJA

  • Date:

    14 Oct 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 2404 Mar 2022-
Notice of Appeal FiledFile Number: CA3677/2229 Mar 2022-
Appeal Determined (QCA)[2022] QCA 20114 Oct 2022-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Chen v Australian & New Zealand Banking Group Ltd [2001] QSC 43
2 citations
Jump To
Cite 1 - [2001] QSC 43
Cite 2 - [2001] QSC 43
GU v TO [2005] QCA 480
1 citation
Jump To
Cite 1 - [2005] QCA 480
Haley v Roma Town Council[2005] 1 Qd R 478; [2005] QCA 3
3 citations
Jump To
Cite 1 - [2005] QCA 3
Cite 2 - [2005] QCA 3
Cite 3 - [2005] 1 Qd R 478
Holmes v Adnought Sheet Metal Fabrications Pty Ltd[2004] 1 Qd R 378; [2003] QSC 321
3 citations
Jump To
Cite 1 - [2003] QSC 321
Cite 2 - [2003] QSC 321
Cite 3 - [2004] 1 Qd R 378
House v R (1936) HCA 40
1 citation
Jump To
Cite 1 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Roberts v Australia and New Zealand Banking Group Ltd[2006] 1 Qd R 482; [2005] QCA 470
1 citation
Jump To
Cite 1 - [2005] QCA 470
Wood v Robertson O'Gorman Solicitors Pty Ltd [2022] QSC 24
2 citations
Jump To
Cite 1 - [2022] QSC 24
Cite 2 - [2022] QSC 24

Cases Citing

Case NameFull CitationFrequency
Registrar of the Supreme Court v Wood [No 3] [2024] QSC 1161 citation
Wood v Queensland [2024] QSC 321 citation
Wood v Registrar for the Supreme Court [2024] QCA 196 1 citation
1

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