Amos v Wiltshire[2010] QDC 138

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   The plaintiff’s claim against the defendant is for damages for breach of contract or negligence on the part of the defendant as the plaintiff’s barrister.

2. [2]
   The defendant who was admitted to practice as a barrister in Queensland in September 2000 was retained directly by the plaintiff in or about November and December 2007.

3. [3]
   There is no dispute the plaintiff and the defendant entered into an oral agreement pursuant to which the defendant agreed to draw, settle and engross a claim and statement of claim in which the plaintiff as plaintiff sued Monsour Pty Ltd, Fred Monsour and Desley Faye Monsour as defendants (“the Monsour proceedings”).

4. [4]
   The issue between the plaintiff and the defendant in these proceedings is whether the defendant was retained by the plaintiff to advise him on prospects of success of the Monsour proceedings and if in doing so, was the defendant negligent. The defendant denies he was retained to advise the plaintiff on prospects of success of the Monsour proceedings and denies he was negligent. He says he warned the plaintiff as to the risks associated with the Monsour proceedings.

5. [5]
   The Monsour proceedings were duly commenced in this court bearing number 2 of 2008. After the Monsour proceedings were commenced the defendants in those proceedings brought an application for summary judgment against the plaintiff on the ground he had no real prospects of succeeding on his claim and there was no need for a trial of the claim. Those summary judgment proceedings were heard by Brabazon DCJ who delivered his judgment on 20 June 2008 (see (2008) QDC 336). He dismissed the plaintiff’s claim in the Monsour proceedings and ordered the plaintiff to pay indemnity costs. An appeal by the plaintiff against the judgment of Brabazon DCJ to the Court of Appeal was not successful. The Court of Appeal ordered the plaintiff to pay the costs of the appeal on the standard basis.

BACKGROUND

6. [6]
   The plaintiff in unrelated proceedings was dissatisfied with the cost assessment performed by Mr Monsour.

7. [7]
   The plaintiff issued proceedings in the Magistrates Court against Mr Monsour in relation to the cost assessment.

8. [8]
   On 31 August 2004 the Magistrate dismissed the plaintiff’s claim against Mr Monsour and ordered he pay indemnity costs. These proceedings were heard “over a long day” (per Brabazon QC DCJ page 3).

9. [9]
   In another proceeding the Magistrate assessed the costs at $49,996.00. This took about “an hour” (per Brabazon QC DCJ page 3).

10. [10]
    The plaintiff appealed to this court against the cost assessment. That was heard by Nase DCJ. Nase DCJ reduced the costs to $45,506.00 but otherwise dismissed the appeal. Nase DCJ ordered the plaintiff to pay the costs of those proceedings on the standard basis.

11. [11]
    The plaintiff appealed against Nase DCJ decision to the Court of Appeal. That appeal was dismissed and the plaintiff was ordered to pay the standard costs of the appeal.

THE ALLEGATION

12. [12]
    The allegation in the Monsour proceedings was that Judge Nase’s decision was procured by fraud on behalf of Mr Monsour.

13. [13]
    As stated by Brabazon DJC at page 3:

“Mr Amos’ statement of claim says that Mr Monsour was responsible for the fraud at the hearing because of the written submissions of his counsel.  In fact the Magistrate assessed the costs after a hearing of about one hour.  However, in written submissions Mr Monsour’s counsel said they were assessed over a long day of some 7 ½ hours.  The pleading goes onto to say that that statement was deceitful and fraudulent.  It induced the Judge to give an erroneous judgment.   The complaint is also that the error is carried through into the Court of Appeal causing costs to be paid by Mr Amos.  He wants Judge Nase’s judgment set aside because of the fraud”.

And at page 5:

“It is very likely to have been no more than a mistake. There is just no evidence of dishonesty on the part of counsel, and there is no basis to say that he was dishonest… The allegation of fraud on the materials here is unsustainable.”

THE EVIDENCE

14. [14]
    The plaintiff gave evidence he knew the defendant since about eight or nine years ago. He met him when the defendant acted for the plaintiff’s insurer when the plaintiff had a motor vehicle accident. The plaintiff also had a personal injury claim and he had retained the defendant to act for him in that matter also.

15. [15]
    The plaintiff said after making arrangements he met the defendant in his chambers on the afternoon of 23 November 2007. He left with him a letter (the letter) and a brief of documents and the decision of Nase DCJ and various other documents.

16. [16]
    The letter is exhibit 1. In it the plaintiff refers to earlier discussions and asks the defendant “to advise if any grounds exist to overturn Nase’s judgment, and if so, then what are the prospects of success”.

17. [17]
    The plaintiff said this was a brief meeting with the defendant whereas when the defendant gave evidence he said the meeting took a couple of hours.

18. [18]
    Exhibit 1 in its body says:

“What may be of particular relevance is that paragraph 1.1.3 (page A182) of their first submissions says the trial of 27 July 2004 lasted a single day etc etc but paragraph 1.5.2 of their second submissions (page RO97) says it was the cost hearing of 27 July 2004 that lasted a single day etc etc.  In fact, the costs hearing lasted only about one hour”.

19. [19]
    The plaintiff said when the plaintiff and the defendant met the following week the defendant said he had been through the papers. The barrister for Monsour who had prepared written submission committed a fraud and that the plaintiff had good prospects of having Nase’s judgment set aside on that basis and he would go ahead and prepare material. As to who raised the question of fraud the plaintiff said the defendant did.

20. [20]
    The plaintiff said he went ahead with the pleadings because he believed that from the defendant’s advice he had good prospects of success of winning and it was an opportunity to recover costs.

21. [21]
    The plaintiff also said the defendant assured him that he had good prospects of success and that the barrister for Monsour had fraudulently mislead the court by making false submissions. That happened about two or three times.

22. [22]
    The plaintiff also said he was not told his claim was speculative nor that he was likely to lose nor that there was a chance he would lose. He was not told that he could be ordered to pay indemnity costs. He also said that it was not explained to him the nature of the allegation of fraud nor what was involved in pleading fraud and that an allegation of fraud is extremely serious and must be factually based. Nor was he told that allegations of fraud must be specifically pleaded and are extremely hard allegations to prove and that the allegation of fraud required newly discovered facts and that these newly discovered facts be material and these newly discovered facts must be such as to make it reasonably probable that the claim will succeed and such facts should go beyond mere allegations of perjury on the part of witnesses at the trial. The plaintiff also said that he was not told that the opposing party that took advantage of the judgment must be shown by admissible evidence to have been responsible for the fraud in such a way as to render it inequitable that such a party should take the benefit of the judgment (see Wentworth v Rogers No 5 (1986) 6 NSWLR 534 at 538-9).

23. [23]
    The plaintiff said that he would not have issued the proceedings if he was told there were no prospects of success and the likelihood of indemnity costs. If he had been told that there were low prospects of success he still would not have taken the chance.

24. [24]
    Regarding what was contained in the letter the defendant’s response when he gave evidence was to say that the plaintiff in his experience said one thing in writing and said another thing orally in counsel’s chambers (page 1-77/10). Earlier the defendant said the plaintiff did not retain him for advice (page 1-73/60-1-74/5).

25. [25]
    The plaintiff’s solicitor Mr Collinson also gave evidence.

26. [26]
    He said the plaintiff came to see him in about early December 2007 and said the defendant had told him he had good prospects of success. Further, he said he spoke to the defendant regarding the Monsour matter and the defendant said the plaintiff had good prospects of success.

27. [27]
    The defendant denied he ever told the plaintiff or Mr Collinson the plaintiff had good prospects of success. He described the allegation as a fabrication and in submissions said there was a very real possibility of a collaboration between Mr Collinson and the plaintiff because the relationship between Mr Collinson’s firm and the plaintiff being a multi-pronged one. There is no dispute the plaintiff does have a multi-pronged relationship with Mr Collinson’s firm.

28. [28]
    When the defendant gave evidence he said he met with the plaintiff in his chambers. He looked at the documents quickly and said he thought it was the sort of matter in which he probably need counsel’s advice formally obtained and to retain counsel for that. The plaintiff replied that he did not wish to do that and he wanted to institute the proceedings and he wanted junior counsel to draw and settle the claim and statement of claim to assist him to do that. The defendant still thought the plaintiff should obtain counsel’s advice and it should be written advice and he could provide it for a reasonable fee. However the plaintiff said he was not interested in that and in the circumstances he was confident that he had a good claim against Monsour amongst other things in fraudulent misrepresentation and could the defendant assist him with the matter. The defendant said he looked carefully through the documents he had been given and he thought it looked very, very difficult and problematical. He was not happy about it.

29. [29]
    Regarding the distinction between proceedings before the Magistrate taking one hour rather than one day, the defendant said:

“But it seemed to me that it was – it could be an innocent or inadvertent oversight or mistake or it could be a misrepresentation, it could be a reckless misrepresentation by Monsour’s lawyers.  There was an arguable case.  It was an arguable case at best.  It was never a good case, but it was an arguable case of fraudulent misrepresentation, prima facie on the instructions and documentation I had, but it could go no higher than that.  I never formed a view at any time, dealing with Mr Amos, that he had good prospects of success in a proceeding that he contemplated and wanted to institute against Monsour.  That thought never occurred to me and as soon as I started looking at his bundle of documents, I knew it was deeply problematical, but when I looked through it, I thought, well here is a situation were Mr Amos is not happy with his judgment, he says that there is a factual basis and an evidentiary basis in the material he has given me, to plead fraudulent misrepresentation, he has told me that, he has told me he wants to do that and I thought, well this is a situation where he deserves an opportunity, provided that I could do so with my ethical obligations as counsel, I thought he deserved an opportunity to obtain counsel’s expert assistance in the matter to draw and settle the court documents.  I have had dealings with Mr Amos in the past, and I know from past experience that he will use counsel very, very narrowly and in a focused manner as he has – and when he thinks he needs counsel.”

30. [30]
    The defendant also said:

“I said to him that fraud was a very difficult matter and a very serious matter to allege and to prove.  I said it required to be specifically pleaded and strictly proven and that there had to be a proper factual and evidentiary basis in material to support a pleading of that nature.  And so that was very important that he consider that in terms of what he wanted to do.  He said that that was no problem, he said that the material showed that there was multiple sets of submissions, I think two, in which solicitors and counsel had misrepresented the length of the costs hearing, that had poisoned his mind, it had influenced his discretion as to whether or not and to what extent to reduce your Honour’s costs orders, that the solicitors for Monsour were the same, both before her Honour and his Honour, and they knew that that was wrong and they recklessly did nothing about it and he said he could give evidence – he was there on both occasions and he could and would give evidence to support a claim for fraudulent misrepresentation against Monsour, on the basis of the observations that he had made and on the basis of things that had been said to him at the hearing before Judge Nase. I said, I was prepared to act for him to draw and settle a claim and statement of claim which he could use if he so wishes in a proceeding, but that was his responsibility to decide whether or not he actually wanted to initiate the proceedings.”

31. [31]
    The defendant said he wanted to look at the matter. He thought consistent with his ethical duties as counsel, the question he had to consider was whether or not he could draft and settle the claim and statement of claim. That was the only question he had to consider, as that was the only task the plaintiff ever retained him to perform.

32. [32]
    In the following week he got together with the plaintiff. At that stage he was absolutely certain beyond any doubt at all that the claim did not have good prospects of success. He thought the pleading could be prepared, he thought that was a bare but an arguable factual and evidentiary basis for it, the plaintiff deserved an opportunity to ventilate his claim if he so wishes and he should not refuse to draw and settle the claim and statement of claim only on the basis that I he warned the plaintiff about the responsibility he was assuming in doing it and the risks that he undertook. The defendant said he told the plaintiff:

“The proceeding he contemplated was deeply problematical and highly speculative and had very limited prospects of success as far as I could tell without actually being retained to perform a thorough investigation because he didn’t wish me to do that.  I said on the basis of the inquiries I made independently consistent with my ethical duties as counsel to decide whether I should perform this task, I thought that it probably had very limited prospects of success, it was arguable at best and if he failed in this proceeding, either interlocutory or at trial, I said there was every chance an adverse costs order would be made and that it could be made on the indemnity basis of assessment and he needed to think about that.  He said he understood and accepted that and he was prepared to take that risk and he wanted me to continue with the task of drawing and setting the documents, so I did that, and early in the following week, Monday, I think it was the 3rd, I was finalising that task and I rang him to say it was almost complete and we arranged for him to come to my chambers on Thursday 6 December.”

33. [33]
    The defendant says he again told the plaintiff that:

“It is problematical, it is difficult to allege and prove fraud, you need to consider seriously the consequences and the implications if you proceed, that given its limited prospects of success, it would be a difficult matter which I would not finally advise him on but that it was in his hands and to bear in mind that an adverse costs order would be made against him if the matter were dismissed.  And I could see in my mind at that point Monsour’s lawyers preparing the summary judgment application or possibility a strike out application.   I thought it was unlikely to be struck out.  I didn’t think it was an abuse of process but I thought in all probability you know, there will be an interlocutory process in terms of summary judgment.  And I told him that and I said ‘look, you know how far do you want to go with this?’”

34. [34]
    A little later the defendant said:

“So I’d formed the view that it was not an abuse of process.  It was speculative and difficult and problematical.   There was an arguable factual and evidentiary basis to allege fraud but that Mr Amos was going to do this entirely on his own responsibility.  I took no responsibility for his institution of the proceeding and I advised him as best I could and as I thought was necessary given the limited retainer I had in terms of warning him about it and the risks that he undertook.  I never said to him that I thought he had good prospects of success and I never said to Mr Collinson that I thought he had good prospects of success.”

35. [35]
    There is no dispute the defendant prepared the documents to commence the Monsour proceedings for a fee of $1,000.00 which was paid.

36. [36]
    It is also to be noted there was no written advice asked for by the plaintiff nor did the defendant reduce his reservations into writing. Nor did anyone have a diary note of these conversations.

FINDINGS

37. [37]
    I consider the plaintiff’s evidence if it stood on its own may be difficult to accept against the defendant’s evidence. However the plaintiff’s evidence is supported by Mr Collinson’s evidence. I can see no reason to reject Mr Collinson’s evidence. I do not accept his relationship with the plaintiff disqualifies him being accepted by me as an honest and truthful witness.

38. [38]
    I also consider the plaintiff’s evidence is supported by exhibit 1, which on its face asks for advice on prospects of success. This is a document that came into existence before the Monsour proceedings were commenced and before there is any thought about a possible action against the defendant.

39. [39]
    Further I consider if the defendant warned the plaintiff on three occasions in terms he says he did, the defendant would have reduced his advice into writing or at least made a note of it in writing for later reference.

40. [40]
    While I accept some litigants ignore advice and pursue litigation for frivolous or vexatious or oppressive purposes, the defendant has not pointed to any example to show a propensity on the part of the plaintiff to engage in the Monsour proceedings for those types of considerations.

41. [41]
    The plaintiff may be, as the defendant said, an intelligent and sophisticated man and litigant. Further, the plaintiff may use counsel on a very very narrow basis. Even so that does not mean the plaintiff would not seek advice on prospects of success and rely on that advice.

42. [42]
    On the other hand the only invoice for work done by the defendant is for the drawing and settling of the claim and statement of claim. That may suggest the plaintiff did not seek advice on prospects of success. However, it is possible the plaintiff sought advice on prospects of success and was given advice but the defendant did not render an account for that advice.

43. [43]
    Therefore, I prefer the evidence of the plaintiff and Mr Collinson to that of the defendant.

44. [44]
    I find the plaintiff and defendant agreed that the defendant would advise the plaintiff on his prospects of success in the Monsour proceedings. Further I find the defendant advised the plaintiff his prospects of success in the Monsour proceedings were good and the plaintiff relied on that advice to commence the Mounsour proceedings.

Breach of duty of care 

45. [45]
    A barrister’s duty of care is to “exercise reasonable care and skill in the provision of professional advice. The standard of care and the skill is that which may be reasonably expected of practitioners“ (Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 53 per Malcolm A-JA and also per McPherson A-JA at 117).

46. [46]
    In my opinion the defendant’s conduct fell short of what may reasonably be expected of practitioners.

47. [47]
    That is because the defendant did not properly understand the requirement of the plea of fraud as set out in the decision of Wentworth v Rogers No 5 (1986) 6 NSWLR 534.   If the defendant had appreciated those requirements, he should have understood as Brabazon DCJ found, there was no proper basis to make the allegations in the claim and statement of claim.  Further, the defendant did not warn the plaintiff of these requirements and the defendant did not warn the plaintiff of the possible adverse consequences of making the allegations. Finally, the defendant would not have advised the plaintiff the prospects of success were good.

48. [48]
    Rules 37 and 38 of the 2007 Barristers Rule provide:

“37. A barrister must, when exercising the forensic judgments called for throughout a case, take care to ensure that decisions by the barrister or on the barrister’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

1. (a)
   are reasonably justified by the material then available to the barrister;

2. (b)
   are appropriate for the robust advancement of the client’s case on its merits;

3. (c)
   are not made principally in order to harass or embarrass the person; and

4. (d)
   are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

38. A barrister must not draw or settle any court document alleging criminality, fraud or other serious misconduct unless the barrister believes on reasonable grounds that:

1. (a)
   factual material already available to the barrister provide a proper basis for the allegation if it is made in a pleading;

2. (b)
   the evidence in which the allegation is made, if it is made in evidence, will be admissible in the case, when it is led; and

3. (c)
   the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequence for the client if it not made out.”

49. [49]
    In my opinion the defendant breached both of those rules.

50. [50]
    Therefore I find the defendant guilty of negligence and find he breached the contract of retainer between the plaintiff and the defendant.

BARRISTER’S IMMUNITY

51. [51]
    A High Court majority said in D’Orta-Ekanaike v Victoria Legal Aid (2005) 223 CLR 1 page 14:

“An advocate can not be sued by his or her client for negligence in the conduct of a case, or in work out of court which is intimately connected with the conduct a case in court.”

52. [52]
    In the decision in Saif Ali v Sydney Mitchell & Co (1978) 3 All ER 1033, 1039-40, 1046, 1052 the House of Lords held that a failure by a barrister to advise that a second person should be added as a defendant was not within the immunity.  Saif Ali was cited with approval by the High Court both in D’Orta and in Gianerelli v Wraith (1988) 165 CLR 543.

53. [53]
    In the NSW Court of Appeal decision in Coshott v Barry (2009) NSWCA 34 Ipp JA (with whom Beazley and Campbell JJA agreed) said at [62]:

“Mr Coshott’s case was that Mr Barry breached his duty to advise virtually from the inception of the retainer.  Such an alleged failure would be too far removed from the actual conduct of the trial to be covered by the doctrine of advocate’s immunity.”

54. [54]
    Similarly, in the decision of Dansar Pty Ltd v Pagotto (2008) NSWSC 112 at [91] Harrison J said:

“Even though the defendants did not advise the plaintiffs to commence the proceedings in the first place, it was an implied term of their retainer to advise the plaintiffs if the first proceedings were hopeless.  Such advice is wholly anterior to, and separate from, work done leading to a decision affecting the conduct of the first proceedings.  “Conduct” in that sense is clearly a reference to how, or the manner in which, litigation should be conducted, not a reference to whether or not it should be commenced at all or continued.”

55. [55]
    In the Western Australian decision of May v Mijatovic (2002) WASC 151.  Hasluck J found that a duty of solicitors extended to an “obligation to alert the plaintiff to the possibility of adverse consequences” and to:

“Undertake a process of analysis of the claim sought to be brought and to advise the plaintiff of his opinion … and of the adverse consequences that could follow.”

56. [56]
    In my opinion the preparation of the claim and statement of claim by the defendant in this case was not something intimately connected with the conduct of the case in court.

57. [57]
    Therefore I find the immunity does not apply.

QUANTUM

58. [58]
    The plaintiff claims the defendant’s negligence or breach of contract caused legal and travelling expenses and embarrassment, humiliation, anguish as well as contempt.

59. [59]
    The defendant submits he did not cause the plaintiff’s losses because the plaintiff would have instituted the Monsour proceedings in any event, and irrespective of any advice that he received.

60. [60]
    Causation is a question of fact which “must be determined by applying common sense to the facts of each case (March v Stramare (E&M.H) Pty Ltd (1990-1) 171 CLR 506, 515)”.

61. [61]
    In the present matter I am satisfied the plaintiff legal and travelling costs in the sum of $114,302.17 have been established by the evidence and were caused by the defendant’s negligence or breach of contract.

62. [62]
    As far as general damages for embarrassment, humiliation, anguish and contempt are concerned no medical evidence was called by the plaintiff to support his claim in this regard.

63. [63]
    I accept he was very upset by the turn of events when Brabazon DCJ dismissed his claim in the Monsour proceedings and later when he was ordered to pay indemnity costs and lost his appeal in the Court of Appeal.

64. [64]
    On the contract claim damages for disappointment and distress are not recoverable (Baltic Shipping Co v Dillon (1992-3) 176 CLR 344).

65. [65]
    Further, I am not satisfied on the negligence claim the plaintiff suffered a recognisable illness or disorder, to be able to claim damages in this case.

66. [66]
    Therefore I give judgment for the plaintiff against the defendant for $114,302.17.

67. [67]
    I allow the plaintiff interest at 5% percent per annum on the sum of $114,302.17 from 2 June 2009 to date which is a sum of $4,629.23. I have chosen 5% p.a. as the interest rate because not all the expenses have been paid by the plaintiff to date.

68. [68]
    I will hear the parties on the question of costs.