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KMQ v QS Law Pty. Ltd.[2019] QDC 48

KMQ v QS Law Pty. Ltd.[2019] QDC 48

DISTRICT COURT OF QUEENSLAND

CITATION:

KMQ v QS Law Pty Ltd [2019] QDC 48

PARTIES:

KMQ

(plaintiff)

v

QS LAW PTY LTD ACN: 151 393 654

(defendant)

FILE NO/S:

D22/2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Ipswich District Court

DELIVERED ON:

12 April 2019

DELIVERED AT:

Ipswich

HEARING DATE:

12 April 2017

JUDGE:

Horneman-Wren SC DCJ

ORDER:

  1. The separate questions set out in paragraph 1 of the order of Koppenol DCJ of 26 August 2016 are answered as follows:
  1. (a)
    No.
  2. (b)
    No.
  3. (c)
    Unnecessary to answer.

CATCHWORDS:

PRISONER - PRISONER PROPERTY – STATUTE -INTERPRETATION OF STATUES - STATUTORY DUTY – whether Part 7 of the Public Trustee Act 1978 applies to a prisoner released on parole – where a prisoner released on parole is a prisoner to whom Part 7 of the Public Trustee Act 1978 may apply – whether Part 7 of the Public Trustee Act 1978 gives rise to a statutory duty on a prisoner to submit his estate to the Public Trustee – whether Part 7 of the Public Trustee Act 1978 gives rise to a duty on a solicitor acting for a prisoner to submit the prisoners estate to the Public Trustee – where no such duties arise – whether the definition of prisoner under the Corrective Services Act 2006 applies to the expression ‘prisoner’ in the Public Trustee Act 1978.

NEGLIGENCE – DUTY OF CARE – whether a solicitor owes a third party a duty to ensure that the third party is not exposed to the risk of loss or damage through the conduct of the solicitor for a client – where no such duty arises.

CASES:

Al-Kandori v JR Brown & Co [1988]

Badenach v Calvert [2016] 257 CLR 440;

Bakewell v The Queen (2008) 238 CLR 287;

Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649;

Council of the Shire of Southerland v Heyman [1985] 157 CLR 424;

Di-Carlo v Kashani-Malaki [2013] 2 Qd.R.17;

Farrington v Rowe McBride & Partners [1885] 1 NZLR 83;

Fitzpatrick v Jackson (1989)? 2 Qd.R. 542;

Hill v Van Erp (1997) 188 CLR 159;

Lee v Abedian & Ors [2016] QSC 92;

Myers v Elman [1940] AC 282;

Power v R [1974] 131 CLR 623;

Tyler v Krause 1 QD.R.453;

LEGISLATION:

Corrective Services Act 2006 – Schedule 4; ss 4,180,184,194,199,200,205,209, 214, 215

Offenders Probation and Parole Act 1959 – s 34;

Offenders Probation and Parole Act 1980 – s 63;

Parole Act 1971 (NT) – s 14;

Penalties and Sentences Act 1992 – Part 8; Part 9; ss 3,9,

Public Trustee Act 1978 – Part 7; Part 11; ss 28A-28H;

COUNSEL:

AM West for the plaintiff

AJH Morris QC for the defendant

SOLICITORS:

Walker Pender Group for the plaintiff

Quinn & Scattini Lawyers for the defendant

Background and application

  1. [1]
    The plaintiff, when a child, was sexually abused by ASC over an eight year period from 1998 to 2006. In June 2007 ASC was convicted of 14 sexual crimes committed against the plaintiff including maintaining an unlawful sexual relationship with a child. For that offence he was sentenced to nine years imprisonment. He was sentenced to lesser concurrent terms of imprisonment for the other offences. 77 days of pre-sentence custody was declared as time served under the sentences. A parole eligibility date was fixed at 25 September 2009. He was released from prison on parole in or about June 2010. He died in June 2014 when still on parole.
  1. [2]
    The plaintiff was awarded $10,000.00 by way of statutory compensation from the Queensland government for ASC’s criminal offending. That gave rise to a debt owed by ASC to the State.
  1. [3]
    When on parole, in June 2012, ASC commenced proceedings in the Federal Magistrates Court of Australia against YZX, claiming an adjustment of their matrimonial property. He did not have the consent of the public trustee to do so.
  1. [4]
    In July 2012 consent orders were made by the Federal Magistrates Court in those proceedings, the effect of which was that his interest in the former matrimonial home was to be assigned to YZX and she was to pay him $260,000.00. From that amount he was to discharge his debt to the State. ASC had not obtained consent of the public trustee to compromise the Federal Magistrate Court proceeding or to transfer his interest in the former matrimonial property.
  1. [5]
    In about October 2012, pursuant to those orders, YZX caused the sum of $253,734.58 to be paid to the defendant as his legal representative. Having received that sum on ASC’s behalf, the defendant paid $10,000.00 to discharge the debt to the Queensland government and distributed the balance to ASC and others at his direction. Nothing was paid to the plaintiff who in mid-August 2012 had commenced common law proceedings against ASC for damages for, amongst other things, trespass to the person constituted by the acts which also constituted the crimes of which he had been convicted. The defendant represented ASC in those proceedings from 25 August 2012 to 17 December 2012. ASC did not obtain the public trustee’s written consent to defend those proceedings.
  1. [6]
    On 5 December 2012 the plaintiff obtained judgment in those proceedings against ASC the damages in the sum of $498,565.00. She was also awarded costs.
  1. [7]
    The plaintiff asserts that Part 7 of the Public Trustee Act 1978 (PTA) applied to ASC from the time of his conviction until his death.  Part 7 relates to the administration of property of prisoners.
  1. [8]
    In this proceeding, the plaintiff contends that, in the premises of the facts and matters referred to, she was a person who was reasonably foreseeable by the defendant as being likely to be affected by its actions in representing ASC. She contends that the defendant owed her a duty to ensure that she was not exposed to the risk of loss or damage, through its conduct as ASC’s solicitor and that it breached that duty by: failing to be aware of the provisions of Part 7 of the PTA; failing to act and give effect to the provisions of Part 7 the operation of which, she alleges, required the defendant to pay $260,000.00 to the public trustee; by depriving the public trustee its statutory power to pay compensation out of ASC’s estate; and by placing ASC in the position to be able to dissipate his estate including the $260,000.00 free of the statutory control of the public trustee.  She claims that she has suffered loss and damage as a consequence.
  1. [9]
    The plaintiff claims further, or in the alternative, that: Part 7 of the PTA imposed an obligation on ASC and to the defendant to submit ASC’s estate to the control of the public trustee; that she is a person whose interests were protected by Part 7; that the loss and damage she has sustained has arisen from conduct which Part 7 prohibits or prevents, being the dissipation by ASC of his estate to her prejudice.  She claims that the defendant’s alleged conduct was in breach of Part 7 and a cause of her loss; and that the defendant is therefore liable for breach of the alleged statutory duty.
  1. [10]
    The court has ordered that the following questions be determined separately under r 483 of the UCPR:
  1. (a)
    Did the defendant owe to the plaintiff a duty as pleaded in paragraph 20.b. of the statement of claim, namely “a duty to ensure that [the plaintiff] was not exposed to the risk of loss or damage through [the defendant’s] conduct as the solicitor for … William Lawrence ASC”?;
  1. (b)
    Does Part 7 of the Public Trustee Act 1978 (Qld) create a statutory duty?;
  1. (c)
    If the answer to question (b) is yes:
  1. (i)
    Did the defendant owe that duty to the plaintiff?
  1. (ii)
    Does Part 7 of the Public Trustee Act 1978 confer on the plaintiff a private civil cause of action in respect of a breach of that duty?

Did part 7 of the Public Trustee Act 1978 apply to ASC?

  1. [11]
    Central to each of the questions to be determined separately is whether Part 7 of the Public Trustee Act applied to ASC at the relevant time.
  1. [12]
    Part 7 of the PTA comprises sections 90 to 97.  Those paragraphs provide as follows:

90 Application of this part

  This part shall apply to –

  1. (a)
    any prisoner who after conviction of any indictable offence or offences, is undergoing a sentence of imprisonment for life or for a term of 3 years or upwards or for such term as, together with any other sentence or sentences imposed upon the prisoner, has rendered the prisoner liable to imprisonment for a period of 3 years or upwards; or
  1. (b)
    a person subject to an indefinite sentence within the meaning of part 10 of the Penalties and Sentences Act 1992; or
  1. (c)
    a person directed to be detained pursuant to part 3 of the Criminal Law Amendment Act 1945;

and a reference in this part to a prisoner shall be a reference to any such persons.

91  Public trustee to manage property of certain prisoners

Except as otherwise provided in this part the public trustee shall, without further or other order or authority, be the manager of the estate of every prisoner to whom this part applies.

92 Public trustee may discontinue management after notice

  1. (1)
    Where the public trustee is of the opinion that it is not desirable that the public trustee should continue to manage the estate of a prisoner, the public trustee shall give to the chief executive (corrective services) notice in duplicate, in the form approved by the public trustee, of the public trustee’s intention to discontinue such management from a date to be stated in the notice, being not less than 8 weeks after the date of signing of the notice.
  1. (2)
    Within 7 days of the receipt of any such notice, the chief executive (corrective services) shall cause a copy of the notice to be delivered to –
  1. (a)
    the prisoner if the prisoner is not at liberty;
  1. (b)
    the prisoner if the prisoner is at liberty as a result of a parole order made pursuant to the provisions of the Corrective Services Act 2016 (a parole order);
  1. (c)
    the prisoner or such officer or other person as the chief executive (corrective services) considers reasonable if the prisoner is a person mentioned in section 90(b) who is released on a reintegration program under section 174 of the Penalties and Sentences Act 1992.
  1. (3)
    Such officer or other person shall take such steps as appear to the officer or other person to be reasonable to bring the contents and effect of any such notice received by the officer or other person pursuant to subsection (2)(c) to the attention of the prisoner without delay.
  1. (4)
    The chief executive (corrective services) or the prisoner or any other person appearing to the public trustee to have a proper interest may, within 6 weeks of the receipt of the notice by the chief executive (corrective services), make written representations to the public trustee that the notice should be revoked and where such representations are made by the prisoner (other than a prisoner who is at liberty as aforesaid) the chief executive (corrective services) shall transmit them forthwith to the public trustee.
  1. (5)
    If the public trustee, after considering such representations (if any) or any other matters, determines that the public trustee should continue to manage the estate of such prisoner, the public trustee shall, prior to the date stated in the notice of intention to discontinue, revoke such notice and give notice to the chief executive (corrective services) in duplicate, in the form approved by the public trustee, of such revocation.
  1. (6)
    The chief executive (corrective services) shall cause a copy of the notice of revocation to be delivered to the prisoner, or, for a prisoner mentioned in subsection (2)(c), to the prisoner or to such officer or other person as the chief executive (corrective services) considers reasonable.
  1. (7)
    Where a notice of revocation has been delivered to the chief executive (corrective services) pursuant to the provisions of subsection (5) or to an officer or other person pursuant to the provisions of subsection (6), the chief executive (corrective services) or, as the case may be, officer or other person shall take such steps as appear to him or her to be reasonable to bring the contents and effect of the notice of revocation to the attention of the prisoner.
  1. (8)
    The chief executive (corrective services) shall cause a copy of the notice of revocation to be delivered to the prisoner, or, for a prisoner mentioned in subsection (2)(c), to the prisoner or to such officer or other person as the chief executive (corrective services) considers reasonable.

93 Public trustee may resume management by notice

  1. (1)
    If, after the authority of the public trustee to manage the estate of a prisoner has ceased pursuant to section 92—
  1. (a)
    the chief executive (corrective services) certifies in writing to the public trustee that the prisoner is not at liberty by virtue of a parole order or a reintegration program mentioned in section 92(2)(c) and that it appears desirable that the public trustee should again become the manager of such estate; and
  1. (b)
    the public trustee determines that it is so desirable; the public trustee may give notice in duplicate, in the form approved by the public trustee, to the chief executive (corrective services) that the public trustee intends to resume such management, and thereupon, after a date to be stated in the notice (being not less than 6 weeks after the date of signing of the notice), the authority of the public trustee under this part to manage the estate of such prisoner shall recommence unless the said notice has been sooner revoked by the public trustee.
  1. (2)
    Within 7 days of receipt of such notice, the chief executive (corrective services) shall cause a copy of the notice to be delivered to the prisoner.
  1. (3)
    The prisoner may, within 4 weeks of such delivery, make written representations to the public trustee that the notice should be revoked, and the chief executive (corrective services) shall transmit such representations forthwith to the public trustee.
  1. (4)
    If the public trustee, after considering such representations (if any) or any other matters, determines that the public trustee should not again become the manager of such estate, the public trustee may, before the notice referred to in subsection (1) takes effect, revoke it and give notice of such revocation in duplicate, in the form approved by the public trustee, to the chief executive (corrective services) who shall cause a copy to be delivered to the prisoner.

94 Powers of public trustee

  1. (1)
    When the public trustee is manager of the estate of a prisoner under this part the public trustee shall have full power to deal with any property of the prisoner and to acquire any property for or on behalf of the prisoner and generally may do all such things in relation to property, on behalf of and in the name of the prisoner, as the prisoner could do if the prisoner were not a prisoner; and in particular—
  1. (a)
    the public trustee may in the name and on behalf of the prisoner execute all such assurances and take all such proceedings as the public trustee considers desirable and the same force and effect shall be given thereto as if executed or taken by the prisoner and no registering or recording of the public trustee’s authority so to do shall be necessary;
  1. (b)
    the public trustee may cause payment or satisfaction to be made of any debt or liability of the prisoner which is established in due course of law or otherwise to the public trustee’s satisfaction and may cause any property which comes into the public trustee’s hands to be delivered to any person claiming to be justly entitled thereto if the right of such person is established in due course of law or otherwise to the public trustee’s satisfaction;
  1. (c)
    the public trustee may cause such payment or other satisfaction to be made out of the property of the prisoner as the public trustee thinks fit by way of compensation for any loss or injury alleged to have been suffered by any person through any alleged criminal or fraudulent act of the prisoner;
  1. (d)
    the public trustee may, in such manner as the public trustee considers fit, apply any property of the prisoner for the maintenance or benefit of the prisoner or the prisoner’s spouse or any child (including an exnuptial child) of the prisoner or any person wholly or partially dependent upon the prisoner;
  1. (e)
    where a prisoner is registered as proprietor of or is entitled to an estate in any land—a registering authority shall, at the request of the public trustee, record on the register relating to such land a memorial of the fact that the public trustee is authorised to manage the estate of the prisoner;
  1. (f)
    the public trustee may, in the public trustee’s corporate name or in the name of the prisoner, institute any proceedings of a property nature or for the recovery of any debt or damage which the prisoner might have instituted but for the provisions of this part, and in like manner defend any proceedings instituted against the prisoner and, in either case, may enter into such compromise or arrangement as the public trustee thinks fit.
  1. (2)
    All action taken by the public trustee under this part shall be binding on the prisoner and the propriety thereof and the sufficiency of the grounds on which the public trustee may have acted shall not be in any manner called in question by the prisoner or any other person.
  1. (3)
    The public trustee shall not be liable for any injury, damage or loss sustained by any other person in relation to any action taken or omitted by the public trustee as manager of the estate of a prisoner under this part, but that estate shall be liable therefor.
  1. (4)
    The various powers conferred on the public trustee by this section may be exercised by the public trustee in such order and course as to priority of payments or otherwise as the public trustee thinks fit.
  1. (5)
    The reference in subsection (1)(d) to the prisoner’s spouse includes a reference to—
  1. (a)
    if the prisoner was already imprisoned when this subsection commenced—a person who would have been, immediately before the prisoner was imprisoned, the prisoner’s de facto partner had the Acts Interpretation Act 1954, section 32DA been in force; or
  1. (b)
    otherwise – a person who was, immediately before the prisoner was imprisoned, the prisoner’s de facto partner.

95 Restrictions on property dealings or proceedings

  1. (1)
    During the time when the public trustee is manager of the prisoner’s estate under this part, a prisoner shall be incapable, except with the consent in writing of the public trustee—
  1. (a)
    of alienating or charging any property or of making any contract; and
  1. (b)
    of bringing or defending any action of a property nature or for the recovery of any debt or damage.
  1. (2)
    If the court becomes aware that an action has been brought or defended in contravention of subsection (1)(b), the prisoner can take no further steps in the action without the written consent of the public trustee, in the approved form, filed in the court.
  1. (3)
    The consent of the public trustee is then taken to have been given when the action was brought or defended.

97 Cessation of public trustee’s authority

  1. (1)
    The authority of the public trustee to manage the estate of a prisoner under this part shall cease when that prisoner—
  1. (a)
    has received from Her Majesty, or the Governor on behalf of Her Majesty, a pardon for the offence of which the prisoner was convicted; or
  1. (b)
    has undergone the full term or terms of imprisonment to which the prisoner has been sentenced or such other punishment as by competent authority has been substituted for such term or any of such terms; or
  1. (c)
    for a prisoner mentioned in section 90(b)—has been released to a reintegration program under section 174 of the Penalties and Sentences Act 1992 and the program has ended or been discharged; or
  1. (d)
    dies; or
  1. (e)
    as a result of an appeal or otherwise, lawfully ceases to be a prisoner.
  1. (2)
    If, immediately prior to the ceasing of the authority of the public trustee as provided by subsection (1), there is anything within the powers of the public trustee in relation to the estate which, having been commenced by the public trustee, is not completed, then, subject to any order of the court to the contrary, that thing, if the public trustee thinks fit, may be completed by the public trustee as if the public trustee’s authority still continued, and for this purpose the provisions of this part with all necessary adaptations shall apply and extend accordingly.
  1. [13]
    The essential issue which must be resolved is whether Part 7 of the PTA continued to apply to ASC after his release on parole.
  1. [14]
    The submissions for the plaintiff commence by asserting that there is no definition of “prisoner” in the PTA.
  1. [15]
    The plaintiff submits that Part 7 of the PTA must apply to prisoners in Queensland and that can only be those persons designated as such under the Corrective Services Act 2006 (CSA).[1]  The plaintiff then turns to the dictionary contained in Schedule 4 to the CSA.[2]  There “prisoner” is defined to mean:

“A person who is in the chief executive’s custody, including a person who is released on parole.”

  1. [16]
    Accepting that this definition is for the purposes of the CSA, the plaintiff nonetheless submits that “the concept which it embodies supplements the substantive provision in s 214 of the CSA that “a prisoner who is released on parole is taken to still be serving a sentence imposed on the prisoner”.”
  1. [17]
    The plaintiff submits that it therefore follows that ASC was a prisoner within the meaning of Part 7 of the PTA until the date of his death, he having died prior to the date of what would have been his full time release date.
  1. [18]
    The defendant submits that there are four fundamental flaws in the plaintiff’s process of reasoning that, in the absence of its own definition of “prisoner”, the definition provided in the CSA should be adopted and applied to the PTA.
  1. [19]
    First, the defendant refers to the express provision in s 4 of the CSA that the Schedule 4 dictionary merely “defines particular words used in this Act”, and does not purport to define those words for all, or any other, purposes.  The defendant illustrates this submission by reference to other words defined for the purposes of the CSA within the dictionary such as “compassionate leave”, “educational leave” and “health leave” which could not be applied in another statutory context, such as under the Industrial Relations Act 1999.
  1. [20]
    It submits that it is generally inappropriate to have regard to a definition in one enactment for the purposes of construing a different enactment. It contends that the PTA and the CSA could not be considered to be in pari materia
  1. [21]
    The second fundamental flaw in the plaintiff’s reliance upon the definition of “prisoner” in the CSA in construing Part 7 of the PTA is said to be that the PTA was enacted in 1987 and the CSA in 2006.  The defendant submits that if the ordinary meaning of the term “prisoner” applied for the first 19 years following the enactment of the PTA it cannot rationally be suggested that the enactment of the CSA was intended, effectively, to amend the PTA.[3]
  1. [22]
    The third flaw identified by the defendant is that the definition of “prisoner” in Schedule 4, as sought to be relied upon by the plaintiff, is not unqualified. It expressly provides that it does not include a person released on parole for a number of provisions of the CSA itself.  The defendant asks, rhetorically, which of the CSA definitions is to be applied?
  1. [23]
    The defendant goes further to submit that the structure of the CSA and its defining of “prisoner” to include persons released on parole for some purposes, but not for others, gives a clue as to what might have been intended for Part 7 of the PTA.  It suggests that what is critical is that the provisions which might affect prisoners’ property rights and income earning ability only apply to actually incarcerated persons.[4]
  1. [24]
    It submits to the extent that it might be appropriate to consider the definition of “prisoner” in the CSA, it would be that which applies to prisoners’ property rights which excludes those prisoners on parole.
  1. [25]
    The fourth flaw identified, which the defendant submits is the most fundamental, is the fact that the definition of “prisoner” is contained in the PSA, by extending its meaning to those persons released on parole, itself demonstrates that the drafter of the provision did not consider that such a person fell within the ordinary meaning of the word.  It identifies the definition as being in the nature of a “humpty dumpty” provision: it means what the Act says it means.
  1. [26]
    The defendant submits that it is unnecessary to have regard to the CSA definition of “prisoner” because Part 7 of the PTA contains its own definition within s 90, and that the plaintiff’s submission that there is no definition in the CSA is, therefore, incorrect.  The defendant emphasises that it is not sufficient for the person be a “prisoner”; they must also be one undergoing a sentence of the specified duration.
  1. [27]
    It submits that “on any view, a person cannot be said to be “undergoing a sentence of imprisonment” if the person is living in the general community, whether as a consequence of being released on parole or otherwise.”[5]
  1. [28]
    In my view, the defendant is correct to identify s 90 as being of critical importance in construing the application of Part 7 of the PTA.  However, for reasons which I shall set out later, I do not accept the submission that on no view can a person living in the community, having been released on parole, be said to be undergoing a sentence of imprisonment.  In my judgment, that view is open as a matter of general understanding of systems of sentencing, imprisonment and parole in Australia, and upon a consideration of other provisions of Part 7.
  1. [29]
    The defendant says that the ordinary meaning of the words in s 90, particularly “prisoner”, “undergoing” and “imprisonment” are self-evident. The meaning of each of those words, it is submitted, by reference to various dictionary meanings, are as follows:
  1. (a)
    “Prisoner” – “one who is confined in prison or kept in custody, esp.  As the result of legal process”, “a person legally committed to prison as a punishment for a crime or awaiting trial”; “a person deprived of liberty and kept in prison or some other form of custody as a punishment for a crime, while awaiting trial, or for some other reason”;
  1. (b)
    “Undergo” – “to be subjected to; experience; pass through”; “experience or be subject to (something, typically something unpleasant or arduous)”; “to experience, endure or sustain”;
  1. (c)
    “Imprison” – “to put into or confine in a prison; detain in custody”; “put or keep in prison or a place like a prison”; “confine in or as if in prison”
  1. [30]
    In my view, care must be taken so as not simply to construe individual words rather than the legislative text in its context. Most notably, s 90(a) does not refer to “a prisoner undergoing imprisonment”; it refers to “a prisoner undergoing a sentence of imprisonment”. They are not the same.
  1. [31]
    As the defendant’s submissions identify, in order for a person to fall within s 90(a), the person must first be a prisoner. Under Queensland law, the general powers of courts to sentence offenders are collected in a single Act, the Penalties and Sentences Act 1992 (PSA).  That is one of the purposes of that Act.[6]
  1. [32]
    A “sentence” is defined by section 4 of the PSA to mean a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted. A “sentence of imprisonment” is a sentence of a court which makes an order of imprisonment. A “term of imprisonment” is defined by section 4 of the PSA, relevantly, to mean “the duration of imprisonment imposed for a single offence”. 
  1. [33]
    From sub-sections 9(2) and (4) it is apparent that a sentence of imprisonment may be one which does not require the offender to serve an actual term of imprisonment. Section 9(4)(b) prescribes that, unless there are exceptional circumstances, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years, the principles that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable, do not apply and “the offender must serve an actual term of imprisonment”. (emphasis added).
  1. [34]
    Part 9 of the PSA deals with imprisonment.
  1. [35]
    Section 152A(1) provides that if a court orders an offender to serve all or part of a term of imprisonment, the proper officer of the court must make a record of the order committing the offender into custody. That provision demonstrates that a court may make an order of imprisonment against an offender, thereby imposing a sentence of imprisonment, but that the offender may not be ordered to serve all or part of that sentence in custody.
  1. [36]
    Section 154(1)(a) provides (with exceptions not presently relevant) that on conviction on indictment, a term of imprisonment starts on the day the court imposes imprisonment on the offender.
  1. [37]
    Section 158A provides that when an offender appeals against sentence and is granted bail awaiting the determination of the appeal, the offender’s term of imprisonment does not run during the time the offender is on bail.
  1. [38]
    Section 159A(1) provides that if an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence, and for no other reason, must be taken to be imprisonment already served under the sentence, unless the sentencing court orders otherwise. Section 159A(2)(c) provides that section 159A(1) does not apply to imprisonment that is wholly suspended. Section 159A(2)(d) provides that it does not apply to the suspended part of imprisonment partly suspended.
  1. [39]
    Part 8 of the PSA deals with suspended imprisonment.
  1. [40]
    Section 144(1) provides that “if a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.” The order may suspend the whole or part of the term of imprisonment: s 144(3). Section 144(4) prohibits a court from suspending a term of imprisonment if satisfied that it would be appropriate that the offender be imprisoned for the term of imprisonment imposed. Section 144(5) requires the court to state the operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with for the suspended sentence.
  1. [41]
    By s 145 the effect of an order suspending a term of imprisonment is that the offender has to serve the suspended imprisonment only if ordered to do so under s 147. Section 147 prescribes the powers of a court dealing with an offender for a suspended sentence, the offender having committed another offence for which imprisonment may be imposed during the operational period of the sentence. Those powers include that the court may order that the offender serve the whole or part of the suspended imprisonment.
  1. [42]
    Part 9 of the PSA, in dealing with imprisonment, contains Division 3 which provides for parole.  Section 160A(1), ss 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.  The imposing of a term of imprisonment on an offender for an offence includes making an order the offender serve the whole or part of suspended imprisonment for the offence: s 160.  Sections 160B to 160D then prescribe circumstances in which a court: must fix the date upon which an offender is to be released on parole; must fix the date upon which the offender is eligible for parole; or may fix the date upon which the offender is eligible for parole.  Those provisions are the only law under which a court may, on sentence, make an order relating to a person’s release on parole: s 160A(2). 
  1. [43]
    If a court must fix a parole release date for an offender, the court may fix any day of the offender’s sentence as the offender’s parole release date, including the date on which the offender is sentenced, in which case the offender is taken immediately to be subject to a court ordered parole order. A court’s power to fix parole release date for an offender is restricted to circumstances in which the sentence of imprisonment imposed is one of three years or less.
  1. [44]
    Chapter 5 of the CSA deals with parole.  A number of provisions[7] prescribe the parole eligibility date for various prisoners.  Section 184 prescribes the parole eligibility date for other offenders including those for whom a parole eligibility date is fixed by the sentencing court: their parole eligibility date is that which the court fixed: s 184(3)(a). For others, their parole eligibility date is the day after the day on which the prisoner has served half the period of imprisonment to which the prisoner has been sentenced: section 184(2).
  1. [45]
    A prisoner (with certain exceptions not presently relevant) may apply for a parole order having reached the parole eligibility date for their period of imprisonment: s 180(1). A prisoner entitled to apply for parole is an eligible prisoner: s 194(5). The parole board may, by a parole order, release an eligible prisoner: s 194(1)(b).
  1. [46]
    For a prisoner with a parole release date fixed by a sentencing court, the chief executive must issue a court ordered parole order in accordance with the date fixed: s 199(1).
  1. [47]
    Each of ss 194(4) and 199(4) provide that “the prisoner” must keep a copy of the parole order in “the prisoner’s” possession while released on parole and must produce a copy of it for inspection if asked by a police officer or a corrective services officer. A mandatory condition of all parole orders is that “the prisoner” is required to be under the chief executive’s supervision until the end of “the prisoner’s” period of imprisonment: s 200(1)(a)(i). The period of imprisonment being the unbroken duration of imprisonment that an offender is to serve under two or more terms of imprisonment, concurrently or cumulatively, and whether imposed at the same or different times, and includes a term of imprisonment, a term of imprisonment being the duration of imprisonment imposed for a single offence.[8]
  1. [48]
    Sections 205 and 209 prescribe circumstances in which a prisoner’s parole order may be, or is, cancelled. Section 205 speaks of “the prisoner subject to the parole order”. As the plaintiff’s submissions observe, s 214 prescribes that “a prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.”
  1. [49]
    Section 215 prescribes that “a prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under s 205 or 209.”
  1. [50]
    From the above analysis of the PSA and the CSA it can be seen that, under Queensland law, a prisoner is a person upon whom a sentence of a term of imprisonment has been imposed by an imprisonment order of a court.  This includes an order requiring a person to serve the whole or part of a previously imposed suspended term of imprisonment.  The term of imprisonment starts on the day the court imposes imprisonment.  During the prisoner’s term of imprisonment the prisoner must be issued with a court ordered parole order if the sentencing court fixed the date for the prisoner’s release on parole, or the prisoner may be released under a parole order issued by the parole board after the prisoner becomes eligible for parole.  If released on parole, the prisoner: is still taken to be serving the sentence imposed even when released on parole; remains under the supervision of the chief executive until the end of the prisoner’s period of imprisonment as a prisoner subject to a parole order; and will only be taken to have served their period of imprisonment if their parole order expires without cancellation.
  1. [51]
    Upon that analysis, contrary to the defendant’s submission, the view that a person living in the general community as a consequence of being released on parole can be said to be undergoing a sentence of imprisonment, is entirely open.
  1. [52]
    It is also a view which accords with parole as commonly provided for under Australian law.
  1. [53]
    In Power v R,[9] the High Court said this of sentences of imprisonment and release on parole:

“It is true that, in following the legislation of other states and enacting the Parole of Prisoners Act 1966, the New South Wales legislature took a large step towards ensuring that a prisoner can, by his own behaviour while a prisoner, secure his release from confinement upon parole without serving the full term to which he has been sentenced, but the encouragement to reform so provided does not and obviously is not intended to take the sting out of imprisonment.  To our minds no assistance towards the construction of the Act is to be had by considering the various objects of criminal punishment and by treating the non-parole period as retributive and the remainder of the time served in confinement as a period of rehabilitation.  Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and, throughout, it is punishment, but punishment directed towards reformation.  The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.

We think nothing is to be gained by regarding the power of the paroling authority to release from prison as converting the full sentence into an indeterminate sentence.  To interfere with that sentence is not within the authority of the paroling authority.  Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him.  The sentence stands and during its term the prisoner is simply released upon conditional parole.  Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence.  In truth there is but one sentence, that imposed by the trial Judge which cannot be altered by the paroling authority.

To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a Judge determines requires that he must serve having regard to all the circumstances of his offence.” (emphasis added).

  1. [54]
    Express provisions of successive Queensland statutes dealing with the release of prisoners on parole, of which the CSA is the latest and current, have reflected the intention that punishment of the prisoner being mitigated in favour of rehabilitation through conditional freedom on parole, but that the prisoner remains a prisoner until the expiration of the sentence of imprisonment imposed by the court.
  1. [55]
    The status of a prisoner released on parole remaining a ‘prisoner’ is thus established by operation of the laws of Queensland which confer and govern that status. It is not established by the definition of ‘prisoner’ in the Schedule to the CSA.
  1. [56]
    The defendant’s submission sought to gain support from what was said to be judicial authority for the ordinary meaning of the word “prisoner” such that it would not extend to a prisoner released on parole. The support was said to be derived from the joint judgment of the High Court in Bakewell v The Queen,[10] where, at para [37], their Honours said:

“The term ‘prisoner’ in Division 1 of Part 5 should be given its natural meaning.  The application made by the Director in respect of the appellant did not relate to a ‘prisoner’.” (emphasis added).

  1. [57]
    No such support can be derived. The passage at para [37] must be read in light of what was said at para [35] that:

“He was no longer a ‘prisoner’ within the meaning of Division 1 of Part 5 of the 2003 Reform Act.  The term ‘prisoner’ when used in those provisions should be understood as meaning a prisoner serving a sentence under and in accordance with Northern Territory law.” (emphasis added).

  1. [58]
    As the law of the Northern Territory stood at the relevant time, a person released on parole would have been “a prisoner serving a sentence under and in accordance with Northern Territory law”. This was the effect of s 14 of the Parole Act 1971 (NT) which is analogous to s 214 and s 215 of the CSA.
  1. [59]
    The reason why the term “prisoner” under the relevant Act did not extend to Bakewell was not because he had been released on parole, but because he had been the subject of an interstate prisoner transfer to South Australia.  By operation of the transfer legislation in both the Northern Territory and South Australia, from the time he arrived in South Australia the sentence imposed upon him in the Northern Territory ceased to have effect and he was deemed to have had a sentence imposed upon him by the South Australian Supreme Court.  It was thus that he was no longer a prisoner serving a sentence under and in accordance with Northern Territory law.
  1. [60]
    Understood in this way, what was said as applying the natural meaning to the term ‘prisoner’, being a prisoner serving a sentence under and in accordance with the law of the relevant jurisdiction, supports the process of analysis of whether ASC was a prisoner serving a sentence under and in accordance with Queensland law set out earlier in these reasons.
  1. [61]
    That a person released into the community on parole can be viewed to be undergoing a sentence of imprisonment is also consistent with the statutory language used elsewhere in Part 7 of the PTA.  Section 97(1)(b) provides that one of the circumstances in which the authority of the Public Trustee to manage the estate of a prisoner will cease, is when the prisoner has undergone the full term or terms of imprisonment to which the prisoner has been sentenced.  A prisoner will thus be undergoing the sentence of imprisonment until the expiration of its full term.  That will be so whether in custody or on parole.
  1. [62]
    It is also, in my view, consistent with the ordinary meaning of “undergoing” as referred to in the defendant’s submissions that a prisoner released on parole is still “passing through” and “subject to” the sentence.
  1. [63]
    All of this analysis goes only to demonstrate that ASC, even when on parole, could satisfy the description of a prisoner undergoing a sentence of imprisonment for a term of three years or upwards as referred to in s 90(a) of the PTA.  However, to focus upon the time at which ASC became a prisoner upon parole, to see whether or not he satisfied that description at that time, is to fail to understand how, properly construed, Part 7 of the PTA operates and the role played by s 90(a) in that legislative scheme.
  1. [64]
    Put simply, Part 7 of the PTA operates to confer upon the Public Trustee authority to manage the estate of certain prisoners and to restrict the prisoner’s own capacity to do certain specified things whilst his or her estate is subject to the Public Trustee’s management.
  1. [65]
    By operation of s 91 the Public Trustee becomes the manager of the estate of every prisoner to whom Part 7 applies. The application of Part 7 must, therefore, be determined at the time at which s 91 would operate. Relevantly, so far as persons referred to in s 90(a) are concerned, that would be at the time at which they are sentenced. That is because s 91 operates simply as a matter of law “without further or other order or authority”. That is, it operates as a matter of law as soon as the circumstances exist that will bring the person within the description of s 90(a).
  1. [66]
    As the above analysis of the PSA demonstrates, upon a court, by sentencing order, imposing a term of imprisonment of three years or upwards, or which with any other sentence imposed renders the prisoner liable to imprisonment for three years or upwards, that person, upon the order being made, will be a prisoner undergoing a sentence of imprisonment for the duration ordered.
  1. [67]
    At the moment upon which the sentence order was made for ASC, he satisfied the description of persons in s 90(a) and became a person to whom Part 7 applied. It was at that moment that the Public Trustee became, by operation of s 91, the manager of his estate. From that moment the Public Trustee remained, by operation of law, the manager of his estate until the authority to manage the estate ceased.
  1. [68]
    To determine whether the Public Trustee’s authority to manage the estate ceased, one does not refer back to s 90(a) to establish whether the prisoner continues to satisfy the description of persons contained therein from time to time. The prisoner will continue to satisfy that description until such time as he or she has undergone the full term of his or her imprisonment.
  1. [69]
    To determine whether the Public Trustee’s authority has ceased, one turns to s 97(1) to consider whether any of the events prescribed therein have occurred or whether any of the circumstances prescribed therein have been satisfied. Of note, those events or circumstances do not include either the issuing of a parole order or the prisoner’s release on parole.
  1. [70]
    The only other circumstance in which the Public Trustee’s authority to manage the prisoner’s estate ceases is when the Public Trustee has gone through the process of discontinuance of management of the estate as prescribed by s 92. In that event, the authority ceases on the date mentioned in the notice of intention to discontinue management of the estate.
  1. [71]
    A person’s release on parole may well cause the Public Trustee to form the opinion that it is not desirable that the Public Trustee should continue to manage the estate, thus putting in train the process of discontinuance. However, it does not, of itself, cause the authority to cease.
  1. [72]
    When understood in this way, it is apparent that the only event which occurred which caused the authority of the Public Trustee to manage the estate of ASC to cease was his death which occurred before he had undergone the full term of imprisonment. Until his death, he remained a person to whom Part 7 of the PTA applied. 

Did the defendant owe the plaintiff a duty to ensure that she was not exposed to the risk of loss or damage through the defendant’s conduct as the solicitor for ASC?

  1. [73]
    The plaintiff’s contention for the existence of the duty which she asserts is placed on two alternative bases. First, she contends that the duty exists by analogy with the duty enunciated by the High Court of Australia in Hill v Van Erp.[11]  Alternatively, she contends that the existence of the duty can be demonstrated by reference to the factors set out in Caltex Refineries (Qld) Pty Ltd v Stavar.[12]  In my respectful opinion, neither basis can be sustained.
  1. [74]
    In contending that there arises in this case a duty analogous with that found in Hill, the plaintiff acknowledges, with particular reference to what was said by the High Court in the subsequent case of Badenach v Calvert,[13] “the narrow focus of the rule in Hill and the difficulties of bringing a case within it”.[14]  Nonetheless, the plaintiff submits that there was a coincidence of interests as between the plaintiff and ASC.  She submits:

“There was such a coincidence because the lawful interest of ASC was that the Public Trustee be enabled to exercise its powers under Part 7 PTA 78.  The lawful interests of the plaintiff was also that the Public Trustee be enabled to exercise those powers.  The unlawful actions of the defendant effectively prevented that from occurring with the result that various transactions by ASC must have been nullities and also that the plaintiff has been deprived of the opportunity of seeking compensation under s 94(1)(a) PTA 78.  It should be held, therefore, that the duty of care which the plaintiff alleges against the defendant exists by analogy with the duty enunciated in Hill.”

  1. [75]
    The plaintiff acknowledges that the first of the preliminary questions “appears to suggest a widely cast duty”. However, she submits that it is important to read paragraph 20 of the Statement of Claim as a whole from which it can be seen that the breach alleged:

“Is essentially that the defendant acted without authority as a consequence of its failure to comply with the requirements of Part 7 PTA 78.  Putting it another way, the plaintiff alleges that the defendant owed a duty to carry out its representation of ASC in accordance with the law.”[15]

  1. [76]
    As the defendant’s written submissions observe, those alternative formulations are markedly different to the pleaded duty.
  1. [77]
    The width of the duty cast is not, as the plaintiff submits, something which is apparently suggested by the first preliminary question. The width of the duty in the question merely reflects the width of the duty actually pleaded in para 20(b) of the statement of claim. The breadth and content of that duty alleged in para 20(b) is not defined by, or confined to, the breaches alleged in para 20(c). The duty alleged is cast in very wide terms. It is that the defendant owed her a duty to ensure that she was not exposed to the risk of loss or damage through its conduct as the solicitor for ASC.
  1. [78]
    In her written submissions in reply,[16] the plaintiff seeks to have the duty pleaded narrowed in a different way. In response to the defendant’s submissions as to the breadth of the duty pleaded, she submits that the defendant’s arguments ignore the words “in the premises” with which paragraph 20 is opened. She submits that those words “clearly indicate that the duty alleged is to be understood in the context of the facts pleaded before it.” That, as a matter of pleading, is simply incorrect. The use of the words “in the premises”, as a matter of pleading, mean that because of the facts pleased before it, the duty as alleged arises: and that duty is of the width pleaded.
  1. [79]
    The plaintiff should not now be given leave to now plead a different duty, the question of the existence of the pleaded duty having been ordered to be determined. In any event, the reasoning which follows would also apply to a more narrowly cast duty.
  1. [80]
    In Hill v Van Erp,[17] Brennan CJ said:

“Generally speaking, however, a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession.  That is because the solicitor’s duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interest in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client.  But the interests of a client who retains the solicitor to carry out the client’s testamentary instructions and the interests of an intended beneficiary are coincident.

Most testators seek the assistance of a solicitor to make their intentions effective.  The very purpose of a testator’s retaining of a solicitor is to ensure that the testator’s instructions to make a testamentary gift to a beneficiary results in the beneficiary’s taking that gift on the death of the testator.  There is no reason to refrain from imposing on a solicitor who is contractually bound to the testator to perform with reasonable care the work for which he is being retained a duty of care in tort to those who may foreseeably be damaged by carelessness in performing the work.  The terms of the retainer determine the work to be done by the solicitor and the scope of the duty in tort as well as in contract.  A breach of the retainer by failing to use reasonable care in carrying the client’s instructions into effect is also a breach of the solicitor’s duty to an intended beneficiary who thereby suffers foreseeable loss.”

  1. [81]
    In attempting to establish in this case an analogous duty to that found in Hill, the plaintiff submits:

“The critical point is that the duty owed by the solicitor to the client is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interests.  On any view, the defendant’s failure to comply with Part 7 PTA 78 must mean that when it acted for ASC in the proceedings in the Federal Magistrates Court and the District Court it was not doing so lawfully.” (original emphasis)[18]

  1. [82]
    The plaintiff’s emphasis upon the solicitor’s duty owed to the client being the application of knowledge and skill in the lawful protection and advancement of the client’s interests, adopts the words of Brennan CJ in the passage from Hill quoted above.  However, it does so in an incomplete way.  The interests of the client to which his Honour referred were those “in the transaction in which the solicitor is retained”.  It is that duty which “cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client”. (emphasis added)
  1. [83]
    That passage, and what his Honour goes on to say, emphasise the importance of the particular work to be performed under the retainer between the solicitor and the client as being essential to any determination as to whether a duty owed to a third person can arise.
  1. [84]
    The significance of the retainer in determining that issue can be seen from the joint judgment of French CJ, Kiefel and Keane JJ in Badenach v Calvert,[19] where their Honours observed:

Nevertheless it may be seen from most of the judgments that the duty found to be owed by the solicitor to Mrs Van Erp as the intended beneficiary had its source in the solicitor’s obligations arising from the retainer between the solicitor and her client. The solicitor was obliged to exercise care and skill in giving effect to her client’s testamentary intentions. The interests of the testatrix and the intended beneficiary in those intentions being carried into effect were relevantly the same. Recognising a duty to the intended beneficiary would not involve any conflict with the duties owed by the solicitor to her client, the testatrix.” (emphasis added).

  1. [85]
    In the same case, Gageler J also referred to the retainer as establishing the scope of the duty owed to the client. His Honour said:

Subject to statutory or contractual exclusion, modification or expansion, the duty of care which a solicitor owes to a client is a comprehensive duty which arises in contract by force of the retainer and in tort by virtue of entering into the performance of the retainer. The duty is to exercise that degree of care and skill to be expected of a member of the profession having expertise appropriate to the undertaking of the function specified in the retainer.” (emphasis added).

  1. [86]
    His Honour explained the duty arising in respect of the third party beneficiary in these terms:

The duty of care which a solicitor who is retained to prepare a will owes to a person whom the testator intends to be a beneficiary is more narrowly sourced and more narrowly confined. The duty arises solely in tort by virtue of specific action that is required of the solicitor in performing the retainer. The duty plainly cannot extend to requiring the solicitor to take reasonable care for future and contingent interests of every prospective beneficiary when undertaking every action that might be expected of a solicitor in the performance of the solicitor’s duty to the testator. If the tortious duty of care were to extend that far, it would have the potential to get in the way of performance of the solicitor’s contractual duty to the testator. Extended to multiple prospective beneficiaries, it would be crippling.” (emphasis added).

  1. [87]
    His Honour went on to say:

The solicitor’s duty of care is instead limited to a person whom the testator actually intends to benefit from the will and is confined to requiring the solicitor to take reasonable care to benefit that person in the manner and to the extent identified in the testator’s instructions. The testator’s instructions are critical. The existence of those instructions compels the solicitor to act for the benefit of the intended beneficiary to the extent necessary to give effect to them. The instructions define the intended benefit, absence of which constitutes the damage which is the gist of the cause of action in negligence. The instructions expose the intended beneficiary to carelessness on the part of the solicitor in giving effect to those instructions against which the intended beneficiary cannot protect. The instructions thereby give rise to a position of vulnerability on the part of the intended beneficiary of a kind which has been recognised to be ordinarily necessary to justify the imposition of tortious liability for damage comprised of purely economic loss.”

  1. [88]
    Furthermore, of considerable importance is the fact that the plaintiff characterises the harm which she has suffered as the loss of an opportunity to receive compensation under s 94(1)(a) of the PTA.[20]  As the plurality in Badenach v Calvert[21] said:

“It may immediately be observed that the loss claimed in [Hill v Van Erp] was not the loss of an opportunity or a chance.  Compensation was claimed for the loss of the property which would have been transferred to the intended beneficiary but for the negligence of the solicitor acting for the testatrix.  What the beneficiary lost was no mere expectation, but rather a share in the testatrix's estate.”

  1. [89]
    In order to determine whether any duty owed by the defendant to the plaintiff might arise, it is necessary to consider the scope of the duty, in contract and tort, owed by the defendant to ASC in respect of any transaction in which the defendant was retained. In that regard, it ought be observed that the plaintiff’s primary submissions proceeded on the basis that the duty owed to her by the defendant was in its carrying out its representation of ASC.[22] That assumes the defendant being retained by ASC to represent him. This is consistent with the duty pleaded at paragraph 20 being a duty to ensure that she was not exposed to the risk or loss or damage “through its conduct as the solicitor for ASC”. That too assumes the defendant being retained by ASC as his solicitor.
  1. [90]
    In her written submissions in reply[23] the plaintiff raises that s 95(1)(a) extends to proscribe the making of the contract of retainer with a solicitor. Those submissions do not develop the consequences of the nullity of such a contract, or the complete absence of any retainer. Those matters do not need to be resolved because of the manner in which the duty is pleaded in paragraph 20; the existence of that duty being the question ordered to be decided.
  1. [91]
    The extent to which the scope of any retainer is pleaded is that, first: the defendant was the legal representative of ASC in the Federal Magistrates Court proceedings[24] against YZX claiming an adjustment of their matrimonial property[25] in which consent orders were made that he transfer his interests in the former matrimonial home;[26] and that YZX pay him the sum of $260,000;[27] that he pay all moneys necessary to discharge his indebtedness to the registrar of State Penalties Enforcement Registry and cause the discharge of writ number 714390540 dated 30/3/2012 and pay all costs;[28] and that in October 2012 it paid the money received under those orders to the defendant or to others at his direction.[29]
  1. [92]
    The second transaction in respect of which the defendant was retained, as identified in the pleadings, was its holding the defendant’s instructions to defend the plaintiff’s claim for damages for trespass to the person.[30]
  1. [93]
    It could not be said that the plaintiff had any interest in either of these transactions of the kind contemplated in Hill.  Neither transaction was entered into for a purpose of benefitting the plaintiff.
  1. [94]
    Dealing first with the instructions to defend the plaintiff’s claim for trespass to the person, on no view could it be said that the defendant performing work to carry out those instructions would give rise to an interest in the transaction on the part of the plaintiff which was coincident with the interest of ASC.
  1. [95]
    In respect of the first transaction, the plaintiff was not a person who may have been foreseeably damaged by the defendant’s carelessness in performing the work the subject of the retainer. The work the subject of the retainer for the first transaction involved representing ASC in proceedings which would affect an adjustment of matrimonial property. It saw one asset, his existing share in a matrimonial home, exchanged for a different asset, $260,000. The plaintiff was not a person in contemplation of the parties to that transaction who would benefit from it. She had no relevant interest in the transaction, let alone one which was coincident with ASC’s.
  1. [96]
    Contrary to the plaintiff’s submission, ASC’s interest in that transaction was not that the public trustee be enabled to exercise its power under Part 7 of the PTA.  That was not the work to be done under the retainer.  Nor was it the scope of the duty owed by the defendant to ASC in contract and tort.  No coincident duty to the plaintiff arose.
  1. [97]
    The plaintiff’s submissions cast (or seek to recast) the duty owed to ASC by the defendant at such an abstract level, without reference to the scope of the instructions reflected in the retainer, so as to be meaningless. If correct, every lawyer retained by any client in respect of any transaction would owe a duty to each and every person who may have some claim against the client in respect of entirely unrelated matters. That is, that the lawyer owed a duty in contract and tort to the client to carry out the latter’s instructions according to law, and that duty owed to the client gave rise to a further duty to all third parties with some nebulous interest in the affairs or estate of the client to carry out the representation of the client according to law. That cannot be so.
  1. [98]
    The plaintiff’s submissions that the court should hold that the defendant owed a duty of care to the plaintiff analogous to that found in Hill must be rejected.
  1. [99]
    In respect of the proscription of a contract of retainer raised in the plaintiff’s reply submissions, whilst it is not the pleaded case and need not be resolved as it is not the question to be determined, it might be observed that any attempt to allege that a duty arises by analogy with the duty in Hill, but in the absence of any retainer between solicitor and client, must be futile. The duty in Hill owes its very existence to the retainer.
  1. [100]
    The alternative basis upon which the plaintiff seeks to establish a duty of care owed to her by the defendant by reference to the factors set out in Caltex Refineries (Qld) Pty Ltd v Stavar, should also be rejected in my respectful opinion.
  1. [101]
    In Caltex Refineries Allsop P said:

“This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

These salient features include:

  1. (a)
    the foreseeability of harm;
  1. (b)
    the nature of the harm alleged;
  1. (c)
    the degree and nature of control able to be exercised by the defendant to avoid harm;
  1. (d)
    the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
  1. (e)
    the degree of reliance by the plaintiff upon the defendant;
  1. (f)
    any assumption of responsibility by the defendant;
  1. (g)
    the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
  1. (h)
    the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
  1. (i)
    the nature of the activity undertaken by the defendant;
  1. (j)
    the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
  1. (k)
    knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
  1. (l)
    any potential indeterminacy of liability;
  1. (m)
    the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
  1. (n)
    the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
  1. (o)
    the existence of conflicting duties arising from other principles of law or statute;
  1. (p)
    consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
  1. (q)
    the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features.  Nor should the list be seen as exhaustive.  Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.”[31]

  1. [102]
    The plaintiff makes submissions about each of the salient features and concludes that a balancing of those features supports the existence of the duty alleged. It is not at all clear as to how the plaintiff concludes that any such balance lends such support. The submission is entirely undeveloped. The submissions do acknowledge that some of the salient features would weigh against the existence of the duty alleged. Particularly, the plaintiff acknowledges that she did not rely upon the defendant and the defendant did not assume any responsibility.
  1. [103]
    The plaintiff’s submissions in favour of the existence of the duty alleged proceed on the basis that Part 7 of the PTA imposed a legal obligation upon the defendant.  For reasons which will be developed further when considering the existence or otherwise of a statutory duty, Part 7 of the PTA did not impose such an obligation upon the defendant.
  1. [104]
    Of the features identified by Allsop P as “the nature of the activity undertaken by the defendant” the plaintiff submits that, in this case, that “[does] not seem relevant”.[32]  Of the identified feature of “existence of conflicting duties arising from other principles of law or statute”, and “the desirability of and in some cases need for conformance and coherence in the structure and fabric of the common law, she makes three submissions:
  • In reality, no conflicting duties arise because the duty alleged requires no more than compliance with the law which is required of everyone;
  • The alleged duty is consistent with the scope and object of Part 7 PTA 78;
  • The alleged duty already exists within the common law.  The only question is whether or not it is owed to the plaintiff.”[33]
  1. [105]
    In respect of the last of those submissions, it is not at all clear as to what it is that the plaintiff is referring when she says that the alleged duty already exists within the common law, the only question being whether the existing duty is owed to her. It may be that it is referring to her earlier submission that a legal practitioner has a duty to obey the law. The plaintiff had earlier made that submission[34] by reference to the academic work of Professor Corones[35] and to the extra-judicial writing of Justice Williams.[36]  Neither author, however, in the passages cited in the plaintiff’s submissions, suggested a duty of the kind and extent alleged by the plaintiff.  Corones was referring to such a general duty owed to the court, a breach of which might result in disciplinary proceedings.  The plaintiff’s submissions conflate the general duty to obey the law, dealt with in Chapter 10 of Corones’ work, with the expectation to be aware of the law to which the author refers earlier (in Chapter 8) of his work when addressing the standard of care in the context of negligence.  It is wrong to conflate what the author was addressing as two clearly separate issues.
  1. [106]
    Those submissions for the plaintiff on those features are, in my view, at odds with what was observed by Bond J in Lee v Abedian & Ors.[37]  Having set out some of the salient features identified by Allsop P in Caltex,[38] his Honour observed:

“The plaintiff’s argument focused on the considerations identified in (a) and (d) and it may be accepted that his pleading adequately deals with those matters and that they tend to point towards the existence of a duty. It is arguable that the same may be said for the considerations identified in (c), (d), (e) and (g).  But, as the High Court observed in Sullivan v Moody “[d]ifferent classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care”.  In this case it seems to me that the relevant problem is an evaluation of the significance of the considerations in (i) and (j) as informed by (b), (f) and (h) and that it is those matters which should become the focus of my attention to arrive at a conclusion as a matter of principle.

The impugned activities were activities allegedly undertaken by a solicitor for a client.  They were the activities which the solicitors were retained by their client to do, namely to prepare a report about potential legal proceedings by the client against a third party, so that the client could use that report in what the client conceived were its own interests (by giving the legal report to someone else).  The action which, ex hypothesi, could have been taken to avoid the harm was to perform the retainer bearing in mind not just the interests of the client but also the interests of the third party.  And the nature of the harm alleged is harm alleged to be directly consequential upon the performance of the very thing which the solicitors were retained to do.

To contend that the solicitors owed the third party a duty of care is to seek to do the very thing which Brennan CJ said could not be done, namely to temper the duty undoubtedly owed to the client by the existence of a duty to a third person whose interests in the transaction are not coincident with the interests of the client.  I would apply his Honour’s observations to conclude that a duty of care owed to the client in connection with the production of a report concerning potential legal proceedings against a third party cannot be tempered by the existence of a duty to the client’s potential adversary in those legal proceedings. 

The plaintiff contended that there was no inconsistency issue because the content of the duty of care owed to him by the solicitors could be formulated in such a way as to be not inconsistent with the duty of care which they owed their client.  The plaintiff contended that the duty in each case was to take care to be accurate in stating facts and opinions.  I do not think that that proposition is an adequate answer to the problems I have identified.  As Brennan J noted in the Council of the Shire of Southerland v Heyman [1985] 157 CLR 424 (at 487)

‘…a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member.’

In this case and the inconsistency issue was created by who the plaintiff was and the interests the plaintiff had in comparison with those of the solicitor’s client rather than solely by the content of the duty.

My conclusion is consistent with reasoning in Al-Kandari v JR Brown & Co [1988] QB 665 (a case cited with approval by Dawson J in Hill v Van Erp at 187) that a solicitor acting for a party who was engaged in hostile litigation owes a duty to the client and to the court but the solicitor does not normally owe any duty to the client’s opponent.  I do not see that any relevant distinction is to drawn between the position of an actual opponent, litigation having commenced, and that of a potential opponent, litigation being only contemplated.

I also think that recognition of the alleged duty would be inconsistent with the desired ability of coherence in the law governing the duty of undivided loyalty which solicitor’s owe to their clients.  I observe:

  1. (a)
    In Farrington v Rowe McBride & Partners[1885] 1 NZ LR 83, Richardson J observed (in a passage oft cited with approval) as follows (at 90):

‘A solicitor’s loyalty to his client must be undivided.  He cannot properly discharge his duties to one whose interests are in opposition to those of another client.  If there is a conflict in his responsibilities to one or both he must ensure he fully discloses the material facts to both clients and obtains their informed consent to his…

And there will be some circumstances in which it is impossible, notwithstanding such disclosure for any solicitor to act fairly and adequately for both. 

But the acceptance of multiple engagements is not necessarily fatal.  There may be an identity of interests or the separate clients may have unrelated interests.  Such cases seem straight forward so long as it is apparent that there is no actual conflict between duties owed in each relationship. 

It would be introduce an undesirable incoherence to the law to conclude that the solicitor who owed a duty of undivided loyalty to the client, but at the same time was required to discharge a duty of care to a third party whose interests were opposed to the clients interests because the question of the liability of the third party to the client is the subject matter of the solicitor’s retainer (and because it was foreseeable that the way in which the client intended to use the report might harm the third party).  I do not accept the plaintiff’s contention that his interests and those of Sunland are relatively to be regarded as the same, namely the prosecutor be told the truth.  That seems to me to be too limited and unrealistic a consideration of what were the interests of the plaintiff and of Sunland

This consideration also supports the observations of Brennan CJ in Hill v Van Erp which I have followed.’[39](emphasis added).

  1. [107]
    Those reasons were expositive of his Honour’s earlier expressed view[40] that Brennan CJ’s statement in Hill as to the general position being a solicitor’s duty was owed solely to the client and could not be tempered with the existence of a duty to a third person without coincident interest in the transaction, was a “stumbling block” which the duty suggested in Lee “runs up against”.  In my view, the duty suggested in this case likewise runs up against the same stumbling block for the reasons explained by Bond J. 

His Honour went on to observe, at [62];

‘It does not follow from the foregoing that there can be no remedy for a client’s adversary or potential adversary if the solicitor has engaged in misconduct in carrying out a retainer.  It is just that the safeguards against him propriety may have to be found in the rules and remedies relevant to the regulation of the professional conduct of solicitors, or, in appropriate cases (and so such case has advanced against the fourth defendant’s), the intentional torts.  In Al-Kandari v JR Brown & Co [1988] QB 665, Lord Donaldson of Lymington MR (with whom Dillon LJ agreed) observed (at 672):

‘A solicitor acting for a party who is engaged in “hostile” litigation owes a duty to his client and to the court but it is not normally owe any duty to his client’s opponent: Business Computers International Ltd v Registrar of Companies [1987] 3 WLR 1134.  This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation: Myers v Elman [1940] AC 282. ….’”

  1. [108]
    These observations are opposite as well. Part 4.10 of the Legal Profession Act 2007 provides for compensation orders including that the law practice pay compensation to a complainant for compensation suffered because of unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.

Conclusion in respect of question 1

  1. [109]
    In my view, the first question should be answered in the negative.

Does part 7 of the Public Trustee Act 1978 (Qld) create a statutory duty?

  1. [110]
    The duty which the plaintiff alleges is set out in paragraph 21(a) of the statement of claim as follows:

“21. Further, or in the alternative:

  1. (a)
    The provisions of Part 7 Public Trustee Act 1978 imposed an obligation on the said William Laurance Jensen and the defendant to submit the estate of the said William Laurance Jensen to the control of the public trustee.”
  1. [111]
    In her written submissions[41] the plaintiff contends that the effect of ss 91 and 95 of the PTA was to impose a mandatory obligation upon ASC and the Defendant to submit the estate to the public trustee and not to manage it themselves.
  1. [112]
    In my view, there is nothing in s 91 which could be construed as imposing an obligation upon a prisoner (and by extension anyone acting on his or her behalf) to submit his or her estate to the control of the public trustee.
  1. [113]
    The plaintiff’s submissions do not explain what a prisoner must do “to submit” his or her estate to the public trustee. There is nothing prescribed in Part 7 in that regard. As the defendant submits, there is, for example, no requirement compelling the prisoner, or anyone who may be in control of a prisoner’s property, to do anything to surrender possession to the public trustee.
  1. [114]
    However, more fundamentally, that Part 7 should not be construed as imposing such an obligation upon a prisoner to submit his or her estate to the control of the public trustee is apparent from the way its provisions operate. As already observed, s 91 operates as a matter of law to make the public trustee the manager of the prisoner’s estate.[42]  As also already observed, the public trustee continues to manage the prisoner’s estate until such time as the authority to do so ceases upon the occurrence of any of the events or circumstances identified in s 97, or the public trustee determines to discontinue managing it under s 92.
  1. [115]
    Section 94(1) prescribes the powers of the public trustee when manager of the prisoner’s property. Those powers are, effectively, without limit in dealing with the prisoner’s property. The public trustee has “full power to deal with any property of the prisoner”….and “generally may do all such things in relation to property…as the prisoner could do if the prisoner was not a prisoner.”
  1. [116]
    Understood in this way, the estate of the prisoner is submitted to the control of the public trustee by operation of law upon his or her conviction and sentence to imprisonment for three years or more. Nothing remains for the prisoner, or anyone else, to do to submit his or her estate to the public trustee’s control. The alleged obligation is simply unnecessary.
  1. [117]
    Nor does s 95 impose such an obligation. Section 95(1) operates, again as a matter of law, to render the prisoner incapable of doing certain things in respect of property, or bringing or defending certain actions, without prior written consent of the public trustee. That provision does not impose any obligation upon the prisoner (or anyone on his behalf) to submit his or her estate to the public trustee. It removes a prisoner’s capacity to deal with his or her estate, already submitted to the control of the public trustee, in certain ways during the period it remains under management.
  1. [118]
    The plaintiff’s written submissions somewhat recast the obligation or duty pleaded. At paragraph 24 of those submissions it is referred to as “the obligation not to act contrary to Part 7 PTA 78”.  The burden of that obligation being said to be cast upon ASC and, by extension, the defendant as his agent while acting as his legal representative.  Even as recast, the asserted obligation should be rejected.
  1. [119]
    There is no cause to construe Part 7 of the PTA as imposing an obligation not to act contrary to its provisions when, as the plaintiff’s submissions reflect, any such contrary act will be a nullity.[43]
  1. [120]
    By reference to certain of the particular powers to deal with the prisoner’s property conferred by s 94 the plaintiff seeks to characterise Part 7 as “a statute protecting the interests of specified claimants against a prisoner’s estate”[44] and that “the harm which Part 7 protects against is the inappropriate management of a prisoner’s estate having regard to both the prisoner’s claims against others and the claims of others against the prisoner”.[45]  She submits that in the absence of the contended for statutory duty such claimants against the prisoner’s estate would be left without a remedy if a prisoner and his agents simply ignore the statute.
  1. [121]
    The interests of the specified claimants are only protected in the sense and to the extent that the public trustee as manager of the prisoner’s property is expressly empowered to deal with that property to meet such claims, as would the prisoner be able if not incapacitated. Those interests are protected in the sense that they are preserved. The property still may be used to meet such a claim. However, the preservation of those interests is not such as to impose any duty on the prisoner or his agents as alleged, or indeed upon the public trustee.

Conclusion as to the second question

  1. [122]
    The second question should be answered in the negative.

Third question

  1. [123]
    As the second question is answered in the negative, it is unnecessary to answer the third question.

Footnotes

[1] With the exception of commonwealth offenders and juveniles in detention.

[2] As provided for in s 4.

[3] Although it will be unnecessary to resolve the issue, the submission ignores similar definitions and provisions analogous to s 214 of the CSA being contained in successive enactments dealing with prisoners and parole from at least 1988.  See: Corrective Services Act 1988, ss 10 and 184; Corrective Services Act 2000, ss 4, 153 and schedule 3.  Earlier enactments although not containing any definition of “prisoner”, also contained provisions by which a prisoner was still considered to be under, or serving, his sentence.  See: Offenders Probation and Parole Act 1959, s 34; Offenders Probation and Parole Act 1980, s 63.

[4] Section 28 relating to carrying on a business; s 28A to 28H relating to prisoners’ artwork; chapter 2, part 2, division 4, sub-division 1 dealing with prisoner mail; and chapter 6, part 11 dealing with prisoners’ ,money.

[5] Defendant’s written submissions, para 19.

[6] Section 3(a).

[7] Sections 181, 181A, 182, 182A and 183.

[8] CSA s 4 and schedule 4; PSA s 4.

[9] [1974] 131 CLR 623 at 627-629 per Barwick CJ, Menzies, Stephen & Mason JJ.

[10] (2008) 238 CLR 287.

[11] (1997) 188 CLR 159.

[12] (2009) 75 NSWLR 649.

[13] [2016] 257 CLR 440.

[14] Plaintiff’s written submissions, para 13.

[15] Ibid at para 14.

[16] Paragraph 24.

[17] (1997) 188 CLR 159 at 167.

[18] Plaintiff’s written submissions, para 18.

[19] (2016) 257 CLR 440 at [18]-[22].

[20] Plaintiff’s written submissions para 20.

[21] Supra at [14].

[22] Plaintiff’s written submissions paragraph 13.

[23] In paragraph 23.

[24] Statement of claim para 7(c).

[25] Statement of claim para 4.

[26] Statement of claim para 6(a).

[27] Statement of claim para 6(b).

[28] Statement of claim para 6(c).

[29] Statement of claim para 11.

[30] Statement of claim para 13 & 16.

[31] (2009) 75 NSWLR 649 at [102]-[104].

[32] Plaintiff’s written submissions para 21.

[33] Ibid.

[34] Plaintiff’s written submissions para 19.

[35] Professional Responsibility and Legal Ethics in Queensland, Law Book Co 2008 at [10]-[25].

[36] Harrisons Law and Conduct of the Legal Profession Second Edition The Lawyers Book Shop Press 1984.

[37] [2016] QSC 92.

[38] His Honour set out fewer of the features with the consequence that those identified as (i), (o) and (q) in Allsop P’s reasons became, respectively, (f), (i) and (j) in Bond J’s reasons.  His Honour’s references to the features enumerated in his reasons must be read with that in mind when comparing them to Allsop P’s reasons.

[39] Ibid at [55]-[60].

[40] At [50].

[41] Paragraph 23.

[42] Fitzpatrick v Jackson (1989) 2 QdR 542 per Kelly SPJ at 544.

[43] Fitzpatrick v Jackson [1989] 2 Qd. R. 542; Tyler v Krause [2003] 1 Qd. R. 453; Di Carlo v Kashani-Malaki [2013] 2 Qd. R. 17.

[44] Plaintiff’s reply submissions para 18 and plaintiff’s written submissions para 25.

[45] Plaintiff’s written submissions para 26.

Close

Editorial Notes

  • Published Case Name:

    KMQ v QS Law Pty. Ltd.

  • Shortened Case Name:

    KMQ v QS Law Pty. Ltd.

  • MNC:

    [2019] QDC 48

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    12 Apr 2019

Appeal Status

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