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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
McMahon v Greer & Ors  QDC 101
CLARE SUSAN McMAHON
DAMIEN GREER LAWYERS
JACOBA BRASCH QC
BD 3524 of 2019
District Court of Queensland
1 June 2020
5 May 2020
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the first, second and fourth defendants represented the plaintiff in family law proceedings – where the third and fifth defendants were instructed by the first and fourth defendants to appear in relation to such family law proceedings – where the plaintiff makes application for summary judgment – where the first, second and fourth defendants make application for summary judgment – where the third and fifth defendants make application for summary judgment.
Uniform Civil Procedure Rules 1999 (Qld)
Deputy Commissioner of Taxation v Salcedo  QCA 227
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Giannarelli v Wraith (1988) 165 CLR 543
Rogers v Roche (No. 1)  2 Qd R 306
Wilson v Carter  NSWSC 1351
CS McMahon (Self-Represented)
SJ Williams QC for the first, second and fourth defendants
H Blattman for the third and fifth defendants
Barry Nilsson Lawyers for the first, second and fourth defendants
Carter Newell Lawyers for the third and fifth defendants
- By claim and statement of claim, filed in the Brisbane Registry of this Honourable Court, Clare Susan McMahon claimed $700,000 damages, interest accrued from 10 October 2016, costs, such further and/or other relief as this Honourable Court deemed fit and an order that the defendants pay a pecuniary penalty, or a penalty as this Honourable Court deems fit.
- Applications have been filed for summary judgment by, on the one hand, the first, second and fourth defendants, who are respectively, Damien Greer (Principal of Damien Greer Lawyers), Damien Greer Lawyers and Sarah Dibley (solicitor employed by Damien Greer Lawyers), who I shall refer collectively to as the solicitor applicants. On the other hand, the third defendant, Dr Jacoba Brasch QC and fifth defendant, Jeffrey Bunning, both barristers to whom I will hereinafter refer to as the barrister applicants.
- The plaintiff applicant, Clare Susan McMahon, also makes application for summary judgment and other relief as set out in her application filed 9 April 2020.
- The plaintiff applicant’s statement of claim comprises 368 paragraphs and some 39 pages. She sets out on page 37 of the statement of claim the following:
“Duty to the Client
- The defendants failed in their fiduciary relationship, their duty of care, to act honestly and fairly, and with competence and diligence.
- The facts of these matters detail numerous instances.
- Matters being specifically pleaded as outlined in Rule 150(1) of the Uniform Civil Procedure Rules (1999), include:
- (a)breach of contract or trust;
- (b)damages claimed as outlined;
- (f)motive, intention or other condition of mind, including knowledge or notice;
- (g)negligence or contributory negligence;
- (i)part performance;
- (j)undue influence;
- (k)wilful default;
- (l)anything else required to be specifically pleaded.”
- The plaintiff applicant claims $700,000 by way of damages together with $46,000 interest and $2,000 for costs of issuing the claim and the statement of claim. No particulars are provided as to how the plaintiff applicant arrived at that figure.
- In short compass, the plaintiff applicant engaged the second defendant, to act on her behalf in Federal Circuit Court, Family Law proceedings. These proceedings involved both property settlement and children’s matters.
- The property proceedings were settled between the parties but it would appear not to the satisfaction of the plaintiff applicant. She complains she received significantly less by way of property division than she had sought in the proceedings and less than she had been told she was entitled to receive by her lawyers.
- Children’s matters were finally resolved by the court when it heard and determined the issues relating to the children. Judgment and written reasons were given by the presiding Federal Circuit Court Judge Coker (as he then was). Again the plaintiff applicant says she is dissatisfied with the outcome of that aspect of the Family Court proceedings.
- It is clear from the matters set out in her statement of claim that she was generally upset and dissatisfied with the service rendered by the solicitors, and the barristers engaged by the solicitors. She is clearly aggrieved that the proceedings did not resolve in the way she wished. Consequently, she has issued the proceedings the subject of these applications.
- The plaintiff applicant makes various allegations against the defendants. In particular, the plaintiff applicant says the solicitor applicants failed to act in accordance with her instructions and obtain the outcome in the proceedings to which she considered she was entitled.
- In respect of the barrister applicants, she says Dr Brasch QC failed to attend court and thereby somehow put the plaintiff applicant’s case at a disadvantage. She states Mr Bunning failed to properly prepare and cross-examine the father of the children in the child proceedings trial, and therefore caused the plaintiff applicant to fail in those proceedings. It is also alleged Dr Brasch QC misled the parties with respect to her availability to run the trial for children’s matters as she knew that she would not be available.
- In her outline of argument the plaintiff applicant says at paragraph 9:
“All the defendants have been in breach of providing the duty of care expected of a legal practitioner. They have caused damages – financial, emotional and psychological distress and trauma. The defendants have failed in their performance/part performance. Additionally, causes of action being pleaded include: misleading, deceptive and dishonest conduct; negligence; undue influence and distress (The Greer Defendants only); lack of diligence in delays in actioning; misrepresentation (Mr Bunning only); wilful default, intent to deceive and mislead; intent with motive to put firm and/or colleague first (the Greer defendants); intent with motive to avoid representing the plaintiff (Dr Brasch QC only) and intent with motive to be released from representing the plaintiff (Dr Brasch QC only).”
- The solicitor applicants and the barrister applicants have both filed defences in respect of the claim, although I note it has been impossible for them to properly plead their defence given the state of the plaintiff applicant’s statement of claim. Notably, the allegations as general and un-particularised as they are of negligence or breach of duty etc., have been specifically denied.
Statement of claim
- In its present form, the statement of claim offends against rules 149, 150 and 155 of the Uniform Civil Procedure Rules 1999 (“UCPR”) at least. It is, in my view, as submitted by the solicitor applicants and barrister applicants, liable to be struck out pursuant to r 171 of the UCPR which states:
“171 Striking out pleadings
- (1)This rule applies if a pleading or part of a pleading—
- (a)discloses no reasonable cause of action or defence; or
- (b)has a tendency to prejudice or delay the fair trial of the proceeding; or
- (c)is unnecessary or scandalous; or
- (d)is frivolous or vexatious; or
- (e)is otherwise an abuse of the process of the court.”
- In my view, the pleading as it currently stands offends against each of the subparagraphs referred to in that rule.
- To this end, I asked the plaintiff applicant if she was prepared to seek legal advice and to subsequently file an amended statement of claim in compliance with the UCPR. She indicated she would not do so.
- It should also be noted that the solicitor applicants in correspondence pursuant to UCPR r 444 also invited the plaintiff applicant to address concerns about the statement of claim by filing and serving an amended statement of claim. The plaintiff applicant declined that invitation. Application for summary judgment is therefore made by the solicitor applicants and the barrister applicants pursuant to UCPR r 293. The principles pertaining to applications for summary judgment are contained in r 293 of the UCPR which provides:
“293 Summary judgment for defendant
- (1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
- (2)If the court is satisfied—
- (a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
- (b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- The principles are set out in the authority of Deputy Commissioner of Taxation v Salcedo  QCA 227 where Williams JA (with whom McMurdo P and Atkinson J agreed) stated:
“…ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.”
- The allegations made against Dr Brasch QC are fanciful, misconceived, unfair and plainly wrong. These matters are addressed in the barrister applicants’ submissions, both written and oral. In essence, Dr Brasch was engaged to appear on behalf of the plaintiff applicant. Dr Brasch became seriously ill and was unable to attend on the day that the matter was set for hearing of the property dispute.
- Negotiations proceeded and ultimately, after a lengthy day of negotiations, property issues were settled. The starting point for property negotiations as set out in CSM10, was that the plaintiff applicant valued the total property pool at $2,936,432 and the husband valued the total property pool at $2,466,578. Ultimately, the asset pool was negotiated to be $2,599,850.72, meaning the plaintiff applicant retained $1,474,000 being approximately 56.7% of the total pool. It is clear the plaintiff applicant was involved in the negotiations over a lengthy period of time on the day the matter was set for trial in respect of property settlement and in all the circumstances of those negotiations, agreed to resolve the property on the basis set out.
- The plaintiff applicant complains she did not want property settled until child matters were resolved, arguing this would cause the husband to negotiate more appropriately in respect of children’s matters. This of course in my view, is misconceived. The matter was listed for hearing in respect of property and quite properly, the parties ultimately negotiated an agreement. Each appears to have given some ground in respect of their designated asset pool, and settlement was achieved. It would of course be quite inappropriate in my view, to try to leverage the husband in respect of children by failing to resolve property matters when appropriate.
- Dr Brasch QC’s involvement in these proceedings was limited to some discussions over the weekend with the husband’s barrister, which the plaintiff applicant says was wrong and should not have taken place. This was plainly misconceive; negotiations between the barristers representing the parties is conducted as a matter of course. There is no suggestion on the material that Dr Brasch was not prepared for the proceedings, that she withheld information she was unwell, that she gave wrong information about her availability in respect of children’s matters, or that she somehow inappropriately invoiced for work she had done.
- In my view, there is simply no basis for any claim against Dr Brasch QC. Proceedings should not have been commenced against her and the plaintiff applicant has no prospects of success in an application against her.
- Insofar as the allegations against Mr Bunning are concerned, those addressed in paragraphs 27 to 29 of the plaintiff applicant’s written outline of submissions concern his involvement in the case as an advocate. I note particularly the submission of the barrister applicants at paragraph 31 which says these criticisms are not actionable because advocacy immunity applies.
- Advocacy immunity applies to work done in court or work done out of court which leads to a decision affecting the conduct of a case in court, or work intimately connected with work in a court. In any event, the proceedings proceeded to trial and a decision was given.
- I also note that the submission set out in paragraph 32 of the barrister applicants’ outline of submission which notes the plaintiff applicant’s complaint about Mr Bunning’s cross-examination of her ex-husband, trial submissions, and decisions as to what evidence to deploy and emphasis, are inarguably caught by advocates’ immunity.
- In Wilson v Carter  NSWSC 1351 Rothman J said:
“It is difficult to imagine out-of-court work more connected with conduct of the case in court than the determination of the witnesses to be called and the evidence to be adduced from them.”
- I also note particularly the submission in paragraph 33 which says the plaintiff applicant’s claim against Mr Bunning, involving as it does a collateral attack on the court’s determination of the parenting matters in the proceedings, must fail. That is so irrespective of whether the allegation is one of breach of duty or of misrepresentation, because:
“The applicability of the immunity turns upon the application of the test proved in Attwells to the acts and omissions of the advocate upon which the claim is based, rather than upon the identification of the particular cause of action upon which a plaintiff relies.”
- I note particularly that no appeal was ever pursued with respect to the decision of his Honour Judge Coker. In those circumstances, it is clear the plaintiff applicant has no reasonable prospect of success in her claim against the barrister applicants and they are entitled to summary judgment and costs.
- Insofar as the solicitor applicants are concerned, they do not have the benefit of any advocate immunity. However, it is not possible to discern from the statement of claim exactly what it is that forms the basis of the plaintiff applicant’s allegation of negligence etc., by them. The plaintiff applicant sought advice with respect to family matters and engaged the solicitor applicants to act on her behalf in respect of those matters, that included both property and children issues. The property matters were compromised at court on 10 October 2016 and sanctioned by a Judge making the agreed orders on that date.
- The parenting issues proceeded to trial on 24 April 2017 and judgment was delivered two days subsequently. No appeal of that decision was made. Although the plaintiff applicant says there were some issues in respect of her making that appeal, it seems clear the appeal was drafted by counsel and available in time to be filed, but the plaintiff applicant instructed that no appeal should be undertaken.
- In respect of the property aspects, it is clear negotiations took place, in which the plaintiff applicant was involved, her instructions sought and given during the course of the negotiations, and at the end of which she agreed to settlement on the basis set out above.
- It is entirely possible the litigation in the Family Court did not provide the plaintiff applicant with the outcomes which she desired, however such is the way of litigation generally.
- In all of the circumstances, having regard to the outcome of the Family Court proceedings, that is, that the property proceedings were compromised with the full knowledge and acquiescence of the plaintiff applicant and sanctioned by the court, and that the children’s matters proceeded to trial and were determined by a Judge, it is difficult to see having regard to the plaintiff applicant’s statement of claim, that the matter has not proceeded in way other than appropriate and in accordance with the instructions of the plaintiff applicant.
- During the course of the hearing of these applications, the plaintiff applicant did say all she really wanted was an apology. Of course, this was not forthcoming and it is difficult to imagine why such an apology would be given.
- Having given the plaintiff applicant an opportunity to obtain legal advice and file an amended claim against the solicitor applicants, and her having refused to do, it seems to me that, given the pleading does not comply with the UCPR and does not on its face disclose any cause of action which has some real prospect of succeeding at the trial, judgment should be given for the solicitor applicants and barrister applicants, together with costs on a standard basis as agreed or assessed. It follows that the plaintiff applicant’s application is dismissed.
 File document 1.
 File document 11.
 File document 9.
 File document 13.
 Submissions for the first, second and fourth defendants at .
 Submissions for the third and fifth defendants at -.
 Giannarelli v Wraith (1988) 165 CLR 543 at 560 per Mason CJ.
 Submissions for the third and fifth defendants at ; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at  to .
 Rogers v Roche (No. 1)  2 Qd R 306 at .
- Published Case Name:
Clare Susan McMahon v Damien Greer, Damien Greer Lawyers, Jacoba Brasch QC, Sarah Dibley and Jeffery Bunning
- Shortened Case Name:
McMahon v Greer
 QDC 101
01 Jun 2020