Woolworths Ltd v Shine Lawyers
[2007] QSC 234
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- Notable Unreported Decision
- Woolworths Ltd v Shine Lawyers[2007] QSC 234
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Woolworths Ltd v Shine Lawyers[2007] QSC 234
Woolworths Ltd v Shine Lawyers[2007] QSC 234
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Originating Application |
DELIVERED ON: | 5 September 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 August 2007 |
JUDGE: | de Jersey CJ |
ORDER: | Application dismissed, with costs to be assessed |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – RETAINER – CHALLENGING RETAINER – where applicant sought order restraining respondent law firm from continuing to act for a plaintiff – where applicant submitted solicitor of respondent firm would need to give evidence at trial of plaintiff’s claim and question of solicitor’s credibility would arise – whether evidence of legal advice would be required at trial – whether any need for Court to restrain respondent firm from continuing to act for plaintiff Workers’ Compensation and Rehabilitation Act 2003 (Qld) Legal Profession (Solicitors) Rule 2007 (Qld), cl 13.4 Chapman v Rogers, ex parte Chapman [1984] 1 Qd R 542, considered Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238, cited Jones v Dunkel (1959) 101 CLR 298, cited Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561, applied |
COUNSEL: | R T Whiteford for the applicant R A I Myers for the respondent |
SOLICITORS: | DLA Phillips Fox for the applicant Shine Lawyers for the respondent |
[1] de JERSEY CJ: The defendant Woolworths Ltd seeks an order restraining the respondent firm of solicitors, Shine Lawyers, from continuing to act as the solicitors for the plaintiff Mr Mervyn Parry. The application is based on the prospect that at the trial of the plaintiff’s claim against the defendant, it will be necessary for the respondent solicitors to give evidence, in the course of which the question of their credibility will arise. The applicant contends that prospect flows from the following circumstances.
[2] The plaintiff was at relevant times employed by the defendant as a butcher. The defendant is a self-insurer under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The plaintiff alleges he sustained three injuries to his back in the course of that employment: an injury to his lower back on 27 August 2003; another lower back injury sustained on 17 September 2003; and a further lower back injury on 19 November 2003. The plaintiff retained the respondent as his solicitors in respect of those matters.
[3] Under the Workers’ Compensation Rehabilitation Act, the respondent requested the defendant to have the plaintiff assessed for permanent impairment. On 17 March 2005, the defendant issued three separate notices of assessment, as follows: in respect of the injury on 27 August 2003, described as a “soft tissue injury lower back”, assessing a 0.67 percent impairment, and offering lump sum compensation of $1,170; in respect of the injury of 17 September 2003, described as “soft tissue injury to lower back”, assessing a 0.67 percent impairment and offering $1,170; and in respect of the injury of 19 November 2003, described as “prolapsed intervertebral disc in lumbar sacral spine with referred pain, treated surgically by discectomy or fusion with resolution of referred pain, but persisting low back pain”, assessing an 8percent impairment and offering $13,970.
[4] From late March 2005, the plaintiff sought and received advice from the respondent. Evidence of solicitors’ diary notes is before me. As advised by letter of 12 April 2005, the respondent suggested the lump sum offered in respect of the first two claims should be accepted, because it would be uneconomic to pursue them. The respondent advised that it would not in any case take on a common law claim in respect of those matters on a speculative basis. But the respondent advised that the third claim was worth pursuing. The plaintiff then instructed the respondent that he wished to make a common law claim in respect of the 19 November 2003 injury.
[5] On 17 March 2006, the plaintiff commenced a proceeding in the District Court claiming damages in respect of that third injury. In its defence of 29 March 2006, the defendant alleged any injury was the “result of constitutional degenerative disc disease and/or events which occurred prior to 19 November 2003 and/or as a result of events which occurred on or after 1 December 2003”. In his reply, the plaintiff contended the defendant was “estopped and precluded” from alleging that the prolapsed disc resulted from events which occurred on either 27 August 2003 or 17 September 2003. The plaintiff then referred to the three notices of assessment, and in para 5 alleged:
“Had the plaintiff ever been informed by the defendant that it would be asserted that the injury giving rise to this claim was occasioned on either 27 August 2003 or 17 September 2003 he would never have accepted the defendant’s offers in respect of those incidents and would not have prosecuted the within claim based solely upon the incident in which he was injured on 19 November 2003.”
The defendant has joined issue in respect of those matters.
[6] Mr Whiteford appeared for the applicant defendant. Relying on the reply, he submitted that it is an essential part of the plaintiff’s case that because of the notices of assessment, the plaintiff believed the defendant could not subsequently, in a common law proceeding in respect of the third injury, assert that that third injury was sustained earlier than 19 November 2003, or that it developed from injuries sustained earlier. He then submitted that because of the plaintiff’s lack of any legal training or experience, the plaintiff must be taken to have relied on legal advice in order to reach that belief. To establish the belief, the plaintiff would therefore need to call evidence from those who gave him legal advice, namely, solicitors and others from the respondent. Otherwise, an adverse inference against the existence of the belief could be drawn on the basis of Jones v Dunkel (1959) 101 CLR 298. Mr Whiteford then relied on the absence of relevant material in the respondent’s solicitors’ diary notes etc. That founded a contention that the credibility of the solicitors as witnesses would arise, were they to say, for argument’s sake, that they advised the plaintiff that because of the way the defendant dealt with those three claims, that is, respectively, it would be barred from later asserting a correlation of any sort between the third claim and the preceding two. Evidence of the legal advice given would, Mr Whiteford submitted, be necessarily central to the case raised by way of reply.
[7] He referred me to relevant authorities, including Kallinicos v Hunt (2005) 64 NSWLR 561 and Chapman v Rogers, ex parte Chapman [1984] 1 Qd R 542. Mr Myers, who appeared for the respondent, also referred to Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238.
[8] Mr Whiteford also referred to cl 13.4 of the Legal Profession (Solicitors) Rule 2007, which provides:
“A solicitor must not unless exceptional circumstances warrant otherwise in the solicitor’s considered opinion:
13.4.1 appear for a client at any hearing, or
13.4.2 continue to act for a client,
in a case in which it is known, or becomes apparent, that the solicitor will be required to give evidence material to the determination of contested issues before the court.
Guidelines
Given the great variety of circumstances in which the problem addressed by Rule 13.4 may arise, it is desirable to provide some guidance as to the reasons for the Rule, and hence as to the proper course in the circumstances which have arisen. The reasons for the Rule include:
(i)the concern that the solicitor’s performance as an advocate or the Court’s assessment of credibility of the solicitor as a witness may be affected by the suggestion that the solicitor’s evidence is tainted by the desire to assist the client, and even by the possibility of avoiding a complaint by the client as to the solicitor’s performance as such in the matters which gave rise to the litigation;
(ii)a concern that the client’s prospects of frank and disinterested advice may be diminished by reason of the solicitor’s involvement in the matters which have led to the litigation.”
[9] In Chapman v Rogers, Campbell CJ said (p 545):
“… For the reason that it is desirable to avoid any suggestion of real or apparent conflict between the duty to the court and the obligation to the client, I consider that it is generally unwise for a solicitor, who is not himself appearing as advocate or as instructing solicitor in court but who is aware that it is likely that he will be called as a material witness (other than in relation to formal or non contentious issues), to continue, either personally or through his firm, to represent the client, if this can be reasonably avoided.”
[10] In Kallinicos v Hunt, Brereton J said (p 582) that:
“The test to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice”.
Brereton J added, and I emphasise, that “the jurisdiction is to be regarded as exceptional and is to be exercised with caution”, and that “due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause”.
[11] Mr Myers submitted that the plaintiff would adequately address the issue raised by the reply and joinder of issue by leading evidence of the three notices of assessment and the respondent’s letter of advice of 12 April 2005: they show that the defendant dealt with the three claims discretely, as did the respondent in its advice to the plaintiff. Mr Myers submitted there would be no need to go further, in order to avoid any risk of the court’s drawing an inference adverse to the plaintiff.
[12] One should look carefully to the content of the reply. The estoppel is said to arise from the issuing of the three notices of assessment (para 4), and the assertion in para 5 is that “had the plaintiff ever been informed by the defendant that it would be asserted that the injury giving rise to this claim was occasioned on either 27 August 2003 or 17 September 2003 he would never have accepted the defendant’s offers in respect of those incidents and would not have prosecuted the within claim based solely upon the incident in which he was injured on 19 November 2003”. That obviously could be addressed by evidence from the plaintiff. But Mr Whiteford effectively submitted the plaintiff’s evidence would have to be supplemented by evidence from the lawyers.
[13] He submitted there was a “huge gulf” between the notices of assessment pleaded in para 4 of the reply, and the belief raised by para 5; and that that “gulf” must be filled by the content of the legal advice given to the lay plaintiff by the respondent. It is true that the advice reflected by the diary notes and the letter does not deal with this question. But accepting for the moment the accuracy of those notes, I do not regard that feature as necessarily rendering untenable the allegation in para 5 of the reply.
[14] That is because legal advice should not have been necessary to lead the plaintiff to the position asserted in that paragraph.
[15] The plaintiff knew that three separate claims had been made, in respect of three separately occasioned injuries, and that they were processed separately, leading to the issue of three separate notices of assessment. On advice, the plaintiff dealt differentially with those notices of assessment. Had the plaintiff known that the defendant may seek to ally the third claim with the earlier two claims, then as a matter of common sense he would have been reluctant to compromise those earlier claims by accepting the comparatively small amounts offered, because it could court a suggestion he had thereby accepted compensation for the third claim as well.
[16] The position raised in para 5 of the reply does not depend on the preceding receipt of expert legal advice: it is consistent with common sense and the ordinary experience of life.
[17] Furthermore, why should one doubt the reliability of the diary notes, in suggesting no advice directly bearing on para 5 was given? Paragraph 5 raises a hypothetical situation about which there was then presumably no perceived need for advice. Mr Whiteford’s approach really assumed the solicitors would have to give evidence of advice not recorded in the diary notes. I do not consider that assumption justified. The better assumption is that the diary notes are accurate and comprehensive.
[18] I consider the arguably critical aspect is that the three claims were presented, and dealt with, completely separately. The plaintiff knew the defendant had processed them in that way. Had the defendant then said to the plaintiff that it regarded his third injury as part of the injury embraced in the earlier claims, the plaintiff would as a matter of ordinary experience have recognized a risk, in compromising the earlier claims, of its being suggested later that the parties had thereby “signed-off” on compensation for all injury and disability. It is that which arguably precludes the defendant from now saying that the third claim was encapsulated within, or grew out of, one or both of the earlier two.
[19] For these reasons, I am not satisfied that it will be necessary, in order properly to advance the plaintiff’s interests in the context of the reply, for the relevant representatives of the respondent to give evidence at the trial; and the matter was conducted on the basis they will not be giving evidence.
[20] The application is therefore dismissed, with costs to be assessed.