Rogers v Roche[2015] QSC 272

SUPREME COURT OF QUEENSLAND

1. In this action the plaintiff, Mr Rogers, seeks to re-litigate the assessment of his damages in earlier litigation. 

Background

2. He was successful in an action in this Court arising out of an injury he sustained to his left eye when riding as a pillion passenger on a jet ski driven by his son at Couran Cove Resort on South Stradbroke Island on 29 December 2001.  On 7 September 2007 he received a judgment against the operator of that resort for $593,708.46.^[1]  In assessing the plaintiff’s damages, White J awarded him $130,000 for past economic loss and $350,000 for future economic loss.  Mr Rogers was a solicitor and the economic loss he claimed was based on the effect of the injury on his ability to perform his work in that role.^[2]  White J, in her reasons, referred to there being many speculative elements involved in the assessment of Mr Rogers’ economic loss which she discussed in detail.^[3]  There was no appeal from that decision. 
3. He has now issued proceedings against the solicitors he engaged for the earlier trial alleging that, both during the earlier stage of the original proceedings when they worked on the steps required by the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA stage”) and at the later stage of the litigation of the earlier proceeding, when they took the matter to the trial, those solicitors failed to obtain any or any adequate proofs of evidence from him in respect of his personal injuries and their effect on his capacity to earn income and from other witnesses relating to those issues.  He also alleges that they failed to call evidence from witnesses who should have been called.  In effect he now wishes to reduce the speculative elements of the earlier evidence by calling further evidence than was called for him at that trial. 
4. The defendants have attacked the claim for damages for breach of retainer, negligence and breach of fiduciary duty on two bases.  The first is that it is an abuse of process which seeks to re-litigate the earlier decision.  The second basis is that the new proceeding is not maintainable as a matter of law by virtue of the “advocates’ immunity”.^[4]
5. Mr Rogers’ case as pleaded is that, if the first and second named defendants, the partners of the firm originally retained by him, Shine Roche McGowan later known as Shine Lawyers, had properly performed their obligations pursuant to their retainer and/or if each of the defendants, including the third named defendant, the solicitor who acted directly for him in the litigation stage of the earlier proceedings, had exercised reasonable care and skill in the provision of their legal services or if each of them had discharged their obligations as fiduciaries then he would have obtained damages for economic loss by settlement at the PIPA stage or alternatively at the litigation stage or by judgment in accordance with the most favourable scenario expressed in a joint experts’ report of $1,569,325.  The joint experts’ report was one relied on at the earlier trial.  Mr Rogers also pleaded that the amount of $480,000 should be deducted from that amount, referable to her Honour’s assessment at trial of his economic loss. 
6. A further aspect of the claim pleaded by the plaintiff against the former solicitors is that they were not entitled to the payment of fees amounting to $192,111.63 because of the terms of their retainer.  That part of the case alleges that the agreement was an entire agreement that was terminated other than as specified by the terms of the agreement and without prior notice.^[5]  The defendants accept that I should not strike out that aspect of the “fresh” statement of claim with the exception of an allegation in para 67(c) that the first and second defendants were not entitled to any payment for their fees and disbursements by reason of their failure to perform the retainer.  Mr Holyoak for the defendants argued that the allegation in para 67(c) also impermissibly sought to re-litigate the earlier decision of White J and canvassed issues not maintainable as a matter of law by virtue of the advocates’ immunity.
7. The defendants also criticised the pleading for failing to set out a causal connection between the breaches of the retainer or the negligence alleged and the likelihood that a better result would have been obtained before White J.  Another criticism relates to an allegation by Mr Rogers that the defendants’ firm delegated the performance of the retainer to a company called Murshine Pty Ltd.  The allegations include that the solicitors employed by Murshine were not suitably qualified or experienced and that the partners of the firm, then Shine Roche McGowan, the first two defendants to this proceeding, failed to supervise or manage the performance of the retainer.  In doing so, it was argued, they lost the benefit of the advocates’ immunity because they were not themselves doing the work.  The defendants’ case was that such a delegation was not a breach of the retainer by the firm but the performance of the work by the firm through its own employees or hired employees.
8. Further, the breaches of fiduciary duty alleged were said by the defendants again to be defectively pleaded because there was no explanation of any connection between the breach alleged and the loss claimed.  Even if there was such an explanation, the only connected claim was the loss claimed in para 56 of the fresh statement of claim which still required a direct collateral challenge to the verdict of White J.  This was said to be made clear by para 6(c) of the reply which alleges that the defendants should not be heard, by reason of their breaches of fiduciary duty, to maintain that the plaintiff would not have been awarded the damages and interest claimed by him.

Abuse of process

9. In arguing that the proceeding was an abuse of process, the defendants relied upon the decision of the Court of Appeal in Lewis v Hillhouse.^[6]  There, the former Queensland Police Commissioner attempted to sue his former solicitors, alleging that, in his criminal trial, a ground of appeal related to the alleged wrongful admission by the trial judge of evidence of systemic corruption within the Queensland Police Force was abandoned without his consent, contrary to his instructions and without affording him the opportunity to ensure that that ground was presented to the Court.  The learned primary judge in that case concluded that the argument involved a collateral attack on Mr Lewis’s criminal convictions where those convictions had been upheld on appeal so that the civil proceeding was an abuse of the process of the Court. 
10. In that decision Keane JA, with whom the President and Wilson J agreed, dealt extensively with the law relating to abuse of process in this context.  It is useful to set out his Honour’s reasons in detail:^[7]

“[10] It is apparent from these paragraphs of the appellant's pleaded case that, notwithstanding the protests in the appellant's submissions on appeal, it is indeed at least a part of the appellant's case that the neglect of duty with which the appellant now seeks to charge the respondents caused the appeal to fail with the result that the appellant's convictions were not quashed. This part of the appellant's case is necessarily concerned to establish that the appeal would have succeeded and his conviction would have been quashed had the evidence admission point not been abandoned. That is clearly a collateral attack on the decision of the Court of Appeal and of the decision of the jury. Strong reasons of public policy support the view that such an attack is an abuse of process. On appeal the appellant did not seek to argue otherwise.

[11] As I have said, the appeal was focused on that part of the appellant's case concerned to assert that the appellant lost ‘the prospect’ or ‘the chance’ of a successful appeal, and a fair trial. This narrower focus is said to avoid the objection that the appellant's action is a collateral attack on the convictions.

[12] In my respectful opinion, however, this way of formulating the appellant's case is confronted by two obstacles. The first is that the public policy against collateral attack on a judgment is also offended by the prosecution of a claim that an earlier decision which has not been set aside is likely to have been wrong so as to found a claim for unlawfully inflicted damage. The second obstacle is that the principles which permit the recovery of damages for loss of a chance or loss of an opportunity have no application here. If the appellant cannot show that he remained wrongly convicted because the evidence admission point was not pressed on his behalf, he was not adversely affected by reason of the point not being taken. In short, unless the appellant can show that he remained wrongly convicted, he cannot show that he has suffered any loss at all.

The scope of public policy

[13] As to the first of these points, because the evidence admission point was not pursued, we are not here concerned with the immunity of an advocate from civil action in relation to the conduct of litigation. The legal rationale of that immunity is, however, relevant for present purposes. The authorities show that the immunity is a manifestation of a more fundamental public policy in favour of public confidence in the administration of justice and finality in litigation. That public policy precludes a final decision which has not been set aside being ‘called into question’ in subsequent proceedings. Thus in Giannarelli v Wraith Mason CJ said that it was unacceptably ‘destructive of public confidence in the administration of justice’ to permit ‘litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation . . . If the plaintiff were to succeed, [that]
. . . would undermine the status of the initial decision.’ (emphasis added)

[14] In the same case Wilson J said:

‘The situation is not to be compared with a case where an appeal is allowed, a decision set aside and a re-trial ordered. Such a course of events merely portrays the normal course of appellate review. It is altogether different where a disappointed litigant institutes a civil proceeding in a court of co-ordinate jurisdiction with a view to proving that the original decision was wrong by reason of counsel's negligence. If the negligence action succeeds, then the original decision, notwithstanding that it may have been affirmed on appeal, is necessarily tarnished by the later inconsistent decision. Yet nothing can correct the record or interfere with the original judgment. Furthermore, the result will have come about without the successful party to the original action being a party to the negligence action, which will fall to be determined in his or her absence. These situations clearly have a capacity to bring the administration of justice into disrepute . . .’ (emphasis added).

To similar effect, Dawson J said:

‘To allow the courts to be used to undermine [the court's] decision in other proceedings is clearly not in the public interest.’

[15] In Rogers v The Queen Deane and Gaudron JJ (with whom Mason CJ agreed), in a passage cited with approval in the joint judgment in D'Orta-Ekenaike v Victorian Legal Aid, referred to the Latin maxim res judicata pro veritate accipitur as expressing the need, as a matter of public policy which is part of the common law, for ‘decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct’ (emphasis added). Deane and Gaudron JJ went on to say: ‘That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice’.

[16] In the House of Lords in Arthur J S Hall & Co v Simons, Lord Hoffman addressed ‘the possibility of apparently conflicting judgments which could bring the administration of justice into disrepute’ in terms which comprehend arguments of the kind advanced by the appellant in the present case. His Lordship said:

‘A client is convicted and sent to prison. His appeal is dismissed. In prison, he sues his lawyer for negligence. The lawyer's defence is that he is not negligent but that, in any case, the client has suffered no injustice because whatever the lawyer did would not have secured an acquittal. In seeking to establish the latter point, the lawyer may or may not be able to re-assemble the witnesses who gave evidence for the prosecution. The question of whether the client should have been acquitted is then tried on evidence which is bound in some respects to be different, before a different tribunal and in the absence of the prosecution. The civil court finds, on a balance of probability, that the lawyer was negligent and that if he had conducted the defence with reasonable skill, the client would have been acquitted. Or perhaps that he would have had a 50 [per cent] chance of being acquitted. Damages are awarded. But what happens then? Does the client remain in prison, despite the fact that a judge has said there was an even chance that he would have been acquitted? Should he be released, notwithstanding that the prosecution has had no opportunity to say that his conviction was correct? Should it be referred back to the Court of Appeal, and what happens if the Court of Appeal, on the material before it, takes a different view from the civil judge? The public would not understand what was happening. So it was said that to allow clients to sue for negligence would allow a "collateral challenge" to a previous decision of another court. Even though the parties were different, this would be contrary to the public interest.’

[17] The public policy favouring the preservation of confidence in the due administration of justice is, in my view, engaged by claims which are apt to diminish that confidence by undermining the status of the original decision which has not been set aside. To contend that the person adversely affected by that decision should be entitled to compensation on the footing that the decision is not ‘incontrovertible’, but likely to have been wrong, is to offend public policy in this regard. The pursuit of that contention has ‘a capacity to bring the administration of justice into disrepute’, at least while the earlier convictions stand.

[18] In Arthur J S Hall & Co v Simons, the House of Lords rejected the concept of an advocate's immunity from suit, but did so on the clear basis that the advocate's immunity was not necessary to preserve the public interest in preventing litigation which called into question the correctness of earlier decisions of the courts because the power of the courts to prevent abuse of their process was a sufficient means of achieving that result. Further in this regard, Lord Steyn and Lord Browne-Wilkinson expressly said that an action for damages for negligence against an advocate in criminal proceedings may be allowed to proceed only where the conviction has been set aside. This is because it is only when the conviction has been set aside that the risk of conflicting judgments capable of bringing the administration of justice into disrepute can be avoided.

[19] The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in D'Orta-Ekenaike v Victorian Legal Aid identified that public confidence in the administration of justice requires that justiciable controversies, once finally decided, are ‘not to be reopened except in a few narrowly defined circumstances’ and reiterated that this was a fundamental consideration of public policy. In concluding that the advocate's immunity was fully supported by this consideration, rather than being rendered superfluous by it, their Honours in the majority in the High Court, differed from the conclusion of the House of Lords in Arthur J S Hall & Co v Simons. It is clear, however, that both decisions have affirmed the continuing and fundamental importance of the public policy which preclude a litigant from ‘calling into question’ the outcome of earlier criminal proceedings while the final result, ie the conviction, stands.

[20] In my opinion public policy, as elaborated in the authorities to which I have referred, precludes the prosecution of the appellant's action, even if it be limited to the claim that the appellant lost only the ‘prospect’ of a successful appeal and subsequent acquittal, so long as the convictions stand. The making of such a claim necessarily calls into question the justice of the appellant's convictions.”

11. I have extracted those passages in full because they are relevant not only to the argument that these proceedings are an abuse of process but also to the argument relating to the advocates’ immunity.
12. Here the pleading does not clearly allege that the plaintiff lost the chance of obtaining a higher award of damages by the defendants’ alleged breach of their retainer, negligence and/or fiduciary duty.  Mr Rogers asserts in para 56 of the fresh statement of claim that he “would have obtained damages for economic loss (by settlement at the PIPA stage or, alternatively, at the Litigation stage or in the further alternative by judgment) in accordance with the most favourable scenarios expressed in the joint experts’ report”. 
13. That allegation makes it more clear that this is a direct attack on the conclusions and judgment in the earlier proceedings but, even if the pleading were amended to allege merely the loss of a chance to do better, as Mr Cavanagh SC for the plaintiff submitted could be done, Keane JA’s reasoning establishes that this proceeding would still be a collateral attack on the original decision that would impermissibly undermine its status. 
14. His Honour went on in Lewis v Hillhouse^[8] to discuss the situation that might exist if the pleadings there had been confined to a claim for the loss of the chance of a successful appeal and retrial and concluded at [27]:

“In my opinion, the narrow case advanced by the appellant on appeal falls on the horns of a dilemma. To the extent that the appellant does not assert that the evidence admission point, if pressed, would have been effective, he does not accept the minimum burden required by law to show that he suffered the loss of anything of value. To the extent that he seeks to show the evidence admission point would have been effective, he plainly seeks to mount a collateral attack on his convictions without having first been successful in having those convictions set aside.”

15. For the reasons expressed by his Honour my view is that this proceeding is doomed to failure, with the exception of the claim for the costs to which I have previously referred, which is not the subject of this application.  It is disingenuous to argue that the proceeding does not collaterally attack her Honour’s earlier assessment of damages on the basis that the plaintiff may establish that he would have achieved a better settlement at the PIPA stage.  The desired result would still be that there would be conflicting judgments about the plaintiff’s loss capable of bringing the administration of justice into disrepute.
16. The public policy behind the rule is that it is in the public interest that there be an end to litigation.  The attempt to artificially isolate what may have happened at an earlier stage of the litigation under the statutory procedures required by PIPA ignores the true reason for the rule. The PIPA proceedings, while they precede the litigation, also remain an integral part of the overall process, determining when proceedings in court should normally commence or continue and having very significant consequences on the costs of the litigation and the evidence that may be led at it; see, eg, ss 4 and 42-56 of that Act.
17. Nor does the argument that this proceeding is not one that suggests her Honour’s assessment was wrong attract me.  Mr Cavanagh SC for the plaintiff argued that, if the proper evidence had been presented, then the plaintiff would have an opportunity of obtaining a better result and that he has lost that.  That, necessarily, in my view, impugns the result in the earlier proceeding and is properly described as an abuse of process because it is designed lead to conflicting judgments on the question of the proper award of damages that Mr Rogers should have received.   

Alleged breach of fiduciary duty

18. The pleading that the defendants breached fiduciary duties that they owed the plaintiff was supported because the task of assessing loss for a breach of such a duty may be approached differently from a normal negligence claim.^[9]  The assessment can be based on loss at the time of the trial with the full benefit of hindsight. 
19. That part of the pleading was also attacked on the basis that there was no causative explanation in the pleading linking the alleged breaches with the loss claimed still as the under-compensation alleged of White J’s assessment of damages.^[10]  The point was also made that the rule permitting full restitution with the benefit of hindsight only applies to breaches of a fiduciary character which engage the conscience of the fiduciary and which entitle the beneficiary to relief by way of equitable compensation unrestrained by analogous common law principles, for example, causation. 
20. The most telling point made in this context was, however, that even if the pleading had alleged breaches of a fiduciary character linked causally to the loss claimed the result would still be a direct collateral challenge to the damages assessed by White J and, therefore, an abuse of process.

Advocates’ immunity

21. For similar reasons I have also reached the view that the relevant parts of the pleading should be struck out because they infringe the rule relating to advocates’ immunity.  Mr Cavanagh submitted that the immunity’s reach had not yet been clearly determined.  That may well be true, as evidenced by the recent grant of special leave in Jackson Lalic Lawyers Pty Limited v Attwells,^[11] which deals with the application of the advocates’ immunity to negligently advised settlements in contradistinction to judicial proceedings determined upon the merits. 
22. Mr Cavanagh also relied on the statement by Beazley JA in Symonds v Vass^[12] that “the content and extent of the principle of advocate’s immunity and its application in a particular case is both problematic and troubling. This is particularly so if the immunity extends to the case of an omission, such as a failure to prepare the evidence necessary for trial, or the failure to give consideration to the correct parties to a claim.”
23. Nevertheless, in a case of this nature and on the current state of the law, where the matter has proceeded to an unchallenged determination on the merits, my conclusion is that the immunity does extend to the defendants’ work, whether as partners of the firm or as the solicitor engaged to perform the particular work.^[13]  Even if the third named defendant was engaged to do the work through a service company, that particular feature of this case does not seem to me to require a different conclusion about the scope of the immunity.  One might as well argue that the first two named defendants would lose their immunity because they engaged the assistance of a barrister to help them to conduct the litigation. 
24. Nor does the fact that the allegations of negligence include the PIPA stage of the proceedings provide a reason why the immunity should not extend to that stage.  That is because of the close inter-relationship between the PIPA stage of the proceedings and the trial stage to which I have referred previously and because the result would still be that there would be potentially conflicting judgments on the question of the proper award of damages to Mr Rogers. 
25. As the law presently stands, absent a re-opening of the issue of whether advocates should be immune from suit, I am satisfied that the relevant parts of the pleading should also be struck out because they are inconsistent with the immunity. 

Conclusion and orders

26. Consequently I shall strike out those parts of the pleading that challenge the assessment of damages in the previous litigation but leave in the allegations apparently relevant to the claim for repayment of legal costs.  On that basis I propose, subject to further submissions about the form of the order and costs, to strike out paras 4-9, 13(c), 24-27, 34-59, 67(c) and 72 of the fresh statement of claim and give judgment for the defendants in respect of the claim in para 1 of the prayer for relief.