Wood v Robertson O'Gorman Solicitors Pty Ltd
[2022] QSC 24
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- Unreported Judgment
- Appeal Determined (QCA)
- Wood v Robertson O'Gorman Solicitors Pty Ltd[2022] QSC 24
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Wood v Robertson O'Gorman Solicitors Pty Ltd[2022] QSC 24
Wood v Robertson O'Gorman Solicitors Pty Ltd[2022] QSC 24
SUPREME COURT OF QUEENSLAND
CITATION: | Wood v Robertson O'Gorman Solicitors Pty Ltd [2022] QSC 24 |
PARTIES: | IAN ANDREW WOOD (Plaintiff) v ROBERTSON O'GORMAN SOLICITORS PTY LTD (Defendant) |
FILE NO/S: | BS 9403 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 4 March 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 February 2022 |
JUDGE: | Bowskill SJA |
ORDERS: | 1. The proceeding is dismissed under r 293 of the Uniform Civil Procedure Rules 1999. 2. The plaintiff pay the defendant’s costs of the proceeding. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the plaintiff claims $3,000,000, pleaded in the statement of claim as a claim for loss and injury suffered as a result of “professional misconduct” within the meaning of s 419 and s 420 of the Legal Profession Act 2007 (Qld) – where the defendant applies for summary dismissal of the plaintiff’s claim on the basis that he has no standing to bring a proceeding for “professional misconduct” – whether the deficiencies in the claim and statement of claim could be remedied by amendment Legal Profession Act 2007 (Qld) ss 419, 420, 428, 447, 463 Uniform Civil Procedure Rules 1999 (Qld) r 293 Badenach v Calvert (2016) 257 CLR 440 Business and Personal Solutions Pty Ltd v Witherspoon [2022] QSC 10 Chen v Australian & New Zealand Banking Group Ltd & Anor [2001] QSC 43 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 |
COUNSEL: | The plaintiff appeared for himself A O'Brien for the defendant |
SOLICITORS: | The plaintiff appeared for himself Robertson O'Gorman Solicitors for the defendant |
- [1]In August 2018, the plaintiff, Mr Wood, retained the defendant, Robertson O'Gorman Solicitors (ROG), to act for him in relation to a charge of assault occasioning bodily harm. On 15 October 2018, the plaintiff was arrested and charged with two further offences, obstructing police and wilful damage, and retained ROG to act for him in relation to those charges as well. Mr Kurz of ROG was assigned as the solicitor with day-to-day carriage of Mr Wood’s criminal matters. As the correspondence in evidence reveals, the relationship between client and solicitor deteriorated significantly.[1] On 26 November 2018, ROG wrote to Mr Wood, giving notice of their intention to withdraw as solicitors on the record.[2] Mr Wood retained another solicitor and then eventually represented himself.
- [2]By his Claim filed in this court on 17 August 2021, Mr Wood claims $3,000,000 from ROG. The Claim does not comply with r 22(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), as it does not state the nature of the claim made or relief sought in the proceeding. To simply demand a sum of money is not sufficient.
- [3]In any event, as articulated in the attached Statement of Claim, Mr Wood’s claim purports to be one for “loss and injury” suffered as a result of what is alleged to have been “professional misconduct” on the part of Mr Kurz, relying upon the definition of that term in ss 419 and 420 of the Legal Profession Act 2007.
- [4]The Statement of Claim includes allegations that:
- (a)Mr Kurz “consistently and intentionally mislead the plaintiff with relation to the laws surrounding the charge [ROG] had been contracted to defend him against” (para 5);
- (b)Mr Kurz “failed to respond to numerous questions from the plaintiff with regard to the laws surrounding the charge…” (para 6);
- (c)Mr Kurz “failed to obtain evidence material to the plaintiffs (sic) defence of the charges, including but not limited to CCTV footage of the plaintiff in custody…”, which “not only damaged the plaintiff’s possibility of being successful at trial but also damaged his ability to recover costs in a malicious prosecution claim” and also failed to obtain “a full brief of evidence” (para 7);
- (d)Mr Kurz “failed to act in the best interests of the plaintiff” (para 9); and
- (e)Mr Kurz “attempted to fraudulently convince the plaintiff to plead guilty to criminal acts that he was, in fact, innocent of” (para 10).
- (a)
- [5]The plaintiff alleges that, as a result of the defendant’s professional misconduct, he has suffered loss and injury, which is particularised as:
“Financial Loss (past and future) based on previous tax returns, expenditure associated with self representation (receipts for copying, transport, transcripts, funds paid to [ROG] for defence) $120,000.00
Mental Damage (depression, anxiety, loss of relationships, cost of ongoing psychiatric treatment) $1,000,000.00 (based on relevant case law and psychiatric assessment)
Aggravated Damages (humiliation, loss of dignity, shame) (based on relevant case law and psychiatric assessment) $680,000.00
Special Damages (damage to malicious prosecution charge) (based on relevant case law) $1,200,000.00
Interest $408,271.35 (court interest calculator from 15/10/2018 -17/08/2021)
Total - $3,408,271.35.”
- [6]A defence was filed on 28 January 2022. The allegations are strenuously denied.
- [7]It is not in dispute that:
- (a)the plaintiff’s retainer of ROG was limited to acting for him in relation to the criminal charges referred to above;
- (b)although Mr Kurz, of ROG, provided advice to the plaintiff in relation to those charges, the plaintiff did not accept or act on that advice;
- (c)whilst ROG were acting for the plaintiff, he did not enter a plea of guilty to any of the charges; and
- (d)ROG did not obtain a brief of evidence whilst it was acting for the plaintiff; but the plaintiff did obtain a brief of evidence not long after ROG ceased to act.
- (a)
- [8]On 9 February 2022, Mr Wood filed an application seeking to join Mr Kurz and Mr Rogers, one of the directors of ROG, as parties to the proceeding.
- [9]On 15 February 2022, ROG filed an application seeking orders:
- (a)for the summary dismissal of the proceeding, under r 293 of the UCPR;
- (b)alternatively, striking out the statement of claim, under r 171 of the UCPR.
- (a)
- [10]Both applications were heard together. Logically, the defendant’s application is to be dealt with first.
- [11]Rule 293 of the UCPR enables summary judgment to be given for the defendant if the court is satisfied that the plaintiff has no real prospect of succeeding on all or a part of his claim and that there is no need for a trial of the claim. The first question has been formulated as whether there exists a real, as opposed to a fanciful, prospect of success.[3]
- [12]The power under r 293 must be exercised with caution. Although in an appropriate case an opposing party should be “saved from the vexation of the continuance of useless and futile proceedings”, great care must be exercised “to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case”.[4] The jurisdiction to dismiss the plaintiff’s action should only be exercised where the plaintiff cannot improve his position by a proper amendment of the pleading.[5]
- [13]As articulated by the plaintiff in paragraph 10(b) of the Reply, the cause of action he seeks to pursue is “professional misconduct as outlined in paragraph 11 of the claim which refers to sections 419 and 420 of the Legal Profession Act”. This is reflected in paragraphs 10, 14 and 15 of the Statement of Claim.
- [14]It may readily be concluded that the plaintiff has no reasonable prospect of succeeding on the claim as it is pleaded in the Statement of Claim because there is no private cause of action for which an individual has standing to sue for “professional misconduct” within the meaning of ss 419 and 420 of the Legal Profession Act. Those provisions appear in chapter 4 (complaints and discipline) of that Act. Under s 428, a complaint may be made about a legal practitioner. It is the Legal Services Commissioner who deals with such a complaint. A complaint may be dismissed summarily by the Commissioner, for example if it is considered to be vexatious, misconceived or lacking in substance (s 432). Otherwise, there is a procedure to be followed which includes giving the practitioner notice of the complaint (s 437) and the opportunity to make submissions (s 438). The Commissioner has the power to start a proceeding before a disciplinary body (relevantly, QCAT) (s 447 and part 4.9 (ss 452 to 463)), or to dismiss the complaint if satisfied there is no reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct (s 448). Section 463 of the Act expressly provides that part 4.9 (which contains the provisions about proceedings in a disciplinary body such as QCAT) “does not affect any other remedy available to a complainant”.
- [15]If he wished to do so, the plaintiff would be free to make a complaint to the Legal Services Commissioner under the Legal Profession Act. But as presently framed, his claim in this proceeding is misconceived as a matter of law.
- [16]It is therefore appropriate to summarily dismiss the plaintiff’s claim, as it is currently pleaded, on the basis that it has no reasonable prospect of succeeding and there is no need for a trial of the claim, because the claim is misconceived as a matter of law.
- [17]In the course of his oral submissions, the plaintiff indicated that he wished to amend his Statement of Claim, to plead a claim in negligence.
- [18]The defendant opposed any grant of leave to replead, on the basis that:
- (a)Any claim in negligence would be doomed to fail because the plaintiff could not establish factual causation (referring to s 11(1)(a) of the Civil Liability Act 2003) or damage. In this regard, the defendant emphasises that the plaintiff did not rely upon, or act on the advice Mr Kurz gave – so that even if it could be established that such advice was given in breach of the duty of care owed by a solicitor to their client (which is denied), it could not be said the plaintiff suffered any damage as a result.
- (b)In so far as the purported claim includes a claim for personal injury, the proceedings are incompetent in any event because there has been no compliance with s 9 of the Personal Injuries Proceedings Act 2002 (PIPA) and no grant of leave under s 43 of that Act. And, in any event, a claim for aggravated damages cannot be maintained, having regard to s 52 of the Civil Liability Act.
- (c)In relation to the plaintiff’s complaint that ROG failed to obtain the CCTV footage from his arrest [or more particularly, of the cell he was in at a particular police station on 15 October 2018], ROG was not retained in connection with any malicious prosecution proceedings, and the footage was otherwise irrelevant to the charges against the defendant for which ROG was retained.
- (a)
- [19]It is difficult to see how the plaintiff could overcome the matters raised by the defendant and make out a claim for damages for professional negligence against the defendant (or, for that matter, the solicitor Mr Kurz or his supervisor, Mr Rogers). It is uncontroversial that the retainer was limited to acting for the plaintiff in relation to the criminal charges referred to above. It is also uncontroversial that the plaintiff did not rely upon the advice given to him by Mr Kurz in relation to those charges. He rejected the advice. Although the plaintiff complains about ROG’s failure to obtain the full brief of evidence, he was able to obtain that a short time later, in February 2019.[6] The scope of the duty owed by ROG to the plaintiff is set by the terms of the retainer,[7] such that it is also difficult to see how the plaintiff’s complaints about the failure to obtain the CCTV footage from when he was in custody on 15 October 2018, which is unrelated to the charges in respect of which ROG acted for him, could give rise to an actionable claim.
- [20]But there is no claim for damages for negligence presently before the Court, and no pleading of any such claim. Notwithstanding the significant difficulties highlighted, in my view, it would not be appropriate to exercise the power under r 293 of the UCPR to summarily dismiss a claim that has not yet been brought.
- [21]In so far as the plaintiff purports also to include a claim for damages for personal injury, he does face the hurdle that the pre-court procedures under the PIPA have not been complied with. The first of these is the requirement to give a notice of claim, under s 9 of the Act. The plaintiff insisted he had done this, referring to the letter that he sent to ROG dated 2 August 2021 in which he demanded “$12,000,000.00 in damages for the psychological damage, damage to my business, and for the years of psychiatric help I will now be requiring as a result of your professional misconduct”.[8] He also argued that his Claim and Statement of Claim, which are in the form of the “approved forms” under the UCPR, also constitute a notice of claim under s 9 of the Act. Both arguments are misconceived. The letter of demand is not a “notice of claim” for the purposes of s 9. And as the point of the requirements is that they are undertaken before court proceedings may be commenced, the Claim and Statement of Claim cannot meet the requirement either.
- [22]A further submission made by the plaintiff, in this context, was that the time period in which the notice of claim is required to be given, under s 9(3) of the PIPA, had not yet started. Section 9(3)(a) provides that the notice must be given within the period ending on the earlier of two dates, one of which is “the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury”. The plaintiff submitted that, due to the pandemic, he has been unable to get an appointment with a psychiatrist and so has not been able to have the benefit of an assessment to identify his symptoms. Accordingly, he submits, the time period has not even started to run yet. This would seem to suggest another significant hurdle for the plaintiff; namely, the absence of any actionable harm.
- [23]However, regardless of the hurdles that seem apparent, a claim for damages for professional negligence, whether comprising economic loss or damages for personal injury, would be an entirely new claim; not an amended claim. If the plaintiff wishes to pursue this option, that is a matter for him, but he would need to commence a fresh proceeding, with the filing of a Claim and Statement of Claim that comply with the UCPR. In so far as any such claim includes a claim for damages for personal injury, he will also need to ensure the pre-court procedures under the PIPA are complied with.
- [24]In the circumstances, it is unnecessary to deal with the plaintiff’s application for joinder.
- [25]For those reasons, I propose to order:
- (a)the proceeding is dismissed under r 293 of the UCPR; and
- (b)the plaintiff pay the defendant’s costs of the proceedings.
- (a)
Footnotes
[1] See, for example, Mr Kurz’s affidavit, at pp 26-28 (letter of 26 November 2018); p 34 (email of 23 November 2018); p 37 (email of 23 November 2018); p 45 (email of 23 November 2018); p 58 (email of 21 November 2018); p 67 email of 26 November 2018; and affidavit of Wood, exhibit IAW14 (further email of 23 November 2018).
[2] Mr Kurz’s affidavit, at pp 26-28 of the exhibits.
[3]Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 265 [7] (Holmes J (as her Honour then was), Davies JA and Mullins J agreeing).
[4]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130.
[5]Chen v Australian & New Zealand Banking Group Ltd & Anor [2001] QSC 43 at [1]; Business and Personal Solutions Pty Ltd v Witherspoon [2022] QSC 10 at [36].
[6] Mr Wood’s affidavit at [44] and [47].
[7]Badenach v Calvert (2016) 257 CLR 440 at 449-450 [16], [18] and [20].
[8] Mr Kurz’s affidavit, at p 132 of the exhibits.