Collins v Metro North Hospital and Health Service & Ors

The plaintiff alleged that two barristers, the second and third defendants, had engaged in conduct which caused detriment to him and meant he had an action in personal injuries against both. In examining the claims, his Honour extensively considered the scope of duties owed by barristers to opposing litigants both in court and during conferences. He concluded that the allegations were unfounded.

Sullivan J

28 August 2023

The plaintiff’s primary claim arose from medical services delivered by the first defendant to him. [1]. As against the second defendant, the plaintiff complained about the second defendant’s alleged conduct as counsel during the hearing of two interlocutory applications in an unrelated proceeding. [3]. The plaintiff alleged that the second defendant owed him a tortious duty of care regarding the manner in which he conducted the applications. [5]. The plaintiff asserted that, by opposing the plaintiff’s applications for an urgent mediation the second defendant breached his duty of care and caused the plaintiff a loss of life expectancy, uncertainty, anxiety, and depressive episodes. [6]. The third defendant was counsel for the first defendant in the pre-commencement period relevant to the current proceeding and the allegations against him arose from his alleged conduct in the compulsory conference prior to its commencement. [7]. Essentially, the plaintiff alleged that he was owed a tortious duty of care in relation to how that compulsory conference was conducted by the third defendant (especially since the third defendant and the first defendant knew at the time of the conference that the plaintiff had advanced cancer and mental health disabilities). [8]–[9].

Does a barrister, appearing in court for one party, owe a duty of care to the opposing party?

It is generally recognised that, in the context of contentious and hostile litigation, no duty of care will be owed by a legal representative of one party to the opposing party: see Lee v Abedian [2017] 1 Qd R 549 and The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307. There are exceptions to the general rule, but they are very specific, and the current matter did not fall within such categories. [63]. Relevantly, in the latter case, McPherson JA clarified that no such duty would arise in adverse litigation not only with regards to the legal representative, but also the litigant itself.

Here, his Honour noted that the very nature of litigation results in each litigant focusing on their own best interests:

“This may include acting in a robust way which causes offence or distress to an opposing party. Ultimately, if that conduct is sought to be called into question then it is not by the imposition of a common law duty of care”. [73].

Litigants already have recourse to safeguards against inappropriate conduct including seeking assistance from the Legal Services Commission, officers of the Court, or various other causes of action depending upon the circumstances of the case. [73].

Here, it was not the case that the tortious duty of care pleaded against the second defendant was viable. [74]. In any event, the barrister would be immune for conduct in court by operation of advocates’ immunity, which extends to scenarios where counsel are sued by an opposing party: see Love v Robbins (1990) 2 WAR 510, 517 per Malcolm CJ. [89].

Is a duty of care (in tort) owed by a barrister to the other party to a pre-action conference under the Personal Injuries Proceedings Act 2002?

Albeit PIPA conferences take place before the institution of court proceedings, they are still properly regarded as part of the litigation process. They are a necessary, adversarial step. [122]. His Honour held that the reasoning above regarding the second defendant also applied to the case as formulated against the third defendant. [118]. Therefore, it was not possible for the tortious duty of care pleaded against the third defendant to be maintained. [124].

Did a breach of the Model Litigant Rules (in the absence of any contract that they would be adhered to) give rise to any claim for damages?

It was not the case that a separate legal duty arose from the Model Litigant Rules in the current matter. The courts have previously observed that the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants: see Malone Obh of Western Kangaulu People v State of Queensland (2021) 287 FCR 240 at [217]. It was plainly the case here that no contract had been entered into between each of the third defendant and first defendant on the one part, and the plaintiff on the other part, to act in accordance with the principles, and for that matter, nor had there been any communication between the plaintiff and the third defendant concerning them prior to the conference. [135].

Did a breach of the Barristers’ Conduct Rules give rise to any claim for damages?

Similarly, the Barristers’ Conduct Rules did not provide an avenue for any claim for damages. That is because there is no duty owed by a barrister to his or her client’s opponent resulting from breaches of the Bar Rules which would support any action. [136].

Did a breach of s 38(6) Personal Injuries Proceedings Act 2002 give rise to any claim for damages?

Finally, his Honour also clarified that non-compliance with s 38(6) Personal Injuries Proceedings Act 2002 does not provide any private right to compensation against an opponent or the opponent’s legal representative, noting:

“[i]t is untenable to suggest that Parliament intended to create a proliferation of private statutory causes of action for compensation which would then be able to be litigated in parallel to the primary causes of action which the scheme sought to promote settlement in the first place”. [139].

Disposition

Pursuant to r 171 UCPR the paragraphs of the Amended Statement of Claim containing the allegations against the second and third defendants were struck out without leave to re-plead.

A Jarro