Trouble with the advocates’ immunity – where does it start and stop? … Do a series of faulty statements of claim attract the immunity? … Full Feds to the rescue … Emilie Lentz reports
Justices John Mansfield, Antony Siopis and Steven Rares allowed an appeal by Douglas Sims, and remitted his case back to the beginning so it could continue on its agonising “progress”.
The primary judge, Michael Barker, had erred in finding that the case was not reasonably arguable and should be summarily dismissed.
At issue was the legal work provided to Sims by Patti Peng Sa Chong, particularly the statements of claim filed in the Supreme Court of WA. After five failed attempts to “perfect” the statement of claim, it resulted in summary dismissal of the case by the registrar.
The primary judge found that the drafting of the SOC was work done out of the court, which lead to a decision affecting the conduct of a case in court, and so Chong’s work was protected against a claim of negligence by the advocates’ immunity.
Chong was engaged to bring an action against medical company Suda Ltd, claiming $3.8 million over an agreement with Sims to develop two strategies and to sell two trademarks and a provisional patent.
Allegedly the agreement was that the trademark and patent rights would be transferred to Suda and payment would be agreed upon at a later date. Sims said that in 2007 Suda proposed payment and an option to purchase shares in the company or a company called BPAG. This was held not to be a contract given the imprecision and lack of certainty.
The registrar found that the performance of transferring his rights had been done by Sims at a point where there was no agreement about consideration and that he had not performed at the request of Suda.
The registrar struck out the fifth statement of claim, suggesting that remedies could be sought elsewhere, such as quantum meruit in the nature of a restitutionary claim.
A final chance to re-plead was offered, though it was advised that if this statement of claim failed to present an arguable case, the action would be dismissed.
Sims terminated Chong’s retainer and sought to handle the matter himself, submitting yet another statement of claim that failed to present an arguable case. The action was struck out and an appeal was dismissed.
Sims then commenced action against Chong claiming breach of contract, breach of fiduciary duty, negligence, acting unconscionably and engaging in misleading and deceptive conduct by asserting competence to act for when this was not the case. He also claimed that Chong had held out that she had expertise in intellectual property litigation when she did not.
The primary judge said that Chong had engaged barristers to draft the statements of claim. Justice Barker also held that Sims sought, in effect, to relitigate the issue of whether an enforceable promise had been made.
The primary judge found that creating the statement of claim was work done outside the court room which led to a decision affecting the conduct of the case. It was also held that whether it be a statutory or common law cause of action, the advocates’ immunity still applied.
The issue on which the Federal Court appeal turned was whether summary dismissal based on the advocates’ immunity was appropriate. More specifically, it concerned at what point to “draw the line” for the application of the immunity.
The registrar’s findings in the WA Supremes were that there was no reasonably arguable case revealed in the statement of claim. Furthermore, the decision to strike out the action was held not necessarily to have been a judicial determination in that there was no “quelled controversy” following the hearing of submissions and evidence.
In this way, striking out the proceedings was more accurately characterised as an interlocutory injunction. For this reason, the public interest was not held to “enliven immunity”, although here this was not the primary issue affecting immunity.
Rather, it was more relevant to determine whether the immunity from suit would apply to statutory as well as common law causes of action. The appeal judges thought that it would, although this has not been finally determined by the High Court.
The Full Feds found that it was unduly narrow to characterise Sims’ claims as all falling within the shadow of immunity.
Some of his arguments attracted the immunity, however misrepresentations and potential unjust profiting by Chong were relevant matters outside the scope of immunity.
As such, the advocates’ immunity did not cover the entirety of Sims’ claims in a way that made it appropriate for summary dismissal.
The matter was remitted for reconsideration by Barker.