Barristers duty of care & immunity from suit

Amos v Wiltshire [2010] QDC 138

 

The background was the plaintiff’s unsuccessful claim and appeal against Monsour Pty Ltd and others in respect of a costs order following a fraud allegation. The fraud allegation was rejected as ‘unsustainable’.

The plaintiff’s claim against his barrister in the above proceedings was on the basis that the barrister had given verbal advice there were good prospects for success with respect to fraud, and on that basis he went ahead with the court proceedings to be drawn. He directly engaged the barrister and paid $1,000 for this.

The barrister’s evidence was that he was instructed to draw the proceedings, which he said were deeply problematic, highly speculative and had very limited prospects of success with respect to the fraud, although in respect of his ethical duties, he thought there was a bare, but arguable basis to make the fraud claim. His evidence was that he verbally advised the plaintiff of this and further recommend investigations and for the plaintiff to pay for a separate written advice on prospects, but the plaintiff did not want to do that. He knew the plaintiff from previous dealings and considered him to be an intelligent, sophisticated litigant and accordingly proceeded to draw the court proceedings.

Neither party had a diary note of the advice or discussion. Subsequently a discussion was had with a solicitor, Mr Collinson (whose firm was described as having a multi-pronged relationship with the plaintiff) and the barrister to the effect there were good prospects of success. It was this evidence which swayed his Honour Samios DCJ in the plaintiff’s favour in the absence of any substantiating diary note.

Duty of Care

[45] A barrister’s duty of care is to “exercise reasonable care and skill in the provision of

professional advice. The standard of care and the skill is that which may be

reasonably expected of practitioners” (Heydon v NRMA Ltd (2000) 51 NSWLR 1 at

53 per Malcolm A-JA and also per McPherson A-JA at 117).

[46] In my opinion the defendant’s conduct fell short of what may reasonably be

expected of practitioners.

[47] That is because the defendant did not properly understand the requirement of the

plea of fraud as set out in the decision of Wentworth v Rogers No 5 (1986) 6

NSWLR 534. If the defendant had appreciated those requirements, he should have

understood as Brabazon DCJ found, there was no proper basis to make the

allegations in the claim and statement of claim. Further, the defendant did not warn

the plaintiff of these requirements and the defendant did not warn the plaintiff of the

possible adverse consequences of making the allegations. Finally, the defendant

would not have advised the plaintiff the prospects of success were good.

His Honour further considered Rules 37 and 38 of the 2007 Barristers Rule in respect of pleading allegations of fraud and found both had been breached.

Barristers Immunity

Ordinarily barristers have immunity from suit from work which is intimately connected with the conduct a case in court:

Coshott v Barry (2009) NSWCA 34

Dansar Pty Ltd v Pagotto (2008) NSWSC 112

D’Orta-Ekanaike v Victoria Legal Aid (2005) 223 CLR 1

Gianerelli v Wraith (1988) 165 CLR 543

May v Mijatovic (2002) WASC 151

Saif Ali v Sydney Mitchell & Co (1978) 3 All ER 1033

However, in this instance:

[56] In my opinion the preparation of the claim and statement of claim by the defendant

in this case was not something intimately connected with the conduct of the case in

court.

Accordingly, judgment was given to the plaintiff against the barrister for $114,302.17, plus interest.

Brisbane Barrister – David Cormack

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