Proctor : August 2019
37 PROCTOR | August 2019 WE ARE ACCEPTING REFERRALS At Bennett & Philp, we’re more concerned with getting results for your clients than we are with doing press releases. If you’ve had a medical negligence claim that’s come across your desk, and you’re looking for someone to get the job done, maybe it’s time to talk to John Harvey. For over 20 years John Harvey has been representing the clients of Queensland lawyers, who are victims of negligently performed medical procedures. WHY TALK TO US? We act no-win, no-fee We pay outlays We do not charge interest on outlays CONTACT JOHN DIRECTLY JOHN HARVEY P: (07) 3001 2910 E: firstname.lastname@example.org Consequences for pleading allegations without a material basis A breach of the ACSR can amount to unsatisfactory professional conduct or professional misconduct. 16 Further, practitioners who facilitate abuses of the court’s processes by promoting hopeless cases can be visited with personal costs orders. However, there is a relatively high threshold for such an order. The District Court17 has recently considered the principles surrounding personal costs orders against practitioners, stating that: a. There must be something more than “merely initiating or continuing an action which has no or substantially no prospects of success”, and there must be a “serious dereliction of duty or misconduct, though that may be simply a failure to give proper attention to the relevant law and facts in making an assessment of whether there were any worthwhile prospects of success”. 18 b. It was “rarely, if ever, safe for a court to assume that a hopeless case was being litigated on the advice of the lawyers involved”. 19 c. Adopting an earlier statement from the Court of Appeal, “it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it”. 20 Judge McGill SC found that the counterclaim in that case was “essentially hopeless”, but not because of any legal bar, but rather because “to succeed it was necessary for the court to accept oral evidence which was inconsistent with contemporaneous documentation and prior sworn evidence from those witnesses”. 21 His Honour said that this was theoretically possible, and that even though in a practical sense the case was accordingly hopeless, and advice to that effect should have been given to the client, if the matter proceeded on instructions having given the relevant advice, there was no warrant for a personal costs order against the solicitor.22 Solicitors who breach their ethical duties by pleading an allegation without a belief that the material discloses a proper basis may also attract liability for breach of the duty of care that they owe the client. Given the matters outlined above, it is important to remind clients that, just because a pleading is settled by counsel or a solicitor, it does not mean that it has good prospects of success. Clients should be told that an advice on prospects can, and should, be obtained, separately to any pleading exercise. However, if the solicitor perceives the relevant claim or defence to be weak, they should proactively alert the client to that circumstance promptly once they become aware of it. Further, just because a pleading has been settled by counsel does not mean it is impervious to a summary judgment or strike out application. 23 The client needs to be aware that pleading a weak case, even if it can be done ethically, can expose them to summary dismissal and costs consequences. BACK TO BASICS Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee. Maxwell Walker is a Brisbane barrister. Notes 1 Legal Profession (Australian Solicitors Conduct Rules) Notice 2012. 2 Rule 21.4.1 ASCR. 3 Rule 21.4.2 ASCR. 4 Bar Association of Queensland Barristers’ Conduct Rules, 23 February 2018, rules 63 and 64. 5 Bar Association of Queensland Barristers’ Conduct Rules, rule 65. 6 Rule 21.6 ACSR. 7 See Rule 36(a) of the New South Wales Barristers’ Rules 1994, which were referred to in Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 57 FCR 360 at 369. 8 At 369. Adopted in Re Mustang Marine Australia Services Pty Ltd (2014) 104 ACSR 461 at 466. 9 At 369. 10 At 371. 11 At 372. 12 Ibid. 13 Ibid. 14 In re Cooke (1889) 5 TLR 407 at 408, quoted by Callinan J (in dissent) in Batistatos v Roads and Traffic Authority of New South Wales  HCA 27 at . 15 Rule 21.4 ASCR. 16 Legal Profession Act 2007, s227(2). 17 Rivergate Marina & Shipyard Pty Ltd v Morphett (No.2)  QDC 180. 18 Ibid, at . 19 Ibid, at . 20 Ibid, at  quoting Steindl Nominees Pty Ltd v Laghaifar  QCA 157 at . 21 Ibid, at . 22 Ibid. 23 Uniform Civil Procedure Rules 1999, rules 171, 292 and 293.