Advocates immunity against suits in negligence alive and kicking ... Deficient pleadings prevented exploration by Court of Appeal of a possible qualification to the immunity ... Family law settlement dispute in Victoria also quelled
Clive Evatt: immune
Thank god. The advocates immunity has survived a few more bruising challenges.
NSW's finest - McColl, Basten & Whealy - saw off saw off an attack that had had wily Sydney barrister Clive Evatt and solicitor Trevor Carter in its sights.
And in Victoria, Justice Kevin Bell put to bed a claim by a distressed client whose family law dispute had been negligently settled.
Courts in far flung places, such as England, New Zealand and Canada have insured against lean times for advocates by getting rid of the immunity.
Repeatedly litigating closely related issues over and over would be of economic benefit to many advocates here who find themselves on struggle street.
Apparently one justification for the rule's retention is that courts are now required to facilitate the "just, quick and cheap" resolution of disputes.
The High Court said disputes have to be "quelled" with finality.
That's all very well but, as we know only too well, "finality" in law is an abstraction.
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Plaintiff David Bott unsuccessfully sued in the District Court to recover damages for work related injuries. Carter and Evatt acted for him.
John Hislop J in the Supremes threw out the appeal and then Bott turned on his lawyers, claiming that Carter failed to contact witnesses or arrange for them to attend court at appropriate times, that he didn't advise on the need for appropriate medical evidence and "took no interest in the case".
According to the CA judgment he claimed that Evatt inadequately prepared for trial and that he failed to remain awake during witness testimony and "was not during the hearing in a state capable of making any decisions".
Basten had no hesitation in throwing these claims out, finding they were covered by the scope of the immunity, whose justification …
"is now soundly rooted in a principled approach to the fundamental need in the administration of justice for finality of judicial determination."
For a horrible moment, I thought he was going to end the sentence at "rooted".
Another problem was that Bott had failed to quantify his loss.
However, Basten teased us by suggesting that there may be a qualification to the immunity's comfortable middle-aged spread - in relation to a claim that the solicitor negligently failed to take-up settlement discussions.
"With one potential qualification, the immunity is sufficiently wide to cover all of the conduct alleged against the respondents. The qualification relates to a complaint in relation to a possible settlement of the proceedings. However, the proposed pleading in that regard is manifestly deficient. Accordingly, the appeal must be dismissed."
Deficient pleadings saved the day.
Peter King acted for Mr Bott.
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Kevin Bell J in the Victorian Supremes quelled a dispute in March by finding that law shop Goddard Elliott was safely across the line in its claim for immunity for negligence.
Goddard Elliott acted for Paul Gerhardt Fritsch in a Family Court property settlement. The lawyers knew the proceeding raised complex commercial and taxation issues and that the client, a Vietnam war vet, was mentally ill.
The proceeding settled at the door of the court on terms which were overly generous to the wife.
At that time, Fritsch was unwell and soon afterwards he was admitted to a psychiatric hospital.
He contends the settlement resulted from the negligence of his solicitors - in particular they acted on instructions he did not have the mental capacity to give.
He sought damages of around $1.6 million, which he claimed he would have received in a just and equitable settlement.
Fritsch also sued his barristers Noel Ackman QC and Clive Rosen and his accountant Kevin Ferguson, however the claims against those three were settled.
Goddard Elliott batted on, contending Fritsch had mental capacity to instruct and voluntarily settled the case to avoid significant forensic, taxation and other risks.
In a lengthy judgment Bell found there was negligence on the part of the firm, but the immunity kicked-in with some much needed quelling.
If the proceedings had not been brought to finality so effectively Bell said the client would have been entitled to damages of $675,000.
The negligence "occurred in the course of work leading to decisions about, or intimately connected with, the conduct of a case in court".
"Mr Goddard was the partner at Goddard Elliott who had responsibility for the conduct of the overall case. He was personally engaged by Paul [Fritsch] for that purpose. He knew the nature of the case. He knew Paul had a mental illness. He accepted the engagement on that basis. Mr Goddard allowed his relationship with Paul to go beyond that of a client to that of a friend. He knew Paul saw him as a friend. For professional reasons, he should have ceased to act for Paul after the mediation but did not do so. Mr Goddard knew Paul and the extent of his mental illness much better that Mr Ackman and Mr Rosen."
Happily, Goddard Elliott was successful in its counterclaim and was awarded $69,000 worth of fees.
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Evatt: Smart
While Clive Evatt is fresh in our mind it's worth mentioning the interesting story in the Financial Review (April 19) from arts correspondent Katrina Strickland.
Two years ago Clive sold a Jeffrey Smart painting, Holiday, at Menzies auction house for $960,000 (including fees).
Last month there was a profile of Clive in the Sun-Herald. The story was accompanied by a snap of the barrister with Smart's Holiday on the wall behind him.
Had the painting not been sold after all?
"It's a fake," Evatt told the Fin Review.
"When I sold it I had a photographic copy made."
He did the same before he lent an Andy Warhol to the Art Gallery of NSW, where it now hangs.
The question was posed, can you just copy the original work of an artist?
Robyn Ayres from the Arts Law Centre of Australia, told Strickland:
"Generally speaking, the artist would retain copyright and you wouldn't be entitled to make a copy without the permission of the artist, unless the artist had sold you the copyight."
How did that square with Evatt, who bought the painting in 1971 from Macquarie Galleries?
He said he also purchased the copyright.
"I always do that as an art dealer."
For all intents, the copy of Holiday on the wall of Evatt's Turramurra spread looks as good, if not better, than the original. And he's about $900,000 the wiser.