Pittaway v W.H. Tutt & Quinlan & Anor [2003] HCATrans 480 (14 November 2003)

--

Pittaway v W.H. Tutt & Quinlan & Anor [2003] HCATrans 480 (14 November 2003)

Last Updated: 20 November 2003

[2003] HCATrans 480

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B72 of 2002

B e t w e e n -

JASON PITTAWAY

Applicant

and

W.H. TUTT & QUINLAN

First Respondent

STEPHEN E. KERIN

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 NOVEMBER 2003, AT 12.41 PM

Copyright in the High Court of Australia

MR H.B. FRASER, QC: May it please the Court, I appear with MR D.R. KENT for the applicant. (instructed by Richardson McGhie)

MR K.N. WILSON, SC: May it please the Court, I appear for the respondents. (instructed by McInnes Wilson)

HAYNE J: Yes, Mr Fraser.

MR FRASER: Your Honours, if I could first deal with the question of error. It is our submission that the Court of Appeal was in error in the way it approached the appeal to it. The matter was a matter in which there was an application for summary judgment. The relevant rule was rule 293 of the Uniform Civil Procedure Rules, which is set out at page 46 of the application book.

In summary, the point which I hope to develop is that the decision made by the primary judge was an evaluative one, or a predictive assessment, and in the Court of Appeal, instead of identifying legal error in that assessment, the court, in my respectful submission, appeared to embark on a fact-finding exercise, as though this were a trial of the facts.

The crux of the decision at first instance really starts in the appeal book at page 35. Your Honours will recall that what the primary judge was considering was the dictum of Mr Justice Deane in Hawkins v Clayton. That dictum is set out earlier in the appeal book at page 31, and your Honours are no doubt familiar with it in relation to the construction of the typical provision of the Limitation of Actions Act. At page 35, the primary judge pointed out, at the top of the page, that:

The reference to the wrongful act effectively precluding the institution of proceedings is in my view a reference to an issue of fact, not to an issue of law.

His Honour then recognised that the evidence before his Honour was not as complete as his Honour would have wished, and pointed out, correctly, in my submission, at about line 40, that the task of the applicant for summary judgment was to satisfy the judge, both:

that there is no real prospect of success and no need for a trial.

Then, after discussing the authorities and, in my respectful submission, appropriately dealing with them as dealing with different facts, at page 37 of the appeal book, his Honour then returned to the theme about a finding of fact, at about line 20, and found, at lines 30 to 40, that it was really, in his Honour’s judgment, a “question for trial” and was:

not satisfied that the point is unarguable on the material before me nor that there is no need for a trial.

When the Court of Appeal - - -

HAYNE J: Just interrupting you there, and staying at page 37, in the paragraph commencing at about line 16 or 17, it is said that, in effect, why should a distinction be drawn:

between a case where bringing [the] action is effectively precluded by the withholding of a fact and where it is effectively precluded by negligent advice.

Which action against which party is there referred to?

MR FRASER: In my respectful submission, it is the action against the solicitor.

HAYNE J: How is the action against the solicitor effectively precluded by the advice which the solicitor gave?

MR FRASER: The applicant in this case would wish to have the opportunity of contending at trial, that taking into account factual matters, such as the strong terms of the advice, the plaintiff’s own education, level of intelligence and ignorance of the relevant processes, and the relatively superior position of the solicitor, that the effect of the conduct here was really to cause the applicant to abandon any thought of any legal proceedings. In a sense, it meant that the applicant could never appreciate that he had sustained any loss in consequence of not bringing proceedings against the employer, because the effect of the advice given to the applicant was that no such proceedings, really, could be brought.

So, in my submission, the effect of the advice on the applicant could be found by a trial judge in particular circumstances to really have a dual effect – returning to your Honour’s question of me – both from precluding him from bringing proceedings against the employer, and in a particular and admittedly unusual case, in precluding him from effectively bringing proceedings against that solicitor himself. That really was the question, though.

HAYNE J: Assuming that there is a principle of the kind for which the passage in Justice Deane’s judgment is commonly cited, how does that sit with the express provisions of the Limitation Act, which would permit the extension of time in some, but not all, circumstances?

MR FRASER: The existence of those provisions would, of course, be a factor used in an argument against the proposition for which this applicant would wish to contend at trial. We accept that, your Honour. But it would not necessarily flow, in my submission, that there could not be such a principle. His Honour Mr Justice Deane really referred to two sets of ideas in that dictum. One was the possibility of an estoppel preventing the application of the statute in a particular case, and then his Honour developed that, or referred, instead, to the more direct route of treating the statute as not on its proper construction applying.

Of course, in the case of estoppel, it would not necessarily matter that there was some other express provision that did not apply to the particular case. In the case of construction, I, of course, accept it is a factor against the construction, but the point we wish to make about it is that the proceedings have so far proceeded on a common assumption, both between the parties and adopted by the court and in the Court of Appeal, that it was not appropriate, on a summary judgment application, to determine questions of that kind.

Going to the Court of Appeal, what I respectfully submit was the error was really a failing to identify the error in the evaluative judgment made by the trial judge. The court, at page 45 of the appeal book, extracted a paragraph from the applicant plaintiff’s reply, which in terms asserted that he had been precluded from instituting these proceedings. Then, at page 46, after referring to the rule and the dictum of Mr Justice Deane, referred to the approach of the primary judge at the bottom of the page and over the top of the next page, setting it out.

In my submission, the error really appears in paragraph [10], because what the court appears to have done, with respect, is, rather than to identify an error in the discretion exercised by the primary judge not to utilise the power to summarily dispose of the proceedings, instead to find that there is an error of fact and, really, to find as a fact, at this level, that the applicant here could not argue that what the respondent here did caused the applicant here to be unaware of his rights to sue them. That, really, is just one element in the case which the applicant would wish to make at trial.

We accept, of course, that the evidence that was put on by affidavit could have been better, and might be, hopefully, better at the trial, but we point out that that was taken into account by the primary judge. What was really involved was a kind of predictive assessment. Over at page 47 of the appeal book, at paragraph [14], there is what appears in terms to be a finding that:

Here the negligence –

of the solicitor in advising the plaintiff:

that he had no prospects of successfully suing his employer did not cause him to be unaware that he could sue them for that negligent advice.

That seems to be the crux of the reasoning. In my respectful submission, it again illustrates that the court has approached what was a summary judgment application and, really, an appeal from a refusal to grant summary judgment on the basis that the court ought to be, in effect, rather than identifying error, finding the facts.

HAYNE J: On an application for summary judgment, would a court act properly if it took your client’s pleadings at face value and as asserting your client’s case at its highest?

MR FRASER: I could not submit that it would act improperly. In my submission, though, a court would be entitled to take into account the possibility that there might be amendments. The paragraph extracted at page 45, the allegation of fact – possibly going a bit beyond that, but the allegation of fact is quoted at paragraph [6], which in terms made the allegation which was sought to be made at trial. Then there were particulars, which, of course, might be improved on or altered at trial. But it was not a pleading argument; it was a question whether the action should be terminated summarily.

We respectfully submit that the respondent’s argument in this court really adopts the same approach. I will not go to it, but they really say that these findings of fact were fully justified in the Court of Appeal, and they do not, with respect, identify where the court found error in the decision made by the primary judge not to exercise the discretion which the rule gives the primary judge.

We respectfully submit it was a particularly unsuitable case for summary judgment, given that both parties and the court acted on the basis that the correctness of Mr Justice Deane’s dictum was to be assumed, for the purposes of the application. It is difficult, with respect, to make findings of this kind without - against a background of findings of the actual facts - evaluating what, if any, the true doctrine is, and then applying it to those facts. We submit that in the particular circumstance of this case, this was not really an exercise which could appropriately be conducted in a summary judgment application.

We have given the Court reference to authorities, and I am not sure that I need to go them. We have mentioned, of course, Fancourt v Mercantile Credits Limited and the decision of the House of Lords, which is on an identical rule, in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1. The relevant provision of that English rule appears in that judgment at page 259, I think it is, at paragraph 89. It is really either identical or close to identical to the Queensland rule.

That case was, of course, a far more complex one than this, but there are statements of principle about the application of the rule by their Lordships, particularly by Lord Hope, starting at paragraph 92 on page 260, going through to paragraph 96. We draw the Court’s attention to the fact that, at paragraph 94, his Lordship identifies the question as being, what is the scope of the inquiry under the rule? At paragraph 95, he points out that:

The method by which issues of fact are tried in our courts is well settled –

referring to the interlocutory processes that are offered. It is also dealt with by others of their Lordships. We draw your Honours’ attention to the statement at page 272, through to 273, in the speech of Lord Hutton, quoting, at the bottom of page 272, from a judgment of Lord Woolf. Starting at the bottom:

“Useful though the power is under Part 24, it is important that - - -

HAYNE J: Does any of this advance what is well established in cases like Day, General Steel, et cetera?

MR FRASER: No, your Honour. The only point I would wish to make, really, is that the point that is being made by their Lordships is that under this rule one is concerned with a judgment which has elements of evaluation as well as prediction about what the position would be at the trial. Can I perhaps just complete that point by referring to one aspect of Lord Hobhouse’s speech at page 282. In paragraph 158, about line C, his Lordship makes that point, in the sense that his Lordship refers to this as:

a “discretionary” power, ie one where the choice whether to exercise the power lies within the jurisdiction of the judge.

His Lordship also refers to the predictive nature of it, in terms of “assessing the prospects of success”, and, at about D to E:

the judge is making an assessment not conducting a trial or fact-finding exercise –

and so on. So the point we wish to make against that background is that we respectfully submit that the Court of Appeal has not appropriately identified error in the exercise of that discretion or evaluation by the primary judge, and that, we submit, is the error.

The cases that have been referred to by the Court of Appeal were, we respectfully submit, all cases that turned upon their own facts. In each of Sampson v Zucker and Cheney v Duncan, both in the New South Wales Court of Appeal, the plaintiff had in fact been advised by a solicitor within the relevant limitation period for suing the plaintiff’s first solicitor. So they did not, with respect, have a lot to do with this particular case.

There are many cases at first instance in which the dictum of Mr Justice Deane has been treated as either a principle or correct for the purposes of summary proceedings, but, in my submission, they do not really add anything relevant to the current application.

In terms of why special leave should be granted in this case, we submit that, firstly, there is an “interests of justice” question. The applicant has been held out of trial and, in our submission, it would be appropriate, given what we submit is error in the Court of Appeal, to let the matter go to trial in the ordinary way.

Secondly, in our submission, the approach of the Court of Appeal to an appeal from a summary judgment reveals an error of principle which ought to be corrected. Thirdly, the question of the potential applicability of the dictum of Mr Justice Deane, albeit that the correctness of it for summary judgment purposes was assumed, does raise an important question, because that issue is one which is constantly being raised in summary proceedings and really not finding its way to trial. Those are our submissions, may it please the Court.

HAYNE J: Thank you, Mr Fraser. We need not trouble you, Mr Wilson

The principles which the applicant would otherwise have to make good in order to succeed in an appeal would not necessarily fall for decision if leave were to be granted. The actual decision of the Court of Appeal is not attended by sufficient doubt to warrant a grant of special leave. Special leave to appeal is accordingly refused with costs.

AT 1.00 PM THE MATTER WAS CONCLUDED