Costs Claimed Against Barrister for Negligence
Dunn v Young (Legal Practice) [2021] VCAT 970 (24 August 2021)
Mr James Dunn was represented by Mr Young in a proceeding against the former's neighbors and contractors regarding his access to his property. Mr Young brought the claims in nuisance and drafted the Statement of Claims accordingly. During the hearing, Mr Young moved to adjourn the case and the Magistrate had Mr Dunn pay the costs of the other parties. Mr Dunn claimed the sum of $11,905.20 from Mr Young alleging that he was negligent in handling the case.
Facts:
Mr James Dunn commenced proceedings in the Magistrates’ Court of Victoria (MCV Proceedings) seeking damages from his neighbours and a contractor for installing a pipe across a driveway which prevented access to his property. Mr Russell Young, a barrister, was briefed by SV Winter & Co to draft the statement of claim and represent Mr Dunn. Mr Young advised Mrs Dunn, Mr Dunn's mother and the one who gives Mr Young day-to-day instructions, that the claim should be brought in nuisance and drafted the SOC accordingly. He left it to Mrs Dunn to include details of ‘special damages’ in the SOC, and to gather the expert evidence needed to support the claim.
During the attempts to settle the MCV Proceedings, the parties could not agree on the terms of an injunction to fix the issues associated with the pipe across the driveway. On Sunday 3 May 2015, upon Mr Young's review, he determined that Mr Dunn’s case was not ready to proceed to hearing and that it would be necessary to seek an adjournment. He sought adjournment on the day of the MCV Hearing. It was opposed by both Mr Dunn’s neighbours and the contractor, whose Counsel suggested that the MCV Proceedings had been incorrectly initiated based on nuisance given the pipe had been built on Crown land rather than private property.
The Magistrate granted an adjournment on the basis that Mr Dunn pay the costs thrown away by the other parties. Mr Dunn claims the sum of $11,905.20 from Mr Young as it comprises the costs order, the amount paid or payable to Mr Dunn's witnesses, and the fees paid to another barrister to amend the SOC.
Issues:
I. Whether or not Mr Young was negligent or failed to act with reasonable skill and care, contending that the claim in nuisance was appropriate and sufficient.
II. Whether or not Mr Dunn should pay the costs ordered against him.
III. Whether there can be a consumer-trader dispute.
Applicable law:
Australian Consumer Law and Fair Trading Act 2012 (Vic) s 184 - provides for the Tribunal's jurisdiction in relation to a ‘consumer-trader dispute’, which can include a claim in negligence.
Australian Consumer Law and Fair Trading Act 2012 (Vic) s 224 - provides for the Tribunal's jurisdiction in relation to a cause of action arising under the Australian Consumer Law (Victoria) (ACL), which includes a claim in respect of the consumer guarantees relating to services in sections 60 to 62 of the ACL.
Australian Consumer Law and Fair Trading Act 2012 (Vic) s 183 - defines a consumer-trader dispute as a dispute between a purchaser or potential purchaser of goods or services and a supplier of such goods or services.
Australian Consumer Law s 60 - provides that if a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
McLeod v Marina Operations Aust Pty Ltd [2006] VCAT 2537 - Judge Bowman suggested that to determine whether that relationship [of purchaser and supplier] exists, one must first look at whether there is a contract in existence.
Zeus and Ra Pty Ltd v Nicolaou [2003] VSCA 11; (2003) 6 VR 606] - where it was held that there is no consumer-trader dispute in the absence of a contractual relationship between an applicant and the putative supplier.
Tucci v Victorian Civil and Administrative Tribunal & Anor [2010] VSC 425 - Cavanough J observed that, where a contractual relationship exists, the ‘actual dispute or claim need not be contractual at all’.
Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219 [77] - where it was held that services can sometimes be supplied to a consumer in trade or commerce when they are not supplied pursuant to any contract at all – for example, if a service provider gives a free trial of the services. Even in those circumstances, a ‘guarantee’ can arise.
Roberts v Rodier [2006] NSWSC 282 - it was confirmed that a claim of nuisance could be brought against a person who undertook work on a council road reserve with authority (as in this case) and, by his or her activities (in that case, also involving excavation), substantially and unreasonably interfered with the plaintiff’s use and enjoyment of her land (in that case, causing her land to slip).
Lindner & Anor v The Corporation of the City of Marion [2015] SASC 152 - recognised that a nuisance claim can be brought against a licensee, and that the impeding access to land can amount to an unreasonable interference with use and enjoyment of that land.
Analysis:
When SV Winter engaged Mr Young to act, the firm was doing so for the direct benefit of Mr Dunn, as SV Winter’s client. As such, the services can be seen to have been conferred on Mr Dunn, he is entitled to bring a claim in respect of any breach of the consumer guarantees. Mr Dunn contends that Mr Young failed to plead negligence in the SOC. In the MCV Hearing, the Magistrate indicated that, in any event, Mr Dunn’s claim could be maintained in negligence.
There was no direction made by the Magistrate that Mr Dunn’s SOC was to be amended. The new barrister engaged to represent Mr Dunn told Mrs Dunn to ‘close the case down’ and ‘walk away’ as the ‘damage was so insignificant that it was not worth proceeding’. Hence, the reason for the adjournment was not a need to amend the SOC to plead negligence but, rather, deficiencies in the evidence with respect to the damage said to have resulted from actions of Mr Dunn’s neighbours and the contractors that they engaged. To be liable for the costs, Mr Young's adjournment of the hearing must be the operative cause of the losses.
In the case, there were issues with the evidence in support of damages which significantly caused the losses. Contrary to Mr Dunn's position, there were no misleading or deceptive statements by Mr Young established to have caused losses. Mr Young contends that, as there was ‘no contract between Mr Dunn and Mr Young; so, Mr Dunn was not a purchaser of Mr Young’s services. Mr Young was engaged by SV Winter. As such, there was no contractual relationship between Mr Young and Mr Dunn (despite Mr Young receiving day-to-day instructions from his mother).
Conclusion:
Mr Dunn has not proved that Mr Young’s services were not rendered with due care and skill, and his claim must be dismissed. Insofar as Mr Dunn relies on negligence on the part of Mr Young, the Tribunal has no jurisdiction to consider the claim given that there was no contractual relationship between Mr Dunn and Mr Young. The principal registrar is directed to amend the respondent’s name to Russell Norman John Young. The Court ordered the application dismissed.
