Abriel & v Rothman [2004] NSWCA 40 (18 March 2004)

Last Updated: 23 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Abriel & Ors v Rothman [2004] NSWCA 40

FILE NUMBER(S):

40173/03

HEARING DATE(S): 17/12/03

JUDGMENT DATE: 18/03/2004

PARTIES:

FIRST APPELLANT

Rudolph Abriel

SECOND APPELLANT

Vera Abriel

THIRD APPELLANT

Premier Knits Pty Ltd

RESPONDENT

Stephen Rothman

JUDGMENT OF: Mason P Santow JA Cripps AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20636/01

LOWER COURT JUDICIAL OFFICER: Burchett AJ

COUNSEL:

APPELLANTS - Mr Abriel in person

RESPONDENT - L M Morris QC

SOLICITORS:

APPELLANTS - unrepresented

RESPONDENT - McCabe Terrill

CATCHWORDS:

Negligence alleged against a barister - Duty to the Court - Discretion of barrister as to which argument to advance - Not raised on appeal decided in earlier litigation. (ND)

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40173/03

MASON P

SANTOW JA

CRIPPS AJA

Thursday 18 March 2004

ABRIEL & ORS v ROTHMAN

Judgment

1 MASON P: I agree with Cripps AJA.

2 SANTOW JA: I agree with Cripps AJA.

3 CRIPPS AJA: This is an appeal, pursuant to leave granted, against the decision of Burchett AJ published on 8 November 2002 summarily dismissing the appellants' action against the respondent.

4 The appellants are Mr Abriel, his wife Vera Abriel and Premier Knits Pty Ltd. A reference to Mr Abriel is relevantly a reference to the appellants.

5 The respondent Mr Rothman SC appeared for Mr Abriel in an appeal to the Full Court of the Federal Court against the decision of Dowsett J delivered on 29 August 2000 after a five-day hearing. The Full Court of the Federal Court dismissed the appeal and the High Court refused an application for special leave to appeal.

6 Mr Abriel has alleged that Mr Rothman was negligent and/or otherwise in dereliction of duty in the presentation of the appellants' appeal to the Full Court of the Federal Court.

7 In order to understand the case Mr Abriel wishes to bring to trial against Mr Rothman and to determine whether Burchett AJ was correct in his decision to summarily dismiss his claim it is necessary to outline the litigious history preceding the decision by Burchett AJ.

8 In 1993 Mr Abriel sued Australian Guarantee Corporation and Westpac alleging he was entitled to compensation by reason of their fraud. The litigation was settled by a Deed of Release dated 5 April 1994.

9 Shortly after entering into the Deed of Release Mr Abriel commenced proceedings seeking to set aside the Deed of Release alleging that the execution of the Deed was procured by undue influence and that Westpac and AGL were guilty of unconscionable behaviour. The matter went to mediation and Ms Bennett SC (as she then was) acted for Mr Abriel, pro bono, at the mediation. The action was settled by Mr Abriel entering into a second Deed of Release.

10 Shortly after the execution of the second Deed of Release Mr Abriel commenced a third set of proceedings to set the second Deed aside. Ms Bennett was not made a party to this litigation even though it was Mr Abriel's case that Ms Bennett's negligence and/or dereliction of duty was in part responsible for him entering into the second Deed of Release.

11 The third set of proceedings went to trial before Dowsett J. Mr Abriel was not represented.

12 In the proceedings before Dowsett J Mr Abriel alleged impropriety on the part of AGL and Westpac, and Ms Bennett which, he alleged, resulted in Ms Bennett, in breach of her professional obligation, refusing to continue to act for him. It was alleged she succumbed to improper pressure from the legal representatives of Westpac and AGC arising out of what has been referred to as the "Grunstein letter".

13 The "Grunstein letter" was a letter written by Mr Abriel's solicitor, Mr Levitt and was sent to Mr Grunstein who was part of the legal team retained by AGC. It is unnecessary to set the letter out in full but in essence Mr Grunstein was exhorted to abandon his client's interest and to support Mr Abriel's case, that being the honourable thing to do bearing in mind that they were all Jews. In subsequent legislation Meagher JA referred to the Grunstein letter as a "plainly silly letter" (Abriel v Bennett [2003] NSWCA 323 (unrep 10 November 2003)).

14 It is evident from the decision of Dowsett J that in the discussions that finally resulted in Mr Abriel executing the second Deed of Release the "Grunstein letter" was shown to Ms Bennett by AGC's counsel. Mr Abriel alleged the purpose of showing her the letter was to put pressure on Mr Abriel to execute the Deed of Release and it was intended and in fact did result in Ms Bennett ceasing to act for him contrary to her duty and her express promise.

15 Ms Bennett gave evidence in the proceedings before Dowsett J in which she denied she had promised to appear for Mr Abriel beyond the mediation and denied that she was in any way influenced by the letter. Her evidence was accepted by the Judge. Ms Bennett said that the letter caused her no embarrassment but she thought it should have caused a great deal of embarrassment to the person who wrote it namely Mr Levitt who was Mr Abriel's solicitor. His Honour also accepted the evidence that AGC's counsel showed the letter to Ms Bennett not for the purpose of persuading her to abandon Mr Abriel (indeed the accepted evidence was that AGC and Westpac were anxious that Mr Abriel was represented by competent counsel) but rather to explain why it was that there were problems his clients had in coming to any agreement with Mr Abriel.

16 I should mention that Mr Abriel later sued Ms Bennett alleging that she was guilty of incompetence and/or breach of duty. The action was dismissed by Adams J on 2 May 2003 upon the grounds that the issue or issues Mr Abriel was seeking to raise were issues that had, in effect, been determined against him in the Federal Court proceedings referred to above. Adams J made reference to Reichel v McGrath (1889) 14 App Cas 665 where it was established by the House of Lords that a vicar who had unsuccessfully contested whether he had resigned a benefice (thereby losing his right to possession of a parsonage house) was thereafter not able to set up his continuance in the benefice in defence of ejectment proceedings brought by his successor. Reichel was recently referred to by the New South Wales Court of Appeal in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198. In that case the Court of Appeal considered it to be an abuse of process for the purchaser of land, having failed in his earlier claim against the vendor with respect to alleged misrepresentation to be permitted to bring, in effect, the same claim against the accountants who prepared the financial statements containing the misrepresentation. The accountants moved for summary dismissal for abuse of process and were successful.

17 An appeal by Mr Abriel against the decision of Adams J was dismissed by the Court of Appeal in Abriel v Bennett [2003] NSWCA 323 (unrep 10 November 2003).

18 As I have said, the respondent appeared for Mr Abriel in the Federal Full Court seeking to set aside the judgment of Dowsett J. The appeal was dismissed. In the present proceedings Mr Abriel has alleged Mr Rothman failed to advance a number of submissions as instructed, one of which was that Ms Bennett by her conduct was responsible for him entering into the second Deed of Release. He claimed that contrary to express instructions Mr Rothman failed to put arguments to the Full Court. For example, it is alleged he did not submit, as Mr Abriel demanded of him, that the entering into the Deed of Release was the consequence of improper conduct by both Ms Bennett and the lawyers representing AGC. He also alleged that Mr Rothman failed in his duty to him because he did not adequately advance the argument of apprehended bias in the conduct of the proceedings by Dowsett J.

19 Before this Court, Mr Abriel submitted that the grounds of appeal in the notice of appeal to the Full Court were "bullet points" which he alleges Mr Rothman did not argue or did not argue in the way he was instructed. These were:

1. Dowsett J erred in conducting the proceedings in denying Mr Abriel procedural fairness.

2. Dowsett J erred in conducting the proceedings in the manner which displayed apprehended bias.

3. Dowsett J erred in refusing to allow Mr Abriel to cross-examine witnesses called by Mr Abriel who gave evidence unfavourable to him and after an application to cross-examine was sought.

4. Dowsett J erred in failing to give any or insufficient weight to the evidence of the attitude of Mr Abriel expressed contemporaneously with the "settlement".

5. Dowsett J erred in giving any or too much weight to objective alternatives available to Mr Abriel and giving no or insufficient weight to the subjective effect and the particular circumstances of Mr Abriel.

6. Dowsett J erred in giving no or insufficient weight to the evidence of Mr Levitt as to the effect of the "Grunstein letter".

7. Dowsett J erred in giving no or insufficient weight to the effect of an accusation of a "Jewish conspiracy" would have on Ms Bennett.

8. His Honour erred in giving no or insufficient weight to the effect of the "Grunstein letter" which ought to be measured by its irrelevance to the mediation and issues agitated except for the purpose of putting improper or undue pressure on Ms Bennett in the mediation being the counsel insisted upon by the AGC and Westpac as a condition of the mediation proceedings.

9. Dowsett J erred in finding it difficult to accept that one barrister could exert sufficient pressure on another to cause the latter to withdraw from a case without understanding the particular and peculiar pressures here exerted.

20 In the appeal before the Full Court the respondent submitted that the learned trial judge (Dowsett J) had denied the appellants procedural fairness because he refused to allow him to cross-examine his former senior counsel (Ms Bennett) who was called by him. These, in effect, were the complaints in the first and third "bullet points". Mr Rothman did not raise an allegation of apprehended bias or any of the other "bullet points".

21 Before Burchett AJ the respondent relied on two basic contentions. The first was that the alleged wrong-doing by him fell fairly and squarely within an area of barristers' immunity pursuant to the decision of the High Court in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 and that in any event and leaving to one side barristerial immunity the arguments submitted by Mr Abriel that Mr Rothman should have put before the Court had no prospects of success at all.

22 Burchett AJ correctly identified the principles upon which he was required to act for the purpose of determining the application by Mr Rothman (Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 at p 128-30.)

23 Burchett AJ was of the opinion that the omissions alleged against Mr Rothman would, if advanced by Mr Rothman, have had no effect on the outcome of the appeal. To this he considered there was possibly one exception (in theory at least) and that was the submission, if it had any substance, that the appeal should succeed on the basis of the apprehended bias of the learned trial judge. Burchett AJ found, however, that in respect of that proposed submission there was "no vestige of support to be found in the case....". His Honour also pointed out that an adverse decision does not suggest bias. His Honour said:

"Nothing more is to be seen here than a firm persuasion to the contrary of the plaintiffs' case. It must not be overlooked that, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Johnson v Johnson (2000) 2001 CLR 488 at 493: `The reasonableness of any suggestion apprehension of bias is to be considered in the context of ordinary judicial practice.' "

24 His Honour found :

"For these reasons the plaintiff's case against Mr Rothman cannot possibly succeed. His decision not to advance futile arguments was correct, and the result, of course, could not have been improved had he advanced those arguments. They were not, in reality, to use the expression in the Amended Statement of Claim `appealable points'."

25 His Honour was of the opinion that there was a further ground independently leading to the same conclusion. He referred to Giannarelli and to the observations in that case that Mr Rothman owed a "paramount duty to the Court" which required him not to "cast unjustifiable aspersions on any .....witness". Mr Abriel has submitted, in effect, that the immunity accorded Mr Rothman went well beyond that conferred by Giannarelli with respect, at least, to the decision by Mr Rothman not to advance the argument concerning Ms Bennett's alleged dereliction of duty and his conflict of interest with respect thereto.

26 In correspondence passing between the parties in April 2001 Mr Rothman alleged and Mr Abriel denied that he, Mr Rothman, fully apprised Mr Abriel as to the manner of running the appeal. In his letter of 9 April 2001 Mr Rothman said that he told Mr Abriel that he was unable to "run a case for you because, and/or to the extent that it involved an attack on Annabelle Bennett who was a friend and colleague." Mr Abriel in a letter dated 17 April 2001 denied Mr Rothman's assertion. He also denied that he was fully apprised of the way the appeal was to be run.

27 I am prepared to accept that it is arguable that the immunity covered by Giannarelli does not extend to a barrister's dereliction of duty consequent upon an undisclosed conflict of interest. However I do not think that ground is available in this appeal. First because there is no sworn denial of the letter of 9 April 2001 in which Mr Rothman, in effect, denied Mr Abriel's ignorance as to how the appeal was to be conducted. Accordingly it was unnecessary for the learned trial judge to make any finding about this matter and I do not think it should be permitted to be raised on appeal - raising as it would issues of credit and causation. Secondly and perhaps more importantly the submission is directed to the failure to advance arguments concerning Ms Bennett's alleged misconduct. Issues relating to Ms Bennett's conduct were fully litigated in the case heard by Dowsett J and her evidence was accepted. Ms Bennett was not a party to the proceedings before Dowsett J. Nonetheless in my opinion and conformably with the principles referred to by this Court in Rippon it would be an abuse of process to allow the propriety of Ms Bennett's conduct to be re-litigated in these proceedings.

28 In my opinion the appeal should be dismissed with costs.

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LAST UPDATED: 19/03/2004