Vexatious Litigants and Immune Advocates
Oct 2014 |
The following two cases have recently been decided in the Supreme Courts of Queensland and New South Wales respectively. The first decision involves a successful argument by the Bar Association of Queensland that a plaintiff be declared a vexatious litigant, notwithstanding the usual difficulties in achieving this outcome. The second decision involves a successful argument by a barrister and solicitor that they are harmless to the plaintiff’s allegations on the basis of advocates’ immunity.
Markan v Bar Association of Queensland (No 3) [2014] QSC 225
Background
The courts tread carefully when attempting to balance one party’s right to have their grievances heard with another party’s right not to be annoyed and harassed by unnecessary, frivilous litigation. Generally the courts will err on the side of caution and allow litigants to commence proceedings. Very rarely will a court find that a member of the public is a vexatious litigant under the Vexatious Proceedings Act 2005 (Qld) (VPA).
The recent Supreme Court case of Markan v Bar Association of Queensland (Markan case)1 demonstrates how high the threshold is before a court will revoke a person’s right to be heard in court and prohibit them from instituting proceedings in all courts within a State.
In the Markan case, Mr Markan alleged that he was wrongly convicted and sentenced to four years jail for an act of grievous bodily harm (GBH). Mr Markan was found guilty of GBH after a jury found that he broke the arm of a former colleague while working at a resort on South Stradbroke Island.
From this conviction, a series of appeals, claims and applications were instituted by Mr Markan against the Bar Association of Queensland (BAQ), the Crime and Misconduct Commission, the Queensland Police Service and the Legal Services Commission. The allegations contained in the appeals, claims and applications included accusations such as:
- unlawful acts ‘indicating gross malice and ill will…affecting the whole society, eroding public confidence in the operation of the justice system’;2
- demands for public apologies from the BAQ; and
- demands for people associated with the BAQ to be sent to re-education facilities ‘where they be subjected to hard physical labour’.3
The Markan case is the third action instituted against the BAQ and relates to a purported ‘invoice’ from Mr Markan to BAQ. The invoice had two components. The first was described as the ‘non creative’ component for $500,000 which was noted to have been ‘graciously waved [sic]’. The second was described as the ‘creative component’ for the ‘promotion of Bar Association of Queensland … as the most effective Mafia organisation in the world’. That amount was $10,000,000.13. The statement of claim alleged the parties reached an agreement, under which that sum was payable by BAQ to Mr Markan, ‘… by virtue of their conduct’.4
BAQ denied the existence of any agreement and argued that Mr Markan should be made the subject of a vexatious proceedings order or, in the alternative, that the claim and statement of claim be struck out for failing to clearly identify a cause of action.
Mr Markan then cross claimed that BAQ should be declared the vexatious litigant.
The characteristics of a vexatious litigant
The court recognised that there was a two stage test involved in this determination:
- whether the plaintiff had instituted vexatious proceedings; and
- whether the vexatious proceedings had been instituted frequently.
With respect to the frequency aspect, it was considered that ‘frequently’ is a relative term to be considered in the context of litigation and may also include applications made within proceedings.5 Mr Markan had commenced a combined number of nine actions and appeals since 2010. The total number of claims, appeals and applications made by Mr Markan was considered to fall ‘fairly within the usual meaning of the word frequently’.6
The Court found the following factors were indicia that Mr Markan was a vexatious litigant:
- The claims had no basis in law.
- The claim for damages were extraordinarily high.
- The accusations against the defendants were unsubstantiated and very serious.
- All matters were appealed to the limit of the appeals process which involved the rerunning of arguments previously said to be without merit.
- Continued disregard of court procedure and the failure to learn anything from previous inadherence of the court rules.
The agreement alleged to exist between Mr Markan and the BAQ was found to be ‘plainly fictitious’. Further, the calculation of the damages sought was found to be irrational and exorbitant. The accusations made in Mr Markan’s claims were found to be baseless but very serious against each of the defendants. Those accusations were elaborated upon in affidavit material and specifically named certain members of the judiciary, again with unsubstantiated accusations.
The repeated and regular appeals involving the rerunning of arguments, particularly in light of the fact that they were deemed to be without merit, was an abuse of process.
With respect to point five above, Wilson J noted that he was entitled to take into account what had happened in the other Markan proceedings.7 Mr Markan’s actions were illustrative that he had no desire to adhere to the court procedure despite being given explicit instructions to do so. Where Mr Markan was allowed to amend his applications so as to adhere to the court rules, the amended claims and pleadings were returned ‘more extravagantly and less coherent than the documents he initially filed’.8
Outcome
At [63], Wilson J held that:
‘The absence of any legal basis for his actions, combined with his perseverance in the face of these adverse judgments, compels the conclusion that his proceedings are vexatious within the meaning of that term in the VPA.’
The orders of Wilson J prohibit Mr Markan from instituting proceedings in any Queensland Court.
Proceedings are commonly struck out for disclosing no reasonable cause of action, however it is far less common for a litigant to be found vexatious. Although Mr Markan’s acts appear to be extreme, they are demonstrative of how high the threshold is before a court is willing to find a litigant to be vexatious.
Gillies v Brewer [2014] NSWSC 1198
Background
Darrin Gillies was charged with several incidences of sexual assault occurring in July 2004. He retained a solicitor and barrister in February 2006 to represent him at the trial in August 2006.
After being found guilty, Gillies filed a statement of claim against the barrister, Mr Brewer, as first defendant and the instructing solicitor, Ms Randle, as second defendant. The claim sought relief due to the ‘unlawful failure to follow the instructions provided by the plaintiff in order to gain personal financial benefit’.
Consideration of advocate’s immunity
The case law and policy considerations on the principle of advocate’s immunity were cited and discussed.
The central basis for the principle is that once a matter is resolved, it should not be re-opened. In allowing barristers and solicitors to be exposed to law suits, each time a client’s litigated matter fails, the flood gates would potentially be open for the client to sue their legal representatives for negligence. This in itself would then require a re-opening of the initial matter to determine whether or not the legal representatives were in fact negligent or if the initial matter was determined incorrectly.
At [61], Rothman J referred to the decision of Lanphier v Phipos,9 in which Tindal CJ expressed the view that:
‘Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill.’
Tindal CJ continued that ‘on the other hand, the common law has for a very long time recognised that the barrister is not subject to such general duty of care’.10
The principle of advocates’ immunity, as explained in Australia in Giannarelli v Wraith,11 is now well established in Australian law (albeit with some controversy amoungst commentators).12 The law confirms that ‘....an advocate cannot be sued by his or her client for negligence in the conduct of a case, or in work out of court which is intimately connected with the conduct of a case in court’.13
Outcome
Through the well established common law, the barrister in this case was undeniably immune from suit by Gilles. With respect to the solicitor, a separate body of common law confirms that a solicitor, acting in a litigated matter can enjoy wide protection under advocates’ immunity, even in circumstances where counsel had been briefed.14
The justification of the advocates’ immunity principle is explored in this decision by reiterating the public policy considerations and the principle of finality.
Issues arising
Both cases demonstrate that notwithstanding the high incidence of claims against professionals, the courts remain willing to afford a level of protection to professional advisers in appropriate circumstances. This includes preservation of the advocates’ immunity from suit, and the declaration of vexatious litigants.
1 (No 3) [2014] QSC 225.
2 Markan v Bar Association of Queensland (No 3) [2014] QSC 225 [18].
3 Ibid [20].
4 Ibid [34].
5 Attorney-General (NSW) v Gargan [2010] NSWSC 1192 [7].
6 Markan v Bar Association of Queensland (No 3) [2014] QSC 225 [60].
7 Ibid [66]; Attorney-General (NSW) v Chan [2011] NSWSC 1315 [39].
8 Markan v Bar Association of Queensland (No 3) [2014] QSC 225 [65].
9 (1838) 8 Car. & P. 475 at 479.
10 (1838) 8 Car. & P. 475 at 555.
11(1988) 165 CLR 543.
12 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.
13 Ibid [25].
14 Bird v Ford [2013] NSWSC 264.
