Man gives up only after suing lawyer for negligence in suing previous lawyer retained to sue lawyer before that

Hulme’s Case [2006] VCAT 109

The applicant’s case was dismissed for want of prosecution, or to use the language of the old Legal Profession Tribunal, was found to be abandoned. There was no counsel assisting the Tribunal; the parties appeared in person. Mr Howell noted that the Legal Profession Tribunal’s procedure in relation to want of prosecution and VCAT’s procedure under s. 76 of the VCAT Act was similar.

It appears that the Registrar of the Legal Profession Tribunal had met personally with the applicant in the absence of the respondent and had then written a letter setting out an “agreement” between them by which the applicant was to write “comprehensive” histories of his troubles.

It is a sad story which began with the sale by the applicant of some meat for $7,000. The applicant’s company never got paid. It is said that the applicant then retained a laywer to chase the cash, though it seems likely the company did so, and that accordingly the company should have been the applicant. Mr Howell had in an earlier proceeding set aside the bill that lawyer rendered in 1991. Then the applicant retained a second lawyer to get the cash from the purchaser, or alternatively as damages for negligence from the first solicitor. That came to nothing and a second Tribunal proceeding failed for want of jurisdiction, because the second solicitor did not hold a practising certificate at the relevant time. Six years after the meat was sold, the applicant hired the respondent, the debt having become statute barred. Five years of prompting was said not to have been able to rouse the respondent from his slumber.

Three years after ceasing his attempts to have the respondent do something, the applicant made a pecuniary loss dispute resolution request to the Law Insitute, and the matter progressed to the Legal Profession Tribunal. It was soon after the referral that the Registrar had his meeting and wrote his letter. The applicant said the fourth solicitor he retained (to prosecute his suit against the third solicitor for negligence in prosecuting his claim against the second solicitor for negligently failing to sue the first solicitor for professional negligence) did nothing. Mr Howell waited four years before striking the matter out for want of prosecution on the basis (i) of the lack of action alone and (ii) on the basis of prejudice to the respondent:

“because the debt was incurred in 1987 or earlier, there was a need for action to be taken promptly in 2002 because the chances of recovery of the debt would be relevant to an assessment of compensation if [the respondent] was found to have acted negligently or contrary to the instructions given by [the applicant].”

Mr Howell said “I regard [the respondent] as likely to be disadvantaged by the passing of time in seeking evidence as to the chances of recovery from the debtor before the debt became statute barred in 1993 or earlier.”

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