I have been saying for a while now that Schapelle Corby’s saga is a case study in the importance of choosing your legal team wisely. Moss v Eagleston [2014] NSWSC 6 provides further analysis of the performance of a lawyer selected by another of the players in the saga. That selection was a selection made by a man without the resources to pay for orthodox representation and who obtained rather unorthodox representation.
The decision examines the scope of a duty of care, including by reference to an argument that pro bono work requires a lower duty of care, and the appropriate response to late assertions of the defence of advocates’ immunity, and demonstrates how the courts will deal with a claim of loss suffered as a result of a failure to provide promised legal representation at a trial.
William Moss, also known as William Miller, is a former criminal. You can see him and hear him in this video. He says that he was supposed to pick up a package in return for a substantial sum and that shortly after Schapelle Corby’s arrest, he was told not to bother because it had ended up in Bali. He believed that these facts strongly support Ms Corby’s protestations of innocence. The Daily Telegraph published the claims. He says they ratted on a promise to pay him $250,000, or at least that they conned him into divulging his claims to them in the expectation of receiving that sum. They then published articles which were defamatory of him with the imputations that he was a small time shyster lying to get cash. So he approached lawyers. Quite a few of them. Finally he found one who would act for him: the firm Reimer William Winterson of Penrith. They sent a letter of demand for damages for breach of an oral agreement. The publishers denied the agreement. The firm ceased to act.
But a junior lawyer at the firm decided to do a bit of moonlighting and drafted a statement of claim exclusively for breach of an oral contract for Mr Moss in his personal capacity, outside the auspices of the firm. On Mr Eagleston’s version of events, he did so pro bono, because he felt sorry for Mr Moss. But the Court found that there was a financial motivation. Moss proposed what sounds remarkably like a contingency fee:
‘Mr Eagleston would receive $80,000 if Mr Moss recovered $250,000; $60,000 if Mr Moss recovered $200,000; $50,000 if Mr Moss recovered $150,000 and $20,000 if Mr Moss recovered $100,000.’
Justice McCallum found at [54] that Mr Eagleston accepted this arrangement for a time. Mr Eagleston had denied that, and asserted that he owed no duty of care to Mr Moss because he was assisting him pro bono. Her Honour gave the latter argument short shrift at [81]:
‘If it was intended to maintain the original contention (set out in the statement of issues) that there is no duty of care, or a lower standard of care, in the case of services provided on a pro bono basis, that proposition must be rejected, in my view. The degree of care and skill required in the performance of a professional task cannot logically be informed by the extent of remuneration which the lawyer agrees to accept for the task. The task is the same in any case. No lawyer is obliged to undertake work on a pro bono basis, but those who choose to do so must in my view be held to the same standard of care as those who request payment for their services.’
Anyway, though her Honour found that it ought to have been obvious that the articles were defamatory of Mr Moss, and though a reasonably competent solicitor would have advised that an application to extend the time in which to commence defamation proceedings had reasonable prospects of success, and though Mr Moss had told Mr Eagleston’s principal at Reimer William Winterson that he believed the newspaper had defamed him, conned him and done a hatchet job on him, and though the principal did not give evidence, and though Mr Moss gave evidence that he posted and faxed to Mr Eagleston a hand-written note which said ‘please if your (sic) going to help me, and sue, I want in there conning of me and defaming and hatchit (sic) job on me’ which was received by the firm, and though Mr Eagleston was aware that Mr Moss had, in a home-made letter of demand sent by him to the publishers alleged defamation, and even though he in fact turned his mind to the possibility of a defamation claim and rejected it by a process of reasoning which did not commend itself to her Honour, she found that though the duty of care in tort could be broader than that required by the scope of the retainer (i.e. that there could be a ‘penumbral duty’), in the particular circumstances of this case, the duties of care were confined to assisting the breach of contract claim, which is what the firm stated it was doing in a letter to Mr Moss.
So Mr Moss lost that part of his professional negligence case against Mr Eagleston alone (not the firm) which asserted that Mr Eagleston negligently failed to advise him about his rights under the law of defamation. That is because her Honour was not satisfied on the evidence that the expressions of desire to include defamation claims made to Mr Williamson and in the handwritten note had ever come to Mr Eagleston’s attention.
The choice of an action for breach of an oral contract required Mr Moss, a convicted criminal (The Age says that he had been jailed for fraud), to persuade the court that he entered into an oral contract which was denied by the publisher. That was a tough task. The newspaper articles were clearly defamatory, however, and only if the publisher could prove the truth of the imputations found in its newspaper articles would they be able successfully to defend that claim. The beauty of the claim for defamation over the claim for breach of contract is immediately apparent.
Mr Moss represented himself in the professional negligence case and in the breach of contract case against the publishers. One of his claims was that Mr Eagleston had failed to deliver on a promise he made to represent Mr Moss at the trial, if the matter went to trial. Mr Moss attempted to prove that the trial went off the rails because he was self-represented. McCallum J essentially found that the solicitor would not have increased the likelihood of Mr Moss’s success had he appeared (in part because any application to amend made at trial to include alternative causes of action probably would not have succeeded):
‘156In case that is wrong, it is again appropriate to consider whether a chance was lost and the value of the lost chance. As to whether a chance was lost, it is clear that, if Mr Eagleston was obliged to appear at the hearing, Mr Moss lost the chance for that to occur.
157However, I am not persuaded that the chance was of any value. The material tended by Mr Moss for the purpose of establishing the ways in which the hearing allegedly went off the rails due to his being unrepresented in fact persuaded me that Mr Moss laboured under no disadvantage for being unrepresented. Some of the material was directed to establishing that the judge dealt with Mr Moss in a manner different from the way in which he would have dealt with a legal representative. If there was any difference, in my view it was that the judge was at pains to ensure that Mr Moss was not disadvantaged by reason of being unrepresented.
158Mr Eagleston was, by the time of the hearing, a solicitor of less than one year’s experience. Although Mr Moss is not legally trained, he has the advantage often displayed in the case of litigants in person of knowing the facts very well and having a strong determination to succeed.
159Further, my consideration of the reasons for decision of Judge Delaney has not persuaded me that the result in the case would have been any different had Mr Moss been legally represented. On balance, I am not persuaded that, if Mr Moss lost the chance to be legally represented at the hearing, that lost chance was any value.’
It is interesting that her Honour chose to adopt the loss of a chance principle in analysing whether any breach of a contractual promise to appear in court caused any loss.
