Maxwell-Smith v S & E Hall Pty Ltd

(2014) 86 NSWLR 481; [2014] NSWCA 146

NSW Court of Appeal

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Interrogate

Catchwords

1. Professions and Trades
2. › Lawyers
3. › Duties and liabilities
4. › Duty of solicitor to former client after conclusion of retainer
5. › Whether continuing duty of loyalty owed
6. › Duty confined to protection of former client's confidences and integrity of judicial process
1. Torts
2. › Collateral abuse of process
3. › Elements of the tort
4. › Whether overt act or threat beyond initiating proceedings required
5. › Whether bankruptcy notice constitutes 'process' of a court
6. › Whether tort confined to court process
1. Torts
2. › Collateral abuse of process
3. › Parties liable
4. › Whether solicitor acting for party to proceedings can commit the tort
5. › Tort confined to party to the proceedings
1. Limitation of Actions
2. › Limitation periods
3. › Tort claims
4. › When cause of action accrues for collateral abuse of process
5. › Limitation Act 1969 (NSW), s 14(1)(b)

Quick Take

The tort of collateral abuse of process in Australia requires proof of an overt act or threat distinct from the initiation and prosecution of proceedings, and this is a substantive requirement, not merely evidential. A bankruptcy notice is likely not 'process' for the purposes of the tort because it is not a process of a court attended by judicial compulsion. The tort can only be committed by a party to the proceedings, not by the party's solicitor. After a solicitor-client retainer ends, the solicitor's duty to the former client is confined to protecting confidences and the integrity of the judicial process — there is no continuing duty of loyalty.