1. The main focus of the argument put Mr Magowan was on the ability to rely on the immunity in support of the claim by Mr De Kretser for debt. He contended that whilst the immunity could be relied upon as a defence to a claim for damages for negligence against a lawyer, it cannot be relied upon to defeat a defence alleging negligence in response to a proceeding for recovery of a debt for unpaid fees. He said the immunity was an immunity from suit, not an immunity which can be invoked in aid of a claim for debt. He said he was not able to find any authority to support this contention, but it followed from first principles.
2. The implication of this was that even if the immunity applied as a defence to Mr Billing's claim of negligence, the immunity would not defeat Mr Billing's defence of negligence in relation to the claim by Mr De Kretser for $3,795 fees.
3. Mr Magowan nevertheless contended that parts of Mr Billing's civil claim at VCAT were not defeated by the immunity, or at least that there were enough uncertainties in relation to the matter or to defeat the s 75 application.
4. He abandoned one component of the claim his client had made in the original application to VCAT, namely $2,500, being compensation sought for $500 Mr Billing had paid his wife under the spousal maintenance order prior to the final order being made, plus $2,000 in arrears that was 'accounted for in the final settlement'. This left claims for three amounts: $2,000 (claimed back from the 15 February 2012 bill for $3,259.30) $2,800 (being solicitor's fees said to have been incurred in overcoming the effect of the spousal maintenance order) and $2,500 (being counsel's fees for the same purpose). These figures total $7,300.
5. Mr Magowan contended that it was not the case that if the immunity applied VCAT no longer had jurisdiction to consider his client's claims.
6. He submitted that it was not a simple exercise to 'unpick' the items of work done by Mr De Kretser which were infected by negligence, and to which the immunity did not apply, from those which were properly recoverable by the solicitor.
7. Mr Magowan also suggested that the disclosure requirements of the LP Act had not been complied with, and so s 3.4.17(1) of the LP Act applied, with the effect that his client 'need not pay' Mr De Kretser's bill.
8. He also referred to the decision in Nagy v Gilbert Bell trading as Gilbert Bell & Co.[1] In that decision the Tribunal found that despite being purportedly made under the FTA, the claim in that case was in fact a civil claim under the LP Act, and the Tribunal dealt with it as such. He referred to the possibility of seeking an extension of time to run Mr Billing's damages claim under the LP Act and running it in tandem with an application to set aside the costs agreement.
9. Mr Magowan then suggested that given that the lawyer's actions the subject of the Nagy case clearly fell within the scope of the immunity, and because the Tribunal did not make any reference to the immunity in that case, it can be concluded that the LP Act provisions exclude the immunity.

1. Mr De Kretser's position is firstly that he did not act negligently or in breach of his retainer. He said that in preparing the Financial Statement, he acted on his client's instructions. Mr Billing confirmed that the Financial Statement was true and correct as part of an affidavit he had sworn in the Family Court proceedings. Mr De Kretser said in his affidavit filed with VCAT, that he cross examined Mr Billing's former partner on her Financial Statement, and put matters to her on Mr Billing's instructions. He also referred to advice he gave Mr Billing about his prospects of success in light of her relatively poor financial position, and responsibility to care for a four year old child with an ongoing medical condition.
2. However, Mr De Kretser's contention in this hearing was that advocate's immunity provided a complete bar to both the FTA claim made by Mr Billing, and to Mr Billing's defence to his claim for unpaid fees.

1. The High Court confirmed that the principle of advocate's immunity applied in Australia in Giannarelli v Wraith.[2] It held that at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court or for work out of court which leads to a decision affecting the conduct of the case in court. The High Court reaffirmed that the doctrine applies in D'Orta-Ekenaike v Victoria Legal Aid.[3] Gleeson CJ, Gummow, Hayne and Heydon JJ said:

...the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as the result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the re-opening of controversies would exist, but one of an inefficient and anomalous kind.[4]

1. In Goddard Elliott v Fritsch[5] Bell J said:

The scope of the immunity in Australia was identified in Giannarelli and confirmed in D'Orta-Ekenaike. According to Mason CJ in Giannarelli, the immunity applies to the in-court work of an advocate and certain out-of-court work as well. In relation to work done out of court, the principle is that the immunity extends to 'work done out of court which leads to a decision affecting the conduct of the case in court'. In that connection, the Chief Justice approved the statement of McCarthy P in Rees v Sinclair that the immunity applied to work which was intimately connected 'with the conduct of the cause in Court'. In D'Orta-Ekenaike, Gleeson CJ, Gummow, Hayne and Heydon JJ said the tests pronounced by Mason CJ and McCarthy P did not 'differ in any significant way'. McHugh J held that lawyers owed 'no actionable duty of care in respect of out-of-court conduct that is intimately connected with in-court conduct. They do, however, owe actionable duties of care in respect of conduct that is not intimately connected with in-court advocacy.'

In recognition of the adverse consequences of the immunity for the equal enforcement of private rights and obligations, there is a principle of justification that the scope of the immunity should be no greater than is absolutely necessary to protect the public interest.[6]

1. The legal services complained about in this case consisted primarily of work done by Mr De Kretser in court as an advocate. They also include other work which was preparatory to the court appearances. It was not seriously contended on behalf of Mr Billing that the preparatory work, including the drawing of the Financial Statement, was not 'leading to' the court appearances, or that it was not 'intimately connected' with them. I find the out of court work was sufficiently connected with the advocacy by Mr De Kretser, such that the immunity is not excluded on that basis.
2. I now turn to the submission on which Mr Magowan laid the most emphasis: that the immunity does not apply where a lawyer is seeking to recover his or her fees. I do not accept that contention. The immunity can be used to prevent challenges to claims about legal fees.[7] This has occurred in recent times in Foster James Pty Ltd v Dalton[8], in Maurice Blackburn v Burmingham[9], and in the NSW case of Attard v James Legal Pty Ltd.[10]
3. In Foster James, Ferguson J said:[11]

[35] It was submitted by Foster James that the immunity only prevents a lawyer from being sued for loss in relation to the conduct of the case. The contention is that it cannot apply in this case because Foster James' position is merely defensive - it does not seek to sue Mr Dalton.

[36] The High Court authorities do concern claims by clients against their lawyers. The judgments talk in terms of lawyers not being liable to be sued in damages by their clients and reference is made in some of the judgments to the influence that the potential for being sued for negligence may have on counsel. However, one should look at the central justification for the immunity as expressed by the majority of the High Court in D'Orta-Ekenaike; that is, that controversies, once resolved, are not to be re-opened. That justification alone must also apply in circumstances where the client seeks to raise as a defence to a claim for fees, the conduct of counsel of the type alleged by Foster James against Mr Dalton. The same vice of collateral agitation of the substance of the matter will arise where there is subsequent litigation between persons involved in the original litigation although not parties to it.

1. The High Court said in D'Orta-Ekenaike that the primary justification for advocate's immunity is that once resolved, controversies are not to be re-opened. And it indicated that this has broad effect: it extends to costs wasted through a lawyer's negligence.[12] There is nothing about the circumstances of this case (either in relation to the applicant's primary VCAT claim under the FTA, or in relation to his defence of negligence to the debt claim) which would take it outside the broad operation of the immunity.[13] To embark on consideration of the applicant's claim would inevitably re-open the controversy which was determined in the Family Court. Nor does the fact that the decision impugned was an interim one affect this conclusion.[14] The circumstances of this case are similar to those in Juanillo v McNab, McNab & Starke,[15] where one of the claims was that the solicitor had failed to include all relevant information in affidavits or a financial statement in family law proceedings, and so the client was allegedly required to pay more than would have otherwise been the case. The immunity applied.

1. I now turn to the other submissions put on behalf of Mr Billing as to why the application against Mr De Kretser should not be struck out.
2. The contention that VCAT still has jurisdiction even if the immunity applies does not advance the case, and in my view descends into semantics. To the extent the immunity applies to a particular claim, and is explicitly relied upon by the lawyer, then in practical terms, VCAT cannot proceed to determine that claim.
3. In relation to the suggestion that the LP Act may have excluded the immunity, there are two answers. First, this is not a claim under the LP Act. In Nagy, the claim was treated as such, in circumstances where it was brought to VCAT within the 60 day time limit, and in the context of s 4.3.2, which has the effect that claims under other enactments may not be brought while the civil dispute remains on foot. That is not the case here. The 60 day time limit for LP Act proceedings had passed when these proceedings were commenced under the FTA.
4. Second, as the High Court said in Lacey v Attorney-General (Qld):[16]

[There is a] presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities

In the absence of such a clear indication, I would not be prepared to find that advocate's immunity has been abrogated by implication for claims under the LP Act.

1. Any application to VCAT to set aside the costs agreement between the parties is a separate matter to these proceedings. If such an application was successful, in practical terms, the question would arise how the costs are to be dealt with in any event.
2. The upshot is that the 'uncertainties' Mr Magowan referred to dissolve in the face of the application of the immunity. Once it is clear the immunity applies, the case can be said to be misconceived or lacking in substance on the basis that it is 'manifestly hopeless, undoubtedly untenable or doomed to fail'[17]and so the test for the application of s 75 of the VCAT Act is satisfied.
3. I order that the applicant's claim against the respondent in this VCAT matter number C7921/2012 specifying a claim for $9,350 be dismissed.

1. I will also order that the matter be brought on for a short further hearing to consider how the remaining aspects of the case should be dealt with.

[1] [2010] VCAT 2038

[2] (1988) 165 CLR 543

[3] [2005] HCA 12; (2005) 223 CLR 1

[5] [2012] VSC 87 at [791].

[7] See Akram Karam v Aloe & Co Pty Ltd [2012] VSC 609, per Pagone J, at [12].

[8] [2010] VSC 327.

[9] [2009] VSC 20.

[10] [2010] NSWCA 311.

[11] [2010] VSC 327 at [35] and [36].

[12] [2005] HCA 12; (2005) 223 CLR 1 at [83].

[13] For example, there is no application of the possibl_e_ exception in cases where proceedings were resolved by settlement without the exercise of judicial power in the determination of the issues in the case- Francis v Bunnett [2007] VSC 527 per Lasry J. Note this decision has been questioned in, eg, Naylor v Thompson & Co Pty Ltd & Ors [2008] VCAT 1724, per Ross J.

[14] [2005] HCA 12; (2005) 223 CLR 1 at [81]- [83].

[15] [2010] VCAT 109 per Howell SM.

[16] [2011] HCA 10; (2011) 242 CLR 573 at [43], referring to Project Blue Sky v Australian Broadcasting Authority. (1998) 194 CLR 355.

[17] Kyriazis v Department of Justice [2010] VCAT 1788.