Witness Immunity
24 The witness immunity principle was explained by Gleeson CJ, Gummow, Hayne and Heydon JJ in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (a case concerned with advocate's immunity) at [39] (citations omitted):
From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation [(1997) 189 CLR 520 at 565]:
The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.
25 Their Honours referred to the rationale for the principle in the following way at [41] and [42] (citations omitted):
[41] Statements can be found in the cases that the immunity of witnesses serves to encourage "freedom of expression" or "freedom of speech" so that the court will have full information about the issues in the case. Statements also can be found that place the immunity of those who participate in court proceedings on the desirability of avoiding baseless actions being brought against those who were merely discharging their duty, but these considerations are advanced in answer to another kind of argument. As Fry LJ said in Munster v Lamb:
Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?
The answer proffered (that it is more necessary to prevent the baseless action than provide for the kind of case described) may well suffice to meet the point. But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises.
[42] In R v Skinner, Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government.
26 The rationale for the principle was considered by Bathurst CJ in Young v Hones [2014] NSWCA 337 at [15] to [18]:
[15] In Giannarelli the existence of the advocate's immunity was affirmed. Mason CJ described at 533 the foundation of the principle as being that mischief would result if those engaged in the administration of justice were not able to speak freely (see also 569-570 per Wilson J and 595 per Dawson J).
[16] The immunity was also affirmed by the plurality in D'Orta at [39]-[40]. They referred at [41] to the fact that statements can be found in the cases that the immunity serves to encourage freedom of expression or freedom of speech. They also stated that the deeper consideration that lies beneath the principle is that determining whether the complaint against the witness is or is not justified requires relitigation of the matter out of which the complaint arises.
[17] Two matters arise from those cases. First, it is not open to this court to vary or engraft exceptions to the immunity. Second, once it is appreciated that, like advocate's immunity, the principle underlying the immunity is the principle of finality, there is no logical reason to exclude experts from its scope.
[18] There remains the question to what extent the immunity extends to out of court work conducted by experts. The immunity of witnesses from activities engaged pre-trial have been considered in a number of cases. However, in dealing with those cases it is important to bear in mind the underlying rationale for the immunity in this country.
27 Ward J stated at [236]:
The rationale underlying witness immunity was considered by the High Court in D'Orta in the course of the Court's consideration of advocate's immunity. The plurality there noted (at [39]): that it mattered not how the action against the witness was framed; that witness immunity was an immunity from suit; and that the immunity extended to preparatory steps. Their Honours emphasised that witness immunity was ultimately, although not solely, founded in considerations of the finality of judgments and that "the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises".
28 The extent to which witness immunity attaches to acts which are preparatory to trial was examined in detail by Beazley JA in Griffiths. In Griffiths, a substance analyst undertook analysis of a seized substance that the police believed to be a prohibited drug. The analyst issued a certificate stating that the relevant substance was a prohibited substance. The certificate of analysis was used by the Commonwealth in the prosecution of Mr Griffiths, who was found guilty. Mr Griffiths was later acquitted on the basis that the analyst had manipulated the testing. Mr Griffiths brought proceedings against the analyst. Beazley JA, with whom Mason P and Young CJ in Eq agreed, held that witness immunity applied to protect the analyst from suit.
29 Beazley JA held that whilst there was no doubt that the immunity extended to conduct beyond the giving of evidence in court, for the immunity to apply, there must be a connection with the evidence that is to be given in court; it is not a requirement for application of the immunity that evidence is in fact given: Griffiths at [84].
30 In reaching her conclusion that witness immunity applied to the analyst, Beazley JA stated:
[91] In my opinion, Mr Ballard was not "investigating" the crime alleged against Mr Griffiths. He was analysing a sample of a substance that had been seized from Mr Griffiths' premises and which was to have been used in furtherance of a prosecution, if the substance was a prohibited substance. Lord Hope of Craighead's remarks (cited at 284 [73] supra [in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 633]) make particular mention of people in Mr Ballard's position and states they would be protected by the immunity.
[92] The matter may be tested by considering it in this way. It seems that the certificate of analysis was not tendered in Mr Griffiths' trial. Rather, he was called to give evidence and gave evidence of all of the tests that he conducted and the manner in which he conducted those tests. The action against Mr Ballard is based upon the manner in which he conducted those tests. Although Mr Griffiths has advanced a number of possible arguments as to why those tests may not have been carried out with a view to, or in furtherance of, the prosecution case, the fact is, Mr Ballard gave evidence of all of them. Nor was there any suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. And, in my opinion, there is no possible basis to suggest that his earlier or later testing was carried out for any other purpose unassociated with the prosecution.
[93] The matter may then be tested further by having regard to the underlying rationale for the immunity. As was stated by the High Court in D'Orta-Ekenaike, the immunity is founded ultimately in consideration of the finality of judgments. If this matter were to proceed to trial, it would involve a suit based upon negligent conduct of a series of tests carried out. Those tests were relied upon by the Crown for the purpose of proving that the substance found in Mr Griffiths' possession was methcathinone. Mr Ballard gave evidence of all of the testing that he undertook. That could only have been relevant and admissible evidence if the whole of the testing was relied upon as proof that the substance was methcathinone. Accordingly, a trial based upon the negligent performance of that testing would involve the retrial, not only of the evidence given at trial but also of the preparatory steps taken to prove an essential ingredient of the charge brought against Mr Griffiths, namely, that the substance was the prohibited substance methcathinone.
[94] It follows in my opinion, that even without resort to the English authorities, this case falls within the principle stated by the High Court as to the application of the immunity. When regard is had to the English authorities, then, on balance, the claim against Mr Ballard would have the protection of the immunity, on the basis of the principles discussed in those cases.
31 The application of witness immunity to out of court work by an expert witness was also addressed in Young. In that case, the applicant made claims of negligence against her former solicitors, barrister and expert engineer and engineering firm, in relation to earlier Land and Environment Court proceedings. The Land and Environment Court proceedings had settled on the basis that the applicant's neighbour would undertake certain "rectification works" which had been recommended by the expert engineers at an expert conclave which had taken place immediately before the settlement. The expert engineer claimed that he was immune from suit on the basis of witness immunity. The Court of Appeal agreed, dismissing the appeal against the expert engineer on this basis.
32 After examining various authorities concerning the extent to which the immunity applies to out of court work conducted by experts, Bathurst CJ at [35] stated that the test for witness immunity was the same as the test for advocate's immunity:
This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate's immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court: D'Orta at [86].
33 The passage of the plurality in D'Orta referred to by Bathurst CJ was:
Again, we consider that no sufficient reason is proffered for [reconsidering the decision as to advocate's immunity in Giannarelli]. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or "work done out of court which leads to a decision affecting the conduct of the case in court" (124) or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, "work intimately connected with" work in a court. (We do not consider the two statements of the test differ in any significant way.)
34 Dr Borody placed emphasis on the articulation of the test as connection with "work in court".
35 In Young, Ward JA (with whom Emmett JA agreed) stated (emphasis added):
[251] In Griffiths, her Honour did not frame the test by reference to the purpose or intention, subjective or otherwise, of the person undertaking the work about which complaint is made. Rather, her Honour looked to see whether there was a connection between the work performed and evidence given or to be given in the subsequent hearing.
[252] His Honour [the trial judge in Young], while not expressly articulating the test adopted for determining whether the work undertaken by the engineer respondents was of a preparatory kind in connection with the litigation so as to come within the scope of the privilege, clearly had in mind (as evident from what his Honour said at [186]) that it was necessary for there to be a connection between the work in question and steps taken or to be taken in the conduct of the litigation. In particular, his Honour had regard to the connection between the advice "given in the course of proceedings" and the settlement which occurred ([189]) by reference to two matters: the report and "appropriate remediation plan" being "made available in the litigation" and the participation of the fifth respondent in the expert conclave that resulted in the production of the detailed drainage works document that formed part of the consent settlement in the proceedings ([186]).
[253] His Honour did not err in the test (of "connection" between the work and the litigation) that was applied in order to determine whether the work undertaken by the engineer respondents fell within the reach of witness immunity.
36 In determining whether a person is immune from suit on the basis of witness immunity, the court must consider the connection between the impugned conduct and the relevant court proceedings. Whether this enquiry is framed as considering the connection between the work done by the expert witness and:
the work in court: Bathurst CJ in Young at [35]; or
the steps taken or to be taken in the conduct of the litigation: Ward JA (with whom Emmett JA agreed) in Young at [252]; or
the evidence given or to be given in the hearing: Beazley JA in Griffiths at [84] and [92];
there is no reasonable prospect of successfully arguing that Dr Vickers is not immune from suit on the pleadings in the Amended Statement of Claim by reason of the principles concerning witness immunity.
37 Dr Vickers' report was intimately connected with the District Court proceedings. He was retained in connection with those proceedings for the purpose of giving evidence in them. The report was necessary for the commencement of those proceedings. The Vickers Report was filed to satisfy the requirement in r 31.36(1) of the UCPR that an expert report accompany a statement of claim commencing a professional negligence claim of the relevant kind - see: [10] above. It was not just closely connected with the District Court proceedings; it was an essential step in bringing those proceedings.
38 Further, the Vickers Report was part of the evidence relied upon in connection with the District Court proceedings, albeit it had not by the time of settlement in fact been adduced into evidence. This is made clear by the terms of the letter of instruction, the terms of the Vickers Report and the fact that it was filed with the statement of claim commencing those proceedings.
39 It was submitted for Dr Borody that the Vickers Report was not prepared as evidence, but rather was prepared to provide an opinion to Ms X for the purpose of assessing whether Ms X had grounds to commence proceedings. It was submitted that the report was wholly "preparatory" to proceedings, or at least insufficiently connected with them, because no proceedings had been commenced at the time the report was sought or obtained.
40 A not dissimilar issue arose in Griffiths, where the fact that the analyst's work was likely used both to inform the decision to commence proceedings and as evidence in contemplated proceedings did not prevent witness immunity attaching to the analyst's conduct. The fact that the Vickers Report was prepared before the proceedings were commenced, and would likely have been used to determine whether there were adequate grounds to commence proceedings and, if so, to file with the statement of claim, does not prevent the principles of witness immunity from being invoked. Indeed, in the circumstances of this case, it establishes the operation of those principles.
41 In Watson v M'Ewan [1905] AC 480 (in a passage referred to by Beazley JA in Griffiths at [52]), the Earl of Halsbury LC (Lord Justice James and Lord Justice Robertson agreeing) stated (emphasis added):
It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove.
42 Dr Borody referred to various statements in the authorities said to show that the case could not be described as one which had no reasonable prospect of success within the meaning of s 31A(2) of the FCA Act. Dr Borody referred to [50] of the decision of the majority of the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, where their Honours stated:
The insufficiency of a mere historical connection between an advocate's work and a litigious event may be illustrated by reference to negligent advice to commence proceedings which are doomed to fail. No one suggests that the immunity is available in such a case. Likewise, advice to cease litigating or to continue litigating does not itself affect the judicial determination of a case.
43 It was submitted that Dr Vickers provided advice about whether to commence the District Court proceedings. However, that is not the pleaded case or a reasonably arguable characterisation of the facts adduced on this application. The pleaded case is that Dr Vickers was retained to provide an opinion about Dr Borody's assessment and treatment of Ms X, not that he was retained to advise in relation to the commencement of proceedings.
44 In any event, Attwells does not address the present situation. No doubt a lawyer who gives negligent advice to commence proceedings might be liable in negligence for that advice. The present situation is quite different. Dr Vickers was retained by lawyers to provide a report to the Court, in accordance with the procedural requirements of the Court and the Court's code of conduct, for the purpose of commencing proceedings on behalf of the lawyer's client should those lawyers so advise.
45 Dr Borody also referred to the comments of Chadwick LJ in Stanton v Callaghan [2000] 1 QB 75 at 100. This passage was referred to (but not adopted as an authoritative statement of principle) by Bathurst CJ in Young in the context of considering the extent to which witness immunity extends to out of court work conducted by experts. The reference is at [25] in the following part of the Chief Justice's reasons (emphasis added):
[24] In Stanton v Callaghan [2000] 1 QB 75 the plaintiffs engaged the defendant, a structural engineer, to prepare a report on repairs necessary to a property. The plaintiffs' insurers rejected a claim for the cost of the work and proceedings were commenced. The defendant was retained as an expert but following a meeting with the insurers' expert he changed his report. The plaintiff brought proceedings claiming the defendant was negligent in accepting as adequate the work proposed in the joint report. It was held that the defendant was immune from suit. It does not appear to have been alleged that the engineer was negligent in the preparation of his original report.
[25] Chadwick LJ, after reviewing the authorities, stated the following principles in relation to experts' reports at 100:
What, then, is the position in relation to expert reports? It seems to me that the following propositions are supported by authority binding in this court: (i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed.
[26] However, his Lordship was prepared to accept at 101-102 that the immunity extended to a report prepared for the purpose of exchange prior to trial even if a trial of the proceedings did not take place.
[27] Otton LJ, after referring with approval to Palmer stated at 104 that the relevant test was one "of principal and proximate connection". Nourse LJ, after referring to Palmer said at 109 that a substantial purpose test might be preferred.
46 Dr Borody submitted that the third proposition made by Chadwick LJ (emphasised above) provided a basis for concluding that Dr Borody's case should not be summarily dismissed because it could not be said that it enjoyed no reasonable prospect of success. This argument is similar to that made by reference to [50] in Attwells and suffers the same fate.
47 In my view, assuming for the purposes of argument only, that the third proposition reflects the law in Australia, it is not applicable to the present circumstances. Dr Vickers was not retained to give advice about the merits of the potential plaintiff's claim. Dr Vickers was, as Dr Borody pleaded at [13] of the Amended Statement of Claim, "retained … to give … an opinion as to [Dr] Borody's … medical assessment and treatment" of the proposed plaintiff. Whether the claim in negligence had any merit was a matter for the advice of the proposed plaintiff's lawyers who had retained Dr Vickers.
48 Dr Borody also relied upon the case of Palmer v Durnford Ford [1992] QB 483, where Deputy Judge Tuckey stated at 488-489:
The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] AC 198 in the analogous but not identical situation of the advocate's immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.
I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts …
49 There is no "dominant purpose" test as such in Australia. Purpose might be relevant in determining the connection between the impugned conduct and the relevant proceedings, but it is not a necessary criterion. It is not necessary for the immunity to be engaged to establish that the dominant purpose of the conduct was one of giving evidence, albeit - if it were established - that would go a long way to establishing the immunity applies. In the present case, the purposes for which the Vickers Report was prepared included it being filed as evidence to be relied upon in the proceedings and to satisfy the requirement in UCPR r 31.36(1). The only reasonable conclusion on the case as pleaded is that there is a sufficient connection to the District Court proceedings to establish that witness immunity applies. The fact that the report would naturally also be relied upon by the lawyers who had retained Dr Vickers in deciding whether to commence proceedings does not disengage the witness immunity principle. Indeed, in the circumstances of this case, it supports the connection between the report and the District Court proceedings. I note that Palmer was considered, and not adopted, in Young at [22] (Bathurst CJ) and [248] to [251] (Ward JA, with whom Emmett JA agreed).
50 Dr Borody also submitted that witness immunity did not extend to proceedings in professional tribunals. It may be accepted that the immunity may not apply so as to preclude disciplinary proceedings in professional tribunals in respect of evidence given by the professional - see: Meadow v General Medical Council [2007] 1 All ER 1 at [44]-[46]; Scanlon v Director-General, Department of the Arts, Sport and Recreation (2007) 70 NSWLR 1; Griffiths at [97]; Ollis v New South Wales Crime Commission (2007) 177 A Crim R 306 at [53]. The proceeding commenced in the District Court was not of that nature.