Applicable legal principles
21Much attention has been paid over the years to the scope of the advocate's immunity, commencing in modern times with Rondel v Worsley [1969] 1 AC 191. It has routinely been held to extend to pre-trial work not occurring in the course of a hearing, but which is described as "intimately connected" with the conduct of the hearing: Rees v Sinclair [1974] 1 NZLR 180 at 187 (McCarthy P). It did not apply to a failure to take steps to commence litigation against a putative tortfeasor within the limitation period: Saif Ali v Sydney Mitchell & Co [1980] AC 198. these decisions were followed in Australia: Giannarelli v Wraith [1988] HCA 52; 165 CLR 543.
22However, there was over the years on-going debate as to the true foundation of the rule and criticism of the imprecision, in relation to work done out of court, of the language of 'intimate connection' or, as expressed by Mason CJ in Giannarelli at 560, "work done out of court which leads to a decision affecting the conduct of the case in court": see Attard v James Legal Pty Ltd [2010] NSWCA 311 at [5]-[8] (Giles JA). These issues were reviewed by the House of Lords in Arthur J S Hall & Co v Simons [2002] 1 AC 615, the separate advocate's immunity being abandoned in favour of reliance on principles of abuse of process which were held to underlie the legitimate operation of the immunity. That course has been followed in New Zealand: Lai v Chamberlains [2006] NZSC 70; [2007] 2 NZLR 7.
23A similar reconsideration of basic principle has been undertaken in Australia, but with the result that the doctrine of the advocate's immunity has been retained: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1. However, the justification is now soundly rooted in a principled approach to the fundamental need in the administration of justice for finality of judicial determination, subject only to constitutional requirements found in the entrenched supervisory jurisdiction of the High Court and State Supreme Courts and statutory provisions for appellate or other forms of review. Those roots (which also form the basis of at least one aspect of abuse of process) will inform the scope of the rule, in particular in relation to pre-trial activities and omissions. The scope of the immunity is no longer to be determined by differences in language but by the tendency of the claim to result in re-litigation of a controversy which has been quelled.
24Thus, that which the appellant cannot challenge is the finding that he was not entitled to damages from his employer in relation to the claim of workplace injuries identified above. As explained in D'Orta-Ekenaike at [43], by Gleeson CJ and Gummow, Hayne and Heydon JJ:
"Once a controversy has been quelled, it is not to be re-litigated. Yet re-litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client."
25The concept last referred to, namely "damage to the client", is not limited to a failure to obtain a judgment for compensation in favour of the client. That is illustrated by the facts of D'Orta-Ekenaike itself. Mr D'Orta-Ekenaike had been charged with rape and, on advice from his lawyers, had entered a plea of guilty at a committal hearing: at [4] and [5]. He was committed for trial, and, on arraignment, entered a plea of not guilty. However, his earlier plea was led in evidence and he was convicted and sentenced to imprisonment: at [6]. The conviction was set aside, not on the basis that the plea should not have been led in evidence, but that the trial judge had failed to give appropriate directions about the use that might be made of the plea: at [7]. On retrial, he was acquitted: at [8]. In civil proceedings brought against the lawyers acting for him at the time he entered the plea of guilty, he claimed damages for "loss of liberty during the period of his imprisonment between conviction at his first trial and subsequent quashing of that conviction, loss of income during that period and beyond (because of his psychological condition), psychotic illness, and the costs and expenses of the appeal, the retrial and the civil proceeding": at [11].
26Because the appellant in the present case made no claim for recovery of amounts expended by way of legal costs, it is not necessary to consider the circumstances in which D'Orta-Ekenaike will preclude such costs being recovered from a third party as damages, in accordance with the principles referred to by Devlin LJ in Berry v British Transport Commission [1962] 1 QB 306 at 321, applied by the Full Court of the Federal Court in Gray v Sirtex Medical Ltd [2011] FCAFC 40; 193 FCR 1 at [16]-[24] (Bennett, Gilmour and Gordon JJ).
27Having been acquitted, Mr D'Orta-Ekenaike was not challenging any final result in the proceedings, but his claim for damages did involve the contention that, but for the negligent advice to plead, he would not have been convicted at the first trial. This was described in the reasoning in the High Court as a challenge to an "intermediate outcome": at [75].
28In considering whether such a claim might fall outside the scope of the immunity, the plurality accepted that incompetence of counsel might provide a basis for setting aside a judgment and orders at trial if it had created a miscarriage of justice: at [82]. (Although the reasoning dealt with a criminal trial, the same result may follow in respect of a civil matter.) The reason for not carving out an exception to the area of the immunity in such a case was that "[i]n general ... if an intermediate result is set aside, it will be for reasons unconnected or, at best, only indirectly connected, with the client's contention that the advocate was negligent": at [82]. Nor was it thought appropriate to permit exceptional cases, in which an appeal might have depended entirely upon the negligence of the advocate. Even if the intermediate result had been set aside on appeal, a civil claim in negligence would still require a reconsideration of the reasons for setting the first judgment aside and the extent to which the negligence of the advocate may have caused the first adverse judgment. This would involve not only re-litigation "of a skewed and limited kind", as explained at [45], but, in effect, an inquiry into the decision-making process at the first trial.
29Such inquiries may, of course, have to be made in the course of appellate decision-making: for example, an appellate court may have to determine, as best it can, whether wrongly excluded or wrongly admitted evidence would have materially affected the outcome of a trial: see, eg, Weiss v The Queen [2005] HCA 81; 224 CLR 300. However, the appellate process is, as the Court noted in D'Orta-Ekenaike, an established exception to the principle of finality in respect of judgments at trial. The fact that such inquiries may be undertaken in the course of an appeal does not require their adoption in collateral challenges to a trial judgment.
30The High Court also rejected the contention that a claim for wasted costs should fall outside the immunity, "lest a dispute about wasted costs become the vehicle for a dispute about the outcome of litigation in which it is said that the costs were wasted": at [83]. In criminal proceedings there was no entitlement to recover costs from the other party, the wastage of costs being, accordingly, purely a matter between the client and the advocate. Nevertheless, in order to demonstrate a causal link between the negligence and the incurring of costs, the client might need to demonstrate how the impugned conduct or omission would have affected the outcome at the trial.
31Although the High Court in D'Orta-Ekenaike retained the concept of "advocate's immunity" the fact that it was squarely founded upon principles relating to the administration of justice and the role of litigation within the constitutional structure of government, would have permitted a different label to be adopted. It will remain to be seen how far, in practice, the approach adopted in Australia will differ from that in England and Wales and in New Zealand. As explained by Tipping J in Lai, members of the House or Lords in Arthur J S Hall variously described the willingness of the law to tolerate civil proceedings impugning the result of a criminal trial. Tipping J himself accepted that "a civil challenge to a subsisting conviction is the paradigm of an abuse of process" (referring to the judgment of Lord Steyn in Arthur J S Hall) while expressing doubt as to how there could be circumstances in which "the epitome of abuse" could ever not be an abuse. In principle, there is a degree of flexibility in the approach adopted in England and New Zealand, which is rejected by D'Orta-Ekenaike.
32It is likely that different results will follow from the differing approaches. Although in Lai v Chamberlains the underlying circumstance did not receive close attention in the Supreme Court, it is clear that they would have been covered by the immunity in this country. Mr and Mrs Lai, together with a company in which they were interested, were defendants in proceedings in the New Zealand High Court. At the conclusion of the hearing, a question arose as to whether the Lais would consent to a judgment against them personally, in the event that the Court found against their company. Through their solicitor, Mr and Mrs Lai advised the Court that they would personally guarantee payment of any judgment against the company: Lai v Chamberlains [2003] 2 NZLR 374 at [4] (Salmon J). In the result, judgment was entered against the company and against Mr and Mrs Lai personally. The claim brought by them against their solicitors, on the basis of negligent advice, sought to recover the loss resulting from the judgment wrongly entered against them. Their claim succeeded.
33None of these matters need be explored further, the only question arising in the present case being the extent to which the appellant can identify issues which do not involve reagitation of the District Court trial and judgment. There was no intermediate outcome, set aside on appeal. Nor is it necessary to explore the extent to which the present claims could have been agitated on appeal.