The appellant was convicted after trial of a serious sexual offence against a child. The respondent acted as the appellant's counsel at that trial until her retainer was terminated by the appellant. The appellant successfully appealed against his conviction on the ground that a miscarriage of justice arose in part from the respondent's failure to obtain critical evidence and cross-examine the child complainant on that evidence. The appellant was subsequently acquitted on retrial.
The appellant then commenced the primary proceedings against the respondent alleging that the respondent's negligent conduct of his criminal defence caused him to be incarcerated for 15 months between his conviction and the orders made on appeal. The primary judge awarded summary judgment against the appellant in favour of the respondent on the basis that the appellant's negligence claim fell squarely within the doctrine of advocate's immunity.
The appellant now appeals from the award of summary judgment on various grounds. For the following reasons, the primary judge's decision was plainly correct having regard to binding High Court of Australia decisions dealing with the principle of advocate's immunity from suit. None of the appellant's grounds of appeal has a reasonable prospect of succeeding. The appeal must be dismissed.
[2]
The appellant was charged on indictment in the District Court of Western Australia with one count of sexually penetrating the complainant, a child under the age of 13 years, by penetrating her vagina with his finger. The offence was alleged to have been committed on or about 3 February 2012 in a suburb of Perth. The appellant pleaded 'not guilty' to that charge and engaged the respondent to represent him at trial.
The complainant's evidence at trial included two visually‑recorded interviews conducted on 23 September 2013 and 8 May 2014. The account given in the interview of 23 September 2013 was that the offence occurred on 3 February 2012, on the evening after the then 11‑year‑old complainant returned from a camp. Because it was a very hot night, the complainant slept naked that night. She awoke to find the appellant lying beside her in the bed, penetrating the complainant's vagina with his finger. The complainant made an entry in her diary the following morning, 4 February 2012, that the appellant 'did something last night'. She later crossed the entry out because she did not want to remember it.
Prior to trial, the appellant told the respondent of the existence of meteorological records which were inconsistent with the complainant's account. The records showed that the maximum temperature in Perth on 3 February 2012 was 22 degrees Celsius, and that the minimum temperature that night was 11 degrees Celsius. The respondent did not obtain the meteorological records, or cause them to be obtained, prior to trial. The meteorological records were easily obtainable in an admissible form.
The appellant's trial before a judge and jury commenced on 3 March 2015. The respondent appeared as counsel for the appellant on the first day of trial. In her evidence on 3 March 2015, the complainant affirmed the account of the offence described above. She confirmed that, on the night in question, she wore nothing to bed because it was summer and there was a heatwave. The respondent cross-examined the complainant and did not challenge the complainant's account of the weather on the night of the alleged offence.
The appellant dispensed with the respondent's services on the second day of trial. After unsuccessfully requesting an adjournment of the trial, the appellant represented himself for the balance of the trial. At the commencement of the proceedings on 4 March 2015, the trial judge advised the appellant that the weather records were inadmissible under the collateral evidence rule.
At the conclusion of the trial on 10 March 2015, the appellant was convicted of the charged offence and remanded in custody pending sentencing. On 7 May 2015, the appellant was sentenced to 3 years' immediate imprisonment with eligibility for parole.
On 28 May 2015, the appellant instituted an appeal against his conviction to this court. The appellant was self-represented in that appeal, which resulted in some delays in preparing the matter for hearing. The appeal was heard on 14 June 2016. At the conclusion of the hearing on that day, the court allowed the appeal, quashed the conviction and ordered a retrial. The appellant was released from custody on 15 June 2016.
This court subsequently published written reasons for making those orders.[1]
The court found that, given the appellant's instructions, it was incumbent on the respondent as counsel to take steps, or ensure that steps were taken, to obtain evidence of the meteorological records in admissible form.[2] Further, the appellant's instructions to the respondent provided a legitimate forensic basis for challenging the complainant's evidence about the temperature in cross-examination. The respondent's decision not to do so because it would not have assisted the defence case was an error of judgment on defence counsel's part which was incapable of being justified as a reasonable forensic judgment. A cross‑examination of the complainant based on the Bureau of Meteorology records almost certainly would have been very advantageous to the appellant.[3] The court observed:[4]
[3]
Evidence capable of undermining the fact that the offence occurred on a hot or very hot night (and, in fact, the night could not reasonably have been characterised in this way) was capable of significantly undermining [the complainant's] account of events. Moreover, if the alleged events did not occur on the evening of 3 February 2012, a further question arose as to the veracity of the diary entry said to have been made on 4 February 2012.
[4]
This court also found that the trial judge's comments discouraging the appellant, when self-represented, from obtaining meteorological records were erroneous. The respondent's and the trial judge's error as to the relevance of the meteorological records had the practical effect of depriving the appellant of the opportunity to run an important aspect of his defence. These unusual circumstances combined to constitute a material irregularity in the trial which could well have affected its outcome, and a miscarriage of justice.[5]
At a retrial which concluded on 11 October 2017, the appellant was found not guilty by a jury and acquitted of the charged offence.
[5]
By action instituted in the General Division of this court on 2 February 2021, the appellant claimed damages arising from his 'wrongful conviction' resulting from the respondent's negligence.
The appellant was self-represented in the primary proceedings. His pleadings were not confined to material facts and were in some respects prolix. In essence, the appellant claimed:
The respondent owed a common law duty to the appellant to exercise reasonable care, skill and diligence.[6]
The respondent breached that duty of care by failing to obtain meteorological evidence in admissible form, and to give due consideration to the significance of the evidence comprised in the prosecution case, prior to trial.[7]
Had the respondent obtained the meteorological evidence and considered its significance, she would have used it to challenge the complainant's evidence resulting in the respondent being found not guilty at the first trial.[8]
The respondent's negligence was a cause of the appellant spending 15 months in prison for an offence he did not commit.[9]
The respondent admitted owing the appellant a duty of care but denied breaching that duty or that any breach of duty caused the appellant to suffer any loss or damage. The respondent also pleaded by way of defence that:[10]
[6]
Further and in the alternative, if (which is denied) the [respondent] breached a duty owed to the [appellant] as alleged or at all then:
59.1 any such breach is not an actionable breach of duty at the suit of the [appellant] by reason of the doctrine of advocates' immunity, given that each act or omission to act that is alleged to constitute a breach of duty on the part of the defendant involves acts or omissions in preparation for, or were intimately connected with, work in court and had a functional connection with the exercise of judicial power, namely the recording of the conviction of the [appellant][.]
[7]
Accordingly, the respondent invoked the principle of advocate's immunity from suit contending it to be a complete defence to the appellant's claim.
The appellant's reply responded to the above pleading in the following terms:[11]
[8]
The [appellant] denies the assertion outlined in paragraph 59.1 of the Defence that advocate's immunity applies, and further pleads, at a minimum, that the [respondent] did not turn her mind to the matter; did not do the work to come to an [informed] decision; withheld a possibly exculpatory document that bolstered the [appellant's] defence; did not perform the function of an advocate that attracts the immunity; did not perform the function, regarding the weather evidence, necessary to attract the functional connection assertion; and this action is not a [collateral] attack on the final decision that is the basis of the immunity[.]
[9]
On 22 December 2023, the respondent applied for leave to bring an application for summary judgment and orders granting summary judgment and dismissing the action. The primary judge heard that application on 30 May 2024. In substance the basis of the summary judgment application was that the respondent had a good defence on the merits by reason of the principle of advocate's immunity from suit.
[10]
On 12 August 2024, the primary judge published written reasons for extending the time for the respondent to apply for summary judgment and awarding summary judgment to the respondent.[12]
The primary judge considered the summary judgment application on the basis that the respondent did breach the duty of care owed to the appellant in the way or ways alleged and that those breaches caused the appellant's imprisonment.[13]
The primary judge made the following critical findings:[14]
[11]
In my view, it is plain beyond reasonable argument that the [appellant's] claim turns on the [respondent's] failure to:
[12]
obtain prior to, and have available at, trial the weather evidence; and
use the weather evidence at the first trial to challenge the State case against the plaintiff.
[13]
The [appellant's] case is then that if breach or breaches had not occurred, he would have been acquitted at his first trial.
It seems to me plain that the [appellant's] case is that the work not done by the [respondent] out of court (the failure to gather the weather evidence) affected the conduct of the case in court or was intimately connected with the work in court at the first trial.
With respect to the submissions of the [appellant], the claim is squarely within the advocate's immunity.
[14]
The primary judge dealt with various authorities referred to by the parties and found that the respondent's application for summary judgment should be granted.
On 28 August 2024, after giving supplementary reasons dealing with various matters,[15] the primary judge made the primary orders which gave the respondent leave to bring an application for summary judgment out of time, entered summary judgment for the respondent and dismissed the action. The appellant was also ordered to pay the respondent's costs of the summary judgment application and the action.
[15]
On 23 September 2024, the appellant instituted the appeal from the primary orders to this court. As the appeal was filed out of time, the appellant requires and has sought an extension of time in which to appeal.
There was some delay in the appellant filing his appellant's case. An appellant's case was eventually filed on 10 February 2025 and amended with leave on 24 February 2025.
The appellant advances four grounds of appeal, which raise various issues and are somewhat prolix. The central contention of the grounds is in effect that the primary judge erred in finding that the principle of advocate's immunity applied to preclude the appellant's negligence claim against the respondent. Unless that conclusion can be successfully impugned, there could be no basis for this court to set aside the primary orders.
On 21 March 2025, the court convened pursuant to a Registrar's Notice to Attend to consider:
[16]
(a) The appellant's application for an extension of time within which to appeal; and
(b) Whether the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding; and
(c) Whether any of the grounds of appeal should be struck out on the basis that the ground does not have a reasonable prospect of succeeding.
[17]
The scope of the doctrine of advocate's immunity in Australia is principally established by three decisions of the High Court of Australia in Giannarelli v Wraith,[16] D'Orta-Ekenaike v Victoria Legal Aid,[17] and Attwells v Jackson Lalic Lawyers Pty Ltd.[18]
These cases establish that, at common law, an advocate is immune from suit by (and consequently cannot be liable to) his or her client for negligence in the conduct of a case in court or in work out-of-court which leads to a decision affecting the conduct of the case in court.[19] The immunity for work done out-of-court exists only where the particular work is so intimately connected with the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.[20] This requirement of an intimate connection is concerned only with work by the advocate that bears upon the court's determination of the case, and does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court.[21] So understood there must be a functional connection between the work of the advocate and the determination of the case rather than a mere historical connection.[22] The immunity does not extend to negligent advice which leads to a settlement of a claim in civil proceedings or negligent advice not to compromise the case.[23]
As illustrated by the decisions in Giannarelli and D'Orta‑Ekenaike, the immunity extends to negligent work by an advocate in criminal proceedings, even after the relevant conviction has been set aside.
In Giannarelli, three plaintiffs had been convicted of perjury in giving evidence to a Royal Commission. Two plaintiffs received sentences of imprisonment and appealed against their convictions. Their convictions were ultimately quashed by the High Court on the ground that a provision of the relevant Royal Commission legislation rendered the evidence given by the plaintiffs at the Royal Commission inadmissible in the criminal proceedings.[24] The other plaintiff did not appeal against his conviction. All plaintiffs then sought to sue their counsel for negligent failure to advise that the provision would render the evidence given in the Royal Commission inadmissible and thus defeat the Crown case, and to object on that ground to the tender of the evidence at trial. The High Court held that advocate's immunity applied to defeat that civil claim.
In D'Orta-Ekenaike, the plaintiff was charged with rape. He entered a plea of 'guilty' at a committal hearing, but on arraignment changed his plea to 'not guilty' and stood trial before a judge and jury. At trial, the Crown led evidence of the 'guilty' plea entered at the committal hearing. The plaintiff was convicted and sentenced to a term of imprisonment. On appeal, his conviction was quashed due to the inadequacy of the trial judge's directions concerning the guilty plea at the committal hearing. A retrial was ordered. The judge at the retrial ruled evidence of the plaintiff's guilty plea on committal to be inadmissible. The plaintiff was acquitted at the retrial. He subsequently sued his counsel and solicitor for negligently providing advice as to the advantages of pleading guilty at the committal hearing, and negligently failing to advise that a plea of guilty could be relied on by a prosecutor at a subsequent trial as an admission of guilt. Again, the High Court held that advocate's immunity applied to defeat that claim.
The appellant sought to distinguish Giannarelli and D'Orta‑Ekenaike from the present case. We accept that in D'Orta‑Ekenaike the alleged negligence was not the basis on which the claimant successfully overturned the conviction on appeal. There is a closer connection between the alleged negligence and the basis for the overturning of the conviction in Giannarelli. But even so Giannarelli is not a case where a miscarriage of justice was established based in part on the incompetence of counsel.
While, for these reasons, there are factual dissimilarities between the present case and Giannarelli and D'Orta-Ekenaike, we are not satisfied that these distinguishing features are material for the application of the principle of advocate's immunity. The principle of advocate's immunity established in Giannarelli and D'Orta-Ekenaike is equally applicable to the present case.
[18]
The principle of advocate's immunity from suit clearly applies to preclude success of the appellant's claim in negligence against the respondent.
The critical aspect of the appellant's claim is his complaint that the respondent failed to challenge the complainant's account of the weather on the date of the alleged offence and to adduce meteorological evidence which was inconsistent with that account at trial. The appellant contends that, if this had been done, he would have been acquitted at his first trial and would not have been incarcerated during the 15 months between his conviction and the quashing of that conviction on appeal. Accordingly, the core of the appellant's complaint is what the appellant contends to be the negligent conduct of the trial by the respondent acting on his behalf. That is conduct to which the principle of advocate's immunity attached with the result that the appellant's claim is doomed to fail.
The appellant does not avoid the application of the doctrine of advocate's immunity by focusing on conduct outside of court which led to the trial being conducted in that manner. The only significance of the alleged failure to obtain meteorological evidence in admissible form and properly consider the relevance of that evidence before the trial commenced is on the conduct of the trial. Merely obtaining the evidence and considering its significance could not have avoided the appellant's incarceration unless the evidence was actually used at trial. The only causal link between the alleged negligent acts and the damage which the appellant suffered is that, if the evidence had been obtained and its significance properly considered, it would have led to the evidence being used at his first trial in a manner that the appellant contends would have produced a different result. In this way, the alleged out-of-court negligence was intimately connected with the trial that affected the way the trial was conducted.
None of the appellant's grounds of appeal provide a proper basis for doubting this conclusion.
[19]
Ground 1: unsatisfactory professional conduct finding
[20]
Ground 1 contends that the primary judge erred by failing to have regard to a finding by the Legal Services and Complaints Committee on 26 April 2023.
The appellant made various complaints against the respondent under the Legal Profession Act 2008 (WA). The only complaint not dismissed by the Committee was a complaint that the respondent failed to obtain evidence necessary for the appellant's defence, namely admissible evidence as to the weather on the date of the offence, and failed to cross‑examine as to that evidence. The Committee decided to determine that complaint summarily and found that the respondent had engaged in unsatisfactory professional conduct (but not professional misconduct) by the conduct alleged. The Committee resolved to publicly reprimand the respondent and order that she pay a fine of $2,000. The Committee declined to make a compensation order under s 426(2)(c) of the Legal Profession Act, in part because of the then pending primary proceedings.[25]
The Committee's decision could not have affected the outcome of the summary judgment application, and the primary judge did not err to any extent his Honour failed to have regard to it. As noted above, the primary judge dealt with the summary judgment application on the basis that the appellant had at least a reasonable prospect of establishing that he suffered damage caused by the pleaded negligence of the respondent. It is unnecessary to consider whether the Committee's determination could give rise to an issue estoppel or whether its findings might have been relevant to the determination in the primary proceedings of whether the respondent acted negligently. The critical issue for the primary judge was whether advocate's immunity attached to the alleged negligent acts or omissions on the part of the respondent. The Committee's determination did not say anything about that issue, and did not determine the compensation claim. It could not have affected the primary judge's decision to grant summary judgment for the respondent on the basis of the application of the principle of advocate's immunity.
Ground 1 does not have reasonable prospects of succeeding.
[21]
Grounds 2 and 3: significance of the conviction being quashed
[22]
Grounds 2 and 3 are related and may be considered together. The contentions on both grounds arise from this court's decision to allow the appellant's appeal against his conviction. By ground 2, the appellant contends that advocate's immunity does not apply to out-of-court conduct which results in a miscarriage of justice. By ground 3, the appellant contends that advocate's immunity can only be asserted by application of issue estoppel, Anshun estoppel or res judicata. He argues that no issue estoppel, Anshun estoppel or res judicata arises from a decision which has been set aside on appeal.
We do not accept the appellant's contention that advocate's immunity derives from an issue estoppel, Anshun estoppel or res judicata arising from the decision in proceedings in which negligence is alleged. The determinative public policy consideration which justifies the existence of the immunity is the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings.[26] In D'Orta-Ekenaike, the plurality observed:[27]
[23]
The 'unique and essential function' of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. 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.
...
[T]he 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 a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy.
[24]
The plurality in D'Orta-Ekenaike went on to consider whether the doctrine applies to what their Honours referred to as an allegation of a 'wrong intermediate result'. The plurality gave the following example of such a result:[28]
[25]
A client may wish to say ... that the conduct of the advocate ... was a cause of the client suffering an intermediate consequence (conviction at the first trial and imprisonment) which was not wholly remedied on appeal. (The conviction was set aside but the client was incarcerated for a time and complains of that and what is said to have been caused by it.)
[26]
Under the heading '[a]n exception for challenges to intermediate outcomes?' the plurality noted that the grounds on which an intermediate result was set aside on appeal may be unrelated to the advocate's alleged negligent conduct.[29] Their Honours also noted that incompetence of counsel is not a separate ground of appeal, and the question on an appeal against conviction is whether there was a miscarriage of justice. Accordingly, in general, where an intermediate result was set aside, it would be for reasons unconnected or at best only indirectly connected with the client's contention that the advocate was negligent.[30]
The plurality then addressed whether there should be an exception to the scope of advocate's immunity for challenges to intermediate outcomes:[31]
[27]
It follows, therefore, that the class of cases in which an intermediate result would be open to challenge not only would be exceptional, in the sense of standing apart from challenges to final decisions, but also would be a class of case whose membership would depend upon the application of criteria unconnected with what, for present purposes, is the central focus of debate, namely the alleged negligence of the advocate. By this stage of the argument, in which attention is directed solely to exceptional cases, the proposition that for every wrong there should be a remedy has become too attenuated to be of any relevant application. Especially is that so when the very existence of the relevant exceptional case depends for the most part upon consideration that are irrelevant to the wrong that is to be remedied. If final results cannot be challenged, intermediate results should not be treated differently. (emphasis added)
[28]
The rejection of an exception to the principle of advocate's immunity for intermediate outcomes answers the appellant's contention that advocate's immunity does not apply in his case because he is not seeking to re-litigate his criminal proceedings but instead is embracing the findings and final determination of those proceedings.
A similar conclusion was reached by the Court of Appeal in New South Wales in Jimenez v Watson.[32] There the appellant sued his former solicitor for alleged negligence in connection with his prosecution on a charge of possession of child pornography. One element of the offence was whether the material depicted or described a person who is or appeared to be 'a child'. For the purpose of the relevant legislation a child was a person under the age of 16 years. The solicitor advised the client that the relevant age was 18 years. On the basis of this advice the client pleaded guilty. Following inquiry the matter was referred to the Court of Criminal Appeal who quashed the conviction. The Court of Criminal Appeal was satisfied, given the solicitor's advice, that the plea of guilty was not really attributable to a genuine consciousness of guilt.
The client's proceedings against the solicitor claimed damages for not exercising reasonable care, skill and diligence in not advising the client that a child for the purposes of the offence was a person who was or appeared to be under the age of 16 years rather than 18 years.
In the District Court of New South Wales the primary judge held that the claim was clearly barred by the principle of advocate's immunity. The Court of Appeal refused leave to appeal. White JA (Macfarlan JA agreeing) referred to Giannarelli, D'Orta-Ekenaike and Attwells. So far as advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions are not undermined by subsequent collateral attack, White JA posed the following question:[33]
[29]
It may be asked, how is the finality and certainty of judicial decision-making called into question when the judicial decisions which the applicant contends caused him loss, and for which he claims damages, have already been set aside by the Court of Criminal Appeal? The final judicial determination of the prosecution was that the applicant's conviction was quashed and he was acquitted of the charge.
[30]
White JA observed that it may 'seem counterintuitive' that as advocate's immunity is justified by the public interest in the finality and certainty of judicial decision, which should not be reopened by collateral attack seeking to demonstrate that a prior judicial determination was wrong, that the immunity should apply if the client does not (and the advocate could not) attack the final decision.[34] However, his Honour made the point, as we have above, that this was the case in both Giannarelli and D'Orta-Ekenaike.[35] White JA then referred to the passages from D'Orta-Ekenaike dealing with whether there might be an exception to the principle of advocate's immunity in the case of challenges to intermediate outcomes.[36] His Honour concluded:[37]
[31]
The applicant can say that even if 'in general' an intermediate result is set aside for reasons unconnected with, or only indirectly connected with an advocate's negligence, that is not so in the present case. But nor was that necessarily so in Giannarelli v Wraith and D'Orta-Ekenaike. The plurality in D'Orta-Ekenaike was not addressing Giannarelli v Wraith, nor the alleged facts of D'Orta-Ekenaike, but a matter of policy. The policy, as identified by their Honours, was that cases challenging an intermediate result would generally depend upon the application of criteria unconnected with the alleged negligence of the advocate. Their Honours evidently accepted that not all cases would fall within their reasoning. In the penultimate sentence in para [82] quoted above their Honours stated that it would only be 'for the most part' that a person wrongly convicted, whose conviction was ultimately quashed, could not say that the initial conviction was due to the negligence of his or her lawyers.
Nonetheless the High Court did not leave it open to the plaintiff to seek to establish that his initial conviction was due to his lawyer's negligence. Rather the High Court determined that intermediate results should not be treated differently from final results.
The High Court in Attwells did not disapprove of this reasoning. The reasoning is binding on this court. It follows that no purpose would be served in granting leave to appeal.
[32]
We agree with White JA's analysis of Giannarelli, D'Orta‑Ekenaike and Attwells. In the same way that the reasoning in D'Orta‑Ekenaike was binding on the Court of Appeal in New South Wales in Jimenez v Watson that reasoning is binding on this court. Accordingly, it does not matter that in the present case the appellant does not seek to challenge the final determination in his criminal proceedings by his negligence claim. The scope of the principle of advocate's immunity is authoritatively established by Giannarelli, D'Orta‑Ekenaike and Attwells. It does not admit of an exception simply because the client only seeks to challenge an intermediate outcome.
There is a further point. The principle is concerned with an immunity that attaches to certain acts or omissions by an advocate. The immunity from suit has the effect of barring liability for those acts or omissions. What White JA refers to as 'counterintuitive' is only to be so characterised because it is viewed from a perspective where a conviction has been set aside subsequently. But what if the negligence proceedings against the advocate had been brought before any quashing of the conviction? In the present case, for example, any cause of action was complete from the point where the appellant was imprisoned - the appellant could have commenced action at that time, ie before his conviction was quashed on appeal. In that scenario there would have been nothing counterintuitive in the proposition that the appellant's claim was barred by the principle of advocate's immunity.
It can hardly be supposed that the principle of advocate's immunity, in attaching immunity to an advocate's acts or omissions, ceases to be operative because of a subsequent decision as part of the appellate process. Where advocate's immunity attaches to an act or omission in the conduct of a case in court (or in work out of court which is intimately connected with the conduct of a case in court) the immunity must attach once and forever. The immunity cannot not depend on the mere timing of when the client's claim comes on for determination.
As noted above, both Giannarelli and D'Orta-Ekenaike were concerned with intermediate results, where the convictions had been quashed on appeal. In Giannarelli, the alleged negligence was related to the miscarriage of justice, being the receipt of inadmissible evidence without objection. In D'Orta-Ekenaike, the miscarriage was unrelated to the advocate's alleged negligent conduct. In each case the doctrine of advocate's immunity was held to preclude an action in negligence against the advocate. These decisions are inconsistent with the appellant's contention that advocate's immunity cannot apply where the conviction to which the negligent conduct of the advocate is said to have contributed has been quashed. They are also inconsistent with a requirement to draw a distinction between out-of-court conduct 'that directly caused a miscarriage of justice' and conduct which does not have that direct effect.
Grounds 2 and 3 cannot succeed in the face of this binding High Court authority. Neither ground has a reasonable prospect of succeeding.
[33]
Ground 4: application of immunity to work not performed
[34]
Ground 4 in part repeats the appellant's contention that the doctrine of advocate's immunity does not apply where a principal decision has been set aside or where the alleged negligence forms the basis of the decision to set aside the principal decision. To that extent the ground fails for the reasons explained above.
An additional contention in ground 4 is that the observations of Mason CJ in Giannarelli apply to work done out-of-court and not to work that has not been performed. That contention is inconsistent with the approach taken in Giannarelli itself, where one aspect of the alleged negligence was the failure to advise the plaintiffs that the relevant provision would render evidence inadmissible and thus defeat the Crown case.[38] It is also inconsistent with the approach taken in D'Orta‑Ekenaike, where the negligence alleged included failing to advise that a plea of guilty could be relied on by a prosecutor at a subsequent trial as an admission of guilt.
Ground 4 does not have a reasonable prospect of succeeding.
[35]
It is established that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[39] For the reasons explained above, this was a case where the pleaded defence of advocate's immunity means that the appellant's action against the respondent is doomed to fail. The primary judge was correct to award summary judgment on that basis. Nothing in the appellant's grounds of appeal or submissions to this court provides any proper basis for doubting the correctness of the primary judge's decision. The appeal should therefore be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. As the appeal should be dismissed there is no utility in granting an extension of time to appeal and the application for such an extension should also be dismissed.
The parties should be heard on the costs of the appeal.
[36]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[37]
[1] Criddle v The State of Western Australia [2017] WASCA 17 (criminal appeal decision).
[25] See the Committee's letter to the appellant dated 27 April 2023, which is annexure EJC9 to the appellant's affidavit sworn in the primary proceedings in opposition to the summary judgment application sworn on 29 January 2024.