The appellant's negligence was within advocate's immunity
114The appellant did not have available evidence of the parties' assets and their values at the hearing, because the case he was mounting on the respondent's behalf was that there should be a property adjustment in the respondent's favour by reason of the increase in Ms McLennan's property position by the amount of the released NAB debt. He considered that the values of the Edward Street property and the Carcoar farm, and of Ms McLennan's other property and the respondent's property, were of no particular significance. Even if this was a justifiable approach, the appellant was still negligent. For the intended case, at the least the appellant should have had evidence of the amount of the NAB debt. Other than in the respondent's affidavit in reply, he did not, and the evidence in the reply affidavit in any event was not satisfactory.
115The appellant set the respondent's claim under the Act on its defective course when he drafted or settled the respondent's affidavits in or about October 2004. He maintained his approach to the claim thereafter. Had there not been the application pursuant to r 29.9, the appellant might have brought out the amount of the NAB debt as part of a cross-examination of Ms McLennan directed to the respondent's contribution to the settlement with the NAB; perhaps the affidavit in reply would have provided some evidence of the amount of the NAB debt. This is speculative, and it is not clear what the appellant might have sought to make of the other matters pleaded in the statement of claim such as work on the Edward Street property and in the operation of the Carcoar farm - it appears that they were seen as very much subsidiary to the course on which the appellant had decided. For present purposes, the point is that drafting and settling the affidavits involved the appellant deciding that he was going to conduct the respondent's case at the hearing on that affidavit evidence and, unless later reconsidered, only that affidavit evidence.
116In my opinion, this was work done out of court leading to a decision affecting the conduct of the case in court. The work and decision were combined; there was a decision out of court, maintained as a decision at the hearing, upon how the case should be conducted in court. The appellant's work was within the test restated in D'Orta-Ekenaike v Victoria Legal Aid at [86], and within the alternative restated test of work intimately connected with work in court. The appellant in due course conducted the case in accordance with the decision he had made, relying on the affidavit evidence. His conduct of the case met at an early point with the application under r 29.9, but it was nonetheless conduct of the case in accordance with that decision.
117Calling what the appellant did failure to advise upon what evidence was required and marshalling the evidence does not change its character. The negligent conduct alleged in D'Orta-Ekenaike v Victoria Legal Aid was advice to enter a plea of guilty at committal. It was acted upon, and the guilty plea was led against the plaintiff in a subsequent trial. The advice "was work which an advocate did out of court but was work which led to a decision which affected the conduct of the case at the subsequent trial": D'Orta-Ekenaike v Victoria Legal Aid at [88]. Indeed, the effect was on a subsequent trial; it was more remote than an effect on the committal in relation to which the advice was given.
118The evidence adduced is central to the conduct of a case in court, and a decision on what evidence to lead or not lead is a decision affecting the conduct of the case in court. It does not matter that the decision is made prior to the hearing - such decisions should be made prior to the hearing, and the immunity is not confined to a decision made by the lawyer on his or her feet in court. Keefe v Marks (1989) 16 NSWLR 713 illustrates advocate's immunity in relation to negligence at the early stage of drafting a statement of claim, continued to the hearing. The barrister was briefed to act as counsel for a plaintiff in a personal injuries case but did not, at any relevant time either prior to the hearing or at the hearing, direct his mind to the desirability of making a claim for interest. In consequence the plaintiff was not awarded interest at the trial. Gleeson CJ, with whom Meagher JA agreed, said at 719-720 -
"The barrister's alleged negligence involved a continuing course of conduct, or inaction, which extended up until the conclusion of the hearing before Master Greenwood and manifested itself in a failure to make a claim for interest, and to apply for any necessary amendment to the pleadings in order to enable that claim to be pursued.
...
The substance of the allegation against the opponent is that he was negligent in the way in which he conducted Mr Tehfe's action, and the principle of immunity which applies in such a case cannot be circumvented by drawing fine distinctions between the preparation and the conduct of the case, or between the opponent's failure to advert to the matter of interest while he was in his Chambers and his failure to do so while he was in Court."
119Gleeson CJ had described at 718 some normal pre-trial consideration and preparation, of which McHugh J in D'Orta-Ekenaike v Victoria Legal Aid at [155] said -
" [155] In Keefe v Marks , Gleeson CJ referred to other examples of out-of-court work that would be intimately connected with the conduct of the cause:
' ... interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended.'"
120The trial judge referred at paras 99 and 100 to Philip Walton v Efato Pty Ltd [2008] NSWCA 86, Coshott v Barry [2009] NSWCA 34 and Dancor Pty Ltd v Pagotto [2008] NSWSC 112.
121In Philip Walton v Efato Pty Ltd there was a deficiency in evidence of solvency. Tobias JA, with whom Beazley JA and I agreed, doubted that advocate's immunity applied, because it was difficult to identify a decision affecting the conduct of the case in court to which failure to obtain the evidence led. It was not necessary to come to a conclusion. The respondent in the present case submitted that the appellant's negligence did not involve a decision affecting the conduct of the case, because the evidence of the parties' property and the amount of the NAB debt had not been identified or marshalled and the appellant was not in a position to make a decision.
122This indirectly suggested that a negligent omission could not come within advocate's immunity. That is not correct: see Attard v James Legal Pty Ltd [2010] NSWCA 311 at [9] -
"It is clear that the immunity can extend to a negligent omission: for example, Rees v Sinclair (1974) 1 NZLR 180 (at 187); Giannarelli v Wraith itself; and Keefe v Marks (1989) 16 NSWLR 713. There is express reference in D'Orta-Ekenaike v Victoria Legal Aid at [87] to the acts or omissions to which immunity attaches."
123In any event, the submission should not be accepted. The appellant made a decision to conduct the respondent's case at the hearing on the affidavit evidence, which he had drafted or settled in and after October 2004. That decision directly affected the conduct of the respondent's case at the hearing in the District Court.
124Neither the appellant nor the respondent referred to the judgment of Rothman J in Wilson v Carter [2005] NSWSC 1351, in which his Honour said at [55] -
" [55] The drafting of affidavits, the determination of the contents of those affidavits and the advices relating thereto, indeed all the tactical decisions associated with the preparation for and presentation of the extension application were, in the circumstances of this case, "intimately connected" with conduct of the case in court and affected the hearing. It is difficult to imagine out-of-court work more connected with the conduct of the case in court than the determination of the witnesses to be called and the evidence to be adduced from them. To the extent that these allegations concern out-of-court work, they are fundamentally directed to such matters or to preliminary steps leading only to such matters."
125This passage was set out by Tobias JA in Philip Walton v Efato Pty Ltd at [81]. His Honour said of it -
" [82] The difficulty with this statement is that on its face it would appear to apply to a situation where, months before the hearing of the case in court an affidavit is drafted, sworn and filed which is defective in form but which defect is not ascertained before the affidavit is read when the offending paragraphs are rejected. No doubt it might be said that there was a continuing breach of duty constituted by the failure to appreciate in time the defective form of the affidavit. And yet it seems unrealistic to assert that the negligent preparation of that affidavit was intimately connected with the ultimate conduct of the case in court."
126These observations of Tobias JA are not applicable to the present case. The appellant's negligence in the present case was not drafting a formally defective affidavit or failing to recognise the defect. His negligence was in forming an incorrect view as to the evidence that should be adduced on the respondent's behalf at trial. That view directly affected the conduct of the case in court.
127Coshott v Barry was a case of failure to advise on what claims to bring. In Symonds v Vass [2009] NSWCA 139 at [127] Ipp JA said that "the observations made by Tobias JA in Walton and the finding I made in Coshott should be understood as confined to the specific facts in those cases and are not to be understood as laying down any principle of broader application". The trial judge may have overlooked this in describing the judgments as very persuasive. Be that as it may, the present case is not one of failure to advise on what claims to bring.
128Dancer Pty Ltd v Pagotto was a case of failure to advise on the prospects of the proceedings. That is not this case, and it should be repeated that it was not part of the respondent's case on appeal that the appellant was negligent in advising that his claim to recover what he considered was due to him should be brought as a claim under the Act. The appellant's negligence was when, the claim having been brought, he decided that the case should be conducted on an evidentiary basis which was seen as wanting by Phegan DCJ.
129The respondent submitted that the rationale for advocate's immunity, the finality principle as explained in D'Orta-Ekenaike v Victoria Legal Aid , was absent in the present case. He submitted that the controversy was not quelled and there was no finality which litigation of his claim against the appellant would offend, because the respondent had been free to bring fresh proceedings under the Act (and had done so, albeit with leave because he became out of time).
130This submission also should not be accepted. The proceedings brought against Ms McLennan for which the appellant was retained were resolved by dismissal, resulting in an order for costs against the appellant. Those proceedings, and the controversy constituted by the application made pursuant to r 29.9, were finalised.
131In D'Orta-Ekenaike v Victoria Legal Aid the plurality referred at [70] to the inability wholly to remedy within the original litigation the consequences of the advocate's negligence. As to the consequence of wasted costs, their Honours said that the costs order against the client could not be set aside and the costs incurred could not be recovered from the opposite party. They observed that as to all consequences the client would say that, but for the advocate's negligence, there would have been a different result. After referring to the consequences in other cases, their Honours said -
" [83] There remains for separate consideration the last of the three kinds of consequence identified earlier as consequences of which a client may wish to complain: wasted costs. Again, at first sight it might be thought that seeking to recover wasted costs would not cut across any principle of finality. But it is necessary to recall that the general rule is that costs follow the event. To challenge the costs order, therefore, will often (even, usually) involve a direct or indirect challenge to the outcome on which the disposition of costs depended. For the reasons given earlier, that should not be permitted lest a dispute about wasted costs become the vehicle for a dispute about the outcome of the litigation in which it is said that the costs were wasted."
132Litigation of the respondent's claim against the appellant does in fact call in question the correctness of Phegan DCJ's disposal of the proceedings by granting the application for dismissal under r 29.9, see below, although at the instance of the appellant rather than the respondent. As I endeavoured to explain in Attard v James Legal Pty Ltd at [15]-[30], the rationale explained in D'Orta-Ekenaike v Victoria Legal Aid does not require a challenge to finality of a judicial act in the particular case, but the dispute about wasted costs has become the vehicle for a dispute about the outcome of the proceedings heard by Phegan DCJ.