Ground 8: Immunity from suit
160Ground 8 also only arises for determination if my conclusion, that Mr Donnellan was not negligent, is wrong. However, in deference to the significant focus on this ground in the argument of the parties, it is appropriate that I deal with it in some detail. In dealing with this ground of appeal, I propose to consider the statement of principle in D'Orta-Ekenaike; then to deal with the case law referred to by counsel and their arguments in relation thereto, including the arguments advanced in respect of the challenged decisions; and next to return to his Honour's determination of the immunity question.
161The principles governing a legal practitioner's immunity from suit were stated by the High Court in Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 and confirmed in D'Orta-Ekenaike where the plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ), at [25], observed that in Giannarelli v Wraith the Court held that:
"... an advocate cannot be sued by his or her client for negligence in the conduct of a case, or in work out of court which is intimately connected with the conduct of a case in court ..."
162In D'Orta-Ekenaike, the Court was concerned with advice in relation to a plea of guilty, given in chambers to an accused person by a solicitor employed by a State legal aid agency and a barrister. The advice was confirmed in conference at court on the morning of the committal hearing.
163The importance of the decision in D'Orta-Ekenaike is that it establishes that the judicial function in quelling disputes, that is, the principle of finality, centrally underlies the immunity. As the plurality observed, at [34]:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances."
164The central qualification to this general statement lies in the appellate system, although, as the Court observed, at [35], "even there, the importance of finality pervades the law". By way of example, their Honours referred to the limitations on the points that may be taken on appeal and rules governing when further or fresh evidence may be adduced.
165The Court explained, at [43], that the inevitable consequence of establishing that a client had suffered damage as a result of an advocate's negligence in the conduct of litigation was the "re-litigation of the controversy" that was the subject of the original action. In considering whether a particular claim would have that effect, the Court considered, at [65], it was necessary to identify, amongst other things, "the nature of the complaint made by a disappointed client who seeks to sue an advocate". In the Court's view, at [66]:
"... the complaint must be that a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged."
166Their Honours identified the "three chief consequences" that may befall a client as being "(a) a wrong final result; (b) a wrong intermediate result; and (c) wasted costs" and continued, at [70]:
"What unites these different kinds of consequence is that none of them has been, or could be, wholly remedied within the original litigation. The final order has not been, and cannot be, overturned on appeal. The intermediate consequence cannot be repaired or expunged on appeal. The costs order cannot be set aside; the costs incurred cannot be recovered from an opposite party. And in every one of these cases, the client would say that, but for the advocate's conduct, there would have been a different result. In particular, leaving cases of wasted costs aside, the client wishes to assert that, if the case had been prepared and presented properly, a different final, or intermediate, result would have been reached. And yet the judicial system has arrived at the result it did. The consequences that have befallen the client are consequences flowing from what, by hypothesis, is a lawful result. So, to take the present case, the imprisonment of which the applicant seeks to complain is lawful imprisonment. In a case where the client would say the wrong final result is reached, the result in fact reached is, by hypothesis, one that was lawfully reached. Whether the lawful infliction of adverse consequences (such, for example, as imprisonment) can constitute a form of damage is a question that may be noted but need not be answered." (emphasis added)
167The present case is one of wasted costs, in respect of which their Honours stated, at [83]:
"... 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."
168Their Honours added, at [84]:
"... the legal principle which underpins [this] conclusion is fundamental. Of course, there is always a risk that the determination of a legal controversy is imperfect. And it may be imperfect because of what a party's advocate does or does not do. The law aims at providing the best and safest system of determination that is compatible with human fallibility. But underpinning the system is the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need." (emphasis added) (citation omitted)
169One of the issues in D'Orta-Ekenaike was where the appropriate line for the application of the immunity should be drawn. In Giannarelli v Wraith, the High Court had held that the immunity extended to "work done out of court which leads to a decision affecting the conduct of the case in court". In stating the test in those terms, the High Court accepted that the immunity was not confined to in court conduct: see Rees v Sinclair [1974] 1 NZLR 180 at 187 per McCarthy P, where the Court had used the following language to describe conduct that fell within the immunity, namely:
"... work so intimately connected with the conduct of the cause in Court that it can fairly be said to a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing."
170The language used by the New Zealand Court of Appeal was reflected in legislation in Victoria, which was the jurisdiction in which the litigation in D'Orta-Ekenaike was conducted. It was also the language used by McHugh J in his judgment at [94]. The plurality in D'Orta-Ekenaike observed, at [86], that there was no difference of significance in the language of "work out of court which leads to a decision affecting the conduct of a case in court" and the language of "work intimately connected with work in Court". Their Honours then observed, at [87]:
"As Mason CJ demonstrated in Giannarelli, 'it would be artificial in the extreme to draw the line at the courtroom door'. And no other geographical line can be drawn that would not encounter the same difficulties. The criterion adopted in Giannarelli accords with the purpose of the immunity. It describes the acts or omissions to which immunity attaches by reference to the conduct of the case. And it is the conduct of the case that generates the result which should not be impugned." (citation omitted)
171Mason CJ's comment, at 559, in Giannarelli v Wraith to which the plurality referred was as follows:
"... where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity."
172The plurality's reasons in D'Orta-Ekenaike make it clear that the immunity is not confined to negligence on the part of a legal practitioner, whether barrister or solicitor, who acts in a case as an advocate. It extends to a solicitor who acts in the litigation qua solicitor provided that, on the facts, the negligent conduct falls within the reach of the immunity, namely, work done out of court that leads to a decision affecting the conduct of the case in court. This was expressly acknowledged by the plurality, at [90]-[91]. In the latter paragraph, the plurality stated:
"Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision (here the client's decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account."
173McHugh J, in commenting upon the importance of the finality of litigation noted, at [144], that:
"... [a] successful claim of negligence against a practitioner depends on demonstrating that at least one outcome of the principal litigation was wrong"
and therefore, the possibility of inconsistent outcomes arose. His Honour noted that the appellate system was the place where a lower court decision, otherwise final, fell for correction: see Giannarelli v Wraith at 595 per Dawson J. McHugh J dismissed argument that D'Orta-Ekenaike was distinguishable from Giannarelli v Wraith on the basis that it involved a failure to warn in the Rogers v Whitaker sense. His Honour stated, at [157]:
"The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence. An integral part of the advocate's role is the giving of advice on the basis of which the client will give instructions that direct the course of proceedings. The advice is critical to and often determinative of the client's decision. There is no relevant distinction between instructions given on negligent advice and the negligent carrying out of instructions if both are intimately connected with the conduct of litigation."
174Negligent advice regarding a plea of guilty had been alleged in the English decision of Somasundaram v Melchior & Co [1988] 1 WLR 1394; [1989] 1 All ER 129. In that case, the Court of Appeal held that advice as to a plea was intimately connected with conduct of the case in court so that it could:
"... fairly be said to be a preliminary decision affecting the way that the cause is to be conducted when it comes to a hearing ..."
175McHugh J, at [161], having noted the Court of Appeal's remark, observed that:
"... there may be a public policy purpose in protecting an advocate from vexatious claims arising from mere errors of judgment inherent in predicting a sentencing outcome."
176His Honour continued, at [162], that the application of the immunity to such advice served:
"... the important public interests of avoiding re-litigation of issues and maintaining confidence in the administration of criminal justice insofar as that confidence rests on finality of outcome."
177In McHugh J's opinion, at [164], the issue of causation distinguished a claim based on an advocate's negligence from every other action for negligence for the reason that "the opinion of a third party - a judge or a jury - is interposed between the negligence and the injury". His Honour's view was consistent with that expressed by the plurality, at [45], that re-litigation of a controversy already determined would be of a "skewed and limited kind". His Honour concluded, at [168]:
"... the immunity should extend to any work, which, if the subject of a claim of negligence, would require the impugning of a final decision of a court or the re-litigation of matters already finally determined by a court."
178Callinan J stated, at [372], that Giannarelli v Wraith was "plainly right in its treatment of the common law as well as the relevant legislation" and agreed with the reasons of the plurality as to why the immunity should be maintained. His Honour examined additional reasons why that was so, which are not presently necessary to consider. Kirby J dissented on the question of the application of the immunity to in court conduct.