Emde v Simpson

Legislation Cited: Civil Liability Act 2002 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(1)(b)

Cases Cited: Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Emde v State of New South Wales [2024] NSWDC 268
Emde v State of New South Wales [2025] NSWCA 41
Symonds v Vass [2009] NSWCA 139

Category: Principal judgment

Parties: Gerd Emde (Plaintiff)
Tony Simpson (Defendant)

Representation: Counsel:
H Weller (Solicitor) (Plaintiff)
S Clemmett (Defendant)
Solicitors:
Herbert Weller Solicitor (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s): 2025/336649

Publication restriction: Nil

JUDGMENT; ex tempore (REVISED)

1. On 19 and 21 April 2022, the Plaintiff entered the Richmond Marketplace at Richmond, New South Wales. Police took the view that when he did so he did so in breach of an apprehended domestic violence order (ADVO) then in place which, properly construed, so the police allege, prevented him from entering those premises. He was arrested and charged and on 28 April 2022 he appeared before the Windsor Local Court to answer charges laid by the police to the effect that he had breached the ADVO.

2. The Defendant, who is a solicitor, was on that day the legal aid duty solicitor stationed at Windsor Court. He gave advice to and acted for the Plaintiff when the matter came before the magistrate. It is alleged in the statement of claim that the Plaintiff told the Defendant that he was not guilty of the charges and that he was entitled to enter the Woolworths store in Richmond Marketplace where his daughter was employed. He pleads that he, the Plaintiff, planned to institute proceedings against the police for wrongful arrest and false imprisonment flowing from his arrest by the police.

3. Paragraphs 17 and 18 of the statement of claim in these proceedings then pleads as follows

“17 Notwithstanding the instructions given by the Plaintiff to the Defendant in paragraphs 15 and 16, the Defendant advised the Plaintiff that he should enter pleas of guilty to both charges before the Court.

18 In accord with the advice the Defendant provided to the Plaintiff, the Plaintiff pleaded guilty to both Charges before the Windsor Local Court.”

4. The pleading then goes on to plead that the conduct of the Defendant was negligent or did not come up to, what is described as, competent professional practice and that a cause of action is made out pursuant to the Civil Liability Act 2002 (NSW). The breach of duty of the Defendant is pleaded as follows:

“25 The Defendant was in breach of his duty and negligent in that he:

a) failed to advise the Plaintiff that his behaviour or conduct in entering the Richmond Market Place did not amount to a criminal offence.

b) failed to properly consider the Orders of the Windsor Local Court made on the 14th of April 2022 concerning the Plaintiff.

c) failed to properly consider the record of the Windsor Local Court of the 14th of April 2022 concerning the Plaintiff.

d) failed to advise the Plaintiff that he had not committed a criminal offence on the 19th of April 2022.

e) failed to advise the Plaintiff that he had not committed a criminal offence on the 21st of April 2022.

f) failed to advise the Plaintiff that he should enter a Plea of Not Guilty to the two Charges before the Windsor Local Court.”

5. Finally, the damages portion of the Plaintiff's claim is pleaded as follows:

“31 In accordance with s 5D it will be alleged that the negligence caused the harm, namely that negligence was a necessary condition of the occurrence of the harm (factual causation), and that it was appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

Particulars of Harm and Injury

32 By reason of the breach of duty and negligence of the Defendant the Plaintiff suffered harm, injury and loss

a) The Plaintiff suffered a psychiatric injury for which he does not make a claim.

b) The Plaintiff incurred out of pocket expenses and legal fees in the proceedings against the State of New South Wales.

c) The Plaintiff was hindered from success in his claim against the State for wrongful arrest and false imprisonment. d) The District Court made an order that the Plaintiff pay the costs of the State of New South Wales.

33 The Plaintiff claims, damages, interest and costs.”

6. To understand the damages case a little further it is necessary to understand that as predicted by the Plaintiff when speaking to the Defendant, the Plaintiff did bring proceedings for battery, wrongful arrest and false imprisonment which case was heard by Andronos SC DCJ of this Court in October and February 2024 and resulted in a judgment in favour of the State by his Honour on 28 June 2024: Emde v State of New South Wales [2024] NSWDC 268. In short, his Honour concluded that the arrest of the Plaintiff had been a lawful interference with what was otherwise the Plaintiff's entitlement not to be arrested because the arresting officer had the relevant suspicion identified in s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).

7. Without going into the details explained in that case and a number of recent Court of Appeal decisions, that involved a finding by his Honour as to two matters, the first being that the arresting officer actually and honestly held the relevant suspicion and secondly, that that suspicion was based on reasonable grounds. As I have said, Andronos SC DCJ found that the police officer did have the relevant state of mind and that it was held on reasonable grounds. The Plaintiff then appealed Andronos SC DCJ’s decision to the Court of Appeal which resulted in a judgment dismissing the appeal on 20 March 2025: Emde v State of New South Wales [2025] NSWCA 41. The nub of the Court of Appeal's decision is set out in paras 13, 14 and 15 of that judgment which are as follows:

“13 As to s 99(1)(a), the primary judge accepted the evidence given by the two officers that they subjectively believed that it was an offence for the appellant to enter Richmond Market Place. The main contest was whether their suspicion that entering the Market Place was prohibited by the ADVO was held on reasonable grounds. Two competing interpretations of the order were said to be relevant to that issue. The appellant submitted that the order prohibited entry only into “Woolworths Richmond”. The other construction was that the order (also) prohibited entry into “Richmond Market Place”, in which the Woolworths was located.

14 His Honour considered that the ADVO was ambiguous. However, he found that the officers’ suspicion was held on reasonable grounds because it was reasonably open to them to construe the ADVO as extending to Richmond Market Place. An important part of his Honour’s reasoning for that conclusion was his finding that the officer who made the decision to arrest, Senior Constable Newbould, had “verified the terms of the ADVO by having its terms read to him over police radio”: Emde v State of New South Wales [2024] NSWDC 268 (“J”) at [23]. That finding was not the subject of a ground of appeal.

15 As to the state of satisfaction required by s 99(1)(b), the primary judge referred to the two officers’ evidence, which he plainly accepted, “that they determined to arrest Mr Emde primarily because they considered it necessary to do so to protect the safety and welfare of his daughter and to prevent repetition of the offence”: at J[88]. Those reflect the matters in s 99(1)(b)(viii) and (i). His Honour also referred to the two officers’ evidence that the nature and seriousness of the offence (subpar (ix)) was a matter that they took into account.”

8. Returning then to what happened in the Local Court on 28 April 2022, the magistrate having accepted a plea of guilty entered on behalf of the Plaintiff by the Defendant and after considering matters in mitigation found the offences proved under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and thereafter dismissed the matter with no penalty.

9. Returning then to the statement of claim in these proceedings, the Plaintiff sues the Defendant for breach of duty of care. I have already set out paras 17 and 18 of the statement of claim. Before me today Mr Weller, solicitor, who appeared for the Plaintiff, indicated that if the matter was to remain extant he would seek leave to amend paras 17 and 18 to make it clear that it is the Plaintiff's case that the Plaintiff did not instruct the Defendant to enter the plea of guilty. So, the allegation is that the Defendant acted without express instructions when entering the plea. I proceed upon the basis that the Statement of Claim is so amended.

10. Ms Clemmett of counsel has today appeared on behalf of the Defendant, in support of orders to summarily dismiss the proceedings raises two principal grounds. The first is that regardless of the proposed amendment foreshadowed by Mr Weller, the alleged claim against her client is squarely within what is known as the advocate's immunity and therefore is doomed to failure.

11. The second is that, even if advocate's immunity is not available to her client, the damages sought by the Plaintiff as a consequence of the alleged breach of duty are illusory because the outcome of the proceedings first before Andronos SC DCJ confirmed by the Court of Appeal would have been exactly the same even if one hypothesises that instead of a plea of guilty being entered on the day before the magistrate, a plea of not guilty had been entered and after a hearing the magistrate acquitted the Plaintiff.

12. On that counter-factual, based on the particulars of the damages claimed in para 32 of the statement of claim one then has to assume that the Plaintiff would have sued the State for wrongful arrest and imprisonment but the outcome of the case before Andronos SC DCJ and/or the Court of Appeal would have been different meaning he would not have been out of pocket and would not have been ordered to pay the State costs. Ms Clemmett says that assumption is clearly misconceived.

13. I am comfortably satisfied that both submissions by Ms Clemmett should be accepted and therefore the case must be summarily brought to an end. In my opinion, it has no prospects of success. Assuming in favour of the Plaintiff that he actually did not give instructions to plead guilty, on the case being pleaded what must have therefore happened is there was some miscommunication or misunderstanding of his instructions to plead not guilty. That led directly to work being done by the Defendant in court, that is, entering the plea of guilty and making submissions in mitigation. There is therefore in my opinion a clear "functional connection" between the alleged negligent act of the Defendant and the magistrate's decision: see Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 (“Atwells”) at [5].

14. Consistent with what was said by the High Court and relevant to the present circumstances are the earlier observations by the Court of Appeal in Symonds v Vass [2009] NSWCA 139 at [116]:

"a paradigm case to which advocate’s immunity applies is where the client asserts that 'if the case had been prepared and presented properly, a different … result would have been reached:’ (D’Orta-Ekenaike at [70]).”

15. Mr Weller seeks to distinguish the application of the advocate's immunity by reference to paras 42 and 43 of the High Court decision in Attwells. Paragraphs 42 and 43 to my mind make it crystal clear that the immunity can apply in the conduct of a case without specific instructions being given by a client to a lawyer to run the case one way or the other. At para 42 the High Court records that the respondent in Attwells drew attention to what had been said in the case of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12:

"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."

16. At para 43 the High Court went on to say:

"The respondent sought to argue that this statement shows that advice by a lawyer which leads to a decision by a client is within the scope of the immunity. So much may be accepted, to the extent that such advice affects the judicial determination of the proceedings. But negligent advice to plead guilty, as had been allegedly given in D'Orta, when accepted by the client, does affect the determination of the case by the court. The court cannot proceed to conclude its function until a conviction is recorded."

17. And then at para 45 the High Court concluded this topic by saying:

"For present purposes, however, it is not necessary to determine whether the immunity attaches only to the kinds of decision which a lawyer charged with the conduct of a case in court may make without instructions from the client. It is sufficient to conclude that the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings."

18. That was the factual situation in Attwells. Having reviewed the various cases on this topic to which I have been taken, I cannot see any principled basis for there to be a distinction between on the one hand a lawyer who gives "negligent" advice to a client to conduct a case in a particular way and then conducts the case on the instructions of the client based on that negligent advice, and on the other hand a situation where a lawyer runs a case in court without having specific instructions from the client to run it in that way.

19. If one analyses the underlying rationale for the advocate's immunity, such a distinction would to my mind not fit neatly or at all with that underlying purpose. For those reasons, even were paras 17 and 18 of the statement of claim amended in the way identified on behalf of the Plaintiff, the case is clearly bound to fail because of the proper application of the advocate's immunity doctrine that it is appropriate for it to be dismissed at this stage.

20. If I am wrong about that, I am equally satisfied that the case for damages alleged to have been caused by the alleged wrongful act of the Defendant is fundamentally and factually misconceived. That misconception is that there is an unstated premise in the chain of reasoning as to the damages claimed being that the outcome of the claim for wrongful arrest, false imprisonment, et cetera dealt with by Andronos SC DCJ and the Court of Appeal would have been different in a counterfactual where at the Local Court hearing the Plaintiff had pleaded not guilty and the magistrate had acquitted him.

21. In my opinion, that counter-factual would have had no relevance to the outcome of the false imprisonment case because that case turned on a finding as to the subjective state of mind of the arresting officer at the time of arrest and whether that state of mind was based on reasonable grounds, a topic about which what happens in a subsequent prosecution following an arrest really has no part to play.

22. In other words, I accept that even if the outcome of the Local Court case had been different in the sense of an acquittal, the damages sought by the Plaintiff would have been occasioned in any event because they were a consequence of him bringing the false imprisonment case and have nothing to do with what happened in the Local Court.

23. That is all a long way of me saying that this being a claim in negligence I am comfortably satisfied that even if, contrary to my earlier conclusion, the Plaintiff might succeed in proving a breach of duty of care by the Defendant he will fail to prove any damages. I am satisfied to the requisite level, so as to conclude that the case has no hope of success for that reason alone.

24. Therefore, the result of the Defendant’s Motion will be that the case will be dismissed summarily.

25. For those reasons I make the following orders:

26. Pursuant to r13.4 of the UCPR, the Plaintiff’s proceedings against the Defendant are dismissed.

[Discussion concerning costs…]

2. The Plaintiff is to pay the Defendant’s costs of the proceedings and this Motion on the ordinary basis up to 10 December 2025, and on an indemnity basis thereafter.

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