Giannarelli v Wraith

[1988] HCA 52

High Court of Australia|1988-07-01|Before: Gaudron JJ, Marks J, Fullagar JJ

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Source facts

Court

High Court of Australia

Decision date

1988-07-01

Before

Gaudron JJ, Marks J, Fullagar JJ

Source

Original judgment source is linked above.

Judgment (216 paragraphs)

[1]

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Giannarelli v Wraith [1988] HCA 52

[2]

The issue in these appeals is whether a Victorian barrister is liable in negligence to his clients who were tried and convicted of perjury, the negligence alleged being his failure to advise them that they had a good defence to the proceedings and his failure to object to certain inadmissible evidence tendered by the Crown. The evidence was essential to the Crown case. Without it the Crown could not have succeeded.

[3]

The first three appellants (i.e., all of the Giannarelli appellants) were charged and convicted of perjury under s. 314 of the Crimes Act 1958 Vict. as a result of evidence which they gave to the Commonwealth and Victorian Royal Commission into the Federated Ship Painters' and Dockers' Union. The first appellant was released on a bond; the second and third appellants were sentenced to imprisonment. The first appellant did not appeal. The second and third appellants appealed unsuccessfully to the Court of Criminal Appeal. They then applied for special leave to appeal to this Court. Their application was successful, their appeal was allowed and their convictions were quashed: see Giannarelli v. The Queen [22] . The appeal succeeded on the ground that s. 6DD of the Royal Commissions Act 1902 Cth rendered the evidence given by the three appellants in the Royal Commission inadmissible in the criminal proceedings. The appellants allege that this point was raised for the first time in the application for special leave to appeal. The same point had been raised without success in other proceedings at first instance after the Court of Criminal Appeal dismissed the appeals by the second and third appellants, but before their application for special leave to appeal to this Court.

[37]

The question arises in this way. In October 1981 each of the appellants in the first appeal ("the Giannarelli appellants" or, when referred to collectively, "the plaintiffs") gave evidence before the jointly conducted Commonwealth and Victorian Royal Commission into the Federated Ship Painters' and Dockers' Union. In consequence of that evidence, they were each charged and convicted of perjury contrary to s. 314 of the Crimes Act 1958 Vict.. The first-named Giannarelli appellant was released on a good behaviour bond; the second and the third-named Giannarelli appellants were sentenced to imprisonment. An appeal by the second and third-named Giannarelli appellants to the Court of Criminal Appeal of Victoria failed. However, an application to this Court for special leave to appeal was successful. The application was granted, the appeal was allowed and the convictions of the second and third-named Giannarelli appellants were quashed: see Giannarelli v. The Queen [45] . The argument upon which the appeal succeeded was that by reason of s. 6DD of the Royal Commissions Act 1902 Cth the evidence given before the Royal Commission was not admissible in the criminal proceedings taken against the plaintiffs. In the present proceedings the plaintiffs allege that the point was raised for the first time in the application to this Court. Prior to that time, they had been legally represented by a number of persons, including the three respondents and the appellant in the second appeal ("the appellant Shulkes"). The respondents in the first appeal are the same respondents as in the second appeal. The first-named respondent, a barrister, appeared on behalf of the plaintiffs at the committal proceedings. The second-named respondent, one of Her Majesty's counsel in the State of Victoria, was leading counsel at the trial. The third-named respondent, also one of Her Majesty's counsel, appeared as senior counsel for the second and third-named Giannarelli appellants before the Court of Criminal Appeal. The appellant Shulkes was the instructing solicitor at the committal proceedings and the trial.

[103]

He lends his exertions to all, himself to none. The result of the cause is to him a matter of indifference. It is for the court to decide. It is for him to argue. He is, however he may be represented by those who understand not his true situation, merely an officer assisting in the administration of justice, and acting under the impression, that truth is best discovered by powerful statements on both sides of the question. By a paradox which is obvious to any who have experience in our courts, the client is best served by a counsel who is manifestly independent. In representing a client, counsel is expected not only to exercise due skill and diligence but also to do to the best of counsel's ability whatever may legitimately be done in the client's interests, for that is the way in which counsel assists in doing justice according to law: cf. Tombling v. Universal Bulb Co. Ltd. [91] . The privileges of counsel are accorded to that end; they are not accorded to protect counsel. If a duty owed to the client were seen to be separate from the primary duty of assisting to do justice according to law, the two duties might not be wholly compatible. No duty to a client which stands apart from the primary duty can be allowed to impair performance of the primary duty. Counsel who take part in proceedings in court (as well as witnesses and judges) must be able to perform their primary duty free from the chilling threat of civil suit by the parties to the litigation. A similar immunity, granted for similar reasons, attaches to members of Parliament taking part in the proceedings of Parliament. Participants in the proceedings of the courts or in the proceedings of Parliament must not be diverted from the performance of their primary duties by the threat of private litigation. This broad consideration underlies a number of more particular considerations of public policy which favour the rule of counsel's immunity for "in court" conduct, but I am relieved from the need to canvass the particular considerations in this case. They have been canvassed by the judgment of the Chief Justice with which I agree on this aspect of the case and by the speeches in Rondel v. Worsley [92] and Saif Ali v. Sydney Mitchell & Co. [93] . Therefore I would hold the common law to be this: neither a barrister nor a solicitor may be sued by a client in respect of any act done or omission made in the conduct of the client's case in court or in the making of preliminary decisions affecting the way in which the case is to be conducted when it comes to a hearing. 1. (1830) Mont. 69, at p. 70n., at p. 72. 2. [1951] 2 T.L.R. 289, at p. 297. 3. [1969] 1 A.C. 191. 4. [1980] A.C. 198.

[111]

Section 3 confers on a barrister "heretofore admitted" statutory admission and the right to practise as a solicitor; s. 4 confers on a solicitor "heretofore admitted" statutory admission and the right to practise as a barrister; s. 10 requires that after the passing of the Act, persons be admitted as barristers and solicitors. From 1891 onwards there were three categories of legal practitioners: those who had been admitted as barristers, those who had been admitted as solicitors, and those admitted after 1891 with the joint status of barrister and solicitor. Those admitted after 1891 had no need to rely on the authority to practise conferred by s. 3 or s. 4. Construing s. 5 in this context, the "barrister" who "shall in future be liable for negligence" appears to be the barrister who "has heretofore been admitted" and who, by force of s. 3, has become admitted and entitled "to practise as a solicitor". Section 5 imposes on that barrister liability "in future" for negligence while it gives him a right "in future" to sue for his fees. A person admitted after 1891 with the joint status of barrister and solicitor does not seem to fall within the provisions of s. 5. A joint status could be acquired on admission only by practitioners admitted "in future" (s. 10) and such a practitioner would not need the right to sue conferred by s. 5 and would be liable for negligence as a solicitor without having that liability imposed upon the practitioner by s. 5. Section 5 was directed to barristers already admitted, not to those who were admitted after the 1891 Act came into force. I should have thought that, on its true construction, s. 5 imposed liability on barristers "heretofore admitted" in order to ensure that, if the barrister practised as a solicitor pursuant to the authority conferred by s. 3, the barrister should be liable for negligence in the performance of the functions of a solicitor to the same extent as a solicitor was liable in the performance of those functions. The status of barrister was not to exempt him from that liability. It is noteworthy that no liability is imposed on a solicitor "heretofore admitted" in respect of the functions he might perform if he were to practise as a barrister pursuant to the authority conferred by s. 4.

[120]

It may be objected, of course, that the declaratory theory of judicial precedent embraces the fiction that the common law is an immutable body of doctrine existing from time immemorial, to be perceived by a judicial wisdom which proves to be ever more penetrating with the passing of the years. The reality is different: the common law is judge-made law, albeit made under the restraints of traditional judicial method. Neither the declaratory theory nor the positivist theory of judicial legislation is wholly satisfactory: see Simpson, The Common Law and Legal Theory in Simpson (ed.), Oxford Essays in Jurisprudence (Second Series) (1973), p. 77; Stone, Precedent and Law: Dynamics of Common Law Growth (1985), pp. 185 ff. and Wesley-Smith, Theories of Adjudication and the Status of Stare Decisis in Goldstein (ed.), Precedent in Law (1987), p. 73. Whatever may be said of the theories, a court which must apply a common law principle of an earlier time is faced with a peculiar difficulty. It is one thing for a judge to look to precedents as an aid to the ascertainment of a contemporary rule; it is another to decide, as a judge of an earlier time would have decided, a rule which accords with the jurisprudence of that earlier time. Judges are accustomed to performing the former function; they lack the requisite professional experience and cast of mind to perform the latter function with confidence. The judges of today are aliens to the society of a hundred years ago and, unless the relevant earlier period has produced an applicable precedent of binding authority, a judge could hardly be translated back to the earlier time and, ignoring the experience of the intervening years, declare common law principles different from what the judge now considers the common law to be. Take the present case. Could a judge in 1988 confidently declare the extent to which a solicitor would have been held liable for "in court" negligence prior to 23 November 1891? Notions derived from the speeches in Donoghue v. Stevenson [98] , not to mention those derived from later cases, would have to be put aside and precedents prior to 1891 analyzed from the viewpoint of a judge of that time. It may be that, despite the flaws in the declaratory theory, the uncertainty inherent in endeavouring to apply to present cases the principles current at an earlier time has led some judges to assert the unchanging continuity of the common law. This theory accounts for what Barwick C.J. said in Atlas Tiles Ltd. v. Briers [99] , in reference to the authority of this Court:

[139]

There is no reason to suppose that the 1891 Act was intended to go further than its wording suggests. In particular, the provision equating the liability for negligence of barristers with that of solicitors paid no attention to the extent of the liability of either at the time the Act came into force. That was not necessary. What was important was that both should in the future be treated equally. The practical way of achieving this was to say that barristers would be liable for negligence to the same extent as solicitors, without spelling out the limits on either side. This is what the Act did. It is obvious that at the time it was thought, correctly, that the liability of solicitors extended beyond that of barristers, but it would be wrong in my view to suppose that any significance was, or needed to be, attached to the precise differences. The object was equal treatment and for this purpose it mattered not whether solicitors were or were not liable for negligence when acting as advocates in court so long as practitioners were thenceforth placed upon an equal footing. It is apparent that when the Act was passed it was thought that the liability of solicitors rested upon the contractual relationship between them and their clients. No such relationship existed between barristers and their clients. No attempt was made, however, in s. 5 of the 1891 Act to alter that relationship other than to provide that barristers should in the future be able to sue for their fees, something which had previously been denied to them. If the result was to establish a contractual relationship between barristers and their clients (see In re Melbourne Parking Station Ltd. [11] ) then it was achieved indirectly. In other words, the section went no further than to bestow upon barristers an advantage enjoyed by solicitors just as in the matter of liability for negligence it went no further than to impose upon barristers the same liability for negligence as that imposed upon solicitors.

[141]

Until the decision in Rondel v. Worsley there can be little doubt that the liability of solicitors for negligence was thought to be based upon the contract which existed between them and their clients by reason of their retainer. Before 1891 solicitors in Victoria had a right of audience in Magistrates' Courts, County Courts and Courts of Mines. Similarly their counterparts in England were entitled to appear before inferior tribunals. There was, therefore, the possibility of negligence on the part of solicitors in the conduct of proceedings in court, and, indeed, there are cases in which solicitors were before 1891 held liable for negligence which was at least related to the function of an advocate. Reliance was placed upon those cases: Stokes v. Trumper [12] ; Montriou v. Jefferys [13] ; Hart v. Frame [14] ; Swannell v. Ellis [15] ; Smith v. Grant and Leslie [16] ; Purves v. Landell [17] ; Manley v. Palache [18] ; Fergusson v. Lewis [19] ; Clarke v. Couchman [20] ; Murray v. Reilly [21] . An examination of these decisions reveals, however, that with the possible exception of Stokes v. Trumper , none of them is concerned with negligence in actual advocacy before a court. They are for that reason of little assistance, but in any event the liability which they recognize is clearly based upon the view prevailing at the time that solicitors or their equivalent were liable for negligence because of their contract with their clients. This appeared to be sufficient to differentiate them from barristers and no need seems to have arisen to distinguish the activities of solicitors out of court from their activities in court. Immunity on the part of barristers was not then seen to be based as much upon public policy as upon the absence of contract. Their situation was described by Pollock C.B. delivering the judgment of the Court of Exchequer Chamber in Swinfen v. Lord Chelmsford [22] . After referring to Fell v. Brown [23] , a case in which the plaintiff was non-suited in an action against a barrister for unskilfully and negligently settling and signing a bill in equity, he said [24] :

[155]

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice Whilst the freedom spoken of in Cabassi v. Vila was freedom from actions for defamation or the like, the same considerations clearly apply to an advocate's immunity from actions in negligence. This appears strikingly in the judgment of Brett M.R. in Munster v. Lamb [41] , also a case dealing with an action for defamatory words uttered in court, on this occasion by a solicitor acting as an advocate. He said: If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes - judge, witness, and counsel - it seems to me that a counsel has a special need to have his mind clear from all anxiety. Brett M.R. goes on to point out that it is for the benefit of the public that an advocate in court should be free from the constraints which the possibility of civil action would necessarily impose. I can see no relevant difference for this purpose whether the action be for damages for defamation or for negligence. And it is to be remembered that in either case it is protection against actions which are ill founded as much as against those which are soundly based which is necessary. It is the contemplation of either type of suit which must be likely to hamper an advocate's efforts so as to deprive the administration of justice of the assistance which it might otherwise expect. In this respect the practice of the profession of an advocate differs from the practice of other professions. To err on the side of caution is not only practicable but ordinarily the best course with other professions. With an advocate this may be fatal, not only to the interests of the client, but also to the proper determination of the case. 1. (1940) 64 C.L.R. 130, at pp. 140-141. 2. (1883) 11 Q.B.D. 588, at p. 603.

[196]

See Reece v. Righey [60] , failure to have witnesses in court; Swannell v. Ellis [61] , failure to appear before arbitrators; Price v. Bullen [62] , failure to procure attendance of witnesses; Montriou v. Jeffreys [63] , failure to give proper advice; Godefroy v. Dalton [64] , failure properly to conduct case, not making sufficient proof; Godefroy v. Jay [65] , allowing judgment to go by default; Hart v. Frame [66] , instituting legal proceedings under wrong statutory provision; Ritchie v. McCrosty [67] , negligent conduct of case, failure to make points and assemble witnesses; Urquhart v. Grigor [68] Privy Council, misconduct of litigation; Griffiths v. Murphy [69] , failure to make sufficient proof of case; Smith v. Grant and Leslie [70] , failure to have proper authentication of a warrant of imprisonment of a servant under Stat. 4 Geo. IV c.34; Mercer v. King [71] , engaging an alcohol-prone surveyor to make essential measurements; Fray v. Voules [72] , settling without client's authority even though on advice of counsel; Hatch v. Lewis [73] , failure to call witnesses; In re Spencer [74] , application to court on wrong basis for payment of money out of a fund; Bullen v. Hooper [75] , bringing action in wrong court; Ibbotson v. Shippey [76] , advice that claim could not be made in bankruptcy although it could; Fergusson v. Lewis [77] , a recorder's decision rejecting solicitors being on same footing as barristers; failure to attend court to appear for client; Clarke v. Couchman [78] , handing over conduct of case to another solicitor; Manley v. Palache [79] Privy Council, misconduct of litigation, failure to examine opponent's witnesses. 1. (1821) 4 B. & Ald. 202 [106 E.R. 912]. 2. (1823) 1 Bing. 347 [130 E.R. 140]. 3. (1824) 3 L.J. (K.B.) 39. 4. (1825) 2 Car. & P. 113 [172 E.R. 51]. 5. (1830) 6 Bing. 460 [130 E.R. 1357]. 6. (1831) 7 Bing. 413 [131 E.R. 159]. 7. (1839) 6 Cl. & Fin. 193 [7 E.R. 670]. 8. (1854) 16 Dunlop 554. 9. (1857) 19 Dunlop 853. 10. [1856] Vic. Law Times 3 (F.C.). 11. (1858) 20 Dunlop 1077. 12. (1859) 1 F. & F. 490 [175 E.R. 822]. 13. (1859) 1 El. & El. 839 [120 E.R. 1125]. 14. (1861) 2 F. & F. 467 [175 E.R. 1145]. 15. (1870) 39 L.J. (Ch.) 841. 16. (1871) 2 V.L.R. (L.) 108 (Full Court). 17. (1879) 23 Sol. Jo. 388. 18. (1879) 14 L.J. 700. 19. (1885) 20 Law Jo. 318. 20. (1895) 73 L.T. 98.