Gleeson JA, White JA, Cavanagh J, Adamson J, McCallum J
Source
Original judgment source is linked above.
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: This is an application for leave to appeal from orders of a judge of the Common Law Division that the applicant's proceeding be summarily dismissed with costs (Golden v Koffel [2021] NSWSC 739, Cavanagh J).
The applicant, Mr Golden, was a racehorse breeder and trainer. On 8 June 2011 the Chief Executive of Racing NSW, Mr Peter V'landys, on behalf of Racing NSW, decided that Mr Golden's trainer's licence should be suspended for six months. On 24 June 2011 Mr V'landys determined that Mr Golden should be warned off racetracks controlled by Racing NSW indefinitely.
In 2013 Mr Golden commenced proceedings challenging those decisions. Initially all his claims failed (Golden v V'landys [2015] NSWSC 1709, Adamson J). On appeal (Golden v V'landys [2016] NSWCA 300) Mr Golden was partially successful. The decision to warn off Mr Golden from all racetracks controlled by Racing NSW was quashed and the respondents (Mr V'landys and Racing NSW) were ordered to pay 75% of his costs.
What prompted the decisions of Mr V'landys for Racing NSW was Mr Golden's abusive complaints of corruption in the administration or oversight by Racing NSW of a Commonwealth Government scheme, the Commercial Horse Assistance Payments Scheme ("CHAPS"), to provide assistance to those involved in the horse racing industry who were adversely affected by an outbreak in 2007 of the equine influenza virus.
The respondents to the present application, Koffels Pty Ltd and Mr Koffel, acted for Mr Golden in the proceedings before Adamson J.
In 2018 Mr Golden instituted a second proceeding in the Common Law Division in which he represented himself. He sought to reventilate his earlier claims that had been disposed of, as well as challenge a later decision adverse to him in 2017. Those proceedings were summarily dismissed by McCallum J (as her Honour then was) (Golden v V'landys [2019] NSWSC 1362) and an application for leave to appeal from her Honour's orders was dismissed by this Court (Golden v V'landys [2020] NSWCA 120).
In her reasons, McCallum J said:
"[17] The burden of the complaint underlying all of the claims is that Mr Golden has been victimised as a whistleblower as a result of his strident and ongoing criticism of the people and organisations he alleges were involved in rorting the CHAPs scheme. Mr Golden has made it clear that, in order to make good his claims in these proceedings, he seeks to prove that the allegations he has made concerning the CHAPs scheme are true. He criticises the solicitors who previously acted for him for not adducing that evidence in the earlier proceedings. For example, par 201 of the pleading states:
"Between 2013 & 2015 Mr Golden's lawyers played down CHAPS fraud because counsel did not wish CHAPs fraud to smother Mr Vlandys [sic] misfeasance in public office & Mr Golden was not the slightest bit happy with lawyers [sic] decision because Mr Golden insisted his claim was about CHAPs, CHAPs & CHAPs,"
[18] Indeed, he appears to accuse them of accepting bribes not to run the case he wanted to run, saying at par 201(c):
"Mr Golden believes lawyers may have received payments to scuttle Mr Golden's claim by not presenting CHAPS fraud facilitations given to them & for Court [sic]"
[19] The statement of claim seeks a broad range of declaratory and compensatory relief calculated to vindicate Mr Golden's allegations of corruption in the administration of the CHAPs scheme and to regain his status as a licenced thoroughbred trainer with compensation for the training opportunities lost as a result of his allegedly wrongful exclusion from the industry."
On 26 November 2020 Mr Golden instituted the proceedings from which this application for leave to appeal has been filed against his former solicitors who acted for him in the first proceedings against Mr V'landys and Racing NSW that were heard before Adamson J. Again, he brings these proceedings without legal representation. He alleged that he instructed Mr Koffel to take Mr V'landys and Racing NSW to court for misappropriation of public funds (statement of claim para 6) and that Koffels failed to present to court documents produced on discovery which, according to Mr Golden, confirmed a fraud and cover up by Racing NSW and further misappropriation of funds (para 7). The basis for this allegation appears to be that according to Mr Golden, CHAPS funding was specifically directed only to in-work horses (para 7). He alleged that critical evidence not presented to the court but which was available through discovered documents and other papers would, if produced, have demonstrated that millions of dollars of public funds were misapplied (para 18). He alleged that "virtually everything to do with CHAPS fraud was struck out of 2015 hearings" (para 17). This was an allegation that evidence of the fraud was not adduced by Koffels in the proceedings, rather than that evidence was tendered but rejected.
Mr Golden also alleged that, had he been properly represented, the respondents would have joined Racing NSW general counsel, a Mr Sweney, as a defendant (para 21).
Under the heading "Defendants negligence's [sic] summarised briefly" Mr Golden alleged:
"[31] CHAPS was available to in work horses, not for spelling or educations costs & was confirmed by two senior CHAPS & RNSW administrators
a. Defendants failed to access in work track usage records to validate RNSW mismanaged CHAPS payments; re plaintiff instruction to expose Mr V'landys misappropriated CHAPS funds. In work track usage records are & were readily available to validate trainers claims & not produced in 22 months extended delays & defendants $259k negligent fees issued
b. Alternative CHAPS validation is horse history production of spelling horses, which defendants also failed to present to Court(s), that confirm uneducated and spelling horses paid CHAPS training fees.
c. RNSW CHAPS mismanagement came with instructions how to receive full day training fees while spelling ineligible horse, & RNSW would assist incompetent thieving trainers who could not follow RNSW CHAPS fraud facilitation instructions.
d. Horse histories confirm horses not denied income because they were undergoing educations [& not CHAPS eligible]. Uneducated horses cannot generate [racing] incomes [per CHAPS agreements]
e. Only previously raced or educated horses were denied income & entitled to CHAPS to support owners [&] denied income. As per Government CHAPS intended financial assistance package.
f. Ross Koffel claimed to have an understanding of horse racing
g. Defendants $770ph negligent professional fees should have highlighted RNSW 2011 mysterious Current Assets $150m Cash increase that plaintiff alleges to be RNSW stolen public funds. RNSW 2020 Current Assets rose $5m over ten years from 2011 to 2020 & highlights RNSW CHAPS non compliance & theft."
He pleaded that, had the evidence been presented, this would have demonstrated that Mr V'landys held a malice against him (para 33).
Mr Golden's claims for relief included:
"1. A declaration 2015 NSWSC 1709 decision was not in line with plaintiff instruction presented to Ross Koffel [by plaintiff & client Joseph Golden] which resulted in professional negligence's & possible incorrect tort used against Racing NSW [RNSW] that ignored confirmation of $40k-$50k trainers CHAPS fraud & cover up & led to identify RNSW $170m public funds embezzlement.
…
3. A declaration the 2015 NSWSC 1709 decision excluded RNSW public funds fraud facilitations cover up & embezzlement & discovered document papers & [was] not per client instructions presented to Ross Koffel which resulted in 40 year losses by plaintiff resulting from KPL professional negligence's [sic].
…
5. KPL 2013-140063 poor participations with 2015 NSWSC 1709 decision supported RNSW $40k plus fraud cover up & 170m public funds embezzlement.
6. Defendants' professional negligence's [sic] supported plaintiffs' life & 40 years business destruction. Because defendants failed to subpoena & cross examine Mr V'landys.
7. Plaintiffs 40 years losses estimate $6.3m minimum.
8. Damages, including exemplary damages.
…"
The primary judge summarily dismissed the proceeding on the ground of advocates' immunity from suit. The primary judge said:
"[41] Advocates' immunity from suit extends to protect a solicitor involved in the conduct of litigation in Court in certain circumstances. In Giannarelli v Wraith (1988) 165 CLR 543, the court held that advocates' immunity extends to work done out of Court, which leads to a decision affecting the conduct of the case in Court.
[42] As Mason CJ explained:
'The problem is: 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.'
[43] That statement was confirmed in D'Orta-Ekenaike v Victoria Legal Aid at [86]:
'there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or … 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way.)'
[44] Whilst in Attwells v Jackson Lalic Lawyers Pty Ltd the High Court held that the advocates' immunity does not extend to acts or advice which may lead to a settlement, nothing in Attwells tends to detract from the essential statement of principle set out in both Giannarelli and D'Orta.
[45] The plaintiff's claim is that the defendants failed to follow his instructions, but he means by that that the defendants failed to obtain and present evidence that he wanted presented, and the defendants failed to conduct the hearing in such a way, that is by presentation of evidence that he says should have been presented and cross-examination of witnesses on topics that he says should have been raised.
[46] In my view all of the allegations raised by the plaintiff (that is which could lead to any potential relief on his part) fall squarely within the description of work done either out of Court, which leads to a decision affecting the conduct of the case in Court, or work actually done in court, that is during the conduct of the hearing."
There is no arguable error in that reasoning. This is a paradigm case to which the rationale for the existence of advocates' immunity applies. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, the High Court held that the public interest in the finality and certainty of judicial decisions provided both the rationale for the continued recognition of advocates' immunity, and determined the scope of that immunity (at [34], [35], [37], [52]). In explaining this, their Honours said:
"[35] … where a final order has been made resolving litigation, a claim that 'but for the advocate's conduct, there would have been a different result' is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are 'consequences flowing from … a lawful result … lawfully reached'. The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully.
…
[52] … The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity ..."
As the respondents submitted, the determination of Mr Golden's claim would require a relitigation of the issues in the earlier proceedings.
Mr Golden's submissions did not address this fundamental difficulty in his claim. Instead, so far as they can be understood, his submissions appeared to be, first, he had filed a notice of motion seeking a trial by jury. The primary judge addressed this point. The primary judge noted (at [17]) that at the hearing of the respondents' notice of motion for summary dismissal of the proceedings, he advised the applicant that the hearing of the applicant's motion for an order for trial by jury would need to await the outcome of the defendants' notice of motion for summary dismissal as there would be no point in hearing the applicant's motion before the respondents' motion. Whether the hearing should be before a jury could only be determined if the matter were fit to proceed to trial.
Mr Golden also submitted that the judge could not have absorbed the contents of a 905 page court book in the time he was able to devote to the matter. Most of its contents were irrelevant to the notice of motion for summary dismissal based on advocates' immunity. The primary judge noted that during the applicant's oral submissions, he identified his complaint against the respondents as being that they failed to present evidence at the hearing which should have been presented, failed to present evidence that he wanted them to present and which he made available to them, and failed to follow instructions as to the case he wished to pursue. In any event, the primary judge recorded that he had regard to all of the material in the court book and there is no reason to doubt that he did so, including by assessing its relevance, or lack thereof, to the issue before him.
For the balance of his submissions, Mr Golden accused the primary judge of being a tacit advocate for corruption. This was a scandalous submission that ought not to have been made.
Mr Golden submitted that to allow the respondents to rely on advocates' immunity as an answer to his claim would be to permit the continued covering up of the fraud he wished to expose in the earlier proceedings. He accused the court and its judges of being complicit in the cover-up.
Mr Golden fails to appreciate that the Court is not a commission of inquiry. Its function is to determine issues between parties according to law. It is clear that, in accordance with the law as to advocates' immunity established by the High Court, the claims Mr Golden would seek to ventilate against the respondents would be doomed to fail for the reasons identified by the primary judge.
In short, there is not even an arguable basis upon which the applicant's proceeding could succeed. The summons for leave to appeal from the orders below should be dismissed with costs.
[3]
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Decision last updated: 07 February 2022