Liascos v Walmsley

Judgment

1. A solicitor, Adrian Walmsley, seeks summary judgment against, or alternatively strikeout of the Amended Statement of Claim of, his former client, James Liascos.
2. Mr Liascos has commenced proceedings against Mr Walmsley. He seeks damages for negligence, breach of agreement and breach of fiduciary duties. The circumstances of the alleged negligence and breaches occurred in connection with litigation against Mr Liascos as one of four defendants for whom Mr Walmsley acted. Although 27 separate items of conduct constituting negligence and breach of agreement and three items of breach of fiduciary duty are alleged against Mr Walmsley in the Amended Statement of Claim, 13 were abandoned before me. Mr Liascos has summarised the 17 remaining items of conduct as representing two principal areas of complaint: 1. Mr Walmsley failed to advise Mr Liascos that he should be separately represented; and 2. Mr Walmsley failed to maintain or commence cross‑claims in the proceedings.
3. While there appear to be challenges that Mr Liascos faces in relation to both of these complaints on a number of grounds, for the purposes of this application Mr Walmsley relies principally on the advocate's immunity doctrine.
4. The principal authorities governing advocate's immunity include Giannarelli & Shulkes v Wraith (1988) 165 CLR 543, D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Donnellan v Woodland [2012] NSWCA 433. I considered these decisions and others in Kendirjian v Lepore [2014] NSWDC 66 and stated, omitting references, that the immunity: "includes work done out of court which leads to a decision affecting the conduct of a case in court… [6] Controversies once resolved are not to be reopened except in a few narrowly defined circumstances…The principle of finality, although the rationale for the immunity, does not mean that the immunity only applies when there is a challenge to a judicial order. The immunity extends to claims for wasted costs in cases resolved by judicial order…Beazley JA [Donnellan v Woodland [2012] NSWCA 433 at [198]] stated: 'If the giving of advice, or the omission to give advice, led to a decision to continue with the case, or meant that the case was continued because of that omission, such conduct would lead to a decision affecting the conduct of the case in court, namely, its continuance by way of full argument before a judge.' … [18] It is not easy to identify any operative negligence by legal representatives in litigation that does not fall within the immunity as explained in Donnellan v Woodland. [19] The very matter that establishes causation enlivens the immunity. If the negligence did not impact upon the decision of the court, then it was not causative of loss, so the immunity is unnecessary. But if it impacted upon the decision (whether by consent or after a trial), then it is also likely to have led 'to a decision affecting the conduct of the case in court', and is therefore within the immunity."