Court of Appeal (Vic)|2025-11-18|Before: Mr J, Niall CJ, Orr JA

For the reasons that follow, we would grant the application for an extension of time and refuse the application for leave to appeal.

The primary judge commenced her reasons by summarising the background to the proceeding, the submissions that had been made on the summary judgment application and the reasons of Daly AsJ in determining that application. The primary judge observed that the appeal was an appeal by way of rehearing, and that the applicant was therefore required to identify error. She noted that in seeking to demonstrate error, the parties had in substance reiterated the submissions they had made on the summary judgment application.[17]
The primary judge observed that the parties did not dispute that the principle of advocate's immunity operated where work was done in, or was directly connected with work done in, a court. The point of difference between the parties was instead whether the principle applied to determinations concerning whether a plaintiff has a serious injury.[18]
The primary judge stated that Daly AsJ had carefully considered the pleadings and determined that the allegations made in the statement of claim safely fell within the High Court's articulation of the doctrine of advocate's immunity in D'Orta-Ekenaike v Victoria Legal Aid, and . She indicated that she 'agreed[d] entirely' with the reasoning of Daly AsJ.

In written submissions, the applicant accepted that whether advocate's immunity applied depended on whether there was a controversy before a court that was quelled by judicial determination. However, he submitted that the consequence of the impugned conduct of Margalit was to prevent him from bringing a controversy before the court by way of a proceeding at all.[27] The 'true' controversy was not the determination by the County Court as to whether the 'gateway'[28] test for a serious injury was met, but whether he was entitled to damages from his employer for a loss of earning capacity arising from an admitted workplace injury alleged to have been caused by the employer's negligence. As a consequence of his failure to establish that he had relevantly suffered a serious injury, the 'true' controversy concerning his loss of earnings could not be judicially determined. It followed, the applicant submitted, that no question arose as to whether the conduct of his lawyers was so intimately connected with work done in court in respect of the serious injury application so as to attract the immunity - the conduct of his lawyers could not and did not attract any immunity from suit.
In support of this submission, the applicant pointed to the decisions of the High Court in Attwells and Kendirjian v Lepore. He submitted that in Attwells, a majority of the Court held that an advocate's immunity from suit is confined to conduct of the advocate which contributes to a judicial determination, and does not extend to acts or advice that do not move litigation towards a determination by a court, such as advice that leads to a settlement by agreement. This was so even though a settlement is given effect by a consent order of the court, because such an order 'does not impute any finding to the court'.[29] Thus, he submitted, the High Court described the consent order made following settlement in Attwells as an order that 'made no finding of fact or law which resolved the controversy between the parties'.[30] And in Kendirjian v Lepore, the High Court explained the decision in Attwells on the basis that the immunity does not extend to advice that leads to a settlement between the parties because it attaches by the 'participation of the advocate as an officer of the court in the quelling of the controversies by the exercise of judicial power'.[31]
The applicant also relied on the statement of the High Court in Attwells that 'the immunity is not justified by a general concern that disputes should be brought to an end, but by the specific concern that once a controversy has been finally resolved by the exercise of judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong'.[32] Here, the applicant submitted, there could be no collateral attack on any judicial determination because s 335 of the WIRC Act precluded any proceeding being brought for judicial determination. The controversy was 'no more judicially determined by the County Court's findings and orders than by the orders concerning the settlement in issue in Attwells'. The applicant also pointed to s 336 of the WIRC Act, which meant that no finding on a serious injury application gave rise to any issue estoppel in any proceedings.
The applicant also sought to draw an analogy with a case that is, as a result of the negligent conduct of an advocate, not advanced until after the expiration of a limitation period. Although the bar might only be enlivened by a defendant pleading it as a defence, and might only take effect by a summary dismissal order made by a court, it could not be said that the advocate was immune from suit, because the very consequence of the advocate's conduct was to preclude a court from hearing any controversy by way of a proceeding. It was, the applicant submitted, not the engagement of a court's jurisdiction by making orders that was relevant or determinative of the application of the immunity, but whether a controversy before the court was quelled by judicial determination.
In oral submissions, the applicant's submissions changed. The applicant abandoned his earlier contention that there had been no judicial determination of a controversy in the County Court. He expressly accepted that the determination in the County Court proceeding involved the quelling of a controversy by the exercise of judicial power. However, he submitted that a hearing in a court of an application for leave to bring common law proceedings under s 335(2) of the WIRC Act was a hearing of a nature that did not attract advocate's immunity. Citing Swannell v Farmer,[33] the applicant submitted that a person seeking leave to bring proceedings in such an application has no suit or cause of action. The determination of such an application therefore does not finally determine any rights. Further, citing statements of the High Court about advocate's immunity being based on the need to protect the finality and certainty of judicial determinations,[34] the applicant submitted that there was no danger that his negligence claim against Margalit would offend the principle of finality, because he was not seeking by that claim to impugn the determination made by the County Court.
The applicant accepted that interlocutory hearings are generally of a nature that attracts advocate's immunity, but said this was because interlocutory decisions are generally functionally connected to a trial. The subject matter of interlocutory hearings is therefore almost always necessarily bound up in the way that the 'cause' is to be conducted. But in the case of serious injury applications, the connection between the hearing of such an application and any subsequent trial was no more than 'historical'.
The applicant accepted that the consequence of his argument was that the work done by a barrister in court on a serious injury application would also not be protected by advocate's immunity.
To the extent that the applicant's submissions raised arguments that had not been made below, he sought leave to make those submissions on the bases that the hearing below was interlocutory, that the submissions could not have been met by calling evidence, that the submissions were novel, and that the submissions were made in circumstances where the findings below permanently precluded him from bringing a cause of action.
In its written submissions, Margalit submitted that the determination in the County Court proceeding quelled a justiciable controversy between the parties through the exercise of judicial power. The controversy was whether the applicant was entitled to leave to commence a proceeding for damages for loss of earning capacity. Margalit submitted that the applicant should not be permitted to now contend that this was not the 'true controversy' between the parties, because this argument was not raised at the hearing before the primary judge (or at the hearing of the summary judgment application). In any event, Margalit submitted that this distinction was unsupported by authority. And even if it were correct, the 'true controversy' had been resolved. By reason of s 338 of the WIRC Act,[35] the applicant was precluded from making another application under s 335(2)(d). Margalit submitted that by the combination of the County Court's orders and s 338, the applicant's employer had no liability to pay damages to the applicant for loss of earning capacity.
At the hearing, after the applicant's change of position, Margalit emphasised that the key finding of the primary judge was that the determination of the County Court proceeding held all the characteristics of a judicial exercise of power which quells a controversy.[36] There was, Margalit submitted, now no suggestion that this finding was erroneous. In any event, Margalit submitted that there was no support for the applicant's further new argument that only some controversies quelled by the exercise of judicial power attract advocate's immunity. To the contrary, such a distinction was said to be precluded by High Court authority.[37]

Disputes about whether the principle of advocate's immunity applies to work undertaken by a solicitor have tended to focus on the question of whether that work is 'intimately connected with' work undertaken in a court.[38] This case involves a different type of dispute. The applicant accepts that the impugned conduct of Margalit was 'intimately connected with' work undertaken by the applicant's counsel in the County Court proceeding. However, the applicant contends that the principle of advocate's immunity does not apply to any legal work in connection with that proceeding, because the controversy that was quelled by the exercise of judicial power in the proceeding is such that it does not attract the principle of advocate's immunity.
The applicant did not raise this argument before the primary judge, choosing at that stage to dispute the application of the principle of advocate's immunity by focusing on the interlocutory nature of the determination in the County Court proceeding, relying on the characterisation of the relevant provisions in the WIRC Act as 'gateway' provisions. Nor did the applicant raise this argument in written submissions in this Court, choosing at that stage to contend that the determination in the County Court proceeding had not resolved the 'true controversy' between the parties, being whether the applicant was entitled to damages from his employer for his loss of earning capacity.
The failure to raise the argument at either of the two stages in which the proceeding has been in court is reason enough to reject it. An appeal to the Court of Appeal is designed for the correction of error and it is not in the interests of justice to permit the applicant to run an entirely new argument at this point. In any event, the argument that the applicant now wishes to make cannot be accepted.
The principle of advocate's immunity is that an advocate (barrister or solicitor) cannot be sued by his or her client for negligence in the conduct of a case in court, or in work done outside court that is intimately connected with the conduct of the case in court, in the sense that it leads to a decision affecting the conduct of a case in court and therefore affects its outcome by judicial decision.[39] An intimate connection between work done outside court and the conduct of a case in court is not to be ascertained merely by the timing or proximity of the work to the hearing.
The immunity rests on considerations of public policy, namely the adverse consequences for the administration of justice that would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings.[40] Its foundation is the 'central and pervading tenet of the judicial system' that 'controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances'.[41]
The applicant did not direct us to any authority that supports the proposition that the application of the principle depends on the type of controversy that has been resolved. That is unsurprising, given that the High Court has generally framed the principle not by reference to particular categories of cases, but by reference to the public need for decisions of courts, unless set aside or quashed, to be accepted as incontrovertibly correct.[42]
As the High Court has recognised, the paradigm case in which a disappointed client seeks to sue an advocate is a case where the advocate's negligence is alleged to be a cause of the client 'losing the litigation'; in such a case, what the client seeks to challenge is the 'final result' of the litigation.[43]
The applicant has lost the litigation he commenced in the County Court, in which he sought leave to commence a proceeding for damages in respect of his loss of earning capacity. The 'final result' of that litigation is that he is now unable to commence a proceeding seeking such damages. The County Court's determination has quelled the controversy about whether the applicant should have leave to bring a common law claim for loss of earning capacity.
We reject the applicant's submission that his proceeding against Margalit involves no challenge to the correctness or finality of the County Court's determination. The essence of the applicant's claim is that had his case been properly prepared by Margalit, the result in the County Court proceeding would have been, or at least might have been, different. Were it otherwise, the applicant would have no cause of action against Margalit, because he would be unable to point to any loss as a result of its conduct.
The applicant's attempt to avoid the application of the principle of advocate's immunity is also not assisted by the characterisation of s 335(2)(d) of the WIRC Act as a 'gateway' provision,[44] or by the finding of this Court in Swannell that an applicant for leave to commence proceedings for common law damages has no cause of action in respect of his injury unless and until such leave is granted.[45] Swannell was concerned with whether s 93 of the Transport Accident Act 1986 - a serious injury gateway provision in respect of injuries as a result of transport accidents - was a substantive provision or merely procedural in nature. The Court held that it was substantive provision, which did not merely bar a remedy. A cause of action did not arise unless the serious injury provisions of the Act were met by the putative plaintiff.[46]
Neither the gateway epithet nor the finding in Swannell alters the fact that the County Court's determination has quelled the controversy about whether the applicant should be granted leave to commence proceedings for damages in respect of his loss of earning capacity. Neither matter takes the conduct of an application made under s 335(2)(d) of the WIRC Act, or work that leads to a decision affecting the conduct of such an application, beyond the scope of the principle of advocate's immunity.
Finally, even if the outcome of the County Court proceeding were to be characterised as some form of 'intermediate' or 'interlocutory' result rather than a 'final result', the High Court has expressly eschewed the notion of treating such a result any differently for the purpose of the application of the principle of advocate's immunity.[47]
For these reasons, the applicant's submission that the principle of advocate's immunity does not apply to legal work in connection with applications under s 335(2) of the WIRC Act is without merit. The distinction the applicant has sought to erect in order to place such legal work beyond the reach of the immunity cannot be sustained. The decision of the primary judge to dismiss the appeal from the decision of Daly AsJ is correct.

The application for leave to appeal will be refused. As we understand the orders made by Daly AsJ, her Honour's intention was that the proceeding be dismissed unless the applicant sought to replead his case. The applicant not having done so, we consider that orders should now be made dismissing the proceeding. We will hear from the parties on costs and the final form of orders.

[5] WIRC Act, ss 325(1) (definition of 'serious injury'), (2)(b)-(c).

[6] WIRC Act, ss 325(2)(e)(i)-(ii). Otherwise, measurement of loss of earning capacity is determined by the application of the statutory formula set out in s 325(2)(f).

[8] Magriplis-Hampton v Spendwatt Pty Ltd [2021] VCC 707.

[9] Magriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15.

[10] Magriplis-Hampton v MM LP Holding Pty Ltd [2023] VSC 150.

[11] The pleading of the applicant's case was confusing. He referred in parts of his statement of claim to 'serious injury certification' and the negligent failure of Margalit to prepare the case for such certification. The County Court does not issue certificates. It gives an applicant leave to bring proceedings: WIRC Act, s 335(2)(d). The VWA issues a certificate to bring proceedings: WIRC Act, s 335(2)(c). In any event, at each of the three hearings the applicant relied solely upon the alleged negligent conduct of Margalit in the preparation and conduct of the County Court proceeding.

[12] Pursuant to ss 62 and 63 of the Civil Procedure Act 2010.

[14] Magriplis-Hampton v MM LP Holding Pty Ltd [2023] VSC 150, [71]-[72], [77].

[15] Magriplis-Hampton v MM LP Holding Pty Ltd [2024] VSC 440 ('Reasons').

[16] Under the 'Other applications' section of his application for leave to appeal, the applicant foreshadowed that he 'proposes to bring an application to adjourn the hearing of this application behind any hearing concerning a proposed amended Statement of Claim adding an alternative cause of action in accordance with the Court's Orders below, and which ought be before this Court at the same time as the present Statement of Claim in issue'. On 4 October 2024, the applicant's solicitors informed the Court that the applicant no longer wished to pursue an application for an adjournment.

[19] (2005) 223 CLR 1; [2005] HCA 12 ('D'Orta-Ekenaike').

[27] Citing Swannell v Farmer [1998] VSCA 104; [1999] 1 VR 299, 309 [32] (Batt and Buchanan JJA, Callaway JA agreeing at 300 [1]); [1998] VSCA 104 ('Swannell').

[28] Citing Victoria WorkCover Authority v Brassington [2021] VSCA 236, [46] (Beach, Kaye and Osborn JJA) ('Brassington').

[29] Citing Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555, 564 [17] (French CJ); [2012] HCA 60.

[30] Citing Attwells (2016) 259 CLR 1, 26-7 [55] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2016] HCA 16.

[31] Kendirjian v Lepore [2017] HCA 13; (2017) 259 CLR 275, 285 [31] (Edelman J, Kiefel CJ agreeing at 278 [1], Bell J agreeing at 278 [2], Gageler J agreeing at 278 [3], Keane J agreeing at 278 [4], Nettle J agreeing at 278 [5], Gordon J agreeing at 279 [10]); [2017] HCA 13, quoting Attwells (2016) 259 CLR 1, 22 [38] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2016] HCA 16.

[32] Attwells (2016) 259 CLR 1, 21 [34] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2016] HCA 16.

[34] Citing, eg, Attwells (2016) 259 CLR 1, 24 [46] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2016] HCA 16.

[35] Section 338 of the WIRC Act provides that if a worker makes an application under s 328(2) in respect of an injury, the worker must not make a further application under that subsection in respect of that injury. Margalit referred to Museums Victoria v Susnjara [2021] VSCA 166, which considered the 'analogous' provision of s 134AB(21) of the Accident Compensation Act 1985.

[37] Referring to D'Orta-Ekenaike (2005) 223 CLR 1; [2005] HCA 12.

[38] See, eg, Attwells (2016) 259 CLR 1; [2016] HCA 16; Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13.

[39] Giannarelli v Wraith (1988) 165 CLR 543, 559-60 (Mason CJ); [1988] HCA 52 ('Giannarelli'); D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 9 [1], 31 [86] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 33 [94] (McHugh J), 112 [359] (Callinan J); [2005] HCA 12; Attwells (2016) 259 CLR 1, 11-12 [2]-[3], 24 [46] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2016] HCA 16.

[40] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 16 [31] (Gleeson CJ, Gummow, Hayne and Heydon JJ), citing Giannarelli (1988) 165 CLR 543, 555 (Mason CJ), 574 (Wilson J), 579 (Brennan J), 595-6 (Dawson J); [1988] HCA 52.

[41] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 17 [34], 20 [43] (Gleeson CJ, Gummow, Hayne and Heydon JJ); [2005] HCA 12; Attwells (2016) 259 CLR 1, 19 [30], 21 [34] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2016] HCA 16.

[42] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 29 [77] (Gleeson CJ, Gummow, Hayne and Heydon JJ); [2005] HCA 12, citing Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 273 (Deane and Gaudron JJ); [1994] HCA 42.

[43] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 27 [72] (Gleeson CJ, Gummow, Hayne and Heydon JJ); [2005] HCA 12.

[44] Brassington [2021] VSCA 236, [46] (Beach, Kaye and Osborn JJA).

[45] [1998] VSCA 104; [1999] 1 VR 299, 309 [32] (Batt and Buchanan JJA, Callaway JA agreeing at 300 [1]); [1998] VSCA 104.

[46] [1998] VSCA 104; [1999] 1 VR 299, 307 [21], 309 [32] (Batt and Buchanan JJA, Callaway JA agreeing at 300 [1]); [1998] VSCA 104.

[47] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 30 [82] (Gleeson CJ, Gummow, Hayne and Heydon JJ); [2005] HCA 12.

Injury Rehabilitation and Compensation Act 2013

Court (General Civil Procedure) Rules 2015

Compensation Act 1985

Magriplis-Hampton v MM LP Holding Pty Ltd [2025] VSCA 274 (18 November 2025)

Giannarelli v Wraith (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Kendirjian v Lepore [2017] HCA 13; (2017) 259 CLR 275; Swannell v Farmer [1998] VSCA 104; [1999] 1 VR 299.

Magriplis-Hampton v MM LP Holding Pty Ltd [2025] VSCA 274

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Magriplis-Hampton v MM LP Holding Pty Ltd [2025] VSCA 274 (18 November 2025)