Plaintiff v Defendant

1. The defendant was at all material times, a practicing solicitor of the Supreme Court of Victoria and was engaged in the conduct of a legal practice.
2. On or about February 2000, the Plaintiff retained and/or employed the Defendant to act on her behalf in and to provide advice in County Court proceeding number 9802439 of 1998 (hereafter called the County Court proceeding) (hereafter called the retainer).

The retainer was oral and was constituted by a conversation between the Plaintiff and the Defendant, in or about February 2000, in which the Plaintiff asked the Defendant, who had previously acted for her in a related proceeding, for him to refer her to a solicitor with expertise in these matters. The Defendant said, words to the effect, that "he had previously acted against the Defendant's former solicitor, Andrew O'Bryan for a client and won in a negligence action," and he expressed an interest in her case. The Plaintiff then requested the Defendant to act for her in the County Court proceeding and the Defendant agreed to act on her behalf.

(a) The Defendant would act fully and faithfully in accordance with the instructions of the Plaintiff.

(b) The Defendant would provide proper advice to the Plaintiff using all reasonable care.

(c) The Defendant would provide proper advice to the Plaintiff on the amount of damages that could be claimed and that were likely to be recoverable in the County Court proceeding.

(d) The Defendant would properly prepare the Plaintiff's case for the trial of the County Court proceeding.

(e) The Defendant would obtain all relevant medical reports and all relevant expert's statements and opinions that were required for the trial of the County Court proceeding.

Paragraph 4 of the particulars is not the subject of this application.

1. Further or in the alternative, the Defendant breached the terms of his retainer by the Plaintiff, by

(a) failing to provide any or any proper advice on the amount of damages likely to be recoverable in the County Court proceeding, in order for the Plaintiff to be able to make an informed decision on settling the County Court proceeding (it being denied that the Plaintiff did provide instructions to do so to the Defendant).

(b) failing to prepare the Plaintiff's case for trial properly or at all.

(c) failing to obtain sufficient medical reports and expert evidence so as to be able to properly advise the Plaintiff on the amount of damages that were likely to be recoverable in the County Court proceeding.

(d) failing to amend the statement of claim in the County Court proceeding by alleging the following causes of action; false imprisonment and malicious prosecution.

(e) failing to prepare or to serve up to date particulars of damage in the County Court proceeding.

(f) failing to amend the statement of claim in the County Court proceeding to include a claim for exemplary damages. ...

1. The Defendant failed to exercise reasonable care and skill in the course of the legal services that were provided in respect of the County Court proceeding and the abovementioned retainer, and was negligent, by ...

(c) failing to provide any or any proper advice on the likely amount of damages recoverable in the County Court proceeding in order for the Plaintiff to be able to make an informed decision on settling the proceeding (it being denied that the Plaintiff did provide any such instructions to the Defendant).

(d) failing to prepare the Plaintiff's case for trial properly or at all.

(e) failing to obtain sufficient medical reports and expert statements or opinions so as to be able to properly advise the Plaintiff on the amount of damages that were likely to be recoverable in the County Court proceeding.

(f) failing to amend the statement of claim in the County Court proceeding by alleging the following causes of action; false imprisonment and malicious prosecution.

(g) failing to serve up to date particulars of damage in the County Court proceeding.

(h) The Defendant failed to amend the statement of claim in the County Court proceeding to include a claim for exemplary damages.

2 On 11 May 2007 a summons was issued on behalf of the defendant returnable before the Master in this Court seeking orders that pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 that the proceeding be forever stayed or, alternatively, that judgment be entered for the defendant.

3 On 7 June 2007 Master Efthim concluded that the impugned work performed by the defendant and relied upon in the statement of claim as having caused loss and damage to the plaintiff was work "intimately connected" with a forthcoming trial and therefore the doctrine of advocates' immunity applied. The Master ordered that the claims listed in the paragraphs set out above be permanently stayed. The Master also made an order for costs and adjourned the hearing to a date to be fixed for further directions. Those orders did not entirely extinguish the plaintiff's claim but left a residual allegation that the plaintiff's County Court proceedings were settled on her behalf by the defendant without instructions.

4 On 7 June 2007 the plaintiff gave notice of appeal from the whole of the order made by Master Efthim and the hearing before me is that appeal. Being an appeal pursuant to Rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005, this is a re-hearing de novo of the application to the Master.

5 Order 23 makes provision for the summary stay or dismissal of a claim or the striking out of a pleading.

6 In the course of argument a number of cases were referred to by counsel for the plaintiff to underline the high standard which the defendant must reach before being able to succeed in an application of this kind. Mr Levine of counsel, who appeared on behalf of the plaintiff, also described in some detail the "particularly high onus" upon the defendant in order to succeed on the application. He referred to Dey v Victorian Railways Commissioners[1] and General Steel Industries Inc v Commissioner for Railways & Ors.[2] In essence he submitted that an analysis of the cases dealing with advocates' immunity meant that in this particular case there was a triable issue. I will describe how that argument is put shortly.

7 Particular emphasis was placed by counsel for the plaintiff on the statement of Barwick CJ in General Steel Industries:

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".[3]

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.[4]

9 A recent statement of the relevant principles concerning these applications is given by Charles JA (with whom Brooking and Callaway JJA concurred) in Coles Myer Ltd v Bowman where his Honour said:

In my view, the decision of the primary judge to dismiss the appeal was plainly correct. One does not need to cite authority for the propositions that: (a) an application to strike out a statement of claim on the grounds that it does not disclose a cause of action is to be refused unless the claim which is attacked is so clearly untenable that it cannot possibly succeed; and (b) the plaintiff's right to state his own case as he will, and to plead the facts which he contends will ground his claim, is not to be restricted unless it appears on the face of the pleading that the connection contended for between the facts alleged and the claims which are made is bound to fail.[5]

10 There was no dispute about this from counsel for the defendant and with those principles firmly in mind, I turn to consider the substantive issue.

11 Before dealing with the central issue in this case, it is necessary to give a brief summary of the factual basis for the plaintiff's action. This is based only on the plaintiff's case, since I am required to take the case at its highest for the purpose of this application. The plaintiff engaged the defendant to act on her behalf in February 2000 in relation to an existing proceeding in the County Court. The plaintiff claims that due to the inattention paid to her case by the defendant she terminated his retainer on 24 March 2000, but that despite that occurring, the defendant consented to settle the proceedings on 28 March 2000 without having her instructions to do so. The trial was listed to commence on 30 March 2000. In May 2004, orders were made which gave effect to the agreement that judgment should be entered for the plaintiff in the sum of $108,000.00.

12 The plaintiff claims that the sum offered and accepted on her behalf by the defendant of $108,000.00 was a very small fraction of what might have been recovered in the proceedings. The total of damages which she claims she lost the opportunity to recover was $1,894,000.00. As Mr Christie of counsel for the defendant acknowledged that I must do, I accept that all the allegations made by the plaintiff about the conduct of the defendant are true and can be proved, and that her loss is as she has quantified in the proceedings in this Court.

13 The essential issue in this case is whether or not the immunity for advocates articulated by the High Court in Giannarelli v Wraith,[6] and reaffirmed in D'Orta-Ekenaike v Victoria Legal Aid & Anor,[7] applies to the allegations made against the defendant in this case in the portions of the statement of claim I have quoted above. I do not have to decide that issue and do not do so but I must consider whether the proceedings as they stand are "untenable" and "bound to fail".

14 For the purpose of dealing with that question it is necessary to review the basis of the plaintiff's proceedings with particular reference to the point of legal principle. It is also necessary, at least to some extent, to state the law, but without expressing any concluded view about the plaintiff's prospects of success.

15 On behalf of the plaintiff, the fundamental point that Mr Levine seeks to make is that this case is distinguishable from cases like Giannarelli and D'Orta-Ekenaike because the real policy of the High Court's judgment in the latter case is that when a court has engaged on analysis of the merits of the case and come to a decision, it is against public policy that the court's decision should be able to be re-litigated through proceedings against advocates for breach of retainer or negligence. Therefore, the actions of advocates intimately connected with the preparation of the case and its conduct are covered by the immunity. That immunity applies both to the conduct of the case in court, as well as work down out of court intimately connected with the conduct of the case in court.

16 To apply that policy to this case, Mr Levine submits that that policy rationale falls away when there has not been a determination of the case on the merits by a court requiring the protection of the principle of finality and, therefore, the immunity does not apply. In this case the action was settled before the trial commenced. Although orders were made by a judge of the County Court by consent, as referred to above, that in turn became complicated because the plaintiff wished to withdraw from being bound by the settlement. However it is common ground between the parties that the merits of her claim in the County Court were not litigated and the proceedings ended without a trial or even a portion of a trial.

17 A convenient starting point for examining the cases is Rondel v Worsley,[8] where the House of Lords held that a barrister was immune from an action in negligence in respect of the conduct and management of a case in court and the preliminary work connected therewith, including the drawing of pleadings. That was also a case like this where there had been an application to a Master for orders that a statement of claim be struck out on the basis that no cause of action was disclosed. Public policy was the important basis of this decision though that policy did not require immunity for matters unconnected with cases in court.

18 Rondel v Worsley and Saif Ali v Sydney Mitchell & Co[9] were at the foundation of Giannarelli. In his submissions before me, Mr Levine on behalf of the plaintiff placed significant reliance on the judgment of the House of Lords in Saif Ali. In Mr Levine's submission "... that case makes it very clear that settlement of a proceeding does not fall within the immunity",[10] and he went on to submit that if I was not bound by that judgment, given its treatment in Giannarelli, then it was at least very persuasive. The House of Lords did appear to wish to restrict the protection of the immunity in relation to out-of-court work to that which was absolutely necessary in the interests of justice.

19 Mason CJ said in Giannarelli that the issue in the case before the High Court was whether a barrister was liable in negligence to his clients who were tried and convicted of perjury, the negligence alleged against the barrister being a failure to advise them that they had a good defence to the proceedings and also a failure to object to certain inadmissible evidence tendered against them on behalf of the Crown.[11] The perjury was alleged to have arisen as a result of evidence they had given to the Commonwealth and Victorian Royal Commission into the Federated Ship Painters and Dockers Union conducted by Mr F X Costigan QC. In concluding that the negligence complained of in that case fell within the common law immunity, Mason CJ examined the considerations on which barristers' immunity must rest. In his opinion only two public policy factors warranted serious consideration:

The first relates to the peculiar nature of the barrister's responsibility when he appears for his client in litigation. The second arises from the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings.[12]

20 Mason CJ considered that exposing counsel to liability for negligence would encourage litigation by unsuccessful litigants anxious to demonstrate that but for the negligence of counsel a more favourable outcome would have been obtained. He noted that:

If the plaintiff were to succeed, the resolution of this issue by a different court and on materials which might well differ from those presented in the initial litigation, due to lapse of time or other reasons, would undermine the status of the initial decision. Yet an appeal against that decision might not succeed with the result that it would stand, though its status would be tarnished by the outcome of the collateral proceedings.[13]

21 His Honour went on to describe the effect on public confidence in the administration of justice as "destructive".

22 The next step in the process was to consider whether or not the grounds for denying liability for in-court negligence have any application to work done out of court which is unconnected with the work done in court. His Honour referred to a number of cases in concluding that the public policy considerations underlying the immunity for in-court negligence "have no relevance to a barrister's liability for negligent advice in relation to out-of-court matters" and I will return to those subsequently.[14] His Honour then posed a question:

... 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 activity such as drawing and settling of pleadings and the giving of advice on evidence?[15]

23 His Honour concluded that it would be "artificial in the extreme" to draw the line at the courtroom door. He considered that preparation of a case out of court cannot be divorced from presentation in court.

24 Wilson J considered that the common law principle of immunity from civil action for in-court negligence "derives support from the fundamental principle favouring finality of litigation". He went on:

This principle has been found necessary to conserve public confidence in the administration of justice. It is this confidence which would be most at risk if the appellants' case were to succeed.[16]

25 Counsel for the defendant in the proceedings before me relied heavily on the following passage cited from the judgment of Brennan J in Giannarelli:

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.[17]

His Honour agreed that the appeal in that case should be dismissed as it was.

26 In dealing with what his Honour described as the "weightier considerations", Dawson J referred to the public policy principle of finality. In his view:

... the availability of an action in negligence for the conduct of a case in court would subject the decision of the court to collateral attack by a client who sought to blame his barrister for the loss of the case. Not only would this mean relitigation of issues already decided, but the relitigation would be before a different tribunal after a lapse of time upon evidence which would not necessarily be the same. This would be bad enough after a decision in a civil case but would be intolerable after a criminal trial. The verdict of the jury would be impugned in a court of law and yet, assuming all avenues of appeal to have been exhausted, it would remain with all its consequences.[18]

27 However, his Honour thought that "the most cogent consideration" that was "[f]undamental to the administration of justice" was the opportunity which the law affords to those who participate in proceedings "to speak and act freely ... unimpeded by the prospect of civil process as a consequence of their having done so".[19] His Honour concluded:

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.[20]

28 In Boland v Yates Property Corporation Pty Ltd,[21] the High Court upheld an appeal against the Full Court of the Federal Court in relation to whether or not a solicitor had been negligent by holding that he had not been. The Court therefore upheld the original decision of Branson J which dismissed the damages claimed against Boland. The immunity issue did not arise because there was no negligence on the part of the appellants. That meant that any consideration of Giannarelli and whether it should be in any way modified was not embarked upon. In the judgment of Gleeson CJ, his Honour observed that:

... in relation to the practical application of the immunity to the circumstances of the present case, which was the point upon which there was disagreement between Branson J and the Full Court, the views of Branson J, which are in accordance with the majority opinion in Keefe v Marks, are to be preferred to those of the Full Court of the Federal Court. The Full Court, in its reasons for judgment, did not refer to Keefe v Marks. Branson J was correct in her application of that decision to the present case.[22]

29 Counsel for the defendant in the proceedings before me relies heavily on Keefe v Marks,[23] and points to the fact that that was a judgment of the New South Wales Court of Appeal at a time when the present Chief Justice of the High Court of Australia was the Chief Justice of that Court.

30 The New South Wales Court of Appeal in Keefe v Marks determined that the common law immunity of barristers from liability for "in-court" negligence extends to out-of-court work intimately connected with or ancillary to the conduct of the case in court. Gleeson CJ, as a member of the New South Wales Court of Appeal, in dealing with the distinction between in-court and out-of-court work and the "intimate connection" test said:

A rule of law which is said to be based upon considerations of public policy should not depend for its practical operation upon chance. Furthermore, it does not seem to me that a plaintiff can circumvent the immunity, simply by constructing allegations of damage in a manner which attempts to relate the harm suffered as the consequence of a barrister's alleged negligence to that aspect of his conduct furthest removed from physically standing up and speaking in Court. The statement of claim is to be read as a whole, and there is no doubt about what it is the barrister is said to have done that was wrong, or what form of harm befell his client. The barrister's alleged negligence involved a continuing course of conduct, or inaction, which extended up until the conclusion of the hearing before Master Greenwood and manifested itself in a failure to make a claim for interest, and to apply for any necessary amendment to the pleadings in order to enable that claim to be pursued.[24]

31 His Honour concluded that the principle of immunity could not be circumvented by "drawing fine distinctions" between the preparation and the conduct of the case or "between the opponent's failure to advert to the matter of interest while he was in his Chambers and his failure to do so while he was in Court".[25]

32 Priestley JA dissented concluding that it was "arguable that the negligence alleged in the statement of claim did not fall within the out-of-court immunity rule supported by the majority of the High Court in Giannarelli".[26] As I follow it, his Honour's dissent was more concerned with the facts of that case and his conclusion that the particular conduct under consideration did not fall within the "intimately connected" test. As his Honour noted, the Court was concerned with a strike-out application as I am. His Honour expressed the view that the matter should be returned to the District Court to be dealt with in accordance with law.

33 In D'Orta-Ekenaike the High Court rejected the invitation to abolish advocates' immunity as the House of Lords had done in Arthur J S Hall & Co v Simons.[27] As was noted in the judgment of the majority in D'Orta-Ekenaike (per Gleeson CJ, Gummow, Hayne and Hayden JJ), the House of Lords concluded that reconsideration of advocates' immunity was appropriate in the light of changes in the law of negligence, the functioning of the legal profession, the administration of justice, and public perceptions.[28] In Arthur J S Hall, three members of the House of Lords would have retained the immunity for criminal proceedings but a majority concluded that a collateral challenge in civil proceedings to a criminal conviction was "prima facie an abuse of process, and ordinarily such an action would be struck out," and therefore immunity from suit was not required to prevent such attacks.[29]

34 As I follow it, the High Court in D'Orta-Ekenaike primarily determined that the finality argument was particularly persuasive in the criminal context. In the judgment of the majority there were two principal matters to be considered. First, the place of the judicial system as a part of the governmental structure and, second, the role that advocates' immunity has in a series of rules designed to achieve finality where disputes are quelled by the exercise of judicial power. Their Honours noted that the "chilling effect" of the threat of civil suit against legal practitioners is not of "determinative significance".[30] In describing the principal rationale their Honours said:

... the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.[31]

35 This portion of the judgment raises the question of whether what is being discussed is the resolution of controversies by the exercise of judicial power in determining the issues or the resolution of disputes, however that occurs, against a background of existing litigation and preparation for it, whether or not a court finally determines the issues. In that context, the Court was of the view that it is the decision of a court, unless set aside or quashed, that is to be accepted as incontrovertibly correct whether civil, criminal or "hybrid".[32]

36 In my opinion it is arguable that where advocates resolve proceedings before trial and there is no quelling of the controversy by the exercise of judicial power involving the determination of the issues in the case, such activities and the work connected with them may fall outside the immunity articulated in D'Orta-Ekenaike.

37 I come to that view because there is a regular reference in the discussion in the High Court to public confidence in the judicial system and its connected public policy of finality. That is the reason why the immunity exists. It does not exist as a primary purpose to protect individual advocates (whether barristers or solicitors) except to the extent that they are an essential participant in the system of justice.[33] It seems to me that if public confidence in the legal system is an important consideration (and the High Court considers it is) then in a case like this it may be argued that public confidence is diminished by the application of the immunity rather than improved by it when a court through the exercise of judicial power has played no contributory role to the quelling of the dispute by deciding the case on its merits.

38 In his judgment in D'Orta-Ekenaike, McHugh J expressed the opinion that the Court should not overturn its decision in Giannarelli.[34] His Honour expressed the opinion that the appeal must be dismissed because advocates are not liable to be sued in damages for negligent conduct that is intimately connected with the hearing of a civil or criminal cause. Several of his Honour's comments in the course of his judgment attracted attention in the debate before me. The following passage causes some concern and although the length of the quoted passage is substantial it is significant to the issue in this case:

There is, of course, a greater public interest in maintaining confidence in the administration of criminal rather than civil justice. So, it is possible to sue a practitioner for the negligent settlement of proceedings or for the negligent loss or abandonment of a cause of action. Such claims lead to the litigation of a primary claim even if that claim can no longer be pursued. These results flow even though there is a public interest in the finality achieved through the statutes of limitations and the promotion of out-of-court dispute settlement. But where a trial has taken place, as the judgment of Gleeson CJ, Gummow, Hayne and Heyden JJ demonstrates, public confidence in the administration of justice is likely to be impaired by the re-litigation in a negligence action of issues already judicially determined.

The preservation of finality is a compelling reason why it is not appropriate to construct "allegations of damage in a manner which attempts to relate the harm suffered as a consequence of the barrister's alleged negligence to that aspect of his conduct furthest removed from physically standing up and speaking in Court." If a decision affects the conduct of a case in court, it can be viewed both as a course of conduct lasting from the decision until and including the last opportunity to change that course during the hearing, and as a potential, although unprovable, causative factor in the result. The context in which the decision is made, either physical or temporal, is thus of no relevance. The notion of the "calm of chambers" serves only to identify one factor supporting the restriction of the immunity, in respect of conduct not taking place during court proceedings. It does not follow that a decision, made out of court, and maintained in court, is outside the rationales for the immunity.

Accordingly, the immunity should extend to any work, which, if the subject of a claim of negligence, would require the impugning of a final decision of a court or the re-litigation of matters already finally determined by a court. On that basis, no distinction should be drawn between the role of a solicitor and a barrister in the context of advising a client regarding the entering of a plea in criminal proceedings. If the immunity were applicable to the barrister and not the solicitor in the present case, it would not serve the public policy purpose of preventing the rehearing of the applicant's charge. [35]

39 I thus take his Honour to be formulating the possibility that the fundamental basis of the existence of the immunity is that there was a determination of a dispute by a court exercising judicial power as a final determination and that in the absence of that determination the application of the immunity could not be assumed. Certainly the finality principle would have significantly less effect in a civil case settled by consent orders before trial than in a criminal case proceeding to verdict as occurred in D'Orta-Ekenaike.

40 In his dissenting judgment, Kirby J concluded that:

It follows from the foregoing analysis that any ratio decidendi of Giannerelli is confined to the immunity of barristers during the hearing of proceedings in court_. No binding rule is established applicable to barristers for_ out-of-court advice. No binding rule at all is established for the liability of solicitors. All remarks on those subjects are obiter dicta. Moreover, they are dicta that rest on the flimsiest of foundations in a sharply divided decision, where the deciding opinion of Brennan J differed from all others and supported the Court's orders on a hypothesis which that judge himself had earlier rejected.[36]

41 His Honour went on to make the point that the holding in Giannarelli "indisputably concerned allegations of in-court negligence"[37] whereas the applicant's case in D'Orta-Ekenaike involved allegations of out-of-court negligence. His Honour concluded that a binding legal rule that included out-of-court advisings and which extended to protect solicitors as well as barristers is an anomalous immunity. He expressed the view that such a decision was legally erroneous, unwarranted and unworthy.

42 The question arises as to whether there are any cases where negligence or breach of retainer were held not to actionable because of the immunity where those proceedings had been finalised by compromise before trial rather than by obtaining the judgment of a court. Biggar v McLeod[38] is such a case. In that case the defendant was a barrister and solicitor acting for the plaintiff in matrimonial proceedings and had advised the plaintiff that the proceedings could be settled on particular terms. It was later claimed by the plaintiff that the solicitor had misinformed her as to the terms of settlement and she brought an action for damages alleging negligence. Sommers J resolved a motion to strike out the plaintiff's action in favour of the defendant and the plaintiff appealed. A circumstance very similar to the present. The New Zealand Court of Appeal held that the work related to the conduct of litigation which was covered by the barrister's immunity and their Honours per Woodhouse, Richardson and Quilliam JJ expressed their conclusion in the following terms:

Once it is accepted that the immunity exists, as Mr Gray does accept, and that it extends to the conduct of litigation, then the simple question is whether the step of ending current proceeding by a compromise rather than by obtaining the judgment in due course should properly be regarded as part and parcel of the work of counsel in carrying forward the proceedings to a conclusion. I am in no doubt that this must be so.[39]

43 That case was decided in 1978 and, with respect, I am not sure that policy foundation for the law as it exists in Australia now is quite so straightforward as stated by the New Zealand Court of Appeal. In addition, a difficulty about placing any reliance on that decision which might ordinarily be regarded as persuasive is that in Lai v Chamberlains[40] the New Zealand Court of Appeal abolished advocates' immunity as no longer representing the law of that country. Although they pointed out that they were not overruling Biggar v McLeod, their decision was that the policy factors set out in Rees v Sinclair[41] and applied in Biggar v McLeod no longer justified the retention of the immunity.

44 The submissions of counsel for the plaintiff are already clear from what I have said to this point. In the course of his submissions before me, Mr Christie for the defendant argued that the primary question was whether the actions of the defendant which are said to be in breach of the retainer and/or negligent "have the necessary intimate connection with the conduct of the case to be said to be covered by the doctrine of advocates' immunity".[42]

45 In Mr Christie's submission, any distinction between circumstances where a case had been determined by a court on the one hand and settled on the other was not an appropriate distinction to determine the application of the advocates' immunity. He submitted that the rationale is related to the quelling of the dispute however it occurs. He also argued that the conduct of the legal practitioner is the same conduct whatever the outcome of the case. The real question, he submits, is whether the conduct is intimately connected with the conduct of the case and whether it comes on for hearing or is settled is really irrelevant to the public policy consideration. Were it otherwise, such a distinction would result in advocates "looking over their shoulder not knowing which way to turn"[43] and it might result in them saying, "Well, let's run it to verdict ... because then if I get sued I'll be able to plead the immunity".[44]

46 There is considerable force in that submission but to some extent at least it misses what I understand to be the point of the judgments of the High Court in D'Orta-Ekenaike and Giannarelli. The primary purpose of the immunity is a protection of the judicial process rather than a protection of the individual legal practitioner, although I accept that the argument is open that prima facie the protection of the legal practitioner is a necessary step in the principle of finality.

47 In the course of submissions I invited Mr Christie to comment on what I took to be the "nub" of the case to be put on behalf of the plaintiff. It was set out in paragraph 12 of the written submissions of Mr Levine and is:

There are no public policy considerations that would justify the Plaintiff being deprived of her right to sue her solicitor for the negligent advice that lead [sic] to her settling her case on extremely disadvantageous terms. It does not involve a collateral attack upon a court decision, or in fact involve the conduct of an advocate in court. It simply involves a consideration of the conduct of a legal practitioner and the advice provided to the Plaintiff.

48 In response Mr Christie submitted that there is a public policy consideration that arises from D'Orta-Ekenaike suggesting that disputes, once finally determined, whether by way of settlement or resolution by agreement or decision or final judgment of a court, ought not to be allowed to be re-opened subsequently.

49 I am not convinced that principle necessarily flows from the judgment of the High Court in D'Orta-Ekenaike. As Mr Christie submitted at the very outset of his submissions, he has the burden of establishing that those parts of the statement of claim sought to be permanently stayed disclose no maintainable cause of action.

50 I do not, and should not, express any concluded view about the debate I have heard concerning advocates' immunity but I find myself unable to say that the arguments of the plaintiff fall within any of the categories referred to by Charles JA in Coles Myer Ltd v Bowman - i.e. that the claim is so clearly untenable that it cannot possibly succeed or that if the plaintiff stated her own case on the face of the pleading the connection between the facts alleged and the claims which are made are bound to fail.

51 In my view, in this case the plaintiff is entitled to have this action dealt with at trial. It may be that after hearing the evidence and hearing the submissions similar to those I have heard, the trial judge will conclude that advocates' immunity applies and that that is a complete answer to the substantial portion of the plaintiff's claim. But I am not prepared at this stage to deprive her of her right to have that trial pursuant to Order 23, given that I consider that the argument sought to be made by the plaintiff is tenable and not necessarily bound to fail.

1. That the appeal dated 7 June 2007 against the orders of Master Efthim be allowed.

2. That the orders made by the Master authenticated on 8 June 2007 be set aside to the extent of orders 1 and 2.

3. That the defendant pay the plaintiff's costs of the proceedings before the Master and before me.

4. That pursuant to s 4 of the Appeal Costs Act 1998 (Vic), the defendant be granted an indemnity certificate in respect of costs for this appeal.

[1] [1949] HCA 1; (1948) 78 CLR 62 (hereinafter "Dey").

[2] [1964] HCA 69; (1964) 112 CLR 125 (hereinafter "General Steel Industries").

[3] [1964] HCA 69; (1964) 112 CLR 125 at 129.

[4] [1949] HCA 1; (1948) 78 CLR 62 at 91. See also Davis v Commonwealth [1986] HCA 66; (1986) 68 ALR 18 at 23 ("it is well settled that under a rule of that kind an order striking out a pleading or part of a pleading will only be made in a plain and obvious case").

[5] [1995] VICSC 219; [1996] 1 VR 457 at 459.

[6] [1988] HCA 52; (1988) 165 CLR 543 (hereinafter "Giannarelli").

[7] [2005] HCA 12; (2005) 223 CLR 1 (hereinafter "D'Orta-Ekenaike").

[9] [1980] AC 198 (hereinafter "Saif Ali").

[10] Transcript of Proceedings, Francis v Bunnett (Supreme Court of Victoria, Lasry J, 28 November 2007) at 51-2.

[11] [1988] HCA 52; (1988) 165 CLR 543 at 553.

[21] [1999] HCA 64; (1999) 167 ALR 575.

[23] (1989) 16 NSWLR 713.

[27] [2002] 1 AC 615 (hereinafter "Arthur J S Hall").

[28] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1 at 23, citing Arthur J S Hall [2002] 1 AC 615 at 678 per Lord Steyn; at 684 per Lord Browne-Wilkinson; at 688 per Lord Hoffmann; at 709-10 per Lord Hope of Craighead; at 728 per Lord Hutton; at 736-7 per Lord Hobhouse of Woodborough; at 752-3 per Lord Millett.

[29] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1 at 24.

[33] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 558.

[34] D'Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1 at 33.

[36] Ibid at 93 (emphasis in original).

[37] Ibid at 107 (emphasis in original).

[40] [2005] 3 NZLR 291.

[41] [1974] 1 NZLR 180.

[42] Transcript of Proceedings, Francis v Bunnett (Supreme Court of Victoria, Lasry J, 28 November 2007) 8.