Plaintiff v Defendant

1 These reasons concern an application for summary judgment brought by the defendant, MM LP Holding Pty Ltd (trading as Margalit Injury Lawyers) ('firm'), against the plaintiff, Mr Tavis Magriplis‑Hampton, a former client of the firm.

2 The firm offers legal services primarily in the areas of personal injury, road accidents and public liability law.

3 The plaintiff retained the firm in or about January 2020 to provide legal representation and advice in relation to spinal injuries he sustained in the course of his employment as an apprentice electrician, which preclude him from pursuing his chosen career as an electrician. The plaintiff instructed the firm to take the necessary steps to bring a claim for damages at common law against his former employer ('employer').

4 In his statement of claim in this proceeding, the plaintiff claims that the firm was negligent in providing him with legal services. The plaintiff alleges that by reason of the firm's negligence, he has lost the prospect of recovering damages for economic loss from the employer.

5 A worker's entitlement to claim common law damages for a personal injury sustained during the course of employment is governed by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRCA'). The WIRCA establishes certain 'gateways' through which a prospective plaintiff seeking common law damages must pass. A worker must first apply to the Victorian Workcover Authority ('VWA') for what is commonly known as a serious injury certificate. A worker may apply for a serious injury certificate for one or both of pain and suffering (general) damages, and/or economic loss. The latter is relevant to the current dispute.

6 If the VWA refuses the application, then the worker may make an application to a court, in practice the County Court, for a serious injury certificate and for leave to bring a proceeding for damages at common law. An application for a serious injury certificate is usually conducted by way of a short trial, largely by way of affidavit evidence and expert reports. The purpose of a serious injury application is to determine the worker's eligibility to issue a proceeding seeking common law damages in relation to one or both of the two identified categories of loss, with questions of liability (including causation) and the quantum of any damages being left to be determined at the trial of any common law action.

7 There was no real dispute between the plaintiff and the VWA about the severity of his injuries, or the plaintiff's incapacity to return to his pre-injury employment. However, the VWA disputed the plaintiff's claim to be entitled to seek damages for economic loss. This is because, after he ceased working for the employer, the plaintiff worked for, and then purchased a majority shareholding in, a business providing property maintenance and repair services ('business'). The business is managed by the plaintiff, and employs a number of specialist tradespeople (including electricians) to provide its services, but also engages sub-contractors on an as needed basis. By reason of his injuries, the plaintiff's work in the business is limited to an administration and marketing role. However, the business generates a healthy income, such that there was a real question mark over whether the plaintiff has suffered, or will suffer a loss of income sufficient to satisfy the statutory test to be eligible for a serious injury certificate for economic loss.

8 Section 325(2)(e)(ii) of the WIRCA provides that a worker is not entitled to a serious injury for economic loss unless the worker[1]:

... will, after [the relevant date] continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 percent or more.

9 The plaintiff's loss of earning capacity fell to be determined in accordance with common law principles, not the statutory formula in s 325(2)(f) of the WIRCA applicable to workers aged over 26 years of age at the time of injury.

10 The firm made an application to the VWA for a serious injury certificate for economic loss on behalf of the plaintiff ('VWA application'), which was rejected by the VWA. The plaintiff then instructed the firm to issue a serious injury application in the County Court seeking a serious injury certificate and leave to bring a common law proceeding seeking damages for both pain and suffering and economic loss ('serious injury application'). The trial of the serious injury application ('trial') was heard by Judge Pillay on 1 June 2021, and on 9 June 2021 Judge Pillay dismissed the serious injury application, on the basis that the plaintiff had not established that his earning capacity was impaired by the requisite 40 percent.

11 The plaintiff says that his failure to obtain a serious injury certificate for economic loss was a direct consequence of the firm's negligence in failing to provide the VWA, and then the County Court, with evidence which would have established an impairment to his earning capacity of at least 40 percent. As a consequence, in any common law proceeding brought by the plaintiff against the employer, the plaintiff is confined to seeking damages for pain and suffering only.[2]

12 The following is a brief summary of the relevant chronology of events:

The plaintiff first suffered a spinal injury during the course of his employment.

The plaintiff retained the firm to provide legal advice and legally represent him in relation to a personal injury claim against the employer.

The firm briefed Ms J Zhu of counsel for the purpose of preparing the VWA application.

The firm received a memorandum of advice from Ms Zhu and provided a copy of Ms Zhu's advice to the plaintiff.

The firm lodged the VWA application seeking a serious injury certificate for both pain and suffering damages, and damages for economic loss.

VWA offered the plaintiff a serious injury certificate for pain and suffering damages only on the condition that the plaintiff does not pursue his claim for economic loss.

The firm issued the serious injury application in the County Court.

The solicitors for VWA, IDP Lawyers, served a notice pursuant to Section 4 Part A2 of the Workcover (Litigated Claims) Legal Costs Order 2016 (Vic) offering to consent to orders entitling the plaintiff to seek damages for pain and suffering if the plaintiff abandoned his claim for damages for economic loss.

The firm provided the plaintiff with further advice and held conferences with senior and junior counsel and the plaintiff.

The trial is heard by Judge Pillay. Mr V Morfuni KC and Ms J Zhu of counsel appeared on behalf of the plaintiff, instructed by the firm.

Judge Pillay granted a serious injury certificate with respect to pain and suffering damages but dismissed the plaintiff's application for leave to pursue damages for economic loss.

The plaintiff's appeal against the decision of Judge Pillay was heard by the Court of Appeal.

The Court of Appeal dismissed the plaintiff's appeal.

13 In his statement of claim filed on 24 May 2022, the plaintiff set out the matters relevant to the context in which this proceeding is brought, namely, the claim the plaintiff would have brought or may still bring against the employer with respect to his injuries, including particulars of the employer's alleged negligence and particulars of injury and loss of earnings. In relation to the latter, the plaintiff pleaded as follows:

Whilst the plaintiff has been able to establish At Your Maintenance Pty Ltd and to engage paid electricians to work for him the Plaintiff is unable to himself work as an electrician leading a team of electricians on site and thereby has suffered ongoing financial loss ...

14 As for his claim against the firm, the plaintiff pleaded, in summary, as follows:

(a) his retainer of the firm, and the duties owed by the firm to him in contract and tort;

(b) the firm breached its duty as it:

failed to exercise any or due skill, care or diligence in obtaining proper instructions and in obtaining supporting evidence to enable advice to be given and/or to advise the Plaintiff as to any cause of action or common law damages which might be available to him including the need for the Plaintiff to obtain serious injury certification with respect to both pain and suffering and loss of earning capacity.

(c) he provided particulars of the alleged negligence of the firm (see paragraph 69 of these reasons); and

(d) he claimed damages as follows:

... the Plaintiff has lost the prospect of recovering damages and damages by way of interest with respect to loss of earning capacity at an appropriate date of trial from [the employer] in respect of the injuries and the loss hereinbefore set out and has thereby been deprived of the said damages and damages by way of interest and interest thereon and has thereby suffered loss and damage.

Further, the Plaintiff has suffered loss and damage in filing proceedings in the Court of Appeal in an attempt to overturn the decision of the County Court including:

(a) court fees;

(b) counsel's fees to Mr A.D.B. Ingram KC of $44,000 and to Dr J.C. Plunkett of $22,000 in circumstances where Counsel were not retained on the basis that the [firm] had been negligent in the conduct of the County Court proceeding;

(c) costs and disbursements of [the employer] incurred in the Court of Appeal which have been estimated at $40,000.

15 In its defence filed on 19 October 2022, the firm:

(a) admitted that in January 2020 it commenced acting for the plaintiff in relation to his entitlements to compensation arising out of his injuries sustained during the course of his employment with the employer, and that it owed the plaintiff a duty to exercise reasonable skill and care in carrying out its retainer;

(b) denied that it was negligent or otherwise acted in breach of duty, saying further that:

(i) it sought advice from counsel regarding the plaintiff's claim for impairment benefits and the plaintiff's entitlement to damages for pain and suffering and loss of earning capacity;

(ii) it provided advice to the plaintiff on multiple occasions regarding his entitlement to damages for pain and suffering and loss of earning capacity;

(iii) it considered and obtained expert and lay evidence in support of the plaintiff's claim in the serious injury application;

(iv) the plaintiff acknowledged the difficulty in obtaining comparable wages of other electricians; and

(v) it sought and obtained the plaintiff's instructions on multiple occasions during the course of its retainer;

(c) denied that it had been negligent, and that its conduct had caused the plaintiff loss and damage, and said further that the plaintiff was aware of the risks and challenges of pursuing the appeal against the decision of Judge Pillay; and

(d) the defence concluded as follows:

Further the Defendant is immune from suit due to the principle of advocate's immunity, as the allegations against the Defendant relate to work that was either done in court, or work done out of court, which has a functional connection with a judicial determination.

16 The firm's application for summary judgment is made pursuant to s 62 and s 63 of the Civil Procedure Act 2010 (Vic) ('CPA'), on the basis that the doctrine of advocate's immunity applies to the firm's conduct that underpins the plaintiff's claims in this proceeding.

17 Alternatively, the firm makes an application pursuant to r 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') for the proceeding to be stayed on the basis that the plaintiff's claim is an abuse of process, frivolous and/or vexatious.

18 The firm relied on the following evidence in support of its application:

(a) an affidavit of Eleanor Madden of Lander & Rogers, the solicitors for the firm, affirmed on 22 December 2022; and

(b) an affidavit of James Richardson, a solicitor employed by the firm who had conduct of the plaintiff's file, affirmed on 28 February 2023.

19 Ms Madden's affidavit exhibited the materials filed in the serious injury application, including:

(a) the parties' respective court books;

(b) an affidavit sworn by the plaintiff on 28 May 2021[3];

(c) a further affidavit sworn by the plaintiff on 28 May 2021;

(d) an affidavit of the plaintiff's partner sworn on 31 March 2021;

(e) an affidavit of Andrew Stanistreet, a shareholder and employee of the business, affirmed on 7 April 2021;

(f) a report of Flexi Personnel dated 18 January 2021, which, among other things, provided details of its estimates of wages earned by employed electricians working in different industries and at different levels of seniority;

(g) a transcript of the trial;

(h) Judge Pillay's reasons delivered on 9 June 2021;[4] and

(i) the Court of Appeal's reasons delivered on 22 February 2022.[5]

20 In the plaintiff's affidavit prepared in May 2020, but sworn on 28 May 2021, under the heading "Economic loss consequences" the plaintiff set out his physical limitations following the injury, and his inability to be "on the tools" in the same capacity as if the injury had not occurred. The plaintiff also deposed that the work which the business subcontracts to other electricians could otherwise have been undertaken by him if not for his injury.

21 In the plaintiff's further affidavit sworn on 28 May 2021, the plaintiff, among other things, deposed as to the cost to the business of subcontracted electricians required to be engaged by the business by reason of him being unable to perform electrical work.

22 Mr Stanistreet is an electrician who, at the time of affirming his affidavit worked for the business and had a 10 percent interest in the business. The affidavit of Mr Stanistreet deposed as to the plaintiff's limitations and inability to work in the same capacity as he had prior to his injury. However, Mr Stanistreet's affidavit was of limited assistance to the plaintiff at trial, as his earnings from the business were comparable to the plaintiff's earnings.

23 The Flexi Personnel report dated 18 January 2021 considered the plaintiff's current work capacity and employment prospects. The report referred to, among other things, the plaintiff's injuries, current treatment, medications, self-reported functional tolerances and the effect of various matters upon the plaintiff's employment options. The author of the report observed:

Based upon the information provided to me from Tavis during his interview, had he not been injured; I have no reason to doubt that he would have continued in his trade as an Electrician and that he would have remained gainfully employed as a valued employee to any relevant organisation that could utilise his skills and knowledge, due to obviously having a passion and competency for this vocation.

...

However, as a result of his post-injury physical restrictions and impairments, Tavis has had to give away his intended career as an Electrician as he is unable to meet the physical demands required in this field of work. To his credit, he has continued to work post-injury and post-surgery, buying a home maintenance business in order to keep him in the workforce and earning an income. However due to his lower back injury, he is unable to participate fully in the business by undertaking the physical aspects of an Electrician's job. This has been detrimental to his current income and income potential as he has had to employ staff to work 'on the tools' as he is unable to do these jobs himself.

24 At the trial the plaintiff was cross-examined in relation to:

(a) the profitability of the business, and payments made by the business by way of salary and payments to unidentified associated persons;

(b) whether the business was "picking up" after a downward trend in work during the COVID-19 lock downs; and

(c) the salaries paid to employees of the business.

25 The transcript of the trial and the reasons of Judge Pillay show that the key issue in the serious injury application was whether the test for the loss of earning capacity in s 325(2)(e)(ii) of the WIRCA was satisfied. Senior counsel for the plaintiff submitted that the annual salaries of the possible jobs considered in the Flexi Personnel report in comparison to the plaintiff's current earnings from the business satisfied the 40 percent threshold for the reduction of the plaintiff's earning capacity.

26 The transcript also shows that there were discussions between counsel and his Honour regarding the plaintiff's actual earnings compared with his possible earnings as a subcontracting electrician. Counsel for the employer made submissions to the effect that the evidence of possible earnings of subcontractors of $70 to $90 per hour could not be relied upon to calculate the plaintiff's likely annual earnings but for the injury, as no evidence was led by the plaintiff in relation to the work hours of subcontracted electricians. Judge Pillay ultimately accepted those submissions.

27 Judge Pillay noted that the Flexi Personnel report provided 'sound, credible evidence'[6] of the plaintiff's likely earnings but for his injury. However, he found that the evidence about the earnings of employed electricians did not establish that the plaintiff had suffered a loss of earning capacity of 40% or more, and the plaintiff's application for a serious injury certificate for economic loss was rejected. The Court of Appeal upheld Judge Pillay's decision and reasoning.

28 Mr Richardson's affidavit provided further details regarding the VWA application, the serious injury application, the preparation for trial and the appeal.

29 Mr Richardson deposed in some detail as to what took place in the days leading up to the trial, as follows:

On 27 May 2021 at 2:30 pm, I attended a zoom conference with the Plaintiff, Mr Morfuni, and Ms Zhu at which we discussed the Plaintiff's evidence in support of his SI Application, including in respect of loss of earnings, and amendments which needed to be made to the Second Affidavit.

At this conference, Mr Morfuni suggested leading evidence from the Plaintiff in the proposed Second Affidavit that he had lost the ability to hire himself out as a subcontractor electrician within his own business at market rates. This was different than the Plaintiff's initial instructions about what his future work plans had been, as set out in the Plaintiff's First Affidavit at paragraph [80]. We discussed that the Plaintiff's proposed Second Affidavit would need to include further information, including a reference to the rates at which the Plaintiff could subcontract out for electrical work.

Later this same day at 3:27, I emailed Ms Zhu and Mr Morfuni a copy of the Plaintiff's draft Second Affidavit which I had amended following the conference earlier that day to include information about the subcontracting rates in line with Mr Morfuni's suggestion. At 5.12pm on this same day, I instructed my assistant, Marlena, to send the Plaintiff the Plaintiff's draft Second Affidavit...

On 27 May 2021 at 9.55pm, I received an email from the Plaintiff making some comments regarding the Plaintiff's draft Second Affidavit regarding his claim for economic loss...

On 28 May 2021 at 10.44am, I instructed my assistant, Marlena, to send the Plaintiff the updated Plaintiff's draft Second Affidavit. I believe this email attached the final version of that affidavit, because it was ultimately sworn by the Plaintiff that same day...

On 28 May 2021 at 2.15pm, I was copied to an email from my assistant, Marlena, to Mr Morfuni regarding the email he had sent the day prior regarding what should be included in .the Court Book. In this email, my assistant Marlena asks Mr Morfuni to confirm "exactly what [he] requires from [Margalit] in relation to what the [Plaintiff] could be in [sic] earning if he was able to work 'on the tools'"...

On Saturday 29 May 2021, I received an email at 3.09pm from Ms Zhu querying why Mr Morfuni's recommended changes had not been incorporated into the final version of the Plaintiff's draft Second Affidavit which had been uploaded to the court book.

Ms Zhu's email forwarded an email which Mr Morfuni had attempted to send to me on 27 May 2021 at 4.05pm with amendments to the Second Affidavit in red, following my email sent to him on 27 May 2021 at 3.27pm, but Mr Morfuni had inserted the wrong email address in the recipient line of this email. I therefore did not receive this email on 27 May 2021...

I responded to Ms Zhu's email on Monday 31 May 2021 at 8.36am to advise that Mr Morfuni had emailed my old email address and queried how to best deal with the mistake. Ms Zhu emailed me back on this same day and advised that she had spoken to Mr Morfuni, and that counsel would "have the client give the update to the affidavit in the witness box rather than have another further affidavit sworn in short succession to the first two."

...

Due to COVID-19 restrictions in place at the time, the OM Hearing was conducted via Zoom. The parties were all appearing in different locations, and the Plaintiff was appearing at his home.

At no stage before the hearing did Mr Morfuni or Ms Zhu advise me that the hearing of the OM should not proceed because of the state of the evidence about economic loss capacity or that the matter should be adjourned to try and obtain further evidence about economic loss capacity. As I have set out above, they and I had identified that it would be difficult for the Plantiff to prove that he had suffered a 40% loss of earning capacity but he was adamant that he wished to proceed with his application for leave to claim damages for loss of earning capacity.

At the hearing, Mr Morfuni called the Plaintiff to give evidence. He had the Plaintiff adopt his two affidavits, but he did not lead further evidence from the Plaintiff as he had previously indictated [sic] that he would do. ... I do not know why Mr Morfuni did not lead further evidence from the Plaintiff or his reasons for deciding not to do so.

30 Mr Richardson exhibited to his affidavit what appears to be a significant portion of the firm's file in relation to the serious injury application, including:

(a) some email exchanges between the firm and Ms Zhu of counsel between May 2020 and May 2021;

(b) selected correspondence between the firm and the VWA's solicitors between September 2020 and January 2021;

(c) letters of advice from the firm to the plaintiff regarding his economic loss claim between September 2020 and June 2021;

(d) draft affidavits prepared by counsel and the firm;

(e) correspondence between the firm and Mr Stanistreet and Flexi Personnel about the evidence to be tendered at trial;

(f) records of instructions provided by the plaintiff to the firm;

(g) a file note of the conference on 27 May 2021 referred to in Mr Richardson's affidavit;

(h) emails between the firm and Ms Zhu and Mr Morfuni KC in relation to the court book in May 2021;

(i) the draft second affidavit of the plaintiff marked up by Mr Morfuni KC but not seen by Mr Richardson before the plaintiff swore his second affidavit; and

(j) the transcript of the hearing of the appeal to the Court of Appeal.

31 Mr Morfuni KC suggested two changes to the draft second affidavit in his misdirected email of 27 May 2021, which are marked up below:

'During the course of running the business, as I am not able to work on the tools, I have had to subcontract work to electricians. This work is subcontracted out at between $70 to $110 per hour. Had I not been injured I would have been able to do the work myself thereby increasing the profitability of the business.

...

'If I did not suffer the injury, I would have been able to work full time and do contract work as an electrician and I would have been able to charge $110.00 per hour and would have been earing [sic] in excess of $200,000.00 gross per year. My injuries prevent me from doing that work and I am dependent on my business continuing to operate.

32 The plaintiff did not file any evidence in opposition to the firm's application for summary judgment.

33 In summary, the firm submitted that the plaintiff has no real prospect of success by reason of the operation of the principle of advocate's immunity, on the basis that the plaintiff's claim amounts to an impermissible attack on the judicial determination of the serious injury application, and the firm is immune from suit with respect to the acts and omissions complained of by the plaintiff in his statement of claim.

34 The firm referred to the principle reaffirmed by the decision of the High Court in D'Orta-Ekenaike v Victoria Legal Aid ('D'Orta-Ekenaike')[7], as follows:

At common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court[8].

35 The firm submitted that the negligent conduct alleged by the plaintiff falls within the scope of advocate's immunity, as the plaintiff's claims in this proceeding are premised on an allegation that the result in the serious injury application would have been different had the plaintiff's case been properly prepared and presented at the trial.

36 The firm relied upon the decision in D'Orta-Ekenaike[9] to support its submission that the principle of finality of litigation means that the administration of justice would suffer if proceedings were able to be relitigated under the guise of a negligence claim.

37 The firm submitted that the scope of the immunity is not confined to acts or omissions in the course of conducting a trial in court, as observed in the following statement of the High Court's decision in Giannarelli v Wraith[10]:

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.[11]

38 The firm also referred to the decision of the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd[12] which stated that there must be a "functional connection" between the advocate's work and a decision of a court for the defence of advocate's immunity to be enlivened[13], holding that the immunity does not extend to the settlement of proceedings that do not involve a determination of the outcome of a proceeding by the exercise of judicial power.[14]

39 The firm submitted that courts are alert to attempts to circumvent advocate's immunity by attempting to attribute an adverse finding by a court to earlier acts and omissions in the preparation of a case for trial.[15] The firm submitted that, in the current case, the plaintiff's attempts to frame the firm's conduct as being out of court conduct is ineffective to avoid the application of the immunity. The preparation of evidence before the commencement of a proceeding where the proceeding was ultimately judicially determined also falls within the scope of advocate's immunity, as it is not too remote from the conduct of the proceeding in court.[16]

40 The firm submitted that the claim that the plaintiff brings in this proceeding is analogous to the claim considered in D'Orta-Ekenaike[17], as the plaintiff's claim in this proceeding concerns the firm's conduct in preparing and presenting evidence as to the plaintiff's loss of earning capacity in the serious injury application, including the evidence adduced at the trial. The firm submitted that this conduct is intimately connected with the serious injury application, and thus is an impermissible collateral attack on the judicial determination of the serious injury application.

41 The firm submitted, in the alternative, if summary judgment was not to be granted, the statement of claim should be struck out, as it is difficult to understand. Further, the statement of claim fails to plead the counter-factual scenario required to be pleaded in actions where a plaintiff is relying upon allegedly negligent omissions of a defendant. In that regard, the firm relied upon the decision of the Court of Appeal in Wodonga Regional Health Service v Hopgood[18], where the Court held that where a claim concerns negligent omissions on the part of a defendant, the plaintiff is required to expressly plead what the defendant would have done had it exercised reasonable skill and care, and how that would have led to a different outcome, thus avoiding the loss and damage said to have been suffered by the plaintiff.

42 In response, in his written outline of submissions, the plaintiff submitted that the firm, being a firm specialising in personal injury matters, would have known or ought to have known the principles governing applications for serious injury certificates for economic loss.

43 The plaintiff submitted that the decision in Bolitho v Banksia Securities Ltd (No 18) (remitter)[19] supports the proposition that solicitors "cannot escape liability for lack of diligence on the ground that counsel has been briefed"[20].

44 The plaintiff identified the following series of events as being relevant to the merits of the plaintiff's claims in this proceeding:

(a) on 2 September 2020 the firm wrote to the plaintiff stating that the central issue in the serious injury application was the need to prove the economic loss suffered by the plaintiff in his prospective employment path;

(b) in May 2021, the firm prepared a draft affidavit for the plaintiff ('draft affidavit') in which the plaintiff deposed, among other things, that the plaintiff had wanted to own his own business, and work in both a practical "on the tools" capacity and administrative capacity for the business, and that his injuries meant that he must sub-contract out work that he could have otherwise completed himself;

(c) on 25 May 2021, Ms Zhu of counsel provided advice on the draft affidavit, recommending that the plaintiff obtain "evidence, ideally from lay witnesses, who could attest to how much his loss was, for example his friends who were qualified around the same time as him and now have their own businesses... Because he employs electricians, he knows how much they make and therefore how much he would be making but for injury";

(d) the evidence filed in the serious injury application failed to identify the likely earnings of the plaintiff as a sub-contracted electrician and was insufficient to meet the requirements of s 325(2)(e) of the WIRCA;

(e) on the day before the trial, Mr Morfuni KC advised that on the evidence provided by the plaintiff's evidence would not satisfy the test under the s 325(2)(e) of the WIRCA; and

(f) no evidence was adduced during the trial as to the earnings of sub-contracted electricians despite the advice from counsel referred to above.

45 The plaintiff submitted that on the basis of the matters outlined above, the plaintiff has a real prospect of success in this proceeding, as had the firm not been negligent in its preparation of the serious injury application, the outcome of the serious injury application would have been different.

46 The plaintiff submitted that advocate's immunity is not enlivened in circumstances where the firm was advised by counsel prior to the trial of the serious injury application of the evidence which it was necessary for the plaintiff to adduce at trial.

47 The plaintiff submitted further that the firm's decision to allow the serious injury application to proceed to trial, despite the absence of the evidence necessary to prove the plaintiff's loss of earning capacity, does not fall within the scope of advocate's immunity and would not amount to a re-litigation of the matters determined at the trial. The failure of the firm to adduce evidence of the type described above which on the advice of counsel should have been obtained does not infringe on the principle that "controversies, once resolved, are not to be re-opened".[21]

48 The summary above was prepared on the basis of the written submissions filed on behalf of the plaintiff in the days leading up to the hearing of the application. In the course of the hearing of the application, counsel for the firm criticised the plaintiff's written submissions for completely failing to engage with the authorities relied upon by the firm in its submissions regarding the application of the principles of advocate's immunity to the plaintiff's claims in this proceeding.

49 However, in his oral submissions during the course of the hearing, senior counsel for the plaintiff submitted that the authorities relied upon by the firm were irrelevant to the current application, because the focus of the plaintiff's claims in this proceeding was the VWA application, not the serious injury application, or the trial.

50 As I now understand the position, the plaintiff contends that the firm was negligent in its preparation of the VWA application, which relied upon an affidavit of the plaintiff prepared in May 2020, but not sworn until 28 May 2021, a few days prior to the trial. Given that the VWA application was made in accordance with a statutorily prescribed non-curial process, the doctrine of advocate's immunity affords no defence to the firm in relation to its acts and omissions with respect to the VWA application. I assume the counter-factual scenario relied upon by the plaintiff is to the effect that, if the firm had prepared and produced evidence which would have shown a loss of earning capacity of more than 40%, it was more probable than not that the VWA would have been persuaded to grant the plaintiff a serious injury certificate for economic loss, thus obviating the need for the plaintiff to bring the serious injury application.

51 Senior counsel for the plaintiff submitted that the affidavit provided to the VWA in support of the VWA application should have contained all of the evidence necessary to make good the plaintiff's claim for a serious injury certificate for economic loss, and that affidavit, notwithstanding that it was subsequently deployed in the serious injury application, was prepared for a purpose other than litigation, namely the VWA application.

52 As for the firm's complaint about the absence of any pleading of a counter-factual scenario in the statement of claim, senior counsel for the plaintiff observed that the form of the statement of claim in this proceeding is materially similar to the statement of claim drawn by him in Rosa v Galbally & O'Bryan (a Firm)[22], where the plaintiff was successful in obtaining damages against her former solicitor, which were increased on appeal, and no complaints were made by the other party or any Judge of the Court about the form of the pleading.

53 There was no dispute between the parties regarding the legal principles applicable to applications for summary judgment, being the principles governing the operation of s 62 and s 63 of the CPA.

Defendant may apply for summary judgment in proceeding

A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

...

Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

...

Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

55 In the current application, the firm presses for summary judgment on the basis that the plaintiff's claims in this proceeding are legally untenable, not factually untenable. While it denies that it was negligent in the conduct of the VWA application and the serious injury application, it is not necessary for me to reach any conclusions about the firm's conduct in order to determine the firm's application.

56 Accordingly, the only relevance of the extensive (and uncontested) evidence relied upon by the firm in this application is to the question of whether the conduct complained of by the plaintiff is so intimately connected with the conduct of the trial that the firm is immune from suit by the reason of the principle of advocate's immunity. If there is any real doubt as to whether the impugned conduct is intimately connected with the conduct of the trial, the application for summary judgment must fail. While ordinary the Court would be loath to grant summary judgment where there are significant factual disputes between the parties, it is not unusual for the question of whether the principle of advocate's immunity offers a complete defence to legal practitioners being sued by their former clients to be dealt with summarily, at an early stage of the proceeding.

57 In Taseska v Carus (No 3)[23], the plaintiff claimed that the defendant law firm had been negligent in its conduct of proceedings regarding a knee injury and psychological stress suffered by the plaintiff in the course of her employment. In granting summary judgment in favour of the law firm (in part) on the basis that the plaintiff was attempting to relitigate matters that had been determined in other proceedings, I made the following observations:

the principle of finality in litigation is fundamental to public confidence in the administration of justice, and that the doctrine of advocate's immunity, while not necessarily directly relevant here, is but one application of that fundamental principle.[24]

58 In the current application, the question of whether the firm is immune from suit by reason of the doctrine of advocate's immunity is directly engaged. In its decision in D'Orta-Ekanaike,[25] the High Court explained the rationale behind the doctrine of advocate's immunity as follows:

The 'unique and essential function' of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be re-litigated. Yet re-litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client.

The question is not, as may be supposed, whether some special status should be accorded to advocates above that presently occupied by members of other professions. Comparisons made with other professions appear sometimes to proceed from an unstated premise that the law of negligence has been applied, or misapplied, too harshly against members of other professions, particularly in relation to factual findings about breach of duty, but that was not a matter argued in this Court and should, in any event, be put to one side. Nor does the question depend upon characterising the role which the advocate (a private practitioner) plays in the administration of justice as the performance of a public or governmental function.

Rather, 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.[26]

(citations omitted)

59 Advocate's immunity does not extend to all conduct of legal practitioners during the course of litigation. In Attwells v Jackson Lalic Lawyers Pty Limited[27] the High Court rejected an invitation to reconsider its decision in D'Orta-Ekanaike[28] regarding the existence of the advocate's immunity, but held that the scope of advocate's immunity does not extend to negligent advice which leads to the settlement of a claim in a civil proceeding. The rationale behind this conclusion was that as a proceeding which has resolved by agreement has not been the subject of a judicial determination, the public interest which the doctrine of advocate's immunity is intended to protect, being the public interest in finality of litigation, is not compromised by actions in negligence brought against legal practitioners with respect to conduct which does not move litigation towards a determination by a court.[29]

60 The proposition that the rationale underlying the doctrine of advocate's immunity is to prevent challenges to judicial determinations has been reinforced by the High Court in Kendirjian v Lepore,[30] as follows:

To attract the immunity, an advocate's work done out of court must bear upon the court's determination of the case. There must be a functional connection between the work of the advocate and the determination of the case rather than a mere historical connection.[31]

61 Accordingly, the critical question in the current application is whether the determination of the plaintiff's claim in this proceeding would require, in effect, a retrial of the serious injury application (and the subsequent appeal) and as such would offend the principle of finality in litigation. If so, the plaintiff's claims are untenable, and, all other things being equal, should be dismissed.

62 Prior to turning to this question, a preliminary issue arises, being whether I should determine the application on the basis of the current pleading of the statement of claim, or whether I should have regard to the materially different manner in which the plaintiff's case was put during the course of oral submissions at the hearing of the application. While no application was made by the plaintiff to amend the statement of claim, senior counsel for the plaintiff indicated that he would be amenable to an order granting leave to replead if I considered that it was necessary for that to occur to ensure that the statement of claim accurately reflects the case the plaintiff intends to advance at trial.

63 As noted earlier in these reasons, the nub of the plaintiff's submissions at the hearing of the application was to the effect that the doctrine of advocate's immunity does not apply to the plaintiff's claims in this proceeding, because the evidence which was said to be inadequate by reason of the firm's negligence was prepared for a purpose other than the trial, being the VWA application. As the VWA's decision to refuse to grant the serious injury certificate for economic loss was not a judicial decision, the public policy behind the doctrine of advocate's immunity is not compromised by the pursuit of the plaintiff's claims in this proceeding.

64 However, as I will explain further in more detail later in these reasons, the manner in which the plaintiff has put his case during the course of these submissions is not reflected in the statement of claim. For present purposes, and in the absence of full argument on the issue, I am prepared to accept that the firm's conduct in its dealings with the VWA prior to the issue of the serious injury application may be of quite a different character than the firm's conduct of the serious injury application for the purpose of determining whether the advocate's immunity defence is available to the firm, but the focus of the statement of claim as it currently stands is the serious injury application, and in particular, the trial.

65 At the conclusion of the hearing of the current application, as noted above, senior counsel for the plaintiff indicated that the plaintiff would be amenable to an order that he have leave to replead. I take that indication to be a concession that the pleaded case does not reflect the plaintiff's real case. When preparing these reasons, I did consider whether it would be appropriate to adjourn the hearing of the firm's application for a period of time in order to enable the plaintiff to get his pleadings in order. However, no application for an adjournment was made by the plaintiff, and the firm has gone to considerable effort and no doubt considerable expense to prepare and run its application, relying as it was entitled to do on the current version of the statement of claim. Accordingly, I will deal with the application on the statement of claim as it currently stands. However, the shifting nature of the plaintiff's case is relevant to what happens from here.

66 The allegations in the statement of claim are summarised in paragraphs 13 and 14 of these reasons. The allegations relevant to the current application are contained in paragraphs 9 to 14 of the statement of claim.

67 Paragraphs 9 to 11 concern the retainer of the firm, the scope of the retainer, and the duty of care owed by the firm to the plaintiff. They are expressed in sufficiently broad terms to encompass both the VWA application and the serious injury application.

68 However, while paragraph 12 of the statement of claim refers to 'the need for the plaintiff to obtain serious injury certification with respect to both pain and suffering and loss of earning capacity', which is also capable of encompassing both the VWA application and the serious injury application, it is apparent from the particulars of negligence under this paragraph that the focus of the plaintiff's complaints in this proceeding is the firm's conduct of the serious injury application.

69 These particulars provide as follows (emphasis added):

(a) Permitting the serious injury application filed on behalf of the Plaintiff to proceed to trial in the County Court when the Defendant knew or ought to have known that insufficient evidence had been procured to obtain a certificate of serious injury to enable the Plaintiff to pursue a claim for damages for loss of earning capacity;

(b) Failing to obtain evidence to demonstrate that the Plaintiff should be granted a certificate for loss of earning capacity including evidence of one or more of the following:

(i) failing to obtain comparative earnings figures from electricians conducting their own electrical contracting businesses;

(ii) failing to obtain expert evidence as to the amounts that electricians conducting their own electrical contracting business were able to earn;

(iii) failing to obtain evidence from the Plaintiff that had he not been injured he would have worked for long hours on the tools and performed any necessary administrative or management duties in the evenings so as not to impair his hours of work as an electrician;

(iv) failing to lead any or adequate evidence from the Plaintiff to establish that he had not suffered the injuries he would have had the capacity to generate earnings of more than the earnings now derived from the business At Your Maintenance Pty Ltd which he operates.

(c) Failing to investigate adequacy or at all the loss of earning capacity which the Plaintiff had suffered as a result of the injuries.

(d) Failing to investigate adequately or at all the manner in which the Plaintiff could best prove at a trial in the County Court the loss of earning capacity which he had suffered as a result of the injuries.

(e) Failing to adjourn the trial of the Plaintiff's serious injury application in the County Court so as to obtain a body of evidence to demonstrate that on the application provisions contained in the Accident Compensation Act 1985 the Plaintiff had suffered a loss of earning capacity entitling him to a grant of serious injury certification.

70 It was the conduct above which was said to have caused the plaintiff to lose the opportunity to recover damages from the employer for the plaintiff's loss of earning capacity, and the wasted costs associated with the appeal.

71 The plaintiff's submissions to the effect that the authorities relied upon by the firm concerning the scope of advocate's immunity were irrelevant because the plaintiff's claims concern an extra-curial process, being the VWA application, amount, in my view, to a tacit concession that the plaintiff's complaints regarding the inadequacy of the evidence gathering process leading up to and including the trial are barred by the principle of advocate's immunity. That, in my view, is a proper concession, given that the weight of authority is overwhelmingly in favour of the conclusion that decisions made and tasks undertaken connected with the preparation and presentation of evidence in court attract the defence of advocate's immunity.

72 There is no doubt in my mind, having regard to the current formulation of the statement of claim, and the evidence relied upon by the firm, including the reasons of Judge Pillay and the Court of Appeal, that the conduct complained of by the plaintiff in the statement of claim was intimately connected with the preparation and presentation of evidence for and at the trial and as such, the firm is immune from suit by reason of advocate's immunity.

73 The main issue in the serious injury application was whether the plaintiff could establish that he had suffered a loss of earning capacity of 40 percent or more. Given that he was under 26 years of age at the time of his injury, his past earnings were relevant, but not determinative of any loss of earning capacity, which fell to be determined under traditional common law principles.[32]

74 The plaintiff's position in the serious injury application was complicated by the fact that after his injury, the plaintiff commenced working in the business, which was, at least until the COVID-19 pandemic, quite successful, and his income fluctuated from year to year, despite the limitations caused by the plaintiff's injuries. In 2019/2020, he earned $80,362, which was less than 40 percent lower than the income he could have earned as an employed electrician, according to the evidence tendered on behalf of the plaintiff at the trial.

75 However, at the trial, the plaintiff contended that, had he not been injured, he would still have purchased the business, and, instead of hiring sub-contractors to do the electrical work, he could have done that work himself, earning $70 to $90 per hour. The plaintiff's contention, and the evidentiary difficulties associated with that contention, are explained in the following passage of Judge Pillay's reasons:

Turning to the question of the capacity in which he would have worked - that is an employed or subcontract electrician. The Plaintiff states that he always intended owning his own business and maintaining a role as a hands-on electrician as well as doing administrative tasks associated with the business. His second affidavit seems to imply that if he was to perform such a role he would obtain $70-$90 per hour for such a job. It is here that the Plaintiff's argument seems to break down. Accepting the Plaintiff's evidence, as I do, the conclusion must be reached that but for the injury he would have remained as a hands-on electrician in his own business. On occasion he could bill the business $70-$90 per hour or subcontract out at that rate but this could not be for 40 hours each week because there was still, on his evidence, the administrative side of the business to run. The Plaintiff has deposed that such was his intention and in accepting that evidence I am bound to the conclusion that he must have devoted some part of his working week to the administrative aspects of the business. How much is unclear as the affidavit material doesn't go that far. It might be thought that he would do at least 40 hours per week hands on work if it was available and the administrative hours in addition. Alternative scenarios also arise however. For example, if additional employees were hired that would have increased the administrative load and potentially reduced the hands on hours. Such enquiries end in speculation and cannot be relied on to found findings.

Neither does the evidence detail how many hours per week or on an annualised basis a subcontracting electrician makes. This is despite a Flexi Personnel report being tendered. In it the author was asked to consider the wage rates of numerous positions for qualified electricians. They were not asked and did not opine on the wages payable to a contract qualified electrician. No affidavit material was tendered from a subcontracting electrician with comparable earnings.

The Defendant made much of this. Mr Middleton, who appeared on behalf of the Defendant, argued that a bald reference in the Plaintiff's affidavit to the hourly rate of pay he pays to a subcontracting electrician was not sound evidence on which to base a gross weekly figure. There is some force to this submission given the court can only assess the evidence before it. I therefore am unable to find, as the Plaintiff urges me to, that Mr Magriplis-Hampton would have been employed in the capacity of a subcontracting electrician earning $70 per hour for 40 hours per week resulting in average gross weekly wage of $2800 but for the injury.[33]

76 The Court of Appeal agreed with His Honour's assessment of the evidence, as shown by the following passages of its reasons:

In our view, his Honour was right to conclude that the evidence led by Mr Margriplis-Hampton did not establish the necessary 40 percent loss.

We agree with his Honour's observation that it cannot simply be assumed, in the absence of evidence, or from the limited evidence set out above, that the earning capacity of a sub-contracting electrician, or of Mr Margriplis-Hampton were he engaged in that work, can be determined simply by reference to the hourly rate that a subcontracting electrician can charge. It cannot simply be assumed, in the absence of evidence, that the hourly rate can be achieved for 40 hours a week for 52 weeks a year. To take as an example, an electrician contracting out at $70 per hour for 35 hours a week for 48 weeks a year would receive $117,600 per annum, which would be insufficient for Mr Margriplis-Hampton's purposes. Further, on a 'common law' assessment the expenses of operating as a subcontracting electrician would have to be taken into account. There was no evidence from Mr Margriplis-Hampton that, for example, had he not been injured he would have worked for 40 hours a week 'on the tools' for 52 weeks a year, and performed the necessary administrative and management duties in the evenings. It is noteworthy that Mr Margriplis-Hampton in his own business employed electricians and plumbers at the lower employee rate, and only subcontracted them at the higher rate, in his words, 'a little'. It was incumbent on Mr Margriplis-Hampton to lead some evidence on these points if he were to establish the required loss. He did not do so.

We also agree with his Honour that Mr Margriplis-Hampton did not lead sufficient evidence to establish that, had he not been injured, he would have had the capacity to generate earnings of more than $123,915 in the business he now owns and runs. An analysis of the effect on the business were he to perform some of the 'hands on' electrical work himself could not sensibly be undertaken without some evidence that allowed an assessment of the number of hours of work that was done by contractors that would otherwise have been done by Mr Margriplis-Hampton and how that change would have affected the business's earnings. The passages set out above from Mr Margriplis-Hampton's affidavit were insufficient. They did not quantify the extent of that lost revenue, or set out facts that could allow the extent of any lost revenue to be assessed.[34]

77 Essentially, the plaintiff's allegations of negligence in this proceeding centre upon the firm's alleged failure to ensure that evidence was obtained to support the plaintiff's case at trial, and it was the failure of the firm to prepare and present that evidence which was said to have caused the plaintiff to fail in the serious injury application. It is frankly very difficult to see how the firm's alleged conduct in that regard could be characterised as anything but conduct intimately connected with, or conduct which affected the presentation of the plaintiff's case in court. As observed by Sackville JA in the decision of New South Wales Court of Appeal in Day v Rogers[35]:

The evidence adduced is central to the conduct of a case in court, and a decision on what evidence to lead or not lead is a decision affecting the conduct of the case in court. It does not matter that the decision is made prior to the hearing - such decisions should be made prior to the hearing, and the immunity is not confined to a decision made by the lawyer on his or her feet in court.[36]

78 His Honour also referred to the decision of the Court in Keefe v Marks[37], where Gleeson CJ referred to the following examples of out-of-court work which would be intimately connected with the conduct of the case in court:

... interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended.[38]

79 That the conduct of the firm in determining what evidence to prepare for the trial of the serious injury application was work intimately connected with the conduct of the case in court is illustrated by the evidence of Mr Richardson regarding his communications with senior and junior counsel in the days leading up to the trial of the serious injury application (see paragraph 29 of these reasons).

80 The substance of Mr Richardson's evidence is that both he and counsel were alert to the need to adduce evidence about the plaintiff's loss of opportunity to hire himself as a sub-contractor to the business at market rates. Owing to a misdirected email, the further affidavit sworn by the plaintiff failed to include the changes suggested by senior counsel to address that issue. However, Mr Richardson believed that senior counsel would address the issue by adducing the evidence from the plaintiff orally at the trial.

81 If Mr Richardson's evidence is to be believed (and, there is no reason to disbelieve that evidence, at least for present purposes), then it is at least conceivable that the plaintiff may also have a claim against senior counsel for failing to adduce the evidence from the plaintiff orally. Alternatively, the firm may also have a claim against senior counsel for contribution and/or indemnity for the failure to adduce that evidence. Such a claim would be inevitably met by what I would consider to be an unimpeachable defence of advocate's immunity, as the conduct complained of would be what senior counsel had or had not done 'on his feet in court'.

82 It seems to me to be illogical for the immunity available to counsel in those circumstances not to extend to the conduct of the solicitor concerning substantially the same decision: that is, the decision as to what evidence to adduce or not adduce at trial in support of the plaintiff's claim for a serious injury certificate for economic loss trial. The authorities make it clear that the advocate's immunity is referable to the nature of the work carried out, not the timing of the work, or whether the work is carried out by a barrister or a solicitor.[39]

83 Further, the fact that the immunity attaches equally to acts and omissions also shows that another proposition advanced on behalf of the plaintiff in opposition to the firm's application is inconsistent with the authorities. The plaintiff submitted that the advocate's immunity did not apply because, at the trial of the serious injury application, Judge Pillay did not make a positive factual finding: rather, he held that he could not make a factual finding because of the absence of any evidence about the plaintiff's potential earnings as a sub-contractor to the business.

84 I do not accept that submission. His Honour did make a positive finding: he found that the plaintiff had not established that he had suffered a loss of earning capacity of 40 percent or more. That the failure of the plaintiff's legal representatives to adduce evidence regarding the plaintiff's potential earnings as an electrical subcontractor was the proximate, or possibly the sole cause of his Honour not being so satisfied (as opposed to, say, the situation where evidence had been adduced but not accepted by a court) seems to me to be somewhat beside the point. A lawyer's decision not to adduce certain evidence may in many cases carry the same forensic significance as a decision to adduce particular evidence (as it was in the serious injury application), and is still intimately connected with the conduct of the case in court.

85 Accordingly, based upon the current pleading of the statement of claim, and in particular the particulars of negligence provided under paragraph 14 of the statement of claim, the defendant should have summary judgment in its favour. But there is a complication. As discussed earlier in these reasons, the way in which the plaintiff's case was presented in senior counsel's oral submissions was substantially different to the way in which it is framed in the statement of claim, and indeed the written submissions filed in opposition to the firm's application for summary judgment. In essence, senior counsel submitted that the plaintiff's claim only concerns the firm's preparation of the VWA application.

86 I understand the plaintiff's new case to be that, if the firm had not been negligent, and had compiled and prepared evidence to submit to the VWA which would demonstrate what the plaintiff could have earned as an electrician subcontracting to the business at market rates, then the VWA would have been persuaded to issue a serious injury certificate for economic loss, and there would have been no need for the serious injury application, or the appeal to the Court of Appeal. The plaintiff contends that the policy considerations underpinning the principles of advocate's immunity do not apply to a determination of the VWA, such that the defence of advocate's immunity would not be available to the firm.

87 As previously noted in these reasons, I have determined the firm's application upon the plaintiff's case as it currently stands in his statement of claim, not on the basis of what his counsel says it might be. Ordinarily, in those circumstances, the firm would be entitled to summary judgment in its favour. However, I am conscious that the plaintiff is a young man who has suffered what is by all accounts a serious, life changing injury, and is a former client of the firm. His failure to obtain a serious injury certificate for economic loss has no doubt significantly reduced the value of any claim he has or may have against the employer, such that the potential value of his claim in this proceeding may be substantial. Further, if I were to grant summary judgment in favour of the firm based upon the current statement of claim, it would be open to him to issue another proceeding against the firm directed at the firm's conduct of the VWA application, as his claim would still fall within the limitation period, although no doubt his claims could be met with an argument that there should be a stay of any new proceeding based upon the principles in Port of Melbourne Authority v Anshun.[40] I also suspect that the firm may wish to press its argument that advocate's immunity will apply to the preparation of evidence which was ultimately relied upon at a trial, even if it was prepared for a different purpose at the time it was prepared. However, it is not immediately obvious to me how giving the plaintiff the opportunity to at least try and plead a viable claim would cause the firm any prejudice which could not be cured by an order for costs.

88 Accordingly, rather than grant summary judgment in favour of the firm, I will grant the alternative relief sought by the firm in its summons. I will strike out the statement of claim, and stay the proceeding pursuant to r 23.01 of the Rules, on the basis that the proceeding is vexatious, frivolous or an abuse of process, as the firm's reliance upon the principle of advocate's immunity provides a complete defence to the plaintiff's claims in this proceeding, as currently framed. However, I will permit the plaintiff to apply to lift the stay[41], provided that the application is made within a reasonable period of time, and provided that the application is accompanied by a draft amended statement of claim. In the event that an application is made, the defendant's summary judgment application will be adjourned to the return date of the application. If no such application is made by a specified date, I will make an order that summary judgment be granted in favour of the defendant without the need for a further hearing.

89 I shall hear further from the parties as to the form of order required to give effect to these reasons, directions for the conduct of any further application, and the question of costs.

[1] If under the age of 26 when injured. The plaintiff was injured at the age of 23.

[2] There is no evidence as to whether the plaintiff has in fact brought a common law proceeding against the employer.

[3] This affidavit was sworn on 28 May 2021, but was actually prepared by Ms Zhu and the firm in May 2020, and provided to the VWA in in support of the VWA application on or around 27 May 2020. The VWA application is not in evidence.

[4] Magriplis-Hampton v Spendwalt Pty Ltd [2021] VCC 707.

[5] Magriplis-Hampton v Spendwalt Pty Ltd [2022] VSCA 15.

[6] Magriplis-Hampton v Spendwatt Pty Ltd [2021] VCC 707 [12].

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

[10] (1988) 165 CLR 543.

[12] (2016) 259 CLR 1.

[14] See Kendirjian v Lepore [2017] HCA 13; (2017) 259 CLR 275.

[15] See Keefe v Marks (1989) 16 NSWLR 713, 719.

[16] See Goddard Elliot (a firm) v Fritsch [2012] VSC 87 [794].

[17] [2005] HCA 12; (2005) 223 CLR 1.

[18] [2012] VSCA 326; (2012) 37 VR 284.

[19] [2021] VSC 666.

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

[22] [2012] VSC 3; [2013] VSCA 116.

[23] [2018] VSC 308.

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

[27] (2016) 259 CLR 1.

[28] [2005] HCA 12; [2005] 223 CLR 1.

[30] See Kendirjian v Lepore [2017] HCA 13; (2017) 259 CLR 275.

[32] See, for example, the decision of the New South Wales Court of Appeal in State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536.

[33] [2021] VCC 707 [8] - [10].

[34] [2022] VSCA 15 [12] - [14].

[35] [2011] NSWCA 124.

[37] (1989) 16 NSWLR 713.

[38] Ibid, 718 (referred to with approval by McHugh J in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [155]).

[39] See Goddard Elliot (a firm) v Fritsch [2012] VSC 87 [794] - [797].

[40] [1981] HCA 45; (1981) 147 CLR 589.

[41] It is permissible for the Court to lift a stay imposed pursuant to r 23.01 of the Rules if good cause is shown: see Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 [47], [49].