(b) Determination on a strike out application
40The Plaintiff argued that it was inappropriate to determine the issue of advocate's immunity on a strike out application. This was because the authorities suggested that it was necessary for the Court to know and understand the whole factual matrix, and that would not be clear until the final hearing.
41The Plaintiff relied on what Giles JA said in Symonds in relation to the suggested need to await the evidence at the trial:
[40] It may not be easy to see a clear line between work done prior to the commencement of proceedings, such as advice on the prospects of success or on appropriate defendants and causes of action, and the conduct of the proceedings. It may not be easy, more particularly, to see a clear line between work done in the course of the proceedings and advice given in relation to compromise. Work done prior to commencement of proceedings can lead to decisions as to their conduct, and work done leading to decisions as to their conduct is likely to underpin advice in relation to compromise. More widely, work done leading to decisions as to the conduct of the proceedings is likely to govern whether the client is advised about preparedness for a hearing or about prospects as the hearing looms, and what advice is given. But there cannot be excluded negligent failure in these respects which does not satisfy the statement(s) of the test. Deciding the application of the immunity requires a clear understanding of what occurred and clear findings of the respect or respects in which there was negligence on the part of the lawyer.
...
[42] Courts are ordinarily, and properly, astute to come to decisions upon facts as found, and not upon assumed facts. The old procedure of demurrer operated, not always satisfactorily, on precisely pleaded allegations, but a notional demurrer cannot resolve the appeal. On a notional strike-out the high standard of unarguability for which General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 is conventionally cited is not achieved. As Ipp JA has pointed out, with reference to Keefe v Marks, fine distinctions should not be drawn and the immunity cannot be circumvented by the construction of allegations of damage. Fully appreciating that, in my opinion it cannot properly be determined on appeal that advocate's immunity applies so as to provide a complete defence to the appellants' claim against the respondent.
[43] As I have said, it may be that not all the breaches on which the appellants rely would have causal significance. The respondents sought to categorise them in such a way that, in their submission, the breaches would not have caused loss of the opportunity to recover damages from Egan. That too depends, in my view, on a clear understanding of what occurred and of the respect or respects in which there was negligence, and causation also cannot properly be determined on appeal on what amounts to an hypothetical basis.
[44] It may be that in the end it will be held that the appellants' claim is defeated by advocate's immunity. They no doubt will take advice. However, for the reasons above a new trial should be ordered. [emphasis added]
42The Plaintiff also relied upon what Harrison J said in Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510 at [37]:
[37] It follows that the view that I have expressed, that advocate's immunity does apply in the circumstances of this case, is a view arrived at upon what is predominantly an hypothetical basis. For example, I do not know what evidence might emerge at a final hearing concerning the advice that was sought or given about the settlement, whether relevant matters were adverted to or overlooked, whether the settlement reflected the terms that were explained to the plaintiffs or whether they were explained at all. I have no way of knowing whether the plaintiffs' liability as guarantors for the $1.75M was in some or any way discussed or considered in the course of advice to settle. I have not seen documents from the defendants' file in the original proceedings that may cast light on the issue one way or the other. Despite the preliminary and unfavourable (but admittedly hypothetical) opinion I have formed generally about the defendants' conduct as professional legal advisers to the plaintiffs at the time, it is obvious or at least prudent that I should not attempt to arrive at any final or concluded view on their prima facie liability in negligence, more so that I should not presume to act upon such a view, in order finally to evaluate the advocate's immunity defence. A comprehensive exposure and understanding of the negligence case against defendants' is likely reliably to inform the outcome of the advocate's immunity question, which should not be decided without it.
43The Plaintiff pointed also to particulars of negligence (h) and (i) in paragraph 24 of the Statement of Claim to suggest that the matters complained of in those particulars took the matter outside what was protected by the principle of advocate's immunity. That was said to be because coercion by a solicitor was behaviour that was proscribed. The Plaintiff pointed in that regard to what was said in Studer v Boettcher [2000] NSWCA 263 by Fitzgerald JA at [74] and [75] and by Sheller JA at [58].
44It is always important when considering an application for summary dismissal to reach a firm view that all of the relevant material is before the Court in terms of allegations that will be made and the evidence that can be led to support the allegations. In some cases it will be inappropriate to come to a view about whether there should be a summary dismissal of the claim or even (as in Atwells) where the issue is being determined as a separate question.
45In Donnellan v Woodland the issue arose for consideration whether the trial judge ought to have considered (a) if the Defendant had been negligent in the first place and then gone on to consider whether he was protected by advocate's immunity, or (b) if the latter determination should have been made first.
46Beazley JA (with whom Hoeben JA and Sackville AJA agreed) said:
[6] A preliminary question arises as to whether the advocates' immunity issue should be determined prior to any consideration of the other issues raised on the appeal. If, as I understand it to be the case, the principle underlying advocates' immunity is that of finality of litigation: see D'Orta-Ekenaike, there is an argument that a claim brought against a legal practitioner for negligence in the conduct of litigation should be determined, in the first place at least, by reference to the immunity. If the immunity applies, the question whether there is negligence becomes moot. That is another way of saying that the immunity is an immunity from suit.
[7] Against that approach is the argument that it may not be possible to determine whether the immunity attaches unless the negligent conduct is identified. Whilst the pleadings are the obvious starting point, they may not sufficiently enable that identification to be made. That was the position in Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85, discussed below. If the correct position is that the immunity should be determined prior to the determination of the question of negligence, an immunity claim ought properly be able to be dealt with on the pleadings by way of a strike out application pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 13.4 or r 14.28. This was the view of this Court in Bott v Carter [2012] NSWCA 89, especially at [11]. Bott v Carter itself involved an application to strike out the statement of claim. As the result in Alpine Holdings demonstrated, that may be a contestable result.
...
[9] For myself, I am not satisfied that there is a single correct approach. Rather, it will depend upon the circumstances of the particular case. If the pleadings on their face alleged negligence in the conduct of litigation falling into one of the three categories of consequence that flow from a practitioner's negligence: see D'Orta-Ekenaike at [70], discussed below at [166], it may be possible that the immunity question can be determined on the basis of the conduct alleged in the pleadings. There is a question, in any event, as to the extent of the reach of the immunity. As Basten JA, at [11], observed in Bott v Carter, "the immunity does not extend to all activities undertaken by legal practitioners, even in relation to disputes which may give rise to litigation". However, not every case will be so clear cut.
47Barrett JA also agreed with Beazley JA but said this:
[276] If the defence of legal practitioner's immunity from suit is available to meet a client's allegation of negligence against a lawyer who acted for the client in litigation, there is much to be said, as a matter of principle, for the proposition that the client's negligence action should be disposed of solely on that ground.
[277] If that course is not followed, there will arguably not be due regard for the principle of finality of litigation to which the High Court attached particular significance in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1. This is because trial of the negligence action on its merits (that is, by reference to the facts and circumstances beyond those going to the availability of the immunity) presents the possibility of findings and conclusions at odds with those in the case in which the lawyer acted for the client.
48Hoeben JA and Sackville AJA agreed with those remarks also.
49Basten JA went further and said:
[259] It was held in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, that the immunity from proceedings brought by a former client against a legal practitioner alleging negligence (or a related cause of action) in relation to the conduct of litigation depends on the principle of finality. That principle is offended by a reconsideration of the circumstances in which a final judgment has been obtained, otherwise than by way of appeal from, or judicial review of, the earlier proceedings. (There may be other exceptions, such as a challenge to a judgment procured by fraud.) In circumstances where the immunity applies, to address the merit of the claim before considering the defence would be to subvert the very principle upon which the defence is premised.
[260] Against that conclusion, it may be contended that the application of the immunity cannot be addressed until the precise scope of the dispute and the manner of its resolution has been determined. However, the availability of the defence cannot rest upon how the parties run the proceedings. If the defence is available, that must be ascertained from the pleadings and the potential scope of the proceedings so revealed. It is not to be assessed and determined only after the hearing of the merits, with its potential to diminish confidence in the proper administration of justice.
...
[262] The dilemma thus revealed is not an abstract question of principle in the present case. As noted by Beazley JA at [125], the primary judge actually reached a conclusion that Hamilton J had been wrong in a particular respect in assessing costs: [2011] NSWSC 777 at [165]. That finding directly subverted the principle of finality and cast doubt upon an order made by Hamilton J and, as it appears, one which had been the subject of an unsuccessful application for leave to appeal to this Court in the original proceedings. Where the defendant seeks to rely upon the immunity, the principle of finality will often be most efficiently upheld by an application for summary judgment once the pleadings are closed: see, as an example, Bott v Carter [2012] NSWCA 89. (emphasis added)
50As noted in Basten JA's judgment, Bott v Carter [2012] NSWCA 89 was a case involving a claim by a client against his solicitor and barrister who appeared in District Court proceedings brought by the client where he was unsuccessful. The Defendant sought summary dismissal relying on advocate's immunity.
51Basten JA (with whom McColl JA and Whealy JA agreed) said:
[10] ...[T]he purpose of permitting the appellant to put a reformulated pleading before this Court was not to reopen any question as to the adequacy of the earlier pleadings, but merely to allow this Court to be better informed as to the scope of the impugned conduct. It may further be accepted that if the Court were satisfied that any part of the impugned conduct fell outside the scope of the immunity and raised a cause of action with reasonable prospects of success, the appeal would be allowed and the appellant would be allowed to file a further pleading. However, it is not for this Court to speculate as to the mere possibility of a claim falling outside the area of the immunity; the case is to be decided on the basis of the specific material before the Court.
[11] The issue in dispute was, therefore, the scope of the immunity. Because the immunity does not extend to all activities undertaken by legal practitioners, even in relation to disputes which may give rise to litigation, it is necessary to understand the boundaries of the conduct complained of. Those boundaries are not to be determined as matters of fact, but by reference to the latest draft of a proposed statement of claim. Indeed, it should be emphasised that the assessment to be undertaken is based entirely upon the allegations contained in that document, none of which have been admitted and none of which have been found to have any factual foundation. They are to be understood, so far as they are referred to in these reasons, purely as allegations. The question to be determined by the Court is purely one of law, namely whether any of the allegations, if proved, would be capable of supporting a relevant cause of action.
52His Honour then approached the allegations in the Statement of Claim to see if issues could be identified which did not involve re-agitation of the District Court trial and judgment - see at [33].
53Basten JA concluded by saying:
[44] The foregoing analysis is based upon an assumption as to the accuracy of the allegations contained in the pleading which was put before this Court for the purpose of argument. That document, which was not before the primary judge, does not demonstrate that his decision to dismiss the proceedings generally was in error. Further, no findings are made or implied as to the truth or accuracy of the allegations.
54It may be accepted that the parties in that case addressed on the basis that the question was whether the proposed pleading was capable of supporting a cause of action in negligence against the lawyers and that no factual or discretionary was said to arise - see at [15].
55Further support for the view that it is, or may be, sufficient in an appropriate case to rely on the allegations made in the pleadings is to be found in the judgment of Hiley J in the Supreme Court of the Northern Territory in NT Pubco Pty Ltd v Strazdins [2014] NTSC 8 at [102]:
In my opinion in order for a court to decide whether the immunity applies in a particular case, the necessary starting point must be to identify the particular conduct which is alleged to give rise to the cause or causes of action against the lawyer - that is, the conduct that is said to have "led to a decision affecting the conduct of the case in court". This approach is important for several reasons:
(a) it helps one to identify and focus on the particular decision or decisions which are said to have affected the conduct of the case in court, rather than the way in which the particular allegations are formulated;
(b) it focuses attention upon the conduct alleged in the pleadings, rather than on the evidence that has been or might be adduced at trial;
(c) it leads to the conclusion that the immunity is not confined to any particular cause of action.
56Hiley J relied for (a) and (b) on what was said by Gleeson CJ in Keefe v Marks (1989) 16 NSWLR 713. It is significant to note that Keefe v Marks was an appeal from an order striking out a Statement of Claim under the then equivalent of r 13.4(1)(b) UCPR. Gleeson CJ (with whom Meagher JA agreed) said (at 717-8):
The statement of claim is expressed in terms which evidence an understanding of the difficulties which might confront the claimant by reason of this immunity, and that no doubt accounts for the pleader's understandable attempt to focus attention upon "the conduct of pre-trial work". However, a reading of the statement of
claim as a whole, and of the particulars of the allegations in it, makes sufficiently clear the nature of the complaint which was being propounded against the opponent.
...
The substance of the complaint that was made against the barrister is, in my view, simple and clear. It is that, having been briefed to act as counsel for Mr Tehfe in his action for damages for personal injuries, he did not at any relevant time, either prior to the commencement of the hearing, or during the hearing, direct his mind to the desirability of making on his client's behalf a claim for interest or take the steps necessary to propound such a claim and that his neglect in that regard produced the result that Master Greenwood failed to award interest and the Court of Appeal declined to intervene. As a consequence, it is alleged, Mr Tehfe did not recover his full entitlement. That, it is claimed, gave rise to a liability on the part of the opponent to Mr Tehfe, and the claimant seeks contribution or indemnity based on the existence of that liability. The question is whether a claim of that nature is within the area of immunity to which reference has earlier been made. Whatever may be the answer to that question, it does not
appear to me that it could depend upon the detail of the evidence adduced at a hearing of the District Court action. Indeed, the relevant principle of immunity would be capricious in its operation if its application in a case such as the present were made to depend upon the precise history or circumstances of the communications and dealings between the barrister and his solicitor and lay client. 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 a 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.
...
The substance of the allegation against the opponent is that he was negligent in the way in which he conducted Mr Tehfe's action, and the principle of immunity which applies in such a case cannot be circuvented 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. [emphasis added]
57In the present case the complaint is a clear and confined one. The allegations of breach are found in paragraphs 23, 25 and 26 of the Statement of Claim. All of those breaches concern the advice given, and the conduct of the solicitors, at the mediation. Reliance on the advice is pleaded in paragraph 27. Causation is pleaded in paragraph 29. The loss and damage particularised in paragraph 30 is expressly related to the settlement and the judgment entered.
58The Plaintiff read his affidavit of 15 April 2014 on the hearing of the Motion. That affidavit sets out in detail in paragraphs 29 to 47 the course of events at the mediation. Paragraphs 50 to 62 set out the course of events leading to the losses claimed by the Plaintiff.
59On the basis of what was said in Keefe v Marks, Bott v Carter, Donnellan v Woodland, especially by Basten JA, and Pubco, it would be sufficient to have regard only to the pleading in the Statement of Claim. In the present case the negligence relied upon is said to have been confined entirely to the mediation, the advice there given, and the solicitors' acts and omissions flowing from that advice. The case is an appropriate one to deal with on a summary dismissal application.
60However, I also have the evidence the Plaintiff will give to support and make out those allegations. I work on the assumption that all of that evidence will be accepted, as will the allegations in the Statement of Claim. A determination of the issue of advocates immunity cannot "depend upon the detail of the evidence adduced at the ... hearing" assuming that there is more to come. In any event, the Plaintiff was not able to point to any other facts or issues about which evidence might be adduced at a trial.
61The position in Symonds v Vass and Attwells was different. In Symonds v Vass the precise breaches by the solicitors were not clearly found or identified. More particularly, it was not clear which breaches were causative of what loss in circumstances where some of the breaches found were said not to be within the immunity - see at [13], [20] - [22], and [43] - [44].
62In Attwells Harrison J was asked to determine the separate question of whether the claim was entirely defeated by advocate's immunity on the basis of a statement of agreed facts. His Honour, for reasons set out at [27] - [28], [33] - [35] and [37] made clear that the material he had available was insufficient for determining the matter.
63Neither of those decisions stands as authority for any principle that in all cases it is inappropriate to reach a view on the immunity in advance of the trial. The need for more material in each arose from the particular factual substratum.
64The Plaintiff's further submission that proscribed behaviour, such as coercion of a client, falls outside the immunity, is said to derive from cases such as Studer v Boettcher and Harvey v Phillips (1956) 95 CLR 235 at 242. In those cases it was made clear that it is no part of the function of a lawyer to coerce the client into a settlement. Such conduct might result in a finding that the lawyer had engaged in unsatisfactory professional conduct or worse.
65However, the authorities do not support a conclusion that such conduct takes the matter outside the doctrine of advocates immunity. Indeed, the position is to the contrary.
66In D'Orta, the joint judgment said:
[39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:
"The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them." (footnote omitted)
...
[41] Statements can be found in the cases that the immunity of witnesses serves to encourage "freedom of expression" or "freedom of speech" so that the court will have full information about the issues in the case. Statements also can be found that place the immunity of those who participate in court proceedings on the desirability of avoiding baseless actions being brought against those who were merely discharging their duty, but these considerations are advanced in answer to another kind of argument. As Fry LJ said in Munster v Lamb:
"Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?"
The answer proffered (that it is more necessary to prevent the baseless action than provide for the kind of case described) may well suffice to meet the point. But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires relitigation of the matter out of which the complaint arises.
67In Young v Hones (No.2) [2013] NSWSC 1429 an issue arose concerning whether advocate's immunity was an answer to a pleading of breach of fiduciary duty and whether, if a lawyer did not act in good faith, advocate's immunity was a defence. Garling J said:
[171] As I have declined to permit the plaintiff to file the proposed Amended Statement of Claim, the issue of whether the advocate's immunity responds to a pleading of a breach of fiduciary duty does not strictly arise. However, counsel for the plaintiff did submit that the immunity only extends to circumstances where the solicitor or barrister is acting in good faith. This submission is founded on Swinfen v Lord Chelmsford (1860) 5 H&N 89; 157 E.R. 1436.
[172] The only judgment in which this aspect of Swinfen's case has been commented upon, that counsel drew attention to, is that of Kennedy J in Del Borrello v Friedman and Lurie (A firm) [2001] WASCA 348. Neither Wallwark J, nor Murray J, dealt with the question in their judgments. The comments by Kennedy J were obiter because he was satisfied that factually there was no suggestion of bad faith or dishonesty. Kennedy J's acceptance of Swinfen's case was not accompanied by any reasons or elaboration.
[173] Prior to Swinfen's case, Lord Kenyon had held that gross negligence on the part of a barrister attracted the advocate's immunity: Fell v Brown (1791) 1 Peake 131; 170 ER 104.
[174] However, the judgment in Del Borrello preceded D'Orta. In light of the clear statement that the rationale for advocate's immunity is the principle of finality of litigation, and the avoidance of re-litigation of a "skewed and limited kind", it seems to me that there is no basis to confine the availability of the advocate's immunity to only circumstances where the lawyers are found to have acted in good faith. Such a restriction would be inconsistent with immunities granted to witnesses and judges: D'Orta at [37]-[42].
[175] Accordingly, even if the proposed Amended Statement of Claim had been permitted to be filed, I would have found that the pleading of a breach of fiduciary duty was defeated by the pleading of advocate's immunity.
68In Goddard Elliott v Fritsch [2012] VSC 87 Bell J held that advocate's immunity applied even where the client did not have the mental capacity to instruct the lawyers. The lawyers were said to have procured the client to enter into a grossly unfair and inappropriate settlement of Family Court property proceedings. This was said to be a breach of their fiduciary duty to the client. Bell J held that the application of the immunity is determined by the substance of the wrong done and not by how it is characterised. His Honour concluded at [833] that the test in D'Orta resulted in the immunity applying even where the client lacked mental capacity provided that the negligence satisfied the test of occurring in the course of work leading to decisions about, or intimately connected with, the conduct of the case in court (at [832]).
69Hiley J in Pubco followed Goddard Elliott in holding that characterising conduct as breach of fiduciary duty did not take the matter outside the immunity.
70Even assuming particulars (h) and (i) were proved, the conduct involved was what led to the making of the settlement and the entry of the judgment. It falls within the immunity.