Toth v Stewart & Associates

Supreme Court of NSW|2021-03-22|Before: Hamill J

Judgment

By summons filed on 2 October 2020, Andrew Toth (the plaintiff) appeals and, where necessary, seeks to appeal against a decision made by Magistrate Longley in the Local Court on 3 September 2020. The Magistrate granted a notice of motion brought by his former legal representatives (the defendants) and made an order for the summary dismissal of a civil action commenced by Mr Toth against the defendants. The Magistrate decided that the cause of action pleaded by Mr Toth was untenable and destined to fail because it would inevitably be defeated by the defendants' reliance on the common law immunity of advocate's from suit.
The appeal is governed by the provisions of the Local Court Act 2007 (NSW), and in particular, by the provisions in ss 39 and 40 of that Act. Those provisions provide an avenue of appeal from the Local Court to the Supreme Court. If the order under appeal is an interlocutory order, leave to appeal is always required. [1] In the case of a final order, there is an appeal as of right if the ground of appeal is "only on a question of law". [2] Leave is required if the ground raises a question of mixed law and fact. The Local Court Act does not allow for appeals against decisions involving questions of fact alone.

Extension of time

The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that the appeal must be brought within 28 days of the date of the decision. The plaintiff filed his summons a few days out of time. The defendants consented to an extension of time to file the appeal and the extension will be granted.

Leave to appeal

The plaintiff represented himself before the Local Court and on the appeal to this Court. As far as I know, he is not legally trained and this is reflected in the documents he has drafted and filed. There is a lack of clarity as to the precise grounds of appeal with the result that at times it is difficult to tell if he raises a question of law or a question of mixed law and fact. In the latter case, leave to appeal would be required.
The parties took different positions as to whether the appeal was against an interlocutory order (where leave would be required) or a final order (where the appeal would be of right if the ground was on a question of law only). The manner in which the matter came before the Magistrate had the appearance of interlocutory proceedings; his Honour was dealing with a notice of motion seeking an order that the proceedings be dismissed before the final and full hearing of the matter. In spite of that appearance, it is well established that an order for summary dismissal is an order finally disposing of the proceedings. [3] The plaintiff (at times) seemed to assert that the appeal was against an interlocutory judgment or order, although it "constituted a final determination of the proceedings, albeit incorrectly". [4] The defendant submitted that the appeal was against a final order. [5] The latter view is correct and this is well supported by the authorities discussed by Adams J in Macatangay v NSW (No 2). [6]
Accordingly, the plaintiff has an appeal as of right on a question of law and requires leave if the appeal raises a question of mixed law and fact.
As I have said, the plaintiff was self-represented while the defendants were represented by senior and junior counsel. In written submissions, the defendant argued that the summons commencing the appeal proceedings failed to identify with sufficient clarity a question of law. It was contended that a number of the paragraphs in the summons appeared to raise questions of fact, while other parts of the summons appeared to be attempting to litigate questions of mixed law and fact. As will be seen, there was real substance in these submissions.
However, it is important to take into account the fact that the plaintiff is self-represented. While he did an admirable job of presenting his arguments and is quite capable of fending for himself in the preparation of submissions and in the formality of the court room, he remains at a disadvantage in drawing the occasionally fine and elusive distinction between questions of law, questions of fact and questions involving both law and fact. Further, there are some important questions at the heart of the plaintiff's appeal. These include the scope and breadth of an advocate's immunity from suit, the interaction between immunity and the court's power to summarily dismiss, and the obligation of the Court exercising that power to resolve each paragraph or allegation in the initiating process by reference to the immunity, rather than, as the plaintiff contends happened here, taking a global approach to the question. He also raises an allegation, as he expresses it, of "abuse of process" based on his assertion that Magistrate Longley failed to give effect to the decision made by Magistrate Atkinson when the notice of motion was before the Local Court on 18 May 2020.
In accordance with the provisions in s 40 of the Local Court Act, the defendants' position was that leave was required if the appeal was based around a question of mixed fact and law.
However one analyses the issues set out in the preceding paragraphs, the plaintiff should be granted leave (where necessary) to argue his appeal. While the defendants' arguments concerning the lack of clarity as to the grounds of appeal have force, the plaintiff has articulated with sufficient lucidity the issues he seeks to ventilate and the errors that he asserts were made by Magistrate Longley.
Because some of the issues agitated in the summons raise questions of procedural fairness, abuse of process and the application of an important common law immunity from suit, and also because the applicant is self-represented, I am satisfied that leave should be granted. In short, given the plaintiff's status as a self-represented litigant seeking to remedy what he sees as an injustice, this appeal should be determined on its merit rather than on a technical ground concerning whether it raises a question of law alone.
In fairness to those appearing for the defendants, that is more or less the approach taken on the hearing of the appeal. On that note, I should say that contrary to the plaintiff's more strident submissions, my review of the proceedings both before the Local Court and in the proceedings before this Court, indicates that those representing the defendants have conducted the case with restraint and fairness and in accordance with their ethical duties when appearing against a self-represented litigant.
Where necessary, leave to appeal will be granted.

Factual and procedural background to Magistrate Longley's decision to dismiss the statement of claim summarily

The statement of claim, amended statement of claim, defence and amended defence, along with two published judgments of the Court of Appeal and a Joint Chronology, provide an adequate summary of the factual and procedural background to the present appeal. There does not seem to be any dispute about these matters and I recount them to place the arguments of the parties in some kind of factual and chronological context.

The criminal proceedings

On 1 March 2015, the plaintiff was arrested at Town Hall railway station and on 30 May 2015, he was charged with filming the private parts of another person without consent and offensive behaviour. [7] He was issued with a Court Attendance Notice requiring him to appear at the Downing Centre Local Court on 22 July 2015. Sometime later, he retained the services of the first defendant, which is a firm of solicitors. The second defendant was a solicitor employed by the first defendant and he was allocated carriage of the plaintiff's case.
After some adjournments, a defended hearing was conducted in the Local Court on 15 March 2016. The second defendant appeared for the plaintiff. The plaintiff was found guilty of the offence under s 91L. I am not certain, and it does not matter, what happened to the offensive conduct charge.
The defendants' retainer came to an end after the conviction was recorded in the Local Court. Since then, the applicant has appeared for himself.
The plaintiff appealed against his conviction to the District Court. His appeal was dismissed by Judge Syme. He sought judicial review of that decision to the Court of Appeal on the ground, inter alia, that he was denied procedural fairness in the District Court appeal by virtue of the Judge's conduct. [8] The Court of Appeal (White JA, Leeming JA and Barrett AJA agreeing) was critical of the conduct of the District Court Judge and upheld a ground that the Judge's intervention in the plaintiff's submissions resulted in a denial of procedural fairness. It was also held that the District Court Judge applied the wrong test to the issue of mens rea in respect of the offence under s 91L. The Court quashed the decision of the District Court and remitted the matter to be determined by another judge. Those orders were made on 22 December 2017.
The matter was before the Court of Appeal again in late 2018. [9] The plaintiff sought judicial review of two decisions made by the District Court (Judge Sweeney) when the appeal from the Local Court was remitted. That application was unsuccessful.
As I understand the joint chronology, the plaintiff's appeal against his conviction was upheld and his conviction under s 91L was quashed by the District Court on 29 November 2019.

The civil proceedings against the plaintiff's solicitors

On 9 December 2019, the plaintiff commenced proceedings against the defendants by Statement of Claim filed in the Local Court. A defence was filed on 25 February 2020. On the same date, the defendant filed a notice of motion seeking an order that the plaintiff's proceedings be dismissed.
The notice of motion was listed before Magistrate Atkinson on 18 May 2020. Her Honour declined to grant the order sought in the notice of motion at that stage and adjourned the proceedings. Her Honour delivered an ex tempore which concluded as follows: "It also appears from the documentation provided by both parties that Mr Toth first retained the defendant's to get general advice about the charges that had been laid against him and Court procedure. He later retained them to act in the criminal proceedings. While some of the matters that Mr Toth has pleaded in his statement of claim appear to relate directly to how his solicitor ran the case in the courtroom - for example, his failure to challenge the matters set out in para 11 of the statement of claim - there is an argument that other matters have less of a functional connection between the work of his solicitor as an advocate and the determine of the case - for example, fee disclosures and the operation of the Uniform Legal Profession Law. lf the functional connection were not there, then the immunity would not operate. In my view, there is a real argument about some aspects of his case and for that reason it is not appropriate to summarily dismiss the whole of the proceedings, however, the statement of claim does not properly plead the contract claim and aspects of it are liable to be struck out, in my view, as they relate to behaviour which falls within the scope of advocates' immunity. What I am proposing as orders today - and I will hear from both of you before l make a decision - is I am proposing giving Mr Toth the opportunity to replead his statement of claim to remove those portions of it which fall directly within the scope of advocates' immunity and to properly plead his contract claim. I invite the parties to address me on that before I finalise the orders that I propose making today." [10]
There was then a discussion between the parties as to the form of the orders. [11] In the course of that discussion, her Honour said: "The cases explain what goes in and what goes out and over time they're clarifying what you can argue and what you can't, but I've found that there are some things that you can argue but you've got to make it clear, and particularly in relation to the contract claim, it's not clear at the moment. So I'm giving you 28 days to file and serve the amended statement of claim and, Ms Thompson, I'll give you a further 28 days to file and serve an amended defence." [12]
I have set these passages out because they form part of the plaintiff's argument that the decision of Magistrate Longley amounted to an "abuse of process".
Magistrate Atkinson directed the plaintiff to file an amended statement of claim within 28 days (being 15 June 2020) and the defendants were required to file an amended defence within a further 28 days.
An amended statement of claim was filed and dated 15 June 2020. A defence to the amended statement of claim was filed on 14 July 2020. At the same time, the defendants filed a further notice of motion seeking the following orders: "1. The proceedings commenced by the plaintiff against the first and second defendants by Amended Statement of Claim filed 16 June 2020 be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2015. 2. Alternatively, that the Amended Statement of Claim filed 16 June 2020 be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005. 3. The plaintiff to pay the defendant's costs." [13]
The matter came before Magistrate Longley on 3 September 2020. Written submissions had been filed, the parties made oral submissions and his Honour delivered an ex tempore judgment. [14] The following orders were made: "THE NOTICE OF MOTION IS GRANTED. THE AMENDED STATEMENT OF CLAIM FILED ON 15 JUNE 2020 IS DISMISSED AGAINST BOTH DEFENDANTS." [15]
His Honour ordered the plaintiff to pay the defendants' costs.

The grounds of appeal and submissions

While acknowledging Mr Toth's lack of legal qualifications, a difficulty arises from the form of the grounds of appeal. The defendant drew attention to the narrative form the grounds take and the lack of precision in identifying the plaintiff's complaints. It is true that the grounds meander over 6 pages, are quite discursive and difficult to articulate succinctly or grapple with coherently.
The grounds of appeal, as described in the summons, are annexed to these reasons and marked "A". A review of those grounds proves the defendants' point. Because of their nature and form, it is fruitless to deal with the grounds seriatim or to settle upon a cohesive and logical approach to addressing them.
The difficulty is exacerbated by the written submissions (in chief and in reply) which adopt what I would describe as a scatter gun approach to the appeal. However, some allowance should be given to the fact that the plaintiff represents himself, albeit that this is far from his first rodeo. [16] There are a number of complaints and I will attempt to distil the thrust of the plaintiff's arguments and deal with them in the most logical order I can. I will then address the issue at the heart of the appeal, which is whether the Magistrate erred in determining that the whole of the statement of claim was untenable or hopeless because it would inevitably be defeated by the defendants' reliance on the advocate's immunity.

Abuse of process

One of the arguments made by the plaintiff is that the proceedings before Magistrate Longley represented an abuse of process because (amongst other things) the issue litigated on the notice of motion had already been determined by Magistrate Atkinson on the earlier motion. The plaintiff contends that the decision made by Magistrate Longley failed to take into account, or give effect to, the decision made by Magistrate Atkinson. At its extreme, the submission suggested that Magistrate Atkinson had resolved the issue favourably to the plaintiff. Accordingly, it was submitted that the defendants' application for summary dismissal, and the disposition of the notice of motion by Magistrate Longley, constituted an abuse of the processes of the Court. That contention cannot be sustained on any of the bases upon which it was put.
I have already set out the history of the matter, the orders made, and the reasons given by the two Magistrates, which concerned different statements of claim. Magistrate Atkinson considered the statement of claim originally filed, while Magistrate Longley dealt with the amended statement of claim. The amended statement of claim was filed as a result of the orders and directions made by Magistrate Atkinson. There were substantial changes made to the documents, including the plaintiff inserting into the amended process a matter admitted by the defendants' in their defence to the original statement of claim. The defendants argued that the central flaw in the initiating process remained; that is, they contended that the suit would inevitably be defeated once the advocate's immunity was invoked. They argued this by bringing a new and separate notice of motion.
The transcript of proceedings before Magistrate Atkinson shows that her Honour was reluctant to summarily dismiss proceedings brought by an unrepresented litigant. Her Honour said things that suggested she had formed views about whether the whole of the statement of claim would be defeated by a defence based on advocate's immunity. Some of those views might be seen as favourable to the plaintiff and others considered favourable to the defendants. Magistrate Longley was not bound by those views, however they were expressed. To look at the matter from the other direction, it would have been wrong for his Honour to have abdicated his judicial responsibility by acting on Magistrate Atkinson's conclusion (or provisional view) that parts of the statement of claim were caught by the advocates' immunity. For instance, her Honour said at one stage: "…for example paragraph 11 you have dealt with matters that do fall within scope of the immunity." [17]
Rather than dealing with the notice of motion, either by dismissing the proceedings or striking out the pleading, Magistrate Atkinson provided the plaintiff with an opportunity to re-plead his case. Most of the observations made by Magistrate Atkinson were calculated to explain to the plaintiff, within the confines of the Magistrate acting with judicial impartiality, the problems that she saw, provisionally, with his statement of claim. While her Honour said things that suggested that she had formed a concluded view that parts of the plaintiff claim would be defeated by the defendant's reliance on the advocate's immunity and other parts would not, no final orders were made. Rather than striking out all or part of the plaintiff's statement of claim, her Honour adjourned the proceedings for further directions. The purpose of the adjournment was to allow the plaintiff to re-plead his case in an amended statement of claim, to remove those pleadings which obviously fell afoul of the immunity as well as re-plead the contract claim. As will be seen, this was not done. The amended statement of claim remained, in essence, a claim for damages based on the alleged neglect of the advocate in preparing for, and conducting, the defended criminal proceedings. The claim for breach of contract was amended substantially and a new cause of action, described as "LOSS OF FAIR HEARING" was added.
There were many changes made to the amended statement of claim and it was this document to which Magistrate Longley was required to direct his attention. His Honour was called upon to determine a notice of motion that sought orders in relation to the "amended statement of claim". Nothing said by Magistrate Atkinson in relation to a different notice of motion directed to the original statement of claim was binding on Magistrate Longley or determinative of the second notice of motion.
There was no abuse of process in the defendants pursuing a new notice of motion once it received the amended statement of claim. Nor was there any abuse of process in the manner in which Magistrate Longley dealt with the motion or in his Honour rejecting the plaintiff's submission that Magistrate Atkinson had determined the issue of whether the plaintiff's suit was defeated by the advocate's immunity.

Bias

In his written submissions, the plaintiff enumerated occasions when Magistrate Longley interrupted him in the course of oral submission. [18] He also complained that the Magistrate failed to deal with each and every one of his written and oral submissions. Reliance was placed on the Magistrate quoting the defendant's submission at length, and in doing so, reproducing errors in the citation of past authorities. The implication was that the Magistrate's decision was tainted by bias. At the hearing, the plaintiff submitted: "…I don't know the technical tos and fros of bias but all I would say is that given the fact that Magistrate Longley paid, in my submission, no attention to any of my submissions, an apprehension of bias comes in." … "But I mean, like if a reasonable person looked at that and he saw that, you know, he paid all the attention to one side and no attention to the other side, bias, you know, a reasonable person would come to that conclusion. But I'll rest that. I'm not pushing that. I will move on." [19]
I have disregarded the plaintiff's diffidence during the oral argument. I have not proceeded on an assumption that he abandoned his grounds or submissions that asserted that the Magistrate was disqualified on the basis of apprehended or actual bias. Those submissions were as clear as they could have been. For example, in his submissions in reply, the plaintiff submitted that "His Honour's readily ascertainable one-sidedness readily gives rise to an apprehension of bias" and that the Magistrates "completely ignoring the plaintiff's references and authorities … subverted the judicial process". [20]
Insofar as the submission that the Magistrate exhibited actual or apprehended bias is pressed, I reject the submission. This was not a case like Toth v Director of Public Prosecutions (NSW), [21] where Judge Syme's interruptions gave rise to a denial of procedural fairness and a finding of jurisdictional error. Even in that case, which was (with respect to her Honour) a pretty extreme example of judicial intervention, White JA "made no finding of apprehended bias". [22] On my review of the transcript of proceedings before Magistrate Longley - and noting that I was not invited to listen to the audio recordings of the proceedings to which reference was made in the written submissions - I am left with no doubt that the Magistrate exhibited appropriate judicial detachment and impartiality. There were interruptions but these did not give the appearance of partiality but rather, amounted to an attempt by the Magistrate to get to, and stick to, the true issues. Where Magistrate Longley referred to the defendant's submissions in his ex tempore reasons for judgment, he made it clear that he was doing so. His Honour was not required to re-invent the wheel, or to reformulate the language into his own, when he accepted (rightly or wrongly) the defendants' submissions and where those submissions succinctly summarised the relevant legal principles and the authorities. Where errors were reproduced, they related to matters of little or no moment.
The Magistrate was not required to articulate every one of the plaintiff's submissions to establish that they had been considered, let alone to demonstrate that he brought an impartial mind to bear upon the issues. As was explored in the oral argument, the submissions almost suggested that the fact that the Magistrate found against the plaintiff was capable of supporting the suggestion that he exhibited bias. The plaintiff's submissions in reply asserted "the alleged bias was not obvious until the Magistrate's summation and verdict". [23]

The Magistrate did not read the plaintiff's submissions

The Magistrate said he had read the plaintiff's written submissions. The plaintiff submitted "At face value this statement is either not correct, or the "reading" was so perfunctory that it had no real value". [24] The plaintiff went on to provide examples that purport to demonstrate that his submissions were not read by reference to errors in the ex tempore judgment, for example, by echoing the defendants incorrect use of the word "raised" rather than "available" in one of the quoted judgments. The plaintiff argued that the Magistrate's failure to adopt his expression "generalisation" (said to have been employed 12 times by the plaintiff) was further evidence that the Magistrate did not read, or simply ignored, his submissions. The plaintiff argued that this resulted in a "lack of procedural fairness" and a failure of jurisdiction ("Magistrate Longley was not enabled to make any rulings whatsoever on the matter"), [25] apprehended bias or, "at its worst this has led to a breakdown of the justice system". [26]
I reject the premise behind these submissions. I accept that the Magistrate quoted at length from the defendant's submissions and did not take the same approach to the plaintiff's written work. However, I do not accept that this leads to a conclusion that his Honour dissembled when he said he had read the submissions. The more likely conclusion is that he found it difficult to reproduce the commodious submissions in a coherent and compendious form in the course of delivering an ex tempore judgment in a busy Local Court. The other conclusion is that he rejected the plaintiff's submissions. The contention that he lied about reading the submissions, to put it in candid if unpalatable terms, is rejected.

Failure to engage with the terms of the relevant rules and authorities and failure to strike out the pleading (or part thereof) as an alternative to summary dismissal

The plaintiff complained (in written submissions) that his Honour "barely referred" to the relevant rules under which the plaintiff's motion was to be determined. [27] The argument went on to suggest that his Honour failed to apply settled principles for summary disposal and did not consider striking out the pleading as an alternative to dismissing the suit summarily. There is no substance to these complaints.
The Magistrate specifically referred to the rules under which the defendant sought relief. There was no obligation to set out the rules in terms or to embark on a lengthy analysis of the many authorities that have considered when it is appropriate to order summary dismissal. His Honour referred to the "very high bar" that the defendant had to overcome. [28] By reference to the defendant's submissions, he set out the principles including:

Summary disposal "deprives a party of the right to a contested hearing", which his Honour referred to as "an accepted fact". [29]
If there was "a real question to be tried, the matter is inappropriate for summary disposal". [30]
The test was whether the claim was "obviously untenable" or "manifestly groundless" or that there was no triable issue. [31]
The test of whether there was not triable issue is demanding. [32]
The power to order summary judgment should be "exercised with exceptional caution". [33]

No error of law is established in the Magistrate's explanation or understanding of the power he was called upon to exercise. The suggestion that the relevant parts of the rules "were barely referred to" is misconceived and not borne out by an examination of the record. The suggestion that the Magistrate, in effect, paid lip service to the "high bar" he said existed and "in practice … set the bar very low on the basis that the mere fact of litigation made everything immune from suit" is also wrong. It will be necessary to consider that aspect of the submission more closely because, in the end, that is at the core of the controversy between the parties.
The plaintiff also complained (adopting the paragraph numbers of the Summons) that the Magistrate: (29) Failed to ask the question, explicitly or impliedly, if the ASOC could be fixed. (30) Failed to attempt to find any merit, however slender, in the ASOC (this 'lack of attempt to find' being in contradistinction to a 'lack of finding'). [34]
These grounds are based on a misapprehension of the Magistrate's function and ignored the background to the litigation that included the plaintiff being afforded an opportunity to redraft the pleading to remove those aspects of the claim that were clearly caught by the immunity and the reality that this did not occur.
The transcript of 18 May 2020 shows that Magistrate Atkinson was circumspect about providing the plaintiff with legal advice. However, she provided an example of a part of the statement of claim that was clearly "within the scope of the immunity", namely paragraph 11. That paragraph pleaded: "11. Whitbread breached our agreement by showing negligence rather than competence by failing to challenge avenues that were open to him. He failed to challenge the intentionality of the act of film the private parts, all the more so that the evidence showed that it was an accident He failed to challenge the reasonable expectation clause, which was fairly open to him He failed to challenge the non-consent issue, given that a defence of implied consent was open to him He failed to challenge the knowledge of no consent clause, which also was open to him" [35]
While that paragraph was removed, the amended statement of claim included (by way of example): "PARTICULARS OF NEGLIGENCE NEGLIGENCE and LEGAL ADVICE 15. Mr Whitbread advised the plaintiff that he had only one defence, namely, his (the plaintiff's) "research" - that is, that he was undertaking research at the time he filmed the woman. This advice was negligent. Mr Whitbread knew, or ought to have known, that the said research was not the only defence available. Alternatively he was negligent in failing to determine this. 16. This research defence was highly unbelievable, with a correspondingly high change of failing. The negligence arises from the fact that Mr Whitbread did not inform the plaintiff of this. The research defence did in fact fail. … NEGLIGENCE and BREACH OF THE SOLICITORS RULES 24. The defendants were negligent by breaching the Australian Solicitors Conduct Rules (SR) Rule 4.1.1: A solicitor must act in the best interests of a client in any matter in which the solicitor represents the client. Negligence is indicated by Mr Whitbread's failure to act in the plaintiff's bests interests or, if unable or unwilling to do so, then failing to inform the plaintiff that he could not/would not do so. Failure to act in the plaintiff's best interests is indicated by… Failing to ascertain the full history of the incident (refer [17] above) Failing to determine the exact nature of the two contracts he entered into Failing to ascertain that the plaintiff understood what exactly Whitbread was willing or able to do by way of the contracts Failing to notify the plaintiff that his duties to the court may interfere with the terms of the second contract (namely, to be "hands on") Failing to adhere to the stated terms of both contracts Failing to provide any documentation whatsoever to the plaintiff Failing to obtain a copy of the evidence (the video footage) and/or failing to get the plaintiff's instructions in the matter Failing to notify the plaintiff that solicitor immunity applied Rule 4.1.2: A solicitor must be honest and courteous in all dealings in the course of legal practice. This rule was breached by Whitbread: He was not honest when he agreed that the plaintiff could "ask a lot of questions" Alternatively he was not honest by failing to notify the plaintiff that he would not allow "a lot of questions" He was not honest when he agreed to allow the plaintiff to be "hands-on" Alternatively he was not honest by failing to notify the plaintiff that he could not/would not allow the plaintiff to be "hands on" He was not courteous and on occasions berated the plaintiff for asking his questions and in general let his feelings of impatience and exasperation show Rule 4.1.3: A solicitor must deliver legal services competently This rule was breached by the defendants in the following ways: Mr Whitbread failed to determine the full scope of the matter (refer [17] above). It is self-evident that it is not competent to undertake a task without knowing the details. The defendants failed to issue any form of documentation regarding transactions and agreements Mr Whitbread failed to ascertain exactly what the plaintiff required him vis a vis the two contracts, thus failing to know what exactly he was agreeing to Whitbread failed to make clear to the plaintiff what exactly he, Whitbread, was prepared, or able, to provide in respect of the two contracts, thus failing to let the plaintiff know what exactly he, the plaintiff, was agreeing to In short, negligence is indicated by the fact that neither part really knew what, specifically, they agreed to. To proceed on that basis must be considered both an act of incompetence and an act of negligence. Rule 6.1 - A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking. Mr Whitbread's neglect (negligence) of this rule includes (but is not limited to): Failure to honour his undertaking to allow the plaintiff to "ask a lot of questions". The negligence kicks in because Whitbread failed to inform the plaintiff that he may not/would not/could not honour that undertaking Failure to honour his undertaking to allow the plaintiff "to be hands-on". The negligence kicks in because Whitbread failed to inform the plaintiff that he may not/would not/could not honour that undertaking. Further to this there was the failure to honour his (Whitbread's) undertaking to run the reasonable expectation defence, to which Whitbread specifically agreed. Whilst it is true that he is covered by solicitor immunity in this regard, the negligence kicks in because of his failure to warn the plaintiff that he may not be able or may not want to run that defence. Rule 7.1 - A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter… Mr Whitbread neglected this rule by failing to provide any advice, let alone clear and timely advice, on relevant legal issues. Relevant legal issues must be considered to be, at least, the five elements of the statute. While Mr Whitbread made up his mind, at the outset, that the plaintiff's research was the plaintiff's only defence - which he is allowed to do - his negligence kicks in because he failed to discuss the other elements, even when the plaintiff wanted to do so…his response being an exasperated, "Why don't you let us do our job?" Rule 8.1 - A solicitor must follow a client's lawful, proper and competent instructions. Mr Whitbread breached this rule by not following the plaintiff's instructions to run the reasonable expectation clause defence, which he agreed to run. This was a lawful, proper and competent instruction, especially as Mr Whitbread agreed to it. Although Mr Whitbread, as an officer of the court, had the discretion to change his mind, even at the last minute, and be protected by solicitor immunity, he was nevertheless negligent in failing to notify the plaintiff of this possibility Mr Whitbread also breached this rule by failing to follow instructions to discuss many and varied aspects of the case, responding instead with an exasperated, "Why don't you let us do our job?" or "Why do you want to ask that for?" Rule 12.1 - A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor… Mr Whitbread breached this rule by undertaking to act for the plaintiff when there was a conflict of interests between his contractual obligations and his duty to the court Apart from being negligent in failing to abide by this rule, he was negligent in failing to advise the plaintiff of the conflict of interests Rule 13.1 - A solicitor…must ensure completion of the legal services unless (13.1.1) the client has otherwise agreed. Stewart and Associates breached this rule. There was no attempt to finalise accounts. There was no attempt to take the matter to completion - which was the sentencing The plaintiff was not forewarned that Stewart and Associates would not be acting for him in the matter of the sentencing" [36]
It also included, as part of paragraph 24 (detailing alleged breaches of the Solicitor's Rules): "Rule 8.1 - A solicitor must follow a client's lawful, proper and competent instructions Mr Whitbread breached this rule by not following the plaintiff's instructions to run the reasonable expectation clause defence, which he agreed to run. This was a lawful proper and competent instruction, especially as Mr Whitbread agreed to it." [37]
Magistrate Longley did not appear to take into account the failure of the plaintiff to amend his defence to comply with Magistrate Atkinson's directions and suggestions. Rather, his Honour dealt with the amended statement of claim on its own terms and merit. His Honour was not required to attempt to "fix" the statement of claim or to eke out some part of the document that had "some merit, however slender". Rather, his Honour's task was to determine whether the whole claim would inevitably be defeated by the claim or defence based on the advocate's immunity. That is another way of asking the relevant question namely, whether the plaintiff's claim, in light of the assertion that the causes of action were subject to the immunity, was untenable or hopeless and destined to fail such there was no triable issue.
Once his Honour decided (again, rightly or wrongly) that the claim should be summarily dismissed, he was not required to consider the alternative prayer for relief in the form of striking out the pleading.

Failure to recognise or resolve the "complete disagreement concerning the factual circumstances" and whether Magistrate blurred the lines between an application for interlocutory relief with a determination upon a final hearing

In various ways in his grounds of appeal and submissions to this Court, the plaintiff contended that Magistrate Longley erred in conducting what he described as a "hybrid" hearing, which went beyond that which was appropriate for an interlocutory application for summary judgment. He says there were no settled facts and that it was inappropriate to make a determination on the issue of advocate's immunity when so much was in dispute between the parties. He raised a similar issue in the Local Court. He also submits that it was inappropriate to decide the advocates' immunity issue because the law in the area was unsettled. For this last proposition he relied on comments of the Court of Appeal in Young v Hones. [38] In making these arguments, the plaintiff asserted there are two kinds of hearings: summary dismissals and immunity from suit hearings. [39] Reliance was placed on the fact that there is no "immunity from suit category" in UCPR 13.4, the rule relating to summary dismissal. [40]
Both parties took me to passages in Young v Hones and the earlier decision in Donnellan v Woodland [41] to make their competing submissions on this issue. Neither of those cases involved the entry of summary judgment when a defence based on advocate's immunity was raised. However, both cases support the proposition that, where possible, it is appropriate to determine the question of advocate's immunity as a separate and antecedent issue. [42]
In Donnellan v Woodland, the case had not been dealt with in that way; the case had been dealt with to finality with the resolution of all issues. The Court of Appeal took the view that the better course would have been to deal with the defence based on the immunity rather than first determining the issue of negligence.
In Young v Hones, the issue had been considered separately but before the pleadings were closed. The Court was critical of that course and said the issue should not have been determined before the close of pleadings. However, the Court accepted the primary Judge had not fallen into error because the appellant had taken a forensic decision to consent to the process.
In Nikolaidis v Satouris, [43] a District Court had "struck out" a plaintiff's claim as an "abuse of process" on the grounds that the defendant was immune from suit. The Court of Appeal dismissed an appeal against that decision. [44]
In Golden v Koffel, [45] Cavanagh J summarily dismissed an action in professional negligence against solicitor who appeared for the plaintiff in proceedings before this Court against Racing New South Wales. The details are unimportant and its only relevance is that Cavanagh J exercised the power of summary dismissal under UCPR 13.4 on the basis that the claim was bound to fail as a result of the advocates immunity form suit.
These cases support the proposition that, contrary to the plaintiff's argument, there is no separate "immunity from suit" hearing that is mutually exclusive from a court's power to strike out or summarily dismiss a claim. The very basis of the exercise of the power may be that the claim is "bound to fail because any allegation that he makes against the defendants which could (assuming the facts in his favour for the purpose of this application) lead to any findings in his favour, would not lead to a judgment in his favour as the defendants are able to rely on the advocates' immunity defence." [46]
The passage from Young v Hones, upon which the plaintiff relied on to assert that the Magistrate ought not to have dealt with the application for summary judgment because the state of the law was unsettled, is not determinative of this case (if it is relevant at all). The passage came from Ward JA: "[163]: It is not disputed that the test generally applied on applications for summary disposal of part or all of proceedings is that set out in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-9, and that this requires that there be a very clear case before proceedings will be summarily dismissed (see also Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91). However, insofar as Ms Young contends that the matters raised have a "more compelling significance" in the context of a summary disposal on the pleadings (citing Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99), the lawyer respondents note that immunity from suit is not a matter of discretion or weight; it is a matter of law. [164]: The fact that the law may be in an unsettled state as to the reach of the immunity, in either of the respects contended by Ms Young, is not to the point. His Honour was not ruling on a summary judgment application. The fact that a separate question raises for determination a question of law that may be regarded as unsettled is not a basis for concluding that it should not be determined in advance of a hearing on the merits. If it is a question of law that may be answered irrespective of whatever factual findings might ultimately be made, and it is a question that it is considered would be appropriate to be determined separately and in advance of other issues in the proceedings pursuant to rule 28.2, what then follows is a final determination on that question of law." [47]
Put simply, the unsettled aspect of the law in Young v Hones was the question of whether a solicitor who acts in bad faith is protected by the immunity. That is not an issue here, notwithstanding the strong language in which the plaintiff put his allegations, in particular, against the second defendant. The law of the advocate's immunity, as it concerns the relevant circumstances of the present case, is settled.
The fact that it might be considered difficult, or nuanced or requiring close examination of the relevant law and pleadings, is not a bar on the entry of summary judgment. [48]

Whether the factual disputes between the parties were such that it was inappropriate to entertain the application for summary judgment.

The plaintiff made forceful submissions in the Local Court and in writing on this appeal, that the facts were in dispute and that it was wrong for the Magistrate to proceed summarily and deny the plaintiff the right to have those factual controversies resolved.
It is certainly true that there were factual issues raised on the pleadings. However, those disputes did not have a capacity to impact on the question of whether the plaintiff's claim would inevitably be defeated by reliance on the immunity. For example, the issue of negligence was hotly in dispute and this included whether the second defendant was ill-prepared for the hearing. There was also a dispute whether the fees paid exceeded $750 and whether the defendants failed to comply with statutory costs disclosure requirements. There were disputes as to whether the retainer agreement included a condition that the plaintiff be permitted "to ask a lot of questions", to be "hands on", to "pick the solicitor's brains" and, if so, whether that condition was breached. There was a dispute as to whether the second defendant was discourteous and "berated the plaintiff". These are examples of many such factual disputes disclosed in the particulars of negligence and breach of contract alleged in the summons. In that sense, the plaintiff was correct in submitting that there were factual disputes between the parties.
However, the factual disputes did not go to the issue of whether the whole of the suit was destined to fail in the face of the defence based on the advocate's immunity, even if he were successful in relation to the factual issues upon which the parties joined issue.
To take as an example a factual dispute that would be critical if the case proceeded to a final hearing, the plaintiff asserted that the defendants were negligent and breached their duty of care by (for example) (i) being ill-prepared for the hearing (or not prepared at all), (ii) not researching available defences and (iii) advising the plaintiff that there was only one tenable defence (that he committed the charged act as part of his research). The defendants deny the allegation of negligence. Whatever the outcome of that factual dispute, it is not determinative of whether the advocate's immunity attached to the impugned conduct. The same can be said of the alleged breach of contract constituted by the failure to allow the plaintiff to be a "hands on" client and to ask a lot of questions. Whatever the resolution of that factual dispute, it does not impact on whether the advocate's immunity defeated the claim based on that breach of contract.
The plaintiff was asked about this issue in the hearing before me. Apart from repeating that the "facts are in dispute", he was not able to identify any disputed facts that were relevant to a determination of whether reliance on the immunity ought to have been upheld: "PLAINTIFF: … I'm rather distressed at the incredibly numerous times and the incredible gravity of some of Mr Lloyd's submissions. I feel that it is almost edging into a, you know, unfair trial, but obviously I can't go that far. But, you know, I have the apprehension of that. But I do bring that up and I ask your Honour to pay particular attention to this and perhaps take that into consideration. HIS HONOUR: I will, but I don't understand it. You will have to particularise the complaint you are making. PLAINTIFF: It's very, very simple. Look, the facts are in dispute. HIS HONOUR: Which facts are in dispute? PLAINTIFF: Virtually all of them. Now if you look at the defendants' submission, defendants' defence, they use the word "dispute" 47 times. So everything is disputed. There is virtually nothing agreed and‑‑ HIS HONOUR: But in terms of what Magistrate Longley was called upon to decide, whichever view one takes as to whether it was an application of the summary dismissal rule or an application of the immunity from suit rule for the advocate or whether it was the first thing by reference to the second, what facts are in dispute in that regard? These were your lawyers. They were appearing for you in criminal proceedings. What were the factual disputes in the decision that Magistrate Longley had to make? I'm not talking here about the fact that you said they were negligent. You said that they turned up at Court virtually unprepared and those things were obviously in dispute. But those were not things that Magistrate Longley was making any determination about. He was determining whether or not the advocate's immunity from privilege applied to the particulars in your statement of claim. That is as I understand it. PLAINTIFF: Well I don't really follow that, your Honour. With regard to facts, because virtually nothing was agreed, the problem there is that the notice of motion or the attempt to prove immunity from suit is way premature. Because if you have a look a number of the other precedents that I put in there they are based on agreed facts or they're based on an ability to identify the negligence. But here, for example, when it comes to the cause of action, the breach of contract, one of the stipulations I make is that I entered into the contract on the basis that I be allowed to ask a lot of questions. Well that's basic to the contract and that was disputed. Right. Another term that I relied on in entering into the contract was that I be able to be hands on. That's basic to the contract and that was disputed. That's just two examples. I'm not sure I'm answering your questions, your Honour. HIS HONOUR: I think you are. PLAINTIFF: The other one is that ‑ and this is very important because it goes nowhere near immunity ‑ and that is I claim that the defendants breached the legal professional uniform law, I think it's called. Right. For example, they didn't do the necessary paper work and so on. They didn't issue receipts and so on and so forth. That was disputed by the other side. This is important because it's got no bearing on Courtroom determinations. There's multiple, you know ‑ I have got a mental block ‑ there's multiple, in the submissions somewhere, especially in my written submissions there's multiple examples of matters that they disputed and, you know, that remained in dispute. Could you repeat your question please because I'm not sure that I really - HIS HONOUR: I'm just trying to drill down on the submission that the facts are in dispute because in terms of the global dispute between you and the defendants, a lot was in dispute I can see that from the pleadings. But in terms of what the notice of motion sought from Magistrate Longley, he was obliged, whether he was applying the immunity rule or the summary dismissal rules to take your case at its highest. In other words, essentially without oversimplifying it to read your statement of claim and to determine whether there it was tenable and part of that was to determine whether it would be defeated by the claim of advocate's immunity. PLAINTIFF: In my written submissions there is a very long section on facts, lack of facts. Yeah, for example, there is on paragraph 106 of my written submission. For example the defendants made an allegation that there were two retainers. There were not. There was only one retainer. But the two retainers, splitting them up into two enable them to fall under the $750 threshold required by the Legal Profession Uniform Act. Anyway that's disputed. Now whether that has a bearing on Magistrate Longley well it would have a bearing because it is a factual dispute and it doesn't come under the advocate's immunity. Whether I raised it or not with Magistrate Longley I'm absolutely certain that I did because I spent about six pages on the disagreement of facts. It's almost certainly in there. The issue of receipts. They say they issued me receipts. I say I didn't get any receipts. That would have all come in ‑ that would have all been mentioned to Magistrate Longley. The lack of preparation, for example, that might be borderline there. HIS HONOUR: Borderline in terms of the application of the immunity for the advocate? PLAINTIFF: Yeah, yeah. Strictly speaking what happened is that we were going to have a practice session at 8.30 at Mr Stewart's office or Mr Whitbread's office. However, when we got there at 8.30 Mr Whitbread still hadn't prepared. So he used all that time that we were going to use for practice to do his preparation. I thought that was negligent. HIS HONOUR: Would you concede that that falls within the advocate's immunity? PLAINTIFF: Well I can't see the fact that we didn't have a practice session. I can't see how that could possibly affect Courtroom determinations. A big one is the obligation to attend the sentencing. This was disputed also. When I was convicted Mr Whitbread virtually just walked out on me. He didn't ask me what I wanted to do about the sentencing, do I have any instructions or anything like that. I was just left alone. There was no email or correspondence asking me what I wanted to do and so I was left there looking at the sentencing with no help from them when they were still under contract. Somewhere in their defence they admit they were under contract until 30 May which was the time of the sentencing. So there's numerous. For example, they say ‑ I suppose this is more of the same ‑ they gave me a detailed statement or there was a detailed statement. I asked them for it. I can't find it. I wasn't given any. HIS HONOUR: When you say a detailed statement you mean essentially your statement in relation to - PLAINTIFF: No, no, theirs. They had a detailed statement. HIS HONOUR: What sort of statement are you talking about? PLAINTIFF: Sort of like file. Look could we scrub that because that's sort of on its on there and I'm not 100% sure what that refers to. But basically the negligence is that we made a rather unusual contract and that is that I can ask a lot of questions and number 2 that I be hands on. Now these were breached. So there is a breach of contract there. But perhaps more to the point there is also a negligence element in it because Mr Whitbread failed to advise me that he may not allow me to ask a lot of questions. He failed to advise me that he may not be able to allow me to be hands on because he is an officer of the Court and therefore he has got to obey certain protocols. I walked into that contract thinking that it was all very simple, but he didn't advise me that it wasn't simple. He didn't advise me of that. My understanding is that with respect to these contracts between solicitors and clients the solicitors should make some effort, preferably in writing, to tell the client, well look this is what you want and this is what we can do for you and this is what we are prepared to do for you. If you're happy with that then we will go along. But there was nothing like that. At the end of the day I was left there twiddling my thumbs and the contract was not being complied with and negligently not being complied with and the matter that I just raised. There were numerous other factual disputes there. If you look at the defendants' defence you will notice the word "disputed" everywhere. The question is, did they all come within the realm of Magistrate Longley's capacity to come to a decision. There is no doubt that at least to some degree it did. If you just give me a half a minute where I find that section. I think in my written submission, can anyone see a heading Finding of Facts? I'm sure it's in there. HIS HONOUR: Yes, it's on the bottom of page 32 of the Appeal Book, but it really starts at paragraph 109 over the page, I think. It is probably easier if I give you paragraph numbers. PLAINTIFF: Unfortunately my written submission ‑ yeah, the written submission is in paragraphs. HIS HONOUR: If you go to paragraph 108 below that is a heading Findings of Fact. PLAINTIFF: Yeah, it's right at the bottom that's why I missed it. Okay. Yeah, well look one of the issues with an introductory hearing, which I know you're aware of, is the purpose is to find if there are triable issues or real questions as General Steele says. The purpose is not to resolve those questions, but just to pinpoint them and say yes there is a triable issue, therefore, there is no dismissal or no there is no triable issue and therefore there is a dismissal. The Bench Book states at 2‑6910 specifically that in a matter of summary disposal the Court examines the evidence not for the purpose of making findings of fact but only to determine whether a triable issue is disclosed. Now Magistrate Longley erred by making a number of findings of fact. For example ‑ I don't know that I need to read this out to you. It's right there. HIS HONOUR: Where is it, which paragraph? PLAINTIFF: Paragraph 112. The Magistrate Longley made a number of findings of fact. One is, the first one at 112, whether the defendants actually anticipated that the costs would fall below the $750 threshold. That was disputed. But so that is a question Magistrate Longley's mandate would have been to determine whether that's a real question or not. It's certainly a question, but whether it is a real question or not. That was Magistrate Longley's mandate. He didn't. He went ahead and resolved it in favour of the defendants. At paragraph 113, according to the defendants, everything the solicitors did without exception had a functional bearing on the judicial verdict. This was disputed by the plaintiff. Actually that's a typo there. It was not disputed by Magistrate Atkinson at all. But anyway sticking with Magistrate Longley. Magistrate Longley erred by making a finding of fact that all matters had a functional bearing on the Courtroom determination. We had a dispute. Did everything fall under immunity? Did it or did it not? That Magistrate Longley's mandate once again would be to say that is or is not a real question and however he made a finding of fact which puts him out of jurisdiction. That's just two examples of where findings of fact did come before Magistrate Longley and he actually did pay some attention to them and make a ruling on them. Hopefully I have answered that question. HIS HONOUR: Thank you, Mr Toth." [49]

Conclusion on whether it was appropriate for the Magistrate to determine the notice of motion

I am satisfied that: 1. The state of the law relevant to the issues arising from the notice of motion is settled. 2. The facts relevant to those issues were sufficiently clear and not in dispute. 3. It was appropriate for the Magistrate to hear and determine the notice of motion. 4. The Magistrate did not err in law by conducting a "hybrid" hearing whereby the advocate's immunity issue was conflated or confused with an "interlocutory proceeding" in which the defendant sought summary dismissal of the statement of claim.
In relation to the last matter (4), the issue on the notice of motion was whether the proceedings should be summarily dismissed because the statement of claim seeking damages would inevitably be defeated by the defendants' reliance on the advocates immunity over all of the impugned acts relied on in support of the claim for damages, negligence and breach of contract (and, if it is pressed, "loss of fair hearing"). Every application for summary dismissal has the hallmarks of an interlocutory hearing (because it is not a final hearing) but, if successful, the outcome is final. There is nothing remarkable or unusual in that. In the circumstances of this case, there is no dichotomy between a summary dismissal hearing and an "immunity from suit hearing".

Whether the pleaded claim was within the immunity?

This leads me, finally, to the real issue in this appeal, namely whether Magistrate Longley fell into error by deciding that the whole of the plaintiff's claim, and each of the causes of action pleaded in the amended statement of claim, was destined to fail on the grounds that the conduct upon which the claim was founded was caught or protected by advocate's immunity. While the defendant advanced other arguments in favour of summary dismissal, the only basis for the Magistrate's decision was the finding that the defendants were immune from suit.
The Magistrate appeared to proceed in the manner urged by Mr Lloyd SC at the Local Court hearing: "…this application really should proceed solely by looking at his pleading and taking what he's alleged at its highest and then I'll make submissions about whether those allegations, even taken at their highest, amount to a tenable cause of action." [50]
The plaintiff submitted orally that Magistrate Longley's failure to work through the statement of claim, paragraph by paragraph or allegation by allegation, to determine whether it fell within the immunity, before dismissing the claim in entirety, was in error and raised jurisdictional issues. I have dealt with, and rejected, this submission.
On the substantive issue of whether the immunity is a complete answer to the plaintiff's claim, the defendants submitted that "the way the pleading is framed attracts the immunity because it is all directed at the ultimate proposition of a bad outcome being the lawful exercise of a judicial power", [51] or to adopt the words of the High Court in Attwells v Jackson Lalic Lawyers Pty Limited ("Attwells"): [52] "…it is concerned only with work by the advocate that bears upon the judge's determination of the case". [53]
The defendants characterised the various allegations, grouped as they are under various breaches of duty, contractual obligations or the solicitors' conduct rules as all addressed to the same thing: the outcome of the plaintiff's criminal case.

Applicable Legal Principles

The immunity of advocates from suit is well established. Its rationale lies in the principle of finality and the public interest that controversies, once resolved in the course of litigation, "are not to be reopened except in a few narrowly defined circumstances". [54]
There has been some divergence of approach concerning the scope of the immunity in civil proceedings and, in particular, its applicability to settlement negotiations. Otherwise the scope and operation of the immunity is relatively free of controversy. In Rees v Sinclair, [55] McCarthy P said at [87]: "... the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing."
This approach has been endorsed in Australia and the United Kingdom. [56] In D'Orta-Ekenaike v Victoria Legal Aid, [57] Gleeson CJ, Gummow, Hayne and Heydon JJ confirmed the approach taken by Mason CJ in Giannarelli v Wraith [58] at [85]-[87]: "No sufficient reason is proffered for reconsidering the Court's decision, in Giannarelli, that an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court. Should the boundary of the operation of the immunity be redrawn? Again, we consider that no sufficient reason is proffered for doing so. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way.) As Mason CJ demonstrated in Giannarelli, 'it would be artificial in the extreme to draw the line at the courtroom door'. And no other geographical line can be drawn that would not encounter the same difficulties. The criterion adopted in Giannarelli accords with the purpose of the immunity. It describes the acts or omissions to which immunity attaches by reference to the conduct of the case. And it is the conduct of the case that generates the result which should not be impugned." (Footnotes omitted)
In D'Orta, it was held that the advice that led to the applicant entering a plea of guilty to criminal charges at a committal hearing was covered by the immunity. The High Court has been invited to revisit the formulation of the immunity described in Gianarelli and D'Orta more than once. It has declined that invitation on each occasion.
The issue of whether the immunity attaches to omissions or negligence in the form of a failure to prepare adequately (or at all), is an issue in the present case. In Keefe v Marks, [59] the majority (Gleeson CJ and Meagher JA) held that a failure to plead (and claim) interest and the failure to advert to that issue "in chambers" (as well as in court) was covered by the immunity. Gleeson CJ said at 720: "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 circumvented by drawing fine distinctions between the preparation and the conduct of the case, or between the opponent's failure to advert to the matter of interest while he was in his Chambers and his failure to do so while he was in Court."
In Nikolaidis v Satouris, [60] part of the claim was pleaded as a beach of statutory duty under the Fair Trading Act 1987 (NSW), in addition to a breach of contract and an action in negligence. The impugned conduct resulted in the applicant settling his claim. Barrett J (with whom Beazley P and Ward JA agreed) held that the immunity extended to each of the pleaded causes of action as well as to the advice provided to settle the case.
However, in Attwells v Jackson Lalic Lawyers Pty Limited, a majority of the High Court held (for example, at [43]-[46]) that negligent advice provided outside of the courtroom, that does not lead to the exercise of a judicial function, is not caught by the immunity. At [38] the majority stressed the purpose and source of the immunity: "It is apparent from the passages set out above from D'Orta that it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attracts the immunity. Because that is so, the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court."
Their Honours also held: "…where a final order has been made resolving litigation, a claim that 'but for the advocate's conduct, there would have been a different result' is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are 'consequences flowing from … a lawful result … lawfully reached.' The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully." [61] (Footnotes omitted)
The majority stated their conclusion at [45]: "It is sufficient to conclude that the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings."
In Kendirjian v Lepore, [62] the High Court allowed an appeal from the Court of Appeal which had distinguished the decision in Attwells. The High Court held that advocate's immunity from suit does not extend to advice not to compromise in a proceeding. Edelman J (with whom Kiefel CJ, Bell J, Gageler, Keane J and Nettle J agreed) rejected the "illusory distinction" contended for by the second respondent and decided: "In relation to work done out of court, there is no real distinction between work done which leads to a decision affecting the conduct of the case in court and work done affecting the way that case is to be conducted at a hearing." [63]

Application to the facts of this case

I am satisfied that, however the plaintiff frames his case against the defendants, it is bound to be defeated by the claim of advocate's immunity. For the most part, this is self-evident from the way the statement of claim is drafted. In other instances, the applicability of the immunity is less patently obvious because the plaintiff has formulated his cause of action in a particular way to avoid the implications of the immunity. That is not meant as a criticism; the plaintiff was on notice from the original defence, and his interactions with Magistrate Atkinson, that the immunity was a live issue. However, upon close consideration of the damages particularised in the amended statement of claim, it is clear that each cause of action, insofar as it sounds in damages, is based on impugned conduct in the preparation of and conduct of the criminal proceedings. Further, there is nothing in the statement of claim that suggests the defendants were engaged for any purpose other than to advise, prepare and appear in those proceedings. This is not to say that the fact there was litigation on foot means that any wrong asserted by the plaintiff is covered by the immunity.
One of the more clear cut cases of the applicability of the immunity arises from the newly formulated "third cause of action", which is stated as being "LOSS OF FAIR HEARING". Leaving aside the defendant's assertion that there is no such independent cause of action, the cause of action on its face is intimately connected to the conduct of criminal litigation. The damages sought make that clear: "DAMAGES (for third cause of action) GENERAL Loss of fair hearing $10,000 PUNITIVE The solicitor's reckless disregard for the rules and ethos pertaining to the representation of the client bears the Court's disapproval $10,000 TOTAL for third cause of action $20,000." [64]
I note in passing that this "third cause of action" is said to arise from the second defendant "waiving his right to solicitor immunity." [65] This is a matter the plaintiff appeared to seek to withdraw as the Magistrate delivered his judgment. [66] However, the Magistrate did not acknowledge that submission, merely saying "No, my turn". Nothing turns on this.
The cause of action based in negligence is also a clear cut example of an alleged civil wrong that is bound to be defeated by the defendants' immunity from suit. The conduct particularised in the amended statement of claim is overwhelmingly concerned with the preparation and conduct of the criminal case, including alleged failures to research the law and provide advice, identification of available defences, gathering evidence or failing to gather evidence, allowing the plaintiff to ask questions, and so on.
Some of the allegations under the cause of action pleaded in negligence may appear to be further removed from an intimate connection with the criminal proceedings; for example, the failure to "issue documentation regarding transactions and agreements" and purported failures to comply with the solicitors' conduct rules. However, again, the sole basis of the relationship was for the defendants to conduct the criminal proceedings and the particularisation of damages makes the intimate and functional connection to the litigation clear: "GENERAL DAMAGES 32. In respect of negligence, the plaintiff suffered the following loss • The plaintiff was deprived of a solicitor who was open minded and willing to discuss any and all matters of the case, even when, and especially when, he felt they had no validity. $5,000 • The plaintiff was deprived of a solicitor who was capable and/or willing to advise on the merits of the defence {"research") and the advisability of continuing with such a defence. $2,000 • The plaintiff was deprived of a solicitor who was capable and/or willing to discuss all possible defences, no matter how untenable they may (or may not) have been. The plaintiff was considerably stressed because he could not feel that all avenues were given adequate consideration $2,000 • The plaintiff was deprived of a solicitor who was willing to do the necessary preparation and who knew and understood the full gamut of the case, including matters that may not have had a direct bearing on the case, such as unlawful arrest, unlawful assault and unlawful imprisonment. The plaintiff was considerably stressed because he could not feel that all avenues were given adequate consideration $2,000 • The plaintiff was deprived of a solicitor who knew and understood the nature of the charge (that is, was it for personal gratification or for the gratification of another). $2,000 • The plaintiff was deprived of a solicitor who was willing to do even the basics, such as obtaining reasonable access to the evidence and/or obtaining the client's instructions in the matter. $2,000 • The plaintiff was deprived of a solicitor who met the basic threshold for solicitor conduct - that is, to obey the Solicitors Rules. $5,000 • Because of Whitbread's negligence, the plaintiff was deprived of benefit of knowing exactly what he could expect from the defendants, vis a vis the two contracts. The plaintiff thereby lost a very real chance to determine equitably whether the present solicitors were the correct solicitors for him, or whetherhe should move on. $5,000 AGGRAVATED DAMAGES 33. The plaintiff suffered the loss of representing himself, which was his intention at the time of approaching Stewart and Associates. The loss was incurred because Mr Whitbread misrepresented the way in which he would run the case. $2,000 34. Aggravated damages are indicated by the almost total and absolute disregard of the defendants' for the rights of the plaintiff. $2,000 PUNITIVE DAMAGES 35. Mr Whitbread's conduct shows a virtually total disregard for his duties as a solicitor and a contumelious disregard for the client's rights. The plaintiff asks the Court to show its disapproval for Mr Whitbread's lack of regard for his duties and lack of regard for his client. $2,000" [67]
The same applies to the action for breach of contract. Most of the alleged breaches are self-evidently connected to the criminal case and its preparation. For example, the breach of the contractual obligation to allow the plaintiff to ask a lot of questions, to be hands on, and the failure to follow instructions, arises from the preparation of the criminal case for the defended hearing. It is true that the allegations of breaching the Legal Profession Uniform Law and fees disclosure requirements are probably outside of that scope, but these do not form part of the damages claimed: "DAMAGES FOR THE SECOND CAUSE OF ACTION (contractual breaches) GENERAL DAMAGES 45. In respect of contractual considerations, the plaintiff suffered the following loss: • The plaintiff asked for, and paid for, a contract wherein he could "pick the solicitor's brains" (to put it into street vernacular, which best describes the matter). Mr Whitbread agreed to this and then reneged on this and the plaintiff suffered the corresponding loss of not getting the advice he asked for and paid for. $2,000 • The plaintiff asked for, and paid for, a contract wherein he could be participate actively in his own defence. Mr Whitbread agreed to this and reneged on this and the plaintiff suffered the corresponding loss of not getting what he contracted for. $5,000 • There was an implied contract that Mr Whitbread would act with due care and skill, abiding by the rules of conduct for solicitors. This implied contract was breached, and the plaintiff suffered the loss of competent legal help in running his case. $2,000 AGGRAVATED DAMAGES 46. The contractual breaches were made all the worse by Mr Whitbread's blatant and contumelious and unapologetic disregard for what he specifically promised and agreed to $5,000 PUNITIVE DAMAGES 47. The blatant and unapologetic way Mr Whitbread ignored his own promises and undertakings deserves the Court's disapproval $5,000 TOTAL for second cause of action $19,000" [68]
Leaving aside their apparent randomness (not to say caprice), and assuming favourably to the plaintiff that they could be established, each of these heads of damage arise from the alleged breaches in the conduct and preparation of the criminal proceedings. Each is caught by, and would be defeated by, the defendant's immunity from suit.

Conclusion and orders

For the foregoing reasons, I am satisfied that Magistrate Longley was correct to conclude that the amended statement of claim should be summarily dismissed. It was bound to be defeated by the defendants' reliance on the advocate's immunity. None of the alleged errors of law or failures of process (bias, denial of natural justice, abuse of process) ventilated on the hearing have been established.
There is no reason that costs should not follow the event and there will be a costs order in the defendants' favour.
Accordingly, I make the following orders: 1. Extend time to file a notice of appeal 2. Grant leave to appeal. 3. Dismiss the appeal. 4. The plaintiff is to pay the defendants' costs.

    Annexure A
    APPEAL GROUNDS
    BRIEF BACKGROUND
    1 On 14 July the defendants filed a NOM pursuant to UCPR rules 14.28 and 13.4 that the plaintiff's ASOC be dismissed or struck out, this being an application for an interlocutory order.
    2 In effect however the defendants wanted an altogether different kind of hearing and were pushing for a final judgement that the case was immune-from-suit.
    3 At the hearing, the plaintiff attempted to ask the court on which basis it would proceed - interlocutory or final - but HH told the plaintiff that a hearing was a hearing and brooked no further discussion on that matter.
    4 In the result the hearing proceeded on a "hybrid" level, sometimes paying lip service to an interlocutory approach, but in the main opting for immunity-from-suit as a separate and different hearing.
    5 The final verdict was that "immunity-from-suit is shown and . there Is no basis for the claim to proceed'.
    RE NATURE OF THE HEARING
    6 Leave to appeal to this Court is based, in part, on the contention that a final determination was made by HH, rather than the interlocutory determination called by the NOM and the rules 14.28 and 13.41
    7 Given the nature of the NOM, and given the distinction made in AB v NSW, leave to appeal to this Court is concerned, in part. with whether Magistrate Longley was empowered to make a decision to finally dispose of the parties' rights. as opposed to making an interlocutory decision.
    8 Leave to appeal to this Court is concerned, in part. with whether HH had the power to proceed with a separate and different hearing (immunity-from-suit) to that applied for in the NOM (strike cul/dismiss) without the consent of both parties.
    9 Given the nature of the NOM, leave to appeal to this Court is concerned, in part, with whether HH, having chosen to take the immunity-from-suit path, was empowered to preclude any investigation of the strengths and weaknesses of the plaintiff's claim.
    10 Alternatively stated, given the state of tension, or conflict, between the two kinds of hearings, leave to appeal is concerned, in part, with whether HH was empowered to use the broad shotgun approach (immunity-from-suit) or was it incumbent upon HH to examine and consider each and every allegation (as per. for example, Young v Hones, Collier v Lancer. and Constantinidis v Kehagiadis)?
    11 Given that the judgment was in terms of "immunity-from-suit" and given that the NOM was in terms the tenets of rules 14.28 and 13.4. leave to appeal is concerned, in part. with whether HH was empowered to make a judgment on terms other than the terms of 14.28 and 13.4 - those terms being, prejudice, embarrassment, delay. abuse of process, frivolousness, vexatiousness or lack of a reasonable cause of action?
    12 Leave to appeal to this Court is concerned, in part, with whether the principles of immunity are sufficiently certain in their scope to justify (in borderline cases) dismissal or strike out or immunity-from-suit (Leerdan v Noori 2008) or do they become ·'real questions" better suited to a proper hearing.
    13 Leave to appeal to this Court is concerned. in part. with the contention that .. even if HH had the power to make a final "immunity-from-suit" determination. and .. even if there were agreed facts. and .. even if he had the consent of the parties to do so, nevertheless he failed to identify where the defendants actually and clearly made out an immune-from-suit case.
    RE ABSENCE OF FACTS
    14 Further to the above. the plaintiff made ii clear in six pages of his admittedly lengthy submission and also from the bar table that the case was bereft of facts. Facts were either non-existent, fabricated or disputed. Virtually nothing was agreed on
    15 Leave to appeal to this Court is concerned, in part, with whether HH was empowered to proceed to an interlocutory determination given the almost total absence of facts. Or alternatively. whether he was empowered to proceed to a final determination (immunity from suit) given the almost total absence of facts.
    16 Given the absence of facts, leave to appeal to this Court is based, in part. On whether HH's interlocutory or final determination was better suited to a proper hearing which was based on evidence rather than allegations?
    17 Given the lack of facts, leave to appeal to this Court is concerned, in part. With whether it was possible to determine immunity if the facts were not known?
    18 Given the lack of facts, agreed or otherwise, leave to appeal to this Court is concerned, in part, with whether a decision on immunity-from-suit could have proceeded on anything but a hypothetical basis?
    19 Given the lack of facts, agreed or otherwise. leave to appeal to this Court is concerned, in part. with whether HH was in a position to determine the validity or otherwise of the three causes of action in the ASOC
    20 Given the nature of the hearing (an interlocutory application based on rules 14.28 and 13.4), leave to appeal to this Court is concerned, in part, with whether HH had the power to make a finding of fact. namely that immunity covered everything (immunity from suit). Alternatively stated, was HH empowered to make any kind of finding of fact whatsoever, given the interlocutory nature of the NOM application?
    IS THERE A REAL QUESTION TO BE TRIED?
    21 With reference the "hybrid" hearing referred to above, HH did pay some attention to General Steel and Webster v Lampard, both of which stress the importance of being absolutely certain that there is no "real question'' to be tried, before summarily dismissing the claim.
    22 Leave to appeal to this Court is concerned, in part, with HH's overlooking of the real question of how far, exactly. did immunity go? For example.
    • HH failed to consider whether immunity extended to compliance with the Legal Profession Uniform Law
    • HH failed to consider whether immunity extended to compliance with the Solicitors Rules, or at least to some of them
    • HH failed to consider whether immunity extended to a failure by the defendants to attend to the sentencing. while still under contract to represent the plaintiff?
    • And more
    ABUSE OF PROCESS
    23 Given that there were virtually no facts, agreed or otherwise, leave to appeal to this Court is concerned. in part, with Magistrate Langley's failure to rule the NOM as premature and therefore an abuse of process. This was brought clearly to HH's attention.
    24 Given that this same NOM has gone before the court on one previous occasion (March 2020) on the basis of virtually the same SOC, leave to appeal to this Court is concerned, in part. with Magistrate Longley's failure to rule the NOM as an abuse of process, given that it was an attempt to re-litigate the same action as before.This was brought clearly to HH's attention.
    25 Given that the NOM was an r 14.28/13.4 application, leave to appeal is concerned, in part, with HH's failure to rule the NOM an abuse of process, in that it was made with an ulterior purpose, namely, to get an immune-from-suit final hearing. The plaintiff attempted to bring this matter lo the attention of Magistrate Longley, but was not heard out
    FURTHER TO THE ABOVE
    26 HH failed to articulate or recite the plaintiff's third cause of action correctly and was thus not in a position to dismiss it.
    27 HH failed to consider what the defendants were retained for (that is, the nature of the retainer) and hence was unable to consider if the retainer was immune from suit
    28 HH erred by not allowing the plaintiff to put his arguments to the Court.
    29 HH failed to ask the question, explicitly or impliedly, if the ASOC could be fixed
    30 HH failed to attempt to find any merit, however slender, in the ASOC (this "lack of attempt to find" being in contradistinction to a "tack of finding")
    31 HH failed to show how all, or most, or even some, of the various allegations in the ASOC had an intimate or functional connection to Magistrate Viney's determinations
    32 HH failed to take into consideration Magistrate Atkinson's findings, which vindicated the plaintiff, at least to some degree, in terms of immunity.
    33 HH relied, in part, on a non-binding District Court decision
    34 HH erred in confusing the fact that the matter being in litigation, with immunity-from suit.
    37 HH failed to take into account that many of the negligence allegations did not relate to conduct in Court or to conduct affecting Court determinations. To note just a few instances of such conduct …
    • The defendant left preparations until. literally, the last minute (this meant we could not have the last consultation. as formerly agreed)
    • The defendant was impolite
    • The defendant failed to ask background questions that had no effect on court determination
    • The defendant failed to inform the plaintiff that he (the defendant) may not be able to comply with the contract terms
    • The defendant failed to obtain the plaintiff's instructions vis a vis the viewing and obtaining of the video footage
    • And more
    38 HH failed to take into account the many contractual obligations that had no bearing, much less functional bearing, on court determinations. To note just a few...
    • The defendants' failure to comply with the Legal Profession Uniform Law
    • The defendants' failure to turn up for the sentencing
    • The defendants' failure to determine the full and exact scope of the contract (before entering into the contract)
    • The defendants' failure to inform the plaintiff what the defendants were able, or were willing, to do vis a vis the contract
    • The defendants' failure to inform the plaintiff that the defendants may not be able to, or may not wish to, comply with all aspects of the contract
    • And more
    39 HH failed to allow the plaintiff to make his argumentation in two key respects …
    • The nature of the hearing
    • The meaning of one of the terms of the contract
    40 HH fell into error by taking his authority quotes directly from the defendants' submission thereby misquoting the authorities on a number of occasions and relying on these misquotes.
    41 In addition HH showed possible bias by relying exclusively on the authority quotes supplied by the defendants, while totally ignoring the authority quotes supplied by the plaintiff. (There may of course be good reason for this, but such reason is not readily apparent.)"
    IN CONCLUSION
    42 In view of the above, the plaintiff seeks leave to appeal the decision of Magistrate Longley.
    43 The plaintiff also seeks leave to appeal because, as the above has shown, the matter is complex, arguable and debatable and thus more suited for a hearing than for summary dismissal - all the more so as the relevant law is in a state of development.
    44 In the alternative, if, as the plaintiff contends, Magistrate Longley's orders were final rather than interlocutory, the plaintiff submits that leave to appeal is not required and the plaintiff asks that this summons document thereby be used as a "summons commencing an appeal" document.

Endnotes

Local Court Act 2007 (NSW), s 40(2).
Local Court Act 2007 (NSW), s 39(1).
See the helpful analysis by N Adams J in Macatangay v NSW (No 2) [2009] NSWCA 272.
Plaintiff's Written Submission ('PWS') at [11].
Defendants' Written Submissions ('DWS') at [17].
[2009] NSWCA 272 at [13].
Crimes Act 1900 (NSW), s 91L; Summary Offences Act 1988 (NSW), s 4(1).
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344.
Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253.
Tcpt, 18 May 2020, p 4.
Tcpt, 18 May 2020, p 4-10.
Tcpt 18 May 2020, p 7.
Exhibit B.
Tcpt, 3 September 2020, p 18-26.
Tcpt, 3 September 2020, p 25.
In the course of the criminal proceedings and the related appeals and applications for judicial review, it seems the plaintiff appeared self-represented three times in the District Court and twice in the Court Appeal. He appeared for himself in the civil proceedings before both Magistrates.
Tcpt, 18 May 2020, p 5.
For example, PWS at [20]-[36], [44].
Tcpt, 22 March 2021, p 28.
Plaintiff's Submissions in Reply (PRS) (MFI 1), p 5-6.
[2017] NSWCA 344.
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [89].
PRS, p 6.
PWS at [69].
PWS at [76].
PWS at [78].
PWS at [7], [37] and [38].
Tcpt, 3 September 2020, p 22.
Tcpt, 3 September 2020, p 22.
Tcpt, 3 September 2020, p 22.
Tcpt, 3 September 2020, p 22.
Tcpt, 3 September 2020, p 22.
Ibid.
Summons Commencing Appeal, 2 October 2020, p 5.
Statement of Claim, 9 December 2019, p 3.
Amended Statement of Claim, 15 June 2020, p 3, 5-8.
Amended Statement of Claim, 15 June 2020, p 7.
[2014] NSWCA 337.
PWS at [39].
PWS at [38]-[39].
[2012] NSWCA 433.
See, for example, Donnellan v Woodland [2012] NSWCA 433 at [259] (Basten JA) [276] (Barrett JA, Hoeben J and Sackville JJA agreeing) and Young v Hones [2014] NSWCA 337 at [164] (Ward JA).
[2014] NSWCA 448; (2014) 317 ALR 761.
This case will be referred to later in a different context.
[2021] NSWSC 739.
Golden v Koffel [2021] NSWSC 739, at [47].
Young v Hones [2014] NSWCA 337 at [163]-[164] (Ward JA).
See the discussion in Ritchie's Uniform Civil Procedure [13.1.65]; Commonwealth Bank of Australia v ZYX Learning Centres Ltd [2014] NSWSC 1676; (2014) 103 ACSR 476, at [71].
Tcpt, 3 September 2020, p 6-10.
Tcpt, 3 September 2020, p 3.
Tcpt, 22 March 21, p 21.
(2016) 259 CLR 1; [2016] HCA 16.
Attwells v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1; [2016] HCA 16 at [46].
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [45].
[1974] 1 NZLR 180.
In Australia see Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52.
(2005) 223 CLR 1; [2005] HCA 12
(1988) 165 CLR 543; [1988] HCA 52 at 560.
(1989) 16 NSWLR 713.
[2014] NSWCCA 448; (2014) 317 ALR 761.
Attwells v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1; [2016] HCA 16 at [35].
(2017) 259 CLR 275; [2017] HCA 13.
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 at [38].
Amended Statement of Claim, 15 June 2020, p 13.
Amended Statement of Claim, 15 June 2020 at [48].
Tcpt, 03 September 2020, p 24.
Amended Statement of Claim, 15 June 2020, at [32]-[35].
Amended Statement of Claim, 15 June 2020, at [45] - [47]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2021

Local Court Act 2007(NSW)ss 39, 40

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