Young v Hones

Judgment 1In February 2010, the plaintiff, Ms Young, commenced proceedings in this Court by the filing of a Statement of Claim. The proceedings were commenced only a few days before the expiry of the relevant limitation period for the causes of action then pleaded. 2The Statement of Claim was not served as soon as reasonably practicable, as required by the Uniform Civil Procedure Rules 2005 ("UCPR"), but was served about two weeks prior to the expiration of the time within which service could be validly effected. 3The subject matter of the proceedings in this Court are allegations of various causes of action arising out of, or relating to proceedings in the Land and Environment Court involving Ms Young and her neighbours, Mr and Mrs King. Those proceedings were finalised and orders made by the Land and Environment Court (McClellan CJ) on 19 February 2004: see Young v King [2004] NSWLEC 93. The present proceedings arise out of that settlement and the surrounding circumstances. 4On 17 May 2013, I delivered judgment in this matter dismissing a motion brought by the plaintiff for leave to file a Further Amended Statement of Claim. I also dismissed motions brought by each of the defendants seeking summary judgment. The reasons for those orders are to be found in Young v Hones [2013] NSWSC 580 ("the first judgment"). 5At the conclusion of the first judgment, orders were made which placed on Ms Young the onus of identifying a pleading upon which she intended to proceed, and also permitting the defendants, if so advised, to file notices of motion seeking, by means of a separate question under r 28.2 of the UCPR, to have the issue of advocate's immunity and witness immunity dealt with. 6This judgment deals with three applications, two of which were made by Notice of Motion. The first, by Ms Young, is for leave to file a Further Amended Statement of Claim. The second, made in the course of the hearing of that application, and without a Notice of Motion, was an application to adjourn the application to enable the filing of further evidence. That application was refused. I indicated that I would give reasons in due course. The reasons for that decision are contained within this judgment. 7The third issue, with which this judgment deals, is an application by each of the defendants for a determination that the claims of the plaintiff ought be dismissed, because of the favourable determination of the separate question dealing with advocate's immunity and witness immunity. 8Although familiarity with the first judgment is assumed, some further procedural background is necessary.

Land and Environment Court Proceedings 9It is convenient here to provide an overview of the Land and Environment Court proceedings. These proceedings are central to the proceedings in this Court. 10It is not intended to set out in complete detail those proceedings, because that is unnecessary. Much of what is now to be described comes from the judgment of Sheehan J in Young v King (No.4) [2012] NSWLEC 236. Further detail can be found there, and also in his Honour's earlier judgments: Young v King (No.2) [2009] NSWLEC 125, and Young v King (No.3) [2012] NSWLEC 42. 11Ms Young, who lives at 35 Calca Crescent, Forestville, is the next door neighbour of Mr and Mrs King, who live at No.37. Generally speaking, No.37 is down slope, and to the north, of No.35. The local council is the Warringah Council. 12Apparently, the lots in Calca Crescent were created by a 1958 subdivision which, on one view of the facts, put in place, in order to take account of a high water table, some specific drainage arrangements. These arrangements permitted drainage from No.35 into a trench on No.37 and onwards towards a council approved stormwater outlet near the corner of No.37. 13In mid-2001, Mr and Mrs King undertook some building work which Ms Young formed the view was being done without council approval. She was concerned about that work which involved excavation on Mr and Mrs King's side of their common boundary, taking their ground level to about 90cm below Ms Young's. Council apparently granted development consent for relevant works in February 2002. Condition 20 of that consent required suitable drainage to be installed behind the proposed retaining wall. 14Later in 2002, further works were undertaken by Mr and Mrs King. Ms Young made a series of complaints to Warringah Council and was dissatisfied with the response. 15On 14 April 2003, Ms Young commenced Class 4 proceedings in the Land and Environment Court, in which she sought 15 declarations, nine injunctions and other relief, including an award of damages. 16In those proceedings, her Points of Claim pleaded trespass and various illegalities affecting the works undertaken by Mr and Mrs King. There were three principal issues when the case came on for hearing before McClellan CJ on 16 February 2004. The first was the construction of a footing on the southern wall; the second the construction of a retaining wall on the southern boundary; and third, the underpinning of the footings of Mr and Mrs King's house. 17The matter commenced on 16 February 2004. Each party opened their case. The solicitor for Mr and Mrs King conceded that some of the works referred to in the Points of Claim were carried out without consent. The parties were by that stage engaged, through their experts, in discussion about what work might be needed to be done to rectify any environmental problems on the site occasioned by the works already undertaken. 18By the end of that first day, as McClellan CJ records in his judgment: Young v King [2004] NSWLEC 93, the experts had met and come to an agreement about the works which needed to be done. Although in large part the proceedings were resolved, there was no agreement between the parties in relation to costs. McClellan CJ noted that whilst it was unnecessary for him to explore all of the evidence prepared for the matter, it was necessary for him to receive and consider the evidence insofar as it related to the appropriate order for costs. His Honour then considered the evidence of the experts, Mr Springett for Mr and Mrs King, and Dr Perrens, the present fifth defendant, for Ms Young. His Honour accepted the evidence of Dr Perrens, accepted his analysis of the situation and his expressed conclusion that: "... the construction of the footing without adequate drainage would have the consequence in significant wet periods of locally raising the water table adjacent to the cottage." 19His Honour concluded, at [34] that: "34. Accordingly, I am satisfied that the works which the respondents have agreed to undertake were made necessary by reason of the construction of the retaining which, it has been considered, was constructed without consent. The retaining wall operates to interrupt the flow of subsurface water and, accordingly, unless adequately drained, the problems which Dr Perrens identified are likely to occur." 20His Honour concluded, on that basis that Ms Young had succeeded in the proceedings. 21The Chief Judge concluded the proceedings and his judgment by making formal orders which were: "1. I note the undertaking of the respondents provided in the document which I have initialled and dated and placed with the papers. 2. By consent of the parties, the proceedings are dismissed. 3. I order the respondents to pay the applicant's costs. 4. I reserve liberty to any party to apply generally." 22Commencing in 2008 and continuing through to the most recent decision of Sheehan J in 2012, Ms Young has been seeking relief from the Land and Environment Court to vacate or set aside the orders made by McClellan CJ. Ultimately, for the reasons which he expressed, Sheehan J concluded that the relief sought by Ms Young should not be granted: Young v King (No.4). 23His Honour, it is fair to say, did not seem to be impressed with the way in which Ms Young claimed that there was conduct in the original Land and Environment Court proceedings which entitled her to set aside the orders made by McClellan CJ. His Honour said, at [401]: "401. The early allegations of collusion/fraud/conspiracy were detailed in late November 2011 ... and they then 'flowered' and widened over the time since then, as recorded above ..., but the respondents have not been implicated directly. 402. All that is put against them, in the end, are imputations of knowledge and/or of motive, and the invitation to the Court to deduce that no alternative explanations or descriptions of their conduct, work. The case against them, in the end, is a series of opinions, purportedly expert or otherwise put to me from the bar table."

Procedural Facts 24After the delivery of the first judgment on 17 May 2013, the matter was listed for directions on 5 July 2013. 25On that day, counsel for Ms Young, Mr R Newell, indicated that his client wished to seek leave to file an Amended Statement of Claim "... within a week". He said: "... I came here today intending, and insofar as I don't receive instructions to the contrary, intending that the draft I am working on will stay clear of causes of action based on intention because in the circumstances of this case, they are overwhelmingly convoluted and ultimately, it's a line that has to be drawn in managing the proceedings. I am conscious of the advocate's immunity. I had in mind that the allegation of male fides would not be pressed because we arrived here today confident that the failure to advise the joinder of a party is an entrenched exception so far as the common law - I'll have to get further instructions on that. As I am presently minded, those causes of action based on intention would not be pursued. A cause of action based on negligence which centres on the remedy that's required and the necessary joinder of the council to achieve that remedy, would be the core of the case, as well as the failure to give technical advice about the actual drainage issue that should have been the subject of the case. That's the engineers." 26Counsel for each of the defendants, at that time indicated that they wished to have dealt with, as a separate question, the issue raised by their existing defences as to whether the claims of the plaintiff were completely answered by either advocate's immunity, in the case of the first, second and third defendants; or witness immunity in the case of the fourth and fifth defendants. 27Procedural directions were made to ensure that all motions were filed and fixed for hearing together with directions, as to the filing of evidence and submissions. The plaintiff was ordered to file any Notice of Motion seeking leave to amend the Statement of Claim by 19 July 2013. 28Notwithstanding that counsel for the plaintiff said on 5 July 2013, that an Amended Statement of Claim would be prepared within a week, and the effect of the Court's order that it be provided within two weeks, it was not until 1 August 2013, the solicitors for the plaintiff sent to the solicitors for the defendants, a proposed Amended Statement of Claim. 29At the directions hearing on 2 August 2013, a document, which was a form of the proposed Amended Statement of Claim consisting of 108 paragraphs, together with a document described as an annexure to that proposed Amended Statement of Claim, which consisted of 28 paragraphs and five pages, was provided to the Court as being the version of the Statement of Claim upon which the plaintiff then wished to rely. 30In light of the contents of that Statement of Claim, to which it will be necessary to return in due course, none of the defendants opposed the grant of leave to file it, although each defendant made it plain that, for the reasons which were covered in their motions and arguments about the immunities, the claim was one which was liable to be dismissed. 31In the course of the directions hearing on 2 August 2013, it became apparent that the plaintiff and the defendants did not take the same view of the effect of the pleading upon which the plaintiff then proposed to rely. 32Mr Kelly SC, senior counsel for the first and second defendants, said of the proposed Amended Statement of Claim this: "As we read that document, it has purged all of the other vices otherwise highlighted in your Honour's judgment of 17 May. And in view of the first and second defendants, we think that the pleading is one in relation to which your Honour could grant leave, and it is ripe to go forward for the strikeout and separate questions motions. ..." 33Mr Miller SC, senior counsel for the third defendant said of it: "As we read this document, it effectively alleges that it has removed all of the distracting issues of fraud, conspiracy and so on and so forth, and we are down to a pleading about alleged negligent conduct of the case and the settlement of the case." 34Mr Gray, counsel for the fourth and fifth defendants, agreed with that submission. 35Mr Newell, counsel for Ms Young, however seemed to have a different view. He said: "I have to say this, we have pleaded, I will call it, non-intentional causes of action. We have not conceded, and do not concede, that the conduct was bona fide, and we say that the test for advocate's immunity is that the conduct, if it was bona fide - so that we would've thought that one of the issues to be determined, that the matter can't be dismissed without that question being a live question, unless the Court views it as a constituent of the material test. ... ... ... It is my submission that so far as there is material before the Court, that it is the onus of the party proposing the evidence, and they need to demonstrate that it is bona fide. I'm not even sure we would need to put a reply whether it is bona fide, because we don't bear the onus. We need to avoid any lack of clarity, and we say we don't make that concession, we put it in issue and the failure to adduce evidence will be the subject of a Jones v Dunkel submissions in regard to that matter." 36By consent of the parties, I made the following order with respect to the, then, proposed Amended Statement of Claim: "I grant leave to the plaintiff to file and serve on or before 4pm Wednesday 7 August 2013, a further Amended Statement of Claim, together with an annexure in accordance with the document entitled 'Proposed Amended Statement of Claim of 108 paragraphs' which I have initialled, dated and placed with the papers." 37I dispensed with the requirement in that Amended Statement of Claim, for the plaintiff to note the amendments by underlining or striking out. 38After further debate about what was to occur, in due course I made the following orders which were not opposed by counsel for the plaintiff, with respect to the hearing and determination of separate questions: "1. I order that in addition to the hearing of the motions for summary dismissal on 23 August 2013, that the following separate questions be heard on that day: (a) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the first and second defendants; (b) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the third defendant; (c) Is the defence of witness immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the fourth and fifth defendants. 2. I order that those separate questions be heard and determined in advance of all other questions in the proceedings." 39Accordingly, there was then fixed for hearing before the Court on 23 August 2013, both the hearing of the separate questions and also the defendants' motions for summary dismissal. Further orders of a procedural kind were also made, which included that evidence could, if so desired, be filed by the plaintiff provided that it was filed by 9 August 2013. No such evidence was filed. 40On 6 August 2013, a further Amended Statement of Claim was served on the defendants. It can be taken that this version contained some minor typographical corrections to, and other administrative changes to, the version upon which the Court granted leave to the plaintiff, but otherwise the substance of it was the same as the draft considered by the Court, and in respect of which leave was granted on 2 August 2013. 41On 20 August 2013, the solicitors for Ms Young sent a letter in identical form to each of the defendants. It included the following: "Following the filing and service of the Amended Statement of Claim, a number of typographical errors and omissions have been discovered, and we have taken steps to make the necessary corrections. Following the filing of the Amended Statement of Claim, a number of matters have come to our attention as a result of which we foreshadow we will be making an application for leave to further amend the Statement of Claim. The amendments which will seeking to make are of narrow compass and, we respectfully submit, will not cause you or your clients any prejudice. As you are aware, counsel briefed by us, Mr Robert Newell, made plain on the last occasion that the matter was before the Court, that the plaintiff does not concede by her current pleadings that the conduct of the defendants, or any of them, was bona fide within the meaning of the learning in Swinfen v Lord Chelmsford. Further, he indicated that he was proceeding on the basis that it was for the defendants to show bona fides, and if not, for the matter to be the subject of a reply if the defence of advocate's immunity is raised. Plainly, he did not contemplate (and equally plainly your client knew that he did not contemplate) that the proceedings might be dismissed without the plaintiff having the opportunity to bring forward her case in response to the defence of advocate's immunity if, and insofar as it was incumbent upon the plaintiff to raise." (sic) 42The reference to Swinfen v Lord Chelmsford appears to be a reference to the judgment of Pollock CB, which is reported in (1860) 5 H&N 89; 157 ER 1436. 43The letter went on with the following: "On reflection, and in order to avoid delay or controversy over this issue, as a matter of abundant caution, we will seek leave to amend the Statement of Claim to include a plea of breach of fiduciary duty and/or male fides. ... We understand that the allegation of male fides will be based upon your client's breach of fiduciary duty in preferring the interests of the Council: (1) which sought (to your client's knowledge) to shift the burden of the surface water to our client; and (2) prepared a Construction Certificate which meretriciously turned the consent plans on their head while (again to your client's knowledge) concealing the matter from our client. Armed with that express knowledge, your client's only rational course (which was imperative to the plaintiff's interests) was to conduct the proceedings on the basis that the consent would be set aside [and] to make plain to the Council and the Kings as early as possible that that would occur. In fact, your client consciously elected to conduct and settle the proceedings on the foundation that that the consent would not, and could not (given the Council was never joined as a party) be set aside in the full knowledge that that would mean that our client would in practice be left with the onerous and prohibitively expensive problem of securing drainage arrangements for her land. The matter largely turns on the incontrovertible terms and effect of the writing called the Points of Claim, settled in conference by the second and third defendants on 23 May 2003. It also turns on the effect of the construction certificate plans as already pleaded, of which your client was aware but hoped to claim to be unaware. The Council thereby secured an unconscionable and irrational windfall at the expense of our client." 44As well, the letter foreshadowed that there would be amendments to deal with, and make a claim under, the Encroachment of Buildings Act 1922. 45The solicitors for the third defendant responded in the following terms: "(1) We refer to your client's proposed further Amended Statement of Claim which we received by email at 2.18 this afternoon. (2) Any interlocutory application, including an application to amend, is to be made by motion: UCPR 18.1. Any evidence on the application must be by way of affidavit: UCPR 31.2. Your client has not served any notice of motion or affidavit in support. ... (4) You will no doubt be familiar with the decision of the High Court of Australia in AON Risk Services Australia v Australian National University [2009] HCA 27. We would expect your client's affidavit to address the matters relevant to an amendment application as identified in that decision." There was no response to that letter. 46The proceedings were listed for hearing at 2pm on 23 August 2013. 47It appears that on that day, prior to the commencement of the hearing of those proceedings, the solicitors for the plaintiff, Ms Young, served two further versions of the proposed Amended Statement of Claim. One was served at about 12.30pm on the other parties, and the next one served at about 1.35pm. 48When the matter was called on for hearing on 23 August 2013, counsel for the plaintiff, Ms Young, sought leave to file in Court a Notice of Motion, and an affidavit of his instructing solicitor, Mr Muriniti, sworn 23 August 2013. In addition, a proposed Amended Statement of Claim was tendered. This consisted of a document of paragraphs numbered up to 108, but importantly including paragraphs 106A-106Q, which added allegations about a breach of fiduciary duty. An annexure to that proposed Amended Statement of Claim upon which the plaintiff sought to rely, was a document headed "Part 6 - Particulars of First, Second and Third Defendants Knowledge". 49Leave was granted to the plaintiff, without opposition from the other parties, to file the Notice of Motion in Court accompanied by the affidavit of Mr Muriniti. 50The parties were agreed that the hearing of the Notice of Motion seeking leave to amend the Statement of Claim, should precede the hearing of the issues raised by the separate questions, and the motions for summary judgment.

Proposed Amended Statement of Claim 51The substantive nature of the proposed amendments can be appreciated from the following paragraphs of Exhibit A, the proposed Amended Statement of Claim: "53A. The Plaintiff says that the Council in issuing the Consent with stamped drawing Architectural-Ground Floor Plan dated 31 October 2001 and the construction certificate with stamped drawing Architectural Ground Floor Plan dated 27 November 2002 was actuated by a purpose to grant a Consent which: ● Was premised on the proposition that the Kings had only changed the surface levels by 20 at the boundary. ● And on the basis that the balance of the cut face was due to build-up of fill; ● Obviated the Kings' obligation to drain and retain no.35 in consequence of their excavation; and ● Thereby in practice shifting the burden and expense of the drainage of the surface water draining from upstream from no. 37 to no. 35. ('The Council Purpose'). Particulars of The Council Purpose The Council Purpose is to be inferred from the matter pleaded at paragraphs 37 to 39 and 51 to 53. ... 102A Further or in the alternative: ● The First Defendant and the Second Defendant, by reason of and for the purposes of the discharge of the Retainer, and by reason of their status as a legal representatives/practitioners owed the Plaintiff a fiduciary duty. ● The Third Defendant by reason of and for the purposes of the discharge of the retainer and by reason of his status as a legal representative/practitioner owed the Plaintiff a fiduciary [duty]. ... 106A In breach of the fiduciary duties pleaded at paragraph 102A (a) and (b) respectively: (a) The First and Second Defendants in the conduct of the Proceedings had regard to and preferred the interests of the Council as informed by the Council Purpose rather than to the interests of the Plaintiff in having her land drained and retained. (b) The Third Defendant in the conduct by him of the Proceedings had regard to and preferred the interests of the Council as informed by the Council Purpose rather than to the interests of the Plaintiff. 106B The Plaintiff relies for the allegations of breaches of fiduciary duty pleaded in paragraph 106A on the facts matters and circumstances pleaded in paragraphs 106C to 106Q: ... 106M The Plaintiff says that the failures or breaches pleaded at paragraphs 80 (First and Second Defendants) and 81 (Third Defendant) are breaches of fiduciary duty (or are incidents of the breaches of fiduciary duty pleaded at 106A) in that as no reasonable practitioner could have in good faith failed to raise those matters against the Council the omissions are incidents of or occurred by reason of the conduct of the Proceedings by the First Second and Third Defendants in the interests of the Council." (sic) 52Following on from these allegations, the plaintiff then in summary pleads that the terms of the Settlement of the Land and Environment proceedings were to the knowledge of the first, second and third defendants such as to be unfavourable to her, and such as to have secured the Council Purpose. 53The document which became Exhibit A in these proceedings, namely the proposed Amended Statement of Claim, was the fifth proposed amendment to the plaintiff's Statement of Claim after the first judgment of 17 May 2013. 54The context in which the now proposed Amended Statement of Claim is to be considered, includes all of the context which I have set out earlier in the first judgment. It is unnecessary to repeat here all which is there set out. 55However, it is appropriate to point out that by the time that those proceedings were heard in April 2012, although they had been only commenced in 2010, there had been at least eight versions of a proposed Amended Statement of Claim propounded or served in the period up to the hearing of the motion. There have been five since. These various drafts of the Statement of Claim have at times included allegations, however pleaded, of bad faith, or the like, and at other times have abandoned those pleadings. The pleading which was being propounded and being considered by the Court in the first judgment, was not permitted to be filed because of its complexity, prolixity and verbosity, and the embarrassing nature of the many of the paragraphs pleaded. It included allegations of mala fides on the part of each of the defendants. 56The current proposed Amended Statement of Claim is one which has been drafted, again after a number of attempts, since the first judgment of 17 May 2013, which made plain the principles appropriate for proper pleading. 57It is also necessary to immediately observe that the proposed Amended Statement of Claim does not add to, or in any way, amend the Statement of Claim which was filed without objection on 6 August 2013, insofar as the claims are made against the fourth and fifth defendants. The only amendments concern the defendants who are sued in their capacity as lawyers, namely the first and second defendants, who were the solicitors for Ms Young, and the third defendant, who was counsel for Ms Young. Therefore, in further considering whether this Amended Statement of Claim ought be filed, it is unnecessary to consider the position of the fourth and fifth defendants. 58The principles to be applied when considering the adequacy of pleadings, were set out in the first judgment at [78]-[84]. There is no need to repeat them here. However, it is necessary to emphasise that proper pleading is of fundamental importance to the parties to the proceedings, and to the Court. 59The power to grant leave to the plaintiff to amend her Statement of Claim is an ample one: s 64(1) Civil Procedure Act 2005. The Court is required, when deciding whether to grant leave for the amendment of any document to "... act in accordance with the dictates of justice": s 58(1) Civil Procedure Act. 60In determining what, in a particular case, the dictates of justice require, the Court is obliged to have regard to the provisions of ss 56 and 57 of the Civil Procedure Act. There are other matters to which the Court may, if relevant, also have regard. 61Section 56 of the Civil Procedure Act provides that the overriding purpose of the Act, and the UCPR, in their application to civil proceedings, is to facilitate "... the just, quick and cheap resolution of the real issues in the proceedings". 62Section 57 of the Civil Procedure Act provides that in the management of any proceedings, the Court is to have regard to the just determination of the proceedings, as well as the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties. 63The discretionary factors provided by s 58(2) of the Civil Procedure Act to which a Court may have regard in considering whether to grant any amendment, include when considering the dictates of justice, the following: (i)the degree of difficulty or complexity to which the issues in the proceedings give rise; (ii)the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in the interlocutory activities; (iii)the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties; (iv)the degree to which the respective parties have fulfilled their duties under s 56(3); (v)...; (vi)the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. 64The Court is entitled to have regard to all circumstances which may be of relevance to a particular case. 65In order to consider whether to grant leave to permit the proposed Amended Statement of Claim, it is necessary to have regard to the terms of it. This is an important aspect of the grant of leave. 66The proposed Amended Statement of Claim includes claims for damages for breach of contract against the first defendant, damages in tort against the first, second and third defendants, equitable compensation against the first, second and third defendants, and damages for breach of the Fair Trading Act 1987, and the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) against the first, second and third defendants. The claim for equitable compensation is added by the amendment. 67After the first eight paragraphs which address, in conventional terms, the parties named to the proceedings and their involvement, from paragraphs 9 up to and including 54, the proposed Amended Statement of Claim sets out a range of factual matters involving interactions between the local council and Mr and Mrs King with respect to an application for development consent, and for a construction certificate with respect to Mr and Mrs King's property. Those paragraphs also include some pleaded facts dealing with the interaction between Ms Young and one or more officers of the local council. 68Paragraph 53A, which is set out at [51] introduces and defines the term "the Council Purpose". 69Paragraphs 37-39 deal with the submission of a plan on 24 January 2002, by Mr and Mrs King to the Council, which plan was not notified to the plaintiff by the Council at any time, notwithstanding that Ms Young had a "legitimate expectation of being notified". 70Paragraphs 51-53 of the pleading plead that the Construction Certificate plans lodged in November 2002 by Mr and Mrs King, included amongst other things, notations to the effect that there was artificial fill, or building waste, to a depth of between 400mm-600mm above natural ground level on Ms Young's property. 71Paragraph 52 pleads that the consequence of the notations on the Construction Certificate plans, and the contents of those plans, was that the consent: "... (as informed by the terms of the Construction Certificate) approved a 20cm retaining wall on the boundary wall of No.35 and No.37 and drainage for a 20cm retaining wall". It is pleaded that the consent in practice: "imposed on the plaintiff the obligation to retain the existing cut face and to drain (and arrange for drainage of) the surface water from her land." 72As counsel for Ms Young's submission makes plain, the central proposition for which he contends, was the consequence of the interaction between Mr and Mrs King and Warringah Council. Whereas the drainage works being undertaken by Mr and Mrs King, whose land was lower in height than that of Ms Young, ought to have resulted in an affirmation of Mr and Mrs King's obligation, at least according to Ms Young, to drain adequately any retaining wall between the two properties, in fact the works achieved the reverse which was to place on Ms Young the burden of organising, and giving effect to, the drainage of surface water on her land. 73The proposed Amended Statement of Claim adds reference to more detailed facts than previously. Insofar as a significant amendment is made, as between the existing Amended Statement of Claim of 6 August 2013, and the proposed pleading, there is an addition of a cause of action relating to fiduciary duty. It is as well to set out that pleading again: "102A. Further or in the alternative: The first and second defendant by reason of and for the purposes of the discharge of the Retainer, and by reason of their status as legal representatives/practitioners owed the plaintiff a fiduciary duty. The third defendant by reason of and for the purposes of the discharge of the retainer, and by reason of his status as a legal representative/practitioner owed the plaintiff a fiduciary [duty]." 74The pleading of breach of fiduciary duty is seemingly quite extensive. It is to be found in paragraphs 106A through to and including 106Q. The substance of the pleading can be found in the following paragraph, and those set out in [51] above. "106A In breach of the fiduciary duties pleaded at paragraph 102A(a) and (b) respectively: (a) the first and second defendants in the conduct of the proceedings had regard to and preferred the interests of the Council as informed by the Council Purpose rather than to the interests of the Plaintiff in having her land drained and retained; (b) the third defendant in the conduct by him of the proceedings had regard to and preferred the interests of the Council as informed by the Council Purpose rather than to the interests of the Plaintiff." 75Thereafter in the paragraphs which follow, extensive reference is made to the pleadings in the Land and Environment proceedings, and deficiencies which were said to exist in the Points of Claim which were provided, and the inadequacies of the settlement which was reached. 76In paragraph 106H, it is pleaded that the consequence of the content of the Points of Claim, having regard to the knowledge of the defendants in the absence of the Council as a party, was that the "... plaintiff could not in reliance upon the Points of Claim, obtain any relief at all at trial ...". 77Paragraph 106I pleads that "... in the premises the proceedings were conducted by the first, second and third defendants up to the Settlement, on the basis that no orders could be obtained the remedy the plaintiff's position". 78The pleading of absence of good faith is then made in paragraph 106Mwhich is set out above in [51]. 79Although not expressly stated to be part of the breach of fiduciary duty, paragraph 106M draws attention to representations made by the first, second and third defendants which are alleged to be false, and further, at paragraph 106P a failure to disclose to the plaintiff various factual features about the Council's Construction Certificate given to Mr and Mrs King and that the effect of the settlement was that the plaintiff took the "surface water burden". 80It is to be observed that in contrast to pleadings used in earlier versions of the Statement of Claim, including that considered by the first judgment, whilst there is a pleading that the first, second and third defendants were in breach of their fiduciary duty, there is no clear or direct allegation that any of the first, second and third defendants acted in bad faith. At its highest, the pleading in paragraph 106M, to which reference has been earlier made, pleads an absence of good faith. But this is being generous to the pleader. 81Paragraph 106M really raises an evidentiary submission. It seems to plead that the Court ought assume that the first, second and third defendants were competent and reasonable practitioners. The pleader then seems to want to plead that given that the omissions about which earlier complaint is made, which constitute breaches of the tortious duty of care, and also breaches of the fiduciary duty, were so poor, the Court ought infer that those omissions were indicative of the defendants conducting themselves not in the interests of the plaintiff, but in the interests of the Council. 82It can be readily accepted that such a submission may be made at the conclusion of a hearing, relevantly to invite a court to conclude, as a matter of fact, assuming a proper basis for the submissions, that an allegation that the defendants had acted in bad faith was supported. But the making of such a submission, assumes that there has been a proper pleading of bad faith, and that accordingly, the existence of bad faith is a relevant fact in issue, and secondly, that there are reasonable grounds in the evidence for making such a submission. 83Such a submission is not properly to be made in a pleading. Paragraph 106M is an evidentiary submission. 84It is necessary to observe, notwithstanding the oral submissions that were put by Counsel for Mrs Young in support of the application to amend the pleading, that there is no allegation in the pleading of mala fides or bad faith on the part of the first, second and third defendants. Given the nature of such allegation which is akin to fraud, it is essential that it be directly made in the pleadings: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279.

Submissions 85Counsel for Ms Young submitted that the pleading in fact amounts to a plea of mala fides. He said this: "That is the case that is outlined. I submit it is a coherent and concise case. It is easy to understand what occurred. It is essential, in my submissions, to the interests of the plaintiff in that - well, it's what happened. It does no good to pretend that the case is about something that didn't happen. It has the additional significance, and it is not put exclusively on this basis, that of course, there would be a greater exposure to the advocate's immunity if the plaintiff did not bring this case forward. The advocate's immunity, being a piece of string analysis, it is submitted, that this is not that kind of analysis. The advocate's immunity cannot protect advocates, it's my submission, others may make other submissions, from conduct which, as this conduct is alleged to be, is mala fides." 86Senior Counsel for the first and second defendants submitted with respect to paragraph 106M, that the content of the pleading in terms of the use of ordinary language, is not made out. 87Senior Counsel for the first and second defendants, referring to paragraph 106M put this: "That matter makes no sense either in terms of the use of ordinary language to convey whatever it is that is intended, but more importantly, this is the place in which the threshold allegation of mala fides that [counsel for Ms Young] embraces with great enthusiasm is made. This the mala fides: 'in that as no reasonable practitioner could have in good faith failed ...' He stops short of making an allegation of fraud, he stops short of making an allegation of intention to harm. He does not actually allege mala fides as such. He puts forward surplusage which is impossible to plead to, it is impossible to comprehend and it is completely unnecessary." 88Senior counsel went on to submit that whilst there were as an addition in this amendment of a discernable cause of action, namely a breach of fiduciary duty, the contents of paragraphs 106B through to 106P were embarrassing, alleged facts not material to any cause of action, and facts which ought be permitted to be asserted. 89Senior counsel for the first and second defendants further submitted that the amendment was, even allowing for a pleading of breach of fiduciary duty, in any event futile by reason of the existence of the advocate's immunity. 90Thirdly, senior counsel drew attention to the fact that the proposed Amended Statement of Claim continued a claim for wasted legal costs which was not lawfully permitted: see Attard v James Legal [2010] NSWCA 311. 91Counsel for the third defendant adopted the submissions of senior counsel for the first and second defendants with respect to the amendments which sought to add breaches of fiduciary duty, including paragraph 106M. 92Of the amendments, senior counsel for the third defendant made this submission: "36. This new theory of mala fides is tied - for the very first time in these proceedings - to an alleged fiduciary duty said to have been owed by the barrister to the plaintiff. 37. The proposed amendments are embarrassing. Despite the meaningless label of mala fides, what is in substance asserted is yet a new circumstantial case of fraud and collusion - but absent any facts, matters and circumstances being pleaded to illuminate how ... [the second and third defendants] ever came to an agreement to so run the entire proceedings to harm the plaintiff. 38. The proposed pleading is a cynical attempt to outflank the legal immunity by converting the possibility of knowledge - stemming from inferences to be drawn from three emails - into an assertion of actual knowledge of a decision by a third party to harm, elided through the mechanism of hindsight, into a constructed conclusion of serious professional misconduct. As to its form, it is embarrassing. As to its substance, it is scandalous. Nothing is substantively different to the proposed pleading that this Court refused leave to bring forward on 17 May 2013." 93In oral submissions in reply, counsel for the plaintiff apparently accepting the criticisms enunciated, sought to redraft paragraph 106M of the pleadings. 94He said: "My friends have indicated, ... made a submission that paragraph 106M is a pivotal [pleading] and somehow, it somehow was embarrassing and would compromise the whole pleading. That is absolutely untrue and untenable, and I submit that that underscores the merits of all of their submissions that they are prepared to make a submission like that. There is a semantic issue about 106M. What I propose is this. I am going to withdraw some of the words in it. I withdraw the words in the third line after the words 'in that', the word 'as' is withdrawn. In the fifth line, the first three words are 'against the Council', I put a full stop after that, and I withdraw the words after that. The purport of 106M is simply to say all of the matters, and if 106M wasn't there it wouldn't change anything. The breaches of fiduciary duty - sorry ... the extraordinary breaches of duty that we say go too far as a negligence basis, inform the overall course of conduct and its purpose, and if I take you to paragraph 45, your Honour, you will see that the number of flagrant breaches by the Council, and there was no objection to this, can be described as extraordinary. None of them were raised. It is pleaded here that not one of them is raised in the points of claim. It is like a text book on administrative law. It is an exam question. How many breaches of administrative law can you pack into one consent? And not one of them was picked up by the experts, the persons who held themselves out as experts in planning, in the points of claim. The only thing said in the points of claim, and it is not a correct proposition at all, is the consent should be set aside without the council being a party somehow. ..." 95Later, in the course of the oral submissions in reply by counsel for Ms Young, it became apparent that what was intended by the proposed amended pleading was that essentially the same factual allegations about breaches of the common law duty, the contract of retainer and the breach of fiduciary duty were made, but that the plaintiff sought to add, with respect to the breach of fiduciary duty, a purpose or object which she wished to plead, and which clothed what is otherwise a claim in negligence as one which amounted to a breach of fiduciary duty. 96Counsel for Ms Young said: "The breach of fiduciary duty, of course, is based on an intentional purpose in not putting the land back, for a purpose and not disturbing the consent because there was no intention to disturb the consent." 97He went on to say this: "But what is pleaded here is there was a breach of fiduciary duty showing the purpose for which the proceedings were conducted, and that that purpose informed the incorporation of the specific breaches of common law duty as breaches of fiduciary duty as incorporated, because they are so egregious and they just said that, combined with other matters, they support the conclusion that there was a particular objective and not an objective to conduct the proceedings in the interests of the plaintiff."

Discernment 98Clearly, pleadings must succinctly and directly address all of the elements of the causes of action upon which it is intended to rely. 99The plaintiff's intention, gleaned from her submissions, is, so far as the pleading of fiduciary duty is concerned, to allege that the conduct which was engaged in the course of the proceedings, including omissions reasonably to act, which are identical with the allegations in respect of the common law duty of care, and breach of retainer, were engaged in for a particular purpose, namely, to advance the interests of the Council and not to advance the interests of their client, Ms Young. 100Given that the first, second and third defendants were retained to act for the plaintiff, and funded by her or else entitled to be paid by her, for their work in the context of the Land and Environment proceedings, the assertion that they were not advancing the plaintiff's interests, but were advancing an interest inimicable to hers, namely that of the Council purpose, is an allegation which is akin to fraud and must be properly pleaded. 101The proposed pleading, even if one were to accept the amendments suggested in the submissions in reply by counsel for Ms Young, does not in a proper, coherent and direct manner plead such a cause of action. On the contrary, the pleading uses concepts and words which do not logically flow. 102I agree with the submissions of the counsel for the defendants that the amendment ought not be permitted because ultimately, its contents do not reveal a properly pleaded cause of action, and are embarrassing. 103But there is a further reason why the amendment ought not be permitted. 104The third defendant submits that the version of the Statement of Claim which it is now sought to advance, is in fact the twentieth version of a Statement of Claim which has been proposed by the plaintiff, according to a chronology of various proposed amendments, although a number of them appear to have occurred on the same day and been directed towards correcting minor errors or typographical mistakes. 105However, it is clear from the first judgment, and from the history recited in this judgment, that at least 12 or 13 previous iterations of the proposed pleading have been served and attempted to be relied upon. 106It appears, contrary to authority and principle, that the plaintiff is of the view that she is entitled to amend her pleading as and when she chooses. Even in this case, when a submission was made that the proposed Amended Statement of Claim was incomprehensible, counsel for the plaintiff in his submissions in reply, assumed the entitlement to replead paragraph 106M of the proposed Amended Statement of Claim orally. 107It can be readily acknowledged that a plaintiff should have a reasonable opportunity to formulate with precision a statement of claim upon which a matter should proceed to trial. It can also be readily acknowledged that it will be necessary from time to time, for amendments to be made to a pleaded statement of claim. Sometimes facts come to light which justify such amendments. At other times, after careful reflection, the pleader forms the opinion that a further cause of action ought be added. 108As the first judgment demonstrates, a number of the earlier amendments which were permitted to be made to the Statement of Claim originally filed, were made because it was asserted that facts had come to light which had not previously been known, and that those facts had necessitated amendments to the pleadings. Assurances were given to the Court that all of the facts were known at the time the amendment was permitted. 109The ultimate version of the pleading considered by the Court in the first judgment, was necessitated according to the plaintiff's submissions, as recorded in [47]-[49], by "a complete reframing of the conceptual foundation of how the plaintiff was misled and by what techniques". 110As the history recited in [25] and [35] above demonstrates, counsel for the plaintiff had made a forensic decision, having reflected upon the terms of the first judgment, to plead the plaintiff's case in a particular way. That careful decision-making process resulted in a removal from the pleading of any allegation of any cause of action other than "non-intentional causes of action". It was in light of that repleading that the defendants consented to the filing of that version of the Amended Statement of Claim on 2 August 2013. That forensic decision by counsel for the plaintiff was made in the full knowledge that the first, second and third defendants claimed that they were entitled to rely on advocate's immunity as a complete defence to the plaintiff's claim. 111The only evidence as to the reason for the plaintiff seeking to, yet again, amend her Statement of Claim, is to be found in the correspondence of 20 August 2013, which is set out in [41]-[43] above. That correspondence was simply annexed to an affidavit of the solicitor for the plaintiff which was relied upon in support of the Notice of Motion to amend. No other explanation was adduced in evidence. 112In submissions, Senior Counsel for the third defendant drew the Court's attention to the decision of the High Court of Australia in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 113French CJ, in finding that the discretion of the primary judge to permit an amendment to the Statement of Claim had miscarried, albeit at a much later stage of the hearing than the present application, said at [5]: "In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to AON could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publicly funded resource. In efficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's new statement of claim should not have been allowed." 114Further, in his judgment, the Chief Justice said at [35]: "It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event, the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while the interlocutory processes flowing from the new claims are put in place. AON had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice." 115The plurality judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in considering the application of r 21 of the Court Procedures Rules 2006 (ACT), which is in substantially similar terms to s 56 of the Civil Procedure Act, said this at [102]: "102. The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with a prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case, and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably, the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. 103. ... Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. .... Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the Court's attention, so that they may be weighed against the effects of any delay and the objectives of the rules." 116Clearly, the precise circumstances in AON were not present here, in particular, the proximity of the amendment application to a hearing date. However, the principles there enunciated are applicable here. 117In the course of submissions, having drawn attention to these principles, senior counsel for the third defendant submitted that there was a lack of any explanation proffered in evidence, by the plaintiff for the late, and again further, amendment. Senior counsel submitted that the letters which were annexed to the affidavit put before the Court suggested that a deliberate and careful reconsideration of the pleading had been undertaken in light of the first judgment of 17 May 2013, and that the current filed pleading, rather than the proposed amended pleading, could only be viewed as being a result of conscious decisions being made as to the manner of repleading. 118Accordingly, as well as submitting that there was a lack of any explanation, senior counsel for the third defendant challenged the adequacy of such explanation as was contained in correspondence. 119When the effect of this submission, which was repeated orally, was raised by the Court with counsel for the plaintiff for his response, he said: "That is a matter, I believe I provided an explanation. There isn't a full explanation on affidavit. If it is a matter that, on which the matter would turn, I am, I would seek an adjournment to provide that affidavit. We can explain, we don't want to incur the costs, but what we have been put through in trying to understand this and the information we have been given by people has been extremely prejudicial. I am more than happy to put on an affidavit explaining the difficulties that the plaintiff has had in coming to grips with this matter, and that includes me." 120Counsel for the plaintiff sought further to justify the absence of an explanation by submitting that "... the AON consideration is a sliding scale consideration". 121When asked what he meant, he said: "I mean the closer you are to a trial, or if you are in trial, the more important it is to provide an explanation. If what is in issue here is an amendment two weeks after an amendment consented to, then the question of delay does not loom large. We are nowhere near a trial, and we have not seen a defence to this pleading, there is no prejudice. The AON considerations have to bear on the AON sliding scale, your Honour. We are a long way from trial, although I submit that the matter could be ready very quickly given the way the issues are proposed to be defined in this pleading." 122Senior counsel was asked whether the consequence of that submission was that he had come to the motion conscious of what AON had said, and had determined there was no need to provide an explanation. Counsel accepted that that was so, and went on to say: "We formed the view perhaps, that the explanation was implicit in the circumstances in which the amendment arose. But we are more than, we would welcome the opportunity to put on an affidavit concerning the matter." 123The application for an adjournment to enable further evidence to be adduced was opposed. At the conclusion of the submissions on the application, I refused the application, and indicated that I would give reasons as part of this judgment. 124I refused the application because I formed the view that the plaintiff had made a forensic decision to proceed with the application for an amendment without providing any explanation in addition to that which emerged from the letters annexed to the plaintiff's solicitor's affidavit. I was satisfied that the plaintiff knew of the relevant legal principles and decided that it would not go to the cost and expense of putting on an explanation to support its application. Indeed, it was not until I specifically drew counsel for the plaintiff's attention to the absence of an explanation that an adjournment was sought. 125In those circumstances, it seemed to me that the interests of justice did not permit, particularly in light of the opposition of the defendants which was based on further costs and delay creating prejudice for them, a further adjournment to put on an explanation which counsel for the plaintiff had determined would not be part of the evidence which the plaintiff adduced.

Should the Amendment of the Statement of Claim be Permitted? 126I am not satisfied that it is in the interests of justice, to permit the further amendment of the Amended Statement of Claim which was filed on 2 August 2013, assuming that a proper pleading could be drawn up. 127The plaintiff has had proceedings on foot for over three years. The plaintiff has had a very large number of attempts to produce a further pleading which sets out the substance of the claim which she wishes to advance. 128The first judgment pointed out the deficiencies in the Statement of Claim which was then proposed. Over two months later, having had the opportunity of considering what was said in that judgment, the plaintiff made a deliberate decision to proceed on a Statement of Claim which restricted her claim to "non-intentional causes of action". 129That was a careful and deliberate decision made for good forensic purposes. But just a few weeks later, the plaintiff apparently has reconsidered the matter, and wishes to change her mind yet again. The time has now come when the defendants are entitled to be heard to say "enough is enough". In the words of the plurality judgment in AON at [102], the plaintiff has had a sufficient opportunity to plead her case and it is too late for a further amendment. 130As well, as is apparent from my conclusion at [84]-[85], the proposed Amended Statement of Claim is not in a form suitable to go forward. 131Even if the plaintiff was capable of producing a pleading, and she has not, I am not persuaded in the exercise of my discretion that it is in the interests of justice to permit any further amendment.

Immunity 132It is now necessary to consider the separate questions of immunity, based upon an advocate's immunity or the immunity of a witness, having regard to the pleading which was filed on 6 August 2013. 133Although further defences have not yet been filed to the Further Amended Statement of Claim filed on 2 August 2013, the existing defences of each of the defendants raise these immunities. In this respect, no further defences are necessary. 134The defence of the first and second defendants filed on 14 April 2011 pleads at paragraph 90: "Further, and in the alternative, the first and second defendants plead by way of complete defence to the claim, advocate's immunity." 135The amended defence of the third defendant filed on 16 June 2011, pleads at paragraph 75: "Further, and in the alternative, and in answer to the whole of the ASOC, the third defendant says that he did not owe the plaintiff an actionable duty in respect of the conduct pleaded by virtue of the advocate's immunity, and on the grounds that the conduct was done by him as a barrister in court, or was work done out of court that was intimately associated with the conduct of a case in court." 136The defence of the fourth and fifth defendants which was filed on 4 May 2011, pleads that their involvement was in the capacity of providing and giving expert evidence, and that their conduct: "... in relation to the matters alleged in ... the ASOC was protected by the immunity enjoyed by experts in such circumstances." 137The plaintiff accepted that these pleadings adequately raised the issue of witness immunity. 138There are two immunities which are the subject of the separate questions. The first is the issue of advocate's immunity, which affects the first, second and third defendants. It is to be recalled that the first and second defendants were the solicitors retained to act for Ms Young, and the third defendant was the counsel briefed by the first and second defendants on behalf of Ms Young, to present her case in the Land and Environment Court. 139The second immunity which is in issue, is that of a witness. The fourth and fifth defendants' involvement in the proceedings arose out of the fact that Dr Perrens, the fifth defendant, was an expert witness in the proceedings. The fourth defendant, Hughes Trueman Pty Ltd, is said to be vicariously liable for the negligence of Dr Perrens. 140The first question to be determined separately, is whether the defence of advocate's immunity is a complete answer to any, and if so which part or parts, of the plaintiff's claim against the first and second defendants. 141The second question is in identical form with the exception that it applies to the third defendant. 142Each of the defendants contends that the answer should be in the affirmative. The plaintiff submits that the answer should be in the negative. 143As is apparent from earlier in this judgment, the claim by the plaintiff against the solicitors and counsel is a claim in tort, for breach of contract, and for damages pursuant to s 68 of the Fair Trading Act and s 82 of the Trade Practices Act. 144Since none of the first, second and third defendants are corporations, but practice, and are sued as individuals, the Trade Practices Act has no application. That cause of action can be put to one side. 145In substance, the plaintiff's claim is against her former solicitors and counsel for damages, including wasted costs arising out of the conduct of the proceedings in the Land and Environment Court in which Ms Young, on the advice of her solicitors and counsel commenced proceedings, and prosecuted the proceedings through to a conclusion which was achieved by a settlement. As well, because the parties could not agree on the issue of costs of the proceedings, including of the settlement, McClellan CJ gave judgment with respect to that aspect of the claim. That judgment determined some of the substantive facts which were in issue. 146Without again descending into the detail which is set out earlier in this judgment, it is not unfair to describe the nature of these proceedings as involving allegations of breach of duty on the part of solicitors and counsel in failing to give appropriate advice about the proceedings, failing to join all of the appropriate parties to the proceedings, failing to seek appropriate orders in the proceedings and, finally, settling the proceedings on terms which were inappropriate, and disadvantageous to the plaintiff. 147There are of course, within those broad descriptions, a variety of failed issues where allegations are made of inappropriate conduct on the one part, or alternatively, failures or omissions on the other. 148Although for some, the question of the existence and rationale for advocate's immunity is controversial, this Court is bound by a number of decisions of the High Court of Australia and the Court of Appeal, which have authoritatively determined that advocate's immunity exists and, where applicable, is a complete defence, to a claim of the kind here pleaded. 149In Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, the High Court of Australia considered the question of whether a barrister was immune from suit. It held that, at common law, a barrister could not be sued by their client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court. 150One of the two bases for that immunity was said to be the principle of finality of litigation. At 574, Wilson J said: "The common law principle of immunity from civil action for in court negligence thus derives support from the fundamental principle favouring finality of litigation. This principle has been found necessary to conserve public confidence in the administration of justice." 151Dawson J expressed himself somewhat more forcefully. At 594, he said: "But there are weightier considerations than these. The first, to my mind, is that the availability of an action in negligence for the conduct of a case in court would subject the decision of the Court to collateral attack by a client who sought to blame his barrister for his loss of the case. Not only would this mean re-litigation of issues already decided, but the re-litigation would be before a different tribunal, after a lapse of time, upon evidence which would not necessarily be the same. This would be bad enough after a decision in a civil case, but would be intolerable after a criminal trial. The verdict of the jury would be impugned in a court of law and yet, assuming all avenues of appeal to have been exhausted, it would remain with all its consequences. True it is that the way in which a trial has been conducted by a practitioner appearing for an accused, may afford a ground of appeal if it results in a miscarriage of justice ... but to contemplate an attack in collateral proceedings which would be incapable of affecting the verdict, raises quite different considerations. Nothing could be more calculated to destroy confidence in the processes of the courts or be more inimical to the policy that there be an end to litigation. If the decision of a court is wrong, the appeal process is the means by which it should be corrected. To allow the courts to be used to undermine its authority in other proceedings is clearly not in the public interest." 152The High Court returned to the question of advocate's immunity in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1. 153In issue was whether the High Court should reconsider its decision in Giannarelli. In D'Orta, Gleeson CJ, Gummow, Hayne and Heydon JJ said at [15]: "... the decision in Giannarelli must be understood having principal regard to two matters: (a) the place of the judicial system as a part of the governmental structure; and (b) the place that an immunity from suit has in a series of rules, all of which are designed to achieve finality in the quelling of disputes by the exercise of judicial power." 154At [34], their Honours said: "34. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry, and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in the earlier proceeding. 35. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called 'fresh evidence rule') are all rules based on the need for finality. ..." (footnotes omitted) 155Their Honours went on to say at [45]: "Rather, the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the re-opening of controversies would exist, one of an inefficient and anomalous kind." 156Their Honours did not favour reconsidering the decision in Giannarelli, nor were they satisfied that there was any sufficient reason for redefining the boundary of the operation of the immunity. Their Honours concluded at [91]: "Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision ... which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account." 157The Court of Appeal most recently considered the question of advocate's immunity in Donnellan v Woodland [2012] NSWCA 433. The issue in question in Donnellan, was advice proffered by a solicitor to his client with respect to whether an application for a drainage easement pursuant to s 88K of the Conveyancing Act 1919 was likely to be successful. 158At [172], Beasley P, with whom, on this issue, Basten, Barrett, Hoeben JJA and Sackville AJA agreed, said: "The plurality's' reasons in D'Orta-Ekenaike make it clear that the immunity is not confined to negligence on the part of a legal practitioner, whether barrister or solicitor, who acts in a case as an advocate. It extends to a solicitor who acts in the litigation qua solicitor, provided that, on the facts, the negligent conduct falls within the reach of the immunity, namely, work done out of court that leads to a decision affecting the conduct of the case in court." 159Another way in which the relevance of the impugned conduct of the litigation in question has been described, is that by Giles JA in Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 where, at [14], his Honour said: "On the law as expounded in the High Court, the immunity extends to the work of a solicitor, not acting as an advocate, done out of court which is intimately connected with work in court, or on another statement of the test, the work which leads to a decision affecting the conduct of the case in court. Its central justification is the finality principle, that a controversy once quelled should not be re-litigated in demonstrating that the lawyer's negligence in the conduct of the litigation caused damage to the client. Re-litigation in which it is asserted that, had the case been prepared and presented properly, a different result would have been reached, is regarded as offending the finality principle." 160Further, at [26], his Honour said: "The rationale enunciated in D'Orta-Ekenaike v Victoria Legal Aid could bring a wide application of the immunity. Whether the work is negligently performed through act or through omission, and whether or not it leads to an overt decision, there cannot be re-litigation in which it is asserted that, but for the negligence, a different result would have been reached. According to the rationale, it is does not matter that the client does not seek to overturn the prior result, but uses it as the basis for complaint. The re-litigation is regarded as challenging a lawful result and so as offending the finality principle, distinguished from challenge by appeal, because it would be re-litigation 'of a skewed and limited kind' (D'Orta-Ekenaike v Victoria Legal Aid at [45]). 161As the Court of Appeal has said, the law is settled that the immunity attaches to acts as well as omissions, and extends to the conduct of solicitors, including a solicitor whose role is as an instructing solicitor to a barrister who appears in Court: Attard at [2]. 162Part of the claim here is for wasted costs. As a separate category, a claim for wasted costs attracts the advocate's immunity. That is because seeking to recover wasted costs cuts across the principle of finality because a dispute about wasted costs might become the vehicle for a dispute about the outcome of the litigation: Attard at [24]-[28], D'Orta at [83]. 163As a matter of principle, the immunity applies to claims made for damages arising from statutory causes of action, including s 42 of the Fair Trading Act 1987: Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 at [363]-[365]; MacRae v Stevens [1996] Aust Torts Reports 81-405. 164The question then becomes whether it is appropriate to determine the separate question which raises the immunity issue on the basis of the pleadings, rather than after a trial of all of the facts. The starting point is to note that the parties have consented to the determination of the separate questions at this stage of the proceedings. 165Pleadings are the obvious starting point but in some cases will not be sufficient to enable identification of the negligent conduct. However, in the circumstances of this case, the pleadings on their face are detailed and clear as to the alleged negligence in the conduct of the litigation, and further, the breaches of duty alleged are clear. 166The oral submissions of counsel for Ms Young also make it plain that the reach of the factual allegations underlying the alleged breaches of the duty of care, of the retainer and of the fiduciary duty (which it was intended to plead), encompass advice received about the commencement of proceedings, the drafting of the pleadings including the decision as to whether to include Warringah Council as a party, the conduct of the proceedings and, ultimately, the settlement of the proceedings on terms which were wholly disadvantageous, so it is alleged, to Ms Young. 167I am satisfied that the question of the application of the advocate's immunity can be determined on the basis of the pleadings. This accords with the consent of the parties. 168Each of the matters to which reference has been made, fall comfortably within the boundaries of advocate's immunity discussed in many of the cases. In Keefe v Marks (1989) 16 NSWLR 713, Gleeson CJ said at 718E, with respect to matters which would typically fall within the immunity: "That would include such matters as interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended. Matters of that kind would ordinarily be under active consideration, as required, not only prior to the commencement of the hearing but also throughout the hearing and right up until the time of the conclusion of the proceedings." 169I am satisfied that, in respect to all of the allegations made against the first, second and third defendants even if proved, the conduct complained of occurred in the course of the proceedings in Court was intimately connected to the conduct of the proceedings in the Court and contributed to the result achieved in court by way of the settlement, and the order for costs. Accordingly, it is subject to the advocate's immunity. The advocate's immunity provides a complete defence to the allegations made by Ms Young in this suit, against the first, second and third defendants. 170Accordingly, the first two questions ought be answered in the affirmative and with respect to all causes of action. 171As 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. 172The 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. 173Prior 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. 174However, 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]. 175Accordingly, 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.

Witness Immunity 176The issue of witness immunity is relevant with respect to the position of the fourth and fifth defendants. 177In R v Skinner (1772) Lofft 54, at 56; 98 ER 529, and 530, Lord Mansfield concisely explained the principle of immunity of a witness from suit in this way: "... neither party, witness, counsel, juror or judge can be put to answer, civilly or criminally for words spoken in office." 178In Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263, Sir Fitzroy Kelly, the Lord Chief Baron of the Exchequer, in delivering the unanimous judgment of all of the 10 judges of the Court of Exchequer, when dealing with the evidence of a witness at an Army Court of Inquiry, said this: "The authorities are clear, uniform and conclusive, that no action for libel or slander lies whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognised by the law." 179The Lord Chief Baron went on to cite with approval two earlier decisions, Yates v Lansig 5 Johns R. 282 N.Y. (1810), and Revis v Smith (1856) 18 C.B. 126, as authorities for the proposition that: "... no action lies against parties or witnesses for anything said or done, although falsely and maliciously, and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice." 180The rule was said to be inflexible and based on public policy: Henderson v Broomhead (1859) 4 H&N 569; 157 E.R. 964. 181The High Court of Australia first came to consider the issue in Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. At 140, Starke J said: "No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against jurors in respect of their verdict." 182In the same case, Williams J (with whom Rich ACJ agreed) said at 149: "It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box." 183The issue of witness immunity was discussed in D'Orta in the plurality judgment. Their Honours said this at [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 the 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 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 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." (footnote omitted) 184I note that in Jones v Kaney [2011] UK SC 13; [2011] 2 AC 398, a majority of the Supreme Court of the United Kingdom have held that a retained expert witness was not entitled to the benefit of an immunity from actions brought by his or her own clients for professional negligence. But this was a policy decision which reflected the earlier decision of the House of Lords to abolish advocate's immunity in the United Kingdom. It is not relevant in the circumstances of this case, because I am bound by the decision of the High Court in Cabassi and the considered obiter in D'Orta. 185The claim made by Ms Young against Dr Perrens, the fifth defendant, is that he undertook work pursuant to a retainer to advise and give evidence issued to him by the first and second defendants on behalf of Ms Young. He was asked to prepare an appropriate remediation plan for the purpose of presentation in the litigation, in circumstances where he was provided with the affidavit evidence of the respondents in the Land and Environment Court, and the application and points of claim filed by Ms Young. It is appropriate to note that one of the orders sought by Ms Young in the Land and Environment Court was under s 124 of the Environment Planning and Assessment Act 1979, that Mr and Mrs King be required to reinstate their land and buildings on their site to the state they were in prior to the unlawful works being undertaken. The remediation plan of Dr Perrens was prepared as evidence in support of this claim. 186The preparation of the report by Dr Perrens, and the appropriate remediation planned, were made available in the litigation. As a consequence, Dr Perrens participated in an expert conclave at the Court on 16 February 2004, which produced Exhibit A, a document which contained details of drainage works, which formed part of the consent settlement of the proceedings. 187Ms Young alleges, in her Statement of Claim in these proceedings, that the Land and Environment Court proceedings were settled on terms that Mr and Mrs King, the respondents to those proceedings, were required to submit a development approval seeking approval for a retaining wall and for carrying out the works identified in Exhibit A. It is alleged that that settlement was wholly inadequate with respect to drainage because appropriate remediation was not achieved, and the plaintiff was thereby prevented from returning to Court to seek an appropriate remedy. It is said that as a consequence of the advice given by the fifth defendant, the plaintiff has suffered the following loss and damage: (a)diminution in the value of her property; (b)further (prospective) damage to her house; (c)loss of opportunity to vindicate her rights by reason of the unlawful works addressed in the original proceedings; (d)a lessening of the plaintiff's ability to vindicate her rights by reason of the unlawful works because of an arguable res judicata following the dismissal of the Land and Environment Court proceedings; (e)damages by reason of the cost and prejudice inherent in the need to take further proceedings; and (f)fees paid to the solicitors. 188The damage alleged against the engineers is the same as that alleged against the lawyers. 189It is clear from the pleadings that Ms Young's case against Dr Perrens is one based on bad advice, given in the course of proceedings, in his capacity as an expert witness which ultimately resulted in the settlement which occurred. Put differently, Ms Young asserts that if such advice had not been given, a different final result would have been reached. 190Accordingly, I conclude that the witness immunity is available to Dr Perrens. 191The fourth defendant, Hughes Trueman Pty Ltd, was the employer of Dr Perrens and is sued as being vicariously liable for his tortious conduct. A person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the alleged tortfeasor: see Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268; Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295. 192To the extent that Hughes Trueman Pty Ltd, the fourth defendant, is sued as being directly liable, any such suit would require the adducing of evidence in court to support the allegation that the evidence of Dr Perrens was in some way directly liable for the outcome. This would offend the underlying rationale of witness immunity: see Griffiths at [120]. 193Witness immunity extends to statutory causes of action such as those brought under the Trade Practices Act (or the Fair Trading Act): Griffiths at [121]. 194In those circumstances, I am satisfied that the separate question with respect to the fourth and fifth defendants should also be answered in the affirmative, and with respect to all causes of action.

Conclusion 195The answers to the separate questions which accept the arguments for the defendants, that the principles of advocate's immunity or witness immunity are applicable in the circumstances of this case, mean that the whole of the proceedings should be dismissed.

Orders 196Accordingly, I make the following orders: (1)The answers to the separate questions are as follows: (a)Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the first and second defendants? Answer: The defence of advocate's immunity is a complete answer to all of the causes of action which the plaintiff relies upon against the first and second defendants. (b)Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the third defendant? Answer: The defence of advocate's immunity is a complete answer to all of the causes of action upon which the plaintiff relies upon against the third defendant. (c)Is the defence of witness immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the fourth and fifth defendants? Answer: The defence of witness immunity is a complete answer to all of the causes of action which the plaintiff relies upon against the fourth and fifth defendants. (2)Proceedings dismissed. (3)Plaintiff to pay the defendants' costs. (4)Reserve liberty to the defendants to apply within 28 days for any different order as to costs. (5)Notice of Motion of the plaintiff filed 23 August 2013 be dismissed.

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: 29 April 2014