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.