Alpine Holdings Pty Ltd v Feinauer
[2008] WASCA 85
•20 DECEMBER 2007
ALPINE HOLDINGS PTY LTD -v- FEINAUER [2008] WASCA 85
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 85 | |
| THE COURT OF APPEAL (WA) | 30/04/2008 | ||
| Case No: | CACV:55/2007 | 20 DECEMBER 2007 | |
| Coram: | STEYTLER P NEWNES AJA | 19/12/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ALPINE HOLDINGS PTY LTD EGON KONIG SHELLEY KONIG DIRK FEINAUER |
Catchwords: | Negligence Advocate's immunity Claims by client that solicitor negligent in pleading hopeless case in earlier proceedings and in advising client that settlement offer should be rejected Claims struck out on interlocutory application as subject of advocate's immunity Whether client's claims are arguable Ambit of advocate's immunity for out of court work Whether advocate's immunity applies to claim under Fair Trading Act 1987 (WA) |
Legislation: | Fair Trading Act 1987 (WA), s 10 |
Case References: | Agar v Hyde (2000) 201 CLR 552 Alpine Holdings Pty Ltd v Feinauer [2007] WASC 58 Biggar v McLeod [1978] 2 NZLR 9 Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 Chamberlain v Ormsby [2005] NSWCA 454 Donellan v Watson (1990) 21 NSWLR 335 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Francis v Bunnett [2007] VSC 527 Giannarelli v Wraith (1988) 165 CLR 543 Gray v Morris [2004] 2 Qd R 118 Keefe v Marks (1989) 16 NSWLR 713 M M & R Pty Ltd v Grills [2007] VSC 528 Rees v Sinclair [1974] 1 NZLR 180 Rondel v Worsley [1969] 1 AC 191 Saif Ali v Sydney Mitchell & Co [1980] AC 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALPINE HOLDINGS PTY LTD -v- FEINAUER [2008] WASCA 85 CORAM : STEYTLER P
- NEWNES AJA
- First Appellant
EGON KONIG
Second Appellant
SHELLEY KONIG
Third Appellant
AND
DIRK FEINAUER
Respondent
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ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : ALPINE HOLDINGS PTY LTD & ORS -v- FEINAUER [2007] WASC 58
File No : CIV 1001 of 2005
Catchwords:
Negligence - Advocate's immunity - Claims by client that solicitor negligent in pleading hopeless case in earlier proceedings and in advising client that settlement offer should be rejected - Claims struck out on interlocutory application as subject of advocate's immunity - Whether client's claims are arguable - Ambit of advocate's immunity for out of court work - Whether advocate's immunity applies to claim under Fair Trading Act 1987 (WA)
Legislation:
Fair Trading Act 1987 (WA), s 10
Result:
Appeal allowed
Category: B
Representation:
Counsel:
First Appellant : Mr A Metaxas
Second Appellant : Mr A Metaxas
Third Appellant : Mr A Metaxas
Respondent : Mr E M Corboy SC
Solicitors:
First Appellant : Metaxas & Hager
Second Appellant : Metaxas & Hager
- Third Appellant : Metaxas & Hager
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Agar v Hyde (2000) 201 CLR 552
Alpine Holdings Pty Ltd v Feinauer [2007] WASC 58
Biggar v McLeod [1978] 2 NZLR 9
Boland v Yates Property Corporation Pty Ltd [1999] HCA 64
Chamberlain v Ormsby [2005] NSWCA 454
Donellan v Watson (1990) 21 NSWLR 335
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Francis v Bunnett [2007] VSC 527
Giannarelli v Wraith (1988) 165 CLR 543
Gray v Morris [2004] 2 Qd R 118
Keefe v Marks (1989) 16 NSWLR 713
M M & R Pty Ltd v Grills [2007] VSC 528
Rees v Sinclair [1974] 1 NZLR 180
Rondel v Worsley [1969] 1 AC 191
Saif Ali v Sydney Mitchell & Co [1980] AC 198
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1 JUDGMENT OF THE COURT: On 20 December 2007, this court granted leave to appeal and allowed an appeal against a decision of Master Sanderson, by which the learned master struck out certain paragraphs of the appellants' (the plaintiffs in the action) re-amended statement of claim on the ground that those paragraphs disclosed no arguable cause of action. We said we would deliver reasons for our decision later. These are the reasons.
The background
2 The appellants' action against the respondent arises out of earlier proceedings by the appellants against Warwick Entertainment Centre Pty Ltd (Warwick) for damages for misleading and deceptive conduct in relation to a lease of certain premises by the first appellant. The second and third appellants were and are the directors and shareholders of the first appellant and the guarantors of the lease. The respondent was the appellants' solicitor in the action.
3 The appellants were successful at trial, but on appeal the amount of the damages awarded by the trial judge was substantially reduced.
4 The appellants' re-amended statement of claim (statement of claim) in the current action against the respondent contains a number of different claims, some of which are not relevant for present purposes. Relevantly, the appellants claim, first, that prior to the trial of the action against Warwick the respondent engaged in misleading and deceptive conduct in respect of the amount of damages to which the appellants would be entitled in the action (first claim), and, secondly, that the respondent was negligent and engaged in misleading and deceptive conduct in respect of advice he gave to the appellants in relation to an offer of settlement made by Warwick after the trial but before Warwick's appeal was heard (second claim).
5 On 14 March 2007, the learned master struck out both of those claims on the basis that the respondent's conduct was the subject of advocate's immunity and the appellants therefore had no arguable cause of action. It was against that decision that the present appeal was brought.
The statement of claim
6 In the statement of claim, the appellants plead that, in about 1992, the first appellant, represented by the second appellant, entered into negotiations with Warwick to take a lease of certain premises in a commercial development being constructed by Warwick. The first
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- appellant proposed to fit out and operate the premises as a café. The appellants say that in the course of negotiations for the lease Warwick made representations to them to the effect that certain other well-known businesses would be operating on the same level of the development as the first appellant's proposed business and that there would be no direct competitors of the first appellant's business on that level.
7 The appellants say that, induced by those representations, the first appellant executed an agreement to lease the premises for a term of 15 years from 15 September 1993 and the second and third appellants entered into a guarantee of the first appellant's covenants under the lease. In fact, the representations were misleading and deceptive; the other businesses did not operate in the development and there were competitors of the first appellant's business on the same level of the development. As a result, the trading of the café was unprofitable and the first appellant was unable to sell the café.
8 In February 1997, the first appellant abandoned the café and some of the equipment it had installed. Warwick treated that conduct as a repudiation of the lease, which it accepted.
9 Proceedings were subsequently commenced by the appellants against Warwick claiming damages and other relief for misleading and deceptive conduct. In those proceedings, Warwick counterclaimed against the appellants an amount of $617,581.08 said to be owing to it by the appellants in respect of the lease.
10 The appellants say that, on about 17 February 1997, the second and third appellants and the respondent agreed that the respondent would act as the solicitor for the appellants and advise them in respect of their claim against Warwick for misleading or deceptive conduct and Warwick's counterclaim.
11 The appellants plead that in the course of the action, the respondent, on the appellants' behalf, engaged an accountant, Russell Morgan (Morgan), to prepare a report on the loss and damage suffered by the appellants by reason of Warwick's misleading or deceptive conduct. Morgan prepared a report dated 5 October 1999 (Morgan report) in which he expressed the opinion that the damages which were recoverable by the appellants were:
• the first appellant's trading losses in the operation of the café from 1993 to 1997, in the sum of $169,786 (trading losses);
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- • the income the second and third appellants should reasonably have earned as employees of the first appellant in the operation of the café, in the sum of $125,166 (lost income);
• the money expended by the first appellant in setting up the café, in the sum of $168,436 (set-up costs); and
• the first appellant's loss of profits from the operation of the café for 15 years from 1993 to 2008 in the sum of $25,234 per annum, or a total of $378,510 (future profits).
12 In a further report in February 2001, Morgan added as part of the second and third appellants' loss and damage, an amount of $15,607, being the selling costs of their previous business.
13 The appellants say that, prior to the trial of the action, the respondent sent to the appellants a copy of the Morgan report, together with a copy of a letter the respondent had sent to the solicitors for Warwick on 2 March 2000 in which the respondent asserted that the appellants' loss and damage included the lost income, the set-up costs and the future profits.
14 The appellants say that implicit in the provision of that material to them were representations by the respondent that the Morgan report formulated the appellants' loss and damage in accordance with prevailing legal principles, that there was no alternative or additional formulation of their loss and damage which should be advanced in the action, that there were reasonable prospects the appellants would be awarded damages in those amounts, and that any award on that basis would be in accordance with prevailing legal principles for the assessment of loss and damage for misleading or deceptive conduct.
15 The appellants plead that the respondent thereby engaged in misleading or deceptive conduct in that the formulation of the loss and damage in the Morgan report was not in accordance with prevailing legal principles for the assessment of damages for misleading or deceptive conduct. The claims for damages for lost income, set-up costs and future profits were each in the nature of expectation damages and such damages were not recoverable in the absence of evidence that, but for the misleading or deceptive conduct, the first appellant would have entered into a contract other than the agreement to lease and that in respect of that other contract there would have been a different financial outcome. The appellants were not able to give such evidence.
16 The appellants plead that in reliance upon the respondent's conduct they authorised the respondent to plead the appellants' claim for damages
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- in accordance with the Morgan report and did not instruct the respondent to reformulate the claim for the loss and damage in accordance with prevailing legal principles. The respondent pleaded the appellants' claim for loss and damage in accordance with the Morgan report and the action proceeded to trial on that basis.
17 The appellants were successful at trial and, on 14 June 2003, judgment was entered for the appellants in the sum of $1,118,888. Apart from interest, that sum was made up of:
• the sum of $169,786 for the first appellant's trading losses;
• the sum of $548,296 for the profits forgone by the first appellant over the period of the lease;
• the sum of $211,030 for a loan by the second and third appellants to the first appellant;
• the sum of $125,166 for the second and third appellants' lost wages;
• the sum of $15,607 for the selling expenses incurred by the second and third appellants in selling their previous business; and
• the sum of $20,000 for the second and third appellants' distress and anxiety.
18 On 16 September 2006, the Court of Appeal allowed an appeal by Warwick against the damages award and reduced the first appellant's damages to the sum of $169,786, for trading losses, and the second and third appellants' damages to $20,000, for distress and anxiety.
19 The appellants allege that in prosecuting the claim as formulated by the respondent they incurred wasted expense, including the cost of the portion of the Morgan report and of Morgan's evidence relating to the expectation damages, the wasted time at the hearing for Warwick to adduce evidence in relation to the expectation damages, and the time and expense involved in the submissions on the expectation damages.
20 The appellants claim against the respondent damages for misleading and deceptive conduct under s 10 of the Fair Trading Act 1987 (WA).
21 The second claim relates to an offer of settlement made by Warwick before Warwick's appeal was heard.
22 The appellants plead that on 11 November 2003, after judgment in the action and before the hearing of the appeal, the solicitors for Warwick offered to compromise the appellants' rights under the judgment and to
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- settle the appeal on the basis that Warwick would pay to the appellants the sum of $576,062.60 within 10 days. The settlement was subject to a condition which is not relevant for present purposes.
23 The appellants plead that, by a letter dated 11 November 2003, the respondent advised them to reject the offer.
24 The appellants say that, by a letter dated 21 November 2003, the respondent sent to them a copy of his letter of the same date to Warwick's solicitors rejecting the offer and making a counter-offer that Warwick pay to the appellants the sum of $1.2 million to compromise the appeal and the judgment.
25 It is alleged that by sending to the appellants a copy of his letter to Warwick's solicitors of 21 November 2003, the respondent impliedly advised the appellants that if the appeal proceeded to hearing there was a real and not fanciful prospect that Warwick would be ordered to pay the appellants the sum of $1.2 million inclusive of costs.
26 The appellants allege that the respondent was negligent in failing to advise them that the expectation damages could not be sustained on the hearing of the appeal and that Warwick's offer should be accepted, as it would result in the appellants achieving a better monetary outcome than if the appeal proceeded to hearing.
27 The appellants also plead that, by a letter to the appellants dated 25 November 2003, the respondent advised them there was a significant prospect that the appeal would succeed as regards part of the judgment and there was little that could be done to compromise the appeal until sufficient pressure could be applied to Warwick.
28 The appellants plead that the respondent was thereby negligent in that, having advised them that there was a significant prospect the appeal would succeed as regards part of the judgment, he failed to advise them as to the extent to which the appeal was likely to succeed so as to enable the appellants to determine if they should accept Warwick's offer. The appellants also say that the respondent was negligent in that, by that letter, he impliedly advised the appellants that there were processes available to them which would permit them to bring sufficient pressure to bear upon Warwick so as to cause it to make an offer more advantageous than the offer of 11 November 2003, when there was no basis for such advice.
29 The appellants allege that by reason of the respondent's negligence they authorised the respondent to reject Warwick's offer of settlement.
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- They say that, but for the respondent's negligence, they would have accepted that offer or alternatively would have had the chance to compromise the appeal on the terms of that offer.
30 The appellants allege that the effect of the subsequent judgment of the Court of Appeal is that the appellants will receive a total amount of approximately $289,000 (inclusive of costs), but will have to pay Warwick's costs, and their own costs, of the appeal. They say they would have been better off to the extent of some $350,000 if they had accepted Warwick's settlement offer.
31 The appellants also claim that the respondent engaged in misleading or deceptive conduct in relation to Warwick's offer. They allege, in effect, that by his letters of 1 November 2003, 21 November 2003 and 25 November 2003, the respondent made implied representations that while the appeal would succeed to some extent, there was no reasonable prospect that it would succeed to the extent that the appellants' interests would be served by acceptance of Warwick's offer and that the reduction of the damages was unlikely to be of such a magnitude that the appellants, acting prudently, should accept the offer.
32 It is also alleged, in effect, that by the letter of 25 November 2003 the respondent impliedly represented that there were processes available by which Warwick could be compelled or persuaded to make a more advantageous offer before the appeal was heard.
33 The appellants plead that the respondent's representations were misleading or deceptive in that:
• it was inevitable the appeals would succeed so as to reduce the damages to an amount of $189,786, at best;
• it was therefore in the interests of the appellants to accept Warwick's offer; and
• there were no means available to the appellants by the processes of the court by which pressure could be applied to Warwick so as to compel or persuade it to make a more advantageous offer.
34 The appellants claim that they have therefore suffered loss and damage by reason of the misleading or deceptive conduct of the respondent. The same damage is relied upon as is pleaded in the claim for negligence.
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The decision at first instance
35 The respondent applied to strike out the claims on the ground that they each fell within the advocate's immunity and, to the extent it pleaded those claims, the statement of claim therefore disclosed no arguable cause of action. The learned master upheld that contention: Alpine Holdings Pty Ltd v Feinauer [2007] WASC 58.
36 The learned master said in relation to the first claim:
[W]hat is being put is that the defendant failed to properly plead and pursue the plaintiffs' claims … So the question then is whether advocate's immunity will apply to a statutory cause of action as against a cause of action founded in common law.
Advocate's immunity reflects a 'central and pervading tenet of the judicial system' that controversies, once resolved, are not to be re-opened: see D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 per Gleeson CJ, Gummow, Hayne and Heydon JJ at 17, 20 and 30 - 31. Although the High Court in D'Orta-Ekenaike was expressly dealing with a subsequent claim in negligence, the majority made clear the immunity applies to a subsequent suit or otherwise: see Gleeson CJ et al at 85. There can be no basis for confining the immunity to a subsequent claim at common law. The policy of finality would be subverted if a matter could be re-litigated under the guise of a statutory right where the immunity would otherwise preclude a claim at common law or in equity. Subsequent to D'Orta-Ekenaike, there is no rational basis for drawing such a distinction.
Counsel for the plaintiffs referred to two cases which, it was submitted, establish that the question of advocate's immunity where a statutory cause of action is pleaded, is yet to be determined. These two cases were Sheridan International Pty Ltd v CS Brooks Inc [2005] NSWSC 140 and Gray v Morris [2004] QCA 5. In my view, whatever may be the proper interpretation of these two cases, they cannot stand when put against the clear reasoning of the majority in D'Orta-Ekenaike.
D'Orta-Ekenaike also reaffirmed the extent of the immunity. It is to be determined according to the test in Giannarelli v Wraith (1988) 165 CLR 543. The effect of that decision is that work done out of court leading to a decision affecting the conduct of the case in court is covered by the advocate's immunity. What is complained of in pars 35 to 44 may be work that was undertaken out of court. But it led to a decision affecting the conduct of the case in court and is covered by the advocate's immunity. [6 - 9]
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37 In relation to the second claim, the learned master concluded that the same reasoning applied:
Again, what is complained of is an action framed in misleading and deceptive conduct. But what is complained of is that the defendant failed to properly advise the plaintiffs about errors of law in the trial Judge's award of damages, the conduct of the appeal and the possible compromise of the Warwick action and the appeal. Consistent with what I have said above, advocate's immunity applies to those allegations and the paragraphs cannot stand. [10]
38 The learned master concluded that no purpose would be served by allowing the appellants another opportunity to plead their case in respect of those claims.
The grounds of appeal
39 The appellants relied upon three grounds of appeal. They are as follows:
1. The learned master failed to give sufficient reasons for his decision as regards:
1.1 the proper interpretation of Gray v Morris [2004] QCA 5 and Sheridan International Pty Ltd v CS Brooks Inc [2005] NSWSC 140; and
1.2 the basis upon which [the claims in question] would amount to a re-litigation of part of CIV 1208 of 1998 (Action) and so offend the finality principle.
2. The learned master was wrong in law to strike out the first claim and the second claim insofar as he:
2.1 found that advocate's immunity operated to preclude the claims when there was no binding authority to that effect in respect of a cause of action based upon s 10 of the Fair Trading Act 1987 (WA) (FTA) and in the circumstances of the claim;
2.2 wrongly interpreted the ratio decidendi of Giannarelli v Wraith (1988) 165 CLR 543 and D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 to be such that the claims could not be pursued against the respondent having regard to advocate's immunity when neither decision was relevant because the claim was founded upon misleading conduct in the course of a civil action, not negligence in criminal proceeding as was the case in both decisions;
- 2.3 found that the immunity applied to the claims when on the facts alleged by the appellants he should have found that the claims did not seek to impugn the decision in the Action nor in the Court of Appeal and it would only be by seeking to impugn a decision of a court that the appellants could subvert the principle of finality.
- 3. The learned master was wrong in law to strike out the second claim insofar as he should have found that the respondent's work in advising the appellants in respect of the Offer was work done out of court which could not affect and did not affect the conduct of the Action so that the immunity could not apply to the second claim.
The disposition of the appeal
40 Grounds of appeal 2.3 and 3 can conveniently for present purposes be reduced to the question whether the learned master was correct in finding that the appellants' claims are not arguably open, on the ground that advocate's immunity plainly applies to the respondent's conduct in relation to the formulation of the appellants' damages claim and to his conduct in relation to the settlement offer.
41 In our respectful view, on the facts pleaded by the appellants the position is not as clear as the learned master considered it was.
42 In considering the ambit of advocate's immunity, it is convenient to turn first to the decision of the House of Lords in Rondel v Worsley [1969] 1 AC 191. In that case, the plaintiff claimed that the defendant barrister had been negligent in his conduct of the plaintiff's defence at trial on charges of causing grievous bodily harm. The House of Lords affirmed the doctrine that a barrister was immune from a claim in negligence in respect of the conduct of a case in court. It considered that the basis of the immunity lay in public policy, principally upon the ground that a barrister owes a duty to the court as well as to his client and should not be inhibited in the discharge of the former duty by a fear of an action in negligence by his client, but also upon the undesirability of what Lord Morris of Borth-y-Gest described as 'a system under which, as a sort of by-product after the trial of an action and any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation' (251).
43 By way of obiter, all of their Lordships expressed the view that the immunity extended to work out of court, but expressed the ambit of it in different ways. Lord Reid said that the immunity applied when 'drawing pleadings or conducting subsequent stages in the case' and that it will
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- apply 'when litigation is impending' (231 - 232). Lord Morris of Borth-y-Gest said it applied to 'what is said or done in the … management of a case in court' (247). Lord Pearce took a much wider view, being of the opinion that no distinction was to be drawn between the liability of a barrister in litigation and in other non-litigious work (276). Lord Upjohn suggested that the immunity applied in matters pertaining to litigation and should start 'at [the] letter before action' (286). Lord Pearson did not express a view as to the ambit of the immunity.
44 The decision of the House of Lords in Rondel v Worsley was followed by the New Zealand Court of Appeal in Rees v Sinclair [1974] 1 NZLR 180. There the appeal was dismissed on the ground that no negligence had been established on the part of the barrister, but in an oft-cited passage, McCarthy P said in relation the extent of the immunity:
But I cannot narrow the protection to what is done in Court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, and that is why I would not be prepared to include anything which does not come within the test I have stated. (187)
45 The House of Lords had occasion to consider the immunity specifically in connection with work done out of court in Saif Ali v Sydney Mitchell & Co [1980] AC 198. In that case, the plaintiff had been injured in a motor vehicle accident and had consulted the defendant solicitors regarding a claim for damages in respect of his injuries. The defendant briefed a barrister who drafted the pleadings and advised on the proceedings. An action was commenced against the owner of the vehicle in which the plaintiff had been travelling, on the basis that the driver was the agent of the owner. The owner denied the driver was his agent and ultimately the plaintiff discontinued that claim. By then any claim against the driver herself, or against the driver of the other vehicle involved in the accident, was time-barred. The plaintiff sued the solicitors for negligence in failing to advise him to take action against either or both of the drivers concerned. The solicitors joined the barrister as a third party, claiming, in effect, that he was negligent in pleading a claim only against the owner and in advising that the drivers should not be joined as defendants to the action. The question before the House of Lords was whether the claim against the barrister fell within the immunity.
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46 The House of Lords, by a majority (Lord Russell of Killowen and Lord Keith of Kinkel dissenting), held that it did not. In separate speeches, each of the members of the House of Lords comprising the majority applied the statement of McCarthy P in Rees v Sinclair, referred to above, and concluded that the failure to advise who was to be a party and to settle pleadings in accordance with that advice did not fall within the ambit of the immunity. Such work was not intimately connected with the conduct of a case in court.
47 Notably for present purposes, Lord Wilberforce, in the course of discussing the immunity, suggested (214 - 215) that if it is based on the public policy that issues previously tried between parties should not be re-litigated between barrister and client, the immunity should not extend to a case which never came to trial by reason of the barrister's alleged negligence.
48 Lord Diplock considered that the two principal grounds for upholding the immunity were first, that it was part of the general immunity from civil liability which attaches to all persons who participate in proceedings in court, and, secondly, the undesirability of permitting collateral attacks on the decisions of courts, which would bring the administration of justice into disrepute. His Lordship considered that 'save to a very limited extent … neither [of those grounds] would apply to work done out of court'. Lord Diplock, having observed that the retrial of issues already determined in earlier proceedings is calculated to bring the administration of justice into disrepute, continued:
A similar objection, it may be mentioned, would not apply in cases where an action has been dismissed or judgment entered without a contested hearing, and there is no possibility of restoring the action and proceeding to a trial. If the dismissal or the entry of judgment was a consequence of the negligence of the legal advisers of a party to the action, a claim in negligence against the legal advisers at fault does not involve any allegation that the order of the court which dismissed the action or entered judgment was wrong.
49 Lord Salmon took the opportunity to clarify what he had said in the Court of Appeal in Rondel v Worsley in relation to drafting pleadings and advising on evidence. Lord Salmon explained that he considered the immunity did not always but 'might sometimes extend to drafting pleadings and advising on evidence' (emphasis in original). The question in each case is whether the conduct is so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to
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- a hearing. Lord Salmon concluded that there was no such connection in this case:
The advice given made it impossible for the plaintiff's unanswerable case to be heard in court. It was not even remotely connected with counsel's duty to the court nor with public policy.
51 Lord Russell of Killowen and Lord Keith of Kinkel, dissenting, considered that immunity applied to all of the work of a barrister in connection with litigation even if, as the result of the negligence, the litigation does not come about. The immunity included, for example, work such as advice on settlement, advice on evidence and advice on parties. The immunity was not limited to work which affected the way in which the case is to be conducted when it comes to hearing.
52 The question of the immunity was considered by the High Court in Giannarelli v Wraith (1988) 165 CLR 543. There the plaintiffs had been convicted of perjury as a result of evidence they gave to a Royal Commission. Their convictions were ultimately quashed on the ground that under the Royal Commissions Act 1902 (Cth) the evidence given by the plaintiffs was inadmissible on the perjury charges. The plaintiffs brought proceedings against the barristers who had appeared for them in connection with their trial on the perjury charges, alleging that the barristers were negligent in failing to advise that the evidence was inadmissible and to object to the tender of the evidence.
53 The High Court, by a majority (Mason CJ, Wilson, Brennan and Dawson JJ; Deane, Toohey and Gaudron JJ dissenting) held that the barristers were immune from an action for negligence in the conduct of a case in court or for work out of court which leads to a decision affecting the conduct of a case in court.
54 Mason CJ considered (555 - 558) that two aspects of public policy underlay the immunity, namely, first, that a barrister's overriding responsibility to the court - which was an essential element of the administration of justice - required that he or she be able to exercise an independent judgment in the conduct of the proceedings uninfluenced by the fear of a claim for negligence at the suit of the client, and secondly, that the decisions of the courts should not be subject to collateral attack by means of actions for negligence against counsel for in-court negligence. His Honour considered that no distinction was to be drawn between
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- barristers and solicitors who act as advocates; it was the function performed, not the label attached which gives rise to the immunity. Mason CJ continued:
However, the grounds for denying liability for in-court negligence have no application to work done out of court which is unconnected with work done in court: Saif Ali. The public policy considerations underlying immunity from in-court negligence have no relevance to a barrister's liability for negligent advice in relation to out of court matters, in accordance with the principles expounded in such cases as San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161, Hawkins v Clayton (1988) 62 ALJR 240; 78 ALR 69, and Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The problem is: where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 where his Honour said (at 187):
'… the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.' (559 - 560)
56 Brennan J agreed with Mason CJ in respect of the immunity and said:
Therefore I would hold the common law to be this: neither a barrister nor a solicitor may be sued by a client in respect of any act done or omission made in the conduct of the client's case in court or in the making of
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- preliminary decisions affecting the way in which the case is to be conducted when it comes to hearing. (579)
57 Dawson J considered that the immunity was based principally on two considerations of public policy; namely, the availability of an action in negligence would subject the decision of a court to collateral attack, and it was part of the broad immunity given to anyone who participated in proceedings in a court. His Honour said in relation to the first:
Nothing could be more calculated to destroy confidence in the processes of the court 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. (595)
58 Dawson J considered the most cogent ground, however, was that it was part of the broad immunity given to anyone who participated in proceedings in a court.
59 The minority in Giannarelli held that the effect of the Legal Profession Practice Act 1891 (Vic) was that Victorian barristers were not immune from actions in negligence.
60 In Keefe v Marks (1989) 16 NSWLR 713, the question was whether a barrister who had been briefed to advise about the preparation and conduct of proceedings was liable in negligence for failing to advise that interest should be claimed on damages and in omitting to include a claim for interest on damages in the plaintiff's statement of claim or to make any oral application for interest at the trial. At first instance, the plaintiff's claim against the barrister was struck out as disclosing no arguable cause of action. The plaintiff appealed.
61 The New South Wales Court of Appeal, by a majority (Gleeson CJ and Meagher JA; Priestley JA dissenting), held that the immunity applied to the claim. Gleeson CJ (with whom Meagher JA agreed) described the barrister's alleged negligence as involving a continuing course of conduct, or inaction, which extended up until the conclusion of the hearing and manifested itself in a failure to make a claim for interest, and to apply for any necessary amendment to the pleadings in order to enable that claim to be pursued. His Honour said that it was impossible to characterise that aspect of the barrister's work which occurred prior to the commencement of the hearing as 'work done out of court which is unconnected with work done in court'. On the contrary, in so far as complaint was made of action or inaction prior to the commencement of the hearing it concerned a matter which was intimately connected with the work ultimately done in
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- court and could fairly be said to be a preliminary decision affecting the way the case was to be conducted at the hearing. The principle of immunity could not be circumvented by 'drawing fine distinctions' between the preparation and the conduct of the case or 'between [the barrister's] failure to advert to the matter of interest while he was in his Chambers and his failure to do so while he was in Court' (720).
62 Priestley JA, dissenting, said:
Some things about the rule seem to be clear. It does not necessarily apply to all pleadings dealt with by counsel. In regard to a pleading the question is whether whatever was done by counsel in regard to that pleading was so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the in-court conduct of the case. Further, and more awkwardly, the rule is a relative one. The degree of connection between the in-court and out-of-court work must be assessed. (725)
63 Priestley JA concluded that it was arguable the negligence alleged did not fall within the immunity rule as expressed in Giannarelli.
64 In that case it is notable that, as Gleeson CJ pointed out, the loss was caused by a continuing course of conduct, or omission, that was maintained up to and including the hearing and ultimately affected the way the case was conducted at the hearing and the orders made. In such a case it is not difficult to see that to permit the client to fasten upon the conduct or omission at an earlier point in time as the negligence which caused the loss, would be substantially to erode the principle that the decisions of courts are not to be subject to collateral attack.
65 The immunity has most recently been considered by the High Court in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12. In that case, the plaintiff alleged that the solicitors and barrister who had represented him in criminal proceedings for rape had been negligent in advising him to plead guilty to the charge at a committal proceeding. After subsequently changing his plea to not guilty, the plaintiff was convicted at trial, the fact of the plea of guilty at the committal hearing being admitted in evidence at the trial. The conviction was set aside on appeal and at a retrial, when the fact of the guilty plea was excluded, the plaintiff had been acquitted of the charge. By a majority (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; Kirby J dissenting), the court held that the solicitors and barrister were immune from liability.
66 In a joint judgment, Gleeson CJ, Gummow, Hayne and Heydon JJ, declined to reconsider the court's decision in Giannarelli as to the
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- existence of the immunity but did go on to consider the grounds upon which the immunity is based. Their Honours considered that considerations of any connection between a barrister's inability to sue for fees, any perceived conflict with a barrister's duty to the court, and the maintenance of the cab rank rule, were of marginal, if any, relevance. They considered that the 'chilling effect' on counsel of the threat of a civil suit, with a consequent prolongation of trials, while not irrelevant, was not of 'determinative significance' [29]. Their Honours said:
… 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. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of relitigation would arise. There would be relitigation 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 relitigation 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 relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind. [45]
To remove the advocate's immunity would make a significant inroad upon what we have earlier described as a fundamental and pervading tenet of the judicial system. That inroad should not be created … underpinning the system is the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need. [84]
68 Gleeson CJ, Gummow, Hayne and Heydon JJ concluded [85] that there was no reason to depart from the test described in Giannarelli 'as work done in court or "work done out of court which leads to a decision affecting the conduct of the case in court" ' or as 'work intimately connected with work in a court', there being no significant difference between the two. Their Honours considered [87] that that criterion accorded with the purpose of the immunity by describing the acts or omissions to which immunity attaches by reference to the conduct of the case, it being the conduct of the case that generates the result which should not be impugned.
69 McHugh J agreed there was no reason to reconsider the decision in Giannarelli. In the course of considering the basis and extent of the immunity, his Honour pointed out that the immunity afforded advocates in
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- Australia involves a recognition of the existence of obligations of due care and skill owed to clients. It is the interjection of policy, arising from the difficulties of proving that a different result would have ensued but for the carelessness of the advocate and the legal principle of finality, that prevents an actionable duty of care arising.
70 His Honour expressed his agreement with the view of Gleeson CJ, Gummow, Hayne and Heydon JJ as to the adverse consequences for the administration of justice from re-litigation in negligence proceedings of issues already decided in earlier proceedings, and said:
There is, of course, a greater public interest in maintaining confidence in the administration of criminal rather than civil justice. So, it is possible to sue a practitioner for the negligent settlement of proceedings or for the negligent loss or abandonment of a cause of action. Such claims lead to the litigation of a primary claim even if that claim can no longer be pursued. These results flow even though there is a public interest in the finality achieved through the statutes of limitations and the promotion of out-of-court dispute settlement. But where a trial has taken place … public confidence in the administration of justice is likely to be impaired by the re-litigation in a negligence action of issues already judicially determined. [166]
71 McHugh J concluded that:
… the immunity should extend to any work, which, if the subject of a claim of negligence, would require the impugning of a final decision of a court or the re-litigation of matters already finally determined by a court. [168]
72 It is against that background that we turn to the particular question of the application of the immunity to advice on the compromise of an action by way of an out of court settlement. That question has been the subject of differing views.
73 In Biggar v McLeod [1978] 2 NZLR 9, the defendant, a barrister and solicitor in a fused profession, acted for the plaintiff in matrimonial proceedings. During an adjournment at the conclusion of the oral evidence at trial, the defendant advised the plaintiff that the proceedings could possibly be settled on certain terms which he put to her, and which the plaintiff said she would accept. The terms were agreed by the parties. When the judge returned into court he was informed of the settlement and by consent made a formal order giving effect to it. The plaintiff subsequently sued the defendant alleging he was negligent in advising her in relation to the settlement.
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74 The New Zealand Court of Appeal held that the settlement of the action was covered by the immunity. In so finding, Woodhouse J referred to the policy reasons outlined in Rondel v Worsley that it is in the public interest to retain the immunity so far as it relates to a barrister's work 'in conducting litigation'. It is apparent that foremost in his Honour's reasoning was the public interest in the uninhibited discharge of counsel's duty to the court and in avoiding the unnecessary prolongation of litigation. In that connection, Woodhouse J referred to the duty of counsel in appropriate situations to bring an end to the litigation if he thinks that advisable, and concluded that the ending of proceedings by a compromise, rather than by obtaining judgment, should be regarded as part and parcel of the work of counsel to which the immunity extended. Richardson J concluded that the policy considerations canvassed in Rondel v Worsley were as applicable to what counsel does in the course of a trial in relation to settlement as they were to his conduct in the courtroom. Quilliam J agreed with Woodhouse and Richardson JJ.
75 It is, however, clear that the policy considerations referred to by the court in that case as underlying the principle of immunity extend well beyond those more recently found by the High Court in D'Orta-Ekenaike to be its foundation.
76 A somewhat different situation arose in Donellan v Watson (1990) 21 NSWLR 335. There a solicitor, instructed by his client to compromise appeal proceedings, consented to orders to a different effect to those he was instructed to obtain. It was held that the immunity did not apply. Mahoney JA (with whom Waddell AJA agreed), observed that there had been no contested hearing and the negligence action did not seek to attack collaterally the decision of the judge to make the consent order; on the contrary, the action proceeded on the basis that the decision was correctly made by the judge on the basis of what he was told. Mahoney JA referred (337) to the rationale for the immunity given by Mason CJ in Giannarelli, that is, the advocate's duty to the court and the adverse consequences of re-litigation, and concluded that the negligence action did not fall within the rationale of the reasons for which the immunity is given. His Honour went on to say (338) that ordinarily an out of court compromise will fall within the immunity, but distinguished this case on the basis that it was concerned, not with the making of the compromise and in carrying it out, but with negligence in the failure to carry an authorised compromise into effect.
77 Handley JA considered (340 - 341) that the immunity should be strictly confined to those situations where the circumstances which justify
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- the immunity are present. He referred to Giannarelli and Saif Ali for the proposition that the immunity was grounded on the advocate's overriding duty of candour to the court, the need to protect those participating in the curial process, and the undesirability of permitting collateral attacks on decisions of courts. His Honour held (343) that none of those considerations applied; in particular, there was no conflict with the defendant's duty to the court and the claim against the defendant did not impugn the correctness of any earlier judicial decision.
78 The decision in Donellan v Watson pre-dated, of course, the decision of the High Court in D'Orta-Ekenaike.
79 In the present case, the respondent placed considerable reliance on the decision of the New South Wales Court of Appeal in Chamberlain v Ormsby [2005] NSWCA 454. In that case, the plaintiff had consulted the defendant solicitor in respect of an injury at work. The defendant, without proper instructions, filed applications for the determination of a lump sum payment under the Workers' Compensation Act 1987 (NSW) and briefed a barrister to advise and appear on the application. After receiving advice from the barrister, the plaintiff gave instructions to settle the proceedings. The effect of the settlement was to preclude the plaintiff from claiming common law damages against his employer. The plaintiff subsequently sued the defendant for negligence in failing adequately to advise him of his choices and entitlements, and the defendant cross-claimed against the barrister. Tobias JA (with whom Giles JA agreed) found that the immunity applied to the barrister's advice. His Honour referred to the test stated in Giannarelli, affirmed in D'Orta-Ekenaike, of work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court', or 'work intimately connected with' work in court. Tobias JA referred to the following passage from the judgment of McHugh J in D'Orta-Ekenaike as to the meaning of 'intimately connected':
The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence. An integral part of the advocate's role is the giving of advice on the basis of which the client will give instructions that direct the course of the proceedings. The advice is critical to and often determinative of the client's decision. [157]
80 Tobias JA observed that the barrister's allegedly negligent advice was critical to the plaintiff's decision to settle the proceedings. His Honour considered that it was 'difficult to imagine a stronger case than the present where the advice given by the barrister led to the plaintiff's decision as to the conduct of his case before the Compensation
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- Court, or one which was more intimately connected with the course of that case including its settlement' [120].
81 We do not, with respect, consider that the passage from the judgment of McHugh J to which Tobias JA referred supports that conclusion. McHugh J had earlier held [152] that a decision about a plea of guilty cannot be described as other than intimately connected with the conduct of a criminal cause; it is a decision made preliminary to the hearing of the charge which affects the conduct of the accused's matter before the court. In that connection, it is significant that his Honour's statement was made in circumstances where the plea of guilty would not avoid the matter going to a hearing, but would affect the conduct of the hearing. The reference by McHugh J to 'the giving of advice on the basis of which the client will give instructions that direct the course of the proceedings' must be read in that light and also in the context of the conclusion his Honour reached in relation to the extent of the immunity, namely, that it should extend to any work which, if the subject of a claim in negligence, would require the impugning of a final decision of a court or the relitigation of matters already determined by a court.
82 We do not, therefore, with respect, consider that what was said by McHugh J in D'Orta-Ekenaike provides support for the proposition that advice in relation to settlement before trial falls within the immunity.
83 In a very recent case, Francis v Bunnett [2007] VSC 527, it was held, albeit on a pleading summons, that whether or not the immunity applied to a settlement of proceedings was arguable. There the plaintiff alleged that the defendant solicitor had consented to settle the proceedings without her instructions, for an amount that was far less than she was entitled to. The defendant applied for the action to be summarily stayed or dismissed on the ground that advocate's immunity applied. Lasry J held that in light of the conclusion of the majority of the High Court in D'Orta-Ekenaike that the central justification for the immunity was to prevent the re-litigation of disputes previously resolved, it was arguable that where advocates resolve proceedings before trial and there is no quelling of the controversy by the exercise of judicial power involving the determination of the issues in the case, such activities and the work connected with them fall outside the immunity.
84 Having regard to the present state of the authorities, we do not consider it can be said with confidence where the line is to be drawn as to the application of the immunity in relation to advice given in connection with the settlement of legal proceedings. That is perhaps not surprising.
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- As Priestley JA observed in Keefe v Marks, the rule in relation to out of court work is a relative one and the degree of connection is a matter of assessment. Hard and fast distinctions are therefore likely to be elusive. What is clear, however, is that the justification for the immunity is the principle that once a controversy is resolved a party is not entitled to re-open it, except in the few narrowly defined circumstances referred to by the High Court in D'Orta-Ekenaike, and it is to that end that the immunity is directed.
85 Turning then to the specific issues that arise on this appeal, it is clear that a case is not to be summarily dismissed unless there is a high degree of certainty that it would fail if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552, 576. We do not consider there is that degree of certainty in this case.
86 As matters stand, it is, in our view, arguable that the second claim does not fall within the immunity. In the first place, the advice in relation to the settlement was arguably not connected with 'work done out of court which leads to a decision affecting the conduct of the case in court' or 'work intimately connected with work in court'. That is, it did not affect the conduct of the appeal in court, nor was it connected with any work that would or might be done in court, except in the general sense that it determined whether or not there was ultimately any litigation to proceed to court. In that sense, however, it might be thought not to differ in principle to advice on the prospects of success before action on which a decision is based as to whether or not to commence proceedings. We do not think it could be suggested in light of the modern authorities that advice of the latter kind would attract the immunity.
87 It is also arguable, having regard to the justification for the immunity as described by the majority in D'Orta-Ekenaike, that there is no occasion for the application of the immunity in the present case as the claim does not involve any derogation from, or undermining of, the principle of the finality of court decisions by requiring the re-opening of earlier litigation. It is not alleged that the decision of the Court of Appeal was wrong or that the negligence of the defendant brought about a decision of the court that would otherwise have been different. The claim does not require reconsideration of the correctness of the decision of the Court of Appeal. That decision is simply the basis upon which the claim is founded.
88 We should mention that it has been suggested that the actual outcome in D'Orta-Ekenaike is not consonant with the immunity principle being limited to the prevention of collateral attacks on earlier
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- decisions, in that to have allowed Mr D'Orta-Ekenaike to sue the legal practitioners who advised him to plead guilty at the committal hearing would not have undermined the jury's verdict at the second, ultimate trial: see M M & R Pty Ltd v Grills [2007] VSC 528 [34] - [35].
89 However, while it can be accepted that Mr D'Orta-Ekenaike's claim would not have undermined the verdict at the second trial, such a claim would necessarily have involved 'relitigation of a skewed and limited kind' in respect of the role, if any, that the plea at the committal hearing played in the guilty verdict reached by the jury at the first trial. In that connection, we should say that we understand the references in the judgments in D'Orta-Ekenaike to the undesirability of re-opening controversies already determined, and to the need for 'finality of decision', to be concerned not simply with decisions that are ultimately conclusive of the issue between the parties (in that case, the second trial) but rather with the undesirability of permitting a party to re-open any decision of a court except through the appellate process and in the other 'narrowly defined circumstances' referred to by the High Court.
90 In respect of the first claim, for similar reasons to those applying to the second claim, we do not consider it can be said that the formulation of the appellants' claim for damages was a matter that plainly fell within the immunity.
91 It is not difficult to envisage situations where the manner in which a case is pleaded would affect the way the case was conducted in court, so that any claim that an advocate was negligent in failing to plead the case differently would involve re-opening the earlier decision in an endeavour to prove that the result would have been different.
92 Where, however, it is alleged that the advocate advised the client to pursue, and pleaded on the client's behalf, a cause of action or a head of damage which as a matter of law was doomed to failure - and which duly failed - it is not so easy to see that a claim for negligence against the advocate involves the re-opening of the original controversy or touches upon matters which fall within the principles identified by the High Court as underlying the immunity.
93 We therefore consider, with respect, that the learned master erred in concluding that the claims should be struck out at an interlocutory level as unarguable. In our view, the claims are not unarguable and must be allowed to go to trial. We would uphold grounds 2.3 and 3 of the grounds of appeal.
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94 In the light of that conclusion, it is not essential to deal with the specific question of the application of the immunity to the appellants' claims so far as they are made under s 10 of the Fair Trading Act, but it seems to us appropriate to say something about it. Itcan be dealt with briefly.
95 Although, in its terms, ground 2.1 of the grounds of appeal complains that the learned master was in error in striking out the claims under the Fair Trading Act in the absence of binding authority justifying that course, we take the ground to be, in effect, a general assertion that the learned master was wrong in law in striking out the claim on the ground that advocate's immunity plainly applied to the claim under the Fair Trading Act. It appears from the submissions of the parties that they too approached it the latter way.
96 The position when a claim against an advocate is framed, not in negligence, but as a breach of the Fair Trading Act of a State or of the Trade Practices Act 1974 (Cth), does not appear to have been squarely considered in Australia. In Boland v Yates Property Corporation Pty Ltd [1999] HCA 64, the High Court concluded that it was unnecessary to consider the immunity issue in the context of a claim under the Trade Practices Act. In Gray v Morris [2004] 2 Qd R 118 [53], the question again did not have to be determined but was regarded as not settled.
97 The questions of how the public policy considerations which ground the immunity are to be reconciled with the operation of s 10 of the Fair Trading Act, and the scope of any immunity which limits the operation of the Fair Trading Act as it applies to the provision of legal services, therefore still await determination.
98 The application of the immunity to the Fair Trading Act is not, in our view, a matter appropriately to be determined on a pleading summons. It involves a novel question of law that is properly left to be determined at trial. It is, moreover, a matter which, if it arises on the facts as found, is properly to be determined in the light of the findings as the precise nature of any misleading and deceptive conduct engaged in by the respondent.
99 We should add that it appears the trial of the action will not be substantially extended by the claim under the Fair Trading Act.
100 We consider that ground 2.1 of the grounds of appeal is made out.
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The respondent's notice of contention
101 The respondent filed a notice of contention in which he sought to uphold the judgment of the learned master on the alternative ground that the pleading of the first claim and the second claim was in each case an abuse of process, claims to the same effect having been previously struck out by the learned master on the ground of advocate's immunity and there having been no appeal from that decision.
102 While there are undoubtedly similarities between the claims previously struck out and those now sought to be advanced, we are not satisfied that the present claims are an abuse of process. A claim to a similar effect to the first claim was previously framed in negligence. It is now made under s 10 of the Fair Trading Act. The second claim is made in negligence and under s 10 of the Fair Trading Act, and is pleaded in different terms to an earlier claim in negligence in respect of advice on the compromise of the appeal. The earlier plea focused on the alleged failure of the respondent to warn the appellants that certain of the damages awards were unsustainable on appeal and should be conceded, and that the appellants should seek to compromise the proceedings. The appellants claimed damages for the wasted expense in resisting the appeal on those damages issues and the loss of the opportunity 'to compromise the appeal on terms generally favourable to the appellants'. There was no reference to the offer of settlement by Warwick. In the current statement of claim, however, the alleged failure to advise the appellants that their interests would be best served by accepting Warwick's offer is the central part of the appellants' claim against the respondent.
103 We do not consider that the present claims are precluded by the earlier decision of the learned master. It follows that we do not consider the grounds in the notice of contention have been made out.
Conclusion
104 It was for those reasons that we granted leave to appeal and allowed the appeal.
105 In the circumstances, it was unnecessary to consider the other grounds of appeal.
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