Braslin v Geason
[2004] TASSC 125
•11 November 2004
[2004] TASSC 125
CITATION: Braslin v Geason [2004] TASSC 125
PARTIES: BRASLIN, Leslie R
v
GEASON, Damien
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 361/2004
DELIVERED ON: 11 November 2004
DELIVERED AT: Hobart
HEARING DATES: 4 November 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Professions and trades - Lawyers – Counsel and client – Negligence – Immunity from suit.
Giannarelli v Wraith (1988) 165 CLR 543 applied.
Aust Dig Professions and Trades [71]
REPRESENTATION:
Counsel:
Plaintiff: In person
Defendant: P A Warmbrunn
Solicitors:
Plaintiff: In person
Defendant: Butler McIntyre & Butler
Judgment Number: [2004] TASSC 125
Number of Paragraphs: 8
Serial No 125/2004
File No 361/2004
LESLIE R BRASLIN v DAMIEN GEASON
REASONS FOR DECISION MASTER S J HOLT
11 NOVEMBER 2004
The plaintiff, who is self-represented, has commenced an action for damages for negligence against his legal counsel arising out of the conduct of criminal proceedings. According to the statement of claim and a proposed amended statement of claim which the plaintiff seeks leave to file and serve, the defendant during the course of committal proceedings before a magistrate failed to cross-examine satisfactorily; present relevant evidence and make appropriate submissions that the plaintiff ought not be committed for trial. It is alleged that during the course of the trial which then took place in the Supreme Court the defendant failed to conduct the case competently and in particular failed to adduce relevant evidence and to make use of prior inconsistent statements when cross-examining a number of the prosecution witnesses. The plaintiff says that the defendant’s negligence resulted in a conviction and sentence of imprisonment and that accordingly he has suffered damage.
I was informed by the plaintiff that following his conviction and sentence he unsuccessfully appealed to the Court of Criminal Appeal. Plainly the action is liable to be permanently stayed or struck out as an abuse of process. Public policy prohibits “the use of civil actions to initiate a collateral attack on a final decision … which has been made by a criminal court of competent jurisdiction”: Hunter v Chief Constable [1982] AC 529 at 544.
Counsel for the defendant, however, did not rely on the abuse of process point, but instead submitted that the action could not succeed because in Australia the common law still is that a barrister or solicitor acting as advocate is immune from liability for in court negligence and negligence in the undertaking of work intimately connected with the conduct of the case in court.
The leading case in Australia is Giannarelli v Wraith (1988) 165 CLR 543. That case turned on the barrister’s immunity rather than the abuse of process point as there the plaintiffs had succeeded in the High Court in having a decision of the Victorian Court of Criminal Appeal upholding some criminal convictions reversed. There the plaintiffs following their success in the High Court sued for damages alleging that the barrister who had represented them in committal proceedings had been negligent; the Queen’s Counsel who represented them at the trial had been negligent and another Queen’s Counsel who represented them in the proceedings before the Victorian Court of Criminal Appeal had also been negligent. A decision in favour of the plaintiffs in the civil action would not have been inconsistent with the ultimate outcome of the criminal proceedings as the convictions had been set aside. The point which the High Court had to consider was whether or not barristers had immunity from liability for negligence in court or in undertaking work intimately connected with the conduct of a court case. The court, following the decision in Rondel v Worsley (1969) 1 AC 191, confirmed the existence of the immunity on public policy grounds.
Of particular relevance to this case is the aspect of public policy which prohibits collateral attacks on court decisions by means of actions against counsel. The judgment of Wilson J in Giannarelli at 573 – 574 explains the point with considerable force. His Honour said:
“As I have said, the public policy reflected in the immunity from suit for defamation, which is conferred upon participants in the legal process, extends in an analogous way to protect counsel from liability for in-court negligence. It would be odd, to say the least, if counsel was immune from liability for malicious in-court slander yet liable for the negligent conduct of a case in court.
In addition to the foregoing matters, there are the many difficulties associated with relitigation, which would be a common feature of trials of actions against counsel. These difficulties provide a powerful argument for counsel’s immunity. The situation is not to be compared with a case where an appeal is allowed, a decision set aside and a re-trial ordered. Such a course of events merely portrays the normal course of appellate review. It is altogether different where a disappointed litigant institutes a civil proceeding in a court of co-ordinate jurisdiction with a view to proving that the original decision was wrong by reason of counsel’s negligence. If the negligence action succeeds, then the original decision, notwithstanding that it may have been affirmed on appeal, is necessarily tarnished by the later inconsistent decision. Yet nothing can correct the record or interfere with the original judgment. Furthermore, the result will have come about without the successful party to the original action being a party to the negligence action, which will fall to be determined in his or her absence. These situations clearly have a capacity to bring the administration of justice into disrepute. See Rondel, particularly at pp 249-251.
The problem would be exacerbated in the case of a client who claimed to have been wrongly convicted by a jury of a criminal offence by reason of counsel’s negligence in conducting the trial. The issue of causation in the negligence action where questions of fact for a jury were involved could be a mind-boggling exercise, piling ‘speculation upon speculation’ (Rondel, at p250). The issue would have to be joined without any evidence from those most closely connected with it, the judge and members of the jury. Public policy would not permit them to be called as witnesses. There are other fundamental problems. Suppose a person is convicted, the jury being satisfied of guilt beyond a reasonable doubt. All avenues of appeal are pursued without success. The convicted person then institutes an action for negligence against the defence counsel, assuming the onus of proof on the balance of probabilities. If the action succeeds but the conviction remains, public confidence in the integrity of the law must be seriously and adversely affected. Even if a way is found to have the conviction set aside notwithstanding the earlier unsuccessful appeals, the end result is that the civil action is converted into a de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeals. It may be noted that there is a long-standing policy of the common law against allowing the re-trial of criminal cases by collateral means: see the discussion by Harding, ‘Recent Cases, Rondel v Worsley’, Western Australian Law Review, Vol 8 (1968) 242 at pp248-249.
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. It is this confidence which would be most at risk if the appellants’ case were to succeed.”
In Boland v Yates Property Corp Pty Ltd (2000) 74 ALJR 209, Kirby J at par150 considered that the immunity was confined as follows:
“… both as a matter of the legal authority for which in this country Giannarelli stands, and as a matter of legal principle and policy, I would confine the scope of the legal immunity from suit to immunity for a legal practitioner advocate in respect of in-court conduct during proceedings before a court or like tribunal.”
Even strictly confined, however, the decision in Giannarelli precludes the plaintiff here from recovering damages. On the face of the plaintiff’s allegations the damage was done in court whilst the defendant was acting as a barrister.
In England, although the barrister’s immunity no longer exists there, the public policy which prevents as an abuse of process, collateral attacks on criminal convictions which have not been set aside continues with the same force and with the same result, namely, that such actions are not maintainable: Arthur J S Hall & Co v Simons (2002) 1 AC 615 at 679, 684, 706, 715, 730 and 753.
The result is that even if the plaintiff can prove all the facts which he alleges in his statement of claim (or his proposed amended statement of claim) he will not be entitled to any relief because of the barristers immunity (and as I observed earlier because in any event his action is a collateral attack on a criminal conviction which has not been set aside and so is an abuse of process). This being so he has no cause of action and no chance of success. The appropriate orders are:
1The plaintiff’s application for leave to amend the statement of claim is dismissed.
2The plaintiff’s existing statement of claim is struck out, the action is dismissed and judgment is to be entered accordingly.
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