CORP -v- ROBINSON [2012] WASC 490

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 490
Case No:	CIV:3014/2011	Heard:	16 NOVEMBER 2012
Coram:	KENNETH MARTIN J	Delivered:	25/01/13
No of pages:	38	Judgment Part:	1 of 1
Result:	Judgment for defendants
Category:	B
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Parties:	STUART ADRIAN CORP HAYDN ROSS ROBINSON JAMES LINDSAY GLISSAN QC JAMES WHYTE
Catchwords:	Practice and procedure Defendants' summary judgment and strike out applications Barristers Solicitor Advocates' immunity Non-attendance at concluding days of criminal trial Conviction by jury Professional negligence Causation Damage Alleged loss of chance of acquittal on all criminal charges Intermediate result Challenge to finality of intermediate decision Abuse of process
Legislation:	Nil
Case References:	Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 Arthur J S Hall & Co v Simons [1999] 3 WLR 873 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Fergusson v Lewis (1879) 14 LJ 700 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 Goddard Elliott v Fritsch [2012] VSC 87 Mule v The Queen [2005] HCA 49 Smith v The Queen [2008] WASCA 128 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CORP -v- ROBINSON [2012] WASC 490 CORAM : KENNETH MARTIN J HEARD : 16 NOVEMBER 2012 DELIVERED : 25 JANUARY 2013 FILE NO/S : CIV 3014 of 2011 BETWEEN : STUART ADRIAN CORP

Plaintiff

AND

HAYDN ROSS ROBINSON

First Defendant

JAMES LINDSAY GLISSAN QC

Second Defendant

JAMES WHYTE

Third Defendant

Catchwords:

Practice and procedure - Defendants' summary judgment and strike out applications - Barristers - Solicitor - Advocates' immunity - Non-attendance at concluding days of criminal trial - Conviction by jury - Professional negligence - Causation - Damage - Alleged loss of chance of acquittal on all criminal charges - Intermediate result - Challenge to finality of intermediate decision - Abuse of process

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Legislation:

Nil

Result:

Judgment for defendants

Category: B

Representation:

Counsel:

Plaintiff : Mr D Grace QC & Mr M Bruce

First Defendant : Mr S F Popperwell

Second Defendant : Mr S M Davies SC & Ms K R Lendich

Third Defendant : Mr S Vandongen SC

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Pynt & Partners

Second Defendant : Ashurst Australia

Third Defendant : DLA Piper Australia

(Page 3)

Case(s) referred to in judgment(s):

Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Arthur J S Hall & Co v Simons [1999] 3 WLR 873
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Fergusson v Lewis (1879) 14 LJ 700
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Goddard Elliott v Fritsch [2012] VSC 87
Mule v The Queen [2005] HCA 49
Smith v The Queen [2008] WASCA 128
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

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1 KENNETH MARTIN J: All three defendants apply to have the actions brought against them summarily dismissed under the Rules of theSupreme Court 1971 (WA) (RSC) O 16 on the basis that advocates' immunity renders the plaintiff's (Mr Corp's) claims wholly untenable. They submit the immunity is a complete answer to all Mr Corp's grievances. Alternatively, each defendant seeks under RSC O 20 r 19 to strike out all or part of Mr Corp's amended statement of claim of 10 September 2012 (ASOC), either on the basis the amended pleading fails to disclose a reasonable cause of action or on the basis it may prejudice, embarrass or delay the fair trial of the action. An extension of time is sought by each of the defendants to advance their applications under RSC O 16 r 1(1), as leave to bring the application is required because the 21-day period to bring such applications has expired. As I shall explain, in each case leave should be granted to pursue each application.

2 Mr Corp's action is against the three legal practitioners (senior and junior counsel and Mr Corp's instructing solicitor) who conducted his defence during his criminal trial in the District Court of Western Australia before Fenbury DCJ and a jury over approximately nine weeks between August and October 2007. Mr Corp's legal team comprised the first defendant, Mr Robinson, as the instructing solicitor. On Mr Corp's instructions Mr Robinson briefed the second defendant, Mr Glissan QC, as senior counsel and the third defendant, Mr Whyte, as his junior.

3 During trial Mr Robinson at times also appeared in court as counsel for Mr Corp, either as second counsel assisting Mr Glissan QC or, on the last three concluding days of the trial, by himself.

4 The focus of Mr Corp's grievance, as expressed in his ASOC, is primarily against the barristers, by reason of their non-attendances at Mr Corp's trial between Tuesday 2 October and Thursday 4 October 2007 (at which times Mr Robinson appeared alone as the counsel for Mr Corp).

5 On Thursday 4 October 2007 the jury returned verdicts of guilty against Mr Corp and the co-accused with whom he had stood trial jointly; Mr Brian Millwood Smith. Both men had been charged by indictment with 48 counts against Commonwealth laws including the Corporations Law and the Australian Securities and Investments Commission Act 2001 (Cth). Mr Corp was acquitted on six of 21 counts against him, but was convicted on the other 15. A week later the trial judge sentenced Mr Smith and Mr Corp to periods of imprisonment commencing 11 October 2007.

(Page 5)

6 Mr Corp's cause of action against Mr Glissan QC and Mr Whyte is formulated entirely in tort, upon alleged breaches of a duty of care said to be owed by them to Mr Corp. This alleged duty is formulated in somewhat unorthodox terms. It is expressed as a duty to take all reasonable steps to attend trial, rather than the more usually seen duty to exhibit the level of skill and competence that an ordinary skilled person exercising or professing to have the special skill, would exhibit.

7 The grievances against Mr Robinson are pleaded in contract (for breach of retainer) as well as in tort (for breach of a duty of care). The grievances against Mr Robinson proceed upon the basis of an alleged alternative factual averment (denied by Mr Robinson and Mr Corp) that Mr Robinson authorised the barristers to absent themselves from the trial on the relevant days: see ASOC pars 25 and 28C.

8 Mr Corp's first statement of claim of 16 January 2012 had attempted to raise contractual causes of action against Mr Glissan QC and Mr Whyte. Contractual contentions against these barristers were abandoned in amendments carried by the ASOC of 10 September 2012. The alteration in Mr Corp's pleading is relevant to the defendants' applications for leave to extend the time to bring their respective applications.

Solicitors' position: Mr Robinson

9 Distinct considerations arise on the application relating to Mr Robinson. It is necessary to note:

(a) Unlike the pleading against the barristers, there are two causes of action, in contract and in tort, asserted against Mr Robinson. Damage is the 'gist' of a cause of action in the tort of negligence. But for breach of retainer, the cause of action is established where breach is proved, although the breach may only give rise to nominal damages. This is a consideration to be borne in mind on the alternative factual case brought against Mr Robinson: see

Talbot & Olivier (a firm) v Witcombe

[2006] WASCA 87; (2006) 32 WAR 179, 194 [53] (Pullin JA) and 191 [37] (Steytler P). Mr Corp's primary position by his ASOC is that Mr Robinson did not authorise the barristers to absent themselves from the trial. Only if it is found as a fact that Mr Robinson did in fact authorise the barristers not to attend on the relevant days, is it then (alternatively) contended by Mr Corp that Mr Robinson was in breach of his contract of retainer by such action (which Mr Corp contends should not have occurred without his approval).

(Page 6)

Alternatively, Mr Corp contends that while the barristers were absent, ameliorative steps should have been taken by Mr Robinson such as seeking an adjournment, or having someone seek an adjournment of the criminal trial on Tuesday 2 October 2007.

(b) Mr Corp raises no grievance against Mr Robinson concerning his representation as counsel for Mr Corp in the concluding phases of the criminal trial on 28 September 2007 and between Tuesday 2 October and Thursday 4 October 2007. On Friday 28 September 2007 Mr Robinson acted as junior counsel appearing at trial with Mr Glissan QC. Around this time, Mr Whyte was en route from Perth via Sydney to the Whitsunday Islands (off the coast of Northern Queensland) for the West Australian long weekend. Mr Glissan QC joined Mr Whyte on Saturday 29 September 2007. Mr Glissan QC and Mr Whyte were presenting a paper that weekend at a legal education conference held on Hayman Island. Mr Glissan QC and Mr Whyte were booked to return to Perth on Monday 1 October 2007. But their return flight from Hamilton Island to Sydney was delayed. Only Mr Robinson appeared as counsel for Mr Corp between 2 and 4 October 2007.

(c) Regarding the allegation of a breach of the duty of care owed by Mr Robinson, the fallback factual premise of the ASOC contends Mr Robinson authorised Mr Glissan QC and Mr Whyte to absent themselves from the trial on the days at issue. Implicit in this grievance is a contention that a decision about the barristers' attendance was exclusively Mr Corp's. That unqualified proposition requires examination.

(d) By his affidavit in support of this application (see affidavit of 8 October 2012), Mr Robinson swears that he did not authorise Mr Glissan QC or Mr Whyte to absent themselves from the trial on the days at issue (see par 11). Oral submissions on the three defendants' applications to strike out or for summary judgment, proceed on the basis that the second and third defendants pursue their applications accepting the facts contended by Mr Corp in his statement of claim against them. Embodied in that premise is an acceptance, for present purposes, of Mr Robinson's sworn averment (Mr Corp's primary pleaded case) that he did not authorise the two barristers to absent themselves from attending trial on the days at issue. The matter was argued on this basis.

(Page 7)

(e) The breach of retainer cause of action against Mr Robinson (ASOC par 26) and the alleged breaches of the duties of care against Mr Glissan QC, Mr Whyte and Mr Robinson, are all pleaded (ASOC par 29) to have resulted in the same alleged loss and damage to Mr Corp.

10 Since Mr Corp's main grievance is raised against the second and third defendants, regarding alleged breaches of their duties of care to Mr Corp, it is logical to commence an assessment of these applications by first considering the positions of the two barristers. The causes of action (in contract and tort) against Mr Robinson are essentially fallback contentions, run on the basis of the alternative factual premise, primarily denied by Mr Corp and of course, by Mr Robinson.

11 The alleged breaches of the asserted duty to take reasonable steps to attend Mr Corp's trial as raised against Mr Glissan QC and Mr Whyte are formulated by reference to the failure of the barristers to attend as counsel at Mr Corp's trial - in Mr Glissan QC's case, on three hearing days (Tuesday 2 October to Thursday 4 October 2007; ASOC par 28) and in Mr Whyte's case, across the same days and also Friday 28 September 2007 (see ASOC par 28A).

12 On Thursday 4 October 2007, Mr Corp's jury returned verdicts convicting him on 15 counts of breaches against Commonwealth laws. He was sentenced a week later by the trial judge. Mr Corp's criminal trial spanned almost nine weeks. He stood trial with a co-accused, Mr Brian Millwood Smith. Mr Smith was represented by Mr Shirrefs SC at the trial. Mr Corp's barristers were based in New South Wales and travelled back and forth to Perth from Sydney during the trial. Mr Robinson's legal practice was based in Perth.

13 For detail about the criminal trial, see the reasons for decision of the Court of Appeal provided by Buss and Miller JJA and Murray AJA: see Smith v The Queen [2008] WASCA 128. That appeal was a joint appeal by Mr Smith and Mr Corp, with each again represented by senior counsel, heard between 6 and 8 May 2008. The Court of Appeal's reasons were delivered on 17 June 2008.

14 On 11 October 2007, Mr Corp and Mr Smith were sentenced by Fenbury DCJ to custodial terms of 3 years' imprisonment commencing from then, but with a recognisance release order taking effect after 16 months, in the sum of $20,000.

(Page 8)

15 Mr Corp and Mr Smith filed separate appeals against their convictions and sentences. The appeals were subsequently heard together in the Court of Appeal. Mr Corp and Mr Smith were successful on their appeals in having all convictions quashed. They succeeded, essentially, by showing two errors in the charge to the jury by the trial judge. Some convictions were quashed with the Court of Appeal also entering verdicts of acquittal. However, in respect of a number of counts the convictions were quashed on the basis there should be retrials. In Mr Corp's case there was to be a retrial on 10 of the counts. In the end, however, the Commonwealth did not proceed with retrials against Mr Corp or Mr Smith, so all convictions remained quashed.

Mr Corp's pleaded grievances as to causation and damage against the defendants by reason of alleged breaches of duty

16 There is no controversy, factually, that Mr Glissan QC and Mr Whyte did not attend at Mr Corp's trial on the three (or in Mr Whyte's case, on four) days as alleged, in the concluding phases of the joint criminal trial in the District Court of Western Australia.

17 On Friday 28 September 2007, as Mr Shirrefs SC (senior counsel for Mr Smith) was completing his closing address to the jury and when the trial judge began his charge to the jury for a short time, Mr Glissan QC was in attendance with Mr Robinson appearing as his junior. Mr Whyte was absent, en route to the Whitsunday Islands.

18 Between Tuesday 2 October and Thursday 4 October 2007, the trial judge completed his charge to the jury, the jury retired and then delivered its verdicts on 4 October 2007. During this period only Mr Robinson appeared at court as counsel for Mr Corp. Mr Glissan QC and Mr Whyte are alleged to have breached a duty of care to Mr Corp by not attending court at this time. In a tortious claim it is essential to know what, if anything, is said to have causatively resulted from the alleged wrongful act or omission complained of (ie the barristers' non-attendance at court). It is also necessary to have an understanding of the nature of the damage, if any, sustained. Factually, these are interrelated questions.

19 Mr Corp's ASOC briefly addresses the critical issues of causation and damage at par 29:

By reason of the breach of duty by each of Mr Glissan, Mr Whyte and Mr Robinson [Mr Corp] suffered loss and damage.

(Page 9)

20 At this point there presents a startling absence of material facts in the ASOC to show a link between the breaches of duty contended for against all defendants and any resultant alleged loss and damage to Mr Corp. That deficiency alone would sustain each of the defendants' applications to strike out the tortious aspect of the ASOC as failing to disclose a reasonable cause of action, or as embarrassing. But what are called particulars to par 29 (which appear to comprise what would be material facts concerning causation and damage), render some insight to the true grievance of Mr Corp. Particulars A and B to par 29 say:

A. The plaintiff will say at trial that he lost the chance of being acquitted of all charges upon the indictment by reason of Mr Glissan and Mr Whyte failing to attend and thereby ensuring that the directions given to the jury by the Trial judge [were] adequate and according to law.

B. As a result of his convictions at trial the plaintiff was incarcerated for the period 12 October 2007 to 17 June 2008, when his convictions were set aside on appeal. The plaintiff claims general damages for the loss of freedom and association and the contempt and ridicule caused by his convictions at first instance and his incarceration arising therefrom.

C. …

D. …

21 By par 30 of the ASOC Mr Corp also seeks exemplary damages against the barristers for their alleged 'contumelious disregard of [his] rights'.

22 I make the following preliminary observations:

(a) The wrong Mr Corp complains of, by the two barristers being absent on the days of trial at issue, looks essentially to be a contention that their absence lost him a chance of being acquitted of all charges. But on the face of it a mere absence from the trial by the barristers, without more, could not (particularly in present circumstances where it is not disputed that Mr Robinson acted as counsel representing Mr Corp on those days), be capable of generating, as a matter of logic, the causative consequence that Mr Corp was convicted of certain charges, or lost the chance to be acquitted of all charges. It is necessary to enquire further as to why it is said the barristers' hypothesised presence at court would have brought about the hypothetical acquittal outcome, or the chance of it coming to pass.

(Page 10)

(b) An answer to that enquiry emerges only in the concluding lines of par A of the particulars to par 29, where the missing link between the hypothetical presence of counsel and hypothetical acquittal on all charges, is revealed. This link is said to be some directions that would or could have been given by the trial judge in his charge to the jury.

(c) From (a) and (b) above, the true character of Mr Corp's grievance now emerges as being that the hypothetical attendance by the barristers (in lieu of Mr Robinson as counsel) would have ensured that the directions given to the jury were 'adequate and according to law'. Implicit in this is that the directions given to the jury by the trial judge were not adequate (although this is not explained in the particulars). Also implicit is the contention that a hypothetical attendance by the barristers would have led to a different charge to the jury by the trial judge, and that this altered charge would more likely have led to verdicts of complete acquittal for Mr Corp, rather than his actual mixed result from the jury (conviction on 15 counts and acquittal on six counts).

(d) Analysing Mr Corp's particulars to ASOC par 29, the character of his alleged causative loss and damage can be traced back to his underlying premise that the result of his trial may have been different in his favour (his terminology being 'lost a chance') had the two barristers appeared for him as counsel on the days at issue, rather than Mr Robinson.

23 As to damage, ASOC par 29 particulars C and D (and par 30 as to exemplary damages) seek to recover Mr Corp's out-of-pocket expenses associated with pursuing his appeal to the Court of Appeal and an allowance for an asserted loss of income earning capacity as regards impairment of his employment prospects, by reason of his convictions and his incarceration in a period until his convictions were set aside on appeal.

Mr Corp's submissions

24 When this application was argued senior counsel for Mr Corp, Mr Grace QC, in resisting the strike-out and summary dismissal arguments, was at pains to stress that the character of the grievances raised by Mr Corp against Mr Glissan QC and Mr Whyte needed to be properly evaluated within the framework of a trial, rather than disposed of summarily. Existence of factual contention over whether or not Mr Robinson had authorised the two barristers not to attend the trial on the days in issue, was submitted as in its own right a sufficient reason to

(Page 11)

support the action proceeding to a trial, rather than being dismissed summarily.

25 Fundamentally, Mr Grace QC submitted that this was not a case where Mr Corp's grievances against the barristers were capable of being assessed as in-court work done by an advocate or advocates (which clearly would be covered and protected by the immunity principle). Non-attendances at Mr Corp's criminal trial, by reason of being present in another State, could hardly be assessed as work done by barristers in court, or as work closely connected to in-court work, it was said. Hence this action was a situation (well outside the immunity principle) of bare failures to show up at court on the days required.

26 Mr Grace QC accepted, as is obvious, that if Mr Glissan QC and Mr Whyte had been present at court on the days in issue, and being present had negligently failed to raise a proper objection, or draw to the trial judge's attention a concern over the content of the trial judge's charge to the jury, in that hypothetical situation the advocates' immunity principle would apply to bar any claim in 'negligence or otherwise': D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1[85].

27 However, Mr Grace QC argued that the present scenario of barristers being absent from court whilst located on an island resort out of State was outside the scope of the D'Orta immunity, or at least was a scenario in which an evaluation needed to be made within the framework of a trial. A summary determination as to whether advocates' immunity thwarted these actions, would be incompatible with the high levels of caution a court must exhibit before reaching a conclusion that a summary determination is appropriate: see Le Miere J in Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [113]. This was not a case where it could be said safely Mr Corp's grievances were so flawed that his actions against the barristers could be assessed as unarguable, or as doomed to fail at a trial. A summary determination would wrongly deprive Mr Corp of a proper opportunity to present his arguments against all defendants at a trial (although I note D'Orta itself was an instance of the advocates' immunity principle applied summarily: see D'Orta [12]). Here, there was also no statutory cause of action raised in the ASOC against the defendants such as was seen in Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 [98] (Steytler P & Newnes AJA). (In that appeal there was concern raised about a summary determination invoking the immunity involving a challenge against an unaccepted settlement proposal

(Page 12)

arising in the context of a pending appeal against a first instance judgment, ultimately reduced in magnitude on the appeal.)

28 The defendants all submit that Mr Corp's grievances at root seek to take issue with the jury's verdicts against him at his trial. Furthermore, Mr Corp's complaint, correctly analysed and understood, is said to be not so much over the barristers' non-attendances, as it is about a different hypothetical charge to the jury by the trial judge. This is then tacked on to some impermissible speculation over whether or not a different charge by the trial judge could ever possibly have made any difference against the unfavourable verdicts against Mr Corp.

29 The defendants say that, correctly analysed, Mr Corp is impermissibly challenging the finality of what was explained in D'Orta as a criminal trial's intermediate result (see reasons of Gleeson CJ, Gummow, Hayne and Heydon JJ at [66] and [68]) and that this terminal vice is readily identified and hence well capable of being safely disposed of summarily.

30 The defendants place particular reliance upon the observations of the plurality in D'Orta, rejecting the existence of an exception allowing challenges against the finality of intermediate results: see D'Orta [45], [73], [80], [81] - [84]. At [70] the plurality said:

… And in every one of these cases, the client would say that, but for the advocate's conduct, there would have been a different result. In particular, leaving cases of wasted costs aside, the client wishes to assert that, if the case had been prepared and presented properly, a different final, or intermediate, result would have been reached. And yet the judicial system has arrived at the result it did. The consequences that have befallen the client are consequences flowing from what, by hypothesis, is a

lawful

result. So, to take the present case, the imprisonment of which the applicant seeks to complain is

lawful

imprisonment.

31 At this point it is necessary to provide some further background concerning Mr Corp's successful appeal and contentions in his ASOC. The appeal judgment Smith v The Queen containing the reasons for decision of the three members of the appeal court, spans 120 pages. References to those reasons in what follows is necessarily truncated and of course, oversimplified. The appeal reasons need to be studied carefully in full content to gain a proper appreciation of their moment and to fully comprehend the underlying arguments and issues in these two appeals. Proceeding on that basis, I turn first to the evidence adduced on these applications.

(Page 13)

Evidence adduced on these applications

32 Mr Robinson relied upon his affidavit sworn in support of his application seeking to strike out the ASOC and for a defendants' summary judgment against Mr Corp (see affidavit of Mr Robinson sworn 8 October 2012). The content of that affidavit is mostly uncontroversial, save for the last sentence of par 11, where Mr Robinson says:

I did not authorise Glissan and Whyte to absent themselves from the trial, but the circumstances that led to their non-attendance are not relevant to my applications.

33 Mr Robinson (par 10) relates that the criminal trial commenced on 6 August 2007 and that Mr Corp's co-accused, Mr Smith, was also represented by senior counsel, namely Mr Stephen Shirrefs SC. The trial was prosecuted by Mr Hall SC (as his Honour then was). Commencing at par 11 Mr Robinson relates:

11. On Tuesday 2 October 2007 the trial resumed after a long weekend in Western Australia. I attended the trial and appeared as counsel for Corp and continued to do so until the conclusion of the trial. I did so because Glissan and Whyte did not attend. I agree with the denials pleaded in paragraphs 25 and 28C of the Amended Statement of Claim; I did not authorise Glissan and Whyte to absent themselves from the trial, but the circumstances that led to their non-attendance are not relevant to my applications.

12. On 4 October 2007 the jury returned their verdicts, convicting Corp of 15 charges and acquitting him of 6 charges.

13. Corp appealed. His appeal was successful in that convictions on 5 charges were quashed and verdicts of acquittal entered; convictions on the remaining 10 charges were also quashed and a retrial was ordered. The prosecution did not proceed with the retrial.

34 Mr Robinson, by par 17 of his defence, invokes the advocates' immunity principle against Mr Corp's claims. Paragraph 17 is in these terms:

Further, and in the alternative if, which is denied, the first defendant authorised the second defendant and third defendant to absent themselves from the trial as pleaded in paragraph 25 of the Statement of Claim, the first defendant is immune from suit in respect of the alleged breach.

35 By Mr Robinson's pleaded defence (which was not amended after Mr Corp's ASOC of 10 September 2012), he also avers:
(Page 14)

15.1 On 1 October 2007 the second defendant by telephone informed the first defendant that the second defendant and third defendant had flight trouble and would not be in Perth until Tuesday (2 October 2007) pm.

15.2 On 2 October 2007 the second defendant by telephone informed the first defendant the second defendant did not think he could contribute anything and wanted to save the plaintiff's money by not further attending the trial.

15.3 In response the first defendant said this was the second defendant's call and the plaintiff was prepared to pay the money for the second defendant to attend.

15.4 …

15.5 On 5 October 2007 the first defendant on instructions from the plaintiff terminated the said Standard Costs Agreement.

36 I note the affirmative plea at subpar 15.3 concerning non-attendance being Mr Glissan QC's 'call'.

The barristers' evidence

37 Mr Glissan QC relied upon two affidavits sworn by his instructing solicitor, Mr Peter Jeffrey Ward, affirmed respectively on 24 September and 5 October 2012.

38 The first affidavit concerns circumstances which led to a belated decision to pursue a defendants' RSC O 16 summary judgment application in the wake of the amendments to the ASOC of 10 September 2012. The RSC O 16 application followed on 24 September 2012. Bearing in mind late amendments to the ASOC which included deleting the formerly pleaded contractual causes of action against the barristers, I am of the view that leave should be granted to all the defendants to allow them to pursue the present RSC O 16 applications. First, delay in making the applications (exceeding 21 days) is sufficiently explained by reference to the late alteration in the claim by Mr Corp (reflected in his ASOC). Second, the plenary immunity defence the defendants now raise is a discrete point and may have the effect of being decisive if found in the defendants' favour, thereby delivering a significant saving of legal costs by the parties and of the court's time by avoiding a trial.

39 Mr Ward's second affidavit sets out a few uncontroversial facts pursuant to which his RSC O 16 application is advanced, essentially explaining Mr Glissan QC's engagement as senior counsel for Mr Corp's criminal trial, which ran from 6 August 2007 until October 2007.

(Page 15)

40 Mr Glissan QC accepts he did not return to Perth for the resumption of Mr Corp's trial over 2, 3 or 4 October 2007: see par 13(c) of his defence of 16 March 2012. Mr Glissan QC then pleads advocates' immunity at par 28(c) in his defence.

41 Mr Glissan QC's pleaded defence was not amended in the wake of the ASOC. Nevertheless, he pleads affirmatively, as regards his non-attendance as counsel between 2 and 4 October 2007, that:

13(d) … his [Mr Glissan QC's] non-attendance on those days was in consequence of instructions given to him by the first defendant following advice given by him in a telephone conference with the first and third defendants in light of delay to flight JQ 489 from Hamilton Island to Sydney on 1 October 2007, in consequence of which delay the second defendant was unable to make scheduled connecting flight to Perth to attend at the trial on 2 October 2007; and

13(e) the advice given by [him] referred to in paragraph 13(d) above was given in exercise of [his] forensic judgment as Senior Counsel, having regard to:

(i) the stage at which the trial was to resume on [2] October 2007, namely that all Counsel had completed their addresses to the jury and had made submission to the trial judge on matters to be addressed by the trial judge in charging the jury, such that all that remained of the trial was for the judge to deliver the charge and for the jury to retire to consider its verdict;

(ii) the knowledge, skill, experience and suitability of [Mr Robinson] to appear as Counsel for the remainder of the trial;

(iii) the cost to the plaintiff of the second defendant attending for the remainder of the trial; and

(iv) the relative benefit to [Mr Corp] in [Mr Glissan QC] attending only after the judge's charge to the jury, given the flight delays.

(Page 16)

42 On the face of Mr Glissan QC's pleaded defence there arises potential factual dispute over instructions received following his 'advice' to Mr Robinson over the telephone on Monday 1 October 2007. But at the hearing of this application Mr Davies SC made it explicit that the barristers' present applications were to be evaluated on the basis of accepting Mr Corp's pleaded ASOC version of events. Accordingly, Mr Glissan QC and Mr Whyte do not, as regards their non-attendance contend on these applications that their absence arose on the basis of Mr Robinson's instructions to them (Mr Corp's primary pleaded position).

43 The third defendant, Mr Whyte, relied upon an affidavit sworn by his instructing solicitor Mr Richard Edwards, on 24 September 2012. The content of the affidavit is in similar terms to Mr Ward's second affidavit. It also explains the delay in applying for summary judgment in light of the ASOC changes. As I have observed, leave should be granted to all defendants to bring these applications.

44 Mr Whyte's defence likewise invokes advocates' immunity (see par 27.2), admitting that during the period of his retainer with Mr Robinson, Mr Whyte owed Mr Corp a duty of care according to law (see par 27.1) (not the pleaded duty of care as contended for by Mr Corp in ASOC).

45 The admission is made in Mr Whyte's defence at par 16 that he travelled to Sydney (from Perth) on 27 September 2007 and, from there, on to Hayman Island. Mr Whyte pleads at par 18.2 that, on Monday 1 October 2007, he and Mr Glissan QC were booked to travel back to Sydney from Hamilton Island on Jetstar Airways (flight JQ849). From Sydney, Mr Whyte and Mr Glissan QC were then booked to fly back to Perth by Qantas Flight QF583.

46 By his pleaded defence at par 18.3 Mr Whyte avers that upon arrival at Hamilton Island airport (on Monday afternoon 1 October 2007) he was told by an employee of Jetstar that the flight to Sydney had been delayed due to mechanical problems and it was unknown when the flight would arrive (at Hamilton Island).

47 By defence par 18.4 Mr Whyte pleads that on 1 October 2007 he and Mr Glissan QC telephoned Mr Robinson (in Perth) and, among other things, 'discussed the situation with Mr Robinson' (defence par 18.4.1).

48 Mr Whyte pleads (par 18.4.2) that Mr Glissan QC and he 'were instructed that Mr Robinson would appear as counsel at the hearing on the basis that Mr Whyte and Mr Glissan QC assisted Mr Robinson by

(Page 17)

providing him with a note of the matters to be addressed at the hearing' (my emphasis). (Bearing in mind the concessions, I do not evaluate these applications on the basis of any such instruction.) Mr Whyte also pleads at par 18.4.3 that he was 'instructed that (he) did not need to return to Perth, as Mr Whyte's services were no longer required'. (Again bearing in mind the way the matter was argued, I do not proceed upon that basis.)

49 I have now mentioned specific pleas found in all the defences concerning the invocation by Mr Whyte, Mr Glissan QC and Mr Robinson of advocates' immunity. That is important since it is necessary that the immunity be expressly invoked, (as it clearly has been by all defendants): see plurality in D'Orta [39] in the context of witness immunity.

Mr Corp's evidence on the application

50 A 295 page affidavit by Mr Corp, sworn 12 October 2012, was read and relied upon in opposition to the defendants' applications.

51 Mr Corp's affidavit incorporates as attachment SAC12, the 120 pages of reasons by the Court of Appeal in the decision Smith v The Queen, where Mr Corp was co-appellant with Mr Smith.

52 Because they are conveniently found within Mr Corp's affidavit and are uncontroversial, I will further evaluate the journey from Perth, by Mr Glissan QC and Mr Whyte, to the Whitsunday Islands and the circumstances of their delay in returning to Perth to appear as counsel for Mr Corp in the concluding phases of his trial between Tuesday 2 October and Thursday 4 October 2007.

53 The trial transcript of the joint trial of Mr Corp and Mr Smith (see attachments SAC6 - SAC11 in Mr Corp's affidavit), shows that on Friday 28 September 2007, senior counsel for Mr Smith, Mr Shirrefs SC, began the day resuming his closing address to the jury from the day before.

54 Sometime before 28 September 2007 the address to the jury on behalf of Mr Corp by Mr Glissan QC had finished. Essentially what remained from then to be completed in the trial was Mr Shirrefs SC's address on behalf of the co-accused Mr Smith, followed by the charge to the jury by Fenbury DCJ. Bearing in mind the almost eight weeks of trial which had preceded 28 September 2007, the trial judge's charge was expected (as it did) to exceed a day in duration.

(Page 18)

55 Mr Corp and Mr Smith had been tried together. Both had been represented by senior counsel up to and including Friday 28 September 2007. The charges the subject of the counts on the indictment against both co-accused were effectively counterpart offences against each accused. They mirrored each other as regards alleged infringements against s 232(2) of the Corporations Law for alleged breaches of directors duties by both men, s 243ZF(6) of the Corporations Law as regards financial benefits and votes cast on behalf of Mr Smith and Mr Corp by nominee companies and s 1038(2) and s 1039(1) of the Corporations Law concerning alleged omissions in documents lodged with the Australian Securities Commission and the Australian Stock Exchange in relation to alleged relevant interests by Mr Corp and Mr Smith in shares held in two Western Australian mining companies. There was only one discrete count against Mr Corp (count 35) concerning the Australian Securities and Investments Commission Act and his alleged breach of s 67(1)(a) concerning an alleged destruction of books relating to a matter being investigated. (On count 35 Mr Corp was acquitted by the jury.)

56 For the purposes of a criminal trial before a jury, the overlap in terms of the same statutory provisions said to have been infringed by each accused and the counterpart nature of the charges carries some insight towards arguments that there had been a failure by counsel for Mr Corp to object or make a submission to the trial judge about his charge to the jury. The underlying Commonwealth statutory law was essentially the same for both co-accused. Mr Shirrefs SC and Mr Glissan QC would have been similarly concerned for their respective co-accused in that respect concerning the trial judge's charge on the law.

57 On Friday 28 September 2007 Mr Shirrefs SC's address on behalf of Mr Smith resumed at 10.08 am and extended until 2.46 pm that day (see ts 3259, Mr Corp's affidavit page 46).

58 From 2.46 pm on 28 September 2007, Fenbury DCJ began with brief introductory remarks to the jury. The jury then retired at 2.59 pm that afternoon, to recommence on Tuesday 2 October 2007 at 10.00 am (Monday 1 October 2007 being a public holiday in Western Australia).

59 After the jury retired there was discussion between Mr Hall SC, Mr Shirrefs SC, Mr Glissan QC and the trial judge concerning various matters, including dot point summaries. Mr Glissan QC remarked (see ts 3264, Mr Corp's affidavit page 51):

(Page 19)

The only thing that your Honour raised that causes us any concern is the standard direction of honesty, the

Peters

direction, yes, certainly, but we directed your Honour to the specific (indistinct) about section 232, the (indistinct) argument, and that is the case of

Marchesi

. I will just briefly …

60 At ts 3265 (Mr Corp's affidavit page 52), Mr Glissan QC and Mr Shirrefs SC told the trial judge that their dot point summaries were not yet completed. Mr Glissan QC indicated that now that he had finished his closing address he would email his dot point summary over the weekend; likewise for Mr Shirrefs SC. The trial judge then said:

FENBURY DCJ:

Now, what I would like - I know it's a bit hard to estimate how long one is going to speak as you have all found, but I hope that I do most of mine - and my intention is to knock off most of what I have to say on Tuesday, but deliberately not to finish even if I go much more quickly than I do, and providing it's not really late, I will provide an opportunity then for any debate; if we could have any sort of debate about repairs then and I will try and cure them if needs be before they are sent out at all the following morning but that's just a suggestion …

61 Hence it was clear that, when the trial resumed on Tuesday 2 October 2007, the trial judge would resume his charge to the jury, anticipating that it would take all that day and extend into the next (see ts 3266, Mr Corp's affidavit page 53) allowing time then for debate about 'repairs'.

62 It is not disputed the third defendant Mr Whyte, was not in attendance at court as counsel at any point on Friday 28 September 2007. He had left on 27 September 2007 to travel to Sydney. Senior counsel for Mr Corp, Mr Glissan QC, remained for that day, it would appear, but with Mr Robinson acting as his junior on Friday 28 September 2007 (see ts 3202).

63 A suggestion Mr Corp might have been potentially prejudiced or suffered damage by reason of his junior counsel's absence on that Friday, in a situation where senior counsel and his instructing solicitor were both present is tenuous, more so even when understood that the day was mostly occupied by Mr Shirrefs SC with his closing remarks to the jury on behalf of Mr Corp's co-accused. In my view this aspect of Mr Corp's challenge against Mr Whyte is patently untenable and an unnecessary distraction. Any issues concerning Mr Corp were more than capable of being addressed by senior counsel, Mr Glissan QC, who was in attendance all day, including the 13 minutes between 2.46 pm and 2.59 pm that afternoon when the trial judge briefly began his charge.

(Page 20)

64 After the jury retired that day, Mr Glissan QC did make a submission to the trial judge concerning an aspect of the judge's charge to that point. In such circumstances how it could possibly be seriously argued Mr Corp sustained any prejudice or damage to a potential acquittal outcome for him by reason of the absence of only his junior counsel is not pleaded, or otherwise explained. The reason for this is clear: it simply cannot.

65 The aspects of the ASOC pleading concerning Mr Whyte's non-attendance at trial across Friday 28 September 2007 manifestly fail to disclose any arguable cause of action against him. They will be struck out and dismissed now as untenable. With that excision, the alleged negligence position which requires the more substantive evaluation is common between the two barristers, for the period between Tuesday 2 October to Thursday 4 October 2007.

The barristers' alleged breaches of duty

66 On Tuesday morning 2 October 2007 at 10.00 am the joint trial of Mr Corp and Mr Smith resumed. The transcript records Mr Robinson's appearance as counsel on behalf of Mr Corp (see Mr Corp's affidavit, SAC8 page 54, ts 3267). At ts 3268 (see Mr Corp's affidavit page 55), the trial judge was told by Mr Shirrefs SC that both Mr Glissan QC and Mr Whyte were not present, they having been at a law conference on the weekend and that 'their plane broke down'. Mr Shirrefs SC said Mr Glissan QC and Mr Whyte were now having to 'make the journey today', rather than the previous day.

67 The trial judge asked when the second and third defendants would be in attendance. In the first instance, he was (wrongly it would seem) told by Mr Shirrefs SC that '[t]hey will be here tonight'. This generated the trial judge's question:

FENBURY DCJ:

They won't be here all day?

68 Mr Robinson, as counsel for Mr Corp, then corrected the position, advising his Honour:

… I'm here today for the reasons that my friend has just outlined. Mr Glissan's position is he did indeed have trouble with his flights, so too Mr Whyte, but they did not intend, unless it was considered necessary by I suppose your Honour, amongst other things that they be here for the balance of the trial. So that is the present state. In other words, it's a question of what happens between now and, I suppose, the close of business today, as to whether they are coming back for the balance of the trial.

(Page 21)

69 This exchange followed:

ROBINSON, MR:

If it bothers your Honour, by the way, let me know and I will pass it on to counsel.

FENBURY DCJ: Well, you have had some involvement in the matter, particularly in relation to the critical stages. I would have some confidence that you are familiar with the general issues. A lot of the issues are common to both accused people. Mr Shirrefs, with all due respect to him, has been more than able, I think, to cover most - - -

ROBINSON, MR: Yes.

FENBURY DCJ: - - - conflicts really between them. The charges are all separate. What matters is that Mr Corp's interests are represented here in court by legal representation which is fair and reasonable to look after them during this stage.

70 Then followed exchanges (see ts 3270, Mr Corp's affidavit page 57) leading to Fenbury DCJ mentioning, as I have earlier observed upon, the common interests of both the accused and remarking that Mr Shirrefs SC could provide assistance in relation to issues such as 'honesty or control and relevant interests and things like that'. Also this was said:

FENBURY DCJ:

Those issues of course apply to both accused so I can't see really, to my part, that Mr Corp really is in any way disadvantaged henceforth.

ROBINSON, MR: No.

FENBURY DCJ: That's just my view.

ROBINSON, MR: No, well, I don't intend to be an effigy either to a lawyer, if you put it that way, your Honour. I am alive to the issues and in the loop of information. I know what is going on, so I will just do my best for today and see where that takes us tomorrow. We don't intend, in any way, to interfere with the trial process.

71 The trial judge subsequently told the jury, at about 2.22 pm that day (see ts 3319, Mr Corp's affidavit page 58E), that:

… You will notice that Mr Glissan and Mr Whyte aren't here. They went interstate on the long weekend and they got caught by a broken down aeroplane, apparently, not in the air. So they have not been able to get back here. So Mr Robinson who you might have seen about and who has had involvement in this trial, he is standing in for them and Mr Shirrefs is keeping an eye on things for Mr Corp as well.

(Page 22)

So I thought I would explain that to you so you don't wonder what on earth is going on. It has been discussed and proceeding as we are, obviously because it is very desirable that the trial be proceeded with. …

72 The trial judge's charge to the jury continued throughout Tuesday, into Wednesday 3 October 2007. During this period only Mr Robinson appeared at court as counsel for Mr Corp.

73 On Wednesday morning, Mr Robinson made a submission to Fenbury DCJ concerning aspects of his charge to the jury (Mr Corp's affidavit ts 3349 - 3353, pages 60 - 64; ts 3356 - 3357, pages 67 - 68).

74 The jury finally retired at the end of the trial judge's charge at 2.54 pm on Wednesday 3 October 2007 (see Mr Corp's affidavit ts 3424, page 70).

75 On Thursday morning 4 October 2007, the trial judge received two questions from the jury. He then discussed with Mr Hall SC, Mr Shirrefs SC for Mr Smith and Mr Robinson for Mr Corp, the answers which he proposed to supply to the jury (see Mr Corp's affidavit ts 3431 - 3444, pages 77 - 90).

76 Mr Robinson participated in portions of the exchanges that morning concerning the trial judge's proposed responses.

77 The jury received the trial judge's answers at 10.32 am and retired again at 10.38 am.

78 At 12.13 pm that Thursday, the jury returned and delivered verdicts in respect of all counts (see Mr Corp's affidavit ts 3446 - 3447, pages 92 - 93).

79 Mr Corp was acquitted on six counts (counts 12, 13, 14, 19, 22 and 35), but was convicted on 15 (counts 1, 2A, 3A, 4A, 5A, 7, 8A, 10, 11, 23, 24, 25, 31, 32A and 33).

80 Mr Corp and Mr Smith were then bailed before appearing for sentence before the trial judge a week later on 11 October 2007. They received the custodial sentences to which I have previously referred.

The appeal

81 Mr Corp and Mr Smith's appeals against their convictions and sentences were heard together in the Court of Appeal between 6 and 8 May 2008.

(Page 23)

82 On 17 June 2008, the Court of Appeal delivered reasons allowing Mr Corp and Mr Smith's appeals against their convictions on all counts, but ordering a retrial in Mr Corp's case in respect of 10 counts (counts 1, 7, 10, 11, 23, 24, 25, 31, 32A and 33). There was a similar result for Mr Smith.

83 As I said earlier, reasons by the members of the Court of Appeal require careful stand alone assessment. But by way of what is an overly simplistic present summary, the position was that there were, in the end, two successful appeal grounds by Mr Corp and Mr Smith.

84 The first successful ground concerned the trial judge's directions to the jury concerning the evidence as to both mens' use of proxies, which were alleged to have been voted at polls demanded at various general meetings in relation to resolutions. Upon this ground Buss JA said [124]:

It was not sufficient, as the learned trial judge appears to have directed the jury, for the jury merely to be satisfied beyond reasonable doubt that the proxies in question were 'taken into account in determining whether the resolution was passed' (ts 3444 - 3445). His Honour appears to have suggested that it was not necessary for the prosecution to establish that the proxies in question were voted on polls demanded at the relevant general meetings. Similarly, it was not sufficient, as counsel for the respondent submitted, for the jury merely to be satisfied beyond reasonable doubt that the proxies had been taken into account 'informally' in determining whether the resolutions were passed.

85 Buss JA concluded that an inference as to Mr Corp and Mr Smith's voting of the proxies upon polls conducted at a particular general meeting the subject of various counts was, 'not the only inference that could reasonably be drawn from the evidence' [125]. An inference was also open as to resolutions possibly having been passed on a show of hands [126].

86 At [127] Buss JA concluded consequentially, that convictions against Mr Smith and Mr Corp on certain counts concerning proxy voting should be quashed and that the nature of the successful challenge precluded a retrial. For these counts verdicts of acquittal were appropriate.

87 As regard further counts concerning proxy voting at another general meeting on 23 October 1996 (counts 24, 25, 26 and 27 against Mr Corp), Buss JA observed that the evidence was materially different (see [129] and [130]). His Honour said [130]:

The minutes of the meeting on 23 October 1996, concerning counts 24, 25, 26 and 27, expressly record in relation to the relevant resolutions that Mr

(Page 24)

Smith, as the chairman of the meeting, called for a poll. The minutes record, relevantly, in relation to each relevant resolution:

The chairman called for a poll:

For 11,790,253

Against 221,904

The Resolution was declared passed

Mr Smith, as chairman of the meeting, signed the minutes.

88 On these counts (concerning that general meeting), Buss JA observed [131] - [132]:

The features of the minutes of the meeting on 23 October 1996 which I have mentioned were powerful evidence against Mr Smith and Mr Corp.

In my opinion, the convictions on counts 24, 25, 26 and 27 were not unsafe or unsatisfactory as a result of the issues raised on behalf of Mr Smith and Mr Corp. My examination of the record does not require the conclusion that the jury must have entertained a doubt about Mr Smith's or Mr Corp's guilt on those counts. The verdict of the jury was not unreasonable, and it is a verdict which is supported by the evidence.

89 Therefore the ground of appeal by Mr Smith and Mr Corp concerning the voting of proxies at one general meeting succeeded (to the extent of bringing about a quashing of some counts, with verdicts of acquittal entered). However, the evidence was different in respect of the general meeting of 23 October 1996. Convictions concerning proxy voting at that meeting were not disturbed upon this ground.

90 The second successful ground of appeal, raised by both Mr Corp and Mr Smith, concerned the trial judge's asserted failure to give a clearer direction in respect of three comments upon the evidence he made in his charge to the jury. This ground contended that there had been a failure to sufficiently direct the jury that they were not bound to accept and were free to ignore any comments made upon facts by the trial judge: see observations of Buss JA [134] - [155], applying Mule v The Queen [2005] HCA 49.

91 Buss JA was of the view the trial judge ought to have directed the jury in respect of all three of the comments he made to the jury about the state of the evidence against Mr Corp and Mr Smith, that these were comments the jury were entitled to ignore [160]. Failure to give such a clear direction was an error of law.

(Page 25)

92 As regards three areas of comment by the trial judge, see [161] in Buss JA's reasons, the comments made mainly concerned Mr Smith, but also carried possible ramifications for Mr Corp. The second and third comments were assessed to carry the same problem. The later comments had in fact been challenged at trial by Mr Shirrefs SC at the time. The trial judge declined to redirect: in respect of the second comment (see [162] Buss JA) and in respect of the third comment, the trial judge only elaborated upon his remarks to the jury. His third comment was not withdrawn: Buss JA [164(d)].

93 After considering s 30(4) of the Criminal Appeals Act 2004 (WA), Buss JA (see reasons [168] - [169]) was unable to conclude there had not been a substantial miscarriage of justice against Mr Corp and Mr Smith, as regards this error of law.

94 Aside from these two successful grounds, other grounds of appeal of Mr Smith and Mr Corp were rejected.

95 After identifying the counts in respect of which convictions would be quashed and verdicts of acquittal entered, Buss JA concluded (see [252]):

Mr Smith's grounds 7 and 8 and Mr Corp's ground 10 have been made out in relation to all of the counts on which they were convicted. I would allow the appeals, quash the convictions and order a retrial of Mr Smith on counts 6, 9, 26, 27, 28, 29, 30, 32B and 34, and a retrial of Mr Corp on counts 1, 7, 10, 11, 23, 24, 25, 31, 32A and 33. Although Mr Smith's grounds 7 and 8 and Mr Corp's ground 10 have also been made out in relation to [various counts], for the reasons I have given, I would not order a retrial on those counts.

96 Miller JA (reasons [254]) agreed with Buss JA.

97 Murray AJA agreed in the result, although his Honour seemed to express different views upon the ground concerning the asserted failure to direct the jury that they were at liberty to ignore comments on the evidence: see reasons Murray AJA [326], [332], [335], [356].

98 As I mentioned, in the aftermath of the appeal the Commonwealth ultimately did not proceed with a retrial of any of the surviving counts against Mr Corp or Mr Smith.

Advocates' immunity: principles applicable to the present case

99 The alleged duty of care contended as owed towards Mr Corp (pleaded at par 27 of ASOC) by Mr Glissan QC and Mr Whyte, is not formulated in the traditional sense as a general barrister's duty of care.

(Page 26)

The duty looks to have been constructed to align with the alleged breach conduct of the barristers seen at ASOC par 28 (as regards Mr Glissan QC) and at par 28A (as regards Mr Whyte). Formulated this way, the duty essentially becomes a self-fulfilling formulation. As to why a duty of care should not be formulated in narrow fashion and with an eye to the alleged breach, see

Tame v New South Wales

[2002] HCA 35; (2002) 211 CLR 317, 99 (McHugh J) and

Stuart v Kirkland-Veenstra

[2009] HCA 15; (2009) 237 CLR 215 [85] (Gummow, Hayne & Heydon JJ).

100 For the formulation of the more typically seen general duty of care owed to a client by barristers, as skilled professionals, it is useful to mention recent observations of Bell J in Goddard Elliott v Fritsch [2012] VSC 87 [407]:

In both contract and tort, the standard of care which is expected of a person providing professional services is the standard which was stipulated in

Rogers v Whitaker

[(1992) 175 CLR 479] in these terms:

'In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill [Ibid 487 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) (footnotes omitted) ("

Rogers

")].'

101 I will contrast the above observations to par 27 ASOC, which reads:

Because of the facts and matters pleaded in paragraphs 7 to 10 inclusive, at all material times each of Mr Glissan and Mr Whyte owed a duty of care to the plaintiff to take all reasonable steps as may be required in their capacity as barristers representing the plaintiff to attend the trial of the indictment so as to represent the plaintiff.

102 The facts at par 7 - 10 ASOC concern an engagement by Mr Robinson of Mr Glissan QC and Mr Whyte as senior and junior counsel, entry of costs agreements and the assertion counsel knew by 22 August 2007, that the trial would not conclude until the end of the week ending Friday 5 October 2007. Those asserted facts are accepted for the purposes of evaluating the present applications.

103 From the alleged duty of care to the alleged breaches thereof, ASOC par 28 concerning Mr Glissan QC and par 28A concerning Mr Whyte are essentially similar. The main difference is the additional allegation against Mr Whyte, concerning his failure to attend the trial on Friday 28 September 2007 (though, as previously stated, I have assessed this aspect of the alleged breach to be untenable).

(Page 27)

104 The core breach allegations against both barristers regard their non-attendances at the resumption of the trial, between 2 and 4 October 2007. They are pleaded as being manifested in three respects. First, at par 28.1 (against Mr Glissan QC) and par 28A.1 (against Mr Whyte), is the contention that competent, experienced and prudent counsel in the position of Mr Glissan QC (or in the position of Mr Whyte) would not have travelled (from Perth to the Whitsunday Islands) until the conclusion of the trial. Sub-aspects of that breach contend, in effect, that the two barristers ought not to have travelled at all to the Whitsunday Islands from Perth as and when they did, given

28.1.1 that the trial of the indictment was due to resume in Perth at 10.00 am on Tuesday 2 October 2007;

28.1.2 the remoteness of the Whitsunday Islands from Perth;

28.1.3 that junior counsel in the matter (Mr Whyte) had been in the Whitsunday Islands since Friday, 28 September 2007 and that Mr Whyte would be in the Whitsunday Islands at the same time as senior counsel, Mr Glissan;

28.1.4 that any difficulties in returning to Perth for the resumption of the trial on Tuesday 2 October 2007 would likely result in [Mr Corp] not being represented by either senior or junior counsel at trial.

105 The second aspect of alleged breach (at par 28.2 concerning Mr Glissan QC and at par 28A.2 concerning Mr Whyte) contends the two barristers ought to have planned to depart from Hamilton Island earlier than by the last flight out that day on Monday 1 October (which was scheduled for 15.55 by flight no QF5849/JQ849).

106 It appears (see ASOC, par 19 and from Mr Corp's affidavit) that there was an earlier flight off Hamilton Island at 09.50 to Sydney at 00.05 am (I note an obvious error in the par 19 ASOC table concerning the reference on 1 October 2007 to flights at 21.50 and 00.05 am - the correct times respectively, should be the same as for the preceding entry for 30/09/07). Effectively then, there was an earlier 09.50 Monday morning flight off Hamilton Island to Sydney that day on which it is contended Mr Glissan QC and Mr Whyte ought to have booked and travelled, instead of on the later scheduled afternoon flight for Monday 1 October 2007.

107 The ASOC par 19 table is also confusing as regards its last entry. It could be read to (wrongly) suggest that the last flight off Hamilton Island for Sydney on Monday 1 October 2007 was scheduled to leave at 18.40

(Page 28)

(Eastern Time) and to arrive at Sydney at 21.05. The correct interpretation however is that these times must be read as the

actual

(ie delayed) departure (Hamilton Island) and arrival (Sydney) times for QF5849/JQ849, that Monday.

108 Had the afternoon flight (on 1 October 2007) left Hamilton Island at its scheduled departure time of 15.55 Monday afternoon, it would have (ordinarily) reached Sydney at 18.10. Mr Glissan QC and Mr Whyte were then both further booked to travel onwards out of Sydney to Perth that afternoon by Qantas flight no 583, which was scheduled to leave Sydney at 19.20 and to arrive in Perth at 22.20 (Western Standard Time).

109 Had they missed that 19.20 connection to Perth (assuming seats were available on the later flights, a reasonable assumption, with Mr Glissan QC and Mr Whyte both travelling business class), the next flight to Perth, QF1163, was scheduled to leave Sydney at 22.10 on 1 October 2007, arriving in Perth Tuesday morning 2 October at 01.16 (bearing in mind a two-hour time difference at that time of year). There was another Qantas flight scheduled to leave Sydney for Perth on Tuesday morning (see the table to par 20 of ASOC). That was QF565, to depart Sydney at 06.18, arriving in Perth at 09.46 (assuming, as with other flights, that seats were available). As to these uncontroversial flight options to Perth, see Mr Corp's affidavit concerning Mr Glissan QC's bookings on QF583 at page 277 and Mr Whyte at page 280.

110 For Hamilton Island Airport arrival and departure times, see attachment SAC-38 to Mr Corp's affidavit at pages 291 and 292 concerning JQ849, contrasting the scheduled with its actual departure and arrival times from Hamilton Island to Sydney for Monday 1 October 2007.

111 The third aspect of alleged breach against both barristers (par 28.3 and par 28A.3 of ASOC respectively), is that if there was any delay in departure of flight JQ849 departing 15.55 from Hamilton Island for Sydney on 1 October 2007 (as there was), then the barristers ought to have

28.3.1 planned and arranged to catch the flight at its delayed departure time [which, on the materials before me as provided by Mr Corp's affidavit, is that JQ 849 departed 2 hours and 45 minutes late from Hamilton Island for Sydney, at 6.40 pm - Mr Corp's affidavit, page 291 and 292] arriving late into Sydney by 2 hours and 55 minutes at 9.05 pm (eastern time);

(Page 29)

28.3.2 arranged a flight from Sydney to Perth with a view to arriving in Perth as promptly as possible;

28.3.3 alternatively arranged alternative means of transport such as hiring a charter plane or helicopter to Mackay Regional Airport from which connecting flights could be taken to Perth;

28.3.4 telephoned Mr Robinson, provided him with a full and candid explanation of his travel difficulties and proposed travel arrangements to overcome those difficulties, and, if it were the case that in overcoming those difficulties Mr Glissan expected to be late in arriving at Court on 2 October 2007, either arranged himself, or engaged someone on his behalf, such as junior counsel (Mr Whyte), the instructing solicitor (Mr Robinson) or [Mr Glissan QC's] practice manager (Ms Glissan) to take steps to contact the Court to seek an adjournment of the trial until counsel's arrival.

112 ASOC pars 28A3.1 - 28A3.4 (against Mr Whyte) are phrased similarly to paragraphs just mentioned concerning Mr Glissan QC. Making the assumption most favourable to Mr Corp, that Mr Glissan QC and Mr Whyte, had they waited on at Hamilton Island Airport then caught a three-hour delayed JQ849 to Sydney that Monday evening, the barristers would have reached Sydney late. They would as a result have then missed their connecting flight to Perth, QF583 (see Mr Corp's affidavit, page 277). As booked, Mr Glissan QC and Mr Whyte initially had a 70-minute window to catch their connecting flight to Perth, once they reached Sydney (see Corp affidavit, pages 277 and 280). ASOC par 20 displays the actual departure and arrival times for flight QF583 from Sydney to Perth. The actual departure time for QF583 was 19.57 from Sydney, arriving in Perth at 23.14.

113 So there was actually a window of 107 minutes to board QF583 to Perth from Sydney, had the Hamilton Island flight left on time. However, that first flight was delayed by nearly three hours. But Mr Glissan QC and Mr Whyte might still have travelled to Perth via Sydney on QF1163, or even the following Tuesday morning by QF565 (if there were business class seats), albeit they would have arrived about an hour late at court (allowing for travel from Perth airport to the CBD) for the recommencement of the trial, if QF565 had arrived in Perth on time at 09.46, with the trial re-commencing at 10.00.

(Page 30)

The true grievance of Mr Corp: the resumption of the trial on 2 October 2007

114 Despite efforts on behalf of Mr Corp to persuade me this was a simple case of barristers just not turning up for work on appointed days, and therefore well outside the scope of any barrister's work carried out in court, or work intimately connected with such work, I reach a contrary view.

115 The character of Mr Corp's grievance against the two barristers is disguised by a (very inadequate) plea as to causation and damage as seen in ASOC par 29. But Mr Corp's essential grievance, in my view, is betrayed in ensuing particulars, especially by an assertion as to the non-attendance denying Mr Corp a chance of an acquittal through the barristers not being at court to ensure 'that the directions given to the jury by the Trial Judge [were] adequate and according to law'. The buried assertion, on analysis, clearly raises a direct challenge against the finality of the jury's verdicts against Mr Corp at his trial. Such a challenge is wholly impermissible, applying D'Orta.

116 Mr Corp's true grievance against senior and junior counsel cannot be disguised by simplistically pleading that counsel's non-attendance on (relevantly) three hearing days thereby resulted in Mr Corp being convicted, then incarcerated until his convictions were later set aside on appeal. Nor can they be camouflaged by blandly asserting Mr Corp 'lost the chance of being acquitted of all charges'.

117 The 'bottom line' is that Mr Corp is clearly seeking to challenge the finality of his jury's verdicts against him by his presently pleaded ASOC attacks against Mr Glissan QC and Mr Whyte.

118 In circumstances where it is clear Mr Robinson attended court and acted as counsel for Mr Corp between 2 and 4 October 2007, it cannot rationally or logically be said that 'the' or even 'a' cause of the jury convicting Mr Corp on 15 counts was the absence of his two barristers over three days at the end of his criminal trial. Such a challenge ignores the eight preceding weeks of trial before Tuesday 2 October 2007, which included all the trial evidence (Mr Corp and Mr Smith not giving evidence at their trials) and Mr Glissan QC's closing address to the jury on behalf of Mr Corp. The grievance also overlooks Mr Corp's representation at court in the relevant three-day period by Mr Robinson, as to which there is, and can be, applying D'Orta, no legitimate challenge.

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119 Any logical causation and damage outcome arising out of the two barristers' absences needs to show why it is that if they had attended on the days in issue this could, arguably, have resulted in some potential difference towards Mr Corp's convictions by the jury. The only way of advancing such a case is by a contention the two barristers' presence might possibly have led to some objection or submission to Fenbury DCJ concerning the content of his charge to the jury at that point of the trial. It would also have to be said that, having received an objection or submission concerning his charge, the trial judge might then have acceded to the submission or objection, in which case he would then have amended, modified or supplemented his charge in such fashion that an amended charge would then have generated acquittal verdicts for Mr Corp by his jury on all charges.

120 Once that unpleaded (by material facts) but essential underlying causation and damage pathway is identified, then the alleged breach of duty as contended for against the barristers (failing to appear in court on the days in question) distils to the underlying challenge against the jury's conviction verdicts.

121 In D'Orta Gleeson CJ, Gummow, Hayne & Heydon JJ said:

[37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.

…

[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

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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.

…

[82] … It follows, therefore, that the class of cases in which an intermediate result would be open to challenge not only would be exceptional, in the sense of standing apart from challenges to final decisions, but also would be a class of case whose membership would depend upon the application of criteria unconnected with what, for present purposes, is the central focus of debate, namely the alleged negligence of the advocate. By this stage of the argument, in which attention is directed solely to exceptional cases, the proposition that for every wrong there should be a remedy has become too attenuated to be of any relevant application. Especially is that so when the very existence of the relevant exceptional case depends for the most part upon considerations that are irrelevant to the wrong that is to be remedied. If final results cannot be challenged, intermediate results should not be treated differently.

Corp v Robinson

[2012] WASC 490

CORP -v- ROBINSON [2012] WASC 490