Criddle v Monck - [2024] WASC 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CRIDDLE -v- MONCK [2024] WASC 283
CORAM:   HOWARD J
HEARD:   30 MAY 2024
DELIVERED          :   12 AUGUST 2024
PUBLISHED           :   12 AUGUST 2024
FILE NO/S:   CIV 1057 of 2021
BETWEEN:   ERRON JAMES CRIDDLE
Plaintiff
AND
STEPHANIE MONCK
Defendant

Catchwords:

Practice and procedure - Defendant's summary judgment application - Leave granted to bring application out of time - Whether advocates' immunity applies - Where plaintiff's allegations were of 'non-work' out of court - Summary judgment application granted

Legislation:

Criminal Code 1913 (WA)

Result:

Application for summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr A J Crocker

Solicitors:

Plaintiff	:	In Person
Defendant	:	MDS Legal

Cases referred to in decision(s):

ABC (A Pseudonym) v Reader Lawyers & Mediators [2021] WASCA 202
Criddle v The State of Western Australia [2017] WASCA 17
Day v Rogers [2011] NSWCA 124
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Giannarelli v Wraith (1988) 165 CLR 543
Golden v Koffel [2022] NSWCA 8
Jimenez v Watson [2021] NSWCA 55
Philip Walton trading as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86
Toth v Stewart Law Pty Ltd [2022] NSWCA 85

HOWARD J:

The plaintiff commenced these proceedings by an indorsed writ on 2 February 2021, which stated:
The plaintiff's claim against the defendant is for damages arising from wrongful conviction due [to] the negligence of the defendant regarding WADC/CRIM/PER/IND908/2014.
The plaintiff's current pleading, which is the subject of this application by the defendant, is an Amended Statement of Claim filed 7 December 2023 (statement of claim or SOC).
The defendant is, and was, a legal practitioner who represented the plaintiff in the District Court of Western Australia where he was charged with one offence contrary to s 320(2) of the Criminal Code 1913 (WA) that: on or about 3 February 2012, [the plaintiff] sexually penetrated [E], a child under the age of 13 years, by penetrating her vagina with his finger.
The defendant represented the plaintiff during the first day of the trial and the defendant cross‑examined the complainant and her mother.
The plaintiff then terminated the defendant's retainer because of his concern about her level of preparation and the content of her cross‑examination of the complainant. He applied to adjourn the trial to obtain alternative counsel, but that application was refused. The plaintiff represented himself for the balance of the trial.[1]
[1] Criddle v The State of Western Australia [2017] WASCA 17 [4].
After the trial by jury in March 2015, the plaintiff was found guilty and was convicted. He was sentenced to three years' immediate imprisonment with eligibility for parole.
The plaintiff appealed against that conviction successfully and his conviction was quashed with a retrial being ordered: Criddle v The State of Western Australia [2017] WASCA 17. The Court of Appeal allowed the appeal at the conclusion of the oral argument and the plaintiff was released from custody pending the ordered retrial.
The plaintiff was retried in the District Court in October 2017 before a jury and found not guilty.
The plaintiff's claim against the defendant relates to his first District Court trial.

This application

Following the filing of the statement of claim on 7 December 2023, the defendant filed a defence on 22 December 2023 and an application for leave to apply for summary judgment or, alternatively, for leave to apply to strike out the statement of claim.
By her chamber summons filed 22 December 2023, the defendant seeks orders in the following terms:
1.Pursuant to Order 16 rule 1(1) of the Rules of the Supreme Court 1971 (WA):
a.the defendant have leave to bring an application for summary judgment;
b.summary judgment be entered for the defendant;
c.the action be dismissed; and
d.the plaintiff pay the defendant's costs of the action.
2.In the alternative to paragraph 1, pursuant to Order 20 rule 19(1)(a) of the Rules of the Supreme Court 1971 (WA):
a.the plaintiff's amended statement of claim filed 7 December 2023 (Third Statement of Claim) be struck out on the ground that it discloses no reasonable cause of action; and
b.the action be dismissed and judgment be entered in favour of the defendant; and
c.the plaintiff pay the defendant's costs of the action.
The defendant required leave to bring her summary judgment application as she was well out of time under O 16 r 1.
The defendant read, without objection, an affidavit of her solicitor made 22 December 2023 which sought to explain why the defendant was making her application out of time. (The defendant did not put on any evidence as to the merits of the plaintiff's claim against her).
Without reciting the steps in these proceedings which explain the making of the application out of time, I consider that the defendant's solicitor's affidavit adequately explained the delay.
At the hearing, the plaintiff, who represented himself, did not assert any prejudice if the defendant were granted leave to make her summary judgment application out of time.[2] Having said that, the plaintiff did not consent to the leave being granted.[3]
[2] ts 33.
[3] ts 33.
As will be seen, I have reached the conclusion that the defendant's application for summary judgment ought be granted on its merits. There is no prejudice to the defendant occasioned by the leave being granted and the delay has been adequately explained. I will grant the defendant leave to bring her application out of time.

The plaintiff's first trial

Relevantly for present purposes, the Court of Appeal summarised the State case and E's evidence against the plaintiff as follows:[4]
[4] Criddle v The State of Western Australia [2017] WASCA 17.
11.The alleged victim in this case is a female child, E. At the time of the alleged offence she was 11 years old and less than one week away from her 12th birthday. E is the child of Mr and Ms T. …
12.The appellant [the plaintiff] and Mr T first met in 1987. The appellant and Mr T became very close friends. The appellant was a frequent visitor to Mr and Ms T's house, often staying overnight in the guest bedroom which was close to [E’s bedroom].
13.On 31 January 2012, E went on a school camp. She returned on 3 February 2012 and went to bed at about 9.00 pm. ...
14.According to E, the night of 3 February 2012 was a hot night. As a consequence, she slept naked. She woke up during the night to find an adult male in her bed lying next to her, positioned directly behind her. While in that position, the male penetrated E's vagina with his finger. E yelled at the male, 'Go away'. The male whispered 'Shh. Don't tell your parents' and left E's room.
15.E did not see the appellant, but she identified him as the offender because she recognised the voice as his voice when he spoke to her and because he had a smell which she recognised as his from previous occasions.
…
22.E's evidence comprised two visually‑recorded interviews made on 23 September 2013 and 8 May 2014 as well as her sworn evidence on 3 March 2015.
23.In the visually‑recorded interview of 23 September 2013, E told the interviewer that she had come to talk about what the appellant did on 3 February 2012. She said that she knew that the incident had occurred on that day because she wrote it in her diary. She said that she had just got back from her school orientation camp. She said that the night in question was 'quite hot', 'one of those heatwave sort of things', 'getting 50 degree days'. She said that because of the heat she was 'completely naked'. …
…
28.She confirmed that on the night in question she wore nothing because it was summer and there was a heatwave. E said that there was a pedestal fan in her room at the time. …
…
31. … In the course of the cross‑examination, E confirmed that the night of 3 February 2012 was hot. E said, in effect, that she only slept naked at home if it was 'very hot'.
…
35. Defence counsel [the defendant] did not suggest to E that the temperature on the night of 3 February 2012 was in fact cooler than she had stated. …
(citations omitted)
The plaintiff’s first three appeal grounds alleged 'a miscarriage of justice predominantly because of the alleged incompetence of [the defendant]'.[5] Both the plaintiff and the defendant gave evidence in the Court of Appeal.
[5] Criddle v The State of Western Australia [7].
The central matters which grounded the plaintiff's complaints in the Court of Appeal (and effectively his case in this proceeding) were described by the Court of Appeal in the following way:
116.It will be recalled that the State's case was that the offence was committed on the night of 3 February 2012. E testified that she slept naked on the night in question because it was a very hot night. Ground 2, as framed, concerns the failure of defence counsel to obtain official weather information from the Bureau of Meteorology for the night in question. It is said by the appellant that, had counsel done so, she would have found that 'contrary to E's testimony', it was not a hot night. Rather, it was a cool night for February. The appellant alleges that, as a result of this failure, he has suffered a miscarriage of justice.
117.Part of the additional evidence sought to be adduced in this appeal by the appellant comprised an extract from the records of the Bureau of Meteorology taken at a weather station in the vicinity of E's residence which shows that 3 February 2012 was the coldest day in the month that year, with a maximum temperature of 22.1 degrees Celsius and an overnight minimum of 11 degrees Celsius. The State does not dispute this evidence. The records do not reflect 'heatwave' conditions in the days preceding or following 3 February 2012.
118.According to the appellant, prior to a meeting with defence counsel on 28 August 2014, he conducted an internet search which revealed that the maximum temperature on 3 February 2012 was 22.1 degrees Celsius. The appellant said that he alerted defence counsel to this fact. He stated that defence counsel told him that she would obtain the relevant records from the Bureau of Meteorology for the trial.
119.According to the appellant, on 26 February 2015, defence counsel told him that she had not obtained the weather information from the Bureau of Meteorology. The appellant said that he advised her that he would obtain the information himself. The appellant deposed that he was unable to find the relevant link on the Bureau's website. He said that on 2 March 2015, the day before the trial was due to commence (a public holiday), he advised defence counsel by email that he had been unable to find the information. He said that he expected defence counsel to obtain it. In this court, under cross‑examination, the appellant did not resile from the evidence we have just described.
120.In defence counsel's affidavit sworn 24 February 2016, she agreed that, prior to trial, there had been a discussion between her and the appellant about 'obtaining some official document to show what the temperature was on the night the incident (allegedly) occurred'. She said that initially she thought the matter might be 'of some assistance' to the appellant. She said that she left it to the appellant to obtain this information and she directed him to the Bureau of Meteorology website. Defence counsel stated that she later considered such information would not assist the appellant because 'whatever the temperature was that night, E, in her interview with the police, stated that she had slept naked that night'.
121.Defence counsel went on to state in her affidavit that she made a forensic decision not to press E in cross‑examination about the temperature on the night of the alleged offence because 'even if I put it to [E] that she could not have slept naked because it was the coldest night in February, she undoubtedly would have maintained that she did sleep naked that night, and I was of the view that the jury did not need to hear such being repeated yet again'.
122.Defence counsel did not explain in her affidavit nor in her evidence in this court, why she thought E 'undoubtedly would have maintained' her stated position if confronted with the information obtained from the Bureau of Meteorology. Significantly, under cross‑examination, defence counsel added that she considered that it was 'irrelevant' whether 3 February 2012 'was the coldest night or the hottest night [in February]'.
…
124.The appellant submitted that the failure of defence counsel to obtain the Bureau of Meteorology records could not be justified on the basis of a reasonable forensic judgment. He submitted, in effect, that counsel's failure affected the fairness and outcome of the trial.
Relevantly for present purposes, in upholding the plaintiff's appeal, the Court of Appeal stated:
128.Although the State's case did not depend on the date of the offence, based on the entry made in E's diary, the State alleged that the offence occurred on the night of 3 February 2012. An important feature of E's account of the offence was that it was a very hot night and, because of this, E slept naked. E's evidence was that she only slept naked on hot nights. Evidence capable of undermining the fact that the offence occurred on a hot or very hot night (and, in fact, the night could not reasonably have been characterised in this way) was capable of significantly undermining E's account of events. Moreover, if the alleged events did not occur on the evening of 3 February 2012, a further question arose as to the veracity of the diary entry said to have been made on 4 February 2012.
129.It is clear that the appellant instructed his counsel, well prior to trial, about the existence of meteorological records which showed that the night of 3 February 2012 could not, on any view, be characterised as hot. That was the effect of both the appellant's and [the defendant's] evidence.
130.At least generally speaking, defence counsel in a criminal trial is engaged as an advocate, not an investigator. Counsel acts on instructions provided by the client. However, in the present case, defence counsel was instructed as to the existence of meteorological records which were inconsistent with an important aspect of the prosecution evidence. As the State's appeal counsel properly conceded, evidence of those records was easily obtainable. The appellant's instructions were given in a context which made it clear that he wanted the issue pursued, and in which there was no forensic disadvantage to doing so. In those circumstances, it was incumbent on counsel to take steps, or ensure that steps were taken, to obtain evidence of those records in admissible form.
…
132.Irrespective of whether [the defendant] held evidence of the records in admissible form, her instructions provided a legitimate forensic basis for challenging E's evidence about the temperature in cross-examination. [the defendant] did not fail to challenge E's evidence about the temperature on 3 February 2012 because she did not hold meteorological records in admissible form. Rather, she decided not to cross-examine on that issue because she took the view that 'to press the complainant any further on the point of the temperature would not have assisted' the appellant's case. Prior to trial, she had also formed the view that the meteorological information would not assist 'because despite whatever the temperature was that night, the complainant, in her interview with police, stated that she slept naked that night'.
133.In our view, this was an error of judgment on defence counsel's part which was incapable of being justified as a reasonable forensic judgment. E may or may not have maintained she slept naked, but it cannot be said she would have inevitably said she had. Regardless of whether she maintained that position, her evidence that it was a hot or very hot night in the midst of a heatwave would have been difficult to maintain. A cross‑examination of E, based on the Bureau of Meteorology records almost certainly would have been very advantageous to the appellant. In our view, there was no potential for adverse consequence to the appellant of such a line of cross‑examination.
…
140.The meteorological records about the temperature on the night of 3 February 2012 were an important aspect of the defence which the appellant wanted to run at trial. They had the potential to significantly undermine E's evidence. On the prosecution case E's diary note, written on the morning of 4 February 2012, related to the offence which had happened 'last night'. This fixed the date of the offence, as there is little opportunity for a person to be mistaken about the date of an event when writing a diary entry on the following morning. E described the offence as occurring while she slept naked with a pedestal fan because it was a hot night. With a minimum temperature of 11^oC, following a maximum temperature of 22^oC during the day, the night of 3 February 2012 was not hot. The meteorological records raised more than an issue as to the particulars of date of the offence. The records strongly suggested that offence could not have been committed on 3 February 2012 in the manner E described. E's evidence about the diary note was inconsistent with the offence having been committed on a different night.
141.Defence counsel's error of judgment meant that the inconsistent meteorological records were never put to the complainant. This occurred in a context where appellant had instructed his counsel about the existence of the records, the records were easily obtainable, the evidence was clearly relevant and the appellant wanted to raise the issue as an important aspect of his defence. There was no forensic disadvantage in pursuing the issue. The trial judge's erroneous comments discouraged the appellant, then acting without legal assistance, from seeking to obtain or tender evidence of the temperature on 3 February 2012. Counsel's and the trial judge's error as to the relevance of the meteorological records had the practical effect of depriving the appellant of the opportunity to run an important aspect of his defence. These unusual circumstances combined to constitute a material irregularity in the trial which could well have affected its outcome, and a miscarriage of justice.
(citations omitted)
The plaintiff also, without objection, relied on his affidavit filed 29 January 2024.
For the purposes of this application, I have accepted the plaintiff's evidence in his affidavit and each of the matters quoted above from the Court of Appeal’s judgment.

The plaintiff's present case

As he was in the Court of Appeal, the plaintiff is self‑represented in these proceedings. The statement of claim pleads, across 13 paragraphs, breaches of duty by the defendant. It is not necessary to set those paragraphs out in full. The following serves as a representative sample of the allegations made:
31.The Defendant breached her duty of care by not managing the risk of harm to the Plaintiff by:
a. Not obtaining the weather evidence in an admissible form by 26 February 2016;
b. Resulting in a chain of causation and subsequent harm to the Plaintiff of 15 months imprisonment; or alternatively;
…
33. The Defendant breached her duty of care by not managing the risk of harm to the Plaintiff by:
a. Failing to turn her mind to the matter of the weather on 3 February 2012 and consider the impact the weather would have on the assertion by the Plaintiff that the diaries were fabricated and subsequently, to obtain the weather evidence in an admissible form by 26 February 2016;
b. Resulting in a chain of causation and subsequent harm to the Plaintiff of 15 months imprisonment; or alternatively;
34.The Defendant breached her duty of care by not managing the risk of harm to the Plaintiff by:
a. Failing to turn her mind to the matter of the weather on 3 February 2012 and by not turning her mind to the defence, to caste a significant light on the credibility or reliability of the complainant's evidence, to find out that:
i. The maximum temperature was 22.1 degrees Celsius, with an overnight minimum of 11 degrees Celsius;
ii. It was the coldest daytime temperature in February for 2012;
iii. That it rained all day;
b. Not obtaining the weather evidence in an admissible form by 26 February 2016;
c. Resulting in a chain of causation and subsequent harm to the Plaintiff of 15 months imprisonment; or alternatively;
…
52. If work was done (function performed) by the Defendant, then a decision would have been made to use the weather evidence, and the following could have been done:
a. Challenge Nakedness;
b. Challenge Diaries;
c. Challenge Weather;
d. Challenge Date;
e. Challenge People in House;
53.If the Defendant had done the work, the Jury would have, based on reasonable doubt, concluded the following about the complainant's following evidence, as the retrial indicated:
a. The event could not have happened on 3 February 2012;
b. The veracity of the diary entry was questionable;
c. It was likely the complainant was clothed;
d. It was likely that the complainant's brother was home, and that his friends may have also been in the house;
54. If the Defendant had done the work, the Defendant would have found that a clothed complainant would have impacted the evidence given by the complainant regarding the actus reus of the allegation;
…
57. But for the Defendant's negligence, as premised, the Plaintiff wouldn't have spent 15 months in prison for a crime the Plaintiff did not commit;
… .

I have proceeded to consider the defendant's application on the basis that the defendant did breach her duty of care owed to the plaintiff in the way or ways alleged. From here, I refer to the meteorological records referred to by the Court of Appeal and by the statement of claim as the 'weather evidence'.

The defendant's contentions

The defendant relies on 'advocate's immunity' as, effectively, a complete defence and the basis of her application.[6]
[6] Defendant’s written submissions filed 12 February 2024 [3].
The defendant cited a number of cases in support of her submission that it was appropriate for the Court to consider and determine the application of advocate's immunity on a summary basis.[7]
[7] Giannarelli v Wraith (1988) 165 CLR 543; Jimenez v Watson [2021] NSWCA 55; Toth v Stewart Law Pty Ltd [2022] NSWCA 85; Golden v Koffel [2022] NSWCA 8; ABC (A Pseudonym) v Reader Lawyers & Mediators [2021] WASCA 202.
Consistently with the approach taken in many other cases, I consider it appropriate to determine the defendant’s summary judgment application at this point.
The question remains whether, consistently with the well‑established principles, the defendant should obtain summary judgment because it is clear that the plaintiff could not succeed in his claims at a trial.
The defendant submitted that:
1.the judicial determination in the present matter was the recording of the conviction by the District Court at the first trial;[8]
2.the key question is what was the functional connection between the work of the defendant and the judicial determination of the matter;[9]
3.whether or not the weather evidence was adduced and put to the complainant [E] at the first trial is said by the plaintiff to have affected the decision of the jury and, therefore, the entry of the conviction;[10]
4.the plaintiff seeks to demonstrate that his conviction at the first trial was wrong and that, but for the (negligent) work of the defendant, there would have been a different result and he would have been acquitted at the first trial (as he was at his second trial);[11] and
5.the plaintiff's claim seeks to undermine the finality of judicial determinations and is not permitted.[12]
[8] Defendant’s written submissions filed 12 February 2024 [26], [27].
[9] Defendant’s written submissions filed 12 February 2024 [25].
[10] Defendant’s written submissions filed 12 February 2024 [30].
[11] Defendant’s written submissions filed 12 February 2024 [31].
[12] Defendant’s written submissions filed 12 February 2024 [31].
The defendant, in particular, relies on Jimenez v Watson [2021] NSWCA 55, Toth v Stewart Law Pty Ltd [2022] NSWCA 85 and Golden v Koffel [2022] NSWCA 8 as three cases where a plaintiff's complaint about out of court work in criminal proceedings was met, successfully, by the invocation of advocate's immunity.
The defendant also contended that the plaintiff, in this case, could not prove that the defendant's negligence caused his loss and damage because the trial judge at the first trial would have excluded the weather evidence. In [141] as quoted in paragraph [20] above, the Court of Appeal touched on the trial judge's 'erroneous comments' concerning the admissibility of the weather evidence.
I would not have granted summary judgment to the defendant on this basis, although I do not need to decide the issue. To my mind, and without full argument on the point, I would have thought that the question of causation as identified by the defendant ought be approached on the basis that if the weather evidence was available and sought to be tendered, or used in the cross‑examination of the complainant, then the trial judge would have made a correct ruling in law.

The plaintiff's contentions

As noted, I have, for the purposes of this application, accepted that the defendant did breach her duty or duties of care owed to the plaintiff. And, for the avoidance of doubt, I have proceeded on the basis that the plaintiff would be successful in establishing both the representative breaches I have quoted in paragraph [23] above, and the consequences which are pleaded to have flowed from those breaches.
The plaintiff submitted that if the defendant had done the work prior to the trial which she was obliged to do then she would have 'easily' obtained the weather evidence which was of an exculpatory nature.[13] For the purposes of this application, I accept that submission. It is consistent with the findings of the Court of Appeal I set out above and the plaintiff’s affidavit which, for present purposes, I have accepted.
[13] Plaintiff's written submissions filed 28 May 2024 [35].
The plaintiff in careful and thoughtful submissions:
1.recognised the principles and line of authority concerning advocate's immunity;[14]
2.said that, here, his claim did not require the re‑litigation of the controversy as that had occurred by order of the Court of Appeal;[15] and
3.submitted that his case was not about 'in-court' work but was about an out of court pre-trial event where the defendant did not perform her duty.[16]
[14] Plaintiff's written submissions filed 28 May 2024 [25].
[15] Plaintiff's written submissions filed 28 May 2024 [47], [48].
[16] Plaintiff's written submissions filed 28 May 2024 [1], [38].
The plaintiff submitted that the High Court in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [82] left open the possibility that 'exceptional cases' may not fall within advocate's immunity.[17] And, that this was an exceptional case because the Court of Appeal had set aside the intermediate result (first trial conviction) and had identified the defendant's negligence as having caused the miscarriage of justice.[18]
[17] Plaintiff's written submissions filed 28 May 2024 [26].
[18] Plaintiff's written submissions filed 28 May 2024 [26].
The plaintiff submitted that:
The administration of justice is paramount, however if advocate's immunity crosses the line with respect to an exceptional case and protects negligent pre-trial conduct that relates to exculpatory evidence, then it will no doubt bring the administration of justice into disrepute. Should advocate's immunity cross this line in the sand and trump the administration of justice, or should this exceptional case exception be recognised?[19]
[19] Plaintiff's written submissions filed 28 May 2024 [1].
The plaintiff contended that:
[The defendant] did not turn her mind to my matter and did not perform the function of an advocate that attracts the immunity; there was no functional connection. [The defendant] did not turn her mind to my matter, and no work was done regarding the weather evidence, and this, shown with the evidence proffered to support my argument regarding functional connection.
If non-work is classified as work, then the scope outlined by Sir Anthony Mason would be obliterated …[20]
[20] ts 24; see also ts 29.
The reference in his oral submissions to Sir Anthony Mason which I have quoted immediately above was a reference, to my understanding, to the plaintiff's written submissions:[21] which sought to draw a distinction between work done out of court which leads to an 'informed' decision, and that which had occurred here. The inclusion of 'informed' was the plaintiff's gloss on the statement made by Mason CJ at the top of p 560 in Giannarelli.
[21] Plaintiff's written submissions filed 28 May 2024 [33].
The plaintiff also relied heavily on Philip Walton trading as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86 and submitted it was a case where a plaintiff client succeeded as against its lawyer in respect to work done out of court and which was outside of advocate's immunity. The plaintiff submitted this was a similar case.

Disposition of the summary judgment application

In my view, it is plain beyond reasonable argument that the plaintiff's claim turns on the defendant's failure to:
1.obtain prior to, and have available at, trial the weather evidence; and
2.use the weather evidence at the first trial to challenge the State case against the plaintiff.
The plaintiff's case is then that if breach or breaches had not occurred, he would have been acquitted at his first trial.
It seems to me plain that the plaintiff's case is that the work not done by the defendant out of court (the failure to gather the weather evidence) affected the conduct of the case in court or was intimately connected with the work in court at the first trial.
With respect to the submissions of the plaintiff, the claim is squarely within the advocate's immunity.
In D'Orta-Ekenaike at [86], Gleeson CJ, Gummow, Hayne and Heydon JJ stated:
… there is 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 the latter class of case was described … "work intimately connected with" work in a court. (We do not consider the two statements of the test differ in any significant way.) (citations omitted)
With respect, I do not understand the paragraph identified by the plaintiff[22] in a way which supports his submission. Paragraph [82] of D'Orta‑Ekenaike must be read with the previous paragraph of that judgment. And, it must be noted that [82] concludes with:
… [I]f final results cannot be challenged, intermediate results should not be treated differently.
[22] See the plaintiff’s submission set out at para [36] above.
Contrary to the plaintiff's submission I do not understand that the plurality in D'Orta-Ekenaike was recognising an exception of the kind the plaintiff identified.
Indeed, one may observe that the facts of D'Orta-Ekenaike are not completely removed from this case in that the claimant there was convicted at his first trial. And, after having that conviction quashed, was acquitted at his second trial. The action he sought to bring was linked to his first trial and (his subsequently quashed) conviction.
I do not consider that the distinction sought to be drawn by the plaintiff (which would exclude what he says is the defendant's 'non-work') is an accurate statement of the principle.
With respect to the plaintiff’s submission, it seems to me to unduly atomise the work done by the defendant into things done and things not done. On my view of the authorities, as long as the thing done or not done has the necessary connection with the conduct of the matter in court then the advocate's immunity applies.
The judgment in Philip Walton is not, with respect to the plaintiff's submissions, a straight‑forward read. In that case, the client (Efato) sued its solicitor successfully in the NSW District Court for breaches of duty or retainer.
The solicitor had acted for Efato when it had been served with a statutory demand. The NSW District Court had identified two breaches of duty or retainer being:
1.a failure to file an application to set aside the statutory demand within time; and
2.a failure to adduce the relevant evidence in a timely manner in opposition to the subsequent application to wind Efato up.
With respect of the first breach, the solicitor conceded the breach and made no claim to advocate's immunity.
In relation to the second breach, the District Court trial judge found the breach and considered the solicitor's claim to immunity. Although her Honour found that the second breach was intimately connected with the conduct of the winding up application in court, she distinguished D'Orta-Ekenaike on its facts and held that the immunity did not apply.
On appeal, Tobias JA for the Court held that the costs consequence to the client of the second breach was reasonably foreseeable as a result of the first (admitted) breach. In those circumstances, the Court at [102] found it unnecessary to express a concluded view on the immunity defence raised by the solicitor to the second breach.
In the course of reaching that conclusion, Tobias JA for the Court said that there was an 'interesting and important question relating to the application of the advocate's immunity with respect to preparatory court work'[23] arising out of the claim made on the second breach. However, as said, the court found it unnecessary to come to any conclusion with respect to that question.
[23] Philip Walton [90].
In my view, then, Philip Waltondoes not assist the plaintiff here.
The plaintiff also placed reliance on the subsequent (to Philip Walton) judgment of Day v Rogers [2011] NSWCA 124. A couple of things might be noted about Day v Rogers.
Firstly, for present purposes, some aspects of the earlier judgment in Philip Walton which appear to have gone to the earlier judgments' analysis of preparatory court work were doubted in Day v Rogers - see at [121] - [123] per Giles JA for the Court.
Secondly, and contrary to the plaintiff's reliance on Day v Rogers, advocate's immunity was held to apply to the (defendant) barrister's decision pre-court when the barrister drafted or settled the affidavits for court and certain evidence was not gathered or included. Giles JA said:
[116]… this was work done out of court leading to a decision affecting the conduct of the case in court. The work and decision were combined; there was a decision out of court, maintained as a decision at the hearing, upon how the case should be conducted in court. The [barrister's] work was within the test restated in D'Orta-Ekenaike v Victoria Legal Aid at [86], and within the alternative restated test of work intimately connected with work in court. The [barrister] in due course conducted the case in accordance with the decision he had made, relying on the affidavit evidence.
[117]Calling what the [barrister] did failure to advise upon what evidence was required and marshalling the evidence does not change its character. …
[118]The evidence adduced is central to the conduct of a case in court, and a decision on what evidence to lead or not lead is a decision affecting the conduct of the case in court. …
In my view, those observations are equally apposite to the plaintiff’s claim here. In my view, that remains the case notwithstanding that the plaintiff sought to characterise the defendant's breaches as failures to obtain the evidence.

Application to strike out the statement of claim

Given I have concluded that the defendant ought have summary judgment, I have not considered her alternative application to strike out the statement of claim.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
12 AUGUST 2024