D'Orta-Ekenaike v Victoria Legal Aid
[2004] HCATrans 119
[2004] HCATrans 119
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M61 of 2003
B e t w e e n -
RYAN D’ORTA-EKENAIKE
Applicant
and
VICTORIA LEGAL AID
First Respondent
IAN DENIS McIVOR
Second Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 21 APRIL 2004, AT 10.18 AM
(Continued from 20/4/04)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Young.
MR YOUNG: May it please the Court. On the matter of special leave, we adopt the arguments advanced by the first respondent. We add a further argument applicable only to Mr McIvor. The argument is that in Mr McIvor’s case his liability is governed by section 10(2) of the 1958 Act in Victoria. That Act applies because the relevant conduct occurred in July 1996. Section 10(2) of the 1958 Act was not repealed until 1 January 1997 by the 1996 Legal Practice Act. That means that in Mr McIvor’s case he is governed by the provision that was authoritatively construed by this Court in Giannarelli, and that provision has now been repealed.
KIRBY J: Is that submission on the statute contained in your written submissions so that we can trace it?
MR YOUNG: It is. It is addressed both as a substantive issue and as a special leave issue, but I will turn to it briefly to expand it as a substantive submission, assuming special leave is to be granted. The submission is addressed, your Honour Justice Kirby, in paragraphs 12 to 24.
KIRBY J: How did that disparity arise as between barristers and solicitors?
MR YOUNG: Well, it arose because of the terms of the 1891 Act in Victoria that was construed in Giannarelli. If the Court turns to 165 CLR at 564 in the judgment of Justice Wilson, he sets out section 10(2) and its antecedents ‑ ‑ ‑
CALLINAN J: Which page, I am sorry, Mr Young?
MR YOUNG: Page 564, your Honour. Section 10(2) as it stood after the 1958 consolidation is at the very foot of page 564. The original antecedent is the second part of section 5, at about point 3 on that page.
KIRBY J: This only touches the ability of the barrister to sue for fees, which was thought, before Rondel, to be the answer to liability.
MR YOUNG: The first part of section 5 addresses that, the second part goes further. It provides that:
every barrister shall in future be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor is now liable –
that is, as at 1891.
GUMMOW J: They were talking in contract in those days. They are using the word “negligence” in a contractual sphere.
MR YOUNG: I do not think that is correct, on the approach adopted by the ‑ ‑ ‑
KIRBY J: If it was 1891, that would have been the concept.
MR YOUNG: You are right.
KIRBY J: His Honour is right.
MR YOUNG: Of course, we did not have a legal doctrine of negligence.
GUMMOW J: No.
MR YOUNG: But it was construed to apply to the barristers involved in Giannarelli’s Case as covering both tortious or contractually‑based claims in negligence, is how I should have answered your Honour.
GUMMOW J: We will not stir that up.
KIRBY J: That is on the principle that you construe statutes from time to time to operate from time to time; you do not construe them in accordance with what people would have assumed at the time the statute was enacted.
MR YOUNG: To an extent that is right, your Honour, but the High Court in Giannarelli construed this provision as a fixed‑time provision that limited the barrister’s liability to the same extent as a solicitor was liable as at 1891. The effect of the provision was that ‑ ‑ ‑
KIRBY J: Well, that is a very old-fashioned way of construing statutes, that you fix them at a time when they were enacted. I would need a lot of persuasion that that was the correct approach.
MR YOUNG: The issue was addressed at length in the majority judgments in Giannarelli and it is because of the particular language of this provision that it was read as doing this. It limited a barrister’s liability compared to what it was pre‑1891 ‑ ‑ ‑
KIRBY J: Yes, but you cannot have it both ways, Mr Young. If you construe it in 1891, then you have to construe it as limited to liability in contract, and that is not what you are submitting. So you are trying to have a halfway position. You either have the contemporanea principle applied, or you do not.
MR YOUNG: With all respect, your Honour, the Court in Giannarelli did not construe it that way. They did not read the reference to negligence as limiting liability so that it was confined to contract only as it applied in this case.
KIRBY J: Exactly, quite. So it construed it to take into account the developments in the understanding of the law of negligence after 1891.
MR YOUNG: Your Honour, at the same time, they made it very clear that they construed it as defining a barrister’s liability in negligence as being fixed by the scope of the solicitor’s liability in negligence in 1891. Both the majority and the minority did that.
KIRBY J: There seems to be an inconsistency in that reasoning, with respect.
McHUGH J: It just follows from the words of the Act. I do not see how any other view is open. The Act says:
Every barrister shall be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on the twenty‑third day of November One thousand eight hundred and ninety‑one liable to his client for negligence as a solicitor.”
GLEESON CJ: Because it uses the word “now”?
MR YOUNG: Yes, and “now”, as originally used, was then substituted by a reference to 1891 itself, as Justice Wilson explains in the last third of the page.
HAYNE J: Then it would be necessary to take account of the well‑developed law about consolidations, consolidations not affecting the operation of the statute, and the fact that it has gone through the 1915, the 1928 and the 1958 consolidations is interesting, but unaffecting of the meaning obtained.
MR YOUNG: Yes, your Honours, we would accept that and, therefore, we would say the language should be given full force and effect and we would adopt Justice McHugh’s observation.
GLEESON CJ: But Justice McHugh is just reading the language of the statute.
MR YOUNG: Yes, your Honour, that is what we rely upon. We say this section governed McIvor’s position in July 1996 and, therefore, Mr McIvor’s liability was defined by force of a statutory provision, which has now been repealed. Can I point to the crux of the reasoning in the majority. Justice Wilson at the foot of page 570, last paragraph. Chief Justice Mason agreed with Justice Wilson on the construction and operation of the section. Justice Wilson in the middle of page 571 notices the fixed‑time character of section 10(2). Justice Dawson expresses similar views at page 590 to 591. It is the last four lines at 590 to the top of 591.
KIRBY J: Would you describe again how it came about that the Victorian Parliament amended this Act differentially in respect of solicitors and barristers affecting the respondents in different ways?
MR YOUNG: The Victorian profession was fused in 1891. Barristers previously had an unrestricted immunity, or freedom from liability. The 1891 Act cut back the barristers’ rights and tied them to the position of a solicitor advocate as of 1891.
McHUGH J: And also gave them the right in future to sue for their fees.
MR YOUNG: It did, your Honour, yes.
GUMMOW J: Justice Dawson explains the point I was trying to make to you at 591.
MR YOUNG: Yes, your Honour. The dissentients agreed in this construction to the extent that they determined that the position of the barrister was solely governed by section 10(2). They accepted the fixed‑time operation of the provision. Justice Toohey differed in other respects about the construction and Justices Gaudron and Deane agreed with him, but at 602, at about point 8 on the page, Justice Toohey addressed the same inquiry. He went on to differ about the construction.
KIRBY J: What was his Honour’s point about “to the same extent”? He says that is far from ‑ ‑ ‑
MR YOUNG: It is quite elusive, but, effectively, his Honour read that as going only so far as to impose a duty of care on barristers, but allowing for the content of the duty of care to change over time. That appears in, really, the first half of 603. At page 609, also in Justice Toohey’s judgment, the Court will see that there was no difference about the basic approach to section 10(2) being the governing provision. That appears in the middle paragraph at 609. For instance, the second sentence in that paragraph:
And it is true that a barrister’s liability is to be determined by reference to the liability of a solicitor in the performance of his duties as a solicitor in 1891.
GLEESON CJ: But that was the point of departure, was it not, between Justice Toohey and the majority? The majority said the equation is between the liability of a barrister and the liability of a solicitor advocate.
MR YOUNG: Yes.
GLEESON CJ: Whereas Justice Toohey and Justice Gaudron said the equation is between the liability of a barrister and the liability of a solicitor for conveyancing work.
MR YOUNG: Effectively, yes, your Honour, but it is clear that even the minority thought that the position of the barrister was governed solely by the statute, because of its precise language. At 610, Justice Toohey concluded by saying in the last paragraph:
The questions to be answered by this Court fall to be answered by reference to the statute law in Victoria.
KIRBY J: Now, you got me up to 1891. What happened to differentiate the respondents after that? Did anything happen more recently that differentiates the position of the respondents?
MR YOUNG: No, nothing has happened recently, but if this Court were to alter the common law it would not affect the position of Mr McIvor in July 1996, because at that time he would still be governed by section 10(2) as construed by all members of this Court in Giannarelli.
GLEESON CJ: Well, if we were to alter the common law, that would involve us saying, relevantly, to your client, a solicitor on 23 November 1891 had no immunity for any form of professional activity. If Mr Moshinsky is right, all we have to do in order to find against your client, in addition to that, is adopt the minority view of the interpretation of section 10(2).
MR YOUNG: That is possibly so, your Honour, but ‑ ‑ ‑
GLEESON CJ: In other words, we have to take – you would say they are two large steps, Mr Moshinsky would disagree with this, that is what we have to decide – we have to take two steps to find against your client. The first is, we have to prefer the minority view of the interpretation of section 10(2) of the Legal Profession Practice Act 1958 (Vic) in Giannarelli. Secondly, in addition, we have to prefer the minority view of the common law.
MR YOUNG: Yes, but with this qualification, your Honour, and the House of Lords addressed it in Hall v Simons. The foundation of the decision in Hall v Simons was that the public policy factors which undoubtedly existed in 1891 had since changed in England and, therefore, much emphasis was placed by the House of Lords on the proposition that they were not saying that Rondel v Worsley was wrong, they were not saying that Saif Ali was wrong, they were saying that as of 2000 changes in public policy and other aspects of the operation of the court system required a different answer.
Now, that throws up the contest between the declaratory theory of the common law and the positivist theory and that matter may have to be addressed in those circumstances. In other words, is this Court addressing the state of the common law as of July 1996 where this conduct occurred or is it declaring what the common law is and always was, including what it is and was as at 1891, which, of course, is a legal fiction.
GLEESON CJ: Your proposition is that, any way we look at it, we cannot escape the fact that it is the law about solicitors’ liability for negligence as on the twenty‑third day of November 1891 that governs your client’s liability.
MR YOUNG: Yes. That continued to be the position in Victoria for barristers up until 1 January 1997 when section 10(2) was repealed. We would add that section 442 makes it clear that the repeal of section 10(2) was not intended to have retrospective effect.
GLEESON CJ: So if the reason for declaring that the common law today does not recognise an immunity is that circumstances relevant to public policy have changed, we would have to rely on changes in circumstances that had occurred before 23 November 1891.
MR YOUNG: Yes, your Honour, if that is the underlying justification for changing the common law. We are not really addressing the proposition that some of their Lordships advanced that they could change the law prospectively and not retrospectively. We are simply saying that this Court has to determine what the governing law was as of July 1996 when the conduct occurred.
McHUGH J: But is there not a question concerning the construction of 10(2) brought about by the words “to the same extent”? Does it mean that the barrister is liable for negligence to the same extent as a solicitor would owe a duty of care, or is it more specific and fastens on the categories of negligence?
KIRBY J: That was Justice Toohey’s ‑ ‑ ‑
MR YOUNG: That was the point of division between Justice Toohey and the majority on that aspect of the construction of section 10(2), your Honour, but we would say it really is a very elusive, if not impossible, distinction to say that if it be the law that a solicitor is not liable for negligence associated with in‑court advocacy, that surely is part of the definition of the scope of the duty of care and cannot be dismissed as falling outside the words “to the extent that”.
McHUGH J: But the problem arises because, as at 1891, negligence was not perceived as an independent tort. It was an element in relationships which gave rise to a cause of action, and in the case of a solicitor it arose out of the contractual obligation between solicitor and client. How do you carry that notion across to the case of the barrister?
MR YOUNG: A barrister ‑ ‑ ‑
GUMMOW J: I think you have to say Rondel v Worsley was really declaring back to 1891 as well.
MR YOUNG: Yes, we do accept that, and Giannarelli was as well. It is only Hall v Simons that seems to adopt a different approach to that.
GUMMOW J: So barristers could sue in contract in 1891 in Melbourne.
MR YOUNG: To come back to Justice McHugh’s question, we would say that the intention of the section is fairly clear. When it speaks of liability for negligence as a barrister, it is not attempting to confine that liability to circumstances where it arises only under one head of action rather than another. Surely, it is dealing with the substantive conduct, however the liability arises.
McHUGH J: Why? It might be a difficult question in an amalgamated profession to determine whether the barrister‑solicitor is acting as a barrister or acting as a solicitor.
MR YOUNG: That was addressed by Rondel v Worsley, in effect, and by Giannarelli, saying that ‑ ‑ ‑
HAYNE J: But also by the context in which this legislation both was enacted and operated. The great attempt to fuse failed.
MR YOUNG: Yes, it did, in fact, but there was an attempt essentially to say that solicitor advocates are not liable, therefore, barristers should not be liable.
McHUGH J: Just refresh my recollection – it was not that the legislation failed to achieve its purpose, was it? It was that the members of the Bar agreed that they would only practice as barristers and sign the Roll of Counsel.
MR YOUNG: Yes, but to ‑ ‑ ‑
McHUGH J: But, in point of law, since 1891, everyone in Victoria has been admitted as a barrister and solicitor.
MR YOUNG: That is correct, but it does not mean that there are not people who, consistently, from 1891, practise solely as barristers. They were not precluded from doing so by virtue of the legislation, and, to that extent, the legislation failed.
GUMMOW J: From the point of view of the promoters of the legislation, that was their slip.
MR YOUNG: Yes, that is so.
GLEESON CJ: I am not sure where this leads, but this provision makes perfect sense if you bear in mind that although Rondel v Worsley decided what we were taught at law school should be spelt “lore” instead of “law”, the view that prevailed at the time of this original legislation and up until Rondel v Worsley was that the barrister’s immunity from suit was the corollary of the barrister’s inability to sue for fees.
MR YOUNG: That was never so in Victoria from 1891 onwards.
GLEESON CJ: Yes, that was a ‑ ‑ ‑
MR YOUNG: Another difference between the two States, your Honour.
GLEESON CJ: Yes, I was going to think of a polite way of saying “a view centred on Sydney harbour”.
MR YOUNG: Yes. Well, in all events we say that there is this additional complication of McIvor’s position and a further reason for not attempting to reopen Giannarelli because of its construction of a Victorian statute which, because of the date of this case and the date of the conduct, still falls within that statutory regime.
KIRBY J: Just help me again. The repeal of 10(2) occurred on 1 January 1997.
MR YOUNG: Yes, your Honour.
KIRBY J: Now, because the provision is directed to barristers, it stood as a barrier as against the second respondent, but what was the position so far as the statute was concerned in respect of the first respondent?
MR YOUNG: The first respondent was not addressed in the statute. It was governed by the common law.
KIRBY J: Yes.
MR YOUNG: Now, can I turn then really to the question ‑ ‑ ‑
KIRBY J: Did the Court of Appeal refer to this in refusing leave, the differential ‑ ‑ ‑
MR YOUNG: No, your Honour.
GLEESON CJ: What about Judge Wodak?
MR YOUNG: No, your Honour.
HAYNE J: It is only now that the class of persons affected is closed, seven years having gone since the repeal. Six years limitation plus one to serve will have closed the class.
MR YOUNG: Yes, it will have. That bears upon the grant of special leave, your Honour. Now, on the substantive question of the common law ‑ ‑ ‑
KIRBY J: It does not really remove the problem from the Court insofar as the first respondent ‑ ‑ ‑
MR YOUNG: No, I understand that, your Honour, and I am going to go on and address the common law position generally. That is what I turn to now, if I may. May I first summarise the reasons why we say there are no sufficient grounds to reopen the common law aspect of the decision in Giannarelli before I turn to deal with some particular matters in greater detail.
It is our submission that if one applies the criteria for reopening addressed in John v Federal Commissioner of Taxation 166 CLR 417 and referred to again in both Esso and Brodie, there is a strong case against reopening Giannarelli for these reasons. First, the principle in question has been an established part of the common law as part of the general immunity for all courtroom participants for more than two centuries. Secondly, it is a principle based upon the public interest in the administration of justice which, of course, involves a balancing of different aspects of the public interest.
Here, the two aspects of the administration of justice that are relevant are an open, just and efficient trial process and, secondly, the integrity of judicial decision making. Both are affected by this suggested alteration. But because the principle is based on the public interest that calls for special restraint in reconsidering, curtailing or abolishing it. There are numerous authorities in this Court, including Osmond, that have referred to that need for restraint where you have a longstanding rule based on public policy. The reason for the rule was that the best judge of public policy, one that has been erected for centuries and whether there is a need to change it, is really Parliament and not the Court. It is Parliament that is equipped to investigate differences or alterations in the public policy bases for a rule, much more so than the courts, and your Honour Chief Justice Gleeson addresses those matters in Brodie.
KIRBY J: That did not persuade the House of Lords or the Court of Appeal of New Zealand.
MR YOUNG: It did not persuade the House of Lords, but the House of Lords was affected by very different considerations, your Honour, as I will turn to later, if I may. Next, in our submission, the rule or principle is not anomalous. It is no more anomalous than the equivalent immunity afforded to witnesses, for the same reasons, and it is not anomalous when one has regard to cases such as Sullivan v Moody and Tame, where this Court has held that a duty of care will not arise in circumstances where there are inconsistent duties operating.
Your Honour Justice McHugh asked yesterday whether the “no duty” approach could be adopted to the liability of an advocate, as Justice Gaudron had suggested in Boland v Yates. In our submission, there is no reason why it cannot be adopted. One would arrive at the same result, and surely the reasoning that underpins Sullivan v Moody is also relevant reasoning in this context. The reason why it has probably not been approached that way is that the immunity long predates negligence and duty of care, and, moreover, it extends beyond liability and negligence to liability on other grounds.
GUMMOW J: That is the problem with pitching it that way, is not it? There would be an action in contract.
MR YOUNG: Yes, but that is not to say, your Honour, that the underlying reasoning of having regard to the existence of inconsistent duties becomes irrelevant. Next, in our submission, Giannarelli is a relatively recent decision that has ‑ ‑ ‑
McHUGH J: Just before you go on, just help me. In Victoria, although the barrister can sue for his or her fees, is there always a contract between the lay client and the barrister, or is the arrangement between the solicitor and the client and the barrister has a statutory right?
MR YOUNG: The answer is, there is not always a contract with the lay client. The Act now requires cost agreements to be brought into existence and they may be with the lay client, but they may alternatively be with the solicitor, and the cost agreement is a precondition to sue for recovery of fees.
GLEESON CJ: The position in New South Wales used to be that when you said a barrister could not sue to recover the fees, there was never any question of the barrister suing the client – the lay client. The question would have been one of recovering the fees from a solicitor.
MR YOUNG: Yes, that is right.
KIRBY J: This statutory provision gave a sort of anomalous claim over against the client.
MR YOUNG: Well, the possibility of availing oneself of that, your Honour.
KIRBY J: Did they have a blacklist in Victoria?
MR YOUNG: Not that I am aware of, your Honour. They may have before my time.
HAYNE J: It shows your age, Mr Young.
MR YOUNG: Mr Hore‑Lacy says there used to be.
McHUGH J: Maybe you can have an imputed contract of the Clarke v Dunraven type?
MR YOUNG: Yes, your Honour, it is quite possible. Another ground I was going to give against reopening is really this. Giannarelli has not only stood and been applied without any apparent difficulties since 1998; it is not possible to say, as one could say in Brodie, that the principle it established was confused or offensive to logic or based on a set of cases whose authority and reasoning process was deficient.
KIRBY J: That all depends on one’s point of view.
MR YOUNG: No, with respect, it does not, your Honour. There is a difference between ‑ ‑ ‑
KIRBY J: Well, there is confusion as to whether it extends to criminal proceedings and whether it extends to solicitors in non‑advocacy activities.
MR YOUNG: Your Honour, we would accept that there has been debate about whether it should or should not, but the existence of a debate, based on individual assessments of where the policy balance should lie, is a different thing than some obvious deficiency in the reasoning or the consistency of the principles laid down in earlier cases. There is a real difference between the two, in our submission.
KIRBY J: Yes, but you draw an analogy to the witness, whereas a witness has no arrangement, agreement or duty to a client or to a litigant or to another witness.
MR YOUNG: Well, your Honour, with respect, that is not so. An expert witness usually does have an arrangement and a contract with the client ‑ ‑ ‑
KIRBY J: The expert witness may well be in a different position. It is a question of finding what is at the essence of the protection.
MR YOUNG: Well, your Honour, if I can just stay with the witness for the moment, the focus of the recent cases has been on an expert witness whose position is broadly analogous, in the sense that he owes duties to the client, he accepts a retainer, he surely owes duties to the court. The recent cases have addressed the question whether an expert witness should have immunity outside the courtroom, and the unanimous view has been that he should, for the very same reasons that underpin the advocate’s immunity. That was determined by the House of Lords seven days after its decision in Hall v Simons.
GLEESON CJ: What is the reference to that?
MR YOUNG: That is Darker [2001] 1 AC 435. It is a case I will come to in these submissions, your Honour. I will come to the case specifically, if I may, in a little while.
GLEESON CJ: There are various kinds of expert witness – including some expert witnesses who probably charge at least as much fees as the barrister involved in the case – but one of the most common forms of expert witness in ordinary, day to day litigation in Australian courts is a doctor. When questions arise about comparing the position of barristers with the position of doctors, the comparison is usually made between the position of a barrister as an advocate and the position of a doctor as treating somebody. But the position of a doctor as an expert witness is covered by this protection.
MR YOUNG: Yes, he has an immunity which is co‑extensive with that of advocates. His immunity is defined by the function of giving evidence and he is protected in preparing evidence before court in the form of witness statements, or maybe even tests and the like. He is protected at a pre‑trial conference between experts, where he can freely resile from the position adopted in the report to client. He is protected in respect of that resiling, and he is protected for the same reasons as advocates are protected. The House of Lords goes through that at some length. There is a fundamental inconsistency between the position they advance in relation to advocates and the position they accepted seven days later in relation to expert witnesses, but it is our point that it is a singular immunity, existing for the same reasons and defined in essentially the same way, for expert witnesses and advocates and other participants in the court trial process.
McHUGH J: But what about the old – I do not know whether you had them in Victoria, I suppose you did – fair rent advocates who were not legally qualified but used to appear in front of fair rent courts, or trade union secretaries appearing in the Arbitration Commission or town planners in front of ‑ ‑ ‑
MR YOUNG: Well, I cannot help your Honour with the history, but the position prevails at the present time – Parliament has regularly extended immunity to its statutory tribunals and to people appearing before them. The most recent example we can find is the VCAT Act. That is the Victorian Civil and Administrative Tribunal in Victoria which handles that whole area of work. That legislation, which is 1998 Victorian legislation, specifically extended immunity to representatives appearing before the Tribunal as well as to members of the Tribunal. We handed to your Honours’ tipstaffs a list of additional references. The reference to the provision and like provisions in other legislation in Victoria is No 9, the Victorian Civil and Administrative Tribunal Act (Vic) section 143.
KIRBY J: But is that not the equivalent of in‑court immunity?
MR YOUNG: Well, it is not so closely defined as that, your Honour.
KIRBY J: It seems unlikely that a member of a tribunal would have protection outside ‑ ‑ ‑
MR YOUNG: Can I explain what I mean, your Honour. It is usually defined by saying, as it is in the case of section 143 of the VCAT Act, that representatives appearing before the Tribunal have the same immunity as they would have if appearing in the Supreme Court. The Commonwealth Parliament has adopted the same formula. Take the Trade Practices Act and its establishment of the Australian Competition Tribunal, as it is now called. Section 158 of the Trade Practices Act provides that members of the Tribunal, and people appearing as advocates before the Tribunal, have the same immunity as, respectively, Judges of this Court and barristers or advocates appearing in this Court.
Now, it would be a strange thing indeed if this occurred. I am part‑heard at the moment in the Competition Tribunal which is being conducted or presided over by Justice Heerey in the Federal Court Building in Melbourne. I have protection in that court or in that tribunal, but if I walk down the road or down the corridor into another Federal Court, it would be a strange thing if I did not have it.
KIRBY J: I do not see any disharmony there. It leaves it to the law to define what the immunity is.
MR YOUNG: Your Honour is right, but my point is this, that Parliament has considered and extended protections to members of tribunals and people appearing before it, not presumably without thinking about the need for it, not presumably simply because people have the same immunity in the High Court, but because Parliament has considered that there are appropriate policy justifications for extending the immunity to its statutory tribunals.
KIRBY J: But Parliament has not addressed the issue which is before us.
MR YOUNG: It has not, but it has made a conscious decision to extend the immunity to statutory tribunals.
KIRBY J: You would have to have some immunity. No one doubts that. It is a question of whether it stops at the door.
MR YOUNG: The House of Lords – we would understand any attempt to apply its decision wholesale to Australia would deny that.
KIRBY J: That is a matter for analysis, but I notice that the House of Lords in the Darker Case was comprised a little differently. Lord Hope, who had dissented, presided. Lord Hutton was still there. So Scotland and Northern Ireland were in strong array and then along comes Lord Mackay of Clashfern, Lord Cooke of Thorndon and Lord Clyde who had not been in the other ‑ ‑ ‑
MR YOUNG: I will turn to Darker immediately, if I may, which is somewhat out of order, but I will do that now. Can I simply say that it is clear, in our submission, that since 1988 and, in particular, right up to 1996 that we are concerned with and beyond, the Victorian Parliament and other State Parliaments and the Federal Parliament have extended the immunity to their statutory tribunals and in Victoria’s case ‑ ‑ ‑
KIRBY J: You have the other argument in Victoria that there was a specific Law Reform report. Did that address the position of barristers as well?
MR YOUNG: The 1994 law?
KIRBY J: Yes.
MR YOUNG: Yes, it addressed the position.
KIRBY J: That was undifferentiated as to legal practitioners.
MR YOUNG: It did not differentiate, no, but we have, of course, in Victoria the more specific example of preserving the immunity in section 442. We would say that there is no demonstrable change, let alone a radical change of the kind spoken about in the authorities as being necessary, in community values or standards or in the functioning of courts or advocates since 1988 that would require some reconsideration of such a longstanding public policy rule. Can I turn to the position of witnesses and go directly to Darker.
KIRBY J: If you are right about your statutory argument and about the principle of adhering to Giannarelli and not changing it, then you do not need to go into anything else at all, is that correct? You are a time capsule?
MR YOUNG: Mr McIvor is a time capsule, subject to the matters raised by Chief Justice Gleeson.
KIRBY J: Unless you take those steps, overrule Giannarelli and apply a new principle of the common law, Mr McIvor just walks ‑ ‑ ‑
MR YOUNG: Well, he has the happy advantage of falling under section 10(2), if it answers the question in the way in which we have submitted, but it may ‑ ‑ ‑
GLEESON CJ: I suppose he has the happy advantage of being able to say because of that time element in the section, “Don’t talk to me about changed circumstances in the last 20 years”.
MR YOUNG: Yes, your Honour, that is so.
KIRBY J: “I am back there in 1890”.
MR YOUNG: But the argument is subject to the counter‑arguments or the counter‑issues that Chief Justice Gleeson has identified, so we do need to go further. But our first point is that the nature of the rule and the circumstances that have prevailed in Australia and, in particular, in Victoria afford a strong argument why the rule should not be reopened. It should be a matter for Parliament if it is to be changed and in Victoria Parliament considered a recommendation that it change the law and, in our submission, plainly rejected it.
Moreover, it rejected it right in this very period that we are talking about for McIvor. It was considering this recommendation between 1994 and 1996 and it enacted legislation with effect from 1 January 1997 rejecting the proposition. That traverses the very time period in which the alleged conduct by McIvor occurred.
KIRBY J: Do you know of any case in the Commonwealth of Nations where a legislature has taken on the Bar and enacted a change in the law relating to liability of barristers?
MR YOUNG: The short answer is no.
KIRBY J: Dr Nkrumah, when he was the supreme leader of Ghana, ordered that barristers should not wear wigs and that judges would not see them and the barristers would not throw them away and to this day they still wear them.
MR YOUNG: Funny you should say that, your Honour, there is a similar provision in the Legal Practice Act 1996 (Vic).
GLEESON CJ: Could I just ask a further question about Mr McIvor’s position and the position of other people like him. I understand now – I say “understand” because it has happened since my time in the profession – that barristers have to take out compulsory insurance. Is that the case in Victoria now?
MR YOUNG: Yes, section 226 of the 1996 Act imposes that obligation.
GLEESON CJ: Was it an obligation in force at the time of the events with which we are concerned in this case?
MR YOUNG: I will check that. I do not believe there was an insurance obligation. I am not sure.
GLEESON CJ: The reason I asked the question ‑ ‑ ‑
HAYNE J: That is not my memory, Mr Young. I think compulsory insurance was there when I was at the Bar in 1992.
MR YOUNG: Yes.
GLEESON CJ: The reason I asked the question is this, Mr Young. The forms of insurance policy that are taken out pursuant to schemes or requirements of insurance are commonly affected by understanding at the time as to extent of the liability, or potential liability, requiring cover. If Parliament engages itself in legislation in relation to professional indemnity insurance and it also engages itself in legislation concerning liability for professional negligence, it seems to me at the moment that those two forms of legislative activity are closely related to one another.
MR YOUNG: We would accept that, your Honour, yes. There may also be a relationship, as Justice Hayne observed, about the remedies provided in the 1996 Act, those two matters.
KIRBY J: Could you send a note in about that, because if there was insurance in 1992, as Justice Hayne remembers, then it may be relevant to know that fact.
MR YOUNG: Yes, there certainly was insurance, the only issue was whether it was statutorily required.
HAYNE J: Not, I think, by statute. My recollection is, it was Bar rule.
MR YOUNG: Yes, your Honour is certainly right about that. The Bar rules required a barrister to maintain insurance.
CALLINAN J: It was the same in Queensland. You could not be a member of the Association.
MR YOUNG: Yes, I was addressing the question – when I said I was not sure abut it – whether the statute, the 1958 Act, required it.
GLEESON CJ: Then there would also be a question of what the insurance covered and what the insurance did not cover, because the terms of the insurance arrangements would be likely to have been affected by the understanding of the parties as to their potential liability – as to the potential liability of the insured.
MR YOUNG: Yes. No doubt, your Honour, in 1996, we would say that the terms of insurance would reflect the extent of liability as defined in Giannarelli.
CALLINAN J: And like all professional or all indemnity insurance, directors’ insurance, the policies would be written on a “claims made” basis, so you could be looking a long time into the future.
MR YOUNG: Yes, your Honour. I was going to answer a question Justice Hayne raised yesterday about the regime in the Act for professional conduct. Just to add to your Honour’s references, section 137(iv) defines “misconduct” as including:
unsatisfactory conduct that amounts to a substantial or consistent failure to reach reasonable standards of competence and diligence –
There is a similar definition of “unsatisfactory conduct”, or a similar element, in paragraph (a) of that definition. The complaints regime is essentially that one can complain about conduct by going down three pathways: the Ombudsman, the Legal Practice Board or what is called the RPA, which in this case is the Bar Council. There are powers of investigation of any such complaints. The relevant provisions – section 138 is the three pathways of complaint ‑ ‑ ‑
KIRBY J: What is the point you are presently making?
MR YOUNG: Just to round off a point that Justice Hayne asked about the other day, namely, there is a sanctions regime for professional conduct involving failure to reach standards or of competence or care.
KIRBY J: Yes, but that is in every profession. Doctors have it, the dentists have it, the architects have it, clergy have it, everybody has it.
MR YOUNG: Yes, but there is a power to make compensation orders in that regard, introduced for the first time in the 1996 Act.
KIRBY J: But that is a sort of alternative dispute resolution, is it not? That does not take away people’s legal rights, whatever they may be.
MR YOUNG: No, not necessarily, but it is part of this package of matters that Parliament addressed in the 1996 Act. Our argument is that it is plain that Parliament was proceeding on a footing that they were not intending to abrogate the immunity, rather, they were intending to act on the footing that it was preserved.
KIRBY J: This was the legislation that followed the Victorian Law Reform Commission ‑ ‑ ‑
MR YOUNG: Yes, it is, your Honour. I just draw attention to section 159(1)(a):
If the Tribunal finds a legal practitioner or firm guilty of unsatisfactory conduct, it may make . . .
(a) an order referred to in section 133(1)(a) –
which is a compensation order up to an amount of $15,000. I said I was about to turn to Darker, if I may ‑ ‑ ‑
GUMMOW J: What do you get out of Darker?
MR YOUNG: Well, we get this out of it, your Honour, that, first, it accepts that there is a general immunity of witnesses not confined to negligence but extending to other ‑ ‑ ‑
GUMMOW J: They had read what Justice Starke said 60 years ago.
MR YOUNG: Yes, they did, your Honour.
GUMMOW J: Well, why is that a revelation to us?
MR YOUNG: Well, it contrasts with Hall v Simons where two members of the majority, I think it was, said that no assistance was to be gained from witnesses’ immunity because it was confined to a claim based on words spoken in court where the words used were the subject of the cause of action or the essence of the cause of action. That is quite clearly wrong. The protection is much wider. It extends to defamation. It extends to conspiracy, for instance, and that has been specifically determined.
GUMMOW J: What you are saying is that the House of Lords seems to be speaking with two tongues.
MR YOUNG: Quite, yes.
GUMMOW J: How does that worry us?
KIRBY J: The poor old respondent did not even get one of their Lordships from the ‑ ‑ ‑
MR YOUNG: There are two other aspects of Darker, your Honour. One is that ‑ ‑ ‑
GUMMOW J: And that is a product of having a widely constituted pool of panels.
MR YOUNG: Yes. There are two other things we get from it, your Honour. One is the immunity of witnesses is not confined to what is said and done within the four walls of the courtroom, for very good reasons, and the reasons are explained why that would be artificial and inappropriate.
GUMMOW J: It does not go so far as to get these policemen off the hook.
MR YOUNG: No, because they were fabricating evidence. But, thirdly, the reasons given for extending the immunity of witnesses to causes of action beyond what is said and extending it beyond the courtroom are the identical reasons that support the similar scope of the advocates’ immunity.
KIRBY J: Everyone agreed with Lord Hutton from Northern Ireland, and he had dissented in Hall. He was busily writing away in Darker and he won the day in Darker, but if Lord Steyn and Lord Browne‑Wilkinson ‑ ‑ ‑
MR YOUNG: The other point I would make is – I will not take the Court through particular passages, but the cases reviewed give a clear picture of the scope of a witness’s immunity. It not only extends to the preparation of a witness statement, it extends, to some extent, to the actual collection of evidence ‑ ‑ ‑
GLEESON CJ: Does it extend to a situation where a case is settled and never actually gets to court?
MR YOUNG: Yes, your Honour. That is specifically stated in Lord Clyde’s judgment, 458F.
GLEESON CJ: Does it extend to a case which is settled and never gets to court because of the witness’s opinion?
MR YOUNG: Yes. Stanton v Callaghan, the preceding 1998 Court of Appeal decision which was approved in Darker, was exactly that case. An expert witness had provided a statement, he went to a pre‑trial conference, he resiled from his opinion at the conference, his client was forced to settle the case. The client then tried to sue the expert witness for negligence in the preparation of the statement from which he resiled, and it was held that witness immunity extended to that situation.
GLEESON CJ: Does it extend to a case in which the witness has expressed an opinion that the party who engaged the services of the witness has no prospect of success in the case, and for that reason the case is settled or discontinued?
MR YOUNG: I do not think it extends to that precise situation, usually because the facts addressed by the witness are more specific than that.
HAYNE J: The medical report that is obtained for the plaintiff that says, “The plaintiff is a malingerer and has no case”. Assume that finds the light of day for some reason ‑ ‑ ‑
MR YOUNG: Yes, we would say it extends to the preparation of such a report. One example is a building expert saying that method A would solve the problem of the poorly constructed house. Settled on that basis, method A proved to be wholly inadequate, expert sued, immunity applied.
KIRBY J: So it extends to the case, in your submission, where the most egregious failure to address a matter of common professional knowledge exists?
MR YOUNG: Yes, your Honour.
KIRBY J: How does that fit in with the liability of, say, a solicitor for giving advice, or a barrister for giving chambers opinions? I mean, it does not seem to jell.
MR YOUNG: It jells in this way, your Honour, if the function that the witness is performing is related to the trial process, the freedom from liability extends to anticipatory steps that are part of the preparation of evidence for the trial process.
KIRBY J: You do not even like “intimately connected”. It has just got to be connected in some way. “Intimate” has slipped out of this discourse.
MR YOUNG: No, your Honour. We say the correct approach is that of Lord Diplock, who put a tight harness on it in Saif Ali.
KIRBY J: So we are going backwards in this area?
MR YOUNG: No.
KIRBY J: Just not going forward.
GLEESON CJ: If an architect gives an opinion to a house owner that is negligent and the house owner suffers loss as a result of that, the architect can be sued. But if you retain an architect to give advice in a building case and the architect advises you that in his or her opinion you have no case and so you settle or do not bring the claim at all, the architect cannot be sued.
MR YOUNG: Provided the court is satisfied that what the architect did was part of the preparation of evidence for the trial process. The English cases, Stanton v Callaghan and Darker, specifically discuss the question of “Where do we draw the line?”, and they accept that in some cases it is going to be difficult to draw the line, but it is artificial to draw the line at the door of the court. It has to be a functional or purposive test. Some of the cases discuss what your Honour has raised with me. The question becomes, “Is this really independent advice that the expert is giving, or is it part of the preparation of evidence for the trial process?” If it is the latter case, the immunity applies.
GLEESON CJ: Well, speaking purely personally, I, for my part, do not have a great deal of problem with the proposition that the architects immunity from suit does not depend upon whether he has crossed the threshold of the door of the court. But what about a case in which, because of the architect’s opinion, the case never happens, there never is a case, no litigation is ever commenced because the expert witness has said, “Your case is hopeless”?
MR YOUNG: Well, we would submit that that has good claims for coverage by the rule, but there is debate about that in the English cases, just as there has been debate about settlements. Kelley v Corston was a debate about whether a pre‑court settlement was protected by the immunity. The court said it surely is where it happens in close connection with the court process, either after the case has started or at the door of the court, and it certainly is the case that it is protected where the court has to approve the settlement, but there may be other cases of settlement where, at least the Court of Appeal in Corston’s Case, said they might fall outside the protection.
GLEESON CJ: You see, in this case with which we are concerned we are dealing with something that is very much akin to an advice to settle, are we not?
MR YOUNG: Well, it has some similarities, your Honour, but, on the other hand, an advice whether to plead or not plead to a charge is really going to have a fundamental impact upon the course that the proceedings thereafter take, because it does not bring the proceedings to an end. It is a step in the proceeding and, moreover, it involves an assessment of what is likely to transpire if the defence is run: is it credible, and so forth. So it has some dissimilarities too, your Honour.
HAYNE J: In that connection, I, for my part, would be assisted by a note or reference to the statutory provisions that regulated at the relevant time entry of plea at committal. My untutored memory is that it was open to an accused person at committal to reserve the plea, entering no plea. If I could at some point have a note of the relevant ‑ ‑ ‑
MR YOUNG: Yes, we will give you a precise reference.
HAYNE J: Thank you.
MR YOUNG: But your Honour’s recollection is correct, a plea could be reserved. There were, of course, the provisions to which we referred in our written submissions about a warning being given immediately before the plea was entered as to the use that could thereafter be made of it.
HAYNE J: That is the warning under the regulations.
MR YOUNG: Yes, your Honour.
HAYNE J: Yes.
MR YOUNG: But we will give your Honour the full reference to the relevant provisions.
HAYNE J: Thank you.
MR YOUNG: Can I turn away from witnesses’ immunity to address a matter that was raised yesterday morning. In our submission, it constitutes one of the main pillars, or public policy grounds, for the “no liability” rule. That is really the policy in favour of finality, and I particularly want to address causation issues – not causation in fact issues but causation in the way in which it constitutes a public policy ground for the existence of the advocates’ immunity.
Now, firstly, it is our submission that we are not simply concerned with a public policy that protects a subsisting judicial decision in the first trial from collateral attack. That is one important aspect of it, but the public policy concern is wider. It is that the relitigation of a negligence claim arising from the conduct of an earlier trial will involve a trial within a trial and that of and by itself, because of the causation requirements that would have to be established, is something that would tarnish the judicial process and would be contrary to the public policy.
Now, can I ask the Court to go to Rondel v Worsley [1969] 1 AC 191 and the judgment of Lord Morris firstly. I want to take the Court to page 248. Now, three‑quarters of the way down 248, Lord Morris poses some questions directed at the policy against relitigation. Lord Morris then, through 249 and following, addresses the causation issues that would arise if negligence claims of this kind were permitted to be litigated. Now, it is a very lengthy passage and I will not attempt to read it or really ask the Court to do so, but simply to note it. At 249E his Lordship rightly says, in the negligence trial:
Presumably they would have to review all the evidence that had been given in the criminal case.
Between F and G his Lordship says:
the civil jury would in effect be required to be engaged in a re‑trial of the criminal case.
Then at 250, between A and B, his Lordship observes:
If in the civil action the suggestion was made that, had there been further evidence called or further questions put in the criminal case, there might have been a disagreement rather than a conviction, this only serves to demonstrate how difficult it would be for a court to decide on a balance of probabilities what the jury in the criminal case would have done had there been different material before them. A trial upon a trial would raise speculation upon speculation.
His Honour further elaborated those reasons in the rest of that page.
At 251, just below A, his Lordship went on to say that:
Many of these considerations have parallel validity in regard to complaints of lack of care and skill in a civil action.
At C, his Lordship said:
it would, in my view, be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by‑product after the trial of an action and after any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain‑like course of litigation.
Now, that very much addresses the causation problems as a reason for the no liability rule existing. That is further taken up by Lord Diplock in Saif Ali [1980] AC 222, if I could turn to that. His Lordship gave two reasons for upholding the immunity. One was the singular protection of all court participants – on the first part of the page – and then at D, he turned to the second reason, “the need to maintain the integrity of public justice”. In that paragraph, between D and F, his Lordship rightly identifies the supposition that founds the second case and he goes on to say:
The client cannot be heard to complain that the barrister’s lack of skill or care prevented him from obtaining a wrong decision in his favour from a court of justice. So he must prove that if the action had been conducted competently by his counsel he would have succeeded instead of failed.
Just below G, he observes that:
a re‑trial of any issue decided against a barrister’s client in favour of an adverse party in the action in respect of which allegations of negligent conduct by the barrister are made would be an indirect consequence of entertaining such an action.
He pointed out the causation‑related difficulties of such a retrial in the following paragraph, from H at 222 to about 223.3.
GLEESON CJ: What, if anything, would there be to stop you calling the trial judge as a witness?
MR YOUNG: In Rondel v Worsley and Saif Ali, observations are made that it would be contrary to public policy to call the judge. So far as I am aware, there has been no determination, but the assumption has been made that it would not be tolerated, on public policy grounds, by a court.
HEYDON J: There is an English case in which I think Lord Woolf in the Court of Appeal held that the judge is not competent or compellable.
MR YOUNG: Yes.
KIRBY J: I thought we have had cases in Australia, too, where litigants in person have sometimes sought to call ‑ ‑ ‑
MR YOUNG: We have made the assumption that it would not be possible. There is a question about jurors. The Juries Act (Vic) does not have a prohibition on calling jurors, but, again, presumably public policy might lead to the same conclusion.
KIRBY J: The applicant seeks to meet these arguments by two points, one, that in this case we do not have the clash because he succeeded in the second trial, and, two, he reads a passage from one of the English cases which said, “Better that in the end we allow a person a remedy than that we prevent them from having a remedy if they are entitled to a remedy”.
MR YOUNG: The second passage is from Justice Krever in Demarco in Canada. The first point does not really withstand analysis for several reasons. First, the reason given by Lord Diplock at 222E to F. Whatever happened at the first trial, it will still be a question of whether it was a right or wrong decision to acquit him. The majority of cases accept that the innocence of the plaintiff in the negligence claim is a precondition to him bringing a claim for damages for negligence.
GLEESON CJ: But the situation they appear to have reached in England – correct me if I am wrong – is that in a criminal case a client who has been wrongly convicted but whose conviction has not been overturned on appeal cannot sue the barrister for negligence, but a client whose conviction has been overturned on appeal can sue the barrister for negligence. Is that the position in England?
MR YOUNG: That is the position formulated by a majority of the House of Lords in Hall v Simons.
HAYNE J: That seems to draw attention to one level of contrariety, namely, between conviction unupset and subsequent action saying it should not have occurred. Yet it ignores the contrariety that exists in the present case where complaint is made of the imprisonment suffered, that imprisonment being not said to have been unlawful but lawful imprisonment which later is said to be something that can be a cause of complaint.
MR YOUNG: Yes, we would agree with that, your Honour.
HAYNE J: So the contrariety needs to be examined rather more carefully than in terms of verdict only.
MR YOUNG: Yes. The American cases have examined these sorts of issues and we have provided your Honours’ tipstaffs with some material which we will come to shortly. But the problem of causation will arise whether or not the conviction is subsisting or has been set aside. For instance, it may have been set aside on technical grounds. The principle that Lord Diplock refers to is that a precondition to a negligence claim is that there was a wrong decision at the first trial. So it is going to be open to the barrister by way of defence, directly or indirectly, to lead evidence that puts in question the earlier decision, whether it be a conviction or an acquittal.
If I can turn back to Chief Justice Gleeson’s observation concerning Hall v Simons. I said the majority of the House of Lords indicated that that would be the approach. That really is a statement to the effect that an abuse of process rule, not at the moment formulated as being directed to that situation, would be adapted and expanded to constitute an absolute rule that you cannot challenge or you cannot run a negligence case in circumstances where the conviction is subsisting. That is an adaptation of the abuse of process rule to provide an alternative control mechanism to the immunity that currently exists for criminal cases. Now, we doubt that abuse of process can be easily reordered in that fashion, but it involves substituting the case‑by‑case approach to something that in the public interest is now dealt with by a clear bright line rule.
Now, there was a question of whether that is the step that should be taken in the public interest, and it is the sort of question raised by Lord Morris in Rondel v Worsley. Lord Hoffmann spoke about burning down the house to roast the pig, and I perhaps should hesitate to say this, but the idea of substituting a case by case abuse of process rule in the criminal field really amounts to chasing the greasy pig. You are going to have a rule that varies, with no real predictability, depending on the circumstances of a particular case as to whether litigation can be brought.
HAYNE J: The adoption of an abuse of process approach seems to ignore the consequence that necessarily follows from the premise for debate. The premise for debate is that the consequence of which complaint is made not only has not been but cannot be remedied in the original suit. It cannot be remedied in the original suit because of the application of various rules directed to the finality of proceedings. To substitute an abuse of process argument seems to shift debate, but shift it by ignoring the premise and the consequences that follow from it.
MR YOUNG: Yes, we agree with that, your Honour. We would add to it, if we may, in this fashion. The first premise is that the earlier trial’s outcome was wrong in fact. That is the premise to which Lord Diplock refers. The second premise is that if this immunity goes and no longer exists, then prima facie there is nothing wrong with a negligence suit being instituted. The Canadian cases have observed that abuse of process is no answer because, once you remove the immunity, how can it be an abuse to do the very sort of thing, that is, to call in question an earlier process and an earlier decision, when you are free to do so, and the courts have said you are free to do so, by removing the immunity rule? It seems to be a contradiction in terms. You then have an overlay, called “abuse of process”, but, really, it is another way of expressing a limited immunity rule. You have immunity where there is a subsisting judicial decision.
GLEESON CJ: In the area of civil actions, does a barrister have an immunity if asked to advise on whether the client has a cause of action, and the barrister advises, “No, there is no cause of action”, so no proceedings are ever commenced?
MR YOUNG: I think there is some doubt about that, your Honour.
GLEESON CJ: What is the difference between that and this case?
MR YOUNG: In this case, your Honour, the proceedings were on foot, the advice was advice as to whether, in court, the accused should take a particular step that had consequences for the ongoing conduct of that criminal proceeding. It would or would not lead to a presentment, indictment, trial, either on the basis of a plea of guilty or a plea of not guilty.
GLEESON CJ: Do you mean, in this case, it was not up to the present appellant to decide whether there was going to be any court proceedings, that was a matter for the prosecuting authorities?
MR YOUNG: Yes, that is so.
GLEESON CJ: The only decision that the present appellant had to make was what attitude he would take in those court proceedings?
MR YOUNG: Yes.
KIRBY J: But the attitude, of course, altered the whole future conduct of the Bar.
MR YOUNG: Yes.
HAYNE J: No, it did not. Why? His plea on arraignment would, but his plea at committal did not.
KIRBY J: That is a formal difference though, is it not?
HAYNE J: No, it is a fundamental difference.
MR YOUNG: It was a step that had consequences for the trial is how I should have answered your Honour.
KIRBY J: It certainly did, and it had consequences in whatever happened because it could be used in the event that he sought to change his plea. That is one of the three complaints.
MR YOUNG: Subject to the discretion of the trial judge as to whether it should be admitted into evidence. Here, your Honour, it was identified the other day that an error made by counsel for the first trial was not taking exception to the charge. That was not the only error. The other, perhaps deeper, error was that although the admission of the plea was objected to from the Bar table, that was not backed up by calling evidence as to the circumstances in which the plea was made, as was done at the second trial. No evidence was led to support the objection to the introduction of the plea, as it should have been.
KIRBY J: You mean on a voir dire?
MR YOUNG: Yes, on a voir dire. So it was not just a failure to take exception of the charge that was something that might be complained about as to the conduct of the first trial. Here, factually, your Honour, if this case were to go forward, you would have a necessity to call evidence about what transpired at the first trial, including the mistakes that were made by counsel at the first trial.
KIRBY J: You have not dealt with Justice Krever’s view because you would know as well as I that for every passage in the law books that says finality is a wonderful thing, there are others that say finality is important but getting to justice in the end is even more important.
MR YOUNG: Your Honour, it comes down to where the balance lies in relation to the public interest in the administration of justice and that balance has been long ago struck and you would need some, we would say, very rigorous bases to overturn the balance that has long been struck.
Just while we have Lord Diplock’s passage there, I wanted to draw attention to the observation made he made at page 223B, where he says two questions “would become hopelessly entangled”. That is part of this causation issue as a public policy consideration. The two questions are whether the decision in the first trial was wrong, whichever way it went – acquittal, conviction, et cetera. The second question is the causation question, whether:
it was the negligent act or omission of the barrister . . . that caused the wrong decision –
And it is the entangling of those two questions that would be adverse to the public interest. Any further litigation would necessarily involve a trial upon a trial or a trial within a trial, as the Americans say, because those two questions are involved.
Now, can I turn very briefly to an identification of elements in any retrial of a criminal case that would involve real problems that may put the administration of justice into disrepute. Firstly, it would be impossible to recreate the circumstances of the first trial, and that is a point made in Rondel v Worsley by Lord Morris. Different evidence, different representation, different questions, maybe different witnesses, a different standard of proof – one civil, the other criminal; if it was a jury verdict in the first trial, no reasons; there may be a jury in the second trial – there is a right to choose a jury in Victoria. The second trial would affect the vital interests of other parties: the complainant in a rape case, maybe other witnesses in a sexual assault case, maybe the children of a marriage in a family law case concerning custody. So other vital interests are going to be affected.
Lord Hoffmann noticed that in Hall v Simons, if I may say this, and said, “We may have to prevent relitigation or civil claims being brought in such circumstances where third party interests are affected and we would have to create some unspecified exceptions for that”.
GLEESON CJ: In the present case, if it proceeded to trial, could your client set out to prove that the appellant was guilty of the rape?
MR YOUNG: We would say yes, but it might arise directly, as simply something undertaken, because, as Lord Diplock says, it is a precondition of the second trial that the first decision was wrong.
GLEESON CJ: Now, there is a line of authority – and I cannot bring the cases to mind at the moment – that turn around an expression “giving a person the full benefit of his acquittal”. How would that answer that you just gave me be consistent with the entitlement of a person to the full benefit of his acquittal?
MR YOUNG: Your Honour, I understand that interest, but it would have to be balanced against the need to give the defendant the full benefit of his right to present a defence.
GLEESON CJ: That is what I am trying to understand, how that balancing exercise proceeds.
KIRBY J: But is the guilt or otherwise of the accused relevant to the issue ‑ ‑ ‑
MR YOUNG: Your Honour, Lord Diplock has said it is relevant. It has been accepted as relevant in Canada. It has been accepted as relevant in the US – indeed, in the US as a precondition to the ability to bring a case that the plaintiff in the negligence case prove his innocence.
KIRBY J: Is that on a public policy ground?
MR YOUNG: Yes, it is.
McHUGH J: No, it must go beyond that, must it not? As a matter of principle, he must prove his damage.
MR YOUNG: Yes, your Honour is right. It is part and parcel of proving proximate cause and damage.
KIRBY J: Yes, but under our accusatorial system the damage is that you did not get a fair and proper trial. It is not that you were innocent and were entitled to acquittal on that ground. That is not how we run criminal trials.
MR YOUNG: No, the approach adopted by the Americans is that unless you can prove you are innocent, you have suffered no damage because you got your just desserts, as it were.
KIRBY J: It sounds a very dubious principle and inconsistent with the accusatorial trial.
MR YOUNG: But the other way it is put in the American cases is that ‑ ‑ ‑
McHUGH J: The fact that you have not had a fair trial is irrelevant if you are acquitted.
MR YOUNG: The other way it is put in the American cases, if I may finish answering Justice Kirby, is that you cannot demonstrate proximate cause – they have a different causation test than we do – if you were truly guilty, because that will be regarded as the real or substantive cause of the loss you have suffered, and not any negligence by your counsel.
GLEESON CJ: We do not have to speculate about this. The damage is particularised on pages 11 and 12 of the application book. The damage is being sent to prison.
MR YOUNG: Yes.
KIRBY J: That is, he says, because of the way he was not properly advised – not advised about the three elements that he now complains about. I just think it is wrong to introduce the issue of innocence. Judges often do so, they say guilt or innocence, whereas the search in criminal trials is guilt or non‑guilt, proof by the Crown.
MR YOUNG: Well, we would say that the weight of authority really does indicate that innocence or not is a vital issue in the second trial proceeding.
KIRBY J: That is inconsistent with our system, in my opinion.
GUMMOW J: One has to take Helton v Allen on board, does one not?
MR YOUNG: I am sorry, your Honour?
GUMMOW J: Helton v Allen (1940) 63 CLR 691 at 709 to 710.
MR YOUNG: I am not familiar with the passage, your Honour.
McHUGH J: Well, Helton was acquitted of murder, and then in a probate said on the will the jury found, as a fact, that he had murdered the deceased.
HAYNE J: It is not the only case where there has been trial for murder on affidavit.
MR YOUNG: Yes, these issues will inevitably arise once the immunity is removed, as they have in the United States in recent years.
GLEESON CJ: Have you given us references to those United States authorities in your submissions?
MR YOUNG: Yes, we have provided a bundle of the cases this morning and some references to some articles. I said the question could arise directly, for the reasons I have just articulated. It might arise – we do not say this is the present case, but it might arise as a relevant issue in another way. Take a case where a barrister has in his brief material that really explains why he decided not to call the particular witness, and, if that material had been before the court, it would have pointed on other grounds to the guilt of the acquitted plaintiff in the negligence suit. Now, surely the barrister can lead that material, notwithstanding that it was previously privileged and not before the previous court, to defend himself by saying, “I was not careless. I made the decision I did because I had this information in my brief”.
KIRBY J: But if it is privileged and it cannot presumably be got into the trial ‑ ‑ ‑
MR YOUNG: It depends on imputed labour. Mann v Carnell – has the plaintiff in a negligence suit waived his privilege in the material he previously provided to the barrister, or which was previously in the barrister’s brief, by suing the barrister for negligence?
KIRBY J: That seems to get rather close to the barrister substituting his view of the guilt or innocence of the client, rather than helping the client in the way the court ‑ ‑ ‑
HAYNE J: It is not a decision that counsel has to make in running a criminal trial about whether or not, for example, he is going to call the accused. It is a daily decision, I would have thought.
MR YOUNG: Yes. This Court has pointed out, on a number of occasions, the problematical nature of investigating those decisions. It did so recently in TKWJ v The Queen (2002) 212 CLR 124. Your Honour Justice Hayne referred to obvious difficulties in investigating those sorts of decisions, but ‑ ‑ ‑
KIRBY J: I hate to introduce a jarring note in this dialogue, but it still remains to answer the question. Counsel’s role is not to pre‑judge the client. Counsel’s role is to represent the client, and to do so competently.
MR YOUNG: But if counsel ‑ ‑ ‑
KIRBY J: The complaint here is that that was not done.
MR YOUNG: We would say this, your Honour. If counsel made a decision not to call a particular witness and that is then made the subject of an allegation of negligence, and counsel’s brief contained material indicating the dangers that would be involved in calling that witness, surely counsel can lead that evidence in a negligence trial to demonstrate that he acted with reasonable care. We cannot see any public policy ground for excluding that.
KIRBY J: But do you accept that it is negligent on the part of counsel not to advise a person pleading guilty that if that plea is subsequently withdrawn or sought to be withdrawn, that that puts the accused at risk?
MR YOUNG: I would give the same answer Mr Jackson gave. You would expect counsel to provide advice as to the consequences of the plea. But, indeed, the ‑ ‑ ‑
KIRBY J: That does not seem to be intimately connected with the conduct of the trail. That is something that is anterior to the trial.
MR YOUNG: Your Honour, we would say that the committal, even though it can be characterised as ministerial or administrative, is really a first step in the criminal trial process. Depending on what occurs there, it results in presentments and so forth. It is really artificial to say that it does not have a real and vital connection with the criminal trial.
McHUGH J: Tamper with a witness and see how you would go on a charge of conspiracy to pervert the course of justice.
MR YOUNG: Yes, your Honour.
CALLINAN J: And the passage that the first respondent extracted from R v Murphy in paragraph 45 of the first respondent’s submissions really indicates the critical importance of the committal proceeding.
GUMMOW J: It is part of the same constitutional matter, what that case decides.
MR YOUNG: Yes. Can I indicate some other elements that might arise. I have referred to privileged material in counsel’s brief. It seems to us, as we have indicated in our written submissions, the complainant or the victim would have to be called to give evidence again. There would be a question whether the constraints on cross‑examination in our Evidence Act would apply in that circumstance within the framework of a criminal trial, would apply in the later civil negligence suit. In other words, are there any constraints to apply to the examination of the complainant in the later case. The statute says these constraints apply in the criminal trial.
The American cases have raised questions about whether a legally obtained evidence that was excluded in a criminal trial, can that be led in the civil trial. There are a host of difficult issues and much of this evidence may well tarnish, to use Sir Anthony Mason’s words, the judicial process if you have this trial upon a trial. Whether or not it impugns the earlier decision you may have a tarnishing of the process.
The Americans also have what is called a collateral estoppel rule. If you have raised in confidence of counsel as a ground of appeal in your criminal trial and failed, notwithstanding there is a gap between miscarriage of justice and negligence, you are thereafter estopped from using that as a basis for a negligence claim against your solicitor or attorney.
The short point is that in the US and Canada they are very different, not just because of the nature of the legal practice, but because other control mechanisms have been introduced to do the work that the immunity rule does in our jurisdiction. It is no use saying they have no immunity rule. They have lots of other rules to address the problems of relitigation.
GUMMOW J: Collateral estoppel is a good example of that.
MR YOUNG: It is, your Honour, yes, because it bears little relationship to res judicata and issue estoppel because it applies in favour of the attorney who was never a party in the original proceedings.
GUMMOW J: Yes, that is right.
MR YOUNG: We have given the Court some references to that material. I am conscious I have taken quite a while this morning.
KIRBY J: Could I ask you a question relating to the differential position of the two respondents?
MR YOUNG: Yes, your Honour.
KIRBY J: In the practical world, one would expect that an accused with counsel would rely overwhelmingly on the advice of counsel. You raise here a special and particular statutory issue which has to be dealt with, but in these proceedings, would one have to work on the basis that the respondent’s solicitor or the authority representing the solicitor, must be taken to be an entirely separate and co-equal position or does one look at the practicalities that in most matters counsel’s advice is what is really significant and causative for what follows?
MR YOUNG: The true position would be the second of those, your Honour, but the difficulty in this proceeding is that it is undertaken on the pleadings and the pleadings are ambiguous as to whether the relationship was what you would expect ‑ ‑ ‑
KIRBY J: Of course, that is the product of a stay application that it did not go to trial.
MR YOUNG: It is, your Honour, but the pleading is ambiguous as to whether the solicitor was advising independently of the advice of counsel. We would say, in accordance with the General Steel principle, you read any such ambiguity in favour of the respondents and so you would proceed on the basis that it is certainly within the allegations to consider the position of a solicitor simply acting in support, as it were, of the view expressed by counsel.
KIRBY J: I am not sure, does one read it in favour of the respondents or does one read it in favour of the applicant on the basis that the applicant has not had his day in court?
MR YOUNG: No, General Steel indicates that you read it against the pleader on the basis that, if there is any ambiguity, you read it as encompassing the lower of the two. In other words, you do not take the plaintiff’s case at its highest; you take it at its lowest.
KIRBY J: That surprises me. I thought you do take it at its highest on the basis that the plaintiff has not had the opportunity to call the evidence that adds to the bare bones of the pleading.
MR YOUNG: You accept the pleading insofar as it is clear, but that does not seem to be the position in Australia in relation to ambiguities. General Steel seems to be leading case and it is a passage in the judgment of Sir Garfield Barwick. We have referred to it in our written submissions. Now, I wanted to say several other things, really quite shortly. The first concerns criminal cases. We obviously rely upon the New Zealand Court of Appeal but ‑ ‑ ‑
KIRBY J: What, fully?
MR YOUNG: No, in saying that there is an overwhelming case for retention in criminal cases, but can I say this ‑ ‑ ‑
KIRBY J: Is the reason for that because in criminal cases there is built into the criminal appeal statutes protections against miscarriage of justice that go back to the fundamental character of the criminal trial, or is there something extra?
MR YOUNG: Only Lord Hobhouse seemed to rely upon that. He thought the accused’s interests were non‑economic for that reason, but the more general reason given in New Zealand and in the House of Lords was that the traditional arguments in support of advocates’ immunity bit with particular force in the criminal context. We do not need to go beyond the criminal case, of course, but we would say those arguments really do not seem to have any logical differentiation between the civil and the criminal context.
The point I wanted to refer to was that in Hall v Simons and in Lai both courts drew attention to the fact that appeals alleging miscarriage of justice arising from counsels’ incompetence may be made more difficult by eliminating the immunity in criminal cases. The reason is that there are practices in such cases of getting a statement from counsel who allegedly acted incompetently or negligently in the first trial to assist in dealing with that ground of appeal. The suggestion made in both the House of Lords and in the Court of Appeal in New Zealand is that to remove the immunity in criminal cases will probably disable the appeal court from getting assistance in that kind of appeal. We would submit that has some force. That is Lord Hope at 719B to E, Lord Hobhouse at 747C to D and Justice Laurenson at page 400, paragraph 122.
Now, I do not want to address any additional remarks beyond our written submissions about the duties of counsel, save for this observation that Lord Pearce in Rondel v Worsley made the observation that there is a delicate balance in our judicial system in which the duties of counsel, the “cab rank” rule and the immunity play an interconnected role. If any one of those elements is significantly altered, it may have repercussions for other aspects of the balance. We would say that that is a good point.
KIRBY J: But we were told that there are exceptions in Victoria for the “cab rank” rule if you have not expertise in the particular field.
MR YOUNG: The observation that fees could be raised is wrong. That is prohibited by the rules and the rule is enforced by the ethics committee. The position in Victoria is that the rule is strictly adhered to.
KIRBY J: Yes, but surely if counsel does not feel they have competence in a particular field, they are not obliged to accept a brief.
MR YOUNG: If counsel does not feel that he is competent in a particular field, that is right, that is an exception.
GLEESON CJ: I thought the rule actually referred slightly differently to whether you hold yourself out as practising in a particular area.
MR YOUNG: That is so.
GLEESON CJ: My recollection of the rule is that you are obliged to accept a brief in any area of practice in which you hold yourself out as practising if you are offered a proper fee.
MR YOUNG: Yes, that is so. W can provide, along with the note we have been asked for, extracts of the relevant rules.
KIRBY J: By definition, you are holding yourself out.
MR YOUNG: Yes, but you may disclaim any practice skills in a particular area. In my case, I can name a few.
GLEESON CJ: Barristers these days actually publish the areas in which they hold themselves out as practising, do they not?
MR YOUNG: Yes, they do. In Victoria the clerks’ website contains a list of areas of practice for each barrister.
HAYNE J: The relevant rules are rules 85 and following appearing behind tab 7 in the material.
MR YOUNG: Yes, and also, I think, 113, your Honour.
HAYNE J: Yes.
McHUGH J: What is the situation with counsel – let us say I am member of the criminal Bar who is able enough to appear in criminal appeals but does not want to, just wants to do trials or, for instance, may regard bail applications as inconvenient and does not want to do them? What is the situation, Mr Young?
MR YOUNG: I could not answer the question directly without some assistance, but I think the position generally is that described by Chief Justice Gleeson. I am not aware of any barrister who makes some kind of exception for things like bail. If they generally practise in the criminal sphere, the “cab rank” rule applies and they take work within the criminal field, and I think Mr Hore‑Lacy confirms that. I think unless there are some other matters I can assist the Court with, those are our submissions.
GLEESON CJ: Thank you, Mr Young. Yes, Mr Moshinsky.
MR MOSHINSKY: If the Court pleases, I would like to hand up some copies of passages from Professor Cane’s book, Tort Law and Economic Interests, in relation to an inquiry about the position of witnesses which was addressed to me during the course of my address.
GLEESON CJ: Thank you.
MR MOSHINSKY: On page 229, the author deals with the position of immunity of expert witnesses and he says that there are a number of possible justifications. He says that one possible justification is:
the likely effect of abolition of the immunity on the availability of experts willing to act as witnesses and on the credibility of their evidence; and partly on an assessment of the role of the expert witness.
What we submit is that the position of an expert witness is not identical to that of an advocate, because the immunity has an additional element of justification, namely, to ensure that the witness will be able to give evidence in the court. It is not solely concerned with the stress that might come upon a witness in the court process.
KIRBY J: There is a suggestion, I think, in the first respondent’s submission, that to add the burden of liability to a body such as Legal Aid is to add one further blow to the endeavour to ensure that people are represented with reasonable competence in the criminal process. It is just adding to the expense and difficulty of doing so.
MR MOSHINSKY: What we contend, your Honour, is that it is in the public interest that the standard of advocacy by Legal Aid officers, or by persons engaged by Legal Aid, be of an appropriate competent standard. Even though this may add a blow or a financial cost, if the Court feels disposed that this is a case that justifies it, to outline a proper standard would, in the long run, only improve the functioning of the Legal Aid service. What we contend is that it ought not to be a situation that persons who are impecunious or have very limited financial means do not have adequate representation, as distinct from persons who have more means and can hire barristers of greater experience or skill.
KIRBY J: Yes, but even in this Court prisoners in some jurisdictions cannot get legal aid or legal representation in special leave matters. Unless they are granted special leave, they just have to do the best they can.
MR MOSHINSKY: That is so, your Honour. We say that, at the very least, those who get legal aid should at least have the benefit of guidance or assistance from the Court in the clarification and reinforcement of appropriate professional standards.
GLEESON CJ: On the special leave aspect of the matter, it would seem a slightly odd outcome in the present case, would it not, if, because of the statutory provisions to which Mr Young referred, his client were held to be beyond the reach of an action and the entity that was left exposed to liability was Victoria Legal Aid?
MR MOSHINSKY: Most certainly and I wanted to address that issue. What we contend is that our learned friends’ interpretation of Giannarelli should not be accepted. What we say is that there really is no fundamental difference between the majority and the minority in their approach to interpreting section 10(2). What Justice Toohey explained at page 609 of the reasons was that although section 10(2) was a fixed time provision, in essence, what it provided was that, and I quote:
But this means no more than that a Victorian barrister today owes a duty to the client to exercise care in carrying out his functions as a barrister, just as in 1891 a solicitor owed a duty to his client to exercise care in carrying out his functions as a solicitor.
KIRBY J: The difficulty is with the words “to the same extent”.
MR MOSHINSKY: Yes.
KIRBY J: And they are words of quantum, quantification, or at least arguably so.
MR MOSHINSKY: What we contend, your Honour, is that the majority really did not deal with any other point other than to say what was the position in 1891 about the liability of a solicitor and they then formed the view, “Well, in 1891 a solicitor was not liable for in‑court negligence”. But that is not to say that the liability of a barrister, which was equated to that of the solicitor in 1891, is fixed to the position in 1891. It really means that a barrister is liable just in the same way as a solicitor was in 1891.
KIRBY J: It does not say “in the same way”. It says “to the same extent”.
MR MOSHINSKY: “To the same extent”. So to put it another way, that if there was no provision such as section 10(2) to look at, the Court would be really in the same position because ultimately the Court, if it abolished the immunity, would have to make such a ruling retrospectively. So to say retrospectively that in 1891 there was no immunity does not depend on section 10(2) as such. It depends ‑ ‑ ‑
GLEESON CJ: It is a bit hard to say that if your reason for saying it is because of circumstances that have changed in the last 20 years. It is not only a question of what you say. You have to give some reasons for saying it that will not cause people to burst out laughing.
MR MOSHINSKY: What we say is that given the benefit of a fresh look at the justifications for the immunity, which were previously put forward in Rondel v Worsley and adopted in part by Giannarelli, that fresh look ought to let the Court reach a point to consider that the previous appraisal was incorrect. It is not only that the circumstances have changed. The change in circumstances, we say, is the impetus or the reason for having a fresh look, but the real reason for changing the law is because the law is wrong and is unjust.
KIRBY J: Yes, but we are looking at it in a particular case, in your application.
MR MOSHINSKY: Yes.
KIRBY J: We are not really going into a historical excursus to say that back in 1890 a solicitor advocate was liable.
MR MOSHINSKY: Yes.
KIRBY J: I do not think that the theory of the common law would require that, but that seems to be what you are urging on us, and for my own part I think it is impossible to say in the face of the stated authority in 1890 that at that stage a solicitor advocate was immune. The issue then is whether a barrister’s statutory liability to the same extent picks up that immunity, and is frozen in time until the Act was changed.
MR MOSHINSKY: We contend that the view of Mr Justice Toohey that essentially what the legislation was concerned with was to look at the duty of care, that both had a duty of care, and that is an involving concept, is the appropriate conceptual approach. The other point I wanted to make about Giannarelli is that essentially it is a case, we say, that is concerned with in‑court negligence. Although it is true that the pleadings raised a failure to advise, the actual negligence that was concerned that had any causative effect was the failure to take the objections in court and, therefore, this Court could limit the ratio of Giannarelli to in‑court matters, draw the line on that particular position without affecting what has been said in Giannarelli, could disregard the dicta relating to “intimately connected”. That is not something we say is binding on the Court and ‑ ‑ ‑
GLEESON CJ: The difficulty is exemplified by that New South Wales case of Keefe v Marks where there was a difference of opinion, but the actual negligence in that case consisted of a failure to make an application to amend the statement of claim. The barrister who was sued in that case had not drafted the statement of claim and he had not been briefed to do anything other than to appear on the hearing.
MR MOSHINSKY: Yes.
GLEESON CJ: But the failure that gave rise to the loss to his client was a failure to apply to amend the statement of claim to include a claim for interest. Now, where did that occur, in court or out of court?
MR MOSHINSKY: It may have occurred in court if he was required by his retainer to apply for an amendment in court, but if he was not briefed to do so ‑ ‑ ‑
GLEESON CJ: The negligence was negative. The negligence lay in not doing something. It lay in not applying to amend the statement of claim. Now, where that is the form of negligence – and it often will be the form of negligence – how do you locate that spatially?
MR MOSHINSKY: We say that it depends on the duties the barrister has to perform under his retainer, whether he is required to perform an act which he has failed to perform in court or whether he is required to perform an act outside court. The other point I wanted to reply to is the question of pleadings. My learned friend says the pleadings are ambiguous. We say that the pleadings clearly identify Ms Greensill as a solicitor ‑ and that is in the application book at page 4 – and that there is no ambiguity, merely an allegation that as a solicitor she jointly advised with the barrister.
GUMMOW J: What is this reference to agency? What do we make of that? What does “on behalf of the VLA” mean? It is throughout the pleadings.
MR MOSHINSKY: That she was engaged on behalf of the Victoria Legal Aid.
GUMMOW J: It is being sued, not her.
MR MOSHINSKY: Yes, that is right. That is so, that she is acting as an agent on behalf of the party that is being sued.
KIRBY J: She was an employee of?
MR MOSHINSKY: She was an employee of ‑ ‑ ‑
KIRBY J: And it is a statutory corporation?
MR MOSHINSKY: And it is a statutory corporation.
KIRBY J: Does the statute permit it as an entity to act for parties?
MR MOSHINSKY: I believe so, yes.
KIRBY J: We had better have a copy of the statutory provisions.
MR MOSHINSKY: Yes, we will supply the Court with that.
KIRBY J: If you have any further answers to the statutory point which was raised today by Mr Young, I would appreciate adding to them. Simply that we should follow Justice Toohey, then that is your submission, but it is a very significant point as far as I am concerned.
MR MOSHINSKY: Yes, if the Court will reserve us the right to submit any further submissions on that in light of ‑ ‑ ‑
GLEESON CJ: Yes, you can do that within 14 days.
MR MOSHINSKY: Thank you, your Honour. The question of the Bar rules was raised. I would only point to the same rules and the issue of the
cab rank on the question of raising fees, we say that fees can be raised within limits, that a barrister can have a range of fees, but he cannot raise his fees to a point above what would be his normal fees so that it is not quite a case of you can never raise your fee, but if you have a range of fees for a particular work you can raise it higher within the range.
HAYNE J: Rule 86 has to be read, that is what it comes to.
MR MOSHINSKY: Yes, of course, we accept that. Your Honour Justice Hayne asked me to research Re Knowles [1984] VR to see if there were any other cases of that kind.
HAYNE J: No, I asked you whether in the Victorian Law Reform Commission Report there was any reference to the interregnum between decision at first instance and appeal in Giannarelli. You had told us there was a reference. I could not find it. I could find only a reference to Knowles at page 47, paragraph 9 and footnote 12. Perhaps you might add to your note any reference to the interregnum.
MR MOSHINSKY: Yes, we will do so. We contend there is a reference. Also, we have attempted to find a copy of the New South Wales Law Reform Commission report. We have not yet been able to identify it and we would seek to alert the Court to such a report if there is one that is relevant. If the Court pleases, I have no further submissions.
GLEESON CJ: Thank you, Mr Moshinsky. We will reserve our decision in this matter and we will just adjourn for a couple of minutes to enable people to rearrange their papers for the next case.
AT 12.20 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Causation
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Duty of Care
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Negligence
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Damages
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3
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