D'Orta-Ekenaike v Victoria Legal Aid

[2003] HCATrans 389

[2003] HCATrans 389

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

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 12.22 PM

Copyright in the High Court of Australia

MR N.A. MOSHINSKY, QC:   If the Court pleases, I appear with my learned friend, MR P.L. McCURDY, for the applicant.  (instructed by BTE Flynn Murone & Co) 

MR D. MASEL:   If it please the Court, I appear for the first respondent.  (instructed by Ebsworth & Ebsworth) 

MR D.F. HORE-LACY, SC:   May it please the Court, I appear with MR B.G. WALMSLEY, SC and MR G.M. HUGHAN for the second respondent.  (instructed by Beckwith Cleverdon Rees)

GLEESON CJ:   Yes, Mr Moshinsky.

MR MOSHINSKY:   If the Court pleases, this application for special leave from the judgment of the Court of Appeal dated 14 March 2003 raises a question of great significance with respect to the administration of justice in Australia, namely, whether or not ‑ ‑ ‑

GLEESON CJ:   Perhaps we might be assisted, Mr Moshinsky, from hearing from counsel for the respondents.  Before we do, could I just ask you this question, which may or may not be relevant to the application.  The statement of claim contains the allegations recorded on page 6 at line 10, and that allegation is repeated later, that a lawyer “negligently, erroneously and incorrectly advised” your client that “he had no defence to the alleged rape”.

MR MOSHINSKY:   Yes.

GLEESON CJ:   That sounds like the summary of the effect of some advice that was given.  It could be a layperson’s summary of any one of a number of significantly different pieces of advice.  Have particulars ever been sought or obtained of that allegation?

MR MOSHINSKY:   They have not been sought in relation to that matter.

GLEESON CJ:   An allegation like that might mean, for example, “Even if the facts, as you recount them to me, are true, that does not amount in law to a defence against the charge”.

MR MOSHINSKY:   Yes.

GLEESON CJ:   Or it might mean, “The prospects of success of raising a reasonable doubt in the mind of a tribunal of fact are slim or perhaps non‑existent” – or any one of a number of things in between those two.  At

the moment, we do not know with any particularity what exactly the negligent advice was, do we?

MR MOSHINSKY:   I will seek instructions on that issue.

GLEESON CJ:   I wondered whether that affects the suitability of the matter as a vehicle.  That is the only reason I asked the question.

MR MOSHINSKY:   Because the claim by the plaintiff was struck out by Judge Wodak at the initial stage, the issue of particulars has never arisen in this case.  I will seek instructions.

GLEESON CJ:   Perhaps, while you are doing that, we can hear what the respondents have to say.

MR MOSHINSKY:   Thank you.

GLEESON CJ:   Mr Masel.

MR MASEL:   If the Court pleases.  If I can turn to the question posed by the Court firstly, my submission would be that in the context in which the allegation is made, the nature of the advice cannot, in my submission, turn this into an appropriate vehicle.  The reasoning is this.  When one looks to the allegation as summarised in Judge Wodak’s reasons, one starts with paragraph (g) on page 5, that there was a conference attended by both the solicitor and counsel at counsel’s chambers and with the client.  That is two days before the date of the committal.

GLEESON CJ:   Am I right in understanding that the factual background to this allegation is that the accused person was saying it was a case of consent?

MR MASEL:   I am afraid I cannot answer that, your Honour.  My only knowledge of it is what appears from the judgment of the Court of Criminal Appeal.

GLEESON CJ:   I am simply trying to understand what it means to attribute to a lawyer advice to an accused person that the accused person “has no defence”.  What exactly does that mean?

MR MASEL:   I am afraid I cannot answer that other than by reference to the context in which the allegation is made, and the context in which the allegation is made is a conference in counsel’s chambers two days before the hearing of the committal, a conference attended by solicitor, counsel and client, and a conference where, if one looks to paragraph (k) on page 6, the advice that is given is alleged to be in three parts:  firstly, that the client “had no defence”; secondly, that if he pleaded guilty at the committal hearing, “he would receive a suspended sentence”; and, thirdly, if at the committal hearing there was a contest, and the charge was found proved at trial, “he would receive a custodial sentence”.

GLEESON CJ:   Now, I understand the second and third parts of that, but they seem to follow from the first.

MR MASEL:   They do, your Honour, save that when one looks to the approach that your Honour adopted in Keefe v Marks, that is, one looks to the substance of the allegation, rather than to the way in which it is crafted ‑ ‑ ‑

GLEESON CJ:   But what is the substance of the allegation?  What is the substance of a statement by a lawyer to a client that the client “has no defence”?  What exactly does that mean?

MR MASEL:   Where, as in the present case, it is in the context of an impending committal hearing, where, at the committal hearing, the client pleads guilty, where the loss, if there is any, which is alleged is consequent upon that plea of guilty, in the sense that the applicant’s case is, “I pleaded guilty, therefore, when I changed my mind the earlier plea of guilty could be adduced at my trial” and it would appear the plaintiff would then have to say, “By reason of that I was convicted” – in that context, one looks to the effective cause of the alleged loss, which is the plea of guilty.

GLEESON CJ:   I may not be making myself clear, Mr Masel, but if you say a lawyer has told a client accused of rape that the client has no defence, does that mean that the lawyer has said to the client, “Even if all the facts you tell me are true, you are guilty of the crime of rape”?

MR MASEL:   That is how I understand the allegation, your Honour, yes.  That is how I understand the allegation, and, of course, we are here dealing with a pleading point, in the sense that we assume that which is alleged and the manner in which it is alleged to be true, and say, nonetheless, there is an unimpeachable answer based upon the immunity.

GLEESON CJ:   So the case has been conducted so far, has it, on the basis that the essence of the allegation that is being made by the client is that the lawyers told the client that even if the facts recounted to them by the client about the events that happened were true, the client was guilty of rape?

MR MASEL:   I understand that is the way that the case is put and there is no contest, for the purposes of this exercise, that we take the allegations as made and the allegations that are made are made in a narrative approach, set out around page 6 of the application book.  There was the conference two days before, there was advice to plead guilty, there was a further conference on the morning of the committal, there was advice to plead guilty, the client pleaded guilty and later changed his mind, and so it goes.

GLEESON CJ:   So the case has been conducted to date on the assumption that it is alleged to have been negligent of the lawyers to have advised the client to plead guilty on the basis that they advised the client that even if his account of the relevant events were correct, he was guilty of the crime of rape?

MR MASEL:   That is my understanding of that which is alleged.

GLEESON CJ:   Thank you.

MR MASEL:   Of course, there has been no evidence as yet and the allegations may well be strenuously denied, but we are here on an order that permanently stayed the proceeding because it was met with the unanswerable immunity of in court and matters connected with the presentation of a case in court.

GLEESON CJ:   Now, why should we not simply refer this application for special leave to appeal to a Full Court?

MR MASEL:   Your Honours, there are two aspects of that, and I really do not want to go unnecessarily over what is in the written submissions, but perhaps the two matters are these.  There is the position of my client, the solicitor, who gives advice in the company of counsel and on a matter which is intimately connected with the conduct of the case in court because it affects the course taken by the case in court.

Now, on that point, this is a much clearer case, if one may submit, for the application of the immunity than was Yates v Boland, as considered at first instance by Justice Branson and by this Court on an ultimate appeal.  Here the advice was so clearly related to the conduct of the proceeding in court – both the committal proceeding and the subsequent trial – and, secondly, it was given in a joint conference contemporaneously, in circumstances where, as the judges who have dealt with this case to date have observed, it would be absurd and illogical if counsel were to have an immunity but the solicitor were not – even more absurd, in my submission, because the solicitor would then not be able to seek contribution from the counsel.

HAYNE J:   Given recent developments, should we, as a special leave panel, say that there is no fit question to be considered by a Court constituted more fully about whether the principle in Giannarelli v Wraith can be, should be, might be, reconsidered?

MR MASEL:   Your Honour asks, given recent developments, and my answer is to turn to what are the recent developments ‑ ‑ ‑

HAYNE J:   You may say that the decision in the House of Lords is persuasive, unpersuasive, good, bad, flawed here, not flawed there, but, at this stage, should we set our face against referring it in for consideration by a Full Court?

MR MASEL:   Your Honour, the only point I can point to, of substance, is this, that the decision in the House of Lords – and that is the major development which the applicant relies upon – comes down to a balancing of policy considerations which, for the most part, are the same policy considerations as were considered independently and balanced independently by this Court in Giannarelli.

When one looks to what had changed in England, there were two fundamental matters of change, neither of which applies here.  The first is the entry into the European Union and the comparative jurisprudence that arises by reference to that, and the second matter, and perhaps the most significant matter, is that the balancing exercise came down that the immunity was no longer required, not because the policy considerations which had previously been understood to mandate the immunity did not exist, but because it was not required to protect the administration of justice.

Now, an important way in which it was not required was the change of rules in the United Kingdom, and in the materials provided to the Court, the first respondent has provided the relevant Victorian rule which deals with how one deals summarily with unmeritorious cases, Orders 23.01 and 23.03, in which, if I might paraphrase, the case must be shown to be absolutely hopeless before it can be summarily dismissed or stayed.  That is contrasted with the new English provision, which is reproduced, where all that need be shown is that there is no real prospect of succeeding.

HAYNE J:   I do not know that we are going to get terribly far, Mr Masel, by going back over General Steel Industries, Dey, et cetera, or the differences in tests.  The real question is, why should this not be looked at by the Court fully constituted?

MR MASEL:   Your Honours, subject to those submissions that I have put, there are no further matters I wish to put before the Court. 

GLEESON CJ:   Thank you, Mr Masel.  Yes, Mr Hore‑Lacy.

MR HORE‑LACY:   Your Honours, I feel like Collingwood at three‑quarter time here, but the question is ‑ ‑ ‑

HAYNE J:   You will need to explain more for the Chief, but I would not bother.

MR HORE‑LACY:   Well, I will not go into the written summary of argument that we have prepared, or either of the two judgments of his Honour Judge Wodak and the Court of Appeal.  I will try to just grapple with the question, why should not this Court re‑look at it?  We say simply, first of all, there is no reason to; second, if it is to have a look at it, it is the wrong vehicle for the Full Court to reconsider, because even the case of Hall has recognised the difference between the criminal advocate and the non‑criminal advocate.

Giannarelli is clear.  The cases following Giannarelli, there has been – I think, Justice Kirby has expressed some disquiet with a general proposition, but, generally speaking, in particular, the case of Boland v Yates Property Corporation Pty Ltd, and also the English cases, Somasundarum [1988] 1 WLR 1394 – all the cases have suggested that conduct in a court should be the subject of immunity.

Also, the cases have suggested that advice as to whether or not to plead guilty is central to conduct inside the court, and we would say that, as a matter of practicalities, if, indeed, a person could be sued for negligent advice as to a plea, which is one of the most important functions of a criminal advocate and a function which does not face a person in a civil case – that is, advice as to a plea – then it would be – I will put it at its lowest – extremely difficult to give any advice concerning the conduct of the trial. 

Probably more importantly, advice to plead not guilty could be sued upon, because a plaintiff could complain that, had they pleaded guilty, they could get the benefit of the plea in mitigation.  They could be sued for not advising them to plead guilty at the earliest possible opportunity, because in that case they would argue that they would not receive the full benefit of an early plea.

But my simple answer to your Honour Mr Justice Hayne’s question is that it is the wrong vehicle.  There may be reasons why the civil situation should be looked at, but there are no cases at all.  In Hall, I think, four of the judges suggested that there was no difference between criminal and civil, and three said that there was, but the matter was not argued.  All the appeals in that case dealt with a civil situation.  We simply say that all the authorities – the New Zealand authorities, Australian authorities – have suggested that decisions made in the context of running a criminal case ‑ and that applies to incidental decisions, such as the advice of a plea ‑ should be the subject of an immunity.  May it please your Honours.

GLEESON CJ:   Do you want to say anything to clarify the matter we discussed earlier, Mr Moshinsky?

MR MOSHINSKY:   Merely to confirm what my learned friend has indicated to you.  The pleading alleges, and I believe the case has been debated in the courts below on the basis that, the legal practitioners said there was no defence on the instructions given.

GLEESON CJ:   Meaning, by that, what?

MR MOSHINSKY:   There was no defence in law to the charge.

GLEESON CJ:   Does that mean, “Even if the facts you recount to us are true, you are guilty of the offence of rape”?

MR MOSHINSKY:   Yes, that is so, your Honour.

GLEESON CJ:   We will refer this application for special leave to appeal into a Full Court.  When the matter is listed before the Full Court the parties should be prepared to argue the matter as on an appeal.

AT 12.43 PM THE MATTER WAS CONCLUDED