D'Orta-Ekenaike v Victoria Legal Aid & Anor

[2004] HCATrans 118

[2004] HCATrans 118

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 TUESDAY, 20 APRIL 2004, AT 10.16 AM

Copyright in the High Court of Australia

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

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR D MASEL, for the first respondent.  (instructed by Ebsworth & Ebsworth)

MR N.J. YOUNG, QC   If the Court pleases, I appear with my learned friends, MR D.F. HORE‑LACY, QC, MR B.G. WALMSLEY, SC, MR G.A. DEVRIES and MR G.M. HUGHAN, for the second respondent.  (instructed by Beckwith Cleverdon Rees)

GLEESON CJ:   Yes, Mr Moshinsky.

HAYNE J:   Just before you begin, Mr Moshinsky.  As counsel for all parties no doubt are already well aware, I am married to a practising barrister.  I do not consider that that presents any difficulty or embarrassment of any kind in my hearing the application, but I ask that that matter be drawn to the attention of the parties.

MR MOSHINSKY:   Thank you, your Honour.  We have no objection.

GLEESON CJ:   Yes, Mr Moshinsky.

MR MOSHINSKY:   If the Court pleases, this appeal from the Court of Appeal of the State of Victoria raises important questions of law concerning the nature and scope ‑ ‑ ‑

GUMMOW J:   It is not an appeal yet, Mr Moshinsky.

MR MOSHINSKY:   This application for leave to appeal raises important questions of law concerning the nature and scope of advocates’ immunity and whether the principles supporting this immunity should continue to be accepted as part of the law of Australia.  Our contention is that this Court should grant leave to appeal and should hold that the immunity is not part of the law of Australia or, alternatively, should confine the scope of the immunity to actions occurring during the conduct of the trial.  The facts of the case squarely raise these issues.

GLEESON CJ:   Could I ask you one question about the pleadings.  On page 10 of the application book, in paragraph 25, it is said that:

The prosecution relied upon the evidence referred to in paragraph 24 –

that is, the evidence of the plea of guilty that proved the charge against the plaintiff?

MR MOSHINSKY:   Yes.

GLEESON CJ:   I assume that the prosecution also relied upon other evidence?

MR MOSHINSKY:   Yes, that is the case.

GLEESON CJ:   So there is no question that the prosecution relied solely on the evidence of the plea of guilty?

MR MOSHINSKY:   That is correct, your Honour.

GLEESON CJ:   In due course, you will explain to us how you intend to prove causation.

MR MOSHINSKY:   Thank you, your Honour, I will deal with that issue.  The Court has before you the chronology which sets out the circumstances.  We have, in addition to the material filed before the Court, made reference to the transcript of the hearing before his Honour Judge Duckett in the second trial of the applicant, where his Honour ruled that he would not admit into evidence the plea of guilty in the committal.

GLEESON CJ:   There was an objection to the evidence of the plea of guilty at the first trial, was there not?

MR MOSHINSKY:   Yes.

GLEESON CJ:   And that objection was overruled?

MR MOSHINSKY:   Overruled, but in the second trial that objection was upheld, and, as part of our material, we have made reference to it and would like to tender to the Court that particular transcript.

GLEESON CJ:   Could we also have the relevant part of the transcript of the first trial, concerning the admission of the evidence over objection? 

MR MOSHINSKY:   I will seek instructions on that.  Regrettably we have not come to Court with that.

GLEESON CJ:   There is no need to give it to us today.  You can let us have it within the fortnight.

MR MOSHINSKY:   Yes.  We will send it to the Court.

KIRBY J:   Was this material that you are tendering now part of the record in the courts below?

MR MOSHINSKY:   It is part of the record.  It is a ruling of Judge Duckett in the second trial.

KIRBY J:   Yes, but we are in the civil jurisdiction here, we are not in the criminal jurisdiction, and, as I understand it, the case in the civil jurisdiction proceeded on the basis of an application for a permanent stay before Judge Wodak.

MR MOSHINSKY:   That is so, yes.

KIRBY J:   That was conducted, was it, solely on the basis of the pleadings or ‑ ‑ ‑

MR MOSHINSKY:   It was, your Honour, yes.

KIRBY J:   ‑ ‑ ‑ on the material from the criminal trials?

MR MOSHINSKY:   It was conducted solely on the question of pleadings.  To cut to the point, your Honour, the reason why we want to tender the transcript ‑ ‑ ‑

KIRBY J:   I understand why you want to.  I am just being obedient to the ‑ ‑ ‑

GLEESON CJ:   I do not understand why you want to.  I was interested to hear your explanation.

MR MOSHINSKY:   We say the case clearly comes to the Court on the basis that negligence can be proven on the pleadings, because that was the finding made by his Honour Judge Wodak, and I will refer you to the passage exactly where he makes that ruling.  One of the submissions made by the second respondent is that the allegation in the pleading, namely, that there is no defence to the charge, should be interpreted in a way which suggests that it is to be considered as a statement that there is no defence on the facts to the charge, that you will not be believed by a jury.

We say that his Honour Judge Wodak, having found and proceeded on the basis that negligence can be proven, that is not something that is open anymore before this Court.  However, if the Court does wish to look further into the matter and wants to look at the way in which that pleading is to be interpreted, we say that his Honour Judge Duckett found in his ruling on the voir dire in the second trial, at page 58, that – and I quote:

I am satisfied that the plea that was entered was as a result of considerable pressure applied by the accused’s previous legal advisers and that it could well have been given in the mistaken belief that the accused had no defence in law to the charge of rape.

KIRBY J:   As I understand it, your complaint is that you were knocked out without ever given the opportunity of a trial ‑ ‑ ‑

MR MOSHINSKY:   That is so.

KIRBY J:    ‑ ‑ ‑ on the basis of pleading documents, and that you have never had the chance to produce the evidence that you say would sustain your cause of action.

MR MOSHINSKY:   Absolutely, your Honour.

KIRBY J:   If there is no immunity, the question is presented as to whether the gate was locked and barred and you could not get pass it.

MR MOSHINSKY:   Yes.  We say that if it is necessary, the second respondent in its argument has raised a contention.

KIRBY J:   They say there was no evidence.  You have not got to the evidence yet.

MR MOSHINSKY:   They say that in a case involving advocates’ immunity, the relevant facts include those disclosed in the judgments in the proceedings from which the claim arises.  They seek to draw some comfort from certain findings of the Court of Appeal in the case where my client appealed to the Court of Appeal, the criminal appeal as a result of which his first conviction was overturned.  We say that if the Court does go down that path, a relevant judgment would be that of his Honour Judge Duckett, who has said plainly that his finding was that the plea was entered as a result of pressure because of a mistaken belief there was no defence.  Our fundamental submission is that all that really does not matter at all because if one looks at the application book ‑ ‑ ‑

KIRBY J:   Well, are we going to get this material or are we not?

MR MOSHINSKY:   Well, we do wish to put forward.  We have referred to it in our summary as an explanation as to why in the second appeal, the second trial, there was no evidence led about the plea of guilty at the committal.

GUMMOW J:   Was this material before the Court of Appeal?

MR MOSHINSKY:   It was not before the Court of Appeal.

GUMMOW J:   Well, how do we get it?

CALLINAN J:   I suppose this is an application for special leave and these may be facts bearing upon an application for special leave which could be proved in order to induce the Court to give you special leave.

KIRBY J:   Even if you could not get them in in the appeal.

MR MOSHINSKY:   No.

KIRBY J:   This Court has taken a very stringent view concerning dealing with appeals on the basis of the record.

MR MOSHINSKY:   Yes.  I should say that we are only leading this to rebut a point that has never been raised before.  It has only been raised in submissions before this Court.  At no stage has there been any contention made that this case is other than a clear‑cut pleading of negligence.  His Honour Judge Wodak has expressly found this to be the case.  If your Honours would look at the application book, page 29, paragraph 11, at the top of the page, his Honour concluded that:

I must assume for the purpose of these applications that D’Orta‑Ekenaike could establish the negligence or breach of duty alleged against each Defendant.  That assumption is a necessary precursor to the reliance sought to be placed on the “immunity defence” by each Defendant.

So we contend that none of this really matters, but because our friends for the first time have raised a pleading point about interpreting the way in which the allegation of negligence is put, and because they do it on the basis of the principle they allege applies, namely, that in a case involving advocates’ immunity relevant facts include those disclosed in the judgments in the proceedings from which the claim arises, we say that it is relevant not only to look at the Court of Appeal findings which they rely on, but the actual finding of Judge Duckett.  So it is very much to meet their case. 

We also wish to add that when this matter came before his Honour the Chief Justice and Mr Justice Hayne on 3 October in Melbourne last year, the parties were asked what was meant by the allegation, “You will have no defence to the charge”.  Counsel representing the second respondent made no submissions of the kind that are now being made.  There was no answer or submission made that the allegation is merely there is no defence on the facts.  So this is the very first time the matter has been raised. 

The first respondent, when asked that question, agreed that the case had always been conducted on the basis that no defence to the charge meant no defence in law to the charge.  That was my contention as well.  So that this is very much a side issue, which we say probably does not arise and you may not even need to look at this transcript, but should it become necessary for you to do so because you consider there is some merit in the point about construing that pleading, we would like to tender that transcript for your reference.

CALLINAN J:   Like the Chief Justice, I am also concerned about the question of causation.

MR MOSHINSKY:   Certainly.

CALLINAN J:   You see, on one view, perhaps, the true cause of such disadvantage as your client suffered may have been the failure of the first trial judge to uphold the objection, the objection which was apparently upheld at the second trial.

MR MOSHINSKY:    With the greatest respect, your Honour, this case comes before the Court on the basis that negligence can be proven, and that includes causation.

CALLINAN J:   I understand that, but causative negligence may be a different question.  Even if negligence is accepted, ultimately a court would need to be satisfied that that negligence was causative and an intervening fact or circumstance may well have been the failure of the first trial judge to uphold the objection.

KIRBY J:   As I understand it, and I will not say it again, you have been knocked out without a trial ‑ ‑ ‑

MR MOSHINSKY:    Absolutely, your Honour.

KIRBY J:   ‑ ‑ ‑ and this is the place, the trial, where those matters could be explored.  We are only dealing with a preliminary legal question.

CALLINAN J:   For my own part, Mr Moshinsky, I am just telling you that I would like to see that because I am interested in the question of causation.  This is an application for special leave, not an appeal.

MR MOSHINSKY:    Yes.  Your Honour, to answer your Honour’s inquiry, the way the case would be put at the trial, should it be conducted, would be to draw comfort from the decisions of this Court which deal with the scope of risk – the principles which allow negligence to be established, if a breach of duty is established, because a particular form of harm is foreseeable and the particular harm that occurs falls within the scope of that risk.  It is the “scope of risk” test which has been used sometimes in medical negligence cases and personal injury ‑ ‑ ‑

CALLINAN J:   I will say it once more:  you still have to prove causation.

MR MOSHINSKY:   We will.  We will prove causation because we say that if a barrister negligently and erroneously advises about a plea, saying “You must plead guilty”, it is foreseeable that the kind of harm that was likely to flow from it is that at a subsequent trial when there is a change of plea, the change of plea could have a prejudicial effect on the ultimate outcome.

GUMMOW J:   One of the reasons for the immunity may be thrown up by what is being debated with you.  You cannot call the judge.  You cannot call these juries.  How do these issues get decided?

MR MOSHINSKY:   In many cases involving loss of chance, for example ‑ ‑ ‑

GUMMOW J:   No, these counsel immunity cases, how do they get decided?

MR MOSHINSKY:    I am not clear on your question, your Honour.

GUMMOW J:   How are you going to have a trial to thrash out these issues when you cannot call some of the relevant actors, namely, the judges and the juries?

KIRBY J:   Presumably, you would call the plaintiff and you would call other barristers or experts who would have analysed the material and give their expert opinion, like any other negligence case.

MR MOSHINSKY:    Yes.

GUMMOW J:   On a question of fact.

MR MOSHINSKY:    We say it is a common procedure.  I was going to explain that quite often there are cases – and Kitchen is an example – where a solicitor is sued for some sort of error or negligent conduct which has led in a civil case to a wrong outcome or a better result might have been obtained and all the facts are brought before the court and the court then makes a calculated, realistic appraisal on a balance of probability, would the result have been different?  Was there a chance that something might have been different?  That can be done as a matter of common sense, applying common sense to the available evidence.

HAYNE J:   With one hand tied behind your back because you cannot ask the persons who were making the decision which is in issue.

MR MOSHINSKY:   It is certainly not possible to do that, but if I can say to your Honour, look at the broad picture.  A person is charged with a serious offence.  There is a jury.  The jury hears that he pleads guilty at a committal.  Now he wishes to plead not guilty.

GLEESON CJ:   The jury hears that as a result of an erroneous decision of the trial judge.

MR MOSHINSKY:   Yes.

HAYNE J:   Is that right because I thought the Court of Appeal here said that the decision to admit the evidence was not erroneous and that the error lay in the failure to give adequate instruction about its use.

MR MOSHINSKY:   That is so, your Honour, but ‑ ‑ ‑

HAYNE J:   So there is no erroneous admission of evidence.  The error is in want of proper instruction, which is an error, so it seems, of trial counsel.  Where do we go from there?

MR MOSHINSKY:   It is not the source of the error that is relevant, with respect, your Honour.  What we say as a matter of probability is this, that if the plaintiff had been given correct advice, given a chance not to plead guilty or to ‑ ‑ ‑

GUMMOW J:   Correct advice.

MR MOSHINSKY:   Non‑negligent advice.

GUMMOW J:   Yes.

MR MOSHINSKY:   Non‑negligent advice as a result of which no plea of guilty had been entered in the committal, the trial would have been conducted, probably in much the same way as the second trial where he was acquitted.  The fact that he was acquitted in the second trial is evidence upon which one can rely that most probably, had he been properly advised, not in a negligent manner, had there been not a plea of guilty that was used against him, quite probably he would have had the same result.

McHUGH J:   But how can the result at the trial be admissible at all?  One of the things that one has to face up to in this case, it seems to me, everything is up for redetermination including whether the evidence was properly rejected at the second trial or should have been admitted.  Every issue is up for re‑examination.

MR MOSHINSKY:   Yes, but we say we will cross that hurdle when the trial arises.

KIRBY J:   If only you can get your trial we might go into these things.

MR MOSHINSKY:   We only wish a trial.  We will cross that.  It is a matter of fact, your Honour, which we will deal with.

HAYNE J:   No, no.  It is not a sufficient answer to say if we get to trial all will be revealed.  You have to grapple with the fundamental tensions and difficulties that are revealed by this debate because those tensions and difficulties reveal whether there should be an issue tried.  You contend, do you not, that there is an outcome that should have been obtained sooner than it was?

MR MOSHINSKY:   Yes.

HAYNE J:   You say that the consequences that follow from the outcome being arrived at later rather than sooner should fall at the feet of counsel?

MR MOSHINSKY:   That is so.

HAYNE J:   To do that, you have, do you not, to reagitate all of the issues that were agitated at the trial of the present plaintiff?

MR MOSHINSKY:   That is so and we are quite prepared to do that.  We believe that we can call adequate evidence on that issue.

HAYNE J:   At the end you have to demonstrate that the result obtained could have been obtained sooner if a decision had been made by counsel different from the decision made at committal.

MR MOSHINSKY:   That is so, your Honour.

HAYNE J:   Even though the decision ultimately arrived at did not depend upon the adequacy or correctness of the decision which counsel made at committal.

MR MOSHINKSKY:   With the greatest respect, we join issue with your Honour on the last part of your analysis.  We say that if counsel had not given negligent advice and there had been no evidence available or which could be led of a previous plea of guilty, that element of prejudice would not have been suffered by our client and the client would not have been convicted in the first trial.  That flows as a matter of probability.  All those facts can be very easily proven by expert evidence and the like about the fact that the advice was erroneous and it was negligent.  Experienced criminal barristers can give evidence about the prejudicial effect, or the effect that very often happens, when a change of a plea is given at a trial.

It is then a matter for the jury, or for the judge ultimately hearing the case, to determine as a matter of probability whether that causative effect is established.  We say that it is certainly a very probable thing that if that change of plea evidence had not been given our client would have been acquitted, as he was in the second trial.  That is a matter for, ultimately, a judge or a jury hearing this particular claim.  But these are questions of fact which we say we are determined to prove if we are given a chance to have a trial.

HAYNE J:   And depend upon this Court re‑expressing the common law, do they not?

MR MOSHINKSKY:   That is so.

HAYNE J:   Why should this Court re‑express the common law arrived at in Giannarelli v Wraith?  What reasons are advanced for doing so, other than the fact that the House of Lords has re‑expressed the common law for England?

MR MOSHINKSKY:   With respect, we have a number of submissions on that.  We say that many of the considerations which Lord Steyn in Hall v Simons regarded as significant, for the purposes of reconsidering the immunity, also apply to Australia.  For example, he mentioned the fact that solicitor advocates may now advertise.  He actually referred to barristers who can now advertise, but in Victoria barristers cannot but solicitor advocates can advertise.  He referred to the fact that solicitors and barristers must carry insurance.  Now, we have a situation where both ‑ ‑ ‑

GUMMOW J:   Well, that is right, must carry insurance.  That assumes availability of insurance at reasonable rates, does it not?…..They were much informed by that by recent events in New South Wales, at any rate.

MR MOSHINKSKY:   Yes, but, with respect, we say that the question of heaviness of insurance is completely irrelevant to the justification for the immunity.

GUMMOW J:   Why?

MR MOSHINKSKY:   Because the immunity exists ‑ ‑ ‑

GUMMOW J:   You relied on it because Lord Steyn referred to it.  I am saying that is a rather facile treatment of it.  It is a deeper question than that.

MR MOSHINKSKY:   What we say is that one of the factors Lord Steyn relied on is that barristers must now carry insurance, which suggests that there is an ability to deal with claims where immunity is removed.  Your Honour has said to me, but, of course, this will lead to extensive insurance premium rises ‑ ‑ ‑

GUMMOW J:   No, no, I said it assumes there is an available market of insurers offering to take the risk.

MR MOSHINKSKY:   Yes.

GUMMOW J:   Which may not be the fact.

MR MOSHINKSKY:   We contend there is insurance available, and certainly our friends from the second respondent are perhaps a bit better
informed, but there has been no suggestion there is no available ‑ ‑ ‑

GUMMOW J:   Justice McHugh and I talked about these considerations in Esanda, I think.

MR MOSHINKSKY:   We contend there is available insurance for barristers and solicitor advocates.

KIRBY J:   Many surgeons constantly complain about the cost of their insurance, but it has not so far been a reason for the common law to withdraw their liability in negligence.

MR MOSHINKSKY:   We certainly accept what your Honour has said, but the issues of ‑ ‑ ‑

McHUGH J:   The question is not whether you withdraw, it is a question whether you add a liability to the common law which did not exist before.

KIRBY J:   It is pleasing to see insurance intruding into the practical considerations of the Court.  Normally, we forget about it.

McHUGH J:   Well, I did not forget about it in Esanda.

GUMMOW J:   Neither did I.

GLEESON CJ:   Well, what is important is not only that we remember it, but that also what we think we know about it is right.  How do we test that?

MR MOSHINKSKY:   We say that something as important as this immunity rule should not be in existence in our law purely on the basis of intuitive perceptions, in the absence of empirical evidence.

GLEESON CJ:   Exactly.

GUMMOW J:   Exactly, and that is what Lord Steyn seems to ‑ ‑ ‑

MR MOSHINSKY:   With respect, we say that is what the House of Lords did in Rondel v Worsley, that many of the principles upon which they relied were entirely intuitive and untested by empirical tests.  Mr Justice Krever in Canada in Demarco made that very point very clearly.  He said it is not tested and it is not proven and “For many years we in Canada have not had any evidence to suggest that harm will flow of the kind suggested”.  In Canada they have never had immunity, but there is absolutely no suggestion of an avalanche of claims.

HAYNE J:   That is not right.  Prosecutors have had immunity, have they not?

MR MOSHINSKY:   They have had immunity, that is so, but ‑ ‑ ‑

HAYNE J:   You cannot simply shell those aside as irrelevant.  There are some immunities that attend some actors in the curial process.

MR MOSHINSKY:   I accept that, your Honour.

HAYNE J:   You have to advance a theory which accommodates that fact, in particular, that accommodates the fact that if counsel deliberately, maliciously sets out in court to defame someone, counsel is not to be sued for the defamation deliberately and wilfully done.  If that is so, why do you say we should have liability for negligent conduct?  There has to be some grappling with the theories that ‑ ‑ ‑

MR MOSHINSKY:   We certainly intend to deal with that, with all these issues, and I would like to examine each of the policy considerations carefully.

GLEESON CJ:   I think you have only got as far as the second of the changed circumstances that Lord Steyn relied on.

MR MOSHINSKY:   Yes.  The third one is that solicitors and barristers can now enter contracts with clients.  We say, as a matter of experience, particularly in New South Wales, this is very common.

GUMMOW J:   What is his Lordship saying, with an exemption clause?

MR MOSHINSKY:   No, but it is a sign, your Honour, that clients approach a barrister or a solicitor advocate in a commercial way seeking value for their services.  There is a contract between the client and the advocate.  It leads to the main point that his Lordship ‑ ‑ ‑

GUMMOW J:   Well, wait a minute.  We are greatly advantaged here in this Court from time to time by pro bono activities of counsel.  They give a voice to a person who otherwise would not have an informed voice.

MR MOSHINSKY:   Certainly

GUMMOW J:   Are they accommodated in this scheme of Lord Steyn’s?

MR MOSHINSKY:   There is certainly a great deal of pro bono work, but at the same time Lord Steyn, we say correctly, points out that we live in a consumerist society and that more and more people in our society ‑ ‑ ‑

GUMMOW J:   What does that mean?

MR MOSHINSKY:   It means, with respect, your Honour, that people want value for money.  It is no longer the case of the barrister or the advocate performing a duty in an honorary way.  There is some element of that in practice, but it is a commercial process no different to many other professional people:  accountants or doctors.  Money is paid and there is a desire for proper standards in the community.

KIRBY J:   Many medical practitioners offer their services pro bono.

MR MOSHINSKY:   They do, but, nevertheless, there is liability in negligence because on the whole the transactions between members of the community and professionals are in a commercial context.

HAYNE J:   Which is a purely bipartite transaction.

MR MOSHINSKY:   Yes

HAYNE J:   The transactions with which we are centrally concerned here are not confined to transactions between counsel and client.  There is an opponent.  There is a court.  There is further the instructing solicitor – let us leave that one aside.  But at least there are four parties concerned, one of which – the court – is there, if you like, as a societal representor.  So that analogies with bipartite transactions are not entirely apt.

MR MOSHINSKY:   Your Honour, with respect, the thrust of what Lord Steyn is saying is that times have changed.  We live in a consumerist society.  People expect advocates to provide reasonable services and to be accountable in law if they fail to provide services of an appropriate standard.

McHUGH J:   Yes, but that is hardly a test for imposing liability for negligence.  People expect journalists to be careful when they write articles, but, unless they defame a person, they are not liable in negligence to somebody who may be affected by their article, because they do not owe that person a duty of care.  A journalist’s article may do enormous harm, but the journalist cannot be sued in negligence unless there is some very special relationship with the person involved.

There are numerous illustrations where people cannot be sued in negligence.  If army officers make a wrong decision and send somebody to his or her death, they cannot be sued in negligence.  The prevailing doctrine at the moment is that entities like ASIC owe no duty of care to investors.  Auditors do not owe a duty to investors that they are not in contractual relationship with.  There are numerous illustrations of people suffering wrongs through the carelessness of others and yet having no remedy.

MR MOSHINSKY:   Nevertheless, Lord Steyn, your Honour, was pointing to that consideration as a relevant factor to reconsider the public policy considerations underpinning this immunity.

McHUGH J:   Can I just say this to you, Mr Moshinsky, I think it invites error to look in this particular area to other countries.  Take the law of defamation.  New South Wales is the defamation capital of the world.  You will get far more defamation actions in New South Wales than you will in any province of Canada, or, for that matter, England.  Experience in other countries tells you nothing about what is likely to happen in this country.  It is a matter for you, and no doubt you will want to rely on these statements in other countries, but the fact is it has to be tested under Australian conditions.

MR MOSHINSKY:   I accept that, your Honour, but we say that there is a commonality in the cultural milieu that we live in between the British experience and the Australian experience.

GUMMOW J:   Let me put this to you, Mr Moshinsky, I think there was a spectre at the feast in that English case and the spectre was the European law.  On one view of it, it might be that this is a pre‑emptive adjustment of the common law in anticipation of what might otherwise be forced on them by Europe.

MR MOSHINSKY:   With respect, your Honour, we say that, carefully analysed, the speeches deal meticulously with each of the ‑ ‑ ‑

GUMMOW J:   Of course.  It is a spectre that is not in the forefront of the judgments.

MR MOSHINSKY:   Yes.  It is very hard to answer that ‑ ‑ ‑

GUMMOW J:   I am talking about the cognoscenti, what sound people thought was going on.

MR MOSHINSKY:   But, after all, Australia is part of a western world where the influences that play upon this country are not all that foreign to the influences that play on Europe..

GUMMOW J:   The tradition of an independent Bar has no place in Europe, does it?

MR MOSHINSKY:   It does not, but the ‑ ‑ ‑

GUMMOW J:   The recruitment of the Bench from an independent Bar has no place either, and jury trial has no place either.

MR MOSHINSKY:   But Australia is just as much party to treaties which call upon the right of persons to be able to have access to the courts, which is really no different to what the European treaty was about.

GUMMOW J:   They do not learn about the Magna Carta in France, I do not think, or Germany. 

MR MOSHINSKY:   Well, they had the Revolution.

GUMMOW J:   They did, and an authoritarian system.

MR MOSHINSKY:   Lord Steyn, I may say, drew some comfort from the European advocates’ practice because he said although their rules are different it is a significant fact that, absent the immunity, there still did not seem to be an avalanche of suits or problems and although they have different methods of practice and the judge may have a more significant role, the duties on counsel to reveal adverse authorities does not exist.  There are significant differences, but yet it is a western country with the same high level of expectations in the community, performance by lawyers, and yet there is not any evidence of the problems.

McHUGH J:   Yes, but there is a problem even comparing different States.  Take New South Wales and Victoria.  In my lifetime, the New South Wales personal injury litigation outnumbered Victoria by a huge amount.  You only had to compare the law lists of 30/40 years ago to see, but New South Wales was a much more litigious society than Victoria was.  Things may have changed in Victoria, I suspect they have, but it is very difficult to draw on what happens in Europe and say if it did not happen in Europe, it will not happen here.  It may or may not.

KIRBY J:   I thought we were dealing with a general principle of the common law that is applicable throughout Australia.  The common law in Australia is uniform.

MR MOSHINSKY:   We certainly say it is uniform and that the common law principle derives from the United Kingdom and where ‑ ‑ ‑

HAYNE J:   No, no, the common law principle that we are talking about derives from Giannarelli v Wraith and the immediate question is, why should the Court restate the common law in Giannarelli v Wraith?  At the moment, you point to a decision of the House of Lords.

MR MOSHINSKY:   Yes.

HAYNE J:   The Court decided in 1963 that that was not reason enough to restate the common law.

KIRBY J:   I think you are trying to go through the policy and other reasons expressed by the House of Lords.

MR MOSHINSKY:   I have come to the end of that list, but I want to go to what New Zealand has said in the Court of Appeal.

GUMMOW J:   What is the list then?  What is ‑ ‑ ‑

MR MOSHINSKY:   The list essentially is that we live in a consumerist society.  Expectations have been raised that there be a liability by professionals.

CALLINAN J:   Who has raised the expectations?  The media?

MR MOSHINSKY:   It is the nature of change.  The modern society we live in has ‑ ‑ ‑

CALLINAN J:   How can you possibly say that?  How can you gauge that and how informed are these expectations?  Do they take into account any of the matters which have been referred to by the members of this Court, even so far in this debate?

KIRBY J:   That is the question the Court has to weigh.

MR MOSHINSKY:   What I am dealing with, your Honour, is the question of should the Court reconsider Giannarelli?  I would point, essentially, to three factors:  firstly, the list of Lord Steyn which, in essence, focuses on the consumerist point; secondly, I want to point to what the High Court in New Zealand said in Lai v Chamberlains, where they confined the immunity to in‑court immunity only ‑ ‑ ‑

GLEESON CJ:   What is the reference to that?

MR MOSHINSKY:   It is an unreported decision.

HAYNE J:   I think not, it is [2003] 2 NZLR 374.

MR MOSHINSKY:    Yes, thank you.  Justice Laurenson in that case, examining the changed condition in the practice of law in New Zealand, we say referred to a number of factors which were pertinent to Australia.  He said there was a substantial retreat of the oral provision in litigation other than in criminal law practice.  He said that:

the element of uncertainty and surprise has been significantly removed by the acceptance of and pretrial exchange of written briefs and submissions.

We say that therefore ‑ ‑ ‑

HAYNE J:   It will come as a great surprise to most members of counsel that the element of surprise had left the courtroom, Mr Moshinsky.  We might have seen some this morning.

MR MOSHINSKY:   It has not completely left it, but there has really been a change, your Honour, to a different mode of practice in the use of written submissions, statements of facts and contentions as a common practice, both in the Supreme Courts and in the Federal Court.  That, of course, brings the advocate’s role out of the courtroom, and, as Lord Diplock pointed out, where a barrister is making a decision in the calmer circumstances of his chambers, rather than the pressure of court, there is less reason for the immunity rule to apply.  We, therefore, say that there has been a movement in that direction.  We also rely on what Justice Laurenson said, that in the civil area the prevalence of case management ‑ ‑ ‑

GUMMOW J:   Which paragraph is this, Mr Moshinsky?

MR MOSHINSKY:   Of the judgment?

GUMMOW J:   Yes.

HEYDON J:   Paragraph [96].

HAYNE J:   The surprise element is paragraph [95], the case management elements are at paragraphs [96] to [98], I think.

MR MOSHINSKY:   Thank you, your Honour.  His Honour also points out that in the civil area the prevalence of case management, by allowing discovery, inspection and interrogatories, minimises the risk of error.

GUMMOW J:   But we are talking about life in the District Court and County Court.

MR MOSHINSKY:   Yes.

CALLINAN J:   In any event, not all the results of case management have been entirely happy.  Intrusion of the trial judge, intrusion of the judge getting into the arena – often, there has been a degree of confusion created.  I do not think it has made any relevant difference at all, case management.

MR MOSHINSKY:   The way in which his Honour relied on that point was to use it as an example of more and more emphasis being placed on preparing a case outside the courtroom, so that the element of surprise is minimised, and, therefore, the focus of the immunity which has sprung out mainly in an era, particularly in Rondel v Worsley, of dock briefs, of people being in court and being subject to pressure – the focus is now changing, particularly in the civil field.  That is a factor which we say ought to be relevant for the purposes of considering whether to change the law.

GLEESON CJ:   Now, in this New Zealand case, they concluded:

There is an overwhelming case for retaining the immunity in relation to criminal and family law litigation. 

I presume your submission is that that is wrong?

MR MOSHINSKY:   That is so.

GLEESON CJ:   What has happened to this decision?  Has it gone on appeal?

MR MOSHINSKY:   It has gone on appeal, but there has not been a result from the Court of Appeal yet.

GLEESON CJ:   Has the appeal been heard?

MR MOSHINSKY:   I believe so, in March.

GLEESON CJ:   Do not take that personally, Mr Moshinsky.

MR MOSHINSKY:   Having come from Honiara, I am very used to it.  Two other points are made by Justice Laurenson.  One is that there has been an increase in legal aid, and that means an increase in the number of litigants.  As a result, there has been an increase in the expectation that the law will provide a remedy for every wrong.

HAYNE J:   What do you say is the principle that permits or requires account to be taken of such matters as whether decisions have to be made quickly or decisions have to be made in the heat of battle?  What is the significance of those considerations to our present debate?

MR MOSHINSKY:   We say that, going back from Rondel v Worsley, through Saif Ali and, finally, in Giannarelli, one of the most predominant considerations for supporting this immunity has been what is known as the “conflict of duties” point, that is, that an advocate owes a duty to his client, and an advocate also owes a professional duty to the court.

The immunity is supported, not to help the advocate; the immunity is supported solely to help, as a matter of public policy, the administration of the courts.  It is considered that if a barrister was liable, or for that matter any advocate was liable to be sued, in the courtroom the judgment of the barrister might be impaired by the fear of being sued or, as the House of Lords said, by being vexed by that problem and as a result, the performance of a barrister would be adversely affected.  It may lead to prolixity because the barrister, fearful of suit, would ask too many questions, or questions which the client wanted to be asked but were not strictly helpful for the resolution of the dispute, or there might be an absence of adherence to some of the professional standards which were required of an advocate, such as not to impugn the credit of a witness without a good basis.

GUMMOW J:   And not to put every point that the client wants put.

MR MOSHINSKY:   And not to put every point that a client wants to put.  So that where we have a much more diversified form of practice of the law with more emphasis on preparation outside the courtroom, more control of proceedings outside the courtroom, the “heat of battle” point does not apply as to support that particular form of justification.

McHUGH J:   But why?

KIRBY J:   There is quite a bit of heat of battle in a surgeon’s work, a brain surgeon’s work and in flying a Boeing 747, but no one suggests that those professions could be immune from negligence.

McHUGH J:   It is a question of standard of care, is it not, and how you judge it, which makes the barrister’s position different?  Not enough attention, it seems to me, to have been paid in the cases as to that one is dealing with statements or lack or statements by barristers which the common law has always regarded as in a different position to physical acts.  After all, there are only so many ways, one would have thought, that you can remove an appendix or perform some other operation.  Expert witnesses can say that it should not have been done this way, or there should have been more stitches in, et cetera, but how do you determine the standard of care as to how people conduct cases?  You have to look at this in the broad.

One counsel, take Sir Patrick Hastings, always wanted to fight a case on a single issue and was prepared to abandon everything else.  Other counsel would run every issue under the sun.  You talk about the heat of the moment.  If you are appearing for a defendant or an accused person at the close of the other side’s case you may have to make an instant decision as to whether you call a witness and it depends on intuition, instinct as to just how far you think you are ahead with the judge or jury as the case may be.  How are you going to second‑guess those decisions?  Are you going to call an expert who says, “Well, I’ve read the transcript”, notwithstanding that the expert was not at the trial, did not see the jurors, did not see the judge, did not see the witnesses.  He should have called the accused, should have called the defendant.

KIRBY J:   I imagine similar problems arise when operating on an aorta.

CALLINAN J:   No, you are dealing with certain laws, scientific laws in relation to human tissues.  Measurable matters.

MR MOSHINSKY:   Your Honour, if I could answer that question by saying, first of all, Lord Diplock has acknowledged that the practice of advocacy is an art, not a science.  In Canada, it is also, despite the comparative absence of immunity, acknowledged that that problem that you pose to us is a real one, so that only egregious forms of error are regarded as actionable.

GLEESON CJ:   Yes, tell that to surgeons.

KIRBY J:   But, did Lord Diplock not say something of a similar kind?

MR MOSHINSKY:   Yes, he said that it would be only a case of the very clearest breach of duty that would be actionable because a mere error of judgment would not suffice.

GLEESON CJ:   Would one of the reasons in favour of removing the immunity from lawyers to the extent to which it exists be that the removal of the immunity might be to the benefit of other people who are sued for professional negligence because it would remind lawyers of the difference between negligence and an error of judgment?

MR MOSHINSKY:   Yes.  Your Honour, what we say is that it is quite possible to prove negligence against a barrister and that it is a purely a matter of providing adequate evidence.  There are cases of egregious error.  There are cases where no matter how much variety of views there are about the art of advocacy, they simply just do not apply.

CALLINAN J:   Mr Moshinsky, take this case.  Say you were to succeed here and some other person was in exactly the same position as your client, but six and a half years have lapsed, the limitation period has elapsed.  Could that person sue the solicitors and barristers who advised him?

MR MOSHINSKY:   Because the limitation period had elapsed?

CALLINAN J:   I am sorry, leave out the limitation period.  Assume you succeed.

MR MOSHINSKY:   Yes.

CALLINAN J:   The law is effectively changed.

MR MOSHINSKY:   Yes.

CALLINAN J:   Legal fiction is that this has always been the law.

MR MOSHINSKY:   That is so.

CALLINAN J:   What about some barrister or solicitor who failed to advise some other person or advised negligently in a case like this one.  Could that person then sue?

MR MOSHINSKY:   Yes.

CALLINAN J:   Would the barrister and solicitor be liable for not guessing that this Court was going to change the law, effectively, here?

MR MOSHINSKY:   That would be the case, your Honour, and I want to deal with that ‑ ‑ ‑

CALLINAN J:   It seems a rather unjust result, does it not?

MR MOSHINSKY:   That is the issue of retrospectivity and what we say is that if the policy of the law which underpins the immunity is reconsidered by this Court and if, as a result, the view is reached that the policy reasons previously relied on to support the immunity are no longer sufficient to justify this policy, then any consequences which are considered by the community to be undesirable can be addressed by Parliament.  This can be by the conferral of retrospective immunity if considered necessary or appropriate.

CALLINAN J:   Has Parliament ever done that?  Has Parliament ever done that when there has been a major change?

KIRBY J:   It has moved in New South Wales following Brodie, as I understand it.

MR MOSHINSKY:   Brodie’s Case – and in Victoria as well, that after Brodie’s Case was decided Parliaments reconsidered the effect of that decision.

GLEESON CJ:   What about Cattanach v Melchior?

MR MOSHINSKY:   I am not familiar with that case, your Honour.

KIRBY J:   Otherwise you could never ever re‑express the common law because it is going to have an unfortunate effect on some people.

CALLINAN J:   You might re‑express it incrementally, and that is in a way which would not give rise to these retrospective problems.

MR MOSHINSKY:   Your Honour Justice McHugh, I want to reply to your query about proving negligence.

McHUGH J:   Standard of care, yes.

MR MOSHINSKY:   I want to rely on the decision of the Court of Appeal in McFarlane v Wilkinson.

KIRBY J:   Which Court of Appeal is this?  There are many.

MR MOSHINSKY: In the United Kingdom, which is reported in [1997] 2 Lloyd’s Rep 259. That was a case involving an action against a barrister. At page 275 dealing with a failure by a barrister to plead a cause of action, in the middle of the page, Lord Justice Brooke said:

It follows from this that if a barrister omits to plead a cause of action in a situation where no other reasonably competent barrister, acting with ordinary care, would have failed to plead that cause of action, then he or she will be liable to compensate the client if loss flows foreseeably from that negligence.  If on the other hand other reasonably competent barristers holding themselves out as competent to practise in the relevant field and acting with ordinary care might also have decided not to plead that cause of action, then there will be no question of professional negligence.

GLEESON CJ:   How does that stand with Rogers v Whitaker?

McHUGH J:   That is a Boland.

GLEESON CJ:   That is Boland.

MR MOSHINSKY:   Yes.  Well, it could be modified to accord with Rogers v Whitaker because it is ‑ ‑ ‑

KIRBY J:   Your answer is quite – Rogers v Whitaker states the principle for other highly talented professional people.  What is the special reason for an exception to that on the part of barristers?  It would seem to me that if you are almost uniquely exempt there have to be very good reasons of principle.  Now, the courts have found such reasons of principle and in Boland v Yates I left open the question of whether in criminal proceedings there was a need for special protection because of the way in which criminal appeals and trials are conducted.  It is exceptional and you are asking the Court whether it can now be justified.

MR MOSHINSKY:   Yes.  If I could turn to the particular policy reasons which have ‑ ‑ ‑

McHUGH J:   Yes, but it is more – when you are talking about negligence in this context, you have to consider a situation where barristers are making judgments, often on instinct, often on intuition, often on their assessment of probabilities which turn out to be wrong.  In the same week I once advised two clients that the probabilities were against them getting special leave to appeal from this Court.  Both of them said to me, “Thank you for your advice, but go and argue the case”, and both were granted special leave.  One appeal succeeded, as I thought it would, if special leave were granted.

But supposing they had gone away and had not proceeded with their special leave applications and then a year later some other barrister said, “You should have got special leave.  McHugh was wrong about that.  Sue him.”  How do you determine whether or not my judgment in those cases was right or wrong?

MR MOSHINSKY:   It would be no different a question in law to determining whether a surgeon had given correct advice in a milieu of medical opinion which was controversial.  The Court would have to do its best to assess conflicting views about the method and manner of delivery of the advice and whether there was a legitimate scope for differences of view.

McHUGH J:   I do not think the analogy is true, because when you are dealing with medical advice you are dealing with physical things, with scientific laws.  In a law court, much depends on one’s impression of the court.  A judge would have to be blind to think that members of the Bar do not think they have a better chance of getting special leave from some members of this Court than they have of others.  That has always been the case.  So one makes judgment about that, as a barrister.

MR MOSHINSKY:   What I want to draw difference on is, on the one hand, we have clear cases of negligence:  for example, if a barrister fails to call an obvious witness who would have had a bearing on a case; in this case, if there was negligent advice about the absence of a right to contest a case in a criminal trial; in the case of MacRae, where there was a failure to put interest into a statement of claim.  These sorts of cases, where the result is ‑ ‑ ‑

McHUGH J:   They are the clear cases.

MR MOSHINSKY:   Clear cases.

McHUGH J:   There is no doubt that, in that sort of case, you are on sound ground, but you just cannot pick out one instance like failing to claim interest and say, well, that shows that there are standards which are measurable.  You have to look at the whole situation.

KIRBY J:   As I understand it, your point is that if there are clear cases where there should not be an immunity, then this Court has to consider the principle upon which the immunity stands, if at all.

MR MOSHINSKY:   That is so, your Honour.  What we say is that there are clear cases where, by any professional standard, by any professional opinion, something has gone wrong as a result of negligence during the trial or before the trial.

HAYNE J:   Let us examine the clear case.  The clear case is one where the result obtained at the trial is, in one sense, “But for the negligence, the result would have been otherwise”.  Is that right?

MR MOSHINSKY:   Yes.

HAYNE J:   The result obtained at trial, by hypothesis, stands, despite the fact that other evidence might have been led, other points might have been taken.  Is that right?

MR MOSHINSKY:   Yes.

HAYNE J:   What is the principle that leads to the result of the trial remaining unaltered, despite the fact that there was other evidence or another point that would have led to a different result and yet leads to debate in an action against counsel about whether some other result could or should have been obtained?  Why is one final and yet the other not?

MR MOSHINSKY:   We say, your Honour, that the whole issue of finality of litigation is wrongly approached by the law, that, in the end, Mr Justice Krever was completely right when he said better that a person have a right to go to court and challenge a negligent conduct of a case by an advocate than to be denied the right on the grounds of some principle of finality.  Given that the issue of finality is an important consideration in the cases, we address the matter in this way.  We say, firstly, in this case, the previous conviction has been quashed.  There is no public policy reason, in a case like this, where there is no possible challenge to a previous hearing, for that to be a policy ground to be used against us.

McHUGH J:   But why?  Take this case, supposing the evidence had been admitted and the jury had been properly instructed and your client was convicted.  You must still claim that you could sue counsel for negligence.

MR MOSHINSKY:   Yes.

McHUGH J:   You would.  So that means that the young woman who was allegedly raped would probably have to be called again in the civil proceedings and there would be another determination.  Why should she have to go through that again?

MR MOSHINSKY:   Because we are not ‑ ‑ ‑

McHUGH J:   On your theory, she will probably have to go through it again in this case because the defendant may want to say you were guilty.

MR MOSHINSKY:   Yes.  We say because the previous conviction no longer stands and there is no public policy reason to prevent a right of hearing in a negligence claim.

GLEESON CJ:   Mr Moshinsky, this is an aspect of the matter that is troubling me.  It troubles me from the point of view of the arguments one way and the other.  Reference has been made to what is called a clear case, but cases may be clear about different things.  In one case, the negligence may be clear.  In another case, the causation may be clear.  Perhaps Giannarelli was such a case. 

But the law in other countries has got to this situation.  We have New Zealand currently saying the case for preservation of the immunity in relation to criminal advocacy in court is overwhelming.  We have the House of Lords in England saying four members of the House of Lords say the immunity in criminal cases should go and three members of the House of Lords say the immunity in criminal cases should be retained.  But of those who say the immunity should go, they also say there will be public policy reasons why in the great majority of cases you can never successfully sue a barrister for negligence in the conduct of a criminal trial.  That is the area that I would like to explore by reference to the circumstances of the present case because the discussion so far seems to have assumed that it is all or nothing.  You either have a blanket immunity or you have no immunity at all.

In a case such as the present – and this is why I asked my earlier question about causation – let me assume you have negligent advice to plead guilty to rape – a plea of guilty at the committal proceedings.  The plea is subsequently withdrawn.  Then at the trial at which there is a plea of not guilty the trial judge admits evidence of the earlier plea of guilty together with a whole lot of other evidence that is alleged to prove that your client was guilty of rape, and your client is convicted and the Court of Appeal says it was not wrong of the judge to admit the evidence of the guilty plea, but he misdirected the jury about the proper use they could make of it.  Then there is a further trial and the next trial judge excludes the evidence of the plea of guilty and your client is acquitted.  On the issue of causation, what are the public policy considerations that are relevant to the investigation of whether the original advice to plead guilty was a cause of the incarceration of your client and other harm that followed his original conviction and for which he sues?

MR MOSHINSKY:   We say that it is purely March v Stramare.  It is a matter of common sense.

McHUGH J:   Why?  The jury may have said, “I believe this woman.  I saw her in the witness box and she was an honest witness.  I am not concerned about the accused’s plea of guilty.”

MR MOSHINSKY:   That is a matter of finding of the evidence.  It is not until ‑ ‑ ‑

McHUGH J:   Yes, I know, but the point is, how do you know?  When you ultimately come to determine the civil case, how do you know what part the plea of guilty played in the ultimate verdict which led to the imprisonment for which you claimed damages?  It may be it had nothing whatever to do with it.

MR MOSHINSKY:   That is an argument that can be raised by the defence, but we say that there is enough evidence here to suggest that, particularly by reference to the second trial where the evidence was not led, that more probably than not that had a significant causative effect.

GLEESON CJ:   No one is suggesting you can sue the trial judge who gave the original erroneous direction in relation to the use of this evidence, are they?

MR MOSHINSKY:   No.

GLEESON CJ:   So the one group of people in the community who could never describe this immunity as unique are judges.

MR MOSHINSKY:   True.

GLEESON CJ:   And no one suggests that any of the witnesses at the trial could have been sued for negligence.

MR MOSHINSKY:   That is so.

GLEESON CJ:   No one suggests the jurors could be sued for negligence because they made a wrong decision.

MR MOSHINSKY:   Yes.

GLEESON CJ:   Now, is the barrister at the civil trial that you wish to conduct in this case going to be permitted to defend himself by saying, “Your client was guilty of rape all along”?

MR MOSHINSKY:   No, because that would not be a relevant consideration.

McHUGH J:   Why not?

HAYNE J:   Why not?

MR MOSHINSKY:   Because ‑ ‑ ‑

McHUGH J:   Why not?  It is the very issue.  You should have been convicted.  You are claiming damage.  You say, “I was wrongly convicted and I was sent to imprisonment”.

MR MOSHINSKY:   We say, with respect to your Honour, the issue is whether he would have been successful in being acquitted, that is just like in the second trial he was not convicted because, we say the evidence was not led.  In the first trial, if there was only one trial he would not have been convicted.  It is not a question of whether he is guilty of the charge.  It is a question of what were his chances of being acquitted at a hearing which was a trial of the charge.

McHUGH J:   This is a “loss of a chance” case.

MR MOSHINSKY:   In the end it may be a loss of a chance or it may be a matter of probability, depending on the full flush of evidence, but it is really no different to the cases where solicitors are sued for negligence for wrong preparation of a case which has an unsuccessful outcome or wrong outcome.  The court assesses the probabilities or the chance involved to determine whether or not there has been a substantial loss.

GLEESON CJ:   Now, how could you assess that without making a judgment as to how convincing a witness the young woman is?

MR MOSHINSKY:   That is a matter of evidence, and that evidence ‑ ‑ ‑

GLEESON CJ:   What, you mean somebody will go into the witness box and say, “She was a very good witness” or “She was not a very good witness”?

MR MOSHINSKY:   Well, she may be called and the court may then assess, by reference to her evidence, how well she was performing or how she presented her evidence.  If, in fact, she performs better or worse the second time around that could be a factor that can be brought out.  After all, it is a question of fact.

GLEESON CJ:   You may be right about this, but this seems to me to be the problem, or the area, that both sides have to address in this case.  We are not here dealing with a case about the so‑called immunity in relation to civil actions.

MR MOSHINSKY:   No.

GLEESON CJ:   And just as the House of Lords was not dealing with a case about immunity in criminal cases in Hall, we are not dealing with a case about immunity in civil cases here.  Is there – thinking along the lines of what was said by some of the House of Lords in the English case – a question whether an action like this, in circumstances like this, has to be considered not only in terms of the general or blanket immunity, for which your opponents contend, but also in terms of the principle about collateral challenges to decisions in criminal cases of the kind that was advanced in the English decision as a reason why it would be very rare that you could succeed in an action against a barrister for negligently conducting a criminal case.

MR MOSHINSKY:   We say, as several members of the House of Lords did, that where a conviction has been set aside, the principle of collateral attack has no role to play.  In terms of the general principle about relitigation and collateral attack, our position is that Hunter’s Case and the abuse of process principles are perfectly adequate to deal with this issue.

GLEESON CJ:   Does that produce the result that you admit that your client would have no cause of action if his conviction had never been set aside and he was still in prison?

MR MOSHINSKY:   I would have great difficulties with my case.  I would say – perhaps that is not the correct answer.  First of all, we put our case fundamentally on what Mr Justice Deane said in Giannarelli and what Mr Justice Krever said in Canada.  None of the policy reasons in Rondel v Worsley could possibly validly stand in the way of a person coming to court to bring a valid claim for negligence.  As Mr Justice Deane said at page 587 of Giannarelli:

MR JACKSON:   Your Honour, it is advising the client on how attempts at persuasion are likely to, as it were, go.

KIRBY J:   Well, according to the statement of claim, the second respondent said he could persuade the judge to give a bond or suspended sentence for a charge of rape, which seems a rather dubious proposition.

MR JACKSON:   Your Honour, the immunity would be of little use if it went only to the cases that were easy to win.  It would prevent there being the vexation of being sued, if it could not go further than that. 

CALLINAN J:   Mr Jackson, there may be others, but I can only think of three other professions where persuasion of the mind and seeing into the mind and attempting to anticipate how the mind might react are requirements – it seems to me, psychiatry, psychology and perhaps teaching.  There may be others, but ‑ ‑ ‑

KIRBY J:   The church, too.

CALLINAN J:   Well, you are not likely to suffer any damages.

KIRBY J:   Not in this life.

McHUGH J:   What about eternal damnation?

CALLINAN J:   I mean, damages assessable in money.  Are there any other professions which require the sense of techniques and insights a barrister needs?

MR JACKSON:   Your Honour, the only possibility would be that I suppose there would be some tribunals that people might appear before.

CALLINAN J:   They are analogous with courts anyway.

MR JACKSON:   Yes.  Your Honours, I can conclude on this aspect of it.  The legal system is inherently adversarial.  A large proportion of those involved are necessarily losers rather than winners.  Many losers are very unhappy and seek to recoup their losses making someone else bear the blame.  Many, of course, as your Honours would be aware, become obsessive about it.  Our submission is that the immunity performs a useful function in protecting the adversarial system.

KIRBY J:   Many people who suffer failed operations get very grumpy too, but we do not keep them out of our courts.  They can come and sue.

MR JACKSON:   No, quite, your Honour.  We do not let everyone who has a cause of action for negligence into the courts either.  That is certainly so in respect of ‑ in any sense of having a prospect of success, that applies to some cases of financial loss, for example.

GLEESON CJ:   Was there a time when physicians could not sue to recover their fees?

MR JACKSON:   A long time ago, I think, your Honour.

GLEESON CJ:   When that was the case, were they regarded as being immune from liability for negligence?

MR JACKSON:   Your Honour, I do not know the answer to that.  It was a disability, I think, brought about – the precise reason for it I am not too sure and I am not certain whether it applied only to physicians or to surgeons whose background ‑ ‑ ‑

GUMMOW J:   They were rather lower down the scale.

CALLINAN J:   They were virtual barbers.

MR JACKSON:   Yes, they were the ‑ ‑ ‑

CALLINAN J:   There was a special rule about common callings, was there not?  I think surgeons may have been members of a common calling.

MR JACKSON:   Your Honour, there were some.  I cannot give your Honour an answer to that immediately, I am afraid.

KIRBY J:   We made some progress with surgeons in accountability before the courts of law but not so far with barristers or, apparently, solicitor advocates.

MR JACKSON:   Yes.  Of course, your Honour, barristers can be and are disciplined by the courts.  Your Honours, could I come then to the next aspect with which I wish to deal.  The result of the applicant’s argument is that of the various participants in proceedings in a court it is only the advocate who is potentially liable to pay to any person and judges, witnesses and jurors are not liable.  Nor, of course, is the opposing advocate liable to the other party for the manner of conduct of the opposing party’s case, or for anything said or done or not said or done in relation to it.  Your Honours, at common law there is absolute privilege for what is said in court by an advocate.  That is referred to in Munster v Lamb.

KIRBY J:   This, again, is in court.

MR JACKSON:   Yes, it is, your Honour.

KIRBY J:   But if a judge, after a case, goes out of the court and starts defaming a person who has been before them, there is no question that they are protected in the law of defamation.  They are liable, like any other citizen.

MR JACKSON:   Your Honour, I am not really speaking about what might happen after court but what happens, first of all, in court and in ‑ ‑ ‑

KIRBY J:   It would be before the court.  If a judge starts abusing the judicial physician, the judge is liable.

MR JACKSON:   Your Honour, I am not debating that possibility.  What I am seeking to say is that in relation to the conduct of proceedings in court and the extension, if one likes to call it that, to matters intimately connected with the court, there is, in our submission, the – whether one calls it the absolute privilege, or one calls it the immunity or the absence of a relevant duty of care that exists.  Could I take your Honours very briefly to Munster v Lamb (1883) 11 QBD 588.

That was a case, your Honours, of a solicitor advocate.  Your Honours will see at page 593 commencing about point 7 on the page, there was an allegation of defamation.  Your Honour, the point of my taking the Court to the case is simply to indicate that the basis of the privilege goes beyond defamation actions and it goes beyond simply a provision which is designed to encourage people to tell the truth.  Could I indicate where the passages are without going through them at any length.  Your Honours will see Justice Mathew in the Divisional Court at page 593, about point 7, going through to page 595, about point 2.  Your Honours will see then when the matter went to the Court of Appeal, the Master of the Rolls, at page 600, about point 9 on the page, said:

But it was contended that an advocate cannot claim the benefit of the privilege unless he acts bona fide, that is, for the purpose of doing his duty as an advocate, and unless what he says is relevant.  That is the question which we now have to determine.

Now, your Honours, through the remainder of that page and pages 601, 602 and 603, going to the bottom of page 603, was a reference to the role of counsel in the proceedings, and to the fact that there is an immunity or privilege which goes beyond simply defamatory things but goes to anything that was done or said in court.  Your Honours will see about ‑ ‑ ‑

KIRBY J:   But you have to consider the context.  It relates to words spoken with relation to and in the course of the inquiry before a judicial tribunal.

MR JACKSON:   Of course, your Honour.

KIRBY J:   This is beyond the bright line.  It is not really to our present point.

MR JACKSON:   Your Honour, the point I am seeking to make about it is that what one has in the type of action that is brought now, it is an action dealing with the conduct of counsel and the conduct that on any view is in relation to litigation.  When the matter comes to be dealt with – I am sorry, I am putting it badly, your Honour.  What I am seeking to say is this.  In litigation of the present kind, one of the matters that has to be examined is what was the consequence of what was done?  In looking at what was done, you have a situation where the people who appeared in the case have an absolute immunity in relation to what they did, you have a judge or jurors who cannot be required to give evidence about what happened.  Witnesses, your Honours, have an absolute privilege in relation to what they did.

One sees that in this case - and I will refer your Honours as well to the bottom of page 603 to about halfway down page 605 – that it is said that the same privilege is one which attaches to counsel for the public good.  Now, your Honours, it has been decided that the privilege extends to matters intimately connected, et cetera.  In those circumstances one has a situation where the only persons who would be subject to suit would be the people who are the barristers.  The rule that is referred to in Munster v Lamb is one which is not confined to defamation actions – that was referred to by Chief Justice Mason in Giannarelli at pages 557 and 558.

GUMMOW J:   Like Sir Anthony, the Master of the Rolls said the rule was founded on public policy.  It says that at 605.

MR JACKSON:   Yes, indeed.  It is, in our submission, your Honours, a rule of public policy.  One notes the emphasis on the vexatious defending of actions that is referred to also in that case.  Now, that concept, your Honours, of protecting people from vexation is something which is referred to and relied upon elsewhere.  One sees it in Giannarelli 165 CLR 543 at 573. If I can go to that for a moment, your Honours, per Justice Wilson about point 3 on the page, he said:

But it is the threat of litigation, not the likelihood of defeating such litigation, which is material.

Justice Brennan, at page 579, about point 4 says:

Counsel who take part in proceedings in court (as well as witnesses and judges) must be able to perform their primary duty free from the chilling threat of civil suit by the parties to the litigation.

Could I say, your Honour, before your Honour says to me, he is speaking about things in court ‑ ‑ ‑

KIRBY J:   I was not going to say anything, Mr Jackson.

MR JACKSON:   And at the bottom of that same paragraph, you will see that he says what he “would hold the common law to be” and that refers to preliminary decisions as well.  Finally, Justice Dawson, your Honours, at page 595, about point 4, says:

Fundamental to the administration of justice is the opportunity which the law affords to all those who are participants in proceedings in a court to speak and act freely, within the rules laid down, unimpeded by the prospect of civil process as a consequence of their having done so.

To the same effect, at page 596, about point 3:

And it is to be remembered that in either case it is protection against actions which are ill founded as much as against those which are soundly based which is necessary.

To the same effect was Justice Laurenson in Sun Poi Lai – I am sorry, your Honours, it is at paragraph [53] in the unreported version.  I will endeavour to give your Honours a reference to the provision in the New Zealand Law Reports – paragraph [115]. 

The House of Lords in Hall v Simons rather dismissed this issue, but your Honours, in our submission, that does not give sufficient weight to it.  The relevant passages in Hall are Lord Steyn at page 681F and Lord Hoffman 692H. Your Honours, in our submission, the notion that in Australia the claims will be dismissed forthwith, absent any immunity, is really, with respect, quite unreal. There may be a need to defend the claims over years with an attendant taking up of time, cost, adverse publicity and effect on practice, and that cannot be really overstated.

KIRBY J:   That is what many doctors say about the Rogers v Whitaker and other principles. 

MR JACKSON:    Well, your Honour, indeed, it does not follow, however, that the situation should be exacerbated.

CALLINAN J:   Well, Rogers v Whitaker does not really produce that result.  Rogers v Whitaker really only requires doctors to be much more careful in telling patients what the risks are.

KIRBY J:   And that is what the plaintiff in this case asserts he should have had and did not get.

MR JACKSON:    Well, your Honour, I understand that is what the contention is.

KIRBY J:   In Rogers v Whitaker, he had his day in court and won, and this plaintiff is barred at the gate of the court.  That is the difference.

MR JACKSON:    Well, your Honour, barred because an immunity which serves, in our submission, a higher end.

CALLINAN J:   I was talking in the context of defensive practice only, and Rogers v Whitaker does not lead to any defensive practice of medicine, if properly understood.

KIRBY J:   It probably does lead to doctors telling patients much more.  “Nanny knows best” is out the window in the medical profession.  At least in my experience, they are much more careful about telling you the risk, which is a good thing, and it is the result of legal holdings.

MR JACKSON:   Your Honour, it is difficult to respond, with respect, to those views, but could I just say ‑ ‑ ‑

KIRBY J:   But that is the role of the law of tort, Mr Jackson.  The role of the law of tort is not just to give a particular plaintiff damages.  It is to hold people, and especially professional people, to high standards of care.

MR JACKSON:   But, your Honour, one does have to look at what is the milieu in which the activity takes place.  The activity with which this case and the immunity is concerned is as part of the public activity of matters that are involved in litigation.  Could I say that it was said in the Hall Case in the House of Lords that the immunities of other persons in litigation were based solely on encouraging freedom of speech.  No doubt that is one factor.  It is not the only one though.  The immunity of judges, jurors and witnesses goes beyond actions for defamation and extends to any cause of action, whether for negligence or not.  A juror cannot be sued for negligence. 

Lord Hoffmann in Hall [2002] 1 AC at 698 said that the judge is bound by a judicial oath, but lawyers in Australia all take oaths or affirmations on admission and do so publicly in court. It is a solemn occasion having more than a pure symbolic meaning. Your Honours, one thing that was suggested in Hall was that only the lawyer has any duty of care.  That is not, with respect, quite so, and it depends a little on the sense in which one uses “duty of care”.  Lord Pearce adverted to this in Rondel [1969] 1 AC 191 at 270E to 271C.

Your Honours, as one will see from that passage, in circumstances where – I am sorry, I was going to say, page 270E – your Honours will see the passage commencing, and then at the top of the next page:

the judge and jury owe this duty of care equally to both sides –

not speaking about a duty for which there is an obligation in damages, but a plain duty of care, referred to at the top of that page.  In circumstances of that kind, why, one would ask, should the advocate bear the whole brunt of the loss?  That is an aspect referred to in the same passage, and it was referred to also by Lord Hobhouse in Hall v Simons [2002] 1 AC 615 at 741B. Your Honours, I see the time. It would assist me greatly, if I may say so, if I could take perhaps take five minutes longer.

GLEESON CJ:   How long do you expect to require, Mr Young?

MR YOUNG:   We would estimate one hour, your Honour. 

GLEESON CJ:   Yes, Mr Jackson. 

MR JACKSON:   Thank you, your Honour.  Could I come then to the question of the second trial a little more specifically.  Your Honours, in only a relatively few cases will the effect of the suggested negligence be clear.  In most cases, a very real question will be, what is the effect of the so‑called negligent act or omission?  Because, in the end, the task of the advocate is to take, or suggest the taking of, the course most beneficial to the client, and the suggested negligent act or omission may have had no effect at all upon the person whose decision matters, namely, the judicial officer or officers or members of the jury.  Yet it is not possible to adduce evidence from the persons whose judgment is said to have been affected. 

Evidence cannot be called from the judge or magistrate, or from the members of the jury, or, if the alleged negligence happened on appeal or in a multi‑member tribunal, from any of the members of the court or tribunal.  This was adverted to by Justice Wilson in Giannarelli 165 CLR 543. Your Honours will see that at page 574.3.

In the present case, the members of the first jury might well have said evidence of the plea of guilty at the committal made no difference to us.  We would have arrived at the same result in any event, but that evidence cannot be called.  Your Honours, is evidence to be given, perhaps by retired Justices of this Court, of the prospects of success of an application for special leave to appeal to this Court from the decision of the Court of Appeal setting aside the conviction.

Your Honours, this issue is one that again, in our submission, is put well by Justice Charles in the article to which I referred to earlier “The Immunity of the Advocate”.  It is the passage under the heading “Collateral attack and the problem of relitigation”.  It is the whole passage, but the most essential part is in the paragraph commencing “The rule in Hunter’s case” to the end of that section.

HAYNE J:   Page 236.

MR JACKSON:   Thank you, your Honour.  Now, your Honours, could we say something also about the question of a duty to the court.  In the conduct of litigation and in advising as to conduct, lawyers are subject to a number of different obligations and loyalties.  They must act for their clients, of course, but they are also constrained by their duties to the court and there are duties of various kinds:  disclosure; not to abuse the court process; not to corrupt the administration of justice; to conduct cases efficiently and expeditiously and to do any of those things may conflict with the client’s desires and the client may well, if he loses, look to the lawyers.  Your Honours, in relation to that aspect of the case, we would adopt the second respondent’s submissions at paragraphs 63 to 78.

Your Honours, as to the question of proceedings in court only, could I refer your Honours to our written submissions, paragraphs 32 and following.  Could I just say, your Honours, that the “court door” test, in our submission, is not satisfactory.  Does it mean court door, meaning entrance to the courtroom literally, court building, but not next door or across the road or in the barrister or solicitor’s rooms, even if it be next door.

Finally, could I deal with the question which is referred to in our written submissions at paragraphs 40 to 42.  That is the question of whether the immunity applies to cases of the present kind.  Your Honours will see that this was a case where the solicitor was advising jointly with counsel,

the advice was given at the same time.  In those circumstances, to rule that the barrister may be excused from liability, but the solicitor could be liable, in our submission, creates an artificial distinction and creates, rather than removes, an injustice.  We would submit that the passage referred to from Justice Branson in Boland v Yates at first instance is right and represents the law.  Your Honours, as to the other matters in our written submissions, could we simply refer to those.

GLEESON CJ:   Thank you, Mr Jackson.  We will adjourn until 10.15 tomorrow morning and the next case will be taken not before 11.15.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 21 APRIL 2004