Darrin Michael Gillies v William Brewer

[2014] NSWSC 1198

Supreme Court

New South Wales

Medium Neutral Citation:

Darrin Michael Gillies v William Brewer [2014] NSWSC 1198

Hearing dates:

15 August 2014

Decision date:

15 August 2014

Before:

Rothman J

Decision:

(1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, the proceedings be dismissed against the first and second defendants on the basis that:

(a) No reasonable cause of action is disclosed;

(b) By virtue of the operation of s 14 of the Limitation Act 1969, the proceeding is not maintainable; and

(c) To the extent not otherwise covered by 1(a) above, the first and second defendants are immune from suit.

(2) The plaintiff shall pay the first and second defendants costs of and incidental to the motion and the proceedings.

Catchwords:

ADVOCATES' IMMUNITY - barrister and solicitor sued for work done in court or closely connected therewith - unclear whether contract or tort - work done on criminal proceedings - plaintiff convicted - conviction upheld on appeal and grounds related to impugned conduct were dismissed - no possible damage - immunity applies - abuse of process - proceedings summarily dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)
Limitation Act 1969 (NSW)

Cases Cited:

Adams by her friend O'Grady v State of New South Wales [2008] NSWSC 1257
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Attorney-General (NSW) v Spautz [2001] NSWSC 66
Argyropoulos v Layton [2002] NSWCA 183
Bird v Ford [2013] NSWSC 264
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Brewer v Brewer [1953] ALR 441; (1953) 88 CLR 1
Clavel v Savage [2013] NSWSC 775
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1Donnellan v Woodland [2012] NSWCA 433General Steel Industries v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Gillies v DPP (NSW) [2008] NSWCCA 339
Haines v Australian Broadcasting Authority [1995] NSWSC 136; (1995) 43 NSWLR 404
Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539
Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22
Kelly v Jowett [2009] NSWCA 278
Lanphier v Phipos (1838) 8 Car. & P. 475
MacRae v Stevens [1997] ANZ ConvR 129
O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81-23
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin [2001] NSWCA 142
Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Ward v Lewis (1896) 22 VLR 410
Wilson v Rigg [2002] NSWCA 246

Category:

Principal judgment

Parties:

Darrin Michael Gillies (Plaintiff)
William Brewer (First Defendant)
Lesly Randle (Second Defendant)

Representation:

Counsel:
P A Horvath (First Defendant)
D Priestley (Second Defendant)
Solicitors:
No appearance (Plaintiff)
Moray & Agnew (First Defendant)
HWL Ebsworth Lawyers (Second Defendant)

File Number(s):

2013/370088

Publication restriction:

None

Judgment

1. HIS HONOUR: By Statement of Claim filed 9 December 2013, the plaintiff, Darrin Gillies, initiated proceedings against his former counsel, Mr Brewer, the first defendant, and his former solicitor, Ms Lesly Randle, the second defendant. The plaintiff seeks recovery of monies allegedly paid by the plaintiff to the first and second defendant for provision of their professional services during the course of criminal proceedings in 2006. Although not absolutely clear, the plaintiff seeks recovery of a sum of $90,000, being the amount paid by the plaintiff to the defendants for their legal services, plus an amount of $25,000 for the services of an expert witness, Dr Storey-Whyte. There may also be a claim for damages arising out of the plaintiff's imprisonment.

Background

1. The plaintiff was charged with three counts of having sexual intercourse without consent, one count of attempted sexual intercourse and one count of assault with an act of indecency (together, the sexual assault charges). The charges concerned events on the night of 9 July 2004.

1. The plaintiff retained the second defendant, a solicitor, on 14 February 2006 to provide legal services in relation to the sexual assault charges. The second defendant represented the plaintiff at directions hearings on 16 February 2006 and 3 March 2006 and otherwise throughout the trial. The second defendant instructed the first defendant, a barrister, at trial. The trial commenced on 31 July 2006 in the New South Wales District Court before Solomon DCJ and a jury of 12. At his trial, the plaintiff pleaded not guilty to each count.

1. On or about 17 August 2006, during the trial, the second defendant withdrew the first defendant's instructions to appear. This was done shortly after the first defendant had stated that the plaintiff's case was complete, but prior to the closing addresses. The second defendant applied for a discharge of the jury at this stage, which request was refused. Consequently, the second defendant appeared for the plaintiff in the proceedings thereafter, without counsel. It is an issue of contention whether the withdrawal of counsel's instructions was with or without the consent of the plaintiff.

1. On 24 August 2006, the plaintiff was convicted of one count of sexual intercourse without consent. He was sentenced on 1 December 2006 to a term of imprisonment for a non-parole period of five years, with a further term of one year and eight months.

Current proceedings before the Court

1. On 9 December 2013, the plaintiff filed a Statement of Claim seeking relief due to "the unlawful failure to follow the instructions provided by the plaintiff in order to gain personal financial benefit" in the course of his criminal indictment and subsequent trial.

1. The plaintiff submits that the second defendant "acted well outside of her instructions" when appearing on behalf of the plaintiff in the proceedings on 26 February and 3 March 2006, and during the criminal trial held between 31 July and 24 August 2006. This is particularised by reference to the second defendant "not dealing with a subpoena issue in respect of the Crown's expert Mr Rowlison"; committing the plaintiff to a trial date; and dismissing the first defendant on 17 August 2006 without the plaintiff's instructions.

1. The plaintiff further alleges that:

"...the first defendant acted well outside of the agreed instructions set by the plaintiff and he does not call either expert to the stand to give their testimony in support of the plaintiff's defence"

and:

"It was a term and condition that if the first and second defendants were to represent the plaintiff in his trial then they were to contest the Crown's evidence with the use of the plaintiff's independent and appropriately qualified experts in support of the plaintiff's defence."

1. The plaintiff does not further particularise his claim, nor has he filed any supporting evidence.

1. The current proceedings have been before this Court on three previous occasions. On 4 April 2014, the matter was before Registrar Bradford for a directions hearing. The plaintiff attended the directions hearing and consented to short minutes of order proposed by the first defendant. The plaintiff subsequently left the Court prior to the matter being reached in the list and the first defendant mentioned the plaintiff's appearance. The plaintiff failed to appear at the two subsequent directions hearings on 16 May 2014 and 27 June 2014.

1. On 4 April 2014, Registrar Bradford made orders requiring the plaintiff to serve any affidavit evidence on the motion by 9 May 2014. Subsequently, on 16 May 2014, Registrar Bradford made orders requiring the plaintiff to file and serve evidence in reply to the defendants' motions by 24 June 2014. On 27 June 2014, Registrar Bradford made orders requiring the plaintiff to serve written submissions in reply by 1 August 2014.

1. To date, the plaintiff has failed to serve any evidence or respond to the first defendant's or second defendant's motion, notice of which was filed and served on 16 April 2014 and 13 June 2014 respectively.

1. Affidavits filed on behalf of the first and second defendant attest that, to date, the plaintiff has also failed to respond to correspondence regarding this matter since 4 April 2014. Affidavits also establish that the plaintiff was served with the motions; the affidavits on which the defendants rely; and a notice of hearing of the motions. He did not appear.

1. The first and second defendants seek to have the Statement of Claim struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR).

1. The first defendant seeks inter alia to strike out the Statement of Claim and proceedings as against the first defendant on the basis that:

"(a) no reasonable cause of action is disclosed; and/or

(b) by virtue of the operation of section 14 of the Limitation Act 1969 (NSW) the proceeding is not maintainable; and/or

(c) the first defendant is immune from suit."

1. The second defendant submits, in the alternative to their submission under to r 14.28, that the proceedings be dismissed pursuant to r 13.4 of the UCPR, alleging:

"(a) the Statement of Claim discloses no reasonable cause of action, is frivolous, vexatious and embarrassing; and/or

(b) the proceedings are an abuse of process of the Court, in that they involve an impermissible collateral attack on the decision of another court; and/or

(c) the claim is statute barred, having been filed more than six years after the accrual of any cause of action;

(d) the second defendant is immune from suit as she is protected by advocate's immunity;

(e) the plaintiff's chose in action is not able to be prosecuted, as this vested in his trustee in bankruptcy when he became bankrupt in December 2006."

1. The first and second defendants also seek a determination of a separate question pursuant to r 28.2 of the UCPR, regarding whether, should any liability arise from the Statement of Claim, the defence of advocates' immunity would be a complete answer to the plaintiff's claim.

1. As the orders sought in both the first and second defendants' motions are in substantially the same terms, I will deal with their submissions together.

Principles relating to Summary Dismissal

1. The first and second defendants, as applicants on the motions, bear the onus of establishing that there is no issue that prevents the denial of the plaintiff's ordinary right to have his claim tried. The test is stringent and demanding and requires a high degree of certainty about the ultimate outcome of the proceedings if it were to be tried in the ordinary course: see Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552.

1. In General Steel Industries v Commissioner for Railways [1964] HCA 59; (1964) 112 CLR 125, Barwick CJ stated:

"...the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."

1. However, where the case of the plaintiff is clearly untenable and cannot, on that aspect, succeed, a defendant will be entitled to summary dismissal.

1. It is the above principles that I apply to the matters now before the Court.

Has the plaintiff disclosed a reasonable cause of action?

1. The Statement of Claim pleads relief for "the unlawful failure to follow the instructions of the plaintiff in order to gain personal financial benefit as pleaded here within".

1. As noted above, the plaintiff refers to the actions of the second defendant at the directions hearings on 16 February and 3 March 2006 and alleges that she "acted well outside of her instructions".

1. The plaintiff also alleges that the second defendant "sacked the First Defendant and was without the instruction of the Plaintiff" and that it was "a term and condition" that the defendants were to contest the Crown's evidence through the use of the plaintiff's experts.

1. I can only assume, given the lack of particulars, that this reference to "term and condition" is a reference to a term or condition of the retainer. The plaintiff has not specified to which term or condition this purported breach relates.

1. The claim pleads the relief to be "one for recovery of amounts of money" for $90,000 and $25,000. The $90,000 is the sum paid to the defendants for the provision of their professional services. The $25,000 is in respect of an expert witness's account, being Dr Storey-Whyte. It is unclear whether the expert's account has been paid. It is also unclear whether the claim is made in contract or in tort, or whether other damages are claimed as a result of the plaintiff's incarceration.

1. The plaintiff also seeks aggravated, exemplary and general damages, however there is no pleading in support of these claims for relief.

1. The first problem with the claim, as currently pleaded, is the failure to particularise the first and second defendants' conduct in the form of being wrongful in a legal sense. That is, the plaintiff does not allege that the conduct of the first or second defendant constituted negligence or other form of tort, nor does he substantiate, under the law of contract, his allegations that the first or second defendant were in breach of her or his retainer.

1. In addition to the failure to detail the allegations of wrongful conduct under law, the plaintiff has also failed to particularise any financial loss attributable to the wrongful conduct of the first or second defendant. The only damage or loss that can be inferred from the Statement of Claim is that the "failure to abide by instructions" resulted in the amount paid for legal fees somehow constituting contractual damage.

1. In their written submissions, both the first and second defendants note that it is unclear whether the Statement of Claim additionally pleads damage or loss arising from the finding of guilt. If the plaintiff seeks damages for his imprisonment, he faces insurmountable obstacles. His imprisonment is a result of a conviction. The courts have adjudged him guilty and imposed an appropriate sentence. The sentence was imposed on the plaintiff for conduct for which the law holds him responsible. In the absence of an order quashing the conviction and sentence, the plaintiff's lawful custody cannot be "damage" in any justiciable sense.

1. In Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257, I said:

"[123] There was, and is, in place a lawful order of the Court of Criminal Appeal imposing a limiting term on Ms Adams. The restrictions on her liberty are the result of the lawful conduct of the authorities. It is instructive to ask what, precisely, the State of New South Wales could do to avoid this damage. Once the Court of Criminal Appeal imposed the limiting term, it was a statutory duty imposed upon the authorities to ensure, in accordance with the order of the Court, that Ms Adams' liberty was constrained.

[124] Even in wrongful imprisonment cases, damages are awarded only up to the time of a lawful order authorising imprisonment: Presland, supra, [100]-[101]. The same principle should be applied in the determination of damages for negligence: Presland, ibid.

[125] Whatever "damage" was suffered by Ms Adams was the result of a lawful order issued under the Mental Health (Criminal Proceedings) Act and is not "damage" that is compensable under the civil law."

Note: reference to Presland is a reference to Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22.

1. Adams concerned a situation where, for reasons of mental illness, the plaintiff was not fully responsible for her actions. Here, the plaintiff has been judged responsible for his conduct and punished accordingly. The punishment is not "damage", but the due operation of the law: see also Clavel v Savage [2013] NSWSC 775.

1. Accordingly, while it is not clear that the plaintiff intended to rely on the guilty verdict and subsequent imprisonment to ground his claim for damages or loss, if he were so intending, the claim would be futile and I will not further discuss the issue.

1. I find that the Statement of Claim fails to disclose a reasonable cause of action in that regard.

Does the Claim amount to an Abuse of Process?

1. As noted above, the plaintiff was convicted and sentenced to imprisonment for a non-parole period of five years, with a further term of one year and eight months. The plaintiff appealed both his criminal conviction and his sentence to the New South Wales Court of Criminal Appeal. The Court of Criminal Appeal granted leave to appeal, which appeal was heard on 27 August, 30 September and 1 October 2008. The Court of Criminal Appeal delivered judgment on 23 December 2008, dismissing the appeal: Gillies v DPP (NSW) [2008] NSWCCA 339.

1. The bulk of the grounds on appeal related, in one way or another, to the conduct of the plaintiff's solicitor and counsel during the trial, being the first and second defendant in the current proceedings.

1. The grounds regarding the conduct of the plaintiff's legal representatives were linked to a second group of complaints regarding the authenticity of videotapes of the sexual activity, presented by the prosecution in the course of the trial. The plaintiff also appealed on two other grounds, which are not directly relevant to the current proceedings.

1. During the appeal proceedings, the applicant tendered evidence intended, as noted by the Court of Criminal Appeal at [25], to:

"... demonstrate a miscarriage of justice through:

(a) the failure of his lawyers to follow instructions with respect to trial strategy; and

(b) inappropriate pressure placed on him by his lawyers to take a course contrary to his instructions."

1. The Court of Criminal Appeal observed, at [26]:

"This course would, in most circumstances, be misconceived. A miscarriage of justice will generally be capable of demonstration only by reference to the objectively verifiable circumstances of the trial."

1. However, the Court of Criminal Appeal acknowledged that an exception may arise in a case where withdrawal of instructions in the course of a trial is followed by an application for an adjournment. Their Honours found such an exception applied in the appeal proceedings: Gillies v DPP (NSW) at [27].

1. As a consequence of this finding, the Court of Criminal Appeal considered the conduct of the applicant's lawyers, being the first and second defendant, in considerable detail: see Gillies v DPP (NSW) at [32] - [71]. Their Honours held that the conduct of the plaintiff's legal representatives did not amount to a miscarriage of justice. In coming to this conclusion, the Court of Criminal Appeal dismissed all grounds of appeal against the plaintiff's lawyers, including, relevantly, whether it was appropriate for counsel to challenge the authenticity of the videotape. The Court of Criminal Appeal also found that the plaintiff accepted legal advice to this effect.

1. The plaintiff's Statement of Claim seeks relief from the first and second defendant relating to their conduct in the criminal proceedings outlined above.

1. An attempt to relitigate an issue resolved in earlier proceedings in a court of competent jurisdiction may, depending on the facts, involve an abuse of process: see, for example, Reichel v Magrath (1889) 14 App Cas 665; Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275 at 279; O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315. As noted by Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at [37] - [39]:

"...proceedings should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police (39) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."

1. However, the power to strike out a Statement of Claim as an abuse of process must be exercised sparingly and only upon examination of the relevant circumstances of the particular case before the court. As noted by Giles CJ in Eq in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81-423 at 64, 089:

"...whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice..."

1. Hunt CJ at CL provided a helpful guide in balancing such considerations in Haines v Australian Broadcasting Authority [1995] NSWSC 136; (1995) 43 NSWLR 404, where his Honour noted, at [31]:

"The issue to be determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former ... It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result."

1. This creates several hurdles that must be satisfied in order for a party to be able to relitigate an issue determined in a prior proceeding.

1. First, the previous judicial decision is required to have resolved all those matters that are legally indispensable to the conclusion: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532; Brewer v Brewer [1953] ALR 441; (1953) 88 CLR 1. This extends past the points upon which the court was required to adjudicate to include "every point which properly belonged to the subject matter of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time": Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

1. The issue as to the competence of the plaintiff's legal representatives was the primary ground for his appeal to the Court of Criminal Appeal. Given the detailed examination of that issue by the Court of Criminal Appeal, it is not the function of this Court, as currently constituted, to re-examine this issue, particularly given the inadequacy of the plaintiff's particulars and the lack of evidence currently before it.

1. The second hurdle regards the identity of the party. Abuse of process by relitigation has a wider reach than the doctrine of res judicata and issue estoppel, extending to preclude a party relitigating an issue against persons who were not party to the original proceedings: Reichel v Magrath; Rippon v Chilcotin [2001] NSWCA 142.

1. The plaintiff instigating the current proceedings is the same person as the applicant in Gillies v DPP (NSW). It is irrelevant that the first and second defendants were not party to the Court of Criminal Appeal hearing.

1. The plaintiff has failed to establish that the overall balance of justice requires relitigation of the issues explored by the Court of Criminal Appeal. Accordingly, as the claim is seeking to litigate issues resolved in earlier proceedings in a court of competent jurisdiction, the claim is an abuse of process.

1. Thirdly, the allegation in the claim would, even if it were possible to agitate it, once more fail on the question of damage. If, as the plaintiff claims, the defendants did not challenge the admissibility of evidence, or its veracity, and/or should not have withdrawn the second defendant's instructions, what flows? The Court of Criminal Appeal has held that the evidence was admissible, it has held that the verdict was not unreasonable and that there was no miscarriage of justice. On the basis of the appeal judgment, no challenge to the evidence or its veracity would have altered the result. Nor would the continued appearance of the first defendant.

Are the proceedings Statute Barred?

1. Section 14 of the Limitation Act 1969 provides that a plaintiff has six years from the date of the accrual of a potential cause of action to file a claim. A cause of action in contract generally accrues on the date in which the contract is breached: Ward v Lewis (1896) 22 VLR 410; Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539. In tort, a cause of action accrues upon the sustaining of actual or measurable loss or when a legal right is infringed, being when measurable damage is first suffered, even if damage continues to accrue: Argyropoulos v Layton [2002] NSWCA 183.

1. It is unclear whether the plaintiff's claim is framed in contract or tort, or both. For completeness, I will consider whether a claim in either contract or tort would be within the legislative timeframe.

1. Assuming the claim is based in contract, the cause of action would have accrued on the date the plaintiff alleges the defendants were in breach of their retainer, being the date the first defendant and the date the second defendant allegedly failed to follow his instructions. As noted above, the second defendant terminated the retainer of the first defendant on 17 August 2006. The second defendant's retainer can be said to have concluded on the date the plaintiff was convicted, being 24 August 2006. Therefore, any potential cause of action in contract accrued at or before these dates.

1. Alternatively, assuming the claim is based in tort, the cause of action would have accrued when the plaintiff sustained damage: Wilson v Rigg [2002] NSWCA 246. Given the lack of particulars, it is not clear upon which action in tort the plaintiff seeks to rely. One can only assume it is negligence. Therefore, any cause of action would have accrued on the first date in which the first and second defendant purportedly acted in contradiction of the plaintiff's instructions, or, at the latest, the date when the verdict of guilt was delivered. This would result in a similar, if not identical, timeframe as any claim in contract.

1. Consequently, the plaintiff was required to file his Statement of Claim on or before 17 August 2012 with respect to the first defendant; and 24 August 2012 with respect to the second defendant.

1. The plaintiff filed the Statement of Claim on 9 December 2013. This is more than 12 months outside the limitation period prescribed by s 14 of the Limitation Act for a claim against either the first defendant or the second defendant. No leave has been sought to file the Statement of Claim out of time, nor is there any evidence suggesting that the plaintiff took reasonable steps to have the Statement of Claim served within the legislative timeframe.

1. Accordingly, by virtue of the operation of s 14 of the Limitation Act, the proceeding is not maintainable.

Are the first and second defendant immune from suit?

1. The basis of advocates' immunity was discussed in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, particularly by Mason CJ. The Chief Justice referred to the judgment of Tindal CJ in Lanphier v Phipos (1838) 8 Car. & P. 475 at 479, where it was noted, "Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill". His Honour continued, at 555:

"On the other hand, the common law has for a very long time recognised that the barrister is not subject to such general duty of care. The immunity of the barrister from liability in negligence to his client, at least in respect of court work, is supported by powerful authority, ancient and modern, in England, Scotland and Ireland.

...

Of the various public policy factors which have been put forward to justify the immunity, only two warrant serious examination. The first relates to the peculiar nature of a barrister's responsibility when he appears for his client in litigation. The second arises from the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings in negligence of issues determined in the principle proceedings."

1. The principle of advocates' immunity, as explained in Australia in Giannarelli v Wraith, is now well established in Australian law; see, for example, D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Attorney-General (NSW) v Spautz [2001] NSWSC 66. The High Court (Gleeson CJ, Gummow, Hayne and Heydon JJ) in D'Orta-Ekenaike v Victoria Legal Aid held, at [25]:

"....an advocate cannot be sued by his or her client for negligence in the conduct of a case, or in work out of court which is intimately connected with the conduct of a case in court..."

1. Their Honours continued, at [45]:

"...the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a particular type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be relitigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind."

1. The immunity applies to work in court, or with a connection to in court work. The test to determine whether work done satisfies this connection was expounded by Mason CJ in Giannarelli v Wraith at 559-60, where his Honour noted it was "artificial in the extreme to draw the line at the courtroom door", and stated that the connection includes both work done in court and "work done out of court which leads to a decision affecting the conduct of the case in court": see also Beazely JA in MacRae v Stevens [1997] ANZ ConvR 129.

1. To similar effect, in Giannarelli v Wraith, Brennan J reasoned, at 579:

"...neither a barrister nor a solicitor may be sued by a client in respect of any act done or omission made in the conduct of the client's case in court or in the making of preliminary decisions affecting the way in which the case is to be conducted when it comes to a hearing."

1. Furthermore, a solicitor acting in a litigated matter can enjoy wide protection under advocates' immunity, even in circumstances where counsel has been briefed: Bird v Ford [2013] NSWSC 264.

Tort

1. The conduct of the first and second defendant, about which complaint is made, consists solely of their actions, and arguably omissions, during the period in which the plaintiff retained them as his legal representatives to conduct his criminal trial.

1. Specifically, the plaintiff particularises the relief claimed as damages arising from the failure of the first and second defendants to act in accordance with relevant professional rules in their representation of the plaintiff in criminal proceedings. This was said to include the second defendant acting "well outside of her instructions" in two directions hearings and by dismissing the first defendant, and the first defendant doing same during a voir dire application.

1. It is difficult to imagine work that could more clearly fall within the category of work in court or, otherwise, fall within the category of work intrinsically connected with the conduct of a case in court than the representation of a plaintiff during directions hearings and voir dire applications and the engagement of or disengagement of counsel.

1. Notwithstanding that I have found that the conduct was intimately connected to the conduct of the criminal proceedings, I will, for completeness, deal with the plaintiff's submission that the conduct was "to gain personal financial benefit".

1. The plaintiff has failed to particularise this claim or support it otherwise. Consequently, it is not pleaded, nor is it obvious, that there is some other aspect of the first or second defendants' conduct that suggests they acted in a manner to which this immunity would not attach. On the contrary, the evidence before me indicates that both the first and second defendant acted in the usual and proper manner in the representation of the plaintiff in the interlocutory proceedings and at trial. This finding is supported by the decision of the Court of Criminal Appeal in the plaintiff's criminal appeal.

1. The application of the immunity depends on a question of fact, namely, whether the alleged conduct occurred in court or was "intimately connected" to the hearing of the case in court: Donnellan v Woodland [2012] NSWCA 433 at [265]. On the allegations in these pleadings, the acts or omissions of the first and second defendants relating to their conduct during the directions hearings and substantive trial, about which complaint is made, are so intimately connected to the conduct of the case in court that there is an immunity from suit in relation to them. The contrary is unarguable.

Contract

1. Should the plaintiff's claim rely on contract, it assumes that the first and/or second defendant breached their retainer by acting contrary to the plaintiff's instructions throughout the trial.

1. A legal practitioner owes a duty to a client to take reasonable care to exercise due care, skill and diligence by performing tasks to the requisite skill expected of legal practitioners in the profession: Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74 at 84; Hawkins v Clayton; Donnellan v Woodland. However, a legal practitioner's duty to his or her client is subject to an overriding and paramount duty to the court: Giannarelli v Wraith at 555. This duty may require a legal practitioner to act in a manner contrary to a client's instructions, or to act in a manner that may possibly disadvantage his or her client: Giannareli v Wraith at 556. This duty also extends to the administration of justice, requiring a legal practitioner to ensure, among other obligations, the expeditious and efficient conduct of litigation: Kelly v Jowett [2009] NSWCA 278 at [57].

1. Any retainer of a legal practitioner is subject to that legal practitioner's overriding duty to the court. It would be in direct contradiction to this duty for a legal practitioner to be required, despite the practitioner's view of the law, to challenge every piece of evidence relied upon at trial and to follow the instructions of a client without regard to the duty to the court.

1. This immunity extends to the plaintiff's claim to recover, from the first or second defendant, any costs associated with the expert witness that purportedly result from their failure to follow his instructions: D'Orta-Ekenaike v Victoria Legal Aid at [83]; Donnellan v Woodland at [232].

1. As a consequence of this immunity, both the first and second defendant are protected from a claim for damages, whether in tort or contract, arising from their conduct in representing him during the criminal proceedings.

Order

1. For all of the above reasons, the Court issued the following orders:

(1) Pursuant to r 13.4 of the UCPR, the proceedings be dismissed against the first and second defendants on the basis that:

(a)   No reasonable cause of action is disclosed;

(b) By virtue of the operation of s 14 of the Limitation Act, the proceeding is not maintainable;

(c)   To the extent not otherwise covered by 1(a) above, the first and second defendants are immune from suit.

(2)   The plaintiff shall pay the first and second defendants' costs of and incidental to the motions and proceedings.

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