Donnellan v The Public Trustee [No 2] - [2010] WASC 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DONNELLAN -v- THE PUBLIC TRUSTEE [No 2] [2010] WASC 214

CORAM: KENNETH MARTIN J

HEARD: 25 JUNE 2010

DELIVERED : 19 AUGUST 2010

FILE NO/S: CIV 2419 of 2004

BETWEEN: CHRISTINE ANNE DONNELLAN (By her next friends WALTER FRANCIS MARTINS and AUDREY CONSTANCE MARTINS joint plenary guardians and administrators)
Plaintiff
AND
THE PUBLIC TRUSTEE
Defendant
JACKSON MCDONALD
Third Party

Catchwords:

Abuse of process - Collateral attack against orders of District Court - Permanent stay - Application successful in part

Witness immunity principle - Strike out application - Successful in part - Paragraphs struck out - Reserved costs orders

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Rules of the Supreme Court 1971 (WA), O 76 r 10

Result:

Defendant's application successful in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr J D Allanson SC & Mr D Bruns
Defendant:     Mr G T W Tannin SC & Mr C Bydder
Third Party                  :     No appearance

Solicitors:

Plaintiff:     Griffiths & Godecke
Defendant:     State Solicitor for Western Australia
Third Party                  :     Pynt & Partners

Case(s) referred to in judgment(s):

Alpine Holdings Pty v Feinar [2008] WASCA 85
Arthur J S Hall & Co (A firm) v Simons [2002] 1 AC 615
C v FAI General Insurance Co Ltd (Unreported, QSC, 16 June 1998)
Cabassi v Vila (1940) 64 CLR 130
Cadwallender v The Public Trustee [2003] WASC 72
Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 269
Donnellan v The Public Trustee [2007] WASC 213
D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Fowler v Gray [1982] Qd R 334
Mickelberg v The State of Western Australia [2007] WASC 140
Musca v Columbini [1970] WAR 33
Sosa v Carter [1978] WAR 123
Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689
T'Hart v Director General of the Department of Community Development [2002] WASC 245

KENNETH MARTIN J:

Overview

The defendant applies to permanently stay components of the plaintiff's statement of claim as an abuse of process. Additionally, the defendant seeks to strike out parts of the re‑amended statement of claim (RESOC) on the basis that they infringe principles of witness immunity. The defendant also seeks to have some previous reserved costs determinations resolved in its favour.

Background

The plaintiff, born on 6 May 1957, sustained very serious head injuries in a motor vehicle accident in December 1973, when she was just 16 1/2 years of age.
In 1977, proceedings were instituted on her behalf against the negligent driver, a Mr Unkovich, who was insured through the compulsory motor vehicle insurance arrangements regulated by the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The Public Trustee, who is the defendant in these proceedings, was appointed as the plaintiff's next friend in 1977, in the proceedings commenced against the driver, as District Court action No 87 of 1977.
Liability was not in issue in those proceedings. The defendant driver's interests were represented by the statutory insurer, then the Motor Vehicle Insurance Trust.
On 2 August 1977, a consent judgment was entered in the District Court action in favour of the plaintiff. The terms of that consent judgment, after providing for a small award of special damages, dealt with the issue of general damages. The consent award provided for a lump sum payment of $75,000 to include all economic loss other than the costs of an attendant and associated worker's compensation and employer's liability insurance for the attendant. Importantly, cl 2(b) of the August 1977 consent judgment provided as to the issue of attendant care, that:
Periodic payments payable quarterly in advance for the cost of an attendant at present at the rate of $91 per week and as varied from time to time together with the cost of a Workers' Compensation and employer's liability insurance policy at present costing $12 per annum. The first of such quarterly payments to be paid on 2nd day of August, 1977 and to be continued during the Plaintiff's lifetime with liberty to apply to a Judge in Chambers by either party in respect of the costs of the attendant and/or the costs of the Workers' Compensation Insurance and employer's liability policy for such attendant.
The 1977 consent judgment also provided that investment of the $75,000 lump sum by the Public Trustee, not be restricted to the common fund.
The plaintiff, then known by her unmarried name of Christine Martins, was 20 years of age at the time of these 1977 settlement orders. The consent judgment and orders were approved by a judge, in accordance with the provisions of O 70 r 10 of the Rules of the Supreme Court 1971 (WA) (RSC), which were also applicable to proceedings in the District Court.
In 1977 the provisions applicable to settlements and compromises effected in respect of personal injury claims by infants or persons under a disability were in similar terms to what is still provided under RSC O 70 r 10(2), namely:
An application for approval under paragraph 1 -
(a)if made during the hearing of a cause or matter, shall be by summons in chambers;
(b)if made during the trial of an action or issue, shall be to the trial Judge on motion,
and shall be supported by affidavit and by the opinion of an independent counsel; but the court or Judge may dispense with the necessity of obtaining counsel's opinion.
The arrangements under the 1977 consent judgment for periodic payments for the cost of an attendant ran for 16 years, until 1993. Some correspondence passing between the statutory insurer and the Public Trustee on behalf of the plaintiff over that period is set out in attachments to the affidavit of Mark Tjhung sworn in these proceedings, on 12 June 2007. It will suffice to say that difficulties arose over time with the inadequacy of the $91 weekly amount, in terms of it (unsurprisingly) not keeping pace with the rising costs associated with engaging an attendant necessary to assist the plaintiff. Multiple disputation issues arose over appropriate rates of pay for the attendant, the number of hours of attendant care required, whether someone else was benefiting from Ms Martin's attendant care, the qualifications required for the attendant and the level of cost of the whole arrangement. There was also a dispute about the adjustable allowance under the 1977 consent judgment falling behind what was actually paid out to attendant carers for Ms Martins, need to draw upon the $75,000 lump sum invested to meet that arrears and even whether the arrears could be recovered from the statutory insurer.
In June 1984, Ms Martins, then aged 27, married Keith Donnellan. Her surname changed at that time. Mr Donnellan himself was blind. One of the matters asserted by the insurer was whether Mr Donnellan was also benefiting from the assistance of his wife's attendant, and if so, whether the insurer should be bearing all the costs of the attendant in those circumstances.
In January 1989, the Public Trustee acting as next friend on Ms Donnellan's behalf, filed a chamber summons in DCWA 87 of 1977. The summons sought an increase in the allowance for Ms Donnellan's attendant care costs. The summons also sought reimbursement in the amount of $35,646.66, which was asserted to be the difference between the moneys that had been outlaid by the Public Trustee for Ms Donnellan's attendant care in the period 1 July 1984 to 30 June 1988, as against the amount actually received from the insurer.
This chamber summons was made returnable before a judge in the District Court on 13 February 1989. It was supported by an affidavit of Albert James Allen, sworn by Mr Allen on 15 December 1988, as the then Public Trustee. It attached some correspondence passing between the Public Trustee and the insurer between July 1985 and December 1988.
The application for an increase in the allowance for attendant care was opposed. An affidavit in opposition sworn by Russell John Skerman of 21 March 1989 states, at par 2, that all orders proposed under the 1989 chamber summons were opposed. Paragraph 11 of Mr Skerman's affidavit expressed an objection to the claim made in respect of arrears. Mr Skerman deposed at par 11, by reference to the 1977 consent judgment:
The said judgment contained no reference to retrospectivity of any such change. The defendant has always complied with the terms of the order. The Public Trustee, agent for the plaintiff, has given no reason justifying its delay in making an application for an increase pursuant to the terms of the judgment. The defendant has never been in breach of the terms of the judgment.
Mr Skerman continued at par 12 to conclude his affidavit:
Further to the matters raised above, the defendant seeks an order pursuant to section 16(4)(B)(ii) of the Motor Vehicle (Third Party Insurance) Act 1943 as amended that this Honourable Court do order that the periodical payments referred to above be redeemed by payment of a lump sum. The defendant request that this Honourable Court receive evidence by affidavit and/or orally as to the appropriate rates of pay for an 'attendant' to give such necessary assistance for the plaintiff (only) in this case and applying the appropriate mathematical discounts, arrive at a current lump sum payout figure and, upon payment of that appropriate lump sum payout figure by the defendant to the plaintiff, thereby discharge the defendant from any further obligation under the said judgment.
Out of par 12 in Mr Skerman's affidavit, it can be seen that the idea for a redemption of the 1977 periodic payment order in respect of the cost of attendant care, emanated from the statutory insurer.
Opposition to any increase in the level of the attendant care allowance, as expressed under Mr Skerman's affidavit, appears to have led the parties into discussion about a compromise. No orders appear to have been made on the plaintiff's 1989 chamber summons. Negotiations appear to have continued between the Public Trustee and the insurer until 1993. I should observe at this point, that the Public Trustee's solicitors throughout, would appear to have been Messrs Jackson McDonald, who are joined as the third party to the present proceedings.
Four years later, on 29 June 1993, another chamber summons was issued out of the District Court in No 87 of 1977 by the Public Trustee on behalf of Ms Donnellan. This summons, which was made returnable before a judge in chambers on 19 July 1993, now sought the leave of the court to approve a compromise between the parties, on a basis which essentially accepted a redemption proposal expressed under Mr Skerman's 1989 affidavit in respect of the periodical payment regime for attendant care, which had now been in place for some 16 years. From the face of the 1993 chamber summons it is apparent that leave to compromise was now sought from a judge of the District Court, on terms, that:
1.The Plaintiff have leave to compromise the claim on the basis that the Defendant is wholly discharged from liability to the Plaintiff.
2.The plaintiff have leave to accept in full satisfaction of her claim for the costs of a nursing attendant and the cost of the Worker's Compensation and Employer's Liability policy for such attendants the sum of $240,000 being offered by the Defendant.
3.In satisfaction of the Plaintiff's claim the Defendant do pay to the Public Trustee in and for the State of Western Australia the sum of $240,000 for investment on trust for payment of nursing attendant costs and Worker's Compensation and Employer's Liability policy costs, such investment not to be restricted to the common fund.
4.There be liberty to apply in respect of the investment moneys.
5.On payment by the Defendant of the sum of $240,000 the Defendant shall be discharged from further liability to the Plaintiff in this action.
6.The Defendant do pay the costs of the Plaintiff of this action fixed at $5,000.
The June 1993 application to compromise was initially supported by two affidavits filed on behalf of Ms Donnellan. First, was an affidavit of David Maxwell McKenna, then a partner in the firm of solicitors (Jackson McDonald) acting for the plaintiff. Mr McKenna's affidavit mainly exhibited correspondence, including a medical report by Mr Bryant Stokes FRACS of 21 April 1992 and an independent barrister's opinion of 8 October 1992, relied upon to support a compromise in respect of the redemption of periodic payments for attendant care at the lump sum amount of $240,000. Mr Stokes' report observed:
She does not have sufficient sight to be safe nor independent and in discussion with her carer it seems obvious that she does require the continued assessment by a companion.
[T]hirdly, I consider Ms Donnellan does require a constant companion to assist in her daily needs and that assistance will be required for the rest of her life.
The provisions of RSC O 70 r 10 were still applicable in the District Court in 1993. They ordinarily required an independent counsel's opinion supporting a compromise proposal, where the party seeking to compromise suffered under a disability. Here, the written opinion was provided by Mr P W Nichols of counsel. The opinion of 8 October 1992 comprised some seven and a half pages of advice concerning the $240,000 compromise proposal. The opinion concluded:
Conclusion
There is no certainty that the court would consider an increase in the periodical provision and some prospect that the Plaintiff would be benefitted by a lump sum. These considerations suggest to me that the proposition can reasonably be put to the court as one that could be accepted as in the best interests of the Plaintiff.
Counsel's opinion does not appear to have been updated between when it was provided (8 October 1992) and the filing and determination of the plaintiff's chamber summons of 29 June 1993.
Mr McKenna's affidavit attached a consent to accept the proposed settlement amount by the Public Trustee, by the then, Mr Kenneth Eric Bradley. Mr Bradley also swore an affidavit of 29 June 1993 in support of the compromise proposal. At par 8 of this affidavit, Mr Bradley deposed:
I have read the opinion dated 8 October 1992 of Mr P Nichols of Counsel exhibited to the affidavit of David Maxwell McKenna. The facts on which Counsel's opinion is based are correct and complete as far as can be ascertained by me.
Mr Bradley concluded at par 9:
I have discussed the matter with the Plaintiff's solicitors and I consent to the proposed settlement subject to it being approved by a Judge of the District Court.
The plaintiff's 1993 chamber summons came on for hearing on 19 July 1993 before Kennedy DCJ (as her Honour then was) in the District Court. There is no transcript as to what occurred. However, it appears from what will follow that her Honour was not satisfied about the adequacy of the $240,000 redemption amount compromise proposal, notwithstanding the two supporting affidavits (by Mr McKenna and Mr Bradley), independent counsel's opinion, and the consents to the proposal by both the defendant (represented by the insurer's solicitors Batros & Sierakowski) and the plaintiff (represented by the Public Trustee). Her Honour adjourned the matter over, until 6 August 1993.
In the meantime, a further affidavit was sworn by Mr Bradley, as Public Trustee, on 5 August 1993. In his second affidavit Mr Bradley now deposed:
2.I was subsequently informed that when the matter came on before Her Honour Judge Kennedy she expressed concern that the offer being put forward for approval would not be sufficient to pay a carer's wage for the life expectancy of the plaintiff. I further understand that the matter was adjourned so that I could give further consideration to the proposal and in particular how care would be provided to Ms Donnellan when the available funds were exhausted.
The second affidavit of Mr Bradley is attachment H to Mr Tjhung's affidavit of 12 June 2007 in these proceedings. The full terms of Mr Bradley's second affidavit are important. At various places he refers to personal discussions with Mr Keith Donnellan (the plaintiff's husband since 1984) concerning Ms Donnellan's attendant care needs. At par 3 Mr Bradley mentions that Ms Donnellan was at that time receiving assistance from a carer for 37.5 hours per week, at a cost of $370.74 gross per week. He continued:
I am also informed by him that he is currently unemployed, although he is seeking work despite his own disabilities, namely blindness and an injury to his shoulder.
(That paragraph is relevant to an assertion that is now made by the plaintiff in the RESOC that Kennedy DCJ was not advised of Mr Donnellan's blindness and therefore of his unsuitability as an attendant carer for his wife.)
Mr Bradley then deposed that he had discussed with Mr Donnellan a proposal to reduce the number of hours of carer assistance for Ms Donnellan down to 30 hours per week, in order to avoid an obligation to pay superannuation to the carer (par 4). At par 6 Mr Bradley observed:
Having regard to the investment potential of a lump sum of $240,000 and based on today's economic outlook I am of the view the fund of $240,000 should be sufficient together with her entitlement to the full invalid blind pension which is not subject to any means test, to pay the costs of a carer for the Plaintiff's life expectancy.
Mr Bradley continued:
7.However, Mr Donnellan has informed me that if it appears the funds have been exhausted at such a rate that the fund will [be] exhausted prior to the plaintiff's life expectancy, he will further reduce the hours of the paid carer and provide that assistance to his wife himself.
8.I am informed by Mr Donnellan and verily believe it is his view that the payment of a lump sum of $240,000 would provide the flexibility necessary to provide his wife with adequate care, and he wishes to put forward the proposed settlement for approval by the Court. I am also of the view, having regard to all of the above, the proposed settlement is in the Plaintiff's benefit. In reaching this decision I have also taken into account the views of the solicitor acting for the Public Trustee, David McKenna, and those of Counsel, Mr Paul Nichols to the effect that there is a risk that a Court may decline to make a lump sum award, and also their views that taking into account a reduction contingencies for vicissitudes of life and reduction in life expectancy, together with the type of care required by the Plaintiff and the costs of obtaining the same, there is a risk that if a Court awarded a lump sum it may be less than the amount …
9.I therefore re‑affirm my desire that the current proposal of a lump sum payment of $240,000 be put forward to this Honourable Court for approval.
On 6 August 1993 the matter returned to her Honour. The application to compromise was pressed (now augmented by Mr Bradley's second affidavit). Kennedy DCJ, at that time, made the orders essentially in terms of the plaintiff's chamber summons of 29 June 1993.
It may be observed that the ultimate orders of Kennedy DCJ on 6 August 1993 granting leave to compromise the periodic payments awarded in 1977, at the redemption amount of $240,000, were not made lightly or merely rubber stamped. Obviously, her Honour's very proper initial concerns expressed in July 1993 as to the adequacy of the amount of $240,000 were only appeased by a second affidavit sworn by the Public Trustee.
At the time Ms Donnellan was 36 years of age.

Counsel's advice of 8 October 1992

In dealing with the materials before her Honour in 1993, I must make some further observations about aspects of counsel's opinion. At page 1 of that opinion, counsel observed 'On the 20th June 1984 the plaintiff married Mr Keith Donnellan who is also blind and almost deaf.' That again is relevant to the RESOC assertion as to Kennedy DCJ not being told of Mr Donnellan's disability.

At page 4, counsel cited an extract from a letter sent by his instructing solicitors to the solicitors for the insurers, of 19 May 1991. The extract referred to both gross and net wages on an annual basis towards an estimate which had been made in respect of future nursing attendant/companion wages. It contained the following extract, which on analysis, reveals the annual calculation to have been reached (roughly) by multiplying the net weekly column amounts by 52 (ie weeks), rather than by using the gross weekly figures :
Estimate future nursing attendant/companion wages

Year	Gross	Tax	Net	Annual
First year	$376.60	$68.80	$308.10	$16,021.20
Second year	$381.20	$70.35	$310.85	$16,164.20

Third year

$385.20

$71.60

$313.60

$16,307.20

Plaintiff's DOB: 06.05.1957 - 34 years
Life expectancy: 44.39 years.

On the fifth page of the opinion, again by reference to what would seem to be information extracted from the letter of his instructing solicitors of 19 March 1991, counsel referred to an amount by reference to a 'gap' between what had been paid out for Ms Donnellan's attendant care and the payments periodically received, in the amount of $40,792.31. This was under a heading 'Estimated past loss of nursing assistant wages'. It was preceded by a column of information ranging across seven financial years, between 1984/85 and 1990/91.
On the fifth page of counsel's opinion it is observed that the redemption offer in the amount of $240,000 had been received from the insurer's solicitors on 28 October 1991. The opinion at page 6 then makes reference to an opinion from Dr Greenacre of 30 November 1984, in reference to Ms Donnellan's total and permanent blindness. The extract from Dr Greenacre's opinion as referred to, also observed, 'Unfortunately her husband is also totally blind and deaf as well.' That also bears upon subsequent assertions in the RESOC as to the non‑disclosure to the court of Mr Donnellan's disabilities. Plainly such disclosure was made.
On page 7 of the advice, counsel gave a 'short legal history' for Western Australia concerning personal injury damages awards by periodic payments under s 16(4) of the Motor Vehicle (Third Party Insurance) Act 1943. He mentioned a WA Full Court decision in Musca v Columbini [1970] WAR 33, observing:
The court held, particularly in the judgment of Wolff CJ that such awards could be reviewed if circumstances changed, and the review could be upwards or downwards. It was not suggested that there would necessarily be an award.
Counsel then observed, at page 7 of his advice:
It is clear that if the Plaintiff accepts the offer she will lose some of her past damages and will lose the ability to recover the consequences of what we have begun to regard as inevitable increases in costs … Accepting the figures cited above, and they appear to be correct, there remains a major gap between the offer and the sum to which the plaintiff might well be entitled.
and:
Why then should she consider such an offer? The answer, in my view, lies in the nature of the relief. In other words, because the statute compels it, it is necessary to consider what the general principles that relate to damages have to say on the matter. The result, it is submitted, is that there is no certainty that the court would be prepared to necessarily award the Plaintiff an increased sum, either to cover her past losses or her possible future losses.

The proceedings

These proceedings were commenced in 2004 by the parents of Ms Donnellan as her next friends and joint plenary guardians and administrators. The proceedings are brought against the Public Trustee as defendant, on the basis of negligence and breach of duty in many alleged respects, including by accepting in 1993 (on Ms Donnellan's behalf) the sum of $240,000 in redemption of the entitlement to periodic allowance payments for attendant care. Amongst many allegations, it is contended that the Public Trustee either knew, or ought reasonably to have known, that the amount of $240,000 was inadequate, 'on any reasonable analysis'. The Public Trustee as defendant, strongly denies liability. But it has joined its former solicitors, Messrs Jackson McDonald as a third party to the action.
In due course, it will be necessary for me to set out various paragraphs from the RESOC in these proceedings. I need first, however, to explain why it has taken so long for that statement of claim to emerge.
The plaintiff's RESOC was only finalised under my orders of 29 April 2010. Prior to that, there had been a long‑running pleading dispute between the plaintiff and the defendant over the proper formulation of a statement of claim which it is (unfortunately) necessary to relate. I must first observe, however, that the challenges raised by these proceedings against the Public Trustee by the plaintiff (through her parents as her new next friends) are said not to raise any challenge about the correctness of the orders of Kennedy DCJ, in approving the compromise proposal submitted for approval by leave, on 6 August 1993. Indeed, paragraph 8C of the RESOC, as will be seen below, expressly pleads that the District Court was correct in making the orders it did on 6 August 1993, albeit on the basis of the materials then put before it. One of those materials was obviously counsel's opinion. But there is also no attack made against counsel's opinion to be found in the RESOC, as currently formulated. One of the challenges raised against the defendant in the RESOC is that the Public Trustee failed to place 'complete and correct' material before independent counsel for the purpose of obtaining counsel's opinion.
Counsel's opinion was plainly obtained for the purpose of facilitating the court's approval to the $240,000 redemption compromise proposal, by reference to RSC O 70 r 10. It is pleaded in the RESOC that counsel gave his opinion that the proposed orders were in the best interests of the plaintiff, 'when he would not have done so, had correct and complete material been used' (see the RESOC par 8A(1)). That is a plea which advances, essentially, an argument of causation. Further, it is also asserted under the RESOC at par 8A(2) that had complete and correct material been placed before independent counsel, that 'counsel would have recommended against a compromise in the terms ultimately approved by the court and the compromise as approved by the court would not have been accepted'. These par 8A causation pleas suggest that counsel must be a likely witness at any trial. Those par 8A causation pleas are to be contrasted against what follows in the RESOC as an alternative causation scenario formulated under pars 8B and 8C - which appears to contend that the District Court itself (and without regard to the opinion of independent counsel) would not have approved the proposed $240,000 redemption amount compromise had 'complete and correct material' been placed before 'the court'. How this assertion would be reliably established at a trial in 2010 in circumstances where plainly Kennedy DCJ could not be called as a witness on causation issues towards what she might have ordered in August 1993 based on hypothetically different materials, presents prima facie as somewhat problematic for the plaintiff, longer term.
By reference to par 8(c) of the RESOC (particulars of loss), $333,600 is now asserted to have been an appropriate redemption amount, rather than $240,000 (a difference of $93,600, measured in 1993), had 'complete and correct material' been put before the District Court (in August 1993). This is said to be based upon a (proper) cost assessment for a nursing assistant (at $400 per week for Ms Donnellan's then asserted correct life expectancy of 45.54 years (assessed in 1993, using 6% discount tables)).
In August 1993, Ms Donnellan was 36 years old. At commencement of these proceedings by a writ on 3 November 2004, Ms Donnellan was 47 1/2 years of age. In mid‑2010 she is now 53 years of age.

The defendant's applications

The first matter which arises is the defendant's application to stay aspects of these proceedings in the court's inherent jurisdiction, on the basis that the proceedings, correctly assessed, are an abuse of process (by constituting a collateral attack against the correctness of orders of Kennedy DCJ, of 6 August 1993). By its amended application (pursuant to order 6 of my orders of 29 April 2010) the defendant attacks pars 5(b), 6, 6A, 7, 8, 8A, 8B, 8C of the RESOC, as well as the particulars of breach (a) to (e) and (g) to (i) and particulars of loss (a) to (e) of par 9 and par 14(a) and (b) of the RESOC.
There are strong elements of déjà vu about this challenge by the defendant, by reference to a previous application heard by Newnes J (as he then was) in 2007, which I will explain.
The second essential matter and basis of challenge is under the defendant's application to strike out essentially the same paragraphs of the RESOC, on the basis of what is asserted to be their infringement against the principle of witness immunity against suit. This basis of challenge is new and is advanced pursuant to the defendant's further chamber summons of 25 May 2010. There was no objection by the plaintiff to this further application by the defendant also being determined. The defendant applies to strike out under O 20 r 19(1)(a) of the Rules of the Supreme Court on the ground that there arises an immunity from suit for witnesses in respect of the claims advanced under the paragraphs of the RESOC as referred to in proposed order 1 - by reason of witness immunity. Therefore it is argued the paragraphs disclose no arguable cause of action against the defendant.
Additionally, the defendant seeks orders in its favour in respect of various reserved interlocutory costs decisions which have accumulated during the course of the progress of this matter.

The reasons for decision of Newnes J in Donellan v The Public Trustee [2007] WASC 213 and interlocutory developments thereafter up to 3 May 2010

In August 2007, Newnes J heard an application by the defendant seeking a permanent stay of these proceedings, on the basis that they constituted an abuse of process, as a collateral attack against the orders of Kennedy DCJ of 6 August 1993. His Honour delivered his reasons on 7 September 2007, see Donnellan v The Public Trustee [2007] WASC 213, concluding that he was not persuaded as to the correctness of that submission, or at least as to the appropriateness of its acceptance, at the interlocutory level.
However, his Honour also expressed concerns about how the plaintiff's pleadings were then framed. His Honour's reasons were drawn expressly by reference to what he was able to rationalise at the time as the real cause of action raised by the plaintiff, on what were, at that time, plainly an unsatisfactory statement of claim and reply. His Honour said at [12], [13] and [14]:
In the action, the plaintiff's principal claim, as I understand it, is that the defendant was negligent in settling the plaintiff's claim for the sum of $240,000, as that sum was inadequate on any reasonable analysis, and that on the application under O 70 r 10 the defendant negligently put inadequate or incorrect material before the court, with the result that the settlement was approved. It was implicit in the plaintiff's case that had the District Court been properly informed it would not have approved the compromise.
The plaintiff alleges, among other things, that the defendant failed to take into account premiums for workers' compensation and employer's liability policies covering the carers providing the plaintiff's care, calculated the wages of carers on an after-tax rather than pre-tax basis, and did not take into account that, as at August 1993, there was already a shortfall in payments for the costs of attendant care of more than $90,000, in respect of which the settlement made provision of only $35,000.
I should say that, as it is currently framed, the statement of claim does not clearly put the claim in that way and the plaintiff's case has had to be gleaned from the statement of claim, the reply (which is itself unsatisfactory), and the statements of the plaintiff's counsel on the hearing of this application. But I understood from counsel for the plaintiff that that was in fact the substance of the claim, and it was apparent that the defendant's counsel understood it in that way.
His Honour returned to the inadequacy of the statement of claim at [68] of his reasons, where he observed:
I have previously mentioned that the statement of claim does not clearly frame the claim in the way in which I understand the plaintiff in fact seeks to advance it. While it was apparent that both counsel understood what case the plaintiff seeks to make, it is evident that the statement of claim requires some amendment to put it into proper order. That should be done promptly. I would not be inclined finally to dispose of this application while the statement of claim remains in its present unsatisfactory state. For the moment, I would stand over the present application pending the filing of the final form of the statement of claim.
His Honour was not then satisfied, in September 2007, that the plaintiff's claim, as he had gleaned it, as a matter of principle, was an abuse of process. After delivering the reasons for decision, his Honour stood the matter over for the statement of claim to be 'promptly' put in order.
Regrettably, the anticipation of promptitude expressed at [68] of his Honour's reasons, for the statement of claim to be put in order, was not realised.
A minute of proposed re‑amended statement of claim dated 14 September 2007 was filed, but there were immediate objections expressed against it by the State Solicitor's Office for the defendant.
On 14 November 2007, there was a special appointment convened before Templeman J, at which time, by consent, leave was granted to the plaintiff to amend in terms of another minute of statement of claim of 13 November 2007. Templeman J also ordered the dismissal of the defendant's application heard by Newnes J for the permanent stay.
However, those orders of Templeman J were themselves later set aside by the Court of Appeal on 5 June 2008 (Steytler P, McLure & Pullin JJA). From the appeal transcript (attached to the affidavit of Ms Gretta Rowe Lee sworn 27 April 2010 on behalf of the plaintiff) a major concern that had emerged was that the minute of re‑amended statement of claim of 13 November 2007 (to which the parties had consented before Templeman J) had now formulated the plaintiff's case on a basis different to that which had been gleaned by Newnes J in his September 2007 reasons. In the end, it would appear that the Court of Appeal's setting aside orders were made by consent. The Court of Appeal on 5 June 2008 also set aside earlier orders of Newnes J made on 19 September 2007.
By the time of the appeal it would also appear that the distinct issue of witness immunity potentially being infringed (not raised before Newnes J) had fallen into focus (see the observations of McLure JA at page 10 of the transcript, page 100 of Ms Lee's affidavit).
Consequently, Newnes J's September 2007 reasons were not ultimately carried into effect by any orders made upon them. Moreover, the plaintiff's statement of claim continued to evolve after September 2007.
After the Court of Appeal's (consent) orders of 5 June 2008, a further minute of proposed amendments to the statement of claim was published on behalf of the plaintiff, on 29 July 2008 (see attachment GRL 14, pages 108 ‑ 111 of Ms Lee's affidavit) (but not filed). More concerns were expressed about the proposed amendments by the State Solicitor. A revised minute of amendments to the statement of claim issued, on 4 September 2008 (but was not filed). On 2 December 2008, a further amended statement of claim GRL 22 (pages 131 ‑ 145 of Ms Lee's affidavit), emerged, which was also filed on 2 December 2008.
At another special appointment convened before Newnes J on 15 January 2009, more concerns on behalf of the defendant were expressed about the plaintiff's most recent minute. A transcript of the arguments before Newnes J is at attachment GRL 25 to Ms Lee's affidavit. It is apparent from the transcript that there was merit assessed in a number of the defendant's objections expressed against that minute. Accordingly, Newnes J again adjourned the matter over to 29 January 2009. One day before that appointment (which ultimately was adjourned), there emerged a further series of proposed amendments to the statement of claim (but which were not filed); see Ms Lee's affidavit, pages 169 ‑ 183. The pleading impasse still could not be resolved.
A further minute of amendments on 25 February 2009, seen under attachment GRL 29 to the Lee affidavit (pages 192 ‑ 206) was filed. Again, however, the parties could not agree upon its content. On 25 February 2009 the court was asked to set the matter down for determination at another special appointment. Written submissions were filed by the defendant and plaintiff during April and May 2009. On 11 May 2009 the matter came on for hearing before Newnes J; see transcript at attachment GRL 34 to the Lee affidavit.
Again it would appear that there was assessed to be substance in the objections raised against this minute (see pages 259 ‑ 280 of Ms Lee's affidavit) by the defendant. The matter was adjourned again, so that the deficiencies which had emerged in the course to argument could be addressed by the plaintiff.
On 19 May 2009, the plaintiff sent the defendant some further proposed amendments to the statement of claim (which was not filed) (see attachment GRL 35 to the Lee affidavit). Again these proposed amendments were problematic. A further minute was sent to the defendant (see attachment GRL 40 to the Lee affidavit, pages 288 ‑ 304) on 1 October 2009. On 20 October 2009, the State Solicitor's Office wrote to the plaintiff's solicitors expressing more concerns about this minute. Another minute dated 25 November 2009 was issued on behalf of the plaintiff (GRL 42) in December 2009 (but not filed). The State Solicitor's Office expressed continued concerns about the minute, particularly a new par 8A, in its letter of 10 December 2009. On 2 February 2010, the plaintiff's solicitors again asked for the matter to be referred to another special appointment.
On 29 April 2010, the matter first came before me. During argument over the minute of statement of claim of 25 November 2009, at the appointment, some further alterations to that minute of re‑amended statement of claim were assessed as required. The required amendments were settled during the argument at that appointment. I then granted the plaintiff leave to amend its statement of claim in terms of the minute of 25 November 2009, subject to some adjustments by way of new par 6A, a new par 8A(2), an amendment to par 8B and an amendment to par 8C(b)(i).
Finally, the plaintiff filed the marked up RESOC which is dated 3 May 2010, in accordance with order 1 of my orders of 29 April 2010 granting leave to amend.
In the light of the many changes and evolutions in the plaintiff's statement of claim from September 2007 towards 2010, the defendant expressed the wish to advance again arguments seeking a permanent stay based upon alleged collateral attack and abuse of process, now, of course, in the altered context of the finalised RESOC. Bearing in mind a tortured history in the matter since Newnes J published his reasons of 7 September 2007, I viewed it as appropriate to allow that application to be heard (under par 6 of my orders), on the basis that the defendant would file a minute of amended chamber summons in respect of its original permanent stay application of 9 May 2007 made to Newnes J and would seek leave to pursue the further argument for a permanent stay before me based on the RESOC. (In the end, the plaintiff did not challenge the defendant's application for leave to advance further arguments seeking the permanent stay, in the context of the RESOC of 3 May 2010).

That completes a recounting of what is, on any view, a wholly unedifying history of interlocutory pleading disputation in this matter.

The RESOC

To appreciate the defendant's challenge of abuse of process based on asserted collateral attack, or the alleged infringement against the principles of witness immunity, it is necessary to set out a number of the key paragraphs from the RESOC - so that the arguments may be assessed in context. In that respect, I set out the following paragraphs from the RESOC:
1.The Plaintiff was born on 6 May 1957 and is a represented person within the meaning of the Guardianship & Administration Act 1990.
2.The Defendant is a body corporate established pursuant to the Public Trustee Act 1941 ('The Act'), which by virtue of a certificate dated 15 April 1977 has had the care and management of the Plaintiff’s estate pursuant to section 36C of the Act.
3.The Defendant was appointed the Plaintiff’s ‘next friend’ in District Court proceedings No 87 of 1977, which proceedings claimed damages for injuries sustained by the Plaintiff in a motor vehicle accident on 25 December 1973.
4.The Defendant as the next friend of the Plaintiff, consented to orders made by the District Court of Western Australia on 2 August 1977, the terms of which included inter alia, judgment for the Plaintiff for -
(a)$75,000.00 (‘the lump sum’)
…
5.The Defendant at all material times as manager of the Plaintiff’s estate, and/or as the Plaintiff’s next friend, and/or as trustee of the lump sum, owed a duty of care to the Plaintiff to inter alia,
(a)Properly manage the Plaintiff’s estate.
(b)Take all reasonable steps to have the ~~periodic~~ attendant care payments varied so as to correspond with the actual cost of attendant care.
6.From in or about 1984, the ~~periodic~~ attendant care payments were not sufficient to cover the actual cost of the Plaintiff’s attendant care and yet the Defendant did not have the periodic payment varied but drew the shortfall out of the lump sum causing it to be dissipated.
…
7.In or about August 1993, the Defendant as the next friend of the Plaintiff, ~~consented to~~ proposed under RSC O70 r10 orders to be made by the District Court or Western Australia, the terms of which included inter alia, the settlement of any past claim and redemption of any future claim for the Plaintiff’s costs of attendant care for the sum of $240,000.00, that sum to be invested on trust by the Defendant for payment of nursing attendant costs and workers’ compensation and employer’s liability policy costs.
8.The amount of $240,000.00 was inadequate on any reasonable analysis.
PARTICULARS OF INADEQUACY
(a)Between 2 August 1977 to 30 June 1984, the actual cost of the Plaintiff’s attendant care was $50,119.06, whereas the amounts received under the unvaried 1977 court order were $49,666.95, leaving a shortfall of $452.11.
(b)Between 1 July 1984 and ~~30 June~~ 26 August 1993, the actual cost of the Plaintiff’s attendant care was ~~$179,849.84~~, ~~$190,787.32~~ 191,083.27 whereas the amounts received under the unvaried 1977 court order were $92,732.93, leaving a shortfall of ~~$92,791.44 $98,054.39~~ $98,350.34 calculated as follows:

Year to 30 June $	Payment for Wages $	Payments for workers compo insurance $	Total Costs $	Reimburse-ments MVIT/SGIC $	Payments Unrecouped $
1985	15922.21	224.86	16147.07	9758.07	6389.00
1986	~~20670.59~~ 20,133.65	251.18	~~20921.77~~ 20,384.83	14224.86	~~6696.91~~ 6159.97
1987	~~18471.60~~ 18740.07	556.20	~~19027.8~~ 19296.27	11000.00	~~8027.80~~ 8296.27
1988	27247.37	569.23	27816.6	11000.00	16816.60
1989	~~19487.18~~ 20,050.69	0	~~19487.18~~ 20050.69	11000.00	~~8487.18~~ 9050.69
1990	20798.98	1507.92	22306.90	11000.00	11306.90
1991	20830.53	805.64	21636.17	11000.00	10636.17
1992	18964.31	936.80	19901.11	11000.00	8901.11
1993	16835.70	822.70	17658.40	2750.00	14908.40
1/7/93 to 26/8/93	5885.22	0	5885.22	0	5885.22
Totals:	~~185112.79~~ 185408.74	5674.53	~~190,787.32~~ 191,083.27	92,732.93	~~98,054.39~~ 98,350.34

(c)Using the 6% discount tables and a 1993 assessment of the cost of a ~~qualified~~ nursing assistant of $400.00 per week for a life expectancy of 48 45.54 years, an appropriate ~~redemption~~ capitalised amount would have been ~~$336,400.00~~ $333,600.
~~(e)~~ (d) Using the 6% discount tables and the 1993/94 premium actually paid by the Defendant in the sum of $838.25, the capitalised cost of the carer’s worker’s compensation and employer’s indemnity policy for a life expectancy of 48 45.54 years, would have been ~~$13,557.00~~ $13,013.
8A(1) The Defendant failed to place complete and correct material before independent counsel for the purposes of counsel preparing an opinion on the proposed orders, with the consequence that counsel gave an opinion that the proposed orders were in the best interests of the Plaintiff when he would not have done so had correct and complete material been used.
PARTICULARS
The Defendant, its servants or agents:
(a)failed to update the shortfall in actual costs of the Plaintiff’s attendant care from March 1991 to October 1992,
(b)failed to use gross wages and to include insurance premiums for the future calculations.

8A(2) If the Defendant had placed complete and correct material before independent counsel as set out in paragraph 8A(1), counsel would have recommended against a compromise in the terms ultimately approved by the court and the compromise as approved by the court would not have been accepted.
8B.Further or alternatively, the Defendant, its servants or agents failed to place complete and correct material before the District Court in that it:
(a)failed to update the shortfall in actual costs of the Plaintiff’s attendant care from March 1991 to August 1993.
(b)failed to use gross wages and to include insurance premiums for the future calculations.
(c)presented to the court documents using a life expectancy of 44.39 years, when tables available in 1993 showed 45.54 years for a 36 year old, or 47.48 years for a 34 year old.
(d)failed to disclose in Mr Bradley’s affidavit dated 5 August 1993, that the Defendant had no confidence that it would be able to continue to provide the same level of care to the Plaintiff as was then being provided to her for the remainder of her lifetime with a lump sum fund of $240,000.
(e)submitted to the court that paid care could be reduced by the Plaintiff’s then husband providing assistance himself without disclosing the fact, as evidenced by reports of Dr Greenacre dated 30 November 1984 and 15 March 1989 and Mr Stokes dated 24 January 1985, that the Plaintiff needed a sighted attendant and her then husband was not suitable, because he was blind.
(f)allowed sundry clerical and mathematical errors (listed in the list served herewith) to persist in the schedules reproduced in Mr Nichols’ opinion, rather than including correct figures (as set out in paragraph 8 above)
(g)relied on Mr Bradley’s affidavit sworn 29 June 1993, in which he deposed that the facts on which counsel’s opinion were based were 'correct and complete', and relied on the affidavit of Mr McKenna sworn 29 June 1993 to the same effect.

8C.On the basis of the material placed before the court by the Defendant including counsel’s opinion, the District Court made the orders proposed on 6 August 1993 and was correct to do so. If complete and correct material had been used, the court would not have made those orders. Instead, the court would have either:
(a)adjourned the compromise application, suggesting further conferral which would have led to an approved compromise in a sum not less than the amounts set out in paragraph 8 or;
(b)dismissed the compromise application:
(i)allowing the application issued 31 January 1989 by the Plaintiff in the District Court proceedings to be properly prosecuted, in which event, orders would have been made yielding not less than the amounts set out in paragraph 8; and/or
(ii)allowing the Defendant in the District Court proceedings to prosecute its own redemption application, the result of which would have been a yield to the Plaintiff of not less than the amounts set out in paragraph 8.

9.The Plaintiff has suffered loss as a result of the Defendant’s breach of duty and breach of trust.

PARTICULARS OF BREACH
The Defendant:
(a)Failed to recognize that the ~~periodic~~ attendant care payments were insufficient to cover the actual cost of the Plaintiff’s attendant care.
(b)Further or alternatively, failed to ~~apply to the District Court of Western Australia~~, ~~prosecute~~ have by means of the District Court application issued 31 January 1989 or otherwise, the claim to increase the periodic attendant care payments varied from 1984 with the result that underpayments from 1984 to 1993 were never corrected.
(c)Further or alternatively, recognized that the ~~periodic~~ attendant care payments were not sufficient to cover the actual cost of the Plaintiff’s attendant care, and drew the shortfall out of the Plaintiff’s trust fund, causing it to be dissipated.
(d)Accepted the sum of $240,000.00 in redemption of the carer’s allowance costs of attendant care when it knew, or ought reasonably to have known that the sum was inadequate on any reasonable analysis.
(e)Failed to recoup from the State Government Insurance Commission (as it then was) (‘SGIC’), ~~the costs of~~ attendant care payments which the SGIC had ceased to pay to the Defendant from in or about September 1992 to July 1993.
(f)Received the sum of $240,000.00 from the SGIC on 19 August 1993, but failed to deposit the sum of $240,000.00 into the Plaintiff’s trust account until in or about March 1994, thereby causing loss of investment income for approximately 8 months.
(g)failed to place before independent counsel complete and adequate material as pleaded in paragraph 8A.
(h)caused or allowed Mr Bradley in his affidavits referred to, to state that the facts on which counsel’s opinion was based were correct and complete and that the Plaintiff’s then husband was capable of giving required nursing care.
(i)failed to place before the District Court complete and adequate material as pleaded in paragraph 8B.

PARTICULARS OF LOSS
(a)$452.11 particularized in paragraph 8(a).
(b)~~$92,791.44~~ ~~$98,054.39~~ 98,350.34 particularized in paragraph 8(b).
(c)~~$336,400.00~~ $333,600 less $240,000.00 = ~~$96,400~~ $93,600, particularized in paragraph 8(c).
(d)The losses pleaded in paragraph 8(d) ~~and 8(e).~~ namely ~~$13,557~~ $13,013.
(e)$10,000.00 due to the failure to recoup the quarterly costs of attendant care from SGIC to in or about September 1992 to in or about July 1993, as particularized in paragraph 9(e) above.
(f)$9,600.00 being interest on $240,000.00 from August 1993 until in or about March 1994 at 6% per annum, pleaded in the paragraph 9(f) above.
…

Arguments

Collateral attack against the District Court's orders of 6 August 1993

There is no dispute about the court's inherent power to grant a permanent stay of proceedings in circumstances where an abuse of process may (but not necessarily will) arise, by reason of a collateral attack against a court's order. Newnes J's reasons of 7 September 2007, at between paragraphs [27] to [55], provide a comprehensive analysis and explanation of the leading cases applicable to the scenario of collateral attack and abuse of process. I respectfully incorporate and adopt that analysis in full, but without verbatim repetition in these reasons.
The defendant's written submissions rely particularly on the decision of the High Court of Australia in D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, the leading case in the area of advocates' immunity in Australia. But the decision is of broader application. The defendant contends that the fundamental and underlying policy principle recognised in D'Orta in the finality of litigation under Australian law (the position being different, of course, in the United Kingdom after the decision of the House of Lords in Arthur J S Hall & Co (A firm) v Simons [2002] 1 AC 615) is infringed here, by what is, on analysis, a collateral attack against the orders of Kennedy DCJ of 6 August 1993. It is submitted by the defendant that a 1993 dispute, over the adequacy of $240,000 as a lump sum redemption of the plaintiff's 1977 rights to receive periodic adjusted payments for an attendant carer under the original 1977 orders of the District Court, was finally resolved under the consent orders made by Kennedy DCJ, of August 1993. The RESOC cannot, it is submitted, be permitted to reopen that dispute by what is a sideways (negligence) attack advanced against the defendant.
However, the plaintiff responds that the redemption compromise approval orders of Kennedy DCJ of 6 August 1993 are wholly distinct from the scenario of a court making final orders, such as when determining a dispute between parties which has been argued out before it. The court's function in granting its approval to the proposed redemption under RSC O 70 was different to the resolution of an inter partes dispute. The District Court in 1993 did not render any findings of fact, or resolve a controversy. It did not provide reasons for decision. Its role, essentially, was that of a 'gatekeeper', by reference to its assessment of the limited materials presented to it - which included the opinion of an independent counsel, to support the approval that was required from the court. Essentially then, the situation with a RSC O 70 r 10 approval order by a court is submitted by the plaintiff to be more akin to that of a negotiated compromise of a civil dispute - for which the court's approval is needed, under the court's parens patriae function whilst overseeing the protection of a person blighted by disability. That protective role of the court is explained in various cases including by the Full Court of Western Australia in Sosa v Carter [1978] WAR 123 at 124 (Burt CJ, Wallace and Brinsden JJ agreeing); Fowler v Gray [1982] Qd R 334 (a decision of Master Lee QC as he then was); C v FAI General Insurance Co Ltd (Unreported, QSC, 16 June 1998) (Lee J), and the observations of EM Heenan J in Cadwallender v The Public Trustee [2003] WASC 72 [28], referring in turn to observations of McLure J (as her Honour then was) in T'Hart v Director General of the Department of Community Development [2002] WASC 245.
In resisting the abuse by collateral attack application, the plaintiff also submits that the RESOC plainly does not impugn the 1993 approved decision and orders of Kennedy DCJ. Indeed, the RESOC at par 8C expressly contends that Kennedy DCJ's approval of the compromise and the orders she made granting leave to compromise in August 1993 were correct, upon the materials before the court. It is also apparent that no attack is made in the RESOC against independent counsel, or his opinion. Rather, par 8A(2) of the RESOC advances causation arguments predicated upon an assertion that if correct and complete material been placed before independent counsel, that his 8 October 1982 opinion, used towards seeking the acceptance of the $240,000 redemption proposal concerning future periodic payments for Ms Donnellan's attendant care, would not have been forthcoming, and then, that the $240,000 redemption amount would not have been approved by Kennedy DCJ (this is presumably in the absence of independent counsel's opinion, which supported a redemption compromise at that amount).
The plaintiff does not question at all the theoretical power of a court to grant a permanent stay against a collateral attack, even in a context of consent orders made approving a compromise proposal (as to which see Newnes J's reasons at [37] containing an extract in that context from the reasons of the Court of Appeal in Arthur J S Hall & Co v Simons at 644, [40] and [53]). But the plaintiff nevertheless contends that Kennedy DCJ's August 1993 approval of this compromise is not amenable to such a challenge, on the basis that there is, in effect, no collateral attack that would infringe the principles against abuse of process.
The plaintiff also points to somewhat analogous circumstances where there is a negligence attack against parties' legal advisers over, for example, the inadequacy of a settlement - where issues of potential advocates' immunity may arise. In that context the cases have recognised it as difficult to reach a reliable view, in the absence of all relevant facts being found at a trial, as to whether or not the immunity will apply; see in that respect, Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 at [42] ‑ [44] (Giles JA); Alpine Holdings Pty v Feinar [2008] WASCA 85 [84] (Steytler P and Newnes AJA). That line of case, it is argued, supports the present issue being resolved a trial, rather than in the interlocutory context.

Evaluation: abuse by collateral attack

In my assessment, the blunt and unqualified assertion seen in par 8 of the RESOC (and in particulars to par 9(d)), that 'the amount of $240,000 was inadequate on any reasonable analysis', must infringe against the principles against abuse by impermissible collateral attack. This conclusion is particularly apparent once assessed, as it must be, against the uncontroversial knowledge that when the plaintiff's chamber summons was first called on for hearing before Kennedy DCJ in July 1993, that her Honour was not then amenable to granting the court's approval to the proposed redemption compromise advocated before her, at $240,000. The matter then had to be adjourned for a month, so that further consideration could be given to the proposal. It was only after a second affidavit was sworn and filed from the Public Trustee, Mr Bradley (to which I have referred), that her Honour, at the continued behest of all parties, approved the compromise.
In my view, the sweeping character of the blanket assertion in par 8 of the RESOC that $240,000 was inadequate 'on any reasonable analysis', is offensive to the principles against collateral attack, in the circumstances of this present case. Its allowance, so formulated, would, in my view, bring the administration of justice into disrepute. Kennedy DCJ conducted, on any view, a reasonable analysis. So much is in effect admitted. She ultimately approved the compromise in August 1993, and it is submitted (and pleaded in par 8C) that she was 'correct to do so'. Kennedy DCJ obviously did conduct a proper and thorough analysis of the compromise proposal that was more than reasonable. The nakedness of par 8 is simply incompatible with what follows. The par 8C plea of correctness is irreconcilable with the breadth of challenge against the $240,000 amount as expressed under par 8 on the basis of it being inadequate, 'on any reasonable basis'.
On that basis, paragraph 8 cannot be allowed to stand. Nor can par 9(d) of the particulars of breach, which is in like terms.
Having said that, it seems to me that the particulars of alleged inadequacy found under pars 8(a), 8(b), 8(c) and 8(d), are capable of standing alone - as relevant pleas of material fact, in their own right, were they to be renumbered as substituted pars 8.1 to 8.4 respectively.
A more constrained and principled case (as formulated under par 8A(1) and 8A(2) by the plaintiff) does not manifest the same difficulties - in asserting only an alleged failure of the defendant to place complete and correct material before independent counsel. That alleged inadequacy in respect of the presentation to independent counsel of incomplete and incorrect material can, I think, be assessed as limited to the particulars found at par 8(A)(1)(a) and (b), thereby raising an asserted failure to update the shortfall in actual costs of the plaintiff's attendant care from March 1991 to October 1992; and a failure to use gross wages and to include insurance premiums for the future calculations.

It will, in my view, be a question of fact necessary to be resolved at a trial as to whether or not, as a matter of substance, those matters raised under particulars in pars 8A(1)(a) and (b) in a causative evaluation, can be assessed as having been likely to have led to a different opinion being expressed by independent counsel, having regard to the terms of his 8 October 1992 advice towards the proposed $240,000 redemption amount. That causation issue raises matters that may only properly and safely be assessed in the context of a trial. As a matter of pure principle, such a limited challenge, based on allegedly incomplete information being provided to independent counsel, I think, does not infringe against collateral attack principles or, at least, is not capable at the interlocutory level of being safely evaluated as infringing against the principles against collateral attack. The assessment as to the correctness of that causative proposition of fact, in an evidentiary sense, can only properly be made at a trial. Presumably in this context, it is sought then to have the court infer that absent a supportive opinion from independent counsel, that Kennedy DCJ's orders of August 1993 would not have eventuated.
I turn to par 8B, which is expressed to be 'further and alternatively' to par 8A, in the RESOC, by reference to seven subparticulars. The par 8B plea appears to circumvent the causative input of independent counsel, to contend directly that incomplete and incorrect materials were put before the District Court. Paragraph 8B(a) and (b) mirror the two specific alleged deficiencies under what is contended for as regards counsel, in par 8A(1). They seem to add nothing to a case already advanced under par 8A.
Paragraphs 8B(d), (e) and (g) also raise questions associated with the potential infringement against principle of witness immunity, which I deal with next. For reasons I explain, those paragraphs (and counterparts found elsewhere in the RESOC) cannot be allowed to stand.
Paragraph 8B(c) of the RESOC raises an issue over a discrepancy in a life expectancy figure of 44.39 years used, against Ms Donellan's correct age of 36 years (in August 1993). The contention appears to be that life expectancy tables published in 1993 calculated a higher life expectancy for a 36‑year‑old person - of 45.54 years, a difference of some 1.15 years. This issue raises a question of fact in terms of what impact (if any) such a discrepancy, once realised, might or might not have carried, had it been positively drawn to the District Court's attention. (This does not appear to be an omission in terms of incomplete or incorrect material said to have been put to independent counsel, who refers on page 4 of his opinion, to a life expectancy of 44.39 years).
But fundamentally, pars 8D and 8C of the RESOC advance an alternative causation approach to that formulated under par 8A - with par 8A expressly tied to the alleged consequence of placing incomplete or incorrect materials before independent counsel. The alternative 8B and 8C case appears to contend that had complete and correct material (in the factual respects as particularised) been placed before the District Court, that Kennedy DCJ of her own initiative, would have either adjourned the compromise application (par 8C(a)) or dismissed the application (par 8C(b)). That plea seems to contend that the judge herself would, as a matter of causative consequence, either have either adjourned or dismissed - on the par 8B and 8C pleaded hypothesis of distinct (correct and complete) materials. How this result could ever be fairly or reliably established at a trial run in 2010, as against the defendant, in the absence of the judge as a witness on the issue of causation, presents as a problematic issue of proof for the plaintiff at a trial.
Whilst I do not discount a theoretical prospect that there may be cases where it could be inferred on the balance of probabilities that materials, not disclosed to a judicial officer, are materials which of themselves are of such overwhelming moment that it would present as unthinkable that their import would have been overlooked by a court, had they been disclosed, the matters that are sought to be raised under pars 8B and 8C are plainly not of that character or magnitude. Whilst an inference may be open as to what a court may have done in the face of what is shown to be an egregious error in materials before a court, the grievances articulated under pars 8B(a), (b), (c), (e) and (f), only go respectively to issues of detail or computation over:
·a shortfall in actual costs of attendant care to August 1993;
·failure to use gross wages and include insurance premiums in future calculations;
·the use of an erroneous life expectancy (under) valuation to the extent of 1.15 years;
·the unsuitability of Mr Donnellan to provide attendant care assistance to his wife, because he was blind; and
·not correcting some sundry errors (seen in the attached list to the RESOC) in schedules reproduced in independent counsel's opinion.
These issues do not present as matters of obvious or overwhelming moment, on their face. Their hypothesised detection and correction is not then to be inferred as having led Kennedy DCJ to have adopted any different course than that she followed in August 1993.
My concerns as to the establishment of the causative ramifications of these matters go well beyond any mere issue over their proof by the plaintiff over 17 years after August 1993 at a trial. In the absence of Kennedy DCJ as a witness at that trial, it seems to me that it must, on analysis, present as manifestly unreliable and therefore unfair to the defendant to be embarking ex post facto upon what could only be base speculation as to the causative impacts of such matters (17 years after the event), absent the judge as a witness. The revisionary exercise back to 1993 that is proposed is so obviously unreliable, imperfect and manifestly unfair to the defendant as, in my view, to be likely to bring the administration of justice into disrepute as an impermissible collateral attack.
In the circumstances, I must accede to the defendant's application to stay pars 8, 8B and 8C of the RESOC (and any counterparts) on the basis indicated. I will hear the parties as to the extent to which this impacts against pars 9 or 14 of the RESOC.

Witness immunity

I turn to the defendant's further challenge based upon the issue of witness immunity. As to this issue, there is once again no disagreement between the parties as to the appropriate legal principles to be applied.
The law in respect of witness immunity is clear, see the recent observations of the New South Wales Court of Appeal in Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 269, 272, 278, 279 ‑ 280, 288 ‑ 294 [11] ‑ [12], [43], [47] ‑ [49], [93], [100] ‑ [120] (Beasley A, Mason P and Young CJ agreeing) . Likewise, I would mention for their assistance the observations of Newnes J in Mickelberg v The State of Western Australia [2007] WASC 140 [163] ‑ [182]. At [164], Newnes J cited the following well‑known passage from the reasons of Starke J in Cabassi v Vila (1940) 64 CLR 130 at 140 ‑ 141, in these terms:
"No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.
…
The law protects witnesses and others, not for their benefit, but for a higher interest, namely the advancement of public justice. … The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court."
The significant issue between the parties arising here, is whether this principle is infringed in all the circumstances by reference to the same paragraphs of the RESOC (as are attacked under the defendant's chamber summons of 25 May 2010).
In my view the challenges under this head which are advanced by the defendant against pars 8B(d), (e) and (g) must obviously be sustained. The formulation of those paragraphs may, clearly enough, be seen as a challenge against the deponents of the affidavits, filed in support of the redemption compromise application in 1993. That is particularly so, in respect of Mr Bradley's second affidavit of 5 August 1993, which was sworn and filed, in order to appease initial concerns which Kennedy DCJ had expressed when that application was first brought on before her, in July 1993.
To advance under par 8B(d) an attack over what it is alleged Mr Bradley 'failed to disclose' in his affidavit of 5 August 1993, in terms of it being asserted that there was no confidence then in the defendant about providing the same levels of care for the plaintiff as were then being provided, is clearly a foreshadowed likely transgression against the immunity of Mr Bradley for his affidavit and vicariously against the defendant, in consequence.
So also is par 8B(e)'s attack against what was Mr Bradley's proposition in his affidavit that Ms Donnellan's husband might be able to provide some attendant care in lieu of a sighted attendant, on a basis that there was a non‑disclosure to the court of Mr Donnellan's inappropriateness as a carer by reason of his blindness. [That attack proposition would appear to be factually incorrect, in any event, based on what is seen in counsel's opinion in the extracts, to which I have referred.]
Likewise, the attack against what is said in Mr Bradley's first affidavit of 29 June 1996 and in McKenna's affidavit, under par 8B(g), also directly infringe against the witness immunity principle.
Paragraphs 8B(d), (e) and (g) must therefore all be struck out, in any event as untenable, on the basis that they cannot legitimately sustain a cause of action against the defendant, grounded thereon.
However, I am not sufficiently persuaded at this point, that the remaining attacks based on the witness immunity principle concerning pars 5(b), 6, 6A, 7, and 8.1 to 8.4 8A and 8C, so obviously infringe the principle. The challenges to these residual paragraphs under the witness immunity principle involve factual and causation assertions over what was not put, or was said to be wrongly put to Kennedy DCJ, and what impacts (if any), all that may have had. At this interlocutory level I do not yet detect anything beyond than what may be described as a general (in)competence challenge arising against the defendant, by those residual averments in the RESOC. On their face, they do not appear to rise to the level of constituting an attack against the evidence given by any of the defendant's witnesses.
I do not detect any attack against Mr Bradley or against any other witness under the residual paragraphs, beyond the obvious transgressions in the three subparagraphs. Paragraphs 8B(d), (e) and (g), to which I have referred. That of course is a present observation reached only by reference to the context of the RESOC. My interlocutory view as expressed will not, of course, pre‑empt any subsequent proper objection being taken at a trial, if it transpires that a line of questioning of a witness may be perceived as traversing against principles of witness immunity. In that regard, I broadly accept the force of the submission by senior counsel for the plaintiff, that a viable assessment of the witness immunity principle in operation (in respect of the residual allegations) can only safely be made within the holistic context of the trial.
However, for reasons earlier expressed in the context of collateral attack argument, the entirety of pars 8, 8B and 8C of the RESOC must be stayed, in any event.

Residual costs issues

The defendant's stay application seeks costs orders in respect of costs reserved by Newnes J on 15 January 2009, 11 May 2009 and by me on 29 April 2010. In my view, the costs reserved by Newnes J all related to successful objections which the defendant took against a series of the plaintiff's minutes, and which were ultimately shown not to be acceptable. The usual rule applicable is that where a party seeks to amend, in order to correct a pleading deficiency, the amending party must pay the costs thrown away as a consequence of the amendment. In my view, the costs incurred in respect of the reserved costs for the appearances before Newnes J on 15 January 2009 and 11 May 2009 were occasioned by inadequacies in the plaintiff's pleadings, which were manifest over a long period. On that basis, the defendant is entitled to its taxed costs on those applications, applying the usual rule. Those costs should then be paid immediately by reason of the most unsatisfactory pleading history of this matter, which I have recounted earlier. In all instances it has been the deficiencies in the plaintiff's minutes which have inhibited this matter from proceeding in an acceptable way towards trial.
In respect of the costs reserved at the special appointment before me on 29 April 2010, the same considerations apply, by reference to the defendant's success in establishing that even then, there were still residual pleading difficulties, in the plaintiff's minute of 25 November 2009, before further adjustments that emerged during the hearing of that application. Again, I will make an order that those reserved costs be awarded to the defendants to be taxed, then paid immediately to the defendant.

Conclusions

Accordingly, pars 8, 8B and 8C (and any counterparts such as par 9(d)), infringe against the principles against impermissible collateral attacks and so, should be stayed. On the basis of their assessed transgression against principles of witness immunity, I would also strike out, in any event, pars 8B(d), (e) and (g) and their counterparts in the RESOC, in any event.
I will hear the parties as to the final orders as a result of these reasons.