Giannarelli & Ors v Wraith & Ors; Shulkes v Wraith

[1988] HCATrans 5

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M63 of 1987

B e t w e e n -

EMILIO GIANNARELLI, MARIO
GIANNARELLI and GIOVANNI

GIANNARELLI

Appellants

and

DARYL G. WRAITH, CHARLES FRANCIS

and JOHN JOSEPH HEDIGAN

Respondents

Office of the Registry

Melbourne No M59 of 1987

B e t w e e n -

BERNARD SHULKES

Appellant

and

DARYL G. WRAITH, CHARLES FRANCIS

and JOHN JOSEPH HEDIGAN

Respondents

MASON CJ

WILSON J

Giannarelli(2)

BRENNAN J

DEANE J

DAWSON J TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 1988, AT 10.22 AM

(Continued from 10/2/88)

Copyright in the High Court of Australia

ClTl/1/RB 119 11/2/88

MASON CJ: 

Yes, Mr Heerey.

our outline dealing with the law relating to
solicitors'liability for negligence in advocacy in

MR HEEREY: 

If the court pleases, we had reached point 10 in

1891. Included in the authorities that we have
provided to the Court - it came late by way of
this photocopy - is a chapter from a work,The

Divided Legal Profession by a Mr Forbes, published in 1979. It is a somewhat lengthy chapter dealing with the history of separation and fusion in

Victoria, and Your Honours may be relieved to hear

that I do not intend to read any of it, but we do

put it forward as worthy of reference because it

shows in considerable detail the struggle that

was waged over the years on this topic.

It is fair to say that the work itself is,

to put it mildly, polemic. The author's central

thesis is that the divided legal profession has been

about as useful to this country as the introduction

of the rabbit and it is nevertheless well

researched and impresses one with the enormous

amount of energy that extended for over 20 years

with legislation time after time introduced in the

lower House, passing, but being rejected in the

upper House, committees of inquiry, endless debate,

and it is a wonder that the Victorian Parliament

had time to deal with much else and having read

that history one cannot forebear the thought that

if the respondents are right and that Parliament
in 1891 truly intended to enact a law after all that
struggle which would give barristers a new right
to sue for their fees and impose liability for
negligence, but not for negligence for most of the

things barristers did, it was a remarkable coup

that the barristers had achieved and comparable,

one would think, to the famous LIVERPOOL CORPORATION

ACT where Your Honours will recall that in the middle

of 800 turgid sections about local government law

there was secreted the provision that the

town clerk's marriage is hereby dissolved. (Continued on page 121)

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Giannarelli(2)

MR HEEREY (cotninuing):  I would refer at this stage also to

the extrinsic materials that we have filed. My

learned friend, Mr Charles, has told me that he

would obje_ct to reference being made to them, so I

will just briefly explain the way we put the relevance

of our materials. Again, I do not propose to read

from them, but they constitute extracts from

contemporary journals, Table Talk, which was the

equivalent of the Bulletin kind ·1f a news magazine

and The Age. The way I put it is this: this

legislation is concerned expressly with what the
perception of the law was in 1891, and the case for

the respondents is that in 1891 solicitors appearing

as advocates had an immunity at common law and that

that was recognized, that it formed part of the

express intention of Parliament.

Now, we would simply say, well, if that was so,

if Parliament had in its mind in 1891 that solicitors

were immune from liability from advocacy, at the

very least barristers must have been aware of that. If that

is so, it seems 0dd that contemporaneously the legislation

was met with fierce opposition from barristers and

there was contracting-out agreements reached and

it does, we simply say, tend to show that the

perception of the law was exactly the opposite, that,

had it been recognized that solicitor advocates were immune, obviously the legislation would have had the

effect that barristers had the same immunity and

the legislation would have been welcomed by the bar.

BRENNAN J:	You say they were contracting out - - -
MR HEEREY:	There is some reference to retainers which

barristers adopted very shortly after the passage

which exempted them from liability for negligence.

It was not a very successful ploy, apparently.

BRENNAN J:	A temporary phenomenon, was it?
MR HEEREY:	Yes, it did not seem to be - - -

BRENNAN J:	It has not impaired the cab-rank principle?
MR HEEREY:	No.  It formed part of the reaction of barristers

to the legislation which included the barristers'

boycott and the split of barristers between

boycotters and ..... and so forth.

(Continued on page 122)

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MR HEEREY (continuing):  We turn to point 11 of our outline.

The Full Court examined the 19th century cases looking for authority on what was called in-court

negligence , at page 199 of the appeal book.

That criterion was applied very strictly and literally, and we refer to pages 200 and 203,

and especially 204. However, it is important

to look at a procedural twist that this case
took in the Full Court which is relevant to

this inquiry. This is discussed at pages 186
to 189 of the appeal book but, in essence, it

arose in this way: when the appeal commenced

in the Full Court the pleadings were constituted

by an amended statement of claim which commences

at page 1 of the appeal book; it contained

many allegations of negligence against the barristers,

a number of which were concerned with out of

court conduct - and I can just give the Court

two examples. One is at page 18 of the appeal

book, paragraph 35 of the amended statement
of claim, and that alleges that the first defendant,

our client, retained the third and fourth defendants,

that is Mr Francis and Mr Milte, to advise the

plaintiffs in conference in relation to the

charges and the presentments and, similarly,

at page 20, paragraph 38, it is alleged that

the first defendant retained the fourth defendant,
that is Mr Francis, I think, to settle documents

relating to an application for quashing the

presentment.

After the appeal had been under way for

a little while the Full Court said this: these

allegations of out of court negligence are really

not appropriate to be dealt with on a preliminary

point of law because they raise questions of

mixed fact and law.

(Continued on page 123)

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MR HEEREY (continuing):  One could not decide in abstract

about advising in conference unless you knew what

the instructions and what was said and those questions

of fact. The Full Court said, "Therefore, we do not

propose to hear the appeal and we will simply set aside

the primary judge's order without saying it is

right or wrong and let the matter go to trial."

That met with concerted resistance from the bar

table. What eventuated was this. The Full Court

said, "Well, we are prepared to deal with the case.

If the plaintiff's allegations are restricted to

strictly in-court negligence so that there can

be no question of any factual dispute." That was

agreed to and that led to the later statement of
claim in which the plaintiffs alleged, be it noted
against the barrister appellants only, that is,
not against all the barrister defendants but only
against those barristers that had appealed, that

is, Francis, Milte and Hedigan - Wraith, Francis

and Hedigan.

It alleged against those barristers simply

in-court negligence and there was a defence delivered

denying it and taking the demurrer point. Now,

against that background the Full Court then embarked

on a search for authority for in-court negligence.

The problem with that, we respectfully suggest, is

that it was a course that was unlikely to be

successful because they were really looking for
in-court or out-of-court negligence as a determinative

criteria of liability for solicitor advocates.

Now, it could have been said at the outset that

it is probably unlikely that that would be fruitful

because the inununity of barristers had never been

confined to in-court or out-of-court work. So

when the Full Court examined the 19th century

authorities, true it is that some might be out-of-court,

some, arguably, might have been in-court and so

forth, but in none of them is there the slightest
suggestion that the test of literally in-court
or literally out-of-court was determinative of liability. So the result of the Full Court's

reasoning is that in 1891 solicitors were at

conunon law inunune from liability for in-court

negligence but not otherwise. They treat all the

19th century cases as being correctly decided and

many of them cover work that would, on any view,

be within the modern intimate connection test

propounded in SAIF ALI. Now, if the 1891 Act

imposed - and its successors imposed on barristers

the same liability as solicitors, barristers'

inununity in Victoria is only in respect of in-court

negligence stricto sensu and, therefore, it

would follow that they are liable in respect of

out-of-court negligence whether or not it is intimately

connected with conduct of the case in court.

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MR HEEREY (continuing):  So, one has the odd result that

the position of barristers in Victoria would be

quite unique. It would not accord with the

common law position before SAIF ALI which was

immunity for all work, whether in court or out

of court, and it would not accord with the

distinction drawn in SAIF ALI itself.

Now, paragraph 12 of our outline says something

about the contractual nexus theory which was

developed in the judgment. We say that the second

limb of section 5 of the 1891 Act was not
introduced merely to provide a contractual nexus

on the basis of some assumption that there could

be no liability in negligence without a contract.

It says·''liable for negligence .. , .. to the same

extent as a solicitor is now liable to his client"

and there is contemporary evidence that at the

time a solicitor was regarded as being liable for

negligence, both in contract and in tort, and we

refer to the passages in the editions of Beven

set out in the outline and also a reference in

MACPHERSON AND KELLEY's case at the page given.

So we suggest, in any event, that legislators

are not usually over concerned with juristic theory

and the debates do not contain any hint that they

were in this case. There was reference to the

MELBOURNE PARKING STATION case, both that and there

is an earlier case which is referred to in it,

that is PEARCE V TOWER MANUFACTURING CO,

(1899) 24 VLR 757, and those cases are simply

concerned with the substantial attendance provision

which is now section 12. And the argument had

been advanced in that case that if a barrister

had a brief delivered and the case was settled

after delivery of brief, and therefore it was not

necessary for him to go to court, he therefore

was not entitled to his fee because he had not

given substantial attendance and fortunately such

an argument was immediately rejected and the only

point of those cases is that they hold that the

form of practice existed and that a barrister was

entitled to his fee if the action was settled after

the brief was delivered.

But, in any case, we respectually submit there

is no need for the complication of the contractual

nexus theory because after the passing of the

legislation there would be no reason why barristers

could not enter into contracts and, indeed,
section 12(3) of the 1958 Act, it is at page_ 31

of the materials, it corresponds with section -

I think it is section 8 of the 1891 Act, the

present section 12(3) provides:

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MR HEEREY (continuing):

No contract or agreement between a barrister

and solicitor and any other person shall

have any force or effect in so far as such

contract or agreement is contrary to the

provisions of this section.

Now that is a familiar type of legislative prohibition

against contracting out and it necessarily assumes

that there would be a contract. It is just that there

is a provision against a particular kind of

provision in the contract. We might make reference

also to a quite recent provision, it is section 67

of the SUPREME COURT ACT 1986. It is quite a

lengthy section but what it does in effect is to
provide for the taxing of barristers'fees by the
taxing master, subject to this limitation that
if there is an express agreement for the barrister's

fees in a particular form, the section does not

apply and section 67(1) provides:

In this section "fees agreement'' means

an agreement relating to fees chargeable

by a barrister to a solicitor or the

client for -

certain sorts of work:

which specifies the amount, or a rate or
method for calculating the amount, of

those fees.

And subsection (2) provides that:

A fees agreement may be made or varied in

writing and may be enforced or set aside

in the same manner and on the same grounds

as any other contract.

And there is elaborate provisions about taxing and

subsection (14) provides that the taxing provisions

do not apply to fees charged in accordance with a fees agreement. And again we would say that that

is simply a recognition of the fact that

barristers can contract in the ordinary way. And

indeed when a barrister is briefed in the ordinary

way that transaction has all the ordinary indicia

of contract.

(Continued on page 126)

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MR HEEREY. (continuing): There is offer and acceptance. there

are terms both express and implied, nothing ~ay

be said, for example, about the fee. If it is

a particular standard side of work it may be implicit

that it is the normal fee or a scale fee - cotmty court.

Alternatively, there may be elaborate negotiations

and detailed provisions about it.

MASON CJ: We do not need all this detail, do we?

MR HEEREY:  We just refer to those two authorities,

LEVY V UNION BANK and YEATMAN V DEMPSEY which is

authority for a more general proposition, that is, that if an act is not unlawful or contrary

to public morality one can bind oneself by contract
to perform it, and in paragraph 13 we make the

point that the reference to solicitors' liability

is inconsistent with an intention to preserve any

existing defence because there is no existing

defence for solicitors.

We turn now, in paragraph 14, to the public policy aspects and the starting point is that what

was said in RONDEL and SAIF ALI is, in its terms,

expressly restricted to the structure of the legal

profession in the United Kingdom. So, one does

not need to pray in aid the independence which

has been established by authorities such as

COOK V COOK because English authority, in its own

terms is confined to the United Kingdom and there

is equally eminent authorit½ which the Full Court

did not deal with, which makes it clear that arguments

do not necessarily apply to other common law

jurisdictions. There are the passages in RONDEL

itself which we refer to and DOUTRE's case which,

we would suggest, is of considerable significance.

Can I just say a little more about the facts

of DOUTRE's case. Doutre was a legal practitioner

in Quebec which, of course, have a civil law and

it was clear that under the law of Quebec a lawyer

could sue for his fees, whether it was for advocacy

or otherwise. He was retained by the Canadian Federal Government to appear for it in a Royal

commission dealing with fishing in Nova Scotia.

(Continued on page 127)

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MR HEEREY (continuing):  There was a dispute and Doutre

sued or, rather, proceeded by petition of right

for his fees.	The argument of the government
was this:	they said that under the law of Ontario,

which had the common law, a barrister cannot

sue for his fees and, likewise, under the law of Nova Scotia a barrister cannot sue for his

fees and this contract is governed either by

the law of Ontario or the law of Nova Scotia. The Privy Council held, and this is the ratio of the case, that the contract was governed

by the law of Quebec and, therefore, it did

not matter what the law of Ontario or Nova Scotia

s a i d . But , they went on to say, a dm i t t e d 1 y in

a dicta but in a quite considered one, because

it had been strongly argued that KENNEDY V BROUN

should have been followed, and they indicated

that despite the lofty statements in KENNEDY

V BROUN, a substantial proportion of which were

expressed in Latin, that by no means necessarily

applied to a common law jurisdiction where there

was a fused profession. So, on that basis it

would not have mattered even if the retainer

had been governed by the law of Ontario and

Nova Scotia.

So, one leaves that case with the intriguing

thought:  what would have been the position

if it had been the government suing Doutre for

negligence and they might have held equally

that the English authorities had no provision-

application and we rely again, of course, on

what was said in DEMARCO V UNGARO.

In paragraph 15 of our submissions we point

out that we rely on what was said in WILKINSON

V OSBORNE about the caution with which public policy should be used.

Paragraph 16 of our outline deals with the relitigation of issues point which was really

relied upon as the most important of the public
policy arguments by the Full Court.	The Full

Court's judgment, in our submission, deals interchangeably with this concept in two quite

different senses.

(Continued on page 128)

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MR HEEREY (continuing):  Firstly, the sense where a second

court decides the same issue as the first court
did. For example, take a libel action where the

plaintiff is a convicted murderer and he sues on a publication alleging that he is a murderer and

the defendant pleads justification. Both courts

try the same issue, that is, did the plaintiff

commit the murder. We would refer to

GOODY V ODHAMS PRESS (1967) 1 QB 333, at page 339. The second sense in which the Full Court

seemed to deal with this is where the second court

decides whether the first court would have decided

a case differently had participants, barristers,

solicitors or witnesses, involved in the first

trial, acted differently. Now, dealing with the

first concept, we say that is not only well established

in the law but positively mandated by the

restriction of the res judicata and issue estoppel

rules, by the rule in HOLLINGTON V HEWTHORN which

positively prohibits the second court, even having

regard to the resolution of the issue by the first

court, and there is a particularly striking example

of the lengths to which the common law goes in the

case of - it is a decision of the Full Court of

South Australia - it is the STAR CANDY STORE PTY

LIMITED V CHANIOTIS (1968) SAR 1.

The Star Candy Store Company, as its name

suggests, was the proprietor of a small business

and it engaged Chaniotis as an agent to sell the

business and Chaniotis procured some purchasers,

some people called Breen, and the Breens signed a

contract for the purchase of the business, went

into possession, but then attempted to get out of

the contract and their claim was based on an

allegation that the contract did not comply with
the certain formalities required by the South

Australian legislation.

So there was an action, which is also reported,

of BREEN V THE STAR CANDY STORE and in that action

the Star Candy Store denied that the formalities

were not complied with but said that in any event

the Breens had affirmed the contract.	Now, that
defence failed.	The trial judge held that there had
not been affirmation.	So then we have the present

case where the· Star Candy Store sued the agent,

Chaniotis, for negligence as an agent and Chaniotis

argued that the formalities were complied with, but

he raised the affirmation point again and his case was, well, in any event it would not have mattered

because the purchasers, that the Breens affirmed the

contract.

Now, in the second case the judge held that the

formalities were not complied with, but held that the

Breens, the purchasers, had affirmed the contract so

that the loss that the plaintiff suffered did not

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flow from the negligence of the agent and at pages 20

to 22 of the judgment Chief Justice Bray deals with

the problems that this created, and all members of
the court indicated that it was an unfortunate result
but there did not seem to be any doubt at all that
the law required that conclusion to be drawn,
because Chaniotis was not a party to the early action

he was not bound by the finding that there had been

an affirmation of the contract.

In the same vein we would refer to an authority

PARKER V LEWIS,(1873) LR 8 Ch App 1035, at pages1059

to 1060. That is authority for the proposition that

there is a general rule that where A has a right of

indemnity against Band it is not a contractual

right of indemnity, and A seeks indemnity in respect

of a judgment against him by C, that Bis not bound

by that judgment.

(Continued on page 130)

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DEANE J:	But there is an added problem here though, is not
there, in that it is not only a retrying of the
issues, it can be a retrying of the triaTI I mean,
take the ordinary case where counsel's addresses are not recorded and presume that there is a dispute of facts about whether or not counsel
raised the point, now do the judge and the jury all
get called as witnesses about what counsel said?
No doubt there are other instances such as
misconduct proceedings against a legal practitioner
where that problem would arise, but it is a
relevant problem?
MR HEEREY:	Your Honour, we would say that, as we will show in

a moment, there seems to be a quite independent

prohibition against the calling of a juror, and one

would think a judge,to give evidence about what

happened. But in any event it is no more than an

evidentiary problem which is cormnon to all
negligence actions. In any sort of negligence, or
any case for that matter, there may be difficulties

of proof, and one does not say that - - -

DEANE J:	But you are moving_ into an area which positively
invites them if negligence in the actual conduct of a
trial is to be made the subject-matter of
subsequent legal proceedings?

MR HEEREY:  Yes. Can I say, Your Honour, as we have said, this

is quite a separate sense of the concept of

relitigation which we want to develop in a moment.

We say there are two, and I will come to it in a

moment, but the authorities to which we will refer,

we say,seems to suggest that if that problem arose

it would be just a practical problem that would

be dealt with subject to particular restraints,

one of which we would concede is some independent

rule against calling judges or jurors. So, if we

can leave what we refer to in 16(a) as our first

concept of relitigation, we say it is very well

established in	law and indeed it is based on
fairness that a party should not be bound by a

finding in a case that he was not a party and he

did not have a chance to challenge.

Now, the second concept, that is the one referred

to in 16(b) of our outline, we say is well recognized

in the law and there are at least four separate

categories. Firstly, it is accepted in actions

against solicitors for negligence and we refer to

HATCH V LEWIS and COOK V SWINFEN. Now, we place

particular reliance on HATCH V LEWIS because

the report, and we will not read from it in extension,

but it was a report of the jury trial before

Chief Baron Pollock.

MASON CJ: What is the reference to it, Mr Heerey?

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MR HEEREY:  I am sorry, Your Honour, it is (1861) 2 F & F 467, 175 ER 1145.

MASON CJ: Thank you.

MR HEEREY:  And the plaintiff as has been mentioned had been

charged with indecency offences involving young girls and the essence of his complaint against the solicitor who had briefed distinguished counsel,

Sergeant Ballantine, was that he did not put before
Sergeant Ballantine proofs of witnesses who could

have been called and would have resulted in a

different result.

(Continued on page 132)

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MR HEEREY (continuing): And that is summarized at page 1148

of the English Reports, there is a paragraph

commencing "The case for the plaintiff now was"

and that summarizes it in the way that I have said.

At the bottom of that page it is indicated that
the counsel for the plaintiff proposed to call

the jurors and Chief Baron Pollock, who heard the

trial, consulted the other judges and ruled that

the jurymen could not be called. There had been

a pardon, I think, and he wanted to call the Home

Secretary and that was refused - so that was dealt

with in the ordinary way in the course of the trial.

We then go to the summing up and if we go

to page 1151 - perhaps before doing that, one might

note at the top of page 1150 that:

Ballantine, Serjt., proposed to state

the impression he had formed at the conclusion

of the trial, and the grounds on which it

rested; but

Chambers objected to his doing so (a)

The evidence of the original trial was

read at length from the notes.

Then going to page 1151, at the bottom, and this

is from the charge to the jury, the last paragraph,
Chief Baron Pollock told the jury:

You will have to consider, in substance,

whether all was done which could have been

done for any useful purpose, and whether the

not doing of anything which might have been

done was the cause of the plaintiff's

conviction.

Then, over the page, page 1152, the second-last

paragraph, having reviewed the evidence, and it

might be said that there are some echoes of a later

case of FERGUSSON, that Chief Baron Pollock pointed
out the practical difficulties that stood in the

path of the plaintiff in securing the acquittal

anyway, and he said in the second-last paragraph:

That is for you to consider. The great

question is, whether the plaintiff's

conviction was owing to the want of care and

skill in the defendants, or was the result

rather of his own conduct in placing himself

in such a position.

And finally, referring to the hopelessness of -

at the top of page 1153, referring to the hopefulness

of the defence or the usefulness of calling witnesses

and the fact that the plaintiff had absconded which,

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of course, was a major item of evidence against

him:

That was a fatal step, and it had been

taken some time before the defendants were

retained in the case.

Even should you find for the plaintiff,

these things must all be considered with

reference to the question of damages, for

you must take into consideration how far the

plaintiff himself contributed to the injury,

if any, which he may have sustained, and how

far his own conduct caused the mischief which

is ascribed to the defendants' negligence.

The declaration alleges, that by reason of their negligence he was convicted. The

plaintiff is not bound to prove that, in order
to maintain his action. If the defendants'
negligence largely contributed to the result,
they would be answerable for such damages

as you might think just under all the

circumstances. But if you think that either

it would not have been wise to call witnesses,

and that, under all the circumstances as they

then appeared, it would have been useless

or perilous to do so, then find for the

defendants.

(Continued on page 134)

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1:1R HEEREY (continuing):	So really	appears to be directing

them in terms of the loss of a chance. So that,

we say, is of significance because it shows in

the practical context of a jury trial how the

common law dealt with this situation. It plainly

dealt with what happened at the first trial and

whether if the conduct complained of against the

present defendant would have made any difference.

We refer to COOK V SWINFEN in 1967. I think that

is the same case that Dr Pannam gave the All England

Reports to. We cannot tell the Court whether

SWINFEN was a descendant of the famous prudence

Swinfen or not. But that was a case where the

plaintiff had been served with a divorce petition

by her husband and the solicitor was

in not filing an answer and cross-petition so

that the matter went through as an undefended petition.

The approach of the trial judge and the Court

of Appeal was to say, "Well, the cross-petition
that the wife wanted to file on the grounds
of the husband's adultery did not have much prospect

of success anyway', and it was quite probable that

in any event the husband would have got his decree

on desertion. At the most she might have got, also,

a decree on her cross-petition. This appears at

page 460 of the report, at the bottom, just after

line G:

The probabilities were that the husband would

still have got a divorce on he ground of

desertion. That may be true. But there was

quite a chance that both might have got decrees -

the husband on desertion, wife on adultery.

There is an outside possibility of the wife

herself getting a decree. She is entitled

to general damages for the loss of the chance

of a more favourable outcome.

That was assessed at 200 pounds.	The purists might
express horror at that as dealing with the prospects

of litigation in the language of the race track.

But it is an entirely realistic ,approach and it

involves, again, looking at what happened in the

first case and asking what would have been the

difference. The second category of this concept

is a very well recognized category of actions against

witnesses for failure to attend, pursuant to subpoena,

or agreement.

MASON CJ:  Before you come to that Mr Heerey, there is one

thing I do not understand about the HATCH case

at the moment and that is this: what was the basis

on which the jurors' evidence was not acceptable?

It does not seem to me to go to the length that

ClT13/l/MB	134	11/2/88
Giannarelli(2)

you were suggesting in response to Justice Deane's question. HATCH does not suggest that the jurors, or for that matter, a judge, could not be called

to give evidence as to what actually transpired

in court.

MR HEEREY:  Yes. I accept Your Honour's point and it

raises - - -

MASON CJ:  And the point about the non-reception of the

jurors' evidence may be but the giving of the

evidence sought would have resulted in a disclosure

to some extent of the process of reasoning at the

actual trial itself.

MR HEEREY:  Yes. Perhaps one just does not know whether,

I suppose, that principle would be applied when

it is simply a question of proof of a simple factual

matter as to what happened or what did not happen.

It may be - - -

MASON CJ:  I cannot see why that would not be admissible.

MR HEEREY:  Yes. Maybe my concession was too hasty,

on reflection.

(Continued on page 136)

ClT13/2/MB	135	11/2/88
Giannarelli(2)

MR HEEREY (continuing):  And a judge walks outside the court

and sees a motor car accident he is obviously a - - -

MASON CJ:  We may be confronted with the spectacle of judges

being called as expert witnesses.

MR HEEREY:  Yes.

BRENNAN J: Is there not a body of authority on the question

of judges' competence in matters that transpire

in trials before them?

MR HEEREY:  I am not aware of that, Your Honour. Yes, I

am told there are some better informed members

at out end, of the bar table about that, Your Honour,
but I cannot assist Your Honour, at the moment,
about that.

The second category, that of the actions against witnesses - if we can just rush forward to paragraph 27.

In a different context we refer to the witness

cases, they are set out there: CODLING V COXE

MULLETT V HUNT, CREWE V FIELD, YEATMAN V DEMPSEY

and so well established is this concept that if

you want a precedent for an action against a witness

it is set out in Bullen and Leake. And those cases -

some of the witness was subpoenaed, one of them,

YEATMAN V DEMPSEY, it was a matter of agreement

and not subpoena. And all of those and in particular,

CREWE V FIELD, the 1896 case, deal with w~at

difference it would have made in the first trial

had the witness given the evidence.

The third category is that of criminal appeals.

We refer to IRWIN, (1987) 1 WLR 902, at 906 and to

SAREK, (1982) VR 971, at 982-3.

And the fourth category is that of the statutory jurisdiction in Victoria of petitions for mercy

and the recent example in KNOWLES' case, which

has already been referred to, .(1984) VR 751, 769.

And of all those four categories of cases in none
of these is the second court dealing with what

the Full Court, at page 203, said was a case which

was never brought. One might say that about

KITCHEN V ROYAL AIR FORCE ASSOCIATION which was

the only case they referred to. That is the case

where because the limitation period expired there
was no first case but in the negligence action

you had to have the trial within a .. trial. But,

the four categories of cases ~hat we have referred

to are quite different because they plainly dealt,

as HATCH V LEWIS does, with the first case. So,

it is really not the relitigation of the same issue

at all. It is- the second court is dealing with

what might have happened, what might have been

ClT14/l/AC	136	11/2/88
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the decision of the first court if the solicitor,

witness or barrister had done certain things and

the present case is a good example. If this trial
proceeds there will not be in issue as to whether
these plaintiffs had committed perjury. And all

those cases - the two principal categories, that

is in 16(a) and 16(b) of our outline are inconsistent,

we say, with any general proposition that it is

destructive of public confidence in the administration

of justice that one court holds that an earlier

court would have come to a different conclusion

had the participants - - -

BRENNAN J: Mr Heerey, take it if this case proceeds, what

is the issue which the Court would have to find
or a tryer of fact would have to find with respect

to the prospects of acquittal on an argument based

on section 6DD?

MR HEEREY:  One starts with this proposition that what this

Court said about 6DD is correct -

(Continued on page 138)

ClT14/2/AC	137	11/2/88
Giannarelli(2)

BRENNAN J: But that is with the gift of hindsight.

MR HEEREY: It is true, but the point is that it was never

raised. We are not prepared to run the plaintiffu'

case before then because, if that day comes, we will be on the other end of the bar table but what the plaintiffs' would have to show

is that they had a prospect of success because

there was this point which the High Court has

held is right. It might be argued against

them, "Well, the magistrate would have rejected

it, or the trial judge would have rejected it

or the Court of Criminal Appeal would have rejected

it" but - - - '

BRENNAN J:	What evidence is admissible to prove that?
MR HEEREY:	It is not a matter of evidence at all, we

would think,it is just a matter of assessing,

in the same way as the Court assessed in HATCH

V LEWIS or COOK V SWINFEN. What this chance

was worth - the defendants would argue that

this was really such a difficult and subtle

point that there was no hope of getting a magistrate

or a judge to accept it until one reached the

High Court; the plaintiffs would argue, "No,

once you argue it it is really a very simple

point; it only has to be trotted out, as it • II

were, to win acceptance .

BRENNAN J: It is just the question for a common Jury,

though, is it not?

MR HEEREY:  We do not suggest, Your Honour, that every

factual issue that is raised in actions for

negligence against barristers will be easy of

resolution and one can say that about any category

of action. We can pose other hypotheses; there

must be the possibility of cases where one can

point to the most obvious blunder by the barrister,

some critical witness who is not called, no

explanation given and there just could not be

any answer that had he done it the result would

have been different. It is just, in the ultimate,

a question of fact, just like any other.

We might refer in this context to KNOWLES'

case and, particularly, at page 769. There
is a passage in the judgment which we need not

read but the setting of KNOWLES' case was that

on a murder trial the defendant - there was a plea

of defence and provocational self-defence - - -

DEANE J:  Could I just take you back for one manent? Assume

that the trial judge in this case had met one of the defendants in the street and said, "Do not worry about not having taken that point;

I had it in mind, I looked at it very carefully

and there was nothing at all in it". Now, the

ClTlS/1/SDL	11/2/88
Giannarelli(2)	138

problem that you really have to face is this,

is it not, that if, as a matter of public policy

the law precludes the processes of decision
being examined in litigation, there is an element

of unfairness if a defendant is to be liable

for his part in those processes of decision

if he is not allowed in a case where what happened

would protect him from liability in going into

what happened. I have put it badly, but can

you see the problem that is exercising my mind?

(Continued on page 139)

ClTlS/2/SDL	139	11/2/88
Giannarelli(2)

MR HEEREY:  It does seem very close to what actually happened

in HATCH V LEWIS. It may be that, in fact - maybe

they knew by some reason that the jurors would

have been able to give that evidence.

DEANE J:  But in HATCH V LEWIS the negligence was not in the

actual conduct of the proceedings; it was a collateral

negligence which led to something happening with that.

One can understand that the line has to be drawn

somewhere. The problem is where one draws it.

MR HEEREY:  No, with respect, Your Honour, the complaint in

HATCH V LEWIS was there was negligence - the fact that it was.a solicitor's negligence is not material for present

purposes - which resulted in witnesses not being

called. To support that case, it was sought to call

a juror, and the inference is that the juror would

say, "Well, if I had heard this witness, I would have

reached a different result." So, that mignt

be said to be unfair for the plaintiff in the same

way that Your Honour's proposition is unfair for

the defendant. But it cuts both ways.

DEANE J:  I do not think you have quite appreciated the point

I am making. Under modern law of negligence, prima

facie, one would have thought the judge would be liable for

negligence in giving a decision, unless there is

some rule of public policy that protects him. Now

hopefully everybody would accept that there is such a rule,

The question then is where does one draw the line of

immunity? Does one draw it simply at the judge?

Or does one draw it, in terms of the active participation in the proceedings leading to the

court's decision, or does one draw it in the collateral
activities, that is, the solicitor instructing

Sergeant Ballantine as to the availability of evidence, and so on, or somewhere else? Now, that

seems to me to be the problem that you have to face,

and that is the difficulties in drawing it in a way

which protect the judge's processes of reasoning

to the stage of depriving an active participant in

the cause of a defence which otherwise would be

available to him. That may support the RONDEL V WORSLEY

approach.

MR HEEREY:  I am not sure if I appreciate Your Honour's

point. We deal a little later with what we say is ~he

distinction between the barrister, or solicitor, for
that matter, on the one hand, the judge on the other.
In some areas they overlap their absolute privilege
in respect of defamation, of course, but there is this
fundamental distinction that the barrister holds himself

out as having reasonable skill to carry out his task

and the judge does not. The judge is performing a

public duty. So, in terms of imposing liability for

negligence that, we would suggest. is a fundamental

distinction. I am not quite sure whether that meets

Your Honour's point.

ClT16/1/VH	140	11/2/88
Giannarelli(2)

DEANE J:	I think you have dealt with this as well as it can be, probably. While I am interrupting you, my
reading of all the old texts- or, I should have said, all the old texts that I have read, it has struck
me that constant reference back to Chief Justice Tindall's
judgment and his distinction between the mismanagement
of so much of the conduct of a cause as is usually and
ordinarily allotted to the attorney's department of
the profession, which, of course, would not really
support your approach; what I want to ask you is,
in any of these old textbooks does one find a clear statement that a solicitor is liable for negligence
as an advocate?

(Continued on page 142)

ClT16/2/VH	141	11/2/88
Giannarelli(2)

MR HEEREY:  I think I do not have them immediately to hand.

There is one that I have in the back on my mind

that at least comes fairly close to it but - - -

DEANE J:	At some time I would like to have if it you could
give it to me?

MR HEEREY:  Yes, I will do that, Your Honour. I do not want

to repeat myself in answer to what Your Honour said

but we would say there is no practical difference

between what the solicitor was doing or not doing

in HATCH V LEWIS and what a barrister was doing

either in court or out of court, in this sense

that they are both retained to do it and they both

hold themselves out as having a reasonable degree

of care and skill. When one comes to proof, either

against barrister or solicitor that there has

been a breach of that duty, there may be other

public policy rules which impinge on the conduct

of one's action in negligence and they may in

any instance operate unfairly against plaintiff

or against defendant. But we say that that really

is not a sufficient foundation for barring all

actions of negligence including very many which

would not raise this problem at all which may

involve quite clear-cut negligence.

I think I was discussing KNOWLES case. In

KNOWLES there had been a murder trial and a

defence of self-defence and provocation and the

defendant's counsel had available to him a witness

who would say that the deceased had behaved. on

specific occasions, "in a very irrational

and aggressive fashion. But the accused himself

did not know of these instances. And there was

an existing Victorian authority which said that

you could not lead evidence of the general propensity

of a victim unless you could show that they were
instances of which the accused was aware. And
on the basis of that authority the counsel did

not call those witnesses and one might think that

he could not be entirely cititized for that. But

what the Full Court on the petition of mercy, the

statutory petition right, they said this- it is

at page 769 of the report, reading from the top

of the page:

We must consider whether counsel

ought to have sought to lead Swaine's -

that is the potential witness -

evidence and ought to have requested that

inquiries continue as to her propensity -

and I think that means the propensity of the victim -

C1Tl7/l/SR	142	11/2/88
Giannarelli(2)

and to have called such evidence as those

inquiries revealed. If Swaine's evidence

and evidence such as that of Saunders had - I think Saunders was another witness who was not

known of at the trial. Swaine was known of at the

trial, Saunders was not, but might have been

discovered upon search -

been tendered the probability is that

it would have been admitted. It would have been likely to have been admitted

either because the trial Judge regarded

it as legally admissible or through the

operation of the practice usually followed

by trial judges that the benefit of the

doubt, even on a ruling of admissibility

of evidence, is to be given to the accused.

With reference to PATEL.

(Continued on page 143)

ClT17/2/SR	143	11/2/88
Giannarelli(2)

MR HEEREY (continuing):

If the trial judge had excluded the evidence and conviction had resulted the

petitioner would have been able to appeal

against the conviction on that ground. In

our view there is no question but that counsel should have sought to lead the

evidence. As mentioned above, it would have

given the case on the whole of the evidence

a complexion far more favourable to the

defence. It would also have provided

substantial support for the petitioner's

credibility as a witness and this was of the

utmost importance to his defence.

We can see no forensic reason other than

error of law as to its admissibility which

would have led defence counsel to decide not

to call the evidence. If it had been called,
the Crown still had a strong case and could

have secured a conviction. This evidence,

however, would have changed the defence

position from one where as a matter of forensic

reality the prospects of an acquittal were

minimal to one where there was a real prospect

of obtaining an acquittal.

Now, we ask, that Full Court was obviously quite

untroubled in discussing what would have happened

if a particular point had been raised and whether

it would have made the difference or whether it

simplX gave the defendant a chance and we simply

say, 'Well, if that was grappled with, without any apparent trouble, there is no reason why a

similar exercise can't be gone into when the context

is a civil action in negligence."

BRENNAN J:  Was the issue in KNOWLES any difference from

that which a Court of Criminal Appeal ordinarily

encounters when there has been a wrongful rejection

of evidence?

MR HEEREY:  Probably - Your Honour, I do not speak from a

vast and up-to-date acquaintanceship with the criminal

law but in broad terms I would suspect not. The

sections confer a very wide discretion and as we

have mentioned, in the ordinary appellate process,

there are certainly examples of errors by counsel

being relief on as a ground of appeal.

So we go on to say, in point 17 of outline, that if, as we have shown- that there is really

nothing novel about a court examining how another

court would have decided a case, in general terms,

and if the whole rationale of this supposed public

ClT18/l/ND	144	11/2/88
Giannarelli(2)

policy ground is public confidence, that we would

suggest that the opposite conclusion may well be

open, that public confidence in the administration
of justice is more likely to be diminished if,
say, a barrister neglects to call a vital witness
because the barrister is simply ignorant or

incompetent or even drunk and as a result the client

loses when he should have one.

If we are talking in terms of public perception

and public confidence we have to remember that

people in general are very concerned with the

injustice of an immediate case and are reluctant

to see what, on the face of it, is injustice in

a particular case sacrificed on the altar of a

vague and abstract principle.

And the final matter we put about the question

of relitigation of issues is that on the Full

Court's present formulation these problems would

still arise when barristers were sued for negligence

which was not in court or not intimately connected. the court point.

(Continued on page 146)

C1Tl8/2/ND	145	11/2/88
Giannarelli(2)

MR HEEREY (continuing):  We rely on what was said in

SAIF ALI's case by Lord Diplock about that. Can

w~ Just pick up briefly a point that Justice Brennan

raised yesterday as to the possible conflict in

other professions.	We would suggest perhaps
an architect is a good example.	An architect might

be retained to design a building and the client

complains that the design was unnecessarily

expensive and uneconomical and one could well have

the situation where the architect says, "That's

really quite true. If my hands had been free I could

have designed you a building which would have been

far more economical, but I am bound by the building

regulations to include certain features in the

design and my carrying out of my retainer is

confined in that way." In the present case both

duty to court and duty to client require the same

action.

In paragraph 20 of our outline we deal with the prolongation of trials point and, in our submission,

it is clear that excess caution prompted by fear

of client action is a potential problem with all

professions. It is not seen as providing a rational

justification for immunity in any other calling and,

for example, there would be no doubt that in

professions such as medicine a practitioner might

quite honestly, but perhaps unreasonably, order

expensive diagnostic tests to cover himself against

any possible attack and that is a cost, a cost to

the patient, a cost to the community, but nobody

suggests we solve that problem by depriving

negligently injured clients or patients with the

right to sue, and indeed, of course, with barristers,

unlike the doctor who sits there ordering diagnostic

tests to his heart's content, barristers perform in

an environment where the court may intervene with

varying degrees of politeness and ensure that the

action proceeds with greater dispatch. Even in

appellate courts, for example, where it is just as

important to save time and money, the court may

indicate that excess reading from authorities, or

such like, can be dispensed with.

At paragraph 21 of our outline we make this

point, that there cannot be any doubt that lengthy

trials pose a major problem; that they are productive

of expense and therefore injustice for those

concerned; they cause injustice for people waiting to

get their cases on before the lists are jammed; in

criminal cases it causes excessive demands on limited

legal aid funds, it is productive of obvious injustice

there; and much is being done about that problem by
the courts themselves, by the profession, by

government and we see, for example, in Melbourne

and Sydney where there are commercial lists where

judges - - -

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MASON CJ:  Again, we do not need to go into any part of this,

do we, Mr Heerey?

MR HEEREY:  So we just make this point, Your Honour, that

there are better ways of dealing with this problem

than a blanket innnunity which shuts out good

as well as bad cases. At paragraph 22 we deal with

the argument that is inherent in this public policy ground that the apprehension of a barrister fearing a negligence action, we point out that, of course, there is the reality of insurance, there is the

knowledge that he has this advantage over any other

professional sued for negligence that the action
against him is going to be tried or presided over by

a judge familiar with the pressures under which a barrister works and finally, what always seems to

be ignored in this discussion of the problem, that it

is assumed that barristers who take pride in being

courageous and in defence of their client standing

up fearlessly to judges and other dangerous people

will suddenly go to water when an importunate client

says, "I want to call 10 witnesses", or, "I want you

to cross-examine for four days."

(Continued on page 148)

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Giannarelli(2)

MR HEEREY (continuing):  Why is it not assumed that any

barrister worth his or her salt would say, "Well,

my professional judgment is that these ten witnesses

are totally irrelevant or only of the most marginal

relevance and I am simply not going to call

them".

In paragraph 23 we refer to the DEMARCO

V UNGARO case and we would make this point,

that Ontario, if one is searching for examples,

is really very comparable to Victoria. It is

a former English colony which inherited the
common law; it is an English-speaking Westminster

democracy and, if one is looking for a society

which might provide a realistic guide as to
the actual effect of barristers being liable

for advocacy, Ontario is a good example. Indeed,

there is probably the further point that it
adjoins the United States and might be thought

to be subject to the obsession with litigation

that apparently occurs in that country. So

that if, inherently, barristers' liability for

negligent advocacy led to these unfortunate

results, it is very odd that it did not emerge

in the 100 years or so that it was well established
in Ontario that barristers were liable and,

indeed, when the matter came into the limelight

again in RONDEL V WORSLEY, and was focused on,

it is a wonder that the Canadians did not take

steps to bring their law into line with that

of England.

We leave the point with this comment, that

when English judges in RONDEL and SAIF ALI talk

of the ill-effects that will flow from barristers

being liable for negligence they are not talking

from experience, from imperical evidence, because

barristers had not been liable for negligence.

But in Canada it is the other way around: there

has been a liability, so the Canadian experience

Again, there is the feature of this case that is an actual one and not a.speculative one.	performance of a duty in all probability would
have shortened the proceedings and would not
have prolonged it to a significant degree.

Finally, we might make the point, at

paragraph 25, that the formulations of this
policy, where it always seemed to assume that

a barrister is making a decision, weighing up

a triai prolonging the course of action against

a possible liability for negligence, but negligence

may well involve no decision at all. The barrister

might forget something or might never have known

it.

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The cab-rank principle we deal with in

paragraph 26;	we adopt what was said about
that by Lord Diplock in SAIF ALI.	We submit

that there is really no rational connection

with the cab-rank principle. A barrister may

be delighted to accept a brief but yet be, maybe,

negligent in the handling of it. Also, we would

point out that if the respondents are correct,

this public policy doctrine would apply in Victoria

and it would apply to solicitor advocates who

are certainly not bound by any cab-rank principle.

Paragraph 27 deals with the court participants'

immunity there and we submit that, as we set

out in our outline, the immunity is really

directed towards a quite different set of values

and, where appropriate, the immunity of a court

participant can co-exist with a liability for

negligence as is shown in the cases concerning

witnesses.

In paragraph 28 we make the point that

witnesses' immunity clearly extends to fraudulent

acts, such as conspiracy, but the interesting

thing about the formulation of common law barristers'

immunity is that it always excluded fraud as

was indicated in SWINFEN V LORD CHELMSFORD

where, indeed, fraud was expressly raised

and it was only abandoned at quite a late stage

of the trial. The present case, we say, involves

no question of inhibition on counsel's conduct

of the case.

(Continued on page 150)

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MR HEEREY (continuing):  We deal,in paragraph 30,with the

countervailing public policy arguments, the general

policy underlying the law of negligence that a

person suffered loss or damage should have a right

to recover from the wrongdoer, that the law should

not be open to this criticism that it is looking

after its own and in paragraph 32,what we might

call the safety valve argument, that while no

barrister,or anybody else for that matter,would

enjoy being sued for negligence, at least it is

better - not only from some irrational reaction in

terms of physical violence but from some disgruntled
client parading real or imagined wrongs through the

media or in other circumstances to the great

embarrassment of the barrister concerned.

Paragraph 33 makes a point that was referred

to in EGGIN's case there, that there may be more

justice sometimes in action against the legal

adviser than prolonging the original action.

Paragraph 34 is the point that was touched on by

Dr Pannam, that it-:is always assumed in the English cases

that the potential will have an adverse effect

on barristers' performance.	We say the opposite
possibility is at least likely.	We refer there

to an article in the Modern Law Review which develops

the argument that civil liability for negligence is

the more efficient means, in economic terms, of

maintaining professional standards than either

intervention by some governmental bureaucratic

organization or the internal discipline of the

profession itself.

We conclude by this submission, that an

effective remedy for barristers' negligence which

compensates the client for loss would strengthen

the confidence of the conmrunity and the court system
rather than weaken it. In our contention the

public, or any reasonable member of the public,

would not lose confidence in a court system if

the barristers are made liable for negligence of

any sort. If a client retains a barrister, loses

the case because of the incompetence of his

barrister and then recovers from that barrister

the loss that he has suffered, perhaps the loss that

he had to pay by way of a verdict to the other party,

a reasonable observer would say, "Well, it was not

the court's fault that this person lost his case,

it was the fault of the barrister"~ that it is

reasonable to credit a community with a basic

understanding of how our adversary system works

and why would the reasonable person think anything
other than it was the fault of the barrister on
this hypothesis demonstrated to have been negligence

rather than the court. If the object of a court

system is to secure justice and on the assumption

ClT21/l/MB	150	11/2/88
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that this client had a good claim, say, against

an opponent which would have succeeded if competently

handled~ we pose the question, what .. is the more

just of the two situations: that the client who

lost the earlier case recover from his barrister,

or in reality, his barrister's insurer, the amount

of his claim or he recovers nothing? And what

was, on this hypothesis, a just claim is lost without

any fault on behalf of the client or the court and,

of course, the barrister keeps the fee or can even

sue for it.

(Continued on page 152)

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Giannarelli(2)

MR HEEREY (continuing):  So, we would submit that if one

goes into the fairly unfamiliar area of judges

in assessing what the community might or might

think. I say an unfamiliar area because normally

the court would pride itself on doing justice

according to law ..... · ad carnum ..

Now, we would suggest it is a hazardous and

a dangerous exercise to erect on public policy

grounds an immunity which will bar all claims for negligence, the good, the borderline and the bad, to satisfy a perceived public reaction which may,

indeed, be exactly the opposite.	Those are
submissions, if the Court pleases.

Can I just refer to the point that Justice Deane

raised about direct reference in the texts.	The
first is ,White's book at page 175 - this is
The Law of Solicitors -

When acting as advocate for his client, he

is liable for breach of contract.

The authority given for that is FERGUSSON V LEWIS and

CLARK V COUCHMAN. The second is Cordery, the

1888 edition, page 115:

A solicitor acting as advocate (unlike counsel)

is liable to his client if he fail to attend.

DEANE J: If you look at that, the end of that paragraph

says:

In the colonies, where the union of the two
characters of solicitor and advocate is
frequent, the liability of the solicitor in

his character of solicitor is clearly recognised.

MR HEEREY:	Yes.
DEANE J:	Not taking time, but, interestingly, if you -
obviously that would have been the passage one
would have expect to have been looked at this
time.
MR HEEREY:	Yes.

DEANE J: If you look at the first authority cited in support

of that proposition, it is LESLIE V BALL in Ontario,

and in the judgment of Mr Justice Adam Wilson at

page 519 there is a paragraph which would seem

to me to, probably, be the explanation of the section

we are concerned with here. It does not solve

the problem but it uses the words one finds in

the section.

MR HEEREY:  Yes. I·cannot recall whether LESLIE V BALL was

the earlier case referred to in DEMARCO V UNGARO.

There were two cases in the 186Os which expressly

held that - - -

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DEANE J: Well, I am not suggesting you take time with it but it does, for example, talk to liability for

neglect as counsel "in like manner and to the

same extent" as an attorney is. It would be

surprising if the araftsman did not have that

judgment in front of him:

MR HEEREY:  Yes. And, finally, in Halsbury, 1st edition 1914,

volume .XXVI, page 756 - it is about the middle

of the page:

where, on the trial of an action, he -

that is, the solicitor -

he neglects without reasonable excuse to instruct

counsel to appear on his client's behalf (i),

or, if he has the right of audience, where

he fails to attend to conduct the case (k),

or conducts it improperly.

DEANE J:	Except again, I do not want to take time, but if
you go back to 755 you will see that they take up Chief Justice Tindal's distinction between:

mismanagement of so much of the conduct of

an action as is usally allotted to his

department.

(Continued on page 154)

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MR HEEREY:	Yes, well that may be understood in the context of the case where the solicitor retains the
barrister, and one can understand him saying that.
It is not at all inconsistent, we would suggest,
with no barrister being involved and the solicitor
being the advocate as well.

DEANE J: Except it seems to be used in a different sense

in the subsequent textbooks, thoueh what you

say is no doubt right about it?

MR HEEREY:  Yes, but the very least one can say with those

texts is that they fall a long way short of a

clear statement that solicitors had an immunity,

if the Court pleases.

:MASON CJ: Thank you, Mr Heerey. Yes, Mr Charles?

MR CHARLES:  If the Court pleases. Your Honours, before

friends have dealt, can I deal very shortly with the point last made by my friend, Mr Heerey - the suggestion that the law should not be open to the

turning first to section 10 of the LEGAL PROFESSION

criticism that it is looking after its own. And

might I respectfully remind the Court that for

every barrister who is sued in negligence at least

two lawyers are going to benefit from it and

if the lists are opened to actions against advocates

one may well find the jurisdiction lost when

running down seems to be a fashionable part of
the law followed by actions for negligence against

advocates.

Your Honours, in relation to section 10, the

barrister's activities were very well known in

1891 to include both in-court advocacy and matters out of court, such as the preparation of opinions, the settling of pleadings and the settling of

conveyances. I am sure that statement will not

need authority, but the first edition of

Halsbury in Volume 2, paragraph 617, contains a

clear statement of what were regarded as the

usual work of barristers. Now, Your Honours, may

I turn to the question that barristers were not

entitled to charge for their work as barristers.

My friend, Mr Heerey, put it yesterday in relation

to the 1891 legislation that the immunity was

seen to be inextricably linked to the inability

to sue. And the inference was that the immunity

in effect came from the inability to sue.

We would put it that the cart has got very

effectively in front of the horse in that submission.

If one goes back to Sir William Holsworth's work

in Volume 6, it was not on our list of authorities,

C1T23/l/SR	154	11/2/88
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Your Honour,at the time the submission was made

and we have copies now for the Court, if I can hand

them up.

(Continued on page 156)

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MASON CJ:	Yes.
MR CHARLES:	Chapter 8 of volume 6, Your Honours, deals with

the development of the legal profession in the

latter half of the 17th century. The Court will

see at page 440 at ~n~roximately the middle of the

page, that:.

It was laid down in 1629-1630 that a

barrister, unlike an attorney, could not

sue for his fees. This rule made its

first appearance in the court of Chancery;

and it almost certainly originated in

reminiscences of the rules of Roman law as to
legal position of members of the learned

professions in relation to taeir clients.

Your Honours will see that the authority cited for

that is MOOR V ROW 1 Ch which was said to be: In accordance with the current of feeling

in the profession appears from the preface

to Davis's Reports.

Then there is a reference to KENNEDY V BROUN. Now,

Your Honours, in KENNEDY V BROUN itself - if I may

take the Court now to expand the submission - and

the reference I use is the one that my friend,

Dr Pannam,put to the Court yesterday, which is in

13 or 18 CB(NS) Report. The Court will see that

there was detailed reference in the judgment of

Chief Justice Erle which begins at page 727.

His Lordship was punctilious in his judgment in referring to the advocate and the immunity in relation

to advocacy. If one looks at page 727 by way

of first example, there are references on at least

three occasions in that page to the promises made

by Mrs Swinfen to Mr Kennedy for his exertions as

an advocate:

We consider that a promise by a client to

pay money to a counsel for his advocacy - - -

then in the remainder of that passage, near the

bottom of page 727, it is said further that:

The relation of counsel and client renders

the parties mutually incapable of making

any contract of hiring and services concerning

advocacy in litigation.

Now, Your Honours, the reference that was seen in

Holsworth then appears near the top of page 728 where the quote is taken from Sir John Davys's Reports,

who declared that his:

Understanding at the beginning of the seventeenth

century -

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was that:

"the fees of professors of the laws are not

duties certain growing due by contract for

labour or service, but gifts; not merces, but

honorarium."

Now, the whole thrust of the judgment which follows,

to which I do not propose to make detailed reference,

is that what was the foundation of the inability

to sue, and which was seen just as much in Roman

times as in the 16th century and as in the 19th

century, was that it was highly undesirable that an

advocate should be bound by mercenary considerations;

that they would taint the approach of the advocate

and that the advocate's calling was a higher one,

for which reasons one had to get away from the

concept of mercenary.

(Continued on page 158)

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MR CHARLES (continuing):  The judgment demonstrates in detail

the references that Mr Kennedy had drawn on from
the civil law. They are set out in the passages

which appear at page 733 and following. They

demonstrate that his industry had gone back through

Blackstone and Justinian and to Tacitus to persons

well known in Roman law who had demonstrated there

that the advocate was not to be fee'd and not only
that but given that gifts could be accepted by

the advocate that a strict limit had to be placed

on the amount of any such gifts. And the incapacity

is dealt with further at the top of page 737 where

His Lordship said, after dealing with the Roman

law, that:

But it is not merely on such considerations

as these that this law is based. The

incapacity of the advocate in litigation to
make a contract of hiring affects the integrity

and dignity of advocates, and so is in close

relation with the highest of human interests,

viz the administration of justice.

And there are like statements again made,

Your Honours, critically, in terms of the advocate near the bottom of page 738 and twice on page 739 which I refer to the Court.

Now, it was implicit, Your Honours, in each

of these matters that the advocate's liability
and, so called, the immunity of the advocate, was
seen to be based in considerations of public policy
but it was those considerations of public policy

which had given rise to the incapacity to sue.

The barristers' actions and words were to be guided

by a sense of duty owed to the court and to the

public as well as by a very strong sense of

obligation to the client.

The preceding case, Your Honours, SWINFEN

V LORD CHELMSFORD, had equally emphasized that

barristers took upon themselves an office or duty

in the proper discharge of which the court and

the public at large had an interest. Your Honours,

there was no question that, at that stage, solicitors

were liable in negligence and as the texts to which
my friend Mr Heerey referred in answer to

Your Honour Justice Deane demonstrate, it was certainly

asserted in several of those texts that the solicitor

was liable in areas where the solicitor had engaged

in advocacy.

That liability, Your Honours, however, was

believed at that time quite clearly to be

contractual in nature, in our submission, and was

not founded in any negligence apart from contract.

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The authorities, Your Honours, which establish

that view are the following: HOWELL V YOUNG,

(1826) 5 B & C 259 - I do not propose to take

Your Honours to this or the next two cases, I am

simply including the reference to them; secondly,

SMITH V FOX, 6 Hare 386; thirdly, ROBERTSON V

FLEMING, (1861) 4 Macq 167. The clearest

expression of that view, Your Honours, was the

statements which were made in BEAN V WADE which

I do desire to refer briefly to the Court,

(1885) 2 TLR 157.

(Continued on page 160)

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MR CHARLES (continuing):  Now, Your Honours, that was a claim

in negligence against a solicitor involving a failure

to give notice of appointment of new trustees

which had been followed by the loss of trust funds.

The Court will find that the matter is referred

to by Lord Justice Lindley at the bottom of page 158.

I can only say, Your Honours, that the appellants,

judging by their counsel, must have been very well

represented as, of course, they won. But the

Court will see that at the bottom of the right-hand

column Lord Justice Lindley said that:

More than seven years had elapsed between
the date of Cooper's conveyance and the date

of the connnencement of the action against

Mr G. Wade, and, therefore, more than six

years had elapsed between the time when notice

should have been given and the connnencement of

such action. But according to HOWELL V YOUNG,

SMITH V FOX and RE HINDMARSH, the right of

action in cases of this kind was treated as
arising from a breach of contract, and not from

negligence apart from contract or from any
breach of trust. Therefore, the statute began
to run in favour of Mr G. Wade from the date
of his breach of his duty to his clients -
in other words, from the time at which notice

ought to have been given to the trustess of the

will.

Now, Your Honours, in looking at what may have been

in the minds of the legislature in Victoria, we

refer the Court to the case of WARD V LEWIS,

(1896) 22 VLR 410, and again, we have copies for

the Court. Now, Your Honours, the relevance of this

case particularly is that it will be seen that although

decided after the time when the legislation in

question was being considered, it is close enough
in time, we would submit, to give an indication

of what the thinking in the colony may have been

at that time.	The Court will see, by reference to
page 417 and 418-.at the bottom·of page 417

Mr Justice Hood that:

The main fight, however, turned upon the

question whether or not this action is one for
a tort or for a breach of contract. In the
statement of claim it is put practically

as though it was an action of tort; but, under

our present system of pleading, the pleader

does not state his legal position, but
the facts upon which he relies, and the
real question is, what is the substance of

the facts on which the plaintiff sues? It

was said that this action was one of tort -

that it is one of negligence, arising out

of a breach of duty owing by the defendants

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to the plaintiff. But that duty can only

arise by reason of the fact that the plaintiffs

and the defendant had made a contract. A

solicitor does not owe a duty to every passer-by

whom he meets in•the street, but only to the

client who employs him.

(Continued on page 162)

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MR CHARLES (continuing):  Your Honours, the view that

solicitors were liable for any negligence in contract

and not in tort was probably best expressed in

GROOM V CROCKER. I will not take the Court to it,

other than to give the reference. It is reported in

(1939) 1 KB 194, and it is only recently, Your Honours,

we would say, that the view that a solicitor is

liable in contract and not in negligence as a separate

tort has fallen into disarray with the line of cases that began with the decision of Mr Justice Oliver in

1979 in MIDLAND BANK TRUST V HETT, STUBBS AND KEMP,

the line, Your Honours, that follows through

ROSS V CAUNTERS and which I suspect Your Honours

may have had to consider recently in the case

which I think remains reserved for judgment of

HAWKINS V CLAYTON UTZ.

We submit, Your Honours, that when reference

is made in the debates and in the legislation in 1891

to negligence it must be borne in mind that it was not

until the 1930s that negligence became recognised as

a specific tort. That was the view that was taken
by Lord Wright in GRANT V AUSTRALIAN KNITTING MILLS
(1936) AC 85, at page 103, when His Lordship was
speaking of OONOGHUE V STEVENSON (1932) AC 562,

and that that was the position was put very forcibly

by Sir Wilfred Fullagar in the paper that Sir Wilfred

gave at the seventh legal convention in 1952 when

he pointed out that those two cases had established that there was a tort of negligence. The reference

to Sir Wilfred's paper is (1952) 25 ALJ 278, at

pages 286 to 287.

It was the paper, Your Honours, in which

Sir Wilfred argued that CANN V WIUSON, the decision of

Mr Justice Chitty in the 1880s, had been correctly

decided. It was the forerunner of HEDLEY BYRNE V

HELLER and at the same time pointing to the fact that

HEAVEN V PENDER was properly regarded as the ancestor

of 00:r::-tJGHUE V STEVENSON, even though the views that

Lord Esher had expressed there were not agreed with	at the time by his brethren, and His Lordship was	forced to retract somewhat from them in LELIEVRE V
GOULD.

Now, Your Honours, in relation to the cases that

my friends have relied upon as allegedly establishing

that solicitors are liable, or were in the 1890s,

liable for negligence in court, we would say this,

that upon close examination they can all be seen to be

related to out-of-court negligence, that in so far as

they impose liability on solicitors they should not

be taken as suggesting that when the solicitors
engaged in the advocates functions the solicitor would

be liable in negligence.

As my friend, Dr Pannam, put it, the closest one

can get to a statement in a case that solicitors are

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so liable is HART V FRAME, and that case falls short

of establishing the proposition he was seeking to

make good. If I can take Your Honours very briefly

to HART V FRAME - and I do not propose to go to the

other cases - HART V FRAME was reported in

6 CL & F 193. I seek, Your Honours, to make

reference only to one page, and that is 676. Your Honour the Chief Justice pointed to a

passage in that page at point 3 which underlines the

fact that it was a procedural error into which the

appellants had fallen. There was a further short

passage to which we refer the Court at point 6:

(Continued on page 164)

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MR CHARLES (continuing):  Immediately after the passage read

by my learned friend, Dr Pannam, these words

appear - after the passage my friend relied

on as establishing that what was complained

of was negligence in relation to a court.	The
Court proceeded to say:

Besides, as was observed by some of the

Judges below, the cause of action by the

apprentices had already arisen, as they

had been apprehended and were then in

custody.

In other words, Your Honours, this was a case of wrong process, of improper preparation and

does not relate to negligence in court. The

Full Court, in its reasons for judgment, dealt

with these cases at pages 199 to 207 of the

appeal book. Dr Pannam, rather unkindly, referred

to the way in which the Full Court dealt with
those cases as either 1·'cr:abbed11 or "cramped".

We would submit, Your Honours, that the correct

question is whether the Full Court was right

and it is our submission that they were.

The fact, Your Honours, that there is

comparatively little authority dealing with
the potential liability of solicitors for negligent
advocacy, we would submit, is partly to be explained
by the fact that solicitors did not usually

take up the advocate's functions in superior

courts; consequently there would be a dearth

of such litigation and also the matters with

which they were dealing may have involved lesser

sums and consequently be inherently less likely

to make their way into superior courts.

In any event, Your Honours, we submit that

the statements made in the text writers, and

I concede that there are several, that solicitors

were liable for negligence in their functions

as an advocate are wrong and to the extent that
they appear it is the function of courts from
time to time to put textbook writers on the

true path and the opportunity has once again

arisen for this Court, even though the writers

in question are long since dead. In any event,

it was perfectly clear by 1891 that solicitors

were not liable for what they said in court

in the sense of having an absolute privilege,

at least - and we would put it higher and say

"immunity" - from defamation. That was established

clearly in MUNSTER V LAMB, 11 QB 588, and I will

come back to that case in another context later,

Your Honours.

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Turning next, briefly, to the Victorian parliamentary debates, may I state at once what

is our objection to the further extrinsic material

that has been tendered to the Court by my learned

friend, Mr Heerey. A glance at the index will

show Your Honours that my friend is seeking

to rely on extracts from Table Talk at three

places and The Age. The extracts demonstrate

comment being made about the bar, the allegations

that the bar boycott has collapsed and assertions

about why the barristers are hostile to the

passing of this legislation. It is impossible,

we would submit, on any reasonable view to say

that the contents of newspapers, after legislation

has been passed, can be of assistance to the

Court in interpreting legislation.

(Continued on page 166)

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MR CHARLES (continuing):  We would submit that the material,

in so far as it has any bearing at all on what is

before the Court, is not properly proved. It makes
little reference to lawyers by name, in the sense

of giving their corrrrnents in quotations. We would

submit that it might have been possible for our

friends to have relied on material after the

event in the form of contemporanea expositio.

That would have required an examination of what

the profession, in journals or in the newspapers,

let us say,of the professional institutes, might

have assisted the Court in relation to what the

legal profession, for example, thought of the

legislation and its operation immediately after it

was passed. But, this material, Your Honours, is

hearsay of the worst kind, with material

contributed by writers with an obvious animus

against the bar. And, we would submit, that material

of that kind is entitled to about as much respect
or assumption of truth as the gossip colunms in
various newspapers in 1988.

Now, Your Honours, looking next at the parliamentary debates we would say this; they

demonstrate that the most serious concern of the

parliamentarians was that some barristers accepted

money, then failed to attend and then failed to

return the money. That is an assertion which is

repeated on many occasions in the debates. For

what it is worth, Sir Arthur Dean in his book

"Multitude of Counsellors", says that he researched

the matter and found absolutely no evidence to

justify that charge having been made in any particular

case, but it is certainly made on a number of

occasions. The debates also show, Your Honours,

that the parliamentarians repeatedly referred to

this failure to attend as neglect. And, it would.

be our submission that when reference was being

made to the word "negligence" in the Act it will

be seen that repeatedly the parliamentarians had

in mind that negligence was failing to attend and
do the job, and .keeping the money.	We ref er, and I

to pages 97, where there was a lengthy contribution

do noL propose take the Court to any page, but

from Dr Hearn, who is an eminent lawyer;

pages 104 to 105, Mr Balfour's contribution;

pages 162 to 163, Mr Wrixon's contribution;
page 208, Mr Roberts, and page 262 to 263,

Mr Melville's contribution. And, Your Honours,

I give the following other page references shortly:

pages 67, 86, 92, 97 to 98, 117, 157, 158, 161,

171 and 201. And,may I add, Your Honours, that

reference to page 300, will indicate that at a

later date after the Act had been passed and after

the Victorian Parliament heard that the Victorian

bar proposed to set up an association none the less

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which would not accept work save through barristers,

that at least two of the members were outraged. One

said, "Call out the militia", and the other said,

"We will not stand for boycotting".

(Continued on page 168)

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MR CHARLES (continuing):  Accordingly, we would say that it

can be demonstrated that section 5 is intended to give contractual force to the obligations of

the barrister. That was precisely the view that

was taken by Sir Frederick Mann in the case of

IN RE MELBOURNE PARKING STATIO~	(1929) VLR 5.
The passage appears at_ page 9.

What His Honour says, at the bottom of page, was:

As to the effect of the Act, all that it did was to give to the well-know and

well-established obligations arising

between client and solicitor on the one

hand and counsel on the other a contractual

force. It in no way altered the nature of

those obligations.

If it is relevant, Your Honours, in 1891,

Sir Frederick was 22. Section 5, we would contend,

cannot have been intended to provide the measure

of liability or its extent as such. If the liability

of the solicitor was in contract, the extent or the

measure of liability could only be estimated by

an examination of the contract and the terms of the

retainer. Now, in other words, what we are putting

as to the interpretation of the section was that

this is setting up a form of statutory contract or

nexus which had not previously existed and which says

nothing about the defences that may be open to the
solicitor or to the barrister in any particular

case.

For example, there is, we would submit, no reason

in theory why a solicitor should not set up a term

in the contract of service with a client that the

solicitor will not be liable in negligence. If that

is so, one assumesthat, in terms of the Act at l.east,

leaving aside one's professional bodies, that the

barrister might do precisely the same. If that is

so, if one is forced to look at the terms of the

retainer to see the extent of the liability, it

inevitably follows that section 5 was saying nothing
about the area oi extent of liability.	Now, the

fact that a solicitor might, in an appropriate case,

contract out of liability was referred to very

recently by Lord Justice Robert Goff, as His Lordship

then was mt:he ALIAKMON - I do not intend to refer
the Court to the case and it is not on our list,

it is a matter which emerged this morning - at

(1985) 1 QB 350 at 397, LEIGH AND SILLIVAN LTD V

ALIAKMON SHIPPING, the case known as the ALIAKMON.

In dealing with the question of ROSS V CAUNTERS

and whether that case was correctly decided,

His Lordship dealt with the question of what would

occur if a disclaimer had been included, and

specifically dealt with the hypothetical situation

of a solicitor who had set up a condition limiting

liability in his contract without any suggestion that

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it was not a permissible course to take. We would

submit that there is no obvious reason why such a

clause should not be provided. If a solicitor is

asked by a lay client to do some work and let us

say he is unable for one reason or another to have

direct access to the tools of his trade, the books

he may need to rely on, the conveyancing precedents,

why should he not say, "Yes, of course, I will help.

It will be a rush job, all care but no responsibility"

as my friends, we would say, have conceded.

(Continued on page 170)

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MR CHARLES (continuing):	Now, Your Honours, there is

abundant authority that the duty of the solicitor

and its content must be directly related to the

confines of the retainer. That was said by

Mr Justice Oliver in MIDLAND BANK TRUST V

HETT, STUBBS & KEMP, (1979) 1 Ch 384 at pages 402-403.

May I add, Your Honours, a reference to the

DUCHESS OF ARGYLE V BEUSELINCK, (1972) 2 L LR 172.

Now, Your Honours, we contend that the purpose

of the Act and section 5 in particular was to
put the barrister and the solicitor upon the same
footing and, in the case of the barrister, to set

up the statutory contract or nexus between the

barrister and the client.

We say, Your Honours, that section 5 puts

nothing about available defences, about the terms
of the contract, or about public polic~ Our

submission is that it was not concerned with those

matters and that the debates show that there was

very little, if any, mention made in them of the

public policy connected with advocacy.

DAWSON J:	What do you say about section 8(3)?
MR CHARLES:	We say about that, Your Honour, that that section,

which is now section 12, was something which was

inserted at the last minute. The debates show that

at page 270 in the right-hand column at point 6,

and page 286 in the right-hand column at point 8.

Reference was made to the difficulties that might

arise in collecting back the fees that had been

paid if, for example, there was a special agreement

made to avoid liability or it was said that the

solicitor might not be able to recover although

the client might or that portion might not be

recoverable.

What we say, Your Honours, is that section 8,

now section 12, was a section that was added as a

piece of machinery to enable a provision for taxation

to assist the client in gaining back the whole or

portion in an appropriate case and to provide a means for the assessment of what was an appropriate portion to be recovered, a section, in other words,

Your Honour, added to enable rights given earlier

in the Act and to be made good in practice.

In any event we would say that section 8 does

not exhaust the area of operation which is given by

section 5. We would put it, Your Honours, that if

the purpose of section 5 was to set up a statutory

contract it would also have the effect that if a

barrister failed to appear at court proceedings in

a situation which, we would argue, is not covered

by the immunity for actions as an advocate in court,

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that in that situation the client would be able
to recover not only the fee paid, as to which
section 8 would have had relevance, but also

possibly damages caused by the failure to attend.

DAWSON J:	I rather had in mind that if section 5 set up a statutory contract'Whiclidid not contain any
exclusions, then subsection (3) would prevent a contract being made which contained exclusions.

MR CHARLES:  Yes, I accept that, Your Honour, that

section 8(3) certainly prevents a	particular
type of contract being made.

DAWSON J:  And perhaps if the contract excludes

liability for negligence.

(Continued on page 172)

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MR CHARLES (continuing): We would say, Your Honour, that

it prevents a particular type of exclusion only

in terms. But in any event, Your Honours, if this

Act was saying nothing about the immunity of the

advocate in terms which had been seen to exist

some 30 years before in SWINFEN V LORD CHELMSFORD,

then there would be no reason to assume that that

subsection was intending to impose any liability

which the immunity would otherwise have prevented

from arising.

There is one further point, Your Honours, which is that if the effect of section 5 is to

enable, in appropriate circumstances, action to

be taken for negligence, it would plainly permit

actions to be brought seeking recovery for poor

advice,for the improper drafting of pleadings or

for the other well-established out-of-court

activities conducted by barristers and, in some

cases, which are the whole of the barrister's

practice.

Your Honours, it is our submission that,

properly viewed, it could be seen that solicitors

were also entitled to the immunity for advocacy

in 1891 when they were engaged in that function

and we refer without repetition to what was said

in KENNEDY V BROUN, to the terms in which the

judgment of Chief Justice Erle point repeatedly

to the function of advocacy as attracting that

necessary immunity. We submit, therefore,

Your Honours, that solicitors were entitled to

that immunity in 1891 and, if so, that barristers retained that immunity thereafter, having regard

to the words of the section.

We say, alternatively, that the section did

not deal with defences that might be available
with the area of liability and that the section

says nothing about the defence of immunity on the

grounds of public policy. (Continued on page 173)

ClT32/l/ND	172	11/2/88
Giannarelli(2)

MR CHARLES (continuing): And, we say, thirdly, Your Honours,

that the legislators, in any event, did not intend to

abolish a public policy immunity to which they

did not refer and to which, we say, they quite

possibly did not advert.

Now, we would add to those submissions,

Your Honours, that in any event barristers

practices involve work out of court, that in 1891

a client would have had difficulty, before the

Act it would have been impossible, indeed, quite

apart from the public policy immunity, to sue the barrister in relation to any part of his work but

that, at least, was because of the difficulty of

there being no privity on terms that were not varied,

we would say, until DONOGHUE V STEVENSON established

the separate action in negligence.

Now, so far as barristers were concerned we

put to the Court that the barristers' common law

privilege was of a kind which could only be

abolished by express words or necessary intendment

and for that submission, Your Honours, we rely on

what was said in PYNEBOARD V TRADE PRACTICES COMMISSION,

152 CLR 328 at page 341, and we submit there that

general words used by legislators who did not have

that privilege in mind would not suffice to remove

it. In that context, Your Honours,we make short

reference, also, to POTTER V MINAHAN, 7 CLR 277

at page 304, and HOCKING V WESTERN AUSTRALIAN BANK,

9 CLR 738 at pages 745-6.

Now, we say, Your Honours, that the privilege

and its proper public policy basis had been clearly

identified by Chief Justice Erle in

KENNEDY V BROUN and at a variety of points in his

Lordship's judgment but, in particular, at

pages 287 to 288 of the English Report.

(Continued on page 174)

ClT33/l/AC	173	11/2/88
Giannarelli(2)

BRENNAN J:	Is it a privilege or a case of no duty?
MR CHARLES:	Your Honour, we would say it is an immunity.

We would not seek, for a moment, to contend that

there was no duty. We say that it is a well-recognized

duty to the client which the barrister's
disciplinary tribunals will enforce most vigorously.

It is not our purpose to contend that there is

no duty to the client. What we say, Your Honours,

it is a quite different thing to say that that

duty is not enforceable by civil action. And

if one is talking in terms of negligence or contract
that again one of the reasons, but only one, why
it is not so enforceable, is the conflict or the

tension which may exist between the barrister's

duty to the client and his duty to the court and

the public. Now -

BRENNAN J: Well, duty,_ you say, is a duty different from

the enforceable duty which founds an action of

negligence?

11R CHARLES:  Yes, Your Honour, yes, exactly. Now, I have

dealt, Your Honours, I think particularly in

answer to Your Honour Justice Dawson's question,

to what we say section 5 does. May I add to

those submissions that we would say that

even if the proper view was that solicitors could

be made liable for negligence in court, that if
the section is properly to be understood in
the way we have submitted, that it was setting
up a contract and not dealing with defences, then
even then the section would not have operated

to override a defence, it would simply set up the

contract and would leave the matter of defences,

as they develop through the law, to be taken

up from time to time and that would mean that even now solicitors would be entitled by Victorian law, we would say, to claim the appropriate immunity

for any actions of theirs in advocacy.

(Continued on page 175)

ClT34/l/SR	174	11/2/88
Giannarelli(2)

MR CHARLES (continuing):  Your Honours, if one looks by

contrast at the submissions made on behalf of

the appellants in these proceedings, it is said

that the section is a fixed time statute; that

it requires one to look at the situation obtaining,

in 1891, at a particular date, 23 November, to see

what the liability of the solicitor was then.

The section does not purport to say anything

as to the liability of the solicitor from that
time forward. It purports to fix the liability

of the barrister as at that date by reference

to the solicitor.

If our friends are correct and if the operation

of the section is what they have contended for,

one finds that the barristers' liability is

then fixed as at 1891. The solicitors' liability,

of course, Your Honours, has developed enormously,

as this Court well knows; since that time there

is said to be, now, a liability on the part

of the solicitor in negligence; a liability

which may, in recent times, have been found

to extend well beyond the client to third parties.
What, according to our friend's contention,

has been achieved, is that the barristers' liability

have been fixed, in a statute which, plainly

enough, intended to put the two branches of the profession on the same footing, and the

solicitors' liability has now, being untouched

by the section, developed in a quite different

way.

So we have a divergent path produced which,

one would have thought, is something not in

the minds of the legislators or their intention
at all. If the section is regarded simply

as setting up the statutory contract and preventing

any grounds for its existence then one is able

to cope with the advances in the law that have

happened from that time and to enable liability

according to the principles espoused in ROSS

V CAUNTERS to be applied if that is seen as being an

appropriate course.

We submit, Your Honours, that the decision

of Mr Justice Mann in RE MELBOURNE PARKING STATION

demonstrates the view of the profession as at

that time. So far as we have been able to find

there had been no successful submission before

the decision of Mr Justice Marks at first instance

in this case, in 1986, that barristers were

liable for negligence in court.

ClT35/l/SDL	175	11/2/88
Giannarelli(2)

MR CHARLES (continuing):  We know of no case where such a

submission had been made between 1891 and 1929

and, therefore, Your Honours, we submit that it

can be demonstrated that there had been no attempt
so far as one is aware to fasten such liability

on barristers for the best part of a hundred years after the section was brought into effect; a very

odd result if the intention had been and the

contemplated effect had been to impose liability

on barristers for their negligence in court.

Now, in so far as one can contemporanea

expositio in aid and it has been said, Your Honours,

that one may look at the actions of the legal

profession to see how a section is to be

interprete~ the actions after the event, then one
would say that the omission to take actions of
this kind for a hundred years before the ingenuity
of Mr Hughes and Dr Pannam may have succeeded in
arousing this case demonstrates a form of

expositio which was contemporanea, at least in

its outset, and of long standing since.

For the fact that that maxim is not limited

to what the courts decide and may extend to the
practice of the legal profession and the way those

who are bound by the Act behaved, we would adopt

what is said by Mr F.A.R. Bennion in his work on

Statutory Interpretation, which is published in

1984 at page 371.

Your Honours, our last submission in relation

to section 10: my friends have submitted that if
the Act is to be interpreted as we submit and

contrary to their view, that it was the greatest

coup for barristers that could possibly have been

imagined. With respect, Your Honours, that is

altogether unfair to the other branch of the

profession. As the Court will recall, barristers

were then not subject to competition from their

brothers and sisters and the other branch of the
profession.	The effect of this Act was to subject

them to that hot competition.

(Continued on page 177)

ClT36/l/ND	176	11/2/88
Giannarelli(2)

MR CHARLES (continuing):  They must,indeed,have been extremely

nervous that the bread was going to be taken from

their thinning mouths and the work fell instantly into the hands of solicitors who would be arguing cases in court and ceasing to brief them and to

offer them the fees that were apparently causing

so much discord among the parliamentarians. It was

not a coup at all. It brought about a situation

where solicitors were going to able indeed, where

parliamentarians were encouraging them, to advance

to the courts with their proceedings.

Now, Your Honours, at this point, I have concluded my submissions on section 10.	I am about
to start on the second branch.	I am in the hands of

the Court as to whether I should proceed to do so.

MASON CJ:  Yes. Perhaps, Mr Charles, I might ask you, do you

have any comment to make on the case of LESLIE V BALL

to which Justice Deane draw Mr Heerey's attention,

and in particular the comments of Justice Adam Wilson
at page 519, as bearing on the interpretation of

the 1891 statute?

MR CHARLES:  I have not, Your Honour. May I answer that

question after lunch?

MASON CJ: Certainly, but you might proceed for the two or three

minutes remaining to deal with the matter in

your argument.

MR CHARLES:  Indeed, Your Honour. Your Honours, I have

referred to the position of why it was barristers

could not sue for their fees. May I simply give

the Court the references to the line of authorities

through which the irrrrnunity is said to have developed:

FELL V BROWN, referred to by my learned friend,

Dr Pannam in Peake's Nisi Prius Reports;

SWINFEN V LORD CHELMSFORD, RONDEL V WORSLEY,
SAIF ALI V SYDNEY MITCHELL, REES V SINCLAIR, and

FELDMAN VA PRACTITIONER. The last case, I think,

Your Honours have not have referred to - it is reported

in (1978)18 SASR at 238.

WILSON J:  What was the name of the case?

MR CHARLES:  I am sorry, Your Honour. FELDMAN VA PRACTITIONER

a decision of the Chief Justice, Dr Bray. In sum,

it decided that just as in REES V SINClAIR it had been said there was

no reason why in that fused profession the immunity

discerned in RONDEL V WORSLEY should not apply; so

also in the fused profession of South Australia.

The Chief Justice was stating His Honour's view that

the immunity applied just as well there in cases of

advocacy in court.

ClT37/l/VH	177	11/2/88
Giannarelli(2)

MR CHARLES (continuing); Your Honours, as to the advocate 1 s

functions the duty owed to the court and the

interest of the court in the honesty and integrity

of the advocate's performance, I have referred the Court to volume 6, chapter 8 of Holdsworth. May I

add to the reference in SWINFEN V LORD CHELMSFORD

a reference to HUTCHINSON V STEPHENS (1837) 1 Ke. 659,

at page 668 in the judgment of the Master of the Rolls,

Lord Langdale, the passage, Your Honours, in

Master of the Rolls, Sir Baliol Brett, at pages 603	MUNSTER V LAMB, 11 QBD 588, in the judgment of the
to 604, and lastly, your Honours, a passage from
Sir John Donaldson's judgment in the case my friend
referred to yesterday, ABSE V SMITH. My reference
to it is (1986) 2 WLR 322 and His Lordship's reference to these matters is at pages 326 to 327, reasoning which led to the conclusion that the solicitor in
that case would not be permitted even to announce
the settlement to the court.

Basically, Your Honours, all of those cases

stress the necessity for absolute probity on the part

of the barrister and the need for the court to have

absolute trust in what is being submitted. Now,

Your Honours, one of the submissions that is made by

my friends is that the clients need to have - the
inm1unity removed, need to have the ability to take

proceedings to ensure that proper standards are

maintained and, of course, the court is engaged, as

with so many public policy questions, on a balancing

exercise in determining what adverse consequences

will follow from the removal of the inm1unity, as

against what harm is suffered by the public by the

retention of it.

As to that, Your Honours, we say that

traditionally the court has controlled the admission

of lawyers and insists upon the certification of

lawyers after examination before permitting them to

practise.

(Continued on page 179)

ClT38/l/HS	178	11/2/88
Giannarelli(2)

MR CHARLES·(continuing): Secondly, that the profession

insists upon certain standards being maintained,
in the case of the bar, upon pupillage which,

in Victoria, is a pupillage of nine months of

which three months involve full time in tuition.

Thirdly, Your Honours, that the court controls the performance of lawyers before it as do the
disciplinary bodies of the profession, all

of which, we would submit, Your Honours, is

directed to the search, at least, for the highest

standard and for excellence on the part of advocates.

I am certainly not to be taken as submitting

that it is always achieved but ~hose matters

are directed towards that end.

MASON CJ: It might be a convenient time now to adjourn,

Mr Charles. The Court will resume at 2.15.

MR CHARLES: If the Court pleases.

AT 12.47 PM LUNCHEON ADJOURNMENT

ClT39/l/SDL	179	11/2/88
Giannarelli(2)
UPON RESUMING AT 2.16 PM:

MASON CJ:  Yes, Mr Charles.

MR CHARLES: If the Court pleases. Your Honours, in relation

to the case of LESLIE V BALL can we make these

short submissions. The case is an interesting

example of a fused profession where a person,

both barrister and solicitor, had neglected to
perform functions which were properly those of the

solicitor in the circumstances of that case. What

was being contended was in the light of

SWINFEN V LORD CHELMSFORD the amalgam was saying

that because he had also acted as counsel that
the immunity granted by SWINFEN's case extended to cover all of the activities as lawyer. Now,

in the judgment Mr Justice Hagarty, what that

judge is seen to be saying at page 515 is that that

amalgamation of function cannot resultt in.the :i.n:mmity
from suit extending to cover actions for which

a solicitor would previously have been liable on

the ground that they were not done as an advocate

And that, we would say, Your Honours, is plain from

page 515 and that where, at the bottom of the page, the first paragraph of His Honour's judgment at

His Honour is referring to

The peculiar position of the profession in

Canada -

His Honour is saying that if one accepts that that

is the immunity of the advocate that cannot extend

in the way that it is being placed here and that,

we would contend, appears from what is to be seen

at the top of page 516 and the next paragraph,

the first full paragraph on that page also.

Now, Your Honours, when one turns to what

Mr Justice Adam Wilson said, again, we would

contend the court was not on this occasion

deciding that the immunity of an advocate found

to exist in SWINFEN V LORD CHELMSFORD did not

apply in any part of Canada. Our submission

would be that the court was saying, "We are not

concerned with that position in this case." The

judgment at page 518 at point 8 demonstrates the

judge saying:

It may follow, as a consequence to the

right of counsel to demand payment, that counsel

are here on an entirely different footing

to what they are in England.

And then in the next line:

The joinder of the two professions of attorney

or solicitor and barrister may, while they are
united, be a sufficient reason for the distinction

here.

ClT40/l/MB 180 11/2/88

Giannarelli(2)
MR CHARLES (continuing): But, as we read the judgment,

Your Honours, the court was not going so far as

to say that even in that fused profession the

advocate had lost the immunity because of that

joinder. Now, when at page 519, His Honour goes

to the paragraph, beginning:

I am not, therefore, prepared to say

that a counsel in this country, even although

he is not the attorney also, is exempt from

liability to his client for such negligence

on his part of the conduct of the cause as

would make the attorney liable for

negligence in his particular portion of it.

We would say that that covers the situation just

referred to and when he goes on:

But I think there is no doubt that a counsel

who is also the attorney in the cause is

certainly liable for his neglect as counsel,

in like manner and to the same extent as an

attorney is.

We would say that the judge was saying, that when

you have a person fulfilling both functions, he

cannot get out of the liability he would have had

if he had been a solicitor instructing who was

required to take proper preparatory steps to
get the action ready for hearing, he cannot get

rid of that liability and will have the same

liability, in that respect, notwithstanding that

he is the advocate. That is our submission,

Your Honours, as to the meaning of that paragraph.

As to the effect it may have had in Victoria at

the time, we would contend that there must be
some doubt as to whether this case was in front

of the draftsman in Victoria. There is no obvious

indication from the section that the draftsman

had read or learnt anything from SWINFEN V

LORD CHELMSFORD and that case was well highlighted in the judgments in various respects, Your Honours. Now, if l may also return briefly to

a question that Your Honour Justice Brennan put

to me before lunch as to whether barristers were

under a duty. May I go back shortly to that

question if the Court will allow me and draw to

the Court's attention a recent decision of the

Court of Appeal in HILL V CHIEF CONSTABLE OF

WEST YORKSHIRE,(1987) 1 All ER 1173. The somewhat

extreme position was being maintained by the

plaintiff there whose great misfortune it was that
her daughter had been murdered by the Yorkshire

Rippper and who was claiming that the Chief Constable of West Yorkshire and the police force, had been

insufficiently astute in pursuing their investigations

and should have apprehended the killer at an earlier

stage and before her daughter had been murdered.

ClT41/l/SR	181	11/2/88
Giannarelli(2)

MR CHARLES (continuing): Now, it was held that in the absence

of any special relationship between the police

and a criminal arising out of the fact that the

criminal was in custody that what the court said

was that the general duty owed by the police to
the public to suppress crime did not give rise

to a duty owed to individual members of the public.

Now, Your Honours, there is a particular passage

to which I desire to refer the Court which appears

at page 1183 and its relevance is in that

Lord Justice Glidewell, on that page, did equate

the reasons why there would be no liability in
this case with those seen to exist in

RONDEL V WORSLEY, and what His Lordship said,

at point 8, was that:

If the police were liable to be sued

for negligence in the investigation of crime
which has allowed the criminal to commit

further crimes, it must be expected that actions

in this field would not be uncommon.

Investigative police work is a matter of judgment

often no doubt dictated by experience or instinct.

The threat that a decision, which in the end

proved to be wrong, might result in an action

for damages would be likely to have an

inhibiting effect on the exercise of that

judgment. The trial of such actions would

very often involve the retiral of matters

which had already been tried at the Crown

Court. While no doubt many such actions would

fail, preparing for and taking part in the

trial of such an action would inevitably involve

considerable work and time for a police force,

and thus either reduce the manpower available

to detect crime or increase expenditure on

police services. In short, the reasons for

holding that the police are immune from an

action of this kind are similar to those for

holding that a barrister may not be sued for	negligence in his conduct of proceedings in
court: see RONDEL V WORSLEY.
Your Honours, that case has been referred

to more recently in the case of YEUN KUN YEU V

THE ATTORNEY GENERAL OF HONG KONG, (1987) 3 WLR 776,

and it is referred to at page 785. The Privy Council's

opinion was delivered by Lord Keith and Your Honours

will see the passage set out at page 785 in terms

that appear to indicate the approval of the

Privy Council of that decision.

ClT42/l/AC	182	11/2/88
Giannarelli(2)

MR CHARLES (continuing): May I, at the same time, draw the

Court's attention to what is said at pages 782

to 783 where Their Lordships deal, again, with
what Lord Wilberforce had to say in ANNS case in

terms which appear to suggest that the House of

Lords is swinging towards the view taken in

relation to proximity and the establishment of
a duty of care closer to the lines which this Court

has, in the past, taken and with specific reference

to what was said in the COUNCIL OF THE SHIRE OF

SUTHERLAND V HEYMAN and there is reference to the

.judgment of two members of this Court, both at

the bottom of page 782 and the top of 783.

One reason for mentioning those matters,

Your Honours, is that a second way of approaching

the question of the barrister's function is to
regard the matter in the same way as
Sir Harry Gibbs approached it as referred to at
the top of page 783 and the identification of a
duty arising and then, at the same time, to test
the matter in the second of the steps referred

to by Lord Wilberforce as to whether there were any

considerations which ought to negative or reduce

or limit the scope of the duty.

Whichever way the matter is approached,

Your Honours, certainly we, for the respondents, do not seek to say that there is no obligation

on the part of the barrister to the barrister's

client. We would firmly contend that the barrister

has very firm obligations to the client. It is

a different question, as we put it, whether those

obligations may be reduced to a duty recognizable

by the law and enforceable as such.

Your Honours, if I may return to the matters

being argued before lunch, we would contend that

the fused nature of the profession in Victoria

has absolutely no bearing on the question which

now faces this Court, the immunity of the advocate,

for reasons which will be implicit in everything

that has been said before and we would rely on

what was said in the judgments, both in REES V

SINCLAIR and FELDMAN VA PRACTITIONER in that regard.

(Continued on page 184)

ClT43/l/ND	183	11/2/88
Giannarelli(2)

MR CHARLES (continuing): Next, Your Honours, it is put

that advocates are in some uniquely privileged position if they are given an immunity of this

kind.	We submit that that contention is, in
the fist place, quite wrong.	Even if it were

correct we would say it gets the matter entirely

out of perspective. The question is whether

there are good reasons or whether there are

not for the immunity that is sought to be maintained.

But, in any event, Your Honours, it is clear

from one of the cases just referred to, HILL's

case, that there are a variety of circumstances

in which the courts will say it is not desirable

that actions be permitted to be brought - the

case of the policeman is one.

But, obviously enough, Your Honours, that

is not the end of the matter. The same public policy, in our submission, entitles judges and

arbitrators to immunity from liability. That

public policy is not invariably left as a matter

of common law; it will, from time to time,

be reduced to statutory form. The immunity

which had once been seen as the common law immunity

of the arbitrators was threatened by the decisions

in SUTCLIFFE V THACKERER and AARONSON V CASON

BECKMAN and, for that reason, in the 1984 COMMERCIAL

ARBITRATION ACT which is now in force throughout

the country, negligence was specifically removed

as a potential cause of action against arbitrators.

Further, Your Honours, we would submit

that at the present time, precisely the same

common law immunity would attach in relation

to witnesses. It is not an answer to that contention

to say that witnesses have a particular form

of immunity from statements in relation to defamation.

Suppose, for example, in a criminal case the

evidence which ultimately leads, if one can

put it in that way, to the conviction of the

accused person, is scientific evidence given	by an expert, paid,for the process of doing
so in the witness box. Is it to be said that an action may be brought against that expert witness if the evidence given, in its content,
was negligent?

If it is to be said that actions may be

brought against barristers for their conduct

of cases, why not also can actions be brought

against experts?

ClT44/l/SDL	184	11/2/88
Giannarelli(2)

MR CHARLES (continuing):  Now, it may be that it would be said

that Crown witnesses owe no duty because they are in

a position in which any relationship they have is

with the Crown. One would have thought that it would

be clear enough to any such witness that negligence given -

and let us assume for a moment it is crsss negligence

in relation to the evidence - would obviously enough

be likely to bring about the most serious harm to

the accused person. But if one leaves for the moment

the position of the witness called for the Crown,

what of the witness called on behalf of the defendant?

Why could not the defendant, who has engaged by contract

expert witnesses to give evidence on his or her behalf,

not be in like position entitled to take proceedings

if that evidence was given negligently and because of

its inadequate nature, resulted in conviction?

Now, it would be our submission that there are plenty of persons now who make a profession of giving

expert evidence. I do not seek to belittle them in any

way in so doing. There are experts in their field who

regularly give such evidence. They, we would say,

are at present, at least, immune from liability for the

consequences of any negligence that may occur in the

course their evidence in court. Now, we would submit

that the proper starting point for an examination of

any immunity of this kind, is the administration of

justice and that its clearest expression is to be fou1'd

in MUNSTER V LAMB.

We would submit that it is that same immunity

which gives rise to the immunity of the advocate. In
that regard, Your Honours, may I take the Court back

to what was said in MUNSTER V LAMB? May I concede at

the outset that there have been statements made by

vairous judges of high authority, such as, for example,

Lord Russell in SAIF ALI who said that his view was

that this was an immunity of an entirely different kind;

it has been referred to as a privilege from suit for

defamation rather than an immunity.

(Continued on page 186)

ClT45/l/VH	185	10/2/88
Giannarelli(2)

MR CHARLES (continuing):  We would put it that the

considerations that can be deduced from looking at

the judgment of the Master of the Rolls at pages 600

to 605, there is a long passage which my friend Dr Pannam has read, which I will not repeat, at

pages 603 to 604. May I add the passage at 605:

That the rule is founded upon public

policy. With regard to counsel, the

questions of malice, bona fides, and relevancy,

cannot be raised; the only question is,

whether what is complained of has been said

in the course of the administration of the

law. If that be so, the case against a

counsel must be stopped at once. No action

of any kind, no criminal prosecution can

be maintained against a defendant, when it is

established that the words complained of were

uttered by him as counsel in the course of

judicial inquiry, that is an inquiry before

any court of justice into any matter

concerning the administration of the law.

Your Honours will, of course, recall that the

defendant in this case was a solicitor who had been

engaged in the litigation. The solicitor is here

referred to as counsel. The reference is to matters

said in the course of proceedings in a judicial

inquiry. We would say, Your Honours, it is just as

likely that this case decided in 1883 - if any cases

were present to the mind of a draftsman, if it was

also present to the mind of a draftsman - it

is a case in which the words used by the Master of

the Rolls, but particularly directed to the activities

of a barrister, but in the context of actions by a

solicitor, and what was being said was that

SWINFEN V LORD CHELMSFORD had granted innnunity in

relation to a barrister's actions, but so long as

the actions were bona fides. Thi~ was the case in

which it was decided that even if those actions were

not bona fides the innnunity would still exist for

these reasons of public policy, as stated by the

Master of the Rolls.

To the same effect, Your Honours, is what was

said by Lord Justice Fry at pages 606 to 607, and

the development of that line of cases follows,

Your Honours, through WATSON V McEWAN in

(1905) AC 480, at pages 487 to 489, in the speech

of Lord Halsbury which indicated that the same

innnunity found to exist in MUNSTER V LAMB would

necessarily have to attach to the taking of the
witnesses' preliminary statements. That line has

been followed through into the decision of this

Court in CABASSI V VILA, 64 CLR 130, and particularly,

Your Honours, the passage to which reference is repeatedly made in the English decisions is the

words of Mr Justice Starke at page 140.

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MR CHARLES (continuing): It is sometimes said in answer to

the contention that this provides the advocate

with his immunity, that it relates simply to

defamation, to privilege. The answer to that,

in our submission, is found both in CABASSI V VILA

and in the next case down the line which is

MARRINAN V VIBART. Yours Honours, MARRINAN V VIBART

was a case brought by a disbarred barrister who

claimed that there had been a conspiracy between

two police officers to make false statements in
relation to him including at an inquiry before the

Benches of Lincolns Inn, as a result of which

he was disbarred. I am sorry, Your Honours, it

is referred to in (1963) 1 QB 234.

Now, the passage in the judgment of

Mr Justice Salmon appears at pages 237to 239 and

the gist of that, Your Honours, is that it is,

in effect, not simply a privilege from suit for

defamation, it extends to an immunity covering

matters such as perjury and, also, an action for

conspiracy because, as we will submit, the law

is clear that a civil action may not be brought

for perjury.

Now, Your Honours, if that decision be good law,

we would submit that the right, whatever it is

described as, cannot simply be characterized as

a privilege if one cannot be proceeded against in
a civil action for conspiracy. It is something

greater, it is an immunity. Your Honours, the

cases that establish that there is no civil action

for perjury - if I may give two further references.

(Continued on page 188)

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MR CHARLES (continuing):  The case of TAMPION V ANDERSON,

(1973) VR 715, in the judgment - I think it is

of the Full Court - at pages 721 to 722. I give

the Court that reference partly because it was

the litigation brought by the scientologists against

Sir Kevin Anderson arising out of the inquiry into

scientology which was also the source of the

amendment to the Victorian EVIDENCE ACT which we

referred to in our extrinsic materials with which

the Court has previously been supplied. I am

sorry I thought these had been made available to

the Court; may I hand these copies of some

further extrinsic material up to the Court now. May I indicate to the Court, very briefly

and without further comment, that I had submitted

to the Court before lunch that the community view

consistently seen in relation to the LEGAL

PROFESSION PRACTICE ACT as from 1891 up to 1986

had been that there was an immunity from suit in

relation to what happens in court. We have

tendered the Hansard debates in relation to that

portion of the EVIDENCE ACT which was enacted in

November 1971 for the purposes of showing that,

at least in the contemplation of the Victorian

Parliament, at that time, 80 years after the

legislation was passed, that there was, in the

eyes of the Victorian Parliament then, a complete

immunity from suit for actions happening in

court along the lines espoused in MUNSTER V LAMB.

Your Honours, we would contend that for the

reasons variously siven in MUNSTER V LAMB and the
cases that follow 1t, it must be very difficult,
if not impossible to argue,if those cases are good

law, that a witness who is immune from civil action

for perjury or for conspiracy to give false

evidence could none the less be liable for

negligence in testimony.

(Continued on page 189)

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MR CHARLES (continuing):  Now the nature of the wrong would

appear to be less and the pressure that would be

imposed by the likelihood of such actions against

which the rule in MUNSTER V LAMB is devised would

arguably be greater. It is much easier to slip

accidentally into carelessness than by design

into positively false evidence and yet the

protection granted is clearly in relation to

perjured evidence. The discouragement to giving

evidence, the pressure against appearing in

court, would, in our submission, be the strongest

of reasons why a witness, including an expert

witness, could not be made liable for such

evidence. Now, accordingly, Your Honours, we

would suggest that these considerations lead

fairly clearly to the view that an action could

not be brought against witnesses including

expert witnesses for negligent testimony resulting

in conviction. And it would be obvious enough

that such evidence may be crucial.

Now, we would submit in passing, that if that

analysis is correct, the advocate is clearly in
the same position in relation to defamation,
in relation, we contend, to actions for conspiracy
and precisely the same reasoning, would lead to

the conclusion that the advocate,if not potentially

liable for conspiracy,should surely not be

liable for something less in relation to negligence

in the conduct of proceedings. Now, Your Honours,

if it is said that there is a different line of

reasoning, or a differently seen public policy

as the basis for this reasoning, our submission

would be that on the face of it the reasoning leads

to precisely the same conclusion and a large

number of judges have asserted that it comes to

exactly this conclusion. May I give as examples,

and without taking the Court to the passages, in

RONDEL V WORSLEY,(1969) 1 AC 191, what Lord Reid

had to say at pages 229 to 230, Lord Morris at

page 251 t9 253, Lord Pearce at pages 266 to 271
and in SAIF ALI V SYDNEY MITCHELL & C0,(1980)	AC 198,

what Lord Wilberforce said at page 214, Lord Diplock
at page 222, Lord Salmon at page 230 and

Lord Keith at page 235. Lord Russell, we except,

is the stand-out who says it is quite plainly a

matter of a different kind.

We contend, Your Honours, that it would be very odd that an advocate could be immune from

action for defammation for malice, for conspiracy

to give false evidence, and yet liable for

negligence in court. Now, next, Your Honours, we

submit that it would bring the administration of

justice into the most serious disrepute to require
a court of co-ordinate jurisdiction to try the

question whether another court reached a wrong decision

and if so why? If I may give brief reference to

ClT49/l/SR	189	11/2/88
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some of the judges who have arrived at this

conclusion. In RONDEL V WORSLEY, Lord Reid made

reference to these matters at page 240; Lord Morris

at page 248 to 249. In SAIF ALI, Lord Diplock

referred to these matters at pages 222 to 223 and

Lord Keith at page 235; and in REES V SINCLAIR,

Mr Justice McCarthy, the President of the

Court of Appeal, at pages 183 to 184. The reference

to REES V SINCLAIR, Your Honours, is (1974) 1 NZLR 180.

It was Lord Morris, in the passage which I have

referred to the Court at pages 248 to 249 who

made specific reference to the problem that would

arise if one had to call in later proceedings the

jurors or even the magistrates who had participated

in the first.

(Continued on page 191)

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MR CHARLES (continuing):  May I, Your Honours, attempt

to go beyond the statement of principle that we

have sought to put here, the brining of ~ustice

into disrepute,and look at some of the underlying

reasons why it may be said this conclusion would
be arrived at.

The first, we would submit, is that having

exhausted the appellate process ex hypothesi the
person who is dissatisfied with the result of a

litigation may then commence proceedings against

counsel or, arguably, witnesses and even possibly

the ~udge, asserting that the, let us say, criminal

proceedings were wrongly decided and those matters

will be raised in a different court with a different

onus of proof. If one takes an entirely hypothetical

example one could find, for example, that persons

who had been ultimately convicted of murder after

committal proceedings, after a trial, after a Full

Court appeal and even after the matter had been

disposed of in this Court might bring proceedings
against counsel and, we would say, if the immunity

of counsel goes, why not against witnesses who

may have contributed in relation to every step

of that proceeding. One will find, if I may say so, the somewhat disturbing prospect of a single judge of some supreme court considering the process
of appeal in this Court, the process of reasoning

by which this Court had arrived at a particular

conclusion on the basis of arguably negligent

evidence or advocacy, and we would put it that

it is difficult to imagine anything which could

work more seriously to bring the law into disrepute.

Now, in civil proceedings, Your Honours, they

can be taken by the unsuccessful litigant against

counsel and again, we would submit, against witnesses

and in these proceedings the successful litigant

will not necessarily be a party. So that someone

who has succeeded in an action of defamation, or

in asserting breach of contract, or who has succeeded

in defending an action that he or she was guilty

of breach of contract or of misleading conduct
or matters of that kind,will find other proceedings

being taken in which the contrary conclusion is

asserted and that a miscarriage of justice took

place on the first occasion. So that a person

may find that having cleared himself of matters
alleged in a defamation the defamer is angrily

taking proceedings elsewhere to which he is not

a party and which may result in further damage

to his or reputation. In those proceedings,

Your Honours, it may be said that the party who

successfully cleared his reputation on the first

occasion may seek to be joined as a party but

should he be put to that process having succeeded

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on the first occasion and, no doubt, obtained costs;

is he to be put to the process of seeking to be

made a party or, alternatively, may he, being not

a party in the first instance, not aware of the

proceedings, to discover at some late stage that

a trial is proceeding in which a name is being

bandied about, or even after the event that the

action on which he had first succeeded has now

been retried to the great disadvantage of his

reputation.

Now, Your Honours, thirdly, imagine the

position of the young counsel appearing before

a magistrate's court early in career, fumbling,

having great difficulties in putting forward evidence
before the magistrate, cross-examining with little
skill and, ultimately, failing on behalf of the

accused, or the litigant, before that particular

magistrate. Suppose, as occasionally happens,

that counsel's negligent conduct of the proceedings

had absolutely no impact in relation to the result.

It is an unfortunate fact that, occasionally,

magistrates invariably accept the evidence of police
witnesses no matter what is put to them in

cross-examination.

Now, in those proceedings, Your Honours, when

the disgruntled accused perso~ convicted by the

magistrate in those circumstances and having seen

a fumbling performance by young counsel, takes

proceedings angrily against that young counsel,

what will follow?

(Continued on page 193)

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MR CHARLES (continuing):  Is that young counsel to be

entitled to call the magistrate to indicate what

the magistrate's view was of the evidence that,

as far as the magistrate was concerned, and having

told counsel afterwards, "Look, of course the

police were right. I had no doubt of the matter

from the very word 'go:"? If it is said that
counsel cannot call the magistrate, can counsel

call the other counsel seated at the back of the

court, who are able to say that that magistrate is

known never to have ever rejected the evidence of a police witness? If that cannot occur, is it to be said that there can be no later speculation in

court proceedings as to the particular intentions
of that magistrate in relation to the evidence given

by police witnesses? How can a matter of that kind

be conducted? How can the negligence be shown to

have caused damage without the most precise

investigation of the manner of approach of that

particular magistrate?

Now, Your Honours, every action of this type

will inevitably involve the assertion that the law

has miscarried. It will be asserted that there is a

failure of justice which involved, in some way, the tribunal

before whom that matter was heard. Now, these

submissions raise, as a critical question, the problem

of causation, and that is one of the matters which is

at the root of the submission we make that the

permitting of actions of this kind will bring the law

into disrepute. We would submit that there are very

few cases which it can be said will clearly be

matters where negligence has brought about the

consequence of damage.	The situation will very rarely
be black and white; it will usually be grey.	May I

take, by way of example, the present case, and without

asserting that what I am putting to the Court is a

matter of fact, ask the Court to contemplate a

hypothetical situation?

One has section 6DD in the ROYAL COMMISSIONS ACT.

Suppose, Your Honours, that the solicitors acting for

the accused, put to counsel section 6DD and request

counsel to take that point before the committal,

before the judge at first instance. Suppose that

counsel does what my learned friend, Mr Heerey, said
this this morning, robust counsel of consequence will

do, they give serious consideration to the matter; they

read the decision of this High Court in WINNEKE's case

and they conclude that there is no good defence offered in

reliance on section 6DD and that the point should not

be taken. As good, robust counsel, like my friend,

Mr Heerey, says, they tell the client they are not

to waste the Court's time by reliance upon section 6DD

and the matter will proceed in other ways. They then

go before Mr Justice Kaye who, in this hypothetical

example, is hearing the case, and persons acting for

a different party raise the matter - a second accused

ClTSl/1/VH	193	11/2/88
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raise the matter before Mr Justice Kaye, who gives

serious consideration to the question and as

His Honour's reasons for judgment show in the

unreported judgment which we have had made available

to the Court, His Honour takes the view that the

point is bad both in principle and on authority

and rejects the defence. Now, how is it to be said here that there is, in the first place, negligence; how is it to be said that if there was negligence,

it caused damage? Take the matter further: when

one finds at the next stage that the accused who

had the matter raised on his behalf by

Mr Hughes, QC, where the matter fails before

Mr Justice Kaye, is it to be said that Mr Hughes in

turn is possibly liable in negligence for having

actually taken the point but not putting it

forcefully enough to get Mr get Mr Justice Kaye

to accept it?

Now, Your Honours, we would say that it would be

very difficult in the first place either to determine

there had been negligence or, in the second, to

determine in this case that it has caused any damage.

As to the further point pressed by my friends this

morning, that it was perfectly clear that it was the

duty of counsel, both to the client and to the

Court, to raise this question, we would put to the

Court in the way the matter has just been argued,

how can it be said that a robust counsel who said

the point is bad, has a duty to put a point he thinks

is bad?

(Continued on page 194)

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MR CHARLES (continuing): Further, Your Honours, as to the

consequences that it may be said will flow from

imposing a duty on counsel which may result ·rn liability

for action, how can it be said that in the future

any counsel who has had put to him a matter for

argument by his solicitors will confidently refuse

to argue that point. One would have thought it

will be a matter that is obvious beyond statement,
that if liability is to be imposed and a course

is requested, even of robust counsel, that it will

require the most complete certainty that the matter

is not capable of argument before the matter will

be put to one side.

May I add, Your Honours, that when one looks

further at the judgments that were delivered in

GIANNARELLI's case - I do not want to take the

Court to them at any length - the case is referred to in, I think, 154 CLR 826. May I simply remind the Court that reliance was placed on the Solicitor-General

for the Commonwealth in defending the decisions in

the Court below upon the decision of this High Court

in WINNEKE's case, RE WINNEKE EX PARTE GALLAGHER,

57 ALJR 99 and when Sir Harry Gibbs came to deal

with that matter at page 828 His Honour said,

after reference to the point that:

It is true that RE WINNEKE lends support

to the view that the ROYAL COMMISSIONS ACT

is not intended to make exhaustive provision

in relation to the position of witnesses

at and evidence given before a commission

when the commission has the duel character

of a State and Commonwealth Commission.

In other words, Your Honours, those who have the duty of attempting, loyally, to interpret the views of this Court and applying it in the interest of their clients may say, in relation to this case, that the Court, as it is entitled to do and

occassionally does,to some extent changed its

minds slightly and said, "Well, we did not mean quite what we were taken to have been saying on

the last occasion."

Now, Your Honours, the only point I am seeking

to make, with the greatest of respect, is that it

simply cannot be asserted that in most cases

negligence will be clear but the possibility of

a variety of different arguments being put in defence

is obvious and that most of them are going to

involve the court in one way or another. May

I instance, Your Honours, the ways in which it

may be said that counsel could be negligent - the

variety is obviously endless - but it may be said

that counsel failed to call witnesses, that counsel

ClT52/l/MB	195	11/2/88
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was unprepared, did not know the law and the facts,

that counsel asked too many, too few, or the wrong

questions, that legal points were not argued, that

there was a failure to object to opposing evidence,

that there was a failure to object that the tribunal

in this case was partial or biased or interested in

some way. It may conceivably be said that the

barrister was too good and won a case that should

not have been won which resulted in the opposition being forced to take the point on appeal, where it

was lost on appeal causing great damage and expense

thereby to the client. Is it to be said that

counsel was liable to the lay client of counsel's

opponent? Is it to be said that counsel, by being

so bad caused the truth to emerge in the course

of the trial?

Now, Your Honours, when one looks at these

possibilities the position that one will find in

relation to the tribunal is that the example given -

may be that~ magistrate always accepts the

prosecution evidence - where points of law are concerned

one may find that the judge already knows the law

and has most firmly fixed views on it and had the

point been raised would have given no attention to

it at all.

(Continued on page 197)

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MR CHARLES (continuing):  The failure to call evidence, let

us say, of damage may have had absolutely

no impact on the action at all. Suppose, for

example, that after an action in which a client

has failed, in terms of obvious result because

there was no evidence of damage given, and

suppose that the judge, in the course of judgment,

said, "There was no evidence of damage and

therefore I dismiss the claim"; and suppose,

afterwards, that both counsel have a discussion

together with the judge in which the counsel who has

lost makes some distraught remark about the

appalling negligence which resulted in the

defeat of his counsel and suppose, as Your Honour

Justice Deane put this morning, that the judge

says, "My dear so-and-so, do not worry yourself

because, in fact, I had totally disbelieved

the plaintiff on the evidence given in relation

to negligence so there would, in any event,

have been a failure of this claim."

Suppose, Your Honours, that so far as

appellate courts are concerned, the judges

in question receive, as may be the case, no

assistance from counsel's arguments. It is

regularly said of some - I am certainly not

talking of this Court - appellate judges that
they maintain within the profession that they

receive no assistance from counsel's arguments.

Lord Diplock was said, from time to time, to make this assertion that he had never had his
mind once changed by counsel's argument.

Your Honours, what is to be said? How

is counsel to establish these matters? Is

counsel to seek to call, in the course of alleged

negligence in appellate proceedings, the judges who heard

the case? It is a possibly monstrous prospect that one might, in the course of one of these

very important cases which arise before this

Court, be faced with even the prospect of seeking

to call members of this Bench as witnesses

to give evidence on that question.

Your Honours, the question is what the

parties who are faced with proceedings of this

kind must do in relation to the evidence they
prepare and call in relation, particularly,

to the question of causation? The plaintiff

must establish that damage was caused by the

advocate's negligence and, in ordinary litigation,

one would contend the best method of producing

that would be to call the direct evidence,

namely, the tribunal to give evidence, of both

the allegedly negligent behaviour and its consequences.

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I drew to the Court's attention that that

matter had been referred to by Lord Morris in

RONDEL's case; it was also referred to by direct

extension by President McCarthy in REES V SINCLAIR

at pages 183 to 184 of the New Zealand Law Report.

Your Honours, as to the position in relation

to judges and juries: there is, at the present
time, a clearly established position that for

public policy reasons one may not call either a member of the jury to give evidence of what has occurred in relation to the jury's deliberations

and that a judge, certainly of a superior court,

may not be called to give evidence of matters

leading to the judge's conclusions.

So far as the jurors are concerned, Your Honours,

it is said that it would be a mischievous intrusion

into the jury's deliberations and their essential

secrecy to call them, even to go out and search

out to examine members of the jury and find
out what their views were and, certainly, to

publish them. It is said that it would inhibit

the free expression of their views in the jury

room and it would, ultimately, tend to bring

the system of trial by jury to an end. Some

recent authorities which lead to that conclusion,

Your Honours: BOSTON V W.S. BAGSHAW & SONS,

(1966) 1 WLR 1135.- it is a case which is noted at

that page; RE MATTHEWS AND FORD, (1973) VR 199,
in particular at pages 209 to 210, and the last
of them, Your Honours, is REG V GALLAGHER,

(1986) VR 219 at page 249.

(Continued on page 199)

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MR CHARLES (continuing):  The last case, Your Honours,

involved the trial that proceeded before the

Chief Judge of the county court in which the jury

were kept out for a long time, a number of days

that I think exceeded 10 in the course of their
deliberations, and ultimately came in with a

verdict of guilty and the court ultimately

concluded that undue pressure had been placed on
the jury by that process but, in the course of

it, an attempt was made to tender, on behalf of

the accused appellant, an affidavit by a juror

relating to the pressure that had been brought

about by this and the affidavit was rejected.

Of those cases, Your Honours, possibly the

most extreme is BOSTON V BAGSHAW. If I may take
the Court very briefly to that because the

circumstance are intriguing involving, as they

do, the attempt to produce an affidavit from each

of 12 jurors who all said that the result that

had been arrived at in court was not the result that

they had intended. It was a claim in defamation
where the jury had been asked a number of questions
and they had answered those questions but in
circumstances where they discovered from reading

the paper the next day that the consequence of

them was that the plaintiff had failed and none

of them had intended the plaintiff to fail.

The court very firmly refused to receive any

of these affidavits and declared in very strong

terms that they were wholly unprepared to accept

them at 1136. In the middle of the page,

Lord Denning said:

To my mind it is settled as well as

anything can be that it is not open to the
court to receive any such evidence as this.

Once a jury have given their verdict, and

it has been accepted by the judge, and they

have been discharged, they are not at liberty

to say they meant something different.

In ELLIS V DEHEER, Bankes LJ said that "When

a verdict is delivered in the sight and hearing

of all the jury without protest, their assent
to it is conclusively inferred"; Atkin LJ

said that there was a general rule

"that the court does not admit evidence of a juryman as to what took place in the

jury room, either by way of explanation of

the grounds upon which the verdict was given, or by way of statement as to what he believed

its effect would be."

The reasons are twofold: first, to secure the finality of decisions arrived at by the

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jury; secondly, to protect the jury

themselves and to prevent them being exposed

to pressure or inducement to explain or alter

their views.

Your Honours, that is not entirely the end

of the process because there is authority in

New South Wales in the case of MACKAY V ELIAS,

(1928) 28 SR(NSW)340. It is a decision of

Chief Justice Street and at page 344, in the

middle of the page, Your Honours, His Honour

said:

There is no rule of law or of practice, and

there is no principle that I know of, to prevent

a juryman from being a witnes as to relevant

facts, and the cases of RV ER and MANLEY

V SHAW show that a juryman wr	s personally
acquainted with any material	ticular fact
may be sworn as a witness int	case without

any interference with his right subsequently

to adjudicate as a juryman.

And following. Now that suggested, in some

circumstances, that jurymen may give evidence

although what His Honour said may well be limited,

say, to talking of an event which has happene~

possibly as an approach that has been made to the

jurymen which was wrong.

MASON CJ: Is there any inconsistency between what is said

here and what was said in BOSTON?

MR CHARLES: I do not seek to say so, Your Honour. I am

simply making the point that where it is not a

matter of the jury's deliberations that the juryrran
may give evidence. In 1967, I think it is, the
Victorian JURIES ACT was passed and I have a note,

Your Honours, that there is now a section 69A in

the Victorian JURIES ACT which, by section 69A(l),

makes it an offence to publish statements made

during jury deliberations that	a person must not publish to the public any
statements made, opinions expressed, arguments
advanced or votes cast in the course of
deliberations of a jury.

There is, however, a provision in section 69A(5)

that:

Nothing in this section prevents a person

who has been or is a member of a jury

disclosing to a Judge, a Court, a Board or

Commission, any information about the

deliberations of a jury or the investigation

by the police at the request of the Director of Public Prosecutions of any complaint about the deliberations of a jury.

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MR CHARLES (continuing): Now, Your Honours, that does not

appear to have the effect of permitting statements
to be made, it simply says that nothing in this

section prevents a person who has been, or is, a

member from disclosing to a judge or a court.

If there is an existing common law requirement

that jurors should not give evidence about these matters it would seem that this section does not

affect the position.

The position, nevertheless, remains,

Your Honours, that if it is a matter of public

policy that jurors should not be entitled to make

public what has occurred in the jury room, again

the question must be: if one is to permit the

investigation and detailed consideration of what

has occurred in early court proceedings to take

place in the course of suits for negligence against

barristers, the question must next be whether that

public policy rule, in relation to jurors, would

have to give way at the same time.

Now, Your Honours, in relation to judges the

position is also clear and that is that they may

not give evidence on public policy grounds of what

led to their conclusions.	The cases which lead
to that result, Your Honours:	REG V GAZZARD, (1858)
8 C & Pat page 595;	secondly, Your Honours,

DUKE OF BUCCLEUCH V METROPOLITAN BOARD OF WORKS,

(1872) 5 HL 418, and the leading passage of

is that of Baron Cleasby at page 433; in this

Court, Your Honours,HENNESSY V BROKEN HILL CO PTY LTD,

38 CLR 342, and in particular at page 349;	and
the most recent case, Your Honours, is
ZANATTA V McCLEARY, (1976) NSWLR 230.

If I may take the Court to the last case,

ZANATTA V McCLEARY. Your Honours that was a decision

of the Court of Appeal in New South Wales which

arose in these circumstances: that a plaintiff

had achieved a very small verdict in proceedings

before a district court judge at Deniliquin and

after the case was over the judge had had a

conversation, a private conversation, with the

legal adviser of one of the parties in the course

of which the judge had disclosed the means by which

he had arrived at his conclusion which indicated

both that he had taken into account irrelevant

matters and had also taken into account some medical

evidence which he had got from a source wholly

undisclosed at the trial.

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Now, in the proceedings before the New South Wales Court of Appeal evidence was tendered by

affidavit, on behalf of the plaintiff, of what

the judge had said to the parties and when that

was rejected Mr Shand, who appeared for the appellant,

indicated a desire to call the judge personally

to examine the judge as to what had been said.

(Continued on page 203)

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MR CHARLES (continuing): Your Honours, the passages to which

particular reference is made appear at page 233

where the Chief Justice, Sir Laurence Street, showed

that no authority had been found dealing with the

admissibility of evidence of statements made by a

judge after the end of a trial, and His Honour then

concluded that the statements were pure hearsay and

should not be admitted, and then referred to the

parties wanting to call the evidence of the judge,

and then, Your Honours, at page 234 His Honour said,

in the middle of the page, after referring to

HENNESSY's case:

Neither of these general statements, nor, for that matter, any other direct authority of which I am aware, resolves the question of whether oral evidence could be sought to

be elicited on this appeal from the judge

himself, not being a judge of a superior

court. But drawing upon such guidance as

is to be derived from the authorities, I am

of opinion that evidence cannot be adduced

from a judge seeking to establish how his

decision was reached, whether the line of
inquiry be directed to the admissibility of
the material before him, to the process of
reasoning which he adopted, to the weighing
by him of extraneous irrelevancies, or

otherwise to matters underlying his

adjudicative process. The correctness or

regularity of proceedings before him is not

examinable in the light of subjective evidence

from the judge who heard the case. There are
in my view strong considerations of public
policy in denying to any party the freedom
to elicit from a judge evidence of this

character. Nor is it without significance

that no such case can be found where such

evidence has been tendered.

Mr Justice Samuels, Your Honours, arrived at the same

conclusion, in particular His Honour deals with the

matter at pages 238 to 239 and His Honour says at

the top of page 239, after reference to THE DUKE

OF BUCCLEUCH's case, that:

The principle is this:  A judge of a court

of record cannot be compelled to testify to
the considerations which led him to his
decision, or to the manner in which he

exercised his judicial powers.

Your Honours, Mr Justice Mahoney agreed at pages 240

to 241. Now, Your Honours, that leaves the

position - I may say, Your Honours, that when one comes to the American position, which I will deal

shortly with later, it appears that there is no like

reason in American courts why an American judge may

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not be called. There is a comparatively recent
decision of the Supreme Court saying that in third

party litigation a judge might be called to give

evidence.

Now, Your Honours, if the advocate can be sued,

the question is obviously going to arise, in the light
of the difficulties I hope I have indicated to the

Court of causation, and the parties are bound to want

to call one or other, either because the plaintiff

knows perfectly well, from a conversation had, that

he or she would have succeeded, had a particular line

of questioning not been asked, or, possibly more often,

because the barrister knows that the judge was well

aware of a particular line of authority and knew

the judge's views on the question. The parties
are going to want to call the judge and at that stage
the courts will have to consider, we would say, anew,

in the light of the abandonment of one public policy,

the question of whether a second public policy can be

invaded to ensure that the defendants in this case

are given proper justice in accordance with that

necessary public policy.	Now, Your Honours, there
are three possibilities.

(Continued on page 205)

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MR CHARLES (continuing):  Assume that the courts decide

that judges may be called to give evidence. As

Baron Cleasby pointed out in the DUKE OF BUCCLEUCH's

case, there are no obvious limits to the
cross-examination that might occur. Contemplate,
for example, a cross-examination in which the
barrister for one party says to the judge in the

witness box, "Look, the fact was, was it not, that

you did not like my client, you did not listen

to any questions asked on his behalf and you had

made your mind up from the time the other party

first opened that party's case". And the judge

will be expected, no doubt, to give an appropriate

series of answers to those questions. Or, suppose,

that the questions may be asked of the judge, "Well,

now your experience at the bar was in criminal

law, this was a banking case and the fact is that

you know nothing about banking law, is it not?".

And if, as one would hope,the judge searched very
vigorously, that in trying the case the judge was
now well aware of banking law, one will find the

judge being put through a viva on oath by

cross-examing counsel.

Or consider possibly, Your Honours, that a

judge who has been a member of a Court of Appeal

has been called to give evidence in like proceedings

and whose notes tail off after lunch each day, one

might find questions being asked in cross-examination

of why it was that the judge did not seem to have

picked up the arguments put after lunch each day

and what has he been having for lunch eacy day.

Now, Your Honours, it is difficult to imagine the

harm that would follow from possibilities of that

kind and one concludes that it is unlikely that
the courts will extend the removal of the public
policy immunity to permitting judges, or for that

matter juries, to be put into the witness box.

And one then comtemplates whether the courts will

allow other evidence to be given of the known

preferences of a judge or of the magistrate as

to whether - can one call a group of barristers

to say that that magistrate simply has never been

known to reject police evidence1 Can one call

evidence from another judge of the supreme court to

say that he knows perfectly well that Mr Justice X

is an expert on this field and would have been

very well aware both of section 6DD of the

COMMISSIONERS ACT or of some other area of the law.

Now if one cannot even call evidence of that

kind one may be left to the situation where one

simply has to try the tossing of the coin that

is involved in cases like CHAPLIN V HICKS, but is

it going to be possible in any event to avoid

the sort of speculation which must necessarily

be brought about as to why court came to a particular

conclusion. Now, Your Honours, in the cases which

ClTSl/1/SR	205	11/2/88
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are referred to in DEMARCO V UNGARO it will be

found that reference is there made to this problem.

If I may take the Court briefly to that case: the

Court will recall that DEMARCO V UNGARO is reported

at 95 DLR 3d, 385 and it is the case in which

there is reference made to the case to which

Your Honour Justice Deane drew my attention,

LESLIE V BALL, at page 391. The arrival of a

potential for suit against advocates does not seem

to have caused an explosion of interest in Canada

at that stage, Your Honours, because so far as one

can gather the only other case referred to on

this subject before something like 1977 was

WADE V BALL which is referred to near the bottom

of page 393. And the reference is to a citation

which I am unable to assist the Court with, UCCP

of 1870 . It may well be that it is the same

Ball who was the litigant in LESLIE V BALL, but

Your Honours will see that Mr Justice Hagarty

has now become Chief Justice and at the bottom of

page 393, this passage appears:

(Continued on page 207)

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MR CHARLES (continuing):

It must be borne in mind that, before these defendants can be made liable for the amount

sought to be recovered in WADE V HOYT, it

must be found, with reasonable clearness,

that but for the alleged neglect of the

attorney, such amount would have been

recovered. Practically, such a suit as the

present may involve the trying over again of

WADE V HOYT. This cannot be avoided. If

there were any reason why the plaintiff did

not or could not have recovered in the former

suit, if the missing evidence had been

forthcoming, the same defence must apply here

as a reason for not fastening on the

attorneys damages which perhaps in no case

were recoverable in the former suit.

Now, that would seem to suggest to Your Honours that

His Honour was there contemplating that any reason

that might have existed for liability not having been

made good would be permitted to be given in evidence,

including such reasons as the deliberations of the

tribunal might have permitted, in other "WOrds to have been

put before the Court. Your Honours, assuming that

one may not call evidence, either from the tribunal

or about the tribunal's deliberations and one is

left to speculate, one would have thought that it is

a high likelihood that in a variety of cases a result

in proceedings taken against an advocate will result in

a finding by the jury that has no relation

to what actually took place in the court at all,

which is based entirely on the prejudices of biases

of the new jury or the new tribunal about litigation.

My friends have both said how unfortunate it would

be if plaintiffs were denied a right to bring

proceedings and the ill feelings that will follow

if they are denied a proper remedy in the courts. One

would have thought, Your Honours, that if one is left

with the possibility of actions for negligence against

advocates in which most of the most relevant evidence

of causation is not entitled to be brought, one will

substitute an entirely new set of outraged defendants

for those who have been denied proceedings in the last

situation.

The grounds that we have been seeking to argue

in relation to the public policy immunity thus far,

have not related really with specificity to the

position of the barrister. They relate to the more

general question of the administration of justice as

a whole. That is what we say is the prior ground,

the better ground on which, if it is to be maintained,

the public policy should stand. As to the remaining

grounds, if I may identify them, they do relate much

more precisely to the position of the barrister;

they involve the retring of litigation and its

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prolongation. That certainly is more general than

simply the position of the barrister. But then the

independent role of the advocate and the need for

the advocate to be fearless; next, the cab-rank

principle; and finally, the advocate would be forced

to take every point, and succinctness will disappear

if the ourt does not think it has already gone.

Your Honours, I do not propose to take the Court to

RONDEL V WORSLEY, SAIF ALI, REES V SINCLAIR, and

FELDMAN and the others cases which lead to this

conclusion. The Court will, of course, in due time

turn to the judgments for themselves, but may I add

a reference to what Lord Salmon said in the Court

of Appeal in RONDEL V WORSLEY? Lord Justice Salmon's

words appear in (1967) 1 QB 443 at pages 514 to 526.

It is a judgment which is much referred to in the

various judgments of the House of Lords.	Your Honours,
firstly as to the cab-rank principle,	may I inform

the Court that that principle is very much alive and

well and living in Melbourne, in so far as any doubt may

be_ thought to have been cast on it yesterday.

(Continued on page 209)

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MR CHARLES (continuing):  I should say I do not understand

my friend, Dr Pannam, to have really denied the

existence of the principle. I took him to be saying

that the occasions for its operation were now much less frequent because there was no such thing as a

dock brief in Melbourne. Be that as it may,

certainly our understanding is that the cab-rank

principle remains very firmly to the forefront of

the barrister's practice,and not only that but it
is very vigorously insisted upon to those who arrive

to read at the bar in Melbourne and the rule is

regularly enforced.

Now, the fact remains that the unreasonable, the cantankerous and the unpleasant and the litigious

client - and there are a few of them - are entitled

to counsel of their choice and so far as the relevant

disciplinary committess in Melbourne are able to

ascertain, they get counsel of their choice. Now,

Your Honours, we would submit that that is an excellent

rule,that it is very much in the public interest and

it is difficult to see how that rule can survive

unscathed, if the cantankerous client who is

threatening proceedings is to be permitted to sue.

It may be that the rule could survive in some other altered or distorted form but our basic submission

is that it is difficult to see how it can remain

unscathed.

Now, it has been put, Your Honours, that the

barrister as a professional is no different frcm

an engineer or a surgeon. We say that there are

two basic reasons why a barrister is different. The first of them is the simple statement that

the barrister owes an obligation to the court

which will frequently conflict with that owed to

the client. We say, Your Honours, that the obligation

of the architect is not divided in the same way.

The obligation of the architect is to produce,

at the request of a client, a building according to the demands of his client which will stand up	and which will meet the considerations of beauty
and character that the client desires. But, basically,
there is no conflict of anything like the kind that arises in the case of the barrister.

Now, secondly, Your Honours, we say that the

advocate is engaged in an adversary procedure in

which, inevitably, when a matter goes to court there

will almost invariably be a loser. Now, many losers

are satisfied with the efforts of their advocates, having seen the amount of time and the devotion to

duty that are taken but, as Lord Pearce said.

Your Honours, in RONDEL's case at page 270:

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The loser naturally has a tendency to believe

and an interest in maintaining that there has

been an injustice.

Now, one obvious difference with the surgeon and the

architect and the engineer is usually, one hopes

normally, they do not have disasters, they do not
have a client who suffers damage as opposed to the
50 per cent of advocates who do. Next, Your Honours -

and I hope I will not be taken as pursuing a

flood gates argument because that is not my intention

at all - convicted persons regularly proclaim their

innocence. It is unconnnon to find a convicted person

who accepts regularly that that person actually· was· guilty.

Not infrequently convicted persons assert that they

are in gaol because the legal process m::L carried

and often because they had incompetent c1unsel.

Now, I have put to Your Honours the unfortunate

consequences that could follow if one found the

person convicted ultimately brought to this Court,

taking proceedings in a variety of different ways

against a variety of different advocates and

witnesses.

Now, it is difficult to believe, Your Honours,

that barristers, after experiences of having been taken

through the court on one or two juicy negligence

actions against one or other of their number, would

regularly discard points that were of doubtful
arguability, would refrain from calling witnesses
that the client insisted upon, would refrain from

lines of cross-examination the determined client

wanted pursued. It is not a matter that we put at

the forefront of our argument, Your Honours, but we

would say that it would tend to the lengthening of

litigation. It has been put that compulsory

insurance is a matter which rarely takes away the

potential for harm here. Compulsory insurance,

Your Honours, applies in Victoria.

(Continued on page 211)

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MR CHARLES (continuing):  As we understand it it does not

yet apply in the bars of Sydney or Brisbane.

A substantial percentage of the barristers in

each case are, of course, insured, but it is

not compulsory. Even so, Your Honours, insurance

simply removes the financial consequences of

the disaster in that particular case. Barristers

depend, in a somewhat insecure existence, on

their reputation and their known ability for

the conduct of cases. It would not require

more than one or two well-publicized disasters

for them at least to fear that their reputation

was destroyed and it is that, we would submit,

rather than the consequence of the insurance

refund, which will bring about the consequences

the rule seeks to avoid.

Your Honours, reference has been made to

Canada and to what my friend, Mr Heerey, in

his notes of argument, put this morning as a

very comparable society. If my friend means

that Ontario is a country mainly of caucasion

population with an arguably comparable climate,

we can understand his comments; all we doubt

is relevance. We would submit, Your Honours,

that there is no evidence before this Court

which would assist it to the conclusion that

in relation to matters of law in relation to

the legal profession and the way it operates,
in relation to the number of lawyers in the

community, the number of claims made against

them, that there is any evidence to justify

any conclusions about similarity or otherwise.

The only evidence one can see from DEMARCO V

UNGARO is that after the matter is first raised

in LESLIE V BALL, one of the cases considered
in something like 1870, and then one finds the

case being raised in 1977 in, I think it is

BANKS V REES, or some case of that kind. It

is referred to, Your Honours, by Mr Justice Krever

near the end of His Honour's judgment. It is

a case which was decided, shortly after RONDEL

V WORSLEY and where the judge in question showed

a willingness to follow RONDEL's case. Therefore,

one finds in 1979 Mr Justice Krever dealing

with the question whether or not the immunity

of counsel still applies in Ontario. One simply

has no evidence at all, Your Honours, of the

view that that profession has taken. Whether

people forgot, after those very early decisions,

that there was a potential for suit against

advocates - no one seems to have taken those
proceedings, there is certainly no evidence

of that kind.

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In other words, Your Honours, one really has no

assistance to be gained from the position in

Ontario and there is certainly no evidence of

anything since 1979 to indicate what has happened

in the consequence of Mr Justice Krever's decision

at that time; whether many actions have been

brought and fought; how that has affected the

conduct of cases by the profession.

There is a decision, Your Honours, in Alberta, in RE LAZARANKO AND LAW SOCIETY OF ALBERTA,

(1983) 4 DLR (4th) 389 at pages 399 to page 403,

which indicates that in Alberta, at least, the rule in MUNSTER V LAMB is applied and the rule

in RONDEL V WORSLEY is regarded as good law.

Your Honours, may I turn to the immunity

in the United States and deal with that briefly.

A distinction has to be drawn between immunity

and civil and criminal matters; it seems,

Your Honours, that in criminal cases, for public

policy reasons similar to those applicable in

England and based on the common law, both judges

and prosecutors are immune from liability.

That is to be found both in IMBLER V PACHTMAN,

424 US 409 at pages 422 to 423, and in FERRI

V ACKERMAN, 444 US 193 at pages 202 to 204.

Your Honours, defence counsel are not immune

from liability but the principle appears to

be that, in the case of defence counsel, their

principal duty - higher than their duty to the

court - is their duty to serve the interests

of their client.

(Continued on page 213)

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MR CHARLES (continuing): And, Your Honours, that appears

in FERRI V ACKERMAN, 444 US 193, at page 204;

and we would also add TOWER V GLOVER, 467 US 914,

at pages 920 to 923. Your Honours, some care has

to be taken in dealing with these provisions

because they are somewhat bedevilled by

constitutional guarantees and provisions of the to as 42 USC section 1983, it is provided that:

Any person under color of State law who

acts to deprive another of constitutional

rights is to be liable in a suit for damages - And it would seem, Your Honours, from TOWER V GLOVER,

the case last referred to, that were it not for
that provision public defenders would be entitled

to the same immunity as barristers.

It appears to be assumed, Your Honours, that

no immunity exists for counsel in civil matters

and possibly because the principle is that the
duty of the counsel is to represent the interests

of the client, again, above the interests owed

to the court. And I refer again to FERRI V

ACKERMAN, 444 US 193, at 204. That judges are

not immune from giving evidence, Your Honours,

is found in the case of DENNIS V SPARKS - we have

a copy here for the Court - 449 US 24.

Your Honours, in the report I have, which

I hope is the same as that held by the Court, at the page which is numbered 191, at the bottom of the page in paragraph (6) and which would appear

in page 30 of 449 US, Justice White said:

It is urged that if petitioner and other

private co-conspirators of the judge - I should say it was a case where there was an allegation

of conspiracy against the judge, the judge was

immune from suit because of the provisions of

section 1983, the others were not, and it was

sought to call him as a witness.

if a case such as this is to go to trial,

the charge of conspiracy and judicial

corruption will necessarily be aired and

decided, the consequence being that the judge,

though not a party and immune from liability,

will be heavily involved, very likely as a

witness forced to testify about and defend

his judicial conduct. It is true that, based

on the Speech or Debate Clause, we have held
that Members of Congress need not respond

to questions about their legislative acts;

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and, in general, the scope of state

legislative immunity for purposes of

§ 1983 has been patterned after immunity

under the Speech or Debate Clause.

SUPREME COURT OF VIRGINIA V CONSUMERS UNION.

But there is no similar constitutionally

based privilege immunizing judges from being

required to testify about their judicial

conduct in third-party litigation-. Nor has

any demonstration been made that historically

the doctrine of judicial immunity not only

protected the judge from liability but also

excused him from responding as a witness when

his co-conspirators are sued. Even if the

judge were excused from testifying, it would

not follow that actions against private

parties must be dismissed.

Of course, testifying takes time and

energy that otherwise might be devoted to

judicial duties; and, if cases such as this

survive initial challenge and go to trial,

the judge's integrity and that of the judicial

process may be a stake in such cases. But

judicial immunity was not designed to insulate

the judiciary from all aspects of public

accountability.

(Continued on page 215)

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MR CHARLES (continuing):  Your Honours, we would submit that

it is difficult to gain very much assistance from

the American law. It is clear that the rule in

MUNSTER V LAMB applies. One of the matters that

was referred to by my learned friend, Dr Pannam,
yesterday was an article by two gentlemen,

Messrs Otto Kaus and Ronald Mallen, which is an

extract from volume 21 of the University of

California Los Angeles Law Review, and which deals

with the misguiding hand of counsel, reflections on

criminal malpractice, and described aptly enough as

"a sleeping dog".

Now, Your Honours, the footnote on page 1192

refers to the English cases and the immunity in

RONDEL V WORSLEY. Then, Your Honours, the Court

will see on page 1193, near the bottom of the page,

that it is said, in the course of the note, that:

Subject to proof by more intensive
research, it seems fair to state that the

American law of legal malpractice has not

been shaped by charges of courtroom

incompetence, but rather by bungling conrrnitted

at the office - or wherever it is that lawyers

permit statutory deadlines to lapse or

otherwise neglect their clients' affairs.

The proposition that blunders conrrnitted in

the course of actual litigation are also actionable appears to have been accepted

as a matter of course. The "paperwork/

litigation" distinction which today inrrnunizes

the English trial lawyer, civil or criminal,
has never gained a foothold here. Of course,

the "civil/criminal" dichotomy, which is what

this article is all about, has never excited

any court on either side of the Atlantic.

The authors go on to say that:

It is interesting to speculate what direction

American law of legal malpractice would have	taken if a larger percentage of the early
cases had focused on alleged negligence in the course of litigation, civil or criminal.
The historical fact is that when an important
issue involving the protection of lawyers from
civil charges arising out of things said or
done in the course of litigation did arise here, we accepted English precedents with
warm frontier hospitaility. MUNSTER V LAMB,
which enshrines counsel's more or less
absolute privilege to defame, is good law from the banks of the Thames to the shores of
Lake Havasu.

At the last two lines:

C1T62/l/HS	215	11/2/88
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Yet, as far as England is concerned, the

advocate's inununity from charges of malpractice

is demanded by the very same policy

considerations which spawned the privilege

to defame.

Then, Your Honours, in the middle of the page:

Had charges of legal malpractice conunitted

in the actual course of litigation been

more than an occasional problem during the
early years of American law, there is no

reason to suppose that Yankee ingenuity would

have failed to anticipate the rationale of

RONDEL V WORSLEY, that an advocate - civil

or criminal - simply cannot fulfill his
function as such and as an officer of the court,

under the Damocles' sword of 2 malpractice

charge.

Now, Your Honours, there is a further matter which

is referred to earlier in the same article and which

may bear on why it is that in American law a

different path has been followed.	As the article
notes at page 1193,	Chief Justice Burger

had said that, in relation to American advocates:

From one third to one half of the lawyers

who appear in the serious cases are not

really qualified to render fully adequate·

representation.

Chief Justice Burger's successor on the United States
Court of Appeals, Chief Judge Bazelon, had also said

that:

Some trial counsel are "walking

violations of the sixth amendment".

Now, Your Honours, we would say that the conditions

in America indicate different training, different

conditions of practice. It is, as we understand it,

conunon practice for chere to be contingency fees

charged by plaintiff's counsel. Now, I have not heard

my friends arguing that because contingency fees have

been in use for a very long time that the conclusion

should be drawn that they should be made available

here too.

(Continued on page 217)

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MR CHARLES (continuing):  The standard reason why they should

not be accepted here remains, we would say, as

good as it always was. It may be that lower standards

apply in some parts of the United States, maybe

there are differing methods of advocacy, less use

of court time, far more on the trial brief, maybe

constitutional guarantees have intruded in relation

to these matters. Maybe it is the willingness

of judges to give evidence; maybe the fact that
judges are frequently elected, frequently regarded
with less respect than they are in this country.

For a variety of different reasons, Your Honours, we would say that no assistance can be gained

from looking at the American situation and drawing
deductions from it as to what may, or may not,

be a proper path to follow in this country.

And we would submit, Your Honours, that one

matter that one cannot fail to note when looking

at the path of authority is the unanimity which

has been seen right through the lists of the eminent

judges who have considered the question of the

immunity of counsel from SWINFEN V LORD CHELMSFORD,

going back to Lord Kenyon in FELL V BROWN, down
to the present time where one finds the first
divergent path being taken, that of Mr Justice Marks
in this case, who is the first, if I may so, score

that those who seek to bring liability home to

the advocates have achieved. We would say,

Your Honours, that the unanimity of view is something

which cannot fail to attract attention on the question
of whether or not those views justify acceptance

in this present day.

There are a very few short matters, Your Honours,

that I want to add in conclusion. My friend,

Dr Pannam, in his written notes of argument, said at point 19 in relation, I take it, to the five matters which are said, in his argument, to be

the basis of the common law immunity - my friend

put it: 

In this case none of the identified grounds

of public policy are present in any event. Here a legal point which went to the heart

of the prosecution was missed.

Your Honours, with respect, that point simply cannot be made good and on close examination it

will be found that if one looks at the conflict

of duties owed to the client and to the court,

and if one assumes for the moment that counsel

gave consideration to the question and decided

not to take the point, there is the first question:

the conflict of duties.

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Secondly, prolixity and impairment of judgment. Assuming, for the moment, that counsel saw the

point and decided not to take it, the consequence

of an immunity action would have been that they would have been left with no alternative but to

take it. As to the undesirability of relitigation

and collateral attacks, of course, that is what

is occurring in this present case. As to the

a claim and the absolute privilege in respect of

cab-rank principle, if the immunity goes can the

cab-rank principle survive? And, finally,

what is said in court,· · when this matter is

brought finally before the supreme court for hearing

on behalf of the plaintiffs, the appellants in

this Court, will one find Mr Justice Kaye being

called to give evidence on behalf of the defendants

as to why His Honour, after the point was argued

by eminent counsel on behalf of the Giannarellis

how it was that His Honour came to arrive at a

conclusion different from that arrived at in this

Court.

Your Honours, as to the point made in paragraph 18

in relation to RE KNOWLES and STRANGE V HYBINETT,

our answer would simply be that there are a number
of cases where the court, in extreme circumstances,

contemplates and permits the re-examination of

earlier cases:  KNOWLES is one - an extremely

unfortunate case - where there had been a denial

of justice in a criminal case with very serious

consequences. Now, Your Honours, public policy

is a matter where the court is engaged in a balancing
exercise and it must be at the very root of public

policy that the court, in the first case, will

confine in the most careful parameters the area

of any immunity which may be granted and will make

the most careful attempt to ensure that no wider

immunity is granted than is necessary for the

administration of justice.

We would say that RE KNOWLES is an examination

of a criminal case in which what is, in effect,
an extension of the appellate process is made available
to an accused person to avoid the very serious

consequences of a real miscarriage of justice for

a person who is in jail.

(Continued on page 219)

ClT63/2/AC	218	11/2/88
Giannarelli(2)

MR CHARLES (continuing):  In the case of STRANGE V HYBINETT,

next referred to on page 7 of my friend's notes of

argument, that, we would say, is simply a clear

example of the appellate process working with the

consequence that a new trial is brought about; a case

where it was said that a barrister had used extreme

and excessive language in the course of a speech to
the jury in a civil action in Wangaratta and where

the court,in the appeal,said that in no circumstances

there was a risk that the jury might have been

distracted from their proper task and ordered a new

trial. It is simple matter, Your Honours, within the

appellate process.

The suggestion made in paragraph 22 on page 8

that the removal of the immunity may tend to improve

the standard of barristers' work:  I referred the

Court to the educative and qualifying process that the profession and the courts insist upon in an

attempt to ensure that barristers work and advocates

work to an extremely high standard. We would contend

that the removal of the immunity, the possibility of actions being taken to the contrary, would tend to - the removal of succinct advocacy; would tend to the

taking of the extra point, the asking of questions,

the asking of questions which take one too far, where
the wrong answer is elicited; that if the control of
the case is taken away from the advocate and left to

the control of the client, then standards will fall

and clients will frequently rue the consequences.

Now, Your Honours, in relation to my friend,

Mr Heerey's, arguments - my friend, Mr Heerey, makes

the same point at paragraph 34. We have made the

answer to it and I think the only other matter I

wanted to draw to the Court's attention I had done in

the opening remarks I made to the Court before lunch;

that it is not the law looking after its own; if

immunity is removed, many lawyers may have cause to

be thankful for the arrival of a new cause of action.

Indeed, if the immunity, Your Honours, were nowadays

to be imposed upon the American legal system, one can

imagine the screams of outrange that would come from

the very many lawyers who specialize in malpractice

litigation and make very large salaries from it.

Your Honours, unless there is some further matter I

have not covered, those are our submissions.

MASON CJ: Thank you, Mr Charles: Yes, Dr Pannam.

MR PANNAM:  If the Court pleases. I deal with the matters that

were last dealt with by my learned friend relating

to public policy, and in particular the Pandora's box
or the chamber of horrors that was developed at some

length. There is a very short answer to that;

it is this:  even though the submissions that we put

to the Court in relation to solicitors and their

liaibility be taken as going no further than

establishing a responsibility for their negligent

ClT64/l/VH	219	11/2/88
Giannarelli(2)

conduct approaching the court door, nevertheless
there has never been any doubt at all, on the

19th century cases, that if a mistake was made by

a solicitor that produced an incorrect decision in

court, there would be liability and those matters

could be the subject of trial in a civil action.

Now, HATCH V LEWIS was an example of that; the

error out of court in not interviewing the witnesses

gave rise to the claim, and Your Honours have had

that case referred to you.

(Continued on page 221)

ClT64/2/VH	220	11/2/88
Giannarelli(2)
MR PANNAM (continuing):	COOK V	SWINFEN was an example of

that where in the context of divorce proceedings

orders were made that were later in effect, in

practical effect, set aside by an action against

the solicitor whose carelessness produced those orders that were not sufficient to satisfy what was the true measure of his client's claim. Now
if the chamber of horrors is not an answer to an
action brought by a solicitor in respect of

negligence that produces an adverse in-court

result, then what more powerful basis is to be

found for the suggestion of an immunity merely

because it is a barrister in court who makes the

mistake. So that you have the phenomenon that

if it is the solicitor who does not interfere with

the witnesses and does not get the proofs and

does not put them in counsel's brief and counsel

conducts the case, why then there can be civil

litigation, and there is no doubt about that based

on the 19th century authorities and no suggestion

that they are incorrect, that can investigate what

went on in-court and presumably you will not be

able to call the jurors as happened in HATCH V LEWIS,

or the judge, as my learned friend's submission

would have it. So that the parties to the civil

litigation involving claims against negligent

solicitors that produce the loss because of what

happens in court because of their out of court
negligence, then all of these supposedly powerful
policy considerations that stand in the way of
subjecting barristers to liability tend to disappear.

So that the short answer we would put to all of the

difficulties about the litigation that have been

developed at great length and with various permutations

and variations by our learned friend is that exactly

those same problems are faced in the context of

the admitted liability of solicitors for negligence

in relation to their actions which produce an

in-court adverse result. And that is the first point.

The second point is this. My learned friend

says, "Oh well, our argument does not involve the

denial of a duty. Of course there is a duty but

it cannot be called up in a civil action for damages".

And the way it can be called up, presumably,is by

disciplinary proceedings which in Victoria, as I
indicated to the Court during the course of our
submissions,is regulated by a statutory tribunal

created by the provisions of Par·t 2A of the Act.

(Continued on page 222)

ClT65/l/SR 221 11/2/88

MR PANNAM (continuing):  Now in evaluating, for disciplinary

reasons, the deficiencies·: i.:hat are alleged against
counsel, presumably that statutory tribunal will

look at these matters that are said to be so

disruptive of the proper administration of justice

and will have to do the best they can about the alleged incompetence of counsel, turning up the court drunk, not producing the right authorities,

not taking the point and so on. Now, it is not

contended that it is not an entirely proper

investigation for a body constituted under _Part IIA

of the Act to look at for disciplinary purposes but

it said that somehow when you go outside the

disciplinary tribunal and you cross William Street

and you go to the Supreme Court of Victoria, that

a public policy or a group of them intercept the

path of the litigant as a complainant before the

disciplinary tribunal these matters can be ventilated

but not in the context of a civil proceeding in the

Supreme Court of Victoria. In our respectful submission, the concession that there is a duty

that can be called up in that way really is

destructive of the argument that there should be

an immunity when one goes to court.

Now, the third point as to these public policy

matters that we referred and raised, it was not
dealt with by our learned friends and we referred

to during the course of developing our submissions

is this. Assume that a group of barristers at the

Victorian bar decided that they did not like the

doctrine of RONDEL V WORSLEY at all and that from

thenceforth they would make it clear to all solicitors

who instructed them and clients on whose behalf they

appeared that they were perfectly prepared to give

up what common law immunity they had as a matter of

tort liability or under an implied term of a contract

that might get into some problem and they would

expressly agree - I put it inaccurately. They

enter into an express agreement that they undertake

to be responsible for the consequences of any

carelessness that they can be held responsible for
in connection with the management of a case in

court.

Now, is it to be said that in the context of

a promise of that kind that the court will intervene

on grounds that such a contract is really disruptive

of the proper administration of justice and will

invalidate that promise and will refuse to lend its

aid to its enforcement? Now, that is a question,

of course, that cannot arise in England because there

is no contract and the realm of the law of tort is

slightly differ~nt, it is the question of whether

the law will re~ognize an immunity to a duty that

otherwise might arise.

ClT66/l/MB	222	11/2/88
Giannarelli(2)

MR PANNAM (continuing):  But it does not really answer the

question as to why a court will not observe

and enforce a promise given in those circumstances

to overcome an immunity that might otherwise

exist. In our respectful submission, it requires

far more compelling reasons to invalidate a

consentual contract of that kind than simply

to deny the existence of a duty at law that

might otherwise arise.

Your Honours, they are the three points in relation to the public policy aspects of

the argument that we desired to refer to by
way of reply. I refer the Court to just one

American case in response to Justice Deane's

question of me yesterday, a case called HELMBRECHT

V ST PAUL INSURANCE COMPANY, in the Supreme

Court of Wisconsin.- we have some copies of

that - which is, so far as we have been able

to determine, the only State court decision
that deals with the question of whether a judge

can be called to give evidence as to what happened

before him. It is a decision of the Supreme

Court of Wisconsin and, as Your Honours will
see at pages 125 to 126, in the left-hand column
of page 125, down towards the bottom, the passage

begins - I will not read it but I will direct

it to the Court's attention - and it ends at

page 126 in the right-hand column.

The Supreme Court of Wisconsin expresses

concern about the calling of a judge to give
evidence about what went on before him and,
in the end, as a result of the analysis of the
cause of action, holds that such evidence would

be irrelevant in any event because the criterion

is an objective one and the question is not

what a particular judge, with his particular

vaguaries, might or might not have done but

what a reasonable judge, in all the circumstances,

may have done. That decision, which is the	only one we have been able to find directly
on the point, together with the reference to the Californian Court of Appeal's decision on
page 125, in the right-hand column, is really
the only treatment in America right on the point and tends to indicate that the judge would not
be certainly compellable and it may be that the
evidence is not even admissible.

(Continued on page 224)

ClT67/l/SDL	223	11/2/88
Giannarelli(2)

MR PANNAM (continuing): Turning from those matters to the

matters of statutory construction, can we make

the following series of points in relation to our

learned friend's submissions: the first is that he

said that, "Well, it would be curious if the

liability of barristers was to be frozen in 1891
and the liability of solicitors was subject to

the ongoing development of the common law." And

he instanced but one example and he said, "Take

for example, the most recent development in the

law of liability of solicitors, namely, their

possible liability to third parties; and wouldn't

it be strange if barristers weren't and solicitors

were?" And the answer to that question, short,

if one goes to section 10(2) of the Act, it is

perfectly clear that the only relationship being

dealt with there is the relationship between

barrister and client and not between barrister

and a third party.

So that that question would be an open

question and it would not follow from my learned

friend's submission that a barrister might not

be liable to third parties.	We simply say it is
not foreclosed by the section.	The second point

relates to the argument that, well, really, all

section 10(2) did was to provide a statutory contract

between the barrister and the client and, of course,
the whole of that argument depends upon the
accuracy of my learned friend's submission that

as at 1891 the relationship between solicitor and

client that resulted in liability for negligence

was based upon contract. And he cited a list of

cases that he did not develop:  HOWELL V YOUNG,

SMITH V FOX, ROBERTSON V FLEMING and BEAN V WADE.

In our respectful submission, as at 1891,

it was perfectly clear, not that the liability

of a solicitor was based on contract but there

were two liabilities, one based on contract and

one based on tort and we desire only to refer to

the development of the analysis of the authorities

engaged in by Sir George Lush in MACPHERSON & KELLEY

V KEVIN J. PRUNTY & ASSOCIATES, (1983) 1 VR 573,

at pages 575 to 577, and in particular the reference

by Sir George Lush to a decision of the House of

Lords in 1844 in BROWN V BOORMAN which carries

the proposition and was not dealt with or cited by our learned friend that the House of Lords,

certainly two members of a house of three and

possible three have determined that there were

overlapping liabilities in contract and in tort.

And further, that each of the cases my learned

friend referred to to support his position did

not carry it, so that one if left with, at worst,

ClT68/l/ND 224 11/2/88

Giannarelli(2) (Continued on page 224A)

against us, the situation that the draftsman

in 1891 was dealing with a situation where it

was not clear whether there was only a liability

in contract and there may have been a liability

in tort. We would say it was clear there were

both but, at worst, against us, it is that

position.

(Continued on page 225)

ClT68/2/ND	224A	11/2/88
Giannarelli(2)

MR PANNAM (continuing): So that the submi ion that all that

was being done here was to create a statutory

contract and that was the foundation of liability,

in our respectful submission, is incorrect. And

what our learned friend's argument did not address

was that there was also a liability for negligence.

Now in that connection there is one other point.

Our learned friend said there was no such tort as

the tort of negligence in 1891, well may there was not under that name, but Mr Beven had written

a book on the subject of about 500 or 600 pages

in 1888 and it was clear that there was an action

on the case for negligent conduct and indeed had

been the subject of litigation for many hundreds

of years. And, in any event, the words in the

section are "for negligence", and not "in the tort

of negligence". And in our respectful submission,

our learned friend's argument about statutory

contract and that is, leaving defences open and

not dealing with questions of liability,simply

does not address the word "liable" and does not

address the word "negligence" in the subsection.

Because if there is one thing clear, it is that

that subsection was intended to have an operation
in relation to the imposition of liability for

some negligence and not just to create this

statutory contract leaving everything else at large.

Your Honours, there is only one other point

and it is related to the LESLIE V BALL point that

our learned friend did not embrace, if we could

deal with it because it was raised by both

Justice Deane and Your Honour the Chief Justice, and

as I understand it, it is this: that if one looks

at this section, one goes to the words used in

LESLIE V BALL and finds a remarkable similarity of

language. And when one looks at the facts of

LESLIE V BALL one finds a situation of a person practising as a barrister and as a solicitor and

the negligence really alleged against him was in

his capacity as a solicitor and he sought to rely

upon an immunity because the consequence of that

negligence was that he did not put an argument in

court when he was acting as counsel.

So that as I understand the point it is this,

that when one goes to the section and looks at the

decision on this argument one sees that the proper
analysis of the section is to say, it only deals
with the advocate in court who has also acted as

the attorney or solicitor out of court and really

only says this :

ClT69/l/SR	225	11/2/88
Giannarelli(2)

MR PANNAM (continuing): "Because you act as your own advocate

and you do not retain a barrister you will be liable

for everything that you would have otherwise been

liable for as a solicitor out of court." Now,

in our respectful submission that, certainly, was

the ratio decidendi of LESLIE V BALL but ao far as

the words of section 10(2) are concerned we make

the following submissions.

DEANE J: If you are addressing what I raised I thought it

helped you.

MR PANNAM:	What I was putting was a different point, I must have misunderstood it.
DEANE J:	I was directing attention on page 519 to the reference
"neglect as counsel".
MR PANNAM:	Well, if that was so, Your Honour, then I will

not develop the point I was about to develop which was a point against it because one of our answers to the point, as we understood it, was that both

judges, Mr Justice Hagarty and Mr Justice Adam Wilson,

really dealt with the two separate functions and said

there was liability in respect of both. Indeed, that was going to be the short answer to what we

thought was but was not the point.	Now I will not
develop it.	Your Honour, they are the submissions

we have to make in reply.

MASON CJ:	Yes, thank you, Dr Pannam.	Mr Heerey.
MR HEEREY:	If the Court pleases.	My learned friend,

Mr Charles, said that the legislators in 1891 did
not intend to abolish a public policy innnunity

to which they did not avert. That simply does not

accord with the record. It is clear from page 163

of the materials that - and as far as we are aware

and I am sure if it had been otherwise it would have

been pointed out to us - this is the only place

in the whole series of these debates where there

is any reference to a public policy justification

for the innnunity.

(Continued on page 227)

ClT70/l/MB	226	11/2/88
Giannarelli(2)

MR HEEREY (continuing): It is put at page 163 by Mr Wrixon,

who was an opponent of the bill, and he spoke that

the power and independence of the advocate - in essence,

it was a restatement of what is said to be the

classical public policy justification. It was then

followed by his amendment to remove the provision

which made barristers liable for negligence. If the

majority in that Parliament thought that there was

a public policy justification for innnunity or, at

any rate, thought that it ought to outweigh countervailing

possibilities and prevent any change of the law in

Victoria, here, surely, was the critical moment at

which that legislative intention would have been

put into effect.

BRENNAN J:  Mr Heerey, are we looking at this for the purposes

of construing a section of an Act, or are we looking
at it for the purpose of an historical exercise

designed to elicit the subjective thoughts of the

legislators?

MR HEEREY: 

It is prayed in aid as an aid to construction, Your Honour. The INTERPRETATION OF LEGISLATION ACT specifically

provides that it can be done.

BRENNAN J: 

Then how is it that we come to a critical point

of the debate which helps us understand, as a matter
of construction, the words of the section?

MR HEEREY:  It is put this way by the respondents. It is said

that Parliament would not have wanted to remove

an innnunity based on public policy when they did not

advert to the public policy issue. The short answer

is that they, in fact, did advert to it, and the

circumstances in which they did advert to it show

that that public policy argument was rejected, and

rely on the analogy in the law relating to contract that

the CODELFA case establishes that if there is one
exception to the rule that you cannot look at

negotiations to assist in the construction of a

contract, it perhaps lies in the situation where there

has been a term put forward and expressly rejected

in the parties before reaching their contract.

(Continued on page 228)

ClT71/l/VH	227	11/2/88
Giannarelli(2)

MR HEEREY (continuing):  Our primary argument, of course,

is that the plain words of the sections, as

Dr Pannam just said, speak of liability of barristers

in negligence; they cannot be cut down by reference

to any immunity which was not recognized at

the time but, if it said against us, "Well.

you cannot, as a matter of presumption, assume

that they would not want to remove this public

policy immunity", the short answer is that it
was adverted to and at a stage, as it turns

out, where the very - at this page the decision

is made, "Yes, there will be liability for barristers

in negligence despite what was argued on proper

policy grounds."

MASON CJ: Mr Heerey, I was going to say to you that I

hope the argument presented in this case is
not to be regarded as some sort of precedent

for, as it were, an open go at parliamentary

debates. So far we have generally taken the

view that we would look at second reading speeches,

in particular the second reading speech by the

responsible minister introducing the bill.

But this case seems to indicate that counsel

are of the view that anything that is said in

a parliamentary debate is something to which

we should have resort. That plainly is not

the case.

MR HEEREY:  The section of the Victorian Act, Your Honour,

is expressed in really much broader terms than

the Commonwealth Act and, read literally - - -

MASON CJ: So it is but the real question is what probative

value does it have? What light is it going to throw

on the question of construction? And the individual

expression of a view by a particular member

of Parliament is of no value unless it gives

some kind of insight, perhaps.

(Continued on page 229)

ClT72/l/SDL	228	MR.HEEREY,	11/2/88
Giannarelli(2)

MR HEEREY:  Yes, Your Honour, we would say the particular

passage we refer to here is that very thing because

it is the very decision on one part of the legislation

which is critical and shows a rejection of what

it said Parliament would have presumed. It

would be shutting our eyes to reality, in our

submission, if you looked at this legislation and

said: "Oh we 11, the common law held there was

an immunity on the ground of public policy and

therefore Parliament is presumed not to have

removed that immunity unless by express words or

necessary intendment."

Can we say as to the public policy grounds,

and particularly the reference to other jurisdictions,
that it perhaps bears out this comment that there

is nothing necessarily inherent in a civilized

system of justice in having some special protection

for those who appears as advocates. One might

say that you would expect to find in any civilized
system of justice a prohibition against bribery
of judicial officers and so forth but the point

is the Americans and Canadians seem to have survived

without it and it does not have any a priori

sanctity.

Another point we make about public policy

is that in this case we are dealing with Victoria

and if one considers public perception as relevant

to public policy one has to consider public
perception in the light of an express statutory

provision which gives barristers an express right to sue for their fees, and other provisions which

have the effect that they are required to carry

insurance.	So, one can reasonably credit to the public,
in our submission, this view:	"Well, if the English

think that an immunity for advocates is desirable

on public policy grounds that is a matter for them,

they know their own country best."

(Continued on page 230)

ClT73/l/AC	229	MR HEEREY, QC	11/2/87
Giannarelli(2)

MR HEEREY (continuing):  But it is clear that English

barristers are in a different position. They cannot

sue for their fees, there is no mention of negligence.

It is surely very odd that the position is so

one-sided here. Now, there was mention too of the

Canadian position. My learned friend said that there

was no evidence of how many people or how many lawyers

there were in Ontario. In fact there is. It appears

at page 405 of the judgment in DEMARCO V UNGARO.

It is a figure of some 12,000 legal practitioners

out of a community of about 8 million. So both

figures are roughly double what that would be in

Victoria, and to suggest that those cases which,

in the 1860s, and particularly LESLIE V BALL, to which

reference is made, DEMARCO V UNGARGO were forgotten,

really imputes a high degree of negligence indeed to

those 12,000 practitioners in Ontario in attending

to something which ~ffected them so directly.

One cannot get away from this conclusion, that if

there is something inherently unfair about barristers

being liable for negligence, if there is something

that distinguishes barristers from other professions,

and in particular that they are adversaries and they

lose 50 per cent of the time and they face problems

with convicted persons, obviously those considerations

must have applied in Ontario and the reason that we

would suggest for the unarguable fact that there did
not seem to be any actions of negligence at all in

Ontario was that to launch an action of negligence

against a lawyer you usually need another lawyer,

and that the very difficulties of proof and

causation, which have been lightly touched on,

would be firmly pointed out.

So if lawyers are unfairly to be made_ - put in

an unfairly vulnerable position, they do not seem to

have suffered unduly in that 100 years or so in

Ontario. The cab-rank principle, as we pointed out,

it clearly does not apply to solicitors, and if the

respondent is right the immunity applies to all

advocates in Victoria, whether barristers or solicitors,

and, in any event, if it is a matter of public

perception and public policy, surely the public can say,

"If the bar want to have an internal ethical rule

for their own convenience which they can change at

any time, or vary, that is their business, but why

should I be expected to trade off, as it were, the

right I would have to recover my loss from any

other incompetent professional who caused me loss~"

(Continued on page 231)

C1T74/1/HS	230	11/2/88
Giannarelli(2)

MR HEEREY (continuing):  On the question of the court innnunity

and the position of witnesses, we are not aware of

any authority, one way or the other, as to what would

happen if an expert witness who was contracted to

give evidence, turned up and gave it in a negligent

fashion, f'or example, if he was intoxicated and

simply could not remember the facts, with the result

that his evidence was entirely useless. We would submit

that there is no reason in principle why such an

action would not lie. It was clear at connnon law

that if you contracted with a person to give evidence

as an expert witness, and he did not appear at the

trial, you had an action for damages against him,

and that is YEATMAN V DEMPSEY.

It was equally clear at connnon law that if a

solicitor on your behalf retained a barrister to

appear at the trial and he did not turn up, there was

no action, and there is reference in RONDEL of that

specifically as being one of the areas within the

barristers' innnunity. So that is a pointer, in our

submission, to our argument that they are really

dealing with quite different things; different duties,

different obligations. They overlap certainly in

some respects, particularly in the absolute privilege

against a liability for defamation, but there is this

fundament difference that a barrister holds himself

out as an expert. He is paid and is entitled to be

paid and is entitled to be sued for his fees and
an ordinary witness and a judge and, for that matter,

police constables, are not.

The point about perjury is met, in our submission,

by the simply point that there is a very effective sanction against perjury, namely, the threat of

apprehension and criminal prosecution. There were

very detailed examples given of the difficulties which

arise by way of evidence, by way of causation, if

barristers could be sued for negligence. They might

well run across these special rules which protect

judges or jurors from giving evidence; that is

no doubt true, but one is simply left with the

proposition:  how can one say to somebody who suffers

real loss, as a result of real negligence and real

incompetence by a barrister whose fee he is liable

to pay and, on the facts of the particular case, does

not present any of these problems, there is no

missing transcript; no question of calling judges.

how can the public accept an argument that says, "Well,

you take your case away from the court. Even though

there will not be any problems of proof of assessment
in your case, take your case away because in other cases,

there may be."?

ClT75/l/VH	231	11/2/88
Giannarelli(2)

MR HEEREY (continuing): It is a conclusion which, in our

submission, does not rationally justify the argument.

If the Court pleases.

MASON CJ:  Yes, thank you, Mr Heerey. The Court will

consider its decision in this matter.

AT 4.30 PM THE MATTER WAS ADJOURNED SINE DIE

ClT76/l/MB	232	11/2/88
Giannarelli(2)