Giannarelli & Ors v Wraith & Ors; Shulkes v Wraith

[1988] HCATrans 4

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 H59 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

BRENNAN J

Giannarelli(2)

DEANE J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 FEBRUARY 1988, AT 10.17 AM

Copyright in the High Court of Australia

ClTl/1/RB 1 10/2/88

MR C.L. PANNAM, QC: If the Court pleases, I appear with my

learned friend, MR M.W. SHAND, on behalf of the

appellants. (instructed by Sheehans)

MR P.C. HEEREY, QC: If the Court pleases, I appear with my

learned friend, MR A.L. CAVANOUGH, on behalf of

the appellant, Mr Shulkes. (instructed by

Ebsworth and Ebsworth)

MR S.P. CHARLES, QC:  May it please the Court, I appear with

MR R. BERGLUND, on behalf of the respondents in

both appeals.	(instructed by Arthur Robinson and
Hedderwicks)

MASON CJ:  I take it it is convenient to hear these two

appeals together.

MR PANNAM:	Yes, I think that is - - -
MASON CJ:	On the footing that you would be followed by

Mr Heerey before we call on Mr Charles.

MR PANNAM:	Yes, Your Honour.
MASON CJ:	Yes, thanks very much.
MR PANNAM:	I hand to the Court a copy of our outline of

argument, with an apology that it is a little lengthier

than the suggested three pages, and most of the bulk

of it is taken up, though, by an ordering of the

authorities upon which we rely, by reference to the

propositions for which we pray them in support.

MASON CJ: Yes.	Yes, Mr Pannam.
MR PANNAM:	Your Honours, the rather important question that

is raised by this appeal is whether a barrister and

solicitor of the Supreme Court of Victoria, whilst
acting as a barrister in court is liable for negligence
in the conduct and management of the proceedings in

court or in any other tribunal before which he or she

appears. The question in this case arises against

a very simple factual background. As Your Honours are

aware, Mr Costigan's Royal Commission into the

affairs of the Federated Ship Painters' and Dockers'

Union was conducted under the terms of letters patent issued to him by both the Commonwealth Government and the State Government.

During the course of the inquiry before him, each

of the three present appellants were asked certain
questions about the existence of a bank account, and

there was a denial that they had any knowledge of

the existence of a bank account. Subsequently,

proceedings were taken against them, criminal
proceedings, on the basis that those answers were

false, and the proceedings were proceedings under the

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Victorian criminal law, as a matter of cormnon law, perjury, and under the statutory provisions of section 124 or 134 of the CRIMES ACT, and the basis

upon which it was sought to prove on behalf of the

prosecution that the evidence had been given before the Royal Cormnissioner was by tendering transcripts

of the evidence that had been given.

(Continued on page 4)

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MR PANNAM (continuing):	Now as Your Honours are also aware

the provisions of section 6DD of the COMMONWEALTH
ROYAL COMMISSIONS ACT rendered evidence of

proceedings and statements made before a Commonwealth

Royal Corrmissioner inadmissable save in proceedings

under that Act and the prosecutions that the

three appellants faced in the State court were not

prosecutions launched under the Commonwealth Act

but under State law. So that the question was

whether the evidence of the statements -which was

the linchpin - the foundation of the prosecution
for perjury and under the statutory provisions of
section 134 could get off the ground, because if

they could not get off the ground there was a

complete defence.

Now, the three present respondents, a Mr Wraith,

a barrister of counsel, appeared on behalf of

the three appellants at the committal proceedings.
Mr Francis, one of Her Majesty's counsel in the

State of Victoria, was leading counsel at the

trial and Mr Hedigan, one of Her Majesty's counsel,

was senior counsel who appeared on behalf of the

appellants in the Victorian Court of Criminal Appeal.

And at no level, at the committal level, at the

trial level or on the application for leave to

appeal to the Court of Criminal Appeal, was there

any reliance placed upon the section 6DD point.

That point was first taken in this Court on

behalf of the present appellants in a reported

decision, REG V GIANNARELLI (1983), 154 CLR ll2,

where this Court held that the evidence of the

statements made before the Royal Commissioner were

inadmissable because of the operation of section 6DD

of the Act. Thereafter, the present appellants

commenced proceedings for negligence in the

Supreme Court of Victoria against the three present

respondents and others. And perhaps I should

identify the others because in the pleadings the

Court does not have the advantage of a heading

and it is sometimes a little confusing when reading

them to find out who the various defendants are

that are described in the pleadings.

The first defendant was Mr Shulkes, who was

the solicitor who was retained to act on behalf of
the appellants at the committal proceedings.

Mr Wraith, the present first respondent, was the

second defendant. Mr Francis, was the third

defendant and his junior, Mr Milte, was the fourth fifth defendant, and they acted in connection with the appeal to the Court of Criminal Appeal and
defendant, and they appeared at the trial.

Mr Hedigan and Mr Weinberg were the sixth and seventh

defendants. Now, the course of the proceedings

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below, perhaps, are not of much present concern, but

as a result of the decision of Mr Justice Marks,

the primary judge, which was that none of the

defendants enjoyed any immunity in respect of an

alleged liability for negligence, four of those

defendants did not appeal to the Full Court and

there were only three persons who carried that

appeal to the Full Court, namely, the three present

respondents.

(Continued on page 6)

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MR PANNAf'! (continuing):  So that is the way in which the

present three respondents of the seven come to be

respondents to the present proceedings.

The questions raised on the pleadings are -

if I can take the Court just to one of the pleadings
to show the way in which the question arises, can

I take as an example the pleading against Mr Wraith

at pages 92 of the appeal book to 93 to see how

squarely the very point is raised on the pleadings.

At page 92 of the appeal book, in paragraph 11

of the statement of claim as it was ultimately
amended in the Full Court and as the pleading which

is of concern to this Court, in paragraph 11 it

is alleged that:

In or about the month of June 1982, the first defendant -

that is Mr Shulkes, the solicitor -

retained the second defendant -

that is Mr Wraith -

and the latter agreed for reward to act,

as counsel for the plaintiffs and to:-

(a) advise ..... ; and

(b) conduct their defence at

the committal hearing at the Preston Magistrates'

Court on the 22nd June 1982.

And then, over the page, without ~oing to the

particulars, in paragraph 12, it 1s alleged that:

By reason of the matters alleged in

paragraph 11, it was:-
(a) the duty of -

Mr Wraith -

(b) an implied term of the second retainer;

(c) both a duty of the second defendant and

an implied term of his retainer -

of Mr Wraith that he -

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would exercise all reasonable skill, care

and diligence in carrying out that

retainer.

And then, critically, paragraphs 13 and 14:

At the committal hearing -

there is no allegation of anything prior in relation

to advice or anything that happened out of court

but -

At the committal hearing, the second defendant -

that is Mr Wraith -

failed or neglected to object to the admission

of the subject evidence in evidence -

and the same allegation, in a varied form, was

in paragraph 14.

(Continued on page 8)

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MR PANNAM (continuing):  Now, those allegations, in substantially

the same form, were made against both Mr Francis

and Mr Hedigan, and the important point being that

it was during the trial, in the case of Mr Francis,

and during the course of the appeal hearing.	So
that the allegations were confined to a failure
to conduct in court properly the defence at the
committal,at the trial and the appeal.	Now, if

I can just take the Court to just one other section of the pleadings to show how the point, the present

point, arises. I take the Court to pages 108 and 109

of the appeal book where Mr Wraith's defence ends,

and take the Court to paragraph 33 - and this is

in common form with slight variations with the other

two respondents:

Further, or in the alternative, the Second

Defendant says that the Statement of

Claim -

it is at the bottom of page 108 -

the Statement of Claim is bad in law and
discloses no cause of action on the grounds that

as a matter of public policy in the

circumstances alleged -

that is, during the committal hearing -

he is immune from all and any liability for

negligence or breach of retainer arising out

of any act or ommission on his part during

his conduct of the Plaintiffs' defence at

the committal hearing.

Now, there is a similar plea on behalf of the other

two respondents in their defences that relate to

during the course of trial, in the case of Mr Francis,
and during the course of the hearing of the appeal,

in the case of Mr Hedigan. So that the issue that

was raised squarely by those pleadings relates to

of the defence of the present respondents. decisions taken in court in and about the conduct The decision of the Full Court was that that

paragraph of the defence was a complete bar to the

claim and as a result of their view that the three

barrister respondents enjoyed an immunity, judgment

was entered in the action against the present

appellants.

(Continued on page 9)

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MR PANNAM (continuing):  And the order of the Full Court to

that effect appears at pages 220 and 221 of the

appeal book. I will not take Your Honours to the

first part of the orde½ which dealt with a

procedural matter that posed a problem at the outset

of the hearing of the appeal in the Full Court,

but to take Your Honours to page 221 to the judgment

of the Court that:

There be judgment in the proceeding for the

Appellants/Defendants.

And that was on the basis of the answer to the questions formulated at the top of the page which

were said to be questions of law that arose in

relation to those pleas that I have taken Your Honours

to.	The first one was:
as a matter of law -

and they are in common form -

is the first appellant immune from all liability

to the first, second and third respondents
on the facts alleged against him in the

Statement of Claim on the grounds that as

a matter of public policy he is immune from

all and any liability for negligence or breach

of retainer arising out of any act or ommission

on his part during his conduct of the said

respondents' defence at the commital hearing?

That question was posed in relation to the other

two defendants and the answers to those questions

were: yes, as a matter of law there was an immunity.

Now, it will be our submission that in so concluding

the Full Court was in error. First of all because
its interpretation of the provisions of section 10(2)

of the LEGAL PROFESSION PRACTICE ACT of Victoria

was incorrect and that there was in 1891, and since

then in Victoria, the imposition of a liability

for negligence upon counsel in these circumstances,

and we will develop that argument.

And, secondly, if our submissions in relation

to that section do not find favour, then it

is our submission that as a matter of common law

in Victoria that advocates appearing in courts

should not enjoy the immunity that was found to

exist in their favour by the decision of the

Full Court following the decision of the House

of Lords in RONDEL V WORSLEY.

9

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MR PANNAM (continuing):	Your Honours, before I proceed to

develop those submissions can I ask a question,
and it is this: we had prepared a volume which

set out a legislative history of the provisions

of the LEGAL PROFESSION PRACTICE ACT that appear

to us to be relevant, together with some rather

extensive extracts from the parliamentary debates and

I wonder whether copies of that volume has been -

MASON CJ:	We have it.
MR PANNAM:	Your Honours, can I go to the first point, which

is the question that arises under section 10(2)

of the LEGAL PROFESSION PRACTICE ACT of Victoria,

which is a point of statutory interpretation.

Can I take Your Honours to, of that volume that

I have just referred to, to page 30 - the pagination

is in the top right-hand corner, in hand - and

I take Your Honours to the provision that fell

to be interpreted. At page 30 there are set out,

in section 10, the provision that originally became

law in Victoria in 1891, at the point of amalgamation

of the profession,which I shall refer to hereafter.

Section 10(1) provided:

Every barrister shall be entitled to maintain

an action for and recover from the solicitor

or client respectively by whom he has been
employed his fees costs and charges for any

professional work done by him.

(Continued on page 11)

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MR PANNAM (continuing):  It is.clear enough, pausing at that

point, and we will develop this by reference to the

19th century authorities, that prior to the enactment

of section 10(1) in its original form in section 5
of the 1891 Act, that a barrister was under a legal

incapacity in relation to suit for his fees - it had

been well established by that date in the 19th century

that no contractual. relationship could 2xist between

barrister and client and that had been established, if not long before, by KENNEDY V BROWN in 1862, and I will come to - so that changed the law because

thereafter a barrister was to be entitled to maintain

an action for and recover his fees. It is

subsection (2) that is of critical importance:

Every barrister shall be liable for

negligence -

then some important words -

as a barri~ter to the client on whose

behalf he has been employed to the same
extent as a solicitor was on the
twenty-third day of November One Thousand

eight hundred and ninety-one liable to his

client for negligence -

and again the important words

as a solicitor.

So we stress at the outset, in identifying the

provision, the two phrases "as a barrister" and

"as a solicitor", we draw attention to the fact that

the section was designed to make barristers liable

for something and that something was negligence, and

the basis was then identified by reference to a

historical date. Now, the significance of that date

was that on that date in 1891 in Victoria the

profession was merged in ~hat the separate bar and the

separate solicitors admission and basis of practice

were amalgamated. If I can take the Court back to

page 3 of the appeal book in order to get the setting

historically for section 10 and go to the Act that

was passed on the date that is referred to in

section 10(2), there is there set out the provisions

of the 1891 Act which merged the two separate branches

of the profession in Victoria.

I desire to take the Court to four or five of

those provisions to see the way in which that
amalgamation or merger of the two branches of the
profession was achieved, perhaps with the prefatory
observation that prior to 23 November 1891 barristers

had been admitted separately by a barristers

admission board and solicitors had been admitted

separately as solicitors of the court by their

own admissions board. So there were two different

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ways into practice and the popular opinion of the

time was, as we hope we will make good by reference

to the parliamentary debates,that this bifurcation

of professional responsibility was costly and

expensive to the client, if only we could do away

with the two separate branches of the profession

maybe money would be saved, and barristers and

solicitors could do the same work and you would not

have to have the interposition of the one in order

to retain the other, and so on.

So with that just sketched background in mind can I

take the Court then to the provisions of section 2 of

the Act:

In the construction of this Act barrister

shall mean a barrister of the Supreme

Court and solicitor shall mean an attorney

solicitor and proctor of the said court.

3. Every person who has heretofore been

admitted as a barrister -

there are those words again -

as a barrister shall by virtue of this Act

be and is hereby admitted as a solicitor as

and from the date of the passing of this Act,
and in addition to his right to practise

as a barrister shall be entitled to practise
as a solicitor and to all the rights powers

and privileges of a solicitor.

Then the provisions of section 4 were back to back:

Every person who has been heretofore admitted

as a solicitor shall by virtue of this Act

be and is hereby admitted as a barrister as

and from the date of the passing of this

Act, and in addition to his right to practise

as a solciitor shall be entitled to practise
as a barrister and to all the rights powers

and privileges of a barrister.

So so far as persons who had been admitted prior to the

date ot the Act, their qualification was to be extended
to the other side of the theretofore divided

profession.

(Continued on page 13)

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MR PANNAM (continuing):  And then, for the future, the

provision was made in section 10. If I can take

the Court over to page 5. Section 10 deals

with what was to happen to the future:

After the passing of this Act no person

shall be admitted to practise as a barrister

or a solicitor solely, but every person

admitted by the Supreme Court shall be

admitted both as a barrister and solicitor.

So that it is clear that the identification of

functions that are set out in sections 3 and 4

and provided for the future in section 10, proceed

upon the basis that there is not going to be a
cessation of the breed known as solicitors or as
the breed known as barristers. Their functions
are identified but the one person can carry out

the two separate functions, that is, be both a

barrister and a solicitor. So that the right to

practice as the one conferred the right to practice

as the other. In our respectful submission it is

clear that the use of the words "as a solicitor" and
"as a barrister" refer to the traditional functions

associated with those offices.

Then section 5, which is the second last section

we desire to refer to, which is the precursor of

section 10(2) that I have read - (1) and (2):

Every barrister shall in future -

so the provision is ·that from henc...:eforth on -

Every barrister shall in future be entitled

to maintain an action for and recover from

the solicitor or client respectively by

whom he has been employed his fees costs and

charges for any professional work done by

him. And every barrister shall in future be

liable for negligence as a barrister to the

client on whose behalf he has been employed	to the same extent as a solicitor is now
liable to his client for negligence as a solicitor.

Now, we draw attention to the word "now", the word

"now" in the consolidation of 1915. If I can just

take the Court over to section 10, which is on

page 9, the draftsman of the consolidation in 1915

translated the word "now" into a date and that is

how the date comes to get in the present form of

the section. So there is a freezing of the extent

of liability to that of a solicitor and his liability
to his client for negligence as a solicitor at that

particular date, namely the passing of 1891 Act.

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Now, Your Honours, there is one final provision

to desire to refer to and that is section 8 which
dealt with a problem that at least the legislators

identified again, again, and again in their debates.

It was the case of the barrister who charged a fee

but did not turn up.	He excited the wrath of
everyone.	And as I hope to show the Court hereafter

this section was added as a matter of great caution lest

a barrister who did not turn up might not be said

to be negligent under section 5.

In all events section 8 provided that:

Any barrister and solicitor who in any course

cause or matter has received or agreed to

receive a fee for work the whole or any portion of which involves attendance in court and who does not give substantial attendance to such case or matter in court

shall return to the client by or on whose
behalf he has been employed or shall be

deprived of the whole or such portion of

such fee as the prothonotary or other taxing

officer may determine on the application of

such client.

The question whether or not -

perhaps I need not read on except to direct attention

to subsection (3) where there was no contracting out

of that provision permitted. So the case of the

barrister who charged and received but did not return

and did not attend was specifically dealt with in

section 8.

(Continued on page 15)

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MR PANNAM (continuing): Now what, in our submission, was

the result of that - I am speaking in general terms

at the moment and I will put our submission with

more precision in a moment - if one goes back to the

form of the section on page 30, section 10(2), with that

historical background in mind, going back to the

merger that occurred in Victoria in 1891 of the two sides of the profession, that the two subsections,

originally the two sentences that were contained in

barrister to sue for his fees, which he did not enjoy,

the original section 5, were really complementary.

and conferred that benefit upon him. The second

subsection was to subject barristers to a liability

that theretofore had not been known to them, because,

as reference to the 19th century cases will show,

barristers had been held to be immune, not just for

their work in court, but for all of their work as

barristers, since at least the end of the 18th
century. Certainly, the principal appears to have

been quite well settled or thought to be well settled

by the time that this legislation was enacted in 1891,

and we will take the Court to some cases briefly to

make good that proposition.

So that when one goes to section 10(2) we can

identify the two ways in which we put and hope to

develop our submission that the section applies in

the following way. Reference to the 19th century

authorities will show that barristers carrying out

their work as barristers were found to be immune from

liability for everything that they did. The basis for

that immunity was that they had an incapacity to

contract; that incapacity was based upon grounds of
public policy and that that public policy compelled

the conclusion that if you could not charge then you

cannot be liable. We will develop that in due course.

On the other side of the profession, the solicitors-

it is our submission,that by 1891 there had never been

a suggestion made in any reported case or in any

textbook dealing with the subject, that a solicitor
enjoyed any immunity for anything.	Our submission will

be that the cases show - and there are many of them -

that solicitors had, throughout the 19th century,

been regarded as being liable for - or, to put it another

way - they owed to their client a duty to take

reasonable care in and about the matters that they

were retained to do. As we also will hope to make good,

that was both as a matter of contract an implied term

of the contract under which solicitors could be

retained, and also it was a matter of a duty that

was owed independently of contract because of the

proximity of the relationship between the solicitor

and the client. We will hope to make good the

proposition that certainly in 1891 it was seen that

ClT9/l/VH	15	10/2/88
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the duty arose both as a matter of contract and as

a matter of an action on the case in tort. So that

you have. the two categories. For the things that

solicitors normally did as solicitors, no doubt they

were subject to a duty to take reasonable care;

barristers, for the things that they did as

barristers, under no duty of care and indeed enjoying

the immunity to which I have referred.

Now,. if one, with that background in mind, comes

then to address the terms of the section, our

principal submission is that it is clear that what

section 10(2) does is to render a barrister liable for

negligence in the sense that thereafter he is to

owe a duty to take reasonable care to his client:

Every barrister shall be -

and we stress -

liable for negligence -

there is obviously some liability being dealt with

by the section -

liable for negligence as a barrister -

in our respectful submission, that phrase~

as a barrister -

refers to the work that barristers normally do in

court advocacy -

to the client on whose behalf he has been

employed to the same extent as a solicitor

was on the twenty-third day of November

One thousand eight hundred and ninety-one

liable to his client for negligence as a

solicitor -

doing the things that solicitors normally do. So

that when one translates the phrase -

to the same extent -

back to the measure of the liability for negligence,

one has a very simple task, in our respectful

submission. It has been complicated in the judgment

under appeal by an incorrect interpretation of this

section.

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MR PANNAM (continuing):  You simply ask, when carrying out

the functions that a solicitor normally carried

out, was he liabile to his client in negligence,

and the answer was yes, yes, yes; he owed a duty

of care to take reasonable care in relation to the execution of his retainer and to carry out

whatever it was that he was retained to do. And that same liability was imposed upon a barrister

carrying out the work that he normally did - he was

to be liable for negligence in the same way. Now,

if that is correct, that really is a short answer

to the judgment under appeal. I will take the

Court to the way in which the Full Court dealt with

these arguments, in our respectful submission, in a

very unsatisfactory way, but that fits in then to

really what was going on in 1891 and what now is

reflected in section lo. Barristers were to be

able to charge for fees and as the price of
giving them the right to charge fees they were to be
subjected to the same liability as solicitors were
who also had the right to charge fees as a matter

of contract.

So that if one interprets the words in that

way, as in our respectful submission is the ordinary and

natural sense of the words, then really that is a

short answer to the decision on this point by the Full Court which was that - I will take the Court

to it - you cannot interpret the words that way. But

there is a second argument and it is this. If that is thought to be too simplistic and that really the

phrase "for negligence as a solicitor" is ambiguous,
then it is necessary, I suppose, to first identify

the ambiguity and the ambiguity is this. That

does not deal with a solicitor advocate so the

argument would run, so that you have got to ask the

question, in order to apply section 10(2),and the
question is formulated this way. Was a solicitor on 23 November 1891 liable to his client for negligence
as a solicitor when carrying out the work of an

advocate? The language is not there, but the

Full Court thought that that was the proper

construction, so that you ask for negligence as a

solicitor carrying out the work of an advocate.

Now, in Victoria at the time, it is clear that

solicitors had the right of audience in the county

court, that had been conferred by statute in 1852

under the COUNTY COURT ACT, in matters, I think, above

10 pounds, and they had a right of audience, not

in the supreme court but in all of the equivalents

of the magistrates court, before justices and so on.

So that they certainly had the right to appear in

the county court and other courts and tribunals

in the State. And our alternative submission is that

even if you ask that question, was a solicitor

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liable to his client for negligence as a solicitor

while carrying out the function of an advocate on

that date, then the answer is precisely the same

because we refer to and rely upon a large number of

cases which, in our respectful submission, carry

that proposition. The Full Court thought not and

we hope to develop the argument that the Full Court

took a very crabbed and pedantic view about the

scope of the authorities that we referred to and

relied upon and that really properly understood

they carry the proposition that solicitors were

regarded as being liable for negligence whenever

they acted as advocates. It was not the function

that gave them any immunity, it was the existence

of the contract that subjected them to the

liability.

Your Honours, they are the ways in which we

seek to develop the argument under section 10 and

what we proposed to do was to, first of all, take

the Court to but a few authorities, a few

moments to go through, that deal with the position

of barristers and the fact that their immunity was

a complete immunity in respect of all work that they

did as at the date of the passing of the legislation
and then take the Court to a line of authorities
dealing with the liability of solicitors and with

a view to trying to establish the proposition that

it was clear that they were liable for certainly

everything they did up to the door of the court.

That had never been in doubt and was established by

an avalanche of authorities that really were not
challenged by the decision under appeal but,

in our respectful submission, also show that

solicitors were regarded as being liable for

in-court advocacy errors, if they were negligent,

at the relevant date.

(Continued on page 19)

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DAWSON J:  Dr Pannam, on your argument, the second part

of section 10(2) is superfluous.	The subsection
that:

Every barrister should be liable for

negligence as a barrister to the client on

whose behalf he has been employed -

that would be enough?

MR PANNAM:  Yes, that would be enough, but in terms of the

amalgamation statute this is, in our respectful

submission, to be understood as putting them on the same footing and to show that the barrister

was to be exactly the same as the solicitor.

It fits into and forms part of the provisions of section 3 and section 4 in the original Act. It

the other 11 and vice versa and that in terms of	is the 11 one shall have the right to practice as
liability it is to be :he same. They are to be
on the same basis, the same footing and, in our respectful submission, Your Honour's observation is correct, that the draftsman could have stopped at the end of "employed".

DAWSON J:  But it has a certain propaganda purpose.

MR PANNAM: In our respectfull submission, yes, because

what it was doing was indicating that there was

to be no difference in future between barristers

and solicitors, they were to be admitted in the

same way, they were to be liable in the same way

and that is what we contend is the meaning of the

section. And the second part of the section, in

any event, has to be given some meaning and it

does invite, on any view, even if that proposition

be correct, regard to the extent of the solicitor's

liability for negligence to his client at a named

date. So that even though it may have been enough

it is certain that whether to go on was a political

gesture or not to make clear the common basis that

was theretofore to be enjoyed for liability for

both sides of the profession, it does invite this

curious reference to a "liability for negligence

as a solicitor" to his client on a particular day.

DEANE J:	The additional provision might be relevant on
questions such as ability to contract out, for
example.
MR PANNAM:	Yes, it might.

DEANE J: If it had stopped there one would think it would

preclude contracting out of liability for negligence;

if it goes on it does not.

MR PANNAM:  Yes, there may have been a question whether

a solicitor who was certainly bound by contract

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to a client in 1891, or prior to the enactment

of this legislation, he would have found himself

in a position where he may have stipulated, "Well,

I will act for you but you know I am liable for

negligence and I will only act on the basis that

you don't sue me; I will take all care but no

responsibility." - in the traditional phrase or

whatever else was used. And then, I suppose, a

question would be whether such a term of a contract

would be lawful or not. Maybe an argument,

faintly, could be put that it was inconsistent

with the proper administration of justice and unlawful

on that ground - a faint argument, probably not

a good one - but then there would be the professional

question arising as to whether professional men

would or would be allowed by their professional

bodies to take such a point.

So that, I am grateful for Your Honour's

observation that it certainly would add that, that

a solicitor may have been able to,and it leaves

the same possibility that a barrister might have

been able to do the same thing. But, in all events,

whatever may be the explanation for the last part

of subsection (2), it is clear enough that it does

invite an inquiry as to what the position was in

terms of the extent of liability of a solicitor

for negligence to his client as a solicitor, whatever

that may mean, on the named date.

It is curious inquiry because it freezes,

as it were, the point in time at which the inquiry

is to be made and that has got its difficulties

and problems when one looks back almost a hundred

years later but, in our respectful submission,
in the context.it was clear enough having regard
to the contributions that were made during the

course of the parliamentary debate, "Isn't it unfair

that solicitors are liable and barristers are not.''
to say, "Well, they will be liable on exactly the

same basis as they now are." and that, we submit, fits into the pattern of the legislation.

(Continued on page 21)

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MR PANNAM'(continuing):  Now, Your Honours, against that

background can I take Your Honours, briefly, to

two lines of cases, one dealing with barristers

and one dealing with solicitors, to attempt to

make good the general propositions that I have

made. It will not take long because the cases

are reported in rather short compass, at least

so far as barristers are concerned. And can I

take the Court first to the line of cases in the
19th century, or the late 18th century and the

middle of the 19th century, that deal with barristers.

Can I take the Court first to FELL V BROWN, a

tersely reported ruling of Lord Kenyon in 1791

which is the start of the immunity doctrine, at

least in modern times, when it there appears that

the action was against a barrister -

for unskilfully and negligently settling and

signing a bill filed by the plaintiff in the

Court of Chancery.

So, this is very much work out of court - settling

and signing a bill - and it had been referred:

by the Lord Chancellor to the Master, for

scandal and impertinence, and the plaintiff

was obliged to pay the costs of that reference.

And the famous advocate Thomas Erskine, for the

plaintiff, addressed the jury and said he would

prove this to be great negligence -

and not just a mere error in judgment.

That was the learning then that it was not just simple negligence: something more had to be shown,

gross negligence, crass negligence.

If a counsel gives his opinion on any question,

and happens to be mistaken, it cannot be said

but if he is so inattentive to his duty as that he has been guilty of gross negligence;	to blunder in the common course of business,
he makes himself liable to an action, as would
also a physician for such gross misconduct.

Lord Kenyon was clearly of the opinion,

that this action could not be supported.

More objections than one, his Lordship said,

might be made to it. The Court of Chancery

will in such cases exert a summary power,

if it is found expedient so to do; but it

that Court will order the counsel to pay the

costs, it does not follow that an action can

be maintained. If this action could be supported

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it would equally lie against a counsel for

inserting a count in a declaration, or putting

matter in a plea which ought not to be there,

and which the Court should think improper

and impertinent. In a case where Lord Weymouth

was a defendant, the Court thought the

delcaration full of unnecessary matter, and
ordered it to be struck out, with costs, but

no one ever entertained an idea that an action

could be maintained against the counsel who

drew that declaration. His Lordship added,

that he believed this action was the first,

and hoped it would be the last, of the kind.

On that expression of opinion:

the cause was given up, and the plaintiff

nonsuited

but a note was taken of the cause so that Erskine could move for a new trial, if he thought proper,

and did not.

Lord Kenyon decided TURNER V PHILLIPS in the

same year which was shortly reported in Peake's

Reports, page 116 of the English Report, and here

it was an action for:

Assumpsit for money had and received.

The plaintiff being a party in a former

cause, had given the defendant a brief to

attend as one of his counsel on the trial

of that cause; and the defendant not having

attended the trial, the present action was

brought to recover back the fee given to him

on that occasion.

This was to excite a good deal of concern in the

Victorian Parliament.

Lord Kenyon advised an agreement between

the parties, saying, that whether Mr Phillips

would chuse to return the fee or not, was

for his own consideration; but if the cause

was to proceed he should feel himself obliged

to interpose, and the parties might apply
to the Court if they were dissatisfied with

his opinion.

His Lordship referred to the case of CHORLEY V BALCOTT -

mentioned the general opinion of the profession,

that the fees of barristers and physicians

were as a present by the client, and not a

payment or hire for their labour.

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MR PANNAM (continuing):  He was a very forceful judge because

again there was a settlement of the cause consequent

upon the intervention of Lord Kenyon.

There is another brief case that we desire to refer to and rely upon, simply to take the

matter further. It is briefly reported -it is

not on the list of authorities; it is a case

called PERRING V REBUTTER, (1842) 2 M & ROB 430,

174 ER 340. The report is very brief, it was

an action against a special pleader - it is unthinkable

that his name really was "Rebutter" and that

was not a name that was given to him by the reporter

to preserve his identity but, at all events,

it was alleged that the special pleading was

no good and a defence failed and Sir James Scarlet,

who was then Lord Abinger, the Chief Baron, said:

he had read the declaration and did not

see how this action could be maintained.

Such an action was certainly not maintainable

against a barrister, and in his opinion

there was no distinction between the case

of a barrister and that of a certificated

special pleader.

We refer to that case simply to show the immunity was not an in-court immunity; it clearly extended to the preparation of pleadings and matters of

that kind.

The only other two cases we would desire

to refer to are the two cases that involve the

SWINFEN litigation in the middle of the century

and the first of those being SWINFEN V LORD CHELMSFORD

in 1860. What had occurred - not going into detail

to the facts of the case, which is not necessary,

is that during the conduct of a cause by

Sir Frederick Thesiger who had since been elevated

to the Bench and had become Lord Chelmsford,

the Lord Chancellor - he had, without any instructions

from his client, she not being presented, agreed

to settle a cause that was then, in course of

hearing during a nisi prius trial, and had agreed

consequent upon the compromise to withdraw a

juror and hence the case came to an end. She

complained against his action in so settling

the case without her authority and she retained
the services of a Mr Kennedy of the Bermingham, then the London bar, to conduct this litigation

and he was to feature in the next case. The

claim was that Lord Chelmsford, Sir Frederick Thesiger,

was liable for his negligence in settling, compromising,

without authority and that was disposed of by
the Court. If I could take Your Honours to page 448
of the English Report, the judgment of the Court

of Exchequer, delivered by Chief Baron Pollock,

at page 1448, the top of the page:

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This case is of very great and general

importance, raising questions as to the

duties and responsibilities of the members

of the Bar, and the obligation under which

they came, by accepting a retainer and

afterwards holding a brief ..... They have

no legal claim to any remuneration for the

services they render, though they usually

receive a fee, a honorarium, and they

undoubtedly (in the ordinary course of business)

enter into no express contract.

Then the Chief Baron refers to various authorities

and then to the pagination [919], if I can take

Your Honours down to that, in the next line:

Upon an express agreement he would no doubt

be liable as any other person, party to

a contract: so if he intentionally did
a wrong, and acted with malice, fraud or

treachery, we think he would be responsible,

like every other wrong-doer, for the mischief

thereby occasioned, notwithstanding his

position as a barrister.

And then if I can take the Court down to eight lines

from the bottom of the page:

(Continued on page 25)

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MR PANNAM (continuing):

We are all of opinion that an advocate

at the English bar, accepting a brief in

the usual way, undertakes a duty, but does
not enter into any contract or promise,

express, or implied. Cases may, indeed, occur,

where, on an express promise (if he made one),

he would be liable in assumpsit; but we

think a barrister is to be considered, not as
making a contract with his client, but as
taking upon himself an office or duty, in
the proper discharge of which not merely the
client, but the Court in which the duty is

to be performed, and the public at large,

have an interest.

And over the page at page 1449, two-thirds down

the page, and the paragraph that begins "Now", after

identifying the complaints, that is the compromise

and consenting to the juror being withdrawn:

Now, as to the first of these allegations -

that is the withdrawal of the juror -

we are all of opinion that no action lies,
taking along with the other facts the verdict
of the jury. The conduct and control of the
cause are necessarily left to counsel. If a

party desires to retain the power of directing

counsel how the suit shall be conducted, he

must agree with some counsel willing so to

bind himself. A counsel is not subject to an

action for calling or not calling a particular

witness, or for putting or omitting to put

a particular question, or for honestly taking

a view of the case which may turn out to be
quite erroneous. If he were so liable, counsel

would perform their duties under the peril

of an action by every disappointed and angry
client.	We think, therefore, that no action

lies against the defendant for consenting

to withdraw a juror, even though contrary to

the client's instructions, provided it be

done bona fide, as the jury have found it was

done.

Perhaps, I should take the Court over the

page to page 1450, last paragraph of the judgment,

cen lines from the bottom, beginning with the

word, "according".

According to my view of the law a barrister, acting with perfect good faith and with a single view to the interests of his client

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is not responsible for any mistake or

indiscretion or error of judgment of any

sort; and if he imagines he has authority

to make a compromise when he really has not -

this is a mistake either in law or fact; or
if, in spite of instructions to the contrary,

he enters into a compromise, believing that

it is the best course to take, and that the

interest of his client requires it, this is

but an indiscretion or an error in judgment

if done honestly; and it appears to me that,

neither for the one nor the other, can any

action be maintained against him, and I should

have been willing to put my judgment on that

ground; and our lamented Brother Watson, who

heard the whole of the argument, was entirely

of the same opinion, and therefore would

certainly have concurred in our judgment

that the rule for a new trial be discharged.

What happened after that was that there was a plethora

of litigation involving Mrs Swinfen because she
refused to honour the terms of the compromise and

there were proceedings for specific performance

and to attach her for contempt and finally she

applied and was successful in the Court of Chancery

to have the compromise set aside and all of these

various pieces of litigation were carried on

enthusiastically by the barrister, Mr Kennedy, who

indeed argued this case, SWINFEN V LORD CH.ELMSFORD.

Mr Kennedy was promised L0,000 pounds for his efforts,

a very considerable sum in those days, and Mrs Swinfen

refused to pay.

And the last case we want to refer to is

KENNEDY V BROUN- she had remarried in the meantime and

become Mrs Brown - and Mr Kennedy did not fair very

well.	He certainly did not get his 20,000 pounds or
anything else.	Can I take the Court to
KENNEDY V BROUN,(1862), 13 CB.	I will attempt to

take Your Honours to the detail of Mr Kennedy's

argument, it was very learned and he must have spent

a very long time working it up, it extends overy

many pages and goes into very many abstruse subjects.

But can I take the Court to the judgment of

Chief Justice Erle at page L87 of the English Report.

(Continued on page 27)

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MR PANNAM (continuing):  At the bottom of the page, the last

full paragraph:

We consider that a promise by a client to

pay money to a counsel for his advocacy,

whether made before, or during, or after

litigation, has no binding effect; and,

furthermore, that the relation of counsel
and client renders the parties mutually

incapable of making any contract of hiring

and service concerning advocacy in

litigation.

Then there is a detailed consideration of all of

the authorities that Mr Kennedy had enthusiastically

deployed in support of his contention. At page 291

of the report in the English Reports, there is the

commencement of a theme of great hyperbole that seems

Just under the figure 737 in square brackets, the next paragraph, after referring to the piece that	to infect these area of the law as we will later show. settlement, as distinct from the welter of litigation
that Mr Kennedy had involved her in, the Chief Justice
continues:

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.

We are aware that, in the class of advocates,

as in every other numerous class, there will be

bad men taking the wages of evil, and therewith

also for the most part the early blight that

waits upon the servants of evil. We are aware

also that there will be many men or ordinary

powers, performing ordinary duties without
praise or blame. But the advocate entitled to

permanent success must unite high powers of

intellect with high principles of duty. His

faculties and acquirements are tested by a

ceaseless competition proportioned to the prize
to be gained, that is, wealth and power and
honour without, and active exercise for the

best gifts of mind within. He is trusted with

interests and privileges and powers almost to

an unlimited degree. His client must rely on him

at times for fortune and character and life.

The law trusts him with a privilege in respect

of liberty of speech which is in practice bounded

only by his own sense of duty; and he may have to

speak upon subjects concerning the deepests

interests of social life, and the innermost

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feelings of the human soul. The law also

trusts him with a power of insisting on

answers to the most painful questioning;

and this power, again, is in practice only

controlled by his own view of the interests

of truth. It is of the last importance that

the sense of duty should be in active

energy proportioned to the magnitude of

these interests. If the law is that the

advocate is incapable of contracting for hire

to serve when he has undertaken an advocacy,

his words and acts ought to be guided by a

sense of duty, that is to say, duty to his

client, binding him to exert every faculty

and privilege and power in order that he may

maintain that client's right, together with
duty to the court and himself, binding him

to guard against abuse of the powers and

privileges intrusted to him, by a constant

recourse to his own sense of right.

And so the matter goes on, and we have indicated

before, it is that kind of purple prose that tends

to affect, as we will show, many judges who

deal with this question of barristers and the basis

for their immunity.

(Continued on page 29)

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MASON CJ:  You are not going to read all this purple prose

out to us, are you?

MR PANNAM:  No, no. Well, Your Honours, those cases - I will

not refer to BATCHELOR V PATERSON in Scotland or

ROBERTSON V MacDONOUGH in Ireland, which established

the same immunity in those. other parts of the United Kingdan,

but what those authorities show, in our respectful

submission, is if there is one thing clear in 1891

when the Victorian Parliament was enacting section 5

of the 1891 Act, it was that barristers were immune

from liability, full stop. It was not an in court

immunity and, in fact, almost every one of the

decisions that we have referred to are out of court

immunities. They were settling pleadings and matters

of that kind, entering into compromises and so on.

Now, that is that side of the profession.

Can we take Your Honours to the other side of

profession, the solicitors, and we desire to refer
to a line of cases which - we will not bother the Court
with the cases that are collected by both

Mr Justice Marks and the Full Court thatdeal with the

general liability of solicitors for negligence in

relation to out of court activities because it would

be a wearisome task and, as we put it before, an

avalanche of those authorities. We will simply

refer the Court to the collection of the authorities

by Mr Justice Marks at pages 169 to 171 of the appeal

book where the 19th century cases are summarized:

failure to have witnesses in Court;

..... failure to appear before arbitrators; .....

failure to procure attendance of witnesses;

...... to give proper advice; ...... to take

proofs; .... allowing judgment to go by

default -

and so on. All of those cases are collected there.

There is another collection of such cases in the

judgment of the Full Court which appears at
pages 206 to 207 of the appeal book.	The typical

alleged solicitor's negligence: failing to produce
witnesses, not serving subpoenas, not properly

proofing witnesses, allowing judgments to go by

default, those sort of complaints:

employment of a surveyor given to drinking and

not ascertaining before trial that the

surveyor had got drink and failed to take

certain measurements -

and matters of that sort. We will not go to those

because they establish, in an incontestable way,

that solicitors, while carrying out their ordinary

functions as solicitors, were liable on the basis

of an implied term of the retainer, that they would

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take reasonable care or, alternatively, they owed

that duty. The cases we do desire to briefly take

the Court to are the cases that are listed in

paragraph 7 of our outline, because it is those

cases that go to the point that the Full Court

decided, that is, that there was no authority for

the proposition in November 1891 that solicitors

were liable for in court negligence. We want to

take the Court to, first of all, HART V FRAME,

a decision of the House of Lords which, in our

respectful submission, in fact, carries that

proposition and carries it clearly. HART V FRAME

was a case where the facts were relatively simple.

An employer, John Frame and Sons,retained a

firm Hart and Hodge to take proceedings against

their apprentices, one Houston and one Crookshank.

The proceedings were taken under the section of

the Act that is set out on page 670 of the English

Report in the footnote.

(Continued on page 31)

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MR PANNAM (continuing):  Your Honours will see there that

there was a section 1 of the Act that is identified

said:

That it shall and may be lawful, not only

for any master or mistress, but also for

his or her steward, manager, or agent, to

make complaint_, upon oath, against any

apprentice, within the meaning of the said
before recited Acts, to any justice of

the peace of the country or place where

such apprentice shall be employed, or

for any misdemeanor, misconduct, or
ill-behaviour of any such apprentice;
of if such apprentice shall have absconded,

it shall be lawful for any justice of the

peace of the country or place where such

apprentice shall be found, or where such apprentice shall have been employed, and

any such justice is hereby empowered,
upon complaint thereof, made upon oath,

by such master, mistress, steward, manager,

or agent, which oath the said justice is

is hereby empowered to administer, to issue

a warrant.

So step one : go before the justice, state your case

and get a warrant for apprehension:

And further, that it shall be lawful for any

such justice to hear and determine the said

complaint, and to punish the offender.

So what Hart and Hodge, the attorneys, wer.e retained

to do was to put the complaint before the justices

and see that a warrant was issued authorizing the

arrest of Houston and Crookshank, and then secondly,

when they had been apprehended, to go back to the

justices and have them put in gaol. Now, this was

work, in our respectful submission, clearly in court

before justices and what happened that created the

problem was that the proceedings were taken under

the wrong section. They were taken not under

section 1 but under section 3, which I will not take

Your Honours to. The detail of it does not matter, but it was an error. Because of that error the warrant was found to be invalid, they were found to have

been falsely imprisoned and their employers, John

Frame and Son, had settled their action for wrongful

imprisonment on the basis of giving them 25 pounds
each and their taxed costs of the proceedings, and
indeed an attorney acting on behalf of Crookshank
had taken the point before the justices that the wrong

section had been employed and the matter appears to

have been argued in court.

Now, the Lord Chancellor, Lord Cottenham, dealt

with the matter at page 676, and can I take the

Court to what the Lord Chancellor had to say about

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the matter. about 20 lines down from the top, to

the word "Looking":

Looking, therefore, to the case against

the apprentices -

if Your Honours have picked that up -

which the Respondents were instructed to conduct, and to the Act under which they

proceeded, it does not appear to me to be

a case of very great negligence; which

term I deem more applicable than ignorance,

the Appellant's case being, that they were led into the error by following the example of another professional agent of the

Respondents -

they had copied the wrong precedent, or they had

copied a precedent that was wrong -

who had adopted the same course and thereby

involved his employers in the same

difficulty and exposed himself to the same

responsibility. It is obvious that this can

be no defence. It was the duty of the

Appellants to look with their own eyes, and judge with their own understandings; and

if, instead of doing so, they have blindly

followed the erroneous course taken by another
agent, they cannot complain of being made

responsible for the consequences of the error

into which this false guide led them. Their

employers had a right to the diligence, their knowledge, and their skill; and whether they

had not so much of these qualities as they

were bound to have, or, having them,

neglected to employ them, the law properly

makes them liable for the loss which has

accrued to their employers. Another ground

of defence is that the point having been

who heard the point argued was of opinion raised in the case of Crookshank, the justice	that the third section was the one applicable
to the case. This circumstance, if there
had been any real doubt upon the construction
of the Act, might possibly have induced the Court to consider whether there was
sufficient opening for the adopted
construction to operate as an excuse for
the Appellants; but the case appears to me to be too clear for any such construction.

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MR PANNAN (continuing): That was put to one side and if

I can go down to about 12 lines from the bottom:

Professional men, possessed of a reasonable

portion of information and skill, according

to the duties they undertake to perform,

and exercising what they so possess with

reasonable care and diligence in the affairs
of their employers, certainly ought not to

be held liable for errors in judgment, whether

in matters of law or discretion. Every case,

therefore, ought to depend upon its own

peculiar circumstances; and when an injury

has been sustained which could not have arisen

except from the want of such reasonable skill

and diligence, or the absence of the employment
of either on the part of the attorney, the

law holds him liable. In undertaking the

client's business, he undertakes for the

existence and for the due employment of these

qualities, and receives the price for them.

Such is the principle of the law of England,

and that of Scotland does not vary from it.

I think this case clearly within the principle.
I must observe, that it is one in which your

Lordships would not be disposed to disturb the judgment of the Court below, without

a clear case of miscarriage in that Court.

And just the last line I want to read at the top

of the next page:

There is no principle of law in dispute

here.

MASON CJ:  Now the error there consisted in wrongly framing

the petititon.

MR PANNAM:  Yes.

MASON CJ: It was filed in court on the wrong section of

the Act. Now, is that in court negligence, whatever

"in court negligence" means?

MR PANNAM: It may be a point about whether all errors

in court have their origin in something done out

of court but what happened was, clearly, the petition

had been prepared on the wrong section in an office

but it was then carried before the justices and

an application made to them to issue a warrant
and it was issued. And then, on the return, the
argument took place - the point, in fact, was taken

and no doubt argument took place on it and the

justices ruled, in court, that there-was no substance

to the objection and ordered that the apprentices

be put in gaol.

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Now, the error may have been made, in one

sense, out of court, but certainly when the point

in the case of Crookshank had been argued and the

justices had ruled, presumably the attorney who

was present who had drawn the petititon was supporting

it by argument in court, it would be as if a counsel

in chambers had decided the night before that

section 6DD ,- "That wasn't a very good point at

all, I'm not.going to take that in court tomorrow."

and had considered it and just put it to one side.

MASON CJ: If you look to Lord Cottenham's speech, does

it not appear, in the sentence immediately before

the commencement of the passage that you read,

that he identifies the error in founding the petition

upon the third section instead of the first?

MR PANNAM:  "The whole evil has arisen"?

MASON CJ: Yes, that is so, Your Honour. That was the

foundation of the error but it was certainly carried

forward in the setting of an advocate certainly

insisting that his out of court decision was

correct when the point was taken against him.

BRENNAN J: If this had been a judicial proceeding, how

could the plaintiffs in the action have recovered

damages for being incarcerated?

MR PANNAM:	I think the answer to that might be - I think there had been a review, in fact. If I could take
the Court to page 671 - yes, they had recovered
damages for false imprisonment but I do not know that I can answer the question as to why it was based upon - presumably it was that the error was
attributed to the person on whose behalf the proceedings had been instituted. It is a somewhat
curious doctrine but that certainly seems to be
the assumption upon which the whole of the argument and the whole of the decision in the case depends.
BRENNAN J: It may be that it was regarded as administrative

from start to finish.

MR PANNAM:  In our respectful submission that could not

be the position because once there was apprehension

there would have to be a determination of "Was
the misdemeanour misconduct i 11 behaviour? 11 and
there had to be a determination of penalty and

that would be, in our respectful submission,

conferred upon justices, not an adminstration matter.

(Continued on page 35)

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MR PANNAM (continuing): It interferes with the liberty of

the subject; it requires truth of facts to demonstrate
that the jurisdiction is attached, and then the

exercise of judgment as to whether the circumstances

have arisen and then an exercise of discretion

as to what penalty was appropriate. It would

appear to be a judicial function, in my respectful

submission, but for the moment I cannot directly
answer Your Honour's question but I am almost

sure that the answer appears somewhere in the

prefatory statements of the facts and the procedures

that were employed for reviewing those proceedings.

I think there is a set of proceedings that I

have not referred to which consisted of Crookshanks

and Houston challenging the validity of the issue

of the warrant. I cannot pick it up - I cannot

answer Your Honour's question.

BRENNAN J:	Do not let us delay you now.
MR PANNAM:	Your Honours, that is really the only case

that I think requires - that is the highest,

I think, that the authorities in the 19th century

go; that is the closest to the point of all

of the authorities we can find. We do desire,

briefly, to refer to several other authorities,

however, to show that really it had never been

suggested in the 19th century that the solicitor

enjoyed any such immunity. There was a similar

Scots case, SMITH V GRANT AND LESLIE, in 1858,

if we could refer to next. It was a similar

kind of case involving similar statutory procedures

that could be set in train against a servant.

This servant had departed his employment on the

basis that he had received foul meat that had

been made by his employer's cook. The proceedings

had been set in train and the attorneys who had

been retained to conduct the proceedings before
the justices had neglected to see that the relevant

papers had been properly authenticated by the

justices after the justices had indicated that

they would make the appropriate orders or issue
the appropriate warrants.	At the top of page 1081,
the Lord Justice-Clerk,	one of three members

of the Court, Lord Murray and Lord Wood, says,

at the top of the page:

The employment was to manage and conduct

professional business of a kind most perilous

to the client, viz. to carry through proceedings

which were to end, if successful, in the

personal punishment of the parties complained

of, but in which, if the conviction proceeded

on irregular and blundered proceedings,

their client would be subjected to damages.

It ought to have been fully in the view

of the defenders that any inattention would

lead t-0 this most severe and cruel injury

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injury to their client, viz. that he would

be a great sufferer from inattention to

the regularity of the procedure, though complaining justly of a wrong inflicted

on himself. Proceedings conducted with

a view to criminal punishment in such

private prosecutions, are notoriously attended

with this risk to the client. Whatever

proceedings relate to the personal liberty

of the subject have notoriously always been

viewed with the most scrupulous and rigid

jealousy. The proceedings under the statute in question have been very frequently carried

through with great blunders, and the cases

form a most significant warning of the paramount

necessity of strict attention to the observance

of the forms essentially required to warrant

conviction. Then the proceedings are carried

on before the ordinary Justices of the

Peace, notoriously requiring aid in keeping

them right, and who, however well qualified

to decide correctly and justly on the evidence

before them, have no skill as to matters

of form; and whose clerks are often not

much better qualified.

Then, if I can go down a paragraph to the one

that commences, "In the present case":

In the present instance, the blunder

arose from most inexcusable and careless

inattention to the proceeding going on

before the agents' eyes.	The declaiations
were written on separate papers.	They

were signed by the parties. All this took

place before the agents in open court.

They were not authenticated by the Justices,

and therefore no part of the process.

The necessary course of procedure was to

hand the declarations to the Justices,

either separately as each was signed, or

together after all were signed. The agent

was bound to watch to see what was done.

The proceedings took place under his eye

and before him.

(Continued on page 37)

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MR PANNAM (continuing):  Can I take Your Honours over to the

judgment of Lord Wood on page 1082, about one-third

of the way down the page, where His Lordship said:

He is not employed merely to institute the proceedings. His employment does not end

there. On the contrary, it continues

during the whole course of them, and for

his attendance he has his professional

charge. It consequently, I apprehend,

involves that there lies upon him the duty of watching the proceedings, and seeing to

their being conducted in a regular manner,

in order to afford protection to his client,

and that he does not stand in the situation

of a mere irresponsible looker-on.

So much for the defenders' employment

while the case was in court. But here their

employment did not end there.

And it goes on to other matters. And Lord Cowan,

at the bottom of page 1083, the last four lines:

Now, in this case, these declarations were

the proof in the cause, and taken on the

motion and in the presence of the defenders, who had the sole conduct of the proceedings. This matter was within the scope of their duty

as agents.

Now, here there was no interposed barrister. They

were setting in train proceedings before the

justices who were required to be kept right and there

was a fundamental defect in the form. Now it is

not a case of making an error in terms of an

argument, it is a more formal matter than that, but

it nevertheless is a case equivalent of a

solicitor being retained to carry out a proceeding

in court and as part of that proceeding was obtaining

the appropriate order based upon the proper formal

documents and it was not done.

The next case we desire to refer to was a case

called MONTRIOU V JEFFREYS, (1825) 2 Car & P. Now

what happened here was that there was an alleged

failure to properly follow a statutory procedure.

As appears from the introductory statement of the

facts:  ·

Mr Montriou, happening to be in Suffolk in

the month of November ..... was applied to on

a Saturday by the defendant, and several

other farmers, to attend for them before two
magistrates on the following Monday, they

having been summoned for non-payment of tithes.

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Now there was a technical defence, the detail of

which it does not matter, it appears from the statute

set out in the footnote on page 52, that there was

a particular defence that was known as a "modus

decirr.andi", and once that defence was raised

properly before the magistrates, their jurisdiction
ceased and the matter had to go to a superior

court:

He told them it was impossible to find out

evidence before the Monday, and as he was

obliged to go to London, it was arranged

that he should instruct a Mr. King, an

attorney of the neighbourhood, who was also

clerk to the magistrates, to act as his

agent, and attend for them, and request that

the case might be put off for two or three

days.

Now, what happened was that there was an attendance

before the magistrates, there was as a condition
of an adjournment some costs were required, the

clients refused to put up the costs and the point

went off. But it was clear that there had not been

prepared the appropriate documents that had to be

laid before the magistrates to establish the defence

of the modus decimandi which would have ceased

their jurisdiction.

(Continued on page 39)

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MR PANNAM'(continuing): If I can take the Court to page 52,

the first full paragraph:

It appeared that at the hearing on the Monday, the two iustices were informed that the defence

set up w~s a modus, and that the parties were

not prepared to give any specific evidence of it: but Mr King, who was examined as a

witness admitted on his cross-examination,

that he did not previously prepare any bond

or formal notice of the nature of the defence -

that was required under the statute -

although it was in evidence that the statute

which requires such steps to be taken, had

been perused by Mr Mand himself. But, a

bond and notice were afterwards prepared.

Now, this was therefore, again, a failure to

properly prepare documents out of court for use

in court but because they were not present in court

it was alleged that the case had gone off and the

clients had suffered.

On page 53 in the summing up to the jury in

the action that was brought for the damages that
were thereby caused, now, the Chief Justice Abbott,

about 12 lines down from the top says:

King says, that he and Montriou looked into

the Act of Parliament, and were aware that
under its provisions they were to inform the

justices, and give security if they relied

on a modus. And if they had done so, the

jurisdiciton of the justices would have been

at an end, for it never could be intended

by the legislature that magistrates should
decide such a question, unless both parties
should think fit. It does not appear that

any advice was given as to the notice and

security.

And there is the famous passage at the end of the

judgment that I will not read about	no one being
expected to know all the law.	But at least the

matter went to the jury and, in our respectful

submission, although not quite there, because it

might again be said that the documents should have

been prepared out of court but he was in court

conducting proceedings before the magistrates,

he had to be armed with papers in order to stop

their jurisdiction attaching in order to put it

off to a superior court and did not. And it was

assumed by the Chief Justice that there would be

liability if the facts otherwise supported the
existence of the liability and it was obvious that

they did not and the case did not proceed.

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The next case is STOKES V TRUMPER. We will

not take very long about the next series of cases,

but we do want to take the Court to them in order

to show how close to the proposition these authorities

do go, even if they do not quite carry it. Now,

I do not want to spend much time on STOKES V TRUMPER

because it involves a very obscure point of procedure

in Chancery in the 1850s and it is enough, without

taking Your Honours to the facts, to note that in the procedure that was applied in Chancery,

parties could be interrogated but the interrogatories

were administered by and the evidence was given

to a commissioner of that court. And the

interrogatories that were administered by the

commissioners were prepared by attorneys or solicitors

acting on behalf of parties.

Now, what bapp€ned in this case was that

a solicitor made a mistake and although he did

not attend - he was not in the room when the

commissioner of the Court of Chancery was administering

the interrogatories, it seems that he had had
the commissioner examine in-chief witnesses when,

really, what he should have done was to have the

commissioner cross-examine the witnesses. And

as a result of making that mistake, the old rules

about interest in witnesses attached and because

he had examined rather than cross-examined, no

decree could be made against them.

(Continued on page 41)

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MR PANNAM (continuing): To go into the detail of it really

would take too much time and lead nowhere and

really be an esoteric exercise in old Chancery

procedure. It is enough, for our purposes, to take

the Court to the judgment of the Vice Chancellor -
can I take the Court across to page 771 of the

English Report - an action being taken against the

solicitor because his clients were prevented from

taking a decree against the witnesses that had been

examined rather than cross-examined. At the top of

the page, what the Vice Chancellor said was this:

But the foundation of the argument in the

case supposed is that the solicitor acted

bona fide, and used ordinary diligence and

ordinary skill, and that so acting and using

such diligence and skill he was misled, and

misled simply on a doubtful point of law,

into taking a step which ultimately proved ruinous to his clients. Now this case is

wholly different from the case supposed;

Mr Pugh -

he was the solicitor -

has not been misled by anything of the kind.

It is impossible, consistently with the
facts in evidence, to hold that he had in the

least considered the point of the law with a

view to examining the Defendants, Gowland

and Lee-Warner, as witnesses on the part of

the relators.

At the square brackets 245:

Having favourable witnesses produced by the

other side, the right course was to

cross-examine them, and that was the course

he intended to take.

Then in the last paragraph, six lines down:

And, by this blunder, which really seems

to be a blunder of the most gross description,

instead of putting cross-interrogatories,

interrogatories in chief are exhibited, and

the witnesses are made witnesses in chief,

instead of being examined on cross-interrogatories.

Now, again, he was not there when the Commissioner

of the Court of Chancery - he was outside the room

when the Commissioner was actually administering

the interrogatories in chief, rather than

cross-examinining the witnesses, but he was retained

to carry on that proceeding before the Commissioner

of the Court of Chancery, and there is no suggestion

C1T22/l/VH 41 10/2/88

Giannarelli(2) ( Continued on page 41A)

in the judgment that there was any irrnnunity
because that was the conduct of a case in court
or near to the court by the Corrnnissioner. Now,
the other cases are, first of all, SWANNELL V ELLIS,

in 1823 - back in terms of time - it is a short

judgment. In SWANNELL V ELLIS, the defendants had

been employed to conduct an action of ejectment

for the recovery of premises forfeited by the

tenant's neglect of his covenant to repair. When

it came on for trial, the judge referred the
question of what repairs were necessary and their

anticipated value to an arbitrator, and the

defendant did not turn up.

Because he did not turn up to the arbitrator, the

arbitrator did not make an order of the allegation

as he would otherwise have made in favour of his

client, and his client had to pay some costs and

this was an action to recover the damages that were

incurred. Now, again it is not negligence in the

way he conducted the case before the arbitrator,

but he was retained to appear before the arbitrator

and did not turn up. As Mr Justice Parks said,

when an objection was taken to the proceeding:

(Continued on page 42)

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J;.1R. PANNAM (continuing):

I think there is no ground for allowing a nonsuit to be entered ..... for attaching any weight to the

objections which have been made. The matter

was referred to the surveyor, to say what repairs

ought to be done ..... the surveyor was prevented

from ascertaining this by the negligence of

the Defendants.

It goes to indicate that the judgment below for

damages for the plaintiff was well founded. The

next of the cases is PURVES V LANDELL, again a
decision of the House of Lords in 1845. In this

case there was, again, put in train a curious

procedure that involved the issue of a border warrant

by a judicial officer in Scotland. There was

evidently some statutory procedure that allowed

warrants for apprehension to be issued in England for persons on the other side of the Scots border

and in Scots courts for persons who were living

close by the border on the other side. There had

to be an allegation that they make - the person

involved might be living there but they were really

domiciled in the other place or had assets and

goods in the other place or otherwise closely

connected. So attorneys were retained or the

writers to the signet were retained to have issued

against a woman a border warrant in order to bring

her within the jurisdiction of the Scots courts.

The allegation was, by her, that that jurisdiction

had been improperly set in train and she had the

warrant set aside and now the person who had

instructed the law writers to the signet, or the

writers to the signet, to commence the proceedings

were suing them. Can we take the Court to page 1337,

the first full paragraph on the page:

Jn an action such as this, by the client against

the professional adviser to recover damages arising

whatever between the law of Scotland and the adviser, I apprehend there is no distinction from the misconduct of the professional law of England. The law must be the same

in all countries where law has been considered

as a science. The professional adviser has

never been supposed to guarantee the soundness

of his advice. I am sure I should have been sorry when I had the honour of practising at the Bar of England, if barristers had been

liable to such a responsibility. Though I was

tolerably cautious in giving opinions, I have

no doubt that I have repeatedly given erroneous

opinions; and I think it was Mr Justice Heath,

who said that it was a very difficult thing

for a gentleman at the Bar to be called upon

to give his opinion, because it was calling

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upon him to conjecture what twelve other

persons would say upon some point that had never
before been determined. Well then, this may

happen in all grades of the profession of

the law. Against the barrister in England, and

the advocate in Scotland, luckily, no action

can be maintained. But against the attorney,

the professional adviser,or the procurator,

an action may be maintained. But it is only

if he has been guilty of gross negligence, because

it would be monstrous to say that he is

responsible for even falling into what must

be considered a mistake.

Now, as it turned out the case went off in a point

of pleading because it was simply alleged that the

warrant was improperly issued and it was not alleged

that there was negligence that produced that result.

But, again, this is the equivalent of a solicitor
in Scotland being retained to go before a judicial
officer to have a border warrant issued and not

properly carrying out his responsibilities in relation

to that application. The judgment that was given

in the case by Lord Brougham on the appeal to the House of Lords recognized immunity for barristers but against the attorney, adviser or procurator

in Scotland an action can be maintained and that

the law of both countries was the same.

(Continued on page 44)

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BRENNAN J: Is that a false statement of the vie\'Sexpressed

in PURVES V LANDELL? It seemed to me, looking

at about point 5 of page 1337, His Lordship was

saying that in conducting suits at law that one

does not find that there is liability for negligence

unless one can say that there is an absence of

integrity or	diligence amounting to crass
negligentia.	And that would never be the case

in failing in run a point.

MR PANNAM: Well, two responses to that, Your Honour. First,

it may. It could be great negligence not to run

an obvious point in an appropriate case. It would

depend on the facts. But secondly, all of this,

of course, is being dominated by the then current

theory that it is not just a mere error of judgment.

The dichotomy is error of judgment against gross

negligence and all of that is dated in the modern

law in our respectful submission on any view.

The law is not now that a solicitor is only liable

for gross negligence or crass negligence. Negligence

is enough, whether you put the vituperative

epithet or not. And the language of the professional

liability cases in the 19th century simply reflected
that dichotomy which would not be accepted now,

in our respectful submission.

BRENNAN J:  The problem is, really, whether or not the

categories are any longer acceptable. Perhaps

the real question we have to face is whether or

not the air of immunity which might be now relegated

to a different category still exists.

MR PANNAM:  Yes. Your Honours, the only other cases

are brief that we desire to refer to and we refer

to them only because they really show the view in the 1880s and the 1870s in England that the

notion that a solicitor acting as an advocate was

immune was thought to be a bit of a joke.	They
are hardly cases of high authority.	We refer first

to a decision in 1879 of FERGUSSON V LEWIS in the

Law Journal Reports. Normally we would not dream of

referring to the Court's decision attention a

decision of the Lord Mayor's Court of London as authority for very much but we do in this case.

We are so bold to do so in this case because it

really does show the way in which this ruling that

was thought worthy of being reported in the Law

Journal at any event, reflected the view of liability

of solicitors.
There is, attached to the illegible photocopy of the Law Journal Report, a typed version of what

there appears. Mr Lewis was a solicitor and he

accepted a retainer tq act on behalf of the plaintiff

who was employed by the Aylesbury Dairy. He was:

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summoned for permitting a horse belonging

to the company to be taken out in an unfit

condition. He retained the defendant to

defend him and paid two guineas. Defendant

however did not attend the Court, though

at his request the case was put off for an

hour and a half and the plaintiff was

convicted and fined four guineas and two

shillings and costs. The plaintiff's

contention was that he was not responsible

for the state of the horse, and that if the

defence had been properly conducted he would

have been acquitted. He was therefore,

entitled to more substantial damages

and then he gave some evidence and was cross-examined.

At the bottom of the page:

In cross-examination Mr Dodd put a number of questions to the plaintiff to show that

he had been previously convicted for sending

out the horses of the company in an unsound

condition - The Recorder: I do not see what
that has to do with the case - Mr Dodd:

I want to show that even a Demosthenes could

not have prevented a conviction - No witnesses

were called for the Defence. Mr Dodd contending

that plaintiff could not possibly have escaped

conviction and thus had suffered no damage

from Mr Lewis'absence. Besides, a solicitor

when he appeared in Court as an advocate,
was placed on the same legal footing as a
barrister, and such an action as this could not lie. The reason why Mr Lewis could not

attend the Court was that he was

caught in another place.	The recorder summing
up said that:

unfortunately, many barristers accepted briefs

and could not attend the Court. It was

therefore going too far in the plaintiff

to charge Mr Lewis with gross negligence.

At the same time there had been a breach

of contract and the argument about a
solicitor's liability being the same as an

advocate's in certain cases could not, so

far as he was aware, be sustained by

precedents.

(Continued on page 46)

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MR PANNAM (continuing):  So that that is the first and

only time that we have been able to find, in

our researches, where anyone ever raised the

point, in 1879, and the only other time that

the point was ever raised, if our researches

are exhaustive and accurate, was in an even

briefer report in 1885, the decision of CLARKE V

COUCHMAN which again is a decision which,

in other circumstances, we would not refer to

the Court or rely upon but it does show the

way in which the suggestion that solicitors acting

as advocates were not liable was treated prior

to 1891, at least in England, and again, although

brief, in a paragraph, was thought worthy of
being noted in the 23 May 1885 issue of the

Law Journal:

On May 20, in the Warwick County Court,

Mr A. Clarke, of Clavedon, sued Messrs

Couchman, solicitors of Birmingham .....

to recover £13. costs alleged to have been

incurred by the defendants' negligence

in getting up a case heard at the same

Court in July of last year. The allegation

of negligence was that whereas he, at the last moment, and without any

intimation to the plaintiff, handed it

over to Mr Thursfield, another member of
the firm, through whose want of familiarity

with the facts the plaintiff was non-suited.

Mr Thursfield having stated in his defence
that he acted as advocate to the firm,

his Honour (Sir Richard Harington) said

that he never allowed that sort of thing

in his Courts. It was a most reprehensible

practice, and he wished there was some

penalty for it. Such a system was unjust

to the client and unfair to the bar. It

was much better that gentlemen who had

entered as solicitors should keep to their

own duties instead of undertaking those

which should be properly discharged by

counsel. Judgment was given for the plaintiff

for a sum to be named.

Now, a curious and humourous footnote and we refer to it for no other purpose than to note

that the only two times that the point was squarely

raised in terms, in the 19th century, prior

to the enactment of the 1891 Act, it was treated

in that way in both of those admittedly lowly

courts where the point had been raised.

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Against that background, Your Honours, we

desire to go now to the way in which the Full

Court dealt with the argument on section 10.

-Can we take Your Honours to pages 196 to 198

where the reasoning appears. It is very brief,
indeed. Prior to this point in the judgment
Their Honours had drawn attention to the background
of the legislation and the terms of section 5
and, at the top of page 196, at line 2,

Their Honours said this:

With this briefly sketched background

it can be seen that the intention of Parliament

expressed in the second sentence of section 5

was to make barristers liable for negligence

to the same extent as solicitors were in

1891 liable and it should be observed that

the section currently in force does no

more.

We now turn to the interpretation

of section 10(2) of the existing Act.
It requires us to consider the "extent" to which a solicitor was liable to his

client for negligence on 23 November 1891.

Some debate took place before us as to

the meaning of the words "to the same extent".

It was said that the word "extent" clearly

refers to a measure of liability, but this

argument cannot be accepted. It would

be meaningless to enact that a barrister

would be liable to the same measure of

liability as a solicitor, for the measure
of the liability of a solicitor in a given
case would be the damage flowing from any

negligence established.

(Continued on page 48)

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MR PANNAM (continuing):  Now, with the greatest of respect,

in our respectful submission, that is wrong and in

any event is a distortion of the argument. It

would be cormnon ground that one is not concerned with

measurement of loss, one is concerned with the

indication of the measure of the liability in

the sense of formulating a standard. We would say

that was reasonable care; the reasonable care being

the duty that was owed by a solicitor to the client,

and it is just not an answer to say, oh well, that

refers to loss and damage; it has got nothing to do

with it, in our respectful submission.

Further, the extent of a solicitor's liability to his client for negligence may

be affected by the contract which he has

with his client and although sub-section (1)

creates what might be called a statutory

contract between a barrister and the solicitor

and the lay client nothing in it suggests

that the statutory contract might be varied

by agreement to exclude liability for negligence.

And the converse is true, too, in our respectful

submission:

The words "to the same extent" should be

interpreted as meaning· "on the same basis"

or "in the same way" or "over the same area."

A solicitor was in 1891 liable to his client

for negligence not in tort but on the basis of the contractual connexion and the clear intention of Parliament as exhibed in

section 5 of the 1891 Act was to establish a

contractual nexus between a barrister and

the solicitor or client by whom he is employed.

It was contended by Dr Pannam that there

was no room in the sub-section to consider

what was the position of a "solicitor advocate"

in 1891. All that the provision requires,

he said, is an answer to the question - what

was the measure of the liability of a solicitor

as solicitor (not advocate)? The answer, it

was submitted, is that a solicitor was liable

for negligence "to his client." So, it was said,

a barrister is similarly made liable "to his

client."

The sub-section, however, does not include the words in brackets "(Not advocate)" and to

answer simply that a solicitor was liable to

his client begs the question to what extent

a solicitor was liable, or more particularly,

was a solicitor liable for negligent advocacy?

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Now, pausing at that point, in our respectful submission, the argument, which is our primary

argument on the section, does not depend upon

reading in the words "Not advocate" at all. It

simply invites a consideration of a solicitor

acting as solicitor, carrying out the normal business

that a solicitor carries out, underscored by the

addition of those words "as a solicitor," what

was the extent of his liability to his client?

Now, that does not involve measuring the loss in any particular case. It involves identifying that

he was liable for - in the middle of the 19th century -
gross negligence. We would say by 1891, in any event,
by failure to taken care in and about the professional

duties that he was retained to carry out.

So that does not involve the attribution to the

argument of the need to read in words. In fact, we

would say that the contrary argmnent involves reading in words "as a solicitor when acting as an advocate." So

that that, in our respectful submission, is not a

sufficient answer.

Mr Heerey argued that the expression "to the same

extent as" related to the standard of care

rather than to the area of liability. The

expression was said to have been used to ensure

that barristers were not to be any more liable
than solicitors had been for mere errors of

judgment. But to exclude liability for

errors of judgment would have been to exclude
from negligence something that was not negligence.

So to construe the sub-section would be to deprive

barristers (and solicitors when acting as

barristers) of an immunity from suit in respect

of work performed in Court, an immunity which

barristers were undoubtedly entitled at common

law. As a matter of statutory interpretation,

however, there is a general principle "that a

statute will not be construed to take away a

common law right unless the legislative intent	to do so clearly emerges, whether by express
to be answered, therefore, to what extent was
a solicitor in 1891 liable to his client for
negligence? Putting the question in a form
more relevant to the questions of law which we
have undertaken to answer, it is - was a
solicitor in 1891 liable to his client for
negligent advocacy or the negligent handling of a case in Court?

words or necessary implication": ..... The question

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:MR PANNAM (continuing):  Now, I make the following submissions

in relation to that passage. First of all, the

doctrine of clear words being necessary to take away

a common law right does not apply because this

was not a right that was enjoyed by the advocate

in any event. That may have been its consequence

but it was there in the public interest. It could

not be described as a personalright that was personal

to the advocate that was taken away, it is something

that was justified by reference to public interest

or not. And, secondly, in our respectful submission,

what Their Honours were doing in the Full Court

was indeed introducing additional language in the

section by saying that the inquiry was, as they put

it, negligence as a solicitor for negligent advocacy

or the negligent handling of a case in court.	Now
the section does not so provide.	And what

Their Honours' conclusion did was to send them off,

as the alternative argument had invited them to do,

in chasing a false question, in our respectful

submission, that is what was the liability of a solicitor when he was acting as an advocate on

23 November 1891. We say that is a false question

because it is not the question that is to be

addressed by the section.

Their Honours then went on to subject the cases

to which we have already referred the Court to what,

in our respectful submission, is a cramped analysis.

They refer to SWANNELL V ELLIS and say, "Well, that

was not in Court because they did not turn up".

MONTRIOU V JEFFERYS: was not filing an appropriate

document. HART V FRAME; the error was out of

court because of the preparation of the documents.

STOKES V TRUMPE~	he was not even before the
Commissioner in Chancery.	SMITH V GRANT & LESLIE:

another case of a formal matter that really did

not involve anything more than watching the

proceedings that were going on,and CLARK V COUCHMAN

and FERGUSSON V LEWIS were put to one side.

Now when one takes all of those cases and

marries them to those textbook treatments that

Their Honours do not refer to and we will not detain the Court by taking the Court to, but we have set

them out on page 3 of the outline, it is a singular

fact that when one goes to the textbooks dealing
with the liability of solicitors and attorneys,

Pullings Book in 1862, Smith's book in 1884,

Cordery, the second edition in 1888, Beven on

Negligence in 1899, White,a few years afterwards in

1892, the first edition of Halsbury and the

contemporaneous edition of Chitty, and much later
in this century, Charlesworth, we wouldsimply put
the submission and deal with it in reply, if it
is contested, there is not one word in any of those

textbook treatments of the position of a solicitor

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that he enjoyed any innnunity at all. And the

assumption is that the duty that was owed under the

terms of the contract and independently of the

contract was a duty to take reasonable care in and

about the execution of the retainer. Now there are

BRENNAN J:  Mr Pannam, statute apart - I t:hink you

ref erred to the COUNTY COURT ACT in Victoria -

in what courts did solicitors have rights of

audience?

(Continued on page 52)

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MR PANNAM:  In Victoria, or - - -

BRENNAN J: Well, perhaps you could deal with both Victoria

and the United Kingdom.

MR PANNAM: In the United Kingdom, I think the learning is

set out in a recent decision of the Court of Appeal

in a case called ABSE V SMITH.

The question arose in the Court of Appeal

only a few years ago when a solicitor sought
leave to make a statement upon the occasion of

a settlement of a defamation action and the

Court of Appeal had occasion to examine the question

of what rights of audience a solicitor in England

had enjoyed. I do not think I bought the decision

along but they were in certain aspects of the

matrimonial jurisdiction, the bankruptcy jurisdiction

before magistrates - it is in (1986) 2 WLR 322 -

and the Court of Appeal dealt with the matter in

passing on this question as to whether a solicitor

was to have that right of audience. And there

appears set out the quite limited rights of audience,

certainly not in the High Court and there is noted

that in these other jurisdictions where a right
to appear had been conferred by statute and in

the lower courts, solicitors had the right of audience.

In Victoria there was a right of audience

conferred by a section of the 1852 COUNTY COURT ACT,

which gave them a right to appear as advocates

in the County Court in cases that involved more

than £10. They, of course, had the right to appear

before magistrates and justices but not - and I
think the only prohibition was to appear as counsel

before the Supreme Court of Victoria.

So there were not many jurisdictions in which

solicitors had the right of audience, but there

were some and many of the complaints that were

made, as we have shown, related to those jurisdictions

in which they had the right of audience. So it

was less likely that the question would arise in

relation to solicitors, or the equivalent of solicitors,

than it was in the case of counsel.

To all events, what that process of the reasoning of the Full Court led to was after that,

we would say, crabbed approach to the interpretation

of the authorities,their conclusion at page 207

at line 19:

The examination we have made of the

authorities shows that there is little if

any support for the view that in 1891 solicitors

were liable for in-court negligence. In the

light of the considerations to which we

referred earlier, this is perhaps not surprising.

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Attention was drawn to the fact:

that it was never suggested in any of the

cases that an attorney or solicitor was immune

from liability when acting as an advocate

before those tribunals in which they had a

right of audience. The argument is not wholly

answered by saying that the reported cases

are all cases of negligence out of court.

Some of the negligence alleged was sufficiently

close to court proceedings, it might be thought,

to have at least attracted an arguement that

a solicitor, like a barrister, was entitled

to immunity in the public interest . The

absence of such an argument, however, is we think to be explained upon the basis of the

history of the two separate branches of the profession, the close supervision which the

Court exercised over solicitors who were

officers of the Court and the fact that

solicitors had no right of audience in superior

courts.

(Continued on page 54)

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MR PANNAM (continuing):  There is a reference to an

article -

Nor was there much, if any, discussion prior to RONDEL V WORSLEY that suggested that a

barrister's immunity was founded on public

interest: it was thought to be founded on

the absence of contract. But for whatever

reason an argument for solicitor's public interest

immunity is lacking, its absence cannot be

used to construct a positive proposition that

solicitors were in 1891 liable for in-court

negligence. Solicitors have long enjoyed

the same absolute privilege as judges,

barristers and witnesses with regard to

what is said by them in court -

citing MUNSTER V LAMB -

Why then, it might be asked, should solicitors

be liable for in-court negligence. Moreover,

there is the high authority of the House of

Lords in support of the proposition that the

same rule applies to solicitors as to

barristers, namely, that solicitors too when

acting as advocates enjoy immunity from

liaibility for work carried out in court -

citing some passages that I will take Your Honours

to -

Various criticisms were made of the passages

cited; they were said to be obiter, to have

been made without examination of the

authorities and so on. Yet it cannot be

doubted that they represent the common law

of England and we think that until some

strong and persuasive reasons for taking

a different course are advanced, they
should be followed in Victoria. For these

reasons we have reached the conclusion that

in 1891 solicitors were not liable for what

we have called in-court negligence and that	section 10(2) of the LEGAL PROFESSION PRACTICE
ACT 1958 does not alter the common law
position of barristers in relation to
similar negligence. We must, therefore,
state what the position was at common law.

Can we next deal briefly with the argument that, well,

in any event the House of Lords in 1963 in

RONDEL V WORSLEY had some things to say about

solicitors, and can we preface our reference to what

was said in the House of Lords about solicitors by

again providing the setting because it came up in

precisely the other way round.

In RONDELL V WORSLEY the argument was that after

the non-party to the contract being denial of an

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existence of a duty of care fallacy had been

exploded, the immunity could no longer be supported

on the basis of simply the absence of contract and

therefore some public policy foundation had to be

found, or not found, depending upon what conclusion

was to be reached, as to whether barristers were

to be immune or not.

Now, Their Lordships came to the conclusion that there were powerful public policy considerations that

justified barristerial immunity and they had been

confronted with an argument during the course of

the hearing of the appeal, which was this. Solicitors

have never enjoyed the immunity and because solicitors

have never enjoyed the immunity how can it be said

that there is some powerful public policy that compels

the conclusion in the case of barristers that they should have the immunity, and some of the cases to

which we have referred had been relied on by counsel.

So that, having identified the public interest

foundation for the immunity which they affirmed in

RONDEL V WORSLEY, the embarrassing subject of the

solicitors had to be dealt with and each of Their

Lordships tended, some at some length and others in

a line to say, well, if public policy is the reason why the immunity exists, rather than the absence of contract, then we suppose solicitors enjoy it too.

Now, that was the first time, in our respectful

submission, in the history of the common law, that

it had ever been suggested that solicitors enjoyed

an immunity for in-court negligence, and a reference

to the pages where those references appear in

RONDEL V WORSLEY, in our respectful submission, do

make good the submission that they are clearly obiter,

there is not a consideration of all of the

authorities, and that really it is a footnote to the

public policy foundations that were seen to support

the immunity of advocates, of barristers, and it

was therefore seen that that ought to be, or thought
to extend to advocates generally. (Continued on page 56)

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MR PANNAM (continuing):  Now, we desire to make the following

submissions. First of all, when Your Honours go

to those references in RONDELL V WORSLEY, they are not very convincing, in any event, as a canvassing of authority. But, secondly, they are, in a sense,

irrelevant to the present case because if it be

correct, as we have submitted, that no one had·

suggested in 1891 that solicitors were immune from

liability for in court negligence then the curious

feature of this statute is that it is a fixed time

statute, if one can use that expression. It is one

of those curious pieces of legislation that invite
the Court's attention to the law at an earlier point

of time.

Now, of course, that is not an unknown way

of legislating and some of Your Honours, and certainly

this Court, has dealt with the matter in the context

of the reception statutes. We have referred to,

under point 9 of our outline, DUGAN's case, the

conviction for felony debarring the right to sue

in the courts in New South Wales and TRIGWELL's

case, the stock straying on the highway case, where

the Court dealt with the question of whether, at

a particular point of time, the conditions of the

colony were appropriate to receive that part of the

common law that was subject of consideration in

those cases. Although it is true that the body

of law that may be received under those reception

statutes has got a capacity for ongoing development

and growth, nevertheless, the invitation to attend to

the date invites at least a consideration as to

whether or not, at the date that is identified,

an attempt to ascertain what the position was.

We have also referred to another case in this

Court, the TERUKAWA MA.RU which, again, is the vesting
of jurisdiction in this Court by reference to a
date in 1890 when the COLONIAL COURTS OF ADMIRALTY
ACT was enacted and so the admiralty jurisdiction

of this Court has to be ascertained by reference to

what the jurisdiction of the High Court in England,	the jurisdiction that it exercised at the passing
of the COLONIAL COURTS OF ADMIRALTY ACT, and
Mr Justice Menzies did just that in that case.

Now, the other cases that are referred to

are minor cases on statutory interpretation but, again, indicate that

in appropriate cases you look the law as it was

at the time an Act was passed. Now, here, in our

respectful submission, the language could not be

clearer. Attention is to be directed to the

extent of solicitor's liability for negligence to

a client on a named date in 1891. If we can, or

have, made good the proposition that there was a -

it had never been suggested that there was no

liability, that ..... the Full Court, the absence

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of any authority to the contrary and the avalanche

of authority in support of the proposition that

solicitors were liable for their negligence. The

mere fact that in 1963 by a side wind it suggested

that the House of Lords in order to be consistent
with the point of principle,that was the subject
of decision in that case, extended an immunity

to solicitors really would not affect our argument.

But, in any event, that is the first way in which

we would deal with that. But the second point is

is that when Your Honours look at what was decided

or what was said by Their Lordships in RONDEL V WORSLEY

it is, in our respectful submission, not at all

convincing in terms of its analysis of earlier

authority, no matter how consistent it was with the

new public policy foundations for the immunity that

were there identified.

(Continued on page 58)

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Giannarelli(2)
MR PANNAM (continuing): What we desire to do is to briefly

take the Court to RONDELL V WORSLEY and those

parts of it that deal with this question in

order to try and make good the general submission

that we have made that, really, the treatment

of the subject is a little unsatisfactory.

So, if we could take the Court firstly to the
judgment of Lord Reid, at pages 230 to 232,
at the bottom of page 230 above letter G where

His Lordship said:

I think that some assistance can be

got from looking at the record of solicitors.

They are liable to be sued for negligence

in conducting cases and they do conduct an immense number of cases in the lower

courts. But successful claims against

them for negligence in doing the kind of

work which a barrister would do if instructed

in the case appear to be very few in number. There is a reference to STOKES V TRUMPER and

another case in the Times, SCUDDER V PROTHERO,

which was a failure to interview a witness case.

I find this case not easy to understand .....

There have also been one or two Scottish

cases where a solicitor has been held negligent

in carrying out work in court -

and there, we would submit, the cases were referred

to -

which would have been done by an advocate
if counsel had been instructed. There

were also put before your Lordships .....

notes of a number of claims -

and so on. Over the page, the conclusion is

above letter D:

Finally, I must deal with a powerful

argument for the appellant to the effect

that, if it is unnecessary to protect solicitors

by giving them immunity from action by

their clients, it cannot be necessary to

protect barristers in that way. But I

would turn the argument the other way:

if it is in the public interest to protect

counsel, what good reason is there for

withholding similar protection from solicitors?

This matter has never been fully considered.

As I have already stated, there have been

very few cases in which the question could

have been raised. And hitherto, in England

at least, cases conducted by solicitors

have generally been of comparatively minor

ClT31/l/SDL	58	10/2/88
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importance. There are differences between

the position of barristers and solicitors; not all the arguments which I have adduced apply to solicitors. But the case for

immunity of counsel appears to me to be

so strong that I would find it difficult

to regard those differences as sufficient
to justify a different rule for solicitors.

I have already shown that solicitors have

the same absolute privilege as counsel

when conducting a case. So my present

view is that the public interest does require

that a solicitor should not be liable.

Then Lord Morris, at page 243, the second-last

line, after referring to SWINFEN's case:

The reasoning of the decision, if it is

correct, would seem to me to apply to the

advocate in litigation whether he be either

a barrister or a solicitor.

Then, Lord Pearce, at page 265, just above letter D:

The position with regard to a solicitor

is different.	No doubt when the law was
the solicitor was not regarded as the advocate who stood between the client and the judge.	evolved in regard to his responsibility system evolved that function normally rested
on counsel. The solicitor's main function
was not litigation. And when he was engaged
in litigation he was primarily concerned
(under contract) in employing and instructing
counsel, carrying out his advice and organising
the case behind the lines, e.g. in obtaining the evidence which counsel needed, in taking proofs from witnesses ..... In respect of
these functions it was assumed and held
that he was liable in negligence on his
contract. (Continued on page 60)

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MR PANNAM (continuing):

An attorney was held liable for failing

to instruct counsel properly or to attend

and have witnesses available when a case

was called on, and he was made to pay the

costs of the resulting adjournment. He

has been held liable for failing to examine a witness before trial ..... He has been held

liable for allowing a case to be called on

without ascertaining that a necessary witness

was available ..... a drunken surveyor ..... And

it has been held an answer to an attorney's

claim for fees that he erroneously told the
parties that they need not attend because

the case would be adjourned.

And there is a reference to FERGUSSON V LEWIS.

And at letter D:

There has been cited to us a case in

which a solicitor's negligence in advocacy

has been held to disentitle him to sue for

his bill of costs in the whole matter and

not merely for the fees relating to the

attendance which he mishandled. On an

examination of witnesses on commission when

intending to cross-examine by interrogatories

settled by counsel he negligently examined

in chief certain witnesses whereby the case

was lost.	I find the report far from clear
as to exactly what happened.	But there is

no trace in it that the question of the

immunity of an advocate was ever raised.

MUNSTER V LAM is set out which is the immunity

of words in court.	And then at letter F, on
page 267:

In my opinion, on the reasoning of that

case which extended to a solicitor advocate

on grounds of public policy the same immunity

as counsel, a solicitor, while performing

counsel's function in a court of law, would

be entitled in spite of his contract to

the same immunity from suits for negligence.

So that there is presumably a public policy strong

enough to intervene and strike out of the contract

an implied term that reasonable care would be taken -

I will return to that later - because if it is

powerful enough to strike down an implied term

it would be powerful enough, presumably, on that

hypothesis to strike out an express term, so that

if a solicitor said, "Well, I know the law gives

me an immunity but I will enter into a contract

with you to the effect that I will be careful and

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any loss that is caused. 11 Presumably the	if I am not careful I will pay you damages for
consequence of this view is that the law as a matter of illegality of contract would intervene and say,
"That's inconsistent with the proper adminstration
of justice and not an enforceable term.

DEANE J:	Dr Pannam, on your argument, is there any such
thing as a solicitor advocate still in Victoria?

MR PANNAM:  Yes, there is. I am not quite understanding

the question. Certainly it is theoretically

possible. If Your Honour is asking me is it in
fact the case, there are many solicitors who would
carry on practice in the lower courts, fewer who

would carry on practice in the county courts and

very few indeed that would carry on practice in

the supreme court, if any.

DEANE J:	Then if your current argument be wrong and a
solicitor did enjoy immunity for work as an advocate
in 1891, on your primary argument, is the situation
that the solicitor still enjoys such immunity but the barrister does not, or if it is not, where is the solicitor's immunity gone to?
MR PANNAM:	What would happen would be that you would have -

after all, in RONDEL V WORSLEY, as Lord Reid

pointed out at one part of his speech, he was

referring to the public policy to be identified by

reference to the conditions of the bar and the
solicitor's side of the profession in England.

If one went to Victoria and assumed a situation where under the statute by reference to the law

in 1891 barristers - because that is all that is

being dealt with - barristers' liability, was

created but you had a situation where, as a matter

of common law solicitor advocates contended that

they had a public interest immunity, the public

interest would be different because you could not

justify it because there would be - - - (Continued on page 62)

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DEANE J: Can I interrupt you? Assume in 1891 any advocate

had immunity, was the effect of the 1891 Act to

abolish the solicitor's immunity?

MR PANNAM:  Yes, in our respectful submission.

DEANE J: Without saying anything about it?

MR PANNAM:  It did say something about it because what it

did was, the meaning of the word "barrister"

is not to be - I should have made this point
clearer before -is the Full Court accepted and no

argument to the contrary was put in the Court below

or indeed was only faintly put before the primary

judge, the word'~arristei'in section 10(2), originally

in section 5, is, in our respectful submission,

to be understood as meaning, and clearly meaning,

a barrister and solicitor of the Supreme Court of

Victoria carrying out the functions of a barrister,

namely advocacy or whatever else.

DEANE J:  Then we have gone round the circle because my

first question to you was are there any solicitor

advocates in Victoria now, and your answer was, yes?

MR PANNAM: Well, the position now -

DEANE J: Should the answer have been no?

MR PANNAM:  No, the position is, I am a barrister and solicitor

of the Supreme Court of Victoria, I pr~ctice as

a barrister. Mr Shulkes, my learned friend

Mr Heerey's client, is a barrister and solicitor of

the Supreme Court of Victoria who practices normally

in his office as a solicitor, but who quite

frequently represents persons in magistrates courts

who are charged with criminal offences. So that

he is a solicitor advocate, he is a barrister

and solicitor acting as an advocate just as I am,

we are both entirely the same, the difference is

that I am a member of a private club recognized

by the Act and he is a member of a statutory body

whose membership is compelled by the Act.

(Continued on page 63)

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DEANE J: Well, I do not want to delay you, but I still remain

a little bit confused about how, if a solicitor

enjoyed immunity at 1891, that disappeared on your

primary argument by reason of the 1891 Act.

MR PANNAM:  No, I am sorry, Your Honour. I have not put it

clearly. If, in 1891, a solicitor enjoyed an

immunity, on the second branch of our argument we

would fail. On the first branch of the argument,

we would have a situation where a barrister was

subjected to a liability in his work as a barrister

on the same basis as, or to the same extent as, a

solicitor in relation to his normal function as a

solicitor, not a solicitor advocate. Therefore there

was, as the debates show or go to, an intention to

make the barrister, acting in his capacity as a

barrister, liable.

Now, if that is so, then it does not matter

whether a solicitor enjoyed an immunity or not	because, on any view,no one knew about it. It was
only found out later, and you cannot attribute to
anyone the converse of the proposition that the
immunity was enjoyed. There may be no authority
for the fact that it was decided that no immunity
existed; the matter was just left silent. In those
circumstances, that immunity could not continue as a matter of public policy upon proper analysis once the barrister had been subjected to the clear
liability that he was by force of the statute.

· So that if you found out in 1963 that we have

all been wrong, and solicitors really enjoyed an

immunity, that immunity would not be capable of being

enjoyed in Victoria for the very obvious reason that,

how could you have half of the profession subjected

to a statutory liability in 1891 and then it being

discovered that the other half not dealt with is
not subject to that liability because of a common law

decision in 1963 or by this Court?

DEANE J:  I am delaying you unduly, but could I just ask you

one other question because I do not think I have

quite got your mind to my problem. Assume against

yourself that, properly understood, the cases
indicate that in 1891 a solicitor did enjoy immunity

forin court advocacy in exactly the same way as a

barrister.

MR PANNAM:	Yes.
DEANE J:	Is what you say that that 1891 Act abolished the

solicitors' immunity?

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MR PANNAM (continuing):  No, I have to shrink from that

argument because - - -

DEANE J:	So on that assumption in 1892, what you call the
solicitor advocate enjoyed immunity, the barrister
advocate did not?
MR PANNAM:	On that analysis, I think I would have to make

that concession. If it was clearly established that

that was the position - - -

DEANE J: That is your primary argument, is it not?

MR PANNAM:  Yes. But, in our respectful submission, not only

was it not clearly established, there was not one

jot of authority for the proposition and that

every statement of principle about the liability

of solicitors pointed in the other direction, but

that is a different - - -

DEANE J:  I did not want you to destroy the assumptions -

MR PANNAM:  Yes. Now, Your Honours, just to tie off, if we

may, the matter of construction by attempting to see

what it was that was being attempted by Parliament,

there are some passages of the Parliamentary debates
we desire to refer to on the basis that we are

entitled to gain some support for our interpretation

from the contents of those debates by reference to

the provisions of section 35 of the 1984 Victorian

INTERPRETATION OF LEGISLATION ACT, which provides

in the interpretation of a provision of an Act

or a subordinate instrument various matters can

be looked at, and one is:

reports of Royal Commissions, Parliamentary

Committees, Law Reform Commissioners and

Commissions, Boards of Inquiry or other

similar bodies.

report s of proceedings in any House of

the Parliament.

explanatory memoranda or other documents

laid before or otherwise presented to any

House of the Parliament.

So tha4 in our submission, we are justified by- not

deriving great weight from what was sought to be

done, but by directing attention to the fact that

the call was to make barristers liable. Now on any

view, and even if we assume against the present

argument that there was an in-court immunity for

solicitors, there is clearly substantive effect to be

given to the clause because if they were liable as the

cases show for everything up to the door of court then

barristers were to be liable for everything up to the

door of court.

ClT35/l/SR	64	10/2/88
Giannarelli(2)

MR PANNAM (continuing):  So that on any view then the

SAIF ALI analysis where barristers have immunity

for intimate connection could not possibly be the

law in Victoria because on any view all of the

cases we have referred to are very intimately

connected with the conduct of cases in court.	Now,
can I take Your Honours, again, I hope, briefly

to the debates that took place in 1891 in order
to identify what it was that the legislatures, or

some of the legislatures said they were attempting

to do. Can I take Your Honours to the Second Reading

Speech on the 1891 Bill, which appears of page 157

of the volume. Mr Mason - he was later to become

speaker of the assembly, he was not a lawyer but

he had charge of the bill. He said, in the left-hand

column of page 280, five lines down:

The Bill was designed entirely in the public

interest. At the present time barristers

had no responsibility whatever to their

clients.

And then over on the next page, in the middle of the page, the line:

This Bill would not only enable a client to

do that -

that is, to have the services of the one man through

the Courts without the interposition of solicitor

and barrister -

but it would make a barrister responsible -

for something presumably. Then at page 158 on

the right-hand column at page 281 in the Second

Reading Speech about 6 lines down:

In the Country Court clients might consult

barristers direct -

on the statutory right that I indicated before -

and in that case the barristers were responsible.

So there is at least an assumption by the minister

that there was responsibility for circumstances where

there was consultation direct in the county court.

(Continued on page 66)

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Giannarelli(2)

MR PANNAM (continuing); Can I go over to Sir Henry Wrixon

who had been Attorney-General and was a Queen's

Counsel, at page 162 of the pagination in the top

right-hand corner, and in the right-hand column
two-thirds of the way down the page there is a

reference to:

In another clause -

which was clause 5 -

provision was made for rendering members
of the bar liable to actions for negligence,

and the case had been put of a counsel taking

briefs and not attending the court.

Over the next page on 286, about five lines down from

the top:

He (Mr Wrixon) would not be at all sorry if

barristers were placed under such conditions,
but the things should be done openly.

Directly a barrister of the Supreme Court was made liable for negligence - he hoped

that honourable members would bear this in

mind - a serious blow would be struck at

the power and independence of the advocate.

At present a barrister, so far from being

tempted to be guilty of negligence, was

impelled by almost every earthly motive,

including fierce competition in the

profession, to do his duty to the utmost

of his powers. Let every honourable member

recollect that he could not know when he

might not have to stand in court to defend

his own character, or something almost

equally dear. He (Mr Wrixon) would ask

honourable members to ponder these points,

and to pause before they passed a measure

containing such provisions, which would act

retrospectivley, and which had been

practically brought in without notice.

Now, the retrospectivity point explains an

amendment that had the words "in the future"

inserted, but in the right-hand column the bill was

then dealt with in committee and clause 5 was dealt

with:

Mr Wrixon moved the omission of the

second sentence -

supporting the interests of the bar, being a member

of it -

ClT37/2/HS 66 10/2/88

Giannarelli(2) (Continued on page 66A)

rendering every barrister liable for

negligence. Sir Brian O'Loghlen thought

the clause should be allowed to remain

as it stood, or the two legal professions

could never be properly amalgamated.

Besides, why should not barristers occupy

an equally responsible position with

solicitors, who could be proceeded against

for negligence, although it was only very

rarely that any solicitor was so proceeded

against.

(Continued on page 67)

ClT37/2/HS	66A	10/2/88
Giannarelli(2)

MASON CJ:  Well now, Dr Pannam, how is this going to assist

us?	This is an expression of individual views of
what should be done by particular members.	How do
we get anything out of it that is of value?

MR PANNAM:  Only this: this bill had been before the Houses

of Parliament in Victoria, I think, on four or five
or six sessions, and it had generated a good deal of
public debate. There are some direct references to

the very clause and the suggestion that it be taken

out and a justification of it, and what we would

seek to get from the debates is no more than the

fact that these very points were the subject of

debate in both the assembly and in the council and

that there was a consciousness in that debate of the

fact that it operated to render barristers liable for

negligence in circumstances where they had never been

liable before.

Now, Your Honours, of course, there is not much

weight to be placed and it will take some time to go

through it and if it is not thought to be of assistance

we are content simply to refer to and rely upon the

references that are set out in our outline of argument,

and if they be of assistance, then so be it. What

we did desire to get from them is just the flavour of
what was going on with this. very much-debated Act.

For example, if I can take the Court just to one other

passage: the Honourable George Young, who introduced

the bill into the council on the second reading -

and I will have done with it and I will not detain

the Court with any other references - I will just

take the Court to 170 on the right-hand page,

about a little over half-way down, that:

One great evil of the present system that

I think cannot be defended -

that -

solicitors are responsible to their clients

for negligence or incapacity whereas

barristers are not so responsible. The anomaly

of this system will be more apparent when

I point out that the solicitor, who may be

perfectly competent and is responsible for

neglect, must employ a barrister who may be

much less competent than himself.

ClT38/l/VH	67	10/2/88
Giannarelli(2)

MR PANNAM (continuing):

The barrister then is not responsible for
the advice he gives, and the fact that
the solicitor consults the barrister frees

the solicitor himself from responsibility.

I have not heard a single honorable member

or anybody else seek to defend this practice.

It is a practice which is founded upon

the fiction -

that fees are an honorarium.	So the very point
is taken.	Over the page, on 916, about two-thirds

down the left-hand column:

I fail to see why a barrister has not the

proper responsibility the same as any other
professional man for the performance of

the duties which, as a practising lawyer,

he may undertake.

And there are other references that we could

go to but will not because, in any event,

we say the position is clear. If I put the

debates to one side, but to simply put the Act

in its historical setting, that an Act that

created such a dramatic change in the structure

and organization of the legal profession and

had obviously excited a good deal of public

debate over many years and had been introduced
and rejected many times, was a piece of legislation

of some significance and it was introduced against

the background, on any view, of absolute immunity

for barristers and, again on any view, it is

a situation where solicitors have been regarded

as liable although the precise question may

not have been determined again notwithstanding

our argument that HART V FRAME really dealt

with it. There was never a suggestion that

they were not and that in 1891 the assumption

of the legislation was that there was to be

a liability on an equal footing.

Can we go, instead, to a few points in

support of that? Can we take Your Honours to

the points that are set out under clause 10

of the outline of our argument and deal with

the first point: that the construction contrary

to that for which we contend really is a curious

one because so far from being discomforted with

the lack of amenability to suit of barristers -

really, this Act is to be regarded as something

of a great benefit or a bonanza to barristers
because the first part of section 10, the first

sentence of section 5, gave them the right to

sue for their fees and yet, if the second section

is interpreted as preserving an immunity for the major

part of their work in court, they could sue for their

fees and yet not be faced with any cross claims, set-

off defence or counter-claim based upon their negligence.

ClT39/l/SDL	68	10/2/88
Giannarelli(2)

MR PANNAN (continuing): And the further point is that again

you have the curious result that the section has

to be read in a very funny way. Barristers are

to be liable to the same extent for negligence

as solicitors were for their negligence, namely,

not at all for in-court negligence. And so you

get an apparently important sounding piece of

legislation having its feet cut off, as it were,

or the ground cut away from it by attributing to the

last part of the section the view that what was

being attempted to be preserved was an immunity

that was then enjoyed by solicitors whe~ in our

respectful submission, what is clear from the

legislation is that what was being attempted to

be done is to subject barristers to liability and

the sophistication of the other view that the

section operates in this way clearly, and I do

not think it could be gainsaid, solicitors are

liable for work intimately connected with the

conduct of cases in court. See all of the 19th

century cases, which, if they do not carry our

proposition that they were liable for in-court

negligence, they pepper around the corners of that

proposition.

Therefore, what the section did was to say, "Well, for everything that a barrister does outside

court he will be liable in the same way that a

solicitor is with his pleadings, with his advice

and with every single thing he does up to

the door of the court because that is the extent

to which the solicitor's cases go. He will not

enjoy an immunity.'' But really, what the

legislature was trying to do was to preserve an

in-court immunity. Now that would, in our respectful

submission, require the attribution of a very

sophisticated intent and effect of the language

used that, in our respectful submission, when you

look at the simple words that are employed in

section 10(2), it is a sophistication that the words

will not bear.

DEANE J:  Why would you not look at the Act and say, "In
the context of amalgamation it abolished immunity
of status completely leaving immunity of function
untouched."?

(Continued on page 70)

ClT40/l/ND	69	10/2/88
Giannarelli(2)

MR PANNAM:	Because the words used were "liable", "legally liable", "negligence", a heading of "legal
liability", so that it would be attractive to
say, as is the basis of the Full Court's decision,
that really all the section does is to provide
a contractual nexus between the barrister and the
client leaving unaffected all defences and all
other matters of liability.  But the language of
the section, in our respectful submission, does not support that because the critical words are
"liable for negligence". If there was something
that the legislature was doing, and there may be
some debate about what it was, it certainly was
subjecting a barrister to a liability that
otherwise he would have been immune from.

In our respectful submission, it would be

a misunderstanding of the historical setting and, in our respectful submission, a distortion of the language to come to the conclusion that that was

not the substantive effect that was achieved by

the enactment of the section. It was against the

background of solicitors are, barristers are not,

let us bring the two together. Now, to say that

all that was done was to say, "Well, there is to

be a contractual nexus between a barrister and

the client that did not otherwise exist and we

will leave for future courts and generations to

work out the consequence of that contractual

relationship" really ignores the use, in our

respectful submission, of the word "liable" and

the word "negligence" in the section.

But, at all events I do not think that part

of the argument we can develop any further. They

are the submissions in relation to section 10(2) that we

have to put and we would now turn to the other

branch of our argument.

MASON CJ:  Dr Pannam, it might be convenient now to adjourn.

We will resume at 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

ClT41/l/AC	70	10/2/88
Giannarelli(2)

UPON RESUMING AT 2.17 PM:

MASON CJ:	Yes, Dr Pannam.
MR PANNAM:	Your Honours, before I go to put and attempt to

develop the second part of our argument, can I go

back to a question which Your Honour Mr Justice Deane
put to me prior to the luncheon adjournment that I had not

very satisfactorily grappled with. When one goes

to the present form of the LEGAL PROFESSION PRACTICE ACT
in Victoria it clearly reveals the scars of a lot
of history that has taken place since 1891. In

other words, the 1891 attempt to amalgamate the

profession and to have barristers and solicitors
acting in both capacities was by the beginning of
this century, in effect, put paid to by the establishment
of the coTillilittee of counsel with barristers promising,
one among the other, as a condition of their entry
and membership of that body, to become the Victorian

bar, only to practise in the character of barristers

and solicitors being controlled through their

professional body, the Law Institute of Victoria.

Although the original form of the 1891 Act

proceeded upon the assumption that you would have

barristers and solicitors and that they would, in themselve9

merge the two functions or characters, later amendments

to the legislation recognized,and presently recogn

the fact that there is a separate bar and a

separate mode of control of solicitors. So that

there is a marked distinction between the meaning

and definition of the word"barrister"in part I

of the Act, with which we are concerned, in which
section 10 finds its place and, for example, in

Part 2A of the Act, which deals - and it is headed

i'barrister' s discipline" and in section 14A there

is a special definition of a barrister.

i:

In this matter ..... "Barrister" means a

practitioner whose name appears on the	Bar roll and in relation to an alleged
disciplinary offence means a practitioner
whose name appeared on the Bar roll at
the time ..... that the offence is alleged to
have taken place.

Unfortunately, thesb parts of the legislation have

not been reproduced in that volume. But if one

then went to the very next section which is section 15

one finds the "Law Institute" established and a

definition of "solicitor' appearing, meaning a

practitioner, that is, a barrister and solicitor

who practises as a solicitor and provides for control

of persons practising the law in that capacity. And

so on with the provisions about holding practising

certificates and the insurance provisions that apply

ClT42/l/MB	71	10/2/88
Giannarelli

to solicitors, there are special definitions

for various purpose in the Act that recognize

that in the almost 100 years since 1891 that which

was desired to be achieved by the Victorian

legislature was not, in fact.

(Continued on page 73)

ClT42/2/MB 72 10/2/88

Giannarelli(2)
MR PANNAM (continuing): With that as the background and to

come back to P,art 1 of the Act with which we are

concerned which mirrors the general provisions in the 1891 Act, it is our submission that the word

"barrister" where it appears in section 10(2),

critically for present purposes, means a barrister

and solicitor of the Supreme Court of Victoria

whilst he is carrying out, whether he be a member

of the law institute or a member of the bar counsel,

whilst he is carrying out the function of a

barrister. And that was the view that indeed was

taken in the Full Court and no contention to the

contrary was put, and if I can refer the Court

to pages 194 of the appeal book, where at line 23,

where Their Honours pointed out:

It might be thought strange that in an Act which effectively abolished the distinction

between barristers and solicitors, a section

should be found dealing with the rights and

liabilities of a barrister in the future.

It was, however, common ground during the

argument before us that the words "every

barrister" wherever appearing in the section

should be taken to mean "every barrister and

solicitor acting as a barrister". This

interpretation is obviously correct.

And Mr Justice Marks at passages I will not read

but will refer the Court to at pagesl64 and 171

of the appeal books took the same view. Now, if

that be correct, and we submit that it is, to answer

Your Honour's question on the assumption that solicitors when they are acting as advocates enjoyed an immunity as at the critical date in November

of 1891, then our answer to Your Honour's question

is that their immunity was abolished because they would come within the word "barrister" in

section 10(2). because,in our submission, barrister

means, as the Full Court held, a barrister and

solicitor while carrying out the function of a

barrister.

gave to Your Honour before lunch is incorrect and Now if that be correct, the answer I

I desire to correct it. And that leads of course

to the other questions Your Honour put to me in

relation to whether the section deals with status

or function. In my respectful submission, the

words "as a barrister" and "as a solicitor" are

indicative of function rather than status.

With that in the background can we turn then to deal with the case upon the basis that our arguments

in relation to section 10(2) do not find favour

with the Court. And our alternative argument is

that, well,in any event the plea in each of the

defendant's defences is not a sufficient answer to the

allegations made in the statement of claim because as

a matter of common law in Australia the immunity contended

for should not be found to exist by this Court.

ClT43/l/SR	73	10/2/88
Giannarelli(2)

MR PANNAM (continuing):  Now, in order to develop that

submission we would first draw attention to the

fact that the matter comes up in a slightly

different context in Victoria than it does in

England. In RONDEL V WORSLEY the question was:

assume that the absence of contract is no longer

a sufficient basis for the basis of the immunity,

or for the foundation for the basis of the

immunity, therefore, are there public policy

considerations and, if so, what are they that

justify the continuation of an immunity in some

form. And the House of Lords found that there

were and they limited the extent of that immunity
in the second case, SAIF ALI, only to those actions
of barristers that were so intimately connected
with the conduct and management of a cause'iri court

that they could, on public policy grounds, be seen

to be subject to the same public policy

considerations.

Now, in Victoria the position must be

different. The question is not whether there is

a public policy exclusion of a duty of care that

would otherwise arise - I hasten to add that I

do not adopt the analysis of Lord Wilberforce in

the ANNS case which has been criticized in the

Court but, for present purposes, perhaps, it does

not matter because here there is approximate

relationship between counsel and client on any

view, we would say, and the only question is:

is there some common law immunity which would

negate the existence of a duty of care that would
otherwise arise.

But, in Victoria the question is slightly different because it does not necessarily arise

in the law of tort at all, it arises in a context

in which it could not arise in England, that is

in the context of contract because the effect of

section 10(1), in our submission, was to create

a contract, or to enable a contract to come into existence between the barrister on the·one hand and the client on the other. And the question

really is - or at least one aspect of it - is as

a.matter of the law of .contract there a public policy

to be identified that would overcome the

enforceability of the implication that would

otherwise arise out of the contract which we

would contend would be to take reasonable care.

Now, it must also cover a situation where the

parties expressly contracted between themselves

that they would take care, because take this case -

take the case of the barrister who says ''Right,

I can contract with you and I may be subject to

an immunity but I want to make it perfectly clear

C 1 T 1\L, / 1 / AC 74 10/2/88

Giannarelli(2) (Continued on page 74A)

that in my conduct of your case I undertake
to you that I will be careful and I will

properly conduct your action in court and all

steps intimately connected with it and if I do

not then I will render myself liable in damages."

(Continued on page 75)

ClT44/2/AC	74A	10/2/88
Giannarelli(2)

MR PANNAM (continuing): Because the strength of the public

policy has to be, in that context, that it is not

open to a barrister so to contract expressly,
a fortiori the implication is - the implied term

is not enforceable. So that it is not just a

question of the law failing to recognize the
existence of a duty of care, it would have to be

taken to the extent that there is a policy of the

law referable to those areas of the law of contract

that strike down as illegal or unenforceable

provisions that interfere- presumably, the
relevant head is with the due administration of

justice, the kind of problem that this Court grappled

with in the ASIS or the HAYDEN case back

in 1984', where the Court did in that case in fact

find a powerful enough public policy basis for

saying that the express term, "not to disclose," was

not to be enforced on those grounds.

The point we start with is that in Victoria,

unlike in England, the strength of the policy has to

accommodate the contractual point as well as the

tort point and that is a slightly different context.

BRENNAN J:	Is there an actual contract or a statutory contract in Victoria?
MR PANNAM:	There would be, in our submission, no reason,

having regard to the provisions of section 10(1) and

for that matter, 10(2)why the common law incapacity

that was recognized in KENNEDY V BROUN would continue

to be law in Victoria, that you could have a contract

directly between counsel and client as a matter of

common law but, even if that not be correct then, as

a matter of statute, the statutory contract, subject

to any countervailing public policy, would carry an

implication of the type which I have identified,

we would submit.

Now, Your Honours, the second point we make in

relation to these public policy aspects is that if

there is one thing that seems to be clear from

RONDEL V WORSLEY was that the members of the House

of Lords in general, all of the members of the House of Lords, and Lord Reid in particular, made it clear

that what was being considered was the public policy

considerations that affected the conduct of litigation

in the United Kingdom and was very clearto point out that

those considerations may not apply in other places.

Indeed, that very point had been made a long time

before in the Privy Council in DOUTRE's case in 1884,

which we have ref erred to in our outline under.

paragraph 13, where a Quebec barrister sued on a

contract for his fees and the law of Quebec seemed to

contemplate that there could be a contract between barrister

and client and the Privy Council · had no difficulty at all in
recognizing that as being different to the law of England, but the
English rule being referable to the practices and usages of the

English bar.

ClT45/l/VH	75	10/2/88
Giannarelli(2)

MR PANNAM (continuing): Against that background, we have

tried to avoid the detailed reference to the

extensive speeches in RONDEL V WORSLEY by
identifying what, in our submission, are the five

principles that the House of Lords, in one way

or another and in some combination or another,

because there is no unanimity in view but these

five points are the points that in combination
are capable of discrete identification in the
various speeches, that in Their Lordships' view

in RONDEL V WORSLE½ supported the existence of

of an immunity of barristers in the public
interest. And those five points were, as we have

attempted to formulate them, first of all that

a barrister owes a complex variety of duties, some

to the client and others to the court; secondly,

that prolixity and impairment of counsels' judgment

would be caused by the fear of looking over the

shoulder for a client about to sue in negligence

if you made a mistake or did not a point or put

it incorrectly; the third point being the undesirabilities

and difficultie:S of relit iga ting otherwise cone luded
cases and contemplating what, in effect, are said

to be collateral tax upon otherwise final judgments.

There is the cab-rank principle that was,

at least, applicable to the facts of RONDEL V

WORSLEY and maybe the conditions of ~ome practice

in England that barristers cannot pick and choose

clients, the £2/4/6 was offered and the wig was

chosen and there was no right to say "No" once

you had volunteered your presence in the line.	And
the last factor is the alleged incongruity in

permitting a claim by a client against a barrister

for a breach of a duty to take reasonable care

when, at the same time, it has been long established

that a barrister, together with all of the other

members of the process; the witness, the judge,

the prosecutor and all others have an absolute

immunity in the law of defamation for that which

they say in court and in the process of developing

the evidence or the argument in court.

Those policy factors, in our submission, taken singly or in combination, do not, in our

respectful submission, provide a sufficient

foundation for leaving barristers in the situation

where they alone, among professional men, are immune

from having claims made against them for negligence

in their conduct of litigation.

(Continued on page 77)

ClT46/l/ND	76	10/2/88
Giannarelli(2)

MR PANNAM·(continuing):  We desire to briefly deal and make

submissions in relation to each of those points

of policy that were identified by Their Lordships.

So far as the first one is concerned, that

is that barristers owe a complex of duty - some

to their client but that is not the exhaustive

statement; they owe many to the court to draw

attention to adverse authorities, to not unfairly

put points and all of the other principles that
bear upon the relationship between barristers

and the courts before whom they practise, in

my respectful submission that, at least taken

by itself, is not a very convincing basis for

the immunity because what it does is to confuse

in a quite fundamental way questions of breach

of duty and the existence of duty because it
would be, in our respectful submission, a complete
answer to a claim that said, "Well, you should
not have told the judge about that case. That
stood four-square in the way and we lost when

he accepted that as being the law", or "You

shouldn't have conducted yourself in that way

on the basis that you perceived it to be your
duty to the court to correct an error that

was made in my favour", that would be, on the

facts of a particular case, an answer to a

claim in negligence. The mere fact that there

might be a situation where a barrister found

himself in that situation of conflict and, contrary

to his client's interest, he made some disclosure

or provided some information to the court, that

would be a case where the court would simply

say "no negligence".

BRENNAN J:  Dr Pannam, is there any other case of a professional

duty which is owed to the client and adversely

to the client in the same way as a barrister

might?

MR PANNAM: It does not readily come to mind: the engineer,

the surgeon - - -

BRENNAN J:	The town planner, perhaps?
MR PANNAM:	It may be very much "perhaps", Your Honour.

The town planner retained under contract to

the client taking the view on town planning

matters that he would not put forward a development

because it would be inconsistent with the environment

or the landscape. It may be but, of course,

there are many ethical rules that might be

adopted in professions that would qualify
the situation that might otherwise arise where
there was simply a carrying out of instructions,

or doing that which the client desired; the surgeon

being told what to do, the engineer being told what to do.

ClT47/l/SDL	77	10/2/88
Giannarelli(2)

MR PANNAM (continuing):  There may well be ethical

constraints, but in terms of enforceable obligations

which a barrister presumably is in, where he can be

dealt with on a disciplinary basis and

penalties imposed, it probably is a unique situation,

but that is only to identify one of the features of

practise as a barrister. It does not, in our

respectful submission, put it on one side as having

anything very special about it. It is simply an

answer to an allegation that you did not properly

represent my interests.

The answer is the role that the barrister plays in the administration of justice is a little bit more

complicated than simply being the mouthpiece of the

client and pushing his barrow. There are certain other

duties that are owed to the system itself and if those

duties are fulfilled, why then no negligence claim

can be made out. It is not a reason for immunity,

in our respectful submission.

So far as the second point is concerned,

prolixity and impairment of judgment caused by the

fear of negligence claims, that is very much a matter

of assertion and impression. It ignores, of course,

the fact that all barristers in Victoria are

required to carry very substantial professional

liability cover which might tend to relax that

consideration. That is a legal obligation

recognised by the laws of the State of Victoria,

because under section 14B of the LEGAL PROFESSIONAL

PRACTIG.E ACT a barrister commits a disciplinary

offence if he infringes a ruling made and published

by the Victorian Bar Council and in the volume where

the parliamentary materials are set out, I think at page 37, there is the extract from council rules in Victoria which require the carrying of some

insurance cover, so that that is part of the

event, the point can be matched by the counterpoint	factual milieu. in which the point arises an~ in any
which is if there is the knowledge that a job not
properly done, or work improperly prepared is going to subject a barrister to a negligence claim, why
then - one would anticipate that it would be done
better rather than done in a way that is feared,
that is, take every point, do not ever think a point
is a good one or a bad one, simply put it, do not
worry about the court's time.

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Giannarelli(2)

:MR PANNAM (continuing):  One would have thought that anyone

carrying out the tasks of a professional man, knowing

that if they do not do what they are retained to

do properly, would be spurred into doing what they

were doing very well, rather than the converse

situation which might encourage sloppiness, rather

than the judgment and the brevity which is the

asserted consequence of the immunity. There is no

objective demonstration of the accuracy of the

point. It is a fea~ maybe a fear of judges and

the interference with_ their time that might because

of the situation of counsel do take every point, but

in our respectful submission, the fact that in

Victoria, as a matter of a legally enforceable

obligation recognized by the statutes of the State that there is a need for insurance, that certainly

assuages the risk. But in any event, and even if

that was not so, that is not central to our argument,

it really is a matter of assertion rather than

any demonstrated annexus between the apprehended

fear and the immunity that it supports.

So far as (d) is concerned, the cab-rank

principle, well in our respectful submission if

that applies and query whether it does in Victoria

in any event, it has got nothing to do with the

point, the mere fact that you might have a client

foist upon you, says nothing at all about the way

in which you should conduct that client's affairs,

whether he be cranky, nasty, difficult, generous

or nice is an irrelevant consideration.	He has
a case, you are retained to carry out his

instructions in relation to it and the mere fact

that your ability to say no may be constrained by

certain ethical considerations is to elevate an
ethical rule of the bar, which if it exists in its

strict form, into a factual foundation for the

existence of an immunity to sui~ and it really

does not, in our respectful submission, meet at

all the need to provide a rational foundation for

the immunity again which it is said to support.

So far· as the alleged incongruity between

permitting a claim by a client against a barrister

for negligence when he or she cannot be sued

because they enjoy a complete privilege in respect

of matters that are stated in court, in our

respectful submission, there is no logical connection

at all between the two.

(Continued on page 80)

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MR PANNAM. (continuing):  Because to have an i.mnunity for defamation based

upon an identified public policy that in a court

room the pursuit of truth and justice is best

achieved by having all of the participants, the judge,

the witness and barristers not subjected to any

risk that they might at some stage be sued in any

way in any form of action, defamation, conspiracy

or anything else, for what they say in court. It

is really only to recognize the ·'desirability of

removing the freedom of putting points and making

statements in support and against cases without which

the courts themselves would not be able to effectively

carry out their business. But to then say because

there is a public policy which we would recognize and

not gainsay in that context that that justifies

a barrister being derelict in a duty owed to a client

to conduct the case with reasonable care, in our

respectful submission, there is no overlap between

the two points, they are two entirely different
matters. One relates to the proper administration

of justice and encouraging freedom of observation,

speech and comment by all concerned in the process,

removing the risk of litigation and the other has
something to do with whether what you are retained

to do is done carefully or not.

In this Court, in CABASI V VILA, the case in

1940 that we note,all of the authorities on the

point are identified and we provide references to

MUNSTER V LAMB, where the different public policy

supporting that immunity is identified. Perhaps

I can briefly take the Court to one passage in

MUNSTER V LAMB to attempt to make that submission

good. If I might take the Court to MUNSTER V LAMB,

(1883) - there are only two paragraphs of the

judgment I desire to go to. They are on pages 603 to

604.      To the bottom of page 603 the passage begins:

Of the three classes - judge, witness, and

counsel - it seems to me that a counsel has

a special need to have his mind clear from

all anxiety.	A counsel' s position is one
of the utmost difficulty.	He is not to

speak of that which he knows; he is not called

upon to consider, whether the fact with which

he is dealing are true or false. What he

has to do, is to argue as best he can, without

degrading himself, in order to maintain the

proposition which will carry with it either the

protection or the remedy which he desires for

his client. If amidst the difficulties

of his position he were to be called upon

during the heat of his argument to consider

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Giannarelli(2)

whether what he says is true or false,

whether what he says is relevant or irrelevant,

he would have his mind so embarrassed that he

could not do the duty which he is called upon

to perform.

We interpolate that duty is to properly represent

his client.

For, more than a judge, infinitely more than

a witness, he wants protection on the ground of

benefit to the public. The rule of law is

that what is said in the course of the

administration of the law, is privileged; and the

reason of that rule covers a counsel even more

than a judge or a witness. To my mind it is

illogical to argue that the protection of privilege

ought not to exist for a counsel, who deliberately

and maliciously slanders another person. The

reason of the rule is, that a counsel, who is
not malicious and who is acting bona fide, may
not be in danger of having actions brought
against him. If the rule of law were

otherwise, the most innocent of counsel might

be unrighteously be harassed with suits, and

therefore it is better to make the rule of law

so large that an innocent counsel shall never

be troubled.

And so on.

(Continued on page 82)

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MR PANNAM (continuing): That passage, and others in that

judgment that we refer to but will not read,

in our submission, makes it clear that it is

a very different public policy that is involved;

that it directly relates to the conduct of the

case in court in the interests of the public

seeing that the court is apprised, in the cut

and thrust of battle and statement, of all

matters that are desired to be put before it

by all of the participants; witnesses, the

judge himself and the other participants.

In our submission, the two passages that

we refer to in SAIF ALI, of Lord Wilberforce

and Lord Russell, that make that point are accurate

and their point, simply, is that there is no

logical connection between the two.

DEANE J:	Mr Justice Matthew saw it as a little bit wider, at
page 594, about seven lines down:

that it is indispensable in the interest

of suitors that those who take part in

a trial should be free and independent

in the discharge of their duty, and to

that end their conduct should not be subject

to be called in question by a jury upon

a subsequent trial.

MR PANNAM: In our respectful submission, that goes, really,

no further than the principle that appears in

the passage that we state. Their conduct is
not their efficient or effective conduct of
the case on behalf of their client, including

the defammatory language that they have used

in that cause; the complaint is of a different

one: "We are not interested in what you said; we are more interested in what you did not say

in court. And what you did not put" - for example,

take this case - "you could have said whatever

you like about whoever you wanted to in this

case and we agree with the rule, and it is well

established, that you cannot be sued by third

persons .. Our complaint is of an entirely different

kind, namely, you did not put that which was

our passport to feedom - namely, section 6DD."

In our respectful submission, there really is

no contact between the two points.

The last point that was identified by the

House of Lords is, we would concede, the more

important point, and that is the general undesirability

and difficulties about, in effect, relitigating
and collaterally attacking decided cases. We
concede that that really is the point we have

to face and really is the point that the Full

Court, at the pages we refer to, pages 210 to 214,

that they rested at least one of two and the

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most important of the two policy reasons - that they

rested their judgment upon. In essence, what

we say about this is, yes, we recognize the

undesirability of these matters, generally,

but before using it as an effective basis for

the erection of an immunity it ought to be put

in context. The context we would seek to put

it into is by referring to several areas of

the law where there are, in effect, retrials

and they are justified by other policy considerations.

The first cases we refer to, exemplified

by KNOWLES in Victoria, ARMSTRONG in South Australia,

are those cases where, after the appellate process

has been gone through and a conviction has been

affirmed, as in the case of KNOWLES, there was

a reference to the court by the Attorney-General

of a reconsideration of the conviction because

it was alleged that Knowles' counsel was ineffective

and really the carelessness and negligence

of the barrister in not calling witnesses who
would have provided the foundation for a defence

of self-defence, of provocation, was not there.

That necessarily involved, because it was

found that the barrister who had the conduct

of Knowles' case was ineffective and was negligent

in the decision that was made - I use a civil

law word and that was not the language that

the court used.

(Continued on page 84)

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MR PANNAM:	It was that there were errors made that caused the Victorian court to come to the conclusion that there was a
grave risk that there had been a miscarriage of
justice. But involved in that was an evaluation of
the trial and a re-evaluation of the signficance of
the available evidence that was not called and the
possible result that might have been produced if that evidence had been available. It was said, well,
after in effect not conducting a retrial, but a detailed re-examination of a concluded conviction, there is ground for saying there was a risk that there
was a substantial injustice done and a retrial was
ordered.  So that you had not only a reinvestigation
but you have a retrial on the basis of the evidence
as it was available.  The same, too, was in ARMSTRONG,
and we provide some example, one from the the
Full Court and one from New South Wales, of cases in
the civil law where barristers have conducted themselves
in the context of a civil action for damages in a way
where the jury could have been actively misled by comments made by counsel during an address that were not appropriately corrected by a trial judge and where judgments have been set aside on that basis.

So that the conduct of counsel in both the civil

and the criminal law does sometimes fall for fairly

detailed consideration and what is relevant is the

impact of the ineffectiveness of counsel upon the

ultimate result. Now, there are other examples, too.

The case in 1945, ROBERTS V J & F STONE LIGHTING .AND RADIO LTD

that we refer to, contains a collection of the

19th century cases that deal with the liability of
witnesses, not for what they say when they come to
court, but it dealt with the liability of a witness

to be sued by a litigant who lost or had reduced

damages because the witness did not turn up and

because of the absence of the evidence, the award was

the smaller, the compromise the less, or there was a

loss.

Now, in those cases there was a recognition in the 19th

century cases and affirmed as late as 1945, that

the witness who does not come is liable, in an

appropriate case. If that be the case, that

necessarily involves going back and engaging in -

not a collateral attack - but engaging in a
re-evaluation of the case on the basis that the
witness was there and the evidence available or

the evidence was given. Similarly, HATCH V LEWIS

in 1861 is an old exap:iplefrom the 19th century of a

solicitor who was alleged not to have properly worked

up the defence of a criminal case. There was a

prosecution of a minister for gross indecency with

some girls who were under his control, and it was said

that there were witnesses available who were important

to the defence, and if called, th2re would have been

or might have been an acquittal. In HATCH V LEWIS

the case was left to the jury by the presiding judge

and damages of, I think,40 shillings awarded on the

ClT52/l/VH	84	10/2/88
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basis that if that evidence had been available then

there was a significant chance that the result

would have been different. So again, in that aspect

there is contemplated by the existing range of

legal principles, possible situations where you have

re-evaluation of decided cases. Collaterally

attack them, if you will, but that is an inaccurate

statement. It is simply analysing them to see
whether a loss has been caused, or the risk of loss

has been caused by the failure of a witness or the

failure of a solicitor.

YourHonours, the difficulty with this is really

to know when to stop, because there are so many areas

of the law where collateral attack is permitted in

fact, if not in form. There is that line of cases

we refer to next in this Court, beginning with

BLAIR V CURRAN and proceeding through JACKSON V

GOLDSMITH to RAMSAY V PIGRAM·, where there was a

very detailed consideration - we will not read from

those authorities - of the l:inri.ts of the doctrine of issue estoppel.

(Continued on page 86)

.;-

ClT52/2/VH 85 10/2/88

Giannarelli(2)
MR PANNAM (continuing): Ann you frequently get cases, I

think RAMSAY V PIGRAM was a case where there was

a police officer driving a car owned by the State

of New South Wales came into collision with another

car. The police officer had sued for damages in

a court, a defence of contributory negligence had

been raised and that had been resolved entirely

in favour of the police officer. What then happened

was the driver of the other car sued the State

of New South Wales and it was held in RAMSAY V

PIGRAM that there was no issue estoppel because

the parties were different but there was a trial
of exactly the same intersectional collision so

the same witnesses were called, the same drivers

were in charge of the car and the limits, in our

respectful submission, the very strict limits of

issue estoppel provide vivid examples of - they

are not being in any strict sense a collateral

attack of earlier decisions but a retrying of

essentially the same factual matters in just a

slightly different context.

And can we give a related example. It also

happens in all third party proceedings where there is no order made or there is no rule of court that

provides that a third party is to be bound by the

results in the principal action. So that if A

sues Band C is made a third party and there is

no order and the trial between A and B goes on

then C is not bound by any issue that arose in

the proceeding between A and Band is perfectly

free to attempt to try to relitigate all of the

issues that were resolved by the judgment in the

action of A against B. Then there is - I

put this in the centre of our argument because

it has been suject to enough criticisms, but there

is the rule in HOLLINGTON V HEWTHORN in the Court

of Appeal in 1943, a related point which makes

it clear that the subject-matter of a criminal proceeding even though it involves exactly the

same factual situation that arises in a subsequent

civil proceeding is not admissible and does not

conclude. We are conscious of the fact that that

rule has been criticized and, indeed, in some

jurisdictions in this country, I think in South

Australia and New South Wales, it has been abolished

but not in Victoria, that you can have relitigated

in the civil courts that which has been resolved

in the criminal courts and it is not even admissible

evidence.

Really, the retrial of actions and the getting

of different results after a retrial, that is, different to the first proceeding, is really

an inescapable aspect of the very notion of having

appeals and reviews. If error is made in the

ClT53/l/ND	86	10/2/88
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framework of the appellate system or the review

system then one of the outcomes of a successful

appeal is a retrial with a different result and,

finally, we would point to the fact that, in any

event, what really is involved here is not a

retrial or a collateral attack in any sense. In

these actions for damages for negligence of

barristers, really, what will be being evaluated

is the loss of a chance. If the point had been

taken, what would have been the result? Would

loss have been suffered?

Now there are various possibilities. We

desire only to refer to one passage in the judgment

of Lord Evershed in KITCHEN V THE ROYAL AIR FORCE

to refer, really, to the three situations that

might arise, if I may take the Court to that.

It is at page 574 of KITCHEN's case. Perhaps

before I go to that, the Court will recall CHAPLIN

V HICKS, the beauty contest,where the participant

lost the opportunity to participate. There was

not going to be a retrial of whether she would

have won the beauty contest or not, the damages

were assessed and awarded on the basis that what

she lost was the chance of winning, not whether

she would have won or not.

If I can take the Court to Lord Evershed's

judgment in KITCHEN's case at page 574.

MASON CJ:	What report are you reading?
MR PANNAM:	I was using the Weekly - - -

MASON CJ: In your notes you have given the reference to

the All England Reports.

MR PANNAM:  I am sorry, Your Honours. It is in the judgment

of Lord Evershed and it is -

WILSON J: It is 250 to 251 in your outline.	(Continued on page 88)
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Giannarelli(2)

MR PANNAM: It is the passage "I come last to what may

be the most.difficult point of all".

BRENNAN J:  Yes, that is on 250.

MR PANNAM: It is 250.

I come last to what may be the most

difficult point of all, namely, assuming

that the plaintiff has established negligence,

has she proved anything other than nominal

damages?

This was a case where a limitation .period had been

allowed to go by in the context of an action for

damages under the FATAL ACCIDENTS ACT.

It is necessary to say something of the nature
of the problem which (as I understand the
law) the court has to solve in determining

the measure of damages in a case such as this.

Mr O'Connor's point 1s:

that we now have to consider the question of liability as between the plaintiff and the electricity company -

her husband had been electrocuted and died as a

result of alleged carelessness of the electricity

company -

as though it were a distinct proceeding

within the present action -

and Mr O'Connor says:

that if we find on balance against the

plaintiff, that is to say, that she fails

in a claim against the electricity company

a separate and existing proceeding), then (that claim being considered as if it were

it follows that her damage is no more than

nominal. If that is the right approach, it
must follow that in any case such as the

present the result, expressed in terms of

money, is always all for the plaintiff or

nothing. I canno~ for my par~ accept that

as the right formulation of the problem.

If, in this kind of case, it is plain that

an action could have been brough~ an~ if it
had been brought, it must have succeeded,

the answer is easy. The damaged plaintiff

then would recover the full amount of damages

lost by failure to bring the action originally.

On the oeher hand, if it be made clear

that the plaintiff never had a cause of action and

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that there was no case which the plaintiff

could reasonably ever have formulated, then

it is equally plain that she can get nothing

save nominal damages for the solicitors

negligence.

I pass to the next paragraph:

The present case, however, falls into

neither one nor the other of the categories

which I have mentioned. There may be cases
where it would be quite impossible to try

"the action within the action", as counsel for the second defendants asks. It may be that for one reason or another the action

for negligence is not brought until, say,
twenty years after the event, and in the process

of time the material witnesses, or many of

them, may have died or become quite out of

reach for the purposes of being called to give

evidence.· In my jud.gnait ..... -what the court has t6 do in such

a case as the present 1s to determine waht

the plaintiff has lost by that negligence.

The question is:  Has the plaintiff lost some

right of value, some chose in action of

reality and substance? In such a case it

may be that its value is not easy to determine,

but it is the duty of the court to determine
that value as best it can.

Of course, in this case, if one may be permitted to go to the facts here, there is no difficulty at

all. There would be no retrial of anything because

it is perfectly clear that the section 6DD defence

was complete and there would have been an acquittal.

Now, of course, there may be cases where the first

two points identified by Lord Evershed do not solve

the problem. But, in such·a case as that the task

for the court is, although difficult, not an

insuperable one to say: "Well, if your carelessness

had not taken place and if that which is alleged

you should have done was done and our conclusion

is that that was negligent~ what effect would

that have had upon the proceeding,?" Now, that is

the sort of question that is not an insoluble

question. It does involve difficulties of civil

litigation that relates to alleged negligence in
criminal cases being decided upon a different

standard - balance of probabilities rather·than

proof beyond reasonable doubt - and there are some

problems of that kind, but, in our respectful

submission - - -

BRENNAN J:  But the very nature of the problem in an action

of this sort is really:  was the trial regularly

conducted. Take, for example, this case. If the

ClT54/2/AC 89 10/2/88

Giannarelli(2) (Continued on page 89A)

criminal proceedings had terminated after the

Court of Criminal Appears hearing, on your argument you would have a cause of action

and, indeed, your damages might be larger because

your period of imprisonment would have been

longer.

MR PANNAM:  Yes.

(Continued on page 90)

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BRENNAN J:  You could have recovered, at least in theory,

a large award of damages for negligence whilst your

clients were still in prison?

MR PANNAM:  That might be a theoretical possibility, but

one would have thought - - -

BRENNAN J:	But does it not point up rather the nature of the issue that alls for determination here1
MR PANNAM:	Yes, Your Honour.
BRENNAN J:	And the prospect of at least the incongruity of

allowing the record of the court to stand in

seeming contradiction?

MR PANNAM:  Yes, Your Honour, and that is the reason why,

as distinct from the other four base3 of public

policy we confront this one as being the real

problem. But the question is on balance whether

the possibility that in such a case as that which

Your Honour posits that there might be an

inconsistency between the award of damages in

the civil court and a continued incarceration under

a concluded and conclusive judgment. The question

is whether that possibility which, in our respectful

submission,is remote ,ought be used as a reason

outside the criminal law,and attacks upon alleged

negligence in criminal cases,to deny a civil

litigant a remedy where that situation could not

arise. It is a question, we concede,of balance and

it is not- we would not put to the Court a

submission with the same simplicity as we did in

relation to the first four points that there is

simply no supporting them at all - it is a problem.

The question is whether the problems that would

be thrown up by such actions are of such a
dimension and magnitude that on balance they

support an immunity which would mean that in cases

where negligence can be clearly established, loss

demonstrated, a remedy is to be denied.

It is our submission, that the possibility

that some such cases might exist can be accommodated

in many ways. One would have thought that in the

case that Your Honour posits that there might be,
just as there was in KNOWLES case upon the

demonstration on the balance of probabilities

in a civil court,there might be a fairly prompt

reference to the Court of Criminal Appeal to see

whether under the same provisions as in KNOWLES

the conviction could still safely stand and there

may be other ways. But there are theoretical problems

of the kind that Your Honour puts that we cannot

walk away from, but we simply say that they do not

provide a compelling underpinning for the existence

of a wholesale immunity that would enable all

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barristers in any case to escape, even though it

might be demonstrated that they were guilty of

negligence in the conduct and management of their

cases and causes in court. Now, perhaps more

importantly, it might be thought to be a question,

if this was a compelling public policy consideration,

whether other common law jurisdictions found those

public policy considerations to be so compelling

as to justify a rule of immunity there. Now

if we can go to the United State~ and I will not
attempt to take Your Honours to the detail of the

material that is cited in support of the

proposition that we put in paragraph 21 of our

otline, but certainly in a country like the
United States where there has been no observable
lack of enthusiasm for litigation against professionals,
there has never been a time in the history of

the United States where any immunity has been

recognized in counsel and the law in America has

been as appears from those various annotations and

references, the law has always been that an

attorney is subject to suit for negligence in relation

to his deficiencies in court advocacy.

(Continued on page 92)

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MR PANNAM (continued):  The curious thing is that when one

goes to the American materials it is hard to deal

with those materials because there is really no
paragraph, or no page, or no sunnnation that really

carries the point. It really involves going to the

classic book on legal malpractice in the United States

which is Mallen and Levit and chapter 18 deals

with negligence in advocacy, to see really the very

few cases that have ever been generated by this

basis of liability in America.

Can I take the Court only to one reference that

we have given and that by way of example. Can I take

Your Honours to the annotation that appears in

53 ALR 3d,which is directly upon the present

point. In that annotation - it is an annotation to

a Californian decision which dealt with a claim in

negligence against a trial lawyer in the United States

who allegedly failed to take a double jeopardy defence

Criminal Case", which I suppose, yet again,

in a criminal proceeding and in the result the of
apellate court found no substance in the matter but

it generated an annotation on page 731 "Attorneys

demonstrates the point that if you search long

enough in the American authorities you will find an

annotation or a collection of their cases on almost

any point, but at least this is directly upon the

present point, and what it shows is, without going

through it in detail, if I can take the Court to the

right-hand column on page 733, the first full

paragraph:

Dissatisfied clients have charged their

attorneys with an amazing variety of errors,

considering the small amount of litigation

that arises in criminal malpractice -

presumably that is malpractice in criminal cases,

rather than criminal malpractice - and the rest

of the annotation consists of a collection in 1973

of all of the then reported cases in the United

States that deal with the point and only but three

or four in the researches of the annotator that really

raise the question at all, in a country where, a8

I put to the Court before, it is apparent in other areas that enthusiasm for malpractice litigation is

quite apparent; and in the pocket supplement which

takes the matter down to 1985 there are a few

other annotations referred to but they arise in a

different area, and that is the recognition recently

by the United States that the constitutional

guarantee of the sixth amendment of the right to

effective counsel carried over to the States through

the fourteenth amendment has generated in the last

few years in America collateral attacks upon
otherwise concluded criminal proceedings on the

basis that counsel were ineffective and hence the

ClT56/1/HS	92	10/2/88
Giannarelli(2)

constitutional guarantee was violated, and they are

the subject matter of KIMMELMAN V MORRISON and

EVITTS V LUCEY, referred to in the outline.	But they
may be put to one side.

What is singular is that although there are

said to be such great difficulties and such

important questions of public policy that underlie the irrnnunity, they never seem to have worried the United States court, they have not generated any

adverse corrnnent and have not generated a plethora

of authority dealing with the point. Can we go north

to Canada and to Ontaria and refer Your Honours to just one decision, a decision of Mr Justice Krever

sitting in the Ontaria High Court in DEMARCO V UNGARO?

(Continued on page 94)

ClT56/2/HS	93	10/2/88
GiR.nnarelli(2)

'MR PANNAM (continuing): There, Mr Justice Krever had to

consider whether there was a similar immunity
in Ontario and His Honour set out all of the policy
considerations at length that were to be distilled

from the decision of the House of Lords in

RONDEL V WORSLEY and in SAIF ALI. The passage

that we desire to refer to and reply upon is

His Honour's conclusions which begin at page 406.

We refer them to the Court simply to show that at least so far as Ontario is concerned, where

this case has been accepted in subsequent cases

as stating the law of that jurisdiction in Canada,

the public policy reasons identified by

Their Lordships were not treated as being overwhelming

in their persuasiveness. At page 406 what

His Honour says is this:

It is with a great sense of deference that I

offer a few brief remarks on the grounds and

consideration which formed the basis of the

public policy as expressed by the House of

Lords in RONDEL V WORSLEY. I am only

concerned with the applicability of those

considerations to Ontario conditions and have

no hesitation in accepting them as entirely

valid for England. With respect to the

duty of counsel to the Court and the risk that,

in the absence of immunity, counsel will be

tempted to prefer the interest of the client to

the duty to the Court and will thereby prolong

trials, it is my respectful view that there

is no empirical evidence that the risk is

so serious that an aggrieved client should be

rendered remediless.

He refers to a decision in 1863 where immunity was not recognized, and 1967:

immunity of counsel was not recognized in

Ontario and negligence actions against lawyers

respecting their conduct of Court cases did

not attain serious proportions. Indeed, apart

from the cases I have cited, I know of no case

in which a lawyer was sued for negligence by

his or her client in the conduct of a case in

Court. A very similar argument is advanced

in many discussions of the law of professional

negligence as it applies to surgeons.

Surgeons, it is claimed, are deterred from

using their best judgment out of fear that
the consequence will be an action by the

patient in the event of an unfavourable result.

This claim has not given rise to an immunity

for surgeons. As to the second ground - the

prospect of relitigating an issue already tried,

it is my view that the undesirability of that event

ClT57/l/MB	94	10/2/88
Giannarelli(2)

does not justify the recognition of

lawyers' immunity in Ontario. It is not a

contingency that does not already exist in our

law and seems to me to be inherently involved

in the concept of res judicata in the

recognition that a party, in an action

in personam, is only precluded from relitigating

the same matter against a person who was a

party to the earlier action. I can find no

fault with the way in which Hagarty, CJ,

dealt with this consideration in WADE V BALL -

back in 1870 -

"Practically, such a suit as the present may
involve the trying over again of WADE V HOYT.

This cannot be avoided." Better that than

that the client should be without recourse.

The third consideration related to the

obligation of a lawyer to accept any client.

Whether that has ever been the universally

accepted understanding of a lawyer's duty

in Ontario is doubtful. In any event, I

do not believe such a duty exists in the

practice of civil litigation and that is

the kind of litigation with which I am now

concerned.

Then there is a passage that I will not read set

out from Lord Diplock.

The last consideration to be dealt with is the perceived anomaly related to the absolute

privilege enjoyed in respect of anything said

in Court by a lawyer. I confess that I am

unable to appreciate why it should follow

from the existence of that privilege that

a lawyer may not be sued by his or her client

for the negligent performance of the conduct
of the client's case in Court.	The privilege,

a fundamental aspect of the law of slander,
is not concerned with relationships among

persons.

(Continued on page 96)

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Giannarelli(2)

MR PANNAM (continuing):

It relates to legal proceedings in open

Court. The special relationship of lawyer

and client is not involved as it is, of

course, when one is considering the law of

negligence.

Thenthere is a reference to some textbooks, to

Linden on Canadian Negligence Law and at the bottom

of the page, perhaps more importantly, there is

a reference to the then Chief Justice,

Chief Justice Laskin in the Hamlyn series for 1969 and what the learned Chief Justice then said was

this:

Does the lawyer in Canada, whose fees as counsel are subject to taxation and who

can now recover them in legal proceedings,

enjoy the RONDEL V WORSLEY immunity of an

English barrister? There is no doubt that

negligence in the performance of solicitor's

work will attract liability, and in some

Provinces the contracting out of liability

for negligence is expressly forbidden to

a solicitor. Can or should a distinction

be drawn in the case of a solicitor, who

also acts as counsel in the case, between

his liability in the one character and his

immunity in the other? And what of the

position of counsel who is instructed by

a solicitor?

What case law there is in the common

law Provinces - and it is scanty - indicates

that where a lawyer acts both as solicitor

and counsel his negligence in the latter

character will be as actionable as his

negligence as solicitor. Difficult though

it may be to raise errors of judgment into

negligence, it is still more difficult to

separate what a person knows or does or ought

reasonably to know or do as a solicitor from

what he knows or does or ought reasonably

to know or do as counsel, where he fills

both roles.

Nor do I think that any rule of immunity

is justified where a person acts as counsel

only, whether in a particular case or as

a matter of general practice. The rules

of conduct that in England govern the

relations between barristers and solicitors

have no meaning in Canada. Lawyers here

are generally both barristers and solicitors,

and certainly belong to the same Law Society.

ClT58/l/ND	96	10/2/88
Giannarelli(2)

It was possible in Ontario until 1964 to be admitted as a solicitor without being

called to the Bar; since that date the rules

of the Law Society of Upper Canada provide for admission in both capacities or not at

all. In sum RONDEL V WORSLEY is based on

considerations which have no Canadian relevance.

And then His Honour continued:

It may, in conclusion, be of interest,

from a comparative point of view that, in

the United States, the Courts have not

granted immunity to an attorney in the conduct

of litigation -

and then there is a passage from corpus Juris

secundum.

To sum up, for the reasons I have given,

1n Ontario, a lawyer is not immune from action

at the suit of a client for negligence in

the conduct of the client's civil case in

Court.

And it is dispatched. We place great reliance

upon what was said, albeit extrajudicially, by

Chief Justice Laskin as indicating that the question of public policy has to arise in the context of

different countries, different circumstances of

the profession. In Victoria, at least, the 1891

Act and the provisions of section 10(2), it provides

a place, a merged profession where solicitors,

as a matter of righ½ can appear as counsel in all
of the courts of the State of Victoria. All of

those matters, in our respectful submission, show

that what is an appropriate basis for an immunity

in the United Kingdom may not necessarily provide a proper

basis for immunity here.

And we end this part of our submissions,

Your Honours, by pointing to not just an analysis

of the policy considerations that were deployed

by the House of Lords in RONDEL but by pointing

to what we would submit are powerful counterveiling

considerations which point towards solicitors being

liable for any negligence in their management of

cases in court. The first point is, I expect,

just as much a matter of an assertion by way of
submission as the stated ground for the immunity by

the House of Lords but it is at least probable

that the prospect of being held liable for negligence

would or may tend to improve the quality rather

than to involve the deterioration of barristers'

work.

C1T58/2/ND 97 10/2/88

Giannarelli(2) (Continued on page 9.7A)

The second point is that a client who does

suffer loss and damage as a result of the

negligence of a barrister should not have to carry

around a sense of injustice that, "It was that error

that caused me that loss. All of the policy reasons
that have been prayed in aid of the immunity don't

apply to my case." and our submission is in relation
to this case, which is a good example of the point,
but one has to balance the client being denied
a remedy against the situation where the barrister

is to be liable and to achieve a balance.

(Continued on page 98)

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Giannarelli(2)

MR PANNAM (continuing): We also submit that despite the

way in which Lord Pearce described the point

as facile that it is anomalous that, alone amongst

professional men and women, barristers, should

enjoy an immunity.

It is, in our respectful submission, demeaning

to our profession and serving no large interest

or any significant interest of public policy
to say that barristers carrying out their function
as barristers should be immune because of the

identified or any other grounds of public

policy and it does invite, in the community

generally, the cynical comment that lawyers

in the form of courts look after their own and

why, and what is the reason, and what is the

justification for barristers being alone immune

from suit - what is so very special about what

they do?

Our final submission is that although one can elevate what barrist~rs do into something

very special, upon analysis and comparing what

barristers do with what a skilled eye surgeon

does, or an engineer when he designs a bridge

or a building, there is, in our respectful submission,

nothing so very special or difficult or different

about the work that barristers do that distinguishes

them from the work that is performed by other

professionals and the mere fact that their task

is to persuade other minds in their client's

interest is simply to identify that which it

is that they are employed to do. It does not differentiate what they do from the task that

other professional men carry out.

In our respectful submission, there 1s

a tendency, and it is demonstrated in the judgment

under appeal, of engaging in purple prose and hyperbolae about the barristers and what they

do - it is a significant office to hold and

it is a very particular responsibility to have

imposed upon one to represent someone else in

a case, be it a trial, or appeal, or anywhere

else. But that is not to say that there should

be some immunity from error. Barristers are

paid in Victoria under the terms of a contract
substantial fees for what they do and, as a

condition of that, in our respectful submission,

what the Parliament at least indicated, if it

did not achieve, in 1891, was as the quid

pro quo for the right to sue for fees there

was to be imposed an abolition of the immunity.

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Giannarelli(2)

Your Honours, public policy points being

what they are, one cannot develop them beyond

the identification of the differences with those

expressed by the House of Lords and pointing

to the fact that the North American continent

seems to have got along over a long period of

time, in Ontario and in the United States, without

these public policy considerations causing difficulty

in circumstances where the immunity has never
been recognized. For those reasons, in our

submission -

DEANE J:	Dr Pannam, is there any learning, in terms of
the United States or those cases where an action
does lie, dealing with, for example, the problem
of - to take an example:  say the trial judge
in the present case had considered a point and
thought that this Court's judgment was a lot
of nonsense. Could he be called to say that
if the point had been raised he would have thrown
it out?  I was just wondering if there is anything
that gives guidance on it?

MR PANNAM: Certainly not in anything I have read in a

leading textbook or in any of the annotations

and, indeed, one would anticir,ate that there
would be, perhaps - "immunity' is the wrong

word but that that evidence might not be admissible.

(Continued on page 100)

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Giannarelli(2)

DEANE J:  If you take the ordinary allegation of negligence

by a solicitor or counsel, in one sense the judge

might be a rather good expert witness. I would

have thought in the American context, there was

probably some learning about whether or not he could be

called.

MR PANNAM:  The most extensive treatment of the matter is

in a different annotation in 45 ALR 2d at page 5

which deals with:_

Attorney's liability for negligence in

preparing or conducting litigation.

And it deals with the way in which these cases are

dealt with and there is certainly nothing in that

annotation that deals with the point. But we would

anticipate that, just as with jurors, in a civil
action where a jury was the tribunal, it would be

clear that the jurors would not be entitled to come

and give their evidence: "If we had heard that

material then we would acquitted," or "We would have

given the plaintiff $20,000 rather than $10,000."

That would be clear, and I think it is, in fact, a

matter of statute in Victoria, if it is not a matter
of common law. In fact, in HATCH V LEWIS, one of the

cases we refer to, there was a ruling by the court

that evidence from jurors was not admissible, but

in that case, Sergeant Ballantine, who had

respore:ibility for the defence, was called to say

why it was that he did not think that the witnesses

could say anything very useful in support of the

defence. But probably the judge and certainly the

jurors could not be called, but that only means that

it has tobe iemonstrated, on the balance of probabilities,

and their onus rests upon the plaintiff, that the

conduct or omission alleged was negligent and caused

loss. It simply provides a difficulty for the plaintiff

rather than an escape route for a defendant, we would

say.

DEANE J:  Yes. Except - I mean, there would be some areas

where the principle that a criminal trial judge has

a responsibility to put matters to the jury~ for

example, regardless of whether he is asked to.

MR PANNAM:	Yes.
DEANE J:	It would relevant. I just have a little bit of

difficulty, as a matter of logic, seeing why it

would not be relevant here if the trial judge had,

in fact, thought of the point, looked at the Act,

thought, "It is ridiculous," and then, when he came

to read the judgment of this Court, thought that it
was a lot of metaphysical nonsense that he would

never have accepted.

MR PANNAM:  Indeed, as a footnote in a subsequent trial

but before the appeal in this Court, His Honour

ClT60/l/VH	100	10/2/88
Giannarelli(2)

Mr Justice Kay came, not in such colourful language,

to that conclusion, but to that conclusion.

DEANE J: Well, I was not - - -

MR PANNAM:  The point was actually run across Mr Justice Kay

and he did not like it at all. Later on, the

ruling of this Court was contrary. In our submission,

reasons why judges could not be subpoenaed to give
evidence and jurors cannot be subpoenaed to give

evidence relate to other matters.

DEANE J:  I would think what you say is right. If you come

across something that demonstrates it, I would be

grateful to have it.

MR PANNAM:	Yes, indeed.
BRENNAN J:	Mr Pannam, could I just ask you one further

question? From something you said earlier, I rather

had the impression that the cab-rank principle was

subject to· some qualifications in Victoria, is that

so?

(Continued on page 102)

ClT60/2/VH	101	10/2/88
Giannarelli(2)

MR PANNAM:  No, what I had in mind was simply that the

rule, as I understand it of the Victorian Bar,

is the English rule which is different to lining

up in court and I will have you and there is
no choice, its brief is delivered properly marked

with a reasonable fee and a jurisdiction in

which counsel practises, that is the rule in

Victoria.

BRENNAN J: There is a duty then on counsel to take it?

MR PANNAM:  There would be an ethical obligation on counsel

to accept that brief if he was not otherwise

engaged as I understand it.

BRENNAN J:  And would it be regarded as misconduct not too?

MR PANNAM:  I would have to consult the terms of the rule,

Your Honour, and if I find that what I have said

is not accurate then I will correct it in reply.

Your Honours,they are the submissions on behalf of

the Giannarelli appellants, if the Court pleases.

MASON CJ:	Thank you, Dr Pannam.	Yes, Mr Heerey?
MR HEEREY:	If the Court pleases, we hand in our outline.	,

MASON CJ: Yes, Mr Heerey, this covers, naturally, a lot

of ground already covered by Dr Pannam.

MR HEEREY: There is, Your Honour, we will endeavour to

minimize repetition. If the Court pleases, at the

risk of obtruding the obvious, we commence our

argument by pointing out that since 1891 Victoria

has had legislation which we believe to be

unique in the common law world which has provided

that barristers are liable for professional

negligence and the only room for debate, therefore,

can be as to the extent of that liability. Now

the point we make in point 2 of our outline is

this, that is the Full Court's decision is correct,

Parliament in 1891 intended to carve out of a newly created liability of barristers for negligence a

very major exceptional qualification. Barristers,

contrary to what the common law had held in

SWINFEN V LORD CHELMSFORD, were to be liable for

negligence, but they were not to be liable for

negligence in court and that is, when one thinks

about it, a very major exception. It is comparable

to speaking of Australia except for the mainland
States; what is left is no doubt important, but
you are taking away a great deal with your exception.

Now because Parliament legislated specifically in terms of an imposition of negligence there must

have been a decision prior to the legislation,

presumably by Cabinet, to make a law to this effect.

ClT61/l/SR	102	10/2/88
Giannarelli(2)

And we pose the question, if that was so how did the

draftsmen of this legislation in 1891 think that

the reader of his legislation, courts and others

in the years to come, would get that message.

Because there was a decision to make a law which

said that barristers can now sue for fees for all

their work and they are liable for negligence but

not for negligence in court. A pretty lopsided

law,one might think, but nevertheless that must

have been the decision. Now if we can put ourselves

in the parliamentary draftsman's office in 1891

and he has got instructions to draft a law which

will give this new right to sue barristers, a new

right to sue for fees for all their work and

make them liable for negligence but not for

negligence in court and he prepares a bill in

the form in which the Act now is, what would have

been the result if some bright young person in

the arliamentary draftsmen's office got interested

in this and had a look at the draft. Would he

not have come back a few days later and said, "Well,

this new law we have got to draft giving barristers
the right to sue for the fees and making them

liable for negligence, but not for negligence in

court, I have been over to the library and I have

looked at all the cases and this new book, Beven

on Negligence,~nd I cannot find any suggestion

that solicitors have got any immunity at all. There

is a couple of obscure English cases in which it
seems to have been treated as a bit of a joke

when solicitors claimed they had some negligence."

(Continued on page 104)

ClT61/2/SR 103 10/2/88

Giannarelli(2)
MR HEEREY (continuing): "If we really want to put into

legislation the decision the government has made,

would it not be a lot easier to say that barristers

are liable for negligence except for work in court",

because there was no basis, in our submission, in

1891 for thinking solicitors had any immunity let

alone an immunity which was different from the

existing barrister's immunity which clearly extended

to out-of-court work because the leading case,

SWINFEN V LORD CHELMSFORD, was, itself, a case

of out-of-court work, the complaint was that a

compromise had been entered into against instructions.

So we say that if the Full Court is right

the words to the same extent as solicitors were in

1891 liable for negligence to their client as a

solicitor were a kind of a code. Theirpurpose was

to convey this exception to the newly imposed

liability for negligence and if that is the

conclusion·we can only submit that it is a code

of an extremely subtle and oblique nature. It

would not have been understood in that sense in 1891 and no draftsman would have intended it in

that sense. We say in point 3, developin~ on from

that, that because we are dealing with a new imposition

of liability and what is said to be an exception,

what is relevant when you look at the pre-1891 law

in searching for what Parliament's intention was in

1891. It is not whether legislators might have

contemplated a positive proposition that solicitors

were liable for in court negligence, as the Full Court
thought at page 280 of the appeal book, but on the

contrary, whether the legislators then could have

contemplated a proposition that solicitors were

immune, either for in court negligence or for any

other sort of negligence.

So because the yardstick of solicitor's liability

is only relevant here as telling us what the exception

to the barrister's liability for negligence was, the	search through the pre-1891 law should not have been
to find out when there was ever any evidence of cases holding solicitors liable for in court negligence but whether there were any cases saying that they were immune. Now, we turn briefly to the debates
and we make these, what might almost be called jury
advocate's propositions: we say that if Parliament
had meant that the use of the words"to the same
extent as solicitors" et cetera, had the practical
effect that barristers were not to be liable for probably
the most important part of their work, it would have
said so. There is no, in fact, suggestion. We also suggest, as a commonsense test, that if Parliament's intention at the time was as the Full Court's judgment suggests, this was legislation highly beneficial
indeed to barristers. It gave the valuable new right
to sue for their fees. And it opposed a new liability

ClT62/l/MB	104	10/2/88
Giannarelli(2)

for negligence, true, but in a very attenuated form. faced, not only in 1891 but stretching back at

least 10 years and probably earlier, it is a wonder

that the supporters of the bill did not say, "Well,

what on earth are barristers complaining about.

They should be welcoming this legislation." And,

indeed, it is a wonder it was not called the B~rrister's

Penevolent Act:.

Now, we also say in looking at the debates

to see if they give any assistance, that if there

was thought to be a public policy basis in 1891

for the immunity to barristers for in court work,

if it was thought - if the sort of arguments that

appealed to the House of Lords in RONDEL V WORSLEY

were present in 1891 that would justify an exception

out of this newly imposed liability for negligence,

but with one exception	to which I will come in
a moment.	Any public policy justification for

barrister's immunity was totally ignored and we do

make the comment that legislators are probably

better equipped to assess public policy than -

judges because every three years or so they are

reminded in a very practical way whether the

community agrees with their views and what is for the

community's benefit or not.

(Continued on page 106)

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MR HEEREY (continuing):  A reading of the debate shows

that nobody had a good word to say for immunity

with one exception, and it appears at page 163

of the materials book. I will not read it because

Dr Pannam has already referred to it. That

was an argument that immunity was justified

as being a means for protecting the independence

of barristers, and so forth. The only difficulty

was that it was advanced by an opponent of the

bill. Immediately following that the House

went into committee, it was Mr Wrixon, I think,
who put that argument and he immediately moved

an amendment that the cause imposing liability

for negligence be omitted and that was rejected.

Her~ we say that if there was in fact any intention

that this immunity would continue in a very

large form, was the logical place for the point

to be made but it was not.

Finally, in considering the legislation .....

debates, we make this point, that if - it was

contemplated - we will develop this a little later -

that solicitor would be increasingly ~ngaged

in advocacy work because one of the prime purposes

of the legislation was to give solicitors a

complete right of audience. So the question

of immunity for in-court work done by solicitors

was timely and topical and one would have expected

a reference to that.

Having made those points about the help

that may be obtained from the debates, we go

to point 5 of our outline and we say this:

that whatever may have been said about the link

between immunity from suit for negligence and

incapacity to sue for fees, in RONDEL V WORSLEY,

there could not be any doubt that in 1891 the

two were seeen as inextricably linked. We refer

to LE BRASSEUR AND OAKLEY, which is the classic

statement of the position, slightly after the

legislation but which was obviously reflecting
what was then thought to be the posit ion.	We

refer to the passages in a number of the speeches

in RONDEL V WORSLEY and to those in our outline

we would add a reference to page 293A to C of

Lord Pearson. Those passages all say, in effect,

this: "We can understand that it might have

been thought in the past that incapacity to

sue was a link to immunity from suit" and the

debates themselves show a specific reference
that the legislature has made to what was then

seen to be the link between the two concepts

and we refer to the page 157, 170 and page 201

there indicated in our outline.

ClT63/l/SDL	106	10/2/88
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If the two were seen as linked we submit

that it is highly unlikely that Parliament in

1891 intended to confer on barristers a new

right to sue for all their work while retaining

an immunity and that immunity would cover -

even if you credit Parliament with a foresight

1891 with the foresight of those limitations of barristers' immunity, it would cover all the barristeri work.

of the SAIF ALI intimate connection test or
the Full Court's present restriction to in-court
advocacy, and there is no evidence in the debates
that they were - it would still cover the great

bulk of what was regarded as a barrister's work.

(Continued on page 108)

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Giannarelli(2)

MR HEEREY (continuing): Point 6 in our outline invol*es

a consideration of section 12 of the Act - the

1958 Act - which is at page 31 of the materials

and with, we would suggest, immaterial alterations -

a provision to the same effect appears at

section 8(2) of the 1891 Act. And section 12(1)

has already been referred to which is the

substantial attendance provision and it derives

its historical context from the frequent

reference in the debates to what was seen as the abuses of fashionable counsel taking many briefs for the one day, only doing one but holding on

to the fees for all with the unblushing

justification which was advanced in the debates

that that was quite fair because the client got
the chance that the barrister might appear for

him and the certainty that he would not appear

against him.

So, Parliament was not to have any of that

and hence section 12(1). Subsection (2) goes on

to say this:

The question whether or not any barrister

and solicitor has given such substantial

attendance to any cause or matter in court

shall be decided by the taxing master or
other taxing officer subject to an appeal

to a judge of the Supreme Court in chambers,

and such decision shall not affect any

liaibility which such barrister and solicitor

has incurred for negligence.

Now, we would submit that the obvious practical

purpose of that is to make it clear that the fact

that a barrister or a solicitor did, not give

substantial attendance in court did not

necessarily mean he was negligent and conversely,

if he diq give substantial attendance in court

that did not necessarily mean that he was not

negligent. But how, we ask, can that provision

sit with any construction of the Act which says

that the barrister was not to be liable for

negligence in court at all. And we make the point,

also, that it is of significance that section 12

uses the very expression adopted by the Full Court

"in court". Sect ion 10, the negligence sect ion,

does not, section 12 does and subsection (2) would

be quite pointless if barristers were not to be

liable for negligence in court at all.

Point 7 really makes a point that, perhaps,

Dr Pannam has put that it is hard to impute a

suggestion that a barrister should have the right

to sue for fees for work negligently done but there

would be no right of defence, set-off or

counter-claim and perhaps we can add this further

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comment, that if there was to be a right of defence,

set-off or counter-claim when the client was sued

by the barrister for negligent work, al~ the alleged

public policy justifications would be evaded because

you would still have the problem of the barrister

thinking, "Well, should I call these twelve-witnesses

the client wants me to? Well; perhaps I had better

because if I do not and I sue for my fees I will

be met with a defence that I am negligent."

Now, at point 8 of the outline, we turn to the expression "as a barrister" in section 2.

And there·have been three meaning~ in the course

of this case to date, suggested for this. The

first is that it referred to a barrister who had

been admitted prior to 1891. That was a meaning
put before Mr Justice Marks. It was dealt with

by him at pages 159 to 163 of the appeal book.

(Continued on page 110)

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MR HEEREY (continuing): It was an argument abandoned in

the Full Court and we say no more about it.

There are two other possibilities, set out in

8(b) and 8(c) of our outline, that is, that

"barrister" meant a lawyer acting as an advocate,

in which case one can say that Parliament focused

its attention on advocates and expressly provided

that advocates should be liable for negligence

and there does not seem to be any room for any

exception.

Now, the alternative is (c) which was, in

fact, put in the Full Court on our behalf, although

it did not find its way into the judgment, perhaps

a reflection on the force and ability with which

the argument was put, but that view is this, that

when Parliament spoke of a barrister, what it had

in mind was a lawyer retained by a lawyer on the

client's behalf. That is, Parliament was not

drawing any distinction between in court or out

of court work. The barrister's liability was to extend to any work done by him just as his right

to sue was to extend to any work. And we develop

that point in this way: if we look at the 1891

Act, sections 3, 4 and 10, and they have already

been referred to, the effect of them is that from

1891 onwards there was to be no such thing legally

as what you might call a barrister solus.

But the legislation did recognize that the

separate functions of barrister and solicitor would

continue. And that is apparent from ~he provisions

of section 3 and section 4 and also from section 6

which has not been referred so far. Section 6

provides that:

No barrister or solicitor shall be entitled

to any costs whether as between party and

party or between solicitor and client for

instructions to or attendances upon counsel

he or his partner or partners being such

counsel or for attendances at court on trial

or in chambers as solicitor where he or his

partner or partners shall be also acting
and receiving a fee as counsel for the like

attendance and for the same client.

That section confirms an understanding which appeared

in the debates that although barristers would be

able to practise as solicitors and vice versa there

was to be no prohibition of the essential feature

of a barrister's function, that is, doing work

retained by a solicitor on behalf of the client

and nobody thought for a moment that Dr Madden

and Mr Purves would open up an office in Footscray

and do conveyances and draw wills and so forth.

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So we say that the distinction between

practise as a barrister, as against practise as

a solicitor, did not coincide with the distinction

between advocacy and work other than advocacy,

either in 1891 any more than it does today. Prior

to 1891, barristers' work included opinion work,

and there is express reference to that in the debates

at pages 40 and 45, and solicitors' work included

advocacy. And there is a great deal of reference

to solicitors as advocates because they had - in

fact they carried on a considerable amount of

advocacy. As well as the courts have been referred

to, they also could appear in the court of mines

which was a very important source of work in

19th century Victoria as one can imagine.

(Continued on page 111)

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MR HEEREY (continuing):  One interesting historical sidelight

is that a member of the House that debated this

legislation in 1891 was Mr David Gaunson who was

Ned Kelly's solicitor, who had defended Ned Kelly

in the police court but was prevented by the law

at the time from representing him at the trial,

and there has just been a book recently published

by Mr Justice Phillips of the Victorian Supreme

Court that argues that had Kelly had reasonably

confident representation at his trial he had quite

a fair chance of acquittal, and there is reference

to the Kelly trial in the debates. Gaunson went on

to have other distinguished clients, including

Mr John Wren. So Parliament was very conscious of

the fact that solicitors did advocacy and barristers
did opinion work.

Now, therefore, if that is right, Parliament did not see the question of inununity or capacity to

sue as relating to the particular work done,

whether it was advocacy or otherwise, but rather

the way the doing of that work was organized, that

is retainer via solicitor or by the client direct.

Now, this was the true distinguishing badge of the two separate professions in 1891, even though there were certainly some departures from that practice in

the country.	The rules seem to have been quite
relaxed once you got out of Melbourne.	The rule

that barristers could only act on the retainer via

a solicitor seems to have been pretty firmly

established in England by about the middle of the

19th century. It might not have been as firmly

established in Ireland, but in England, certainly,

it was never a rule of law. It was no more than

a rule of ethics or etiquette, but nevertheless, it

was imported into Victoria and it is true that one

will find in the debates references to Dr Madden -

to, as I have said, the barristers in the country

seeing clients direct, and Dr Madden seeing
clients direct, and the first bar rules in, I think,

either the 1884 bar association which sprung up

momentarily, or the 1892 one had a rule that it was

all right to see a client direct provided process

had not been issued and once process had been

issued, well there had to be the intervention of a

solicitor.

But understood in context, all these are

treated as an exception to the general rule and

this intention, we suggest, makes sense when one

considers that the prime initial purpose of the
legislation was to enable the direct retainer by

the client of the barrister. We would refer to

pages 40, 44 and 45 of the materials which go back

to the 1881 debates and one might add also in the

context that there is frequent reference in the

debates to a client having to retain a solicitor

to get an opinion from a barrister. We refer to

pages 47 to 48, 51 to 52, 59, 68 and 69, and what

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was said therefore in support of this legislation

which was designed to do away with a divided

profession is that this system multiplied work and it

concealed responsibility because it meant two lawyers

had to do the job at great expense to the client where
only one was really necessary, and one American
commentator was quoted as saying, "If you want a

shave what is the point of getting lathered in one

shop and shaved in the next."

So in that historical context we also look at

the immediate textural history of the Act which we

say, if one engages in a small exercise in legislative

archaeology provides some support for our argument,

and it is set out at page 1 of the material books,

the material. There, first we have set out
the form in clause 5 of the bill as it was introduced

into the lower House.

(Continued on page 114)

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MR HEEREY (continuing): Incidentally, there was a bill in

1884 which did not succeed but was in the same

form. That provided that:

Every barrister shall in future be

liable to maintain an action for and

recover from the person on whose behalf

he has been retained, his fees, costs

and charges for any professional work

done by him. And every barrister shall

be liable for negligence to the person

on whose behalf he has been retained to

the same extent as a solicitor is now

liable to his client for negligence.

Now, we give a reference there to page 163 of the

materials, which shows where the bill is introduced.

There was an amendment made in the upper house and

that is set out in paragraph 2 and that int:Eodu.ced the

words - after the words, "the" in the second line: Solicitor or client respectively, by whom

he has been employed -

tha t is for recovery of fees et cetera, and the

second limb remains unchanged -

then every barrister shall be liable to the

client on whose behalf he has been

employed.

Now, the reason for that amendment, although the debates show the proposer as being a little

disingenuous ..... , one would obviously think

was designed to give the barrister the benefit of

being able to sue the agent, · ~e, the solicitor,

as well as the principal, the client, because absent

such a provision, if he sued in contract which, as

we argue, plainly was to be the position from now on,

on ordinary principles	the agent would,not have
been liable.so·r think there would be common agreement

at the bar table that a very wise and just amendment

was made.

That is not relevant for present purposes. What

is relevant, though, if you look back at the form of

the bill before this amendment was made, what strikes

you is the use of the expression from the person

on whose behalf he has been retained when you are

talking about barrister and client. One asks why
does it not simply say "from the person by whom he

has been retained." Now, we suggest the reason is that

when, in 1891, you were talking about barrister and

client, it necessarily implied that there was another

third person involved in the relationship, namely, the

solicitor, because it was of necessity that

there be a solicitor there who would be doing the

retaining on behalf the client.

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MR HEEREY (continuing):  So, we say that the use of the term of

"as a barrister" in section 5 in the 1891 Act was

directed towards the two distinctive features of

pre-1891 practice as a barrister, that is an

incapacity to sue for his work - all his work and

immunity from negligence for all of his work, as

distinct from the pre-1891 solicitor, who could

use for all of his work including advocacy and

there is no suggestion that solicitors could not

sue for advocacy work and, we would submit,

plainly was liable for negligence for all work

including advocacy. There was, in the words of

one of the members to be equality all round. And

we note that section 5 did not use the term "advocate" and did not speak of in-court or out of court and for the simple reason, we suggest,

that Parliament simply did not think in those
terms. We add a reference to CRASE V DOWNEY,

(1982) VR 803, which is a recent case dealing with

taxation of costs which is consistent with our

argument.

Now, we say, if this view of the meaning of "as a barrister" is correct then clearly

Parliament was not drawing any distinction between

in-court and out ot court work, and a barrister's

liability was to extend to any work done by him

just as his right to sue for his fees was for

any work. And on a reading of the debates it does

become clear that there was a strong element of

cast and class in all this agitation - that there

was a great deal of resentment of barristers.

Somebody said that no solicitor could get into

a decent West End club in London and that a

solicitor had been black-balled from the Oxford and

Cambridge Club. And one of the last ditch opponents

of the bill at page 219 of the debates stood up

for the bar and likened the members of the bar to the forest

giants of Gippsland towering into the sky as

compared to the solicitors who were like the dull

and dreary Mallee scrub.

Now it is not surprising in that historical

context, we would suggest, that it was seen in tenns,

not a particular piece of work that was done or not

done, because as we have said the same work was
done by either side. Now we wanted to put some

submissions, which we do in paragraph 9 of our

outline, about the expression "to the same extent as".

Now we have two propositions as to the meaning of

that expression both of which support the appellant's

case.

(Continued on page 116)

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MR HEEREY (continuing:) Firstly, they can be read as relating

to the standard of care rather than the area of

liability. In the 19th century the liability of

professionals, and especially solicitors, was

formulated in terms of gross negligence or crassa

negligentia - and we refer to GODFREY V DALTON,

PURVES V LANDELL, BULLEN V HOOPER and the first

edition of Beven on Negligence at pages 779 to 805.

Now, it may be that the distinction between

negligence and gross negligence may not have been

all that different from the law today. It may,

in truth, have been no different from the distinction

which we draw today between a mere error of judgment

on the one hand and negligence in the other, or,

there is a suggestion in Bevan that crassa negligentia

meant something different, it meant a failure to use

such skill as may reasonably be expected from a

man's profession. We give some references to the

second edition of Beven at pages 1424 to 1425 and

the third edition at pages 1182 to 1183. But,

in any event, it is very understandable that Parliament

in 1891, who was imposing this new liability, would

want it to be no greater and no less than the

burden that already existed for solicitors. And

by simply providing that barrister would be liable

for negligence the view might well have been taken

that barristers might have ended up with some

stricter liability than solicitors had. There is

some support for that view at page 262 of the

materials.

We do refer to what the Full Court said on

this point at page 196 line 25 of the appeal book.

The Full Court said that:

The words "to the same extent" -

meant -

"on the same basis" or "in the same way"

or "over the same area".

Those expressions, we would suggest, are not synonymous one with each other. The expression

"in the same way': perhaps, corresponds with the
connection we put. Now, the alternative meaning to

be given to the expression "to the same extent as",

which we refer to in 9(b) ofi our outline, is that it

had the purpose of plugging a gap in the existing

law and, that is, that Parliament wanted to change
the situation where a client could fall between two

stools. Before 1891 if a solicitor retained a barrister

either for opinion or for some appearance and the
barrister was negligent then the client could not sue

the solicitor as the work the solicitor had done,

on this assumption, had not been negligent. He could

not sue the barrister because the barrister· was iIIIlilune,

whether for advocacy work or otherwise.

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MR HEEREY (continuing): So, Parliament therefore wanted to

plug this gap and make the barrister liable for

his work, whether it was opinion work or advocacy,

in the same way, to the same extent, as the solicitor

was liable for the work he did as a solicitor,

As was said at page 163 of the debates:

The public should have the same power

against barristers and solicitors.

And we would also refer to page 170.	Now, it would
work this way, we would suggest.	A solicitor

doing a conveyance or drawing a will, no barrister

involved, always was liable pre-1891 and he
continued to be liable after 1891 and we would

submit, also liable if he acted as an advocate in

the police court just like Mr Gaunson did. Now,

if the solicitor retained a barrister, whether for

advocacy or opinion, the solicitor would still be

liable at common law for the work he did. Perhaps

if he did not serve subpoenaes on witnesses or

did some other part of the solicitor's job in

connection with the case and as a result of the

legislation the barrister would be liable in

negligence for his part of the work.

So one then sees an underlying purpose, to

avoid not only the multiplication of expense but
the concealment of responsibility. Po:fnt 10
of our argument deals with the analysis of the

19th century cases about in-court negligence and

we respectfully adopt the analysis of those

cases by Mr Justice Marks and by Dr Pannam.	And
we do put some reliance on the passage in
RONDEL V WORSELY at page 231B, where there is

reference made to some evidence which was obtained which showed

that quite routinely insurers of solicitors paid

out on claims for negligent advocacy.

(Continued on page 118)

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MR HEEREY (continuing): It may be that they were not many

in number. I think, from memory, it was about

8 out of 300 samples - we are not told over

what period it extended. But if, as this legislation

requires us to do, specifically in terrrS, requires

us to be concerned with what the law was perceived

to be in 1891, it is quite an interesting point,
we would suggest, that insurers as late as the

1960s were cheerfully paying out, and not suggesting

that there was any immunity that solicitors

share with barristers. If it is convenient

to the Court, Your Honours?

MASON CJ:  Yes, Mr Heerey. We will adjourn until 10.15

tomorrow morning.

AT 4.13 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 11 FEBRUARY 1988

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