Hicks v Slater and Gordon Ltd

[2023] VCC 2223

IN THE COUNTY COURT OF VICTORIA

AT WANGARATTA

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-21-05162

VIVIEN HICKS	Plaintiff
v
SLATER AND GORDON LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Wangaratta
DATE OF HEARING:	8-10, 13-14 November 2023
DATE OF JUDGMENT:	4 December 2023
CASE MAY BE CITED AS:	Hicks v Slater and Gordon Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 2223

REASONS FOR JUDGMENT
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Subject:Claim for damages for alleged negligence by solicitors          

Catchwords:               Personal injury proceeding before judge and jury – proceeding dismissed based on finding by jury of no negligence or breach of statutory duty – allegation of negligence against solicitors, instructing senior and junior counsel by reason of alleged late commissioning of ergonomist’s report determined not to be put into evidence by counsel and resulting in Jones v Dunkel comment from defendant’s senior counsel – allegation of failure by solicitors to carry out instructions to challenge any juror with a particular surname – allegations as to breach of instructions regarding jury empanelment not made out – allegations relative to expert report covered by advocate’s immunity – proceeding dismissed

Legislation Cited:      Occupational Health and Safety Act 2004 (Vic); Evidence Act 2008 (Vic); Juries Act 2000 (Vic)

Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No 8) [2014] VSC 567; Hicks v Slater & Gordon Ltd (Ruling) [2022] VCC 627; D’Orta-Ekenaike v Victoria Legal Aid& Anor (2005) 223 CLR 1; Giannarelli & Ors v Wraith & Ors (1988) 165 CLR 543; Goddard Elliott (a firm) v Fritsch [2012] VSC 87; Attwells & Anor v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1; Johnson & Ors v Perez (1988) 166 CLR 351

Judgment:                   (1)  Proceeding dismissed

(2)Costs reserved

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	Mr P Over	Colin Biggers & Paisley

HIS HONOUR:

Background

1On 23 August 2016, the trial of a proceeding between the plaintiff, Ms Hicks, and her former employer, law firm, Faram Ritchie Davies, came on for hearing in this Court before his Honour Judge Dyer and a jury of six.  Ms Hicks was represented by Mr C.W.R. Harrison QC (as he then was) and Mr N.R. Bird of counsel, who were instructed by the defendant law firm, Slater and Gordon Ltd (“Slater and Gordon”).   The defendant was represented by Mr P. B. Jens (now KC) and Mr J. L. Batten (Court Book (“CB”) 1005; 993-4).

2The claim was for common law damages for personal injury which Ms Hicks said she sustained during the course of her employment by the law firm as a legal secretary at its office in Shepparton. In evidence-in-chief, in answer to Mr Harrison, Ms Hicks gave a detailed description of her workstation and her work arrangements (CB 1077-1081). Ms Hicks said that:

“On the Saturday before the injury when I was carrying some horse rugs, summer horse rugs. …out of the house, I had them draped over my left arm and the leg strap got caught on a door jab [scil jamb] and twisted me around to the left. …I got pain in the upper shoulder because it was basically my arm that got jarred backwards so it was my upper back behind the shoulder area.” (CB 1084, Lines (“L”) 17-26)

3She said she mentioned this incident to the firm’s office manager, Mr Les Martin (CB 1084, L10-13; 1085, L14-19). She said she told Mr Martin that if she needed to get anything out of the compactus she wished him to get it for her because she “didn’t want to further injure that area trying to manoeuvre the compactus which [she] found very hard.” (CB 1085, L17-19)

4The injury for which Ms Hicks sought damages was sustained, she said, “By stretching across to the printer and reaching for a printing job…” (CB 1087, L21-21). She said she “felt a pain that [she had] never felt before in [her] lower back” (CB 1087, 29-30).

5She told the court “The pain just was overwhelming but it was all across my lower back [on]…Both sides.” (CB 1088, L2-4] She continued:

“Well, I couldn't move for a while. My body just froze up. I was extremely scared. I sat there, there was nobody within view that I could have [told] …so I sort of just tried to calm myself down, sat myself back up, sat there for a while and thought, ‘Oh, weII, I’ll just keep working and see how things went’.” (Ibid, L20-28)

6She said she continued working for about an hour but the pain was getting worse. She said she “realised that [she] was in trouble.” (CB 1089, L1-2) She spoke to Mr Faram (one of the firm’s partners), telling him that she “couldn’t continue to work and needed to go home.” (Ibid, L4-5)

7Ms Hicks had told the court that she worked at “a U-shaped work bench” (CB 1074, L4). Her work included transcribing taped dictation (Ibid, L28-29). She said that she had to access the printer at her workstation:

“Forty, 50 times a day. It was just constantly running that printer with work. David [Faram] also sent printing private – you know, from his office directly to that printer. …So I would be collecting his printing, as well as the work that I was doing. …So it was virtually running nonstop.” (CB 1079, 10-16)

8Ms Hicks told the court that the bench height was not adjustable and for “[her] to be able to reach the keyboard [of her computer terminal], [she] needed to have the seat at its maximum height. …I had legs dangling in mid-air.” (Ibid, L20-24)

9In his opening address to the jury, Mr Harrison said:

“The employer owes duties to provide safe place of work and safe systems of work and those duties are what are called non-delegable. …The employer controls the workplace. The employer sets a time of work. The employer sets the task of work. The employer provides the equipment.  The employer provides the entire system…the employer is obliged to provide a safe place of work.” (CB 1039, L17-30)

10Mr Harrison continued:

“So it is our case that the employer breached the duty of care that it owed to the worker by failing to investigate and assess and provide a safe place of work, in terms of this very, very simple operation…” (CB 1040, L26-29)

11The defendant firm had alleged contributory negligence on Ms Hicks’ part but that was withdrawn. (CB 1465, L5-9) Ms Hicks was stretching to reach.  A printer had been specifically provided for her use to save her from walking to another area of the office and competing with others for the use of the printer, et cetera. (CB 1216, L7-31)

12Senior counsel for the defendant, Mr Jens, put it to Ms Hicks that on her account she would have been accessing the printer “on average, six times an hour”, and Ms Hicks replied “That would be possible.” (CB 1264, L8-9) That is, “once every ten minutes” (Ibid, L10).

13Mr Jens put it to Ms Hicks that she could have avoided stretching by moving her wheeled chair over the carpet. He sought to demonstrate the motion by moving his wheeled chair, as he sat in it, backwards and forwards in the courtroom (CB 1281-2), earning himself an objection and a rebuke from the judge.

14Mr Jens said “it would be a very simply [scil simple] matter for you, I suggest, to push your chair backwards…and turn it” (CB 1283, L8-11). At the close of his examination, Mr Jens said:

“in a situation like this, that you go, ‘Well, I push the chair back and I stand up and take the document off the computer,’ do you say that would be an unsafe system of work, according to you?” (CB 1284, L30 – 1285, L3)

15Ms Hicks replied “I don’t know, because I haven’t tried doing that, so I can’t comment.” (Ibid, L3-4)

16The full usual range of witnesses were called, including extensive medical evidence.

17Mr Jens led evidence from one of the other secretaries working at the firm, Ms Kellie Douglas, that “the legal secretaries and those who use the printer get up and physically move over to the printer…to retrieve the…document that’s been printed” (CB 1346, L24-27).

18Faram Ritchie Davies’ office manager, Mr Les Martin, described the event of 30 August 2010, when Ms Hicks said she injured her back at work, as follows. Mr Martin said he was called to see Ms Hicks, who told him she “was going home, had a bad back”.  He said “What happened?”, and she said:

“I’ve got horses, and over the weekend I was throwing a saddle over the – the rail and I caught my arm in a stirrup, or a saddle strap, and when I swung around, it pulled me backwards and I hurt my back.” (CB 1370, L26-31)

19Ms Hicks’ evidence on this point was as set out at [2] above.

20In describing a conversation that Ms Douglas said she had with Ms Hicks on the morning, and before the incident in which Ms Hicks says she was injured, Ms Douglas said “I can’t recall whether it was a saddle rug or a saddle, but she said something about she did something on the weekend and she buggered her back.” (CB 1348, L26-28)

21As will appear, a major issue in this proceeding is the circumstances in which an ergonomist, Mr Mark Dohrmann, came to be retained as an expert witness for the plaintiff’s case but not ultimately called. 

22In his closing address, Mr Jens referred to:

“an inference that it is open to you to draw in this case about the expert Dohrmann yesterday and how he hasn’t been called. And we would submit to you, members of the jury, an inference really is just an unavoidable conclusion from the facts that have been demonstrated to your satisfaction…” (CB 1465, L28 – 1466, L2)

23The previous day, in an earlier part of his address, Mr Jens said, as to Ms Hicks’ workstation:

“we respectfully submit to you that it is a totally appropriate work station.

And that sitting in the wings, was a specialist engineer ergonomist and he’s not called. We ask you to draw an inference he wouldn’t have helped.” (CB 1448, L17-22)

24In one of its most frequently cited decisions, the High Court of Australia held that failure by a party to litigation to call at trial, a witness whom the litigant might have been expected to call, in the absence of some explanation, may find himself or herself subject to an inference that the absent witness’ evidence would not have helped the litigant’s case (Jones v Dunkel (1959) 101 CLR 298).

25The jury was required to answer three questions. The first two relating to the liability of Faram Ritchie Davies to Ms Hicks for breach of duty and the third relative to damages.  The third question needed to be answered only if one of the first two was answered “yes”.  The questions and the jury’s answers were as follows:

1.Was there negligence on the part of the defendant, Faram Ritchie Davies, which was a cause of injury, loss and damage to the plaintiff? – Answer “No”.

2.Was there a breach of statutory duty on the part of the defendant, Faram Ritchie Davies, which was a cause of injury, loss and damage to the plaintiff? – Answer “No” (CB 3041)

These answers were given after a twenty minute retirement (CB 994, [28].

26In light of those answers, the jury did not proceed to assess damages since that issue was not reached.  Ms Hicks was ordered by the court to pay the defendant’s costs of the proceeding.

27Mr Dohrmann was commissioned or retained by a letter from Slater and Gordon dated 28 June 2016 from Mr Tim Jackson, practitioner then in charge of Ms Hicks’ file (CB 1767, [7]). The letter sought a report and comment from Mr Dohrmann, a registered engineer and certified professional ergonomist, on:

(a)   the system of work in which the client [viz Ms Hicks] was engaged in at the time of injury;

(b)   the setup of the desk area and location of the printer;

(c)   what alternate steps, if any, were available to her employer to remove or minimise those dangers.

28Mr Dohrmann was not asked to carry out an onsite inspection (CB 1768, [7]). Mr Dohrmann was also provided with Ms Hicks’ telephone number should he wish to confer with her (Ibid, [9]). Mr Dohrmann sent an email dated 12 July 2016, confirming that he was able to do the report and stating that he would contact Ms Hicks (Ibid, [10]). His charges were nominated at:

“a)$3,500 plus GST to be paid on completion but prior to provision of the report; or

b)alternatively, by two instalments of $2,100 plus GST with the first instalment on completion but prior to provision of the report and the second at settlement of the matter noting a discount if paid within two years from the date of the original invoice.” (Ibid, [11])

29Mr Dohrmann conferred with Ms Hicks by telephone on 25 July 2016 (Ibid, [14])  for a period of approximately 45 minutes.  He provided a report dated 28 July 2016 (Ibid, [15]). The Dohrmann report appears at Court Book 1777-1797 as an attachment to an affidavit by Mr Dohrmann on 28 August this year.

30Mr Dohrmann set out in paragraph 4 of his report (CB 1781-1783) some 36 facts which he assumed for the purposes of reaching his conclusions and expressing his opinions.  Many of those were matters canvassed in the evidence before Judge Dyer and the jury.  It has not been suggested that any of these assumed facts was invalid or has been invalidated.  At paragraph 5.1 (CB 1783), Mr Dohrmann said “No view has occurred”, and that the report was based on “briefing material supplied and an interview with your client.” 

31At paragraph 5.2, Mr Dohrmann stated:

“I am satisfied that the information I have obtained or assumed is sufficient to justify the opinions given in this report. However, a view may ultimately be advisable, should the matter proceed to a hearing.” (Ibid)

32Paragraph 6 of the report, headed “Standards” (CB 1784-1789), surveyed the provisions of the Occupational Health and Safety Act 2004 and regulations made under that Act and incorporated standards to the extent that these provisions were perceived by Mr Dohrmann and was relevant to the matter before him.

33Paragraph 7 (CB 1790-1795), headed “Discussion and analysis”, sought to apply the standards which Mr Dohrmann referred to and summarised in the previous paragraph to Ms Hicks’ case. 

34Immediately prior to the trial, in August 2016, Mr Tim Jackson was relinquishing control of Ms Hicks’ file upon leaving Slater and Gordon’s Wangaratta office and transferring to its Melbourne office. He was succeeded by Mr Grahame Ingleton, who began work at Slater and Gordon in Wangaratta in early August 2016 (CB 1585, [6]).

35On 4 August 2016, at 3.04pm, Mr Ingleton sent an email to Mr Jackson stating:

“Have spent a good portion of the day trying to get across this file [viz Ms Hicks’ file].

Couple of things:

·    Can you explain more about what you were thinking with point 1. The      [Dohrmann] report seems to me to be helpful and address the main          points we need it to. What do you think is missing from the report?

·    In regards (3) and (5) I will give instructions to chase a response, unless    there  is a tactical reason you don’t want to.” (CB 2371)

36Mr Jackson had sent an email on 3 August 2016 at 12.47pm, raising some nine points for Mr Ingleton’s attention, the first of which was “Review the expert report, do we need an addendum report?  Specifically asking him to comment on the writ pleadings?” (Ibid)

37In cross-examination, Mr Ingleton described himself as “underwhelmed” by the report.  He made a note of a telephone conversation that he had with Mr Jackson on 4 August 2016, the first paragraph of which stated “Addendum Report RE DOHRMAN [sic]?”  He indicated that he, Mr Ingleton, wanted to consider the Dohrmann report’s failure to mention Ms Hicks’ Statement of Claim (CB 2373).

38Slater and Gordon prepared a document styled “Plaintiff’s Witness List” dated 23 August 2016.  It included a reference to Mr Dohrmann.  Presumably, it is from that source that Mr Jens was able to determine that Mr Dohrmann had been retained and contemplated as a witness but was ultimately dispensed with (CB 2385).

39According to an affidavit made 25 August 2023 in this proceeding, Ms Hicks said that on 23 August 2016, that is the day trial commenced, she “met privately with Mr Ingleton for the first time” and discussed a number of specific issues. She said that she “instructed Mr Ingleton that [she] did not want any member on the Jury with the surname Harris and explained the reasons why” (CB 1680, [70](a)). Apparently, Ms Hicks and her husband had an employment and business conflict with a very close family known as Harris, and she was apprehensive that any member of this “clan” would be hostile towards her.

40She said then, on 31 August 2016, after the jury had given its verdict and “left the room” (presumably the courtroom), Mr Hicks and Ms Hicks approached Mr Ingleton. Ms Hicks was perhaps unsurprisingly “extremely angry and upset”, raising an issue as to Mr Dohrmann’s report. She said “It was also during this discussion that Mr Ingleton disclosed that a Ms Harris was on the jury.” Ms Hicks said that she “was furious to say the least.” (CB 1682, [81])

41The Dohrmann report was not put into evidence. The decision not to call Mr Dohrmann to give evidence as a witness was made by counsel viz Mr Harrison QC (as he then was) and Mr Bird.  Mr Harrison said that he was selected as leading counsel for Ms Hicks, as it were, by default. Nearly all of the counsel who were accustomed to appear in the north-east of Victoria were “conflicted out” as a result of previous associations with the defendant firm, Faram Ritchie Davies.

42Mr Harrison said that during the trial he “decided not to call Mr Dohrmann as a witness.  I did not make this decision unilaterally, and I would have discussed the matter with both Mr Bird [his junior] and our instructing solicitor, Mr Ingleton.” (CB 995, [36]) Mr Harrison explained his reason as follows:

“(a)The Dohrmann Report did not address the Injury. It focussed irrelevantly on an issue with the compactus and addressed a gradual process injury, that had taken place over time, whereas Mrs Hicks’ evidence was that her injury happened from a single isolated event and was a frank injury.  As Mr Jens QC kept raising over the course of the Trial, neither Ms Hicks nor anyone else had previously complained of issues with the workplace.

(b)   Mr Dohrmann was a vulnerable witness, in that he had been criticised in the case of Hudspeth v Scholastic Cleaning Services and Consultancy Services Pty Ltd (No. 8) [2014] VSC 567 (Hudspeth Case) and in another matter heard in the NSW Supreme Court;

(c)   Mr Jens QC was very aware of the Hudspeth Case, and I was of the view that it would have been bad for the plaintiff’s case if we were to rely on the Dohrmann Report or to call him to give evidence.” (Ibid, [37])

43Mr Harrison said that on 25 July 2016, he asked Mr Tim Jackson if he had received the Dohrmann report.  He told Mr Jackson that he would “like to speak with Mr Dohrmann before it was finalised.” (CB 994)

44In viva voce evidence, Mr Harrison explained why he wanted to have a preliminary consultation with Mr Dohrmann:

“I think the probable reason is as is in the affidavit, that I'd problems in the past with Mr Dohrmann and other experts takes a record of the relevant incident from the plaintiff which was inconsistent or in some way differed from what the plaintiff had said in answers to interrogatories or affidavits in support of a serious injury application, and it provided fertile field for defendant's counsel to cross-examination, which is the correct version, et cetera. So I think I probably had hoped to talk to Mark just to make sure that he didn't take a statement, but I probably was unsuccessful because it looks like, in re-reading his report, he did.” (Transcript (“T”) 190, L12-24)

45Mr Harrison was keen to speak to Mr Dohrmann before he prepared a draft report.  He explained:

“Strictly speaks [scil speaking], drafts of reports are discoverable. If Mr Dohrmann had already prepared a draft which contained a proof from you, then probably the damage is already done, or the practice that I was seeking to avoid had already occurred, so I'm not sure if I discussed it with them or not.” (T191, L18-24)

46Ms Hicks, in her affidavit, said:

“It was during the closing given by Mr Jen [scil Jens], that it came to my attention that Mr Dohrmann’s report had not been given to the jury for consideration. I did not know why this had happened. Mr Jen [sic] in his closing said to the jury in reference to the absence of Mr Dohrmann and his report ‘… that if there is a witness that was in the camp of one party who you might expect to hear from on a relevant issues [sic] … there’d be no doubt the report was obtained by my learned friends’ instructors, and they don’t call them, … you can draw the inference and use it, that the witness would not have assisted the plaintiff’s case … sitting in the wings, was a specialist engineer ergonomist and he’s not called.  We ask you to draw an inference he wouldn’t have helped ...’” (CB 1682, [80])

47She said when she heard this, she “wanted to jump up and shout STOP!” (Ibid).

48In his closing address on behalf of Ms Hicks, Mr Harrison QC (as he then was), said:

“This is not America. We don't call experts about the most obscure and illogical things that you might think are just common sense. That’s your job. We would submit there is absolutely no problem in coming to the conclusion that had those things been done earlier, the accident simply wouldn't have happened. If it is a common sense issue, why would we spend a lot of money bring [scil bringing] an expert from Melbourne, an engineer? What for? We have got your common sense and we have got the evidence.. So you can only draw an inference if it is a witness that a party could be expected to call. The defendant clearly made a decision not to get an engineer expert and we elected not to call one for the reasons I have outlined to you. We would say we wouldn’t reasonably or normally be expected to call that person and we chose not to.” (CB 1520, L 5-19)

49In the wake of the unhappy outcome of her common law proceeding, Ms Hicks sent an email to Mr Grahame Ingleton and Mr Tim Jackson of Slater and Gordon, consisting of two closely typed pages. She began the email referring to a conversation with “Graheme” [sic] (viz Mr Ingleton) yesterday, continuing “I thought it might be better if I wrote down my concerns and questions regarding the conduct of my hearing.” (CB 2977) The email consisted of some three paragraphs relative to her “Treatment”, which began with a query as to why she had not been represented by Mr Steve Carson as her junior counsel, as she had expected.

50Secondly, she raised an issue as to whether it was appropriate for Judge Dyer to preside since he had “made an admission that he had dealings with Mr Ritchie from Faram Ritchie Davies in that he had accepted briefs from him.” (Ibid)

51After some six issues as to the evidence, she concluded:

“So my question to you is now where do we go from here, as obviously I am not happy about how my case was conducted by Counsel. Is there a possibility of an appeal?” (CB 2978)

52The issue of appeal rights was not explored in the trial before me, but it seems no appeal was lodged.  There was no complaint in the email about the presence of a juror known as “Harris”.

53On 6 November 2019, Ms Hicks wrote a letter of that date to Slater and Gordon in Wangaratta under the heading “Workcover Claim Hearing: 23 August 2016”.  The letter stated at the third line “I believe that your company failed in its duty of care in the handling of this matter and note the following” (CB 3152). There then followed some six paragraphs of complaints, the second of which began:

“That prior to the selection of the jury panel I informed Grahame Ingleton that anybody with the surname of Harris should be rejected. The reason being that I had previous experience (volatile) with a Mr Harold Harris who had a close relationship with large and extended family in the area. This advice as [scil was] ignored and subsequently a Ms Harris was appointed to the jury. Your company failed in its duty of care to ensure that a fair and impartial jury was appointed to hear my case.” (Ibid)

This proceeding

54As a self-represented litigant, Ms Hicks commenced this proceeding in 2021 seeking damages, interest and costs.

Statement of Claim

55By order of Judge Tran made 31 October 2023, a document styled “Draft Second Further Amended Statement of Claim” was to stand as Ms Hicks’ Statement of Claim in this proceeding. The gravamen of this document, as identified by Mr Over, counsel for the defendant, fell under three headings. First, that whilst updated medical assessments were obtained prior to trial, “[Slater and Gordon] did not seek any independent medical reports in respect of the sequela injury or expert report to support negligence by [Ms Hicks] employer.” (CB 8, (c)(iv))

56Secondly, she raised the issue of the “Harris” on the jury, thirdly, that in light of the fact that the burden of proof as to negligence lay on Ms Hicks:

“[Slater and Gordon] did not engage an Ergonomic Engineers Report (Mr Dohrmann) until July 28 June 2016 with the report to be provided no later than 28 July 2016 less than one month prior to the commencement of the hearing on 23 August 2016. [sic]” (CB 9, (c)(v)(D))

57The Statement of Claim continued:

“By at least 4 August 2016, [Slater and Gordon] was or should have been aware that the Dohrmann Report was deficient in one or more of the following respects:

a)    Failure to conduct a site visit;

b)    Criticism of Mr Dohrmann in the Hudspeth case; or

c)    Failure to address injury,

and had the opportunity to do something about it but failed to do so.

[Slater and Gordon] failed in its duty of care to coordinate and assemble unimpaired relevant evidence in a timely manner so [Ms Hicks’] case would be properly litigated and failed to inform [Ms Hicks] of the consequences of such deficiency which resulted in Mr Dohrmann not being called as a witness and his Report not tendered as evidence.” (Ibid)

Defence

58In its Third Amended Defence dated 31 October 2023, Slater and Gordon denied a breach of duty relative to juror Harris.  It denied any breach of duty but, in any event, said that advocate’s immunity constituted a complete defence.  It said that “[t]he fact that Mr Dohrmann did not to [sic] conduct a site view did not disqualify or prevent him from giving evidence”, and expert evidence “was not necessary for the plaintiff to prove negligence.” (CB 13, (5)(b)(vi)(A)-(B))

59According to the Defence:

“(C1)The defendant denies that the report of Mark Dohrmann was deficient as alleged, and further, it was not aware and ought not to have been aware of any deficiency in the report of Mark Dohrmann that would prevent him from giving evidence at the trial. It intended right up to the trial for Mark Dohrmann to be called as a witness.” (Ibid, (5)(b)(vi)(C1))

60Once again, these matters were said to be the subject of advocate’s immunity.

61In any event, it was said that any loss which Ms Hicks might have suffered, which was not admitted, was not caused by any breach of duty by Slater and Gordon or result from any conduct or omission by Slater and Gordon.

62Further, it said that any award of damages based on the loss of a chance to recover damages in the proceeding against Faram Ritchie Davies had to take account of whether Ms Hicks “would have obtained common law damages”, bearing in mind the need to establish negligence on the part of Faram Ritchie Davies and the degree of contributory negligence on the part of Ms Hicks.  Also, whether Ms Hicks no longer has to pay back money to the WorkCover Authority, Centrelink, any private insurer or Slater and Gordon for the legal costs in having acted for her.  In addition, the disbursement finance given by an organisation known as Equal Access Funding.

Summary judgment application

63An application for summary dismissal of the proceeding made by the defendant based on advocate’s immunity was dismissed by Judge Carmody ([2022] VCC 627).

Renewed application for summary judgment

64When the matter came on for trial before me, Mr Over, on behalf of the defendant, without notice or the issue of a Summons, sought to renew the application for a summary dismissal of Ms Hicks’ claim, relying once again on advocate’s immunity.  Ms Hicks seemed agreeable to that cause on the basis she would contend that Judge Carmody’s decision was final and binding and the court was “functus officio” on the point, so any renewed application must fail.

65I was troubled, first, by considerations of judicial comity, I have no authority to sit on appeal from Judge Carmody’s decision.  Slater and Gordon aimed to persuade me, based on the same arguments as failed before his Honour, to reverse his Honour’s decision.

66Secondly, I put it to Mr Over that to renew an interlocutory application did not offend against any of the doctrines flowing from final determination, such as res judicata or issue estoppel, but it did constitute an abuse of process absent a material change in circumstances.  He was unable to point me to any material change. 

67I felt the proper course was to allow him to advance, as a preliminary point in the final hearing, the argument based on advocate’s immunity which, if accepted, would constitute a “knockout” for the defendant and an effective pre-emptive strike sparing litigants and the court the need to canvas the wider factual issues.

68Mr Over demurred on the basis that he felt no determination could be made except on the basis of facts, either proven or agreed between the parties.  He said the defendant and the plaintiff could not agree upon the facts.  In the result, therefore, the matter proceeded to trial in the orthodox manner.

69Ms Hicks had made a number of affidavits.  Ultimately, however, she relied only upon affidavit material made by her and her husband in August of this year, and did not seek to rely on the earlier material.  She filed a statement from Mr Dohrmann, which was admitted into evidence without cross-examination.

70Affidavits were admitted into evidence from Mr Ingleton and Mr Harrison, both of whom appeared for cross-examination remotely. A witness statement from Mr Bird was admitted over Ms Hicks’ objection under s63 of the Evidence Act 2008, as a statutory exception to the hearsay rule on the basis that he [Mr Bird] was “unavailable” in accordance with the dictionary definition of that term in the Evidence Act as being immobilised and seriously ill with advanced cancer. Mr Harrison KC (as he now is) said that Mr Bird had returned from hospital but was unable to receive visitors.  Mr Harrison’s affidavit exhibited a transcript of the trial before Judge Dyer.

Conclusions

Juror Harris

71The procedure for empanelment of civil juries is similar now to the one in force in 2016, when Ms Hicks’ case was tried before Judge Dyer and the jury, but there are material differences.

72Section 35(1) of the Juries Act 2000, as in force in 2016, permitted a party to a civil trial three peremptory challenges to potential jurors (s35(1)). This sub-section was amended in 2017 so as to reduce the number of peremptory challenges to two.

73In 2016, s31(1) of the Juries Act provided for the judge’s associate to “call out” the “names or, if the court makes a direction under subsection (3), their number”.  Sub-section (3) provided that the court might, if it “considers that the names on a panel should not be read out in open court….direct that each person be identified by number only.” The default position was that the panel members would be identified by name.

74Section 30A of the Juries Act (inserted in 2017) now provides:

“(1)Subject to subsection (2), a panel member must be identified in court by the member's identifying number.

(2)If the court considers that it is in the interests of justice to identify members of the panel by name, the court may, either before or after the panel, or the first part of a split panel, is present in the court, direct that members of the panel be identified by name.”

75It will be seen that the default position now is that the potential jurors in the panel should be identified by number and not by name.

76As to what occurred in Ms Hicks’ case, senior counsel at the trial, Mr Harrison KC (as he now is), said he did not have “a strong recollection of the jury empanelment” (CB 995, [39]), but believed that the normal procedure was followed – viz identifying the potential jurors by name.  His notes (CB 1584) set out the names of the 12 persons who were chosen as the panel from which the jury would be struck, and those who were challenged, leaving the six members of the jury.  We may conclude, therefore, that the jurors and potential jurors were identified by name.

77It seems that the process of “striking the jury”, as provided for in s33 of the Juries Act, whereby the list of the panel of 12 was provided first to the plaintiff, and secondly to the defendant, each of whom might “strike from the list the…name of any person to whom they object…”, was handled on behalf of Ms Hicks by her senior counsel.

78Mr Ingleton, who was instructing counsel on behalf of Slater and Gordon, said:

“I may not have been in Court during the jury empanelment process because…When the Trial commenced I was not in the Court room at all times. I recall that I was in and out of Court, as I was in the process of preparing administrative documents to assist the running of the Trial;” (CB 1587, [20](a)).

79Further, he said his file notes did not include any matters relative to the jury empanelment.

80Mr Harrison described the usual process for jury empanelment, which he believed was followed in this case.  He described this in detail at Court Book 995-996, paragraph 40.  The procedure entailed the calling of the six jurors whose names are selected three times. First, as members of the pool to ascertain that all are present, secondly, as members of the panel from which the jury is struck and, thirdly, as members of the six jurors selected.

81If Ms Hicks were in court during this process, she would have heard the name of each of the jurors selected including Ms Harris.

82Ms Hicks recalled being in court when the judge directed the jury pool members to seek to be excused if they were acquainted with any of the parties, the witnesses, the legal practitioners involved, the presiding judge or his staff.  She recalled being asked to stand up to assist the jurors in determining whether they were acquainted with her. She said:

“The judge spoke to the people, explained to them the roles that they would be expected to be playing in the jury and that if they had any knowledge of me, that they were to excuse [sic]. During that process I am reasonably confident that I was asked to stand up so that everybody in the room could get a good look at me, to be able to see whether they recognised me. My name was read out loud and then there followed a process where people excused themselves from the jury, and that is the only recollection that I actually have, and I believe that after that point, I was not required and I left,…” (T99, L3-14)

83Cross-examining Ms Hicks, Mr Over said:

“But you don't remember, so isn't it just speculative on your part to say, 'I left'? It's equally possible, isn't it, since it was your court case, you stayed where you were and watched the process through to the end?” (Ibid, L19-22)

84She replied “It is possible, yes, but I actually say that I wasn’t.” (Ibid, L22-23) She could not give an explanation as to why that was, except to say “it’s possible that I was asked to leave. There were periods throughout the trial…where I was actually asked to leave the courtroom.” (Ibid, L27-30)

85When Ms Hicks cross-examined Mr Harrison, she said “Are you certain or was I in the room and if so, how certain were you whether I was present or not, given that I was sitting at your back?” (T197, L3-6) Mr Harrison replied:

“Obviously, I suppose - I mean, I can't imagine you wouldn't have been in the court for a jury selection. I sort of have a recollection of you sitting behind me but if you nicked out for a minute or something to do something or other, I wouldn't necessarily know.” (Ibid, L6-11)

86This led Ms Hicks to observe “So it’s possible that I wasn’t there?” (Ibid, L12)

87I then observed that Ms Hicks’ evidence did not include a distinct memory of having “nicked out”.

88Mr Harrison said “It's possible she dipped out for a second but if you were in the courtroom you would have heard the names because I've written them down.” (Ibid, L17-20)

89Ms Hicks then said “But you can’t be certain that I was present when that happened?” (Ibid, L21-22) To which Mr Harrison replied “Pretty close to.” (Ibid, L22)

90It is certain, however, that Ms Hicks did hear the names read out at some point.  The transcript of the summary judgment hearing before Judge Carmody records Ms Hicks as saying:

“My memory of the matter is that the jurors actually were - their names were articulated at the conclusion of the hearing, as to who they were, and that was at the point that I became aware that there was a Ms Harris. She was an elderly lady. I have a picture of her still in my mind. And I had made it extremely clear the reasons why that that name would be excluded.” (CB 3111, L4-10)

91In her affidavit sworn 25 August 2023, on which Ms Hicks relied as the proper and accurate articulation of her case at the trial of this proceeding, she said she became aware of Ms Harris’ membership of the jury in these circumstances:

“On the 31 August 2016, when the jury left the room to make their decision, Nigel [Ms Hicks’ husband] and I approached Mr Ingleton [of Slater and Gordon].  I was extremely angry and upset because Mr Dohrmann’s report had not been presented. It was also during this discussion that Mr Ingleton disclosed that a Ms Harris was on the jury. I was furious to say the least.” (CB 1682, [81])

92As to the circumstances in which Ms Hicks said she gave instructions to exclude anyone named “Harris” from the jury, in her August affidavit, the one upon which she relied as the proper statement of her case, she said the instructions relative to the exclusion of anyone named “Harris” from the jury was given on 23 August 2016, that is the first day of the hearing, during a private meeting with Mr Ingleton (CB 1680, [70]).

93In her affidavit filed for the summary judgment application before Judge Carmody, Ms Hicks described her consultations on the morning of 23 August, before the commencement of trial, as entailing an initial discussion with Mr Bird whom she was meeting for the first time as her junior counsel (she had believed that she would be represented by Mr Carson as junior counsel), with Mr Harrison QC (as he then was) and Mr Ingleton joining the conference subsequently, and Ms Hicks giving the instructions regarding the exclusion of Harris family members at this joint conference (CB 3047-8, [41]-[42]).

94It would also seem, according to an affidavit sworn by Ms Hicks on 26 February 2023, upon which she did not rely but upon which she was cross-examined, that her account entailed consultation with counsel but also a private consultation with Mr Ingleton, which began with her remonstrating with him as to why Mr Carson had not been briefed as her junior counsel (CB 80-81, [66]-[67]).

95Mr Over submitted that the introduction of the private consultation with Mr Ingleton was for the purpose of advancing Ms Hicks’ case.  He said that if the direction relative to the Harris family had been given to counsel in circumstances where senior counsel dealt with the jury empanelment, responsibility for the empanelment of a juror Harris would have rested with counsel rather than with Slater and Gordon.  I need express no view on this matter.

96The accounts given by Ms Hicks on this point are inconsistent and implausible, and I reject them.  There is no procedure for the naming of jurors once their verdict has been returned.  The purpose of reading the names, at least in 2016 as the procedure then existed, was to enable interested parties, including Ms Hicks and her legal advisers, to be aware of and to have sight of potential jurors, to try to avoid the sort of difficulty of which Ms Hicks complains now.  There would be no purpose at all in reading out the names of the jurors at the conclusion of the trial.  It is not part of the court’s usual procedure. 

97Since, on her own account as given to Judge Carmody, Ms Hicks did hear the name of juror Harris read out, it must have been during the empanelment. Ms Hicks was present for the initial portion of the empanelment and no explanation has been given as to why she might have “nicked out”.  She can give no explanation as to why she would have done that.  Therefore, she heard the name juror Harris during the empanelment.  If perhaps less than an hour previously, and at any rate on the very same morning, she had given the most downright instructions that a juror Harris should be excluded, it is inconceivable that she would have taken no action during the empanelment, whether it was to interrupt the proceedings or at any rate to have drawn Mr Harrison QC’s attention to the problem.

98Mr Nigel Hicks, in cross-examination before me, said that whilst he was not present in court on the first day of the hearing, he began attending on 25 August 2016 and was in attendance on 26, 29, 30 and 31 (T71, L16-19).  He was present when the verdict was read, and in answer to the question from Mr Over “when you were in court, the whole of the time that you were there, there was no reference to any of the jury members by name, was there?”  He replied “No.” (Ibid, L27-29)

99Ms Hicks drew attention to paragraph 19 of Mr Ingleton’s principal affidavit sworn 26 April 2023 where he said relative to the conference which he recalls occurring before the commencement of trial on 23 August 2016:

“19.   In terms of the discussion:

(a)I do not recall [Ms Hicks] saying that she did not want a juror with the surname 'Harris' on the jury;

(b)I recall [Ms Hicks] saying she had a range of different issues with various people and groups of people and she did not want these people to be on the jury; and

(c)I cannot recall every group of people or person that she took issue with being on the jury.” (CB 1587, [19])

100She also referred to Mr Ingleton’s concession (at T209, L4-5), that he was feeling under pressure, and his statement (at T233, L22 - T234, L3), that nothing on 23 August 2016 was normal because he was in new surroundings, starting work at a new office.  None of this, however, affects the logic of what I have already said.

101Mr Ingleton said he did not believe that he had a conversation with Ms Hicks about juror Harris at the end of the trial, remarking “I do not think I ever knew there was a juror with the surname Harris.” (CB 1587, [22])

102Even if contrary to Mr Ingleton’s recollection, Ms Hicks did refer to the presence of a juror named Harris at the end of the trial, this would not necessarily entail her having mentioned concerns about this surname at the beginning of the trial or at the pre-trial conference. Ms Hicks stressed that no one could say for certain that she was present during the empanelment when names were read out.  No witness could say “Whilst I heard the names of the jury pool/panel being read aloud my eyes were on Ms Hicks and she was present in court”. 

103The logic of events would have it that she was in court.  She is unable to call upon a distinct recollection of having “nicked out” during the empanelment, nor explain why she would have done that contrary to all normal experience in litigation.  She was present because her case was commencing.  She was not a mere witness or curious bystander.  The outcome of the proceeding would be vital for her economic wellbeing for the rest of her life. 

104Whilst in the course of the trial, which was somewhat disrupted by the interposition of witnesses such as Mr Faram, she may have been requested to leave the court on a number of occasions, there was no reason she would have been required to leave the court before the conclusion of the empanelment. 

105Ms Hicks seeks findings of fact that are contrary to logic and common experience without being able to support such findings with any distinct recollection.  In any event, Ms Hicks must have been present at the empanelment to have heard the names “articulated”, to adopt the language she used in addressing Judge Carmody.

106I conclude, therefore, that no instruction was given on the morning of 23 August 2016 that no member of the Harris family be permitted on the jury, whether privately to Mr Ingleton or to a joint conference of Messrs Ingleton, Harrison QC and Bird.

107I am fortified in this conclusion by the fact that whilst Ms Hicks sent a lengthy remonstrance to Slater and Gordon by email dated 1 September 2016, in the wake of her loss at trial, the issue of juror Harris was not first the subject of a complaint until a letter in November 2019, that is over three years after the trial.

108Since Ms Hicks’ complaint relative to the composition of the jury fails on the facts, it is unnecessary to consider the application to this matter of advocate’s immunity, which constituted the principal defence taken by Slater and Gordon in this proceeding.

109In her closing address, Ms Hicks said that her email of 1 September 2016 began with the words “Further to my conversation with Graheme [sic] yesterday…”, meaning that she had made her complaint orally the day before as to juror Harris, and the email dealt with the balance of what she wanted to say.  This explanation was not proffered when she was cross-examined on the point but only from the Bar table in closing submissions.  It smacks of an ex post facto rationalisation.  It is also inconsistent with the immediately following sentence in the email, which states “I thought it might be better if I wrote down my concerns and questions regarding the conduct of my hearing.” This is the introduction to a comprehensive statement of Ms Hicks’ concerns as they existed on 1 September, not to a letter simply seeking to add to what she had said “yesterday”.

The Dohrmann report

110I have extracted the material portions of Ms Hicks’ Statement of Claim relative to the Dohrmann report at [52]-[53] above.

111Mr Over contended that the issue of a lack of site inspection by Mr Dohrmann was of no consequence. He said the reasons that Mr Dohrmann was not called as a witness were summarised by Mr Harrison in his affidavit extracted at [39] above. Mr Harrison made no reference to the lack of a site visit.

112In her closing address, Ms Hicks said:

“It could stand to reason that someone must have told me that the reason [viz the inability to arrange a site inspection] was given in my conversation with Mr Ingleton that it would have been him, because I was given a different reason than what Mr Harrison stated,…” (T446, L7-11)

113I asked her whether this matter was covered in one of her affidavits.  She said she believed it was in her affidavit of 23 August 2023, or one of the other ones, but could give me no definite reference. The passage referred to seemed to be paragraph 70 of Ms Hicks’ August affidavit where she referred to a private meeting with Mr Ingleton [viz without the presence of either member of counsel], stating that Mr Ingleton told her:

“that Mr Dohrmann would not be called as a witness. He advised me that the reason being that Mr Dohrmann had not inspected my workstation and that because of this Counsel had concerns that the counsel for the other side would in effect ‘eat him alive’.” (CB 1680, [70])

114Ms Hicks’ affidavit of February 2023 was to similar effect. (CB 81, [67])

115Given that the decision to not call Mr Dohrmann was one for counsel who, in accordance with normal practice, assumed responsibility to the exclusion of client and instructing solicitor for the conduct of the trial, Mr Harrison would seem to be the best source of information as to why the decision was made. 

116In his principal affidavit, Mr Ingleton said that the decision was made by counsel and whilst he did not see Mr Harrison and Mr Bird inform Ms Hicks of their decision, he believed that they had done so. (CB 1588, [27])

117In a supplementary affidavit made 20 July 2023, Mr Ingleton swore:

“Until Mr Harrison QC and Mr Bird decided that Mr Dohrmann was not to be called as a witness, I had intended that Mr Dohrmann would be called as a witness at the trial and the Dohrmann Report would be relied on by the plaintiff.” (CB 1665, [3(c)])

118He also said that he did not recall why Mr Dohrmann was not authorised or commissioned to carry out a site visit, and that he did “not recall it being identified that there was a need for Mr Dohrmann to conduct a site visit” (Ibid, [4(a)]).

119It is not evident to me why the lack of a site visit in itself should have been fatal to the strategy of calling Mr Dohrmann was a witness, as it would seem that Mr Jackson and Mr Ingleton intended to do prior to the decision made by counsel. 

120In those circumstances, I do not accept that the lack of a site inspection carried out by Mr Dohrmann was material to the decision not to call him as a witness nor causative of Ms Hicks’ loss of the case before Judge Dyer.

121As to the third alleged breach of duty by Slater and Gordon with respect to the Dohrmann report, namely “failure to address injury”, the primary responsibility for the terms of the report, and perhaps the sole responsibility, must lie with Mr Dohrmann himself. The Statement of Claim says that since Slater and Gordon had the “opportunity to do something about it but failed to do so”, the responsibility in this respect thereby devolved also upon it.

122Mr Ingleton and Mr Jackson in discussion, and counsel, apparently all considered the possibility of obtaining an “addendum” to the report.  In his cross-examination, Mr Harrison was unenthusiastic as to the wisdom of such a course. 

123Ms Hicks put it to Mr Harrison that when he perceived difficulties or deficiencies in the Dohrmann report he should have “let Slater & Gordon know”.  Mr Harrison’s response was:

“Don't know. Probably, but once the report's been created you can't unscramble the omelette. You can't go back to the expert and say, 'We don't like your report, would you please change it?' You can ask further questions but Hudspeth was in fact all about Mark Dohrmann producing later multiple versions of a report to address concerns at the request of lawyers and it turned out quite badly. So once the report's been created, there's not much you can do about it. You have to decide whether you either use it as it is or you decide not to use it.” (T193, L17-28)

124Toward the end of her cross-examination of Mr Harrison, Ms Hicks put it to him that expert opinion evidence was effectively essential or vital to the success of a negligence claim. Mr Harrison said that he had “Less than 100” (T200, L1-2) negligence cases “without expert evidence towards negligence” (T199, L31 - T200, L1-2).

125Mr Harrison said he had been:

“doing this for 20 years [viz acting for plaintiffs in negligence trials], so 120, 140. I prefer not to call experts for the reasons I've just indicated that I think a lot of it is common sense dressed up as expert evidence and they can be made to look like awful fools, sometimes. So clearly I've won cases with experts, but I think I've probably won more without them.” (T200, L6-11)

126Having regard to these observations by Mr Harrison, I do not accept that Slater and Gordon was in breach of its duty to Ms Hicks in “not doing something” about the Dohrmann report.

127The second of the three criticisms of Slater and Gordon’s performance, however, is in a somewhat different category, referring to “criticism of Mr Dohrmann in the Hudspeth case”.  It is unnecessary to go into the detail of the Hudspeth case.  The passage quoted from Mr Harrison’s evidence is sufficient.  The effect seems to be that Mr Dohrmann was, as a result of criticisms made of him in Hudspeth’s case, discredited as an expert.  The criticisms were widely known and might be expected to be known to counsel for the defendant. The use of reasonable care by Slater and Gordon would not have led it to select an expert who had been discredited by adverse judicial criticism. 

128Again, Ms Hicks was placed in the worst of all possible worlds.  With no expert ergonomic evidence in support of her case, there may have been another ergonomist who was prepared to express the same views as Mr Dohrmann had, though this has not been proven.  Had Mr Dohrmann not been retained at all, or had his report been obtained earlier, such that the wisdom of its use could have been the subject of advice from trial counsel, Mr Dohrmann’s involvement need not have been disclosed to the defendant’s legal advisers, and defendant’s counsel would not have been in a position to make the Jones v Dunkel comment that he did.

129Mr Over contended that this extrapolation from the Statement of Claim went beyond the legitimate scope of the pleading and, therefore, ought not to be considered by the court. 

130It cannot be known for certain whether Ms Hicks’ case with Mr Dohrmann called as a witness, either with his report in its original form or supplemented by some “addendum”, would have led to a verdict in favour of Ms Hicks.  Nor can it be known if a report could have been had from a different ergonomist without the baggage of Hudspeth’s case, and if such report would have made the difference and led to victory for Ms Hicks. The most obvious source of information as to the decision to retain Mr Dohrmann as Ms Hicks’ expert, the selection of the questions which were put to him, and the date of his retainer would have been Mr Tim Jackson.  The defendant, Slater and Gordon, might have been expected to call him as a witness on these matters.  He was not called and no explanation was given for his absence from the witness box. The defendant in this proceeding is therefore subject to the same inference which Mr Jens invited the jury to draw against Ms Hicks in 2016, that is that the absence of an obvious witness could lead to the conclusion that such witness’s evidence would not have assisted the party which failed to call him or her.

131Assuming without deciding that Slater and Gordon were otherwise in breach of its duty to Ms Hicks, the question is whether advocate’s immunity would exclude any liability on its part with respect to the criticisms made of it relative to the Dohrmann report.

Advocate’s immunity

132The principle of advocate’s immunity is as follows:

“at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court;” (D’Orta-Ekenaike v Victoria Legal Aid& Anor(2005) 223 CLR 1, 9 [1] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Giannarelli & Ors v Wraith & Ors (1988) 165 CLR 543)

133An immediate question which arises in this case is whether, as the defendant Slater and Gordon contends, it should be regarded as an “advocate” for the purpose of this rule.

134Ms Hicks said that Slater and Gordon’s role was “purely one of gathering all necessary evidence and retaining a barrister to advise, prepare court documents and conduct negotiations and appear in court.” (T450, L30 – T451, L3) Her affidavits, which included a step-by-step account of her personal injury claim’s advance to final hearing, disclosed, she said, how at every turn when a significant decision was to be made, Slater and Gordon “briefed out” the matter for counsel’s opinion.  This she said was consistent with the characterisation she sought to put on its role in her case.

135In D’Orta-Ekenaike, the High Court considered claims for negligence brought both against counsel and a solicitor – an officer of Victoria Legal Aid. The plaintiff was arraigned on a charge of rape. He said he was advised by both counsel and the Victoria Legal Aid officer that he had no defence and so pleaded guilty. He was allowed to withdraw that plea but, when he went to trial before a jury, evidence of the plea was admitted and he was convicted.  That conviction was in due course quashed and Mr D’Orta-Ekenaike was acquitted on a retrial.  Meanwhile, however, he had spent many months in prison and sought damages for pain and suffering and so forth. The High Court of Australia held that neither counsel nor Victoria Legal Aid, in its role as solicitor, was liable.

136In a joint judgment, Gleeson CJ, Gummow, Hayne and Heydon JJ said:

“the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.” (2005) 223 CLR 1, 20-21, [45]

137Directing themselves to the particular situation affecting Mr D’Orta-Ekenaike, their Honours said:

“66In every case the complaint must be that a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged. That consequence may take a number of forms. For the moment, it will suffice to identify what may appear to be the three chief consequences: (a) a wrong final result; (b) a wrong intermediate result; and (c) wasted costs.

67A client may wish to say that the conduct of the advocate was a cause of the client losing the case because, for example, a point was not taken, or a witness was not called, or evidence was not led. The client may have no appeal, or no remedy on appeal, as, for example, would generally be the case if the evidence not called was available at trial.” (2005) 223 CLR 1, 26, [66]-[67]

138Their Honours went on to refer to a number of other instances in which a litigant might complain that his trial had miscarried, and continued on the following page:

“What unites these different kinds of consequence is that none of them has been, or could be, wholly remedied within the original litigation.  The final order has not been, and cannot be, overturned on appeal.  The intermediate consequence cannot be repaired or expunged on appeal.  The costs order cannot be set aside; the costs incurred cannot be recovered from an opposite party.  And in every one of these cases, the client would say that, but for the advocate's conduct, there would have been a different result.  In particular, leaving cases of wasted costs aside, the client wishes to assert that, if the case had been prepared and presented properly, a different final, or intermediate, result would have been reached.  And yet the judicial system has arrived at the result it did.  The consequences that have befallen the client are consequences flowing from what, by hypothesis, is a lawful result.  So, to take the present case, the imprisonment of which the applicant seeks to complain is lawful imprisonment.  In a case where the client would say the wrong final result is reached, the result in fact reached is, by hypothesis, one that was lawfully reached. Whether the lawful infliction of adverse consequences (such, for example, as imprisonment) can constitute a form of damage is a question that may be noted but need not be answered.” (2005) 223 CLR 1, 27, [70]

139The court refused the invitation put to it by the appellant to overrule the cases which had upheld advocate’s immunity.  Their Honours said:

“To remove the advocate's immunity would make a significant inroad upon what we have earlier described as a fundamental and pervading tenet of the judicial system. That inroad should not be created. There may be those who will seek to characterise the result at which the Court arrives in this matter as a case of lawyers looking after their own, whether because of personal inclination and sympathy, or for other base motives. But the legal principle which underpins the Court's conclusion is fundamental. Of course, there is always a risk that the determination of a legal controversy is imperfect. And it may be imperfect because of what a party's advocate does or does not do. The law aims at providing the best and safest system of determination that is compatible with human fallibility. But underpinning the system is the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need.” (2005) 223 CLR 1, 30-31, [84]

140According to these principles, the court held that the advocate’s immunity extended both to counsel and Victoria Legal Aid, (2005) 223 CLR 1, 32, [89]-[90] citing:

“Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision (here the client's decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account.” (2005) 223 CLR 1, 32, [91]

141D’Orta-Ekenaike’s case was one concerned with advice given both by a solicitor and counsel.  The statement of principle, however, is that the advocate’s immunity extends to “work out of court which leads to a decision affecting the conduct of a case in court”.  An example of an application of the immunity which might be thought more similar to the present case is to be found in the decision of Bell J in Goddard Elliott (a firm) v Fritsch [2012] VSC 87.

142His Honour explained the nature of the allegations made against the solicitors and why, in his view, the immunity covered those matters in the case before him:

“794The negligent omissions in the present case involved the failure by a solicitor to prepare asset valuation, taxation and other evidence which was needed for the conduct of a case in court by the client’s barristers (the preparation negligence).  In my view, negligence of that kind falls within the scope of the immunity because it is work done out of court leading to decision about, or intimately connected with, the conduct of the case in court.

795Submissions were made for Paul that the immunity did not apply as the preparation negligence long preceded the commencement of the hearing in court. Those submissions must be rejected. The application of the immunity is not governed by temporal or geographic considerations.  The question is whether the negligence related to the work done out of court leading to decisions about, or intimately connected with, the conduct of the case in court.

796Here, in the months prior to and running up to the commencement of the hearing, Goddard Elliott failed to prepare evidence of critical importance to the conduct of the hearing.  That was work done out of court leading to decisions about, or intimately connected with, the conduct of the case in court.

797It was also submitted for Paul that the preparation negligence was connected to the performance of work by Goddard Elliott as solicitors, not as advocates, which was functionally remote from the proceeding. That too is not the test. The immunity applies to the work of solicitors and barristers when they perform work in court or out of court leading to decisions about, or intimately connected with, the conduct of the case in court. The test depends on the nature of the work and its connection with the case in court, not on whether the lawyer is performing the work as a barrister or solicitor. Further, preparing necessary evidence for a trial is not functionally remote from the conduct of the case in court but rather is intimately connected with it.” [2012] VSC 87, [794]-[797]

143Whilst his Honour applied the immunity to a case which had been resolved by a settlement “at the door of the court”, which seemed appropriate as the authorities stood in 2012 in 2016, the High Court added a new proviso to the immunity’s application.

144Their Honours considered that the rationale for advocate’s immunity lay in the finality of a determination made following a contested hearing. That logic, they considered, did not apply to proceedings which were resolved by a compromise between the parties and did not involve an adjudication by a court following a contested hearing (Attwells & Anor  v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1). The analysis by Bell J of the scope of the immunity, however, remains unimpaired. His Honour, in my respectful submission, correctly considered that work in assembling materials for presentation at trial was intimately connected with the trial and the court’s adjudication. Where the solicitors failed to take proper and timely action to assemble material for presentation at trial, the immunity was nevertheless engaged. The analogy with the retainer of Mr Dohrmann, whether the criticism be that he was an inappropriate expert as having been discredited, or that his report was obtained too late or that different questions might have been asked, all seem to be within the scope of the immunity.

145While excluding the operation of the doctrine of advocate’s immunity from actions resolved by settlement out of court, the High Court, having been asked to overrule earlier authorities and repudiate the doctrine of advocate’s immunity, expressly refused to do so in Attwells’ case ((2016) 259 CLR 1, 13).

146The immunity was therefore established by a series of decisions of the highest authority, including three decisions of the High Court in Giannarelli & Ors v Wraith & Ors (1988) 165 CLR 543; D’Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1 and Attwells & Anor v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1. These authorities are binding on this Court.

147Interestingly in the present case, the retainer of Mr Dohrmann (which is the subject of criticism) is an example – perhaps an isolated example – of Slater and Gordon itself making a decision as to the evidence which would or might be placed before the court at trial.  The retainer of Mr Dohrmann was not made as a result of any advice as to evidence given by counsel. Even if some narrower view of who constituted an “advocate” for the purposes of the rule were taken than is to be found in the High Court authorities referred to, the matters pertaining to Mr Dohrmann would likely fall within the immunity.

148Whilst it is unnecessary to determine, were I wrong in the conclusions that I have expressed as to the events relative to juror Harris, since these matters were intimately connected with the trial of the proceeding, the immunity would extend to these matters even if, contrary to the findings I have made, Ms Hicks’ account of events relative to the juror empanelment were accepted.

Functus officio

149Ms Hicks contended that the issue of advocate’s immunity had been determined in her favour, at least with regard to the issue relative to Mr Dohrmann, by Judge Carmody in his determination ([2022] VCC 627), in which he dismissed an application for summary judgment by the defendant based on advocate’s immunity. At paragraph [20], his Honour said “the failure by Slater & Gordon Ltd to instruct and arrange a view by the expert at a much earlier time is not the subject of advocate’s immunity” ([2022] VCC 627, [20]).

150Ms Hicks stressed that his Honour did not say merely that it was arguable that these matters relative to Mr Dohrmann stood outside the operation of advocate’s immunity. Rather, she said, his Honour expressed a definite view that they were outside the operation of the immunity. 

151At [21] of his Honour’s judgment he said:

“The distinction between solicitor and advocate is due to the role of the solicitor in the coordinating and assembling of the relevant evidence in a timely manner so that the plaintiff’s claim can be fully and properly litigated. On this basis alone, I find that the plaintiff’s claim against Slater & Gordon Ltd is not hopeless, and hence should be allowed to continue or proceed. Further, it is in the interests of justice that the plaintiff be allowed to continue with her claim against Slater & Gordon Ltd.” ([2022] VCC 627, [21])

152Given that his Honour was tasked by the nature of the application [viz a defendant’s application for summary judgment] only to determine whether the plaintiff had an arguable case, and in light of his Honour’s elaboration on the point which he made in paragraph [20], in the following paragraph in his judgment the better view of his Honour’s determination is that he was not seeking to express a definitive view on the subject.

153Ms Hicks took me to some High Court authorities based on the doctrine of “functus officio”, arguing that in the circumstances this Court should be regarded as “functus officio” with respect to the issue of advocate’s immunity.

154The Latin phrase “functus officio” refers to a court or other decision-making body having made a final determination and therefore concluded its task. The doctrine has the effect that once this point has been reached, the court or other decision-making body is not at liberty to revisit the issue. Its authority is spent. There is a vast jurisprudence on this subject to which, mercifully, it is unnecessary to turn.

155It is sufficient to note that in disposing of the defendant’s application before him, Judge Carmody gave directions aimed at progressing the proceeding to trial.  This is the antithesis of a determination that would bring the matter to an end and lead to a situation where the court’s authority was spent.

156There are a number of legal doctrines which treat matters already determined as being binding in future proceedings or later in the same proceeding.  The two most important are res judicata and issue estoppel.  Without troubling to cite authority for these well-established doctrines, what both require is that the prior determination which is to be treated as binding for the future is final. The very nature of Judge Carmody’s determination, a refusal to bring to an end the plaintiff’s case providing for it to continue to trial, indicates that it is not final. These two doctrines cannot apply. 

157The doctrine of abuse of process may preclude a party from raising in a second interlocutory (non-final) proceeding something which has already been determined in an earlier interlocutory application in the absence of a material change in circumstances.

158It was this doctrine which led me to refuse to allow the defendant to renew an application for summary judgment. At this stage, however, the determination which I am making, by its nature, will be final subject only to the right of an aggrieved party to seek leave to appeal to the Court of Appeal. Judge Carmody’s judgment does not determine the issue of advocate’s immunity finally in favour of Ms Hicks, as she contended.

Damages

159The assessment of damages, should a proceeding such as this succeed, is a very difficult matter. The operation of advocate’s immunity means that the process of damages assessment in claims such as this is seldom, if ever, reached. There have, however, been successful cases where proceedings have been brought against legal practitioners for failing to commence proceedings in time, with the result that no claim can be brought because the time limit under the limitation of actions legislation has expired: Johnson & Ors v Perez (1988) 166 CLR 351 is such a case. Guidance on the issue of assessment of damages might be obtained from this and similar authorities.

160Mr Over, on behalf of the defendant, contended that the assessment of the damage which Ms Hicks would be regarded as having suffered if her claim succeeded, required valuation of the “chance” of success which the defendant’s negligence would, on this hypothesis, have deprived her of. He contended the exercise would require a comparison of the percentage chance of success of the case, as actually presented, as against the percentage chance of success which a case conducted hypothetically without breaches of duty by the defendant might have had. 

161If this be the accurate mode of assessment, the award in favour of Ms Hicks, had she succeeded on liability in this proceeding, would be far lower than she anticipated.  My own inclination would be that the “factual” and “counterfactual”, to be compared for the purposes of damages assessment, would be the case as presented which the jury’s verdict indicated should be regarded as a zero-percentage chance based on the actual outcome. This, as against the percentage prospects of success of a case conducted without the breaches of duty which would have to be established, to lead to a favourable determination in this proceeding for Ms Hicks on liability.

162Having regard to the outcome on liability, I do not propose to enter upon these difficult issues.  Ms Hicks contended that a case conducted before Judge Dyer and a jury, without the breaches of duty of which she complained, would have recovered damages in excess of $800,000.

Disposition

163This proceeding must be dismissed.

Costs

164I have heard no submissions on the question of what costs should be awarded in the event of the dismissal of this proceeding.

165Accordingly, I will reserve costs.