Kendirjian v Lepore & Anor
[2017] HCATrans 17
[2017] HCATrans 017
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S170 of 2016
B e t w e e n -
DAVID KENDIRJIAN
Appellant
and
EUGENE LEPORE
First Respondent
JIM CONOMOS
Second Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 9 FEBRUARY 2017, AT 10.00 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR D.M.C. AQUILINA, for the appellant. (instructed by Longton Legal)
MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MS A.M. HAWKINS, for the second respondent. (instructed by Carney’s Lawyers)
KIEFEL CJ: You have an application, I think, Mr Agius?
MR AGIUS: Yes, we do. Is it convenient to deal with it now?
KIEFEL CJ: Yes, you could outline it and we will hear Mr Walker’s response to it.
MR AGIUS: Your Honours, we have prepared a very short written document, two pages. Might I inquire if the Court has that, entitled “Respondent’s application to file a short supplementary written submission”.
KIEFEL CJ: It is filed very late, Mr Agius.
MR AGIUS: Yes, I apologise for that. It went to the Registry only this morning. We did flag in our written submissions that there was some attack on Attwells but we were not as precise about the attack as we should have been.
KIEFEL CJ: That is perhaps something of an understatement. Perhaps we should ask Mr Walker for your response.
MR WALKER: Your Honours, in our submission, there has not been any attempt in either the original written submission or the proposed supplementary one to cover the ground necessary for a reopening. None of the – I will call them “orthodox” ‑ none of them could be called “prerequisites”, it is in the hands of the Court as to whether you should hear an argument, but none of the orthodox bases upon which a reopening of any kind has been attempted. That is the first thing.
The second thing is that is all the stronger, bearing in mind the recency of the decision which is sought to be impugned and, in any event, in our submission, it is artificial to suppose ‑ even given the way it has been written in the proposed supplementary argument, it is artificial to suppose that there is not also an adverse effect on the hitherto perceived authority of D’Orta and maybe even Giannarelli involved in the proposed argument.
In our submission, there is absolutely no ground that has been laid for that to occur. Ironically, or perhaps forcefully, it can be observed that Attwells itself included a unanimous rejection of reopening of either D’Orta or Giannarelli. It is for those reasons, in our submission, not so much because the application is made late, but because it lacks merit and has not been demonstrated in an orthodox fashion as an appropriate application to grant, that the Court should reject it at the threshold.
KIEFEL CJ: If the Court were minded to hear argument about it in the course of the respondent’s submissions, would you be in a position to respond yourself?
MR WALKER: I think so. Perhaps more accurately, I hope so. I have not – all I have seen is what is written in the main submission and in the proposed supplementary submission. I think I am ready to meet those arguments.
KIEFEL CJ: Thank you. Mr Agius, we will hear argument in relation to your application for leave to reopen in the course of your submissions on appeal.
MR AGIUS: May it please the Court.
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: May it please the Court. Your Honours have seen in our outline for address, paragraph 2, that we adapt nearly verbatim the description of the informing justification and the rule or test borrowed from, as I say, the majority reasons in Attwells. In particular, the notion of contributing to the judicial determination of the litigation to which we refer in our paragraph 2 is at the heart of what is raised in this case, and that is to be understood, in our submission, as an explanation or description of the requisite functional connection, to use the terminology of this Court.
In this case, you will have seen the way in which the written and spoken argument in the Court of Appeal addressed that question. It is recorded in Justice Macfarlan’s reasons on pages 98 and 99 of the appeal book, in his Honour’s paragraphs 20, 21 and 22. I will not read them but, in our submission, in light of Attwells, then yet to be decided of course, the argument recorded, particularly in paragraph 38, appropriately attended to the question whether there was understood as being a contribution to the judicial determination for litigation, the functional connection between the allegedly negligent advice concerning a settlement offer and the eventual outcome of the case, which of course continued in the absence of settlement.
In our submission, the error of the Court of Appeal can be particularly demonstrated by the squareness with which it can be see that Attwells vindicates the argument that we put below, recorded in those three paragraphs.
In paragraph 3 of our outline we seek to elaborate that and in particular we would draw to attention, as we have noted in our written submissions, the content of paragraph [48] in Attwells in the majority reasons. Again, I will not read the passage but, in our submission, it can be said of this case, as it was said of the position being hypothesised in paragraph [48] of the majority reasons in Attwells that it is difficult to envisage how advice not to settle a case would ever have had, in our case, any bearing on how the case was thereafter conducted in court, much less how that advice could have shaped the judicial determination of the case. There is simply no connection, let alone a functional one.
The merely historical connection is, by the majority reasons in this Court in Attwells – see in particular the use of that phrase in paragraph [49] – to be distinguished from the requisite functional connection that is requisite for the rationale of the immunity to operate so as to produce an immunity. In our submission, ours is a case where there is absolutely nothing other than the merely historical connection.
One did not even have the making of consent orders, which is the converse case of course when the allegedly negligent work produced a settlement which was manifested by consent orders. Here, nothing whatever, except the fact that the case was conducted, as opposed to the manner or way in which it was conducted, can be seen to have any causal relation.
In paragraph 4 of our outline we take issue with the proposition that we appreciate is being put against us in this Court, namely that Justice Macfarlan was correct below in seeing that there was an infringement of the finality quality which informs the rationale for the rule. But it is clear, to demonstration from our pleading, not really canvassed as to that aspect by the reasons of Justice Macfarlan that we do not intend to say that there was anything wrong about either the mode of trial that produced the judgment in our favour but for some was disappointing, nor in the outcome in any respect. In any event, were we disposed to say that we ought to be met not by a so‑called finality principle but by the plain historical fact that we did appeal with the result that your Honours have seen in the record.
KIEFEL CJ: Do you say that the appellant’s claim, far from amounting to an attack on the judgment of the trial judge, relies upon it for the fact of damages?
MR WALKER: Yes, not simply for the disappointing difference between that and the amount we could have obtained had we accepted an offer but, of course, yes, very much that. It is not only that. It is also we do not complain about the way in which the case was run.
KIEFEL CJ: Is the issue which would arise in relation to the claim for negligence against the second respondent – or the issues would be one, whether there was a breach of duty and, secondly, would the appellant have accepted the offer if he had been told of it. They are the issues and therefore there is no challenge.
MR WALKER: Yes, that is correct. Now, we accept that the second issue is a very, very large issue and we know that it is hotly contested, but that is not an issue that casts any adverse light on our present position at this stage of the proceedings. At page 104 of the appeal book in paragraph 40, there is the culmination of Justice Macfarlan’s reasoning on this point concerning finality.
In our submission, it is mistaken and it is mistaken for the reasons that the majority in Attwells identified in paragraph [51], which again I will not read, but the point made by the majority in Attwells in paragraph [51] is that the question in the subsequent negligence action concerns the quality, negligence or otherwise, of the advice given for the conduct that meant that advice was not given “at the time [it] was given”, which of course, in a case such as the present, is before there is any hearing, cross‑examination, credibility diminution or judgment.
So, in our submission, Justice Macfarlan’s paragraph 40 is informed by a kind of anachronism which is identified by this Court in paragraph [51] of Attwells showing the error. That covers as well paragraph 5, proposition 5 in our outline for address, and I have already addressed what I can in‑chief concerning reopening in answer to the Chief Justice’s question at the outset. May it please the Court.
KIEFEL CJ: Yes, thank you, Mr Walker. Mr Agius.
MR AGIUS: Your Honours, the finality principle is engaged because of the likely scope of the action which is contemplated by the appellant in its case against his lawyers. It is insufficient, in our respectful submission, to look at only how the appellant says he will run his case against the lawyers that appeared for him in his personal injuries action. One needs to look at the whole of that case and the issues that that case will present, not simply that the appellant says, “Well, all I’ll do is point to this judgment, say it was accurate, rely upon it as fixing a certain figure and I want the difference”.
If this was an ex parte hearing, the case would end there. But, in our respectful submission, the case does not end there and our alternative submission is that even if the case does end there, the finality principle is still engaged. The reason for that is set out by Justice Macfarlan in paragraph 28 of his judgment on appeal book page 100 where he analyses the pleadings and he concludes what the true nature of the case to be run is. His Honour quotes from Donnellan v Woodland and applies a passage from the judgment of Justice Beazley, but further down, about halfway through paragraph 28, line 35:
Contrary to the applicant’s argument, I do not consider that the circumstances alleged in the applicant’s Amended Statement of Claim are materially different to those described in the observation.
Then he refers to the pleadings, in particular that the pleadings do:
not allege that the respondents failed to advise the applicant that an offer had been received. Rather, the allegation is that the respondents told the applicant that an offer had been made and did not give proper advice as to the amount of damages that the respondent was likely to receive . . . This is no different in principle to an allegation that the respondents gave negligent advice to reject an offer of a disclosed amount.
KIEFEL CJ: But the appellant’s point seems to be that neither Donnellan nor the judgment below, Justice Macfarlan’s reasons, deals with the question of how it is that the – by the appellant’s claim against the second respondent challenges in any way the judgment of the District Court and therefore the finality principle is not invoked.
MR AGIUS: Our submission is that it is not that the appellant’s case challenges the accuracy of the judgment. That is not the only way in which the finality principle can be invoked. It is if the issues to be determined in the case themselves could be seen as a challenge to the veracity or the accuracy of the findings made by the original trial judge.
KIEFEL CJ: How would that arise here? You have heard the exchange with Mr Walker. The appellant’s claim against the second respondent would necessarily rely upon the judgment given in the amount it was given for the assessment of damages but the issue – the central issue would be beyond the question of whether there was a breach of duty - would be whether or not the appellant would have accepted the offer of settlement. That does not involve any challenge to the reasoning or to the result reached in the District Court.
MR AGIUS: That issue does not. But the issue of whether or not the advice that was given was negligent does because the ‑ ‑ ‑
KIEFEL CJ: But that was not a matter before the Court.
MR AGIUS: His Honour explains how it would be involved in paragraph 40, on page104.
KIEFEL CJ: Well, that is, the respondents would seek to use findings but that does not mean that the appellant’s case itself has to involve a challenge. What use the respondents make of the findings is a matter for the trial judge.
MR AGIUS: But the fact that the respondents will be challenging the appellant and challenging his credibility and seeking to explain, as the respondents would have to do, why it is that their advice not to accept the offer was a reasonable and proper advice in the circumstances.
KIEFEL CJ: But what you are really saying, are you not, is that the action is going to throw up potentially difficult questions of causation and, amongst those questions will be whether things would have been different in any event and whether or not the outcome of the settlement negotiations would have been different and why the figure reached by the trial judge – how that figure was reached.
MR AGIUS: How it was reached and the issues involved in how that figure was reached and what was the true state of the plaintiff’s disability, as it was believed to be by those giving him advice.
KIEFEL CJ: But that would mean the respondents would be relying upon the findings and putting them against the appellant. But that does not mean that the findings would necessarily need to be reviewed or that anyone is seeking to impugn them. It is just the use that would be made of them.
MR AGIUS: The trial judge may well form the view that the assessment of the personal injuries trial judge was wrong.
KIEFEL CJ: How would that arise? Who would be putting that forward?
MR AGIUS: Well, it could arise because of the trial judge’s independent assessment of what the extent of the disability of the plaintiff was when he sought advice from the defendants.
KIEFEL CJ: How could that arise as an issue in the proceedings? It would not arise on the appellant’s case because the appellant would be relying upon the amount received to indicate the level of damages
MR AGIUS: I can put it no better than was put by his Honour:
In these circumstances it might be held that the amounts awarded were quite different from the amounts that reasonable lawyers in the position of the respondents could have assessed as the appropriate range of damages award (because these lawyers might well not have been able to foresee the attack on Mr Kendirjian’s credibility and its results). This would lead to an apparent conflict between the judgment in the professional negligence action and those in the personal injury action.
But we also prayer in aid what fell from his Honour Justice Nettle at ‑ ‑ ‑
EDELMAN J: Is that really a conflict? Even if the premise is accepted, is not the question really one of whether or not the decision that was given, assumed to be correct, was one that was essentially too remote or one which was not reasonably foreseeable at the time that advice was given?
MR AGIUS: That is one aspect of it, but it could be that the trial judge would form a different view of the true state of the disability and the appellant’s entitlement to damages, and if he does, and indeed even if that matter is litigated, even before the judge forms an issue, there is a risk that there will be inconsistencies between what was found by the personal injuries trial judge and the trial judge hearing the negligence action.
In our submission, there is a possibility of relitigation of issues determined at the trial, including weight to be given to evidence given by the appellant and a reassessment of his credibility and his reliability and there is an assessment of his credibility and reliability in relation to his disability and in relation to what he said his disability was at various times already in existence, and his credibility and reliability on those very same issues, which has already been the subject of a trial, is very likely to arise in the defendant’s case in the professional negligence action.
What if the judge in the professional negligence action is invited to form a view about the appellant and he forms a view which is contrary to the view of the original trial judge concerning his reliability or his credibility? What if other witnesses are called also dealing with that issue in relation to ‑ ‑ ‑
KEANE J: Why are you asking us these rhetorical questions?
MR AGIUS: Because they raise ‑ ‑ ‑
KEANE J: How do they arise?
MR AGIUS: They will arise because one would expect his credibility to be under attack by the defendants in the professional negligence action.
KIEFEL CJ: But the mode of attack would be to rely upon the trial judge’s findings.
MR AGIUS: No, the defendants will be seeking to achieve a finding that their advice was proper and reasonable.
MR EDELMAN: At the time it was given.
MR AGIUS: At the time, and that will depend upon ‑ ‑ ‑
KEANE J: That is, sort of, a favourable way of dealing with the facts that we have got before us which is that they did not give any advice at all.
MR AGIUS: Well, no, they did give advice. Their advice was that the offer was too low.
KEANE J: There has been an offer and it was too low.
MR AGIUS: That it should not be accepted.
KEANE J: Can I ask you this? If these were the facts, if the appellant came to your client before the proceedings were commenced and said here is all the evidence about my injuries. I have been offered this sum, the amount that was offered, in fact, in the case and if your client had said I advise you to reject that offer and to commence proceedings and pursue them to judgment, would you accept – or would you suggest that the immunity would apply in that case?
MR AGIUS: In a circumstance where the person who gave the advice went on to run the trial?
KEANE J: Yes.
MR AGIUS: We would say, yes, the immunity would be engaged. The reason why the immunity would be engaged would be we need to break down what it is that the advocate would be doing in running the case. The advocate would be making a decision about what evidence to call in order to fulfil his instructions about the amount of damages that the plaintiff was seeking and there would be any number of decisions made in the course of the trial to advance the plaintiff’s case in order to achieve a particular result.
KEANE J: Do you have any case where advice to commence proceedings, negligent advice to commence proceedings that fail has been held to be within the immunity?
MR AGIUS: No, but Justice McHugh indicates in his judgment that advice to continue a proceeding, that is, which would be incorporated in a review of the pleadings, for example, would be covered by the immunity. So, counsel who is running the case would form an assessment of how the case should be run and in running that case is making any number of decisions which are reflected in how the case is run.
KEANE J: So, do you accept that ‑ so is that something that you say makes advice to continue proceedings different from advice to commence them?
MR AGIUS: Different from advice to commence them and different from advice to settle them because you are influencing the running of the case.
KEANE J: Well, how can that be right when in the case I put to you the advice is, run the case, run the case to judgment, this offer is too low?
MR AGIUS: But then your Honour said, as part of that example, that that same counsel would in fact be running the case. So, our submission is that in running the case ‑ ‑ ‑
KEANE J: So this immunity clothes him, once he gets into court.
MR AGIUS: Yes.
KEANE J: Even though his negligence has occurred entirely outside court.
MR AGIUS: Because it is connected with what he is doing in the court in running the case, it is connected in factual way ‑ ‑ ‑
KEANE J: As Mr Walker would say, only historically.
MR AGIUS: Well, we say that is one of the errors ‑ ‑ ‑
KEANE J: It is true to say that but for that advice, the proceeding might not have commenced, but it has not got anything to do with what is put before the judge and the judge’s determination of the case.
MR AGIUS: Well, in our respectful submission, to say that it is historical is only to provide part of the answer. Of course, it is historical because it precedes the running of the case, or it could be even during the running of the case and it precedes the final announcement of judgment or verdict, but it is more than historical because the assessment upon which, in our case, the advice is given is what determines how the case will be run. You cannot assume that the case would have been run in the same way, no matter what. It would be entirely artificial to draw the line; it is effectively drawing the line at the door of the court.
KEANE J: The case against you is that the case would not have been run to judgment at all.
MR AGIUS: Yes.
KEANE J: Not how it would have been run.
MR AGIUS: That is the appellant’s case against us but ‑ ‑ ‑
KEANE J: That is right.
MR AGIUS: ‑ ‑ ‑ that case stops short of an examination of what issues would be raised in the course of the case, if it were run. So, there are two different matters at issue here and we are careful not to conflate them. One is whether or not what the lawyers did had some effect on the result, at first instance; and the second issue is, how it is in the professional negligence case it is likely, or indeed possible, that a conflict could arise between the evidence or findings in that case or a challenge could be made which does not sit with the findings of the first trial judge. They are two separate matters.
BELL J: The findings in the professional negligence case will reflect the evidence of what it was that the lawyers had by way of instructions and what material in support of the claim and at the time the offer was made. It is ‑ ‑ ‑
MR AGIUS: Yes. Precisely, we do not ‑ we cannot resist that, but in coming to the resolution of that issue, the appellant’s credibility will be very much in issue about what he says he told the lawyers. Now, his Honour Justice Macfarlan makes plain that that is an element of this case, the way in which it is pleaded. It is really a negligent advice case and so the respondent or the defendants would be entitled to prove that their advice was reasonable. Now, that would depend upon what facts they were given. In that issue ‑ ‑ ‑
BELL J: There could be a controversy about that, but why would a controversy about what the respondent said to his legal advisers concerning the nature and extent of his injuries – why would the resolution of that by the trial judge in the professional negligence claim reflect one way or another on the quite separate issue of the findings made by the trial judge in the claim on the evidence that was before him?
MR AGIUS: A separate issue in terms of the final determination but covering much of the same material in terms of the appellant’s credibility and how believable is the appellant when he says, these are the primary facts that I gave to my lawyers. And look at what he said about his disabilities when he gave evidence before the trial judge, look at the findings that the trial judge made about his credibility. We want you to make your own assessment of his credibility. And then there is an issue about possible conflict between one judge determining certain facts concerning the credibility and reliability of this person when he speaks of his disabilities and another judge forming a different view.
BELL J: But they are as to different matters. There would be no inconsistency in the judge in the professional negligence action concluding that the respondent was credible in his account of the things he had told his lawyers.
MR AGIUS: One would expect that the appellant in his action against the lawyers will deny the truth of the findings made by the first trial judge concerning his exaggerating his disabilities. One will expect that the plaintiff will say, “No, I had all those disabilities and that is the advice I gave my counsel” – I am speaking very broadly – “but there is a finding that challenges that. There is a finding that says, well, he did not; he actually exaggerated all of those disabilities”.
KIEFEL CJ: Speaking for myself, Mr Agius, I just do not see how that could arise – how a challenge by the appellant as plaintiff could arise of that kind. It certainly does not appear from the pleadings.
MR AGIUS: It does not arise in his case, but it does arise if an attack is made upon him and his credibility in the case run by the defendants.
KIEFEL CJ: His credibility in what respect? As Justice Bell – speaking in such generality, credibility in what respect, that he should not be ‑ ‑ ‑
MR AGIUS: Believed.
KIEFEL CJ: ‑ ‑ ‑ believed about what was said to him in relation to the settlement offer? That is where the credibility would operate.
MR AGIUS: His credibility as to what he said to the lawyers about his disability.
KEANE J: Which has nothing to do at all with any issue litigated in the earlier proceeding, absolutely nothing.
MR AGIUS: One expects that he will say that he said – he gave his lawyers a history which was consistent with the history that he gave in his evidence in‑chief during the course of the first trial and his credibility about whether he gave that history to his lawyers will be under attack because of what will be said to be his inaccurate evidence when he gave evidence himself about what the true state of his disability is.
KIEFEL CJ: Well, perhaps that is where it runs over into the other action – the earlier action. From what you say, the second respondent would be saying “If I and the solicitors had known the truth about the extent of your disabilities, that they were not quite as great as you said they were, we would not have advised you to reject the offer”. That forms no part of the attack on what the trial judge found on the basis of the evidence put before the trial judge.
MR AGIUS: But it may lead to an inconsistent finding about the credibility of the appellant.
GORDON J: Mr Agius, for my part, I would be grateful if you could at some point come back to the facts of this case. The facts are these, are they not, that we are assumed to accept that this offer was rejected without instructions? Now, if that is the way it is set out in the pleadings, that is what it says, that is what we are bound to accept, can you explain to me how, if that fact is the fact upon which this Court is to operate, the consequence that befalls the client as a result of that could ever have been correct within the litigation in which the client was engaged?
MR AGIUS: The case does not go so far as to suggest that the offer was rejected without instructions.
GORDON J: That is what it says in the pleadings.
MR AGIUS: It is that – there is a finesse here. It is that the offer was made. He was told about the fact of the offer. He was not told about the quantum and he was told it was too low and it was rejected.
GORDON J: Well, it is not what is pleaded as I read it on appeal book 4 at paragraph 8.3:
The offer was rejected by the Defendants absent any express instructions from the Plaintiff but based upon the advice . . . that the offer made by the defendant was “too low”.
MR AGIUS: Yes, we read that as being any instructions to reject that offer because he did not know the quantum of it. There is ample room for a case that he had previously given instructions as to what his “bottom line”, if you like, was.
GORDON J: Well, we could have a lot of hypotheticals, but this Court is being asked to look at facts which are pleaded which are set out in paragraph 8, as I understand it, in relation to the plaintiff, and then responded to on page 9 at paragraph 20(vi).
MR AGIUS: I just want to check - that seems to be a pleading against the first respondent.
GORDON J: It is repeated I think – you can see it in paragraph 17. It is repeated in “paragraphs 1 to 9B above” in relation to the claim against the second defendant.
MR AGIUS: I see the particulars at paragraph 20 are that we did not provide the plaintiff with advice as to the range of outcomes in the proceedings and we did not provide other advice to him. The issue is still a significant issue as to what it was that passed between the appellant and the defendants and his credit in relation to that will be probably determinative of those issues, but I can put it no higher than that there are going to be findings as to his credit because they clearly will be sought because his version of events is denied on the pleadings and there is a real possibility that those findings will be different to the findings of his credit made in the first trial.
They need only be general findings as to his credit, but they will relate to the issue of what he said about the true state of his disability, which is the same issue that was being tried by the judge - what is your evidence as to the true state of your disability? So I can put it no higher than that.
In relation to the way in which Justice Macfarlan saw the case, in the paragraphs that are identified, we pray in aid what was said by Justice Nettle who was in the minority in Attwells at paragraph [72] where he deals with advice to reject an offer of settlement and he says:
a subsequent claim by the defendant that the advocate was negligent in advising against settlement would call into question whether the advocate had a reasonable basis for so advising. As the majority observe, in principle that might not necessitate establishing that the judgment was wrong. But it would necessitate re‑litigation of issues determined at trial, including: the strength of the plaintiff’s case; probably, the appropriate weight to be given to the evidence, taking into account considerations of credibility and reliability of witnesses; and the correct application of legal principle and authority.
NETTLE J: That is a dissenting view, Mr Agius.
MR AGIUS: I understand that but very eloquently put, if we may say so.
NETTLE J: It is gone. It was said but it is gone. It has lost its effect, if it ever had any.
MR AGIUS: There was not any real argument on this point before the Court in Attwells because the Court there was not dealing with a case where the advice was to continue or to reject an offer and, although the majority express opinions on that factual circumstance, there was not anything like a full argument in relation to that.
KEANE J: Well, there was – there was actually, Mr Agius. There was actually the argument that is put - that was put on behalf of the unsuccessful party and it is summarised at paragraph [47]. It was actually argued that it would be anomalous to determine Attwells the way it was, given the advice not to compromise would be within the immunity, so that argument was precisely put.
MR AGIUS: Well, the argument, as I understand it, and obviously I was not there but I read the submissions, seemed to be yes, this would be an anomaly and there is an assumption – the Court found that there was an assumption in that anomaly and the assumption on which the respondent argument depends, that is, the negligent advice not to settle is intimately connected with the ensuing judicial decision of the Court so as to attract immunity is not sound. The respondent cited no authority in support of this assumption.
Now, Donnellan v Woodland was cited in the written submissions of both parties but not on that point. It was cited in respect to factual scenarios which reflected a settlement of the case, not advice not to settle. However, Justice McClelland refers to a statement by Justice Beazley, as she then was, in Donnellan v Woodland at appeal book 100, paragraph 27, and that was that very same kind of case where advice not to settle was given and the matter proceeded to a hearing.
The Court, with respect, in Attwells was not taken to Donnellan v Woodland on that point. It was taken to it in the written submissions on another point, factual scenario relevant to the case in Attwells, but not on this point. So this Court never had the benefit of the decision of the Court of Appeal, which was a five‑member Bench decision of Justice Beazley with whom Justices Barrett, Hoeben and Sackville agreed on that very point, which is a case much similar in facts to the case we are dealing with here. That led his Honour to say at paragraph 28:
If correct, this observation would require Mr Kendirjian’s appeal to be dismissed given it refers to a situation similar to the present, that is, one where negligent advice or an omission to advise leads to the continuation of court proceedings. Because the observation constitutes seriously considered dicta, is not plainly wrong . . . and is consistent with the other authorities discussed below, the correctness of the observation should be accepted.
Then his Honour goes on to examine the pleadings in this case and to determine that the case sought to be run:
is no different in principle to an allegation that the respondents gave negligent advice to reject an offer of a disclosed amount.
So perhaps I put it too broadly but, although the issue of the anomaly was raised, there was no reference to this important passage in Donnellan v Woodland and it was the state of the law in New South Wales as at the date of the appeal. But our submission is ‑ ‑ ‑
KIEFEL CJ: Well, that was not quite right, was it? The state of the law was Giannarelli v Wraith and D’Orta‑Ekenaike. The question is whether Donnellan understood what was said in those cases.
MR AGIUS: Donnellan purported to apply D’Orta and not Giannarelli to the extent that Giannarelli encompasses the reason – the test of President McCarthy in the New Zealand decision of Rees v Sinclair.
Our submission is that in stating the tests in D’Orta the majority or the plurality did not pick up the words “the work” and that is significant, in our view. In D’Orta, at 86 – I am sorry, I said “the work”; I meant “the way”. That is an error. Paragraph 86.
KIEFEL CJ: That is in 223 CLR 1?
MR AGIUS: At 223 CLR 1, at page 31:
Again, we consider that no sufficient reason is proffered for doing so. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or “work done out of court which leads to a decision affecting the conduct of the case in court” or, as the latter class of case was described . . . “work intimately connected with” work in a court.
The court did not pick up the words “the way in which the work was done in the court”, which McCarthy had included in his definition in Rees v Sinclair and which had been approved by the Court in Giannarelli.
Now, one of the matters we seek to raise is the question of what is the test. It is an alternative argument because our submission is that the work done by counsel in continuing to run the case does engage in the test because it reflects itself in the judgment of Judge Delaney because of all the decisions that would have been made by counsel in presenting the appellant’s case. But, in the alternative, our submission is one that supports Justice McClelland’s judgment with whom the other judges agreed at paragraph 42.
I turn now to consider Mr Kendirjian’s reliance on McCarthy P’s formulation in Rees v Sinclair of the test for when out of court work will attract immunity. That formulation describes the test as applying where work affects the way a case is conducted. Although this was approved in Giannarelli, it was not adopted by the plurality in D’Orta which is the High Court’s most recent pronouncement on the issue and one that this Court is bound to follow. As noted above, the effect of the pronouncement is that the immunity principle applies to:
“work done out of court which leads to a decision affecting the conduct of the case in court” –
and to:
“work intimately connected with” work in a court.
Those two quotes come from paragraph 86 of the decision in D’Orta.
BELL J: How is it that you say that those considerations are not picked up in the plurality reasons in Attwells at paragraph [46]? I am sorry, I understood you to be saying that ‑ ‑ ‑
MR AGIUS: The submission I put was – well, I hope to put, was a test applying where the work affects the way a case is conducted. That formulation was not picked up by the majority in D’Orta. Now, in Attwells at – and this is a matter we need leave to raise, if I might be permitted to present this aspect of the argument ‑ in Attwells, the majority said, speaking of the formulation of the test by McCarthy in Rees v Sinclair, the test is set out in paragraph [2] of Attwells and then in paragraph [3], the majority say:
This statement of the scope of the immunity by Mason CJ was confirmed in D’Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity –
and there is a reference there to paragraph [7]:
“there is no reason to depart from the test described in Giannarelli as work done in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’ ‑
Now, that footnote, footnote 8, is a reference back to paragraph 86 – sorry, footnote 7 is a reference back to paragraph 86 of the decision in D’Orta and footnote 8 is a reference to the judgment of Chief Justice Mason at (1988) 165 CLR 543 at 560 in Giannarelli v Wraith. Now, the point is that at 7, the quote from D’Orta, there is no reference to the words “the way the cause is to be conducted”.
BELL J: That is why I was directing your attention in Attwells to paragraph [46] where it is pointed out that:
Once it is appreciated that the basis of the immunity is the protection of the finality . . . it can be more clearly understood that the “intimate connection” between the advocate’s work and “the conduct of the case in court” must be such that the work affects the way that case is to be conducted so as to affect its outcome by judicial decision.
MR AGIUS: Our respectful submission is that that statement is wrong because it is built upon a misunderstanding of what the court in D’Orta said in paragraph 86. The court in D’Orta at paragraph 86, which is referred to in paragraph 3 of the judgment, does not include the words “the way the case is to be conducted”, yet in paragraph [46] ‑ ‑ ‑
BELL J: Yes.
GORDON J: It refers to a decision affecting the “conduct” of the case in court; sounds pretty close to me.
MR AGIUS: Well, I can put the submission no higher than that. The conduct of the case in court does not necessarily pick up, in our submission, everything that was done which is functional in court. It is nowhere near as limiting as the way a case is conducted. There is a focus on specific matters about the way a case is conducted or, as this Court has held in Attwells, introducing another test, the functional connection between the work of the advocate and the determination of the court.
So, our primary submission is that there is such a functional connection but our alternative submission is that that overstates the test in D’Orta. There is no reference there to either functional connection or the work done but simply “leads to the conduct of the case”. Now, in our respectful submission, it is that latter test which Justice Macfarlan makes plain in [42], whilst the test that had been adopted as the law in New South Wales, that was what was said to be the D’Orta test.
Our submission is that that was an appropriate way to deal with the effect of paragraph 86 in D’Orta but as I have said, it is an alternative submission. We have already put our submission about how it is that the actual conduct of the case, the calling of the evidence, the deciding what evidence to call is a functional connection with the determination of the case.
Let me proffer an example by way of demonstration of the point. What if the advocates, for whatever reason, formed a view that $200,000 was an appropriate sum of damages and that the offer of $150,000 should be rejected, and the advocates’ view was that there was a case to be made for a Griffiths v Kerkemeyer claim, that damages could be awarded for the care provided to the plaintiff, and he conducted the case on the basis that there was a Griffiths v Kerkemeyer claim and the judge rejected the Griffiths v Kerkemeyer claim because he did not accept the evidence of the plaintiff or the plaintiff’s wife that that kind of care and attention was actually given in the terms in which it was claimed?
Now, the counsel in that case would have made decisions about running the Griffiths v Kerkemeyer claim. Decisions may have been based upon negligence but the running of that claim clearly affected the – or reflected itself in the judgment that was made and clearly counsel in that case would be protected by the immunity.
Our submission is that that example is very close to the facts in this case where counsel clearly made a decision that this case should be run, that the offer was inadequate, that the evidence that counsel had judged and formed an opinion about and which he was proposing to run would meet his assessment and, as it turns out, that has exposed the plaintiff to findings which are adverse to his credit and consequently it has led to a judgment which was lower than would otherwise have been the case.
In our submission, the immunity should apply to both sets of circumstances. It focuses on what is involved in the actual running of the case. It is not just the words in this case, “That offer is too low”. One has to take into account how the case was run, because the fact that the case was run and, indeed, the way the case was run, is reflective of counsel’s opinion that the offer was too low.
So, in our respectful submission, the advice on the doorstep of the court is intimately connected in a functional way with the way the case was run, and therefore intimately connected with the judgment that was delivered, and that is our primary submission. In that way, we submit that we have satisfied the test. That completes my submissions on that point. Actually, my note reminds me that there is one other reference that I wanted to take the Court to, and that is the statement by Justice McHugh at paragraph 157 of D’Orta on page 53.
KEANE J: It can be noted that what Justice McHugh says at paragraph 157 does not really support what Justice Beazley made of it in paragraph 27 of Justice Mcfarlan’s judgment at page 100 of the record. Justice McHugh said:
the giving of advice is an integral part of an advocates’ role.
What Justice Beazley then says is not a paraphrase of anything that Justice McHugh says at paragraph 157.
MR AGIUS: Well, her Honour is applying what his Honour said, giving advice is “an integral part of the advocate’s role”.
KEANE J: Yes, and if you read the whole paragraph you come to the end where his Honour says:
There is no relevant distinction between instructions given on negligent advice and the negligent carrying out of instructions if both are intimately connected with the conduct of litigation.
It is leaving the question whether those things have occurred in a way that is intimately connected with the conduct of the litigation open for determination.
MR AGIUS: Yes.
KEANE J: Her Honour seems to be treating – well, her Honour leaves the same question open, seems to answer it in a way that would suit your side ‑ ‑ ‑
MR AGIUS: She, with respect ‑ ‑ ‑
KEANE J: ‑ ‑ ‑ without any support in the observations of Justice McHugh for that view.
MR AGIUS: We would submit that there is support in the observations. His Honour says:
The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence.
So the question is the issue is whether the relevant connection with the conduct of the litigation exists, and then in answer to that issue he says:
An integral part of the advocate’s role is the giving of advice on the basis of which the client will give instructions that direct the course of proceedings.
KEANE J:
that direct the course of proceedings.
MR AGIUS: Yes, and the advice is critical to and often determinative of the client’s decision. There is no relevant distinction between instructions given on negligent advice and negligent carrying out of the instructions if both are intimately connected. Now, the advice here that the offer was too low and, therefore, we are continuing with the case, was critical to the conduct of the litigation because everybody marched into court and the litigation continued, not simply as a matter of history but on the basis of that advice.
The advice was causative. It was not simply historical and it was causative not just of the fact that the case continued but it is illogical not to think that having given that advice the opinion that the offer was too low guided counsel in the way in which counsel continued to run the case or ran the case. That led to the adverse findings against the plaintiff which reflected themselves in the judgment.
So, our submission is that it is intimately connected with the conduct of the litigation even though the advice was given out of court and it cannot be artificially, in our respectful submission, separated from the actions of counsel in continuing to run the case.
In our outline we have referred to some arguments that we would seek to incorporate in our submissions today and at paragraph 9 of the written outline we refer to the statement of Justice Giles in Symonds v Vass [2009] NSWCA 139, also at 257 ALR 689 at paragraph [26]. I understand we have provided photocopies of the ALR record of the decision and I can take the Court to what Justice Giles said in paragraph [26] in speaking of the rationale for the immunity enunciated in D’Orta. His Honour said:
The rationale enunciated in D’Orta‑Ekenaike could bring a wide application of the immunity. Whether the work is negligently performed through act or through omission, and whether or not it leads to an overt decision, there cannot be re‑litigation in which it is asserted that, but for the negligence, a different result would have been reached. According to the rationale –
and these are the words we rely on:
it does not matter that the client does not seek to overturn the prior result, but uses it as the basis for complaint.
Now, in our respectful submission, what the appellant is seeking to do here is to use the finding of Judge Delaney as a basis for his complaint in his action against the lawyers because he is using it as an integer in the calculation of his damages.
KIEFEL CJ: But the way in which Justice Giles refers to basis for complaint is explained by what follows:
The re‑litigation is regarded as challenging a lawful result –
That is not what the appellant would be doing in his litigation. He would be relying upon the amount of damages awarded by Judge Delaney as part of the assessment of damages. He would not be challenging it.
MR AGIUS: I appreciate that, but I am trying to use those words in a different context and say if it is the case in the circumstances described by Justice Giles, the logic would also apply for it to be the case here where the appellant himself would be relying upon the decision, and in the course of the conflict in the professional negligence case the explanation for that decision would emerge; that is, the lack of credit findings made about him, and this takes us back to my earlier argument about the way in which those findings are likely to lead to a conflict, or could lead to a conflict, with the findings that were made by the trial judge.
Our final submission on this issue of finality is that, whilst we recognise that the justification for the immunity is the finality principle and that principle as set out in D’Orta:
controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances –
Offence to the finality principle in a particular case is not necessary for the immunity to be applied in that case and that is apparent from the decision in D’Orta at paragraphs 80 to 82. For example, where the Court dealt with the application of the immunity to circumstances where there was no offence to the finality principle, for example, an attack upon an intermediatory decision in D’Orta. At paragraph 80 on page 29, beginning at the last sentence in paragraph 79:
The final outcome of the proceeding, whether “civil” or “criminal” or a hybrid proceeding, must be incontrovertible by the parties to it.
If that is right, it follows that no remedy is to be provided if its provision depends upon demonstrating that a different final result –
and the word “final” is emphasised:
should have been reached in the earlier litigation. Cases such as the present, in which the challenge made is to an intermediate result, can then be seen to be exceptional. The contention would be that, even if a client cannot say that a different final outcome should have been reached, the client may nonetheless complain about an intermediate result.
I will not read aloud, but the Court goes on in paragraphs 81 and 82 to explain that in some circumstances although the principle itself is rooted in the finality doctrine or the finality principle there can be cases, admittedly exceptional, where offence to the finality principle in that particular case is not intended and does not occur and is not necessary for the immunity to be applied.
An alternative argument is that in a case such as this, where counsel continues to run a case, having given advice in relation to settlement, that is a case where, if a finding is made that the work of counsel did not reflect itself in the findings by the trial judge, it is nonetheless appropriate case where the immunity should be applied even if the finality principle is not engaged.
We say that because it is very difficult in a case like this to determine what was in the mind of counsel when counsel continued to run the case and to try to determine what and how it was that the counsel came to make whatever decisions about how the case would be run and what evidence should be led.
In those circumstances, it is our submission that even if the finality principle is not clearly engaged when one examines what is known about the facts of this case an exception should be made and the principle of immunity should be applied to the facts of this case, even if the finality principle is not engaged.
D'Orta is authority that a principle can be applied in circumstances where the finality principle is not engaged, even if the immunity principle is rooted in the finality principle. This is one of those cases – and this is our alternative argument – this could be seen as one of those cases which falls in the grey area simply because it is just not possible to know, in a particular case, how decisions made by counsel affected the conduct of the case.
What you can see are the facts. You can read the transcript and you can determine that certain evidence was called and that the case was conducted in a particular way, very difficult to determine how those facts are reflective in counsel’s mind of the assessment that the offer made was too low or, alternatively, that the case was worth more money and it was in the plaintiff’s interests to continue running the case. So, as an alternative, we would urge that approach.
So far as the matter for which we have sought leave is concerned, I believe I have covered what we wanted to say concerning the grant of leave to raise the point dealing with the difference in the test in Giannarelli and the test as recorded by the majority in D’Orta.
It is apparent from the decision of Justice Macfarlan in which he was joined by Chief Judge in Equity Bergin and Justice of Appeal Leeming, it is apparent that in New South Wales the Court of Appeal took a view that the tests were different. That is reflected in Justice Macfarlan’s decision at paragraph 42 on page 104.
In our respectful submission, that aspect of the matter had not been drawn to this Court’s attention in Attwells. It is a significant matter and, indeed, the Court in Attwells on this point was not taken to Donnellan v Woodland although it was taken to it on another point. In our respectful submission, that is an important matter which would favour the reception of these arguments and the consequent reopening of our case.
In relation to the merits of that argument, if it has any, we stand by the argument but I have no more to say about it. We do submit that statements in the majority judgment in Attwells about whether the immunity applies to advice not to settle are strictly obiter. They are not a necessary part of the judgment. We are not seeking to challenge the actual decision in Attwells. We do not need to. This is not a case where there was advice to settle. This is a case where there was advice not to settle and that led to the continuation of a case in court by counsel who gave that same advice.
On that factual basis alone, statements made in Attwells should not be adopted by this Court and, indeed, we invite this Court not to follow them. In particular we refer to what is in the majority judgment at paragraph [48] where the Court spoke, or where the majority spoke of:
The assumption on which the respondent’s argument depends –
not being supported by authority. In our respectful submission, it was supported by authority and we have taken the Court to that authority. Justice Macfarlan refers to it in the judgment. Paragraph [49]:
The respondent’s assumption depends on the view that a merely historical connection between the advice and the outcome of the case, in the sense that one event precedes another as a necessary condition of its occurrence –
Our submission, with great respect, is that is a straw‑man argument. We are not arguing that a merely historical connection between the advice and the continuation of the case is the engaging factual circumstance. Rather, we say that the giving of the advice and the continuation of the running of the case is in fact a continuum and the running of the case must have involved decisions by counsel as to how the case would be run and the very fact that the case was run in any state at all to conclusion, must satisfy the condition that the running of case, based as it was upon the advice, was reflected in the judgment.
So it is not just that as a matter of history it led to the end of the case. It is that as a matter of fact and as a matter of causation it led to the form of the judgment. The example given in paragraph [50] of the judgment:
The insufficiency of a mere historical connection between an advocate’s work and a litigious event may be illustrated by reference to negligent advice to commence proceedings which are doomed to fail.
Well, our submission about that is, yes, that is an example of a historical connection but, in our respectful submission, it is not a relevant consideration in this case because we are not dealing here with a case that was doomed to fail. It did not fail. We are not dealing with a case where the advice was to continue a hopeless case. In the case where advice is to settle, no case runs.
In the case such as the present, if a case were doomed to fail and advice ought to have been that the case should not be run, there is nothing for that advice to operate on which is intimately connected with the running of the case, other than an historical connection and we distance the present case from that example.
In paragraph [51], we do not disagree that a central question in this case, if it were permitted to run now, would be what were the instructions that were given by the plaintiff to counsel, what was the quantum of the offer and whether or not the plaintiff would have accepted the offer. We do not dispute that they are questions that are likely to arise in the running of
the case, but we say that one cannot simply look at the case from the plaintiff’s perspective when applying the test.
One has to look at the whole of the case and to examine whether or not it is possible that findings in the case, evidence sought to be led in the case which leads to findings, could lead to a result which conflicts with the result in the primary case - need not conflict with the verdict and judgment – but it may conflict with a finding in that case, for example, about the appellant’s credibility. That would be sufficient, in our respectful submission, to engage the test.
One last matter which we have referred to in our outline, we note that order 8 in the notice of appeal seeks – it seeks an order for leave to file and serve a further amended statement of claim. Our submission is that, if the Court reaches order 8, it ought not to make that order. It is a matter that is more properly dealt with by the court of trial, if there is to be a trial.
KIEFEL CJ: Yes.
MR AGIUS: There has not been any argument in relation to it and this is not an appropriate venue to argue whether or not a further amended statement of claim should be permitted. There may not be any dispute about that, but it is not something that had found its way into our written submissions because there was no submission in support of order 8. Unless there is any other matter on which I could assist the Court, they are our submissions.
KIEFEL CJ: Yes, thank you, Mr Agius.
MR WALKER: My friend is right on that last point. It is a fugitive from unfinished business on the motion, but it will need to go back to the first instance court if that is the position reached. There are just two points I want to add in reply, apart from the general proposition that nothing has fallen from our friend to place this case in the special category of leave being granted to reopen a previous decision of this Court, let alone one so recent.
Your Honours, it is in the nature of a furphy to suggest that the use of the expression “the way” in elocution such as the way in which a case is conducted, has presented some jurisprudential divide in this Court, or for that matter, in the New Zealand authorities which, at the time, were being drawn upon by Sir Anthony Mason.
On our researches it is just not possible to detect in the issues argued and determined, respectively in Giannarelli and D’Orta, any such distinction and, indeed, it is a distinction which is very elusive to articulate. If one – I do not need to take you to it, but give you the references – the passage which a become locus classicus in Giannarelli is, of course, at the foot of 165 CLR 559 to the top of 560 in the Chief Justice’s reasons. That is where the quotation from Mr Justice McCarthy in Rees v Sinclair [1974] 1 NZLR 180 at 187 is to be found with, what I might call, according to our friends’ arguments, the offending word “way”. That is where it is found.
But, of course, the top of that page 560 contains the passage upon which our learned friend relies and which, in our submission, spuriously – that is, without any substance to it – in the Court of Appeal reasons is regarded as standing in a different case from and, indeed, being different doctrine from the words that you find about eight lines further down that page, that is the phrase:
the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court.
As a matter of English and concept, how does one affect the conduct of a case other than altering the way in which the conduct is carried out?
It is not possible to give sensible meaning to the notion of an effect which does not involve saying, “This is the way or manner in which it would have proceeded but for this influence which has affected it”. So there never has been any substance and this Court has never, until today, needed to entertain an argument that somehow distinguished between affecting conduct and affecting the way in which a case is conducted.
You can see that from the way the issues were presented by the parties in Giannarelli - Dr Pannam’s argument summarised at page 547, including the passage at point 5 on that page, of 165 CLR, and Mr Charles’ argument summarised at page 552, particularly the passage at point 3 on that page. They are talking there, holding out rival consequences, about the way in which people will conduct themselves in court and will conduct a case, and in which litigation will be conducted.
That passage which, true, was only to be found in the Chief Justice’s reasons, was then of course taken up in D’Orta–Ekenaike in the passages to which your Honours have been taken in detail. To give you the reference, 223 CLR at 31, where in paragraph 86 the reasons which provide the authoritative statement in this Court quote, as footnote (124) makes plain, from that passage at 560 of 165 CLR.
It is just, in our submission, absurd to suppose that their Honours - none of them your Honours- their Honours were intending to quote the first and second line but not the eighth line in a passage which proceeds, as it were, in one judicial breath to one thought that Sir Anthony is expressing in that whole passage.
That is particularly so when one sees in D’Orta that paragraph 87 immediately following proceeds to call in aid Sir Anthony’s explanation of the classical statement, his classical statement, in support of it in this Court in D’Orta. Now, it is to be recalled that D’Orta included an application to reopen Giannarelli. That was decided not to do that and then in Attwells both Giannarelli and D’Orta were the subject of such an application, again refused.
In our submission, one thing that does emerge when one looks at those authorities is that there is simply no point in this supposed distinction in conduct and the way in which a case is conducted. There is, as well, when one goes to paragraph 67 in D’Orta 223 CLR at 26, the examples are there given by the Court starting:
A 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 –
That is all about the way in which the case was conducted or, to use another of the words one finds, the manner in which it was conducted. There is simply nothing in this point of supposed doctrinal error by this Court in Attwells which, it may fairly be said in support of our learned friend’s argument about that, does emerge as a suggestion in the reasons in the Court of Appeal in this case.
There is a suggestion, I regret to say, that this Court appears to have proceeded per incuriam in Attwells, but that is just not true. It would be per incuriam this distinction which upon cursory examination just does not exist at all and has never been the subject of, as I say, argument or decision until today.
Your Honours, that is why, in our submission, there is a seamless combination of the classical passage in Giannarelli, its reinforcement rejecting an attack on Giannarelli in D’Orta, and then its acceptance, again after rejecting an application to reopen D’Orta, by this Court in Attwells. All of that is found as one would, with great respect, expect it to be found in such a judgment that is considering whether to reopen a course of authority.
At the very outset of the majority reasons in Attwells – I will not quote from it, but it is paragraphs [2] and [3]. Paragraph 3 commences with the expression, “This statement of the scope of the immunity by Mason CJ”. I need hardly point out that that is a statement where this Court did not stop
the extract from Chief Justice Mason at the top of page 560 but went down to include Mr Justice McCarthy’s embedded quotation as well.
It is for those reasons, in our submission, that there is a consistent, uncontested course of authority by which it appears there is no such distinction. If there is no such distinction this Court, with great respect, was certainly not per incuriam about its operation and the Court of Appeal was simply wrong to make those observations in advance of the position in Attwells. There was no per incuriam proceeding by this Court in D’Orta and there was none in Attwells.
Of course in paragraphs [5] and [6] of Attwells it is crystal clear that the requisite “intimate connection”, to use the older language now understood or explained to be a functional connection as opposed to a merely historical connection is one which is described in paragraph [5] as being a connection:
between the work in question and the manner in which the case is conducted in court.
It is for those reasons, in our submission, that there is no call, as a matter of doctrine or as a matter of this Court’s understanding and application of its own authorities, either for the reopening or if, that your Honours were against me on that, for there to be any change in that understanding of doctrine. May it please the Court.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns until 9.30 am tomorrow.
AT 11.41 PM THE MATTER WAS ADJOURNED
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