Magriplis-Hampton v MM LP Holdings Pty Ltd
[2024] VSC 440
•26 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITIES LIST
S ECI 2022 01896
| Tavis Magriplis‑Hampton | Applicant |
| v | |
| MM LP Holding Pty Ltd (ACN 625 804 695) | Respondent |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 July 2024 |
DATE OF JUDGMENT: | 26 July 2024 |
CASE MAY BE CITED AS: | Magriplis‑Hampton v MM LP Holdings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 440 |
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APPEAL — Appeal from Associate Justice’s decision on summary judgment application — Professional negligence claim against former solicitors — Legal practitioners immunity from liability for negligence — Scope of advocate’s immunity — Whether scope extended to serious injury application brought in County Court — Application decided on the pleaded claim — Stay of proceeding in lieu of order for summary judgment — Adequacy of evidence obtained and called at trial inadequate to meet threshold for common law damages claim —Whether work done out of court intimately connected with work in court — Advocate’s immunity applied to the pleaded claim as alleged negligent acts or omissions of the respondent were intimately connected with the conduct of the serious injury trial — Principle of finality of litigation — Interlocutory or ‘gateway’ characterisation of a serious injury application not determinative of application of advocate’s immunity — No error of law — D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, Kendirjian v Lepore (2017) 259 CLR 275 referred to and applied — Appeal dismissed — Supreme Court Act 1986 (Vic) s 17(3); Supreme Court (General Civil Procedure) Rules2015 r 77.06.2(1).
EXTENSION OF TIME — Adequacy of reason for delay — No prejudice identified by respondent — Serious question raised in the appeal — Exercise of discretion to extend time granted — Supreme Court (General Civil Procedure) Rules2015 r 77.06.2(6).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A. Ingram KC | Verduci Lawyers |
| Mr J. Plunkett | ||
| For the Respondent | Mr A. Strahan KC | Lander & Rogers |
| Mr P. Over |
HER HONOUR:
INTRODUCTION
The applicant in this appeal is the former client of the respondent legal firm.
This appeal is from Associate Justice Daly’s decision in the respondent’s summary judgment application in which she found the basis of the alleged acts or omissions pleaded in the professional negligence claim against the respondent were properly the subject of a complete defence by way of advocate’s immunity. Her Honour was satisfied that the statement of claim, as then pleaded, ought be struck out and the proceeding stayed subject to giving the applicant an opportunity to seek to remove the stay on certain conditions, including the provision of a draft amended statement of claim.
Her Honour found that the applicant’s claim, as currently pleaded, had no reasonable prospect of success by reason of the operation of the principle of advocate’s immunity. Her Honour found that the work done in preparing and calling the loss of earnings evidence, which was the subject of the professional negligence claim, was work which was intimately connected with work done in court. As framed, the claim made would amount to an impermissible attack on the judicial determination of the serious injury application previously heard and determined by the County Court.[1]
[1]The appeal is against the whole of the orders of Associate Justice Daly made 31 March 2023, 1 May 2023, 8 May 2023 and 21 June 2023. The applicant seeks to set aside each of these orders.
BACKGROUND TO PROFESSIONAL NEGLIGENCE CLAIM
The applicant in this appeal, Mr Tavis Magriplis‑Hampton, issued proceedings against the respondent, his former solicitors, MM LP Holding Pty Ltd (‘the firm’), claiming that the firm was negligent in providing him with legal services. Mr Magriplis‑Hampton suffered an injury to his back in the course of his work as an apprentice electrician in 2014.[2] He retained the services of the firm to provide advice in relation to the injury he sustained at work, instructing the firm to take the necessary steps to bring a claim for damages at common law against his former employer.
[2]The applicant was employed by Spendwatt Pty Ltd at the time of the injury.
A worker’s entitlement to common law damages for a personal injury sustained during the course of employment is governed by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the WIRCA’). The WIRCA contains ‘gateways’ through which a prospective plaintiff seeking common law damages must pass. A worker must first apply to the Victorian WorkCover Authority (‘the VWA’) for what is commonly known as a serious injury certificate. A worker may apply for a serious injury certificate for one or both of pain and suffering (general) damages and/or economic loss.
If the VWA refuses the application the worker may make an application to the Court, in practice to the County Court, for a serious injury certificate and for leave to bring a proceeding for damages at common law. An application for a serious injury certificate is usually conducted by way of a short trial, largely by way of affidavit evidence and expert reports. The purpose of the serious injury application is to determine the worker’s eligibility to issue a proceeding seeking common law damages in relation to one or both of the identified categories of loss, with questions of liability (including causation) and quantum of damages to be determined at the trial of any common law action.
The respondent made an application to the VWA for a serious injury certificate for economic loss on behalf of the applicant. Upon rejection by the VWA, the applicant instructed the firm to issue a serious injury application in the County Court seeking a serious injury certificate and to seek leave to issue proceedings for damages for both pain and suffering and economic loss. An application was made on his behalf by the respondent under s 335(2)(d) of the WIRCA for leave to commence proceedings for recovery of damages.
There was no dispute between the applicant and the VWA about the severity of the injury and no opposition to a certificate for general damages. The VWA disputed the applicant’s claim to damages for economic loss. This was because after he ceased working for his employer, the applicant worked for and then purchased a majority shareholding in a business providing property maintenance and repair services. The business is managed by the applicant and it employs a number of specialist tradespeople including electricians to provide services and also engages subcontractors on an as‑needed basis. By reason of his injury, the applicant’s work in the business is limited to an administration and marketing role. As the business generated a reasonable income, there was a question over whether the applicant has suffered, or will suffer, a loss of income sufficient to satisfy the statutory test to be eligible for a serious injury certificate for economic loss.
The trial of this serious injury application was heard by Judge Pillay on 1 June 2021. On 9 June 2021, his Honour granted a serious injury certificate with respect to pain and suffering but dismissed the application for leave to pursue damages for economic loss. The basis of the dismissal of the economic loss claim was that the applicant had not established that his earning capacity was affected by the statutory requirement of 40%.
The applicant says that his failure to obtain a serious injury certificate for economic loss was a direct consequence of the firm’s negligence in failing to provide the VWA and then the County Court with evidence which would have established an impairment to his earning capacity of at least 40%. As a consequence, any common law proceeding brought by the applicant against his employer is confined to the damages for pain and suffering only.
An appeal against the decision of Judge Pillay was heard by the Court of Appeal,[3] and dismissed on 22 February 2022.
[3]Tavis Magriplis‑Hampton v Spendwatt Pty Ltd [2021] VSCA 15 (‘CoA Decision’).
THE PLEADINGS
Following the appeal’s dismissal, the applicant issued a proceeding against the respondent firm on 24 May 2022 for professional negligence.[4] In summary, the pleading filed claims he retained the respondent, a duty was owed to him by that firm in contract and tort, and that it failed to exercise due diligence in obtaining proper instructions and supporting evidence to enable advice to be given and advising the applicant as to any cause of action or common law damages which might be available to him, including the need for the applicant to obtain serious injury certification with respect to both pain and suffering and loss of capacity.
[4]Writ, issued on 24 May 2022 (Proceeding S ECI 2022 01896), exhibited in Court Book (filed 3 July 2024 in S ECI 2022 01896, Supreme Court of Victoria) (‘Court Book’), 100.
He claimed damages as follows:
(a) loss of the prospect of recovering damages and damages by way of interest with respect to loss of earning capacity at an appropriate date of trial from the employer in respect of the injuries; and
(b) loss and damage in filing the Court of Appeal proceeding in an attempt to overturn the decision of the County Court including court fees, counsel fees, costs and disbursements incurred.
In its defence filed on 19 October 2022, the respondent admitted that they commenced acting for the applicant in relation to his entitlements to compensation arising out of the injury he sustained during the course of his employment and that it owed the applicant a duty to exercise reasonable skill and care in carrying out its retainer.
It denied that it was negligent or otherwise acted in breach of duty saying that:
(a) it sought advice from counsel regarding the claim for impairment benefits and entitlement to damages for pain and suffering and loss of earning capacity;
(b) it provided advice to the applicant on multiple occasions regarding his entitlement to damages for pain and suffering and loss of earning capacity;
(c) it considered and obtained expert and lay evidence in support of the claim in the injury application;
(d) the applicant acknowledged the difficulty in obtaining comparable wages;
(e) it sought and obtained the applicant’s instructions on multiple occasions during the course of its retainer; and
(f) the respondent denies had he been negligent that its conduct had caused the applicant loss and damage and, further, that the applicant was aware of the risks and challenges of pursuing the appeal against the decision of Judge Pillay.
Of significance for this appeal, the defence also pleaded that:
Further the Defendant is immune from suit due to the principle of advocate’s immunity, as the allegations against the Defendant relate to work that was either done in court, or work done out of court, which has a functional connection with a judicial determination.
SUMMARY JUDGMENT APPLICATION
By summons dated 6 February 2023, the respondent made an application for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘the CPA’) on the basis that the doctrine of advocate’s immunity applies to the firm’s conduct that underpins the applicant’s claims in the proceeding, and this was a complete answer to the claim. Alternatively, the respondent relied on r 23.01(1) of the Supreme Court (General Civil Procedure) Rules2015 (‘the Rules’) for the proceeding to be stayed on the basis that the claim is an abuse of process, frivolous and/or vexatious.
Her Honour Associate Justice Daly heard the application on 20 March 2023 and on 30 March 2023 published her decision.
Her Honour set out the background relevant chronology of events following the injury suffered by the applicant in June 2014, including the retainer by the applicant of the respondent, the preparation of the VWA application, the receipt of a memorandum of advice from counsel, the VWA offer of a serious injury certificate for pain and suffering damages only on the condition that the plaintiff does not pursue his claim for economic loss, the VWA refusal of the application, the issuing of an originating motion bringing the serious injury application in the County Court, further advice and conferences with Counsel and the applicant, the trial before Judge Pillay and its outcome, the appeal against his Honour’s decision before the Court of Appeal, and the dismissal of that appeal.
I will not repeat in detail these background matters as they are well canvassed in her Honour’s reasons and in the affidavits of Eleanore Madden and James Richardson on behalf of the respondent.[5]
[5]Magriplis‑Hampton v MM LP Holdings Pty Ltd [2023] VSC 150, [1]–[12] (‘Decision of Daly AsJ’); Affidavit of Eleanor Madden (filed 22 December 2022 in S ECI 2022 01896, Supreme Court of Victoria) and Affidavit of James Richardson (affirmed 28 February 2023 in S ECI 2022 01896, Supreme Court of Victoria) which exhibited the materials filed in the serious injury application.
The respondent submitted to her Honour that the applicant’s claim had no real prospect of success by reason of the operation of the principal of advocate’s immunity, on the basis that the applicant’s claim amounts to an impermissible attack on the judicial determination of the serious injury application, and the firm is immune from suit with respect to the acts and omissions complained of by the applicant in his statement of claim.
The submissions made on behalf of the respondent before her Honour relied on the principle affirmed in the decision of the High Court in D’Orta‑Ekenaike v Victorian Legal Aid[6] (‘D’Orta‑Ekenaike’):
At common law an advocate cannot be sued by his or her client for negligence in the conduct of the case in court, or in work out of court which leads to a decision affecting the conduct of a case in court.[7]
[6] D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (‘D’Orta‑Ekenaike’).
[7]Ibid [1].
The respondent submitted that the negligent conduct alleged by the applicant falls within the scope of advocate’s immunity, as the claims in the proceeding are premised on an allegation that the result in this serious injury application would have been different had the plaintiff’s case been properly prepared and presented at trial. It was submitted that the scope of the immunity is not confined to acts or omissions in the course of conducting a trial in court, as observed by the High Court in Giannarelli v Wraith:[8]
Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of Court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity.[9]
[8](1988) 165 CLR 543 (‘Giannarelli’).
[9]Ibid 559–560.
Reference was also made to the decision of the High Court in Attwells v Jackson Lalik Lawyers Pty Ltd[10] (‘Attwells’) which stated that there must be a ‘functional connection’[11] between the advocate’s work and a decision of the court for the defence of advocate’s immunity to be enlivened, holding that the immunity does not extend to the settlement of proceedings that do not involve the determination of the outcome of the proceeding by the exercise of judicial power.
[10](2016) 259 CLR 1 (‘Attwells’).
[11]Ibid [5].
The respondent submitted to her Honour that in the current case the attempt to frame the firm’s conduct as being out of court conduct is ineffective to avoid the application of the immunity. The preparation of evidence before the commencement of the proceeding with the proceeding ultimately judicially determined also falls within the scope of advocate’s immunity, and it is not too remote from the conduct of the proceeding in court. The respondent submitted that the claim brought in this proceeding is analogous to the claim considered in D’Orta‑Ekenaike. The claim in this proceeding concerns the firm’s conduct in preparing and presenting evidence as to loss of earning capacity in a serious injury application including the evidence adduced at trial. The respondent submitted that this conduct is intimately connected with the serious injury application and is thus an impermissible collateral attack on the judicial determination of the application before Judge Pillay.
The respondent submitted before her Honour, in the alternative, if summary judgment were not to be granted, the statement of claim should be struck out.
In response to these submissions to her Honour, the applicant submitted that:
(a) The firm being a firm specialising in personal injury matters would have known or ought to have known the principles governing applications for serious injury certificates for economic loss.
(b) The decision in Bolitho v Banksia Securities Ltd(No 18) (remitter)[12] supported the proposition that solicitors cannot escape liability for lack of diligence on the ground that Counsel has been briefed.
(c) Between 2 September 2020 and the day before trial, concern that the central issue in the serious injury application was the need to prove the economic loss suffered by the applicant in his prospective employment path was raised with the applicant and the need to obtain evidence on the likely earnings of the applicant as a subcontracted electrician was required. A draft affidavit was prepared by the firm in consultation with counsel. On the day before trial, Senior Counsel advised that on the evidence provided, the test under s 325(2)(e) of the WIRCA would not be met. No evidence (including any oral evidence) was adduced during the trial as to the earnings of subcontracted electricians despite the advice from counsel.
[12][2021] VSC 666.
The applicant submitted to her Honour that on the basis of these matters the applicant had a real prospect of success in the proceeding as, had the firm not been negligent in its preparation of the serious injury application, the outcome of the serious injury application would have been different. It was argued that advocate’s immunity is not enlivened in circumstances where the firm was advised by counsel prior to the trial of the evidence necessary to be adduced at trial. The firm’s decision to allow the serious injury application to proceed to trial despite the absence of the evidence necessary to prove the economic loss does not fall within the scope of advocate’s immunity and would not amount to a re‑litigation of the matter as determined at the trial and would not infringe on the principle that, once resolved, controversies in dispute are not to be reopened.[13]
[13]D’Orta‑Ekenaike, n 6, [34].
At the hearing before her Honour in the course of oral submissions, Senior Counsel for the applicant submitted that the authorities relied upon by the respondent were irrelevant to the current application because the focus of the claims in the proceeding was the (pre‑litigation or administrative) VWA application process, not the serious injury application or the trial (i.e. the litigious process). It was argued that the VWA application being made in accordance with the statutorily prescribed non‑curial process, the doctrine of advocate’s immunity affords no defence with respect to the VWA application as opposed to the proceeding brought before the County Court application. Senior Counsel submitted to her Honour that the affidavit provided to the VWA should have contained all of the evidence necessary to make good the claim for a serious injury certificate for economic loss and that affidavit, notwithstanding it was subsequently deployed in the serious injury application, was prepared for a purpose other than litigation, namely the VWA application. The effect being that, if the firm had prepared and produced evidence which would have shown a loss of earning capacity of more than 40%, it was more probable than not that the VWA would have been persuaded to grant the plaintiff a serious injury certificate for economic loss, obviating the need for a serious injury application to be made.
The respondent complained that there was an absence of any pleading of this scenario in the statement of claim.
In the application before her Honour, given the content of the pleadings (not including at that time the claim based on negligence in the preparation of the initial VWA application), she noted that it was not necessary for her to reach any conclusions about the firm’s conduct in order to determine the application because the respondent’s summary judgment application was based on the applicant’s claims in the proceeding being legally untenable, not factually untenable.[14] She stepped through the allegations pleaded, in particular focusing on paragraphs 9 to 14 of the statement of claim. It was the conduct set out, in particular, in paragraph 12 which was said by the applicant to be the cause of the loss of opportunity to recover damages from his employer for loss of earning capacity and the wasted costs associated with the appeal.
[14]Decision of Daly AsJ, n 5, [55]–[64].
ASSOCIATE JUDGES’ REASONS FOR JUDGMENT
Her Honour observed that the transcript of the serious injury trial and the reasons of Judge Pillay show the key issue in this serious injury application was whether the test for the loss of earning capacity in s 325(2)(e)(ii) of the WIRCA was satisfied. Senior Counsel for the applicant before Judge Pillay submitted the annual salaries of the possible jobs considered in the Flexi Personnel report,[15] in comparison to the applicant’s current earnings from the business satisfied the 40% threshold for the reduction of earning capacity. Her Honour also referred to the transcript where discussions between Counsel and his Honour regarding the applicant’s actual earnings compared with possible earnings as a subcontracting electrician. Counsel for the employer made submissions to the effect that the evidence of possible earnings of subcontractors (estimated to be between $70 and $90 per hour) could not be relied upon to calculate the likely annual earnings but for the injury as no evidence was led by the applicant in relation to the work and hours of subcontracted electricians. Judge Pillay ultimately accepted those submissions.[16]
[15]Ibid [19]. This was an expert report dated 18 January 2021 which, among other things, provided details of estimates of wages earned by employed electricians working in different industries and at different levels of seniority.
[16]Ibid [26].
Her Honour noted Judge Pillay referred to the Flexi Personnel report as providing sound credible evidence of the applicant’s likely earnings but for his injury. However, he found that the evidence about the earnings of employed electricians did not establish that the applicant had suffered a loss of earning capacity of 40% or more, and the application for a serious injury certificate for economic loss was rejected.[17]
[17]Ibid [27] referring to Magriplis‑Hampton v Spendwatt [2021] VCC 707, [12].
At [29]–[31], her Honour refers in some detail as to what took place in the days leading up to trial, in particular, in respect of the preparation of the evidence in respect of economic loss which are deposed to in Mr Richardson’s affidavit.
Her Honour considered the only relevance of the extensive (and uncontested) evidence relied upon by the respondent in the summary judgment application before her was to the question of whether the conduct complained of by the applicant is so intimately connected with the conduct of the trial that the firm is immune from suit by reason of the principle of advocate’s immunity. She noted that ‘[i]f there is any real doubt as to whether the impugned contact is intimately connected with the conduct of the trial, the application should for summary judgment must fail’ and that whilst ordinarily the court would be left to grant summary judgment where there are significant factual disputes between the parties, it was not unusual for the question of whether the principle of advocate’s immunity offers a complete defence to legal practitioners being sued by their former clients to be dealt with summarily at an early stage of the proceeding.[18]
[18]Ibid [56].
Her Honour discussed the decision of the High Court in D’Orta‑Ekenaike and quoted the rationale behind the doctrine of advocate’s immunity in the oft quoted passage:
The ‘unique and essential function’ of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be re‑litigated. Yet re‑litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate’s negligence in the conduct of litigation had caused damage to the client.
The question is not, as may be supposed, whether some special status should be accorded to advocates above that presently occupied by members of other professions. Comparisons made with other professions appear sometimes to proceed from an unstated premise that the law of negligence has been applied, or misapplied, too harshly against members of other professions, particularly in relation to factual findings about breach of duty, but that was not a matter argued in this Court and should, in any event, be put to one side. Nor does the question depend upon characterising the role which the advocate (a private practitioner) plays in the administration of justice as the performance of a public or governmental function.
Rather, 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.[19]
[19]D’Orta‑Ekenaike (n 6), [43]–[45].
Her Honour noted that advocate’s immunity does not extend to all conduct of legal practitioners during the course of litigation, referring to the High Court’s decision in Attwells which rejected the invitation to reconsider the decision in D’Orta‑Ekenaike as to advocate’s immunity. However, the High Court held that the scope of advocate’s immunity does not extend to negligent advice which leads to the settlement of a claim in a civil proceeding. The rationale behind this conclusion was that as a proceeding which has resolved by agreement has not been the subject of a judicial determination, the public interest which the doctrine of advocate’s immunity is intended to protect, being the public interest in finality of litigation, is not compromised by actions in negligence brought against legal practitioners with respect to conduct which does not move litigation towards a determination by a court.[20]
[20]Attwells, n 10, [38].
Her Honour referred to the proposition that the rationale underlying the doctrine of advocate’s immunity is to prevent challenges to judicial determinations has been reinforced by the High Court in Kendirjian v Lepore[21] (‘Kendirjian’). The High Court said to attract the immunity ‘an advocate’s work done out of Court must bear upon the court’s determination of the case. There must be a functional connection between the work of the advocate and the determination of the case rather than a mere historical connection.’[22]
[21](2017) 259 CLR 275 (‘Kendirjian’).
[22]Ibid 275.
Her Honour considered that accordingly:
The critical question in the current application is whether the determination of the plaintiff’s claim in this proceeding would require, in effect, a retrial of the serious injury application (and the subsequent appeal) and as such would offend the principle of finality in litigation. If so, the plaintiff’s claims are untenable, and, all other things being equal, should be dismissed’.[23]
[23]Decision of Daly AsJ, n 5, [61].
At [71], her Honour noted that the applicant submitted that the authorities relied upon by the respondent concerning the scope of advocate’s immunity were irrelevant because the applicant’s claims concern an extra curial process, being the VWA application, amounted in her view to a tacit concession that the complaints regarding the inadequacy of the evidence gathering process leading up to and including the trial are barred by the principle of advocate’s immunity. She viewed this as a proper concession given that the weight of authority was overwhelmingly in favour of the conclusion that decisions made and tasks undertaken connected with the preparation and presentation of evidence in court attract the defence of advocate’s immunity. Her Honour went on to conclude at [72]:
There is no doubt in my mind, having regard to the current formulation of the statement of claim, and the evidence relied upon by the firm, including the reasons of Judge Pillay and the Court of Appeal, that the conduct complained of by the plaintiff in the statement of claim was intimately connected with the preparation and presentation of evidence for and at the trial and as such, the firm is immune from suit by reason of advocate’s immunity.
Her Honour said that her conclusion that the conduct of the firm in determining what evidence to prepare for the trial of the serious injury application was work intimately connected with the conduct of the case was illustrated by the evidence of Mr Richardson regarding his communications with Senior and Junior Counsel in the days leading up to the trial of the serious injury application.[24] She made reference to a hypothetical comparison between a claim brought against Senior Counsel for failing to adduce the evidence from the applicant orally or the possibility that the respondent may have a claim against Senior Counsel for contribution and/or indemnity for the failure to reduce that evidence orally. She said that such a claim would be inevitably met by what she considered to be an unimpeachable defence of advocate’s immunity as the conduct complained of would be what Senior Counsel had or had not done on his feet in court.[25]
[24]Ibid [79]–[80].
[25]Ibid [81].
Her Honour observed that it would:
be illogical for the immunity available to counsel in those circumstances not to extend to the conduct of the solicitor concerning substantially the same decision: that is, the decision as to what evidence to adduce or not adduce at trial in support of the plaintiff’s claim for a serious injury certificate for economic loss trial. The authorities make it clear that the advocate’s immunity is referable to the nature of the work carried out, not the timing of the work, or whether the work is carried out by a barrister or solicitor.[26]
[26]Ibid [82] relying on Goddard Elliott (a firm) v Fritsch [2012] VSC 87 [794]–[797].
She further rejected the submission made by the applicant that advocate’s immunity did not apply because at the trial of the serious injury application Judge Pillay did not make a positive factual finding but that he held that he could not make a factual finding because of the absence of any evidence about the plaintiff’s potential earnings as a subcontractor to the business. She rejected this submission and said that Judge Pillay did make a positive finding being that he found that the applicant had not established that he had suffered a loss of earning capacity of 40% or more.
She said that the failure of the applicant’s legal representatives to adduce evidence regarding potential loss of earnings being the proximate, if not sole basis of his Honour not being satisfied, as opposed to the situation where evidence has been adduced but not accepted by the court, was beside the point. A lawyer’s decision not to adduce certain evidence may in many cases carry the same forensic significance as a decision to adduce particular evidence as it was in the serious injury application and is still intimately connected with the conduct of the case in court.
Accordingly, her Honour concluded that based on the current pleading in the statement of claim in particular, the particulars of negligence under paragraph 14 of the statement of claim, the respondent should have summary judgment in its favour. However, she noted the complication raised by the manner in which Senior Counsel’s oral submissions were substantially different to the way in which the statement of claim was framed (and indeed the written submissions filed). The manner in which Senior Counsel submitted the plaintiff’s claim was that it concerns only the firm’s preparation of the VWA application. She reiterated that the summary judgment application was to be determined on the case as pleaded, not on the basis of what counsel said it might be.
She was persuaded to provide an opportunity to replead, taking into account that the applicant is a young man who has suffered by what is in all accounts a serious life changing injury and his failure to obtain a serious injury certificate for economic loss has no doubt significantly reduced the value of any claim he has or may have had against his employer, and that the value of his claim may be substantial. Even if summary judgment were granted, it would be open to him to issue another proceeding against the respondent firm directed at the firm’s conduct of the initial VWA application. His claim would still fall within the limitation period although there may be an argument there should be a stay of any new proceeding based on the principles in Port of Melbourne Authority v Anshun.[27]
[27](1981) 147 CLR 589.
She noted that the firm may wish to press its argument that advocate’s immunity also applied to the preparation of evidence which was ultimately relied upon at a trial even though it was prepared for a different purpose at the time it was prepared. However, it was not immediately obvious how giving the plaintiff an opportunity to at least try and plead a viable claim would cause any prejudice to the respondent which could not be cured by an order for costs. Accordingly, rather than grant summary judgment, she took the alternative course of striking out the statement of claim and staying the proceeding pursuant to r 23.01 of the Rules. She granted the applicant liberty to apply to lift the stay provided the application was made within a reasonable period of time and on the condition a proposed amended statement of claim was provided. Procedural orders were made on 1 May 2023 which also addressed the timing of any application to lift the stay and the defendant’s summons for summary judgment to be heard at the same time. Consequent costs orders were also made.
A draft amended statement of claim was prepared but, rather than omitting the pleadings which were the subject of her Honour’s decision on the pleadings as they then stood, it was the applicant’s intention to retain the substance of that earlier pleading and add the additional circumstances relating to the application to VWA in addition rather than in substitution. It is thus necessary for the applicant to appeal her Honour’s decision in respect of the pleading as it was and her finding that advocate’s immunity applied before consideration of the next step in the proceeding can occur.
It is from this decision the applicant appeals to this court.
EXTENSION OF TIME
An appeal from a decision of an Associate Justice must be made within 14 days pursuant to r 77.06.2(1) of the Rules.
An application for an extension of time must provide a proper explanation for the delay: Phoenix International Group v Rac Investments Pty Ltd.[28]
[28][2014] VSC 502.
Scant explanation was given as to the reason for the delay in bringing the application in the affidavit of Mr Vincent Verduci, but this was further explained by Senior Counsel at the hearing. The explanation given was that the delay had been occasioned by lengthy leave taken by the counsel retained in the matter.
Whilst a cavalier attitude to compliance with time limits is not to be encouraged, the seriousness of the consequences for the applicant by the question raised in the appeal, together with no apparent detriment identified by the respondent, persuades me that I ought exercise my discretion to extend the time to bring the appeal.
CONSIDERATION
An appeal from a decision of an Associate Judge is by way of rehearing which requires the applicant to show error before appellate power is exercised.
The parties’ submissions before Daly AsJ on the application of advocate’s immunity were reiterated before the court in this appeal. I do not propose to repeat them in detail as I have set out the arguments above in the context of reviewing the application before her Honour. The articulation of the law in respect of advocate’s immunity and its application to the circumstances in this case demonstrates no error by Daly AsJ and I agree entirely with her reasoning.
It is clear on the High Court’s articulation of the doctrine of advocate’s immunity in D’Orta‑Ekenaike, Attwells and Kendirjian, that it applies to work done outside court in or directly connected with work done in court. Her Honour carefully considered the pleadings and determined that the allegations made in the statement of claim as then pleaded safely fell within that characterisation. I have formed the same view.
The respective positions taken before Daly AsJ as to the application and extent of advocate’s immunity were in substance reiterated in the appeal before me.
The parties did not dispute that advocate’s immunity operated where work was done in or directly connected with work done in court.
Where they differed was that the applicant argued that the principle of advocate’s immunity did not apply in the circumstances here because a determination of a serious injury application is an interlocutory order and not a final one. Consequently, advocate’s immunity did not apply to determinations concerning whether a plaintiff has a serious injury.
Serious injury application as an ‘interlocutory’ decision
The applicant submitted that the orders made by Daly AsJ, namely that the applicant’s action against the respondent infringed the principle of advocate’s immunity, was fundamentally flawed. It was put that the underlying rationale for advocate’s immunity by reference to applicable High Court authority[29] was directed to finality of litigation addressed to a cause of action. It was submitted that so much is clear from reference to res judicata and issue estoppel in D’Orta‑Ekenaike at [34] and [168].
[29]Including D’Orta‑Ekenaike, n 6; Attwells, n 10; Kendirjian, n 21.
As an application for leave to bring proceedings through a serious injury application has been classified as an interlocutory application, it was submitted it does not attract advocate’s immunity. The decision by Judge Pillay was not a final determination of the rights of the applicant and the respondent but rather was an interlocutory order. That the application pursuant to s 335(2) of the WIRCA Act is a ‘gateway’ application was accepted by Daly AsJ. That such an application is one of interlocutory nature was recognised by the Court of Appeal in an analogous statute[30] in Dodoro v Knighting,[31] which followed from the earlier decision of the Court of Appeal in Swanell v Farmer.[32]
[30]The equivalent provision with respect to leave applications for transport accident injuries is s 93(4)(d) of the Transport Accident Act 1986 (Vic).
[31](2004) 10 VR 277, [16] per Callaway JA.
[32]1999 1 VR 299, [32] per Batt and Buchanan JJA.
Reference was also made to s 336 of the WIRCA Act which provides any finding made on an application for leave to bring proceedings in respect of the injury does not give rise to an issue estoppel in any proceedings for the recovery of subsequent common law damages. This was said to be further support for the proposition that the serious injury application was interlocutory and did not meet the underlying finality of litigation principle.[33]
[33]Reference was also made to VWA v Brassington [2021] VSCA 236, per Beach, Kaye and Osborn JJA who reiterated the reference to s 325 applications being ‘gateway’ provisions and do not involve any relevant determination affecting the assessment of damages which might be assessed in a subsequent common law proceeding.
The respondent argued that the distinction between ‘final’ and ‘interlocutory’ decisions was an erroneous distinction and one which misapprehended the basis of the advocate’s immunity principle. The reference to the serious injury applications jurisdiction in the County Court was not the key characteristic relevant to trigger advocate’s immunity. The authorities which referred to this process classified these actions as ‘interlocutory’ or ‘gateway’ for the purposes of what (at that time) was a live issue, being leave to appeal being required. It was not the categorisation of a judicial decision being interlocutory or final which was the key, but the quelling of a controversy by the exercise of judicial power. This was precisely what the application before Judge Pillay was concerned to do. This was a misconception and misinterpretation of the principle. The policy which underpinned the operation of the immunity was a public policy one directed at finality. It is the exercise of judicial power to quell a question in controversy which is at the heart of advocate’s immunity.
I am of the view that the applicant’s submissions in this regard are misconceived and that the distinction between final and interlocutory decisions is not to be interpreted in the manner urged by the applicant. There are many examples of exercises of judicial power being undertaken in an interlocutory application which in fact have the effect of quelling of a controversy which, subject to the right of appeal, determine a question or ‘quell a controversy’ in the sense intended by the principle of finality. As the High Court clearly stated in D’Orta‑Ekenaike, a central and pervading tenet of the judicial system is that controversies once resolved are not to be reopened except in few, narrowly defined circumstances. Res judicata or issue estoppel were referred to as examples of those few or narrowly defined categories of the finality principle. The High Court did not limit its expression of the doctrine of finality to final orders in respect of a cause of action. Rather, the plurality said that:
Those doctrines prevent a party to a proceeding raising in a new proceeding against a party to the original proceeding a cause of action or issue that was finally decided in the original proceeding.[34]
[34]D’Orta‑Ekenaike, n 6, [34]. My emphasis added.
I disagree that the plurality’s comment directed towards finality in litigation was addressed to a cause of action only. In my view, the proper characterisation of the decision being made which attracts advocate’s immunity is quelling of a controversy by the exercise of judicial power and not one which is to be assessed by reference to the decision being an interlocutory one.
In my view, the application before Judge Pillay, whilst properly characterised as a ‘gateway’ to the right to bring a common law claim, holds all the characteristics of a judicial exercise of power which quells a controversy; the controversy being whether the applicant meets the threshold which entitles a common law claim to be pursued. It does not determine the liability nor the quantum of such claim that is properly to be determined in any subsequent common law proceeding.
The application was issued by originating motion, it proceeded to trial before a judicial officer, evidence was called and tested and a Judge made a determination on the evidence before him in accordance with the legal principles required by the legislation, delivered a decision and court orders were then made. The decision was then unsuccessfully appealed to the Court of Appeal. This sequence and exercise of power is an orthodox exercise of the judicial function to quell a controversy. I rejected the applicant’s submission based on this proposition.
Further, I do not consider the applicant’s reference to s 336 of the WIRCA changes my view on the underlying principle.
‘Intimately connected with work done in court’
Whilst this proposition was not developed by the applicant in the appeal hearing, the respondent addressed the question of whether the work done was intimately connected with the work in court which brought into play the principle of advocate’s immunity.
The respondent submitted that the work done in preparation of the evidence before Judge Pillay was intimately connected with the work in court which brought into play the immunity given:
(a) The application was made by way of originating motion. It proceeded to trial. The evidence was given and the Judge made a judicial determination of an orthodox exercise of judicial power. As such, the circumstances amounted to a textbook quelling of a controversy by exercise of judicial power.
(b) Judge Pillay’s decision was unsuccessfully appealed to the Court of Appeal.[35]
(c) These circumstances amount to precisely the type of circumstances akin to those which were before the High Court in D’Orta‑Ekenaike. In that case there was a preliminary or administrative step — the committal. The plaintiff was advised to plead guilty. At the trial he changed his plea but was convicted. On appeal the decision was reversed. However, he sued his legal advisers for professional negligence. The High Court was clear in its approach to the public policy which underpins the immunity, setting out clearly the principles of finality and public policy which ground the immunity.
(d) Preparation of the case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of Court which leads to a decision affecting the conduct of the case in court.[36]
[35] CoA decision, n 3.
[36]Giannarelli, n 8.
I am also of the view that, as her Honour correctly identified, this close connection between the work done in preparation for the serious injury application trial and the work done in court met this criteria.
As was orally argued before Daly AsJ, the proposition was also put in this appeal by counsel for the applicant that the work done by the firm in the preparation of the material for the application to VWA was of an administrative nature. It was not work of the connection or character to fall within the work done in court classification which would attract advocate’s immunity. However, the parties agreed that this particularisation of the alleged negligence was not an issue for determination in this appeal as it was not the basis of the summary judgment application before her Honour. Her Honour dealt with the issue of advocate’s immunity on the pleadings as they were before her. This issue, if it is to be pursued, is to be determined in the ordinary course in accordance with the usual interlocutory steps and the Rules.
CONCLUSION
It is not whether the outcome of the application made is a decision which is properly classified as interlocutory or final, rather it is the quality and character of the exercise of judicial power in quelling the controversy which is the key.
Her Honour correctly identified that it was a question of whether the work done in preparing the evidence for the serious injury trial was intimately connected with the work in court. I have no hesitation in forming the same view.
The High Court has clearly stated the ambit of advocate’s immunity insofar as it applies to work done which is intimately connected with work done in court. In my view, the preparation of evidence to be called in a judicial proceeding such as the evidence in respect of economic loss required to prove the statutory threshold for a serious injury application in the circumstances as occurred here, falls squarely within the ambit of the immunity.
An application to the County Court by way of originating motion which is determined by a judicial officer in a trial in which evidence is given, judgment delivered and orders made is an exercise of judicial power in which a controversy is quelled.
The submission made on behalf of the applicant that the characterisation of the proceeding before Judge Pillay was not one which attracts advocate’s immunity, either because it is not a final decision or insofar as the submissions suggested that it was some form of administrative review, is unsustainable in logic or at law.
For the reasons set out above, the appeal must fail. The public policy underpinning the principle of advocate’s immunity is one which protects the administration of justice and supports the fundamental principle of finality of a controversy by judicial determination. Whilst the effect on an individual may from time to time be considered as harsh, particularly in circumstance where the execution of the retainer can be fairly seen to be less than professional, that is not to the point.
The High Court has clearly articulated the principle and, in the circumstances here, there is no legal error made by Daly AsJ in her appreciation and application of the principle.
For the reasons set out above, the appropriate order is the appeal be dismissed.
The respondent flagged that it would seek costs. I will provide an opportunity for the parties to provide any submissions on the form of the order, including in respect of costs by 4:00pm on Monday, 5 August 2024.
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