Mallik v McGeown

[2007] NSWSC 1414

CITATION:	Mallik v McGeown [2007] NSWSC 1414
HEARING DATE(S):	15.11.07 (final submissions 26.11.07, 30.11.07)
JUDGMENT DATE :	10 December 2007
JUDGMENT OF:	Nicholas J
DECISION:	(1) That par 4 of the amended reply to the second further amended defence of the third defendant be struck out (2) That the plaintiff pay the third defendant’s costs of the notice of motion
CATCHWORDS:	DEFAMATION - pleading - defamation action by solicitor/advocate - advocate's immunity from suit - whether immunity similar to protection afforded under parliamentary privilege - whether immunity precludes defendant from maintaining, and the court from hearing, defences which question advocate’s in court conduct - parliamentary privilege - advocate's immunity and parliamentary privilege distinguished - principles considered - whether plaintiff’s reply should be struck out under r 14.28
LEGISLATION CITED:	Bill of Rights 1688 (UK) Defamation Act 2005 Imperial Acts Application Act 1969 Uniform Civil Procedure Rules 2005
CASES CITED:	Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 Jamieson v R [1993] HCA 48; (1993) 177 CLR 574 Prebble v Television New Zealand Ltd (1995) 1 AC 321 Rann v Olsen [2000] SASC 83; (2000) 172 ALR 395 Royal Aquarium and Summer and Winter Gardens Society Ltd v Parkinson (1892) 1 QB 431 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
PARTIES:	Robin Mallik (plaintiff) Russell Hawkins (third defendant)
FILE NUMBER(S):	SC 20254/06
COUNSEL:	M J Neil QC/D Caspersonn (plaintiff) R R Stitt QC/D V Robinson (third defendant)
SOLICITORS:	Harris Wheeler (plaintiff) Phillip Watson (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

10 December 2007

20254/06 Mallik v McGeown

JUDGMENT

1 His Honour: By notice of motion filed 15 November 2007 the third defendant seeks an order that par 4 of the amended reply to the second further amended defence of the third defendant be struck out under Uniform Civil Procedure Rules, Pt 14, r 14.28. Paragraph 4 is in the following terms:

“4. The Plaintiff further says that to the extent that the Second Further Amended Defence relies on statements or action by the Plaintiff in or intimately connected with court proceedings the said defences are not maintainable as a matter of law.”

Background

2 Although the pleaded issues were referred to in my judgment of 15 May 2007, it is convenient to set out matters relevant to the present question.

3 The plaintiff sues the defendants for the publication on about 20 June 2006 in the newspaper the “Cessnock Independent”, as a letter to the editor, of the matter in schedule B to the second further amended statement of claim, which is in the following terms:

“Dear Bill,
With regard to a certain Solicitor suing you for defamation over a letter to the Editor which appeared in the last edition of the Kurri paper have you pointed out to him that if it’s the truth you printed even though its painful, is not defamation?
I have had a cause to complain to the Law Society about that Solicitor and am in the process of complaining again that he lied to a Magistrate.
If your readers following the case Council ran against me over a little black dog, I’m sure they would all agree with the sentiments of the letter that appeared in your Kurri paper.
Keep on reporting the facts.
Regards,
R J HAWKINS”

4 He also sues the first, second and third defendants for the publication on about 27 June 2006 in the “Kurri Kurri and Western Independent”, as a letter to the editor, of the matter in schedule C, which is in similar terms to schedule B.

5 The plaintiff claims that the letters convey the following imputations:

"(a) The plaintiff had lied to a magistrate once.
(b) The plaintiff had lied to a magistrate again.
(d) The conduct of the plaintiff as a solicitor was such as to warrant a complaint to the Law Society that he lied to a magistrate once.
(e) The conduct of the plaintiff as a solicitor was such as to warrant a complaint to the Law Society that he lied to a magistrate again.”

6 The particulars of identification pleaded by the plaintiff include the following:

“(c) The Third Defendant had been involved in a court case involving a dog and the Plaintiff, as a solicitor, was involved in that court case and there had been substantial publicity about this.”

7 Particulars pursuant to r 15.8 relevant to damages assert:

“(a) The falsity of the imputations.
(b) The Defendants failed to make any or any proper enquires as to the truth of the second matter complain of.
(c) Unfair and extravagant manner of publication as evidenced by the use of strong and emotive words in the second matter complained of.
(d) The failure by the Defendants to apologise and/or withdraw any of their allegations.”

8 Pursuant to s 25 Defamation Act 2005 (the Act) the third defendant has pleaded in par 10 of the defence that each of the imputations is a matter of substantial truth. The particulars pleaded are relied upon in respect of each imputation. These allege that:

“The Plaintiff, whilst acting as solicitor/advocate on behalf of the Cessnock City Council in prosecuting Jill Crossley in the Local Court on the charges, …”

made false statements to the magistrate, namely:

“(a) … that no evidence or any other document had been forthcoming from the Third Defendant in which he, the Third Defendant, admitted he was the owner of the dog nothing from him which could be used as evidence against him and no evidence upon which a prosecution could have been made against the Third Defendant …”;
“(b) … that he had issued a subpoena to the persons trading as Cessnock Veterinary Centre and Hospital to produce documents relating to any dog owned by the Third Defendant before the six month period had elapsed on 1 September 2004 but that the subpoena was not made returnable within that time …”;
“(c) … that he had asked the Clerk of the Court whether there was a statutory declaration from the Third Defendant as to his ownership of the relevant dog and that he, the Plaintiff, had been advised by the said Clerk that there was no such statutory declaration …”;
“(d) … that Jill Crossley and the Third Defendant acted together in a criminal conspiracy to pervert the course of justice by falsely swearing that the Third Defendant was the owner of the dog, the subject of the prosecution, …”;
(e) … that Jill Crossley and the Third Defendant acted together in a criminal conspiracy to pervert the course of justice by falsely swearing that the Third Defendant was the owner of the dog the subject of the prosecution and that the Third Defendant concealed that fact from the Court and only revealed it after the sixth month limitation period in which to commence the prosecution had elapsed …”

In respect of each such statement particulars of falsity were given.

9 The third defendant relies also on a defence of honest opinion under s 31(1) of the Act (par 9). Particulars of matters of public interest include the conduct and duty of the plaintiff as a solicitor/advocate acting on behalf of the Cessnock City Council in prosecuting citizens and/or ratepayers in the Local Court and in the relevant litigation.

10 He also relies on defences of qualified privilege at common law, and statutory qualified privilege under s 30 of the Act (par 9A). Particulars of the information in which it is asserted that the recipients of the matters complained of had an interest were stated to be information about the plaintiff’s conduct in prosecuting Miss Crossley on behalf of the Council on the charges, and which related to his conduct as solicitor/advocate for the Council in the prosecution, and which related to the fact that in the course of the prosecution the plaintiff had made statements to the presiding Magistrate which were false.

11 The third defendant also pleads defences of comment (par 14), and of qualified privilege at common law in respect of publication in reply to an attack (par 15). These defences also directly raise issues about things said and done by the plaintiff in the course of the proceedings in the Local Court.

12 For the purpose of the present application the third defendant conceded the following facts:

1. The Plaintiff, as solicitor/advocate prosecuted on behalf of the Cessnock City Council, Jill Gay Crossley on charges namely:
(i) dog not under effective control;
(ii) animal not permanently identified.
2. The Plaintiff appeared at the Kurri Kurri Local Court on 13th August, 2004, 12th October, 2004, 4th February, 2005 and 18th February, 2005 before Magistrate Crews in respect of the said prosecution.
3. On 4th February, 2005 the Third Defendant gave evidence as a witness in the said proceedings.

13 It is apparent, therefore, that the cases of each of the plaintiff and the third defendant plead matters which put in issue the in-court conduct of the plaintiff as a solicitor/advocate in the proceedings before the Local Court (the local court proceedings). The plaintiff’s assertion in par 4 of the amended reply that the defences, to the extent that they rely upon such in-court conduct, are not maintainable as a matter of law has provoked the challenge. As a result the third defendant contends that par 4 should be struck out under r 14.28(1) as an abuse of process in that its purpose is to preclude any substantial defence to the action, alternatively on the ground that it raises an issue which is manifestly untenable and inappropriate to plead in reply.

14 The plaintiff sought to defend its pleading on the basis that the advocate’s immunity from suit in respect of things said or done in the course of court proceedings extends to prevent a defendant who is sued by the advocate from raising defences to his claim which involve an attack upon his in court conduct. Central to the submissions in support of the plaintiff’s case was the proposition that the advocate’s immunity operates to the same effect as the parliamentary privilege, which precludes the questioning in court proceedings of anything said or done in Parliament.

15 The question raised in this application requires consideration of principles relevant to parliamentary privilege and the advocate’s immunity. A non-exhaustive summary of these principles follows.

Parliamentary privilege

16 Article 9 of the Bill of Rights 1688 (UK) declares:

“That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court of place out of Parliament.”

17 It is in force in New South Wales (Imperial Acts ApplicationAct 1969, s 6). It confirms the common law principle that common law courts will not examine what is said or done within the walls of a parliamentary chamber (Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, per McHugh J pp 461-462). It is a privilege of the Parliament, an important reason for which is that a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences (Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, per Gibbs ACJ p 35).

18 The application of these principles was considered in Prebble v Television New Zealand Ltd (1995) 1 AC 321 in which the plaintiff, a former minister in the New Zealand Parliament, sued in respect of an allegedly libellous television programme concerning his conduct in office. In its defence, the defendant claimed some of the meanings were true. Particulars of justification included reliance on things said and acts done in Parliament by the plaintiff and other ministers. The principle question was whether Art 9 precluded such deployment of the Parliamentary material as a shield against the plaintiff’s claim. It was held, inter alia, that as the defendant intended to rely upon the Parliamentary materials and thereby to question such statements and acts contrary to Art 9, the relevant pleadings and particulars had been rightly struck out.

19 Their Lordships said (p 332):

In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which ariticle 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1, 104 ER 501, Stockdale v Hansard (1839) 9 Ad & El 1, 112 ER 1112, Bradlaugh v Gossett (1884) 12 QBD 271, British Railways Board v Pickin [1974] 1 All ER 609, [1974] AC 765, Pepper v Hart [1993] 1 All ER 42, [1993] AC 593. As Blackstone said (1 Bl Com (17th edn) 163):

'The whole of the law and custom of Parliament has its original from this one maxim, “that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere”.'

According to conventional wisdom, the combined operation of article 9 and that wider principle would undoubtedly prohibit any suggestion in the present action (whether by way of direct evidence, cross-examination or submission) that statements were made in the House which were lies or motivated by a desire to mislead.”

and (p 334):

“…the basic concept underlying article 9, viz the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.
Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.”

and (p 335):

“… (their Lordships) cannot accept that the fact that the maker of the statement is the initiator of the court proceedings can affect the question whether article 9 is infringed. The privilege protected by article 9 is the privilege of Parliament itself. The actions of any individual member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply. The wider principle encapsulated in Blackstone's words quoted above prevents the courts from adjudicating on issues arising in or concerning the House, viz whether or not a member has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters.

and (p 337):

“… their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception …”

20 At common law parliamentary privilege is absolute, and protects a member from legal action for things said or done in the course of parliamentary proceedings. In New South Wales the privilege is confirmed by s 27 of the Act which, relevantly, provides:

"27 Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:
(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to):
(i) the publication of a document by order, or under the authority, of the body, and
(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and
(iii) the publication of matter while giving evidence before the body, and
(iv) the publication of matter while presenting or submitting a document to the body, or …”

Advocate’s immunity

21 There is a general principle that no civil or criminal action lies in respect of statements made in the course of, or with respect to, judicial proceedings. The immunity was stated by Lopes J in Royal Aquarium and Summer and Winter Gardens Society Ltd v Parkinson (1892) 1 QB 431, p 451:

“The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. This "absolute privilege" has been conceded on the grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist …”

22 The immunity is not confined to advocates. It extends to other participants in litigation. In Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, Mason CJ said (pp 557-558):

“… the exception in favour of counsel is in conformity with the privilege which the law has always conferred in the interests of public policy on those engaged in the administration of justice, whether as judge, juror, witness, party counsel or solicitor, in respect of what they say in court: Cabassi v Vila (31); Munster v Lamb (32).

The foundation for that principle is the perception that great mischief would result if those engaged in the administration of justice were not at liberty to speak freely. The immunity is not confined to actions for defamation. As McTiernan J noted in Cabassi (at 144) with reference to the rule in its application to witnesses: “It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.”

23 In Giannarelli Wilson J (p 576) expressed the view that it was the imposition of liability for in court negligence which raised a real risk of grave damage to the administration of justice and which would be prevented by recognising an immunity from suit. Brennan J (p 579) emphasised the importance of freedom from the chilling threat of civil suit by the parties to the litigation. Similarly, Dawson J (p 596) referred to the need for protection against actions, whether for damages for defamation or for negligence, which are ill founded as much as against those which are soundly based.

24 In D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, McHugh J pointed out (par 99) that the cases show that neither a judge nor a witness nor counsel can be sued even for false and defamatory statements made maliciously in the course of judicial proceedings. He explained that this immunity rests in part (par 192):

“…on the necessity that those who participate in the administration of justice should not be hampered in the discharge of their duties by fear of litigation concerning what they say and do. The administration of justice demands fearless and independent advocates who are not hampered in the discharge of their role by the need to consider whether their conduct might be actionable. The advocates’ immunity from a suit for defamation in part rests on this basis.”

25 However, the central justification for the immunity of advocates and other participants in litigation is the principle that controversies once resolved are not to be reopened except in a few narrowly defined circumstances (D’Orta-Ekenaike pars 45, 84, 190; Giannarelli).

26 The privilege or immunity against civil liability is granted, not for the benefit of judges, advocates, parties, or witnesses but in the interests of the administration of justice (Giannarelli per Mason CJ p 557, Wilson J p 576; Cabassiv Vila [1940] HCA 41; (1940) 64 CLR 130, per Starke J p 140).

27 The scope of the immunity so far as criminal prosecutions are concerned was considered in Jamieson v R [1993] HCA 48; (1993) 177 CLR 574 in which it was held that there is, prima facie, a similar immunity against criminal prosecutions in respect of words used by a person, including a party, in the ordinary course of judicial proceedings. Deane, Dawson JJ said (p 582):

“The general proposition, enunciated by Lord Mansfield in R. v. Skinner ((7) (1772) Lofft 54, at p 56 (98 ER 529, at p 530).), that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office", must be qualified by a number of well-established exceptions. In particular, in so far as criminal proceedings are concerned, it must be qualified as regards substantive administration of justice offences (such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice) and offences associated therewith (such as conspiracy and attempt). Nonetheless … the proposition as so qualified remains valid as a general statement of common law principle.”

28 Innumerable cases demonstrate that the rule does not preclude, in appropriate circumstances, examination by a court of things done and said by an advocate in the course of proceedings in court. In D’Orta-Ekenaike McHugh J (pars 196-200) examined many cases in which the competence of counsel was under scrutiny in claims that deficient representation provided the basis for an appeal. He pointed out (par 197) that the matters are overwhelmingly of a criminal character and almost always dismissed. Nevertheless, when claims involving a challenge to counsel’s conduct of a case are made the courts are obliged to determine whether they have any substance.

29 It is well established, of course, that the in court conduct of an advocate is liable to be called into question by professional disciplinary bodies, including the courts. By way of example, it is sufficient to refer only to Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 in which it was held that the appellant’s conduct in proceedings before a magistrate justified an order that his name be struck off the roll of barristers.

30 In New South Wales the common law rule that there is an absolute privilege against an action for defamation is confirmed by s 27 of the Act which, relevantly, provides:

“27 Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:
…
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
(ii) the publication of matter while giving evidence before the court or tribunal, and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or“

31 The conclusions which I draw from the cases on immunity relevant to the question in this application are:

(1) Advocates, and other participants in court proceedings, have an immunity from suit arising out of in court conduct. The immunity provides a defence against a claim for defamation or negligence arising out what was done or said in the course of proceedings. It is a shield or protection against the imposition of liability for in court conduct.

(2) In appropriate circumstances, things done or said by an advocate in the course of court proceedings may be scrutinised by, or called into question before, a court.

Determination

32 Initially, the plaintiff submitted that, in attempting to prove the truth of the imputations, the third defendant proposes to analyse and re-litigate the local court proceedings in such a way as to amount to a collateral attack upon the court’s decision in those proceedings. Reference was made to the particulars of truth which indicate that many matters which had been in issue in those proceedings will be ventilated in these. Such matters include statements made by the plaintiff in the course of the local court proceedings, and the evidence relevant to the truth or falsity of those statements.

33 As I understood it, the plaintiff submitted that to permit the defences to be maintained would be contrary to the principle of finality which was central to the rationale for the immunity upheld in Giannarelli and D’Orta-Ekenaike.

34 In his further supplementary submissions the plaintiff submitted that the immunity precludes the third defendant from leading evidence, examining or cross-examining witnesses, or making submissions on what was said or done by the plaintiff as an advocate in the course of the local court proceedings. It was put that the immunity extends to prevent the defendant by any of these means seeking to establish the truth of matters concerning the plaintiff’s in court conduct. It was put that another way of expressing the principle for which he contended is that the words and conduct of the advocate whilst acting as advocate may not be the subject of evidence or be called into question in court proceedings.

35 In support, the plaintiff referred to Prebble and Rann v Olsen [2000] SASC 83; (2000) 172 ALR 395 in which it was held that a party to litigation (relevantly, the defendant to the plaintiff’s defamation action) could not bring into question anything said or done in Parliament contrary to parliamentary privilege. It was argued that these cases recognised that a plaintiff could rely upon the immunity from suit in respect of conduct in Parliament to prevent a defendant questioning that conduct in court proceedings in defence to a defamation action. It was argued that, as the policy considerations which establish parliamentary privilege are similar to those which establish the immunity of advocates, the scope of the immunity should be the same. It follows, so it was put, that the third defendant should not be permitted to question the plaintiff’s conduct in the local court proceedings in the course of defending the plaintiff’s defamation action in these proceedings.

36 In my opinion the plaintiff’s case is misconceived, and his submissions must be rejected. In my opinion the issue raised under par 4 of the reply is manifestly unarguable and should be struck out under r 14.28(1)(a) and (b) on grounds that it discloses no reasonable case in reply to the defences, and has a tendency to cause embarrassment and delay in the proceedings. (General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, pp 128-120.)

37 In my opinion, the decisions concerning the application of parliamentary privilege in cases such as Prebble and Rann provide no support whatever for the plaintiff’s proposition. For example, in Prebble it was decided (pp 335, 337) that the principles of parliamentary privilege, including Art 9 of the Bill of Rights, prevented the court from adjudicating on issues raised by the defendant which questioned the plaintiff’s conduct in Parliament. According to the principles earlier referred to, subject to statutory exception, courts will not examine what is said or done in the House. There are no principles or laws to like effect which apply to preclude a court from adjudicating upon issues which question an advocate’s conduct in court.

38 That it is a matter of public policy that members of Parliament should be able to speak in Parliament freely and without fear of the consequences, and that advocates should also be at liberty to speak freely in the course of court proceedings, does not establish a principle that the advocate has a protection against the questioning before a court of what he said or did in the course of proceedings which is similar to the protection of a member of Parliament with respect to what he said or did in the House. After consideration of the principles as to the content and application of parliamentary privilege, I fail to see how they assist the plaintiff’s argument.

39 Further, in my opinion, to permit the defences to proceed would not be contrary to the principle of finality applied in Giannarelli and D’Orta-Ekenaike. This is because the ventilation of the matters involving the plaintiff’s conduct in the local court proceedings will not amount to the re-litigation in collateral proceedings of issues determined in the local court proceedings. It is to be remembered that in those cases the court was concerned to guard against the prospect of the final result of the earlier litigation being impugned if a client should have an action against a negligent advocate whose negligence caused loss to the client (D’Orta-Ekenaike pars 71-73).

40 In the present case the litigation is between parties who were not parties to the local court proceedings, and is concerned with issues raised by the publication of the imputations and the defences to such publication. Its conduct and outcome will not jeopardise the final result of the local court proceedings. There will be no inconsistency between the decision in the local court proceedings and the decision in these. Accordingly, it cannot be said that the hearing and determination of the defences to which objection is taken would infringe the principle of finality.

41 Furthermore, I find no principled basis upon which the common law protection of an advocate against defamation and other claims which is afforded by immunity from suit and absolute privilege should be extended to serve some purpose other than that of a shield. As pointed out in Giannarelli, it was the concern to prevent the fear of, or threat from, the imposition of liability for in court conduct which was a significant consideration in upholding the immunity. It was held that the purpose of the protection is to protect the advocate against claims or threats of claims the fear of which might constrain his freedom of conduct in court.

42 In my opinion the cases make plain that the immunity is available only as a defence to an action based upon a defendant’s in court conduct. Accordingly, the immunity cannot be called in aid by the plaintiff in these proceedings to prevent the third defendant maintaining defences which question his conduct in the local court proceedings. In my opinion, the existence of the immunity which the plaintiff has in respect of his conduct in the local court proceedings is simply irrelevant to the entitlement of the third defendant to have his defences heard and determined, and, in particular, to any of the questions raised under the defences, and to any questions which may properly be raised by the plaintiff in reply. In other words, in my opinion, such immunity as the plaintiff has against action for his conduct in the local court proceedings, cannot operate to deny the court jurisdiction to decide the issues raised in these proceedings.

Conclusion

43 I make the following orders:

(1) That par 4 of the amended reply to the second further amended defence of the third defendant be struck out.

(2) That the plaintiff pay the third defendant’s costs of the notice of motion.

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