Reader Lawyers and MEDIATORS v ABC (a pseudonym) - [2020] WADC 14

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   READER LAWYERS & MEDIATORS -v- ABC (a pseudonym) [2020] WADC 14
CORAM:   VERNON DCJ
HEARD:   15 MAY 2019
DELIVERED          :   5 FEBRUARY 2020
FILE NO/S:   CIV 336 of 2017
BETWEEN:   READER LAWYERS & MEDIATORS
Applicant (Defendant)
AND
ABC (a pseudonym)
Respondent (Plaintiff)

Catchwords:

Summary judgment - Application to strike out pleadings - Failure to disclose a cause of action - Abuse of process - Advocate's immunity - Interlocutory parenting orders - Family Court trial

Legislation:

Family Court Act 1997 (WA), s 70B, s 211(3)
Family Law Act 1975 (Cth), s 61DB, s 94
Rules of the Supreme Court 1971 (WA), O 20 r 19, O 16 r 1

Result:

Application granted
Substituted statement of claim struck out and action dismissed

Representation:

Counsel:

Applicant (Defendant)	:	Mr S F Popperwell
Respondent (Plaintiff)	:	Mr G J Pynt

Solicitors:

Applicant (Defendant)	:	Popperwell & Co
Respondent (Plaintiff)	:	Not applicable

Case(s) referred to in decision(s):

Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1
Bride & Bride v Peat Marwick Mitchell [1989] WAR 383
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297
Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355
Corp v Robinson [2012] WASC 490
David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Giannarelli v Wraith (1988) 165 CLR 543
Goddard Elliott v Fritsch [2012] VSC 87
Kendirjian v Lepore [2017] HCA 13
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414; 25 August 1986)
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
McKechnie v Campbell (1996) 17 WAR 62
Re Luck (2003) 203 ALJ 1; [2003] HCA 70
Rogers v Roche [2016] QCA 340; [2017] 2 Qd R 306
Rogers v The Queen (1994) 181 CLR 251
Sims v Chong [2015] FCAFC 80

VERNON DCJ:

Introduction

By an application dated 30 January 2019, the defendant applied to strike out the plaintiff's substituted statement of claim dated 24 January 2019 as disclosing no reasonable cause of action or as an abuse of process, pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC). Alternatively, the defendant sought leave to apply for judgment, or a permanent stay of proceedings, pursuant to O 16 r 1 RSC and the court's inherent jurisdiction.
In summary, the defendant submits that advocate's immunity applies to defeat the plaintiff's claim in negligence, even if proved, and that the action is an abuse of process, because it seeks to impugn orders of the Family Court. The plaintiff says that it is arguable that the defence of advocate's immunity does not apply in circumstances where the orders made by the Family Court were interim or interlocutory orders, and not final orders, and that the proceedings are not an abuse of process because the plaintiff does not seek to mount a collateral attack on the orders.
The application to strike out the statement of claim was filed within the time allowed by order of Deputy Registrar Harman made on 5 December 2018 and no issue arises that the defendant requires an extension of time.
An order was made on 28 January 2020, with the consent of the parties, to suppress publication of the plaintiff's name and to substitute the letters 'ABC' for the plaintiff's name in the title of these proceedings. This order was made in order to protect the identity of the plaintiff's child and the child's father in light of the prohibition on publication of any information that might lead to the identification of parties to proceedings in the Family Court, or people related to parties to those proceedings.

Legal principles on interlocutory applications

Strike-out application

The principles to be applied when determining an application to strike out a statement of claim on the ground that there is no reasonable cause of action are that:[1]
(a)All the facts alleged in the statement of claim must be accepted as true, and it must be taken for granted that the pleading is unassailable on all other points. No evidence is admissible, but the court may refer to documents mentioned in the pleading;[2]
(b)Great care must be exercised to ensure that the plaintiff is not improperly deprived of the opportunity to have a trial of his or her case in the appointed tribunal;
(c)The rules are not reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed;
(d)As a general rule a plaintiff is entitled, as of right, to have his or her case heard, to have the facts found and then to argue the question of law as they arise on the facts as found. It is only in cases in which it can be seen from the outset that there is no basis for the legal conclusion contended for by the plaintiff, however the facts are found, that the pleading should be struck out; and
(e)A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie.
[1] Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414; 25 August 1986) (Stables M).
[2] Day v William Hill (Park Lane) Ltd [1949] 1 KB 632, 639.
If the facts pleaded conceivably give a right to relief, then the cause of action should be held to be reasonable.[3]

Summary judgment under RSC O 16 r 1

[3] David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73 [14] (Allanson J).

Pursuant to O 16 r 1(1) of the RSC the court may order summary judgment be entered for the defendant if the court is satisfied that the action is frivolous or vexatious or that the defendant has a good defence on the merits.
The onus is on the defendant to show that there is no serious question to be tried on any cause of action raised by the plaintiff.[4]
[4] Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 [42].
The power to exercise summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[5]
[5] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
Where an application for summary judgment is combined with an application under the court's inherent jurisdiction and with an application under RSC O 20 r 19(1) the court is not confined by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider the undisputed facts as well as the facts that are in dispute.[6]
[6] Bride & Bride v Peat Marwick Mitchell [1989] WAR 383, 394.

The plaintiff's pleaded case

In summary the statement of claim pleads that:
(a)The plaintiff's child lived with the plaintiff. The father of the plaintiff's child applied to the Family Court of Western Australia seeking a change in parenting orders (the Proceedings): par 10 and par 25;
(b)The plaintiff retained the defendant law firm to act for her in the Proceedings: par 13 and par 14;
(c)The defendant owed the plaintiff a duty to act with reasonable care, skill and diligence in advising her and representing her in the Proceedings until they ceased acting for her: par 15;
(d)The plaintiff held certain concerns: par 8;
(e)As a result of the plaintiff's concerns, the plaintiff took certain actions in relation to the child, including photographing the child, and questioning the child: par 9;
(f)A trial of the Proceedings took place in two parts, with the first part taking place over nine days in November 2014, and the second part taking place over 13 days between December 2015 and February 2016: par 19;
(h)At the hearing of the first part of the trial the defendant acted for the plaintiff and a barrister appeared for the plaintiff on the defendant's instructions: par 20(a) and par 20(b);
(h)Prior to the trial, in a report to the Family Court, a court appointed psychologist expressed concern that the plaintiff's actions in relation to the child were likely to harm the child: par 17;
(i)The day before the trial commenced an expert appointed by the plaintiff provided a report in which the expert expressed an opinion which provided some evidence that the plaintiff's concerns were reasonably held. The defendant disclosed this report on about the first day of trial but did not tender, or seek to tender, that report into evidence in the first part of the trial, or arrange for the expert to be available for cross‑examination at trial: par 18, par 30 and par 31;
(j)Before the trial commenced the plaintiff, on the advice of the defendant and the barrister, decided not to attempt to prove the plaintiff's concerns were true, but to attempt to prove that the plaintiff honestly and reasonably held those concerns, with a view to persuading the court that it was in the child's best interests that the child continue to live with the plaintiff: par 24;
(k)On the last day of the first part of the trial the trial judge made interim orders, with effect until the resumption of the trial, under which the child continued to live with the plaintiff and the plaintiff and the father share equal parental responsibility for the child save that the father had sole parental responsibility for management of the child's medical needs: par 33;
(l)The defendant and the barrister ceased acting for the plaintiff in about January 2015, and another legal firm commenced acting in about July 2015: par 21 and par 22;
(m)On 19 July 2016, after the second part of the trial, the trial judge handed down written reasons for decision in which the trial judge said that the interim orders had been made to allow the father to address what was considered to be an avoidant attachment with the child and to allow the plaintiff to deal with her severe anxiety and what was considered to be an disorganised attachment to the child. The trial judge also made findings the plaintiff did not accept that her actions in photographing the child were likely to harm the child's wellbeing, that these actions called into question the plaintiff's capacity to parent the child, and that the father's parenting of the child caused less harm to the child: par 34, 35 and 36; and
(n)On 19 July 2016 the trial judge made:
(i)final orders providing, in particular, that:
Athe child live with the father;
Bthe child be with the plaintiff four nights a fortnight, subject to compliance with other orders and injunctions; and
Cthe father have sole parental responsibility for the child; and
(ii)interim orders:
Aconcerning the child's living arrangements, communications between the parties, requirements, or restraints, of the parties in relation to taking certain steps, and the plaintiff's attendance on a psychiatrist and a psychologist; and
Bproviding that, in 12 months, the court appointed expert undertake a review of the parties and the child and provide recommendations to the court as to whether it would be in the best interests of the child to further progress the time the child spent with the plaintiff: par 37.
The gravamen of the plaintiff's allegations of negligence against the defendant appear in par 29, par 31, par 32, par 38, par 39 and par 40 of the substituted statement of claim, which plead, in summary, that:
(a)In breach of the duty of care the defendant owed the plaintiff, the defendant failed to:
(i)ensure that the trial judge and the father's lawyers knew from the outset of the trial that the plaintiff had no intention of trying to prove her concerns were true, but that she held the concerns honestly and reasonably;
(ii)ensure the expert's report was tendered into evidence during the first part of the trial in support of the plaintiff's claim that she held the concerns honestly and reasonably; and
(iii)obtain expert psychiatric evidence as to whether, and if so the extent to which, the plaintiff's actions might be harming or might have harmed the child emotionally or psychologically.
(b)Had the defendant taken those steps there was a real chance that instead of the trial judge making the interim orders at the end of the first part of the trial in November 2014 the trial judge would have made a final order at that time that the child live with the plaintiff. The particulars identify as the basis of this plea that:
(i)the trial judge may have formed a view at the end of the first part of the trial that her Honour did not require the second part of the trial to decide whether the plaintiff's concerns were true, for the purpose of deciding what parenting orders should be made, which, in turn, would have enabled the trial judge to make a final order at the end of the first part of the trial about who the child would live with;
(ii)if the expert's report was tendered into evidence and the expert was available to be cross examined, his evidence might have led the trial judge to conclude at the end of the first part of the trial that historically the plaintiff held her concerns honestly and reasonably and reacted responsibly to those concerns in her actions in relation to the child, which might have led the trial judge to make a final order at the end of the first part of the trial that the child continue to live with the plaintiff; and
(iii)alternatively, if the defendant had engaged a psychiatrist, there may have been evidence, which the trial judge may have accepted that, if harm was caused to the child by the plaintiff's actions, that harm was minimal, which might have led the trial judge to conclude at the end of the first part of the trial that her Honour should make a final order that the child continue to live with the plaintiff; and
(c)If at the end of the first part of the trial the trial judge had made a final order that the child continue living with the plaintiff, the second part of the trial might either have been avoided or, if it had gone ahead, the father might not have been able to satisfy the trial judge that there was such a change of circumstances since the final order was made that it should be varied so the child could live with the father.
The plaintiff pleads in par 41 of the statement of claim that as a result of the defendant's breach of the duty of care:
(a)The trial judge made interim orders at the end of the first part of the trial instead of a final order that the child continue living with the plaintiff;
(b)The plaintiff unnecessarily incurred legal costs associated with the first and second part of the trial, and will continue to do so 'until such time as final orders are made in relation to the matters the subject of orders described in [33a) and b)] herein', which is a reference to the interim orders made in November 2014 that the child live with the plaintiff; and
(c)The plaintiff has lost the opportunity to claim child support payments, including government assistance payments to assist with the ongoing care of the child after the making of the orders following the second part of the trial.

Summary of the parties' submissions

The defendant says that the allegations of negligence are subject to advocate's immunity because they concern conduct in the Family Court in the course of the Proceedings, or, alternatively, out‑of‑court conduct which is intimately connected with the conduct of the case in court.[7] As such the defendant submits there is a complete defence to the plaintiff's action.[8] The defendant submits on the same basis that the plaintiff's challenge to the orders made in the Family Court is an abuse of process, as bringing the administration of justice into disrepute.[9]
[7] Defendant's submissions at par 14 and par 15.
[8] Giannarelli v Wraith (1988) 165 CLR 543, 559 – 560 (Mason CJ).
[9] Defendant's submissions at par 18.
The plaintiff accepts that, at common law, an advocate cannot be sued for negligence for work done in court or work done out of court which is so intimately connected with the conduct of the cause in court that it can be fairly said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.[10] The plaintiff also accepts that the allegations of negligence concern work done in court or work done out‑of‑court which are intimately connected with the conduct of the cause in court.[11]
[10] Plaintiff's submissions at par 12.
[11] Plaintiff's submissions at par 14.
The plaintiff submits, however, that it is at least arguable that the defence of advocate's immunity is not available to the defendant because:
(a)the orders made in the Proceedings, both after the first part and the second part of the trial, were interim or interlocutory, rather than final, orders;
(b)advocate's immunity only extends to final orders and not to interim or interlocutory orders; and
(c)the plaintiff is not seeking to mount a collateral attack on the trial judge's orders.[12]
[12] Transcript of oral submissions ts 43 and ts 44.
In support of the proposition that it is at least arguable that advocate's immunity does not apply to the orders made in the Family Court because those orders are not final orders, the plaintiff relies on the reference in Justice Nettles' dissenting decision in Attwells v Jackson Lalic Lawyers Pty Ltd[13] and the Full Court of the Federal Court in Sims v Chong.[14]
[13] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [66].
[14] Sims v Chong [2015] FCAFC 80 [68] - [77].
The plaintiff also says that the proceedings are not an abuse of process because the plaintiff is not mounting a collateral attack on the Family Court's orders, but rather is saying that had the defendant conducted the case differently there is a real chance that the trial judge would have made final orders that the plaintiff's child live with her.[15]
[15] Plaintiff's submissions par 21.
Neither party specifically addressed the court separately on the application for summary judgment under O16 RSC.

Issues for determination

The issues that must be decided in order to determine the plaintiff's application are, therefore:
(a)Are the orders made by the trial judge in the Proceedings after either the first part of the Proceedings and the second part of the Proceedings properly categorised as final orders, or interlocutory or interim orders;
(b)If the orders, or any of them, are properly categorised as interlocutory or interim orders, is it arguable that the defence of advocate's immunity from suit is not available to the defendant in response to the plaintiff's claim;
(c)If it is arguable that the defence of advocate's immunity is not available to the defendant, are the proceedings otherwise an abuse of process.

Characterisation of the orders

Legal principles

The High Court held in Re Luck that the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. The question is answered by determining whether the legal effect of the judgement is final or not. If it is, it is a final order, otherwise it is an interlocutory order.[16]
[16] Re Luck (2003) 203 ALJ 1; [2003] HCA 70 [4].
In Carr v Finance Corporation of Australia Ltd (No 1)[17] an appeal was brought without leave from a decision refusing to set aside a default judgment obtained following the defendant's failure to file a defence within the time specified. The respondent objected to the competency of the appeal. In holding that a default judgment was an interlocutory order, Gibbs CJ observed:[18]
The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theroretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.
In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal.
[17] Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246.
[18] Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 248.

In CDW v LVE[19] the Court of Appeal considered an appeal from a Family Court magistrate dismissing an application for parenting orders. The magistrate had determined that the changes that had occurred since the parenting orders had been made were not sufficient to allow the matter to proceed again through the court process.[20] Relevantly, the Court of Appeal's jurisdiction to consider an appeal from a decision of a Family Court magistrate arose only if the decree appealed against was not an interlocutory order. An appeal against an interlocutory order of a Family Court magistrate lay with Family Court of Western Australia, with leave.[21]
[19] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297.
[20] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [68] (Martin CJ, Buss JA and Mitchell J agreeing).
[21] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [40].
The Court of Appeal found that the magistrate had correctly summarised the principles that applied to the jurisdiction to make changes to parenting orders as follows:[22]
(a)The best interests of the child remain throughout the paramount consideration;
(b)It is usually in the interests of the child that the orders made by the court are treated as determining the dispute and be given the necessary support;
(c)The proper administration of justice requires orders not be changed unless there are sufficient and weighty new facts and circumstances which throw sufficient doubt on the desirability of continuing the arrangements brought about by the previous order;
(d)The court should be reluctant to assume jurisdiction too soon after there has been a full and adequate hearing;
(e)The change needs to be significant or substantial - a matter of importance, of consequence, of real worth, of ample or considerable amount, quantity or size more than which would occur by the passage of time;
(f)The change must be such that a court would be left in no doubt that it was necessary to re‑litigate the parenting issue; and
(g)The change or fresh circumstance must be such that, if taken into account, there is a real likelihood that a change in orders may follow.
[22] CDW v LVE [2015] WASCA 247 [84] - [87] (Martin CJ).
The Court held that it had no jurisdiction to determine the appeal because parenting orders were interlocutory orders.[23] In arriving at that decision, Martin CJ referred to the authorities, including Carr v Finance Co,[24] and said that, as it was theoretically open to the father to make a further application for the same relief, the decision of the magistrate could not be said to have finally determined the rights of the parties in relation to the parenting orders governing the upbringing of their child.[25]
[23] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [68] (Martin CJ).
[24] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [45] ‑ [53] (Martin CJ).
[25] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [54] and [55] (Martin CJ).
Martin CJ also referred to a line of cases as having established that parenting orders can seldom, if ever,[26] be regarded as final orders, including In the Marriage of L, where the Full Court of the Family Court said:[27]
It has become a well established principle that custody and access orders can never be final orders incapable of change. Although, as we have said, frequent application in relation to both custody and access are undesirable, a party should not be deprived of approaching the court for a change in either custodial or access arrangements if such application is in the children's best interests and there are reasonable grounds for doing so.
[26] The theoretical possibility of an interim order as final being an order that the child live in another country: [57].
[27] In the Marriage of L (1989) 15 Fam LR 157, 163 ‑ 164.
Martin CJ rejected the argument that the order should be characterised as final because it finally determined the rights asserted by the father in respect of the application which he brought to vary the parenting orders previously made, as being directly contrary to the principles established in the High Court cases he had referred to.[28]

Conclusion on the characterisation of the orders

[28] CDW v LVE [2015] WASCA 247 [67] (Martin CJ, Buss JA and Mitchell J agreeing).

There is no provision in either the Family Court Act 1997 (WA) or the Family Law Act 1975 (Cth) defining an interim order. However, it is clear from the context in the legislation that, consistent with the ordinary meaning of the word 'interim' as 'a thing done in the interval',[29] an interim order is an order which is made before final orders are made, in anticipation that the interim order will be replaced by the final orders, and being a step in the process by which the final orders are arrived at. For example, s 70B of the Family Court Act 1997 (WA) provides that:
If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
The same provision appears in s 61DB of the Family Law Act 1975 (Cth).
[29] The New Shorter Oxford English Dictionary 1993 Clarendon Press.
It is also clear from what is said at [24] above that final parenting orders have the practical effect of determining the rights of the parties in relation to their child, in the absence of a significant or substantial change in circumstances.[30]
[30] This is also the effect of the plea referred to in [11](c) above, made in relation to the prospect of the father successfully applying to change the order if a final order had been made after the first part of the trial.
The final orders made after the second part of the trial included an order as to the mother's access to the child which, on the case pleaded, the Family Court apparently contemplated might be revisited in 12 months subject to the outcome of the expert's review, ordered in the interim orders (see [11](n)(i)B and [11](n)(ii)B above). As a final order, that order would also be subject to the requirement of a significant or substantial change before it could be re‑litigated. However, in any event, it is clear from the pleading that the plaintiff's claim does not concern the making of that order but rather the other two final orders, changing the person the child was to live with from the plaintiff to the father, and transferring sole parenting responsibility to the father, which the interim order concerning review does not contemplate revisiting.
I note that decisions of a Family Court judge on applications determining parental rights are appellable as of right, rather than with leave, whether in respect of the federal jurisdiction of the Family Court of Western Australia or the non-federal jurisdiction.[31] This may reflect the fact that by these applications the parental rights of the parties are judicially determined after trial.
[31] Family Law Act 1975 (Cth) s 94; Family Court Act 1997 (WA) s 211(3).
Whilst, however, the practical effect of final parenting orders is to finally determine the rights of the parties, subject to the right of appeal, on the authority of CDW v LVE, those orders are interlocutory orders as it is theoretically open to the parties to make a further application for a change in the parenting orders.
Accordingly I find that the parenting orders described as interim orders made by the trial judge after the first part of the Proceedings, and that the parenting orders described as final orders made by the trial judge after the second part of the Proceedings, are properly characterised as interlocutory, and not final, orders.

Advocate's immunity

The second issue is whether it is arguable the characterisation of the orders made in the proceedings as interlocutory, and not final orders, has the result of excluding the protection of advocate's immunity: in other words, whether it is arguable that the immunity does not apply to work done in court, or work out of court that is intimately connected with the work done in court, during a course of a trial, where it is theoretically open to the parties to bring a further application, although the practical effect of the judgment is to finally dispose of the rights of the parties in the absence of a significant or substantial change in circumstances, subject to exercising rights of appeal.

Legal principles

In Giannarelli v Wraith[32] the High Court considered whether a barrister was liable in negligence to his clients who were tried and convicted of perjury, the negligence alleged being the failure to advise that they had a good defence to the proceedings, and to object to certain inadmissible evidence tendered by the Crown, without which the Crown could not have succeeded.
[32] Giannarelli v Wraith (1988) 165 CLR 543.
Mason CJ said that:[33]
The second aspect of public policy that calls for attention is the impact on the administration of justice of allowing court decisions to become the subject of collateral attack by means of actions against counsel for in-court negligence. Exposure of counsel to liability for such negligence would unquestionably encourage litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation. That would be the central issue for decision in secondary litigation of this kind. If the plaintiff were to succeed, the resolution of this issue by a different court and on materials which may well differ from those presented in the initial litigation, due to lapse of time or other reasons, would undermine the status of the initial decision. Yet an appeal against that decision might not succeed with the result that it would stand, though its status would be tarnished by the outcome of the collateral proceedings. The impact of a successful challenge to a criminal conviction resulting in a sentence of imprisonment would be all the greater. It would be destructive of the confidence in the administration of justice. And for this very reason there would be a strong incentive on the part of a disappointed litigant to sue counsel for negligence as an indirect means of calling into question the decision in the initial litigation.
[33] Giannarelli v Wraith (1988) 165 CLR 543, 558 with whom Brennan J agreed on this point at 579 (Wilson and Dawson JJ making the same point at 573 ‑ 574 and 594 ‑ 595 respectively).
The High Court confirmed the immunity in D'Orta‑Ekenaike v Victoria Legal Aid[34] and Attwells v Jackson Lalic Lawyers Pty Ltd.[35]
[34] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
[35] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572.
The facts in D'Orta‑Ekenaike were that, at the applicant's trial on a charge of rape, the Crown tendered as evidence against him the guilty plea he had made at a committal hearing. Later the Victorian Court of Appeal quashed the conviction and ordered a retrial on the ground that the judge's directions in respect of the guilty plea were inadequate. At the retrial the presiding judge rejected the tender of the plea of guilty and the applicant was acquitted. The applicant commenced an action for damages against Victoria Legal Aid, his solicitor, and a barrister, claiming that as a result of their breaches of duty he had suffered injury, loss and damage, being loss of liberty, a psychotic illness, loss of income and the costs and expenses of the appeal and retrial. Victoria Legal Aid and the barrister applied for a stay on the basis that, following Giannarelli v Wraith, the applicant's claim did not disclose a cause of action because advocate's immunity applied. The stay was granted at first instance and on appeal, and the applicant sought special leave to appeal.[36]
[36] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [114] - [117] (McHugh J).
The plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ said that:[37]
32… the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question … No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy …
...
45Rather, 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 the tenet were 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 happened during, or in preparation for, the hearing that had been designed to quell the controversy. Moreover, it would be re‑litigation of a skewed and limited kind. No argument was advanced to this court of 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 the judge or witnesses to the events complained of, only the contribution of the advocate. An exception to the rule against reopening of controversies would exist, but one of an inefficient and anomalous kind.
[37] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [32], [34], [35] and [45].
Justice McHugh separately determined that the appeal should be dismissed and said:[38]
[38] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [97], [144], [166] ‑ [168] and [190].
97…[T]he immunity afforded advocates in Australia involves a recognition of the existence of obligations of due care and skill owed to clients, but for policy reasons denies a duty of care that gives rise to a cause of action in damages. That analysis accords with judicial statements that the immunity exists not to protect advocates from the consequences of their misconduct but solely for the enhancement of the administration of justice and public confidence in it. That analysis also explains the dividing line between the well-recognised exposure to liability for work not connected with the conduct of a matter in court and work covered by the immunity. It is the interjection of policy arising from the difficulties of proving that a different result would have ensued but for the carelessness of the advocate and the legal principle of finality that prevents an actionable duty of care arising.
...
144Their Honours [the majority in Giannarelli] also saw the retention of public confidence in the finality of curial resolution of disputes as important for the administration of justice. A successful claim of negligence against a practitioner depends on demonstrating that at least one outcome of the principal litigation was wrong. In circumstances where the result has not been first obtained by successful appeal, the possibility of inconsistent outcomes arises. … Inconsistent outcomes in criminal matters are an even greater concern for the administration of justice. The opportunity for a quasi-rehearing through collateral proceedings would be an incentive to a disappointed litigant to sue his or her advocate. Dawson J said on this issue:
'Nothing could be more calculated to destroy confidence in the processes of the courts or be more inimical to the policy that there be an end to litigation. If the decision of the court is wrong, the appeal process is the means by which it should be corrected. To allow the courts to be used to undermine its authority in other proceedings is clearly not in the public interest.'
...
166But where a trial has taken place, as the judgment of Gleeson CJ, Gummow, Hayne and Heydon demonstrates, public confidence in the administration of justice is likely to be impaired by the re‑litigation in a negligence action of issues already judicially determined.
...
190... The truly distinguishing feature of legal practice is that it results in enforceable judgments. Those legal judgments may be called into question on appeal, including by attacks on the quality of legal representation provided. However, it is inimical to the legal process and the administration of justice, that matters be re-litigated for a collateral purpose or that judgments be fundamentally called into question in ways that cannot result in their amendment.
(citations omitted)
The plurality in D'Orta-Ekenaike also said, in relation to nature of the client's complaint:[39]
66In every case the complaint must be that a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client has engaged. That consequence may take a number of forms. For the moment, it will suffice to identify what may appear to be the three chief consequences: (a) a wrong final result; (b) a wrong intermediate result; and (c) wasted costs.
…
70What unites these different kinds of consequences is that none of them has been, or could be, wholly remedied within the original litigation. The final order has not been, and cannot be overturned on appeal. The intermediate consequence cannot be repaired or expunged on appeal. The costs order cannot be set aside; the costs incurred cannot be recovered from an opposite party. And in every one of these cases, the client would say that, but for the advocate's conduct, there would have been a different result ...
[39] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [66] and [70].
With particular reference to the argument that a claim for wasted costs did not seek to impugn the judicial determination of the claim the plurality in D'Orta said:[40]
… Again, at first sight it might be thought that seeking to recover wasted costs would not cut across any principle of finality. But it is necessary to recall that the general rule is that costs follow the event. To challenge the costs order, therefore, will often (even, usually) involve a direct or indirect challenge to the outcome on which the disposition of costs depended. For the reasons given earlier, that should not be permitted lest a dispute about wasted costs become the vehicle for a dispute about the outcome of the litigation in which it is said that the costs are wasted.
[40] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [83].
Justice Edelman more recently discussed the limits of the immunity in Kendirjian v Lepore.[41] His Honour said:[42]
… Since the immunity attaches by the 'participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power', it followed that the immunity did not extend to advice that leads to a settlement between the parties. Advice leading to a compromise of a dispute cannot lead to the possibility of collateral attack upon a non-existent exercise of judicial power to quell disputes. … The test requires that the work bear upon the court's determination of the case …
(citations omitted)
[41] Kendirjian v Lepore [2017] HCA 13 [28] ‑ [32] (Edelman J, Keifel CJ, Bell, Gaegler and Keane JJ agreeing).
[42] Kendirjian v Lepore [2017] HCA 13 [31].
In support of the proposition that it is arguable that advocates immunity does not apply to the orders made in the Family Court, because those orders are not final orders, the plaintiff relies in particular on the reference in Justice Nettles' dissenting decision in Attwells v Jackson Lalic Lawyers Pty Ltd to the immunity applying where final orders resolving litigation have been made.[43] The plaintiff also relies on the decision of the Full Court of the Federal Court in Sims v Chong.[44]
[43] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [66].
[44] Sims v Chong [2015] FCAFC 80 [68] ‑ [77].

In Attwells the issue was whether advocate's immunity extended to negligent advice to settle proceedings which resulted in a consent order for judgment being filed. Nettles and Gordon JJ were in the minority in determining that the immunity did apply in those circumstances. Nettles J said:[45]
65As the majority observe on a fair reading of D'Orta-Ekenaike v Victoria Legal Aid, it may be said that the rationale of an advocate's immunity from suit does not extend to advice, unless it is advice which 'moves the case in court toward a judicial determination …
66The purpose of the advocate's immunity is to avoid the re‑litigation in collateral proceedings, or other civil causes of action, of issues determined in the principal proceedings. As Gordon J explains, it is based in policy that a controversy should not be re‑opened by a collateral attack which seeks to demonstrate that a judicial determination is wrong. Where, therefore, a final order has been made resolving the litigation, a claim that, but for the advocate's conduct, there would have been a different result is necessarily objectionable.
[45] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [65] and [66].
That comment was made in the context of his Honour's agreement with the reasoning of Gordon J, who said:[46]
106First, as D'Orta demonstrates, the immunity revolves around finality, the final quelling of a controversy by the exercise of judicial power …Work that contributes to the final quelling of a controversy by the exercise of judicial power is 'work intimately connected with' work in a court. That conclusion is fortified by the fact that the 'test' for whether the immunity applies must be considered in light of the principles which underpin it.
…
108… In this appeal, Mr Attwells' complaint is that he agreed to verdict and judgment being entered against him … Entry of verdict and judgment by admission or consent is as much the exercise of judicial power as entry of judgment after trial. In both, there is a final outcome – the final quelling of a controversy by the exercise of judicial power.
109Judicial power is difficult to define exhaustively; however 'an exercise of judicial power, it has been held, involved as a general rule a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that the exercise of the power creates a new charter by reference to which that question is in the future to be decided as between those persons or classes of persons'. The quelling of the controversy between the parties and the creation of a new charter of rights – by an exercise of judicial power – is recorded in a conclusive, binding and enforceable judgement or order of the court.
110A judgment or order 'quells' the controversy between persons ...
(citations omitted)
[46] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [106], [108] – [110].
In finding that advocate's immunity did not extend to negligent advice given to settle proceedings, the majority in Attwells said:[47]
But the intimate connection required to attract the immunity is a functional connection between the advocate's work and the judge's decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. Both D'Orta and Giannarelli were concerned with claims which impugned a judicial determination to which the allegedly negligent work of the advocate contributed. As will be seen from a closer consideration of the reasoning in D'Orta, the public policy, protective of finality, which justifies the immunity at the same time limits its scope so that its protection can only be invoked where the advocate's work has contributed to the judicial determination of the litigation.
[47] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [5]. The majority comprising French CJ, Kiefel, Bell, Gageler & Keane JJ.
The majority went on to say:[48]
It is apparent from the passages set out above from D'Orta that it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attract the immunity. Because that is so, the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by the court. …
[48] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [37].
The majority rejected the proposition that a judgment reflecting a compromise reached by consent was no less effective to quell a controversy that if it followed a contested hearing, saying:[49]
… The substantive content of those rights and obligations [established by the settlement agreement] was determined by the parties without any determination by the court. The public policy which sustains the immunity is not offended by recognising the indisputable fact that the terms of the settlement agreement, by reason of which the appellants' claim to have been damaged, were not in any way the result of the exercise of judicial power.
[49] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [59].
The majority also rejected the proposition that the immunity might extend to advice given not to settle proceedings saying:[50]
51… The central question would not be whether the court was right or wrong, but whether the advice was reasonable in all the circumstances known to the adviser at the time the advice was given ...
52… [T]he public policy which justifies the immunity is not concerned with the desirability or otherwise of settlements, but with the finality and certainty of judicial decisions. Decisions by the court, as the judicial organ of the State, are necessary precisely because the parties cannot achieve a compromise of their disputes. The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of and not the reason for the operation of the immunity …
(citations omitted)
[50] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [51] and [52].
In Sims v Chong the applicant appealed against the decision of a single judge of the Federal Court to strike out the respondent's claim on the basis that advocate's immunity provided a complete defence to a claim. The applicant's claim in that case concerned the quality of professional legal services rendered by the respondent to the appellant in, and in relation to, the conduct of proceedings in the District Court and then in the Supreme Court of Western Australia. The Supreme Court proceedings were ultimately struck out following a series of orders striking out successive versions of the statement of claim. On the fifth occasion the appellant was given time to apply to file an amended pleading.[51] The Full Court recorded the registrar's reasons in part as follows:[52]
44The next question is whether the plaintiff ought to have leave to re-plead. As I have mentioned already, there have now been five attempts to amend the statement of claim. That would normally be more than enough. But it does seem to me that, if the story is as the plaintiff tells it were made good by the evidence, then the defendant would have the benefit (if any) of having come into control or ownership of the various entities without having in any way compensated the plaintiff.
45There may be an arguable claim that the plaintiff can articulate: the present pleadings do not do it. …
[51] Sims v Chong [2015] FCAFC 80 [68] ‑ [77].
[52] Sims v Chong [2015] FCAFC 80 [17].
The appellant had terminated the respondent's retainer after the strike out application had been heard and before the registrar delivered his decision. The appellant then personally prepared a new minute of proposed statement of claim. At a subsequent hearing the registrar did not allow the amendment and struck out the action. An appeal to the Master of the Supreme Court against that decision was subsequently dismissed. The appellant did not appeal from the Master's decision, but brought a claim in the Federal Court against the respondent.[53]
[53] Sims v Chong [2015] FCAFC 80 [19] ‑ [22].
In part, the applicant's claim against the respondent was based on a misleading representation, made before any proceedings began, that the respondent was competent to act for the applicant. Relevantly, the claim was also based on the allegation that the respondent had failed to adequately plead the applicant's claims, which resulted in the registrar's decision to strike out the applicant's statement of claim for the sixth time. The applicant did not appeal that decision but claimed that the respondent should have advised the applicant of potential sustainable causes of action.
The court said that one issue on the appeal was whether the doctrine of advocate's immunity applies to enable a claim such as that of the appellant to be dismissed summarily, where there has been no trial and so no final determination after a hearing on the merits of the claim.[54] The court considered the authorities of Giannarelli and D'Orta‑Ekenaike, and said:
[54] Sims v Chong [2015] FCAFC 80 [41](1).
60The consequence is that, while the primary public policy considerations supporting the immunity have been refined and further explained, the plurality reasons in D'Orta-Ekenaike evince a clear intention to continue to recognise the immunity as recognised in Giannarelli and to maintain the line between where the immunity comes into existence and where it does not exist as explained in Giannarelli. The reasons of the majority in Giannarelli, in particular the reasons of Mason CJ referred to above, indicate that the line is to be drawn were the work is advocate's work (whether provided by a barrister or a solicitor) and is in relation to work done in court or work done out of court which leads to a decision affecting the conduct of the case in court.
…
62This appeal concerns the drawing of the line. There is … some difficulty in drawing the line where the relevant advocate's work or advice was done or given (or not done or given) prior to the commencement of the proceedings …
63Moreover, there appears to be a more robust application of the finality principle in some cases than others. It is evident that the line is to be drawn at least where the proposed claim might cause an inquiry (and outcome) which might differ from the judicially quelled controversy. In addition, a number of subsequent decisions support the conclusion that the line should be drawn in favour of immunity where the inquiry that would be prompted by the proposed claim might lead to a decision that the outcome of the judicially quelled controversy – even though it is accepted as being correct as it was presented – might be found to have produced a different result if the case had been conducted in a different way …
...
68The registrar's decision in this matter decided only that the pleading as presented did not disclose an arguable cause of action against Suda in contract and that accordingly, the action be struck out. Such a decision is interlocutory …
69The registrar's order … was an order dismissing an action because it did not disclose a reasonable cause of action. That order did (sic) have any final effect. In particular, it did not of itself, preclude the appellant from bringing and pursuing to final judgment a fresh proceeding based on a subsequent, properly pleaded cause of action arising out of his controversy with Suda.
70There was no judicially quelled controversy, in the sense that after a hearing, and upon evidence and submissions, the [Supreme Court] claim was determined. Indeed, the careful use of the expression 'conduct of the case in court' might support the analysis. As the plurality said in D'Orta-Ekenaike at [87]:
'87It describes the act or omissions to which immunity attaches by reference to the conduct of the case.'
McHugh in that case uses the expression 'judicially determined'.
71There has been no decision which determines that expression incorporates circumstances such as the present where, on the pleading, summary judgment is entered. The appellant accepted that the registrar correctly struck out the statement of claim and then dismissed the [Supreme Court] claim (and that the Master correctly dismissed the appeal from that decision). So at least in that respect, namely the potential for inconsistent decisions on a judicially resolved controversy, the public interest would not obviously enliven the immunity.
(citations omitted)
The court found that the claim arguably asserted conduct that fell outside that covered by the immunity, which was sufficient to dispose of the appeal.[55] The court also held that the assertions that the respondent should have advised the appellant of particular potential claims, and that the respondent represented a competence which she did not have, did not involve a collateral attack on the pleadings in the Supreme Court claim, and if successful would not suggest the registrar's decision was in error.[56]
[55] Sims v Chong [2015] FCAFC 80 [90] ‑ [92].
[56] Sims v Chong [2015] FCAFC 80 [74] ‑ [77].
The court went on to say:[57]
The position has been taken that, wherever a claim against an advocate might involve a reconsideration of the matter which has been the subject of a judicial determination … advocate's immunity protects the advocate from any liability. That has been applied, too, where the result of the judicial determination has not been sought to be altered, but it is said that the failure to take a point has resulted in additional unnecessary costs. It has been said to apply wherever the proposed opportunity to have the claim presented in a different way, with a potentially different result, even where it is accepted that the conduct of the 'advocate' was clearly delictual.

Consideration and conclusions on advocate's immunity

[57] Sims v Chong [2015] FCAFC 80 [94] (delictual meaning in violation of law).

The plaintiff submitted that her claim was concerned only with the interim orders made on 14 November 2014, and not the final orders made on 19 July 2016, and that in relation to the interim orders, the plaintiff does not seek to mount a collateral attack on the judgment of the court because the plaintiff does not seek to prove the trial judge was wrong in making the orders given the way the case was presented to that point. I consider that this submission does not accurately reflect the pleaded case. In my view, the plaintiff seeks in the current action to mount a collateral attack on the trial judge's decision to make the final orders in the terms made on 19 July 2016, as well as the interim orders made on 14 November 2014.
The hearing of the plaintiff's action requires this court to consider whether, had the first part of the proceedings been conducted differently, different interim orders would have been made to the orders made by the trial judge, and whether that may have led to the trial judge making a different decision about the final orders, from those acutally made, without the trial judge's decision having being first overturned on appeal. This is the situation referred to in Sims v Chong, referred to in [54] above.[58]
[58] Sims v Chong [2015] FCAFC 80 [63].
The defendant's conduct leading to the interim orders being made on 14 November 2014 was, on the plaintiff's admission, intimately connected to the conduct of the Proceedings in court. The trial judge's decision, and consequentially the orders made on 19 July 2016 were, on the plaintiff admission, made in reliance on the evidence led in the first part of the trial and not confined to the evidence led in second part of the trial,[59] as is obvious from the trial judge's reasons delivered on 19 July 2016.[60]
[59] Transcript of hearing on 15 May 2019 at pages 44 and 45.
[60] Attached to the plaintiff's affidavit sworn 2 April 2019, at RH7.
The plaintiff's claimed loss is for costs unnecessarily incurred in the first and second parts of the trial and continuing until final orders are made in terms of the interim orders made after the first part of the trial; that is in terms which are different to the final orders made by the trial judge. The plaintiff also claims the lost opportunity to receive benefits that would have been paid had final orders been made in terms of the interim orders after the first part of the trial; again final orders in different terms to those made by the trial judge.
It is inevitable that this court at trial will be asked to review the merits of the trial judge's decision, upon different evidence to that relied on by the Family Court, with the obvious potential to arrive at inconsistent outcomes.
The fact that a final order had been made by the court was not determinative of the question of whether advocate's immunity applied in Attwells. The majority made it clear that it was the certainty of a judicial determination made after a substantive hearing that underpinned the immunity. This is consistent with the emphasis in the passages referred to above in Giannarelli v Wraith, D'Orta and Kendirjian that the public policy consideration is the impact on the administration of justice of allowing judicial determinations, arrived at after trial, to be re‑litigated and called into question in ways that cannot result in their amendment.
The judicial determination of the trial judge in the Proceedings, after a substantive trial held over 22 days, had the effect of quelling the controversy between the parties, albeit the parties had a theoretical right to bring a fresh application which, in the absence of a significant or substantial change in circumstances, would be doomed to fail. In my view such a determination clearly falls within the public policy basis for the immunity. This is consistent with the references in the authorities to the immunity applying to intermediate decisions, such as the verdicts of a jury overturned on appeal in D'Orta.
I do not consider that the argument that the defence of advocate's immunity does not apply because the order the judge finally made after that determination is technically characterised as interlocutory for the purpose of determining rights of appeal has any prospect of success, in light of the authorities I have referred to.
I do not consider, as the plaintiff submits, that striking out the plaintiff's claim runs the risk of stifling the development of the law.[61] The authority relied on of Alpine Holdings Pty Ltd v Feinauer[62] concerned the question of whether it could be said where the line is to be drawn as to the application of the immunity in relation to advice given in relation to settlement of legal proceedings, which was at that stage unclear. The circumstances of the current case are quite different.
[61] Plaintiff's submissions [18].
[62] Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85.
In my view it is not reasonably arguable that the immunity does not apply. The defendant has a complete defence to the plaintiff's claim.

Abuse of process

Legal principles

A pleading may be an abuse of process if there is such a complete legal bar to the action that it must fail.[63] The jurisdiction must be exercised with circumspection. However, if the factual or legal basis for exercising the jurisdiction is made out, the court has a duty to intervene.[64]
[63] Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 109.
[64] McKechnie v Campbell (1996) 17 WAR 62, 75.

In Rogers v The Queen[65] Mason CJ, Deane and Gaudron JJ held it was an abuse of process for the prosecution to re-enter, in a subsequent trial, evidence which had been rejected in an earlier trial. Deane and Gaudron JJ (Mason CJ agreeing) referred to the fundamental principle, which is the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct.[66] Mason CJ observed that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
[65] Rogers v The Queen (1994) 181 CLR 251.
[66] Rogers v The Queen(1994) 181 CLR 251, 273.
In D'Orta the plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ considered the issue of abuse of process, in particular when it could be said the prosecution of the case was 'manifestly unfair' or might 'bring the administration of justice into disrepute among right thinking people', and said that:[67]
In cases where a client sues an advocate, the client will always have been a party to the proceedings the result in which is challenged. If effect is to be given to the principle that decisions of the courts unless set aside or quashed, are to be accepted as incontrovertibly correct, it must be applied at least to parties to the proceedings in which the decision is given. The final outcome of the proceeding, whether 'civil' or 'criminal' or a hybrid proceeding, must be incontrovertible by the parties to it.
(citations omitted)
[67] D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [79].
The defendant relies on the decision of Bell J in Goddard Elliott v Fritsch, where his Honour said that the High Court in Giannarelli and D'Orta‑Ekenaike treated finality as the critical consideration in determining what was in the public interest[68] and that, while those decisions were made in the context of advocate's immunity 'they are statements of general application on the particular importance which is attached by the High Court to the principle of finality'.[69] Consequently, his Honour said:[70]
I think that the abuse of process principle permits less reference to broader public interest considerations than the principle in the United Kingdom. Here finality as explained in these cases by the High Court is afforded very substantial weight indeed.
[68] Goddard Elliott v Fritsch [2012] VSC 87 [782].
[69] Goddard Elliott v Fritsch [2012] VSC 87 [785].
[70] Goddard Elliott v Fritsch [2012] VSC 87 [786].
Goddard Elliott v Fritsch was followed by Martin J in Corp v Robinson where the plaintiff had brought a claim against senior and junior counsel and an instructing solicitor who had conducted his defence in a nine week criminal trial. The focus of his grievance was counsels' failure to attend the last three days of trial, where the instructing solicitor appeared as counsel and during which the trial judge completed his charge, the jury retired and delivered its verdict.[71]
[71] Corp v Robinson [2012] WASC 490 [2] ‑ [4].
Martin J held that the action was clearly a challenge to the intermediate decision of the jury in a criminal trial prior to the Court of Appeals' decision, clearly challenged the finality principle notwithstanding the jury's decision was at an intermediate stage of the litigation, and that the case was on all fours with D'Orta.[72] His Honour went on to say:[73]
132I am also of the view that even without the protection of the immunity, the essential nature of the challenge as is now pleaded by Mr Corp would likely meet, as regards a criminal case, the description of an abuse of process, by reason of the inherent nature of the challenge against the finality of the jury's verdict. Even on the approach following in the aftermath of Arthur JS Hall & Co v Simons [1999] 3 WLR 873, significant difficulties still present for Mr Corp supporting this cause of action. I refer first in that respect to the observations in D'Orta by the plurality [57], [65] and [74] to [75] as to abuse of process in a criminal trial. Then I would adopt and respectfully apply recent observations on the subject of abuse of process in the surrounding context of immunity by Bell J, see again Goddard Elliott v Fritsch [2012] VSC 87 [769] – [789].
133Since I reach in the end my conclusion that the immunity is fully applicable and no party addressed me concerning abuse of process, I will say no more about that issue, other than that a court has an obligation to raise abuse of process on its own volition, where it is detected.
[72] Corp v Robinson [2012] WASC 490 [123].
[73] Corp v Robinson [2012] WASC 490 [132] and [133].
The plaintiff relies principally on the decisions of the Court of Appeal of Queensland in Rogers v Roche[74] and the Court of Appeal of New South Wales in Cleary v Jeans,[75] which the plaintiff says follow the law in the UK, and which I am bound to follow, over the decision of Bell J in Goddard Elliott, with the result that the reopening of a quelled controversy is just one factor in determining whether proceedings ought to be struck out as an abuse of process.
[74] Rogers v Roche [2016] QCA 340; [2017] 2 Qd R 306 (with whom Gotterson JA and Burns J agreed).
[75] Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355.
In Rogers v Roche, the appellant's personal injuries claim had proceeded to trial and the appellant had been awarded damages, including for past and future loss. The appellant claimed that because of the solicitors' breaches of duty of care, he lost the opportunity to receive considerably more under these heads. The appellant also claimed that the solicitors had breached their fiduciary duty to him by entering into the retainer not intending to fulfil pre‑contractual and contractual representations that his claim would be conducted by expert, appropriately resourced solicitors, delegating performance to a service company whose staff did not have the necessary expertise, qualifications and resources to prosecute the claim, and failing to inform the appellant of that, or that one of the solicitors had been charged and subsequent suspended from practice for breach of fiduciary duty and excessive charges.
Fraser JA[76] held that the test for advocate's immunity was not satisfied in relation to the claim based on the formation and continuation of the retainer, rather than any decision taken by the solicitors which affected the taking of any particular step in relation to this part of the claim.[77] His Honour then said:[78]
45Accepting that the principle favouring finality and certainty of judgments underlies re‑litigation abuse of process in both civil and criminal litigation, it does not follow that it has equal force in all cases as a factor in the decision whether re-litigation is an abuse of process. The collateral attack in Lewis v Hillhouse was upon a conviction for an offence following a jury verdict. That conviction altered the plaintiff's status in the eyes of the law and founded the court's authority to impose sentence, whereas the appellant's claim involves an inconsistency with the judicial determination of only one of a number of issues about the amount of loss the appellant sustained as a result of an accident. The respondents argued that the appellant's claim would open up all the issues in the personal injuries litigation. Even if that is so, and I express no view about it, there remains a significant difference between a challenge to a conviction upon a jury verdict and inconsistent judgments about liability and quantum in civil litigation.
…
47… It is not easy to see that allowing redress against a solicitor whose wrongful conduct in connection to litigation is responsible for a plaintiff's misadventure in a civil case is unjustifiably oppressive to that solicitor or would be likely to bring the administration of justice into disrepute.
…
50It is an aspect of all parts of the appellant's claim that he was deprived of a full opportunity of obtaining the entire amount of his economic loss by the wrongful conduct of the first and second respondents. To shut out of litigation of this part of the appellant's claim would be more likely to bring the administration of justice into disrepute than would conflicting judicial decisions about the appellant's economic loss reached upon different evidence.
(citations omitted)
[76] With whom Gotterson JA and Burns J agreed.
[77] Rogers v Roche [2016] QCA 340; (2016) 2 Qd R 306 [40].
[78] Rogers v Roche [2016] QCA 340; (2016) 2 Qd R 306 [45], [47] and [50].
In Cleary v Jeans[79] the primary judge had refused to strike out a claim as an abuse of process. The claim that the action was an abuse was based on earlier proceedings in the Federal Court where the respondent and his company had sued the Commonwealth Bank for misleading and deceptive conduct claiming damages and an order setting aside the respondent's guarantee of the company's indebtedness. During the trial the respondent sought leave, which was refused, to withdraw an admission that he had executed a personal guarantee. His signature had been attested by the appellant, Mr Cleary. The respondent alleged in the current proceedings that he relied on Mr Cleary's fraudulent misrepresentation in the attestation clause on the guarantee when he accepted his signature was genuine.
[79] Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355.
Handley JA said that the respondent's execution of the guarantee was fundamental to his whole case in the Federal Court and his three affidavits contained sworn statements to that effect, which were not equivocal and could support an estoppel against the amendments sought.[80] Advocate's immunity did not arise in that case. Handley JA held that the judgment in the Federal Court based on an estoppel would not be inconsistent with a judgment in the Supreme Court based on the truth and the fact the respondent has been held liable on the basis of an estoppel in one proceeding did not prevent him from relying on the truth against a different party in different proceedings, particularly when the respondent's liability in the first proceedings was a result of his reliance on a fraudulent misrepresentation by the person sued in the latter proceedings.[81]
[80] Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 [17].
[81] Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 [21] and [23].
In agreeing with Handley JA, Young CJ in Equity said:
61The history of the principle of abuse of process by a collateral attack on a judicial decision has been traced by the English Court of Appeal in Secretary of State for Trade and Industry v Bairstow.
62... Morritt VC laid down the following propositions from the cases, which, so far as they are relevant in NSW are as follows:
'[38](a)a collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of process of the court ...
(c)If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings;
(d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings or conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.'
63Mr Bell SC for the applicant put that this statement was, at least insofar as it differentiated between civil and criminal cases, unable to stand in the light of the High Court's decision in D'Orta … That may or may not be so and, further, the statement needs to be relaxed to accommodate the particular law that applies to barristers and advocates as a result of Giannarelli v Wraith … but I would accept it as a good general statement of the New South Wales law on the aspect of abuse of process currently under consideration ….
…
68In the instant case, the kernel of the plaintiff's case is that Mr Cleary's alleged fraud caused the plaintiff direct loss in bringing about the plaintiff's conduct in making an admission which directly caused him to suffer a verdict in the Federal Court.
69In this sense there is not really a collateral attack on the Federal Court judgment at all.
(citations omitted)

Conclusion on abuse of process

I accept the plaintiff's submission that the law in Australia does not provide that the principle of finality is the end of the matter when considering whether an action is an abuse of process, where advocate's immunity does not give rise to a defence. However, in my view the present case, where I have found that the plaintiff does seek to mount a collateral attack on parenting orders, which orders were decided by the Family Court after 22 days of hearing, and where it is conceded that the plaintiff's allegations are based on the defendant's negligence in carrying out work in court or which is intimately connected to the conduct of the court proceedings, is very different from that considered in Rogers v Roche and Cleary v Jeans.
Even had I accepted the plaintiff's submissions that it was arguable that advocate's immunity does not apply in this case, I would still strike out the proceedings as an abuse of process. I consider that to allow the Proceedings to be re-litigated in the District Court in these circumstances, and particularly in light of the nature of parenting orders referred to in [24] and [29] above, would inevitably bring the administration of justice into disrepute. Accordingly, I would strike out the proceedings on that basis.

Order 16 RSC

It follows from what I have found above in relation to the defence of advocate's immunity that I consider that the defendant has a good defence on the merits and that there is no serious question to be tried.

Conclusion

For these reasons I would allow the defendant's application and order that the plaintiff's claim be struck out, and that judgment be entered for the defendant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon
4 FEBRUARY 2020