Shari v Marshall Jovanovska Ralph

[2024] VCC 1948

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-24-01111

KEVIN SHARI	Plaintiff
v
MARSHALL JOVANOVKSA RALPH CRIMINAL LAWYERS	Defendant

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JUDGE:	HER HONOUR JUDGE TRAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2024
DATE OF JUDGMENT:	6 December 2024
CASE MAY BE CITED AS:	Shari v Marshall Jovanovska Ralph
MEDIUM NEUTRAL CITATION:	[2024] VCC 1948

REASONS FOR JUDGMENT
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Subject:TORTS

Catchwords:              NEGLIGENCE – Advocate’s immunity – Where plaintiff alleged lawyer provided incorrect advice which led to guilty plea – Whether summary judgment should be granted

Cases Cited:D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Arthur JS Hall & Co (a firm) v Simons [2000] UKHL 38; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Jiminez v Watson [2021] NSWCA 55; Goddard Elliot v Fritsch [2012] VSC 87; Collins v Metro North Hospital and Health Services [2013] QCS 194; Coshott v Barry [2009] NSWCA 34; Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303; M M & R Pty Ltd v Kerry Grills & Ors [2007] VSC 528

Judgment:                  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the Defendant	Ms L Dawson	McKay Law Pty Ltd

HER HONOUR:

Factual background

1The plaintiff, Kevin Shari, has brought these proceedings seeking damages for the tort of negligence from his former lawyer, Aaron Day of Marshall Jovanovska Ralph Criminal Lawyers.

2Mr Shari was represented by Mr Day in relation to two counts of breaching an intervention order made under the Personal Safety Intervention Orders Act 2010. The charges came on for hearing in the Magistrates’ Court on 13 June 2023. Mr Shari and Mr Day met for the first time shortly prior to the hearing. Mr Shari alleges that Mr Day:

(a)   was unprepared for the hearing;

(b)   pressured him to plead guilty to the first of the charges as part of a deal with the police, in which the second charge would be dropped;

(c)   told him he would have no further funding from Victoria Legal Aid (“VLA”) if he did not plead guilty; and

(d)   advised him that pleading guilty would have no consequences for employment checks; and that the most he would receive was a one-year good behaviour bond.

3Mr Shari alleges as a result of Mr Day’s negligent advice and representation he pleaded guilty.  The magistrate accepted his plea and sentenced him to an adjourned undertaking without conviction.  Mr Shari alleges that, contrary to Mr Day’s advice, this was disclosed on his criminal record; and as a result he lost employment opportunities.  Mr Shari went on to appeal his conviction to the County Court as a self-represented litigant and secured a not guilty verdict.  He says this demonstrates Mr Day’s negligence.

4Mr Day has applied for summary judgment on the grounds that any claim against him is barred by the immunity from suit available to legal practitioners for work intimately connected with work in a court (“the advocate’s immunity”).  Mr Day relies on the decision of D’Orta-Ekenaike v Victoria Legal Aid,[1] in which six of the seven members of the court confirmed that the advocate’s immunity continued to form part of the common law of Australia.[2]  He contends that Mr Shari’s claim has no real prospects of success and summary judgment should be granted.

[1](2005) 223 CLR 1 (“D’Orta”)

[2](Ibid).  Recently affirmed by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 (“Attwells”)

5As a County Court judge, I am bound by a decision of the High Court.  I have no power to depart from the High Court’s reasoning.  It is no part of my role to consider the cogency of the High Court’s policy justifications for the preservation of the immunity; or whether the approach of the House of Lords in Arthur JS Hall & Co (a firm) v Simons,[3] and in other common law jurisdictions, should be preferred.  Unless there is a basis for distinguishing D’Orta, with a real prospect of success, I must dismiss Mr Shari’s claim.

[3] [2000] UKHL 38

6There is no such basis in the present case.  In D’Orta, the High Court was considering an appeal by a client whose claim against his former lawyers (a VLA solicitor and a barrister) had been summarily dismissed by a County Court judge.  The client alleged he had pleaded guilty at a committal hearing as a result of the negligent advice of his lawyers.  Specifically, he alleged that they:

(a)   had incorrectly advised him he did not have a defence;

(b)   had incorrectly advised him as to the effects of pleading guilty or not pleading guilty;

(c)   had failed to advise him that evidence of his guilty plea could be tendered in evidence at trial; and

(d)   had placed undue pressure and influence upon him to plead guilty.

7The client was convicted at trial after evidence of his guilty plea at the committal hearing was tendered in evidence.  His conviction was subsequently overturned.  On the re-trial, he was acquitted.

8The majority of the High Court affirmed the existence of the advocate’s immunity;[4] affirmed it applied to out-of-court work, where that work is intimately connected with work in a court or leads to a decision affecting the conduct of the case in court;[5] affirmed it applied to work done in connection with both civil and criminal cases;[6] affirmed it applied to both barristers and solicitors;[7] affirmed that advice about whether to plead guilty at a committal fell within its scope;[8] and affirmed that the advocates’ immunity applied, even where the conviction was subsequently overturned.[9]

[4]        At 30-1, paragraph [84]

[5]        At 31, paragraphs [86]-[87]

[6]        At 28-9, paragraphs [76]-[79]

[7]        At 32, paragraph [90]

[8]        At 30, paragraph [81]

[9]        At 30, paragraphs [81]-[82]; see also Jiminez v Watson [2021] NSWCA 55

9Mr Shari contended that D’Orta could be distinguished because he was claiming for a negligent omission.  He contended that advocate’s immunity only applied to a “conscious or articulated decision about the management of litigation which affects the final determination”.[10]  It is difficult to see how Mr Shari’s claims can be characterised as based solely on negligent omission, given his case is that he relied on positive advice given by Mr Day in agreeing to plead guilty.  Regardless, the distinction he seeks to draw does not provide a coherent basis to limit the advocate’s immunity.  The majority in D’Orta did not confine the immunity to negligence, let alone specific forms of negligence.  To the contrary, the majority explained that the advocate’s immunity applied “whether for negligence or otherwise”.[11]  As said by McHugh J in D’Orta (when considering whether the advocate’s immunity was available for a failure to warn):

“… The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence … There is no relevant distinction between instructions given on negligent advice and the negligent carrying out of instructions if both are intimately connected with the conduct of litigation.”[12]

[10]        Submissions of the Plaintiff, dated 28 August 2024 at paragraph [3]

[11]At 31, paragraph [85]; see also Goddard Elliot v Fritsch [2012] VSC 87 at paragraph [835]; see also Collins v Metro North Hospital and Health Services [2023] QSC 194 at paragraph [81(b)]

[12]        At 53, paragraph [157]

10Mr Shari relied upon the decision of Coshott v Barry.[13]  He contended that case recognised that legal omissions, particularly those not directly tied to the conduct of the trial, may fall outside the scope of immunity.  Coshott was a case in which the New South Wales Court of Appeal upheld the trial judge’s decision to dismiss all six claims of professional negligence against a solicitor.  It concerned a civil proceeding which was resolved by settlement. It was factually very different from this case.  The alleged negligence covered the entire period of the retainer; and was not limited to acts or omissions which directly led to negotiated resolution.  Ipp JA held that the determination by the solicitor of which claims for relief should be included when initiating proceedings was not covered by the advocates’ immunity as “the period from the time the retainer commenced to the trial itself was too long for the requisite connection to the conduct of the case in court to be established”.[14]  As explained by White J in Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors:[15]

“Subsequent authorities have established that the immunity applies not only where a positive decision is made as to what should be done or not done in the litigation, but also where the client’s complaint is that the lawyer was negligent by omission rather than by the making of a considered (but wrong) decision not to do something. That was the case in Keefe v Marks (1989) 16 NSWLR 713 (at 718-719) and Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 (at [9]-[12]). It may have been the case in Giannarelli v Wraith. It is true that in Coshott v Barry [2009] NSWCA 34 Ipp JA (with whom Beazley and Campbell JJA agreed) said (at [62]) that advocate’s immunity did not apply to an alleged failure on the part of a solicitor at the commencement of his retainer to advise on the form of relief that should be sought on the taking of an account against a mortgagee in respect of the exercise of a power of sale on the ground that ‘The period from the time the retainer commenced to the trial itself was too long for the requisite connection to the conduct of the case in court to be established.’ But in Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Ipp JA effectively recanted. He said that the finding should be understood as confined to the specific facts of that case and not as laying down any principle of broader application (at [127]). In Donnellan v Woodland [2012] NSWCA 433 Beazley JA also took a different view noting that “it could be argued that the Court’s decision is contestable, given the approach to the application of the immunity which I have discussed in this case” (at [214]).

[13] [2009] NSWCA 34 (“Coshott”)

[14]At paragraph [62]

[15][2016] NSWSC 303 at paragraph [159]

11Even if Mr Shari were relying solely upon an allegation of negligent omission, it would fall within the scope of the advocate’s immunity.  Further, the alleged conduct he is relying upon – advice given immediately prior to a hearing which led to him pleading guilty at that hearing – is incontrovertibly intimately connected with the conduct of the case in court.  Indeed, it is not different in any meaningful way from D’Orta, which was also a case in which it was claimed a guilty plea was entered as a result of incorrect advice and undue pressure from the applicant’s lawyers.  The allegations made by Mr Shari are not comparable with those dealt with in Coshutt (failure to include claims when initiating a proceeding) or M M & R Pty Ltd v Kerry Grills & Ors[16] (delay and inaction in progressing a proceeding over twelve months). 

[16] [2007] VSC 528

12Mr Shari also contended that the advocate’s immunity did not apply because he alleged Mr Day had negotiated a settlement with police without his consent.  The High Court in Attwells determined that the advocate’s immunity does not extend to negligent advice which leads to an agreed settlement, if the settlement does not move the case toward a judicial determination.  However, in this case, Mr Shari alleges that, because of Mr Day’s conduct, he pleaded guilty in court, which lead to a judicial finding of guilt against him that was included in his criminal record.  The High Court in Attwells specifically noted that:

“… negligent advice to plead guilty…when accepted by the client, does affect the determination of the case by the court … .

… the judicial function is squarely engaged in determining whether to accept a plea of guilty. A court may not accept the plea of guilty unless it is satisfied that it is freely made by the accused.”[17]

(Footnote omitted.)

[17]        At 23-4, paragraphs [43]-[44]

13Again, there is no meaningful difference between Mr Shari’s claims and D’Orta, in which it was alleged that the applicant had been pressured into agreeing to plead guilty based on incorrect advice.

14Mr Shari also contended he did not give informed consent to plead guilty.  Mr Shari relied upon a series of cases concerning the meaning of criminal negligence, the meaning of consent, or the provision of consent to medical treatment.  These cases are not relevant to the scope of the advocate’s immunity.  Again, there is no meaningful difference between the allegations made in this case and the allegations made in D’Orta.

15Finally, Mr Shari relied upon his contention that Mr Day’s conduct (both at the time and during the course of this proceeding) demonstrated a lack of ethics; and his sense of unfairness that what he perceived as a miscarriage of justice should go without a remedy.  If anything, these go to the merits of his underlying claim against Mr Day.  They are not relevant to the scope of the advocate’s immunity.

16I am bound by the decisions of the High Court to find that the advocate’s immunity protects Mr Day from the claims made by Mr Shari against him in this proceeding.  Mr Shari’s claim has no real prospects of success.  The proceeding is dismissed.

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