Shari v Marshall Jovanovska Ralph Criminal Lawyers
[2025] VSCA 54
•3 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2025 0002 |
| KEVIN SHARI | Applicant |
| v | |
| MARSHALL JOVANOVSKA RALPH CRIMINAL LAWYERS | Respondent |
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| JUDGES: | BEACH and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 March 2025 |
| DATE OF JUDGMENT: | 3 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 54 |
| JUDGMENT APPEALED FROM: | [2024] VCC 1948 (Judge Tran) |
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LEGAL PRACTITIONERS — Negligence — Solicitor — Immunity from suit — Advice leading to plea of guilty — Advice given shortly prior to entry of plea of guilty in Magistrates’ Court — Whether summary judgment correctly granted — Leave to appeal refused.
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Ms L Dawson | ||
Solicitors | |||
| Applicant: | -- | ||
| Respondent: | McKay Law Pty Ltd | ||
BEACH JA
KENNEDY JA:
The applicant was represented by the respondent in relation to two charges of breaching an intervention order brought under the Personal Safety Intervention Orders Act 2010.
The charges came on for hearing in the Magistrates’ Court on 13 June 2023. The applicant says that he met Aron Day, of the respondent, for the first time, shortly prior to the hearing. He also alleges that, as a result of Mr Day’s negligent advice, he pleaded guilty to one of the charges (with the other charge being withdrawn).
The Magistrate accepted the plea and sentenced the applicant to an adjourned undertaking without conviction. The applicant alleges that, contrary to Mr Day’s advice, this result was disclosed on his criminal record, and as a result he lost employment opportunities. He also subsequently successfully appealed his conviction to the County Court which set aside the Magistrate’s orders and ordered that the charges be dismissed.[1]
[1]The applicant also issued a separate proceeding challenging the conduct of Victoria police in relation to the laying of the charges. This matter is dealt with in a separate judgment of this court also delivered this day: Shari v State of Victoria [2025] VSCA 55.
The applicant made a claim in negligence and breach of contract in the County Court against the respondent about the advice given to him by Mr Day.
At first instance,[2] a County Court judge granted summary judgment in favour of the respondent on the basis that the actions the subject of complaint were immune from suit by reason of advocate’s immunity (‘the immunity’). She cited two decisions of the High Court in doing so: D’Orta-Ekenaike v Victoria Legal Aid (‘D’Orta’)[3] and Attwells v Jackson Lalic Lawyers Pty Ltd (‘Attwells’).[4]
[2]Shari v Marshall Jovanovska Ralph Criminal Lawyers [2024] VCC 1948 (‘Reasons’).
[3]D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (‘D’Orta’).
[4]Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 (‘Attwells’).
The applicant, who is self-represented, now seeks leave to appeal that decision. He challenges the application of the immunity by proposed ground one which reads as follows:
the primary judge erred in concluding that the advocate’s immunity applies to the negligent advice given by the applicant’s former solicitor. The advice in question was provided prior to the court hearing and involved undue pressure and a lack of informed consent, which is distinct from conduct intimately connected with court proceedings, as defined in D’Orta and Attwells.
The applicant also makes various other complaints in his other proposed grounds, which read:
(a)the primary judge failed to properly consider whether the plea of guilty was entered without informed consent due to misleading advice and coercion from the applicant’s former solicitor. This raises questions about whether the plea was freely and voluntarily made, as required under the principles set out in Attwells (proposed ground two);
(b)the primary judge misidentified the applicant’s former solicitor as ‘Mr Marshall’ instead of ‘Mr Aron Day’, demonstrating that the judgment was made without proper attention to the evidence or documents submitted. This constitutes an error of fact and undermines the credibility of the findings (proposed ground three);
(c)the primary judge dismissed allegations of unethical conduct by the applicant’s former solicitor as irrelevant to the advocate’s immunity, despite the claims being central to the fairness and integrity of the legal process. Ethical breaches should have been considered as part of the determination (proposed ground four);
(d)the primary judge failed to recognise that the alleged negligent advice directly contributed to a miscarriage of justice, resulting in an unwarranted guilty plea and judicial determination. The plea was not a true reflection of the applicant’s intention or the merits of the case (proposed ground five); and
(e)the primary judge did not adequately review or consider the affidavits and defence documents submitted by the applicant, which demonstrated the lack of informed consent and coercion involved in the decision to plead guilty (proposed ground six).
For reasons expressed below, the application for leave to appeal must be refused.
Applicant’s claims
The writ and statement of claim is repetitive and somewhat unclear, but appears to include the following key claims about Mr Day’s conduct:
(a)he was unprepared for the hearing;
(b)he advised the applicant to plead guilty and ‘insisted’ on that course, despite the applicant continuing to maintain his innocence;
(c)he told the applicant that he would have no further funding from Victoria Legal Aid (‘VLA’) if he pleaded not guilty; and
(d)he advised the applicant that a guilty plea would not appear on his criminal record (which was untrue).
The applicant thereby claimed compensation by reason of the loss of job opportunities, flowing from the result in the Magistrates’ Court, as well as emotional distress.
Judge’s reasons
The judge recorded that the application for summary judgment was on the grounds that any claim against the respondent was barred by the immunity available to legal practitioners for work intimately connected with work in a court. The respondent relied on the decision in D’Orta, which was affirmed in Attwells.[5]
[5]Reasons, [4].
The judge observed that she was bound by the decision of D’Orta unless there was a basis for distinguishing it, and found there was no such basis, where the plaintiff in D’Orta also alleged that he pleaded guilty (at a committal hearing) as a result of negligent advice of his lawyers.[6]
[6]Ibid [5]–[6].
The judge also rejected the applicant’s suggestion that D’Orta could be distinguished because his claim was made in relation to a negligent omission. The judge found it difficult to see how his claims could be characterised as based solely on negligent omission given he said that he relied on positive advice in agreeing to plead guilty. Regardless, the judge found that the distinction raised did not provide a coherent basis to limit the immunity in circumstances where the majority in D’Orta did not confine the immunity to negligence, let alone specific forms of negligence.[7]
[7]Ibid [9].
The judge also distinguished the case of Coshott v Barry (‘Coshott’),[8] which the applicant relied upon. In that case Ipp JA (with whom Beazley and Campbell JJA agreed) considered that the determination by a solicitor of which claims for relief should be included when initiating proceedings was not covered by the immunity as the requisite connection to the conduct of the case in court was not established.[9] The judge found Coshott to be factually distinct. She found that the alleged conduct the applicant relied upon — advice given immediately prior to a hearing which led to him pleading guilty at that hearing — was incontrovertibly intimately connected with the conduct of the case in court.[10] She considered the allegations were not different in any meaningful way from D’Orta and were not comparable to Coshott or another case, MM & R Pty Ltd v Grills[11] (which concerned delay and inaction in progressing a proceeding).[12]
[8]Coshott v Barry [2009] NSWCA 34 (‘Coshott’). Cf Burrell Solicitors Pty Ltd v Reavill Farm Pty Ltd [2016] NSWSC 303, [159] (White J).
[9]Coshott [2009] NSWCA 34, [62] (Ipp JA, Beazley JA agreeing at [1], Campbell JA agreeing at [113]).
[10]Reasons, [11].
[11]MM & R Pty Ltd v Grills [2007] VSC 528.
[12]Reasons, [11].
The judge also rejected the applicant’s submission that the immunity did not apply because the solicitor had negotiated a settlement without his consent. The judge noted that the High Court in Attwells determined that the 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, the applicant alleged that, because of Mr Day’s conduct, he pleaded guilty in court which did lead to a judicial finding of guilt against him that was included in his criminal record. Again, there was no meaningful difference with the claims made in D’Orta, where it was alleged that the applicant had been pressured into agreeing to plead guilty based on incorrect advice.[13]
[13]Ibid [13].
The judge then dealt with the applicant’s claim that he did not give informed consent to plead guilty, relying on a series of cases in doing so. She found that the cases relied upon were not relevant to the scope of the immunity and that there was again no meaningful difference between the allegations in this case and those made in D’Orta.[14]
[14]Ibid [14].
The judge also referred to the applicant’s argument that Mr Day’s conduct demonstrated a lack of ethics, as well as his ‘sense of unfairness’ that ‘a miscarriage of justice should go without a remedy’. She found that, if anything, those factors went to the merits of the applicant’s underlying claim, but were not relevant to the scope of the immunity.[15]
[15]Ibid [15].
Ultimately, the judge found that she was bound by the decision of the High Court to find that the immunity protected the respondent from the claims made by the applicant. She therefore found that his claim had no real prospects of success.[16]
[16]Ibid [16].
Applicant’s submissions
The applicant’s written submissions addressed proposed grounds one and two.
In relation to proposed ground one, he submitted that the judge failed to properly distinguish between in-court advocacy and ‘pre-court advice’. He submitted that pre-court advice fell outside the scope of the immunity because it was not sufficiently connected to in-court advocacy, or judicial determination, as clarified in Attwells. Since the advice provided by Mr Day was given immediately prior to the hearing, it was pre-court advice and therefore outside the scope of the immunity.
In relation to both proposed grounds, the applicant sought to advance a wide range of complaints about Mr Day’s professionalism, ethics and credibility. These included that he made a racially discriminatory remark in claiming there was no funding; that he failed to provide adequate legal advice and did not communicate or prepare; that he was never authorised to plead guilty — which plea was not made voluntarily and with informed consent; that the applicant was pressured into pleading guilty; and that Mr Day provided conflicting affidavits.
The applicant also submitted that the judge failed to properly read or engage with his submissions as evidenced by the fact that she prepared an earlier version of the judgment which wrongly referred to a solicitor named ‘Marshall’, rather than Mr Day.
In a further submission made by email of 12 March 2025 the applicant provided a document entitled ‘Oral argument’, wherein he alleged that his case involved serious breaches of legal ethics which led to his wrongful plea and psychological damage. He highlighted that he was ultimately found not guilty on appeal and again claimed that he was pressured into making his plea of guilty. He submitted that the immunity does not extend to acts of fraud, dishonesty or misconduct. He highlighted that he was misled about funding and coerced into an unwarranted plea; that Mr Day failed to obtain his informed consent and ignored his instructions. He also alleged that Mr Day had committed perjury by providing false information to the court.
In a further submission provided by the applicant on 24 March 2025, he largely reiterated his complaints based on inconsistent affidavits, coercion, lack of informed consent and lack of preparation. He also sought support from a number of authorities, including the decision of Rogers v Whitaker.[17]
[17]Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.
Proposed ground one
It is convenient to consider proposed ground one first, before moving to consider the other proposed grounds, together.
In D’Orta, an applicant made a claim against his former lawyers (a VLA solicitor and a barrister) alleging that they had failed to exercise reasonable care in giving him advice. That claim had been permanently stayed by a County Court judge on the basis of the immunity. This court had then refused leave to appeal from the judge’s decision.
The applicant alleged that he had pleaded guilty at a committal hearing as a result of the negligent advice of his lawyers. The relevant advice was given at a conference two days before the date appointed for the committal proceeding and again at a further conference at the Magistrates’ Court on the day of, but before the commencement of, the committal proceeding.
The allegations made in D’Orta included that the applicant was incorrectly advised that he did not have a defence; that if he entered a guilty plea he would receive a particular disposition (which did not occur); and that undue pressure and influence was exerted upon him as a result of which he entered a guilty plea.
The applicant was convicted at trial after evidence of his guilty plea at the committal hearing was tendered in evidence. His conviction was subsequently overturned and he was ultimately acquitted on the re-trial.
In dismissing the appeal, six members of the Court confirmed that the immunity continued to form part of the common law of Australia: Gleeson CJ, Gummow, Hayne and Heydon JJ in a joint judgment, as well as McHugh and Callinan JJ. In affirming the existence of the immunity, the plurality found that no sufficient reason was proffered for reconsidering the court’s earlier decision in Giannarelli v Wraith (‘Giannarelli’)[18] that an advocate is immune from suit ‘whether for negligence or otherwise in the conduct of a case in court’.[19]
[18]Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52.
[19]D’Orta (2005) 223 CLR 1, 31 [85] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
The plurality also considered that there was no sufficient reason for redrawing the boundaries of the principle and reiterated that the principle applied to work done in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’.[20] In applying the principle, they found that, although the barrister’s advice was given out of court, it was work which led to a decision which affected the conduct of the case at the subsequent trial.[21] They also affirmed that the same could be said for the advice given by the solicitor, such that the immunity also applied to the solicitor.[22]
[20]Ibid 31 [86] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[21]Ibid 32 [88] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[22]Ibid 32 [89]–[91] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
Justice McHugh agreed with the plurality, finding that a decision about a plea of guilty cannot be described other than as ‘intimately connected with the conduct of a criminal cause’.[23] He also rejected the applicant’s attempt to distinguish the case from Giannarelli on the basis that it involved a failure to warn, in the Rogers v Whitaker sense. The issue was ‘whether the relevant connection with the conduct of the litigation exists, not the form of the negligence’.[24]
[23]Ibid 51 [152].
[24]Ibid 53 [157] (McHugh J). See also Callinan J at 121 [387].
As correctly acknowledged by the judge in this case, the immunity principle has also been more recently affirmed in the decision of the High Court in Attwells. However, a majority in that case highlighted that the scope of the immunity is confined to conduct of the advocate which contributes to a judicial determination.[25] The immunity was inapplicable to a situation where the work of the advocate led to an agreement between parties to litigation to settle their civil dispute. Notwithstanding that a consent order was made which reflected this agreement, the majority considered that no exercise of judicial power determined the terms of the agreement, or gave it effect. The immunity principle was hence not engaged in that case.[26]
Analysis
[25]Attwells (2016) 259 CLR 1, 22 [37] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
[26]Ibid 28 [62] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
We agree with the judge that the claims made in this case cannot be meaningfully distinguished from the claims made in D’Orta. The entire basis for the applicant’s case, as in D’Orta, was that he pleaded guilty as a result of the negligent advice of a legal practitioner (in the applicant’s case, Mr Day).
The applicant’s submissions to the effect that the immunity did not apply must also be rejected.
First, the applicant’s complaint that a claim of undue pressure took his case outside the immunity is unsustainable given that the case of D’Orta involved such a claim.
Next, the applicant’s submission that there is a distinction because there was only ‘pre-court advice’ is also without merit. The advice given in D’Orta was also given prior to the committal proceeding in court. But, as in D’Orta, the advice in this case was intimately connected with work in a court, insofar as it led to the applicant pleading guilty at a hearing in the Magistrates’ Court, which in turn led to a judicial finding of guilt. The applicant’s other complaints about Mr Day’s conduct (for example, of unethical conduct) did not advance his case for similar reasons. Such conduct was also related to the making of the plea, and hence connected with the conduct of a case in court. In fact, on the applicant’s case, he only met Mr Day shortly prior to the hearing.
The applicant’s reliance on Attwells also does not assist him. To the contrary, the Court in Attwells distinguished between negligent advice which leads to the settlement of a claim in a civil proceeding, with negligent advice in relation to a plea of guilt. In the latter case (applicable here), the Court expressly stated that when such advice is accepted, this ‘does affect the determination of the case by the court’.[27]
[27]Ibid 23 [43] (French CJ, Kiefel, Bell, Gageler and Keane JJ), citing D’Orta (2005) 223 CLR 1, 51–2 [152]–[153] (McHugh J) (emphasis in original).
The fact that the applicant’s charges were set aside on appeal also takes the matter no further.[28] The principle in D’Orta is not dependent on the level of the court, but rather, whether the work done leads to a decision affecting the conduct of a case in court. The plurality also expressly stated that if final results cannot be challenged, then intermediate results should not be treated differently.[29]
[28]The applicant appeared to emphasise this point in further emails sent to the court after the hearing of this application on 26 March and 28 March 2025.
[29]D’Orta (2005) 223 CLR 1, 30 [82] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
We have also considered the authorities the applicant sought to rely upon. None of those authorities suggest that the immunity is inapplicable. Insofar as the applicant relied upon the fact that his case involved a failure to warn in the Rogers v Whitaker sense, the judgment of the plurality makes clear that the principle does not depend on the character of the negligence, but rather the connection with work in a court. As also set out above,[30] McHugh J expressly rejected any distinction based on Rogers v Whitaker.
[30]See above [32].
In summary, the complaints about Mr Day’s conduct made in the proceeding before the judge fell squarely within the immunity, as the judge correctly found.
Proposed ground one must fail.
Other proposed grounds
Given the failure of proposed ground one, none of the other claims can be maintained. Rather, as the judge correctly observed, the various complaints made about Mr Day’s conduct, even if made out, could only affect the merits of the underlying claims against him. If the immunity applies, they cannot succeed.
A similar point can be made about the attack on the judge. Given her finding that the immunity applied she was entitled to dismiss the claim, regardless of the merits of the underlying complaints made against Mr Day. There is also no merit in the suggestion that she failed to give ‘proper attention’ as the applicant alleged. The judge’s reasons are succinct, comprehensive and correct.
Conclusion
The application for leave to appeal must be refused.
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