Vivien Hicks v Slater and Gordon Ltd (ACN 097 297 400)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0007

VIVIEN HICKS	Applicant
v
SLATER AND GORDON LTD (ACN 097 297 400)	Respondent

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JUDGES:	ORR, KAYE JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024
DATE OF JUDGMENT:	3 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 298
JUDGMENT APPEALED FROM:	[2023] VCC 2223 (Judge Macnamara)

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NEGLIGENCE – Professional negligence – Applicant alleged solicitor mishandled personal injury claim – Solicitor retained discredited expert ergonomist – Solicitor allegedly delayed in retaining expert – Solicitor allegedly failed to arrange site visit for expert – Expert not called at trial – Whether judge erred in finding that failure to arrange site visit did not cause expert to not be called – No error.

NEGLIGENCE – Professional negligence – Solicitor allegedly failed to follow instructions to exclude certain juror – Whether judge erred in finding that no instruction given – No error.

PRACTICE AND PROCEDURE – Summary dismissal – Judge on summary dismissal application appeared to determine that advocate’s immunity did not protect solicitor – Whether final determination of issue – Determination not final – Whether solicitor’s attempt to renew summary dismissal application constituted abuse of process – Judge refused attempt to renew – Applicant’s complaint of no consequence.

NEGLIGENCE – Professional negligence – Advocate’s immunity – Whether solicitor’s retention of expert protected by advocate’s immunity – Unnecessary to decide – Applicant failed to prove loss or damage.

PRACTICE AND PROCEDURE – Whether judge erred in discussing evidence of one witness in presence of another witness – Judge should have requested witness to leave courtroom – No material injustice to applicant.

Civil Procedure Act 2010, ss 62, 63; County Court Civil Procedure Rules 2018, r 22.16.

Blair v Curran (1939) 62 CLR 464; Jones v Dunkel (1959) 101 CLR 298; Fox v Percy (2003) 214 CLR 118; Kuligowski v Metrobus (2004) 220 CLR 363; Lee v Lee (2019) 266 CLR 129; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; The Bishop of the Roman Catholic Diocese of Wagga Wagga, Mark Edwards v TJ (a pseudonym) [2024] VSCA 262; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485.

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Counsel
Applicant:		In person
Respondent:		Mr P Over
Amici curiae:		Ms NE Hodgson with Dr APA Best
Solicitors
Applicant:	--
Respondent:	Colin Biggers & Paisley

ORR JA
KAYE JA
J FORREST AJA:

The applicant, Ms Vivien Hicks, seeks leave to appeal from a decision of the County Court dismissing her professional negligence claim against the respondent, Slater and Gordon Ltd (‘Slaters’).
Ms Hicks was employed as a legal secretary at the Shepparton office of the law firm, Faram Ritchie Davies (‘FRD’), where she injured her back at work on 30 August 2010, when she reached to collect a document from a printer.
In 2012, Ms Hicks instructed Slaters to act on her behalf in respect of a common law claim against FRD (‘FRD claim’). She obtained the leave of the County Court to institute the FRD claim in 2015. Prior to trial, Slaters engaged Mr Mark Dohrmann, an ergonomist, to provide an expert opinion about the circumstances in which Ms Hicks was injured. The trial was heard by Judge Dyer and a jury of six sitting in Wodonga in August 2016. The report produced by Mr Dohrmann, which Slaters had served on FRD prior to the trial, was not relied on. The trial ran for seven days. At its conclusion, the jury dismissed the FRD claim.
Ms Hicks then instituted a claim against Slaters, alleging that Slaters had engaged in professional negligence in its handling of the FRD claim. The claim against Slaters was heard by Judge Macnamara in the County Court sitting in Wangaratta in November 2023. Judge Macnamara delivered judgment on 4 December 2023.[1] Most of Ms Hicks’s allegations as to Slaters’ alleged negligence were rejected. However, his Honour found that the use of reasonable care would not have led Slaters to engage Mr Dohrmann as an expert, given that he had previously been discredited by adverse judicial criticism. His Honour proceeded to assume, without deciding, that Slaters had breached its duty of care to Ms Hicks. Ms Hicks’s claim nonetheless failed, because his Honour found that Slaters’ engagement of Mr Dohrmann as an expert was protected by the principle of advocate’s immunity.
[1]Hicks v Slater & Gordon Ltd [2023] VCC 2223 (‘Negligence Judgment’).
By her proposed grounds of appeal, Ms Hicks seeks to challenge various findings made by Judge Macnamara, including the finding that advocate’s immunity protected Slaters in respect of its engagement of Mr Dohrmann. Ultimately, she contends that there should have been a judgment in her favour.
Slaters submits that each of Ms Hicks’s proposed grounds of appeal is without merit. It also submits that even if Ms Hicks could establish negligence on its part, she has not, and cannot, establish that she has sustained any loss as a result.
Before turning to the specific complaints made by Ms Hicks, it is necessary to set out the factual background in a little detail.

Ms Hicks’s work injury

Ms Hicks commenced work with FRD as a legal secretary in July 2008, at the firm’s office in Shepparton.
As part of her normal duties, Ms Hicks retrieved documents from a printer adjacent to her workstation. She estimated that she accessed the printer once every 10 minutes.
On 30 August 2010, Ms Hicks was carrying out her normal duties and, when stretching across to the printer and reaching for a printer job, she ‘felt a pain that [she had] never felt before in [her] lower back’. She continued to work for about an hour and then told Mr David Faram, a partner in the firm, that she could not continue to work and needed to go home.

The FRD claim

In October 2012, Ms Hicks retained Slaters to act for her in the FRD claim in respect of her back injury.
Slaters lodged a serious injury application on Ms Hicks’s behalf. On 12 March 2015, Judge Brookes granted leave to Ms Hicks to bring a proceeding for damages for pain and suffering and economic loss in respect of her back injury.
On 6 July 2015, Slaters commenced a proceeding on behalf of Ms Hicks in the County Court at Wodonga, seeking damages for non-economic and economic losses from FRD. Ms Hicks alleged that she suffered the following injuries as a result of the incident at FRD:
(a)Aggravation and/or exacerbation and/or production of lumbar disc degeneration, including central and diffuse bulging at L4–5 and L5–S1, with annular fissure and foraminal stenosis.
(b)Bilateral leg sciatica and/or radiculopathy.
(c)Referred pain affecting the legs.
(d)Injury to the muscles, ligaments and soft tissues of the lumbar spine.
(e)Depression and anxiety.
The claim was initially managed by Mr Tim Jackson of Slaters’ Wangaratta office.
The case was fixed for trial in the August sittings of the County Court at Wodonga. A mediation was held, which was unsuccessful.
On 28 June 2016, Mr Jackson instructed Mr Dohrmann to prepare an expert report, commenting on the nature and adequacy of the system of work in which Ms Hicks was engaged at the time of the injury, the setup of her desk and the location of the printer, and whether any steps were available to FRD to remove or minimise the risk of injury to Ms Hicks. He requested that Mr Dohrmann provide the report prior to 28 July 2016. Mr Dohrmann conferred with Ms Hicks on 25 July 2016 by telephone. He considered a black and white photograph showing Ms Hicks’s work area, and Ms Hicks’s comments on that photograph. He did not inspect her workstation.
Mr Dohrmann produced a report on 28 July 2016, in which he opined that the system of work in which Ms Hicks was engaged was unsafe. The basis for this conclusion was that it involved frequent and extended reaches to the computer that placed stress on Ms Hicks’s lumbar spine, as did her operation of a compactus unit. Mr Dohrmann recorded that the information he had obtained or assumed was, in his view, sufficient to justify the opinions given in his report, but a view might ‘ultimately be advisable, should the matter proceed to a hearing’.
On the same day, Slaters provided the report to Mr Craig Harrison QC, who had been engaged by Slaters to act as senior counsel on behalf of Ms Hicks.
The following day, Slaters served Mr Dohrmann’s report on FRD’s lawyers.
In early August 2016, Mr Grahame Ingleton commenced working at Slaters’ Wangaratta office and took over the conduct of Ms Hicks’s claim.
On 23 August 2016, the day on which the proceeding was listed for trial, Slaters served a ‘Plaintiff’s Witness List’ on FRD’s lawyers, which listed Mr Dohrmann as a witness.
Mr Harrison and Mr Neville Bird were engaged by Slaters to appear at the trial on behalf of Ms Hicks. They conferred with Ms Hicks and Mr Ingleton at court on the morning of the first day of the trial. This was the first occasion upon which any of these lawyers had met Ms Hicks.
The trial commenced before Judge Dyer and a jury of six. FRD was represented by Mr Paul Jens QC and Mr John Batten. The jury were empanelled that afternoon.
The trial ran between 23 and 31 August 2016. Ms Hicks; her husband, Mr Nigel Hicks; and her general practitioner, Dr Robert Brun gave evidence on Ms Hicks’s behalf. FRD called Ms Kellie Douglas, an employee of FRD; Mr Lesley Martin, the office manager of FRD at the time of Ms Hicks’s injury, and Mr Faram. Mr Dohrmann did not give evidence, and his report was not tendered. Mr Jens invited the jury to infer that Mr Dohrmann’s evidence would not have assisted Ms Hicks.
Three questions were posed for the jury. The first two related to the liability of FRD and the third related to damages. At the conclusion of the trial, the jury answered the first two questions as follows:
1. Was there negligence on the part of the defendant, Faram Ritchie Davies, which was a cause of injury, loss and damage to the plaintiff?
Answer: ‘No’.
2. Was there a breach of statutory duty on the part of the defendant, Faram Ritchie Davies, which was a cause of injury, loss and damage to the plaintiff?
Answer: ‘No’.
In light of those answers, the jury did not proceed to assess damages.
The Court entered judgment for FRD, and ordered Ms Hicks to pay FRD’s costs of the proceeding.

The professional negligence claim

On 11 November 2021, Ms Hicks commenced a proceeding against Slaters, alleging that it had been negligent in its preparation for and conduct of the trial of the proceeding against FRD. Ms Hicks has been unrepresented throughout the course of this claim.
On 23 February 2022, Slaters filed an application for summary dismissal of the claim pursuant to s 62 of the Civil Procedure Act 2010 (‘CPA’) and/or r 22.16 of the County Court Civil Procedure Rules 2018 (‘Rules’) on the basis that the claim had no real prospects of success, because the principle of advocate’s immunity offered a complete defence to the claim.
On 4 May 2022, Judge Carmody heard the summary dismissal application. On 13 May 2022, his Honour dismissed the application. His Honour ruled:
I find that the failure by Slater & Gordon Ltd to obtain an expert report on the issue of liability in a timely manner is not protected by advocate’s immunity. Slater & Gordon Ltd’s involvement in the preparation of the trial is not limited to the last months prior to the trial hearing. The expert, Mr Dohrmann, clearly indicated he required a view of the workplace if the matter proceeded to a hearing. A view was never organised by Slater & Gordon Ltd. Slater & Gordon Ltd were in a position to request a view for the expert prior to the completion of his report or, alternatively, to provide a supplementary report prior to the trial date. The plaintiff’s case against Slater & Gordon Ltd is not hopeless. It is in the interests of justice that the plaintiff be allowed to continue to litigate her claim against her former solicitors.[2]
[2][2022] VCC 627, [25] (‘Summary Judgment’).
On 4 October 2022, Ms Hicks filed an application for summary judgment pursuant to s 61 of the CPA and/or rr 22.03 and 23.02 of the Rules. The application was heard by Judge Tran on 10 November 2022 and dismissed.
On 31 October 2023, Judge Tran ordered that a document styled ‘Draft Second Further Amended Statement of Claim’ was to stand as Ms Hicks’s statement of claim in the proceeding. In broad terms, this document alleged that Slaters had breached its duty of care in its preparation for and conduct of the FRD claim by:
(a)failing to follow an instruction from Ms Hicks that any juror with the surname Harris should be rejected ‘[on the] basis of a possible conflict due to a past volatile encounter with a member of the Harris family in which [Ms Hicks’s] husband was physically attacked resulting in police intervention’;
(b)failing to seek an appropriate expert report in order to establish negligence on the part of FRD;
(c)failing to engage Mr Dohrmann until about two months prior to the commencement of the trial, with his report to be provided less than one month prior to the commencement of the trial; and
(d)failing to take action to address deficiencies in Mr Dohrmann’s report, in that Mr Dohrmann had failed to address Ms Hicks’s injury, had not conducted a site visit, and had been criticised as an expert witness in the previous case of Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd [No 8]. These deficiencies were said to have resulted in Mr Dohrmann not being called as a witness.[3]
[3][2014] VSC 567 (‘Hudspeth’).
In a defence filed in response to this document, Slaters denied any breach of duty. It said that it had obtained an expert report on liability; denied that Mr Dohrmann’s report was deficient in any respect; said that it intended, right up to trial, to call Mr Dohrmann as a witness; said that it reasonably relied on the advice of counsel in not calling Mr Dohrmann; and said that in any event, advocate’s immunity constituted a complete defence to Ms Hicks’s claims about the juror named Harris, the delay in engaging Mr Dohrmann, and the alleged failure to address deficiencies in Mr Dohrmann’s report.
On 1 November 2023, Slaters filed a document headed ‘Defendant’s Submissions on Advocate’s Immunity’, which concluded:
Slater & Gordon are immune from suit in respect of the action brought by Ms Hicks and her claim has no prospects of success. The Court should determine this issue before the trial in keeping with the efficient use of judicial and administrative resources and the timely determination of civil proceedings, especially as the trial of this proceeding will also take place in a busy circuit where the adjudication of other cases awaits the resolution of this one and the Court now has amended pleadings that clearly identify the alleged negligence and witness statements going to those allegations of negligence.[4]
[4]Footnotes omitted.
On 8 November 2023, the trial of the claim commenced in the County Court at Wangaratta before Judge Macnamara. Ms Hicks was unrepresented.
At the commencement of the trial, counsel for Slaters, without having issued a summons, sought to renew its application for summary dismissal of Ms Hicks’s claim, relying again on advocate’s immunity. Although the trial judge was attracted to the idea of hearing argument on, and deciding, the issue of advocate’s immunity before proceeding with the trial, his Honour was concerned that permitting Slaters to renew its summary dismissal application would constitute an abuse of process, and give rise to a risk of an inconsistent judgment with that of Judge Carmody. Thus, his Honour did not permit Slaters to renew its summary dismissal application, and the trial proceeded.
At trial, Ms Hicks relied upon affidavits she and Mr Hicks had each sworn in August 2023. Both were cross-examined. An affidavit sworn by Mr Dohrmann was also tendered.
Slaters called Mr Harrison, who swore an affidavit (which attached the trial transcript) and was cross-examined. Mr Ingleton swore three affidavits and was cross-examined. A statement made by Mr Bird was tendered, but he was unavailable for cross-examination owing to illness.

The trial judge’s reasons and decision

The trial judge, Judge Macnamara, delivered judgment on 4 December 2023. After setting out the background to the claim, including the summary dismissal application before Judge Carmody and the renewed application for summary dismissal at the commencement of the trial, his Honour summarised the evidence of the witnesses and documents that were tendered during the course of the trial.
The trial judge then reached the following conclusions:
(a)On the failure to exclude any juror with the name Harris, he concluded that Ms Hicks had not provided an instruction that no member of the Harris family was to be permitted on the jury. She had not given such an instruction privately to Mr Ingleton, nor in a joint conference with Mr Ingleton, Mr Harrison and Mr Bird.[5]
(b)On the engagement of and failure to call Mr Dohrmann, the trial judge concluded that the decision to not call Mr Dohrmann was one for counsel, and that Mr Harrison (who said that he made the decision after consultation with his junior and the solicitors) was the best source of information as to why that decision was made.[6] He also concluded that Slaters was not in breach of its duty in failing to ensure that Mr Dohrmann was called. However, the trial judge noted that the effect of Mr Harrison’s evidence appeared to be that if Slaters had exercised reasonable care, it would not have selected Mr Dohrmann, who had been discredited by adverse judicial criticism in Hudspeth.[7]
(c)The trial judge held, however, that Slaters’ conduct in respect of the juror named Harris, and in respect of the engagement of Mr Dohrmann, was protected by advocate’s immunity.[8]
(d)As an aside, the trial judge observed that the retainer of Mr Dohrmann was an example of Slaters making a decision as to the evidence which would or might be placed before the Court at trial, and that ‘[t]he retainer of Mr Dohrmann was not made as a result of any advice as to evidence given by counsel’.[9]
(e)Under the heading ‘Functus officio’, the trial judge concluded that Judge Carmody’s judgment did not determine the issue of advocate’s immunity finally in favour of Ms Hicks, whether by the operation of the doctrine of functus officio, res judicata or issue estoppel.[10]
(f)Under the heading ‘Damages’, the trial judge noted that the operation of advocate’s immunity meant that the process of assessing damages in a claim such as this was seldom, if ever, reached. His Honour determined not to enter upon the difficult issue of assessing damages in the event Ms Hicks’s claim had succeeded.[11]
[5]Negligence Judgment, [106].
[6]Ibid [115].
[7]Ibid [124]–[127].
[8]Ibid [147]–[148].
[9]Ibid [147].
[10]Ibid [154]–[158].
[11]Ibid [159]–[162].

The application for leave to appeal

By an application for leave to appeal filed on 17 January 2024, Ms Hicks advances three proposed grounds of appeal:
Ground 1 — renewed application for summary judgement [sic]
That His Honour Judge Macnamara erred in law in that:
a)he does not give reason[s] why he did not take into account point 25 of Judge Carmody[’s] ruling when deciding that advocate[’]s immunity was not final and was a point in question still to be argued;
b)the re-hearing of a renewed Summary Judgment Application was made irregularly;
c)is an abuse of process;
d)does not have the power to re-hear an appeal of a decision already made by the same court;
e)drew supposition when no evidence was given.
Ground 2 — Failure to consider Evidence in Chief and/or fill in gaps where no evidence existed
That His Honour Judge Macnamara erred at law in his ruling for the following reasons:
a)drew suppositions as to Mr Jackson’s making a decision when he was not a witness and not supported by evidence;
b)drew supposition as to Mr Jackson’s intentions when he was not a witness and not supported by evidence;
c)drew supposition [as] to Mr Ingleton’s intentions when there was no evidence to support such conclusion;
d)by failing [to] give reason[s] why evidence in chief excluded on the basis of His Honour’s own conclusion that was ‘contrary to logic and common experience’.
Ground 3 — Tainted Evidence/Perjury
His Honour Judge Macnamara erred at law by refusing an objection on contradictory evidence given by Mr Ingleton in respect of knowledge of the Hudsbeth [scil, Hudspeth] case.[12]
[12]Citations omitted.

Both parties filed submissions. The Court subsequently sought assistance from amici curiae as to the principle of advocate’s immunity, which resulted in further submissions from both parties.
To ensure that there was a common understanding of the issues Ms Hicks wished to agitate, at the commencement of the hearing of this application, the Court formulated the following six issues as arising for determination on this application:
(a)whether the trial judge erred in not treating Judge Carmody’s decision, specifically [25] of that decision, as a final determination of the issue of advocate’s immunity (proposed ground 1(a)).
(b)whether Slaters’ application to renew its summary dismissal application at the start of the trial was irregular or an abuse of process, or requested the Court to do something it had no power to do (proposed grounds 1(b), (c) and (d));
(c)whether the trial judge erred in describing, at [147] of his reasons, the retainer of Mr Dohrmann by Slaters as something that was not done as a result of any advice from counsel (proposed ground 1(e) and applicant’s written case [12(e)]);
(d)whether the trial judge erred by finding, at [119] of his reasons, that Mr Jackson and Mr Ingleton intended to call Mr Dohrmann at trial (proposed grounds 2(a), (b) and (c));
(e)whether the trial judge erred in finding that Ms Hicks must have been present at the jury empanelment and heard the jurors’ names read aloud (and therefore had not previously given instructions that a person named Harris should not be permitted to be on the jury) (proposed ground 2(d)); and
(f)whether the trial judge erred in his treatment of an ‘objection’ by Ms Hicks to evidence given by Mr Ingleton about why he had not sought an addendum report from Mr Dohrmann (proposed ground 3).
The parties agreed that these were the issues that arose for determination. That, however, leaves one issue outstanding. When we asked Ms Hicks whether, by her submissions, she also challenged the trial judge’s finding about the application of advocate’s immunity to her claim, Ms Hicks confirmed that she did. That is therefore the seventh issue. Counsel for Slaters indicated that he was in a position to address that issue.
We will address each issue in turn.

First issue: Did Judge Carmody finally determine that advocate’s immunity did not apply?

Judge Carmody’s decision on Ms Hicks’s summary judgment application

Judge Carmody commenced his judgment by recording that the application for summary dismissal was made pursuant to r 22.16 of the Rules and s 62 of the CPA.
Judge Carmody then set out the applicable legal principles on such an application. He identified that the test for summary dismissal under s 63 of the CPA is whether the claim has a ‘real’ as opposed to a ‘fanciful’ chance of success.[13]
[13]Summary Judgment, [6].
Judge Carmody recorded that the basis for the application was that the principle of advocate’s immunity answered Ms Hicks’s allegations of negligence, and referred to the discussion of that principle in the decision of the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd.[14]
[14]Ibid [7]–[8], quoting (2016) 259 CLR 1; [2016] HCA 16.
Judge Carmody then identified five bases of Ms Hicks’s negligence claim against Slaters. One of those bases was that Slaters had failed to obtain an expert report that ‘would form … evidence of negligence’ on the part of FRD. Another basis was that Slaters had failed to follow Ms Hicks’s instructions that no juror with the surname of Harris was to be selected on the jury.[15]
[15]Summary Judgment, [10].
As to the first of those bases, Judge Carmody observed that although the FRD claim had been issued in July 2015, Slaters had not requested an expert report from Mr Dohrmann until within a month of the trial commencing.[16] He said that negligence had always been an issue in the FRD claim and yet, the respondent had ‘left it to “the eleventh hour” to obtain any evidence to prove liability’. Slaters had also not arranged for Mr Dohrmann to inspect the applicant’s workstation, which Mr Dohrmann had informed Slaters would be ‘advisable, should the matter proceed to a hearing’.[17]
[16]In fact, Slaters had requested an expert report from Mr Dohrmann about two months prior to the trial commencing: see [16] above.
[17]Summary Judgment, [17]–[20].
Judge Carmody continued:
20.The fact that counsel decided not to call Mr Dohrmann in the circumstances presented to counsel may be justified, but the failure by Slater & Gordon Ltd to instruct and arrange a view by the expert at a much earlier time is not the subject of advocate’s immunity.
21.The distinction between solicitor and advocate is due to the role of the solicitor in the coordinating and assembling of the relevant evidence in a timely manner so that the plaintiff’s claim can be fully and properly litigated. On this basis alone, I find that the plaintiff’s claim against Slater & Gordon Ltd is not hopeless, and hence should be allowed to continue or proceed. Further, it is in the interests of justice that the plaintiff be allowed to continue with her claim against Slater & Gordon Ltd.
…
Analysis
25.I find that the failure by Slater & Gordon Ltd to obtain an expert report on the issue of liability in a timely manner is not protected by advocate’s immunity. Slater & Gordon Ltd’s involvement in the preparation of the trial is not limited to the last month prior to the trial hearing. The expert, Mr Dohrmann, clearly indicated he required a view of the workplace if the matter proceeded to a hearing. A view was never organised by Slater & Gordon Ltd. Slater & Gordon Ltd were in a position to request a view for the expert prior to the completion of this report or, alternatively, to provide a supplementary report prior to the trial date. The plaintiff’s case against Slater & Gordon Ltd is not hopeless. It is in the interests of justice that the plaintiff be allowed to continue to litigate her claim against her former solicitors.
As to the second of the identified bases of the negligence claim, concerning Ms Hicks’s instructions that no juror with the surname of Harris was to be selected on the jury, Judge Carmody said:
24.The plaintiff stated that she gave direct instructions to Mr Ingleton, solicitor for Slater & Gordon Ltd at the trial, and counsel in conference before the empanelment of a jury, that no “Harris” was to be on the jury. The background was a dispute between her husband and a member of the Harris family in the Wodonga area. The plaintiff says she became aware a Ms Harris was a member of the jury after the verdict was given in Court. I do not know how Ms Hicks became aware a member of the jury had the family name of Harris. The factual basis for this complaint as a particular of negligence by Slater & Gordon is unknown. Ms Hicks could not really state in Court or on affidavit the basis for her allegation about the jury selection.

Judge Tran’s decision on Ms Hicks’s summary judgment application

Ms Hicks, as mentioned earlier, then sought summary judgment, in effect to strike out the advocate’s immunity defence. Judge Tran ruled:
In relation to that first question of whether the defendant [Slaters] is entitled to run the advocate’s immunity defence, I am of the view that Judge Carmody’s decision to dismiss the application for summary judgment was interlocutory and does not create a res judicata.
And I think in circumstances where the question that was actually before Judge Carmody was whether the plaintiff’s case had a real prospect of success, rather than whether or not the plaintiff or the defendant ought to be ultimately successful at trial, and in circumstances where the decision was made necessarily on just the affidavit material that was before Judge Carmody, rather than all of the evidence that was available at trial, it is not appropriate for me to grant summary judgment today, on that advocate’s immunity defence.
I think it would, Ms Hicks, open my decision up to appeal by the defendant today if I was to completely rule the defendant out from running that defence, and I do not think that is in anybody’s interests because it will delay the ultimate hearing of the trial.
…
So I am going to dismiss that part of your application that sought summary judgment, with respect to the advocate’s immunity defence.

Judge Macnamara’s decision at trial

Ms Hicks submitted that by the time of the trial, the advocate’s immunity issue had already been determined in her favour by Judge Carmody, at least in relation to the issues concerning Mr Dohrmann. She submitted that the language used by Judge Carmody at [25] of his decision was significant, in that he had not concluded that it was ‘arguable’ that advocate’s immunity did not apply, but had expressed a definite view that it did not apply.[18]
[18]Negligence Judgment, [149]–[150].
The trial judge rejected this submission, finding that Judge Carmody had only been tasked with determining whether Ms Hicks had an arguable case. The better view of Judge Carmody’s determination was therefore that he was not seeking to express a definitive conclusion on the issue.[19]
[19]Ibid [150]–[152].
The trial judge also rejected Ms Hicks’s submission that the Court should, in light of Judge Carmody’s decision, be regarded as functus officio. The trial judge noted that ‘in disposing of [Slaters’] application before him, Judge Carmody gave directions aimed at progressing the proceeding to trial’. This, the trial judge said, was ‘the antithesis of a determination that would bring the matter to an end and lead to a situation where the court’s authority was spent’. The very nature of Judge Carmody’s determination meant that it could not have been final, because it was ‘a refusal to bring to an end the plaintiff’s case’. Therefore, neither the doctrine of functus officio, nor the doctrines of res judicata or issue estoppel applied.[20]

Analysis

[20]Ibid [153]–[156].

The submissions of Ms Hicks in this Court were much the same as the submissions she made to the trial judge. Ms Hicks again relied on [25] of Judge Carmody’s decision, and submitted that Judge Carmody’s decision was final and determinative.
There was no error in the trial judge’s finding that Judge Carmody’s judgment was not a final determination of the issue of whether Slaters’ engagement of Mr Dohrmann was protected by advocate’s immunity.
Whether an issue has been finally determined by a judgment depends on whether the determination of that issue was a necessary legal foundation or justification for the judgment.[21] Here, the judgment was the dismissal of Slaters’ summary dismissal application. In giving that judgment, it was not necessary for Judge Carmody to determine that Slaters’ engagement of Mr Dohrmann was protected by advocate’s immunity. It was only necessary to determine that Ms Hicks had a real and not fanciful chance of persuading a trial judge that advocate’s immunity did not apply, which is what his Honour did. Rather than determining the issue of advocate’s immunity finally, his Honour determined that Ms Hicks was entitled to a final determination of the issue.
[21]Blair v Curran (1939) 62 CLR 464, 531–3 (Dixon J); Kuligowski v Metrobus (2004) 220 CLR 363, 379 [40] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); [2004] HCA 34.
We accept that some of the language in Judge Carmody’s judgment may have conveyed to Ms Hicks that his Honour had made a final determination. However, we also accept Slaters’ submission that by the time of the trial, Ms Hicks could not have been labouring under such a misapprehension. Prior to the trial, and the hearing of Ms Hicks’s summary judgment application, Judge Tran had provided the parties with a statement of issues, which raised the issue of advocate’s immunity. Slaters then filed submissions, pursuant to orders made by Judge Tran, on the issue of advocate’s immunity. During the hearing of the summary judgment application, Judge Tran put to Ms Hicks that the earlier dismissal of Slaters’ summary judgment application was not a final determination. And this was how her Honour ultimately ruled.
In the result, the doctrine of functus officio does not assist Ms Hicks. The authority of the Court to determine whether advocate’s immunity applied to Slaters’ conduct was not spent. Nor does the doctrine of res judicata or issue estoppel.
For these reasons, proposed ground 1(a) does not succeed.

Second issue: Renewal of the summary dismissal application by Slaters’ counsel at the start of the trial

At the commencement of the trial, counsel for Slaters submitted that, before evidence commenced, he should be permitted to contend that the applicant’s claim was covered by advocate’s immunity, and therefore could not succeed. Counsel confirmed that the application he was seeking to make constituted a second summary dismissal application. After discussion with counsel and Ms Hicks, the trial judge expressed concern that the proposed application would be an abuse of process, and give rise to a risk of inconsistent judgments, because it would involve re-litigation of an issue that Judge Carmody had already determined — namely, whether Ms Hicks’s claim had no real prospects of success due to the principle of advocate’s immunity. For these reasons, his Honour declined to hear the second summary dismissal application.
Ms Hicks now contends that, by seeking to have her claim summarily dismissed at the commencement of the trial, Slaters engaged in conduct that was irregular, constituted an abuse of process, and involved asking the Court to do something that it had no power to do.
The fundamental difficulty with this contention is that the trial judge did not permit Slaters to renew its summary dismissal application at the commencement of the trial. The matter proceeded to trial ‘in the orthodox manner’.[22]
[22]Negligence Judgment, [68].
Accordingly, the question of whether Slaters’ conduct was protected by advocate’s immunity was not determined in any preliminary or summary process. Rather, it was determined as part of the trial.
For these reasons, proposed grounds 1(b), (c) and (d) do not succeed.

Third issue: Did the trial judge err in describing the retainer of Mr Dohrmann as conduct of Slaters that was not done as a result of advice from counsel?

The third issue concerns a passage in the part of the trial judge’s reasons in which his Honour was considering the parameters of the principle of advocate’s immunity.[23] His Honour surveyed a series of cases in which the principle of advocate’s immunity arose in the context of conduct of counsel (or the joint conduct of counsel and solicitors). The trial judge then observed that ‘interestingly’, the retention of Mr Dohrmann as an expert witness was an example of Slaters itself making a decision as to the evidence which would, or might, be adduced in the trial; and that ‘[t]he retainer of Mr Dohrmann was not made as a result of any advice as to evidence given by counsel’.[24]
[23]Ibid [132]–[148].
[24]Ibid [147].
Ms Hicks submits that the trial judge erred in describing the retainer of Mr Dohrmann as ‘not made as a result of any advice as to evidence given by counsel’. She argues that there was no evidence about who made the decision to retain Mr Dohrmann, and thus, the trial judge’s statement concerning that matter was no more than supposition.
In response, Slaters submits that at trial, the question of whether counsel was involved in the decision to brief Mr Dohrmann was not in issue. Ms Hicks did not plead that counsel was involved in that decision. Accordingly, there was no occasion for evidence to be adduced in relation to that topic. Further, Slaters submits that Ms Hicks’s complaint is a new point; and if the point had been made at trial, Slaters could have shown, and the trial judge may have found, that because counsel had advised Slaters to engage Mr Dohrmann, Slaters’ engagement of Mr Dohrmann was reasonable.
There are three responses to Ms Hicks’s submission.
First, it is far from clear that had the trial judge reached the opposite conclusion — that Slaters made the decision to engage Mr Dohrmann on the basis of advice from counsel — his conclusion on the issue of advocate’s immunity would have been any different. In particular, in the section of the reasons that preceded the passage in question, the trial judge expressed the view that Slaters’ retainer of Mr Dohrmann came within the scope of advocate’s immunity.
Secondly, Ms Hicks did not plead that counsel were involved in the decision to engage Mr Dohrmann. We accept that had the point been raised at trial, Slaters would have had the opportunity to show that its engagement of Mr Dohrmann was therefore reasonable, and the trial judge may have accepted this to be the case.
Thirdly, and in any event, a review of the evidence supports the trial judge’s observation that counsel was not involved in of the decision to retain Mr Dohrmann as an expert.
In his affidavit, Mr Harrison described the circumstances in which he received the trial brief in the matter. He recalled that ‘in or around July 2015’, he was advised by Mr Jackson that he was in the process of obtaining an expert report from Mr Dohrmann. It is implicit from Mr Harrison’s affidavit that he was not involved in the selection of Mr Dohrmann as the expert in the case.
Mr Bird, in his statement, was more explicit about the matter. He stated that he recalled that, prior to his involvement in the matter, Slaters had obtained an expert report from Mr Dohrmann.
Based on that evidence, the applicant has not demonstrated any appellable error in the trial judge’s observation that Slaters itself made the decision to retain Mr Dohrmann.
For these reasons, proposed ground 1(e) does not succeed.

Fourth issue: Did the trial judge err in finding that Mr Jackson and Mr Ingleton intended to call Mr Dohrmann at trial?

By the fourth issue, Ms Hicks challenges the following observation of the trial judge:
It is not evident to me why the lack of a site visit in itself should have been fatal to the strategy of calling Mr Dohrmann was [scil, as] a witness, as it would seem that Mr Jackson and Mr Ingleton intended to do prior to the decision made by counsel.[25]
[25]Ibid [119] (emphasis added).
This observation was followed by the trial judge’s conclusion that the fact that Mr Dohrmann had not conducted a site visit was immaterial to the decision not to call him as a witness.[26] That conclusion foreclosed one of Ms Hicks’s pleaded claims, that Slaters’ failure to arrange a site visit was a reason why Mr Dohrmann was not called as a witness.[27]
[26]Ibid [120].
[27]See [32(d)] above.
Ms Hicks submitted that the trial judge’s observation about the apparent intention of Mr Jackson and Mr Ingleton was wrong. She emphasised that Mr Jackson was not called to give evidence. She pointed to Mr Ingleton’s evidence that he was happy to leave the decision about whether Mr Dohrmann would be called to counsel, which was said to demonstrate that he had no intention that Mr Dohrmann be called.
We reject that submission. The evidence bore out the trial judge’s observation about Mr Ingleton and Mr Jackson’s intentions. Mr Ingleton, in an affidavit he swore on 20 July 2023, deposed that until Mr Harrison and Mr Bird decided that Mr Dohrmann would not be called as a witness, he had ‘intended that Mr Dohrmann would be called as a witness at the trial and the Dohrmann Report would be relied on by the plaintiff’. That accords with common sense. As counsel for Slaters submitted to this Court:
The act of commissioning a report, serving and exchanging that report — there is no reason to serve a report but for the purpose of it enabling you to call a person as a witness. And the inclusion of the name of that person on the witness list is all consistent with an intention … to call Mr Dohrmann as a witness.

Although Mr Jackson was not called at trial, the observations made by counsel for Slaters apply with similar force to him. In the weeks prior to the commencement of the trial, the case was still transitioning from being under Mr Jackson’s control to Mr Ingleton’s, Mr Ingleton only having started work at Slaters’ Wangaratta office in August 2016, the month in which the trial was conducted. In all of these circumstances, there was no error in the judge’s observation that it appeared Mr Jackson, too, had intended to call Mr Dohrmann as a witness.
In any event, it is not evident that the intention of Mr Ingleton and Mr Jackson ultimately had much bearing on the question as to why Mr Dohrmann was not called as a witness. There was other direct evidence about why Mr Dohrmann was not called. The evidence was that the decision not to call Mr Dohrmann was made by counsel with the conduct of the trial, Mr Harrison. On Mr Harrison’s evidence, there were two reasons why he decided not to call Mr Dohrmann, neither of which was the lack of a site visit. First, Mr Dohrmann’s report did not address the circumstances in which Ms Hicks had sustained her injury. Secondly, if called, Mr Dohrmann would have been cross-examined on the adverse findings made about him in the Hudspeth case. Given this evidence, the question as to what Mr Ingleton or Mr Jackson had intended about whether Mr Dohrmann would be called was ultimately of little moment.
For these reasons, proposed grounds 2(a), (b) and (c) do not succeed.

Fifth issue: Did the trial judge err in his findings in relation to the empanelment of a juror named Harris?

The fifth issue concerns the trial judge’s factual findings in relation to Ms Hicks’s claim that Slaters was negligent in failing to ensure that no person with the surname of Harris was empanelled on the jury.

The trial judge’s reasons

The trial judge concluded that it was ‘certain’ that Ms Hicks did hear the names of the jurors read out in court at some point. This was because Ms Hicks had told Judge Carmody during the summary dismissal hearing that she had learned that Ms Harris was on the jury at the conclusion of the trial when the names of the jurors were ‘articulated’ in court.[28]
[28]Negligence Judgment, [90].
The trial judge rejected Ms Hicks’s account that she heard the names read out at the conclusion of the trial as implausible. There is no procedure for the naming of jurors once their verdict has been announced, and there would be no purpose in reading out their names at that stage of the trial. The trial judge concluded that Ms Hicks must have heard the names of the jurors being read out during the empanelment process. This was because, on her own account, she had heard the name of the juror Harris read out in court; she was present at the commencement of her case, a case which was ‘vital for her economic wellbeing for the rest of her life’; and she had no distinct recollection of leaving court during the empanelment process, nor any explanation for why she would have done so. In these circumstances, the findings of fact she sought were ‘contrary to logic and common experience’.[29]
[29]Ibid [96]–[97], [103]–[105].
Based on these conclusions, the trial judge also concluded that Ms Harris did not provide instructions to exclude any member of the Harris family from the jury.[30] The trial judge said he was fortified in that conclusion by Mr Hicks’s failure to raise any issue about the composition of the jury in a lengthy email of complaint she sent to Slaters on 1 September 2016. His Honour noted that the first time Ms Hicks complained to Slaters about the issue was in a letter she wrote dated 6 November 2019, some three years after the trial.[31]

Analysis

[30]Ibid [106].

[31]Ibid [53], [107].

Ms Hicks submitted that the evidence established that before the empanelment of the jury, she had instructed Mr Ingleton to exclude from the jury any person with the surname of Harris. It did not establish that she was present when the names of jurors were read out during the empanelment process. The evidence also established that she had complained to Slaters about the empanelment of the juror named Harris at the conclusion of the hearing.
In support of these submissions, Ms Hicks referred to her evidence that she was not present when the names of the members of the panel were read out at the commencement of the trial. She emphasised that Mr Ingleton had no recollection of being present during the empanelment process, and that Mr Harrison was unable to say for certain if she was present at the point during the empanelment process when the names of the members of the panel were read out.
Ms Hicks also referred to Mr Ingleton’s evidence that he recalled some discussion about jury empanelment before the commencement of trial, although he had no recollection of the content of the discussion and was therefore unable to deny that Ms Hicks had instructed him to exclude from the jury any person by the name of Harris. Mr Harrison had some recollection of Ms Hicks raising an issue about the juror named Harris after the conclusion of the trial.
Thus, Ms Hicks submitted that the trial judge erred in his factual findings.
In response, Slaters submitted that the evidence supported the trial judge’s findings that Ms Hicks was present, and would have heard the name of the jurors when they were read out during the empanelment process; and that Ms Hicks had not given instructions on the first day of the trial to exclude anyone with the surname Harris from the jury.
Slaters submitted that Ms Hicks had given inconsistent and implausible accounts about the identity of the person to whom she gave instructions to exclude any person named Harris from the jury, as well as the time at which the instructions were given. She could not explain why she was not in court when the jurors’ names were read out during the empanelment process. On the other hand, Mr Harrison had given evidence that he was almost certain that Ms Hicks had been present in court during the jury empanelment process when the names of the jurors were read out. Neither Mr Ingleton nor Mr Harrison had a recollection of Ms Hicks saying that she did not want a person with the surname of Harris on the jury.
The question for this Court is whether the trial judge was correct to conclude that Ms Hicks must have heard the names of the jury panel called during the empanelment process, and that she therefore had not instructed Slaters to exclude any juror with the surname Harris. In answering that question, this Court should make appropriate allowance for the advantages of the trial judge, in particular in seeing and hearing the witnesses give evidence in the proceeding, and in thereby evaluating their credibility and reliability.[32]
[32]Fox v Percy (2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
We commence with the trial judge’s finding that Ms Hicks was present during the empanelment process, during which the names of the members of the jury panel were read aloud in court.
The evidence of Mr Harrison and Mr Bird described the process by which juries were empanelled in civil proceedings in this State at the time of the trial.
In short, after the panel entered the court room, the judge ordinarily gave the panel a short description of the nature of the case, and informed the panel of the names of the litigants, the names of potential witnesses, and the names of the legal practitioners. The judge’s associate then read aloud the names or numbers of each member of the panel. At that point, the panel member would either respond that they were present or that they wished to be excused.
When the process of hearing excuses was complete, the judge’s associate would draw the names of the 12 panel members from a box containing the cards of all the members of the juror panel. The names or numbers of the jurors were then read aloud. Ordinarily the panel member in question was asked to stand, to give the parties the opportunity to observe them for the purpose of determining whether they ought to be challenged.
After the representatives of both parties had each struck out three names from the list, the names or numbers of the six remaining persons — who constituted the jury — would be called out in sequence and they were instructed to enter the jury box.
Although the evidence of Mr Harrison and Mr Bird was that jurors’ names were not always read out — and sometimes, only their numbers would be read out — it is clear from Mr Harrison’s notes of the empanelment process, in which he had written down the names and occupation of each potential juror, that this was not a case where the jurors’ numbers were read out.
In her 15 May 2023 affidavit, Ms Hicks stated that during the time she was present for the jury selection, the only time she could recall potential jurors’ names being mentioned throughout that process was when people identified themselves and asked to be excused. She said that a Mr Donnelly, who had been employed by Ms Hicks and her husband, was excused. She said that she did not recognise Ms Harris, nor was she given the names of the final jury members at the time of the empanelment.
That evidence was, in effect, confirmed by Ms Hicks in her 25 August 2023 affidavit. In that affidavit she stated that at the beginning of the hearing the potential jurors entered the room, and at that point she was seated behind counsel. She said that she was not told the names of the jury panel. She said that the trial judge asked for reasons why any person should be excused and there were a number of people who sought to be excused.
Thus, the two affidavits in which Ms Hicks referred to the empanelment of the jury make clear that she was in court when the names of the jury panel were read aloud. In neither affidavit did she say that she was absent during the empanelment process at any stage.
In cross-examination, Ms Hicks confirmed that she was in court at the beginning of the empanelment process, and said she recalled that she was asked to stand up so that everyone in the court could have a ‘good look’ at her. We interpolate that such a process is quite common, and is ordinarily undertaken before the names of the jury panel are called, so that any person on the panel who might recognise the plaintiff would have an opportunity to seek to be excused.
Ms Hicks said that there then followed the process by which members of the panel sought to be excused from serving on the jury. Again, we note that, by that stage, the names of the panel members would have been read aloud. It was at that point in cross-examination that Ms Hicks then said that, for some reason, she left the court during the empanelment of the jury. When pressed about whether she had in fact stayed and watched the process to the end, she said ‘It is possible, yes, but I actually say that I wasn’t’. She agreed that she had made no reference to not being present in court for the entirety of the jury empanelment in her 15 May 2023 affidavit.
The evidence of both Mr Bird and Mr Ingleton was that they had no recollection of the jury empanelment in Ms Hicks’s trial. Mr Ingleton said that he may not have been in court during the empanelment process.
Similarly, Mr Hicks’s evidence was that he was not present on the first day of the trial, when the jury were empanelled. Accordingly, his evidence was of no assistance on the resolution of this factual issue.
Mr Harrison, however, had a recollection of the empanelment process. In his affidavit, Mr Harrison said that he recalled that Ms Hicks was present in court during the course of the jury empanelment and that she sat behind Mr Bird and himself. We interpolate that this is almost invariably the practice that occurs during the empanelment process. When pressed about that matter in cross-examination, Mr Harrison said that he could not imagine why Ms Hicks would not have been in court for the selection of the jury. He had a recollection of Ms Hicks sitting behind him and added ‘but if [she] nicked out for a minute or something to do something or other, I wouldn’t necessarily know’. Mr Harrison said he was ‘pretty close to’ certain that Ms Hicks was present in the court room when the names of the 12 persons who had been selected as potential jurors were read out by the judge’s associate. Mr Harrison’s recollection was that Ms Hicks did not raise any objection about any potential juror with him.
The evidence of Mr Harrison thus confirms the evidence of Ms Hicks that she was present when the names of the jury panel were called, and jury members were asked whether they wished to excuse themselves. The evidence of Mr Harrison further supports the conclusion that Ms Hicks did not leave the court during the empanelment, a possibility that emerged for the first time during Ms Hicks’s oral evidence. We consider that it is highly improbable that Ms Hicks was not present throughout the whole of the empanelment process. She provided no reason why should would have left part way through the process. It was a process that would result in the selection of the six people who were to determine her case, and thus her entitlement to receive damages for her alleged workplace injury.
In these circumstances, there was no error in the trial judge’s finding that Ms Hicks was present during the empanelment process, during which the names of the members of the jury panel were read aloud in court.
Relatedly, there was no error in the trial judge’s rejection of Ms Hicks’s account that she only learnt that a person with the surname of Harris had been empanelled on the jury when the trial concluded.
This point was fundamental to Ms Hicks establishing that Slaters had breached her instructions by permitting a person by the name of Harris to be empanelled on the jury. In order to sustain that part of her case, it was necessary for Ms Hicks to establish that she did not know that a person with the surname Harris had been empanelled on the jury until after the verdict.
In her 28 March 2022 affidavit, Ms Hicks said that it only came to her attention ‘at the conclusion of the proceeding’ that a person named Ms Harris was one of the jury members. In her 15 May 2023 affidavit, she said that she first learned that Ms Harris was on the jury in the course of a heated conversation with Mr Ingleton after the conclusion of the hearing.
In cross-examination, Ms Hicks gave inconsistent evidence about how and when she first learned that a person with the surname Harris had been empanelled on the jury. She initially said that Mr Ingleton had told her. Counsel for the respondent then put to Ms Hicks the transcript of the hearing before Judge Carmody on 4 May 2022, when she had asserted that she first learned that Harris had been empanelled on the jury when the names of the jurors were ‘articulated’ at the conclusion of the hearing. In response, Ms Hicks said that after the conclusion of the case, the names of the jurors were read out in court. When further pressed on that matter, she said that it was her recollection that after the verdict, the judge did a roll call of the names of the jury. In that respect, she said that she was reliant on her memory which was affected by medication.
Ms Hicks’s evidence on this point was therefore internally inconsistent. It was also inconsistent with the evidence of Mr Ingleton. Mr Ingleton said that he did not believe that he told Ms Harris at the conclusion of the trial that there was a person with the surname Harris on the jury, because his recollection was that he did not know that a person with this name had been selected.
Above all, it is highly improbable that in any trial, the names of the jurors would be read aloud in court at the conclusion of the trial. There would be no reason for that procedure to take place. It would be extraordinary, and indeed improper. Ms Hicks did not suggest to Mr Harrison, or Mr Ingleton, in cross-examination that this unusual process was undertaken. The trial judge was correct to reject Ms Hicks’s evidence to the contrary.
Finally, we turn to the trial judge’s finding that Ms Hicks did not provide instructions prior to the empanelment of the jury that any person with the surname Harris should be excluded from the jury.
Ms Hicks’s evidence about the circumstances in which she gave these instructions was also internally inconsistent, as well as contrary to the evidence given by Mr Ingleton and Mr Harrison.
In her 28 March 2022 affidavit, Ms Hicks stated that, when Mr Harrison and Mr Ingleton arrived at court on the morning of 23 August 2016, she informed them that there had been a previous incident involving a member of the Harris family in which her husband had been assaulted, and that anybody with the surname Harris should therefore be excluded from the jury. In her 15 May 2023 and 25 August 2023 affidavits, Ms Hicks said that she had in fact provided the instructions in a private meeting with Mr Ingleton on 23 August 2016.
In cross-examination, Ms Hicks confirmed the latter account, namely that she had given the instruction in a private meeting with Mr Ingleton. She said that she was ‘adamant’ that she had not given the instruction in a joint conference with counsel and Mr Ingleton. Ms Hicks was then referred to the transcript of the proceeding before Judge Carmody, in which she said that counsel and Mr Ingleton were all present when she instructed anyone with the name Harris to be excluded from the jury. Ms Hicks also agreed that in her 28 March 2022 affidavit she had made no mention of any private meeting with Mr Ingleton concerning that matter. When pressed about the contradictions in her account, Ms Hicks said that there were ‘a lot of emotional feelings going through’ when she swore that affidavit and that she did not have the opportunity to look at her records.
By contrast, Mr Ingleton, in his affidavit, deposed that he had no recollection of Ms Hicks saying that she did not want a juror with the name Harris on the jury. In cross-examination, he said that if he had been given such an instruction he would have passed it on to counsel.
Mr Harrison stated that he had no recollection of being informed by anyone, including Ms Hicks, that she did not want a juror with the surname Harris on the jury. He said he had a ‘vague recollection’ of Ms Hicks raising an issue, after the trial concluded, about a juror with the surname of Harris being on the jury.
As the trial judge noted, Ms Hicks sent a detailed email to Mr Ingleton after the trial, raising a number of concerns about the conduct of the hearing. The concerns related, amongst other matters, to her legal representation, to the judge, and to the evidence in the case. Significantly, the email contained no reference to the fact that a person with the surname of Harris had been empanelled on the jury. It is inherently improbable that had Ms Hicks provided the alleged instructions and they had not been followed, she would have made no mention of this in her lengthy email of complaint.
For these reasons there was no error in the trial judge’s finding that Ms Hicks provided no instruction to Mr Ingleton privately, or to her legal representatives in a joint conference, that any person with the surname Harris was not permitted to be on the jury.
Accordingly, proposed ground 2(d) does not succeed.

Sixth issue: Did the trial judge err in engaging in a discussion with counsel about the evidence while Mr Ingleton was giving evidence?

The sixth issue concerns an exchange between the trial judge and Slaters’ counsel during Ms Hicks’s cross-examination of Mr Ingleton. Ms Hicks submits that the trial judge erred in his treatment of her ‘objection’ to this exchange.
In his 26 April 2023 affidavit, Mr Ingleton stated that Slaters had obtained an expert report from Mr Dohrmann before he became involved in the matter. He first met Mr Harrison and Mr Bird on the day the trial commenced. Mr Ingleton could recall Mr Harrison and Mr Bird having a discussion, and coming to the conclusion that there was no value in calling Mr Dohrmann as a witness in the trial.

In his 20 July 2023 affidavit, Mr Ingleton deposed that he had not been aware of the Hudspeth case at the time of reading Mr Dohrmann’s report, nor at any stage in the lead up to the trial. He also said that at no stage before the trial had he considered there were any deficiencies in Mr Dohrmann’s report that would prevent it being relied on at the trial. As we have noted above in addressing the fourth issue, Mr Ingleton said that until Mr Harrison and Mr Bird decided that Mr Dohrmann would not be called as a witness, he had intended that Mr Dohrmann would give evidence in the trial.
In cross-examination, Mr Ingleton said that he could not recall whether he contacted Mr Harrison before the trial about the contents of the report. Ms Hicks suggested to Mr Ingleton that there was a concern that the report was ‘underwhelming’. He said this was ‘probably true’. Ms Hicks then asked Mr Ingleton whether he had the opportunity ‘to correct the report so it wasn’t underwhelming’.
At that point, counsel for Slaters objected, on the basis that the idea of correcting an expert report was a difficult concept to understand. He suggested that Ms Hicks could clarify what she meant by ‘correct’ the report. There then ensued a discussion between counsel and the trial judge, in the presence of Mr Ingleton, in which the trial judge noted that Mr Harrison had given evidence that if an expert was require to produce the draft of their report and there was a material difference between the draft report and the final report, that can be ‘a pretty devastating hit’ for a defendant. The trial judge observed that the essence of the criticism that had been made of Mr Dohrmann in the Hudspeth case was that he had ‘done that very thing’. The trial judge and counsel for Slaters then referred to the evidence that had been given by Mr Harrison as to a distinction between, on the one hand, changing the text of a draft report, and on the other hand, adding an addendum.
The trial judge then asked Ms Hicks what she meant by ‘correcting the report’. Ms Hicks responded that she would change her question. She asked Mr Ingleton whether he had the opportunity to approach Mr Dohrmann to submit an addendum report. Mr Ingleton responded that he would have had the opportunity, but that he did not do so, and this would have been a ‘wisdom call … for the reasons that have just been aired, that these things sometimes make things worse by drawing attention to changes you want to make’.
The trial judge then intervened, and put to Mr Ingleton that if Mr Dohrmann created an addendum report, defence counsel could have cross-examined Mr Dohrmann on the basis that he had only made the addendum because Ms Hicks’s solicitors ‘have prodded you to go further than you were initially prepared to go’. Mr Ingleton agreed with this proposition.
At that point, Ms Hicks made an understandable observation (or ‘objection’):
I’m sort of feeling a little bit frustrated at the moment because [counsel for Slaters] has virtually given an answer to Mr Ingleton as to the reasons why he wouldn’t have got an addendum report.
In response, the trial judge said that negligence was concerned with objective standards, not the opinion of individuals such as Mr Ingleton. Nonetheless, ‘for the sake of completeness’, and noting that Mr Ingleton’s answer might be ‘lacking in credibility’, the trial judge proceeded to ask Mr Ingleton whether he would have had a different opinion (presumably about the difficulties that might have arisen if he sought an addendum to Mr Dohrmann’s report) had he not heard the discussion between himself and Slaters’ counsel. Mr Ingleton said he would not have. The judge said he was ‘astonished’ by that answer, ‘but that’s about all that I can do at this point’.
It was unfortunate that the discussion between Slaters’ counsel and the trial judge about the evidence of Mr Harrison, and about the difficulties that could generally arise from seeking an addendum to an expert report, proceeded in the presence of the witness. The appropriate procedure, particularly given that Ms Hicks was unrepresented, would have been for Slaters’ counsel to ask for the witness to be permitted to leave the court while he and the trial judge discussed his objection to Ms Hicks’s question.
That this should have been done is demonstrated by the response that Mr Ingleton then gave to the question asked of him by Ms Hicks — that he would have had the opportunity to approach Mr Dohrmann to submit an addendum to the report, but did not do so ‘for the reasons that have just been aired’.
In the end, however, we do not think that this situation caused Ms Hicks any material disadvantage in her case. Immediately after Mr Ingleton’s answer that he would not have held a different opinion had he not heard the exchange between the judge and counsel, Mr Ingleton conceded that he could not remember why he did not seek an addendum to Mr Dohrmann’s report. Effectively, that concession was a disavowal of his previous answer as to why he had not sought an addendum, in which he had relied on the concerns that Mr Harrison had expressed.
In any event, it is clear from the judge’s remark to Ms Hicks that negligence was concerned with ‘objective standards’, that his Honour considered Mr Ingleton’s evidence about why he had not sought an addendum to Mr Dohrmann’s report to be of little or no assistance. In finding that Slaters did not breach its duty of care to Ms Hicks in ‘not doing something’ about Mr Dohrmann’s report (such as by seeking an addendum), the judge relied on Mr Harrison’s evidence that more often than not, it was unnecessary to rely on an expert report to win a negligence case, and that attempting to remedy a deficient report (for example, by ‘ask[ing] further questions’ of the expert) could be counterproductive.[33]
[33]Negligence Judgment, [121]–[126].
For these reasons, proposed ground 3 does not succeed.

Seventh issue: Did the trial judge err in finding that advocate’s immunity applied to Slaters’ engagement of Mr Dohrmann?

It is not necessary to determine whether the trial judge was correct in finding that advocate’s immunity applied to Slaters’ engagement of Mr Dohrmann as an expert. That is because Ms Hicks’s claim in respect of the engagement of Mr Dohrmann was bound to fail in any event, for the reasons we explain below. However, in deference to the arguments advanced, we will provide some background to the issue of advocate’s immunity.

Advocate’s immunity

As we have explained above, the trial judge found that had Slaters taken reasonable care, it would not have engaged Mr Dohrmann, given that he had previously been discredited in the Hudspeth case. His Honour proceeded to assume, without deciding, that Slaters had breached its duty of care to Ms Hicks. The next question, then, was whether the principle of advocate’s immunity rendered Slaters immune from suit in respect of its engagement of Mr Dohrmann.
In answering this question, the trial judge referred to the decision of the High Court in D’Orta-Ekenaike v Victoria Legal Aid,[34] as confirming that advocate’s immunity extends to work done by a solicitor outside of court if it leads to a decision affecting the conduct of the case in court. His Honour also referred to the decision of the Trial Division of this Court in Goddard Elliott (a firm) v Fritsch[35] as confirming that the assembling of materials for presentation at trial is sufficiently connected with the conduct of a case in court to be protected by advocate’s immunity.[36]
[34](2005) 223 CLR 1; [2005] HCA 12.
[35][2012] VSC 87, [794]–[797] (Bell J).
[36]Negligence Judgment, [140]–[144].
Thus, the trial judge said:
[T]he retainer of Mr Dohrmann, whether the criticism be that he was an inappropriate expert as having been discredited, or that his report was obtained too late or that different questions might have been asked, all seem to be within the scope of the immunity.[37]
[37]Ibid [144].
In the lead up to the hearing of this application, and in light of Ms Hicks’s written submissions, the Court considered that it would benefit from the assistance of an amicus curiae as to the application of advocate’s immunity in the light of the trial judge’s finding. Ms Naomi Hodgson and Dr Ashleigh Best of counsel accepted a request from the Court and provided a written outline of submissions. After considering those submissions, we determined that it was not necessary for Ms Hodgson and Dr Best to appear. However, we express our gratitude for their assistance.

No loss or damage

As we foreshadowed, we do not propose to resolve the question of whether advocate’s immunity applied to Slaters’ engagement of Mr Dohrmann. This is because Ms Hicks failed to establish that she sustained any loss or damage as a result of Slaters’ engagement of Mr Dohrmann.
Ms Hicks’s claim, properly characterised, was for the loss of opportunity to obtain a favourable verdict in the trial of the FRD claim.
To establish an entitlement to damages, Ms Hicks therefore needed to establish, on the balance of probabilities, that Slaters’ negligence caused her to lose an opportunity of some value. This required her to adduce evidence that supported a counterfactual, namely, one in which an appropriately qualified and available expert would have given evidence that supported Ms Hicks’s claim and in which there was a ‘real possibility’ that the jury would have returned a different verdict.[38]
[38]See Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1994] HCA 4; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 498 (Dawson, Toohey, Gaudron and Gummow JJ, Brennan CJ agreeing at 491); [1995] HCA 53; Searle v Commonwealth (2019) 100 NSWLR 55, 99 [205] (Bell P, Bathurst CJ agreeing at 58 [1], Basten JA agreeing at 106 [246]); [2019] NSWCA 127; Wright v De Kauwe [No 2] [2024] WASCA 51, [61]–[66] (Buss P, Mitchell JA agreeing at [266], Lundberg J agreeing at [353]); The Bishop of the Roman Catholic Diocese of Wagga Wagga, Mark Edwards v TJ (a pseudonym) [2024] VSCA 262, [144]–[160] (Beach, Orr JJA and J Forrest AJA).
The starting point for such a counterfactual was therefore the hypothetical engagement of an appropriately qualified ergonomist or engineer.
In oral submissions, counsel for Slaters argued that there was no evidence to establish what would have transpired if an alternative expert ergonomist or engineer had been engaged. He posed the following questions:
Would it have been another expert who would have provided a report, and, if so, what would have been the content of that report? Would it have been supportive or would it have been negative? Would it have enabled that person to be called as a witness? Likewise, if the criticism is that there should have been a site visit, what would have been the effect of that site visit on the report? Remembering that it was many years after this trial, involving the setup of an office where the evidence that was given was that there had been changes in this office over the time in terms of the position of the printer relative to the chair, and so on.
Counsel for Slaters also pointed to the following matters which Mr Harrison identified in his evidence as affecting the viability of Ms Hicks’s claim:
(a)the office environment in which Ms Hicks was injured appeared benign;
(b)the risk that Ms Hicks could not establish that the injury she sustained in the office was reasonably foreseeable;
(c)the basic nature of the task performed by Ms Hicks, namely, stretching from her workstation to a printer;
(d)Ms Hicks had suffered a back injury at home only two days prior to the injury at FRD;
(e)Ms Hicks had stated to her fellow employees on the morning of her injury that her back pain was caused by handling horses;
(f)Ms Hicks had failed to make a claim at the time she was injured at FRD; and
(g)Ms Hicks had continued to work after suffering the back injury, and it appeared she resigned for reasons unrelated to her injury, such as FRD’s rejection of a request by her for higher pay.
In response, Ms Hicks submitted that without any evidence to prove negligence, her case was bound to fail. However, she relied upon Slaters’ failure to call Mr Jackson:
Again, with the absence of Mr Jackson as a witness, we do not know why he selected Mr Dohrmann. We do not know if an expert — another expert would have come up with a different answer. Those are the questions that can’t be answered because … I couldn’t ask Mr Jackson who was the one that handled the file at that time. [Slaters] didn’t call him. No reasons were given as to why he wasn’t called.
We accept Slaters’ submission that Ms Hicks did not demonstrate that she sustained any loss or damage as a result of Slaters’ engagement of Mr Dohrmann. There was no evidence before the trial judge as to:
(a)whether an alternative expert could have been engaged by Slaters to provide an opinion in relation to Ms Hicks’s injury;
(b)whether, if such an expert could have been engaged, that expert would have been critical of the system of work at FRD. This was particularly significant given that the task that Ms Hicks was engaged in at the time of injury was relatively innocuous; and
(c)whether, even if such an opinion was obtained, it could, as a real possibility, have affected the outcome of the trial.
The other problems identified by Mr Harrison further demonstrate the difficulties besetting Ms Hicks’s claim, and a potential verdict in her favour, even if a supportive ergonomist or engineer could have been engaged.
As for Ms Hicks’s reliance on Slaters’ failure to call Mr Jackson, there is no doubt he was a relevant witness, who was involved in handling the case both before and during the course of the trial. Slaters proffered no explanation for its failure to call him. However, the principle permitting an adverse inference to be drawn where a party fails to call a witness cannot be used to fill an evidentiary gap, or to convert suspicion into inference.[39] It is speculative to consider what Mr Jackson might have said about the availability of an expert, and what that expert may have been able to say about the system of work at FRD.
[39]Jones v Dunkel (1959) 101 CLR 298, 313 (Menzies J); [1959] HCA 8.
In the absence of evidence about the matters identified in [154] above, Ms Hicks has not established that there was a ‘real possibility’ that, absent the alleged negligence, the jury would have reached a different verdict at trial.
The end result is that Ms Hicks has not persuaded this Court that Slaters’ engagement of Mr Dohrmann, if not protected by advocate’s immunity, has led to any actionable loss or damage.
Ms Hicks’s application for leave to appeal on this ground must fail.

Conclusions

For the foregoing reasons, Ms Hicks has not succeeded on any of the proposed grounds of appeal. It follows that the application for leave to appeal must be refused.

[2024] VSCA 298

3 December 2024