Young v Hones - [2014] NSWCA 337

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Young v Hones [2014] NSWCA 337
Hearing dates: 2 May 2014
Decision date: 01 October 2014
Before: Bathurst CJ at [1]; Ward JA at [41]; Emmett JA at [305]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PROCEDURE - appeal - separate determination of question - whether the trial judge erred in determining separate questions of law prior to the close of pleadings, where the parties agreed to that course - whether trial judge erred in determining separate questions without reference to proposed statement of claim

PROCEDURE - pleadings - where statement of claim did not allege fraud and defence pleaded advocate's immunity - whether bad faith can be alleged in reply to advocate's or witness immunity

TORTS - negligence - advocate's and witness immunity - whether trial judge erred in articulating and applying tests for advocate's and witness immunity - whether the scope of advocate's immunity extends to acts or omissions in bad faith - whether the scope of advocate's and witness immunity extends to statutory causes of action
TORTS - negligence - witness immunity - where expert witness participated in expert conclave and gave evidence at costs hearing - whether trial judge erred in finding expert retained for the purpose of giving evidence
Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Fair Trading Act 1985 (Vic)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abriel v Rothman [2004] NSWCA 40
Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585
Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510
Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209
Bott v Carter [2012] NSWCA 89
Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590
CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601
Chamberlains v Lai [2006] NZSC 70; (2007) 2 NZLR 7
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Coco v The Queen [1994] HCA 41; (1994) 179 CLR 427
Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268
Coshott v Barry [2009] NSWCA 34
Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435
Dawkins v Lord Rokeby (1873) LR 8 QB 255
Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Donellan v Watson (1990) 21 NSWLR 335
Donnellan v Woodland [2012] NSWCA 433
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; [1981] 1 All ER 715
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Fell v Brown, Esq. (1791) Peake 131; 170 ER 104
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Goddard Elliott (a firm) v Fritsch [2012] VSC 87
Gray v Morris [2004] QCA 5; [2004] 2 Qd R 118
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335
Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398
Keefe v Marks (1989) 16 NSWLR 713
Kingston v Corker (1892) 29 LR Ir 364
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
M (a Minor) v Newnham London Borough Council [1995] 2 AC 633
MacRae v Stevens [1996] Aust Torts Reports 81-405
Marrinan v Vibart & Anor [1963] 1 QB 528
New Zealand Defence Force v Berryman [2008] NZCA 392
Palmer v Durnford Ford (1992) QB 483
Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Skinner [1772] Lofft 54; 98 ER 529
Rees v Sinclair [1974] 1 NZLR 180
Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stanton v Callaghan [2000] 1 QB 75
Stevens v Rowe (1880) 47 Am. Rep. 231
Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436
Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689
Watson v McEwan [1905] AC 480
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
X v Bedfordshire County Council [1995] 2 AC 633
Young v King [2004] NSWLEC 93
Young v King (No 4) [2012] NSWLEC 236
Young v Hones (No 2) [2013] NSWSC 1429
Young v Hones (No 2) [2014] NSWCA 338
Texts Cited: Justice Blair et al, Bullen & Leake & Jacob's Precedents of Pleadings, (17th ed 2012, Sweet & Maxwell)
Sir Jack Jacob and Iain Goldrein, Pleadings: Principles and Practice (1990, Sweet & Maxwell)
The Hon Peter Young and Hugh Selby, Rose's Pleadings Without Tears in Australia (1997, Federation Press)
Category: Principal judgment
Parties:
Margo Young (Appellant)
Brian Keith Hones (First Respondent)
Jason Hones (Second Respondent)
Ian Hemmings (Third Respondent)
Hughes Trueman Pty Ltd (Fourth Respondent)
Stephen John Perrens (Fifth Respondent)
Representation: Counsel:
RD Newell (Appellant)
JC Kelly SC with MJ Darke (First and Second Respondents)
DT Miller SC with Ms PA Horvath (Third Respondent)
DB Studdy SC with SE Gray (Fourth and Fifth Respondents)
Solicitors:
LC Muriniti & Associates (Appellant)
Colin Biggers & Paisley (First and Second Respondents)
Moray & Agnew (Third Respondent)
Kennedys (Fourth and Fifth Respondents)

File Number(s): CA 2013/00301763
Publication restriction: Nil
Decision under appeal

Citation:

Young v Hones (No 2) [2013] NSWSC 1429

Date of Decision:

2013-09-27 00:00:00

Before:

Garling J

File Number(s):

SC 2010/00041007

HEADNOTE

[This Headnote is not to be read as part of the judgment]

This judgment relates to an appeal from a decision of the Common Law Division of the Supreme Court dismissing the proceedings, after a separate determination of questions of law were answered in favour of the defendants.

The proceedings at first instance concerned claims of negligence against Ms Young's former solicitors, barrister, engineer expert witness and engineering firm, for negligence (and in the case of the lawyer respondents, claims of misleading and deceptive conduct). All parties had agreed to the separate determination of whether, as a question of law, advocate's immunity, in the case of the lawyer respondents, or witness immunity, in the case of the engineer respondents, was a complete defence to the claims. After answering the questions in the affirmative, the primary judge dismissed the proceedings.

Held dismissing the appeal:

Determination of separate questions in advance of close of pleadings

(1) by Ward and Emmett JJA (at [143] & [150] and [312], respectively), Bathurst CJ agreeing (at [1]) any allegation of mala fides on the part of the lawyer respondents should have been raised in the statement of claim not in reply.

Banque Commerciale SA En Liquidation v Akhil Holings Ltd [1990] HCA 11; (1990) 169 CLR 279 distinguished.

Kingston v Corker (1892) 29 LR Ir 364 followed.

(2) by Bathurst CJ and Ward and Emmett JJA (at [5], [154] and [313], respectively) it was undesirable to determine the separate questions before the close of pleadings.

(3) by Bathurst CJ and Ward and Emmett JJA (at [6], [151] & [155] and [313], respectively) his Honour did not err in determining the separate questions before the close of pleadings, where Ms Young made the forensic decision to consent to that course.

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 considered.

(4) by Ward JA (at [291]-[292]) Bathurst CJ and Emmett JA agreeing (at [1] and [315]) in not allowing Ms Young to file a reply, his Honour did not deny her natural justice.

Summary dismissal where there is a real question of law/fact to be determined

(5) by Ward JA (at [164]-[165]) Emmett JA agreeing (at [315]) his Honour did not consider an unsettled question of law in a summary dismissal application, but rather made an appropriate final determination of a separate question of law in advance of other issues in the proceedings. (Bathurst CJ agreeing (at [4]) that this was not a summary dismissal application.)

(6) by Ward JA (at [185]) Bathurst CJ and Emmett JA agreeing (at [1] and [315], respectively) there was no error in his Honour determining the question of witness immunity in advance of making factual findings as to any disputes in relation to that conduct.

Symonds v Vass [2009] NSWCA 139; (2009) ALR 689 considered.

Donnellan v Woodland [2012] NSWCA 433 applied.

Articulation and application of test for advocate's immunity

(7) by Bathurst CJ and Ward and Emmett JJA (at [3], [195] and [312], respectively) there was no error in his Honour not considering an allegation of breach of fiduciary duty in the proposed statement of claim; the relevant consideration was the current amended statement of claim.

(8) by Ward JA (at [217]-[218]) (Bathurst CJ and Emmett JA agreeing at [1] and [315], respectively) his Honour did not err in articulating or applying the test of advocate's immunity.

(9) (obiter) by Ward JA (at [150] & [228]), Emmett JA not deciding (at [312]) there is no reason to conclude that advocate's immunity does not extend to conduct which is mala fide.

Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436 distinguished.

(10) (obiter) by Ward JA (at [172]-[174] & [176]) advocate's immunity from suit applies to statutory causes of action; and (at [175]-[176]) witness immunity also applies to statutory causes of action.

(11) by Ward JA (at [232]) Bathurst CJ and Emmett JA agreeing (at [1] and [315], respectively) his Honour did not fail to provide adequate reasons for his conclusion as to the scope of advocate's immunity.

Articulation and application of test for witness immunity

(12) by Bathurst CJ and Ward JA (at [35] & [40] and [251] & [280], respectively) Emmett JA agreeing (at [315]) the test for witness immunity requires a connection between the work performed and the conduct of the case in court; his Honour applied this test to determine whether the work undertaken by the engineer respondents fell within the scope of witness immunity.

Palmer v Durnford (1993) QB 983 considered.

Stanton v Callaghan [2000] 1 QB 75 considered.

Darker v Chief Constable of West Midland Police (2001) 1 AC 435 considered.

Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 applied.

(13) by Bathurst CJ and Ward JA (at [39] & [40] and [261], [271], [274]-[275] & [288]-[290], respectively) Emmett JA agreeing (at [315]) his Honour did not err in concluding that the engineer respondents' were immune from suit in circumstances where they were retained for the purpose of the proceedings and ultimately gave evidence in the experts' conclave and the costs hearing.

(14) (obiter) by Ward JA (at [276]) regardless of whether the engineer respondents' retainer contemplated the giving of evidence, there is sufficient connection between the alleged negligent conduct and the settlement of the proceedings to bring the conduct within the scope of witness immunity.

(15) by Ward JA (at [283]-[284]) Bathurst CJ and Emmett JA agreeing (at [1] and [315]) his Honour provided sufficient reasons to explain his decision that the conduct of the respondent engineers fell within the scope of witness immunity.

Conclusion

(16) by Bathurst CJ (at [11] and [40], respectively) Ward JA (at [302]) and Emmett JA agreeing (at [315]) advocate's immunity and witness immunity are complete answers to the claims raised against the lawyer and engineer respondents, respectively.

Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510 distinguished.

Donnellan v Woodland [2012] NSWCA 433 considered.

Judgment

BATHURST CJ: I have had the advantage of reading in draft the judgments of Ward JA and Emmett JA. Subject to what I have written below, I agree with the orders proposed by Ward JA and with her Honour's reasons. I also agree with the additional remarks of Emmett JA.

The method of disposal

It is important to bear in mind that the primary judge disposed of the proceedings by answering separate questions ordered by him on 2 August 2013. The order for separate questions made by the primary judge was in the following terms:

"1. I order that in addition to the hearing of the motions for summary dismissal on 23 August 2013, that the following separate questions be heard on that day:

(a) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the first and second defendants;

(b) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the third defendant;

(c) Is the defence of witness immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the fourth and fifth defendants.

2. I order that those separate questions be heard and determined in advance of all other questions in the proceedings."

The parties agreed to this course and subject to the appellant's unsuccessful attempt to file a further amended statement of claim (Young v Hones (No 2) [2013] NSWSC 1429 (primary judgment) at [126]) the question of the witness immunity of suit (the immunity) was to be dealt with on the pleadings as they existed at that time.

Two consequences followed. First, this was not a case where it was sought to strike out or summarily dismiss the amended statement of claim, as to which the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129 would have applied.

Second, as stated by Ward JA (at par [154]) and Emmett JA (at par [313]) the approach adopted by the primary judge in the circumstances of the present case, with respect, was undesirable. In Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335, I emphasised that it was not appropriate in all cases for questions of advocate's immunity to be decided as a preliminary question. The present case was one which, to adopt the words of Kirby P in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, was not ripe for determination by way of separate question.

However, the appellant consented to the course adopted. As Ward JA has pointed out (at par [155]) she should be bound by that forensic decision.

The position of the lawyers

The pleading asserts that the first and second defendants (the solicitors) were retained in April 2003 to advise the appellant of her rights arising out of unlawful work carried out by her neighbours (amended statement of claim par [55]). It asserts that advice was given to commence proceedings in the Land and Environment Court (amended statement of claim par [57]). It pleads that the third defendant (the barrister) was retained in May 2003 to advise and appear in the Land and Environment Court proceedings.

The pleading then alleges (amended statement of claim par [71]) that the Local Council was a necessary party to the proceedings in the Land and Environment Court. It then pleads (amended statement of claim par [75]) that it was incumbent on the solicitors to advise the plaintiff, in effect, that to obtain an order (under s 124 of the Environmental Planning and Assessment Act 1979 (NSW)) that the neighbours reinstate the land on which the unlawful work occurred, the Local Council was a necessary party. The pleading alleges that the solicitors and the barrister failed to give that advice (amended statement of claim par [83]). That conduct was alleged to constitute a breach of a duty of care owed by them to the appellant and, with respect to the solicitors, misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth).

The critical paragraphs of the amended statement of claim are pars [102]-[107]. These paragraphs were in the following terms:

"102. A reasonable person in the position of:

(a) The First and/or Second Defendant would have provided the advice pleaded at paragraph 75 and would not have settled the proceedings except on the basis of orders providing for the Kings to take responsibility for the drainage of their land; and,

(b) In the position of the Third Defendant would have given the advice pleaded at paragraph 97;

103. At or about 3:00 pm on 16 February 2004 an expert conclave produced a document later called 'Exhibit A'. Exhibit A recorded drainage works purportedly recommended by the conclave of experts:

(a) Isolate drainage system for wall from stormwater

(b) Take to outlet in rear yard n. 37 at RL 7.95

(c) Lower existing 65 mm pipe to the wall footing zone at lowest level possible, considering grade to outlet to rear yard of no. 37;

104. Between 16 and 19 February 2004 (the duration of the hearing) the Second and Third Defendants without consultation with or instructions from the Plaintiff purported to settle the Plaintiff's claims in the proceedings on terms that:

(a) The Plaintiff consented to an order dismissing the Proceedings ('the Consent Order')

(b) The Kings gave an undertaking to the Court to submit a Development Application seeking approval for a retaining wall ('the Undertaking DA'), and;

(c) The Kings to seek approval to undertake the Exhibit A works as part of the Undertaking DA ('the Settlement').

105. The Settlement was wholly inadequate in the interests of the Plaintiff in that it represented a wholly inadequate alternative to the 124 Order:

(a) The Undertaking did not contemplate that the Kings would take responsibility to drain their land;

(b) The Settlement did not provide for an enforceable obligation or otherwise ensure that the Kings would take responsibility to drain their land;

(c) The Settlement did not contemplate that the Kings construct and provide drainage through their land for the retaining wall necessary to support the Plaintiff's land in contradistinction to the 20 cm retaining wall approved by Council.

(d) The Settlement did not contemplate that the Kings construct and provide drainage through their land for the retaining wall necessary to support the Plaintiff's land in contradistinction to the 20 cm retaining wall approved by Council.

(e) The settlement prevented the Plaintiff returning to Court to seek an appropriate remedy in circumstances that such an appropriate remediation was not achieved by the Undertaking DA.

106. The Settlement was a breach by the First Defendant of the express term of the Plaintiff's Retainer with the First Defendant that no steps would be taken by the First Defendant without consultation with the Plaintiff.

107. The Plaintiff has suffered loss and damage by reason of the Settlement and would not have suffered the loss and damage but for:

(a) The breach of contract pleaded at paragraph 106;

(b) The breaches of duty pleaded at paragraphs 81, 82, 85 and 98, and by reason of:

(c) The contraventions pleaded at paragraph 83."

Although the pleading in par [102] of the amended statement of claim alleges that a reasonable person in the position of a barrister would have given the advice pleaded in par [97], par [97] in fact relates to the fourth and fifth defendants (the engineers), and not to the barrister. However, the pleading had earlier alleged that by reason of the duty of care owed by the barrister to the appellant, it was incumbent on him to advise the appellant that it was necessary to join the Local Council in the proceedings. It should be noted that the barrister was retained after the proceedings in the Land and Environment Court had commenced.

What appears from the pleadings is that the loss suffered was alleged to have resulted from the settlement of the proceedings in breach of the duty owed by the lawyers to the appellant. Although it is pleaded that but for the earlier breaches, the loss would not have been suffered (amended statement of claim par [107](b)) the cause of the loss was the alleged negligent conduct in causing the appellant to enter into the settlement. In these circumstances the claim against the solicitors and the barrister related to work done out of court which led to a decision affecting the conduct of the case in court: Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 (Giannarelli) at 560 and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (D'Orta) at [86].

I have reached this conclusion with some misgivings because as I indicated, the issue was one not ripe for determination by way of a separate question. Not only had the pleadings not closed but the amended statement of claim itself is obscure and there remains a possibility that had the issues been more precisely defined a different result may have been reached. However, as I indicated, the appellant is bound by the forensic choice she made in the Court below.

The position of the engineers

The appellant in her submissions did not suggest that the Court should follow the decision of the United Kingdom Supreme Court in Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398. In that case a majority of the Court (Lord Hope and Baroness Hale dissenting) held that immunity from suit for breach of duty, which expert witnesses retained in litigation had enjoyed previously, should be abolished. In my opinion the appellant was correct in adopting this course.

In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139, 141 and 149, the High Court upheld the immunity without engrafting any exceptions to it. Rich ACJ explained at 139 that proceeding against a witness is an attempt to re-examine the judgment in the earlier proceedings. He cited with approval the statement of Allen J in Stevens v Rowe (1880) 47 Am. Rep. 231 at 232, to the effect that "[t]he procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation".

In Giannarelli the existence of the advocate's immunity was affirmed. Mason CJ described at 533 the foundation of the principle as being that mischief would result if those engaged in the administration of justice were not able to speak freely (see also 569-570 per Wilson J and 595 per Dawson J).

The immunity was also affirmed by the plurality in D'Orta at [39]-[40]. They referred at [41] to the fact that statements can be found in the cases that the immunity serves to encourage freedom of expression or freedom of speech. They also stated that the deeper consideration that lies beneath the principle is that determining whether the complaint against the witness is or is not justified requires relitigation of the matter out of which the complaint arises.

Two matters arise from those cases. First, it is not open to this court to vary or engraft exceptions to the immunity. Second, once it is appreciated that, like advocate's immunity, the principle underlying the immunity is the principle of finality, there is no logical reason to exclude experts from its scope.

There remains the question to what extent the immunity extends to out of court work conducted by experts. The immunity of witnesses from activities engaged pre-trial have been considered in a number of cases. However, in dealing with those cases it is important to bear in mind the underlying rationale for the immunity in this country.

In Watson v McEwan [1905] AC 480 it was held by the House of Lords at 487 per Earl of Halsbury LC (the other Lords agreeing) that the privilege surrounding the evidence actually given in court necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of the proceedings.

The position of an expert in a criminal context was considered by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 (Evans). That case involved a report made by various analysts employed by the hospital following a post-mortem examination of a deceased child. The report stated that organs of the child contained various concentrations of morphine. The result was reported to the police in the form of a statement and formed the basis of a prosecution of the mother. However, at the trial no evidence was presented as it appeared the analysis was contaminated. The mother subsequently sued the hospital and the analysts claiming negligence in, amongst other things permitting the organs to become contaminated, not appreciating the high likelihood of contamination and not retracting their reports subsequently.

Drake J held that the hospital and the analysts were immune from suit. He stated at 191 that for the object of the immunity to be achieved it should extend to cover statements made by the witness prior to the issue of a writ or commencement of a prosecution. This was provided the statements were made for the purpose of such an action and at a time when such an action is being considered.

In Palmer v Durnford Ford [1992] QB 483 (Palmer) Simon Tuckey QC, sitting as a Deputy Judge of the High Court, considered the issue in the context of civil proceedings. He reached the following conclusion as to the scope of the immunity:

"The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198 in the analogous but not identical situation of the advocate's immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.

I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not."

In X v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson (with whom the other members of the House agreed), stated at 755 that he found the reasoning of Drake J in Evans compelling in criminal proceedings. His Lordship stated that he expressed no view as to the position in ordinary civil proceedings, but stated that nothing he had said cast any doubts on Palmer.

In Stanton v Callaghan [2000] 1 QB 75 the plaintiffs engaged the defendant, a structural engineer, to prepare a report on repairs necessary to a property. The plaintiffs' insurers rejected a claim for the cost of the work and proceedings were commenced. The defendant was retained as an expert but following a meeting with the insurers' expert he changed his report. The plaintiff brought proceedings claiming the defendant was negligent in accepting as adequate the work proposed in the joint report. It was held that the defendant was immune from suit. It does not appear to have been alleged that the engineer was negligent in the preparation of his original report.

Chadwick LJ, after reviewing the authorities, stated the following principles in relation to experts' reports at 100:

"What, then, is the position in relation to expert reports? It seems to me that the following propositions are supported by authority binding in this court: (i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed."

However, his Lordship was prepared to accept at 101-102 that the immunity extended to a report prepared for the purpose of exchange prior to trial even if a trial of the proceedings did not take place.

Otton LJ, after referring with approval to Palmer stated at 104 that the relevant test was one "of principal and proximate connection". Nourse LJ, after referring to Palmer said at 109 that a substantial purpose test might be preferred.

In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 it was held the immunity did not extend to debar a claim against police who were potential witnesses in a prosecution against the plaintiff, although they were ultimately never called. It was alleged the police officers had fabricated evidence in what was described as the investigative process. Lord Hope stated at 446 that he agreed with the speech of Lord Hutton. He added at 449 that he would not accept for all purposes the description of the extent of the immunity given by Drake J in Evans. He stated that the immunity extends only to the content of the evidence which the witness gives or is preparing to give based on material collected by him or her. He said that the acts of the witness in collecting material on which he or she may later be called upon to give evidence are not protected.

Lord Mackay stated at 452 that the immunity was limited to conduct which can be called in question only by a founding on a statement in court or a statement which is part of the preparation of evidence for court proceedings. Lord Cooke on the other hand stated at 454 that the immunity did not extend to the fabrication of evidence.

Lord Clyde emphasised at 457-458 the importance of the finality of litigation. However, he stated at 459 that it was not enough that there be an investigation, the investigation must be with a view to an action or prosecution which is already under consideration.

Lord Hutton emphasised at 471 the difference between steps taken for the purpose of making a statement of evidence which the maker intends to be accurate and truthful (which is covered by the immunity) and the steps taken for the wrongful purpose of fabrication of evidence (which is not covered).

Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 was a case somewhat similar to Evans. An analyst employed by the appellant issued a certificate stating that a substance contained a prohibited drug. The certificate was used in the prosecution of the owner, who was convicted. The owner was acquitted on appeal on the basis the certificate was manipulated. He brought proceedings against the appellant and the analyst. It was held the immunity applied.

Beazley JA (as her Honour then was) with whom Mason P agreed, extensively reviewed the authorities. She concluded at [84] that the immunity extended beyond the giving of evidence in court, but for it to apply there must remain a connection with the evidence which is to be given. She pointed out at [93] that in the case before her the sample was to be used for the purpose of a prosecution and that permitting the proceedings before her to be brought would be contrary to the underlying rationale of the immunity, namely, finality of litigation.

Finally, although New Zealand has abolished advocate's immunity it has not limited witness immunity in a manner similar to the United Kingdom: Chamberlains v Lai [2006] NZSC 70; (2007) 2 NZLR 7. In New Zealand Defence Force v Berryman [2008] NZCA 392 at [68] the New Zealand Court of Appeal stated that the immunity was limited to what was said in court and the necessary preliminaries to that evidence.

This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate's immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court: D'Orta at [86].

As with the case against the lawyers I have some doubts whether the question of the engineers' immunity was ripe for determination. However, the appellant is bound by the course she had taken below.

Importantly the amended statement of claim pleads the engineers were retained by the appellant in early November 2003 after the commencement of the proceedings in the Land and Environment Court.

The pleading states (at par [95]) that the fifth respondent, for whom the fourth respondent was said to be vicariously liable, was briefed with documents relating to the application in the Land and Environment Court, including the points of claim. It pleads (amended statement of claim par [103]) that an expert conclave in which the fifth respondent participated recommended certain remedial works. The pleading then refers to the settlement with the neighbours, which included an undertaking by the neighbours to seek development approval for work, including the remedial work (amended statement of claim par [104]). It pleads that the settlement was inadequate (amended statement of claim par [105]) and that the appellant suffered loss and damage as a result.

The pleading thus alleges that the engineers were retained for the purpose of the proceedings, failed to advise as to the appropriate extent of the remediation work and negligently agreed at the expert conclave to inadequate remediation work as being necessary. It is alleged this caused the entry into the settlement, which is alleged to have resulted in the loss claimed by the appellant.

It follows that the work done by the engineers was work done out of court which affected the conduct of the case in court. The claim arose directly out of the result of an expert conclave which formed part of the proceedings in the Land and Environment Court. In those circumstances, in my opinion, the primary judge was correct in deciding that the engineers were immune from suit.

WARD JA: Ms Young is a pensioner who lives in Forestville. She was involved in Land and Environment Court proceedings in 2003/4 in relation to her complaint as to building works carried out on her neighbours' property. Those works included excavation on the boundary of Ms Young's property, the construction of a granny flat on the neighbours' land and a "massed footing" and retaining wall on the boundary. Ms Young's complaint was as to the impact of the works on drainage from her property, which is up slope from her neighbours' property.

The Land and Environment Court proceedings were resolved in 2004 following a settlement reached by the parties shortly after the hearing commenced. The only issue left outstanding in that settlement was as to who should bear the costs of the proceedings. That issue was determined in favour of Ms Young (Young v King [2004] NSWLEC 93) by McClellan CJ at LEC (as his Honour then was) following a short hearing in the course of which evidence was given by expert engineering witnesses called by each of the parties.

Settlement of the substantive dispute involved the acceptance by Ms Young of an undertaking by her neighbours to lodge a development application for works to their property that the experts for the respective parties had agreed needed to be done in order to rectify the environmental problems caused or likely to be caused by what were conceded, at least in part, to have been unauthorised works on the neighbours' property.

The present proceedings in essence arise out of Ms Young's ultimate dissatisfaction with the rectification solution that the experts had agreed would be appropriate and on the basis of which she had settled the Land and Environment Court proceedings. That solution, which it is not disputed has never been implemented, is said by Ms Young to be unworkable and "illusory".

Ms Young contends that the effect of the settlement has been, as a practical matter, to shift from her neighbours to herself the burden of responsibility for drainage from her property and that this was part of a Council "agenda" (with which Ms Young has suggested the first, second and third respondents were complicit). Ms Young does not suggest any reason why Council would have had an interest as to who, as between Ms Young and her neighbours, should bear the burden of drainage from Ms Young's property; nor why the first, second and third respondents to the present proceedings would have promoted such an "agenda". That seems to be no more than a matter of conjecture.

Ms Young contends that the appropriate course to have been adopted was for the reinstatement of the neighbouring property, to put the property back in the position in which it was prior to the unauthorised works. Her complaint is that she is now unable, by virtue of the settlement, to pursue such a course of action.

In 2010, Ms Young commenced proceedings in the Common Law Division, against those who were retained by or on her behalf in relation to the Land and Environment Court proceedings and/or who gave advice as to issues relevant to the settlement of the dispute the subject of those proceedings, namely: her then solicitors (the first and second respondents); the barrister retained to advise and appear for her in the proceedings (the third respondent); the expert hydrological engineer who gave evidence at the hearing in relation to costs and who had participated in the experts' conclave that led to the settlement of the proceedings (the fifth respondent); and the engineering services company which had employed that expert engineer and was said to be vicariously liable for his conduct (the fourth respondent). I refer to the first three respondents, collectively, as the lawyer respondents and the remaining respondents as the engineer respondents.

Ms Young claimed damages, including the diminution in the value of her house and the fees incurred in the Land and Environment Court proceedings, from the lawyer respondents for negligence and misleading and deceptive conduct and from the engineer respondents for negligence. After the proceedings had been on foot for some time, she sought, unsuccessfully, to amend her pleading to allege breach of fiduciary duty by the lawyer respondents, asserting that they had acted mala fide in preferring the interests of the Council over her own interest in the proper drainage and retention of her land. In that regard, her contention was that the conduct of the lawyer respondents was so poor that it could only rationally be explained by an inference of mala fides.

The appeal now brought by Ms Young is from the summary dismissal by Garling J of the Common Law Division proceedings, prior to a hearing on the merits of Ms Young's claims, consequent upon his Honour's determination that, as a matter of law, advocate's or witness immunity was a complete answer to all of the claims made against the lawyer and engineer respondents, respectively (Young v Hones (No 2) [2013] NSWSC 1429).

Ms Young's appeal is as of right. For the reasons set out below, I am of the opinion that her appeal should be dismissed with costs.

Background

As is evident from the above brief introduction, the present proceedings are the culmination of many years of dispute in relation to building work carried out on Ms Young's neighbours' property in mid-2001. A development consent was issued by Warringah Council on 5 February 2002 for alterations to the existing dwelling including the creation of a granny flat and construction of a retaining wall and garden shed (see [43] of the amended statement of claim). A construction certificate was subsequently issued on 11 December 2002 by Warringah Council (see [53] of the amended statement of claim). Ms Young now contends that the construction certificate falsely noted the level of excavation that had been carried out and that this had the effect of validating the earlier unauthorised excavation.

Ms Young commenced class 4 proceedings in the Land and Environment Court against her neighbours on 14 April 2003. She had retained the first two respondents as solicitors to advise her in relation to the dispute. They were at all relevant times the solicitors with conduct of the proceedings. The third respondent was not briefed in the matter until May 2003, after the proceedings had been instituted.

The points of claim filed in the Land and Environment Court proceedings were not before this Court. However, the ambit of the claims in those proceedings can be discerned from the description given by the primary judge in the proceedings the subject of this appeal (Young v Hones (No 2) at [15]-[16]) from which the parties did not demur, namely that in the Land and Environment Court proceedings, Ms Young had pleaded trespass and various illegalities affecting the works undertaken by her neighbours and had claimed relief including declarations, injunctions and damages. This is consistent with the description given by McClellan CJ at LEC, in his costs judgment in the Land and Environment Court proceedings ([2004] NSWLEC 93) (a copy of which was annexed to an affidavit given in support of the solicitor respondents' amended notice for dismissal of the proceedings (at [13] and [14])).

Warringah Council was not joined as a party to the Land and Environment Court proceedings, a matter in respect of which Ms Young takes issue in her claims against the lawyer respondents in the present proceedings. Ms Young contends that the Council was a necessary party to those proceedings on the basis that, for reinstatement of the neighbours' property to be ordered, it would be necessary to set aside the 2002 Council consent, and that the lawyer respondents knew or should have known this and should have advised her accordingly.

The matter was listed for hearing on 16 February 2004 before McClellan CJ at LEC. During the course of that day, the experts retained for the respective parties (one of whom was the fifth respondent) met in conclave and reached an agreement between themselves as to the works necessary for rectification (or remediation) of the environmental problems on the site. Whether or not the conclave was pursuant to a formal direction by the Court is not clear. However, it appears to be accepted that the conclave was at least in a practical sense one held under the auspices of the Court.

Following that conclave, Ms Young accepted an undertaking by her neighbours as to the lodgement by them of a development application to carry out the agreed works. That undertaking was noted by the trial judge, who then dismissed the proceedings by consent. In relation to the sole remaining issue in dispute between the parties, the issue of costs, McClellan CJ at LEC held a short hearing in the course of which he heard evidence from the respective experts. His Honour accepted the fifth respondent's analysis of the situation and his conclusion that the construction of the footing on the boundary of the two properties, without adequate drainage, would have the consequence, in significant wet periods, of locally raising the water table adjacent to a cottage on the property ([33]). His Honour further accepted the fifth respondent's opinion that the works which the neighbours had agreed to undertake had been made necessary by reason of the construction, without consent, of a retaining wall on their property ([34]). His Honour concluded that Ms Young had in effect succeeded in the proceedings and made a costs order in her favour ([35]).

That did not, however, bring an end to this litigious saga.

In 2008, Ms Young sought relief from the Land and Environment Court to vacate or set aside the consent orders that had been made by McClellan CJ at LEC. That application for relief (of which it seems there were a number of versions) was ultimately dismissed in 2012 by Sheahan J (Young v King(No 4) [2012] NSWLEC 236). His Honour summarised the "long and complex history" of the proceedings. His Honour noted (at [401]) that early allegations of collusion, fraud and conspiracy were detailed in correspondence in late November 2011 and that those had "flowered" and widened over time since then. His Honour noted (at [401]) that the respondents to those proceedings (the neighbours) had not been implicated directly in those allegations and (at [402]) that all that was put against them were imputations of knowledge and/or motive. According to Sheahan J, the Court was being invited to deduce that there were no alternative explanations, or descriptions, of their (i.e., the neighbours') conduct (other than explanations consistent with collusion, fraud or conspiracy) ([402]). (Similar logic seems to have informed the pleading of the proposed further amended statement of claim for which leave was refused in the Common Law Division proceedings against the lawyer respondents.)

Ms Young apparently also commenced proceedings in the District Court against her neighbours and the Council for damages (since part of the relief she claimed in the Common Law Division proceedings included the costs of such proceedings). Nothing was drawn to this Court's attention as to the precise claims made in those proceedings.

In February 2010, Ms Young commenced the Common Law Division proceedings against the respondents. The initial statement of claim filed by Ms Young was not included in the appeal books, nor were the defences that were filed to that statement of claim.

In the period up to April 2013, Ms Young served on the parties numerous iterations of an amended statement of claim leading up to the filing on 5 August 2013, by leave of the Court, of amended statement of claim that is the subject of the present approval. The circumstances in which that leave was granted were canvassed in the reasons published today (Young v Hones (No 2) [2014] NSWCA 338) in relation to the dismissal by this Court on 2 May 2014 of Ms Young's application for leave to appeal from the primary judge's subsequent refusal to permit a further amendment of the statement of claim to include, relevantly, allegations of breach of fiduciary duty against the lawyer respondents.

In her amended statement of claim filed on 5 August 2013, Ms Young pleaded causes of action for breach of contract against the first and fifth respondents; in tort against each of the five respondents; and for misleading or deceptive conduct in breach of the Fair Trading Act 1987 (NSW) and the now repealed Trade Practices Act 1974 (Cth) against each of the lawyer respondents.

The primary judge fixed 23 August 2013, with the consent of the parties, for the hearing of questions of law as to whether the defence of advocate's immunity (in the case of the lawyer respondents) and witness immunity (in the case of the engineer respondents) was a complete answer to all the causes of action on which Ms Young relied against the respective respondents. On that day, Ms Young made an application for leave further to amend her statement of claim to include allegations of breach of fiduciary duty against the lawyer respondents. His Honour reserved judgment on that application and indicated that he would deal with the separate questions of law on the written submissions.

The respondents had maintained that advocate's or witness immunity, as the case may be, was a complete answer to Ms Young's claims against them and sought an order that Ms Young's claims be dismissed if there were to be a favourable determination of the separate questions. His Honour in due course made such an order, having found for the respondents on the separate questions of law.

Amended statement of claim

Before turning to his Honour's reasons for summarily dismissing the proceedings (Young v Hones (No 2)), it is necessary to summarise the relevant parts of Ms Young's amended statement of claim since it is from this document that the impugned conduct in respect of which immunity was held to be a complete defence must be identified. There is no allegation of fraud, breach of fiduciary duty or mala fides in that pleading.

No defences had been filed at that stage in answer to the amended statement of claim. The argument before the primary judge proceeded on the basis that the defences of immunity already pleaded in answer to an earlier iteration of the statement of claim would stand as defences to the amended pleading (see [133] of his Honour's reasons).

Claims against lawyer respondents

Scope of the respective retainers

Although the pleading, in various places, refers to one or other of the first two respondents, for present purposes there is no relevant distinction between them. The retainer of the second respondent is pleaded at [55] as a retainer to advise Ms Young "of her rights by reason of the unlawful works undertaken by [her neighbours]" and the grant by the Council of the consent and the construction certificate. The terms of the retainer as pleaded at [59] include an implied term that the first respondent would exercise all reasonable care, skill, diligence and competence in the conduct of the retainer.

The retainer of the third respondent, the barrister, is pleaded at [77] as a retainer to advise the first respondent, for the benefit of Ms Young, "as to the conduct of the Proceedings in the interests of the Plaintiff and the preparation of Court documents". At [78], it is pleaded that the third respondent, by reason of the retainer, owed Ms Young a duty to exercise reasonable care and skill.

Premise of the claims against the lawyer respondents

The fundamental premise on which the respective claims against the lawyer respondents are brought is the combination of the allegations at [70] and [71].

The unlawful works were pleaded (at [16]) as including removing and/or negating the sub-division drainage system that was effected at the time of the sub-division of the land in 1958. At [70], it is alleged that, by reason of the effect of those works and "in the absence of a satisfactory proposal from [the neighbours] for remediation", the "appropriate" remedy in the interests of Ms Young in the Land and Environment Court proceedings was an order under s 124 of the Environmental Planning and Assessment Act1979 (NSW) that the neighbours be required to reinstate their land and the buildings on their land to the state that they were in prior to the unlawful works and the previous unlawful works. This remedy was defined in the pleading as "the 124 Order".

Significantly, in light of the distinction now drawn by Ms Young between reinstatement and remediation, the pleading here casts reinstatement as the appropriate remedy on the basis or assumption that there was not a satisfactory proposal for remediation. Logically, once there was a satisfactory proposal for remediation then the basis on which reinstatement was alleged to be the appropriate remedy would fall away.

Relief under s 124 of the Act is within the discretion of the Court. Section 124 provides, relevantly, as follows:

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a) where the breach of this Act comprises a use of any building, work or land - restrain that use,

(b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or

(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

...

At [71], it is alleged that the Council was a necessary party to "the Proceedings which sought the 124 Order". This is alleged to be the case on the basis that Ms Young could not obtain a declaration that the 2002 consent and the 2002 construction certificate were invalid without the Council being a party and because Ms Young could not obtain the 124 Order without an order setting aside the consent ([71(a)-(b)]). It is alleged that it was necessary for the consent to be set aside because the 124 Order would involve the demolition or alteration of structures or features of the land that were approved by the consent, which was valid on its face. The respondents do not accept that the Council was a necessary party in order for Ms Young to obtain an order for reinstatement but it is not necessary for present purposes to decide this.

Alleged actual or constructive knowledge

It is alleged that the lawyer respondents had actual or constructive knowledge of various matters.

Paragraphs [72] and [73] contain the allegations as to the actual or constructive knowledge of the second respondent (the solicitor with the day to day carriage of the Land and Environment Court proceedings). That knowledge is alleged by reason of his instructions and by reference to his inspection of the Council file and certain affidavits. Particulars of the documentary source of the solicitor's actual or constructive knowledge, and the basis for the allegation of the constructive knowledge, were set out in an annexure to the pleading.

As against the third respondent, it is pleaded that, by reason of the matters with which he was briefed (similarly particularised in an annexure to the pleading), he knew or ought to have known, by the dates there specified, various matters including some, but not all, of the matters that it is alleged the second respondent knew or should have known ([79]).

Paragraph [76] contains a further allegation of knowledge on the part of the second and third respondents. Although not completely clear, what appears to be alleged at [76] is that the second and third respondents knew, no later than the respective dates there specified, that the construction certificate plans contained a particular "building waste notation". The paragraph goes on to plead that Ms Young had obtained and enhanced copies of the plans that were in her neighbour's affidavit but were illegible so far as concerned the notation. The relevance of this notation, as I understand it, is that it is alleged to record "false levels" of excavation, thus rendering compliance with the conditions of consent ineffective to address the drainage problems caused by the building works. Hence it is said it was necessary for Ms Young to challenge the validity of the development consent rather than seeking to enforce the conditions of consent in order to obtain a resolution of the drainage problem.

Alleged duty to advise as to particular matters

At [74], the duty of care owed by the first and second respondents is pleaded: as to the first respondent, being both a contractual and general law duty; as to the second respondent, only a general law duty. That duty is alleged to have arisen as a consequence of the solicitors' retainer and of the knowledge that it is alleged the second respondent "had acquired or inferred" as pleaded at [24], and by reason of the matters pleaded at [73]. Paragraph [24], to which reference is there made, is a pleading that certain DA Plans (as defined in [23]) had conveyed to Ms Young (not the lawyer respondents) that the development application "was calculated to provide her with a retaining wall with a 100 mm ag. drain in stocking draining to stormwater" in the neighbours' land.

At [75], it is alleged that, by reason of the duty pleaded at [74], it was incumbent upon the solicitors to advise Ms Young of certain matters, including that: to "remedy" the unlawful works and environmental harm caused thereby, she should seek the 124 Order ([75(a)]); the consent should be set aside and declared invalid and that she should seek orders accordingly ([75(b)]); to obtain such an order, the Council would need to be a party ([75(d)]) and was a necessary party to the proceedings ([75(e)]); and she should give her instructions to join Council as a party to the proceedings ([75(j)]). Although complaint is made in the pleading that the lawyer respondents failed to provide the said advice at any time prior to settlement, it is conceded by Ms Young (AT 43.22) that in the Land and Environment Court proceedings Ms Young did seek the relief referred to in [75(a)]. Hence, in some form, at least that part of the advice must have been given.

Other matters of which it was alleged that the solicitors had a duty to advise Ms Young included: that she should claim damages in trespass from her neighbours in the Supreme Court if the neighbours did not agree to pay the costs of reinstatement of "her land" ([75(g)]) and that she had a claim in damages in trespass, nuisance and the law of support in the Supreme Court that should be pressed when the land was reinstated and the damages could be quantified ([75(h)-(i)]). The allegation was not that Ms Young should have been advised to commence proceedings in another jurisdiction at the outset of her claim, as opposed to bringing the proceedings in the Land and Environment Court that were in fact brought. Moreover, in the proceedings in fact commenced there was apparently a claim for damages.

I refer to the advice that it is alleged the solicitors were under a duty to give to Ms Young, as set out in [75] of the pleading, as "the Legal Advice".

At [80], it is alleged that it was incumbent upon the barrister to provide the Legal Advice to the first respondent for the benefit of Ms Young and/or to Ms Young ([80(a)]) and to advise Ms Young to enable her to prosecute the proceedings with a view to obtaining the 124 Order "or a satisfactory remediation proposal" ([80(b)]). It is not clear to what extent the allegation in [80(b)] expands that set out in [80(a)]. Relevantly, the possibility of a remediation proposal, as an alternative to reinstatement, was there clearly contemplated as a potential and, implicitly, appropriate means of resolution of the dispute.

In oral submissions on this appeal, Ms Young accepted that in essence her complaint was as to a failure by the lawyer respondents to advise that the Council should have been joined in the proceedings for the purpose of being able to seek an order for the consent to be set aside (AT 43.29 - 44.2). That is not, however, precisely how the allegation is framed in the amended statement of claim.

At [99], it is pleaded that the risk of harm against which the respective respondents (including the engineer respondents) were alleged to have failed to take precautions (for the purposes of the breaches earlier pleaded) was the risk that a person in the position of Ms Young would not secure an outcome in the proceedings that would adequately secure the drainage and retention of her land. It is alleged that the said risk of harm was foreseeable ([100]) and was not insignificant because, in the absence of appropriate orders, damage was a "certainty" and damage was likely to be very substantial (by reference to the expense of Ms Young finding an outlet for water from her land) ([101]).

At [102], it is alleged that a reasonable person in the position of the solicitors would have provided the Legal Advice "and would not have settled the proceedings except on the basis of orders providing for the [neighbours] to take responsibility for the drainage of their land"; and that a reasonable person in the position of the barrister would have given the advice pleaded at [97] (sic; scil the Legal Advice pleaded at [75]). (The allegation that a reasonable person in the solicitors' position would not have settled the proceedings except on a particular basis is a curious one. The duty of the solicitors, surely, was to provide advice in relation to settlement but then to act in accordance with their instructions not of their own motion unless so instructed.)

Alleged breach of duty of care

At [81] and [82], respectively, it is pleaded that the lawyer respondents did not at any time prior to the finalisation of the proceedings give the Legal Advice and that each was in breach of the duty of care he owed to Ms Young to provide the Legal Advice.

At [104], it is pleaded that, between 16 and 19 February 2004, the second respondent and the barrister "without consultation with or instructions from" Ms Young "purported to settle" her claims in the proceedings on the terms there set out. No further elucidation is provided in the pleading as to the apparent allegation there made that the settlement was unauthorised; nor is this the basis on which loss or damage is claimed against the lawyer respondents. Given the use of the verb "purported", it seems that what is here alleged (consistent with Ms Young's fundamental complaint) is not that settlement was unauthorised but that it did not have the effect that Ms Young required or that, properly advised, she would have required. Before the primary judge, the allegation that the proceedings were dismissed by consent without Ms Young's instructions was explained as being that this happened "without consultation and without subsequent explanation":

She has never been told by her lawyer what was supposed to happen to the surface water, she has never been told anything about the agreement, because you can't explain an agreement without saying , oh, of course you are responsible for the surface water.

No ground of appeal is raised in relation to this aspect of the matter. In that regard, I note that in Donellan v Watson (1990) 21 NSWLR 335 at 338, Mahoney JA said:

I am conscious also that the question may arise as to the action of an advocate in the settlement of a case outside the court. In Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436, the court considered the liability of an advocate who compromises a proceeding contrary to his client's instructions. Ordinarily, such a compromise, even if the consensus be reached out of the court, is within the immunity. If the advocate, in court, secures an order based on the compromise, he will, I think, not be liable notwithstanding that the making of the agreement and so the obtaining of the order was contrary to his instructions. (my emphasis)

Hence, absent a pleading of fraud, the fact that the settlement may have been contrary to or not consistent with Ms Young's instructions would not preclude reliance on the relevant immunity.

Alleged misleading and deceptive conduct

The misleading and deceptive conduct claim against each of the lawyer respondents is pleaded from [83]-[89]. It centres on an alleged representation to the effect that the Council was not a necessary party to the proceedings for the purpose of securing a remedy for the problems caused by the unlawful works ([83]). This representation is alleged to have been false and untrue ([84]) and to have been made negligently, in that each of the lawyer respondents knew or ought to have known that the Council was a necessary party to the proceedings ([85]). The representation is particularised by reference to an email of 21 August 2003 prepared by the barrister and sent to the second respondent for publication to Ms Young.

At [87], it is pleaded, further and in the alternative, that insofar as the representation constituted an expression of opinion it carried an implied representation (which was false) that there were reasonable grounds for forming the opinion.

Insofar as it is alleged that the individual lawyer respondents contravened the Trade Practices Act, reliance is placed on their conduct as involving postal telegraphic telephonic services within the meaning of s 6(3) of that Act ([88]). It is conceded by the lawyer respondents that his Honour erred (at [144]) in accepting a submission that had been made by the first and second respondents to the effect that the Trade Practices Act did not apply to their conduct as individuals. Nothing turns on this error for present purposes.

Reliance on the email representation is alleged to be that Ms Young continued to retain the first respondent and did not instruct or insist that "they" join the Council as a party; and did not seek other legal representation ([89]).

Claim against engineer respondents

The claim against the engineer respondents is pleaded from [90]-[98].

At [90], it is pleaded that the fourth respondent (the company) was retained (by the first respondent and/or by Ms Young through the agency of the first respondent) "to provide advice, for the benefit of [Ms Young], as to hydrological issues in connection with the unlawful works undertaken by the [neighbours]". Paragraph [92] pleads that the second solicitor, pursuant to the retainer to advise, requested the fifth respondent to prepare a remediation plan in respect of the adverse consequences for Ms Young's property of the unlawful works and that he assumed the responsibility to advise "in relation to an appropriate remediation plan".

The duty of care owed by the company is pleaded as a contractual and general law duty; the duty of care owed by the expert engineer as a general law duty only ([94]).

At [96], actual or constructive knowledge on the part of the engineer respondents of certain matters is pleaded, including that Ms Young was seeking as her "claimed remedy" the reinstatement of the neighbouring property. Knowledge of the Land and Environment Court proceedings on the part of the engineer respondents is thus pleaded as part of the circumstances surrounding, and context of, their retainer.

At [97], it is pleaded that it was incumbent on the engineer respondents to advise or warn Ms Young of the matters there set out, including: that a satisfactory remediation plan would provide for drainage of both surface and sub-surface water drainage through an effective outlet in the rear of the neighbours' property as the downstream property ([97(b)]) and that, for such a remediation plan to be effective and approved by the court or the Council, it had to provide either for on-site disposal or a plastic stormwater outlet draining through with an easement through the properties to the rear of the neighbours' property ([97(c)]). It is further pleaded at [97] that it was incumbent upon the engineer respondents to advise that the fourth respondent (i.e., the engineering services company) was not in a position to prepare or design a remediation plan as an alternative to the reinstatement order by Ms Young (by reason, it seems, of the matters identified in [97(a)-(f)]). I refer to the advice or warning that it is alleged it was incumbent on the engineer respondents to give as the Engineering Advice.

It is alleged that, in breach of the duties pleaded at [94], the engineer respondents failed to provide the Engineering Advice at any time prior to the settlement of the proceedings ([98]). Relevantly, therefore, the alleged negligence extends to failure to provide the Engineering Advice in the context of the participation of the fifth respondent in the expert conclave that led directly to the settlement of which complaint is now made.

Damages

At [105], it is pleaded that the settlement of the proceedings was wholly inadequate in the interests of Ms Young "in that it represented a wholly inadequate alternative to the 124 Order".

This is alleged to be because: the undertaking did not contemplate that the neighbours would take responsibility to drain their land; the settlement did not provide for an enforceable obligation or otherwise ensure that the neighbours would take responsibility to drain their land; the settlement did not contemplate that the neighbours construct and provide drainage through their land for the retaining wall necessary to support Ms Young's land "in contradistinction to the 20cm retaining walls approved by Council"; and the settlement prevented Ms Young returning to court to seek an appropriate remedy "in circumstances that such an appropriate remediation was not achieved by [the undertaking accepted in relation to the development application]".

Particulars of the loss and damage allegedly suffered "by reason of" the settlement, and that it is alleged would not have been suffered but for the alleged breaches and contraventions are identified (after [108] of the amended statement of claim), as being: diminution to the value of Ms Young's house; further prospective damage to Ms Young's house; loss of opportunity, or a lessening of ability, to vindicate Ms Young's rights by reason of the illegal works undertaken by the neighbours by reason of an arguable res judicata following the dismissal of the Land and Environment Court proceedings; damages by reason of the costs and prejudice inherent in the need to take further proceedings to regularise the planning instruments and/or to obtain a remedy by way of reinstatement or remediation; and loss in the form of fees paid to the first respondent for which pursuant to the retainer in circumstances where it is alleged there was a total failure of consideration for the retainer (reference being there made to the alleged inadequacy of the settlement).

The alleged total failure of consideration for the solicitors' retainer is particularised as being that Ms Young:

... obtained no benefit whatever from the performance of the retainer agreement with [the first respondent] in that the Undertaking agreement by which she resolved her claim was not capable of being implemented and was not implemented and could not have provided any reasonable benefit if it was implemented.

Particulars of the fees claimed (on the basis of the alleged total failure of consideration) and related expenses included fees of $243,842.60 (noting that Ms Young had received the sum of $157,213.25 pursuant to the order that the neighbours pay her costs of the proceedings); fees charged for work in advancing the undertaking DA which "were wasted as the settlement did not provide for a solution"; bank interest on moneys borrowed to pay the solicitor's fees; and costs of and incidental to Ms Young seeking to mitigate her losses by: motion proceedings in the Land and Environment Court seeking to set aside the order dismissing the proceedings and District Court proceedings against the neighbours and the Council for damages.

Primary judgment

His Honour set out (at [134]-[136]) the content of the pleading of advocate's or witness immunity, respectively, in the defences that had at that stage been filed (albeit responding to an earlier version of the pleading). There is no dispute as to the accuracy of his Honour's recitation of the content of those defences.

As set out by his Honour, the respective pleas of immunity were as follows. The solicitors' defence filed on 14 April 2011 pleaded (at [90]) simply that advocate's immunity was a complete defence to the claim. The barrister's amended defence filed on 16 June 2011 pleaded (at [75]) in answer to the whole of the claim that he did not owe Ms Young an actionable duty in respect of the conduct pleaded "by virtue of the advocate's immunity, and on the grounds that the conduct was done by him as a barrister in court, or was work done out of court that was intimately associated with the conduct of a case in court". The engineer respondents' defence, filed on 4 May 2011, pleaded that their involvement was in the capacity of providing and giving expert evidence and that their conduct "in relation to the matters alleged ... was protected by the immunity enjoyed by experts in such circumstances". His Honour noted at [137] that Ms Young accepted that this pleading adequately raised the issue of witness immunity. There was no suggestion that his Honour was incorrect in that observation.

Advocate's immunity

His Honour noted (at [145]) that in substance Ms Young's claim against the lawyer respondents arose out of the conduct of the Land and Environment Court proceedings. His Honour broadly summarised the nature of the Common Law Division proceedings against those respondents as involving allegations of breach of duty "in failing to give appropriate advice about the proceedings, failing to join all of the appropriate parties to the proceedings, failing to seek appropriate orders in the proceedings and, finally, settling the proceedings on terms which were inappropriate, and disadvantageous to the plaintiff" ([146]).

His Honour referred to various authorities on the question of advocate's immunity (including Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Donnellan v Woodland [2012] NSWCA 433; Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689; Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585).

His Honour noted: (at [150]) that one of the two bases for the immunity was the principle of finality of litigation; (at [161]) that the immunity extended to the conduct of solicitors; (at [162]) that as a separate category, a claim for wasted costs attracted the immunity; and (at [163]) that, as a matter of principle, the immunity applied to claims made for damages arising from statutory causes of action (relying on Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 at [363] - [365]; MacRae v Stevens [1996] Aust Torts Reports 81-405).

His Honour addressed (from [164]-[166]) the question whether it was appropriate to determine the separate question raising the immunity issue on the basis of the pleadings, rather than after a trial of all of the facts, and concluded (at [167]) that in this case it was. In that regard, his Honour pointed out that the parties had consented to the determination of the separate questions at that stage of the proceedings (at [167]) and recorded his opinion that the pleadings on their face clearly identified the alleged negligence of the lawyer respondents in the conduct of the litigation (at [165]).

His Honour said at [166]:

The oral submissions of counsel for Ms Young also make it plain that the reach of the factual allegations underlying the alleged breaches of the duty of care, of the retainer and of the fiduciary duty (which it was intended to plead), encompass advice received about the commencement of proceedings, the drafting of the pleadings including the decision as to whether to include Warringah Council as a party, the conduct of the proceedings and, ultimately, the settlement of the proceedings on terms which were wholly disadvantageous, so it is alleged, to Ms Young.

His Honour was satisfied that each of the matters to which he had made reference fell comfortably within the boundaries of advocate's immunity, referring in particular to what was said by Gleeson CJ in Keefe v Marks (1989) 16 NSWLR 713 at [718E] as to the matters which would typically fall within the scope of the immunity ([168]).

His Honour's conclusion was that the conduct by the lawyer respondents of which complaint was made: occurred in the course of the court proceedings; was intimately connected to the conduct of those proceedings; and contributed to the result achieved in court by way of settlement ([169]); and hence that advocate's immunity provided a complete defence to the allegations made against the lawyer respondents ([170]).

His Honour, by way of obiter dicta since he had not permitted the amendment to Ms Young's pleading to include the allegations of breach of fiduciary duty, also addressed the issue as to whether advocate's immunity responded to a pleading of breach of fiduciary duty.

In that context, his Honour referred to the submission made for Ms Young that the immunity extended only to circumstances where the solicitor or barrister was acting in good faith. That submission was founded on the decision in Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436). His Honour noted that this proposition had been accepted in obiter dicta by Kennedy J in Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348, though without reasons and before D'Orta had been decided. His Honour also noted that, prior to Swinfen's case, it had been held in Fell v Brown, Esq. (1791) Peake 131; 170 ER 104 that gross negligence by a barrister attracted the advocate's immunity.

His Honour concluded that, in light of the clear statement in D'Orta as to the rationale for advocate's immunity being the principle of finality in litigation and the avoidance of re-litigation, there was "no basis to confine the availability of advocate's immunity only to circumstances where the lawyers were found to have acted in good faith"; noting that "[s]uch a restriction would be inconsistent with immunities granted to witnesses and judges" ([174]). Accordingly, his Honour said that even if the proposed amended statement of claim had been filed he would have found that the pleading of breach of fiduciary duty was defeated by advocate's immunity ([175]).

Witness immunity

As to witness immunity, his Honour again referred to various authorities, including: R v Skinner [1772] Lofft 54; 98 ER 529; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; D'Orta at [39], where witness immunity was said to extend to "preparatory steps"; and Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398.

At [185], his Honour described the claim made by Ms Young against Dr Perrens as being that he undertook work "pursuant to a retainer to advise and give evidence" issued to him by the solicitors on Ms Young's behalf. (Issue is taken by Ms Young with that description of the retainer.) His Honour went on to say (and this is also disputed by Ms Young) that:

[The fifth respondent] was asked to prepare an appropriate remediation plan for the purpose of presentation in the litigation, in circumstances where he was provided with the affidavit evidence of the respondents in the Land and Environment Court, and the application and points of claim filed by Ms Young.

His Honour then said (and Ms Young accepts that this is correct) that one of the orders sought by Ms Young in the Land and Environment Court proceedings was an order under s 124 of the Environmental Planning and Assessment Act for reinstatement of the neighbours' land and buildings but also said (and this is disputed) that the remediation plan was prepared "as evidence in support of" the reinstatement claim.

His Honour noted (Ms Young accepts correctly) at [186] that the fifth respondent's report and remediation plan were made available in the litigation and that he had participated in the expert conclave which produced the "Exhibit A" document containing details of drainage works which formed part of the consent settlement.

His Honour considered that it was clear from the pleadings that Ms Young's case against the fifth respondent was based on "bad advice, given in the course of proceedings, in his capacity as an expert witness which ultimately resulted in the settlement which occurred". His Honour said that, put differently, Ms Young's assertion was that if such advice had not been given a different final result would have been reached ([189]). On that basis, his Honour concluded that witness immunity was available to the fifth respondent ([190]).

As far as the engineering services company was concerned, his Honour noted (at [191]) that a person vicariously liable for the tortious conduct of another is protected by any immunity available to the alleged tortfeasor (referring to Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268; Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295). His Honour considered that to the extent that the company was sued as being directly liable any such suit would require the adducing of evidence to support the allegation that the fifth respondent's evidence was in some way directly liable for the outcome and that this would offend the underlying rationale of witness immunity ([192]). No issue is taken with this conclusion.

This is not in my opinion a case where advice is sought, unconnected to the conduct of litigation, of an hydrological engineer as to how best to remedy a drainage problem and that advice (assumed to be negligent for the purposes of this hypothesis) is later relied upon (perhaps unbeknownst to the engineer) by the client in agreeing to certain drainage works as a consequence of which the client incurs loss. This is a case where advice was sought in the context of a litigious dispute, and in the course of ongoing litigation, as to what would be appropriate works to remedy the problem that was the very subject of the litigation; the expert both participated in the discussions that led to the compromise and gave evidence at the hearing that followed acceptance of the compromise; and the alleged negligence is a breach of a duty to advise or warn Ms Young of matters going to the adequacy of the basis on which the proceedings were ultimately settled.

There is in my opinion a sufficient connection between the alleged negligent conduct in this case and the settlement of the proceedings to bring the conduct within the reach of the witness immunity, whether or not at the time the expert was retained the retainer contemplated the giving of expert evidence at the hearing.

If the matter is tested having regard to the rationale underlying witness immunity, for the complaint now made against the engineer respondents to be determined would require that the matters resolved in the settlement of the proceedings (such as the drainage consequences of the unauthorised construction of the retaining wall and whether, in the discretion of the court, the appropriate remedy would have been remediation or otherwise) now be explored in the context of the Common Law Division proceeding. In that sense, the basis of the settlement would fall to be re-opened and the rationale underlying the immunity would come into play.

Ground 3 is not made out. Even if his Honour did err in the characterisation of the retainer, ground 1 of the engineer respondents' notice of contention is made out because there was a sufficient connection between the negligence of which complaint is made (namely an omission to advise or warn as to matters integral to the manner in which the proceedings were settled) and the settlement of the proceedings.

Ground 4 of appeal in relation to engineer respondents - adequacy of reasons

The complaint as to adequacy of his Honour's reasons is that his Honour did not state the test which was the foundation for his reasoning as to witness immunity and did not otherwise show by the exposition of his reasoning what test he had applied, nor did he demonstrate that he had regard to the submissions of Ms Young.

As to the test applied by his Honour, it is clear from his Honour's reference to D'Orta and the basis on which his conclusion was expressed at [189], that his Honour was applying a test of connection between the conduct complained of and the litigation, analogous to that applicable in relation to advocate's immunity.

As to the complaint that his Honour did not demonstrate that regard was had to the submissions of Ms Young, his Honour indicated on 26 August 2013, when reserving judgment on both the amendment application and the separate questions, that if he disallowed the amendment he would determine the separate questions of law on the basis of the pleading to which the written submissions that had been filed had been directed (i.e., without oral submissions on those questions).

Ms Young's written submissions on witness immunity were reproduced in the Appeal Books. Those submissions place emphasis on the assertion that this was not an appropriate case summarily to dismiss the proceeding (see [2]-[7]; [20]). It is asserted (at [8]), in what appears to be an incomplete paragraph that there was no basis in the pleadings to assert that the work of the fourth respondent was "for the principal purpose". Attention is drawn to the fact that there is no allegation that the fifth respondent was being "attacked by reference to nay [sic] evidence he gave" ([11]); nor was it alleged that the "negligent omissions arose out of his status or work as a witness in court or at all" ([12]); it is submitted (plainly incorrectly) that the fifth respondent was not a witness at any time ([12]). It is disputed that "the report that he prepared pursuant to his retainer can be rationally connected as a matter of purpose to issues in the case at the trial that was to be conducted" ([13]). It is further disputed that "his report was for any purpose properly connected to the issues in the proceedings" ([13]) but that "those are matters for a hearing" ([14]).

True it is that his Honour did not expressly refer to the submission (at [15]) that witness immunity "depends for the most part upon the purpose for which the advice is given judged by reference to all of the facts of the particular case", in the context of which passages are quoted from Darker and from Palmer. Emphasis appears to be placed by Ms Young on the fact that there was no suggestion in her case that the advice given by the engineering respondents was as to the merits of her case nor that the particular advice was sought or given for the purpose of giving evidence ([19]).

The engineer respondents filed submissions in reply addressing each of the above points. His Honour considered the relevant authorities in his reasons; identified the conduct said to have been negligent on the part of the engineer respondents; and explained, albeit briefly, why it was that this fell within the scope of the immunity.

Ground 4 is not made out.

Grounds 5-7 of appeal in relation to engineer respondents - alleged misapprehension of pleaded claim/denial of natural justice

These complaints are dealt with together in Ms Young's submissions. It is contended that his Honour misapprehended her case for the purposes of the application before him and had regard to matters which were no part of the pleaded case against the engineer respondents.

In this regard, Ms Young maintains that the purpose of the advice work undertaken by the engineer respondents was not in order to prepare to give evidence; rather, it is said that the work was undertaken with a "fixed and firm intention" that the expert would not give evidence and for a purpose antithetical to the giving of evidence by him.

I have addressed the substance of this submission in dealing with grounds 1-3 above. It was open to his Honour to conclude that the engineer respondents' retainer, at the very least by the time of the expert conclave, extended to the participation by them at the experts' conclave (a matter that was pleaded in the amended statement of claim - [103]).

In any event, even if the original retainer did not extend, implicitly or otherwise, to the potential giving of expert evidence in the proceedings, the fact is that the fifth respondent did participate in the conclave and did give evidence in the proceedings and the complaint made against him is of failure to give advice or warnings up to the time of settlement but for which it is said the proceedings would not have been settled on the terms that they were.

I am not persuaded that his Honour misapprehended Ms Young's pleaded case but even if his Honour's characterisation of the retainer involves a misapprehension as to the pleading, nothing turns on this for the reasons set out above.

Further or in the alternative, Ms Young submits that his Honour erred in that she was denied natural justice by reason that his Honour had regard to matters which were no part of her pleaded case and did so in circumstances that she was denied the opportunity to respond thereto. Reference is made to the fact that she was denied the opportunity to respond generally by filing a reply, the provision of material particulars, tendering evidence and/or relevant submissions.

This complaint is without foundation. The fact that his Honour proceeded to determine the separate questions in advance of the filing of a reply does not involve any denial of natural justice in circumstances where the parties (and, relevantly, Ms Young) consented to such a course. Furthermore, the matters that it is said Ms Young would raise by way of reply had already been aired in the context of her unsuccessful application further to amend the statement of claim. His Honour was aware of those allegations and expressly addressed them in obiter observations in his reasons.

Ms Young had foreshadowed an intention to file evidence in relation to the summary dismissal applications that were listed for hearing on the same day as the separate questions and chose not to do so. As to the filing of submissions in reply, there had been written submissions filed and his Honour had made clear that he intended to proceed to determine the separate questions on those submissions. The suggestion seems to be that Ms Young was not aware that his Honour would reach the conclusion that the retainer of the expert was a retainer to advise and give evidence (as opposed to a retainer solely to advise) and that she should have had an opportunity to respond thereto. However, the fact that the fifth respondent had given evidence at the costs hearing was known to her and was part of the material before his Honour on the applications before him.

Nothing was said in submissions on the present application that shows that his Honour's decision was incorrect by reference to anything that might have been put in submissions, had there been a further opportunity for such submissions, on the part of Ms Young. As to the reference to lack of opportunity to put on "material particulars", it is by no means clear what is here contended.

Reference is made by Ms Young to the decision of Harrison J in Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510 and in particular the observations by his Honour at [33] to [34]:

Notwithstanding all of the above, there remain at least two related matters that in my opinion are particularly troubling in this case, and which directly intersect with the way in which I am able to dispose of this application. The first matter is the apparent or potential strength of the plaintiffs' allegations that the defendants have been negligent. As I have already commented, the plaintiffs would have been substantially better off if they had simply not defended the proceedings. The predicament that the judgment created for them is difficult to explain but even more difficult to understand. It is also difficult not to have a sense of unease about the possibility that an egregious error may go without the prospect of a remedy.

The second matter, however, is that it is not possible in a fair and reasoned way to assert the first without a proper inquiry. As was observed by Beazley and Giles JJ in Symonds v Vass [2009] NSWCA 139, the question of whether advocate's immunity applies in a given case cannot be determined without proper findings of negligence. Whether advocate's immunity applies depends upon a clear understanding of what occurred and of the respect or respects in which there was negligence, which is something that cannot and should not be determined on a hypothetical basis.

An appeal from that decision has recently been allowed (Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335). Suffice it to say that, even if it had been relevant to the availability of advocate's or witness immunity (which it is not) that the error was egregious, I could not, having regard to the pleadings in the present case, have formed any opinion such as that expressed by his Honour at [33] as to the strengths of the present case. Nor does the conclusion I have reached as to the outcome of this appeal cause me the same sense of unease as his Honour there felt.

As to what was said by his Honour in [34], Symonds was a case that was not determined on a summary basis. There, it was held that there were not sufficient findings as to breach of duty to enable the Court to conclude that the negligent conduct was within the reach of the immunity. In contrast, and apposite to the present situation, in Donnellan, Basten JA said at [259]-[260]; [272]:

It was held in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, that the immunity from proceedings brought by a former client against a legal practitioner alleging negligence (or a related cause of action) in relation to the conduct of litigation depends on the principle of finality. That principle is offended by a reconsideration of the circumstances in which a final judgment has been obtained, otherwise than by way of appeal from, or judicial review of, the earlier proceedings. (There may be other exceptions, such as a challenge to a judgment procured by fraud.) In circumstances where the immunity applies, to address the merit of the claim before considering the defence would be to subvert the very principle upon which the defence is premised.

Against that conclusion, it may be contended that the application of the immunity cannot be addressed until the precise scope of the dispute and the manner of its resolution has been determined. However, the availability of the defence cannot rest upon how the parties run the proceedings. If the defence is available, that must be ascertained from the pleadings and the potential scope of the proceedings so revealed. It is not to be assessed and determined only after the hearing of the merits, with its potential to diminish confidence in the proper administration of justice. (my emphasis)

...

... in accordance with the principles set out above, the question is not what happened at the trial below, but what might properly have been anticipated, based on the pleadings.

Barrett JA in that case expressed the opinion that if the defence of legal practitioner's immunity from suit is available to meet a client's allegation of negligence against a lawyer who acted for the client in litigation, there was much to be said as a matter of principle for the proposition that the client's negligence action should be disposed of solely on that ground ([276]) since otherwise there would arguably not be due regard for the principle of finality of litigation ([277]).

Each case must be considered on its own facts. If the impugned conduct can be adequately identified from the pleadings so as to permit a determination as to whether, as a matter of law, immunity is a complete defence thereto, then in an appropriate case that question can properly be dealt with as a separate question. In other cases, where the ambit or the conduct about which complaint is made is not clear from the pleadings, then a determination as to the disputed facts will be necessary.

As in any application for determination of a question of law as a separate question, it is necessary for the Court to consider whether it is appropriate for such an order to be made having regard to the principles that have been articulated in cases such as Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215. Matters to be taken into account in that regard include whether the resolution of the separate issue may have the effect of resolving or substantially narrowing the litigious controversies; the risk that this may merely result in an appeal from that decision creating a multiplicity of proceedings, delay and/or undesirable fragmentation of the proceedings; and the overriding principle mandated by s 56 of the Civil Procedure Act.

In the present case, a forensic decision was made by Ms Young (up until her belated attempt further to amend her pleading) not to plead fraud or conduct amounting to fraud in her statement of claim (perhaps to avoid assuming the onus of proving such serious allegations) and to leave until the time for filing of a reply any allegation amounting to mala fides as a basis for denying the applicability of advocate's immunity. A further forensic decision was made by her to consent to the determination as separate questions of law in advance of other issues in the proceedings of the questions as to the availability of the immunity defences. That meant that a final decision was made on those issues based on the pleadings as they then stood or were taken to stand.

Ms Young is bound by the consequences of those forensic decisions. In the event, the determination (correct in my opinion) that immunity is a complete answer to the various claims raised by Ms Young illustrates the public interest in the maintenance of such a defence; since, were such a defence not to have been considered until after a hearing on the merits, this would have the consequence that issues in part explored in the Land and Environment Court hearing (on the costs hearing) and settled following the settlement discussions that took place during the course of that hearing and with the assistance of the expert witnesses, would have been re-opened and re-litigated at no doubt considerable expense. That is precisely the result that the High Court in D'Orta emphasised should be avoided.

Notices of Contention

It is not necessary to consider the lawyer respondents' notice of contention or the balance of the engineer respondents' notice of contention, having regard to the conclusion reached above. Suffice it to say that if the matter had proceeded as a summary dismissal application, then the dispute as to the issue of the scope of the engineer respondents' retainer or the characterisation of the work performed by them may well have precluded a conclusion that the test set out in General Steel was made out. Similarly, the existence of arguments available to Ms Young as to the scope of the advocate's immunity might well have weighed in favour of not determining the proceedings on a summary dismissal basis. However, that was not the basis on which his Honour dealt with the matter and his Honour has not been shown to have erred in relation to the determination of the separate questions.

Conclusion

The appeal should be dismissed with costs.

EMMETT JA: Ms Margot Young sued two solicitors, a barrister and two engineers. The solicitors acted for her in proceedings in the Land and Environment Court and the barrister appeared for her in those proceedings. The engineers were retained by her to give expert advice and gave evidence on her behalf in the proceedings. The proceedings related to work being done by Ms Young's neighbours, Mr and Mrs King. The proceedings were settled on the basis of undertakings given to the Land and Environment Court by Mr and Mrs King concerning the work in question. For various reasons, the work has not been carried out.

Ms Young commenced proceedings in the Common Law Division. All defendants filed defences. Subsequently, each of the defendants filed notices of motion seeking summary dismissal of the proceedings. Two of the motions sought orders, in the alternative, that questions concerning advocate's immunity and witness immunity, raised by the defences, be determined separately.

On 2 August 2013, a judge of the Common Law Division ordered that three separate questions be heard and determined in advance of all other questions in the proceedings. No directions were given in relation to evidence concerning the separate questions. The orders appear to have been made on the basis that the question to be considered was whether the defences of advocate's or witness immunity were a complete answer to the statement of claim, on the assumption that all of the allegations in the statement of claim are made out.

An amended statement of claim was filed by Ms Young on 5 August 2013, pursuant to leave given on 2 August 2013. The summary dismissal applications proceeded in relation to that amended statement of claim, although no defences had been filed in relation to it. The primary judge also heard at the same time as the hearing of the summary dismissal applications a notice of motion by Ms Young seeking leave to file a further amended statement of claim, in which she sought to make allegations against the solicitors and the barrister of breach of fiduciary duty and lack of good faith.

In the course of the hearing of the motions on 23 August 2013, counsel for Ms Young applied for an adjournment to enable her to put on further evidence as to why the further amendment was required. The adjournment application was refused. The primary judge subsequently made orders, for reasons published on 27 September 2013, refusing leave to Ms Young to file a further amended statement of claim. His Honour also determined, in favour of the defendants, the questions raised in their notices of motion. As a consequence of that determination of the questions, his Honour concluded that the proceedings could not succeed against any of the defendants. Accordingly, his Honour dismissed the proceedings.

Ms Young has applied for leave to appeal from the refusal of the adjournment and the refusal of leave to file a further amended statement of claim. Those applications for leave should be refused for the reasons separately published (see Young v Hones (No 2) [2014] NSWCA 338).

On a proper analysis, in the light of the determination of the preliminary questions, the orders for dismissal of the proceedings are final orders. Leave is therefore not required to appeal from those orders.

Ms Young now complains that she has been deprived of the opportunity of pleading fraud, lack of good faith, or breach of fiduciary duty by way of reply. She says that advocate's and witness immunity would not be an answer to such claims. However, an allegation of fraud, lack of good faith, or breach of fiduciary duty involves a separate cause of action. It may well be that advocate's immunity and witness immunity would not be an answer to such claims. However, that is not a matter properly to be raised in reply. Those causes of action are quite different from the causes of action presently relied on by Ms Young, which are limited to negligence on the part of the lawyers in relation to the commencement and conduct of the proceedings in the Land and Environment Court and the advice and evidence given by the engineers. The issue of whether the preliminary questions were correctly answered by the primary judge must therefore be decided on the basis of the amended statement of claim as filed on 5 August 2013.

While it does not appear to have been raised as a ground of appeal, Ms Young, in her written submissions, complains that, notwithstanding that she consented to the procedure adopted by the primary judge, that procedure should not have been adopted. The course adopted by the primary judge, in directing the separate determination of the questions, was an undesirable course to adopt in the circumstances. The separate questions should not have been raised at that stage in the proceedings, because no defence had been filed to the pleading filed on 5 August 2013, and of course there had been no reply. Rather, his Honour appears to have proceeded on the basis that the defences to the earlier statement of claim could stand insofar as they raised the question of immunity. Nonetheless, Ms Young consented to the determination of the separate questions in advance of the closure of the pleadings.

Having regard to the manner in which the appeal was conducted on behalf of Ms Young, the task of deciding the substantive and important questions of law raised by the appeal has been made considerably more difficult. There is much to be said for remitting the matter to the Common Law Division for pleadings to be completed and for the proper formulation of questions for trial. That course, however, would involve the parties in considerably greater expense and no party contended for that course to be adopted.

I have now had the considerable advantage of reading in draft form the proposed reasons of Ward JA for dismissing the appeal. I agree with her Honour's analysis of the issues and her Honour's reasons for concluding that the appeal should be dismissed. In the absence of any application for a special order as to costs, I agree with the orders proposed by Ward JA.

**********

Decision last updated: 01 October 2014

Medium Neutral Citation:	Young v Hones [2014] NSWCA 337
Hearing dates:	2 May 2014
Decision date:	01 October 2014
Before:	Bathurst CJ at [1]; Ward JA at [41]; Emmett JA at [305]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - appeal - separate determination of question - whether the trial judge erred in determining separate questions of law prior to the close of pleadings, where the parties agreed to that course - whether trial judge erred in determining separate questions without reference to proposed statement of claim PROCEDURE - pleadings - where statement of claim did not allege fraud and defence pleaded advocate's immunity - whether bad faith can be alleged in reply to advocate's or witness immunity TORTS - negligence - advocate's and witness immunity - whether trial judge erred in articulating and applying tests for advocate's and witness immunity - whether the scope of advocate's immunity extends to acts or omissions in bad faith - whether the scope of advocate's and witness immunity extends to statutory causes of action TORTS - negligence - witness immunity - where expert witness participated in expert conclave and gave evidence at costs hearing - whether trial judge erred in finding expert retained for the purpose of giving evidence
Legislation Cited:	Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Fair Trading Act 1985 (Vic) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Abriel v Rothman [2004] NSWCA 40 Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510 Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 Bott v Carter [2012] NSWCA 89 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590 CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 Chamberlains v Lai [2006] NZSC 70; (2007) 2 NZLR 7 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Coco v The Queen [1994] HCA 41; (1994) 179 CLR 427 Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 Coshott v Barry [2009] NSWCA 34 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 Dawkins v Lord Rokeby (1873) LR 8 QB 255 Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Donellan v Watson (1990) 21 NSWLR 335 Donnellan v Woodland [2012] NSWCA 433 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; [1981] 1 All ER 715 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Fell v Brown, Esq. (1791) Peake 131; 170 ER 104 General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 Gray v Morris [2004] QCA 5; [2004] 2 Qd R 118 Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 Keefe v Marks (1989) 16 NSWLR 713 Kingston v Corker (1892) 29 LR Ir 364 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 M (a Minor) v Newnham London Borough Council [1995] 2 AC 633 MacRae v Stevens [1996] Aust Torts Reports 81-405 Marrinan v Vibart & Anor [1963] 1 QB 528 New Zealand Defence Force v Berryman [2008] NZCA 392 Palmer v Durnford Ford (1992) QB 483 Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Skinner [1772] Lofft 54; 98 ER 529 Rees v Sinclair [1974] 1 NZLR 180 Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stanton v Callaghan [2000] 1 QB 75 Stevens v Rowe (1880) 47 Am. Rep. 231 Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Watson v McEwan [1905] AC 480 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 X v Bedfordshire County Council [1995] 2 AC 633 Young v King [2004] NSWLEC 93 Young v King (No 4) [2012] NSWLEC 236 Young v Hones (No 2) [2013] NSWSC 1429 Young v Hones (No 2) [2014] NSWCA 338
Texts Cited:	Justice Blair et al, Bullen & Leake & Jacob's Precedents of Pleadings, (17th ed 2012, Sweet & Maxwell) Sir Jack Jacob and Iain Goldrein, Pleadings: Principles and Practice (1990, Sweet & Maxwell) The Hon Peter Young and Hugh Selby, Rose's Pleadings Without Tears in Australia (1997, Federation Press)
Category:	Principal judgment
Parties:	Margo Young (Appellant) Brian Keith Hones (First Respondent) Jason Hones (Second Respondent) Ian Hemmings (Third Respondent) Hughes Trueman Pty Ltd (Fourth Respondent) Stephen John Perrens (Fifth Respondent)
Representation:	Counsel: RD Newell (Appellant) JC Kelly SC with MJ Darke (First and Second Respondents) DT Miller SC with Ms PA Horvath (Third Respondent) DB Studdy SC with SE Gray (Fourth and Fifth Respondents) Solicitors: LC Muriniti & Associates (Appellant) Colin Biggers & Paisley (First and Second Respondents) Moray & Agnew (Third Respondent) Kennedys (Fourth and Fifth Respondents)
File Number(s):	CA 2013/00301763
Publication restriction:	Nil
Decision under appeal	Citation: Young v Hones (No 2) [2013] NSWSC 1429 Date of Decision: 2013-09-27 00:00:00 Before: Garling J File Number(s): SC 2010/00041007