HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJRYAN D'ORTA-EKENAIKE APPLICANT
AND
VICTORIA LEGAL AID & ANOR RESPONDENTS
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
10 March 2005
M61/2003ORDER
1. Special leave to appeal granted.
2.Appeal treated as instituted and heard instanter and dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation:
N A Moshinsky QC with V Ruta for the applicant (instructed by BTE Flynn Murone & Co)
D F Jackson QC with D Masel for the first respondent (instructed by Monahan + Rowell)
N J Young QC with D F Hore-Lacy SC, B G Walmsley SC, G A Devries and G M Hughan for the second respondent (instructed by Beckwith Cleverdon Rees)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
D'Orta-Ekenaike v Victoria Legal Aid
Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate's immunity available to respondents – Whether advocate's immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor's liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate's immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client's complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
Legal Profession Practice Act 1958 (Vic), s 10.
Legal Practice Act 1996 (Vic), s 442.
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ. There are two principal issues in this matter. First, should the Court reconsider its decisions in Giannarelli v Wraith[1] that:
(a)at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court; and
(b)in 1891 (the date at which the extent of the liability of a barrister was fixed by the Legal Profession Practice Act 1958 (Vic) ("the LPPA")) an advocate was immune from suit for allegedly negligent acts or omissions committed in court in the conduct of civil or criminal litigation, or committed out of court but leading to a decision affecting the conduct of a case in court?
Secondly, does the immunity apply to the acts or omissions of a solicitor which, if committed by an advocate, would be immune from suit?
[1](1988) 165 CLR 543.
The issues arise in an application for special leave referred for argument, as on appeal, before the whole Court. The application for special leave is brought by a client (the applicant) whose action for negligence against the respondents was summarily terminated on the basis that his statement of claim disclosed no arguable cause of action.
Special leave should be granted but the appeal dismissed with costs. Giannarelli should not be reopened. The immunity applies to the particular acts or omissions alleged to have been committed by the second respondent and by an employee of the first respondent.
The facts alleged by the applicant
In February 1996, the applicant was charged with rape. He sought legal assistance from Victoria Legal Aid ("VLA"), a body corporate established by s 3 of the Legal Aid Act 1978 (Vic). VLA retained the second respondent (Mr McIvor) as the applicant's barrister to appear for the applicant in the Magistrates' Court at the committal proceeding to be held under the Magistrates' Court Act 1989 (Vic)[2].
[2]s 56.
At the committal proceeding, the applicant, although not bound to enter a plea, entered a plea of guilty. He was committed for trial in the County Court of Victoria.
In February 1997, the applicant was presented for trial. On arraignment he entered a plea of not guilty and stood trial. His guilty plea at the committal proceeding was led in evidence. He was convicted and sentenced to three years' imprisonment.
The applicant appealed against his conviction to the Court of Appeal of Victoria. That Court (Winneke P, Brooking JA, Vincent AJA) set aside the verdict, quashed the conviction and directed a new trial[3] on the ground that, although evidence of the applicant's guilty plea at committal had been properly admitted in evidence[4], the trial judge had failed to give sufficient directions about the use that might be made of the plea[5].
[3]R v D'Orta-Ekenaike [1998] 2 VR 140.
[4][1998] 2 VR 140 at 146.
[5][1998] 2 VR 140 at 147.
On the applicant's retrial, evidence of his guilty plea at committal was not admitted. He was acquitted.
In 2001, the applicant commenced an action against VLA and the barrister, Mr McIvor, in the County Court. The applicant alleged that he had retained VLA as his solicitor to act on his behalf in defending the charge of rape. (The statement of claim does not allege any consideration for this retainer but that may be ignored. It will be assumed that the applicant alleged that there was a contract of retainer.) He alleged that VLA and the barrister each owed him duties to exercise reasonable skill, care and diligence in acting for him. The pleading is at least consistent with the applicant alleging that the duties were either contractual or duties of care imposed by law, or both.
The applicant alleged that the person having the carriage of the matter at VLA (Ms Robyn Greensill) and the barrister, separately or together, advised him that:
(a) he "did not have any defence to the charge";
(b)if he entered a guilty plea at committal "he would receive a suspended sentence"; and
(c)if he did not plead guilty at committal but contested the charge at trial and was found guilty, "he would receive a custodial penalty".
This advice was said to have been tendered at a conference in the barrister's chambers held two days before the date appointed for the committal proceeding and again at a further conference at the Magistrates' Court on the day of, but before the commencement of, the committal proceeding. The applicant alleged that "undue pressure and influence" was exerted upon him at this second conference, by both Ms Greensill "on behalf of the VLA" and by Mr McIvor and that, as a result, he entered a guilty plea.
He alleges that, by reason of the breaches of duty by VLA and the barrister, he suffered, and continues to suffer, loss and damage. The particulars given of that loss and damage are loss of liberty during the period of his imprisonment between conviction at his first trial and subsequent quashing of that conviction, loss of income during that period and beyond (because of his psychological condition), psychotic illness, and the costs and expenses of the appeal, the retrial and the civil proceeding.
The steps in the action against the respondents
Both respondents filed defences to the applicant's statement of claim in which each put in issue many of the allegations made. It is, however, not necessary to examine those issues. Both respondents applied for orders terminating the proceedings summarily. The primary judge (Judge Wodak) ordered that the proceeding be forever stayed. His Honour held that the advice allegedly given at each conference, both by Ms Greensill and Mr McIvor, "was so intimately connected with the conduct of the trial as to come within the immunity defence principle". He further held that this defence was available both to VLA and to the barrister and that the applicant's proceeding was, therefore, doomed to fail.
The applicant sought leave to appeal to the Court of Appeal of Victoria. That Court (Winneke P and Buchanan JA) concluded that it was not shown that the decision of Judge Wodak was wrong, or attended by sufficient doubt to warrant a grant of leave, and accordingly refused leave to appeal. It is from that order that the applicant seeks special leave to appeal.
Statutory regulation of the Victorian legal profession
At the time Giannarelli was decided, and at the time of the events giving rise to the applicant's proceeding against VLA and Mr McIvor, the Victorian legal profession was regulated by the LPPA. The LPPA, although amended from time to time, was, in important respects, a consolidating statute enacted at the time of the 1958 consolidation of Victorian legislation. Indeed, in one critical respect, the LPPA was the re‑enactment of legislation first passed in 1891 and subsequently re‑enacted in the successive consolidations of 1915, 1928 and 1958.
Section 10 of the LPPA provided that:
"(1) Every barrister shall be entitled to maintain an action for and recover from the solicitor or client respectively by whom he has been employed his fees costs and charges for any professional work done by him.
(2) Every barrister shall be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on the twenty‑third day of November One thousand eight hundred and ninety‑one liable to his client for negligence as a solicitor."
That section had its origin in s 5 of the Legal Profession Practice Act 1891 (Vic) ("the 1891 Act"). Section 5 of the 1891 Act provided:
"Every barrister shall in future be entitled to maintain an action for and recover from the solicitor or client respectively by whom he has been employed his fees costs and charges for any professional work done by him. And every barrister shall in future be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor is now liable to his client for negligence as a solicitor."
The 1891 Act was assented to on 23 November 1891 but came into operation on 1 January 1892[6]. It provided that those previously admitted as barristers were, by the 1891 Act, admitted as solicitors and were to be entitled to practise as solicitors[7] and, conversely, that those previously admitted as solicitors were admitted as barristers and were to be entitled to practise as such[8]. After the passing of the 1891 Act, no person was to be admitted to practise as a barrister or a solicitor solely but should be admitted by the Supreme Court both as a barrister and a solicitor[9].
[6]s 1.
[7]s 3.
[8]s 4.
[9]s 10.
When the 1891 Act was consolidated and re‑enacted in 1915, as the Legal Profession Practice Act 1915, reference to the date of assent of the 1891 Act was substituted for the words "is now liable". Thus, as consolidated, s 10 of the Legal Profession Practice Act 1915 provided:
"Every barrister shall be entitled to maintain an action for and recover from the solicitor or client respectively by whom he has been employed his fees costs and charges for any professional work done by him. And every barrister shall in future be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on the twenty‑third day of November One thousand eight hundred and ninety‑one liable to his client for negligence as a solicitor."
Although subsequently divided into two sub‑sections, the section was re‑enacted substantially in its 1915 form in 1928 and again in 1958.
Despite the evident legislative intention in the 1891 Act that the legal profession in Victoria should be fused, the amalgamation of the two branches has never been complete. Since the Victorian Bar was first established in 1884, there have always been practitioners in Victoria who, in accordance with voluntary arrangements undertaken on their signing the Roll of Counsel maintained by the Victorian Bar, have chosen to practise solely as barristers. Subject to some exceptions, those practitioners have agreed to act in litigious matters only on the instructions of a solicitor, and have agreed that each is duty bound to accept a brief in the courts in which he or she professes to practise, if offered a proper professional fee to do so, unless there are special circumstances to justify refusing to accept the particular brief[10]. That latter rule (usually referred to as the "cabrank rule") is now set out in the Australian Bar Association Model Rules[11] and Rules of Conduct of The Victorian Bar Inc[12].
[10]Gowans, The Victorian Bar: Professional Conduct, Practice and Etiquette, (1979) at 66, referring to the minutes of the meeting of the Bar Council of 3 November 1930.
[11]Rules 85‑92.
[12]Rules 86-90, 92 and 113.
In addition, however, at all times since the 1891 Act, there have been practitioners in Victoria who, although not members of the Victorian Bar, have had extensive practices as advocates on the direct instructions of lay clients, both in courts of summary jurisdiction and in the superior courts. Thus while the profession in Victoria has for the most part been divided between those practising solely as barristers and those practising solely as solicitors, the division has not been absolute and it is a division that has come about as a result of voluntary arrangements undertaken by those who, together, have constituted the Victorian Bar.
These matters are of more than historical importance. First, their appreciation is necessary to a proper understanding of the 1891 Act and its legislative progeny which, at the relevant times, was s 10(2) of the LPPA. Secondly, they direct attention away from any consideration of special privileges or disabilities thought to attach to the profession of barrister, as that profession has been, or may now be, understood and organised in England and Wales, or in States where the legal profession is divided along lines similar to those in England and Wales.
This second point is emphasised when it is recognised that the legal professions in States other than Victoria have been organised and regulated differently. It is not necessary to describe, in any detail, either the present or the past organisation or regulation of the legal professions in those other States. In some, at various times, there has been only a small group of advocates who have practised solely or principally as barristers. In those States there have been many cases where a barrister, whose principal place of practice has been based in another State, but who has been admitted to practise in the first State, has advised about, or appeared in, litigation in the courts of that first State. Often enough, interstate counsel have appeared with one or more local practitioners as junior counsel. In such cases, the junior was often a partner or employee solicitor of the firm of instructing solicitors and a practitioner who often appeared in the superior courts of the State.
What these considerations, and the other historical matters described above, reveal is that attention must be directed to the nature of the role which an advocate (whether barrister, solicitor or both barrister and solicitor) plays in the judicial system.
The decision in Giannarelli
As indicated earlier, there are two aspects of the Court's decision in Giannarelli which are important in the present matter. First, there was a question about the proper construction of s 10(2) of the LPPA; secondly, there was a question about the common law immunity from suit of participants in the judicial process.
A majority of the Court concluded[13] that s 10(2) of the LPPA did not subject a barrister to a common law duty of care in negligence. As Wilson J, with whose reasons in this respect Mason CJ agreed, pointed out[14], s 10(2) of the LPPA was a "fixed‑time" provision[15]; it required consideration of the extent to which, in 1891, a solicitor would have been liable to a client for negligence. The Court in Giannarelli divided over whether the relevant liability to be considered was confined to the liability of a solicitor as advocate or extended to the liability of a solicitor "in the exercise of his functions as a solicitor"[16]. The majority preferred the view that the comparison required by s 10(2), when considering whether an advocate was liable for negligence committed in court or in work intimately associated with work in court, was with the liability that a solicitor‑advocate would have had to a client in 1891 in such circumstances.
[13](1988) 165 CLR 543 at 561 per Mason CJ, 570 per Wilson J, 587 per Brennan J, 590 per Dawson J.
[14](1988) 165 CLR 543 at 567.
[15]Bennion, Statutory Interpretation, 4th ed (2002) at 762.
[16](1988) 165 CLR 543 at 604 per Toohey J.
For our own part, we prefer the construction, adopted by the majority in Giannarelli, that neither s 5 of the 1891 Act nor s 10(2) of the LPPA led to the result that, although in 1891 a solicitor‑advocate would have been immune from suit for in‑court negligence, either the 1891 Act or its subsequent re‑enactments made a barrister liable to suit for such negligence. So to read the relevant provisions of either the 1891 Act or the LPPA would give little or no effect to the words "liable ... to the same extent". But in the end, chief significance must be attached to the fact that a disputed question of construction was finally resolved in Giannarelli. This Court should not depart from that decision without powerful reasons to do so. A mere preference for one construction over the other would not suffice.
The second aspect of the decision in Giannarelli which is now important is the conclusion reached about the common law. The conclusion that, at common law, an advocate cannot be sued by his or her client for negligence in the conduct of a case, or in work out of court which is intimately connected with the conduct of a case in court, was consistent with the earlier decisions of the House of Lords in Rondel v Worsley[17] and Saif Ali v Sydney Mitchell & Co[18]. No doubt because the arguments advanced in Giannarelli were framed against the background of those two English decisions, a number of matters were considered in the reasons in Giannarelli that have application, or at least greater application, in a divided legal profession where only barristers have a right of audience in superior courts. And because the particular claims made in Giannarelli against the barristers who were sued were framed or treated as claims in negligence, not claims for breach of contract, much of the discussion in the reasons in Giannarelli is directed at the tort of negligence. But, as these reasons will seek to demonstrate, the decision in Giannarelli must be understood having principal regard to two matters:
(a)the place of the judicial system as a part of the governmental structure; and
(b)the place that an immunity from suit has in a series of rules all of which are designed to achieve finality in the quelling of disputes by the exercise of judicial power.
Although reference is made in Giannarelli to matters such as:
(a)the supposed connection between a barrister's immunity and an inability to sue the client for professional fees[19];
(b)the potential competition between the duties which an advocate owes to the court and a duty of care to the client[20]; and
(c)the desirability of maintaining the cabrank rule[21];
each was, and should be, put aside as being, at most, of marginal relevance to whether an immunity should be held to exist. The first of these matters, even if it were well founded (and it is not), would be irrelevant to the liability of a solicitor‑advocate and there is no sound basis for distinguishing between advocates according to whether the advocate does or does not have a contract with the client.
[17][1969] 1 AC 191.
[18][1980] AC 198.
[19](1988) 165 CLR 543 at 555 per Mason CJ; In re Le Brasseur and Oakley [1896] 2 Ch 487 at 494; Robertson v Macdonogh (1880) 6 LR Ir 433 at 438; cf Rondel v Worsley [1969] 1 AC 191 at 260‑264.
[20](1988) 165 CLR 543 at 556 per Mason CJ, 572‑573 per Wilson J; cf Rondel v Worsley [1969] 1 AC 191 at 231, 251, 272‑273, 282.
[21](1988) 165 CLR 543 at 572‑573 per Wilson J; Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 221.
The second matter assumes, wrongly, that the duties might conflict. They do not; the duty to the court is paramount. But, more than that, the question of conflicting duties assumes that the only kind of case to be considered is one framed as a claim in negligence. That is not so. The question is whether there is an immunity from suit, not whether an advocate owes the client a duty of care.
The third consideration, the cabrank principle, is also irrelevant to the solicitor‑advocate. Highly desirable as the maintenance of the cabrank rule is in ensuring that the unpopular client or cause is represented in court, it does not provide a sufficient basis to justify the existence of the common law immunity.
Likewise, it is as well to mention at this point a further consideration that must be put aside as irrelevant. It may readily be accepted that advocates must make some decisions in court very quickly and without pausing to articulate the reasons which warrant the choice made. But so too do many others have to make equally difficult decisions. Reference to the difficulty of the advocate's task is distracting and irrelevant.
Further, although not irrelevant, we would consider the "chilling" effect of the threat of civil suit[22], with a consequent tendency to the prolongation of trials[23], as not of determinative significance in deciding whether there is an immunity from suit. That is not to say, however, that the significance, or magnitude, of such effects should be underestimated. But while they are considerations that do not detract from the importance of the immunity, we do not consider that they provide support in principle for its existence.
[22](1988) 165 CLR 543 at 579 per Brennan J.
[23](1988) 165 CLR 543 at 557 per Mason CJ, 594 per Dawson J.
Chief attention must be given to the nature of the judicial process and the role that the advocate plays in it.
The judicial process as an aspect of government
In Giannarelli, Mason CJ said[24] that "the barrister's immunity, if it is to be sustained, must rest on considerations of public policy". His Honour explained[25] that the term "immunity" was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and "the injury to the public interest that would arise in the absence of immunity"[26]. Of the various factors advanced to justify the immunity, "the adverse consequences for the administration of justice which would flow from the re‑litigation in collateral proceedings for negligence of issues determined in the principal proceedings" (emphasis added)[27] was held to be determinative[28]. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation.
[24](1988) 165 CLR 543 at 555.
[25](1988) 165 CLR 543 at 554‑555.
[26]Gibbons v Duffell (1932) 47 CLR 520 at 529 per Starke J.
[27](1988) 165 CLR 543 at 555.
[28]See also (1988) 165 CLR 543 at 574 per Wilson J, 579 per Brennan J, 595‑596 per Dawson J.
To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the "judicial branch of government" is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.
As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it is, in Quick and Garran's words[31], "the third great department of government".
[29]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267‑268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[30]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[31]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 719.
Finality
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry[32] and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud[33]. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was
finally decided in the original proceeding[34]. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding[35].[32]DJL v Central Authority (2000) 201 CLR 226.
[33]DJL v Central Authority (2000) 201 CLR 226 at 244‑245 [35]‑[38].
[34]See, for example, Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155; Blair v Curran (1939) 62 CLR 464; Jackson v Goldsmith (1950) 81 CLR 446; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353.
[35]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature[36] and availability of appeals, rules about what points may be taken on appeal[37] and rules about when further evidence may be called in an appeal (in particular, the so‑called "fresh evidence rule"[38]) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe[39]: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial".
[36]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73.
[37]Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; O'Brien v Komesaroff (1982) 150 CLR 310; Coulton v Holcombe (1986) 162 CLR 1.
[38]Orr v Holmes (1948) 76 CLR 632; Ratten v The Queen (1974) 131 CLR 510 at 516‑517 per Barwick CJ; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.
[39](1986) 162 CLR 1 at 7.
The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.
Other immunities from suit
Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected.
This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries[40].
[40]As to witnesses, see, for example, Jerom and Knight's Case (1588) 1 Leo 107 [74 ER 99]; Damport v Sympson (1596) Cro Eliz 520 [78 ER 769]; Harding v Bodman (1617) Hut 11 [123 ER 1064]; Eyres v Sedgewicke (1620) Cro Jac 601 [79 ER 513]. As to judges, see, for example, Windham v Clere (1589) Cro Eliz 130 [78 ER 387]; Floyd v Barker (1607) 12 Co Rep 23 [77 ER 1305]; Metcalfe v Hodgson (1633) Hut 120 [123 ER 1143]; Nichols v Walker (1635) Cro Car 394 [79 ER 944].
From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence[41] or that witnesses or parties had conspired together[42] to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant[43]. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court[44]. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps[45]. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation[46]:
"The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them." (footnote omitted)
[41]See, for example, Revis v Smith (1856) 18 CB 126 at 140, 141, 144 [139 ER 1314 at 1319‑1321]; Collins v Cave (1859) 4 H & N 225 at 229, 230, 235 [157 ER 824 at 826‑828]; Henderson v Broomhead (1859) 4 H & N 569 [157 ER 964].
[42]Cabassi v Vila (1940) 64 CLR 130.
[43]Munster v Lamb (1883) 11 QBD 588; Gibbons v Duffell (1932) 47 CLR 520 at 525.
[44]Cabassi v Vila (1940) 64 CLR 130.
[45]Watson v M'Ewan [1905] AC 480; Gibbons v Duffell (1932) 47 CLR 520 at 525.
[46](1997) 189 CLR 520 at 565.
The development of judicial immunity was more complex. It was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth[47]. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction[48]. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments.
[47]Holdsworth, "Immunity for Judicial Acts", (1924) Journal of the Society of Public Teachers of Law 17.
[48]Sirros v Moore [1975] QB 118; Rajski v Powell (1987) 11 NSWLR 522.
Statements can be found in the cases that the immunity of witnesses serves to encourage "freedom of expression" or "freedom of speech" so that the court will have full information about the issues in the case[49]. Statements also can be found[50] that place the immunity of those who participate in court proceedings on the desirability of avoiding baseless actions being brought against those who were merely discharging their duty, but these considerations are advanced in answer to another kind of argument. As Fry LJ said in Munster v Lamb[51]:
"Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?"
The answer proffered (that it is more necessary to prevent the baseless action than provide for the kind of case described) may well suffice to meet the point. But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires relitigation of the matter out of which the complaint arises.
[49]Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 679 per Lord Steyn, 697 per Lord Hoffmann.
[50]For example, Munster v Lamb (1883) 11 QBD 588 at 607 per Fry LJ.
[51](1883) 11 QBD 588 at 607.
In R v Skinner[52], Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill[53] that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re‑agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government[54].
[52](1772) Lofft 54 at 56 [98 ER 529 at 530].
[53](1997) 191 CLR 204 at 239 per Gummow J.
[54]cf Gibbons v Duffell (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ.
The judicial process as an aspect of government – conclusions
The "unique and essential function" of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law[55]. Once a controversy has been quelled, it is not to be relitigated. Yet relitigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client.
[55]Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ.
The question is not, as may be supposed[56], whether some special status should be accorded to advocates above that presently occupied by members of other professions. Comparisons made with other professions appear sometimes to proceed from an unstated premise that the law of negligence has been applied, or misapplied, too harshly against members of other professions, particularly in relation to factual findings about breach of duty, but that was not a matter argued in this Court and should, in any event, be put to one side. Nor does the question depend upon characterising the role which the advocate (a private practitioner) plays in the administration of justice as the performance of a public or governmental function.
[56]cf Arthur J S Hall v Simons [2002] 1 AC 615 at 680 per Lord Steyn.
Rather, the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be relitigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.
A justification based on finality has as much force today as it did when Giannarelli was decided. Given this, what changes have occurred since the decision in Giannarelli which would necessitate a reconsideration of that decision?
Three matters will be considered. First, there have been some changes to statutes that must be noticed. Secondly, there has been the decision of the House of Lords in Arthur J S Hall & Co v Simons[57] that the public interest in the administration of justice in England and Wales no longer required that advocates enjoy immunity from suit for alleged negligence in the conduct of civil or criminal proceedings. Thirdly, it will be necessary to say something shortly about the experience in other jurisdictions.
[57][2002] 1 AC 615.
Statutory changes since Giannarelli
The LPPA was repealed by the Legal Practice Act 1996 (Vic) ("the Practice Act"). The relevant provisions of the Practice Act came into operation on 1 January 1997. Section 442 of the Practice Act provided that "[n]othing in this Act abrogates any immunity from liability for negligence enjoyed by legal practitioners before the commencement of this section".
That section had its origins in a report of the Law Reform Commission of Victoria[58] in which the Commission devoted a chapter to discussing the advocate's immunity. That discussion proceeded from the premise[59] that "neither barristers nor solicitors are liable for losses arising from negligent 'in‑court' advocacy work". The Commission recommended[60] that this immunity be removed by legislation. It was said[61] that:
"The legislation should provide that actions arising out of alleged negligence in the course of criminal proceedings cannot be commenced until the conviction or sentence in the criminal proceeding has been set aside or varied on an appeal or on a petition for mercy."
[58]Report No 48, Access to the Law: Accountability of the Legal Profession, July 1992.
[59]Report No 48, par 50 at 23.
[60]Report No 48 at 40.
[61]Report No 48 at 40.
As s 442 of the Practice Act shows, the Commission's recommendation was not adopted. Instead, the Explanatory Memorandum for the Practice Bill said that what was to become s 442 of the Practice Act "preserves the common law immunity for advocates in respect of work in a court or tribunal or work intimately connected with it" (emphasis added). Thus, although s 442 speaks of "any" immunity not being abrogated, it is clear from the course of events described that it was enacted on the assumption that it would preserve an existing immunity.
It is necessary to notice some other provisions of the Practice Act. Section 64 sets out what are called the "general principles of professional conduct". They include that a legal practitioner should, in the service of a client, act honestly and fairly in the client's best interests and with all due skill and diligence. They also include the principle that a legal practitioner should, in the service of a client, act so as not to engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law. There is, therefore, statutory recognition of obligations which all legal practitioners, including advocates, owe to their clients and to the court.
These general principles are reflected in "Practice rules"[62] made by recognised professional associations ("RPAs") to regulate the professional conduct of legal practitioners to whose disciplinary supervision the practitioners are assigned. Part 5 of the Practice Act[63] provides for the resolution of disputes between clients and legal practitioners and for the disciplinary arrangements governing practitioners. One form of dispute with which these provisions deal[64] is a claim that a person has suffered pecuniary losses as a result of an act or omission by a legal practitioner in the provision of legal services to the person (other than loss in respect of which a claim lies against the Fidelity Fund established under the Practice Act). One form of disposition of such a complaint is an order[65] by the Legal Profession Tribunal established under the Practice Act that the legal practitioner pay to the client a specified sum as compensation not exceeding $15,000. Section 133(2) of the Practice Act provides that the making of a compensation order does not affect the right of a client to recover damages for pecuniary loss but the order must be taken into account by a court making an award of damages. Thus the Practice Act provides for the making of some, limited, orders against a practitioner to compensate a client for loss occasioned by an act or omission of the practitioner.
[62]Legal Practice Act 1996 (Vic), s 72.
[63]ss 122‑172.
[64]s 122(1)(b).
[65]s 133(1)(a).
Some other legislative events must be noticed. Since 1999, State legislatures have given close attention to what has been called "tort law reform". In particular, close attention has been paid to the law of negligence, and a number of statutes have been passed since 2000 which have dealt with that general subject[66]. In none of that legislation has there been any reference to the immunities from suit of advocates, witnesses or judges.
[66]See, for example, Civil Liability Act 2002 (NSW), Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic), Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic), Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic).
Nothing in any of the legislative steps taken since Giannarelli suggests that the Court should now reconsider the decision reached in that case. On the contrary, the enactment of s 442 of the Practice Act suggests that the Court should not do so. One State legislature, directly confronted with a recommendation that the law should be changed to the form for which the applicant now contends, chose not to do so. That legislature expressly preserved the state of the law as it was determined in Giannarelli, supplementing that with a limited right to compensation in cases (among others) where a practitioner had failed to act with due skill and care.
This notwithstanding, the applicant contends that the House of Lords' decision in Arthur J S Hall v Simons shows why the common law in Australia should be restated.
Arthur J S Hall v Simons
The House of Lords has restated the common law about advocates' immunity, at least for England and Wales. (Perhaps there may remain some question[67] whether the law in Scotland still accords with what was decided in Rondel v Worsley and Saif Ali v Sydney Mitchell & Co but that question need not be examined.) The House was divided in opinion in some aspects of the decision. All of their Lordships concluded[68] that reconsideration of advocates' immunity was appropriate in the light of changes in the law of negligence, the functioning of the legal profession, the administration of justice, and public perceptions. But, as Lord Millett pointed out[69], much also turned on the then imminent coming into operation of the Human Rights Act 1998 (UK) and the consequent application of Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
[67]Anderson v HM Advocate 1996 JC 29; Wright v Paton Farrell 2002 SCLR 1039.
[68][2002] 1 AC 615 at 678 per Lord Steyn, 684 per Lord Browne‑Wilkinson, 688 per Lord Hoffmann, 709‑710 per Lord Hope of Craighead, 728 per Lord Hutton, 736‑737 per Lord Hobhouse of Woodborough, 752‑753 per Lord Millett.
[69][2002] 1 AC 615 at 753. See also at 734‑735 per Lord Hutton.
Three members of the House[70] would have retained the immunity in relation to criminal proceedings. A majority of the House, however, concluded[71] that since a collateral challenge in civil proceedings to a criminal conviction was prima facie an abuse of process, and ordinarily such an action would be struck out, an immunity from suit was not required to prevent collateral attacks on criminal decisions.
[70][2002] 1 AC 615 at 723‑724 per Lord Hope of Craighead, 735 per Lord Hutton, 752 per Lord Hobhouse of Woodborough.
[71][2002] 1 AC 615 at 679‑680 per Lord Steyn, 684‑685 per Lord Browne‑Wilkinson, 706 per Lord Hoffmann, 727, 730 per Lord Hutton, 753 per Lord Millett.
The conclusion about collateral challenges and abuse of process was critical to the outcome in Arthur J S Hall v Simons. It will be necessary to consider that topic. Before doing so, however, it is as well to make two other points of basic importance.
First, this Court decided, as long ago as 1963[72], that it would no longer "follow decisions of the House of Lords, at the expense of our own opinions and cases decided here". The separate development of the common law in Australia over the last 40 years, coupled with the considerable, and now profound, changes in the constitutional and other arrangements to which the United Kingdom is party, such as the various European and other international instruments to which it is, but Australia is not, a party, can only reinforce that view.
[72]Parker v The Queen (1963) 111 CLR 610 at 632.
Secondly, and no less fundamentally, where a decision of the House of Lords is based, as is its decision in Arthur J S Hall v Simons, upon the judicial perception of social and other changes said to affect the administration of justice in England and Wales (or the United Kingdom more generally) there can be no automatic transposition of the arguments found persuasive there to the Australian judicial system. Especially is that so when the decision may well be thought to have been significantly affected by the European considerations to which Lord Millett referred. In addition, of course, account must be taken not only of the fact that the legal profession is organised differently in the several States and Territories of Australia, but also of the fact that in none of those States or Territories is the profession organised in precisely the same way as it is in England and Wales. Further, although in the end we do not think this determinative, the rules to which reference is made in Arthur J S Hall v Simons about abuse of process and summary termination of civil proceedings may differ in some respects from those that apply in some Australian jurisdictions.
Experience in other jurisdictions
Care must also be exercised in dealing with the applicant's contention that advocates' immunity has not been thought to be a necessary part of the law of other jurisdictions – in particular, Canada, New Zealand or the several jurisdictions in the United States of America. In Canada, a single judge of the Ontario High Court of Justice, Krever J, held[73] in 1979 that an advocate was not immune from suit. It appears that this decision has not since been challenged in Canada. In New Zealand, the High Court held[74] that it was bound by earlier authority to hold that there is an advocates' immunity. On appeal, the Court of Appeal of New Zealand reversed that decision[75]. Whether there will be an appeal to the Supreme Court of New Zealand is not yet known. In the United States of America, it is said that there is no advocates' immunity.
[73]Demarco v Ungaro (1979) 95 DLR (3d) 385.
[74]Lai v Chamberlains [2003] 2 NZLR 374.
[75]Lai v Chamberlains unreported, Court of Appeal of New Zealand, 8 March 2005.
But in each of these jurisdictions it is necessary to look beyond the bare statement that there is, or is not, an advocates' immunity. For example, in both
Canada[76] and the United States[77] a prosecutor is immune from suit[78]. And in the United States absolute immunity for judges is the rule[79] despite the criticism that sometimes is directed at the rule[80]. Whether a public defender is immune[81] may remain a matter of controversy.[76]Nelles v Ontario [1989] 2 SCR 170.
[77]Gregoire v Biddle 177 F 2d 579 (2nd Cir 1949) cert den 339 US 949 (1950); Imbler v Pachtman 424 US 409 (1976).
[78]cf in the United Kingdom Elguzouli‑Daf v Commissioner of Police [1995] QB 335.
[79]Stump v Sparkman 435 US 349 (1978).
[80]See Shaman, "Judicial Immunity from Civil and Criminal Liability", (1990) 27 San Diego Law Review 1.
[81]Black v Bayer 672 F 2d 309 (3rd Cir 1982); cf Ferri v Ackerman 444 US 193 (1979).
A description of the position in the United States would be incomplete, however, if no account was taken of the operation of the doctrine of collateral estoppel[82]. In particular, it would be necessary to take account of principles like that described in the Restatement Third of The Law Governing Lawyers[83] as being that a judgment, in a post‑conviction proceeding in a criminal matter (as, for example, an appeal) about whether the lawyer was negligent, may be binding in a subsequent malpractice action against the lawyer even though the lawyer sued was not a party to that litigation[84]. And the application of such principles is not confined to criminal matters[85].
[82]Ashe v Swenson 397 US 436 (1970); Allen v McCurry 449 US 90 (1980).
[83]§53 Comment d at 392.
[84]See, for example, McCord v Bailey 636 F 2d 606 (DC Cir 1980).
[85]Mallen and Smith, Legal Malpractice, 3rd ed (1989), vol 2, §17.13, at 50-55.
Principles of finality find different expression in different jurisdictions. The particular step taken by the House of Lords in Arthur J S Hall v Simons can be understood as influenced, if not required, by Art 6 of the European Convention to which Lord Millett referred. Article 6 was then understood (in the light of Osman v United Kingdom[86]) as securing the right to have any claim relating to civil rights and obligations brought before a court or tribunal. The immediate question in this case, however, is how, in Australia, the principle for which the applicant now contends is to be accommodated with the general principle that controversies, once quelled, should not be reopened. No competition with a general right of the kind considered in Osman v United Kingdom need be resolved.
[86](1998) 29 EHRR 245.
Rules about abuse of process and finality
As foreshadowed in what is written above, particular attention must be directed to whether rules about abuse of process provide a sufficient satisfaction of the principle that controversies, quelled by the application of judicial power, are generally not to be reopened. That requires identification of the nature of the complaint made by a disappointed client who seeks to sue an advocate; next, identification of the premise from which the applicant's argument proceeds; and then, consideration of whether a distinction can or should be drawn between "civil" and "criminal" proceedings, or between challenges to "final" or "intermediate" results. First, what is the nature of the complaint that is made?
The nature of the client's complaint
In every case the complaint must be that a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged. That consequence may take a number of forms. For the moment, it will suffice to identify what may appear to be the three chief consequences: (a) a wrong final result; (b) a wrong intermediate result; and (c) wasted costs.
A client may wish to say that the conduct of the advocate was a cause of the client losing the case because, for example, a point was not taken, or a witness was not called, or evidence was not led. The client may have no appeal, or no remedy on appeal, as, for example, would generally be the case if the evidence not called was available at trial.
A client may wish to say, as the applicant does in this case, that the conduct of the advocate (or here, the advocate and VLA) was a cause of the client suffering an intermediate consequence (conviction at the first trial and imprisonment) which was not wholly remedied on appeal. (The conviction was set aside but the client was incarcerated for a time and complains of that and what is said to have been caused by it.)
A client may wish to say that the conduct of the advocate was a cause of the client incurring unnecessary expense. That may be because a costs order was made against the client or because unnecessary costs were incurred in taking a step in the litigation.
What unites these different kinds of consequence is that none of them has been, or could be, wholly remedied within the original litigation. The final order has not been, and cannot be, overturned on appeal. The intermediate consequence cannot be repaired or expunged on appeal. The costs order cannot be set aside; the costs incurred cannot be recovered from an opposite party. And in every one of these cases, the client would say that, but for the advocate's conduct, there would have been a different result. In particular, leaving cases of wasted costs aside, the client wishes to assert that, if the case had been prepared and presented properly, a different final, or intermediate, result would have been reached. And yet the judicial system has arrived at the result it did. The consequences that have befallen the client are consequences flowing from what, by hypothesis, is a lawful result. So, to take the present case, the imprisonment of which the applicant seeks to complain is lawful imprisonment. In a case where the client would say the wrong final result is reached, the result in fact reached is, by hypothesis, one that was lawfully reached. Whether the lawful infliction of adverse consequences (such, for example, as imprisonment) can constitute a form of damage is a question that may be noted but need not be answered.
The premise for the applicant's argument
The premise for the contention that a client should have an action against a negligent advocate whose negligence caused loss to the client is that there should be no wrong without remedy. If full effect is given to that premise, the client who is defamed in proceedings should have a remedy, at least if the defamation was published otherwise than without malice and in the intended performance of an advocate's or a judge's duty. But the absolute privilege accorded to all participants in the court process and the privilege given to those who publish fair and accurate reports of what is said in court are not challenged. Nor is there any challenge to the immunity of witnesses from suit whether for negligence or intentional torts. Yet it is said that there should be a remedy for the advocate's negligence.
If that is right, the paradigm case in which there should be a remedy is where the advocate's negligence is a cause of the client losing the litigation. That is, there should be a remedy for cases in which the client seeks to challenge the final result. There are two consequences that follow from recognising that this is the paradigm case.
First, the tension between the principle of finality and allowing litigation seeking damages in cases where, in order to succeed, it will be necessary to impugn the final result of earlier litigation, is evident. Secondly, recognising that to permit a challenge to the final result is inconsistent with the need for finality shifts attention to whether there are to be exceptional cases in which that may be permitted. In Arthur J S Hall v Simons, all members of the House accepted that there are circumstances in which the result reached in earlier litigation should not be reopened. Those circumstances were to be identified by using rules about abuse of process. And in the present case, the applicant submitted that it was enough to show that he would not seek to impugn the final result of the litigation in which he had been engaged.
Abuse of process
Questions of abuse of process can be relevant to the present issue only if it is accepted that there are, or may be, circumstances in which the result reached in earlier litigation should not be impugned. The circumstances in which proceedings might be classified as an abuse of process have been described in various ways. In Hunter v Chief Constable of the West Midlands Police[87], to which extensive reference was made in the speeches in Arthur J S Hall v Simons, Lord Diplock spoke[88] of abuse of process as a misuse of a court's procedure which would "be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people". In Rogers v The Queen[89], Mason CJ observed of Lord Diplock's speech that, with what had been said in this Court[90], it indicated:
"that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute".
[87][1982] AC 529.
[88][1982] AC 529 at 536.
[89](1994) 181 CLR 251 at 256.
[90]Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378.
But in the present case it is necessary to focus attention more closely upon what it is about the circumstances that might make prosecution of the case "manifestly unfair" or might "bring the administration of justice into disrepute among right‑thinking people". When it is recognised that the particular circumstance which is said to engage consideration of questions of abuse of process is that the proceeding against the advocate requires challenging the result arrived at in earlier proceedings, the question then becomes how can a distinction be drawn between results that can be attacked, and those that cannot. Two different bases of distinction must be examined. First, can a distinction be drawn, as it was in Arthur J S Hall v Simons, between civil and criminal proceedings? Secondly, can a distinction be drawn between challenging the final outcome of litigation and challenging some intermediate outcome?
An exception for criminal cases?
The difficulties of dividing the litigious world into two classes, one marked "civil" and the other marked "criminal", were identified in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd[91]. Those difficulties are reason enough to reject a principle founded in drawing such a distinction.
[91](2003) 216 CLR 161.
In addition, however, there is no sufficient reason to distinguish between a conviction and a verdict of acquittal. As Deane and Gaudron JJ pointed out in Rogers[92], principles of finality find reflection not only in doctrines of preclusion intended to protect the position of an individual (the doctrines of res judicata, issue estoppel, and so‑called "Anshun estoppel") but also in the public need "for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct"[93]. It is this public need which must underpin the proposition that a conviction cannot be challenged in subsequent proceedings. But if that is right (and it is) neither should an acquittal be open to challenge. Then the question comes down to whether some useful distinction can be drawn between civil and criminal cases. For the reasons given in Labrador Liquor, none can.
[92](1994) 181 CLR 251 at 273‑274.
[93](1994) 181 CLR 251 at 273. See also Pearce v The Queen (1998) 194 CLR 610 at 625‑626 [53]‑[55] per Gummow J.
In Arthur J S Hall & Co v Simons, Lord Steyn acknowledged that the "cab rank" rule requiring barristers to undertake cases in fields in which they practise for the fees they customarily charge was a "valuable professional rule"[550]. His Lordship however added this:
"But its impact on the administration of justice in England is not great. In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits. It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept."
[550][2002] 1 AC 615 at 678.
It would be wrong for a barrister, or a barrister's clerk in Australia, and it is not the practice therefore in this country, to raise a barrister's fee as a device to avoid an unwanted brief. Furthermore, in only two of the States in which there is a functionally divided legal profession, do barristers employ clerks. And even in those latter, the role of the clerk is increasingly administrative, and removed from the fixation of fees. In this country, I do not doubt that the removal of the immunity would intrude upon and diminish the utility of the valuable cab rank rule. Related to the utility, and therefore the desirability of the retention of the cab rank rule, is the practice in Australia, particularly in this Court, of the undertaking of work on a pro bono basis on behalf of indigent parties. Legal aid funds are likely to continue to be scarce. In consequence, the Court's reliance upon the altruism of advocates in offering their services on a pro bono basis is unlikely to decrease. The removal of the immunity has a real capacity to deny the courts access to these services.
The immunity in varying forms has existed for more than 200 years. Its existence and justification have been much debated over the years. Legislatures have not moved to abolish it. In particular, the Victorian Parliament chose not to abolish or regulate the immunity. This is so notwithstanding that, after Giannarelli v Wraith was decided, itself a decision in a Victorian case, the Law Reform Commission of Victoria had recommended legislative removal of the immunity[551]. Instead, by s 442(1) of the Legal Practice Act 1996 (Vic), the legislature expressly legislated that nothing in that Act abrogates any immunity from liability for negligence enjoyed by legal practitioners before the commencement of the section. Far ranging changes reducing common law liability for negligence have recently been enacted[552], but this immunity has not been abrogated. Practices and legal principles which have evolved over long periods and under scrutiny from time to time are not lightly to be discarded: it would be presumptuous for current law makers to think or act differently.
[551]Access to the Law: Accountability of the Legal Profession, Report No 48, (1992) at 50.
[552]See for example, Wrongs (Amendment) Act 2000 (Vic), Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic), Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic), Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic).
There are other matters which require separate discussion. One is the duty that advocates owe to the court. It is a primary duty and transcends the duty owed to the client. That it transcends the latter does not mean that it is always easy for the advocate to distinguish between, and give preference to the primary duty in cases of doubt. The need for observance of the duty to the court as a primary duty requires that there be no ambiguity about what may flow from it, in particular, a claim, however misconceived, by the client against the advocate.
What I have said justifies the retention of the immunity. That I have not referred in detail to other justifications for it does not mean that they are not relevant and important. The risk of conflicting judgments, the need for freedom of expression and candour in court, the invidiousness of making comparisons between actual and notional reactions by judges and juries to arguments and counsel's conduct of a case, and the discouragement of relitigation all lead to the conclusion that in the public interest the immunity of advocates is necessary for the orderly functioning of the system of justice in this country. As to the last, I also agree with what Gleeson CJ, Gummow, Hayne and Heydon JJ have said at [34]-[36] of their Honours' reasons and would add only this. The law has always frowned upon prolonged litigation pursued to produce a different result from what has already been decided. What was said in relation to the doctrine of res judicata is relevant here[553]:
"[T]he maintenance of public order, the repose of society, and the quiet of families, require that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth."
[553]Jeter v Hewitt 63 US 352 at 364 (1859) per Campbell J.
The reasons which I have given for the retention of the immunity are reasons also for its operation upon work done out of court which leads to a decision affecting the conduct of a case in court. It will be apparent from my rejection of the reasons asserted for dismantling the immunity that I disagree with the very recent decision of the New Zealand Court of Appeal[554].
[554]Lai v Chamberlains unreported, Court of Appeal of New Zealand, 8 March 2005.
So far as the second respondent is concerned, the position is clear. For the reasons stated by Judge Wodak and by the Court of Appeal, the relevant work had a connexion, indeed an intimate connexion, with the conduct of the case in court. Advice as to a plea of guilty given shortly prior to a committal could not fairly be characterized otherwise. It went to the heart of the proceedings in court: it was fundamental to the conduct of them.
Should a distinction be drawn however between the first respondent as the instructing solicitor who joined in the advice alleged to have been given, and the second respondent as the advocate? Are the respective positions of the respondents different by reason of their different roles as barrister and solicitor?
In my opinion, the first respondent's submissions that the immunity of a solicitor who advises jointly with counsel cannot be considered in isolation from the immunity of counsel, should be accepted. A decision of the kind taken here, as with many decisions as to the conduct of the case, is taken after discussion and is usually taken jointly. What may have started as a tentative suggestion by one of the lawyers may well emerge as a firm joint decision, a separate author of which cannot reasonably be identified. A solicitor, instructing in litigation owes the same duties as the advocate to court and client. The reasons favouring immunity of advocates in work connected with the conduct of litigation accordingly require that the same immunity obtain for solicitors.
The existence of the immunity does not depend upon whether the proceedings are civil or criminal. Nor does anything turn on the fact that the advice here was given in relation to committal proceedings. As this Court said in R v Murphy[555]:
"Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power: see Ammann v Wegener[556]; Barton v The Queen[557]."
[555](1985) 158 CLR 596 at 616.
[556](1972) 129 CLR 415 at 437.
[557](1980) 147 CLR 75 at 99.
Only two other matters require mention. The first is that in his pleadings, the applicant asserts that "undue pressure" was imposed by the respondents. The Court of Appeal was correct in holding that this could not give rise to a cause of action. In any event, the particulars indicate that the allegation is effectively of emphatic, perhaps even very emphatic, advice. As to that, it may simply be said that advice that is not clear, is advice that may not be worth having.
The applicant sought to rely upon Rogers v Whitaker[558]. He contended that he was not, but should have been, warned that a plea of guilty at the committal could have adverse effects at trial if he sought to withdraw or change his plea. It must have been unmistakably clear to the applicant that the entering of a plea of guilty was ultimately his personal decision and that it would have for him the most serious of consequences. Anyone pleading guilty must have known that. In any event, an allegation of a "failure to advise", not materially different from the allegation made here, was rejected in Giannarelli v Wraith.
[558](1992) 175 CLR 479.
I would grant the application for special leave to appeal, treat the appeal as having been instituted and heard but dismiss it with costs.