The unthinkable has happened. NSW District Court judge John Nicholson SC has teased open a chink in the armour plated advocates immunity.
Nicholson (pic) refused to strike out a statement of claim for professional negligence against barrister Trevor Hall and Surry Hills solicitor Peter La Fontaine, despite the urgings of Guy Reynolds SC, for Hall, that the case is “smack in the middle of the barristers’ immunity as articulated by the High Court”.
The case has been brought by a Port Macquarie man Raymond John Fowler, who retained La Fontaine and Hall in proceedings against purchasers of his Old Butter Factory at Telegraph Point, claiming they had not completed the transaction.
The Port Macquarie proceedings came on before Colin Phegan DCJ. Fowler wanted a stay so that he could put on relevant evidence in support of an amended statement of claim.
The judge invited counsel for Fowler to respond to a proposal that he make an order for costs in favour of the defendants for the four days thrown away dealing with the poor state of the preparation of the plaintiff’s case – namely the failure to meet deadlines and to recognise the need for particular evidence to support the heads of damage.
One of the problems was a failure to produce particulars of the business losses. The lawyers’ minds were specifically directed to obtaining expert evidence on at least four occasions.
Phegan described the progress of the case as “seriously deficient … continuing failure … [and] dilatory”.
The judge foreshadowed that he might call upon La Fontaine and Hall to show cause why he shouldn’t order those costs to be born by them, either solely or jointly.
By way of protecting the defendants Phegan said the matter would not proceed to trial “unless and until these costs are paid”.
Fowler subsequently instructed his lawyers to pay the costs but according to the statement of claim in the negligence action neither has “complied with the costs instructions or has acted for the plaintiff since”.
New counsel for the plaintiff told Judge Phegan that his client was discontinuing the Port Macquarie action and instead intended to proceed against Hall and La Fontaine for professional negligence and the recovery of $42,833 plus interest.
Barrister Trevor Hall resisted the claim on the ground that there was no viable cause of action because of the advocates’ immunity from suit for negligence. He and La Fontaine applied to have the claim struck out.
Guy Reynolds submitted that there were seven areas of professional service where the immunity protected advocates’ negligence:
- Drafting pleadings or particulars of pleadings;
- Advising in relation to pleadings or particulars;
- Advising in relation to evidence to be adduced at hearing;
- Preparing a case for hearing;
- Preparing evidence for hearing;
- Conducting a case in court;
- Advising in relation to prospects of a current action; and
- Failure to conduct the action properly.
Paul Glissan, for Fowler, said there were serious triable issues, including whether the immunity extends to:
- Adjournments, or stay applications to amend pleadings and obtain expert evidence where a case is specifically fixed for five hearing days but does not commence and where no case could be relitigated;
- Breach of contract between plaintiff and lawyers;
- Breach of express instructions from plaintiff to lawyers; and
- Breach of court order by lawyers.
Glissan said that if the rationale of the advocates’ immunity is finality of litigation it cannot apply in instances where a case has not actually been conducted as a consequence of the lawyers’ negligence.
He described Phegan’s decision as not “even an intermediate outcome”.
Nicholson thought the majority in D’Orta-Ekenaike, the latest thinking from the High Court in upholding the immunity for advocates, was more about a “finality immunity” than an advocates immunity.
In both D’Orta Ekenaike and Giannarelli finality had been reached in the proceedings where negligence was claimed.
Nicholson pointed to what amounts to a shift of the goal posts by the High Court.
In Giannarelli Mason CJ formulated the immunity as resting on “the peculiar nature of the barrister’s responsibility when he appears for his client in litigation” and “the adverse consequences for the administration of justice which would flow from the relitigation in collateral proceedings for negligence of issues determined in the principal proceedings”.
In D’Orta-Ekenaike the majority (Smiler, Gummov, Kenny-Boy and Dyce) based the immunity on the place the judicial system has as part of the government structure and the place the immunity from suit has in a series of rules all of which are designed to achieve finality in the “quelling of disputes”.
In other words a pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened, except in a few narrow circumstances.
But of course in the Fowler situation no quelling had taken place, the dispute had not been resolved, and so the circumstances were distinguishable from those determined in D’Orta-Ekenaike, even though the majority there pointed to wasted costs as something that would attract the immunity.
Nicholson said of the distinction between this case and the ones determining the immunity principle:
“This was a matter that could have been resolved within the hearing before Judge Phegan, but his Honour was advised by the plaintiff of an intent to cover the same territory in an action against the defendants for professional negligence.
“Given the issue was one contemplated by the court, but never the subject of a hearing on the merits, there is clearly an argument available that the concept of finality does not apply to costs.”
There’s another loose thread that Nicholson tugged.
In the original Port Macquarie case the alternate claim for trading losses could not proceed because there was no expert witness. Hall, the barrister, who is also an accountant, indicated that he could prepare evidence about trading losses from the plaintiff’s accounts and bank statements.
Nicholson said that in doing so Hall arguably “stepped beyond his role as a barrister” and therefore the immunity may not apply.
The judgment, so far, is only about the strike out application, which was rejected, indicating that this is a case where, possibly, the immunity can be skewered.
There’s a way to go yet.