NSW Supreme Court says solicitor immune from suit for out of court omissions

Update, 12 March 2009: The advocates’ immunity part of the trial judge’s reasons did not really survive on appeal: Coshott v Barry [2009] NSWCA 34. Quite where that leaves the authority of Keefe v Marks (1989) 16 NSWLR 713, a decision of Chief Justice Gleeson, remains to be worked out. Justice of Appeal Ipp with whom and Justices of Appeal Beazley and Campbell said, remarkably pithily:

Advocate’s immunity
61 James J also rejected the Citibank Claim “by reason of advocate’s immunity”. His Honour said, “[d]etermining what claims for relief should be included in the pleading was work done out of court which led to a decision effecting the conduct of the case in court.”

62 In my opinion, this finding by his Honour went too far. Mr Coshott’s case was that Mr Barry breached his duty to advise virtually from the inception of the retainer. Such an alleged failure would be too far removed from the actual conduct of the trial to be covered by the doctrine of advocate’s immunity. I do not think that, when the retainer commenced, a failure to advise as alleged could be regarded, properly, as leading to a decision affecting the conduct of the case in court (Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560 per Mason CJ). The period from the time the retainer commenced to the trial itself was too long for the requisite connection to the conduct of the case in court to be established.’

and

’76 Having regard to the degree of control exercised by Mr Coshott over the proceedings, and to the fact that senior counsel did not query the admissibility of Mr Davis’s report, I consider that James J was correct in finding that, had Mr Barry advised that Mr Davis’s evidence was not admissible, Mr Coshott would have not accepted that advice. For the reasons given in connection with the Citibank Claim I do not consider that his Honour ignored s 5D of the Civil Liability Act when making this finding.

77 The question whether the defence of advocate’s immunity applies to the PSO claim is open to question. Mr Coshott contended that Mr Barry breached his duty in regard to the admissibility of Mr Davis’s evidence as from the time Mr Davis provided his report; hence, the breach occurred too long before the trial to be regarded as involving a decision affecting the conduct of the case in court. There are difficulties in determining this question, as it is not clear when Mr Barry was first duty-bound to consider the admissibility of the report. It may well be that James J correctly decided that Mr Barry’s conduct in regard to Mr Davis’s report involved “[w]ork done in deciding what witnesses should be called and what evidence should be sought to be adduced from them” (as his Honour put it). In view of the other conclusions to which I have come in regard to the PSO Claim, it is not necessary to decide this issue.’

Original post: The New South Wales Supreme Court yesterday gave judgment for a solicitor on an advocates’ immunity defence to a claim of professional negligence in respect of out of court work by the solicitor. The decision of Justice James was in the matter of Coshott v Barry [2007] NSWSC 1094. This disciplinary decision seems to be related in some way: Law Society of New South Wales v Vardas [2006] NSWADT 118. Anyone want to contribute a case note to this blog? Could be a while until I get around to it. What the Court said about immunity in the first case is reproduced below:

‘144 On each of the Citibank claim, the PSO claim and the Commonwealth Bank claim the defendant sought to rely on a defence of advocate’s immunity.

145 This defence had not been specifically pleaded by the defendant. I considered that the defence should have been specifically pleaded (see Uniform Civil Procedure Rules r 14.14) but I gave leave to the defendant to amend so as to raise the defence. It had been made apparent to the Court and to Mr Coshott [the plaintiff] at the beginning of the hearing that the defendant would be seeking to rely on authorities about advocate’s immunity.

146 Four cases on advocate’s immunity were referred to in argument at the hearing Giannarelli v Wraith (1987-1988) 165 CLR 543; Keefe v Marks (1989) 16 NSWLR 713; D’Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1; Wilson v Carter [2005] NSWSC 1351 (Rothman J).

147 In Giannarelli proceedings in negligence were brought by the plaintiffs against a number of barristers who had appeared for them at committal proceedings or a trial or an appeal to the Court of Criminal Appeal. A claim which had been made by the plaintiffs against a solicitor who had been their solicitor in the committal proceedings and at the trial was withdrawn.

148 It was held by the majority of the High Court that at common law a barrister cannot be sued by his 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. It was stated by the majority that the same immunity attaches at common law to a solicitor acting as an advocate in court.

149 At pp 559-560 Mason CJ, who was in the majority, said:-

“Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court.”

150 In D’Orta-Ekenaike the plaintiff had been charged with a criminal offence. He was granted legal aid in defending the charge by Victoria Legal Aid, a corporate body. Victoria Legal Aid briefed a barrister to represent the plaintiff. The plaintiff alleged that a solicitor employed by Victoria Legal Aid and the barrister instructed by Victoria Legal Aid advised the plaintiff to plead guilty to the criminal charge. The plaintiff entered a plea of guilty at committal proceedings but later changed his plea and stood trial. At the trial evidence was admitted of his plea of guilty at the committal proceedings and the plaintiff was found guilty of the charge.

151 An appeal against conviction was allowed by the Victorian Court of Criminal Appeal and a new trial was ordered. At the new trial evidence of the earlier plea of guilty was not admitted and the plaintiff was acquitted. The plaintiff then sued Victoria Legal Aid and the barrister who had first been briefed to represent him.

152 It was held by the majority of the High Court, following Giannarelli, that at common law an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court or for work done out of court which leads to a decision affecting the conduct of a case in court.

153 At 31 [85-87] Gleeson CJ, Gummow J, Hayne J and Heydon J said in their joint judgment:-

“[85] No sufficient reason is proffered for reconsidering the court’s decision, in Giannarelli, that an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court. Should the boundary of the operation of the immunity be redrawn?

[86] Again, we consider that no sufficient reason is proffered for doing so. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or “work done out of court which leads to a decision affecting the conduct of the case in court” or, as the latter class of case was described in the explanatory memorandum for the Bill that became the Practice Act, “work intimately connected with” work in a court. (We do not consider the two statements of the test differ in any significant way.)

[87] As Mason CJ demonstrated in Giannarelli, “it would be artificial in the extreme to draw the line at the courtroom door”. And no other geographical line can be drawn that would not encounter the same difficulties. The criterion adopted in Giannarelli accords with the purpose of the immunity. It describes the acts or omissions to which immunity attaches by reference to the conduct of the case. And it is the conduct of the case that generates the result which should not be impugned.”

154 It was further held by the High Court that Victoria Legal Aid under the Victorian Legal Aid Act was in the position of a private firm of solicitors and that a solicitor, even if not acting as an advocate, has the same immunity as an advocate in respect of advice which leads to a decision affecting the conduct of a case in court.

155 At 32 [91] Gleeson CJ, Gummow J, Hayne J and Heydon J said:-

“Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision (here the client’s decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account.”

156 Keefe v Marks was decided after Giannarelli but before D’Orta-Ekenaike.

157 In Keefe v Marks an injured person brought proceedings for damages. He was successful in the proceedings but no interest was awarded on the amount of damages awarded, no claim for interest having been made by his legal representatives.

158 The injured person sued the solicitor who had acted for him (Keefe) for professional negligence and the proceedings were settled. Keefe then sued the barrister who had appeared for the injured worker, claiming contribution from him.

159 The Court of Appeal, applying Giannarelli, held that the common law immunity of barristers from liability for negligence extended to out of court work intimately connected with or ancillary to the conduct of a case in court. Such out of court work for a barrister briefed to appear at a hearing would include:-

“…such matters as interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended”.

160 In Wilson v Carter Rothman J, after referring to Giannarelli and D’Orta-Ekenaike, said at [55], with reference to alleged negligence by a barrister:-

“The drafting of affidavits, the determination of the contents of those affidavits and the advices relating thereto, indeed all the tactical decisions associated with the preparation for and presentation of the extension application were, in the circumstances of this case, “intimately connected” with conduct of the case in court and affected the hearing. It is difficult to imagine out-of-court work more connected with the conduct of the case in court than the determination of the witnesses to be called and the evidence to be adduced from them. To the extent that these allegations concern out-of-court work, they are fundamentally directed to such matters or to preliminary steps leading only to such matters.”

161 At [63], after referring to Keefe v Marks, Rothman J said:-

“Inadvertence to some aspects of a decision affecting the conduct of a cause in Court, does not take the matter beyond that which is immune.”

162 Mr Coshott made some general submissions about advocate’s immunity. He referred to Giannarelli and particularly the judgments of Mason CJ and Wilson J and submitted that it had been held in Giannarelli that it was the function of advocacy which attracted the immunity and that a solicitor was entitled to the immunity, only if he had been acting as an advocate. He submitted that in D’Orta-Ekenaike the majority of the High Court had expressly held that what had been decided in Giannarelli should not be departed from. Mr Coshott contended that a solicitor in preparing a pleading is not functioning as an advocate. Consistently with this contention, Mr Coshott said in oral argument that a barrister in preparing a pleading is not functioning as an advocate and is not entitled to the immunity.

163 Mr Coshott put a further submission that the test laid down by the majority of the High Court in D’Orta-Ekenaike is satisfied, only when a legal practitioner actually gives advice which leads to a decision by a client, and is not satisfied when the legal practitioner omits to give advice; insofar as Keefe v Marks was inconsistent with the submission, I should follow the two High Court decisions and not the decision of the Court of Appeal in Keefe v Marks.

164 There are some essential parts of these submissions by Mr Coshott which I consider that I should not accept.

165 In Giannarelli the High Court was concerned with the liability of barristers and it was in this context that the majority in the High Court held that the same immunity would attach to a solicitor acting as an advocate. Mason CJ, who was in the majority, held that the immunity was not limited to work done in court but extended to work done out of court which led to a decision affecting the conduct of a case in court.

166 In D’Orta-Ekenaike the majority of the Court held that the Court should not depart from the decision of the majority of the court in Giannarelli about the scope of the work to which the immunity attaches. It was confirmed that the immunity attaches both to work done in court and work done out of court which leads to a decision affecting the conduct of a case in court or which is intimately connected with work in court. Such work includes drawing pleadings and considering what evidence will be adduced. The majority also held that the immunity attaches to solicitors as well as barristers.

167 The submission made by Mr Coshott, that the immunity attaches only when the legal practitioner actually gives advice which leads to a decision by the client, is inconsistent with the decision of the Court of Appeal in Keefe v Marks. In my opinion, Keefe v Marks should not be regarded as being inconsistent with either of the High Court decisions and I should follow it.’

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One Reply to “NSW Supreme Court says solicitor immune from suit for out of court omissions”

  1. I have given a brief account of just a few aspects of Mr Coshott’s career here.

    Mind you, I don’t think that will help you through the thickets of Vardas.

    The commercial service I refer to is Lexis-Nexis.

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