D'orta-Ekenaike v Victoria Legal Aid

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne,Heydon JJ,McHugh J,KIRBY J,Callinan J
• Judgment Date: 10 March 2005
• Neutral Citation: [2005] HCA 12,2005-0310 HCA A
• Court: High Court
• Docket Number: M61/2003
• Date: 10 March 2005

Ryan D'Orta-Ekenaike

Applicant

and

Victoria Legal Aid & Anor

Respondents

[2005] HCA 12

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

M61/2003

HIGH COURT OF AUSTRALIA

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.

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)

ORDER

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and dismissed with costs.

1 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 Wraith1 that:

Secondly, does the immunity apply to the acts or omissions of a solicitor which, if committed by an advocate, would be immune from suit?

• (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?

2 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.

3 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

4 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.

5 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.

6 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.

7 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.

8 On the applicant's retrial, evidence of his guilty plea at committal was not admitted. He was acquitted.

9 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.

10 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:

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.

• (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’.

11 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

12 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.

13 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

14 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.

15 Section 10 of the LPPA provided that:

‘(1) Every barrister shall be entitled to maintain an action for and recover from the solicitor or...