Toth v Stewart & Associates

1. [1]

   By summons filed on 2 October 2020, Andrew Toth (the plaintiff) appeals and, where necessary, seeks to appeal against a decision made by Magistrate Longley in the Local Court on 3 September 2020. The Magistrate granted a notice of motion brought by his former legal representatives (the defendants) and made an order for the summary dismissal of a civil action commenced by Mr Toth against the defendants. The Magistrate decided that the cause of action pleaded by Mr Toth was untenable and destined to fail because it would inevitably be defeated by the defendants’ reliance on the common law immunity of advocate’s from suit.

2. [2]

   The appeal is governed by the provisions of the Local Court Act 2007 (NSW), and in particular, by the provisions in ss 39 and 40 of that Act. Those provisions provide an avenue of appeal from the Local Court to the Supreme Court. If the order under appeal is an interlocutory order, leave to appeal is always required. [1] In the case of a final order, there is an appeal as of right if the ground of appeal is "only on a question of law”. [2] Leave is required if the ground raises a question of mixed law and fact. The Local Court Act does not allow for appeals against decisions involving questions of fact alone.

Extension of time

1. [3]

   The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that the appeal must be brought within 28 days of the date of the decision. The plaintiff filed his summons a few days out of time. The defendants consented to an extension of time to file the appeal and the extension will be granted.

Leave to appeal

1. [4]

   The plaintiff represented himself before the Local Court and on the appeal to this Court. As far as I know, he is not legally trained and this is reflected in the documents he has drafted and filed. There is a lack of clarity as to the precise grounds of appeal with the result that at times it is difficult to tell if he raises a question of law or a question of mixed law and fact. In the latter case, leave to appeal would be required.

2. [5]

   The parties took different positions as to whether the appeal was against an interlocutory order (where leave would be required) or a final order (where the appeal would be of right if the ground was on a question of law only). The manner in which the matter came before the Magistrate had the appearance of interlocutory proceedings; his Honour was dealing with a notice of motion seeking an order that the proceedings be dismissed before the final and full hearing of the matter. In spite of that appearance, it is well established that an order for summary dismissal is an order finally disposing of the proceedings. [3] The plaintiff (at times) seemed to assert that the appeal was against an interlocutory judgment or order, although it “constituted a final determination of the proceedings, albeit incorrectly”. [4] The defendant submitted that the appeal was against a final order. [5] The latter view is correct and this is well supported by the authorities discussed by Adams J in Macatangay v NSW (No 2). [6]

3. [6]

   Accordingly, the plaintiff has an appeal as of right on a question of law and requires leave if the appeal raises a question of mixed law and fact.

4. [7]

   As I have said, the plaintiff was self-represented while the defendants were represented by senior and junior counsel. In written submissions, the defendant argued that the summons commencing the appeal proceedings failed to identify with sufficient clarity a question of law. It was contended that a number of the paragraphs in the summons appeared to raise questions of fact, while other parts of the summons appeared to be attempting to litigate questions of mixed law and fact. As will be seen, there was real substance in these submissions.

5. [8]

   However, it is important to take into account the fact that the plaintiff is self-represented. While he did an admirable job of presenting his arguments and is quite capable of fending for himself in the preparation of submissions and in the formality of the court room, he remains at a disadvantage in drawing the occasionally fine and elusive distinction between questions of law, questions of fact and questions involving both law and fact. Further, there are some important questions at the heart of the plaintiff’s appeal. These include the scope and breadth of an advocate’s immunity from suit, the interaction between immunity and the court's power to summarily dismiss, and the obligation of the Court exercising that power to resolve each paragraph or allegation in the initiating process by reference to the immunity, rather than, as the plaintiff contends happened here, taking a global approach to the question. He also raises an allegation, as he expresses it, of “abuse of process” based on his assertion that Magistrate Longley failed to give effect to the decision made by Magistrate Atkinson when the notice of motion was before the Local Court on 18 May 2020.

6. [9]

   In accordance with the provisions in s 40 of the Local Court Act, the defendants’ position was that leave was required if the appeal was based around a question of mixed fact and law.

7. [10]

   However one analyses the issues set out in the preceding paragraphs, the plaintiff should be granted leave (where necessary) to argue his appeal. While the defendants’ arguments concerning the lack of clarity as to the grounds of appeal have force, the plaintiff has articulated with sufficient lucidity the issues he seeks to ventilate and the errors that he asserts were made by Magistrate Longley.

8. [11]

   Because some of the issues agitated in the summons raise questions of procedural fairness, abuse of process and the application of an important common law immunity from suit, and also because the applicant is self-represented, I am satisfied that leave should be granted. In short, given the plaintiff's status as a self-represented litigant seeking to remedy what he sees as an injustice, this appeal should be determined on its merit rather than on a technical ground concerning whether it raises a question of law alone.

9. [12]

   In fairness to those appearing for the defendants, that is more or less the approach taken on the hearing of the appeal. On that note, I should say that contrary to the plaintiff’s more strident submissions, my review of the proceedings both before the Local Court and in the proceedings before this Court, indicates that those representing the defendants have conducted the case with restraint and fairness and in accordance with their ethical duties when appearing against a self-represented litigant.

10. [13]

    Where necessary, leave to appeal will be granted.

Factual and procedural background to Magistrate Longley’s decision to dismiss the statement of claim summarily

1. [14]

   The statement of claim, amended statement of claim, defence and amended defence, along with two published judgments of the Court of Appeal and a Joint Chronology, provide an adequate summary of the factual and procedural background to the present appeal. There does not seem to be any dispute about these matters and I recount them to place the arguments of the parties in some kind of factual and chronological context.

2. [15]

   On 1 March 2015, the plaintiff was arrested at Town Hall railway station and on 30 May 2015, he was charged with filming the private parts of another person without consent and offensive behaviour. [7] He was issued with a Court Attendance Notice requiring him to appear at the Downing Centre Local Court on 22 July 2015. Sometime later, he retained the services of the first defendant, which is a firm of solicitors. The second defendant was a solicitor employed by the first defendant and he was allocated carriage of the plaintiff’s case.

3. [16]

   After some adjournments, a defended hearing was conducted in the Local Court on 15 March 2016. The second defendant appeared for the plaintiff. The plaintiff was found guilty of the offence under s 91L. I am not certain, and it does not matter, what happened to the offensive conduct charge.

4. [17]

   The defendants’ retainer came to an end after the conviction was recorded in the Local Court. Since then, the applicant has appeared for himself.

5. [18]

   The plaintiff appealed against his conviction to the District Court. His appeal was dismissed by Judge Syme. He sought judicial review of that decision to the Court of Appeal on the ground, inter alia, that he was denied procedural fairness in the District Court appeal by virtue of the Judge’s conduct. [8] The Court of Appeal (White JA, Leeming JA and Barrett AJA agreeing) was critical of the conduct of the District Court Judge and upheld a ground that the Judge’s intervention in the plaintiff’s submissions resulted in a denial of procedural fairness. It was also held that the District Court Judge applied the wrong test to the issue of mens rea in respect of the offence under s 91L. The Court quashed the decision of the District Court and remitted the matter to be determined by another judge. Those orders were made on 22 December 2017.

6. [19]

   The matter was before the Court of Appeal again in late 2018. [9] The plaintiff sought judicial review of two decisions made by the District Court (Judge Sweeney) when the appeal from the Local Court was remitted. That application was unsuccessful.

7. [20]

   As I understand the joint chronology, the plaintiff’s appeal against his conviction was upheld and his conviction under s 91L was quashed by the District Court on 29 November 2019.

8. [21]

   On 9 December 2019, the plaintiff commenced proceedings against the defendants by Statement of Claim filed in the Local Court. A defence was filed on 25 February 2020. On the same date, the defendant filed a notice of motion seeking an order that the plaintiff’s proceedings be dismissed.

9. [22]

   The notice of motion was listed before Magistrate Atkinson on 18 May 2020. Her Honour declined to grant the order sought in the notice of motion at that stage and adjourned the proceedings. Her Honour delivered an ex tempore which concluded as follows:

10. [23]

    There was then a discussion between the parties as to the form of the orders. [11] In the course of that discussion, her Honour said:

11. [24]

    I have set these passages out because they form part of the plaintiff’s argument that the decision of Magistrate Longley amounted to an “abuse of process”.

12. [25]

    Magistrate Atkinson directed the plaintiff to file an amended statement of claim within 28 days (being 15 June 2020) and the defendants were required to file an amended defence within a further 28 days.

13. [26]

    An amended statement of claim was filed and dated 15 June 2020. A defence to the amended statement of claim was filed on 14 July 2020. At the same time, the defendants filed a further notice of motion seeking the following orders:

14. [27]

    The matter came before Magistrate Longley on 3 September 2020. Written submissions had been filed, the parties made oral submissions and his Honour delivered an ex tempore judgment. [14] The following orders were made:

15. [28]

    His Honour ordered the plaintiff to pay the defendants’ costs.

The grounds of appeal and submissions

1. [29]

   While acknowledging Mr Toth’s lack of legal qualifications, a difficulty arises from the form of the grounds of appeal. The defendant drew attention to the narrative form the grounds take and the lack of precision in identifying the plaintiff’s complaints. It is true that the grounds meander over 6 pages, are quite discursive and difficult to articulate succinctly or grapple with coherently.

2. [30]

   The grounds of appeal, as described in the summons, are annexed to these reasons and marked “A”. A review of those grounds proves the defendants’ point. Because of their nature and form, it is fruitless to deal with the grounds seriatim or to settle upon a cohesive and logical approach to addressing them.

3. [31]

   The difficulty is exacerbated by the written submissions (in chief and in reply) which adopt what I would describe as a scatter gun approach to the appeal. However, some allowance should be given to the fact that the plaintiff represents himself, albeit that this is far from his first rodeo. [16] There are a number of complaints and I will attempt to distil the thrust of the plaintiff’s arguments and deal with them in the most logical order I can. I will then address the issue at the heart of the appeal, which is whether the Magistrate erred in determining that the whole of the statement of claim was untenable or hopeless because it would inevitably be defeated by the defendants’ reliance on the advocate’s immunity.

Abuse of process

1. [32]

   One of the arguments made by the plaintiff is that the proceedings before Magistrate Longley represented an abuse of process because (amongst other things) the issue litigated on the notice of motion had already been determined by Magistrate Atkinson on the earlier motion. The plaintiff contends that the decision made by Magistrate Longley failed to take into account, or give effect to, the decision made by Magistrate Atkinson. At its extreme, the submission suggested that Magistrate Atkinson had resolved the issue favourably to the plaintiff. Accordingly, it was submitted that the defendants’ application for summary dismissal, and the disposition of the notice of motion by Magistrate Longley, constituted an abuse of the processes of the Court. That contention cannot be sustained on any of the bases upon which it was put.

2. [33]

   I have already set out the history of the matter, the orders made, and the reasons given by the two Magistrates, which concerned different statements of claim. Magistrate Atkinson considered the statement of claim originally filed, while Magistrate Longley dealt with the amended statement of claim. The amended statement of claim was filed as a result of the orders and directions made by Magistrate Atkinson. There were substantial changes made to the documents, including the plaintiff inserting into the amended process a matter admitted by the defendants’ in their defence to the original statement of claim. The defendants argued that the central flaw in the initiating process remained; that is, they contended that the suit would inevitably be defeated once the advocate’s immunity was invoked. They argued this by bringing a new and separate notice of motion.

3. [34]

   The transcript of proceedings before Magistrate Atkinson shows that her Honour was reluctant to summarily dismiss proceedings brought by an unrepresented litigant. Her Honour said things that suggested she had formed views about whether the whole of the statement of claim would be defeated by a defence based on advocate’s immunity. Some of those views might be seen as favourable to the plaintiff and others considered favourable to the defendants. Magistrate Longley was not bound by those views, however they were expressed. To look at the matter from the other direction, it would have been wrong for his Honour to have abdicated his judicial responsibility by acting on Magistrate Atkinson’s conclusion (or provisional view) that parts of the statement of claim were caught by the advocates’ immunity. For instance, her Honour said at one stage:

4. [35]

   Rather than dealing with the notice of motion, either by dismissing the proceedings or striking out the pleading, Magistrate Atkinson provided the plaintiff with an opportunity to re-plead his case. Most of the observations made by Magistrate Atkinson were calculated to explain to the plaintiff, within the confines of the Magistrate acting with judicial impartiality, the problems that she saw, provisionally, with his statement of claim. While her Honour said things that suggested that she had formed a concluded view that parts of the plaintiff claim would be defeated by the defendant’s reliance on the advocate’s immunity and other parts would not, no final orders were made. Rather than striking out all or part of the plaintiff’s statement of claim, her Honour adjourned the proceedings for further directions. The purpose of the adjournment was to allow the plaintiff to re-plead his case in an amended statement of claim, to remove those pleadings which obviously fell afoul of the immunity as well as re-plead the contract claim. As will be seen, this was not done. The amended statement of claim remained, in essence, a claim for damages based on the alleged neglect of the advocate in preparing for, and conducting, the defended criminal proceedings. The claim for breach of contract was amended substantially and a new cause of action, described as “LOSS OF FAIR HEARING” was added.

5. [36]

   There were many changes made to the amended statement of claim and it was this document to which Magistrate Longley was required to direct his attention. His Honour was called upon to determine a notice of motion that sought orders in relation to the “amended statement of claim”. Nothing said by Magistrate Atkinson in relation to a different notice of motion directed to the original statement of claim was binding on Magistrate Longley or determinative of the second notice of motion.

6. [37]

   There was no abuse of process in the defendants pursuing a new notice of motion once it received the amended statement of claim. Nor was there any abuse of process in the manner in which Magistrate Longley dealt with the motion or in his Honour rejecting the plaintiff’s submission that Magistrate Atkinson had determined the issue of whether the plaintiff’s suit was defeated by the advocate’s immunity.

Bias

1. [38]

   In his written submissions, the plaintiff enumerated occasions when Magistrate Longley interrupted him in the course of oral submission. [18] He also complained that the Magistrate failed to deal with each and every one of his written and oral submissions. Reliance was placed on the Magistrate quoting the defendant’s submission at length, and in doing so, reproducing errors in the citation of past authorities. The implication was that the Magistrate’s decision was tainted by bias. At the hearing, the plaintiff submitted:

2. [39]

   I have disregarded the plaintiff’s diffidence during the oral argument. I have not proceeded on an assumption that he abandoned his grounds or submissions that asserted that the Magistrate was disqualified on the basis of apprehended or actual bias. Those submissions were as clear as they could have been. For example, in his submissions in reply, the plaintiff submitted that “His Honour’s readily ascertainable one-sidedness readily gives rise to an apprehension of bias” and that the Magistrates “completely ignoring the plaintiff’s references and authorities … subverted the judicial process”. [20]

3. [40]

   Insofar as the submission that the Magistrate exhibited actual or apprehended bias is pressed, I reject the submission. This was not a case like Toth v Director of Public Prosecutions (NSW), [21] where Judge Syme’s interruptions gave rise to a denial of procedural fairness and a finding of jurisdictional error. Even in that case, which was (with respect to her Honour) a pretty extreme example of judicial intervention, White JA “made no finding of apprehended bias”. [22] On my review of the transcript of proceedings before Magistrate Longley – and noting that I was not invited to listen to the audio recordings of the proceedings to which reference was made in the written submissions – I am left with no doubt that the Magistrate exhibited appropriate judicial detachment and impartiality. There were interruptions but these did not give the appearance of partiality but rather, amounted to an attempt by the Magistrate to get to, and stick to, the true issues. Where Magistrate Longley referred to the defendant’s submissions in his ex tempore reasons for judgment, he made it clear that he was doing so. His Honour was not required to re-invent the wheel, or to reformulate the language into his own, when he accepted (rightly or wrongly) the defendants’ submissions and where those submissions succinctly summarised the relevant legal principles and the authorities. Where errors were reproduced, they related to matters of little or no moment.

4. [41]

   The Magistrate was not required to articulate every one of the plaintiff’s submissions to establish that they had been considered, let alone to demonstrate that he brought an impartial mind to bear upon the issues. As was explored in the oral argument, the submissions almost suggested that the fact that the Magistrate found against the plaintiff was capable of supporting the suggestion that he exhibited bias. The plaintiff’s submissions in reply asserted “the alleged bias was not obvious until the Magistrate’s summation and verdict”. [23]

The Magistrate did not read the plaintiff’s submissions

1. [42]

   The Magistrate said he had read the plaintiff’s written submissions. The plaintiff submitted “At face value this statement is either not correct, or the “reading” was so perfunctory that it had no real value”. [24] The plaintiff went on to provide examples that purport to demonstrate that his submissions were not read by reference to errors in the ex tempore judgment, for example, by echoing the defendants incorrect use of the word “raised” rather than “available” in one of the quoted judgments. The plaintiff argued that the Magistrate’s failure to adopt his expression “generalisation” (said to have been employed 12 times by the plaintiff) was further evidence that the Magistrate did not read, or simply ignored, his submissions. The plaintiff argued that this resulted in a “lack of procedural fairness” and a failure of jurisdiction (“Magistrate Longley was not enabled to make any rulings whatsoever on the matter”), [25] apprehended bias or, “at its worst this has led to a breakdown of the justice system”. [26]

2. [43]

   I reject the premise behind these submissions. I accept that the Magistrate quoted at length from the defendant’s submissions and did not take the same approach to the plaintiff’s written work. However, I do not accept that this leads to a conclusion that his Honour dissembled when he said he had read the submissions. The more likely conclusion is that he found it difficult to reproduce the commodious submissions in a coherent and compendious form in the course of delivering an ex tempore judgment in a busy Local Court. The other conclusion is that he rejected the plaintiff’s submissions. The contention that he lied about reading the submissions, to put it in candid if unpalatable terms, is rejected.

Failure to engage with the terms of the relevant rules and authorities and failure to strike out the pleading (or part thereof) as an alternative to summary dismissal

1. [44]

   The plaintiff complained (in written submissions) that his Honour “barely referred” to the relevant rules under which the plaintiff’s motion was to be determined. [27] The argument went on to suggest that his Honour failed to apply settled principles for summary disposal and did not consider striking out the pleading as an alternative to dismissing the suit summarily. There is no substance to these complaints.

2. [45]

   The Magistrate specifically referred to the rules under which the defendant sought relief. There was no obligation to set out the rules in terms or to embark on a lengthy analysis of the many authorities that have considered when it is appropriate to order summary dismissal. His Honour referred to the “very high bar” that the defendant had to overcome. [28] By reference to the defendant’s submissions, he set out the principles including:

3. [46]

   No error of law is established in the Magistrate’s explanation or understanding of the power he was called upon to exercise. The suggestion that the relevant parts of the rules “were barely referred to” is misconceived and not borne out by an examination of the record. The suggestion that the Magistrate, in effect, paid lip service to the “high bar” he said existed and “in practice … set the bar very low on the basis that the mere fact of litigation made everything immune from suit” is also wrong. It will be necessary to consider that aspect of the submission more closely because, in the end, that is at the core of the controversy between the parties.

4. [47]

   The plaintiff also complained (adopting the paragraph numbers of the Summons) that the Magistrate:

5. [48]

   These grounds are based on a misapprehension of the Magistrate’s function and ignored the background to the litigation that included the plaintiff being afforded an opportunity to redraft the pleading to remove those aspects of the claim that were clearly caught by the immunity and the reality that this did not occur.

6. [49]

   The transcript of 18 May 2020 shows that Magistrate Atkinson was circumspect about providing the plaintiff with legal advice. However, she provided an example of a part of the statement of claim that was clearly “within the scope of the immunity”, namely paragraph 11. That paragraph pleaded:

7. [50]

   While that paragraph was removed, the amended statement of claim included (by way of example):

8. [51]

   It also included, as part of paragraph 24 (detailing alleged breaches of the Solicitor’s Rules):

9. [52]

   Magistrate Longley did not appear to take into account the failure of the plaintiff to amend his defence to comply with Magistrate Atkinson’s directions and suggestions. Rather, his Honour dealt with the amended statement of claim on its own terms and merit. His Honour was not required to attempt to “fix” the statement of claim or to eke out some part of the document that had “some merit, however slender”. Rather, his Honour’s task was to determine whether the whole claim would inevitably be defeated by the claim or defence based on the advocate’s immunity. That is another way of asking the relevant question namely, whether the plaintiff’s claim, in light of the assertion that the causes of action were subject to the immunity, was untenable or hopeless and destined to fail such there was no triable issue.

10. [53]

    Once his Honour decided (again, rightly or wrongly) that the claim should be summarily dismissed, he was not required to consider the alternative prayer for relief in the form of striking out the pleading.

Failure to recognise or resolve the “complete disagreement concerning the factual circumstances” and whether Magistrate blurred the lines between an application for interlocutory relief with a determination upon a final hearing

1. [54]

   In various ways in his grounds of appeal and submissions to this Court, the plaintiff contended that Magistrate Longley erred in conducting what he described as a “hybrid” hearing, which went beyond that which was appropriate for an interlocutory application for summary judgment. He says there were no settled facts and that it was inappropriate to make a determination on the issue of advocate’s immunity when so much was in dispute between the parties. He raised a similar issue in the Local Court. He also submits that it was inappropriate to decide the advocates’ immunity issue because the law in the area was unsettled. For this last proposition he relied on comments of the Court of Appeal in Young v Hones. [38] In making these arguments, the plaintiff asserted there are two kinds of hearings: summary dismissals and immunity from suit hearings. [39] Reliance was placed on the fact that there is no “immunity from suit category” in UCPR 13.4, the rule relating to summary dismissal. [40]

2. [55]

   Both parties took me to passages in Young v Hones and the earlier decision in Donnellan v Woodland [41] to make their competing submissions on this issue. Neither of those cases involved the entry of summary judgment when a defence based on advocate’s immunity was raised. However, both cases support the proposition that, where possible, it is appropriate to determine the question of advocate’s immunity as a separate and antecedent issue. [42]

3. [56]

   In Donnellan v Woodland, the case had not been dealt with in that way; the case had been dealt with to finality with the resolution of all issues. The Court of Appeal took the view that the better course would have been to deal with the defence based on the immunity rather than first determining the issue of negligence.

4. [57]

   In Young v Hones, the issue had been considered separately but before the pleadings were closed. The Court was critical of that course and said the issue should not have been determined before the close of pleadings. However, the Court accepted the primary Judge had not fallen into error because the appellant had taken a forensic decision to consent to the process.

5. [58]

   In Nikolaidis v Satouris, [43] a District Court had “struck out” a plaintiff’s claim as an “abuse of process” on the grounds that the defendant was immune from suit. The Court of Appeal dismissed an appeal against that decision. [44]

6. [59]

   In Golden v Koffel, [45] Cavanagh J summarily dismissed an action in professional negligence against solicitor who appeared for the plaintiff in proceedings before this Court against Racing New South Wales. The details are unimportant and its only relevance is that Cavanagh J exercised the power of summary dismissal under UCPR 13.4 on the basis that the claim was bound to fail as a result of the advocates immunity form suit.

7. [60]

   These cases support the proposition that, contrary to the plaintiff’s argument, there is no separate “immunity from suit” hearing that is mutually exclusive from a court’s power to strike out or summarily dismiss a claim. The very basis of the exercise of the power may be that the claim is “bound to fail because any allegation that he makes against the defendants which could (assuming the facts in his favour for the purpose of this application) lead to any findings in his favour, would not lead to a judgment in his favour as the defendants are able to rely on the advocates' immunity defence.” [46]

8. [61]

   The passage from Young v Hones, upon which the plaintiff relied on to assert that the Magistrate ought not to have dealt with the application for summary judgment because the state of the law was unsettled, is not determinative of this case (if it is relevant at all). The passage came from Ward JA:

9. [62]

   Put simply, the unsettled aspect of the law in Young v Hones was the question of whether a solicitor who acts in bad faith is protected by the immunity. That is not an issue here, notwithstanding the strong language in which the plaintiff put his allegations, in particular, against the second defendant. The law of the advocate’s immunity, as it concerns the relevant circumstances of the present case, is settled.

10. [63]

    The fact that it might be considered difficult, or nuanced or requiring close examination of the relevant law and pleadings, is not a bar on the entry of summary judgment. [48]

11. [64]

    The plaintiff made forceful submissions in the Local Court and in writing on this appeal, that the facts were in dispute and that it was wrong for the Magistrate to proceed summarily and deny the plaintiff the right to have those factual controversies resolved.

12. [65]

    It is certainly true that there were factual issues raised on the pleadings. However, those disputes did not have a capacity to impact on the question of whether the plaintiff’s claim would inevitably be defeated by reliance on the immunity. For example, the issue of negligence was hotly in dispute and this included whether the second defendant was ill-prepared for the hearing. There was also a dispute whether the fees paid exceeded $750 and whether the defendants failed to comply with statutory costs disclosure requirements. There were disputes as to whether the retainer agreement included a condition that the plaintiff be permitted “to ask a lot of questions”, to be “hands on”, to “pick the solicitor’s brains” and, if so, whether that condition was breached. There was a dispute as to whether the second defendant was discourteous and “berated the plaintiff”. These are examples of many such factual disputes disclosed in the particulars of negligence and breach of contract alleged in the summons. In that sense, the plaintiff was correct in submitting that there were factual disputes between the parties.

13. [66]

    However, the factual disputes did not go to the issue of whether the whole of the suit was destined to fail in the face of the defence based on the advocate’s immunity, even if he were successful in relation to the factual issues upon which the parties joined issue.

14. [67]

    To take as an example a factual dispute that would be critical if the case proceeded to a final hearing, the plaintiff asserted that the defendants were negligent and breached their duty of care by (for example) (i) being ill-prepared for the hearing (or not prepared at all), (ii) not researching available defences and (iii) advising the plaintiff that there was only one tenable defence (that he committed the charged act as part of his research). The defendants deny the allegation of negligence. Whatever the outcome of that factual dispute, it is not determinative of whether the advocate’s immunity attached to the impugned conduct. The same can be said of the alleged breach of contract constituted by the failure to allow the plaintiff to be a “hands on” client and to ask a lot of questions. Whatever the resolution of that factual dispute, it does not impact on whether the advocate’s immunity defeated the claim based on that breach of contract.

15. [68]

    The plaintiff was asked about this issue in the hearing before me. Apart from repeating that the “facts are in dispute”, he was not able to identify any disputed facts that were relevant to a determination of whether reliance on the immunity ought to have been upheld:

16. [69]

    I am satisfied that:

    1. (1)

       The state of the law relevant to the issues arising from the notice of motion is settled.

    2. (2)

       The facts relevant to those issues were sufficiently clear and not in dispute.

    3. (3)

       It was appropriate for the Magistrate to hear and determine the notice of motion.

    4. (4)

       The Magistrate did not err in law by conducting a “hybrid” hearing whereby the advocate’s immunity issue was conflated or confused with an “interlocutory proceeding” in which the defendant sought summary dismissal of the statement of claim.

17. [70]

    In relation to the last matter (4), the issue on the notice of motion was whether the proceedings should be summarily dismissed because the statement of claim seeking damages would inevitably be defeated by the defendants’ reliance on the advocates immunity over all of the impugned acts relied on in support of the claim for damages, negligence and breach of contract (and, if it is pressed, “loss of fair hearing”). Every application for summary dismissal has the hallmarks of an interlocutory hearing (because it is not a final hearing) but, if successful, the outcome is final. There is nothing remarkable or unusual in that. In the circumstances of this case, there is no dichotomy between a summary dismissal hearing and an “immunity from suit hearing”.

Whether the pleaded claim was within the immunity?

1. [71]

   This leads me, finally, to the real issue in this appeal, namely whether Magistrate Longley fell into error by deciding that the whole of the plaintiff’s claim, and each of the causes of action pleaded in the amended statement of claim, was destined to fail on the grounds that the conduct upon which the claim was founded was caught or protected by advocate’s immunity. While the defendant advanced other arguments in favour of summary dismissal, the only basis for the Magistrate’s decision was the finding that the defendants were immune from suit.

2. [72]

   The Magistrate appeared to proceed in the manner urged by Mr Lloyd SC at the Local Court hearing:

3. [73]

   The plaintiff submitted orally that Magistrate Longley’s failure to work through the statement of claim, paragraph by paragraph or allegation by allegation, to determine whether it fell within the immunity, before dismissing the claim in entirety, was in error and raised jurisdictional issues. I have dealt with, and rejected, this submission.

4. [74]

   On the substantive issue of whether the immunity is a complete answer to the plaintiff’s claim, the defendants submitted that “the way the pleading is framed attracts the immunity because it is all directed at the ultimate proposition of a bad outcome being the lawful exercise of a judicial power”, [51] or to adopt the words of the High Court in Attwells v Jackson Lalic Lawyers Pty Limited (“Attwells”): [52]

5. [75]

   The defendants characterised the various allegations, grouped as they are under various breaches of duty, contractual obligations or the solicitors’ conduct rules as all addressed to the same thing: the outcome of the plaintiff’s criminal case.

6. [76]

   The immunity of advocates from suit is well established. Its rationale lies in the principle of finality and the public interest that controversies, once resolved in the course of litigation, “are not to be reopened except in a few narrowly defined circumstances”. [54]

7. [77]

   There has been some divergence of approach concerning the scope of the immunity in civil proceedings and, in particular, its applicability to settlement negotiations. Otherwise the scope and operation of the immunity is relatively free of controversy. In Rees v Sinclair, [55] McCarthy P said at [87]:

8. [78]

   This approach has been endorsed in Australia and the United Kingdom. [56] In D'Orta-Ekenaike v Victoria Legal Aid, [57] Gleeson CJ, Gummow, Hayne and Heydon JJ confirmed the approach taken by Mason CJ in Giannarelli v Wraith [58] at [85]-[87]:

9. [79]

   In D’Orta, it was held that the advice that led to the applicant entering a plea of guilty to criminal charges at a committal hearing was covered by the immunity. The High Court has been invited to revisit the formulation of the immunity described in Gianarelli and D’Orta more than once. It has declined that invitation on each occasion.

10. [80]

    The issue of whether the immunity attaches to omissions or negligence in the form of a failure to prepare adequately (or at all), is an issue in the present case. In Keefe v Marks, [59] the majority (Gleeson CJ and Meagher JA) held that a failure to plead (and claim) interest and the failure to advert to that issue “in chambers” (as well as in court) was covered by the immunity. Gleeson CJ said at 720:

11. [81]

    In Nikolaidis v Satouris, [60] part of the claim was pleaded as a beach of statutory duty under the Fair Trading Act 1987 (NSW), in addition to a breach of contract and an action in negligence. The impugned conduct resulted in the applicant settling his claim. Barrett J (with whom Beazley P and Ward JA agreed) held that the immunity extended to each of the pleaded causes of action as well as to the advice provided to settle the case.

12. [82]

    However, in Attwells v Jackson Lalic Lawyers Pty Limited, a majority of the High Court held (for example, at [43]-[46]) that negligent advice provided outside of the courtroom, that does not lead to the exercise of a judicial function, is not caught by the immunity. At [38] the majority stressed the purpose and source of the immunity:

13. [83]

    Their Honours also held:

14. [84]

    The majority stated their conclusion at [45]:

15. [85]

    In Kendirjian v Lepore, [62] the High Court allowed an appeal from the Court of Appeal which had distinguished the decision in Attwells. The High Court held that advocate’s immunity from suit does not extend to advice not to compromise in a proceeding. Edelman J (with whom Kiefel CJ, Bell J, Gageler, Keane J and Nettle J agreed) rejected the “illusory distinction” contended for by the second respondent and decided:

16. [86]

    I am satisfied that, however the plaintiff frames his case against the defendants, it is bound to be defeated by the claim of advocate’s immunity. For the most part, this is self-evident from the way the statement of claim is drafted. In other instances, the applicability of the immunity is less patently obvious because the plaintiff has formulated his cause of action in a particular way to avoid the implications of the immunity. That is not meant as a criticism; the plaintiff was on notice from the original defence, and his interactions with Magistrate Atkinson, that the immunity was a live issue. However, upon close consideration of the damages particularised in the amended statement of claim, it is clear that each cause of action, insofar as it sounds in damages, is based on impugned conduct in the preparation of and conduct of the criminal proceedings. Further, there is nothing in the statement of claim that suggests the defendants were engaged for any purpose other than to advise, prepare and appear in those proceedings. This is not to say that the fact there was litigation on foot means that any wrong asserted by the plaintiff is covered by the immunity.

17. [87]

    One of the more clear cut cases of the applicability of the immunity arises from the newly formulated “third cause of action”, which is stated as being “LOSS OF FAIR HEARING”. Leaving aside the defendant’s assertion that there is no such independent cause of action, the cause of action on its face is intimately connected to the conduct of criminal litigation. The damages sought make that clear:

18. [88]

    I note in passing that this “third cause of action” is said to arise from the second defendant “waiving his right to solicitor immunity.” [65] This is a matter the plaintiff appeared to seek to withdraw as the Magistrate delivered his judgment. [66] However, the Magistrate did not acknowledge that submission, merely saying “No, my turn”. Nothing turns on this.

19. [89]

    The cause of action based in negligence is also a clear cut example of an alleged civil wrong that is bound to be defeated by the defendants’ immunity from suit. The conduct particularised in the amended statement of claim is overwhelmingly concerned with the preparation and conduct of the criminal case, including alleged failures to research the law and provide advice, identification of available defences, gathering evidence or failing to gather evidence, allowing the plaintiff to ask questions, and so on.

20. [90]

    Some of the allegations under the cause of action pleaded in negligence may appear to be further removed from an intimate connection with the criminal proceedings; for example, the failure to “issue documentation regarding transactions and agreements” and purported failures to comply with the solicitors’ conduct rules. However, again, the sole basis of the relationship was for the defendants to conduct the criminal proceedings and the particularisation of damages makes the intimate and functional connection to the litigation clear:

21. [91]

    The same applies to the action for breach of contract. Most of the alleged breaches are self-evidently connected to the criminal case and its preparation. For example, the breach of the contractual obligation to allow the plaintiff to ask a lot of questions, to be hands on, and the failure to follow instructions, arises from the preparation of the criminal case for the defended hearing. It is true that the allegations of breaching the Legal Profession Uniform Law and fees disclosure requirements are probably outside of that scope, but these do not form part of the damages claimed:

22. [92]

    Leaving aside their apparent randomness (not to say caprice), and assuming favourably to the plaintiff that they could be established, each of these heads of damage arise from the alleged breaches in the conduct and preparation of the criminal proceedings. Each is caught by, and would be defeated by, the defendant’s immunity from suit.

Conclusion and orders

1. [93]

   For the foregoing reasons, I am satisfied that Magistrate Longley was correct to conclude that the amended statement of claim should be summarily dismissed. It was bound to be defeated by the defendants’ reliance on the advocate’s immunity. None of the alleged errors of law or failures of process (bias, denial of natural justice, abuse of process) ventilated on the hearing have been established.

2. [94]

   There is no reason that costs should not follow the event and there will be a costs order in the defendants’ favour.

3. [95]

   Accordingly, I make the following orders:

   1. (1)

      Extend time to file a notice of appeal

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

   4. (4)

      The plaintiff is to pay the defendants’ costs.