[Home] [Databases] [WorldLII] [Search] [Feedback]

8/14/2019 [Home] [Databases] [WorldLII] [Search] [Feedback]

1/57

[Home] [Databases] [WorldLII] [Search] [Feedback]

High Court of Australia TranscriptsYou are here: AustLII >>Databases >> High Court of Australia Transcripts >> 2004 >> [2004] HCATrans 118

[Database Search] [Name Search] [Recent Documents] [Noteup] [Download] [Context] [No Context] [Help]

D' Orta -Ekenaike v Victoria Legal Aid & Anor [2004] HCATrans

118 (20 April 2004)

--

D' Orta -Ekenaike v Victoria Legal Aid & Anor [2004] HCATrans

118 (20 April 2004)Last Updated: 20 April 2004

[2004] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the RegistryMelbourne No M61 of 2003

B e t w e e n -RYAN D ORTA -EKENAIKE

Applicant

and

VICTORIA LEGAL AID

First Respondent

IAN DENIS McIVOR

Second Respondent

GLEESON CJMcHUGH JGUMMOW JKIRBY JHAYNE JCALLINAN JHEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 20 APRIL 2004, AT 10.16 AM

Copyright in the High Court of Australia

MR N.A. MOSHINSKY, QC: If the Court pleases, I appear with my learned friend, MR V. RUTA, for the
http://opt/scribd/conversion/tmp/scratch2326/smb://http://databases.html/http://databases.html/http://www.worldlii.org/http://forms/search1.htmlhttp://austlii/feedback.htmlhttp://opt/scribd/conversion/tmp/scratch2326/smb://http://databases.html/http://databases.html/http://au/other/HCATrans/http://au/other/HCATrans/2004/http://form/search1.html?mask=au/other/HCATranshttp://form/search1.html?mask=au/other/HCATrans&title=1http://au/other/HCATrans/recent.htmlhttp://cgi-bin/sinosrch.cgi?method=boolean&query=HCATrans+2004+118%20or%202004+HCATrans+118http://au/other/HCATrans/2004/118.txthttp://cgi-bin/sinodisp/au/other/HCATrans/2004/118.html?&nocontext=1http://austlii/help/cases.htmlhttp://www.austlii.edu.au/au/cases/cth/HCATrans/2004/118.htmlhttp://opt/scribd/conversion/tmp/scratch2326/smb://http://databases.html/http://www.worldlii.org/http://forms/search1.htmlhttp://austlii/feedback.htmlhttp://opt/scribd/conversion/tmp/scratch2326/smb://http://databases.html/http://au/other/HCATrans/http://au/other/HCATrans/2004/http://form/search1.html?mask=au/other/HCATranshttp://form/search1.html?mask=au/other/HCATrans&title=1http://au/other/HCATrans/recent.htmlhttp://cgi-bin/sinosrch.cgi?method=boolean&query=HCATrans+2004+118%20or%202004+HCATrans+118http://au/other/HCATrans/2004/118.txthttp://cgi-bin/sinodisp/au/other/HCATrans/2004/118.html?&nocontext=1http://austlii/help/cases.htmlhttp://www.austlii.edu.au/au/cases/cth/HCATrans/2004/118.html


2/57

applicant. (instructed by BTE Flynn Murone & Co)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D MASEL, for thefirst respondent. (instructed by Ebsworth & Ebsworth)

MR N.J. YOUNG, QC If the Court pleases, I appear with my learned friends, MR D.F. HORE-LACY,QC, MR B.G. WALMSLEY, SC, MR G.A. DEVRIES and MR G.M. HUGHAN, for the secondrespondent. (instructed by Beckwith Cleverdon Rees)

GLEESON CJ: Yes, Mr Moshinsky.HAYNE J: Just before you begin, Mr Moshinsky. As counsel for all parties no doubt are already wellaware, I am married to a practising barrister. I do not consider that that presents any difficulty orembarrassment of any kind in my hearing the application, but I ask that that matter be drawn to the attentionof the parties.

MR MOSHINSKY: Thank you, your Honour. We have no objection.

GLEESON CJ: Yes, Mr Moshinsky.

MR MOSHINSKY: If the Court pleases, this appeal from the Court of Appeal of the State of Victoria raisesimportant questions of law concerning the nature and scope - - -

GUMMOW J: It is not an appeal yet, Mr Moshinsky.

MR MOSHINSKY: This application for leave to appeal raises important questions of law concerning thenature and scope of advocates immunity and whether the principles supporting this immunity shouldcontinue to be accepted as part of the law of Australia. Our contention is that this Court should grant leave toappeal and should hold that the immunity is not part of the law of Australia or, alternatively, should confinethe scope of the immunity to actions occurring during the conduct of the trial. The facts of the case squarelyraise these issues.

GLEESON CJ: Could I ask you one question about the pleadings. On page 10 of the application book, inparagraph 25, it is said that:

The prosecution relied upon the evidence referred to in paragraph 24

that is, the evidence of the plea of guilty that proved the charge against the plaintiff?

MR MOSHINSKY: Yes.

GLEESON CJ: I assume that the prosecution also relied upon other evidence?

MR MOSHINSKY: Yes, that is the case.

GLEESON CJ: So there is no question that the prosecution relied solely on the evidence of the plea ofguilty?

MR MOSHINSKY: That is correct, your Honour.

GLEESON CJ: In due course, you will explain to us how you intend to prove causation.

MR MOSHINSKY: Thank you, your Honour, I will deal with that issue. The Court has before you thechronology which sets out the circumstances. We have, in addition to the material filed before the Court,made reference to the transcript of the hearing before his Honour Judge Duckett in the second trial of theapplicant, where his Honour ruled that he would not admit into evidence the plea of guilty in the committal.

GLEESON CJ: There was an objection to the evidence of the plea of guilty at the first trial, was there not?

MR MOSHINSKY: Yes.

GLEESON CJ: And that objection was overruled?

MR MOSHINSKY: Overruled, but in the second trial that objection was upheld, and, as part of ourmaterial, we have made reference to it and would like to tender to the Court that particular transcript.

GLEESON CJ: Could we also have the relevant part of the transcript of the first trial, concerning the


3/57

admission of the evidence over objection?

MR MOSHINSKY: I will seek instructions on that. Regrettably we have not come to Court with that.

GLEESON CJ: There is no need to give it to us today. You can let us have it within the fortnight.

MR MOSHINSKY: Yes. We will send it to the Court.

KIRBY J: Was this material that you are tendering now part of the record in the courts below?

MR MOSHINSKY: It is part of the record. It is a ruling of Judge Duckett in the second trial.

KIRBY J: Yes, but we are in the civil jurisdiction here, we are not in the criminal jurisdiction, and, as Iunderstand it, the case in the civil jurisdiction proceeded on the basis of an application for a permanent stay

before Judge Wodak.

MR MOSHINSKY: That is so, yes.

KIRBY J: That was conducted, was it, solely on the basis of the pleadings or - - -

MR MOSHINSKY: It was, your Honour, yes.

KIRBY J: - - - on the material from the criminal trials?

MR MOSHINSKY: It was conducted solely on the question of pleadings. To cut to the point, your Honour,the reason why we want to tender the transcript - - -

KIRBY J: I understand why you want to. I am just being obedient to the - - -

GLEESON CJ: I do not understand why you want to. I was interested to hear your explanation.

MR MOSHINSKY: We say the case clearly comes to the Court on the basis that negligence can be provenon the pleadings, because that was the finding made by his Honour Judge Wodak, and I will refer you to the

passage exactly where he makes that ruling. One of the submissions made by the second respondent is thatthe allegation in the pleading, namely, that there is no defence to the charge, should be interpreted in a waywhich suggests that it is to be considered as a statement that there is no defence on the facts to the charge,that you will not be believed by a jury.

We say that his Honour Judge Wodak, having found and proceeded on the basis that negligence can beproven, that is not something that is open anymore before this Court. However, if the Court does wish tolook further into the matter and wants to look at the way in which that pleading is to be interpreted, we saythat his Honour Judge Duckett found in his ruling on the voir dire in the second trial, at page 58, that and Iquote:

I am satisfied that the plea that was entered was as a result of considerable pressure applied bythe accuseds previous legal advisers and that it could well have been given in the mistaken

belief that the accused had no defence in law to the charge of rape.

KIRBY J: As I understand it, your complaint is that you were knocked out without ever given theopportunity of a trial - - -

MR MOSHINSKY: That is so.

KIRBY J: - - - on the basis of pleading documents, and that you have never had the chance to produce theevidence that you say would sustain your cause of action.

MR MOSHINSKY: Absolutely, your Honour.

KIRBY J: If there is no immunity, the question is presented as to whether the gate was locked and barredand you could not get pass it.

MR MOSHINSKY: Yes. We say that if it is necessary, the second respondent in its argument has raised acontention.

KIRBY J: They say there was no evidence. You have not got to the evidence yet.

MR MOSHINSKY: They say that in a case involving advocates immunity, the relevant facts include those


4/57

disclosed in the judgments in the proceedings from which the claim arises. They seek to draw some comfortfrom certain findings of the Court of Appeal in the case where my client appealed to the Court of Appeal, thecriminal appeal as a result of which his first conviction was overturned. We say that if the Court does godown that path, a relevant judgment would be that of his Honour Judge Duckett, who has said plainly thathis finding was that the plea was entered as a result of pressure because of a mistaken belief there was nodefence. Our fundamental submission is that all that really does not matter at all because if one looks at theapplication book - - -

KIRBY J: Well, are we going to get this material or are we not?MR MOSHINSKY: Well, we do wish to put forward. We have referred to it in our summary as anexplanation as to why in the second appeal, the second trial, there was no evidence led about the plea ofguilty at the committal.

GUMMOW J: Was this material before the Court of Appeal?

MR MOSHINSKY: It was not before the Court of Appeal.

GUMMOW J: Well, how do we get it?

CALLINAN J: I suppose this is an application for special leave and these may be facts bearing upon anapplication for special leave which could be proved in order to induce the Court to give you special leave.

KIRBY J: Even if you could not get them in in the appeal.

MR MOSHINSKY: No.

KIRBY J: This Court has taken a very stringent view concerning dealing with appeals on the basis of therecord.

MR MOSHINSKY: Yes. I should say that we are only leading this to rebut a point that has never beenraised before. It has only been raised in submissions before this Court. At no stage has there been anycontention made that this case is other than a clear-cut pleading of negligence. His Honour Judge Wodak hasexpressly found this to be the case. If your Honours would look at the application book, page 29,

paragraph 11, at the top of the page, his Honour concluded that:

I must assume for the purpose of these applications that D Orta -Ekenaike could establish thenegligence or breach of duty alleged against each Defendant. That assumption is a necessary

precursor to the reliance sought to be placed on the immunity defence by each Defendant.

So we contend that none of this really matters, but because our friends for the first time have raised apleading point about interpreting the way in which the allegation of negligence is put, and because they do iton the basis of the principle they allege applies, namely, that in a case involving advocates immunityrelevant facts include those disclosed in the judgments in the proceedings from which the claim arises, wesay that it is relevant not only to look at the Court of Appeal findings which they rely on, but the actualfinding of Judge Duckett. So it is very much to meet their case.

We also wish to add that when this matter came before his Honour the Chief Justice and Mr Justice Hayneon 3 October in Melbourne last year, the parties were asked what was meant by the allegation, You willhave no defence to the charge. Counsel representing the second respondent made no submissions of thekind that are now being made. There was no answer or submission made that the allegation is merely there isno defence on the facts. So this is the very first time the matter has been raised.

The first respondent, when asked that question, agreed that the case had always been conducted on the basisthat no defence to the charge meant no defence in law to the charge. That was my contention as well. So thatthis is very much a side issue, which we say probably does not arise and you may not even need to look atthis transcript, but should it become necessary for you to do so because you consider there is some merit inthe point about construing that pleading, we would like to tender that transcript for your reference.

CALLINAN J: Like the Chief Justice, I am also concerned about the question of causation.

MR MOSHINSKY: Certainly.

CALLINAN J: You see, on one view, perhaps, the true cause of such disadvantage as your client suffered


5/57

may have been the failure of the first trial judge to uphold the objection, the objection which was apparentlyupheld at the second trial.

MR MOSHINSKY: With the greatest respect, your Honour, this case comes before the Court on the basisthat negligence can be proven, and that includes causation.

CALLINAN J: I understand that, but causative negligence may be a different question. Even if negligenceis accepted, ultimately a court would need to be satisfied that that negligence was causative and anintervening fact or circumstance may well have been the failure of the first trial judge to uphold the

objection.

KIRBY J: As I understand it, and I will not say it again, you have been knocked out without a trial - - -

MR MOSHINSKY: Absolutely, your Honour.

KIRBY J: - - - and this is the place, the trial, where those matters could be explored. We are only dealingwith a preliminary legal question.

CALLINAN J: For my own part, Mr Moshinsky, I am just telling you that I would like to see that because Iam interested in the question of causation. This is an application for special leave, not an appeal.

MR MOSHINSKY: Yes. Your Honour, to answer your Honours inquiry, the way the case would be put at

the trial, should it be conducted, would be to draw comfort from the decisions of this Court which deal withthe scope of risk the principles which allow negligence to be established, if a breach of duty is established,because a particular form of harm is foreseeable and the particular harm that occurs falls within the scope ofthat risk. It is the scope of risk test which has been used sometimes in medical negligence cases and

personal injury - - -

CALLINAN J: I will say it once more: you still have to prove causation.

MR MOSHINSKY: We will. We will prove causation because we say that if a barrister negligently anderroneously advises about a plea, saying You must plead guilty, it is foreseeable that the kind of harm thatwas likely to flow from it is that at a subsequent trial when there is a change of plea, the change of plea couldhave a prejudicial effect on the ultimate outcome.

GUMMOW J: One of the reasons for the immunity may be thrown up by what is being debated with you.You cannot call the judge. You cannot call these juries. How do these issues get decided?

MR MOSHINSKY: In many cases involving loss of chance, for example - - -

GUMMOW J:No, these counsel immunity cases, how do they get decided?

MR MOSHINSKY: I am not clear on your question, your Honour.

GUMMOW J: How are you going to have a trial to thrash out these issues when you cannot call some ofthe relevant actors, namely, the judges and the juries?

KIRBY J: Presumably, you would call the plaintiff and you would call other barristers or experts who

would have analysed the material and give their expert opinion, like any other negligence case.MR MOSHINSKY: Yes.

GUMMOW J: On a question of fact.

MR MOSHINSKY: We say it is a common procedure. I was going to explain that quite often there arecases andKitchen is an example where a solicitor is sued for some sort of error or negligent conductwhich has led in a civil case to a wrong outcome or a better result might have been obtained and all the factsare brought before the court and the court then makes a calculated, realistic appraisal on a balance of

probability, would the result have been different? Was there a chance that something might have beendifferent? That can be done as a matter of common sense, applying common sense to the available evidence.

HAYNE J: With one hand tied behind your back because you cannot ask the persons who were making thedecision which is in issue.

MR MOSHINSKY: It is certainly not possible to do that, but if I can say to your Honour, look at the broadpicture. A person is charged with a serious offence. There is a jury. The jury hears that he pleads guilty at acommittal. Now he wishes to plead not guilty.


6/57

GLEESON CJ: The jury hears that as a result of an erroneous decision of the trial judge.

MR MOSHINSKY: Yes.

HAYNE J: Is that right because I thought the Court of Appeal here said that the decision to admit theevidence was not erroneous and that the error lay in the failure to give adequate instruction about its use.

MR MOSHINSKY: That is so, your Honour, but - - -

HAYNE J: So there is no erroneous admission of evidence. The error is in want of proper instruction, which

is an error, so it seems, of trial counsel. Where do we go from there?

MR MOSHINSKY: It is not the source of the error that is relevant, with respect, your Honour. What we sayas a matter of probability is this, that if the plaintiff had been given correct advice, given a chance not to

plead guilty or to - - -

GUMMOW J: Correct advice.

MR MOSHINSKY:Non-negligent advice.

GUMMOW J: Yes.

MR MOSHINSKY:Non-negligent advice as a result of which no plea of guilty had been entered in thecommittal, the trial would have been conducted, probably in much the same way as the second trial where hewas acquitted. The fact that he was acquitted in the second trial is evidence upon which one can rely thatmost probably, had he been properly advised, not in a negligent manner, had there been not a plea of guiltythat was used against him, quite probably he would have had the same result.

McHUGH J: But how can the result at the trial be admissible at all? One of the things that one has to faceup to in this case, it seems to me, everything is up for redetermination including whether the evidence was

properly rejected at the second trial or should have been admitted. Every issue is up for re-examination.

MR MOSHINSKY: Yes, but we say we will cross that hurdle when the trial arises.

KIRBY J: If only you can get your trial we might go into these things.

MR MOSHINSKY: We only wish a trial. We will cross that. It is a matter of fact, your Honour, which wewill deal with.

HAYNE J:No, no. It is not a sufficient answer to say if we get to trial all will be revealed. You have tograpple with the fundamental tensions and difficulties that are revealed by this debate because those tensionsand difficulties reveal whether there should be an issue tried. You contend, do you not, that there is anoutcome that should have been obtained sooner than it was?

MR MOSHINSKY: Yes.

HAYNE J: You say that the consequences that follow from the outcome being arrived at later rather thansooner should fall at the feet of counsel?


HAYNE J: To do that, you have, do you not, to reagitate all of the issues that were agitated at the trial of thepresent plaintiff?

MR MOSHINSKY: That is so and we are quite prepared to do that. We believe that we can call adequateevidence on that issue.

HAYNE J: At the end you have to demonstrate that the result obtained could have been obtained sooner if adecision had been made by counsel different from the decision made at committal.

MR MOSHINSKY: That is so, your Honour.

HAYNE J: Even though the decision ultimately arrived at did not depend upon the adequacy or correctness

of the decision which counsel made at committal.MR MOSHINKSKY: With the greatest respect, we join issue with your Honour on the last part of youranalysis. We say that if counsel had not given negligent advice and there had been no evidence available orwhich could be led of a previous plea of guilty, that element of prejudice would not have been suffered by


7/57

our client and the client would not have been convicted in the first trial. That flows as a matter of probability.All those facts can be very easily proven by expert evidence and the like about the fact that the advice waserroneous and it was negligent. Experienced criminal barristers can give evidence about the prejudicialeffect, or the effect that very often happens, when a change of a plea is given at a trial.

It is then a matter for the jury, or for the judge ultimately hearing the case, to determine as a matter ofprobability whether that causative effect is established. We say that it is certainly a very probable thing thatif that change of plea evidence had not been given our client would have been acquitted, as he was in the

second trial. That is a matter for, ultimately, a judge or a jury hearing this particular claim. But these arequestions of fact which we say we are determined to prove if we are given a chance to have a trial.

HAYNE J: And depend upon this Court re-expressing the common law, do they not?

MR MOSHINKSKY: That is so.

HAYNE J: Why should this Court re-express the common law arrived at in Giannarelli v Wraith? Whatreasons are advanced for doing so, other than the fact that the House of Lords has re-expressed the commonlaw for England?

MR MOSHINKSKY: With respect, we have a number of submissions on that. We say that many of theconsiderations which Lord Steyn inHall v Simons regarded as significant, for the purposes of reconsidering

the immunity, also apply to Australia. For example, he mentioned the fact that solicitor advocates may nowadvertise. He actually referred to barristers who can now advertise, but in Victoria barristers cannot butsolicitor advocates can advertise. He referred to the fact that solicitors and barristers must carry insurance.

Now, we have a situation where both - - -

GUMMOW J: Well, that is right, must carry insurance. That assumes availability of insurance at reasonablerates, does it not?.....They were much informed by that by recent events in New South Wales, at any rate.

MR MOSHINKSKY: Yes, but, with respect, we say that the question of heaviness of insurance iscompletely irrelevant to the justification for the immunity.

GUMMOW J: Why?

MR MOSHINKSKY: Because the immunity exists - - -GUMMOW J: You relied on it because Lord Steyn referred to it. I am saying that is a rather faciletreatment of it. It is a deeper question than that.

MR MOSHINKSKY: What we say is that one of the factors Lord Steyn relied on is that barristers mustnow carry insurance, which suggests that there is an ability to deal with claims where immunity is removed.Your Honour has said to me, but, of course, this will lead to extensive insurance premium rises - - -

GUMMOW J:No, no, I said it assumes there is an available market of insurers offering to take the risk.

MR MOSHINKSKY: Yes.

GUMMOW J: Which may not be the fact.

MR MOSHINKSKY: We contend there is insurance available, and certainly our friends from the secondrespondent are perhaps a bit betterinformed, but there has been no suggestion there is no available - - -

GUMMOW J: Justice McHugh and I talked about these considerations inEsanda, I think.

MR MOSHINKSKY: We contend there is available insurance for barristers and solicitor advocates.

KIRBY J: Many surgeons constantly complain about the cost of their insurance, but it has not so far been areason for the common law to withdraw their liability in negligence.

MR MOSHINKSKY: We certainly accept what your Honour has said, but the issues of - - -

McHUGH J: The question is not whether you withdraw, it is a question whether you add a liability to thecommon law which did not exist before.

KIRBY J: It is pleasing to see insurance intruding into the practical considerations of the Court. Normally,we forget about it.


8/57

McHUGH J: Well, I did not forget about it inEsanda.

GUMMOW J:Neither did I.

GLEESON CJ: Well, what is important is not only that we remember it, but that also what we think weknow about it is right. How do we test that?

MR MOSHINKSKY: We say that something as important as this immunity rule should not be in existencein our law purely on the basis of intuitive perceptions, in the absence of empirical evidence.

GLEESON CJ: Exactly.

GUMMOW J: Exactly, and that is what Lord Steyn seems to - - -

MR MOSHINSKY: With respect, we say that is what the House of Lords did in Rondel v Worsley, thatmany of the principles upon which they relied were entirely intuitive and untested by empirical tests.Mr Justice Krever in Canada inDemarco made that very point very clearly. He said it is not tested and it isnot proven and For many years we in Canada have not had any evidence to suggest that harm will flow ofthe kind suggested. In Canada they have never had immunity, but there is absolutely no suggestion of anavalanche of claims.

HAYNE J: That is not right. Prosecutors have had immunity, have they not?

MR MOSHINSKY: They have had immunity, that is so, but - - -

HAYNE J: You cannot simply shell those aside as irrelevant. There are some immunities that attend someactors in the curial process.

MR MOSHINSKY: I accept that, your Honour.

HAYNE J: You have to advance a theory which accommodates that fact, in particular, that accommodatesthe fact that if counsel deliberately, maliciously sets out in court to defame someone, counsel is not to besued for the defamation deliberately and wilfully done. If that is so, why do you say we should have liabilityfor negligent conduct? There has to be some grappling with the theories that - - -

MR MOSHINSKY: We certainly intend to deal with that, with all these issues, and I would like to examine

each of the policy considerations carefully.

GLEESON CJ: I think you have only got as far as the second of the changed circumstances that Lord Steynrelied on.

MR MOSHINSKY: Yes. The third one is that solicitors and barristers can now enter contracts with clients.We say, as a matter of experience, particularly in New South Wales, this is very common.

GUMMOW J: What is his Lordship saying, with an exemption clause?

MR MOSHINSKY:No, but it is a sign, your Honour, that clients approach a barrister or a solicitoradvocate in a commercial way seeking value for their services. There is a contract between the client and theadvocate. It leads to the main point that his Lordship - - -

GUMMOW J: Well, wait a minute. We are greatly advantaged here in this Court from time to time by probono activities of counsel. They give a voice to a person who otherwise would not have an informed voice.

MR MOSHINSKY: Certainly

GUMMOW J: Are they accommodated in this scheme of Lord Steyns?

MR MOSHINSKY: There is certainly a great deal of pro bono work, but at the same time Lord Steyn, wesay correctly, points out that we live in a consumerist society and that more and more people in oursociety - - -

GUMMOW J: What does that mean?

MR MOSHINSKY: It means, with respect, your Honour, that people want value for money. It is no longerthe case of the barrister or the advocate performing a duty in an honorary way. There is some element of thatin practice, but it is a commercial process no different to many other professional people: accountants ordoctors. Money is paid and there is a desire for proper standards in the community.


9/57

KIRBY J: Many medical practitioners offer their services pro bono.

MR MOSHINSKY: They do, but, nevertheless, there is liability in negligence because on the whole thetransactions between members of the community and professionals are in a commercial context.

HAYNE J: Which is a purely bipartite transaction.

MR MOSHINSKY: Yes

HAYNE J: The transactions with which we are centrally concerned here are not confined to transactions

between counsel and client. There is an opponent. There is a court. There is further the instructing solicitor let us leave that one aside. But at least there are four parties concerned, one of which the court is there, ifyou like, as a societal representor. So that analogies with bipartite transactions are not entirely apt.

MR MOSHINSKY: Your Honour, with respect, the thrust of what Lord Steyn is saying is that times havechanged. We live in a consumerist society. People expect advocates to provide reasonable services and to beaccountable in law if they fail to provide services of an appropriate standard.

McHUGH J: Yes, but that is hardly a test for imposing liability for negligence. People expect journalists tobe careful when they write articles, but, unless they defame a person, they are not liable in negligence tosomebody who may be affected by their article, because they do not owe that person a duty of care. A

journalists article may do enormous harm, but the journalist cannot be sued in negligence unless there is

some very special relationship with the person involved.

There are numerous illustrations where people cannot be sued in negligence. If army officers make a wrongdecision and send somebody to his or her death, they cannot be sued in negligence. The prevailing doctrineat the moment is that entities like ASIC owe no duty of care to investors. Auditors do not owe a duty toinvestors that they are not in contractual relationship with. There are numerous illustrations of peoplesuffering wrongs through the carelessness of others and yet having no remedy.

MR MOSHINSKY: Nevertheless, Lord Steyn, your Honour, was pointing to that consideration as arelevant factor to reconsider the public policy considerations underpinning this immunity.

McHUGH J: Can I just say this to you, Mr Moshinsky, I think it invites error to look in this particular area

to other countries. Take the law of defamation. New South Wales is the defamation capital of the world. Youwill get far more defamation actions in New South Wales than you will in any province of Canada, or, forthat matter, England. Experience in other countries tells you nothing about what is likely to happen in thiscountry. It is a matter for you, and no doubt you will want to rely on these statements in other countries, butthe fact is it has to be tested under Australian conditions.

MR MOSHINSKY: I accept that, your Honour, but we say that there is a commonality in the culturalmilieu that we live in between the British experience and the Australian experience.

GUMMOW J: Let me put this to you, Mr Moshinsky, I think there was a spectre at the feast in that Englishcase and the spectre was the European law. On one view of it, it might be that this is a pre-emptiveadjustment of the common law in anticipation of what might otherwise be forced on them by Europe.

MR MOSHINSKY: With respect, your Honour, we say that, carefully analysed, the speeches dealmeticulously with each of the - - -

GUMMOW J: Of course. It is a spectre that is not in the forefront of the judgments.

MR MOSHINSKY: Yes. It is very hard to answer that - - -

GUMMOW J: I am talking about the cognoscenti, what sound people thought was going on.

MR MOSHINSKY: But, after all, Australia is part of a western world where the influences that play uponthis country are not all that foreign to the influences that play on Europe..

GUMMOW J: The tradition of an independent Bar has no place in Europe, does it?

MR MOSHINSKY: It does not, but the - - -

GUMMOW J: The recruitment of the Bench from an independent Bar has no place either, and jury trial hasno place either.

MR MOSHINSKY: But Australia is just as much party to treaties which call upon the right of persons to be


10/57

able to have access to the courts, which is really no different to what the European treaty was about.

GUMMOW J: They do not learn about the Magna Carta in France, I do not think, or Germany.

MR MOSHINSKY: Well, they had the Revolution.

GUMMOW J: They did, and an authoritarian system.

MR MOSHINSKY: Lord Steyn, I may say, drew some comfort from the European advocates practicebecause he said although their rules are different it is a significant fact that, absent the immunity, there still

did not seem to be an avalanche of suits or problems and although they have different methods of practiceand the judge may have a more significant role, the duties on counsel to reveal adverse authorities does notexist. There are significant differences, but yet it is a western country with the same high level ofexpectations in the community, performance by lawyers, and yet there is not any evidence of the problems.

McHUGH J: Yes, but there is a problem even comparing different States. Take New South Wales andVictoria. In my lifetime, the New South Wales personal injury litigation outnumbered Victoria by a hugeamount. You only had to compare the law lists of 30/40 years ago to see, but New South Wales was a muchmore litigious society than Victoria was. Things may have changed in Victoria, I suspect they have, but it isvery difficult to draw on what happens in Europe and say if it did not happen in Europe, it will not happenhere. It may or may not.

KIRBY J: I thought we were dealing with a general principle of the common law that is applicablethroughout Australia. The common law in Australia is uniform.

MR MOSHINSKY: We certainly say it is uniform and that the common law principle derives from theUnited Kingdom and where - - -

HAYNE J:No, no, the common law principle that we are talking about derives from Giannarelli v Wraithand the immediate question is, why should the Court restate the common law in Giannarelli v Wraith? At themoment, you point to a decision of the House of Lords.

MR MOSHINSKY: Yes.

HAYNE J: The Court decided in 1963 that that was not reason enough to restate the common law.

KIRBY J: I think you are trying to go through the policy and other reasons expressed by the House ofLords.

MR MOSHINSKY: I have come to the end of that list, but I want to go to what New Zealand has said in theCourt of Appeal.

GUMMOW J: What is the list then? What is - - -

MR MOSHINSKY: The list essentially is that we live in a consumerist society. Expectations have beenraised that there be a liability by professionals.

CALLINAN J: Who has raised the expectations? The media?

MR MOSHINSKY: It is the nature of change. The modern society we live in has - - -

CALLINAN J: How can you possibly say that? How can you gauge that and how informed are theseexpectations? Do they take into account any of the matters which have been referred to by the members ofthis Court, even so far in this debate?

KIRBY J: That is the question the Court has to weigh.

MR MOSHINSKY: What I am dealing with, your Honour, is the question of should the Court reconsiderGiannarelli? I would point, essentially, to three factors: firstly, the list of Lord Steyn which, in essence,focuses on the consumerist point; secondly, I want to point to what the High Court in New Zealand said in

Lai v Chamberlains, where they confined the immunity to in-court immunity only - - -

GLEESON CJ: What is the reference to that?

MR MOSHINSKY: It is an unreported decision.

HAYNE J: I think not, it is [2003] 2 NZLR 374.


11/57

MR MOSHINSKY: Yes, thank you. Justice Laurenson in that case, examining the changed condition in thepractice of law in New Zealand, we say referred to a number of factors which were pertinent to Australia. Hesaid there was a substantial retreat of the oral provision in litigation other than in criminal law practice. Hesaid that:

the element of uncertainty and surprise has been significantly removed by the acceptance of andpretrial exchange of written briefs and submissions.

We say that therefore - - -HAYNE J: It will come as a great surprise to most members of counsel that the element of surprise had leftthe courtroom, Mr Moshinsky. We might have seen some this morning.

MR MOSHINSKY: It has not completely left it, but there has really been a change, your Honour, to adifferent mode of practice in the use of written submissions, statements of facts and contentions as acommon practice, both in the Supreme Courts and in the Federal Court. That, of course, brings theadvocates role out of the courtroom, and, as Lord Diplock pointed out, where a barrister is making adecision in the calmer circumstances of his chambers, rather than the pressure of court, there is less reasonfor the immunity rule to apply. We, therefore, say that there has been a movement in that direction. We alsorely on what Justice Laurenson said, that in the civil area the prevalence of case management - - -

GUMMOW J: Which paragraph is this, Mr Moshinsky?

MR MOSHINSKY: Of the judgment?

GUMMOW J: Yes.

HEYDON J: Paragraph [96].

HAYNE J: The surprise element is paragraph [95], the case management elements are at paragraphs [96] to[98], I think.

MR MOSHINSKY: Thank you, your Honour. His Honour also points out that in the civil area theprevalence of case management, by allowing discovery, inspection and interrogatories, minimises the risk of

error.GUMMOW J: But we are talking about life in the District Court and County Court.

MR MOSHINSKY: Yes.

CALLINAN J: In any event, not all the results of case management have been entirely happy. Intrusion ofthe trial judge, intrusion of the judge getting into the arena often, there has been a degree of confusioncreated. I do not think it has made any relevant difference at all, case management.

MR MOSHINSKY: The way in which his Honour relied on that point was to use it as an example of moreand more emphasis being placed on preparing a case outside the courtroom, so that the element of surprise isminimised, and, therefore, the focus of the immunity which has sprung out mainly in an era, particularly in

Rondel v Worsley, of dock briefs, of people being in court and being subject to pressure the focus is nowchanging, particularly in the civil field. That is a factor which we say ought to be relevant for the purposes ofconsidering whether to change the law.

GLEESON CJ:Now, in this New Zealand case, they concluded:

There is an overwhelming case for retaining the immunity in relation to criminal and family lawlitigation.

I presume your submission is that that is wrong?


GLEESON CJ: What has happened to this decision? Has it gone on appeal?

MR MOSHINSKY: It has gone on appeal, but there has not been a result from the Court of Appeal yet.

GLEESON CJ: Has the appeal been heard?


12/57

MR MOSHINSKY: I believe so, in March.

GLEESON CJ: Do not take that personally, Mr Moshinsky.

MR MOSHINSKY: Having come from Honiara, I am very used to it. Two other points are made by JusticeLaurenson. One is that there has been an increase in legal aid, and that means an increase in the number oflitigants. As a result, there has been an increase in the expectation that the law will provide a remedy forevery wrong.

HAYNE J: What do you say is the principle that permits or requires account to be taken of such matters aswhether decisions have to be made quickly or decisions have to be made in the heat of battle? What is thesignificance of those considerations to our present debate?

MR MOSHINSKY: We say that, going back fromRondel v Worsley, through Saif Ali and, finally, inGiannarelli, one of the most predominant considerations for supporting this immunity has been what isknown as the conflict of duties point, that is, that an advocate owes a duty to his client, and an advocatealso owes a professional duty to the court.

The immunity is supported, not to help the advocate; the immunity is supported solely to help, as a matter ofpublic policy, the administration of the courts. It is considered that if a barrister was liable, or for that matterany advocate was liable to be sued, in the courtroom the judgment of the barrister might be impaired by the

fear of being sued or, as the House of Lords said, by being vexed by that problem and as a result, theperformance of a barrister would be adversely affected. It may lead to prolixity because the barrister, fearfulof suit, would ask too many questions, or questions which the client wanted to be asked but were not strictlyhelpful for the resolution of the dispute, or there might be an absence of adherence to some of the

professional standards which were required of an advocate, such as not to impugn the credit of a witnesswithout a good basis.

GUMMOW J: And not to put every point that the client wants put.

MR MOSHINSKY: And not to put every point that a client wants to put. So that where we have a muchmore diversified form of practice of the law with more emphasis on preparation outside the courtroom, morecontrol of proceedings outside the courtroom, the heat of battle point does not apply as to support that

particular form of justification.McHUGH J: But why?

KIRBY J: There is quite a bit of heat of battle in a surgeons work, a brain surgeons work and in flying aBoeing 747, but no one suggests that those professions could be immune from negligence.

McHUGH J: It is a question of standard of care, is it not, and how you judge it, which makes the barristersposition different? Not enough attention, it seems to me, to have been paid in the cases as to that one isdealing with statements or lack or statements by barristers which the common law has always regarded as ina different position to physical acts. After all, there are only so many ways, one would have thought, that youcan remove an appendix or perform some other operation. Expert witnesses can say that it should not have

been done this way, or there should have been more stitches in, et cetera, but how do you determine thestandard of care as to how people conduct cases? You have to look at this in the broad.

One counsel, take Sir Patrick Hastings, always wanted to fight a case on a single issue and was prepared toabandon everything else. Other counsel would run every issue under the sun. You talk about the heat of themoment. If you are appearing for a defendant or an accused person at the close of the other sides case youmay have to make an instant decision as to whether you call a witness and it depends on intuition, instinct asto just how far you think you are ahead with the judge or jury as the case may be. How are you going tosecond-guess those decisions? Are you going to call an expert who says, Well, Ive read the transcript,notwithstanding that the expert was not at the trial, did not see the jurors, did not see the judge, did not seethe witnesses. He should have called the accused, should have called the defendant.

KIRBY J: I imagine similar problems arise when operating on an aorta.

CALLINAN J:No, you are dealing with certain laws, scientific laws in relation to human tissues.Measurable matters.

MR MOSHINSKY: Your Honour, if I could answer that question by saying, first of all, Lord Diplock has


13/57

acknowledged that the practice of advocacy is an art, not a science. In Canada, it is also, despite thecomparative absence of immunity, acknowledged that that problem that you pose to us is a real one, so thatonly egregious forms of error are regarded as actionable.

GLEESON CJ: Yes, tell that to surgeons.

KIRBY J: But, did Lord Diplock not say something of a similar kind?

MR MOSHINSKY: Yes, he said that it would be only a case of the very clearest breach of duty that would

be actionable because a mere error of judgment would not suffice.GLEESON CJ: Would one of the reasons in favour of removing the immunity from lawyers to the extent towhich it exists be that the removal of the immunity might be to the benefit of other people who are sued for

professional negligence because it would remind lawyers of the difference between negligence and an errorof judgment?

MR MOSHINSKY: Yes. Your Honour, what we say is that it is quite possible to prove negligence against abarrister and that it is a purely a matter of providing adequate evidence. There are cases of egregious error.There are cases where no matter how much variety of views there are about the art of advocacy, they simply

just do not apply.

CALLINAN J: Mr Moshinsky, take this case. Say you were to succeed here and some other person was in

exactly the same position as your client, but six and a half years have lapsed, the limitation period haselapsed. Could that person sue the solicitors and barristers who advised him?

MR MOSHINSKY: Because the limitation period had elapsed?

CALLINAN J: I am sorry, leave out the limitation period. Assume you succeed.

MR MOSHINSKY: Yes.

CALLINAN J: The law is effectively changed.

MR MOSHINSKY: Yes.

CALLINAN J: Legal fiction is that this has always been the law.


CALLINAN J: What about some barrister or solicitor who failed to advise some other person or advisednegligently in a case like this one. Could that person then sue?

MR MOSHINSKY: Yes.

CALLINAN J: Would the barrister and solicitor be liable for not guessing that this Court was going tochange the law, effectively, here?

MR MOSHINSKY: That would be the case, your Honour, and I want to deal with that - - -

CALLINAN J: It seems a rather unjust result, does it not?

MR MOSHINSKY: That is the issue of retrospectivity and what we say is that if the policy of the lawwhich underpins the immunity is reconsidered by this Court and if, as a result, the view is reached that the

policy reasons previously relied on to support the immunity are no longer sufficient to justify this policy,then any consequences which are considered by the community to be undesirable can be addressed byParliament. This can be by the conferral of retrospective immunity if considered necessary or appropriate.

CALLINAN J: Has Parliament ever done that? Has Parliament ever done that when there has been a majorchange?

KIRBY J: It has moved in New South Wales followingBrodie, as I understand it.

MR MOSHINSKY:Brodies Case and in Victoria as well, that afterBrodies Case was decided

Parliaments reconsidered the effect of that decision.GLEESON CJ: What about Cattanach v Melchior?

MR MOSHINSKY: I am not familiar with that case, your Honour.

KIRBY J: Otherwise you could never ever re-express the common law because it is going to have an


14/57

unfortunate effect on some people.

CALLINAN J: You might re-express it incrementally, and that is in a way which would not give rise tothese retrospective problems.

MR MOSHINSKY: Your Honour Justice McHugh, I want to reply to your query about proving negligence.

McHUGH J: Standard of care, yes.

MR MOSHINSKY: I want to rely on the decision of the Court of Appeal in McFarlane v Wilkinson.

KIRBY J: Which Court of Appeal is this? There are many.

MR MOSHINSKY: In the United Kingdom, which is reported in [1997] 2 Lloyds Rep 259. That was acase involving an action against a barrister. At page 275 dealing with a failure by a barrister to plead a causeof action, in the middle of the page, Lord Justice Brooke said:

It follows from this that if a barrister omits to plead a cause of action in a situation where noother reasonably competent barrister, acting with ordinary care, would have failed to plead thatcause of action, then he or she will be liable to compensate the client if loss flows foreseeablyfrom that negligence. If on the other hand other reasonably competent barristers holdingthemselves out as competent to practise in the relevant field and acting with ordinary care might

also have decided not to plead that cause of action, then there will be no question of professionalnegligence.

GLEESON CJ: How does that stand withRogers v Whitaker?

McHUGH J: That is aBoland.

GLEESON CJ: That isBoland.

MR MOSHINSKY: Yes. Well, it could be modified to accord withRogers v Whitakerbecause it is - - -

KIRBY J: Your answer is quite Rogers v Whitakerstates the principle for other highly talentedprofessional people. What is the special reason for an exception to that on the part of barristers? It would

seem to me that if you are almost uniquely exempt there have to be very good reasons of principle. Now, thecourts have found such reasons of principle and inBoland v Yates I left open the question of whether incriminal proceedings there was a need for special protection because of the way in which criminal appealsand trials are conducted. It is exceptional and you are asking the Court whether it can now be justified.

MR MOSHINSKY: Yes. If I could turn to the particular policy reasons which have - - -

McHUGH J: Yes, but it is more when you are talking about negligence in this context, you have toconsider a situation where barristers are making judgments, often on instinct, often on intuition, often ontheir assessment of probabilities which turn out to be wrong. In the same week I once advised two clientsthat the probabilities were against them getting special leave to appeal from this Court. Both of them said tome, Thank you for your advice, but go and argue the case, and both were granted special leave. One

appeal succeeded, as I thought it would, if special leave were granted.But supposing they had gone away and had not proceeded with their special leave applications and then ayear later some other barrister said, You should have got special leave. McHugh was wrong about that. Suehim. How do you determine whether or not my judgment in those cases was right or wrong?

MR MOSHINSKY: It would be no different a question in law to determining whether a surgeon had givencorrect advice in a milieu of medical opinion which was controversial. The Court would have to do its bestto assess conflicting views about the method and manner of delivery of the advice and whether there was alegitimate scope for differences of view.

McHUGH J: I do not think the analogy is true, because when you are dealing with medical advice you aredealing with physical things, with scientific laws. In a law court, much depends on ones impression of the

court. A judge would have to be blind to think that members of the Bar do not think they have a betterchance of getting special leave from some members of this Court than they have of others. That has always

been the case. So one makes judgment about that, as a barrister.

MR MOSHINSKY: What I want to draw difference on is, on the one hand, we have clear cases of


15/57

negligence: for example, if a barrister fails to call an obvious witness who would have had a bearing on acase; in this case, if there was negligent advice about the absence of a right to contest a case in a criminaltrial; in the case ofMacRae, where there was a failure to put interest into a statement of claim. These sorts ofcases, where the result is - - -

McHUGH J: They are the clear cases.

MR MOSHINSKY: Clear cases.

McHUGH J: There is no doubt that, in that sort of case, you are on sound ground, but you just cannot pickout one instance like failing to claim interest and say, well, that shows that there are standards which aremeasurable. You have to look at the whole situation.

KIRBY J: As I understand it, your point is that if there are clear cases where there should not be animmunity, then this Court has to consider the principle upon which the immunity stands, if at all.

MR MOSHINSKY: That is so, your Honour. What we say is that there are clear cases where, by anyprofessional standard, by any professional opinion, something has gone wrong as a result of negligenceduring the trial or before the trial.

HAYNE J: Let us examine the clear case. The clear case is one where the result obtained at the trial is, inone sense, But for the negligence, the result would have been otherwise. Is that right?

MR MOSHINSKY: Yes.

HAYNE J: The result obtained at trial, by hypothesis, stands, despite the fact that other evidence might havebeen led, other points might have been taken. Is that right?

MR MOSHINSKY: Yes.

HAYNE J: What is the principle that leads to the result of the trial remaining unaltered, despite the fact thatthere was other evidence or another point that would have led to a different result and yet leads to debate inan action against counsel about whether some other result could or should have been obtained? Why is onefinal and yet the other not?

MR MOSHINSKY: We say, your Honour, that the whole issue of finality of litigation is wronglyapproached by the law, that, in the end, Mr Justice Krever was completely right when he said better that aperson have a right to go to court and challenge a negligent conduct of a case by an advocate than to bedenied the right on the grounds of some principle of finality. Given that the issue of finality is an importantconsideration in the cases, we address the matter in this way. We say, firstly, in this case, the previousconviction has been quashed. There is no public policy reason, in a case like this, where there is no possiblechallenge to a previous hearing, for that to be a policy ground to be used against us.

McHUGH J: But why? Take this case, supposing the evidence had been admitted and the jury had beenproperly instructed and your client was convicted. You must still claim that you could sue counsel fornegligence.

MR MOSHINSKY: Yes.McHUGH J: You would. So that means that the young woman who was allegedly raped would probablyhave to be called again in the civil proceedings and there would be another determination. Why should shehave to go through that again?

MR MOSHINSKY: Because we are not - - -

McHUGH J: On your theory, she will probably have to go through it again in this case because thedefendant may want to say you were guilty.

MR MOSHINSKY: Yes. We say because the previous conviction no longer stands and there is no publicpolicy reason to prevent a right of hearing in a negligence claim.

GLEESON CJ: Mr Moshinsky, this is an aspect of the matter that is troubling me. It troubles me from thepoint of view of the arguments one way and the other. Reference has been made to what is called a clearcase, but cases may be clear about different things. In one case, the negligence may be clear. In another case,the causation may be clear. Perhaps Giannarelli was such a case.


16/57

But the law in other countries has got to this situation. We have New Zealand currently saying the case forpreservation of the immunity in relation to criminal advocacy in court is overwhelming. We have the Houseof Lords in England saying four members of the House of Lords say the immunity in criminal cases shouldgo and three members of the House of Lords say the immunity in criminal cases should be retained. But ofthose who say the immunity should go, they also say there will be public policy reasons why in the greatmajority of cases you can never successfully sue a barrister for negligence in the conduct of a criminal trial.That is the area that I would like to explore by reference to the circumstances of the present case because thediscussion so far seems to have assumed that it is all or nothing. You either have a blanket immunity or you

have no immunity at all.

In a case such as the present and this is why I asked my earlier question about causation let me assumeyou have negligent advice to plead guilty to rape a plea of guilty at the committal proceedings. The plea issubsequently withdrawn. Then at the trial at which there is a plea of not guilty the trial judge admitsevidence of the earlier plea of guilty together with a whole lot of other evidence that is alleged to prove thatyour client was guilty of rape, and your client is convicted and the Court of Appeal says it was not wrong ofthe judge to admit the evidence of the guilty plea, but he misdirected the jury about the proper use they couldmake of it. Then there is a further trial and the next trial judge excludes the evidence of the plea of guilty andyour client is acquitted. On the issue of causation, what are the public policy considerations that are relevantto the investigation of whether the original advice to plead guilty was a cause of the incarceration of your

client and other harm that followed his original conviction and for which he sues?

MR MOSHINSKY: We say that it is purely March v Stramare. It is a matter of common sense.

McHUGH J: Why? The jury may have said, I believe this woman. I saw her in the witness box and shewas an honest witness. I am not concerned about the accuseds plea of guilty.

MR MOSHINSKY: That is a matter of finding of the evidence. It is not until - - -

McHUGH J: Yes, I know, but the point is, how do you know? When you ultimately come to determine thecivil case, how do you know what part the plea of guilty played in the ultimate verdict which led to theimprisonment for which you claimed damages? It may be it had nothing whatever to do with it.

MR MOSHINSKY: That is an argument that can be raised by the defence, but we say that there is enoughevidence here to suggest that, particularly by reference to the second trial where the evidence was not led,that more probably than not that had a significant causative effect.

GLEESON CJ:No one is suggesting you can sue the trial judge who gave the original erroneous directionin relation to the use of this evidence, are they?

MR MOSHINSKY: No.

GLEESON CJ: So the one group of people in the community who could never describe this immunity asunique are judges.

MR MOSHINSKY: True.

GLEESON CJ: And no one suggests that any of the witnesses at the trial could have been sued fornegligence.


GLEESON CJ:No one suggests the jurors could be sued for negligence because they made a wrongdecision.

MR MOSHINSKY: Yes.

GLEESON CJ:Now, is the barrister at the civil trial that you wish to conduct in this case going to bepermitted to defend himself by saying, Your client was guilty of rape all along?

MR MOSHINSKY: No, because that would not be a relevant consideration.

McHUGH J: Why not?

HAYNE J: Why not?

MR MOSHINSKY: Because - - -


17/57

McHUGH J: Why not? It is the very issue. You should have been convicted. You are claiming damage.You say, I was wrongly convicted and I was sent to imprisonment.

MR MOSHINSKY: We say, with respect to your Honour, the issue is whether he would have beensuccessful in being acquitted, that is just like in the second trial he was not convicted because, we say theevidence was not led. In the first trial, if there was only one trial he would not have been convicted. It is nota question of whether he is guilty of the charge. It is a question of what were his chances of being acquittedat a hearing which was a trial of the charge.

McHUGH J: This is a loss of a chance case.

MR MOSHINSKY: In the end it may be a loss of a chance or it may be a matter of probability, dependingon the full flush of evidence, but it is really no different to the cases where solicitors are sued for negligencefor wrong preparation of a case which has an unsuccessful outcome or wrong outcome. The court assessesthe probabilities or the chance involved to determine whether or not there has been a substantial loss.

GLEESON CJ:Now, how could you assess that without making a judgment as to how convincing a witnessthe young woman is?

MR MOSHINSKY: That is a matter of evidence, and that evidence - - -

GLEESON CJ: What, you mean somebody will go into the witness box and say, She was a very good

witness or She was not a very good witness?

MR MOSHINSKY: Well, she may be called and the court may then assess, by reference to her evidence,how well she was performing or how she presented her evidence. If, in fact, she performs better or worse thesecond time around that could be a factor that can be brought out. After all, it is a question of fact.

GLEESON CJ: You may be right about this, but this seems to me to be the problem, or the area, that bothsides have to address in this case. We are not here dealing with a case about the so-called immunity inrelation to civil actions.

MR MOSHINSKY: No.

GLEESON CJ: And just as the House of Lords was not dealing with a case about immunity in criminal

cases inHall, we are not dealing with a case about immunity in civil cases here. Is there thinking along thelines of what was said by some of the House of Lords in the English case a question whether an action likethis, in circumstances like this, has to be considered not only in terms of the general or blanket immunity, forwhich your opponents contend, but also in terms of the principle about collateral challenges to decisions incriminal cases of the kind that was advanced in the English decision as a reason why it would be very rarethat you could succeed in an action against a barrister for negligently conducting a criminal case.

MR MOSHINSKY: We say, as several members of the House of Lords did, that where a conviction hasbeen set aside, the principle of collateral attack has no role to play. In terms of the general principle aboutrelitigation and collateral attack, our position is thatHuntersCase and the abuse of process principles are

perfectly adequate to deal with this issue.

GLEESON CJ: Does that produce the result that you admit that your client would have no cause of action ifhis conviction had never been set aside and he was still in prison?

MR MOSHINSKY: I would have great difficulties with my case. I would say perhaps that is not thecorrect answer. First of all, we put our case fundamentally on what Mr Justice Deane said in Giannarelli andwhat Mr Justice Krever said in Canada. None of the policy reasons inRondel v Worsley could possiblyvalidly stand in the way of a person coming to court to bring a valid claim for negligence. AsMr Justice Deane said at page 587 ofGiannarelli:

I do not consider that the considerations of public policy which are expounded in Rondel vWorsley and in the majority judgments in the present case outweigh or even balance the injusticeand consequent public detriment involved in depriving a person, who is caught up in litigationand engages the professional services of a legal practitioner, of all redress under the common lawfor in court negligence, however gross and callous in its nature or devastating in itsconsequences.


18/57

GLEESON CJ: Well, then, what do you say would be your clients rights in the present case if hisconviction had never been overturned and he had not been acquitted of the second trial, but he had beenconvicted at the first trial, lost his criminal appeal, and remained in gaol?

MR MOSHINSKY: We have an alternative submission. We say that if you accept the position ofMr Justice Deane, then it would not matter, he would still have the right to sue.

GLEESON CJ: What if you accept the position that the House of Lords adopted?

MR MOSHINSKY: If you accept the House of Lords position, then I think he would have difficulty,because he would be faced with an abuse of process argument, because there was a conviction on foot in acase such as this.

HAYNE J: Would it also follow that the defence in the action could not impugn the acquittal? Would theybe prohibited from mounting a defence that this man should have been convicted?

MR MOSHINSKY: Yes, it would follow from that, your Honour. So that, as Lord Hoffmann said in HallsCase, the immunity is constructed in a way which is equivalent to burning the house down to a roast a pig and by that he meant, it is really an exaggeration or an overkill for the problems involved.

GLEESON CJ: I think that is the sort of consideration I was intending to put to you. Is there someintermediate position? See, I have in mind the history of this. As I recollect it and I happen to have been

present in argument in the House of Lords whenRondel v Worsley was being heard - untilRondel v Worsley,a view and I am not sure that this was the Victorian view, but a view was that the immunity was thecorollary of the fact that barristers had no contractual relationships with their clients.

MR MOSHINSKY: Yes.

GLEESON CJ:Rondel v Worsley, I think, then put it on a public policy basis.

MR MOSHINSKY: That is so, your Honour.

GLEESON CJ: The House of Lords in England has held that the public policy does not sustain the blanketimmunity, but, in relation to criminal proceedings, they seem to have been of the view that there will beother considerations, including, particularly, issues about collateral challenges to decisions in cases, that will

make it very difficult in practice to mount an action for negligence for the conduct of a criminal trial. Now,suppose we accept your invitation to follow the House of Lords. Where does it lead us, in relation to the

present case?

MR MOSHINSKY: We win.

GLEESON CJ: Is that so?

MR MOSHINSKY: Yes.

GLEESON CJ: That is why I asked you the question about how you are going to prove causation and aboutwhether or not your opponent is allowed to set out to prove that your client was guilty in the first place.

MR MOSHINSKY: We will prove causation. We will call the relevant evidence and expert evidence todetermine or give evidence to the Court about the proper advice.

GLEESON CJ: But can your opponent call the young woman to say, He raped me?

MR MOSHINSKY:No, we say it is not relevant because the issue is not, Is he guilty? The question is,As a matter of probability, would he have won the case?

McHUGH J: How can you determine that, Mr Moshinsky, without examining all the evidence, includingthe in-flesh evidence, that was before the jury in the first trial?

MR MOSHINSKY: You would have to look at that evidence, but it does not mean that you can have aretrial about whether he is guilty or not. The issue before the court in this civil case is, Was, by reason ofthe negligence, my client was denied the probability of winning the case, that is, of being acquitted?

HAYNE J: Did he give evidence at both his trials?

MR MOSHINSKY: Yes, he did I am told.

HAYNE J: So that there will be the imponderable of whether his acquittal at the second trial may have been


19/57

influenced by the fact that second time round he did better in the box.

MR MOSHINSKY: That is a comment that counsel can address to the jury or a judge. It is a bit like saying,in a personal injuries case, there is always a chance that illness will befall the plaintiff and she might goworse or she might get better, depending on the vicissitudes of life. These are, after all, chances which courtsalways deal with and probabilities that are often assessed in jury cases.

If I could continue. I just want to sum up a number of points. First of all, I would like to come back to theissue of Parliament or the Court. Should the Court intervene and to refer the Court to what was said by this

Court inBrodies Case.

HAYNE J: This is a bit different fromBrodie, according to the respondents, because, so the respondentssay, Parliament specifically looked at this issue in Victoria.

MR MOSHINSKY: That is an equivocal statement, your Honour, because Parliament may have looked at itthinking that this is a matter for the Court to resolve. This immunity is judge-made immunity. It is verydifferent to what was present inBrodies Case where your Honour Justice Gleeson quite clearly declined tointervene because the immunity that was in question was a product of parliamentary interference. That is tosay the Parliament created public authorities and left to the courts the duty of interpreting aspects of thematter, but there was a parliamentary involvement. This is an immunity solely created by the courts.

HAYNE J: You say there was equivocation. I am not conscious of equivocation in the explanatorymemorandum to clause 442 of the Legal Practice Bill when it says that this, that is, the clause:

preserves the common law immunity for advocates in respect of work in a court or tribunal orwork intimately connected with it.

Where lies this equivocation of which you speak?

MR MOSHINSKY: It lies at the very words your Honour has quoted because the preservation is thepreservation of an immunity created by the judiciary. It is not an immunity created by Parliament. It issaying, The courts have created it; we will preserve it. But there are times when Parliament should not be

used as the sole guide on matters, as his Honour Justice Kirby said inBrodie v Singleton at page 594,paragraph 211. After itemising many considerations that can be taken into account before a rule of commonlaw is to be changed, his Honour said that:

whilst the legislature has the primary role, and responsibility, in reforming the common law (andis nowadays assisted by law reform and like bodies) that fact does not relieve this Court of itsown responsibilities to repair clearly demonstrated defects of judge-made law.

So that even though Parliament may have expressed a view, we say that for very good reasons the immunityshould go - ought to be narrowed, and this Court has the unique - - -

GLEESON CJ:Narrowed to what?

MR MOSHINSKY:Narrowed to in-court immunity only and I want to spend some time on that issue and Ialso remind the Court of what was said by Justices Gaudron, McHugh and Gummow in Brodies Case at

pages 560 to 561 where, at page 560, their Honours stated:

Where, as we have endeavoured to show is the position in Australia with the highway rule, thecase law speaks in terms can no longer command an intellectual assent, should this Courtacquiesce and refuse to act by reference directly to basal principle? If the continuation of thatstate of affairs, which discredits the Australian legal system, be mandated by precedent, then it isthe task of this Court to look into the authorities said to constitute that precedent.

Then at page 561:

While stare decisis is a sound policy because it promotes predictability of judicial decision andfacilitates the giving of advice, it should not always trump the need for desirable change in the


20/57

law. In developing the common law, judges must necessarily look to the present and to the futureas well as to the past.

These words we say echo what was said by Lord Reid inRondel v Worsley where he said public policy is notimmutable. I would like to now turn to the elements of public policy more precisely, although I havementioned my views in the course of discussion.

KIRBY J: Could I just ask before you do that, my dim recollection fromBoland v Yates was that the LawReform Commission in Victoria made a point concerning some interregnum where there was no immunity.Could you just remind me of what that point is?

MR MOSHINSKY: Yes. I was going to refer to that, but if I could turn precisely to that.

KIRBY J: Their point, as I recollect it, was that the floodgates did not open during that interregnum and thatthat rather answered the fears that were expressed by the legal profession.

MR MOSHINSKY: Yes, you will find that report in tab 17 of the extrinsic material that has been prepared.

KIRBY J: We can look at it later. Just remind me what the point is.

MR MOSHINSKY: The point was that afterGiannarelli was decided by Mr Justice Marks and until the

period when it came to the High Court some two years or more, about two years expired, and they studiedcriminal trials in Victoria during that period that is, the length of criminal trials and they studied thelength of criminal trials afterGiannarelli was decided and they found there was basically no difference. Thetheory was that after immunity was not accepted at first instance, barristers may have started to become more

prolix or trials become more longwinded and that the position would have changed after immunity wasreaffirmed, but there was absolutely no difference in the length of trials. That is a small amount of evidence,

but indicative, if anything, of the absence of any cogent empirical evidence supporting the fundamentalpolicy ground, which is the conflict of duties ground.

McHUGH J: Yes, but as opposed to that, Mr Moshinsky, I suspect that at the same time in Victoria accusedpersons were not seeking new trials on the ground of their counsels errors. But at one stage in New South

Wales some years later, and maybe the case even today, such cases are commonly brought in which accusedseek to set aside their convictions on the basis that their counsel erred. In fact, I let you know that I haveasked my associate to get out all those cases so that I can have a look at them. If you succeed in the grant ofleave and in the appeal, then those cases may suggest that there would be a lot of actions.

MR MOSHINSKY: Yes, but that is a retrospectivity point, which I believe I have stated my response to,which is that Parliament - - -

McHUGH J: No, it is not a retrospectivity action so much as that these cases may become very common.You are relying on the report at tab 17 for saying, in the two years between Justice Marks decision and thisCourts decision in Giannarelli, there was not much litigation about this aspect.

MR MOSHINSKY:No, it was not the point that I was making, with respect, your Honour.

McHUGH J: I am sorry, I misunderstood.

MR MOSHINSKY: The point I was making was that one of the grounds that is relied on to support theconflict of duties policy ground is that, absent the immunity, trials will become more prolix because

barristers would become more sensitive to the demands of their clients. This research suggests the contrary,that prolixity is not a feature of the absence of the immunity. That is all the point is.

HAYNE J: There is a reference at page 47 of that report, paragraph 9 and footnote 12, which is not areference to the interregnum in the path ofGiannarelli up the appellate chain. It is rather a reference to thedecision inRe Knowles. If there is some other reference other than this to which we should go, could youlater let me have it?

MR MOSHINSKY: Yes, certainly. If I could then deal with the policy grounds separately. The main one,we say and that was accepted by his Honour Chief Justice Mason in Giannarelli was the conflict ofduties ground, namely, that the administration of justice requires an advocate should be able to carry out histask fearlessly and independently, also as an officer of the court he has an overriding duty to the court in the


21/57

standards of his profession. The performance of his duty could be prejudiced if he is vexed by the threat of alaw suit.

In relation to that ground, what we say is, first of all, the example of a doctor who is liable with anoverriding duty. Lords Steyn and Hoffmann regarded that as a significant factor. Secondly, we say the Bar isa sufficiently competitive to prevent time wasting, that barristers want to do well, they are competing forwork and they do not want to be known as barristers who drag cases out. The third point we would say isthat there is no empirical evidence that fear of litigation will lead to adverse consequences, and we rely again

to the passage at paragraph 78 in the Law Reform report at page 35. The evidence seems to point to thecontrary.

The fact that barristers work under pressure is not unusual for professionals. Doctors and other professionalsalso work under pressure but they have no immunity. Also we say that if an advocate disagrees with hisclient by adhering to professional rules, that will not be negligent, that will be quite the opposite: he will be

performing his duty. So that the fear of litigation has to be looked at in the proper context that the chances ofsuccess in being sued in negligence are not great if a barrister does his duty.

CALLINAN J: I do not know, Mr Moshinsky. If you look at that case ofYates v Boland, for example, itwas only in this Court that it was decided that a number of the judges had got it wrong, that the Court ofAppeal had got it wrong and, indeed, that the Full Federal Court had got it wrong, that is, with respect to

what the law was. In fact, the barristers had advised correctly and I think six judges, six appellate judges, hadtaken the view that the barrister had advised the barristers had advised wrongly.

What if the barristers in that case, or the solicitors in that case, or their insurers perhaps, had not had themeans or the endurance to bring the case to this Court? What I am really saying is that legal questions andlegal outcomes are very vexed. They are very unpredictable. This Court is frequently divided 4:3. Take

Lange. Is every barrister who never advised with respect to the freedom of political communication defencebeforeLange negligent?

MR MOSHINSKY: Not at all, because mere differences of opinion do not amount to negligence. What wesay is that, of course, it is difficult to prove negligence. That is one reason why the fears that underpin these

policy grounds are grossly exaggerated. It is not likely that parties will succeed against a barrister in except

the clearest case such as the present, as we say.

KIRBY J: Could I just get clear into my mind what you would be saying in the trial, if you got to trial, wasthe negligence. Was it first telling the accused You have no defence, and you would argue that meant nodefence in law, and, second, warning him that if he pleads guilty and subsequently wishes to withdraw, thefact of pleading guilty will be open to be proved before the jury to his disadvantage in the trial? Are they theessence of the complaint?

MR MOSHINSKY: Also, we add the fact that there was a prediction made that if he pleaded guilty hewould get a suspended sentence. That, rolled up with the - - -

KIRBY J: How would a barrister know that, where there is no private communication with the judge - - -

MR MOSHINSKY: That is part of our allegations on page 7 of the - - -

KIRBY J: Anyway, you say that in a charge of rape of the kind that was before the court, no sensiblebarrister would have given advice that he was likely to get a suspended sentence in this day and age.

MR MOSHINSKY: Absolutely. That is so, yes.

KIRBY J: It did seem very strange to me that he was told he would get a suspended sentence.

MR MOSHINSKY: That is the evidence, and it certainly was before Judge Duckett. That is part of ourcase.

KIRBY J: So they are the three elements that you would be seeking to run at trial, if only you can get totrial?

MR MOSHINSKY: That is so, yes. Dealing then I am continuing with the conflict of duties point Imove to the next reason why we say that is not a very good policy reason, or a good policy reason at all, andthat is that in the case of discovery solicitors have been subject to rules of conduct which may haveconflicted with clients expectations, but that has not led to an abuse of litigation procedures. There must be


22/57

many cases where a solicitor tells a client, We have to discover this particular document, but the clientsays, But if they know that weve got it, this will not help our case, but the solicitors duty is to discovermaterial documents.

This procedure has been going on for a very long time. Solicitors are liable in negligence in the way theyconduct their preparation for trial; they do not have immunity. Nevertheless, there is no suggestion in thecases that somehow this procedure is being abused. So if solicitors can handle the strain of possible litigationin those situations, what is it, we say, about advocates which makes it so much more different? It can only

be, we say - - -KIRBY J: Maybe they are more highly strung.

MR MOSHINSKY: They may be more highly strung. They seem to be, in the words of their Lordships,easily vexed and therefore - - -

HAYNE J: That is just a straw dummy, is it not, Mr Moshinsky?

MR MOSHINSKY: Beg your pardon, your Honour?

HAYNE J: It is just a straw dummy that you have set up and knocked down. There are either questions ofprinciple which support it or there are not.

MR MOSHINSKY: Yes.HAYNE J: The principle is not to be supported by the notions you have just dealt with.

MR MOSHINSKY: May I continue with some other issues. Lord Hoffmann considered that most advocatesare honest and conscientious persons who wish to enjoy a good reputation amongst their peers in the

judiciary. It is just wrong to assume that it is more likely than not that there would be abuses of the courtprocess if they are subject to legal action. In the United Kingdom, barristers are subject to wasted costsorders. In Australia, they can be liable for costs personally, and there are also disciplinary powers that can beexercised. We say that that in itself will provide a break against abuse of process by reason of a possiblethreat of litigation.

Also, there exists throughout the whole of Australia and the Australian Capital Territory procedures which

enable vexatious claims to be struck out, so that if a client seeks to make a case against a barrister withoutany foundation, those procedures can be screened and struck out by court process. That itself will provide a

break against the pressure on advocates in court. Finally, we say there is no evidence from theUnited Kingdom, sinceHalls Case, of problems with the administration of justice in the courts due to theabolition of the rule. So that particular ground, we say, has been validly and properly dealt with in substance

by their Lordships because they formed the view that that is not a very good reason by itself, and not a goodpolicy reason, to justify the immunity.

KIRBY J: Have there been any empirical studies? Is there any writing up of the consequence?

MR MOSHINSKY: I have no evidence of that.

KIRBY J: Well how do we know? It is just guesswork.MR MOSHINSKY: I cannot take - - -

KIRBY J: Has there not been any analysis of postHallin the United Kingdom? One would have thoughtthere would be some writing on this.

MR MOSHINSKY: No, I have not been able to find any such analysis.

KIRBY J: Well, I will look.

MR MOSHINSKY: Yes. The cab rank principle is also relied on by our learned friends, and also hasbeen referred to inRondel v Worsley. We say that cannot, by itself, provide a valid basis for upholding thisimmunity.

GLEESON CJ: Does that rule apply in Victoria?

MR MOSHINSKY: It does apply in Victoria, but we say, in practice it has been modified - in practice, thatbarristers often specialise in practice, and they are permitted to decline briefs which do not fall within theirspecialty. Also, barristers are entitled, within limits, to raise their fees, and in a way that will cause a party to


23/57

go away, or they can require payment in advance.

KIRBY J: Do you have reference to these rules of the Bar in Victoria in your written submissions, or canyou give us access to these, because I do not know?

MR MOSHINSKY: We will provide you with access, but I believe they are in the respondents material.

HAYNE J: I am not sure that you altogether accurately state the cab rank rule as it is reflected in thoserules, or at least as I have understood it. In particular, the notion that counsel can raise a fee above the fee

ordinarily charged in order to deter work is, I would have thought, fundamentally antithetical to the cabrank principle.

MR MOSHINSKY: Yes. I said within limits, your Honour. I do not say - - -

HAYNE J: Yes, the limit being that they must accept a brief at a fee that is proper.

MR MOSHINSKY: Yes. Well, we say that, in fact, the cab rank principle plays a much lesser role ofimportance than has been placed on it by our learned friends, and in any event, it has not been a groundwhich is relied on very strongly in support of this immunity. In Giannarelli, only Justice Brennan regardedthat as a valid basis for supporting the rule. We say that that principle cannot, or should not, be relied on to

justify immunity per se because it protects, essentially, the profession rather than the public. It is not aprinciple or a ground which relates to the actual performance in court of a barrister.

Finally, I will just repeat about the question of collateral attack. We say it just does not apply in this case, butyou can rely onHunters Case, an abuse of process, to control the collateral attack issue. What we say isthat, whenever a party seeks to sue an advocate, but in the process seeks to challenge a previous decision,that could be regarded as an abuse of process, as an improper purpose, because if the collateral attack groundis regarded as a valid support of the principle, it could be met by the abuse of process procedures available.

GLEESON CJ: Discussions of this problem usually seem to address it in terms of a challenge, or a possiblechallenge, made by a plaintiff to a judicial decision. What about the possibility of challenges that a defendantmight want to make to a judicial decision? Is that something that needs to be considered?

MR MOSHINSKY: Well, we say the principle would still be the same. The question would be whether

there is an improper purpose in the challenge, and if the challenge is of an existing decision, it would be animproper purpose. If the decision is quashed and does not exist, there is no challenge to an existing decision.Could I move on to the next point, which is the point - - -

KIRBY J: Are you going to say something about the criminal trial exception? Because the reason thatseems to be behind recognising that exception is that, because of our principles of criminal procedure, peopleare acquitted even though they might sometimes be guilty objectively, because we are very defensive ofliberty and protective of the posi

[Home] [Databases] [WorldLII] [Search] [Feedback]

Documents

Transcript of [Home] [Databases] [WorldLII] [Search] [Feedback]