Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Bott v Carter [2012] NSWCA 89
• Hearing dates: 16 February 2012
• Decision date: 17 April 2012
• Before: McColl JA at 1; Basten JA at 2; Whealy JA at 47

Decision

(1) Direct that the amended statement of claim prepared for the hearing of the appeal should be marked for identification "A" and placed on the Court file.

(2) Dismiss the appeal from the judgment of Hislop J in the Common Law Division delivered on 2 April 2009.

(3) Order the applicant to pay the respondents' costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: LAWYERS - negligence - advocates' immunity - allegations of negligent conduct of District Court proceedings - loss of compensation and opportunities - basis for immunity in finality of judicial determination - discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 - whether loss of opportunity to respond to the possibility of an offer of settlement falls outside the scope of the immunity; PROCEDURE - civil - pleadings - application to dismiss the proceedings generally - whether no reasonable cause of action is disclosed - whether there is a real question to be tried - interaction of requirement that court facilitate the just, quick and cheap resolution of the real issues with the approach in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125 - whether requirement limits the circumstances in which the court might be inclined to refuse relief on discretionary grounds - Civil Procedure Act 2005 (NSW), s 56; Uniform Civil Procedure Rules 2005 (NSW), r 13.4
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 56; Migration Act 1958 (Cth) s 420; Uniform Civil Procedure Rules 2005 (NSW), r 13.4
• Cases Cited: Arthur J S Hall & Co v Simons [2002] 1 AC 615; Attard v James Legal Pty Ltd [2010] NSWCA 311; Berry v British Transport Commission [1962] 1 QB 306; Bott v Carter [2010] NSWCA 21; Bott v Suttons Motors Australia Pty Ltd [2007] HCA Trans 576; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1; General Steel: Commonwealth v Griffiths [2007] NSWCA 370; Giannarelli v Wraith [1988] HCA 52; 165 CLR 543; Gray v Sirtex Medical Limited [2011] FCAFC 40; 193 FCR 1; Lai v Chamberlains [2003] 2 NZLR 374; Lai v Chamberlains [2006] NZSC 70; [2007] 2 NZLR 7; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (FCA, 6 May 1997, unrep); Weiss v The Queen [2005] HCA 81; 224 CLR 300
• Category: Principal judgment
• Parties: David Charles Bott - Appellant; Trevor John Carter - First Respondent; Clive Andreas Evatt - Second Respondent
• Representation: Counsel: P King - Appellant; R Darke SC/M Dicker - First Respondent; R Williams/D Barnett - Second Respondent; Solicitors: McKell's Solicitors - Appellant; Yeldham Price O'Brien Lusk - First Respondent; Lee & Lyons - Second Respondent
• File Number(s): CA 2009/298512

Decision under appeal

• Jurisdiction: 9111
• Citation: Bott v Carter [2009] NSWSC 236
• Date of Decision: 2009-04-02 00:00:00
• Before: Hislop J
• File Number(s): SC 2007/265044

HEADNOTE

[This headnote is not to be read as part of the judgment]

In earlier proceedings the appellant claimed that he was injured in the course of his employment. He was unsuccessful in those proceedings in the District Court against his former employer, judgment being given for the employer on 22 September 2004. A notice of appeal was filed in this Court but was struck out. The appellant's application for special leave to appeal from that decision to the High Court was dismissed on 4 October 2007.

On 6 July 2007 the appellant commenced proceedings in the Common Law Division of the Supreme Court against his solicitor and barrister in the District Court proceedings, alleging negligence in their conduct of his claim against his former employer. On 2 April 2009, Hislop J ordered that the appellant's fourth amended statement of claim be struck out and that the proceedings be dismissed generally.

The appellant appealed to this Court from the decision of Hislop J, pursuant to a grant of leave restricted to the question of the exercise of the power of Hislop J to dismiss the proceedings generally. The appellant produced a reformulated pleading for consideration by this Court.

The issue for determination on appeal was whether any of the allegations, if proved, would be capable of supporting a relevant cause of action.

The Court held (per Basten JA, McColl and Whealy JJA agreeing), dismissing the appeal:

1. A statutory provision requiring a court to facilitate the just, quick and cheap resolution of the real issues imposes substantial obligations on parties and lawyers as well as the courts; it is not merely exhortatory: [14]

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (FCA, 6 May 1997, unrep) referred to; Minister for Immigation and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 applied.

2. Civil Procedure Act 2005 (NSW), s 56, might not reduce the conditions for the engagement of the power to dismiss proceedings generally under Uniform Civil Procedure Rules 2005 (NSW), r 13.4, but limits the circumstances in which the court, satisfied that the power is available, might be inclined to refuse relief on discretionary grounds: [14]

Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 258 referred to.

3. The justification for the doctrine of the advocate's immunity is now soundly rooted in the principle of finality of judicial determination, subject only to constitutional requirements found in the supervisory jurisdiction of the High Court and State Supreme Courts and statutory provisions for appellate review. The scope of the immunity is to be determined by the tendency of the claim to result in re-litigation of a controversy which has been quelled. The appellant cannot challenge the finding that he was not entitled to damages from his employer in relation to the claim of workplace injuries: [23]-[24]

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied.

4. The claim for loss of an opportunity to respond to the possibility of an offer of settlement might, on its face, fall outside the scope of the immunity. However, the appellant's reformulated pleading was deficient: [37]-[42].

Judgment

1 McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes.

2 BASTEN JA: The appellant, Mr David Charles Bott, claims that he was injured on two occasions in the course of his employment, on 16 June and 11 July 2000. On 27 November 2001 he commenced proceedings in the District Court against his former employer, Suttons Motors Australia Pty Ltd. Those proceedings were heard by Rein DCJ in May and June 2004, judgment being delivered on 22 September 2004. Judgment was given for the defendant and the plaintiff (Mr Bott) was ordered to pay the defendant's costs of the proceedings in the District Court.

3 A notice of appeal was filed in this Court but was struck out. The appellant sought special leave to appeal to the High Court, that application being dismissed on 4 October 2007: Bott v Suttons Motors Australia Pty Ltd [2007] HCA Trans 576 (Kirby and Heydon JJ). There was no further appeal or application for leave to appeal.

4 On 6 July 2007 the appellant commenced proceedings in the Common Law Division seeking to recover damages said to have been incurred as a result of the negligence of the solicitor appearing for him in the District Court, Mr Trevor John Carter, and of counsel briefed on his behalf, Mr Clive Andreas Evatt. The present appeal is concerned with these proceedings.

5 The appellant had a number of opportunities to formulate a statement of claim which could form the proper basis of the proceedings he sought to maintain. The defendants invited the Court to strike out the pleadings and dismiss the proceedings brought against them. On 2 April 2009, Hislop J ordered that a document identified as the fourth amended statement of claim be struck out and that the proceedings against each defendant be dismissed generally: Bott v Carter [2009] NSWSC 236.

6 The appellant sought leave to appeal the judgment and orders of Hislop J. On 24 February 2010 leave was granted, restricted to "the question of the exercise of the power by Hislop J to dismiss the proceedings generally": Bott v Carter [2010] NSWCA 21 (Allsop P and Tobias JA), order (1). Leave to appeal was otherwise refused: order (3). Because the challenge to the struck out pleading was not the subject of the grant of leave, the desirability of the appellant reformulating a pleading in terms which might permit a better understanding of the matters of fact said to support any relevant cause of action was noted in the course of the leave hearing. Although no direction was given, the Court clearly anticipated that the appellant might wish to prepare such a document, which could be the subject of consideration on the appeal. That course was taken; the final form of the document should be marked for identification "A" and placed with the papers on the Court file.

7 The issue to be determined on the appeal is whether the proceedings could not be maintained because each of the respondents, being sued in respect of their conduct in relation to the trial in the District Court, was immune from liability.

8 With one potential qualification, the immunity is sufficiently wide to cover all of the conduct alleged against the respondents. The qualification relates to a complaint in relation to a possible settlement of the proceedings. However, the proposed pleading in that regard is manifestly deficient. Accordingly, the appeal must be dismissed. Because the appeal must be dismissed, the proceedings will stand generally dismissed and there will be no occasion for the document, MFI A, to be filed.

Approach to summary dismissal

9 There was some discussion during the hearing of the appeal as to the scope of the grant of leave. That arose because the primary judge appeared to have taken into account, in dismissing the proceedings, not merely the effect of the immunity from liability conferred by law on those representing the appellant, but also because he determined that the appellant had had sufficient opportunity to formulate a proper pleading and should not have any further indulgence. If one took the latter consideration out of the equation, it was contended that the primary judge had not determined that the impugned conduct necessarily fell entirely within the scope of the immunity.

10 That underlying assessment of the reasons of the primary judge may be accepted: see judgment at [59]. However, the purpose of permitting the appellant to put a reformulated pleading before this Court was not to reopen any question as to the adequacy of the earlier pleadings, but merely to allow this Court to be better informed as to the scope of the impugned conduct. It may further be accepted that if the Court were satisfied that any part of the impugned conduct fell outside the scope of the immunity and raised a cause of action with reasonable prospects of success, the appeal would be allowed and the appellant would be allowed to file a further pleading. However, it is not for this Court to speculate as to the mere possibility of a claim falling outside the area of the immunity; the case is to be decided on the basis of the specific material before the Court.

11 The issue in dispute was, therefore, the scope of the immunity. Because the immunity does not extend to all activities undertaken by legal practitioners, even in relation to disputes which may give rise to litigation, it is necessary to understand the boundaries of the conduct complained of. Those boundaries are not to be determined as matters of fact, but by reference to the latest draft of a proposed statement of claim. Indeed, it should be emphasised that the assessment to be undertaken is based entirely upon the allegations contained in that document, none of which have been admitted and none of which have been found to have any factual foundation. They are to be understood, so far as they are referred to in these reasons, purely as allegations. The question to be determined by the Court is purely one of law, namely whether any of the allegations, if proved, would be capable of supporting a relevant cause of action.

12 The primary judge outlined the principles to be applied in relation to a motion to dismiss or strike out proceedings at [14]-[20]. The order now under challenge, that the proceedings be dismissed generally, is provided for in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 13.4(1)(b). Such a course is available if "no reasonable cause of action is disclosed".

13 According to established principle, proceedings should not be dismissed generally if there is "a real question to be tried". As has been explained by the High Court, "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). However, as that case itself demonstrated, where upon full legal argument it is established that there was no legally tenable cause of action, summary dismissal is an appropriate course.

14 A question has been raised as to whether that approach is affected by s 56 of the Civil Procedure Act 2005 (NSW) requiring a court, in exercising a discretionary power, to facilitate the "just, quick and cheap resolution of the real issues in the dispute or proceedings": s 56(1) and (2). Clearly the provision imposes substantial obligations on parties and lawyers as well as the courts; it is not merely exhortatory: compare Migration Act 1958 (Cth) s 420, discussed by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (FCA, 6 May 1997, unrep) approved by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [106]-[109]. It has been suggested that s 56 might warrant courts striking out proceedings on "less substantial grounds" than those stated in General Steel: Commonwealth v Griffiths [2007] NSWCA 370, at [155] (Young CJ in Eq). In the present case, the primary judge referred to this possibility, but did not rely upon it. Another view might be that s 56 does not reduce the conditions for the engagement of the power conferred by r 13.4, but limits the circumstances in which the court, satisfied that the power is available, might be inclined to refuse relief on discretionary grounds.

15 The parties addressed the appeal on the basis that there was, in effect, a single question for the Court to determine, namely whether the proposed pleading was capable of supporting a cause of action in negligence against the practitioners. No factual or discretionary issue was said to arise.

Scope of pleading

16 In the proposed revised statement of claim, the solicitor was identified as the first defendant and the barrister as the second defendant. The pleading commenced by alleging that the appellant (identified as the plaintiff) was injured in two incidents in the course of his employment, particularised as follows:

"(a) On 16 June 2000 the Plaintiff slipped on debris he had previously been asked to clean up, injuring his lower back and right wrist.

(b) On 11 July 2000 the Plaintiff, whilst avoiding workmates blocking his path, struck his head on a metal pipe, knocking himself unconscious, causing severe concussion, a sudden onset of left temporal lobe epilepsy and neck injuries."

Those were the bases of the claim litigated in the District Court.

17 In relation to the solicitor, the pleading alleged two retainers, the first being accepted in November 2000 and continuing until it was terminated by the appellant in September 2002. During that period proceedings were commenced in the District Court against the appellant's former employer. It was alleged that, in about February 2002, the employer's insurer was "prepared to make an offer of settlement", although apparently only if the appellant's solicitor contacted him or the solicitors acting for the employer: par 15. Over a period of 14 weeks, the appellant alleged that he left messages for his solicitor, but his calls were not returned: par 16. The content of the messages was not identified, although it might be inferred that they requested the solicitor to contact the employer's solicitor with a view to seeing if an offer were to be made. (Why such a step would be necessary if the insurer did intend to make an offer is obscure.) The appellant was then allegedly advised to contact the employer's solicitors himself, which, it appears, he did (although that is not expressly stated) at which time "the offer had been withdrawn": par 19. These allegations resulted in a particular of negligence identified as "[f]ailing to engage in settlement discussions": par 35(d) and (e). There was no particular of loss or damage identified in respect of this element of negligence (see par 36), but in setting out the circumstances of breach, the pleading stated that the failure to contact the insurer resulted in the appellant losing "the opportunity to resolve the matter extra-judicially": par 19.

18 A second retainer is alleged to have arisen in early May 2004, shortly prior to the hearing of the claim in the District Court, which commenced on 31 May 2004. That retainer was said to have been terminated on 22 September 2004, which was the date of judgment. The breaches of duty in respect of the second retainer included failure to contact potential witnesses and failure to arrange for witnesses to attend court at appropriate times and to co-ordinate their attendance. In addition to not contacting eye-witnesses to the accidents, it was said that the solicitor failed to advise the appellant as to the need for appropriate medical evidence. There were also claims of breach in respect of the preparation of the statement of claim and advice given generally in respect of the claim. Although there was no pleading as to the underlying circumstances, one particular alleged (par 34(c)):

"Failing to instruct the plaintiff to cease his lawful protest outside the offices of the insurer and employer, and the risk that such protests could be seen by the court as possible extortion or inappropriate conduct in relation to his claim, as occurred."

19 In respect of the claim against the barrister, the appellant alleged that a conference had been arranged by the solicitor in July 2002, in the course of which the barrister agreed to accept the brief "to advise and appear and conduct the matter": par 42. That retainer was said to have continued "up to October 2003", despite the fact that the hearing had not then occurred. The circumstances of its termination were not identified. On 24 April 2004, a second retainer was accepted from the appellant directly, there being no solicitor then acting for him. It was alleged that the retainer was initially to advise and conduct the matter in the Supreme Court, in the absence of consent by the defendant to unlimited jurisdiction in the District Court. The defendant's position apparently changed on 28 May 2004 and the plan to transfer the matter to the Supreme Court was abandoned.

20 Almost all of the particulars of negligence alleged against the barrister were concerned with the preparation of the case for trial (which was alleged to be inadequate), advice given to the appellant in respect of steps preliminary to the trial and the conduct of the case in court. The allegations included a failure to remain awake during witness testimony and that the barrister "was not during the hearing in a state capable of making any decisions": par 70(a). It was also alleged that the barrister made misrepresentations in respect of the solicitor, recommending him as "a competent and good solicitor, and who knew the case of the plaintiff", whereas the solicitor was "incompetent and did not know the plaintiff's case and instead took no interest in the case": par 72(a). The appellant also alleged breach of an undertaking by the barrister to ensure by taking all reasonable and appropriate steps that the solicitor would be present on each day of proceedings. The loss and damage suffered as a result of the breaches of duty by the barrister included the following:

"(a) The lost opportunity or spes to recover an order for damages against Sutton Motors (including an order for statutory interest on damages) and/or the loss of a valuable property right namely his chose in action against his former employer.

...

(c) Depression, feelings of anxiety and helplessness caused by the conduct of his legal representatives complained of herein.

(d) Lost opportunity to recover from injuries suffered, the subject of those proceedings, through continued physiotherapy and rehabilitation following a proper resolution of his claim."

Applicable legal principles

21 Much attention has been paid over the years to the scope of the advocate's immunity, commencing in modern times with Rondel v Worsley [1969] 1 AC 191. It has routinely been held to extend to pre-trial work not occurring in the course of a hearing, but which is described as "intimately connected" with the conduct of the hearing: Rees v Sinclair [1974] 1 NZLR 180 at 187 (McCarthy P). It did not apply to a failure to take steps to commence litigation against a putative tortfeasor within the limitation period: Saif Ali v Sydney Mitchell & Co [1980] AC 198. these decisions were followed in Australia: Giannarelli v Wraith [1988] HCA 52; 165 CLR 543.

22 However, there was over the years on-going debate as to the true foundation of the rule and criticism of the imprecision, in relation to work done out of court, of the language of 'intimate connection' or, as expressed by Mason CJ in Giannarelli at 560, "work done out of court which leads to a decision affecting the conduct of the case in court": see Attard v James Legal Pty Ltd [2010] NSWCA 311 at [5]-[8] (Giles JA). These issues were reviewed by the House of Lords in Arthur J S Hall & Co v Simons [2002] 1 AC 615, the separate advocate's immunity being abandoned in favour of reliance on principles of abuse of process which were held to underlie the legitimate operation of the immunity. That course has been followed in New Zealand: Lai v Chamberlains [2006] NZSC 70; [2007] 2 NZLR 7.

23 A similar reconsideration of basic principle has been undertaken in Australia, but with the result that the doctrine of the advocate's immunity has been retained: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1. However, the justification is now soundly rooted in a principled approach to the fundamental need in the administration of justice for finality of judicial determination, subject only to constitutional requirements found in the entrenched supervisory jurisdiction of the High Court and State Supreme Courts and statutory provisions for appellate or other forms of review. Those roots (which also form the basis of at least one aspect of abuse of process) will inform the scope of the rule, in particular in relation to pre-trial activities and omissions. The scope of the immunity is no longer to be determined by differences in language but by the tendency of the claim to result in re-litigation of a controversy which has been quelled.

24 Thus, that which the appellant cannot challenge is the finding that he was not entitled to damages from his employer in relation to the claim of workplace injuries identified above. As explained in D'Orta-Ekenaike at [43], by Gleeson CJ and Gummow, Hayne and Heydon JJ:

"Once a controversy has been quelled, it is not to be re-litigated. Yet re-litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client."

25 The concept last referred to, namely "damage to the client", is not limited to a failure to obtain a judgment for compensation in favour of the client. That is illustrated by the facts of D'Orta-Ekenaike itself. Mr D'Orta-Ekenaike had been charged with rape and, on advice from his lawyers, had entered a plea of guilty at a committal hearing: at [4] and [5]. He was committed for trial, and, on arraignment, entered a plea of not guilty. However, his earlier plea was led in evidence and he was convicted and sentenced to imprisonment: at [6]. The conviction was set aside, not on the basis that the plea should not have been led in evidence, but that the trial judge had failed to give appropriate directions about the use that might be made of the plea: at [7]. On retrial, he was acquitted: at [8]. In civil proceedings brought against the lawyers acting for him at the time he entered the plea of guilty, he claimed damages for "loss of liberty during the period of his imprisonment between conviction at his first trial and subsequent quashing of that conviction, loss of income during that period and beyond (because of his psychological condition), psychotic illness, and the costs and expenses of the appeal, the retrial and the civil proceeding": at [11].

26 Because the appellant in the present case made no claim for recovery of amounts expended by way of legal costs, it is not necessary to consider the circumstances in which D'Orta-Ekenaike will preclude such costs being recovered from a third party as damages, in accordance with the principles referred to by Devlin LJ in Berry v British Transport Commission [1962] 1 QB 306 at 321, applied by the Full Court of the Federal Court in Gray v Sirtex Medical Ltd [2011] FCAFC 40; 193 FCR 1 at [16]-[24] (Bennett, Gilmour and Gordon JJ).

27 Having been acquitted, Mr D'Orta-Ekenaike was not challenging any final result in the proceedings, but his claim for damages did involve the contention that, but for the negligent advice to plead, he would not have been convicted at the first trial. This was described in the reasoning in the High Court as a challenge to an "intermediate outcome": at [75].

28 In considering whether such a claim might fall outside the scope of the immunity, the plurality accepted that incompetence of counsel might provide a basis for setting aside a judgment and orders at trial if it had created a miscarriage of justice: at [82]. (Although the reasoning dealt with a criminal trial, the same result may follow in respect of a civil matter.) The reason for not carving out an exception to the area of the immunity in such a case was that "[i]n general ... if an intermediate result is set aside, it will be for reasons unconnected or, at best, only indirectly connected, with the client's contention that the advocate was negligent": at [82]. Nor was it thought appropriate to permit exceptional cases, in which an appeal might have depended entirely upon the negligence of the advocate. Even if the intermediate result had been set aside on appeal, a civil claim in negligence would still require a reconsideration of the reasons for setting the first judgment aside and the extent to which the negligence of the advocate may have caused the first adverse judgment. This would involve not only re-litigation "of a skewed and limited kind", as explained at [45], but, in effect, an inquiry into the decision-making process at the first trial.

29 Such inquiries may, of course, have to be made in the course of appellate decision-making: for example, an appellate court may have to determine, as best it can, whether wrongly excluded or wrongly admitted evidence would have materially affected the outcome of a trial: see, eg, Weiss v The Queen [2005] HCA 81; 224 CLR 300. However, the appellate process is, as the Court noted in D'Orta-Ekenaike, an established exception to the principle of finality in respect of judgments at trial. The fact that such inquiries may be undertaken in the course of an appeal does not require their adoption in collateral challenges to a trial judgment.

30 The High Court also rejected the contention that a claim for wasted costs should fall outside the immunity, "lest a dispute about wasted costs become the vehicle for a dispute about the outcome of litigation in which it is said that the costs were wasted": at [83]. In criminal proceedings there was no entitlement to recover costs from the other party, the wastage of costs being, accordingly, purely a matter between the client and the advocate. Nevertheless, in order to demonstrate a causal link between the negligence and the incurring of costs, the client might need to demonstrate how the impugned conduct or omission would have affected the outcome at the trial.

31 Although the High Court in D'Orta-Ekenaike retained the concept of "advocate's immunity" the fact that it was squarely founded upon principles relating to the administration of justice and the role of litigation within the constitutional structure of government, would have permitted a different label to be adopted. It will remain to be seen how far, in practice, the approach adopted in Australia will differ from that in England and Wales and in New Zealand. As explained by Tipping J in Lai, members of the House or Lords in Arthur J S Hall variously described the willingness of the law to tolerate civil proceedings impugning the result of a criminal trial. Tipping J himself accepted that "a civil challenge to a subsisting conviction is the paradigm of an abuse of process" (referring to the judgment of Lord Steyn in Arthur J S Hall) while expressing doubt as to how there could be circumstances in which "the epitome of abuse" could ever not be an abuse. In principle, there is a degree of flexibility in the approach adopted in England and New Zealand, which is rejected by D'Orta-Ekenaike.

32 It is likely that different results will follow from the differing approaches. Although in Lai v Chamberlains the underlying circumstance did not receive close attention in the Supreme Court, it is clear that they would have been covered by the immunity in this country. Mr and Mrs Lai, together with a company in which they were interested, were defendants in proceedings in the New Zealand High Court. At the conclusion of the hearing, a question arose as to whether the Lais would consent to a judgment against them personally, in the event that the Court found against their company. Through their solicitor, Mr and Mrs Lai advised the Court that they would personally guarantee payment of any judgment against the company: Lai v Chamberlains [2003] 2 NZLR 374 at [4] (Salmon J). In the result, judgment was entered against the company and against Mr and Mrs Lai personally. The claim brought by them against their solicitors, on the basis of negligent advice, sought to recover the loss resulting from the judgment wrongly entered against them. Their claim succeeded.

33 None of these matters need be explored further, the only question arising in the present case being the extent to which the appellant can identify issues which do not involve reagitation of the District Court trial and judgment. There was no intermediate outcome, set aside on appeal. Nor is it necessary to explore the extent to which the present claims could have been agitated on appeal.

Application of principles

34 It is convenient to address first the losses sought to be recovered from the barrister. The first element of loss is the compensation which might have been obtained from the employer in the District Court proceedings, if properly prosecuted: par 75(a). Such a claim seeks to impugn the correctness of the judgment that the employer was not liable to the appellant for any amount of compensation. That conclusion is not avoided by claiming that what was lost was the "opportunity or spes [hope] to recover an order for damages": par 75(a). Such a claim is misconceived, there being no extant chose in action, unless the judgment rejecting the claims against the employer is set aside. The claim is also futile, absent quantification of the loss in fact suffered. Since the loss has been valued at nil, this claim is valueless to the appellant unless he can challenge the correctness of the District Court judgment, which is precisely what D'Orta-Ekenaike says he cannot do.

35 A second loss (asserted only against the barrister) was the lost opportunity to correct the judgment of the District Court under the slip rule, as requested by the defendant's lawyers: par 75(b). No aspect of the pleading related to this point and it does not obviously identify any relevant form of loss.

36 The third loss was a claim for compensation for "depression, feelings of anxiety and helplessness" caused by the conduct of his lawyers: par 75(c). He also sought damages for the loss of an opportunity "to recover from injuries suffered ... through continued physiotherapy and rehabilitation following a proper resolution of his claim": par 75(d). Apart from the fact that these claims did not, by contrast with the similar claims in D'Orta-Ekenaike, rise to the level of psychiatric illness, they cannot be maintained in conformity with the judgment of the High Court in that case.

37 To the extent that similar claims were made in respect of loss and damage suffered through the conduct of the solicitor, they too fall squarely within the scope of the immunity: see par 36. The only claim which might, on its face, fall outside the scope of the immunity is the complaint that the solicitor failed to respond to the possibility of an offer of settlement, which involves no challenge directly, or indirectly, to the judgment in the District Court. Four points should be made in respect of this allegation. First, as an allegation of negligence, the pleading is incoherent. Although it asserted that an offer had been withdrawn, it did not allege that any offer was actually made.

38 Secondly, although the pleading asserted that the appellant was unable to speak directly with the solicitor for a period of 14 weeks, it did not say whether the solicitor was told of the possibility of an offer, or was not told. If the solicitor had been told, it would have been necessary to make further allegations, such as that he made no inquiries as to whether there was an offer and that an offer would have been forthcoming only had the solicitor inquired. If he had not been told, his failure to respond might arguably be negligent, but the assertion by the appellant that he had not included the hint as to a possible offer in the many messages he left would stretch plausibility.

39 Apart from the incomplete allegations noted above, the only relevant particular of negligence was "refusing to discuss settlement with the plaintiff": par 34(e). There was no suggestion that the appellant was willing to settle, on particular terms or at all.

40 Thirdly, the allegations, now contained in five paragraphs, appear to be an elaboration of the allegation contained in rather different terms in the "fourth amended statement of claim", filed in October 2008 (before the judgment of Hislop J) in the following terms at par 28(e):

"During attempts by the insurer to make proper settlement including ongoing treatment in 2002, the delay in the ability to contact the first defendant and having him return calls resulted in the withdrawal of such offers by the employer's solicitors."

41 Fourthly, it is by no means clear that such a claim, if properly pleaded, would fall outside the immunity, merely by describing it as an opportunity to settle the matter "extra-judicially". No particular of loss related specifically to this ground. It would seem unlikely that such a claim could succeed without resulting in a consent judgment which would have been inconsistent with the judgment in fact given in the District Court.

42 There may well be acts or omissions of a solicitor with respect to pending litigation which do fall outside the scope of the immunity; however, because the pleading is inadequate to raise a tenable claim of negligence resulting in compensable loss, it is not helpful to pursue further the extent to which an alleged negligent failure to pursue a settlement offer might constitute conduct outside the scope of the immunity.

Conclusion

43 No claim of loss falling outside the scope of the immunity has been identified in respect of either practitioner. Accordingly, the order dismissing the proceedings was properly made.

44 The foregoing analysis is based upon an assumption as to the accuracy of the allegations contained in the pleading which was put before this Court for the purpose of argument. That document, which was not before the primary judge, does not demonstrate that his decision to dismiss the proceedings generally was in error. Further, no findings are made or implied as to the truth or accuracy of the allegations.

45 The Court should make the following orders:

46 (1) Direct that the amended statement of claim prepared for the hearing of the appeal should be marked for identification "A" and placed on the Court file.

(2) Dismiss the appeal from the judgment of Hislop J in the Common Law Division delivered on 2 April 2009.

(3) Order the applicant to pay the respondents' costs of the proceedings in this Court.

47 WHEALY JA: I agree with Basten JA's reasons and the orders his Honour proposes.

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Decision last updated: 18 April 2012