Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Young v Hones [2014] NSWCA 337
• Hearing dates: 2 May 2014
• Decision date: 01 October 2014
• Before: Bathurst CJ at [1]; Ward JA at [41]; Emmett JA at [305]

Decision

Appeal dismissed with costs.

[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: PROCEDURE - appeal - separate determination of question - whether the trial judge erred in determining separate questions of law prior to the close of pleadings, where the parties agreed to that course - whether trial judge erred in determining separate questions without reference to proposed statement of claim; PROCEDURE - pleadings - where statement of claim did not allege fraud and defence pleaded advocate's immunity - whether bad faith can be alleged in reply to advocate's or witness immunity; TORTS - negligence - advocate's and witness immunity - whether trial judge erred in articulating and applying tests for advocate's and witness immunity - whether the scope of advocate's immunity extends to acts or omissions in bad faith - whether the scope of advocate's and witness immunity extends to statutory causes of action; TORTS - negligence - witness immunity - where expert witness participated in expert conclave and gave evidence at costs hearing - whether trial judge erred in finding expert retained for the purpose of giving evidence
• Legislation Cited: Civil Procedure Act 2005 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Fair Trading Act 1985 (Vic); Fair Trading Act 1987 (NSW); Trade Practices Act 1974 (Cth); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Abriel v Rothman [2004] NSWCA 40; Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85; Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585; Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510; Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279; Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209; Bott v Carter [2012] NSWCA 89; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590; CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601; Chamberlains v Lai [2006] NZSC 70; (2007) 2 NZLR 7; Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454; Coco v The Queen [1994] HCA 41; (1994) 179 CLR 427; Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268; Coshott v Barry [2009] NSWCA 34; Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; Donellan v Watson (1990) 21 NSWLR 335; Donnellan v Woodland [2012] NSWCA 433; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; [1981] 1 All ER 715; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87; Fell v Brown, Esq. (1791) Peake 131; 170 ER 104; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125; Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; Goddard Elliott (a firm) v Fritsch [2012] VSC 87; Gray v Morris [2004] QCA 5; [2004] 2 Qd R 118; Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365; Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335; Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398; Keefe v Marks (1989) 16 NSWLR 713; Kingston v Corker (1892) 29 LR Ir 364; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573; M (a Minor) v Newnham London Borough Council [1995] 2 AC 633; MacRae v Stevens [1996] Aust Torts Reports 81-405; Marrinan v Vibart & Anor [1963] 1 QB 528; New Zealand Defence Force v Berryman [2008] NZCA 392; Palmer v Durnford Ford (1992) QB 483; Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; R v Skinner [1772] Lofft 54; 98 ER 529; Rees v Sinclair [1974] 1 NZLR 180; Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Stanton v Callaghan [2000] 1 QB 75; Stevens v Rowe (1880) 47 Am. Rep. 231; Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436; Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689; Watson v McEwan [1905] AC 480; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515; X v Bedfordshire County Council [1995] 2 AC 633; Young v King [2004] NSWLEC 93; Young v King (No 4) [2012] NSWLEC 236; Young v Hones (No 2) [2013] NSWSC 1429; Young v Hones (No 2) [2014] NSWCA 338
• Texts Cited: Justice Blair et al, Bullen & Leake & Jacob's Precedents of Pleadings, (17th ed 2012, Sweet & Maxwell); Sir Jack Jacob and Iain Goldrein, Pleadings: Principles and Practice (1990, Sweet & Maxwell); The Hon Peter Young and Hugh Selby, Rose's Pleadings Without Tears in Australia (1997, Federation Press)
• Category: Principal judgment
• Parties: Margo Young (Appellant); Brian Keith Hones (First Respondent); Jason Hones (Second Respondent); Ian Hemmings (Third Respondent); Hughes Trueman Pty Ltd (Fourth Respondent); Stephen John Perrens (Fifth Respondent)
• Representation: Counsel: RD Newell (Appellant); JC Kelly SC with MJ Darke (First and Second Respondents); DT Miller SC with Ms PA Horvath (Third Respondent); DB Studdy SC with SE Gray (Fourth and Fifth Respondents); Solicitors: LC Muriniti & Associates (Appellant); Colin Biggers & Paisley (First and Second Respondents); Moray & Agnew (Third Respondent); Kennedys (Fourth and Fifth Respondents)
• File Number(s): CA 2013/00301763
• Publication restriction: Nil

Decision under appeal

• Citation: Young v Hones (No 2) [2013] NSWSC 1429
• Date of Decision: 2013-09-27 00:00:00
• Before: Garling J
• File Number(s): SC 2010/00041007

HEADNOTE

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

This judgment relates to an appeal from a decision of the Common Law Division of the Supreme Court dismissing the proceedings, after a separate determination of questions of law were answered in favour of the defendants.

The proceedings at first instance concerned claims of negligence against Ms Young's former solicitors, barrister, engineer expert witness and engineering firm, for negligence (and in the case of the lawyer respondents, claims of misleading and deceptive conduct). All parties had agreed to the separate determination of whether, as a question of law, advocate's immunity, in the case of the lawyer respondents, or witness immunity, in the case of the engineer respondents, was a complete defence to the claims. After answering the questions in the affirmative, the primary judge dismissed the proceedings.

Held dismissing the appeal:

Determination of separate questions in advance of close of pleadings

(1) by Ward and Emmett JJA (at [143] & [150] and [312], respectively), Bathurst CJ agreeing (at [1]) any allegation of mala fides on the part of the lawyer respondents should have been raised in the statement of claim not in reply.

Banque Commerciale SA En Liquidation v Akhil Holings Ltd [1990] HCA 11; (1990) 169 CLR 279 distinguished.

Kingston v Corker (1892) 29 LR Ir 364 followed.

(2) by Bathurst CJ and Ward and Emmett JJA (at [5], [154] and [313], respectively) it was undesirable to determine the separate questions before the close of pleadings.

(3) by Bathurst CJ and Ward and Emmett JJA (at [6], [151] & [155] and [313], respectively) his Honour did not err in determining the separate questions before the close of pleadings, where Ms Young made the forensic decision to consent to that course.

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 considered.

(4) by Ward JA (at [291]-[292]) Bathurst CJ and Emmett JA agreeing (at [1] and [315]) in not allowing Ms Young to file a reply, his Honour did not deny her natural justice.

Summary dismissal where there is a real question of law/fact to be determined

(5) by Ward JA (at [164]-[165]) Emmett JA agreeing (at [315]) his Honour did not consider an unsettled question of law in a summary dismissal application, but rather made an appropriate final determination of a separate question of law in advance of other issues in the proceedings. (Bathurst CJ agreeing (at [4]) that this was not a summary dismissal application.)

(6) by Ward JA (at [185]) Bathurst CJ and Emmett JA agreeing (at [1] and [315], respectively) there was no error in his Honour determining the question of witness immunity in advance of making factual findings as to any disputes in relation to that conduct.

Symonds v Vass [2009] NSWCA 139; (2009) ALR 689 considered.

Donnellan v Woodland [2012] NSWCA 433 applied.

Articulation and application of test for advocate's immunity

(7) by Bathurst CJ and Ward and Emmett JJA (at [3], [195] and [312], respectively) there was no error in his Honour not considering an allegation of breach of fiduciary duty in the proposed statement of claim; the relevant consideration was the current amended statement of claim.

(8) by Ward JA (at [217]-[218]) (Bathurst CJ and Emmett JA agreeing at [1] and [315], respectively) his Honour did not err in articulating or applying the test of advocate's immunity.

(9) (obiter) by Ward JA (at [150] & [228]), Emmett JA not deciding (at [312]) there is no reason to conclude that advocate's immunity does not extend to conduct which is mala fide.

Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436 distinguished.

(10) (obiter) by Ward JA (at [172]-[174] & [176]) advocate's immunity from suit applies to statutory causes of action; and (at [175]-[176]) witness immunity also applies to statutory causes of action.

(11) by Ward JA (at [232]) Bathurst CJ and Emmett JA agreeing (at [1] and [315], respectively) his Honour did not fail to provide adequate reasons for his conclusion as to the scope of advocate's immunity.

Articulation and application of test for witness immunity

(12) by Bathurst CJ and Ward JA (at [35] & [40] and [251] & [280], respectively) Emmett JA agreeing (at [315]) the test for witness immunity requires a connection between the work performed and the conduct of the case in court; his Honour applied this test to determine whether the work undertaken by the engineer respondents fell within the scope of witness immunity.

Palmer v Durnford (1993) QB 983 considered.

Stanton v Callaghan [2000] 1 QB 75 considered.

Darker v Chief Constable of West Midland Police (2001) 1 AC 435 considered.

Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 applied.

(13) by Bathurst CJ and Ward JA (at [39] & [40] and [261], [271], [274]-[275] & [288]-[290], respectively) Emmett JA agreeing (at [315]) his Honour did not err in concluding that the engineer respondents' were immune from suit in circumstances where they were retained for the purpose of the proceedings and ultimately gave evidence in the experts' conclave and the costs hearing.

(14) (obiter) by Ward JA (at [276]) regardless of whether the engineer respondents' retainer contemplated the giving of evidence, there is sufficient connection between the alleged negligent conduct and the settlement of the proceedings to bring the conduct within the scope of witness immunity.

(15) by Ward JA (at [283]-[284]) Bathurst CJ and Emmett JA agreeing (at [1] and [315]) his Honour provided sufficient reasons to explain his decision that the conduct of the respondent engineers fell within the scope of witness immunity.

Conclusion

(16) by Bathurst CJ (at [11] and [40], respectively) Ward JA (at [302]) and Emmett JA agreeing (at [315]) advocate's immunity and witness immunity are complete answers to the claims raised against the lawyer and engineer respondents, respectively.

Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510 distinguished.

Donnellan v Woodland [2012] NSWCA 433 considered.

Judgment

1 BATHURST CJ: I have had the advantage of reading in draft the judgments of Ward JA and Emmett JA. Subject to what I have written below, I agree with the orders proposed by Ward JA and with her Honour's reasons. I also agree with the additional remarks of Emmett JA.

The method of disposal

2 It is important to bear in mind that the primary judge disposed of the proceedings by answering separate questions ordered by him on 2 August 2013. The order for separate questions made by the primary judge was in the following terms:

"1. I order that in addition to the hearing of the motions for summary dismissal on 23 August 2013, that the following separate questions be heard on that day:

(a) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the first and second defendants;

(b) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the third defendant;

(c) Is the defence of witness immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the fourth and fifth defendants.

2. I order that those separate questions be heard and determined in advance of all other questions in the proceedings."

3 The parties agreed to this course and subject to the appellant's unsuccessful attempt to file a further amended statement of claim (Young v Hones (No 2) [2013] NSWSC 1429 (primary judgment) at [126]) the question of the witness immunity of suit (the immunity) was to be dealt with on the pleadings as they existed at that time.

4 Two consequences followed. First, this was not a case where it was sought to strike out or summarily dismiss the amended statement of claim, as to which the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129 would have applied.

5 Second, as stated by Ward JA (at par [154]) and Emmett JA (at par [313]) the approach adopted by the primary judge in the circumstances of the present case, with respect, was undesirable. In Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335, I emphasised that it was not appropriate in all cases for questions of advocate's immunity to be decided as a preliminary question. The present case was one which, to adopt the words of Kirby P in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, was not ripe for determination by way of separate question.

6 However, the appellant consented to the course adopted. As Ward JA has pointed out (at par [155]) she should be bound by that forensic decision.

The position of the lawyers

7 The pleading asserts that the first and second defendants (the solicitors) were retained in April 2003 to advise the appellant of her rights arising out of unlawful work carried out by her neighbours (amended statement of claim par [55]). It asserts that advice was given to commence proceedings in the Land and Environment Court (amended statement of claim par [57]). It pleads that the third defendant (the barrister) was retained in May 2003 to advise and appear in the Land and Environment Court proceedings.

8 The pleading then alleges (amended statement of claim par [71]) that the Local Council was a necessary party to the proceedings in the Land and Environment Court. It then pleads (amended statement of claim par [75]) that it was incumbent on the solicitors to advise the plaintiff, in effect, that to obtain an order (under s 124 of the Environmental Planning and Assessment Act 1979 (NSW)) that the neighbours reinstate the land on which the unlawful work occurred, the Local Council was a necessary party. The pleading alleges that the solicitors and the barrister failed to give that advice (amended statement of claim par [83]). That conduct was alleged to constitute a breach of a duty of care owed by them to the appellant and, with respect to the solicitors, misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth).

9 The critical paragraphs of the amended statement of claim are pars [102]-[107]. These paragraphs were in the following terms:

"102. A reasonable person in the position of:

(a) The First and/or Second Defendant would have provided the advice pleaded at paragraph 75 and would not have settled the proceedings except on the basis of orders providing for the Kings to take responsibility for the drainage of their land; and,

(b) In the position of the Third Defendant would have given the advice pleaded at paragraph 97;

103. At or about 3:00 pm on 16 February 2004 an expert conclave produced a document later called 'Exhibit A'. Exhibit A recorded drainage works purportedly recommended by the conclave of experts:

(a) Isolate drainage system for wall from stormwater

(b) Take to outlet in rear yard n. 37 at RL 7.95

(c) Lower existing 65 mm pipe to the wall footing zone at lowest level possible, considering grade to outlet to rear yard of no. 37;

104. Between 16 and 19 February 2004 (the duration of the hearing) the Second and Third Defendants without consultation with or instructions from the Plaintiff purported to settle the Plaintiff's claims in the proceedings on terms that:

(a) The Plaintiff consented to an order dismissing the Proceedings ('the Consent Order')

(b) The Kings gave an undertaking to the Court to submit a Development Application seeking approval for a retaining wall ('the Undertaking DA'), and;

(c) The Kings to seek approval to undertake the Exhibit A works as part of the Undertaking DA ('the Settlement').

105. The Settlement was wholly inadequate in the interests of the Plaintiff in that it represented a wholly inadequate alternative to the 124 Order:

(a) The Undertaking did not contemplate that the Kings would take responsibility to drain their land;

(b) The Settlement did not provide for an enforceable obligation or otherwise ensure that the Kings would take responsibility to drain their land;

(c) The Settlement did not contemplate that the Kings construct and provide drainage through their land for the retaining wall necessary to support the Plaintiff's land in contradistinction to the 20 cm retaining wall approved by Council.

(d) The Settlement did not contemplate that the Kings construct and provide drainage through their land for the retaining wall necessary to support the Plaintiff's land in contradistinction to the 20 cm retaining wall approved by Council.

(e) The settlement prevented the Plaintiff returning to Court to seek an appropriate remedy in circumstances that such an appropriate remediation was not achieved by the Undertaking DA.

106. The Settlement was a breach by the First Defendant of the express term of the Plaintiff's Retainer with the First Defendant that no steps would be taken by the First Defendant without consultation with the Plaintiff.

107. The Plaintiff has suffered loss and damage by reason of the Settlement and would not have suffered the loss and damage but for:

(a) The breach of contract pleaded at paragraph 106;

(b) The breaches of duty pleaded at paragraphs 81, 82, 85 and 98, and by reason of:

(c) The contraventions pleaded at paragraph 83."

10 Although the pleading in par [102] of the amended statement of claim alleges that a reasonable person in the position of a barrister would have given the advice pleaded in par [97], par [97] in fact relates to the fourth and fifth defendants (the engineers), and not to the barrister. However, the pleading had earlier alleged that by reason of the duty of care owed by the barrister to the appellant, it was incumbent on him to advise the appellant that it was necessary to join the Local Council in the proceedings. It should be noted that the barrister was retained after the proceedings in the Land and Environment Court had commenced.

11 What appears from the pleadings is that the loss suffered was alleged to have resulted from the settlement of the proceedings in breach of the duty owed by the lawyers to the appellant. Although it is pleaded that but for the earlier breaches, the loss would not have been suffered (amended statement of claim par [107](b)) the cause of the loss was the alleged negligent conduct in causing the appellant to enter into the settlement. In these circumstances the claim against the solicitors and the barrister related to work done out of court which led to a decision affecting the conduct of the case in court: Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 (Giannarelli) at 560 and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (D'Orta) at [86].

12 I have reached this conclusion with some misgivings because as I indicated, the issue was one not ripe for determination by way of a separate question. Not only had the pleadings not closed but the amended statement of claim itself is obscure and there remains a possibility that had the issues been more precisely defined a different result may have been reached. However, as I indicated, the appellant is bound by the forensic choice she made in the Court below.

The position of the engineers

13 The appellant in her submissions did not suggest that the Court should follow the decision of the United Kingdom Supreme Court in Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398. In that case a majority of the Court (Lord Hope and Baroness Hale dissenting) held that immunity from suit for breach of duty, which expert witnesses retained in litigation had enjoyed previously, should be abolished. In my opinion the appellant was correct in adopting this course.

14 In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139, 141 and 149, the High Court upheld the immunity without engrafting any exceptions to it. Rich ACJ explained at 139 that proceeding against a witness is an attempt to re-examine the judgment in the earlier proceedings. He cited with approval the statement of Allen J in Stevens v Rowe (1880) 47 Am. Rep. 231 at 232, to the effect that "[t]he procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation".

15 In Giannarelli the existence of the advocate's immunity was affirmed. Mason CJ described at 533 the foundation of the principle as being that mischief would result if those engaged in the administration of justice were not able to speak freely (see also 569-570 per Wilson J and 595 per Dawson J).

16 The immunity was also affirmed by the plurality in D'Orta at [39]-[40]. They referred at [41] to the fact that statements can be found in the cases that the immunity serves to encourage freedom of expression or freedom of speech. They also stated that the deeper consideration that lies beneath the principle is that determining whether the complaint against the witness is or is not justified requires relitigation of the matter out of which the complaint arises.

17 Two matters arise from those cases. First, it is not open to this court to vary or engraft exceptions to the immunity. Second, once it is appreciated that, like advocate's immunity, the principle underlying the immunity is the principle of finality, there is no logical reason to exclude experts from its scope.

18 There remains the question to what extent the immunity extends to out of court work conducted by experts. The immunity of witnesses from activities engaged pre-trial have been considered in a number of cases. However, in dealing with those cases it is important to bear in mind the underlying rationale for the immunity in this country.

19 In Watson v McEwan [1905] AC 480 it was held by the House of Lords at 487 per Earl of Halsbury LC (the other Lords agreeing) that the privilege surrounding the evidence actually given in court necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of the proceedings.

20 The position of an expert in a criminal context was considered by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 (Evans). That case involved a report made by various analysts employed by the hospital following a post-mortem examination of a deceased child. The report stated that organs of the child contained various concentrations of morphine. The result was reported to the police in the form of a statement and formed the basis of a prosecution of the mother. However, at the trial no evidence was presented as it appeared the analysis was contaminated. The mother subsequently sued the hospital and the analysts claiming negligence in, amongst other things permitting the organs to become contaminated, not appreciating the high likelihood of contamination and not retracting their reports subsequently.

21 Drake J held that the hospital and the analysts were immune from suit. He stated at 191 that for the object of the immunity to be achieved it should extend to cover statements made by the witness prior to the issue of a writ or commencement of a prosecution. This was provided the statements were made for the purpose of such an action and at a time when such an action is being considered.

22 In Palmer v Durnford Ford [1992] QB 483 (Palmer) Simon Tuckey QC, sitting as a Deputy Judge of the High Court, considered the issue in the context of civil proceedings. He reached the following conclusion as to the scope of the immunity:

"The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198 in the analogous but not identical situation of the advocate's immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.

I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not."

23 In X v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson (with whom the other members of the House agreed), stated at 755 that he found the reasoning of Drake J in Evans compelling in criminal proceedings. His Lordship stated that he expressed no view as to the position in ordinary civil proceedings, but stated that nothing he had said cast any doubts on Palmer.

24 In Stanton v Callaghan [2000] 1 QB 75 the plaintiffs engaged the defendant, a structural engineer, to prepare a report on repairs necessary to a property. The plaintiffs' insurers rejected a claim for the cost of the work and proceedings were commenced. The defendant was retained as an expert but following a meeting with the insurers' expert he changed his report. The plaintiff brought proceedings claiming the defendant was negligent in accepting as adequate the work proposed in the joint report. It was held that the defendant was immune from suit. It does not appear to have been alleged that the engineer was negligent in the preparation of his original report.

25 Chadwick LJ, after reviewing the authorities, stated the following principles in relation to experts' reports at 100:

"What, then, is the position in relation to expert reports? It seems to me that the following propositions are supported by authority binding in this court: (i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed."

26 However, his Lordship was prepared to accept at 101-102 that the immunity extended to a report prepared for the purpose of exchange prior to trial even if a trial of the proceedings did not take place.

27 Otton LJ, after referring with approval to Palmer stated at 104 that the relevant test was one "of principal and proximate connection". Nourse LJ, after referring to Palmer said at 109 that a substantial purpose test might be preferred.

28 In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 it was held the immunity did not extend to debar a claim against police who were potential witnesses in a prosecution against the plaintiff, although they were ultimately never called. It was alleged the police officers had fabricated evidence in what was described as the investigative process. Lord Hope stated at 446 that he agreed with the speech of Lord Hutton. He added at 449 that he would not accept for all purposes the description of the extent of the immunity given by Drake J in Evans. He stated that the immunity extends only to the content of the evidence which the witness gives or is preparing to give based on material collected by him or her. He said that the acts of the witness in collecting material on which he or she may later be called upon to give evidence are not protected.

29 Lord Mackay stated at 452 that the immunity was limited to conduct which can be called in question only by a founding on a statement in court or a statement which is part of the preparation of evidence for court proceedings. Lord Cooke on the other hand stated at 454 that the immunity did not extend to the fabrication of evidence.

30 Lord Clyde emphasised at 457-458 the importance of the finality of litigation. However, he stated at 459 that it was not enough that there be an investigation, the investigation must be with a view to an action or prosecution which is already under consideration.

31 Lord Hutton emphasised at 471 the difference between steps taken for the purpose of making a statement of evidence which the maker intends to be accurate and truthful (which is covered by the immunity) and the steps taken for the wrongful purpose of fabrication of evidence (which is not covered).

32 Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 was a case somewhat similar to Evans. An analyst employed by the appellant issued a certificate stating that a substance contained a prohibited drug. The certificate was used in the prosecution of the owner, who was convicted. The owner was acquitted on appeal on the basis the certificate was manipulated. He brought proceedings against the appellant and the analyst. It was held the immunity applied.

33 Beazley JA (as her Honour then was) with whom Mason P agreed, extensively reviewed the authorities. She concluded at [84] that the immunity extended beyond the giving of evidence in court, but for it to apply there must remain a connection with the evidence which is to be given. She pointed out at [93] that in the case before her the sample was to be used for the purpose of a prosecution and that permitting the proceedings before her to be brought would be contrary to the underlying rationale of the immunity, namely, finality of litigation.

34 Finally, although New Zealand has abolished advocate's immunity it has not limited witness immunity in a manner similar to the United Kingdom: Chamberlains v Lai [2006] NZSC 70; (2007) 2 NZLR 7. In New Zealand Defence Force v Berryman [2008] NZCA 392 at [68] the New Zealand Court of Appeal stated that the immunity was limited to what was said in court and the necessary preliminaries to that evidence.

35 This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate's immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court: D'Orta at [86].

36 As with the case against the lawyers I have some doubts whether the question of the engineers' immunity was ripe for determination. However, the appellant is bound by the course she had taken below.

37 Importantly the amended statement of claim pleads the engineers were retained by the appellant in early November 2003 after the commencement of the proceedings in the Land and Environment Court.

38 The pleading states (at par [95]) that the fifth respondent, for whom the fourth respondent was said to be vicariously liable, was briefed with documents relating to the application in the Land and Environment Court, including the points of claim. It pleads (amended statement of claim par [103]) that an expert conclave in which the fifth respondent participated recommended certain remedial works. The pleading then refers to the settlement with the neighbours, which included an undertaking by the neighbours to seek development approval for work, including the remedial work (amended statement of claim par [104]). It pleads that the settlement was inadequate (amended statement of claim par [105]) and that the appellant suffered loss and damage as a result.

39 The pleading thus alleges that the engineers were retained for the purpose of the proceedings, failed to advise as to the appropriate extent of the remediation work and negligently agreed at the expert conclave to inadequate remediation work as being necessary. It is alleged this caused the entry into the settlement, which is alleged to have resulted in the loss claimed by the appellant.

40 It follows that the work done by the engineers was work done out of court which affected the conduct of the case in court. The claim arose directly out of the result of an expert conclave which formed part of the proceedings in the Land and Environment Court. In those circumstances, in my opinion, the primary judge was correct in deciding that the engineers were immune from suit.

41 WARD JA: Ms Young is a pensioner who lives in Forestville. She was involved in Land and Environment Court proceedings in 2003/4 in relation to her complaint as to building works carried out on her neighbours' property. Those works included excavation on the boundary of Ms Young's property, the construction of a granny flat on the neighbours' land and a "massed footing" and retaining wall on the boundary. Ms Young's complaint was as to the impact of the works on drainage from her property, which is up slope from her neighbours' property.

42 The Land and Environment Court proceedings were resolved in 2004 following a settlement reached by the parties shortly after the hearing commenced. The only issue left outstanding in that settlement was as to who should bear the costs of the proceedings. That issue was determined in favour of Ms Young (Young v King [2004] NSWLEC 93) by McClellan CJ at LEC (as his Honour then was) following a short hearing in the course of which evidence was given by expert engineering witnesses called by each of the parties.

43 Settlement of the substantive dispute involved the acceptance by Ms Young of an undertaking by her neighbours to lodge a development application for works to their property that the experts for the respective parties had agreed needed to be done in order to rectify the environmental problems caused or likely to be caused by what were conceded, at least in part, to have been unauthorised works on the neighbours' property.

44 The present proceedings in essence arise out of Ms Young's ultimate dissatisfaction with the rectification solution that the experts had agreed would be appropriate and on the basis of which she had settled the Land and Environment Court proceedings. That solution, which it is not disputed has never been implemented, is said by Ms Young to be unworkable and "illusory".

45 Ms Young contends that the effect of the settlement has been, as a practical matter, to shift from her neighbours to herself the burden of responsibility for drainage from her property and that this was part of a Council "agenda" (with which Ms Young has suggested the first, second and third respondents were complicit). Ms Young does not suggest any reason why Council would have had an interest as to who, as between Ms Young and her neighbours, should bear the burden of drainage from Ms Young's property; nor why the first, second and third respondents to the present proceedings would have promoted such an "agenda". That seems to be no more than a matter of conjecture.

46 Ms Young contends that the appropriate course to have been adopted was for the reinstatement of the neighbouring property, to put the property back in the position in which it was prior to the unauthorised works. Her complaint is that she is now unable, by virtue of the settlement, to pursue such a course of action.

47 In 2010, Ms Young commenced proceedings in the Common Law Division, against those who were retained by or on her behalf in relation to the Land and Environment Court proceedings and/or who gave advice as to issues relevant to the settlement of the dispute the subject of those proceedings, namely: her then solicitors (the first and second respondents); the barrister retained to advise and appear for her in the proceedings (the third respondent); the expert hydrological engineer who gave evidence at the hearing in relation to costs and who had participated in the experts' conclave that led to the settlement of the proceedings (the fifth respondent); and the engineering services company which had employed that expert engineer and was said to be vicariously liable for his conduct (the fourth respondent). I refer to the first three respondents, collectively, as the lawyer respondents and the remaining respondents as the engineer respondents.

48 Ms Young claimed damages, including the diminution in the value of her house and the fees incurred in the Land and Environment Court proceedings, from the lawyer respondents for negligence and misleading and deceptive conduct and from the engineer respondents for negligence. After the proceedings had been on foot for some time, she sought, unsuccessfully, to amend her pleading to allege breach of fiduciary duty by the lawyer respondents, asserting that they had acted mala fide in preferring the interests of the Council over her own interest in the proper drainage and retention of her land. In that regard, her contention was that the conduct of the lawyer respondents was so poor that it could only rationally be explained by an inference of mala fides.

49 The appeal now brought by Ms Young is from the summary dismissal by Garling J of the Common Law Division proceedings, prior to a hearing on the merits of Ms Young's claims, consequent upon his Honour's determination that, as a matter of law, advocate's or witness immunity was a complete answer to all of the claims made against the lawyer and engineer respondents, respectively (Young v Hones (No 2) [2013] NSWSC 1429).

50 Ms Young's appeal is as of right. For the reasons set out below, I am of the opinion that her appeal should be dismissed with costs.

Background

51 As is evident from the above brief introduction, the present proceedings are the culmination of many years of dispute in relation to building work carried out on Ms Young's neighbours' property in mid-2001. A development consent was issued by Warringah Council on 5 February 2002 for alterations to the existing dwelling including the creation of a granny flat and construction of a retaining wall and garden shed (see [43] of the amended statement of claim). A construction certificate was subsequently issued on 11 December 2002 by Warringah Council (see [53] of the amended statement of claim). Ms Young now contends that the construction certificate falsely noted the level of excavation that had been carried out and that this had the effect of validating the earlier unauthorised excavation.

52 Ms Young commenced class 4 proceedings in the Land and Environment Court against her neighbours on 14 April 2003. She had retained the first two respondents as solicitors to advise her in relation to the dispute. They were at all relevant times the solicitors with conduct of the proceedings. The third respondent was not briefed in the matter until May 2003, after the proceedings had been instituted.

53 The points of claim filed in the Land and Environment Court proceedings were not before this Court. However, the ambit of the claims in those proceedings can be discerned from the description given by the primary judge in the proceedings the subject of this appeal (Young v Hones (No 2) at [15]-[16]) from which the parties did not demur, namely that in the Land and Environment Court proceedings, Ms Young had pleaded trespass and various illegalities affecting the works undertaken by her neighbours and had claimed relief including declarations, injunctions and damages. This is consistent with the description given by McClellan CJ at LEC, in his costs judgment in the Land and Environment Court proceedings ([2004] NSWLEC 93) (a copy of which was annexed to an affidavit given in support of the solicitor respondents' amended notice for dismissal of the proceedings (at [13] and [14])).

54 Warringah Council was not joined as a party to the Land and Environment Court proceedings, a matter in respect of which Ms Young takes issue in her claims against the lawyer respondents in the present proceedings. Ms Young contends that the Council was a necessary party to those proceedings on the basis that, for reinstatement of the neighbours' property to be ordered, it would be necessary to set aside the 2002 Council consent, and that the lawyer respondents knew or should have known this and should have advised her accordingly.

55 The matter was listed for hearing on 16 February 2004 before McClellan CJ at LEC. During the course of that day, the experts retained for the respective parties (one of whom was the fifth respondent) met in conclave and reached an agreement between themselves as to the works necessary for rectification (or remediation) of the environmental problems on the site. Whether or not the conclave was pursuant to a formal direction by the Court is not clear. However, it appears to be accepted that the conclave was at least in a practical sense one held under the auspices of the Court.

56 Following that conclave, Ms Young accepted an undertaking by her neighbours as to the lodgement by them of a development application to carry out the agreed works. That undertaking was noted by the trial judge, who then dismissed the proceedings by consent. In relation to the sole remaining issue in dispute between the parties, the issue of costs, McClellan CJ at LEC held a short hearing in the course of which he heard evidence from the respective experts. His Honour accepted the fifth respondent's analysis of the situation and his conclusion that the construction of the footing on the boundary of the two properties, without adequate drainage, would have the consequence, in significant wet periods, of locally raising the water table adjacent to a cottage on the property ([33]). His Honour further accepted the fifth respondent's opinion that the works which the neighbours had agreed to undertake had been made necessary by reason of the construction, without consent, of a retaining wall on their property ([34]). His Honour concluded that Ms Young had in effect succeeded in the proceedings and made a costs order in her favour ([35]).

57 That did not, however, bring an end to this litigious saga.

58 In 2008, Ms Young sought relief from the Land and Environment Court to vacate or set aside the consent orders that had been made by McClellan CJ at LEC. That application for relief (of which it seems there were a number of versions) was ultimately dismissed in 2012 by Sheahan J (Young v King (No 4) [2012] NSWLEC 236). His Honour summarised the "long and complex history" of the proceedings. His Honour noted (at [401]) that early allegations of collusion, fraud and conspiracy were detailed in correspondence in late November 2011 and that those had "flowered" and widened over time since then. His Honour noted (at [401]) that the respondents to those proceedings (the neighbours) had not been implicated directly in those allegations and (at [402]) that all that was put against them were imputations of knowledge and/or motive. According to Sheahan J, the Court was being invited to deduce that there were no alternative explanations, or descriptions, of their (i.e., the neighbours') conduct (other than explanations consistent with collusion, fraud or conspiracy) ([402]). (Similar logic seems to have informed the pleading of the proposed further amended statement of claim for which leave was refused in the Common Law Division proceedings against the lawyer respondents.)

59 Ms Young apparently also commenced proceedings in the District Court against her neighbours and the Council for damages (since part of the relief she claimed in the Common Law Division proceedings included the costs of such proceedings). Nothing was drawn to this Court's attention as to the precise claims made in those proceedings.

60 In February 2010, Ms Young commenced the Common Law Division proceedings against the respondents. The initial statement of claim filed by Ms Young was not included in the appeal books, nor were the defences that were filed to that statement of claim.

61 In the period up to April 2013, Ms Young served on the parties numerous iterations of an amended statement of claim leading up to the filing on 5 August 2013, by leave of the Court, of amended statement of claim that is the subject of the present approval. The circumstances in which that leave was granted were canvassed in the reasons published today (Young v Hones (No 2) [2014] NSWCA 338) in relation to the dismissal by this Court on 2 May 2014 of Ms Young's application for leave to appeal from the primary judge's subsequent refusal to permit a further amendment of the statement of claim to include, relevantly, allegations of breach of fiduciary duty against the lawyer respondents.

62 In her amended statement of claim filed on 5 August 2013, Ms Young pleaded causes of action for breach of contract against the first and fifth respondents; in tort against each of the five respondents; and for misleading or deceptive conduct in breach of the Fair Trading Act 1987 (NSW) and the now repealed Trade Practices Act 1974 (Cth) against each of the lawyer respondents.

63 The primary judge fixed 23 August 2013, with the consent of the parties, for the hearing of questions of law as to whether the defence of advocate's immunity (in the case of the lawyer respondents) and witness immunity (in the case of the engineer respondents) was a complete answer to all the causes of action on which Ms Young relied against the respective respondents. On that day, Ms Young made an application for leave further to amend her statement of claim to include allegations of breach of fiduciary duty against the lawyer respondents. His Honour reserved judgment on that application and indicated that he would deal with the separate questions of law on the written submissions.

64 The respondents had maintained that advocate's or witness immunity, as the case may be, was a complete answer to Ms Young's claims against them and sought an order that Ms Young's claims be dismissed if there were to be a favourable determination of the separate questions. His Honour in due course made such an order, having found for the respondents on the separate questions of law.

Amended statement of claim

65 Before turning to his Honour's reasons for summarily dismissing the proceedings (Young v Hones (No 2)), it is necessary to summarise the relevant parts of Ms Young's amended statement of claim since it is from this document that the impugned conduct in respect of which immunity was held to be a complete defence must be identified. There is no allegation of fraud, breach of fiduciary duty or mala fides in that pleading.

66 No defences had been filed at that stage in answer to the amended statement of claim. The argument before the primary judge proceeded on the basis that the defences of immunity already pleaded in answer to an earlier iteration of the statement of claim would stand as defences to the amended pleading (see [133] of his Honour's reasons).

Claims against lawyer respondents

Scope of the respective retainers

67 Although the pleading, in various places, refers to one or other of the first two respondents, for present purposes there is no relevant distinction between them. The retainer of the second respondent is pleaded at [55] as a retainer to advise Ms Young "of her rights by reason of the unlawful works undertaken by [her neighbours]" and the grant by the Council of the consent and the construction certificate. The terms of the retainer as pleaded at [59] include an implied term that the first respondent would exercise all reasonable care, skill, diligence and competence in the conduct of the retainer.

68 The retainer of the third respondent, the barrister, is pleaded at [77] as a retainer to advise the first respondent, for the benefit of Ms Young, "as to the conduct of the Proceedings in the interests of the Plaintiff and the preparation of Court documents". At [78], it is pleaded that the third respondent, by reason of the retainer, owed Ms Young a duty to exercise reasonable care and skill.

Premise of the claims against the lawyer respondents

69 The fundamental premise on which the respective claims against the lawyer respondents are brought is the combination of the allegations at [70] and [71].

70 The unlawful works were pleaded (at [16]) as including removing and/or negating the sub-division drainage system that was effected at the time of the sub-division of the land in 1958. At [70], it is alleged that, by reason of the effect of those works and "in the absence of a satisfactory proposal from [the neighbours] for remediation", the "appropriate" remedy in the interests of Ms Young in the Land and Environment Court proceedings was an order under s 124 of the Environmental Planning and Assessment Act 1979 (NSW) that the neighbours be required to reinstate their land and the buildings on their land to the state that they were in prior to the unlawful works and the previous unlawful works. This remedy was defined in the pleading as "the 124 Order".

71 Significantly, in light of the distinction now drawn by Ms Young between reinstatement and remediation, the pleading here casts reinstatement as the appropriate remedy on the basis or assumption that there was not a satisfactory proposal for remediation. Logically, once there was a satisfactory proposal for remediation then the basis on which reinstatement was alleged to be the appropriate remedy would fall away.

72 Relief under s 124 of the Act is within the discretion of the Court. Section 124 provides, relevantly, as follows:

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a) where the breach of this Act comprises a use of any building, work or land - restrain that use,

(b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or

(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

...

73 At [71], it is alleged that the Council was a necessary party to "the Proceedings which sought the 124 Order". This is alleged to be the case on the basis that Ms Young could not obtain a declaration that the 2002 consent and the 2002 construction certificate were invalid without the Council being a party and because Ms Young could not obtain the 124 Order without an order setting aside the consent ([71(a)-(b)]). It is alleged that it was necessary for the consent to be set aside because the 124 Order would involve the demolition or alteration of structures or features of the land that were approved by the consent, which was valid on its face. The respondents do not accept that the Council was a necessary party in order for Ms Young to obtain an order for reinstatement but it is not necessary for present purposes to decide this.

Alleged actual or constructive knowledge

74 It is alleged that the lawyer respondents had actual or constructive knowledge of various matters.

75 Paragraphs [72] and [73] contain the allegations as to the actual or constructive knowledge of the second respondent (the solicitor with the day to day carriage of the Land and Environment Court proceedings). That knowledge is alleged by reason of his instructions and by reference to his inspection of the Council file and certain affidavits. Particulars of the documentary source of the solicitor's actual or constructive knowledge, and the basis for the allegation of the constructive knowledge, were set out in an annexure to the pleading.

76 As against the third respondent, it is pleaded that, by reason of the matters with which he was briefed (similarly particularised in an annexure to the pleading), he knew or ought to have known, by the dates there specified, various matters including some, but not all, of the matters that it is alleged the second respondent knew or should have known ([79]).

77 Paragraph [76] contains a further allegation of knowledge on the part of the second and third respondents. Although not completely clear, what appears to be alleged at [76] is that the second and third respondents knew, no later than the respective dates there specified, that the construction certificate plans contained a particular "building waste notation". The paragraph goes on to plead that Ms Young had obtained and enhanced copies of the plans that were in her neighbour's affidavit but were illegible so far as concerned the notation. The relevance of this notation, as I understand it, is that it is alleged to record "false levels" of excavation, thus rendering compliance with the conditions of consent ineffective to address the drainage problems caused by the building works. Hence it is said it was necessary for Ms Young to challenge the validity of the development consent rather than seeking to enforce the conditions of consent in order to obtain a resolution of the drainage problem.

Alleged duty to advise as to particular matters

78 At [74], the duty of care owed by the first and second respondents is pleaded: as to the first respondent, being both a contractual and general law duty; as to the second respondent, only a general law duty. That duty is alleged to have arisen as a consequence of the solicitors' retainer and of the knowledge that it is alleged the second respondent "had acquired or inferred" as pleaded at [24], and by reason of the matters pleaded at [73]. Paragraph [24], to which reference is there made, is a pleading that certain DA Plans (as defined in [23]) had conveyed to Ms Young (not the lawyer respondents) that the development application "was calculated to provide her with a retaining wall with a 100 mm ag. drain in stocking draining to stormwater" in the neighbours' land.

79 At [75], it is alleged that, by reason of the duty pleaded at [74], it was incumbent upon the solicitors to advise Ms Young of certain matters, including that: to "remedy" the unlawful works and environmental harm caused thereby, she should seek the 124 Order ([75(a)]); the consent should be set aside and declared invalid and that she should seek orders accordingly ([75(b)]); to obtain such an order, the Council would need to be a party ([75(d)]) and was a necessary party to the proceedings ([75(e)]); and she should give her instructions to join Council as a party to the proceedings ([75(j)]). Although complaint is made in the pleading that the lawyer respondents failed to provide the said advice at any time prior to settlement, it is conceded by Ms Young (AT 43.22) that in the Land and Environment Court proceedings Ms Young did seek the relief referred to in [75(a)]. Hence, in some form, at least that part of the advice must have been given.

80 Other matters of which it was alleged that the solicitors had a duty to advise Ms Young included: that she should claim damages in trespass from her neighbours in the Supreme Court if the neighbours did not agree to pay the costs of reinstatement of "her land" ([75(g)]) and that she had a claim in damages in trespass, nuisance and the law of support in the Supreme Court that should be pressed when the land was reinstated and the damages could be quantified ([75(h)-(i)]). The allegation was not that Ms Young should have been advised to commence proceedings in another jurisdiction at the outset of her claim, as opposed to bringing the proceedings in the Land and Environment Court that were in fact brought. Moreover, in the proceedings in fact commenced there was apparently a claim for damages.

81 I refer to the advice that it is alleged the solicitors were under a duty to give to Ms Young, as set out in [75] of the pleading, as "the Legal Advice".

82 At [80], it is alleged that it was incumbent upon the barrister to provide the Legal Advice to the first respondent for the benefit of Ms Young and/or to Ms Young ([80(a)]) and to advise Ms Young to enable her to prosecute the proceedings with a view to obtaining the 124 Order "or a satisfactory remediation proposal" ([80(b)]). It is not clear to what extent the allegation in [80(b)] expands that set out in [80(a)]. Relevantly, the possibility of a remediation proposal, as an alternative to reinstatement, was there clearly contemplated as a potential and, implicitly, appropriate means of resolution of the dispute.

83 In oral submissions on this appeal, Ms Young accepted that in essence her complaint was as to a failure by the lawyer respondents to advise that the Council should have been joined in the proceedings for the purpose of being able to seek an order for the consent to be set aside (AT 43.29 - 44.2). That is not, however, precisely how the allegation is framed in the amended statement of claim.

84 At [99], it is pleaded that the risk of harm against which the respective respondents (including the engineer respondents) were alleged to have failed to take precautions (for the purposes of the breaches earlier pleaded) was the risk that a person in the position of Ms Young would not secure an outcome in the proceedings that would adequately secure the drainage and retention of her land. It is alleged that the said risk of harm was foreseeable ([100]) and was not insignificant because, in the absence of appropriate orders, damage was a "certainty" and damage was likely to be very substantial (by reference to the expense of Ms Young finding an outlet for water from her land) ([101]).

85 At [102], it is alleged that a reasonable person in the position of the solicitors would have provided the Legal Advice "and would not have settled the proceedings except on the basis of orders providing for the [neighbours] to take responsibility for the drainage of their land"; and that a reasonable person in the position of the barrister would have given the advice pleaded at [97] (sic; scil the Legal Advice pleaded at [75]). (The allegation that a reasonable person in the solicitors' position would not have settled the proceedings except on a particular basis is a curious one. The duty of the solicitors, surely, was to provide advice in relation to settlement but then to act in accordance with their instructions not of their own motion unless so instructed.)

Alleged breach of duty of care

86 At [81] and [82], respectively, it is pleaded that the lawyer respondents did not at any time prior to the finalisation of the proceedings give the Legal Advice and that each was in breach of the duty of care he owed to Ms Young to provide the Legal Advice.

87 At [104], it is pleaded that, between 16 and 19 February 2004, the second respondent and the barrister "without consultation with or instructions from" Ms Young "purported to settle" her claims in the proceedings on the terms there set out. No further elucidation is provided in the pleading as to the apparent allegation there made that the settlement was unauthorised; nor is this the basis on which loss or damage is claimed against the lawyer respondents. Given the use of the verb "purported", it seems that what is here alleged (consistent with Ms Young's fundamental complaint) is not that settlement was unauthorised but that it did not have the effect that Ms Young required or that, properly advised, she would have required. Before the primary judge, the allegation that the proceedings were dismissed by consent without Ms Young's instructions was explained as being that this happened "without consultation and without subsequent explanation":

She has never been told by her lawyer what was supposed to happen to the surface water, she has never been told anything about the agreement, because you can't explain an agreement without saying , oh, of course you are responsible for the surface water.

88 No ground of appeal is raised in relation to this aspect of the matter. In that regard, I note that in Donellan v Watson (1990) 21 NSWLR 335 at 338, Mahoney JA said:

I am conscious also that the question may arise as to the action of an advocate in the settlement of a case outside the court. In Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436, the court considered the liability of an advocate who compromises a proceeding contrary to his client's instructions. Ordinarily, such a compromise, even if the consensus be reached out of the court, is within the immunity. If the advocate, in court, secures an order based on the compromise, he will, I think, not be liable notwithstanding that the making of the agreement and so the obtaining of the order was contrary to his instructions. (my emphasis)

89 Hence, absent a pleading of fraud, the fact that the settlement may have been contrary to or not consistent with Ms Young's instructions would not preclude reliance on the relevant immunity.

Alleged misleading and deceptive conduct

90 The misleading and deceptive conduct claim against each of the lawyer respondents is pleaded from [83]-[89]. It centres on an alleged representation to the effect that the Council was not a necessary party to the proceedings for the purpose of securing a remedy for the problems caused by the unlawful works ([83]). This representation is alleged to have been false and untrue ([84]) and to have been made negligently, in that each of the lawyer respondents knew or ought to have known that the Council was a necessary party to the proceedings ([85]). The representation is particularised by reference to an email of 21 August 2003 prepared by the barrister and sent to the second respondent for publication to Ms Young.

91 At [87], it is pleaded, further and in the alternative, that insofar as the representation constituted an expression of opinion it carried an implied representation (which was false) that there were reasonable grounds for forming the opinion.

92 Insofar as it is alleged that the individual lawyer respondents contravened the Trade Practices Act, reliance is placed on their conduct as involving postal telegraphic telephonic services within the meaning of s 6(3) of that Act ([88]). It is conceded by the lawyer respondents that his Honour erred (at [144]) in accepting a submission that had been made by the first and second respondents to the effect that the Trade Practices Act did not apply to their conduct as individuals. Nothing turns on this error for present purposes.

93 Reliance on the email representation is alleged to be that Ms Young continued to retain the first respondent and did not instruct or insist that "they" join the Council as a party; and did not seek other legal representation ([89]).

Claim against engineer respondents

94 The claim against the engineer respondents is pleaded from [90]-[98].

95 At [90], it is pleaded that the fourth respondent (the company) was retained (by the first respondent and/or by Ms Young through the agency of the first respondent) "to provide advice, for the benefit of [Ms Young], as to hydrological issues in connection with the unlawful works undertaken by the [neighbours]". Paragraph [92] pleads that the second solicitor, pursuant to the retainer to advise, requested the fifth respondent to prepare a remediation plan in respect of the adverse consequences for Ms Young's property of the unlawful works and that he assumed the responsibility to advise "in relation to an appropriate remediation plan".

96 The duty of care owed by the company is pleaded as a contractual and general law duty; the duty of care owed by the expert engineer as a general law duty only ([94]).

97 At [96], actual or constructive knowledge on the part of the engineer respondents of certain matters is pleaded, including that Ms Young was seeking as her "claimed remedy" the reinstatement of the neighbouring property. Knowledge of the Land and Environment Court proceedings on the part of the engineer respondents is thus pleaded as part of the circumstances surrounding, and context of, their retainer.

98 At [97], it is pleaded that it was incumbent on the engineer respondents to advise or warn Ms Young of the matters there set out, including: that a satisfactory remediation plan would provide for drainage of both surface and sub-surface water drainage through an effective outlet in the rear of the neighbours' property as the downstream property ([97(b)]) and that, for such a remediation plan to be effective and approved by the court or the Council, it had to provide either for on-site disposal or a plastic stormwater outlet draining through with an easement through the properties to the rear of the neighbours' property ([97(c)]). It is further pleaded at [97] that it was incumbent upon the engineer respondents to advise that the fourth respondent (i.e., the engineering services company) was not in a position to prepare or design a remediation plan as an alternative to the reinstatement order by Ms Young (by reason, it seems, of the matters identified in [97(a)-(f)]). I refer to the advice or warning that it is alleged it was incumbent on the engineer respondents to give as the Engineering Advice.

99 It is alleged that, in breach of the duties pleaded at [94], the engineer respondents failed to provide the Engineering Advice at any time prior to the settlement of the proceedings ([98]). Relevantly, therefore, the alleged negligence extends to failure to provide the Engineering Advice in the context of the participation of the fifth respondent in the expert conclave that led directly to the settlement of which complaint is now made.

Damages

100 At [105], it is pleaded that the settlement of the proceedings was wholly inadequate in the interests of Ms Young "in that it represented a wholly inadequate alternative to the 124 Order".

101 This is alleged to be because: the undertaking did not contemplate that the neighbours would take responsibility to drain their land; the settlement did not provide for an enforceable obligation or otherwise ensure that the neighbours would take responsibility to drain their land; the settlement did not contemplate that the neighbours construct and provide drainage through their land for the retaining wall necessary to support Ms Young's land "in contradistinction to the 20cm retaining walls approved by Council"; and the settlement prevented Ms Young returning to court to seek an appropriate remedy "in circumstances that such an appropriate remediation was not achieved by [the undertaking accepted in relation to the development application]".

102 Particulars of the loss and damage allegedly suffered "by reason of" the settlement, and that it is alleged would not have been suffered but for the alleged breaches and contraventions are identified (after [108] of the amended statement of claim), as being: diminution to the value of Ms Young's house; further prospective damage to Ms Young's house; loss of opportunity, or a lessening of ability, to vindicate Ms Young's rights by reason of the illegal works undertaken by the neighbours by reason of an arguable res judicata following the dismissal of the Land and Environment Court proceedings; damages by reason of the costs and prejudice inherent in the need to take further proceedings to regularise the planning instruments and/or to obtain a remedy by way of reinstatement or remediation; and loss in the form of fees paid to the first respondent for which pursuant to the retainer in circumstances where it is alleged there was a total failure of consideration for the retainer (reference being there made to the alleged inadequacy of the settlement).

103 The alleged total failure of consideration for the solicitors' retainer is particularised as being that Ms Young:

... obtained no benefit whatever from the performance of the retainer agreement with [the first respondent] in that the Undertaking agreement by which she resolved her claim was not capable of being implemented and was not implemented and could not have provided any reasonable benefit if it was implemented.

104 Particulars of the fees claimed (on the basis of the alleged total failure of consideration) and related expenses included fees of $243,842.60 (noting that Ms Young had received the sum of $157,213.25 pursuant to the order that the neighbours pay her costs of the proceedings); fees charged for work in advancing the undertaking DA which "were wasted as the settlement did not provide for a solution"; bank interest on moneys borrowed to pay the solicitor's fees; and costs of and incidental to Ms Young seeking to mitigate her losses by: motion proceedings in the Land and Environment Court seeking to set aside the order dismissing the proceedings and District Court proceedings against the neighbours and the Council for damages.

Primary judgment

105 His Honour set out (at [134]-[136]) the content of the pleading of advocate's or witness immunity, respectively, in the defences that had at that stage been filed (albeit responding to an earlier version of the pleading). There is no dispute as to the accuracy of his Honour's recitation of the content of those defences.

106 As set out by his Honour, the respective pleas of immunity were as follows. The solicitors' defence filed on 14 April 2011 pleaded (at [90]) simply that advocate's immunity was a complete defence to the claim. The barrister's amended defence filed on 16 June 2011 pleaded (at [75]) in answer to the whole of the claim that he did not owe Ms Young an actionable duty in respect of the conduct pleaded "by virtue of the advocate's immunity, and on the grounds that the conduct was done by him as a barrister in court, or was work done out of court that was intimately associated with the conduct of a case in court". The engineer respondents' defence, filed on 4 May 2011, pleaded that their involvement was in the capacity of providing and giving expert evidence and that their conduct "in relation to the matters alleged ... was protected by the immunity enjoyed by experts in such circumstances". His Honour noted at [137] that Ms Young accepted that this pleading adequately raised the issue of witness immunity. There was no suggestion that his Honour was incorrect in that observation.

Advocate's immunity

107 His Honour noted (at [145]) that in substance Ms Young's claim against the lawyer respondents arose out of the conduct of the Land and Environment Court proceedings. His Honour broadly summarised the nature of the Common Law Division proceedings against those respondents as involving allegations of breach of duty "in failing to give appropriate advice about the proceedings, failing to join all of the appropriate parties to the proceedings, failing to seek appropriate orders in the proceedings and, finally, settling the proceedings on terms which were inappropriate, and disadvantageous to the plaintiff" ([146]).

108 His Honour referred to various authorities on the question of advocate's immunity (including Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Donnellan v Woodland [2012] NSWCA 433; Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689; Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585).

109 His Honour noted: (at [150]) that one of the two bases for the immunity was the principle of finality of litigation; (at [161]) that the immunity extended to the conduct of solicitors; (at [162]) that as a separate category, a claim for wasted costs attracted the immunity; and (at [163]) that, as a matter of principle, the immunity applied to claims made for damages arising from statutory causes of action (relying on Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 at [363] - [365]; MacRae v Stevens [1996] Aust Torts Reports 81-405).

110 His Honour addressed (from [164]-[166]) the question whether it was appropriate to determine the separate question raising the immunity issue on the basis of the pleadings, rather than after a trial of all of the facts, and concluded (at [167]) that in this case it was. In that regard, his Honour pointed out that the parties had consented to the determination of the separate questions at that stage of the proceedings (at [167]) and recorded his opinion that the pleadings on their face clearly identified the alleged negligence of the lawyer respondents in the conduct of the litigation (at [165]).

111 His Honour said at [166]:

The oral submissions of counsel for Ms Young also make it plain that the reach of the factual allegations underlying the alleged breaches of the duty of care, of the retainer and of the fiduciary duty (which it was intended to plead), encompass advice received about the commencement of proceedings, the drafting of the pleadings including the decision as to whether to include Warringah Council as a party, the conduct of the proceedings and, ultimately, the settlement of the proceedings on terms which were wholly disadvantageous, so it is alleged, to Ms Young.

112 His Honour was satisfied that each of the matters to which he had made reference fell comfortably within the boundaries of advocate's immunity, referring in particular to what was said by Gleeson CJ in Keefe v Marks (1989) 16 NSWLR 713 at [718E] as to the matters which would typically fall within the scope of the immunity ([168]).

113 His Honour's conclusion was that the conduct by the lawyer respondents of which complaint was made: occurred in the course of the court proceedings; was intimately connected to the conduct of those proceedings; and contributed to the result achieved in court by way of settlement ([169]); and hence that advocate's immunity provided a complete defence to the allegations made against the lawyer respondents ([170]).

114 His Honour, by way of obiter dicta since he had not permitted the amendment to Ms Young's pleading to include the allegations of breach of fiduciary duty, also addressed the issue as to whether advocate's immunity responded to a pleading of breach of fiduciary duty.

115 In that context, his Honour referred to the submission made for Ms Young that the immunity extended only to circumstances where the solicitor or barrister was acting in good faith. That submission was founded on the decision in Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436). His Honour noted that this proposition had been accepted in obiter dicta by Kennedy J in Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348, though without reasons and before D'Orta had been decided. His Honour also noted that, prior to Swinfen's case, it had been held in Fell v Brown, Esq. (1791) Peake 131; 170 ER 104 that gross negligence by a barrister attracted the advocate's immunity.

116 His Honour concluded that, in light of the clear statement in D'Orta as to the rationale for advocate's immunity being the principle of finality in litigation and the avoidance of re-litigation, there was "no basis to confine the availability of advocate's immunity only to circumstances where the lawyers were found to have acted in good faith"; noting that "[s]uch a restriction would be inconsistent with immunities granted to witnesses and judges" ([174]). Accordingly, his Honour said that even if the proposed amended statement of claim had been filed he would have found that the pleading of breach of fiduciary duty was defeated by advocate's immunity ([175]).

Witness immunity

117 As to witness immunity, his Honour again referred to various authorities, including: R v Skinner [1772] Lofft 54; 98 ER 529; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; D'Orta at [39], where witness immunity was said to extend to "preparatory steps"; and Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398.

118 At [185], his Honour described the claim made by Ms Young against Dr Perrens as being that he undertook work "pursuant to a retainer to advise and give evidence" issued to him by the solicitors on Ms Young's behalf. (Issue is taken by Ms Young with that description of the retainer.) His Honour went on to say (and this is also disputed by Ms Young) that:

[The fifth respondent] was asked to prepare an appropriate remediation plan for the purpose of presentation in the litigation, in circumstances where he was provided with the affidavit evidence of the respondents in the Land and Environment Court, and the application and points of claim filed by Ms Young.

119 His Honour then said (and Ms Young accepts that this is correct) that one of the orders sought by Ms Young in the Land and Environment Court proceedings was an order under s 124 of the Environmental Planning and Assessment Act for reinstatement of the neighbours' land and buildings but also said (and this is disputed) that the remediation plan was prepared "as evidence in support of" the reinstatement claim.

120 His Honour noted (Ms Young accepts correctly) at [186] that the fifth respondent's report and remediation plan were made available in the litigation and that he had participated in the expert conclave which produced the "Exhibit A" document containing details of drainage works which formed part of the consent settlement.

121 His Honour considered that it was clear from the pleadings that Ms Young's case against the fifth respondent was based on "bad advice, given in the course of proceedings, in his capacity as an expert witness which ultimately resulted in the settlement which occurred". His Honour said that, put differently, Ms Young's assertion was that if such advice had not been given a different final result would have been reached ([189]). On that basis, his Honour concluded that witness immunity was available to the fifth respondent ([190]).

122 As far as the engineering services company was concerned, his Honour noted (at [191]) that a person vicariously liable for the tortious conduct of another is protected by any immunity available to the alleged tortfeasor (referring to Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268; Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295). His Honour considered that to the extent that the company was sued as being directly liable any such suit would require the adducing of evidence to support the allegation that the fifth respondent's evidence was in some way directly liable for the outcome and that this would offend the underlying rationale of witness immunity ([192]). No issue is taken with this conclusion.

123 Hence, his Honour concluded at [194] that witness immunity was a complete answer to all of the causes of action against the engineer respondents.

Dismissal of proceedings

124 His Honour dismissed the proceedings on the basis that the respective immunity defences provided a complete answer to the claims that had been made by Ms Young. It was therefore not necessary for his Honour to proceed to the hearing of the respective respondents' summary dismissal application.

Grounds of appeal

125 In the draft notice of appeal filed by Ms Young, a number of grounds of appeal are identified. Leaving aside those that relate to her application for leave to appeal from the interlocutory decisions made by his Honour (which have been dealt with in the Court's other reasons for judgment of today's date), the grounds on which Ms Young appeals from the summary dismissal of her proceedings are as follows (emphasis as per the draft notice of appeal):

As against the First, Second and Third Respondents

1. His Honour erred in dismissing the proceedings on a summary basis in circumstances that there was a real question of law to be determined that being the reach of the advocate's immunity in the circumstances of the Appellant's case.

2. His Honour erred in dismissing the proceedings against the First Second and Third Respondents ("the Lawyer Defendants") on the basis of the advocate's immunity in that:

(a) His Honour erred in holding that the scope advocate's immunity extends to failure to advise the joinder of a third party and/or failure to join a third party.

(b) His Honour erred in holding that failure to advise the taking of Proceedings in the correct jurisdiction or the taking proceedings or taking Proceedings in the wrong jurisdiction is within the scope of the advocate's immunity.

(c) Further or in the alternative His Honour erred in holding that the scope of the advocate's immunity extends to circumstances that by reason of the maters [sic] in (a) and or (b) or generally the proceedings are constituted such that no orders or relief whatever could be obtained in them.

3. Further, His Honour did not provide adequate reasons for holding that the conduct of the Lawyer Defendants was within the scope of the advocate's immunity in the circumstances of the case in that His Honour failed to have regard in his reasons to the submissions of the Plaintiff concerning:

(a) The reach of the advocate's immunity and the failure to join or advise the joinder of a third party; and,

(b) The reach of the advocate's immunity and the failure to advise the commencement of proceedings in the correct jurisdiction or the commencement of proceedings in the wrong jurisdiction.

(c) The reach of the advocate's immunity and the fact that the Plaintiff was not at any time from the purported commencement of proceedings able to obtain any orders in or by reason of the Proceedings.

4. His Honour erred in holding that the scope of the advocate's immunity extends to protect against conduct of the advocate which is fraudulent or mala fides.

5. His Honour erred in dismissing the Proceedings in circumstances that the pleadings were not closed.

6. Further or in the alternative His Honour erred in dismissing the proceedings in circumstances that the Plaintiff's proposed Amended Statement of Claim ("PASOC") made plain that the Plaintiff relied upon mala fides or would rely upon mala fides in a reply filed by the Appellant in response to a defense by the Lawyer Defendants claiming the advocate's immunity.

...

15. His Honour erred in dismissing the Proceedings generally in light of the scope of the Lawyer Defendants' conduct revealed by the Plaintiff's PASOC.

As against the Fourth & Fifth Respondents

1. His Honour erred in dismissing the Proceedings against the Fourth and Fifth Respondents on a summary basis in that there was a real issue of fact to be determined - that being what was the purpose or principal purpose for which the Fifth Defendant was asked to provide a remediation plan ('The Advice Work") and whether that purpose of the Advice Work or work leading to the Advice Work was principally in order to give evidence.

2. His Honour erred in dismissing the Proceedings:

(a) Prior to close of pleadings; and/or,

(b) Prior to the Appellant having the opportunity to raise any issues as to the real or controlling purpose of the Advice Work in reply to any defence of witness's immunity by the 4th and 5th Respondents and/or,

(c) In circumstances that the Appellants' submissions had expressly raised the issue of the purpose of the Advice Work in denying that the purpose or principal purpose of the Advice Work was in order for the Fifth Respondent to prepare to give evidence.

3. His Honour erred in that he did not apply the correct test to characterize the Advice Work undertaken by the Fourth and Fifth Respondents that being whether the principal purpose for which that work was undertaken was for the purpose of preparing to give evidence.

4. Further, or in the alternative, His Honour erred in not giving adequate reasons for his apparent conclusion that liability for the Advice Work was pre-empted by the witness' immunity in that:

(a) His Honour did not have regard in his reasons to the Appellant's submissions that the availability of the witness' immunity turned upon the purpose or principal purpose for which the Advice Work was undertaken; and/or,

(b) It is not possible to discern from His Honour's reasons whether, and if so how, the purpose or principal purpose of the Advice Work was identified.

5. In the alternative, insofar as His Honour's reasons, expressly or by implication, identified (from the Appellant's statement of claim) the purpose of the Advice Work as being in order to give evidence His Honour (for that purpose) misapprehended the Plaintiffs pleaded claim in that:

(a) The Appellant's statement of claim does not allege that the Fifth Defendant was retained to advise and give evidence - only to advise.

(b) The Appellant's statement of claim does not allege that the Fifth Defendant was asked to do a report for presentation in litigation.

(c) The Appellant's statement of claim does not allege that a report on remediation was for the purpose of evidence in support of a claim for reinstatement.

(d) Further, it cannot be logically inferred that the Advice Work was for the purpose of giving evidence in support of a claim for reinstatement in that remediation is antithetical to or alternative to reinstatement, and in the premises, could not be evidence in support of the Plaintiff's claim under section 124 Environmental Planning and Assessment Act.

(e) Further, the Appellant's statement of claim positively contends that the remediation plan sought of the Fifth Respondent was contemplated as an alternative to the orders sought or contemplated in the Proceedings.

(f) The Appellant's statement of claim does not allege that the Report of the Fifth Respondent was made available in the litigation.

(g) Further, it does not follow, that if a report had been made available in the litigation, that the purpose or principal purpose of the work leading to its creation and at the time of its creation had been to use it in litigation or for the expert to prepare to give evidence.

(h) The Appellant's statement of claim does not allege that the Fifth Respondent gave evidence as a consequence of the fact of doing a report nor does it allege any connection. between the report and the fact of the Fifth Respondent giving evidence which connection would be speculation,

(i) There is nothing in the Appellant's pleading which would suggest that the Advice Work was undertaken for the purpose, or principally for the purpose, of the Fifth Respondent subsequently giving evidence.

6. His Honour erred in that the Appellant was denied natural justice by reason that His Honour had regard to matters not contained in the Appellant's pleading (matters in 5(a) to (h) above) in holding that the Advice Work was covered by the witness' immunity.

7. Further or in the alternative, His Honour erred in denying the Appellant natural justice in that she was denied the opportunity to make submissions and adduce evidence as to the real or controlling purposes of the Advice Work and/or to respond to the matters in 5 (a) to (h).

126 Notices of contention were filed by various of the respondents.

127 The third respondent's notice of contention contends that the decision should also be affirmed on the following ground:

1. The learned trial judge failed to dismiss the proceedings pursuant to UCPR 13.4 on the basis that the Appellant's case, pleaded in the Further Amended Statement of Claim filed on 6 August 2013 [sic], was, by reason of the advocate's immunity from suit, so clearly untenable that it could not possibly succeed.

128 The engineer respondents' notice of contention, filed by leave in court on the hearing of the appeal, contends that the decision should also be affirmed on the following grounds:

1. The learned trial judge failed to characterise the content of the retainer between the fifth respondent and either or both the appellant and the first respondent as relating to the giving of advice with respect to, among other things, an appropriate remediation plan the subject of proceedings in the Land & Environment Court (proceedings no 40417 of 2003).

2. The learned trial judge failed to dismiss the proceedings pursuant to UCPR r 13.4 on the basis that the appellant's Further Amended Statement of Claim filed on 6 August 2013 [sic] did not disclose a reasonable cause of action by reason of the principles of witness immunity.

Consideration of Grounds of Appeal

129 I deal first with the grounds of appeal that raise common (or similar) issues to all of the respondents, namely: whether his Honour erred in dismissing the proceedings at the stage that he did (grounds 5 and 6 of the grounds relating to the lawyer respondents and ground 2 of the grounds relating to the engineer respondents) and whether his Honour erred in dismissing the proceedings on a summary basis where there was a real question of law (ground 1 of the grounds relating to the lawyer respondents) or a real issue of fact (ground 1 of the grounds relating to the engineer respondents) to be determined.

Summary dismissal of proceedings at the stage that his Honour did (Grounds 5 and 6 re lawyer respondents; ground 2 re engineer respondents)

130 His Honour was clearly conscious of the fact that pleadings had not closed at the time that the separate questions were being determined, since he noted that defences had not been filed to the latest version of the statement of claim. The fact that defences had not by then been filed to that pleading is not surprising since the amended statement of claim had itself only been filed on 5 August 2013 and, prior to the fixture for the hearing of the separate questions on 23 August 2013, yet a further pleading amendment had been foreshadowed.

131 There is no basis for complaint by Ms Young that his Honour proceeded on the basis that the existing immunity defences should be taken as what would be raised in answer to the 5 August 2013 statement of claim. There is no suggestion that there was any uncertainty as to the intention of the respondents to invoke advocate's or witness immunity in defence to the claims nor as to the content of that defence.

132 The real complaint by Ms Young is that his Honour proceeded to determine the separate questions before she had had an opportunity to file a reply and, hence, before the scope of the issues raised by the pleadings could be finally determined.

133 Counsel appearing for Ms Young, Mr Newell, emphasises that it could not have been apparent from the amended statement of claim of 5 August 2013 what matters Ms Young would have raised by way of reply to the defence of advocate's immunity.

134 Somewhat inconsistently with that submission, Mr Newell also points to various matters from which he maintains that Ms Young had made clear her contention that the lawyer respondents had acted mala fide and that this was a matter that might or would be raised by way of reply. In this regard, Mr Newell refers to previous pleadings (not before this Court) and to the proposed amended pleading (in respect of which leave was not granted by his Honour), which he submits raised the issue of mala fides; to statements made by him at the directions hearing on 2 August 2013; and to the letter dated 20 August 2013 from Ms Young's solicitors in which reference to mala fides was made (annexed to the affidavit of Leonardo Carlo Muriniti sworn 22 August 2013). He also places weight on the fact that, in the course of oral submissions on 23 August 2013, he stated Ms Young's position that an allegation of mala fides would be raised by way of reply. Mr Newell emphasises that the content "and purport" of the latest draft statement of claim that Ms Young had unsuccessfully sought to file showed that the scope of the conduct complained of extended to mala fides.

135 Insofar as Ms Young appears to submit that the question of immunity was to be determined by reference to the proposed amended statement of claim "or other relevant pleading", that proposition is untenable. What his Honour was considering was whether the defence of advocate's or witness immunity was a complete answer to the claims made on the pleadings as they then stood (treating the filed defences as a defence to the amended statement of claim). That issue is not to be determined by reference to any earlier (superseded) version of the statement of claim, nor to any other statement of claim that Ms Young might have wished to file.

136 The relevant question for the purposes of this ground of appeal is whether his Honour erred in determining the applicability of the immunity defence in advance of the filing by Ms Young of a reply. Reliance was placed by Ms Young on the dicta of Basten JA in Donnellan v Woodland at [262] to the effect that, where a defendant seeks to rely upon advocate's immunity, the principle of finality will often be most efficiently upheld by an application for summary judgment "once the pleadings are closed", his Honour there citing Bott v Carter [2012] NSWCA 89 as an example.

137 In Donnellan, at [260], Basten JA, addressing a possible contention that the application of advocate's immunity could not be addressed until the precise scope of the dispute and the manner of its resolution had been determined, said:

However, the availability of the defence cannot rest upon how the parties run the proceedings. If the defence is available, that must be ascertained from the pleadings and the potential scope of the proceedings so revealed. It is not to be assessed and determined only after the hearing of the merits, with its potential to diminish confidence in the proper administration of justice. (my emphasis)

138 The need (or desirability) for pleadings to have closed before any determination of the applicability of an immunity defence was thus based on the necessity to identify the potential scope of the proceedings. In the present case, the fact that a reply had not yet been filed would be of relevance only if it might have altered the potential scope of the proceedings in such a way as to lead to or permit the conclusion that the immunity was not available. The position as between the lawyer respondents and the engineer respondents differs somewhat in this regard.

139 As to the lawyer respondents, unlike a case where it could not be known in advance what issues would be joined by way of reply to an advocate's immunity defence, here Mr Newell had made clear, at least by 26 August 2013, that any reply would put in issue the question whether the conduct of the lawyer respondents was mala fide. I say "at least" by that date since the position of Ms Young as to whether there would be a reply at all (let alone one alleging mala fides or fraud) seems not to have been consistent at the various directions hearings leading up to the fixing of the matter for the hearing of the separate questions. However, by the time of the application further to amend the pleading on 23 August 2013, which was heard on 26 August 2013, the position being adopted was that an allegation of mala fides was likely to be raised by way of reply to any defence relying on advocate's immunity and would have meant that the defence was not available.

140 His Honour proceeded, in obiter dicta, to consider what the answer to the separate questions would have been had the allegations of breach of fiduciary duty been pleaded as proposed in the further amended statement of claim that was the subject of the leave application. His Honour did not in my view err, for the reasons I set out later, in concluding that the answers given would have been the same had there been an allegation of mala fides. Therefore, assuming that the ambit of the foreshadowed reply went no further than the allegations of mala fides raised in the proposed further amended statement of claim, and it was not suggested that this was not the case, nothing turns on any error on the part of his Honour in dealing with the separate questions before the close of pleadings.

141 As to the engineer respondents, it was not at any time suggested that mala fides would be raised by way of reply to their witness immunity defence. On the present appeal it was suggested that what might have been raised in reply was a factual dispute as to the principal purpose for which the fifth respondent was retained or for which his advice would be used.

142 There are two answers to Ms Young's complaint as to the stage in the proceedings at which the separate questions were determined.

143 First, and this is relevant only to the position of the lawyer respondents, it is submitted (correctly in my opinion) that Ms Young could not have raised, by way of reply, the allegation that their conduct was mala fide because such an allegation would have to have formed part of her case in chief.

144 Mr Newell argues that Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 is an example of a case where it was accepted that it would have been proper to file a reply pleading fraud (there, in answer to the limitation defence relied on by the defendant). However, in that case, there was an allegation of breach of trust to which the respective defendants had pleaded by separate defences that the action was statute-barred. The relevant limitation defence was subject to a proviso excluding an action for fraudulent breach of trust. Although a reply was filed to the defences filed by two of the defendants, alleging a fraudulent beach of trust by the bank defendant, no such reply was filed to the bank's defence. There being no pleading of fraud on the part of the bank, its limitation defence was upheld. This does not support a contention that, if Ms Young's claim against the lawyer respondents, properly understood, was for fraud or knowing breach of fiduciary duty, this claim could have been raised by way of an allegation of mala fides in her reply.

145 In oral submissions, in response to the suggestion that Ms Young's complaint as to fraud was part of her cause of action (and could not properly have been pleaded in any reply), Mr Newell put it thus:

That's how the proposed amended statement of claim was drafted because that was appropriate bearing in mind it was a statement of claim, but had it been the case that a reply was to be filed to the defence, I submit that it would have been open to say no, you cannot rely on the immunity because this is what we say about the conduct. We say that it would otherwise have been a plea in anticipation of a defence as the conventional analysis.

So it's unsurprising that it can be put in the reply. There was agitation earlier this case about whether the mala fides allegation should have been in the statement of claim as I originally recorded it, and whether it's properly a matter for reply. So the point I make there is how it's pleaded in the reply may be a matter for consideration, but the point is that it is open to the plaintiff to raise that matter in her reply, and it's never been conceded that the conduct was bona fide. (my emphasis)

Generally I would submit that it is arguably not relevant to raise it until it is alleged that - I mean it doesn't become absolutely necessary to allege it until a reliance on a particular defence like the advocate's immunity or the limitation period is announced. So it's in that way that we say that the case we have made plain in a number of ways, that it is and will be our contention at the latest at the time of filing the reply, that the conduct is mala fide to defend ourselves from this allegation. (AT 17.2-23)

146 It seems clear from what was said by Mr Newell at the 2 August 2013 directions hearing before the primary judge that Ms Young was seeking to raise an allegation of mala fides in such a way as not to bear the onus of establishing mala fides - by asserting that it was for the lawyer respondents, if they wished to rely upon advocate's immunity, to establish that they had acted bona fide. In effect, although Mr Newell disavowed this (AT 11.38), his submission assumes that it was for the lawyer respondents to negative mala fides. However, if what Ms Young in substance wished to contend was that the lawyer respondents had behaved fraudulently, or that their conduct was akin to fraud, then the onus of establishing fraud would be borne by her. There is no authority to which this Court was taken to suggest that, in order to rely upon a defence of advocate's immunity, the lawyer respondents would have been required to plead that they had acted in good faith or that they had not acted mala fide. Mr Newell conceded that a conscious decision had been made not to include such an allegation in the amended statement of claim (AT 13.28-32).

147 As a matter of pleading, it is recognised that new claims or causes of action should not be introduced in a reply and that a reply should not contradict or be inconsistent with the plaintiff's claim (Justice Blair et al, Bullen & Leake & Jacob's Precedents of Pleadings, (17th ed 2012, Sweet & Maxwell), Vol 1 at 29; Sir Jack Jacob and Iain Goldrein, Pleadings: Principles and Practice, (1990, Sweet & Maxwell) at 162-3; the Hon Peter Young and Hugh Selby, Rose's Pleadings Without Tears in Australia, (1997, Federation Press) at 102).

148 By way of example of a contradictory pleading or departure from the claim that would impermissibly be included in a reply under the then rules in the UK, Jacob and Goldrein refer to Kingston v Corker (1892) 29 LR Ir 364 for the proposition that, if a statement of claim alleges merely a negligent breach of trust, the reply must not assert that such a breach of trust was fraudulent. In Kingston v Corker, a solicitor was sued for breach of trust and, in the alternative, damages were claimed for loss sustained by negligence, misrepresentation and deceit, in relation to the alleged improper investment of funds. The plaintiff sought to raise, in reply to a limitations defence pleaded by the solicitor, an allegation that the breach of trust was fraudulent. The Vice Chancellor, the Hon. Hedges E Chatterton, held that the pleading was bad, either restating a case already made or making a new case.

149 The rationale for the pleading rule, as explained by Young and Selby, is that to insert new matters by way of reply would not assist clarification or definition of the issues in the proceedings and "would inevitably lead to a proliferation of documentation which would not read logically, would delay the trial of the action, and add considerably to its expense".

150 In my opinion, Ms Young could not have set up an allegation of fraud for the first time in the reply. It would have been necessary (as Ms Young unsuccessfully sought to do) to raise such a claim by way of further amendment to the statement of claim. A reply simply alleging mala fides in the conduct or omissions of which she complained, even assuming it would have been permissible from a pleading point of view, would not (for the reasons I address in relation to ground 4 of the appeal in relation to the lawyer respondents) have been sufficient to preclude reliance by the lawyer respondents on advocate's immunity. Therefore, nothing turned on the fact that the separate questions relating to advocate's immunity were heard before the foreshadowed reply was filed by Ms Young.

151 Second, and this applies to all the respondents, it is clear that a forensic decision was made by Ms Young, through her Counsel, not to oppose an order for the matter to proceed on 23 August by way of the determination in advance of the separate questions (whether on the basis that pleadings had not closed or otherwise). The only initial opposition was as to the date for the hearing and that was on the basis that Ms Young might wish to file further evidence in relation to the strike-out motions, not further evidence to be relied on for the hearing of the separate questions.

152 Mr Newell accepted that he had not contended before the primary judge that the pleadings should have been closed (including a reply filed) before the separate questions were determined (AT 18.49), though a reference to Basten JA's judgment in Donnellan was included in the written submissions.

153 Although Mr Newell sought to qualify the consent that he accepted had been given by Ms Young to the orders made for the hearing of the separate questions, by insisting that what had been agreed was that "the question could be dealt with according to law" (see AT 17.43), the fact is that Ms Young agreed on 2 August 2013 to the determination of the separate questions in advance of the closure of the pleadings and without raising as an objection to that course of action the fact that the pleadings had not closed. It was not suggested at that stage that any further matter would be raised in reply other than that which had been identified as the allegation of mala fides that was said to have been adequately pleaded in the proposed further amended statement of claim.

154 With respect to the primary judge, the preferable course in my opinion would have been for the hearing of the separate questions not to have proceeded until the pleadings had closed. There could then have been no argument that the scope of the issues in the proceedings was that which was raised by the pleadings as they were to be properly understood.

155 However, the matter having proceeded by consent on the course it did, Ms Young should be bound by her forensic decision in that respect. Unsatisfactory as I accept it will in most cases be for the issue of immunity to be determined before pleadings have closed, the parties here agreed to precisely such a course. The fact that Ms Young does not like the outcome of that course is not a basis for holding that his Honour erred in proceeding with the parties' agreement to determine the separate questions at the stage of the matter at which he did.

156 In reaching this conclusion, I do not ignore the admonition by Kirby J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 at [137]-[138]. There, his Honour, emphasising the need for restraint in determining summary judgment applications where the law is uncertain "and especially where it is in a state of development", noted that the court owes its duty to the law. Notwithstanding that the parties there had consented to the summary judgment procedure adopted, his Honour considered that the matter should not have been determined summarily.

157 However, his Honour's comments must be balanced against the need to apply the case management principles mandated under the Civil Procedure Act 2005 (NSW). If it is consistent with those principles for a judge to adopt, with the consent of the parties, the course that his Honour here adopted, it is not for the party who is unhappy with the result of that course later to contend that the judge should not have so acted. Moreover, the relevant duty to the law to which Kirby J adverted is complied with in a case such as this where the hearing of separate questions involves a final determination of particular disputed issues of law.

158 For completeness, I further note that any error on the part of his Honour in having proceeded with that application at the stage he did would not now lead to the answers to those questions being given in favour of Ms Young, as sought in the draft notice of appeal. All that would have followed from such a conclusion would be that the questions should have been answered, in effect, that it was inappropriate for them to be determined at that stage.

159 Grounds 5 and 6 of the grounds of appeal relating to the lawyer respondents, and ground of the grounds of appeal relating to the engineer respondents, are not made out. Nor is ground 15 of the grounds of appeal relating to the lawyer respondents, insofar as it appears to encompass a complaint as to the dismissal of the claims against them before the filing of a reply alleging conduct of the kind raised in the proposed amended statement of claim for which leave was not granted.

Summary dismissal of proceedings where real question of law/fact to be determined (ground 1 of the grounds of appeal relating to each of the sets of respondents)

Ground 1 of grounds of appeal re lawyer respondents - summary dismissal where real question of law to be determined

160 The contention underlying ground 1 of the grounds of appeal relating to the lawyer respondents misconceives the nature of the application that his Honour was addressing when the proceedings were dismissed.

161 Ms Young contends that his Honour should not have summarily dismissed the proceedings (and should not thereby have risked stifling the development of the law) because there was an "unsettled" question of law (namely, the reach of the immunity) in an area where the development of the law is still embryonic, citing Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373 and referring to what was said by Kirby J in Woolcock (supra) at 566 [138]:

Where the law is uncertain, and especially where it is in a state of development, it is inappropriate to put a plaintiff out of court if there is a real issue to be tried. The proper approach in such cases is one of restraint. Only in a clear case will answers be given, and orders made, that have the effect of denying a party its ordinary civil right to a trial. This is especially so where, as in many actions for negligence, the factual details may help to throw light on the existence of a legal cause of action - specifically a duty of care owed by the defendant to the plaintiff. [Footnote omitted]

162 Ms Young submits that the questions whether immunity is available in the absence of good faith and whether it is available as a defence to statutory causes of action are not settled questions of law. Reference is made to the caution that is customarily displayed on summary dismissal applications.

163 It is not disputed that the test generally applied on applications for summary disposal of part or all of proceedings is that set out in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-9, and that this requires that there be a very clear case before proceedings will be summarily dismissed (see also Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91). However, insofar as Ms Young contends that the matters raised have a "more compelling significance" in the context of a summary disposal on the pleadings (citing Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99), the lawyer respondents note that immunity from suit is not a matter of discretion or weight; it is a matter of law.

164 The fact that the law may be in an unsettled state as to the reach of the immunity, in either of the respects contended by Ms Young, is not to the point. His Honour was not ruling on a summary judgment application. The fact that a separate question raises for determination a question of law that may be regarded as unsettled is not a basis for concluding that it should not be determined in advance of a hearing on the merits. If it is a question of law that may be answered irrespective of whatever factual findings might ultimately be made, and it is a question that it is considered would be appropriate to be determined separately and in advance of other issues in the proceedings pursuant to rule 28.2, what then follows is a final determination on that question of law.

165 Therefore, the fact that determination of the reach of advocate's immunity might involve consideration of some unsettled questions of law does not mean that his Honour erred in adopting that course. Ground 1 of the grounds of appeal relating to the lawyer respondents is not made out.

Statutory Causes of Action

166 For completeness, I note that in my opinion his Honour did not err in concluding that the immunity was applicable as a defence to the statutory causes of action pleaded (an issue of law that Ms Young contends is unsettled). While there is no separate ground of appeal that deals with this issue, submissions were made for Ms Young to the effect that it was a further matter militating against summary disposal of the proceedings (paras [50] - [52] submissions) and I address those submissions below.

167 Mr Newell argued that his Honour erred in finding (or implicitly finding) that the advocate's immunity "unarguably" defeats or responded to the statutory causes of action raised by Ms Young, having regard to what was said in Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 at [96] to [98]:

The position when a claim against an advocate is framed, not in negligence, but as a breach of the Fair Trading Act of the state or of the Trade Practices Act 1974 (Cth), does not appear to have been squarely considered in Australia. In Boland v Yates Property Corporation Pty Ltd [1999] HCA 64, the High Court concluded that it was unnecessary to consider the immunity issue in the context of a claim under the Trade Practices Act. In Gray v Morris [2004] 2 Qd R 118 [53], the question again did not have to be determined but was regarded as not settled.

The questions of how the public policy considerations which ground the immunity are to be reconciled with the operation of s 10 of the Fair Trading Act, and the scope of any immunity which limits the operation of the Fair Trading Act as it applies to legal services, therefore still wait determination.

The application of the Fair Trading Act is not, in our view, a matter appropriately to be determined on a pleading summons. It involves a novel question of law that is properly left to be determined at trial. It is, moreover, a matter which, if it arises on the facts as found, is properly to be determined in light of the findings as to the precise nature of any misleading and deceptive conduct engaged in by the respondent.

168 Both Alpine Holdings and Gray v Morris [2004] QCA 5; [2004] 2 Qd R 118, which was cited in Alpine, were decided before D'Orta. At [85] in D'Orta, it is clear that the immunity is an immunity "from suit", not from particular causes of action. The immunity applies whether the suit is in "negligence or otherwise".

169 In Boland v Yates Property Corporation Pty Ltd at [365], Gaudron J considered, in obiter, the application of the immunity in defence of a claim for breach of the Trade Practices Act. Her Honour said, from [104] to [107]:

The relationship between the law of negligence and the combined operation of ss 52 and 82 of the Act is brought into question in this case. It is not uncommon for claims under s 52 to be joined with claims in negligence. And it is not uncommon, it seems, for such matters to be determined on the basis that the outcome of the negligence claim will determine the outcome of the s 52 claim. That seems to have been the premise upon which the present litigation was conducted. The premise is correct in this case but only in the sense that, given the facts, if the conduct of the appellants was not negligent then it was neither misleading nor deceptive and, conversely, if that conduct was negligent, it was also misleading and deceptive.

Had it been concluded that the conduct of the appellants was negligent and, also, misleading or deceptive, it would then have been necessary to consider whether the conduct of the appellants was conduct in trade or commerce to which s 52 of the Act applied. And if s 52 did apply it would, in my view, have operated to exclude the general law of negligence. Liability in damages for conduct in contravention of s 52 depends simply on contravention and loss. It is not confined by those considerations that determine liability in negligence. In particular, liability for contravention of s 52 does not depend on proximity or the foreseeability of loss.

Moreover, the damages recoverable for breach of s 52 of the Act are not necessarily co-extensive with those recoverable in negligence. In particular, damages are confined to actual loss and, thus, do not include punitive damages. Further, it is possible that they are not limited either by the foreseeability of consequential damage or remoteness. And significantly for present purposes, if s 52 had applied in this case, there would be no occasion to consider whether the appellants were "immune from suit". That question could only arise if it were found that the appellants were negligent but that s 52 did not apply to their conduct.

Had the question of "immunity" arisen, I would have granted leave to re-open Giannarelli v Wraith. In my view, proximity - more precisely, the nature of the relationship mandated by that notion - may exclude the existence of a duty of care on the part of legal practitioners with respect to work in court. Whatever the position, it is one that derives from the law of tort, not notions of "immunity from suit". However, these questions do not arise because the conduct of the appellants was neither negligent nor misleading or deceptive for the purposes of s 52 of the Act. [Footnotes omitted]

170 Her Honour's conclusion that the immunity would not apply to a claim for breach of s 52 of the Act seems to have been predicated on an assumption that the immunity was one referable to a particular cause of action and not immunity from suit. With respect, such an assumption is not correct.

171 Callinan J, who did not appear to regard the operation of the immunity as unsettled in this area, said (from [364]):

The respondent's case against the lawyers purported to be not only in negligence but also in deceptive conduct and breach of the Fair Trading Act. Subsequently a further claim for breach of fiduciary duty was somewhat unconvincingly articulated. All were rejected by Branson J. The last three as I have earlier suggested probably owed their assertion in this case to a perception that the immunity might only apply to a claim in negligence. Such a perception is not well founded. (my emphasis)

In MacRae v Stevens, Beazley JA, with whom Meagher JA and Priestley JA agreed, said that collateral challenges designed to circumvent Giannarelli must fail. Accordingly in this case had any of the causes of action other than negligence in fact been made out against the appellant barrister they too would not have succeeded because the immunity as a matter of public policy would extend to him, and a proper construction of the two statutes involved dictates no different a result.

Because the solicitors were not negligent or in breach of the Trade Practices Act (assuming it applied to them) or the Fair Trading Act it is unnecessary to consider whether they too were entitled to immunity in the circumstances; or the other point argued by the solicitor appellants, that in terms they limited their obligations under their retainer. [Footnotes omitted]

172 The lawyer respondents submit (and I agree) that in the absence of unmistakeable and unambiguous language it must be presumed that the legislature did not intend to exclude the operation of a fundamental principle of law such as common law immunity (referring to Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at 591-592 [43]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384 [78] and Coco v The Queen [1994] HCA 41; (1994) 179 CLR 427 at 437).

173 I agree that there is nothing in the statutory provisions on which Ms Young relies that evinces an intention to abrogate advocate's immunity from suit at common law. Such a conclusion is consistent with the analysis of Callinan J in Boland v Yates at [363]-[365] and the decision of Bell J in Goddard Elliott (a firm) v Fritsch [2012] VSC 87 at [834]-[838]. In the latter case, s 9 of the Fair Trading Act 1985 (Vic) was held not to abrogate advocate's immunity.

174 There is no reason in principle why advocate's immunity from suit should not apply where the proceedings include statutory causes of action of the kind here raised. The conduct is the same as that relied upon for the claims in negligence and the consequence in terms of the finality of proceedings if the immunity does not apply is the same.

175 Witness immunity from suit has been specifically held to extend to claims under the Trade Practices Act (in Commonwealth v Griffiths at [121]). Having regard to the importance of consistency between the immunities, I agree with the respondents' submission that there is no reason why the same approach would not be adopted with respect to the advocate's immunity from suit.

176 Had it been necessary for the determination of this appeal, I would have concluded that advocate's (and witness) immunity is available as a defence to the statutory causes of action pleaded against the respective respondents.

Ground 1 of grounds of appeal re engineer respondents - summary dismissal where real question of fact to be determined

177 As to the applicability of witness immunity, Ms Young submits that the question whether work performed by an expert prior or collateral to the giving of evidence is covered by witness immunity is to be determined by the real, principal or controlling purpose for which the said work was undertaken and that this was a question of fact that could not be determined on the pleadings. Ms Young denies that the purpose or principal purpose for which the advice work was undertaken was in order for Dr Perrens to give evidence and says his Honour erred in characterising the retainer in that regard.

178 Mr Newell points to the submissions he made to his Honour to the effect that there was a need to establish the purpose of the advice work done by Mr Perrens and that Ms Young disputed that the purpose was connected to the subject matter of the proceedings. It is submitted that Ms Young made plain that she had a case to raise by way of reply in this regard and that she put in issue whether the purpose or principal purpose of the advice work was for Dr Perrens to give evidence.

179 Reliance is placed for Ms Young on what was said in Symonds v Vass [2009] NSWCA 139; (2009) ALR 689 (a case where, unlike the present, the first instance proceedings had not been summarily dismissed) by Giles JA (with whom Beazley JA, as her Honour then was, agreed) at [39], [40] and [42]:

...There may be questions of pre-commencement work, of failure to carry out decisions, of advice as to prospects and the need for judicial determination. On ascertained facts, questions of that kind arising in the present could be decided. But there should be ascertained facts.

It may not be easy to see a clear line between work done prior to the commencement of proceedings, such as advice on prospects of success or on appropriate defendants and causes of action, and the conduct of the proceedings. It may not be easy, more particularly, to see a clear line between work done in the course of proceedings and advice given in relation to compromise. More widely, work done leading to decisions as to the conduct of the proceedings is likely to govern whether the client is advised about preparedness for a hearing or about prospects as the hearing looms, and what advice is given. But there can not be excluded negligent failure in these respects which does not satisfy the statement(s) of the test. Deciding the application of the immunity requires a clear understanding of what occurred and clear findings of the respect or respects in which there was negligence on the part of the lawyer. (my emphasis)

...

Courts are ordinarily, and properly, astute to come to decisions upon facts as found, and not upon assumed facts. The old procedure of demurrer operated, not always satisfactorily, on precisely pleaded allegations, but a notional demurrer cannot resolve the appeal. On a notional strike-out the high standard of unarguability for which General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125, [1965] ALR 636; [1964] HCA 69 is conventionally cited is not achieved. As Ipp JA has pointed out, with reference to Keefe, fine distinctions should not be drawn and the immunity cannot be circumvented by the construction of allegations of damage.

180 In Donnellan, Beazley JA addressed a preliminary question as to whether the issue of advocates' immunity should be determined prior to any consideration of the other issues raised on that appeal. Her Honour (at [6]-[7]) contrasted the argument for determining a claim for negligence against a legal practitioner by reference, in the first place at least, to the question of immunity (which her Honour suggested was an approach consistent with the principle of finality underlying the immunity) with the argument that it may not be possible to determine whether the immunity attaches unless the negligent conduct is identified. In the course of her Honour's discussion of those two arguments, her Honour confirmed that the immunity is an immunity from suit and hence that, if the immunity applies, then the question whether there is negligence becomes moot ([6]).

181 Her Honour nevertheless also recognised (at [7]) that, while the pleadings are the obvious starting point, the pleadings might not sufficiently enable the identification of the negligent conduct to be made, referring to Alpine Holdings as an illustration of such a case. Her Honour went on at [7] to say:

... If the correct position is that the immunity should be determined prior to the determination of the question of negligence, an immunity claim ought properly be able to be dealt with on the pleadings by way of a strike out application pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 13.4 or r 14.28. This was the view of this Court in Bott v Carter [2012] NSWCA 89, especially at [11]. Bott v Carter itself involved an application to strike out the statement of claim. As the result in Alpine Holdings demonstrated, that may be a contestable result.

182 At [9], her Honour said:

For myself, I am not satisfied that there is a single correct approach. Rather, it will depend upon the circumstances of the particular case. If the pleadings on their face alleged negligence in the conduct of litigation falling into one of the three categories of consequence that flow from a practitioner's negligence: see D'Orta-Ekenaike at [70], discussed below at [166], it may be possible that the immunity question can be determined on the basis of the conduct alleged in the pleadings. There is a question, in any event, as to the extent of the reach of the immunity. As Basten JA, at [11], observed in Bott v Carter, "the immunity does not extend to all activities undertaken by legal practitioners, even in relation to disputes which may give rise to litigation". However, not every case will be so clear cut. (my emphasis)

183 What her Honour was there raising was the possibility that the pleadings might not sufficiently enable the identification of the alleged negligent conduct for the purposes of determining whether such conduct fell within the immunity. Her Honour did not suggest that it could never be appropriate to determine the matter on the pleadings in advance of a hearing of the factual matters. Nor, as I read her Honour's reasons, does her Honour suggest that questions of immunity could only properly be dealt with by way of a strike out application (as opposed, say, to a hearing of separate questions under rule 28.2 as was the case here).

184 Basten JA went further, in Donnellan at [259], and considered that it was inconsistent with the principle of finality for the Court not to determine the question of immunity in advance of the factual merits of the case (an approach that Barrett JA considered was arguably the case).

185 If, as here, the conduct of which complaint was made could adequately be identified on the pleadings, there was no error in determining the question of witness immunity in advance of the making of factual findings as to any dispute in relation to that conduct. The impugned conduct was in my opinion able to be adequately identified from Ms Young's pleading. The fact that Ms Young might, in a reply, have expressly put in issue the purpose for which the fifth respondent was retained does not lead to a different result. The conclusion that witness immunity was available to the engineer respondents was correct having regard to the conduct pleaded by Ms Young for the reasons set out below (from [235]-[277]).

186 Ground 1 of the grounds of appeal in relation to the engineer respondents is not made out.

Grounds 2, 4 and 15 of the appeal in relation to lawyer respondents - scope of advocate's immunity

187 Grounds 2, 4 and 15 of the appeal in relation to the lawyer respondents challenge his Honour's findings as to the reach of advocate's immunity. Ms Young contends that his Honour did not apply the correct test as to the scope of the immunity.

188 The advocate's immunity from suit extends to advice, or work, done out of court which leads to a decision affecting the conduct of a case in court (Giannarelli v Wraith at 560; D'Orta at [91]; Donnellan at [172]). In Keefe v Marks at 719-20, Gleeson CJ adopted the language of McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187 that pre-trial work "so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause (was) to be conducted when it (came) to a hearing". Both tests were referred to by Giles JA in Symonds v Vass at [14].

189 In D'Orta, the plurality did not see any significant difference between the test as expressed in Giannarelli and the formulation in Keefe v Marks as to "work intimately connected with" work in court ([86]). Their Honours emphasised that it is necessary to identify the nature of the complaint made by a disappointed client seeking to sue the advocate ([65]).

190 The kind of matters that, in Keefe v Marks, Gleeson CJ contemplated would fall within the immunity from suit (and that would ordinarily be under active consideration, as required, not only prior to the commencement of the hearing but also throughout the hearing up until the conclusion of the proceedings) were (at 718):

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

191 Turning then to the complaints made as to the primary judge's application of the test for immunity in the present case, there are three grounds raised.

192 Ground 2 encompasses a number of issues: namely, whether his Honour erred in holding that the scope of the immunity extends to: a failure to advise the joinder of a party to the proceedings; a failure to advise as to the proper jurisdiction in which proceedings are to be brought; and conduct that leads to proceedings being constituted such that "no orders or relief whatever could be obtained in them". (Inherent in grounds 2(a) and (b) of appeal is the assumption that the conduct of which complaint is made is properly to be characterised as a failure to do those things.)

193 Ground 4 goes to whether the immunity extends to protect against conduct of the advocate that is fraudulent or mala fide.

194 Ground 15 is a general ground alleging error in the dismissal of the proceedings generally in the light of the "scope" of the lawyer respondents' conduct revealed by the proposed amended statement of claim.

Ground 15 - alleged failure to consider conduct in proposed amended statement of claim

195 Ground 15 may readily be disposed of, having regard to the fact that the allegations made in the proposed amended statement of claim were not relevant when considering whether the conduct of which complaint was made fell within the scope of advocate's immunity. The relevant pleading for consideration was the 5 August 2013 amended statement of claim. There was no error in his Honour not considering the unpleaded allegations of breach of fiduciary duty when considering whether the alleged negligent and misleading or deceptive conduct fell within the immunity. (In obiter dicta his Honour did turn his mind to precisely that conduct in any event.)

196 Ground 15 is not made out.

Ground 2 - alleged failure properly to advise re joinder/jurisdiction issues and to plead "real and enforceable obligations"

197 Ms Young submits that the conduct the subject of her claim involved "a large conflagration of circumstances" that have either been held or must be seen as matters near the "outer limits of the immunity". She contends that the conduct complained of does not fall within the advocate's immunity from suit because it involves failure to advise as to the joinder of the Council; failure to advise as to the proper jurisdiction for the claim; and, in effect, the institution of proceedings that were not capable of providing the remedy sought by her.

198 The lawyer respondents' response to this is that the advocate's immunity defence is a complete answer to the claim as pleaded in the amended statement of claim. It is submitted that, properly understood, Ms Young's complaint is about the choice of remedy not a complaint as to the non-joinder of the Council (which it is submitted is relevant only to whether a particular remedy could have been obtained) nor as to the jurisdiction in which proceedings were commenced. The lawyer respondents maintain that, in substance, Ms Young's complaint is that she obtained the wrong final result in the earlier proceedings because the settlement was "wholly inadequate". To the extent that Ms Young's complaint is that she incurred costs that were wasted because the settlement was wholly inadequate, the lawyer respondents point out that such a complaint falls squarely within the principle articulated in Attard v James.

Joinder/jurisdiction issues

199 Ms Young relies on Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198, in support of the contention that failure to advise a client to commence proceedings against the Council lies outside the scope of the immunity and MacRae v Stevens (1996) Aust Torts Reports 81-405, for the proposition that failure to advise or to bring the proceedings in the "correct" jurisdiction falls outside the immunity. Ms Young calls in aid the observation by Giles JA in Symonds v Vass (at [30]) to the effect that the plurality in D'Orta did not suggest that cases which had been decided according to the boundaries for the operation of the immunity laid down in Giannarelli had been incorrectly decided.

200 Ms Young submits that both Saif Ali and MacRae involved circumstances in which proceedings which responded to the client's predicament were either not taken or not properly constituted. She characterises her complaint against the lawyer respondents as being of that same kind.

201 Ms Young points to the comment by Beazley JA in Symonds v Vass at [2] that:

... the content and extent of the principle of advocate's immunity and its application in a particular case is both problematic and troubling. This is particularly so if the immunity extends to the case of an omission, such as a failure to prepare the evidence necessary for trial, or the failure to give consideration to the correct parties to a claim. (my emphasis)

202 It is clear, however, from what her Honour goes on to say at [5] that the particularly troubling or problematic aspect of the extent and application of the immunity that her Honour was there considering was where the complaint was as to an omission that occurs because the legal practitioner has failed to turn his or her mind to the particular matter about which complaint is made. That must be the case, since the example given by her Honour of failure to prepare evidence necessary for trial is precisely the kind of conduct identified by Gleeson CJ in Keefe v Marks as conduct that would ordinarily fall within "pre-trial work" of a kind that one would expect to be within the immunity.

203 The lawyer respondents submit that Saif Ali (to the extent to which it still reflects the law in this state after D'Orta) is distinguishable from the present case because in Saif Ali the failure to advise as to the joinder of the particular party before the relevant limitation period expired caused the loss of a potentially valuable cause of action against that party. It is submitted that a claim for that loss does not cause a controversy once resolved to be re-litigated because, by definition, the claim against the party who was not joined has not been litigated.

204 Similarly, it is submitted that MacRae is distinguishable in that, there, the incorrect advice had the result that the claim was not litigated in the correct jurisdiction and could not thereafter be brought in that jurisdiction. Hence, the finality principle was not offended because there was no re-litigation of a controversy once resolved.

205 By contrast, it is submitted that in the present case neither the non-joinder of the Council nor the commencement of the proceedings in the Land and Environment Court (rather than, say, the Supreme Court) is what has led to the loss and damage of which Ms Young complains. Rather, it is the fact that she agreed to a compromise of the proceedings on terms that she now contends were wholly inadequate to remedy the particular problem caused by the building works and because of that compromise she cannot now seek reinstatement of the neighbouring land. The lawyer respondents point to the allegation of loss, pleaded (in [104] - [108]) as demonstrating that the complaint is not as to the loss of a valuable cause of action; rather it is a complaint complex as to the value of the settlement ultimately achieved.

206 In passing, I note that there is no allegation by Ms Young that the settlement had been entered into because of any concern or realisation on the part of Ms Young that no other remedy could have been obtained in the Land and Environment Court proceedings had the hearing proceeded in that Court. It is, rather, a case where Ms Young maintains that she should have been advised not to agree to such a remedy.

Failure to plead real and enforceable obligations

207 As to the complaint arising out of a failure to plead any real or enforceable obligations, this is in essence a contention that the case was doomed to failure. It is contended that the lawyer respondents were responsible for a pleading, created at the outset of their respective retainers, that "failed to announce reliance upon any real or enforceable obligations". This seemingly invokes reasoning of the kind in Alpine Holdings, where Steytler P and Newnes AJA said (at [91] and [92]):

It is not difficult to envisage situations where the manner in which a case is pleaded would affect the way that the case was conducted in court, so that any claim that an advocate was negligent in failing to plead the case differently would involve re-opening the earlier decision in an endeavour to prove that the result would have been different.

Where, however, it is alleged that the advocate advised the client to pursue, and pleaded on the client's behalf, a cause of action or a head of damage which as a matter of law was doomed to failure - and which duly failed - it is not so easy to see that a claim for negligence against the advocate involves the re-opening of the original controversy or touches upon matters which fall within the principles identified by the High Court as underlying the immunity. (my emphasis)

208 It is submitted for the lawyer respondents that Ms Young's complaint as to the settlement is akin to the complaint considered in Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454. There, Tobias JA, (with whom Giles JA agreed), said at [120]:

... acceptance of that settlement was dependent upon firstly, the advice given by the barrister as to the likelihood of any claim for common law damages exceeding the thresholds and, secondly, the effect that acceptance of permanent loss compensation would have upon his common law rights, such as they were. It is difficult to imagine a stronger case than the present where the advice given by the barrister led to the appellant's decision as to the conduct of his case before the Compensation Court or which was more intimately connected with the course of that case including its settlement.

209 In her written submissions, by way of "overview" (criticised by the respondents as raising matters going beyond those in fact pleaded) Ms Young makes reference to the drainage issue having been analysed on the basis that the neighbours were required to accommodate the "apparent water table impacts of a 20cm structure which purportedly functions as a retaining structure", by reference to the fact that a consent was given for a retaining wall, whereas the real issue was the drainage from Ms Young's land in circumstances where there had been excavation to a deeper level than that assumed in the consent. Ms Young contends that the "notional" water table analysis "is at the centre of the scheme to mislead [her] and ultimately the Land & Environment Court". Her submissions go on to state that:

The significance of this water table analysis is that, in its very terms, it side-steps and implicitly, if coyly, denies the relevance of the obligation to drain and retain the Claimant's land which can only be accommodated with a properly designed retaining wall drain. ([19])

210 The submissions then analyse the "conceptual irrelevance" of the water table analysis to Ms Young's actual predicament, concluding that:

At the same time the purported Settlement was crafted to be read by the Council, and to inform their file, on the basis that the proceedings had been conducted and settled on a basis which vindicated the Construction Certificate plans. That is that the only problem which called for consideration (and this was common ground) was whether the works undertaken by the Kings had some adverse water table impact (detriment). ([22])

...

The scheme relies upon the Claimant, as an untutored member of the public, remaining oblivious of a fundamental non sequitur after the drainage obligation has been shifted to her by the device intended. That is that, irrespective of which neighbor [sic] is magically revealed in due course to have the drainage obligation of water from [Ms Young's land], the 65 mm drain [the subject of the undertaking] is necessarily redundant when the retaining wall drain is contemplated to be installed. ([24])

211 Ms Young contends that, by reason of the above matters, Ms Young was unable to obtain any orders as a consequence of the pleading put in place at the outset of the retainer of the lawyer respondents and her case was doomed from the outset.

212 There may well be scope for debate as to whether Ms Young is correct in contending that, without the joinder of the Council, the claim for reinstatement was doomed from the outset. It is arguable that the grant of a new development consent would overcome any issues as to "illegalities" affecting the earlier consent. Moreover, in Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590 it was simply said that it was desirable that Council be joined as a party, not that this was essential. In any event, the fact that there were other claims made in the Land and Environmental Court proceedings, such as claims for damages, means that whatever the position in relation to the reinstatement claim (a remedy which was expressed as being appropriate in the absence of a remediation proposal) it cannot logically follow that the proceedings as a whole were doomed to failure.

213 Moreover, the submission that failure to plead "any real or enforceable obligations" takes the matter outside the immunity is difficult to square with the proposition in Keefe v Marks that a negligent failure to plead a matter is within the scope of the advocate's immunity.

214 Reliance is placed by Ms Young on Coshott v Barry [2009] NSWCA 34, where Ipp JA (with whom Beazley and Campbell JJA agreed) said at [62]:

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

215 It has been suggested that the obiter comments in Coshott are contestable (see Beazley JA in Donnellan at [214]). In any event, the suggestion that temporal matters are determinative of the applicability of the immunity must be rejected (see Boland at [363]; and Donnellan).

Conclusion on these grounds

216 The rationale for advocate's immunity was clearly stated in D'Orta. It rests largely, though not solely, in the public interest in the finality of litigation. The present case, where hundreds of thousands of dollars and much time and resources (both of the litigants and of the various courts involved) have been devoted to the attempt by Ms Young to resolve her initial dispute as to the building works and to change the result achieved by way of settlement of proceedings commenced and disposed of a decade ago, is a prime illustration of why such a defence is in the public interest.

217 Here, the core of Ms Young's complaint is that the settlement that she reached was inadequate to achieve the outcome she desired. The fact that it can be cast as a complaint relating to non-joinder of a necessary party or the like does not detract from the fact that in substance she complains that the solution achieved in the settlement was illusory. Her claim against the lawyer respondents necessarily involves re-opening the settlement and determining issues (such as the nature of the unauthorised works and their impact) that were resolved by the settlement of the proceedings. To do so would offend the underlying rationale of the immunity invoked by the lawyer respondents.

218 His Honour did not err in articulating or applying the test of advocate's immunity. Ground 2 is not made out.

Ground 4 - mala fides

219 As to the question whether the defence of advocate's immunity extends to conduct that is mala fide, reliance is placed by Ms Young on the decision in Swinfin v Lord Chelmsford, for the proposition that the availability of the advocate's immunity defence is qualified by the requirement that the conduct be bona fide. Pollock CB said at 919 that:

[I]f he [counsel], intentionally did a wrong and acted with malice, fraud or treachery, we think he would be responsible, like every other wrongdoer, for the mischief thereby occasioned, notwithstanding his position as a barrister.

220 Reference is made to the obiter observation by Cripps AJA (with whom Santow JA and Mason P agreed) in Abriel v Rothman [2004] NSWCA 40 at [27] to the effect that his Honour was prepared to accept as arguable that the immunity covered by Giannarelli does not extend to a barrister's dereliction of duty consequent upon an undisclosed conflict of interest. That, however, is hardly a ringing endorsement of the proposition for which Ms Young contends. Nor is the acceptance by Kennedy J, in obiter dicta, in Del Borrello v Friedman & Lurie (a Firm) at [123] of the proposition "that the conduct of counsel acting in bad faith or dishonestly will not attract the immunity attaching to counsel". This issue was not addressed by the other members of the Court in that case.

221 In written submissions, somewhat obscurely, Ms Young contends that:

... the question of mala fides does not require to be (at least on the facts of the Claimant's case) a disembodied exception to the advocate's immunity, or a basis independent of the "preliminary decision test" to quarantine the immunity (although that may ultimately be held to be its rationale). ([48])

222 It is submitted that the conduct of Ms Young's case, on a basis where "no orders" could be obtained and therefore "where there must have been a fixed and firm intention by the Lawyer/Opponents that there would not be a hearing, (and an inevitability that there would be no hearing), irrespective of the consequences to the Claimant", cannot be "intelligibly assimilated" to a preliminary decision as to the way in which "the hearing" would be conducted ([49]).

223 Mr Newell contends that there was an "integral and systematic failure" by the lawyer respondents to constitute a case on behalf of Ms Young and that the fundamental inability for Ms Young to obtain any orders "or to constitute a case (of which it might be meaningful to speak of preliminary decisions prefiguring the conduct)" was a circumstance that existed from the outset of the retainers of each of the lawyer respondents.

224 As already noted, there is no allegation of breach of fiduciary duty in the existing pleading. Nor is there an express allegation of conduct that was mala fide. There is no more than an allegation that the lawyer respondents acted (or failed to act) with actual or constructive knowledge of particular matters. Knowledge of those matters of itself does not render the lawyer respondents' conduct mala fide. They might, for example, have known of the building waste notation without necessarily appreciating its significance or the significance now placed on it by Ms Young.

225 In D'Orta, the plurality said that an advocate is immune from suit "whether for negligence or otherwise" in the conduct of a case in court (at [85] my emphasis). It was made clear that the immunities of witnesses and judges apply to conduct which is mala fide (at [39], [41]). Their Honours said (at [39]) that:

... it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. [Footnote omitted]

226 In Cabassi v Vila, at 140, it was earlier made clear that witness immunity applies even where the witness has given false evidence (though exceptions to the immunity include prosecutions for perjury, contempt of court and for perverting the course of justice). Rich ACJ said at 139:

An action by the defeated party cannot ... be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation. [Footnotes omitted]

227 Starke J said at 140-141:

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be ... the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court. [Footnotes omitted]

228 Given the common principle underlying the immunity applicable to witnesses and judges and that which is applicable to barristers and solicitors, I accept the respondents' submission there is no reason to conclude that advocate's immunity does not also apply to conduct which is mala fide. If the scope of the immunities were inconsistent, then I agree it would potentially lead to re-litigation of the "skewed and limited kind" which the plurality in D'Orta considered was to be avoided ([45]).

229 Ground 4 is not made out.

Ground 3 of the appeal in relation to lawyer respondents - adequacy of reasons

230 It is contended that his Honour failed to give adequate reasons for his conclusion in relation to the scope of the advocate's immunity because he did not have regard to Ms Young's submissions concerning the scope of the advocate's immunity in the particular circumstances of the case.

231 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, this Court considered the duty of a judicial officer to provide reasons. Mahoney JA (at 269-70) repeated his earlier observations in Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 at 385-6 to the effect that it is not the duty of the judge to decide every matter raised in argument and that the judge may decide in a way which does not require the determination of a particular submission if the decision on a particular submission is not within the judge's reasoning to the final conclusion.

232 In the present case his Honour set out the relevant legal principles, analysed the pleading, and explained why it was that he considered the substance of what was identified in the pleading as the negligent (or misleading and deceptive) conduct was within the scope of the immunity. His Honour was satisfied that the conduct which was the subject of complaint was work done out of court that led to a decision affecting the conduct of the trial or that was intimately connected therewith. His Honour also identified as applicable the principle in Attard v James in relation to a claim for wasted costs. The fact that his Honour did not separately address each of the particular submissions raised by Ms Young as to the breach of the advocate's immunity does not bespeak error in his Honour's conclusions.

233 Ground 3 is not made out.

Ground 3 of appeal in relation to engineer respondents - scope of witness immunity; ground 1 of engineer respondents' notice of contention

234 In these grounds of appeal, Ms Young makes, in substance, two complaints as to the finding that witness immunity was a complete answer to the claims against the engineer respondents. First, that his Honour applied the wrong test when determining whether the immunity applied to the work that the engineer respondents had performed (and in respect of which complaint was made) and, second, that his Honour erred in characterisation of the retainer of the engineer respondents, as pleaded, and hence as to the identification of the relevant conduct when determining whether it fell within the scope of the immunity.

235 The nub of Ms Young's complaint is that her claim against the engineer respondents, properly understood, concerned an alleged liability by reason of acts and/or omissions in the course of the provision of advice work that was not provided in anticipation, or for the purpose, of the fifth respondent giving evidence in the proceedings and hence was not within the reach of witness immunity. It is submitted that advice in relation to an appropriate remediation plan was antithetical to the remedy of reinstatement that was sought in the proceedings.

Applicable test

236 The rationale underlying witness immunity was considered by the High Court in D'Orta in the course of the Court's consideration of advocate's immunity. The plurality there noted (at [39]): that it mattered not how the action against the witness was framed; that witness immunity was an immunity from suit; and that the immunity extended to preparatory steps. Their Honours emphasised that witness immunity was ultimately, although not solely, founded in considerations of the finality of judgments and that "the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises".

237 The scope of witness immunity insofar as it extends to steps preparatory to trial was considered in some detail by Beazley JA in Commonwealth of Australia v Griffiths in the context of criminal proceedings. The question there for determination was whether witness immunity extended to protect the work done by an expert in analysing seized substances. Her Honour there considered what matters were properly to be considered as being preparatory to trial, as opposed to being that part of an investigative process that is not protected by the immunity.

238 Her Honour noted the statement in D'Orta by McHugh J (at [99]) that the immunity extends to "out-of-court conduct that is intimately connected with the giving of evidence in court" (his Honour citing Watson v M'Ewan [1905] AC 480) and that it is now well accepted that witness immunity extends to the preparation of the evidence which is to be given in court (Marrinan v Vibart [1963] 1 QB 528), whether or not the evidence is eventually adduced in court.

239 Turning to the question as to how far back into the preparation stage the witness immunity reaches, her Honour noted (at [58]) that in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; [1981] 1 All ER 715, Drake J held at 721 that the immunity extended to cover the acts or omissions of a witness or potential witness during the stage that material was being collected or considered with a view to its possible use in criminal proceedings.

240 Her Honour then considered other authorities before reviewing in detail the various judgments of their Lordships in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, a case where the plaintiffs sought damages for conspiracy to injure and misfeasance in public office, alleging, inter alia, that the police officers had fabricated evidence against them. That review demonstrated differences in the reasoning of their Lordships as to the extent of the application of the immunity.

241 Her Honour did not consider it appropriate (at [84]) to state for what the Darker decision authoritatively stood but did conclude that it stood for the proposition that the immunity extends beyond giving evidence in court and said that for the immunity to apply "there must remain a connection with the evidence that is to be given in court (regardless whether evidence is, in fact given)", referring to the reasoning of Lord Hope of Craighead. His Lordship had noted (at 448) a crucial difference between statements made prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence "where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence" and conduct at earlier stages in the case when the police officers were performing their functions as enforcers of the law or as investigators.

242 In Griffiths, the submission was that the relevant work in analysing seized substances occurred, at least, arguably, at the investigative stage, and that an investigation of all the facts was required to determine on which side of the immunity line the case fell, hence the proceedings ought not to have been summarily dismissed. It was submitted that it could not be assumed that the relevant expert in that case had been requested to undertake the analysis for the purposes of providing evidence in court and the hypothesis was advanced that the expert might have been requested to provide confirmatory evidence as to the nature of the substance.

243 Her Honour noted at [89-[90] a difficulty with that submission having regard to such evidence as there was before the court as to what the expert had done and considered that it might be inferred that the arrest of Mr Griffiths was as a result of an investigative process, in which the expert had not been involved, which was sufficiently advanced to have enabled the police to obtain warrants to undertake a search of the premises.

244 Her Honour concluded at [91] that the expert in question was not 'investigating' the crime alleged against Mr Griffiths; he was analysing a sample of a substance that had been seized from Mr Griffiths' premises and which was to have been used in furtherance of a prosecution, if the substance was a prohibited substance. Her Honour considered that the expert thus fell within the category of person referred to by Lord Hope of Craighead in Darker, namely a witness whose statements are made or who has done things "when giving or preparing to give evidence". His Lordship said (at 449) that there the immunity extends only to the content of the evidence which the witness gives or is preparing to give based on the material collected by the witness.

245 Her Honour noted at [92] that the expert's certificate of analysis was not tendered in Mr Griffiths' trial but the expert was called to give evidence and gave evidence of all of the tests that he conducted and the manner in which he conducted those tests. In circumstances where the cause of action against the expert was based upon the manner in which he conducted those tests, her Honour did not regard as decisive that there were a number of possible arguments as to why those tests may not have been carried out with a view to, or in furtherance of, the prosecution case. The expert had given evidence of all of the tests and her Honour noted that there was no suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. Her Honour considered that there was no possible basis to suggest that the expert's earlier or later testing was carried out for any other purpose unassociated with the prosecution.

246 At [93], her Honour further tested the matter having regard to the underlying rationale for the immunity, noting that if the matter were to proceed to trial, it would involve a suit based upon negligent conduct of a series of tests that had been relied upon by the Crown for the purpose of proving the nature of the substance found in Mr Griffiths' possession. Her Honour concluded that a trial based upon the negligent performance of the testing would involve the retrial, not only of the evidence given at trial but also of the preparatory steps taken to prove an essential ingredient of the charge brought against Mr Griffiths, namely, that the substance was a prohibited substance. On that basis her Honour considered at [94] that even without resort to the English authorities the case fell within the principle stated by the High Court as to the application of witness immunity.

247 The relevant test applied by her Honour was thus a test as to the connection between the conduct of which complaint was made and the hearing, having regard to the underlying rationale of the immunity namely the principle of finality.

248 In the present case, Ms Young argues that the relevant test is one that focuses on the purpose of the work carried out by the expert. Reliance is placed on what was said in Palmer v Durnford Ford (1992) QB 483 at 488 to 489 by Simon Tuckey QC sitting as a deputy High Court judge as to the test for witness immunity in relation to work preparatory to a hearing:

In considering whether the immunity is so far reaching, I approach the matter by noting that experts are usually liable to their clients for advice given in breach of their contractual duty of care and secondly that the immunity is based upon public policy and should therefore only be conferred where it is absolutely necessary to do so. Thus, prima facie the immunity should only be given where to deny it would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.

Accordingly I do not accept that the immunity can be as wide as that contended for. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all...

Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. (my emphasis)

249 Ms Young notes that this was approved in M (a Minor) v Newnham London Borough Council [1995] 2 AC 633 at 661G (one of the authorities to which Beazley JA had regard in Griffiths). Reference is also made to Stanton v Callaghan [2000] 1 QB 75, where Otton LJ referred to authority that the availability of witness immunity for alleged pre-hearing work depended on there being "principal and proximate connection" and Nourse LJ did not question the purpose test but queried whether the correct test should be the "principal" purpose, as suggested by Palmer, or the "substantial" purpose.

250 Ms Young contends that his Honour erred in that he did not determine whether the advice work was done for the purpose "and by implication with the intention" of the fifth respondent giving evidence in the proceeding.

251 In Griffiths, her Honour did not frame the test by reference to the purpose or intention, subjective or otherwise, of the person undertaking the work about which complaint is made. Rather, her Honour looked to see whether there was a connection between the work performed and evidence given or to be given in the subsequent hearing.

252 His Honour, while not expressly articulating the test adopted for determining whether the work undertaken by the engineer respondents was of a preparatory kind in connection with the litigation so as to come within the scope of the privilege, clearly had in mind (as evident from what his Honour said at [186]) that it was necessary for there to be a connection between the work in question and steps taken or to be taken in the conduct of the litigation. In particular, his Honour had regard to the connection between the advice "given in the course of proceedings" and the settlement which occurred ([189]) by reference to two matters: the report and "appropriate remediation plan" being "made available in the litigation" and the participation of the fifth respondent in the expert conclave that resulted in the production of the detailed drainage works document that formed part of the consent settlement in the proceedings ([186]).

253 His Honour did not err in the test (of "connection" between the work and the litigation) that was applied in order to determine whether the work undertaken by the engineer respondents fell within the reach of witness immunity.

Characterisation of retainer/work

254 The second main complaint as to this finding is the application by his Honour of that test.

255 In particular, complaint is made that his Honour erred in his characterisation of the fifth respondent's retainer and the purpose of the work that he had undertaken pursuant to that retainer. It is submitted that his Honour's reasoning takes into account subsequent events, some of which it is said were not pleaded, in order to draw an inference as to the purpose of the engineer respondents' undertaking of the advice work at the time that it was undertaken. Reference is here made in particular to what was said by his Honour at [185].

256 In summary, Ms Young contends that his Honour erred in finding that the fifth respondent's work was undertaken "pursuant to a retainer to advise and give evidence" (my emphasis), as stated by his Honour in the first sentence of [185]; that he was asked to prepare an appropriate remediation plan "for the purpose of presentation in the litigation", as stated by his Honour in the second sentence of [185]; that the remediation plan was prepared "as evidence in support of" Ms Young's claim for reinstatement of the neighbours' land, as stated by his Honour in the last sentence of [185]; and that the fifth respondent's participation in an expert conclave was "as a consequence" of his report and mediation plan having been "made available" in the litigation, as in effect stated by his Honour at [186].

257 What is conceded by Ms Young is, first, that something prepared by the fifth respondent was "made available" in the litigation (AT 65.41), although it was asserted from the bar table by Mr Newell that there was no evidence that the fifth respondent's "expert report dated 15 December 2003" was "the report in the proceedings", as submitted by the engineer respondents (AT 60.3) or that this report was used with the intention of calling evidence from the fifth respondent in the proceedings (AT 63.17). Second, it is conceded that the fifth respondent participated in an expert conclave (AT 66.5); that the conclave produced the exhibit document which contained details of drainage works (AT 66.10); and that this formed part of the consent settlement of the proceedings (AT 66.15).

258 Ms Young notes that the retainer that was pleaded in the amended statement of claim was a retainer "to provide advice ... as to hydrological issues in connection with the unlawful works undertaken by the [neighbours]" ([90]). There is no allegation made in the pleading that the retainer of the fifth respondent extended to the giving by him of evidence as an expert in the proceedings.

259 The pleaded retainer extended to the preparation of "a remediation plan" in respect of the adverse consequences of the unlawful works (see [92]). It is this plan that was defined in the pleading as "an appropriate remediation plan". It is also alleged that in preparing the particular report identified at [92] (a report dated 15 December 2003) the fifth respondent assumed the responsibility to advise in relation to an appropriate remediation plan.

260 A distinction is drawn by Ms Young between "reinstatement" of the neighbours' property, being the only remedy she says would have been effective in her interests, and "remediation" of the property, being the remedy the subject of the agreed settlement. It is submitted that advice in relation to an appropriate remediation plan was antithetical to the remedy of reinstatement that was sought in the proceedings and hence it could not be inferred that the fifth respondent was retained to give evidence in the proceedings. Ms Young notes that there was no allegation in the pleading that at any material time there was an intention on the part of those securing the advice work that the fifth respondent would in fact give evidence and it is submitted that the circumstances pleaded by Ms Young speak against such a conclusion.

261 Pausing there, insofar as it is contended that it is antithetical to a proceeding seeking reinstatement for there to have been an intention to call expert evidence from an expert hydrological engineer retained to advise as to an appropriate remediation plan, Ms Young is faced with the reality that this is precisely what happened in the present case. Whatever the scope of the fifth respondent's retainer, as properly construed, and however limited the pleaded retainer was, the fact remains that the fifth respondent was called to give evidence in the Land and Environment Court proceedings, albeit that he did so in the context of a hearing that was only necessary in order to determine Ms Young's claim for costs, in part on an indemnity basis. Therefore, on any view of the matter, the fifth respondent's retainer must ultimately have extended to the giving of expert evidence at that stage of the proceedings. It also must have extended to the role that the fifth respondent played as an expert in the expert conclave held on the first day of the hearing.

262 Moreover, it is clear from the reasons of McClellan CJ at LEC that the evidence that the fifth respondent gave was not limited to what works would be appropriate for the purpose of remediation. McClellan CJ at LEC made findings, expressly accepting the fifth respondent's analysis of the situation, as to the drainage consequences of the construction of the footing of the retaining wall with inadequate drainage (see [30]-[34]).

263 The submission by the engineer respondents is, in effect, that there was no error in his Honour's characterisation of their retainer because it was open to his Honour to infer that the fifth respondent was retained as an expert witness both to advise as to the appropriate remediation plan and (if that be necessary) to give evidence in the proceedings.

264 That submission is put by reference to the following matters that are pleaded in the amended statement of claim: that the fourth respondent was retained to provide advice as to hydrological issues in connection with the neighbours' unlawful works ([90]); that the fifth respondent was requested to prepare a remediation plan in respect of the adverse consequences of those works ([92]); that the fifth respondent was briefed with certain of the court documents in the Land and Environment Court proceedings ([95]); that the engineer respondents knew or ought to have known that Ms Young "was seeking as her claimed remedy" the reinstatement of the neighbours' property ([96]); and that the alleged breach of duties by the engineer respondents was a failure to provide the Engineering Advice "at any time prior to the settlement of the Proceedings" ([98]).

265 Reliance on the participation of the fifth respondent in the expert conclave which produced the expert recommendation as to the necessary drainage works is clear from the pleading ([103]).

266 The engineer respondents note that the allegation of loss and damage suffered "by reason of the Settlement" that it is alleged would not have been suffered but for the breach of duty alleged on the part of the engineer respondents ([107(b)]) is the same as the allegation made against the third respondent as to breach of the obligation pleaded in [80(a)].

267 The engineer respondents further contend that it was open to his Honour to infer that the experts' retainer extended to the giving of evidence or the possibility of the giving of evidence, having regard to the fact that evidence was in fact given by the fifth respondent in the proceedings (AT 62.8).

268 Thus the engineer respondents maintain that it was open to his Honour to conclude that the retainer was a retainer both to provide advice and to give evidence as an expert in the proceedings; and to conclude that the retainer to advise involved the provision of an expert report (albeit one in relation to an appropriate remediation plan).

269 The basis on which the respective experts participated in the expert conclave (i.e., whether it was pursuant to a court direction or otherwise) is not clear. However, it is conceded by Ms Young that they did so. McClellan CJ at LEC refers in his reasons to the meeting taking place in the precincts of the court ([26]).

270 It is apparent from the pleading that what Ms Young alleges is that the engineer respondents were retained at a time when the proceedings were on foot ([90]); they were retained to advise in connection with the alleged unlawful works the subject of the proceedings ([90]); and on an unspecified date in 2003, but logically this must have been after the retainer in November 2003, the request was made that they prepare an "appropriate remediation plan" ([92]). The amended statement of claim further pleads that the fifth respondent was briefed with the court documents ([95]) and participated in the expert conclave on the first day of the hearing ([103]). It is not disputed that he gave evidence at the costs hearing as to the drainage consequences of the works. Evidence of those consequences would presumably have been relevant not only to the negotiation in the expert conclave of an agreed remediation plan but also, had there been no settlement and had the hearing proceeded in the ordinary course, to the question whether, in the discretion of the court, there should be an order for reinstatement of the neighbouring property.

271 Whether or not at the outset the engineer respondents' retainer contemplated that the fifth respondent would give evidence in the proceedings or retained him to do so, it is apparent from the pleading that the retainer pleaded by Ms Young was a retainer to give expert advice in connection with, or in relation to, matters the subject of the proceedings that were then on foot. At the very least, by the time of the costs hearing (if not earlier) the retainer must have extended to the giving of evidence as an expert witness since that is what occurred. His Honour did not err in so concluding.

272 Ms Young in her pleading appears (see [92]) to accept that the 15 December 2003 report (a copy of which was not before this Court) was one that was made pursuant to the retainer. If so, then it can only be assumed that this was a report that was or purported to be a report as to "hydrological issues in connection with the unlawful works" ([90]), (an issue of at least potential relevance to the Land and Environment Court proceedings since, there, a claim for damages had been brought) and as to an appropriate plan for remediation of those consequences.

273 His Honour referred to the plan being requested "for the purpose of presentation in the litigation", apparently having regard to the fact that the fifth respondent was provided with court documents referred to in the pleading. It is not clear whether his Honour was there referring to "presentation" in the sense of the plan being tendered in the proceedings or simply being used in connection with the proceedings. It would perhaps have been more accurate to say that the request was for the preparation of an appropriate remediation plan and that this was in connection with the proceedings then on foot. Similarly, his Honour may have overstated the position in stating that the remediation plan "was prepared as evidence in support of" the remediation claim, in circumstances where it may have been prepared simply for use in connection with the proceedings and/or the potential settlement of the proceedings. However, for the following reasons, ultimately nothing turns on any such error.

274 Whether or not there was an intention on the part of Ms Young at the time of the engineer respondents' retainer that the fifth respondent would be called upon to give evidence in the proceedings, as he ultimately was, even assuming such an intention would be relevant, the pleading in my opinion makes clear that the retainer was a retainer to advise and prepare a remediation plan in connection with the subject matter of the litigation. Whatever work the fifth respondent undertook in the preparation of the December 2003 report (which may or may not have had any relevance to the particular discussions in conclave on 16 February 2004), what is not disputed is that he did participate in the conclave which produced the agreement as to the works to be carried out as part of the settlement of the proceedings. The fundamental complaint made by Ms Young is as to the inadequacy of that settlement. Presumably, the fifth respondent's is prior work informed both his input into the conclave and his evidence at the costs hearing. In any event, the pleaded failure to provide the Engineering Advice is a failure that was said to subsist up to the settlement of the hearing and clearly encompasses a failure to provide the advice now said to have been necessary for the purposes of the conclave and the settlement of the proceedings.

275 This is not in my opinion a case where advice is sought, unconnected to the conduct of litigation, of an hydrological engineer as to how best to remedy a drainage problem and that advice (assumed to be negligent for the purposes of this hypothesis) is later relied upon (perhaps unbeknownst to the engineer) by the client in agreeing to certain drainage works as a consequence of which the client incurs loss. This is a case where advice was sought in the context of a litigious dispute, and in the course of ongoing litigation, as to what would be appropriate works to remedy the problem that was the very subject of the litigation; the expert both participated in the discussions that led to the compromise and gave evidence at the hearing that followed acceptance of the compromise; and the alleged negligence is a breach of a duty to advise or warn Ms Young of matters going to the adequacy of the basis on which the proceedings were ultimately settled.

276 There is in my opinion a sufficient connection between the alleged negligent conduct in this case and the settlement of the proceedings to bring the conduct within the reach of the witness immunity, whether or not at the time the expert was retained the retainer contemplated the giving of expert evidence at the hearing.

277 If the matter is tested having regard to the rationale underlying witness immunity, for the complaint now made against the engineer respondents to be determined would require that the matters resolved in the settlement of the proceedings (such as the drainage consequences of the unauthorised construction of the retaining wall and whether, in the discretion of the court, the appropriate remedy would have been remediation or otherwise) now be explored in the context of the Common Law Division proceeding. In that sense, the basis of the settlement would fall to be re-opened and the rationale underlying the immunity would come into play.

278 Ground 3 is not made out. Even if his Honour did err in the characterisation of the retainer, ground 1 of the engineer respondents' notice of contention is made out because there was a sufficient connection between the negligence of which complaint is made (namely an omission to advise or warn as to matters integral to the manner in which the proceedings were settled) and the settlement of the proceedings.

Ground 4 of appeal in relation to engineer respondents - adequacy of reasons

279 The complaint as to adequacy of his Honour's reasons is that his Honour did not state the test which was the foundation for his reasoning as to witness immunity and did not otherwise show by the exposition of his reasoning what test he had applied, nor did he demonstrate that he had regard to the submissions of Ms Young.

280 As to the test applied by his Honour, it is clear from his Honour's reference to D'Orta and the basis on which his conclusion was expressed at [189], that his Honour was applying a test of connection between the conduct complained of and the litigation, analogous to that applicable in relation to advocate's immunity.

281 As to the complaint that his Honour did not demonstrate that regard was had to the submissions of Ms Young, his Honour indicated on 26 August 2013, when reserving judgment on both the amendment application and the separate questions, that if he disallowed the amendment he would determine the separate questions of law on the basis of the pleading to which the written submissions that had been filed had been directed (i.e., without oral submissions on those questions).

282 Ms Young's written submissions on witness immunity were reproduced in the Appeal Books. Those submissions place emphasis on the assertion that this was not an appropriate case summarily to dismiss the proceeding (see [2]-[7]; [20]). It is asserted (at [8]), in what appears to be an incomplete paragraph that there was no basis in the pleadings to assert that the work of the fourth respondent was "for the principal purpose". Attention is drawn to the fact that there is no allegation that the fifth respondent was being "attacked by reference to nay [sic] evidence he gave" ([11]); nor was it alleged that the "negligent omissions arose out of his status or work as a witness in court or at all" ([12]); it is submitted (plainly incorrectly) that the fifth respondent was not a witness at any time ([12]). It is disputed that "the report that he prepared pursuant to his retainer can be rationally connected as a matter of purpose to issues in the case at the trial that was to be conducted" ([13]). It is further disputed that "his report was for any purpose properly connected to the issues in the proceedings" ([13]) but that "those are matters for a hearing" ([14]).

283 True it is that his Honour did not expressly refer to the submission (at [15]) that witness immunity "depends for the most part upon the purpose for which the advice is given judged by reference to all of the facts of the particular case", in the context of which passages are quoted from Darker and from Palmer. Emphasis appears to be placed by Ms Young on the fact that there was no suggestion in her case that the advice given by the engineering respondents was as to the merits of her case nor that the particular advice was sought or given for the purpose of giving evidence ([19]).

284 The engineer respondents filed submissions in reply addressing each of the above points. His Honour considered the relevant authorities in his reasons; identified the conduct said to have been negligent on the part of the engineer respondents; and explained, albeit briefly, why it was that this fell within the scope of the immunity.

285 Ground 4 is not made out.

Grounds 5-7 of appeal in relation to engineer respondents - alleged misapprehension of pleaded claim/denial of natural justice

286 These complaints are dealt with together in Ms Young's submissions. It is contended that his Honour misapprehended her case for the purposes of the application before him and had regard to matters which were no part of the pleaded case against the engineer respondents.

287 In this regard, Ms Young maintains that the purpose of the advice work undertaken by the engineer respondents was not in order to prepare to give evidence; rather, it is said that the work was undertaken with a "fixed and firm intention" that the expert would not give evidence and for a purpose antithetical to the giving of evidence by him.

288 I have addressed the substance of this submission in dealing with grounds 1-3 above. It was open to his Honour to conclude that the engineer respondents' retainer, at the very least by the time of the expert conclave, extended to the participation by them at the experts' conclave (a matter that was pleaded in the amended statement of claim - [103]).

289 In any event, even if the original retainer did not extend, implicitly or otherwise, to the potential giving of expert evidence in the proceedings, the fact is that the fifth respondent did participate in the conclave and did give evidence in the proceedings and the complaint made against him is of failure to give advice or warnings up to the time of settlement but for which it is said the proceedings would not have been settled on the terms that they were.

290 I am not persuaded that his Honour misapprehended Ms Young's pleaded case but even if his Honour's characterisation of the retainer involves a misapprehension as to the pleading, nothing turns on this for the reasons set out above.

291 Further or in the alternative, Ms Young submits that his Honour erred in that she was denied natural justice by reason that his Honour had regard to matters which were no part of her pleaded case and did so in circumstances that she was denied the opportunity to respond thereto. Reference is made to the fact that she was denied the opportunity to respond generally by filing a reply, the provision of material particulars, tendering evidence and/or relevant submissions.

292 This complaint is without foundation. The fact that his Honour proceeded to determine the separate questions in advance of the filing of a reply does not involve any denial of natural justice in circumstances where the parties (and, relevantly, Ms Young) consented to such a course. Furthermore, the matters that it is said Ms Young would raise by way of reply had already been aired in the context of her unsuccessful application further to amend the statement of claim. His Honour was aware of those allegations and expressly addressed them in obiter observations in his reasons.

293 Ms Young had foreshadowed an intention to file evidence in relation to the summary dismissal applications that were listed for hearing on the same day as the separate questions and chose not to do so. As to the filing of submissions in reply, there had been written submissions filed and his Honour had made clear that he intended to proceed to determine the separate questions on those submissions. The suggestion seems to be that Ms Young was not aware that his Honour would reach the conclusion that the retainer of the expert was a retainer to advise and give evidence (as opposed to a retainer solely to advise) and that she should have had an opportunity to respond thereto. However, the fact that the fifth respondent had given evidence at the costs hearing was known to her and was part of the material before his Honour on the applications before him.

294 Nothing was said in submissions on the present application that shows that his Honour's decision was incorrect by reference to anything that might have been put in submissions, had there been a further opportunity for such submissions, on the part of Ms Young. As to the reference to lack of opportunity to put on "material particulars", it is by no means clear what is here contended.

295 Reference is made by Ms Young to the decision of Harrison J in Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510 and in particular the observations by his Honour at [33] to [34]:

Notwithstanding all of the above, there remain at least two related matters that in my opinion are particularly troubling in this case, and which directly intersect with the way in which I am able to dispose of this application. The first matter is the apparent or potential strength of the plaintiffs' allegations that the defendants have been negligent. As I have already commented, the plaintiffs would have been substantially better off if they had simply not defended the proceedings. The predicament that the judgment created for them is difficult to explain but even more difficult to understand. It is also difficult not to have a sense of unease about the possibility that an egregious error may go without the prospect of a remedy.

The second matter, however, is that it is not possible in a fair and reasoned way to assert the first without a proper inquiry. As was observed by Beazley and Giles JJ in Symonds v Vass [2009] NSWCA 139, the question of whether advocate's immunity applies in a given case cannot be determined without proper findings of negligence. Whether advocate's immunity applies depends upon a clear understanding of what occurred and of the respect or respects in which there was negligence, which is something that cannot and should not be determined on a hypothetical basis.

296 An appeal from that decision has recently been allowed (Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335). Suffice it to say that, even if it had been relevant to the availability of advocate's or witness immunity (which it is not) that the error was egregious, I could not, having regard to the pleadings in the present case, have formed any opinion such as that expressed by his Honour at [33] as to the strengths of the present case. Nor does the conclusion I have reached as to the outcome of this appeal cause me the same sense of unease as his Honour there felt.

297 As to what was said by his Honour in [34], Symonds was a case that was not determined on a summary basis. There, it was held that there were not sufficient findings as to breach of duty to enable the Court to conclude that the negligent conduct was within the reach of the immunity. In contrast, and apposite to the present situation, in Donnellan, Basten JA said at [259]-[260]; [272]:

It was held in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, that the immunity from proceedings brought by a former client against a legal practitioner alleging negligence (or a related cause of action) in relation to the conduct of litigation depends on the principle of finality. That principle is offended by a reconsideration of the circumstances in which a final judgment has been obtained, otherwise than by way of appeal from, or judicial review of, the earlier proceedings. (There may be other exceptions, such as a challenge to a judgment procured by fraud.) In circumstances where the immunity applies, to address the merit of the claim before considering the defence would be to subvert the very principle upon which the defence is premised.

Against that conclusion, it may be contended that the application of the immunity cannot be addressed until the precise scope of the dispute and the manner of its resolution has been determined. However, the availability of the defence cannot rest upon how the parties run the proceedings. If the defence is available, that must be ascertained from the pleadings and the potential scope of the proceedings so revealed. It is not to be assessed and determined only after the hearing of the merits, with its potential to diminish confidence in the proper administration of justice. (my emphasis)

...

... in accordance with the principles set out above, the question is not what happened at the trial below, but what might properly have been anticipated, based on the pleadings.

298 Barrett JA in that case expressed the opinion that if the defence of legal practitioner's immunity from suit is available to meet a client's allegation of negligence against a lawyer who acted for the client in litigation, there was much to be said as a matter of principle for the proposition that the client's negligence action should be disposed of solely on that ground ([276]) since otherwise there would arguably not be due regard for the principle of finality of litigation ([277]).

299 Each case must be considered on its own facts. If the impugned conduct can be adequately identified from the pleadings so as to permit a determination as to whether, as a matter of law, immunity is a complete defence thereto, then in an appropriate case that question can properly be dealt with as a separate question. In other cases, where the ambit or the conduct about which complaint is made is not clear from the pleadings, then a determination as to the disputed facts will be necessary.

300 As in any application for determination of a question of law as a separate question, it is necessary for the Court to consider whether it is appropriate for such an order to be made having regard to the principles that have been articulated in cases such as Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215. Matters to be taken into account in that regard include whether the resolution of the separate issue may have the effect of resolving or substantially narrowing the litigious controversies; the risk that this may merely result in an appeal from that decision creating a multiplicity of proceedings, delay and/or undesirable fragmentation of the proceedings; and the overriding principle mandated by s 56 of the Civil Procedure Act.

301 In the present case, a forensic decision was made by Ms Young (up until her belated attempt further to amend her pleading) not to plead fraud or conduct amounting to fraud in her statement of claim (perhaps to avoid assuming the onus of proving such serious allegations) and to leave until the time for filing of a reply any allegation amounting to mala fides as a basis for denying the applicability of advocate's immunity. A further forensic decision was made by her to consent to the determination as separate questions of law in advance of other issues in the proceedings of the questions as to the availability of the immunity defences. That meant that a final decision was made on those issues based on the pleadings as they then stood or were taken to stand.

302 Ms Young is bound by the consequences of those forensic decisions. In the event, the determination (correct in my opinion) that immunity is a complete answer to the various claims raised by Ms Young illustrates the public interest in the maintenance of such a defence; since, were such a defence not to have been considered until after a hearing on the merits, this would have the consequence that issues in part explored in the Land and Environment Court hearing (on the costs hearing) and settled following the settlement discussions that took place during the course of that hearing and with the assistance of the expert witnesses, would have been re-opened and re-litigated at no doubt considerable expense. That is precisely the result that the High Court in D'Orta emphasised should be avoided.

Notices of Contention

303 It is not necessary to consider the lawyer respondents' notice of contention or the balance of the engineer respondents' notice of contention, having regard to the conclusion reached above. Suffice it to say that if the matter had proceeded as a summary dismissal application, then the dispute as to the issue of the scope of the engineer respondents' retainer or the characterisation of the work performed by them may well have precluded a conclusion that the test set out in General Steel was made out. Similarly, the existence of arguments available to Ms Young as to the scope of the advocate's immunity might well have weighed in favour of not determining the proceedings on a summary dismissal basis. However, that was not the basis on which his Honour dealt with the matter and his Honour has not been shown to have erred in relation to the determination of the separate questions.

Conclusion

304 The appeal should be dismissed with costs.

305 EMMETT JA: Ms Margot Young sued two solicitors, a barrister and two engineers. The solicitors acted for her in proceedings in the Land and Environment Court and the barrister appeared for her in those proceedings. The engineers were retained by her to give expert advice and gave evidence on her behalf in the proceedings. The proceedings related to work being done by Ms Young's neighbours, Mr and Mrs King. The proceedings were settled on the basis of undertakings given to the Land and Environment Court by Mr and Mrs King concerning the work in question. For various reasons, the work has not been carried out.

306 Ms Young commenced proceedings in the Common Law Division. All defendants filed defences. Subsequently, each of the defendants filed notices of motion seeking summary dismissal of the proceedings. Two of the motions sought orders, in the alternative, that questions concerning advocate's immunity and witness immunity, raised by the defences, be determined separately.

307 On 2 August 2013, a judge of the Common Law Division ordered that three separate questions be heard and determined in advance of all other questions in the proceedings. No directions were given in relation to evidence concerning the separate questions. The orders appear to have been made on the basis that the question to be considered was whether the defences of advocate's or witness immunity were a complete answer to the statement of claim, on the assumption that all of the allegations in the statement of claim are made out.

308 An amended statement of claim was filed by Ms Young on 5 August 2013, pursuant to leave given on 2 August 2013. The summary dismissal applications proceeded in relation to that amended statement of claim, although no defences had been filed in relation to it. The primary judge also heard at the same time as the hearing of the summary dismissal applications a notice of motion by Ms Young seeking leave to file a further amended statement of claim, in which she sought to make allegations against the solicitors and the barrister of breach of fiduciary duty and lack of good faith.

309 In the course of the hearing of the motions on 23 August 2013, counsel for Ms Young applied for an adjournment to enable her to put on further evidence as to why the further amendment was required. The adjournment application was refused. The primary judge subsequently made orders, for reasons published on 27 September 2013, refusing leave to Ms Young to file a further amended statement of claim. His Honour also determined, in favour of the defendants, the questions raised in their notices of motion. As a consequence of that determination of the questions, his Honour concluded that the proceedings could not succeed against any of the defendants. Accordingly, his Honour dismissed the proceedings.

310 Ms Young has applied for leave to appeal from the refusal of the adjournment and the refusal of leave to file a further amended statement of claim. Those applications for leave should be refused for the reasons separately published (see Young v Hones (No 2) [2014] NSWCA 338).

311 On a proper analysis, in the light of the determination of the preliminary questions, the orders for dismissal of the proceedings are final orders. Leave is therefore not required to appeal from those orders.

312 Ms Young now complains that she has been deprived of the opportunity of pleading fraud, lack of good faith, or breach of fiduciary duty by way of reply. She says that advocate's and witness immunity would not be an answer to such claims. However, an allegation of fraud, lack of good faith, or breach of fiduciary duty involves a separate cause of action. It may well be that advocate's immunity and witness immunity would not be an answer to such claims. However, that is not a matter properly to be raised in reply. Those causes of action are quite different from the causes of action presently relied on by Ms Young, which are limited to negligence on the part of the lawyers in relation to the commencement and conduct of the proceedings in the Land and Environment Court and the advice and evidence given by the engineers. The issue of whether the preliminary questions were correctly answered by the primary judge must therefore be decided on the basis of the amended statement of claim as filed on 5 August 2013.

313 While it does not appear to have been raised as a ground of appeal, Ms Young, in her written submissions, complains that, notwithstanding that she consented to the procedure adopted by the primary judge, that procedure should not have been adopted. The course adopted by the primary judge, in directing the separate determination of the questions, was an undesirable course to adopt in the circumstances. The separate questions should not have been raised at that stage in the proceedings, because no defence had been filed to the pleading filed on 5 August 2013, and of course there had been no reply. Rather, his Honour appears to have proceeded on the basis that the defences to the earlier statement of claim could stand insofar as they raised the question of immunity. Nonetheless, Ms Young consented to the determination of the separate questions in advance of the closure of the pleadings.

314 Having regard to the manner in which the appeal was conducted on behalf of Ms Young, the task of deciding the substantive and important questions of law raised by the appeal has been made considerably more difficult. There is much to be said for remitting the matter to the Common Law Division for pleadings to be completed and for the proper formulation of questions for trial. That course, however, would involve the parties in considerably greater expense and no party contended for that course to be adopted.

315 I have now had the considerable advantage of reading in draft form the proposed reasons of Ward JA for dismissing the appeal. I agree with her Honour's analysis of the issues and her Honour's reasons for concluding that the appeal should be dismissed. In the absence of any application for a special order as to costs, I agree with the orders proposed by Ward JA.

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Decision last updated: 01 October 2014