Vass and the Other 24 Persons Named in Schedule "A" Hereto v Symonds & Ors [2009] HCATrans 322 (11 December 2009)

Last Updated: 15 December 2009

[2009] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S186 of 2009

B e t w e e n -

CEDRIC BOHRSMANN VASS AND THE OTHER 24 PERSONS NAMED IN SCHEDULE “A” HERETO

Applicant

and

MONICA FRANCES SYMONDS

First Respondent

GERALD HENRY SYMONDS

Second Respondent

PETER MORGAN

Third Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 2009, AT 10.04 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR T.M. FAULKNER, for the applicants. (instructed by Mallesons Stephen Jaques)

MR F.M. DOUGLAS, QC: May it please the Court, I appear with my learned friend, MR V.R.M. GRAY, for the respondents. (instructed by George Mallos Lawyers)

FRENCH CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, in our submission, special leave should be granted in this matter for two related reasons. May I state them first and then come to elaborate upon them. The first is that the Court of Appeal did not do what it should have done in this sense. There were very clear statements of the respects in which it was said that there had been negligence or breach of duty by the applicants and the majority should, as Justice Ipp did, have entered upon the question whether advocate’s immunity was available. Instead, it ordered a new trial and that lies at the heart of the case, the course that was taken. That leads to the second aspect, your Honours, the reasons why the Court of Appeal ordered a new trial and in relation to those reasons, we contend that they demonstrate a failure on the part of the majority to apply this Court’s decisions on advocate’s immunity, on the one hand, and, on the other hand, an undesirable, in our submission, attempt to blur the edges of it.

May I go to the first of those matters. The allegations made by the respondent, first of all, as set out in the statement of claim, appear in the respondent’s submissions and in other places, but if I could go to page 257 in paragraph 3. That is taken directly from the statement of claim. I would mention that paragraphs 3(c) and (g) were not pressed and (l) and (m) failed at trial. If I could ask your Honours to hold, as it were, that page for a moment and to go to page 180 as well and paragraph 100. Your Honours will see there essentially the test which was decided upon by the Court in D’Orta-Ekenaike and your Honours will see the test being “work done out of court which leads to a decision affecting the conduct of the case in court” or, as it was suggested synonymously, “work intimately connected with work in a court”.

Your Honours, if one applies that test to the allegations to which I have referred at page 257 – I will not read them out, of course – and goes through them item by item, in our submission, it is clear that advocate’s immunity applied, we would submit, to all of them or, to put it at the lowest, almost all of them. Your Honours, the case had reduced a little in the Court of Appeal because in the Court of Appeal counsel appearing for the respondents was asked what conduct was relied upon and asked to put it in writing, and that was done. Your Honours will see the response set out in the reasons for judgment of Justice Giles at page 157, the quotation in paragraph 21.

Your Honours, if one goes to what is said in those three paragraphs, at the heart of them is work done, work not done, work that should have been done, which would influence the conduct of the case in court. Your Honours will see, in paragraph a, a brief to be relied upon, the brief to advise on the correct method of calculating damages and so on. All of that, your Honours, goes to conduct in court. Your Honours will see at paragraph b, preparing what evidence was consequentially required and in paragraph c, unpreparedness in the conduct of the case in court. Your Honours, we would submit that there was no reason why the Court of Appeal could not, as Justice Ipp did, commencing at page 183 in paragraphs 111 through to 126, apply the principles of advocate’s immunity to the contentions of the respondents as identified.

Could I go then, your Honours, to the second aspect to which I earlier referred, the reasons why the majority ordered a new trial, and those reasons are, with respect, insubstantial. There were several grounds relied upon. Could I go first to Justice Beazley at page 151. The relevant paragraphs – if I could tell your Honours what they are first – are paragraphs 2, 5 and 8. Your Honours will see at paragraph 2 her Honour said:

the content and extent of the principle of advocate’s immunity and its application in a particular case is both problematic and troubling.

Your Honours, if I could just pause to say, well, that is what courts are there for, actually, to decide those issues, including the question of the ambit of the immunity if that issue should arise. It should be in question. Her Honour then goes on to say in the second sentence in paragraph 2:

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.

Then, your Honours, one sees, if one goes to paragraph 5 on page 152, her Honour refers to two passages just immediately quoted above and says:

Those statements bear the notion of some active decision making being involved.

Then her Honour muses:

If that is correct, it may be that the immunity does not extend to an omission that occurs –

for the reasons there set out. Your Honours, could we just say in passing that if one looks at paragraph 7, D’Orta-Ekenaike, your Honours will see that it refers to acts or omissions in pretty clear terms. Then her Honour says in paragraph 8:

These comments do not necessarily capture the distinction I have made above, nor do they necessarily extend the immunity as far as Ipp JA considers has been done.

Then her Honour says that cannot be decided “without proper findings of negligence”. Your Honours, what was alleged was absolutely clear. It had been stated, alleged clearly, and then in the Court of Appeal stated with great precision by counsel who were appearing at that point and there is no reason, in the matters her Honour has there referred to, why the issue could not have been decided.

Could I go to Justice Giles’ reasons. Your Honours will see at page 163 that his Honour sets out in paragraph 39 some matters – and I will come to them just a little more fully in a moment – which he said were in favour of there being further ascertained facts. Could I say, however, that one does see that in his Honour’s reasons he appears to be applying and as something going to the need for there to be further ascertained facts, a test which is narrower than the test provided for prescribed by the court and/or D’Orta-Ekenaike.

Could I take your Honours to page 157, paragraph 20. Your Honours will recall that the test in D’Orta-Ekenaike was expressed in two ways; work out of court leading to a decision affecting the conduct of the case in court was one way, the other was work intimately connected with the conduct of the case in court. Yet one sees in paragraph 20 and also in paragraph 22 on the next page that the test his Honour is applying is work during and as part of the conduct of the case in court. That expression is used again in paragraph 22. Adopting a test of that kind gives rise to a conceived imperative to have further fact finding to see which side of the line so drawn matters fall upon. Your Honours will see, if one goes then to paragraph 39 at page 163, that his Honour is saying in the second sentence:

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

Your Honours, in relation to the need for ascertained facts or precise facts, could I just say these things. Your Honours will see that at page 153 in paragraph 10 his Honour had accepted, subject to the question of whether

the appeal failed by reason of advocate’s immunity, what had been said by Justice Ipp. If one goes to his reasons, they commence at page 167, paragraph 54, could I just give your Honours these references. One sees from paragraph 54 going through to paragraph 89 is the first part of a very detailed description of the facts and circumstances and then it is taken up again in very considerable detail at page 197 commencing at paragraph 147 going through to paragraph 263.

Could I also say, your Honours, that if one goes to the primary judge’s reasons, whilst there was some complaint about some conclusions not having been sufficiently arrived at, the facts are set out again in very considerable detail by him. Your Honours will see that commencing at page 16, paragraphs 32 through to 135, page 73, paragraphs 136 through to 160 and page 111, paragraphs 172 and 173. Your Honours, what we would say is this. To take just one of the points that were raised, if there was a good point, for example, that advocate’s immunity did not apply because the case, after it had progressed for some time, was compromised and a judgment given in consequence of the compromise, if it be that there had to be a hearing on the merits, as it were, before the principle could apply, why not decide the point? The issue was absolutely clearly raised, if it was an issue, so too were the other questions about advocate’s immunity.

Could I just say this finally, your Honours. Sometimes it is said that special leave should not be granted because all that happened was that an intermediate Court of Appeal ordered a new trial and the applicant might well win the new trial. But, your Honours, here the essence of the complaint is that this is where the nature of the contentions was known, the vice was the ordering of the new trial and a matter which should have been disposed of and resolved in the Court of Appeal was not for reasons which, in our submission, were insubstantial.

FRENCH CJ: Thank you, Mr Jackson. Yes, Mr Douglas.

MR DOUGLAS: If it please the Court, in our submission, the gravamen of the majority’s decision in the Court of Appeal can be found on page 164 of Justice Giles’ judgment. He sets out that:

The negligence alleged by the [defendants] includes failure to obtain advice as to prospects of success prior to the commencement of the proceedings, and more particularly failure as part of obtaining that advice to consider the correct basis for damages.

Now, that was an express stipulation in the retainer. If you go back to page 18 of the application book you will find that the engagement letter is set out and at page 19, under the heading “Preliminary Opinion by Counsel”, it says:

Prior to the commencement of proceedings, we will obtain on your behalf a preliminary written opinion on your prospect of success from the barrister whom we would brief in the matter. We reserve the right to terminate or vary the basis of your representation upon consideration of counsel’s preliminary opinion.

In Justice Patten’s judgment at paragraph 40 on page 22, he finds that they did not obtain a written opinion from counsel, although there was a letter of 7 April 1994 which is not a formal opinion, but you will note the last sentence where counsel is mentioned, “you know to be briefed at the hearing of this matter, shares our opinion”. No case so far in the High Court or elsewhere has decided that advice prior to suit falls within the scope of the advocate’s immunity and if it does, then what is left of the possibility of bringing proceedings against a firm of solicitors if they do not, in fact, seek advice from counsel prior to the suit?

The cases that my learned friend has taken the Court to all involve out of court work intimately connected with the conduct of the cause which is being embarked upon. They do not involve the giving of pre-trial advice or the failure to adhere to an undertaking in the solicitor’s retainer letter to give such advice. There is a decision of Justice Harrison of the Supreme Court referred to by Justice Giles in paragraph 38 of his judgment at page 162 where it said:

the advice that it is alleged ought to have been given by the defendants was not connected with the conduct of the first proceedings but rather related to the question of whether or not they should have been brought to an end. That did not involve a forensic decision about how the case was to be conducted.

and so on. That is only one of the examples which is referred to by Justice Giles. In paragraph 40 he makes the point:

It may not be easy to see a clear line between work done prior to the commencement of proceedings, such as advice on the prospects of success or on appropriate defendants and causes of action, and the conduct of the proceedings.

Going back to paragraph 41, he sets out allegations relating to the failure to properly prepare the matter for a hearing. There would be an issue in relation to that as to whether that fell within the scope of the advocate’s immunity. But dealing with the first category of negligence, the issue would be, would it not, whether if in fact advice had been obtained from counsel, as contracted by the solicitors, whether in fact any of the disasters would subsequently befell, the plaintiff’s case would have occurred. The evidence was given by counsel in the proceedings before Justice Patten in which he effectively said that if he had been asked to give such advice, he would have advised about issues of liability and about issues of damages. We have been given a retrial. How a new judge deals with that evidence and the other evidence in the case will be a matter for that new judge. If there are no facts as found – and that was really the reasoning underlying what Justice Giles said in paragraph 42 where he says:

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 Commission for Railways (NSW) [1964] hca 69; [1964] HCA 69; (1964) 112 CLR 125 is conventionally cited is not achieved. As Ipp JA has pointed out, with reference to Keefe v Marks, fine distinctions should not be drawn and the immunity cannot be circumvented by the construction of allegations of damage. Fully appreciating that, in my opinion it cannot properly be determined on appeal that advocate’s immunity applies so as to provide a complete defence to the appellants’ claim against the respondent.

He says in paragraph 43:

As I have said, it may be that not all the breaches on which the appellants rely would have causal significance. The respondents sought to categorise them in such a way that, in their submission, the breaches would not have caused loss of the opportunity to recover damages from Egan. That too depends, in my view, on a clear understanding of what occurred and of the respect or respects in which there was negligence, and causation also cannot properly be determined on appeal on what amounts to an hypothetical basis.

It may be that in the end it will be held that the appellants’ claim is defeated by advocate’s immunity. They no doubt will take advice. However, for the reasons above a new trial should be ordered.

In our respectful submission, those are perfectly appropriate reasons why a new trial should be ordered. My learned friend is seeking to have this matter come up virtually on a demurrer to say that on no possible basis could our case against the solicitor succeed because on any possible finding of facts by the new trial judge the immunity would apply to the negligence alleged. Unless there is something further I can say, those are the submissions we would wish to say in response.

FRENCH CJ: Thank you, Mr Douglas. Mr Jackson, in reply?

MR JACKSON: Your Honours, our learned friend’s argument that the fundamental reason or underlying reason why the matter was ordered to go back was that the case deals with an opinion as to prospects of success of litigation yet to be instituted. If one goes to page 157 and to paragraph 21 of the reasons for judgment of Justice Giles, that is where there is set out the case that was maintained by my learned friend, Mr Bennett, in the Court of Appeal. There has been a trial, this is an appeal and your Honours will see then that the summary of what should have been done by the solicitor was set out as follows:

1. Either delivered a brief to counsel to advise on what should be relied upon as the correct method of calculating damages or properly and carefully considered this issue himself in relation to the possible alternative methods –
   

of calculating damages, “Acted on”, to put it shortly, that advice “by particularising the damages”, et cetera, and preparing the evidence, and –

100. Either delivered a brief to counsel to advise whether (and, if so, how) that advice or conclusion was affected by the Barclays deed –
     

which was the personal liability to the bank –

and what arguments should be put and evidence tendered in relation to it or properly and carefully considered that issue himself.

Your Honours, that is a question relating to how the case should be conducted in court.

HAYNE J: Is there not a time question which is left unresolved in a, b, c, when the advice should have been taken?

MR JACKSON: Yes, there is, your Honour, I accept that. There are a number of time questions, but the nature of the question was such and the basic findings, the basic facts, had been found in relation to this because your Honours will recall that – if one goes back to page 22, paragraph 40, you will see advice given, advice relating to prospects of success. You will see a little later – I do not have the reference immediately here – the discussion about whether damages should or not should be – it is absolutely clear the stages of the litigation.

Your Honours, it may be that in the end the issue would have been decided against us, but the issue, with respect, was able to be decided and should have been decided. Your Honours, if there were difficult questions of law, that was a matter for the Court of Appeal. Your Honours, if the questions of law are sufficiently difficult, perhaps that militates in favour of the grant of special leave.

FRENCH CJ: Thank you, Mr Jackson.

In our opinion the decision of the Court of Appeal to remit the matter for retrial does not give rise to a question which warrants the grant of special leave. The question of the scope of the advocate’s immunity can await full factual findings. Special leave will be refused with costs.

AT 10.29 AM THE MATTER WAS CONCLUDED