Expert witness liability / immunity: Consideration of Attwells

With thanks to Tim Bowen for pointing out yesterday’s decision in Chalk v Larder [2017] QDC 308 which concerned an application by the defendant to strike out the plaintiff’s claim and whether the defendant has immunity as a witness in the proceedings in respect of the claims advanced.

Against the background of family law proceedings, the claimant alleged that the defendant misrepresented to her that he was qualified to provide an expert opinion on the risk of “incestuous sexual recidivism” in respect of the claimant’s partner and his behaviour involving their son.

The court held that with one exception (relating to whether the statement of claim pleads conduct which is arguably in trade or commerce), the defendant made good his claims for immunity and other matters, such that the claim should be struck out.

On the immunity question the court referred to D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 and the cases which followed it including Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1. The defendant gave evidence in court (in report form).

The passage at [45] – [51] is worth setting out in full. The trial judge interestingly took the view that despite Attwells, a judicial determination need not in fact occur:

  1. Second, the plaintiff contended that the immunity did not apply because the representations were not contained in evidence given by the Defendant that affected a judgment in the family law proceedings.  The plaintiff sought to make good that proposition as follows:

    (a)          Attwells v Jackson Lalic Lawyers Pty Ltd [9] supports the proposition that the only rationale for advocate’s immunity is to preserve the finality of judgments;

    (b)          Accordingly, the immunity only arises where conduct by the advocate affects the finality of a judgment;

    (c)          The same rationale informs witness immunity and therefore witness immunity only applies where evidence is given by the expert which affects the finality of a judgment; and

    (d)          The evidence of Mr Larder did not affect a judgment and therefore it does not attract immunity.

  2. This analysis is erroneous. In Attwells, the High Court was concerned with the question of whether advocate’s immunity applied to advice to settle proceedings. The majority reviewed the rationale for advocate’s immunity as articulated in D’Orta-Ekenaike being the finality of judicial determinations.  Their Honours then observed (footnotes omitted):

    [37] The foregoing is a sufficient basis to reject the appellants’ invitation to reconsider the decisions in D’Orta and Giannarelli. At the same time, however, this review of the reasons of the plurality in D’Orta, and the identification of the public policy on which the immunity is based, serve to show that the scope of the immunity for which D’Orta and Giannarelli stand is confined to conduct of the advocate which contributes to a judicial determination.

    Extending the immunity to compromises

    [38] It is apparent from the passages set out above from D’Orta that it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attracts the immunity. Because that is so, the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court. In particular, the immunity does not extend to advice that leads to a settlement agreed between the parties. As McHugh J said in D’Orta:

    “[I]t is possible to sue a practitioner for the negligent settlement of proceedings or for the negligent loss or abandonment of a cause of action … even though there is a public interest in the finality achieved through the statutes of limitations and the promotion of out-of-court dispute settlement. But where a trial has taken place, as the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ demonstrates, public confidence in the administration of justice is likely to be impaired by the re-litigation in a negligence action of issues already judicially determined.”

    [39] While the plurality in D’Orta did not state explicitly that advice leading to an out of court settlement was outside the scope of the immunity, it is apparent on a fair reading of their Honours’ reasons that the rationale of the immunity does not extend to advice which does not move the case in court toward a judicial determination.

    [40] The respondent relied upon the decision of the Court of Appeal of New Zealand in Biggar v McLeod to support the contention that the immunity does extend to an agreed settlement of proceedings after a hearing has commenced. In that case, it was said that:

    “The giving of advice as to the compromise of proceedings, involving as it does the question of their continuation or termination, is an inherent feature of the conduct of the cause by counsel.”

    [41] But to say that is not to identify conduct by counsel which affects the judicial determination of the case. This expansive view of the scope of the immunity was expressed by a court in New Zealand before the immunity was abolished in that country by the decision of the Supreme Court of New Zealand in Lai. It may be observed, with the greatest respect, that by allowing an expansive view of the scope of the immunity so that its operation was wider than was “absolutely necessary in the interests of the administration of justice”, the decision in Biggar effectively strengthened the case for the abolition of the immunity in New Zealand. To accept that the immunity extends to advice which leads to a settlement of litigation is to decouple the immunity from the protection of the exercise of judicial power against collateral attack. Such an extension undermines the notion of equality before the law by enlarging the circumstances in which lawyers may be unaccountable to their clients.

    [46] Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the “intimate connection” between the advocate’s work and “the conduct of the case in court” must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an “intimate connection” between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate’s work and the client’s loss; rather, it is concerned only with work by the advocate that bears upon the judge’s determination of the case.

  3. As I understand the plaintiff’s analysis, it seek to extract from Attwells the proposition that immunity will only arise if there is in fact a judicial determination in the proceedings. I do not think it arguable that Attwells stands for that proposition. So much is clear in my view from the passages underlined in the above quotation which demonstrate that the focus is on whether the conduct is connected with the process leading to judicial determination, not whether there was in fact a judicial determination.
  4. Further, that the majority did not intend to create such a confined scope for advocate’s immunity is also evident plain from the summary of the majority decision at [1] to [6], where their Honours observed (footnotes omitted):

    [1] In these proceedings, the appellants claim that earlier litigation to enforce a guarantee was settled on terms unfavourable to the first appellant as a result of the negligent advice of the respondent, his solicitor at the time. The respondent has raised the advocate’s immunity from suit as a complete answer to the appellants’ claim. The respondent contends that the advocate’s immunity extends not only to negligent advice which leads to a final judicial determination, but also to negligent advice which leads to an agreed settlement.

    [2] In D’Orta-Ekenaike v Victoria Legal Aid, this Court held that the advocate’s immunity from suit under the common law of Australia in respect of his or her participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in court. In reaching that conclusion, the Court declined to reconsider its earlier decision in Giannarelli v Wraith, in which it was held that the advocate’s immunity extends to “work done out of court which leads to a decision affecting the conduct of the case in court.” That extension of the scope of the immunity was justified by the view that, as Mason CJ said: “it would be artificial in the extreme to draw the line at the courtroom door.” But the immunity was not extended to all work in any way connected to litigation. Mason CJ explained:

    “Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said:

    ‘… the protection exists only where the particular work is 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 is to be conducted when it comes to a hearing.’”

    [3] This statement of the scope of the immunity by Mason CJ was confirmed in D’Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity:

    “there is no reason to depart from the test described in Giannarelli as work done in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’ or … ‘work intimately connected with’ work in a court. (We do not consider the two statements of the test differ in any significant way.)” (Footnotes omitted)

    [4] The present case raises the question whether the immunity extends to negligent advice which leads to the settlement of a case by agreement between the parties. The appellants contend that D’Orta does not support that extension. In the alternative, they argue that the immunity should be abolished.

    [5] The abolition of the immunity would require this Court to overrule its decisions in D’Orta and Giannarelli. For the reasons which follow, the appellants’ argument in this regard should be rejected. On the other hand, the appellants’ argument as to the scope of the immunity should be accepted. The authoritative test for the application of the immunity stated in D’Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute. No doubt an advice to cease litigating which leads to a settlement is connected in a general sense to the litigation which is compromised by the agreement. But the intimate connection required to attract the immunity is a functional connection between the advocate’s work and the judge’s decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. Both D’Orta and Giannarelli were concerned with claims which impugned a judicial determination to which the allegedly negligent work of the advocate contributed. As will be seen from a closer consideration of the reasoning in D’Orta, the public policy, protective of finality, which justifies the immunity at the same time limits its scope so that its protection can only be invoked where the advocate’s work has contributed to the judicial determination of the litigation.

    [6] In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties’ agreement was embodied in consent orders.

    (underlining added)

  5. Again it is plain in my view from the passages underlined that the test for advocate’s immunity was not limited to those circumstances where a judicial determination in fact occurs.  That is sufficient to dispose of the plaintiff’s second contention.  However, there are other aspects of the plaintiff’s second contention which are problematic as a matter of principle:

    (a)          First, I do not think it is correct that the rational for witness immunity is limited to the finality of judgments.  I do not read [41] from D’Orta-Ekenaike set out above as necessarily excluding the other rationales for witness immunity identified in that paragraph[10].  Their Honours appeared to refer with approval to Lord Mansfield’s additional observation that the immunity is “to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences”;

    (b)          Second, even if the decision in Attwells stood for the proposition advanced by the plaintiff in respect of advocate’s immunity, it would be inconsistent with the statement of principle as to witness immunity in D’Orta-Ekenaike, which must be applied unless and until the High Court sets a different course;

    (c)          Third, the effect of Rule 15.61(2) Family Law Rules would be to confer a statutory immunity equivalent to that which would be attracted if the report was given as oral evidence at a trial. It is not an element of this statutory immunity that there must in fact be a trial, much less a judicial determination following a trial; and

    (d)          Fourth, the case advanced by the plaintiff would produce the remarkable outcome that an expert retained as an expert witness who produced a report which was tendered at trial would not have immunity if a case settled during the trial but would have immunity if the case did not settle.  That seems an unusual outcome to say the least

  6. There is also a problem for the plaintiff arising from the facts alleged in the statement of claim.  The underlying premise of the plaintiff’s second contention is that there was no judicial determination affected by the reports. Paragraphs 12, 27 and 33 appear to allege the contrary.
  7. For these reasons, I consider that the defendant has a good defence based on witness immunity to the claims as currently formulated in the statement of claim and the statement of claim should be struck out.



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