Ferguson J applied D’Orta-Ekenaike v Victoria Legal Aid  HCA 12 to dismiss the appeal against summary judgment of fees on the basis there was not an arguable defence because the advocate was entitled to immunity:
One of the principal issues that the High Court considered in D’Orta-Ekenaike was whether the Court should reconsider its decision in Giannarelli v Wraith. It was held in Giannarelli that at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of the case in court.
In D’Orta-Ekenaike the applicant sued the barrister and solicitor who had represented him in a criminal matter. He alleged that the lawyers had breached the duties owed to him (either contractually or at law) and that, as a result, he had suffered loss. The primary judge ordered that the proceeding be stayed because the immunity defence principle applied. The majority of the High Court held that the immunity of advocates continues to apply in Australia. It applies whether the suit is for negligence or otherwise. Gleeson CJ, Gummow, Hayne and Heydon JJ stated that the central justification for the immunity is that controversies, once resolved, are not to be re-opened except in a few narrowly defined circumstances. Their Honours stated:
This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as the result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the re-opening of controversies would exist, but one of an inefficient and anomalous kind.
Counsel for Foster James also relied upon the following sentence from the judgment of McHugh J:
Accordingly, the immunity should extend to any work, which, if the subject of a claim in negligence, would require the impugning of a final decision of a court or the re-litigation of matters already finally determined by a court.
That sentence should be read in the context of the whole of his Honour’s judgment, and the particular matters that his Honour was considering when making that statement. In that part of his judgment, his Honour was considering whether the immunity could apply to decisions made out of court and whether a distinction should be drawn between the role of a solicitor and a barrister when advising a client regarding the entering of a plea. Read in that context, I do not regard his Honour as having purported to relevantly restrict the boundary of the immunity. Further, as counsel accepted, the joint judgment in D’Orta-Ekenaike does not go that far.
Counsel also referred to Francis v Bunnett. In that case, a client sued her solicitor for breach of retainer in negligence in respect of a claim that had been settled prior to trial. Lasry J refused to strike out the claim because it was arguable that
where advocates resolve proceedings before trial and there is no quelling of the controversy by the exercise of judicial power involving the determination of the issues in the case, such activities and the work connected with them may fall outside the immunity articulated in D’Orta-Ekenaike.
That case is distinguishable from the present. There had been a settlement before trial and there was no determination by the Court of the dispute on the merits.
Francis v Bunnett was referred to by the Court of Appeal of the Supreme Court of Western Australia in Alpine Holdings Pty Ltd v Feinauer. The court there held that it was arguable that certain claims against an advocate would not fall within the immunity. Those claims related to advice about a settlement offer and advice to plead and pursue a cause of action or head of damage which, as a matter of law, was doomed to and did fail. The court held that the claim should not be struck out at an interlocutory stage.
Counsel for Foster James also cited MM & R Pty Ltd v Grills as authority for the proposition that there are circumstances in relation to the conduct of a case in court where the immunity would not apply. Cavanough J held that it was at least arguable that lawyers could be found liable for conduct amounting to sheer delay or mere inaction. His Honour was there concerned with allegations of delay in the conduct of litigation and failure to comply with directions for steps in the proceeding. That is something quite different from the issues raised by Foster James in this proceeding.
In Maurice Blackburn v Burmingham, Maurice Blackburn sued Mr Burmingham for legal fees under a costs agreement. Mr Burmingham represented himself.
Byrne J listed Mr Burmingham’s allegations against the solicitors under a series of headings including ‘general competence and the retainer of counsel’ and ’preparation of the case for trial’. After referring to the immunity of advocates, his Honour stated:
A brief survey of Mr Burmingham’s list of complaints shows that, for the most part they fall within this principle. Accordingly, no defence may be raised based upon them.
His Honour continued:
More particularly, however, none of the allegations, except one, has been made out.
Counsel for Foster James relied upon earlier passages in the judgment. In those passages, his Honour stated that Mr Burmingham’s defence contained allegations that he had suffered loss and damage, although his Honour did not see the pleading as a counterclaim. His Honour tried to assist the parties by identifying the allegations in the defence. They included questions as to whether items of work in the solicitors’ bill were authorised or whether they were performed competently or otherwise in breach of contract as Mr Burmingham had alleged. Counsel submitted that having regard to the nature of the matters raised by Mr Burmingham, what his Honour was saying in the passage above was that if the complaints were raised properly, they would amount to a claim against the solicitors in relation to work performed in court and the immunity would apply. It was submitted that otherwise the case is not consistent with Giannarelli and D’Orta-Ekenaike. It was contended that if the case is authority for the proposition that a party cannot raise a defence in relation to conduct that is otherwise covered by the immunity, then it is wrong. It was submitted that at the very least his Honour’s observations must be understood to apply only to circumstances where the raising of the defence would involve a re-opening of the controversy in which the barrister acted in order to be consistent with D’Orta-Ekenaike. I do not interpret his Honour’s reasoning in the limited fashion suggested by Foster James’ counsel. It seems to me that his Honour did hold that the immunity applies in circumstances where a client is sued by his lawyers for fees and the client seeks to raise a defence based on allegations of negligence or breach of duty in performance of work to which the fees relate.
Brisbane Barrister – David Cormack