R S Hulme J:

187 It was submitted on behalf of Mr Donnellan that, even if it were found that there were breaches of duty by him that caused or contributed to loss suffered by Mr Woodland, he was not liable to compensate Mr Woodland by reason of the doctrine of advocate’s immunity. I disagree.

188 In D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [86]; (2005) 223 CLR 1 at p31 the majority of the High Court embraced the remarks of Mason CJ in Giannerelli v Wraith (1988) 165 CLR 543 at 560 to the effect that the immunity encompasses work done in court or “work done out of court which leads to a decision affecting the conduct of the case in court” or, to express the same test differently, “work intimately connected with” work in a court. Mason CJ had endorsed remarks of McCarthy P in Rees v Sinclair[1974] 1 NZLR 180 at 187:-

… 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.

189 In D’Orta-Ekenaike v Victoria Legal Aid at [151] McHugh J endorsed the same test. At [45] the majority also said that “the central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances”.

190 In this case the conduct of the Defendant about which complaint is made was not concerned with how proceedings against the Council should be conducted but whether such proceedings should be conducted, or later, should continue to be conducted, at all.

191 Clearly advice not to institute proceedings and which was followed could not sensibly fall within the test “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. Nor would the justification for the immunity lead to the conclusion that it did. It is difficult then to see that advice to the opposite effect, viz. to sue, even if also followed, should be protected by the immunity. While it may be said that such advice has a close connection with the proceedings in that the advice may have been a cause of the proceedings being conducted at all, it does not seem to me that, without more, it bears on “the conduct of the case in court” or “on the way that cause is to be conducted”. Furthermore, if the High Court had wanted the immunity to extend to all advice that led to litigation, it would have been very easy to say so. Given the emphasis in the passages to which reference has been made to “affecting the conduct of the case in court” or work “intimately connected with work in a court”, I find it impossible to regard the immunity as encompassing advice given whether to institute proceedings or not merely because proceedings may be, or in fact are, instituted. The references to “conduct of the case in court” and “intimately” make it clear that mere connection or relationship between the conduct that subject of challenge and any litigation is not sufficient.

192 The contrary view, viz. that any advice to sue or that contemplated proceedings would succeed was protected if proceedings ensued would impose a most unsatisfactory conflict of interest on those advising. Assuming advice was followed, if they negligently said, “don’t sue” they would not have the immunity: If they said “sue” they would. Such a result cannot be right.

193The result is not as obvious once one comes to consider advice given during the currency of proceedings. Advice simply, “You will succeed if you press on”, “Discontinue, the case is hopeless”, or something in between, such as “You should accept a verdict for half”, much more readily falls within the description of “affecting the conduct of the case in court” or “work intimately connected with” work in court or “affecting the way” a cause is to be conducted. In D’Orta-Ekenaike v Victoria Legal Aid itself the advice the subject of the decision that immunity applied was to the effect that D’Orta-Ekenaike , who had been charged with rape, did not have a defence to the charge, and that if he pleaded guilty he would receive a substantially lesser sentence than if he contested the charge and was found guilty.

194 Counsel for the Defendant sought to place the immunity on a wider basis. He submitted that:-

The High Court says that the Plaintiff cannot be heard to say that Hamilton J was wrong. The shoe is on the other foot when it comes to the so called second offer, that made late on 16 May 02, for acceptance by close of business on 17 May. Hamilton J found that the offer was capable of acceptance, and that it was unreasonable for Mr Woodland to have failed to accept it. Likewise, and contrary to the opinions of Donnellan and Nichols, Hamilton J held that Council’s conduct was not such as to disentitle it to costs. The High Court says that Donnellan cannot be heard to say that Hamilton J was wrong.”

195 However, this submission takes the matter well beyond what was said in D’Orta-Ekenaike . At [78] the majority drew attention to cases, including assault cases, where issues can be the subject of civil and criminal proceedings and where inconsistent results may ensue, pointing out:

[78] … But in none of those actions was the person who would seek to challenge the outcome reached in some earlier (criminal) proceeding a party to that earlier proceeding.

[79] In cases where a client sues an advocate, the client will always have been a party to the proceeding the result in which is challenged. If effect is to be given to the principle that decisions of the courts, unless set aside or quashed, are to be accepted as incontrovertibly correct, it must be applied at least to the parties to the proceeding in which the decision is given. The final outcome of the proceeding, whether “civil” or “criminal” or a hybrid proceeding, must be incontrovertible by the parties to it.

[80] If that is right, it follows that no remedy is to be provided if its provision depends upon demonstrating that a different final result should have been reached in the earlier litigation. …

196 Their Honours went on to observe that intermediate results and decisions on costs said to have been wasted should not be treated differently, in the case of costs, “lest a dispute about wasted costs becomes the vehicle for a dispute about the outcome of the litigation in which it is said that the costs were wasted” – see at [83].

197 Earlier, at [77], the majority had embraced remarks to the effect that there is a public need “for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”. However these remarks must be seen in context. In addition to the assault and other cases to which their Honours themselves referred, it is not uncommon that in the course of argument earlier decisions are suggested to have been wrongly decided. The sorts of cases to which the High Court was directing its attention – see [67] – [70] – were ones where a plaintiff was seeking to say that, but for an advocate’s conduct, in an earlier case there would have been a different result. The High Court was not deciding that a person not a party to earlier proceedings was bound by it or, in the circumstances of this case, that because Mr Donnellan might want to say that Hamilton J was wrong in his decision concerning the easement or costs, therefore there is immunity and Mr Woodland cannot sue. This is not a case where the remedy Mr Woodland seeks, as was said by the High Court at [80], “depends upon demonstrating that a different … result should have been reached in the earlier litigation”.

198 And though I do not need to decide the issue, it does not seem to me that advice whether to accept or reject the Abbott Tout offer of December 2001 was advice “affecting the conduct of the case in court” or work “intimately connected with work in a court” in any meaningful way. The offer did not refer to the making of orders in Court and although no doubt agreement pursuant to the offer would have resulted in some Court order, be that for the grant of an easement or for dismissal of the proceedings, the nature and circumstances of the advice seem to me to take it outside the breadth of the immunity.

199 Attention was drawn to the decision and remarks in Symonds v Vass [2009] NSWCA 139. In that case Giles JA, with whom Beazley relevantly agreed, said at [26]:-

The rationale enunciated in D’Orta-Ekenaike v Victoria Legal Aid could bring a wide application of the immunity. Whether the work is negligently performed through act or through omission, and whether or not it leads to an overt decision, there cannot be re-litigation in which it is asserted that, but for the negligence, a different result would have been reached. According to the rationale, it does not matter that the client does not seek to overturn the prior result, but uses it as the basis for complaint . The re-litigation is regarded as challenging a lawful result and so as offending the finality principle, distinguished from challenge by appeal because it would be re-litigation “of a skewed and limited kind” ( D’Orta-Ekenaike v Victoria Legal Aidat [45]). (Emphasis added in submissions)

200It was submitted that “Giles JA made the point that neither the Plaintiff nor Defendant in this case can use Hamilton J’s judgment either as a sword or shield. Use of the judgment as a sword, (Hamilton J was right, Donnellan was wrong), invites attack upon the judgment in defence of the allegation. Use of the judgment as a shield, (Hamilton J was right that the first offer did not compel acceptance), invites attack upon the judgment in answer to the defence”.

201 The decision in Symonds v Vass was that in the absence of proper findings of negligence, the Court was unable to determine whether an advocates’ immunity applied in that case. Hence the remarks quoted were obiter. In any event the Plaintiff’s claim here is not that, but for the negligence, a different result would have been reached and, at least so far as the decision concerning the easement is concerned, does not invite re-litigation of the proceedings before Hamilton J. It is not a case whether Hamilton J was right or wrong in declining to order an easement in favour of the Plaintiff. Though not pleaded in these terms, the issue on liability in essence is whether the Defendant’s advice at particular times fairly reflected the state of the law at those times and included appropriate qualifications concerning any risks. The issue on causation is what would the Plaintiff have done if appropriately advised and how does the result of that compare with the result of the decision of Hamilton J.

202The issue so far as costs is concerned is whether the Defendant’s actions or inaction was unreasonable to a degree sufficient to amount to a breach of duty and whether his advice fairly reflected both the law and a reasonable assessment of the circumstances and, again, included appropriate qualifications concerning any risks.

203In D’Orta-Ekenaike at [154] – [156] HcHugh J gave examples of cases where the immunity had been held and not held to exist and counsel made reference to such decisions here. I confess I do not find all of the decisions reconcilable although support for the conclusion at which I have arrived is provided by Dansar Pty Ltd v Pagotto [2008] NSWSC 112. In that case Harrison J held that the immunity did not apply to advice not connected with the conduct of proceedings but to the question of whether or not they should have been brought to an end. His Honour went on to say, at [94]:-

… The present case does not interfere with the principal of finality at all. The decisions in the first proceedings and the second proceedings are not said to have been reached wrongly by any failures on the part of the defendants. It has not become necessary to reconsider those decisions. On the contrary, they are the basis upon which the present proceedings are founded. The plaintiffs contend that if the advice had been appropriately given, the matter would never have reached the stage where there would have been judgments… Similarly, if the appropriate advice had been given, the third proceedings would never have been commenced. Where the principle of finality and the judicial system as part of the governmental structure do not arise, there is no occasion for the application of the doctrine of advocates’ immunity: Donellan v Watson (1990) 21 NSWLR 335 at 337, 343, 344 and 347.

204In Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85, there are a number of statements by Steytler P and Newnes AJA along similar lines although the nature of that case was such that no definitive statement by their Honours was required.

205In short the conclusion at which I have arrived is that advocates’ immunity does not operate so as to preclude Mr Woodland succeeding in his action against Mr Donnellan for the advice he gave on or about 8 January 2002 and his failure then to correct earlier advice.


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