Background
The applicant suffered an injury to his back in the course of his work as an apprentice electrician. He retained the respondent solicitor to provide advice in relation to the injury, and instructed that firm to take steps to bring a claim for damages at common law against his former employer.
In Victoria, an injured worker seeking common law damages for an injury sustained during the course of employment must apply to the Victorian WorkCover Authority (VWA) for a serious injury certificate for general damages and/or economic loss. If the VWA refuses the application, the injured worker may then make an application to the County Court for a serious injury certificate and for leave to bring a proceeding for damages at common law.
The respondent made an application to the VWA for a serious injury certificate for economic loss, which was rejected. The applicant subsequently instructed the respondent to issue a serious injury application in the County Court seeking a serious injury certificate, and leave to issue proceedings for general damages and economic loss (the serious injury application).
The serious injury application was heard by Judge Pillay of the County Court. His Honour granted a serious injury certificate with respect to pain and suffering, but dismissed the application for leave to pursue damages for economic loss, on the basis that the applicant had not established his earning capacity was affected by the statutory requirement of 40%. The applicant appealed against the decision, which was dismissed by the Court of Appeal.
The proceedings
The applicant issued proceedings against the respondent for professional negligence. The applicant alleged his failure to obtain a serious injury certificate for economic loss was a direct consequence of the respondent’s negligence in failing to provide the County Court with evidence which would have established an impairment to his earning capacity of at least 40%. As a consequence of the alleged negligence, any common law proceeding brought by the applicant against his employer was confined to damages for pain and suffering only.
The applicant claimed damages as follows:
- Loss of the prospect of recovering damages with respect to loss of earning capacity; and
- Loss and damage in filing the Court of Appeal proceeding in an attempt to overturn the decision of the County Court.
The respondent denied it was negligent and also relied on advocate’s immunity as a complete defence to the claim.
Application for summary judgment
The respondent applied for summary judgment on the basis that the doctrine of advocate’s immunity applied to the conduct that underpinned the claims in the proceeding, and this was a complete defence to the claim.
The respondent submitted the negligent conduct alleged by the applicant fell within the scope of advocate’s immunity, as the claims in the proceeding were premised on an allegation that the result in the serious injury application would have been different had the applicant’s case been properly prepared and presented.
Associate Judge Daly of the Supreme Court of Victoria acknowledged the weight of authority was overwhelmingly in favour of the conclusion that work connected with the preparation and presentation of evidence in court attracts the defence of advocate’s immunity. It was beside the point that the decision in the serious injury application arose from the failure to adduce evidence, as opposed to the situation where evidence was adduced, but not accepted by the court. A solicitor’s decision not to adduce evidence may arise from a forensic decision, such that it is still work intimately connected with the conduct of the case in court.
Her Honour also rejected the submission that advocate’s immunity did not apply because Judge Pillay did not make a positive factual finding but instead held he could not make a factual finding because of the absence of any evidence about the respondent’s potential earnings. Her Honour held that Judge Pillay did make a positive finding, in circumstances where he found the applicant had not established he had suffered a loss of earning capacity of 40% or more.
In ordering summary judgment, her Honour found that the work done in preparing and calling the loss of earnings evidence was work which was intimately connected with work done in court. As framed, the negligence claim amounted to an impermissible attack on the judicial determination of the serious injury application previously heard and determined by the County Court.
The appeal
The applicant sought to appeal her Honour’s decision in the Supreme Court of Victoria.
The primary point raised by the applicant on appeal was that the determination made in the serious injury application was not one that could attract the immunity.
The applicant submitted that the underlying rationale for advocate’s immunity was directed to finality of litigation, addressed to a cause of action. An application for leave to bring proceedings through a serious injury application is properly characterised as a ‘gateway’ application through which a prospective plaintiff seeking common law damages must pass. It does not, for example, determine the parties’ liability or the quantum of the claim; that is left to be determined in any subsequent common law proceeding.
Accordingly, the applicant submitted the decision made in the serious injury application did not meet the finality of litigation principle, which underpins the doctrine of advocate’s immunity because it did not resolve the cause of action.
The respondent argued that the distinction between final and interlocutory decisions was an erroneous distinction which misapprehended the basis of the advocate’s immunity principle.
The Court agreed the serious injury application was an interlocutory application, which resulted in an interlocutory order being made. However, it found that advocate’s immunity also applies when an issue has been finally decided by the exercise of judicial power.
It held that whether advocate’s immunity applies to a determination is assessed by reference to if there has been the quelling of a controversy by the exercise of judicial power, and not by reference to whether the decision is an interlocutory one. Although the serious injury application is properly characterised as a ‘gateway’ to the right to bring a common law claim, the Court held the determination in the application quelled a controversy by the exercise of judicial power; the controversy being whether the applicant met the threshold to pursue a common law claim.
The Court therefore dismissed the appeal and rejected the applicant’s contention that the interlocutory determination in the serious injury application was not one which attracts advocate’s immunity.
Conclusion
This decision provides a useful reminder that advocate’s immunity can apply in certain interlocutory applications where a controversy between the parties is finally decided by the exercise of judicial discretion. As the Court found on appeal, where a decision is an interlocutory one, when considering whether the determination will attract advocate’s immunity the relevant consideration is the quality and characterisation of the exercise of judicial power in quelling a controversy. The decision also confirms that the doctrine is not limited to final orders in respect of a cause of action and extends to discrete issues between the parties that are finally determined.
1 [2024] VSC 440.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
