Background
The underlying proceedings concerned a common law claim (the Claim) brought by the applicant against her employer (the Employer) as a result of an injury she sustained to her back while working as a legal secretary.
The applicant retained a law firm (the Firm) to represent her in the Claim. Prior to the trial, the Firm engaged an ergonomist to produce an expert report regarding the circumstances in which the applicant was injured. In that report, the ergonomist opined the system of work in which the applicant was engaged was unsafe although he would require a physical inspection of the workplace if the matter proceeded to a hearing.
Despite the report having been served and the ergonomist listed as a witness, he was not called to give evidence at trial and his report was not tendered. Consequently, counsel for the Employer invited the jury to infer the ergonomist’s evidence did not assist the applicant’s case.
The Claim was ultimately dismissed and the applicant ordered to pay the Employer’s costs.
The applicant subsequently instituted proceedings against the Firm alleging negligence in their preparation for and conduct of the Claim in particular by failing to:
- Seek an appropriate expert report to establish liability on the part of the Employer;
- Engage the ergonomist in a timely manner; and
- Address deficiencies in the ergonomist’s evidence, namely his failure to discuss the applicant’s injury, conduct a site visit and prior judicial criticism he received as an expert witness in a previous case. These deficiencies allegedly resulted in the ergonomist not being called as a witness in the Claim.
The Firm denied any breach of duty, asserting it obtained an expert report on liability, the ergonomist’s report was not deficient in any way, and it intended to call the ergonomist as a witness right up to trial, at which point it reasonably relied on the advice of Counsel in not calling him. In any event, the Firm argued advocate’s immunity constituted a complete defence to the applicant’s professional negligence claim.
In February 2022, the Firm filed an application for summary dismissal on the basis advocate’s immunity applied. That application was dismissed with Carmody J concluding the Firm’s failure to obtain an expert report on the issue of liability in a timely manner was not protected by advocate’s immunity. Accordingly, in circumstances where the ergonomist clearly indicated he required an inspection of the workplace if the Claim proceeded to trial and the Firm failed to organise that inspection despite being in a position to do so, the applicant’s claim was held to be of sufficient merit to defeat the application for summary dismissal.
The primary decision
The County Court heard and dismissed the professional negligence claim in late 2023. His Honour rejected most of the applicant’s allegations against the Firm and relevantly held:
- The decision not to call the ergonomist was one for counsel and as such the Firm had not breached its duty in failing to ensure the ergonomist was called;
- However, his Honour did note counsel’s evidence suggested that had the Firm exercised reasonable care, it would not have selected the ergonomist as an expert from the outset as he had previously been discredited by adverse judicial criticism. On that basis, the trial judge proceeded to assume, without deciding, the Firm had breached its duty of care to the applicant;
- Nonetheless, even if the Firm had breached its duty of care, its engagement of the ergonomist was protected by advocate’s immunity and therefore the claim must fail.
The applicant appealed that decision to the Victorian Supreme Court of Appeal.
Issues on appeal
There were several grounds of appeal, including the trial judge erred by failing to find:
- Carmody J’s decision was a final determination of the issue of advocate’s immunity;
- The ergonomist was retained by the Firm as a result of advice given by Counsel; and
- Advocate’s immunity did not apply.
The Firm claimed all grounds of appeal were meritless and even if the applicant was able to establish negligence on its part, she was unable to establish she sustained any loss as a result.
The appeal decision
(i) The summary application
Their Honours found it was unnecessary for Carmody J to determine whether advocate’s immunity did in fact apply, rather the question for determination in the hearing of the summary application was whether the applicant had a real and not fanciful chance of persuading a trial judge that advocate’s immunity did not apply. As such, the trial judge did not err in finding Carmody J’s judgment was not a final determination.
(ii) The ergonomist’s retainer
The applicant submitted there was no evidence about who made the decision to retain the ergonomist, and therefore the trial judge’s statement concerning that matter was no more than supposition. Upon reviewing the evidence, the Court of Appeal supported the trial judge’s observation that counsel was not involved in the decision as the Firm was already in the process of obtaining the subject report or had obtained it at the time counsel were briefed. In any event, the applicant failed to establish that had the trial judge determined the Firm retained the ergonomist on the advice of counsel, his conclusion on the issue of advocate’s immunity would have been any different.
(iii) Application of advocate’s immunity
In light of the Court of Appeal’s findings with respect to loss and damage (see below), it was unnecessary to determine whether the trial judge erred in finding advocate’s immunity applied.
However, the Court of Appeal reiterated the reasoning behind the trial judge’s determination on that point, observing that the trial judge referred to several decisions which confirm the immunity extends to work done by a solicitor outside of court if it leads to a decision affecting the conduct of the case in court,2 and assembling material for presentation at trial was sufficiently connected with the conduct of a case in court to be captured by the protection.3
Consequently, the trial judge concluded the engagement of an expert and issues regarding an expert’s appropriateness, timing of an expert report and questions asked of the expert, fell within the scope of advocate’s immunity.
(iv) The applicant’s loss and damage
The applicant’s claim was for the loss of opportunity to obtain a favourable verdict at the trial of the Claim. Accordingly, she was required to establish, on the balance of probabilities, the Firm’s negligence caused her to lose that opportunity.
The applicant was unable to adduce sufficient evidence supporting the counterfactual, namely there was an appropriately qualified and available expert who would have given evidence in support of her claim and there was a ‘real possibility’ the jury would have returned a different verdict. Consequently, she failed to demonstrate any alleged negligence was causative of her loss.
Summary
This judgment confirms the scope of advocate’s immunity extends to a legal professional’s engagement of expert witnesses and conduct in preparing evidence for litigation.
It reiterates the public policy interest in preserving the finality of judgements and preventing collateral attacks on court decisions.
1 Vivien Hicks v Slater and Gordon Ltd (ACN 097 297 400) [2024] VSCA 298
2 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
3 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 [794] – [797]; Hicks v Slater & Gordon Ltd [2023] VCC 2223 [140] – [144].
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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.
