CPZ v DHF[2017] QDC 308

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   The plaintiff (CPZ) alleges that she was a party to custody proceedings between 2009 and 2014 in the Federal Magistrates Court (as that Court was known at the relevant time) and then in the Family Court of Australia (the Proceedings). The other parties were her husband (BMS) and the Independent Children’s Lawyer on behalf of their son.
2. [2]
   She alleges, that the defendant (DHF), mispresented to her that he was qualified to provide an expert opinion on the risk of “incestuous sexual recidivism” by BMS towards Caleb. She alleges that those misrepresentations arose by implication from Mr Larder accepting a brief from Mr Plasto to provide an expert report on that matter and by delivering such three reports. She alleges she suffered loss and damage from 7 January 2011 by that misleading conduct and other similar conduct relating to a further report, in the form of legal costs unnecessarily incurred. She claims to be entitled to damages or compensation under sections 236 or 237 of the Australian Consumer Law as contained in Schedule 2 to the Competition and Consumer Act 2010(Cth)  (the ACL (Cth)) or sections 99 or 100 of the Fair Trading Act 1989 (Qld).
3. [3]
   The defendant applies to strike out the claim and statement of claim and for the proceedings to be dismissed on four grounds:

   1. (a)
      First, on the basis that DHF has immunity as a witness in the Proceedings in respect of the claims advanced;
   2. (b)
      Second, because the statement of claim does not plead facts to sustain certain  elements of the statutory causes of action relied upon;
   3. (c)
      Third, because the claims are statute barred; and
   4. (d)
      Fourth, because the statement of claim fails to articulate a proper causal link between the alleged misleading conduct and the loss claimed.
4. [4]
   With one exception (relating to whether the statement of claim pleads conduct which is arguably in trade or commerce), the defendant has made good each of those grounds. The Claim and Statement of Claim should be struck out.

The application 

5. [5]
   The claim and statement of claim were filed on 1 November 2017. On 24 November 2017, the defendant filed this application to strike out the statement of claim and under Rule 171 UCPR and to strike out the claim pursuant to the Court’s implied power and/or section 69(1) District Court Act 1967 (Qld).
6. [6]
   A preliminary point arises as to whether the Court may strike out the pleading prior to the filing of the notice of intention to defend. Rule 135 UCPR provides that a defendant may only take a step before filing a notice of intention to defend with the leave of the Court. The defendant has not filed a defence. The defendant sought such leave. It relied on cases which recognise the power of the Court to strike out pleadings and summarily to dispose of proceedings in appropriate cases and to grant leave under Rule 135 for that purpose.^[1]
7. [7]
   A key factor in deciding whether to grant leave in this case was whether it was in the interests of efficient conduct of the proceedings to require the defendant to defend before bringing this application. While the plaintiff opposed leave, she pointed to no aspect of the application which could not properly be dealt with in the absence of a defence. Further, it did not seem to me that a defence was required for the proper consideration of the matters arising on the application. In the circumstances, therefore, it is appropriate to grant leave.
8. [8]
   As to the application for summary dismissal, this Court has two sources of power to strike out proceedings which are an abuse of the Court’s process. In Basha v Basha[2010] QCA 123 at [23], Fraser JA (with whom Holmes JA and Daubney J agreed) explained the position as follows (footnotes omitted):

As to ground 2(c), counsel for the appellant conceded in his written outline that the primary judge possessed jurisdiction to strike out the proceeding in the “inherent jurisdiction”. The reference to the “inherent jurisdiction” should be understood as a reference to the implied power of an inferior court to strike out a proceeding to prevent abuse of that court’s processor tos69(1) of the District Court of Queensland Act 1967 (Qld),which confers on the District Court the powers and authorities of the Supreme Court for the purposes of exercising its civil jurisdiction, enabling it “in like manner and to like extent” to make any order a Supreme Court judge might in a similar proceeding. Thomas JA held in Quinlan v Rothwellthat the combination of UCPR rr 5(4), 280 and 371reaffirms the Supreme Court’s longstanding powers of dismissal and that those rules co-exist with the Supreme Court’s inherent jurisdiction.Similarly, in the District Court those rules co-exist with the District Court’s power to prevent an abuse of its process.

9. [9]
   That power will arise, inter alia, where proceedings are foredoomed to fail.^[2]However, such power should not be exercised except in the clearest cases, and the same care should be exercised in striking out part or all of a statement of claim on the grounds that it fails to disclose a reasonable cause of action.^[3]   

The Claim and Statement of Claim

10. [10]
    The Statement of Claim provides:

This claim in this proceeding is made in reliance on the following facts:

1. At all material times the Plaintiff was and remains and individual capable of suing.
2. At all material times the Defendant:
   1. was and remains an individual capable of being sued;
   2. was and remains a practicing psychiatrist operating out of 201 Wickham Terrace, Spring Hill QLD 4000; and
   3. was and remains an individual engaged in trade and commerce;
3. At the material times between about 9 March 2009 to June 2014, the Plaintiff was a party to proceedings in the Federal Magistrates Court of Australia (as it was then called) and the Family Court of Australia between her, her ex-husband [...] (BMS), and the Independent Children’s Lawyer (ICL) on behalf of the Plaintiff’s and BMS’s son [...] (the Proceedings).

Particulars

Federal Magistrates Court of Australia and Family Court of Australia proceeding number: (P)BRC 7647/2007.

4. The Proceedings were initiated due to a dispute between the Plaintiff and BMS about the custody of Caleb.
5. The main issue in the Proceedings was the risk posed by BMS towards Caleb of incestuous sexual recidivism due to BMS’s incestuous family history.

The Proceedings

6. In or around 2009, the Defendant was engaged by BMS as an independent expert witness in the Proceedings, to conduct a sexual risk assessment in regards to the risk of incestuous sexual recidivism by BMS towards Caleb.
7. On or about 2009, the Defendant represented himself as an expert witness able to conduct sexual risk assessments in relation to the risk of incestuous sexual recidivism.
8. Between about 2009 to 2011, the Defendant made representations to the Plaintiff, amongst others, that he was an expert, who was appropriately qualified and had maintained relevant continuous education, to give evidence and an opinion in the Proceedings in relation to a person’s risk of sexual recidivism (Representations).

Particulars of the Representations

1. The Defendant made the Representations expressly or impliedly on the following occurrences:
   1. On 10 November 2009, when he issued his first report as described in paragraph 9 herein; and
   2. On 1 July 2010, when he issued his second report as described in paragraph 10 herein; and
   3. On 25 February 2011, when he issued his third report as described in paragraph 14 herein.
2. Insofar as the Representations were made in writing they are reflected in the reports referred to above.
3. Insofar as the Representations were implied, they are implied due to:
   1. The Defendant accepting his engagement as an expert in about 2009 to give evidence in the Proceedings as to BMS’s risk of sexual recidivism towards Caleb, which appointment was notified to the Plaintiff and to the Court;
   2. The Defendant’s duty to the Court when providing expert evidence in the Proceedings;
   3. The specific issue upon which the Defendant was to provide expert evidence, being the issue referred to in paragraph 5 above;
   4. The requirement for the Defendant to be appropriately qualified to give such expert evidence in the Proceedings;
   5. The requirement for the Defendant to maintain relevant continuous education to give such expert evidence in the Proceedings; and
   6. It being apparent to the Defendant and the Plaintiff that the Defendant’s evidence and reports in the Proceedings would be provided to the Court and to the Plaintiff;
   7. The Representations are reasonable to imply due to the matters particularised above.

9. On or around 10 November 2009, the Defendant released his first written report in the Proceedings which, amongst other things, stated that BMS was not a risk to his son as a result of any psychosexual disorder.

Particulars

The first report of the Defendant, dated 10 November 2009. A copy can be provided on request.

10. On or around 1 July 2010 the Defendant released a second written report in the Proceedings (Second Report).

Particulars

The Second Report of the Defendant dated 1 July 2010. A copy can be provided on request.

11. In the Second Report, the Defendant, amongst other things:
    1. reported a risk of BMS committing incestuous sexual recidivism against Caleb to be very low to non-existent; and
    2. failed to state the facts upon which he relied in making his assessment.

Family Court Proceedings

12. On or around 12 January 2011, the lawyers for BMS sent the Defendant a letter informing him that the court on 2 December 2010 had been unable to determine the facts on which the Defendant relied in his assessment in the Second Report, and required him to review and discuss statistics on recidivism surveys in relation to sexual risk.
13. The Proceedings were transferred to the Family Court pursuant to an order dated 10 February 2011 for placement on the Magellan List.
14. On or around 25 February 2011, the Defendant released a third report on the risk assessment of BMS.

Particulars

The third report of the Defendant dated 25 February 2011. A copy can be provided on request.

15. In the third report, the Defendant, amongst other things:
    1. stated that BMS did not present a psychiatric condition that would result in a degree of increased risk of him being of harm to Caleb;
    2. did not refer to having interviewed or examined the plaintiff, so as to give an expert opinion as to her mental health; and
    3. stated that he concurred with an assessment of Dr P Markou in a report dated 15 October 2010 that he said “confirms that Ms Chalk is diagnosed with a mental disorder in the form an “adjustment disorder with anxious mood with significant post traumatic elements” [Page 1 of report, point 2]”.

Further report and the Critique of the Defendant’s Reports

16. On or around 29 September 2011, the Plaintiff retained Dr Lars Madsen to complete a critique of the reports of the Defendant (the Critique).
17. On or about 28 November 2011, the Defendant released a further written report in the Proceedings in relation to, amongst other things, the mental health of the Plaintiff.

Particulars

The report by the Defendant is dated 28 November 2011. A copy can be provided upon request.

18. On 29 November, the Critique was released by Dr Lars Madsen and provided to the Plaintiff and the Family Court.
19. The Critique noted problems with the assessment conducted by the Defendant, which included:
    1. A failure to use any instruments or tools for evaluating risk;
    2. No apparent evaluation of the areas necessary to address within a sex offender risk assessment;
    3. A failure to provide an individualised risk perimeter statement; and
    4. A failure to provide specific risk management recommendations.
20. The Critique also determined that the assessment undertaken by the Defendant could not be considered consistent with what would be described as being the evidence-base for conducting sexual offender risk assessments.

Particulars

The Critique provided by Dr Lars Madsen, dated 29 November 2011. A copy can be provided upon request.

21. Upon requesting the Critique, the Family Court granted leave for both the Plaintiff and BMS to appoint Professor Stephen Smallbone to undertake a competent risk assessment of the risk of incestuous sexual recidivism towards Caleb (Smallbone Report).
22. After being presented with the Critique, the Family Court ordered on 30 November 2011 that BMS attend a risk assessment for potential sex offenders to be conducted by a specialist other than anyone connected with the Forensic Psychology Centre at Paddington, Queensland.
23. On 19 April 2012 the Family Court made an order that BMS “attend upon Professor Smallbone for a risk assessment for potential child sex offenders…”
24. On or around 28 May 2012 the Smallbone Report was released, which considered and referenced sexual recidivism statistics, and determined the possible risk BMS posed to Caleb to be low.
25. On or around 28 May 2012, upon receipt of the Smallbone Report, the Plaintiff discovered that the Defendant was not appropriately qualified to conduct the risk of incestuous sexual recidivism towards Caleb by BMS.
26. On or around 4 June 2012 Plaintiff accepted the opinion of Professor Smallbone and swore an affidavit containing same.
27. In the Reasons for Judgement dated 30 August 2012 by Bell J of the Family Court:
    1. the Court found that the Critique’s criticism of the Defendant’s evidence to date was proper; and
    2. the Smallbone Report was accepted by the Court and BMS.
28. If the first report of the Defendant had been completed by an appropriately qualified independent expert witness who had maintained relevant continuous education:
    1. it is probable that in the report the expert would have considered and referenced relevant sexual recidivism statistics;
    2. it is probable that in the report the expert would have stated the facts upon which they relied in making their assessment;
    3. the Plaintiff would have accepted the possible sexual recidivism risk BMS posed to Caleb to be low; and
    4. the Proceedings would have been resolved on or around 2 December 2010, being the date of the hearing in the Proceedings.

Further Representation

29. On or about 28 November 2011, the Defendant made representations (the Further Representations):
    1. The Defendant had conducted a medico-legal examination of the Plaintiff for the purpose [of] determining the state of the Plaintiff’s mental health; and
    2. The Defendant was able, based on a medico-legal examination of the Plaintiff and other material referred to in the said report dated 28 November 2011, to give a proper expert opinion as to the mental health status of the Plaintiff as at 28 November 2011.

Particulars of the Further Representations

1. The Defendant made the Further Representations expressly or impliedly.
2. Insofar as the Further Representations were made in writing they are reflected in the Defendant’s report dated 28 November 2011, as referred to in paragraph 17 above.
3. Insofar as the Further Representations were implied, they are implied due to:
   1. The Defendant’s duty to the Court when providing expert evidence in the Proceedings;
   2. It being apparent to the Defendant and the Plaintiff that the Defendant’s evidence and reports in the Proceedings would be provided to the Court and to the Plaintiff;
   3. The Representations are reasonable to imply due to the matters particularised above.

Misleading and Deceptive Conduct

30. The Defendant:
    1. Made the Representations and Further Representation to the Court and to the Plaintiff;
    2. Made the Representations and the Further Representations knowing them to be untrue or, alternatively, with reckless indifference to whether they were true or not;
    3. Was not an appropriate and qualified expert able to conduct a sexual risk assessment in regards to the risk of incestuous sexual recidivism by BMS towards Caleb;
    4. Did not conduct a medico-legal examination of the Plaintiff to determine the state of the Plaintiff’s mental health; and
    5. Was not able to give a proper expert opinion as to the mental health status of the Plaintiff as at 28 November 2011.
31. The Representations and Further Representations were made by or on behalf of the Defendant in the course of trade or commerce.

Particulars

The Representations and Further Representations were made in the course of the Defendant’s business as a practicing psychiatrist.

32. In reliance upon the Representations, the Plaintiff did not obtain a competent expert opinion as to BMS’s risk of incestuous sexual recidivism towards Caleb until the Smallbone Report dated 28 May 2012.
33. The report containing the Further Representations were referred to in the Reasons for Judgment dated 30 August 2012 by Bell J of the Family Court as one of the reasons for the decision in the Proceedings on that date.
34. The Representations were false, misleading or deceptive, or were likely to mislead or deceive, in that the Defendant:
    1. was not an expert witness capable to conduct sexual risk assessments in relation to the risk of incestuous sexual recidivism; and
    2. was not appropriately qualified to conduct sexual risk assessments in relation to the risk of incestuous sexual recidivism because the Defendant did not maintain any knowledge in this area.
35. In the premises of paragraphs 30.d and 30.e above, the Further Representations were false, misleading or deceptive, or were likely to mislead or deceive.
36. In the premises of paragraphs 1 to 35 above, the Defendant engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention of section 18 of the Australian Consumer Law at Schedule 2 to the Computer and Consumer Act 2010 (Cth) (the ACL), further or alternatively in contravention of section 38 of the Fair Trading Act 1989 (Qld) (the FTA) (the Contravention).

Loss and Damage

37. As a result of the Contravention, the Plaintiff has suffered loss and/or damage.

Particulars

The Plaintiff was required to continue the Proceedings after the hearing on 2 December 2010, alternatively after the hearing on 7 June 2012, but would not have been put to the cost of doing so in the premises of paragraph 28 above. The Plaintiff incurred legal costs (from D A Family Lawyers and Tedd Jordan of Counsel) totalling $165,367.35 during the period of 7 January 2011 to 18 August 2014

11. [11]
    The particulars thereafter contain a table identifying over fifty invoices from DA Family Lawyers by date and amount covering the identified period.
12. [12]
    The Claim formulates the relief, relevantly, as follows:

1. The Defendant pay an amount to be assessed for the Plaintiff’s loss and/or damages, pursuant to section 236 of the Australian Consumer Law at Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the ACL), further or alternatively pursuant to section 99 of the Fair Trading Act 1989 (Qld) (the FTA);
2. Further or alternatively, the Defendant pay compensation to the Plaintiff for an amount to be assessed, pursuant to section 237 of the ACL, further or alternatively pursuant to section 100 of the FTA;

Witness immunity

Relevant principles

13. [13]
    The defendant submits that the statement of claim should be struck out and the proceedings dismissed because on claims advance are not maintainable in the face of DHF’s witness immunity.
14. [14]
    The principles applicable to witness immunity were recently restated by the High Court in D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at 18-20 ([37]-[[42]) in the judgment of Gleeson, CJ, Gummow, Hayne and Heydon JJ relevantly as follows (footnotes omitted, underlining added): 

Other immunities from suit

Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party’s favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected.

This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the sixteenth and seventeenth centuries.

From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court.It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:

“The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.”

The development of judicial immunity was more complex...What is important to notice for present purposes is not the history of the development of this immunity but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of finality of judgments.

Statements can be found in the cases that the immunity of witnesses serves to encourage “freedom of expression” or “freedom of speech” so that the court will have full information about the issues in the case. Statements also can be found that place the immunity of those who participate in court proceedings on the desirability of avoiding baseless actions being brought against those who were merely discharging their duty, but these considerations are advanced in answer to another kind of argument. As Fry LJ said in Munster v Lamb:

“Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?”

The answer proffered (that it is more necessary to prevent the baseless action than provide for the kind of case described) may well suffice to meet the point. But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises.

In R v Skinner, Lord Mansfield said that “neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office”. Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, “to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences” and “the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment” other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in “the effective performance” of its function by the judicial branch of government.

15. [15]
    Two matters arising from this passage deserve further consideration.
16. [16]
    First, the immunity arises in respect of anyaction for what is said and done in Court. It is not limited to actions in negligence. While such actions frequently provide the context in which the question of witness immunity arises, the immunity is not so confined and applies to all non-statutory claims, including where the evidence given by the witness is deliberately false.^[4]
17. [17]
    Further, the immunity is a doctrine of substantive law. Accordingly, it will provide a defence to statutory claims unless there is clear statutory provision to the contrary.^[5]In  Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268, Beasley JA observed (at [121]):

Thus far, I have been considering AGAL and Mr Ballard's immunity from suit in respect of the pleaded claims in negligence. Mr Griffiths has also pleaded that AGAL engaged in conduct in breach of s52 of the Trade Practices Act (Cth) and that Mr Ballard was knowingly concerned in that conduct. In my opinion, the immunity extends to those claims. There is nothing in theTrade Practices Act (Cth) that provides a basis for excluding the immunity, and as the authorities have repeatedly emphasised, the immunity is absolute unless a matter falls within one of the recognised exceptions, or there is a clear statutory provision that excludes the immunity: seeJamieson v The Queen at 279 [46] supra. There is no such clear statutory exception here.

18. [18]
    The plaintiffs have pointed to no statutory exception in respect of the statutory claims advanced.
19. [19]
    Second, the scope of the immunity is not limited to things said or done in court, it also extends, as the High Court observed in the above passage, to “preparatory steps”. Disputes as to the scope of witness immunity, and indeed advocate’s immunity, frequently relate to the reach of the doctrine in relation to steps taken outside the court room.
20. [20]
    Inthe context of advocate’s immunity, the scope of the doctrine has been articulated by reference to formulation by Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1^[6], the majority observed (footnotes omitted):

[2]In D’Orta-Ekenaike v Victoria Legal Aid¹, 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 inGiannarelli v Wraith², 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.”³That extension of the scope of the immunity was justified by the view that, as MasonCJ said⁴: “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. MasonCJ explained⁵:

“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 Sinclair⁶where 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 advocates immunity by Mason CJ was confirmed in D’Orta-Ekenaike in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity⁷:

“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’⁸or … ‘work intimately connected with’ work in a court. (We do not consider the two statements of the test differ in any significant way.)” 

21. [21]
    In respect of the scope of witness immunity, in Ollis v NSW Crime Commission [2007] NSWCA 311 at [47], Beazley JA held:

The authorities establish that the immunity extends to a range of statements made out of court but which are connected in a relevant way to the court process. These include statements made in pleadings: [Jamieson v R(1993) 177 CLR 574] at 583 [8]; statements from potential witnesses in criminal proceedings made at a time when proceedings are in contemplation but not yet commenced: Evans v London Hospital Medical College [1981] 1 WLR 184; statements made out of court that could fairly be said to be part of the process of investigating crime with a view to prosecution: Taylor v Director of the Serious Fraud Office [1999] 2 AC 177: see generally Meadow v General Medical Council [2007] QB 462 at 475 [12].

22. [22]
    The scope of immunity for out of Court actions of expert witnesses has been given some specific attention.
23. [23]
    Commonwealth v Griffithsinvolved conduct by an analyst employed by the Commonwealth, operating through the Australian Government Analytical Laboratories (AGAL). He conducted tests on a substance seized from industrial premises and issued a certificate of analysis stating the substance was a prohibited drug. The certificate was admissible as prima facie evidence of the identity of any analysed substance under section 43 of the Drug Misuse and Trafficking Act 1985 (NSW). The certificate was used by the DPP in prosecuting the owner of the premises and tendered at the trial under section 43.
24. [24]
    The owner was convicted but acquitted on appeal on the basis that the analyst had manipulated the test. The owner commenced proceedings in negligence and breach of section 52 of the Trade Practices Act 1974 (Cth) against the analyst personally and the Commonwealth as his employer. At first instance the trial judge dismissed the proceedings against the analyst on the basis of witness immunity but refused to strike out the proceedings against the Commonwealth. Both parties appealed. The NSW Court of Appeal upheld the Commonwealth’s appeal and dismissed the appeal from the owner.
25. [25]
    Beasley JA gave the leading judgment with which Mason P and Young CJ agreed. The Court was concerned primarily with identifying the extent to which preparatory work done out of Court in the AGAL laboratory fell within the scope of the immunity. The issue raised by Mr Griffiths counsel related to weather the analytical work undertaken by Mr Ballard, the analyst, in the AGAL laboratory was arguably work undertaken as part of investigatory activities, as opposed to being part of work preparatory to giving evidence. The distinction was submitted to arise from Darker v Chief Constable of the West Midlands Police[2001] 1 AC 345. Her Honour reviewed the authorities which dealt with the scope of the immunity in respect of preparatory work^[7]and concluded that the work of Mr Ballard plainly fell within the scope of the immunity, primarily because on the material before the Court, Mr Ballard’s conduct was solely concerned with analysing the substances for potential use in a prosecution, he was not investigating a potential offence in the manner of a police officer (even assuming the distinction in Darkerexisted).^[8]
26. [26]
    The review of authority undertaken by her Honour demonstrates in my respectful view a concern of the Courts to ensure that the efficacy of the immunity as to conduct in Court is not undermined by a narrow approach to the identification of the link between preparatory conduct and conduct in Court (while bearing in mind the importance of not giving the immunity too broad a scope). The case of M v Newham London Borough Council[1995] 2 AC 633 reviewed by her Honour at [62]-[64] has some similarity to this case. There, the House of Lords concluded that a psychiatrist who had produced a report which mistakenly identified a person as an abuser in circumstances where the report was relied upon to remove the child from its mother, had immunity in respect of that conduct. In identifying the character of the link between proceedings in court and the conduct under challenge, Lord Browne-Wilkinson observed (at 755):

In the present case, the psychiatrist was instructed to carry out the examination of the child for the specific purpose of discovering whether the child had been sexually abused and (if possible) the identity of the abuser. The psychiatrist must have known that, if such abuse were discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It follows in my judgment that such investigations having such an immediate link with possible proceedings in pursuance of a statutory duty cannot be made the basis of subsequent claims.

27. [27]
    Young v Hones[2014] NSWCA 337 was another case which recently considered the scope of immunity for expert witnesses. In that case, the plaintiff brought claims for negligence against her former solicitors, barrister, expert engineering witness and the employer engineering firm.
28. [28]
    In respect of the engineering defendants, the plaintiff alleged that the engineers were briefed with documents relating to the plaintiff’s claim in the Land and Environment Court, that the engineers participated in an expert conclave which recommended certain remedial works and that the plaintiff then entered into a settlement based on the remedial works advised by the conclave. The plaintiff also alleged that the engineers were negligent in failing to advise as to the appropriate extent of the remediation work and negligently agreeing to the inadequate remediation work agreed in the conclave.
29. [29]
    The question of the availability of the immunity was dealt with as a preliminary point. The trial judge found that the immunity applied. The NSW Court of Appeal agreed.
30. [30]
    On the appeal, the plaintiff contended that the immunity did not apply because the conduct relied upon was advice work not given for the purpose of giving evidence and that the conduct in relation to the conclave was not covered by the immunity because it ultimately recommended remediation, which was antithetical to the relief sought in the proceedings. The relief sought was reinstatement.
31. [31]
    After reviewing the authorities, Bathurst CJ held in that respect (at [35]):

This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate’s immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court:D’Orta-Ekenaikeat[86].

32. [32]
    His Honour concluded that the immunity was available in that case.
33. [33]
    Ward JA (with whom Emmett JA agreed) reached the same conclusion. Her Honour conveniently sets out the contentions advanced by the appellant from [234]. After reviewing Beasley JA’s decision in  Commonwealth v Griffiths, her Honour observed:

[248]In the present case, MsYoung argues that the relevant test is one that focuses on the purpose of the work carried out by the expert. Reliance is placed on what was said inPalmer v Durnford Ford (1992) QB 483 at 488 to 489 by Simon Tuckey QC sitting as a deputy High Court judge as to the test for witness immunity in relation to work preparatory to a hearing:

In considering whether the immunity is so far reaching, I approach the matter by noting that experts are usually liable to their clients for advice given in breach of their contractual duty of care and secondly that the immunity is based upon public policy and should therefore only be conferred where it is absolutely necessary to do so. Thus, prima facie the immunity should only be given where to deny it would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.

Accordingly I do not accept that the immunity can be as wide as that contended for. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all …

Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. (underlining added)

[249]MsYoung notes that this was approved inM (a Minor) v Newnham London Borough Council [1995] 2 AC 633 at 661G (one of the authorities to which BeazleyJA had regard inGriffiths). Reference is also made toStanton v Callaghan[2000] 1 QB 75, where OttonLJ referred to authority that the availability of witness immunity for alleged pre-hearing work depended on there being “principal and proximate connection” and NourseLJ did not question the purpose test but queried whether the correct test should be the “principal” purpose, as suggested byPalmer, or the “substantial” purpose.

[250]MsYoung contends that his Honour erred in that he did not determine whether the advice work was done for the purpose “and by implication with the intention” of the fifth respondent giving evidence in the proceeding.

[251]InGriffiths, her Honour did not frame the test by reference to the purpose or intention, subjective or otherwise, of the person undertaking the work about which complaint is made. Rather, her Honour looked to see whether there was a connection between the work performed and evidence given or to be given in the subsequent hearing.

[252]His Honour, while not expressly articulating the test adopted for determining whether the work undertaken by the engineer respondents was of a preparatory kind in connection with the litigation so as to come within the scope of the privilege, clearly had in mind (as evident from what his Honour said at[186]) that it was necessary for there to be a connection between the work in question and steps taken or to be taken in the conduct of the litigation. In particular, his Honour had regard to the connection between the advice “given in the course of proceedings” and the settlement which occurred ([189]) by reference to two matters: the report and “appropriate remediation plan” being “made available in the litigation” and the participation of the fifth respondent in the expert conclave that resulted in the production of the detailed drainage works document that formed part of the consent settlement in the proceedings ([186]).

34. [34]
    Her Honour concluded that the trial judge had adopted the correct test for identifying the link between the conduct impugned and the litigation. Her Honour also concluded that the two kinds of conduct impugned fell within the immunity. That discussion focussed on whether, on the material before the trial judge, it could properly be inferred that the engineer had been retained to give expert evidence at the time of the alleged negligent advice. No such problem arises in this case given the terms of the statement of claim.

DHF has immunity

35. [35]
    I now turn to consider the case advanced by the plaintiff.
36. [36]
    The following matters relevant to the witness immunity emerge from the allegations in the statement of claim:

    1. (a)
       DHF was engaged by BMS as an expert witness in the Proceedings to give an expert opinion on the risk of “incestuous sexual recidivism by BMS towards Caleb” (paragraph 6);
    2. (b)
       DHF provided three expert reports dealing with that risk for use in the Proceedings, all of which appear to have been considered by the relevant Court (note paragraphs 12, 16, 18, 21 and 22 which demonstrate that all three reports were the subject of the so-called Critique report which was put before the Family Court, and paragraph 27 which refers to a judgment dealing with the Critique report and the “Defendant’s evidence”);
    3. (c)
       DHF represented to Mrs Chalk that he was qualified to give opinions on the risk and had maintained relevant continuous education (the Representations);
    4. (d)
       The Representation arose from two classes of conduct:

       1. Impliedly or expressly from the delivery of his three expert reports (particulars 8 a.); and
       2. Impliedly by his accepting the engagement to provide the reports (see particulars 8 c.)
    5. (e)
       DHF also represented to Ms Chalk (the Further Representations) that:

       1. He had conducted an examination of Ms Chalk for the purpose of determining her mental health; and 
       2. He was able to provide a proper expert opinion on her mental health;
    6. (f)
       The Further Representations also arose expressly or impliedly from:

       1. The release of a further report dealing with Ms Chalk’s mental health dated 28 November 2011 “in the Proceedings” (the further report) (paragraph 17); and
       2. DHF undertaking to provide expert evidence on Ms Chalk’s mental health (particulars 29 b. iii.)
    7. (g)
       The further report was also considered by the Court (paragraph 33); and
    8. (h)
       The representations were all untrue because DHF was not qualified to express an expert opinion on either the risk or Ms Chalk’s mental health and further, he had not in fact examined her.
37. [37]
    To the extent that Ms Chalk’s claims against DHF are based on the content of the four reports, they are based on evidence given by him in Court, albeit in written form. This follows because it appears from the pleaded case that each of the reports were in fact tendered in evidence or otherwise put before the Court.  
38. [38]
    Even if that were not so, the preparation of each of the reports was a preparatory step to the giving of evidence as an expert witness. The statement of claim expressly pleads that DHF was retained by BMS to provide expert evidence and pleads no other fact which could rationally support the conclusion that DHF’s reports were prepared for any reason than for use in Court.
39. [39]
    Further, Rule 15.55 Family Law Rules 2004(Cth) compels any party who has obtained and expert’s report for a parenting case to disclose the report to the other party. Rule 15.61 Family Law Rulesthen provides:

Expert witness’s evidence in chief

1. (1)
   An expert witness’s evidence in chief comprises the expert’s report, any changes to that report in a notice under sub rule 15.59(5) and any answers to questions under rule 15.66.
2. (2)
   An expert witness has the same protection and immunity in relation to the contents of a report disclosed under these Rules or an order as the expert witness could claim if the contents of the report were given by the expert witness orally at a hearing or trial.

40. [40]
    The Family Law Rules 2004(Cth) applied to both the Federal Magistrates Court (as the Court was in 2009-2011) and the Family Court: see definition of “court” in the Dictionary to the Family Law Rules. While there is no express allegation in the statement of claim that the reports were disclosed under Rule 15.55, it is alleged that the reports were “released in the Proceedings” to Ms Chalk, the opposing party. In my view it is a safe inference that the reports were disclosed in accordance with Rule 15.55. No submission was made to the contrary by the plaintiff.
41. [41]
    Accordingly, the immunity seems clearly to arise in respect of the claims, to the extent they are based on the reports.
42. [42]
    The plaintiff also relies on other conduct as giving rise, by implication, to the representations. That conduct can be characterised as DHF’s undertaking to provide expert evidence in the context of the various duties of an expert witness. The plaintiff contended that this conduct lay outside the scope of the immunity. I disagree. It is difficult to think of conduct more closely connected to the giving of expert evidence in a Court than the act of accepting an engagement to do so. The plaintiff’s real complaint, in my view, is that DHF undertook to provide expert evidence which he was not qualified to provide. However, even if that allegation is correct, it cannot as a matter of law take his conduct outside the scope of the immunity. If perjured evidence attracts immunity from civil claims, then wrongful assertion of expertise to provide expert opinion evidence must surely do so.
43. [43]
    The plaintiff relies on two propositions in answer to the immunity raised by the defendant.
44. [44]
    First, the plaintiff contended that the misrepresentations pleaded concerned DHF’s expertise to give evidence, not the evidence he gave. This is a distinction without a difference. Even if the distinction could be drawn, however, the difficulty with this contention is that in considering the immunity the focus must be on the conduct the subject of the claim. For the reasons given in paragraphs [37]to [42]above, the conduct said to give rise the representations is conduct which falls within the scope of the immunity.
45. [45]
    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:

    1. (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;
    2. (b)
       Accordingly, the immunity only arises where conduct by the advocate affects the finality of a judgment;
    3. (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
    4. (d)
       The evidence of DHF did not affect a judgment and therefore it does not attract immunity.
46. [46]
    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.

47. [47]
    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.
48. [48]
    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 GleesonCJ, 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 thatD’Ortadoes 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’swork 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)

49. [49]
    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:

    1. (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 “toassist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences”;
    2. (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;
    3. (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
    4. (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
50. [50]
    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.
51. [51]
    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.

Statutory causes of action not made out

52. [52]
    The plaintiffs rely on statutory causes of action arising under the ACL (Cth) and the Fair Trading Act. The defendants contend that those causes of action are made out on the facts alleged.

Was the conduct “in trade or commerce”?

53. [53]
    Section 18 of the ACL prohibits misleading or deceptive conduct that is “in trade or commerce”. The same condition is imposed on equivalent prohibition in section 38 Fair Trading Act.
54. [54]
    The plaintiffs allege that the conduct the subject of the claims was in trade or commerce: (paragraph 31). The defendant deny that proposition can be correct as a matter of law. The defendant contends that the preparation for and the giving of evidence does not have the necessary connection with commercial activity to permit it to be characterised as being conduct “in trade or commerce”. The defendant relies on Commonwealth of Australia v Griffiths (discussed from [23] above).
55. [55]
    There Beasley JA considered the contention that the preparation and provision of the certificate of analysis was not conduct in trade or commerce. Her Honour agreed. She reasoned as follows:

[133]AGAL contends that the representation made in the certificate of analysis as to the nature of the substance was not made in trade or commerce. It otherwise accepted that it was arguable (which was sufficient for the purposes of the application before the Court) that in providing the certificate of analysis by way of, or as part of a service provided to the police, that it was carrying on a business within the meaning of s 2A of the Trade Practices Act. It was also accepted, for the purposes of the application before the Court, that the giving of the certificate of analysis was within trade or commerce (on the basis that the provision of the certificate would have been for a fee). The question, therefore, is whether the contents of the certificate of analysis, that is the representation contained in the certificate of analysis that the substance was methcathinone, was made in trade or commerce. AGAL relied on the decision in Plimer v Roberts & Anor (1997) 80 FCR 303 in support of this opinion. I will turn to that decision shortly. Before doing so, it is convenient to turn to the High Court’s decision in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594.

[134]In Concrete Constructions, the respondent, a construction worker, alleged that whilst employed by the appellant, a foreman instructed him to remove certain grates and informed him that each grate was secured by bolts. It was alleged that that was not so, and the respondent fell when one of the grates gave way, suffering serious injuries. He claimed damages against his employer on the basis that its foreman's untrue statement concerning the bolts was conduct which was misleading or deceptive or liable to mislead or deceive contrary to s 52 of the Trade Practices Act.

[135]The majority (Mason CJ, Deane, Dawson and Gaudron JJ) held at 603–604 that s 52 was not intended:

… to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business … What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character … In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. The point can be illustrated by reference to the examples mentioned above. The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor’s name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct ‘in trade or commerce’ for the purposes of s 52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct "in trade or commerce" for the purposes of that section. That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation "in trade or commerce". Nor, without more, is a misleading statement by one of a building company's own employees to another employee in the course of their ordinary activities.”

[136]That brings me back to Plimer, upon which AGAL specifically relied. In that case, the Court was concerned with a number of representations made by Dr Roberts in the course of public lectures given throughout Australia, as to the existence of the remnants of Noah’s Ark at a site in eastern Turkey. Dr Roberts believed this provided tangible evidence of the literal truth of the account of the great flood in the book of Genesis. Professor Plimer, geologist, claimed to be affronted by these claims, which he said were misleading or deceptive. The question arose whether the representations made in the public meeting were made in trade or commerce within the meaning of the Trade Practices Act.

[137]Davies J, at 305, considered that the subject matter of the lectures in which the misleading and deceptive statements occurred, was not in trade or commerce. His Honour considered that the subject matter itself was non-commercial in character and although there were monetary incidents to the lectures, such as entry fees and the sale of videos, the lectures were not concerned with commerce, but rather with the promotion of a creationist view of history and the investigation of a matter of great historical interest. Relevantly, the lectures were not given for the purpose of financial gain but for the achievement of other objectives. The lectures had been arranged by volunteers and his Honour considered that the audience would have attended because of an historical or religious interest in the matter. Further, Dr Roberts received no payment for the lectures and it was not suggested that in giving the lectures he was carrying on the profession of author or speaker.

[138]Branson J, after referring to the High Court decision in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 considered that the phrase “trade or commerce” indicated, at 311, that s 52 was concerned with “commercial activity”, that is, the provision of goods and services for reward.

[139]Lindgren J, at 327, considered that the delivery of the lectures was not inherently a trading or commercial activity. His Honour accepted that there could be features of a lecture or address which could impart to the making of a representation in the course of doing so, the quality of being “in trade or commerce”. His Honour gave, by way of example, a case where the misrepresentation was characterised as directed to promoting the sale of goods or services. However, that was not the case in the matter before him.

[140]Plimer v Roberts was referred to in Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110, where Heerey J observed that the Full Court in Plimer v Roberts noted the distinction between the selling of door tickets, videotapes and the like in relation to the lectures on the one hand, and the content of what was said in the lectures. His Honour remarked that the former was accepted to be conduct in trade or commerce, the latter was not.

[141]The demarcation in this case is not so immediately obvious. The provision of the certificate of analysis was the service, or part of the service, provided to the prosecuting authorities. The certificate, of course, has no significance unless it has a content. In that way, it might arguably be said that the provision of the certificate, including its content, was conduct engaged in trade or commerce. However, there are at least two indications to the contrary which lead me to conclude that the conduct involved in the issue of the certificate was not conduct engaged in trade or commerce. The first consideration derives from the statutory force of the certificate, namely, that it may be used in evidence in legal proceedings, including criminal proceedings, and as such, has prima facie evidentiary effect. It would be unusual for the content of such a certificate to have the incidents of a commercial activity. The second (which I recognise may be related to the first and may merely be a different expression of it) is that where the conduct which is relied upon involves what I will describe as ‘witness conduct’ and that conduct is the very matter about which a person may be required to give evidence as a witness, then such conduct does not have the necessary connection with ‘commercial activity’ as to fall within the concept of ‘trade or commerce’ within the meaning of the Trade Practices Act.

56. [56]
    As can be seen, her Honour relied upon two considerations to conclude that the conduct in that case did not have the necessary connection with commercial activity.
57. [57]
    The first consideration does not apply in this case: the content of DHF’s reports were not made prima facie evidence of any fact nor given any other statutory force. The second consideration, however, arguably does apply. Here, as in Griffiths, the conduct relied upon is “witness conduct”. That is, it is the representations arising from agreeing to give evidence and actually providing expert reports which is said to give rise to the misrepresentations alleged. I can see no material difference between the situation considered in Griffithsand the situation in this case in that regard.
58. [58]
    I have some reservations as to the conclusion that “witness conduct” of itself is inherently incapable of comprising conduct in trade or commerce where the witness is a professional person who provides expert evidence in the course of the practice of his profession for reward and pursuant to a retainer to do so. In my respectful view,   the judgments in Plimer^[11]might be thought not tosupport such a conclusion.
59. [59]
    An important matter which underlay the judgments in that case was that the lectures by Dr Roberts (whether delivered in person at lectures for which admission was charged by a third party or contained in tapes sold by that third party) did not have a sufficiently commercial character because:

    1. (a)
       Dr Roberts was not paid for the lectures;
    2. (b)
       Dr Roberts was not delivering the lectures as part of his own business as an author or speaker; and
    3. (c)
       The commercial activity of the third party comprised promoting and selling tickets to and recordings of lectures of Dr Roberts on a certain topic, not their content.^[12]
60. [60]
    Unlike Dr Roberts, DHF was providing his evidence in the course of his profession pursuant to an engagement to do exactly that. There would be force in the contention that the witness conduct in this case was (to paraphrase the majority in Concrete Constructions) conduct of DHF towards a person (BMS) with whom he had dealings in the course of his professional practice which, of their nature, bear a trading or commercial character.
61. [61]
    Those reservations would not be a sufficient basis for me not to follow the decision in Griffiths if it was plain that that decision applied in this case.^[13] However, it is not plain that the decision does apply. Her Honour’s reasoning included two considerations, one of which does not apply in this case. Further, as I read her Honour’s reasons, the first consideration was central to the ultimate decision.
62. [62]
    In those circumstances, I am not persuaded that the allegation that the conduct identified in the pleading was in trade or commerce is untenable and should properly be struck out at this stage of the proceedings.

Statutory provisions otherwise not applicable 

63. [63]
    The plaintiff claims relief under sections 236 or 237 of the ACL (Cth) for breach of section 18 of that law. The ACL (Cth) is a schedule to the Competition and Consumer Act 2010 (Cth). That Act commenced on 1 January 2011. Pursuant to section 131(1), it applied the ACL to conduct of and by corporations.
64. [64]
    The defendant submits, correctly in my view, that the statement of claim discloses no proper cause of action under that Act because DHF’s conduct is not conduct of a corporation. The claim under this section must therefore be struck out.
65. [65]
    The plaintiff also claims relief under sections 99 or 100 Fair Trading Act for breach of section 38 of that Act. The defendant submits, correctly in my view, that the statement of claim discloses no cause of action under that Act because Ms Chalk does not have standing under either section to seek relief. I agree in that submission as well.
66. [66]
    The Fair Trading Act was substantially amended commencing 1 January 2011 so as to incorporate the ACL as a law of Queensland. However, it is plain from the statutory provisions pleaded that the plaintiff advances its claims under the FTA as enacted prior to those amendments (the pre-ACL FTA). To the extent that the plaintiff advances claims in these proceedings in respect of conduct occurring before 1 January 2011, the proceedings may be started and completed under the Fair Trading Act as it stood prior to the amendments: section 122. As the conduct comprised in the first two reports and the undertaking to give expert evidence occurred prior to 1 January 2011, the plaintiff may properly bring proceedings under the pre-ACL FTA for relief in respect of that conduct.
67. [67]
    The difficulty arises from the limitation on the persons with standing to seek relief under the unamended FTA. For each of sections 99 and 100, no remedy is available unless the loss or damage is suffered by a consumer: see sections 99(4)(a) and 100(9) of the pre-ACL FTA. A consumer is relevantly defined as follows:

6.Meaning of consumer.

(1)In this Act, unless the contrary intention appears, a reference to a consumer is a reference to a person who in relation to a particular transaction, whether a separate contract or separate transaction within a contract, acquires goods or services as a consumer.

(2)A person acquires goods or services as a consumer for the purposes of subsection (1)-

(a)if, being a person other than an incorporated person he acquires the goods or services otherwise than in the course of or for the purposes of a business carried on by him or than as a member of a business partnership; or

(b)if the price of the goods or services does not exceed $40,000.

(3)In no case shall a person be taken to have acquired goods as a consumer if he acquires them for re-supply by way of sale, exchange, lease, hire or hire-purchase.

(4)For the purposes of paragraph (b) of subsection (2), if the price of goods or services is not ascertainable by' reference to a cash price stipulated in the contract in question, the price shall be deemed to be the reasonable cash price for them having regard to the circumstances of the case.

(5)Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person is a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is proved, that he is a consumer in relation thereto.

68. [68]
    The statement of claim does not plead facts which bring Ms Chalk within the scope of the definition of consumer. She therefore does not have standing to make a claim under either section 99 or section 100. The claims under these sections must be struck out.

Claims are statute barred

69. [69]
    Claims under sections 99 and 100 of the pre-ACL FTA must be brought within 3 years after the date upon which the cause of action accrued: sections 99(3) and 100(5)(b) of the pre-ACL FTA. Claims under the ACL (Cth) must be brought within 6 years of the day upon which the cause of action that relates to the conduct accrues: sections 236(2) and 237(3)(a) ACL.
70. [70]
    It is trite that those causes of action accrue not at the time of the breach of the statutory prohibition, but at the time that actual loss is first suffered “by” that breach. Further, the question of when the loss or damage is suffered must be answered by reference to the applicable measure of damages and is a question of fact to be determined in accordance with all the circumstances of the case.^[14]
71. [71]
    The plaintiff particularises her loss and damage as first accruing from 7 January 2011 when she incurred a liability for legal fees for her solicitors which she says was a result of the so-called Contraventions alleged (paragraph 37 particulars). She pleads that liability for further invoices continued to be incurred until 18 August 2014. These proceedings were commenced on 1 November 2017.
72. [72]
    On the face of the pleading, the claims under the pre-ACL FTA were brought outside the three year limitation period, even if the causes of action are assumed to accrue on the last day identified in the particulars, much less the first day identified in the particulars.
73. [73]
    On the face of the pleading, the claims under the ACL (Cth) were brought outside the six year period unless the causes of action did not accrue on the date of the first invoice. I can see no reasonable argument as to why the cause of action did not accrue on that date and none was advanced in argument. In particular, it was not argued that a new cause of action accrued on the issue of each succeeding invoice, and such an argument could not in my view be reasonably sustained. There is no separate cause of action for each distinct kinds of loss suffered by the same misleading or deceptive conduct.^[15]A fortiori for further instances of the same kind of loss, as is the case here.
74. [74]
    The plaintiff contended that the question of limitation periods ought not to be dealt with on a summary basis. While that is generally true, it is recognised that in clear cases, the matter can be dealt with on a summary basis. I consider this is such a case.
75. [75]
    Accordingly, the claim and statement of claim must be struck out on this basis as well.

Other defects in the statement of claim

76. [76]
    The defendant pointed to a number of other defects in the pleading. Those criticisms all have merit.

The Further Representations

77. [77]
    The Further Representations are alleged to comprise representations expressly or impliedly made in a further report released on 28 November 2011 (the further report) that:

    1. (a)
       The defendant had conducted a medico-legal examination of the plaintiff to determine her mental health; and
    2. (b)
       The defendant was able, based on that examination and other matters in the further report, to give a proper expert opinion as to the plaintiff’s mental health.
78. [78]
    They are alleged to have been made expressly or impliedly:

    1. (a)
       Insofar as in made in writing, they are particularised as being made in the further report;
    2. (b)
       Insofar as implied they were implied “due to” the defendant’s duty to the Court when providing expert evidence and to the fact that the further report was to be provided to the Court and the plaintiff.
79. [79]
    The Further Representations are said to be misleading because, in effect, they were untrue. They are alleged to have been made in trade or commerce. They are alleged to have been taken into account in reasons for judgment on 30 August 2012.
80. [80]
    The Further Representations are pleaded as being part of the Contravention and as a result of the Contravention, the Plaintiff suffered loss and damage in the form of incurring additional legal costs.
81. [81]
    I first observe that the conduct which is said to give rise to the Further Representations is, again, the conduct of “releasing” the further report and implications said to arise from the undertaking to give evidence. As set out above, witness immunity arises in respect of that conduct. However, the defendant makes a further complaint about the Further Representations. The defendant contends that no facts are pleaded capable of demonstrating that any loss was suffered “by” that conduct.
82. [82]
    That submission is correct. While that conduct is alleged to have been part of the “Contravention” and the Contravention is alleged to have caused the loss and damage, the pleading pleads no fact which demonstrates any chain of causation between that conduct and the loss. In particular:

    1. (a)
       It is not alleged that Ms Chalk relied upon the Further Representations in taking any step, nor is any fact pleaded identifying how the Further Representations caused the incurring of additional legal costs pleaded in paragraph 37 of the statement of claim;
    2. (b)
       Paragraph 33 suggests (without explaining) that the Further Representations had some relevance to reasons given on 20 August 2012. This creates ambiguity as to what the relevance of that event might be to the loss alleged; and
    3. (c)
       Paragraph 37 alleges that the Further Representations, as part of the Contravention, caused loss from 7 January 2011, in circumstances where the further report was not provided until 28 November 2011.
83. [83]
    While as a matter of formality, the Further Representations are alleged to have caused the loss pleaded in paragraph 37 as part of the rolled up allegation that the Contravention caused the loss, the pleading fails rationally to identify a chain of causation between the conduct alleged and the loss claimed.^[16]Accordingly, the paragraphs 33 and 37 should be struck out under Rule 171(1)(b) UCPR.

Causation and the Representations

84. [84]
    The defendant also complains that the statement of claim fails properly to plead the chain of causation between the Representations and the loss claimed in paragraph 37.
85. [85]
    In that regard, the statement of claim advances the following allegations. The plaintiff says that in reliance on the Representations (i.e. that DHF was competent to give expert opinion evidence on the risk of recidivism and had maintained his qualifications to do so), she did not obtain a competent expert report as to that risk until 28 May 2012 when she received the report from Dr Smallbone directed by the Family Court (paragraphs 22 to 25 and 32), and which she accepted on 4 June 2012 (paragraph 26).
86. [86]
    Also relevant is the allegation that if the first report had been completed by a competent expert, it is probable that the report would not have had the defects identified in DHF’s report, the plaintiff would have accepted the report and the proceedings would have been resolved on around 12 December 2010 (paragraph 28).
87. [87]
    The causation case is hard to piece together from these allegations in the context of the balance of the pleading. The causation analysis seems to be that Ms Chalk relied upon DHF’s represented expertise, and therefore if DHF had been competent, his report would have been competent, so Ms Chalk would have accepted it and the Proceedings would have resolved.
88. [88]
    I do not understand this analysis, particularly in light of the other allegations in the statement of claim. The allegation that Ms Chalk relied on DHF’s represented expertise not to obtain a competent report seems inconsistent with her conduct in retaining Dr Madsen to complete a critique of DHF’s first three reports. That allegation suggests that she did not rely on DHF’s expertise, at least from 29 September 2011.
89. [89]
    Further, if she did rely on his expertise until September 2011 and then sought Dr Madsen’s report when she discovered that DHF did not have the expertise he had represented, then her reliance ended at that point. I do not see how Ms Chalk can then claim for costs after September 2011.
90. [90]
    This last point suggests that Ms Chalk’s real case is for a remedy for expectation loss rather than reliance loss. That is, if it were true that DHF had the expertise represented and if he had properly applied that expertise to the reports, then Ms Chalk would have had a competent report which she (ultimately) would have accepted. That is not the case pleaded.
91. [91]
    It might be that a proper causal analysis can be developed, but it is not disclosed in the current pleading. The defendant correctly complains that the pleading is ambiguous and that the causal chain is not apparent. The paragraphs identified in this section should be struck out pursuant to Rule 171(1)(b) UCPR as having a tendency to delay a fair trial of the proceedings.

Other matters 

92. [92]
    The statement of claim is defective in form in a number of other respects.
93. [93]
    First, paragraph 30 b. alleges that the Representations and Further Representations were made by DHF knowing them to be untrue or with reckless indifference to whether they were true or not. This is the language of fraud. No particulars to justify the allegation were provided. That paragraph should be struck out. Unless there is a proper basis for that allegation, it should never have been made.
94. [94]
    Second, the particulars of the Representations and Further Representations do not properly particularise the material allegations. In particular, there is a reference to various expert reports without identifying the particular parts of the reports relied upon.
95. [95]
    Third, the pleading is replete with ambiguous and obscure allegations, such as:

    1. (a)
       The allegation that the various reports were “released… in the Proceedings’, it can be inferred in the circumstances that this means that the reports were  disclosed, but that should have been clearly stated;
    2. (b)
       The allegation in paragraph 12 which alleges that a letter was written saying that the Court had said that the Second Report required review. The material fact in this allegation seems to be what the Court had said, not the fact that a letter was written saying what the Court had said. If so, it is not pleaded that way; and
    3. (c)
       Paragraph 33 states that the further report was referred to in reasons given by Bell J and was a reason for the decision in the Proceedings on that date. But what was the decision and why is this relevant?

Conclusion

96. [96]
    For the above reasons, I consider that the whole of the claim and statement of claim should be struck out. Mr Hogg, for Ms Chalk, sought leave to file an amended claim and amended statement of claim in the event I reached that conclusion. Mr Hodge submitted that the proceedings should be summarily dismissed on the basis that there was no realistic prospect that a cause of action could be formulated which did not infringe DHF’s immunity as a witness.
97. [97]
    There is merit in Mr Hodge’s submission. While the other matters raised in these reasons might conceivably be addressed by a different approach to the pleading (though the statutory bar issues in particular seem hard to answer), I cannot see how a claim based on the conduct of DHF comprised in preparing and delivering his reports and in undertaking to provide expert evidence could possibly be repleaded so as to avoid attracting witness immunity, and that conduct is the foundation of the case advanced. To purpose would be served by granting leave to replead.
98. [98]
    I am very conscious of the care which must be taken in dismissing proceedings on a summary basis. However, in this case, it is the appropriate course. I refuse leave to replead and I order that the proceedings be dismissed.