Lewis v Hillhouse[2005] QSC 20

SUPREME COURT OF QUEENSLAND

1. MOYNIHAN J: The plaintiff sues the defendants, they were his solicitors, for damages for negligence or for breach of a contract of retainer to act for him in his appeal against convictions for criminal offences involving official corruption.

2. The defendants move to strike out the claim under the Uniform Civil Procedure Rules, rule 171 on the basis that it is an abuse of process, or that it does not disclose a reasonable cause of action.

3. The plaintiff, a former Commissioner of Police for Queensland, was found guilty by a jury on 15 counts of official corruption. The trial lasted 89 days and some 100 witnesses were called. The verdicts were returned and sentences of imprisonment were imposed on 5 August 1991.

4. A notice of appeal was filed on 13 August 1991. The plaintiff signed the notice. It is alleged it was settled following a conference involving the plaintiff, trial counsel (a different counsel argued the appeal) and the plaintiff’s solicitor. The appeal was heard on 28, 29, 30, 31 January and 3 February 1992 and dismissed on 3 August 1992; see R v Lewis^[1].

5. One of the grounds of appeal was that there had been a miscarriage of justice by reason of wrongful admission at the trial of a body of evidence identified in schedule 2B of the Notice of Appeal. It is convenient to adopt the terminology of the pleading and call this the evidence admission ground.

6. The plaintiff was not present when the appeal was argued. At the hearing of the appeal the plaintiff’s appeal counsel did not argue the evidence admission ground. That abandonment is the foundation of this action. It is pertinent to bear in mind that the appeal counsel is not sued and no allegations of breach of retainer or negligence are made in respect of his conduct.

7. The first and second defendants were partners in the firm of solicitors retained by the plaintiff to act for him at his trial and on appeal. Rick Glynn Whitton was the partner directly responsible for the representation of the plaintiff at trial and on appeal; he instructed counsel on the appeal. He is now deceased.

8. The appeal counsel, Mr S.E. Herbert QC, is also deceased. So is a key prosecution witness in the plaintiff’s criminal trial, Mr J.E. Herbert.

9. The defendants seek to strike out the action on two bases. First it is an abuse of process. This is because it necessarily involves a collateral attack on the plaintiff’s conviction and so is contrary to public policy. To allow the action to proceed would be unfair to the defendants in these circumstances.

10. Alternatively, it was submitted the action is demonstrably unsustainable because the defendants were not obliged to take the steps pleaded by paragraph 23 of the statement of claim and particularised in paragraph 16.1 of the particulars; these paragraphs are set out in paragraphs [24-26] of these reasons.

11. It is convenient to deal with a number of points at this stage. First the defendants argued the application to strike out for abuse of process on a narrow basis; “the equivalent of the old demurer proceedings”, “everything in the statement of claim” was “accepted as correct”.

12. Secondly the abandonment of the evidence admission ground is referable to the decision of Court of Appeal in R v MacFarlane^[2].  The plaintiff’s Notice of Appeal was filed on 13 August 1991, MacFarlane^[3] was decided on 9 December 1991 and argument in the plaintiff’s appeal commenced on 28 January 1992. 

13. Put shortly and at the risk of over-simplification the Court of Appeal decided in MacFarlane^[4] that what is conveniently labelled as evidence of systemic corruption in the Queensland Police Force was admissible against MacFarlane at his trial for official misconduct.  The evidence particularised in schedule 2B of the Notice of Appeal is in that category. 

14. Thirdly, in the submissions made on his behalf the plaintiff did not assert a right to give binding instructions as to how his appeal should be argued. Rather it was contended that Whitton ought to have informed the plaintiff if there were any departures from his instructions that the grounds of appeal as filed should be argued.

15. The plaintiff alleges that Whitton’s failure deprived him of the opportunity to ask for a further consideration of the abandoning ground, to seek another opinion or to retain fresh counsel (see paras 7 and 23 of the statement of claim set out in paras [23] and [24] and [25] of these reasons).

16. Counsel for the defendants initially submitted that MacFarlane^[5] in any event made it impossible for the plaintiff’s appeal on the wrongful admission ground to have succeeded.  In the event the application proceeded on the basis that whether MacFarlane^[6] rendered the evidence admission ground untenable would not be consideration determined on this application.

17. In my view it is however reasonable to infer that in abandoning the evidence admissibility ground, the appeal counsel decided, in the exercise of his professional judgment, that the ground was not properly arguable in the light of the decision in MacFarlane^[7].

18. In that context the administration of justice depends upon barristers’ exercise of independent judgment in the conduct and management of the case. It is in the public interest that counsel’s overriding obligation is to the court. That obligation must be honoured even if the client gives instructions to the contrary; Giannarelli & Shulkes v Wraiths^[8] per Mason J at 555-558, Wilson J at 573, Rondel v Worsley^[9] at 247 and the cases there cited, Steindl Nominees Pty Ltd v Laghafar^[10] [24], Arthur J S Hall  & Co (a firm) v Simonds^[11] at 686F, 715H-726EG.

19. Fourthly, the plaintiff does not rely on any evidence or argument not available or discoverable at the time of his trial as a foundation for the action. It cannot therefore be said that the basis of the case made out at his criminal trial is different from that reflected in this action.

20. I turn to the relevant parts of the statement of claim. It is alleged that:

“7.  The material terms of the retainer were that the defendants would:

(a) for consideration act as the plaintiff’s solicitors covering all stages through which the case may proceed including: 

1.   committal proceedings; 
2.   trial; 
3.   any appeal; 

(b)act in accordance with the plaintiff’s lawful instructions in the conduct  of the case; 

(c)provide the plaintiff with competent advice concerning the litigation;

(d)attend to the plaintiff’s interests arising from the litigation in a proper professional manner;

(e)keep the plaintiff informed regarding matters arising from the litigation and like to affect him;

(f)give the plaintiff the opportunity, at trial a nd on appeal, to present his case fully.”

Comparable obligations are pleaded for the duty of care consequent on the solicitor client relationship between the plaintiff and the defendants.

21. Paragraph 23 of the statement of claim pleads breach of the contract of retainer and of the duty of care in these terms:

“23.  The Defendants conducted the appeal in breach of the terms of the retainer and in breach of their duties of the Plaintiff.

Particulars

1. the Defendants failed, contrary to the plaintiff’s instructions and contrary to the plaintiff’s best interests, to ensure that the evidence admission ground was pursued;
2. the Defendants failed to inform the plaintiff of appellate counsel’s intentions to abandon the evidence admission ground;
3. the Defendants failed to take steps to ensue the evidence admission ground was not abandoned, or not abandoned until the plaintiff had been consulted;
4. the Defendants failed to give the Plaintiff an opportunity to have the evidence admission ground presented to the court;

5. the Defendants failed to carry out the instructions of the Plaintiff to rely upon and argue the evidence admission ground;

6. the Defendants failed to attend to the Plaintiff’s interests in a proper professional manner.”

22. The applicant sought particulars of the allegation in sub-para (c) and was told:

“16.1 The steps referred to in paragraph 23(c) of the statement of claim allegedly not taken by the defendants include:

(a) ensuring that appellate counsel prepared submissions in support of the evidence admission ground;

(b) ensuring that they kept themselves informed of the arguments proposed to be put by appellate counsel;

(c) when appellate counsel announced to the court that he was abandoning the evidence admission ground, the solicitor ought to have informed the court that counsel had no instructions to so abandon the evidence admission ground;

(d) to seek an adjournment of the hearing to obtain instructions from the plaintiff, who was not present; and

(e) to secure appellate counsel who would argue the evidence submission ground.”

23. The plaintiff’s case is that had the wrongful admission ground had been argued on appeal his conviction would have been quashed unconditionally or a new trial ordered, he would have been acquitted on a retrial. Alternatively he lost the chance of his conviction being quashed unconditionally or of acquittal or a retrial.

24. So far as quashing is concerned it is relevant to note the trial judge in the action would have to be satisfied that the Court of Criminal Appeal would not have applied s 668E (1A) of the Criminal Code Act 1899 (Qld) against the plaintiff.

25. If the plaintiff is to recover substantial damages he has to establish that he should not have been convicted.

26. It follows from that consideration that at a retrial the defendants would be entitled to prove on the balance of probability that the plaintiff would (or could) have been convicted without the evidence wrongfully admitted at his criminal trial. This course of events involves a collateral attack on the jury’s decision; for example see Smith v Lanskills (a firm) and Anor^[12] and Arthur J S Hall^[13] Lord Browne–Wilkinson at 685 and the cases cited later.

27. Dealing with the causation issues which would arise in such circumstances of whether but for the negligence the plaintiff would have been acquitted has been described as “a mind boggling exercise”, “piling speculation on speculation”. Giannarelli^[14] per Wilson J at 574, Rondel^[15] at 250.

28. The defendants would be obliged to conduct their defence in disadvantageous circumstances because:

• The events in issue took place more than 20 years ago; as to the disadvantages inherent in that because of the loss or degradation of evidence see Brisbane South Regional Health Authority v Taylor^[16] per McHugh J at 551.

• A key witness in the plaintiff’s criminal trial (J.E. Herbert) would not be available.

• The appeal counsel and the instructing solicitor, the only people who could speak at first hand of the matters pleaded in para 23 of the statement of claim, are dead.

29. The defendant’s submission that the action should be struck out as an abuse of process were not founded on advocate’s immunity in respect of the decisions made in the conduct of litigation as expounded in Rondel^[17] and Saif Ali v Sydney Mitchell & Co^[18]. 

30. Rather the submission proceeded on the basis that the action was an abuse of process because, contrary to the public interest, it breached the collateral challenge rule. It was therefore not necessary to invoke advocate’s immunity.

31. In my view that approach is justified by the cases I now turn to consider. The High Court in Giannarelli^[19] considered the collateral challenge rule from the perspective of determining whether it justified an advocate’s immunity from negligence or breach of contract.  The question before the court was in effect whether s 10(2) of the Legal Profession Act 1958 (Vic) imposed a common law duty on an advocate, barrister or solicitor.  The majority view was it did not.     

32. In Giannarelli^[20] the plaintiffs sued their trial counsel for damages for negligence in civil proceedings in the Supreme Court of Victoria after their criminal convictions were quashed on appeal.  The issue was whether an advocate (barrister or solicitor) was liable for negligence in failing to advise of a good defence and to object to inadmissible evidence at their criminal trial at which they were convicted.  By a majority the High Court dismissed the Giannarelli’s^[21] appeal against the Victorian Court of Appeal’s dismissal of their action for negligence. 

33. Mason CJ spoke of the basis of what I have called the collateral challenge rule in these terms (at 558).

“Exposure of counsel to liability for such negligence would unquestionably encourage litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation.  That would be the central issue for decision in secondary litigation of this kind.  If the plaintiff were to succeed, the resolution of this issue by a different court and on materials which might well differ from those presented in the initial litigation, due to lapse of time or other reasons, would undermine the status of the initial decision.  Yet an appeal against that decision might not succeed with the result that it would stand, though its status would be tarnished by the outcome of the collateral proceedings.  The impact of a successful challenge to a criminal conviction resulting in a sentence of imprisonment would be all the greater.  It would be destructive of public confidence in the administration of justice.”

34. The reasons of Wilson J (at 543) are to similar effect:

“. . . there are the many difficulties associated with relitigation, which would be a common feature of trials of actions against counsel.  These difficulties provide a powerful argument for counsel’s immunity.  The situation is not to be compared with a case where an appeal is allowed, a decision set aside and a re-trial ordered.  Such a course of events merely portrays the normal course of appellate review.  It is altogether different where a disappointed litigant institutes a civil proceeding in a court of co-ordinate jurisdiction with a view to proving that the original decision was wrong by reason of counsel’s negligence.  If the negligence action succeeds, then the original decision, notwithstanding that it may have been affirmed on appeal, is necessarily . . .”

See also Dawson J at 594.

35. The House of Lords comprehensively reviewed the issue of collateral challenge in the collection of cases cited as Arthur J S Hall & Co (a firm) v Simonds^[22]. 

36. Three appeals were heard together. Each of the respondents, all firms of solicitors, had been sued for negligent advice which was relied on by their clients in compromising civil actions. In each case the judge at first instance had ruled that the solicitors were immune from suit by virtue of advocate’s immunity and struck out the actions.

37. The claims were restored by the Court of Appeal. In Arthur J S Hall^[23] the House of Lords comprehensively reconsidered Rondel^[24]and Saif Ali^[25] and the basis for advocate’s immunity.  It concluded that the public policy considerations which supported advocate’s immunity were not immutable and reached the conclusion summarised in the following paragraph.

38. This summary is based on the head note in the authorised reports:

-None of the reasons said to justify advocate’s immunity, including the public policy against relitigating a decision of a court of competent jurisdiction, had sufficient weight to sustain the immunity in relation to civil proceedings.

-The principles of res judicata, issue estoppel and abuse of process were sufficient to prevent actions being maintained which would be unfair or bring the administration of justice into disrepute.

-The obstacle of proving that a better standard of advocacy would have produced a different outcome and the ability of the court to strike out unsustainable claims would restrict the ability of clients to bring unmeritorious and vexatious claims against advocates should the immunity be removed. 

-Accordingly, the public interest in the administration of justice no longer required that advocates enjoy immunity from suit for alleged negligence in the conduct of civil proceedings.

-(By a majority) since a collateral challenge in civil proceedings to a criminal conviction was prima facie an abuse of process and ordinarily such an action would be struck out, an advocate’s immunity from suit was not required to prevent collateral attacks on criminal decisions.

-(By a majority) none of the other factors said to justify the immunity had sufficient weight to warrant its retention in relation to criminal proceedings; that, once a conviction had been set aside there could be no public policy objections to an action in negligence by a client against his legal representatives at a criminal trial; and that, accordingly, the public interest no longer required that advocates enjoy immunity from suit for negligence in the conduct of criminal actions.

39. So far as the collateral challenge rule is concerned Lord Hoffman in Arthur J S Hall^[26] at 687 said:

“If a client could sue his lawyer for negligence in conducting his litigation, he would have to prove not only that the lawyer has been negligence but also that his negligence had an adverse effect upon the outcome.  This would usually mean proving that he would have won a case which he lost.  But this gives rise to the possibility of apparently conflicting judgment which could bring the administration of justice into disrepute.  A client is convicted and sent to prison.  His appeal is dismissed.  In prison, he sues his lawyer for negligence.  The lawyer’s defence is that he was not negligent but that, in any case, the client has suffered no injustice because whatever the lawyer did would not have secured an acquittal.  In seeking to establish the latter point, the lawyer may or may not be able to re-assemble the witnesses who gave evidence for the prosecution.  The question of whether the client should have been acquitted is then tried on evidence which is bound in some respects to be different, before a different tribunal and in the absence of the prosecution.  The civil court finds, on a balance of probability, that the lawyer was negligent and that if he had conducted the defence with reasonable skill, the client would have been acquitted.  Or perhaps that he would have had a 50% chance of being acquitted.  Damages are awarded.  But what happens then?  Does the client remain in prison, despite the fact that a judge has said there was an even chance that he would have been acquitted?  Should he be released, notwithstanding that the prosecution has had no opportunity to say that his conviction was correct?  Should it be referred back to the Court of Appeal and what happens if the Court of Appeal, on the material before it, takes a different view from the civil judge?  The public would not understand what was happening.  So it was said that to allow clients to sue for negligence would allow a “collateral challenge” to a previous decision of another court.  Even though the parties were different, this would be contrary to the public interest.”

40. Lord Steyn at 679 said:

“The third factor is the public policy against relitigating a decision of a court of competent jurisdiction.  This factor cannot support an immunity extending to cases where there was no verdict by the jury or decision by the court.  It cannot arguably justify the immunity in its present width.  The major question arises in regard to criminal trials which have resulted in a verdict by a jury or a decision by the court.  Prosecuting counsel owes no duty of care to a defendant: Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335.  The position of defence counsel must however be considered.  Unless debarred from doing so, defendants convicted after a full and fair trial who failed to appeal successfully will from time to time attempt to challenge their convictions by suing advocates who appeared for them.  This is the paradigm of an abusive challenge.  It is the principal focus of the principle in Hunter v Chief Constable of the West Midlands Police [1982] AC 529.  Public policy requires a defendant who seeks to challenge his conviction to do so directly by seeking to appeal his conviction.

. . .

It is however, prima facie an abuse to initiate a collateral civil challenge to a criminal conviction.  Ordinarily therefore a collateral civil challenge to a criminal conviction will be struck out as an abuse of process.  On the other hand, if the convicted person has succeeded in having his convictions set aside on any ground, an action against a barrister in negligence will no longer be barred by the particular public policy identified in the Hunter case.  But, in such a case the civil action in negligence against the barrister may nevertheless be struck out as unsustainable under the new flexible CPR rr 3.4(2)(a) and 24.2.  If the Hunter case is interpreted and applied in this way the principal force of the fear of oblique challenge to criminal  convictions disappears.”

41. Lord Browne-Wilkinson (at 685) said that if the removal of advocates’ immunity in criminal cases would produce conflicting decisions “public interest demanded” the immunity be preserved. He went on

“… but in my judgment the law has already provided a solution where later proceedings are brought which directly or indirectly challenge the correctness of a criminal conviction.  Hunter v Chief Constable of the West Midlands Police [1982] AC 529 establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such re-litigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute.  In view of the more restrictive rules of res judicata and issue estoppel it is not clear to me how far the Hunter case goes where the challenge is to an earlier decision in a civil case.  But in my judgment where challenge it to an earlier decision in a civil case.  But in my judgment where the later civil action must, in order to succeed, establish that a subsisting conviction in wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute.  Save in truly exceptional circumstances, the only permissible challenge to a criminal conviction is by way of appeal.

It follows that, in the ordinary case, an action claiming that an advocate has been negligence in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands.  Only if the conviction has been set aside will such an action be normally maintainable.”

42. It is true that in this case the plaintiff complains that he was deprived of at least the chance of a successful appeal outcome leading to his conviction being set aside with either a verdict of acquittal being entered or a retrial and acquittal.

43. To succeed in his action he nevertheless had to achieve an outcome which was contrary to the verdict of the jury in his criminal trial. In those circumstances the justification for the collateral challenge rule canvassed in Giannarelli^[27] and Arthur J S Hall^[28] are applicable with the consequence that the action is contrary to public policy and hence an abuse of power.

44. In Secretary of State for Trade and Industry v Bairstow^[29] the Court of Appeal considered what had been said in Arthur S J Hall^[30] about the application of the strike out rule developed in Hunter v Chief Constable of the West Midlands Police^[31] from the perspective of unfairness. 

45. Bairstow^[32] was a case where adverse findings against a director were made in wrongful dismissal proceedings.  There was a subsequent application to disqualify him from serving as a director.  This gave rise to an issue of whether the director’s challenge to a finding of fact made in the wrongful dismissal proceedings were an abuse of process.  It was held that they were not. 

46. After reference to observations by Lord Browne-Wilkinson at 685 and Lord Hoffman at 682 of Arthur J S Hall^[33] the Court of Appeal said (paragraph 38):

“(a)… collateral attack on an earlier decision of a court of competent jurisdiction may be, but is not necessarily an abuse of process.

…

3. if the parties to the later civil proceedings were not parties or privies to those who were parties to the earlier (sic civil) proceeding it would only be abuse of process if it would manifestly unfair to a party that the issues be re-litigated”.

47. In so far as considerations of unfairness are relevant here for reasons canvassed in [32] they would justify the action being struck out as an abuse of process.

48. The decision of the Court of Appeal (Victoria) in D’orla-Ekenarke v Victorian Legal Aid^[34] was drawn to my attention.  It was said to be likely to give rise to the High Court canvassing issues relevant to this case, notably advocate’s immunity.  The plaintiff in that case was acquitted so the verdict of the jury is not called into question.  Further as I have said the application does not turn on advocate’s immunity.

49. In my view the plaintiff’s action is contrary to public policy in that it necessarily involves a collateral attack on his convictions and hence is an abuse of process. It should be struck out. On the view I take of the matter it is unnecessary to consider the second basis for striking out the action.