Hammerschlag J of the Supreme Court of New South Wales in Edward Moses Obeid Snr -v- David Andrew Ipp [2016] NSWSC 1376 has found at [293]-[297] that Counsel Assisting the Independent Commission Against Corruption (“ICAC”) was entitled to the barristers’ immunity from suit when he cross-examined witnesses in the course of a public inquiry held by ICAC into allegations of corruption.

The plaintiffs had claimed that Counsel Assisting had committed the tort of misfeasance in public office but Hammerschlag J dismissed this claim for a number of reasons including that Counsel Assisting had the benefit of the immunity provided for in s 109(3) of the Independent Commission Against Corruption Act 1988 (NSW) (“ICAC Act”). That subsection provides as follows:

“An Australian legal practitioner assisting [ICAC] or representing a person before [ICAC] has the same protection and immunity as a barrister (within the meaning of the Legal Profession Uniform Law (NSW)) has in appearing for a party in proceedings in the Supreme Court.”

The plaintiffs had submitted that the immunity was only available in relation to work that contributed to a judicial determination of litigation and so was not available to Counsel Assisting because there was no such determination in an ICAC inquiry. In making this submission, the plaintiffs had relied on the plurality judgment in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16; (2016) 90 ALJR 572 which had made it clear that the advocate’s immunity from suit did not extend to acts or advice of the advocate which did not move litigation towards determination by a court.

His Honour, however, rejected this submission saying that the effect of s 109(3) of the ICAC Act was to confer upon a legal practitioner in relation to assisting ICAC, or representing a person before ICAC, the full extent of the traditional immunity which a barrister would have in the Supreme Court, on the basis that the barrister had it there, and that parliament could not have intended a barrister before ICAC only to have immunity where there was a judicial determination because s 109(3) would then have no work to do given that there was never a judicial determination before ICAC.

Accordingly, his Honour concluded that Counsel Assisting had the benefit of the immunity, notwithstanding that there was no judicial determination of litigation in an ICAC inquiry.

Note:

Section 89(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is in similar terms to s 109(3) of the ICAC Act. It provides protection from liability to legal practitioners appearing before the Civil and Administrative Tribunal of New South Wales (NCAT).

Button J of the Supreme Court of New South Wales in Cairncross v Anderson t/as ERA Legal (No 2) [2016] NSWSC 1326 has identified a number of principles contained in the plurality judgment in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16; (2016) 90 ALJR 572 (“Attwells”).

According to his Honour, those principles (at [31]-[40] (omitting references to the cases)) are as follows:

• The existence of the advocate’s immunity from suit in Australia is confirmed.
• The immunity protects an advocate involved in the conduct of litigation in court from suit arising from that conduct.
• The immunity continues to extend to work done out of court by an advocate, but only to work which leads to a decision affecting the conduct of the case in court. In other words, it remains the case that no sharp point of distinction is drawn between the work of an advocate inside and outside the courtroom.
• However, the extension of the immunity to work done outside the courtroom is strictly limited. In particular, the immunity does not extend to all work in any way connected to litigation. There must be an intimate connection.
• For the immunity to apply to work done out of court, the intimate connection that must exist between the work done in court and the work done out of court must be a functional connection between the advocate’s work and the judge’s decision.
• Mere connection, whether chronological or otherwise, between work done out of court by an advocate and work done in court, without the requisite functionality of connection or intimacy of connection, will not attract the immunity.
• The immunity is confined to work done in or out of court that plays a role in the ultimate judicial determination of the litigation. The rationale underpinning the immunity is founded upon finality of judicial determinations in the sense of making findings of fact or law, and quelling controversies.
• For that reason, work done in or out of court resulting in consent orders (and analogous outcomes) does not generally attract the immunity.
• The plurality left open the question of the attraction of the immunity to certain kinds of “consent” orders at [61] of its judgment, namely, those cases where, although the parties have agreed upon the terms of the order which a court is asked to make, the making of the order itself requires the resolution of issues by the exercise of judicial power, for example, where representative proceedings are settled, where proceedings on behalf of a person under a legal incapacity are to be compromised and similar such cases.

At [41] of his judgment, Button J gave a hypothetical example of the “very limited extent” to which he considered the immunity extended to work done by an advocate out of court and, at [42], said that Attwells had firmly confirmed the circumscribed role that the immunity had to play with regard to such work.

In the case before his Honour, a motion had sought to have the plaintiff’s claim against a firm of solicitors struck out on the basis that it was doomed to failure because of the operation of the immunity. At [44], his Honour said that, as regards the NSW proceedings, they prima facie fell within the special category identified by the plurality of the High Court in its judgment at [61] but because the question of the attraction of the immunity to that category had been left open, it was not possible to be satisfied that the claim was doomed to fail.

For a detailed summary of Attwells, see K Ottesen, “Attwells v Jackson Lalic Lawyers Pty Limited – High Court retains advocate’s immunity from suit but holds that out of court settlements are outside its scope”, 18 May 2016.

Introduction

The Supreme Court of New South Wales in IMBK Pty Ltd v Zheng Tan [2016] NSWSC 1175 (“IMBK”) has refused to refer a litigant to the registrar for referral to a lawyer on the Pro Bono Panel for legal assistance under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).  Although the Court found that, having regard to the nature and complexity of the proceedings, it was in the interests of the administration of justice that the litigant have legal assistance, the Court refused to make the order because the evidence of the defendant’s means and his capacity to obtain legal assistance outside the statutory scheme was inadequate.

Rule 7.36

Rule 7.36 of the UCPR relevantly provides:

“(1)   If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2)   For the purposes of subrule (1), the court may take into account:

(a)   the means of the litigant, and

(b)   the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)   the nature and complexity of the proceedings, and

(d)   any other matter that the court considers appropriate.”

Rule 7.36 is contained in Div 9 of Pt 7 of the UCPR which establishes a scheme for court appointed pro bono legal assistance. The purpose of Div 9 is to facilitate the provision of legal assistance to litigants who are otherwise unable to obtain assistance, where it is in the interests of the administration of justice (r 7.33(2)). However, the provision of such legal assistance is not intended to be a substitute for legal aid (r 7.33(3)).

Nothing in Div 9 requires the court to make a referral, or to consider a litigant’s case for referral, under Div 9 (r 7.33(5)) and, if a referral is made, it does not mean that the court has formed an opinion on the merits of a litigant’s case (r 7.33(4)).

IMBK

The substantive proceedings in IMBK related to an agreement between the plaintiff and the defendant whereby the plaintiff was to transfer a sum of money in Australian currency to the defendant in Australia in exchange for the defendant paying a sum of money in Chinese currency, the Renminbi (RMB), to the plaintiff in China.  The precise terms of the agreement and whether it had been performed were in dispute. The plaintiff claimed that it had paid to the defendant the agreed amount of Australian currency in accordance with the agreement alleged by it to have been made between the parties but that the defendant had not paid the agreed amount of RMB. The defendant, on the other hand, claimed that his father-in-law in China, on his behalf, had paid the amount of RMB which was required to be paid in accordance with the agreement alleged by him to have been made but that he had not received payment of the full amount of the Australian currency to which he was entitled.

Initially, the defendant had had legal representation in the proceedings but had ceased to be legally represented. He made an application for an order under r 7.36 of the UCPR referring him to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

White J heard the application in the Equity Duty List.

His Honour was satisfied that it would be desirable for the defendant to have legal assistance in the proceedings, but was not satisfied that the defendant’s affidavit in support of his application was sufficient to justify making an order. This was because the affidavit did not describe all of the defendant’s assets or liabilities and did not address the question as to whether the defendant could be funded by third parties, such as his father-in-law. His Honour directed the defendant to provide a further affidavit.

Further evidence was provided by the defendant who claimed, amongst other things, that:

• he owned no property or a motor vehicle “under my name”;
• he and his wife and children lived in an apartment which his father-in-law had purchased for his wife and which was subject to a mortgage; and
• he and his family were being supported by his family in China and by his father-in-law who were wiring them money from China.

No details of the value of the wife’s apartment or the extent of the mortgage were given. There was no evidence of any attempt to obtain legal representation otherwise than through the Law Society or Legal Aid.

White J considered that the further evidence was also inadequate, stating at [17]:

“I am satisfied having regard to the nature and complexity of the proceedings that it is in the interests of the administration of justice that the defendant have legal assistance. But the evidence of the defendant’s means and his capacity to obtain legal assistance outside the scheme is inadequate. He has not given adequate evidence of his assets and liabilities, including whether any assets are held for him in someone else’s names. He has not given evidence of his wife’s assets or whether she is prepared to make them available for his use. He has not given evidence of his income. He has not explained how the moneys received from his father-in-law have been applied. He has not shown that he cannot obtain legal representation otherwise than through Legal Aid or the Law Society’s ‘service scheme’.”

Accordingly, his Honour concluded that he was not satisfied that it was in the interests of the administration of justice that the defendant be referred to the registrar for referral to a lawyer on the Pro Bono Panel for legal assistance and dismissed the application.