Boland v. Yates Property Corporation Pty Ltd

167 ALR 575

---

(Judgment by: Kirby J.)

Boland v Yates Property Corporation Pty Ltd
Webster v Yates Property Corporation Pty Ltd

Court:

Judges: Gleeson CJ
Gaudron J
Gummow J

Kirby JHayne J
Callinan J

Hearing date: 3-5 August 1999
Judgment date: 9 December 1999

Canberra

---

Judgment by:
Kirby J.

[117] These appeals challenge orders of the Full Court of the Federal Court of Australia (Full Court). ^[96] That court reversed a decision of the primary judge (Branson J). ^[97] It upheld the arguments of Yates Property Corporation Pty Ltd (Yates), supported by its controlling shareholder, Mr Ian Yates (who was added as a party). They argued that the appellant legal practitioners were liable in negligence to Yates. The alleged defaults of the appellants concerned the claim which Yates made, the evidence it called and the arguments it advanced in proceedings in the Land and Environment Court of New South Wales. Those proceedings involved Yates' claim for compensation pursuant to the Darling Harbour Authority Act 1984 (NSW) s 12C. That claim arose out of the compulsory acquisition of Yates' property at Darling Harbour, near Sydney. Mr John Boland (the appellant in the first appeal) is a representative of the partners of the firm of solicitors (the solicitors) whom Yates retained to advise and represent it. Mr John Webster (the appellant in the second appeal) (the barrister) is a member of the New South Wales Bar. He was at one time a property valuer. Relevantly, he was junior counsel retained by the solicitors to advise Yates and, with senior counsel, to represent Yates in the proceedings.

The issues

[118] The circumstances giving rise to the proceedings, the applicable legislation, the history of the litigation and the essential reasons of the primary judge and of the Full Court are set out in the opinions of Gleeson CJ and of Callinan J. I will refrain from unnecessary repetition. Many issues were argued or mentioned before this court. Principal among those issues were the following.

(1)

The " special value " issue : In the elaboration of statutory provisions, ^[98] obliging the resuming authority to pay Yates compensation for "the value of the land", is there a principle entitling the party affected to compensation for any "special value" of the land to it? If so, what is its content? Did it apply to Yates in these proceedings and what was its value in money terms? In the context of the applicable legislation would the notion of "special value" be fundamentally inconsistent with the hypothesis essential to the calculation of "the value of the land", as distinct from compensation for the other losses suffered by the owner of the land as a result of the compulsory acquisition?

(2)

The " head start " issue : Did any such "special value" include, in the circumstances found to exist, a component known as "head start"? ^[99] Was this a time-related advantage enjoyed by a particular landowner which entitled it, in accordance with the legislation and applicable principles, to additional compensation for such "special value" over and above the compensation which the landowner would otherwise recover for "the value of the land"? If so, in the facts found, did such "head start" component apply to Yates' entitlements?

(3)

The negligence issue : To the extent that issues (1) and (2) were affirmed as applicable principles of valuation, did the appellants respectively fail to advise Yates about its entitlement to claim "special value" for the "head start" which Yates enjoyed? If they did, did they thereafter fail to plead such a claim and procure the evidence necessary to prove it in the proceedings for compensation? If so, by the standards of reasonable care applicable to the appellants (as respectively a large firm of solicitors and a barrister, both claiming to have special expertise in the field of land valuation law), did this amount to negligent advice and conduct entitling Yates to recover damages for its consequential loss?

(4)

The evidentiary issue : Assuming that issues (1), (2) and (3) were otherwise resolved in favour of Yates, is it a complete answer to the claims by Yates that the facts found by the primary judge show that the solicitors and barrister advised upon, and procured evidence relevant to, that claim from valuers of incontestable expertise, and that all evidence relevant to such claim was in fact placed before the judge who had the responsibility of determining the compensation to which Yates was entitled? Did this constitute a complete discharge of the duties owed by the solicitors and barrister to Yates so that any complaint which Yates might have concerning a suggested error or oversight in the provision of compensation for the "head start" component was one to be corrected by appeal from the judge's calculation of compensation (such as in part occurred), and not by a claim for recovery against the solicitors or the barrister for their supposed negligent errors or oversight?

(5)

The professional judgment issue : The primary judge accepted as honest the evidence of the barrister and of senior counsel (Mr T Simos QC) who represented Yates in the initial compensation proceedings. She accepted that they had given consideration to a claim for "special value" and had subsequently concluded that propounding such a claim presented certain difficulties or dangers to the recovery by Yates of maximum compensation for "the value of the land". In these circumstances, did the manner in which the claim for compensation was initially mounted in the original proceedings in the Land and Environment Court constitute a reasonable exercise of their professional judgment? Even if, in retrospect, the precise conduct of the case were judged to be less than ideal, was it such as to rebut a claim of negligence on the part of the barrister, amounting to a reasonable exercise of his professional judgment as to the best interests of the client, Yates, in a complex and imprecise area of the law?

(6)

The barrister's immunity issue : Having regard to the actions on the part of the barrister which were alleged by Yates to constitute negligence on his part, was he entitled to immunity from liability to a claim in negligence on the basis that he could not be sued by Yates in respect of his conduct of the case in court or for work out of court which led to a decision affecting the conduct of the case in court? ^[100] Is it an answer to such a claim to say, in this case, that the advice given by the barrister concerning the existence or otherwise of a cause of action, and the elements of that cause of action were neither in-court conduct by the barrister nor otherwise such as to attract the immunity from a suit in negligence? ^[101] Or was the advice on the part of the barrister, now impugned by Yates as negligent, although given out of court, so intimately connected with, or ancillary to, the conduct of the case in court as to attract the barrister's immunity from legal liability? ^[102]

(7)

The solicitors' immunity issue : Having regard to the function of solicitors generally, and that of the solicitors in this case in particular, if the barrister is entitled to immunity in respect of the negligence alleged by Yates, were the solicitors also entitled to immunity in respect of a claim in negligence or for a suggested negligent breach of the contract of retainer with Yates? In the facts found by the primary judge, given the role actually played by the solicitors, barristers, experts and Mr Yates himself for or on behalf of Yates, did the solicitors adequately discharge their separate duty of care to Yates by retaining barristers of accepted expertise in the field, securing expert witnesses of requisite knowledge and skill and then acting as advised by them? Even if the solicitors owed a duty ^[103] to advise Yates of any error or oversight on the part of the barristers retained by them, was there any breach of such duty given the advice which the barristers gave and the evidence to which the expert witnesses deposed, the problematic and disputable features of the applicable law and the absence of previous reference in legal authority to the component of "head start" which formed the foundation for Yates' claim of error and oversight on the part of the solicitors and barrister concerned?

(8)

The reopening of the immunity issue : In the event that, either as against the barrister, or the solicitors, or both, the claim by Yates would fail by reason of the immunity from suit enjoyed by the legal practitioner or practitioners concerned, Yates asked this court to reopen and reconsider its holding in Giannarelli . ^[104] Should the holding in Giannarelli be reviewed to abolish entirely the immunity from suit of barristers and solicitors (to the extent that the latter are entitled to the immunity), thereby rendering them all liable to their clients for defaults in the same way as members of other professions? Alternatively, should any such immunity be confined to the conduct of a barrister or solicitor-advocate in relation to criminal proceedings? Or should the immunity be limited to proceedings in court generally, so that the line is drawn at the door of the court? Should there be no immunity for anterior advice on a cause of action, on tactics, the presentation of a claim, witnesses to be called, negotiations for settlement etc all of which can be assessed out of court without the particular pressures imposed upon an advocate's courtroom decisions? Given the statement of the law in Giannarelli and other statements in England, ^[105] New Zealand ^[106] and Ireland, ^[107] is any change in the principle established by Giannarelli one which may legitimately be made by this court? Or is it a change, potentially with significant retrospective operation on the civil liabilities of many persons, such that it should only be introduced by a legislature, able to consider the limitations to be imposed and with notice which would afford those affected the opportunity of securing insurance or taking other steps to minimise their exposure to liability hitherto thought not to exist? ^[108]

(9)

The statutory claims issue : Even if the immunity from suit of the kind upheld in Giannarelli applies to a claim against solicitors and a barrister framed in negligence (and in the case of the solicitor, in negligent breach of the contract of retainer), would such immunity extend to the separate claims brought by Yates based on the provisions of the Trade Practices Act 1974 (Cth) ^[109] and the Fair Trading Act 1987 (NSW)? ^[110] Yates conceded that if the claims in negligence against the barrister and solicitor were dismissed on their merits, no claims under the statutes could succeed. However, Yates asserted that if the claims in negligence were dismissed only upon the basis of the applicable immunity, the claims under the statutes would be pressed with the contention that a common law immunity, of whatever extent, could not defeat any entitlements to which Yates was entitled under the statutes. ^[111]

(10)

The appellate court issue : Concluding as it did, in the appeal from the decision of the primary judge, did the Full Court err in making findings of fact inconsistent with the findings made by the primary judge where her findings were dependent, in whole or part, upon her conclusions as to the acceptability of the evidence of Mr Yates given in the case for Yates? Alternatively, did the Full Court rest its conclusions upon a mistaken understanding of the history of the original proceedings for compensation? To the extent that the Full Court departed from the findings made by the primary judge which were not dependent on her views as to Mr Yates' credibility, did it give any or sufficient reasons for doing so, taking into account the fact that the proceedings at trial involved a seven week hearing and a very large amount of evidence and argument which afforded the primary judge considerable advantages, that an appellate court would find difficult to recapture? ^[112]

Two crucial arguments: immunity and negligence

[119] Among the foregoing issues, the mind, like quicksilver, searches for the crucial points, the answers to which will yield most efficiently a resolution of the many matters in contention between the parties. In effect, the appellants tendered two central arguments either of which, if it succeeded, would entitle them to victory. The first was the claim that they were severally entitled to the immunity from suit afforded to legal practitioners for the acts and omissions upon which Yates founded its claims of negligence (and in the case of solicitors, negligent breach of contract). The second was the claim that, by the standards of reasonable care and diligence applicable to them, the appellants were not negligent.

[120] Pursuing the claim to immunity has a certain attraction. It would allow the decision-maker to proceed directly to what is argued as a complete answer, in law, to the substance of the claim as made. An answer upholding the appellants' arguments on this point would substantially obviate the necessity of investigating the detail of the facts and the findings about those facts which would be essential in deciding the issues relevant to the suggested negligence of the solicitors and barrister (issues 3, 4, and 5 above). It would save the court from the rather unsatisfying task of examining the "principles" developed by the courts (including this court) to flesh out the meaning of the simple phrase "the value of the land" which provided the statutory foundation for Yates' entitlement to compensation. Many of those so-called "principles" are "ambiguous and contentious". ^[113] They may be necessary in cases of this kind, in the same way as the "principles" of sentencing are necessary. They may help to guide the decision-maker to a rational, just and consistent process of decision-making. However, like the "rules" governing sentencing, ^[114] the "principles" governing the valuation of land in cases of its compulsory acquisition involve inconsistencies, overlaps, internal conflicts and occasional illogicalities that make their exploration a rather unrewarding one. It is not a task to be embarked upon with enthusiasm or in the absence of clear necessity.

[121] In the present appeals, there is an additional reason for considering, at the threshold, the appellants' contention of the immunity from suit. This is because, to the extent that the negligence issues (issues 3, 4 and 5 above) necessitate consideration of the valuation issues (issues 1 and 2 above), they invite examination of those questions in inappropriate proceedings between inapposite parties.

[122] The proceedings are inappropriate because, in point of law, the appropriate vehicle for challenging the holdings of the New South Wales courts about "special value" and the suggested component for Yates' "head start" was either by way of an application for special leave to appeal to this court from the decision of the Court of Appeal ^[115] or by the pursuit by Yates of its appellate rights against the redetermination of compensation made by Cripps J after his initial decision was set aside by the Court of Appeal. ^[116] Although in each case appellate proceedings were contemplated, and even commenced, they were not ultimately pursued by Yates. In these proceedings the content of valuation law is a necessary ingredient in the claims against the solicitors and barrister. But it is not under direct challenge as it would have been had the earlier appeals been pursued and decided by this court.

[123] The parties are also inapposite because, in the Federal Court and in this court, there was no contest that Yates was entitled to compensation on the basis of "special value". There is, therefore, no contradictor to dispute Yates' entitlement on that score. The clarification of the content of the "principle" of compensation for "special value" of land to the owner (and of any supposed elaboration of that "principle" in terms of the so-called "head start" which a particular owner enjoys by reason of steps taken by it) would be far better decided in a case where the entitlement to "special value" was in issue. Similarly, the concepts of "special value" and "head start" and their differentiation from other established heads of compensation would be better clarified in proceedings in which at least one party was contesting both their applicability and content. These are advantages which this court does not have in the present appeals so far as "special value" is concerned. All parties were in ardent agreement that Yates was entitled to compensation on that footing.

[124] Notwithstanding the special problems that would remain to be addressed in respect of the claims by Yates based in statute, there are therefore a number of attractions to considering the claims for immunity at the threshold, as the appellants urged. This could permit this court to ascertain whether the appellants are wholly exempted from liability to Yates, as they contend. The primary judge indicated that she would have reached this conclusion had a decision on the immunity point been necessary. ^[117]

Scope of legal practitioners' immunity from suit

[125] Let the negligence (and in the case of the solicitors, additionally, negligent breach of the contract of retainer) on the part of the appellants be accepted as a hypothesis (despite the appellants' strenuous denials). Can it be said that in each case the claims by Yates are nonetheless inadmissible in law because, on the uncontested facts as to their relationships with Yates, the appellants are entitled to the immunity from suit for their conduct of the litigation?

[126] The respective positions of the appellants are not identical in this regard. The barrister was entitled to any immunity belonging to a barrister in a profession observing the traditional distinctions derived originally from the English legal profession, between the respective roles of a barrister and a solicitor. At the time of the events in question in these proceedings, New South Wales was a jurisdiction which substantially observed those distinctions. ^[118] The barrister submitted that, in accordance with the decision of this court in Giannarelli , a barrister could not be sued by Yates for negligence in the conduct of Yates' case in the New South Wales courts or for work outside those courts "which leads to a decision affecting the conduct of the case in court". ^[119] Because the entirety of the preparation of Yates' case by the barrister was directed to the formulation and proof of the claim on behalf of Yates, the gathering of evidence and the preparation of submissions in relation to the proceedings in the Land and Environment Court, it was argued that, within the principle of Giannarelli , the barrister was wholly immune from Yates' suit. Accordingly, there was no necessity to consider any other issue as relevant to the barrister's suggested liability. In effect, the suit against him was totally misconceived. Subject to any special questions raised by the claims based on statute, it ought not to have got as far as it did. ^[120]

[127] So far as the solicitors were concerned, they also sought the protection of the legal immunity. They did so not on the basis of any in-court conduct or because they fell into the category of a "solicitor-advocate". ^[121] Instead, they relied on the argument that the "policy considerations which support the immunity of advocates would support such immunity being extended to [the solicitors]". ^[122] Thus, the solicitors submitted, it would be "an anomalous and unjustifiable distinction if, in respect of advice and decisions affecting the conduct of proceedings, counsel should have immunity but the solicitors should not where both are held to be obliged to give the same type of advice in respect of the conduct of the proceedings". ^[123]

Reasons why the legal immunity is inapplicable

[128] In my view these appeals cannot be disposed of on the basis of the immunity issues (issues 6, 7 and 8 above). Contrary to the opinions stated by other members of this court, ^[124] it is my opinion that Giannarelli , so far as it expresses the immunity from suit enjoyed by legal practitioners in Australia, is confined in its holding and should not be expanded in its application. In my respectful view, the minority opinion in the New South Wales Court of Appeal in Keefe v Marks is to be preferred. ^[125] In this respect, I favour the general approach of the Full Court of the Federal Court concerning the scope of the legal immunity from suit. ^[126] In particular, I agree with their Honours' criticism of the argument ^[127] that a barrister's negligent advice as to whether a cause of action exists falls within the immunity. ^[128] I regard such a view of the ambit of the immunity as erroneous. It pushes the advocate's protection from an action for negligence beyond any point that could be justified by binding authority or public policy. My reasons for these conclusions are as follows.

[129] First, an immunity from liability at law, to the extent that it exists, is a derogation from the normal accountability for wrong-doing to another which is an ordinary feature of the rule of law and fundamental civil rights. ^[129] Being held liable in law for negligence is unpleasant. However, such liability extends to other professions such as surgeons, physicians, architects and accountants, many of whom have to make decisions at least as difficult and often as urgent as those typically made by legal practitioners, including advocates. ^[130]

[130] The provision of an immunity from suit by the law to practising professionals of its own discipline is criticised by other professionals. They contrast the imposition upon them of ever more stringent obligations of care ^[131] with the immunity accorded by the law to its own. This contrast has been noted in much legal writing. ^[132] Potentially, the immunity has a significant economic effect on justifiable loss distribution in a generally inelastic market. ^[133] To the extent that a legal immunity survives for advocates at common law, it needs to be fully justified by considerations of binding legal authority and incontestable arguments of legal policy. ^[134] To the extent that legal authority is uncertain, the immunity, being anomalous, should not be expanded. The scope of the immunity, rather than being enlarged, should be confined to essentials.

[131] Secondly, the immunity of barristers from suit has derived from historical, social and professional circumstances many of which have since changed markedly. The changes that have occurred suggest the need to reconsider the foundations, or at least the scope, of the immunity. At one stage, the immunity of barristers was explained by reference to their inability to sue the client for professional fees. ^[135] However, it is now accepted that this fact alone could not justify the immunity. ^[136] It would be absurd to suggest that an honorary surgeon was relieved of the legal duty to perform the skills of that profession without negligence; or for that matter that any service provider, relied upon by a client, was exempt from a legal duty of care because he or she provided a service without fee. ^[137]

[132] The law affording the immunity to a barrister was substantially developed at a time when a person injured could not recover for harm occasioned by negligent advice. With respect to negligent misstatements causing economic loss, that anomalous rule was overthrown following the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd . ^[138] Such liability now attaches in Australia to members of the legal and other professions. ^[139] There would need to be extremely sound reasons, that could not be criticised as merely self-interested, to exempt legal practitioners from the economic consequences of negligent advice, given that such consequences attach to so many other advisers with no immunity or exception.

[133] Thirdly, the social and economic circumstances in which the immunity of legal practitioners developed in England have changed. Many of them are inapplicable to contemporary Australia. Grounding the immunity in a judicial appreciation of the position of barristers, as the small professional cadre from which most judges are drawn, seems out of place in the egalitarian social circumstances of this country. ^[140] In any case there are many more barristers today than in earlier times at the bar. It is differently organised in different Australian jurisdictions. Solicitors increasingly practise in very large, even national and international, partnerships. Specialisation of practice both of solicitors and barristers has increased in recent years. The number of non-barrister advocates has expanded. Proposals for multidisciplinary practices with other professions are under consideration. Professional indemnity insurance is standard, and not just for solicitors.

[134] Legal advice, directed ultimately or potentially at litigation, may involve huge financial undertakings. The welfare of many people and the safety of their persons and capital may depend upon the accuracy and comprehensiveness of the advice given. In transnational situations, the advice of legal practitioners in several jurisdictions may be obtained, most of whom could claim no immunity from suit in the case of negligently mistaken advice. The foregoing considerations suggest the need for scrupulous examination of the reasons given for affording immunity from suit to legal practitioners in contemporary Australia. They also suggest that, where the immunity exists as a matter of law, it should be confined to cases where it is clearly essential and fully justified by undisputed legal authority resting on compelling legal policy.

[135] Fourthly, when attention is focused on the reasons of policy commonly advanced for maintaining the immunity, the given reasons do not, in my respectful view, always bear close analysis. Certainly, they do not justify expanding the immunity beyond that of protecting the conduct of a legally qualified advocate when engaged, as such, in conduct performed in court. It is here only that the advocate is in a position analogous to that of the judge, juror, witness or court official who cannot by law be sued for their acts and omissions as such. ^[141] It is here that instant decisions must be made and judgments exercised which involve the advocate in the inexact but important functions of advocacy with its special contribution, in the adversary system, to the administration of justice. ^[142] It is here, primarily, that the advocate must fulfil the "paramount" ^[143] duties to the court even where these incur "the displeasure or worse of his client". ^[144]

[136] While it is true, as Mason CJ observed in Giannarelli , ^[145] that decisions made outside the courtroom inevitably affect the conduct of proceedings that later occur in that place, and while the drawing of the line of immunity may be difficult on some of the tests propounded, most of the reasons which sustain a measure of immunity for conduct in court lose their urgency in respect of decisions which the advocate can make in the comparative calm of the office or chambers. ^[146] It is in the courtroom that the advocate is brought to immediate account before the judicial power which is invoked. It is there that difficult and usually instantaneous decisions must be made that may necessitate subordination of the wishes of the client to the duty to the court. ^[147] It is there too that the advocate is, with judge, juror, witness and court official, an actor in the public functions of the state and not (as is usually otherwise the case), simply another professional person engaged in private practice for personal reward. ^[148]

[137] It is obviously desirable that a clear line establishing the limits of an advocate's immunity should be drawn. No bright line can be derived from the test borrowed in Giannarelli ^[149] from that propounded by McCarthy P in Rees v Sinclair . ^[150] That test is expressed in terms of the "intimate connection" of the particular pre-trial work for which immunity is claimed with the conduct of the cause in court. The phrase is capable of being expanded to include a large proportion, perhaps most, of the advice given by many barristers and this demonstrates its potential overreach. This is evidenced in a number of cases since Giannarelli . ^[151] Tradition may sustain those decisions. So may an understanding for the occasional mistakes of the particular profession involved. But the proper accountability of advocate advisers, the protection of the public and a non-discriminatory application of general principles of legal liability to the law's own profession suggest to my mind that the immunity has been pushed far beyond its essential ambit.

[138] Fifthly, the contention that the narrowing of the immunity would open the floodgates to litigation and expose to suit advocates and other legal practitioners, destroying the finality of judicial proceedings and encouraging relitigation of the original case, ^[152] does not bear objective examination of the evidence. Nor does the occasional embarrassment of conflicting opinions of courts of coordinate authority (or the suggested peril that every advocate will become a pedant for detail, chasing "every rabbit down its burrow" for fear of a negligence suit by the client) justify an over-broad immunity. ^[153] There is no such immunity from suit for attorney-advocates in the United States of America. ^[154] This has not led, in that litigious country, to a flood of malpractice suits against attorneys for their failure to prepare and present the client's case with reasonable care, skill and diligence. The courts of that country have recognised that an attorney is not liable for an error of judgment made in the conduct of litigation where he or she has acted in good faith and with an honest belief that the action taken is in the best interests of the client. ^[155]

[139] In Canada too, there is no general immunity for a legal practitioner. The attempt to import into Canada the rule in Rondel v Worsley ^[156] was rejected in Demarco v Ungaro . ^[157] Instead of cloaking legal practitioners in that country with a general immunity, the courts have preferred to fashion rules which recognise the special problems that legal practitioners often face in conducting legal proceedings and giving legal advice. ^[158] Cases exist in Canada where legal practitioners have been held liable for negligent mistakes that have occurred in the preparation and even the presentation of a case for trial. ^[159] The rule applied in Canada is that stated by Matheson J in Garrant v Moskal : ^[160]

[T]he public interest in the administration of justice does not require that lawyers engaged in court work be immune from action at the suit of their clients for negligence in the conduct of a civil case in court. With respect to the duty of counsel to the court and the risk that, in the absence of immunity, counsel will be tempted to prefer the interests of the client and thereby prolong trials ... there is no empirical evidence that it is so serious to justify rendering the client remediless.

[140] It is true that the organisation of the legal profession in the United States and Canada is different from that in England, Ireland and New South Wales at the times relevant to the present proceedings. However, the experience in North America appears to contradict the fears mounted by the defenders of immunity of a flood of bogus and worthless claims against legal practitioners. In any case, there are remedies against unmeritorious claims. The experience in Canada and the United States also demonstrates that the doctrinal limitations inherent in the tort of negligence (or negligent breach of the contract of retainer where applicable) are usually sufficient to safeguard the legal practitioner from the prospect of a flood of claims relitigating matters in courts of coordinate jurisdiction. In Australia, there are further inhibitions which are not always available in the United States, including costs orders. ^[161] The solution to the problem of unmerited claims "does not involve bolting the door against meritorious plaintiffs". ^[162] Certainly, it does not involve extending the immunity beyond that which clear legal authority, founded on persuasive legal policy, fully justifies. ^[163]

[141] Sixthly, while in contemporary Australian circumstances it seems appropriate to assimilate the solicitor-advocate with the position of a barrister so far as the protection of any immunity from suit is concerned, the solicitors in these proceedings could not invoke such protection. ^[164] At no stage did they act as advocates. The proper analysis of the duty of care owed by a solicitor, other than in respect of in-court advocacy, is to be found not in any immunity secured by analogy, inference or suggested necessity from the immunity enjoyed by a barrister-advocate retained by the solicitor. It rests instead upon general principles governing the liability of a solicitor, operating in a divided legal profession, where he or she has retained a barrister to provide advice and, if it proves necessary, for the barrister to conduct any proceedings in court that may ensue. In such a case the solicitor will, in general, be entitled to act in accordance with instructions given by the client on the basis of the barrister's advice, so long as the solicitor has taken care to retain a barrister of competence with the skill necessary to advise and represent the client in the field of legal practice in question and has properly and competently instructed the barrister to the best of the solicitor's care, skill and ability. ^[165]

[142] Ordinarily in a divided legal profession it is responsible conduct for a solicitor (particularly if he or she has no disclosed specialist experience in a field of legal practice) to rely upon a competent barrister's advice. Doing so makes proper use of the specialised bar. However, the solicitor must not accept the barrister's advice blindly. He or she retains a legal duty to the client, separate, independent and personal, both by reason of the general law of negligence and the contract of retainer. The solicitor must exercise independent judgment to the extent that it is reasonable to demand this having regard to the solicitor's reputed knowledge and experience, the complexity of the case and the skill and experience of the barrister who has been retained. If the solicitor reasonably considers that the barrister's advice is obviously wrong, it is the solicitor's duty to reject that advice and to advise the client independently, including as to the wisdom of retaining a fresh barrister. ^[166] In a divided profession, the immunity enjoyed by an advocate does not automatically extend to a non-advocate solicitor. ^[167] The answer which such a solicitor, who has retained a barrister, may give to a client's later allegation of negligence is not that the solicitor is immune from suit. It is that, although liable to suit, the solicitor is not negligent because reliance on the advice of the barrister was proper and reasonable in the circumstances and no occasion arose for that advice to be rejected.

The narrow holding in Giannarelli

[143] From these considerations of principle and policy I return to what this court actually held in Giannarelli . ^[168] Did its holding in that case apply (subject to the separate issue presented by the statutory claims) to knock out the claim by Yates against the solicitors and barrister in these proceedings?

[144] As Priestley JA remarked in Keefe v Marks , ^[169] finding the ratio decidendi in a case where every member of this court wrote separately (and three dissented from the orders of the court) involves "to mutilate Kipling ... nine and sixty ways of construing judges' lays, and every single one of them is wrong". However, there are certain basic rules. Tedious although the ascertainment of the binding principle of a case may sometimes be, it remains a duty not only of courts subject to this court's authority ^[170] but also of the members of this court and especially when they are invited (as we have been) to reopen past authority and to reconsider a previous holding.

[145] Giannarelli involved the alleged failure of four legal practitioners in Victoria to notice and raise in defence of their clients (the Giannarellis) certain provisions of the Royal Commissions Act 1902 (Cth) ^[171] which rendered evidence given by the clients to a Royal Commission inadmissible in criminal proceedings later brought against them. The clients were charged and convicted of perjury in evidence given before the Royal Commission. They were sentenced to custodial punishment. One of them did not appeal. The others appealed unsuccessfully to the Court of Criminal Appeal of Victoria. Only when the special leave hearing reached this court was the provision of the Royal Commissions Act raised for the first time. One of the four legal practitioners was the appellants' instructing solicitor. The others were their barristers. The negligence proceedings against the instructing solicitor were ultimately withdrawn. Although he remained a nominal party (appellant) his separate situation was not before this court for its determination. ^[172] No holding of the court in Giannarelli , therefore, purported to concern the liability in law of a non-advocate instructing solicitor. On the contrary, because of the invocation of the Legal Profession Practice Act 1958 (Vic) s 10(2), the sole question for the holding of the court related to the liability of legal practitioners in Victoria who practised exclusively as a barrister. Accordingly, nothing in Giannarelli binds this court or any other Australian court to a rule governing the immunity of solicitors. At most, there are remarks, not binding as a matter of legal authority, concerning the status of solicitor-advocates. ^[173]

[146] The claims of the clients in Giannarelli expressed the negligence alleged against the barristers in terms of their failure to advise that the Royal Commissions Act would render the evidence given by the clients to the Royal Commission inadmissible (and thus defeat the Crown case) as well as their failure to object to the tender of that evidence in the criminal trials. However, only the latter failure was critical. This was because the effect of the Act was confined to rendering the evidence inadmissible in (criminal) proceedings. It thus addressed, at least ultimately, what the barristers did in the conduct of the proceedings in court. They might have failed to notice the defence earlier when representations to the Crown or other pre-trial steps could have been taken. But the critical omission on their part, and the one causing the real damage to the clients, arose during the actual conduct of the criminal proceedings in court when the point about the admissibility of the Royal Commission evidence was overlooked, or certainly not taken. ^[174]

[147] Giannarelli was also a case which turned, in part, on the construction of the Victorian Act referred to. It was upon that construction that this court divided. Four members of this court supported the majority view. ^[175] Three dissented. ^[176] In deriving the binding rule established by Giannarelli , it is necessary to disregard the opinions of the dissentients. However, it cannot escape attention that two of their Honours ^[177] rested their opinions not on any general rule as to a barristers' immunity but on the peculiar provisions of the Victorian Act. Giannarelli is thus a decision of a divided court. This affords yet another reason for confining the binding rule which the decision establishes to the circumstances with which the court was there necessarily dealing.

[148] Giannarelli concerned criminal proceedings. More stringent safeguards are adopted in criminal cases to prevent a miscarriage of justice. The highly developed rules and practices established to consider a suggestion of wrongful conviction may make it more appropriate to recognise further restrictions on the availability of proceedings against a practitioner in respect of the conduct of criminal rather than civil proceedings. ^[178] However that may be, the foregoing analysis makes plain that Giannarelli was concerned with the immunity of barristers, practising at a separate bar, in respect of their failure to take an objection in court based upon a statute which rendered particular evidence inadmissible in the proceedings before that court. In my view, the observations of the majority in Giannarelli concerning the scope of the immunity of legal practitioners in Australia are, as a matter of binding legal precedent, confined to such a case.

[149] I am strengthened in this conclusion by a reflection on the considerations mentioned in the dissenting opinion of Deane J in that matter. ^[179] His Honour was not convinced that a legal practitioner was immune in every case from liability even for in-court negligence "however gross and callous in its nature or devastating in its consequences". ^[180] My opinion is also reinforced by the expressed views controlling the growth of the ambit of the legal immunity stated by Lord Reid in Rondel v Worsley ^[181] and by Lord Diplock ^[182] and Lord Salmon ^[183] in Saif Ali v Sydney Mitchell & Co . Lord Diplock, noting the expansion of the law of negligence and its rigorous application to so many other professional persons, observed (in words which I would echo) that it is: ^[184]

hard to justify founding the decision of the instant appeal upon an uncritical acceptance of the highest common factor in the observations of the majority ... in Rondel v Worsley ^[185] as defining the work done by a barrister outside the courtroom door in respect of which he is immune from liability for negligence [emphasis added].

[150] Accordingly, both as a matter of the legal authority for which in this country Giannarelli stands, and as a matter of legal principle and policy, I would confine the scope of the legal immunity from suit to immunity for a legal practitioner advocate in respect of in-court conduct during proceedings before a court or like tribunal. The "intimate connection" test propounded by the advocates of an expansive immunity is impermissibly vague. As Keefe v Marks ^[186] shows, it extends immunity to situations where it is clearly as unjust as it is unjustifiable. ^[187]

[151] Upon that basis, the claim by the solicitors in their appeal to this court for the protection of that immunity wholly fails. Similarly, the negligence claim by Yates as eventually pressed against the barrister does not rest upon any decision which the barrister made in court during the actual conduct of the trial before Cripps J. Accordingly, the claim of all of the appellants to immunity from suit, simply because of their status as legal professionals answering a claim against them by a client, must be rejected. The suggestion that this might provide a ready answer, obviating the necessity of examining the many remaining issues in these appeals, is not borne out. I therefore turn to the remaining issues. However, I can deal with them quite briefly. Upon them, I am in substantial agreement with the reasons of Gleeson CJ.

The legal practitioners were not negligent

[152] It will be observed that I participated in the majority decision of the Court of Appeal of New South Wales in 1991 whereby it upheld the first appeal by Yates against the initial decision of Cripps J awarding compensation to Yates for "the value of the land" acquired by the Darling Harbour Authority. In those proceedings, Mr Simos QC (no longer a party to these proceedings) appeared successfully for Yates. The barrister was Yates' junior counsel. The solicitors then retained by Yates instructed those barristers. Notwithstanding my earlier involvement, no party to these appeals, when asked, raised any objection to my participation in these proceedings although issues 1 and 2 (above) necessarily overlap, to some extent, with the issues decided by the Court of Appeal.

[153] Judges who in later cases are asked to reconsider an opinion which they earlier expressed sometimes take the opportunity to clarify what they said or (in the case of an appellate court) what others have taken to be the implications of an opinion with which they are recorded as having agreed. ^[188] However, there are two complications which impose on me limitations in respect of any re-interpretation of what I said in the Court of Appeal. The first is that this is not a case where I am revisiting earlier remarks in circumstances completely divorced from those in which those remarks were offered. In such a case, a judge is free to revise an earlier opinion in the light of fresh persuasion, subsequent legal developments or a belated recognition of the error of earlier views. Here, the actual parties to the litigation may be different. But there is a coincidence in some of the dramatis personae. And to a degree, there is an overlap in some of the legal controversies.

[154] Moreover, I am now participating as a member of this court in an appeal from the Full Court of the Federal Court. Clearly, it would be undesirable in discharging my present functions that I should, in effect, review the correctness of an opinion earlier expressed by me in a different judicial capacity or re-express that opinion in a way inconsistent with the record of the earlier determination. There were times when judges and barristers of our legal tradition participated in reconsideration of their earlier opinions. ^[189] However, such times have passed. Consent by the parties could not now cure such an embarrassment.

[155] These considerations make it important, at least so far as I am concerned, that this court should deal, and deal only, with the issues necessary to its decision. This is not, and should not be permitted to become, an appeal de facto from the decision of the New South Wales Court of Appeal of 1991. There being no special statutory or other entitlement to bring a belated appeal against the 1991 orders of the Court of Appeal, we should not permit by a "side wind" ^[190] the appeal from the Full Federal Court to be turned into an effective revival of the earlier abandoned attempt to appeal from the Court of Appeal or, by-passing that court, an appeal from the second decision of Cripps J.

[156] The decision of the Court of Appeal in 1991 plays a part in the history of the proceedings which bring the present (different) parties to this court. For the reasons that I have stated earlier, this is not the occasion, nor are these the parties, to agitate the kind of review of the law on "special value" that might have been appropriate had this court heard an appeal from the 1991 decision or even from Cripps J's second ruling. Therefore, confining myself strictly to the reasons which were given by the Court of Appeal in its 1991 decision as part of the historical facts, it is sufficient to note a number of points.

[157] All members of the Court of Appeal addressed the issue of Yates' entitlement to compensation on the basis of the "special value" of the land, the subject of the compulsory acquisition. ^[191] None of the judges suggested that the Darling Harbour Authority should have succeeded on the basis that Cripps J's findings of fact "were not capable of sustaining a finding of special value". ^[192] No member of the court, except Handley JA, made reference to the concept of "head start", as a factor relevant to the calculation of "special value". ^[193] The essential complaint of Yates before the Court of Appeal was that "the trial judge having found that the land had special value to the appellant only awarded compensation for its market value ... [or] should have separately assessed compensation for loss of special value and had failed to give adequate reasons". ^[194]

[158] It was common ground for all of the judges in the Court of Appeal, that Cripps J had erred in stating that "[n]o claim is made by Yates for abortive expenditure". ^[195] All judges agreed that this slip required correction. However, the point of difference between the majority and the minority in the Court of Appeal turned on whether Cripps J had failed to give adequate reasons for his holding and whether this amounted to legal error authorising appellate intervention. This is certainly the way Mahoney JA understood the majority reasons. ^[196] It is consistent with the way those reasons are expressed by the majority. ^[197] This was what required the recalculation of the allowance for "special value" because of the doubts left by the reasons stated by Cripps J. It was the element of common ground in the opinions of the majority in the Court of Appeal. There was neither express nor implied concurrence in my reasons for the concept of "head start" appearing in Handley JA's reasons, assuming that concept to have been intended to be a new, different or specific component of "special value", something that I regard as far from obvious. It seems likely that Mahoney JA did not read it thus. Had his Honour done so, it might have been expected that he would have made explicit reference to the concept of "head start", which he did not. He confined his analysis, relevantly, to the concept of "special value", as did I.

[159] When the matter was returned to Cripps J, it is clear enough that his Honour understood the holding of the Court of Appeal as one that he had failed to give adequate reasons (and sufficient differentiation) for whatever allowance he had initially made for "special value" of the subject land to Yates. With proper candour, in his reasons of 1 April 1992, Cripps J accepted that he had erred in this regard. ^[198] Accordingly, in that decision, elaborating his reasons of 19 March 1992 cited by Callinan J, ^[199] he set out to express clearly the allowance which he made for "special value".

[160] Before Handley JA's reasons in the 1991 decision, the phrase "head start" had not appeared as such in this realm of discourse in any judicial decision, legal text or valuation handbook to which Yates could point. In so far as it amounted to nothing more than the type of consideration taken into account in earlier authorities on "special value" ^[200] both at the trial, in the reasons of Cripps J and in the decision of the Court of Appeal, these matters were fully ventilated. They were not overlooked. Clearly, they were included in the advice given to Yates by the solicitors and the barrister, in the evidence of the expert valuers retained for Yates and in the case presented and submissions advanced in the Land and Environment Court.

[161] In so far as Yates' claim was that the appellants had failed to call evidence and advance argument in support of the "head start" case, I agree with the reasons of Gleeson CJ for his conclusion that the primary judge was correct in rejecting the contention that the solicitors and the barrister were negligent in that regard. I also agree that a number of factual errors appear to have influenced the findings of the Full Federal Court. They misled that court into believing that it was authorised to reverse the conclusions of the primary judge.

[162] All argument and evidence reasonably necessary to decide the "special value" issue was properly and competently placed by the appellants before Cripps J. Far from being a glaringly obvious and separate head of "special value", the so-called "head start" which Yates claimed was fully encompassed within the claim for "special value" as proved. The negligence issue was therefore properly decided by the primary judge in favour of the appellants. There was no adequate basis to disturb her Honour's conclusions. It is unnecessary, therefore, to address separately either issue 4 or 5 (above). Nor is it necessary to consider issue 9 (statutory claims). Issue 10 reinforces the conclusion on issue 4 (negligence). It helps to explain how the Full Court reached its erroneous conclusion.

[163] The result of this analysis is that, while not entitled to succeed on the claims for immunity which they severally advanced, the appellants are entitled to succeed on their contentions that the Full Court erred in disturbing the conclusions of the primary judge that no negligence was established against them. On that footing, the judgments entered in their favour by the primary judge should be restored.

Orders

[164] I therefore agree in the orders proposed by Gleeson CJ.