District Court New South Wales Medium Neutral Citation: Jimenez v Watson [2020] NSWDC 419 Hearing dates: 20 and 21 February 2020 Date of orders: 28 July 2020 Decision date: 28 July 2020 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Defendant's notice of motion for summary dismissal is granted. (2) The proceedings are dismissed. (3) The plaintiff to pay the costs of the proceedings. Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings - No reasonable cause of action disclosed – Advocate's immunity Legislation Cited: Crimes Act 1900 (NSW), s 91FA, s 91H Crimes (Appeal and Review) Act 2001, s 78 Crimes (Sentencing Procedure) Act 1999, s 10 Criminal Code Act 1995 (Cth), s 473.1, s 474.19 Cases Cited: Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Giannarelli v Wraith (1988) 165 CLR 543 Jimenez v R [2017] NSWCCA 1 Kendirjian v Lepore (2017) 259 CLR 275 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Category: Procedural and other rulings Parties: Alexander Jimenez (plaintiff) Christopher Watson (defendant) Representation: Counsel: Mr S Robertson with Mr A Brown (plaintiff) Mr N O Owens SC with Mr A L Oakes (defendant) Solicitors: Summers Legal (plaintiff) YPOL Lawyers (defendant) File Number(s): 2019/152227 Publication restriction: None Judgment A. Introduction 1. Christopher Watson, a solicitor, seeks summary dismissal of negligence proceedings commenced against him by his former client, Alexander Jimenez. Mr Watson relies on the principle of advocate's immunity. B. Issues 1. The issue to be determined is whether the law of advocate's immunity applies with sufficient clarity to warrant summary dismissal of Mr Jimenez's claim. C. Background 1. On 2 June 2010 Mr Jimenez was arrested and subsequently charged with an offence of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). 2. Mr Watson, as Mr Jimenez's solicitor, successfully made representations to the Commonwealth Director of Public Prosecutions that the Commonwealth offence be withdrawn and the State offence be dealt with summarily. 3. Among the differences between the State and Commonwealth offences was that under the Commonwealth offence "child abuse material" was defined, [1] in part, as "material that depicts a person…who…is, or appears to be, under 18 years of age" whereas for the State offence a "child" was defined to be "a person who is under the age of 16 years". [2] Mr Watson was apparently unaware of this lower age applicable to the State offence, and Mr Jimenez was not advised of the different age defining a child. Mr Jimenez pleaded guilty to the State offence. 4. At the sentencing hearing on 10 January 2011, the prosecution, the magistrate, and Mr Watson all acted upon a belief that the relevant age was "under 18 years". [3] Mr Watson sought an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 that there be no conviction recorded, [4] but the magistrate convicted Mr Jimenez and imposed a fine of $6,600. [5] 5. On appeal to this Court, Mr Jimenez sought leave to change his plea. On 5 September 2011 the trial judge refused that application on the basis that he was "satisfied beyond reasonable doubt that the images were clearly of a girl well below the age of 18". [6] Thus, the mistake concerning the relevant age of a child persisted. 6. In about 2016, Mr Jimenez made an application under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his offence. The Attorney-General accepted on that hearing that the "erroneous approach may itself be sufficient to give rise to a question or doubt" as to Mr Jimenez's guilt, [7] and although that matter could have been resolved by the judge looking at the images, they were no longer available. 7. The matter was referred to the Court of Criminal Appeal, which in 2017 quashed the conviction stating: "It seems certain that the appellant was advised, for the purposes of the proceedings and, in particular, the plea, that the offence was committed if the images were of a child aged less than 18 years. The admission of fact, therefore, actually implicit in his plea was that the child was under the age of 18 years. In my view, the plea could not be regarded as an admission that the child was under the age of 16 years. It must follow 'that the plea of guilty was not really attributable to a genuine consciousness of guilt': R v Boag (1994) 73 A Crim R 35 at [2]; R v Thalari [2009] NSWCCA 170. The submissions of the Crown, therefore, to the effect that the appellant had in substance otherwise admitted that the images were those of a girl under the age of 16 years, is not to the point." [8] D. The application of the law of advocate's immunity 1. The foundation of Mr Jimenez's claim is that, relevantly, Mr Watson negligently advised Mr Jimenez that the State offence was committed if the images were of a person under 18 years of age rather than under 16 years of age. Mr Jimenez submitted that this: 1. cost him the opportunity to make submissions to the prosecuting authority to discontinue the proceedings in the light of the requirement that the images be of a child under 16 years of age; and 2. led to Mr Jimenez making the plea of guilty, and he suffered the psychological consequence of a plea of guilty having been made and accepted. 1. Advice by a lawyer which leads to a decision by a client is within the scope of the immunity if the advice affects the judicial determination of the proceedings. [9] If applicable, the law of advocate's immunity protects the advocate and prevents, subject to limited exceptions not relevant here, the maintenance of collateral proceedings against the advocate, even though the purpose and foundation of the immunity is "the protection of the finality and certainty of judicial determinations". [10] Negligent advice to plead guilty affects the determination of the case by a court because "[t]he court cannot proceed to conclude its function until a conviction is recorded". [11] 2. A "decision about a plea of guilty cannot be described other than as intimately connected with the conduct of a criminal cause", and "affects the conduct of the accused's matter before the court" because "the timing of the plea affects the sentence imposed" [12] and "the judicial function is squarely engaged in determining whether to accept a plea of guilty. A court may not accept the plea of guilty unless it is satisfied that it is freely made by the accused". [13] 3. In Attwells' case, [14] the High Court determined that "the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings", [15] whether or not it attaches only to "the kinds of decision" which the litigation lawyer "may make without instructions from the client". [16] 4. As this case does not involve the settlement of civil proceedings, that determination of the High Court does not preclude the application of the immunity. But the decision to plead guilty is not one that can be made without the client's instructions. So the reservation by the High Court about whether the immunity is so limited might of itself leave open the question of whether it can attach to a plea of guilty, although the expressed statements in the earlier paragraphs deny this uncertainty. And plainly, the advice may be given by a lawyer about a plea without instructions from the client. 5. Accordingly, the decision in Attwells determines that a decision about a guilty plea affects "the determination of the case by the court", and is "intimately connected with the conduct of a criminal cause" and "affects the judicial determination of the proceedings" [17] and "the practitioner cannot be sued for negligence" on account of "advice which leads to a decision … to enter a guilty plea" [18] and must thus be within the immunity. The reservation by the Court of the question: "whether the immunity attaches only to the kinds of decision which a lawyer charged with the conduct of a case in court may make without instructions from the client", [19] even though a decision to plead guilty necessarily involves a client's instructions, cannot be construed to reverse the express findings that the immunity attached to a guilty plea. Perhaps the reservation was implicitly confined to civil cases like Attwells, or was confined to a decision of the lawyers, not to advice given by a lawyer (about a guilty plea), as here, or for some other reason not altogether clear. But the authority of Giannarelli v Wraith [20] and D'Orta-Ekenaike, [21] the latter of which involved a claim of negligence resulting from a guilty plea, and both of which involved a finding of guilt, together with the reasoning quoted in Attwells at [42]-[43], which also specifically concerns a guilty plea, compel the conclusion that advice in respect of a guilty plea is within the immunity. Mr Jimenez does not assert that Giannarelli and D'Orta-Ekenaike are distinguishable, but rather that the immunity has been narrowed by Attwells to allow the present claim. Where neither decision has been overturned, it is not open for this Court not to follow them. 1. Mr Jimenez variously submitted that the acceptance of the guilty plea, although a judicial determination, was not a judicial determination of guilt; that the wrong occurred "before there was any judicial determination" [22] and so was not intimately connected with the conduct of the case in court; and that the Court was "obliged to accept Mr Jimenez's (improvidently entered) plea even if [it] considered the charge against Mr Jimenez was not supportable". [23] 2. None of these submissions have force. The passage in Maxwell v The Queen [24] relied on by Mr Jimenez does not support the obligation asserted. The erroneous advice as to the elements of the offence could only be intimately connected with the judicial determination by happening before the determination, and the judicial determination to accept a plea of guilty cannot usefully be distinguished from a judicial determination of guilt. [25] 3. That a judicial determination to accept a plea of guilty is liable to be set aside in circumstances including for mistake, [26] as occurred with Mr Jimenez, does not cause the circumstances of the mistake to fall outside the immunity, but rather brings them within its central operation and purpose. Mr Jimenez submitted that no challenge to the correctness of the Local Court determination is involved in the proceedings because that mistake has already been found by the Court of Criminal Appeal. Yet the Local Court decision was lawful, even if mistaken, and D'Orta-Ekenaike [27] determined that the consequences of a lawful decision are not amenable to a collateral action. The circumstance that an erroneous decision of an intermediate court has been corrected on appeal does not assist Mr Jimenez, for as "final results cannot be challenged, intermediate results should not be treated differently". [28] That Mr Jimenez pleaded guilty on a false basis [29] does not distinguish his situation from the decision in D'Orta-Ekenaike, which was confirmed by Attwells and remains determinative that the immunity applies in proceedings collateral to judicial determinations in criminal cases. 4. Ultimately, Mr Jimenez submitted that his proceedings did not challenge the judicial determination, but rather challenged the failure of Mr Watson to make effective submissions to the prosecuting authority that the State offence could not be maintained. [30] Yet the damage claimed is that consequent upon the guilty plea, and only if the guilty plea was set aside could Mr Jimenez maintain the claim. It is sufficient to enliven the immunity that the conduct or advice of Mr Watson was intimately connected with the plea, even if it was also connected with the exercise of prosecutorial discretion. 5. Arguments may exist that the negligent avoidance of a criminal trial by a plea is in some relevant way analogous to the negligent avoidance of a civil trial by an unfavourable settlement, the latter being found in Attwells to fall outside the immunity. But the analogy has not found favour with the High Court. The Court has drawn a bright line distinction between faulty advice leading to a guilty plea and faulty advice leading to a settlement of civil proceedings. Only the first is within the immunity. If that immunity is to be narrowed, it is not open to this Court to do it, in the face of the repeated endorsement in Attwells and Kendirjian v Lepore [31] of the decisions in Giannarelli and D'Orta-Ekenaike. E. Conclusion 1. As there is no factual dispute that could impact on the application of the immunity, there is no reason to allow the proceedings to go forward to trial. The claim remains manifestly unarguable in accordance with the principles in General Steel. [32] 2. The application is granted. F. Orders 1. The orders of the Court are: 1. Defendant's notice of motion for summary dismissal is granted. 2. The proceedings are dismissed. 3. The plaintiff to pay the costs of the proceedings. ********** Endnotes 1. S 473.1, Criminal Code Act 1995 (Cth). 2. S 91FA, Crimes Act 1900 (NSW). 3. Exhibit EP1 to affidavit of Edward Parra, 14/11/19, p 9 at [30]. 4. Ibid, pp 6-7 at [16]. 5. Ibid, p 7 at [17]. 6. Ibid, p 7 at [22]. 7. Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635 at [40]. 8. Jimenez v R [2017] NSWCCA 1 at [14]. 9. Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [43]; [2016] HCA 16. 10. Attwells at [46]. 11. Attwells at [43]. 12. Attwells at [43]. 13. Attwells at [44]. 14. Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16. 15. At [45]. 16. Attwells at [45]. 17. Attwells at [43]. 18. Attwells at [42]. 19. Attwells at [45]. 20. (1988) 165 CLR 543. 21. D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. 22. Plaintiff's Written Submissions ("PWS"), 13/2/20 at [4]. Emphasis in original. 23. PWS, 13/3/20 at [7]. Emphasis in original. 24. (1996) 184 CLR 501, at pp 510-511 per Dawson and McHugh JJ; [1996] HCA 46. 25. D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at p 52 at [152] per McHugh J. 26. See Maxwell at p 511. 27. At 70. 28. D'Orta-Ekenaike at [82]. 29. PWS, 13/12/20 at [52]. 30. PWS, 13/12/20 at [51]. 31. (2017) 259 CLR 275. 32. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 128-129. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020