New South Wales Supreme Court CITATION : Wilson v Carter & 5 Ors; Wilson v Rigg [2005] NSWSC 1351 HEARING DATE(S) : 13 May 2005 JUDGMENT DATE : 22 December 2005 JURISDICTION : Common Law Division JUDGMENT OF : Rothman J at 1 DECISION : a The Second Cross Claim in proceedings 20364 of 1998 in this Court be struck out;; b As a consequence of Order (a) above, the Third Cross Claim in proceedings 20364 of 1998 in this Court be struck out;; c In proceedings in this Court, being 20447 of 2001, the entirety of paragraphs 27(a), 27(b) and 33(a), of the Further Amended Statement of Claim be struck out; d In proceedings in this Court, being 20447 of 2001, in the Second Cross Claim the following paragraphs are struck out:; i. Paragraph 11 insofar as it repeats paragraphs 16, 17, 20, 21, 22, 23, 24, 25 and 26 of the Further Amended Statement of Claim;; ii. Paragraphs 12, 13, 14 and 15 in their entirety.; e The defendant in 20364 of 1998, Jack Rigg, pay one third of the Second Cross Defendant's costs of the motion as taxed or agreed, to be payable forthwith;; f The plaintiff and fifth defendant in proceedings 20447 of 2001 pay a further one third of the Second Cross Defendant's costs of the motion as taxed or agreed;; g Two thirds of the Plaintiff's costs of the motion will be the Plaintiff's costs in the cause. CATCHWORDS : Motion to strike out - Negligence - Immunity of Counsel for out-of-court work - Deliberate and inadvertent conduct - Principles for summary disposal - Arguability of duty on Barrister to advise client of negligence of solicitor Motor Accidents Act LEGISLATION CITED : Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Wilson v Rigg [2000] NSWSC 16 Wilson v Rigg [2002] NSWCA 246 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 Agar v Hyde (2000) 201 CLR 552 D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755, 214 ALR 92, [2005] HCA 12 Giannarelli v Wraith (1988) 165 CLR 543 Boland v Yates (1999) 74 ALJR 209 CASES CITED : Saif Ali v Sydney Mitchell [1980] AC 198 Rees v Sinclair [1974] 1 NZLR 180 McRae v Stevens (1996) Australia Torts Report 81-045, 18.10.96, (BC9604869) Keefe v Marks (1989) 16 NSWLR 713 Hawkins v Clayton (1998) 164 CLR 539 Malik and Mahmud v BCCI [1998] AC 20 Walmsley v Cosentino [2001] NSWCA 403 Plaintiff - Mark Wilson 1st Defendant - Trevor Carter 2nd Defendant - Clive Evatt PARTIES : 3rd Defendant - Stephen Stanton 4th Defendant - Gregory Stanton 5th Defendant - Jack Rigg 6th Defendant - Michael Rollinson FILE NUMBER(S) : SC 20447/2001; 20364/1998 Plaintiff - H Stowe COUNSEL : 3rd Defendant - Mr M Williams SC 5th Defendant - Ms Reese Plaintiff - Sweeney Tiggermann Lawyers 1st Defendant - Yeldham & Associates 2nd Defendant - Minter Ellison Solicitors SOLICITORS : 3rd Defendant - McCabe Terrill Lawyers 4th Defendant - self represented 5th Defendant - Mallesons Lawyers 6th Defendant - Colin Biggers & Paisley LOWER COURT JURISDICTION : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Rothman J 22 December 2005 WILSON v CARTER & 5 ORS 20447/2001 WILSON v RIGG 20364/1998 JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff, Mark Wilson, seeks damages against solicitors and barristers relating to allegations of negligence by them. In turn, in the Second Cross-Claim, one of the solicitors seeks indemnity or contribution from two of the barristers. 2 By notice of motion dated 30 March 2005 one of those barristers, Stephen Stanton, who is both a defendant and cross-defendant, seeks to strike out the proceedings as against him, both the proceedings commenced by Statement of Claim and the Second Cross-Claim. 3 The basis for the strike out motion involves, amongst other issues, the immunity of counsel from suit and this judgment turns, in that respect, on the extent of that immunity and the appropriateness of dealing with the immunity as a preliminary question when, it is said, there are real issues between the parties as to its applicability. The other bases for the motion are: the inapplicability of the rule in Walmsley v Cosentino to barristers; and, the absence of the cause of action relating to the failure to file proceedings against the State Rail Authority (SRA) in time. I shall deal, after setting out the facts, with this last matter then with the other two issues. 4 Senior Counsel who appeared for Stephen Stanton accepted, for the purpose of this notice of motion only, as one must, the allegations of fact in both the Statement of Claim and Second Cross-Claim, at least insofar as the allegations are relevant to the claims of negligence. 5 It is necessary to set out the claims against Mr Stanton. There are two sets of proceedings and relevantly, cross-claims in each. It is unfortunate that the pleadings are not each self-contained. For one to understand the allegations requires cross-referencing between documents and the importing of claims from one document to another and from one proceeding to another. 6 Counsel for Mr Wilson relied not only on the pleadings filed, but also on two volumes of an affidavit of Mr Jack Rigg filed in the proceedings. Given that the facts pleaded must be accepted (except to the extent otherwise agreed) I had grave doubts concerning the utility of such a course. I admitted the material on the basis that its use was, to the extent necessary, in substitution for particulars. If the pleadings were in better form, these matters might have been pleaded and the affidavits are now being used to provide a better understanding of the case pleaded. 7 The particular facts of this case are tragic and show the injustice occasioned to plaintiffs if legal practitioners were wholly immune from suit. FACTS 8 On 30 May 1989 the plaintiff was injured in an accident involving the car he was driving and a freight train at a level crossing in Narrabri. The totality of damages said to arise from that injury is $9.8 million, plus interest of a further $6.2 million. 9 On 30 July 1990 the plaintiff instructed a solicitor, the fifth defendant and cross-claimant in the Second Cross-Claim, Jack Rigg, in relation to any claim he may have had against the State Rail Authority (SRA). I should, as a matter of completeness, make clear that Mr Rigg contends such instructions occurred in January 1992. 10 On 2 July 1992 the plaintiff became statute barred, in his suit against the SRA, due to the effluxion of time. 11 On 13 September 1994 Mr Rigg filed proceedings, on behalf of the plaintiff, against the SRA. 12 On 6 March 1996, almost four years after the time limit had expired for commencing proceedings, Mr Rigg sent a Brief to Appear to Mr G Stanton, barrister, not to be confused with Mr S Stanton, the applicant on this motion. It may be, but is irrelevant for present purposes, that there were other prior dealings with G Stanton. 13 Between 6 March 1996 and 31 May 1996 G Stanton transfers the brief, presumably on instructions or with the approval of the solicitors and/or client, to S Stanton. The brief to S Stanton from Mr Rigg was a brief to appear and advise generally and in relation to the bringing of an application for extension of time under s.52(4) of the Motor Accidents Act in relation to the proceedings commenced (or purportedly commenced). The Further Amended Statement of Claim in 20447 of 2001, filed 3 February 2005, also alleges in paragraph 27(c) that S Stanton was "to advise the plaintiff in relation to the options of the plaintiff, following the dismissal of the plaintiff's application for an extension of time in relation to the commencement of the proceedings". I will return to this last matter later in the judgment. 14 On 1 November 1996 the application for extension of time was filed and on 3 June 1997 the application was dismissed by Associate Justice Malpass under s.52(4) of the Motor Accidents Act and the Associate Justice also dismissed the plaintiff's claim. It is at this point that Mr Rigg sought further advice from S Stanton described in paragraph 27(c) of the Further Amended Statement of Claim in 20447 of 2001. That advice was sought on 6 June 1997 in the following terms: "Would you kindly advise as to whether a Notice of Appeal should be filed, or alternatively whether we should proceed by way of fresh application, as alluded to in page 3 of the judgment. (sic)" (Tab 167 of the Affidavit of Jack Rigg) There is little more in the letter of 6 June 1997 and certainly nothing that is in terms or to the effect that S Stanton was asked "to advise the plaintiff in relation to the options of the plaintiff …" as described in paragraph 27(c) of the Further Amended Statement of Claim and as set out in paragraph 13 infra. 15 On 2 July 1997, after communication between Mr Rigg and S Stanton, there was a conference between S Stanton, Mr Rigg and the plaintiff's parents during which S Stanton was asked to advise and during which S Stanton repeated the advice given on 13 June 1997 that there should be a fresh application under s.52(4) and not an appeal (Particulars 3(b)(ii) to paragraph 27 of the Further Amended Statement of Claim in 20447 of 2001). 16 After further communication received from Mr Rigg, relating to the delay between the receipt of instructions and/or opening of file and the commencement of proceedings against the SRA, S Stanton advised the plaintiff's mother in June 1997 that the case had "nowhere to go". On 18 March 1998 Mr Rigg requested S Stanton to furnish formal advice to that effect and/or that the case should be closed. 17 Between 28 May 1998 and 2 July 1998 Mrs Wilson, the plaintiff's mother, telephoned S Stanton 11 times to inquire as to the options available following the dismissal of the s.52(4) application. 18 On 2 July 1998 the limitation period, for Mark Wilson, the plaintiff, to sue Mr Rigg for failure to institute proceedings against the SRA within time, expired, subject to any appropriate or allowable extension of time. 19 On 4 August 1998 S Stanton advised Mrs Wilson, for the first time, to obtain independent advice about a possible cause of action against Mr Rigg. (Particulars 3(b)(x) to paragraph 27 of the Further Amended Statement of Claim in 20447 of 2001). 20 It should be understood that, for the purposes only of the Second Cross-Claim, the above facts are repeated and relied upon by Mr Rigg in that claim against S Stanton. CLAIMS FOR NEGLIGENCE 21 As previously stated there are two sets of proceedings. The first set, 20364 of 1998 (the "1998 Proceedings"), involves a claim by the plaintiff against only Jack Rigg alleging negligence in the preparation and conduct of the extension of time application and the failure to prosecute same with due diligence. As to that claim Jack Rigg cross claims against S Stanton, repeating the allegations made by the plaintiff against Jack Rigg against S Stanton in the 1998 Proceedings. 22 The Cross Claim, being the Amended Second Cross Claim in the 1998 Proceedings, also repeats the allegations made by the Plaintiff against Jack Rigg in 20447 of 2001 (the "2001 Proceedings") against S Stanton for the purpose of the 1998 Proceedings. This somewhat unusual course, raises real issues about abuse of process, but, given that the Second Cross Claim in the 1998 Proceedings seeks only indemnity, I construe that repetition to be a repetition only in relation to the allegations of negligence in the 2001 Proceedings that coincide with the allegations of negligence in the 1998 Proceedings. 23 In the 2001 Proceedings, the plaintiff sued Mr Rigg for negligence. The plaintiff also sued S Stanton. Mr Rigg, in turn, sued S Stanton alleging that S Stanton "was under a duty to Jack Rigg and Mark Wilson to use reasonable care, skill and diligence commensurate with the practise (sic) as an admitted barrister." (paragraph 11 of the Amended Second Cross-Claim in the 1998 Proceedings imported by paragraph 13 in the Amended Second Cross Claim of the 2001 Proceedings). 24 Mr Rigg repeats against S Stanton (paragraphs 11, 12, 13 and 14 of the 2001 Amended Second Cross-Claim) all allegations of negligence made by the plaintiff , Mark Wilson or Jack Rigg in either or both the 1998 and 2001 Proceedings. 25 Further (although it is unclear from the pleading whether this is simply repetitive) Mr Rigg particularises the breach of duty by S Stanton (in Amended Second Cross Claim in the 1998 Proceedings) in the following terms: "(i) Failing to plead the Statement of Claim in such a way to avoid Mark Wilson's claim against the State Rail Authority of New South Wales being time barred; (ii) Failing to advise of the appropriate limitation period in which to commence proceedings on behalf of Mark Wilson against the State Rail Authority of New South Wales; (iii) Failing to alert Jack Rigg and Mark Wilson to the existence of relevant statute and case law; (iv) Failing to advise Jack Rigg and Mark Wilson to promptly file a notice of motion seeking an extension of time under section 52(4) of the Motor Accidents Act 1988 (NSW) , in relation to the commencement of the SRA Proceedings; (v) Failing to advise Jack Rigg and Mark Wilson in relation to the preparation and conduct of the application for an extension of time which was filed in the SRA Proceedings on or about 1 November 1996." 26 The plaintiff alleges negligence against Mr Rigg in the 2001 Proceedings in the following terms: "16. In carrying out the duties of his retainer, Jack Rigg was under a duty to the plaintiff to use reasonable care, skill, and diligence. 17. In breach of his duty of care, Jack Rigg negligently failed to institute proceedings against the State Rail Authority of New South Wales on or before 2 July 1992; 18. Jack Rigg further breached his duty of care, by reasons of the matters pleaded in paragraphs (a) to (b) below. (a) Jack Rigg failed to advise that the plaintiff had a cause of action against Jack Rigg in respect of the negligence pleaded in paragraph 17 above, prior to 2 July 1998 or at all. (b) Jack Rigg failed to advise that the plaintiff obtain independent legal advice in respect of the possible claim against Jack Rigg, prior to 2 July 1998 or at all. Particulars 1 JackRigg's(sic) failure to advise that the plaintiff had a cause of action against Jack Rigg in respect of the negligent failure to commence the SRA claim within time, constituted a breach of his duty of care to the plaintiff because: (a) Jack Rigg should reasonably have been aware of the existence of the plaintiff's cause of action against him, for failing to commence the SRA claim within time; (b) Jack Rigg had a duty of care to advise the plaintiff as to the existence of that cause of action. 2 In light of his training and experience as a solicitor, Jack Rigg should reasonably have been aware that the plaintiff had a cause of action against him for failing to commence the SRA claim within time, by reason of the following matters: (a) Jack Rigg was aware that the accident occurred on 30 May 1989; (b) Jack Rigg was aware that he was instructed by the Plaintiff in around July 1990, or (alternatively) in any event by January 1992; (c) Jack Rigg did not cause proceedings to be commenced on behalf of the plaintiff until 13 September 1994; (d) By no later than 31 May 1996, Jack Rigg was aware that the limitation period in relation to the plaintiff's claim against the SRA was three years rather than 6 years, and therefore had expired prior to time(sic) that Jack Rigg caused proceedings to be commenced. In his affidavit dated 15.10.1996 filed in support of the extension of time application, Jack Rigg states that he at first assumed that the limitation period for the claim against the SRA was 6 years, but that 'upon obtaining instructions and more particularly upon further advice given by counsel, it was ascertained that in fact the action came within the statutory jurisdiction of the Motor Accidents Act and in the circumstances the procedures for making a claim under the Motor Accidents Act should have been complied with. To that end, a claim form was immediately complied with(sic) and lodged …" (para 9). The Notice of Claim was served on the GIO pursuant to the Motor Accidents Act on 31 May 1996; (e) By reason of his awareness by at least 31 May 1996 that the Plaintiff's claim against the SRA was subject to the Motor Accidents Act, Jack Rigg should have been aware by that date that the limitation period of the Plaintiff's claim against the SRA expired on 1 July 1992 (or at least approximately 3 years after the date of the accident on 30 May 1989); (f) Jack Rigg failed to seek counsel's advice (or otherwise undertake reasonable investigations) in relation to the limitation period of the Plaintiff's claim against the SRA, prior to the expiry of that claim on 1 July 1992 (g) Whether Jack Rigg was instructed in July 1990 or January 1992, Jack Rigg had a reasonable opportunity to commence proceedings on behalf of the plaintiff against the SRA, prior to the expiry of the limitation period of that claim on 1 July 1992 (h) Jack Rigg should have been aware that he was under a duty of care to commence proceedings against the SRA on behalf of the Plaintiff, prior to the expiry of the limitation period of that claim; 3 In light of his training and experience as a solicitor, Jack Rigg should reasonably have been aware that he had a duty to advise the plaintiff as to the existence of the plaintiff's cause of action against him, by reason of the following matters: (a) By reason of the matters pleaded in paragraph 2 above, Jack Rigg should reasonably have been aware that the plaintiff had a cause of action against him, in relation to the failure to commence against the SRA within time; (b) By no later then 3 June 1997 (when Master Malpass refused leave for an extension of time of the Plaintiff's claim against the SRA and dismissed the Plaintiff's claim against the SRA), Jack Rigg should have been aware that the Plaintiff had suffered serious damage, by reason of Jack Rigg's negligent failure to commence the SRA claim within time; (c) Jack Rigg should reasonably have been aware that the plaintiff's cause of action against him accrued on the expiry of the limitation period of the plaintiff's claim against the SRA (namely, 1 July 1992); had a limitation period of 6 years, pursuant to section 14(1) of the Limitation Act 1969, and would therefore become statute barred on 1 July 1998; (d) Jack Rigg should reasonably have been aware of the drastic consequences to the Plaintiff, of the expiration of the limitation period of the Plaintiff's claim against Jack Rigg; (e) Jack Rigg continued to accept instructions from the plaintiff after 3 June 1997, and did not (prior to 1 July 1998) either advise the Plaintiff to seek independent legal advice as to the plaintiff's claim against Jack Rigg, or advise the plaintiff that Jack Rigg had a conflict of interest in relation to the continued acceptance of instructions from the plaintiff; (f) Jack Rigg had no basis for believing that (prior to 1 July 1998), the Plaintiff had obtained independent legal advice as to what claims the Plaintiff might bring against Jack Rigg, arising from Jack Rigg's failure to commence the SRA proceedings in time; (g) Jack Rigg should reasonably have been aware that the plaintiff did not have a sophisticated understanding of his legal rights; (h) By reason of the matters in paragraphs (d) and (g) above, Jack Rigg should have been aware that it was extremely likely that the Plaintiff would not become aware of his rights to sue Jack Rigg before the expiration of the limitation period, unless Jack Rigg or Steve Stanton advised the Plaintiff as to the existence such rights; (i) Between May and July 1998, the plaintiff's mother made 10 calls to Mr Rigg, to inquire as to the legal options open to the plaintiff, following the decision of Master Malpass on 3 June 1997, dismissing the plaintiff's claim against the SRA. By reason of those phone calls, Jack Rigg should reasonably have been aware that the plaintiff was relying on Jack Rigg for advice in relation to the plaintiff's legal options. 18A. By reason of the matters pleaded in paragraph 18 above, the plaintiff failed to commence Supreme Court commence proceedings (sic) 20364/98 prior to 2 July 1998. 18B. By reason of the matters pleaded in paragraph 18A above, the claim pleaded against Jack Rigg in Supreme Court proceedings 20364/98, in relation to the negligent failure to commence Supreme Court proceedings 80644/94 within time, is statute barred by operation of section 14(1) of the Limitation Act 1969 (NSW). 19. By reason of the matters referred to in paragraphs 18-18B above, the plaintiff has suffered damage. Particulars The damages comprise the quantum of damages that the Plaintiff would likely have recovered against Jack Rigg, had the plaintiff commenced and prosecuted proceedings in negligence against Jack Rigg, in relation to Jack Rigg's negligent failure to commence proceedings against the SRA within time. " 27 Further the plaintiff particularises, against S Stanton, the breaches of the duty of care (in the 2001 proceedings) in the following terms: "33. SJ Stanton breached the duty of care, by reason of the matters pleaded in paragraphs (a) to (b) below. (a) SJ Stanton failed properly to advise in relation to the preparation of the application for an extension of time under section 52(4) of the Motor Accidents Act, by reason of which the application failed. In particular, SJ Stanton: (i) failed to advise that the plaintiff should lead evidence which provided a full explanation for the delay in the making of an application under section 52(4), particularly in respect of the delay following the filing by the SRA of a defence pleading the expiry of the limitation period; or alternatively, failed to seek an adjournment of the Application to allow that evidence to be prepared; (ii) failed to advise that the plaintiff should lead further evidence in relation to the plaintiff's prospects of success in his claim against the SRA; or alternatively, failed to seek an adjournment of the Application to allow that evidence to be prepared; (iii) ; (iv) failed adequately to advise in relation to the evidence that should have been prepared and led in reply to the matters raised in the affidavit of Robert Walters sworn 31 January 1997 concerning the alleged prejudice arising from the grant of an extension of time; or alternatively, failed to seek an adjournment of the Application to allow that evidence to be prepared; Particulars of (iv) S J Stanton failed to advise that: the SRA witnesses of the Accident (i.e., Robert Binion, Stephen Howard, and Darren Ford who were respectively the train driver observer, the train shunter, and the train driver on the night of the Accident) be contacted and asked whether the review by them of their police statements revives any independent recollection of the accident; police witnesses of the Accident be contacted and asked whether the review of their respective police statements revives any independent recollection of relevant matters; an investigation be undertaken in relation to the whereabouts of Andrew Gordon, in respect of whom Robert Walters led evidence to the effect that he was "unable to locate him"; evidence be led as to recollection of Monica Fletcher, who was the passenger of the vehicle at the time of the Accident. (v) failed to advise that the plaintiff should lead evidence of the plaintiff's mental disabilities, to prevent any unwarranted adverse inference being drawn against the plaintiff on the application, which might be drawn from inconsistency or incoherence of the plaintiff's evidence (which were unforeseeable consequences of the plaintiff's disabilities). (b) SJ Stanton failed to advise the plaintiff that the plaintiff had a cause of action against Jack Rigg in respect of the matters pleaded in paragraph 17 above, by a time which provided the plaintiff with a reasonable opportunity to engage alternative solicitors and commence proceedings against Jack Rigg prior to 2 July 1998 (being the date on which it was reasonably foreseeable that the limitation period in relation to that cause of action might be held to expire). Particulars The failure to so advise constituted a breach of Steve Stanton's duty of care, by reason of the following matters: (a) Steve Stanton was aware that the Plaintiff had instructed Jack Rigg prior to the expiry of the limitation period of the claim against SRA. This was clear from the affidavits filed in support of the 52(4) application; (b) Steve Stanton was aware (or should have been aware) that the Plaintiff had a cause of action in negligence against Jack Rigg in relation to the failure to commence proceedings against the SRA within time; (c) A duty of care to advise the Plaintiff in relation to causes of action against Jack Rigg in negligence arose, by reason of the following matters: (i) In light of the fact that the limitation defence had been pleaded by the SRA, Steve Stanton was aware (or should have been aware) that the limitation period of the claim against the SRA expired on 2 July 1992, and that the 6 year limitation period of the claim against Jack Rigg would commence from that time and expire on 2 July 1998; (ii) Steve Stanton was aware (or should have been aware) of the drastic consequences to the Plaintiff of the expiration of the limitation period of the claim against Jack Rigg; (iii) Steve Stanton had no reason to believe that the plaintiff was receiving independent legal advice, as to the prosecution of the plaintiff's claim against Jack Rigg; (iv) As set out in paragraph 3(b) of the particulars to paragraph 27 above, SJ Stanton was requested to (and did in fact) advise in relation to options available to the plaintiff, following the dismissal of the plaintiff's application for an extension of time in the SRA proceedings; (v) Steve Stanton was explicitly briefed to furnish advice as to whether the "case was closed"; (vi) Steve Stanton was aware (or should have been aware) that the Plaintiff was relying upon Steve Stanton to advise as to remedies open to the Plaintiff following the dismissal of the claim against the SRA. By way of demonstration of this fact, on 15 May 1998, Mr Rigg wrote to Steve Stanton, stating that he had received "numerous calls" from the Wilsons, and stating that "I believe the matter is finalised and there is no more we can do, however, they feel that they would like something in writing or confirmation in writing from yourself in whom they have great trust"; (vii) Steve Stanton did not refuse to take the calls of Mrs Wilson; (viii) Steve Stanton did not advise that the plaintiff obtain independent legal advice; (ix) Steve Stanton did not return his brief prior to 1 July 1998; (x) Steve Stanton purported to advise the plaintiff as to his options following the dismissal of the application for an extension of time, stating in conference to Mrs Wilson in or about June 1997 that: "I am very sorry about everything that has happened. You can't take it any further."; (xi) The Plaintiff and his mother were not sophisticated clients; (xii) Steve Stanton had ample opportunity to advise the Plaintiff as to his rights to sue Jack Rigg, prior to the expiration of the limitation period of that claim. " 28 As a matter of completeness, it should be pointed out that the 1998 Proceedings originally claimed against Jack Rigg, the failure to file proceedings against the SRA before the expiry of the limitation period. This claim was, itself, struck out as time barred. The six years' time period for such a claim commencing on 2 July 1992 and expiring on 2 July 1998. (See Wilson v Rigg [2000] NSWSC 16, per Sperling J; and Wilson v Rigg [2002] NSWCA 246 per Giles JA, with whom Santow JA and Foster AJA agreed). 29 The claims against S Stanton can, as previously stated, be conveniently grouped in the following ways: a Failure to advise in a manner that was sufficiently timely so as to avoid the limitation expiry against the SRA (pressed by Rigg by repeating the claims made against him); b Failure to advise properly on the preparation of the application for extension of time under s.52(4) of the Motor Accident Act, including not adducing evidence to explain fully the delay and on the prospects of success, either in chief or in reply; c Failure to advise in a timely manner as to the existence of a cause of action against the solicitor, Mr Rigg. THE PRINCIPLES RELATING TO SUMMARY DISMISSAL 30 The applicant on the notice of motion bears the onus of establishing that, as against him, there is no issue that warrants the plaintiff, on that aspect, being denied the ordinary right to have his claim tried. The test is stringent and demanding and requires a high degree of certainty about the ultimate outcome of the proceedings if it were to be tried in the ordinary course. (See General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; Agar v Hyde (2000) 201 CLR 552). However, where the case of the plaintiff is clearly untenable and cannot, on that aspect, succeed, the defendant is entitled to summary dismissal. This is so, even if the matter requires substantial argument to expose the factual allegations and the applicable legal principles to be applied. It is also necessary to ensure that issues that depend upon contested facts are not resolved summarily and, save in the most exceptional of cases, plaintiffs are not denied the opportunity to argue their real case because of some technical omission or a novel proposition of law that may be open. 31 It is the above principles that I apply to the matters now before the Court. FAILURE TO AVOID TIME LIMIT 32 As earlier stated one of the pleaded claims against S Stanton is that he failed to act in a timely manner in advising Mr Rigg and/or the plaintiff so that they would avoid the statutory limitation period. As made clear above, S Stanton was first briefed some time between 6 March 1996 and 31 May 1996. These dates are pleaded by both the plaintiff and Mr Rigg. The pleaded dates are supported by the affidavit material filed. The period during which S Stanton was first briefed was almost four years after the expiry of the limitation period and almost two years after the proceedings were purportedly commenced by the filing of a Statement of Claim. 33 During argument it was conceded by counsel for the plaintiff and Mr Rigg that this basis for a claim against S Stanton could not be or was not maintained. Whether or not such a concession was made, on the facts pleaded (there is no application for amendment and these particular facts are accepted by all parties) there can be no arguable basis for any claim for damages, whether in negligence or otherwise on this part of the claim. Mr S Stanton bears no responsibility for the failure to file process in time, the manner of their drafting or their content. EXTENSION OF TIME APPLICATION: COUNSEL IMMUNITY 34 The plaintiff's action against the SRA became statute barred on 2 July 1992 and initiating process (Statement of Claim) was filed on 13 September 1994. S Stanton was briefed in 1996 in relation to bringing an application for extension of time under s.52(4) of the Motor Accidents Act which was filed on 1 November 1996. 35 The defendant, SRA, on 20 August 1996, moved the Court for summary dismissal of the proceedings relying on the affidavit of Bernie McDade sworn 12 August 1996 and attaching relevant evidence of the first notice of the claim. This motion was adjourned and ultimately heard by Associate Justice Malpass together with the motion by the Plaintiff for extension of time. The application for extension of time was supported by an affidavit of the instructing solicitor, Jack Rigg, a statutory declaration in or to the same effect and an affidavit and statutory declaration by the plaintiff, each of which were served (and it seems filed) on 16 October 1996 and the notice of motion was filed on 1 November 1996. 36 When the matter was listed on 4 November 1996 it was adjourned until 5 December 1996 (which date was to be confirmed) for hearing. On 5 November 1996, S Stanton wrote to Mr Rigg insisting on further affidavits "with more detailed material in support of the motion". There was consent, initiated by the SRA, for the hearing of the two motions to be "stood over until next year" and the SRA required the deponent of each affidavit for cross-examination. On 4 February 1997 two further affidavits were filed and served on behalf of the SRA being affidavits of Robert J Walters and Bernie McDade each sworn on 31 January 1997 going to prejudice and annexing statements of potential witnesses. The matter came on for hearing before Associate Justice Malpass on 18 April 1997 and judgment issued on 3 June 1997 in which judgment his Honour refused the extension of time and granted, accordingly, the summary dismissal of proceedings. The reasons for judgment speak for themselves and concern predominantly the reasons for delay and the prejudice to the SRA. 37 These factual allegations, with somewhat less detail, form the basis of the alleged second ground for the claim of negligence against S Stanton. 38 The extracts of the Further Amended Statement of Claim in the 2001 Proceedings relating to this claim are set out above. Further in the Amended Second Cross Claim in the 1998 Proceedings, Mr Rigg alleges against S Stanton, in substantially identical terms, similar breaches of duty as is alleged in the 2001 Proceedings against him. 39 Essentially the breach of duty in this claim against S Stanton is said to have been, broadly summarised, failing to prepare witnesses and/or affidavits that answered adequately the case against them and failing to provide the detail necessary in the evidence adduced to the extent that each of those is different from the other. There is also a claim relating to a failure to seek an adjournment. 40 On this claim, Senior Counsel for S Stanton relied on counsel's immunity. 41 As best as it can be understood, the argument advanced by the Plaintiff to this submission was that the conduct that was said to found negligence was not sufficiently connected with the conduct of the case in Court for the immunity to arise. It was submitted , as I understand it, both in support of the argument concerning "insufficient connection" and also as a qualification, otherwise applicable to the immunity of counsel for work outside court, that the immunity applies only to a "deliberate strategic decision" of counsel and not to a "simple failure to advert or attend to a matter". 42 In other words, the immunity (assuming, against the plaintiff's first argument, it otherwise related to conduct intimately connected with the conduct of a case in court) applied to the deliberate decision to call as witnesses Jack Rigg and the plaintiff but does not apply to the failure to call other witnesses or adduce other evidence (assuming that such a "failure" was not deliberate). 43 It is not pleaded, nor is it obvious that there is some other aspect of the case that suggests, that there was a failure by S Stanton to turn his mind to evidence necessary to pursue the extension of time application. On the contrary, the pleadings assert the steps taken and include the calling of evidence. The affidavit material recites a letter from S Stanton to Jack Rigg seeking further details (see [33] infra) to support the motion. Rather, it is said, that S Stanton did not sufficiently turn his mind to the issue and accordingly breached his duty of care. 44 The issue of counsel's immunity from suit has recently (10 March 2005) been the subject of definitive exposition by the High Court. In D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR, 755; 214 ALR 92 [2005] HCA 12 (D'Orta), the High Court resolved whether the Australian common law would continue to recognise the immunity. The High Court held that it was still part of the law of Australia, predominantly for reasons associated with public policy, associated with the place of the judicial system and the finality of judicial determination of controversies. In so doing the Court held that Giannarelli v Wraith (1988) 165 CLR 543 should not be re-opened. 45 It is important to understand the rationale of the majority in order to deal with the arguments presented on this aspect of the claim. The majority in D'Orta summarises Giannarelli as standing, in part, for the proposition that "at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court." (D'Orta at [1]). The joint judgment (Gleeson CJ, Gummow, Hayne and Heydon JJ) described the appropriate nexus with work in court as that which is "intimately connected" (see [86] of D'Orta). 46 I repeat some extracts of the joint judgment which extracts deal with the need, as determined by majority of the High Court, to maintain the immunity. "[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. [35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". … [37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected. … [42] In R v Skinner, Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government. [43] The "unique and essential function" of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be relitigated. Yet relitigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client. … [45] Rather, the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be relitigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind. [46] A justification based on finality has as much force today as it did when Giannarelli was decided. Given this, what changes have occurred since the decision in Giannarelli which would necessitate a reconsideration of that decision? …" 47 Even though before me, counsel does not seek to re-agitate counsel immunity, it is important to bear in mind the underlying rationale of the immunity when considering arguments on its limits and the proper application of the principles adumbrated by the High Court. 48 In the current situation, the claim for negligence must depend on damage. To show damage, the plaintiff must show that the judgment of Associate Justice Malpass would have been different if the facts would have been adduced fully or properly. In other words, the Court must by definition re-litigate, on the basis of different evidence, that which has already been litigated and determined. Moreover, even if this were permissible, it would create interesting evidentiary and litigious issues which, themselves, would create public policy concerns. For example, would it be permissible for counsel to defend the claim on the basis that Associate Justice Malpass was wrong and that, therefore, no damage was caused by the act or failure to act? If Associate Justice Malpass were negligent, which I do not suggest, could the defendants claim contribution? 49 I turn, then, to the principles to be applied in relation to this aspect of the claim. Is the Conduct in Issue "Intimately Connected" with the Conduct of the Case in Court? 50 There are a number of cases, consistent with D'Orta and Giannarelli, that deal with the immunity. While some use different terminology the principle, however expressed, is binding and must be applied by me. While Kirby J (Boland v Yates (1999) 74 ALJR 209 at [150]) has described the "intimately connected" test as "impermissibly vague", if the conduct in question unarguably fits the verbal formulations of the test, then applying General Steels principles, I should strike out any claim based upon conduct in respect of which, on that formulation, the immunity would arise. 51 In Giannarelli, Mason CJ describes the immunity as having "no application to work done out of court which is unconnected with work done in court" (p 559). Further, Mason CJ said: "Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court." ( Giannarelli at 559-560) 52 To like effect is the passage in the reasoning of Brennan J in Giannarelli: "neither a barrister nor a solicitor may be sued by a client in respect of any act done or omission made in the conduct of the client's case in court or in the making of preliminary decisions affecting the way in which the case is to be conducted when it comes to a hearing." ( Giannarelli at 579) 53 All of the dicta (including the House of Lords in Saif Ali v Sydney Mitchell [1980] AC 198) supports, or is derived from, the formulation by McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187: "… the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing." 54 The conduct of S Stanton, about which complaint is made in relation to the extension of time consists of: (in the 1998 proceedings) a failure to alert the plaintiff and Mr Rigg to the existence of relevant statute and case law; failing to advise the plaintiff and Mr Rigg to file promptly the motion seeking extension of time; and failing to advise in relation to the preparation and conduct of the application for extension. In the 2001 proceedings it is alleged that S Stanton was negligent in advising on evidence to be adduced on the extension application and in failing to seek an adjournment of the extension application to allow further evidence to be adduced. The full extent of the allegations are set out earlier, but the foregoing summary will suffice for present purposes. Those allegations that do not fit neatly into the foregoing summary do not detract from that which now follows. 55 The drafting of affidavits, the determination of the contents of those affidavits and the advices relating thereto, indeed all the tactical decisions associated with the preparation for and presentation of the extension application were, in the circumstances of this case, "intimately connected" with conduct of the case in court and affected the hearing. It is difficult to imagine out-of-court work more connected with the conduct of the case in court than the determination of the witnesses to be called and the evidence to be adduced from them. To the extent that these allegations concern out-of-court work, they are fundamentally directed to such matters or to preliminary steps leading only to such matters. Deliberate Strategic Decision or Non-Deliberate Failure 56 As I have found on this aspect that the work was "intimately connected" to the conduct of the hearing, I am required to deal with the submission of the plaintiff that, in relation to out-of-court work, it is only a "deliberate strategic decision" to which the immunity attaches. 57 The support for such an argument was said to have been in the dicta of the House of Lords in Saif Ali and in the NSW Court of Appeal in McRae v Stevens (1996) Australia Torts Report 81-045, 18.10.96, (BC9604869). Saif Ali concerned, relevantly, the failure to consider the consequences of not adding a defendant and settling pleadings accordingly. It was said to fall well outside the immunity. McRae concerned a failure to advise on the limitation period in Queensland where suit was commenced and concerned an advice that the suit was required to be commenced in Queensland. 58 The circumstances of each case, upon which the plaintiff relied for this submission, were not such that, in my opinion, they would ever fall within the immunity and the comments concerning failure to consider particular aspects are a distraction from the main thrust of the judgments. In relation to Saif Ali, I agree with Lord Diplock, that "advising as to who was to be a party to an action and settling pleadings in accordance with that advice, was all done out of court. In my view, it manifestly falls outside the … immunity …" This statement manifests no distinction between deliberate acts and failures to consider. 59 While Beazley JA (with whom Priestley and Meagher JJA agreed) referred, in MacRae (at 63,690), to the fact that the advice as to choice of forum did not involve "tactical reasons", it is extrapolating beyond that which is legitimate to submit that Her Honour's comments stand as support for distinction agitated by the plaintiff between deliberate and inadvertent conduct. Her Honour was excluding an argument that may have been available that, where counsel advises on a forum because of tactical reasons associated with the manner in which the case will run, the immunity may apply. One can, hypothetically, envisage such a situation. For example, the application of the Evidence Act in NSW may have an impact on the admissibility of material and, therefore, the conduct of the case. For my own part, I operate under an injunction that the immunity should not be extended beyond that which is necessary to achieve the policy adumbrated in D'Orta; the immunity does not extend beyond that described by the High Court. 60 But the distinction sought to be drawn impermissibly narrows the criterion for the application of the immunity. D'Orta establishes that the immunity applies to acts and omissions (see, for example, D'Orta at [87]) and, while omissions may be deliberate, there is no logical reason to draw such a distinction and every logical reason not to draw it. 61 The immunity applies to deliberate and inadvertent conduct in court. It was not argued otherwise. Nor on the authorities could it be. The extension of the immunity to out of court conduct is due to the artificiality of drawing a geographical line at the court door. To render immune the failure to call a witness while counsel is before the court, or to ask a question of the witness, but to make actionable either or both failures if done in chambers is artificial in the extreme and illogical. 62 Further the determination, in this case, to call two witnesses, the plaintiff and Mr Rigg, was a deliberate act. To sue for what is alleged to be inadvertent failure not to call others shows the artificiality of the distinction. Every occasion on which an advocate appears there are decisions made which affect the conduct of the hearing and there may be a number of matters that, consequently, are not considered. Whether the conduct in question is deliberate or inadvertent is irrelevant; it matters only whether the conduct is "intimately connected" in the sense already discussed. 63 To the extent that there needs to be confirmation of that approach it is most succinctly found in the judgment of Gleeson CJ in Keefe v Marks (1989) 16 NSWLR 713. The substance of the allegation in Keefe v Marks is that the barrister "did not … direct his mind to the desirability of making … a claim for interest" (at 718.G) to which Gleeson CJ commented: "The substance of the allegation … is that he was negligent in the way in which he conducted [the] action, and the principle of immunity which applies in such a case cannot be circumvented by drawing fine distinctions between the preparation and the conduct of the case, or between the … failure to advert to the matter while he was in Chambers and his failure to do so while he was in Court." (720.B) Inadvertence, to some aspects of a decision affecting the conduct of a cause in Court, does not take the matter beyond that which is immune. 64 I have dealt more fully with the principles associated with the application of the immunity principles than is probably warranted. In the absence of another attempt to overthrow the immunity, there is little, if any, doubt about the terms of that immunity. The application of the immunity, notwithstanding an attempt to be ingenious in circumventing it, depends only on a question of fact, namely, whether that which is alleged is conduct "intimately connected" to the hearing in court of the cause. On the allegations in these pleadings (and the evidence upon which the plaintiff relies) the acts or omissions, of S Stanton, relating to the extension of time application about which complaint is made, are so intimately connected to the conduct of the cause in Court that there is an immunity from suit in relation to them. The contrary is unarguable. I dismiss this aspect of the claims. FAILURE TO ADVISE ON CAUSE OF ACTION AGAINST SOLICITOR 65 The last aspect of the allegations against S Stanton is that which relates to the failure to advise the plaintiff that the plaintiff has, or may have, a cause of action against Jack Rigg in a time frame consistent with the plaintiff's capacity to act upon the advice. 66 As previously stated, it is alleged that S Stanton breached his duty of care to the plaintiff because, on 4 August 1998, S Stanton advised the plaintiff's mother, an agent for relevant purposes of the plaintiff, that the plaintiff should obtain independent legal advice about a possible cause of action against Mr Rigg. It is said that the limitation period, for the plaintiff to sue Mr Rigg for failing to file proceedings against the SRA in time, expired on 2 July 1998 and that, therefore, S Stanton was negligent in not advising the plaintiff, about the possibility of a cause of action against Mr Rigg, and breached his duty to the plaintiff. 67 This aspect of the claim depends on three major elements: * that S Stanton owed the plaintiff a duty to inform him of the possibility of a cause of action under which the plaintiff could sue Mr Rigg; * that the limitation period for the possible cause of action expired on 2 July 1998; * that the advice or information on the possibility of a cause of action, was not given until after the expiry of the limitation period. I will deal with these issues in reverse order. 68 The claim against S Stanton in the Further Amended Statement of Claim in relation to this aspect of the case is pleaded in paragraph 33(b) and particularised. That pleading and particulars are reproduced in this judgment at [27] infra. It claims, which, at least for present purposes, is accepted, that the first indication to the plaintiff or his agent (other than Mr Rigg) that there was a need for independent advice was 4 August 1998 which was too late to sue Mr Rigg, at least for failing to commence proceedings against the SRA by 1 July 1992 (see Wilson v Rigg [2002] NSWCA 246). 69 As made clear by the Court of Appeal, the 1998 proceeding nevertheless were not out of time except in relation to that failure (see Wilson v Rigg [2002] NSWCA 246 at [55], [56] and Order 3 in [59]). The 1998 Proceedings as they initially existed sued for that failure but no longer do. Paragraph 4A alleges a duty on Mr Rigg, as part of his retainer, to use reasonable care, skill and diligence. It seems to have been assumed in argument, at least by Counsel for the Plaintiff, that this was a claim founded in negligence. For my own part, it is not obvious that the claim is so confined. While it would clearly include negligence, as is pleaded in paragraph 4 of the Further Amended Statement of Claim in the 1998 Proceedings there was a contract between the Plaintiff and Mr Rigg. The 1998 Proceedings do not purport to set out the terms of that contract but it may be a matter that, between the parties, has been the subject of further and better particulars or agreement. The Court is, and usually would be, unaware of such exchanges at this stage or proceedings. However, a proper reading of the Further Amended Statement of Claim makes clear that there was a contract between Mr Rigg and the Plaintiff that went well beyond that pleaded in paragraph 4. For example, it included taking the proceedings for the extension of time. Consequently it seems that the terms of the contract is a matter which may be the subject of evidence. It would seem likely, and, at the very least, possible, that the terms included simply an instruction to do all that is necessary to obtain for the plaintiff appropriate compensation for the injuries which, of course, would include taking proceedings before 1 July 1992 against the SRA. That also accords with the continuing negotiations with the SRA even after 1 July 1992. Even if there were no substantive negotiations after July 1992, or after June 1997, it would not defy imagination for some settlement to have been reached and, if an offer of substantially all that was claimed were offered by the SRA at that time, it would not have been beyond the ordinary understanding of a retainer of this kind that Jack Rigg would be required to perform all work to bring about a settlement favourable to the plaintiff. 70 As was determined by the Court of Appeal, on 2 July 1992 the value of the plaintiff's cause of action against SRA diminished and the plaintiff suffered damage. Time expired on 2 July 1998 for suing Mr Rigg for failing to file proceedings, but the retainer still continued. If the extension of time had been successful the damage associated with the earlier breach would have been wholly mitigated (save for the question of costs and the like). If, regardless of the extension of time, a settlement had been reached with the SRA for all the damage, again the damage from the failure to file proceedings in time would have been substantially mitigated. Until such time as the contractual relationship between the Plaintiff and Mr Rigg came to an end the latter hypothetical was possible, albeit extremely unlikely. After the dismissal of the proceedings by Associate Justice Malpass, even the former hypothetical was possible, albeit remote, because further proceedings, and/or a further notice of motion seeking extension, could have been filed and successfully agitated. 71 The relevance of the above is that it may be that proceedings by the plaintiff for breach of contract against Mr Rigg, which breach included, as a particular, the failure to file proceedings before 1 July 1992, are included in the 1998 Proceedings. Notwithstanding the reluctance in some to imply into the retainer a duty substantially identical to the tortious duty (see Hawkins v Clayton (1998) 164 CLR 539 at 583 et seq, per Deane J), a retainer may well be the kind of contract that would have implied a term that the solicitor "would not, without reasonable and proper cause, conduct [himself] in a manner likely to destroy or seriously damage the relationship of confidence and trust" between solicitor and client (see Malik and Mahmud v BCCI [1998] AC 20 at 34 per Lord Nicholls and at 45 per Lord Steyn). 72 If any of the above is found to exist, it is at least arguable that the 1998 Proceedings against Mr Rigg would, even without any negligence associated with the running of the extension of time application, include all of the damage arising from the failure to file proceedings against SRA prior to 2 July 1992. On one view the cause of action for breach of contract in such regard did not arise until termination of the retainer (see by analogy, Hawkins v Clayton at 589-590, per Deane J). I do not for present purposes need to deal with these issues; nor do I need to deal with the assessment of damage in contract and whether it would include such issues. 73 The above discussion arises because Senior Counsel raises two fundamental bases for summary judgment in relation to this third aspect of the claims against S Stanton. The first is the non-existence of the cause of action and the second is the absence of damage. I shall deal with each, because each, on its own, if correct, would warrant summary judgment and I shall deal with them in reverse order. Absence of Damage 74 Senior Counsel for S Stanton submits that, because there is a claim against the solicitor, Jack Rigg, by the plaintiff, under Walmsley v Cosentino, for failing to advise the plaintiff to obtain independent advice, which claim would entitle the plaintiff to recover damages for Rigg's failure to sue the SRA, no damage has been caused by any failure by S Stanton to advise the plaintiff to sue the solicitor. 75 Assuming for present purposes only (with which I will deal later) that there is a cause of a action against S Stanton for failure to advise to take action against the solicitor, or, at least to seek independent legal advice, that action is based on an allegation of a quite separate and distinct breach of duty by S Stanton than the breach of a separate duty by the solicitor. Even though both breaches, if proven, are factually related they are not the same duties or the same breaches. Further, even if it could be said that all of the damage can be recovered by the Plaintiff from Jack Rigg, that does not mean that Jack Rigg cannot seek contribution for breach causing the same injury, nor that the plaintiff could not independently seek damages from S Stanton. 76 In the current circumstances, it is understandable that the view would be taken that damages would be exhausted with the claim against Jack Rigg. With the exception of SRA, Jack Rigg is, on the allegations, the primary tortfeasor. It is Jack Rigg's failure to file proceedings in time that denied the plaintiff the ability to sue the SRA. It is Jack Rigg's failure to refer the Plaintiff to independent solicitors which denied the plaintiff the ability to sue Jack Rigg for that initial act of negligence. It is, therefore, understandable that S Stanton would say that any failure by him, to advise either to obtain independent advice or to sue Jack Rigg, does not add to the damages already set to be recompensed. However, if there were a duty on S Stanton to advise in that way, then a breach of it has led to the plaintiff not suing Jack Rigg for the initial act of negligence and has, therefore, caused damage. How, if at all, and in what proportion, if any, Jack Rigg and S Stanton are liable is a matter for trial, not summary judgment. It is, at least, arguable that some damage has been caused whether as joint tortfeasor or otherwise. The Application of Walmsley v Cosentino to Barristers 77 In Walmsley v Cosentino [2001] NSWCA 403, the Court of Appeal adumbrated the principle that, by reason of the relationship between solicitor and client, a solicitor was under a duty to advise the client of a cause of action or possible cause of action and the time before which such proceedings would need to be commenced in default of which such proceedings would, themselves, become time barred. (see [56] of Walmsley) 78 It is not clear whether Walmsley was a statement of contractual or tortious duty. It requires a solicitor to act against his or her own interests and advise on a matter in which , but for Walmsley, there is no duty to act. It requires a positive act on a separate and quite distinct cause of action. It may, as earlier recited, be part of a more general duty, that, by reason of certain relationships, exists and under which a party "would not, without reasonable and proper cause, conduct [himself or herself], in a manner likely to destroy or seriously damage the relationship of trust and confidence" (see Malik, infra). It is difficult, if such a duty were to exist, to think of a more suitable relationship, than solicitor-client, for its inclusion. 79 If the duty were based upon such a concept it would be fundamentally contractual. There are significant differences between the relationship between solicitor and client and between barrister and lay client. (I do not here include the situation where there is direct access.) 80 On one view, the traditional view, there is no contract between barrister and lay client. Any contract is between client and solicitor and between solicitor and barrister. Moreover, in circumstances of the kind of duty sought here to be imposed, there are significant differences in the duty and relationship: a The barrister is a potential witness, but not a party, in proceedings between client and solicitor; b The barrister has information which may be confidential to either the solicitor or client and may not be known by the other party; and c The barrister may have reasonable grounds to believe that his or her own conduct may be attacked. In those circumstances the law requires the barrister not to advise. (See Rule 87 of Bar Rules, given effect at the relevant date by s.57A and s.57D of the Legal Profession Act 1987 (NSW ) and today by s.711 of the Legal Profession Act 2004 ). 81 Further, the barrister would be required to breach the duty to the solicitor in order to comply with the duty to the client in circumstances where the barrister cannot be required to deal directly with the client and is not briefed (nor could be briefed) to advise on such a cause of action. It, of course, would be very different if the original negligence, on which independent advice were required, were that of the barrister. 82 Further, in this case, the barrister, S Stanton, did inform the solicitor, Jack Rigg, of the need to advise the client to obtain independent legal advice and did so on or about 2 July 1997, some 12 months prior to the expiration of the relevant time limitation. On at least one view of the relationship between barrister, solicitor and client that was notification to the client, the information in which was not conveyed by the solicitor to the client and, therefore, gave rise to a quite different breach of duty by the solicitor. 83 It is submitted by Senior Counsel for S Stanton that the nature of the duty described by the Court of Appeal is not applicable to barristers. 84 The considerations above show that such an argument has significant force. However, the principles applicable to an application for summary judgment must allow a party to establish facts upon which an arguable extension of the law can be based. Whatever the force of the argument of Senior Counsel for the barrister, S Stanton, the plaintiff ought not be denied the ability to argue for extension of Walmsley v Cosentino to counsel and to establish the facts to form the basis of that argument. I reject the notice of motion insofar as it seeks the dismissal or striking out of the claim against S Stanton based on a failure to advise as a separate cause of action against the solicitor or advise the client to obtain independent legal advice either at all or at a time that would allow an action to be commenced. CONCLUSION 85 I have accepted that two of the three classes of claim against Stanton are, on authority binding on the Court and on the facts alleged in the Further Amended Statement of Claim as explained by evidence tendered on the motion, unarguable and, in accordance with the strict tests in General Steels, should be struck out. I will hear the parties further, to the extent desired, on the form of orders, but, at present and subject to any further submission, propose the following orders: a The Second Cross Claim in proceedings 20364 of 1998 in this Court be struck out; b As a consequence of Order (a) above, the Third Cross Claim in proceedings 20364 of 1998 in this Court be struck out; c In proceedings in this Court, being 20447 of 2001, the entirety of paragraphs 27(a), 27(b) and 33(a), of the Further Amended Statement of Claim be struck out; d In proceedings in this Court, being 20447 of 2001, in the Second Cross Claim the following paragraphs are struck out: i. Paragraph 11 insofar as it repeats paragraphs 16, 17, 20, 21, 22, 23, 24, 25 and 26 of the Further Amended Statement of Claim; ii. Paragraphs 12, 13, 14 and 15 in their entirety. e The defendant in 20364 of 1998, Jack Rigg, pay one third of the Second Cross Defendant's costs of the motion as taxed or agreed, to be payable forthwith; f The plaintiff and fifth defendant in proceedings 20447 of 2001 pay a further one third of the Second Cross Defendant's costs of the motion as taxed or agreed; g Two thirds of the Plaintiff's costs of the motion will be the Plaintiff's costs in the cause. I will hear the parties on the above orders and, in particular, the liability as to costs. ********** 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.