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Advocates' immunity May 5, 2016

Legal practitioners – Negligence – Advocate’s immunity from suit – Advice given out of court – Where advice given by advocate led to agreed settlement of proceedings – Where terms of settlement reflected in consent orders made by court and court’s noting of agreement – Where negligence proceedings issued in respect of advice – Whether advocate immune from suit.

Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA


In D’Orta-Ekenaike v Victoria Legal Aid, this Court held that the advocate’s immunity from suit under the common law of Australia in respect of his or her participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in court. In reaching that conclusion, the Court declined to reconsider its earlier decision in Giannarelli v Wraith, in which it was held that the advocate’s immunity extends to “work done out of court which leads to a decision affecting the conduct of the case in court.” That extension of the scope of the immunity was justified by the view that, as Mason CJ said: “it would be artificial in the extreme to draw the line at the courtroom door.” But the immunity was not extended to all work in any way connected to litigation. Mason CJ explained:

“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. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said:

‘… 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.'”

This statement of the scope of the immunity by Mason CJ was confirmed in D’Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity:

“there is no reason to depart from the test described in Giannarelli as work done in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’ or … ‘work intimately connected with’ work in a court.

But the intimate connection required to attract the immunity is a functional connection between the advocate’s work and the judge’s decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. …the public policy, protective of finality, which justifies the immunity at the same time limits its scope

In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court.

The Court of Appeal concluded that the negligence proceedings would necessarily involve a re-agitation of the issues determined in the guarantee proceedings; and a reconsideration of those issues in order to determine whether the respondent had been negligent would offend the principle of finality. Accordingly, the respondent was immune from suit, and judgment was entered for the respondent in the proceedings.

The decision whether to reconsider Giannarelli and D’Orta must be made in light of the “grave danger of a want of continuity in the interpretation of the law.” The decision must be informed by “a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law”. To overturn Giannarelli and D’Orta would generate a legitimate sense of injustice in those who have not pursued claims or have compromised or lost cases by reference to the state of the law as settled by these authorities during the years when they have stood as authoritative statements of the law. An alteration of the law of this kind is best left to the legislature.

To speak of the exercise of judicial power to quell controversies as an aspect of government is to make it clear that the immunity is not justified by a general concern that disputes should be brought to an end, but by the specific concern that once a controversy has been finally resolved by the exercise of the judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong.

The advocate’s immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully.

…it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attracts the immunity….the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court.

the immunity does not extend to advice which does not move the case in court toward a judicial determination.

But to say that is not to identify conduct by counsel which affects the judicial determination of the case. This expansive view of the scope of the immunity was expressed by a court in New Zealand before the immunity was abolished in that country by the decision of the Supreme Court of New Zealand iin Lai v Chamberlains. It may be observed, with the greatest respect, that by allowing an expansive view of the scope of the immunity so that its operation was wider than was “absolutely necessary in the interests of the administration of justice”, the decision in Biggar v McLeod effectively strengthened the case for the abolition of the immunity in New Zealand.

The respondent argued that it would be anomalous to hold that the immunity does not extend to advice which leads to a disadvantageous compromise but does extend to negligent advice not to compromise which leads to a judicial decision less beneficial to the client than a rejected offer of compromise.

that negligent advice not to settle is “intimately connected” with the ensuing judicial decision of the court so as to attract the immunity, is not sound. The assumption on which the respondent’s argument depends, that is,

it is a functional connection between the work of the advocate and the determination of the case by the court which is necessary to engage the immunity.

Likewise, advice to cease litigating or to continue litigating does not itself affect the judicial determination of a case.

Decisions by the courts, as the judicial organ of the State, are necessary precisely because the parties cannot achieve a compromise of their disputes. The advocate’s immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack.

…the terms of the settlement agreement, by reason of which the appellants claim to have been damaged, were not, in any way, the result of the exercise of judicial power.

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