Hearsay ... the Journal of the Bar Association of Queensland
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Issue 74 - Dec 2015
High Court to Revisit Advocates’ Immunity Print E-mail

lawyer_intro.jpgOn 7 August 2015, the High Court granted special leave to appeal in the matter of Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2015] HCATrans 176.

Application for special leave to appeal was brought from the judgment of the New South Wales Court of Appeal, [1] which had found that the principle of advocates’ immunity was a complete answer to a claim against lawyers for damages for allegedly negligent advice leading to the settlement of proceedings.

The proceedings arose out of a guarantee given in respect of certain bank advances. Proceedings by the bank against the guarantors were settled on terms that included the guarantors consenting to judgment for substantially more than the amount for which they would have been liable to the bank. They did so on advice given by the lawyers.

In proceedings against the lawyers for negligence, it was ordered that the question of advocates’ immunity be determined separately. Facts were agreed for that purpose. However, the learned primary judge declined to answer the separate question. From that refusal, leave to appeal to the Court of Appeal was sought.

In the Court of Appeal, Bathurst CJ, with whom Meagher and Ward JJA agreed, held that the primary judge should not have declined to answer the separate question, finding that the circumstances existed that made such a determination appropriate. [2]

The Chief Justice observed:

[36] In D'Orta the plurality stated at [86] that there was no reason to depart from the test for advocates' immunity, described in Giannarelli v Wraith [1988] HCA 52 ; (1988) 165 CLR 543 (Giannarelli) at 560, as extending to work done in court or work done out of court which leads to a decision affecting the conduct of the case in court. They did not consider there was any difference in stating the latter part of the test as work "intimately connected with work" in court.

[37] In the present case, in my opinion, the work fell within categories of work done out of court affecting the conduct of the case in court. The alleged breach occurred in advising on settlement of the guarantee proceedings during the luncheon adjournment on the first day of the hearing and more importantly on the evening of that day. The Agreed Facts also state that the consent order the first respondent and Ms Lord were advised to sign were signed on that evening and submitted to the Court on the following day.

[38] The advice thus led to the case being settled. Put another way it was intimately connected with the conduct of the guarantee proceedings.

On the application for special leave in the High Court, the Applicant argued that the Court of Appeal erred in applying the “intimate connection” test and, alternatively, that the time had come to reconsider the question of advocates’ immunity as confirmed in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, particularly in light of the abolition of advocates’ immunity in New Zealand by the decision in Lai v Chamberlains [2007] 2 NZLR 7.

The respondent argued that the entire question of advocates’ immunity had been fully argued in D’Orta and that the only thing that had changed since then was the fact of the New Zealand judgment in Lai v Chamberlains. The case was not one that came within the approach of the High Court to the question of reconsidering one of its earlier decisions, as articulated in cases such as John v Federal Commissioner of Taxation [3] and Wurridjal v the Commonwealth. [4] The respondent argued that the facts of the case fell clearly within the principle set out in D’Orta and there was no wrong application of principle by the Court of Appeal.

Special leave was nonetheless granted.

The appellant’s arguments which appear more fully in its written submissions on appeal, raise some interesting issues. They include the argument that the proper test for immunity is limited to in application decisions made by the advocate, not by the client. That test, articulated in Giannarelli and approved in D’Orta, is that immunity applies to “work done in court or work done out of court that leads to a decision affecting the conduct of the caser in court”: D’Orta at [86]. Because the decision to settle was a decision of the client, not of the lawyers, immunity does not apply to the conduct leading to that decision, so the argument goes.

The appellant also argues that immunity should only be applied where necessary to prevent relitigation. It will be remembered that the rationale for the immunity is, in effect, to preserve finality in litigation by preventing the re-opening of earlier litigation. The appellant argues that immunity only ought apply in circumstances where that principle is threatened, and not otherwise – in other words it is not a “blanket” immunity.

The appeal is expected to be heard in early 2016.

The relevant court documents, including links to the Court of Appeal judgment, the transcript of the Special Leave application and the parties’ submissions, including those of the New South Wales Law Society intervening, can be found here.

Adrian Duffy QC

[1] [2014] NSWCA 335

[2] [2014] NSWCA 335, [18]-[19], citing Carl Zeiss Stifung v Herbert Smith & Co [1969] 1 Ch 93, 98

[3] (1989) 166 CLR 417, 438-9

[4] (2009) 237 CLR 309, [65]-[71]

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