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Home | Blog | The future of Advocate’s Immunity in Australia

Up until recently legal practitioners in Australia have enjoyed a largely unfettered legal protection known as ‘advocate’s immunity’.

What is Advocate’s Immunity?

In Australia, an advocate’s immunity from suit was first clearly recognised by the High Court in Giannarelli v Wraith [1988] HCA 52. In that case, the High Court held that barristers and solicitors are immune from liability for negligence in the conduct of work done in court, but also work done out of court which leads to a decision affecting the conduct of the case in Court (i.e. actions which are intimately connected with the conduct of a case in court). The Court held that the immunity was justified by public policy considerations including the ‘real risk of adverse consequences for the efficient administration of justice’, the public interest in the finality of the resolution of disputes, and the ‘need to avoid re-opening proceedings to prevent collateral attack on judgments by subsequent negligence proceedings as this would undermine the status of the initial decision’ and destroy ‘public confidence in the administration of justice’.

While there have been recent calls to follow other jurisdictions such as England, New Zealand and Canada to abolish the doctrine because it provides an unfair privilege to legal practitioners that is not afforded to other practitioners such as doctors, Australian Courts have been reluctant to do so. Indeed, the decision in Giannarelli was reaffirmed some 17 years later by the High Court in the case of D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.

The recent High Court decision of Atwells v Jackson-Lalic Lawyers Pty Limited [2016] HCA 16 has however significantly curtailed the principle and in doing so, has followed other jurisdictions in the move towards abolishing this anachronistic legal protection.

In this case, a bank sought to enforce a guarantee of approximately $1.75 million on a loan taken out by the appellants. It was alleged that an employee of the respondent law firm negligently advised the appellants to settle the claim and also accept liability for a larger amount because it ‘would not make any difference’ whether they defaulted for approximately $3.4 million or $1.75 million. In relation to the defence of advocate’s immunity, the Court of Appeal held that the trial judge should not have refused the appellants’ application to first determine whether the advice would attract advocates’ immunity, but also held that the advice would attract that immunity because it led directly to the settlement of the matter, and was therefore ‘intimately connected’ with the proceedings. The decision was appealed and the High Court granted special leave to hear the appeal.

The Court, by a majority accepted the argument that the scope of the immunity should not be extended to cover negligent advice given by a lawyer, which leads to the settlement of a case by consent orders through an agreement between the parties. The effect of the decision is that unless a lawyer’s work affects the judicial determination of a case by a Judge on its merits within the context of a written judgment, the advocate’s immunity will not apply.

The Court however unanimously declined to reconsider the previous decisions in Giannarelli and D’Orta and therefore rejected the appellant’s arguments to abolish the immunity in its entirety. This they said should be left for the legislature.

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