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Werren, Julia and Williamson, Andrea --- "Advocates' immunity: what makes Australian lawyers so special?" [2006] NZYbkNZJur 20; (2006) 9 Yearbook of New Zealand Jurisprudence 312

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Advocates' immunity: what makes Australian lawyers so special? [2006] NZYbkNZJur 20 (1 October 2006); (2006) 9 Yearbook of New Zealand Jurisprudence 312

Last Updated: 24 April 2015

Advocates’ Immunity: What Makes Australian

Lawyers So Special?

Julia Werren* and Amanda Williamson#

i. intrOdUctiOn

In this article, we examine the nature of advocates’ immunity in light of an Australian High Court decision maintaining the doctrine. That case upheld and arguably extended advocates’ immunity from suit for work intimately connected with court proceedings in Australia, and is in stark contrast to the position in other comparable jurisdictions. We explore the history and extent of advocates’ immunity, as well as evaluating the current justification for retaining the immunity in Australia, canvassing comparative perspectives from other jurisdictions. We argue that the justification for retaining and extending the immunity in Australia is problematic, and should be reconsidered to ensure that public confidence in the legal profession is not eroded.

Following the High Court decision of D’Orta-Ekenaike v Victorian Legal Aid and Another1 (‘D’Orta-Ekenaike’), it is clear that in the short term, advocates’ immunity is to remain a doctrine of the Australian legal system. In this decision, the majority determined that advocates’ immunity should be retained, affirming and arguably extending the earlier decision of Giannarelli v Wraith2 (‘Giannarelli’). In Giannarelli, it was noted that both barristers and solicitors acting as advocates enjoy common law based immunity from suit for both in-court work, as well as for out of court work that is intimately connected with the case. In D’Orta-Ekenaike however, this immunity was also extended to an instructing solicitor not appearing as an advocate in the trial. The majority’s rationale for preserving and extending the immunity is based upon the premise that it was a ‘central and pervading tenet’ of the judicial system that finality of cases, once litigated, remained.3 Allowing the re-litigation of cases, it was argued, detracts from the binding nature of decisions, and furthermore, the duty of the advocate to the court.

* BA, LLB (NE), MHlth&MedLaw (Melb), Associate Lecturer, School of Law, University of New England.

# BCom, LLB (Hons), Grad. Dip. Legal Practice; PhD Candidate, School of Law, University of New England; Legal Practitioner of the Supreme Court of New South Wales. The views expressed in this article are entirely those of the authors.

1 [2005] HCA 12; (2005) 214 ALR 92.

2 (1988) 165 CLR 543.

3 D’Orta-Ekenaike v Victorian Legal Aid and Another [2005] HCA 12; (2005) 214 ALR 92.

What is not so certain however is support for the retention of the doctrine in Australia, both from the public at large, legal commentators, and even from some members of the legal profession. Indeed, the immediate past president of the NSW Bar Association, Bret Walker, SC, argued that State parliaments should intervene to allow litigants the opportunity to appeal decisions that were made as a result of the ‘flagrant incompetence of counsel.’4 Justice Kirby, the only dissenting judge in D’Orta-Ekenaike, noted that compared to other professions, lawyers are the only professionals in Australia that enjoy such an immunity, with doctors, architects and accountants held responsible for their actions with no benefit of an immunity from suit.5 Further, Justice Kirby pointed to the fact that in other jurisdictions, where the immunity has been abolished (such as the United States of America and Canada) there has not been a flood of re-litigation as feared by the majority in D’Orta-Ekenaike.6

It is the purpose of this paper therefore to explore firstly the history and extent of the immunity, concentrating in particular on the recent decision of D’Orta-Ekenaike to determine the current precise scope of the immunity. In canvassing these issues, the paper examines issues of public policy pertaining to advocates’ immunity, and assesses the current justification for the retention of the doctrine. The paper concludes with a critical analysis relating to the validity of the doctrine within the contemporary Australian legal system.

ii. hiStOricaL BaSiS OF advOcateS’ immUnity

Rondel v Worsley7 is the chief modern authority for the doctrine of advocates’ immunity, though as seen in the judgments in the Court of Appeal decision of Rondel,8 a number of earlier decisions have also highlighted the existence of the immunity. As Lord Denning notes in the Appeal case, many of these earlier decisions9 were based upon the premise that advocates did not have a contract with their clients, thus providing no basis for an action. However, in Rondel, the lack of a contract between advocate and client was deemed no longer sufficient to form the basis of advocates’ immunity, as a result of the decision of Hedley Byrne & Co Ltd v Heller & Partners Ltd.10 Rather, a range of public policy grounds were proposed as underpinning the immunity, including:

  1. Michael Pelly, ‘Litigants should be able to appeal: SC’, Sydney Morning Herald (Sydney) March 16 2005, 3. <>

5 D’Orta-Ekenaike v Victorian Legal Aid and Another [2005] HCA 12; (2005) 214 ALR 92, 169 (Kirby J).

6 Ibid.

7 [1969] 1 AC 191.

8 [1967] 1 QB 443.

9 Fell v Brown (1791) Peake 131.

10 [1963] 3 All ER 575.

1. The fact that barristers owe a duty first and foremost to the court as officers of the court.11 As such, this duty to the court should not be compromised by fear of litigation on the part of a disgruntled client. Advocates’ or barristerial immunity therefore operates to ensure counsel can uphold their duty to the court without concern that they would be litigated against by their clients. As noted by Lord Reid:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. As an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.12

2. The fact that other participants in the judicial process, such as judges and witnesses, enjoyed protection from suit, and that as a result of this, advocates should be afforded the same protection. The Australian case of Cabassi v Vila13 was noted, where it was held that: action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.14

3. The existence of the cab-rank rule, which precludes barristers / advocates from selecting clients to represent. A barrister is bound to accept a brief under this rule, the operation of which the House of Lords thought would be problematic with the removal of the immunity.15

4. Lastly, to ensure finality of proceedings. The finality argument proposes that immunity should be upheld to ensure certainty in the legal system, and as noted in Rondel, there should be ‘procedure and machinery for appeals

11 Rondel v Worsley [1967] UKHL 5; [1967] 3 All ER 993, 998.

12 Ibid.

13 [1940] HCA 41; (1940) 64 CLR 130.

14 Ibid, 140 (Starke J).

15 Rondel v Worsley [1969] 1 AC 191, 227.

and the effectiveness of appeal procedure can be kept under review, but the attainment of finality must be an aim of any legal system’.16 In Rondel, the undesirability of re-litigation was seen as adverse to the public interest, and therefore, another sufficient incentive to retain advocates’ immunity.

These policy reasons were discussed, but not approved in full, in the later United Kingdom case of Saif Ali v Sydney Mitchell & Co,17 where the House of Lords upheld the immunity as stated in Rondel (although finding that the immunity did not extend to the activities of the barrister in question). In Australia, advocates’ immunity was approved by the High Court in Giannarelli. The High Court in Giannarelli, in a similar vein to the House of Lords in Saif Ali, did not approve of all of the broad policy reasons used to retain the immunity in Rondel. Here, the majority agreed that the most relevant policy grounds were those that related to the barrister’s duty to the court, the immunity that other participants in the court process enjoyed, and also, ensuring the finality of proceedings. Mason CJ in particular noted the special position of the advocate, which underpins the duty owed by the advocate to the court:

A barrister’s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice.18

Mason CJ also noted further the effect that relitigation of issues through collateral means would have on this administration of justice, with particular relevance to the issue of finality:

Exposure of counsel to liability for such negligence would unquestionably encourage litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation19

Deane, who provided a dissenting judgement (in addition to Toohey and

Gaudron), spoke forcefully against the retention of the immunity:

I do not consider that the considerations of public policy which are expounded in Rondel v Worsley and in the majority judgments in the present case outweigh or even balance the injustice and consequent public detriment involved in depriving a person, who is caught up in litigation and engages the professional

16 Rondel v Worsley [1967] UKHL 5; [1967] 3 All ER 993, 1015.

17 [1980] AC 198.

18 Giannarelli v Wraith (1988) 165 CLR 543, 556 (Mason CJ).

19 Ibid, 558 (Mason CJ).

services of a legal practitioner, of all redress under the common law for ‘in court’ negligence, however gross and callous in its nature or devastating in its consequences.20

The outcome of Giannarelli remained good law in Australia, with the immunity surviving review in the decision of Boland v Yates Property Corporation Pty Ltd.21 The United Kingdom decision in Arthur J S Hall & Co v Simons22 followed soon after Boland, where the House of Lords abolished advocates’ immunity, and dismissed emphatically the public policy reasons that were used to support the immunity in Rondel. Lord Steyn rejected the notion of the cab-rank rule as justification for the immunity, noting that whilst a ‘valuable professional rule’ it was not sufficient to justify ‘depriving all clients of a remedy for negligence causing them grievous financial loss.’23 Similarly, the duty of the advocate to the court was not seen as a sufficient basis for the immunity due to the fact that many other professionals experienced conflicts with duties to clients and professional codes.24 He noted further that the risk of relitigation through collateral attack would be slim if the immunity were removed, based on precedent from the case of Hunter v Chief Constable of the West Midlands Police,25 where it was held that courts could strike out matters that were an abuse of process.26 In addition to this, Lord Steyn noted that frivolous or unmeritorious claims would not be successful as litigants bringing such a claim ‘will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome.’27

Lord Hoffman dismissed the argument that lawyers were in a special position due to the ‘difficult’ nature of advocacy, noting that other professionals in similarly complicated predicaments did not enjoy such an immunity.28 With respect to the policy reasons raised in Rondel, Lord Hoffman noted:

In the conditions of today, they no longer carry the degree of conviction which would in my opinion be necessary to sustain the immunity. The empirical evidence to support the divided loyalty and cab rank arguments is lacking; the witness analogy is based upon mistaken reasoning and the collateral attack argument deals with a real problem in the wrong way. I do not say that Rondel

20 Ibid, 588 (Deane J).

21 [1999] HCA 64; (1999) 167 ALR 575.

22 [2000] UKHL 38; [2000] 3 All ER 673.

23 Arthur J S Hall & Co v Simons [2000] UKHL 38; [2000] 3 All ER 673, 680 (Lord Steyn).

24 Ibid, 682 (Lord Steyn).

25 [1981] UKHL 13; [1982] AC 529.

26 Arthur J S Hall & Co v Simons [2000] UKHL 38; [2000] 3 All ER 673, 681 (Lord Steyn).

27 Ibid, 683 (Lord Steyn).

28 Ibid, 690-1 (Lord Hoffman).

v Worsley was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable and your Lordships must consider the arguments afresh.29

Clearly, this statement dealt another blow to the stability of the policy reasons used to support the immunity in contemporary times. Their Lordships were unanimous in removing the immunity in civil matters, and through a 4-3 majority also removed the immunity for criminal matters. There was clear agreement that the policy reasons previously used to justify the retention of the immunity were no longer sufficient to uphold it.

With the outcome of Arthur Hall removing advocates’ immunity in the United Kingdom, and with a similar position enjoyed in the United States and Canada, many commentators believed that the next time the immunity came up for review before the High Court in Australia they would follow suit. The House of Lords had rendered fragile the policy arguments upon which the immunity rested, and many believed that the same reasoning would also persuade the High Court to remove the immunity. Further, many believed that D’Orta- Ekenaike would be the vehicle through which the revision of the immunity would be achieved.

A decision from the New Zealand Court of Appeal, Chamberlains v Lai,30 reached immediately prior to that in D’Orta-Ekenaike, added weight to the assumption that the High Court would abolish the immunity. In Chamberlains v Lai, the New Zealand Court of Appeal, by a 4-1 majority, followed the House of Lords in Arthur Hall and removed the immunity in New Zealand. In following the justification set down in Arthur Hall, the majority noted that the policy arguments surrounding conflicting duties between client and court, re-litigation through collateral attack and the general increase in litigation, and the cab-rank rule were insufficient to justify the immunity.31 In response to such concerns, Hammond J, in the majority judgment, noted that the competing duties between court and client were mirrored in other professions, and that professional frameworks existed to temper such duties.32 He also noted that the cab-rank rule did not impact greatly upon the administration of justice and was therefore inadequate to support the immunity.33 Finally, in response to the re-litigation and over-litigation policy grounds, Hammond J commented

29 Ibid, 704 (Lord Hoffman).

30 Unreported, CA (NZ) 8 March 2005.

31 Chamberlains v Lai, Unreported, CA (NZ) 8 March 2005.

32 Ibid, (Hammond J).

33 Ibid.

that excessive litigation was already a problem that was not related to the immunity, and that in any event, the New Zealand legal system was able to manage issues of relitigation, as other comparable jurisdictions had done.34

Soon after Chamberlains v Lai was determined, the decision in D’Orta- Ekenaike was handed down, with the High Court surprising many with their decision to retain the immunity.

iii.  D’orta-ekenaike: wOULd aUStraLia FOLLOw SUit?

When Ryan D’Orta-Ekenaike was charged with raping a female he retained Victoria Legal Aid to defend the charge. Victoria Legal Aid briefed McIvor, a barrister, to appear for D’Orta-Ekenaike at the committal proceedings. The applicant had two meetings with McIvor and an employee of Victoria Legal Aid, where he told them he was not guilty of the charge. Notwithstanding this information, the barrister and solicitor still advised him to plead guilty at his committal hearing, as he would receive a reduced custodial sentence if he pleaded not guilty and was subsequently convicted. Upon following their advice, he was committed for trial where he changed his plea to not guilty. His earlier plea however was entered into evidence and he was convicted and sentenced to three years’ imprisonment. The Court of Appeal of the Supreme Court of Victoria sometime later quashed the applicant’s conviction and ordered a retrial on the ground that the trial judge’s directions in respect of the guilty plea were inadequate.35 In 1998 at the retrial a jury acquitted the applicant of rape. In 2001, the applicant commenced an action for damages in the County Court of Victoria against Victorian Legal Aid, his solicitor, and Ian McIvor, the barrister. He alleged that he had suffered and continues to suffer injury, loss and damage as a result of the failure to warn by his legal advisers. The particulars of injury included loss of liberty, a psychotic illness, loss of income and the costs and expenses of the appeal and retrial.

The Majority Judgment

The majority in D’Orta-Ekenaike concentrated on the following three issues. Firstly, whether or not the immunity should protect both solicitors who are acting as advocates as well as barristers; secondly, whether the scope of the immunity should be reconsidered; and thirdly, whether the decision in Giannarelli should be reconsidered, and if so, what the current justification for either retaining or abolishing the immunity would be. The first to issues are quickly dealt with, the third is the issue to which this article is directed.

34 Ibid.

35 R v D’Orta-Ekenaike [1998] 2 VR 140.

1. To Whom Does the Immunity Apply?

In relation to the first issue the majority in D’Orta-Ekenaike explored the fusion of the legal profession in relation to section 5 of the Legal Profession Practice Act 1891 (Vic) and section 10 of the Legal Profession Practice Act 1915 (Vic). The majority justices found that even though there was legislative intention to fuse the legal profession in Victoria in 1891 this fusion was never entirely accomplished.36 In line with this reasoning, it was found in D’Orta-Ekenaike that the immunity should cover both solicitors and barristers.

2. The Scope of the Immunity:

In reference to whether or not the ‘intimate connection’ test should be extended or reduced, the joint majority in D’Orta-Ekenaike held that there was no sufficient reason to alter the test.37 The immunity was retained to include work done in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court.’38 Interestingly, the joint majority found that the advice to plead guilty at the committal satisfied this intimate connection test as the advice led to a decision, which affected the conduct of the case at the subsequent trial.39

The third issue, the ‘whys’ of advocates immunity, requires much more discussion.

iv. the JUdiciaL prOceSS aS an aSpect

OF gOvernment and FinaLity

The primary policy issue that was used to justify the retention of the immunity in D’Orta-Ekenaike was ‘finality’. The majority held that the community has a vital interest in the final suppression of controversies, as ‘the central and pervading tenet of the judicial system is that controversies, once resolved, are

36 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 97 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

37 Ibid, 113 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

38 Ibid. McHugh J also stated that:

Immunity should extend to any work, which, if the subject of a claim of negligence, would require the impugning of a final decision of a court or the re-litigation of matters already finally determined by a court. On that basis, no distinction should be drawn between the role of the solicitor and a barrister in the context of advising a client regarding the entering of a plea in criminal proceedings. If the immunity were applicable to the barrister and not the solicitor in the present case, it would not serve the public policy purpose of preventing the rehearing of the applicant’s charge.

Ibid, 134.

39 Ibid, 113.

not to be reopened except in a few, narrowly defined, circumstances.’40 It has been suggested that public confidence in the legal system would be undermined if these principles were not adhered to, as re-litigation can undermine the earlier decision and also waste resources.41 In D’Orta-Ekenaike, their Honours also suggested that if allowed, a ‘peculiar type of litigation would arise.’42 This was described as being ‘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’ which would be of a ‘skewed and limited kind,’ as the immunity of other actors in the judicial process (judges and witnesses) would prevent their ‘contribution’ to the outcome being scrutinised.43 Thus, unlike the House of Lords in Arthur Hall, the threat of relitigation was seen by the majority to be a dominant threat to ensuring finality of proceedings, and ultimately, public confidence in the legal system.

Civil and Criminal Convictions

In particular, the majority noted that the finality issue was most pervasive in criminal cases, an issue that also arose in Arthur Hall (and resulted in the House of Lords only rejecting the immunity by a 4-3 majority as far as criminal cases were concerned). The main concerns here were the potential repercussions on a criminal case and conviction if the criminal plaintiff was successful in an action against his or her advocate. This finding of liability in such a case would establish that ‘but for’ the negligence of the barrister the criminal litigant would not be in jail. Obviously, this opens up a whole range of connected issues; should the criminal litigant be acquitted or at least receive early parole? How would the differences in onus and burden of proof be dealt with? Could lawful imprisonment constitute compensable damage?44

Interestingly, these issues were not of importance in the D’Orta-Ekenaike case because D’Orta-Ekenaike had been acquitted of his criminal conviction. The joint majority in D’Orta-Ekenaike however rejected the applicant’s submission that it was enough to show that he would not impugn the final result of the previous litigation.45

40 Ibid, 100-01 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

41 Matthew Groves and Mark Derham, ‘Should Advocate’s Immunity Continue?’ [2004] 28

MelbourneULR 80, 107.

42 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 104 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

43 Ibid.

44 Ibid, 109 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

45 Ibid, 110 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

The Likely Success of an Action Against an Advocate

Further to the distinction between civil and criminal matters, the difficulties of suing an advocate in negligence was discussed by McHugh J in detail, where the difficulties of proving causation in claims against advocates in particular were discussed.46 Justice McHugh considered that the difficulties in determining causation actually provided a reason for maintaining this immunity. One of the concerns that seems to motivate this thinking was that

‘unsuccessful litigants whose principal action was without much substance are those most likely to bring a later, equally unsubstantiated, claim against their representative.’47 The concern about frivolous and vexatious claims can also be seen reflected in recent tort reform as well as many recent High Court judgments.48

In relation to whether or not the litigation (if allowed) in D’Orta-Ekenaike would have been successful, Cane posits that it is at least arguable that D’Orta-Ekenaike would not have been found guilty if he had not originally pleaded guilty.49 In furtherance of this argument Cane suggests that the ‘more immediate cause of D’Orta-Ekenaike’s conviction was the conduct of the judge and jury in the first trial.’50 Therefore, Cane suggests that this rationale is not a sufficient argument to maintain the immunity, as in other professions the ‘risk of being the target of weak claims’ is not a stable justification to maintain any immunity.51 In other words, the solution to the predicament of unmeritorious claims ‘does not involve bolting the door against meritorious plaintiffs.’52

Other Policy Grounds

In proposing finality as the sole justification for retaining the immunity, the majority considered that the policy issues that had been discussed in preceding cases were no longer relevant or persuasive.53 Similar justifications to those outlined in Arthur Hall, as far as the remaining policy grounds apart from finality were concerned, were canvassed. The connection between a barrister’s immunity and an inability to sue the client for professional fees was considered

46 Ibid, 133, 141 (McHugh J).

47 Ibid, 133, 127 (McHugh J).

48 See, e.g., The Legal Profession Act 1987 (NSW) ss 198L, 198N, 198J, 198M and Tame v

New South Wales [2002] HCA 35; (2002) 191 ALR 449.

49 Peter Cane, ‘The New Face of Advocate’s Immunity’ (2005) 13 TortsLJ 93, 96.

50 Ibid.

51 Ibid.

52 Peter Hecrey, ‘Looking over the Advocate’s Shoulder: An Australian View of Rondel v

Worsley’ (1968) 42 AustralianLJ 3, 8.

53 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 98 (Gleeson CJ, Gummow, Hayne, Hayden JJ).

to only be partially relevant, as it could not support the immunity of a solicitor who was acting as an advocate.54 The conflicts of duties an advocate owes to the court and to their client was also considered to be of marginal importance, as the duty to the court is paramount and further, because the immunity cannot support protection from liability that is not based on a duty of care to the client.55 The desirability of preserving the cab rank rule was also dismissed, because, like the remuneration issue, this principle is only relevant to barristers and not solicitors acting as advocates.56 The majority also disregarded the submission that advocates often need to make decisions in court quickly as a justification for the immunity.57 In fact, the joint majority felt that this issue was ‘distracting and irrelevant’, and acknowledged that many others (by which one assumes to be other professionals and workers) also have the same amount of pressure to make decisions quickly.58 Their Honours also noted that the

‘chilling’ effect of the threat of a civil suit was of some importance but could

not constitute a justification for retaining the immunity.59

Ultimately, the retention of the immunity had nothing to do with protecting the participants in the judicial process, but simply ensuring the ‘finality’ of the process itself.

Kirby: The Lone Dissent

In Justice Kirby’s dissenting judgement in D’Orta-Ekenaike, the changing nature of the legal profession and professional liability in general, both here and in overseas jurisdictions, was highlighted as sufficient motivation to rethink the suitability of advocates’ immunity in the contemporary Australian legal system. Kirby J pointed both to the lack of immunity for other professionals, including ‘legal account architects, civil engineers, dental surgeons and specialist physicians and surgeons, anaesthetists, electrical contractors, persons providing financial advice, police officers, builders, pilots, solicitors (in respect of out-of-court advice) and teachers;’60 and in direct response to the concerns regarding finality, the lack of immunity in other jurisdictions, including the United States of America, Canada, the European Union, Singapore, India, Malaysia and England,61 as being a satisfactory basis for the removal of the immunity. Kirby J suggested:

54 Ibid, 99 (Gleeson CJ, Gummow, Hayne, Hayden JJ).

55 Ibid.

56 Ibid.

57 Ibid.

58 Ibid.

59 Ibid, 100 (Gleeson CJ, Gummow, Hayne and Hayden JJ).

60 Ibid, 144 (Kirby J).

61 Ibid, 145 (Kirby J); of course, this now also includes New Zealand in light of the decision in Chamberlains v Lai Unreported, CA (NZ), 8 March 2005.

Such disparity in a matter of legal principle does not necessarily mean that this court is wrong. But it certainly suggests the need for justification by reference to identified errors of so many other courts and legal systems or proof of such local divergencies as warrant Australian law taking its own peculiar direction.62

For Kirby, the majority in D’Orta-Ekenaike63 certainly did not make this justification. The finality argument, the sole policy argument used by the majority to support the retention of the immunity, was not sufficient to

‘warrant’ the High Court’s decision in D’Orta-Ekenaike, and the retention of the immunity in the face of the position in other comparable jurisdictions was difficult to sustain.64

v. prOBLemS with FinaLity aS the SOLe JUStiFicatiOn

FOr advOcateS’ immUnity

As Kirby J notes, comparable legal systems both ‘within, and outside, the common law world operate perfectly well without the immunity.’65 For the majority in D’Orta-Ekenaike though, a number of differences between the Australian legal system and these comparable systems warranted care in comparison between jurisdictions when considering the immunity.66 Richard Ackland, in the Sydney Morning Herald, sarcastically recalled the majority’s dismissal of the fact that other jurisdictions have abolished the immunity:

You’d be in awe at the convolutions the majority performed to cast the House of Lords decision as unworthy of being followed. The House was divided in aspects of the decision. The Poms were influenced by the European Convention on Human Rights and the Human Rights Act which, thank heavens, we don’t have to worry about here because everyone has the protection of the common law and the High Court itself. The legal profession is organised differently in England. We don’t have to follow the House of Lords, and particularly when English jurisprudence is now infected with a lot of foreign human rights stuff.67

62 Ibid, 146 (Kirby J).

63 Ibid.

64 Ibid.

65 Ibid, 169 (Kirby J).

66 Ibid, 144-45.

67 Richard Ackland, ‘Majority ruling gives the minnows little chance’ Sydney Morning Herald,

11 March 2005, 11.

Indeed, to the public, the arguments of the majority in D’Orta-Ekenaike68 in support of the immunity did seem to be along these lines. Their Honours urged that there was a necessity when comparing Australia to other jurisdictions69 to ‘look beyond the bare statement that there is, or is not, an advocates’ immunity.’70 The majority noted for example that there were exceptions to the broad assumption that no immunity exists in either Canada or the United States, as in both these jurisdictions there is protection for prosectors, as well as immunity for judges in the United States.71 Further to this, they argued that regard must be had to the doctrine of collateral estoppel, and also the fact that principles of finality found ‘different expression’ in other jurisdictions.72 The point regarding finality, with respect to the position in the United Kingdom in any case, rested upon the United Kingdom’s adherence to Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act 1998 (UK).73 As the majority points out, the High Court is no longer compelled to follow decisions of the House of Lords, especially where such a decision is based upon judicial and social changes in the United Kingdom which could not be applied to the Australian judicial system.74

Kirby responded to these arguments by noting that it was a ‘mistake’ to suggest that the removal of the immunity in the United Kingdom in Arthur Hall is based on the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act 1998 (UK).75 He points out that the Convention was not a key feature of the judgments of any of their Lordships in Arthur Hall (indeed the case was examined outside of the boundaries of the Convention in any case), and further, that the Human Rights Act 1998 (UK) was not even in force when the decision was made.76

Despite these two factors, Kirby indicates that in any case, Australia is also a party to the International Covenant on Civil and Political Rights, which is underpinned by the same principles that inform the European Convention for the Protection of Human Rights and Fundamental Freedoms.77

68 D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 144-45.

69 As raised by the Applicants and noted in the majority judgment in D’Orta-Ekenaike at 106:

‘ particular, Canada, New Zealand or the several jurisdictions in the United States of


70 Ibid, 107.

71 Ibid.

72 Ibid.

73 Ibid, 105-6.

74 Ibid.

75 Ibid, 169.

76 Ibid.

77 Ibid, 170.

With respect, the arguments concerning differences between jurisdictions as raised by the majority in D’Orta-Ekenaike are feeble. Interestingly, the same issue arose in Giannarelli after the decision in Arthur Hall, where once again a ‘cursory dismissal’ of valid empirical evidence concerning the removal of advocates’ immunity in other jurisdictions took place.78 It appeared in D’Orta- Ekenaike that once again the majority were willing to ignore valid evidence from overseas based upon reservations about cross jurisdictional differences that, when examined with some rigour (as Justice Kirby did), appear to be arguments that are quite weak. Given this fundamental weakness in the arguments proffered by the majority against allowing an inter-jurisdictional comparison, surely regard must be had to the evidence from other comparable jurisdictions about the operation of the relevant judicial systems post- advocates’ immunity.

In D’Orta-Ekenaike, Kirby draws upon evidence from other jurisdictions to illustrate that re-litigation and the ‘fear of floods of litigation’ has not been a concern where there is a lack of finality through the abolition of advocates’ immunity.79 Kirby points out that a flood of litigation ‘brought by discontented litigants against barristers and their instructing solicitors’ has not occurred, for example, in the United States of America, despite being a

‘most litigious country’ where there has never been a blanket immunity for advocates’ generally.80 Nor has it occurred in Canada, where immunity has been removed for some time,81 a point also raised in Arthur Hall. In England, post Arthur Hall, there has not been a flood of re-litigation reported,82 and indeed in Victoria, where the immunity was unavailable between the initial Giannarelli83 hearing and the Victorian Full Court determination, there was

‘no objective evidence of any increase in the length of criminal trials... or evidence of a sudden rise in negligence claims against lawyers.’84

78 The Hon George Hampel and Jonathan Clough, ‘Abolishing the Advocates’ Immunity from

Suit: Reconsidering Giannarelli v Wraith[2000] MelbULawRw 39; (2000) 24 MelbourneULR 1016, 1025.

79 D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 173.

80 Ibid, citing Ferri [1979] USSC 178; 444 US 193 (1979); see also Arthur J S Hall & Co v Simons [2002] 1 AC

615, 721 (per Lord Hope of Craighead).

81 Ibid, citing Garrant v Moskal [1985] 2 WWR 80, 82; cf A Linden, Canadian Tort Law 7th

Ed (2001) 151.

82 Ibid, citing Seneviratne, ‘The rise and fall of advocates’ immunity’ (2001) Legal Studies

644, 662.

83 (1988) 165 CLR 543.

84 D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 173 (Kirby J) citing Law Reform Commission of Victoria, Access to the law: Accountability of the legal profession Report No 48 (1992) 35-36 [78].

Whilst some commentators have pointed to the range of malpractice suits in general in the United States of America (which currently account for US $4 billion per year) noting that it is only a matter of time before ‘fully informed consumers target the legal profession and legal education,’85 there is no evidence from comparable jurisdictions (and the USA in particular) that there has been a surge in re-litigation, nor a compromise in the finality of decisions, as a direct result of the removal of advocates immunity. As Kirby J notes, the existence of special rules and provisions in these jurisdictions has mitigated a surge in relitigation as a result of the removal of the immunity, and a similar range of circumstances are in fact present in Australia:

The general unavailability of legal aid in Australia to support negligence claims against lawyers; the availability of summary relief against vexatious claims; and the rules against abuse of process by relitigation (not to mention the empathy and understanding of judges for co-professionals in unmeritorious cases) makes it completely unnecessary to retain an absolute immunity of the broad, even growing, ambit propounded in this case.86

Kirby quotes from Lord Hoffman in Arthur Hall who described the immunity as ‘burning down the house to roast the pig.’87 Essentially, Lord Hoffman suggests that use of such a ‘broad-spectrum’ remedy as advocates’ immunity, which does come with side effects (especially as far as public perception of the profession is concerned), is unnecessary when a more ‘specific’ remedy can

‘handle the problem equally well.’88 Other commentators have also evaluated the use of such sanctions which may be used as more specific remedies in line with Lord Hoffman’s suggestion above. In particular, Hampel and Clough note that since 1990 United Kingdom courts have been able to make wasted costs orders against practitioners where there has been negligence on the part of the practitioner.89 Lord Hoffman, in Arthur Hall, noted that the use of such orders there had not ‘changed the standards of advocacy for the worse.’90 Groves and Derham note that similar remedies are available in all jurisdictions in Australia, and argue that, whilst not without troubles, the wasted costs jurisdiction provides a remedy that has many benefits over a

85 Anthony Papamatheos, ‘Abolition of the Advocates’ Immunity: Stealing a Knight’s Shield?’ [2004] SOLR 5, 8, citing Manuel R Ramos, ‘Legal Law School Malpractice: Confessions of a Lawyer’s Lawyer and Law Professor’ (1996) OhioStLJ 863.

86 D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 173 (Kirby J).

87 Ibid, quoting Lord Hoffman in Arthur J S Hall & Co v Simons [2002] 1 AC 615, 703.

88 Ibid.

89 Courts and Legal Services Act 1990 (UK) c 41, s 4.

90 Arthur J S Hall & Co v Simons [2000] UKHL 38; [2000] 3 All ER 673, 695.

separate action in negligence.91 Further, the existence of doctrines such as res judicata and issue estoppel also prevent the jurisdiction of the court from being attacked.92

It would appear that fears concerning the finality of litigation expressed by the majority in D’Orta-Ekenaike are ignorant of competing evidence from overseas. True, there are differences between the systems, including, as Groves and Derham note, differences in procedural matters,93 but there is nothing to suggest that the doctrines of issue estoppel and res judicata would be insufficient to strike matters out that were seen as an abuse of process, nor that the existence of supplementary remedies would be inadequate in providing aggrieved litigants with a resolution, in the absence of an immunity. Whilst Australia should not be tempted to conform simply because other jurisdictions have abolished the immunity, the evidence from other jurisdictions, despite being limited and somewhat pre-emptive, does provide some compelling reasons as to why the immunity should be abolished as it has been elsewhere. As Justice Kirby suggested, taking a different approach to other jurisdictions does not mean that the High Court is wrong – but it does seem a bizarre position to take in light of competing and convincing evidence from elsewhere.94

In particular, other comparable jurisdictions have abolished the immunity and have not experienced the problems forecast by the majority in D’Orta- Ekenaike - there has not been a surge in re-litigation, there has not been an undermining of the finality of decisions, and most importantly, there are still a range of remedies available through other supplementary means to assuage litigants who have generally been the victim of incompetent counsel. This has ensured above all that public confidence in the legal system has been restored.

  1. can ‘FinaLity’ enSUre pUBLic cOnFidence in the LegaL SyStem?

In the previous section, the majority’s dismissal of competing evidence from other jurisdictions concerning the removal of advocates’ immunity was canvassed, where the inherent weakness in the finality argument was highlighted – that is, that it simply has not been an issue in other jurisdictions where no immunity exists. The majority noted that the preservation of finality ensures above all that public confidence in the legal system will be maintained,

91 Groves and Derham, supra n 41 at 113.

92 Arthur J S Hall & Co v Simons [2000] UKHL 38; [2000] 3 All ER 673, 681 (Lord Steyn).

93 Groves and Derham, supra n 41 at 107. Groves and Derham do not discuss the implications of the Civil Procedure (Amendment) Rules 1999 (UK), but note that under this legislation collateral attacks can be dismissed at an early stage in proceedings.

94 [2005] HCA 12; (2005) 214 ALR 92, 146 (Kirby J).

but it seems in light of the D’Orta-Ekenaike decision that the opposite has in fact occurred – the public have perceived this decision as peculiar in light of the fact that other comparable jurisdictions have removed the immunity; but most notably, they have construed the decision as a case of lawyers receiving preferential treatment under negligence law as distinct from other professionals.95 The disdain that other professionals and the media had for the majority judgment in D’Orta-Ekenaike was broadcast widely, with newspaper headlines dripping in sarcasm and reminiscent of lawyer jokes published in the wake of the decision.

Many arguments have been offered by various commentaries to justify the unique position of advocates compared to other professionals. For example, Ian Harrison SC, President of the New South Wales Bar Association, drew comparisons between medical practitioners and advocates when he stated that if a doctor was to be sued as a result of alleged negligence during surgery he (or she) would be able to call his (or her) colleagues (other doctors and nurses) as witnesses whereas a barrister who is sued for alleged in-court negligence would be unable to call as a witness the judge that was hearing the case or the members of the jury.96 This point is strongly linked to the issue that judges and members of juries have immunity from suit in relation to the relevant court proceedings. This was an issue that the joint majority and McHugh in particular emphasised in D’Orta-Ekenaike.97

Another point raised to defend the retention of the immunity for advocates is that a number of other professionals also enjoy immunity from suit in some situations. McHugh J for example noted in D’Orta-Ekenaike that professionals, such as auditors, who don’t owe a general duty of care to their investors and journalists, do not owe a legally enforceable duty to take reasonable care not to injure a person’s reputation or financial position by publishing careless

95 Justice Kirby forecast this reaction when he stated that:

[In] individual cases, the professional person concerned has won or lost. But liability has been decided by the application of the general principles of the law of negligence as elaborated at the time of the decision. None of the defendants in any of the foregoing cases claimed, still less received, the benefit of an absolute immunity from liability. So why are the lawyers in this case entitled to be treated in such a special, protective and unequal way? Is this truly the law of Australia, applicable to the case? If so, what is the justification? D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 144-5 (Kirby J).

96 ABC Radio National, ‘Suing Your Legal Representatives’, The Law Report, 22 March

2005, < 117.htm> at 9 June 2005.

97 It has been suggested that neither judges (Sirros v Moore [1975] QB 118), witnesses (Cabassi v Villa [1940] HCA 41; (1940) 64 CLR 130) nor counsel (Munster v Lamb [1883] UKLawRpKQB 106; (1883) 11 QBD 588) can be sued for false and defamatory statements made maliciously in the course of judicial proceedings. A witness’s immunity also extends to out of court conduct that is intimately connected with the giving of evidence in court (Cabassi v Villa [1940] HCA 41; (1940) 64 CLR 130).

statements, unless it is defamatory.98 Similarly, McHugh J also contends that medical practitioners and social workers employed by the state to examine children for evidence of sexual abuse owe no duty of care to persons suspected of being guilty of the sexual abuse.99

Finally, in protesting that the role of the advocate in a highly pressured courtroom environment is different to the role of surgeons and others who are placed in demanding and stressful workplace situations,100 Groves and Derham argue that:

A surgeon uses a scalpel and, in doing so, performs the most important aspect of surgery. Whether this function is described as responsibility, authority or power, it is the very essence of the medical procedure. By contrast, an advocate retains no such responsibility. In any judicial proceeding, the equivalent power to administer justice is in the hands of the judge, sometimes with the assistance of a jury. While an advocate may provide submissions or examine and cross-examine witnesses, he or she will never hold the responsibility, authority or power to determine the proceeding before the court. This role remains the province of the judge and jury. The scalpel is never passed to the advocate.101

In other words, the advocate never has complete control over the court proceedings, unlike a surgeon in surgery.

Each of these arguments, whilst they emerge as somewhat compelling, are still no competition for the public perception that advocates are receiving preferential treatment in light of the fact that these differences were not seen as salient enough to retain the immunity in other jurisdictions. No suggestion has been made that these issues pertain specifically to advocates in Australia,102 and indeed, in cases such as Arthur Hall, these points of difference between advocates and other professionals were disregarded as irrelevant justifications for retaining the immunity.103 Furthermore, they were not relied upon in D’Orta-Ekenaike to justify the immunity, hence cementing the ideal that the immunity is not really there to protect the actors in the process but to ensure the definiteness of the process itself.

98 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 116 (McHugh J). See also

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241.

99 Ibid 117 (McHugh J). See Sullivan v Moody (2001) 207 CLR 562.

100 See, e.g., ABC Radio National, ‘Suing Your Legal Representatives’, supra n 96, where the Chairman of the Medico-legal section of the Royal Australasian College of Surgeons, Dr Tony Buzzard, was ‘unsympathetic’ to the courts reasoning, and suggested that surgeons are placed in just as stressful environments: ‘What about someone going into an operating theatre at 2am, dragged out of bed for a ruptured aorta?’

101 Groves & Derham, supra n 41 at 123.

102 See supra n 95.

103 Arthur J S Hall & Co v Simons [2000] UKHL 38; [2000] 3 All ER 673, 690-1 (per Lord Hoffman).

vii. cOncLUSiOn

Advocates’ immunity is often perceived by the media and commentators as

‘an anachronism that is out of step with modern tort law’, therefore, it is most important that sufficient reasons are advanced for retaining the immunity.104 The primary justification that was given for maintaining the immunity in D’Orta- Ekenaike was the premise that it is a ‘central and pervading tenet’ of the judicial system that finality of cases, once litigated, should remain unchanged.105 This paper has argued that whilst the majority in D’Orta-Ekenaike do not cling to antiquated policy vestiges given in previous judgments, the finality justification does not strike out as compelling in its own right.

One of the main justifications that the majority gave for relying on the finality argument was that ‘finality’ of decisions needs to be preserved so as to uphold public confidence in the legal system. It is clear however that the upholding of the immunity based on the finality consideration has had the contrary effect and has actually undermined the public’s perception of the administration of justice. This was clearly portrayed in the media and from statements that were generated from other professionals soon after the decision was handed down. Therefore, it is not the preservation of finality that will see such public confidence restored, but the ability for people to see openness and accountability demonstrated through placing lawyers on an even playing field and removing any perception that there is a system of lawyers looking after their own, or that lawyers in Australia are treated differently to other comparable common law countries. In fact, evidence from other jurisdictions has shown that the finality of decisions and the administration of justice have not been undermined without the immunity, and further, that there has not been a flood of re-litigation or a destruction of public confidence in the legal system, as feared by the majority in D’Orta-Ekenaike.

A remark from Seneviratne concerning the legal process post-Arthur Hall in the United Kingdom, perhaps best sums up the benefit of the removal of the immunity from all sides:

The decision does not appear to have caused any great problems for the legal profession. Indeed, the reaction of some in the profession is that it is to be welcomed, if it helps restore public confidence in the openness and accountability of the profession.106

104 Groves & Derham, supra n 41 at 82.

105 D’Orta-Ekenaike v Victorian Legal Aid and Another [2005] HCA 12; (2005) 214 ALR 92. This statement does not refer to appeal processes.

106 Seneviratne, ‘The rise and fall of advocates’ immunity’ (2001) Legal Studies 644, 662, as cited in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, 173 (Kirby J).

However, continued retention of the immunity may well only serve to entrench attitudes such as this in the public psyche:

But note how the stars of the Bar, most adept at playing the justice game on behalf of others, skilfully avoid having to play it for themselves. They cling to their immunity from actions for negligence – an unjustified privilege which protects incompetents from being sued.107

107 Robertson, G, The Justice Game (1999) 376.

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