Tribunal willing to find immunity in pre-proceedings conduct

Mathiasz’s Case [2006] VCAT 416

Mr Howell said a solicitor might be immune in respect of pre-proceedings conduct, but not in this case, the facts of which did not satisfy the intimately connected test.The applicant claimed she was misled by the acts and omissions of her solicitors in relation to terms of settlement at a pre-proceedings mediation under s. 86 of the Retail Leases Act, 2003 which was a prerequisite to commencement of proceedings. Her solicitors had attended with counsel (not a party to the VCAT proceedings). The solicitors’ advocates’ immunity defence failed. Mr Howell said:

“There is no passage in Giannarelli … or in D’Orta-Ekenaike … which indicates that a legal practitioner giving or not giving advice in relation to a mediation, in a dispute that might or might not result in the issue of proceedings in a court or tribunal, is entitled to immunity from suit in respect of the advice or lack of advice. The test must remain whether there was an intimate connection between the advice, or lack of advice, and the way in which proceedings might be conducted if … issued at some time in the future. … I am not satisfied that such a connection existed at the time of the mediation.”

The solicitors won on another preliminary point, so that the discussion of the immunity was a matter of obiter dicta.

Dean Guidolin was for the solicitors, Alan Hebb for the Tribunal

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