August 2015 – The Australian Professional Liability Blog

I expressed my disgust in this post that the CIA set up secret dungeons in, for example, the outskirts of Bangkok, and then tortured people to death in joint ventures with dictators, lied about it, liaised with Hollywood in the making of a propaganda movie suggesting (falsely) that Bin Laden’s extra-judicial execution was possible only because of intelligence tortured out of people, and then determinedly undermined the US Senate’s Select Committee on Intelligence investigation, the great majority of whose report remains censored.

There was an excellent ‘4 Corners’ last week about America’s torture programme, which all lawyers in Australia should watch (it’s available here for a limited time). It features extensive interviews with the CIA’s lawyer John Rizzo, who travelled to several of these illegal dungeons at the ‘black sites’ and reassured CIA operatives that the torture they were engaged in was perfectly legal. If there is a question which it should be a cinch for any lawyer to answer otherwise than unequivocally negatively, it is ‘Is waterboarding torture?’ (The late Christopher Hitchens’s brilliant ‘Vanity Fair’ essay on the topic is here. He tried it. But, as he pointed out in this television interview, the US already had a position on the question, having several times sought the death penalty for the waterboarding of American troops). It also discloses the enormous amounts of money paid to two psychologists who shambolically masterminded the torture (Shame!). One also gets to see and hear the Senate Committee’s Dianne Feinstein, the Democrat and former Mayor of San Francisco (pictured) who was at the forefront of her Committee’s dogedness in uncovering the truth about the CIA’s torture, its incompetence, and its uselesness. I was so pleased to hear that, like me, she walked out of Zero Dark Thirty during its opening torture scenes.

Now an apparently thoroughly respectable Australian named John Nicholls who used to work in the concentration camp up on Nauru has given evidence to an Australian Senate enquiry into abuses on Nauru that Wilson Security Guards employed by the government tortured refugees by waterboarding them. Continue reading “Wilson Security Guard says Wilson Security was waterboarding refugees on Nauru”

The plurality judgment in the last decision of the High Court squarely about the advocates’ immunity was written by Chief Justice Gleeson and Justices Gummow, Hayne and Heydon JJ. They have now retired from the Court. As have the other judges who constituted the Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, Justices McHugh, Kirby and Callinan. Now, a Court constituted by a selection of the current justices (Chief Justice French and Justices Kiefel, Bell, Gageler, Keane, Nettle and Gordon) will hear an appeal from the New South Wales Court of Appeal’s decision in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 (trial judge’s decision here, and special leave application transcript here: the application was heard by Justices Bell, Gageler and Gordon, and the appellant’s counsel was R. D. Newell), and the appeal seems set to be heard in November. Lawyers allegedly negligently settled litigation, were sued for damages, and successfully invoked advocates’ immunity.

I have been thinking about these questions for a long time and many times as a lawyer representing solicitors and barristers, called on the immunity successfully. I published the concisely titled ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ in 2002 at 10 Torts Law Journal 167 and would be happy to provide a copy upon request. I was also in the High Court for argument of D’Orta-Ekenaike’s Case as one of the barrister respondent’s instructing solicitors. I might even pop up to Canberra to watch the argument in this latest case.

It was third time lucky for a leave application in this kind of case, after the Court declined special leave in Young v Hones [2015] HCASL 73 (6 May 2015, Bell and Gageler JJ) and Nikolidis v Satouris [2015] HCASL 117 (4 August 2015, Nettle and Gordon JJ (‘Given the procedural history of those initial proceedings, including that the applicants agreed to settle those proceedings, the present case does not provide an appropriate vehicle for reconsidering [the immunity]’).

In the Court of Appeal, Chief Justice Bathurst, with whom Justices of Appeal Meagher and Ward agreed, reversed the decision of Harrison J. The trial judge was quite frank: he said in a cri de cœur which met with little sympathy on appeal:

‘Notwithstanding all of the above, there remain at least two related matters that in my opinion are particularly troubling in this case, and which directly intersect with the way in which I am able to dispose of this application. The first matter is the apparent or potential strength of the plaintiffs’ allegations that the defendants have been negligent. As I have already commented, the plaintiffs would have been substantially better off if they had simply not defended the proceedings. The predicament that the judgment created for them is difficult to explain but even more difficult to understand. It is also difficult not to have a sense of unease about the possibility that an egregious error may go without the prospect of a remedy.’

Even if the immunity is not abolished, the decision has the potential to radically re-write the immunity landscape. The other thing it will do is promote discussion of the immunity, see good people marshalling the increasingly excellent arguments in favour of its abolition, and provide the possibility (again) for legislative amendment or abolition.

What has happened since D’Orta-Ekenaike’s Case? My (admittedly somewhat) Victorian-centric thinking suggests the following: Continue reading “All-new High Court to hear advocates’ immunity appeal”