A new advocates’ immunity case

On the 6th of last month, Justice Hislop of the New South Wales Supreme Court found a professional negligence claim against a solicitor to be defeated by the defence of advocates’ immunity in Gattellaro v Spencer [2010] NSWSC 1122.  Nothing particularly exciting about the decision, but I did learn a new word: ‘cerebration’.  I looked at it and my ‘that’s not a word’ alarm began to sound.  But it is a word, meaning reasoning, thinking. His Honour summarised the law relating to advocates’ immunity as follows:

‘Advocate’s immunity – general principles

109 The principles as to an advocate’s immunity may be briefly stated as follows:

(a) An advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court – Giannarelli v Wraith [1988] HCA 52; (1987-1988) 165 CLR 543; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [85].

(b) The same immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister – Giannarelli at p 559, D’Orta at [89]-[91].

(c) The immunity extends to work done out of court which leads to a decision affecting the conduct of the case in court. The protection extends to work so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way that case is to be conducted when it comes to a hearing – Giannarelli at p 560, D’Orta at [86].

(d) The criterion adopted in Giannarelli accords with the purpose of the immunity. It describes the acts or omissions to which immunity attaches by reference to the conduct of the case. And it is the conduct of the case that generates the result which should not be impugned – D’Orta at [87].

(e) In Giannarelli at 559 Mason CJ said that to limit the immunity so that it ended at the court room door so that the protection does not extend to preparatory activities, such as the drawing and settling of pleadings and the giving of advice on evidence, would be artificial in the extreme.

(f) In Keefe v Marks (1989) 16 NSWLR 713 at 718 the Court of Appeal, applying Giannarelli, held that the common law immunity of barristers from liability for negligence extended to out of court work intimately connected with or ancillary to the conduct of a case in court. Such out of court work for a barrister briefed to appear at a hearing would include:

“…such matters as interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended.”

(g) In Biggar v McLeod [1978] 2 NZLR 9 the New Zealand Court of Appeal held the settlement of an action during its progress in court can be regarded as work related to the conduct of litigation. [Subsequent authority – Lai v Chamberlains [2005] 3 NZLR 291 concluded advocates’ immunity was no longer part of the law of New Zealand.] Biggar was referred to, with apparent approval, by McHugh J in D’Orta at [154]-[156].’