Advocates’ immunity: at once more powerful and narrower than most yet understand

Advocates’ immunity was, until recently, more powerful than many lawyers were aware. Since the 1 July 2015 introduction of the Legal Profession Uniform Law and the High Court’s May 2016 decision in Attwells v Jackson Lallic Lawyers Pty Limited,[1] however, it may be narrower than many realise. And perhaps not everyone is aware that the immunity these days is very likely peculiar to Australia; it is certainly not a feature of English, American, Canadian, Continental, Indian, South African or New Zealand law.[2] Continue reading “Advocates’ immunity: at once more powerful and narrower than most yet understand”

Judge puts solicitors’ negligence case on ice pending outcome of High Court challenge to advocates’ immunity

In Cairncross v Anderson [2016] NSWSC 258, Justice Button was asked to summarily dismiss a negligence claim against a solicitor on the basis that it was doomed to fail by virtue of the solicitors having taken the defence of advocates’ immunity.  The negligence is said to have arisen in the course of the Great Southern proceedings in the Supreme Court of Victoria.   In the course of the decision which the Court made yesterday to put the strike-out motion on ice, part-heard pending the High Court’s judgment, the judge had to assess the likelihood of the law changing.  This is what he said:

  1. First, a reading of the transcript of the special leave hearing establishes that (to use a phrase that I used in discussion with the parties at the hearing) there is a “reasonable circumstantial case” that the High Court will undertake a “root and branch” reconsideration of the immunity.
  2. Secondly, the parties respectfully predicted that the hearing of the appeal in the High Court would take place in March 2016, and that one might expect a judgment some months after that. Indeed, as at today the hearing in that Court has concluded, and one may respectfully expect a judgment shortly.
  3. In other words, I think it quite possible that the fundamental legal principles that underpinned the motion placed before me could be subject of significant revision by the ultimate court of this nation within three months or so, and within six months of the hearing of the motion.

I certainly hope that the immunity is abolished or greatly reduced in scope.  I am sick of charging people with good cases against litigation lawyers money to tell them that they should not sue, or that if they choose to sue there is a risk that their claim will be struck out with costs.

Just the other day, the Supreme Court of Victoria ruled that a solicitor who failed to tell his client the trial date, failed to prepare any evidence or arguments, failed to brief counsel to appear, and failed to turn up, so that the case proceeded undefended, unbeknown to the client, and the client lost catastrophically, was protected by the immunity in respect of that conduct.  The immunity has been held to extend to intentional torts, fraudulent conduct, and a failure to tell a client about a settlement offer which went unaccepted and turned out to be a lot better than the result obtained at trial.

All-new High Court to hear advocates’ immunity appeal

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”

Solis who fail to tell client about settlement offer immune from suit

Kendirjian v Lepore [2014] NSWDC 66 is only a decision of the District Court of NSW, but it purports to apply law binding on the judge, namely that identified in the NSW Court of Appeal’s decision in Donnellan v Woodland [2012] NSWCA 433.

The following facts were presumed to be true for the purposes of a summary judgment application brought by the defendant solicitor exclusively by reference to advocates’ immunity.  A man was advised his claim for personal injury was worth about $1.2 million.  Personal injury proceedings were commenced. The defendant offered to settle for $600,000 plus costs.  The man’s solicitors failed to advise him of the offer and rejected it.  When the man obtained about $310,000 plus costs at trial, he sued for the difference between his position after the trial and an appeal and the position he would have been in had he been informed of the offer, which he said he would have accepted.

The Court summarily dismissed the suit.  This passage should be carefully considered, unfortunately, by any plaintiff considering suing a lawyer for negligence in litigation, especially when the law of NSW applies, and especially when it is alleged that but for the negligence, a different final or interlocutory result would have obtained: Continue reading “Solis who fail to tell client about settlement offer immune from suit”

Advocates’ immunity summarily defeats claim alleging negligent advice to settle

I once spent a long time writing an article called ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ which was published in the Torts Law Journal when it was edited by Professor Luntz ((2002) 10 TLJ 167), and I acted for the Victorian Bar in relation to D’Orta-Ekenaike v Victoria Legal Aid and instructed in the hearing of that case in the High Court.  So a case like Stillman v Rushbourne [2014] NSWSC 730 is fairly well up my alley.  Three key areas of uncertainty about the scope of and operation of the immunity post-D’Orta have been:

1.  Whether advice to settle which results in settlement can be said to affect the conduct of the cause and so be within the immunity;

2. Whether the immunity extends to intentional wrongs; and

3. When it is appropriate to grant summary judgment by reference to the immunity.

Relatively recently, those issues have become relatively authoritatively resolved in favour of lawyers.  In Stillman, Davies J summarily dismissed a claim against solicitors that they negligently advised settlement and intentionally and wrongfully coerced the plaintiff into settling.  The various authorities on these questions are usefully rehearsed and consolidated by his Honour, making this judgment a useful one-stop shop on these issues.

In relation to allegations of intentional wrongdoing, see also Young v Hones (No.2) [2013] NSWSC 1429.  As to the desirability of dealing with an advocates’ immunity defence at an early stage, including in a summary judgment application, see also Donnellan v Woodland [2012] NSWCA 433, a decision of a bench of five.

Prompt extinguishment of claims met by advocates’ immunity; walk-away offers by defendants entitled to immunity

Young v Hones (No 3) [2014] NSWSC 499 is a decision about the costs of a lawyers’ negligence claim which was defeated by advocates’ immunity.  It and the (No 2) decision are interesting because:

1.  The Court determined the immunity point against the plaintiff in the trial of a preliminary question, having previously dismissed the lawyers’ summary judgment application;

2.  The Court suggested that the immunity applies in respect of allegations of conduct otherwise than in good faith despite suggestions to the contrary in pre-D’Orta-Ekenaike’s Case authorities; and

3.  The Court was inclined to the view that a well-drawn walk-away Calderbank offer would have been unreasonably rejected by the plaintiff and attracted costs penalties had it only been open a little longer than the 7 days it was expressed to be open for.

Continue reading “Prompt extinguishment of claims met by advocates’ immunity; walk-away offers by defendants entitled to immunity”

More Corby saga lawyer shenanigans

I have been saying for a while now that Schapelle Corby’s saga is a case study in the importance of choosing your legal team wisely. Moss v Eagleston [2014] NSWSC 6 provides further analysis of the performance of a lawyer selected by another of the players in the saga. That selection was a selection made by a man without the resources to pay for orthodox representation and who obtained rather unorthodox representation.

The decision examines the scope of a duty of care, including by reference to an argument that pro bono work requires a lower duty of care, and the appropriate response to late assertions of the defence of advocates’ immunity, and demonstrates how the courts will deal with a claim of loss suffered as a result of a failure to provide promised legal representation at a trial.

William Moss, also known as William Miller, is a former criminal.  You can see him and hear him in this video. He says that he was supposed to pick up a package in return for a substantial sum and that shortly after Schapelle Corby’s arrest, he was told not to bother because it had ended up in Bali.  He believed that these facts strongly support Ms Corby’s protestations of innocence.  The Daily Telegraph published the claims.  He says they ratted on a promise to pay him $250,000, or at least that they conned him into divulging his claims to them in the expectation of receiving that sum.  They then published articles which were defamatory of him with the imputations that he was a small time shyster lying to get cash. So he approached lawyers.  Quite a few of them.  Finally he found one who would act for him: the firm Reimer William Winterson of Penrith.  They sent a letter of demand for damages for breach of an oral agreement.  The publishers denied the agreement.  The firm ceased to act. Continue reading “More Corby saga lawyer shenanigans”

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:

Continue reading “A new advocates’ immunity case”

Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process

Update, 16 August 2010: Justice Emerton’s decision dismissing the appeal is at [2010] VSC 351.

Original post: In Walsh v Croucher [2010] VSC 296, a convicted fraudster who was, at least in about the year 2000, a bald-faced, opportunistic, calculating and manipulative liar (see R v Walsh [2002] VSCA 98 and R v Walsh [2000] VSC 114), sued his appeal counsel for negligence, breach of fiduciary duties, and misleading and deceptive conduct.  But for the negligence, the claim contended, his appeal would have succeeded.  The Supreme Court let the proceedings roll along for two and a half years before Associate Justice Mukhtar permanently stayed them as an abuse of process.  Mr Walsh’s attempts, in the very last days in Victoria of the grand jury, to convene one, were not enough to avoid the termination of his negligence claim.

The proceedings were an abuse of process in that they sought impermissibly to attack collaterally the decisions of the jury and of the Court of Appeal that he was guilty of the frauds he was convicted of.  It was impermissible for him now to contend, as a foundation of his cause of action against the barrister, and not having appealed the decision of the Court of Appeal, that he was not guilty, because to do so is against public policy.  I considered the law of collateral attack abuse of process in its applications to solicitor’s negligence claims in ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’, (2002) 10 Torts Law Journal, 167.  Let me know if you would like a copy by email.  Associate Justice Mukhtar’s explanation is concise and worth setting out in full: Continue reading “Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process”

Misfeasance in public office claim against solicitor survives immunity strike out application

The latest advocates’ immunity case is Noori v Leerdam [2008] NSWSC 515. The defendant solicitor was said to have been guilty of misfeasance in public office constituted by work he did for Phillip Ruddock as Immigration Minister in relation to merits review litigation about the plaintiff, an Afghan refugee applicant who rotted in an immigration jail for 6 years despite having committed no crime in Australia. The solicitor sought summary judgment on the basis of advocates’ immunity. The Court declined to give it to him, saying the question of whether immunity could be claimed against allegations of misfeasance in public office or collateral abuse of process was insufficiently obvious to found a summary judgment, and would have to be fully argued at trial.  The relevant part of the judgment says: Continue reading “Misfeasance in public office claim against solicitor survives immunity strike out application”

NSW Court of Appeal on advocates’ immunity for out of court work

The NSW Court of Appeal dismissed an appeal from a decision finding that a solicitor was not immune from a negligence suit based on a failure to prepare evidence promptly, though its comments in relation to immunity were obiter dicta [102]. Although the evidence did get adduced after a change of solicitors and before the end of the trial, so that the solicitor’s client succeeded, the client was penalised when it came to costs for adducing the critical evidence at the last moment, contrary to case management pre-trial directions. Not only did the succeesful client not get an order that the other side repay its costs, but it was ordered to pay the other side’s costs. The decision is Walton v Efato Pty Ltd [2008] NSWCA 86. Another aspect of the decision is noted at this sister post. Justices of Appeal Beazley and Giles agreed with the lead judgment of Justice of Appeal Tobias.

What happened was that a creditor of a company served a statutory demand on a company. The company’s solicitor did not file and serve within the necessary 21 days the application to set it aside on the basis of a genuine dispute as to the existence of the debt. He did so out of time. So by operation of the Corporations Law, 2001, the company was presumed to be insolvent, and the courts had no power to extend the time retrospectively. Continue reading “NSW Court of Appeal on advocates’ immunity for out of court work”

Cases, cases

Update, 19 February 2008: Fellow Melbourne law blogger Legal Eagle has kindly written a case note on Equuscorp v Wilmoth Field Warne.

Update, 21 December 2007: Another two advocates’ immunity cases:

1. Symonds v Vass [2007] NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in The Australian on 30 November 2007 titled ‘Let’s Dump Advocates’ Immunity’.

2. Mallik v McGeown [2007] NSWSC 1414.

Update, 19 December 2007: Fellow Melbourne law blogger Legal Eagle has done an excellent case note on the first case referred to below, saving me the trouble.

Original post: The Supreme Court and Court of Appeal is dropping cases on this blog like no tomorrow. I can’t keep up, so I will just bring them to your attention for the time being:

1. Re Legal Practice Act 2004; re OG, a lawyer [2007] VSC 520, in which the Court of Appeal today struck off the roll a barrister whose disclosure to the Board of Examiners about an allegation at university that he cheated on an assignment was found to be a lie. Legal Eagle provided a long note of the case here. In other news, a famous American judge, Richard Posner, wrote a book on plagiarism. He blogs too. Update: 29 January 2008: And compare this American case (In the Matter of Willie Jay White, Supreme Court of Georgia) about an applicant for admission to practice which was denied because his explanation for curious similarities between his work and another’s at law school was not believed.

2. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280, a case about whether estoppel by convention could operate against the prima facie disentitlement in a solicitor to recover fees under a void costs agreement, and about where exactly the dividing line is between a void and a good costs agreement. It is the latest in a long saga.

3. Coadys (a firm) v Getzler [2007] VSCA 281, a case covering much the same territory as the Equuscorp Case. This case and the previous one will be very important for the interpretation of the Legal Profession Act, 2004‘s costs provisions.

4. Francis v Bunnett [2007] VSC 527, in which Justice Lasry dismissed an application for summary judgment by reference to advocates’ immunity in a classic regretted settlement case. That is, his Honour was not persuaded of the hopelessness of the client’s argument that where there has been no adjudication after a trial, there is no finality of the kind protected by the immunity which is worthy of protection. It is notable that a number of cases which have gone the other way are not mentioned in the judgment.

5. MM&R Pty Ltd v Grills [2007] VSC 528, a decision of Justice Cavenough yesterday about the availability of advocates’ immunity as a defence to a suit alleging simple delay, and where there has been no adjudicated decision of a court worthy of protection. His Honour recognised that the immunity applied in such circumstances.

It will be interesting to read the two advocates’ immunity decisions more carefully, and tease out to what extent they are consistent with one another.

Judge says finality has overtaken intimate connection as immunity touchstone

A New South Wales District Court judge has handed down an important decision on advocates’ immunity, which is under appeal. The case is Fowler v La Fontaine [2007] NSWDC 207. It is a case which explores what the test for the immunity really is now that the High Court has said ‘it’s all about finality’. The decision on appeal will be important especially in those cases where there is no adjudicated outcome after a contested hearing, such as where there is a discontinuance, or a default judgment, or a striking out consequent upon terms of settlement. The facts, and the relevant bit of the judgment, are set out below. Continue reading “Judge says finality has overtaken intimate connection as immunity touchstone”

2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.

It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.

Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.

Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.

Continue reading “2nd edition of Professional Liability in Australia reviewed”

NSW Supreme Court says solicitor immune from suit for out of court omissions

Update, 12 March 2009: The advocates’ immunity part of the trial judge’s reasons did not really survive on appeal: Coshott v Barry [2009] NSWCA 34. Quite where that leaves the authority of Keefe v Marks (1989) 16 NSWLR 713, a decision of Chief Justice Gleeson, remains to be worked out. Justice of Appeal Ipp with whom and Justices of Appeal Beazley and Campbell said, remarkably pithily:

Advocate’s immunity
61 James J also rejected the Citibank Claim “by reason of advocate’s immunity”. His Honour said, “[d]etermining what claims for relief should be included in the pleading was work done out of court which led to a decision effecting the conduct of the case in court.”

62 In my opinion, this finding by his Honour went too far. Mr Coshott’s case was that Mr Barry breached his duty to advise virtually from the inception of the retainer. Such an alleged failure would be too far removed from the actual conduct of the trial to be covered by the doctrine of advocate’s immunity. I do not think that, when the retainer commenced, a failure to advise as alleged could be regarded, properly, as leading to a decision affecting the conduct of the case in court (Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560 per Mason CJ). The period from the time the retainer commenced to the trial itself was too long for the requisite connection to the conduct of the case in court to be established.’


’76 Having regard to the degree of control exercised by Mr Coshott over the proceedings, and to the fact that senior counsel did not query the admissibility of Mr Davis’s report, I consider that James J was correct in finding that, had Mr Barry advised that Mr Davis’s evidence was not admissible, Mr Coshott would have not accepted that advice. For the reasons given in connection with the Citibank Claim I do not consider that his Honour ignored s 5D of the Civil Liability Act when making this finding.

77 The question whether the defence of advocate’s immunity applies to the PSO claim is open to question. Mr Coshott contended that Mr Barry breached his duty in regard to the admissibility of Mr Davis’s evidence as from the time Mr Davis provided his report; hence, the breach occurred too long before the trial to be regarded as involving a decision affecting the conduct of the case in court. There are difficulties in determining this question, as it is not clear when Mr Barry was first duty-bound to consider the admissibility of the report. It may well be that James J correctly decided that Mr Barry’s conduct in regard to Mr Davis’s report involved “[w]ork done in deciding what witnesses should be called and what evidence should be sought to be adduced from them” (as his Honour put it). In view of the other conclusions to which I have come in regard to the PSO Claim, it is not necessary to decide this issue.’

Original post: The New South Wales Supreme Court yesterday gave judgment for a solicitor on an advocates’ immunity defence to a claim of professional negligence in respect of out of court work by the solicitor. The decision of Justice James was in the matter of Coshott v Barry [2007] NSWSC 1094. This disciplinary decision seems to be related in some way: Law Society of New South Wales v Vardas [2006] NSWADT 118. Anyone want to contribute a case note to this blog? Could be a while until I get around to it. What the Court said about immunity in the first case is reproduced below: Continue reading “NSW Supreme Court says solicitor immune from suit for out of court omissions”

Latest English solicitors’ liability newsletter

Here’s the latest from Reynolds Porter Chamberalain. Contents this edition include:

The High Court considers the scope of a solicitor’s duty of care in his dealings with an unsophisticated client

In Phelps v (1) Stewarts and (2) Dinsmore [2007] EWHC 1561 (Ch) the Court rejected a solicitor’s argument that her retainer was of a limited nature, given the complexity of the matter concerned, and the fact that the client was unsophisticated.

The High Court considers whether the removal of advocates’ immunity from suit is of retrospective effect

In Awoyomi v Radford [2007] EWHC 1671, the High Court held that the removal of advocates’ immunity from suit was retrospective and that accordingly a claim against two barristers was statute-barred.

The Court of Appeal exercises its duty to say that the judge applied the law to the facts wrongly, regarding extent retainer

In Stone Heritage Developments Limited and Others v Davis Blank Furniss (a firm) [2007] EWCACiv 765, the Court of Appeal held that the judge at first instance had erred in his finding that the defendant solicitors were negligent in failing to advise the claimant of one risk but not negligent in not advising of a similar risk.  The solicitors had not been negligent at all.

Advocates’ immunity and the wasted costs jurisdiction

In Macteldir Pty Limited v Roskov [2007] FCAFC 49, my old firm Middletons convinced a unanimous Full Federal Court to pronounce sternly that advocates’ immunity may not be circumvented by a client seeking to invoke the wasted costs jurisdiction of the Court against its own former lawyers, and to re-emphasise emphatically that the wasted costs jurisdiction is only to be exercised in the case of something akin to abuse of process, and certainly not merely negligent conduct.

The plaintiff sued its former solicitors and counsel, asking for an order that it did not have to pay its lawyers’ fees and that the lawyers pay the client some of the costs the client was ordered to pay the other side in the proceedings. In this post I suggest by way of additional note that the High Court has pronounced emphatically that lawyers are immune from suits which claim ‘wasted costs’, that is, a claim that the client incurred unnecessary expense by taking an unnecessary step, or that a costs order was made against the client in favour of the other side as a result of poor advocacy. Anyone have a contrary view? Continue reading “Advocates’ immunity and the wasted costs jurisdiction”

Solicitors’ settlement advice immune from suit

I know for a fact that the profession does not understand the extent of the advocates’ immunity which is set out in the decision of the majority in D’Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1. Not uncommonly I see lawyers’ negligence claims arising out of litigation being defended without claiming the immunity, or wasting costs by failing to claim it at the outset. In Jezovita v AGL [2007] VCAT 1447, VCAT’s Senior Member Howell, undoubtedly the most experienced examiner of immunity defences in the world, has delivered a pithy judgment which reiterates two matters in a clear way, and states clearly something which is relatively newly brought out into the open, though it has been lurking around quietly if you looked hard enough. The two matters reiterated are:

  • in relation to out-of-court litigation work, solicitors are as entitled to the immunity as barristers, regardless of whether they are appearing as advocates or engaging in the solicitor’s traditional role; and
  • advice as to settlement of litigation, as well as failures to advise in relation to settlement issues, may not be sued on because of the immunity: Biggar v McLeod [1978] 2 NZLR 9; Kelley v Corston [1997] 4 All ER 466.

In this matter, both solicitors and barrister were entitled to summary disposition of Mr Jezovita’s claim against them that they pressured him into the settlement, should have realised he did not understand the terms of settlement, that they negotiated negligently and did not get a satisfactory result, and that they should have advised him to run his case. In other words, just another failed regretted settlement case.

The relatively new matter clearly expressed in this judgment is that adding an allegation of undue influence into the plaintiff’s case will not assist, because the equitable doctrine of undue influence either founds a defence to a claim based on a transaction said to have been induced by undue influence of the counterparty or founds a claim to set aside a disposition said to have been brought about by the exercise of undue influence on the part of the counterparty to the disposition, but does not lead to an entitlement to damages: D’Orta-Ekenaike v Victoria Legal Aid (per Buchanan JA in the reasons for decision of the Court of Appeal’s refusal to grant leave to appeal from Judge Wodak’s decision at first instance, approved by Justice Callinan on appeal at (2005) 223 CLR 1 at 121).

WA Supreme Court says advocates’ immunity applies to misleading and deceptive conduct claims against lawyers

In Alpine Holdings Ltd v Feinauer[2007] WASC 58, the Supreme Court of Western Australia gave very short shrift indeed to an argument that a statutory claim of misleading and deceptive conduct was not met by advocates’ immunity. The decision is interesting for this reason alone. It is also interesting because of:

Just another failed regretted settlement case

In Wellington’s Case [2006] VCAT 2209, Mr Wellington’s teacher status as a tae kwon do expert apparently did not bear him in good stead when he was assaulted at his workplace. He thought his employer was to blame. He retained one of the big labor law firms to represent him in a challenge to Workcover’s refusal to pay him compensation. The man’s allegations were that the reason things had unravelled for him in cross-examination was that he had not been prepared properly for giving evidence, that incompetent counsel had been retained, and that his case had “not been properly prepared”. He had been “forced to settle” on a walk away basis on day 3 of his trial.

As in Stipanov v Mier, a young solicitor’s diligent file note taking did her firm proud, and she won every contest of evidence. Mr Wellington’s claim was tossed aside with the slightest ceremony, Mr Howell’s reasons for decision running to only 1,400 words. The clear implication of the decision is that Mr Wellington’s untruths were exposed by the solicitor’s contemporaneous written records.

Had the advocates’ immunity been claimed by the firm, they would no doubt have won on that basis by reference to Biggar v McLeod, but it was their prerogative to fight the case on the merits.

Nick Klooger was Counsel Assisting the Tribunal. Patrick Over was for the solicitor.