Where are we at with advocate’s immunity?

By Darryl Browne in Blog on May 11, 2016

On 4 May 2016 the High Court delivered its decision in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16. There were two issues. Firstly, was the advocate’s immunity to be retained as part of the common law of Australia. Secondly, if so, what was the scope of that immunity.

The immunity

The High Court of Australia had considered the immunity in 2 previous decisions: Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 and D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1. On the first occasion the court decided to maintain the immunity which was part of the common law of England. Thereafter, the House of Lords changed the common law of England to abolish the immunity. On the second occasion the court reconsidered its position given the development in the UK, but decided to maintain the immunity. Since then New Zealand has followed the abolition of the immunity in England.

The position in Australia is now seen to be anomalous as it is the only common law country to maintain the immunity. The immunity in England and NZ was abolished because it was considered alien to public policy to allow a protected class of non-litigant, namely litigation lawyers. The HCA recognised this issue but considered that abolition of the immunity would be a substantial change in the law, and that that was something that was best left to the legislature. It unanimously decided to retain the immunity as part of the common law of Australia. That result is likely to foreclose the further agitation of that issue for some years.

The scope

The decision in Attwells was that the scope of the immunity didn’t extend to the solicitor’s advice to settle proceedings, which advice lead to consent orders being pronounced by Rein J on the second day of a hearing. The plurality – French CJ, Kiefel, Bell, Gageler and Keane JJ; Nettle J and Gordon J dissented on the scope issue – recast the basis for the immunity from finality of legal action to “the exercise by the court of judicial power to quell a controversy”. “[O]nce a controversy has been finally resolved by the exercise of the judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong”. Similarly, it was said that “[t]he advocate’s immunity is… justified…by precluding a contention that the [judicial] decisions were not reached lawfully”.

Therefore, “the scope of the immunity…is confined to conduct of the advocate which contributes to a judicial determination”. “[I]t is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attracts the immunity. Because that is so, the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court”.

Action which will probably be protected by the immunity

The plurality decided that only legal work which has “a functional connection between the advocate’s work and the judge’s decision…. “ “where the advocate’s work has contributed to the judicial determination of the litigation” is protected by the immunity. Examples of that legal work are:

• Calling or not calling a witness
• Reading or not reading an affidavit
• Cross-examining, or not, a witness
• Cross-examining, or not, a witness on a particular allegation
• Making, or not making, submissions on a particular issue
• Advising on a plea of guilt – this being the facts in the decision in D’Orta-Ekenaike
• Tendering, or not, evidence
• Citing legal principle or authority.
• Failing to object to inadmissible evidence this being the fact that lead to the decision of Giannarelli

It would seem to include any legal work involved in a court hearing which leads to an order of the court whereby the court decides the rights and liabilities of parties as distinct from the court merely giving effect to a decision of the parties on their rights and liabilities.

Action which may not be protected by the immunity

The plurality acknowledged that there are “many cases where, although the parties have agreed upon the terms of the order which a court is asked to make, the making of the order itself requires the resolution of issues by the exercise of judicial power”. They stated that it was unnecessary to decide whether legal work leading to the court order in those cases attracted the immunity. They said that examples included:

• where representative proceedings are settled,
• where proceedings on behalf of a person under a legal incapacity are to be compromised,
• where agreements are made in relation to proceedings under Native Title Act 1993,
• the exercise of the judicial discretion to allow an agreement to amend a patent granted under the Patents Act 1900 (Cth),
• the compromise of certain debts under the Corporations Act 2001 (Cth).

Action which probably wouldn’t be protected by the immunity

The immunity doesn’t extend to “acts or advice of the advocate which do not move litigation towards a determination by a court”. This would seem to include acts or advise on:

• Making a voluntary agreement between the parties even if litigation is on foot and a hearing has commenced – this being the facts in Attwells.
• Commencing proceedings
• Drafting pleadings
• Amending pleadings
• Appealing, or not, a judicial decision
• Settling a claim in civil proceedings
• Not settling a claim
• The process resulting in the strike out or dismissal of proceedings without adjudication on its merits.

The risk

The profession’s risk and exposure arising from the reduced scope of the immunity is highlighted by another case, Stillman v Rushbourne [2015] NSWCA 410. In Stillman a claim was settled on advice from solicitors during the course of a court appointed mediation before a Registrar of the Supreme Court. The terms of the settlement were embodied in a consent order of the Court. In the NSW Court of Appeal, Gleeson and Simpson JJA acknowledged that mediation didn’t involve the exercise of judicial power. However, they considered it to be a step in the process towards the exercise of judicial power, namely the entry of judgment. It was therefore considered immune from attack on the basis of the negligence of a party’s lawyer. That reasoning is not consistent with the reasoning of the plurality in Attwells.

Basten JA delivered a dissenting judgment to the effect that consent orders entered prior to a hearing did not involve the judicial determination of a controversy on its merits. He stated that there was no justification for extending advocates’ immunity to the conduct of the legal representatives in the course of the mediation which lead to the consent orders. That reasoning is very largely consistent with the plurality in the High Court.

Resolution of family provision claims

Where does resolution of a family provision claim fit in this classification? If the resolution is without court orders there is clearly no immunity. However what of a resolution made by consent orders? Before an order can be made the court needs to be satisfied of certain jurisdiction facts. It then needs to exercise a statutory discretion. Is a consent order made in this setting “the quelling of controversies by the exercise of judicial power”?

In that context the comments of Young J in Hadley v McNamara re the Estate of Mary Anne McNamara (unreported, NSWSC, 7 December 2005) may be relevant:

‘In former times the court used to look at these applications [for consent orders] as if they were discretionary matters and seek to work out whether the court had jurisdiction. It is now clear that that is the wrong approach under the Family Provision Act and that if the parties agree to settle proceedings under the Family Provision Act, and there is no other interest involved, ordinarily the court should merely make the orders in accordance with the terms of settlement. There will, of course, be the odd exception where it clearly appears on the face of it that there is no jurisdiction in the sense that the plaintiff has no need of provision.’

This description of the process suggests that consent orders resolving family provision claims will usually “not [be]…the result of the exercise of judicial power”. If that is the correct conclusion, the actions of the legal advisers leading to the orders will not protected by advocate’s immunity.

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