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A case for abolition

A case for abolition

By Cameron Green

Advocacy 


The immunity afforded to barristers and solicitors is becoming increasingly difficult to justify. Snapshot: The Australian judiciary has taken a novel approach to the law regarding advocate’s immunity – an immunity which is no longer justifiable on theoretical public policy grounds. While the scope of the immunity has narrowed recently, the experience of other jurisdictions demonstrates that the immunity itself is unnecessary to cure the ill it was designed to manage. The Australian judiciary’s unwillingness to abolish the immunity places the onus on Australian legislatures to ensure its abolition. It has been a long-standing principle of the common law that words spoken and conduct performed in court cannot form the foundation for a tortious claim of damages.1 The ostensible rationale for this principle, which has protected witnesses, judges, advocates and jurors alike from being sued by disgruntled parties to a litigation, has rested on a web of public policy considerations. While the protection afforded to witnesses and jurors is strongly supported by public policy considerations, the immunity afforded to barristers and solicitors is becoming increasingly difficult to justify, especially following the decision in Hedley Byrne v Heller2 and the ever expanding scope of the tort of negligence. HCA’s initial statement of the principle The immunity of the advocate was first alluded to in the High Court of Australia (HCA) by Starke J in Cabassi v Vila.3 However, it was not until close to half a century later that a majority of the HCA ruled, in Giannarelli v Wraith (Giannarelli),4 that the immunity formed part of the common law of Australia. In separate judgments Mason CJ, Wilson and Dawson JJ all held the immunity was supported by two public policy considerations – the advocate’s responsibilities to the court and the need to avoid relitigation.5 Mason CJ contended that should advocates be subject to the law of negligence for their conduct in court, it may jeopardise the faithful exercise by advocates of the necessary independent judgment required to manage a case through court.6 Mason CJ reasoned that should counsel be subject to the tort of negligence, unsuccessful litigants may choose to sue advocates “as an indirect means of calling into question the decision in the initial litigation” – a result that would be impermissibly “destructive to the public confidence in the administration of justice”.7 Brennan J was silent on the issue of finality, however he held that the immunity was justified because “if the immunity of counsel were abrogated, the assistance which the courts obtain from the advocacy of an independent profession would be imperilled”.8 Of the dissenting judgments in Giannarelli, only Deane J confronted the public policy justifications proffered by the majority. According to Deane J, the public policy considerations do not “outweigh or even balance the injustice and consequent public detriment involved in depriving a person, who is caught up in litigation and engages the professional services of a legal practitioner, of all redress under the common law for ‘in court’ negligence, however gross and callous in its nature or devastating in its consequences”.9 The majority ultimately held that advocate’s immunity formed part of the Australian common law, however the precise scope of the immunity remained unclear. Development of the doctrine in Australia Given the strong reliance on the majority judgments in Giannarelli on House of Lords (HOL) authorities supporting advocate's immunity,10 when the HOL decisively abolished the immunity in Arthur JS Hall & Co v Simons (Arthur)11 it presented the HCA with an opportunity to follow suit. In D’Orta v Victorian Legal Aid (D’Orta)12 six of seven justices denied the opportunity to abolish the immunity, and extended its scope to include solicitors who instruct advocates. The majority adopted the test set out by Mason CJ in obiter in Giannarelli that the immunity of the advocate extended to “work done out of court which leads to a decision affecting the conduct of the case in court”.13 McHugh and Callinan JJ articulated the boundary of the immunity in broadly consistent terms. 14 Only Kirby J dissented in D’Orta and his reasons are the most strongly worded and expansive statement by a justice of the HCA on the strong arguments against the maintenance of the immunity. His persuasive reasons are discussed further below. The HCA again considered the immunity in Attwells v Jackson Lalic Lawyers Pty Ltd (Attwells),15 which unanimously held that the immunity continued to form part of the common law of Australia. In Attwells, the majority clarified the scope of the immunity and held that it applied “to conduct of the advocate which contributes to a judicial determination”.16 The majority held that the overriding justification of the immunity was restricted to the public policy requiring finality of court proceedings. 17 In Kendirijian v Lepore (Kendirijian)18 the HCA further clarified that the scope of the immunity did not extend to negligent advice leading to the rejection of an offer to settle. The immunity only attaches to conduct that leads to the resolution of a dispute by exercise of judicial power. While both Attwells and Kendirijian have substantially attenuated the immunity’s operation, the immunity persists as a part of the Australian common law. The Australian enigma: advocate’s immunity throughout common law There are essentially two approaches that other common law jurisdictions have taken to advocate’s immunity: the immunity never formed part of the common law of some jurisdictions the immunity initially formed part of the common law, but has now been abolished by the courts. Jurisdictions where the immunity never existed The North American common law jurisdictions – the USA and Canada – have never held that an advocate is immune from suit for their negligent conduct in court. In the USA, the Supreme Court (SCOTUS) rejected the immunity, stating that there is “a marked difference between the nature of counsel’s responsibilities and those of other officers of the court”.19 SCOTUS considered that allowing advocates to be liable in tort has a positive effect on litigation and provides an incentive for advocates to perform their functions competently.20 Similarly, Krever J sitting as the Ontario High Court of Justice held that advocate’s immunity did not form part of the Canadian common law, and argued that the immunity was not necessary for the management of negligence cases against advocates.21 Jurisdictions where the immunity has been abolished Historically, in the UK and New Zealand advocate’s immunity formed part of the common law, however it has been judicially abolished in these jurisdictions. The HOL decision of Arthur unanimously rejected the previous authorities of Rondel and Saif. In Arthur, their Lordships found that the public policy considerations which had previously supported the immunity were no longer capable of justifying it. Lord Hoffman famously described advocate's immunity as akin to “. . . burning down the house to roast the pig; using a broad-spectrum remedy when a more specific remedy without side effects can handle the problem equally well”. 22 In particular, the HOL held that a barrister’s divided loyalty between their duty to the court and their duty to the client does not support the immunity, and rejected arguments that the immunity was required to ensure finality in the court process.23 The Supreme Court of New Zealand has also abolished the immunity in broadly consistent terms as the HOL.24 Is the immunity justified? Kirby J’s dissent in D’Orta provides Australian jurisprudence with a comprehensive and scathing critique of the rationale behind advocate’s immunity. In his judgment Kirby J meticulously analyses the myriad of justifications that have been proffered in support of the immunity. Given the decision in Attwells has confined the justification for the immunity to the need for finality in the administration of justice, it seems that most of the critiques Kirby J levelled against the immunity have succeeded. No longer is the immunity supported by the argument that barristers cannot sue for fees, or the contention that a barrister may be incentivised to prefer their duty to their client over their paramount duty to the court. As such, should the immunity be unnecessary to protect the need for finality in judicial decision-making, then the current sole justification for the immunity will no longer exist, and therefore neither should the immunity. In Lai the Court reasoned that existing doctrines such as res judicata, issue estoppel and the Court’s inherent and statutory powers to strike out proceedings for abuse of process were enough to ensure the need for finality in litigation.25 This point was also convincingly made by Lord Steyn in Arthur.26 In Australia, courts have always had an inherent discretionary power to protect the finality of decision-making, and the suggestion that the immunity of the advocate is protecting this important doctrine is disingenuous.27 For this reason alone, the immunity is unjustified. Given the immunity is not required to protect the finality of judicial decision-making, its incursion upon a more fundamental element of the rule of law – equality before the law – provides further incentive for its abolition. In Kirby J’s extra-judicial words the immunity is “an anomalous, unjust and unclear exemption from legal liability to a particular class of citizens”28 and, as such, it is an affront to the public perception that every wrong should have a remedy. It should be noted that even without the immunity it would be difficult for a potential litigant to prove that “but for” a lawyer’s negligence an adverse judicial determination was made. For instance, a lawyer would not be found liable for abiding by their paramount duty to the court, or for making decisions which any reasonable advocate could have made. Finally, there is a sound argument, in line with that proffered by SCOTUS, that the abolition of the immunity would actually be “a force for good”.29 In Arthur Lord Steyn argued that “one of the functions of tort law is to set external standards of behaviour for the benefit of the public”.30 This argument is persuasive. The partial exclusion of the legal profession from suit removes a tortious incentive to perform at a high standard, thereby adversely affecting the administration of justice. Where to from here? While judges created the immunity and should take responsibility for abolishing it, this is unlikely to happen in the foreseeable future. All sitting HCA justices have recently ruled favourably on the immunity’s existence, and a new HCA majority is unlikely until early 2024. As such, it is incumbent on both federal and state legislatures to respond decisively to the HCA’s obiter dicta suggesting that it is for the parliament to abrogate this common law immunity.31 There are some clear advantages of the legislature acting to abolish the immunity, instead of the courts. For instance, the legislature can and should ensure that the change is not retrospective.32 Additionally, legislatures could concomitantly limit the liability of legal professionals for the tort of negligence by restricting it to gross negligence or negligence that results in a manifestly unjust outcome. Alternatively, legislatures could overcome the fears about an ensuing “floodgate of litigation” by tying the ability to sue for negligence to the appeals process. In abolishing the immunity, legislatures should also be mindful to ensure that there are practical benefits for clients from such a decision. If clients are substantively or procedurally barred from suing negligent advocates, then the immunity may be said to exist in form, but not name. For instance, in the USA, advocates are apparently not subject to extensive litigation for negligence due to the development of jurisprudence which makes proving a claim of advocate’s negligence difficult.33 This is yet another consideration which suggests that while judges created the immunity, legislatures are better placed to navigate the detail of its abolition. Cameron Green is a Master of Law (JD) student at Monash University's Law Chambers. He has a keen interest in legal ethics and public law. 1. Damport v Sympson (1596) Cro Eliz 520 [78 ER 769]. 2. [1963] 2 All ER 575. 3. (1940) 64 CLR 130 at 140. 4. (1988)165 CLR 543. 5. Note 4 above, 555-558; 573-574; 594-595. 6. Note 4 above, 556-557. 7. Note 4 above, 558. 8. Note 4 above, 579-580. 9. Note 4 above, 588. 10. Rondel v Worsley [1969] 1 AC 191 (Rondel); Saif Ali v Sydney Mitchell & Co [1980] AC 198 (Saif). 11. [2002] 1 AC 615. 12. [2005] HCA 12. 13. Note 12 above, at [85]-[87]. 14. Note 12 above, at [168] and [383]. 15. [2016] HCA 16. 16. Note 15 above, at [6], [37]. 17. Note 15 above, at [34] and [66]. 18. [2017] HCA 13 at [32] (Kendirijian). 19. Ferri v Ackerman I444 US 193 (1979) at 203. 20. Note 19 above, at 204. 21. Demarco v Ungaro (1979) 95 DLR (3rd) 385. 22. Arthur at 703-704. 23. Ibid, at 686, 692-693, 703, 738-739. 24. Chamberlains v Lai [2007] 2 NZLR 7 (Lai). 25. Lai, ibid, at [80]. 26. Note 11 above, at 680. 27. Federal Court of Australia Act 1976 (Cth), s22; Susan Bartie, “Antipodeans Differ Over Advocate’s Immunity” (2007) 18 Insurance Law Journal 98, 102. 28. Hon Michael Kirby AC CMG, “Of Advocates, Drunks and Other Players: Plain Tales from Australia” (2011) 23 The Denning Law Journal 47, 53. 29. Note 28 above, at 53. 30. Note 11 above, at 682. 31. Note 15 above, at [28]. 32. Hon Justice Stephen Charles, “The Immunity of the Advocate” (2003) 23 Australian Bar Review 220, 225-226. 33. Paula Gerber, “Burning Down the House to Roast the Pig: The High Court Retains Advocate's Immunity” (2005) 28(3) UNSW Law Journal 646, 662.

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