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Advocate’s Immunity – is it time to remove the immunity?

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What is advocates immunity?
1.      In Australia, an advocate’s immunity from lawsuit was first expressly recognised by the High Court in Giannarelli v Wraith [1988] HCA 52; 169 CLR 543. In that case, the High Court applied the common law principle that both barristers and solicitors are immune from civil liability in professional negligence or contract, in relation to the conduct of a case in court and for work undertaken out of court that is “intimately connected” with the conduct of a case in court.
Why does Immunity exist?
2.      The High Court’s decision in Giannarelli mirrored that of the majority of the common law world in deferring to a long jurisprudence from England that established advocate’s immunity e.g. Rondel v Worsely [1969] 1 AC 191.
3.      According to the many courts that have heard argument over the existence of the immunity, the reasons why such an immunity was established can be summarized by the following:
(a)    ‘Cab rank’ rule
The first basis that is often cited for the immunity is that barristers are subject to the cab rank rule. At a general level, the rule states that advocates are bound to accept briefs within their range of expertise. The contemporary notion of the rule is to be found in the Legal Profession Uniform Conduct (Barrister’s) Rules 2015 (NSW), rules 101-105. The suggestion is that if advocates’ immunity is abolished, barristers can and should veto clients on the basis they may be expected to sue them – in direct contrast with the rule. It is doubtful that the existence of the rule remains relevant to a discussion of advocate’s immunity, especially since it is now perfectly acceptable for barristers to not accept briefs where they lack the capacity to fulfil the role i.e. when they are over-encumbered with briefs.
(b)   Advocate’s overriding duty to the court
Rule 23 of the Barrister’s Rules states: “A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.” Where this duty conflicts with a barrister’s duty to their clients, the duty to the court is said to be paramount. However, in circumstances where advocates face the possibility of liability as a consequence of their duties to their clients in court, it may be the case that advocates subordinate their duties to the court in preference to those owed to the client: Giannarelli (1988) 165 CLR 543, 572-3 (Wilson J). In the same decision, Mason CJ considered at 556-7 that there was a real risk that the exposure of advocates to potential liability in negligence would adversely affect the administration of justice. However, Wilson J further explained at 572 that an advocate “could never be in breach of any duty to the client by fulfilling the paramount duty” to the court.
(c)    No contract between the advocate and the client
The immunity had traditionally been justified by the absence of a contract between advocates and their clients (since any contract was normally formed between advocates and instructing solicitors). It was long held that a duty of care could not extend to a situation in which no contractual relationship existed between the two parties. This proposition was overruled by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. Furthermore, barristers may now accept briefs directly from clients and solicitors are able to appear as advocates.
(d)   The ‘finality’ principle and collateral attacks
Perhaps the most enduring argument for the maintenance of the immunity has been that it prevents collateral challenges against judicial decisions by removing a potential avenue for disaffected parties to raise grievances that had been determined in an earlier proceeding. The concern with collateral challenges arises due to the possibility of different courts arriving at inconsistent decisions on the same matter, damaging public confidence in the administration of justice.
The notion there would be a plethora of litigation questioning judgements where it is alleged that advocates have been negligent is entirely arbitrary and without substance. Claims against advocates in these jurisdictions are not a significant category in the course of malpractice suits largely because they are extremely difficult to establish.
Furthermore, Lord Steyn in Arthur Hall at 678-680 considered that abuse of process, res judicata and issue estoppel granted sufficient powers to a court to make a decision about whether or not a collateral challenge should be permitted and that the defence of advocate’s immunity is not needed to protect the administration of justice.
(e)    Immunity extends to all other participants in judicial proceedings
There is clear authority that immunity from suit also extends to the actions performed and statements made by judges, witnesses, court staff and jurors in the course of judicial proceedings. These immunities do differ in terms of scope but they are all granted to protect the operation of the legal system and not for the personal benefit of those involved: Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575, 613 (Kirby J). The common theme is that participants are protected for actions done in good faith, even if wrong or negligent. The point being that to exclude advocates would be anomalous.
4.      As can be seen by the brief discussion above, many of these reasons are no longer relevant to a discussion of whether the immunity should be maintained. The following sections of this paper will explore the acceptance of advocates’ immunity internationally, exactly how the immunity is applied in Australia, and finally what the future might look like for the continued maintenance of the immunity.
Does advocates’ immunity exist internationally?
5.      Debate over the existence of the immunity is not new. However, over a wide range of legal systems, slowly but surely, all of those reasons for establishing the immunity have been rejected. The notion of the immunity as a bar to suing an advocate for negligence in court has been rejected in the United Kingdom (Arthur JS Hall & Co v Simons [2000] UK HL38), New Zealand (Lai v Chamberlains [2003] 2 NZLR 374), South Africa, Scotland (Wright v Paton Farrell (Unreported, Scottish Court of Sessions, 27 August 2002)), Canada (Demarco v Ungaro (1979) 95 DLR (3d) 385) and the United States of America (Ferri v Ackerman, 444 US 193 (1979)). It is only Australia that still holds the view through two High Court cases (Giannarelli & D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1: discussed further below) that the finality principle primarily justifies a defence of the immunity. Australia is in “splendid isolation” on the issue of advocate’s immunity.
6.      The most extensive judgment on the question of the immunity is probably Arthur Hall, a judgement delivered by the House of Lords in 2000. In that case, Lord Steyn recognised that perceptions of society are subject to change and should be reviewed to consider where public policy considerations apply. Whether one likes it or not those changes do take place, for instance in the case of gay marriage. 20 years ago the notion itself would have provoked a public outcry. Yet, in 2014-2015, the right to marry a same sex partner has been acknowledged and condoned in a sweeping change of attitudes in the Western world.
How is it applied in Australia?
7.      This section will explore the precise circumstances in which Australian courts have stated that advocates can utilize the immunity and the relevant legal tests involved.
8.      First, it should be noted that the immunity extends to persons acting in the capacity of advocates. This may include solicitors performing work that “is of a kind which falls within the area of immunity”: May v Mijatovic (2002) 26 WAR 95, 120 (Hasluck J).
9.      When an advocate’s conduct is called into question as being negligent, the “intimately connected to court” test must be satisfied for the advocate to be immunized from liability.
10.  The test requires a court to consider whether the advocate’s work was done in court or outside court but “intimately connected” to a case in court: Giannarelli at 560 (Mason CJ). Callinan J in Boland at 670-1 indicates that what is “intimately connected” is a strategic rather than temporal connection: 
“(His Honour did not accept that) simply because the work … was done over a long period of time, that in some way divorced it from work done closer in time to the hearing even though the former answered the description of work intimately connected with the forthcoming trial.”
11.  Nonetheless, what exactly falls within the category of “intimately connected” is unclear, with Kirby J describing the test as “imprecise” in Boland at 611. This is a “kind description” and the test brings no comfort to a practitioner or a judge in trying to determine what the limits of the immunity might be.
12.  Bell J in Goddard Elliot (a firm) v Fritsch [2012] VSC 87 gave a particularly wide interpretation to the phrase. His Honour found that he was bound by the interpretations of the High Court in Giannarelli and D’Orta. Despite this, he found that the application of the immunity in circumstances where a client’s capacity to give instructions was questioned “deeply troubling” (at [1145]). This case illustrates that Australian courts are unlikely to adopt a restrictive approach in applying the immunity although there is clearly judicial unease associated with it.
The erosion of the principle in Australia
13.  In the above sections of this paper, the reasons for the establishment of the immunity, its current international acceptance, and the test applied in Australia for its use were discussed. This section will explore the degree to which the immunity has been eroded, providing further arguments against its maintenance in Australia.
14.  A major erosion of the immunity occurred when it was decided (Eurobodalla Shire Council v Wells & Ors. [2006] NSWCA 5) under the rules of court that a barrister or a legal practitioner could be held liable for costs in circumstances where they advocated a case that was without merit. The rule is further incorporated in legislative provisions such as Civil Procedure Act 2005 (NSW) s 99. Such a costs order clearly stands in conflict with the traditional immunity and one might wonder how they could continue to co-exist.
15.  In addition to costs orders against advocates, the immunity has been further eroded by a number of further “carve outs” which exclude the immunity from being applied in relation to certain subject matters, including:  
(a)    matters which cannot be said to be intimately connected with the conduct of a case in court;
(b)   advice in relation to questions of jurisdiction - if you are in the wrong court then you automatically lose, the arguments prepared are not in question at all and hence negligence in this regard cannot be said to be intimately connected with the conduct of a case in court: Donnellan v Woodland [2012] NSWCA 433, Beazley JA;
(c)    a failure to provide advice in relation to questions of who should be joined to proceedings - again it does not matter how you conduct yourself in court, you are going to lose: Donnellan;
(d)   providing advice for purposes not related to the proceedings (advice as to pre-trial investigations prior to summons etc): Donnellan;
(e)    advice on the prospects of success in an appeal: Symonds v Vass (2009) 257 ALR 689;
(f)     sheer delay or mere inaction: MM & R Pty Ltd v Grills [2007] VSC 528;
(g)    the negligent compromise of appeal proceedings leading to the loss of benefits gained at first instance, Donellan at [248]; 
(h)    Matters where the advocate has represented that he has special expertise when that is not the case [2015] FCAFC 80.
16.  The quantity and significance of these ‘carve-outs’ might actually mean that a reversal of the current position is more difficult to achieve given the degree to which it has already been achieved.
17.  The immunity rule is an offence to the principal that where there is a wrong there should be a remedy. That is a central principle to the law of contract and tort. In these circumstances, such an anomaly would ordinarily require cogent reasons for its application. It is certainly true that at one stage society thought such reasons existed. However, over a long period of time and through developments in the law, the rules of court and the safeguards built into the inherent powers of a court, these reasons have been relinquished in other jurisdictions – this is not yet so in Australia.
18.  On the issue of collateral challenges leading to inconsistent decisions, there is a great body of lawyers that dispute the reasoning. Where a court comes to a finding on the evidence placed before it, this does not mean that another court should not be entitled to arrive at a different conclusion where different evidence is placed before it.
19.  The public’s unease is amplified by the provision of an immunity from suit by the law to practising professionals of its own discipline. Lord Diplock in Saif Ali v Sydney Mitchell Co (a Firm) [1978] UK HL6 at 220 noted that the work of advocates bore many similarities to that of other professionals who were also required to make difficult decisions under great pressure. The immunity actually harms the Bar in that it seems unacceptable that the only profession that does not have to suffer scrutiny is the legal profession whereas all others have to. Finally, it is difficult to accept the High Court’s contention that the public policy considerations that apply in Australia are somehow different to those that apply in the rest of the common law world.
The future?
20.  It is not clear what the future will hold for the immunity and the particular process through which it might change.
21.  In terms of a substantive change, the hurdles of proving causation, remoteness and breach of duty adequately protects advocates from vexatious attacks and the court process from being unduly abused. This is particularly likely given the provisions for the summary dismissal of baseless claims. The immunity is an offence to a judge in that they should be able to determine whether there really is a dispute and hence there should be no need for a blanket immunity.
22.  On the other hand, Brennan J concluded that until there was evidence of a clear decline in the standard of advocacy, the conduct of advocacy should be regulated by “the publicity of court proceedings, judicial supervision, appeals, peer pressure and disciplinary procedures to prevent neglect”: Giannarelli (580). In this regard, removing the immunity might only improve the standard of advocacy applied by lawyers and this is something that should be sought after rather than considered as a secondary objective.
23.  For the High Court to hear a matter, it requires that some hapless victim take the risk to bring it there through a series of hearings from lower courts bound by Giannarelli, through a special leave application and to a forum where the prospects of success can only be marginal in light of the previous authorities.
24.  On the question of whether the future of the immunity should properly be decided by the legislature as opposed to the courts, who seem to be confined in their ability to reform by the lack of ambiguity in their past rulings on the issue,  the current test for the application of the immunity remains imprecise and that the High Court could clarify the test with a more specific construction that limits the application of the immunity. The public interest motivation for the immunity leaves the door open to the High Court reinterpreting the application of the test in line with the changed public perception of the immunity, to restrict its scope.
25.  In November 2015 , the High Court will have the opportunity in the matter of actual versus Jackson Lalic to reconsider the question of immunity. Essentially there are three principal possibilities invading the following ;
(a)    That the High Court will continue to apply the immunity rule as it has done in June, early and the author ;
(b)   The High Court gives greater definition to the term “intimately connected to the conduct of the case in court.” And perhaps extends the category of carve-outs for exceptions to the immunity rule.
(c)    The High Court follows the international trend and holds that the basis of maintaining immunity rule no longer applies, and that the court has sufficient alternate power to prevent baseless collateral challenges and abuse of process.
Focus Case:
Stanton v Tyler [2015] NSWSC 797
Benchmark Link:
Arthur JS Hall & Co v Simons [2000] UK HL38
Boland v Yates Property Corporation Pty Ltd [2002] HCA 64
Demarco v Ungaro [1979] 95 DLR 3rd 385
Donnellan v Woodland [2012] NSWCA 433
D’orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 233 CLR 1
Eurobodalla Shire Council v Wells & Ors. [2006] NSWCA 5
Ferri v Ackerman, 444 US 193 (1979)
Giannarelli v Wraith [1988] HCA 52: 169 CLR 543
Goddard Elliot (a firm) v Fritsch [2012] VSC 87
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Lai v Chamberlains [2005] NZ CA 37
Leslie v Ball [1863] 22 UCQB 512
MM & R Pty Ltd v Grills [2007] VSC 528
Rondel v Worsely [1969] 1 AC 191
Saif Ali v Sydney Mitchell Co (a Firm) [1978] UK HL6
Symonds v Vass (2009) 257 ALR 689
Wright v Paton Farrell (Unreported, Scottish Court of Sessions, 27 August 2002)
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Conduct (Barrister’s Rules) 2015 (NSW)
By: Martin Luitingh
IAMA Nationally Accredited Mediator
Arbitrator - CIArb ( Adelaide)
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