Advocates still immune in court but it’s settled they can be sued for negligent settlements
In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572, the High Court was again asked an important question about the extent and continued existence of the advocate’s immunity from suit, especially in the context of settlement agreements.
The High Court declined to reconsider previous decisions that held that the advocate’s immunity was attracted by the participation of the advocate, as an officer of the court, in the quelling of controversies by the exercise of judicial power. Because of this, immunity did not extend to acts or advice of the advocate that did not move litigation towards a determination by a court, being most commonly settlement agreements.
The settlement agreement, and the substantive content of the rights and obligations established in them, were determined by the parties themselves without any determination by the court. As such, there was no advocate’s immunity from suit where negligent advice was given as to the settlement of cases.
Where there’s a will, should one warn there could be a family member finding a way?
In Badenach v Calvert (2016) 90 ALJR 610, the High Court provided some important clarification on the nature and scope of a solicitor’s duty to exercise reasonable care and skill, particularly in respect of third parties.
The appellant solicitor, Mr Badenach, was retained by a client, Mr Doddridge, to prepare a will in which the latter proposed to give his whole estate to the beneficiary, Mr Calvert. Mr Badenach neglected to ask Mr Doddridge whether there were any family members who might possibly make family provision claims.
After Mr Doddridge died, an estranged daughter, Patrice, successfully claimed provision, as a result of which the estate available to Mr Calvert was significantly depleted. Mr Calvert sued Mr Badenach, and his firm, for professional negligence, claiming that, had the solicitor made the appropriate inquiry, he ought to have advised Mr Doddridge as to the means of defeating the family provision claim that in fact eventuated. The loss claimed was expressed as the loss of an opportunity or prospect that Mr Doddridge might have given instructions to take steps to protect Mr Calvert’s position.
The High Court held that a solicitor’s duty of care was limited to a person whom the testator actually intended to benefit from the will and was confined to requiring the solicitor to take reasonable steps to benefit that person in the manner and to the extent identified in the solicitor’s instructions.
In this case, Mr Badenach’s omission to warn Mr Doddridge of the risk that his daughter might claim against the estate was not an omission to take steps integral to carrying out instructions that the estate be given to the respondent.
In the absence of further instructions, which would necessarily had expanded the scope of the retainer, it could not be concluded that there was any omission of Mr Badenach falling within the scope of the duty of care owed by him to Mr Calvert.
No need to follow the Brits; it’s fine to be over-criminalised
Miller v The Queen (2016) 90 ALJR 918 gave the High Court an opportunity to decide whether to follow a high profile decision of the Supreme Court of the United Kingdom and Privy Council by similarly holding that the common law took a ‘wrong turn’ and that there was no place for extended joint criminal enterprise liability in the common law.
Here, two of the four appellants had been drinking when they became involved in an altercation with two other men. The two appellants then left the scene and returned home, telling the other two appellants of the incident. All of the men then decided to revisit the victims and violence ensued. One of the appellants, Betts, stabbed a victim to death. Each appellant was charged with murder in relation to one victim and aggravated assault in relation to both victims.
Although Betts was the only man which the Crown contended knowingly committed the murder, the three other men were convicted of murder via “extended joint criminal enterprise”. This doctrine from McAuliffe v The Queen (1995) 183 CLR 108 was found to be satisfied if each man intended to commit an assault but foresaw the possibility that one of the other men might kill or inflict serious injury.
On appeal to the High Court of Australia, the appellants invited the court to abandon or confine the doctrine enunciated in McAuliffe v The Queen in light of the decision of the Supreme Court of the United Kingdom and Privy Council in R v Jogee  2 WLR 681. In Jogee, the court held that the doctrine of extended joint criminal enterprise, where there was a possibility of a more serious crime being committed, was an over-criminalisation and extended liability too far.
However, the High Court held that the principle of extended joint criminal enterprise liability stated in McAuliffe v The Queen remained part of the common law of Australia notwithstanding R v Jogee.
Choose your jury foreperson wisely, or at least pay attention
In NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978, the High Court was asked to decide whether the Supreme Court of South Australia had an inherent power to amend or set aside a verdict delivered by a jury foreperson.
In this interesting case, four appellants were acquitted of murder but convicted of the alternative offence of manslaughter. When delivering the jury’s verdicts, the foreperson, in the sight and hearing of the other jurors and without any dissent or action by them, informed the court that the required majority of at least 10 jurors had agreed on verdicts of not guilty of murder in relation to each appellant.
After the jury had been discharged, the foreperson informed a court officer that he had made a mistake. In fact, there had not been a majority of 10 or more in favour of a verdict not guilty of murder in relation to any of the appellants.
The Supreme Court of South Australia (Full Court) quashed both the murder and manslaughter verdicts and directed a new trial on the charge of murder. The Full Court found that the verdicts of not guilty of murder were unlawful as the required majority had not been reached. It characterised the unlawful verdicts as giving rise to an abuse of process that enlivened an inherent power to quash the unlawful acquittals.
However, the High Court held that neither an innocent error by a jury foreperson in delivering a verdict nor acquiescence by other members of the jury constitutes an abuse of process.
As such, the Supreme Court of South Australia does not have inherent power to amend or set aside a verdict delivered by a jury foreperson in the sight and hearing of the other jurors and where no dissent or correction have been made by them and which has been translated by the trial judge into a perfected judgment of acquittal or conviction.
Carl Olson is an ANZ product management director at Thomson Reuters Legal.
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