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Attorneys weigh up immunity

WHILE THE High Court has not only shored up but extended lawyers’ immunity in a recent decision, state attorneys-general brought the matter into question again as Lawyers Weekly went to press…

WHILE THE High Court has not only shored up but extended lawyers’ immunity in a recent decision, state attorneys-general brought the matter into question again as Lawyers Weekly went to press earlier this week. The Standing Committee of Attorneys-General (SCAG) was set to discuss the controversial matter in a meeting on the Gold Coast.

Uniform defamation and terrorism laws, along with immunity for barristers and solicitors, were all on the agenda at the SCAG meeting, which ran in conjunction with the LawAsia Down Under Conference this week.

A long-running concern of the legal profession, the common law immunity from negligence suits enjoyed by barristers has been under threat in recent years. Recently, however, the High Court upheld immunity for barrister conducting a case and solicitors involved in court work.

In Ryan DOrta-Ekenaike v Victoria Legal Aid and Ian Denis McIvor, the Court determined D’Orta-Ekenaike could not proceed with a negligence claim against his barrister. The decision has set Australia apart from New Zealand, Britain, the US and Canada, where the immunity principle has been overturned. Justice Michael Kirby was the only dissenting High Court judge in the 6-1 ruling.

According to reports, New South Wales Attorney-General Bob Debus was to support an investigation into whether immunity is justified. His Victorian counterpart Rob Hulls made a proposal in a meeting of the Attorneys-General in 2000, arguing that removing the exemption is one way to restore public faith in the judicial system.

Hulls said it was “pretty difficult” to argue that one section of the community, barristers, should be exempt from the negligence laws.

“I’m of the view that clients should have the right to a redress if it can be shown that their barrister has been grossly negligent. The House of Lords in the UK came to that conclusion. And I think that we need a national approach to this same issue here in Australia,” Hulls told ABC radio in October 2000.

But last year, the Law Council of Australia’s then president, Bob Gotterson, said the ramifications of a loss of barristers’ immunity could be drastic. The common law immunity from suits doesn’t operate with regard to most of what advocates do, he said, adding that immunity is essential to ensure advocates can conduct cases freely and independently, “without the chilling spectre of litigation hanging over them”.

Changes to current immunity provisions could mean cases are conducted with a scrupulous eye to possible liability action. “This could well mean adding expense as more and more time is spent checking out every nook and cranny,” he said.

See next weeks issue of Lawyers Weekly for detailed reports both on the SCAG meeting and the Law Asia conference.

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