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Advocate’s immunity – without fear or without favour but not both

Advocate’s immunity – without fear or without favour but not both

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On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & Anor [2017] HCA 13 which limited the scope of the protection from suit advocates’ immunity affords to legal practitioners, writes Alexander Hickson.

In its decision, the High Court unanimously allowed the appeal and affirmed that advocates’ immunity did not extend to negligent advice leading to the compromise of litigation by agreement between the parties because it was not advice that affected judicial determination. 

The decision in Lepore affirms the High Court’s earlier decision in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 where the court held that the immunity did not go so far as to protect the advice of a legal professional, which leads to the compromise of a claim by the parties out of court. The decision also marks Justice Edelman’s first judgment as a member of the High Court. 

While we applaud the High Court’s recent erosion of this once seemingly impenetrable doctrine in Lepore and Attwells, in our view the High Court has missed an opportunity to abolish the doctrine altogether for some very good reasons. The immunity is unique, it is advantageous to a specialised group who are exposed to the elitist protection afforded under its umbrella, and the reasons for maintaining it in a contemporary Australia are tenuous and unpersuasive. 

The immunity has now been abandoned in New Zealand, England and Wales. Indeed the appellants in Attwells argued that the Court should follow in the footsteps of other common law jurisdictions and abolish the immunity altogether, an argument that was ultimately rejected by the High Court. 

In the decision of Attwells, the High Court declined to reconsider its earlier decisions in Giannarelli v Wraith [1988] HCA 52 and more recently in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.  

A fundamental principle behind the immunity, articulated in Attwells and affirmed by Lepore, is that legal practitioners attract the protection through the “participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power”. In addition, the quelling of the controversy needs to be accompanied by finality, and if a lawyer was to be sued for their conduct in a case, the finality of the decision may be compromised. 

Kirby J, in his dissenting judgment in D’Orta, could not understand why Australian courts were not only preserving the binding legal rule, but expanding it to cover advice provided by professionals out of court. What is found to be a most compelling argument against maintaining or expanding the immunity, as articulated by Kirby J in D’Orta, is the idea that the immunity effectively “reduces equality before the courts …” which, in turn, “is capable of breeding contempt for the law”. 

McHugh J, in his reasons in D’Orta, attempted to set out examples of other professions to which different types of immunity attach to support the argument that the immunity attaching to legal professionals is not unique and does not create an inequality. The examples provided are unconvincing and Kirby J insists that the comparisons cannot be maintained for want of the same proximity and reliance that is inherent in the lawyer-client relationship.  

One comparable relationship may be between doctors and patients – a relationship touched upon by Lord Steyn in his reasoning in Arthur J S Hall & Co v Simons [2002] 1 AC 615. Like lawyers, doctors owe duties beyond those owed to their clients, and duties which may, on occasion, conflict with their duties to the client. They are responsible to a higher code. Like lawyers, they swear oaths in respect of upholding that code. 

Do doctors receive an immunity for their participation as a medical officer in the quelling of a medical ailment? What is so special about this relationship between a lawyer and a client that warrants the attraction of the immunity? The answer: nothing. 

Lepore is the last on the list of decisions since Giannarelli, where the High Court had an opportunity to abolish a doctrine which compromises the public’s confidence in the legal system, but did not. 

Wilson J in Giannarelli described the immunity as integral in conserving public confidence in the administration of justice. What could possibly undermine public confidence in the administration of justice more than affording a special protection to people who the public perceive as playing a heightened role in controlling the administration of justice, but not affording that same protection to the public who have no choice but to pursue their grievance through the same administration.  

The immunity should be abolished and if our highest court won’t do it, the legislature should. 

Alexander Hickson is a professional negligence solicitor at Shine Lawyers.

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