Kendirjian v Lepore; Kendirjian v Conomos

The High Court has made orders by consent between the appellant and the first respondent, Lepore, allowing one of two appeals against a decision of the New South Wales Court of Appeal on advocates’ immunity. The proceedings between the appellant and the second respondent, Conomos, appear to be ongoing. The appellant was the plaintiff in a car accident matter. The appellant sued his solicitor (Lepore) and barrister (Conomos) for professional negligence after they informed him that a settlement offer had been made just before trial, but allegedly failed to tell him the amount ($600,000). Instead, the appellant claims the respondent lawyers rejected the offer absent instructions on the basis that it was too low, and advised him that his claim was worth twice as much. Upon the claim succeeding, the appellant received only $300,000. The NSWCA held that the advice or omission to advise was out of court conduct that led to the continuation of Court proceedings, and consequently fell within the scope of advocate’s immunity. After the NSWCA’s judgment, the High Court handed down its judgment in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, holding that advocate’s immunity does not extend to negligent advice that leads to a settlement between the parties. On appeal to the High Court, the appellant contends that the advocate’s immunity principle as stated in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 applies to a failure to communicate the contents of a settlement offer and decision to proceed without instructions, secondly that the NSWCA misapplied the principle stated in D’Orta in holding that the continuation of proceedings fell within the scope of the immunity, and thirdly that following the decision in Attwells each of these issues should be resolved in favour of the appellant.

On 11 November the High Court made orders by consent of the appellant and the first respondent allowing the appeal against the NSWCA’s decision in relation to the first respondent, dismissing the first respondent’s notice of motion in the NSWDC, and remitting the matter to the NSWDC.

High Court Judgment
Result First appeal allowed by consent
High Court Documents Kendirjian v Lepore
Orders by Consent [2016] HCATrans 266 11 November 2016
Special Leave Hearing [2016] HCATrans 141 17 June 2016
Appeal from NSWCA [2015] NSWCA 132 21 May 2015
Trial Judgment, NSWDC
[2014] NSWDC 66 16 May 2014
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About Martin Clark

Martin Clark is an PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor in legal theory, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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