The High Court held another single location hearing of special leave applications last week in Sydney, ahead of a further day of hearings when the Court sits in Perth this week. Last Friday, the Court granted leave in just one case, while refusing leave in all others, including yet another matter addressing the Court’s trilogy of rulings on accusatorial justice, and a case addressing a major divergence between NSW and Victorian courts on the interpretation of the so-called ‘uniform evidence legislation’.

The judgment where leave to appeal has been granted is Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335, which concerns advocates’ immunity from negligence actions. To the disappointment of all except advocates, the High Court has twice affirmed that Australian advocates are immune from negligence actions in respect of their court work. However, with the recent departure of Hayne J from the bench, no current High Court judge has ruled on this controversial question. Since the last High Court ruling, New Zealand’s Supreme Court has abolished the immunity, like the House of Lords did in an earlier ruling.

In this case, the plaintiffs faced action by ANZ to enforce a guarantee they had given for a loan. They allege that an employee of the defendants advised them to settle the action, including telling them that it ‘would not make any difference’ if they also accepted liability for the much larger loan t if the settled amount wasn’t paid. The trial judge, confessing ‘a sense of unease about the possibility that an egregious error may go without the prospect of a remedy’, refused the parties’ application to have him first determine whether the alleged advice would attract advocates’ immunity. The Court of Appeal unanimously ruled that Harrison J was wrong to refuse and also that the alleged advice about accepting contingent liability for the loan, despite not being part of the guarantee litigation, attracted advocates’ immunity because it led directly to the settlement of the litigation.