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  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.
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Is it just me or was Dr Bell quite impolite in constantly cutting off Bell J during the course of argument?
Given that Giannarelli and D’Orta both affirmed the existence of the immunity (the latter 6-1), it is difficult to see why the High Court would take this case on unless there were at least some judges who considered that it was worth revisiting the scope or indeed existence of the immunity.
Should be a very interesting case.
It’s hard to judge from the transcript, but it does seem like a robust exchange. Personally, I think that’s a good thing (speaking as someone who suspects that the value of oral hearings before the High Court is overstated.)
And, yes, it is hard to see why the case would be taken unless overturning at least some of the immunity is on the cards. However, expectations have been dashed on this sort of thing before.
You may be interested in a paper that I wrote on the applicability of the ‘intimate connection’ test for advocates’ immunity to out of court settlements. It was published in the Journal of Civil Litigation and Practice last year and I’ve put the original manuscript version of the paper and citation details on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2644304