Yesterday, in Attwells v Jackson Lalic Lawyers Pty Limited  HCA 16, a majority of the High Court upheld the appeal of a man who wanted to sue his lawyers for negligence over advice they gave him that led him to settle a dispute about a bank guarantee that ended up being very costly for him. However, while refusing to extend advocates’ immunity to work that leads to an out-of-court settlement, the Court also unanimously refused to reopen two earlier decisions where majorities of previous High Court benches had held that advocates are generally immune from civil actions concerning the advice they give in relation to court proceedings that proceed to judgment. While yesterday’s entire ruling will surely be closely studied by private lawyers, a point of more general significance is the Court’s reasons for not reconsidering its earlier decisions. As the Court noted yesterday, it has ‘undoubted authority’ to overrule itself, a power it last exercised in 2013 (as discussed here by Katy Barnett).
However, that doesn’t mean that it will overrule itself, even in situations where the current Court would now develop the law differently. Yesterday’s decision unanimously endorsed the views of Griffith CJ a century ago when, in refusing to overrule an earlier decision about the High Court’s power to order a writ of prohibition against the federal industrial court, he said that the power to overrule:
should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow; not, I think, upon a mere suggestion that some or all of the members of the later Court might arrive at a different conclusion if the matter were res integra. Otherwise there would be grave danger of a want of continuity in the interpretation of the law.
Accordingly, yesterday’s decision considered whether the earlier decisions were ‘manifestly wrong’ and held that they weren’t, holding that a review of the most recent ruling a decade ago is:
sufficient to demonstrate that, contrary to the appellants’ argument for abolition, there is a clear basis in principle for the existence of the immunity. As to the soundness of the decision in point of authority, the statement of the common law immunity in D’Orta (and Giannarelli) reflects what had been established as the law in the United Kingdom before the change wrought by the decision of the House of Lords in Arthur J S Hall v Simons. The common law of Australia, as expounded in D’Orta and Giannarelli, reflects the priority accorded by this Court to the values of certainty and finality in the administration of justice as it affects the public life of the community.
This ruling suggests that, as a general rule, the current Court does not regard the fact that overseas courts have overruled their own decisions (including ones relied upon by the High Court in its earlier decisions) as a sufficient reason to reconsider its own decisions, and nor is the Court inclined to even review what the other courts said in reaching its judgment. Such a stance certainly bodes ill for next week’s attempt by some criminal defendants to ask the Court to review its earlier decisions on the criminal law of complicity in light of the UK Supreme Court’s recent holding that the common law had taken a ‘wrong turn’.
In its previous rulings, the Court gave two rationales for advocates’ immunity: the special nature of advocacy and the need for finality in (adjudicated) litigation. Yesterday’s ruling provides a third reason. The change the common law on immunity now, the Court said:
would generate a legitimate sense of injustice in those who have not pursued claims or have compromised or lost cases by reference to the state of the law as settled by these authorities during the years when they have stood as authoritative statements of the law. An alteration of the law of this kind is best left to the legislature.
Surely, though, the same consequences would follow if the legislature changed the law; one difference is that any grievance would be laid at the enacting legislature’s doorstep, rather than the Court’s (either present or past). The High Court’s approach to changing the common law differs sharply from that of the UK Supreme Court and the Privy Council, which earlier this year refused to leave repairing the common law of complicity to the legislature because that ‘the doctrine of secondary liability is a common law doctrine… and, if it has been unduly widened by the courts, it is proper for the courts to correct the error’. The current UK approach is consistent with that of Isaacs J’s dissent in the judgment from over a century ago, where he said that it is:
the duty of this Court to correct an erroneous interpretation of the fundamental law… I will only add that the opposite view would make us guardians, not of the Constitution, but of existing decisions, right or wrong.
I wonder whether,in due course,this proves a pyrrhic victory for the appellant.I say that on the basis that the trial Court may well find that had the correct advice been given,the appellant would still have entered into the settlement agreement,and the incorrect advice was thus not the cause of the loss.