The High Court has allowed two appeals against a decision of the New South Wales Court of Appeal on advocates’ immunity. 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 claimed the respondent lawyers rejected the offer without seeking 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 appellants contended 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. Following the decision in Attwells, the first respondent consented to orders allowing the appeal; the second respondent contended that Attwells could be distinguished here, or, alternatively, the decision should be reopened (see at [18]).

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 (see at [40]).

The Court unanimously allowed the appeal. Edelman J delivered the main judgment, with Kiefel CJ, Bell J, Gageler J and Keane J stating their agreement, and Nettle J and Gordon J both agreeing with qualifications.

Edelman J held that the reasoning of the majority in Attwells could not be distinguished from this case and that it ought to apply here, and secondly that Attwells should not be reopened (at [18]). After reviewing the authorities leading up to Attwells and the joint reasons of the majority in that case (see at [28]ff), Edelman J rejected the respondent’s central contention for distinguishing Attwells, namely that the appellant’s negligence action might depart from the views of the NSWDC and NSWCA in their judgments in the personal injury proceedings (specifically, that the respondents might use  the adverse findings about the appellant’s credibility to explain the discrepancy between the settlement offer and the judgment sum): at [33]. Edelman J rejected this possibility of any challenge along these lines: any assessment about the reasonableness of the advice given by the respondents will be made with reference to the time it was given, not following the NSWDC’s decision, and that assessment would not involve any consideration of the NSWDC’s judgment or assessment of the appellant’s credibility (at [34], and see [35]). Consequently, the reasoning in Attwells required the appeal be allowed: at [36].

Edelman J then rejected the second respondent’s alternative submission that Attwells be reopened in part (at [37]). That submission did not refer to any of the usual principles the High Court considers when deciding whether to reopen an earlier decision, but was also ‘premised upon an illusory distinction’ (at [38], emphasis in original):

In relation to work done out of court, there is no real distinction between work done which leads to a decision affecting the conduct of the case in court and work done affecting theway that case is to be conducted at a hearing. A decision affecting the way that a case is conducted is the principal method, or perhaps the only method, by which an advocate affects the conduct of a case in court.

Even if this distinction could be drawn, contra the respondent’s contentions, that distinction was not supported by the reasoning in D’Orta or the passage from Mason CJ in Giannarelli v Wraith [1988] HCA 52: at [39]. As with the first appeal, the second appeal was allowed and remitted to the NSWDC.

Nettle J agreed with Edelman J on the central question of the application of Attwells, but disagreed on the issue of the possibility of a challenge to the findings of the NSWDC (at [6]):

Where an advocate’s advice to a plaintiff to reject an offer of settlement of the plaintiff’s claim results in the claim proceeding to a judgment which is less favourable than the offer, a later claim by the plaintiff that the advocate was negligent in so advising will call into question whether the advocate had a reasonable basis to advise rejection of the offer. I remain of the view I expressed in Attwells that, where that occurs, it is likely to result in the re-litigation of issues that were determined at trial, including the strength of the plaintiff’s claim; the weight to be given to evidence, taking into account considerations of credibility and reliability of witnesses; and the correct application of legal principle and authority.

While the assessment of reasonableness of advice will take place at the time of the advice, it is ‘not improbable’ that one party may attempt to demonstrate how things appeared, or should have appeared, at that point by reference to the situation at the end of the trial (at [7]). And while it is not clear that either respondent intends to raise this point, the possibility that they might in the negligence claim cannot be excluded (at [8]).

Gordon J likewise agreed with Edelman J on the central question of the application of Attwells and also agreed with the additional reasons of Nettle J, noting that they were consistent with the view that her Honour had expressed in Attwells (at [10]–[11]). Gordon J emphasised that a point left open by the majority in Attwells — that it was ‘not necessary to determine whether the [advocate’s] immunity attaches only to the kinds of decisions which a lawyer charged with the conduct of a case in court may make without instructions from the client‘ (at [12] emphasis added by Gordon J) — was not decided here either: because the advocate’s immunity does not apply, and because there is yet to be a trial of the appellant’s claims against his lawyers (see [13]ff), the Court cannot and should not express any concluded view on them (at [16]).