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Snapshot

  • Recent appellate decisions in New South Wales, Victoria and Western Australia demonstrate that Australian courts continue to apply the principle of advocate’s immunity in different factual contexts, providing a complete defence to solicitors from professional negligence claims where the immunity is engaged.
  • The High Court has shown no inclination to revisit the scope of the immunity defence since its 2016 decision in Attwells v Jackson Lalic Lawyers Pty Ltd.
  • Practitioners need to be mindful that the immunity does not apply to all out-of-court litigious work such as settlement advice or work which has no ‘functional relationship’ with a judicial determination.

The principle of advocate’s immunity is well established in the Australian common law by three decisions of the High Court (see Giannarelli v Wraith [1988] HCA 52, D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 and Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 (‘Attwells’)). These decisions confirm an advocate (including a solicitor) is immune from suit for negligence arising from either the ‘in court’ conduct of the advocate or for work undertaken by the advocate outside of court but which bears upon a judicial determination (either civil or criminal). In Attwells, the High Court held there must be a ‘functional connection’ between the advocate’s out-of-court work and the judicial determination—as opposed to a mere historical connection. The High Court also determined that the scope of the immunity does not cover the negligent advice of a practitioner in relation to the settlement (or non-settlement) of a civil claim.

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