By Malcolm Cameron -
Snapshot
- In the recent decision of Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 (4 May 2016), the High Court of Australia upheld the common law immunity from suit which is available to an advocate.
- The Court held that the immunity is only attracted where there is a ‘functional connection’ between the advocate’s (allegedly negligent) work and the judge’s decision in a case.
- The Court’s decision means that advice leading to a settlement agreed between the parties is not generally protected by the immunity from suit.
For the third time in as many decades, the High Court has upheld the immunity from suit which is available to an advocate.
As the Court has now made clear in Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 (4 May 2016) (‘Attwells’), the immunity is only attracted where there is a ‘functional connection’ between the advocate’s work and the judge’s decision in a case.
Where the work of the advocate leads to an agreement between parties to litigation to settle their dispute, there is not an ‘intimate connection’ between that work and the conduct of the case in court, as required by the authoritative test laid down in the two prior High Court decisions on the immunity: Giannarelli v Wraith (1988) 165 CLR 543 (‘Giannarelli’) and D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (‘D’Orta’).
The protection afforded by the immunity is only invoked where the (allegedly negligent) work of the advocate ‘has contributed to the judicial determination of the litigation’ (Attwells at [5]-[6]).
