- Young v Hones  NSWCA 337 and White v Forster  NSWSC 1767, illustrate that advocates’ immunity can be a basis to seek summary dismissal of a claim against a practitioner at an interlocutory stage.
- It would seem that in NSW a lawyer’s failure to plead an arguable cause of action or seek additional relief against an existing party to proceedings is protected by the immunity.
- Advocates’ immunity may protect a decision by a practitioner not to sue an additional defendant against whom an alternative remedy lies.
Solicitors advising and acting in professional negligence litigation against other legal practitioners will find interest in the recent decisions of Young v Hones  NSWCA 337 (1 October 2014) and White v Forster  NSWSC 1767 (11 December 2014).
The defendants in White were a solicitor and a barrister who represented the plaintiffs in litigation (‘the earlier proceedings’) in which the plaintiffs had sought and obtained an order against a former business partner for an account for profits.
During the earlier proceedings, the plaintiffs had alleged that a property purchased by the wife of the former business partner was acquired with funds misappropriated by the former business partner. The plaintiffs, however, did not seek an order in relation to the property and were ultimately unable to recover their monies following their former business partner becoming bankrupt.
Fresh proceedings in respect of the property held in the name of the former business partner’s wife were dismissed on the ground that the tracing claim, which could and should have been pleaded as an alternative remedy in the earlier proceedings, was now issue estopped.
The plaintiffs from the earlier proceedings sued the solicitor and the barrister alleging negligence, including the failure to join the wife as a defendant to the earlier proceedings and to seek a remedy of tracing.
With agreement of the parties, the Court in White took the interlocutory step of determining, on the pleadings, whether the alleged negligence fell within the scope of advocates immunity.
The claim against the solicitor and barrister was summarily dismissed.
To understand this outcome one needs to look at the previous High Court authority on advocates’ immunity.