barrister's immunity article scott lang
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Scott Lang article on Barrister's ImmunityTRANSCRIPT
Vol 4(1) Queensland Law Student Review 47
Deconstructing D’orta-Ekenaike:
A Critique of Justifications Provided for
Advocates’ Immunity by the High Court
SCOTT LANG *
Abstract
Advocates’ immunity was either never recognised or has been abolished in every common law jurisdiction except Australia. In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, the High Court of Australia not only affirmed that barristers, solicitor advocates and instructing solicitors remain immune from suit but also indicated that should the immunity be abolished, the Court will impose extremely high thresholds for proving negligent advocacy. This article argues that none of the reasons given by the Court are sufficient to justify retaining the immunity or the imposition of such stringent thresholds.
* BA/LLB candidate, The University of Queensland. The author would like to express his sincere thanks to Dr Francesca Bartlett for her helpful guidance on this project.
Volume 4 2011 Number 1
48 Queensland Law Student Review (2011)
Deconstructing D’orta-Ekenaike:
A Critique of Justifications Provided for Advocates’
Immunity by the High Court
SCOTT LANG
Contents
1. Introduction .............................................................................................................................................. 49
2. Legal Basis of Advocates’ Immunity in Australia ......................................................................... 49
2.1 Lack of Contract to Public Policy Considerations ........................................................................ 49
2.2 Giannarelli v Wraith: Australian Immunity Based on Public Policy ..................................... 50
2.3 D’Orta-Ekenaike v Victoria Legal Aid: Public Policy and the Finality Principle ............... 51
2.4 Conclusion on the Legal Basis of Advocates’ Immunity in Australia ................................... 53
3. Public Policy Considerations ............................................................................................................... 54
3.1 The ‘Cab-Rank’ Principle ........................................................................................................................ 54
3.2 Difficulty in Determining Causation .................................................................................................. 55
3.3 Analogy with Immunities Granted to Participants in Court Proceedings .......................... 58
3.4 Maintenance of Advocates’ Duty to the Court ............................................................................... 58
4. The Finality Principle ............................................................................................................................ 60
4.1 Logical Flaws in the Finality Principle .............................................................................................. 61
4.2 Negligence Proceedings against Advocates Do Not Inevitably Involve Re-litigation ........................................................................................................................................................ 62
4.3 Experience in Other Jurisdictions ....................................................................................................... 63
4.4 Advocates’ Liability as an Exception to the Finality Principle ................................................ 64
5. Alternate Methods of Protecting Finality ....................................................................................... 65
6. Relevance of the Elements of Negligence ........................................................................................ 66
6.1 Connection between Justification for Immunity and Potentially Restricted Liability .......................................................................................................................................................... 66
6.2 Duty and Standard of Care..................................................................................................................... 67
6.3 Causation and Damage ............................................................................................................................ 68
7. Conclusion .................................................................................................................................................. 69
Vol 4(1) Queensland Law Student Review 49
1. Introduction
Barristers, solicitor-advocates and their instructing solicitors remain immune from civil suit in
Australia for the conduct of a case in court, for work done out of court that is intimately
connected with the conduct of the case in court and work done out of court that leads to a
decision affecting the conduct of the case in court.1 In retaining the immunity, the High Court
expanded a common law rule that has been abolished virtually everywhere else in the world.
The fact that the position under Australian law is unique does not mean it is wrong. However, ‘it
certainly suggests the need for justification by reference to identified errors of so many other
courts and legal systems or proof of such local divergences as warrant Australian law taking its
own peculiar direction.’2
This article will argue that advocates’ immunity from negligence should be abolished in
Australia, as it no longer has sound legal foundations. Advocates’ immunity is currently based
upon public policy considerations concerned with the administration of justice and the finality
principle. Neither these public policy considerations nor the finality principle can sufficiently
justify retaining the immunity. Significantly, the finality principle is logically flawed and
undermined by experiences in other jurisdictions, and can be protected by more specialised
rules than blanket immunity. The article will suggest that finality could be ensured by modifying
and developing existing common law rules, in particular, the abuse of process rules. It will also
go further and argue that for abolition of the immunity to be effective, the courts must ensure
that the tests and thresholds for negligent advocacy do not excessively restrict liability and
prevent clients suing their advocates. This is significant because the High Court has already
indicated that should advocates’ immunity be abolished, it will simply impose more difficult
standards to prove negligence, in particular for causation.3
2. Legal Basis of Advocates’ Immunity in Australia
2.1 Lack of Contract to Public Policy Considerations
The legal foundation of advocates’ immunity has changed significantly at common law in both
England and Australia. In the middle ages, advocates could be sued in contract. Gradually, the
English common law embraced the principle of Roman law that an advocate could not sue for
fees or be sued.4 Advocates’ immunity was originally founded on the lack of contract between
barristers and their clients.5 When the House of Lords held that persons could be liable in
negligence for advice and misstatement, regardless of whether there was a contractual
relationship,6 the lack of contract between an advocate and client could no longer justify
1 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 31 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 33 (McHugh J), 117 (Callinan J) (‘D’Orta-Ekenaike’). The joint majority stated that they considered the two branches of out-of-court work to mean the same thing.
2 Ibid 71 (Kirby J). His Honour dissented, holding that the immunity should not be extended to include instructing solicitors.
3 Ibid 27 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 54-55 (McHugh J). 4 Lai v Chamberlains [2007] 2 NZLR 7, 49 (Tipping J) (‘Lai’). 5 Re Le Brasseur and Oakley [1896] 2 Ch 487, 494. 6 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The High Court of Australia held to the
same effect in the landmark case of Hawkins v Clayton (1988) 164 CLR 539.
50 Queensland Law Student Review (2011)
immunity. Soon afterwards, the House of Lords placed the immunity on its modern footing,
holding in Rondel v Worsley7 that the immunity was justified by various public policy
considerations related to the administration of justice. However, Lord Reid famously noted that
‘public policy is not immutable,’8 allowing for future modification and abolition of the immunity
if the public policy considerations on which it was based no longer warranted such protection.
2.2 Giannarelli v Wraith: Australian Immunity Based on Public Policy
In Australia, immunity from civil suit was first recognised by a four-three majority of the High
Court in Giannarelli v Wraith.9 Mason CJ, Wilson, Brennan and Dawson JJ held that the immunity
was justified by the various public policy considerations that were essential to the efficient
administration of justice. The minority of Deane, Toohey and Gaudron JJ based their decision on
a matter of statutory interpretation, finding it unnecessary to decide the position at common
law. However, in a brief judgment Deane J stated that the public policy considerations relied
upon by the majority to uphold the immunity could not ‘outweigh or even balance the injustice
and consequent public detriment involved in depriving a person ... of all redress under the
common law.’10
Each of the majority delivered separate judgments. Mason CJ held that the immunity was based
upon two public policy considerations: the need to maintain the advocates’ duty to the court and
the need to prevent collateral attacks upon judgments. His Honour stated that advocates must
exercise independent forensic judgment in the presentation of a case. Exposure of counsel to
liability would result in less independence and ‘would create a real risk of adverse consequences
for the efficient administration of justice. Litigation would tend to become more lengthy, more
complex and more costly.’11 Mason CJ also stated the immunity was based upon the need to
prevent collateral attack on judgments by subsequent negligence proceedings against the
advocate, as this would ‘undermine the status of the initial decision’ and destroy ‘public
confidence in the administration of justice.’12
Wilson J also held that the immunity was based upon public policy considerations necessary for
the efficient administration of justice. His Honour stated that the threat of litigation would affect
the exercise of the independent forensic judgment of advocates, resulting in ‘the instinctive
motivation of counsel to err on the side of caution by bending to the client’s interests .... The
administration of justice would be at risk.’13 Wilson J stated that the immunity from defamation
granted to participants in legal proceedings supported immunity for advocates from negligence
by analogy.14 His Honour also stated that if the immunity was abolished, judgments given in the
original proceedings would be ‘tarnished’ by contrary findings in a later negligence action
against the advocate, which had ‘a capacity to bring the administration of justice into
7 [1969] 1 AC 191 (‘Rondel’). 8 Ibid 227. 9 (1988) 165 CLR 543 (‘Giannarelli’). 10 Ibid 588. His Honour did not elaborate or give reasons for this statement. 11 Ibid 557. 12 Ibid 558. 13 Ibid 573. 14 Ibid. See also 557 (Mason CJ).
Vol 4(1) Queensland Law Student Review 51
disrepute.’15 Other justifications for the immunity mentioned by Wilson J included the difficulty
in proving causation and the fact that key witnesses, such as judges and jurors, could not be
called to give evidence.16
Brennan J agreed with the reasoning of Mason CJ. However, his Honour specifically mentioned
that the immunity was justified by the need to maintain the independent forensic judgment of
advocates and implied it was also necessary to ensure continued observance of the ‘cab-rank’
principle.17 Dawson J held that abolition of the immunity would damage the independent
forensic judgment of advocates, with the result that ‘the efficient conduct of the business of the
courts would be likely to be impaired.’18 His Honour also held that subsequent negligence
proceedings against an advocate would constitute a collateral attack upon the original judgment
and that ‘[n]othing could be more calculated to destroy confidence in the processes of the courts
or be more inimical to the policy that there be an end to litigation.’19 Lastly, Dawson J justified
advocates’ immunity by analogy with the immunity against defamation actions granted to
participants in court proceedings.20
As this discussion illustrates, the range of reasoning within the majority judgment provides
various different public policy considerations upon which advocates’ immunity is founded.
2.3 D’Orta-Ekenaike v Victoria Legal Aid: Public Policy and the Finality Principle
Following the decision in Giannarelli, the House of Lords and the New Zealand Court of Appeal
abolished the immunity on the grounds that the public policy considerations identified in Rondel
no longer required such protection.21 Contrary to this trend, the High Court of Australia upheld
advocates’ immunity in D’Orta-Ekenaike v Victoria Legal Aid by a six-one majority and expanded
it to include instructing solicitors. Furthermore, a majority shifted the legal foundation of the
immunity from the various public policy considerations identified in Giannarelli to the finality
principle. Gleeson CJ, Gummow, Hayne and Heydon JJ delivered a joint judgment that based the
immunity on the finality principle, while McHugh J and Callinan J delivered separate judgments
referring to various public policy considerations. Kirby J dissented, arguing neither the finality
principle nor the public policy considerations identified by the majority could justify the
extension of the immunity.
The joint majority judgment held that advocates’ immunity was a rule necessary to give effect to
the finality principle. Their Honours emphasised that the courts are the third branch of
government, the function of which is the final quelling of controversies.22 Finality requires ‘that
controversies, once resolved, are not to be reopened except in a few narrowly defined
15 Ibid 574. 16 Ibid. 17 Ibid 579-80. 18 Ibid 594. 19 Ibid 595. 20 Ibid 596. 21 Arthur J S Hall v Simons [2002] 1 AC 615 (‘Hall’); Lai v Chamberlains [2005] 3 NZLR 291, affd [2007] 2
NZLR 7 (Supreme Court of New Zealand). 22 D’Orta-Ekenaike (2005) 223 CLR 1, 16-17.
52 Queensland Law Student Review (2011)
circumstances.’23 The joint majority held that a subsequent negligence action against an
advocate would inevitably involve re-litigation of the original matter to prove causation.24 As
such, the immunity is required to preserve finality of judgments.25 Their Honours also held that
abolishing advocates’ immunity was inconsistent with the continued existence of judicial and
witness immunity, as any re-litigation could not examine the contribution of judges or witness
and would thus be ‘inefficient and anomalous.’26
McHugh J held that the immunity was based on two considerations. Firstly, there will be great
difficulties in proving causation in negligence actions when judges and jurors cannot be called to
give evidence.27 Secondly, his Honour expressly agreed with the joint majority regarding the
finality principle28 and held the immunity was necessary because of the damage that
inconsistent verdicts would have on public confidence in the judicial system if re-litigation was
allowed.29 His Honour also seemed to imply that the immunity was required to maintain the
independent Bar and because advocacy is a unique profession.30 Callinan J held that the
immunity was based on difficulties in proving causation in negligence actions,31 the desirability
of finality in litigation32 and damage to the ‘cab-rank’ principle.33 His Honour also endorsed the
various reasons adopted in Giannarelli34 and the reasons of the joint majority regarding finality
and analogous immunities.35
Despite the joint majority declaring the basis of the immunity was public policy,36 Hinchy argues
that their Honours did not base their findings regarding the need to protect finality on public
policy considerations, but on legal principle.37 The reasoning process of the High Court shows
that
[t]he joint majority approached the issue of adverse consequences as a consequentialist argument to be considered within the context of the overriding principle of finality and the various rules related to this principle such as res judicata and issue estoppel. [This] constitutes principle-based reasoning even if the potential consequences are referred to as
23 Ibid 17. 24 Ibid 20. 25 Ibid 20-21. 26 Ibid 21. 27 Ibid 63. 28 Ibid 55-56. 29 Ibid 63. 30 Ibid 38-39. 31 Ibid 117. 32 Ibid 117, 120. 33 Ibid 119. 34 Ibid 116. 35 Ibid 120. 36 Ibid 16. 37 Russell Hinchy, ‘Rejection of Advocates’ Immunity’ [2006] New Zealand Law Journal 369, 369-70;
Russell Hinchy, ‘Judicial Method and Advocates’ Immunity in the High Court of Australia and the House of Lords’ (2006) 13(1) E Law – Murdoch University Electronic Journal of Law 187, 194-5 <https://elaw.murdoch.edu.au/issues/2006/1/eLaw_Hinchy_13_2006_11.pdf> at 10 December 2008.
Vol 4(1) Queensland Law Student Review 53
policy factors. The labelling of the potential consequences as “policy factors” is not the issue.38
If Hinchy’s reading is correct, this distinction is significant because it shows that the joint
majority consider advocates’ immunity to be a rule necessary to give effect to the legal principle
of finality. Regardless of the theoretical position, it is clear from the joint majority’s reasoning
that the need for finality is the primary justification for advocates’ immunity. However, this does
not mean that other public policy considerations cannot also justify the immunity. While the
joint majority did not expressly conclude that other public policy considerations could also
found advocates’ immunity, their Honours did not expressly reject this possibility.
2.4 Conclusion on the Legal Basis of Advocates’ Immunity in Australia
Given the divergent reasoning in both cases, discerning the legal basis for advocates’ immunity
in Australia is difficult. In D’Orta-Ekenaike, both McHugh J and Kirby J stated that Giannarelli had
no ratio decidendi as the majority justices relied on different public policy considerations to
justify the immunity.39 Furthermore, as the High Court in D’Orta-Ekenaike did not overrule
Giannarelli, the reasoning in both cases is authoritative, which is significant given ‘it does differ
in some material respects.’40
In D’Orta-Ekenaike, although the joint majority did find the finality principle to be the ‘central
justification’41 for the immunity, this statement clearly allows for subordinate justifications.
Indeed, the joint majority expressly mentioned another justification: the difficulty in proving
negligence given the continued existence of judicial and witness immunity.42 Moreover, McHugh
and Callinan JJ accepted the finality principle as a justification for advocates’ immunity along
with various other public policy considerations.43 It follows that the legal foundation for
advocates’ immunity in Australia is the finality principle, supplemented by public policy
considerations: the need to maintain advocates’ duty to the court, analogy with immunities
granted to other participants in court proceedings, the difficulty in proving causation and
ensuring the continued observance of the ‘cab-rank’ principle.
Interestingly, since 1969, the basis of the immunity has moved from the inability of barristers to
sue for fees, to public policy alone and then to the finality principle supplemented by public
policy. Elias CJ commented on this in Lai v Chamberlains, stating that ‘[w]hat is striking is the
shifting emphasis both within Courts and over the 40 years since the immunity has been put on
its modern footing. Such shifts do not suggest sound foundations.’44 This article argues that none
38 Hinchy, ‘Judicial Method and Advocates’ Immunity’, above n 37, 195. 39 (2005) 223 CLR 1, 46-49 (McHugh J), 83 (Kirby J). 40 Chris Bleby, ‘Immunity from Suit: Barristers and Witnesses’ (Paper presented at the Law Society of
South Australia CPD Programme, Adelaide, 21 February 2006) 2. In particular, the majority in Giannarelli placed much more weigh on public policy considerations generally, and the need to preserve finality as a public policy consideration.
41 (2005) 223 CLR 1, 27. 42 Ibid 21. 43 Some of which were expressly rejected by the joint majority (see below). 44 [2007] 2 NZLR 7, 21.
54 Queensland Law Student Review (2011)
of the public policy considerations proffered in Giannarelli or D’Orta-Ekenaike are sufficient to
justify advocates' immunity. Consequently, advocates’ immunity should be abolished.
3. Public Policy Considerations
3.1 The ‘Cab-Rank’ Principle
In Australia, barristers are obliged to accept a brief in their area of expertise if they would be
available to work and an acceptable fee is offered.45 This is known as the ‘cab-rank’ principle.
Brennan J implied in Giannarelli that abolition of advocates’ immunity would mean barristers
would no longer continue to accept work according to the ‘cab-rank’ principle.46 Callinan J in
D’Orta-Ekenaike was adamant ‘that the removal of the immunity would intrude upon and
diminish the utility of the valuable cab rank rule.’47 Essentially, the reasoning is that barristers
would refuse to act for unscrupulous clients or those with low prospects of success because they
would fear being sued. This would damage the administration of justice because it would make
access to competent advocates more difficult. However, the ‘cab-rank’ principle cannot justify
advocates’ immunity because its practical importance to the administration of justice is low, the
principle applies exclusively to barristers and it has statutory force in the form of professional
rules that are enforceable by professional discipline proceedings.
In practice, the importance of the ‘cab-rank’ principle to the administration of justice is limited.
Various exceptions to the ‘cab-rank’ principle are recognised by the professional rules, requiring
or giving barristers discretion to decline a brief.48 Elias CJ dismissed the ‘cab-rank’ principle as a
justification for the immunity and noted that other professions have a duty to provide services
to all, but they do not enjoy immunity from suit.49 Lord Steyn stated that it ‘is not likely that the
rule often obliges barristers to undertake work which they would not otherwise accept.’50 Lord
Hope added ‘its significance in daily practice is not great.’51 The common judicial position is that
although as a professional ethic the ‘cab-rank’ principle is important, it does not compel
barristers to accept briefs they would not ordinarily accept. Thus, advocates’ immunity cannot
be justified on the ‘cab-rank’ principle because its importance to the administration of justice is
limited.
As well as having limited importance, the ‘cab-rank’ principle cannot justify immunity because it
applies exclusively to barristers and not solicitor-advocates or instructing solicitors. The limited
45 Barristers Rules (ACT) r 85; Barristers’ Rules (NSW) r 85; Barristers’ Conduct Rules (NT) r 85; Legal Profession (Barristers) Rule 2007 (Qld) r 89; South Australian Barristers’ Rules (SA) rr 4.3-4.4; Professional Conduct Guidelines (Tas) para 1; Practice Rules (Vic) rr 86-7; Bar Association Conduct Rules (WA) r 77. These rules were sourced from G E Dal Pont, Lawyers’ Professional Responsibility (3rd ed, 2006).
46 (1988) 165 CLR 543, 580. 47 (2005) 223 CLR 1, 119. 48 See, eg, Legal Profession (Barristers) Rule 2007 (Qld) rr 91-97. For example, r 97(d) gives barristers the
discretion to refuse a brief where there is a real possibility they would be required to cross-examine or criticise a friend or relation.
49 Lai [2007] 2 NZLR 7, 34. Her Honour did not give an example, but the commonly cited example is that of doctors: see, eg, Hall [2002] 1 AC 615, 690 (Lord Hoffman).
50 Hall [2002] 1 AC 615, 678. 51 Ibid 714. See also 696-7 (Lord Hoffman) and 740 (Lord Hobhouse).
Vol 4(1) Queensland Law Student Review 55
class of advocates to which the ‘cab-rank’ principle relates means it is ‘of marginal relevance’
and ‘does not provide a sufficient basis to justify the existence of the common law immunity.’52
Put simply, it can only justify an immunity limited to barristers, which would be flawed, as it is
the substantial duties performed by the advocate from which the immunity derives, not the form
of their title.53 Mason CJ in Giannarelli stated that it ‘is the function performed, not the label
attached, which gives rise to the limited immunity.’54 Therefore, the ‘cab-rank’ principle cannot
found advocates’ immunity because it applies to a limited class of advocate.
Furthermore, advocates’ immunity is not necessary to protect continued observance of the ‘cab-
rank’ principle given that the principle is a statutory obligation enforceable by professional
discipline proceedings. Rule 89 of the Legal Profession (Barristers) Rule 2007 (Qld) codifies the
‘cab-rank’ principle in Queensland and similar provisions exist in all States and Territories.55
Barristers are unlikely to disregard the ‘cab-rank’ principle, as doing so could lead to
professional discipline. Moreover, the courts have inherent power to discipline advocates. Given
that there is a specific obligation to obey the ‘cab-rank’ principle backed by professional
discipline proceedings, the indirect incentive provided by advocates’ immunity is superfluous.
As a result, despite the claims of Brennan J and Callinan J, the ‘cab-rank’ principle cannot justify
retaining advocates’ immunity. The relative importance the principle has for the administration
of justice is low. It applies exclusively to barristers and not solicitor-advocates or instructing
solicitors, all of whom enjoy immunity from suit. Lastly, the principle is contained in
professional rules and can be enforced by professional discipline proceedings.
3.2 Difficulty in Determining Causation
Successful negligence actions against advocates must show that it was a breach of the duty of
care that caused the loss to the client. Wilson J in Giannarelli held that determining causation,
particularly where there was a jury trial, would ‘be a mind-boggling exercise, piling “speculation
on speculation”.’56 McHugh J in D’Orta-Ekenaike stated that determining causation would be an
‘unreality’ and only involve ‘guesswork.’57 Callinan J noted that if judges and jurors cannot be
called as witnesses, causation would be ‘difficult to explore fully and satisfactorily.’58 The joint
majority also recognised this, stating that no negligence action could examine the contribution of
52 D’Orta-Ekenaike (2005) 223 CLR 1, 15. See also Giannarelli (1988) 165 CLR 543, 594 (Dawson J). 53 Note also that the majority in D’Orta-Ekenaike (2005) 223 CLR 1 expanded advocates’ immunity to
include instructing solicitors. The ‘cab-rank’ principle does not apply to solicitors. 54 (1988) 165 CLR 543, 559. See also Dawson J, who held that ‘if the reason for that immunity lay in
public policy ... then there could be no justification for denying the same immunity to solicitors when performing the same functions as those performed by barristers’: at 592. See further D’Orta-Ekenaike (2005) 223 CLR 1, where the joint majority stated ‘there is no sound basis for distinguishing between advocates according to whether the advocate does or does not have a contract with the client’: at 15.
55 See above n 45. 56 (1988) 165 CLR 543, 574, quoting Rondel v Worsley [1969] 1 AC 191, 250. 57 (2005) 223 CLR 1, 63. 58 Ibid 117. Wilson J in Giannarelli (1988) 165 CLR 543, 574 also recognised the inability to call judges
and jurors.
56 Queensland Law Student Review (2011)
judge or jury, leading to ‘inefficient and anomalous’ litigation.59 Indeed, the significance given to
these arguments by the High Court is an indication that if advocates’ immunity is abolished, the
Court could simply interpret the causation provisions of the Civil Liability Acts60 restrictively in
order to impose a difficult threshold for causation, justified on the supposed causal uncertainties
involved in negligent advocacy actions. Nonetheless, the difficulty in proving or determining
causation cannot justify advocates’ immunity for two reasons: there is no clear reason why it
would be especially difficult to determine causation; and determinations of causation are
inherently difficult and would require a degree of ‘guesswork.’61
There is no compelling reason that makes proving causation of loss particularly difficult. Clearly
neither judges nor jurors can be called as witnesses. However, this does not mean that causation
cannot be determined. Indeed, it merely reflects the fact that there is a possibility that key
witnesses will not be competent or compellable in all cases. The client and the advocate could
both give evidence, and the transcript of proceedings could be used to examine the actions of the
advocate and judge. Appellate courts are able to examine the trial transcript and determine that
the flagrant incompetence of counsel caused a miscarriage of justice according to the principles
of Re Knowles.62 Furthermore, by referring to the trial transcripts, appellate courts are also able
to examine the actions of trial judges and determine what these actions caused. In relation to
examining the trial transcript, Cane notes:
It is certainly true that judges and witnesses cannot be sued for anything they do or say in court proceedings; but it does not follow that their words and actions cannot be examined for other purposes, such as determining the cause of a court’s decision.... There is no obvious reason why such a course of action should be acceptable in appeal proceedings, but not in a negligence claim against an advocate.63
In R v D’Orta-Ekenaike,64 for example, the Court of Appeal determined on the basis of the trial
transcript that the inadequate direction by the trial judge regarding the guilty plea was the cause
of D’Orta-Ekenaike’s conviction. Moreover, in the earlier case Mason CJ was able to determine
that it was the failure of the Giannarellis’ counsel to object to inadmissible evidence that caused
their convictions. His Honour stated that the evidence ‘was essential to the Crown case. Without
it the Crown could not have succeeded.’65 Transcripts allow courts to determine causation and
59 D’Orta-Ekenaike (2005) 223 CLR 1, 21. Their Honours argued this in relation to the analogy between judicial/witness immunity and advocates’ immunity. However, this point is more relevant to arguments regarding the difficulty of proving causation.
60 Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Civil Liability Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA) s 5C. These pieces of legislation shall henceforth be referred to as the ‘Civil Liability Acts’.
61 Paula Gerber, ‘Burning Down the House to Roast the Pig: The High Court Retains Advocates’ Immunity’ (2005) 28(3) University of New South Wales Law Journal 646, 653.
62 [1984] VR 751. 63 Peter Cane, ‘The New Face of Advocates’ Immunity’ (2005) 13 Torts Law Journal 93, 95 n 15. 64 [1998] 2 VR 140. 65 Giannarelli (1988) 165 CLR 543, 553. The clear implication here is that but for the failure of counsel for
the Giannarellis to object to inadmissible evidence, they would not have been convicted and would not have been imprisoned.
Vol 4(1) Queensland Law Student Review 57
this suggests that there would be no insurmountable difficulty in proving causation vis-à-vis
negligent advocacy.
Similarly, there is also no reason that defending a negligent advocacy action would be especially
difficult. The plaintiff bears the onus of proof in civil matters; if they cannot prove causation on
the balance of probabilities, their claim will fail. McHugh J argued in D’Orta-Ekenaike that there
would still be cases where ‘defence of the claim may be difficult, even though the onus of proof
remains on the plaintiff.’66 His Honour claimed that the negligence action brought by D’Orta-
Ekenaike epitomised such a case. With respect, this argument is unconvincing. Given the
circumstances of the case, the advice given by the lawyers was ‘a justifiable plea bargain tactic.’67
There would have been a strong argument, on the basis of the trial transcripts, that it was the
misdirection by the trial judge rather than his lawyers’ advice that caused D’Orta-Ekenaike’s
loss. Consequently, by using the trial transcripts, the actions of advocates and judges can be
examined and breach of duty and causation of loss can be determined; this means there is no
reason that makes proving, defending or determining causation in a negligent advocacy action
insurmountably difficult.
In addition to being able to use trial transcripts to determine causation, the supposed difficulty
in proving causation cannot justify retaining advocates’ immunity because it is not unique to
negligent advocacy suits. Mere difficulty in proving or defending an action is no foundation for
immunity from suit. As Lord Hoffman noted in Hall, many matters before the courts are difficult
to prove or defend.68 Gerber argues that ‘[a]ll negligence cases, by their very nature, require
courts to engage in some degree of guesswork.’69 The issues that need to be determined by the
tribunal of fact are inherently difficult: questions of intervening acts that break the chain of
causation, questions of contributory negligence and questions regarding what is the cause and
effect of an action. The High Court has noted that conclusions regarding causation are ‘often
reached intuitively’ and ‘without lengthy articulation of reasons.’70 There is nothing unique
about the ‘guesswork’ inherent in proving causation against an advocate. Thus, advocates’
immunity cannot be justified by the difficulty in proving causation, as this is inherent to
determining cause and effect.
It can, therefore, be seen that contrary to the claims of Wilson J, McHugh J and Callinan J, any
difficulties inherent in proving causation do not justify retention of advocates’ immunity. There
is no reason making it especially difficult to determine causation vis-à-vis advocacy when trial
transcripts can be used to examine the actions of advocates and judges. Any difficulty in
determining causation is inherent to the issues being determined, not the particular
circumstances of an advocate. Significantly, these arguments also contradict any claim that
negligent advocacy actions should pass a higher test for causation.71
66 (2005) 223 CLR 1, 64. 67 Gerber, above n 61, 650. 68 [2002] 1 AC 615, 699. 69 Gerber, above n 61, 653. 70 Chappel v Hart (1998) 195 CLR 232, 290 (Hayne J). See also 269 (Kirby J). 71 This will be discussed in greater detail below.
58 Queensland Law Student Review (2011)
3.3 Analogy with Immunities Granted to Participants in Court Proceedings
Judges and witnesses are granted immunity for what they say and do inside a courtroom. Wilson
and Dawson JJ in Giannarelli and Callinan J in D’Orta-Ekenaike all held that advocates’ immunity
was justified by analogy with other immunities granted to these participants in court
proceedings.72 Despite this, the immunities granted to participants in court proceedings cannot
justify retention of advocates’ immunity because advocates are not in an analogous position to
the other participants and these other immunities are founded on public policy considerations
that are not applicable to advocates.
Significantly, there is no analogy between an advocate and judge or witness. Advocates provide
professional services to a client for a fee; the others do not. Advocates have a duty to argue the
case of their client; the others do not.73 Advocates owe a duty of care to the client; the others do
not.74 When these fundamental differences are accepted, the analogy breaks down. The analogy
is based upon circular reasoning; the positions are analogous because all participants in court
proceedings have immunity from suit. However, it is the analogous situation of the various
positions that should justify similar treatment at law, not similar treatment at law that justifies
the analogy. Thus, there is no analogy between advocates and the other participants in court
proceedings.
Not only is there no valid analogy between advocates and the other participants, the public
policy justifications for the immunities are also different. The joint majority in D’Orta-Ekenaike
claimed the basis of all the immunities is the finality principle.75 However, as discussed below,
the finality principle cannot justify advocates’ immunity. Witness immunity is based upon the
need for witnesses to speak freely so that the court’s ultimate decision is fully informed. Judicial
immunity is based both on the need for freedom of speech and the finality principle. While the
free speech justification applies equally to advocates with respect to defamation actions, there is
no reason it should apply to negligent advocacy, as negligent advocacy does not assist the court
to make a fully informed decision. Indeed, advocates’ immunity is the only court participant
immunity that can be pleaded against a negligence claim; the other immunities would never
need to be pleaded because judges and witnesses do not owe a duty of care to the client.76
3.4 Maintenance of Advocates’ Duty to the Court
Advocates owe a duty to the court as well as a duty to the client. The majority in Giannarelli held
that abolishing advocates’ immunity would lead advocates to favour their duty to the client in
order to prevent the client suing them.77 This would lead to prolix during trial, making
unnecessary arguments and extending cross-examination; all of which would make the
72 (1988) 165 CLR 543, 573 (Wilson J), 596 (Dawson J); (2005) 223 CLR 1, 113 (Callinan J). 73 Gerber, above n 61, 652. 74 Lai [2007] 2 NZLR 7, 34 (Elias CJ, Gault and Keith JJ); D’Orta-Ekenaike (2005) 223 CLR 1, 101 (Kirby J);
Hall [2002] 1 AC 615, 679 (Lord Steyn), 698 (Lord Hoffmann); Barbara Hocking and Stewart Muirhead, ‘Forensic Immunity to Negligence Actions: Continuing Challenges for the Common Law’ (2002) 22(1) University of Queensland Law Journal 91, 107-8.
75 (2005) 223 CLR 1, 19. 76 Gerber, above n 61, 652. The exception being expert witnesses. 77 (1988) 165 CLR 543, 557 (Mason CJ), 573 (Wilson J), 579 (Brennan J), 594 (Dawson J).
Vol 4(1) Queensland Law Student Review 59
administration of justice inefficient. Indeed, their Honours suggested that the mere threat of
proceedings would cause these results. Nevertheless, advocates’ immunity cannot be justified on
the need to maintain the duty to the court for various reasons: acting in accordance with the
duty to the court could never amount to negligence, other professions that have conflicting
loyalties do not enjoy immunity, imposition of liability leading to defensive practice affects other
professions and the duty to the court is maintained by the threat of professional sanction, both
formal and informal, as well as the powers of the trial judge.
It is widely accepted that acting in accordance with the duty to the court cannot amount to
negligent advocacy. The duty to the court is paramount; the duties cannot conflict.78 In principle,
therefore, advocates would have no reason to engage in defensive advocacy and favour the
interests of their client above their duty to the court. In addition to this, there are other
professions that owe conflicting duties but do not have immunity from suit. Solicitors, for
example, owe a duty to the court to ensure that the client has complied with the requirements of
disclosure of documents.79 However, solicitors cannot generally claim immunity from suit.
Doctors have conflicting loyalties between their duty to their patient and their duty to ensure
the health of the greater community, but cannot claim immunity from suit.80 Conflicting loyalties
are not unique to the profession of advocacy. Accordingly, the mere existence of the duty to the
court cannot justify advocates’ immunity because there is no conflict of duties and other
professions have conflicting loyalties.
However, many argue that in practice the mere threat of proceedings, regardless of merit, would
encourage defensive advocacy and, therefore, immunity is necessary.81 This reasoning was
dismissed by the joint majority in D’Orta-Ekenaike ‘as not of determinative significance in
deciding whether there is an immunity.’82 Defensive practice resulting from the imposition of
liability upon other professionals has not been considered sufficient justification for immunity
from suit. It cannot be denied that negligence liability has resulted in the defensive practise of
medicine; but it has never been accepted that this justifies immunity from suit for doctors,
despite the increased financial and accessibility costs to the administration of healthcare. Even
Callinan J stated:
Risk of action does no doubt conduce to the defensive practice of a profession, in turn leading to delay and unnecessary expense. That this has not been thought sufficient reason to confer immunity upon other professionals does raise the question whether it should do so in relation to lawyers. Standing alone, it might not.83
78 D’Orta-Ekenaike (2005) 223 CLR 1, 15 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 101 (Kirby J); Giannarelli (1988) 165 CLR 543, 572 (Wilson J), 594 (Dawson J).
79 In Queensland the duty is codified in Uniform Civil Procedure Rules 1999 (Qld) r 226(1). If the solicitor believes the client has made misleading disclosure, they have a duty to withdraw from the case: Myers v Elman [1940] AC 282.
80 Hocking and Muirhead, above n 74, 107. See also D’Orta-Ekenaike (2005) 223 CLR 1, 62 (McHugh J). His Honour cites the case of Harvey v PD (2004) 59 NSWLR 639 as such an example.
81 Giannarelli (1988) 165 CLR 543, 557 (Mason CJ), 573 (Wilson J), 594 (Dawson J). 82 (2005) 223 CLR 1, 16. 83 Ibid 117.
60 Queensland Law Student Review (2011)
Extension of liability leading to defensive practice cannot justify immunity for advocates because
liability has resulted in defensive practice in other professions with no immunity. It can,
therefore, be seen that advocates’ immunity cannot be justified by an advocate’s duty to the
court because the tendency towards defensive practice following the imposition of tortious
liability is something that affects other professions that do not enjoy immunity.
Finally, advocates’ immunity is unnecessary to maintain the duty to the court because it is
maintained by the threat of professional sanction and the powers of trial judges. Advocates
understand the importance that maintaining their duty to the court has for the administration of
justice and would be unlikely to ignore this duty for fear of being sued.84 Trial judges can also
intervene during court proceedings to ensure that advocates do not subordinate this paramount
duty to the interests of the client.85 Courts have inherent powers to discipline advocates and the
duty to the court is enshrined in various statutory obligations enforceable by professional
discipline proceedings.86 Moreover, failure to observe the duty to the court will likely lead to
informal sanction; that is, briefs will no longer be offered to that advocate.87 Neither formal nor
informal professional sanction can be insured against, whereas professional negligence can be
insured against. Consequently, given the relative severity of these sanctions compared with
professional liability, advocates would still maintain their duty to the court in the absence of
advocates’ immunity.
4. The Finality Principle
The finality principle is the only justification remaining for the retention of advocates’ immunity.
In Giannarelli it was relied on by all majority judges. Their Honours held that re-litigation would
destroy public confidence in the judicial branch of government and the administration of
justice.88 In D’Orta-Ekenaike the finality principle was relied upon almost as the sole justification
by Gleeson CJ, Gummow, Hayne and Heydon JJ, while McHugh J and Callinan J both referred to
the need for finality as a justification for the immunity. The joint majority held that
the central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy.89
Their Honours stated that there is public interest in the effective functioning of the courts and
re-litigation would damage this effectiveness.90 For the joint majority, ‘re-litigation of the
84 Gerber, above n 61, 648. 85 Hocking and Muirhead, above n 74, 107. 86 See, eg, Legal Profession (Barristers) Rule 2007 (Qld) rr 23-33. 87 Gerber, above n 61, 649. 88 Giannarelli (1988) 165 CLR 543, 558 (Mason CJ), 574 and 576 (Wilson J), 579 (Brennan J), 595
(Dawson J). 89 D’Orta-Ekenaike (2005) 223 CLR 1, 20-21. 90 Ibid 20.
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controversy would be an inevitable and essential step in demonstrating that an advocate’s
negligence in the conduct of litigation had caused damage to the client.’91
However, this article argues that advocates do not need immunity from suit in order to preserve
finality and prevent re-litigation. Firstly, the finality principle relied upon by the joint majority is
logically flawed with respect to intermediate decisions. Secondly, suing an advocate does not
inevitably require re-litigation of the original controversy. Thirdly, the pre-existing specialised
rules of issue estoppel, res judicata, autrefois convict, autrefois acquit and abuse of process can
protect finality without requiring blanket immunity for advocates. Fourthly, the claims made in
relation to the public interest in finality and public confidence in the administration of justice
are undermined by experience in other jurisdictions. Lastly, a negligence action against an
advocate is analogous to the other narrow exceptions recognised to the finality principle and,
therefore, should also be an exception. As a result, advocates’ immunity is unnecessary to
preserve finality and prevent re-litigation.
4.1 Logical Flaws in the Finality Principle
To begin with, the finality principle is logically flawed and cannot support advocates’ immunity
in relation to rulings by intermediate courts that are later overturned on appeal. The joint
majority in D’Orta-Ekenaike concluded that an action for negligent advocacy at trial, where the
decision of the court is later overturned on appeal, was no different to the situation where there
was no appeal.92 Their Honours argued that the finality of the entire process (trial and all
subsequent appeals) requires protection. The reasoning given by the joint majority on this point
has been described as ‘rather difficult to follow.’93 Their Honours stated that grounds of appeal
could be totally unconnected with negligent advocacy, given that the issue in a criminal appeal is
miscarriage of justice not negligence.94 As a result, they reasoned that the logic of the finality
principle requires protection of every ruling given by a court, regardless of whether it is later
overturned.
This reasoning is logically flawed as it appears to overlook the fundamental difference between
intermediate and final decisions. The joint majority noted that the ‘principal qualification to the
general principle that controversies, once quelled, may not be reopened is provided by the
appellate system.’95 When a judgment is successfully appealed, it is no longer the final
determination of the controversy and the appellate court has essentially declared that it was
flawed. Given that the original decision is no longer final or binding, its ‘finality’ no longer
requires protection. As such, any action for negligent advocacy at trial could not, by definition,
disturb the finality of the judgment, as it has already been removed by the appellate court. Even
if it is accepted that the finality of the entire process requires protection (as the joint majority
argued), there is no logical reason to prevent negligent advocacy actions from proceeding in
91 Ibid (emphasis added). 92 Ibid 30. 93 Cane, above n 63, 100 n 39. 94 D’Orta-Ekenaike (2005) 223 CLR 1, 30. In civil cases, there can be no appeal on the ground of negligent
advocacy: Standing Committee of Attorneys-General, Advocates’ Immunity from Civil Suit: Options Paper (August 2005) 29.
95 D’Orta-Ekenaike (2005) 223 CLR 1, 17.
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such cases. This is because the negligence action is perfectly consistent with and does not
challenge the outcome of the entire process. As the Standing Committee of Attorneys-General
recognised:
In respect of the possibility of conflicting judgments, provisions enabling summary dismissal of unmeritorious claims or collateral attacks should ensure that claims against advocates could not be made unless a criminal verdict has been overturned on appeal. If the original judgment has been overturned, there can be no public policy objection to an action for negligence against the legal advisers, as arguably there can be no conflict of judgments.96
In D’Orta-Ekenaike’s case, for example, the Court of Appeal quashed the conviction and ordered
a retrial. In the Giannarellis’ case, the High Court quashed the convictions and there was no
retrial. In both cases, the clients were attempting to prove there had been negligent conduct
during proceedings that ultimately produced no final order. Contrary to what the majority stated
in Giannarelli, public confidence in the administration of justice would not decrease by allowing
the negligence proceeding, as the appellate court has already declared the original judgment
wrong. Contrary to what the majority in D’Orta-Ekenaike stated, there is no public interest in
preventing a challenge to the finality of the original proceeding by way of a negligence action,
because the appellate court has reversed the order and it is no longer final. Consequently, in
relation to intermediate decisions later overturned on appeal, the finality principle is logically
flawed and cannot support advocates’ immunity.
4.2 Negligence Proceedings against Advocates Do Not Inevitably Involve Re-litigation
In addition to being logically flawed, the finality principle cannot found advocates’ immunity
because suing an advocate in negligence does not, as the joint majority claimed, require re-
litigation of the original controversy.97 There would be fundamental differences between the
original proceeding and the subsequent negligence action that would mean it would not be re-
litigation: the parties to the negligence action would be different to those in the original
proceeding, the facts and events upon which the two causes of action are based would be
different and the causes of action would be different. As Kirby J noted in D’Orta-Ekenaike, ‘in any
case, the issue raised in a claim of legal professional negligence is necessarily different, in fact
and in law, from the issue that has been earlier litigated and determined.’98 Any negligence
action would litigate the conduct of the advocate in court, not the conduct of the client before the
original proceedings.
With respect to the claim by the joint majority that determining causation would necessarily
involve re-litigation, this does not mean that all negligent advocacy actions would involve re-
litigation. In some cases, ‘causation would not be under contention and no re-litigation would be
96 Standing Committee of Attorneys-General, above n 94, 25 (emphasis added). 97 While it is beyond the scope of this article, the joint majority noted that re-litigation would occur when
the court examined causation. However, there are causes of action against an advocate that do not include causation as an element: breach of fiduciary duty and breach of duty to the court. Surely in these cases, where causation does not need to be shown, there would be no re-litigation.
98 (2005) 223 CLR 1, 105.
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required.’99 In cases where causation is so obvious it cannot be denied, there would be no re-
litigation. Given that actions for negligent advocacy do not necessarily involve re-litigation, it
follows that advocates’ immunity should be abolished to allow claims that do not amount to re-
litigation to proceed to hearing.
If a claim against an advocate did involve re-litigation, then existing rules designed to protect
finality, namely issue estoppel, res judicata, autrefois convict, autrefois acquit and abuse of
process rules would operate to prevent the re-litigation and preserve finality. For example, it is
commonly accepted that a collateral challenge in civil proceedings to a subsisting conviction is
generally an abuse of process.100 Finality would be protected because an action against an
advocate would be struck out as an abuse if the plaintiff had not first had the conviction set aside
on appeal.101 Therefore, re-litigation is not inherent in an action against an advocate or
necessary to prove causation, meaning that advocates’ immunity is unnecessary to prevent re-
litigation and preserve finality. Existing rules of finality are sufficient for this purpose.
4.3 Experience in Other Jurisdictions
Not only is the finality principle no justification for advocates’ immunity, the principle is
undermined by experience regarding public interest in finality and public confidence in the
administration of justice from other common law jurisdictions. Advocates’ immunity has been
abolished for criminal and civil proceedings in England and Wales,102 as well as New Zealand.103
It appears the immunity is no longer recognised in Ireland.104 It was never adopted in Canada or
the United States of America.105 There is also no immunity for advocates in Singapore,106 India107
99 Thalia Anthony, ‘Australia’s Anachronistic Advocates’ Immunity: Lessons from Comparative Tort Law’ (2007) 15 Tort Law Review 11, 24.
100 Lai [2007] 2 NZLR 7, 44 (Elias CJ, Gault and Keith JJ), 70 (Tipping J), 73-4 (Thomas J); Hall [2002] 1 AC 615, 679 (Lord Steyn), 703 (Lord Hoffman). Lord Browne-Wilkinson and Lord Millett agreed with the reasoning of Lord Steyn and Lord Hoffman.
101 The joint majority in D’Orta-Ekenaike (2005) 223 CLR 1 held that because the criteria for allowing an appeal on the grounds of miscarriage of justice are different to the criteria for proving negligence, it is too attenuated to allow plaintiffs who have had their convictions set aside to sue. In response to this, Elias CJ stated in Lai [2007] 2 NZLR 7 that ‘[i]t is almost inconceivable that inadequate representation sufficient for advocate liability for wrong result would not also have led to a miscarriage of justice sufficient for a successful appeal’: at 39 (emphasis added).
102 Hall [2002] 1 AC 615. 103 Lai [2007] 2 NZLR 7. 104 McMullen v McGinley [2005] IESC 10. 105 In Canada the immunity was rejected by a single judge of the Ontario High Court of Justice (Krever J) in
Demarco v Ungaro (1979) 95 DLR (3d) 385, a judgment that has been widely approved throughout Canada. Most recently, it was endorsed by the Full Bench of the Ontario Court of Appeal in Folland v Reardon (2005) 249 DLR (4th) 167. In the United States, the immunity was rejected in the federal jurisdiction by the Supreme Court in Ferri v Ackerman 444 US 193, 203-4 (Stevens J) (1979). The Supreme Court also held that the position in each State jurisdiction was to be determined by the State Supreme Court or legislature.
106 Chong Yeo and Partners v Guan Ming Hardware and Engineering Pty Ltd (1997) 2 SLR 729, 744 (Yong Pung How CJ).
107 Kaur v Deol Bus Service Ltd AIR [1989] P&H 183, 185 (Sodhi J).
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or Malaysia.108 Only obiter remarks by the Inner House of the Court of Session suggest that the
immunity remains part of Scots law.109 Kirby J referred to this experience in D’Orta-Ekenaike:
First, as to the suggestion that the immunity of advocates is an essential consequence of the need for certainty and finality of court determinations of legal controversies, it is enough to say that virtually all legal systems of the world, including many that are at least as worthy of respect as our own, flourish without the supposed indispensible immunity. They either have never had it or have now abolished it.110
Similarly, in Hall Lord Steyn referred in particular to Canada: ‘I regard the Canadian empirically
tested experience as the most relevant. It tends to demonstrate that the fears that the possibility
of actions in negligence against barristers would tend to undermine the public interest are
unnecessarily pessimistic.’111 It would be erroneous to suggest, as the joint majority did,112 that
the minor differences between the various common law legal systems justify diametrically
opposed views regarding abstract concepts such as ‘public interest’ and ‘public confidence’.
Courts in New Zealand, England and Wales have all held that finality can be preserved by the
pre-existing rules of finality that also exist in Australia. Following the abolition of advocates’
immunity in England, there has been no ‘flood’ of claims against advocates that damage
finality.113 Accordingly, the fact that other similar common law jurisdictions have preserved
public interest in finality and public confidence in the administration of justice provides
evidence that advocates’ immunity is not essential to ensuring finality.
4.4 Advocates’ Liability as an Exception to the Finality Principle
Even if negligent advocacy actions amounted to re-litigation, the finality principle was logically
sound and the experience in other jurisdictions was irrelevant to Australia, negligence actions
against an advocate are analogous to the other exceptions to the requirement of finality. The
joint majority held in D’Orta-Ekenaike that the finality principle recognised that controversies
could be reopened ‘in a few, narrowly defined, circumstances.’114 Elias CJ noted in Lai that the
joint majority ‘did not explore the qualifications at any length.’115 These qualifications include
appeals,116 suing a criminal defendant in tort117 and an injunction to restrain enforcement of a
judgment obtained by fraud.118 An action for negligent advocacy is analogous to these
exceptions. Convictions may be appealed on the grounds of flagrant incompetence of counsel
108 Miranda v Khoo Yew Boon [1968] 1 MLJ 161. 109 Wright v Paton Farrell [2006] SLT 269. However, the House of Lords in Arthur J S Hall v Simons [2002]
1 AC 615 indicated that while its ruling did not affect Scotland, the position in Scotland would be the same as in England and Wales.
110 (2005) 223 CLR 1, 105. 111 [2002] 1 AC 615, 681. See also 695 (Lord Hoffman). 112 D’Orta-Ekenaike (2005) 223 CLR 1, 25. 113 Standing Committee of Attorneys-General, above n 94, 17. In Canada, where the immunity was never
adopted, there has never been a flood of claims or even a disproportionate level of claims against advocates: Duncan Webb, Ethics, Professional Responsibility and the Lawyer (2nd ed, 2006) 374.
114 (2005) 223 CLR 1, 17. 115 [2007] 2 NZLR 7, 35. 116 D’Orta-Ekenaike (2005) 223 CLR 1, 17 (Gleeson CJ, Gummow, Hayne and Heydon JJ). 117 Cane, above n 63, 99. 118 DJL v Central Authority (2000) 201 CLR 226, 244-5 (Gleeson CJ, Gaudron, McHugh, Gummow and
Hayne JJ).
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where this amounts to a miscarriage of justice.119 Moreover, an injunction to restrain
enforcement of a judgment obtained by fraud is granted because the original determination is
tainted by the fraud and the original court did not have the proper facts and authorities
necessary to give judgment. Given the importance of competent advocacy in adversarial systems
of justice, in situations where a court gives judgment based on negligent advocacy, the judgment
could also be said to be tainted by the negligence. The integrity of the trial process, the key to
adversarial justice, will have been damaged by the failure to properly present the facts or
authorities. Consequently, negligent advocacy suits should be recognised as one of the defined
circumstances where controversies may be reopened, because they are analogous to the other
exceptions.
5. Alternate Methods of Protecting Finality
The foregoing arguments have shown that advocates’ immunity is not necessary to protect
finality because the finality of intermediate results later overturned on appeal cannot logically
require protection, not all negligent advocacy actions involve re-litigation and experience in
other jurisdictions suggests negligent advocacy suits do not destroy the public interest or
confidence. However, abolition of the immunity would not mean that there would be no rules
protecting finality. Both the House of Lords and Supreme Court of New Zealand held that the
rules of issue estoppel, res judicata, autrefois convict, autrefois acquit and abuse of process were
sufficient to preserve finality.120 The incremental development of these pre-existing finality rules
would also provide sufficient protection for finality in Australia.
Various judges have recognised that whether an action represents an unacceptable challenge to
finality is a matter of degree.121 Advocates’ immunity preserves finality but also prevents
meritorious claims from proceeding. Utilising the abuse of process rules to strike out negligent
advocacy proceedings that are merely a collateral attack or re-litigation of the original case
protects finality while also recognising that there will be circumstances where clients will have a
valid claim against their advocate that does not undermine finality.122 However, the abuse of
process rules were dismissed by the High Court on the grounds that the doctrine relied upon in
New Zealand, England and Wales is not the same as in Australia.123 This is a tenuous argument
119 Re Knowles [1984] VR 751. 120 Lai [2007] 2 NZLR 7, 41 (Elias CJ, Gault and Keith JJ); Hall [2002] 1 AC 615, 680 (Lord Steyn), 684-5
(Lord Browne-Wilkinson), 701-3 (Lord Hoffman), 752 (Lord Millet). 121 Lai [2007] 2 NZLR 7, 38 (Elias CJ, Gault and Keith JJ); Hall [2002] 1 AC 615, 679 (Lord Steyn), 703
(Lord Hoffman). These judges have stated that generally a collateral challenge in civil proceedings to a conviction is prima facie an abuse of process, but this is not necessarily the case.
122 For example, where the negligent advocacy occurred at trial and the decision of the court has been overturned on appeal.
123 D’Orta-Ekenaike (2005) 223 CLR 1, 67 (McHugh J). See also Gleeson CJ, Gummow, Hayne and Heydon JJ at 28-31, where their Honours seem to suggest that all negligent advocacy actions would amount to an abuse of process because of the public interest in preserving finality. However, the deficiency of the abuse of process doctrine at common law has been disputed by the Standing Committee of Attorneys-General: Standing Committee of Attorneys-General, above n 94, 25.
66 Queensland Law Student Review (2011)
because ‘even if the abuse of process doctrine is presently deficient in Australian law, the
common law could develop the doctrine to protect finality when required.’124
Furthermore, utilising the abuse of process rules to protect finality would ensure courts can
continue to discipline advocates. If the finality principle warrants strong protection such as the
joint majority indicated, it would mean that courts could no longer exercise their inherent
jurisdiction to discipline rogue advocates, for example by making wasted costs orders.125 Indeed,
the joint majority stated challenges to the costs order ‘should not be permitted lest a dispute
about wasted costs become the vehicle for a dispute about the outcome of litigation.’126
However, it appears unlikely that the courts would accept that finality requires that wasted costs
orders can never be made. Clearly, claims for wasted costs orders would not amount to an abuse
of process if they were meritorious. It can, therefore, be seen that the incremental development
of existing finality rules will provide sufficient protection for finality and also recognise that not
all negligent advocacy actions challenge finality; it must be determined on a case-by-case basis.
6. Relevance of the Elements of Negligence
6.1 Connection between Justification for Immunity and Potentially Restricted Liability
Difficulties involved in proving negligence against advocates feature prominently in the
reasoning of the High Court in Giannarelli and D’Orta-Ekenaike. In particular, the causal
indeterminacy involved in such claims has been emphasised by various judges as a reason to
retain immunity. Due to the continued existence of the immunity, there have been few judicial
comments regarding the tests and thresholds that would be applied to determine advocate
negligence once the immunity is abolished. Importantly, no member of the High Court has
proposed definitive and exhaustive tests or thresholds for each element of negligence in the
context of advocacy. However, there are already indications that if advocates’ immunity is
abolished, the High Court will develop the common law and interpret the provisions of the Civil
Liability Acts so as to impose difficult tests and thresholds that limit advocate liability for
negligence. These indications are contained in hypothetical examples and general statements
made by High Court judges in various cases; these examples and statements go beyond a mere
recognition that proof of negligent advocacy may be difficult.
While it remains unclear how such tests or thresholds would be precisely framed, it appears
clear they would be applied strictly; essentially substituting the protection afforded by the
immunity with the protection of these high standards. This article argues that the courts must
ensure that for there to be an effective abolition of advocates’ immunity the tests and thresholds
adopted for negligent advocacy must not restrict liability, thereby acting as a practical barrier to
claims against advocates. Critically, the courts must recognise that advocates owe clients a duty
124 Anthony, above n 99, 25. Indeed, the need to develop abuse of process rules was recognised by Lord Hoffman in Hall [2002] 1 AC 615, 705. His Lordship stated it would merely be ‘a matter of judicial application to the facts of each case.’
125 See, eg, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134, in which a wasted costs order was granted against the solicitors.
126 D’Orta-Ekenaike (2005) 223 CLR 1, 30.
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of care for work within the scope of advocates’ immunity, the standard of care is that of a
reasonable professional and that causation includes proving the client would have obtained a
more favourable result. Tests and thresholds that require higher standards would unnecessarily
restrict advocate liability.
6.2 Duty and Standard of Care
Failure to impose a duty of care upon advocates is a potential limit to liability that, while unlikely
to arise, would be effectively the same as retaining the immunity. Some academics have argued,
based on obiter comments by Gaudron J,127 that no duty of care should be imposed on advocates
because the High Court does not have a coherent doctrinal approach to the imposition of duties
of care.128 What is known is that public policy is recognised as a relevant factor to consider129
and, given the findings regarding public policy in Giannarelli and D’Orta-Ekenaike, it is possible
that the High Court would refuse to impose a duty of care upon advocates. However, there would
be no justification for such a refusal. Kirby J noted in D’Orta-Ekenaike that ‘[t]here are few
relationships that are closer, involving at once neighbourhood, proximity, reliance and
vulnerability of the client, than that with legal advisers in connection with litigation.’130
Abolishing advocates’ immunity but refusing to acknowledge a duty of care would make no
practical change.131 If public policy considerations and the finality principle cannot justify
retaining immunity, then they cannot justify refusal to impose a duty of care. Thus, to ensure
clients can sue their advocates, the courts must impose a duty of care upon advocates.132
Importantly, the standard of care required must be that of a reasonably competent advocate. At
common law, professionals must exercise the standard of care ‘of the ordinary skilled person
exercising and professing to have that special skill.’133 In some jurisdictions, the Civil Liability
Acts have mandated a reasonable standard of care for all professionals. There will be no breach
of duty where the professional acted in a manner widely accepted by peer professional opinion
as being competent.134 These provisions state that peer professional opinion need not be
universally accepted and that differing or conflicting opinions supported by a significant number
of practitioners will still be reasonable. This provides the courts with the opportunity to accept
an extremely broad standard of advocate practice as being reasonable. Experience in both
Canada and the United States has shown that in the absence of immunity, the courts will impose
an extremely low standard of care upon advocates, to account for public policy considerations
127 Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209, 230. Her Honour stated that ‘[i]n my view, proximity – more precisely, the nature of the relationship mandated by that notion – may exclude the existence of a duty of care on the part of legal practitioners with respect to work in court. Whatever the position, it is one that derives from the law of tort, not notions of “immunity from suit”.’
128 Matthew Groves and Mark Derham, ‘Should Advocates’ Immunity Continue?’ (2004) 28 Melbourne University Law Review 80, 121-2.
129 Ben Hartley, ‘Advocacy, Policy and Potato Chips: The Future of Advocates Immunity in Australia’ (2003) 14 Insurance Law Journal 151, 170.
130 (2005) 223 CLR 1, 105. 131 Ibid 34 (McHugh J). 132 Note that clients can sue their advocates for misleading and deceptive conduct under s 38 Fair Trading
Act 1989 (Qld). 133 Rodgers v Whitaker (1992) 175 CLR 479, 487 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ). 134 Civil Liability Act 2002 (NSW) s 50; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act 1936 (SA) s 41;
Civil Liability Act 2002 (Tas) s 22; Wrongs Act 1958 (Vic) s 59.
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and the need to protect finality.135 However, ‘[t]he case for a distinct approach towards the
profession as a whole is virtually impossible to make, given the parallels drawn between the
respective positions of legal and medical practitioners in Arthur Hall v Simons and Demarco v
Ungaro.’136 If public policy cannot support advocates’ immunity, then it cannot support an
extremely low standard of care. The courts must ensure that when interpreting and applying
the common law or legislated standard of care to advocates, they do not accept a low standard of
peer professional opinion regarding competency or adopt an extremely broad interpretation of
the term ‘widely accepted’. Otherwise, it will be unnecessarily difficult to prove negligent
advocacy.
6.3 Causation and Damage
Furthermore, the application of the general test for causation to advocates by the courts must
not unnecessarily restrict advocate liability. In most jurisdictions, the common law regarding
causation has essentially been codified in the provisions of the Civil Liability Acts. Under these
provisions, causation requires the plaintiff to show that the breach of duty was a necessary
condition of their loss and that it is appropriate for the defendant’s scope of liability to extend to
that loss.137
McHugh J in D’Orta-Ekenaike stated that a plaintiff would have to prove that but for the
negligence of their advocate, they would have been acquitted or found non-liable.138 This is a
restrictive formulation, which excludes claims that but for negligent advocacy there would have
been a more favourable result and loss of chance claims. Under this approach, plaintiffs could
not sue for: negligent advocacy resulting in a higher sentence, negligent advocacy that resulted
in a costs order made against them, negligent advocacy that resulted in a larger quantum of
damages being awarded against them (if they were found liable) or negligent advocacy where
the plaintiff succeeded but was denied a specific remedy or received limited damages.139
McHugh J’s formulation would also prevent plaintiffs from claiming for lost chance of acquittal
or finding of non-liability. Such claims have been allowed in Australia against negligent solicitors
for conduct outside the scope of the immunity, despite the fact there has also been causal
135 Anthony, above n 99, 27. Note that both the Canadian and American courts have since increased the standard of care to that of a reasonable professional, on the grounds that too few negligence actions were succeeding.
136 Kit Barker, ‘Unfamiliar Waters: Negligent Advocates, Egregious Errors and Lost Chances of Acquittal’ (2005) 24(2) University of Queensland Law Journal 467, 469. See also Webb, above n 113, 378-9; Stanley Yeo, ‘Dismantling Barristerial Immunity’ (1998) 14 Queensland University of Technology Law Journal 12.
137 Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Civil Liability Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA) s 5C.
138 (2005) 223 CLR 1, 54-55. See also 27 (Gleeson CJ, Gummow, Hayne and Heydon JJ). 139 See, eg, Keefe v Marks (1989) 16 NSWLR 713, where the barrister won the case for the plaintiff but
failed to claim interest on damages. The majority accepted that this was negligent conduct that caused loss to the plaintiff: at 718-9 (Gleeson CJ), 728-9 (Meagher JA). Their Honours held that advocates’ immunity prevented an action against the barrister. Nevertheless, such negligence would not fall within the test enunciated by McHugh J.
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uncertainty.140 If loss of chance has been accepted by the courts as a valid claim in relation to
solicitors, it must also be accepted as a valid claim against advocates; there is no reason for such
claims to be excluded ‘given the fact that the nature and source of causal uncertainties are
exactly the same.’141 Thus, successful claims made against non-advocates show that the
formulation of McHugh J would unnecessarily restrict advocate liability.
Excluding claims by adopting a restrictive test for causation would also seem illogical when
compared with claims against advocates for negligence outside the scope of the immunity.
Clients have been allowed to recover from their barrister where they had been advised to
proceed with an unwinnable case.142 These clients could never have proved that but for advocate
negligence they would have succeeded, and yet they were awarded damages. It would, therefore,
be illogical to adopt different tests of causation that allow clients with hopeless cases to recover
against their advocates for conduct outside the immunity, but refuse recovery to a client who
lost a chance or would have obtained a more favourable outcome but for negligent advocacy
within the scope of the immunity.
Consequently, if the abolition of advocates’ immunity is to be effective, the standard proposed by
McHugh J must be rejected. The requirement that a plaintiff must show they would have been
acquitted or found not liable ‘would seem to be applying a stricter test of causation ... in respect
of defective trial advocacy than that applied in other instances of causal indeterminacy.’143 It is
clear that not all negligent conduct currently protected by the immunity would satisfy the test of
causation proposed by McHugh J. Loss arises from negligent advocacy in a plethora of ways.
Clients must be allowed to prove that they would have obtained a more favourable result or that
they lost a chance of obtaining such a result; otherwise, the abolition of advocates’ immunity will
not be effective.
7. Conclusion
Because it has no sound legal foundation, advocates’ immunity must be abolished in Australia.
Examination of the reasoning of the High Court shows neither error in the reasoning of other
courts nor local differences that justify a unique approach. None of the public policy
considerations invoked in support of the immunity justify its retention. Continued observance of
the ‘cab-rank’ principle is protected by other means. Difficulty in proving causation is inherent to
negligence actions and can be overcome by use of transcripts. There is no analogy between
advocates and other participants in court proceedings. Conflicting loyalties are not unique to
advocates and the duty to the court can be enforced by other means.
140 Barker, above n 136, 471, 477. Barker cites the following cases where clients recovered against their negligent solicitors for loss of chance: Nikolaou v Papasavas Phillips & Co (1989) 166 CLR 394 and Green v Berry [2000] QCA 133. See also Greg Gordon, ‘Not Yet Dead: Wright v Paton Farrell and Advocates’ Immunity in Scotland’ (2007) 70(3) Modern Law Review 471, 475.
141 Barker, above n 136, 477. Note that the ability to claim against advocates for loss of chance was also denied by the Ontario Court of Appeal in Folland v Reardon (2005) 249 DLR (4th) 167.
142 See, eg, Kolavo v Pitsikas [2003] NSWCA 59, where a barrister advised a client they had a good negligence case, but it was clear that the defendant did not owe a duty of care. There was no way the client could have satisfied the causation test of McHugh J, because she could never show that she would have been successful.
143 Gordon, above n 140, 474.
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Nor can the finality principle justify retaining the immunity. The principle is logically flawed.
Negligent advocacy actions do not inherently require re-litigation. Experience in other
jurisdictions shows immunity is unnecessary to protect finality. Significantly, negligent advocacy
actions are analogous to other exceptions to finality and should also be recognised as an
exception. Existing rules at common law protect finality and abuse of process rules, in particular,
can be modified and developed by the High Court to ensure re-litigation and collateral attack do
not occur.
Once the immunity is abolished, the courts must ensure that the tests and thresholds adopted
for negligent advocacy do not unnecessarily restrict liability. The High Court placed prominence
on the difficulties in proving causation as a reason to retain immunity. Notably, there are already
indications that if the immunity is abolished, difficult tests and thresholds for negligence will be
imposed to limit liability and preserve the practical effect of immunity. A duty of care must be
imposed upon advocates to exercise the care and skill of a reasonably competent advocate. The
test for causation must not be restricted to proving there would have been a successful result; it
must include proving there would have been a more favourable result or loss of chance. Such
tests are consistent with liability for lawyers without immunity and for negligence outside the
scope of the immunity. Only if these standard tests are adopted will the abolition of advocates’
immunity be effective.