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Date: Mon, 11 Sep 2006 11:48:30 +1200 From: Barry Allan Subject: Barristerial Immunity Lifted in New Zealand
The Supreme Court of New Zealand has, within the last half hour or so, finally ruled on the question of barristerial immunity in New Zealand in Chamberlains v Lai [2006] SC 70, after a hearing last October. The main judgment is by Elias CJ & Gault & Keith JJ. The Supreme Court upholds the CA rejection of the immunity for barristers in civil cases, saying that the special role of the advocate simply does not justify protection [53]. While Australia has based immunity on a public policy interest in integrity of the system and finality (D'Orta-Ekenaike), immunity would only be justified if procedural rules were inadequate to provide finality. Abuse of process does provide a suitable restraint on collateral challenges to convictions. At the same time, the SC rejects any contention that any collateral challenge will always be an abuse of process (cf D'Orta-Ekenaike). One major shift from the CA decision is the rejection of any distinction according to whether proceedings are civil or criminal, on the ground that any such distinction would be "invidious" (citing Lord Millett in Arthur JS Hall v Simons) and raise characterisation issues. There is more, and there is a supporting judgment from Tipping J which I have yet to digest, although he does opine that a civil proceeding would always be an abuse of process if it amounted to a collateral challenge to a criminal conviction, and a snappy rejection of that position by Thomas J.
Barry
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