Date: Mon, 11 Sep 2006 11:06:36 -0500

From: Geoff Mclay

Subject: Barristerial Immunity Lifted in New Zealand

Colleagues the decision can be found here.

In fact the decision is rather ho-hum in terms of the actual rule ... the arguments are those that one would expect to find, and to be fair to the court it is impossible to think up new arguments about this old chestnut.

Personally I thought that more time might have been spent with the dissent of Anderson in the Court of Appeal about the realities of NZ practice. I suspect that the terms of the decision will make actual cases very rare - there appears to be a presumption that so long as a judgment remains unchallenged on appeal, any civil case against the lawyer will almost always an abuse. The Court believes that judges will be able to sort out the rare cases (Tipping suggests that there ought to be an absolute rule in criminal cases). But the Court, of course, mistakes that the reality that it will be insurance companies that will in fact decide which cases will paid out and it is unclear how those adjusters will decide these issues.

The more interesting parts of the judgments lie in the discussion of prospective overruling (which the court appears to accept is possible but not necessary in this case since lawyers would have already have had adjusted their insurance policies to deal with the uncertainties in the rule). Tipping J invites us I think to consider the reality of the problem of time in the common law.

For smaller Common law countries there is also a very interesting discussion of what having your own "common law" means and the flexibility that enabling statute (the NZ statute gave NZ barristers the privileges of their English counterparts)

Geoff

-----Original Message-----
From: Barry Allan
Sent: Sunday, September 10, 2006 6:49 PM
Subject: ODG: 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.

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