Date: Fri, 6 Jul 2007 08:28

From: Neil Foster

Subject: Order in the Court

Dear Vaughan and others

Apart from anything else, in Australia it is still pretty clear that the traditional immunity of advocates (preserved in D'Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92) would prevent a barrister being sued for something done in cross-examination, I would have thought. Or will someone now tell me that the immunity only applies to negligence, not intentional torts? Of course in more liberal jurisdictions where lawyers can now be sued for this, it is an interesting question. But even there, as David says, it must be a good question whether the lawyer owes a duty to the witnesses of an opponent.

As a matter of interest has the Canadian Supreme Court abolished this immunity now, like the House of Lords and the NZ Supreme Court? Or is Demarco v Ungaro (1979) 95 DLR (3d) 385 still, as the High Court seemed to suggest in D'Orta, the highest it has gone? And is that case usually regarded as authoritative?

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Vaughan Black 5/07/07 11:03 >>>

I wonder whether someone might be torted while in the witness box. Could a witness sue a cross-examining lawyer for intentional infliction of emotional abuse?

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