Dear Colleagues;

The decision today of the High Court of Australia in Kendirjian v Lepore [2017] HCA 13 (29 March 2017) http://www.austlii.edu.au/au/cases/cth/HCA/2017/13.html will be of interest to list members for two reasons, I think: one is the inherent issue decided, concerning the extent of the “advocates’ immunity” still enjoyed by counsel in Australia; but secondly because it seems to be the first solo judgment of Edelman J, former list member. (I think this is signaled by the unusual feature of the first 4 concurring judgments being spelled out separately.) Two of the other Justices do not disagree with the outcome given the prior authority, but comment to note problems with this course of authority as exemplified in this decision.

The substantive issue is fairly narrow (hence the brevity of the judgments). The HCA, unlike most other superior courts in the common law world, has maintained over many years the immunity of advocates from being sued for what might broadly be called “litigation” decisions and argument in court, most recently declining to revisit the “core” area of immunity in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16. But in Atwells the majority held that the immunity did not extend to “negligent advice which leads to a compromise of litigation by agreement between the parties”- see Edelman J at [18]. It was also said that immunity would not extend to advice not to settle.

In these proceedings, counsel was alleged to have advised that a settlement offer in prior personal injury proceedings had been made, but to not have spelled out the amount. (In the circumstances the final damages awarded were around $300,000 when the offer had been for $600,000.) The client is claiming he would have accepted the amount offered if he knew of it, and hence claiming damages from counsel for the “difference”. The substantive claims have not yet been tested, as the action was struck out by the trial judge on the basis that advocate’s immunity applied, a decision upheld by the NSW Court of Appeal; but both these decisions were made before the decision in Atwells and hence this litigation testing the limits of the new doctrine.

After a helpful review of the development of the doctrine and its recent course, Edelman J finds that these facts cannot be sensibly distinguished from those in Atwells, and that the majority decision there means that the immunity does not apply to allegedly negligent advice not to compromise a claim (effectively the claim here.) See the summary at [32] of the reasoning that a decision not to compromise is not of itself something which “affects the judicial determination of a case”. Nor had sufficient material been put forward to justify re-opening the recent Atwells decision.

Justices Nettle and Gordon, who had dissented in Atwells, agree with the decision (in light of the binding authority of Atwells) but offer remarks on some of the issues here which seem to suggest reasons for doubting whether the current doctrine is workable.

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor

Newcastle Law School

Faculty of Business and Law

MC177 McMullin Building

 

T: +61 2 49217430

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Blog: https://lawandreligionaustralia.blog

 

 

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