barrister's immunity article scott lang

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


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.


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).


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.


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.


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.


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).


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.


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.


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.


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).


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.


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.


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.


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.


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).


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).


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.


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.


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.


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.


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.


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.

barrister's immunity article scott lang

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