Date: Thu, 10 Mar 2005 21:54:05 +1100

From: Harold Luntz

Subject: Advocates' immunity: antipodean conflict

A conflict has developed between the New Zealand Court of Appeal and the Australian High Court.

The day before yesterday, in Lai v Chamberlains (8 March 2005) the New Zealand CA, by a majority of 4:1, held that "barristerial" immunity from actions in negligence could no longer be supported in civil cases in New Zealand. They left open the issue in relation to claims arising out of criminal trials. The majority found the reasoning in Arthur J S Hall & Co (a Firm) v Simons [2002] 1 AC 615 compelling.

Today, the High Court of Australia, in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005), by a majority of 6:1, upheld its own previous decision in Giannarelli v Wraith (1988) 165 CLR 543 and refused to abolish or even narrow the scope of the immunity. The High Court obviously had advance access to the NZ case, but pointed out that there might now be an appeal in that country to its newly established Supreme Court. It found the reasoning in the Arthur Hall case less than compelling and also found differences in Australian practice and procedure from those operating in England. Justice Kirby's dissent pointed out that the decision of the majority once again put Australia out of line with courts in other jurisdictions.

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

Home address:
191 Amess St
North Carlton
Vic 3054
AUSTRALIA

Phone:
Home: +61 3 9387 4662
Law School: +61 3 8344 6187

<<<< Previous Message  ~  Index  ~  Next Message >>>>>