Dear Colleagues,

In GREGORY IAN ATTWELLS & ANOR v JACKSON LALIC LAWYERS PTY LTD [2016] HCA 16  http://www.austlii.edu.au/au/cases/cth/HCA/2016/16.html a 5-2 majority of the High Court of Australia held that the principle of advocate's immunity for actions in court in connection with current proceedings does not usually extend to work done which leads to a negotiated settlement, even where contested court proceedings have actually commenced and the settlement is embodied in an actual consent order made by the court.

It should be noted that the whole court, while invited to depart from the main previous decision on in court actions, D'Orta-Ekanaike, declined to do so. The policy reason was said to the need for finality in decisions quelling disputes by court order. (This of course means that Australia continues to differ from most other common law jurisdictions on the point, cases in the UK and NZ and, I think, Canada holding that there is no such immunity).

But the difference of opinion related to where the draw the line in actions that lead to settling disputes out of court. The majority took the view that the immunity would not extend to cases where no genuine court decision on issues was involved (consent orders being seen to be in a different category.) But Gordon J (with whom Nettle J agreed on this point) took the vies that the formal status of a consent order as a real court order meant that the immunity ought to extend to actions leading up to such an order.

Regards

Neil