Dear Eli, all

Having just read the judgment, I think the decision interesting in the
extent to which it narrows the 'advocate's immunity' but still
extremely regrettable.

There is here a strong case that justice must be done and be seen to
be done. That will not be achieved by according a finality to
litigation that is simply spurious! It will not be achieved by
preventing those with a justifiable sense of grievance because of the
way their case was handled in Court (a small minority one hopes) from
vindicating (or trying to vindicate) that in Court and holding their
lawyers accountable in the same way as the law holds every other
professional accountable for their actions. A law made by judges (all
lawyers) which exempts lawyers from the accountability to their
clients which it imposes on all other professionals will look to the
public like a case of an old boys/girls club in action, however unfair
that may be, however high minded the reasons supposed to justify the
rule.

The reality is that many errors that lawyers make in the presentation
of a case cannot be corrected on appeal (unless the appeal is de
novo). My understanding (and I'm open to correction) is that as with
most other common law jurisdictions, most appeals in Australia are not
de novo appeals.

There are cases where a lawyer's negligence does change the way in
which a Court decided a matter and where the extent of the impact on
the Court's holding is clear, not a matter of speculation.

Take a much simplified example. Suppose for example that company A's
general terms and conditions are held to have been incorporated into
a given contract by reference. E.G. The contract refers to general
terms of trading set out in a completely separate document available
from the company on request (or perhaps sent to the counterparty
separately). The Court holds that they were validly incorporated into
the contract. The wrong terms and conditions are put before the
Court, due to the company's lawyers' negligence. Had the correct terms
been put before the Court, they would have been more favourable to the
company. There would I think be a strong case for saying that had the
correct terms been before the Court (as they would have been but for
the negligence of the lawyer involved) the judgment would have been in
line with the correct terms and more favourable to the company.

A good (if more complex) illustration of negligence by a lawyer in the
conduct of litigation is given in the judgment of the Supreme Court of
Victoria in Goddard Elliott (a firm) v Fritsch [2012] VSC 87.
Following the judgment of the High Court, advocates immunity would not
apply here but should the result really depend on whether the case is
settled at the Court room door or fought to a finish which can be
shown to have been unfavourable because of the lawyers' negligent
conduct in the case?

http://www.austlii.edu.au/au/cases/vic/VSC/2012/87.html

Quite apart from that, the High Court's treatment of experience in
other common law jurisdictions where judicial power is understood in
the same way as in Australia but in which lawyers enjoy no such
immunity and the administration of justice has not been damaged (to my
knowledge at least) is profoundly disappointing.

The argument that persons who settled or lost cases based on the law
as it was understood previously is with respect a make weight at best.
To give that argument credence would stultify the development of the
law. It can be said in respect of every change in the law, it is a
well-recognized aspect of the common law system of adjudication. It
cannot be allowed to prevail where (as I think here) the previous law
is simply unjust and wrong and where to permit the established rule to
stand will give rise to further injustice in the future.

I cannot help thinking that D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 was not really the most appropriate vehicle for the
consideration of these issues by the High Court. The Plaintiff was
hardly one who would arouse the Court's sympathy and one wonders
whether the result might have been otherwise had the case presenting
the issue for decision been different. With respect, I think that
Australian law took a wrong turn in that case and that this decision
is disappointing because it leads Australia further down that wrong
road. While it stands, it will give rise to injustice in individual
cases in the future and almost as seriously it will lead ordinary lay
people to believe that lawyers and judges are looking after their own.
It will be hard to explain to a professional, say a surgeon sued
(successfully or not) for what may have been a split second decision,
why a solicitor who's negligence is gross and has extended over months
or years has an immunity denied to him. A rule that provides such an
immunity is not (as the majority correctly recognized) holding people
equal before the law.

Kind regards

Ger


On 5/4/16, Eli Ball <eli.ball@gmail.com> wrote:
> Thanks, Neil.
>
> It's certainly an interesting decision, not least because it was a Full
> Bench of the Court. I can tell you there was some surprise (and relief)
> among those at my firm today that not a single judge proposed to do away
> with the immunity.
>
> To be clear, "advocate's immunity" is a misnomer: it's not special to
> "advocates" and it doesn't strictly provide an "immunity" - the principle
> instead is that one judge cannot be asked to postulate on what of a
> previous judge's decision might have been had proceedings been conducted
> differently by the lawyer in question. There are only limited circumstances
> where this is allowed, and those are called "Appeals". There's some
> excellent analysis of the principles in the dissenting opinion of Ipp JA in
> a 2009 NSWCA case called *Symonds v Vass*.
>
> It's also interesting to see that the Court has left it expressly for
> Parliament to change the law so as to abolish the immunity. I've always
> been inclined to the view, however, that legislating away the immunity in
> Australia might encounter Constitutional problems given how much weight the
> High Court has placed on the exercise of judicial power and function in
> justifying the immunity. Take the example of a case that is conducted
> negligently by a barrister, and that negligence infects the case all the
> way up to the High Court where it is lost. If the client then sues the
> barrister in the NSW District Court, a plank of their argument will have to
> be "had my barrister done a better job, the High Court would have decided
> things differently". I shirk at the idea of a District Court Judge having
> to decide how the High Court would have decided a case differently - and I
> think given the opportunity, the High Court would at it shirk too.
>
> Those theoretical pointers aside, a practical problem with the decision
> today is that it may dis-incencentivise lawyers to recommend settlement.
> Putting to one side a lawyer's fiduciary duties to the client (which may or
> may not be possible), it now seems better to avoid settlement at least
> until a point is reached that some decision by the Court has influence the
> shape or balance of the settlement agreement. The Court seems to grapple
> with the problem at [52] but not in a satisfactory way.
>
> Cheers,
>
> Eli.
>
> --
>
> *Eli Ball*
>
> (m) +61 43 354 2255
> (e) eli.ball@gmail.com
>
> On Wed, May 4, 2016 at 5:35 PM, Neil Foster <neil.foster@newcastle.edu.au>
> wrote:
>
>> 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
>>
>>
>> Sent from Outlook Mobile <https://aka.ms/sdimjr>
>>
>>
>