Australia is the only common law country which recognises an advocates' immunity against claims in negligence arising from their conduct of a case in court, or in work out of court intimately connected with that conduct. However, a recent single judge decision in the Supreme Court of Victoria highlights the unease with which the judiciary are applying what is the binding precedent of the High Court.
The existence in Australia of the advocates' immunity is settled at common law, but the scope of the immunity has raised concern within the judiciary and amongst litigators.
In its 1988 decision of Giannarelli v Wraith1 the High Court of Australia recognised and applied a principle adopted by the House of Lords in 1969 in Rondel v Worsley2 to hold that at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which is intimately connected with the conduct of a case in court. The immunity arose from public policy considerations, the determinative justification for the High Court being the adverse consequences for the administration of justice from re-litigating issues determined in concluded proceedings3. It is not confined to barristers, but applies at common law to solicitors and to work done out of court which leads to a decision affecting the conduct of the case in court.
The existence of the immunity was reaffirmed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid4, despite an earlier decision of the House of Lords revoking it in England5. By this decision, Australia became the only common law country in which the immunity remains6.
The High Court's reasoning in D'Orta-Ekenaike was that for a client to demonstrate negligence on the part of an advocate in the conduct of litigation, re-litigation of the concluded issues would be an inevitable step. However, it was essential to the public confidence in the finality of proceedings that litigation should not be re-opened except in a few narrowly defined circumstances: "the finality principle". The High Court stressed that the immunity does not attach to an advocate by reason of some special status accorded to them above other professionals, but rather by reason of their participation in court proceedings, for which other participants (judges, witnesses, jurors, etc) hold immunity. Therefore, it is not the pressure of the courtroom which affords the advocate the immunity, since for example a surgeon is under the same kind of strain whilst operating and no immunity from suit attaches to any negligence in the operating theatre7.
As the test for the immunity as given in Giannarelli was thus reaffirmed, its application became the question for subsequent tribunals, and in particular the degree to which the out of court work has an "intimate connection" with in-court work. By his judgment in D'Orta-Ekenaike, McHugh J said8 that "the immunity should extend to any work, which, if the subject of a claim of negligence, would require the impugning of a final decision of a court or the relitigation of matters already finally determined by a court." McHugh J also gave examples of the types of work determined to be "intimately connected" to the relevant extent, and therefore protected, were9:
- Failing to plead or claim interest in an action for damages;
- Issuing a notice to admit and making admissions;
- Failing to plead a statutory prohibition on the admissibility of crucial evidence;
- Negligently advising a settlement;
- Giving advice and making decision about what witnesses to call and not to call;
- Giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended.
Although the scope of the immunity as stated by McHugh J appears wide, the immunity is not unlimited. In proceedings in which the immunity was argued as a full defence to a claim for negligence, it was not extended include a failure to advise the availability of possible actions against third parties; a failure to advise commencing proceedings in a particular jurisdiction; applying for an injunction at short notice on the client's instruction but without cause; and advice by counsel on the prospects of the case or of an appeal10.
Nevertheless, a difficulty that has arisen for judges in lower courts bound by the High Court's decisions is an identified "lack of fit between the rationale for the immunity (the finality principle) and the formula specifying its scope"11. The degree of connection of the conduct complained about with the in-court work will be a matter on which legal minds can differ, and this has caused some to regard the law in this area as "not entirely satisfactory" and "vexed"12. This has been so in circumstances where it was considered that there need not be a challenge to the finality of a judicial decision at all, such as where a plaintiff seeks to recover costs alleged to have been wasted by reason of decisions made by their legal representatives during a proceeding13.
A particular example is the settlement of proceedings. Advice or other work leading to a settlement after a trial has commenced but before judgement has been given would attract the immunity as sufficiently connected with the conduct of the litigation14. On the other hand, advice given as to likely quantum for settlement did not attract the immunity for counsel in Hodgins v Cantrill15. A settlement at the door of the court attracted the immunity in Kelley v Corston 16 on the basis that such conduct involved predicting the likely outcome of a case at the door of the court and settling before it has begun, and therefore had the requisite degree of intimate connection with the case's conduct in court.
Goddard Elliott (a firm) v Fritsch
This matter concerned a property settlement proceeding in the Family Court. At the time of accepting instructions from Mr Fritsch, the law firm was aware that the case involved complex commercial and taxation issues and that he was mentally ill. However, despite nearly two years of preparation, the law firm was not ready to proceed at the commencement of the trial, and the hearing was adjourned for three days. On the return date, the proceeding was settled at the door of the court on terms that were overly generous to the wife. Consent orders to effect the settlement were made by the presiding judge, having heard the parties' respective barristers as to the terms, on the basis the settlement was just and equitable.
In proceedings commenced against the firm, the barristers and his accountant, Mr Fritsch alleged negligence on the basis that they took and acted on instructions which the man did not have the mental capacity to give, and also in relation to the firm's failure to properly prepare for the trial. The barristers and accountant settled the claim with Mr Fritsch in the course of the claim.
By his considered judgment in the claim against the firm17, Justice Bell of the Supreme Court of Victoria agreed that Mr Fritsch did not have the mental capacity to give instructions and that his legal representatives had been negligent, causing significant loss. However, the firm argued for the application of the advocates' immunity, and, although finding its application to be "deeply troubling" 18 , Bell J held that it provided the firm with a complete defence to Mr Fritsch's claim for damages.
Bell J held that the negligence with respect to Mr Fritsch's capacity as well as the preparation negligence fell within the immunity because it occurred in the course of work leading to decisions about, or intimately connected with, the conduct of a case in court, which His Honour described as a "very wide test" 19. The judge was in part persuaded by the fact that there had been an order made by the Family Court, having determined that the proposed orders were "just and equitable", and that there was thereby a consideration by the judge in the merits of the orders such that they represent a final determination of the proceeding.
Shortly after the judgment delivered in Goddard Elliott, the New South Wales Court of Appeal considered advocates' immunity, but making no reference to that earlier decision. In Bott v Carter 20 , the Court of Appeal applied the immunity by considering whether the plaintiff's claims sought to impugn the correctness of the judgment. Although in that case a judgment had been made (that the client's employer was not liable for any amount of compensation to him), it was acknowledged that conduct by the client's solicitor leading up to the judgment might fall outside the scope of the immunity, such as failing to respond to the possibility of an offer of settlement, as that involved no challenge directly or indirectly to the ultimate judgment.
It was foreshadowed after the High Court delivered its judgment in D'Orta-Ekenaike that Australian courts would be unlikely to adopt a restrictive approach in applying the immunity to out of court work21, and the decision in Goddard Elliott shows that prediction well-founded. However, there is clearly some judicial unease associated with the immunity, which might be quelled only with further High Court guidance.
1 (1988) 165 CLR 543
2  1 AC 191
3 Giannarelli per Mason J at 555
4 (2005) 223 CLR 1
5 Arthur JS Hall & Co v Simons  1 AC 615
6 The New Zealand Court of Appeal followed the House of Lords in approving the immunity in Rees v Sinclair  1 NZLR 180 and then revoking it in Lai v Chamberlain  3 NZLR 291
7 D'Orta-Ekenaike, per McHugh J at 
8 At 
9 As listed by McHugh J in D'Orta-Ekenaike at  & 
10 Dal Pont, G E: Lawyers' Professional Responsibility, 4th ed, Thomson Reuters at [5.284]
11 Cane, P: The new face of advocates' immunity; (2005) 13 Torts LJ 93 at 100
12 Giles JA at  and Tobias JA at  in Attard v James Legal Pty Ltd  NSWCA 311
13 Attard v James Legal Pty Ltd  NSWCA 311 at  to 
14 Biggar v McLeod  NZLR 9
15 (1997) 26 MVR 481
16  3 WLR 246
17 321 pages delivered on 14 March 2012
18  VSC 87 at 
19 At 
20  NSWCA 89 (judgment delivered 17 April 2012
21 Dal Pont at [5.290]
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