The advocate's immunity from suit does not extend to
negligent advice which leads to the settlement of a case by
agreement between parties.
D'Orta-Ekenaike v Victoria Legal Aid1
(D'Orta) and Giannarelli v
Wraith2 (Giannarelli) remain good authority on the
scope of the immunity.
There are two existing High Court authorities on the limited
circumstances in which lawyers can be sued for their advocacy:
Giannarelli established that there is an immunity that
extends to "work done out of court which leads to a
decision affecting the conduct of the case in
D'Orta held that the advocate's immunity from
suit under the common law extends to protect a solicitor involved
in the conduct of litigation in court.
The scope of the immunity under these authorities was challenged
in these proceedings.
The appellants claimed that earlier litigation to enforce a
guarantee was settled on terms unfavourable to the first appellant
as a result of negligent advice from the respondent, who was his
solicitor at the time.
Specifically, the respondent had advised his clients to agree to
a settlement offer that included filing consent orders. In return
for extra time to pay their true debt, the guarantors agreed to
consent to a judgment for the total indebtedness of the company
with a collateral agreement that the judgment would not be enforced
should the amount owed under the guarantee (which was less than the
agreed judgment) be paid within that extended time. The lesser
guaranteed amount was not paid in time, meaning the guarantors
became liable for the full judgment amount.
The respondent raised the advocate's immunity from suit as a
complete answer to the negligence claim, contending that the
immunity extends not only to negligent advice which leads to a
final judicial determination, but also to negligent advice which
leads to an agreed settlement.
The New South Wales Court of Appeal (NSWCA)
found that the respondent's advice was within the immunity
recognised in Giannarelli, which was therefore a complete answer to
the negligence claim. This decision was appealed to the High
The Law Society of NSW obtained leave to intervene in the High
Court proceedings. Its submissions supported the more liberal
interpretation of the immunity taken by the NSWCA.
What is the scope of the advocate's
The majority — French CJ, Kiefel, Bell, Gageler and Keane
JJ — allowed the appeal. Their Honours held that the test for
the application of the advocate's immunity as stated in
D'Orta and Giannarelli is not satisfied where
the advocate's work leads litigating parties to settle their
Advice to cease litigation which leads to a settlement was held
to be connected in a general sense to the litigation contemplated
by the agreement, but was held not to be "intimately"
connected with a decision of the court. The intimate connection
required to attract the immunity was held to be a functional
connection between the advocate's work and the judge's
decision. That is, the immunity's protection can only be
invoked where the advocate's work has contributed to the
judicial determination of the litigation.
The majority found that their conclusion was not altered by the
fact that the parties' agreement was embodied in consent
orders. Their Honours held that the connection between advice in
relation to settlement (including negligent advice not to settle)
and the ensuing outcome of litigation was merely historical and not
sufficient to enliven the immunity.
Gordon and Nettle JJ both dissented on this point, finding that
the work done in agreeing the consent orders went directly to the
quelling of the proceedings. They found that it was intimately
connected with the work of the Court as the case ended when the
Court gave verdict and judgment in respect of the consent
Reconsideration of Giannarelli and
The High Court declined to reconsider either of the existing
authorities dealing with the extent of the advocate's
To reconsider the previous High Court decisions would
"generate a legitimate sense of injustice" in litigants
who have not pursued claims, or who have lost cases on the basis of
the law as settled by these authorities.3
The High Court re-iterated that the basis of the immunity is
protecting the finality and certainty of judicial
Solicitors should think carefully before disclosing sensitive information to experts in a letter of instruction.
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