High Court reaffirms advocate’s immunity in Australia

The doctrine of advocate’s immunity provides an advocate (whether that be a solicitor or a barrister) with immunity for any claims that may be brought arising out of the advocate’s conduct of litigation. In the UK and NZ the doctrine has been abolished.

On 4 May 2016, in Attwells v Jackson Lalic Lawyers the High Court of Australia confirmed that the doctrine of advocate’s immunity is good law in Australia, however confirmed that the immunity applied only to advice that leads to, or is intimately connected with, the conduct of the case in Court.

The underlying case related to the enforcement of a bank guarantee provided by the appellants. The appellants allege that the respondent advised them to settle proceedings commenced by the bank seeking to enforce the guarantee. The guarantee proceedings were disposed of by the entry of consent orders entering judgment against the appellants/guarantors for the full amount claimed by the bank together with the Court noting a conditional non-enforcement agreement between the parties (which was not of itself an order of the Court).

The High Court was unanimous in its decision to reaffirm advocate’s immunity and refusal to overrule its previous decisions in Giannerelli and D’Orta. In addition to determining that the rationale underlying those decisions remained sound, the majority made it clear that to overrule its previous decisions would “generate a legitimate sense of injustice in those who have not pursued claims or have compromised or lost cases by reference to the state of the law as settled by those authorities“. The majority stated that a decision to abolish advocate’s immunity was one “best left to the legislature.”

You can read more about this decision and the public policy reasons underlying it here (2 – 3 minute read).  However if you wish to discuss any aspects of this case or the doctrine generally please contact me.

Read more on Julie’s LinkedIn post.

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