Timing is everything. On Tuesday, we wrote about the High Court’s pending decision in Kendirjian v Lepore. On Wednesday, the court handed down its decision.
As expected, consistent with the views it expressed in Attwells v Jackson Lalic Lawyers Pty Limited, the court found that advocate’s immunity did not apply to a claim for negligent advice not to settle a case.
Justice Edelman delivered the main judgment, observing that immunity attaches to advocates as a result of their participation as an officer of the court in the quelling of controversies by the exercise of judicial power. The immunity only extends so far as the advocate’s actions are connected to the exercise of judicial power. Here, the barrister claiming the immunity was unable to point to any way in which the advice not to settle was functionally connected with the judicial determination.
While agreeing with the majority decision because he was bound by the authority of Attwells, Justice Nettle reiterated his concerns about the potential for collateral attack of judicial determinations by reason of defences which may be raised in the professional negligence claim. As his Honour observed:
“an advocate faced with such a negligence claim might contend that the trial judge’s assessment of the plaintiff’s credit and reliability was so unlikely or unwarranted that it could not reasonably have been anticipated at the time of advice, or that the trial judge’s assessment of damages was so remarkably parsimonious by reference to current practice that it could not reasonably have been foreseen. Equally, a plaintiff might contend that the trial judge’s assessment of the issues in the case was so predictable that the advocate’s failure to anticipate it was negligent. Such examples can be multiplied.”
Justice Edelman disagreed, observing that in the professional negligence case, the reasonableness of the advice will be assessed at the time it was given and not at the time of the judgment, so it will not involve a question of whether the court’s original judgment was right or wrong. Moreover, there was nothing pleaded in the barrister’s defence in Kendirjian that suggested that the court’s original decision was wrong.
Whilst Justice Edelman’s reasoning was apt on the facts of Kendirjian, it is possible to foresee a case where the defendant seeks to contest the prospects of the original case, and thereby findings in the original judgment as well as any appeal from the original judgment. The professional negligence defendant will not have been a party to the judgment or any appeal, and would not be strictly bound by those determinations.
The emphasis on the advocate’s status as an officer of the court suggests that expert witnesses may also be denied this immunity even though their evidence may very directly inform the judicial determination.
The rationale to avoid re-litigation of disputes is not a blanket justification for advocate’s immunity, which the High Court has decided must still be confined, on established principles, to conduct in court or conduct out of court which has an intimate connection with the conduct of the case in court and a functional connection with the ensuing judicial determination.