Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

By contrast, in John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd, 271 a real estate agent, who, while marketing a commercial property, misrepresented the lettable area, was unable to rely on the conduit defence. Despite the marketing material containing a disclaimer that the agent did not guarantee the information, it also represented that the agent was a consultant to institutional investors and to developers of major properties. In the Court’s opinion, an agent who so held itself out would not be regarded as merely passing on information without any belief in its truth or falsity. The conduit defence was reaffirmed by the High Court in Google Inc v Australian Competition and Consumer Commission . 272 The ACCC commenced proceedings against Google seeking injunctive relief in relation to allegations that ‘ sponsored links ’ belonging to certain advertisers conveyed misleading and deceptive representations concerning the relationship between those advertisers and their competitors. It was alleged that the sponsored links falsely represented that there was a commercial association between the advertiser and the competitor and that information regarding the competitor could be found by clicking what was, in fact, a link to the advertiser’s website. The High Court unanimously held that by merely publishing or displaying the representation, without adopting or endorsing its content, Google’s conduct fell short of being misleading or deceptive. 273 In reaching that conclusion, the majority was of the view that the advertiser was the ultimate author of the sponsored link and that all Google’s software did was produce an automated response to a user’s search term in light of the advertisement’s requirements. 274 The Court also expressed the view that ordinary and reasonable users would have understood that the sponsored links were created by the advertisers (because they were clearly described as ‘sponsored links ’) and that the representations made by those links were those of the advertisers, not Google. 275 Advocate’s immunity At common law, barristers and solicitors are immune from liability for negligence in relation to the conduct of a case in court and work undertaken out of court. 276 The immunity commonly applies in circumstances where the client asserts that, if the case had been prepared and presented properly, a different result would have been reached. 277

According to the High Court, the advocate’s immunity is necessary because without it:

ƒ counsel would be exposed to liability in negligence for breach of a common law duty of care, posing a real risk of adverse consequences for the efficient administration of justice; 278 and ƒ the administration of justice would suffer if court decisions were thought not to be final but rather subject to collateral attack by means of actions against counsel for in-court negligence. 279

271 [1994] ANZ ConvR 294. 272 (2013) 249 CLR 435.

273 Ibid 442. 274 Ibid 459. 275 Ibid 463. 276 Giannarelli v Wraith (1988) 165 CLR 543, 559.

277 Symonds v Vass (2009) 257 ALR 689, 710. In that decision, the plaintiffs alleged their solicitor negligently failed to plead additional causes of action and failed to properly particularise the claim, which resulted in a settlement on terms less favourable than could have been achieved absent the negligence. 278 Giannarelli v Wraith (1988) 165 CLR 543, 557. 279 Ibid 558.

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