Professional Liability Guide

CHAPTER 3 – DEFENCES

In the 2015 decision of Attwells v Jackson Lalic Lawyers Pty Ltd , 280 the High Court was asked to reconsider the advocate’s immunity and overrule its earlier decisions on the point. 281 The High Court upheld the immunity, saying no new issue of principle or policy had been raised that had not been previously considered by the Court such as to warrant its abolition. 282 It also said that abolishing the advocate’s immunity would generate a legitimate sense of injustice in those who had not pursued claims or had compromised or lost cases due to the advocate’s immunity being a part of the common law. It was the High Court’s view that an alteration of the law of that kind is best left to the legislature. 283

For the immunity to apply to work undertaken or advice provided out of court, the work or advice in question must be ‘ intimately connected ’ with the conduct of a case in court, that is:

‘where the particular work is so intimately connected with the conduct of the case in Court that it can fairly be said to be a preliminary decision affecting the way that case is to be conducted when it comes to a hearing.’ 284 In Attwells, the High Court clarified that the ‘ intimate connection ’ required to attract immunity is a functional connection between the advocate’s work and the judge’s decision. 285 It must affect the conduct of the case in court and (in a new emphasis crucial to the outcome in Attwells ) the resolution of that case by that court. 286

Work that courts have held to be intimately connected with the conduct of a case (some of which may now be in doubt following the Attwells decision) includes:

ƒ failing to raise a matter pertinent to the opposition of a maintenance application; 287 ƒ failing to plead or claim interest in an action for damages; 288 ƒ issuing a notice to admit and making admissions; 289 ƒ failing to plead a statutory prohibition on the admissibility of crucial evidence; 290 ƒ interviewing the plaintiff and other potential witnesses; 291 ƒ giving advice and making decisions about what witnesses to call and not call; 292 ƒ working up necessary legal arguments; 293 ƒ considering the adequacy of the pleadings and, if appropriate, taking necessary steps to have the pleadings amended; 294 and ƒ giving advice as to the state of the law in relation to pleading to a charge, even if the advocate misstates the law. 295

280 (2016) 259 CLR 1. 281 Namely, Giannarelli v Wraith (1988) 165 CLR 543; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. 282 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, 18–19. 283 Ibid 19. 284 Giannarelli v Wraith (1988) 165 CLR 543, 560 citing Rees v Sinclair [1974] 1 NZLR 180, 187. 285 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, 12. 286 Ibid 13.

287 Rees v Sinclair [1974] 1 NZLR 180, 187. 288 Keefe v Marks (1989) 16 NSWLR 713, 718. 289 Munnings v Australian Government Solicitor (1994) 118 ALR 385, 388.

290 Giannarelli v Wraith (1988) 165 CLR 543. 291 Keefe v Marks (1989) 16 NSWLR 713, 718. 292 Ibid. 293 Ibid. 294 Ibid. 295 Jimenez v Watson [2021] NSWCA 55.

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© Carter Newell 2023