Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

Work found not to fall within the immunity includes:

ƒ failure to advise the availability of possible actions against third parties; 296 ƒ failure to advise commencing proceedings in a particular jurisdiction; 297 ƒ the negligent compromise of appeal proceedings leading to the loss of benefits gained at first instance; 298 and ƒ negligent advice that leads to the settlement of a claim in civil proceedings. 299 The question of whether negligent advice not to compromise a proceeding (the opposite of the position in Attwells ), and therefore continue to trial and judicial determination, was covered by advocates’ immunity in Kendirjian v Lepore . 300 In that case, the plaintiff was injured in a motor vehicle accident. The plaintiff sued the driver, who admitted liability, and the matter proceeded to trial on damages. On the first day of trial, the driver made an offer to settle for $600,000 plus costs. The plaintiff’s lawyers rejected the offer without telling the plaintiff the amount of the offer. The trial judge awarded the plaintiff just over $300,000. The plaintiff subsequently became aware of the $600,000 offer and sued his lawyers in negligence. His claims were dismissed at first instance and on appeal on the basis that the immunity applied. The plaintiff then appealed to the High Court 1. That the immunity does not extend to advice not to compromise a proceeding; 2. The test concerning work done out of court that “ leads to a decision affecting the conduct of the case in court ” requires that the work bear upon the court’s determination of the case; and 3. There must be a “functional connection” between the work of the advocate and the determination of the case for the immunity to apply. The New South Wales Court of Appeal has considered and dismissed a novel argument by the plaintiff (based on the reasoning in Attwells for the first time) that an advocate’s alleged failure to persuade a prosecutorial body to discontinue a criminal proceeding was outside the scope of the advocate’s immunity. The Court in Jiminez v Watson 301 confirmed that a plaintiff cannot seek to bypass the advocate’s immunity by framing their case as a lost opportunity to make submissions to a prosecutorial body, enter a different plea, or have the proceeding against them discontinued in some other way before a judicial determination was made. In accordance with the majority’s reasoning in Attwells , the High Court allowed the appeal, holding:

296 Saif Ali v Sydney Mitchell & Co [1980] AC 198, 216, 224, 232. 297 Macrae v Stevens [1996] Aust Tort Reports 81–405. 298 Donellan v Watson (1990) 21 NSWLR 335. 299 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1.

300 (2017) 259 CLR 275. 301 [2021] NSWCA 55.

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