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Volume 4

2011

Number 1

Deconstructing Dorta-Ekenaike: A Critique of Justifications Provided for Advocates Immunity by the High Court
SCOTT LANG *

Abstract
Advocates immunity was either never recognised or has been abolished in every common law jurisdiction except Australia. In DOrta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, the High Court of Australia not only affirmed that barristers, solicitor advocates and instructing solicitors remain immune from suit but also indicated that should the immunity be abolished, the Court will impose extremely high thresholds for proving negligent advocacy. This article argues that none of the reasons given by the Court are sufficient to justify retaining the immunity or the imposition of such stringent thresholds.

* BA/LLB candidate, The University of Queensland. The author would like to express his sincere thanks to

Dr Francesca Bartlett for her helpful guidance on this project.

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Deconstructing Dorta-Ekenaike: A Critique of Justifications Provided for Advocates Immunity by the High Court
SCOTT LANG

Contents

1. Introduction .............................................................................................................................................. 49 2. Legal Basis of Advocates Immunity in Australia ......................................................................... 49 2.1 Lack of Contract to Public Policy Considerations ........................................................................ 49 2.2 Giannarelli v Wraith: Australian Immunity Based on Public Policy ..................................... 50 2.3 DOrta-Ekenaike v Victoria Legal Aid: Public Policy and the Finality Principle ............... 51 2.4 Conclusion on the Legal Basis of Advocates Immunity in Australia ................................... 53 3. Public Policy Considerations............................................................................................................... 54 3.1 The Cab-Rank Principle ........................................................................................................................ 54 3.2 Difficulty in Determining Causation .................................................................................................. 55 3.3 Analogy with Immunities Granted to Participants in Court Proceedings.......................... 58 3.4 Maintenance of Advocates Duty to the Court ............................................................................... 58 4. The Finality Principle ............................................................................................................................ 60 4.1 Logical Flaws in the Finality Principle.............................................................................................. 61 4.2 Negligence Proceedings against Advocates Do Not Inevitably Involve Relitigation ........................................................................................................................................................ 62 4.3 Experience in Other Jurisdictions....................................................................................................... 63 4.4 Advocates Liability as an Exception to the Finality Principle ................................................ 64 5. Alternate Methods of Protecting Finality ....................................................................................... 65 6. Relevance of the Elements of Negligence ........................................................................................ 66 6.1 Connection between Justification for Immunity and Potentially Restricted Liability.......................................................................................................................................................... 66 6.2 Duty and Standard of Care..................................................................................................................... 67 6.3 Causation and Damage ............................................................................................................................ 68 7. Conclusion.................................................................................................................................................. 69

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1.

Introduction

Barristers, solicitor-advocates and their instructing solicitors remain immune from civil suit in Australia for the conduct of a case in court, for work done out of court that is intimately connected with the conduct of the case in court and work done out of court that leads to a decision affecting the conduct of the case in court.1 In retaining the immunity, the High Court expanded a common law rule that has been abolished virtually everywhere else in the world. The fact that the position under Australian law is unique does not mean it is wrong. However, it certainly suggests the need for justification by reference to identified errors of so many other courts and legal systems or proof of such local divergences as warrant Australian law taking its own peculiar direction.2 This article will argue that advocates immunity from negligence should be abolished in Australia, as it no longer has sound legal foundations. Advocates immunity is currently based upon public policy considerations concerned with the administration of justice and the finality principle. Neither these public policy considerations nor the finality principle can sufficiently justify retaining the immunity. Significantly, the finality principle is logically flawed and undermined by experiences in other jurisdictions, and can be protected by more specialised rules than blanket immunity. The article will suggest that finality could be ensured by modifying and developing existing common law rules, in particular, the abuse of process rules. It will also go further and argue that for abolition of the immunity to be effective, the courts must ensure that the tests and thresholds for negligent advocacy do not excessively restrict liability and prevent clients suing their advocates. This is significant because the High Court has already indicated that should advocates immunity be abolished, it will simply impose more difficult standards to prove negligence, in particular for causation.3

2.

Legal Basis of Advocates Immunity in Australia

2.1 Lack of Contract to Public Policy Considerations

The legal foundation of advocates immunity has changed significantly at common law in both England and Australia. In the middle ages, advocates could be sued in contract. Gradually, the English common law embraced the principle of Roman law that an advocate could not sue for fees or be sued.4 Advocates immunity was originally founded on the lack of contract between barristers and their clients.5 When the House of Lords held that persons could be liable in negligence for advice and misstatement, regardless of whether there was a contractual relationship,6 the lack of contract between an advocate and client could no longer justify

2 3 4 5 6

DOrta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 31 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 33 (McHugh J), 117 (Callinan J) (DOrta-Ekenaike). The joint majority stated that they considered the two branches of out-of-court work to mean the same thing. Ibid 71 (Kirby J). His Honour dissented, holding that the immunity should not be extended to include instructing solicitors. Ibid 27 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 54-55 (McHugh J). Lai v Chamberlains [2007] 2 NZLR 7, 49 (Tipping J) (Lai). Re Le Brasseur and Oakley [1896] 2 Ch 487, 494. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The High Court of Australia held to the same effect in the landmark case of Hawkins v Clayton (1988) 164 CLR 539.

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immunity. Soon afterwards, the House of Lords placed the immunity on its modern footing, holding in Rondel v Worsley7 that the immunity was justified by various public policy considerations related to the administration of justice. However, Lord Reid famously noted that public policy is not immutable,8 allowing for future modification and abolition of the immunity if the public policy considerations on which it was based no longer warranted such protection.

2.2 Giannarelli v Wraith: Australian Immunity Based on Public Policy

In Australia, immunity from civil suit was first recognised by a four-three majority of the High Court in Giannarelli v Wraith.9 Mason CJ, Wilson, Brennan and Dawson JJ held that the immunity was justified by the various public policy considerations that were essential to the efficient administration of justice. The minority of Deane, Toohey and Gaudron JJ based their decision on a matter of statutory interpretation, finding it unnecessary to decide the position at common law. However, in a brief judgment Deane J stated that the public policy considerations relied upon by the majority to uphold the immunity could not outweigh or even balance the injustice and consequent public detriment involved in depriving a person ... of all redress under the common law.10 Each of the majority delivered separate judgments. Mason CJ held that the immunity was based upon two public policy considerations: the need to maintain the advocates duty to the court and the need to prevent collateral attacks upon judgments. His Honour stated that advocates must exercise independent forensic judgment in the presentation of a case. Exposure of counsel to liability would result in less independence and would create a real risk of adverse consequences for the efficient administration of justice. Litigation would tend to become more lengthy, more complex and more costly.11 Mason CJ also stated the immunity was based upon the need to prevent collateral attack on judgments by subsequent negligence proceedings against the advocate, as this would undermine the status of the initial decision and destroy public confidence in the administration of justice.12 Wilson J also held that the immunity was based upon public policy considerations necessary for the efficient administration of justice. His Honour stated that the threat of litigation would affect the exercise of the independent forensic judgment of advocates, resulting in the instinctive motivation of counsel to err on the side of caution by bending to the clients interests .... The administration of justice would be at risk.13 Wilson J stated that the immunity from defamation granted to participants in legal proceedings supported immunity for advocates from negligence by analogy.14 His Honour also stated that if the immunity was abolished, judgments given in the original proceedings would be tarnished by contrary findings in a later negligence action against the advocate, which had a capacity to bring the administration of justice into

7 8 9 10 11 12 13 14

[1969] 1 AC 191 (Rondel). Ibid 227. (1988) 165 CLR 543 (Giannarelli). Ibid 588. His Honour did not elaborate or give reasons for this statement. Ibid 557. Ibid 558. Ibid 573. Ibid. See also 557 (Mason CJ).

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disrepute.15 Other justifications for the immunity mentioned by Wilson J included the difficulty in proving causation and the fact that key witnesses, such as judges and jurors, could not be called to give evidence.16 Brennan J agreed with the reasoning of Mason CJ. However, his Honour specifically mentioned that the immunity was justified by the need to maintain the independent forensic judgment of advocates and implied it was also necessary to ensure continued observance of the cab-rank principle.17 Dawson J held that abolition of the immunity would damage the independent forensic judgment of advocates, with the result that the efficient conduct of the business of the courts would be likely to be impaired.18 His Honour also held that subsequent negligence proceedings against an advocate would constitute a collateral attack upon the original judgment and that [n]othing could be more calculated to destroy confidence in the processes of the courts or be more inimical to the policy that there be an end to litigation.19 Lastly, Dawson J justified advocates immunity by analogy with the immunity against defamation actions granted to participants in court proceedings.20 As this discussion illustrates, the range of reasoning within the majority judgment provides various different public policy considerations upon which advocates immunity is founded.

2.3 DOrta-Ekenaike v Victoria Legal Aid: Public Policy and the Finality Principle
Following the decision in Giannarelli, the House of Lords and the New Zealand Court of Appeal abolished the immunity on the grounds that the public policy considerations identified in Rondel no longer required such protection.21 Contrary to this trend, the High Court of Australia upheld advocates immunity in DOrta-Ekenaike v Victoria Legal Aid by a six-one majority and expanded it to include instructing solicitors. Furthermore, a majority shifted the legal foundation of the immunity from the various public policy considerations identified in Giannarelli to the finality principle. Gleeson CJ, Gummow, Hayne and Heydon JJ delivered a joint judgment that based the immunity on the finality principle, while McHugh J and Callinan J delivered separate judgments referring to various public policy considerations. Kirby J dissented, arguing neither the finality principle nor the public policy considerations identified by the majority could justify the extension of the immunity. The joint majority judgment held that advocates immunity was a rule necessary to give effect to the finality principle. Their Honours emphasised that the courts are the third branch of government, the function of which is the final quelling of controversies.22 Finality requires that controversies, once resolved, are not to be reopened except in a few narrowly defined

15 16 17 18 19 20 21 22

Ibid 574. Ibid. Ibid 579-80. Ibid 594. Ibid 595. Ibid 596. Arthur J S Hall v Simons [2002] 1 AC 615 (Hall); Lai v Chamberlains [2005] 3 NZLR 291, affd [2007] 2 NZLR 7 (Supreme Court of New Zealand). DOrta-Ekenaike (2005) 223 CLR 1, 16-17.

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circumstances.23 The joint majority held that a subsequent negligence action against an advocate would inevitably involve re-litigation of the original matter to prove causation.24 As such, the immunity is required to preserve finality of judgments.25 Their Honours also held that abolishing advocates immunity was inconsistent with the continued existence of judicial and witness immunity, as any re-litigation could not examine the contribution of judges or witness and would thus be inefficient and anomalous.26 McHugh J held that the immunity was based on two considerations. Firstly, there will be great difficulties in proving causation in negligence actions when judges and jurors cannot be called to give evidence.27 Secondly, his Honour expressly agreed with the joint majority regarding the finality principle28 and held the immunity was necessary because of the damage that inconsistent verdicts would have on public confidence in the judicial system if re-litigation was allowed.29 His Honour also seemed to imply that the immunity was required to maintain the independent Bar and because advocacy is a unique profession.30 Callinan J held that the immunity was based on difficulties in proving causation in negligence actions,31 the desirability of finality in litigation32 and damage to the cab-rank principle.33 His Honour also endorsed the various reasons adopted in Giannarelli34 and the reasons of the joint majority regarding finality and analogous immunities.35 Despite the joint majority declaring the basis of the immunity was public policy,36 Hinchy argues that their Honours did not base their findings regarding the need to protect finality on public policy considerations, but on legal principle.37 The reasoning process of the High Court shows that
[t]he joint majority approached the issue of adverse consequences as a consequentialist argument to be considered within the context of the overriding principle of finality and the various rules related to this principle such as res judicata and issue estoppel. [This] constitutes principle-based reasoning even if the potential consequences are referred to as

23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

Ibid 17. Ibid 20. Ibid 20-21. Ibid 21. Ibid 63. Ibid 55-56. Ibid 63. Ibid 38-39. Ibid 117. Ibid 117, 120. Ibid 119. Ibid 116. Ibid 120. Ibid 16. Russell Hinchy, Rejection of Advocates Immunity [2006] New Zealand Law Journal 369, 369-70; Russell Hinchy, Judicial Method and Advocates Immunity in the High Court of Australia and the House of Lords (2006) 13(1) E Law Murdoch University Electronic Journal of Law 187, 194-5 <https://elaw.murdoch.edu.au/issues/2006/1/eLaw_Hinchy_13_2006_11.pdf> at 10 December 2008.

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policy factors. The labelling of the potential consequences as policy factors is not the issue.38

If Hinchys reading is correct, this distinction is significant because it shows that the joint majority consider advocates immunity to be a rule necessary to give effect to the legal principle of finality. Regardless of the theoretical position, it is clear from the joint majoritys reasoning that the need for finality is the primary justification for advocates immunity. However, this does not mean that other public policy considerations cannot also justify the immunity. While the joint majority did not expressly conclude that other public policy considerations could also found advocates immunity, their Honours did not expressly reject this possibility.

2.4 Conclusion on the Legal Basis of Advocates Immunity in Australia

Given the divergent reasoning in both cases, discerning the legal basis for advocates immunity in Australia is difficult. In DOrta-Ekenaike, both McHugh J and Kirby J stated that Giannarelli had no ratio decidendi as the majority justices relied on different public policy considerations to justify the immunity.39 Furthermore, as the High Court in DOrta-Ekenaike did not overrule Giannarelli, the reasoning in both cases is authoritative, which is significant given it does differ in some material respects.40 In DOrta-Ekenaike, although the joint majority did find the finality principle to be the central justification41 for the immunity, this statement clearly allows for subordinate justifications. Indeed, the joint majority expressly mentioned another justification: the difficulty in proving negligence given the continued existence of judicial and witness immunity.42 Moreover, McHugh and Callinan JJ accepted the finality principle as a justification for advocates immunity along with various other public policy considerations.43 It follows that the legal foundation for advocates immunity in Australia is the finality principle, supplemented by public policy considerations: the need to maintain advocates duty to the court, analogy with immunities granted to other participants in court proceedings, the difficulty in proving causation and ensuring the continued observance of the cab-rank principle. Interestingly, since 1969, the basis of the immunity has moved from the inability of barristers to sue for fees, to public policy alone and then to the finality principle supplemented by public policy. Elias CJ commented on this in Lai v Chamberlains, stating that [w]hat is striking is the shifting emphasis both within Courts and over the 40 years since the immunity has been put on its modern footing. Such shifts do not suggest sound foundations.44 This article argues that none

38 39 40

41 42 43 44

Hinchy, Judicial Method and Advocates Immunity, above n 37, 195. (2005) 223 CLR 1, 46-49 (McHugh J), 83 (Kirby J). Chris Bleby, Immunity from Suit: Barristers and Witnesses (Paper presented at the Law Society of South Australia CPD Programme, Adelaide, 21 February 2006) 2. In particular, the majority in Giannarelli placed much more weigh on public policy considerations generally, and the need to preserve finality as a public policy consideration. (2005) 223 CLR 1, 27. Ibid 21. Some of which were expressly rejected by the joint majority (see below). [2007] 2 NZLR 7, 21.

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of the public policy considerations proffered in Giannarelli or DOrta-Ekenaike are sufficient to justify advocates' immunity. Consequently, advocates immunity should be abolished.

3.

Public Policy Considerations

3.1 The Cab-Rank Principle

In Australia, barristers are obliged to accept a brief in their area of expertise if they would be available to work and an acceptable fee is offered.45 This is known as the cab-rank principle. Brennan J implied in Giannarelli that abolition of advocates immunity would mean barristers would no longer continue to accept work according to the cab-rank principle.46 Callinan J in DOrta-Ekenaike was adamant that the removal of the immunity would intrude upon and diminish the utility of the valuable cab rank rule.47 Essentially, the reasoning is that barristers would refuse to act for unscrupulous clients or those with low prospects of success because they would fear being sued. This would damage the administration of justice because it would make access to competent advocates more difficult. However, the cab-rank principle cannot justify advocates immunity because its practical importance to the administration of justice is low, the principle applies exclusively to barristers and it has statutory force in the form of professional rules that are enforceable by professional discipline proceedings. In practice, the importance of the cab-rank principle to the administration of justice is limited. Various exceptions to the cab-rank principle are recognised by the professional rules, requiring or giving barristers discretion to decline a brief.48 Elias CJ dismissed the cab-rank principle as a justification for the immunity and noted that other professions have a duty to provide services to all, but they do not enjoy immunity from suit.49 Lord Steyn stated that it is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept.50 Lord Hope added its significance in daily practice is not great.51 The common judicial position is that although as a professional ethic the cab-rank principle is important, it does not compel barristers to accept briefs they would not ordinarily accept. Thus, advocates immunity cannot be justified on the cab-rank principle because its importance to the administration of justice is limited. As well as having limited importance, the cab-rank principle cannot justify immunity because it applies exclusively to barristers and not solicitor-advocates or instructing solicitors. The limited

45

46 47 48

49 50 51

Barristers Rules (ACT) r 85; Barristers Rules (NSW) r 85; Barristers Conduct Rules (NT) r 85; Legal Profession (Barristers) Rule 2007 (Qld) r 89; South Australian Barristers Rules (SA) rr 4.3-4.4; Professional Conduct Guidelines (Tas) para 1; Practice Rules (Vic) rr 86-7; Bar Association Conduct Rules (WA) r 77. These rules were sourced from G E Dal Pont, Lawyers Professional Responsibility (3rd ed, 2006). (1988) 165 CLR 543, 580. (2005) 223 CLR 1, 119. See, eg, Legal Profession (Barristers) Rule 2007 (Qld) rr 91-97. For example, r 97(d) gives barristers the discretion to refuse a brief where there is a real possibility they would be required to cross-examine or criticise a friend or relation. Lai [2007] 2 NZLR 7, 34. Her Honour did not give an example, but the commonly cited example is that of doctors: see, eg, Hall [2002] 1 AC 615, 690 (Lord Hoffman). Hall [2002] 1 AC 615, 678. Ibid 714. See also 696-7 (Lord Hoffman) and 740 (Lord Hobhouse).

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class of advocates to which the cab-rank principle relates means it is of marginal relevance and does not provide a sufficient basis to justify the existence of the common law immunity.52 Put simply, it can only justify an immunity limited to barristers, which would be flawed, as it is the substantial duties performed by the advocate from which the immunity derives, not the form of their title.53 Mason CJ in Giannarelli stated that it is the function performed, not the label attached, which gives rise to the limited immunity.54 Therefore, the cab-rank principle cannot found advocates immunity because it applies to a limited class of advocate. Furthermore, advocates immunity is not necessary to protect continued observance of the cabrank principle given that the principle is a statutory obligation enforceable by professional discipline proceedings. Rule 89 of the Legal Profession (Barristers) Rule 2007 (Qld) codifies the cab-rank principle in Queensland and similar provisions exist in all States and Territories.55 Barristers are unlikely to disregard the cab-rank principle, as doing so could lead to professional discipline. Moreover, the courts have inherent power to discipline advocates. Given that there is a specific obligation to obey the cab-rank principle backed by professional discipline proceedings, the indirect incentive provided by advocates immunity is superfluous. As a result, despite the claims of Brennan J and Callinan J, the cab-rank principle cannot justify retaining advocates immunity. The relative importance the principle has for the administration of justice is low. It applies exclusively to barristers and not solicitor-advocates or instructing solicitors, all of whom enjoy immunity from suit. Lastly, the principle is contained in professional rules and can be enforced by professional discipline proceedings.

3.2 Difficulty in Determining Causation

Successful negligence actions against advocates must show that it was a breach of the duty of care that caused the loss to the client. Wilson J in Giannarelli held that determining causation, particularly where there was a jury trial, would be a mind-boggling exercise, piling speculation on speculation.56 McHugh J in DOrta-Ekenaike stated that determining causation would be an unreality and only involve guesswork.57 Callinan J noted that if judges and jurors cannot be called as witnesses, causation would be difficult to explore fully and satisfactorily.58 The joint majority also recognised this, stating that no negligence action could examine the contribution of

52 53 54

55 56 57 58

DOrta-Ekenaike (2005) 223 CLR 1, 15. See also Giannarelli (1988) 165 CLR 543, 594 (Dawson J). Note also that the majority in DOrta-Ekenaike (2005) 223 CLR 1 expanded advocates immunity to include instructing solicitors. The cab-rank principle does not apply to solicitors. (1988) 165 CLR 543, 559. See also Dawson J, who held that if the reason for that immunity lay in public policy ... then there could be no justification for denying the same immunity to solicitors when performing the same functions as those performed by barristers: at 592. See further DOrta-Ekenaike (2005) 223 CLR 1, where the joint majority stated there is no sound basis for distinguishing between advocates according to whether the advocate does or does not have a contract with the client: at 15. See above n 45. (1988) 165 CLR 543, 574, quoting Rondel v Worsley [1969] 1 AC 191, 250. (2005) 223 CLR 1, 63. Ibid 117. Wilson J in Giannarelli (1988) 165 CLR 543, 574 also recognised the inability to call judges and jurors.

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judge or jury, leading to inefficient and anomalous litigation.59 Indeed, the significance given to these arguments by the High Court is an indication that if advocates immunity is abolished, the Court could simply interpret the causation provisions of the Civil Liability Acts60 restrictively in order to impose a difficult threshold for causation, justified on the supposed causal uncertainties involved in negligent advocacy actions. Nonetheless, the difficulty in proving or determining causation cannot justify advocates immunity for two reasons: there is no clear reason why it would be especially difficult to determine causation; and determinations of causation are inherently difficult and would require a degree of guesswork.61 There is no compelling reason that makes proving causation of loss particularly difficult. Clearly neither judges nor jurors can be called as witnesses. However, this does not mean that causation cannot be determined. Indeed, it merely reflects the fact that there is a possibility that key witnesses will not be competent or compellable in all cases. The client and the advocate could both give evidence, and the transcript of proceedings could be used to examine the actions of the advocate and judge. Appellate courts are able to examine the trial transcript and determine that the flagrant incompetence of counsel caused a miscarriage of justice according to the principles of Re Knowles.62 Furthermore, by referring to the trial transcripts, appellate courts are also able to examine the actions of trial judges and determine what these actions caused. In relation to examining the trial transcript, Cane notes:
It is certainly true that judges and witnesses cannot be sued for anything they do or say in court proceedings; but it does not follow that their words and actions cannot be examined for other purposes, such as determining the cause of a courts decision.... There is no obvious reason why such a course of action should be acceptable in appeal proceedings, but not in a negligence claim against an advocate.63

In R v DOrta-Ekenaike,64 for example, the Court of Appeal determined on the basis of the trial transcript that the inadequate direction by the trial judge regarding the guilty plea was the cause of DOrta-Ekenaikes conviction. Moreover, in the earlier case Mason CJ was able to determine that it was the failure of the Giannarellis counsel to object to inadmissible evidence that caused their convictions. His Honour stated that the evidence was essential to the Crown case. Without it the Crown could not have succeeded.65 Transcripts allow courts to determine causation and

59

60

61 62 63 64 65

DOrta-Ekenaike (2005) 223 CLR 1, 21. Their Honours argued this in relation to the analogy between judicial/witness immunity and advocates immunity. However, this point is more relevant to arguments regarding the difficulty of proving causation. Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Civil Liability Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA) s 5C. These pieces of legislation shall henceforth be referred to as the Civil Liability Acts. Paula Gerber, Burning Down the House to Roast the Pig: The High Court Retains Advocates Immunity (2005) 28(3) University of New South Wales Law Journal 646, 653. [1984] VR 751. Peter Cane, The New Face of Advocates Immunity (2005) 13 Torts Law Journal 93, 95 n 15. [1998] 2 VR 140. Giannarelli (1988) 165 CLR 543, 553. The clear implication here is that but for the failure of counsel for the Giannarellis to object to inadmissible evidence, they would not have been convicted and would not have been imprisoned.

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this suggests that there would be no insurmountable difficulty in proving causation vis--vis negligent advocacy. Similarly, there is also no reason that defending a negligent advocacy action would be especially difficult. The plaintiff bears the onus of proof in civil matters; if they cannot prove causation on the balance of probabilities, their claim will fail. McHugh J argued in DOrta-Ekenaike that there would still be cases where defence of the claim may be difficult, even though the onus of proof remains on the plaintiff.66 His Honour claimed that the negligence action brought by DOrtaEkenaike epitomised such a case. With respect, this argument is unconvincing. Given the circumstances of the case, the advice given by the lawyers was a justifiable plea bargain tactic.67 There would have been a strong argument, on the basis of the trial transcripts, that it was the misdirection by the trial judge rather than his lawyers advice that caused DOrta-Ekenaikes loss. Consequently, by using the trial transcripts, the actions of advocates and judges can be examined and breach of duty and causation of loss can be determined; this means there is no reason that makes proving, defending or determining causation in a negligent advocacy action insurmountably difficult. In addition to being able to use trial transcripts to determine causation, the supposed difficulty in proving causation cannot justify retaining advocates immunity because it is not unique to negligent advocacy suits. Mere difficulty in proving or defending an action is no foundation for immunity from suit. As Lord Hoffman noted in Hall, many matters before the courts are difficult to prove or defend.68 Gerber argues that [a]ll negligence cases, by their very nature, require courts to engage in some degree of guesswork.69 The issues that need to be determined by the tribunal of fact are inherently difficult: questions of intervening acts that break the chain of causation, questions of contributory negligence and questions regarding what is the cause and effect of an action. The High Court has noted that conclusions regarding causation are often reached intuitively and without lengthy articulation of reasons.70 There is nothing unique about the guesswork inherent in proving causation against an advocate. Thus, advocates immunity cannot be justified by the difficulty in proving causation, as this is inherent to determining cause and effect. It can, therefore, be seen that contrary to the claims of Wilson J, McHugh J and Callinan J, any difficulties inherent in proving causation do not justify retention of advocates immunity. There is no reason making it especially difficult to determine causation vis--vis advocacy when trial transcripts can be used to examine the actions of advocates and judges. Any difficulty in determining causation is inherent to the issues being determined, not the particular circumstances of an advocate. Significantly, these arguments also contradict any claim that negligent advocacy actions should pass a higher test for causation.71

66 67 68 69 70 71

(2005) 223 CLR 1, 64. Gerber, above n 61, 650. [2002] 1 AC 615, 699. Gerber, above n 61, 653. Chappel v Hart (1998) 195 CLR 232, 290 (Hayne J). See also 269 (Kirby J). This will be discussed in greater detail below.

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3.3 Analogy with Immunities Granted to Participants in Court Proceedings

Judges and witnesses are granted immunity for what they say and do inside a courtroom. Wilson and Dawson JJ in Giannarelli and Callinan J in DOrta-Ekenaike all held that advocates immunity was justified by analogy with other immunities granted to these participants in court proceedings.72 Despite this, the immunities granted to participants in court proceedings cannot justify retention of advocates immunity because advocates are not in an analogous position to the other participants and these other immunities are founded on public policy considerations that are not applicable to advocates. Significantly, there is no analogy between an advocate and judge or witness. Advocates provide professional services to a client for a fee; the others do not. Advocates have a duty to argue the case of their client; the others do not.73 Advocates owe a duty of care to the client; the others do not.74 When these fundamental differences are accepted, the analogy breaks down. The analogy is based upon circular reasoning; the positions are analogous because all participants in court proceedings have immunity from suit. However, it is the analogous situation of the various positions that should justify similar treatment at law, not similar treatment at law that justifies the analogy. Thus, there is no analogy between advocates and the other participants in court proceedings. Not only is there no valid analogy between advocates and the other participants, the public policy justifications for the immunities are also different. The joint majority in DOrta-Ekenaike claimed the basis of all the immunities is the finality principle.75 However, as discussed below, the finality principle cannot justify advocates immunity. Witness immunity is based upon the need for witnesses to speak freely so that the courts ultimate decision is fully informed. Judicial immunity is based both on the need for freedom of speech and the finality principle. While the free speech justification applies equally to advocates with respect to defamation actions, there is no reason it should apply to negligent advocacy, as negligent advocacy does not assist the court to make a fully informed decision. Indeed, advocates immunity is the only court participant immunity that can be pleaded against a negligence claim; the other immunities would never need to be pleaded because judges and witnesses do not owe a duty of care to the client.76

3.4 Maintenance of Advocates Duty to the Court

Advocates owe a duty to the court as well as a duty to the client. The majority in Giannarelli held that abolishing advocates immunity would lead advocates to favour their duty to the client in order to prevent the client suing them.77 This would lead to prolix during trial, making unnecessary arguments and extending cross-examination; all of which would make the

72 73 74

75 76 77

(1988) 165 CLR 543, 573 (Wilson J), 596 (Dawson J); (2005) 223 CLR 1, 113 (Callinan J). Gerber, above n 61, 652. Lai [2007] 2 NZLR 7, 34 (Elias CJ, Gault and Keith JJ); DOrta-Ekenaike (2005) 223 CLR 1, 101 (Kirby J); Hall [2002] 1 AC 615, 679 (Lord Steyn), 698 (Lord Hoffmann); Barbara Hocking and Stewart Muirhead, Forensic Immunity to Negligence Actions: Continuing Challenges for the Common Law (2002) 22(1) University of Queensland Law Journal 91, 107-8. (2005) 223 CLR 1, 19. Gerber, above n 61, 652. The exception being expert witnesses. (1988) 165 CLR 543, 557 (Mason CJ), 573 (Wilson J), 579 (Brennan J), 594 (Dawson J).

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administration of justice inefficient. Indeed, their Honours suggested that the mere threat of proceedings would cause these results. Nevertheless, advocates immunity cannot be justified on the need to maintain the duty to the court for various reasons: acting in accordance with the duty to the court could never amount to negligence, other professions that have conflicting loyalties do not enjoy immunity, imposition of liability leading to defensive practice affects other professions and the duty to the court is maintained by the threat of professional sanction, both formal and informal, as well as the powers of the trial judge. It is widely accepted that acting in accordance with the duty to the court cannot amount to negligent advocacy. The duty to the court is paramount; the duties cannot conflict.78 In principle, therefore, advocates would have no reason to engage in defensive advocacy and favour the interests of their client above their duty to the court. In addition to this, there are other professions that owe conflicting duties but do not have immunity from suit. Solicitors, for example, owe a duty to the court to ensure that the client has complied with the requirements of disclosure of documents.79 However, solicitors cannot generally claim immunity from suit. Doctors have conflicting loyalties between their duty to their patient and their duty to ensure the health of the greater community, but cannot claim immunity from suit.80 Conflicting loyalties are not unique to the profession of advocacy. Accordingly, the mere existence of the duty to the court cannot justify advocates immunity because there is no conflict of duties and other professions have conflicting loyalties. However, many argue that in practice the mere threat of proceedings, regardless of merit, would encourage defensive advocacy and, therefore, immunity is necessary.81 This reasoning was dismissed by the joint majority in DOrta-Ekenaike as not of determinative significance in deciding whether there is an immunity.82 Defensive practice resulting from the imposition of liability upon other professionals has not been considered sufficient justification for immunity from suit. It cannot be denied that negligence liability has resulted in the defensive practise of medicine; but it has never been accepted that this justifies immunity from suit for doctors, despite the increased financial and accessibility costs to the administration of healthcare. Even Callinan J stated:
Risk of action does no doubt conduce to the defensive practice of a profession, in turn leading to delay and unnecessary expense. That this has not been thought sufficient reason to confer immunity upon other professionals does raise the question whether it should do so in relation to lawyers. Standing alone, it might not.83

78 79

80 81 82 83

DOrta-Ekenaike (2005) 223 CLR 1, 15 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 101 (Kirby J); Giannarelli (1988) 165 CLR 543, 572 (Wilson J), 594 (Dawson J). In Queensland the duty is codified in Uniform Civil Procedure Rules 1999 (Qld) r 226(1). If the solicitor believes the client has made misleading disclosure, they have a duty to withdraw from the case: Myers v Elman [1940] AC 282. Hocking and Muirhead, above n 74, 107. See also DOrta-Ekenaike (2005) 223 CLR 1, 62 (McHugh J). His Honour cites the case of Harvey v PD (2004) 59 NSWLR 639 as such an example. Giannarelli (1988) 165 CLR 543, 557 (Mason CJ), 573 (Wilson J), 594 (Dawson J). (2005) 223 CLR 1, 16. Ibid 117.

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Extension of liability leading to defensive practice cannot justify immunity for advocates because liability has resulted in defensive practice in other professions with no immunity. It can, therefore, be seen that advocates immunity cannot be justified by an advocates duty to the court because the tendency towards defensive practice following the imposition of tortious liability is something that affects other professions that do not enjoy immunity. Finally, advocates immunity is unnecessary to maintain the duty to the court because it is maintained by the threat of professional sanction and the powers of trial judges. Advocates understand the importance that maintaining their duty to the court has for the administration of justice and would be unlikely to ignore this duty for fear of being sued.84 Trial judges can also intervene during court proceedings to ensure that advocates do not subordinate this paramount duty to the interests of the client.85 Courts have inherent powers to discipline advocates and the duty to the court is enshrined in various statutory obligations enforceable by professional discipline proceedings.86 Moreover, failure to observe the duty to the court will likely lead to informal sanction; that is, briefs will no longer be offered to that advocate.87 Neither formal nor informal professional sanction can be insured against, whereas professional negligence can be insured against. Consequently, given the relative severity of these sanctions compared with professional liability, advocates would still maintain their duty to the court in the absence of advocates immunity.

4.

The Finality Principle

The finality principle is the only justification remaining for the retention of advocates immunity. In Giannarelli it was relied on by all majority judges. Their Honours held that re-litigation would destroy public confidence in the judicial branch of government and the administration of justice.88 In DOrta-Ekenaike the finality principle was relied upon almost as the sole justification by Gleeson CJ, Gummow, Hayne and Heydon JJ, while McHugh J and Callinan J both referred to the need for finality as a justification for the immunity. The joint majority held that
the central justification for the advocates immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy.89

Their Honours stated that there is public interest in the effective functioning of the courts and re-litigation would damage this effectiveness.90 For the joint majority, re-litigation of the

84 85 86 87 88 89 90

Gerber, above n 61, 648. Hocking and Muirhead, above n 74, 107. See, eg, Legal Profession (Barristers) Rule 2007 (Qld) rr 23-33. Gerber, above n 61, 649. Giannarelli (1988) 165 CLR 543, 558 (Mason CJ), 574 and 576 (Wilson J), 579 (Brennan J), 595 (Dawson J). DOrta-Ekenaike (2005) 223 CLR 1, 20-21. Ibid 20.

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controversy would be an inevitable and essential step in demonstrating that an advocates negligence in the conduct of litigation had caused damage to the client.91 However, this article argues that advocates do not need immunity from suit in order to preserve finality and prevent re-litigation. Firstly, the finality principle relied upon by the joint majority is logically flawed with respect to intermediate decisions. Secondly, suing an advocate does not inevitably require re-litigation of the original controversy. Thirdly, the pre-existing specialised rules of issue estoppel, res judicata, autrefois convict, autrefois acquit and abuse of process can protect finality without requiring blanket immunity for advocates. Fourthly, the claims made in relation to the public interest in finality and public confidence in the administration of justice are undermined by experience in other jurisdictions. Lastly, a negligence action against an advocate is analogous to the other narrow exceptions recognised to the finality principle and, therefore, should also be an exception. As a result, advocates immunity is unnecessary to preserve finality and prevent re-litigation.

4.1 Logical Flaws in the Finality Principle

To begin with, the finality principle is logically flawed and cannot support advocates immunity in relation to rulings by intermediate courts that are later overturned on appeal. The joint majority in DOrta-Ekenaike concluded that an action for negligent advocacy at trial, where the decision of the court is later overturned on appeal, was no different to the situation where there was no appeal.92 Their Honours argued that the finality of the entire process (trial and all subsequent appeals) requires protection. The reasoning given by the joint majority on this point has been described as rather difficult to follow.93 Their Honours stated that grounds of appeal could be totally unconnected with negligent advocacy, given that the issue in a criminal appeal is miscarriage of justice not negligence.94 As a result, they reasoned that the logic of the finality principle requires protection of every ruling given by a court, regardless of whether it is later overturned. This reasoning is logically flawed as it appears to overlook the fundamental difference between intermediate and final decisions. The joint majority noted that the principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system.95 When a judgment is successfully appealed, it is no longer the final determination of the controversy and the appellate court has essentially declared that it was flawed. Given that the original decision is no longer final or binding, its finality no longer requires protection. As such, any action for negligent advocacy at trial could not, by definition, disturb the finality of the judgment, as it has already been removed by the appellate court. Even if it is accepted that the finality of the entire process requires protection (as the joint majority argued), there is no logical reason to prevent negligent advocacy actions from proceeding in

91 92 93 94

95

Ibid (emphasis added). Ibid 30. Cane, above n 63, 100 n 39. DOrta-Ekenaike (2005) 223 CLR 1, 30. In civil cases, there can be no appeal on the ground of negligent advocacy: Standing Committee of Attorneys-General, Advocates Immunity from Civil Suit: Options Paper (August 2005) 29. DOrta-Ekenaike (2005) 223 CLR 1, 17.

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such cases. This is because the negligence action is perfectly consistent with and does not challenge the outcome of the entire process. As the Standing Committee of Attorneys-General recognised:
In respect of the possibility of conflicting judgments, provisions enabling summary dismissal of unmeritorious claims or collateral attacks should ensure that claims against advocates could not be made unless a criminal verdict has been overturned on appeal. If the original judgment has been overturned, there can be no public policy objection to an action for negligence against the legal advisers, as arguably there can be no conflict of judgments.96

In DOrta-Ekenaikes case, for example, the Court of Appeal quashed the conviction and ordered a retrial. In the Giannarellis case, the High Court quashed the convictions and there was no retrial. In both cases, the clients were attempting to prove there had been negligent conduct during proceedings that ultimately produced no final order. Contrary to what the majority stated in Giannarelli, public confidence in the administration of justice would not decrease by allowing the negligence proceeding, as the appellate court has already declared the original judgment wrong. Contrary to what the majority in DOrta-Ekenaike stated, there is no public interest in preventing a challenge to the finality of the original proceeding by way of a negligence action, because the appellate court has reversed the order and it is no longer final. Consequently, in relation to intermediate decisions later overturned on appeal, the finality principle is logically flawed and cannot support advocates immunity.

4.2 Negligence Proceedings against Advocates Do Not Inevitably Involve Re-litigation

In addition to being logically flawed, the finality principle cannot found advocates immunity because suing an advocate in negligence does not, as the joint majority claimed, require relitigation of the original controversy.97 There would be fundamental differences between the original proceeding and the subsequent negligence action that would mean it would not be relitigation: the parties to the negligence action would be different to those in the original proceeding, the facts and events upon which the two causes of action are based would be different and the causes of action would be different. As Kirby J noted in DOrta-Ekenaike, in any case, the issue raised in a claim of legal professional negligence is necessarily different, in fact and in law, from the issue that has been earlier litigated and determined.98 Any negligence action would litigate the conduct of the advocate in court, not the conduct of the client before the original proceedings. With respect to the claim by the joint majority that determining causation would necessarily involve re-litigation, this does not mean that all negligent advocacy actions would involve relitigation. In some cases, causation would not be under contention and no re-litigation would be

96 97

98

Standing Committee of Attorneys-General, above n 94, 25 (emphasis added). While it is beyond the scope of this article, the joint majority noted that re-litigation would occur when the court examined causation. However, there are causes of action against an advocate that do not include causation as an element: breach of fiduciary duty and breach of duty to the court. Surely in these cases, where causation does not need to be shown, there would be no re-litigation. (2005) 223 CLR 1, 105.

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required.99 In cases where causation is so obvious it cannot be denied, there would be no relitigation. Given that actions for negligent advocacy do not necessarily involve re-litigation, it follows that advocates immunity should be abolished to allow claims that do not amount to relitigation to proceed to hearing. If a claim against an advocate did involve re-litigation, then existing rules designed to protect finality, namely issue estoppel, res judicata, autrefois convict, autrefois acquit and abuse of process rules would operate to prevent the re-litigation and preserve finality. For example, it is commonly accepted that a collateral challenge in civil proceedings to a subsisting conviction is generally an abuse of process.100 Finality would be protected because an action against an advocate would be struck out as an abuse if the plaintiff had not first had the conviction set aside on appeal.101 Therefore, re-litigation is not inherent in an action against an advocate or necessary to prove causation, meaning that advocates immunity is unnecessary to prevent relitigation and preserve finality. Existing rules of finality are sufficient for this purpose.

4.3 Experience in Other Jurisdictions

Not only is the finality principle no justification for advocates immunity, the principle is undermined by experience regarding public interest in finality and public confidence in the administration of justice from other common law jurisdictions. Advocates immunity has been abolished for criminal and civil proceedings in England and Wales,102 as well as New Zealand.103 It appears the immunity is no longer recognised in Ireland.104 It was never adopted in Canada or the United States of America.105 There is also no immunity for advocates in Singapore,106 India107

99 100

101

102 103 104 105

106 107

Thalia Anthony, Australias Anachronistic Advocates Immunity: Lessons from Comparative Tort Law (2007) 15 Tort Law Review 11, 24. Lai [2007] 2 NZLR 7, 44 (Elias CJ, Gault and Keith JJ), 70 (Tipping J), 73-4 (Thomas J); Hall [2002] 1 AC 615, 679 (Lord Steyn), 703 (Lord Hoffman). Lord Browne-Wilkinson and Lord Millett agreed with the reasoning of Lord Steyn and Lord Hoffman. The joint majority in DOrta-Ekenaike (2005) 223 CLR 1 held that because the criteria for allowing an appeal on the grounds of miscarriage of justice are different to the criteria for proving negligence, it is too attenuated to allow plaintiffs who have had their convictions set aside to sue. In response to this, Elias CJ stated in Lai [2007] 2 NZLR 7 that [i]t is almost inconceivable that inadequate representation sufficient for advocate liability for wrong result would not also have led to a miscarriage of justice sufficient for a successful appeal: at 39 (emphasis added). Hall [2002] 1 AC 615. Lai [2007] 2 NZLR 7. McMullen v McGinley [2005] IESC 10. In Canada the immunity was rejected by a single judge of the Ontario High Court of Justice (Krever J) in Demarco v Ungaro (1979) 95 DLR (3d) 385, a judgment that has been widely approved throughout Canada. Most recently, it was endorsed by the Full Bench of the Ontario Court of Appeal in Folland v Reardon (2005) 249 DLR (4th) 167. In the United States, the immunity was rejected in the federal jurisdiction by the Supreme Court in Ferri v Ackerman 444 US 193, 203-4 (Stevens J) (1979). The Supreme Court also held that the position in each State jurisdiction was to be determined by the State Supreme Court or legislature. Chong Yeo and Partners v Guan Ming Hardware and Engineering Pty Ltd (1997) 2 SLR 729, 744 (Yong Pung How CJ). Kaur v Deol Bus Service Ltd AIR [1989] P&H 183, 185 (Sodhi J).

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or Malaysia.108 Only obiter remarks by the Inner House of the Court of Session suggest that the immunity remains part of Scots law.109 Kirby J referred to this experience in DOrta-Ekenaike:
First, as to the suggestion that the immunity of advocates is an essential consequence of the need for certainty and finality of court determinations of legal controversies, it is enough to say that virtually all legal systems of the world, including many that are at least as worthy of respect as our own, flourish without the supposed indispensible immunity. They either have never had it or have now abolished it.110

Similarly, in Hall Lord Steyn referred in particular to Canada: I regard the Canadian empirically tested experience as the most relevant. It tends to demonstrate that the fears that the possibility of actions in negligence against barristers would tend to undermine the public interest are unnecessarily pessimistic.111 It would be erroneous to suggest, as the joint majority did,112 that the minor differences between the various common law legal systems justify diametrically opposed views regarding abstract concepts such as public interest and public confidence. Courts in New Zealand, England and Wales have all held that finality can be preserved by the pre-existing rules of finality that also exist in Australia. Following the abolition of advocates immunity in England, there has been no flood of claims against advocates that damage finality.113 Accordingly, the fact that other similar common law jurisdictions have preserved public interest in finality and public confidence in the administration of justice provides evidence that advocates immunity is not essential to ensuring finality.

4.4 Advocates Liability as an Exception to the Finality Principle

Even if negligent advocacy actions amounted to re-litigation, the finality principle was logically sound and the experience in other jurisdictions was irrelevant to Australia, negligence actions against an advocate are analogous to the other exceptions to the requirement of finality. The joint majority held in DOrta-Ekenaike that the finality principle recognised that controversies could be reopened in a few, narrowly defined, circumstances.114 Elias CJ noted in Lai that the joint majority did not explore the qualifications at any length.115 These qualifications include appeals,116 suing a criminal defendant in tort117 and an injunction to restrain enforcement of a judgment obtained by fraud.118 An action for negligent advocacy is analogous to these exceptions. Convictions may be appealed on the grounds of flagrant incompetence of counsel

108 109

110 111 112 113

114 115 116 117 118

Miranda v Khoo Yew Boon [1968] 1 MLJ 161. Wright v Paton Farrell [2006] SLT 269. However, the House of Lords in Arthur J S Hall v Simons [2002] 1 AC 615 indicated that while its ruling did not affect Scotland, the position in Scotland would be the same as in England and Wales. (2005) 223 CLR 1, 105. [2002] 1 AC 615, 681. See also 695 (Lord Hoffman). DOrta-Ekenaike (2005) 223 CLR 1, 25. Standing Committee of Attorneys-General, above n 94, 17. In Canada, where the immunity was never adopted, there has never been a flood of claims or even a disproportionate level of claims against advocates: Duncan Webb, Ethics, Professional Responsibility and the Lawyer (2nd ed, 2006) 374. (2005) 223 CLR 1, 17. [2007] 2 NZLR 7, 35. DOrta-Ekenaike (2005) 223 CLR 1, 17 (Gleeson CJ, Gummow, Hayne and Heydon JJ). Cane, above n 63, 99. DJL v Central Authority (2000) 201 CLR 226, 244-5 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

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where this amounts to a miscarriage of justice.119 Moreover, an injunction to restrain enforcement of a judgment obtained by fraud is granted because the original determination is tainted by the fraud and the original court did not have the proper facts and authorities necessary to give judgment. Given the importance of competent advocacy in adversarial systems of justice, in situations where a court gives judgment based on negligent advocacy, the judgment could also be said to be tainted by the negligence. The integrity of the trial process, the key to adversarial justice, will have been damaged by the failure to properly present the facts or authorities. Consequently, negligent advocacy suits should be recognised as one of the defined circumstances where controversies may be reopened, because they are analogous to the other exceptions.

5.

Alternate Methods of Protecting Finality

The foregoing arguments have shown that advocates immunity is not necessary to protect finality because the finality of intermediate results later overturned on appeal cannot logically require protection, not all negligent advocacy actions involve re-litigation and experience in other jurisdictions suggests negligent advocacy suits do not destroy the public interest or confidence. However, abolition of the immunity would not mean that there would be no rules protecting finality. Both the House of Lords and Supreme Court of New Zealand held that the rules of issue estoppel, res judicata, autrefois convict, autrefois acquit and abuse of process were sufficient to preserve finality.120 The incremental development of these pre-existing finality rules would also provide sufficient protection for finality in Australia. Various judges have recognised that whether an action represents an unacceptable challenge to finality is a matter of degree.121 Advocates immunity preserves finality but also prevents meritorious claims from proceeding. Utilising the abuse of process rules to strike out negligent advocacy proceedings that are merely a collateral attack or re-litigation of the original case protects finality while also recognising that there will be circumstances where clients will have a valid claim against their advocate that does not undermine finality.122 However, the abuse of process rules were dismissed by the High Court on the grounds that the doctrine relied upon in New Zealand, England and Wales is not the same as in Australia.123 This is a tenuous argument

119 120 121

122 123

Re Knowles [1984] VR 751. Lai [2007] 2 NZLR 7, 41 (Elias CJ, Gault and Keith JJ); Hall [2002] 1 AC 615, 680 (Lord Steyn), 684-5 (Lord Browne-Wilkinson), 701-3 (Lord Hoffman), 752 (Lord Millet). Lai [2007] 2 NZLR 7, 38 (Elias CJ, Gault and Keith JJ); Hall [2002] 1 AC 615, 679 (Lord Steyn), 703 (Lord Hoffman). These judges have stated that generally a collateral challenge in civil proceedings to a conviction is prima facie an abuse of process, but this is not necessarily the case. For example, where the negligent advocacy occurred at trial and the decision of the court has been overturned on appeal. DOrta-Ekenaike (2005) 223 CLR 1, 67 (McHugh J). See also Gleeson CJ, Gummow, Hayne and Heydon JJ at 28-31, where their Honours seem to suggest that all negligent advocacy actions would amount to an abuse of process because of the public interest in preserving finality. However, the deficiency of the abuse of process doctrine at common law has been disputed by the Standing Committee of AttorneysGeneral: Standing Committee of Attorneys-General, above n 94, 25.

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because even if the abuse of process doctrine is presently deficient in Australian law, the common law could develop the doctrine to protect finality when required.124 Furthermore, utilising the abuse of process rules to protect finality would ensure courts can continue to discipline advocates. If the finality principle warrants strong protection such as the joint majority indicated, it would mean that courts could no longer exercise their inherent jurisdiction to discipline rogue advocates, for example by making wasted costs orders.125 Indeed, the joint majority stated challenges to the costs order should not be permitted lest a dispute about wasted costs become the vehicle for a dispute about the outcome of litigation.126 However, it appears unlikely that the courts would accept that finality requires that wasted costs orders can never be made. Clearly, claims for wasted costs orders would not amount to an abuse of process if they were meritorious. It can, therefore, be seen that the incremental development of existing finality rules will provide sufficient protection for finality and also recognise that not all negligent advocacy actions challenge finality; it must be determined on a case-by-case basis.

6.

Relevance of the Elements of Negligence

6.1 Connection between Justification for Immunity and Potentially Restricted Liability
Difficulties involved in proving negligence against advocates feature prominently in the reasoning of the High Court in Giannarelli and DOrta-Ekenaike. In particular, the causal indeterminacy involved in such claims has been emphasised by various judges as a reason to retain immunity. Due to the continued existence of the immunity, there have been few judicial comments regarding the tests and thresholds that would be applied to determine advocate negligence once the immunity is abolished. Importantly, no member of the High Court has proposed definitive and exhaustive tests or thresholds for each element of negligence in the context of advocacy. However, there are already indications that if advocates immunity is abolished, the High Court will develop the common law and interpret the provisions of the Civil Liability Acts so as to impose difficult tests and thresholds that limit advocate liability for negligence. These indications are contained in hypothetical examples and general statements made by High Court judges in various cases; these examples and statements go beyond a mere recognition that proof of negligent advocacy may be difficult. While it remains unclear how such tests or thresholds would be precisely framed, it appears clear they would be applied strictly; essentially substituting the protection afforded by the immunity with the protection of these high standards. This article argues that the courts must ensure that for there to be an effective abolition of advocates immunity the tests and thresholds adopted for negligent advocacy must not restrict liability, thereby acting as a practical barrier to claims against advocates. Critically, the courts must recognise that advocates owe clients a duty

124

125 126

Anthony, above n 99, 25. Indeed, the need to develop abuse of process rules was recognised by Lord Hoffman in Hall [2002] 1 AC 615, 705. His Lordship stated it would merely be a matter of judicial application to the facts of each case. See, eg, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134, in which a wasted costs order was granted against the solicitors. DOrta-Ekenaike (2005) 223 CLR 1, 30.

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of care for work within the scope of advocates immunity, the standard of care is that of a reasonable professional and that causation includes proving the client would have obtained a more favourable result. Tests and thresholds that require higher standards would unnecessarily restrict advocate liability.

6.2 Duty and Standard of Care

Failure to impose a duty of care upon advocates is a potential limit to liability that, while unlikely to arise, would be effectively the same as retaining the immunity. Some academics have argued, based on obiter comments by Gaudron J,127 that no duty of care should be imposed on advocates because the High Court does not have a coherent doctrinal approach to the imposition of duties of care.128 What is known is that public policy is recognised as a relevant factor to consider 129 and, given the findings regarding public policy in Giannarelli and DOrta-Ekenaike, it is possible that the High Court would refuse to impose a duty of care upon advocates. However, there would be no justification for such a refusal. Kirby J noted in DOrta-Ekenaike that [t]here are few relationships that are closer, involving at once neighbourhood, proximity, reliance and vulnerability of the client, than that with legal advisers in connection with litigation.130 Abolishing advocates immunity but refusing to acknowledge a duty of care would make no practical change.131 If public policy considerations and the finality principle cannot justify retaining immunity, then they cannot justify refusal to impose a duty of care. Thus, to ensure clients can sue their advocates, the courts must impose a duty of care upon advocates.132 Importantly, the standard of care required must be that of a reasonably competent advocate. At common law, professionals must exercise the standard of care of the ordinary skilled person exercising and professing to have that special skill.133 In some jurisdictions, the Civil Liability Acts have mandated a reasonable standard of care for all professionals. There will be no breach of duty where the professional acted in a manner widely accepted by peer professional opinion as being competent.134 These provisions state that peer professional opinion need not be universally accepted and that differing or conflicting opinions supported by a significant number of practitioners will still be reasonable. This provides the courts with the opportunity to accept an extremely broad standard of advocate practice as being reasonable. Experience in both Canada and the United States has shown that in the absence of immunity, the courts will impose an extremely low standard of care upon advocates, to account for public policy considerations

127

128 129 130 131 132 133 134

Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209, 230. Her Honour stated that [i]n my view, proximity more precisely, the nature of the relationship mandated by that notion may exclude the existence of a duty of care on the part of legal practitioners with respect to work in court. Whatever the position, it is one that derives from the law of tort, not notions of immunity from suit. Matthew Groves and Mark Derham, Should Advocates Immunity Continue? (2004) 28 Melbourne University Law Review 80, 121-2. Ben Hartley, Advocacy, Policy and Potato Chips: The Future of Advocates Immunity in Australia (2003) 14 Insurance Law Journal 151, 170. (2005) 223 CLR 1, 105. Ibid 34 (McHugh J). Note that clients can sue their advocates for misleading and deceptive conduct under s 38 Fair Trading Act 1989 (Qld). Rodgers v Whitaker (1992) 175 CLR 479, 487 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ). Civil Liability Act 2002 (NSW) s 50; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act 1936 (SA) s 41; Civil Liability Act 2002 (Tas) s 22; Wrongs Act 1958 (Vic) s 59.

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and the need to protect finality.135 However, [t]he case for a distinct approach towards the profession as a whole is virtually impossible to make, given the parallels drawn between the respective positions of legal and medical practitioners in Arthur Hall v Simons and Demarco v Ungaro.136 If public policy cannot support advocates immunity, then it cannot support an extremely low standard of care. The courts must ensure that when interpreting and applying the common law or legislated standard of care to advocates, they do not accept a low standard of peer professional opinion regarding competency or adopt an extremely broad interpretation of the term widely accepted. Otherwise, it will be unnecessarily difficult to prove negligent advocacy.

6.3 Causation and Damage

Furthermore, the application of the general test for causation to advocates by the courts must not unnecessarily restrict advocate liability. In most jurisdictions, the common law regarding causation has essentially been codified in the provisions of the Civil Liability Acts. Under these provisions, causation requires the plaintiff to show that the breach of duty was a necessary condition of their loss and that it is appropriate for the defendants scope of liability to extend to that loss.137 McHugh J in DOrta-Ekenaike stated that a plaintiff would have to prove that but for the negligence of their advocate, they would have been acquitted or found non-liable.138 This is a restrictive formulation, which excludes claims that but for negligent advocacy there would have been a more favourable result and loss of chance claims. Under this approach, plaintiffs could not sue for: negligent advocacy resulting in a higher sentence, negligent advocacy that resulted in a costs order made against them, negligent advocacy that resulted in a larger quantum of damages being awarded against them (if they were found liable) or negligent advocacy where the plaintiff succeeded but was denied a specific remedy or received limited damages.139 McHugh Js formulation would also prevent plaintiffs from claiming for lost chance of acquittal or finding of non-liability. Such claims have been allowed in Australia against negligent solicitors for conduct outside the scope of the immunity, despite the fact there has also been causal

135

136

137

138 139

Anthony, above n 99, 27. Note that both the Canadian and American courts have since increased the standard of care to that of a reasonable professional, on the grounds that too few negligence actions were succeeding. Kit Barker, Unfamiliar Waters: Negligent Advocates, Egregious Errors and Lost Chances of Acquittal (2005) 24(2) University of Queensland Law Journal 467, 469. See also Webb, above n 113, 378-9; Stanley Yeo, Dismantling Barristerial Immunity (1998) 14 Queensland University of Technology Law Journal 12. Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Civil Liability Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA) s 5C. (2005) 223 CLR 1, 54-55. See also 27 (Gleeson CJ, Gummow, Hayne and Heydon JJ). See, eg, Keefe v Marks (1989) 16 NSWLR 713, where the barrister won the case for the plaintiff but failed to claim interest on damages. The majority accepted that this was negligent conduct that caused loss to the plaintiff: at 718-9 (Gleeson CJ), 728-9 (Meagher JA). Their Honours held that advocates immunity prevented an action against the barrister. Nevertheless, such negligence would not fall within the test enunciated by McHugh J.

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uncertainty.140 If loss of chance has been accepted by the courts as a valid claim in relation to solicitors, it must also be accepted as a valid claim against advocates; there is no reason for such claims to be excluded given the fact that the nature and source of causal uncertainties are exactly the same.141 Thus, successful claims made against non-advocates show that the formulation of McHugh J would unnecessarily restrict advocate liability. Excluding claims by adopting a restrictive test for causation would also seem illogical when compared with claims against advocates for negligence outside the scope of the immunity. Clients have been allowed to recover from their barrister where they had been advised to proceed with an unwinnable case.142 These clients could never have proved that but for advocate negligence they would have succeeded, and yet they were awarded damages. It would, therefore, be illogical to adopt different tests of causation that allow clients with hopeless cases to recover against their advocates for conduct outside the immunity, but refuse recovery to a client who lost a chance or would have obtained a more favourable outcome but for negligent advocacy within the scope of the immunity. Consequently, if the abolition of advocates immunity is to be effective, the standard proposed by McHugh J must be rejected. The requirement that a plaintiff must show they would have been acquitted or found not liable would seem to be applying a stricter test of causation ... in respect of defective trial advocacy than that applied in other instances of causal indeterminacy.143 It is clear that not all negligent conduct currently protected by the immunity would satisfy the test of causation proposed by McHugh J. Loss arises from negligent advocacy in a plethora of ways. Clients must be allowed to prove that they would have obtained a more favourable result or that they lost a chance of obtaining such a result; otherwise, the abolition of advocates immunity will not be effective.

7.

Conclusion

Because it has no sound legal foundation, advocates immunity must be abolished in Australia. Examination of the reasoning of the High Court shows neither error in the reasoning of other courts nor local differences that justify a unique approach. None of the public policy considerations invoked in support of the immunity justify its retention. Continued observance of the cab-rank principle is protected by other means. Difficulty in proving causation is inherent to negligence actions and can be overcome by use of transcripts. There is no analogy between advocates and other participants in court proceedings. Conflicting loyalties are not unique to advocates and the duty to the court can be enforced by other means.

140

141 142

143

Barker, above n 136, 471, 477. Barker cites the following cases where clients recovered against their negligent solicitors for loss of chance: Nikolaou v Papasavas Phillips & Co (1989) 166 CLR 394 and Green v Berry [2000] QCA 133. See also Greg Gordon, Not Yet Dead: Wright v Paton Farrell and Advocates Immunity in Scotland (2007) 70(3) Modern Law Review 471, 475. Barker, above n 136, 477. Note that the ability to claim against advocates for loss of chance was also denied by the Ontario Court of Appeal in Folland v Reardon (2005) 249 DLR (4th) 167. See, eg, Kolavo v Pitsikas [2003] NSWCA 59, where a barrister advised a client they had a good negligence case, but it was clear that the defendant did not owe a duty of care. There was no way the client could have satisfied the causation test of McHugh J, because she could never show that she would have been successful. Gordon, above n 140, 474.

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Nor can the finality principle justify retaining the immunity. The principle is logically flawed. Negligent advocacy actions do not inherently require re-litigation. Experience in other jurisdictions shows immunity is unnecessary to protect finality. Significantly, negligent advocacy actions are analogous to other exceptions to finality and should also be recognised as an exception. Existing rules at common law protect finality and abuse of process rules, in particular, can be modified and developed by the High Court to ensure re-litigation and collateral attack do not occur. Once the immunity is abolished, the courts must ensure that the tests and thresholds adopted for negligent advocacy do not unnecessarily restrict liability. The High Court placed prominence on the difficulties in proving causation as a reason to retain immunity. Notably, there are already indications that if the immunity is abolished, difficult tests and thresholds for negligence will be imposed to limit liability and preserve the practical effect of immunity. A duty of care must be imposed upon advocates to exercise the care and skill of a reasonably competent advocate. The test for causation must not be restricted to proving there would have been a successful result; it must include proving there would have been a more favourable result or loss of chance. Such tests are consistent with liability for lawyers without immunity and for negligence outside the scope of the immunity. Only if these standard tests are adopted will the abolition of advocates immunity be effective.