By Paul Gregoire and Ugur Nedim
In 1996, Mr D’Orta-Ekenaike was charged with rape. So, the Melbourne man sought legal assistance from Victoria Legal Aid, which subsequently retained the services of a barrister. And despite the accused claiming innocence, this barrister advised him to plead guilty, as he had no defence.
D’Orta-Ekenaike then pleaded guilty to the rape charge at the pre-trial committal hearing. However, as his trial commenced the defendant changed his plea to not guilty.
The prosecution went on to raise D’Orta-Ekenaike’s earlier plea of guilt in court as evidence against him, and he was found guilty and sentenced to three years prison time.
On appeal, the Victorian court ordered a retrial. And prior to hearing the case again, a pre-trial proceeding ruled against the prosecution being able to raise the earlier guilty plea as evidence during the new trial.
And based on the evidence put before it, a jury subsequently acquitted the defendant of the crime.
D’Orta-Ekenaike then attempted to sue Legal Aid and the barrister over having pressured him into pleading guilty in the first place. He claimed that he’d suffered loss and damage due to the negligent advice of the lawyers, which included time in prison, lost income and psychotic illness.
The Victorian County Court ordered a permanent stay on the case based on legal professionals being immune from being sued for any negligence involved in court-related work. And when special leave to appeal the decision was granted, the High Court of Australia agreed with that decision.
The practice that excludes Australian legal professionals from being sued over their work when conducting a case is called advocates immunity.
It’s a long-standing common law rule that’s based on ensuring the legal principle of finality is upheld. The finality of court decisions means that once legal proceedings have come to an end, the decision stands.
If finality didn’t take prominence, then clients might be able to sue lawyers for not arguing their case as best as they could have, which would mean numerous cases would have to be retried, and this is not in the public interest.
In the 2005 case D’Orta-Ekenaike versus Victoria Legal Aid, the High Court revisited its 1998 Giannarelli versus Wraith ruling, in which it was found that advocates – a term used to describe barristers – are immune from being sued.
The Court based its decision on two earlier British court decisions. However, since the D’Orta-Ekenaike decision, the UK, and other comparable court systems, such as those in New Zealand and Canada, have abolished advocates immunity.
Indeed, the US court system has never included advocates immunity within its jurisdiction.
Against the tide
In 2000’s Arthur JS Hall versus Simons, the UK House of Lords ruled that advocates immunity was no longer a part of British law, as it wouldn’t affect a barrister’s job, the threat of vexatious claims was exaggerated and issues around retrials shouldn’t be a justification for the immunity.
In this country, the main argument against abolishing advocates immunity is there would be a rush of ex-clients taking former representatives to court.
But this hasn’t happened in the UK or NZ since abolition. And nor does it happen in the US, where citizens are known to be overly enthusiastic when it comes to suing others.
In terms of the D’Orta-Ekenaike case, the majority of the High Court found that advocates immunity stands. The principal reason was ensuring finality is upheld. And the justices also found that this immunity extends to the court-related work that solicitors carry out.
Immunity doesn’t always apply
Back in 2016, Victorian barrister Stephen Warne suggested that while advocates immunity continues to hold, a May 2016 High Court decision revealed that the prohibition against suing legal professionals over representation is narrowing.
In Attwells versus Jackson Lalic Lawyers Pty Limited, the High Court found an “advocate’s immunity from suit does not extend to negligent advice given by a lawyer which leads to the settlement of a case by agreement between the parties embodied in consent orders.”
Mr Attwells and another party had gone as guarantors against the liability of a company to a bank. The company subsequently defaulted on its obligations to the sum of $3.4 million, so the bank took the guarantors to court.
On the first day of proceedings, Attwells’ lawyers advised him to take a settlement, which involved judgement being made against the guarantors, but they would only be required to pay back $1.75 million.
However, the guarantors’ liability under the guarantee was only $1.5 million. So, Attwells decided to sue his lawyers as they advised him to settle on terms that were worse than the worst possible outcome of the trial.
And the High Court ruled in Attwells’ favour due to there having been no actual “judicial determination” and the advice to settle was not “intimately connected” to the case. Therefore, advocates immunity didn’t stand as there was no need to prevent the erosion of finality.
On advice not affecting a decision
Immunity was again the focus of 2017’s Kendirjian versus Lepore, in which the majority of the High Court found that advocates immunity doesn’t extend to negligent advice, which in no way compromises proceedings, which ultimately end in a judicial decision.
In 1999, Mr Kendirjian was injured in a car accident caused by Ms Ayoub. Five years later, Kendirjian decided to sue the other driver. And on the first day of the NSW District Court case, the woman’s lawyers offered Kendirjian’s legal team a $600,000 settlement.
Kendirjian’s lawyers turned down the offer. And at the end of the case, the judge awarded a little over $308,000.
In the High Court, Kendirjian sought to hold his lawyers negligent as they didn’t mention the amount of the settlement offer to him and nor did they consult with him on turning it down.
The court ruled in Kendirjian’s favour stating that advocates immunity did not extend to the advice given on the settlement offer because it didn’t have any effect on the judge’s ultimate decision.
In both the Kendirjian and Attwells cases, the High Court made a ruling that sided with the client suing the lawyer.
Although, the justices of the court refused to enter into debate around whether advocates immunity should continue to apply in this country, which means the much-derided common law rule continues to apply.
But, as Warne explained in relation to Attwells, negligence claims can be made in relation to a variety of matters that don’t involve questioning of a judicial determination, therefore many more legal professionals are likely to find themselves being sued, as already evidenced with Kendirjian.