Attwells v Jackson Lalic Lawyers Pty Ltd (2016) HCA 16
Australia has for a long time been one of the only common law countries to enshrine a lawyer’s immunity from suit. The common law principle provides lawyers with an immunity from any claim made against them for negligence arising out of their conduct of a Court case and/or work undertaken outside of Court that results in a decision affecting the conduct of the case in Court. The test for establishing whether the immunity applies to work undertaken outside of Court is generally the degree to which the out of Court work has an ‘intimate connection’ with the in Court work.
On 4 May 2016 the High Court of Australia ruled that immunity from suit did not extend to negligent advice provided by a lawyer to its client that led to the settlement of a case by agreement between parties. The majority of the High Court found that the advice to settle the dispute provided by the lawyer was not intimately connected with the conduct of the case in Court in that it did not contribute to a judicial determination of the issues in the case and therefore, the lawyer was not immune from suit. Specifically, the Court stated that ‘the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court’[1].
The immunity from suit has generally been considered to have a relatively wide application and therefore, there has been a level of uncertainty and unease among lawyers regarding its application. The High Court’s judgment has confirmed that although the immunity is wide, it is by no means unlimited. Despite this judgment providing some clarification on what constitutes an intimate connection, there will no doubt be further argument and speculation regarding the application of the immunity into the future. It is relevant to note that the immunity has been read down to general negligence concepts in other comparable common law jurisdictions such as England and New Zealand.
If you have any further questions on the judgment, or for further information, please contact:
Ben Wyatt
Principal
Sladen Legal
03 9611 0115
bwyatt@sladen.com.au
Annabelle Moylan
Associate
Sladen Legal
03 9611 0148
amoylan@sladen.com.au
[1] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) HCA 16 at 38.