Australia still holds the torch for advocates’ immunity … NSWCA gives the immunity another airing … A living, breathing get out of jail clause … “Public policy” that the rest of the common law world junked … Ariana Haghighi reports
The dispute concerned the entitlement of the builder to recover the entire amount of the fifth progress claim invoiced to the Cappellos.
Justice Michael Ball upheld the builder’s claim for full payment of the progress claim. The Cappellos were dissatisfied and appealed the judgment with a new plan of attack.
They claimed the builder was non-compliant with clause 15 of the contract, which related to invoice documentation. However, this did not get far as they had not raise this issue at the original hearing.
Undeterred, the Cappellos then moved on to Mr Lyons, claiming he was negligent in failing to raise the defendant’s potential breach of clause 15.
In the District Court, the plaintiffs argued that Lyons owed them a duty of care, breached his duty of care and this resulted in damage. The first element was uncontentious, but there was no merit in the latter two.
Dizzo Judge Elizabeth Olsson upheld many of Lyons’ defences. It was incumbent on the Cappellos to prove the builder’s non-compliance with clause 15, which was already factually contentious, and they needed to establish that this non-compliance rendered the progress claims invalid.
Judge Olsson dealt with the contractual compliance issues in detail, but the silver bullet was her findings on the advocate’s immunity. Citing Australian cases such as D’Orta and Attwells, the trial judge upheld that the principle of advocate’s immunity applies to cases of solicitor negligence.
The Cappellos once again saddled up for an appeal – this time self-represented – claiming the primary judge erred in finding that the advocates’ immunity is a complete defence.
The appeal bench of Anthony Meagher, Carolyn Simpson and John Griffiths went into considerable detail on the advocate’s immunity, particularly its applicability to work done outside the courtroom.
Simpson AJA led the way and outlined the principle of D’Orta:
“An advocate cannot be sued by his/her client for negligence in conduct of a case in court, or in work out of a court which leads to a decision affecting conduct of a case in court.”
This principle was derived from English authority, and adopted into Australian law in Giannarelli.
Since then the immunity from suit has been abolished in every common law country, except Australia
In Giannarelli, Anthony Mason CJ claimed that the rationale for the immunity “rests on considerations of public policy”.
He went on to say that this protection is not afforded for the benefit of the advocate, but the protection of justice. The immunity promotes res judicata, the finality of dispute resolutions, whereas re-litigation poses adverse consequences for the administration of justice and court efficiency.
While the existence of this doctrine is indisputable, its scope is hotly debated. The D’Orta principle refers to negligence both inside and outside the courtroom.
In the Cappello case, Simpson stressed the work outside court must be intimately connected with the cause in court.
Citing Mason in Giannarelli, to confine the immunity to the courtroom would only protect advocates regarding their “tactical handling of proceedings”.
When examining the applicability of doctrine to pre-trial legal advice, the court turned to Attwells, where it was held that the immunity does not extend to negligent advice that leads to settlement, as this is not advice that impacts a decision made in court.
It appears Mr Cappello understood this test differently to the High Court, taking it to believe that the solicitor’s conduct needs to involve an act (a conscious decision), not an omission.
He argued that Lyons did not even consider a breach under clause 15 of the contract, so he could not have made a decision regarding this information.
Simpson came to the rescue and in this situation found that “decision” amounted to a judicial determination, and Mr Lyons’ negligence was intimately connected to this.
Finally, she reaffirmed that the advocates’ immunity provides a complete answer to the question of Jim Lyons’ culpability.