Button J of the Supreme Court of New South Wales in Cairncross v Anderson t/as ERA Legal (No 2) [2016] NSWSC 1326 has identified a number of principles contained in the plurality judgment in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16; (2016) 90 ALJR 572 (“Attwells”).
According to his Honour, those principles (at [31]-[40] (omitting references to the cases)) are as follows:
- The existence of the advocate’s immunity from suit in Australia is confirmed.
- The immunity protects an advocate involved in the conduct of litigation in court from suit arising from that conduct.
- The immunity continues to extend to work done out of court by an advocate, but only to work which leads to a decision affecting the conduct of the case in court. In other words, it remains the case that no sharp point of distinction is drawn between the work of an advocate inside and outside the courtroom.
- However, the extension of the immunity to work done outside the courtroom is strictly limited. In particular, the immunity does not extend to all work in any way connected to litigation. There must be an intimate connection.
- For the immunity to apply to work done out of court, the intimate connection that must exist between the work done in court and the work done out of court must be a functional connection between the advocate’s work and the judge’s decision.
- Mere connection, whether chronological or otherwise, between work done out of court by an advocate and work done in court, without the requisite functionality of connection or intimacy of connection, will not attract the immunity.
- The immunity is confined to work done in or out of court that plays a role in the ultimate judicial determination of the litigation. The rationale underpinning the immunity is founded upon finality of judicial determinations in the sense of making findings of fact or law, and quelling controversies.
- For that reason, work done in or out of court resulting in consent orders (and analogous outcomes) does not generally attract the immunity.
- The plurality left open the question of the attraction of the immunity to certain kinds of “consent” orders at [61] of its judgment, namely, those cases where, although the parties have agreed upon the terms of the order which a court is asked to make, the making of the order itself requires the resolution of issues by the exercise of judicial power, for example, where representative proceedings are settled, where proceedings on behalf of a person under a legal incapacity are to be compromised and similar such cases.
At [41] of his judgment, Button J gave a hypothetical example of the “very limited extent” to which he considered the immunity extended to work done by an advocate out of court and, at [42], said that Attwells had firmly confirmed the circumscribed role that the immunity had to play with regard to such work.
In the case before his Honour, a motion had sought to have the plaintiff’s claim against a firm of solicitors struck out on the basis that it was doomed to failure because of the operation of the immunity. At [44], his Honour said that, as regards the NSW proceedings, they prima facie fell within the special category identified by the plurality of the High Court in its judgment at [61] but because the question of the attraction of the immunity to that category had been left open, it was not possible to be satisfied that the claim was doomed to fail.
For a detailed summary of Attwells, see K Ottesen, “Attwells v Jackson Lalic Lawyers Pty Limited – High Court retains advocate’s immunity from suit but holds that out of court settlements are outside its scope”, 18 May 2016.
