Attwells v Jackson Lalic Lawyers Pty Ltd

Facts

The plaintiffs retained Jackson Lalic Lawyers to act in commercial litigation. The solicitors allegedly gave negligent advice that induced the plaintiffs to settle the proceedings by entering into consent orders. The plaintiffs later sued the solicitors in negligence, and the solicitors claimed the advocate's immunity barred the action.

Issues

1. Whether the advocate's immunity from suit extends to negligent out-of-court advice that leads a client to consent to a court order. 2. Whether the 'intimate connection' test for immunity requires that the work be done in the courtroom or be work that leads to a decision affecting the conduct of the case in court.

Holding

The High Court held (by majority) that the advocate's immunity did not extend to the solicitors' negligent advice, because advice that induces a party to settle and enter consent orders is not work intimately connected with work done in court in the relevant sense — it does not involve the exercise of an advocate's forensic judgment in conducting litigation before the court.

Ratio decidendi

The advocate's immunity from suit applies only where the work done out of court is so intimately connected with work done in court that it can be fairly said to be a preliminary decision affecting the conduct of the case in court; it does not extend to advice given in the course of negotiating a settlement that results in consent orders, because such advice does not involve the exercise of forensic judgment directed to the conduct of litigation before a court.

Obiter dicta

The majority noted that the policy justification for the immunity — protecting the ability of advocates to make decisions in the 'heat of battle' without collateral challenge — does not apply to settlement negotiations conducted outside court, and cast doubt on whether the immunity should be further extended beyond its established boundaries. Gageler J, in a separate concurrence, suggested the existing immunity rests on questionable foundations and may warrant reconsideration in an appropriate case.

Significance

Attwells significantly narrows the scope of the advocate's immunity in Australian law by confining it to work that genuinely involves forensic judgment exercised in the conduct of litigation before a court, excluding negligent settlement advice that produces consent orders and thereby strengthening client access to remedies against negligent lawyers.

Key authorities

• D'Orta-Ekenaike v Victoria Legal Aid D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1applied
• Giannarelli v Wraith Giannarelli v Wraith (1988) 165 CLR 543considered
• Batistatos v Roads and Traffic Authority (NSW) Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256cited
• Saif Ali v Sydney Mitchell & Co Saif Ali v Sydney Mitchell & Co [1980] AC 198distinguished