Giannarelli v Wraith

Facts

The plaintiff sought to sue his former barristers in negligence for alleged incompetence in the conduct of criminal proceedings. The barristers argued they were immune from suit in respect of work done in court and work done out of court that was intimately connected with the conduct of a case in court. The High Court was required to determine whether such an immunity existed and, if so, its scope.

Issues

1. Whether barristers enjoy immunity from suits in negligence arising from their conduct of litigation in court. 2. Whether that immunity extends to out-of-court work intimately connected with the conduct of proceedings in court. 3. The public-policy justifications for any such immunity.

Holding

The High Court held by majority that barristers are immune from liability in negligence for work done in the conduct of a case in court and for out-of-court work that is so intimately connected with the conduct of the case in court that it can be regarded as a preliminary decision affecting the way the case is to be conducted.

Ratio decidendi

A barrister owes no duty of care in negligence to his or her client in respect of work done in the conduct of litigation in court, and the immunity extends to pre-trial work so intimately connected with the conduct of the case in court that it effectively involves a decision as to how the case will be conducted; the immunity is justified on the ground that the administration of justice requires counsel to be free from the divided loyalty that would arise if a duty to the client conflicted with the overriding duty to the court.

Obiter dicta

Mason CJ observed that the immunity rests not on any lack of proximity between barrister and client but on a distinct public-policy ground relating to the integrity of the administration of justice, and that the same policy considerations would in principle apply to solicitors appearing as advocates. The majority also noted that the finality of litigation — expressed through the rule in Henderson v Henderson — provides a further justification for the immunity, as allowing collateral attack on concluded proceedings would undermine the finality of judgments.

Significance

Giannarelli v Wraith established the public-policy foundation for advocate's immunity in Australian law and remained the leading authority until the immunity was reconsidered and ultimately abolished for solicitors and barristers in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, which preserved but substantially recast the immunity on the ground of the finality of judicial decisions rather than divided loyalty.

Key authorities

• Rondel v Worsley [1969] 1 AC 191followed
• Saif Ali v Sydney Mitchell & Co [1980] AC 198considered
• Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465considered
• Henderson v Henderson (1843) 3 Hare 100; 67 ER 313cited