High Court refuses to extend the advocates’ immunity – Kendirjian v Lepore [2017] HCA 13

On 29 March 2017 the High Court handed down its judgment in Kendirjian v Lepore [2017] HCA 13 (Kendirjian v Lepore), choosing to maintain the advocates’ immunity as recently outlined by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16. Kendirjian v Lepore silences a NSW line of jurisprudence that attempted to extend the advocates immunity. In this blog post I discuss what the advocates immunity is, the extent of the advocates’ immunity prior to Kendirjian v Lepore, and the effect of the decision.

What is the advocates’ immunity?

Advocates’ immunity is a common law doctrine that barristers and solicitors will be protected from claims brought against them arising from their conduct of litigation. For example if a client brings an action in negligence against their barrister for failing to cross examine a key witness on a crucial point in proceedings, the barrister may be protected from the negligence claim by the advocates’ immunity. Some jurisdictions (i.e. the UK and NZ) have abolished the advocates’ immunity completely. The advocates’ immunity applies in Australia in limited contexts. 

What was the extent of the advocates’ immunity in Australia prior to Kendirjian v Lepore?

A distinction is made between advocates’ in-court work and advocates’ out of court work. In-court work such as the example given in the preceding paragraph will attract the immunity. However, out of court work will only attract the immunity if it is sufficiently connected to in court work. The connection required has been described as:

·         “Work done out of court which leads to a decision affecting the conduct of the case in court”; and

·         “Work intimately connected with work in a court”.

These tests were first formulated by the High Court in Giannarelli v Wraith (1988) 165 CLR 543 at 559-560 (per Mason CJ) and were again affirmed by the High Court majority in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 31 (per Gleeson CJ, Gummow, Hayne and Heydon JJ). In 2016 in Attwells v Jackson Lalic Lawyers [2016] HCA 16 the High Court again affirmed these tests and refused to extend the immunity. A very brief summary of the three cases follows:

1.       Giannerelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Mr Giannerelli commenced negligence action against his barrister who allegedly failed to advise he had a good defence to perjury proceedings and failed to object to certain inadmissible evidence tendered by the Crown. The Victorian Full Court held that the advocates’ immunity applied to protect the barrister from the negligence claim. Mr Giannerelli appealed to the High Court. The High Court majority (4:3) dismissed the appeal. Mason CJ’s leading judgment forms the basis of advocates’ immunity jurisprudence in Australia. The following extract from pages 559-560 of the CLR is frequently cited:

“Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v. Sinclair (1974) 1 NZLR 180 where his Honour said (at p 187):

"... the protection exists only where the
particular work is so intimately connected with the
conduct of the cause in Court that it can fairly be
said to be a preliminary decision affecting the way
that cause is to be conducted when it comes to a
hearing".”

The High Court majority held that the immunity applied to Mr Giannerelli’s counsel. Counsel had overlooked the operation of a section of the Royal Commissions Act, failing to raise the section as a defence and failing to raise it as a ground of objection to the reception of evidence. Both these failures fell within the category of in court work as they were clearly incidents of the conduct and management of the case in court.

2.       D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Mr D’Orta-Ekenaike was charged with rape and alleged that his legal representatives (Victoria Legal Aid and a barrister engaged by VLA) were negligent in advising him that he did not have any defence to the charge, that he would receive a suspended sentence if he entered a guilty plea at committal, and if he did not plead guilty and contested the charge at trial and was found guilty he would receive a custodial sentence. The alleged negligent advice was supposedly given on two occasions in barristers chambers, two days before the committal hearing and on the day of but before commencement of the committal hearing.

The High Court majority approved the reasoning of Mason CJ in D’Orta. The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ quoted the passage of Mason CJ extracted above, summarising the test as “work done out of court which leads to a decision affecting the conduct of the case in Court” or “work intimately connected with work in a court”. I have extracted the relevant paragraph:

“Again, we consider that no sufficient reason is proffered for doing so. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or "work done out of court which leads to a decision affecting the conduct of the case in court"or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, "work intimately connected with" work in a court. (We do not consider the two statements of the test differ in any significant way.)”

The advice given to Mr D’Orta-Ekenaike was advice about whether to enter a plea at committal. A committal effects whether the matter goes to trial. The advice on plea was work an advocate did out of court but led to a decision which affected the conduct of the case at the trial. The advocates’ immunity therefore applied.   

3.       Attwells v Jackson Lalic Lawyers [2016] HCA 16

A bank commenced proceedings against a company and its guarantors. On the first trial day of proceedings in the Supreme Court of New South Wales, counsel for the guarantors informed the court the proceedings had settled, and consent orders reflecting the settlement were made by the court. The guarantors then commenced action against counsel alleging negligence in the advice to consent to judgment being entered against them in the terms of the consent orders and in failing to provide advice as to the effect of the consent orders.  

Counsel for the guarantors sought to extend the advocates’ immunity, arguing that the immunity extends not only to negligent advice leading to a final judicial determination but also to negligent advice that leads to an agreed settlement. The High Court unanimously rejected this argument which they categorised as out of court work with insufficient connection to in court work:

“In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties' agreement was embodied in consent orders”.

In 2016 the High Court was constituted by French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. In 2017 with the departure of Chief Justice French, Justice Kiefel stepped up to the role of Chief Justice and Justice Edelman was appointed as a new judge of the High Court. The constitution of the court deciding Kendirjian v Lepore was therefore different to the High Court that decided Attwells in 2016. Nethertheless, the High Court refused to reconsider Attwells or extend the situations in which the advocates’ immunity will protect barristers and solicitors from suit.

Conflicting NSW authority

Prior to Attwells, the NSW Court of Appeal handed down the decision of Donnellan v Woodland [2012] NSWCA 433 (Donnellan). Mr Woodland commenced proceedings against his lawyers who had provided advice about offers to compromise (offers to settle outside of court proceedings usually in an effort to avoid the costs associated with court proceedings - these offers can continue to be made even when court proceedings have commenced) in drainage easement proceedings under s88K of the Conveyancing Act 1919 (NSW). It was not necessary for the Court of Appeal to decide whether the advocates’ immunity applied because they found Mr Donnellan had not been negligent. Nevertheless, Macfarlan J (with whom Leeming JA and Begin CJ in Eq agreed), found that if Mr Donnellan had been negligent, the immunity would have applied, as the omission or conduct relating to the offers to compromise had affected the conduct of the case in the court by requiring the court proceedings to continue. 

I won’t go into the details of the case too much because:

1.       It is a clear case of judicial activism on the part of the Court of Appeal (3 judges of the 5 on quorum) to extend the immunity in the face of clear High Court authority to the contrary, especially when it was not necessary to determine the issue; and

2.       Although the District Court and Court of Appeal (3 judges unanimously) in Kendirjian v Lepore relied on the case, the High Court rejected the NSW approach, as it is incongruous with both D’Orta-Ekenaike and the more recent High Court authority of Attwells.

Facts and background of Kendirjian v Lepore

Mr Kendirjian was injured in a car accident in November 1999 and commenced legal proceedings against the driver for damages. On the first day of the District Court trial the driver offered to settle for $600,000 plus costs. The offer was not accepted, the trial proceeded and Mr Kendirjian was awarded only $308,432.75 plus costs by the District Court judge. Mr Kendirjian commenced negligence proceedings against his solicitor Mr Lepore and his barrister, who both claimed that the advocates’ immunity protected them from the negligence claims.

The District Court and Court of Appeal both held that the advocates’ immunity protected Mr Kendirjian’s legal representatives from his negligence claim. Both courts relied on the obiter dicta in Donnellan to support their conclusions.

Question to be determined by the High Court

Does the immunity extend to negligent advice given to reject a settlement offer where court proceedings are on foot?

High Court analysis

The High Court unanimously held that the advocates’ immunity did not extend to protect Mr Kendirjian’s legal representatives from the negligence action. Edelmen J wrote the leading judgment. Edelman J reiterated the importance of the 2016 case of Attwells where a High Court majority held the advocates’ immunity did not extend to advice which leads to a compromise of litigation by agreement between parties, or advice not to settle proceedings which leads to the continuation of proceedings (note that Nettle J and Gordon J dissented on the advice not to settle point). There must be a functional connection between the advocate’s work and the determination of the case. Negligent advice not to settle proceedings gives rise only to a historical connection between the advice and continuation of litigation and this is not a sufficient connection for an advocate to be immune from suit.

The appellants argued that Attwells should be distinguished and in the alternative that Attwells should be reopened to reconsider the part of the decision where the joint judgment approves the remarks of Mason CJ in Giannarelli. Counsel argued that part of Mason CJ’s remarks in Giannerelli had not been approved by the joint judgement in D’Orta-Ekenaike and that therefore the scope of the immunity could be extended. Edelmen J refused to accept this argument, stating that there is no apparent difference between work done affecting the conduct of the case in court and work done affecting the way that case is to be conducted at the hearing, and even if there was a difference, this was not evident in the joint judgment in D’Orta-Ekenaike.

The appeal was unanimously dismissed by the High Court. However, Justice Nettle and Justice Gordon departed from the majority in their reasoning. Nettle J agreed that the advocate’s immunity did not apply in light of the High Court’s decision in Attwells but reiterated the view he expressed in Attwells that the advocates’ immunity should be extended to situations where negligent advice leads to the rejection of a settlement offer and a less favourable outcome at trial. The immunity should be extended as where the negligence action proceeds it is likely to result in the re-litigation of issues determined at trial.  Gordon J acknowledged the appeal should be dismissed in light of Attwells but agreed with Nettle J’s additional reasons and reiterated her position as expressed in Attwells that the immunity should be extended.

Short summary of the law today

The advocates’ immunity will apply where the work done out of court leads to a decision affecting the conduct of the case in court or where the out of court work is intimately connected with work in a court. The connection must be more than merely a plausible historical connection. There must be a functional connection between the work of the advocate and the determination of the case. The giving of advice either to stop or continue litigation does not itself affect the judicial determination of the case.

How to put together a brief for a barrister

An essential skill for a law graduate is being able to put together a brief for a barrister. Even if you work in an advisory practice and rarely work on litigious matters, you may have to brief a barrister to provide advice or settle a contract or other document. If you worked as a paralegal prior to graduating, you may already have experience putting together a brief. Law firms expect law graduates to be able to put a brief together, yet the skills required are rarely taught. Mastering the ability to put together an accurate and succinct brief is important as it will help you gain the trust of your team, the barrister you are working with, and can lead to increased responsibility such as drafting observations and managing matters with a barrister directly.

1.       Identify purpose of the brief

To identify the purpose of the brief ask yourself what work the barrister will be doing for you. Will the barrister be attending court, attending conciliation, settling a document, writing an advice, providing oral advice, or providing other legal services? At this point you may want to consider the Bar Rules which provides guidance on what work a barrister can and cannot do. In NSW, Bar Rule 74 states:

74. A barrister must confine the barrister’s professional work to:

a) Appearing as an advocate;

b) Preparing to appear as an advocate;

c) Negotiating for the client with the opponent to compromise the case;

d) Representing the client in a mediation;

e) Giving legal advice;

f) Advising on documents to be used in the client’s affairs;

g) Acting as a referee, arbitrator or mediator; and

h) Carrying out work properly incidental to the kinds of work referred to in (a)-(g).

The briefs you are most likely to prepare as a graduate are:

·         Brief to advise (on a legal question, on evidence, etc.); and

·         Brief to appear (at a hearing, at directions, at a costs hearing, etc.).

2.       Select your barrister, ensure a retainer is in place and communicate need to use barrister with client

If you work at a law firm, chances are a barrister has already been selected, a retainer is in place and your client is aware of the need to involve a barrister in their matter. Ask your team’s secretary or assistant to ensure the barrister knows the brief is coming. If unsure, phone Chambers ahead of time to ensure the barrister is able to take on the brief. If you work at a smaller firm, the client’s budget may be smaller and may dictate which level of barrister you use, so it is important to communicate with your client about their budget and expectations prior to selecting a barrister.

3.       Write observations

If you are fresh from university, a more senior lawyer is likely to have written the observations for you. If that is the case, ask if they need you to proof read the observations. Even if you do not need to proof read the observations, you should read the observations thoroughly, as they will identify the documents you will need to locate and collate for the brief.

Points to note when drafting observations:

·         Prominently position the text that explains what you expect the barrister to do (e.g. attend a hearing on 17 March 2016) and any timeframes (e.g. please provide a written advice on this matter within two weeks of receipt of this brief);

·         You should include a short narration of key facts, but you can refer to documents included in your brief such as a chronology or facts contained in a client’s affidavit or draft affidavit;

·          The focus on the brief should be the legal issues you have identified and any analysis you have undertaken of these key issues;

·         Refer to all documents you intend to attach to the brief as this will help put the documents in context for the barrister;

·         If you are going to include documents of marginal relevance, justify why you have included them in the brief;

·         Number your paragraphs;

·         Triple check spelling and punctuation.

A full blog post on drafting observations is coming soon, but for the meantime, look at observations colleagues have drafted in the past to help you understand what content should go in the observations.

4.       Collate and prepare documents

All relevant but no irrelevant documents should be provided to the barrister. Irrelevant documents waste the barrister’s time and may unnecessarily increase costs for your client. Ordinarily a document should only be included if it is referenced in the observations. If a document is not important enough to be mentioned in the observations, the barrister probably does not need the document. If you have not written the observations yourself, and you are coming into the matter cold, to find out which documents to collate, read the observations, as observations should refer to each key document included in the brief. You may also have to prepare documents from scratch. Unless exceptional circumstances exist, your brief should include a chronology. If no chronology has been made, take the initiative to make one yourself.

If you have created a quality legal research memorandum for the matter, include this in your brief. Not only will this help the barrister with authorities, the document will have your name on it, and is a good way to start getting your name out there. If your boss does not want it included, they will let you know when they review the brief.

5.       Select folder and dividers

Many barristers edge on the OCD end of the personality spectrum. They like to have new white folders and the more expensive looking dividers. For the uninitiated, there are two types of folders you will encounter as a lawyer:

1.       D-Ring –a basic folder with two (or four) D-Rings at the centre. To open the D-Rings you snap them open with your hands. This is the cheaper variety which barristers generally do not like. If you look at the hands of older barristers you will see faint scar lines from past altercations with such folders.

2.       Lever Arch – similar to the D-Ring, but with a lever mechanism that opens the rings for you in a civilised and safe manner. Generally these folders will be stronger and more robust than the basic D-Ring. There are a variety of different brands out there, but if you go to Office Works to have a look, the best ones available are the Bantex A4 2 Ring Lever Arch File. A Lever Arch costs between $6 to $10, so if it is cheaper you are probably not looking at a Lever Arch. Always purchase white. Black and coloured folders are for lawyers who do not know what they are doing.

When the matter concludes, the barrister is meant to return the brief back to you in the folder(s) you provided, so if you are working at a law firm and not paying for the folder yourself, you may as well give them the best. When selecting dividers, choose plastic over paper, as they are more robust. If you only have paper dividers, try and at least use the dividers with reinforced hole punches. Some QC’s and SC’s have preferences when it comes to types of folders (2 binder or 4 binder – but always white lever arch), photocopying (double or single sided – if in doubt copy single sided), and securing documents (staple, paperclip or nothing), and types of dividers (i.e. A-E or 1-5). Ask your Senior Associate or other colleagues if they know about the barrister’s preferences. If in doubt phone the Barrister’s Chambers. You may be asked to redo the whole task if the barrister is not impressed on your first effort.   

6.       Insert cover page and index

Check if your firm has a template for the cover page and/or index. Your team’s legal assistant may be able to help you with this if you are struggling. If you are making the folder cover from scratch it should contain:

1.       Type of brief – brief to advise, brief to appear;

2.       Name of the matter – i.e. if it is a litigious matter the name of both the parties to the dispute;

3.       Name of barrister and address of barrister’s chambers;

4.       Name of your firm, name of contact lawyer and contact details of lawyer.

Remember you need a cover page for the front of the folder and a label to insert in the folder’s spine so that when the folder is on a shelf you can identify what is inside the folder.

7.       Get brief checked by more senior colleague

This step is particularly important if you are a paralegal, a graduate who is not admitted or a lawyer who is still on a probationary practising certificate. Even senior lawyers can benefit from having another lawyer read over their work.

8.       Make copies of the brief

For large litigation matters you will usually need three copies: the original for you to keep, a copy for the barrister, and a copy for the junior barrister. If it is an advice, you may just need the original and one copy for the barrister. Do not fall at the last hurdle. Make sure your photocopying is accurate and that you have not photocopied double sided documents as single sided documents.

9.       Deliver the brief

If the brief is urgent, offer to deliver it by hand. Meeting your barrister in person is one of the best ways to gain the trust of your barrister. Do not just shove it into their hands and leave, unless the barrister is in an obvious hurry, such as where the barrister is robed up and about to attend court in the morning. Stand your ground, as the barrister may ask you about the brief, and using your knowledge gained from reading the observations and the documents in the brief, you may be able to assist the barrister and even impress the barrister. Other options for delivery obviously include express post, courier and hand delivery by a paralegal. Do not send a brief by ordinary post, as you will not be able to track the brief. Express post and registered post both allow for parcel tracking. Keep a copy of the tracking number. If the barrister does not receive the brief for any reason, you will be first in the line of fire.

Happy brief making!