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.

Murphy v Electoral Commissioner [2016] HCA 36 – electoral law, s7 and s28 of the Constitution and the proportionality test

Why this case is important

Murphy v Electoral Commissioner [2016] HCA 36 (Murphy) is an important case for the following reasons:

1.       The High Court clarifies the proportionality test to use in an electoral context when determining whether laws are contrary to s.7 and s.28 of the Constitution; and

2.       The High Court discusses whether the structured approach to proportionality used by the High Court in McCloy v New South Wales [2015] HCA 34 should be extended to Constitutional contexts outside of the implied freedom of political communication.

Murphy also represents the end of the line for challenging current electoral laws in the Commonwealth Electoral Act 1918 (Electoral Act) as the plaintiffs challenged the long existing seven day enrolment and suspension period laws.

Background

The Electoral Act details Australia’s electoral system including how a person can enrol, transfer enrolment, amend an enrolment detail or remove a name from enrolment. A suspension period exists in which time a person’s name must not be added, transferred or removed from the Electoral Roll. The suspension period runs from 8pm on the day the Electoral Rolls close to the close of the poll for the election (suspension period laws).  

When a writ for a federal election is issued, persons who are not enrolled have seven days to lodge their application for enrolment, otherwise they will not be on the Roll for the election and will be unable to vote. Similarly, after the writ is issued, persons who wish to transfer enrolment must do so within seven days if they wish to vote in the division in which they live (seven day enrolment laws). The seven day grace period was introduced into the Electoral Act in 1983 and has existed since then, bar for a short period where the grace period was dramatically shortened (see discussion of Rowe below).

The plaintiffs in Murphy challenged the validity of the suspension period laws and the seven day enrolment laws on the basis they are contrary to sections 7 and 24 of the Constitution. The provisions challenged were sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5), and 118(5). The plaintiffs argued that the effect of the suspension period laws and the seven day enrolment laws is that persons are disqualified from the popular choice (voting) mandated by the concept of representative government provided for in s.7 and s.24 of the Constitution, and that there is no substantial reason for this disqualification.

Previous High Court challenges to Electoral Act provisions

Roach v Electoral Commissioner (2007) 233 CLR 162

In 2004 the Electoral Act was amended so that prisoners sentenced to imprisonment for three years or more were no longer eligible to vote at federal elections. In 2006 the Electoral Act was amended again, the effect being that all sentenced prisoners were disqualified from voting at federal elections.

The majority judges in Roach (Gleeson CJ, and Gummow, Kirby and Crennan JJ) held, relying on the words “chosen by the people” that the concept of representative government in s.7 and s.24 of the Constitution includes a universal franchise, generally held by all adults. Prior to Roach, it was thought that the words “chosen by the people” referred merely to direct and popular choice. The High Court majority created the following two step approach:

1.       Does the provision effect a disqualification from the entitlement to vote? (More generally: Does the provision inhibit or burden the system of representative government envisaged by s.7 and s.24 of the Constitution that the parliament be “directly chosen by the people”?)

2.       Is there a substantial reason for exclusion in that the means adopted is proportionate to the legitimate ends sought to be achieved?

The majority judges held that the 2006 laws preventing all prisoners from voting were invalid, as sentences imposed for shorter periods were often arbitrary and caused by issues such as homelessness. The laws were not proportionate to a legitimate ends, as the criterion for exclusion was unrelated to the seriousness of the offence.

In contrast, the 2004 laws that disqualified prisoners serving a sentence of three years or more were held to be valid, as removing the right to vote for serious misconduct was a “substantial reason” for exclusion from the franchise, and the criterion for exclusion from the franchise was clearly relatable to the seriousness of offending.

Rowe v Electoral Commissioner (2010) 243 CLR 1

In 2006 parliament amended the Electoral Act so that a claim for enrolment had to be made by 8pm on the day of the issue of the writs to be considered for that election, essentially removing the seven day grace period, and only giving potential voters a matter of hours in which to lodge their application for enrolment after the writ for the election was issued. The Act was also amended so that transfer claims had to be made by 8pm on the day of the closing of the Rolls which was fixed as the third working day after the issue of the writs. The amendments were introduced to create a smoother and more efficient electoral system.

The introduction of the 2006 laws diminished the opportunity for enrolment that existed prior to its enactment, satisfying the first limb of the test in Roach. The High Court then considered whether there was a “substantial reason” for the laws. The majority judges came to the same conclusion using a slightly different approach to the second limb of the test in Roach. French CJ concluded there was not a “substantial reason” as the detriment was disproportionate to the benefits produced from a smoother and more efficient electoral system. Gummow and Bell JJ came to the same conclusion but explicitly used the proportionality approach of the majority in Roach. Crennan J, the final judge forming the majority, interpreted a “substantial reason” as being a law “necessary”, “necessary” not being limited to a law that is essential and unavoidable but also a law which was “reasonably appropriate and adapted to serve a legitimate end”. As the laws were not proportionate to the reasons for the amendments, the High Court majority held the laws invalid.

The outcome in Murphy

The outcome was unanimous (French CJ and Bell J, Kiefel J, Gageler J, Keane J, Nettle J, and Gordon J) in that all judges held the provisions imposing the cut off for enrolment and transfer of enrolment are not repugnant to s7 and s24 of the Constitution. However, the judges differed significantly on how they arrived at this conclusion.

The “substantial reason” test

The second component in the Roach test for validity, is that there be a “substantial reason” for exclusion from the universal franchise. The requirement for a “substantial reason” can be traced back to Brennan CJ’s judgment in McGinty v Western Australia (1996) 186 CLR 140. In Murphy, the High Court confirmed that the proportionality test requires and analysis of whether the law is “reasonably appropriate and adapted”. In the context of s.7 and s.28, the law must be reasonably appropriate and adapted “to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”. The “reasonably appropriate and adapted” test for proportionality has been used as the test for validity in a number of constitutional and administrative law contexts including to determine the validity of purposive powers, incidental powers, and powers whose exercise limits the enjoyment of a constitutional guarantee, such as the implied freedom of political communication.

High Court judges differ on how to apply the “substantial reason” test

In Murphy, French CJ and Bell J discussed the proportionality criteria set out by the High Court in the case of McCloy v New South Wales [2015] HCA 34, an implied freedom of political communication case. In McCloy French CJ, Kiefel, Bell and Keane JJ adopted the European approach to proportionality in developing a three step approach:

1.       Suitability – whether the law had a rational connection to the purpose of the provision;

2.       Necessity – whether there was an obvious alternative, reasonably practical means of achieving the same purpose with a less restrictive effect on the freedom; and

3.       Adequacy in its balance – whether the extent of the restriction imposed by the impugned law was outweighed by the importance of the purpose it served.

The High Court in McCloy did not discuss the application of the three step approach to proportionality outside the context of the implied freedom of political communication. In Murphy French CJ and Bell J stated that the McCloy three step “structured” proportionality criteria should be used:

1.       To determine the proportionality of laws burdening or infringing a constitutional guarantee, immunity or freedom; and

2.       In the case of laws burdening the representative government envisaged by s.7 and s.24 of the Constitution, the three step test may be relevant depending on the character of the law.

French CJ and Bell J were of the view the “suitability” component of the three step approach should be used to determine proportionality in all situations where determining whether a law, delegated legislative instrument or administrative act is a valid exercise of the relevant grant of power. No other judges supported the use of the McCloy test in the context of s.7 and s.24 of the Constitution.

Gordon J and Gageler J openly opposed the use of the “structured” proportionality approach in the context of s.7 and s.24 of the Constitution. Gordon J questioned whether the structured approach is appropriate at all in the Australian context, given that the judiciary cannot exercise legislative or executive power in Australia’s separation of powers. Gordon J took particular issue with the “necessity” stage of the structured approach, as this stage invites courts to inquire into alternative means of achieving the same purpose, an inquiry which has a legislative flavour to it. Even if it was accepted the structured approach was appropriate in the Australian context, Gordon J reasoned that there is a significant difference between using the structured approach for the implied freedom of political communication in McCloy and the context in Murphy, as parliament is required to enact laws to provide for an electoral system. This positive role of parliament and the broad scope of legislative power in relation to elections “distinctly marks out the present constitutional context from any inquiry about the implied freedom of political communication”.

Gageler J rejected the application of the “structured” proportionality criteria in McCloy, reiterating his reservations about importing such a structured, prescriptive and open ended approach into Australian Constitutional law, referring readers to his dissenting reasons in McCloy. Gageler J was obviously disappointed with the High Court’s continued use of the structured proportionality criteria, writing “what is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own”.

Keane J did not find it necessary to apply the proportionality test, finding no burden on the Constitutional mandate in s.7 and s.24 of the Constitution.

Kiefel J only briefly discussed the utility of the test in McCloy, stating that the alternative to the three step test in determining proportionality is to ask whether the law is “reasonably appropriate and adapted” to their legitimate end. It is not entirely clear from Kiefel J’s analysis which approach Her Honour preferred, however Kiefel J found that the laws were proportionate, as the effect of the suspension period is balanced by the certainty and efficiency achieved by having a suspension period.

Post Murphy how do I apply the proportionality test in the context of s.7 and s.28 of the Constitution?

Is this the case of “one test to rule them all”? Will the “structured” approach to proportionality in McCloy be used for all proportionality tests in the Constitutional context? The answer for now is no. While French CJ and Bell J are obvious supporters of extending the scope of the structured approach to proportionality used in McCloy to other Constitutional contexts, no other High Court judge in Murphy supported this approach. 

As Gordon J put it:

“It should not be assumed that, because a particular test for proportionality has been adopted in one particular constitutional context, it can be uncritically transferred into another context, constitutional or otherwise, even within the same jurisdiction”.

The structured proportionality test in McCloy can safely be applied only in determining whether a law impugns the implied freedom of political communication (see blog post on McCloy for further details). In other Constitutional contexts, the structured proportionality test is not to be used to determine proportionality. In the case of s.7 and s.28 of the Constitution, when applying the second part of the test in Roach, the proportionality test, ask whether the laws are reasonably appropriate and adapted to achieve the identified end.   

Compulsory retirement ages for judges – is it time for a reformulated “proved incapacity” test?

All Australian jurisdictions have compulsory retirement ages for judges. In this blog post I discuss the reasons for and against compulsory retirement and why compulsory retirement may continue to be the best option until a more satisfactory test can be formulated. 

1. The introduction of compulsory retirement ages

New South Wales was the first state to introduce a mandatory retirement age in 1918, with all states having some form of compulsory retirement age by 1944. The Commonwealth was far behind the states in introducing compulsory retirement ages, mainly due to the fact a referendum was required to create any changes to the tenure of judges.

 

Australian High Court and Federal Court judges have been subject to compulsory retirement ages since 1977 when a successful referendum was held and the Constitutional Alternation (Retirement of Judges) Act 1977 was passed to insert the compulsory retirement provisions into the Constitution. Prior to this, federal court judges could only be removed from office for proved incapacity or misconduct.

 

 2. What are the compulsory retirement ages

Commonwealth

High Court judges are appointed for a term “expiring upon his attaining the age of seventy years” (s.72 Commonwealth Constitution). Judges appointed to a court created by Commonwealth parliament are appointed for a term expiring when the judge reaches the age fixed by parliament. The age fixed by parliament cannot be more than 70 years (s.72 Commonwealth Constitution).

 

State

Supreme court judges in state jurisdictions are also required to retire at the age of 70 (except in NSW where the compulsory age of retirement is 72). State constitutions are flexible, so the mandatory retirement age is often found in statute as opposed to the relevant state constitution.

 

Table showing retirement ages across a selection of jurisdictions  

Court	Compulsory retirement age for  judges	Source	Compulsory retirement first introduced
High Court	70 years	s.72 Commonwealth Constitution	1977
Federal Court	70 years	s.72 Commonwealth Constitution	1977
Supreme Court of South Australia	70 years	s.13A Supreme Court Act 1935 (SA). See also s.74 of the Constitution Act 1934 (SA)	1944
Supreme Court of Victoria	70 years	s.77 Constitution Act 1975 (Vic)	1937
Supreme Court of New South Wales	72 years	s.44 Judicial Officers Act 1986 (NSW)	1918
Supreme Court of Queensland	70 years	s.23 Supreme Court of Queensland Act 1991 (Qld)	1921
Supreme Court of Western Australia	70 years	s.3 Judges Retirement Act 1937 (WA)	1937

 

3. Rationale for compulsory retirement

Several reasons were put forward in the 1977 referendum for introducing a compulsory retirement age for High Court and Federal Court judges, with the key reasons being:

1. A need to open up positions for new judicial appointments in order to maintain vigorous and dynamic courts;
2. Community support for compulsory retiring ages for judges; and
3. A need to avoid removing a judge for “proven incapacity” where a judge is unfit for office due to declining physical or mental health.

Of these three reasons, the third is the focus of this blog post. In my view, the first point has an equally valid counterargument being the need for stability in the judiciary and the maintenance of the perception of judicial independence. As judges are appointed on advice of the government of the day, having a high turnover of judges is not ideal for perceptions of judicial independence. There is also the loss of legal excellence in the judiciary that comes with a compulsory retirement age that is set when many judges are just reaching their prime. It is the norm, not the exception for judges retiring due to the compulsory retirement age to continue working in the law full time after finishing working in the judiciary.

4. Example: High Court retirements

If we look at High Court retirements, the first judge to retire on meeting the compulsory 70 years retirement age was Justice McHugh in 2005, with all other previous High Court judges retiring for different reasons prior to reaching 70 years of age.

 

After retiring from the High Court, Justice McHugh continued to work in the law was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. In 2015 he headed the Special Commission of Inquiry into the Greyhound Racing Industry in NSW which led to the decision to ban greyhound racing in NSW from 1 July 2017. Justice McHugh is currently 80 years old and still working. That is 10 years in which Justice McHugh could have remained on the High Court if there was no mandatory retirement age.

 

All retiring High Court judges since Justice McHugh have retired upon or slightly before reaching the compulsory retirement age of 70:

1. Justice Callinan retired from the High Court in 2007 upon reaching the mandatory retirement age and has conducted a number of government inquiries and reviews since including the Commission of Inquiry into the outbreak of equine influenza in Australia in 2008, the review of the Crime and Misconduct Commission in Queensland in 2013, and the review of the effectiveness of NSW’s liquor lock out laws in 2016. Justice Callinan is working hard almost 10 years after he met the High Court’s compulsory retirement age. 
2. Justice Kirby retired from the High Court in February 2009, shortly before he reached the mandatory retirement age and has since continued to work lecturing as an adjunct professor at the University of Tasmania, advising on reform of the Commonwealth of Nations in his role on the Eminent Pearsons Group and supporting various causes including animal rights.
3. Justice Gummow retired from the High Court in 2012 upon reaching the age of 70, and in 2013 recommenced lecturing in equity at the University of Sydney as well as various subjects at the Australian National University. In 2013 Justice Gummow was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. Note the trend here of Hong Kong taking advantage of Australia’s senior legal talent made available by the compulsory retirement age.
4. Justice Heydon retired from the High Court in 2013 upon reaching the age of 70 and has worked hard post retirement, heading the Royal Commission into Trade Union Corruption in 2015.
5. Justice Hayne and Justice Crennan retired from the High Court in 2015 upon reaching the age of 70, and have been less active than their colleagues in the legal profession post retirement.

These are just a number of examples from the High Court, but the trend is reflected in other courts. Judges are retiring at the compulsory retirement age, not beforehand, and continue to work in the law or related areas after their retirement.

5. The difficulty of formulating a workable alternative

Judges are judicial office holders, and cannot be removed from their office in the way a normal employee can have their employment terminated by an employer. A judge’s tenure can end in four ways:

1. Resignation;
2. Removal for proved misconduct;
3. Removal for proved incapacity; and
4. Judge meets the compulsory retirement age.

 

Section 72(ii) of the Commonwealth Constitution states that Justices of the High Court and of the other courts created by parliament “shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehavior or incapacity”. State jurisdictions have similar legislative provisions.

 

One of the main reasons compulsory retirement was introduced was to avoid the need to remove a judge for “proved incapacity” when a judge fails to recognize it is time to retire. The process of proving incapacity at common law is arduous and no judge wants to end their career in a battle of psychiatric assessments. If a judge was found to have proved incapacity, the finding could also cast doubt on recent decisions, which could in turn effect confidence in the judiciary. Introducing the blanket retirement age of 70 avoids this problem, but it is also a significant waste of legal resources when judges are forced to retire when at their legal peak.

 

Assuming for now we could like to keep these capable judges in the judiciary, the next question is whether you will keep the compulsory retirement age. Most commentators appear to assume the continuation of some kind of compulsory retirement age with the most popular solution to simply raise the retirement age of judges. A commonly suggested age is 75. However, as the High Court retirees of the past decade show, a lawyer may be fit to work as a High Court judge past the age of 75. My view is that instead of assuming incapacity at a certain age, it may be possible to create a tweaked “proven incapacity” test and process for determining incapacity that does not drag a judge through public disgrace and enables a judge to keep their integrity intact. Looking at the four ways in which a judge can be removed from office, this would involve removing the fourth category and altering the third category to provide more certainty on what would constitute “proved incapacity”.

 

1. Change is unlikely to occur soon

Removing the compulsory age of retirement and inserting a more detailed “proved incapacity” test in the Commonwealth Constitution will require a referendum. Significant community support is required before a referendum will even be considered. If change is to occur it will be at the state level first. However, given the population of judges is small in any given state, there is unlikely to be the public or political desire to make changes to the compulsory retirement age or remove the retirement age and insert a new proved incapacity test. Until the public or parliament become interested in the issue, we will continue to see judges retiring at age 70 while still having so much to contribute to the judiciary, the legal profession and the rule of law.

Attwells v Jackson Lalic Lawyers [2016] HCA 16 – High Court rules on the advocate’s immunity from suit

On 4 May 2016 the High Court handed down its decision on whether to extend the advocate’s immunity from suit to situations where negligent advice is given which leads to the settlement of a case by agreement between parties and consent orders. This case summary has been written for junior lawyers working in litigation and law students studying Ethics and the Legal Profession.

The advocate’s immunity from suit

The two High Court precedents on advocate’s immunity are:

1.       Giannarelli v Wraith (1988) 165 CLR 543

The advocate’s immunity was said to extend beyond conduct of a case in court to “work done out of court which leads to a decision affecting the conduct of the case in court” (at 560). Mason CJ described two tests for determining whether work outside of court will attract the immunity:

a.       “work done out of court which leads to a decision effecting the conduct of the case in court” (at 559)

b.      “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” (adopted from the New Zealand case of Rees v Sinclair [1974] 1 NZLR 180) (the “intimately connected” test).

In D’Orta the High Court held that these two tests are essentially the same.

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

In D’Orta, the High Court confirmed there are two categories where the immunity arises (inside of court and outside of court) and approved Mason CJ’s scope of the immunity for work occurring outside of court. The High Court held the immunity applied in the facts before it where an accused was given negligence advice to plead guilty, as the acceptance of this advice to plead guilty effected the determination of the case by the court as the court cannot conclude its function until a conviction is recorded, and the decision about a plea of guilty is intimately connected to the hearing of a criminal case as it is a decision made preliminary to the hearing of a charge which effects the conduct to the matter before the court.

Facts in Attwells v Jackson Lalic Lawyers

Gregory Attwells was a guarantor of payment of liabilities of a company to a bank. The company defaulted on the payments and the bank commenced proceedings against both the company and the guarantors (see Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335). The guarantors were represented by Jackson Lalic Lawyers in the proceedings. Proceedings settled (on what turned out to be negligent advice from Jackson Lalic Lawyers). The settlement was reflected in consent orders. The negligent advice from Jackson Lalic Lawyers included that the guarantors would be liable to pay the bank $3,399,347, when the guaranteed amount was $1,856.122, and the guarantors were not liable to pay more than this amount. The guarantors signed the consent orders based on this advice. The guarantors commenced negligence proceedings against Jackson Lalic Lawyers in the NSW Supreme Court, where Smchmidt J ordered that the question of whether Jackson Lalic Lawyers is immune from suit be decided separately from the other issues in the negligence proceedings.   

Legal question

Does the advocate’s immunity extend to negligent advice which leads to the settlement of a case by agreement between the parties?

Court of Appeal - Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335

The Court of Appeal held that Jackson Lalic Lawyers’ advice was within the scope of the immunity as the advice fell into the category of work done out of court affecting the conduct off the case in court, that the advice was intimately connected with the conduct of the guarantee proceedings.

High Court

The High Court held 5:2 that the immunity does not extend to negligent advice that leads to a disadvantageous settlement, even where the settlement is made into consent orders. Nettle J and Gaudron J dissented in separate judgments.

French CJ, Kiefel, Bell, Gageler and Keane JJ (the majority judgment):

a.       Intimate connection – look to the policy reason behind the immunity

The High Court majority began its analysis by identifying the policy reason behind the immunity. The rationale behind the advocate’s immunity is that the community at large has a vital interest in the final resolution of decisions by judicial determination, and that after a judicial determination has been made, it should not be open to collateral attacks seeking to demonstrate that a judicial determination is wrong ([34]). The immunity exists to protect the public interest in the finality of judicial decisions ([35]). This rationale is why the scope of the immunity is limited to conduct of the advocate which contributes to a judicial determination ([37]). The Law Society of NSW (as an intervener in proceedings) submitted that the immunity should be extended otherwise lawyers will not encourage their clients to settle their claims, as they will not have immunity from protection ([52]). The High Court rejected this argument, as it does not accord with the primary policy reason for the immunity.  Extending the immunity to advice which leads to the settlement of litigation takes the immunity away from its primary rationale, which is to protect the exercise of judicial power from collateral attack. The “intimate connection” between the advocate’s work and the conduct of the case in court must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision.

b.      Historical connection alone is not sufficient

The joint judgment discussed what would constitute an “intimate connection”, distinguishing “merely historical connections” from “functional connections” ([49]). The Law Society of NSW submitted that negligent advice not to settle is intimately connected with an ensuing judicial decision of the court so as to attract the immunity. The High Court rejected this “historical connection”, stating it is not sufficient that one event precedes another event to create an “intimate connection”. The “intimate connection” discussed in Giannarelli and D’Orta is a “functional connection” which is the connection required by the public policy reason for the immunity.

c.       Consent orders

The settlement was embodied in consent orders, and the respondent argued that this involvement of the court was sufficient to constitute an “intimate connection”. The High Court rejected this argument, as the substantive content of the rights and obligations in the consent orders were determined by the parties without any determination by the court. The terms of the settlement agreement “were not, in any way, the result of the exercise of judicial power”. The High Court left the question open as to whether it would be different in situations where “the making of the order itself requires the resolution of issues by the exercise of judicial power” such as where representative proceedings are settled or where proceedings on behalf of a person under legal incapacity are to be compromised.

The dissenters

Gordon J held that the advocates immunity does extend to negligent advice leading to settlement where the agreement is reflected in consent orders. Gordon J focused on a different aspect of the plurality’s judgment in D’Orta, being that the immunity plays a part in a series of rules which are “designed to achieve finality in the quelling of disputes by the exercise of judicial power” ([100]), equating the final quelling of disputes with “work intimately connected with” work in the court, and proceeded to focus on the final quelling of disputes rather than the intimate connection test the plurality focused on. While the majority distinguished Attwells v Jackson Lalic Lawyers from D’Orta, Gordon J argued that both cases involved a final quelling of the outcome, in that both admissions were given legal effect by authority of the court – in one case by entry of conviction, and in the other by entry of verdict and a judgment. Gordon J was careful to analyse the orders made by the court. Orders 1-9 constituted orders of the court recording a verdict and judgment made, whereas paragraphs 10 onwards in the orders merely noted the agreement made between the parties. The verdict and final judgment contained in Orders 1-9 constituted a final quelling of a controversy by exercise of judicial power which attracts the advocate’s immunity from suit.

Nettle J agreed with Gordon J’s reasons for dissenting, focusing on the final quelling of a dispute by judicial power. Even where the parties are agreed on the orders which should be made for the final determination of their rights and liabilities, it remains for the court to be satisfied that it is appropriate to do so to order, which involved judicial power and attracts the advocate’s immunity. 

Jurisdictional facts – what are they and why do we care?

Jurisdictional fact review is taught quickly at law school and soon forgotten altogether as students focus on more common grounds for judicial review. If you find yourself working in administrative law as a graduate, you may need to brush up on your knowledge. Read this blog post then go forth and impress your team with your understanding of a niche but important area of law.

Why do we care about jurisdictional facts?

As a rule of thumb, a factual error is not a ground for review of a decision. An exception to this rule exists for jurisdictional facts. Where an error has been made about a jurisdictional fact, this is a ground for review of a decision at common law. Jurisdictional fact review is unique in that the reviewing court can receive fresh evidence. For other grounds of review, the reviewing court is stuck with findings of facts made by the decision maker, as questions of fact are seen as belonging to the merits, and the task of a court is to inquire into the legality of the decision (this is known as the merits/legality distinction). In jurisdictional fact review, the evidence before and reasoning of the administrator in fact finding can be reviewed by the court and the existence of facts can be determined afresh. Jurisdictional fact review is an important ground of review to remember because of this opportunity it gives the review court to go beyond the merits/legality distinction.

How to identify a jurisdictional fact

Broadly speaking, a jurisdictional fact is a factual circumstance that must exist prior to a decision being made. A jurisdictional fact might be a certain event or requirement that must occur before a decision is made.  In Timbarra (see key cases below for summary) Spigelman CJ stated there are two factors to consider when determining whether a fact is a jurisdictional fact:

1.       Objectivity: Did parliament intend that the fact must actually exist or be objectively determined as opposed to the decision maker just been satisfied in something? If the act refers in objective terms to the belief, satisfaction would indicate subjectivity rather than objectivity. Note that when Spigelman CJ refers to parliament’s intention he is referring to the intention as evident from the words parliament chose to use in the text of the legislation. While the Explanatory Memorandum and other aids can be taken into account, normal principles of statutory interpretation apply and the starting point is always with the text of the statute.

2.       Essentiality: Did parliament intend that the absence or presence of the fact will invalidate the action. One important factor which is often determinative is whether the fact is preliminary to the exercise of power or arise in the course of exercising the power, if the fact is preliminary to the exercise of the power is not likely to be essential.

A jurisdictional fact will form the basis for judicial review of the decision if it does not exist or has been made in error.

Hypothetical examples:

1.       If legislation states a tribunal can only exercise its powers when sitting on a Wednesday, the fact that it is a Wednesday may be a jurisdictional fact;

2.       If legislation states a person must be convicted of a crime before a decision to revoke a visa can be exercised, the fact a person has been convicted of a crime may be a jurisdictional fact.

Do not confuse a jurisdictional fact with:

1.       A jurisdictional requirement

A jurisdictional requirement is a precondition that must be met before a valid decision can be made. Where a jurisdictional requirement is not met it may cause a jurisdictional error which is a ground for review. If you want to revise jurisdictional requirements the High Court’s discussion of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163 (Craig) is a must read.

2.       A jurisdictional opinion

Do not confuse a jurisdictional fact with a jurisdictional opinion (see Spigelman CJ’s objectivity/subjectivity distinction above). As Aronson, Dyer and Groves put it in Judicial Review of Administrative Action (4^th ed) a jurisdictional fact “is purely factual”. Note though there are differing opinions on how “purely factual” an opinion must be (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 per Gummow J). If you do not understand the difference between a jurisdictional fact and a jurisdictional opinion, you may want to go right back to basics to review the difference between a fact and an opinion and then go from there. Where you have a jurisdictional opinion, not a jurisdictional fact, the normal principles of reviewing a subjective power will apply and the court cannot accept evidence and decide whether the relevant subjective criterion was met.

Key cases

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (Enfield)

Facts:

The case of Enfield concerned the expansion of waste treatment plant. The developers had applied to the Development Assessment Commission (DAC) for approval of their expansion plan, which the Local Council strongly opposed. Where a development proposal could be classified as “special industry”, the development application required the consent of both local Minister and Council. The Local Council argued that the extension of the waste treatment plant was “special industry” as it would create smells and allow smells to escape to nearby land. The DAC considered the evidence about smells, formed the view the development was not a “special industry” and approved the application.

Legal issue:

Whether the “special industry” requirement was a jurisdictional fact or an opinion.

High Court:

Found that the characterisation of a proposed development as a “special industry” is a jurisdictional fact, as the legislative regime did not frame the requirement in terms of an opinion and the question of whether a development was a “special industry” played a pivotal role in the development approval scheme, as it was a trigger for public participation and other requirements. The “special industry” requirement was framed objectively as something to be objectively determined.

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 5 (Timbarra)

Facts: Ross Mining submitted an application to extend one of its goldmines. The legislation required a Species Impact Assessment (SIA) to be submitted with the application where the development was “likely to significantly affect threatened species”. Ross Mining did not submit a SIA, as it argued the development was not likely to significantly affect threatened species. Timbarra Protection Coalition, a lobby group, argued the mining development was likely to significantly affect a number of threatened species including frogs, bats and owls, therefore no “application” had been made and the council could not approve the application as a jurisdictional fact did not exist.

Legal issue: Whether the requirement to submit an SIA where the development was “likely to significantly affect endangered species” was a jurisdictional fact and whether fresh evidence as to the fact could be considered by the reviewing court.

First instance – NSW Land and Environment Court, Justice Tolbert:

Held there was no jurisdictional fact and no fresh evidence could be heard.

NSW Court of Appeal:

Found there was a jurisdictional fact and fresh evidence could be heard by the reviewing court. The legislation was expressed such that the SIA had a pivotal role in the statutory scheme as it ensured detailed information was available to decision makers. The submission of an SIA was necessary before consent was granted or not. Weighing against these factors was that reasonable minds could differ about whether a development would “significantly affect” endangered species. However, the Court of Appeal found the requirement was sufficiently objective and was therefore a jurisdictional fact. The matter was remitted back to the Land and Environment Court to hear fresh evidence about the significant affect of the development on endangered species.

Good luck identifying jurisdictional facts. Don’t be disheartened if you do not understand jurisdictional fact review or if you get confused between different grounds of review. I certainly did not understand the concept five years ago when I first encountered administrative law as a law student. Keep at it.