It has been the law in Australia that the Advocate's immunity extends to work done out of court which leads to a decision affecting the conduct of the case in court. This immunity extends to protect a solicitor involved in the conduct of litigation in court. The application of the scope of the duty is often difficult and unsatisfactory, leading to calls for its abolition.
In a 5-2 decision, the High Court of Australia (FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ) decided today in Attwells v Jackson Lalic Lawyers [2016] HCA 16 that the Advocate's "immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court. In particular, the immunity does not extend to advice that leads to a settlement agreed between the parties."
The majority considered that in the case before it, there was no determination by a court as "the consent order and associated notation by the Court reflected an agreement of the parties for the payment of money in circumstances where no exercise of judicial power determined the terms of the agreement or gave it effect as resolving the dispute. The consent order may have facilitated the enforcement of the compromise, but it was the agreement of the parties that settled its terms."
This means that if a client is advised by its lawyer to settle a case and enters into terms of settlement evidencing their agreement without any "judicial determination" by the court then the advocate's immunity does not apply if the lawyer is negligent in providing that advice. In other words, the lawyer is not immune from a legal suit for providing the wrong advice even if consent orders were made by the Court.
NETTLE J (who along with GORDON J dissented) accepted that "when a matter is settled wholly out of court, the settlement does not move the litigation towards a determination by the court. Consequently, advice to enter into such a settlement does not attract the immunity." His Honour, however, differs from the majority as to when "judicial determination" occurs as he considers the immunity applies "where a matter is settled out of court on terms providing for the court to make an order by consent that determines the rights and liabilities of the parties, the settlement plainly does move the litigation toward a determination by the court."
GORDON J, in dismissing the appeal, considered that there was a final quelling of the controversy between the parties by the consent order, i.e. by the exercise of judicial power. Her Honour considered that work that contributes to the final quelling of a controversy by the exercise of judicial power is "work intimately connected with" work in a court.
The High Court (with whom the dissenting justices NETTLE and GORDON JJ agreed), however, did not abolish the application of the Advocate's immunity. The justices did not see any need to reconsider its earlier decisions on this issue in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543. The majority said that "an alteration of the law of this kind is best left to the legislature."
For now, Advocates continue to be immune from suit when they undertake work as an officer of the Court in the quelling of disputes which contributes to the exercise of judicial power and determination by the Court.