(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
Citations:
[2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755
Links:
Jurisdiction:
Australia
Cited by:
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Professional Negligence
Updated: 08 September 2022; Ref: scu.431603
