Remaining the same, staying different – Attwells v Jackson Lalic Lawyers

Abstract

Advocates’ immunity protects both barristers and solicitors from civil suit where their impugned actions are performed in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’. In May this year, the Australian High Court handed down their decision in Attwells v Jackson Laic Lawyers Pty Ltd in which they retained the advocates’ immunity doctrine in Australian law. The decision described here, therefore, changed little in Australian law. It also continued this jurisdiction’s outlier status as the only country to make advocates completely immune from civil liability. Many had predicted a different result. For some time, there has been a growing body of academic critique, and some case law, suggesting that a change is needed. When Australian courts in Giannarelli v Wraith accepted the English doctrine from Rondel v Worsley in 1988, there was some critical commentary. Nearly 20 years later, in the D’Orta decision, the High Court affirmed the immunity, but narrowed the ‘central justification’ for its retention to protecting ‘finality of judgments’ from collateral attack; ‘the principle that controversies once resolved are not to be reopened except in a few narrowly defined circumstances’. This is of particular importance, the Court said, because judicial decisionmaking is to be conceived ‘as an aspect of government of society’.