Judges think the advocates immunity is past its use-by date … High Court formulation out of step with reality and international trends
FELICITY Hampel of the County Court and vice president of VCAT is the latest judge to vent concerns about the advocates’ immunity.
She questioned the High Court’s rational for the continued existence pf the immunity because, in the case before her, it prevented the parties getting a resolution of the factual dispute.
“MSP”, one of the parties in a family law property dispute, claims he was poorly advised by solicitor Shane Maguire of Ivanhoe law shop, Adams Maguire Sier, and barrister Margaret Mandalert.
At a family law conciliation conference the matter was resolved and MSP signed consent orders.
He subsequently claimed that the consent was induced by the negligence of his lawyers and that the orders were unfavourable to him and outside the jurisdiction of the Family Court.
He made an application to VCAT for compensation from the lawyers, who asked the tribunal to dismiss his case, arguing that the advocates’ immunity provides a bar to the client’s claim.
Hampel found that the consent orders involved the exercise of judicial power and in view of the High Court’s decision in Attwells v Jackson Lalic Lawyers the lawyers had a complete defence.
MSP’s position was that he was not in a de facto relationship with Ms P, consequently the Family Court had no jurisdiction. He also contended that he instructed Maguire to contest the proceedings on that basis and that Mandalert incorrectly advised him the court could deal with the dispute because the additional costs and delay involved in litigation before another court or tribunal would cause hardship.
The client later discovered that the relevant provision of the Family Law Act applied only to hardship to an applicant, which in this case was Ms P.
Finally, he says that the settlement did not properly reflect the value of his contributions.
Judge Hampel found that the making of the consent orders required the “resolution of issues by the exercise of judicial power” and so the exception to the immunity identified in Attwells did not apply.
“The court cannot make an order, even if the parties have consented to it, unless affirmatively satisfied that in all the circumstances it is just and equitable to make the order.”
Mandalert deposed that:
“Once an in principle settlement had been agreed, the registrar spent considerable time with the applicant to ensure he understood the terms of the settlement.”
The later High Court decision in Kendirjian v Lepore did not change the principles decided in Attwells.
At the end of her reasons Hampel said that she could not determine whether MSP’s sense of grievance about his lawyers is justified.
“There are clearly contested factual issues which, not being relevant for the purposes of this application, were not explored before me.”
Consequently, HH said, MSP was denied the opportunity to seek to make good his claim and the lawyers were denied the opportunity to seek to satisfy a court the claim of negligence is not made out. There can be no judicial determination of the issue of negligence.
Hampel went on:
“Whether there is a role for advocates’ immunity still to exist in Australia today is in my view an important question. It no longer applies in the United Kingdom and New Zealand, and the rationale relied on by the High Court for its existence has not been sufficient to persuade those jurisdictions to maintain it.
It does not appear to me that public confidence in the exercise of judicial power has been undermined in those jurisdictions since the immunity was removed. Nor is there any evidence of a proliferation of baseless claims of negligence on the part of legal practitioners brought by disgruntled litigants, clogging up the courts, undermining the authority of the courts to bring finality to the resolution of disputes between parties, or undermining public confidence in a fair and impartial judicial system.
However, these are matters for the High Court or parliament to consider.”
In 2012, it was another Victorian judge, Kevin Bell of the Yarraside Supremes, who said he was “deeply troubled” by the immunity as formulated by the High Court.
Goddard Elliott v Fritsch also concerned property settlement proceedings in the Family Court. According to Bell’s judgment Paul Fritsch was a 64-year old pensioner and Vietnam war veteran with a mental illness. His marriage broke down in 2002.
In a property settlement his solicitor was Andrew Goddard of Goddard Elliott and his barristers were Noel Ackman QC and Clive Rosen. His accountant Kevin Ferguson.
The proceedings were settled on terms generous to his wife and he sued his legal and accounting advisers for damages and other claims, although he settled with the other parties leaving Goddard Elliott – a Glen Waverley law shop – still standing.
Fritsch established that the shop was negligent in preparation of his case and in taking instructions from him when he did not have the requisite mental capacity – which Goddard should have known.
Justice Bell assessed Goddard Elliott to be 75 percent responsible and the two barristers 25 percent responsible for Fritsch’s loss and damage. In dollar terms Goddard Elliott’s proportionate responsibility was put at $675,000.
However, enter stage right the advocates’ immunity. Bell concluded his reasons of 1,146 paragraphs expressing frustration at being bound by the thinking of the High Court:
“After examining decisions of the High Court of Australia which bind me, I have decided that advocates’ immunity supplies a complete defence to Mr Fritsch’s claim for damages against Goddard Elliott. Its capacity negligence (as does its preparation negligence) falls within the immunity because it occurred in the course of work leading to decisions about, or intimately connected with, the conduct of a case in court, which is a very wide test. By reason of the immunity, Goddard Elliott is not liable to pay damages for the loss which its negligence caused Mr Fritsch, a conclusion to which I am driven by the binding authorities and find deeply troubling.”