Negotiations and settlements – Obligations, risks and practicalities for Barristers: Australian Bar Review (2002) 22 Aust Bar Rev No 1

Advocates Immunity

Advocate (barrister or solicitor) immune from suit for negligence: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; Gianarelli v Wraith (1988) 165 CLR 543; Gattellaro v Spencer [2010] NSWSC 1122; Symonds v Vass (2009) 257 ALR 689; Mallik v McGeown [2007] NSWSC 1414; Yates Property Corporation (in liq) v Boland (1998) 157 ALR 30; NRMA Limited v Morgan [1999] NSWSC 407

Barristers — Immunities — Advice — Application for proceedings to be struck out by barrister — Claim for damages against lawyers and barristers as result of alleged negligence: Wilson v Carter [2005] NSWSC 1351

Whether advice of counsel prepared negligently: Smith v McCusker [2000] WASCA 320

Trial — Conduct of counsel at trial — Competence of counsel: Ali v R [2005] HCA 8

Solicitors — Advocate’s immunity — Out of court work: Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85

Whether barrister liable for his conduct of compensation claim for compulsory acquisition: Yates Property Corporation Pty Ltd v Boland & Ors [1999] ANZ Conv R 193

Professional negligence – solicitors’ duties – plaintiffs sued solicitor and barrister for professional negligence – solicitor and barrister sought to have proceedings struck out pursuant to r13.4 Uniform Civil Procedure Rules 2005 (NSW) on basis they were statute barred pursuant to s14 Limitation Act 1969 (NSW) and on basis of advocate’s immunity – held: claim against barrister statute-barred and struck out – if Court wrong that claim against barrister was statute-barred, Court would nevertheless strike out claim on basis it was precluded by advocate’s immunity – claim against solicitor not clearly statute-barred – bases of claim against solicitor either work done in court or work out of court that led to decision that affected conduct of case in court – claim precluded against solicitor by immunity – claim against solicitor struck out: White v Forster [2014] NSWSC 1767

Negligence – solicitors’ duties – advocates’ immunity – separate question – respondents claimed law firm gave negligent advice when representing them in guarantee proceedings: Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335

Advocates’ immunity – witness immunity – separate question – appellant sued former solicitors, barrister, engineer expert witness and engineering firm in negligence: Young v Hones [2014] NSWCA 337

Joinder – concurrent wrongdoers – pleadings – limitations – solicitors retained by builder in two building disputes sought to recover outstanding balance of invoices -builder sought leave to join counsel briefed by solicitors as defendant to counterclaim – builder also sought to amend defence and counterclaim – held: inappropriate to determine issue of advocate’s immunity at this point in proceedings – proposed proceedings by builder against counsel not so untenable that builder should be deprived of opportunity to proceed – question whether claim against counsel statute-barred would not arise until counsel raised limitation issue in defence to counterclaim – Court satisfied proposed new causes of action in negligence and contract arose out of same facts or substantially the same facts as builder’s cause of action in breach of fiduciary duty – allegation that facts relevant to causes of action were deliberately concealed was prima facie sufficient to satisfy requirements of r503 Court Procedure Rules 2006 (ACT) – applications granted: Walters v Kemp (No 2) [2014] ACTSC 251

Advocate’s immunity – summary dismissal – client sued former counsel and solicitor for money paid for professional services during criminal proceedings – solicitor and barrister sought to strike out statement of claim or that proceedings be dismissed – held: no reasonable cause of action disclosed – conduct about which complaint made consisted solely of actions, and arguably omissions, during period in which plaintiff retained solicitor and barrister as his legal representatives to conduct his criminal trial – acts or omissions relating to conduct during directions hearings and substantive trial were so intimately connected to conduct of case in court that there was an immunity from suit in relation to them – solicitor and barrister were protected from claim for damages whether in tort or contract arising from conduct in representing client during criminal proceedings – in addition, proceedings not maintainable by operation of s14 Limitation Act 1969 (NSW) – proceedings dismissed: Gillies v Brewer [2014] NSWSC 1198

Solicitors’ duties – immunity from suit – client sued former solicitor and barrister for damages for negligence and breach of retainer – defendants claimed they were immune from suit and sought summary termination of proceedings – extension of advocate’s immunity to work done out of court leading to decision affecting conduct of case in court – held: client’s allegations extended back to failure to advise a considerable time before mediation and entry of agreed orders – such failure may arguably be too far removed from conduct of proceedings in court to be covered by immunity – whether defendants had benefit of advocate’s immunity in relation to client’s claim was not so clear as to justify summarily terminating proceedings on pleadings and denying client opportunity to present case in the ordinary way at trial – applications for summary termination of proceedings dismissed: Quill v Smith & Willmott [2014] TASSC 45

Summary dismissal – negligence – solicitors’ duties – advocates’ immunity – client sued solicitors on basis that negligent advice given at mediation caused him to settle proceedings against him and his company to their detriment – solicitors sought that proceedings be dismissed pursuant to r13.4 Uniform Civil Procedure Rules 2005 (NSW) on basis they were protected by advocates’ immunity – held: as matter of principle advice, acts and omissions of solicitors at mediation fell within immunity – conduct complained of was work leading to the conduct of case in court – advice on settlement fell within immunity – applying test in General Steel Industries v Commissioner for Railways, solicitors had demonstrated client did not have a reasonable cause of action against them – proceedings dismissed: Stallman v Rushbourne [2014] NSWSC 730


Barrister’s liability for payment of costs ordered against client: What must be shown is unreasonable conduct and “… unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.”: Macteldir Pty Limited v Dimovski [2005] FCA 1528 at [4]

Incompetence of counsel – whether ground for contending miscarriage of justice: R v Birks (1990) 19 NSWLR 677

Duty in event as to doubt as to availability R v Sutton [1992] 2 AER 129 & 137

Practice of charging a “cancellation fee”: Commissioner of Australian Federal Police  v Razzi (1991) 101 ALR 425

Duty in relation to advising as to whether a minors claim should be settled or compromised: Sosa v Carter [1978] WAR 123; Re Barbour’s Settlement [1974] 1 AER 1191Whether Court has inherent jurisdiction to prevent appearance of counsel so as to protect integrity of judicial process: Grimwade v Meagher [1995] 1 VR 446

Standard of care — Legal practitioners — Corporations law experts — Barrister and solicitors providing advice on demutualisation of client — Solicitors called upon to advise whether proposal could and should be implemented by scheme or meeting: NRMA Ltd v Morgan[1999] NSWSC 407

Barristers — Representation — Competency — Appeal against conviction — Alleged breakdown of communication between barrister and client Johnson v R [1999] WASC 75

Senior counsel agreeing to act on contingency basis – whether costs agreement against public policy: Schokker v Commissioner of Taxation (No 2) (2000) 106 FCR 134

Hearings — Vacation of hearing dates — Availability of counsel — Notice of motion seeking vacation of appeal hearing dates — Counsel not available: Campbell v Metway Leasing Ltd [2002] FCA 213

Standard of care — Barristers — Negligent advice — Appeal from decision of trial judge — Decision dismissing cross-claim by solicitors against barrister: Maurice May & Co v Dupree [2002] NSWCA 249

Barristers — Fees — Enforceability of costs agreement — Application for further legal practitioner fees — Applicant barrister allegedly entered into written costs agreement with respondent client pursuant to (WA) Legal Practitioners Act 1893 (Act) s 59: Stephenson v Conway-Cook [2008] WASC 137

Duty to record contentions and objections: Goktas v Government IO [1993] 1 NSWLR 684

Litigant’s duty not to mislead court – duty of counsel to advise client: Vernon v Bosley (No 2) [1997] 3 WLR 683

Legal disciplinary authorities — Professional misconduct — Fitness at date of trial – Barristers — Fit and proper person: Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145