Tempora mutantur, nos et mutamur in illis? – ‘Times change and people must change with the times.’
This maxim is generally true, however does it strictly apply when legal doctrine is considered? Does the maxim mean that the common law defence of advocates’ immunity, which dates to 1791,1 should be abolished in Australia?
This is a question many are asking as increasing numbers of common law jurisdictions abolish the defence.2 How would such an abolition affect justice in Australia? Would the abolition ignore the unique role advocates play in the Australian judicial system?
Is it truly in the interest of justice that such a restriction be placed on a potential claimant?
Although starting in obscurity, advocates’ immunity has evolved into a fundamental pillar of Australian common law. Through an examination of the doctrine, recent developments in other jurisdictions and at home, the author will argue that the doctrine is fundamental to the administration of justice and must remain a part of the Australian common law.
A very brief history
While its origins are obscure,3 advocates immunity generally operates as an immunity from liability to the tort of negligence for work carried out in and out of court.4 In this paper, the immunity in its civil application will be considered.
The inception of the immunity arose due to the historical absence of a contract between the advocate and their client. In a tradition said to date to Roman times, an advocate did not have a contract with the client as the integrity and dignity of advocates would mean that payment of fees would be a matter of honour and not contractually required.5
The House of Lords ultimately abolished the immunity in 2002 in the judgment of Arthur JS Hall & Co v Simons.6 The abolition was based on public policy grounds, as the House of Lords determined it was neither in the best interest of the public, nor in the administration of justice, for a special immunity to be applied to a special class of persons, namely advocates.
In keeping with the decision of Arthur JS Hall, the New Zealand Supreme Court abolished the immunity in 2007.7 Again, the decision of the New Zealand Supreme Court was grounded in public policy considerations.
The immunity was first considered by the High Court of Australia in Giannarelli v Wraith,8 with the High Court formally adopting the immunity into Australian common law. Since its 1988 decision, the High Court has repeatedly examined the immunity, applying restrictions on the scope and operation of the law. The test, as it currently stands, requires three aspects to be established:
- The alleged negligent work must have an effect on the conduct of the case in court.
- There must be a ‘functional’ nexus between the alleged negligent work and the judge’s decision.
- A controversy must have been dealt with by the court as opposed to arguments by the parties.
Times change and the immunity must change with the times?
Advocates’ immunity is now consigned as a relic of history in the United Kingdom and New Zealand. However, in Australia, the immunity remains an important and indeed fundamental cornerstone of Australian common law.
One of the cogent arguments that exists for the maintenance of the immunity is that of the finality principle (otherwise known as res judicata).
As a principal of public policy, res judicata operates so that a party shall not face further proceedings for the same cause of action. This is, of course, subject only to the supervisory jurisdiction of the appellate courts.
In the event the immunity is abolished, it may open the floodgates to litigants agitating previously dealt with matters on the grounds of alleged negligence against their advocate. Thus, a litigant may find themselves in a never-ending circle of perpetual litigation.
Instead of there being finality after the period for appeal has expired, a litigant in Queensland, for example, may re-open a decided case within six years by alleging their barrister or solicitor was negligent in the conduct of the case in court.
The uncertainty this perpetual cycle of litigation would create for parties is undesirable, allowing a situation in which a matter is re-litigated in the form of a claim of negligence against the advocate. This in turn would mean that decisions of a previous court may be revisited by the court of first instance, in effect, becoming a quasi-court of appeal.
This uncertainly faced by litigants also applies to judges who hand down decisions. In the scenario envisaged above, a judge may have their decision critiqued and potentially overruled by another judge of the same court, thus undermining the appellate system. In the words of Mason CJ, such a situation “…would be destructive of public confidence in the administration of justice”.9
The future of the immunity
Although it is assigned to history in other jurisdictions, it is the author’s opinion that the immunity must remain part of Australia’s common law to ensure integrity of the administration of justice. To remove the immunity would ignore the unique position of the advocate when they appear before the court, as well as the valuable contribution all advocates make on a daily basis to the administration of justice. Lord Eldon said it best in Ex parte Lloyd10 when he stated:
“[Counsel] lead his exertions to all, himself to none. The result of the cause is to him a matter of indifference. It is for the court to decide. It is for him to argue. He is…merely an officer assisting the administration of justice.”11
Some nearly 190 years later, the sentiments expressed by his Lordship have never been more accurate. The immunity not only affects those who have been called to the Bar but those solicitors who regularly appear in court.
Indeed, in these changing times, the immunity is more where more solicitors are acting as advocates from their offices, studies, or even bedrooms. It is essential that this vital work is protected by the immunity not merely to protect practitioners but to ensure the finality of proceedings.
It is for the advocate to argue, the court to decide, and for the advocate to always remain an officer assisting the administration of justice. The abolition of advocates’ immunity will erode this fundamental principle and open the floodgates to uncertainty for parties appearing before the court.
This article appears courtesy of the Queensland Law Society Early Career Lawyers Committee Proctor working group. Sam Harvey is a lawyer at Lander & Rogers Lawyers. All information is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted. Any errors contained in this publication are the errors of the author.
1 Chorley v Bolcot, 4 Term 317.
2 See generally Michael Kirby, ‘Of advocates’, drunks and other players: Plain tales from Australia’ (2011) 23(1) Denning Law Journal 47.
3 Rondel v Worsley  1 AC 191, 258 per Lord Pearce (Rondel).
4 See generally Chief Justice Catherine Holmes, Queensland Law Society Modern Advocate Lecture Series – Advocates’ Immunity (speech delivered at the Modern Advocate Lecture Series, Law Society House, 25 October 2016), 1-2.
5 Ben Hartley, ‘Advocacy, policy and potato chips: The future of the advocates’ immunity in Australia’ (2003) 14 Insurance Law Journal 151, 152 citing Rondel (1969) 1 AC 191, 239 per Lord Morris.
6 Arthur JS Hall & Co v Simons  1 AC 165.
7 Lai v Chamberlains  2 NZLR 7.
8 Giannarelli v Wraith (1988) 165 CLR 543.
9 Ibid, 558.
10 Ex parte Lloyd (1822) Mont 70.
11 Reported as a note in Ex parte Elsee (1830) Mont 69, 70.