Advocate’s Immunity Again


[author: John Dillon]

We recently reported on the New South Wales Supreme Court’s decision in Attwells v Jackson Lalic [2013] NSWSC 1510 in which the Court declined to strike out  a claim against a solicitor on the grounds of immunity from suit.

The Supreme Court of Tasmania has recently held in PSAL Ltd v Galilee & Ors [2013] TASSC 74, that a barrister’s claim of immunity from suit was also not an appropriate case for summary termination.  In this instance, the plaintiff brought proceedings against their former barrister, retained to advise in proceedings relating to a purchase of land.  The barrister advised that the proceedings were without merit, yet was instructed to continue.  As predicted by the barrister, the plaintiff lost. The barrister then advised the plaintiff that an appeal to the Full Federal Court would have reasonable prospects of success. An appeal was brought and was unsuccessful.

The plaintiff alleged the advice provided by the barrister in appealing the first instance decision was negligent and resulted in loss, including wasted legal costs. The barrister applied to strike out the statement of claim as it failed to disclose a reasonable cause of action, due counsel’s immunity from suit for conduct in the court room and for work done out of court which leads to a decision affecting the conduct of the case in court.

The Court rejected the barrister’s application, holding a claim should only be struck out where it is clear, regardless of the evidence which might be presented at trial, that the immunity applies.  This case once again acts as a reminder of the potential additional costs which a strike out application can cause.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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