Claim Against Solicitors Summarily Dismissed by Reason of Advocate's Immunity

by K&L Gates LLP

Advocate's immunity is a valuable defence for solicitors and barristers preventing the re-litigation of disputes by disgruntled litigants. The recent decision of Stillman v Rushbourne [2014] NSWSC, in which we acted for the solicitor defendant, provides assistance in understanding when a solicitor's conduct will be immune from suit and when an application for the disposal of proceedings on the basis of immunity can, and should, be made.


Justice Davies summarily dismissed a claim in negligence against defendant solicitors on the grounds that their conduct was immune from suit, under the doctrine of advocate's immunity.

The court considered and found that:

  • advising in relation to settlement and conduct at mediation in the initial proceedings was work done leading to the conduct of the case in court and came within the immunity 
  • coercion of a client, or other proscribed behaviour, does not take the matter outside the scope of the immunity 
  • it was appropriate to deal with the application of the immunity in the negligence proceedings in advance of the trial and on a summary disposal basis.

Factual Background

The plaintiff and his company instructed the defendants, a firm of solicitors (Solicitors), to act on their behalf in the defence of proceedings that commenced against them for rental charges for mining equipment (Initial Proceedings). The Initial Proceedings were settled at mediation. The plaintiff and his company defaulted on the settlement terms and judgment was entered against them. The plaintiff commenced further proceedings against his solicitors (Negligence Proceedings), alleging that in the Initial Proceedings the Solicitors failed to adequately advise in relation to the settlement and coerced him to enter into a settlement agreement that was excessively disadvantageous, having regard to the defences available.

Application of Immunity to Settlement Conduct

The Solicitors brought an application for the Negligence Proceedings to be dismissed on the basis that their allegedly negligent conduct falls within advocate's immunity – and the plaintiff did not have a reasonable cause of action against them. The application was successful and the Negligence Proceedings were dismissed with costs.

Immunity Applies to Advice to Settle and Conduct of Mediation

Justice Davies considered whether the doctrine of advocate's immunity was applicable to the Solicitors' advice to settle and the conduct of the defendant solicitors at the mediation in the Initial Proceedings.

Justice Davies set out that Donnellan v Woodland [2012] NSWCA 433 makes it clear that:

  • advice leading to settlement is work which leads to the conduct of the case in court – because the party agrees to the disposition of the proceedings on the basis of the settlement and the result is a final judgment 
  • the fact that the advice was given prior to the hearing, at mediation, is irrelevant if the result is the disposal of the proceedings.

The conduct complained of in relation to the settlement was work leading to the conduct of the case in court and fell within the immunity.

No Exception to Immunity for Intentional or Coercive Behaviour

The plaintiff alleged that the Solicitors coerced him to accept the disadvantageous settlement terms offered. Justice Davies rejected the plaintiff's argument that proscribed behaviour, such as coercion of a client, falls outside the immunity. The application is determined by the substance of the wrong done and not by how it is characterised.

Determination on Strike out Application

Justice Davies also considered whether it was appropriate to determine the application of advocate's immunity in the Negligence Proceedings prior to trial on a summary basis. The plaintiff asserted that it was necessary for the court to know and understand the whole factual matrix before making a determination, and that would not be clear until the final hearing. Justice Davies rejected this reasoning in this case. The present case concerned clear and confined allegations, all of which concerned conduct coming within the immunity. The plaintiff was not able to point to any other facts or issues about which evidence might be adduced at trial which would take the matter outside the immunity.

His Honour took the plaintiff's allegations at their highest and found the: 

  • conduct complained of fell within the immunity 
  • plaintiff does not have a reasonable cause of action against the defendants.

The Negligence Proceedings against the Solicitors were dismissed and the plaintiff was ordered to pay the costs of the proceedings.


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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