Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.
In a negligence claim against a legal practitioner, advocate's immunity was held to apply in circumstances where there had been a failure by the practitioner (who acted as defence counsel at trial) to obtain weather evidence before a criminal trial. In awarding summary judgment to the practitioner, it was held by Howard J that the distinction sought to be drawn by the plaintiff to exclude the practitioner’s ‘non-work’ from the scope of the immunity principle was misconceived.
In issue
The key issue in the case was whether the doctrine of advocate’s immunity operated as a complete defence to a negligence claim against a legal practitioner, in circumstances where there had been a failure to undertake certain work prior to trial.
The background
The plaintiff commenced proceedings against the defendant, a legal practitioner who had represented him for part of a criminal trial involving an alleged offence of sexual penetration of a minor. After a trial by jury in March 2015, the plaintiff was found guilty and convicted. He successfully appealed against that conviction and was acquitted on a re-trial in October 2017, after serving 15 months imprisonment.
The plaintiff’s complaints against the defendant in the proceedings mirrored the grounds of his successful appeal against his earlier conviction. Relevantly, he asserted that the defendant had failed to obtain Bureau of Meteorology records to establish the temperature on the night of the alleged offence, which was a relevant matter for cross-examination of the complainant. The Court of Appeal held (and Howard J accepted for the purposes of determining a summary judgment application brought by the defendant) that:
- The plaintiff had instructed the defendant well prior to trial about the existence of meteorological records which were inconsistent with an important aspect of the prosecution evidence;
- The plaintiff’s instructions were given in a context which made it clear that he wanted the issue pursued and in which there was no forensic disadvantage to doing so;
- It was incumbent on the defendant to take steps, or ensure that steps were taken, to obtain evidence of those records in admissible form;
- There was error of judgment by the defendant in not challenging the complainant’s evidence in cross examination about the temperature on the night of the alleged offence, which was incapable of being justified as a reasonable forensic judgment; and
- The defendant’s (and trial judge’s) error as to the relevance of the meteorological records had the practical effect of depriving the plaintiff of the opportunity to run an important aspect of his defence and comprised a miscarriage of justice.
The defendant relied on advocate’s immunity as a complete defence to the plaintiff’s claims in the proceedings and (on that basis) made an early application for summary judgment.
The decision at trial
Howard J considered that it was appropriate for him to consider and determine the application of advocate’s immunity on a summary basis. He accepted (for the purposes of the application) that the defendant did breach her duty of care to the plaintiff and that the negligence in question caused the plaintiff to be convicted and imprisoned.
The plaintiff sought to distinguish his case against the defendant from other cases where advocate’s immunity applies, on the basis that it was not about ‘in-court’ work but was about an out of court pre-trial event where the defendant did not perform her duty. He argued that it was an ‘exceptional case’ that did not fall within advocate’s immunity, as was contemplated by the High Court in the leading case of D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
Howard J rejected the distinction sought to be drawn by the plaintiff (which would exclude the defendant’s ‘non-work’) as an accurate statement of the immunity principle. He considered that the plaintiff’s case turned on the defendant’s failure to obtain prior to (and have available at) trial the weather evidence, and to use the weather evidence at trial to challenge the prosecution case against the plaintiff. That is, the plaintiff’s case was that the work not done by the defendant out of court affected the conduct of the case in court, or was intimately connected with the work in court. Accordingly, Howard J determined that the plaintiff’s claim was ‘squarely within’ the advocate’s immunity.
Implications for you
The case illustrates that the courts will continue to uphold the enshrined principles of advocate’s immunity (including on a summary basis), so long as the thing alleged to have been done (or not done) has the necessary connection with the conduct of the matter in court. This warrants early consideration in dealing with claims against legal practitioners, including obtaining advice as to the prospects for making early dismissal applications on the basis of advocate’s immunity.
