Advocates immunity & mediation

While awaiting consideration by the High Court of the scope of advocates immunity, the NSW Court of Appeal was called upon to consider advocates immunity in the context of mediation.

Stillman v Rushbourne [2015] NSWCA 410 saw the applicant being advised to settle a claim following a court ordered mediation. Judgment was entered in accordance with the agreed settlement.

The applicant commenced proceedings against the respondents, alleging that they had been negligent in their advice and representation in the course of the mediation.   Those proceedings were dismissed on the basis that they disclosed no reasonable cause of action as the “conduct complained of was work leading to the conduct of the case in court” and was therefore subject to “advocates’ immunity”: Stillman v Rusbourne [2014] NSWSC 730.

On appeal the Court by majority held that the work done by the respondents fell within orthodox understandings of the advocate’s immunity being work that led to a settlement and thus affected the conduct of the case in court: Gleeson JA at [11]; Simpson JA at [19]. While mediation does not, of itself, involve the exercise of judicial power, it is a step in the process towards the exercise of judicial power, which is exercised when judgment is entered.

Basten JA dissented, taking the view that as consent orders were entered prior to commencement of a trial, reflecting a settlement reached by the parties out of court; the judicial determination of the controversy on its merits did not take place. There was no justification for extending advocates’ immunity to the conduct of the respondents in the course of the mediation which lead to the settlement: [8]; [17]; [30]; [47].

The ongoing doubt as to the scope of advocates immunity may be resolved in Attwells v Jackson Lalic, which is listed for hearing on 8 March 2016.

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