Advocates immunity revisited

Following its earlier decision in Attwells v Jackson Lalic [2016] HCA 13, the High Court of Australia today published its reasons for judgment in Kendirjian v. Lepore & Anor [2017] HCA 13.

The matter arose in circumstances where a settlement offer was made and rejected on the first day of a trial. It was alleged that the advice in relation to rejection of that offer was negligent. The trial proceeded to the point of a judicial determination and so the Court was required to consider whether it could be said that the advice affected the conduct of the case in court by bearing upon court’s determination of the case.

Edelman J (with Kiefel CJ, Bell, Gageler, Keane JJ concurring) allowed the appeal, as required by the reasoning of the majority in Attwellls. At [34] he explained:

With respect, the negligence action by Mr Kendirjian against the respondents does not give rise to the possibility of any challenge to the findings of the District Court concerning Mr Kendirjian’s credibility or otherwise. From Mr Kendirjian’s perspective, he relies on the decision of the District Court in order to prove his alleged loss. From the perspective of the second respondent, issues concerning the reasonableness of advice given will be assessed at the time the advice was given, not at the time of the District Court judgment. The assessment of reasonableness will not involve any consideration of whether the decision of the District Court, affirmed by the Court of Appeal, was right or wrong whether in relation to credibility or otherwise. It was not suggested that any questions of reasonable foreseeability of loss could conceivably lead to a challenge to the reasoning or decision in the District Court. Indeed, nothing in the second respondent’s pleaded defence raises any suggestion of a challenge to the reasoning or decision in the District Court.

Nettle J (with Gordon J concurring) agreed with Edelman J that, in light of the majority’s reasoning in Attwells v Jackson Lalic the appeal must be allowed. However he did not agree that Mr Kendirjian’s negligence action against the respondents did not give rise to a possibility of a challenge to the findings of the District Court.

One Reply to “Advocates immunity revisited”

Comments are closed.