- High Court fences lawyers off from blame
- By Michael Pelly
- Sydney Morning Herald
- 11/03/2005 Make a Comment
- Contributed by: admin ( 47 articles in 2005 )
Lawyers remain one of the last professions in Australia to be immune from negligence suits after a High Court decision that protects all work connected with a trial.
By a 6-1 majority, the court said opening up the work of advocates to lawsuits would be a nightmare for the administration of justice because cases would effectively be retried.
The decision drew scathing responses from surgeons, teachers and the dissenting judge, Michael Kirby, who said the court was "out of step with the legal world".
English, Canadian and New Zealand courts have removed the immunity, but the court said a central tenet of the judicial system was the "need for certainty and finality of decision ... The immunity of advocates is a necessary consequence of that need."
The leading judgement conceded some would view the decision "as a case of lawyers looking after their own, whether because of personal inclination and sympathy, or for other base motives".
All seven members of the court have practised as barristers. Three - Chief Justice Murray Gleeson and Justices Michael McHugh and Ian Callinan - have been presidents of state bar associations.
The decision means Ryan D'Orta-Ekenaike will not be able to sue Legal Aid Victoria, whose barrister advised him to plead guilty after he was charged with the rape of a woman in 1996.
When he changed his mind at trial and pleaded not guilty, the earlier plea was used as an admission and he was convicted.
After the verdict was set aside, he was acquitted at a retrial. He wanted to sue, but the case was shifted to the High Court because of a 1988 decision that protected work "intimately connected" with the conduct of a trial.
The judgement of Justices Gleeson, William Gummow, Ken Hayne and Dyson Heydon stressed that advocates were part of a judicial system that afforded immunity to all participants, be they judges, witnesses, jurors or lawyers. It said arguments about the difficulty of an advocate's job were "distracting and irrelevant" and that its main concern was the "injury to the public interest" by reopening finalised matters.
Justice McHugh said a lawyer's first duty was to the court and that the law sometimes required a lawyer to act contrary to the interests of a client.
He said lawyers were no different from other professions that owed no duty of care in certain circumstances, such as auditors, journalists and accountants.
Justice Kirby said the majority had not only preserved the immunity but enlarged it by including out-of-court advice and extending it to solicitors. A client can still sue for work not connected with a trial.
Justice Kirby noted architects, surgeons, engineers and teachers were all "held to legal account".
The chairman of the medico-legal section of the Royal Australasian College of Surgeons, Dr Tony Buzzard, said he was "unsympathetic" to the court's reasoning: "What about someone going into an operating theatre at 2am, dragged out of bed for a ruptured aorta?"
The president of the NSW Teachers Federation, Maree O'Halloran, said teachers also made decisions in a split second yet increasingly faced lawsuits from parents.
But a member of the executive of the Law Council of Australia, Ross Ray, QC, said without the immunity, "litigation would become lengthy, very complex and even more costly than it already is".
Professions the High Court has held can be sued for negligence
Architects, civil engineers, dental surgeons, specialist physicians and surgeons, anaesthetists, electrical contractors, people who give financial advice, police, builders, pilots, solicitors (for out-of-court advice) and teachers.
Professions that can't Lawyers (for trial work)
AND A TONGUE IN CHEEK COMMENTARY FROM RICHARD ACKLAND ON THE DECISION
Majority ruling gives the minnows little chance
By Richard Ackland
Sydney Morning Herald
March 11, 2005
Hard-pressed lawyers across the country will be bitterly disappointed in yesterday's thinking from a majority of the High Court. The members of the court, with the exception of Justice Michael Kirby, trotted out plenty of well-worn reasoning as well as some exciting new ideas to bolster for future generations of hopelessly negligent advocates their immunity from civil action brought by unhappy clients.
The preservation of the immunity dashes a wonderful opportunity to revive the fortunes of solicitors and barristers suffering from the torment of tort law reform, the death of workers compensation litigation and an unrewarding future fighting for the victims of asbestos-related diseases.
What it means for the actual victims of an advocate's negligence in court proceedings doesn't bear thinking about, which is precisely the approach of the High Court majority.
Chief Justice Murray Gleeson teamed up with the other dry sticks (William Gummow, Kenneth Hayne and Dyson Heydon) to formulate a judgement against tossing away the ancient immunity. Justices Michael McHugh and Ian Callinan wrote separate judgements in support of the majority, and Justice Kirby was the sole dissenter.
The lonely reasons of the nonconformist, despite the sniping from McHugh, restore Kirby to the position of being the only reasonable human on the High Court. It's not an easy position to hold and he could lose it (again) tomorrow should he depart from the path of righteousness in another decision. What stimulated so much anticipation about yesterday's decision was that on Tuesday the New Zealand Court of Appeal ruled against the immunity from suit in a case called Sun Poi Lai v Chamberlains.
Four years ago the House of Lords struck down the immunity in England and Wales. The immunity does not exist in the US, and a judge in Canada has struck it down. So would Australia be swept along by the tide of events or would the ancient rites of the law be kept sacred? Well, we now know the answer.
You'd be in awe at the convolutions the majority performed to cast the House of Lords decision as unworthy of being followed. The House was divided in aspects of the decision. The Poms were influenced by the European Convention on Human Rights and the Human Rights Act which, thank heavens, we don't have to worry about here because everyone has the protection of the common law and the High Court itself. The legal profession is organised differently in England. We don't have to follow the House of Lords, and particularly when English jurisprudence is now infected with a lot of foreign human rights stuff.
The High Court says that what people respect and what is a "central and pervading tenet" of our jurisprudence is the idea of finality. One might rub one's eyes in disbelief at reading such a sentiment in a judicial system in which length of time is the measure of reward and where appellate correction is the order of the day.
But apart from the beauty of finality and "the quelling of controversies", the court gave weighty consideration to the importance of the judicial process as an aspect of government.
Here the majority excelled: "The community at large has a vital interest in the quelling of that controversy. And that is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way this society is governed."
It might be useful to just pause a moment right there and remember what this is all about. In the case at issue, Ryan D'Orta-Ekenaike, the applicant, was charged with rape. He wanted to plead not guilty, but his legal advisers strongly urged him at the committal to plead guilty - which is what he did.
At his trial he changed his plea to not guilty, but the earlier guilty plea was led in evidence and he was convicted and sent to jail. He successfully appealed, and at his retrial there was no mention of the earlier plea and he was acquitted. He had wanted to plead not guilty all along, but his lawyers urged him to do otherwise. Now he cannot sue them.
One fervently hopes that D'Orta-Ekenaike is now happy that his controversy has been quelled.
justinian@lawpress.com.au
By a 6-1 majority, the court said opening up the work of advocates to lawsuits would be a nightmare for the administration of justice because cases would effectively be retried.
The decision drew scathing responses from surgeons, teachers and the dissenting judge, Michael Kirby, who said the court was "out of step with the legal world".
English, Canadian and New Zealand courts have removed the immunity, but the court said a central tenet of the judicial system was the "need for certainty and finality of decision ... The immunity of advocates is a necessary consequence of that need."
The leading judgement conceded some would view the decision "as a case of lawyers looking after their own, whether because of personal inclination and sympathy, or for other base motives".
All seven members of the court have practised as barristers. Three - Chief Justice Murray Gleeson and Justices Michael McHugh and Ian Callinan - have been presidents of state bar associations.
The decision means Ryan D'Orta-Ekenaike will not be able to sue Legal Aid Victoria, whose barrister advised him to plead guilty after he was charged with the rape of a woman in 1996.
When he changed his mind at trial and pleaded not guilty, the earlier plea was used as an admission and he was convicted.
After the verdict was set aside, he was acquitted at a retrial. He wanted to sue, but the case was shifted to the High Court because of a 1988 decision that protected work "intimately connected" with the conduct of a trial.
The judgement of Justices Gleeson, William Gummow, Ken Hayne and Dyson Heydon stressed that advocates were part of a judicial system that afforded immunity to all participants, be they judges, witnesses, jurors or lawyers. It said arguments about the difficulty of an advocate's job were "distracting and irrelevant" and that its main concern was the "injury to the public interest" by reopening finalised matters.
Justice McHugh said a lawyer's first duty was to the court and that the law sometimes required a lawyer to act contrary to the interests of a client.
He said lawyers were no different from other professions that owed no duty of care in certain circumstances, such as auditors, journalists and accountants.
Justice Kirby said the majority had not only preserved the immunity but enlarged it by including out-of-court advice and extending it to solicitors. A client can still sue for work not connected with a trial.
Justice Kirby noted architects, surgeons, engineers and teachers were all "held to legal account".
The chairman of the medico-legal section of the Royal Australasian College of Surgeons, Dr Tony Buzzard, said he was "unsympathetic" to the court's reasoning: "What about someone going into an operating theatre at 2am, dragged out of bed for a ruptured aorta?"
The president of the NSW Teachers Federation, Maree O'Halloran, said teachers also made decisions in a split second yet increasingly faced lawsuits from parents.
But a member of the executive of the Law Council of Australia, Ross Ray, QC, said without the immunity, "litigation would become lengthy, very complex and even more costly than it already is".
Professions the High Court has held can be sued for negligence
Architects, civil engineers, dental surgeons, specialist physicians and surgeons, anaesthetists, electrical contractors, people who give financial advice, police, builders, pilots, solicitors (for out-of-court advice) and teachers.
Professions that can't Lawyers (for trial work)
AND A TONGUE IN CHEEK COMMENTARY FROM RICHARD ACKLAND ON THE DECISION
Majority ruling gives the minnows little chance
By Richard Ackland
Sydney Morning Herald
March 11, 2005
Hard-pressed lawyers across the country will be bitterly disappointed in yesterday's thinking from a majority of the High Court. The members of the court, with the exception of Justice Michael Kirby, trotted out plenty of well-worn reasoning as well as some exciting new ideas to bolster for future generations of hopelessly negligent advocates their immunity from civil action brought by unhappy clients.
The preservation of the immunity dashes a wonderful opportunity to revive the fortunes of solicitors and barristers suffering from the torment of tort law reform, the death of workers compensation litigation and an unrewarding future fighting for the victims of asbestos-related diseases.
What it means for the actual victims of an advocate's negligence in court proceedings doesn't bear thinking about, which is precisely the approach of the High Court majority.
Chief Justice Murray Gleeson teamed up with the other dry sticks (William Gummow, Kenneth Hayne and Dyson Heydon) to formulate a judgement against tossing away the ancient immunity. Justices Michael McHugh and Ian Callinan wrote separate judgements in support of the majority, and Justice Kirby was the sole dissenter.
The lonely reasons of the nonconformist, despite the sniping from McHugh, restore Kirby to the position of being the only reasonable human on the High Court. It's not an easy position to hold and he could lose it (again) tomorrow should he depart from the path of righteousness in another decision. What stimulated so much anticipation about yesterday's decision was that on Tuesday the New Zealand Court of Appeal ruled against the immunity from suit in a case called Sun Poi Lai v Chamberlains.
Four years ago the House of Lords struck down the immunity in England and Wales. The immunity does not exist in the US, and a judge in Canada has struck it down. So would Australia be swept along by the tide of events or would the ancient rites of the law be kept sacred? Well, we now know the answer.
You'd be in awe at the convolutions the majority performed to cast the House of Lords decision as unworthy of being followed. The House was divided in aspects of the decision. The Poms were influenced by the European Convention on Human Rights and the Human Rights Act which, thank heavens, we don't have to worry about here because everyone has the protection of the common law and the High Court itself. The legal profession is organised differently in England. We don't have to follow the House of Lords, and particularly when English jurisprudence is now infected with a lot of foreign human rights stuff.
The High Court says that what people respect and what is a "central and pervading tenet" of our jurisprudence is the idea of finality. One might rub one's eyes in disbelief at reading such a sentiment in a judicial system in which length of time is the measure of reward and where appellate correction is the order of the day.
But apart from the beauty of finality and "the quelling of controversies", the court gave weighty consideration to the importance of the judicial process as an aspect of government.
Here the majority excelled: "The community at large has a vital interest in the quelling of that controversy. And that is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way this society is governed."
It might be useful to just pause a moment right there and remember what this is all about. In the case at issue, Ryan D'Orta-Ekenaike, the applicant, was charged with rape. He wanted to plead not guilty, but his legal advisers strongly urged him at the committal to plead guilty - which is what he did.
At his trial he changed his plea to not guilty, but the earlier guilty plea was led in evidence and he was convicted and sent to jail. He successfully appealed, and at his retrial there was no mention of the earlier plea and he was acquitted. He had wanted to plead not guilty all along, but his lawyers urged him to do otherwise. Now he cannot sue them.
One fervently hopes that D'Orta-Ekenaike is now happy that his controversy has been quelled.
justinian@lawpress.com.au
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