Australia's Anachronistic Advocates' Immunity: Lessons from Comparative Tort Law

Abstract

The House of Lords and the New Zealand Court of Appeal have recently recognised the futility in upholding a common law immunity for legal advocates. However, the High Court of Australia in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 reasserted Australia's need to uphold this archaic privilege for the legal profession, ruling out lessons from comparable jurisdictions. The basis of this decision was finality in the trial process. However, the experiences of England, Canada and the United States demonstrate how finality can be preserved without immunity.

Keywords: comparative tort law, duty of care, advocates' immunity

JEL Classification: K10, K13