Playing Fair: When Advocates' Immunity is Out of Court
3 Journal of Civil Litigation and Practice 60 (2014)
11 Pages Posted: 16 Aug 2015
Date Written: March 18, 2014
Advocates’ immunity provides blanket immunity from all civil liability to Australian lawyers for their work in court as well as some work out of court. While rationales for the immunity once included the need to support the lawyer’s primary duty to the court, the Australian High Court has said the sole rationale for the immunity now is to ensure finality in litigation and protect judicial decision-making from collateral attack. This article explains how there appears to have been a lack of attention to the way in which the test for applying the immunity to out-of-court work developed and describes a “lack of fit” between the rationale and test that appears to be increasing in some parts of Australia.
Keywords: advocates immunity, immunity from suit, lawyer negligence, legal profession
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