Is There a Future for Advocates’ Immunity?
James Goudkamp, ‘Is there a Future for Advocates’ Immunity?’ (2002) 10 Tort Law Review pp.188–206.
19 Pages Posted: 22 Mar 2016 Last revised: 20 May 2017
Date Written: 2002
Immunities from tortious liability are being dismantled. The immunity of landlords was vanquished by Northern Sandblasting Pty Ltd v Harris. The immunity accorded to health care professionals who act in accordance with a responsible body of medical opinion was demolished by Rogers v Whitaker. The Crown immunity from tort has been reduced to a shadow of its former existence. And, most recently, the immunity of highway authorities for nonfeasance was exploded by the conjoined decisions in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council. However, in contrast to this trend is the High Court’s decision in Giannarelli v Wraith, in which a majority confirmed the two-century-old rule that advocates enjoy, in certain circumstances, immunity from liability in negligence. This decision has been adamantly defended by the legal profession, although it is has been subject to almost universal criticism in academic circles. This article examines four inter-related issues. First, the foundation and scope of the immunity. Second, the arguments for and against its abolition. Third, whether it is appropriate for the High Court to reconsider the immunity or whether this task should be left to the legislature. Fourth, the possible methods by which the immunity could be clarified if it is to remain part of Australian law.
Keywords: tort, negligence, defences, immunity, advocates, lawyers, duty of care
JEL Classification: K13
Suggested Citation: Suggested Citation