Australia's anachronistic advocates' immunity: Lessons from comparative tort law

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Show simple item record Anthony, T 2012-02-02T11:04:55Z 2007-01
dc.identifier.citation Tort Law Review, 2007, 15 (1), pp. 11 - 30
dc.identifier.issn 1039-3285
dc.identifier.other C1UNSUBMIT en_US
dc.description.abstract n recent years a judicial wave has washed away legal advocates' common law immunity in jurisdictions comparable with that of Australia. English and New Zealand courts abrogated immunity in 2000 and 2005-2006 respectively in order to create public confidence in the legal system. 3 In 2005, the Ontario Court of Appeal (Canada) established that advocates are liable for a reasonable standard of care, rather than "egregious error". 4 The superior courts of the United States have consistently maintained that counsel, including advocates appointed by the state since 1979, 5 have a duty of care to clients that is not protected by immunity. In 2005 the High Court of Australia anchored advocates' immunity contrary to the international tide. The decision arose from the case of D'Orta-Ekenaike v Victoria Legal Aid (2005)?223 CLR 1 [PDF] that involved an acquitted man who attempted to sue his barrister and solicitor for wrong advice that led to his earlier conviction and three years imprisonment. In a strong six-to-one majority, the High Court not only affirmed immunity of advocates from negligence suits, but also extended its scope from in-court to out-of-court immunity, and from barristers' immunity to instructing solicitors. The court's chief justification was to protect the public interest by ensuring the finality of trials. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) held that abolishing immunity would precipitate parlous re-litigation and undermine the administration of justice (at [31]).
dc.publisher Thomson Reuters
dc.title Australia's anachronistic advocates' immunity: Lessons from comparative tort law
dc.type Journal Article
dc.parent Tort Law Review
dc.journal.volume 1
dc.journal.volume 15
dc.journal.number 1 en_US
dc.publocation Australia en_US
dc.identifier.startpage 11 en_US
dc.identifier.endpage 30 en_US LAW.Faculty of law en_US
dc.conference Verified OK en_US
dc.for 1801 Law
dc.personcode 108953
dc.percentage 100 en_US Law en_US
dc.classification.type FOR-08 en_US
dc.edition en_US
dc.custom en_US en_US
dc.location.activity en_US
dc.description.keywords NA en_US
pubs.embargo.period Not known
pubs.organisational-group /University of Technology Sydney
pubs.organisational-group /University of Technology Sydney/Faculty of Law
pubs.organisational-group /University of Technology Sydney/Strength - Law Research
pubs.organisational-group /University of Technology Sydney/Strength - Strengthening Indigenous Communities
utslib.copyright.status Closed Access 2015-04-15 12:17:09.805752+10
utslib.collection.history Closed (ID: 3)

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