Advocate’s immunity endorsed at appellate level again

Jun 2021 | Insurance

The New South Wales Court of Appeal has recently considered advocate’s immunity in the context of allegedly negligent advice from a solicitor to a client to plead guilty in a criminal matter in the case of Jimenez v Watson.¹

The decision affirms the reasoning of the High Court in D’Orta-Ekenaike v Victoria Legal Aid,² Giannarelli v Wraith³ and Attwells v Jackson Lalic Lawyers Pty Ltd.⁴ It is noteworthy because it is the first time an appellate court has considered and dismissed a novel argument by the plaintiff (based on the reasoning in Attwells) that an advocate’s alleged failure to persuade a prosecutorial body to discontinue a criminal proceeding was outside the scope of advocate’s immunity.

Background

The applicant was charged with two offences: possession of child abuse material pursuant to the State legislation, and using a carriage service to access child pornography material pursuant to Commonwealth legislation. In relation to the Commonwealth offence a ‘child’ is defined as a person who is or appears to be under 18 years of age. However, a ‘child’ for the purpose of the State legislation is defined as a person who is under 16 years of age.

The applicant retained the respondent solicitor to represent him in defending the prosecution of those charges. Following successful submissions by the respondent, the prosecution withdrew the Commonwealth offence and decided to deal with the State offence summarily.

The applicant pleaded guilty to the State offence and received a fine and had his name entered onto the Sex Offenders Registry. At the time of entering his guilty plea, the applicant was not advised by his solicitor about, and did not appreciate the differing definitions of ‘child’ in the State and Commonwealth legislation.

It was accepted that the applicant understood when he pleaded guilty to the State offence, that a child was a person under the age of 18 years. The applicant’s conviction was quashed by the Criminal Court of Appeal on the basis that the applicant’s plea was not attributable to a genuine consciousness of guilt.

The applicant commenced negligence proceedings against the respondent solicitors. He alleged that because of his conviction, he lost income, friendships and his relationship with his fiancée.

Allegations against the respondent

The applicant alleged the respondent had been negligent in the provision of legal services, namely that he did not advise him that a ‘child’ for the purposes of the State legislation was a person who was or appeared to be under the age of 16 years of age, as opposed to 18 years.

The applicant alleged that his solicitor’s negligence lost him the opportunity to submit to the prosecuting authority that the proceedings should be discontinued in the light of the requirement that the images be of a child under the age of 16.

Decision at first instance

The primary judge found that the applicant’s claim was barred by advocate’s immunity, having regard to the High Court’s reasoning in Attwells, D’Orta-Ekenaike v Victoria Legal Aid and Giannarelli v Wraith.

The applicant argued that the immunity provided for in those cases had been narrowed by Attwells in a way that allowed the present claim, however did not assert that Giannarelli or D’Orta-Ekenaike were distinguishable from the current case.

The primary judge held that, in line with the cases outlined above, it was sufficient to enliven the immunity that the conduct or advice of the respondent was intimately connected with the applicant’s plea, even if it was also connected with the exercise of prosecutorial discretion.

In Attwells the High Court found that advocate’s immunity did not apply to an advocate’s advice leading to the settlement of civil proceedings. In Kendirjian v Lepore,⁵ the High Court held, following Attwells, that advocate’s immunity did not attach to advice not to accept a settlement offer.

In ordering summary judgment, the primary judge acknowledged that the negligent avoidance of a criminal trial by a plea may be in some relevant way analogous to the negligent avoidance of a civil trial by an unfavourable settlement.

However, in finding that the immunity applied the primary judge held:

'The [High] Court has drawn a bright line distinction between faulty advice leading to a guilty plea and faulty advice leading to a settlement of civil proceedings. Only the first is within the immunity. If that immunity is to be narrowed, it is not open to this Court to do it, in the face of the repeated endorsement in Attwells and Kendirjian v Lepore of the decisions in Giannarelli and D'Orta-Ekenaike.’

Decision on appeal

The Court of Appeal upheld the District Court’s decision to dismiss the application for leave to appeal, providing an analysis of the key principles underlying advocate’s immunity in relation to criminal proceedings.

There are three matters that need to be established for advocate’s immunity to apply:

1. The negligent conduct must affect the way the case was conducted in court;

2. There must be a connection between that work and the court’s decision; and

3. The controversy must have been quelled by the court.

The solicitor’s advice about the ingredient of the offence was clearly advice given about the law and it was, on the applicant’s own case, central to his decision to plead guilty. The Court of Appeal found that it involved the provision of legal services outside of court which moved the case to a judicial determination.

Finality and certainty

The justification for the principle of advocate’s immunity is the public interest in judicial decisions being final and certain. That is, that those decisions should not be reopened by a collateral attack.

The Court of Appeal noted that the judicial decision which the applicant contended caused him loss had already been quashed and the applicant acquitted of the relevant charge. As such, the Court of Appeal considered how advocate’s immunity applies in circumstances where neither party seeks to attack the final determination.

Giannarelli v Wraith

The Court of Appeal applied Giannarelli v Wraith, in which the plaintiffs sued the barristers who represented them in a criminal proceeding in which they were ultimately convicted. The plaintiffs alleged the barristers failed to advise them that certain evidence was inadmissible and failed to object to that evidence being tendered. The plaintiffs’ convictions were later quashed on appeal by the High Court.

In that case, the plaintiffs did not contend that their initial convictions were unlawful. Nonetheless, the High Court held that the barristers were entitled to advocate’s immunity for work done which led to a decision affecting the conduct of the case in court, whether or not that decision was the final determination.

D’Orta-Ekenaike v Victoria Legal Aid

The Court of Appeal also considered D’Orta-Ekenaike in which, similarly to this case, the plaintiff sued his solicitors on the basis that they allegedly provided negligent advice which led the plaintiff to enter a guilty plea. While the plaintiff’s conviction was ultimately quashed, he alleged that negligent advice caused him to lose his liberty and income in the period between him being convicted, and that conviction being quashed.

Again, the plaintiff did not seek to challenge the validity of the final determination of the criminal proceeding. However, the High Court held that just as a final judicial determination should not be challenged, neither should an intermediate determination. On that basis, the High Court concluded that for the most part, a person wrongly convicted, whose conviction was ultimately quashed, could not say that the initial conviction was due to the negligence of his or her lawyers.

That reasoning was not criticised in Attwells, and the Court of Appeal therefore found it was bound by those authorities in the present case. For that reason, the Court of Appeal found that the immunity did apply and the application for leave to appeal the decision should therefore be dismissed.

Conclusion

This case demonstrates that a plaintiff cannot seek to bypass the advocate’s immunity by framing their case as a lost opportunity to make submissions to a prosecutorial body, enter a different plea or have the proceeding against them discontinued in some other way before a judicial determination was made.

At its core, claims framed in that way are still considered to be a collateral attack on the integrity of the original trial process and the decisions made (including intermediate decisions) throughout that process. Softening the challenge to finality by alleging that no outcome would have arisen had appropriate advice been given still offends the public policy underpinning the immunity.

1 [2021] NSWCA 55.
2 (2005) 223 CLR 1.
3 (1988) 165 CLR 543.
4 (2016) 259 CLR 1.
5 (2017) 259 CLR 275.

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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.