A majority of the High Court has explained that: •
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the immunity applies to "work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or ... 'work intimately connected with' work in a court"; and in its view those two statements of the test do not differ "in any significant way"9.
As was observed on these pages some 11 years ago,10 in 2005 the High Court resolved by majority11, in D'Orta-Ekenaike v Victoria Legal Aid12, to confirm the position regarding the immunity under Australian common law13 in accordance with an earlier decision of the High Court (also reached by majority14) some 6½ years before in Giannarelli v Wraith15. However, unlike both those earlier cases in Attwells all members of the High Court were unanimous in affirming the continued existence of the immunity under Australian common law16. Their Honours differed, however, in their views as to its scope. ATTWELLS V JACKSON LALIC – THE FACTS Mr Attwells and Ms Lord (the guarantors) guaranteed payment of the liabilities of a company, Wilbidgee Beef Pty Limited (Wilbidgee), to Australia and New Zealand Banking Group Limited (ANZ). Wilbidgee defaulted on its obligations to ANZ, and the bank commenced proceedings against Wilbidgee and the guarantors in the Supreme Court of New South Wales (guarantee proceedings). The guarantors and Wilbidgee retained Jackson Lalic Lawyers Pty Limited (Jackson Lalic) to advise and act for them in relation to the guarantee proceedings. The amount of Wilbidgee's indebtedness to ANZ was almost $3.4 million and was secured by various securities given in favour of ANZ. However, the liability of the guarantors under their guarantee in favour of ANZ was limited to $1.5 million. On the opening day of the trial, 15 June 2010, counsel for ANZ acknowledged in open court that the claim by ANZ against the guarantors on the guarantee was limited, that ANZ accepted that the debt due by the guarantors on the guarantee was $1.5 million plus interest and enforcement costs and that the amount of the debt owed by the guarantors, as certified by ANZ, was $1,856,122. On the same day, senior counsel briefed by Jackson Lalic to appear for the guarantors negotiated a settlement of the guarantee proceedings on terms that there would be judgment for ANZ for $1.75 million, inclusive of costs, and Mr
Attwells and Ms Lord would have until the end of November 2010 to pay that amount. Shortly after the luncheon adjournment on 15 June 2010, senior counsel approached the guarantors and a solicitor employed by Jackson Lalic and said words to the effect, "I have got you [$1.75 million] and November to pay. Is that OK?" The guarantors gave instructions to settle the proceedings on that basis. At about 2.30 pm, the court was informed that the guarantee proceedings had been settled, subject to terms. The hearing of the guarantee proceedings was adjourned to facilitate preparation of the settlement terms to be handed up the following day. During the afternoon, draft terms of settlement, in the form of consent orders, were prepared by the solicitors for ANZ and forwarded to the Jackson Lalic solicitor. On the evening of 15 June 2010, the Jackson Lalic solicitor advised the guarantors that they should sign the consent orders and consent to judgment against themselves, in favour of ANZ, in the sum of approximately $3.4 million because, if they defaulted in payment of the sum of $1.75 million by 19 November 2010, it would not make any difference if the judgment in favour of ANZ was for approximately $3.4 million or any other sum. The guarantors signed the consent orders. The consent orders were submitted to the court on 16 June 2010.
the terms of the consent orders, and in failing to advise them as to the effect of the consent orders. THE IMMUNITY AND SETTLING CIVIL PROCEEDINGS The majority (French CJ, Kiefel, Bell, Gageler and Keane JJ): The majority held that the immunity did not apply on the facts before it. In its reasons, the majority noted that there is a specific concern which justifies the immunity. It is this: once a controversy has been finally resolved by the exercise of the State's judicial power, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination is wrong17. Consistent with that view, the majority reached conclusions, among others, to the following effect: •
the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court18;
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that is so because it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of "judicial power" which attracts the immunity19;
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the notion of an "intimate connection" between the work the subject of the claim by the disappointed client and the conduct of the case is only concerned with work by the advocate that bears upon the judge's determination of the case20;
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negligent advice to plead guilty in a criminal case does affect the determination of the case by the court21 because:
The consent orders comprised two sections – the first reflected orders of the court while the second recorded an agreement between the parties. The first section reflected entry of a "[v]erdict and judgment" for ANZ against the guarantors and Wilbidgee in the sum of approximately $3.4 million (judgment debt). The second section recorded, in effect, that ANZ would not enforce the judgment debt provided, relevantly, that the guarantors and Wilbidgee paid the amount of the judgment debt to ANZ on or before 19 November 2010 and that if the guarantors and Wilbidgee did not do so ANZ and the receivers of Wilbidgee would be at liberty to enforce the judgment debt forthwith.
o the connection of a plea of guilty at committal is intimately connected with the hearing of that matter (as the timing of the plea affects the sentence imposed)22; and o the judicial function is squarely engaged in determining whether to accept a plea of guilty (as a court may not accept the plea unless it is freely made by the accused)23;
The guarantors failed to meet that obligation, and a subsequent attempt to set aside the settlement as an unenforceable penalty was dismissed. Mr Attwells and the second appellant (an assignee of Mr Attwells's rights against the Jackson Lalic) then issued proceedings in the Supreme Court of New South Wales against Jackson Lalic alleging that it had been negligent in advising the guarantors to consent to judgment being entered against them in
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the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings24;
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on the facts: o the primary judge had made no finding of fact or law which 25