David Kendirjian v Eugene Lepore & Anor [2017] HCA 13: Advocates' Immunity

Wednesday 29 March 2017 @ 12.04 p.m. | Judiciary, Legal Profession & Procedure | Legal Research | Torts, Damages & Civil Liability

In David Kendirjian v Eugene Lepore & Anor [2017] HCA 13 (29 March 2017) the High Court of Australia has unanimously allowed an appeal from the Court of Appeal of the Supreme Court of NSW in relation to the second respondent to the appeal; holding that an advocates' immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision.

Background

The appellant, having been injured in a car accident in November 1999; commenced legal proceedings in 2004, in the District Court of NSW, against the other driver involved in the accident. The other driver had admitted liability and on the first day of the trial on quantum, the other driver's legal representatives made an offer of settlement to the appellant's solicitor (the first respondent) and barrister (the second respondent) of $600,000 plus costs.  

The settlement offer was not accepted so the appellant’s trial proceeded.  As a result of the trial the appellant obtained judgment in the amount of $308,432.75 plus costs.  A subsequent appeal to the NSW Court of Appeal in relation to quantum was dismissed.

Following the appeal on quantum, in 2012, the appellant brought a claim in the District Court against the respondents alleging that the respondents were negligent in advising the appellant to decline the settlement offer.  Central to the appellant's claim were allegations that the respondents did not advise him of the amount of the settlement offer, ". . . but merely of the fact that an offer had been made".  The appellant also pleaded that the respondents rejected the settlement offer, "… absent any express instructions" from him, because the offer was ". . . too low".  

The respondents successfully brought an application in the District Court for summary judgment, where the District Court held that the respondents' conduct was covered by advocates' immunity (see Kendirjian v Lepore [2014] NSWDC 66) – a conclusion that was upheld by the NSW Court of Appeal (see Kendirjian v Lepore [2015] NSWCA 132 (21 May 2015)).

Appeal to the High Court

By grant of special leave, the appellant appealed to the High Court and  in November 2016, the Court made consent orders  allowing the appeal in relation to the first respondent.  

In today’s decision (29 March 2017), the High Court has unanimously allowed the appeal in relation to the second respondent.  In reaching its decision the High Court has held that an advocates' immunity did not extend to the advice given in relation to the settlement offer because the advice did not affect the judicial determination of the case.  

In  reaching its decision, the High Court declined to distinguish or reopen its most recent deliberations on advocates' immunity in  Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16.  

On this point, see Justice Edelman at [34] (with whom Kiefel CJ, Bell, Gageler, Keane JJ concurred) who allowed the appeal saying:

“. . . the negligence action by Mr Kendirjian against the respondents does not give rise to the possibility of any challenge to the findings of the District Court concerning Mr Kendirjian's credibility or otherwise. From Mr Kendirjian's perspective, he relies on the decision of the District Court in order to prove his alleged loss. From the perspective of the second respondent, issues concerning the reasonableness of advice given will be assessed at the time the advice was given, not at the time of the District Court judgment. The assessment of reasonableness will not involve any consideration of whether the decision of the District Court, affirmed by the Court of Appeal, was right or wrong whether in relation to credibility or otherwise. It was not suggested that any questions of reasonable foreseeability of loss could conceivably lead to a challenge to the reasoning or decision in the District Court. Indeed, nothing in the second respondent's pleaded defence raises any suggestion of a challenge to the reasoning or decision in the District Court.”

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Sources:

Kendirjian v Lepore [2017] HCA 13 29 March 2017 and High Court transcripts and summaries.

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