Attwells v Jackson Lalic Lawyers Pty Ltd

The High Court of Australia considered an appeal by the appellants, who had sued Jackson Lalic Lawyers Pty Ltd (the respondent) for alleged negligence in providing advice that led to the settlement of prior proceedings. The dispute centred on whether the respondent, as legal practitioners, was immune from suit for this advice, which was given out of court but resulted in consent orders being made by the court. The Law Society of New South Wales was granted leave to intervene in the proceedings.

The central legal issue before the High Court was whether advocate's immunity, as previously established in cases like *Giannarelli v Wraith* and *D'Orta-Ekenaike v Victoria Legal Aid*, extended to advice given by a legal practitioner out of court that led to the settlement of proceedings, which were then formalised by consent orders. The High Court was also asked to consider whether those prior decisions should be reconsidered. The appellants contended that the respondent's advice, even if given out of court, was not so intimately connected with the judicial determination of the case as to attract immunity, and that the negligence proceedings did not constitute a collateral attack on any judicial determination.

The High Court, by majority, allowed the appeal, holding that the advocate's immunity does not extend to advice given out of court that leads to a settlement, even if that settlement is subsequently embodied in consent orders. The Court reasoned that the immunity is confined to work that is an essential part of the judicial process, such as work done in court or work done out of court that directly affects the conduct of proceedings in court and leads to a judicial determination. Giving advice on settlement, while important, does not involve the exercise of judicial power or a judicial determination of the parties' rights. The Court distinguished the present case from *Giannarelli* and *D'Orta-Ekenaike*, finding that the alleged negligence in providing settlement advice did not involve a "collateral attack" on a judicial decision, but rather a challenge to the conduct of the legal practitioner in advising on the settlement itself.

Consequently, the High Court set aside the orders of the Court of Appeal and the primary judge, and ordered that the separate question of whether the respondent was immune from suit be answered in the negative. The matter was remitted for determination on the merits, with the respondent ordered to pay the appellants' costs.