D'Orta-Ekenaike v Victoria Legal Aid

The applicant, D'Orta-Ekenaike, sought legal assistance from Victoria Legal Aid (VLA) for a criminal prosecution. VLA retained a barrister, Mr McIvor, to represent the applicant at committal proceedings. The applicant pleaded guilty at the committal but later pleaded not guilty at trial, was convicted, had the verdict quashed on appeal, and was acquitted on retrial. The applicant alleged that VLA and Mr McIvor were negligent in advising him to plead guilty at the committal proceedings, claiming this advice was given at conferences prior to and on the day of the proceedings. The High Court of Australia considered whether the respondents were immune from suit for this alleged negligence.

The central legal issues before the High Court were whether the doctrine of advocate's immunity from suit for negligence extended to advice given in conferences, and whether the previous High Court decision in *Giannarelli v Wraith* should be reconsidered. The Court also examined the nature of the judicial process, the principle of finality in litigation, and whether statutory provisions or rules regarding abuse of process sufficiently addressed the need for finality without the need for advocate's immunity. The Court considered developments in English and other common law jurisdictions and the relevance of statutory changes since *Giannarelli*.

The High Court held that the advocate's immunity from suit for negligence, as established in *Giannarelli v Wraith*, should not be reopened. The Court reasoned that this immunity is fundamentally linked to the role of advocates within the judicial system and the necessity of ensuring finality in judicial determinations. The immunity protects advocates from being sued for work done in connection with the conduct of a case in court, or work intimately connected with such conduct, including advice given in conferences that is intrinsically linked to the conduct of the case. The Court found that the alleged negligence in this case fell within the scope of this immunity, and that the principles of finality and the integrity of the judicial process outweighed any perceived need to allow such claims.

The High Court granted special leave to appeal but dismissed the appeal with costs. The Court affirmed that the advocate's immunity applies to the specific acts or omissions alleged by the applicant against both the barrister and the employee of Victoria Legal Aid.