Giannarelli & Ors v Wraith & Ors; Shulkes v Wraith

The case involves appeals by Emilio Giannarelli, Mario Giannarelli, and Giovanni Giannarelli against Daryl G. Wraith, Charles Francis, and John Joseph Hedigan. The dispute concerns the liability of solicitors for negligence in their advocacy. The proceedings were heard in the High Court of Australia.

The central legal issue before the Court was whether solicitors, acting as advocates, possessed immunity from liability for negligence in their conduct of litigation. This question arose in the context of interpreting legislation enacted in 1891, with the respondents arguing that this legislation recognised and preserved a common law immunity for solicitor advocates. The appellants contended that the historical context and contemporary perceptions of the law in 1891 indicated a different understanding, suggesting that solicitor advocates were not immune from such liability.

The Court considered historical materials, including contemporary journals and academic works, to ascertain the legislative intent and the prevailing legal perceptions in 1891. The appellants argued that if solicitor advocates had been immune, the legislation would have been welcomed by the bar, rather than met with fierce opposition and the adoption of contracting-out agreements. This opposition and the subsequent contractual arrangements were presented as evidence that the perception of the law at the time was that solicitor advocates were not immune from negligence claims. The Court was therefore required to determine whether the historical evidence supported the respondents' claim of an implied common law immunity for solicitor advocates at the time of the 1891 legislation.