Legal Practitioners—Negligence—Barrister—Immunity from suit—Whether abrogated by statute—Solicitor—Immunity from suit—Legal Profession Practice Act 1958 (Vict.), s. 10(2).
Decisions
MASON C.J. The issue in these appeals is whether a Victorian barrister is liable in negligence to his clients who were tried and convicted of perjury, the negligence alleged being his failure to advise them that they had a good defence to the proceedings and his failure to object to certain inadmissible evidence tendered by the Crown. The evidence was essential to the Crown case. Without it the Crown could not have succeeded.
2. The first three appellants (i.e., all of the (Giannarell) appellants) were charged and convicted of perjury under s.314 of the (Crimes Ac) 1958 (Vict.) as a result of evidence which they gave to the Commonwealth and Victorian Royal Commission into the Federated Ship Painters' and Dockers' Union. The first appellant was released on a bond; the second and third appellants were sentenced to imprisonment. The first appellant did not appeal. The second and third appellants appealed unsuccessfully to the Court of Criminal Appeal. They then applied for special leave to appeal to this Court. Their application was successful, their appeal was allowed and their convictions were quashed: see Giannarelli v. The Queen (1983) 154 CLR 212. The appeal succeeded on the ground that s.6DD of the Royal Commissions Act 1902 (Cth) rendered the evidence given by the three appellants in the Royal Commission inadmissible in the criminal proceedings. The appellants allege that this point was raised for the first time in the application for special leave to appeal. The same point had been raised without success in other proceedings at first instance after the Court of Criminal Appeal dismissed the appeals by the second and third appellants, but before their application for special leave to appeal to this Court.
3. The first three appellants claim that the first respondent, who is a barrister, represented them in the committal proceedings, that the second respondent, who is a Queen's Counsel, represented them at the trial, and that the third respondent, who is also a Queen's Counsel, represented the second and third appellants in the Court of Criminal Appeal. The fourth appellant (i.e., the Shulkes appellant) was the instructing solicitor in the committal proceedings and at the trial.
4. The first three appellants sued the respondents and the fourth appellant in the Supreme Court of Victoria for damages for negligence, alleging a negligent failure (a) to advise that s.6DD would render the evidence given in the Royal Commission inadmissible and thus defeat the Crown case; and (b) to object on that ground to the tender of that evidence. The fourth appellant issued a third party notice against the first and second respondents. However, the first three appellants withdrew their claim against him so that he is a nominal party to the present proceedings.
5.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Giannarelli v Wraith [1988] HCA 52
Case
[1988] HCA 52
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Giannarelli v Wraith*, brought by the plaintiff, Mr. Giannarelli, against the defendant, Mr. Wraith, a barrister. The dispute concerned allegations of negligence against the barrister in his conduct of the plaintiff's defamation case in the Supreme Court of Victoria. The plaintiff sought to recover damages for the loss he allegedly suffered as a result of the barrister's alleged negligence.
The central legal issue before the High Court was whether a barrister owes a duty of care to their client in the conduct of litigation, and if so, whether that duty extends to the manner in which the barrister conducts the case in court, including the presentation of evidence and the making of submissions. This question involved considering the nature of the barrister's immunity from suit for negligence in relation to their conduct in court.
The High Court, by a majority, held that a barrister does owe a duty of care to their client in the conduct of litigation. However, the majority also affirmed the principle of barristerial immunity, finding that barristers are immune from suit for negligence in respect of their conduct of a case in court. This immunity was justified on public policy grounds, including the need for barristers to exercise their forensic judgment freely and without fear of subsequent litigation, and to avoid the potential for conflicting duties and the undermining of the administration of justice. The court reasoned that while a duty of care exists, the immunity protects the barrister's actions within the courtroom.
The appeal was dismissed, with the High Court upholding the decision of the Full Court of the Supreme Court of Victoria, which had found that the barrister was immune from suit for the alleged negligence.