Kendirjian v Lepore

Case [2017] HCA 13

HIGH COURT OF AUSTRALIA

KIEFEL CJ
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

DAVID KENDIRJIAN  APPELLANT

AND

EUGENE LEPORE & ANOR  RESPONDENTS

Kendirjian v Lepore

[2017] HCA 13

29 March 2017

S170/2016

ORDER

1.Appeal allowed from the Supreme Court of New South Wales Court of Appeal's decision in relation to the second respondent.

2.Set aside the orders of the Supreme Court of New South Wales Court of Appeal made on 21 May 2015 and 1 June 2015 insofar as they apply to the second respondent and, in lieu thereof, order that the appeal against the second respondent to the Supreme Court of New South Wales Court of Appeal be allowed and the orders made by District Court Judge Taylor SC on 16 May 2014 insofar as they relate to the second respondent be set aside and in lieu thereof order that the Notice of Motion filed by the second respondent on 31 July 2013 in the District Court of New South Wales be dismissed.

3.The second respondent pay the appellant's costs of and incidental to the second respondent's Notice of Motion filed in the District Court of New South Wales on 31 July 2013.

4.The second respondent pay the appellant's costs of and incidental to the application for leave to appeal and the appeal to the Supreme Court of New South Wales Court of Appeal below against the judgment and orders made by District Court Judge Taylor SC in favour of the second respondent.

5.The second respondent pay the appellant's costs of and incidental to the application for special leave to appeal and the appeal to the High Court of Australia against the judgment and orders made by the Supreme Court of New South Wales Court of Appeal on 21 May 2015 and 1 June 2015 in favour of the second respondent.

6.Remit the balance of the matter to the District Court of New South Wales.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with D M C Aquilina for the appellant (instructed by Longton Legal)

No appearance for the first respondent

J V Agius SC with A M Hawkins for the second respondent (instructed by Carneys Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kendirjian v Lepore

Legal practitioners – Negligence – Advocates' immunity from suit – Where settlement offer made and rejected on first day of trial – Where rejection of settlement offer followed by judicial decision – Where damages awarded lower than settlement offer – Where solicitor and barrister alleged to have given negligent advice in relation to settlement offer – Whether advice affected conduct of case in court by bearing upon court's determination of case – Whether advocate immune from suit.

High Court – Stare decisis – Whether Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA…

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AGLC
Kendirjian v Lepore [2017] HCA 13
Case
[2017] HCA 13
Decision Date

CaseChat Overview and Summary

The appellant, Mr Kendirjian, brought a claim against the respondents, a solicitor and barrister, alleging negligence in their advice concerning a settlement offer made on the first day of a personal injury trial. Mr Kendirjian sought damages calculated as the difference between this settlement offer of $600,000 plus costs and the lesser amount ultimately awarded by the District Court. The respondents successfully applied for summary judgment in the District Court, and this decision was upheld by the Court of Appeal of New South Wales, both courts finding that the respondents were immune from suit.

The central legal issue before the High Court was whether the respondents, as legal practitioners, were immune from suit for alleged negligence in their advice regarding the settlement offer, which ultimately led to the rejection of that offer and the continuation of the trial. This required the Court to consider the scope and application of advocates' immunity, particularly in circumstances where the advice or omission to advise affected the conduct of the case in court and bore upon the judicial determination of the proceedings. The Court was also asked to consider whether the previous decision of *Attwells v Jackson Lalic Lawyers Pty Ltd* should be reopened.

The High Court allowed the appeal, finding that the doctrine of advocates' immunity did not extend to the circumstances of this case. The Court reasoned that the immunity is confined to decisions and advice that are "intimately connected" with the "conduct of the case in court" and that affect the "final determination" of the case by the court. The Court distinguished the present case from those where immunity has been applied, holding that the advice concerning the settlement offer, while influencing the decision to reject it and continue the trial, did not have the requisite functional connection to the judicial determination of the case itself. The Court clarified that the immunity does not extend to advice concerning settlement offers, even if the rejection of such an offer leads to the case proceeding to judgment.

Consequently, the High Court set aside the orders of the Court of Appeal and remitted the balance of the matter to the District Court of New South Wales. The second respondent was ordered to pay the appellant's costs of the proceedings in the District Court, the Court of Appeal, and the High Court.

Orders

Orders of the court

1. Appeal allowed from the Supreme Court of New South Wales Court of Appeal's decision in relation to the second respondent.

2. Set aside the orders of the Supreme Court of New South Wales Court of Appeal made on 21 May 2015 and 1 June 2015 insofar as they apply to the second respondent and, in lieu thereof, order that the appeal against the second respondent to the Supreme Court of New South Wales Court of Appeal be allowed and the orders made by District Court Judge Taylor SC on 16 May 2014 insofar as they relate to the second respondent be set aside and in lieu thereof order that the Notice of Motion filed by the second respondent on 31 July 2013 in the District Court of New South Wales be dismissed.

3. The second respondent pay the appellant's costs of and incidental to the second respondent's Notice of Motion filed in the District Court of New South Wales on 31 July 2013.

4. The second respondent pay the appellant's costs of and incidental to the application for leave to appeal and the appeal to the Supreme Court of New South Wales Court of Appeal below against the judgment and orders made by District Court Judge Taylor SC in favour of the second respondent.

5. The second respondent pay the appellant's costs of and incidental to the application for special leave to appeal and the appeal to the High Court of Australia against the judgment and orders made by the Supreme Court of New South Wales Court of Appeal on 21 May 2015 and 1 June 2015 in favour of the second respondent.

6. Remit the balance of the matter to the District Court of New South Wales.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ BELL J GAGELER J KEANE J NETTLE J GORDON J EDELMAN J
In Mr Kendirjian's claim against the respondents, he sought damages of $312,567.25 plus interest and costs. This was said to have been calculated by subtracting the amount recovered after the personal injury trial from the settlement offer of $600,000 plus costs. Mr Kendirjian's claim against the respondents therefore relied upon the amount awarded by the District Court in the personal injury proceedings in order to quantify the loss that he allegedly suffered. Other particulars of Mr Kendirjian's claim also appeared to rely on the District Court judgment, such as his allegations against each respondent of a failure to advise that the District Court could award damages in an amount lower than the "lower range of $415,984". The decisions of the District Court and Court of Appeal The respondents successfully brought an application in the District Court for summary judgment. The District Court held that the respondents were immune from liability in negligence. This conclusion was upheld by the Court of Appeal. Both the District Court and the Court of Appeal relied upon seriously considered obiter dicta in the earlier decision of the New South Wales Court of Appeal in Donnellan v Woodland[16].In the Court of Appeal in this case, Macfarlan JA (with whom Leeming JA and Bergin CJ in Eq agreed) held that the decision in Donnellan extended to the circumstances of this case, and that the decision in Donnellan was not plainly wrong[17]. [16](2013) ANZ ConvR ¶13-001; [2012] NSWCA 433.[17]Kendirjian v Lepore [2015] NSWCA 132 at [28]. See also at [51] per Leeming JA. The decision of the Court of Appeal in Donnellan was an appeal from R S Hulme J[18]. That case concerned advice given by a solicitor, Mr Donnellan, to his former client, Mr Woodland, regarding proceedings to obtain a court-imposed drainage easement under s 88K of the Conveyancing Act 1919 (NSW). The easement proceedings failed and Mr Woodland was ordered to pay the costs of the Council, including on an indemnity basis from the date of one of the Council's offers of compromise. The allegations of negligence against Mr Donnellan included that he was negligent in relation to advice concerning offers to compromise the easement proceedings by the Council. The claim of negligence was upheld by the primary judge. [18]Woodland v Donnellan [2011] NSWSC 777. In the Court of Appeal in Donnellan, Beazley JA (with whom Barrett and Hoeben JJA and Sackville AJA agreed) allowed the appeal on the ground that Mr Donnellan had not been negligent. Nevertheless, their Honours also considered that even if Mr Donnellan had been negligent he would have had the benefit of the immunity. The reason given by Beazley JA was that the immunity would attach if the giving of advice, or the omission to give advice, led to a decision to continue with the case, or meant that the case was continued. The immunity was said to apply because the omission or conduct had affected the conduct of the case in court by requiring the case to continue[19]. [19]Donnellan v Woodland (2013) ANZ ConvR ¶13-001 at 35 [198].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL J, GAGELER J, KEANE J, NETTLE J, GORDON J, EDELMAN J

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