HIGH COURT OF AUSTRALIA
KIEFEL CJ
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJDAVID 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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- Kendirjian v Lepore [2017] HCA 13
- Case
- [2017] HCA 13
- Decision Date
CaseChat Overview and Summary
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
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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