Kendirjian v Lepore

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.