Court:Elias CJ, Gault, Keith, Tipping and Thomas JJ
Counsel:A C Challis for Chamberlains

P F A Woodhouse QC, P N Collins and D Webb for Sun Lai
R M Gapes and C Weaver for Hilda Lai
W M Wilson QC and C F Finlayson for New Zealand Law Society
J A Farmer QC, G M Coumbe and A Thorn for New Zealand Bar Association

Judgment:11 September 2006

JUDGMENT OF THE COURT

A.THE APPEAL IS DISMISSED.
B.The appellants must pay the respondents $30,000 in costs together with disbursements, to be fixed if necessary by the Registrar.

REASONS

Para No

Elias CJ, Gault and Keith JJ  [1]
Tipping J  [97]
Thomas J  [203]

ELIAS CJ, GAULT AND KEITH JJ
(Given by Elias CJ)
[1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided.[1] An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.
[1]Injury Prevention, Rehabilitation, and Compensation Act 2001, s 317(1).
[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies.[2] And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions,[3] often under the influence of developing international law.[4]
[2]Originally the Crown was immune from all legal proceedings: see Holdsworth A History of English Law (3 ed 1944), vol 9 at 8; De Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) at [4-038]. In New Zealand, see the Crown Proceedings Act 1950.
[3]State immunity in New Zealand continues to be a matter of common law. In the UK, the common law is now replaced by the State Immunity Act 1978. For modification by case law see, for example, Playa Larga v I Congreso del Partido [1983] 1 AC 244 (holding that the former absolute immunity was restricted where a state was engaged in trade); R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No 3) [2000] 1 AC 147 (holding that immunity for acts of torture did not survive ratification of the International Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment 1984).
[4]Such as the Vienna Convention on Diplomatic Relations 1961 (upon which the Diplomatic Privileges and Immunities Act 1968 (NZ) was based), general covenants such as the Convention against Torture (relied upon in

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.

Continue reading Lai v Chamberlains

Details

AGLC: Lai v Chamberlains [2006] NZSC 70
Case: [2006] NZSC 70
Decision Date: 11 September 2006

CaseChat Overview and Summary

In Lai v Chamberlains, the Supreme Court of New Zealand considered whether the common law immunity of barristers and solicitors from liability for negligence in respect of their conduct of litigation should be retained. The Court was asked to determine whether the immunity was justified in light of the public policy in vindication of legal right and the principles of finality in litigation. The Court was also asked to determine whether the immunity had been legislatively recognised through s 61 of the Law Practitioners Act 1982, which provides that “barristers of the Court shall have the powers, privileges, duties, and responsibilities that barristers have in England.” The Court was further asked to decide whether any change to the immunity should be left to Parliament. The Court concluded that the immunity should be abolished. It held that there was no adequate justification for the immunity other than to achieve finality in litigation, and that the need to promote finality in litigation did not provide justification for the immunity. The Court also held that s 61 of the Law Practitioners Act 1982 did not recognise the immunity. It held that the immunity had been wrongly adopted in New Zealand, and that it was not suitable for judicial determination because it entailed departure from long-settled authority. The Court rejected the argument that the immunity should be retained on the basis that it was a privilege of barristers within the meaning of s 61. It held that the “powers, privileges, duties, and responsibilities” of barristers could not be frozen at the date of the enactment of s 61 and that New Zealand courts could reconsider the immunity. The Court also rejected the argument that if the immunity was not upheld, the decision of the Court should be prospective only, allowing the immunity to be maintained by the firm in the present proceedings. It held that there was nothing in the case so exceptional that the decision should have only prospective effect. The Court held that the appeal should be dismissed with costs as proposed by the Chief Justice.

Orders