Part 1 - KENDIRJIAN V LEPORE [2017] Lucas Sall I Summary In 1999, a case was brought before NSW District Court, to assess the damages of a Mr Kendirjian whom had, as a result of a motor vehicle accident suffered injury, thus claiming damages via the Motor Accidents Compensation Act 1999 from a Mrs Ayoub. (Kendirjian v Ayoub) This claim, resulting in a settlement offer of $600’000 plus costs, was denied by the plaintiff, thus resulting in court proceedings. On assessment by the trial judge, Mr Kendirjian was awarded damages of $308,432.75 plus an additional $10’000 to assist with heavy lifting aid and home requirements. Mr Kendirjian, then sued the barrister and solicitor, for negligence in failing to present him with the original $600’000 …show more content…
settlement offer. Mr Kendirjian claimed that, both his Barrister and Solicitor failed to present the settlement offer correctly, stating to him that there was an offer, but not telling him the exact details of the offer, claiming further that his solicitor indicated it was ‘too low’ of an offer and thus they would proceed to court. The respondents successfully brought an application in the District Court for summary judgment, upon which the court held that the respondents were covered by advocates’ immunity. This decision was upheld by the Court of Appeal. Mr Kendirjian, years later and upon new case law (Atwells v Jackson Lalic Lawyers Pty Ltd [2016] ) (“Atwells”) applied to The High Court of Australia and was successful. II Stare Decisis The primary Stare Decisis within the case indicated by Edelman J and a majority within the court looked at the reasoning in Atwells, and decided that the facts could not be distinguished and thus the reasoning applicable in Atwells, was also relevant to the case of Kendirjian v Lepore.
(“Kendirjian”) Via this, the court also chose not to reopen the case of Atwells allowing the appeal and remitting the balance of the matter to the District Court of NSW. Edelman J rejected the respondent’s (Mr Conomos) central contention for distinguishing Attwells thus striking down the argument of the respondents. It seems that the High Court will be reluctant to depart from the decision made in Atwells. The decision in Kendijian resulted in a majority supporting Edelman J’s analysis and reasoning thus resulting in a joint judgement. In conclusion, the court found that in fact, Mr. Kendirjian had right to appeal, thus his appeal was accepted. Kendirjian confirms that the immunity still does not apply to settlements or matters in regard to settlements acknowledged out of court. Kendirjian and Atwells currently stand as the primary case law in Australia on the topic of Advocates Immunity and via the decision in Kendirjian, The High Court of Australia has affirmed its decision in Atwells, indicating that it will stick by its decision in future case …show more content…
law. Part 2 - ADVOCATES IMMUNITY IN AUSTRALIA Lucas Sall I Birth of Advocates Immunity The Doctrine of Advocates Immunity (“Advocates Immunity”) grants an anomalous exception to the general rule that each wrong deserves a remedy. Advocates Immunity reposed in the common law, gives rise to many questions within court, particularly in cases like Giannarelli v Wraith whereby it was decided that 'at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court.' Giannarelli was the first case to be recognised by the High Court of Australia, applicable to Advocates Immunity, which primary decisions lied concurrent to the House of Lords decisions within Rondel v Worsley and Saif Ali v Sydney Smith Mitchell & Co holding that both Barristers and Solicitors were immune from negligent cases being brought upon them. Giannarelli put into question the perpetuation of public policy protecting advocates immunity. It is largely recognised that Advocates Immunity is outdated and should be abolished, this view will be argued within the following essay. II What is Advocates Immunity and Is It Relevant? The current debate of Advocates Immunity concerns the immunity of legal practitioners within the area of civil claims against professional negligence of the practitioner. This includes acts or omissions, which may result in the client/party suffering a loss. This argument, until recently has been uncontested. In Australia, the doctrine of Advocates’ Immunity has been upheld by the courts except in one instance recently. In the case of Atwells, the court established that advocates immunity could only extend to advice that is intimately concerned with the conduct of the case in court. Atwells established that Advocate’s immunity from suit does not extend to negligent advice given by a lawyer, which leads to the settlement of a case by agreement between the parties. Prior to this decision, the case authority lied within Giannarelli and D'Orta-Ekenaike v Victoria Legal Aid which acknowledged advocates immunity as something that should be safeguarded as to close the floodgates of litigation (However, this is not so applicable, as experienced by the UK and US abolishment of Advocates Immunity this problem does not arise) and to protect our legal advocates. However, it can also be seen as protecting the personal interests of the advocates and thus, could be perceived by the general public as a way for advocates to avoid accountability, which in regard to the law is not a great concept. If the High Court chooses not to abolish the doctrine, they should be greatly persuaded to restrict the scope so that it is only relevant to the public policy reasoning against its abolishment. A Other Jurisdictions Australia is one of the only common law jurisdictions yet to abolish Advocates Immunity and thus socially and legally, is falling behind.
Kirby J notes this in D’Orta. Australia should follow suit and abolish Advocates Immunity. It shall be argued, that advocates immunity within common law countries is outdated and in need of change. As stated by The Melbourne University Law Review ‘the immunity is often perceived by commentators and the media as an anachronism that is out of step with modern tort law.’ The UK House of Lords recently altered its stance on advocates’ immunity by removing it altogether, using case law. (Arthur J S Hall & Co (a firm) v Simons ) As a modern and contemporary society, Australia should follow in the steps of the UK by abolishing the doctrine , whether that be via parliament or the judicature. The courts are currently limited by the doctrine and are thus unable to protect the rights and liberty of those who deserve remedies. The UK, being primarily of modernity in regard to their legal approach could be argued as quite different to Australia and thus in rebuttal to that position, one would argue even New Zealand, another Australasian country has moved towards and abolished Advocates Immunity. In the case of Chamberlains v Lai New Zealand’s highest court chose to abolish Advocates Immunity, thus moving New Zealand towards a more just and modernist
system. B Australia’s Reluctance for Change Typically, Australian courts have been reluctant in changing the law on Advocates’ Immunity. There has, however been a shift recently within the judiciary, particularly to the opinion of Justice Brennan, hinting in Giannarelli the doctrines demise by stating ‘If counsel generally were to fail to adhere to the standards of advocacy which the courts expect and on which they rely, there would be no justification for the immunity’. However, even with justification, there would need to be a majority within The High Court for this to occur, unless the legislative branch were to legislate upon the change. As Brennan J has highlighted, the justification for Advocates Immunity is already limited and as further cases on the topic arise, the possibility of the courts moving towards abolishment increases. C Advocates Duty One major problem often argued in favour of Advocates Immunity is that the advocate has a larger duty to the court and the general public, than the client. This often justifies the perpetuation of the doctrine. Highlighted in the reasoning behind Giannarelli: Chief Justice Mason justified advocates' immunity on two grounds: advocates are unique in owing a duty not only to their clients but also to the court; and there would be adverse consequences to the administration of justice if collateral proceedings were allowed in order to determine whether there had been negligence in the principal proceedings. However, it shall be argued, that clients have the right to remedies whereby their representation is negligent and that, if the lawyers’ duty to the court were frustrated, the judiciary would direct any jury or misinterpretation to the correct one. D Re-litigation of Disputes Often the public also argues that abolishing the doctrine could lead to the re-litigation of disputes. However, Kirby J argues in D'Orta that if there were to be a case between a party and their previous representation, it would be based upon different facts, with completely different parties. Indicating to the court via dissent, that Mr. D’Orta didn’t want to reopen his first case, but simply wanted to see if he had a claim against the advocate in negligence. Unfavourable for members of the Barristers Association, a move towards this abolishment would consequently extend the fairness and just application of the law deserved by clients affected by negligent advocates. The argument of re-litigation of proceedings is thus stricken down.
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
“Reviewed all of the arguments in favor of the immunity, and demolished them so completely as to change the whole course of the law. It has been followed by a deluge of decisions holding that there is no immunity at all, and that a charity is liable for its torts to the same extent as any other defendant.” (Prosser on Torts, 3d Ed., 1964,p
Conversely, experience in the Sydney Supreme Court involved prolonged hearings sighting judges and lawyers dressed in wigs and robes. Interestingly, due to the comprehensive nature of cases, suitcases were used to transport files. With decisions declaratory and representative of Australian law, the Supreme Court bestows solemn attention to detail. The emphasis for strict adherence to the due process of law is essential in ensuring judicial legitimacy. The clear distinction between tiers ensures the accessibility and efficiency of courts which mounts to the achievement of justice.
Rice, S (2011) ‘Reflections on reforming discrimination laws in Australia’, Human Rights law Centre, viewed 4 October 2011, .
...f] Queensland: Queensland Law Reform Commission. pp. 2 - 20. Available through: QLD Government http://www.qlrc.qld.gov.au/wpapers/wp37.pdf [Accessed: 2 Mar 2014].
This essay will examine the main cause of the demise of the derivative claim which is the possibility of pursuing a corporate relief and even costs via an unfair prejudice petition, a relief and order that was initially only available via derivative action. Further this essay will discuss as to how the boundaries between the statutory derivative action and the unfair prejudice should be drawn and what restrictions should be added to the unfair prejudice remedy under section 994 of the Companies Act 2006 so that the significance of the statutory derivative action can be reinstated.
Australia's current legal system does not acknowledge or identify individuals right due to the present protection of individual rights from Australia's Constitution, common law and legislation, which have been established through the Commonwealth or State Parliaments, contrasting to the US system with a Bill of Rights. Individuals have the right to vote, the right to a trial, freedom of religion and the forbidding of discrimination. Additionally, in relation to criminal
In order to understand the Australian judicial system’s changing perspectives towards case management, it is important to look at two particular cases. The first is Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, which will be referred to as the J L Holdings case. This is a significant case because it established how Australian courts initially approached pre-trial procedures and the administration of justice in civil procedure. The dispute between Queensland and J L Holdings had proceeded to the High Court because their original trial judge had refused Queensland to amend their defence and Queensland’s successful appeal, pleading that such a refusal would prejudice their argument, had allowed for the determination that the amendment should have been granted on the justification that courts should always prioritise the achievement of justice over the implementation of case management principles (Boniface & Legg 2010). The key point to take away from this case that is relevant is that this appeal had set a precedent that prioritised justice over any consideration for any consequence of delay or expense. However, this approach would soon be overturned in the case of Aon Risk Services
That said, we still need to ask does the Victorian Charter of Human Rights comply with Australia’s international agreements. Specifically, does it provide adequate protection for human rights and does it remedy subsequent breaches? In this essay, I will answer this question. To achieve this, I will first identify and review the preamble and principles of the charter and outline the preliminary section of the charter. I will investigate the definition of a ‘Public Authority’ and outline the importance of the exclusions under this section. I will then focus on the primary mechanism in the charter, the statements...
Lord Bingham of Cornhill, ‘The Rule of Law’, November 2006, Sixth Sir David Williams Lecture, Centre for Public Law, University of Cambridge
Press Release, Judgment of the Court of Justice in Case C-84/94, United Kingdom v Council, 12 November 1996.
Rackley, E (2010). In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary. Public Law
The adversarial system in Australia includes five central features to support in the equality and justice of the system. The conduct of the litigation both prior to and during the trial is left substantially in the hands of the parties; Evidence is generally elicited by a procedure whereby each party in turn calls witnesses whom it questions and who are then cross-examined by the other party with a view to discrediting or casting doubt on the accuracy or relevance of their testimony; The role of the judge is to preside and to act as a form of umpire rather than to take any active part in the selection or questioning of witnesses; The judicial function is designed to be concentrated into one continuous hearing; and, Compliance with the rules of court is, in general, enforced only at the request of one of the parties.
in Australia." Journal Of Law And Society 37.1 (2010): 85-104. Wiley Online Library. Web. 3 Feb. 2014.
‘Judicial independence is the priceless possession of any country under the rule of law’ and the Australian judicial system is currently failing in the establishment and maintenance of independence and impartiality as a defining characteristic of all of the courts. While federal jurisdictions are protected under s 72 of the Australian Constitution, state jurisdictions require equal structural safeguards so that the implicit influence of the Executive branch does not impede on judicial application of the rule of law.