Case note: Kenderjian v Lepore [2015] NSWCA 132

Facts

On 21 November 1999 Mr David Kendirjian, the applicant, was injured when a vehicle in which he was travelling collided with a vehicle driven by Ms Cheree Ayoub.

In 2004 Mr Eugene Lepore, a solicitor and the first respondent, commenced District Court proceedings on Mr Kendirjian’s behalf against Ms Ayoub. Ms Ayoub admitted liability and a five day hearing on the quantum of Mr Kendirjian’s loss was fixed to commence on 30 August 2006 before Delaney DCJ. Mr Lepore briefed a barrister, the second respondent, to appear for Mr Kendirjian.

On the first day of the hearing, and after some earlier negotiations, Ms Ayoub’s legal representatives made an offer to settle the proceedings for $600,000 plus costs. That offer was not accepted.

On 13 October 2006 Delaney DCJ delivered a judgment awarding Mr Kendirjian $308,432.75 in damages.

The Supreme Court of NSW dismissed an appeal on 14 August 2008.1 McColl JA (with the concurrence of Beazley JA, as her Honour then was) observed that Mr Kendirjian’s credibility had been ‘at the heart of the issues’ determined by Delaney DCJ and that his Honour had found that Mr Kendirjian ‘had exaggerated or misstated the extent of his medical condition’ and made strong findings adverse to Mr Kendirjian’s credit.2

Mr Kendirjian commenced proceedings against his solicitor and his barrister in October 2012, alleging they did not advise him of the amount of the settlement offer made on the first day of trial ‘but merely of the fact that an offer had been made’and that they rejected the offer ‘absent any express instructions from [Mr Kendirjian]’, but based upon the advice of the barrister ‘that the offer made was too low’. Essentially, the allegation was that the respondents told Mr Kenderjian that an offer had been made but did not give proper advice as to the amount of damages that he was likely to receive if the hearing proceeded.

He claimed the difference between the settlement offer and the judgment as damages caused by the respondents’ negligence.

On 16 May 2014, P Taylor SC DCJ ordered that the proceedings be summarily dismissed on the basis that the respondents were immune from suit under the advocate’s immunity principle stated in D’Orta-Ekenaike v Victorian Legal Aid[2005] HCA 12; 223 CLR 1.

Mr Kendirjian sought to appeal that decision.

Issues

Whether the respondents’ alleged out of court conduct in relation to the settlement offer was sufficiently connected with the District Court hearing before Delaney DCJ to fall within the ambit of advocate’s immunity as described in D’Orta-Ekenaike.

Decision

In the leading judgment, Macfarlan JA described the immunity principle as follows:3

‘The decision in D’Orta-Ekenaike confirmed that an advocate is immune from suit, whether for negligence or otherwise, not only in respect of the conduct of a case in court, but also in respect of ‘work done out of court which leads to a decision affecting the conduct of the case in court’ (quoting Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at 560 per Mason CJ) or ‘work intimately connected with’ work in a court (D’Orta-Ekenaike [86]). The plurality, in whose judgment these statements of principle appear, did not consider that the statements in respect of out of court work differed in any significant way.’

His Honour reiterated the point that the justification for the doctrine of advocate’s immunity is based on the fundamental need for finality in the administration of justice and to avoid re-litigation of matters litigated in previous proceedings.

He held that the effect of the pronouncement in D’Orta-Ekenaike (which he was bound to follow) was that the immunity principle applies to work done out of court which leads to a decision affecting the conduct of the case in court and to work intimately connected with work in a court, and that both formulations sufficiently cover cases such as this where the alleged negligence was the failure to properly advise in relation to acceptance of a settlement offer which led to a party continuing with court proceedings, in particular where a court hearing was in progress.

His Honour also accepted4 as correct the observation of Beazley JA (as she then was, with whom Barrett and Hoeban JJA and Sackville AJA agreed in Donnellan v Woodland [2012] NSWCA 433) that:

‘The question is not when the advice was given, but whether the advice given led to a decision affecting the conduct of a case in court. As McHugh J stated, the giving of advice is an integral part of an advocates’ role. 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 because of that omission, such conduct would lead to a decision affecting the conduct of the case in court, namely, its continuance by way of full argument before a judge’.

It therefore remains a well settled law that advocate’s immunity applies to advice regarding settlement including advice leading to a case not being settled, which affects the conduct of a case in court.