The Queensland Court of Appeal finds that advocate's immunity does not apply to pre-litigation procedures.

In Issue

  • Whether advocate’s immunity applied to work conducted in pre-litigation and litigation stages of personal injuries proceedings
  • Whether the plaintiff’s claim was a re-litigation abuse of process

The Background

Mr Rogers (the appellant) was injured in 2001 whilst riding as a passenger on a jet ski. In 2007, he was awarded damages in the sum of $593,708.46 against the operator of the resort where the accident occurred (“personal injuries proceedings”), including $480,000 for economic loss. Unsatisfied with his award for economic loss, Mr Rogers commenced proceedings against the solicitors that represented him in the personal injuries proceedings (the first and second respondents) and against the legal practitioner who handled his claim from March 2005 (the third respondent).

Mr Rogers claimed damages for breach of retainer and fiduciary duty and negligence. He alleged that the first and second respondents had secured their retainer on the basis that it would be performed by a specialist team of public liability lawyers when in fact they had delegated the performance of the retainer to another entity, Murshine Pty Ltd, which was not entitled to practise law in Queensland. The third respondent was an employee of Murshine Pty Ltd. The appellant argued that during the pre-litigation stage under the Personal Injuries Proceedings Act (“PIPA”), the respondents had failed to obtain certain evidence and expert report, causing his claim for economic loss to be inadequately prepared.

The Decision at Trial

The trial judge struck out the appellant’s claims for breach of retainer, negligence and breach of fiduciary duty on the basis that the proceedings were an abuse of process, which involved re-litigation of an issue determined in the personal injuries proceedings. The trial judge also held that the respondents were entitled to advocate’s immunity in respect of the claims and that this extended to allegations of negligence in the PIPA stage of the proceedings.

The Decision on Appeal

The Court of Appeal allowed the appeal and set aside the interlocutory orders of the trial judge. The court held that advocate’s immunity precluded the appellant’s claim only insofar as it relied upon allegations of wrongful conduct by the respondents in relation to the preparation of the appellant’s claim during the litigation stage. The court found that advocate’s immunity did not apply to the conduct of the first and second respondents in forming and continuing their retainer with Mr Rogers, as it did not have a direct or functional connection with the in court conduct of the personal injuries proceedings.

In reaching this decision, the court applied the test from the recent decision of the High Court in Attwells v Jackson Lailic Lawyers Pty Ltd [2016] HCA 16, namely, “whether that work was intimately connected with in court work, in the functional sense that the work affected both the conduct of the case in court and the resolution of the case by that court”.

The court rejected the respondents’ argument that the provisions of PIPA requiring pre-litigation settlement processes attracted the immunity. After considering the PIPA statutory scheme, the court noted that this was a situation where the claim for loss was caused by failure to properly prepare the claim, not one involving adverse orders made by the court for non-compliance with aspects of the PIPA process. Accordingly, there was no “intimate and functional connection” between the respondents’ work and the conduct of the case in court which attracted advocate’s immunity.

The court considered that, in determining whether there is a re-litigation abuse of process, it is necessary to examine the circumstances of each case. The court held that while all of Mr Rogers’ claims were collateral challenges to the personal injuries decision, they did not constitute a re-litigation abuse of process. Fraser JA noted that the mere fact that a person seeks to re-litigate an issue decided in earlier proceedings in which he or she was a party is not sufficient to constitute an abuse of process. The court held that, due to the wrongful conduct of the first and second respondents, Mr Rogers was deprived of a full opportunity of obtaining the entire amount of his economic loss. The court held that to prevent Mr Rogers from litigating this part of his claim would be more likely to bring the administration of justice into disrepute than any conflicting judicial decisions as to Mr Roger’s economic loss.

Implications for you

Whether work conducted by solicitors in the pre-litigation stages of the PIPA process will attract advocate’s immunity will depend on whether there is an “intimate and functional” connection between the work of the advocate and the conduct of the case in court. Unless such a connection can be proven, the immunity will not apply.