Another High Court day of shame

Richard Ackland discusses yet another appalling High Court decision in his SMH column this morning. It isn’t quite as breathtakingly repugnant as last year’s Al-Khateb decision where a strong numerical majority held that it was perfectly lawful for the federal government to hold asylum seekers in indefinite “administrative detention”, even where they remained in Australia through no fault of their own, but it’s bad enough.

In D’Orta-Ekenaike v Victoria Legal Aid (handed down yesterday), an even stronger majority with Kirby J the sole noble dissentient, opted not to re-open the existing 1988 authority of Giannarelli v Wraith, which had preserved barristers’ immunity from civil suit for negligence for actions taken during or immediately surrounding a civil or criminal trial.

As Ackland points out, Australia is just about the last part of the common law world to continue clinging to this archaic and self-serving (for lawyers) doctrine. The High Court doesn’t seem to have any problem upholding the right to sue doctors or dentists or accountants or engineers. But lawyers? Oh no no no! The justice system would grind to a halt if they were held to the same standards of accountability for their actions as every other profession.

So why hasn’t it ground to a halt in the US where the immunity from suit doesn’t exist? Or in Britain or New Zealand where the judges did have the guts to abolish it? Or in Canada where at least a single judge decision has also struck down the immunity?

I can’t actually think of much to add to Ackland’s excellent article, except a string of adjectives like disgraceful, arrogant, self-serving, cynical, obtuse, unaccountable and downright disgusting. It’s another one of those days when I’m ashamed to be a lawyer.

Actually, I can think of something to add. Why don’t the state and territory Labor governments band together and enact co-ordinated legislation to abolish lawyers’ immunity from suit? You wouldn’t hold your breath waiting for the Howard government to enact similar laws, but 90% or so of litigation takes place under state law anyway. It would put pressure on Howard, and would be bound to be highly popular with the electorate. Write to your local State or Territory MP today and demand it.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Mark Bahnisch
2022 years ago

I was hoping you’d blog about this Ken, because I was really pissed off by reading the report in the paper. Someone or other was quoted as saying it was a “victory for the administration of justice”. For the life of me, I can’t work out how. Sounds like it’s a victory for barristers’ self-interest.

Kirby J was on the mark in his judgement, I think.

flute
2022 years ago

But as it was Kirby who was the dissenter, I’ll expect to see a Devine or Albrectsen piece about it within the next week.

Mark Bahnisch
2022 years ago

Just don’t mention the ABC!

Michael Warby
2022 years ago

So, we are agreed that a Bill of Rights giving more power to judges is a bad idea?

Mark Bahnisch
2022 years ago

Nope. Provided it’s not a bill of rights for barristers only.

Ken Parish
Ken Parish
2022 years ago

Michael

You’ll probably get an argument from others on this topic, but not from me. In fact I even wrote an article about it for Online Opinion in 2001. See http://www.onlineopinion.com.au/view.asp?article=1263 . The only qualification I’d put on it is that I laid considerable stress on the role of the Senate as a house of review and effective check and balance on majoritarian tyranny, given the unlikelihood of government control. Of course, that unlikelihood is about to come to pass.

Nevertheless, as a convinced democrat (and a federalist unlike John Howard) I’m forced to accept (albeit with trepidation) that a government which wins a strong majority for 2 elections running, and hence gets control of the Senate, is democratically entitled to enact its mandate. If it goes further, however, and abuses its mandate by enacting laws for which it had no such imprimatur, it ought to be punished by the peple at th succeeding election.

Nicholas Gruen
2022 years ago

Ken, great suggestion. A few weeks ago I asked people to poat ideas regarding what the ALP state governments could band together to do. Its strange that the Coalition having the HoR and Senate sown up is such big news and the possibilities inherent in the same party holding state govts seems to go unremarked. If anyone here would like to see the list on Quiggin’s blog its here (Quiggin’s blog or my software is playing up – I’ll post the link in a subsequent post.) But can I ask anyone who reads this to make whatever suggestions they can think of – and perhaps might those who run Troppo enable me to make a guest post to give the issue a little more prominence.

Ken Parish
Ken Parish
2022 years ago

Nicholas

We’d love to have a guest post from you on this. Just email me at ken.parishATcdu.edu.au . Please send the article in plain text (not MS Word or html) with any desired hyperlinks adjacent to the text to be displayed as the link.

Nicholas Gruen
2022 years ago

The link to the Quiggin website that my above post relates to is http://johnquiggin.com/index.php/archives/2005/02/28/monday-message-board/#comments

And by the way guys, Troppos software’s promise to ‘remember my personal info’ doesn’t seem to work. I keep putting it in, keep saying ‘yes’ remember and it forgets.

Reminds me of a joke. Why do elephants drink? To forget.

C.L.
2022 years ago

Ken, I’m reading law and might be donning the wig eventually. (If they’re still around). What has been the classic argument in favour of this protective measure, does it have any merit at all? Why is it now unacceptable in your view?

Just curious.

qm
qm
2022 years ago

The only real argument which sustains this rule according to the decision is that it is in the interests of the administration of justice for the immunity to remain.

The argument goes like this – there is effectively a separate arm of power in our system which is the administration of criminal and civil justice. This process is so important to the effectiveness of the legislature/executive/judiciary separation of powers that any threat to that immunity will make the system grind to a halt.

Ken is right, there is no good argument in favour of it except for convention and history. The pressure was on the High Court because it is so blatantly unsupportable and it has now been overturned just about everywhere else.

John Morhall
John Morhall
2022 years ago

This decision seems totally bereft of logic, particular as I must pay an indecent amount for my P and I insurance premium each year to protect my rear end, just to ultimately feed in the main those who remain from immune such exposure themselves. Bah humbug!

Ken Parish
Ken Parish
2022 years ago

CL

In my view anyway, the key argument against a Bill of Rights is the one Michael Warby put, that it places excessive power into the hands of unelected judges who aren’t democratically accountable (at least directly).

The key argument in favour is that it’s an essential check on the “tyranny of the majority”, as famously enunciated by JS Mill in On Liberty:

“The ‘people’ who exercise the power, are not always the same people with those over whom it is exercised, and the ‘self-government’ spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; “

Jacques Chester
Jacques Chester
2022 years ago

“I argue that the existing extent of express and implied rights, allied with the High Court’s constitutional supervisory jurisdiction over the executive government and the restraining influence of the Senate…”

I could be mischievous and say that with some matches, a piece of gum and a rubber band, McGuyver can build an aeroplane, but wouldn’t you rather have something made of steel by Boeing?

C.L.
2022 years ago

Thanks Ken but I was referring to barristers’ immunity from civil suit. : )

I thought the fear has always been that without it every Tom, Dick and Harry would start bringing vexatious suits against barristers when their cases and defences failed.

Isn’t this concern legitimate?

Ken Parish
Ken Parish
2022 years ago

CL

But that hasn’t happened to any significant extent in places that don’t have the rule or have abolished it. “Floodgates” arguments are usually nonsense, because there are substantial barriers to litigation, not least the costs risk. And most disappointed litigants have already been bled substantially by legal costs. They’re only likely to embark on a second round if they assess they have a strong case. The argument really isn’t any different to that surrounding any litigation.

So, to answer your question, the finality argument together with the supposed need for courtroom advocates to make fine, “split-second” judgments, are the principal arguments that have traditionally been raised. But the latter is hardly compelling either, given that surgeons make split-second life and death decisions and yet are liable in negligence

There’s also the proposition that barristers owe duties to the court and the administration of justice as well as to their client, as Mason CJ put it in Giannarelli v Wraith:

“The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.

It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice.”

Kirby J deals effectively with that argument IMO in yesterday’s decision:

“The arguments in support of the immunity, based on the suggested role of the legal practitioner in private (or equivalent to private) practice in the governmental functions of administering justice, are as unconvincing to me as they were to all of their Lordships in the House of Lords. The supposed analogy to the immunity afforded to judges, jurors and prosecutors breaks down under a moment’s examination. None of these persons owes any duty of care to a litigant. Lawyers, such as the barrister and the solicitor in this case, owe such a duty. Furthermore, the barrister’s “divided loyalty” to client and court does not support the existence of the immunity, as it is difficult to see how negligence could be found where a barrister has simply complied with a duty to the court.”

Lastly, it’s sometimes argued that barristers should be immune from suit because they can’t sue for their fees. However, the practitioner here was a solicitor so that argument is irrelevant, and with there being a “fused” profession now in many parts of Australia (everyone is both a barrister and solicitor) that justification must be regarded as moribund. In any event, even in places where the barrister-solicitor distinction is starkly maintained, the fact that barristers can’t sue in no sense reduces their ability to make sure they get paid. A solicitor who fails to pay a barrister (at least for a very long time) will end up (a) on a disciplinary charge before the Law Society; and (b) unable to find barristers prepared to accept a brief from him/her. So this too is a spurious argument.

C.L.
2022 years ago

Interesting. Thanks Ken.

The only weakness to a (still) layman’s eye, however, would seem to revolve around the assertion by Kirby J that “none of these persons [ie. judges, jurors and prosecutors] owes any duty of care to a litigant.”

Could that be right? I would have thought they indeed owe some kind of duty of care to litigants. Not direct or personal but tangential.

If so, wouldn’t that be comparable to the tangential and vicarious nature of barristers’ roles – vis-a-vis the administration of justice – which advocates of the status quo argue and which Kirby J rejects.

Might not, then, Kirby J be arguing prejudicially for the continuation of a rarefied safety zone for “judges, jurors and prosecutors” while selling the dump to barristers?

[Forgive the amateurishness Prof].

TrueRWDB
TrueRWDB
2022 years ago

But, CL, there are remedies on appeal against Judges and Prosecutors, and in some circumstances, Jurors. Anyway the case concerned a defending lawyer, not the former worthies.

Like Ken, Mark and the majority of commenters, I found this decision shocking and outrageous. It’s very rare for me to find myself in agreement with Kirby’s reasoning for a dissenting judgement, and even rarer for me to agree with Ackland. What I found offensive was the spurious logic of the majority judges. Unfairness I can live with (through gritted teeth), as I’ve come to expect it in the law.

It really proves the thriving existence of “legal creativity” (a concept Ken actually defended in a post during his early blogging days) – a concept strongly supported by Kirby and condemned by Hayden, one of the majority. I suppose you could argue in this case that the majority were not being creative, merely “defending” the status-quo.

“The Australian” asserted in this morning’s editorial that it would need a “legal hammer” to intervene successfully to change the law in this situation. It would have to be a powerful machine-driven hammer indeed, as I have no doubt that this High Court would find plenty of illogical “creative” reasons for overturning such presumptuous legislation, no doubt resorting to spurious “separation of powers” concepts.

Ken Parish
Ken Parish
2022 years ago

CL

RWDB has dealt with your question. In addition “duty of care” is being used as a term of art, to describe a legal duty that reuslts in a liability for damages if breached. A litigant cannot sue the judge, jurors or prosecutor (or witnesses) under any circumstances i.e. no legal “duty of care” exists. That isn’t to say they don’t all owe duties to society and the state to faithfully contribute to the administration of justice , nor that breaches aren’t punishable in other ways (e.g. contempt of court, dismissal for judicial misconduct etc). But, as Kirby persuasively observes, the existence of a more general duty in a litigant’s lawyer to uphold the administration of justice doesn’t conflict with his also being held to have a “duty of care” to his client (enforceable by damages), just like all other professionals, because “it is difficult to see how negligence could be found where a barrister has simply complied with a duty to the court”.

C.L.
2022 years ago

Thanks RWDB & Ken. Yes, those observations answer my questions. The court’s decision does look pretty archaic.