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The recent decision of D'Orta-Ekenaike v Victorian Legal Aid and Another came as a surprise to some, who expected that Australia would follow suit and abolish advocates' immunity as the House of Lords did in Arthur J S Hall & Co v Simons, and more recently, as the New Zealand Court of Appeal did in Chamberlains v Lai. However, the majority of the High Court, with only Kirby J dissenting, determined that the immunity was to remain in Australia. In the media, there was much criticism of this decision, with members of the public and the profession questioning the joint majority's rationale for retaining the immunity. Whilst the decision in D'Orta-Ekenaike raises several important issues, including the scope of the immunity post-Giannarelli v Wraith, as well as the difficulties of proving causation in lawyer negligence claims, this brief case note will concentrate upon the main justification for the retention of the immunity, that is, the 'finality' principle. |
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