Advocate's Immunity: What Makes Lawyers So Special?

Abstract

This paper will be directed to examine the nature of advocates' immunity in light of the recent High Court decision of D'Orta-Ekenaike v Victorian Legal Aid [2005]. This case upholds advocates' immunity from suit for work intimately connected with court proceedings. The proposed paper will explore the current extent of this immunity in Australia, canvassing the difficulties connected with ascertaining the extent of the immunity given that it is not a blanket immunity for lawyers in general. The paper will also take into account comparative perspectives from other professions, as well as considering advocates' immunity in overseas jurisdictions. Within this paper there will be a strong focus on the policy and social considerations relating to advocates' immunity that have been relied upon to justify the retention of this doctrine within Australia. The areas covered by this doctrine encompass topics such as professional negligence, social justice and litigation; however, this paper will be concerned only with the issue of professional negligence. The proposed paper will fit well within the ALTA Conference Theme 'One Law For All?', providing a timely consideration of whether there should be uniformity across professions as well as international jurisdictions with respect to advocates' immunity.