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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
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Legislative
Council |
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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LEGAL PRACTITIONERS, NEGLIGENCE CLAIMS
The Hon. IAN GILFILLAN: I seek leave to make an explanation before asking the Attorney-General a question about negligence claims against legal practitioners.
Leave granted.
The Hon. IAN GILFILLAN: Last weekend, the Attorney-General of Victoria, Mr Rob Hulls, announced his intention to pursue a change to a 200-year-old legal rule. Under the common law, it is not possible to sue either a barrister or a solicitor for any work intimately connected to court. That means that, predominantly, they are immune from negligence claims for their advocacy in the courtroom. In contrast, any other work done by legal practitioners on behalf of clients is potentially open to an action for negligence. The rationale for the rule is presumably to prevent an endless round of litigation from those who have lost a case and are dissatisfied with their barrister's performance in court.
Mr Hulls says that, in the main, barristers conduct their cases with the utmost professional care. However, in the Sunday Age of 22 October he states:
I find it unsatisfactory that such an immunity is unavailable to other professions and occupational groups. Putting barristers into a special category does have the potential to undermine confidence in the legal system.
The Sunday Age also reports that Australia is one of the last western countries to retain this immunity after Britain's House of Lords decided to end it last July. Mr Hulls is distributing a discussion paper ahead of a meeting of attorneys-general on 17 November and is hoping to get national support for this move. I ask the Attorney:
1. Has he or his department done any research on this issue since the House of Lords decision in July?
2. Will he and the South Australian government support this Victorian initiative? If not, will he support the alternative of putting a test case before the High Court?
The Hon. K.T. GRIFFIN (Attorney-General): My recollection of the Victorian situation is that the Victorian Attorney-General has published a discussion paper and that it is currently out for public comment. I have taken the view that we will look at that discussion paper and examine whatever responses are received to it but that we will not move quickly to jump on a bandwagon to amend the law relating to the liability of barristers.
It is fair to say that there is a view, at least in the United Kingdom and in some parts of Australia, that that immunity ought to be removed. I think the issue has been considered in South Australia by both Labor and Liberal governments over the past 20 or so years. On each occasion that it has been addressed a decision has been taken not to amend the law, very largely on the basis that, in the context of advocacy, quick decisions have to be taken in court.
When matters suddenly arise a line of questioning has to be developed in conjunction with the client, and if barristers were to be liable for negligence to their client for the decisions taken quickly on the spur of the moment, or even in the context of advice from the client, it might compromise the willingness of barristers to take decisions which they are of the view are in the best interests of their clients.
The Hon. Ian Gilfillan: A surgeon when operating has the same liability to act spontaneously.
The Hon. K.T. GRIFFIN: I am telling you what the position is in relation to barristers. It is a live issue: no-one is disputing that at all. I am telling you why, in relation to barristers, this immunity has developed and why it has been in place for well over 200 years. You do not rush in and change those rules just because suddenly an Attorney-General in Victoria, wishing to flex his muscles, decides to-
The Hon. Ian Gilfillan: What about the House of Lords?
The Hon. K.T. GRIFFIN: The House of Lords is a different situation. In Australia we are entitled to look at issues ourselves without having to rely on decisions which are taken overseas and which we then blindly have to follow. I have indicated to the honourable member-and I repeat it-that we are not rushing into a change. We will look at the publication in Victoria. Some consideration has been given to the United Kingdom position, but it is not something that will be resolved quickly. I am not going to indicate that we will rush in and support Victoria, nor am I going to indicate that we will support any test case. If someone wants to take a test case, we will deal with that issue at the time.
