The High Court of Australia has decided the issue of counsel’s liability for negligence differently from the New Zealand Court of Appeal (see last blog entry): D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005). The majority of 6 judges (only Kirby J dissented) held that the fundamental justification for a barrister’s immunity is the need for finality in judicial determinations.
The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ, at para 84, highlighted the need to provide the best and safest system of determination that is compatible with human frailty. (Contrast, the standard of excellence referred to by Hammond J in Lei v Chamberlains.) McHugh J, concurring, stressed the professional consequences of misconduct and the duties owed by the barrister to the court. Callinan J, also concurring, noted that the common law tends to change incrementally, and it would be undesirable to make barristers liable for not pursuing apparently weak points on appeal just because of the possibility of a change in the law. Further, it would be unfair to continue protecting judicial error if barristers’ protection were to go. Kirby J dissented, fundamentally because other jurisdictions did not consider they needed to retain the immunity.
Plainly, when the New Zealand Supreme Court considers the matter, the desirability of our law being consistent with that of Australia will be an influential consideration.
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