June 2014
Practice Group(s):
Litigation & Dispute
Resolution
Claim Against Solicitors Summarily Dismissed by
Reason of Advocate's Immunity
By Lucy Williams
Advocate's immunity is a valuable defence for solicitors and barristers preventing the relitigation of disputes by disgruntled litigants. The recent decision of Stillman v
Rushbourne [2014] NSWSC, in which we acted for the solicitor defendant, provides
assistance in understanding when a solicitor's conduct will be immune from suit and
when an application for the disposal of proceedings on the basis of immunity can, and
should, be made.
Overview
Justice Davies summarily dismissed a claim in negligence against defendant solicitors on
the grounds that their conduct was immune from suit, under the doctrine of advocate's
immunity.
The court considered and found that:
 advising in relation to settlement and conduct at mediation in the initial proceedings
was work done leading to the conduct of the case in court and came within the
immunity
 coercion of a client, or other proscribed behaviour, does not take the matter outside
the scope of the immunity
 it was appropriate to deal with the application of the immunity in the negligence
proceedings in advance of the trial and on a summary disposal basis.
Factual Background
The plaintiff and his company instructed the defendants, a firm of solicitors (Solicitors), to
act on their behalf in the defence of proceedings that commenced against them for rental
charges for mining equipment (Initial Proceedings). The Initial Proceedings were settled
at mediation. The plaintiff and his company defaulted on the settlement terms and
judgment was entered against them. The plaintiff commenced further proceedings
against his solicitors (Negligence Proceedings), alleging that in the Initial Proceedings the
Solicitors failed to adequately advise in relation to the settlement and coerced him to
enter into a settlement agreement that was excessively disadvantageous, having regard
to the defences available.
Application of Immunity to Settlement Conduct
The Solicitors brought an application for the Negligence Proceedings to be dismissed on
the basis that their allegedly negligent conduct falls within advocate's immunity – and the
plaintiff did not have a reasonable cause of action against them. The application was
successful and the Negligence Proceedings were dismissed with costs.
Claim Against Solicitors Summarily Dismissed by Reason of
Advocate's Immunity
Immunity Applies to Advice to Settle and Conduct of Mediation
Justice Davies considered whether the doctrine of advocate's immunity was applicable to
the Solicitors' advice to settle and the conduct of the defendant solicitors at the mediation
in the Initial Proceedings.
Justice Davies set out that Donnellan v Woodland [2012] NSWCA 433 makes it clear
that:
 advice leading to settlement is work which leads to the conduct of the case in court –
because the party agrees to the disposition of the proceedings on the basis of the
settlement and the result is a final judgment
 the fact that the advice was given prior to the hearing, at mediation, is irrelevant if the
result is the disposal of the proceedings.
The conduct complained of in relation to the settlement was work leading to the conduct
of the case in court and fell within the immunity.
No Exception to Immunity for Intentional or Coercive Behaviour
The plaintiff alleged that the Solicitors coerced him to accept the disadvantageous
settlement terms offered. Justice Davies rejected the plaintiff's argument that proscribed
behaviour, such as coercion of a client, falls outside the immunity. The application is
determined by the substance of the wrong done and not by how it is characterised.
Determination on Strike out Application
Justice Davies also considered whether it was appropriate to determine the application of
advocate's immunity in the Negligence Proceedings prior to trial on a summary basis.
The plaintiff asserted that it was necessary for the court to know and understand the
whole factual matrix before making a determination, and that would not be clear until the
final hearing. Justice Davies rejected this reasoning in this case. The present case
concerned clear and confined allegations, all of which concerned conduct coming within
the immunity. The plaintiff was not able to point to any other facts or issues about which
evidence might be adduced at trial which would take the matter outside the immunity.
His Honour took the plaintiff's allegations at their highest and found the:
 conduct complained of fell within the immunity
 plaintiff does not have a reasonable cause of action against the defendants.
The Negligence Proceedings against the Solicitors were dismissed and the plaintiff was
ordered to pay the costs of the proceedings.
Author:
Lucy Williams
lucy.williams@klgates.com
+61.2.9513.2487
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Claim Against Solicitors Summarily Dismissed by Reason of
Advocate's Immunity
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