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[2016] HCA 16
appellant. Appeal allowed. Orders 3, 4 and 5 of the Court of Appeal set aside and in lieu thereof the appeal allowed, orders of Harrison J set aside, and the separate question answered 'No'. Orders of the...
The High Court decided that a lawyer's immunity from being sued for bad advice does not cover giving negligent advice that leads a client to settle a court case on poor terms, even if the settlement is written into formal court consent orders. The immunity only kicks in for work that directly feeds into a judge actually deciding who wins and loses a dispute. Here, the bad advice created a private deal between the parties (consent to a big judgment but with a side promise not to enforce it if a smaller sum was paid on time), which the court just noted rather than decided on the merits. So the clients can still sue their lawyers for the bad advice. The Court refused to scrap the immunity entirely but made clear it is narrowly tied to protecting final court rulings from being indirectly challenged.
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5 cited instruments linked from this judgment.
3,230 words · generated 24/04/2026
In June 2010, Australia and New Zealand Banking Group Limited and its receivers commenced proceedings in the Supreme Court of New South Wales against Wilbidgee Beef Pty Limited and its guarantors, Gregory Ian Attwells and Barbara Jane Lord. The guarantors' liability was limited to $1.5 million plus interest and enforcement costs. By the opening of the trial before Rein J, the bank had certified the guaranteed debt at $1,856,122. On the first day of the hearing, senior counsel for the guarantors negotiated a settlement. The terms required the guarantors and the company to consent to judgment in the full amount of the company's indebtedness ($3,399,347.67) while the bank agreed not to enforce that judgment provided the guarantors paid $1.75 million by 19 November 2010. These terms were reflected in a consent order for judgment in the larger sum, with the court noting the conditional non-enforcement agreement (which was not itself the subject of an order).
Later that afternoon, Faris Shehabi of Jackson Lalic Lawyers Pty Limited (the respondent) advised Mr Attwells and Ms Lord to sign the consent orders. The advice was that if they defaulted on the $1.75 million payment, "it would not make any difference if the judgment in favour of the bank was for $3,399,347.67 or any other sum". The guarantors signed. The orders were entered the following day. When the guarantors failed to pay by the due date, the bank was free to enforce the full judgment. An application to set the settlement aside as an unenforceable penalty was dismissed by Pembroke J.
Mr Attwells (later joined by his bankruptcy trustee's assignee) sued Jackson Lalic Lawyers for negligence. The statement of claim alleged that the respondent was negligent in advising the guarantors to consent to judgment for a sum far exceeding their liability under the guarantee, in failing to advise that the guaranteed debt was only $1,856,122, in failing to advise that no binding settlement existed unless the terms were signed, and in failing to advise on alternatives such as a counter-offer limited to the guaranteed sum or resumption of the hearing. By consent, Schmidt J ordered a separate determination under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) of whether the advocate's immunity provided a complete defence. The parties proceeded on a statement of agreed facts that assumed the allegations of negligence and causation were established solely for the purpose of the separate question.
Harrison J declined to answer the separate question, expressing concern that he could only do so on a hypothetical basis without further evidence. The Court of Appeal (Bathurst CJ, Meagher and Ward JJA) granted leave, answered the question adversely to the appellants, held that the advice was "intimately connected with the conduct of the guarantee proceedings", and entered judgment for the respondent. The Court of Appeal reasoned that the negligence proceedings would require re-agitation of issues determined in the guarantee proceedings, thereby offending the principle of finality. Special leave was granted to appeal to the High Court. The Law Society of New South Wales intervened.
The majority (French CJ, Kiefel, Bell, Gageler and Keane JJ) allowed the appeal. Nettle J and Gordon J each wrote separate reasons dismissing the appeal, holding that the immunity did apply because the consent order constituted a judicial determination that quelled the controversy.
The majority grounded its decision in the authoritative test stated in Giannarelli v Wraith and confirmed in D'Orta-Ekenaike v Victoria Legal Aid: the immunity extends to "work done in court or work done out of court which leads to a decision affecting the conduct of the case in court" or work "intimately connected with" work in a court. That test is not satisfied by advice that leads merely to a voluntary settlement agreement. The majority emphasised that the immunity's rationale is not a general concern to bring disputes to an end, nor a desire to encourage settlements, but the specific public policy of protecting the finality and certainty of judicial determinations reached by the exercise of judicial power from collateral attack.
The joint judgment repeatedly returns to the plurality in D'Orta, which identified the "central justification" as the principle that "controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances". This reflects the judicial branch's role in the government of society. A claim that "but for the advocate's conduct, there would have been a different result" is objectionable precisely because the consequences complained of flow from a lawful judicial result lawfully reached. Accordingly, the "intimate connection" required is functional, not merely historical: the advocate's work must bear upon the judge's determination of the case.
In the present matter, the respondent's advice led to an agreement that created "a new charter of rights" between the parties. The guarantors' liability under that charter was "distinctly not their liability under the guarantee". The consent order recorded a verdict and judgment for $3.4 million but the court made no finding of fact or law resolving the underlying controversy. The collateral agreement (noted but not ordered) simply deferred enforcement. Because no exercise of judicial power determined the terms or resolved the dispute on its merits, the advice could not be said to have moved the litigation toward a judicial determination. The negligence claim did not seek to impugn the consent orders themselves but used the undisputed guaranteed liability to measure loss. There was therefore no collateral attack on a judicial determination.
The majority rejected the respondent's anomaly argument (that immunity for advice not to settle but not for advice to settle would discourage frank settlement advice). Advice not to settle has no bearing on how the case is conducted before the judge or on the shape of the judicial determination; the subsequent negligence action would focus on the reasonableness of the advice given at the time, not on whether the court's decision was wrong. The public policy favouring settlement cannot expand the immunity, whose incidental effect of reducing lawyer accountability is a price paid only to protect judicial finality, not to promote out-of-court resolutions.
The fact that the settlement was embodied in consent orders did not alter the analysis. Citing Newcrest Mining Ltd v Thornton, the majority observed that a consent order does not impute any finding to the court. Chamberlain v Deputy Commissioner of Taxation was distinguished: that case concerned merger of a cause of action in a judgment, not whether a subsequent negligence claim collaterally attacks the judicial resolution of a dispute. Here, the substantive content of the parties' new agreement was fixed by them, not by any exercise of judicial power. Cases requiring judicial approval of settlements (representative proceedings, compromises on behalf of persons under incapacity, native title agreements, etc) were noted but not decided.
Nettle J and Gordon J dissented on the basis that the consent order itself was the judicial determination. Once the court made orders by consent that fixed the parties' rights and liabilities (including judgment for $3.4 million enforceable on default), any claim that the advice to consent was negligent necessarily involves asserting that the court should not have made, or that the order was wrong. That, they said, is the very re-litigation D'Orta forbids. Gordon J emphasised that entry of verdict and judgment by consent is as much an exercise of judicial power as judgment after trial; the rights merged in the final, binding order. Both dissenting judgments therefore concluded the immunity applied and the appeal should be dismissed.
The majority's view prevailed. The orders set aside the Court of Appeal's decision, answered the separate question "No", and awarded costs against the respondent and the intervener.
Before Attwells, the law was settled by Giannarelli v Wraith (1988) 165 CLR 543 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. Giannarelli held that the immunity covers out-of-court work that "leads to a decision affecting the conduct of the case in court", drawing the line at work "so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing" (per Mason CJ, approving McCarthy P in Rees v Sinclair). D'Orta confirmed that test, applied it to a solicitor, and rooted the immunity in the finality of judicial determinations. Both decisions emphasised that the immunity is an incident of the judicial process as an arm of government and rejected the "chilling effect" rationale as insufficient.
Other common-law jurisdictions had moved away from the immunity (Arthur J S Hall & Co v Simons in the United Kingdom, Lai v Chamberlains in New Zealand), but the High Court in D'Orta expressly declined to follow them, citing the imminent Human Rights Act 1998 (UK) and the different weight given to finality in Australia. The New Zealand Court of Appeal in Biggar v McLeod had taken an expansive view that advice on compromise is inherent in the conduct of the cause; the majority in Attwells observed that this expansive approach had helped justify abolition in that country.
After Attwells, the immunity remains part of Australian common law but its boundaries are more clearly confined. The test is unchanged, yet the Court has made plain that a merely historical or "but for" connection to the end of litigation is insufficient. Advice that produces a consensual resolution, even if crystallised in consent orders that do not involve the court resolving disputed issues on the merits, falls outside the immunity. The decisions in Giannarelli and D'Orta were not overruled; the Court reiterated the "strongly conservative cautionary principle" of stare decisis and the danger of disturbing settled expectations. The law after Attwells therefore draws a sharper distinction between work that contributes to a judicial quelling of controversy and work that facilitates party agreement. The immunity continues to protect against collateral attacks on the correctness of judicial decisions but does not shield negligent settlement advice that does not affect the exercise of judicial power.
Section 90 of the Civil Procedure Act 2005 (NSW) and rr 36.1 and 36.1A of the Uniform Civil Procedure Rules 2005 (NSW) continue to authorise consent judgments, but Attwells confirms that the entry of such a judgment does not automatically engage the immunity if the underlying resolution was consensual rather than judicial.
The joint judgment contains several pivotal statements. At the outset the majority said: "the authoritative test for the application of the immunity stated in D'Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute." In plain English, this means the old test still stands but settlement advice simply does not meet it. The required link is functional, not casual.
Later: "the intimate connection required to attract the immunity is a functional connection between the advocate's work and the judge's decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. Both D'Orta and Giannarelli were concerned with claims which impugned a judicial determination to which the allegedly negligent work of the advocate contributed." Translation: it is not enough that the advice happened during litigation or caused the case to end; the advice must have shaped how the judge decided the case. The immunity exists to stop people challenging the judge's ruling, not to stop people challenging their own decision to settle.
On the policy foundation the Court repeated the D'Orta plurality: "the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society." In everyday language, once a judge has finally ruled, society needs to treat that ruling as conclusive so the legal system can move on; letting disappointed clients sue their lawyers for every lost case would keep re-opening old fights.
Dealing with consent orders the majority observed: "a consent order may, by the rules of the court, be given the same legal effect as an order made after a hearing in the court. That does not impute any finding to the court." Plain English: just because the court stamps a piece of paper "judgment by consent" does not mean the judge has decided who was right or wrong on the facts or the law. The parties decided; the court merely recorded their deal. Therefore the immunity, which protects the judge's decision, is not engaged.
The majority's rejection of the anomaly argument is also critical: "advice not to settle a case does not itself affect the judicial determination of a case." Translation: telling a client "don't take the offer, let's fight" does not tell the judge how to run the trial or what to decide. A later negligence suit would ask whether that advice was reasonable at the time, not whether the judge was wrong. The immunity is therefore not needed in that situation either.
Attwells is triggered when a client sues a lawyer for allegedly negligent advice that caused the client to enter an out-of-court settlement (whether or not embodied in consent orders) and the lawyer pleads the advocate's immunity. The precedent applies whenever the settlement creates a new consensual charter of rights rather than flowing from a judicial resolution of disputed issues on the merits. Typical triggers include:
The precedent does not apply where the lawyer's work actually shapes the conduct of the case before the judge in a way that affects the judicial outcome (for example, negligent advice to plead guilty in criminal proceedings, or negligent conduct of a trial that produces an adverse judgment on the merits). It also does not disturb the immunity for advice not to settle that leads to an adverse judicial determination, although the majority expressed scepticism that such advice could ever be "intimately connected" in the required functional sense. Claims that would require the court to find that a judicial decision was wrong remain barred. The fact that litigation is on foot when the agreement is made is irrelevant if the agreement is voluntary and does not rest on a judicial determination.
The joint judgment itself treated Giannarelli and D'Orta as correctly decided and binding, declining to overrule them on stare decisis grounds while clarifying their scope. It distinguished Biggar v McLeod as an overly expansive New Zealand view that had helped justify abolition there, and distinguished Chamberlain on the basis that merger of a cause of action in a judgment does not convert a consensual settlement into a judicial resolution of disputed issues. The dissenting judgments of Nettle J and Gordon J treated the same authorities as requiring the immunity to apply to consent orders that fix rights and liabilities, illustrating that reasonable minds can differ on the application of the "intimately connected" test when a consent order is entered.
Because Attwells is a relatively recent decision of the High Court, the source text does not contain later Australian cases applying it. However, the reasoning makes clear that subsequent courts must focus on whether the lawyer's work contributed to an exercise of judicial power that quelled a controversy, rather than merely facilitated a party compromise. The judgment's emphasis on the distinction between orders that embody judicial determinations and notations that record agreements has narrowed the zone in which immunity can be claimed in settlement contexts. The Court also reaffirmed that the immunity is not to be enlarged simply because expansion might encourage settlement advice; the policy is confined to finality of judicial decisions. Later courts are therefore directed to examine the precise character of the consent order or notation and whether any judicial power was exercised to resolve disputed questions of fact or law.
Several questions remain unresolved by the Attwells majority. First, the precise boundary between a consent order that records a true judicial determination and one that merely notes a party agreement is not exhaustively mapped. The majority acknowledged that in some classes of case (representative proceedings, compromises for persons under incapacity, native title agreements, patent amendments, certain corporate compromises) judicial approval is required and issues must be resolved by the exercise of judicial power; whether the immunity would apply to negligent advice in those contexts was expressly left open.
Second, the status of advice not to accept an offer of compromise that leads to an adverse judgment on the merits is not finally settled. The majority doubted that such advice could ever affect the judicial determination in the required functional way, yet Nettle J considered that a subsequent negligence action would necessitate re-litigation of the strength of the plaintiff's case, credibility issues, and the application of law to facts, thereby engaging the finality policy. Lower courts will need to grapple with that tension.
Third, the interaction between the immunity and statutory regimes that permit or require court approval of settlements remains unexplored. The majority noted but did not decide those cases.
Fourth, the degree of "opacity" on negligence and causation acknowledged by the appellants' senior counsel in argument leaves open whether, on a full hearing, the appellants' claim would succeed on the merits. The separate-question procedure assumed the facts pleaded, but the majority noted that if the claim's weakness had been clear, the Court might have declined to answer the question at all. Future cases may test the utility of separate questions in immunity disputes where the underlying negligence case appears tenuous.
Finally, the judgment leaves untouched the question whether the immunity attaches only to decisions a lawyer may make without specific client instructions. The majority found it unnecessary to decide that point, observing that negligent advice to plead guilty (as in D'Orta) does affect the judicial outcome because the court must be satisfied the plea is free and the timing affects sentence. The exact scope of "decisions affecting the conduct of the case in court" therefore retains some flexibility for later development.
These open questions ensure that Attwells, while clarifying the core limit on settlement advice, will continue to generate litigation at the margins of the immunity doctrine. Practising lawyers must still advise clients with one eye on the possibility that frank settlement recommendations may expose them to suit, while carefully documenting the functional connection (or lack of it) between their advice and any eventual judicial act.
FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 4 May 2016 S161/2015
(b) the orders of Harrison J made on 17 October 2013 be set aside, and in their place order that the separate question of whether the plaintiffs' claim is defeated entirely, because the defendant is immune from suit, be answered: "No".
On appeal from the Supreme Court of New South Wales
G O'L Reynolds SC with R C A Higgins, R A Yezerski and D W Robertson for the appellants (instructed by L C Muriniti & Associates)
A S Bell SC with P D Herzfeld for the respondent (instructed by Sparke Helmore Lawyers)
R P L Lancaster SC with N J Owens for the Law Society of New South Wales, intervening (instructed by Allens)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Legal practitioners - Negligence - Advocate's immunity from suit - Advice given out of court - Where advice given by advocate led to agreed settlement of proceedings - Where terms of settlement reflected in consent orders made by court and court's noting of agreement - Where negligence proceedings issued in respect of advice - Whether advocate immune from suit.
High Court - Stare decisis - Whether D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered.
Words and phrases - "advocate's immunity", "collateral attack", "consent orders", "finality", "intimately connected", "judicial determination", "judicial power", "statement of agreed facts".
Civil Procedure Act 2005 (NSW), ss 90, 133(1). Uniform Civil Procedure Rules 2005 (NSW), Pt 36.
FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ. In these proceedings, the appellants claim that earlier litigation to enforce a guarantee was settled on terms unfavourable to the first appellant as a result of the negligent advice of the respondent, his solicitor at the time. The respondent has raised the advocate's immunity from suit as a complete answer to the appellants' claim. The respondent contends that the advocate's immunity extends not only to negligent advice which leads to a final judicial determination, but also to negligent advice which leads to an agreed settlement. The advocate's immunity In D'Orta‑Ekenaike v Victoria Legal Aid, this Court held that the advocate's immunity from suit under the common law of Australia in respect of his or her participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in court. In reaching that conclusion, the Court declined to reconsider its earlier decision in Giannarelli v Wraith, in which it was held that the advocate's immunity extends to "work done out of court which leads to a decision affecting the conduct of the case in court." That extension of the scope of the immunity was justified by the view that, as Mason CJ said: "it would be artificial in the extreme to draw the line at the courtroom door." But the immunity was not extended to all work in any way connected to litigation. Mason CJ explained: "Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said: '… the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.'" This statement of the scope of the immunity by Mason CJ was confirmed in D'Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity: "there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or … 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way.)" The issue The present case raises the question whether the immunity extends to negligent advice which leads to the settlement of a case by agreement between the parties. The appellants contend that D'Orta does not support that extension. In the alternative, they argue that the immunity should be abolished. The abolition of the immunity would require this Court to overrule its decisions in D'Orta and Giannarelli. For the reasons which follow, the appellants' argument in this regard should be rejected. On the other hand, the appellants' argument as to the scope of the immunity should be accepted. The authoritative test for the application of the immunity stated in D'Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute. No doubt an advice to cease litigating which leads to a settlement is connected in a general sense to the litigation which is compromised by the agreement. But the intimate connection required to attract the immunity is a functional connection between the advocate's work and the judge's decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. Both D'Orta and Giannarelli were concerned with claims which impugned a judicial determination to which the allegedly negligent work of the advocate contributed. As will be seen from a closer consideration of the reasoning in D'Orta, the public policy, protective of finality, which justifies the immunity at the same time limits its scope so that its protection can only be invoked where the advocate's work has contributed to the judicial determination of the litigation. In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties' agreement was embodied in consent orders. The guarantee proceedings The first appellant and Ms Barbara Jane Lord ("the guarantors") guaranteed payment of the liabilities of a company to a bank. Ms Lord is not a party to the present litigation. The second appellant is a party to the current proceedings by virtue of an assignment to him by the first appellant's trustee in bankruptcy of the first appellant's rights against the respondent. The company defaulted on its obligations to the bank, and the bank commenced proceedings against the company and the guarantors ("the guarantee proceedings"). In April 2010, the guarantors and the company retained the respondent to advise and act for them in relation to the guarantee proceedings. The action came on for trial before Rein J in the Supreme Court of New South Wales. The amount of the company's indebtedness to the bank was almost $3.4 million. That debt was secured by various securities given by the company in favour of the bank. The guarantors' liability under the guarantee was limited to $1.5 million. On the opening day of the trial, the bank certified that the total amount owing under the guarantee, including interest and enforcement costs, was $1,856,122. Later that day, counsel for the guarantors informed the Court that the proceedings had been settled on terms to the effect that judgment would be entered against the guarantors and the company for the full amount of the company's indebtedness to the bank, being $3.4 million, and the bank would not seek to enforce the order for payment of that amount if the guarantors paid to the bank the sum of $1.75 million on or before 19 November 2010, a date approximately five months after the settlement. Those terms were reflected in a consent order for judgment in the amount of $3.4 million made by the Court and the Court's noting of the conditional non‑enforcement agreement between the parties, which was not itself embodied or reflected in an order of the Court. In the event, the guarantors failed to meet their initial payment obligation. A subsequent attempt to set aside the settlement as an unenforceable penalty was dismissed. The appellants then issued proceedings in the Supreme Court of New South Wales against the respondent alleging that it was negligent in advising the guarantors to consent to judgment being entered against them in the terms of the consent orders, and in failing to advise them as to the effect of the consent orders ("the negligence proceedings"). The current proceedings Upon the application of the respondent pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), and with the consent of the first appellant, Schmidt J ordered that the question whether the respondent is immune from suit by virtue of the advocate's immunity be determined separately from the other issues in the negligence proceedings. The parties agreed to a document, described as "Proposed Agreed Facts" but treated as a statement of agreed facts by the parties and the courts below, as the basis on which the determination of the question should proceed. The decision of the primary judge Before the primary judge (Harrison J), the appellants argued that they did not seek to impugn the consent orders. On the contrary, it was said that the consent orders were relied upon to calculate the amount of their loss, being the difference between the undisputed amount for which the guarantors were liable under the guarantee and the amount of the judgment, in the form of the consent orders, entered against them. The appellants argued that, in these circumstances, the finality of the judgment in the guarantee proceedings was not impugned and, accordingly, their claim was beyond the scope of the immunity. The primary judge rejected that argument, holding that the appellants did, in truth, seek to assert that "the judgment that was entered against [the guarantors was] not an accurate reflection or measure of their liability to the bank." The primary judge said: "[T]he plaintiffs in [the negligence proceedings] will be asserting that the judgment in [the guarantee proceedings] is wrong and does not represent [the guarantors'] genuine liability to the bank, whereas the defendants will be asserting that the judgment in [the guarantee proceedings] is correct and by force of that judgment unquestionably establishes [the guarantors'] actual legal liability to the bank." Nevertheless, his Honour declined to answer the separate question. His Honour was concerned that, without further evidence in relation to the respondent's alleged negligence, he could only form a view about the application of the advocate's immunity on a hypothetical basis. The decision of the Court of Appeal The Court of Appeal (Bathurst CJ, Meagher and Ward JJA) granted leave to appeal, and held that the primary judge erred in declining to answer the separate question. Their Honours then proceeded to answer that question adversely to the appellants. The Court of Appeal held that the respondent's advice was within the immunity recognised in Giannarelli as "work done in court or work done out of court which leads to a decision affecting the conduct of the case in court." Bathurst CJ, with whom Meagher and Ward JJA agreed, said: "In the present case, in my opinion, the work fell within categories of work done out of court affecting the conduct of the case in court. The alleged breach occurred in advising on settlement of the guarantee proceedings … The advice … led to the case being settled. Put another way it was intimately connected with the conduct of the guarantee proceedings." The Court of Appeal concluded that the negligence proceedings would necessarily involve a re‑agitation of the issues determined in the guarantee proceedings; and a reconsideration of those issues in order to determine whether the respondent had been negligent would offend the principle of finality. Accordingly, the respondent was immune from suit, and judgment was entered for the respondent in the proceedings. The appellants appealed to this Court pursuant to a grant of special leave. In this Court, the Law Society of New South Wales ("the Law Society") sought leave to intervene. That leave was granted on the condition that the Law Society pay the costs of the parties occasioned by the intervention. The agreed facts As already noted, the hearing before the primary judge proceeded on the basis of a statement of agreed facts. These reflected the allegations of fact, including the negligence of the respondent, set out in the statement of claim. It appears clear that they were "agreed" in the sense that the separate question was to be determined on the assumption, made only for the purposes of that determination, that they were established. If the procedure for determination of a separate question is to be useful, it is necessary for those managing the case at the stage when a question is posed for separate determination to ensure that the facts on which the question is to proceed are "the facts … which the [plaintiff] will seek to establish at trial." If the parties are unable to state facts which, if found, will lead to a judgment in the plaintiff's favour, doubts as to the utility of the determination of the proposed separate question may lead a court to decline an application to determine that question separately. In the present case, as appeared from the terms of the statement of agreed facts upon which the separate question was posed for resolution, it must be said, as the appellants' Senior Counsel acknowledged in argument in this Court, that "there is a measure of opacity … on the issues of negligence and causation" in the appellants' claim. The agreed facts stated that the respondent advised the guarantors to sign the consent order containing the terms of settlement "because, if they defaulted in payment of the sum of $1,750,000 by 19 November 2010, it would not make any difference if the judgment in favour of the bank was for $3,399,347.67 or any other sum ('the advice')." The statement of agreed facts then asserted, among other things, that the respondent was negligent: (i) in giving the advice when the guarantors did not have a liability to the bank for $3,399,347 or anything like that sum; (ii) in failing to advise the guarantors that if they defaulted in payment of the sum of $1,750,000 by 19 November 2010, there would be a judgment against them for $1,543,225 more than the guaranteed amount of $1,856,122; and (iii) in failing to advise the guarantors that no legally binding settlement came into existence unless the terms of settlement were signed, and that there were alternatives that they could pursue, including making a counteroffer reflecting the guaranteed sum of $1,856,122 in lieu of $3,399,347 and, failing acceptance of that offer by the bank, resuming the hearing. There is a tension between the appellants' contention that the respondent was negligent in failing to advise the guarantors that they did not have a liability to the bank for $3,399,347 and the advice which, it is an agreed fact, was given. The statement of agreed facts asserted that the fact of a liability to the bank under the settlement for $3,399,347 was expressly adverted to before the guarantors signed the consent order. The terms of the advice which is alleged to have been given to the guarantors clearly assumed the disparity between the larger liability which would arise in the event of default in payment on 19 November 2010, and the guarantors' liability under the guarantee. It also appears to be the case that the advice was not advice to the guarantors as to their liability under their guarantee. The consent orders and associated agreement appear, on their face, to have created a new charter of rights between the parties. The liability which the guarantors assumed under that new charter was distinctly not their liability under the guarantee. If the guarantors met their liability under the guarantee within the extended time for which the settlement agreement provided, they would be released from all liability to the bank. In return for extra time to pay their true debt, the guarantors agreed to consent to a judgment for the total indebtedness of the company with a collateral agreement that the judgment would not be enforced should the amount they owed under the guarantee be paid within that extended time. That having been said, the appeal to this Court is concerned solely with whether the advocate's immunity is, as the respondent contends, a separate and complete answer to the appellants' claim. This Court has not been invited to hold that the weakness of the appellants' claim on the issues of negligence and causation of loss is so clear that there is no utility in deciding the issue presented for determination. The decision of the Court of Appeal, while it stands, precludes any investigation of the strengths and weaknesses of the appellants' claim. The issue as to the effect of the immunity was raised by the respondent, and, the issue having been decided by the Court of Appeal in the respondent's favour as a complete answer to the appellants' claim, should be decided by this Court. Reconsidering Giannarelli and D'Orta The appellants submitted that this Court should exercise its undoubted authority to reconsider its previous decisions in Giannarelli and D'Orta. The appellants argued that the decisions in Giannarelli and D'Orta do not rest upon a principle carefully worked out from the authorities. The appellants also argued that the judgments in D'Orta left the scope of the immunity unclear, and that there is such a degree of inconsistency between the immunity and its rationale that this Court should follow other common law systems and abolish the immunity. The decision whether to reconsider Giannarelli and D'Orta must be made in light of the "grave danger of a want of continuity in the interpretation of the law." The decision must be informed by "a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law". To overturn Giannarelli and D'Orta would generate a legitimate sense of injustice in those who have not pursued claims or have compromised or lost cases by reference to the state of the law as settled by these authorities during the years when they have stood as authoritative statements of the law. An alteration of the law of this kind is best left to the legislature. It must also be said that the questions agitated here as to the rationale for the immunity and its scope were fully argued in Giannarelli and D'Orta. No argument of principle or public policy was advanced by the appellants which had not been addressed in Giannarelli and D'Orta. It is true that, since the decision in Giannarelli, courts in other legal systems have come to a different view as to how competing considerations of principle and policy should be resolved, but those decisions do not reveal an insight into any issue of principle or policy that was not appreciated in Giannarelli and D'Orta. More importantly, the decision in D'Orta states a rule which is consistent with, and limited by, a rationale which reflects the strong value attached to the certainty and finality of the resolution of disputes by the judicial organ of the State. To explain why that is so, it is necessary to consider more closely the reasons given by the plurality for their decision in D'Orta. The decision in D'Orta In D'Orta, the plurality noted that the immunity as stated in Giannarelli was consistent with the decisions of the House of Lords in Rondel v Worsley and Saif Ali v Sydney Mitchell & Co and with the reasons said in those decisions to underpin the immunity. The plurality noted that the House of Lords had reconsidered its earlier decisions in Arthur J S Hall & Co v Simons and observed that this alteration of the common law might be understood in the light of the "then imminent coming into operation of the Human Rights Act 1998 (UK)". The plurality also discussed the state of the law in other common law jurisdictions. The plurality, in considering the reasons advanced to support the immunity, referred to the "chilling" effect of the threat of legal action upon advocates and the consequent prolongation of trials. The prospect of such a chilling effect was not thought to "provide support in principle for [the] existence" of the immunity. In their Honours' view, in the search for the true rationale of the immunity, "[c]hief attention must be given to the nature of the judicial process and the role that the advocate plays in it." Their Honours referred to the various reasons for the immunity discussed in Giannarelli, and said: "Of the various factors advanced to justify the immunity, 'the adverse consequences for the administration of justice which would flow from the re‑litigation in collateral proceedings for negligence of issues determined in the principal proceedings' (emphasis added) was held to be determinative." The plurality in D'Orta accepted that the rationale of the immunity was rooted in the role of the advocate engaged, as an officer of the court, in the exercise by the court of judicial power to quell a controversy, and went on to emphasise the binding nature of judicial decision‑making as an aspect of the government of society. Their Honours said: "[T]he central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question … No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed." To speak of the exercise of judicial power to quell controversies as an aspect of government is to make it clear that the immunity is not justified by a general concern that disputes should be brought to an end, but by the specific concern that once a controversy has been finally resolved by the exercise of the judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong. Their Honours said: "[T]he central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society." Their Honours explained that, where a final order has been made resolving litigation, a claim that "but for the advocate's conduct, there would have been a different result" is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are "consequences flowing from … a lawful result … lawfully reached." The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully. This review of the reasons of the plurality in D'Orta is sufficient to demonstrate that, contrary to the appellants' argument for abolition, there is a clear basis in principle for the existence of the immunity. As to the soundness of the decision in point of authority, the statement of the common law immunity in D'Orta (and Giannarelli) reflects what had been established as the law in the United Kingdom before the change wrought by the decision of the House of Lords in Arthur J S Hall v Simons. The common law of Australia, as expounded in D'Orta and Giannarelli, reflects the priority accorded by this Court to the values of certainty and finality in the administration of justice as it affects the public life of the community. The foregoing is a sufficient basis to reject the appellants' invitation to reconsider the decisions in D'Orta and Giannarelli. At the same time, however, this review of the reasons of the plurality in D'Orta, and the identification of the public policy on which the immunity is based, serve to show that the scope of the immunity for which D'Orta and Giannarelli stand is confined to conduct of the advocate which contributes to a judicial determination. Extending the immunity to compromises It is apparent from the passages set out above from D'Orta that it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attracts the immunity. Because that is so, the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court. In particular, the immunity does not extend to advice that leads to a settlement agreed between the parties. As McHugh J said in D'Orta: "[I]t is possible to sue a practitioner for the negligent settlement of proceedings or for the negligent loss or abandonment of a cause of action … even though there is a public interest in the finality achieved through the statutes of limitations and the promotion of out-of-court dispute settlement. But where a trial has taken place, as the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ demonstrates, public confidence in the administration of justice is likely to be impaired by the re‑litigation in a negligence action of issues already judicially determined." While the plurality in D'Orta did not state explicitly that advice leading to an out of court settlement was outside the scope of the immunity, it is apparent on a fair reading of their Honours' reasons that the rationale of the immunity does not extend to advice which does not move the case in court toward a judicial determination. The respondent relied upon the decision of the Court of Appeal of New Zealand in Biggar v McLeod to support the contention that the immunity does extend to an agreed settlement of proceedings after a hearing has commenced. In that case, it was said that: "The giving of advice as to the compromise of proceedings, involving as it does the question of their continuation or termination, is an inherent feature of the conduct of the cause by counsel." But to say that is not to identify conduct by counsel which affects the judicial determination of the case. This expansive view of the scope of the immunity was expressed by a court in New Zealand before the immunity was abolished in that country by the decision of the Supreme Court of New Zealand in Lai v Chamberlains. It may be observed, with the greatest respect, that by allowing an expansive view of the scope of the immunity so that its operation was wider than was "absolutely necessary in the interests of the administration of justice", the decision in Biggar v McLeod effectively strengthened the case for the abolition of the immunity in New Zealand. To accept that the immunity extends to advice which leads to a settlement of litigation is to decouple the immunity from the protection of the exercise of judicial power against collateral attack. Such an extension undermines the notion of equality before the law by enlarging the circumstances in which lawyers may be unaccountable to their clients. The appellants argued that the immunity is confined to those decisions which a lawyer may make in the conduct of a case without the specific instructions of the client. In response to that argument, the respondent drew attention to the conclusion by the plurality in D'Orta: "Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision (here the client's decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account." The respondent sought to argue that this statement shows that advice by a lawyer which leads to a decision by a client is within the scope of the immunity. So much may be accepted, to the extent that such advice affects the judicial determination of the proceedings. But negligent advice to plead guilty, as had been allegedly given in D'Orta, when accepted by the client, does affect the determination of the case by the court. The court cannot proceed to conclude its function until a conviction is recorded. In D'Orta, McHugh J explained: "A decision about a plea of guilty cannot be described other than as intimately connected with the conduct of a criminal cause. It is a decision made preliminary to the hearing of a charge which affects the conduct of the accused's matter before the court. … The connection of a plea of guilty at committal with the conduct of a criminal matter is intimately connected with the hearing of that matter because the timing of the plea affects the sentence imposed, in particular, whether the plea was entered at the first reasonable opportunity." In addition, the judicial function is squarely engaged in determining whether to accept a plea of guilty. A court may not accept the plea of guilty unless it is satisfied that it is freely made by the accused. For present purposes, however, it is not necessary to determine whether the immunity attaches only to the kinds of decision which a lawyer charged with the conduct of a case in court may make without instructions from the client. It is sufficient to conclude that the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings. Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the "intimate connection" between the advocate's work and "the conduct of the case in court" must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an "intimate connection" between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate's work and the client's loss; rather, it is concerned only with work by the advocate that bears upon the judge's determination of the case. An anomaly? The respondent argued that it would be anomalous to hold that the immunity does not extend to advice which leads to a disadvantageous compromise but does extend to negligent advice not to compromise which leads to a judicial decision less beneficial to the client than a rejected offer of compromise. It was argued that in each case the advice is intimately connected with the proceedings. Further, it was said that to differentiate between these cases may discourage lawyers from giving frank advice in favour of settlement because settlement itself would put them outside the zone of immunity. The Law Society supported this argument, emphasising that public policy favours the settlement of litigation. The assumption on which the respondent's argument depends, that is, that negligent advice not to settle is "intimately connected" with the ensuing judicial decision of the court so as to attract the immunity, is not sound. The respondent cited no authority in support of this assumption. That is not surprising, given that it is difficult to envisage how advice not to settle a case could ever have any bearing on how the case would thereafter be conducted in court, much less how such advice could shape the judicial determination of the case. The respondent's assumption depends on the view that a merely historical connection between the advice and the outcome of the case, in the sense that one event precedes another as a necessary condition of its occurrence, is the intimate connection on which Giannarelli and D'Orta insist. As has been said, it is a functional connection between the work of the advocate and the determination of the case by the court which is necessary to engage the immunity. Just as it is true to say that advice to settle is "connected" to the case in the sense that the advice will, if accepted, lead to the end of the case, so it is true to say that advice not to settle a case is "connected" to the case in the sense that the advice will, if accepted, lead to the continuation of the case. But to say either of these things is to speak of a merely historical connection between events. That is to fail to observe the functional nature of the intimate connection required by the public policy which sustains the immunity. The insufficiency of a mere historical connection between an advocate's work and a litigious event may be illustrated by reference to negligent advice to commence proceedings which are doomed to fail. No one suggests that the immunity is available in such a case. Likewise, advice to cease litigating or to continue litigating does not itself affect the judicial determination of a case. The respondent argued that where a client has accepted advice not to settle a claim and the matter proceeds to a judgment which is less advantageous for the client than the rejected offer it could be expected that the legal adviser when sued would be disposed to defend himself or herself by arguing that the judgment was wrong and his or her advice was right. That submission is not accepted. It is difficult to conceive of any circumstance in which the correctness of the court's decision would be put in issue. The central question would not be whether the court was right or wrong, but whether the advice was reasonable in all the circumstances known to the adviser at the time the advice was given. Secondly, if the judgment were erroneous, one would expect that this would be demonstrated on appeal; and if the error cannot be demonstrated on appeal from the record of proceedings in court in the earlier case, that would tend to confirm that the negligent advice had nothing to do with the judgment reached by the court. As to the argument advanced by the Law Society, the immunity is not attracted simply because its existence might encourage lawyers to advise their clients to settle their claims. While it is no doubt true that there is a public interest in the resolution of disputes, the public policy which justifies the immunity is not concerned with the desirability or otherwise of settlements, but with the finality and certainty of judicial decisions. Decisions by the courts, as the judicial organ of the State, are necessary precisely because the parties cannot achieve a compromise of their disputes. The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity. Because this incidental operation of the immunity comes at the expense of equality before the law, the inroad of the immunity upon this important aspect of the rule of law is not to be expanded simply because some social purpose, other than ensuring the certainty and finality of decisions, might arguably be advanced thereby. Accordingly, it should be accepted that in the present case there was no occasion for the operation of the immunity in relation to advice which led to the settlement of the guarantee proceedings on terms disadvantageous to the guarantors. That said, the question which now must be addressed is whether the circumstance that the settlement was embodied in consent orders was sufficient to attract the operation of the immunity. The consent order The respondent argued that a judgment that reflects a compromise reached by consent is no less effective to quell a controversy than if it followed a contested hearing. It was said to be important in this regard to recognise that the parties' antecedent rights merged in the consent judgment. In Newcrest Mining Ltd v Thornton, French CJ said that although a consent order may, by the rules of the court, be given the same legal effect as an order made after a hearing in the court, "[t]hat does not impute any finding to the court." Here, the primary judge made no finding of fact or law which resolved the controversy between the parties. And the circumstance that the appellants' claim against the respondent relates, not to the resolution of the issues which arose in the guarantee proceedings, but to the terms of a new charter of rights between the parties to those proceedings, also tends to confirm that this is so. For the respondent, reliance was placed on the decision of this Court in Chamberlain v Deputy Commissioner of Taxation in support of an argument that the negligence proceedings involved an impermissible attack on a judgment of a court because the settlement agreement had merged in the consent order so that the appellants' claim impugned a subsisting decision of a court. In Chamberlain, the settlement in question was, in terms: "By Consent … Judgment for the Plaintiff in the sum of $25,557.92 together with costs to be assessed and agreed at $115.00. … The settlement monies to be paid by the Defendant to the Plaintiff forthwith." The judgment which was entered in that case recited that the terms of settlement had been filed and "adjudged" accordingly that "the Plaintiff recover against the Defendant the sum of $25,557.92 for debt and $115.00 for costs." When the plaintiff discovered that the amount for which judgment had been entered was less than the amount actually due, and brought an action to recover the balance, this Court held that the action was not maintainable on the footing that the cause of action upon which the plaintiff relied had merged in the judgment of the court "thereby destroying its independent existence so long as that judgment stood." The decision in Chamberlain does not assist the respondent. The present case is not concerned with whether the bank's original cause of action had merged in the judgment of the court, or even with whether the bank's rights under the settlement agreement had merged in the consent order of the court. Whether or not the settlement agreement has a legal existence independent of the consent order, such as for the purposes of its enforcement, has nothing to do with the substantive content of the rights and obligations established by it. The substantive content of those rights and obligations was determined by the parties without any determination by the court. The public policy which sustains the immunity is not offended by recognising the indisputable fact that the terms of the settlement agreement, by reason of which the appellants claim to have been damaged, were not, in any way, the result of the exercise of judicial power. The respondent also argued that cases involving settlements may involve a collateral challenge to judicial conduct because, in some cases where a case is resolved by settlement, the judge is required to be satisfied that the orders should be made. It may be acknowledged that there are many cases where, although the parties have agreed upon the terms of the order which a court is asked to make, the making of the order itself requires the resolution of issues by the exercise of judicial power. Examples include where representative proceedings are settled, or where proceedings on behalf of a person under a legal incapacity are to be compromised, or where agreements are made in relation to proceedings under ss 86F, 87 and 87A of the Native Title Act 1993 (Cth). Other examples include the exercise of the judicial discretion to allow an agreement to amend a patent granted under the Patents Act 1900 (Cth), and the compromise of certain debts under ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth). It is not necessary to consider such cases here. In the present case, the consent order and associated notation by the Court reflected an agreement of the parties for the payment of money in circumstances where no exercise of judicial power determined the terms of the agreement or gave it effect as resolving the dispute. The consent order may have facilitated the enforcement of the compromise, but it was the agreement of the parties that settled its terms. Orders The following orders should be made.
NETTLE J. I have had the advantage of reading the reasons for judgment of Gordon J and I agree with her Honour for the reasons she gives that the appeal should be dismissed. I wish to add something concerning the reasoning of the majority. As the majority observe, on a fair reading of D'Orta-Ekenaike v Victoria Legal Aid, it may be said that the rationale of an advocate's immunity from suit does not extend to advice unless it is advice which "move[s] the case in court toward a judicial determination". Contrary to the majority's reasoning, however, it does not follow that the immunity may not apply to advice to settle a proceeding or to advice not to settle a proceeding. The purpose of the advocate's immunity is to avoid the re‑litigation in collateral proceedings for negligence, or other civil cause of action, of issues determined in the principal proceedings. As Gordon J explains, it is based in policy that a controversy should not be re-opened by a collateral attack which seeks to demonstrate that a judicial determination was wrong. Where, therefore, a final order has been made resolving litigation, a claim that, but for an advocate's conduct, there would have been a different result is necessarily objectionable. When a matter is settled wholly out of court, the settlement does not move the litigation toward a determination by the court. Consequently, advice to enter into such a settlement does not attract the immunity. But where a matter is settled out of court on terms providing for the court to make an order by consent that determines the rights and liabilities of the parties, the settlement plainly does move the litigation toward a determination by the court. It is true that, in the latter class of case, the determination will largely be the result of agreement as opposed to a working out by the court of the parties' rights and liabilities. But even where the parties are agreed on the orders which should be made for the determination of their rights and liabilities, it remains for the court to be satisfied that it is appropriate so to order. Thus, for one party later to contend that it was negligent of an advocate to advise in favour of such a settlement will involve calling into question the rectitude of the court's order. To take a simple case for example, suppose that a plaintiff's claim is for $200,000 and that the proceeding is settled on terms that the defendant pay the plaintiff $150,000 and that the parties consent to an order that the plaintiff's claim be struck out or dismissed without an adjudication upon the merits. In such a case, the order to strike out or dismiss the proceeding without any adjudication on the merits would not, in any sense, determine the rights and liabilities of the parties. Hence, a claim that an advocate was negligent in advising the defendant to settle on those terms would not involve any attack on the order. The attack would be confined to the defendant's contractual obligation under the terms of settlement to pay the plaintiff $150,000. In those circumstances the immunity would not apply. By contrast, if the plaintiff's claim were settled on terms that the parties consent to an order that the defendant pay the plaintiff $150,000, and such an order were made, the order would determine the rights and liabilities of the parties. It would determine that the extent of the defendant's liability to the plaintiff was $150,000. And, in such a case, a claim that the advocate was negligent in advising the defendant to consent to the order would involve a collateral attack on the order. It would require the defendant to establish that, but for the advocate's negligence in advising the defendant to consent to the order, the court would have determined that the defendant's liability to the plaintiff was less than $150,000, and thus that the order that the defendant pay the plaintiff $150,000 was, in that sense, wrong. It would be similar if the plaintiff's claim were settled on terms that the defendant pay the plaintiff $150,000, the proceeding be struck out and, in default of timeous payment, the defendant consent to judgment for $200,000; and if, following default by the defendant, the plaintiff successfully moved for judgment for $200,000 on the terms of settlement. The court's order that the defendant pay the plaintiff $200,000 would determine the rights and liabilities of the parties, namely, that the defendant was liable to the plaintiff for $200,000. In those circumstances, a claim that the defendant's advocate was negligent in advising the defendant to enter into the terms of settlement would also involve a collateral attack on the order. It would require the defendant to establish that, but for the advocate's negligence in advising the defendant to enter into the terms of settlement, the court would have determined that the defendant's liability to the plaintiff was less than $200,000, and thus that the order that the defendant pay the plaintiff $200,000 was, in that sense, wrong. By further contrast, however, advice to reject an offer of settlement will, if accepted, invariably affect the conduct of the case in court. To persist with the example of the claim for $200,000, if an advocate advised the defendant against accepting an offer to settle for $150,000 and at the conclusion of the trial the court gave judgment for the plaintiff for $190,000, a subsequent claim by the defendant that the advocate was negligent in advising against settlement would call into question whether the advocate had a reasonable basis for so advising. As the majority observe, in principle that might not necessitate establishing that the judgment was wrong. But it would necessitate re-litigation of issues determined at trial, including: the strength of the plaintiff's case; probably, the appropriate weight to be given to the evidence, taking into account considerations of credibility and reliability of witnesses; and the correct application of legal principle and authority. That is the kind of exercise which D'Orta was calculated to avoid and, in my view, it is not one which should now be sanctioned. Conclusion In this case, the determination of the appellants' claim would necessitate re-opening the controversy between the first appellant and Australia and New Zealand Banking Group Limited ("the Bank") and receivers appointed by the Bank by way of a collateral attack which seeks to demonstrate that, in the circumstances of this case, the judicial determination comprised of the consent order that there be judgment for approximately $3.4 million was not a just determination of the first appellant's liability to the Bank. That being so, I consider that the Court of Appeal of the Supreme Court of New South Wales was right to hold that the immunity applied. I would dismiss the appeal.
GORDON J. Introduction The first appellant, Mr Gregory Ian Attwells ("Mr Attwells"), was a defendant in proceedings commenced by Australia and New Zealand Banking Group Limited ("the ANZ Bank"), and receivers appointed by the ANZ Bank, in the Supreme Court of New South Wales ("the Recovery Proceedings"). The Recovery Proceedings were settled. A "Judgment/Order" was entered on 16 June 2010 ("the Order"), pursuant to r 36.11 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). It was in the terms of a "Consent Order" signed by the parties ("the Consent Order"). The Order comprised two sections. The first section, headed "BY CONSENT, THE COURT ORDERS THAT", contained nine orders. Order 1 of the Order was verdict and judgment for the ANZ Bank against Mr Attwells and others in the sum of $3,399,347.67. Orders 2 to 7 of the Order provided, amongst other things, that Mr Attwells and Ms Barbara Lord ("Ms Lord") give possession of certain land, water rights and goods to the ANZ Bank and the receivers. Order 8 of the Order was verdict and judgment for the cross‑defendants on the Amended Cross-Claim and order 9 of the Order dismissed the Amended Cross-Claim. In the second section of the Order, "THE COURT NOTES … THE AGREEMENT BETWEEN" the ANZ Bank and the receivers and Mr Attwells, Ms Lord and another defendant that, amongst other things: (a) the ANZ Bank and the receivers would not enforce orders 1 to 9 of the Order if Mr Attwells, Ms Lord and another defendant paid the ANZ Bank $1,750,000 on or before 19 November 2010; and (b) in the event that Mr Attwells, Ms Lord and another defendant failed to comply with particular obligations (including paying the ANZ Bank $1,750,000 on or before 19 November 2010), the ANZ Bank and the receivers would be "at liberty to enforce [orders 1 to 9] forthwith" (emphasis added). Under r 36.1A of the UCPR, the court may "give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them". Jackson Lalic Lawyers Pty Limited, a company carrying on legal practice under the name "Jackson Lalic Lawyers", had advised Mr Attwells and Ms Lord to sign the Consent Order and to consent to judgment in the terms recorded in that Consent Order. A verdict and judgment was made or given, and entered, in the sum of $3,399,347.67 by the Supreme Court of New South Wales. The appellants sued Jackson Lalic Lawyers in negligence. For the purposes of determining whether Jackson Lalic Lawyers was entitled to the benefit of the advocate's immunity in respect of that advice, the parties agreed that the advice was given and that it was negligent. Argument in this Court has proceeded on the assumption that the full extent of the liability of Mr Attwells and Ms Lord to the ANZ Bank was only $1,856,122.28. Was Jackson Lalic Lawyers able to be sued in damages in a civil action for that advice? In the circumstances of this appeal, the answer is "No", because the giving of the advice is covered by the advocate's immunity. Facts The appeal in this Court and the decisions below proceeded upon "Proposed Agreed Facts". They are as follows. Mr Attwells and Ms Lord were guarantors of certain advances made by the ANZ Bank to a company, Wilbidgee Beef Pty Limited ("the Company"). The Company defaulted and the ANZ Bank commenced the Recovery Proceedings against Mr Attwells and Ms Lord on the guarantee. The second appellant, Mr Noel Bruce Attwells, is the assignee of the rights of Mr Attwells against Jackson Lalic Lawyers. In about April 2010, Mr Attwells, Ms Lord and the Company retained Jackson Lalic Lawyers to act for and advise them in relation to their dealings with the ANZ Bank and Mr Attwells and Ms Lord retained Jackson Lalic Lawyers to conduct their defence of the Recovery Proceedings. On 15 June 2010, counsel for the ANZ Bank and the receivers opened the trial of the Recovery Proceedings before Rein J in the Supreme Court and acknowledged in open court that: (a) the claim by the ANZ Bank against Mr Attwells and Ms Lord on the guarantee was limited; (b) the ANZ Bank accepted that the debt due by Mr Attwells and Ms Lord on the guarantee was $1.5 million plus interest plus enforcement costs ("the guaranteed debt"); and (c) the amount of the guaranteed debt, as at 15 June 2010, as certified by the ANZ Bank, was $1,856,122.28. On 15 June 2010, senior counsel briefed by Jackson Lalic Lawyers to appear for Mr Attwells and Ms Lord negotiated a settlement of the Recovery Proceedings on terms that there would be judgment for the ANZ Bank for $1,750,000, inclusive of costs, and Mr Attwells and Ms Lord would have until the end of November 2010 to pay that amount. Shortly after the luncheon adjournment on 15 June 2010, senior counsel approached Mr Attwells, Ms Lord and Mr Faris Shehabi of Jackson Lalic Lawyers and said words to the effect, "I have got you $1,750,000 and November to pay. Is that OK?" Mr Attwells and Ms Lord gave instructions to settle the proceedings on that basis. At about 2.30 pm on that day, the Court was informed that the Recovery Proceedings had been settled, subject to terms. The hearing of the Recovery Proceedings was adjourned by the Court to permit terms of settlement to be prepared and subsequently handed up the next day. During the afternoon of 15 June 2010, draft terms of settlement, in the form of the Consent Order, were prepared by the solicitors for the ANZ Bank and forwarded to Mr Shehabi of Jackson Lalic Lawyers. At or about 7.30 pm on 15 June 2010, during a conference at the offices of Jackson Lalic Lawyers, Mr Shehabi on behalf of Jackson Lalic Lawyers advised Mr Attwells and Ms Lord that they should sign the Consent Order and consent to judgment against themselves, in favour of the ANZ Bank, in the sum of $3,399,347.67 because, if they defaulted in payment of the sum of $1,750,000 by 19 November 2010, it would not make any difference if the judgment in favour of the ANZ Bank was for $3,399,347.67 or any other sum. Mr Attwells and Ms Lord signed the Consent Order. The Consent Order was submitted to the Court on 16 June 2010. The Order The Order was entered by the Court on 16 June 2010. The Order comprised two sections - orders of the Court and the recording of an agreement between the parties. Relevantly, it was in the following terms: "BY CONSENT, THE COURT ORDERS THAT:
Attwells
Jackson Lalic Lawyers Pty Limited
(2005) 223 CLR 1
(1988) 165 CLR 543
Appeal allowed. Orders 3, 4 and 5 of the Court of Appeal set aside and in lieu thereof the appeal allowed, orders of Harrison J set aside, and the separate question answered 'No'. Orders of the Supreme Court made 28 October 2014 set aside. Respondent to pay appellants' costs of the separate question proceedings below and of the appeal; intervener to pay costs occasioned by its intervention.