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2 in order not to impact adversely on the

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2. In order not to impact adversely on the administration of justice - allowing barristers to be sued for negligence in a court case it can put justice into disrepute- end up with conflicting decisions. Decisions can only be overturned if they’re appealed; doesn’t affect the first case. It stands until it is appealed. If p can appeal every time they lose a case, they can say it was because of their lawyer’s negligence, so will get 2 cases for every case. These 2 arguments are the main ones that led the courts to decide to continue with immunity. The immunity is not intended to benefit barristers but to protect with the administration of justice. Strong dissents in this case: J Deane said might be legit arguments but they don’t outweigh the injustice and the public detriment of not allowing people to sue barristers in negligence. It has nothing to do with foreseeability it is purely policy. Difficult to know exactly where it applies but it must be in court work, but what is “in court”? doesn’t end exactly outside the door of the court, some things that lead you into the court (preparing for the court) are also protected, which things are protected is a fuzzy line but not strictly decided on inside and outside the court room. Jurisdictions are slowly getting rid of this immunity. D’orta-Ekenaike v Victoria Legal Aid and McIvor (2005 HC Decision): P was charged with rape and sought assistance from the legal aid office. Lao sought a barrister to act for the P. In the criminal process go to a committal hearing (not the trial yet), it was alleged by P that the legal aid officer and the barrister exerted undue pressure on the P to plead guilty. They said “Well you haven’t got a good defence. If you plead guilty and you’re found guilty, you’ll get a suspended sentence. But if you plead not guilty and are found guilty, you’ll go to jail, so plead guilty whether or not you are”. They applied pressure on him to plead guilty. By the time he got to trial he decided not to do that, and pleaded not guilty. Unfortunately for him, evidence was admitted about what he had pleaded at the committal hearing, so the jury was told that although he was pleading not guilty now, he had earlier pleaded guilty. Prejudicial, judge did not handle it as he should have and it was a mistrial. P was released, acquitted in the end but spent yrs in jail before that happened. He alleged the Barrister and the solicitor were negligent in instructing him to plead guilty and as a result he was injured (lost his freedom, financial loss, mental harm etc). Vic courts all said no you cannot sue a barrister (in court work, no action). Appeal to HC and they agreed to hear it given the developments around the world, worthwhile to re-look at it in Australia. Court said: we retain the immunity (6:1).
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