Majority of them said barristers and solicitors can

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Majority of them said barristers and solicitors can still claim immunity, there is no duty of care. They looked again at the new legislation (the one that replaced Legal Profession Practice Act s 10(2) and said that because it’s new legislation, it shows parliament is still assuming there is immunity. In regards to the Common Law- should the courts abolish immunity? They said the fact that the UK has gotten rid of immunity doesn’t decide the case, UK has different laws dealing with human rights than we do here, not just say b/c the UK did it, so will we. Most of the states have changed their torts legislation and none have repealed this immunity, so parliament seems to want it. And lastly said, for reasons of policy, we’re going to keep it . Policy that was particularly important: idea of finality, they want finality in our law. Majority said- (Para [34] and [45]) - ‘Controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances’ (only in appeals, otherwise they don’t want cases reopened after the case has been decided). For a case to succeed against a barrister what would they have to prove in neg action? That harm was suffered, that something happened to p that wouldn’t have happened if it weren’t for the barrister’s negligence- have a mini retrial convince the court that p would’ve won if the barrister had done their job properly- rehashing of the case. Court was concerned that couldn’t be done properly given they’ll have different parties involved, different judges, have to call in the same witnesses- wont be done properly, make our system inefficient so they don’t allow it. It would make our system inefficient. Made it clear the immunity is for both barristers and solicitors, and does not end as soon as out of the court door, slightly broader than that. ‘Where a legal practitioner (bar or solicitors) gives advice which leads to a decision which affects the conduct of a case in the court, the practitioner cannot be sued’. (Para [91]) – ‘where a legal practitioner (whether acting as advocate, or as a solicitor instructing an advocate) gives advice which leads to a decision which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account’. Broader than just in court. Kirby J was the dissent: he said he doesn’t think Australian barristers needed more protection than people overseas. Can see how the court uses policy to justify their decisions. o Military: People who are injured in the course of military operations (2 groups: injuries during wartime and injuries during peacetime. Wartime : The armed service (military) don’t owe a duty of care to anyone in wartime (Pg 205): ‘If there’s a doc, it would mean that combat whether be land, sea or air, our men go into action accompanied by the law of civil negligence warning them to be mindful of the person or property of the civilians. It would mean that the courts would be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have Torts Lecture Notes 5
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been more careful to avoid civil loss or damage, no one can imagine a court undertaking the trial of such an issue.’
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