D'Orta-Ekenaike v Victoria Legal Aid

Legal practitioners – Negligence - Immunity from suit - Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution - First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings - Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial - Evidence of guilty plea led at first trial - Applicant convicted but verdict quashed on appeal and new trial ordered - Applicant acquitted on retrial - Respondents alleged to have been negligent in advising applicant to plead guilty at committal - Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding - Whether advocate's immunity available to respondents - Whether advocate's immunity applied in respect of advice allegedly given in conference.

Legal practitioners – Immunity from suit - Legal Profession Practice Act 1958 (Vic) - Barristers liable for negligence to same extent as solicitor as at 1891 - Extent of solicitor's liability for negligence in 1891.

Courts – Judicial process - Judicial process as an aspect of government - Nature of the judicial process - The need for finality of judicial determination - Whether advocate's immunity necessary to ensure finality of judicial process.

Courts – Abuse of process - Whether rules about abuse of process provide sufficient satisfaction of the finality principle - Nature of client's complaint - Whether distinction exists between civil and criminal proceedings - Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.

High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered - Relevance of statutory changes since Giannarelli v Wraith - Relevance of developments in common law in England and Wales - Relevance of experience in other jurisdictions.

Courts – Practice and procedure - Summary determination of action without trial - Whether claim revealed an arguable cause of action.

Legal Profession Practice Act 1958 (Vic) – s 10.

Legal Practice Act 1996 (Vic) – s 442.