Justice Beazley AO raises issue of negligent lawyers

Thursday 19 July, 2012

NSW Court of Appeal judge, Justice Margaret Beazley AO, shared some of her views on ethical issues when she visited Warrane on May 30, 2012. Justice Beazley drew students’ attention to the fact that those in the legal profession who conduct cases in court were the only group in the community who are immune to being sued for negligence.

She pointed out that those who intended to become doctors, engineers, accountants and so on could all be prosecuted for negligent conduct. But lawyers, judges and even witnesses in a court of law could not be held accountable for their negligence for their conduct in court or connected with court proceedings.

“What about when your lawyer is very negligent in the conduct of your court case?” she asked. “Can you sue your lawyer? No you can’t. It is called advocate’s immunity. It is a very ancient principle going back to the 16th, 17th and 18th centuries. Anything that happens in court is protected.”

Justice Beazley pointed out that this is no longer the case in some countries. The privilege has been withdrawn in England and New Zealand, and in Papua New Guinea the nation’s Chief Justice, Sir Salamo Injia, has even been charged with sedition in connection with one of his legal decisions.

However the principle in Australia that legal personnel are protected in respect of court proceedings has been retained.

“Should there be such an immunity?” Justice Beazley asked. “That is a question I think should challenge you.”

Justice Beazley is one of Australia’s most senior judicial officers. She has served on the Equal Opportunity Tribunal, the District Court, as an Assistant Commissioner of the Independent Commission Against Corruption, the Federal Court of Australia, the Supreme Court of the Australian Capital Territory and the Industrial Relations Court of Australia. She was appointed to the Court of Appeal in 1996.

Justice Beazley encouraged Warrane residents to continue to ask questions about ethical issues throughout their professional lives.

“No question is stupid,” she said. “Sometimes by articulating a ‘stupid’ question you articulate the answer.”

This invitation led to a lively question-and-answer session after Justice Beazley’s speech.

One of those in the audience was barrister, arbitrator and former judge Barry O’Keefe AM QC, who pointed out that part of the reason that is given for continuing advocate’s immunity is that if it was eliminated there would be “a plethora of actions” in the court system.

When one resident asked Justice Beazley if she had ever seen lawyers performing in a negligent way in court, she said there had been occasions when she believed that if lawyers were their clients’ doctors their clients “would be dead”.

(A Warrane College Occasional Paper (No. 17) has been prepared based on her Honour's address: "Advocates' Immunity: Ethics and the Law")

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