Ruling Makes Law Work More Smoothly - For Lawyers

Sydney Morning Herald

Saturday March 12, 2005

Society should be ashamed at how out of step High Court judges have become ("Court makes lawyers safe from lawsuits", Herald, March 11). The fact that negligence cases, such an important aspect of the law, can be flattened by out-of-date judges with out-of-date views should be frowned upon by all members of society, including the legal profession.

I commend Justice Kirby for dissenting. If we cannot hold our lawyers to account then we are doomed to a system where equality is lost forever.

Simon Sheikh Newtown

High court, low decision. The 6-1 decision to exempt lawyers from litigation is proof of where things now stand in this country. With a plethora of lawyers in cabinet, the Prime Minister, John Howard included, and a stacked and ultra-conservative High Court to keep the old ship nice and steady, we can expect the law to function almost perfectly now, can't we?

An architect friend was recently and ruthlessly sued for negligence and breach of contract in a highly vexatious claim that took him to the brink emotionally, physically and financially.

Any prizes for guessing who laid out the bogus claim and then created a legal minefield for him to negotiate for the better part of three years? A pair of barristers, whistling high up in their legal tree. A tree we now see openly tended and watered by the High Court itself.

This dismal decision merely affirms the opinion of other professionals - those open to legal assault and bad advice - that no one is watching the umpire any longer. Moreover, that he is going home, taking bat and ball, the stumps and the whole damn wicket as well.

Richard Lawson Dulwich Hill

It is all right to lock up a fellow human being indefinitely who has committed no offence (Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji) and it is all right for barristers to pursue other professions with a vengeance for negligence, but for themselves to remain immune from their own cock-ups in court (D'Orta-Ekenaike v Victoria Legal Aid).

Aren't we lucky to have such wise, fair-minded, well-balanced, innovative, dynamic and compassionate old men on our High Court safeguarding all our rights?

Gerard Horton Paddington

The High Court is prepared to exempt lawyers from being sued for incompetent or negligent work in court cases on the basis that the case in which the defendant was convicted as a result of their lawyer's incompetence or negligence would be retried. What's wrong with that?

Chris Edye Pymble

How can we ever hope to convince ourselves, or anyone else, that we're a lawful society if we're happy to shield lawyers from negligence claims?

If this is at all valid - and we know it isn't (thank you, Justice Kirby) - then let the immunity apply to everyone and that'll poetically put the lawyers out of work.

Brian Haill Frankston (Vic)

I read with interest the two articles ("Majority ruling gives the minnows little chance", Herald, March 11) about barristers' immunity. It appears from the description of the first rape trial that the error leading to conviction was not the barristers' advice to plead guilty (plea subsequently changed prior to commencement of trial) which caused the wrongful conviction and damage, but the error of the first trial judge in allowing evidence of the original guilty plea to be given in evidence. At the second trial that evidence was rightly excluded and the accused was acquitted. The ensuing negligence case, which reached the High Court, should have been against the first trial judge, not the barristers.

What would the Herald's view be on a negligence proceeding against a trial judge for wrongly admitting evidence? If such a negligence claim succeeded, should the judge resign or be fired? Should the judge stand down until the claim had been disposed of?

After these considerations, we could turn our attentions to witness issues - witnesses are immune also, including expert witnesses such as the persons listed alongside Michael Pelly's article.

Alan Ivory, barrister

Auckland (NZ)

© 2005 Sydney Morning Herald

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