Mon, 11 Sep 2006 11:06:36 -0500
Barristerial Immunity Lifted in New Zealand
the decision can be found here.
fact the decision is rather ho-hum in terms of the actual rule ...
the arguments are those that one would expect to find, and to be
fair to the court it is impossible to think up new arguments about
this old chestnut.
I thought that more time might have been spent with the dissent
of Anderson in the Court of Appeal about the realities of NZ practice.
I suspect that the terms of the decision will make actual cases
very rare - there appears to be a presumption that so long as a
judgment remains unchallenged on appeal, any civil case against
the lawyer will almost always an abuse. The Court believes that
judges will be able to sort out the rare cases (Tipping suggests
that there ought to be an absolute rule in criminal cases). But
the Court, of course, mistakes that the reality that it will be
insurance companies that will in fact decide which cases will paid
out and it is unclear how those adjusters will decide these issues.
more interesting parts of the judgments lie in the discussion of
prospective overruling (which the court appears to accept is possible
but not necessary in this case since lawyers would have already
have had adjusted their insurance policies to deal with the uncertainties
in the rule). Tipping J invites us I think to consider the reality
of the problem of time in the common law.
For smaller Common law countries there is also a very interesting
discussion of what having your own "common law" means
and the flexibility that enabling statute (the NZ statute gave NZ
barristers the privileges of their English counterparts)
From: Barry Allan
Sent: Sunday, September 10, 2006 6:49 PM
Subject: ODG: Barristerial Immunity Lifted in New Zealand
Supreme Court of New Zealand has, within the last half hour or so,
finally ruled on the question of barristerial immunity in New Zealand
in Chamberlains v Lai  SC 70, after a hearing last
October. The main judgment is by Elias CJ & Gault & Keith
JJ. The Supreme Court upholds the CA rejection of the immunity for
barristers in civil cases, saying that the special role of the advocate
simply does not justify protection . While Australia has based
immunity on a public policy interest in integrity of the system
and finality (D'Orta-Ekenaike), immunity would only be
justified if procedural rules were inadequate to provide finality.
Abuse of process does provide a suitable restraint on collateral
challenges to convictions. At the same time, the SC rejects any
contention that any collateral challenge will always be an abuse
of process (cf D'Orta-Ekenaike).
major shift from the CA decision is the rejection of any distinction
according to whether proceedings are civil or criminal, on the ground
that any such distinction would be "invidious" (citing
Lord Millett in Arthur JS Hall v Simons) and raise characterisation
is more, and there is a supporting judgment from Tipping J which
I have yet to digest, although he does opine that a civil proceeding
would always be an abuse of process if it amounted to a collateral
challenge to a criminal conviction, and a snappy rejection of that
position by Thomas J.
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