Tuesday, April 05, 2005

More on Barristerial Immunity

Janet Albretchtsen argues in The Australian that it is the role of the Parliament to make the public policy decision with regard to immunity of barristers from negligence claims, suggesting that the High Court should not make "judicial adventures".

I'd argue not so. The High Court, being a separate arm of government is entitled to make rules that uphold and regulate the conduct of its members such that their institution is held in highest regard by the members of the public. Failure to do so at the very highest levels only leads to the opinion that the legal system is unfit to run itself, and can only be changed by the Government.

The High Court could have ruled that D'Orta-Ekenaike vs Victorian Legal Aid & Anor [2004] HCA was non-justiciable, as there is going to be a perception of a conflict of interest, and defer to Parliament to make a decision. The Court has done this with environmental issues on the basis that this is a complex issue involving many public interests. Why not this one?

A former President of the NSW Bar Association suggested that incompetence of counsel could be established as grounds of appeal in civil cases, as a way of keeping barristerial immunity while "getting the results right". (via Adam Barnes)

If anyone cares to remember, Equity was created to overcome the harshness of the Common Law. To get the results right. Maybe it's time to bring that back.


Post a Comment

<< Home