Stillman v Rushbourne[2015]HC 410
Stillman has appealed the decision NSW Supreme Court, that advice leading to the settlement falls within advocates’ immunity. The issues on appeal are whether the advice given by the respondent (Rushbourne) attracts immunity. The second issue on appeal, is whether the use of advocate’s immunity to solve a strike out application was appropriate.
As held by Gleeson CJ, Gummow, Hayne and Heydon JJ, in D'Otestrta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 223 CLR; The rule states that conduct effecting the decision, is conduct that lasts from the decision until and including the last opportunity to change that course during the hearing. Under the rule, in order for an exception to be granted it must…show more content… The element in contention in Stillman v Rushbourne is whether the advice given to Stillman by Rushbourne was internal or external. Thus, was it inside or outside the conduct of the case? For this, we need to assume that the first part of the rule was satisfied and focus on the second part.
In Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454; Justice Giles held; it was determined that an advocates’, or in this case a barristers, advice led to the appellants decision. In this case, the counsel advised his client, the morning before the hearing to accept lump sum payments; settling his workers compensation. The result of this advice was that the plaintiff surrendered his common law rights. The Barristers advice was pivotal in the appellants’ decision to accept the terms of the settlement. However, the barrister was not found to be giving negligent advice as he was advising him as to the effect of his acceptance not to accept. Justice Tobias and Justice Giles agreed, that Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 demonstrated that the barristers/legal advocate’s conduct was intimately connected with the course of that case including its settlement. As the advocate’s advice was integral to the decision of the plaintiff. Justice Giles held that this case demonstrated that "conduct of the case in court” includes bringing the case to an end by
