Giannarelli v Wraith
High Court of Australia · 1988
Giannarelli v Wraith (1988) 165 CLR 543
Counsel notices an irregularity that could get the trial stopped. The client would rather keep it for the appeal. Who decides?
Advocates' immunity was reaffirmed, and the rationale sharpened rather than replaced. Gleeson CJ, Gummow, Hayne and Heydon JJ put "the central justification for the advocate's immunity" as "the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances" ([45]) -- the same concern Mason CJ had expressed in Giannarelli, that a negligence action would be "an indirect means of calling in question the decision in the initial litigation". On the paramount duty itself their Honours are blunter than Giannarelli: the duties to court and client do not conflict, because "the duty to the court is paramount" ([26]).
The immunity, not the paramount duty, was confined. French CJ, Kiefel, Bell, Gageler and Keane JJ declined to overrule Giannarelli or D'Orta, and instead applied their test: it "is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute", because what is required is "a functional connection" such that advice given out of court "must affect the conduct of the case in court and the resolution of the case by that court" ([5]-[6]). So negligent advice producing a settlement is actionable even where litigation is on foot and the agreement is embodied in consent orders. Nothing in Attwells touches the paramount duty; it changes how far the immunity reaches.
What happened?
The Giannarellis had been convicted of perjury. The evidence against them was evidence they had given to a Royal Commission, which s 6DD of the Royal Commissions Act 1902 (Cth) rendered inadmissible — and no one at trial took the point. Two of the Giannarellis successfully appealed to the High Court and had their convictions quashed; the first did not appeal.
They then sued their barristers, and their instructing solicitor, for negligence: for failing to advise that s 6DD made the evidence inadmissible, and for failing to object to its tender. Whether the barristers could be liable at all was argued as a preliminary question of law.
What did the Court decide?
The barristers were immune from suit for work in court and work intimately connected with it, so the negligence claim could not proceed.
In reaching that, Mason CJ set out what the advocate's duty to the court actually demands. Its performance "will require him to act in a variety of ways to the possible disadvantage of his client": counsel "must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client's case", and "if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal" ([11]).
Proposition
What is the principle?
A lawyer's duty to the court is paramount and overrides the duty to the client where the two conflict. It is a structural feature of the adversarial system, not a departure from proper representation.
Mason CJ rejected the framing of the problem as a clash of loyalties: "[i]t is not that a barrister's duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary." What the duty "epitomizes" is that litigation "depends on the exercise by counsel of an independent discretion or judgment", with an eye "not only to his client's success, but also to the speedy and efficient administration of justice" ([12]).
Why does this case matter?
Because of how specific Mason CJ's list is. The abstract formulation is easy to agree with and easy to say nothing with; the list is not. Cite the authority that is against you. Raise the irregularity when you notice it rather than banking it for the appeal. Each of those costs the client something concrete and immediate, and that concreteness is what makes the case usable in a problem question rather than merely quotable.
There is a second reason, which is where the case now sits. Giannarelli is cited for the paramount duty, but it was decided as an immunity case, and the immunity has since been cut back while the duty has not. Keeping those two threads apart is most of what an answer on this case needs to do.
Exam and application relevance
When duties conflict, name the hierarchy before you resolve the facts. Then be precise about what the duty actually requires, because it is neither as narrow nor as broad as students assume. There is no general obligation to volunteer the weaknesses of the client's case. There are specific obligations: not to mislead the court, not to advance a case known to be false, to correct a statement the practitioner has themselves made to the court once it is known to be wrong, not to withhold authorities that detract from the client's case, and to take a procedural irregularity when it is noticed. On documents, Mason CJ's formulation sits alongside the applicable disclosure regime: comply with it even where what must be produced harms the client, and claim privilege where privilege exists — the duty does not require handing over privileged material. And do not reason from the paramount duty to a course of action where the professional rules prescribe one. Discovered false evidence is the clearest example: r 20.1 of the Solicitors' Conduct Rules deals with it, its terms are narrower and more specific than the general duty suggests, and it has been amended. Cite the rule as it currently stands in the relevant jurisdiction rather than deducing the answer from Giannarelli.
Keep the immunity separate. If the question is whether a practitioner can be sued, that is D'Orta-Ekenaike and Attwells, and the answer turns on whether the work had a functional connection to the resolution of the case by the court — advice that produces a settlement does not. If the question is what the practitioner should have done, that is the paramount duty, and no subsequent case has narrowed it.
Check your understanding
Counsel finds an appellate decision that is against the client and that opposing counsel has missed. What must counsel do, and what makes that consistent with representing the client properly?