Kendirjian V Atwell Case Summary

analytical Essay
1563 words
1563 words

Part 1 - KENDIRJIAN V LEPORE [2017] Lucas Sall I Summary In 1999, a case was brought before NSW District Court, to assess the damages of a Mr Kendirjian whom had, as a result of a motor vehicle accident suffered injury, thus claiming damages via the Motor Accidents Compensation Act 1999 from a Mrs Ayoub. (Kendirjian v Ayoub) This claim, resulting in a settlement offer of $600’000 plus costs, was denied by the plaintiff, thus resulting in court proceedings. On assessment by the trial judge, Mr Kendirjian was awarded damages of $308,432.75 plus an additional $10’000 to assist with heavy lifting aid and home requirements. Mr Kendirjian, then sued the barrister and solicitor, for negligence in failing to present him with the original $600’000 …show more content…

In this essay, the author

  • Explains how a case was brought before nsw district court to assess the damages of mr. kendirjian who had suffered injury in motor vehicle accident, claiming damages via the motor accidents compensation act 1999.
  • Explains that the respondents successfully brought an application in the district court for summary judgment, upon which the court held that they were covered by advocates’ immunity. mr kendirjian applied to the high court of australia and was successful.
  • Explains that edelman j rejected the respondent's central contention for distinguishing attwells, striking down the argument of the respondents.
  • Concludes that mr. kendirjian had right to appeal, thus his appeal was accepted. the high court of australia has affirmed its decision in atwells.
  • Explains that advocates immunity grants an anomalous exception to the general rule that each wrong deserves a remedy. giannarelli was the first case to be recognised by the high court of australia.
  • Explains that advocates immunity is a legal immunity for civil claims against professional negligence of the practitioner. in australia, the doctrine of advocates immunity has been upheld by the courts.
  • Argues that if the high court chooses not to abolish the doctrine, they should be persuaded to restrict the scope so that it is only relevant to the public policy reasoning against its abolishment.
  • Argues that advocates immunity within common law countries is outdated and in need of change. the uk house of lords recently altered its stance on advocates' immunity by removing it altogether using case law.
  • Argues that the courts are limited by the doctrine and are therefore unable to protect the rights and liberty of those who deserve remedies.
  • Explains that australian courts have been reluctant in changing the law on advocates' immunity. justice brennan's opinion in giannarelli suggests the doctrines demise.
  • Opines that even with justification, there would need to be a majority within the high court for this to occur, unless the legislative branch were to legislate upon the change.
  • Explains that advocates have a larger duty to the court and the general public than the client, which often justifies the perpetuation of the doctrine.
  • Argues that clients have the right to remedies whereby their representation is negligent and that the judiciary would direct any jury or misinterpretation to the correct one.
  • Analyzes how kirby j argues that abolishing the doctrine could lead to re-litigation of disputes. d'orta wanted to see if he had a claim against the advocate in negligence.

(“Kendirjian”) Via this, the court also chose not to reopen the case of Atwells allowing the appeal and remitting the balance of the matter to the District Court of NSW. Edelman J rejected the respondent’s (Mr Conomos) central contention for distinguishing Attwells thus striking down the argument of the respondents. It seems that the High Court will be reluctant to depart from the decision made in Atwells. The decision in Kendijian resulted in a majority supporting Edelman J’s analysis and reasoning thus resulting in a joint judgement. In conclusion, the court found that in fact, Mr. Kendirjian had right to appeal, thus his appeal was accepted. Kendirjian confirms that the immunity still does not apply to settlements or matters in regard to settlements acknowledged out of court. Kendirjian and Atwells currently stand as the primary case law in Australia on the topic of Advocates Immunity and via the decision in Kendirjian, The High Court of Australia has affirmed its decision in Atwells, indicating that it will stick by its decision in future case …show more content…

Kirby J notes this in D’Orta. Australia should follow suit and abolish Advocates Immunity. It shall be argued, that advocates immunity within common law countries is outdated and in need of change. As stated by The Melbourne University Law Review ‘the immunity is often perceived by commentators and the media as an anachronism that is out of step with modern tort law.’ The UK House of Lords recently altered its stance on advocates’ immunity by removing it altogether, using case law. (Arthur J S Hall & Co (a firm) v Simons ) As a modern and contemporary society, Australia should follow in the steps of the UK by abolishing the doctrine , whether that be via parliament or the judicature. The courts are currently limited by the doctrine and are thus unable to protect the rights and liberty of those who deserve remedies. The UK, being primarily of modernity in regard to their legal approach could be argued as quite different to Australia and thus in rebuttal to that position, one would argue even New Zealand, another Australasian country has moved towards and abolished Advocates Immunity. In the case of Chamberlains v Lai New Zealand’s highest court chose to abolish Advocates Immunity, thus moving New Zealand towards a more just and modernist

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