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D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Ethics – Professional Obligations & Liability – Advocates Immunity

Facts; In 1996, Mr D’Orta-Ekenaike (‘D’Orta’), was charged with sexual assault and sought legal assistance from Victoria Legal Aid (‘VLA’), where he retained a solicitor and a barrister to appear for him at the committal hearing in the Magistrates’ Court of Victoria. D’Orta, claimed he was not guilty for sexual assault and was advised by his solicitor and his barrister to plead guilty prior to the committal hearing and was further advised that he would not get custodial sentence.

D’Orta followed the advice of his solicitor and barrister and plead guilty before the Magistrate. However, when D’Orta’s contested trial arrived in 1997, D’Orta changed his plea to not guilty. The Court admitted evidence of D’Orta’s earlier guilty plea and he was convicted and sentenced to three years imprisonment. D’Orta then appealed on the basis that the evidence he had earlier of pleading guilty before the Magistrate, should not have been led at the trial.

The Victoria Court of Appeal agreed, quashed the conviction and ordered for a new trial. At the re-trial, D’Orta was acquitted and sued the solicitor and barrister for advising D’Orta to plead guilty in the first place.

Holding; D’Orta applied to the High Court for special leave to appeal the decision of the Victorian Court of Appeal and asked the High Court to reconsider the decision from the Giannarelli v Wraith (1996) case; which is the doctrine of immunity for advocates, good law in Australia (NB: legal practitioners paramount duty is to the court, even if advice to a client is contrary). However, the High Court in the D’Orta case, upheld the immunity by a decision of 6:1 and any advice given by a legal practitioner, that leads the client to a decision, and affects the conduct of the case in Court, raises immunity. Ultimately, it is based on the intimate connection of work by legal practitioner, to the outcome.

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