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Barrister accused of negligence protected by immunity
A Victorian barrister accused of allegedly damaging his client’s parenting dispute has been protected from a negligence finding because he was covered by the advocate’s immunity defence.
Naomi Neilson
A client, who cannot be named, told the Victorian Civil and Administrative Tribunal (VCAT) that his barrister, Marcus Duckett, allegedly jeopardised his chances because of his poor performance in the Federal Circuit and Family Court of Australia (FCFCOA).
Each of the client’s claim of negligence and breaches of Australian Consumer Law were covered by this immunity.
Duckett represented the client during a trial late last month, during which the client alleged he did not have a strong strategy, did not follow instructions by asking specific questions of witnesses, and did not prepare objections to evidence relied on by his ex-partner.
The client alleged that had Duckett performed better, he would have received a “significantly better result” in the parenting orders.
When the advocate’s immunity was raised, the client said barristers could not have immunity and “everyone has to be accountable”.
He also argued the immunity defence is likely to be abolished in Australia, as it has been in the United Kingdom and New Zealand, and because it has never existed in the United States.
“Mr Duckett must be held to account. He provided no value to the applicant in representing him at trial,” the client alleged.
Although the tribunal could not decide on the actual allegations, Campbell noted it did not have the transcript of the Federal Circuit and Family Court of Australia trial, and it would have “therefore been difficult for the applicant to prove a number of the allegations”.
Further, the list of questions provided to Duckett to ask of witnesses appeared to be “largely irrelevant” to the parenting dispute and “also appeared to be needlessly offensive or abusive to the witnesses”.
The case is: OCP v Duckett (Legal Practice) [2024] VCAT 844 (5 September 2024)
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
