However, member Neill Campbell found Duckett was protected by advocate’s immunity, which protects solicitors and barristers’ work inside courtrooms and the work completed outside of court but which has an “intimate connection” with the conduct of a case.

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.

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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)