ALPINE HOLDINGS PTY LTD -v- FEINAUER [2008] WASCA 85
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 85 | |
| THE COURT OF APPEAL (WA) | 30/04/2008 | ||
| Case No: | CACV:55/2007 | 20 DECEMBER 2007 | |
| Coram: | STEYTLER P NEWNES AJA | 19/12/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ALPINE HOLDINGS PTY LTD EGON KONIG SHELLEY KONIG DIRK FEINAUER |
Catchwords: | Negligence Advocate's immunity Claims by client that solicitor negligent in pleading hopeless case in earlier proceedings and in advising client that settlement offer should be rejected Claims struck out on interlocutory application as subject of advocate's immunity Whether client's claims are arguable Ambit of advocate's immunity for out of court work Whether advocate's immunity applies to claim under Fair Trading Act 1987 (WA) |
Legislation: | Fair Trading Act 1987 (WA), s 10 |
Case References: | Agar v Hyde (2000) 201 CLR 552 Alpine Holdings Pty Ltd v Feinauer [2007] WASC 58 Biggar v McLeod [1978] 2 NZLR 9 Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 Chamberlain v Ormsby [2005] NSWCA 454 Donellan v Watson (1990) 21 NSWLR 335 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Francis v Bunnett [2007] VSC 527 Giannarelli v Wraith (1988) 165 CLR 543 Gray v Morris [2004] 2 Qd R 118 Keefe v Marks (1989) 16 NSWLR 713 M M & R Pty Ltd v Grills [2007] VSC 528 Rees v Sinclair [1974] 1 NZLR 180 Rondel v Worsley [1969] 1 AC 191 Saif Ali v Sydney Mitchell & Co [1980] AC 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALPINE HOLDINGS PTY LTD -v- FEINAUER [2008] WASCA 85 CORAM : STEYTLER P
- NEWNES AJA
- First Appellant
EGON KONIG
Second Appellant
SHELLEY KONIG
Third Appellant
AND
DIRK FEINAUER
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : ALPINE HOLDINGS PTY LTD & ORS -v- FEINAUER [2007] WASC 58
File No : CIV 1001 of 2005
Catchwords:
Negligence - Advocate's immunity - Claims by client that solicitor negligent in pleading hopeless case in earlier proceedings and in advising client that settlement offer should be rejected - Claims struck out on interlocutory application as subject of advocate's immunity - Whether client's claims are arguable - Ambit of advocate's immunity for out of court work - Whether advocate's immunity applies to claim under Fair Trading Act 1987 (WA)
Legislation:
Fair Trading Act 1987 (WA), s 10
Result:
Appeal allowed
Category: B
Representation:
Counsel:
First Appellant : Mr A Metaxas
Second Appellant : Mr A Metaxas
Third Appellant : Mr A Metaxas
Respondent : Mr E M Corboy SC
Solicitors:
First Appellant : Metaxas & Hager
Second Appellant : Metaxas & Hager
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- Case
- [2008] WASCA 85
- Decision Date
CaseChat Overview and Summary
The court considered whether the plaintiff's claims were arguable and, if so, whether the advocate's immunity applied. The court noted that advocate's immunity is a qualified immunity that applies to acts done in the course of advocacy, but it is not absolute. The court held that the plaintiff's claims were arguable because they alleged a breach of the defendant's duty of care in providing legal advice. However, the court also held that the advocate's immunity applied to the defendant's out-of-court work, including the advice given in relation to the settlement offer. The court further held that the advocate's immunity did not apply to the claim under the Fair Trading Act 1987 (WA) because that claim was not based on the defendant's advocacy work.
The court allowed the appeal, setting aside the orders striking out the plaintiff's claims and remanding the matter for further proceedings. The court held that the plaintiff's claims were not immune from liability and that the advocate's immunity did not apply to the claim under the Fair Trading Act 1987 (WA). The court also noted that the plaintiff's claims were not frivolous or vexatious and that there was a real prospect that they would succeed.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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