Alpine Holdings Pty Ltd v Feinauer

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ALPINE HOLDINGS PTY LTD -v- FEINAUER [2008] WASCA 85



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASCA 85
THE COURT OF APPEAL (WA)30/04/2008
Case No:CACV:55/200720 DECEMBER 2007
Coram:STEYTLER P
NEWNES AJA		19/12/07
27Judgment 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
HEARD : 20 DECEMBER 2007 DELIVERED : 20 DECEMBER 2007 PUBLISHED : 30 APRIL 2008 FILE NO/S : CACV 55 of 2007 BETWEEN : ALPINE HOLDINGS PTY LTD
    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
(Page…
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Details
Case
[2008] WASCA 85
Decision Date

CaseChat Overview and Summary

In the case of Alpine Holdings Pty Ltd v Feinauer, Alpine Holdings, the plaintiff, sued Feinauer, the defendant, for negligence in relation to legal services provided during earlier proceedings. The plaintiff alleged that Feinauer was negligent in pleading a hopeless case in the earlier proceedings and in advising the plaintiff to reject a settlement offer. The case was heard in the Supreme Court of Western Australia. The plaintiff sought to strike out the claims on the basis of advocate's immunity, arguing that the claims were not arguable and that the immunity extended to the defendant's out-of-court work. The plaintiff also contended that the advocate's immunity did not apply to the claim under the Fair Trading Act 1987 (WA).

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

Full text does not contain this section.

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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