Attwells v Jackson Lalic Lawyers Pty Ltd

[2013] NSWSC 925

Supreme Court

New South Wales

Medium Neutral Citation:

Attwells v Jackson Lalic Lawyers Pty Limited [2013] NSWSC 925

Hearing dates:

10 July 2013

Decision date:

10 July 2013

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. The question of whether the plaintiff's claim is defeated entirely because the defendant is immune from suit be decided separately and any other questions in the proceedings.

2. The motion is otherwise dismissed.

3. Costs are to be costs in the cause.

Catchwords:

PROCEDURE - notice of motion - order sought pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 - whether question of immunity from suit be considered separately and before any trial - consent orders made

Legislation Cited:

the Uniform Civil Procedure Rules 2005

Cases Cited:

Donnellan v Woodland [2012] NSWCA 433

Category:

Procedural and other rulings

Parties:

Gregory Ian Attwells (Plaintiff)
Jackson Lalic Lawyers Pty Limited (Defendant)

Representation:

Counsel:
Mr M Newton (Plaintiff)
Solicitors:
Whites Lawyers (Plaintiff)
Mr D Liistro, Sparke Helmore (Defendant)

File Number(s):

2011/185796

Publication restriction:

None

EX TEMPORE Judgment

1. By notice by notice of motion filed on 14 June 2013 the defendants sought various orders, including an order pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 that the question of the defendant's advocates' immunity from suit be considered separately and before any trial on other questions arising in the proceedings, on the basis of the assumed truth of the allegations contained in the amended statement of claim.

1. The application is supported by an affidavit sworn by Mr Cameron, the defendant's solicitor, who deposes to the circumstances in which the motion came forward. They include the substantial costs which would be involved in preparing the matter for hearing, which would be avoided if the identified separate question were heard in the way proposed.

1. Today the parties appeared before the Court proposing that the orders sought be made by consent. They submit that the circumstances are such that the order should be made, consistently with the observations of Barrett and Basten JJA in Donnellan v Woodland [2012] NSWCA 433, to the effect that, as a matter of principle, a defence of legal practitioners' immunity from suit should be disposed of before allegations of negligence are determined. Beazley JA discussed that issue at paras [6] - [10], observing at [9] that there was not a single correct approach to the question of separation, but that it would depend on the circumstances of the particular case and that there are circumstances where the immunity question can be determined on the basis of the conduct alleged in the pleadings.

1. In this case the parties are agreed that the immunity question can be determined on the basis of what is alleged in the amended statement of claim and the defence to that amended statement of claim filed on 31 October, raising as it does at [16] - [21] the advocates' immunity defence. There is no question as to the Court's power to make the orders sought under rule 28.2 of the Uniform Civil Procedure Rules. In the circumstances I am satisfied that it is appropriate to make such an order in this case, given that the issue relates to the conduct of proceedings.

1. I refer the parties back to the Registrar for the purpose of getting a hearing date of one day and a timetable accordingly being fixed for the filing and service of submissions.

1. I order that:

1. The question of whether the plaintiff's claim is defeated entirely because the defendant is immune from suit be decided separately and any other questions in the proceedings.

2. The motion is otherwise dismissed.

3. Costs are to be costs in the cause.

**********

Decision last updated: 11 July 2013