Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Day v Rogers [2011] NSWCA 124 Hearing dates: 2 March 2011 Decision date: 23 May 2011 Before: Allsop P at [1], Giles JA at [4], Sackville AJA at [151] Decision: 1. Appeal allowed.
2. Set aside the judgment for the plaintiff against the eighth defendant for $32,440 and in lieu thereof order that there be judgment for the eighth defendant.
3. Set aside any order for the costs of the trial and order that the plaintiff pay the eighth defendant's costs.
4. Order that the appellant pay the respondent's costs of the application for leave to appeal and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: LEGAL PRACTITIONERS - Professional negligence - barrister - wasted costs - failure to advise on necessary content of affidavit evidence - negligence not in issue - proceedings dismissed under r 29.9 Uniform Civil Procedure Rules (NSW) 2005 - on facts, negligence at and from time affidavits were prepared - work done drafting or settling affidavits led to decision affecting conduct of the case in court - decision to conduct case on the affidavits as prepared - negligence within advocate's immunity - whether causation broken because barrister did not take steps at hearing which might have averted dismissal - or because judge erred in dismissal - appropriate for the scope of liability to extend to the harm so caused - but for advocate's immunity scope, liability would extend to wasted costs - respondent to pay appellant's costs Legislation Cited: Civil Procedure Act 2005
De Facto Relationships Act 1984
Legal Profession Act 1987
Property (Relationships) Act 1984Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311;
Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360;
Coshott v Barry [2009] NSWCA 34;
Dancor Pty Ltd v Pagotto [2008] NSWSC 112;
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1;
Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711;
Khan v Hadid [2007] NSWSC 314;
Kardos v Sarbett [2006] NSWCA 11;
Keefe v Marks (1989) 16 NSWLR 713;
Manns v Kennedy [2007] NSWCA 217;
Paino v Paino [2008] NSWCA 276; [2008] 40 Fam LR 96;
Philip Walton v Efato Pty Ltd [2008] NSWCA 86, Coshott v Barry [2009] NSWCA 34;
Symonds v Vass [2009] NSWCA 139;
Vitali v Stachnik [2001] NSWSC 408;
Wilson v Carter [2005] NSWSC 1351.Category: Principal judgment Parties: David Day - Appellant
Keith Rogers - RespondentRepresentation: B W Walker SC &…
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- AGLC
- Day v Rogers [2011] NSWCA 124
- Case
- [2011] NSWCA 124
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Rogers' conduct, specifically his involvement in the preparation of affidavits, fell within the scope of advocate's immunity. It also had to consider whether any negligence on Rogers' part was causative of the dismissal of Day's proceedings, or if the chain of causation was broken by subsequent events, such as the trial judge's decision to dismiss the case or Rogers' actions (or inactions) at the hearing.
The Court held that negligence was not in issue, and that the negligence occurred at and from the time the affidavits were prepared. It reasoned that the work done in drafting or settling the affidavits directly influenced the decision to conduct the case on the basis of that evidence, which in turn led to the dismissal. The Court found that, but for the doctrine of advocate's immunity, Rogers' liability would extend to the wasted costs incurred by Day. However, applying the principles of advocate's immunity, the Court concluded that Rogers was not liable for the loss suffered by Day.
Consequently, the Court of Appeal allowed the appeal, setting aside the judgment for the plaintiff against the eighth defendant and ordering that there be judgment for the eighth defendant. The orders regarding the costs of the trial were also set aside, with the plaintiff ordered to pay the eighth defendant's costs. The appellant was ordered to pay the respondent's costs of the application for leave to appeal and the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the judgment for the plaintiff against the eighth defendant for $32,440 and in lieu thereof order that there be judgment for the eighth defendant.
3. Set aside any order for the costs of the trial and order that the plaintiff pay the eighth defendant's costs.
4. Order that the appellant pay the respondent's costs of the application for leave to appeal and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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