Day v Rogers

The appeal concerned a claim for professional negligence brought by the plaintiff, Day, against the eighth defendant, Rogers, a barrister. The dispute arose from Rogers' alleged failure to advise on the necessary content of affidavit evidence, which Day contended led to the dismissal of his proceedings under rule 29.9 of the Uniform Civil Procedure Rules (NSW) 2005. The primary court had found Rogers negligent and awarded damages to Day.

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.