Donnellan v Woodland

Case [2012] NSWCA 433


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Donnellan v Woodland [2012] NSWCA 433
Hearing dates:8 August 2012
Decision date: 18 December 2012
Before: Beazley JA at [1];
Basten JA at [253];
Barrett JA at [276];
Hoeben JA at [284];
Sackville AJA at [285]
Decision:

1. Appeal allowed;

2. Set aside orders made in the Court below;

3. Judgment for the defendant on the statement of claim;

4. The respondent to pay the appellant's costs of the appeal and at first instance. The respondent to have a certificate under the Suitors' Fund Act 1951;

5. The notice of motion filed 4 September 2012 dismissed with costs.

[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:

TORTS - Negligence - Legal practitioner's duty of care - Legal practitioner retained to advise in respect of the Conveyancing Act 1919, s 88K - Application not granted - Whether legal practitioner's advice negligent - Whether advice protected by advocates' immunity - Principle of finality of litigation.

LEGAL PRACTITIONERS - Advocates' immunity - Application of principle in D'Orta-Ekenaike v Victoria Legal Aid - Scope of advocates' immunity - Whether alleged negligent conduct led to a decision affecting the conduct of the case in court.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Conveyancing Act 1919
Fair Trading Act 1987
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1988) 43 NSWLR 504
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420
Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Attard v James Legal Pty Ltd [2010] NSWCA 31
Biggar v McLeod [1978] 2 NZLR 9
Blulock Pty Ltd v Majic (2001) 10 BPR 19,143
Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; 74 ALJR 209
Bott v Carter [2012] NSWCA 89
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Coshott v Barry [2009] NSWCA 34
D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1
Dansar Pty Ltd v Pagotto [2008] NSWSC 112
Day v Rogers [2011] NSWCA 124
Durack v De Winton (1998) 9 BPR 16,403
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
Grattan v Simpson (1998) 9 BPR 16,649
Hanny v Lewis (1998) 9 BPR 16,205
Hawkins v Clayton [1988] HCA 15; 164 CLR 539

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AGLC
Donnellan v Woodland [2012] NSWCA 433
Case
[2012] NSWCA 433
Decision Date

CaseChat Overview and Summary

In *Donnellan v Woodland*, the New South Wales Court of Appeal considered a claim brought by the plaintiff, Ms. Donnellan, against her former legal practitioner, Mr. Woodland. Ms. Donnellan alleged that Mr. Woodland had been negligent in his advice concerning an application under section 88K of the *Conveyancing Act 1919* (NSW). The application, which sought to impose an easement, was ultimately unsuccessful.

The central legal issues before the Court of Appeal were whether Mr. Woodland's advice constituted negligence, and crucially, whether the doctrine of advocates' immunity, as affirmed in *D'Orta-Ekenaike v Victoria Legal Aid*, protected him from liability. The court was required to determine the scope of advocates' immunity and whether the alleged negligent conduct related to decisions affecting the conduct of the case in court, thereby engaging the principle of finality of litigation.

The Court of Appeal allowed the appeal, setting aside the orders made by the court below and entering judgment for the defendant, Mr. Woodland. The court reasoned that the plaintiff's claim was barred by the doctrine of advocates' immunity. The alleged negligence related to advice given in relation to court proceedings and the conduct of the case, which fell within the ambit of the immunity designed to ensure the finality of litigation. Consequently, the plaintiff was ordered to pay the defendant's costs of the appeal and the proceedings at first instance.

Orders

Orders of the court

1. Appeal allowed;

2. Set aside orders made in the Court below;

3. Judgment for the defendant on the statement of claim;

4. The respondent to pay the appellant's costs of the appeal and at first instance. The respondent to have a certificate under the Suitors' Fund Act 1951;

5. The notice of motion filed 4 September 2012 dismissed with costs.

[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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