Fowler v La Fontaine & Anor - [2007] NSWDC 207

CITATION: Fowler v La Fontaine & Anor [2007] NSWDC 207

HEARING DATE(S): 20 June 2007

JUDGMENT DATE:
15 October 2007

EX TEMPORE JUDGMENT DATE: 4 October 2007

JURISDICTION: Civil

JUDGMENT OF: Nicholson SC DCJ at 1

DECISION: 1. Order 1 sought in the N/M d 30/5/07, and in N/M d. 21/6/07 is refused; 2. Parties have leave to approach my associate to set a time and date to argue the question of costs if they cannot be agreed upon.; 3. Parties have leave to approach the Registrar to set a timetable to finalise pleadings.

CATCHWORDS: Civil Law - Notices of Motion - Strike-out of Statement of Claim - Claim of professional negligence by solicitor or barrister - Advocates' immunity - general rule finality of litigation - exceptions.

LEGISLATION CITED: District Court Rules Pt 18 r 3
District Court Rules, Pt 9, r 17(1)
Evidence Act 1995, s79

CASES CITED: D’Orta-Ekenaike v Victoria Legal Aid and Another (2005) 223 CLR 1
General Steel Industries v Commissioner for Railways (1964) 64 CLR 125
Giannarelli v Wraith (1988) 165 CLR 543
Giannarelli v. The Queen (1983) 154 CLR 212
Keefe v Marks, (1989) 16 NSWLR 713

PARTIES: Raymond John Fowler - Plaintiff/Respondant to both Notices of Motion.
Peter Allan La Fontaine - First Defendant/ Applicant to second Notice of Motion
Trevor Andrew Hall - Second Defendant/Applicant to first Notice of Motion.

FILE NUMBER(S): 4848/2006

COUNSEL: Pl: P. Glissan
D1: D. Priestley
D2: G. Reynolds SC

SOLICITORS: Rutland's Law Firm
La Fontaine Solicitors
Hall Lawyers

JUDGMENT

Determination of Notices of Motion

1 In early November 1994 the Plaintiff entered into a contract for sale of the Old Butter Factory at Telegraph Point, north of Port Macquarie. It was a sale involving not only the transfer of real estate, but also the business conducted from those premises. From the Plaintiff’s viewpoint that sale did not go well. It was the Plaintiff’s view that two of the parties involved, to his detriment, failed to complete the purchase of that property and business at the time of an extended date for completion. He sought redress in the Court, claiming compensation against them. Among the damages he sought was a claim for business or trading losses.

2 The Plaintiff claims he retained and instructed the First Defendant, a legal practitioner practicing as a solicitor in relation to an action he believed he had against the parties who failed to complete, and nine other parties (the Port Macquarie action). It is said those instructions were given on or about 20th September 2001. Almost immediately the First Defendant retained and briefed the Second Defendant, a legal practitioner practicing as a barrister, in relation to the Port Macquarie action.

3 By the following day there was a draft Statement of Claim created by the Second Defendant. Within two weeks a settled Statement of Claim was filed in Court. As events transpired it was the very last day of the six-year limitation period within which the Plaintiff was required to bring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fowler v La Fontaine & Anor

Details

AGLC: Fowler v La Fontaine [2007] NSWDC 207
Case: [2007] NSWDC 207
Decision Date: 4 October 2007

CaseChat Overview and Summary

In the matter of Fowler v La Fontaine & Anor, the plaintiff, Mr. Fowler, sought to bring a professional negligence claim against the defendants, Mr. La Fontaine and another party. The defendants sought to have the Statement of Claim struck out on the grounds that the plaintiff's claims were barred by the doctrine of advocates' immunity, which generally protects legal professionals from liability for their actions taken in the course of litigation. The case was heard in the relevant court, which had to determine whether the plaintiff's claims were indeed barred by this doctrine, and if not, whether there were any exceptions that applied.

The central legal issue the court had to decide was whether the plaintiff's claims for professional negligence were indeed barred by the doctrine of advocates' immunity. The court had to examine the scope and exceptions to this doctrine, particularly considering the nature of the plaintiff's claims and whether they fell outside the immunity provided to legal professionals. The court also needed to assess whether the claims related to conduct that occurred outside the formal litigation process, which might potentially fall outside the scope of the immunity.

The court, after a thorough analysis of the relevant legal principles and the facts of the case, determined that the plaintiff's claims were not barred by advocates' immunity. The court found that the plaintiff's allegations related to conduct that occurred outside the formal litigation process, and therefore did not fall within the protection of the immunity doctrine. Consequently, the court refused the defendants' application to strike out the Statement of Claim. The court also provided leave for the parties to approach either its associate or the Registrar to set a time and date for any costs argument if the parties could not agree upon them, and to establish a timetable for finalising the pleadings.

Orders

Orders of the court

1. Order 1 sought in the N/M d 30/5/07, and in N/M d. 21/6/07 is refused; 2. Parties have leave to approach my associate to set a time and date to argue the question of costs if they cannot be agreed upon.; 3. Parties have leave to approach the Registrar to set a timetable to finalise pleadings.

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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CITATION:	Fowler v La Fontaine & Anor [2007] NSWDC 207
HEARING DATE(S):	20 June 2007
JUDGMENT DATE:	15 October 2007
EX TEMPORE JUDGMENT DATE:	4 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	Nicholson SC DCJ at 1
DECISION:	1. Order 1 sought in the N/M d 30/5/07, and in N/M d. 21/6/07 is refused; 2. Parties have leave to approach my associate to set a time and date to argue the question of costs if they cannot be agreed upon.; 3. Parties have leave to approach the Registrar to set a timetable to finalise pleadings.
CATCHWORDS:	Civil Law - Notices of Motion - Strike-out of Statement of Claim - Claim of professional negligence by solicitor or barrister - Advocates' immunity - general rule finality of litigation - exceptions.
LEGISLATION CITED:	District Court Rules Pt 18 r 3 District Court Rules, Pt 9, r 17(1) Evidence Act 1995, s79
CASES CITED:	D’Orta-Ekenaike v Victoria Legal Aid and Another (2005) 223 CLR 1 General Steel Industries v Commissioner for Railways (1964) 64 CLR 125 Giannarelli v Wraith (1988) 165 CLR 543 Giannarelli v. The Queen (1983) 154 CLR 212 Keefe v Marks, (1989) 16 NSWLR 713
PARTIES:	Raymond John Fowler - Plaintiff/Respondant to both Notices of Motion. Peter Allan La Fontaine - First Defendant/ Applicant to second Notice of Motion Trevor Andrew Hall - Second Defendant/Applicant to first Notice of Motion.
FILE NUMBER(S):	4848/2006
COUNSEL:	Pl: P. Glissan D1: D. Priestley D2: G. Reynolds SC
SOLICITORS:	Rutland's Law Firm La Fontaine Solicitors Hall Lawyers