Groth v Audet

[2006] NSWCA 48

Reported Decision: 65 NSWLR 388

Court of Appeal

CITATION:	Groth v Audet [2006] NSWCA 48 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Monday 6 March 2006
JUDGMENT DATE:	20 March 2006
JUDGMENT OF:	Mason P at 1; Tobias JA at 2; Basten JA at 36
DECISION:	Leave to appeal granted, but the appeal itself dismissed with costs.
CATCHWORDS:	LEGAL PROFESSION ACT 1987 - certification requirement under s198L(2) - certificate not provided - consequence of breach - whether proceedings void ab initio - whether failure to provide certificate can be cured by subsequent provision - whether s198L(2) is a condition precedent to commencement of proceedings - legislative purpose of s198L
LEGISLATION CITED:	Civil Liability Act 2002 District Court Act 1973 District Court Rules 1973 Legal Profession Act 1987 ss 37, 127, 198J, 198K, 198L, 198M, 208P Legal Profession Act 2004 Limitation Act 1969 Motor Accidents Compensation Act 1999 s108 Uniform Civil Procedure Rules Workers Compensation Act 1987 ss 151C, 151D
CASES CITED:	Carroll v Mijovich (1991) 25 NSWLR 441 Dandashli v Dandashli (Court of Appeal, 16 December 1996, Unreported) Diaz v Truong [2002] NSWCA 265 Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 Mealing v P Chand (2003) 57 NSWLR 305 Morrison v Judd (Court of Appeal, 10 October 1995, Unreported) Nominal Defendant v Manning (2000) 50 NSWLR 139 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Sydney Ports Corporation v Collins (2003) 56 NSWLR 232
PARTIES:	Cheryl Groth Louise Audet
FILE NUMBER(S):	CA 40401/05
COUNSEL:	Cl: P Garling SC / P A Regattien Opp: R Toner SC
SOLICITORS:	Cl: Jones Staff & Co, Sydney Opp: Griffiths Tierney, Bega
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 43/02 (Bega); DC 4858/04 (Sydney)
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	06/03/2006

CA 40401/05
DC 43/02 (Bega)
DC 4858/04 (Sydney)

MASON P
TOBIAS JA
BASTEN JA

Monday 20 March 2006

CHERYL GROTH v LOUISE AUDET

Facts:

Section 198L of the Legal Profession Act 1987, which has now been replaced by s347 of the Legal Profession Act 2004, provided inter alia that a solicitor or barrister cannot file an originating process or defence for damages unless he or she certifies that there are grounds for believing the claim or defence, as the case may be, has reasonable prospects of success.

The opponent’s solicitor failed to provide this certificate when filing the opponent’s originating documents in the District Court. Because of this breach, the claimant sought to have the proceedings struck out on the basis that they were void ab initio or a nullity. Armitage DCJ held that the initial breach of s198L was cured when the opponent’s solicitor subsequently filed the required certificate.

Held, granting leave to appeal and…