Groth v Audet

The parties in this matter were Groth and Audet. The dispute concerned the consequences of a failure to provide a certificate as required by section 198L(2) of the *Legal Profession Act 1987* (NSW). The case was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether proceedings were void *ab initio* due to the failure to provide the requisite certificate, whether this failure could be cured by subsequent provision of the certificate, and whether section 198L(2) constituted a condition precedent to the commencement of proceedings, considering the legislative purpose of the section.

The Court reasoned that section 198L(2) imposed a mandatory requirement for the provision of a certificate before proceedings could be commenced. The failure to comply with this requirement meant that the proceedings were a nullity from their inception. The Court held that the legislative purpose of section 198L was to ensure that certain claims were properly considered and certified before litigation commenced, and this purpose would be undermined if a failure to comply could be retrospectively cured. Consequently, the Court found that the failure to provide the certificate could not be rectified by its subsequent provision.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.