Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Stillman v Rusbourne [2015] NSWCA 410 Hearing dates: 29 June 2015 Decision date: 16 December 2015 Before: Basten JA at [1]; Gleeson JA at [51]; Simpson JA at [62] Decision: Leave to appeal refused with costs.
Catchwords: NEGLIGENCE – scope of advocates’ immunity – applicant advised to settle following court ordered mediation – whether advice led to a decision affecting conduct of case in court – judgment entered pursuant to settlement – sufficient connection between advice and conduct of case in court – leave to appeal refused Legislation Cited: Civil Procedure Act 2005 (NSW), s 91
Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15, 36.16Cases Cited: Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Application of Malcolm Huntley Potier [2012] NSWCA 222
Attwells & Anor v Jackson Lalic Lawyers Pty Ltd [2015] HCATrans 176
Biggar v McLeod [1978] 2 NZLR 9
Bott v Carter [2012] NSWCA 89
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Donellan v Watson (1990) 21 NSWLR 335
Donnellan v Woodland [2012] NSWCA 433
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
In the matter of an Appeal by Luck [2003] HCA 70; 78 ALJR 177
Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342
Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335
Kendirjian v Lepore [2015] NSWCA 132
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Newmont Pty Ltd v Laverton Nickel NL (No 2) [1981] 1 NSWLR 221
Rees v Sinclair [1974] 1 NZLR 180
Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80
Swinfen v Lord Chelmsford (1860) 5 H&N 890; 157 ER 1436
Symonds v Vass [2009] NSWCA 139; 257 ALR 689Texts Cited: S Walmsley, A Abadee, B Zipser, G Sirtes, Professional Liability in Australia (3rd ed, Thomson Reuters, 2016) Category: Principal judgment Parties: Trevor James Stillman (Applicant)
Peter Edward John Rusbourne (First Respondent)
Matthew Gerard Coates (Second Respondent)
Tiana Victoria Daly (Third Respondent)
Sonja Adriana Fay Daly (Fourth Respondent)
Leanne Kylie Walker (Fifth Respondent)Representation: Counsel:
Solicitors:
G McIntyre SC/A E Maroya (Appellant)
M J Darke SC/F St John (Respondents)
Corser & Corser Lawyers (Applicant)
K&L Gates (Respondents)
File Number(s): 2014/199662 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law
- Citation:
- Stillman v Rusbourne [2014] NSWSC 730
- Date of Decision:
- 13 June 2014
- Before:
- Davies J
- File Number(s):
- 2013/209760
HEADNOTE
[This headnote is not to be read as part of the judgment]
In 2006 the applicant and Goldfields Crushing and Screening Pty Ltd (“GCS”), of which the applicant was a director and shareholder, were named as defendants in proceedings brought by Coast to Country Crushing and Screening Pty Ltd (“CCCS”) in the Equity…
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Details
- AGLC
- Stillman v Rusbourne [2015] NSWCA 410
- Case
- [2015] NSWCA 410
- Decision Date
CaseChat Overview and Summary
Stillman v Rusbourne concerned an application for leave to appeal a decision of the primary judge. The applicant, Stillman, alleged negligence against the respondent, Rusbourne, who had acted as Stillman's legal representative. The dispute arose from advice provided by Rusbourne to Stillman to settle the underlying litigation following a court-ordered mediation. A judgment was subsequently entered into the court record pursuant to this settlement.
The central legal issue before the Court of Appeal was whether the advice given by Rusbourne to settle the case, which led to a judgment being entered, fell within the scope of advocates' immunity from suit for negligence. Specifically, the court had to determine if there was a sufficient connection between the advice provided and the conduct of the case in court to attract this immunity.
The Court of Appeal reasoned that advocates' immunity extends to advice that affects the conduct of a case in court. In this instance, the advice to settle directly resulted in a judgment being entered, thereby concluding the litigation. The court found that this advice had a sufficient connection to the conduct of the case in court, as it determined the ultimate outcome and prevented further proceedings. Consequently, the court held that Rusbourne was immune from a claim of negligence in relation to this advice.
Leave to appeal was refused, and the applicant was ordered to pay the respondent's costs.
The central legal issue before the Court of Appeal was whether the advice given by Rusbourne to settle the case, which led to a judgment being entered, fell within the scope of advocates' immunity from suit for negligence. Specifically, the court had to determine if there was a sufficient connection between the advice provided and the conduct of the case in court to attract this immunity.
The Court of Appeal reasoned that advocates' immunity extends to advice that affects the conduct of a case in court. In this instance, the advice to settle directly resulted in a judgment being entered, thereby concluding the litigation. The court found that this advice had a sufficient connection to the conduct of the case in court, as it determined the ultimate outcome and prevented further proceedings. Consequently, the court held that Rusbourne was immune from a claim of negligence in relation to this advice.
Leave to appeal was refused, and the applicant was ordered to pay the respondent's costs.
Orders
Orders of the court
Leave to appeal refused with costs.
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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