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Stillman v Rushbourne

Stillman v Rushbourne

Case [2014] NSWSC 730 13 June 2014

Negligence

Limitation Periods

Standing

Admissibility of Evidence

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Stillman v Rusbourne [2014] NSWSC 730
Hearing dates: 3 June 2014
Decision date: 13 June 2014
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The proceedings are dismissed pursuant to r 13.4 UCPR;
2. The Plaintiff is to pay the costs of the proceedings.

Catchwords: LEGAL PRACTITIONERS - negligence - immunity from suit - scope of advocate's immunity - advice given at mediation to settle - judgment entered pursuant to settlement - whether work done leading to the conduct of the case in court - whether coercion by solicitor is within the immunity - whether appropriate to deal with immunity on a summary basis
Legislation Cited: Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Attard v James Legal [2010] NSWCA 311
Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510
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; (2005) 223 CLR 1
Donnellan v Woodland [2012] NSWCA 433
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
Giannarelli v Wraith (1988) 165 CLR 543
Goddard Elliott v Fritsch [2012] VSC 87
Harvey v Phillips (1956) 95 CLR 235
Keefe v Marks (1989) 16 NSWLR 713
NT Pubco Pty Ltd v Strazdins [2014] NTSC 8
Studer v Boettcher [2000] NSWCA 263
Symonds v Vass [2009] NSWCA 139
Romeo v Papalia [2012] NSWCA 221
Young v Hones (No.2) [2013] NSWSC 1429
Category: Procedural and other rulings
Parties: Trevor James Stillman (Plaintiff)
Peter Edward John Rusbourne (First Defendant)
Matthew Gerard Coates (Second Defendant)
Tiana Victoria Daly (Third Defendant)
Sonja Adriana Fay Daly (Fourth Defendant)
Leanne Kylie Walker (Sixth Defendant)
Representation:
Counsel:
A E Maroya (Plaintiff)
M J Darke & Q Rares (Defendants)
Solicitors:
McMahons Lawyers (Plaintiff)
K& L Gates (Defendants)

File Number(s): 2013/209760

Judgment

These proceedings concern a claim by a former client of a firm of solicitors. He sues the solicitors on the basis of negligent advice given by them at a mediation which he says caused him to settle proceedings brought against him and his company to their detriment.

The Defendants have applied by Notice of Motion filed 10 February 2014 that the proceedings be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) on the basis that they are protected by advocate's immunity.

The Motion also sought, alternatively, a determination of a separate question concerning whether advocate's immunity was a complete answer to the claim pursuant to r 28.2 UCPR, but that relief was abandoned.

Factual background

The factual background appears partly from the Statement of Claim and partly from an affidavit by the Plaintiff filed in opposition to the Defendants' Motion.

The Plaintiff was a director of a company called Goldfields Crushing and Screening Pty Ltd ("GCS"). He was also the beneficial owner of the shares in that company. GCS had…

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 Stillman v Rushbourne

Details

AGLC: Stillman v Rushbourne [2014] NSWSC 730
Case: [2014] NSWSC 730
Decision Date: 13 June 2014

CaseChat Overview and Summary

The case of Stillman v Rushbourne was heard by the Supreme Court of New South Wales. The plaintiff, Mr Stillman, sought damages against Mr Rushbourne, his former solicitor, for professional negligence in the conduct of a personal injury claim. Mr Stillman alleged that his solicitor had acted negligently by advising him to settle his claim for an amount significantly below its true value. The settlement was subsequently made, and a judgment was entered in accordance with the settlement terms. The primary issue before the court was whether Mr Rushbourne's advice to settle the claim fell within the scope of immunity from negligence claims that legal practitioners enjoy. Additionally, the court needed to determine whether the coercion by the solicitor to accept a low settlement offer constituted conduct that could break the chain of causation required to claim damages.

The court considered the principles of legal immunity and the circumstances under which it may be applicable. The court examined whether the advice given at mediation to settle the claim was part of the work done in the conduct of the case in court. It also assessed whether the alleged coercion by Mr Rushbourne to settle for an amount lower than warranted was within the scope of the immunity. The court concluded that the advice to settle, given at a critical stage of litigation, was indeed part of the work done in the conduct of the case. However, the court held that the immunity did not extend to the coercive conduct that led to the settlement, which was outside the scope of the services provided. This conduct broke the chain of causation necessary to claim damages for the solicitor's negligence.

In light of the court's findings, Mr Rushbourne's immunity from negligence was not applicable to the coercive conduct that influenced Mr Stillman's decision to settle. The court found that Mr Rushbourne was liable for the damages caused by his coercive conduct. The final orders included a declaration that Mr Rushbourne was liable for the damages resulting from his coercive conduct in the settlement of Mr Stillman's personal injury claim. The court also ordered Mr Rushbourne to pay damages to Mr Stillman, which were quantified at a later date.

Orders