Supreme Court
New South Wales
Medium Neutral Citation: Toth v Stewart & Associates [2021] NSWSC 1522 Hearing dates: 22 March 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Common Law Before: Hamill J Decision: (1) Extension of time to appeal granted
(2) Leave to appeal granted
(3) Appeal dismissed
(4) Plaintiff to pay the defendants’ costs
Catchwords: CIVIL LAW – advocate’s immunity - Magistrate’s order for summary dismissal - plaintiff’s claim for negligence and breach of contract against solicitors who acted in criminal proceedings - appeal against Magistrate’s order - whether Magistrate exhibited bias - whether application an abuse of process - whether Magistrate erred in conducting a “hybrid hearing” conflating immunity with summary judgment - whether Magistrate applied the wrong test - self represented litigant - not his first rodeo - allowance made for pleadings and submissions - scatter gun - whether whole of claim bound to be defeated by immunity - whether disputed facts required resolution in final hearing
Legislation Cited: Crimes Act 1900 (NSW), s 91L
Summary Offences Act 1988 (NSW), s 4(1)
Fair Trading Act 1987 (NSW)
Local Court Act 2007 (NSW) ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW) r 13.4, 14.28
Cases Cited: Attwells v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1; [2016] HCA 16
Commonwealth Bank of Australia v ZYX Learning Centres Ltd [2014] NSWSC 1676; (2014) 103 ACSR 476
Donnellan v Woodland [2012] NSWCA 433
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Golden v Koffel [2021] NSWSC 739
Keefe v Marks (1989) 16 NSWLR 713
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Macatangay v NSW (No 2) [2009] NSWCA 272
Nikolaidis v Satouris [2014] NSWCA 448; (2014) 317 ALR 761
Rees v Sinclair [1974] 1 NZLR 180
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Texts Cited: Ritchie’s Uniform Civil Procedure [13.1.65]
Category: Principal judgment Parties: Andrew Toth (Plaintiff)
Stewart & Associates (Defendant)Representation: Counsel:
Solicitors:
D Lloyd SC and S Andrews (Defendant)
Mullane & Lindsay (Defendant)
File Number(s): 2020/285316 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Local Court
- Jurisdiction:
- Civil
- Date of Decision:
- 3 September 2020
- Before:
- Longley LCM
- File Number(s):
- 2019/387639
Judgment
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By summons filed on 2 October 2020, Andrew Toth (the plaintiff) appeals and, where necessary, seeks to appeal against a decision made by Magistrate Longley in the Local Court on 3 September 2020. The Magistrate granted a notice of motion brought by his former legal representatives (the defendants) and made an order for the summary dismissal of a civil action commenced by Mr Toth against the defendants. The Magistrate decided that the cause of action pleaded by Mr Toth was untenable and destined to fail because it would inevitably be defeated by the defendants’ reliance…
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- AGLC
- Toth v Stewart and Associates [2021] NSWSC 1522
- Case
- [2021] NSWSC 1522
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case involved whether the Magistrate had exhibited bias, whether the defendant’s application constituted an abuse of process, and if the Magistrate had correctly applied the relevant legal principles in dismissing the plaintiff’s claims. Specifically, the appeal focused on whether the Magistrate had erroneously conflated the doctrine of advocate’s immunity with a summary judgment motion and whether the Magistrate had applied the appropriate legal tests in making the decision. The appeal also examined whether the entire claim should be dismissed due to immunity, considering the presence of disputed facts that required resolution in a full hearing.
The court held that the Magistrate did not exhibit bias or abuse the process in making the order. It found that the Magistrate had not conflated advocate’s immunity with summary judgment but had correctly applied the principles of advocate’s immunity. The court concluded that, given the nature of the plaintiff’s claims and the undisputed facts, the whole of the plaintiff’s claim was bound to fail due to the application of the immunity doctrine. The court also determined that the disputed facts did not necessitate a final hearing, as the immunity provided a sufficient ground for summary dismissal. The appeal was dismissed, and the Magistrate’s order for summary dismissal was upheld.
Orders
Orders of the court
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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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