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Toth v Stewart and Associates

Toth v Stewart and Associates

Case [2021] NSWSC 1522 26 November 2021

Civil Litigation & Procedure

Contract Law

Tort Law

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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
Young v Hones [2014] NSWCA 337

Texts Cited:
Ritchie’s Uniform Civil Procedure [13.1.65]

Category: Principal judgment
Parties: Andrew Toth (Plaintiff)
Stewart & Associates (Defendant)
Representation:
Counsel:
D Lloyd SC and S Andrews (Defendant)
Solicitors:
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

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…

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 Toth v Stewart and Associates

Details

AGLC: Toth v Stewart and Associates [2021] NSWSC 1522
Case: [2021] NSWSC 1522
Decision Date: 26 November 2021

CaseChat Overview and Summary

Toth, the plaintiff, initiated legal proceedings against Stewart and Associates, the defendant, asserting claims of negligence and breach of contract concerning the defendant’s representation in criminal proceedings. The defendant solicitors sought a summary dismissal, arguing that the plaintiff’s claims were covered by advocate’s immunity, which protects legal practitioners from liability for their professional actions. The Magistrate granted the defendant’s application for summary dismissal, leading to the plaintiff’s appeal against the decision.

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