Toth v Stewart Law Pty Ltd - [2022] NSWCA 85

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Toth v Stewart Law Pty Ltd [2022] NSWCA 85
Hearing dates: 26 May 2022
Date of orders: 7 June 2022
Decision date: 07 June 2022
Before: Macfarlan JA at [1];
White JA at [22].
Decision:
Application for leave to appeal dismissed with costs.

Catchwords:
CIVIL PROCEDURE – summary dismissal of proceedings commenced against applicant’s former legal representatives - whether an advocates’ immunity defence can form basis of a summary dismissal application – whether the defence applies to administrative aspects of the retainer

Legislation Cited:
Uniform Civil Procedure Rules 2015 (NSW), rr 13.4, 14.28, Pt 28

Cases Cited:
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Jimenez v Watson [2021] NSWCA 55
Keefe v Marks (1989) 16 NSWLR 713
Rees v Sinclair [1974] 1 NZLR 180
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Category: Principal judgment
Parties: Andrew Toth (Applicant)
Stewart Law Pty Ltd (Respondent)
Representation:
Counsel:
A Toth (self-rep)
D Lloyd SC / G Marsden
Solicitors:
Mullane & Lindsay (Respondent)

File Number(s): 2021/365744
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 1522

Date of Decision:

26 November 2021

Before:

Hamill J

File Number(s):

2020/285316

Judgment

MACFARLAN JA: The applicant, Mr Andrew Toth, is a self-represented litigant who seeks leave to appeal against a judgment dated 26 November 2021 of Hamill J of the Common Law Division. His Honour granted leave to appeal, but dismissed Mr Toth’s appeal, from an order of 3 September 2020 of Magistrate Longley of the Local Court summarily dismissing proceedings brought by Mr Toth against former legal representatives of his (the respondents).
In the statement of claim filed on 9 December 2019, by which he commenced proceedings in the Local Court, Mr Toth claimed damages from the respondents for their alleged negligence in acting as solicitors for him in connection with criminal charges on which he was ultimately acquitted. On 25 February 2020 the respondents filed a defence, relying inter alia upon the principles of advocates’ immunity expounded in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, and a notice of motion seeking summary dismissal of Mr Toth’s proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) (with an alternative prayer for the strike out of the statement of claim pursuant to r 14.28).
On 18 May 2020 Magistrate Longley gave judgment, declining to grant the orders sought in the notice of motion and instead granting leave to Mr Toth to file an amended statement of claim.
In the amended statement of…

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.

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Details

Case: [2022] NSWCA 85
Decision Date: 07 June 2022

CaseChat Overview and Summary

The applicant, Toth, sought to appeal a decision of the primary judge who had summarily dismissed proceedings commenced against his former legal representatives, Stewart Law Pty Ltd. The core of the dispute concerned whether the doctrine of advocates' immunity could be invoked as a basis for summary dismissal of the proceedings.

The appeal raised two primary legal issues for determination by the Court of Appeal. Firstly, whether the defence of advocates' immunity could properly form the basis of an application for summary dismissal of proceedings. Secondly, the Court was required to consider whether the defence of advocates' immunity extended to alleged breaches of duty relating to the administrative aspects of the legal retainer, as opposed to the conduct of litigation itself.

The Court of Appeal affirmed the primary judge's decision, holding that advocates' immunity could indeed be a valid ground for summary dismissal. Their Honours reasoned that where the alleged negligence relates to the conduct of litigation, and that conduct falls within the scope of advocates' immunity, the claim is bound to fail and therefore amenable to summary dismissal. The Court further clarified that the immunity extends to the "conduct and management of a case in litigation," which encompasses not only court appearances but also pre-trial work that is integral to the conduct of the litigation. The Court found that the applicant's claims, as pleaded, related to the conduct of litigation and were therefore covered by the immunity.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Toth v Stewart Law Pty Ltd [2022] NSWCA 85
Hearing dates:	26 May 2022
Date of orders:	7 June 2022
Decision date:	07 June 2022
Before:	Macfarlan JA at [1]; White JA at [22].
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	CIVIL PROCEDURE – summary dismissal of proceedings commenced against applicant’s former legal representatives - whether an advocates’ immunity defence can form basis of a summary dismissal application – whether the defence applies to administrative aspects of the retainer
Legislation Cited:	Uniform Civil Procedure Rules 2015 (NSW), rr 13.4, 14.28, Pt 28
Cases Cited:	Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 Jimenez v Watson [2021] NSWCA 55 Keefe v Marks (1989) 16 NSWLR 713 Rees v Sinclair [1974] 1 NZLR 180 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Category:	Principal judgment
Parties:	Andrew Toth (Applicant) Stewart Law Pty Ltd (Respondent)
Representation:	Counsel: A Toth (self-rep) D Lloyd SC / G Marsden Solicitors: Mullane & Lindsay (Respondent)
File Number(s):	2021/365744
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 1522 Date of Decision: 26 November 2021 Before: Hamill J File Number(s): 2020/285316