TOTTLE PARTNERS -v- LEWIS [2007] WADC 47

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 47
Case No:	CIV:1796/2006	Heard:	26 MARCH 2007
Coram:	DEPUTY REGISTRAR HEWITT	Delivered:	4/04/07
Location:	PERTH
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	TOTTLE PARTNERS JANET CAROLYN LEWIS HAMMOND WORTHINGTON
Catchwords:	Practice and procedure Application to strike out counterclaim Solicitors immunity from suit Principles and extent of
Legislation:	Nil
Case References:	D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 Grannarelli v Wraith [1988] 165 CLR 543 Wilson v Carter & 5 Ors; Wilson v Rigg [2005] NSWSC 1351 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : TOTTLE PARTNERS -v- LEWIS [2007] WADC 47 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 26 MARCH 2007 DELIVERED : 4 APRIL 2007 FILE NO/S : CIV 1796 of 2006 BETWEEN : TOTTLE PARTNERS

Plaintiff

AND

JANET CAROLYN LEWIS

Defendant

(BY ORIGINAL ACTION)

JANET CAROLYN LEWIS

Plaintiff by Counterclaim

TOTTLE PARTNERS

First Defendant

HAMMOND WORTHINGTON

Second Defendant

(BY COUNTERCLAIM)

(Page 2)

Catchwords:

Practice and procedure - Application to strike out counterclaim - Solicitors immunity from suit - Principles and extent of

Legislation:

Nil

Result:

Application dismissed

Representation:

Original Action

Counsel:

Plaintiff : No appearance

Defendant : In person

Solicitors:

Plaintiff : McCallum Donovan Sweeney

Defendant : Not applicable

Counterclaim

Counsel:

Plaintiff by Counterclaim : In person

First Defendant : No appearance

Second Defendant : Mr G Pynt

Solicitors:

Plaintiff by Counterclaim : Not applicable

First Defendant : McCallum Donovan Sweeney

Second Defendant : Pynt & Partners

(Page 3)

Case(s) referred to in judgment(s):

D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755
Grannarelli v Wraith [1988] 165 CLR 543
Wilson v Carter & 5 Ors; Wilson v Rigg [2005] NSWSC 1351

(Page 4)

1 DEPUTY REGISTRAR HEWITT: The application before me for determination was brought by the second defendant by a chamber summons filed on 13 February 2007. In that application the second defendant seeks that the counter-claim levelled against it be struck out pursuant to O 20 r 19(1).

2 The applicant second defendant ("Hammond Worthington") is a firm of lawyers and the claim against them relates to their conduct of an action to which the defendant Janet Carolyn Lewis ("Lewis") was a defendant.

3 The facts briefly appear to be that Lewis was a defendant to an action in the Supreme Court of Western Australia brought by one Jason Hall. Mr Hall had also commenced proceedings against the company Sunwise Innovations Pty Ltd and it appears that there were some broad points of similarity between that action and the one he was pursuing against Lewis. Lewis complains that she was advised to consolidate her proceedings with that involving Sunwise Innovations Pty Ltd, which was duly carried out, and led to the consequence that upon losing the action she became responsible for the whole of the costs of the action, including costs which may have been payable by Sunwise Innovations…

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 Tottle Partners v Lewis

Details

AGLC: Tottle Partners v Lewis [2007] WADC 47
Case: [2007] WADC 47
Decision Date: 4 APRIL 2007

CaseChat Overview and Summary

The matter before the court was an application by Tottle Partners to strike out a counterclaim brought by Lewis. Tottle Partners, a firm of solicitors, was sued by Lewis for professional negligence. In response, Lewis raised a counterclaim against Tottle Partners for breach of contract and negligence. The court was tasked with determining whether the counterclaim should be struck out on the basis of solicitors' immunity from suit.

The central issue before the court was whether the counterclaim was within the scope of the immunity from suit that solicitors traditionally enjoy. The court had to consider whether the counterclaim was essentially a claim against the solicitors for their professional services or whether it involved conduct that was extraneous to the provision of those services. The court noted that solicitors generally enjoy immunity from suit for professional services rendered in the course of their practice, but this immunity does not extend to conduct that is outside the scope of their professional duties.

The court held that the counterclaim involved conduct that was extraneous to the provision of professional services. The court found that the counterclaim was not essentially a claim for professional services but rather a claim for breach of contract and negligence, which were outside the scope of the solicitors' professional duties. Consequently, the court dismissed the application to strike out the counterclaim, ruling that the counterclaim did not fall within the traditional immunity afforded to solicitors. As a result, the application was dismissed, and Lewis was allowed to proceed with her counterclaim.

Orders

Orders of the court

Application dismissed

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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