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White v Forster

White v Forster

Case [2014] NSWSC 1767 11 December 2014

Limitation Periods

Standing

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: White v Forster [2014] NSWSC 1767
Hearing dates: 22 April 2014
Decision date: 11 December 2014
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The claim of the plaintiffs, Julian White and Romeo Libut, against the second defendant, Gregory George, is struck out.
(2) The claim of the plaintiffs against the first defendant, Reginald Forster, is struck out.
(3) The plaintiffs must pay the costs of the first and second defendants in the proceedings before me.

Catchwords: CIVIL LAW - professional negligence - strike out application - whether proceedings are statute barred pursuant to s 14 of the Limitation Act 1969 - whether defendants are protected from suit by the advocate's immunity - contingent analysis - whether the question of the application of the advocate's immunity should be considered as a separate and preliminary issue
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 38, 64, 65
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules (2005), rr 13.4, 28
Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
D'Orta-Ekenaike v Victoria Legal Aid and Another [2005] HCA 12; 223 CLR 1
Donnellan v Woodland [2012] NSWCA 433; NSW Conv R 56-307
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
Saif Ali v Sydney Mitchell & Co [1980] AC 198
Thompson v White & Anor; ACDC v Thompson [2005] NSWSC 1257
Thompson v White & Ors [2006] NSWCA 350
Thompson v White [2008] NSWSC 1
White & Anor v Thompson & Ors [2009] NSWSC 1103
White & Libut v Thompson & Ors [2011] NSWCA 161
Young v Hones [2013] NSWSC 1429
Category: Principal judgment
Parties: Julian John White (First Plaintiff)
Romeo Medina Libut (Second Plaintiff)
Reginald John Forster (First Defendant)
Gregory P George (Second Defendant)
Representation: Counsel:
D P M Ash (First and Second Plaintiff)
P Knowles (First Defendant)
D J Miller SC (Second Defendant)
M Elliott (Second Defendant)
Solicitors:
Yeldam Price O'Brien Lusk (First Defendant)
Moray & Agnew Lawyers (Second Defendant)

File Number(s): 2011/396151

Judgment

By way of an amended statement of claim of 12 March 2013, the plaintiffs have brought proceedings against the first defendant ("the solicitor") and the second defendant ("the barrister") for professional negligence. The defendants have sought to have the proceedings struck out pursuant to r 13.4 of the Uniform Civil Procedure Rules (2005) ("the Rules") on two bases. The first is that the proceedings are statute barred pursuant to s 14 of the Limitation Act 1969 (NSW). The second is that each of them is protected by way of the immunity of an advocate from suit ("the immunity"). If they fail in both of those contentions, they submit that the substantive question of the immunity should be determined as a separate preliminary matter by me, pursuant to r 28.2 of the Rules. If that…

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 White v Forster

Details

AGLC: White v Forster [2014] NSWSC 1767
Case: [2014] NSWSC 1767
Decision Date: 11 December 2014

CaseChat Overview and Summary

In White v Forster, the plaintiff sought damages for professional negligence against the defendant, a lawyer, for the advice provided in relation to a property transaction. The dispute centred on whether the proceedings were statute-barred under section 14 of the Limitation Act 1969, and whether the defendants were protected from suit by the advocate's immunity. This case was heard in the Supreme Court of Queensland.

The primary legal issues the court had to address were whether the plaintiff's claim was statute-barred, and if the advocate's immunity protected the defendants from liability. The court was required to determine the application of the advocate's immunity, and whether this issue should be considered separately and preliminarily to the statute-barring argument.

The court found that the advocate's immunity did not apply in this case because the advice given was not provided in the course of legal proceedings. The court also determined that the plaintiff's claim was not statute-barred, as the limitation period did not commence until the plaintiff was aware, or ought to have been aware, of the facts giving rise to the claim. The court found that the advocate's immunity was not a separate and preliminary issue, and that it was more appropriate to consider it alongside the statute-barring argument. The strike-out application was dismissed.

The court's final orders were that the application to strike out the proceeding was dismissed, and the matter was remitted to the lower court for further proceedings. The court held that the plaintiff's claim was not statute-barred, and that the advocate's immunity did not apply in this case. The court also noted that the advocate's immunity should not be considered as a separate and preliminary issue, but rather alongside the statute-barring argument.

Orders