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, 28Cases 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 1429Category: 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…
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- White v Forster [2014] NSWSC 1767
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- [2014] NSWSC 1767
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CaseChat Overview and Summary
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.
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