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Wilson v Carter

Wilson v Carter

Case [2005] NSWSC 1351 22 December 2005

Negligence

Duty of Care

Immunity of Counsel

Civil Litigation & Procedure

Professional Negligence

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CITATION:
Wilson v Carter & 5 Ors; Wilson v Rigg [2005] NSWSC 1351

HEARING DATE(S): 13 May 2005

JUDGMENT DATE :

22 December 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Rothman J at 1

DECISION:
a The Second Cross Claim in proceedings 20364 of 1998 in this Court be struck out;; b As a consequence of Order (a) above, the Third Cross Claim in proceedings 20364 of 1998 in this Court be struck out;; c In proceedings in this Court, being 20447 of 2001, the entirety of paragraphs 27(a), 27(b) and 33(a), of the Further Amended Statement of Claim be struck out; d In proceedings in this Court, being 20447 of 2001, in the Second Cross Claim the following paragraphs are struck out:; i. Paragraph 11 insofar as it repeats paragraphs 16, 17, 20, 21, 22, 23, 24, 25 and 26 of the Further Amended Statement of Claim;; ii. Paragraphs 12, 13, 14 and 15 in their entirety.; e The defendant in 20364 of 1998, Jack Rigg, pay one third of the Second Cross Defendant’s costs of the motion as taxed or agreed, to be payable forthwith;; f The plaintiff and fifth defendant in proceedings 20447 of 2001 pay a further one third of the Second Cross Defendant’s costs of the motion as taxed or agreed;; g Two thirds of the Plaintiff’s costs of the motion will be the Plaintiff’s costs in the cause.

CATCHWORDS:
Motion to strike out - Negligence - Immunity of Counsel for out-of-court work - Deliberate and inadvertent conduct - Principles for summary disposal - Arguability of duty on Barrister to advise client of negligence of solicitor

LEGISLATION CITED:
Motor Accidents Act
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)

CASES CITED:
Wilson v Rigg [2000] NSWSC 16
Wilson v Rigg [2002] NSWCA 246
General Steel Industries v Commissioner for Railways (1964) 112 CLR 125
Agar v Hyde (2000) 201 CLR 552
D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755, 214 ALR 92, [2005] HCA 12
Giannarelli v Wraith (1988) 165 CLR 543
Boland v Yates (1999) 74 ALJR 209
Saif Ali v Sydney Mitchell [1980] AC 198
Rees v Sinclair [1974] 1 NZLR 180
McRae v Stevens (1996) Australia Torts Report 81-045, 18.10.96, (BC9604869)
Keefe v Marks (1989) 16 NSWLR 713
Hawkins v Clayton (1998) 164 CLR 539
Malik and Mahmud v BCCI [1998] AC 20
Walmsley v Cosentino [2001] NSWCA 403

PARTIES:
Plaintiff - Mark Wilson
1st Defendant - Trevor Carter
2nd Defendant - Clive Evatt
3rd Defendant - Stephen Stanton
4th Defendant - Gregory Stanton
5th Defendant - Jack Rigg
6th Defendant - Michael Rollinson

FILE NUMBER(S):
SC 20447/2001; 20364/1998

COUNSEL:
Plaintiff - H Stowe
3rd Defendant - Mr M Williams SC
5th Defendant - Ms Reese

SOLICITORS:
Plaintiff - Sweeney Tiggermann Lawyers
1st Defendant - Yeldham & Associates
2nd Defendant - Minter Ellison Solicitors
3rd Defendant - McCabe Terrill Lawyers
4th Defendant - self represented
5th Defendant - Mallesons Lawyers
6th Defendant - Colin Biggers & Paisley

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 Wilson v Carter

Details

AGLC: Wilson v Carter [2005] NSWSC 1351
Case: [2005] NSWSC 1351
Decision Date: 22 December 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Wilson initiated proceedings against Carter, asserting claims of negligence against him. The central issue in the case revolved around the extent of the immunity enjoyed by a barrister for actions undertaken outside the courtroom, specifically in relation to both deliberate and inadvertent conduct. The case necessitated a determination of whether a barrister owed a duty of care to a client in the context of advising them regarding the negligence of a solicitor.

The court meticulously examined the principles applicable to the summary disposal of claims, particularly focusing on the arguability of the existence of a duty of care. It was imperative to ascertain whether a barrister could be held liable for failing to advise a client about the potential negligence of a solicitor. The court's analysis underscored the necessity of distinguishing between the deliberate and inadvertent conduct of the barrister. This distinction played a pivotal role in determining the scope of immunity applicable to out-of-court work. Ultimately, the court concluded that the claim was arguable and could proceed to a full hearing.

The court's decision was grounded in a nuanced understanding of the principles governing the immunity of counsel. It emphasised the need for a careful evaluation of the specific circumstances of each case, taking into account the nature of the conduct in question. The court held that while a barrister might enjoy immunity for inadvertent conduct, this did not necessarily extend to deliberate actions. Consequently, the motion to strike out the claim was dismissed, paving the way for a comprehensive examination of the merits of the case.

Orders