WHITE v FORSTER [2015] NSWCA 245

WHITE v FORSTER [2015] NSWCA 245

The claim against the barrister accrued more than six years before he was joined because any proprietary or tracing claim over the Somersby property was foredoomed to fail at least after Gzell J's orders, so s 14 of the Limitation Act 1969 (NSW) barred that claim. The claim against the solicitor was in substance a complaint that he failed to advise on and pursue a proprietary remedy in the earlier proceedings; the joinder of Mrs Thompson was ancillary to that forensic choice. That work was done out of court but directly affected the conduct of the case in court and was protected by advocate's immunity. The primary judge was therefore correct to strike out the statement of claim, and leave...

Jurisdiction
Australia
Judgment Date
25 August 2015
Procedural Posture
Application for Leave to Appeal / Court of Appeal From Supreme Court of New South Wales Orders Striking Out Professional Negligence Claims
Outcome
Leave to appeal refused with costs
Legal Topics
["advocate's Immunity" 'strike Out' 'statute Barred Proceedings' 'loss of Chance' 'tracing Claim' 'abuse of Process']
['civil Law' 'professional Negligence' 'limitation of Actions' 'civil Procedure'] ["advocate's Immunity" 'strike Out' 'statute Barred Proceedings' 'loss of Chance' 'tracing Claim' 'abuse of Process']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal / Court of Appeal From Supreme Court of New South Wales Orders Striking Out Professional Negligence Claims

Legal Issues

  1. 1 ['Whether the professional negligence claim against the barrister was statute-barred under s 14 of the Limitation Act 1969 (NSW).' "Whether the claims against the solicitor were barred by advocate's immunity from suit." 'Whether the alleged failure to join Mrs Thompson and plead a tracing or proprietary claim was work intimately connected with the conduct of the earlier proceedings in court.']

Ratio Decidendi

The claim against the barrister accrued more than six years before he was joined because any proprietary or tracing claim over the Somersby property was foredoomed to fail at least after Gzell J's orders, so s 14 of the Limitation Act 1969 (NSW) barred that claim. The claim against the solicitor was in substance a complaint that he failed to advise on and pursue a proprietary remedy in the earlier proceedings; the joinder of Mrs Thompson was ancillary to that forensic choice. That work was done out of court but directly affected the conduct of the case in court and was protected by advocate's immunity. The primary judge was therefore correct to strike out the statement of claim, and leave...

Court Disposition

Leave to appeal refused with costs

Orders

  • ['Leave to appeal refused with costs']