Groth v Audet [2006] NSWCA 48

Groth v Audet [2006] NSWCA 48

Section 198L(2) of the Legal Profession Act 1987 regulates the conduct of solicitors and barristers and is supported by professional disciplinary and costs sanctions directed at practitioners, not by an implied sanction invalidating the client's proceedings. Unlike s151C(1) of the Workers Compensation Act 1987 and s108(1) of the Motor Accidents Compensation Act 1999, it is not directed to the party's entitlement to commence proceedings. Accordingly, failure to file the certificate did not render the proceedings void ab initio or a nullity, and the primary judge was correct to refuse to strike them out.

Jurisdiction
Australia
Judgment Date
20 March 2006
Procedural Posture
Application for Leave to Appeal in Civil Proceedings / Court of Appeal From District Court Dismissal of a Notice of Motion to Strike Out Proceedings
Outcome
Leave to appeal granted, but the appeal dismissed with costs.
Legal Topics
['certification of Reasonable Prospects of Success' 'failure to Provide Certificate Under S198 L(2) of the Legal Profession Act 1987' 'whether Non Compliance Renders Proceedings Void Ab Initio or a Nullity' 'consequences of Breach of Statutory Procedural Requirements']
['legal Profession' 'civil Procedure' 'personal Injury Damages'] ['certification of Reasonable Prospects of Success' 'failure to Provide Certificate Under S198 L(2) of the Legal Profession Act 1987' 'whether Non Compliance Renders Proceedings Void Ab Initio or a Nullity' 'consequences of Breach of Statutory Procedural Requirements']

Case Brief

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Procedural Posture

Application for Leave to Appeal in Civil Proceedings / Court of Appeal From District Court Dismissal of a Notice of Motion to Strike Out Proceedings

Legal Issues

  1. 1 ["Whether failure by the opponent's solicitor to provide the certificate required by s198L(2) of the Legal Profession Act 1987 when filing originating process rendered the District Court proceedings void ab initio or a nullity." 'Whether the later filing of the required certificate cured the breach.' 'Whether s198L(2) is a condition precedent to the commencement of proceedings comparable to s151C(1) of the Workers Compensation Act 1987 or s108(1) of the Motor Accidents Compensation Act 1999.']

Ratio Decidendi

Section 198L(2) of the Legal Profession Act 1987 regulates the conduct of solicitors and barristers and is supported by professional disciplinary and costs sanctions directed at practitioners, not by an implied sanction invalidating the client's proceedings. Unlike s151C(1) of the Workers Compensation Act 1987 and s108(1) of the Motor Accidents Compensation Act 1999, it is not directed to the party's entitlement to commence proceedings. Accordingly, failure to file the certificate did not render the proceedings void ab initio or a nullity, and the primary judge was correct to refuse to strike them out.

Court Disposition

Leave to appeal granted, but the appeal dismissed with costs.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed with costs.']