Fowler v La Fontaine & Anor [2007] NSWDC 207

Fowler v La Fontaine & Anor [2007] NSWDC 207

The strike-out application is refused as there are arguable issues regarding the applicability of advocates' immunity to the plaintiff's claims, particularly relating to costs and acts arguably outside the retainer; the drastic remedy of striking out the statement of claim is not appropriate where the immunity is not unarguable and viable causes of action may exist.

Parties
Plaintiff / Respondent to Both Notices of Motion: Raymond John Fowler; First Defendant / Applicant to Second Notice of Motion: Peter Allan La Fontaine; Second Defendant / Applicant to First Notice of Motion: Trevor Andrew Hall
Jurisdiction
Australia
Judgment Date
15 October 2007
Procedural Posture
Civil / Notice of Motion to Strike Out Statement of Claim
Outcome
Strike-out of Statement of Claim refused; procedural orders made.
Legal Topics
Professional Negligence, Advocates' Immunity, Strike Out of Pleadings, Finality of Litigation, Exceptions to Immunity
Civil Law Professional Negligence Advocates' Immunity Strike Out of Pleadings Finality of Litigation Exceptions to Immunity

Case Brief

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Parties

Raymond John Fowler

Plaintiff / Respondent to Both Notices of Motion

Peter Allan La Fontaine

First Defendant / Applicant to Second Notice of Motion

Trevor Andrew Hall

Second Defendant / Applicant to First Notice of Motion

Procedural Posture

Civil / Notice of Motion to Strike Out Statement of Claim

Legal Issues

  1. 1 Whether advocates' immunity applies to professional negligence claims in circumstances where the litigation did not progress to a hearing on the merits
  2. 2 Whether the alleged acts by the defendants fall outside the scope of immunity
  3. 3 Whether the plaintiff's claim discloses a viable cause of action or is so untenable it should be struck out

Ratio Decidendi

The strike-out application is refused as there are arguable issues regarding the applicability of advocates' immunity to the plaintiff's claims, particularly relating to costs and acts arguably outside the retainer; the drastic remedy of striking out the statement of claim is not appropriate where the immunity is not unarguable and viable causes of action may exist.

Court Disposition

Strike-out of Statement of Claim refused; procedural orders made.

Orders

  • Order 1 sought in the N/M dated 30/5/07 and 21/6/07 is refused.
  • Parties have leave to approach the Associate to set a time and date to argue the question of costs if not agreed.