Cairncross v Anderson t/as ERA Legal (No 2) [2016] NSWSC 1326

Cairncross v Anderson t/as ERA Legal (No 2) [2016] NSWSC 1326

Taking the plaintiff's case at its highest, the Court was not satisfied that advocate's immunity made the negligence claim doomed to failure. The plaintiff's claim was not founded on ERA Legal's limited appearance resisting settlement in the Victorian proceedings or on out-of-court work functionally and intimately connected with that appearance. In relation to the NSW proceedings, any possible application of the special category of consent orders left open in Attwells was uncertain, and the alleged advice, including advice to discontinue loan repayments, could not be shown on the material to be functionally and intimately connected with a judicial determination. The strike out motion was...

Jurisdiction
Australia
Judgment Date
20 September 2016
Procedural Posture
Civil Procedure Strike Out Application in a Claim Alleging Negligent Legal Advice / Notice of Motion by the Defendants to Strike Out the Plaintiff's Claim on the Basis of Advocate's Immunity
Outcome
The defendants' notice of motion to strike out the plaintiff's claim was dismissed; costs were reserved.
Legal Topics
['strike Out Application' "advocate's Immunity" 'negligent Legal Advice' 'work Done Out of Court' 'consent Orders' 'representative Proceedings']
['civil Procedure' 'professional Negligence' 'legal Profession'] ['strike Out Application' "advocate's Immunity" 'negligent Legal Advice' 'work Done Out of Court' 'consent Orders' 'representative Proceedings']

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

Civil Procedure Strike Out Application in a Claim Alleging Negligent Legal Advice / Notice of Motion by the Defendants to Strike Out the Plaintiff's Claim on the Basis of Advocate's Immunity

Legal Issues

  1. 1 ["Whether the plaintiff's negligence claim against ERA Legal was doomed to failure because of advocate's immunity from suit." 'Whether alleged negligent advice and conduct by ERA Legal out of court had the requisite functional and intimate connection with work in court or a judicial determination.' "Whether ERA Legal's roles in the NSW proceedings and the Victorian proceedings could attract advocate's immunity, including in relation to discontinuance by consent requiring court approval."]

Ratio Decidendi

Taking the plaintiff's case at its highest, the Court was not satisfied that advocate's immunity made the negligence claim doomed to failure. The plaintiff's claim was not founded on ERA Legal's limited appearance resisting settlement in the Victorian proceedings or on out-of-court work functionally and intimately connected with that appearance. In relation to the NSW proceedings, any possible application of the special category of consent orders left open in Attwells was uncertain, and the alleged advice, including advice to discontinue loan repayments, could not be shown on the material to be functionally and intimately connected with a judicial determination. The strike out motion was...

Court Disposition

The defendants' notice of motion to strike out the plaintiff's claim was dismissed; costs were reserved.

Orders

  • ['The notice of motion of the defendant of 2 September 2015 is dismissed.' 'Costs reserved.' 'The matter is listed for directions before the Common Law Registrar at 9 AM on 27 September 2016.']