Cairncross v Anderson t/as ERA Legal [2016] NSWSC 258

Cairncross v Anderson t/as ERA Legal [2016] NSWSC 258

The appropriate disposition was to adjourn the strike out motion part-heard because there was a reasonable circumstantial case that the High Court would undertake a substantial reconsideration of advocate's immunity in Attwells, judgment was expected shortly, the motion depended on those principles, determining it immediately was not necessary for the just, quick and cheap resolution of the proceedings, and an immediate strike out could create an unfair limitation risk if the common law later changed.

Jurisdiction
Australia
Judgment Date
17 March 2016
Procedural Posture
Notice of Motion to Strike Out an Amended Statement of Claim in Proceedings Alleging Negligent Legal Advice / Interlocutory Motion Adjourned Part Heard Pending High Court Determination in Attwells
Outcome
The notice of motion was adjourned part-heard before Button J; costs incurred to date were reserved; the matter was listed for directions.
Legal Topics
['strike Out Application' 'negligent Legal Advice' "advocate's Immunity Against Suit" 'adjournment Pending High Court Appeal' 'just, Quick and Cheap Resolution' 'limitation Period Risk']
['civil Procedure' 'legal Professional Negligence' "advocate's Immunity" 'limitation of Actions'] ['strike Out Application' 'negligent Legal Advice' "advocate's Immunity Against Suit" 'adjournment Pending High Court Appeal' 'just, Quick and Cheap Resolution' 'limitation Period Risk']

Case Brief

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Procedural Posture

Notice of Motion to Strike Out an Amended Statement of Claim in Proceedings Alleging Negligent Legal Advice / Interlocutory Motion Adjourned Part Heard Pending High Court Determination in Attwells

Legal Issues

  1. 1 ["Whether the plaintiff's claim was doomed to failure because of advocate's immunity against suit" 'Whether the alleged negligent advice and failings occurred in the conduct of litigation or preparation for litigation' "Whether the notice of motion should be determined on existing law or adjourned part-heard pending the High Court's decision in Attwells" "Whether an adjournment was appropriate having regard to possible reconsideration of advocate's immunity and possible limitation consequences"]

Ratio Decidendi

The appropriate disposition was to adjourn the strike out motion part-heard because there was a reasonable circumstantial case that the High Court would undertake a substantial reconsideration of advocate's immunity in Attwells, judgment was expected shortly, the motion depended on those principles, determining it immediately was not necessary for the just, quick and cheap resolution of the proceedings, and an immediate strike out could create an unfair limitation risk if the common law later changed.

Court Disposition

The notice of motion was adjourned part-heard before Button J; costs incurred to date were reserved; the matter was listed for directions.

Orders

  • ['The hearing of the notice of motion of 2 September 2015 is adjourned part-heard before me.' 'The costs of the motion incurred to date are reserved.' 'The matter is listed for directions at 9 AM before the Common Law Registrar on 24 March 2016.']