Day v Rogers [2011] NSWCA 124

Day v Rogers [2011] NSWCA 124

The appellant's negligence was not established as occurring from the beginning of the retainer, but arose when he drafted or settled the respondent's affidavit evidence in and after October 2004 and decided to conduct the Property (Relationships) Act 1984 claim on that evidentiary basis. That work led to, and was intimately connected with, the conduct of the case in court. It therefore fell within advocate's immunity. Although the negligence was a necessary condition of the wasted costs and, but for advocate's immunity, it would have been appropriate for liability to extend to that harm, the immunity barred the respondent's claim against the appellant.

Jurisdiction
Australia
Judgment Date
23 May 2011
Procedural Posture
Appeal From District Court Judgment in Professional Negligence Proceedings Against a Barrister / Court of Appeal; Leave to Appeal Granted and Appeal Allowed
Outcome
Appeal allowed; judgment against the appellant set aside and judgment entered for the appellant.
Legal Topics
["advocate's Immunity" 'barrister Negligence' 'wasted Costs' 'dismissal Under R 29.9 Uniform Civil Procedure Rules 2005 (nsw)' 'causation Under Civil Liability Act 2002']
['legal Practitioners' 'professional Negligence' 'civil Procedure'] ["advocate's Immunity" 'barrister Negligence' 'wasted Costs' 'dismissal Under R 29.9 Uniform Civil Procedure Rules 2005 (nsw)' 'causation Under Civil Liability Act 2002']

Case Brief

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Procedural Posture

Appeal From District Court Judgment in Professional Negligence Proceedings Against a Barrister / Court of Appeal; Leave to Appeal Granted and Appeal Allowed

Legal Issues

  1. 1 ["Whether the appellant's negligence occurred from the beginning of the retainer or later when affidavit evidence was drafted or settled for hearing." "Whether the appellant's negligence was work done in court or work done out of court leading to a decision affecting the conduct of the case in court, so as to fall within advocate's immunity." 'Whether causation was broken because the appellant did not take steps at the hearing that might have averted dismissal, or because the District Court judge allegedly erred in dismissing the proceedings.' "Whether, but for advocate's immunity, the scope of the appellant's liability would extend to the respondent's wasted costs."]

Ratio Decidendi

The appellant's negligence was not established as occurring from the beginning of the retainer, but arose when he drafted or settled the respondent's affidavit evidence in and after October 2004 and decided to conduct the Property (Relationships) Act 1984 claim on that evidentiary basis. That work led to, and was intimately connected with, the conduct of the case in court. It therefore fell within advocate's immunity. Although the negligence was a necessary condition of the wasted costs and, but for advocate's immunity, it would have been appropriate for liability to extend to that harm, the immunity barred the respondent's claim against the appellant.

Court Disposition

Appeal allowed; judgment against the appellant set aside and judgment entered for the appellant.

Orders

  • ['Appeal allowed.' 'Set aside the judgment for the plaintiff against the eighth defendant for $32,440 and in lieu thereof order that there be judgment for the eighth defendant.' "Set aside any order for the costs of the trial and order that the plaintiff pay the eighth defendant's costs." "Order that the appellant...