Kendirjian v Lepore [2015] NSWCA 132

Kendirjian v Lepore [2015] NSWCA 132

The respondents' alleged negligent advice or omission to advise in relation to the settlement offer was out of court conduct that led to the applicant continuing the District Court hearing. Applying D'Orta-Ekenaike and Donnellan, that conduct affected the conduct of the case in court and was protected by advocate's immunity. The applicant's proposed negligence claim would also require re-examination of issues relevant to the personal injury judgment, including the proper range of damages and credibility findings, so the rationale of finality was not inapplicable.

Jurisdiction
Australia
Judgment Date
21 May 2015
Procedural Posture
Application for Leave to Appeal and Appeal From Summary Dismissal of Professional Negligence Proceedings / Court of Appeal From District Court of New South Wales Decision in Kendirjian V Lepore [2014] NSWDC 66
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
["advocate's Immunity" 'settlement of Proceedings' 'summary Dismissal' 'leave to Appeal' 'finality of Litigation']
['negligence' 'professional Negligence' 'civil Procedure'] ["advocate's Immunity" 'settlement of Proceedings' 'summary Dismissal' 'leave to Appeal' 'finality of Litigation']

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Procedural Posture

Application for Leave to Appeal and Appeal From Summary Dismissal of Professional Negligence Proceedings / Court of Appeal From District Court of New South Wales Decision in Kendirjian V Lepore [2014] NSWDC 66

Legal Issues

  1. 1 ["Whether the respondents' alleged failure to advise the applicant of the amount of a settlement offer and to obtain instructions before rejecting it was protected by advocate's immunity." 'Whether the alleged out of court conduct was sufficiently connected with the District Court hearing to fall within the immunity for work leading to a decision affecting the conduct of the case in court.' 'Whether denying or applying immunity depended on whether the later negligence claim would offend the principle of finality in the particular case.']

Ratio Decidendi

The respondents' alleged negligent advice or omission to advise in relation to the settlement offer was out of court conduct that led to the applicant continuing the District Court hearing. Applying D'Orta-Ekenaike and Donnellan, that conduct affected the conduct of the case in court and was protected by advocate's immunity. The applicant's proposed negligence claim would also require re-examination of issues relevant to the personal injury judgment, including the proper range of damages and credibility findings, so the rationale of finality was not inapplicable.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Direct the applicant to file and serve his Notice of Appeal within seven days of the date of this judgment.' 'Dismiss the appeal.' "Order the applicant to pay the respondents' costs of the application for leave to appeal and the appeal."]