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Barristers Immunity

Published by in Torte - Negligence ·
Stanton v Tyler [2015] NSWSC 797


PROCEDURE – Civil – Applications for summary dismissal of or alternatively an order striking out the Amended Statement of Claim pursuant to UCPR Rule 13.4 on the basis of advocates’ immunity from suit – First and second defendants were respectively a solicitor and barrister who had conduct of plaintiff’s proceedings in a cross-claim against an Owners Corporation in the Local Court and subsequent appeal to Supreme Court and Court of Appeal – Plaintiffs in Amended Statement of Claim alleged negligence by defendants, breach of fiduciary duty, misleading and deceptive conduct and other causes of action in relation to alleged negligent advice – Relevant advice was firstly advice to pursue cross-claim proceedings in the Local Court and secondly advice to pursue appeal to the Supreme Court – Local Court had dismissed cross-claim on the basis of an expiration of limitation period and on the plaintiffs’ lack of standing – Supreme Court appeal was also dismissed. ADVOCATES’ IMMUNITY FROM SUIT – Defendants claimed no cause of action was sustainable because of the doctrine of advocate’s immunity – Relied on D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 – Plaintiffs relied on exception to doctrine where advice went to the issue of jurisdiction or locus standi to bring and pursue a cross-claim in circumstances where the alleged damage to property related to the common property on a strata plan not the plaintiff’s property – Held that whether the doctrine applied or not was a triable issue – There was a triable issue as to whether or not the legal advice was outside the scope of the doctrine because it went to the appropriate forum to commence proceedings in – The proceedings arguable did not constitute, directly or indirectly, a challenge to or traversing of the decision of the Local Court – Applications dismissed

Counsel for Plaintiff
Martin Luitingh

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