Day v Rogers [2011] NSWCA 124

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Day v Rogers [2011] NSWCA 124 Hearing dates: 2 March 2011 Decision date: 23 May 2011 Before: Allsop P at [1], Giles JA at [4], Sackville AJA at [151] Decision: 1. Appeal allowed. 2. 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. 3. Set aside any order for the costs of the trial and order that the plaintiff pay the eighth defendant's costs. 4. Order that the appellant pay the respondent's costs of the application for leave to appeal and the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LEGAL PRACTITIONERS - Professional negligence - barrister - wasted costs - failure to advise on necessary content of affidavit evidence - negligence not in issue - proceedings dismissed under r 29.9 Uniform Civil Procedure Rules (NSW) 2005 - on facts, negligence at and from time affidavits were prepared - work done drafting or settling affidavits led to decision affecting conduct of the case in court - decision to conduct case on the affidavits as prepared - negligence within advocate's immunity - whether causation broken because barrister did not take steps at hearing which might have averted dismissal - or because judge erred in dismissal - appropriate for the scope of liability to extend to the harm so caused - but for advocate's immunity scope, liability would extend to wasted costs - respondent to pay appellant's costs Legislation Cited: Civil Procedure Act 2005 De Facto Relationships Act 1984 Legal Profession Act 1987 Property (Relationships) Act 1984 Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311; Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360; Coshott v Barry [2009] NSWCA 34; Dancor Pty Ltd v Pagotto [2008] NSWSC 112; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711; Khan v Hadid [2007] NSWSC 314; Kardos v Sarbett [2006] NSWCA 11; Keefe v Marks (1989) 16 NSWLR 713; Manns v Kennedy [2007] NSWCA 217; Paino v Paino [2008] NSWCA 276; [2008] 40 Fam LR 96; Philip Walton v Efato Pty Ltd [2008] NSWCA 86, Coshott v Barry [2009] NSWCA 34; Symonds v Vass [2009] NSWCA 139; Vitali v Stachnik [2001] NSWSC 408; Wilson v Carter [2005] NSWSC 1351. Category: Principal judgment Parties: David Day - Appellant Keith Rogers - Respondent Representation: B W Walker SC & K Barrett - Appellant J Fernon SC & T Boyd - Respondent Kennedys - Appellant Luke Clarke, Canowindra - Respondent File Number(s): CA 2010/009902 Decision under appeal Citation: Rogers v Niven & Ors, District Court, 18 December 2009, unreported. Date of Decision: 2009-12-18 00:00:00 Before: Rolfe DCJ File Number(s): DC 2862/09