Stanton v Tyler [2015] NSWSC 797

Supreme Court New South Wales

Medium Neutral Citation: Stanton v Tyler [2015] NSWSC 797 Hearing dates: 22 May 2015 Decision date: 19 June 2015 Jurisdiction: Common Law Before: Hall J Decision: (1) The Amended Notice of Motion filed on behalf of the First Defendant, Rosana Tyler, on 20 February 2015, is dismissed.

(2) The Notice of Motion filed on behalf of the Second Defendant, Lucinda Wilson, on 27 February 2015, is dismissed.

(3) I grant leave for the parties to make any application in respect of orders as to costs or other ancillary matters. Catchwords: 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 Legislation Cited: Fair Trading Act 1987 Legal Profession Act 2004 Strata Schemes Management Act 1996 Trade Practices Act 1974 (Cth) Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Donellan v Watson (1990) 21 NSWLR 335 Donnellan v Woodland [2012] NSWCA 433 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 Heydon v NRMA Ltd (2000) 51 NSWLR 1 Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 Keefe v Marks (1989) 16 NSWLR 713 MacRae v Stevens [1996] Aust Torts Reports 81-405 Nicole Stanton v The Owners of Strata Plan 60724 [2010] NSWSC 175 Rees v Sinclair [1974] 1 NZLR 180 Saif Ali v Sydney Mitchell & Co [1980] AC 198 Symonds v Vass [2009] NSWCA 139; 257 ALR 689 Yates Property Corporation Limited v Boland (1997) 145 ALR 169 Young v Hones [2014] NSWSC 337 Category: Procedural and other rulings Parties: Nicole Stanton (First Plaintiff/Respondent) Denise Olender (Second Plaintiff/Respondent) Steven Olender (Third Plaintiff/Respondent) Rosana Celina Tyler (First Defendant/Applicant) Lucinda Wilson (Second Defendant/Applicant) Representation: Counsel: M Luitingh (Respondents) DA Lloyd (Applicant) PA Horvath (Applicant)