Smith & Anor v McCUSKER Qc

[2001] WASCA 85

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeal
3. › Recall of orders
4. › Orders not perfected or acted upon
5. › Application to set aside on ground party not heard on relevant matters
6. › Whether reasons contained errors warranting recall
7. › Whether jurisdiction to recall should be exercised
1. Practice and Procedure
2. › Pleadings
3. › Strike out
4. › Whether statement of claim discloses arguable cause of action
5. › Professional negligence against barrister
6. › Causation
7. › Loss of opportunity to pursue litigation

Quick Take

A court may recall orders that have not been perfected or acted upon if persuaded that its original decision was wrong, but the jurisdiction must be exercised with great caution. On a strike-out application, it is permissible to assume that but for alleged negligence in preparing a legal opinion, the opinion would have been more favourable, without requiring the plaintiff to plead the specific content of a non-negligent opinion.