FEV Mono Constructions Pty Ltd v Beattie

FEV Mono Constructions Pty Ltd (the applicant) sought leave to appeal a decision of the primary judge concerning the removal of certain plaintiffs from proceedings and the striking out of a statement of claim. The respondents were the original defendants in the proceedings. The dispute centred on whether the second to fourth plaintiffs had a valid cause of action against the defendants and whether the statement of claim, particularly allegations of negligence, should be struck out due to advocate's immunity.

The court was required to determine two primary legal issues. Firstly, whether the second to fourth plaintiffs should be removed as parties to the proceedings under rule 6.29 of the Uniform Civil Procedure Rules, given that no cause of action was pleaded or articulated on their behalf in argument. Secondly, the court had to consider whether to strike out the entire statement of claim, or parts thereof, in light of the assertion of advocate's immunity in relation to the pleaded particulars of negligence, and whether to grant leave to replead.

The Court of Appeal, comprising Meagher and Gleeson JJA and Emmett AJA, found that the appeal was incompetent. The court dispensed with certain procedural requirements for the applicants and extended time for them to file their summons seeking leave to appeal. However, the summons seeking leave to appeal was ultimately dismissed, and the applicants were ordered to pay the respondents' costs of that summons. In separate proceedings, the appeal commenced by a notice of appeal filed on 30 July 2020 was also dismissed as incompetent, with the appellants ordered to pay the respondents' costs of the motion to dismiss.