Margo Young v Brian Keith Hones

[2015] HCASL 73

MARGO YOUNG

v

BRIAN KEITH HONES & ORS

[2015] HCASL 73
S275/2014

1. The applicant settled proceedings she had commenced in the Land and Environment Court of New South Wales against her neighbours in relation to works being carried out on her neighbours' land ("the Land and Environment Court proceedings").  The applicant subsequently considered the settlement to be wholly inadequate.  She sued two solicitors (the first and second respondents), a barrister (the third respondent), an engineer (the fifth respondent) and the firm employing the engineer (the fourth respondent), who had been retained by her or on her behalf in the Land and Environment Court proceedings, in negligence in the Supreme Court of New South Wales ("the Supreme Court proceedings").  She also claimed that the first to third respondents had engaged in misleading or deceptive conduct. 

2. Before the pleadings had closed in the Supreme Court, but with the consent of the applicant, the primary judge (Garling J) ordered that three separate questions be heard and determined in advance of all other questions in the proceeding.  Those questions concerned whether the defences of advocate's immunity or witness immunity provided a complete answer to the applicant's claim against the respondents.  His Honour answered those questions favourably to the respondents and in consequence dismissed the applicant's claim.  The Court of Appeal of the Supreme Court of New South Wales (Bathurst CJ, Ward and Emmett JJA) dismissed the applicant's appeal.  The Court of Appeal expressed doubt about whether the questions posed were ripe for determination and concern that the obscurity of the applicant's pleading might have denied her the possibility of a different result, but noted that the applicant was bound by the forensic choice she had made to consent to the ordering of those questions.    

3. The applicant now seeks special leave to appeal from the orders of the Court of Appeal, arguing that this Court should reconsider the "retention" or "boundaries of the application of, or the test for" advocate's immunity and witness immunity as stated in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12.

4. The result of the procedural course adopted is that the present case does not provide a suitable vehicle for reconsidering D'Orta-Ekenaike.  The application does not otherwise raise a question of principle sufficient to warrant a grant of special leave.  The application is therefore dismissed.

5. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
6 May 2015 S.J. Gageler