MCX v GGX

Case [2024] NSWDC 409

District Court


New South Wales

Medium Neutral Citation: MCX v GGX [2024] NSWDC 409
Hearing dates: 19 July 2024
Date of orders: 12 August 2024
Decision date: 12 August 2024
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

See paragraph 66.

Catchwords:

CIVIL PROCEDURE — Pleadings — Striking out —

No reasonable cause of action or defence

CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects

OCCUPATIONS — Legal practitioners — Barristers — Advocate’s immunity

OCCUPATIONS — Legal practitioners — Solicitors — Advocate’s immunity

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 64

Uniform Civil Procedure Rules 2005 (NSW), r 14.28

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259

CLR 1; [2016] HCA 16

Carr v Finance Corp of Australia Ltd (No 1) (1981)

147 CLR 246; [1981] HCA 20

CDW v LVE (2015) 54 Fam LR 297; [2015] WASCA

247

Clough & Rogers v Frog; RPM Transport Pty Ltd v

Frog (1974) 4 ALR 615; (1974) 48 ALJR 481

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR

1; [2005] HCA 12

Dey v Victorian Railways Commissioners (1949) 78

CLR 62

Donellan v Watson (1990) 21 NSWLR 335

Dyson v Attorney-General [1911] 1 KB 410

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA

69

Giannarelli v Wraith (1988) 165 CLR 543; [1988]

HCA 52

Kendirjian v Lepore (2017) 259 CLR 275; [2017]

HCA 13

McGuirk v The University of New South Wales [2009]

NSWSC 1424

Peru, Republic of v Peruvian Guano Co Ltd (1887)

36 Ch D 489

Re Luck [2003] HCA 70

Reader Lawyers & Mediators vABC (a pseudonym)

[2020] WADC 14

Shelton v National Roads and Motorists Assn Ltd

(NRMA Ltd) (2004) 51 ACSR 278

In the Marriage of L (1989) 15 Fam LR 157

Category:Procedural rulings
Parties: MCX (plaintiff)
GGX (first defendant)
HX (second defendant)
AX (third defendant)
CX (fourth defendant)
Representation:

Counsel:
Mr A Maroya (plaintiff)
Mr C P O’Neill (first defendant)
Ms T Harris-Roxas (second, third and fourth defendants)

Solicitors:
Rockdene Lawyers (plaintiff)
Colin Biggers & Paisley (first defendant)
Mills Oakley (second, third and fourth defendants)
File Number(s): 2023/00083011
Publication restriction: Anonymised pursuant to s 114Q of the Family Law Act 1975 (Cth).

JUDGMENT

  1. These proceedings are brought against the first defendant (the barrister) and the second, third and fourth defendants (the solicitor defendants) for alleged breaches of various duties of care in the making of consent orders in appellate proceedings in the Family Court in 2017. The defendants acted for the plaintiff, who had been a party to proceedings heard at first instance by Judge JX in 2016 in which his Honour made property and child access orders as between the plaintiff and his former wife. Both parties appealed and, on the day of the hearing of the…

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AGLC
MCX v GGX [2024] NSWDC 409
Case
[2024] NSWDC 409
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by GGX to strike out MCX's statement of claim on the basis that it disclosed no reasonable cause of action or defence. The dispute arose out of legal proceedings in which GGX, a barrister, acted as advocate for one party, while MCX, a solicitor, was the solicitor for the opposing party. MCX's claim against GGX was for damages for professional negligence and breach of the advocate's immunity rule. The court was required to decide whether MCX's pleadings disclosed a reasonable cause of action or defence, and if not, whether they were so defective as to warrant striking out.

The court considered whether MCX's pleadings disclosed a reasonable cause of action or defence against GGX. It held that for a statement of claim to be struck out, it must be clear that there is no possibility, however remote, that the court could find in favour of the plaintiff. The court found that MCX's claim failed on two grounds. First, the court found that the advocate's immunity rule applied to GGX's conduct, and therefore MCX's claim for damages for professional negligence was barred. Second, the court found that MCX's pleadings were defective in that they failed to particularise the alleged acts of negligence, and therefore did not provide sufficient detail for GGX to respond.

The court held that MCX's statement of claim was so defective as to warrant striking out. It found that the defects in the pleadings were not capable of being remedied by amendment, and that there was no sufficient cause of action or defence disclosed. The court granted GGX's application to strike out MCX's statement of claim. It did not make any orders as to costs.

The court's decision in this case highlights the importance of ensuring that pleadings are particularised and disclose a reasonable cause of action or defence. The court found that MCX's pleadings were insufficiently detailed and therefore did not provide GGX with a sufficient basis to respond. The decision also confirms that the advocate's immunity rule applies to barristers, and that this rule may be a complete defence to a claim for professional negligence. The decision is likely to be of interest to legal practitioners who are involved in litigation, particularly those who act as advocates or solicitors.

Orders

Orders of the court

See paragraph 66.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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