Young v Hones

Case [2014] NSWCA 337


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Young v Hones [2014] NSWCA 337
Hearing dates:2 May 2014
Decision date: 01 October 2014
Before: Bathurst CJ at [1]; Ward JA at [41]; Emmett JA at [305]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - appeal - separate determination of question - whether the trial judge erred in determining separate questions of law prior to the close of pleadings, where the parties agreed to that course - whether trial judge erred in determining separate questions without reference to proposed statement of claim

PROCEDURE - pleadings - where statement of claim did not allege fraud and defence pleaded advocate's immunity - whether bad faith can be alleged in reply to advocate's or witness immunity

TORTS - negligence - advocate's and witness immunity - whether trial judge erred in articulating and applying tests for advocate's and witness immunity - whether the scope of advocate's immunity extends to acts or omissions in bad faith - whether the scope of advocate's and witness immunity extends to statutory causes of action

TORTS - negligence - witness immunity - where expert witness participated in expert conclave and gave evidence at costs hearing - whether trial judge erred in finding expert retained for the purpose of giving evidence
Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Fair Trading Act 1985 (Vic)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abriel v Rothman [2004] NSWCA 40
Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585
Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510
Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209
Bott v Carter [2012] NSWCA 89
Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590
CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601
Chamberlains v Lai [2006] NZSC 70; (2007) 2 NZLR 7
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Coco v The Queen [1994] HCA 41; (1994) 179 CLR 427
Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268
Coshott v Barry [2009] NSWCA 34
Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435
Dawkins v Lord Rokeby…

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AGLC
Young v Hones [2014] NSWCA 337
Case
[2014] NSWCA 337
Decision Date

CaseChat Overview and Summary

The appeal in *Young v Hones* concerned a dispute where the trial judge had determined separate questions of law prior to the close of pleadings, a course of action to which the parties had agreed. The central issue was whether the trial judge erred in proceeding with this determination without reference to a proposed statement of claim, and whether the judge had correctly articulated and applied the tests for advocate's and witness immunity. Specifically, the court considered whether the scope of these immunities extended to acts or omissions in bad faith, or to statutory causes of action, and whether an expert witness's participation in an expert conclave and evidence at a costs hearing meant they were retained solely for the purpose of giving evidence.

The Court of Appeal was required to determine whether the trial judge's decision to hear and determine separate questions of law before the close of pleadings was an error, notwithstanding the parties' agreement to that procedure. Further, the court had to consider whether the defence of advocate's and witness immunity was properly pleaded and applied, particularly in circumstances where the statement of claim did not allege fraud, but the defence invoked these immunities. The court also examined the extent to which advocate's and witness immunity could be defeated by allegations of bad faith or by statutory causes of action, and whether an expert witness's involvement in an expert conclave and evidence at a costs hearing was sufficient to establish they were retained for the purpose of giving evidence.

The Court of Appeal dismissed the appeal. The judges applied established principles regarding advocate's and witness immunity, finding that these immunities were applicable in the circumstances. The court reasoned that the scope of advocate's immunity was not defeated by allegations of bad faith, nor did it necessarily yield to statutory causes of action in the manner contended by the appellant. Similarly, witness immunity was found to extend to the expert's conduct in the conclave and at the costs hearing. The court upheld the trial judge's determination of the separate questions of law, concluding that no error had been demonstrated. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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