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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.]