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Young v Hones (No 2)

Young v Hones (No 2)

Case [2013] NSWSC 1429 27 September 2013

Interlocutory Orders

Amendment of Pleadings

Negligence

Advocates' Immunity

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Young v Hones (No.2) [2013] NSWSC 1429
Hearing dates: 23/08/2013
Decision date: 27 September 2013
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) The answers to the separate questions are as follows:
(a) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the first and second defendants?
Answer: The defence of advocate's immunity is a complete answer to all of the causes of action which the plaintiff relies upon against the first and second defendants.
(b) Is the defence of advocate's immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the third defendant?
Answer: The defence of advocate's immunity is a complete answer to all of the causes of action upon which the plaintiff relies upon against the third defendant.
(c) Is the defence of witness immunity a complete answer to any, and if so which, part or parts of the plaintiff's claim against the fourth and fifth defendants?
Answer: The defence of witness immunity is a complete answer to all of the causes of action which the plaintiff relies upon against the fourth and fifth defendants.
(2) Proceedings dismissed.
(3) Plaintiff to pay the defendants' costs.
(4) Reserve liberty to the defendants to apply within 28 days for any different order as to costs.
(5) Notice of Motion of the plaintiff filed 23 August 2013 be dismissed.

Catchwords:
PROCEDURE - three interlocutory motions - determination of separate questions as to a complete defence to plaintiff's claim - motion to summarily dismiss proceedings.

PROCEDURE - motion to amend statement of claim - many previous amendments - late amendment sought - no justification for additional amendments to statement of claim provided - exercise of judicial discretion to allow or disallow amendments - parties must address issues in proceedings comprehensively and in a timely manner - overriding purpose of the Civil Procedure Act 2005 is not attained.

LAWYERS - negligence - advocates' immunity - attaches to acts and omissions and extends to conduct of instructing solicitor - held immunity applies.
EVIDENCE - witness immunity - whether witness has immunity for advice provided in expert report - whether alleged loss which accrued due to settlement was assisted by expert report - held immunity applies
Legislation Cited: Civil Procedure Act 2005
Competition and Consumer Act 2010 (Cth)
Conveyancing Act 1919
Court Procedure Rules 2006 (ACT)
Encroachment of Buildings Act 1922
Environment Planning and Assessment Act 1979
Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2007) 239 CLR 175
Attard v James Legal Pty Ltd [2010] NSWCA 311
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
Cabassi v Vila…

Grounds of appeal

[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.

Continue reading Young v Hones (No 2)

Details

AGLC: Young v Hones (No 2) [2013] NSWSC 1429
Case: [2013] NSWSC 1429
Decision Date: 27 September 2013

CaseChat Overview and Summary

In Young v Hones (No 2), the plaintiff sought to sue the defendant for negligence. The case involved three interlocutory motions, each addressing distinct issues related to a complete defence to the plaintiff's claim, and a motion to summarily dismiss the proceedings. The court had to decide whether to permit a late amendment to the statement of claim, which had already undergone numerous revisions. The plaintiff sought further amendments to adduce new evidence, but failed to justify why additional amendments were necessary. The court exercised its discretion under the Civil Procedure Act 2005, noting that the overriding purpose of the Act is to ensure that parties address issues comprehensively and in a timely manner.

The court examined whether advocates' immunity, which extends to the conduct of instructing solicitors, applied in this case. The court held that the immunity applied to the defendant, protecting them from liability for any acts or omissions in the course of providing legal advice. The court also considered whether the witness had immunity for the advice provided in the expert report, which was crucial to the plaintiff's claim. The court found that the immunity applied because the expert report was integral to the settlement process and the plaintiff's alleged loss was assisted by the report.

The court concluded that the defendant was protected by advocates' immunity for their conduct, including the advice provided by the instructing solicitor. The court also found that the witness enjoyed immunity for the advice provided in the expert report. As a result, the court dismissed the plaintiff's claim and the defendant's motion to summarily dismiss the proceedings was successful. The court refused to allow further amendments to the statement of claim, as the plaintiff failed to justify the need for additional amendments.

Orders