James v Phillips [2017] NSWSC 148

James v Phillips [2017] NSWSC 148

The amended statement of claim was dismissed because it was embarrassing and substantively untenable: the fraud allegations were not properly or fairly particularised; the claim against the second defendant solicitor was not properly pleaded; the case depended on suspicion, speculation and indirect inferences rather than evidence capable of satisfying the Briginshaw standard; and no adequate or reasonably likely causal connection was shown between the alleged conduct and the Court of Appeal's decision or costs orders.

Jurisdiction
Australia
Judgment Date
24 February 2017
Procedural Posture
Proceedings Seeking to Set Aside Orders of the Court of Appeal Alleging Fraud, Dishonesty, Conspiracy, Perversion of the Course of Justice, Misleading the Court and Perjury / Defendants' Motion for Summary Dismissal of the Amended Statement of Claim
Outcome
Claim dismissed
Legal Topics
['application to Set Aside Court of Appeal Orders' 'alleged Fraud and Conspiracy' 'embarrassing and Vexatious Pleading' 'summary Dismissal' 'family Provision Claim' "counsel's Duty to the Court" 'costs Orders']
['equity' 'judgments' 'pleadings' 'succession' 'legal Profession'] ['application to Set Aside Court of Appeal Orders' 'alleged Fraud and Conspiracy' 'embarrassing and Vexatious Pleading' 'summary Dismissal' 'family Provision Claim' "counsel's Duty to the Court" 'costs Orders']

Case Brief

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Procedural Posture

Proceedings Seeking to Set Aside Orders of the Court of Appeal Alleging Fraud, Dishonesty, Conspiracy, Perversion of the Course of Justice, Misleading the Court and Perjury / Defendants' Motion for Summary Dismissal of the Amended Statement of Claim

Legal Issues

  1. 1 ["Whether the plaintiffs' amended statement of claim should be dismissed as embarrassing, vexatious and untenable" 'Whether the allegations of fraud, dishonesty, conspiracy, perversion of the course of justice, misleading the Court and perjury were properly and fairly particularised' 'Whether the claim against the second defendant solicitor was properly pleaded' 'Whether the claim was based only on suspicion and speculation rather than material capable of proving fraud' "Whether any alleged perjury or fraud had a sufficient causal connection with the Court of Appeal's decision sought to be set aside"]

Ratio Decidendi

The amended statement of claim was dismissed because it was embarrassing and substantively untenable: the fraud allegations were not properly or fairly particularised; the claim against the second defendant solicitor was not properly pleaded; the case depended on suspicion, speculation and indirect inferences rather than evidence capable of satisfying the Briginshaw standard; and no adequate or reasonably likely causal connection was shown between the alleged conduct and the Court of Appeal's decision or costs orders.

Court Disposition

Claim dismissed

Orders

  • ['The amended statement of claim is dismissed.' 'The Court will hear submissions on indemnity costs and the making of a gross fixed sum costs order.' 'Zachary Phillips was appointed to represent the estate of Brian Phillips for the purpose of the proceedings.']