Hughes v Law Society of NSW & Ors - State of NSW 14th Defendant [2004] NSWSC 290

Hughes v Law Society of NSW & Ors - State of NSW 14th Defendant [2004] NSWSC 290

On the ordinary meaning of s 8(1), the Law Society of NSW was not a person in the service of the Crown, and neither were the other defendants. The Law Society was an independent body with an elected Council, was not an instrumentality, emanation or agent of the Crown, and its statutory functions concerning solicitors' discipline did not place it in the service of the Crown. The plaintiff's claim against the State therefore had no prospects of success and leave to re-plead should not be given.

Jurisdiction
Australia
Judgment Date
14 April 2004
Procedural Posture
Common Law Division Civil Proceeding Alleging Tortious Liability and Vicarious Liability / Interlocutory Motion by the State to Dismiss or Strike Out the Claim Against It and Plaintiff's Motion for Answers to Questions of Law
Outcome
The plaintiff's claim against the State of New South Wales was dismissed and paragraph 4 of the plaintiff's motion was dismissed.
Legal Topics
['crown Vicarious Liability Under S 8 of the Law Reform (vicarious Liability) Act 1983' 'meaning of "in the Service of the Crown"' 'law Society of NSW Functions Under the Legal Profession Act 1987' 'dismissal for No Reasonable Cause of Action' 'leave to Re Plead' 'use of Law Reform Commission Report in Statutory Construction']
['tort Law' 'vicarious Liability' 'legal Profession Regulation' 'civil Procedure'] ['crown Vicarious Liability Under S 8 of the Law Reform (vicarious Liability) Act 1983' 'meaning of "in the Service of the Crown"' 'law Society of NSW Functions Under the Legal Profession Act 1987' 'dismissal for No Reasonable Cause of Action' 'leave to Re Plead' 'use of Law Reform Commission Report in Statutory Construction']

Case Brief

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Procedural Posture

Common Law Division Civil Proceeding Alleging Tortious Liability and Vicarious Liability / Interlocutory Motion by the State to Dismiss or Strike Out the Claim Against It and Plaintiff's Motion for Answers to Questions of Law

Legal Issues

  1. 1 ['Whether s 8 of the Law Reform (Vicarious Liability) Act 1983 renders the Crown vicariously liable for tortious conduct of the Law Society in the performance or purported performance of its functions under the Legal Profession Act 1987 (NSW).' "Whether the plaintiff's claim against the State disclosed a reasonable cause of action or should be dismissed or struck out." 'Whether the plaintiff should be given leave to re-plead against the State.' "Whether paragraph 4 of the plaintiff's motion for questions of law could succeed."]

Ratio Decidendi

On the ordinary meaning of s 8(1), the Law Society of NSW was not a person in the service of the Crown, and neither were the other defendants. The Law Society was an independent body with an elected Council, was not an instrumentality, emanation or agent of the Crown, and its statutory functions concerning solicitors' discipline did not place it in the service of the Crown. The plaintiff's claim against the State therefore had no prospects of success and leave to re-plead should not be given.

Court Disposition

The plaintiff's claim against the State of New South Wales was dismissed and paragraph 4 of the plaintiff's motion was dismissed.

Orders

  • ["Leave to re-plead should not be given as the plaintiff's claim against the State has no prospects of success." "The plaintiff's claim against the State is dismissed." "Paragraph 4 of the plaintiff's motion is dismissed." 'Reserve position as to costs with liberty to either side to apply on 14 days notice. Notice...