MCX v GGX [2024] NSWDC 409

MCX v GGX [2024] NSWDC 409

The plaintiff's pleadings are defective and must be struck out, but the defects are capable of cure by amendment; the claim against the barrister is arguable as advocate's immunity does not, on current material, necessarily apply to consent orders that are interlocutory and do not finally quell the controversy. Therefore, leave is granted to replead, and the motion to strike out on grounds of advocate's immunity is refused.

Parties
Plaintiff: MCX; First Defendant: GGX; Second Defendant: HX; Third Defendant: AX; Fourth Defendant: CX
Jurisdiction
Australia
Judgment Date
12 August 2024
Procedural Posture
Civil / Interlocutory; Motion to Strike Out and Leave to Amend Pleading
Outcome
Application to strike out Further Amended Statement of Claim granted; leave to replead granted; strike out for advocate's immunity refused; costs awarded as specified.
Legal Topics
Pleadings, Striking Out Pleadings, Advocate's Immunity, Legal Practitioners' Duties, Consent Orders, Amendment of Pleadings
Civil Procedure Professional Negligence Pleadings Striking Out Pleadings Advocate's Immunity Legal Practitioners' Duties Consent Orders Amendment of Pleadings

Case Brief

Summary, issues, holding and outcome

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Parties

MCX

Plaintiff

GGX

First Defendant

HX

Second Defendant

AX

Third Defendant

CX

Fourth Defendant

Procedural Posture

Civil / Interlocutory; Motion to Strike Out and Leave to Amend Pleading

Legal Issues

  1. 1 Whether the plaintiff's statement of claim discloses a reasonable cause of action against the defendants
  2. 2 Whether the principle of advocate's immunity applies to the barrister's conduct in agreeing to consent orders
  3. 3 Whether the relevant orders were interlocutory or final for the purposes of advocate's immunity

Ratio Decidendi

The plaintiff's pleadings are defective and must be struck out, but the defects are capable of cure by amendment; the claim against the barrister is arguable as advocate's immunity does not, on current material, necessarily apply to consent orders that are interlocutory and do not finally quell the controversy. Therefore, leave is granted to replead, and the motion to strike out on grounds of advocate's immunity is refused.

Court Disposition

Application to strike out Further Amended Statement of Claim granted; leave to replead granted; strike out for advocate's immunity refused; costs awarded as specified.

Orders

  • The Further Amended Statement of Claim filed 1 December 2023 is struck out.
  • The plaintiff's motion of 22 May 2024 is dismissed.