Richards v Paul Anthony Carroll, Diana Badui Farah, Hanaan Mary Indari, Stanislaus Anthony Carroll, Gerard Mark Phillips, John Michael O'Dea, Anthony James Baine, Adrian John O'Dea, Robert Patrick Higgins t/as Carroll & O'Dea [2014] NSWDC 249

Richards v Paul Anthony Carroll, Diana Badui Farah, Hanaan Mary Indari, Stanislaus Anthony Carroll, Gerard Mark Phillips, John Michael O'Dea, Anthony James Baine, Adrian John O'Dea, Robert Patrick Higgins t/as Carroll & O'Dea [2014] NSWDC 249

Leave was granted to file an Amended Reply because the pleaded disability issue under s 11 of the Limitation Act 1969 was crucial to whether the plaintiff could litigate the merits against Carroll & O'Dea, and refusing leave would effectively ensure the proceedings failed. The prejudice to the defendants was addressed by striking out the Reply filed without leave, requiring an Amended Reply specifying the nature and period of disability, vacating the hearing, enabling further procedural steps including medical examination, discontinuance against the second defendant, and making costs orders and undertakings.

Jurisdiction
Australia
Judgment Date
24 November 2014
Procedural Posture
Civil Professional Negligence Claim Against Solicitors / Interlocutory Application for Leave to File a Reply and Adjournment of Hearing
Outcome
Reply filed without leave struck out; plaintiff granted leave to file and serve an Amended Reply; hearing vacated; costs and procedural directions made.
Legal Topics
['solicitor Liability' 'tutor' 'disability and Suspension of Limitation Period' 'pleadings' 'adjournment' 'costs']
['professional Negligence' 'civil Procedure' 'limitation of Actions'] ['solicitor Liability' 'tutor' 'disability and Suspension of Limitation Period' 'pleadings' 'adjournment' 'costs']

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Procedural Posture

Civil Professional Negligence Claim Against Solicitors / Interlocutory Application for Leave to File a Reply and Adjournment of Hearing

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to regularise the filing of a Reply raising suspension of the limitation period under s 11 of the Limitation Act 1969 on the basis of disability.' 'Whether granting leave would cause prejudice requiring vacation of the hearing date, medical examination of the plaintiff, discontinuance against the second defendant, and costs orders.' 'Whether the Reply filed without leave on 10 November 2014 should be struck out.']

Ratio Decidendi

Leave was granted to file an Amended Reply because the pleaded disability issue under s 11 of the Limitation Act 1969 was crucial to whether the plaintiff could litigate the merits against Carroll & O'Dea, and refusing leave would effectively ensure the proceedings failed. The prejudice to the defendants was addressed by striking out the Reply filed without leave, requiring an Amended Reply specifying the nature and period of disability, vacating the hearing, enabling further procedural steps including medical examination, discontinuance against the second defendant, and making costs orders and undertakings.

Court Disposition

Reply filed without leave struck out; plaintiff granted leave to file and serve an Amended Reply; hearing vacated; costs and procedural directions made.

Orders

  • ['Strike out the Reply filed without leave on 10 November 2014.' 'Grant leave to the plaintiff to file and serve on or before 1 December 2014 an Amended Reply containing the terms of paragraph 1 of the earlier Reply and also specifying the nature and period of the disability alleged by the plaintiff.' 'Vacate the...