Stankovic v Hockey [2014] NSWSC 1455

Stankovic v Hockey [2014] NSWSC 1455

The amended statement of claim substantially replicated the earlier struck-out pleading and remained so defective that the defendant could not be required to plead to it and the matter could not proceed to trial on it; it therefore had a tendency to cause prejudice, embarrassment or delay and should be struck out under r 14.28. However, dismissal of the proceedings under r 13.4 was not warranted because the proposition that advocate's immunity necessarily bars a client's claim for deliberate wrongdoing was contestable at this early stage, and the plaintiff should have one final opportunity to obtain legal advice and plead properly.

Jurisdiction
Australia
Judgment Date
24 October 2014
Procedural Posture
Application to Dismiss Proceedings Or, in the Alternative, to Strike Out Amended Statement of Claim / Interlocutory Notice of Motion
Outcome
The amended statement of claim was struck out, but the proceedings were not dismissed; the plaintiff was given time to file and serve any further amended statement of claim, and no costs order was made.
Legal Topics
['strike Out of Pleading' 'dismissal of Proceedings' 'embarrassing Pleadings' "advocate's Immunity" 'costs Discretion']
['practice and Procedure' 'civil Procedure'] ['strike Out of Pleading' 'dismissal of Proceedings' 'embarrassing Pleadings' "advocate's Immunity" 'costs Discretion']

Case Brief

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Procedural Posture

Application to Dismiss Proceedings Or, in the Alternative, to Strike Out Amended Statement of Claim / Interlocutory Notice of Motion

Legal Issues

  1. 1 ["Whether the plaintiff's amended statement of claim should be struck out as defective or embarrassing." "Whether the proceedings should be dismissed under r 13.4 of the Uniform Civil Procedure Rules because the plaintiff's claim was doomed to failure by reason of advocate's immunity." 'Whether any order for costs should be made on the motion.']

Ratio Decidendi

The amended statement of claim substantially replicated the earlier struck-out pleading and remained so defective that the defendant could not be required to plead to it and the matter could not proceed to trial on it; it therefore had a tendency to cause prejudice, embarrassment or delay and should be struck out under r 14.28. However, dismissal of the proceedings under r 13.4 was not warranted because the proposition that advocate's immunity necessarily bars a client's claim for deliberate wrongdoing was contestable at this early stage, and the plaintiff should have one final opportunity to obtain legal advice and plead properly.

Court Disposition

The amended statement of claim was struck out, but the proceedings were not dismissed; the plaintiff was given time to file and serve any further amended statement of claim, and no costs order was made.

Orders

  • ["The plaintiff's amended statement of claim filed 11 August 2014 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules." 'The plaintiff is to file and serve any further amended statement of claim on or before 21 November 2014.' 'The proceedings are stood over before the Registrar for directions at...