Mallik v McGeown [2007] NSWSC 1414

Mallik v McGeown [2007] NSWSC 1414

Advocate's immunity is a shield against liability for an advocate's in-court conduct and does not operate like parliamentary privilege to prevent a court from examining or adjudicating upon issues that question an advocate's conduct in earlier court proceedings. The plaintiff's proposed reply was manifestly unarguable because the third defendant's defences would not relitigate or collaterally attack the final result of the Local Court proceedings, and the plaintiff's immunity could not deny the court jurisdiction to determine the defences. Paragraph 4 therefore disclosed no reasonable case in reply and tended to cause embarrassment and delay.

Jurisdiction
Australia
Judgment Date
10 December 2007
Procedural Posture
Defamation Proceeding / Notice of Motion by the Third Defendant to Strike Out Paragraph 4 of the Plaintiff's Amended Reply Under Uniform Civil Procedure Rules, Pt 14, R 14.28
Outcome
Paragraph 4 of the amended reply to the second further amended defence of the third defendant was struck out, with costs to the third defendant.
Legal Topics
['pleading' 'strike Out Application' 'absolute Privilege' 'truth Defence' 'honest Opinion' 'qualified Privilege' "whether Advocate's Immunity Prevents a Defendant From Relying on an Advocate's in Court Conduct in Defence of a Defamation Claim"]
['defamation' 'civil Procedure' "advocates' Immunity" 'parliamentary Privilege'] ['pleading' 'strike Out Application' 'absolute Privilege' 'truth Defence' 'honest Opinion' 'qualified Privilege' "whether Advocate's Immunity Prevents a Defendant From Relying on an Advocate's in Court Conduct in Defence of a Defamation Claim"]

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Procedural Posture

Defamation Proceeding / Notice of Motion by the Third Defendant to Strike Out Paragraph 4 of the Plaintiff's Amended Reply Under Uniform Civil Procedure Rules, Pt 14, R 14.28

Legal Issues

  1. 1 ["Whether paragraph 4 of the plaintiff's amended reply should be struck out under r 14.28." "Whether advocate's immunity from suit in respect of things said or done in court proceedings extends to prevent a defendant sued by the advocate from maintaining defences that question the advocate's in-court conduct." "Whether advocate's immunity operates in the same way as parliamentary privilege so as to preclude the court from examining what the advocate said or did in court." "Whether permitting the third defendant's defences to proceed would infringe the principle of finality underlying advocate's immunity."]

Ratio Decidendi

Advocate's immunity is a shield against liability for an advocate's in-court conduct and does not operate like parliamentary privilege to prevent a court from examining or adjudicating upon issues that question an advocate's conduct in earlier court proceedings. The plaintiff's proposed reply was manifestly unarguable because the third defendant's defences would not relitigate or collaterally attack the final result of the Local Court proceedings, and the plaintiff's immunity could not deny the court jurisdiction to determine the defences. Paragraph 4 therefore disclosed no reasonable case in reply and tended to cause embarrassment and delay.

Court Disposition

Paragraph 4 of the amended reply to the second further amended defence of the third defendant was struck out, with costs to the third defendant.

Orders

  • ['That par 4 of the amended reply to the second further amended defence of the third defendant be struck out.' "That the plaintiff pay the third defendant's costs of the notice of motion."]