(1) Direct that the amended statement of claim prepared for the hearing of the appeal should be marked for identification "A" and placed on the Court file.
(2) Dismiss the appeal from the judgment of Hislop J in the Common Law Division delivered on 2 April 2009.
(3) Order the applicant to pay the respondents' costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
LAWYERS - negligence - advocates' immunity - allegations of negligent conduct of District Court proceedings - loss of compensation and opportunities - basis for immunity in finality of judicial determination - discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 - whether loss of opportunity to respond to the possibility of an offer of settlement falls outside the scope of the immunity
PROCEDURE - civil - pleadings - application to dismiss the proceedings generally - whether no reasonable cause of action is disclosed - whether there is a real question to be tried - interaction of requirement that court facilitate the just, quick and cheap resolution of the real issues with the approach in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125 - whether requirement limits the circumstances in which the court might be inclined to refuse relief on discretionary grounds - Civil Procedure Act 2005 (NSW), s 56; Uniform Civil Procedure Rules 2005 (NSW), r 13.4
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Bott v Carter
Sign in free to access the full text
Details
AGLC
Bott v Carter [2012] NSWCA 89
Case
[2012] NSWCA 89
Decision Date
CaseChat Overview and Summary
The applicant, Bott, appealed from a decision of Hislop J in the Common Law Division of the Supreme Court of New South Wales, which had dismissed his proceedings against the respondents, Carter and others. The proceedings concerned allegations of negligent conduct by the respondents, who were lawyers, during District Court proceedings. Bott claimed to have suffered a loss of compensation and opportunities as a result of this alleged negligence.
The central legal issues before the Court of Appeal were whether the claim was barred by the doctrine of advocates' immunity, and whether the proceedings should be dismissed for disclosing no reasonable cause of action or for failing to raise a real question to be tried. The court was required to consider the scope of advocates' immunity, particularly in light of the High Court's decision in *D'Orta-Ekenaike v Victoria Legal Aid*, and whether a loss of opportunity to respond to a potential settlement offer fell outside its ambit. Furthermore, the court had to determine how the overarching objective of the *Civil Procedure Act 2005* (NSW) and the *Uniform Civil Procedure Rules 2005* (NSW) to facilitate the just, quick and cheap resolution of the real issues interacted with the principles for dismissing proceedings under the "no reasonable cause of action" test established in *General Steel Industries Inc v Commissioner for Railways (NSW)*.
The Court of Appeal reasoned that the allegations of negligence related to the conduct of the litigation itself, and therefore fell within the established scope of advocates' immunity. The court found that the loss of opportunity to respond to a settlement offer was intrinsically linked to the conduct of the proceedings and the finality of the judicial determination, which are the foundations of the immunity. The court also considered the application to dismiss the proceedings, concluding that the claim, as pleaded, did not disclose a reasonable cause of action that could be tried, given the operation of advocates' immunity.
The Court of Appeal dismissed the appeal and ordered the applicant to pay the respondents' costs of the proceedings in the Court of Appeal. The court also directed that an amended statement of claim prepared for the hearing of the appeal be marked for identification and placed on the Court file.
Orders
Orders of the court
(1) Direct that the amended statement of claim prepared for the hearing of the appeal should be marked for identification "A" and placed on the Court file.
(2) Dismiss the appeal from the judgment of Hislop J in the Common Law Division delivered on 2 April 2009.
(3) Order the applicant to pay the respondents' costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]