Bott v Carter - [2010] NSWCA 21

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Bott v Carter [2010] NSWCA 21

FILE NUMBER(S):
298512/2009

HEARING DATE(S):
24 February 2010

JUDGMENT DATE:
24 February 2010

EX TEMPORE DATE:
24 February 2010

PARTIES:
David Charles Bott (Appellant)
Trevor John Carter (First Respondent)
Clive Andreas Evatt (Second Respondent)

JUDGMENT OF:
Allsop P Tobias JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
20230/2007

LOWER COURT JUDICIAL OFFICER:
Hislop J

LOWER COURT DATE OF DECISION:
2 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
David Charles Bott v Trevor John Carter [2009] NSWSC 236

COUNSEL:
Mr M L Williams SC (Appellant)
Mr R J H Darkes SC (First Respondent)
Mr R E Williams QC (Second Respondent)

SOLICITORS:
In Person (Appellant)
Yeldham Price O'Brien Lusk (First Respondent)
McCabe Terrill Lawyers (Second Respondent)

CATCHWORDS:

LEGISLATION CITED:
r13 and r14 of the Civil Procedure Rules

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:

Leave to appeal be granted on the question of the exercise of the power by Hislop J to dismiss the proceedings generally.
Direct the Registrar to approach the New South Wales Bar Association for pro bono assistance by an experienced junior counsel in the field of professional negligence to assist the appellant with the preparation of a draft statement of claim and submissions on the appeal.
Application for leave to appeal otherwise refused.
Direct the parties to approach the Registrar for the making of directions as to written submissions taking into account the need for the appellant to provide further submissions to the Court and the preparation of a further draft statement of claim.
5. Costs of the application today are reserved to the Appeal Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298512
ALLSOP P
TOBIAS JA
Wednesday 24 February 2010

DAVID CHARLES BOTT v TREVOR JOHN CARTER

Judgment

ALLSOP P: This is an application for leave to appeal from orders made by a judge in the Common Law Division on 2 April 2009, striking out the fourth amended statement of claim that had been filed by the plaintiff, and also dismissing proceedings generally against both defendants. The orders were made under rules 13 and 14 of the Civil Procedure Rules.
The claim is a professional negligence claim against a solicitor and counsel arising from the conduct of litigation that was heard before the District Court, and judgment given by his Honour Judge Rein. An appeal was dismissed in the Court of Appeal and special leave to appeal refused in respect of that dismissal. The plaintiff then complained in separate proceedings against his legal advisers about the conduct of the primary action.
Justice Hislop, who was the primary judge making the orders in respect of which leave is sought, had earlier stated in a judgment of 6 June 2008 that the plaintiff, who was self represented, be given one last opportunity to plead his claim.
His Honour was of the view that the fourth amended statement of claim should be…

Grounds of appeal

[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

Details

AGLC: Bott v Carter [2010] NSWCA 21
Case: [2010] NSWCA 21
Decision Date: 24 February 2010

CaseChat Overview and Summary

In *Bott v Carter*, the Full Court of the Supreme Court of New South Wales considered an appeal concerning the interpretation and application of rules 13 and 14 of the Civil Procedure Rules. The dispute arose from an application to strike out a statement of claim, with the appellant arguing that the statement of claim was embarrassing and vexatious, and therefore should be dismissed.

The primary legal issue before the Court was whether the statement of claim, as pleaded, was so vague, general, or lacking in particularity that it would embarrass the defendant or tend to prejudice, embarrass or delay the fair trial of the action. This required the Court to consider the threshold for striking out a pleading on these grounds and the principles governing the exercise of such a power.

The Court reasoned that a pleading should not be struck out merely because it could have been more detailed. Instead, the pleading must be shown to be so deficient that it would cause genuine embarrassment or prejudice to the opposing party, or significantly impede the conduct of the litigation. Applying these principles, the Court found that while the statement of claim could have been more specific in certain areas, it did not reach the threshold required for it to be struck out entirely. The Court emphasised that the rules of pleading are designed to ensure that parties understand the case they have to meet and that the issues are clearly defined for trial.

The appeal was dismissed, and the matter was remitted for further proceedings in the court below.

Orders