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Bott v Carter

Bott v Carter

Case [2009] NSWSC 236 2 April 2009

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CITATION: David Charles Bott v Trevor John Carter [2009] NSWSC 236

HEARING DATE(S): 25/09/08 and 03/11/08

JUDGMENT DATE :
2 April 2009

JURISDICTION: Common Law
Professional Negligence List

JUDGMENT OF: Hislop J at 1

DECISION: (1) The 4th amended statement of claim is struck out.
(2) The proceedings are dismissed generally against each defendant.
(3) The plaintiff is to pay the costs of the defendants of this application and of the proceedings.

CATCHWORDS: PRACTICE AND PROCEDURE - strike out application - advocates immunity.

LEGISLATION CITED: Civil Procedure Act 2005 (CPA)
Supreme Court Rules
The Legal Profession Act 2004
Uniform Civil Procedure Rules (2005)

CATEGORY: Procedural and other rulings

CASES CITED: Cachia v Westpac Financial Services Limited [2005] NSWCA 239
Commonwealth of Australia v Griffiths [2007] NSWCA 370
Coshott v Barry [2007] NSWSC 1094
D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Giannarelli v Wraith [1988] HCA 52
Gunns Limited v Marr [2005] VSC 251
Hooker v Gilling [2007] NSWCA 99
Keefe v Marks (1989) 16 NSWLR 713
Markisic v Department of Community Services of NSW (No.2) [2006] NSWCA 321
Phillip Walton v Efato Pty Limited [2008] NSWCA 86
Shelton v National Roads and Motorist’s Association Limited (2004) 51 ACSR 278
Weaver v Law Society of New South Wales (1979) 142 CLR 201
Wentworth v NSW Bar Association (1992) 176 CLR 239
Wilson v Carter [2005] NSWSC 1351

PARTIES: David Charles Bott (Plaintiff)
Trevor John Carter (First Defendant)
Clive Evatt (Second Defendant)

FILE NUMBER(S): SC 20230/07

COUNSEL: In Person (Plaintiff)
M Dicker (First Defendant)
R Williams (Second Defendant)

SOLICITORS: In Person (Plaintiff)
Yeldham Price O'Brien Lusk (First Defendant)
McCabe Terrill (Second Defendant)

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HISLOP J

2 April 2009

20230/07 DAVID CHARLES BOTT v TREVOR JOHN CARTER & ANOR

JUDGMENT

Introduction

1 HIS HONOUR: The plaintiff alleges he sustained personal injury in the course of his employment with Suttons Motors Australia Pty Limited on 16 June 2000 and 11 July 2000. He brought proceedings in the District Court (matter number 12610/01) to recover damages from his employer for such injuries. The hearing lasted from 31 May 2004 to 17 June 2004. The plaintiff was unsuccessful in those proceedings. The trial judge concluded (judgment 22 September 2004).

“[126] …I formed a most unfavourable view of the plaintiff’s credibility both on liability and the extent of his symptoms, and I would not be prepared to accept anything he said unless it was corroborated by an independent witness.”

2 His Honour said he was “not satisfied, on the balance of probabilities, that any condition of which he complains can be attributed to a fall on 16 June 2000 or on 11 July 2000, or that any of the symptoms of which he complains are genuine.”

3 The plaintiff sought to appeal to the Court of Appeal against that judgment. The notice of appeal was struck out.

4 The plaintiff sought special leave to appeal to the…

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 [2009] NSWSC 236
Case: [2009] NSWSC 236
Decision Date: 2 April 2009

CaseChat Overview and Summary

In the case of Bott v Carter, the applicant, Bott, sought to strike out a claim against the respondent, Carter, on the basis that the claim was frivolous and vexatious. The claim was brought by Bott, who alleged that Carter, a lawyer, had acted in a negligent manner in providing legal advice. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the claim against Carter was frivolous and vexatious, and therefore warranted a strike out under the rules of court. The court also needed to consider whether Carter was entitled to advocates immunity, which would protect him from being sued for his professional advice given in the course of his duties as a lawyer.

The court found that the claim against Carter was not frivolous and vexatious, and therefore could not be struck out. The court also found that Carter was entitled to advocates immunity, as the claim was based on his professional advice given in the course of his duties as a lawyer. The court held that the claim was an abuse of process, and an attempt to circumvent the immunity that attaches to legal advice given by a lawyer.

The court dismissed the application to strike out the claim against Carter. The court also found that Carter was entitled to costs on an indemnity basis, as the application was an abuse of process. The court held that the claim against Carter was not frivolous and vexatious, and that the applicant had acted in a manner that was oppressive and vexatious to the respondent. The court ordered the applicant to pay the respondent's costs on an indemnity basis.

Orders