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 2009JURISDICTION: Common Law
Professional Negligence ListJUDGMENT 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 1351PARTIES: 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)
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
IntroductionJUDGMENT
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…
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- Bott v Carter [2009] NSWSC 236
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- [2009] NSWSC 236
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CaseChat Overview and Summary
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.
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