Bott v Carter

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.