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

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

The 4th amended statement of claim disclosed no reasonable cause of action, contained defective and embarrassing allegations, and many claims fell within the scope of advocates immunity. No loss was demonstrated even if claims were accepted, and claims of professional misconduct were inappropriate for determination in ordinary civil proceedings and should be struck out. Accordingly, the statement of claim was struck out and the proceedings dismissed against both defendants.

Parties
Plaintiff: David Charles Bott; First Defendant: Trevor John Carter; Second Defendant: Clive Evatt
Jurisdiction
Australia
Judgment Date
02 April 2009
Procedural Posture
Civil Professional Negligence / Strike Out Application; Final Orders
Outcome
Statement of claim struck out; proceedings dismissed; costs ordered against plaintiff.
Legal Topics
Advocates Immunity, Strike Out Application, Embarassing Pleadings, Professional Misconduct, Duty of Care
Civil Procedure Professional Negligence Advocates Immunity Strike Out Application Embarassing Pleadings Professional Misconduct Duty of Care

Case Brief

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Parties

David Charles Bott

Plaintiff

Trevor John Carter

First Defendant

Clive Evatt

Second Defendant

Procedural Posture

Civil Professional Negligence / Strike Out Application; Final Orders

Legal Issues

  1. 1 Whether the 4th amended statement of claim discloses a reasonable cause of action against the defendants
  2. 2 Whether advocates immunity applies to the allegations of negligence against the defendants
  3. 3 Whether claims of professional misconduct are appropriately brought in these proceedings

Ratio Decidendi

The 4th amended statement of claim disclosed no reasonable cause of action, contained defective and embarrassing allegations, and many claims fell within the scope of advocates immunity. No loss was demonstrated even if claims were accepted, and claims of professional misconduct were inappropriate for determination in ordinary civil proceedings and should be struck out. Accordingly, the statement of claim was struck out and the proceedings dismissed against both defendants.

Court Disposition

Statement of claim struck out; proceedings dismissed; costs ordered against plaintiff.

Orders

  • The 4th amended statement of claim is struck out.
  • The proceedings are dismissed generally against each defendant.