Bott v Carter [2012] NSWCA 89

Bott v Carter [2012] NSWCA 89

All allegations in the proposed statement of claim were, with one possible but deficient exception, within the scope of advocates' immunity and thus incapable of founding a claim in negligence; the only claim that might arguably have fallen outside the immunity (failure to engage in settlement discussions) was inadequately pleaded and lacked particulars of loss, so did not disclose a reasonable cause of action.

Jurisdiction
Australia
Judgment Date
17 April 2012
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court Common Law Division Strike Out and General Dismissal
Outcome
Appeal dismissed
Legal Topics
["lawyers' Negligence" "advocates' Immunity" 'strike Out Applications' 'summary Dismissal' 'settlement Offers' 'pleadings Requirements']
['professional Negligence' 'civil Procedure'] ["lawyers' Negligence" "advocates' Immunity" 'strike Out Applications' 'summary Dismissal' 'settlement Offers' 'pleadings Requirements']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court Common Law Division Strike Out and General Dismissal

Legal Issues

  1. 1 ["Whether allegations of negligence against legal practitioners fall outside the scope of advocates' immunity" 'Whether summary dismissal of the proceedings was appropriate under UCPR r 13.4' "Whether failure to engage in settlement discussions by a solicitor can found a claim for negligence not captured by advocates' immunity"]

Ratio Decidendi

All allegations in the proposed statement of claim were, with one possible but deficient exception, within the scope of advocates' immunity and thus incapable of founding a claim in negligence; the only claim that might arguably have fallen outside the immunity (failure to engage in settlement discussions) was inadequately pleaded and lacked particulars of loss, so did not disclose a reasonable cause of action.

Court Disposition

Appeal dismissed

Orders

  • ["Direct that the amended statement of claim prepared for the hearing of the appeal should be marked for identification 'A' and placed on the Court file." 'Dismiss the appeal from the judgment of Hislop J in the Common Law Division delivered on 2 April 2009.' "Order the applicant to pay the respondents' costs of the...