Borody v Vickers [2021] FCA 618

Borody v Vickers [2021] FCA 618

Dr Vickers was retained to prepare an expert report for use in court proceedings and the report was prepared, filed, and relied upon in connection with the District Court proceedings. The conduct was intimately connected with court work, and witness immunity applies. There is no reasonable prospect that Dr Borody's claim could succeed, warranting summary dismissal. Additionally, the provision of the report was not 'in trade or commerce' within s 18 of the ACL.

Jurisdiction
Australia
Judgment Date
28 May 2021
Procedural Posture
Summary Judgment Application / Final Determination
Outcome
application for summary judgment allowed; proceedings summarily dismissed
Legal Topics
['summary Judgment' 'witness Immunity' 'misleading or Deceptive Conduct' 'expert Evidence' 'trade or Commerce Under Australian Consumer Law']
['practice and Procedure' 'regulator and Consumer Protection' 'commercial Law'] ['summary Judgment' 'witness Immunity' 'misleading or Deceptive Conduct' 'expert Evidence' 'trade or Commerce Under Australian Consumer Law']

Case Brief

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Procedural Posture

Summary Judgment Application / Final Determination

Legal Issues

  1. 1 ['Whether the respondent is immune from suit on the basis of witness immunity' "Whether the respondent's conduct was 'in trade or commerce' within the meaning of s 18 of the Australian Consumer Law" 'Whether the applicant has no reasonable prospect of successfully prosecuting the proceedings']

Ratio Decidendi

Dr Vickers was retained to prepare an expert report for use in court proceedings and the report was prepared, filed, and relied upon in connection with the District Court proceedings. The conduct was intimately connected with court work, and witness immunity applies. There is no reasonable prospect that Dr Borody's claim could succeed, warranting summary dismissal. Additionally, the provision of the report was not 'in trade or commerce' within s 18 of the ACL.

Court Disposition

application for summary judgment allowed; proceedings summarily dismissed

Orders

  • ['The proceedings are summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).' "The applicant pay the respondent's costs."]