Bott v Carter [2010] NSWCA 21 (24 February 2010)

Last Updated: 12 March 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Bott v Carter [2010] NSWCA 21


FILE NUMBER(S):
298512/2009

HEARING DATE(S):
24 February 2010

JUDGMENT DATE:
24 February 2010

EX TEMPORE DATE:
24 February 2010

PARTIES:
David Charles Bott (Appellant)
Trevor John Carter (First Respondent)
Clive Andreas Evatt (Second Respondent)

JUDGMENT OF:
Allsop P Tobias JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
20230/2007

LOWER COURT JUDICIAL OFFICER:
Hislop J

LOWER COURT DATE OF DECISION:
2 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
David Charles Bott v Trevor John Carter [2009] NSWSC 236

COUNSEL:
Mr M L Williams SC (Appellant)
Mr R J H Darkes SC (First Respondent)
Mr R E Williams QC (Second Respondent)

SOLICITORS:
In Person (Appellant)
Yeldham Price O'Brien Lusk (First Respondent)
McCabe Terrill Lawyers (Second Respondent)

CATCHWORDS:


LEGISLATION CITED:
r13 and r14 of the Civil Procedure Rules

CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
1. Leave to appeal be granted on the question of the exercise of the power by Hislop J to dismiss the proceedings generally.
2. Direct the Registrar to approach the New South Wales Bar Association for pro bono assistance by an experienced junior counsel in the field of professional negligence to assist the appellant with the preparation of a draft statement of claim and submissions on the appeal.
3. Application for leave to appeal otherwise refused.
4. Direct the parties to approach the Registrar for the making of directions as to written submissions taking into account the need for the appellant to provide further submissions to the Court and the preparation of a further draft statement of claim.
5. Costs of the application today are reserved to the Appeal Court.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298512

ALLSOP P

TOBIAS JA

Wednesday 24 February 2010

DAVID CHARLES BOTT v TREVOR JOHN CARTER

Judgment

1 ALLSOP P: This is an application for leave to appeal from orders made by a judge in the Common Law Division on 2 April 2009, striking out the fourth amended statement of claim that had been filed by the plaintiff, and also dismissing proceedings generally against both defendants. The orders were made under rules 13 and 14 of the Civil Procedure Rules.

2 The claim is a professional negligence claim against a solicitor and counsel arising from the conduct of litigation that was heard before the District Court, and judgment given by his Honour Judge Rein. An appeal was dismissed in the Court of Appeal and special leave to appeal refused in respect of that dismissal. The plaintiff then complained in separate proceedings against his legal advisers about the conduct of the primary action.

3 Justice Hislop, who was the primary judge making the orders in respect of which leave is sought, had earlier stated in a judgment of 6 June 2008 that the plaintiff, who was self represented, be given one last opportunity to plead his claim.

4 His Honour was of the view that the fourth amended statement of claim should be struck out in its entirety. Leave is sought to appeal against that decision.

5 Mr Mark Williams of Senior Counsel, has appeared pro bono for the applicant, pursuant to a request by the Registrar. The Court is grateful to Mr Williams for undertaking the task he has. The Bar's assistance in giving assistance to litigants where it is required assists fundamentally in the administration of justice, and the Court is always grateful for assistance, and in particular for the clear and helpful assistance of Mr Williams.

6 Notwithstanding that assistance, I am of the clear view that there was no material error by the primary judge in striking out the totality of the pleading. I come to that conclusion because a reading of the pleading makes manifest its inadequacies in terms of pleading material facts as to the contents of a retainer, breach and causation.

7 It would be a gross injustice to the defendants, the respondents to this application, to force them to trial and defence of the pleadings with the lack of clarity and legal coherence they involve. I generally agree with the primary judge's reasons in that regard. To the extent that his Honour failed to deal with some of the particulars in some of the pleadings, his Honour’s criticisms of other paragraphs are equally applicable to them. Those paragraphs with which his Honour did not deal are as legally incoherent and incapable in their present form of founding a claim as the paragraphs with which his Honour dealt.

8 For those reasons, I am of the view that there are no reasonable prospects of success in any appeal in relation to the strike out of the fourth amended statement of claim.

9 That, however, does not deal with the question of the leave to appeal on the dismissal of the proceedings generally. It is inappropriate to deal at any length at this point with the leave question, other than to say that I am prepared to grant leave on the question of whether or not his Honour's exercise of power miscarried to summarily dismiss the proceedings without giving an opportunity to replead the matter.

10 By reason of my view that leave should be given, it would be inappropriate to give any reasons for that view that I hold. Nevertheless, I have said in argument what matters were troubling me; they still trouble me, although I have not formed a final view. In my view, leave should be given on the dismissal.

11 Two further matters arise. This Court cannot bind the Court that hears the appeal, although it may well be that we two comprise two of the three judges, if the parties do not object. If the Court comes to the view that his Honour's exercise of power miscarried, the Court will be called upon to re-exercise their discretion.

12 Subject to hearing from counsel on the matter, a very relevant consideration might be thought to be whether there exists at that time a form of pleading which is both clear and defensible in terms of the rules of pleading under the Uniform Civil Procedure Rules.

13 That said, the only other matter that I would raise is that Mr Mark Williams for the applicant invited this Bench to hear the appeal, with the addition of one other judge, and to deal with the matter on the papers. We have not heard from the other parties on that point. We will do so in that moment.

14 The orders that I would make would be to grant leave to appeal, restricted to the question as to whether the primary judge should have dismissed the proceedings generally.

15 TOBIAS JA: I agree.

(Discussion with counsel)

16 ALLSOP P: For the reasons I have identified, the orders of the Court are:

1. Leave to appeal be granted on the question of the exercise of the power by Hislop J to dismiss the proceedings generally.

2. Direct the Registrar to approach the New South Wales Bar Association for pro bono assistance by an experienced junior counsel in the field of professional negligence to assist the appellant with the preparation of a draft statement of claim and submissions on the appeal.

3. Application for leave to appeal otherwise refused.

4. Direct the parties to approach the Registrar for the making of directions as to written submissions taking into account the need for the appellant to provide further submissions to the Court and the preparation of a further draft statement of claim.

5. Costs of the application today are reserved to the Appeal Court.

17 It is to be noted that the parties have no objection to the bench hearing the matter in the future to comprise the two Judges (Allsop P and Tobias JA) currently sitting on the application, together with one other Judge and to that bench dealing with the appeal on the papers with the assistance of further submissions and today's transcript.

18 If any party wishes to have an oral hearing such request should be put forward, either in the written submissions filed or by letter to the Registrar after submissions are filed.

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LAST UPDATED:
9 March 2010