David Charles Bott v Trevor John Carter - [2009] NSWSC 236 - NSWSC 2009 case summary — Zoe

NSWNSWSC

David Charles Bott v Trevor John Carter

[2009] NSWSC 236

Supreme Court of NSW|2009-04-02|Before: Hislop J, Kirby J, Ipp JA

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2009-04-02

Before

Hislop J, Kirby J, Ipp JA

Catchwords

PRACTICE AND PROCEDURE - strike out application - advocates immunity.

Source

Original judgment source is linked above.

Catchwords

PRACTICE AND PROCEDURE - strike out application - advocates immunity.

Judgment (46 paragraphs)

[1]

Introduction 1 HIS HONOUR: The plaintiff alleges he sustained personal injury in the course of his employment with Suttons Motors Australia Pty Limited on 16 June 2000 and 11 July 2000. He brought proceedings in the District Court (matter number 12610/01) to recover damages from his employer for such injuries. The hearing lasted from 31 May 2004 to 17 June 2004. The plaintiff was unsuccessful in those proceedings. The trial judge concluded (judgment 22 September 2004). "[126] …I formed a most unfavourable view of the plaintiff's credibility both on liability and the extent of his symptoms, and I would not be prepared to accept anything he said unless it was corroborated by an independent witness." 2 His Honour said he was "not satisfied, on the balance of probabilities, that any condition of which he complains can be attributed to a fall on 16 June 2000 or on 11 July 2000, or that any of the symptoms of which he complains are genuine."

[2]

3 The plaintiff sought to appeal to the Court of Appeal against that judgment. The notice of appeal was struck out. 4 The plaintiff sought special leave to appeal to the High Court from the decision of the Court of Appeal. The application was dismissed. 5 In determining the application for special leave Kirby J wrote: "On liability, the trial judge accepted the evidence of the respondent's witnesses. He rejected the applicant's account of his injuries on credibility grounds, describing the applicant's evidence as bordering on the fictional and the absurd. His Honour went on also to reject the applicant's claim of significant damage.

[6]

We do not doubt that it is difficult for a person, such as the applicant, to formulate a legally admissible case, without expert legal assistance. Given the background of this litigation, we have considered the record to see whether, behind the matters submitted, there might have been an arguable point or apparent miscarriage of justice. We are not convinced that any such point or miscarriage exists. Essentially, the applicant lost his claim because he was not believed by the trial judge. It is always very difficult for such a disposition to be reversed on appeal… There are no prospects that the applicant could do so in this case. No error has been shown in the conclusions and orders of the Court of Appeal. Accordingly, special leave must be refused." 6 Prior to the High Court's determination of the special leave application, the plaintiff commenced proceedings against the insurer of Suttons Motors Australia Pty Limited. Those proceedings were dismissed by Justice Simpson who described the action as a device to avoid the consequences of the plaintiff's loss of his damages action at trial and in the Court of Appeal. 7 On 6 July 2007 the plaintiff commenced proceedings against the solicitor (first defendant) and barrister (second defendant) who had represented him in the District Court proceedings seeking damages for alleged professional negligence. On 11 July 2007 the plaintiff filed an amended statement of claim. The defendants filed defences and notices of motion seeking orders that the claims in the amended statement of claim be dismissed or, alternatively, the amended statement of claim be struck out. Each defendant pleaded the advocates immunity as a defence to the proceedings. 8 The notices of motion came on for hearing before me on 1 February 2008. The plaintiff represented himself at the hearing. It was apparent that the amended statement of claim, which had been drafted by the plaintiff, was deficient. The plaintiff accepted that the amended statement of claim was deficient and sought an adjournment to redraft it. The applications were adjourned for that purpose. 9 Thereafter the plaintiff filed a second amended statement of claim. It too was deficient. The plaintiff sought a further opportunity to amend his pleading. He was granted "one last opportunity to put his pleadings in order". 10 The plaintiff subsequently served a proposed 3rd amended statement of claim on the defendants. This was followed by a "corrected 3rd amended statement of claim". 11 The defendants each filed a further amended notice of motion in the following terms: "The… defendant will move the court for orders that: (1) Pursuant to Part 13.4(1)(b) and Part 14.28(1)(a) and 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 the claims in the corrected 3rd amended statement of claim be dismissed, alternatively the corrected 3rd amended statement of claim be struck out. (2) In the alternative to 1, that leave be refused to the plaintiff to file the corrected 3rd amended statement of claim. (3) In the alternative to 1 and 2, the claims made by the plaintiff in the corrected 3rd amended statement of claim relating to disciplinary matters against the… defendant (including the relief claimed in prayers 2 and 3 thereof) be stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) until further order. (4) The plaintiff pay the… defendant's costs of this motion. (5) Such further or other orders as the court thinks fit." 12 Subsequently the plaintiff sought an opportunity to prepare written submissions in response to further submissions by the defendants. The plaintiff was given that opportunity. Further written submissions of the plaintiff were served which attached a 4th amended statement of claim which had been filed in the court registry. The plaintiff informed the court that this pleading, unlike earlier pleadings, had been settled by a legal practitioner. The defendants provided written submissions in respect of the 4th amended statement of claim to the court. 13 I propose to proceed with this matter on the basis the 4th amended statement of claim has superseded all previous statements of claim and to deal with the defendants' amended notices of motion on the basis that the references therein to the "corrected 3rd amended statement of claim" be read as references to the 4th amended statement of claim. A copy of the 4th amended statement of claim is attached to this judgment.

[9]

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 15 As Beazley JA (with whom Mason P agreed) stated in the Commonwealth of Australia v Griffiths [2007] NSWCA 370: "11. The general principles relating to the summary disposal of proceedings are well known: see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commission Railway Commissioners [1949] HCA 1;(1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is "so obviously untenable that it cannot possibly succeed"; "manifestly groundless" or "would involve useless expense": see General Steel Industries at 129." 16 The third member of the court in Griffiths (Young CJ in Eq) said at [155]: "The only other comment I need to make is that whilst I agree that the present claim should be struck out under the traditional test laid down in General Steel Industries Inc v Commissioner for Railways… I wish to reserve the position I tentatively took during argument that the overriding purpose stated in s 56 of the Civil Procedure Act 2005 may well warrant courts striking out proceedings on less substantial grounds then those stated in General Steel ." 17 Rule 14.28 of the UCPR provides: "(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) … (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 18 A pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence: Gunns Limited v Marr [2005] VSC 251 at [14] - [15]. A pleading may also be embarrassing if it contains inconsistent, confusing or irrelevant allegations - Shelton v National Roads and Motorist's Association Limited (2004) 51 ACSR 278 at [18]. 19 In Hooker v Gilling [2007] NSWCA 99 McColl JA, with whom Ipp and Basten JJA agreed, said at [47] - [50]: "[47] In Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517-518, Isaacs and Rich JJ said (omitting citations): Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function… [49] …modern attitudes do not detract from the fundamental obligation to plead a case with sufficient clarity that the opposing party, and the court, understand the case being advanced. [50] A statement of claim should contain a summary of the material facts on which the party relies (UCPR 14.7) and must plead any matter which, if not pleaded specifically may take the defendant by surprise: UCPR 14.14." 20 Section 67 of the Civil Procedure Act 2005 (CPA) provides: "Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day." B. As to immunity 21 An advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court - Giannarelli v Wraith [1988] HCA 52; (1987 - 1988) 165 CLR 543, D'orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [85]. 22 The same immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister - Giannarelli at page 559 D'orta at [89] - [91]. 23 The immunity extends to work done out of court which leads to a decision affecting the conduct of the case in court. The protection extends to work so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way that case is to be conducted when it comes to a hearing - Giannarelli at page 560, D'orta at [86]. 24 The criterion adopted in Giannarelli accords with the purpose of the immunity. It describes the acts or omissions to which immunity attaches by reference to the conduct of the case. And it is the conduct of the case that generates the result which should not be impugned - D'orta at [87]. 25 In Giannarelli Mason CJ said that to limit the immunity so that it ended at the court room door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence would be artificial in the extreme. 26 In Coshott v Barry [2007] NSWSC 1094 James J said: [In Keefe v Marks (1989) 16 NSWLR 713 at 718] the Court of Appeal, applying Giannarelli, held that the common law immunity of barristers from liability for negligence extended to out of court work intimately connected with or ancillary to the conduct of a case in court. Such out of court work for a barrister briefed to appear at a hearing would include: "… such matters as interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended".

[11]

Professional misconduct 28 The plaintiff, in the relief claimed in paragraphs 2, 3 and 4 of the 4th amended statement of claim requested that the court find the defendants' actions constituted unsatisfactory conduct and professional misconduct and that they be punished accordingly. A similar request was made in paragraph 32 as against the first defendant and paragraph 17 as against the second defendant. 29 The defendants submitted that the claims for relief sought in paragraphs 2, 3 and 4 and paragraphs 32 (as against the first defendant) and 17 (as against the second defendant) should be struck out as embarrassing and disclosing no reasonable cause of action. Alternatively it was submitted such claims should be stayed pursuant to s 67 CPA on the grounds that a single justice of the Supreme Court should decline to exercise any inherent jurisdiction when there is a suitable alternative venue to deal with the complaint and it would be unduly burdensome to the court and unfair to the defendants to have issues of misconduct and civil liability dealt with in the one case. 30 The Legal Profession Act 2004, chapter 4 (ss 494 - 609), provides a detailed regime governing complaints about, and discipline of, legal practitioners. In short it provides that written complaints may be made to the Legal Services Commissioner about the conduct of an Australian legal practitioner by a client of the practitioner. The complaint may be made irrespective of when the conduct is alleged to have occurred although there are limitations upon the manner in which the complaint may be dealt with if it is made more than three years after the conduct complained of occurred (s 503 - 506, schedule 9 cl 17). There are numerous provisions for the determination of complaints and the making of disciplinary orders. Compensation orders may be made (ss 570-575). A complaint may be made and dealt with even though the Australian legal practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject matter of the complaint (s 600). 31 The Supreme Court has inherent jurisdiction with respect to the control and discipline of local lawyers. That jurisdiction and the powers of the Supreme Court related thereto are not affected by anything in chapter 4 of the Legal Profession Act 2004 (s 590). 32 Part 65A of the Supreme Court Rules provides: "2(1) There are assigned to the Court of Appeal proceedings in the Court in the exercise of the disciplinary powers of the Court with respect to legal practitioners and interstate legal practitioners. (2) Proceedings in the Court under the Legal Profession Act 1987 (other than proceedings assigned to the Court of Appeal) are assigned to the Common Law Division." 33 Disciplinary proceedings under the Legal Profession Act 2004 and in the exercise of the Supreme Court's inherent jurisdiction have been described as proceedings concerned with the protection of the public. These are not criminal proceedings, they are proceedings sui generis - Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207. Such proceedings are not ordinary legal proceedings and are not automatically determined in accordance with rules and procedures in ordinary adversarial proceedings or on the same basis as adversarial proceedings - Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250 -1. 34 In my opinion the claims for relief contained in paragraphs 2, 3 and 4 of the 4th amended statement of claim should be struck out as should paragraph [32] against the first defendant and paragraph [17] against the second defendant. Proceedings of this nature are to be brought by the appropriate authority and not by an individual litigant. The nature of such proceedings renders them inappropriate to be determined in ordinary litigation between the parties and disciplinary proceedings in the exercise of the inherent jurisdiction of the court are assigned to the Court of Appeal not to the common law division.

[12]

35 The first defendant submitted, in essence, that the fourth amended statement of claim, as pleaded against him, was defective in form and substance and embarrassing in a technical sense; that a number of allegations made against him were subject to the advocates immunity and that the plaintiff would suffer no loss even if his complaints were accepted. 36 The plaintiff's claim against the first defendant is for professional negligence as a solicitor in the conduct of court proceedings. Fundamental to such a claim is the determination of the existence, nature and extent of the solicitor's retainer. 37 The 4th amended statement of claim asserts that in November 2000 the plaintiff retained the first defendant to represent him in personal injury proceedings; that he withdrew the retainer in October 2002; that on 24 April 2004 he retained the second defendant in the District Court proceedings; that without the knowledge or consent of the plaintiff between 24 April 2004 and 30 April 2004 the second defendant retained the first defendant to act on behalf of the plaintiff and that this retainer was terminated by the plaintiff on 22 September 2004. There is no allegation in the 4th amended statement of claim that the plaintiff expressly retained the first defendant at any time after October 2002; the 4th amended statement of claim expressly avers that the retainer of the first defendant by the second defendant was without the plaintiff's knowledge and consent; nowhere is it asserted that the plaintiff ratified that retainer though the pleading proceeds on the basis that in some way, at some time, there was a retainer of the first defendant by the plaintiff. The 4th amended statement of claim avers that the first defendant advised the plaintiff that he would not be willing to represent the plaintiff until he had first examined the file. There is no express assertion that the first defendant examined the file and agreed to represent the plaintiff at any time. In my opinion the 4th amended statement of claim in its allegations in respect of the retainer lacks reasonable clarity, is confusing and ambiguous and fails to set out a summary of the material facts. It is embarrassing in a technical sense. 38 Paragraphs 11 to 18 inclusive and paragraph 24 of the 4th amended statement of claim precede the allegations of negligence collected in paragraph 27. It is unclear if they are allegations of negligence or merely statements of background fact, though the terms of paragraph 30 of the 4th amended statement of claim suggest the latter. In so far as it is intended that they be regarded as allegations of negligence they fall within the advocates immunity as being acts or omissions in the conduct of the case in court or preliminary decisions affecting the way the case was to be conducted when it came to a hearing. The paragraphs are also objectionable in that they are unclear, imprecise and introduce irrelevant material.

[41]

The claim against the second defendant 54 The second defendant submitted that the allegations of negligence made against him in the 4th amended statement of claim all fall within the advocates immunity; the second defendant relied upon that immunity as a defence to those allegations; accordingly it would be futile to allow those allegations to remain and they should be struck out; if those allegations were struck out no cause of action would remain against the second defendant; accordingly the 4th amended statement of claim, as against the second defendant should be struck out and the proceedings against him dismissed. 55 The second defendant also submitted that the pleadings against him were embarrassing, confusing, internally inconsistent, causally irrelevant and that even if the plaintiff's allegations were upheld no loss would result to him. These matters would also, it was submitted, justify the striking out of the 4th amended statement of claim and the dismissal of the proceedings against the second defendant. 56 Each of the allegations of negligence against the second defendant is set out in paragraph 12 of the 4th amended statement of claim. The acts and omissions alleged against the second defendant in paragraph 12 save for 12(viii) were acts or omissions in the conduct of the case in court or in out of court work leading to a decision affecting the conduct of the case in court. As such they are within the advocates immunity. This conclusion follows from the application of the principles earlier referred to in this judgment. In my opinion the immunity is available to the second defendant whether he was retained by the first defendant or retained directly by the plaintiff. 57 The allegations in paragraph 12(viii) are objectionable. The allegations do not identify the "financial demands" of the first defendant, they do not assert how the advice of the second defendant was negligent or how such advice was causative of the loss alleged by the plaintiff. The allegations, even if proved, would not sustain a finding of negligence against the second defendant. 58 In my opinion each of the allegations of negligence against the second defendant should be struck out. The consequence of this is that the 4th amended statement of claim as against the second defendant should be struck out and the proceedings against him dismissed. Accordingly it is not necessary for me to consider the additional grounds advanced by the second defendant that the pleading against him was embarrassing, confusing, internally inconsistent and causally irrelevant.

David Charles Bott v Trevor John Carter

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Cases Cited (20)

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