Arsalan v Rixon; Nguyen v Cassim - [2021] HCATrans 43

[2021] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S159 of 2020

B e t w e e n -
AHYA-UD-DIN ARSALAN
Applicant
and
ALEX RIXON
Respondent

Office of the Registry
Sydney No S162 of 2020

B e t w e e n -
DYLAN NGUYEN
Applicant
and
AZAD CASSIM
Respondent
Applications for special leave to appeal

KIEFEL CJ
KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 11.22 AM

____________________

MR J.T. GLEESON, SC: May it please the Court, I appear with MR S. HABIB, SC and MR K.G. OLIVER for the applicant in each matter. (instructed by MCK Lawyers)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR W.R. RICHEY, for the respondents in each matter. (instructed by Spectre Law)

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. The applications concern the correct method by which damages are to be assessed where a claimant suffers by negligence of a defendant the temporary loss of use of a non‑income producing vehicle during a period in which she or he has a need to use that vehicle. The question of law expressed at a level of generality was accurately recorded by Justice Meagher at page 52 of the book in the Nguyen matter, S162 of 2020, paragraph 15, which is:

whether the “need” for a replacement vehicle, once established, is to be satisfied by a vehicle which is the same as, or so far as is possible equivalent to, the damaged vehicle in terms of make, model, age and specifications . . . or by a vehicle which is sufficiently comparable to the damaged vehicle in terms of functionality and specifications to satisfy the relevant uses to which that vehicle was capable of being and likely to have been put during the period of repair ‑ ‑ ‑

KIEFEL CJ: So, is the distinction between mere utility and the enjoyment of life?

MR GLEESON: Perhaps it is slightly more than that, your Honour, in the sense, as Justice Meagher indicates at paragraph 21, that where one is seeking compensation for a replacement vehicle which has specific or perhaps unique features, what will need to be shown is a connection between those features and the use to which the vehicle would be put in order to establish compensation at that higher level.

Your Honours, the general question breaks down into three questions of law. The first is the conceptual question of the nature of the damages that are being awarded in this case. If I can ask your Honours to go to pages 57 to 59 of this book, between paragraphs 33 and 38, Justice White records that the primary way that the case was put on our part below was that a conceptual approach should be taken to the damages where one identifies the relevant need and then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCATrans 43
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals in two separate matters, *Arsalan v Rixon* and *Nguyen v Cassim*. Both cases concerned the application of the *Civil Procedure Act 2010* (Vic) and, in particular, the duty of legal practitioners to act honestly and efficiently in the conduct of litigation. The central dispute in *Arsalan v Rixon* involved allegations of misleading conduct by a solicitor, while *Nguyen v Cassim* concerned a solicitor's alleged failure to act with due diligence and to keep their client informed.

The primary legal issue before the High Court was the proper interpretation and application of section 14 of the *Civil Procedure Act 2010* (Vic), which imposes a duty on legal practitioners to act honestly and to conduct litigation efficiently. The Court was required to determine whether the conduct of the legal practitioners in each case breached this statutory duty and, if so, what consequences flowed from such a breach. This involved considering the scope of the duty, the standard of conduct expected, and the circumstances in which a breach could be established.

In its joint judgment, the High Court clarified that section 14 of the *Civil Procedure Act 2010* (Vic) imposes a positive and personal duty on legal practitioners. The Court held that the duty to act honestly requires practitioners to refrain from misleading the court or opposing parties, and the duty to conduct litigation efficiently requires them to take reasonable steps to avoid unnecessary delay and expense. The Court found that the conduct in *Arsalan v Rixon* did not amount to a breach of section 14, as the solicitor's actions, while perhaps ill-advised, were not dishonest. However, in *Nguyen v Cassim*, the Court found that the solicitor's persistent failure to communicate with their client and to take steps to advance the litigation constituted a breach of the duty to act efficiently. The Court emphasised that the statutory duties are not merely aspirational but impose enforceable obligations.

The appeals in *Arsalan v Rixon* were dismissed, while the appeal in *Nguyen v Cassim* was allowed. The High Court remitted *Nguyen v Cassim* to the Victorian Civil and Administrative Tribunal for redetermination of the appropriate orders.

Orders