Bird v Ford - [2013] NSWSC 264

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bird v Ford [2013] NSWSC 264
Hearing dates: 26 November 2012, 27 November 2012, 28 November 2012, 29 November 2012, 30 November 2012, 5 December 2012
Decision date: 28 March 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Judgment for the defendants.
2. The plaintiffs to pay the defendants' costs of the proceedings, as agreed or assessed.
3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:
TORTS - negligence - professional negligence - legal - what advice was given about the Education Act 1990 - whether the advice given was not to pursue proceedings in Court - were the plaintiff's misled as to the defendants' expertise - two retainers - defendants' duty to the plaintiffs - was the advice given under the first retainer negligent or clearly wrong - the second retainer - immunity from suit - were the proceedings brought entirely misconceived, having no prospects of success - causation - damages - non-economic loss - economic loss - legal expenses - medical treatment expenses - proportionate liability - orders

EVIDENCE - witnesses - reliability of evidence - first defendant's evidence preferred over first plaintiff's evidence
PROCEDURE - evidence - application for leave to rely upon late served affidavit - application granted
Legislation Cited: Civil Liability Act 2002
Commission for Children and Young People Act 1998
Education Act 1990
Fair Trading Act 1987
Legal Profession Act 1987 (repealed)
Legal Profession Act 2004
Supreme Court Act 1970
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Workers' Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601
Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419
Capebay Holdings Pty Ltd v Sands [2002] WASC 287; [2003] ANZ ConvR 170
Capital Brake Service Pty Limited v Meagher [2003] NSWCA 225
Carter v NSW Netball Association [2004] NSWSC 737
CF v The State of New South Wales [2003] NSWSC 572; (2003) 58 NSWLR 135
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Donnellan v Woodland [2012] NSWCA 433
Hedges v Australasian Conference Association Limited [2003] NSWSC 1107
Heydon v NRMA Ltd; [2005] NSWCA 374; (2005) 51 NSWLR 1
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254; (2012) 293 ALR 764
Keefe v Marks (1989) 16 NSWLR 713
Kolavo v Pitsikas [2003] NSWCA 59
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; (2008) 77 NSWLR 205
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Seymour v Swift (1976) 10 ACTR 1
Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Watson v Foxman (1995) 49 NSWLR 315
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Wolfenden v International Theme Park Pty Ltd t/as Wonderland) [2008] NSWCA 78
Category: Principal judgment
Parties: Vrede Jane Bird (First Plaintiff)
Gordon Phillip Bird (Second Plaintiff)
David Clifton Ford t/as Emil Ford & Co (First Defendant)
Gary Cedric Pritchard t/as Emil Ford & Co (Second Defendant)
Representation: Counsel:
Mr DE Baran (Plaintiffs)
Mr G Craddock SC (Defendants)
Solicitors:
John Stonham & Co (Plaintiffs)
Mullane & Lindsay (Defendants)

File Number(s): 2010/232539
Publication restriction: None

Judgment

The plaintiffs' son was expelled from his school in March 2007, after he had earlier been warned that if he engaged in any further misbehaviour, he would be expelled. With the assistance of her solicitor, Mrs Bird sought the retraction of his expulsion, complaining that her son had not been given procedural fairness before the decision to expel was made. Discussions with the principal and others in relevant authority did not achieve the reversal of the decision, even when court action was threatened. Mrs Bird then approached the Law Society of New South Wales to find a specialist in education law and in June 2007 the first defendant, Mr Ford, was instructed. In these proceedings the plaintiffs bring claims against Mr Ford in negligence even though as the result of his work, in August 2007 the school offered to re-enrol the child in 2008.

Mrs Bird rejected the school's offer, informing the school that she would take proceedings, despite Mr Ford's advice against litigation being pursued. Proceedings were brought in this Court, notwithstanding advice later given by both Mr Ford and Mr Davidson SC, that they should not be pursued.

Mrs Bird commenced the proceedings as tutor for her son. They were brought against both the school and the former principal who made the decision to expel. The plaintiffs also pressed a claim in contract. Judicial review of the expulsion decision was sought; as well as a declaration that it was invalid; an order setting aside the decision; and an order requiring the school to re-admit the child.

Brereton J granted expedition, but Einstein J refused an application for a pseudonym order at the hearing on 5 December 2007 (see Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419). On 7 December, the proceedings were dismissed, with the result that the plaintiffs had to bear the school's costs.

The plaintiffs' case is that Mr Ford's warnings did not go far enough. They claim that Mr Ford should have earlier advised them that they had no case; that the Court had no jurisdiction to entertain any application that they could bring; and that the proceedings were misconceived. They say that had that advice been given, the proceedings which they brought would not have been taken; the case would not have received publicity; Mrs Bird would not have suffered psychiatric injury; and the plaintiffs would not have suffered the economic damages which they now pursue against Mr Ford.

The Civil Liability Act 2002

Under the Civil Liability Act 2002, a plaintiff pursuing a negligence claim must establish that the defendant owed him or her a duty of care; that there was a breach of that duty; that damage has been suffered; and that the damage was caused by the breach of the duty. Difficult questions can arise about the nature and extent of a particular duty, as well as in relation to whether there has been a breach of that duty and whether any breach has caused any loss.

In this case there was finally no issue as to the nature of Mr Ford's duty; that Mrs Bird had suffered a psychiatric injury; and that the plaintiffs had incurred certain costs in the pursuit of the proceedings which they brought against the school and the other litigation which ensued. Whether Mr Ford had breached his duty to them and whether, if he had, he had caused the claimed damages was in issue, as was the question of whether he had any immunity from suit.

The issues and what was agreed

The allegations of negligence identified in the amended statement of claim were:

" ...

4 On or about 6 June 2007 the Plaintiffs retained the Defendants and the Defendants agreed to be retained to provide legal advice in relation to the expulsion of the Plaintiff's son from Broughton Anglican College ("the school").

Particulars of Retainer Agreement

(a) To provide advice in relation to the expulsion of their son from the school.

(b) To advise on the correct and appropriate application to be made to an appropriate Court.

(c) To formulate the appropriate relief to be sought in the Court.

(d) To instigate any proposed proceedings in an appropriate process which sought the appropriate relief.

(e) To ensure that any adverse record in relation to their sons alleged conduct at the school was expunged from the school records.

5 The particulars of the retainer agreement were in part evidenced by documents from the Defendants to the Plaintiffs on or about 12 June 2007 and 24 August 2007.

6 Other particulars of the retainer agreement were in part evidenced by conversations between the First Plaintiff and Mr David Ford wherein the First Plaintiff outlined the advice which she and the Second Plaintiff required and Mr Ford outlined the action which would be taken to address those problems.

....

10 In or about August 2007 Mr David Ford represented to the Plaintiffs that he possessed all the necessary expertise and experience in Education Law to provide appropriate advice to the Plaintiffs and to make any appropriate application to an appropriate Court seeking the appropriate relief.

11 The Plaintiffs relied on the above representation.

12 In 2007 the Defendants breached the retainer agreement with the Plaintiffs and further acted negligently in the provision of advice in relation to the retainer agreement.

Particulars of Breach of Retainer and Negligence

(a) Advising the Plaintiffs that an application should be made in the Supreme Court of New South Wales for relief which that Court could not grant.

(b) Failing to advise or adequately advise that there was a risk that the Court could not grant the relief sought.

(c) Commencing proceedings in the Supreme Court of New South Wales (proceedings number 5105 of 2007) which proceedings were misconceived and had no prospects of success.

(d) Failing to advise or adequately advise of the risks of the proceedings.

(e) Failure to make an application for a pseudonym to be used for the Plaintiffs son in the Supreme Court of New South Wales proceedings.

(f) Failure to properly advise on costs."

Complaints were also made that Mr Ford's representations that he had the necessary expertise and experience to provide advice were misleading and deceptive conduct under s 68 of the Fair Trading Act 1987.

By his defence, Mr Ford claimed that there had been two retainers; that both he and Mr Davidson had expressly advised that proceedings should not be commenced; that even if the expulsion was overturned by order of the Court, the school could subsequently expel the plaintiffs' son in any event; that the risk and cost of the litigation was not justified; that the plaintiffs proceeded in any event, not relying on his advice; and that an application for a pseudonym order had been made, but was refused. The alleged representations were denied. Mr Ford also pleaded an immunity from suit and that on the pleaded case, Mr Davidson was a concurrent wrongdoer under part 4 of the Civil Liability Act.

The issues initially identified at the hearing as requiring the Court's resolution were:

"1. The terms of the defendant's retainer by the plaintiff.

2. Whether there was one retainer or two?

3. The content of the defendant's duty of care?

4. Was there a breach of the retainer and/or duty of care? In particular:

(i) were the proceedings in the Equity Division against the school manifestly hopeless and

(ii) if yes to (i) does that amount to a breach of the retainer(s) or the duty of care?

5. If there was a breach of the duty of care or retainer(s), did it cause loss or damage?

6. Does the Fair Trading Act (as it applied in 2007) apply to the work of a solicitor engaged in litigation?

7. If so, were there representations by the defendant that were misleading or deceptive within the meaning of s 42 (repealed) of the Fair Trading Act?

8. If there were representations that were misleading or deceptive, did they give rise to loss or damage compensable under s 68?

9. Is the defendant immune form suit under the principles stated in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1?

10. What is the plaintiff's compensable loss or damage if any? In particular was any act or omission of the defendant the legal cause of the plaintiff's psychiatric condition?

11. Is this an apportionable claim within the meaning of Part IV of the Civil Liability Act 2002?"

There was finally no issue that the parties had entered two retainer agreements: the first in relation to the initial advice which Mr Ford gave as the result of which they pursued a negotiated settlement with the school and the second in relation to the pursuit of the proceedings brought in the Supreme Court. There was also finally no dispute as to the nature of Mr Ford's duty; that advocate's immunity applied to the work that Mr Davidson, senior counsel, did; and that it applied to certain of the work that Mr Ford did in relation to the Supreme Court proceedings.

The plaintiffs claimed that they did not seek to re-litigate the controversy decided against them by Einstein J, or to impugn the decision which his Honour had reached. To the contrary, they said the decision reached was not only correct, it was obvious. Nor, apart from one matter, the timing of the application for the pseudonym order, did they complain about the way in which the case was actually conducted. Mr Ford's case was that if negligence were established, it would be found that Mr Davidson was a concurrent wrongdoer. The plaintiffs disputed this, contending that Mr Davidson had not done them any wrong.

What was pressed was that from the outset Mr Ford had been negligent in the advice which he gave Mrs Bird that the school was obliged to afford their son procedural fairness, before expelling him. In the result they claim that they wasted all of the costs which they incurred in their pursuit of the school and in their litigation with Mr Ford and the solicitors who later acted for them, because they never had any basis upon which to complain about the school's conduct in expelling their son.

Leave to rely upon Mr Davidson's late served affidavit

Another issue arose in relation to the calling of evidence from Mr Davidson.

In September 2012, the parties were directed to file a schedule identifying the affidavits on which they would rely at the hearing. No reference was there made to Mr Davidson. By that time Mr Ford had, however, long been in communication with Mr Davidson about providing an affidavit. Mr Davidson had declined to do so on his insurer's advice, at a time when it appeared that the plaintiffs intended to take steps to join him as a party to the proceedings. Once it became apparent that he was not to be joined, Mr Ford pursued the affidavit, but gave no notice of these matters to the plaintiffs.

It was in October 2012 that Mr Davidson agreed to provide an affidavit, which was served on the plaintiffs on 5 November, without any prior notice and without any application to the Court for leave to rely upon it. The hearing was due to commence on 26 November. The week before the hearing, the plaintiffs advised Mr Ford that leave to call Mr Davidson would be opposed, if any application was made. That was reiterated at the commencement of the hearing. That generated an application for leave to call Mr Davidson, which was pressed on the second day of the hearing, while Mrs Bird was being cross-examined.

Mr Cavanagh, Mr Ford's solicitor, then gave evidence in support of the application that he had not considered that there was any need to put the plaintiffs on notice that Mr Ford intended to call Mr Davidson prior to the service of his affidavit and that the failure to put on a motion seeking leave to rely on the affidavit was his.

The question of whether the leave sought should be granted thus arose in circumstances where there was no issue between the parties that Mr Davidson's evidence was relevant; that Mr Ford had failed to comply with the Court's orders in relation to the service of affidavits; that Mr Ford ought to have notified the plaintiffs of his intention to call Mr Davidson; that in the circumstances leave to call Mr Davidson ought earlier to have been sought by motion; that in the result, there had been a failure to adhere to obligations imposed upon him by the Civil Procedure Act 2005; and that Mr Ford's failures were the result of representative error.

The application for leave was opposed even though Mrs Bird had sworn an affidavit which responded to Mr Davidson's affidavit. Leave was opposed, not only because of Mr Ford's failure to adhere to his obligations, but also because relevant documents, such as Mr Davidson's brief and notes which he had kept, had not been served on the plaintiffs. The loss of the forensic advantage which would have flowed to the plaintiffs if Mr Davidson was not called, was also relied on.

For Mr Ford's part it was conceded that there should be a costs order against him, in respect of the motion and the adjournment which it was then proposed would meet the prejudice which had been identified by the plaintiffs, if the leave sought were granted, in order that Mr Davidson's brief and his notes could be provided and considered.

It was argued for the plaintiffs that these were not matters which the Court could take into account, given the provisions of s 58 and s 61 of the Civil Procedure Act. They provide:

"58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

61 Directions as to practice and procedure generally

(cf SCR Part 23, rule 4; Act No 9 1973, section 68A)

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2) In particular, the court may, by order, do any one or more of the following:

(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:

(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b) it may strike out or limit any claim made by a plaintiff,

(c) it may strike out any defence filed by a defendant, and give judgment accordingly,

(d) it may strike out or amend any document filed by the party, either in whole or in part,

(e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f) it may direct the party to pay the whole or part of the costs of another party,

(g) it may make such other order or give such other direction as it considers appropriate.

(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court."

On the construction urged for the plaintiffs, the Court had no discretion to grant the leave sought and accordingly, the defendants' application had to be refused. That conclusion was submitted to be consistent with the High Court's decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

I did not accept the plaintiffs' submissions as to the construction of the Civil Procedure Act, taking the view that all of the circumstances which had arisen were matters relevant to take into account in determining whether the discretion available under s 58 to grant the leave sought, should be exercised. That was expressly encompassed by s 58(2)(b)(vii). Also relevant to be considered was whether or not the plaintiffs would suffer any prejudice which could not be ameliorated by appropriate orders, as to costs and adjournment, bearing in mind the High Court's approach in Aon.

In my view, the plaintiffs' loss of a potential forensic advantage from the failure to call Mr Davidson could not be the overriding consideration. It was difficult to see why any Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, inference available in circumstances where he had not been called by Mr Ford, was not lost once steps were taken to call him. If the plaintiffs' objection to him being called had succeeded, that of itself would have provided the explanation which would have displaced the inference in their favour.

It is apparent that both s 58 and s 61 of the Civil Procedure Act grant the Court discretions which are to be exercised in the light of the overriding purpose specified in s 56, namely 'the just, quick and cheap resolution of the real issues in the dispute or proceedings'. The issues in the proceedings are those which the parties raise by their pleadings. Whether Mr Davidson was a joint tortfeasor was one of those issues. Whether Mr Ford ought to have advised the plaintiffs that they had no arguable case to pursue before this Court and whether he did were also in issue.

There was thus no question that Mr Davidson's evidence was relevant to the matters which the parties had identified at the commencement of the hearing as requiring the Court's resolution. When the motion was pressed, Mrs Bird was in cross-examination. That had revealed that Mr Ford had kept meticulous and accurate notes of various conversations which he had had with her and advice both he and Mr Davidson had given her.

In the evidence which it was proposed to call from Mr Davidson, amongst other things he corroborated aspects of Mr Ford's evidence, evidence which Mrs Bird herself largely agreed with, but some with which she disagreed. Mrs Bird had already sworn an affidavit responding to Mr Davidson's evidence. In all of those circumstances, I concluded that justice required that the leave sought be given. With a costs order and an adjournment of several hours, the prejudice which flowed from Mr Ford's failure to adhere to his obligations was addressed and there was in the result no significant delay in the hearing.

It was for these reasons that I granted the leave sought.

Credit issues

The plaintiffs' case rests largely on evidence given by Mrs Bird. Mr Bird gave no evidence as to his understanding, at any time, of Mr Ford's advice.

Mr Ford dealt with Mrs Bird. Various factual disputes emerged from their evidence. That both Mrs Bird and Mr Ford endeavoured to give truthful evidence was not in issue. It was the reliability of their respective evidence which has to be determined.

In resolving this issue, it is necessary to remember that human memory is fallible, as McClelland CJ in Eq discussed in Watson v Foxman (1995) 49 NSWLR 315, where his Honour observed at 318:

"Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as misleading) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Their cross-examination revealed in both cases that Mrs Bird and Mr Ford's recollections of what had occurred at particular times was not perfect. Mr Ford readily made concessions in cross-examination, when warranted, even when contrary to his interests. So did Mrs Bird, but also to be considered in her case is that she insisted in cross-examination on having had particular understandings and beliefs, even when they were inconsistent with other evidence which she had accepted as being accurate.

For his part Mr Ford had not only kept detailed notes of his conversations with Mrs Bird and Mr Davidson, but also of his thoughts as to matters about which he had advised Mrs Bird. Mrs Bird accepted that those documents in large part accurately reflected their discussions. Mr Davidson also agreed with these accounts. They thus shed considerable light on what had transpired between Mrs Bird and Mr Ford and when. Mr Davidson and Mr Winram, then employed by Mr Ford as a junior solicitor, also gave evidence which shed considerable light on the factual controversies. Their evidence was largely supportive of that given by Mr Ford.

The conclusion which I have reached on all of this evidence is that in the case of conflict, Mr Ford's evidence must be preferred over that of Mrs Bird.

It is sufficient to explain this conclusion by reference to two critical aspects of Mrs Bird's evidence. Firstly, that from her first discussion with Mr Ford, he advised her that the school had breached s 47(h) of the Education Act 1990, by failing to give her son procedural fairness before expelling him. Secondly, that she did not get the impression from Mr Ford that he was advising her not to pursue court proceedings.

What advice did Mr Ford give Mrs Bird about the Education Act 1990?

That Mr Ford gave Mrs Bird the advice she claimed she received, even in their very first telephone discussion in June 2007, namely that the school had breached s 47(h) of the Education Act by failing to give her son procedural fairness before expelling him, is on its face rather implausible, given the terms of the section itself. There is no question that Mr Ford and Mrs Bird discussed s 47(h) of the Education Act, but he denied having given her such advice, or advice that the school had engaged in conduct which constituted 'clear breaches of the law', as was her evidence and what she wrote to him in an email of 15 August 2007.

It was common ground that the Education Act imposed no obligation on a school to give procedural fairness when making a decision to expel. That is apparent on its face and hardly a matter about which an error of the kind claimed by the plaintiffs, is likely to have been made by Mr Ford, given his practice and experience. That it was advice he had given is not suggested by what Mr Ford wrote at various times, including when Mr Davidson was briefed to advise.

The Education Act imposes an obligation on parents to cause their school age children to enrol at and attend a government school, or a registered non-government school, or to be to be registered for home schooling (s 22). Section 47 appears in Division 3 Registration of non-government schools of Part 7 Registration of non-government schools and of children for home schooling. There the relevant sections provide:

"47 Registration requirements for non-government schools

For the purposes of this Act, the requirements for the registration of a non-government school are as follows

...

(h) school policies relating to discipline of students attending the school are based on principles of procedural fairness, and do not permit corporal punishment of students,

...

47A Effect of section 47 on certain contracts

The operation of section 47 is not to be regarded as giving rise to any implication that it is a term of any contract (whether or not written) between the proprietor of a registered non-government school and a parent of any child enrolled at the school that the school comply with the requirements imposed by or under this Act for registration of non-government schools or that failure to comply with any such requirement in itself gives rise to any civil cause of action."

In cross-examination, Mr Ford said that it was not his opinion that the school had breached s 47(h). It was while the statement of claim was being drafted, that real consideration was given to what use could be made of the section to support the case which the plaintiffs proposed to pursue. He was of the view that the section provided a basis for an argument that it reflected a State Government view that private schools should afford their students procedural fairness when dealing with disciplinary matters and that this supported other arguments being advanced in the plaintiffs' case. While the section was new and had not been enacted when the school was registered, it was a provision that applied to the school. Thus the school would have to demonstrate compliance with the section to the Board of Studies, when it sought re-registration. He said that these were matters he discussed with Mrs Bird at the time that the statement of claim was settled.

This evidence was consistent with other evidence. For example, that the school had breached s 47(h) was not a view advanced to the school in the document Mr Ford provided to the school when a settlement was being pursued. Nor was it a view recorded in the documents he had earlier created, which recorded his thoughts and discussions with Mrs Bird at various times. Nor was it the basis upon which the proceedings were later brought. After Einstein J's decision was given, when Mr Ford was advising the plaintiffs about an appeal, he explained that the argument which relied on s 47(h) had not been not foundational to the case brought, but a back up argument that because of the seriousness of an expulsion, a school owed a duty to the student to afford procedural fairness in any investigation, before expelling the student.

Also to be considered is that Mrs Bird's first June 2011 affidavit did not reveal what advice she was given by Mr Ford, when she first spoke to him in June 2007, or when they first met on 18 June, after a fee agreement had been provided and signed. In this affidavit Mrs Bird gave no account of having received advice on 6 June or later, that the school had breached the law by failing to give her son procedural fairness before he was expelled, as the Education Act required.

Mr Ford responded to Mrs Bird's affidavit. Annexed to his affidavit were numerous documents, including her correspondence, notes he had made about his review of the material he had initially received from her and matters he then wished to discuss with her. They do not recount any advice given in their first telephone discussion about the Education Act, or Mr Ford holding a view that the school had breached the law.

When Mrs Bird wrote to Mr Ford on 6 June, she sent him various documents, referring to an article he had referred her to and her view about the school's breach of the rules of procedural fairness, outlining what she wished to achieve and the damages she wished to pursue. Mr Ford made a note of his thoughts on 12 June. No reference is made in these documents to s 47(h), rather, problems for the school identified by Mr Ford were put in the form of questions, such as whether allegations had been put to the child?; was there an opportunity to respond to the decision maker?; were all relevant witnesses spoken to?. He noted that that there was no 'final straw' and referred to a proposal that the child be withdrawn, rather than expelled. A problem identified for the plaintiffs was noted to be 'who was to be believed'?

Mr Ford's note of his phone conversation with Mrs Bird on 15 June also made no reference to s 47(h), nor did his note of their meeting of 18 June, nor the later written request which he made to the headmaster of the school seeking a meeting, nor the note of his discussion with a representative of the Association of Independent Schools, who contacted him after his approach to the principal.

It was in her reply affidavit of 9 May 2012, that Mrs Bird first referred to having received advice from Mr Ford, in their first telephone discussion, that she could go to the Supreme Court on the basis of a denial of natural justice: 'a requirement under the Education Act'. In her oral evidence she expanded this, saying that Mr Ford had then told her that there was a new provision, s 47(h) of the Education Act, 'where schools must give students the advantage of natural justice and that he felt that a claim could be brought in the Supreme Court to achieve what I wanted and that was to have the expulsion revoked and there to be no record'.

In cross-examination, Mrs Bird said that she had learned from a government school teacher who lived across the street about regulations about expelling a child and the general concept, but that until she spoke to Mr Ford, she did not know that procedural fairness was part of the law. While she agreed that the concept had earlier been raised in correspondence sent to the school on her behalf by the solicitors who acted for her before she instructed Mr Ford, she denied having discussed with them what could be said to the school, as to what it had done wrong. This evidence was difficult to credit.

When she first spoke to Mr Ford on 6 June, Mrs Bird had already pursued the reversal of her son's expulsion with school and other authorities, in both correspondence and at meetings, on the basis of a complaint that the school had failed to provide her son procedural fairness, before expelling him. On 20 April, her solicitors had written to the Principal advising that from their instructions, it would appear that the child 'had not been accorded procedural fairness nor was there any attempt to get at the truth' and proper procedures were not followed when the Deputy Pastoral Care interviewed him.

Consistently with this, Mr Ford's file note of his first discussion with Mrs Bird records 'no procedural fairness' and that she had already spoken to the Bishop. There is no mention of s 47(h) then having been discussed.

Despite this, in cross-examination Mrs Bird insisted that the legal idea of procedural fairness was not one with which she was familiar, before she spoke to Mr Ford and that it was something which he first told her about, in their conversation on 6 June. This evidence cannot be accepted.

Mr Ford kept meticulous written file notes of his later conversations with Mrs Bird and Mr Davidson and others to whom he spoke, in the course of the matter. In cross-examination, Mrs Bird accepted almost entirely that those notes were an accurate reflection of her discussions with him. For his part Mr Davidson also accepted Mr Ford's notes of their conversations as being accurate. Mr Ford also kept notes of his thoughts about matters which he discussed with Mrs Bird and which he wrote to her about. In none of these documents is there any record that Mr Ford had the view that the Education Act required the school to give a student natural justice, or procedural fairness, before a decision to expel was made.

The first costs agreement identified that the work to be undertaken was to advise of the potential for having the expulsion decision set aside; the means for doing so and taking steps, if required, but not commencing court proceedings.

Mr Ford was instructed to pursue a meeting with the school and on 19 June wrote to the Principal, suggesting a simple agenda 'to consider whether or not the decision to expel should, in all fairness, be set aside because of procedural fairness', On 20 June, Mr Ford discussed with Mrs Bird two procedural fairness points she had not previously advanced to the school. None of these documents refer to a discussion about s 47(h).

In cross-examination, Mr Ford accepted that when he responded to Mrs Bird's 15 August email, he did not correct her understanding of his advice, that there had been 'clear breaches of the law on the School's part'. Mrs Bird said this in a context where she asked Mr Ford what advice the school might be receiving from its solicitors, after she had refused the school's offer to re-enrol her son in 2008. Mr Ford responded both in a discussion and in writing on 17 August. He did not there suggest that the school's solicitors might be advising the school about s 47(b) or that the process which it had followed had been procedurally fair, but rather that they might be advising that the court would not intervene, because even if a procedurally fair process had been followed, expulsion would have resulted, given the child's behaviour and that the evidence of the school's witnesses would be preferred over that which Mrs Bird and her son might give. He said that the school's solicitors might also be advising that even if the school lost any proceedings, it could then expel the child, using procedurally fair procedures.

The result of this advice was that Mrs Bird agreed to obtain counsel's advice, before any proceedings were commenced. In the September meeting, when Mr Davidson's advice was given, it also does not appear that anyone advanced the view that the Education Act had been breached. To the contrary, the discussion ranged over the problems with the litigation which Mrs Bird wanted to pursue and an explanation of why she was being advised by both Mr Ford and Mr Davidson not to proceed.

Mr Winram was present at the 25 September meeting, as well as at an earlier meeting with Mr Ford and Mrs Bird. In cross-examination, he could recall no discussion in those meetings about provisions of the Education Act being invoked to assist the plaintiffs' case.

Mr Ford and Mrs Bird certainly did come to discuss the provisions of the Education Act which came to be relied on in the arguments advanced by Mr Davidson in the Supreme Court proceedings. That was consistent with Mr Ford's evidence.

Mrs Bird's evidence that Mr Ford had advised her from their very first discussion, that the school had breached s 47(h) of the Education Act by failing to give her son procedural fairness before expelling him is in the face of all of this evidence simply not plausible and cannot be accepted.

Did Mr Ford advise Mrs Bird not to pursue proceedings in Court?

Whether Mr Ford was confident that the plaintiffs would succeed and what advice he gave as to their prospects was in issue. In cross-examination, Mrs Bird insisted that she did not gain the impression from Mr Ford that he was advising her not to pursue court proceedings.

In her first affidavit Mrs Bird did not refer to the advice given to her by Mr Ford about pursuing court proceedings. She did attach an email of 9 August, which he wrote to her after she had refused the school's offer to re-enrol her son in 2008. There he urged her to pursue a resolution which would not involve court proceedings, which he advised would be expensive; with no guarantee of success; with a loss meaning that the school's costs would have to be paid; and that even a victory was likely to be pyrrhic, coming too late to be of any use, disrupting their son's schooling and placing them under more stress. He recommended the further pursuit of a settlement.

Mrs Bird accepted that a settlement should be pursued, but insisted that the school had to remove the expulsion, as well as agreeing to other terms, on the basis that if the school did not fully comply by 20 August, proceedings would be commenced.

Also attached to Mrs Bird's first affidavit was the email of 17 August, where again Mr Ford canvassed the risks of the pursuit of the proposed litigation. He advised of the cost and stress of such litigation; the risk of losing, given that the Court might not accept their evidence, given discrepancies in accounts given by their son and others; that even if the procedures followed were found to be unfair, that the Court might not intervene; that any victory might be hollow and would have an impact on their other child; and that even if they succeeded, the school could then apply the correct procedure and expel him again. The plaintiffs considered that advice and rejected it on 20 August, instructing that they wished to proceed. A fresh costs agreement for the court proceedings was then entered.

In her first affidavit Mrs Bird said that at the conference with Mr Davidson on 25 September, the commencement of proceedings was discussed, as were the reasons for not proceeding and expedition. However:

"At no time during this conference did Mr Ford, Mr Davidson, or Mr Winram inform me that their advice to proceed to the Supreme Court would create a result directly against my instructions that there be no record of [the] expulsion."

Mr Ford disputed this. On his evidence he had advised Mr Bird that her wishes in that regard were unachievable. Attached to Mr Ford's affidavit were various contemporaneous notes as to advice he gave, in which he repeatedly counselled Mrs Bird against the pursuit of litigation, including for example, when she rejected the school's offer at the meeting with the new Principal in August 2008; after he had first conferred with Mr Davidson on 17 August; at the conference on 25 September when Mr Davidson also painted a gloomy picture of their prospects of success and advised against its pursuit; and in November, when another offer from the school was discussed.

It was in her May 2012 reply affidavit that Mrs Bird identified matters which she claims Mr Ford failed to convey to her, including advice given by Mr Davidson recommending that proceedings not be pursued.

Mrs Bird did not, however, dispute the accuracy of the note Mr Ford kept of the meeting with the Principal of the school on 6 August, in which the Principal accepted that there had been problems with the procedure followed during the expulsion process and offered a return to the school in 2008. That note recorded that Mr Ford then also advised her about the difficulty, cost and risk of the litigation she was contemplating, rather than accepting the school's offer of re-enrolment in 2008.

On 9 August, Mr Ford again advised her to pursue a settled outcome further. On 10 August he recorded that he considered her views as to what she wanted to achieve were irrational and almost impossible to achieve and that she needed to acknowledge the advice he had given her, as to the downsides of court proceedings. On 13 August, he spoke to her again, encouraging her not to be too prescriptive in what she required in a settlement. He was then instructed to pursue a settlement further on the basis of a return in 2007.

On 14 August, after the school refused to entertain a return to school in 2007, Mr Ford again advised Mrs Bird that she needed to consider going to Court carefully, given the cost; that there was no guarantee that she would win; and that the Court might not make a decision within a time frame, which would achieve anything. He also suggested seeking counsel's advice.

It was in cross-examination about what she then understood Mr Ford to be advising her, that Mrs Bird said that she did not get the impression from Mr Ford, that he did not want her to go to Court and that he was 'very confident with the Education Act'. That simply does not reflect Mr Ford's repeated, documented, advice or the suggestion that she should get counsel's advice before proceeding with the litigation he had repeatedly counselled her against pursuing. Mrs Bird's claimed understanding is entirely contrary to the advice which she had been repeatedly given to that point by Mr Ford and with the advice later given by both he and Mr Davidson at the meeting in September.

In August Mrs Bird considered the school's approach to be totally unacceptable. She considered that the Principal's use in his letter of the word 'withdrawal' rather than expulsion, reflected that there might have been a criminal tampering with school records, even though her stated purpose in her pursuit of the school was to have expunged from its records that there had been an expulsion. Mr Ford advised her that there was no apparent criminal conduct on the part of the school by the use of that word.

Mrs Bird had long been intent on pursuing litigation if the school would not have her child back in 2007. That was her intention even before she instructed Mr Ford. She decided to pursue that intention when settlement on terms which she was prepared to accept were not forthcoming from the school, when she met with the new Principal in August, notwithstanding being then advise that the case should not be pursued. That was advice Mr Davidson also gave her, Mrs Bird having instructed Mr Ford that she wanted counsel's advice before she proceeded. She also rejected his advice, deciding to pursue litigation, plainly being convinced that commencement of the proceedings was the way in which the school would be brought to the settlement she required.

Despite the evidence of repeated advice from Mr Ford and Mr Davidson that the litigation should not be pursued, given the state of the law, its costs and risks, in her cross-examination Mrs Bird did not accept that Mr Ford was telling her that there was a pretty good chance that she would lose, insisting that 'Mr Ford told me they had breached the law'. Initially she did not deny that Mr Davidson had given her such advice, but said that he 'came from a different angle of the law side'. When pressed, she said Mr Davidson did not say that there was a 'pretty good chance' of losing, but that he had discussed with her the reasons why she would lose, the main one being that a teacher's evidence would be preferred over hers.

I am satisfied that this evidence may simply not be accepted as reflecting the advice Mrs Bird received, either from Mr Ford or Mr Davidson, given what all of the contemporaneous records show she was advised, when they are considered together with the evidence of Mr Ford, Mr Davidson and Mr Winram. It can only be concluded that Mrs Bird was repeatedly advised by Mr Ford to settle, given the risk of losing the litigation which she wished to pursue, or it providing at best a pyrrhic victory. Her evidence that she did not understand Mr Ford to be advising her not to pursue court proceedings, may simply not be accepted.

Mr Ford's expertise

It is convenient to begin with the plaintiffs' case in relation to Mr Ford's lack of the relevant expertise and how he misled them as to his experience. Their complaints were in summary that:

Mr Ford never told them the truth, that he had never gone to the Supreme Court to seek any judicial review of any action to expel a child from a school.

He did not have the necessary expertise to advise them about such proceedings.

In reality there was never any basis for the view that the procedures which the school had followed when deciding to expel their child had been procedurally unfair.

Not only were the proceedings which they brought entirely misconceived, but from the time that Mr Ford first spoke to Mr Davidson, he was aware not only that no proper relief could be formulated for the plaintiffs to go to Court to pursue, but that the proceedings had no prospects of success. He failed to advise them of this.

I will deal with the other complaints later, but as to the first two, it must be considered that in Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; (2008) 77 NSWLR 205, Campbell JA observed at [352] - [354]:

"What Counts as Misleading or Deceptive Conduct by a Solicitor?

General Considerations

352 There are various ways in which a solicitor might engage in misleading or deceptive conduct in the course of his or her professional activities. Sometimes the task of a solicitor is to advise on the prospects of success of proposed litigation, or about how the courts are ultimately likely to decide some presently undecided legal question. Such advice involves the solicitor making a prediction about the future, and can be misleading or deceptive according to the same criteria as any prediction about what will happen in the future can be misleading or deceptive. When the advice in the present case is not of that character, it is not necessary to elaborate on when a prediction about the future can be misleading or deceptive.

353 Sometimes, in the course of seeking or carrying through legal work, a solicitor will make a specific representation of fact, and whether such a representation of fact is misleading and deceptive is judged by the same criteria as any other representation of fact. Sometimes the representation of fact might be an implied one. One particular circumstance in which an implied representation of fact might be made occurs when the task of the solicitor involves the carrying out of a transaction that requires legal skills, such as carrying through a conveyancing transaction, administering a deceased estate, or drafting a set of documents apt for a commercial transaction the client wants to enter. Though it will depend upon the circumstances of individual transaction, very often the mere entering of the solicitor upon the task involves a representation that he or she has knowledge and skills suited to carrying the task out, and sometimes conveying to the client the message that the task has been completed might involve a representation that is implied or by silence that the task has been completed in accordance with the degree of care and skill of a competent solicitor. In the present case no specific representation of fact is alleged to have been made by Dalla.

354 Sometimes, a solicitor will express an opinion, about the advantages and disadvantages involved in following different proposed courses of action or (more boldly) about which of several different proposed courses of action is more in the client's interests. That sort of opinion is not strictly a prediction about the future, because it involves considering various hypothetical futures only one of which can actually come about, and none of which might actually come about. One aspect of the claims brought against a barrister and solicitors in Heydon v NRMA Ltd was an allegation that they had each breached section 42 Fair Trading Act by the advice they gave. In Heydon v NRMA at [307] Malcolm AJA said:

"A claim in damages for misleading or deceptive conduct is dependent on the effect or probable effect on the person to whom the conduct is directed, as distinct from any want of care or state of mind of the person engaging in the conduct: Yorke v Lucas (1985) 158 CLR 661. Where a legal adviser gives an opinion there is not ordinarily any representation or warranty that the opinion is correct, only that a reasonable degree of professional care and skill has been brought to bear on the formation and expression of the opinion: see the formulation of the duty in the joint judgment in Rogers v Whitaker, (at 483) per Mason CJ, Brennan J, Dawson J, Toohey J and McHugh J. Where negligence and misleading or deceptive conduct are both pleaded based upon the same material facts, it is not uncommon for the result to be that they will succeed or fail together: Boland v Yates Property Corporation Pty Ltd, (at 229; 601) per Gaudron J."

It was the Law Society who referred the plaintiffs to Mr Ford as an expert in education law. When approached he provided Mrs Bird with information as to his training, experience and practice, which included not only having advised many schools, but also having advised parents about disputes with their children's schools. He also told her about having recently represented another student expelled from a private school in not dissimilar circumstances, with similar enrolment rules, where there had been procedural fairness difficulties, and where the school had revoked the expulsion, after he made representations to it.

In his evidence Mr Ford explained that he considered education law to encompass work performed for educational institutions, including litigious work. His work in the education field had not been confined to advice work. He had been involved in cases for educational institutions in various courts and Tribunals, including the Supreme and District Courts in negligence matters, debt collection and educational malpractice. He had conducted proceedings in the Supreme Court on numerous occasions, but not on education matters. He had also advised parents about expulsions, although no other such case had gone to a final hearing. Mr Ford also explained in cross-examination that he had taken other administrative law proceedings for judicial review in the Federal Court, in which Mr Davidson had been instructed.

It was not sought to be established that any of the information Mr Ford provided Mrs Bird was wrong.

In the proceedings he later brought against the plaintiffs in the Distinct Court over his fees, Mr Ford was asked whether he had in the past brought proceedings for declaratory relief in the Supreme Court against a school. His evidence was that he had not. He agreed in cross-examination that this was not something he had discussed with Mrs Bird, when she had asked him 'do you go to the Supreme Court?'. He had advised her that was where such proceedings would be brought. He had however discussed with her the cases which had been brought against other schools in the past, on which reliance was to be placed in the plaintiffs' case. It was apparent, he said, that there had been only a handful of such cases in Australia and one in New South Wales, in none of which he had been involved.

In my view, contrary to the case advanced for the plaintiffs, the evidence that Mr Ford had advised on similar matters in the past, matters which had been resolved without the need for litigation, does not establish any relevant lack of expertise on Mr Ford's part, or any misrepresentation. It seems to rather reflect a successful practice in the relevant field. That Mr Ford had never before pursued an application for declaratory relief in the Supreme Court, also does not make out this part of the plaintiffs' case. He was correct to advise that was where such an application had to be made. Nor do I consider that what he said in response to Mrs Bird's question, could reasonably have been understood as a representation that he had in the past brought such applications.

Also to be considered is that Mr Ford advised the plaintiffs that counsel's advice should be obtained before proceedings were pursued. There was no suggestion that this was inappropriate advice, or that Mr Davidson did not have the necessary experience or expertise to advise the plaintiffs or to represent them in the proceedings. To the contrary, the plaintiffs make no complaint about his advice or representation. Their case is that Mr Davidson did nothing wrong, even though he gave them similar advice to that which Mr Ford gave.

In my view all of this evidence could not establish that any information which Mr Ford provided the plaintiffs about his experience or expertise was wrong, incomplete, misleading or deceptive. The plaintiffs were not misled about Mr Ford's experience or expertise in education law. He had relevant experience in the field, as well as relevant litigious experience. It was of a kind which qualified him to advise them and to make 'an appropriate application to an appropriate Court seeking appropriate relief'. Nor has his conduct to been shown to have been either misleading or deceptive.

In the result this aspect of the plaintiffs' case was not established.

A solicitor's duty and its breach

To resolve the question of whether the plaintiffs have established the negligence they allege, it is necessary to bear in mind the nature of a solicitor's duty to a client, a duty which is well settled.

A solicitor must exercise reasonable care and skill in the provision of legal advice to the standard which may reasonably be expected of legal practitioners (see Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483; Heydon v NRMALtd (2005) 51 NSWLR 1.) As recently discussed in Donnellan v Woodland [2012] NSWCA 433 at [88]:

"88 A legal practitioner owes a duty to a client to take reasonable care and to exercise "due care, skill and diligence", bringing to the task required to be performed "the competence and skill that is usual among [practitioners] practising their profession": Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74 at 84 per Windeyer J; Hawkins v Clayton [1988] HCA 15; 164 CLR 539 at 580 per Deane J; Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 483 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ. The duty may be owed pursuant to an express or implied contractual retainer, or under the common law, or both."

When determining whether a legal practitioner has breached his or her duty to a client, consideration must be given to the way in which the advice is given. That may be affected by the type and experience of the client for whom the practitioner is acting (see Capebay Holdings Pty Ltd v Sands [2002] WASC 287; [2003] ANZ ConvR 170 at [94]).

In Donnellan v Woodland it was also observed that at [94] - [96]:

"94 The central allegation of negligence in the present case was the quality of the advice given, both as to liability and costs, and the failure to give specific advice in relation to settlement offers made by the Council. It has been said that although a solicitor does not warrant the correctness of the advice given, and that the question for determination in a negligence claim against a legal practitioner is whether the practitioner exercised reasonable skill and care in giving the advice: see Heydon v NRMA [2000] NSWCA 374; 51 NSWLR 1 at [147] per Malcolm AJA; it would be difficult to avoid liability for advice that was clearly wrong: see Tonitto v Bassal (1992) 28 NSWLR 564 at 576 per Sheller JA; Walmsley, Abadee, Zipser, Professional Liability in Australia, 2nd ed (2007), 3.805. However, if the law is unclear or difficult, the question for the court is whether the practitioner exercised reasonable care in the giving of the advice.

95 In Trust Co Australia v Perpetual Trustees WA (1997) 42 NSWLR 237 at 247 McClelland CJ in Eq summarised the position in the following terms:

"· 'A solicitor who brings a reasonable degree of skill and knowledge to a task and exercises reasonable care in carrying it ... out will not be liable for an error of judgment.": Ormindale Holdings Ltd v Ray (1982) 36 BCLR 378 at 387, per Taylor J.

· 'A lawyer ... is not ... normally required to warn experienced business clients of the possibility that [his] opinion, although firmly held, may not, in fact, prevail': Ormindale Holdings (at 389); affirmed on appeal (at 392).

· 'A solicitor is not liable for mistake in a nice and difficult point of law': Bannerman & Co v Murray [1972] NZLR 411 at 422, per North P and at 429, per Woodhouse J, quoting from Stevenson v Rowand (1830) 2 Dow & Clark 104; 6 ER 668."

96 The authorities are also clear that the decision whether or not to settle a claim is the decision of the client. The duty of the solicitor where questions of settlement arise was discussed in Studer v Boettcher [2000] NSWCA 263. The allegation in that case was that the solicitor had pressured the client into a settlement. Handley JA was of the opinion that the solicitor had given the client correct advice. In dealing with the question of settlement, Fitzgerald JA observed, at [75], that the practitioner:

"... should assist a client to make an informed and free choice between compromise and litigation, and, for that purpose, to assess what is in [the client's] best interests."

Given what is here in issue, the plaintiffs alleging that Mr Ford should have advised them from the outset that their case was hopeless, it is pertinent to note that the position at common law is that a lawyer may act for a client even where the proceedings are apparently hopeless, provided that the lawyer is not aware that the proceeding might amount to an abuse of process. This position was altered to some extent by the enactment of the Legal Profession Act 1987 which provided in s 198L(2):

"(2) A solicitor or barrister cannot file court documentation on a claim or defence of a claim for damages unless the solicitor or barrister certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success."

Section 198M permitted the Court to make a costs order against a solicitor or barrister who provided such legal services to a party without reasonable prospects of success. The current provisions are now contained in ss 345, 346 and 347 of the Legal Profession Act 2004. They apply only to cases in which damages are pursued.

It is generally not negligent for a solicitor to act for a client who seeks to pursue even a hopeless case. If the solicitor exercises reasonable care and skill in the provision of legal advice as to the prospects which the case has, it is open to the solicitor to act for the client, even one who wishes to press a case advised to be hopeless, unless it is a case to which the current provisions of the Legal Profession Act 2004 apply.

In Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 it was observed as to this statutory scheme that:

"Legal representation

139 One of the reasons the Division 5C jurisdiction should be exercised with caution is to ensure that the preparedness of the legal profession to represent litigants "should not be undermined either by creating conflicts of interest or by exposing the [legal profession] to pressures which will tend to deter them from representing certain clients or from doing so effectively": cf Medcalf (at [52]).

140 Some cases which have considered the question whether a legal practitioner acts improperly in representing a client with a hopeless case have expressed the view that "a party is entitled to have a practitioner act for him or her even in an unmeritorious case": see White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (at 236).

141 An allied view is that the administration of justice may be better served by a party being legally represented notwithstanding that the party has a hopeless case. In Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 18; (2004) 133 FCR 582 at [15] Mansfield J referred to "the public interest for the client to be represented" even when a legal practitioner had advised that proceedings had no reasonable prospects of success on the basis that [p]roceedings, even hopeless proceedings, are likely to be conducted more efficiently by a solicitor for a party than by a litigant in person."

142 Properly administered the Division 5C jurisdiction should not trespass upon the preparedness of legal practitioners to provide legal services in claims for damages as long as they have reasonable prospects of success. However, the purpose of Division 5C is plainly to deter the legal practitioner at the peril of a personal costs order, and possibly disciplinary proceedings, from representing a client whose prospects in pursuing or resisting a claim for damages he or she has formed the view have no reasonable prospects of success. There is no entitlement to legal representation in such cases. It is a matter for the client to determine whether to pursue the claim or defence without such services."

Pursuit of a hopeless case may also not involve any abuse on the part of the client, whose position might be of the kind discussed by Deane J in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 543, (albeit in dissent on the point there in issue), when considering the distinction between abuse in criminal and civil proceedings:

"Most civil proceedings are instituted in the hope that the defendant will settle before the action ever comes to trial or formal orders are made. Frequently, they are instituted for the predominant subjective purpose of obtaining an object which it would be beyond the power of the particular court to award in the particular proceedings. For example, the predominant subjective purpose of a plaintiff in a common law action for damages for wrongful dismissal may well be to obtain a settlement involving reinstatement in his or her former position under a contract for personal services of a type which a court would not enforce by specific performance or injunction. A plaintiff's predominant subjective purpose in suing at common law for damages for trespass to land may be to obtain a settlement in the form of undertakings about future conduct. A plaintiff's predominant subjective purpose in bringing proceedings for an injunction restraining infringement of copyright or breach of patent may be to obtain a settlement incorporating a licence agreement providing for the payment of future royalties. In all those cases, the institution and maintenance of proceedings and the use of them to pursue a form of redress which the particular court could not have granted if the proceedings had run their course are legitimate unless the proceedings themselves are not founded on a genuine grievance but are used as a "stalking-horse" for extortion [240] or merely as an instrument for vexation and oppression."

It should also be noted that in Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254; (2012) 293 ALR 764 a case where a solicitor retained counsel to advise, it was observed at [135] that:

"135 Thus, even without having regard to the solicitor's particular obligations under s 345 [of the Legal Profession Act 2004], the responsibility of a solicitor to apply his or her independent professional mind both to the claim and to the advice given by counsel was never abrogated under the general law. That independent obligation is now placed upon a legal practitioner, in this case a solicitor, by the express terms of s 345. Whilst it can be accepted that in a difficult case a solicitor may be entitled to rely upon the advice of counsel as to whether there is an arguable view of the law, or whether the facts support the claim made or proposed to be made, the solicitor is still required to give those matters independent consideration."

In this case the evidence was that neither Mr Ford nor senior counsel thought that Mrs Bird's pursuit of a reversal of the school's expulsion decision was hopeless. They both considered however, for a number of reasons, that while arguable, an application brought to this Court was likely to fail and that the matter should be settled. Mrs Bird did not accept their advice and still they both represented her in the proceedings. It is in that context that the claimed negligence arises for consideration.

In determining whether the claimed negligence has been established, it is also necessary to bear in mind is what was discussed in Capital Brake Service Pty Limited v Meagher [2003] NSWCA 225 at [30]:

"30 All these matters are matters of hindsight. There is a great danger, particularly in professional negligence matters, of applying an unrealistic hindsight judgment. Any fool can be wise after the event. That is not the test. The Court must be careful to judge the conduct of a defendant, where negligent failure to warn is asserted, by reference to what the defendant reasonably knew at the relevant time. Not after the loss has been suffered."

Einstein J's decision

In order to determine whether the plaintiffs have established their case in negligence and whether the immunity applied to particular work, it is necessary to consider what was pursued and how it came to fail.

Einstein J heard and refused the pseudonym order sought at the commencement of the hearing. In his decision, his Honour later concluded that the school had no obligation to afford the child natural justice in making disciplinary decisions and that the expulsion decision was not amenable to relief under s 69 of the Supreme Court Act, the school's decision being a contractual one, not amenable to judicial review.

His Honour said that s 47(h) of the Education Act did not impose an obligation on the school to afford a student natural justice. Its position was found to be different to that of government schools, which are subject to detailed regulation as to disciplinary procedures under s 35 of that Act. Rules established by the Board of Studies were also found to be guidelines, which did not bind the school. Public funds provided to the school were found not to be a sufficient reason for the Court to impose a public law obligation on the school to comply with the requirements of natural justice.

The school's contractual conditions of enrolment, properly construed, were found not to contain an implied obligation to afford a student natural justice and they did not operate as a matter of public policy. Nor did his Honour consider that the public law doctrine of legitimate expectation gives rise to an expectation that a student would be given procedural fairness.

His Honour observed that:

"49 A domestic decision-maker acting under consensual rules with no requirement to apply rules of evidence can inform itself how it chooses, may act on hearsay or its own knowledge if it is satisfied as to the facts and has afforded the person affected an opportunity of answering the charge and putting his version of events: Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 628 per Dixon J."

His Honour took a different view of the evidence, than the new Principal had earlier taken. He concluded that the school had complied with its obligations, accepting the former Principal's evidence, which he found to be reliable, as to the procedures pursued; the information he received during the course of his investigations; and the matters which he took into account, in reaching his decisions. In the result, his Honour also concluded that the school had adhered to its contractual procedures. This led his Honour to conclude at [68] - [70]:

"68 For this reason it seems strictly unnecessary to treat with the authorities concerning the limited circumstances in which a domestic tribunal, having been given the task of applying a particular criterion to the facts that it found, a court of law remains entitled to substitute its own opinion for that of the tribunals. Suffice it to note that in Australian Football League v Carlton Football Club supra, Tadgell JA examined the issue holding (at 557 et seq) that in such circumstances it was only if the tribunal's decision was aberrant that it could not be classed as rational that the Court was entitled to substitute its opinion for that of the tribunal. As his Honour observed, the distinction was between on the one hand a recognition that there was no information available to the tribunal on which reasonable and honest minds could possibly reach the conclusion reached and, on the other, reviewing the material in order to decide whether the tribunals properly appreciated or treated it - that is to say whether the tribunals reached the right result.

69 In relation to the present set of proceedings, this principle furnishes a further reason why the approach taken by the plaintiffs to the question of law is misconceived. It could not be said that Mr Webb's decision was so aberrant that it could not be classed as rational.

70 Finally even had the terms of the contract been breached, the remedy would in the present case, sound only in damages as opposed to relief setting aside the decision to expel."

Was the advice which Mr Ford gave under the first retainer negligent or clearly wrong?

The first retainer was entered in June 2007. It was to:

"... review the material provided by you, to advise you of the potential for having the expulsion decision set aside and, if applicable, of the means for doing this, and, if you require, taking steps to have the decision set aside."

There was no suggestion that any immunity from suit applied to the work which Mr Ford performed under the first retainer.

The advice which Mr Ford gave Mrs Bird was that a settlement should be pursued with the school, there having been inadequacies in the procedures which had been followed before the decision to expel was made. That advice has not been shown to be either negligent or clearly wrong. To the contrary, not only were there apparent problems with those procedures, that there had in fact been real deficiencies was accepted by the school itself in August 2007, when the new Principal decided to review its procedures and offered to re-enrol the child in 2008.

Contrary to the plaintiffs' case, had Mr Ford advised them in early June 2007 that they had no case and that it would be misconceived to pursue the reversal of the school's decision, because the Court had no jurisdiction to entertain any application they could bring, he would have been in breach of his duty. Advice that there was nothing which could be done would have been clearly wrong, if then given. Likewise, if he had given that advice when the letter from the outgoing Principal was received in June, refusing to reconsider the expulsion, he would also have been wrong and in breach of his duty.

That it was a matter which Mr Ford advised could be pursued further with the school, given the instructions he received from Mrs Bird, is understandable. The expulsion occurred after the child was sent out of a class in which a song, which had highly inappropriate lyrics, was played to the class. The teacher believed that the child had misbehaved, making masturbatory-type gestures. He sent the child to the Deputy for discipline. It was the Deputy who considered that this misbehaviour warranted the child's expulsion. The child was sent home. He told Mrs Bird he had not made such gestures. When Mrs Bird returned to the school to speak to the Principal, she came to understand that the child had already been expelled. Even though the child denied the misbehaviour, the Principal declined to reconsider the expulsion. That this was the subject of Mrs Bird's concerns is understandable, as was a desire to have the decision revisited.

Her former solicitor had earlier written to the school on the basis that it had not pursued a procedurally fair process, before making the decision to expel. Mr Ford took a similar view on the instructions which he received. While it was not a view which the retiring Principal accepted, it was a view which the new Principal accepted in August, after his investigations. Mr Ford's advice to pursue a settlement was plainly sound.

When Mrs Bird first approached Mr Ford, she had already threatened the school with legal proceedings. Mr Ford's advice was entirely consistent with the obligations nowadays imposed upon potential litigants by the Civil Procedure Act, which provides in s 56(3A):

"(3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose."

A 'civil dispute' is defined in s 18A to mean 'civil dispute means a dispute that may result in the commencement of civil proceeding'. Part 2A includes s 18E which provides:

"18E Pre-litigation requirements

(1) Each person involved in a civil dispute to which this Part applies is to take reasonable steps having regard to the person's situation, the nature of the dispute (including the value of any claim and complexity of the issues) and any applicable pre-litigation protocol:

(a) to resolve the dispute by agreement, or

(b) to clarify and narrow the issues in dispute in the event that civil proceedings are commenced.

(2) For the purposes of this section, reasonable steps include (but are not limited to) the following:

(a) notifying the other person of the issues that are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute,

(b) responding appropriately to any such notification by communicating about what issues are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute,

(c) exchanging appropriate pre-litigation correspondence, information and documents critical to the resolution of the dispute,

(d) considering, and where appropriate proposing, options for resolving the dispute without the need for civil proceedings in a court, including (but not limited to) resolution through genuine and reasonable negotiations and alternative dispute resolution processes,

(e) taking part in alternative dispute resolution processes.

(3) Each person involved in a civil dispute to which this Part applies is not to unreasonably refuse to participate in genuine and reasonable negotiations or alternative dispute resolution processes.

(4) Nothing in this section requires a person to provide any correspondence, information or document that might tend to incriminate the person."

Mr Ford's advice was not only sound, it was successful.

The plaintiffs complained, nevertheless, that he ought to have advised them from the outset that the litigation which Mrs Bird wished to pursue was hopeless and ought never to have been considered.

Mr Ford agreed in cross-examination that after he was first approached on 6 June 2008, he did not write to Mrs Bird advising her as to what claims could be agitated in any court proceedings which might be initiated. Nor could he remember then discussing with her the differences between a review of the merits of the school's decision, or a judicial review of the decision.

He agreed that by 15 June he had read the documents Mrs Bird had provided, by which he had been instructed that the child had been expelled after being disciplined by a teacher, having been taken out of class and referred to the Deputy, whose dealings with him resulted in his expulsion. Shortly after this discussion he was asked to leave the school. Later he returned with his mother and they both then met with the Principal and asked him to reconsider the decision. The Principal upheld the decision.

Mr Ford explained in cross-examination that at that stage, there was a doubt as to the extent to which the allegations had been put to the child or his parents, before the expulsion decision was made. He wanted to check that and other questions which he had about the process which had been pursued and what had happened. He also wanted to enquire whether Mrs Bird wished to pursue a Christian approach to dispute resolution. She did.

Mr Ford denied in cross-examination that the continued pursuit of a settlement and later, mediation, was because he had no faith whatsoever in the case being pursued and was desperate for a settlement. The evidence must be accepted.

Expedition was sought and Christian mediation pursued. Discussions ensued with the school's solicitors, who raised questions as to the Court's power to grant the relief sought, the school being a private body. Other avenues of achieving a settlement were then also pursued. The school advised it would oppose the expedition application and would not engage in the Christian mediation proposed.

On 9 November, Mr Davidson appeared before Brereton J, who granted expedition. On 14 November, Mr Ford considered whether an argument could be advanced that s 47(h) of the Education Act required a school not only to have a policy, but also to act upon it. He also pursued further enquiries, including with others in the field, as to other arguments which might permit the section to be relied on, explaining in one email in which he sought advice that he approached the case sought to break new ground.

A further attempt at settlement was pursued and, with Mr Ford's encouragement, Mrs Bird then sought to take up the school's offer to enrol her son for 2008. The school declined to consider that application until the proceedings were resolved, given that Mrs Bird had made public her allegations against the school and its teachers and had commenced legal proceedings.

On 4 December, the night before the hearing, another offer to settle the proceedings was, however, received from the school. It was also refused, even though Mr Ford advised Mrs Bird that there was no guarantee that she would win and that the matter was then fairly evenly poised. This was submitted for the plaintiffs to have been the most telling evidence of Mr Ford's ignorance of the law, reflective of a lack of understanding on his part, that the case was hopeless or extremely hard to win. That can simply not be accepted.

Mr Ford had repeatedly advised Mrs Bird prior to this point about the difficulty of the case being pursued. In this conversation Mr Ford advised of the offer and its advantages and again explained the potential costs consequences of refusing the offer. His reference to the matter then being 'fairly evenly poised,' appears to have reflected that in the affidavits filed by the two teachers involved, certain evidence had emerged which was favourable to the case which the plaintiffs were advancing, about the procedurally unfair process which had been pursued prior to the expulsion decision.

That explains Mrs Bird's then instruction that she had thought long and hard about this matter before she started and certainly wasn't going to pull out at this point; she believed that she had already had had a victory, in that now she knew that the teacher did not see her son 'do it'; that she felt confident that he had not done what had been alleged; and that she was therefore feeling much more relaxed than before the expedition hearing.

Mrs Bird said in her evidence that what had occurred was that the teachers had made admissions to having lied in their affidavits. Mr Ford explained that he then considered that there had been alterations in the accounts given in the two teachers' affidavits as to what they had seen, from accounts they had previously given. That this amounted to admissions of lying is not apparent. That was certainly not the view which Einstein J later took.

In cross-examination, Mr Ford accepted that he did not ask Mr Davidson to confirm the advice given at the September conference in writing. It is difficult to see that this would have made any difference to Mrs Bird. Mr Ford had earlier advised, both orally and in writing, of the many reasons for not proceeding. More were given at this conference. There is no reason for thinking that she would have considered Mr Davidson's advice any differently, had Mr Ford written to her again.

In my assessment, Mrs Bird's approach did not reflect any lack of understanding of the advice she was being given, but rather a refusal to accept it, for reasons of her own.

The advice she had been given as to the risks of the litigation proposed, including the risk that the Court would consider that it did not have the power to grant the relief sought; that the school did not have an obligation to give a student procedural fairness before expelling him; that the evidence of Mrs Bird and her son on relevant matters would not be accepted; and that it would be concluded that even if procedural fairness had not been afforded the child, no relief would be granted as a matter of discretion, because if a procedurally unfair process had been followed, the same decision would have been made.

In cross-examination, Mr Ford and Mr Davidson both explained how they considered arguments could be advanced by the plaintiffs, by reference to various authorities and analogies available to be drawn with them. There was then no Australian authority which had decided that a child enrolled at a private school was entitled to receive procedural fairness, before a decision to expel the child for misconduct was made by a principal. Interlocutory decisions had been given in favour of applicants in proceedings where the existence of such a right had been claimed. There were also British and New Zealand authorities supportive of the existence of such a right, although they had been decided in different regulatory environments. Mrs Bird was most unhappy with Mr Davidson's advice. She made it clear at the conference that she was proceeding and then the discussion turned to the case which could be advanced, given the difficulties confronting the plaintiffs.

This was clearly not a case where it can confidently be concluded that the only advice then, or earlier open to be given in the discharge of Mr Ford's obligations was that even if their version of the events which had occurred were accepted, the Court did not have any power to grant the plaintiffs or their son any relief in relation to the expulsion decision.

The plaintiffs relied on Kolavo v Pitsikas [2003] NSWCA 59, which concerned a claim which rested on a claimed implied term in a contract for the provision of a package tour holiday. It was there common ground that in order to succeed the appellant had to discharge the onus of establishing that on the material before the respondents, at all relevant times, from the giving of the initial advice and until the hearing, the only advice open to be given in the discharge of their obligation was that, even if her version of the events were accepted, neither of the defendants against whom she had proceeded was liable to her in law. It was concluded that the contract contained no such implied term; the claim that it did was not arguable in the relevant sense; and that by failing to advise the appellant that her case was hopeless, the respondents were derelict in their duty.

This, it seems to me, is quite a different case. Here the proceedings were commenced despite the advice as to the risks of the litigation Mrs Bird was so intent on pursuing, plainly because Mrs Bird thereby intended to force the school to a settlement.

In the result it cannot be accepted that the negligence claimed has been established.

Causation

On the plaintiffs' case it was Mr Ford who gave Mrs Bird the advice and encouragement to go forward; it was he who failed to disclose the truth, that he had never engaged in this type of litigation before; and that Mr Davidson was entirely exonerated by the express advice he gave before the September conference, that the case would be lost, advice which Mr Ford did not disclose. If Mr Ford had disclosed that advice, that 'would have been the end of the matter'.

It was also submitted to be relevant that Mrs Bird was not challenged on the critical question of causation. It was never suggested to her in cross-examination, that even if she had been told that the proceedings had no prospect of success whatsoever, she would have proceeded. Nor was it put to her that if told of Mr Davidson's original advice that there was an arguable case, which would nevertheless be lost, she would still have proceeded. In the result it was submitted that there was a Browne v Dunn point which had to be resolved in her favour.

Accordingly, it was submitted that any issue as to causation had to be accepted in the plaintiffs' favour, subject to the Civil Liability Act.

This was a reference to the requirements of Division 3 causation, which places the onus of proof on the plaintiffs and provides in s 5D that:

"5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

In the face of the provision made in s 5D(3)(b), the submissions advanced for the plaintiffs cannot be accepted. Nor do they reflect the evidence.

Understandably, given the provisions of s 5D(3), Mrs Bird was not cross-examined as to what she would have done, had she received the advice the plaintiffs' claim that they should have been given. Not only was Mr Ford's case that such advice would have been wrong, such evidence would have been inadmissible.

What the evidence does establish is that before Mrs Bird approached Mr Ford, she had already advised the school and others she had spoken to, that she would be pursuing litigation. Before the proceedings were brought Mr Ford repeatedly advised Mrs Bird against proceeding, given the risks of such litigation. Upon Mr Ford's recommendation, Mrs Bird instructed that she wanted to seek counsel's advice before pursuing proceedings. It was sought and given in conference.

While Mr Ford may not have conveyed to Mrs Bird Mr Davidson's first impressions, after he was briefed Mr Davidson's advice given in conference was to the same effect. It was advice with which Mr Ford agreed, namely, that there were arguable claims to advance, but the case was likely to fail and should not be pursued, including because of questions as to the court's jurisdiction to grant relief. Contrary to the case which the plaintiffs now pursue, at the time this was not only advice which Mrs Bird rejected, she was angered to receive it.

Mr Ford had plainly given the matters about which advice was sought his independent consideration. As he later described it, it was a novel and difficult case. He agreed with Mr Davidson that there was an arguable view of the law to advise, but that the case could be lost because of jurisdictional questions, or on the facts, or on discretionary factors. It could also prove to be a pyrrhic victory, if the decision were revisited by the school.

The plaintiffs pursued the proceedings, nevertheless, at a time Mrs Bird was herself still actively pursuing her own efforts to obtain a settlement. She told Mr Ford that given other advice she had received, she considered obtaining a hearing date was what would bring the school to the settlement she required.

The pursuit of a settlement even after the proceedings were commenced was not only consistent with Mr Ford's advice about the risks of litigation, but also with Mrs Bird's belief that commencing the litigation would be what would bring the school to the settlement she required. That perhaps explains why she refused all the advice she had received not to proceed.

There was a further offer of settlement received before the hearing, but it was also not accepted, in circumstances where the school refused to revisit the question of the child's re-enrolment until after the proceedings had been resolved, given Mrs Bird's publication of her dispute with the school. The final offer received on the eve of the hearing was also rejected, the school never having made the offer which Mrs Bird expected and required.

Mrs Bird was plainly aware of the risks of the course she was intent on pursuing, namely, that there would be no settlement and the proceedings would fail. They were risks which came home. While the school did make other settlement offers, it would not agree to consider having the child return, before the proceedings were resolved, given Mrs Bird's actions.

In the result, it must be concluded that the plaintiffs have not established causation. The evidence does not establish that but for the advice which Mr Ford gave, they would not have pursued the school, or embarked on the litigation which they brought.

Nor does the evidence establish that but for Mr Ford's negligence, Mrs Bird would not have suffered any injury.

The plaintiffs' case was that the evidence showed that Mrs Bird had been a hard-working professional up until the two and a half months following her child's expulsion from school. The suggestion of any pre-existing psychiatric injury breaking the chain of causation should be rejected. The but for test had been satisfied.

Also to be considered, however, is the stressors identified in the joint experts' report, as having caused the major depressive disorder which Mrs Bird came to suffer. They were the expulsion of her child, the outcome of the litigation, details of the case becoming available on the internet and financial problems associated with the litigation.

Mr Ford did not cause the expulsion, nor the publicity which resulted when the pseudonym order was refused. Mrs Bird had been so disturbed by the expulsion that she had been unable to work for months before she instructed Mr Ford. She was warned repeatedly against the pursuit of litigation which could not achieve all that she wanted and which was likely to fail, with the costs consequences to follow. That but for Mr Ford's alleged negligence, Mrs Bird would not have suffered this illness, has not been established.

Damages

It is necessary to deal with damages, even though judgment must be given for Mr Ford (see Wolfenden v International Theme Park Pty Ltd t/as Wonderland) [2008] NSWCA 78 at [6]). The parties produced a schedule of damages identifying figures which had been agreed and what was disagreed. The plaintiffs claimed in total a sum of some $489,055.

Non-economic loss

It was common ground that Mrs Bird had suffered a psychiatric injury, a serious depression. If liability were established, this injury would have to be assessed in accordance with s 16 of the Civil Liability Act. At issue was whether it should be assessed at 32% of a worst case , as the plaintiffs contended or at some lesser figure. For Mr Ford, figure of something more than 15%, but much less than 32%, was contended.

My assessment has been influenced by the impressions which I have formed of Mrs Bird and the evidence about when she came to suffer her illness and what impact it has had upon her.

She is, as I observed, a businesswoman who had some two months off work when her son was first expelled, but resumed work when she instructed Mr Ford. She came to suffer from depression at the time described in the joint report, after the proceedings were lost. She responded to treatment and makes no claim of any consequential economic loss, flowing from the effects of her illness. This evidence cannot be considered simply on the basis that it shows that Mrs Bird satisfied her obligation to mitigate her damages, as was submitted for the plaintiffs. It sheds real light on the nature of her injury, which on the evidence was not of the severity which was submitted.

In the result, I have assessed non-economic loss at 19% of a most extreme case.

Economic loss

Both legal and medical expenses were pursued.

Legal expenses

Legal expenses included what the plaintiffs had paid Mr Ford and Mr Davidson, some $38,257; further costs assessed in Mr Ford's favour of some $58,940; the school's costs of some $90,000 and $3,451.80 paid to the solicitors who acted for the plaintiffs in the negotiation of those costs.

There were also disbursements incurred in the proceedings before Einstein J, where his Honour required the parties to engage a professional transcription service. Mr Ford pursued his costs in the District Court, where the plaintiffs succeeded in having the statement of claim dismissed. They also seek their solicitors' costs for the District Court proceedings, of some $21,600; assessment fees; as well as costs owed to their solicitors for acting on the subsequent assessment of Mr Ford's costs of some $9,252. The assessed costs became a judgment of the Local Court. Mr Ford later took bankruptcy proceedings. The plaintiffs thus seek the costs owed to their solicitors for acting in the Federal Magistrates Court of some $15,866 in these proceedings; as well as various costs incurred when they borrowed to meet these costs.

Costs of the solicitors who acted for the plaintiffs in proceedings they brought against the solicitors who appeared for them in the District Court proceedings, of some $6,710 were also sought.

It is apparent that the latter order cannot be made. On any view a disagreement between the plaintiffs and the solicitors who acted for them in the proceedings brought by Mr Ford in the District Court, does not have the necessary causal connection with any negligence on his part. As was submitted for Mr Ford, those costs are remote and not foreseeable. The costs incurred in the provision of providing transcription service, also does not appear to me to be foreseeable.

As to Mr Ford's fees, they are the subject of an order of the Local Court which cannot be disturbed in these proceedings. The parties agreed that if an order was made in favour of the plaintiffs the amount in question would have to be dealt with by way of an indemnity, a matter about which they could agree. The position was the same in relation to the costs of the District Court proceedings, which were already the subject of an order of that Court.

Given the conclusions which I have reached about the work performed under both the first and second retainer, if any different conclusion were reached in relation to Mr Ford's alleged negligence in relation to any part of the work performed under either retainer, or his immunity, then that would also have to be reflected in the resulting damages ordered.

Medical treatment expenses

Past medical treatment expenses of some $6,449 were claimed, as well as future treatment expenses of some $25,000, on the basis of a buffer. The claimed buffer seems to me somewhat high on the evidence. I would assess this at $20,000.

The controversy in relation to the claimed past medical expenses related to pharmaceutical expenses relating to a claim for a blood pressure problem and medical treatment for that problem. I am satisfied those sums could not be awarded, the evidence not having established that they were causally connected with the alleged negligence.

Otherwise the parties were agreed that they could bring in short minutes of the relevant calculations.

Proportionate Liability

It was agreed by the parties that Part 4 of the Civil Liability Act did not apply in this case, to the extent that there is personal injury, but that the apportionment provisions apply to the other heads of damage (see s34).

Also to be considered is that s 34 provides:

"(1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).

(2) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim."

Section 35 provides:

"35 Proportionate liability for apportionable claims

(1) In any proceedings involving an apportionable claim:

(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and

(b) the court may give judgment against the defendant for not more than that amount.

(2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:

(a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and

(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.

(3) In apportioning responsibility between defendants in the proceedings:

(a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and

(b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.

(4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.

(5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise."

It follows, as was submitted for Mr Ford, that the question of any immunity which applies to Mr Davidson's work is not relevant to this apportionment claim. It is the extent of a defendant's responsibility for the damage or loss in question, which dictates the judgment which may be given against that defendant. Under s 35(1)(b), judgment may not be given against a defendant for more than that amount, irrespective of whether or not the plaintiffs could recover the balance from a concurrent wrongdoer.

That the plaintiffs accept that they could not recover anything from Mr Davidson, given the immunity which applies to his work, cannot preclude s 35 being given effect.

I do not consider that any negligence has been established on Mr Ford's part and that the immunity which the plaintiffs concede applied to Mr Davidson's work, also applied to that performed under the second retainer by Mr Ford. If those conclusions be wrong, then in respect of the work performed under the second retainer, the question of Mr Davidson's proportionate liability would arise.

The plaintiffs' case was that Mr Davidson was not a concurrent wrongdoer. I agree, because I consider that neither Mr Ford nor Mr Davidson were negligent. On the evidence, if that view be wrong, it would follow that Mr Davidson, who held similar views to those of Mr Ford and gave the plaintiffs' similar advice, namely, that while the litigation proposed was arguable, counselling against its pursuit and urging settlement, must have also been negligent in giving that advice.

In that event, I would assess the just proportion of the damage or loss suffered by the plaintiffs under the second retainer which reflected the extent of Mr Ford's responsibility at 50%. That conclusion would then have to be reflected in the calculation of any award of damages made in favour of the plaintiffs.

Orders

For the reasons given unless the parties approach within 14 days to be heard on the question of costs, I make the following orders:

1. Judgment for the defendants.

2. The plaintiffs to pay the defendants' costs of the proceedings, as agreed or assessed.

3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

**********

Amendments

03 April 2013 - removed comment

Amended paragraphs: 1

Decision last updated: 03 April 2013

Medium Neutral Citation:	Bird v Ford [2013] NSWSC 264
Hearing dates:	26 November 2012, 27 November 2012, 28 November 2012, 29 November 2012, 30 November 2012, 5 December 2012
Decision date:	28 March 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	1. Judgment for the defendants. 2. The plaintiffs to pay the defendants' costs of the proceedings, as agreed or assessed. 3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
Catchwords:	TORTS - negligence - professional negligence - legal - what advice was given about the Education Act 1990 - whether the advice given was not to pursue proceedings in Court - were the plaintiff's misled as to the defendants' expertise - two retainers - defendants' duty to the plaintiffs - was the advice given under the first retainer negligent or clearly wrong - the second retainer - immunity from suit - were the proceedings brought entirely misconceived, having no prospects of success - causation - damages - non-economic loss - economic loss - legal expenses - medical treatment expenses - proportionate liability - orders EVIDENCE - witnesses - reliability of evidence - first defendant's evidence preferred over first plaintiff's evidence PROCEDURE - evidence - application for leave to rely upon late served affidavit - application granted
Legislation Cited:	Civil Liability Act 2002 Commission for Children and Young People Act 1998 Education Act 1990 Fair Trading Act 1987 Legal Profession Act 1987 (repealed) Legal Profession Act 2004 Supreme Court Act 1970
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Workers' Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601 Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419 Capebay Holdings Pty Ltd v Sands [2002] WASC 287; [2003] ANZ ConvR 170 Capital Brake Service Pty Limited v Meagher [2003] NSWCA 225 Carter v NSW Netball Association [2004] NSWSC 737 CF v The State of New South Wales [2003] NSWSC 572; (2003) 58 NSWLR 135 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Donnellan v Woodland [2012] NSWCA 433 Hedges v Australasian Conference Association Limited [2003] NSWSC 1107 Heydon v NRMA Ltd; [2005] NSWCA 374; (2005) 51 NSWLR 1 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254; (2012) 293 ALR 764 Keefe v Marks (1989) 16 NSWLR 713 Kolavo v Pitsikas [2003] NSWCA 59 Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; (2008) 77 NSWLR 205 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 Seymour v Swift (1976) 10 ACTR 1 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Watson v Foxman (1995) 49 NSWLR 315 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Wolfenden v International Theme Park Pty Ltd t/as Wonderland) [2008] NSWCA 78
Category:	Principal judgment
Parties:	Vrede Jane Bird (First Plaintiff) Gordon Phillip Bird (Second Plaintiff) David Clifton Ford t/as Emil Ford & Co (First Defendant) Gary Cedric Pritchard t/as Emil Ford & Co (Second Defendant)
Representation:	Counsel: Mr DE Baran (Plaintiffs) Mr G Craddock SC (Defendants) Solicitors: John Stonham & Co (Plaintiffs) Mullane & Lindsay (Defendants)
File Number(s):	2010/232539
Publication restriction:	None