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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bird v Ford [2013] NSWSC 264
Case
[2013] NSWSC 264
Decision Date
CaseChat Overview and Summary
The case of Bird v Ford involved a dispute concerning professional negligence, specifically in relation to advice provided by the defendants, Ford and his firm, regarding the Education Act 1990. The plaintiffs, Bird and his wife, alleged that they were misled regarding Ford's expertise, that they were given negligent advice, and that the advice was clearly wrong. The case was heard by the court, which had to decide whether the advice provided was negligent and whether it led to the plaintiffs' economic and non-economic losses.
The court was required to determine whether Ford and his firm were negligent in providing advice about the Education Act 1990, and whether this advice misled the plaintiffs regarding the defendants' expertise. Another key issue was whether the advice given was negligent or clearly wrong, and whether the defendants were liable for the plaintiffs' economic and non-economic losses. The court also had to consider the issue of immunity from suit, whether the proceedings were entirely misconceived and without prospects of success, and the question of causation and damages.
The court found that the first defendant's evidence was more reliable than that of the first plaintiff. The court held that the advice given by Ford and his firm was negligent or clearly wrong, and that the defendants were liable for the plaintiffs' economic and non-economic losses. The court also found that the proceedings were not entirely misconceived and had prospects of success. The court ordered Ford and his firm to pay damages to the plaintiffs for their economic and non-economic losses, as well as legal expenses and medical treatment expenses. The court also found that the defendants were proportionately liable for the damages awarded.
The court granted the defendants leave to rely upon a late-served affidavit and made orders for the payment of damages, costs, and expenses.