Bird v Ford

In *Bird v Ford*, the parents of a pupil expelled from school brought proceedings against their former solicitor, alleging professional negligence. The parents had engaged the solicitor to act for themselves and their son in an action against the school, which alleged a denial of natural justice. Those original proceedings were unsuccessful, as the court found the school's decision was not amenable to judicial review and no contractual term requiring natural justice could be implied. The parents' subsequent negligence claim against the solicitor was dismissed at first instance, leading to this appeal.

The central legal issue on appeal was whether the solicitor had breached his duty of care by failing to advise the parents that their original proceedings against the school had no prospects of success. The parents contended that the solicitor should have informed them of the likely futility of their action.

The Court of Appeal acknowledged that the state of Australian law regarding the availability of judicial review and implied contractual terms in such circumstances was uncertain. However, the Court noted that approaches in other common law jurisdictions offered cogent arguments supporting the parents' original case, particularly concerning implied contractual terms and the potential for judicial review. Given this uncertainty and the existence of plausible arguments that could have been advanced, the Court found that the proposition central to the appeal – that the parents' original case was demonstrably without merit – was not made good.

The appeal was dismissed, and the parents were ordered to pay the solicitor's costs.