Firth v Latham

Case [2007] NSWCA 40

New South Wales


Court of Appeal


CITATION: Firth v Latham & Ors [2007] NSWCA 40
HEARING DATE(S): 03/11/2006
 
JUDGMENT DATE: 
9 March 2007
JUDGMENT OF: Santow JA at 1; McClellan CJ at CL at 2; Hoeben J at 3
DECISION: See para [70]
CATCHWORDS: Legal Practitioners - s345 of Legal Profession Act - whether "reasonable prospects of success" when trial commenced - exercise of discretion by trial judge under s348(1)(a) of the Legal Profession Act - solicitor ordered to pay costs awarded against plaintiff - effect of s43A Civil Liability Act on plaintiff's claim.
LEGISLATION CITED: Civil Liability Act 2002
Legal Profession Act 2004
CASES CITED: Altamura v Victorian Railways Commissioners (1974) VR 33 at 35
Bullock v London General Omnibus Co (1907) 1 KB 264
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 7-8
Gould v Vaggelas (1984) 157 CLR 215 at 247
House v R (1936) 55 CLR 499 at 504
Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 556
Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449
Latham v Fergusson [2006] NSWCA 288
Lemoto v Able Technical Pty Limited & Ors (2005) 63 NSWLR 300
Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA Pty Ltd (1984) 157 CLR 149 at 163
Roads and Traffic Authority of New South Wales & Ors v Palmer (No 2) [2005] NSWCA 140 at [30]
Steppke v National Capital Development Commission (1978) ACTR 23 at 30-31
Sved v Council of the Municipality of Woollahra (1998) NSW Con R 55-852 at 55,605
PARTIES: Stephen Paul Firth - Claimant
Kim Latham - First Opponent
Pittwater Council - Second Opponent
Olivia Floyd-Fergusson by her next friend Lara Floyd - Third Opponent
FILE NUMBER(S): CA 40085/2006
COUNSEL: K Rewell SC - Claimant
R Letherbarrow SC/Ms C Allen - 1st Opponent
P Garling SC/J Sheller - 2nd Opponent
R Goodridge - 3rd Opponent
SOLICITORS: Firths - Claimant
Abbott Tout - First Opponent
Phillips Fox - Second Opponent
Employment Lawyers - Third Opponent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC4100/2004
LOWER COURT JUDICIAL OFFICER: McGuire DCJ
LOWER COURT DATE OF DECISION: 18/11/2005



                          CA 40085/2006
                          DC 4100/2004

                          SANTOW JA
                          McCLELLAN CJ at CL
                          HOEBEN J

                          Friday 9 March 2007
Stephen Paul FIRTH v Kim LATHAM & Ors
JUDGMENT

1 SANTOW J: I agree with Hoeben J.

2 McCLELLAN CJ at CL: I agree with Hoeben J.

3 HOEBEN J: The claimant seeks leave to appeal from a decision of McGuire DCJ in which his Honour made an order pursuant to s348(1)(a) of the Legal Profession Act 2004 that the claimant repay the third opponent certain costs which she had been ordered to pay to the second opponent. It was agreed that the application for leave to appeal and the appeal should be heard together.


      Factual background

4 On 9 April 2003 the third opponent (“the plaintiff”), then an infant aged 23 months,…

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AGLC
Firth v Latham [2007] NSWCA 40
Case
[2007] NSWCA 40
Decision Date

CaseChat Overview and Summary

The case of *Firth v Latham* concerned an appeal to the New South Wales Court of Appeal following a decision by a District Court judge. The primary dispute involved an application by a claimant (Firth) for leave to appeal against orders made in proceedings where a solicitor was ordered to pay costs awarded against the plaintiff. The appeal also touched upon the effect of s43A of the *Civil Liability Act* on the claimant's original claim.

The Court of Appeal was required to determine whether the trial judge had erred in exercising their discretion under s348(1)(a) of the *Legal Profession Act* regarding the prospects of success of the claimant's case at the commencement of the trial. A further issue was the application of s345 of the *Legal Profession Act* in assessing those prospects. The court also considered an application for leave to cross-appeal by the second opponent.

In dismissing the claimant's appeal, the Court of Appeal found no error in the trial judge's exercise of discretion. The court applied the principles governing the assessment of "reasonable prospects of success" under the *Legal Profession Act* and the discretionary powers of a judge in awarding costs against a legal practitioner. The court also refused leave to cross-appeal by the second opponent.

Consequently, the claimant was ordered to pay the costs of the application for leave to appeal and the appeal itself. In a related matter, *Latham v Fergusson*, the opponent was ordered to pay the claimant's costs of the application for leave to appeal and the appeal, as well as the claimant's costs of the proceedings before McGuire DCJ.

Orders

Orders of the court

The orders which I propose are as follows: (1) The time for the filing of the claimant's summons for leave to appeal is extended to 23 February 2006. (2) The claimant's application for leave to appeal is granted. (3) The claimant's appeal is dismissed. (4) Leave to cross appeal by the second opponent is refused. (5) The claimant is to pay the costs of the Application for Leave to Appeal and the appeal. (6) In the matter of Latham v Fergusson [2006] NSWCA 288: (i) the opponent is to pay the claimant's costs of the Application for Leave to Appeal and the appeal. (ii) the opponent is to pay the claimant's costs of the proceedings before McGuire DCJ from 31 October - 4 November 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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