Howard Mills v Peter Earle Bale

[2012] HCASL 20

HOWARD MILLS
v
PETER EARLE BALE & ANOR
[2012] HCASL 20
S303/2011

1. The applicant seeks special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales (Allsop P, Giles JA and Tobias AJA) allowing an appeal against orders of a judge of the District Court of New South Wales (Levy DCJ).  

2. The application to this Court is brought out of time; in the circumstances, the dispensation sought under r 41.02.2 of the High Court Rules 2004 is granted.

3. The applicant initiated proceedings against the respondents, the principals of a firm of solicitors he had previously retained, in the District Court of New South Wales. He alleged that an employee of the respondents had made misrepresentations to him concerning the settlement of a legal matter. Each of the misrepresentations was said to have been made negligently and in breach of contract, and one of the misrepresentations was alleged to have been made in contravention of s 42 of the Fair Trading Act 1987 (NSW).

4. The nature of the allegations and the surrounding circumstances meant that the case turned on whether the evidence of the employee or the applicant was to be preferred.  Levy DCJ found that two matters – correspondence between the employee and the applicant concerning Centrelink entitlements, and certain evidence given by the employee before the District Court – showed the employee to be lacking in credibility and probity.  In turn, his Honour relied upon these findings to support a finding that the evidence of the applicant was to be preferred.  The applicant's claim was therefore made out, and he was awarded damages in the sum of $666,128.93.

5. The Court of Appeal held that the findings made by the District Court concerning the employee's credibility and probity were flawed and could not be sustained.  Given the significance of these findings in the context of the proceedings, the Court of Appeal found that the respondents' appeal should be allowed and ordered a new trial.

6. The applicant's written submissions in support of the special leave application contend that the Court of Appeal erred in setting aside the credibility findings made by Levy DCJ.  The grounds of appeal advanced do not raise any question of law which would provide a basis for a grant of special leave to appeal.  An appeal to this Court would enjoy insufficient prospects of success.  Further, the application does not engage the interests of the proper administration of justice.  

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 February 2012 S.M. Crennan