Howard Mills v Peter Earle Bale - [2012] HCASL 20

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

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).
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.
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).
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.
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.
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.
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

Grounds of appeal

[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

Case: [2012] HCASL 20
Decision Date

CaseChat Overview and Summary

In the case of Howard Mills v Peter Earle Bale, the applicant sought special leave to appeal against the orders of the New South Wales Court of Appeal which had allowed an appeal against the orders of a judge of the District Court. The applicant alleged that the respondents, the principals of a firm of solicitors, had negligently made misrepresentations to him concerning the settlement of a legal matter. The case hinged on the credibility of the evidence of the employee of the respondents versus that of the applicant. The District Court found in favour of the applicant and awarded him damages, but the Court of Appeal held that the findings made by the District Court concerning the employee's credibility and probity were flawed and ordered a new trial. The applicant sought special leave to appeal to the High Court.

The legal issues in the case centred on the assessment of the credibility of witnesses and the findings made by the trial judge. The Court of Appeal held that the findings of the District Court were flawed and could not be sustained. The applicant argued that the Court of Appeal erred in setting aside the credibility findings made by the District Court judge. The applicant contended that the findings were open to the District Court and should have been upheld by the Court of Appeal.

The High Court found that the grounds of appeal advanced did not raise any question of law which would provide a basis for a grant of special leave to appeal. The Court held that an appeal would enjoy insufficient prospects of success. Further, the application did not engage the interests of the proper administration of justice. The Court noted that the findings of the District Court judge were open to the Court of Appeal to assess and that the Court of Appeal had exercised its discretion to order a new trial. The Court held that the findings of the Court of Appeal were not plainly wrong and should not be interfered with by the High Court. Pursuant to the relevant rule, the Court directed the Registrar to draw up, sign and seal an order dismissing the application with costs.

In conclusion, the High Court dismissed the applicant's application for special leave to appeal and ordered that the applicant pay the costs of the respondents. The Court held that the findings of the Court of Appeal were not plainly wrong and that the applicant's appeal would enjoy insufficient prospects of success. The Court found that the application did not engage the interests of the proper administration of justice.

Orders