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King v Griffiths

King v Griffiths

Case [2013] NSWSC 808 4 June 2013

Limitation Periods

Separation of Issues

Alternative Dispute Resolution

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Brendan King v Stephen Noel Griffiths [2013] NSWSC 808
Hearing dates: 4 June 2013
Decision date: 04 June 2013
Jurisdiction: Common Law
Before: Slattery J
Decision:
Dismiss the plaintiffs' motion to separate trial of issues of liability from the assessment of damages.
Plaintiffs to pay the defendants' costs of this application.

Catchwords: PROCEDURE - application under UCPR r 28.2 to separate trial of issues of liability from the assessment of damages - alternative application to separate the question of advocate's defence of immunity from suit - defendants acted as plaintiffs' solicitors in proceedings with a neighbour in the Land and Environment Court - plaintiffs allege that the defendants negligently advised in relation to those proceedings - credit issues overlap between the proposed liability and damages hearings - facts on which the liability question to be determined not agreed - principles governing separate question application discussed - whether those principles changed after the introduction of the Civil Procedure Act 2005 - HELD: motion dismissed.
Legislation Cited: Civil Procedure Act 2005 s 56
Consumer Credit (NSW) Code s 80
Uniform Civil Procedure Rules 2005 r 28.2
Cases Cited: Bass v Permanent Trustee Co Limited (1999) 198 CLR 334
Commonwealth Bank of Australia v Clune & Anor [2008] NSWSC 1125
Donnellan v Woodland [2012] NSWCA 433
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [2005] HCA 12
Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114
Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464
O'Sullivan v Challenger Managed Investments Limited [2008] NSWSC 602
Tepko Pty Limited v The Water Board (2001) 206 CLR 1
The Owners of Corporation and Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd & Ors (No. 2) [2012] NSWSC 322
Thiering v Daly [2011] NSWSC 1345
Vero Insurance Ltd v Minh Ai Tran [2008] NSWSC 166
Young v King (No 3) [2012] NSWLEC 42
Young v King [2011] NSWSC 793
Category: Interlocutory applications
Parties: Brendan King (First Plaintiff)
Christina King (Second Plaintiff)
Stephen Noel Griffiths (Defendant)
David Patrick Baxter (Second Defendant)
Peter Millard Jackson (Fourth Defendant)
Colleen Anne Schofield (Fifth Defendant)
Gary Andrew Green (Third Defendant)
Michael James Hewitt (Sixth Defendant)
Julie Anne Walsh (Seventh Defendant)
Representation: Counsel:
J. Anderson (Plaintiffs)
G. Craddock (Defendants)
Solicitors:

File Number(s): 2010/38916

EX TEMPORE Judgment

The first and second plaintiffs in these proceedings, Brendan and Christina King, are neighbours with one Margot Young in the Sydney suburb of Forestville. The distressing underlying theme of the proceedings is an ongoing dispute between these two neighbours, which has resulted in litigation between them, and then litigation between the Kings and their former solicitors. This litigation has been active for 10 years.

By Notice of Motion today Mr and Mrs King seek the separate trial of issues of liability apart from the assessment of damages in the action they have brought against their former solicitors, the partners of the firm Pike Pike & Fenwick.…

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.

Continue reading King v Griffiths

Details

AGLC: King v Griffiths [2013] NSWSC 808
Case: [2013] NSWSC 808
Decision Date: 04 June 2013

CaseChat Overview and Summary

The proceedings in King v Griffiths were before the Supreme Court of New South Wales. The plaintiffs, King, sought damages from Griffiths, who acted as their solicitors in a prior proceeding with a neighbour in the Land and Environment Court. The plaintiffs alleged that Griffiths had negligently advised them in the earlier proceedings. The court was required to determine whether it should separate the trial of issues of liability from the assessment of damages, as well as whether to separate the question of the defendants' advocate's defence of immunity from suit.

The court considered the principles governing applications to separate questions of liability and damages. It noted that such applications are not to be made lightly and that there must be a compelling reason to justify separation. The court also examined whether the principles had changed after the introduction of the Civil Procedure Act 2005. Given that the credit issues overlapped between the proposed liability and damages hearings, and the facts on which the liability question was to be determined were not agreed, the court found that there was no compelling reason to separate the issues. Consequently, the motion was dismissed.

No final orders were made in this decision, as the motion to separate the trial of issues was dismissed. The case will proceed with the trial of both liability and damages together. The plaintiffs will need to present their case in full, including evidence of negligence and the resulting damages, in one proceeding.

Orders