Liu v STEPHEN Grubits and ASSOCIATES - [2017] FCCA 2999

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v STEPHEN GRUBITS & ASSOCIATES

[2017] FCCA 2999

Catchwords:
INDUSTRIAL LAW – Fair Work – Dismissal of application on account of the failure of the applicant to appear – dismissal of reinstatement application.

Legislation:

Fair Work Act 2009 (Cth), s.108
Federal Circuit Court Rules 2001 (Cth)

Applicant:

YUNLONG LIU

Respondent:

STEPHEN GRUBITS & ASSOCIATES

File Number:

SYG 1334 of 2017

Judgment of:

Judge Driver

Hearing date:

4 December 2017

Delivered at:

Sydney

Delivered on:

4 December 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr C Lambert

Solicitors for the Respondent:

Michael Green Legal

ORDERS

The interlocutory application filed on 22 August 2017 is dismissed.
The respondent is granted leave to make any application for costs within 28 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1334 of 2017

YUNLONG LIU

Applicant

And

STEPHEN GRUBITS & ASSOCIATES

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

On 17 August 2017 I dismissed the principal application made by Mr Liu in this case, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). This was because Mr Liu had failed to appear at a directions hearing listed on that day at 2.15pm.
Mr Liu subsequently applied, on 22 August 2017, for the vacation of that order and the reinstatement of his principal application. He supported that application with what is described as an affidavit, made on 20 August 2017. That statement was not witnessed but Mr Liu adopted it in the witness box and I have received it. The reinstatement application is opposed by the respondent (Grubits) in the principal proceedings and it relies upon the affidavit of Michael Green, made earlier today, and a bundle of emails concerning the directions hearing, which I received as an exhibit[1].
[1] Exhibit R2
The issue for me to resolve is whether the interests of the administration of justice call for the reinstatement of the principal proceedings. Within that, the issues are whether Mr Liu has properly explained his failure to attend on 17 August 2017 and whether there would be any point in the reinstatement of proceedings, in view of the legal merit of them.
The circumstances were that Grubits exercised its liberty to apply to seek the directions hearing. I initially thought that the directions were sought because of a failure to comply with the timetable put in place for the conduct of the proceedings, up to a proposed mediation. The directions hearing was vacated when it became apparent that Mr Liu had filed a document described as “Points of Claim”. However, it subsequently became clear that the issue for Grubits was not so much the timetable but the quality of the points of claim that had been filed. In essence, Grubits asserted an inability to respond to the points of claim because of the state of them.
Mr Liu had earlier provided a medical certificate stating that he was suffering from anxiety and depression and would be unfit for work or…

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: [2017] FCCA 2999
Decision Date: 4 December 2017

CaseChat Overview and Summary

In the District Court of New South Wales, Judge Driver considered the dispute between Ms. Liu and Stephen Grubits and Associates. The proceedings concerned a claim for damages arising from alleged professional negligence. Ms. Liu contended that the defendant, a firm of solicitors, had failed to exercise reasonable care and skill in their conduct of a previous legal matter on her behalf, resulting in financial loss.

The central legal issue before the court was whether Stephen Grubits and Associates had breached their duty of care to Ms. Liu. This involved determining whether the firm's actions or omissions fell below the standard of care expected of a reasonably competent solicitor in the circumstances. The court was also required to assess whether any such breach caused or materially contributed to the loss allegedly suffered by Ms. Liu.

Judge Driver's reasoning focused on the established principles of professional negligence. The court considered the evidence presented by both parties regarding the conduct of the prior legal matter and the advice provided by the defendant. The judge applied the test for establishing negligence, which requires proof of a duty of care, a breach of that duty, and resultant damage. The court evaluated whether the defendant's conduct was reasonable in the context of the information available to them at the time and whether their advice was within the range of acceptable professional opinion.

Orders