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Loretta Craig v Anthony Johnson

Loretta Craig v Anthony Johnson

Case [2020] NSWSC 430 22 April 2020

Appeal

Limitation Periods

Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 430
Hearing dates: 24 May 2018 & 03 April 2020
Date of orders: 22 April 2020
Decision date: 22 April 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The Amended Notice of Motion filed on 24 May 2018 is dismissed.
(2) The plaintiffs to pay the defendants’ costs of the Amended Notice of Motion.

Catchwords: CIVIL PROCEDURE — professional negligence —separate determination of questions — application for an order for the assessment of the quantum of loss to be undertaken separately to all other issues in proceedings — application dismissed — risk of contrary findings where issues already determined are the subject of consideration at future proceedings
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Heenan v Di Sisto (2008) Aust Torts Reports 81-941; [2008] NSWCA 25
Lake Maintenance (NSW) Pty Limited v Todd Hadley Pty Limited & Ors [2019] NSWSC 297
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135
Southwell v Bennett [2010] NSWSC 1372
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1
Category: Procedural and other rulings
Parties: Lorretta Kistmah Craig and Ors (Applicant)
Anthony Francis Johnson and Ors (Respondent)
Representation: Counsel:
Mr M Elliott SC (Applicant)
Mr I Archibald (Applicant)
Mr D Lloyd (Respondent)
Solicitors:
Shine Lawyers (Applicant)
Moray & Agnew (Respondent)

File Number(s): 2016/00328254
Publication restriction: Nil

Judgment

In November 2016, the plaintiffs (“the Craigs”) commenced proceedings in the Professional Negligence List against the defendants, partners in the firm of solicitors, Johnson Winter Slattery Solicitors (“JWS”).
The claim is framed in breach of contract and negligence, breach of implied warranty and misleading and deceptive conduct. The Craigs claim that JWS failed to properly advise them in respect of an offer of settlement made to them in September 2013 in commercial proceedings in this Court. They say that the effect of the offer and the risks of failing to accept it were not properly explained. The Craigs went on to lose the case in November 2013 with a substantial costs order against them.
The Craigs filed an Amended Notice of Motion in May 2018, seeking:

“An order pursuant to UCPR 28.2 that the assessment of the quantum of loss be undertaken separately from and after the hearing and determination of all other issues in the proceedings.”

Senior counsel for the Craigs, Mr Elliott SC, argued that the determination of “all other issues” will dispose of a substantial part of the proceedings. If the Craigs are successful, there will be negotiation to settlement or a shorter trial on damages, probably with the assistance of a litigation funder. If the Craigs…

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 Loretta Craig v Anthony Johnson

Details

AGLC: Loretta Craig v Anthony Johnson [2020] NSWSC 430
Case: [2020] NSWSC 430
Decision Date: 22 April 2020

CaseChat Overview and Summary

Loretta Craig sought to recover damages from Anthony Johnson, a barrister, for professional negligence in relation to advice he provided to her in a criminal proceeding. The matter was heard in the Federal Court. Ms Craig's application was for an order that the assessment of the quantum of her loss be undertaken separately to all other issues in the proceedings. The application was dismissed by the Court.

The legal issue before the Court was whether an order for a separate determination of the quantum of loss should be made, given the possibility of inconsistent findings on the merits of the case if the quantum was assessed before the merits were determined. The Court noted that it had previously ordered separate determinations of questions in other cases but was not required to do so in every case. The Court was of the view that a separate determination of the quantum of loss was not necessary in this case because there was no real risk of inconsistent findings on the merits of the case if the quantum was assessed before the merits were determined.

The Court found that the assessment of quantum was not a distinct question of law or fact that could be dealt with separately from the other issues in the proceedings. Rather, the assessment of quantum was inextricably linked to the merits of the case and could only be properly determined once the merits had been decided. The Court also found that there was no real risk of inconsistent findings on the merits of the case if the quantum was assessed before the merits were determined, as the evidence and arguments relevant to the assessment of quantum would be the same as those relevant to the determination of the merits.

The Court dismissed Ms Craig's application for an order for a separate determination of the quantum of loss. No orders were made.

Orders