McLean v Power - [2013] NSWSC 193

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: John Calderwood McLEAN v Andrew POWER & Anor [2013] NSWSC 193
Hearing dates: 21 June 2012
Decision date: 15 March 2013
Jurisdiction: Common Law
Before: Hidden J
Decision:
Proceedings dismissed

Catchwords: SUMMARY DISMISSAL - proceedings against solicitors arising from conduct of personal injury claim in the District Court - abuse of process - collateral attack on District Court judgment - claims against solicitors manifestly groundless
Cases Cited: - McLean v Star City Pty Ltd [2008] NSWDC 143
- McLean v Star City Pty Ltd [2011] HCASL 45
- Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
- Cleary v Jeans [2006] NSWCA 9, 65 NSWLR 355
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Cox v Journeaux [No. 2] (1935) 52 CLR 713
Category: Principal judgment
Parties: John Calderwood McLean (plaintiff)
Andrew Power (1st defendant)
The Partners of Wotton & Kearney (2nd defendant)
Representation: Counsel:
In person (plaintiff)
J McLeod (1st defendant)
RPV Carey (2nd defendant)
Solicitors:
Michael Harris, Harris & Harris Solicitors (1st defendant)
David Kearney, Wotton & Kearney (2nd defendant)

File Number(s): 2012/37957

Judgment

The plaintiff, John Calderwood McLean, has instituted proceedings in this court arising from an incident on 16 June 2003 when he fell on an escalator at the Star City Casino (as it was then known). He has done so without legal representation. The Casino is now known simply as "The Star" and is administered by The Star Pty Limited. The first defendant, Andrew Power, is employed by that company as its General Counsel. The second defendant is named as a firm of solicitors, Wotton & Kearney. Before me are motions by both defendants seeking the summary dismissal of the proceedings. To understand the proceedings it is necessary to sketch the background to them.

The District Court proceedings

Mr McLean brought proceedings in the District Court against Star City Pty Ltd, the predecessor of the present company, to which I shall refer as "Star City", seeking damages for personal injury said to have been suffered as a result of his fall. In those proceedings he was legally represented. The matter was heard by Sidis DCJ over a period in April and May 2008, and her Honour gave judgment on 13 August of that year. Mr Power had been engaged as an in-house solicitor by Star City in October 2007 but, as will be seen, he played no part in the conduct of the District Court proceedings. Star City was represented by Wotton & Kearney, engaged by Star City's insurers, the solicitor on the record being Mr David Kearney.

Judge Sidis rejected Mr McLean's claim and found a verdict for Star City: McLean v Star City Pty Ltd [2008] NSWDC 143. Put shortly, it was Mr McLean's case that he fell as a result of the escalator malfunctioning. His evidence was that as he was travelling…

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 McLean v Power

Details

AGLC: John Calderwood McLean v Andrew Power [2013] NSWSC 193
Case: [2013] NSWSC 193
Decision Date: 15 March 2013

CaseChat Overview and Summary

In the matter of McLean versus Power, the plaintiff, McLean, brought proceedings against the defendants, Power and his legal firm, in the Supreme Court of New South Wales. The dispute arose from the conduct of a personal injury claim in the District Court, which was ultimately dismissed. McLean sought damages for legal professional negligence and abuse of process, claiming that the defendants had collusively brought about the dismissal of his District Court claim, which had been awarded substantial damages, in order to avoid paying compensation. The defendants filed a motion to dismiss the claim, arguing that it was an abuse of process and a collateral attack on the District Court judgment. The court was required to decide whether the plaintiff's claims against the defendants were manifestly groundless and vexatious.

The court found that the plaintiff's claims against the defendants were indeed manifestly groundless. The court held that the plaintiff's allegations were not supported by any evidence and that the defendants had acted properly in pursuing the dismissal of the District Court claim. The court found that the plaintiff had no reasonable prospect of success in his claims against the defendants and that the proceedings were an abuse of process. The court further held that the plaintiff's claims amounted to a collateral attack on the District Court judgment, which was not permissible. The court found that the defendants had acted reasonably and in accordance with the law in pursuing the dismissal of the District Court claim.

In light of the above, the court dismissed the plaintiff's claims with costs. The court found that the plaintiff's claims were frivolous and vexatious and that the defendants were entitled to be protected from such proceedings. The court held that the plaintiff's claims were an abuse of the legal process and that the defendants were not liable for any damages or costs incurred by the plaintiff. The court further held that the plaintiff's claims amounted to a collateral attack on the District Court judgment, which was not permissible. The court found that the defendants had acted reasonably and in accordance with the law in pursuing the dismissal of the District Court claim.

Orders