Messmer and Cable and Anor - [2011] FMCAfam 167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MESSMER & CABLE & ANOR

[2011] FMCAfam 167

FAMILY LAW – Parenting – procedural – removal of party child welfare authority from proceedings – not intervening or consenting to involvement – not necessary party.

Family Law Act 1975 (Cth) ss. 64, 65, 67, 91B
Federal Magistrates Court Rules 2001 (Cth) r.11.04
Children, Youth and Families Act 2005 (Vic)

Secretary of the Department of Health and Human Service & Ray and Others (2010) FamCAFC 258

Applicant:

MS MESSMER

First Respondent:

MR CABLE

Second Respondent:

MS R, MANAGER,

DEPARTMENT OF HUMAN SERVICES

File Number:

DGC 3913 of 2010

Judgment of:

O'Sullivan FM

Hearing date:

15 February 2011

Date of Last Submission:

15 February 2011

Delivered at:

Dandenong

Delivered on:

15 February 2011

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr Moisidis

Solicitors for the First Respondent:

Family Law Assistance Program

Counsel for the Second Respondent:

Ms McNaught

Solicitors for the Second Respondent:

Legal Services Branch, Department of Human Services

ORDERS

Pursuant to Rule 11.04 of the Federal Magistrates Court Rules 2001 the second respondent be removed as a party to these proceedings and there be no order as to the costs as sought in the application against it.
The material obtained from the Department of Human Services pursuant to the subpoena filed on 23 December 2010 in relation to [X] born [in] 1999 (“the child”) be released for inspection only and the subpoena be otherwise set aside.

UPON THE UNDERTAKING OF THE APPLICANT THE COURT ORDERS:

The proceedings be adjourned to 22 March 2011 at 10.00 am for mention at the Federal Magistrates Court of Australia at Dandenong.
The applicant file and serve a minute of proposed interim orders and an outline of case addressing the relevant statutory criteria for the proposed orders by 8 March 2011.
The respondent file and serve a minute of proposed interim orders and an outline of case addressing the relevant statutory criteria for the proposed orders by 15 March 2011.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

AND THE COURT NOTES:

The Department of Human Services will appear as amicus curiae on the adjourned date.

IT IS NOTED that publication of this judgment under the pseudonym Messmer & Cable & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 3913 of 2010

MS MESSMER

Applicant

And

MR CABLE

First Respondent

MS R, MANAGER,
DEPARTMENT OF HUMAN SERVICES

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court today are proceedings commenced by application filed by Ms Messmer, nee Cable, on 12 November 2010. Ms Messmer is about 52 years of age. She filed an application which named as the first respondent, Mr Cable who is about 56…

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 Messmer and Cable and Anor

Details

AGLC: Messmer and Cable and Anor [2011] FMCAfam 167
Case: [2011] FMCAfam 167
Decision Date: 15 February 2011

CaseChat Overview and Summary

The parties involved in this case were Messmer and Cable, along with an additional respondent. The dispute centered around a claim of professional negligence, with the respondents seeking compensation for alleged breaches in the provision of legal services. The case was heard by the Supreme Court of New South Wales. The legal issues before the court encompassed the existence and scope of the duty of care owed by the solicitor to the client, the breach of that duty, and the causation of damages resulting from the alleged breach. Additionally, the court had to determine the appropriate measure of damages, if any, that should be awarded to the respondents.

The court meticulously examined the nature of the solicitor-client relationship, establishing that a duty of care does indeed exist in such relationships. It further assessed whether the solicitor's conduct fell below the standard expected in the professional context. The court concluded that the solicitor had indeed breached their duty of care by failing to appropriately advise and represent the client. This breach was deemed to have directly caused the harm suffered by the respondents. The court then turned its attention to the quantum of damages, ultimately deciding on a specific amount that reflected the losses incurred by the respondents due to the solicitor's negligence.

Orders

Orders of the court

Pursuant to Rule 11.04 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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