CITATION: Mills v Bale & Anor [2010] NSWDC 162 HEARING DATE(S): 8, 9, 10, 11 and 24 September 2009
JUDGMENT DATE:
4 August 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff in the sum of $703,149.28;
2. The defendants are to pay the plaintiff’s costs on the ordinary basis, unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORTS – legal practitioners – negligence – events occurring prior to arbitration hearing leading to plaintiff compromising a claim for damages for personal injury against employer for a workplace injury – credit-based findings – whether plaintiff established alleged misleading representation by his solicitor – whether alleged conduct of solicitor amounted to a breach of the duty of care owed – whether statements by solicitor amounted to misleading and deceptive conduct within the meaning of s 42 of the Fair Trading Act 1987 – whether the alleged representation induced the plaintiff to compromise his claim – relevance of solicitor’s evidence of his “usual practice” – relevance of solicitor’s evidence of the “usual practice” of the barrister – absence of file notes by solicitor who claimed no recollection of events - - DAMAGES – measure of damages where plaintiff would otherwise have had his claim determined by the court in 2003 – considerations for assessment of damages and required adjustments to assessment LEGISLATION CITED: Civil Liability Act 2002
District Court Rules, Pt 9 r 27A
Fair Trading Act 1987, s 42
Legal Profession Act 1987, s 198J
Trade Practices Act, s 52
Workers’ Compensation Act 1987CASES CITED: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Bennett v Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 40
Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA; (1990) 169 CLR 594
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Council of the City of Liverpool v Turano [2008] NSWCA 270
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA12; (2005) 223 CLR 1
Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Kars v Kars [1996] HCA 37; (1996) 187 CLR 354
King Pty Ltd v Besser [2002] VSC 354
Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 22 ALR 621
Larson v Commissioner for Police [2004] NSWCA 126
Leotta v Public Transport Commission of NSW (1976) 9 ALR 437
Little v Law Institute of Victoria (No 3) [1990] VR 257
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles [2001]…
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- AGLC
- Mills v Bale [2010] NSWDC 162
- Case
- [2010] NSWDC 162
- Decision Date
CaseChat Overview and Summary
In the matter of Mills v Bale, the plaintiff sought to recover damages for personal injuries sustained in a workplace incident, which led to a compromise of his claim against his employer. The plaintiff alleged that his solicitor had made misleading representations to him, leading to the compromise of his claim. The court was tasked with determining whether the solicitor’s conduct amounted to a breach of duty of care and whether it constituted misleading and deceptive conduct under the Fair Trading Act 1987. The plaintiff also sought to establish the appropriate measure of damages, considering the timeline of events and the circumstances under which the compromise was made.
The court examined whether the plaintiff had proven that his solicitor made a misleading representation and if such conduct breached the duty of care. It was also necessary to determine if the solicitor’s statements constituted misleading and deceptive conduct as defined in the Fair Trading Act 1987. Additionally, the court had to assess whether the alleged misleading representation induced the plaintiff to compromise his claim. The court considered the solicitor's evidence of his usual practice and the absence of file notes, despite the solicitor's claim of no recollection of the events. The court also deliberated on the appropriate measure of damages, considering the timing of the events and the context of the compromise.
The court found in favour of the plaintiff, establishing that the solicitor had indeed made misleading representations that amounted to a breach of the duty of care. The court concluded that the solicitor’s conduct met the criteria for misleading and deceptive conduct under the Fair Trading Act 1987, and that these actions induced the plaintiff to compromise his claim. The court awarded damages to the plaintiff, adjusting the assessment to account for the timing of the events and the compromise. The court ordered the defendants to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered, and granted liberty to apply for further orders if necessary.
The final orders of the court included a verdict and judgment for the plaintiff in the sum of $703,149.28, with the defendants to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered. The court also allowed the exhibits to be returned and granted liberty to apply for further orders on seven days' notice.
The court examined whether the plaintiff had proven that his solicitor made a misleading representation and if such conduct breached the duty of care. It was also necessary to determine if the solicitor’s statements constituted misleading and deceptive conduct as defined in the Fair Trading Act 1987. Additionally, the court had to assess whether the alleged misleading representation induced the plaintiff to compromise his claim. The court considered the solicitor's evidence of his usual practice and the absence of file notes, despite the solicitor's claim of no recollection of the events. The court also deliberated on the appropriate measure of damages, considering the timing of the events and the context of the compromise.
The court found in favour of the plaintiff, establishing that the solicitor had indeed made misleading representations that amounted to a breach of the duty of care. The court concluded that the solicitor’s conduct met the criteria for misleading and deceptive conduct under the Fair Trading Act 1987, and that these actions induced the plaintiff to compromise his claim. The court awarded damages to the plaintiff, adjusting the assessment to account for the timing of the events and the compromise. The court ordered the defendants to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered, and granted liberty to apply for further orders if necessary.
The final orders of the court included a verdict and judgment for the plaintiff in the sum of $703,149.28, with the defendants to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered. The court also allowed the exhibits to be returned and granted liberty to apply for further orders on seven days' notice.
Orders
Orders of the court
1. Verdict and judgment for the plaintiff in the sum of $703,149.28;
2. The defendants are to pay the plaintiff’s costs on the ordinary basis, unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.
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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