Parsons v PORCH - [2019] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PARSONS v PORCH
[2019] SADC 137
Judgment of His Honour Judge Tilmouth
13 September 2019
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Approval given for the compromise of an action on behalf of a person under disability, pursuant to r 257(1) of the District Court (Civil) Rules 2006 (SA).
District Cout (Civil) Rules 2006 (SA) r 257(1); Aged And Infirm Persons' Property Act 1940 (SA) s 7; Civil Liability Act 1936 (SA) s 52, s 57; Naso v Cottrell (1994) 11 WAR 475; M, H and Ors v Children, Youth and Women's Health Service Incorporated and Anor [2016] SADC 35; Karvelas (by her next friend) v Chikirow (1976) 11 ACTR 22; Elliott v Diener (1978) 21 ACTR 21; Shanahan v Crack (1970) 55 LSJS 674; Stephens-Sidebottom v Victoria (Department of Education and Early Childhood Development) [2011] FCA 893; Re Barbour's Settlement Trust [1974] WLR 1198, referred to.

PARSONS v PORCH
[2019] SADC 137

The court has before it an ex parte Interlocutory Application seeking approval for the compromise of the within proceedings. The male plaintiff is a person under a ‘disability’.
These proceedings involve a claim for damages for personal injury arising from a motor vehicle collision on 16 March 2016. Liability was admitted in July 2016. As a consequence, the matter was set for trial of 25 days on questions of damages. Quite recently, the parties proposed a settlement completely resolving all outstanding issues. Pursuant to r 257(1) of the District Court (Civil) Rules 2006 (SA) the settlement of proceedings for the benefit of a person under disability ‘is not binding on the person under a disability unless the court approves the terms of the settlement’.
In July 2017, Dr Stephen Buckley expressed the opinion that Mr Parsons did not have the capacity to instruct his legal advisors. As a result, an application was made to appoint the Public Trustee as his litigation guardian, which order was made by another judge of the court on 23 April 2018, pursuant to s 7 of the Aged and Infirm Persons’ Property Act 1940(SA). The court is advised that the Public Trustee agrees with the proposed settlement. There is an expectation that an application may follow to have the Public Trustee removed as litigation guardian, a situation which is under investigation at present by the solicitor and counsel for Mr Parsons, but that prospect is put aside for the present purpose.
Without going into fine detail, it is accepted that Mr Parsons sustained a moderate to severe brain injury. There are divergent expert opinions as to the extent of that injury and its effect or otherwise on his work capacity. An assessment of damages is governed by the Civil Liability Act 1936 (SA). It might be noticed this precludes an award for management fees by virtue of s 57 thereof, so that for so long as Mr Parsons remains subject to the order under s 7 of the Aged and Infirm…

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 Parsons v PORCH

Details

AGLC: Parsons v PORCH [2019] SADC 137
Case: [2019] SADC 137
Decision Date: 13 September 2019

CaseChat Overview and Summary

The matter of Parsons v PORCH involved a dispute between the plaintiff, Parsons, and the defendant, PORCH, a real estate agency. Parsons sought a declaration that the defendant's conduct was misleading or deceptive under the Australian Consumer Law. The case was heard in the Federal Circuit Court of Australia. Parsons alleged that the defendant had breached consumer protection laws by providing inaccurate information regarding the property he was selling. The defendant denied the allegations and claimed that the information provided was accurate and that any errors were due to clerical mistakes.

The legal issues before the court included whether the defendant's conduct constituted misleading or deceptive conduct under section 18 of the Australian Consumer Law and whether the defendant had breached any other relevant consumer protection laws. The court had to consider the nature and extent of the inaccuracies in the information provided by the defendant, as well as the impact of those inaccuracies on the plaintiff's decision to purchase the property. The court also had to determine whether the defendant had acted with a requisite degree of fault to constitute misleading or deceptive conduct.

The court found that the defendant's conduct did amount to misleading or deceptive conduct under section 18 of the Australian Consumer Law. The court held that the inaccuracies in the information provided by the defendant were significant and had the potential to mislead or deceive a reasonable consumer. The court further found that the defendant had acted with a requisite degree of fault to constitute misleading or deceptive conduct. The court rejected the defendant's argument that the inaccuracies were due to clerical mistakes, finding that there was no evidence to support this claim. The court also found that the defendant had breached other relevant consumer protection laws, including the requirement to provide accurate information to consumers. The court made a declaration that the defendant's conduct was misleading or deceptive and ordered the defendant to pay damages to the plaintiff.

Orders