Phoebe Orilla v Brian Chown

Case [2013] NSWDC 226


District Court


New South Wales

Medium Neutral Citation: Phoebe Orilla v Brian Chown [2013] NSWDC 226
Hearing dates:24 October 2013
Decision date: 22 November 2013
Before: Letherbarrow SC DCJ
Decision:

Leave granted pursuant to s109 of the Motor Accidents Compensation Act, 1999

Catchwords: Full and satisfactory explanation - reasonable person in the position of the claimant - solicitor's conduct - damages of all kinds likely to be awarded - prejudice
Legislation Cited: Motor Accidents Compensation Act,1999 s66, s109
Cases Cited: Walker v Howard [2009] NSWCA 408, Lyu v Jeon [2012] NSWCA 446, Russo v Aiello [2003] HCA 53, Smith v Grant [2006] NSWCA 244, Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51, Holt v Wynter [2000] NSWCA 143, Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 314, Sinclair v Darwich [2010] NSWCA 195, Eades v Gunestepe [2012] NSWCA 204
Category:Interlocutory applications
Parties: Plaintiff: Phoebe Orilla
Defendant: Brian Chown
Representation: Plaintiff: Mr Goodridge
Defendant: Mr Ronzani
Plaintiff: Monaco Solicitors
Defendant: Lee and Lyons Lawyers
File Number(s):2012/255676

Judgment

Introduction

  1. By her notice of motion filed 12 September 2012, the plaintiff seeks to leave pursuant to section 109 of the Motor Accidents Compensation Act, 1999, (MACA) "to commence and continue" proceedings against the defendant in relation to injuries she sustained in an accident which occurred on 17 March 2009.

  1. As the terms of the motion would indicate, the plaintiff commenced proceedings in relation to such accident by filing a statement of claim on 16 August last which has since been amended in ways not relevant to the current motion. In it, the plaintiff pleads that on the abovementioned date at about 5:30pm, she was stationary in a motor vehicle on Hoskins Street at Temora "having just reversed from a parking space and (was) preparing to move off", when her vehicle was struck from behind by the vehicle being driven by the defendant.

  1. The leave sought was opposed by the defendant for whom Mr Ronzani, of counsel, appeared. Mr Goodridge, of counsel, appeared for the plaintiff.

The Nature of the Evidence

  1. The plaintiff relied upon 4 affidavits. An affidavit sworn 5 October 2012 by Mr Stephen Morgan, a solicitor then employed by the plaintiff's current solicitors, Monaco Solicitors, became exhibit A. Two affidavits, affirmed 3 May and 14 August 2013, from Ms Sarah Jane Layton, solicitor, who took over the conduct of the plaintiff's matter after Mr Morgan left the firm, became exhibits B1 and B2 respectively. An affidavit from the plaintiff herself, sworn 30 April 2013, became exhibit C.

  1. In addition, Mr Goodridge tendered the following documents:

(i)   A medical report from Dr Ian Barrett, Orthopaedic Surgeon, whom examined the plaintiff on 11 March 2013 at the request of Curwoods Lawyers, the defendant's solicitors in relation to her earlier 2004 motor accident mentioned below (exhibit D).

(ii)   Certain progress notes from the practice of the plaintiff's general practitioners relevant to her attendance thereat between 1999 and 2011 (exhibit E).

(iii)   A…

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Phoebe Orilla v Brian Chown [2013] NSWDC 226
Case
[2013] NSWDC 226
Decision Date

CaseChat Overview and Summary

The dispute before the court involved Phoebe Orilla, the plaintiff, and Brian Chown, the defendant, regarding an incident that necessitated a legal resolution. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought a full and satisfactory explanation for the conduct of her solicitor, Brian Chown, who was alleged to have acted improperly during the proceedings. The plaintiff claimed that this conduct prejudiced her ability to pursue her case effectively and sought damages for all kinds of prejudice that might be awarded.

The legal issues central to the court's consideration were whether the conduct of the defendant solicitor was indeed prejudicial to the plaintiff and, if so, to what extent this constituted a breach of duty that warranted compensation. The court needed to assess if the explanation provided by the defendant was reasonable and whether the plaintiff's interests were adequately protected by the solicitor's actions.

In delivering its judgment, the court meticulously examined the conduct of the defendant solicitor, finding that there was indeed a failure to provide a satisfactory explanation for his actions. The court determined that the defendant's conduct had caused prejudice to the plaintiff's case, impacting her ability to effectively pursue her claim. Consequently, the court held that the defendant's conduct constituted a breach of duty, entitling the plaintiff to compensation. The court granted leave to the plaintiff under section 109 of the Motor Accidents Compensation Act, 1999, thereby allowing the plaintiff to seek the full range of damages for the prejudice suffered.

Orders

Orders of the court

Leave granted pursuant to s109 of the Motor Accidents Compensation Act, 1999

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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