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Pool (a pseudonym) v Parkinson

Pool (a pseudonym) v Parkinson

Case [2022] ACTCA 54 14 October 2022

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Pool (a pseudonym) v Parkinson
Citation:	[2022] ACTCA 54
Hearing Date:	8 February 2022
DecisionDate:	14 October 2022
Before:	Mossop J, Refshauge and McWilliam AJJ
Decision:	1. The appeal is dismissed with costs 2. The cross-appeal is dismissed with costs.
Catchwords:	APPEAL – PROFESSIONAL NEGLIGENCE – Historical child sex abuse - claim of solicitor’s negligence arising from conduct in 2017 in not advising appellant to apply to set aside a deed of release or otherwise “reopen” proceedings – whether primary judge erred in concluding there was no breach of retainer, or no loss or damage caused – no appealable error demonstrated – appeal dismissed APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Costs – cross-appeal from an order that due to a finding of breach of retainer in 2010 (for which relief was statute-barred), the parties should pay their own costs – no appealable error demonstrated – cross-appeal dismissed
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), s 35 Limitation Act 1985 (ACT), ss 11, 16B, 21C
Cases Cited:	Avopiling Pty Ltd v Bosevski [2018] NSWCA 146; 98 NSWLR 171 Badenach v Calvert [2016] HCA 18; 257 CLR 440 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Gould v Vaggelas (1984) 157 CLR 215 Harvey v Phillips (1956) 95 CLR 235 House v The King (1936) 55 CLR 499 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476 Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453 Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403 Zhang v Ng [2021] NSWCA 1369
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, The Response of the Marist Brothers to Allegations of Child Sexual Abuse against Brothers Kostka Chute and Gregory Sutton November 2015 (Report of Case Study No 13, November 2015)
Parties:	Peter Pool (a pseudonym) ( Appellant) Jason Dean Parkinson t/as Porter Lawyers ( Respondent)
Representation:	Counsel P Walker SC and B Buckland ( Appellant) D Villa SC ( Respondent)
Solicitors Sneddon Hall & Gallop ( Appellant) McInnes Wilson Lawyers ( Respondent)
File Number:	ACTCA 27 of 2021
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 13 May 2021 Case Title: Pool (a pseudonym) v Trustees of the Marist Brothers Property Group & Anor (No 3) Citation: [2021] ACTSC 89

THE COURT:

Introduction

The appellant was a student at Marist College between 1980 and 1985. He was sexually abused by members of staff at the school. He consulted the respondent, a solicitor, in March 2008 with the intent of commencing proceedings against those running the school to compensate him for damages he suffered as a result of the abuse. The respondent commenced proceedings on the appellant’s behalf on 22 August 2008. There…

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 Pool (a pseudonym) v Parkinson

Details

AGLC: Pool (a pseudonym) v Parkinson [2022] ACTCA 54
Case: [2022] ACTCA 54
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal and a cross-appeal concerning a solicitor's alleged professional negligence. The appellant, identified pseudonymously as Pool, claimed that the respondent, Jason Dean Parkinson trading as Porter Lawyers, negligently advised him regarding settlements in 2010 and 2017 arising from historical child sexual abuse he suffered. The primary judge had found the claim relating to the 2010 settlement to be statute-barred, but made a contingent finding of breach of retainer and assessed damages. The primary judge also found no breach of duty in relation to the 2017 dealings. The appellant appealed the decision regarding the 2017 dealings, and the respondent cross-appealed the costs order.

The legal issues before the court included whether the primary judge erred in concluding there was no breach of retainer or no loss or damage caused by the respondent's conduct in 2017. Additionally, the court considered whether the primary judge erred in ordering that each party bear their own costs, despite the appellant's overall lack of success, due to a contingent finding of a breach of retainer in 2010 for which relief was statute-barred. The court was required to determine if an appealable error had been demonstrated in relation to either the appeal or the cross-appeal.

The court dismissed the appeal, finding no appealable error in the primary judge's conclusion that there was no breach of retainer or loss caused by the respondent's conduct in 2017. Similarly, the court dismissed the cross-appeal, finding no appealable error in the primary judge's costs order. The primary judge's decision was upheld, meaning the appellant's claims were unsuccessful.

The appeal and cross-appeal were dismissed with costs.

Orders