Pool (a pseudonym) v Parkinson

Case [2022] ACTCA 54


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

  1. 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…

Continue reading Pool (a pseudonym) v Parkinson

Sign in free to access the full text

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.