Shekhani v Ardino - [2009] NSWCA 361

New South Wales

Court of Appeal

CITATION: Shekhani v Ardino [2009] NSWCA 361

HEARING DATE(S): 29 September 2009

JUDGMENT DATE:
9 November 2009

JUDGMENT OF: Ipp JA at 1; Bergin CJ in Eq at 110; Handley AJA at 111

DECISION: Appeal dismissed with costs

CATCHWORDS: TORTS - negligence – professional negligence – alleged work accident– appellant’s workers’ compensation proceedings against employer settled - appellant alleged respondent failed to advise him as to his common law rights against his employer – trial judge found that appellant did not sustain a work accident –trial judge found that the appellant’s allegation of a work accident was made fraudulently – trial judge found that where a claim is made fraudulently no damages should be awarded - trial judge’s findings upheld

LEGISLATION CITED: Workers Compensation Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CSR Limited v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Devries v Australia National Railway Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnson v Perez [1988] HCA 64; (1998) 166 CLR 351
Phillips v Bisley & Ors [1997] NSWCA 246

PARTIES: Jowhar Shekhani (Appellant)
Rocco Michael Ardino (Respondent)

FILE NUMBER(S): CA CA 40064/09

COUNSEL: S Norton SC; M Fraser (Appellant)
D L Williams SC; P S Braham (Respondent)

SOLICITORS: L J Sharpe & Co Lawyers (Appellant)
Yeldham Price O'Brien Lusk (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 739 of 2007

LOWER COURT JUDICIAL OFFICER: S J Gibb DCJ

LOWER COURT DATE OF DECISION: 16 December 2008

CA 40064/09
DC 729/07
IPP JA
BERGIN CJ in Eq
HANDLEY AJA 9 November 2009

Jowhar Shekhani v Rocco Michael Ardino

Judgment

The appellant's claim for damages

2 This appeal arises out of a claim for damages for professional negligence brought by the appellant against the respondent, a solicitor. According to the appellant he sustained injuries on Sunday, 15 March 1998, when he fell to the ground while cleaning a roof of a school in West Pymble in the course of his employment with Soliman Gilany and Brenda Gilany, trading as Gilany Services.

3 The appellant initiated proceedings for workers' compensation against the workers' compensation insurer of Gilany Services. In the course of his workers' compensation proceedings, the appellant was represented by five firms of solicitors. The respondent was the fourth solicitor retained. The appellant instructed the respondent as set out in para [2] above.

4 On 21 April 2004, the appellant settled the workers' compensation claim against the workers' compensation insurer. At that time, the appellant was represented by Mr Sharpe who was the principal of the fifth set of solicitors who had acted for the appellant in the workers' compensation proceedings. The settlement resulted in the appellant being paid a lump sum of $30,000, as well as costs and…

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 Shekhani v Ardino

Details

AGLC: Shekhani v Ardino [2009] NSWCA 361
Case: [2009] NSWCA 361
Decision Date: 9 November 2009

CaseChat Overview and Summary

The appellant, Shekhani, brought proceedings against the respondent, Ardino, alleging professional negligence. Shekhani claimed that Ardino, his legal representative, failed to advise him of his common law rights against his employer following a workplace accident. The primary dispute revolved around whether Shekhani had indeed sustained a work accident.

The central legal issues before the court were whether the trial judge erred in finding that Shekhani did not sustain a work accident, and consequently, whether the trial judge erred in finding that Shekhani’s allegation of a work accident was fraudulent. The court was also required to consider whether, in circumstances where a claim is found to be fraudulent, any damages should be awarded.

The court upheld the trial judge's findings. The trial judge had concluded that Shekhani had not sustained a work accident and that his claim of such an accident was fraudulent. Based on this finding of fraud, the trial judge determined that no damages should be awarded. The appellate court found no error in these conclusions.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Shekhani v Ardino [2009] NSWCA 361
HEARING DATE(S):	29 September 2009
JUDGMENT DATE:	9 November 2009
JUDGMENT OF:	Ipp JA at 1; Bergin CJ in Eq at 110; Handley AJA at 111
DECISION:	Appeal dismissed with costs
CATCHWORDS:	TORTS - negligence – professional negligence – alleged work accident– appellant’s workers’ compensation proceedings against employer settled - appellant alleged respondent failed to advise him as to his common law rights against his employer – trial judge found that appellant did not sustain a work accident –trial judge found that the appellant’s allegation of a work accident was made fraudulently – trial judge found that where a claim is made fraudulently no damages should be awarded - trial judge’s findings upheld
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CSR Limited v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 Devries v Australia National Railway Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnson v Perez [1988] HCA 64; (1998) 166 CLR 351 Phillips v Bisley & Ors [1997] NSWCA 246
PARTIES:	Jowhar Shekhani (Appellant) Rocco Michael Ardino (Respondent)
FILE NUMBER(S):	CA CA 40064/09
COUNSEL:	S Norton SC; M Fraser (Appellant) D L Williams SC; P S Braham (Respondent)
SOLICITORS:	L J Sharpe & Co Lawyers (Appellant) Yeldham Price O'Brien Lusk (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 739 of 2007
LOWER COURT JUDICIAL OFFICER:	S J Gibb DCJ
LOWER COURT DATE OF DECISION:	16 December 2008