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Wood v Firth

Wood v Firth

Case [2013] NSWSC 845 27 June 2013

Civil Litigation & Procedure

Professional Negligence

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Supreme Court

New South Wales

Medium Neutral Citation: Wood v Firth [2013] NSWSC 845
Hearing dates: 31 May 2013, and written submissions 14 June 2013
Decision date: 27 June 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Appeal dismissed.

Catchwords: LOCAL COURT APPEAL - proceedings against solicitor - failure to advise date for acceptance of CARS award - alleged failure to account for interest - costs order - amendment to raise bias allegation - amendment to raise claim magistrate wrongly failed to include amount for loss of use - whether magistrate erred in acting on basis that plaintiff received offers of compromise within time for acceptance.
Legislation Cited: Civil Liability Act 2002
Evidence Act 1995
Local Court Act 2007
Motor Accidents Compensation Act 1999
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; 239 CLR 175
Brown v Repatriation Commission [2006] FCA 914
Ciszek v Enterprise Financial Solutions Pty Ltd [2010] NSWSC 1265
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28
Coulter v R [1988] HCA 3; 164 CLR 350
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Dumitrov v SC Johnson & Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Pritchard v DJZ Constructions Pty Ltd & Ors [2012] NSWCA 196
Repatriation Commission v Warren [2008] FCAFC 64; 167 FCR 511
Sayed v Deng [2012] NSWSC 851
Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332
Category: Principal judgment
Parties: Phillip Wood (Plaintiff)
Stephen Paul Firth t/a Firths the Compensation Lawyers (Defendant)
Representation: Counsel:
In person (Plaintiff)
M.J. Bleasel (Defendant)
Solicitors:
In person (Plaintiff)
Firths (Defendant)

File Number(s): 2012/396881
Decision under appeal

Date of Decision:

2012-11-26 00:00:00

Before:

Brydon LCM

File Number(s):

2012/396881

Judgment

The plaintiff, Phillip Wood, appeals from two judgments of the Local Court. In the first judgment, published on 26 November 2012, the presiding magistrate upheld only a small part of his claim against the defendant, Stephen Firth (the "Liability Judgment"). His Honour entered a verdict for $3,743.26 against Mr Firth. Mr Firth was Mr Wood's former solicitor.

In the second judgment, published on 3 December 2012, his Honour ordered Mr Wood to pay Mr Firth's costs from 23 June 2012 which his Honour assessed as $10,000.00 (the "Costs Judgment").

For the reasons that follow Mr Wood's appeal must be dismissed.

Background

The following is taken from the findings set out in the Liability Judgment. That judgment clearly identified the background to the matter and the issues in dispute and set out his Honour's findings on matters of fact and law.

In 2002 Mr Wood was injured while driving a motor coach. He engaged Mr Firth to pursue a claim for compensation on his behalf. His claim was initially the subject of…

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 Wood v Firth

Details

AGLC: Wood v Firth [2013] NSWSC 845
Case: [2013] NSWSC 845
Decision Date: 27 June 2013

CaseChat Overview and Summary

The case of Wood v Firth involved a dispute between the plaintiff, Mr Wood, and the defendant, Mr Firth, a solicitor. Mr Wood sought damages for personal injuries sustained in a motor vehicle accident, including loss of use of his vehicle. The dispute centred on the defendant's alleged failure to properly advise the plaintiff of the date for acceptance of a Compulsory Accident Rehabilitation Scheme (CARS) award and to account for interest on the settlement amount. The case was heard in the Local Court and subsequently appealed.

The primary legal issues before the court were whether the defendant had breached his duty of care by failing to properly advise the plaintiff regarding the acceptance date of the CARS award, and whether there was a failure to account for interest on the settlement amount. Additionally, the court considered whether the plaintiff's amendments to his statement of claim, which included allegations of bias against the magistrate and a claim that the magistrate had wrongly failed to include an amount for loss of use, were permissible. The court also examined whether the magistrate had erred in considering offers of compromise that were received by the plaintiff outside the time for acceptance.

The court found that the defendant had indeed breached his duty of care by not properly advising the plaintiff about the acceptance date for the CARS award. However, the court ruled that there was no failure to account for interest on the settlement amount. The amendments to the statement of claim were deemed late and not permissible. The court held that the magistrate had not erred in considering the offers of compromise received outside the acceptance period, as the plaintiff had not demonstrated that these offers were made within the required timeframe. Consequently, the appeal was dismissed, and the orders made by the Local Court were upheld.

The final orders of the court were that the appeal was dismissed, and the costs of the appeal were awarded to the defendant. The court did not alter the original decision of the Local Court regarding the defendant's liability or the amount of damages awarded to the plaintiff. The plaintiff's claim for additional interest on the settlement amount and the allegations of bias were not substantiated by the evidence presented.

Orders