Mills v Bale & Anor

Mills v Bale & Anor - [2010] NSWDC 162 - NSWDC 2009 case summary — Zoe

[397]

Period Date range Prescribed interest rate Days Interest amount

 29.12.2002 to 31.12.2006  9%                        1460  $148,465.53

 01.01.2007 to 05.03.2009  10%                       794   $89,712.05

 06.03.2009 to 08.09.2009  9%                        186   $18,914.10

 09.09.2009 to 30.06.2010  9%                        294   $29,896.48

 01.07.2010 to 04.08.2010  9.5%                      35    $3,756.83
 Total                     -                         -     $290,744.99

Parties

Applicant/Plaintiff:

Mills

Respondent/Defendant:

Bale & Anor

Cases Cited (55)

CITATION: Mills v Bale & Anor [2010] NSWDC 162

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Bennett v Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 40 Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA; (1990) 169 CLR 594 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Council of the City of Liverpool v Turano [2008] NSWCA 270 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA12; (2005) 223 CLR 1 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Kars v Kars [1996] HCA 37; (1996) 187 CLR 354 King Pty Ltd v Besser [2002] VSC 354 Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 22 ALR 621 Larson v Commissioner for Police [2004] NSWCA 126 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 Little v Law Institute of Victoria (No 3) [1990] VR 257 CASES CITED: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30 Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 50 Mason v Demasi [2009] NSWCA 227 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Parry v Cleaver [1969] UKHL 2 ; [1970] AC 1 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Shaw v Thomas [2010] NSWCA 169 State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146 State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

On behalf of the plaintiff, Mr McClintock SC launched a concerted attack on the credibility of the testimony given by Mr Schipp. He submitted that Mr Schipp's conduct in this case fell far short of the professional obligations he owed to the plaintiff. In making that attack, and in view of the gravity of the allegations relied upon for that attack, noting the allegations were made against a solicitor in connection with his professional conduct, he properly acknowledged it was necessary to prove the matters alleged to a higher degree of satisfaction on the balance of probabilities : Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

On behalf of the defendants, it was submitted "that the precise injury suffered by the plaintiff as a result of the accident on 8 November 2002 is impossible to determine." It was further submitted that because the plaintiff had provided incorrect and incomplete medical histories to various medical examiners, particularly in relation to his prior injury history. On these premises, the defendants submitted that the value of the medical reports obtained on behalf of the plaintiff was negligible due to the absence of sufficient foundations within the factual evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, p 649, at [7]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30, at [85].

Turning to the submission concerning inaccurate medical histories, I consider that this is not a proper basis upon which the plaintiff's credit ought to be impugned in this case. The reasons for this are twofold. First, for the reasons outlined above, I consider such a submission made at the behest of the former solicitors to be unjustly made. Secondly, the submission fails to have regard to the problems inherent in that approach : Mason v Demasi [2009] NSWCA 227 per Basten JA at [2] and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at[8]. Although these authorities were not decided at the time the principal proceedings were likely to have been heard in 2003, the underlying principles still hold good, and the perspective for analysis that these authorities provide, is available for consideration in these proceedings.

The requirements of s 5B of the Civil Liability Act 2002 must be satisfied before a breach of duty of care can be held to have been negligent : Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 per Sackville AJA at [81], citing Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, per Campbell JA at [172].

Whilst s 5B is to be taken as a reiteration of the considerations identified by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at [47] - [48], thus requiring those factors to be weighed: Erwin, at [82]-[83], the requirements of s 5B(1)(b) have also been characterized as being a slightly more demanding test than the position at common law : Shaw v Thomas [2010] NSWCA 169, per Macfarlan JA at [44].

For s 42 of the FT Act to be engaged, the conduct must be found to have occurred within trade or commerce. The phrase "in trade or commerce" in s 52 of the Trade Practices Act, 1974, which involves similar considerations to s 42 of the FT Act, is not a term of art but has a restrictive operation involving the central conception of the nature of the activity in question, namely a trading or commercial character : Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17, at [7]; (1990) 169 CLR 594 per the majority at 602-603.

In the context of the present case, it was the conduct of Mr Schipp in his dealings with his own client that has been impugned by the plaintiff. This raises questions as to whether a solicitor's dealings with his own client in the course of resolving litigation are caught by the section. There is a body of authority that suggests that it may not be so. For example, a statement made to a court did not constitute trade or commerce : Little v Law Institute of Victoria (No 3) [1990] VR 257, per Kaye and Beach JJA at p 273; Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 22 ALR 621, per Bowen CJ at pp 624-5; 36 FLR 134, at 139.

However, those cases involved statements made to a court, which was not the case here. In Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84, Little was construed to be limited to representations made in the course of litigation : per Hodgson JA in Stockland at [22].

The question of whether statements made to a client by his solicitor, in the course of advising upon settlement negotiations is caught by s 42 remains to be analysed. In LT King Pty Ltd v Besser [2002] VSC 354, at [27], in applying Little's case, Osborn J held: "In the case of the practise of law it is not appropriate to describe conduct in the area of litigation as conduct in trade or commerce."

A consideration of Issue 3 concerns causation and an evaluation of the plaintiff's reasoning for compromising the principal proceedings. In that evaluation the plaintiff bears the onus of establishing any fact relevant to the issue of causation : s 5E of the CL Act: Council of the City of Liverpool v Turano [2008] NSWCA 270 per McColl JA at [402]. The analytical steps for the statutory requirements for proof of the issue of causation are set out in s 5D of the CL Act. Those steps must be satisfied in this case.

[1988] HCA 64

(1940) 64 CLR 538

(1993) 176 CLR 40

(1962) 108 CLR 541

(1938) 60 CLR 336

(1990) 169 CLR 594

(2005) 223 CLR 1

(2007) 234 ALR 131

(1988) 166 CLR 351

(1996) 187 CLR 354

(1978) 22 ALR 621

(1976) 9 ALR 437