Firth v Latham & Ors [2007] NSWCA 40

Firth v Latham & Ors [2007] NSWCA 40

The appeal was dismissed because it was open to the District Court judge to find that, when the trial commenced, the plaintiff's claim against Pittwater Council was without reasonable prospects of success. The Keramidas reports did not provide a fairly arguable basis for proving breach of duty by the Council, reliance on evidence that might emerge in another party's case or in cross-examination was a high-risk tactic unsupported by the reports, and s43A of the Civil Liability Act 2002 independently meant the plaintiff had no fairly arguable case against the Council. No House v R error was shown in the discretionary order under s348(1)(a) of the Legal Profession Act 2004.

Jurisdiction
Australia
Judgment Date
09 March 2007
Procedural Posture
Application for Leave to Appeal and Appeal From a District Court Costs Order Under S348(1)(a) of the Legal Profession Act 2004 / New South Wales Court of Appeal; Application for Leave to Appeal and Appeal Heard Together
Outcome
Extension of time and leave to appeal granted; appeal dismissed; leave to cross appeal refused; claimant ordered to pay costs of the application for leave to appeal and the appeal, with related costs orders in Latham v Fergusson [2006] NSWCA 288.
Legal Topics
['reasonable Prospects of Success' 'personal Costs Order Against Solicitor' 'bullock Order' 'public Authority Liability' 'special Statutory Power Under S43 a of the Civil Liability Act 2002']
['legal Practitioners' 'civil Procedure' 'costs' 'negligence' 'civil Liability'] ['reasonable Prospects of Success' 'personal Costs Order Against Solicitor' 'bullock Order' 'public Authority Liability' 'special Statutory Power Under S43 a of the Civil Liability Act 2002']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal and Appeal From a District Court Costs Order Under S348(1)(a) of the Legal Profession Act 2004 / New South Wales Court of Appeal; Application for Leave to Appeal and Appeal Heard Together

Legal Issues

  1. 1 ["Whether the plaintiff's claim against Pittwater Council had reasonable prospects of success when the trial commenced for the purposes of s345 and s348(1)(a) of the Legal Profession Act 2004." 'Whether McGuire DCJ erred in ordering the solicitor to repay costs awarded against the plaintiff in favour of Pittwater Council from the commencement of the trial.' "Whether a Bullock order should have been made requiring the driver to bear the Council's costs paid by the plaintiff." 'Whether s43A of the Civil Liability Act 2002 meant the claim against Pittwater Council was not fairly arguable at trial.' "Whether Pittwater Council should have leave to cross appeal to extend the solicitor's costs liability to the whole of the proceedings."]

Ratio Decidendi

The appeal was dismissed because it was open to the District Court judge to find that, when the trial commenced, the plaintiff's claim against Pittwater Council was without reasonable prospects of success. The Keramidas reports did not provide a fairly arguable basis for proving breach of duty by the Council, reliance on evidence that might emerge in another party's case or in cross-examination was a high-risk tactic unsupported by the reports, and s43A of the Civil Liability Act 2002 independently meant the plaintiff had no fairly arguable case against the Council. No House v R error was shown in the discretionary order under s348(1)(a) of the Legal Profession Act 2004.

Court Disposition

Extension of time and leave to appeal granted; appeal dismissed; leave to cross appeal refused; claimant ordered to pay costs of the application for leave to appeal and the appeal, with related costs orders in Latham v Fergusson [2006] NSWCA 288.

Orders

  • ["The time for the filing of the claimant's summons for leave to appeal is extended to 23 February 2006." "The claimant's application for leave to appeal is granted." "The claimant's appeal is dismissed." 'Leave to cross appeal by the second opponent is refused.' 'The claimant is to pay the costs of the Application...