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Eurobodalla Shire Council v Wells & Ors. [2006] NSWCA 5

The Facts

Mrs Aldridge issued a claim out of the District Court seeking damages from Eurobodalla Shire Council (?the Council?) for injuries suffered by her when a park bench on which she was sitting collapsed. The accident allegedly happened in a Council park, and the allegation was that the collapse of the bench was caused by a breach of duty of care on the part of the Council as occupier.

The Council was held not to have been negligent. The Judge also held that Mrs Aldridge did not meet the threshold for general damages under the Civil Liability Act 2003 (NSW), and in circumstances where her out of pocket expenses were $1,000, that $1,000 was the only sum that she would have recovered if she had proven the Council to be negligent.

Mrs Aldridge was represented at trial by Mr Wells (solicitor) and Mr Porthouse (barrister). Mr Wells and Mr Porthouse subsequently filed an application for leave to appeal. On 8 November 2005 the Court of Appeal dismissed the application for leave to appeal. In delivering the judgment Giles JA said words to the effect that he did not think there was any prospect of a successful appeal as to damages, nor was there any real case for liability, quite the contrary, and that the case below should be categorised as hopeless.

The Issue

The Council applied to the court for the following orders:

1. That the order requiring Mrs Aldridge to pay the Council?s costs in relation to the application for leave to appeal be varied; and
2. That in lieu thereof, Mr Wells and Mr Porthouse pay the whole of the Council?s costs in respect of the application for leave to appeal pursuant to the Legal Profession Act NSW 1987 (the Act).

The Decision

Section198M of the Act provides that where it appears to a court that a solicitor or barrister has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make an order directing the solicitor or barrister to indemnify the other party(s) against the whole or any part of their costs.

The Act goes on to provide that if the court is satisfied that the facts established do not form the basis for a reasonable belief that the claim would have reasonable prospects of success, then there is a presumption that the legal services were provided without reasonable prospects of success, and the presumption is only rebuttable by the solicitor or barrister establishing that at the time the services were provided there were provable facts sufficient to base the claim or defence which had reasonable prospects of success.

The court accepted that:

1. At trial no evidence was lead as to what had caused the bench to collapse;
2. As it could not be proved what caused the collapse, it could not be proved that it was caused by some act or omission on the Council?s part;
3. In the application for leave, Mr Porthouse said that his client?s arguments on liability were based on design, but there was no evidence as to who had designed or constructed the benches;
4. There was no evidence as to whether the Council knew or ought to have known that the design was defective.

The court said that the evidence before the trial court could not form a basis for a reasonable belief that Mrs Aldridge?s claim had a reasonable prospect of success and that presumption had not been rebutted by either Wells or Porthouse. The court noted that in the circumstances, it still had to exercise a discretion as to whether or not to make an order against the legal practitioners.

Giles JA concluded:

?I see no redeeming feature in this case. There is no question of difficult law that was involved in the decision whether or not to prosecute Mrs Aldridge?s claim. No account appears to have been taken of the need to prove the facts necessary to support the cause of action?.

The court also noted that Mrs Aldridge was a 55 year old lady, unemployed and living with friends in a tin shed at one stage, and who, on any view of her circumstances had no prospect of paying the costs of the application for leave to appeal.

Comment

The Council did not seek an order that Wells and Porthouse pay their trial costs. A court would be unlikely to make such an order in this case, as persons injuring themselves in collapsing park benches should generally be able to bring their claim before a court. It was the appeal which the court saw to be reckless.

The decision is a timely reminder to plaintiff lawyers, who spec claims and file appeals with one eye on their unrecoverable fees, to ensure that they do not fall foul of the Act.

For further information on this topic, please contact, Robert Samut.