The Importance of Consulting with a Lawyer
Seek advice as to the prospects of success of proposed legal action
By Tom Lynch
The NSW Court of Appeal recently dismissed an application to appeal to the jurisdiction from an applicant unhappy with a decision of the NSW District Court.
In the application of Maynes v Casey, the applicants (Mr and Mrs Maynes) unsuccessfully sought to appeal a judgement of the District which found that they did not have grounds to successfully sue the Caseys (father and son) for trespass, assault and invasion of privacy.
Under NSW law, in order to appeal a judgement to the Court of Appeal, the Maynes would have show that should they be successful in their action, the award of damages from the court would amount of a value of $100,000.00 or more.
In the original hearing, the District Court found that the actions of the Caseys (they entered the Maynes’ land to serve documents on them, allegedly assaulted them and later photographed and videoed specific areas of their property) were reasonable and did not constitute tortious (negligent) conduct in the circumstances. The District Court found that the actions of the Caseys could not possibly cause an award of damages of more than even $50,000.00, and, in any event, the actions of the Caseys were reasonable.
When the Maynes applied for leave to appeal to the Court of Appeal, the Court of Appeal agreed with the District Court and refused grant the Maynes leave to appeal the decision. The Court of Appeal also ordered that the Maynes’ pay the Casey’s costs spent in objecting to the Maynes’ application to appeal.
Lesson:
Both the original action brought by the Maynes in the District Court and subsequent decision to appeal were very unlikely to succeed as the amount of money they were seeking was far disproportionate to “wrongs” they had suffered.
When considering commencing legal action, you must be sure to speak to a lawyer who will give you an honest and reasonable appraisal of your prospects of success. Many legal claims are commenced by individuals who have not received open and full advice from their lawyers about their prospects of success. Should you commence proceedings which are unsuccessful, there is a strong possibility that you will be liable to pay not only your own legal costs, but also the legal costs of the other party.
If you are unsure about whether you should commence legal action, you should talk to Craig Painter who will be able to openly advise you as to your prospects of success in your proposed action.
p. 02 6206 1300
