Jadwan Pty Ltd v Rae & Partners (A Firm)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] FCAFC 62
• Date: 09 April 2020

FEDERAL COURT OF AUSTRALIA

Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62

Appeal from:	Jadwan Pty Ltd v Rae & Partners (A Firm) (No 4) [2018] FCA 968
File number:	TAD 28 of 2018
Judges:	BROMWICH, O’CALLAGHAN AND WHEELAHAN JJ
Date of judgment:	9 April 2020
Catchwords:	NEGLIGENCE – appeal by way of rehearing – where the primary judge dismissed the appellant’s applications against the respondent solicitors seeking damages for alleged professional negligence – duty of care owed by the first to fourth respondent solicitors and counsel in providing legal advice to the appellant nursing home operator – where the appellant, in respect of its Derwent Court nursing home in Hobart, faced Commonwealth government sanctions and the revocation of its approval as a Commonwealth funded nursing home operator under the National Health Act 1953 (Cth), and sought advice from the first to fourth respondent solicitors and counsel – errors by primary judge – Full Court to decide for itself – whether the first to third respondents and counsel were negligent in failing to advise the appellant that it had grounds to challenge a decision of a delegate of the Minister to impose financial sanctions pursuant to s 45E of the National Health Act – whether the appellant would have acted on such advice – whether the first to fourth respondents and counsel were negligent in failing to advise the appellant of the enactment of the Aged Care Act 1997 (Cth) and the transitional provisions in the Aged Care (Consequential Provisions) Act 1997 (Cth) – whether the first to fourth respondents and counsel were negligent in failing to advise the appellant of the significance of that legislation to a proposed decision by a delegate of the Minister to revoke its nursing home approval pursuant to s 44(2) of the National Health Act – what advice did the exercise of reasonable care require – first to fourth respondents and counsel negligent in failing to identify new legislation – whether, if reasonable and prudent advice given, the appellant would have become an approved provider of aged care services upon the commencement of the Aged Care Act – characterisation of the appellant’s claim as one for its lost opportunity to become an approved provider under the new legislation and to conduct its nursing home business at new premises, or alternatively, to sell its Commonwealth approvals to another approved provider – formulation of the content of reasonable and prudent advice – causation involving proof of a past hypothetical in which circumstantial evidence was the dominant consideration, assessed prospectively and without the benefit of hindsight, on the balance on probabilities – finding that even if the appellant had been given reasonable and prudent advice by its solicitors and counsel, the appellant had not established that it would have become an approved provider of aged care services upon the commencement of the Aged Care Act and thereby have avoided the damage which it claimed – appeal dismissed. ; APPEAL – nature of appellate review – principles that guide appellate review of findings of fact – whether error of primary judge must be demonstrated as wrong by “incontrovertible facts or uncontested testimony” – statements of principle in appellate judgments should not be treated as if they were provisions of a statute – whether error if findings open on the evidence – duty of appellate Court – consideration of Devries v Australian National Railways Commission, Fox v Percy and Robinson Helicopter Company Inc v McDermott
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 41(2) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 11, 15, 16 Aged Care Act 1997 (Cth) Div 1, Part 2.1, Part 4.4, ss 7, 10‑2(1), s 14‑1, 16-1 to 16-11, 42-1, 42‑4, 54‑1, 54‑2, 66‑1, 67‑1 to 67-5, 68‑1, 68-3, 96‑1 Aged Care (Consequential Provisions) Act 1997 (Cth) ss 7, 20, 74, 75(1)(c), Schedule 1 Civil Liability Act 2002 (Tas) s 4 Constitution s 75(v) Evidence Act 1995 (Cth) s 140(1) Federal Court of Australia Act 1976 (Cth) ss 23, 24(1)(a) Judiciary Act 1903 (Cth) ss 39B(1), 80 National Health Act 1953 (Cth) ss 4, 39, 39A, 39AA, 39B, 40AA, 40AD, 44, 45D, 45DB, 45DC, 45E, 105AAB National Health Regulations 1954 (Cth) Part 4, regs 8, 11, 12(1), 12(3), 12(11), 16, 19, 28 Supreme Court Rules 2000 (Tas) Wrongs Act 1958 (Vic) s 66
Cases cited:	Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 AJH Lawyers Pty Ltd v Hamo [2010] VSCA 222; 29 VR 384 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) [1996] FCA 256; 64 FCR 73 Armory v Delamirie (1722) 1 Str 505; 93 ER 664 AS Bannister v Sirrom Enterprises Pty Ltd [2016] SASCFC 153 Ashby v Slipper [2014] FCAFC 15; 219 FCR 322 Badenach v Calvert [2016] HCA 18; 257 CLR 440 Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 Benning v Wong (1969) 122 CLR 249 Birrell v Australian National Airlines Commission [1984] FCA 419; 5 FCR 447 Boensch v Pascoe [2019] HCA 49 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 62 ALR 53 Cassell & Co Ltd v Broome [1972] AC 1027 Chambers v Jobling (1986) 7 NSWLR 1 Chaplin v Hicks [1911] 2 KB 786 Chappel v Hart [1998] HCA 55; 195 CLR 232 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC [2007] FCAFC 132; 162 FCR 466 Cousins v Cousins [1991] ANZ Conv R 245 CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1 Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 Dearman v Dearman [1908] HCA 84; 7 CLR 549 Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 Dominic v Riz [2009] NSWCA 216 Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172 Edwards v Noble [1971] HCA 54; 125 CLR 296 Firth v Sutton [2010] NSWCA 90 Fox v Percy [2003] HCA 22; 214 CLR 118 Grant v Sun Shipping Co Ltd [1948] AC 549 Hawkins v Clayton [1988] HCA 15; 164 CLR 539 Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 247 CLR 613 Jadwan Pty Ltd v Middletons (formerly Coltmans Price Brent) [2007] TASSC 74; 17 Tas R 9 Jadwan Pty Ltd v Minister for Health and Family Services [1998] FCA 715; 51 ALD 245 Jadwan Pty Ltd v Porter [2004] TASSC 107; 13 Tas R 162 Jadwan Pty Ltd v Porter (No 2) [2004] TASSC 126; 13 Tas R 219 Jadwan Pty Ltd v Secretary, Commonwealth Department of Health and Aged Care [2002] FCA 1052 Jadwan Pty Ltd v Secretary,...