Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 (09 April 2020) (Bromwich, O’Callaghan and Wheelahan JJ)


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