One of the founding principles of our legal system is that a plaintiff has a right to have his or her case conducted in court as long as there is no abuse of process in doing so.  However, this principle causes some tension where the plaintiff’s lawyer has formed the view that the prospects of success are poor but the client wishes to proceed in any event.

In this Alert, Senior Associate Anna Hendry considers the decision of the New South Wales Court of Appeal in Bird v Ford[2014] NSWCA 242 and the lessons that may be learned from the experience of the respondent legal practitioner in that case.


The appellant, Ms Bird, and her husband retained the respondent solicitors to act for them and their son (the student) in relation to the expulsion of the student from a private secondary school.  Negotiations failed to produce a resolution and the appellant commenced proceedings in the Equity Division of the Supreme Court seeking a declaration that the decision to expel was subject to the observance of procedural fairness which had not been followed, thoroughly invalidating the decision.  The appellant also sought judicial review of the school’s decision and an injunction to restrain the school from preventing the student from attending.

The appellant’s action was not successful due to a finding that the school was not bound by rules of procedural fairness at common law, there was no basis for implying such a contractual term, and that the principal’s decision was not amenable to judicial review under the Supreme Court Act 1970 (NSW).

The appellant subsequently commenced proceedings in negligence against the respondent solicitor alleging breach of retainer and breach of duty by advising the appellant to bring proceedings that were misconceived and had no prospects of success and for failing to adequately advise of the risks of the proceedings.


In order to succeed against the respondent, the appellant had to show that the proceedings in the Equity Division were entirely misconceived and manifestly hopeless.  The issues of whether the principal’s decision was subject to rules of procedural fairness and could be the subject of judicial review were novel and no direct New South Wales authority was available.  After considering available case law from various jurisdictions, the trial judge found that “this was clearly not a case where it can confidently be concluded that the only advice then, or earlier open to be given in the discharge of [the respondent’s] obligations was that even if [the appellant’s] version of the events which had occurred were accepted, the Court did not have any power to grant the plaintiffs [appellant] or their son any relief in relation to the expulsion decision”.

Further, it was accepted that the respondent advised the appellant that it was a novel and difficult case and that there was an arguable view of the law in support of the claim but that the case could be lost because of jurisdictional questions, or on the facts, or on discretionary factors and the respondent recommended that the appellant not institute proceedings.  Finally, it was noted that the appellant told the respondent that “if [the respondent] did not wish to pursue the matter, [the appellant] would continue without him”.

On that basis, the appellant was unsuccessful in proving a breach of either retainer or duty.  The advice given regarding the risks of litigation and its associated costs was found to have discharged the duty owed and there was a finding that if there was a breach of duty, it was not causative of the appellant’s loss in the sense that the appellant would have pursued the litigation in any event.  Those findings were not overturned on appeal.

Key points:

This case highlights the importance of clear communication between solicitor and client, especially where the client elects to pursue a course of action against the solicitor’s recommendations.  In particular, it is prudent to:

  • Provide clear written advice of prospects of success and areas of weakness in relation to any proposed litigation.
  • Provide clear written advice regarding the costs of proceeding with litigation and the potential for exposure to adverse costs orders following unsuccessful litigation.
  • Keep detailed file notes of discussions with clients evidencing the client’s understanding of the above issues and desire to proceed with the litigation, regardless.