Searle v Commonwealth of Australia (No.9) [2023] NSWSC 215

Supreme Court New South Wales

Medium Neutral Citation: Searle v Commonwealth of Australia (No.9) [2023] NSWSC 215 Hearing dates: 28 February 2022; 01-04 March 2022; 07-10 March 2022; 14-18 March 2022; 21-25 March 2022 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Common Law Before: Garling J Decision: See [490] Catchwords: CONTRACTS — Remedies — Damages — Loss of chance — Chance to gain employment having obtained a qualification — Chance lost as a consequence of the defendant's failure to provide training in accordance with their contracted obligations — Determination as to time that chance was lost — Determination that nature of breach did not affect assessment of damages — Determination that valuation of part performance did not depend on a proposition that the group members ought to have undertaken further training in the absence of a defence of failure to reasonably mitigate CONTRACTS — Remedies — Damages — Assessment — Assessment of claims by nine group members — Consideration of personal circumstances and evidence particular to those group members — Valuation of the lost chance based on likelihood of realising hypothetical lost earnings greater than actual earnings — Chance of realising hypothetical lost earnings affected by the group member's aspirations and plans and other personal decisions such as those regarding place of residence and whether to adopt parenting obligations — Valuation discounted to account for the possibility that the chance would not be realised CIVIL PROCEDURE — Representative proceedings — Remedies — Damages — Assessment — Assessment of individual claims by group members who appeared with leave pursuant to ss 168 and 169 of the Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005 (NSW) Pt 10 Income Tax Assessment Act 1997 Education and Training Reform Act 2006 (Vic) Trade Practices Act 1974 (Cth) Cases Cited: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-643; [1990] HCA 20, McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 McCrohon v Harith [2010] NSWCA 67 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10 Robinson v Harman (1848) 1 Ex 850 at 855; 154 ER 363 Searle v Commonwealth of Australia (No.2) [2018] NSWSC 1017 Searle v Commonwealth of Australia [2018] NSWSC 105 Searle v Commonwealth of Australia (No.5) [2022] NSWSC 119 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 Searle v Commonwealth of Australia (No.3) [2019] NSWSC 14 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Wenham v Ella (1972) 127 CLR 454 Texts Cited: Not applicable Category: Principal judgment Parties: Clayton William Searle (P) Commonwealth of Australia (D) Representation: Counsel: N Kidd SC / D Meyerowitz-Katz (P) K Andronos SC / S Keizer (D)