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Shekhani v Ardino [2009] NSWCA 361. Ipp JA, Bergin CJ in Eq & Handley AJA agreeing.

After a 1998 rooftop fall and claim, the appellant brought workers compensation proceedings which settled in April 2004, for $30,000 plus s60s and costs.

Five firms had acted for the worker. He brought District Court proceedings against the fourth, contending failure to advise common law.

S J Gibb DCJ found the claim fraudulent.

Ipp JA dismissed the appeal with costs. The other Justices simply agreed.

His Honour recounted the appellant’s case: that without a harness, he had fallen from a wet school roof at West Pymble in March 1998. His Honour noted the variety of versions from the appellant, his witnesses and medical reporters about the incident and its sequelae.

“Her Honour said that the Liverpool Hospital records ‘show the evolution of what can only be described as a fabrication’. Her Honour found that the appellant's story was ‘a conscious fabrication’ and that the appellant's case involved ‘the conscious construction of a series of false statements by a number of people’. Her Honour said that that was a conclusion not reached lightly and she applied the test in Briginshaw v Briginshaw (1938) 60 CLR 336. There is nothing to suggest that her Honour erred in these findings,” Ipp JA said. [37]

There were various other aspects warranting disbelief of the claim.

Ipp JA said [infra 71]: “Damages will not be ordered for the prospect of recovering damages in a fraudulent claim. To hold otherwise would be contrary to public policy.

“Put another way, her Honour determined that, because the appellant's claim was fraudulent, he had no prospects of success.

"Where the trial judge assesses the prospects of success in the putative action as nil, no damages will be awarded: Phillips v Bisley & Ors [1997] NSWCA 246.

"As Brennan J said in Johnson v Perez (1998) 166 CLR 351 at ([2], 372), ‘If he would have failed in the original action, he has lost nothing’.” [72]

A: S Norton SC, M Fraser inst L J Sharpe & Co Lawyers. R: D L Williams SC, P S Braham, inst Yeldham Price O'Brien Lusk.

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