Alam v Giampietro

Case •

[2020] NSWDC 471

•

21 August 2020

District Court


New South Wales

Medium Neutral Citation: Alam v Giampietro [2020] NSWDC 471
Hearing dates: 3, 4, 5, 8 April; 29, 30, 31 July; 1, 2, 5 August; 13 November; 2 December 2019; 22 June 2020 (written submissions)
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction:Civil
Before: P Taylor SC DCJ
Decision:

(1)   Judgment in favour of the first plaintiff, Mr Alam, and second plaintiff, Mrs Saqiba Sattar, against the first defendant in the sum of $165,693.65.

(2)   Judgment for the second defendant against the plaintiffs.

(3)   Proceedings by the third plaintiff, Mrs Qamar Sattar, dismissed.

Catchwords:

NEGLIGENCE – professional negligence – client vs solicitor and barrister – advocate’s immunity

ESTOPPEL — issue estoppel — decisions to which applicable

Legislation Cited:

Civil Procedure Act 2005, s 99

Evidence Act 1995, s 91

Uniform Civil Procedure Rules 2005, r 7.10

Cases Cited:

Alam v QBE Insurance (Australia) Limited (Unreported, District Court of New South Wales, Gibb DCJ, 18 March 2016)

Alam v QBE Insurance (Australia) Limited (Unreported, District Court of New South Wales, Gibb

DCJ, 15 December 2016)

Alam v QBE Insurance (Australia) Ltd [2018] FCA 1560

Amalgamated Engineering Union (Aust Section), Ex parte; Re Jackson (1937) 38 SR (NSW) 13; (1937) 55 WN (NSW) 7

Arnold v National Westminster Bank plc [1991] 2 AC 93

Attorney General For Trinidad and Tobago v Eriché [1893] AC 518

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Cachia v Isaacs (1985) 3 NSWLR 366

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Donnellan v Woodland [2012] NSWCA 433

Giannarelli v Wraith (1988) 165 CLR 543

Henderson v Henderson (1843) 3 Hare 100

Jackson v Goldsmith (1950) 81 CLR 446

Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931

Kendirjian v Lepore (2017) 259 CLR 275

Kuru v New South Wales [2008] HCA 26

Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22

Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213

Mulgrave Central Mill Co Ltd v Hagglunds Drives Pty Ltd [2001] QSC 040

Pollnow v Armstrong [2000] NSWCA 245

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170

Texts Cited:

Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2007] HCATrans 150

Category:Principal judgment
Parties: Muhammad Mahmud Alam (first plaintiff)
Saqiba Sattar (second plaintiff)
Qamar Sattar (third plaintiff)
Leonardo Giampietro t/as Legal & Company (first defendant)
Quang T Nguyen (second defendant)
Representation:

Counsel:
Ms P A Horvath with Ms G Keesing (first defendant)
Mr R Carey (second defendant)

Solicitors:
Kennedys (first defendant)
Sparke Helmore Lawyers (second defendant)
File Number(s): 2017/61840
Publication restriction: None

Judgment

A. Introduction

  1. Muhammad Mahmud Alam, his wife, Saqiba Sattar, and her mother, Qamar Sattar, (“the Alam family”) were involved in litigation against their insurer, QBE, arising from fire damage to their home. Those proceedings did not conclude as favourably as they had hoped, and they commenced these proceedings against their then solicitor, Leonardo Giampietro of his firm Legal & Company and barrister, Quang Nguyen.

  2. Mr Alam and Mrs Saqiba Sattar were the plaintiffs in the earlier proceedings. During those proceedings, Ms Qamar Sattar was appointed as her daughter’s tutor. Mrs Saqiba Sattar has physical disabilities, which limit her ability to communicate.

B. Issues

  1. Identifying the issues is not straightforward. The plaintiffs were self-represented. Mr Alam attended, sometimes with Mrs Saqiba Sattar, and the proceedings were, by leave (which was unopposed), conducted on behalf of the Alam family by Ms Qamar Sattar. Her command of English, whilst apparently superior to that of Mr Alam and Mrs Saqiba Sattar, was limited and her communication less than clear on occasions, especially when she became emotional. Sadly, after the evidence and written submissions but before the conclusion of final oral submissions, Ms Qamar Sattar died. Mr Alam and Mrs Saqiba Sattar desired for the proceedings to continue, and, by consent, I made an order under r 7.10(2)(a) of the Uniform Civil Procedure Rules 2005 enabling this to occur without the estate of Ms Qamar Sattar being represented.

  2. The Amended Statement of Claim contained about 164 assertions, numbered 1 to 78, 1 to 55, 55A to Z and AA to AE. Few of these assertions are admitted by either of the defendants. The Amended Statement of Claim does not allege the ingredients of a coherent, readily discernible cause of action. The second tranche of assertions numbered 1 to 55 are preceded by a heading that refers to “NEGLIGENCE” and “DUTY OF CARE”, where a number of assertions complain about items of conduct of “Mr Leonardo”, as Mr Giampietro was generally called by the plaintiffs, and of Mr Nguyen. There was no allegation in terms of conduct causing damage, but the parties accepted that the case involved claims of negligence and the trial proceeded on that basis. Neither defendant applied to strike out the pleadings, although the form of the Amended Statement of Claim indicated that such an application might have enjoyed good prospects in respect of substantial parts of it.

  3. Many, but not all, of the allegations of the plaintiffs raise a question about the application of the advocate’s immunity doctrine.

  4. The issues between the parties can be listed as:

  1. What parts of the Amended Statement of Claim must fail because of the law governing advocate’s immunity.

  2. Did Mr Giampietro advise the Alam/Sattar family to demolish their fire-damaged house in early March 2014.

  3. Did Mr Giampietro fail properly to advise the plaintiffs about the insurer’s settlement offers, and their prospects of success.

  4. Did Mr Giampietro wrongly fail to join Ms Qamar Sattar as a party to the proceedings against the insurer.

  5. Did Mr Giampietro fail properly to advise Ms Qamar Sattar before she became the tutor of Mrs Saqiba Sattar.

  6. Did Mr Giampietro fail to commence appeal proceedings in time.

  7. Are there any other wrongs of Mr Giampietro, or wrongs of Mr Nguyen, which are pleaded and proved and which fall outside the advocate’s immunity doctrine.

  8. What, if any, damages were suffered by the plaintiffs.

C. Background

  1. At the conclusion of the proceedings against QBE, Judge Gibb made orders as follows:

“Judgment, orders and directions: Friday, 18 March 2016

  1. I enter judgment for the plaintiffs jointly in the sum of $131,281.24 ($35,100 (specified contents) + $5,000 (irreplaceable clothes) + $70,838.74 + $20,342.50).

  2. I reserve the question of costs entirely; and the matter is stood over for hearing of the costs applications on Monday, 30 May 2016.

  3. I return exhibits.

  4. I publish my reasons.”[1]

    1. Exhibit H, Alam v QBE Insurance (Australia) Limited (Unreported, District Court of New South Wales, Gibb DCJ, 18 March 2016) (“QBE Decision”).

“Costs orders and directions: Thursday, 15 December 2016

  1. I make no order for costs as between the plaintiffs (and Ms Qamar Sattar) and the defendant for the period before 14 November 2014, with the intention that such costs lie as they fall.

  2. I order that:

    •   Mr Alam; and

    •   Ms Saqiba Sattar jointly with Ms Qamar Sattar;

    pay on an indemnity basis the defendant’s costs of the proceedings as from Monday, 17 November 2014 up to the date of judgment in a sum specified pursuant to s98(4) of the Civil Procedure Act as $133,007.97.

  3. I order that:

    •   Mr Alam; and

    •   Ms Saqiba Sattar jointly with Ms Qamar Sattar;

    pay on the ordinary basis the defendant’s costs of the proceedings as from the date of judgment in a sum specified pursuant to s98(4) of the Civil Procedure Act as $8,463.

  4. I make no order for costs in respect of the plaintiffs’/applicants’ motion, and order that costs of that motion lie as they fall as between the plaintiffs/applicants and the respondent.

  5. I order pursuant to s99(2)(b)(ii) of the Civil Procedure Act 2005 (NSW) that Legal and Company Solicitors pay to the client, i.e., Mr Alam and Ms Saqiba Sattar jointly and severally, the whole of any costs that the client (Mr Alam and Ms Saqiba Sattar jointly and severally) has been ordered to pay to the defendant, whether or not the client (Mr Alam and Ms Saqiba Sattar jointly and severally) has paid those costs.

  6. I discharge the stay on the enforcement of the judgment entered on 18 March 2016.

  7. I direct that the Registrar refer to the DPP:

    •   Costs exhibit 9 (the original otherwise blank consent form signed Ms Qamar Sattar);

    •   The original consent to act as tutor filed in the court on 22 July 2015;

    •   A copy of this judgment specifically identifying Ms Qamar Sattar’s evidence that she did not sign the document filed in this court on 22 July 2015 as her consent to act as tutor:

    WITNESS: …, I read it now properly. The sign is not my signature

    …

    WITNESS: If you go to the next page, your Honour, you can look properly yourself that's not my sign. Another thing, I would never ever write the date like this.

    ...

    WITNESS: No, I signed a different one and Mr Donald's email this morning that I did not sign anything, I signed it on the 16th. He's saying in his email, "Documents of tutor you signed yesterday" and that he mentions 17 July and this is signed on 18th. In this email. So this is - this is

    …

    A. Yes, yes, I know. I know, but as I said to you, I did not bother to look that one. It wasn't my dream that the date and all these thing has changed. When this morning I was following directions here then I realised this signing is not my signing. That date is wrong. Then I follow the affidavit..(not transcribable)..the email. And that's why I brought those things this morning here.

    …

    Q. The form of consent to act as tutor that you signed upon going into the office of Legal and Company was the document that you have open there dated 18 July 2015, that's right, isn't it?

    A. No, this is not my sign.

  8. I return exhibits.

  9. I publish my reasons.” [2]

    2. Exhibit H, Alam v QBE Insurance (Australia) Limited (Unreported, District Court of New South Wales, Gibb DCJ, 15 December 2016) (“Costs Decision”).

    1. On 30 May 2016 the Court stayed execution of the judgment issued Friday, 18 March 2016 until 14 July 2016; on 21 July 2016 the stay was continued until 14 September 2016; and on 14 September and 11 October 2016 the stay was continued until resolution of QBE’s application on costs, which occurred on 15 December 2016. Thus, the judgment against QBE in favour of Mr Alam and Mrs Saqiba Sattar[3] was repeatedly stayed pending the determination of questions of costs. [4] That stay was discharged when the costs order, for payment of a specific amount of money by the Alam family jointly, slightly greater than the judgment, was made in favour of QBE. [5]

      3. Orders, 18/3/16 at [1].

      4. Orders, 30/5/16 and 15/12/16 at [6].

      5. 15/12/16 at [2]-[3] and [6].

    2. Mr Giampietro submitted that the Alam family have received a total of more than $272,000,[6] including the judgment sum. As the stay on enforcement was not removed until QBE had an offsetting judgment for a greater amount, I was not inclined to infer, without evidence, that QBE paid the judgment sum to Mr Alam and Mrs Saqiba Sattar, even though Judge Gibb refused to order a set-off. [7] There was a finding in bankruptcy proceedings that the judgment sum was paid,[8] but as the orders sought by QBE in those proceedings were refused, that finding was not crucial to the orders so as to give rise to any issue estoppel, and s 91 of the Evidence Act 1995 precludes use of that finding to prove the fact found.

      6. First defendant’s submissions, 23/8/19 at [72].

      7. Exhibit H p 125; Costs Decision p 55 of 61 pages.

      8. See Exhibit O, Alam v QBE Insurance (Australia) Ltd [2018] FCA 1560 at [22], per Lee J.

    3. However, in an attempt to establish the payment of the judgment, supplementary submissions by Mr Giampietro[9] identified a pleaded paragraph,[10] an item of evidence [11] and an oral submission by the Alam family. [12] The pleaded paragraph in the Amended Statement of Claim asserted “Plaintiff received only $140,000 including interest from 18-3-16 till now”. [13] As the plaintiffs received approximately $141,000 from the first defendant’s insurer in respect of costs, this acknowledgment is not unambiguously a reference to the judgment sum. The “evidence” was Exhibit 1D11, the Statement of Claim in the earlier proceedings against QBE, which was asserted by the defendants to contain a concession that “the plaintiffs accepted that they received the $140,000 (inclusive of interest): Ex 1D11”. [14] But this must be in error because Exhibit 1D11 contains no such concession, nor could one be expected since the payment, if it occurred, happened after judgment rather than before the commencement of those QBE proceedings. There is no reference to the $140,000 in the “Relief Claimed” in the present pleading.

      9. 22/6/20 at [4].

      10. Amended Statement of Claim at [15].

      11. Exhibit 1D11.

      12. T3/4/19, p 21/31-42.

      13. P 15.

      14. First defendant’s submissions, 22/6/20 at [2].

    4. The “oral submission” relates to an occasion where, in reference to an earlier iteration of the Statement of Claim in the proceedings where the plaintiffs claimed $438,593, Ms Qamar Sattar said “But I know it's 579 has to minus $130,000”, [15] the $130,000 inferentially being a reference to the judgment sum.

      15. T3/4/19, p 21/41.

    5. The evidence is not strong. The sum of $130,000 is approximately, but not precisely, the judgment sum. Just before this, Ms Qamar Sattar referred to “$130,000, when was already received in the Court on 18 March”. [16] 18 March 2016 was the judgment date. The approximate judgment sum together with the judgment date, and the acknowledgement of the need “to minus $130,000” is, I think, a reference to the judgment sum. Together with the earlier ambiguous reference to $140,000 it constitutes some evidence of receipt. But it was given by an unrepresented litigant with language challenges. Ms Qamar Sattar was not asked about this in cross-examination.

    6. But it seems not to matter. Either the judgment sum was paid or it remains an asset of Mr Alam and Mrs Saqiba Sattar. In either case, the damages “has to minus $130,000”. As the judgment sum awarded in these proceedings must factor into any calculation of damages, a finding about payment of that sum and its receipt by the Alam family is unnecessary, even if the defendants’ submissions relied on receipt. [17] It is sufficient that the amount has been awarded.

    7. An appeal against the orders made by Judge Gibb did not proceed, and these proceedings were subsequently commenced.

D. Advocate’s immunity

(a) The Law

16. T3/4/19, p 21/31.

17. First defendant’s submissions, 23/8/19 at [72].

  1. The existence of an advocate’s immunity from suit has been confirmed repeatedly by the High Court of Australia in recent times. [18] The immunity is not confined to negligence. [19] It extends not only to the conduct of the case in court, but also to “work done out of court which leads to a decision affecting the conduct of the case in court”, [20] or “work intimately connected with work in a court”. [21] If the immunity applies, the “advocate cannot be sued by his or her client for negligence”. [22]

    18. Giannarelli v Wraith (1988) 165 CLR 543; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [84]-[87] and [205]-[207]; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [2]-[6], [34]-[36], [45]-[46]; Kendirjian v Lepore (2017) 259 CLR 275 at [29]-[32].

    19. D’Orta-Ekenaike at [85]-[86]; Attwells at [66] per Nettle J.

    20. Giannarelli at 560 per Mason CJ; D’Orta-Ekenaike at 31 [86] per Gleeson CJ, Gummow, Hayne and Haydon JJ; Kendirjian at [37]-[39].

    21. Attwells at [2]-[3].

    22. D’Orta-Ekenaike at [1].

  2. The application of the immunity to misconducted settlements was considered more recently in Attwells [23] and Kendirjian. [24] The immunity extends only to work done by legal practitioners that has a “functional connection” to a decision in court,[25] defined by whether the work played a role in moving litigation towards a determination by the court, or that “bears upon the judge’s determination of the case”. [26] A settlement does not involve “the quelling of controversies by the exercise of judicial power”,[27] and thus does not enliven the immunity.

    23. (2016) 259 CLR 1.

    24. (2017) 259 CLR 275.

    25. Kendirjian at [31].

    26. Attwells at [38] and [46], also Kendirjian at [31].

    27. Kendirjian at [31].

  3. Thus, a client cannot sue the advocate if the advocate’s alleged negligent conduct is said to result in a decision on the merits of the case inferior to that which allegedly should have been made. But in respect of settlements, negligence that leads to acceptance of an unfavourable settlement is outside the immunity because there is no judicial decision on the merits which is called into question by the negligence action. [28] And negligence which results in the rejection of a favourable settlement is also outside the immunity because that negligence has only an “historical connection [with] …the continuation of the litigation” and “does not itself affect the judicial determination of a case”. [29] In such a case, there is no challenge to the ultimate decision, which might even support the negligence claim. Rather, the issue is “the reasonableness of advice … at the time the advice was given”. [30]

    28. Attwells at [49]-[53].

    29. Kendirjian at [32].

    30. Kendirjian at [34].

  4. There is authority for the proposition that the application of the immunity must be addressed before the merits of the claim, for to do otherwise would “subvert the very principle” of the immunity. [31] The High Court referred to this approach without deciding on its merits. [32] I propose to adopt this approach, and consider first which allegations are within the ambit of the immunity.

    31. Donnellan v Woodland [2012] NSWCA 433 at [259], see also Kuru v New South Wales [2008] HCA 26 at [12] but cf Donnellan at [6], [276]-[277].

    32. Kendirjian at [26].

(b) Allegations of negligence

  1. The first 78 paragraphs of the Amended Statement of Claim recount a history of the events and litigation. That history includes conduct of the barrister or solicitor which is at least implicitly criticised. However, that is insufficient to identify the conduct as an aspect of the alleged negligence, in circumstances where there is no allegation about the consequences of the conduct, where the narrative form of this part of the Amended Statement of Claim indicates that it is a matter of history and context only, and where the second section of the pleading specifically identifies items of alleged negligence. Consistent with this view, the plaintiffs’ submissions focussed only on the second section. It is to that section, comprising paragraphs numbered 1 to 55, that I turn.

  2. The allegations that the defendant practitioners assert fall within the immunity are those in paragraphs numbered [3], [4], [6] to [23], [25], [27] to [38], [41] to [53] and [55].

  3. Many of these paragraphs plead, as best as I can interpret them, matters that are connected to the case in court. They include allegations about one or more of the legal practitioners failing to gather evidence of conversations (paragraphs numbered [3], [47]), a failure to prepare a proper brief to counsel ([4]), failure to properly retain appropriate expert witnesses ([6],[9]-[13], [16], [22], [36]), failure to tender appropriate evidence of damage ([7]-[8], [20]-[21], [44]-[46], [55V]), wrongly tendering expert evidence ([15], [17], [19]), incorrectly advising the plaintiffs about expert evidence ([14], [41]) or the claim itself ([31], [55AC], [55AD]), failing to read or understand the content of the expert evidence ([18]) or other documents ([23], [34], [37]), being incapable of properly presenting or failing properly to present the case in court ([27]-[30]), failing to retain an experienced barrister ([32], [33], [35]), not informing the Court of matters ([38]), failing to call appropriate evidence ([50]-[53], [55W]-[55Y]), failure to properly cross-examine the insurance assessor or experts ([43], [55], [55A]-[J]) or otherwise cross-examine or make submissions on relevant matters ([55K]-[U], [55AA]-[55AB]) and failure to apply for a separate hearing on contents damage ([55Z]).

  1. The Alam family’s submissions did not engage with the scope and application of the immunity, so the Court was left, without hearing submissions to the contrary, to determine if the immunity applied.

(c) Conclusion

  1. Putting aside advice about settlement, each of the specified allegations can only be productive of damage to Mr Alam, Mrs Saqiba Sattar and Ms Qamar Sattar if they impact on the judicial determination. So much is conceded in the Amended Statement of Claim, where it is asserted that because of these matters:

“After looking all above details and coming to know how the case was place for judge in court it because cleared that the one was not prepared according to legal professional code of conduct and for that reason the plaintiff could not get the right damages for claims [sic].” [33]

33. Amended Statement of Claim, p 14 “Prayer”.

  1. It follows from the assertion that “the plaintiff could not get the right damages for claims”, that these matters comprise part of the conduct of the case in court, or work done out of court which leads to a decision affecting the conduct of the case in court or work intimately connected with work in a court. They are asserted to affect the damages awarded. Accordingly, insofar as they are established, these are matters that have a functional connection to a decision in court, and bear upon the determination of the case. They are alleged by the plaintiffs to be so. They are accordingly within the scope of the advocate’s immunity and cannot be the foundation of an action against Mr Giampietro and Mr Nguyen.

  2. For this reason, any claim based on these specified matters must be dismissed.

  3. The residue of the matters claimed by the plaintiffs and asserted by the defendants to be within the immunity are not so readily identifiable as being within its ambit. Those claims include ignoring Ms Qamar Sattar, who was allegedly a beneficiary of the policy (Amended Statement of Claim [25], [49]), misplaced confidence in the claim and advice “to make [fake] receipts” ([42], [48]) and failure to explain to Ms Qamar Sattar the rights and duties of a tutor ([55AE]). Each of those matters is within the ambit of other claims identified among the issues earlier and is dealt with below.

  4. I turn to the other matters alleged that are or may fall outside the advocate’s immunity.

E. Did Mr Giampietro advise the Alam family to demolish their fire-damaged house in early March 2014

  1. The Alam family alleged that when Mr Giampietro was asked “Can we demolish the house” he said “Yes… provided we made a DVD during demolish time after ripping off the living”. [34]

    34. Amended Statement of Claim at [26]-[37].

  2. Particular 1 of the Amended Statement of Claim asserts that:

“Mr Leonardo at first provide wrong instructions to demolish the house without duty of care and without looking all documents by first week of March 2011”.

  1. This allegation requires proof that Mr Giampietro was retained by the beginning of March to advise the Alam family, including in relation to the demolition of their house, that he advised them to proceed with the demolition, that it was negligent to do so and caused loss to the Alam family.

(a) Retainer and advice

  1. Mrs Qamar Sattar gave evidence that she and Mr Alam met with Mr Giampietro in the first week of March 2014. [35] Her affidavit states:

“While we were coming I asked can we demolish the house?

He said we can do that provided we make dvd at the time of demolish.”

35. Qamar Sattar affidavit, 30/7/19 at p 8.

  1. In cross-examination, Ms Qamar Sattar gave the following evidence:

“Q. Your evidence is also, I take it, that you asked Mr Giampietro about demolishing the house and that he said you could provided you make a DVD when you demolish?

A. Yes.” [36]

“Q. The last thing I just want to confirm, your evidence is, is it not, that it was only after you met with Mr Giampietro and he told you that it was okay that you started to demolish the house. That's what you say, isn't it?

A. He said wording is different. We asked can we demolish the house and he said, ‘Yes, you can do it provided you have to make the DVD.’” [37]

“Q. You wanted to find out, you wanted to demolish the house though, didn't you?

A. No, we asked him, ‘Can we demolish the house? Not we wanted. What are our rights. QBE not answering of our phone. Please give us the brief.’” [38]

36. T31/7/19, p 319/30.

37. T31/7/19, p 320/16-20.

38. T31/7/19, p 321/29-32.

  1. Mr Giampietro gave evidence that he first was retained to act for the Alam family a “few days prior to 21 June 2014” when Mr Alam and Mrs Qamar Sattar “attended upon me at my offices”. [39] In respect of the demolition, his affidavit records:

“I deny that I provided any advice to the Plaintiffs regarding their decision to demolish the building on the Property. As far as I am aware that demolition occurred in May 2014. As set out in paragraph 6 above, I was not retained by the Plaintiffs until on or about 21 June 2014”. [40]

39. Leonardo Giampietro affidavit, 10/10/18, Annexure J, 3/9/16 affidavit at [3] (p 37).

40. Leonardo Giampietro affidavit, 10/10/18 at [23(a)].

  1. Mr Giampietro’s evidence in cross-examination indicated that he did not recall much of the matters discussed at that meeting other than it was a discussion about the litigation. [41] He did not recall if any documents were then provided to him.

    41. T2/8/19, p 432/41.

  2. Mr Giampietro’s handwritten diary recorded an entry on 21 June 2014 saying “11.00, Insurance Indians”. He says the entry referred to the Alam family and that he opened a file on that day. On 25 June 2014 he sent an email to Mr Nguyen providing him with documents, and seeking confirmation that he was willing to be paid from the proceeds of a successful action. The email noted that they act for “Mrs Omar [sic] Sattar”, that the house was owned by her daughter and son-in-law, and that she was happy with the contents claim amount of $150,000 “but not with the determination that the house should be repaired instead of demolished”. [42] Mr Giampietro’s invoice dated 27 May 2016 recorded a first charge for a “Conference in office (2 hours)” on 23 June 2014. [43]

    42. Leonardo Giampietro affidavit, 10/10/18 at p 9.

    43. Leonardo Giampietro affidavit, 10/10/18, Annexure J, Annexure A to 11/11/16 affidavit (p 94).

  3. Mr Alam did not give evidence about the initial meeting.

  4. Mrs Qamar Sattar relied in support of her evidence upon a letter, Exhibit N, which states:

“14 March 2014

Attention: Mahmud Alam

I have received all bundles of documents related to building and contents claims.

For brief you must bring DVD after ripping off the lining of whole frame before the house will be demolished as I advised you.

Yours Faithfully

Legal & Company

Per: [signature]”.

  1. A literal reading of the letter supports an earlier retainer of Mr Giampietro on a date no later than 14 March 2014, and that Mr Giampietro gave advice in favour of demolition. The authenticity of this letter was challenged by Mr Giampietro.

  2. Ms Qamar Sattar gave evidence that the letter was provided to her on 14 March by a Chinese girl. [44] She said that after she, with Mr Alam, had left the bundle of documents, she was instructed by the Chinese girl to return later if they wanted an acknowledgement letter, which they did. Ms Qamar Sattar’s affidavit records that a “chines looking girl” gave her the letter on the day when Ms Qamar Sattar delivered a collection of documents. [45]

    44. T3/4/19, p 10/29-43.

    45. Qamar Sattar affidavit, 30/7/19 at p 9.

  3. Mr Giampietro called Nhu Thuy Lam to give evidence. Ms Lam was of East Asian appearance. She confirmed that the letter was not a document she recognised or had created, [46] nor was it the type of document Mr Giampietro prepared because, she said, he always did so on letterhead. [47] Ms Lam gave evidence that she had been working at Legal & Company for at least eight years and in that time was the only legal secretary employed there, [48] and that no other receptionist or support staff has been employed there during that time. [49] She also denied that “Frank”, who provides IT support to the firm, could have prepared the letter. [50]

    46. T1/8/19, p 384/36-43.

    47. T1/8/19, p 385/8-13.

    48. T1/8/19, p 384/17-28.

    49. T1/8/19, p 384/30-32.

    50. T1/8/19, p 388/39, p 389/23-28.

  4. When cross-examined by Ms Qamar Sattar, Ms Lam gave evidence that her practice was to sign any acknowledgement immediately upon receipt:

“Q. So my question is, have you given any document to us as an acknowledgement letter? For the documents we left it with you.

A. I I don't give you any acknowledgement because I did not give you any acknowledgement because if I did, I would have signed it on the spot by myself.

…

Q. Yes?

A. I from what I can recollect I did not give you any acknowledgement because if you come to the office, give me a document, ask for acknowledgement, I would sign it by myself.” [51]

51. T1/8/19, p 396/26-38.

  1. Ms Lam explained that when documents were received, her practice was to photocopy the front page of the documents, stamp it with the firm stamp, sign and date it and provide that page to the person providing the documents. [52] She said this was a practice she had adopted over many years. [53] She maintained this evidence when challenged.

    52. T1/8/19, p 390/1-6, p 391/5, p 391/10-15.

    53. T1/8/19, p 404/45-47.

  2. In submissions, Ms Qamar Sattar personally asserted that she could not remember the person’s face with whom she left the documents in March 2014 other than the person was “a fair lady with curly hair”, [54] although shortly thereafter she reverted to “chines looking girl” who she named Zheng. [55] She denied Ms Lam was present. Her concession of a limited memory of the person’s face and her altered description of the person with whom she left the documents do not support the reliability of her evidence.

    54. T1/8/19, p 393/27-30.

    55. Plaintiff’s reply submissions, 17/9/19 at [37].

  3. Mr Giampietro, in submissions, pointed to the circumstances of Exhibit N coming to light. The existence of the 14 March 2014 letter was referred to by Ms Qamar Sattar in her opening on 3 April 2019: [56] she said she was searching for the letter which seemed to be lost. [57] The letter (along with another document) was first marked as MFI #2 the following day in the trial. The letter was not referred to in the earlier proceedings when the Alam family sought personal costs orders against Mr Giampietro, [58] nor, despite an earlier vacated trial date, [59] served until partway through the trial, although Ms Qamar Sattar did assert in those proceedings concerning costs a first meeting with Mr Giampietro in March. [60] A call for the original of the letter was answered with Ms Qamar Sattar saying it was lost. [61] Ms Qamar Sattar’s account on 30 July 2019 [62] of the document being placed with papers in a different case was an account not mentioned in April 2019. [63]

    56. T3/4/19, p 10/29-43

    57. T3/8/19, p 10/44-48.

    58. T31/7/19, p 325/5.

    59. T31/7/19, pp 325/36-326/41.

    60. T31/7/19, p 322.

    61. T4/4/19, pp 44/18-49/47.

    62. T30/719, p 234/12-29.

    63. T31/7/19, pp 328/50-330/10.

  4. Apart from Ms Qamar Sattar’s recollection of a meeting and a conversation five years earlier, Exhibit N is the only evidence of a meeting with Mr Giampietro in March 2014 and of advice by him about the demolition. As Mr Alam did not give any evidence, the provenance of Exhibit N is important to an acceptance of Ms Qamar Sattar’s account.

  5. The physical appearance of Exhibit N is not convincing. The printing in the letter does not line up appropriately across the page but drops about 10 degrees below the horizontal. That anomaly might be explained by poor photocopying. There is also a line at the top right of the page which may indicate the positioning of the original letter but which also slopes slightly below the horizontal, but not so great an extent as the printing.

  6. The exhibit appears to have several hole punch marks, indicating that at least part of it was not a copy of an original but several copies removed.

  7. There was no evidence as to the signature on the page being a signature either of Mr Giampietro or Ms Lam. It is not distinctly dissimilar from some examples where Mr Giampietro has initialled documents, [64] but that alone was not enough to satisfy me that it was his signature (by his initials). Also, his copy signature would have limited probative force in a document some copies removed from the original.

    64. Eg Leonardo Giampietro affidavit, 10/10/18 at p 39.

  8. The content of the letter has several peculiar features: the reference to “Attention: Mahmud Alam” without any identification of the addressee or any usual salutation; the reference to “all” bundles of documents, which seems more consistent with what Ms Qamar Sattar wanted to establish from the letter rather than what Mr Giampietro or his firm would likely advise about the completeness of a collection of documents he has just received; the absence of the definite article before the reference to “building and contents claims”, before the reference to “brief”, and before the reference to “whole frame”; the use of the future form “will be” in respect of the demolitions rather than the present tense “is” in the context of the preposition “before”; the assertion of “as I advised you” without any reference to the date or occasion when that occurred; the absence of any letterhead or limited liability statement; [65] and the absence of any identification of the signatory. These features do not sit comfortably with the letter being produced in a solicitor’s office, at least without some evidence that the grammatical anomalies are common at Legal & Company. The absence of any comma in the letter is also a little odd.

    65. Cf Leonardo Giampietro affidavit, 10/10/18 at p 115.

  9. I also take into account what I regard as the unlikelihood of a solicitor advising of the appropriateness of demolition at an initial conference. The advice seems inconsistent with the contents of the email brief to Mr Nguyen some two to three months later, where advice concerning demolition is sought.

  10. In these circumstances, I am persuaded that the letter more closely reflects Ms Qamar Sattar’s use of the English language and more likely represents her creation rather than one of Legal & Company. As I do not accept it to be authentic, it is no evidence of a March 2014 meeting with Mr Giampietro or of advice from him in favour of demolition. The existence and use of an inauthentic document in the proceedings also tends to diminish the credit of Ms Qamar Sattar.

  11. There is also evidence that the plaintiffs had submitted applications to Council to demolish the house by late 2013, [66] indicating that at least a preliminary decision had been made to demolish the house before any meeting with Mr Giampietro. That alone would not be sufficient to cause me to reject the claim against Mr Giampietro.

    66. See Exhibits 1D1 to 1D4 and T31/7/19, p 323/20.

  12. Mr Giampietro also asserted[67] that any advice about demolition was neither subject to nor in breach of a duty of care. However, advice requested and given about whether demolition of the residence would impact adversely on the insurance litigation is a matter within a litigation solicitor’s expertise. Incorrect advice, not reasonably based, could amount to a breach of duty. And reliance could readily be inferred from the inquiry and the response.

    67. First defendant’s submissions, 23/8/19 at [48].

  13. Yet other difficulties of proof for the Alam family remain. Apart from the lack of documentary evidence of the advice that was sought and given, there was no evidence on the advice’s impact on the earlier preliminary decision to demolish, or on the litigation or the decision of the insurer.

  14. The failure of Exhibit N to be probative evidence of advice from Mr Giampietro, the unsatisfactory nature of Ms Qamar Sattar’s evidence, the failure of Mr Alam to give evidence, the documentary evidence of when Mr Giampietro was first retained, and the unlikelihood of demolition advice being given at the outset, in the context of the brief to counsel, left me unsatisfied that any advice supportive of demolition was sought or given before the demolition occurred.

  15. If, contrary to this finding, advice was given by Mr Giampietro which made a difference in the conduct of the case against the insurer, it may raise a question about the application of the immunity to that advice: if the claimed loss is a reduced judgment sum, which seems to follow from the assertion that “the plaintiff could not get the right damages for claims”, [68] then the immunity would seem to apply. Putting aside the advocate’s immunity, there is no evidence that a greater award than was given would have been made for the repairs to the undemolished house or how the losses were increased by the demolition. If, unrelated to the litigation, demolition was a poor financial decision because the damaged house had some residual value, then the defence that no such duty was owed by Mr Giampietro has greater force.

    68. Amended Statement of Claim, p 14 “prayer”.

  16. I am not persuaded that any advice was given by Mr Giampietro to any member of the Alam family to proceed with the demolition of the house. Nor am I satisfied that any advice in connection with demolition was actionable: any difference made to the result in the proceedings (of which I am not satisfied) would fall within the immunity, and any loss unconnected to the litigation was not established to be within any duty of care owed by Mr Giampietro.

F. Advice about settlement and prospects

  1. Allegations about a misconducted settlement are made in paragraphs 39 and 40 on p 10 of the Amended Statement of Claim. A related allegation is that Mr Alam and Ms Saqiba Sattar were not properly advised. [69] These matters have already been the subject of decision by Judge Gibb in making costs orders against Legal & Company in favour of Mr Alam and Mrs Saqiba Sattar. Her Honour found that Ms Qamar Sattar, not then a party, was informed of and rejected a Calderbank offer, but Mr Alam and Mrs Saqiba Sattar were not informed of it. [70] Relevantly, the QBE offer was to settle the proceedings by the payment of $250,000 plus costs to Mr Alam and Mrs Saqiba Sattar. [71]

    69. See Amended Statement of Claim, p 9 at [29], p 11 at [40].

    70. Costs Decision, p 52 of 61 pages.

    71. Exhibit H p 79.7; Costs Decision, p 9 of 61 pages.

  2. Mr Giampietro challenges this allegation on the basis that it is “factually inconsistent with every other aspect of the Plaintiffs’ case” because the “Plaintiffs’ claim in this proceeding presupposes that they would not have accepted an offer to settle for less than the full amount claimed”. [72] Whether or not this is an inconsistency, I am unpersuaded that it operates to preclude the claim. Advocate’s immunity aside, there is nothing preventing the Alam family from claiming that Mr Giampietro’s negligence precluded greater success in the litigation, and in the alternative, that the negligent failure of Mr Giampietro precluded them from accepting a favourable settlement. Mr Giampietro submitted that the Alam family did not want to settle. But a desire not to accept a settlement is not an element of the primary claim, nor is it an element of the alternative claim.

    72. First defendant’s submissions, 23/8/19 at [69].

  3. Speaking hypothetically, absent the advocate’s immunity, the Alam family could prove negligence by Mr Giampietro in conducting the litigation, and separately prove negligence in failing to procure a settlement. The calculation of damages in the former claim requires a comparison between the actual result and what would have occurred in the proceedings; in the latter claim the comparison is of the actual result with the settlement. The damages cannot be cumulative, since the plaintiffs cannot have achieved both a better result in the proceedings and a settlement. Rather, the plaintiffs would be entitled to elect success on the more favourable amount of damage. Thus, it is incorrect to assert, as does Mr Giampietro, that “the plaintiffs’ claim in these proceedings presupposes that they would not accept an offer to settle for the full amount claimed”. Rather, much of the plaintiffs’ claim presupposes that they did not accept an offer of settlement, a matter that is not in dispute. That Mr Giampietro may have negligently failed properly to advise in other areas can hardly be a defence to a claim of negligent advice in relation to a settlement.

  1. Some of the elements of this claim are established by estoppels arising from the decision of Judge Gibb. It is convenient to consider the principles of issue estoppel.

(a) The principle

  1. The principle of finality of judicial determinations manifests itself in litigation in a number of ways. One of those ways is in the law of advocate’s immunity, another is in the doctrine of issue estoppel. An issue estoppel precludes a party re-agitating an issue in proceedings against another party where that issue has already been finally determined between them. To arise, issue estoppel requires identity of parties, identity of subject matter, and a final judicial decision. [73]

    73. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [90].

  2. The question arises whether an issue estoppel arose from the Costs Decision. It was not disputed that a decision of this Court in giving a final order on costs is sufficient to give rise to an issue estoppel, even if it may be difficult to isolate the necessary or fundamental issues determined. Nor does any issue arise about an identity of parties, for both Mr Giampietro and the members of the Alam family were parties in the costs decision by Judge Gibb. The present concern is what, if any, relevant estoppels arose from her Honour’s decision.

  3. Mr Giampietro does not dispute that the Costs Decision could give rise to estoppels that conclusively determine issues between each of Mr Alam and Mrs Saqiba Sattar, on the one hand, and Mr Giampietro, on the other. They were each parties to the costs application and to the decision that Mr Giampietro was to indemnify Mr Alam and Mrs Saqiba Sattar against the costs order in favour of QBE.

  4. Not all findings of the Court give rise to an issue estoppel, only those determinations of “ultimate facts”[74] which form the “ingredients in the cause of action”. [75] The decision concludes debate not only as to “the point actually decided”, but “[m]atters cardinal” to that decision. [76] These ingredients, the elements of the cause of action, cannot be raised again for that would be “to assert that the former decision was erroneous”. [77] Matters “subsidiary or collateral are not covered by the estoppel”. [78]

    74. Jackson v Goldsmith (1950) 81 CLR 446, 467.

    75. Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23.

    76. Blair at 532.

    77. Blair at 532.

    78. Blair at 532.

  5. A majority in Cachia v Isaacs [79] decided that an issue estoppel might include matters not actually traversed in the earlier judgment, [80] although Dixon J in Blair specified that the issue estoppel has to be a matter “necessary to decide” and “which was actually decided”. [81]

    79. (1985) 3 NSWLR 366, McHugh JA dissenting.

    80. Cachia at 382 (per Hope JA), 368B, 369D (per Kirby P).

    81. Blair at 532.

(b) The estoppels that arise

  1. The costs orders of Judge Gibb indicate that the “right established” [82] is the right pursuant to order 5 of the Costs Decision to have Mr Giampietro pay an amount to Mr Alam and Mrs Saqiba Sattar equal to the amount they have been ordered to pay to QBE. So much is not disputed. It might be seen that one essential fact, an ingredient of that right specified in the order is that the conduct of Mr Giampietro in not giving Mr Alam and Mrs Saqiba Sattar an opportunity to accept the offer of settlement is what ultimately caused them to be liable for QBE’s costs. [83]

    82. Blair at 532.

    83. Costs Decision, pp 52-53 of 61 pages.

  2. The proper construction of an order was considered in Wende v Horwath (NSW) Pty Limited. [84] The Court of Appeal decided:

“In order to construe an order, a court should:

(a) identify the statutory power under which the order was made (to avoid a construction leading to invalidity);

84. [2014] NSWCA 170 at [59]-[62].

(b) address the language used, to identify a plain meaning if one is available;

(c) if latent ambiguity is alleged, refer to the reasons for judgment and the application to which the order responded;

(d) in the event of ambiguity (or other uncertainty), not resolved by reference to the reasons for judgment and the terms of the application, look to the submissions and (possibly) other material before the judicial officer on the application.”[85]

These principles would seem to apply equally to construing the judgment that justifies the order.

85. At [64].

  1. The indemnity effect of the order in favour of Mrs Saqiba Sattar is easy enough to understand: Judge Gibb reasoned that Mr Giampietro’s failure caused Mrs Saqiba Sattar to lose the benefit of a settlement and so should indemnify her for the costs of the unfavourable result in the QBE proceedings. It was an ingredient, a fundamental or cardinal matter, of the indemnity order that Mrs Saqiba Sattar would have accepted the settlement if informed of it. Mr Giampietro appears to accept this. On 20 November 2019 the first defendant submitted:

“The first defendant says that the facts which are fundamental or indispensable to Gibbs DCJ's cost decision are the following facts extracted from pages 51-53 of the judgment:

a. Qamar Sattar rejected the Calderbank offer of 17 October 2014 during her meeting

with the first defendant on 3 November 2014;

b. the defendant did not tell Saquiba Sattar and Mr Alam about the offer of 17

October 2014;

c. had she known about that offer, Saquiba Sattar would have accepted it;

d. Mr Alam would have made up his own mind about the offer, but was denied the opportunity to resolve the case.”[86]

Item “c.” is an acknowledgement of a finding of causation in favour of Mrs Saqiba Sattar and its fundamental character.

86. At [3]. See Costs Decision, pp 51-53 of 61 pages.

  1. Mr Giampietro submits that no decision was made that Mr Alam would accept the settlement, for Judge Gibb said that Mr Alam “was denied the opportunity to resolve the claim for no good reason, in circumstances where he had asked for a discussion at the outset”. [87] But that is not the only reference to this issue in the Costs Decision. The learned judge accepted [88] the evidence of Ms Qamar Sattar that:

“The beautiful offer was made on 17 October which we would have accepted it. My daughter would have accepted it. She was the main person to say yes or no. Mahmud has to follow, I had to follow. So this is not concern after that. Whatever the offer made.” [89]

87. Costs Decision at p 53 of 61 pages.

88. Costs Decision at p 52.9 of 61 pages.

89. Costs Decision at p 52.4 of 61 pages.

  1. The acceptance of this evidence is not just that “Ms Saqiba Sattar …would have accepted the offer if she had known about it”, [90] but also that “Mr Alam would have followed his wife’s lead”. [91] Her Honour refers to the rule in Browne v Dunn [92] in supporting these findings, presumably on the basis that there was no challenge to Ms Qamar Sattar’s evidence on this subject.

    90. Costs Decision at p 52.9 of 61 pages.

    91. Costs Decision at p 52.6 of 61 pages.

    92. Costs Decision at p 52.8 of 61 pages.

  2. That Judge Gibb made this finding about Mr Alam as well as Mrs Saqiba Sattar is also supported by the order made by her Honour. The order was based on s 99 of the Civil Procedure Act 2005, as her Honour found “serious neglect, serious incompetence and serious misconduct” under s 99. [93] Her Honour also found that “costs have been incurred” as a consequence under that provision. [94] Section 99 of the Civil Procedure Act 2005 provides:

“99Liability of legal practitioner for unnecessary costs

93. Costs Decision at p 47.5 of 61 pages.

94. See also Costs Decision at p 47.9 of 61 pages and Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931.

(1)  This section applies if it appears to the court that costs have been incurred—

(a)  by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or

(b)  improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

(2)  After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following—

(a)  it may, by order, disallow the whole or any part of the costs in the proceedings—

…

(b)  it may, by order, direct the legal practitioner—

(i)  in the case of a barrister…

(ii)  in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,

(c)  it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.

…”

  1. Thus, it was a necessary ingredient of order 5 of Judge Gibb in the Costs Decision that Mr Alam as well as Mrs Saqiba Sattar incurred costs as a consequence of Mr Giampietro’s serious neglect. That could only occur if, whether by following his wife’s lead or otherwise, Mr Alam would have accepted the settlement. Had Judge Gibb not determined that Mr Alam would accept the offer, there is no basis to conclude that he incurred costs as a consequence of Mr Giampietro’s conduct. This costs order is not punitive but compensatory, and I infer was intended to compensate Mr Alam and his wife from some part of the losses they suffered (in particular the adverse costs order) as a result of not accepting the offer, Mr Giampietro’s negligence having denied them that opportunity. That Mr Alam suffered a loss was thus “necessary to decide…as part of the groundwork” of her Honour’s decision that he should be indemnified against the QBE costs order; it was the foundation of the entitlement for the order in his favour.

  2. Whatever criticisms might exist in respect of this finding that Mr Alam and Mrs Saqiba Sattar would have accepted the offer, it was not the subject of an appeal and continues to bind the parties. Judge Gibb found that the QBE costs were incurred, and Mr Alam and Mrs Saqiba Sattar became liable for them, by reason of Mr Giampietro’s serious neglect. That finding created an issue estoppel in respect of the negligence of Mr Giampietro regarding the offer, and the consequence of loss, or costs incurred, that flowed from it, both for Mr Alam and Mrs Saqiba Sattar.

(c) Exceptions to issue estoppel

  1. Although not raised in argument, two possible exceptions arise in relation to the issue estoppel. First, whether it is necessary that Judge Gibb has jurisdiction to determine the validity of the decision in order for such an issue estoppel to arise, and secondly, whether “special circumstances” preclude an issue estoppel.

  2. As to the first matter, where a subordinate tribunal or inferior court must necessarily decide matters solely in order to exercise its jurisdiction, its decision does not conclusively determine those matters between the parties and no issue estoppel arises. This is because the Court has no general jurisdiction to determine those appendant incidental matters, but can only determine them in connection with the particular invested jurisdiction. [95] Unless the Court has jurisdiction to “decide the matter conclusively and for all purposes between the parties”, no issue estoppel arises. [96]

    95. Cachia v Isaacs (1985) 3 NSWLR 366 per McHugh JA at 387.

    96. Amalgamated Engineering Union (Aust Section), Ex parte; Re Jackson (1937) 38 SR (NSW) 13; (1937) 55 WN (NSW) 7.

  3. Thus, a magistrate’s decision about the existence of a criminal offence of digging on Crown land does not determine between the parties for all purposes whether the land was, or was not, Crown land, because that was beyond the magistrate general’s jurisdiction. [97] “[N]o greater ambit of finality should be attributed to” decisions of subordinate bodies than the legislation provides. [98]

    97. Attorney General For Trinidad and Tobago v Eriché [1893] AC 518, 523.

    98. Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647, 662 [40]; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [24]-[38].

  4. Here there is no dispute that the District Court had jurisdiction to determine conclusively and for all purposes whether Mr Alam should be entitled to an order from Legal & Company for costs, whether he was informed of the offer of compromise, and whether he would have accepted the offer.

  5. The second exception concerns “special circumstances”. The House of Lords in Arnold v National Westminster Bank plc [99] determined that where a subsequent decision of a higher court found an earlier decision (not the subject of an appeal) to have been incorrectly decided, the earlier decision should not create an issue estoppel. Arnold referred to the “special circumstances” [100] in Henderson v Henderson,[101] and indicated that there may be special circumstances “where estoppel does not operate”. The Arnold decision was referred to in Pollnow v Armstrong [102] and in Mulgrave Central Mill Co Ltd v Hagglunds Drives Pty Ltd [103] without criticism. In Commonwealth of Australia v Cockatoo Dockyard Pty Limited,[104] the High Court, in a special leave application, expressly refrained from expressing a view on the correctness of the “special circumstances” exception.

    99. [1991] 2 AC 93.

    100. Arnold at 107C.

    101. (1843) 3 Hare 100.

    102. [2000] NSWCA 245.

    103. [2001] QSC 040.

    104. [2007] HCATrans 150.

  6. No special circumstances have been identified by Mr Giampietro. The decision of Judge Gibb in respect of Mr Alam was criticised in submissions, [105] but that is insufficient to deny the issue estoppels.

    105. And see Exhibit O at [10]-[20].

  7. In the result, the decision of Judge Gibb creates an estoppel precluding Mr Giampietro in these proceedings from contending that Mrs Saqiba Sattar (as he accepts) and Mr Alam (notwithstanding it is disputed) would have accepted the offer of compromise had they been informed of it. The decision also establishes that Mr Giampietro “did not tell Saquiba Sattar and Mr Alam about the offer”. [106] Mr Alam gave no evidence either in this case or in the previous proceedings that he would have accepted either settlement offer, but that is immaterial because of the finding of Judge Gibb and the estoppel that flows from it.

    106. First defendant’s submissions, 20/11/19 at [3].

(d) Damages from the cost settlement

  1. Mr Giampietro made no claim for and was not awarded any costs against Mr Alam and Mrs Saqiba Sattar. [107] Whether that was because he had no entitlement under a conditional costs agreement, or because of the prospect of an order precluding recovery under s 99(2)(c) and (6), or because of a gratuitous waiver, or for other reasons, is not clear and is unimportant. But had the settlement been accepted, his costs were covered by the settlement. In the absence of evidence, of which there was none, I would not conclude that his costs would exceed the assessed costs offered to be paid by QBE as part of the settlement offer of 17 October 2014.

    107. Costs decision at p 21.6 of 61 pages and Order 4.

  2. The loss to Mr Alam and Mrs Saqiba Sattar is then the difference between the settlement amount and the amount they received from the judgment in the proceedings. They received the benefit of a judgment of $131,281.24, but the offer of compromise was for the sum of $250,000. Thus, on the findings of Judge Gibb, the value of the lost settlement was in the order of $118,718.76 ($250,000 – $131,281.24) plus interest.

  3. Mr Alam and Mrs Saqiba Sattar also received from Legal & Company’s insurer, the sum of $141,470.97 in January 2017. [108] Conversely, the Alam family have a liability to pay QBE this same amount under the costs order in favour of QBE, and it has not been paid. [109] This liability would not have existed had the settlement offer been accepted. In the result, this payment by the solicitors does not serve as a credit on the settlement amount. Its value is wholly exhausted in meeting the liability to QBE arising from the failure to settle.

    108. See Exhibits H and 1D8; T31/7/19 pp 350/35-351/43, p 353/1-5.

    109. T31/7/19, p 351/45-50, p 353/7-35.

  4. Mr Giampietro submits that “there is no evidence that QBE is still pursuing the Plaintiffs for those funds”. [110] That sits somewhat uncomfortably with the immediately previous submission, that “the Plaintiffs have not paid that money [monies paid by Mr Giampietro] to QBE”, [111] as if to suggest that QBE ought to have been paid the money even if they were not pursuing payment.

    110. First defendant’s submissions, 23/8/19 at [71e].

    111. First defendant’s submissions, 23/8/19 at [71d].

  5. In any event, it is not disputed that QBE have a judgment for $141,470.97 against the Alam family. Nor is it disputed that QBE has previously taken bankruptcy proceedings in the Federal Circuit Court and (unsuccessfully) resisted an appeal to the Federal Court, in respect of that judgment debt. [112] There is no submission that the judgment debt is not enforceable. I would infer that QBE, as a large insurance company, would act commercially to recover a judgment debt in the absence of some clear acknowledgement of an intention to do otherwise or of a waiver of the debt. The liability is not to be disregarded merely because there is no evidence of the current steps or intentions of QBE, or that bankruptcy proceedings were determined to be an inappropriate means of recovery of this judgment debt. [113]

    112. Exhibit O.

    113. Exhibit O, especially [71]-[72].

  6. For these reasons, it appears that Mr Giampietro is liable for the sum of $118,718.76 plus interest, being the difference between the judgment sum paid or payable to Mr Alam and Ms Saqiba Sattar, and the settlement amount of $250,000. Interest must be added to this amount. I infer the 17 October 2014 settlement, if accepted, would have been effected in the month after 14 November 2014, so interest can conveniently be calculated from 1 December 2014. The interest on $250,000 should run until today, but interest on the judgment sum, stayed until 18 December 2016, and similarly calculated from 1 January 2017 as a presumptive payment date (either because interest would not run on the judgment sum after payment or if not paid would be added to the judgment sum payable by QBE), should be credited against this amount. The effect is to calculate interest on the $250,000 from 1 December 2014 until 1 January 2016, and on the net amount of $118,718.76 from 1 January 2016 to date. The amount of interest so calculated is $46,974.89 ($17,040.98+ $29,933.91).

  7. Thus, the amount of damages caused by the negligent failure of Mr Giampietro to advise Mr Alam and Mrs Saqiba Sattar is $118,718.76 plus interest of $46,974.89, a total of $165,693.65.

(e) The consequence of this finding on the other claims

  1. Earlier[114] I rejected Mr Giampietro’s assertions that the claim based on the misconducted settlement could not be maintained because it was inconsistent with the other claims. Conversely, Mr Giampietro asserts that “Mrs Saqiba Sattar is estopped from running a case which is inconsistent with the finding that she would have accepted the 17 October 2014” offer. [115] While it may be that Mrs Saqiba Sattar is bound by the finding that she would have accepted the 17 October 2014 offer, that does not prevent her from running a case based on the fact that she did not accept it for the reasons discussed earlier. [116] It is undisputed that the settlement was not accepted. It is not a proper defence to the other claims of Mr Alam and Mrs Saqiba Sattar that by his negligence Mr Giampietro deprived them of a settlement they would have accepted. But the Alam family are not entitled to double recovery.

    114. See [59]-[60] above.

    115. First defendant’s submissions, 23/8/19 at [70].

    116. See [59]-[60] above.

  2. As Mr Alam and Mrs Saqiba Sattar are entitled to damages equating to the full benefit of the settlement, the other causes of action are only of utility to them if the damages exceed the settlement damages. But those other claims challenge the judicial determination by Judge Gibb and require a different result in the proceedings in order to succeed. That brings them within the ambit of the advocate’s immunity. Although these claims are precluded by the immunity, since they have been raised I propose to deal briefly with them.

G. The failure to join Ms Qamar Sattar as a plaintiff

  1. Paragraph 2 on page 2 of the Amended Statement of Claim asserts that Mr Giampietro “could not find out that Qamar Sattar was insured too and could not make her plaintiff in the case”. [117] The substance of this claim appears to be that Ms Qamar Sattar was a beneficiary under the policy because she was a “family member” and that Mr Giampietro negligently failed to join Ms Qamar Sattar as a plaintiff.

    117. See also Amended Statement of Claim at [24].

  2. Ms Qamar Sattar asserted that some of her contents were destroyed in the house fire. However, even if that were established by Ms Qamar Sattar, both that she had contents destroyed in the fire and that she sought to commence a claim against the insurer, still there is no evidence that the contents insurance component of damages would have been increased. The judgment of Judge Gibb does not indicate that the damages were reduced because some of the contents did not belong to Mr Alam or Mrs Saqiba Sattar, or that any distinction was made between household items belonging to Mr Alam and Mrs Saqiba Sattar and items belonging to Ms Qamar Sattar. [118]

    118. Exhibit H, QBE Decision, see generally pp 6-17 of 70 pages, especially pp 6.7, 8.4.

  3. In her submissions, Ms Qamar Sattar said “She has lost the privileges to get compensated too and also to prepare her case according to insurance law. This is a terrible negligence”. [119] This does not identify any loss occasioned to her by not being joined, and I am not satisfied she suffered any.

    119. Plaintiffs’ written submissions, 19/8/19, p 1.

  4. Further, the decision to join only Mr Alam and Mrs Saqiba Sattar as plaintiffs may be a matter of law, but its effect is not difficult to understand. Ms Qamar Sattar did not assert that she wanted to make a claim in the proceedings, only that she was not joined. I was not persuaded that she was ignorant of the effect that she could not claim a loss in the proceedings if she was not properly joined as a party.

  5. Further, the failure to join Ms Qamar Sattar of itself did not preclude or diminish a proper claim Ms Qamar Sattar could make for damaged contents other than in these proceedings. The judgment did not constitute a res judicata against her in respect of any losses she personally suffered from the fire. Nor did she in these proceedings bring evidence of the nature or value of her contents, or that some items of value belonging to her either mistakenly led to an award in favour of her daughter and Mr Alam, or that she has lost an entitlement to recover it. She gave evidence of the loss of contents in the proceedings against QBE, but did not identify any particular contents as hers. [120]

    120. See Exhibit H, QBE Decision, pp 6-10 of 70 pages.

  6. I am not satisfied that Ms Qamar Sattar lost some entitlement to the value of any lost contents by reason of not being joined personally to the proceedings.

H. Joining Ms Qamar Sattar as tutor

  1. In paragraph 26, p 9 of the Amended Statement of Claim it is alleged that “Mr Leonardo wrongly forced Qamar Sattar to be a tutor just to interpreted SAQIBA during trial [sic]”. Ms Qamar Sattar tendered a signed form of consent to act as tutor for Mr Alam and Mrs Saqiba Sattar dated 16 July 2015, [121] although Ms Qamar Sattar denied it was her signature.

    121. Exhibit A, pp 142-143.

  2. Ms Qamar Sattar complained in her affidavit about being appointed a tutor, asserting that she “made clear Saqiba is not qualified to appoint a tutor”[122] and that “Mr Leonardo wrongly forced [her] to be a tutor”, although this affidavit was wholly rejected. [123] Her oral evidence on the matter is limited, but she did ask Mr Giampietro:

“Q. Why did you decide to make the tutor to me for Saqiba?

A. Because of what you've told us about her condition and because you were at all times the mouthpiece of both plaintiffs.

Q. When did you decide?

A. Sorry, decide?

Q. When did you decide to appoint a tutor for Saqiba?

A. You were for all intents and purposes a tutor from the beginning but we formally had you appointed I think it was in 2015.

122. Affidavit, 11/8/17 at [68].

123. T4/4/19, p 60/37.

Q. In 2015, why in 2015? You knew it already in 2014, but why in 2015?

A. Because at that point it was clear that you were not willing to settle the proceedings against our advice, so we thought we had better formalise the tutor--” [124]

“Q. When did you obtain the signature from unskilled person, a non-person, did you explain the consequences of signing this form, submitting in the Court being a tutor for a disabled lady?

A. My understanding is that Mr Zheng would have explained that to you, although I can't be 100% sure.” [125]

“Q. You deal with the client every day. My concern is very simple, whatever the documents you making, whatever the contract you make, did you tell to the client, ‘Look, read, understand and this is Friday's time or seven days' time you can accept it or reject it’. Did you do that with this one, consent form?

A. I have no reason to believe that Mr Zheng would have departed from the proper practice at the time.” [126]

124. T5/8/19, p 522/32-46.

125. T5/8/19, p 526/10-14.

126. T5/8/19, pp 526/49-527/4.

  1. Ms Qamar Sattar’s appointment as tutor was the subject of decision by Judge Gibb. Her Honour observed that Ms Qamar Sattar had “expressly refused appointment as tutor” during the period of the settlement offer in late 2014 [127] and rejected Mr Giampietro’s evidence that Ms Qamar Sattar had told him that Ms Saqiba Sattar was intellectually challenged. [128] So:

“Mr Giampietro was wrong about the requirements for a tutor, he had no knowledge about Ms Saqiba Sattar’s status or condition in 2014…and knew nothing about Ms Qamar Sattar’s authority to speak for Ms Saqiba Sattar”. [129]

127. Costs Decision at pp 29-31 of 61.

128. Costs Decision at pp 30-31 of 61.

129. Costs Decision at pp 31 of 61.

  1. Judge Gibb found that in July 2015, Ms Qamar Sattar accepted that she should be appointed tutor, signed “an otherwise blank form nominating herself as tutor for both Ms Saqiba Sattar and Mr Alam” and signed an affidavit that may have contemplated the appointment. [130] Yet Ms Qamar Sattar denied she had signed the “consent to act as tutor” form, a signature of which Mr Giampietro’s counsel said that “Mr Giampietro says it has the resemblance of his signature…but he doesn’t have a recollection of signing it”.

    130. Costs Decision at pp 13 of 61 pages.

  2. Judge Gibb refrained from formally deciding whether the appointment should have occurred, stating:

“Ms Qamar Sattar is greatly aggrieved by finding that she is exposed to a costs liability. That is not a particularly surprising position if, as she says, she received no relevant advice. It is an open question whether she is able to seek a remedy in that respect. That is a matter beyond the scope of this judgment.” [131]

131. Costs Decision at pp 14 of 61 pages.

  1. By becoming a tutor, Ms Qamar Sattar became liable to an adverse costs order and she was ordered jointly with her daughter, and with Mr Alam, to pay QBE’s costs. Legal & Company were ordered to pay to Mr Alam and Mrs Saqiba Sattar the whole of the costs they were ordered to pay to QBE whether or not the costs of QBE were paid. [132] Judge Gibb also found that an offer of compromise made by the insurer was discussed with Ms Qamar Sattar and she rejected it. [133] There was no finding, nor evidence before me, that Ms Qamar Sattar rejected that offer of compromise because of any negligent advice from Mr Giampietro or Mr Nguyen.

    132. See Costs Decision at pp 53-55 of 61 pages.

    133. Costs Decision, p 52 of 61 pages.

  2. No party made submissions about whether an issue estoppel arose from those findings. Although there appears to be no issue about parties and a final judgment, cardinal matters to which an estoppel could attach are the decisions that Ms Qamar Sattar was appointed a tutor, that she was liable to pay QBE’s specified costs, and perhaps that she rejected the offer of settlement, although the significance, if any, of that finding to the costs order made against her is not clear.

  3. The findings that Ms Qamar Sattar was liable to QBE for costs, and that she was not directly a beneficiary of the s 99 costs order against Legal & Company in favour of Mr Alam and Mrs Saqiba Sattar, are findings open to be challenged on an appeal, but are not open to be challenged in these proceedings both because of the immunity and because of issue estoppel.

  4. As to the immunity, the dispute about the costs liability of Ms Qamar Sattar has been quelled by a judicial determination. Any negligent advice or action by Mr Giampietro, including Ms Qamar Sattar being appointed as a tutor to Ms Saqiba Sattar, which caused that determination has an obvious functional and intimate connection with it, and cannot be challenged in these collateral proceedings.

  5. Similarly, as to issue estoppel, even if Ms Qamar Sattar should not have been appointed tutor and thus a party, she was a party bound by a final decision in proceedings to which Mr Giampietro was also a party. She had the right to challenge that order on appeal but declined to do so. The judicial decision determined both her costs liability to QBE and the absence of any entitlement under the s 99 order made against Legal & Company.

  6. Whatever be the practical effect of the costs orders upon Ms Qamar Sattar, if a challenge was warranted, the place to challenge them was on appeal, and not in these proceedings.

  7. Further, it seems doubtful that Ms Qamar Sattar suffered damage by reason of the costs order made against her. Legal & Company has paid that amount to Ms Qamar Sattar on the direction of her daughter and son-in-law in accordance with the costs order. [134] But Mr Alam, with Mrs Saqiba Sattar and the estate of Ms Qamar Sattar jointly, remain liable for QBE’s costs of $141,470.97 because those costs have not yet been paid.

    134. Exhibit 1D8; T31/7/19, pp 350/35-351/31, p 353/7-35.

  8. Ms Qamar Sattar could only be jointly responsible with her daughter, and at no time in the proceedings was there any attempt to isolate the damages of Ms Qamar Sattar from the other members of the Alam family. Although the costs order against Legal & Company was not made in favour of Ms Qamar Sattar, she appears to be a practical and inevitable beneficiary of it.

  9. Mr Giampietro argued that any liability of Ms Qamar Sattar’s estate is a consequence of her not forwarding the money to QBE. This is not accurate even if it must follow that her liability to QBE would be discharged by payment. The liability arises from the costs order. The funds paid by Legal & Company were properly the funds of Mr Alam and Ms Saqiba Sattar, pursuant to Order 5 of Judge Gibb in the Costs Decision. I do not see that Ms Qamar Sattar erred in accounting to Mr Alam and Mrs Saqiba Sattar for the monies she received on their behalf. Their failure to use those funds to pay the costs of QBE is a separate issue between them and QBE, and cannot constitute a defence for Mr Giampietro.

  10. However, there is an inconsistency between Ms Qamar Sattar complaining about the costs she may have been ordered to pay as a tutor, and complaining about not being joined as a party. Were Ms Qamar Sattar to have been joined as a plaintiff, as she alleged Mr Giampietro failed to do, then the costs order would be founded on her being a party to the proceedings, whether she was appointed as a tutor regularly, irregularly, or not at all.

I. Failure to get advice from Senior Counsel and commence an appeal in time

  1. The Alam family claimed that Mr Giampietro negligently failed to appeal the decision of Judge Gibb. But there was no evidence that Mr Giampietro was instructed to appeal. The claim appeared to be based on a failure of Mr Giampietro to brief Senior Counsel to advise on an appeal, that the advice would have supported an appeal, that the plaintiffs would have followed that advice and that an appeal would have produced a more favourable result.

  2. The cause of action fails at the first hurdle. On 21 March 2016 Mr Giampietro sought instructions about whether the Alam family wished for him and Mr Nguyen of counsel to represent them in the appeal. In that letter, Mr Giampietro said “Quang Nguyen of counsel is investigating an appeal and is consulting with a silk this afternoon. We will keep you updated in this regard”. On 31 March 2016 Mr Alam and Ms Qamar Sattar attended a conference regarding the appeal. [135] The solicitors required some funds on trust for the costs of the appeal. Later, on 31 March 2016, after the conference had ended “abruptly”, an email from Mr Giampietro stated:

“Mr Nguyen is of the view that an appeal has reasonable prospects of success. We would be pleased to assist with an appeal and Mr Nguyen has already prepared preliminary grounds of appeal and has sent them to Senior Counsel for review”.

Mr Giampietro again raised the matter of the need for payment for the appeal and continued “you have 28 days from the judgment to file a notice of intention to appeal being 28 days from 18 March 2016…we await you further instructions if any”.

135. Leonardo Giampietro affidavit, 10/10/18 at [15].

  1. Mr Giampietro did not receive any instructions to commence an appeal or any funds from the Alam family. Rather, the plaintiffs obtained advice on appeal prospects from another barrister, Jason Donnelly, which was not so favourable [136] and an appeal was not pursued.

    136. See T31/7/19, p 349/26-42 and Advice of Jason Donnelly, 8/5/16 on USB stick in Exhibit K.

  2. Thus, it appears that Mr Giampietro was not asked to obtain advice from Senior Counsel on the prospects of an appeal. He, nevertheless, via Mr Nguyen, did obtain some informal advice. Even though that advice indicated reasonable prospects, Mr Giampietro received no instructions to maintain an appeal. And there is no evidence to enable a conclusion that the appeal would have resulted in a better outcome than the judgment of Judge Gibb, less still that an appeal would have succeeded to a sum to exceed the benefit of the settlement offer, which is the basis of the present calculation of damages. On the prospects of success of an appeal, the only evidence before me of any detail is that of the advice from the alternative barrister, Mr Donnelly, who indicated that there were not reasonable prospects of success. In those circumstances, there is no substance in the negligence claim based on a failure to maintain an appeal. That cause of action must be rejected.

J. The second defendant, and other matters

  1. The case maintained against Mr Nguyen fails because of the advocate’s immunity in the same way as it has failed against Mr Giampietro. A failure to give advice or the giving of negligent advice in relation to the conduct of the litigation is, apart from in respect of settlement, work that is squarely within the immunity and cannot be challenged.

  2. To the extent that a claim is made against Mr Nguyen in respect of the failed settlement, the Alam family cannot call in aid any findings of Judge Gibb. Mr Nguyen was not a party to the Costs Decision. That would seem to be the occasion to make a claim against him in respect of costs, and the failure to do so might raise a question about an Anshun estoppel.

  3. But more importantly, there was no relevant evidence linking Mr Nguyen to the Calderbank offer, no evidence that he advised against its acceptance or even in respect of it, and no evidence that might enable a conclusion that any of the Alam family would have acted on his advice. Whilst these difficulties are overcome in respect of Mr Giampietro by the Costs Decision, that decision is of no assistance in proving matters against Mr Nguyen.

  4. The claim also included an allegation that the legal practitioners gave advice to prepare false receipts. This allegation is not supported by any evidence, and even if it were established, there was no evidence that Judge Gibb admitted any false receipts or rejected any component of the contents claim because of a query about the authenticity of receipts. The unfounded allegation thus cannot produce any loss.

  5. Accordingly, I am not satisfied of any of the claims of damages for negligence other than in respect of the failed settlement offer.

K. Costs

  1. I will hear the parties on the question of costs.

L. Orders

  1. In accordance with these reasons, the orders of the Court are:

  1. Judgment in favour of the first plaintiff, Mr Alam, and second plaintiff, Mrs Saqiba Sattar, against the first defendant in the sum of $165,693.65.

  2. Judgment for the second defendant against the plaintiffs.

  3. Proceedings by the third plaintiff, Mrs Qamar Sattar, dismissed.

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Endnotes

Decision last updated: 21 August 2020

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Cases Citing This Decision

1

Alam v Giampietro trading as Legal & Company Solicitors [2023] NSWDC 454
Cases Cited

1

Statutory Material Cited

3

Alam v QBE Insurance (Australia) Ltd [2018] FCA 1560