Feletti v Kontoulas

[2000] NSWCA 59

CITATION:	FELETTI v KONTOULAS [2000] NSWCA 59
FILE NUMBER(S):	CA 40537/98
HEARING DATE(S):	31 January 2000, 1 February 2000
JUDGMENT DATE:	23 March 2000
PARTIES :	ALAN CLARENCE FELETTI v EVAN A KONTOULAS
JUDGMENT OF:	Mason P at 1; Sheller JA at 78; Rolfe AJA at 79

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 20212/94
LOWER COURT JUDICIAL OFFICER :	Bell AJ

COUNSEL:	Appellant: P L G Brereton SC Respondent: M T McCulloch
SOLICITORS:	Appellant: Stewart Cuddy & Mockler Respondent: Phillips Fox
CATCHWORDS:	Negligence - solicitor - failure to advise client as to right of appeal against dismissal from Telecom - causation - valuing lost right - damages. ND
DECISION:	Appeal upheld

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40537/98
CLD 20212/94


MASON P
SHELLER JA
ROLFE AJA

Thursday 23 March 2000


Alan Clarence FELETTI v
Evan A KONTOULAS



JUDGMENT

1 MASON P: The appellant sued his former solicitor in the Supreme Court and recovered a verdict of $80,150. The appellant claims that the verdict should have been $668,766. The solicitor seeks leave to cross-appeal, contending that there should have been a verdict for the defendant, alternatively that excessive damages were awarded. 2 In 1967 the appellant commenced to work for the Postmaster General's Department as a technician in training. By 1978 he held the position of Technical Officer, Grade 1. By then his employer was the Australia Telecommunications Commission (Telecom). In 1988 the appellant was dismissed for misconduct in accordance with procedures found in Part V Division 6 (ss57-64) of the Telecommunications Act 1975 (Cth) (“the Act”). Stated broadly, the claim against his solicitor relates to the solicitor's contribution to the appellant's failure to lodge a timely notice of appeal against the dismissal and the loss stemming from this dismissal. That loss is in effect the value of the respondent’s secure employment with Telecom. 3 In 1985 the appellant was posted to Telecom’s Lower North Shore branch. At the St Leonards headquarters the subscribers’ installation and repair manager was Mr Jack Morris. Beneath Mr Morris in the hierarchy was the principal technical officer responsible for customer planned equipment maintenance (Mr Cookson) and his assistant (Mr Nordstrom). Beneath them were technical officers of various grades (including the appellant), technicians and technician’s assistants. 4 The appellant’s job was to correct faults that occurred with telephone systems, usually business systems, within the relevant area. In his particular field time was of the essence. He had virtually permanent access to a Telecom van. Spare parts needed for servicing telephones or replacing damaged ones were drawn from a store at St Leonards. The appellant kept a ready supply of such parts in the van. These included older telephones whose parts were likely to be needed promptly if there was an emergency call at night or on the weekend. This appears to have been a common practice, but especially appropriate for the respondent’s particular clientele. All of this equipment remained the property…