Gattellaro v Spencer - [2010] NSWSC 1122

CITATION: Gattellaro v Spencer [2010] NSWSC 1122

HEARING DATE(S): 15-31 March 2010

JUDGMENT DATE :
6 October 2010

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: 1. Judgment for the defendants.
2. Plaintiff to pay the defendants' costs.

CATCHWORDS: COMMON LAW - professional negligence - solicitors - litigation - alleged failure to properly conduct case - immunity.

LEGISLATION CITED: Contracts Review Act 1980
Trade Practices Act 1974
Supreme Court Rules 1970
Civil Liability Act 2002
Real Property Act 1900

CASES CITED: Marston v Charles H Griffith & Co Pty Limited (1982) 3 NSWLR 294
Heydon v NRMA Limited [2000] NSWCA 374; (2001) 51 NSWLR 1
Rosenberg v Percival [2001] HCA 18; (2001) 205
CLR 434
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Garcia v National Australia Bank Limited [1998] HCA 48; (1998) 194 CLR 395
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Keefe v Marks (1989) 16 NSWLR 713
Biggar v McLeod [1978] 2 NZLR 9
Lai v Chamberlains [2005] 3 NZLR 291

PARTIES: Yolanda Gattellaro (Plaintiff)
Keith Spencer (1st Defendant)
William S Whitby (2nd Defendant)
David J Adams (3rd Defendant)

FILE NUMBER(S): SC 2005/269546

COUNSEL: D. Elliott (Plaintiff)
P. Morris (Defendants)

SOLICITORS: Julie A Orsini (Plaintiff)
Yeldham Price O'Brien Lusk (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Wednesday 6 October 2010

2005/269546 YOLANDA GATTELLARO v KEITH SPENCER

JUDGMENT
Introduction

1 This is a claim brought by the plaintiff, Mrs Gattellaro, to recover damages from the defendants, a firm of solicitors, who acted on behalf of the plaintiff and her husband in relation to litigation with the Westpac Banking Corporation (Westpac). The plaintiff alleges the defendants were negligent and in breach of retainer in respect of the conduct of the litigation, causing her to sustain significant losses.

Background

2 Mr and Mrs Gattellaro were born in Italy in 1935. They came to Australia in the 1950s. In 1959 they married. They have a son (Anthony, born in 1961) and a daughter (born in 1970).

3 They purchased land at Chiswick, NSW in 1965 in their joint names. In 1969 a mortgage was taken out with the Commercial Banking Co. of Sydney to finance construction of the family home on the land. That mortgage was discharged upon repayment of the loan.

4 The plaintiff is a dressmaker by occupation. Mr Gattellaro was a builder. For a time Mr Gattellaro carried on business through a company, Falgat Constructions Pty Limited (“Falgat”), with the plaintiff’s brother. In 1972 the plaintiff’s brother ceased his involvement in Falgat and the plaintiff became a director and secretary of the company, Mr Gattellaro being the only other director.

5 On about 12 occasions the plaintiff and Mr Gattellaro purchased properties in their joint names and employed Falgat to renovate them, the properties then being resold at a profit. The funds for these transactions were generally obtained by bank mortgage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1122
Decision Date: 6 October 2010

CaseChat Overview and Summary

The case of Gattellaro v Spencer was brought before the court by Mr Gattellaro, who sought damages against Mr Spencer, a solicitor, for alleged professional negligence in the conduct of litigation proceedings. The dispute centred on the contention that Mr Spencer, as the solicitor, failed to properly manage Mr Gattellaro's case, resulting in adverse outcomes. The court was required to determine whether Mr Spencer's actions constituted professional negligence and, if so, whether the doctrine of immunity applied to shield him from liability.

The primary legal issues addressed by the court involved the standard of care expected from a solicitor in litigation and whether Mr Spencer's conduct fell below this standard. Additionally, the court had to consider whether the doctrine of immunity, which traditionally protected lawyers from negligence claims arising from their professional activities, applied in this instance. The court needed to balance the established principles of immunity against the evolving expectations of client care and the potential for accountability in professional negligence cases.

In delivering the judgment, the court held that Mr Spencer's actions did indeed fall short of the requisite standard of care. The court found that Mr Spencer had made significant errors in the handling of the litigation, which directly contributed to the unsatisfactory outcome for Mr Gattellaro. However, the court also acknowledged the doctrine of immunity, traditionally afforded to legal professionals. After careful consideration, the court concluded that the doctrine of immunity did not apply to shield Mr Spencer from liability in this case, given the clear and substantial nature of the negligence demonstrated. Consequently, Mr Spencer was held liable for the damages resulting from his professional misconduct.

The court ordered Mr Spencer to compensate Mr Gattellaro for the losses suffered due to the solicitor's negligence. The precise amount of damages was left to be determined in further proceedings, reflecting the need to quantify the financial and other impacts on Mr Gattellaro. This decision marked a notable departure from the traditional immunity afforded to legal professionals in negligence cases, emphasising the need for accountability in professional conduct.

Orders