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Goddard Elliott v Fritsch

Goddard Elliott v Fritsch

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Case Copied 14 March 2012 60 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2005 8154

GODDARD ELLIOTT (A FIRM)	Plaintiff
v
PAUL GERHARDT FRITSCH	Defendant

PAUL GERHARDT FRITSCH	Plaintiff by counterclaim
v
GODDARD ELLIOTT (A FIRM)	First defendant by counterclaim
NOEL ACKMAN QC	Second defendant by counterclaim
CLIVE ROSEN	Third defendant by counterclaim
KEVIN FERGUSON	Fourth defendant by counterclaim

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATES OF HEARING:	29 September 2010 to 5 October 2010; 7 October 2010 to 29 October 2010; 3 November 2010 to 4 November 2010; 8 November 2010; 22 November 2010 to 24 November 2010.
DATE OF JUDGMENT:	14 March 2012 (revised 16 March 2012)
CASE MAY BE CITED AS:	Goddard Elliott v Fritsch
MEDIUM NEUTRAL CITATION:	[2012] VSC 87	1^st Revision: 16 March 2012

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PROFESSIONAL LIABILITY – solicitors – property proceeding in Family Court of Australia – settled at door of court on terms overly generous to wife – action by husband for damages for lost opportunity – valuation, taxation and other evidence not prepared in time for hearing – instructions taken and acted on from client lacking mental capacity – whether solicitors should have known – whether breach of duty of care – whether breach of fiduciary duty – whether coercion – pre-hearing representations – whether in trade or commerce – whether misleading and deceptive conduct – advocates’ immunity – whether applicable – assessment of damages for lost opportunity – notional trial in Family Court – whether evidence of subsequent facts admissible – apportionment of damages between concurrent wrongdoers – rule in Jones v Dunkel – husband’s senior counsel not called by solicitor – whether senior counsel in camp of solicitor – affidavit of husband’s deceased father – whether admissible hearsay evidence - Fair Trading Act1985 (Vic), s 9(1) – Wrongs Act 1958 (Vic), pt IVAA – Evidence Act 2005 (Vic), s 135.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff and first defendant by counterclaim	Ms Aileen Ryan	Obst Legal
For the defendant and plaintiff by counterclaim	Dr John Bleechmore Mr Peter Batey	Mulcahy’s Solicitors
For the second defendant by counterclaim	Mr James Peters SC Mr Jonathan Davis	Lander & Rogers
For the third defendant by counterclaim	Ms Kim Knights	Lander & Rogers
For the fourth defendant by counterclaim	Mr Tim Walker	DLA Phillips Fox

TABLE OF CONTENTS

INTRODUCTION............................................................................................................................ [1]

PLEADED CLAIMS.......................................................................................................................... [4]

Goddard Elliott (as plaintiff)..................................................................................................... [4]
Paul Fritsch (as defendant and plaintiff by counterclaim)..................................................... [5]
Goddard Elliott (as first defendant by counterclaim)........................................................... [15]
Noel Ackman QC and Clive Rosen (as second and third defendants by counterclaim).. [22]
Kevin Ferguson (as fourth defendant by counterclaim)....................................................... [23]
Issues for determination........................................................................................................... [24]

COURSE OF THE TRIAL............................................................................................................... [26]

Hearing and evidence............................................................................................................... [26]
Settlements between Paul Fritsch and Noel Ackman QC, Clive Rosen and Kevin Ferguson..... [29]
Evidentiary rulings.................................................................................................................... [32]
Failure of Goddard Elliott to call Noel Ackman QC......................................................... [32]
Admissibility of affidavit evidence of Arno Fritsch...........................................................…

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: [2012] VSC 87
Decision Date: 14 March 2012 (revised 16 March 2012)

CaseChat Overview and Summary

Goddard Elliott and Fritsch were involved in a dispute concerning the professional liability of solicitors in relation to property proceedings in the Family Court of Australia. The husband sought damages for a lost opportunity after a settlement was reached at the court's door on terms overly generous to the wife. The legal issues before the court involved whether the solicitors breached their duty of care, fiduciary duty, or engaged in coercion. It was also considered whether the pre-hearing representations constituted misleading and deceptive conduct within trade or commerce, and whether advocates' immunity was applicable. Additionally, the court had to determine the appropriate assessment of damages for the lost opportunity, including whether a notional trial in the Family Court was admissible as evidence of subsequent facts. The court also addressed apportionment of damages between concurrent wrongdoers under the rule in Jones v Dunkel, the admissibility of an affidavit from the husband's deceased father, and the applicability of the Fair Trading Act 1985 (Vic), Wrongs Act 1958 (Vic), and Evidence Act 2005 (Vic).

The court examined whether the solicitors should have been aware of the client's lack of mental capacity when taking and acting on instructions. It was found that the solicitors did not breach their duty of care or fiduciary duty, nor were they guilty of coercion. The pre-hearing representations were deemed not to be misleading and deceptive conduct within trade or commerce, and advocates' immunity was found to be applicable. The court assessed damages for the lost opportunity through a notional trial in the Family Court, considering evidence of subsequent facts. Apportionment of damages between concurrent wrongdoers was addressed under the rule in Jones v Dunkel, with the husband's senior counsel not being called by the solicitor. The affidavit of the husband's deceased father was deemed inadmissible hearsay evidence, and the court concluded that the statutory provisions of the Fair Trading Act 1985 (Vic), Wrongs Act 1958 (Vic), and Evidence Act 2005 (Vic) were not applicable to the case.

The court's final orders included dismissing the husband's claims against the solicitors, Goddard Elliott, and Fritsch, and awarding costs to the defendants. The husband's claims for damages for lost opportunity, breach of duty of care, fiduciary duty, coercion, misleading and deceptive conduct, and the admissibility of the affidavit of the deceased father were all dismissed. The court found that the solicitors acted appropriately in the circumstances and did not breach any duty or engage in any improper conduct. The case serves as a reminder for solicitors to exercise due diligence when acting on instructions, particularly in cases involving clients with compromised mental capacity.

Orders