Medium Neutral Citation: Liprini v Hale [2020] NSWCA 130
Hearing dates: 6 March 2020
Date of orders: 3 July 2020
Decision date: 03 July 2020
Before: Macfarlan JA at [1];
McCallum JA at [116];
Emmett AJA at [143]
Decision:
Appeal dismissed with costs.

Catchwords:
NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm
NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party
NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum
NEGLIGENCE – defence of proportionate liability – CivilLiability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer
NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Bartlett v Coomber [2008] NSWCA 100
Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135
McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Trajkovski v Simpson [2019] NSWCA 52

Category: Principal judgment
Parties: Kevin James Liprini (Appellant)
Sandra Neryl Hale (First Respondent)
John Eric McIntyre (Second Respondent)
Jeffrey Edmond O’Brien (Third Respondent)
Danny Kenneth Simpson (Fourth Respondent)
Michael John Sommerville (Fifth Respondent)
Representation:
Counsel:
D A Lloyd / L Beange (Appellant)
A Zahra (Respondents)
Solicitors:
ITC Law Pty Ltd (Appellant)
Sparke Helmore Lawyers (Respondents)

File Number(s): 2019/129821
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 355

Date of Decision:

04 April 2019

Before:

Simpson AJ

File Number(s):

2013/355003

HEADNOTE

[This headnote is not to be read as…

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.

Continue reading Liprini v Hale

Details

AGLC: Liprini v Hale [2020] NSWCA 130
Case: [2020] NSWCA 130
Decision Date: 03 July 2020

CaseChat Overview and Summary

The appellant, Ms. Liprini, brought proceedings against the respondent solicitors, Hale, alleging negligence in their conduct of her claim under the *Family Provision Act 1982* (NSW). Ms. Liprini contended that the solicitors' failure to commence proceedings for a Family Provision Act claim against an estate prior to a mediation constituted a breach of their duty of care, arguing that there was a relevant risk of harm arising from this failure. The dispute ultimately centred on whether the solicitors' actions or omissions led to Ms. Liprini suffering a loss.

The Court of Appeal was required to determine several key legal issues. These included whether the solicitors breached their duty of care by not commencing the Family Provision Act proceedings before mediation, and if so, whether this breach caused Ms. Liprini to suffer loss. Specifically, the court had to consider whether a readily enforceable settlement was reached at mediation and if Ms. Liprini had a realistic chance of recovering the full settlement sum but for the alleged negligence, taking into account the actions of a third party. The court also considered the defence of proportionate liability under section 35 of the *Civil Liability Act 2002* (NSW), and whether advocate's immunity applied to the solicitors' conduct, particularly in relation to the resolution of proceedings by court decision and the exercise of independent discretion by a registrar in entering consent orders.

The Court of Appeal dismissed the appeal. The reasoning of the court, though not detailed in the provided text, would have addressed the elements of negligence, including duty, breach, causation, and damages, in the context of the specific facts. The court likely found that either no breach occurred, or that the alleged breach did not cause the loss claimed, or that the solicitors were protected by advocate's immunity. The defence of proportionate liability may also have been considered and found to be inapplicable or unsuccessful.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Liprini v Hale [2020] NSWCA 130

Most Recent Citation

High Court Bulletin [2020] HCAB 9

Cases citing this decision · 5 of 5 shown

Daley v Donaldson
[2022] NSWCA 96 Para 69

…cases, including by way of recent examples Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [4] and Liprini v Hale (2020) 103 NSWLR 275; [2020] NSWCA 130 at [112]. True it is that a court will, in the exercise of its discretion, give a measure of deference to a compromise reached between parties to lit…
KD Talent Management Pty. Ltd. trading as MD College v Next Interiors Pty Ltd
[2021] NSWDC 644 Para 62

…ation because its definition relevantly refers only to the person being someone who “caused” the plaintiff’s loss or damage: Liprini v Hale [2020] NSWCA 130 at [106]. On the facts the basis of these proceedings, Mr Keller acknowledged that Brad’s On Tap was a concurrent wrongdoer, and that the only contentious issu…
GC Group Company Pty Ltd v Bingo Holdings Pty Ltd (No 3)
[2021] NSWSC 252 Para 55

…CA 52 at [195] (Brereton JA; Basten JA and Sackville AJA agreeing that the relevant party was not a concurrent wrongdoer); followed in Liprini v Hale [2020] NSWCA 130 at [105] (Macfarlan JA albeit in dissent); cf Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450 at [348] (Schmidt AJ whose attention was evide…
High Court Bulletin
[2020] HCAB 9

…[2020] NSWCA 130 Application dismissed with costs…
GC Group Company Pty Ltd v Bingo Holdings Pty Ltd (No 2)
[2020] NSWSC 1360 Para 33

…CA 52 at [195] (Brereton JA; Basten JA and Sackville AJA agreeing that the relevant party was not a concurrent wrongdoer); followed in Liprini v Hale [2020] NSWCA 130 at [105] (Macfarlan JA albeit in dissent); cf Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450 at [348] (Schmidt AJ whose attention was evide…

View all 5 citing cases →

Cases cited in this decision · 14 of 14 shown

Liprini v McIntyre
[2019] NSWSC 355 Para 6

…dly, on the basis that the appellant did not in any event establish that the loss he suffered was caused by the breach of duty ( Liprini v McIntyre [2019] NSWSC 355). As well, her Honour rejected the appellant’s alternative case on the additional basis that RHS was protected by the doctrine of advocate’s immunity.…
Trajkovski v Simpson
[2019] NSWCA 52 Para 105

…the appellant having a cause of action against him, Mr Lawson cannot be characterised as a “concurrent wrongdoer” ( Trajkovski v Simpson [2019] NSWCA 52 at [195]).…
Coles Supermarkets Australia Pty Ltd v Bridge
[2018] NSWCA 183

…ed that could have been avoided by the commencement of proceedings prior to the mediation. Accepting, as I must, having regard to the decision in [ Coles Supermarkets Australia Pty Ltd v Bridge (2018) NSWCA 183], that some retrospectivity is permitted in the identification of the risk of harm, I am nevertheless of the view that that risk must be show…
Mal Owen Consulting Pty Ltd v Ashcroft
[2018] NSWCA 135 Para 78

…This Court’s decision in Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 and the High Court’s decision in Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 refer to the recovery of damages for loss of a commercial opportunity in circumstances where obtaining the benefit of the oppor…
Badenach v Calvert
[2016] HCA 18 Para 78

…Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 and the High Court’s decision in Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 refer to the recovery of damages for loss of a commercial opportunity in circumstances where obtaining the benefit of the opportunity had been dependent…
Attwells v Jackson Lalic Lawyers Pty Ltd
[2016] HCA 16

…ivil Procedure Rules 2005 (NSW) Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Bartlett v Coomber [2008] NSWCA 100 Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 24…
Perisher Blue Pty Ltd v Nair-Smith
[2015] NSWCA 90 Para 118

…trict (2013) Aust Torts Reports 82-158; [2013] NSWCA 476 (adopted by the Court of Appeal in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]) where, in reference to the same passage in Dederer , his Honour observed at [266] that “Gummow J was careful to include the general causal mecha…
McKenna v Hunter & New England Local Health District
[2013] NSWCA 476 Para 118

…ferred to the judgment of Garling J (albeit in dissent) in McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476 (adopted by the Court of Appeal in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]) where, in reference to the same passage…
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd
[2013] HCA 10 Para 106

…endant is liable to it – for example the fraudster in Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10.…
Liprini v Liprini
[2010] FMCA 687 Para 98

…tate. As a bankruptcy judgment delivered in 2010 evidenced, Dr Liprini became deeply dissatisfied with the mediation settlement ( Liprini v Liprini [2010] FMCA 687). Exactly when this occurred is not clear but it appears to have been very soon after the mediation. His conduct indicated that immediately, or almost…
Adeels Palace Pty Ltd v Moubarak
[2009] HCA 48 Para 62

…t that risk. Despite its heading (“Duty of Care”), s 5B is concerned with breach of duty ( Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]).…
Bartlett v Coomber
[2008] NSWCA 100 Para 59

…rar, in the making of the orders” (Judgment [191]). Her Honour referred in this respect to the decision of this Court in Bartlett v Coomber [2008] NSWCA 100 holding that the Court is required to be satisfied of the appropriateness of making FPA orders, notwithstanding that the parties may be agreed that they should…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 118

…ain her approach to that inquiry, her Honour referred to the judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60] and concluded that risk is to be found by identifying the “true source of potential injury”. She also referred to the judgment of Garling J (…
Sellars v Adelaide Petroleum NL
[1994] HCA 4 Para 92

…aintiff’s succeeding had the plaintiff been given the chance which the contract promised” ( Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 349).…

Legislation cited in this decision · 8

Civil Liability Act 2002 (TAS)
1 mention (from Para 6)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 34)
Corporations Act 2001 (Cth)
1 mention
Family Provision Act 1982 (NSW)
1 mention (from Para 1)
Native Title Act 1993 (Cth)
1 mention
Patents Act 1900 (Cth)
1 mention
Probate and Administration Act 1898 (NSW)
1 mention (from Para 82)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 41)

Medium Neutral Citation:	Liprini v Hale [2020] NSWCA 130
Hearing dates:	6 March 2020
Date of orders:	3 July 2020
Decision date:	03 July 2020
Before:	Macfarlan JA at [1]; McCallum JA at [116]; Emmett AJA at [143]
Decision:	Appeal dismissed with costs.
Catchwords:	NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum NEGLIGENCE – defence of proportionate liability – CivilLiability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Bartlett v Coomber [2008] NSWCA 100 Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Trajkovski v Simpson [2019] NSWCA 52
Category:	Principal judgment
Parties:	Kevin James Liprini (Appellant) Sandra Neryl Hale (First Respondent) John Eric McIntyre (Second Respondent) Jeffrey Edmond O’Brien (Third Respondent) Danny Kenneth Simpson (Fourth Respondent) Michael John Sommerville (Fifth Respondent)
Representation:	Counsel: D A Lloyd / L Beange (Appellant) A Zahra (Respondents) Solicitors: ITC Law Pty Ltd (Appellant) Sparke Helmore Lawyers (Respondents)
File Number(s):	2019/129821
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 355 Date of Decision: 04 April 2019 Before: Simpson AJ File Number(s): 2013/355003