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Liprini v McIntyre

Liprini v McIntyre

Case [2019] NSWSC 355 4 April 2019

Negligence

Breach of Duty

Causation

Professional Negligence

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Liprini v McIntyre [2019] NSWSC 355
Hearing dates: 13-16 August 2018
Date of orders: 04 April 2019
Decision date: 04 April 2019
Jurisdiction: Common Law
Before: Simpson AJ
Decision:
1. Statement of claim dismissed.
2. Judgment for the defendants.
3. Plaintiff to pay the defendants’ costs of the proceedings.

Catchwords:
NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5B – identification of risk of harm – professional negligence – solicitors – whether solicitors’ failure to commence proceedings before mediation exposed plaintiff to risk of harm – failure of plaintiff to identify risk of harm – no risk of harm – breach of duty – Civil Liability Act s 5D – causation

NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5B – risk of harm – precautions – professional negligence – solicitors – whether solicitors negligent in formulating orders following mediation – whether solicitors ought to have included an order stipulating time for payment and for interest to accrue in case of non-payment – whether such an order was a precaution a reasonable person in defendants’ position would have taken – whether failure to include such an order caused plaintiff’s economic loss – failure of plaintiff to establish breach in formulation of orders – failure of plaintiff to establish causation

NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5 O – professional negligence – McKenna v Hunter & New England Local Health District [2013] NSWCA 476 – no evidence of particular practice
NEGLIGENCE – advocates’ immunity – whether immunity attaches to advice on settlement of litigation – whether settlement of proceedings under Family Provision Act 1952 (NSW) requires judicial determination
Legislation Cited: Bankruptcy Act 1960
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Limitation Act 1969 (NSW)
Vexatious Proceedings Act 2008 (NSW),
Wills Probate and Administration Act 1898 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Bartlett v Coomber [2008] NSW CA 100
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Council of the City of Liverpool v Turano [2008] NSWCA 270
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Dobler v Halvorsen (2007) 70 NSWLR 151; [2007] NSWCA 335
Dr Allan Stephen Liprini v Kevin Liprini [No 2], unreported, 28 June 2010
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374
Hunter & New England Local Health District v McKenna (2004) 253 CLR 270; [2014] HCA 44
Kevin Liprini v Allan Steven Liprini, unreported, 10 July 2009
Liprini v Liprini [2008] NSWSC 423
Liprini v Liprini [2010] NSWCA 126
MacRae v Stephens [1996] Aust Torts Reports 81-405
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990]…

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 McIntyre

Details

AGLC: Liprini v McIntyre [2019] NSWSC 355
Case: [2019] NSWSC 355
Decision Date: 04 April 2019

CaseChat Overview and Summary

Liprini v McIntyre was a case heard in the Supreme Court of New South Wales. The plaintiff, Liprini, sought to hold the defendants, McIntyre and another, liable for professional negligence in their representation of him during family law proceedings. Specifically, Liprini alleged that the defendants' failure to commence proceedings before mediation exposed him to a risk of harm. He also claimed that the defendants were negligent in formulating the orders following mediation, arguing that they should have included a stipulation for time of payment and interest in the case of non-payment.

The court had to decide whether the defendants' failure to commence proceedings before mediation constituted a breach of duty, and if that failure exposed the plaintiff to a foreseeable risk of harm. The court also examined whether the defendants were negligent in formulating the orders following mediation by not including a stipulation for time of payment and interest in the case of non-payment, and if that failure caused the plaintiff's economic loss. Additionally, the court considered whether advocates' immunity applied to the defendants' advice on the settlement of the litigation.

The court found that the defendants' failure to commence proceedings before mediation did not expose the plaintiff to a foreseeable risk of harm, and therefore, there was no breach of duty. The court also held that the defendants were not negligent in formulating the orders following mediation, as they had not breached the standard of care owed to the plaintiff. The court further found that the plaintiff had failed to establish that the defendants' failure to include a stipulation for time of payment and interest in the case of non-payment caused his economic loss. Finally, the court held that advocates' immunity did not apply to the defendants' advice on the settlement of the litigation, as the advice was not given in the course of judicial or quasi-judicial proceedings.

Orders