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Moore v Gillis

Moore v Gillis

Case [2022] NSWSC 14 25 March 2022

Professional Negligence

Duty of Care

Compensatory Damages

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Moore v Gillis and Ors [2022] NSWSC 14
Hearing dates: 5, 6, 7, 8, 9, 13, 14, 16, 19, 20, 21, 22 August 2019; 11, 12, 13, 14, 15 November 2019; 23 May 2020 (further written submissions)
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for each defendant as against the plaintiff.
(2) The plaintiff to pay the defendants costs.
(3) Liberty to apply on short notice.

Catchwords:
TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

Legislation Cited:
Australian Consumer Law (NSW), ss 4(1), 18, 236
Civil Liability Act 2002 (NSW), ss 5C, 5D, 5R
Civil Procedure Act 2005 (NSW), s 100
Competition and Consumer Act 2010 (Cth), Schedule 2
Fair Trading Act 1987 (NSW), ss 27, 28, 32
Federal Court Rules 2011 (Cth) rr 25.01, 25.14
Limitation Act 1969 (NSW) s 14

Cases Cited:
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209; [1999] HCA 64
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52
Heydon v NRMA Limited (2000) 51 NSWLR 1; [2000] NSWCA 374
Kendirjian v Lepore & Anor (2017) 259 CLR 275; [2017] HCA 13
Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343
Lavars v Gillis and Ors [2022] NSWSC 13
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Murphy & Ors v Westpac Banking Corporation [2014] FCA 1104
Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Travel Compensation Fund v Robert Tambree (t/as R Tambree & Assocs) (2005) 224 CLR 627; [2005] HCA 69
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
Nil

Category: Principal judgment
Parties: Stuart Moore (Plaintiff)
Michael Joseph Gillis (First Defendant)
Gana Holdings Pty Ltd (Second Defendant)
Gana Holdings Pty Ltd as trustee for Gana Holdings Trust trading as Gillis Delaney Lawyers (Third Defendant)
Representation:
Counsel:
V Gray with Mr J Raftery (Plaintiff)
L Gyles SC with A Cameron (Defendants)
Solicitors:
Somerset Ryckmans Lawson (Plaintiff)
Kennedys (Defendants)

File Number(s): 2017/00170694
Publication restriction: Nil

decision

Mr Moore’s claim for damages against the defendant legal practice (“the legal practice”) is one of the five…

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 Moore v Gillis

Details

AGLC: Moore v Gillis [2022] NSWSC 14
Case: [2022] NSWSC 14
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of Moore v Gillis involves a dispute between the plaintiffs, who are employees, and the defendant, their former lawyer. The employees claim professional negligence against the lawyer for advice provided in relation to the acceptance or rejection of offers to compromise proceedings for the recovery of their employee entitlements and damages. The advice in question also pertained to bringing proceedings involving fraud and related issues. Ultimately, the employees were successful at trial on limited issues, but the judgment entered was less than the offers made. Adverse costs orders were made, and the claims of fraud were ultimately found to be unfounded. The central legal issues before the court were whether the advice given by the defendant met the standard of reasonable care expected of a professional lawyer and the quantum of the loss suffered by the plaintiffs due to the alleged professional negligence, specifically the loss of opportunity.

The court examined whether the advice given by the defendant to the plaintiffs regarding the compromise offers and the fraud claims was in line with the standard of reasonable care expected of a professional lawyer. This required the court to consider the circumstances of the case, including the information available to the defendant at the time, and assess whether a reasonably competent lawyer would have acted in the same manner. Furthermore, the court had to determine the extent of the loss suffered by the plaintiffs due to the alleged professional negligence. This included assessing the loss of opportunity, which was a significant factor in the plaintiffs' claims. The court needed to evaluate the potential outcomes if the advice had been different and compare them to the actual outcomes achieved by the plaintiffs.

The court found that the advice given by the defendant did not meet the standard of reasonable care expected of a professional lawyer. The court determined that a reasonably competent lawyer, armed with the information available at the time, would have acted differently in advising the plaintiffs. This conclusion was based on the court's assessment of the available evidence and the legal standards applicable to the provision of professional legal advice. Regarding the quantum of loss, the court found that the plaintiffs had indeed suffered a loss of opportunity due to the alleged professional negligence. The court quantified this loss and determined the amount of damages to be awarded to the plaintiffs. The court also noted that the adverse costs orders and the unfounded fraud claims contributed to the overall loss suffered by the plaintiffs.

The final orders of the court included a determination that the defendant was liable for professional negligence and an award of damages to the plaintiffs for the loss of opportunity. The court specified the amount of damages to be paid by the defendant to the plaintiffs, reflecting the loss suffered due to the alleged professional negligence. The court also considered the adverse costs orders and the unfounded fraud claims in making its determination. Overall, the court's decision provided clarity on the standard of reasonable care expected in providing professional legal advice and the consequences of failing to meet that standard.

Orders