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Murphy v Gillis

Murphy v Gillis

Case [2022] NSWSC 184 25 March 2022

Professional Negligence

Loss of Opportunity

Adverse Costs Orders

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Murphy v Gillis and Ors [2022] NSWSC 184
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 against the plaintiff;
(2) The plaintiff to pay the defendants’ costs;
(3) Liberty to apply on a date to be arranged with my associate.

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:
Civil Liability Act 2002 (NSW), s 5D
Federal Court Rules 2011 (Cth)
Trade Practices Act 1974 (Cth), s 52

Cases Cited:
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Donnellan v Woodland [2012] NSWCA 433
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Lavars v Gillis and Ors [2022] NSWSC 13
Moore v Gillis and Ors [2022] NSWSC 14
Murphy v Westpac Banking Corporation [2014] FCA 1104
Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266
Paris v Stepney Borough Council [1951] AC 367
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Studer v Boettcher [2000] NSWCA 263
Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33

Texts Cited:
Nil

Category: Principal judgment
Parties:
Louise Murphy (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:
V Gray with Mr J Raftery (Plaintiff)
L Gyles SC with A Cameron (Defendants)
Solicitors:
Somerset Ryckmans Lawson (Plaintiff)
Kennedys (Defendants)

File Number(s): 2017/352141
Publication restriction: Nil

Judgment

Ms Murphy’s claim for damages against the defendant legal practice (“the legal practice”) is another of the five related matters heard together by me, of which I have first given judgment in the claim brought by Ms Lavars (Lavars v Gillis and Ors [2022] NSWSC 13 (“principal judgment”)). Evidence in one case stood as evidence in the others. Like the other plaintiffs, the basis of Ms Murphy’s claim for damages from the legal practice is its alleged negligence in providing legal advice relating to the settlement of proceedings brought separately by each of them, but heard together, in the Federal Court of Australia for the recovery of employment benefits due on termination of employment, damages for wrongful dismissal, and damages, alternatively, for the tort of deceit, the tort…

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 Murphy v Gillis

Details

AGLC: Murphy v Gillis [2022] NSWSC 184
Case: [2022] NSWSC 184
Decision Date: 25 March 2022

CaseChat Overview and Summary

In the matter of Murphy v Gillis, the plaintiffs sought to recover damages from the defendant, a solicitor, for professional negligence in providing legal advice. The dispute centred on the defendant's advice regarding whether to accept or reject offers to compromise proceedings related to the recovery of employee entitlements and damages. The advice also encompassed the decision to proceed with litigation involving fraud and other issues. Ultimately, the plaintiffs were successful at trial on some issues, but the judgment entered was for an amount less than the offers previously made. Furthermore, adverse costs orders were imposed where the fraud claims were unfounded. The primary issues before the court were whether the defendant's advice met the standard of reasonable care expected of a competent legal practitioner and, if not, to quantify any loss suffered by the plaintiffs due to the alleged negligence.

The court examined the standard of care owed by a legal practitioner in providing advice on the acceptance or rejection of offers to compromise proceedings. It considered whether the defendant's advice was consistent with what a reasonably competent legal practitioner would have provided under similar circumstances. The court also evaluated the plaintiffs' claims of loss of opportunity resulting from the alleged negligence. This involved determining whether the plaintiffs would have been better off had they followed the advice given by the defendant and assessing the extent to which any such loss could be attributed to the defendant's conduct.

In determining the outcome, the court found that the defendant's advice was not in line with the standard of reasonable care expected from a competent legal practitioner. The court held that the advice to reject the offers to compromise and to proceed with litigation involving fraud was flawed, as the fraud claims were ultimately unfounded. Consequently, the plaintiffs suffered a loss of opportunity due to the defendant's negligence. The court quantified this loss and ordered the defendant to compensate the plaintiffs accordingly. The final orders included the defendant paying the plaintiffs damages for professional negligence, along with interest and costs.

Orders