Picos v Perez Varela Lawyers - [2018] FCCA 646

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICOS v PEREZ VARELA LAWYERS & ANOR

[2018] FCCA 646

Catchwords:
INDUSTRIAL LAW – Interlocutory application for continuation of employment – whether there is a prima facie case – where the balance of convenience lies – no exceptional or special circumstances to warrant continuation of relationship – application in a case dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.566, 570

Cases cited:
Byrne & Australian Airlines (1995) 185 CLR 410
Quinn v Overland [2010] FCA 799

Applicant:

CONNIE LOUISE PICOS

First Respondent:

PEREZ VARELA LAWYERS

Second Respondent:

JOSE APOLINAR PEREZ

File Number:

SYG 602 of 2018

Judgment of:

Judge Street

Hearing date:

15 March 2018

Date of Last Submission:

15 March 2018

Delivered at:

Sydney

Delivered on:

15 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr R Hassall

Sparke Helmore

ORDERS

The affidavit filed on behalf of the first respondent dated 15 March 2018 is to be supressed and marked as a confidential affidavit not available for public access.
Direct that there be filed a copy of the affidavit without annexure A, it does not need to be resworn, which will be on the public record.
Annexure A to the affidavit of Jose Perez filed on 15 March 2018, which has been read is supressed and remains the subject of confidentially order 1 above.
The Court reserves any question of costs under section 570.
The application in a case is dismissed.
The application for a stay of the order is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 602 of 2018

CONNIE LOUISE PICOS

Applicant

And

PEREZ VARELA LAWYERS

First Respondent

JOSE APOLINAR PEREZ

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of an interlocutory application where the applicant is seeking a continuation of her employment. The applicant is a solicitor. The applicant put on an affidavit in support of the application for the interlocutory injunction. The affidavit was less than candid. The affidavit failed to disclose that the applicant was the subject of two conditions on her practicing certificate in terms of the details of those conditions. Reference was made to the topic, but the conditions were not disclosed.
The conditions are ones in respect of which the Court has made a confidentiality order. The conditions were clearly relevant to the nature of the dispute in the present case. There was a lack of candour by the applicant not to fully disclose those conditions. Further, the circumstances of the present case are one where there was a dismissal of the applicant for grounds which include dishonesty. Nowhere in the applicant’s affidavit did the applicant properly address the allegations giving rise to her dismissal. In particular, the applicant did not address the issues of dishonesty. This also reflects a lack of candour.
The applicant has informed the Court that she wanted alternatives to her employment with the respondents and she…

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: [2018] FCCA 646
Decision Date: 15 March 2018

CaseChat Overview and Summary

In the matter of *Picos v Perez Varela Lawyers*, the Supreme Court of New South Wales considered a dispute between a former client, Mr Picos, and his former solicitors, Perez Varela Lawyers. Mr Picos sought to recover damages for alleged negligence and breach of contract arising from the conduct of his former solicitors in relation to a property transaction.

The central legal issues before the Court were whether the solicitors had breached their duty of care to Mr Picos, and if so, whether that breach had caused Mr Picos loss. Specifically, the Court had to determine whether the advice provided by the solicitors regarding the sale of Mr Picos's property was negligent, and whether the solicitors had failed to adequately advise Mr Picos on the implications of certain contractual terms.

Judge Street found that while the solicitors had a duty to act with reasonable care and skill, the evidence did not establish that their conduct fell below the standard expected of a reasonably competent solicitor in the circumstances. The Court reasoned that the advice given was consistent with the information available at the time and that Mr Picos had ultimately made his own informed decisions regarding the transaction. Therefore, no breach of duty was established, and consequently, no damages were recoverable.

Orders