PITTORINO -v- MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC)) & ORS [2001] WASC 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 245 | |
| Case No: | CIV:2012/1999 | 31 AUGUST 2001 | |
| Coram: | MASTER BREDMEYER | 7/09/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| A | |||
| PDF Version |
| Parties: | ELIZABETH GLORIA PITTORINO FERNE PETA MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC)) CATERINA PITTORINO VITTORIA PITTORINO UMBERTO PITTORINO |
Catchwords: | Legal practitioner Conflict of interest Solicitor who gives evidence should not also appear as instructing solicitor or counsel |
Legislation: | Inheritance (Family & Dependants Provision) Act 1972 |
Case References: | Secretary of State for India; ex parte Ezekeiel [1941] 2 All ER 546 Stone v Byron (1846) 4 Dowl & L 393 Yamaji & Anor v Westpac Banking Corporation & Ors (No 1) (1993) 115 ALR 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
estate of GUISEPPE PITTORINO (DEC)
and
estate of GUISEPPINA PITTORINO (DEC)
(also known as JOSEPHINE PITTORINO)
BETWEEN : ELIZABETH GLORIA PITTORINO
- Plaintiff
AND
FERNE PETA MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC))
First Defendant
CATERINA PITTORINO
Second Defendant
(Page 2)
- VITTORIA PITTORINO
Third Defendant
UMBERTO PITTORINO
Fourth Defendant
Catchwords:
Legal practitioner - Conflict of interest - Solicitor who gives evidence should not also appear as instructing solicitor or counsel
Legislation:
Inheritance (Family & Dependants Provision) Act 1972
Result:
Application allowed in part
Category: A
Representation:
Counsel:
Plaintiff : Mr M J Bateman
First Defendant : Mr L Tsaknis
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Batemans
First Defendant : Gibson Tovey Mills
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Secretary of State for India; ex parte Ezekiel [1941] 2 All ER 546
Case(s) also cited:
Stone v Byron (1846) 4 Dowl & L 393
Yamaji & Anor v Westpac Banking Corporation & Ors (No 1) (1993) 115 ALR 235
(Page 4)
1 MASTER BREDMEYER: This is an Inheritance (Family & Dependants Provision) Act 1972 action. The parties are the three daughters and son of the late Mr and Mrs Pittorino and the executrix, of both their wills, Mrs Meynert, the first defendant. After a mediation conducted by a Registrar of this Court on 25 September 2000 a settlement was reached and a settlement agreement signed. The plaintiff at that time was represented by a solicitor, Elizabeth Jane Louise O'Sullivan. The plaintiff has now terminated that solicitor and is represented…
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- Case
- [2001] WASC 245
- Decision Date
CaseChat Overview and Summary
The court considered the principle that a lawyer should not act as both witness and advocate in the same case, as it may lead to a conflict of interest and a temptation to tailor evidence to support the client. While the executrix was generally considered a neutral party, the court found that the conflict of interest was not alleviated by the executrix filing a chamber summons seeking to uphold the mediation settlement. The court ruled that either Mrs Gibson's affidavit should be removed from the file or the executrix's right to be represented by a lawyer at the hearing should be removed. The court left it to the executrix to choose which option to pursue.
The court ultimately decided that the conflict of interest could be resolved by either removing Mrs Gibson's affidavit from the file or preventing the executrix from being represented by a lawyer at the hearing before the Judge on 25 and 26 September. The court also noted that if the plaintiff's application to set aside the agreement was rejected, it would be appropriate for the Judge to give an order in terms of the executrix's application to enforce the compromise. The court further noted that it would hear the parties on costs.
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