PITTORINO -v- MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC)) & ORS [2001] WASC 245

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 245
Case No:	CIV:2012/1999	Heard:	31 AUGUST 2001
Coram:	MASTER BREDMEYER	Delivered:	7/09/01
No of pages:	7	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	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

CITATION : PITTORINO -v- MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC)) & ORS [2001] WASC 245 CORAM : MASTER BREDMEYER HEARD : 31 AUGUST 2001 DELIVERED : 7 SEPTEMBER 2001 FILE NO/S : CIV 2012 of 1999 MATTER : Inheritance (Family & Dependants Provision) Act 1972

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…

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: [2001] WASC 245
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia presided over the case of Pittorino v Meynert & Ors, which involved a dispute regarding the estate of Giuseppe Pittorino and Guiseppina Pittorino, deceased. The case focused on the application by Elizabeth Gloria Pittorino to set aside a settlement agreement reached during a mediation conference, as well as the application by Ferne Peta Meynert, as executrix of the wills, to enforce the compromise. The court was required to determine whether the executrix's solicitors could act as both witnesses and advocates in the proceedings.

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.

Orders