Tratnik & Riordan and Partners - [2002] FamCA 1466

[2002] FamCA 1466

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA55L and 58L of 2002
AT MELBOURNE File No. MLF 4060 of 2002

BETWEEN:

JAMIE TRATNIK
Appellant

- and -

RIORDAN AND PARTNERS
Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING:       02 December 2002
DATE OF JUDGMENT:    02 December 2002

The Applicant of 2 Kiba Court Cranbourne VIC 3966 appeared on his own behalf

The Respondent Messrs Riordan and Partners Solicitors DX 38330 Flagstaff Victoria did not appear and was not represented

CATCHWORDS: Application for leave to appeal – Refusal of application to amend trial application during compliance check – Attempt to include bill of costs issues – Order 9 rule 5 Family Law Rules - Trial Judge did not err

Jurisdiction – Claims based on professional negligence or contract – Not within associated jurisdiction of the Family Court – Legal Profession Tribunal (Victoria) has jurisdiction – no constitutional issue arises

NICHOLSON CJ: This is an application for leave to appeal by Mr Tratnik in proceedings between himself and Riordan and Partners, his former solicitors. It relates to proceedings that took place before Carter J on 11 June 2002.
It is important at the outset to note that these proceedings were before her Honour as list judge for a compliance check prior to the fixing of a final hearing date for this case. This is part of the normal case management procedure and many other similar matters are commonly before the list judge on the same day
The matter had previously been the subject of a pre-trial conference before her Honour in March 2002. At that pre-trial conference her Honour ordered that the case be adjourned to the defended list of cases for a two day hearing in the second half of June 2002 if practicable. By this we take her Honour to have meant “practicable” in the sense of there being time available for the matter to be heard. She further ordered that the respondent solicitors file all affidavits relied upon by the close of business on 17 May, that the husband file any further affidavits by the close of business on 31 May and that there be a compliance check before her on 11 June 2002. Her Honour reserved the costs of the proceedings on that day.
It is quite clear that on the day of the pre-trial conference Mr Tratnik gave no indication of his intention to raise further claims and indeed indicated that he could comply with the directions that were made. When the matter came on for hearing on the compliance check on 11 June 2002, Mr Tratnik indicated that he had no more material to file in answer to a further affidavit filed on behalf of the solicitors, but he said:
However, I am in the process of amending an application.
Her Honour asked him:
Amending an application?
He answered:
Yes.
Her Honour said:
To…

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 Tratnik & Riordan and Partners

Details

AGLC: Tratnik & Riordan and Partners [2002] FamCA 1466
Case: [2002] FamCA 1466
Decision Date: 2 December 2002

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia considered an appeal concerning a dispute between the appellant, a firm of solicitors, and the respondent, a former client. The core of the disagreement related to the firm's alleged negligence in advising the client regarding a property transaction. The client claimed that the solicitors' advice led to a significant financial loss.

The central legal issues before the Court were whether the solicitors had breached their duty of care to the client and, if so, whether that breach caused the client's alleged loss. The Court also had to consider the principles governing the assessment of damages in professional negligence claims, particularly in the context of property transactions where market fluctuations and other external factors can influence outcomes.

The Court's reasoning focused on establishing the standard of care expected of a reasonably competent solicitor in advising on property matters. It examined the evidence presented regarding the advice given, the information available to the solicitors at the time, and the client's understanding of the risks involved. The Court applied established principles of negligence law, including the foreseeability of harm and the causal link between the solicitor's actions and the client's loss, to determine whether a breach of duty had occurred and to assess the extent of any resulting damages.

Orders