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Vakras v Cripps

Vakras v Cripps

Case [2016] FCCA 20 27 January 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

VAKRAS v CRIPPS & ANOR

[2016] FCCA 20

Catchwords:
HUMAN RIGHTS – Application for remedies for alleged contravention of the Racial Discrimination Act 1975 – applicant seeking to add claims under the Copyright Act 1968 and the Australian Consumer Law – respondents seeking summarily dismissal of claims and also asserting Anshun estoppel – applicant’s case having no reasonable prospects of success – Anshun estoppel clearly established – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999, s.17A

Australian Human Rights Commission Act 1986, s.46PO(3)
Federal Circuit Court Rules 2001, rr.13.10, 41.03
Racial Discrimination Act 1975, ss.9, 13
Copyright Act 1968, ss.195AK, 195AQ, 195AS, 195AZA, 195AZC, 203
Copyright Amendment (Moral Rights) Act 2000
Human Rights Act 2004, s.46PO
Evidence Act 1995, s.91

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Paramasivam v Grant [2001] FCA 882
Perez v Fernandez [2012] FMCA 2
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372
Rana v Deakin University [2012] FMCA 575
Blair v Curran (1939) 62 CLR 464
Gibbs v Kinna [1999] 2 VR 19

Applicant:

DEMETRIOS VAKRAS

First Respondent:

ROBERT RAYMOND CRIPPS

Second Respondent:

REDLEG MUSEUM SERVICES PTY LTD (ACN 105 986 829)

File Number:

MLG 2122 of 2014

Judgment of:

Judge Burchardt

Hearing date:

9 September 2015

Date of Last Submission:

10 December 2015

Delivered at:

Melbourne

Delivered on:

27 January 2016

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr B. Low

Solicitors for the Respondents:

Efron & Associates

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2122 of 2014

DEMETRIOS VAKRAS

Applicant

And

ROBERT RAYMOND CRIPPS

First Respondent

REDLEG MUSEUM SERVICES PTY LTD (ACN 105 986 829)

Second Respondent

REASONS FOR JUDGMENT

Introductory

In this matter, the respondents seek the summary dismissal of the applicant's case. Although the submissions put by the respondents were not put with any great clarity or precision, in substance what the respondents seek is that the Court dismiss the application, either pursuant to the Court's powers under s.17A of the Federal Circuit Court of Australia Act 1999 or, alternatively, under the doctrine of Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
Although the parties have ventilated a number of other matters, with which I shall attempt to deal, and although my own thinking is not as clear as I would wish, I have at least come to the firm view that the application should be dismissed for reasons which I will endeavour to set out as follows.

The Materials Filed in the Proceeding

Because of difficulties arising out of the way in which the parties have presented their case, it was not at first apparent that the various antecedent requirements arising out of s.46PO of the Australian Human Rights Commission Act 1986 (“HRC Act”) and this Court's Rules (“the Federal Circuit Court Rules

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 Vakras v Cripps

Details

AGLC: Vakras v Cripps [2016] FCCA 20
Case: [2016] FCCA 20
Decision Date: 27 January 2016

CaseChat Overview and Summary

In *Vakras v Cripps*, the Supreme Court of Victoria was asked to determine whether a solicitor, Mr Cripps, had breached his duty of care to his client, Ms Vakras, by failing to advise her of the risks associated with a particular course of action in litigation. Ms Vakras alleged that Mr Cripps's negligence had caused her to suffer loss.

The central legal issue before the Court was whether Mr Cripps had breached his duty to exercise reasonable care and skill in his professional capacity. This involved considering the scope of a solicitor's duty to advise a client on the potential consequences of litigation, including the risks of adverse costs orders, and whether the advice provided by Mr Cripps met the required standard of care.

Judge Burchardt found that a solicitor owes a duty to advise a client on all reasonably foreseeable risks of litigation, including the risk of an adverse costs order. The Court held that Mr Cripps had failed to adequately discharge this duty by not clearly explaining to Ms Vakras the potential for her to be ordered to pay the other side's costs if she lost the proceeding. This failure constituted a breach of his duty of care. The Court concluded that Ms Vakras had established that Mr Cripps's negligence caused her to suffer loss.

Orders