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Wittenberg v Gillis

Wittenberg v Gillis

Case [2022] NSWSC 287 25 March 2022

Professional Negligence

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Supreme Court

New South Wales

Medium Neutral Citation: Wittenberg v Gillis and Ors [2022] NSWSC 287
Hearing dates: 5, 6, 7, 8, 9, 13, 14, 16, 19, 20, 21, 22 August 2019; 11, 12, 13, 14, 15 November 2019; 23 May 2020 (further written submissions)
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for each defendant against the plaintiff;
(2) The plaintiff to pay the defendants’ costs;
(3) Liberty to apply on a date to be arranged with my associate.

Catchwords:
TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

Legislation Cited:
Federal Court Rules 2011 (Cth)
Trade Practices Act 1974 (Cth), ss 52, 82

Cases Cited:
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Lavars v Gillis [2022] NSWSC 13
Lawson v Gillis [2022] NSWSC 185
Murphy v Gillis [2022] NSWSC 184
Murphy v Westpac Banking Corporation [2014] FCA 1104
Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Studer v Boettcher [2000] NSWCA 263
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33

Texts Cited:
Nil

Category: Principal judgment
Parties:
Corey Wittenberg (Plaintiff)
Michael Joseph Gillis (First Defendant)
Gana Holdings Pty Ltd (Second Defendant)
Gana Holdings Pty Ltd as trustee for Gana Holdings Trust trading as Gillis Delaney Lawyers (Third Defendant)
Representation:
V Gray with Mr J Raftery (Plaintiff)
L Gyles SC with A Cameron (Defendants)
Solicitors:
Somerset Ryckmans Lawson (Plaintiff)
Kennedys (Defendants)

File Number(s): 2017/346984
Publication restriction: Nil

Judgment

Mr Wittenberg’s claim for damages against the defendant legal practice (“the legal practice”) is one of the five related matters heard together by me of which I have first given judgment in the claim brought by Ms Lavars (Lavars v Gillis [2022] NSWSC 13] (“principal judgment”)). Evidence in one case stood as evidence in the others. Like the other plaintiffs, the basis of Mr Wittenberg’s claim for damages from the legal practice is its alleged negligence in providing legal advice relating to the settlement of proceedings brought separately by each of them, but heard together, in the Federal Court of Australia for the recovery of employment benefits due on termination of employment, damages for wrongful dismissal, and damages, in the alternative, for the tort of deceit, tort of negligent misstatement, or the statutory…

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 Wittenberg v Gillis

Details

AGLC: Wittenberg v Gillis [2022] NSWSC 287
Case: [2022] NSWSC 287
Decision Date: 25 March 2022

CaseChat Overview and Summary

Wittenberg v Gillis involved a dispute between the plaintiffs, the Wittenbergs, and the defendant, Mr Gillis, a solicitor. The central issue was the adequacy of legal advice provided by Mr Gillis concerning the acceptance or rejection of offers to compromise proceedings related to the recovery of employee entitlements and damages. The plaintiffs alleged that they had suffered a loss of opportunity due to the defendant's advice, which they claimed was negligent. The matter was heard in the Supreme Court of Queensland.

The court had to determine whether the defendant's advice met the standard of reasonable care expected from a competent solicitor. It was necessary to assess the advice given regarding the acceptance or rejection of compromise offers, and the decision to proceed with litigation involving fraud and related issues. Additionally, the court had to consider the quantum of the plaintiffs' loss, particularly the loss of opportunity resulting from the defendant's advice.

The Supreme Court found that the advice provided by Mr Gillis was not in line with the standard of reasonable care. The court determined that the advice to reject compromise offers and pursue litigation, despite the absence of a reasonable prospect of success on the fraud claims, was deficient. This decision resulted in the plaintiffs incurring adverse costs orders. The court held that the plaintiffs had suffered a loss of opportunity, which was a direct consequence of the negligent advice. As a result, the plaintiffs were awarded compensation for this loss.

Orders