FELETTI v KONTOULAS [2000] NSWCA 59

New South Wales Court of Appeal

CITATION : FELETTI v KONTOULAS [2000] NSWCA 59 FILE NUMBER(S) : CA 40537/98 HEARING DATE(S) : 31 January 2000, 1 February 2000 JUDGMENT DATE : 23 March 2000

PARTIES : ALAN CLARENCE FELETTI v EVAN A KONTOULAS JUDGMENT OF : Mason P at 1; Sheller JA at 78; Rolfe AJA at 79

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20212/94 FILE NUMBER(S) : LOWER COURT Bell AJ JUDICIAL OFFICER :

COUNSEL : Appellant: P L G Brereton SC Respondent: M T McCulloch SOLICITORS : Appellant: Stewart Cuddy & Mockler Respondent: Phillips Fox CATCHWORDS : Negligence - solicitor - failure to advise client as to right of appeal against dismissal from Telecom - causation - valuing lost right - damages. ND DECISION : Appeal upheld

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40537/98 CLD 20212/94

MASON P SHELLER JA ROLFE AJA

Thursday 23 March 2000

Alan Clarence FELETTI v Evan A KONTOULAS

JUDGMENT 1 MASON P: The appellant sued his former solicitor in the Supreme Court and recovered a verdict of $80,150. The appellant claims that the verdict should have been $668,766. The solicitor seeks leave to cross-appeal, contending that there should have been a verdict for the defendant, alternatively that excessive damages were awarded. 2 In 1967 the appellant commenced to work for the Postmaster General's Department as a technician in training. By 1978 he held the position of Technical Officer, Grade 1. By then his employer was the Australia Telecommunications Commission (Telecom). In 1988 the appellant was dismissed for misconduct in accordance with procedures found in Part V Division 6 (ss57-64) of the Telecommunications Act 1975 (Cth) ("the Act"). Stated broadly, the claim against his solicitor relates to the solicitor's contribution to the appellant's failure to lodge a timely notice of appeal against the dismissal and the loss stemming from this dismissal. That loss is in effect the value of the respondent's secure employment with Telecom. 3 In 1985 the appellant was posted to Telecom's Lower North Shore branch. At the St Leonards headquarters the subscribers' installation and repair manager was Mr Jack Morris. Beneath Mr Morris in the hierarchy was the principal technical officer responsible for customer planned equipment maintenance (Mr Cookson) and his assistant (Mr Nordstrom). Beneath them were technical officers of various grades (including the appellant), technicians and technician's assistants. 4 The appellant's job was to correct faults that occurred with telephone systems, usually business systems, within the relevant area. In his particular field time was of the essence. He had virtually permanent access to a Telecom van. Spare parts needed for servicing telephones or replacing damaged ones were drawn from a store at St Leonards. The appellant kept a ready supply of such parts in the van. These included older telephones whose parts were likely to be needed promptly if there was an emergency call at night or on the weekend. This appears to have been a common practice, but especially appropriate for the respondent's particular clientele. All of this equipment remained the property of Telecom. 5 At the beginning of February 1987 the appellant proceeded on five weeks annual leave. He left his Telecom van parked outside his premises, and unloaded the parts and equipment normally kept in the vehicle into the storeroom at his home. 6 He returned to work on 10 March 1987. On that day he was charged with the disciplinary offence of having failed to fulfil his duty as an officer (s58). It was stated by way of particulars that he had engaged in improper conduct as an officer in that without proper authority and outside his designated duties he had nominated a particular contractor to the exclusion of other contractors, the nominated contractor not being a contractor approved by Telecom. (This charge is referred to as "the wiring charge".) On 14 April 1987 notice of the charge was served and the appellant was suspended without pay. 7 The appellant denied the charge. Through the solicitor, he retained Mr J H Young, barrister to represent him in respect of the charge. Thereafter, many of the appellant's dealings were directly with the barrister. 8 On 5 June 1987 police officers executed a search warrant at the appellant's home. They were seeking documents referable to the wiring matter but in connection with the criminal offence of attempting to obtain a financial advantage by deception. The appellant was arrested and charged with three offences under s178BB of the Crimes Act. 9 During the search, the Telecom property which the appellant had removed from the van was found at the appellant's home. Subsequently, Mr Cookson made a statement to a Telecom investigator. He said that he had never given the appellant permission to have any equipment at home. 10 On 19 June 1987 the appellant and his barrister attended an interview with Telecom human resources staff. When it became apparent that there was to be a record of interview, the appellant (on his barrister's advice) declined to participate, fearing that he might incriminate himself in relation to the pending criminal charge. The Telecom representative undertook not to proceed with the wiring charge while the criminal proceedings were pending. In May 1989 the appellant was committed for trial. The trial took place in the District Court in October 1992 and the appellant was acquitted. 11 Meanwhile, Telecom instigated an alternative disciplinary charge (the "property charge") relating to the goods found at the appellant's home. On 8 October 1987 the appellant was charged with the disciplinary offence of having failed to fulfil his duty as an officer within the meaning of s58 of the Act. The particulars asserted that the appellant was guilty of improper conduct as an officer in that he had in his possession specified Telecom property without the express authority of Telecom or of the officer in charge. 12 Although a matter of dispute at the trial, it was established that the solicitor's retainer extended to representing the appellant with respect to the property charge. The solicitor received and sent correspondence about it and he was, to a degree, an intermediary between the appellant and his barrister. 13 Ms Brodie was the Telecom officer appointed to conduct the inquiry into the property charge. She gave the appellant an opportunity to reply to the charge either in writing or by oral representation. On 25 November 1987 the appellant phoned her indicating that he wished to do neither. On 8 January 1988 Ms Brodie wrote to the solicitor pointing out that the two departmental charges were separate and that Telecom's undertaking to delay finalisation of the wiring charge until the associated criminal proceedings were completed did not cover the property charge. A fresh opportunity to make submissions was reserved for 2 February 1988, with the indication that if the appellant did not attend the officer would proceed to finalise her inquiry. 14 The solicitor sent the letter to the appellant who in turn spoke to his barrister. The barrister said that he would contact Ms Brodie. He did so, but did not apparently follow through on his stated intention to ring her back and make an appointment. A further deadline passed. 15 The property charge was determined without further input from the appellant or his legal representatives. Telecom's Discipline Officer, Mr Butler found the charge proved and recommended dismissal. His reasons are set out in a Minute dated 28 March 1988 (Blue Book 160). Mr Butler cited the evidence of Mr Cookson and Mr Nordstrom to the effect that neither had given permission to the appellant or any other employee to have any Telecom equipment at his place of residence. It was found that the items listed in the charge were located in a storeroom under the appellant's residence. Mr Butler accepted Mr Nordstrom's statement that the items included: ... Two items of Main Equipment for Commander telephone services. These major items are normally issued from main store on a one for one basis and are not normally carried by Technicians as excess items. I also observed other items, including touchphones and Commander circuit boards, which I consider were excess to normal holdings by maintenance Technicians.