Bradman v Allens Arthur Robinson - [2009] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Summary Jurisdiction: Application)
BRADMAN & ORS v ALLENS ARTHUR ROBINSON
[2009] SASC 80
Judgment of The Honourable Justice Kourakis
27 March 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING BREACH OF STATUTORY DUTY)
Defendant's application for summary judgment dismissing the common law claims for negligence and breach of retainer brought against them by the executors of the late Sir Donald George Bradman - all of the claims had been statute barred by 25 February 2007 under the Limitations of Actions Act 1936 (SA) - the plaintiff issued proceedings on 1 August 2008, seeking an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) on the ground that the material fact that the defendant acted as Sir Donald's legal adviser in relation to the matters alleged in the claim was not ascertained until 2 August 2007 - summary judgment sought on the ground that the application for an extension of time is bound to fail - whether the admission that the defendant acted as Sir Donald's legal adviser was a “material fact” for the purposes of s 48(3)(b)(i) of the Limitation of Actions Act 1936 (SA) - whether Sir Donald, or alternatively John Bradman, knew the alleged material fact before 2 August 2007 - whether the plaintiff's application to extend time is bound to fail.
Held: Application for summary judgment allowed – s 48(3)(b)(i) of the Limitation of Actions Act 1936 (SA) applies to material facts ascertained by executors of a deceased person's estate, even if those material facts were known to the deceased person before his or her death - however it is beyond argument that the executors in this case were aware of the fact that the defendant acted as Sir Donald's legal adviser before 2 August 2007 - the admission of that fact was not material having regard to all of the evidence known to the executors at that time - the plaintiff's application to extend time is bound to fail.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Defendant's application to strike out paragraph [32] of the plaintiff's statement of claim alleging loss and damage, on the ground that the pleading does not clearly state the nature of the loss claimed.
Held: Application refused.
Limitations of Actions Act 1936 (SA) ss 35, 46A, 48; Trademarks Act 1955 (Cth); Acts Interpretation Act 1915 (SA) s 4; Supreme Court Civil Rules 2006 (SA) rules 78, 232; Survival of Causes of Actions Act 1940 (SA) s 20, referred to.
Ceneavenue Pty Ltd v Martin [2008] SASC 158; Swain v Hillman [2001] 1 All ER 91; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; James v Keogh (Question of Law Reserved No 4 of 2008) (2008) 102 SASR 51, applied.
JT Nominees Pty Ltd v Macks (2007) 97 SASR 471; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Grimwade v Beresford (1974) 9 SASR 157; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Middleton v O'Neill (1943) 43 SR (NSW) 178; Lord v Firns [2000] NSWSC 1021; Robinson v Craven (1994) 63 SASR 267; Lovett v Le Gall (1975) 10 SASR 479, considered.

BRADMAN & ORS v ALLENS ARTHUR ROBINSON
[2009] SASC 80
KOURAKIS J

This is an application by the defendants, Allens Arthur Robinson, a law firm, for summary judgment dismissing the common law claims brought against them by the executors of the late Sir Donald George Bradman. John Bradman, the son of Sir Donald, is one of the executors. I will refer to the defendants as Allens and to the plaintiffs as the executors.
The common law claims are for negligence and breach of retainer by Allens in the course of acting for Sir Donald for the purpose of securing intellectual property associated with his name and assigning that intellectual property to a trust, referred to in the statement of claim as the Bradman Trust. The executors also claim against Allens for breach of their fiduciary duty, but Allens accepts that those claims must proceed to trial.
The Trustee of the Bradman Trust from on or about 20 April 1988 to sometime between 3 June 1994 and 7 August 1995 was Depero Pty Ltd. From at least 7 August 1995 the Trustee has been the Bradman Foundation. Where the identity of the particular Trustee is not material I will refer to the Trustee from time to time as the Trustee.
Sir Donald died on 25 February 2001. The statement of claim pleads that Sir Donald was aged 92 at the time of his death.
The breaches on which the executors rely occurred at various times between 25 September 1991 and 25 February 2001. Therefore all of the claims were statute barred by 25 February 2007.[1] The executors issued the proceedings herein on 1 August 2008. They seek an extension of time pursuant to s 48 of the Limitations of Actions Act 1936 (SA) (the Act), on the ground that the fact that Allens had acted as Sir Donald’s legal advisers in relation to the matters alleged in the claim was not ascertained until 2 August 2007. It is alleged that on that day, John Bradman read in the curriculum vitae of a solicitor and partner of Allens, Mr Dwyer, that “for over 10 years he acted as legal advisor to Sir Donald Bradman”.
[1] Limitations of Action Act 1936 s 35 imposes a six year limitation period for actions founded on contract or tort other than actions for personal injuries.
Allens seeks summary judgment on the ground that s 48 of the Act does not apply to the executors’ actions. In the alternative, Allens contends that the application for an extension of time is bound to fail because incontrovertible evidence shows that Sir Donald, or in the alternative, John Bradman, knew the alleged material fact before 2 August 2007, and therefore outside of the period of 12 months preceding the institution of the summons provided for by s 48(3)(b)(i) of the Act. Allens also contends that the admission that Mr Dwyer acted as Sir Donald’s legal adviser is not a material fact.
For quite different reasons, Allens also seeks an order that para [32] of the statement of claim be struck out. That paragraph alleges that Sir Donald suffered loss and damage as a result of the pleaded breaches of duty. Allens contends that the pleading does not clearly state the nature of the loss claimed.
For the reasons that follow, I have concluded that:
1.Section 48(3)(b)(i) of the Act applies to material facts ascertained by executors of a deceased person’s estate, even if those material facts were known to the deceased person before his or her death.
2.However it is beyond argument that:
a.The executors were aware of the fact that Allens acted as Sir Donald’s legal advisers before 2 August 2007, and thus before the 12 month period preceding the institution of the action provided for in that section.
b.The admission evidenced by the curriculum vitae was not material having regard to all of the evidence known to the executors at that time.
3.The application to extend time in which to institute the claim on the basis of the discovery of a material fact is bound to fail, and therefore Allens’ application for summary judgment must be allowed.
4.The basis on which the executors’ loss is claimed is pleaded with sufficient certainty, and will in any event be the subject of an expert’s report; Allens’ application to strike out para [32] of the executors’ statement of claim should be refused.
The statement of claim
The facts giving rise to Allens’ retainer pleaded in the claim of the executors may be summarised as follows. Allens has acted for the Trustee since 1988. From about September 1991 Allens commenced to act as Sir Donald’s “solicitors and legal advisers” in relation to preventing others from exploiting his name and various trademarks of which he was the proprietor. Allens was also retained to make arrangements allowing the Trustee to administer those trademarks and to raise revenue through the limited commercial exploitation of them in accordance with the wishes of Sir Donald and his family. At the same time, Allens was acting for the Trustee in relation to the best way to commercially exploit those trademarks. At all material times Allens was aware that it was Sir Donald’s wish and intention that he and his family be able to prevent the Trustee from using the trademarks in any manner of which they did not approve. In particular, in a letter from Sir Donald to Allens dated 1 October 1999, Sir Donald referred to his power of veto over the commercial exploitation of his name by the Trustee and said that he would like his successor(s) to be able to play a similar role after his death.
The executors plead that it was an implied term of Sir Donald’s retainer that Allens would act with due care, skill and diligence in acting as his solicitors and legal advisers, and in particular, in providing advice on preventing the Trustee and others from exploiting his name and trademarks other than in accordance with his and his family’s wishes. It is alleged that that term is implied by law. It is further alleged that Allens was under a common law duty to so act.
The statement of claim alleges at least four separate breaches of duty.
First, it is alleged that Allens breached its duty to Sir Donald on or about 25 September 1991. At that time Allens advised Sir Donald to authorise Allens to cause all the trademarks of which he was the proprietor to be registered, and to assign them to the Trustee. The executors allege that Allens failed to advise Sir Donald about the effect of the proposed assignment on his capacity to control the use of the trademarks. The time within which to bring proceedings for this breach had expired well before Sir Donald’s death.
Next it is alleged that on or about 14 March 1994, Sir Donald made a statutory declaration authorising the Trustee to use his names and all forms of his signature in respect of goods and services, and authorising it to register his name and all forms of his signature as trademarks throughout the world. It is alleged that Allens advised both Sir Donald and the Trustee on the statutory declaration and that Allens drafted the statutory declaration. It is alleged that Allens breached the duties of care it owed Sir Donald by failing to advise him on the nature, effect and value of the trademarks and forms of his signature, and how the assignments would affect his capacity, and the capacity of his family, to control the way in which the trademarks and signatures were exploited. The time within which to bring proceedings for this breach had also expired well before Sir Donald’s death.
Thirdly, the statement of claim alleges that Allens acted for both Sir Donald and the Trustee in attending to applications made by Sir Donald for registration, and the registration of, multiple trademarks, and in the drafting of and advising on a deed of assignment of those trademarks.
With the assistance of Allens, Sir Donald made multiple applications for the registration of trademarks pursuant to the Trademarks Act 1955 (Cth), and had obtained registration of many of them before 7 July 1994. The trademarks that were the subject of those applications are referred to in the statement of claim as the “Initial Australian Trademarks”. Sir Donald had also applied for and obtained registration for trademarks in certain overseas countries. Those trademarks are referred to in the statement of claim as the “Overseas Trademarks”. On 7 July 1994, pursuant to a deed bearing that date, the Trustee took an assignment from Sir Donald of the Initial Australian Trademarks, the Overseas Trade Marks and the goodwill associated with them.
It is alleged that Allens failed to advise Sir Donald on the nature, effect and value of the Initial Australian Trademarks, the Overseas Trademarks and associated goodwill. It is also alleged that Allens failed to advise Sir Donald that if he executed the deed of assignment, the Trustee would be able to use the property in ways of which Sir Donald and his family did not approve. It is further alleged that Allens breached its duty by failing to ensure that Sir Donald retained, for himself and his family, a legal right to control the Trustee’s use of the property so assigned. The time within which to bring proceedings for these breaches had expired well before Sir Donald’s death.
The statement of claim further alleges that in about August 1998 Allens was again instructed to give advice to Sir Donald and to attend to the registration of various trademarks incorporating the name, likeness or other images associated with Sir Donald. Allens was also instructed to negotiate and draft an agreement between Sir Donald, his son John Bradman, and the Trustee, which would preclude the Trustee from registering and using any and all of the intellectual property associated with Sir Donald, including any trademarks registered pursuant to Allens’ most recent advice, over the objection of Sir Donald or of his successor(s). The executors allege that those instructions are recorded in a letter from Allens to Sir Donald dated 14 August 1998 and Sir Donald’s reply dated 16 August 1998. Allens was also retained by the Trustee in respect of those matters. The retainer of Allens by the Trustee was said to be evidenced by correspondence between Allens, the Trustee and Sir Donald between 14 August 1998 and 30 March 1999.
The executors plead that the Trustee applied for and obtained registration of various trademarks between 1999 and 2001. Those trademarks are referred to as the “1999 trademarks”. The executors allege that Allens acted for Sir Donald and the Trustee in attending to the registration of the 1999 trademarks. They further allege that Allens acted for both Sir Donald and the Trustee in the negotiation and preparation of several drafts of an agreement between them. It is pleaded that the drafts were sent to Sir Donald and John Bradman between 14 December 1998 and 3 August 2000. Again, it is pleaded that Allens breached the duty it owed Sir Donald in so acting by failing to draft an agreement that gave Sir Donald and his successors control over the use of the intellectual property associated with Sir Donald. It is alleged that Allens breached its duty by failing to advise Sir Donald that if the 1999 trademarks were registered in the name of the Trustee, without an agreement limiting the use of those trademarks, the Trustee would be able to use the trademarks in any way it saw fit without the approval of Sir Donald and his family. It is alleged that Allens breached its duty by failing to wait until an agreement was finalised before attending to the registration of the 1999 trademarks. The time for bringing an action for the breaches of duty alleged with respect to the 1999 trademarks had not expired at the time of Sir Donald’s death.
The statement of claim pleads, by paragraph [32], the loss and damage suffered by Sir Donald in the following way:
By reason of the breaches of the implied term of due care, skill and diligence, the duty of due care, skill and diligence, and fiduciary duty pleaded at paragraphs 15, 16, 19, 20, 25,26, 30 and 31 hereof:
(a)the Foundation became the owner of Sir Donald’s Intellectual property, the Initial Australian Trade Marks, Overseas Trade marks, Associated Goodwill and 1999 Trade Marks, which Sir Donald would not otherwise have permitted; and
(b)Sir Donald did not retain for himself and his family, or subsequently negotiate, a legal right to control the Foundation’s use of that intellectual property so that the Foundation would not be able to use it in ways of which Sir Donald and his family did not approve, and Sir Donald thereby suffered loss and damage corresponding to the value of the said intellectual property.
The Limitations of Actions Act 1936
The claims of the executors in contract and tort are subject to the six year limitation period imposed by s 35 of the Act. However, the limitation period is relaxed by s 48 of the Act, which provides:
General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a)     the court has jurisdiction to entertain; or
(b)     the court would, if the action were not out of time, have jurisdiction to entertain.
(3)     This section does not—
(a)     apply to criminal proceedings; or
(b)     empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(3a)A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a)     it forms an essential element of the plaintiff's cause of action; or
(b)     it would have major significance on an assessment of the plaintiff's loss.
Section 4 of the Acts Interpretation Act 1915 (SA) provides that the word “Act” means an Act of the Parliament of South Australia. In s 48 the word therefore includes the Act itself. The power to extend limitation periods conferred by s 48 of the Act is therefore applicable to s 35 of the Act.
Principles governing summary judgment
Both the plaintiff and defendant accept that in order to establish an entitlement to summary judgment pursuant to r 232 of the Supreme Court Civil Rules 2006 (SA), Allens must establish that the executors have no reasonable prospects[2] of obtaining an extension of time pursuant to s 48 of the Act.
[2] Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [81]; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471.
In Ceneavenue Pty Ltd v Martin[3] Debelle J explained the test set for summary judgment by r 232 in this way:
While there can be no doubt that paragraph (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried. The fact that the expression “no reasonable basis” is used in both paragraphs (a) and (b) of Rule 232(2) suggests that the same test applies both when considering whether there is no reasonable basis for defending the plaintiff’s claim and when considering whether there is no reasonable basis for the claim against the defendant. The test in Rule 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.[4]
[3] [2008] SASC 158.
[4] Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [81] per Debelle J.

The authorities are replete with warnings about the seriousness of the step of refusing a litigant a full hearing.[5] There have been many attempts to explicate the “real question to be tried” formula. In Swain v Hillman[6] Lord Woolf MR contrasted a claim that raises a real question with one which has a “fanciful” prospect of success, or one which is “bound to fail”.
[5] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Grimwade v Beresford (1974) 9 SASR 157 at 160; Swain v Hillman [2001] 1 All ER 91 at 96 per Judge LJ.
[6] [2001] 1 All ER 91.
The purpose of the rule is plain. In Swain Lord Woolf MR explained that it saves expense and achieves expedition. Importantly, he observed that it avoids the Court’s resources being used up on cases for no purpose.[7] The rule serves the interests of justice, because as Lord Woolf MR explained:
If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.[8]
[7] Swain v Hillman [2001] 1 All ER 91 at 94.
[8] Swain v Hillman [2001] 1 All ER 91 at 94.
It follows from the object of the rule so stated that it is inappropriate to hold a mini-trial. In Three Rivers District Council v Bank of England (No 3)[9] Lord Hope put it in this way:
It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hilman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.[10] (underlining added)
[9] [2003] 2 AC 1.
[10] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 261, [95].
A similar position was stated by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd,[11] when he said:
The purpose of the enactment is to enable the court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. … It could not have been the intention of the parliament in introducing s 31A to the Federal Court Act to require the court to engage in lengthy and elaborate trials on an interlocutory basis for the purpose of determining whether or not a proceeding had no reasonable prospects of success.[12]
[11] (2006) 236 ALR 720.
[12] Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [47]-[48].
Limitation of action points may, in some cases, be especially difficult to determine summarily. For example, in Wardley Australia Ltd v Western Australia,[13] Mason CJ, Dawson, Gaudron and McHugh JJ said:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of a kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.[14]
[13] (1992) 175 CLR 514.
[14] Wardley Australia Ltdv Western Australia (1992) 175 CLR 514 at 533.
However, the relevant question under consideration in Wardley was the date on which the loss was suffered and from which time the limitation period would commence to run. The resolution of that issue was inextricably linked to the assessment of damages. That is not in issue here.
I accept that the exercise of a discretion, like the discretion to extend time pursuant to s 48 of the Act, is particularly susceptible to subtle factual considerations which may emerge at trial. For that reason, even more caution must be taken before summarily rejecting a claim that seeks a favourable exercise of a discretion.
Even though s 48(5) of the Act expressly provides that an application for an extension of time may be determined before the close of pleadings, it seems to me that that sub-section is addressed more to preliminary determinations of the issue on a full hearing of the application than to summary judgment applications. Nonetheless, I am satisfied that if it is shown that an application for a favourable exercise of a discretion is bound to fail it should be disposed of summarily. There is no reason to distinguish doomed applications for discretionary relief from other doomed factual and legal claims. The summary dismissal of a discretionary claim does not mean that the relevant discretion has been exercised without having regard to all relevant matters. The claim will only be summarily dismissed where it is shown that, realistically, no further material, which could possibly affect the exercise of the discretion, could emerge at trial.
Does s 48 apply to executor’s actions
The meaning and effect of the phrase “facts material to the plaintiff’s case were not ascertained by him” in s 48(3)(b)(i) of the Act is the subject of dispute between the parties on this application. Allens advances several submissions about the construction of s 48 that would preclude reliance on that section by the executors at all, or at least in the circumstances of this case.
Firstly, Allens submits that s 46A of the Act, which extends the time in which a cause of action that survives death can be brought by the time that it takes to obtain a grant of probate, is inconsistent with the conferral of a power on a court to further extend that time pursuant to s 48 of the Act. I reject that submission. The finite extension of time allowed by s 46A addresses the practical difficulty of bringing proceedings in the period between death and the grant of probate. Section 48 of the Act is designed to remedy a very different mischief. There is no reason to read down s 48 of the Act, and in so doing, deny executors and beneficiaries any relief from the hardship that may be caused by the late discovery of material facts. It is at least arguable that s 46A of the Act does not reduce the scope of s 48 of the Act.
Next, Allens contends that, in an action brought by the executors of a deceased person, s 48 of the Act requires the material fact to have been ascertained by the deceased and not the executors. It argues that the material fact must have been ascertained by the plaintiff, and that in cases brought by the executors of deceased persons it is the deceased person, and not the executor, who is the plaintiff for the purposes of s 48(3)(b)(i).
There are several difficulties with that construction. Firstly, in an action brought by the executors pursuant to the Survival of Causes of Actions Act 1940 (SA), the plaintiff is not the deceased. By s 20 of the Survival of Causes of Actions Act 1940 (SA) “a cause of action vested in a person at the time of his or her death survives for the benefit of his or her estate”. The power to institute those proceedings on behalf of the estate is vested in the executors.[15] Allens’ contention is therefore not supported by the plain terms of s 48(3)(b)(i) of the Act, which expressly refer to the “plaintiff”, as it is the executors, rather than the deceased person, who are in such a matter the “plaintiff”.
[15] Middleton v O’Neill (1943) 43 SR (NSW) 178; Lord v Firns [2000] NSWSC 1021.
Secondly, the construction proposed by Allens requires words limiting the ordinary meaning of the word “plaintiff” to be read into that section. The submission of the executors that the word “plaintiff” is a term that means, and only means, the person who commences, or subsequently prosecutes, a cause of action, should be accepted. It is at the very least arguable that that is the better construction.
Thirdly, the construction of s 48 of the Act put by Allens would, at least in its most extreme form, lead to quite unjust results that are unlikely to have been intended by the enactment of what is plainly a remedial provision. For example, a testator might not have brought an action to remedy a wrong he or she has suffered that is still within time before his or her death. The executors might not become aware of the possible action until after the limitation period has expired, but may soon thereafter discover a material fact within the meaning of s 48 of the Act. It is unlikely that the legislature intended a wrongdoer to benefit from the adventitious death of the testator before he or she had commenced the action. As a matter of policy there is little reason to distinguish between such a case and a case where a material fact is known to a testator who dies before the expiry of the 12 month period in which an out of time claim can be brought. There is good reason to allow the Court a discretion to extend time in cases where the executors first ascertain the fact after the period of 12 months from the deceased’s discovery has elapsed. I accept that the policy reasons for denying the benefit of s 48 of the Act to executors who discover a material fact that was well known to a testator for a period of more than 12 months before his death are greater. However, the terms of s 48 of the Act do not readily allow for the implication of words which would distinguish between the three types of case to which I have referred.
Fourthly, the construction contended for by Allens would cause difficulty in cases where a trustee commences a proceeding with respect to a cause of action that accrued when another person was the trustee. In such a case, a question would arise as to whether it is the knowledge of the earlier trustee, or the trustee bringing the action, that is relevant. Again, on Allens’ construction, an injustice may be caused where the relevant material fact was not known to the earlier trustee, or if known, not communicated to his or her successor, within the period of 12 months in which an action must be brought.
Where a wrong affecting the property of the trust is committed, the chose in action for a remedy is the property of the trust. A later trustee who succeeds the person who was the trustee at the time the action accrued is entitled to issue the proceedings to enforce the rights of the trust. The expiry of a limitation period under the Act does not extinguish the right, it merely bars the remedy subject to the discretion of the Court.[16] In my view, the plain words of s 48 of the Act entitle the succeeding trustee to rely on the material facts he or she has ascertained to enliven the discretion conferred by s 48 of the Act, to allow the Trustee to obtain a remedy on behalf of the beneficiaries. I can understand the policy reasons that favour a rule that, at least where the trustee’s predecessor was aware of the material fact for more than 12 months before his or her removal, the knowledge of the earlier trustee should preclude reliance on s 48 of the Act by his or her successor. However, the obstacle in the way of Allens’ construction is again the intractable language of s 48 of the Act.
[16] Robinson v Craven (1994) 63 SASR 267.
Fifthly, it is difficult to find a simple form of words that could be inserted to give the section the meaning for which Allens contends. The words “or any person on whose behalf the action is brought” will not do, because as I have explained the action is not brought on behalf of the deceased at all. Rather, a complex set of words would have to be inserted, with the effect that where the plaintiff is an executor (or trustee) the Court cannot extend a limitation period in cases where facts material to the executor’s (or trustee’s) case had been ascertained by the deceased (or preceding trustee) within the relevant time period. The insertion of words to that effect would be to amend the legislative provision. The very limited capacity of the courts, in the exercise of their judicial power, to “supply the omission of the legislature” was explained by Doyle CJ in James v Keogh[17] in this way:
[17] James v Keogh (Question of Law Reserved No 4 of 2008) (2008) 102 SASR 51.
In Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292, McHugh JA conveniently summarised the circumstances in which a court may “read words into a legislative provision to give effect to its purpose” (at 302). Relying on the judgment of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74, he said that three conditions must be fulfilled:
First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
In R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 this question was considered by the Court of Criminal Appeal of New South Wales.
Referring to the summary of Lord Diplock’s judgment by McHugh JA, Spigelman CJ said (at [11]-[12]):
[11]The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.
[12]As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.
I respectfully agree, as his Honour says, that the process of construction must be “text based”. As I understand the reasons of the Court in Young, all five members of the court agreed in substance with the approach taken by McHugh JA: Beazley JA at [124]; Abadee and Barr JJ at [217]; James J at [288]-[294].
I considered this issue in R v Di Maria (1996) 67 SASR 466. I took the approach referred to above, but made one point in conclusion that is worth repeating (at 474):
In so concluding I have used the purpose of the legislation to test the consequences of the possible meanings of the provision. I have not, to effect the legislative purpose, made provision for a situation to which Parliament did not direct its mind, relying upon purpose as identified by me to remedy the oversight. I have added the words which, I consider, Parliament did intend to add to cover a situation to which it had adverted. Its error was mere oversight, the omission of the intended words: cf Tokyo Mart Pty Ltd v Campbell (at 283), per Mahoney JA.[18]
[18] James v Keogh (Question of Law Reserved No 4 of 2008) (2008) 102 SASR 51 at 59-60, [48]-[53].
In my view, the circumstance that a material fact merely enlivens a discretion to extend time is a further reason not to strain the language of s 48 of the Act to deal with unmeritorious reliance on material facts in circumstances like those pressed by Allens; unmeritorious claims of that kind can be addressed by a proper exercise of the discretion.
Nor is the analogy with a guardian ad litem useful, because he or she stands in the shoes of the plaintiff. Where a litigation guardian is appointed, the plaintiff is, and remains, the person under a disability.[19] It is unnecessary in this case to consider how s 48 of the Act would operate in those circumstances.[20]
[19] Supreme Court Civil Rules 2006 r 78.
[20] See discussion in Lovettv Le Gall (1975) 10 SASR 479 at 484-5.
For those reasons I conclude that it is certainly arguable that the knowledge of the testator of the material fact on which the executors rely does not preclude the application of s 48 of the Act to actions brought by them.
The material fact
The material fact relied on by the executors was a biographical note about Mr Dwyer posted on the Allens website and later read by John Bradman. I will refer to this electronic publication as the “website CV”. On that website, under a heading “CV: Jim Dwyer”, there is a photographic image of the face of Mr Dwyer. Alongside that image, the statement is made that Mr Dwyer has been a partner of Allens since 1977. The second paragraph of the text of the website CV refers to Mr Dwyer’s clients in the following way:
Jim’s list of clients includes Sony Music Australia, Sony Computer Entertainment, Burger King, International Celebrity Management, Phillips and the Ritz Hotel of Paris. For over 10 years he acted as legal advisor to Sir Donald Bradman. His advice is sought by the legal and business community in Australia and from overseas.
That statement, at the very least, represents that from time to time over a period of 10 years Mr Dwyer had acted for Sir Donald as a legal adviser. It is also possible, if not an even more natural construction, to read that statement as an admission that Sir Donald had engaged Mr Dwyer on a general retainer as his legal adviser over that entire period.
The statement can be regarded as a material fact in two different but related ways. First, it may be seen as a revelation of the historical “fact” that Mr Dwyer acted as Sir Donald’s legal adviser. I have italicised the word “fact” because it would be a fact for the purposes of s 48 of the Act, even if it were ultimately disproved in the subsequent proceedings. In its character as a revelation, the statement may be compared to the hearsay communication of a material fact to a plaintiff. The hearsay account through which the plaintiff ascertains the material fact may not be admissible in evidence to prove that fact, but the fact so communicated will nonetheless constitute a material fact for the purposes of s 48 of the Act.
Insofar as the executors rely on the website CV as a historical revelation, the issue is when the executors first “ascertained” that fact. In this case that enquiry raises the legal question: what degree of certainty is implied by the word “ascertained”? If a plaintiff is completely ignorant of the fact before the revelation on which he or she relies, no difficulty arises. Similarly, a plaintiff who merely suspects a fact has probably not yet ascertained it. Beyond that, the point at which it can be said a fact is ascertained may be problematic. Two features of the statutory context in which the word “ascertained” is used must be kept steadily in mind when assessing the degree of certainty that it imports. Firstly, s 48 of the Act is concerned with the discovery of a factual basis that supports the making of a legal claim. Secondly, a material fact may have been ascertained with a sufficient degree of certainty, even if it is subsequently disproved in the course of the proceedings.
The other way in which the website CV can be regarded as a material fact is in its character as an item of admissible evidence. The statement in the website CV is, in itself, evidence of an admission against interest. There can be no question that the executors first ascertained the fact of the existence of that evidential material within the relevant period. Insofar as the executors rely on the website CV as an item of evidence, the primary issue in this case is the materiality of that evidence in the context of the other material known to the executors and their claim. The question is: did Mr Dwyer’s admission that he was Sir Donald’s “legal advisor” add anything to the material supporting the executors’ case that Allens owed the duties pleaded by the executors? The executors accept that the materiality of the evidence of the admission must be assessed against all of the information already known by them.

The executors further accept that John Bradman knew that Allens had acted as Sir Donald’s solicitor before reading the website CV. However, they contend that he had a limited and vague understanding of the nature of that retainer. The executors’ case is that even though John Bradman knew that Allens had acted for Sir Donald to procure the registration of the trademarks and assign them to the Trustee, he did not know that Allens’ retainer extended to advising Sir Donald about whether it was in his best interests to assign the trademarks. The executors describe the former, more limited retainer as acting “ministerially”. I understand the executors to refer by that expression to a solicitor who is acting as an agent instructed only to give effect to the transactions relating to the trademarks and no more. A solicitor so instructed may be described as a conveyancer or trademark attorney who has no obligation to advise the client on the consequences of the assignment on their interests.
However, the scope of a solicitor’s duty is seldom limited to the express terms of his or her retainer. Often one of the first duties of a solicitor is to warn his or her client against proceeding with the instructions he or she has been given. Even a simple land conveyance between parties at arms length may place a solicitor in a position of conflict, because his or her duty to advise transcends the limited instructions he or she has received. It is difficult to understand why the bare instruction to assign the trademarks, which were patently personally and commercially valuable, would not be sufficient to impose on Allens a duty to advise Sir Donald on the wisdom of the course of action he proposed. Nonetheless, I accept that the fact that Allens actually gave legal advice to Sir Donald, as well as attending to the registration and assignments of the trademarks, would be a fact material to the executors’ action, because it negates the possibility that Allens had, for some unexplained reason, been engaged on an unusually limited basis.
Allens contends, and the executors deny, that correspondence, which John Bradman had either written or received before reading the website CV, incontrovertibly shows that he knew that Allens had not acted as Sir Donald’s trademark attorney. It is to that correspondence that I now turn.
Correspondence before reading website CV
In considering the website CV in its character as a revelation, statements made by John Bradman in correspondence which indicate an awareness of the nature of the professional relationship between Sir Donald and Allens will be more important. On the other hand, in its character as an item of evidence, the strength of the express or implied admissions made by Allens in that correspondence is the critical consideration.
The documentation of Allens’ first engagement in about 1991 is sparse. It appears from correspondence between Bruce Collins, who was the Chairman of the Bradman Museum Trust, and Sir Donald, that Mr Collins engaged Allens to act for both the Trustee and Sir Donald. That correspondence says very little, if anything, about the nature or scope of the retainer. There is nothing in it which purports to limit the scope of Allens’ professional responsibilities.
On 8 July 1998 John Bradman wrote to Mr Dwyer making certain inquiries about a dispute between Sir Donald and the Trustee on one side and a Mr Thompson on the other. The following extract from that letter shows that John Bradman knew that Mr Dwyer had done more than act as a mere trademark attorney:
Dear Jim
I write to express my very warm thanks for your remarkably effective work on behalf of the museum and our family. … Richard is right. Without you we would have been helpless. Things really were in a complex mess and could have run right out of control. But we seem to be getting a most satisfactory outcome.
I know that you and your firm are happy to undertake some Pro Bono work and you say that it may not be without commercial benefit. … and I want you to be quite sure that it is very much appreciated. (underlining added)
The letter suggests that Mr Dwyer had told John Bradman about the work that he had done, or at least that Mr Dwyer had been present when the man “Richard” had informed John Bradman of that work. The most obvious way in which a solicitor can achieve “a most satisfactory outcome” when the affairs of a client are “in a complex mess” is by giving advice. That advice must have been given some time before 1998. The passage reveals that John Bradman knew that Mr Dwyer had performed work on behalf of both the Trustee and the Bradman family. In subsequent correspondence Mr Dwyer did not take any issue with John Bradman’s assessment of the nature and importance of the work he had performed.
Later in the same letter, John Bradman referred to a lunch that he and Mr Dwyer had attended and recounted statements made by Mr Dwyer at that lunch in this way:
Do I accurately summarise your comments as follows? The museum will need to expand its trademarks to secure its interest in the future. It will also need to ensure good long term relations with our family, which requires that the family is fairly treated. … These issues should be properly negotiated and documented. Does that sum it up?
…
I discussed your comments with my father last night and his response was that he fully agreed with them. He said that he really had no idea that his name would have the commercial value which it apparently has, and agreed that a fair benefit should flow to the family. He also said that while he can contain the use of his name during his lifetime, after his death he would like the family to be entitled to have a fair say in its use. … You were kind enough to say that you would get your head more fully around these questions if I wished. I’m sorry to say Jim that that is an offer which is too good to refuse and is very gratefully accepted. … Jim, I am very conscious of not wanting to test the limits of present arrangements and of the huge amount you have done for us. I think we are dealing with fundamental issues and problems which will not keep coming up. But please be frank with me. …
It is clear from that passage that at the lunch referred to, Mr Dwyer had proffered advice to John Bradman about the relationship between the Bradman family and the Bradman Trust, and that John Bradman understood that Mr Dwyer had already done a “huge amount” for the family. John Bradman’s reference to the “present arrangements” and the “huge amount” Mr Dwyer had done for Sir Donald strongly suggest that he knew that Mr Dwyer had acted as an adviser and not merely as the instrument through which Sir Donald executed his plans.
On 8 July 1998 John Bradman asked Mr Dwyer to write to Sir Donald, inviting him to give instructions to enforce certain trademarks already obtained, register future trademarks, and to negotiate an agreement with the Trustee that would give the Bradman family an effective voice in the future use of the Bradman name. Between that date and 16 September 1998 formal letters of instruction were then prepared for the approval of Sir Donald and sent to both Sir Donald and John Bradman. It is plain from that course of correspondence that John Bradman was aware, at least from 1998, of the role of Mr Dwyer as an adviser to his father about the steps he should take in defining the relationship between himself and his family on the one hand and the Trust on the other. The course of correspondence ended with a letter from John Bradman to Mr Dwyer dated 16 September 1998, in which he said:
I think he [Sir Donald] would be uncomfortable putting his name to a longish letter of the sort which we have been looking at. I think that the best approach would be to send to him a longish explanatory letter, much like the one that has been prepared, and propose that he write to you a brief instructing letter.
As to the letter to him, I think that your original concept of a more open textured discussion of the issues was best. My amendments, including the headings, give a misleading emphasis and are rather too precise to provide an explanation which allows for broard [sic] reflection.
John Bradman included in his facsimile a suggestion for the draft letter that Sir Donald would write. That draft included the following:
Dear Jim,
Thank you for your letter concerning the Foundation, its commercial use of rights assigned to it by me and future relations between the Foundation and our family. I have given it my carefull [sic] consideration. May I also thank you and your firm for your generous support in continuing to represent me and the Foundation in controlling the unauthorised use of my name, image or likeness either generally or in relation to copyright or trade mark issues.
The effect of John Bradman’s letter to Mr Dwyer was to propose a convenient way in which Sir Donald might engage Mr Dwyer to act as his legal adviser.
It is not clear to me whether Sir Donald in fact sent a letter of instruction to Mr Dwyer in those terms. However, instructions to prepare a document governing the relationship between the Bradman Foundation and the Bradman family were given in a meeting between Sir Donald and Mr Dwyer in Adelaide on 2 October 1998. In a letter dated 14 December 1998 Mr Dwyer wrote to John Bradman enclosing a draft deed of an agreement between Sir Donald and the Foundation. In that letter Mr Dwyer wrote:
Enclosed for your review is a draft deed intended to document these future arrangements. You will appreciate that it is difficult for us to prepare a document which accurately reflects the intentions and approach of Sir Donald and his family. As always, we would greatly appreciate your suggestions as to how this draft deed may be improved.
The executors submit that the difficulty adverted to in that passage is most obviously explained on the basis that Allens was not acting as Sir Donald’s adviser. I do not accept that the letter is inconsistent with the existence of a retainer that extended to giving advice to Sir Donald. In my view, the difficulty referred to is no more than a reference to the sensitive and personal nature of Sir Donald’s wishes, and the difficulty that Mr Dwyer had in articulating them when he had not yet received detailed instructions about them. It must be remembered that Mr Dwyer worked from Sydney and Sir Donald resided in Adelaide. The reference to difficulty may also be explained by the awkward position of Mr Dwyer as adviser to both the Trust and Sir Donald.
On 24 December 1998 Allens sent to John Bradman a draft of a letter, which it was proposed would be sent by Sir Donald to Richard Mulvaney, who was the executive officer of the Trustee.
The letter drafted by Allens provided in part:
It is my wish that this process of consultation with you (on behalf of the Foundation) regarding the use of this intellectual property shall continue. It is my wish that, after my lifetime, this process of consultation shall continue in the same manner between representatives of my family and the Foundation. It is also my wish that the future conduct of this process of consultation be formally documented in a deed between my family and the Foundation. It is my intention that this deed will clearly state in formal terms the rights and obligations of both my family and myself, and the Foundation, in the context of this process of consultation, but that these terms will largely describe the relationship as it exists now between us. I have asked John to work with you and our lawyers, Allen Allen & Hemsley, to both finalise the terms of this deed and make the appropriate arrangements for my family to be a party to this deed (whether this be in the form of a family trust, or some similar arrangement). (emphasis added)
John Bradman made in his own hand the following suggested amendment to the letter:
However, if copyright interests are assigned the payment of royalties should be provided for. More generally, provision should be made for negotiations concerning royalties to take place under the guidance of Allens.
During the year 2000 Allens continued to take instructions on the forms that the Deed should take from both Sir Donald and the Trustee. Allens kept John Bradman informed of that process.In that same year Mr Dwyer acted for Sir Donald in a dispute with Mr Thompson, to whom I referred earlier. On 17 November 2000 Mr Dwyer wrote to Mr Thompson asserting Sir Donald’s interest in the confidentiality of letters written by Sir Donald to Mr Thompson. The letter demanded that Mr Thompson take steps immediately to regain control of the letters and ensure that none of them was offered for sale. Following Sir Donald’s death on 25 February 2001, instructions on that matter were given by John Bradman. On 13 August 2001 John Bradman sent a 16 page facsimile to Mr Dwyer, attaching letters he had received from Mr Thompson and from Mr Russel McLay, the Chairman of the then Trustee of the Bradman Trust, Depero Pty Ltd. Included amongst the material was a note from John Bradman asking Mr Dwyer a number of questions. The questions assume that Mr Dwyer had a good understanding of the dealings between Sir Donald, the Trustee and Mr Thompson.
To the extent that the correspondence to this point leaves the nature of Allens’ retainer in any doubt, that doubt is removed by the subsequent correspondence to which I am about to refer.
In February 2002 John Bradman sent to Mr Dwyer by facsimile a note concerning his recent dealings with Richard Mulvaney who, at that time, was a director and public officer of the Bradman Foundation. The letter discusses what appears to have been an escalating dispute between John Bradman and the Bradman Foundation. Mr Dwyer responded on 13 March 2002. Mr Dwyer referred to that dispute before making the following comments:
As you flagged, John, when we spoke recently, I am in a difficult situation. As you know my association began way back in I think 1987 when the Bradman Oval, (as we now know it) the Pavilion, the Museum and the network of licences etc were very much a dream. Allen Allen and Hemsley has throughout the past fourteen years given its unwavering support to me and to David and those of my colleagues who have provided their legal advice to either The Bradman Foundation or to Sir Donald or to you or the family. We take great pride in our association and share in the sense of satisfaction at what has been achieved with limited funding and in a relatively short time. …
Because of my role as adviser both to you, your father and the family and at the same time my role in acting for the Foundation over all those years I have no choice but to refrain from getting involved in dealing with the issues which you have raised in your correspondence with me and with Richard. (underlining added)
The words underlined in the above passage expressly and unequivocally admit the same fact admitted by Mr Dwyer on the website CV. Indeed, in his letter Mr Dwyer admits that he had acted for Sir Donald for 14 years prior to March 2002, which is a much longer period than that admitted in the website CV. Mr Dwyer’s acknowledgement that he could not act for either the foundation or John Bradman because of a conflict of duty adds weight to the admission that he was retained to give advice to Sir Donald. Mr Dwyer could not have been subjected to conflicting duties if he had been retained to act “ministerially” and without any obligation to advise.
John Bradman recognised the significance of the conflict to which Mr Dwyer had referred when he responded on 29 May 2002 in the following way:
This takes me back to your letter which seems to make it clear that you and your firm have a conflict of interest if you were to be involved in matters between the family and the Foundation.
I have been reflecting on this and on past events. It seems to me that such conflict did not occur while my Dad was alive because his wishes prevailed as he was recognised as having a veto over the Foundation. (Indeed, as you know, he wanted this to continue with the family after his death). Ultimately therefore, even when you were advising the Foundation, you acted for the family, ie. for him. Your letter would seem to make it clear that this is no longer so. (underlining added)
On 5 August 2002 Mr Dwyer wrote to John Bradman in order to address what Mr Dwyer described as “a number of letters you have sent me over the past months”. Mr Dwyer specifically addressed the letter of 29 May 2002:
Your letter of 29 May seems to suggest that your perception is that our firm may, in the future, in acting on the one hand for you and the family and also acting for The Bradman Foundation, prefer the interests of The Bradman Foundation over the interests of you and your family. If that accurately paraphrases your letter and if that continues to be your view then it goes to the heart of a solicitor client relationship. For the record, I do not accept that that would occur in the future or that it has occurred in the past.
In so replying Mr Dwyer did not dispute John Bradman’s characterisation of his role as an adviser to both the Foundation and Sir Donald. By asserting that he had never preferred the interests of the Bradman Foundation over the Bradman family, Mr Dwyer again admitted his role as an adviser to both. No question of preferring one over the other could arise if his retainer had not extended beyond procuring and assigning the trademarks.
On 13 June 2003 John Bradman wrote to Mr Dwyer in these terms:
Concerning the documents I requested, I am surprised at the suggestion in your letter that there are no documents of instruction or advice concerning the trademarks.
Documents within the rubic of those requested include those advising my father and the family as to the terms of your firm’s engagement and on your firm’s policy where advising potentially competing clients, especially where this may involve the transfer of valuable assets or may affect legal rights as between them.
The documents requested would also include those advising the Foundation as to the terms of your firm’s engagement and letters with, or providing advice to, the Foundation, where they may touch or concern my father’s or the family’s interests. From my review of the documents available to me it would seem that I do not have a full set of relevant documents including those referred to above. This, along with certain delays, has affected my consideration of relevant matters.
John Bradman could only be surprised at the absence of any documents recording advice given by Allens to Sir Donald if he had reason to believe that Allens had indeed given such advice. It is clear that John Bradman had in mind advice concerning his “father’s or the family’s interests” in the “transfer of valuable assets”.
On 22 February 2006 Johnson Winter and Slattery sent a letter of demand to the Bradman Foundation as Trustee of the Bradman Museum Trust, expressing concern over the commercial use of the Bradman name. The letter of demand shows that the executors had considerable knowledge of the nature of Mr Dwyer’s retainer. It is not surprising, having regard to the correspondence between John Bradman and Mr Dwyer in 2002, that the executors asserted in that letter that in or about 1991, Sir Donald and the Trustee retained Allens “to advise on and attend to the registration of Australian and overseas trademarks incorporating the Bradman name, and the assignment of such trademarks and associated goodwill to the Trustee” (emphasis added). The letter asserted that in or about August 1998 Sir Donald and the Trustee instructed Allens “to advise on and to attend to the registration of further trademarks … and the negotiation and drafting of an agreement dealing with the future commercial exploitation … of the Bradman name”.
The letter largely speaks for itself. It can be inferred from its contents that, at the very least, John Bradman believed on reasonable grounds the assertion of fact made in that letter that Allens had been engaged to advise Sir Donald.
Nature of retainer ascertained prior to reading website CV

In his affidavit sworn on 18 November 2008 John Bradman says of the letter of demand to which I have just referred:
I refer to exhibit ‘RM1’ to the Mulvaney affidavit, which is a copy of a letter from Johnson Winter & Slattery to the Foundation dated 22 February 2006. In that letter Johnson Winter & Slattery assert that Allens acted for each of the Foundation and my father in connection with the registration and application for the registration of trademarks and the assignment of those trademarks to the Foundation. Whilst I had sufficient belief to instruct Johnson Winter & Slattery to make such an assertion, I was still not clear as to Allen’s role. Part of my intention in causing that letter to be sent was to “flush out” Allen’s position in relation to their role in relation to my father and his intellectual property.
The concession by John Bradman that he had a “sufficient belief” that Allens had acted as Sir Donald’s adviser to instruct his solicitors to send the letter of 22 February 2006 is significant. Indeed on one reading it concedes the very issue on this application. If John Bradman had a belief that Allens had acted as Sir Donald’s adviser it is irrelevant that he was not “clear” about the extent of Allens role as an adviser. The website CV could not have added any clarity, it claimed no more than that Mr Dwyer had acted as an adviser and gave no further details about his role. If John Bradman was sufficiently certain of the fact and nature of Allens’ engagement to advise Sir Donald for the purposes of sending a letter of demand, it is difficult to see how it can be contended that he had not, by that date, ascertained that fact within the meaning of s 48(3) of the Act.
John Bradman no doubt formed the belief about Allens’ retainer, to which he deposes in that paragraph, at least in large part on the basis of the correspondence to which I have referred. By the time John Bradman instructed his solicitors to send the letter of 22 February 2006, the correspondence to which I have referred showed, beyond any argument, a high degree of certainty that Allens acted as the legal advisers of Sir Donald. There is no reasonable prospect that the executors could establish that they ascertained that Mr Dwyer had acted as Sir Donald’s legal adviser for the first time when John Bradman read the website CV.
In light of the correspondence to which I have referred it is fanciful to imagine that the executors’ case on when John Bradman first ascertained, or came to believe, that Allens acted as Sir Donald’s legal adviser would improve in the course of any oral evidence he, or anyone else, could give at trial. It is impossible to imagine the existence of any documentary evidence that would cast any doubt on the conclusion to which the documentation produced on this application inevitably leads.
The website CV admission is not a material fact
I commence the consideration of this issue with the observation that the executors’ case against Allens is essentially one of omission. The executors’ case is that Allens failed to give advice to, or carry out the instructions of, Sir Donald. The duty to give that advice and carry out those instructions is one which arises from the nature of the relationship between Sir Donald and Allens. Generally, a solicitor who is engaged to gift the valuable property of his or her client to another, is duty bound to advise his or her client about the effect and consequences of that assignment, and the alternative ways in which the wishes of his or her client can be achieved. That is the context in which Mr Dwyer’s silence in the face of the correspondence from John Bradman referring to the assistance he had given to Sir Donald and the unequivocal admission that he had provided legal advice to Sir Donald over a 14 year period preceding his letter of 13 March 2002 must be considered. Allens could hardly hope to escape a finding that they owed a duty to advise Sir Donald on that evidence alone and for that reason the website CV is undoubtedly immaterial.
Even if I am mistaken about the overwhelming case presented by the correspondence, considered in context, the simple fact remains that the admission in the website CV adds nothing to the admission in the letter of 13 March 2002. For that reason too, in its character as an item of evidence, namely an admission against interest, it is beyond argument that the website CV is immaterial.
The Discretion
Given my finding that the executors have no reasonable prospect of establishing the circumstances which enliven the exercise of the discretion to extend time, it is strictly unnecessary for me to decide how that discretion might be exercised. However, it is, I think, appropriate that I express my view on that issue.
For that purpose, I must assume that evidence, which has not been placed before me, will in some way that I have not anticipated, cast enough doubt about Allens’ retainer to make the admission contained in the website CV a material fact. Alternatively, it is necessary to assume that, for some reason that appears to me quite fanciful on the material placed before me, it will be accepted at trial that John Bradman did not have a “belief” that Allens was engaged to advise Sir Donald before reading the website CV and that he ascertained that fact for the first time on so doing. If I were to make those assumptions I could not say that the executors’ case for a favourable exercise of the discretion was unarguable. It can be accepted that having regard to the letter of demand, the executors appear to have treated the website CV as little more than a convenient peg on which to hang their case for an extension of time. However, the prejudice that the estate of Sir Donald would suffer if the extension of time were denied is great. The passage of time will not prejudice Allens’ defence, if it makes any, to the allegation that it owed a duty to give advice to Sir Donald. That issue will be determined largely on the basis of the objective evidence found in the correspondence to which I have referred. True it is that there may be a factual dispute about what oral instructions and advice were given from time to time, but it is impossible, on the material before me, to conclude that Allens has been so prejudiced by the passage of time that the discretion must necessarily be exercised against the executors.
For that reason I would not have dismissed the executors’ common law claims if there were any prospect that they could establish that they had ascertained a material fact within the prescribed time.
Adequacy of the pleading as to loss
Paragraph [32] of the statement of claim alleges that but for the omissions of Allens, Sir Donald and his successor(s) would have retained a contractual right to veto the use of the assigned intellectual property which was of some value. It is difficult to imagine that anything much more than nominal damages would be obtained if an expert report were not provided. In my view there is nothing to be gained by further elucidation of the pleading. The precise quantification of the estate’s loss will become apparent after the provision by the executors of an expert’s report.
Conclusion
I make the following orders:
1That summary judgment be given in favour of the defendants in relation to the claims for breach of retainer, breach of duty and the application for an order under s 48(1) of the Limitations of Actions Act 1936.
2I dismiss paragraph [3] of the defendants application of 8 October 2008.
I will hear the parties on the question of costs.