Gindy v Capital Lawyers Pty Ltd (No 2)
[2021] ACTSC 304
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gindy v Capital Lawyers Pty Ltd (No 2) |
Citation: | [2021] ACTSC 304 |
Hearing Dates: | 10–13, 18, 20–21 April 2017; 22–26 May 2017; 10–14, 17–21 July 2017; 18 September 2017; 2 November 2017; 29–31 January 2018; 1–2, 5–9, 12–16 February 2018; 15 March 2018; 19–22, 26–29 June 2018; 3–6, 10–13, 17–18, 20, 24–27 July 2018, 21–23, 28–31 August 2018; 18–21, 25–28 September 2018; 2, 5 October 2018; 12–15, 20–21 November 2018; 18–19 December 2018 |
DecisionDate: | 17 December 2021 |
Before: | Penfold J |
Decision: | 1. Judgment to be entered for the defendants. 2. The parties will be heard as to costs. |
Catchwords: | CIVIL LAW – PROFESSIONAL NEGLIGENCE – claims made against solicitors in contract and tort (being negligence, breach of trust, breach of fiduciary duty, negligent misstatement, misrepresentation, unconscionable conduct) – all claims determined on facts. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) chs 3, 4; ss 32, 33, 35, 41, 99, 188 Consumer Credit (Queensland) Act 1994 (Qld) Appendix Superannuation Guarantee (Administration) Act 1992 (Cth) |
Cases Cited: | Amaca Pty Ltd v Latz [2018] HCA 22; 264 CLR 505 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; 207 FCR 448 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448 |
Texts Cited: | Butterworths Australian Legal Dictionary (1997) Judicial Commission of NSW, Civil Trials Bench Book < Dictionary Online (2021) < Sedley, Stephen, ‘The Laws of Documents’ in Ashes and Sparks: Essays on Law and Justice (Cambridge University Press, 2011) 228–30 |
Parties: | Laila Gindy ( Plaintiff) Capital Lawyers Pty Ltd ( First Defendant ) David Chen (Second Defendant) Paul Crabb (Third Defendant) |
Representation: | Counsel Unrepresented with M Elmaraazey ( Plaintiff with McKenzie friend) M Walsh SC and K Musgrove ( Defendants ) |
| Solicitors Unrepresented ( Plaintiff ) Boettcher Law ( Defendants ) | |
File Number: | SCC 444 of 2015 |
PART 1: INTRODUCTION
Background
Laila Gindy took action against her former solicitors, Capital Lawyers Pty Ltd and two of their principals, Paul Crabb and David Chen,[1] seeking damages for negligence (and various other failings) in their performance of duties owed to her under several retainers. Those retainers related to three different matters (dealt with in this judgment, although not in the pleadings, by reference to the chronology of the defendants’ involvement with Ms Gindy’s legal matters):
(a)Ms Gindy, who had been employed by a Commonwealth agency known as Questacon, was successful in a compensation claim against the agency’s workers’ compensation insurer, Comcare. That claim had been conducted on her behalf by her husband, then practising as a solicitor. In July or August 2010, after Mr Elmaraazey ceased to practise, Ms Gindy engaged Capital Lawyers to act for her in various matters arising from the AAT determination that she was entitled to compensation (the Comcare matter).
(b)In September 2010, Ms Gindy suffered personal injury in a motor vehicle accident, and engaged Capital Lawyers to act for her in proceedings against the other driver for damages in respect of that injury (the MVA matter).
(c)When Ms Gindy fell into arrears in her mortgage repayments in respect of the family home, the lender threatened to foreclose on the loan and sell the property to meet the outstanding amounts; in February or March 2011, Ms Gindy engaged Capital Lawyers to advise her in connection with the threat of foreclosure (the foreclosure matter).
Ms Gindy was dissatisfied with the outcome of each matter. The details of her dissatisfaction are not easy to discern, but it is clear that in each case Ms Gindy considered, at least:
(a)that she should, at the end of each matter, have been in a better financial position than she ultimately was;
(b)that the solicitors should have done more, or perhaps acted differently, in dealing with certain aspects of her claim; and
(c)that the matter had been handled in such a way as to cause her distress.
The complaints and claims made by Ms Gindy in the current proceedings are respectively referred to as the Comcare complaint, the MVA complaint and the foreclosure complaint.
The original Statement of Claim sought damages quantified in the Originating Claim at $850,000, plus a variety of unquantified damages including aggravated and exemplary damages. The Amended Statement of Claim added another $20,000 in quantified damages.
Causes of action
The Amended Statement of Claim relied on breach of contract and negligence.
It also pleaded breach of trust, breach of fiduciary duty, negligent misstatement, misrepresentation, unconscionable conduct, and misleading or deceptive conduct (at [27] below).
In each of the three complaints, the Amended Statement of Claim pleaded:
(a)a retainer between Ms Gindy and two of the defendants, including a term that “the defendants would use all reasonable care, skill and diligence in and about the performance of the retainer;
(b)that the defendants owed Ms Gindy a duty of care requiring them to use all reasonable care, skill and diligence in the provision of professional services to her;
(c)that the content of the duty of care was affected by Ms Gindy’s disability, which meant that she was not in a position to properly chase her entitlements;
(d)that the defendants had failed to use all reasonable care, skill and diligence as required; and
(e)that Ms Gindy suffered loss and damage.
In each of the three complaints, the Amended Statement of Claim also set out other specific terms of the relevant retainer, and claimed breaches and loss and damage.
Despite Ms Gindy’s occasional outbursts claiming fraud by the defendants, neither the pleadings nor the evidence raised any real possibility that the asserted failures by the defendants were other than negligent.
Factual issues
The issues in the case are, however, largely factual. Many of the pleaded facts are disputed, and many of them (disputed or undisputed) do not seem to have the significance attributed to them by the plaintiff. Accordingly, it has been necessary to record, and make findings about, a large volume of evidence reaching any conclusions about the legal significance of the evidence.
Organisation of judgment
A number of preliminary issues relating to or arising in the proceedings need to be understood, or resolved, if the discussion of the evidence and the complaints is to make any sense. They are identified at [13]–[86] below, and are expanded on in the Appendices to this judgment.
The rest of the judgment is organised as follows (the three complaints are dealt with in the order in which Capital Lawyers was retained in the several matters):
Part 2. Summary of findings and conclusions (at [87]–[110] below).
Part 3. The Comcare complaint (at [112]–[1661] below).
Part 4. The MVA complaint (at [1664]–[2103] below).
Part 5. The foreclosure complaint (at [2115]–[3209] below).
Part 6. Common issues relevant to two or more complaints (at [3211]–[3372] below).
Part 7. Appendices (at [3373]–[3743] below).
Preliminary matters
The plaintiff and her family (Appendix A)
The plaintiff
Laila Gindy grew up, and undertook tertiary education, in Egypt. She had lived in Australia for some years before the events to which this judgment relates. Her English was more than adequate to enable her both to understand the court proceedings and to give evidence on her own behalf. Her written English was generally adequate.
The “McKenzie friend”
Ms Gindy was, strictly speaking, unrepresented, but her case (including, apparently, the drafting of the pleadings and, certainly, the preparation of the voluminous submissions) was, in effect, conducted on her behalf by her husband, Mamdouh Elmaraazey, as her “McKenzie friend”, pursuant to orders made in September 2016, some months before the hearing of her claim began.
Mr Elmaraazey had legal qualifications, but no longer practised as a lawyer. During the period dealt with in this judgment, and until some way through the hearing of this matter, Mr Elmaraazey and the ACT Law Society were engaged in litigation in the ACT Civil and Administrative Tribunal (ACAT), and then in the ACT Supreme Court, about Mr Elmaraazey’s right to practice. Capital Lawyers were acting for Mr Elmaraazey in that litigation (the ACAT matter), and for parts of it Capital Lawyers had briefed Julian Burnside QC and Tim Crispin.
Impact of McKenzie friend’s involvement
Mr Elmaraazey’s legal training, and Ms Gindy’s relative lack of legal knowledge and her volatility, meant that there were some benefits in having Mr Elmaraazey assisting Ms Gindy in conducting the case. However, there were also disadvantages.
More material about the plaintiff, and about the McKenzie friend, his role in the trial, and his role in any further proceedings in this court, is at Appendix A.
The plaintiff’s son
During some or all of the period when the defendants were acting for Ms Gindy in one or more of the three matters, her son (the son), also a qualified lawyer, was working for Capital Lawyers as a solicitor, and he was involved in minor ways with the progress of Ms Gindy’s matters. By the time of the trial it appeared that Ms Gindy and the son were estranged, and there was some evidence suggesting that this was at Ms Gindy’s instigation. There were regular suggestions made on behalf of Ms Gindy that it might be necessary to call the son to give certain evidence, but in the end the son did not give evidence, and the evidence he might have given would not in my view have had any significance to the outcome of these proceedings.
The defendants (Appendix B)
The named defendants are the incorporated body, Capital Lawyers Pty Ltd (Capital Lawyers),[2] and the two solicitors, David Chen and Paul Crabb.
At the time of the events to which the plaintiff’s claims relate, the second defendant, David Chen, was an employed solicitor at Capital Lawyers, but by the time the hearing of this matter began he was a director of the company.
The third defendant, Paul Crabb, was at all relevant times a director of the company.
In much of the evidence, and accordingly at times in this judgment, the terms “director” and “partner” are used interchangeably. The differences between directors and partners have no significance in the current matter.
In the Further Amended Defence, the defendants admit that Ms Gindy retained Capital Lawyers, but deny that the two individual solicitors were retained. This implied that only Capital Lawyers was properly a defendant.
For reasons set out at Appendix B, I have concluded that the only proper defendant in this matter is Capital Lawyers, and I shall deal with the pleadings as if they refer to one defendant only, albeit treating “Capital Lawyers” as a plural.
The evidence, and this judgment, accordingly contain numerous references to Mr Crabb and Mr Chen as people involved in Capital Lawyers’ performance of the retainers; in the judgment, they are not referred to as defendants in their own capacity.
Pleadings and particulars (Appendix C)
Amended Statement of Claim
The general impact of the Amended Statement of Claim (filed by leave in November 2017) is summarised at Appendix C. Its contents are dealt with in more detail in connection with the various claims pleaded.
The Amended Statement of Claim is repetitive, not well-drafted, and not always coherent. In particular, the basis on which liability is asserted involves a scattergun approach, starting with breaches of contract and negligence then asserting (more or less randomly and sometimes only in headings) breach of trust, breach of fiduciary duty, negligent misstatement, misrepresentation, unconscionable conduct, and misleading or deceptive conduct. However, there was no sensible attempt to plead material facts making up any of those other causes of action. Accordingly, those extra grounds of liability are generally not mentioned further, except where it has seemed appropriate to deal with specific facts pleaded in connection with them.
Further Amended Defence
A Further Amended Defence was filed in December 2017; in it, the first defendant admits some of the pleadings, while the second and third defendants deny most of them.
Reply to Defence
A Reply to the Defence had been filed in July 2016, but apparently became irrelevant before the amendment of the Statement of Claim. Its impact is summarised at Appendix C.
No further Reply was filed after the Further Amended Defence was filed.
Significance of pleadings and particulars
The impact of the pleadings in confining the plaintiff’s claims, the scope for going beyond the pleadings having regard to the evidence that emerged, and the significance of particulars, were mentioned in the parties’ submissions. These issues are noted in general terms at Appendix C.
Summary of approach
Having regard to the consideration of these matters at Appendix C:
(a)I have largely determined this case by reference to the evidence rather than the pleadings, making as much sense as I could of the nature of the plaintiff’s pleaded complaints by reference to what emerged from that evidence; and
(b)I reject Mr Elmaraazey’s claims that, at any point, the plaintiff’s pleadings would have been more useful, or her complaints would have been more comprehensible, if the defendants had sought more particulars than they did.
Evidence (Appendix D)
The evidence that emerged in the hearing raised many different factual issues. In some cases, the issue was whether a particular event took place at all. In other cases, there was no dispute that certain events took place, and the dispute was about the details of the events. Then there were disputes about the significance or characterisation of those events and their details. Finally, although the relevance in the proceedings of some of those factual issues was clear, for other issues the real question was whether the event or its implications mattered at all in the current context, or whether its part in the proceedings reflected confusion, misunderstanding, intentional timewasting, or something else.
Oral evidence
Oral evidence was given at length, mainly by Ms Gindy. The value of much of that evidence was not clear during the trial, and in general the written closing submissions provided by Mr Elmaraazey on behalf of Ms Gindy did not reveal that evidence given in her case had any more significance than had been apparent in the course of the hearing.
Only the plaintiff called witnesses; they were:
(a)Laila Gindy, the plaintiff;
(b)David Chen and Paul Crabb, the individual defendants;
(c)Robert Reis, Professional Standards Manager, ACT Law Society; and
(d)Megan De Vries, from the Florey Medical Centre (the FMC), the general practice attended by Ms Gindy during all relevant periods.
Ms Gindy called Mr Chen and Mr Crabb to give evidence, because there was no guarantee that they would give evidence in their own case.
In relation to each of the two defendants, I granted an application by Mr Elmaraazey for leave under s 38 of the Evidence Act 2011 (ACT) to cross-examine the witness about specific matters as to which, Mr Elmaraazey said, he had given “unfavourable” evidence (the resulting questioning is referred to in this judgment as s 38 cross-examination).
The assessment of witnesses and their evidence is discussed in more detail at Appendix D.
Documentary evidence: general comments
A large volume of documentary evidence was exhibited during the trial (221 plaintiff’s exhibits and 115 defendants’ exhibits). Almost all of Sedley's Laws of Documents (at Appendix D.2) were satisfied by at least one and often by many of the exhibits; some of the exhibits suggested new laws that might be added.
Unsurprisingly, there were objections to the admission of various documents. What was more surprising was that some of the more strenuous (and time-consuming) objections, mainly made on behalf of the plaintiff, related to documents whose contents appeared to be of minor significance in the overall scheme of things.
More comments about the documentary evidence are at Appendix D.
Documentary evidence: “expert” reports
A lot of material prepared by doctors and other medical professionals about Ms Gindy’s physical and mental health was admitted into evidence in various forms for various reasons, but in each case subject to an order under s 136 of the Evidence Act excluding the use of the medical material as evidence of the truth of its contents. This approach is explained at Appendix D.
That order was made because the plaintiff had chosen not to comply with an order made by Mossop AsJ on 7 October 2016 setting a date by which the plaintiff was required to serve any expert report to be relied on. That in turn meant that the defendants had no opportunity to seek medical evidence in response, or to require Ms Gindy to be examined by other experts.[3]
Mr Elmaraazey sought to explain the decision not to serve the various reports as expert reports by reference to an apparently general comment attributed to his Honour (but not recorded in the file) to the effect that documents already in the possession of the other party need not be served.
Capital Lawyers’ files contained a large volume of medical and other assessments of Ms Gindy’s physical and mental health, dating back at least to 2006. Possibly his Honour expected the defendants to guess which of those many assessments might be relied on by Ms Gindy and thus which ones might need to be met with other assessments obtained by the defendants. Mr Elmaraazey’s fairly cursory attempts at disputing my exclusion of the various assessments from being available as expert evidence suggested that he was well aware that Mossop AsJ had not intended to permit the plaintiff to ambush the defendants with unchallenged expert reports.
It seems that Mr Elmaraazey had hoped to rely on the various medical reports to establish Ms Gindy’s disability and perhaps her “vulnerability”.
Mr Elmaraazey’s submissions, to the effect that none of the reports concerned was a “medical report”, are mentioned at Appendix M.
Evidentiary onus
In his Reply, Mr Elmaraazey made submissions about the evidentiary onus and how it might shift during a trial. Those submissions are considered (and largely rejected) at Appendix D.
Legal issues (Appendix E)
Several legal issues raised by the parties were generally relevant in this matter, and are usefully discussed once rather than in the context of the several different matters. One other legal issue, being the admissibility of bank records produced in relation to the foreclosure complaint, is also dealt with at Appendix E.
Wrongs Act and claims involving negligence
Section 41 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act), located in ch 4 of that Act, is relevantly as follows:
41Application—ch 4
(1) This chapter applies to all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise.
Even though Ms Gindy’s principal claims are described as relating to breaches of contract, they claim breaches of obligations to use “all reasonable care, skill and diligence in and about the performance” of the several retainers, and breaches of a duty of care to use “all reasonable care, skill and diligence in the provision of … professional services” to Ms Gindy. Counsel noted that certain of the Wrongs Act provisions relating to negligence thus apply to all Ms Gindy’s claims (except to the extent that Ms Gindy proves, in relation to some of the pleaded claims, that the defendants acted with the intention, or recklessly indifferent to the possibility, of causing harm to Ms Gindy).
However, since there is no evidence before me that even raises the possibility that the defendants intended to harm Ms Gindy, or were recklessly indifferent to that possibility, in any of the matters, I have not given any further consideration to that issue.
Accordingly, both the contract claims and the tort claims are to be determined in accordance with Ch 4 of the Wrongs Act, which extends certain provisions about tortious negligence to claims of negligent breach of contract (at [50]–[55] and Appendix E.1 below).
The Wrongs Act also deals with the availability of damages for mental harm in some negligence claims.
Further discussion of the significance of the Wrongs Act is at Appendix E.1.
Signed documents
In several different contexts, Ms Gindy denied having signed documents that were relevant to her complaints. The significance of signatures on documents is considered at Appendix E.2.
Exemplary and aggravated damages
In each of the three matters, Ms Gindy claimed exemplary and aggravated damages. The availability of such damages is considered at Appendix E.3.
Briginshaw principles
In making findings of fact, I have had regard to the Briginshaw principles (at Appendix E.4).
Loss of a chance
Counsel submitted, in relation to some of Ms Gindy’s claims, that even if the defendants were shown to have been negligent, their negligence would only have caused Ms Gindy to lose a chance, and in such a case she would only be entitled to damages if she also proved that the lost chance was of some value.
Mr Elmaraazey disputed this submission with some force; his response to counsel’s submission is considered at Appendix E.5.
Retainers, costs agreements and file notes (Appendix F)
In relation to each of the three claims, the Amended Statement of Claim identified the claim as based initially on “Breach of Contract/Agreement”, and pleaded that by an agreement entered into at or around a particular time, Ms Gindy had “retained and employed” the specified defendants “to advise her and act for her” in specified proceedings. In each case, the pleadings thereafter referred to “the agreement”.
Thus, the pleadings invoked the concept of a solicitor’s retainer, and relied on it in particular to assert the fundamental claim against the defendants, in the following form:[4]
It was a term of the agreement, implied at law, that the defendants would use all reasonable care, skill and diligence in and about the performance of the retainer. The defendants failed to do so and the plaintiff has suffered loss and damage.
To the extent that the subject matter of the relevant retainer could be identified, I do not understand there to be any dispute that the implied terms included an obligation on the solicitors to “use all reasonable care, skill and diligence in and about the performance of the retainer”.
Some evidence was given, and extended submissions were made, about:
(a)the nature of a retainer and its relationship (if any) with a costs agreement; and
(b)the approach to be taken to evidence of the contents of a retainer, especially where there is a conflict between the evidence of the solicitor and of the client.
For reasons set out at Appendix F, I have concluded that:
(a)If an agreement between the solicitor and the client to a particular effect has been established, it is unnecessary, at least for the purposes of these proceedings, to consider whether it was part of a retainer or part of a related agreement between the parties to the retainer; and
(b)as explained by Burns J in Read v Burns [2017] ACTSC 184 at [224]:
The terms of the retainer between the plaintiff and the … defendant are to be determined like any other disputed fact. The plaintiff has the onus of proving not only that there was such a retainer … but also the terms of that retainer. Whether the plaintiff has discharged that onus depends upon an analysis of the evidence relevant to that issue.
Submissions (Appendix G)
Lengthy written submissions were provided by both parties. Oral submissions were made only by counsel for the defendants.
The plaintiff’s submissions (prepared by Mr Elmaraazey) were rarely helpful to the plaintiff’s cause.
Further comments about the submissions are at Appendix G.
Ms Gindy’s financial difficulties (Appendix H)
Although the three different complaints were treated separately in the plaintiff’s case, each of the three matters in which Capital Lawyers acted for Ms Gindy progressed during 2010, 2011 and 2012. It is difficult to understand these proceedings properly without being aware of the contemporaneity of events relating to each of the three matters, and of certain events affecting the financial position of Ms Gindy and her husband during a period of more than seven years before and including those three years.
A chronology incorporating events between 2006 and 2012 is at Appendix H.
Ms Gindy’s superannuation arrangements (Appendix I)
By virtue of her employment at Questacon, Ms Gindy was a member of the Public Sector Superannuation Scheme (PSS Scheme). Over several years while she was employed, she and her employer contributed to that superannuation fund, but after she stopped work, and the family’s financial position deteriorated for that and other reasons, she sought on more than one occasion an early release of some of her accumulated superannuation.
During the period relevant to these proceedings, there had been several different entities involved in the management the superannuation fund (or perhaps a single entity susceptible to re-branding). There are documents in evidence referring to ARIA, CSC, Comsuper, APS Member Benefits and the PSS, but no issue in this case turns on which particular entity was involved at any particular time. Accordingly, in this judgment, I refer to the body or bodies responsible for the PSS as “the PSS”, and to Ms Gindy’s account in that fund as her “superannuation”; any possible confusion resulting from the use of different terms in relevant documents is addressed at the relevant point.
Ms Gindy’s various dealings with the PSS, and the state of her superannuation entitlements from time to time, were in issue in connection with the Comcare and the foreclosure matters, but took on far more significance in the eyes of Ms Gindy and Mr Elmaraazey, and possibly also of the defendants, than seemed to me to be justified by their real impact in the proceedings.
Further material about Ms Gindy’s superannuation (in particular about her PSS statements) is dealt with at Appendix I.
Ms Gindy’s disability (Appendix J)
In each of Ms Gindy’s three claims, there are two sets of pleadings based on the proposition that Ms Gindy was affected by disability, as follows:
(a)pleadings that the defendants were aware that Ms Gindy “was, and still is” a person described as “a person with disability” or “a disabled person”[5] and as such, “would not be in a position to properly chase her entitlements”[6] and
(b)pleadings following immediately after claims that the defendants were aware that Ms Gindy was “a person with disability”, being that the conduct of the defendants “had caused, and continues to cause, [her] severe distress, duress, pain and suffering”.[7]
It is not clear whether the claim of “distress, duress, pain and suffering” is intended to rely on the disability claim immediately preceding it in the Statement of Claim.
The nature of the disability, and its general relevance, are considered at Appendix J. I have concluded as follows:
(a)that Ms Gindy did, from around 2009 (and probably at least until the end of 2012), have a disability that rendered her eligible for a Commonwealth Disability Support Pension;
(b)that from 2010 Capital Lawyers (through Mr Crabb and possibly Mr Chen) were generally aware that she had suffered some psychological and possibly psychiatric problems since 2006, that by early 2012 Mr Crabb at least was concerned about Ms Gindy’s mental health and that by mid-May 2012 at the latest Mr Crabb was aware that Ms Gindy was subject to a guardianship order; and
(c)that in the absence of any relevant evidence, I cannot be satisfied that (except for the period of the guardianship order, during which she was at least affected by a legal disability) Ms Gindy had any disability relevant to her capacity to “properly chase her entitlements”.
I also note that during the period of the guardianship order (which began after the MVA matter, the foreclosure matter, and most aspects of the Comcare matter had been finalised) Ms Gindy’s interests seem to have been appropriately protected, especially having regard to the facts:
(a)that the only outstanding Comcare matter related to the recovery of legal costs;
(b)that Ms Gindy’s only “entitlement” as to her legal costs related to a reasonable expectation that she would not be left out of pocket in respect of her legal costs (except for the possibility that she would remain liable for the difference between the party/party fees Comcare was ordered to pay and the solicitor/client fees charged by her second and third solicitors in the proceedings against Comcare, being Mr Elmaraazey and Capital Lawyers);
(c)that in the event:
(i)Capital Lawyers’ fees, and all outstanding disbursements, were paid in full, with authority from the Public Advocate, from the amount negotiated with Comcare; and
(ii)the remaining amount was all, on Ms Gindy’s authority, paid to Mr Elmaraazey (her previous solicitor).
Letters from Ms Gindy (Appendix K)
Ms Gindy wrote to Capital Lawyers, or to one or both of Mr Chen and Mr Crabb, on numerous occasions from 2010. Many of those letters related to only one of the three matters, and are dealt with, as relevant, in consideration of that matter.
Several of the later letters ranged over two or all three matters addressed in the pleadings. They are set out, or summarised, at Appendix K.
Ms Gindy’s letters were not easy to read, to quote, or to discuss. Many of them seemed to have been written in the grip of strong emotions, and possibly for that reason her handwriting was often barely legible, and her spelling and grammar were also problematic. Where it seemed necessary to convey not just the contents of the letters but also the emotions affecting the writing of the letters, extracts from the letters have been quoted verbatim, but in other cases extracts have been to a greater or lesser extent “tidied up” in terms of spelling and grammar.
Capital Lawyers’ file numbers (Appendix L)
Capital Lawyers had opened at least one file for each of the three matters in which they acted for Ms Gindy, as well as a file for Mr Elmaraazey’s ACAT matter (at [15] above) in which Capital Lawyers were also acting. Relevantly, funds were moved from one file to another (or more accurately, from the trust account for one file to the trust account for another file) on several occasions during the period dealt with in this judgment. The files were usually only identified by file numbers, and the various file numbers are set out at Appendix L.
Case management and related matters (Appendix M)
Missed opportunity for intensive case management
The history of this matter from the initial filing in 2015 indicates that it would have benefited from some intensive case management, as noted at Appendix M below.
Matters relevant to costs orders
Amendments of the Statement of Claim and the Defence were made some months into the hearing; consideration of costs orders was deferred until judgment was given in the main proceedings. Relevant aspects of those amendments are mentioned at Appendix M below.
Defined terms used in judgment (Appendix N)
Terms defined in this judgment are listed at Appendix N.
Bias application
Both Ms Gindy and Mr Elmaraazey regularly threatened applications for me to disqualify myself on the grounds of bias. Eventually I set a deadline for Ms Gindy to make the threatened bias application, and ordered that any bias application made after that deadline could not be based on any aspect of the hearing that took place before that deadline. Shortly thereafter, a bias application was made and dismissed (Gindy v Capital Lawyers(No 1) [2021] ACTSC 303). No further application was made.
PART 2: SUMMARY OF FINDINGS AND CONCLUSIONS
In this case, the plaintiff was obliged to establish her case on the balance of probabilities.[8] The following summary identifies my significant findings, and, at a high level, my conclusions about each of Ms Gindy’s complaints.
Having regard to the evidence (and occasionally the submissions) that have been put before me, the essence of the three complaints can be summarised as follows:
(a)Ms Gindy had certain entitlements under the law (whether to compensation for a workplace injury, damages for personal injury, or rights under a mortgage), and retained Capital Lawyers to act for her in pursuing or protecting those rights
(b)Capital Lawyers’ work on her behalf did not produce what Ms Gindy believed would have been an acceptable outcome (being as much compensation or as much in damages as she had hoped for, or a satisfactory outcome in relation to her mortgage), and nor had Capital Lawyers treated Ms Gindy appropriately.
(c)The unsatisfactory outcome, and presumably the inappropriate treatment, were attributable to Capital Lawyers’ negligence (sometimes including negligent breaches of the terms of the retainer);
(d)Capital Lawyers’ negligence had caused Ms Gindy:
(i)economic loss; and
(ii)some or all of stress, distress, duress, and pain and suffering; and
(e)Capital Lawyers were accordingly liable to Ms Gindy for various kinds of damages as specified in the pleadings.
The Comcare complaint
Under consent orders made by the AAT, Ms Gindy was entitled to compensation from Comcare, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), in respect of losses caused by a workplace injury. That compensation included payment of out-of-pocket expenses incurred in connection with the injury, recompense for wages lost as a result of the injury, and the costs (on a party/party basis) of the legal action she had taken that ended with the AAT making the consent orders recognising her right to compensation.
Ms Gindy retained Capital Lawyers to act on her behalf in recovering that compensation.
Ms Gindy claimed:
(a)that Capital Lawyers had breached certain terms of the retainer, and
(b)that as a result of Capital Lawyers’ negligent work, the outcome of the retainer had been unsatisfactory.
In particular, Ms Gindy asserted:
(a)that Capital Lawyers had not recovered all her out-of-pocket expenses for her and had not recovered the proper amount of her lost wages for her; and
(b)that what Capital Lawyers had recovered for the costs of her legal action should have been paid to her rather than the people who had provided the various services (including solicitors, counsel, and doctors).
Ms Gindy also claimed that she had given Capital Lawyers other instructions which they had failed to carry out at all, being:
(a)to recover superannuation benefits in respect of the lost wages for which she had received compensation;
(b)to pursue her entitlement to an invalidity pension in connection with her membership of the PSS; and
(c)to commence action in a court to recover the proper amount of her lost wages.
The pleadings were not completely clear about how the economic loss identified by Ms Gindy had been calculated, or how it had been caused by Capital Lawyers’ negligence.
Nor did they give any clues about the “distress, duress, and pain and suffering” said to have been caused by Capital Lawyers’ negligence, or about the basis on which damages, exemplary damages or aggravated damages might have been available to Ms Gindy.
I have made findings, and reached conclusions, as follows:
(a)I am not satisfied that Capital Lawyers had failed to recover for Ms Gindy any out-of-pocket expenses that:
(i)had been incurred in connection with her workplace injury;
(ii)had been brought to Capital Lawyers’ notice (whether through being “in the boxes” or otherwise); and
(iii)were, on the basis of the information available to Capital Lawyers, recoverable from Comcare under the SRC Act.
(b)I am not satisfied that Mr Crabb (on behalf of Capital Lawyers) was negligent in advising Ms Gindy that, where claims for medical expenses had been rejected by Comcare, she could seek further information from her doctors about whether the expenses related to treatment provided in connection with her workplace injury, and I am not satisfied that Ms Gindy’s unwillingness to take on this task was related to any disability rather than to misconceptions about what Capital Lawyers had been retained to do and about who should, or might, bear the costs of whatever they were required to do.
(c)I am not satisfied that Capital Lawyers had failed to recover the appropriate amount of compensation in respect of Ms Gindy’s lost wages caused by her workplace injury.
(d)In particular I am not satisfied that the material made available to Capital Lawyers by Comcare and Questacon, and by Ms Gindy in oral instructions but also in her signed statement (even if that material had been supplemented by sworn evidence given by her), could ever have established, in any court or tribunal applying any version of the rules relating to evidence, that she had worked 56 hours a week in any period before her workplace injury that could legitimately have been used to calculate her lost wages. Accordingly, I am also not satisfied that Mr Crabb had ever offered, or accepted instructions, to pursue Ms Gindy’s wage claim in a court.
(e)I am not satisfied that Capital Lawyers ever accepted instructions to pursue a superannuation benefit in respect of the amount Ms Gindy recovered as compensation for lost wages, or that any such benefit might have been available if pursued.
(f)I am not satisfied that Capital Lawyers ever accepted instructions to pursue any entitlement that Ms Gindy might have had to an invalidity pension in connection with her membership of the PSS Scheme, or that any such benefit might have been available if pursued.
(g)I am not satisfied that Capital Lawyers’ negotiation with Sparke Helmore and Comcare of Ms Gindy’s party/party costs of the AAT Review was in any way inadequate or unsatisfactory, or that it resulted in an inadequate payment from Comcare for Ms Gindy’s legal costs and disbursements.
(h)I am not satisfied that Capital Lawyers’ disbursement of the amount received from Comcare for legal costs and disbursements was in any way inadequate or unsatisfactory or not in accordance with Ms Gindy’s authority (albeit that authority for some payments was given by the Public Advocate on her behalf and that Ms Gindy subsequently sought to withdraw authority she had given for other payments).
(d)The losses claimed by Ms Gindy are set out at [160] below. It follows from my conclusions at (c)–(h) above that Ms Gindy has not established her claims for “proper pay” of around $30,000, superannuation totalling around $280,000, or unrecovered medical expenses of $25,000.
(i)Ms Gindy’s claim that Capital Lawyers received $56,000 of “Plaintiff’s money” from the Public Advocate is simply nonsense, in that the Public Advocate never had that money.
(j)Nor was the $56,000 “Plaintiff’s money” anyway, except to the extent that it was money to be spent on the legal costs and disbursements of the AAT Review for which Ms Gindy was liable, and with one qualification that was how it was disbursed.
(k)A substantial part of the $56,000 was disbursed, with the authority of the Public Advocate while the guardianship order was in force, to pay AAT Review disbursements (mainly for medical reports), counsel’s fees, and Capital Lawyers’ fees.
(l)The remainder was disbursed, on Ms Gindy’s own instructions, to or to the benefit of her husband and former solicitor, Mr Elmaraazey, after which Ms Gindy had no further liabilities in relation to the legal costs and disbursements of the AAT Review. As noted at [1219]–[1222] and [1233]–[1241] below, that remainder reflected amounts of $4,500 and $10,000 previously paid to Maurice Blackburn and to counsel before Mr Elmaraazey took over as Ms Gindy’s solicitor, and the evidence was vague and inconsistent about which of Ms Gindy and Mr Elmaraazey had actually provided those funds. Accordingly, I am not satisfied that Ms Gindy was not personally out of pocket as a result of authorising the transfer of the funds to or to the benefit of Mr Elmaraazey. However (even though Capital Lawyers had an interest in the ultimate destination of those funds, being the legal costs of Mr Elmaraazey’s ACAT matter) I am not satisfied, and nor is it pleaded, that Capital Lawyers was somehow required to intervene in the financial arrangements between Ms Gindy and Mr Elmaraazey to ensure that the money disbursed to Mr Elmaraazey on Ms Gindy’s authority was properly allocated between Ms Gindy, their client in that matter, and her husband, their client in another matter (at [15] above).
(m)It is possible that “Legal fees which were not recovered”, estimated at $20,000, reflected the difference between the costs claim of just over $74,000 originally put to Comcare and the $56,000 eventually agreed with Comcare.[9] Given that I have found no particular failings in Capital Lawyers’ conduct of the negotiations with Comcare over the legal costs, there is no basis for concluding that the higher amount should have been recovered by Capital Lawyers, and therefore I am not satisfied that this claim describes an economic loss suffered by Ms Gindy.
(n)I have no idea what was intended by the references in the pleadings to “Legal fees retained by the defendants” and “Disbursements which were not recovered”, each of which is quantified as “Not exactly known how much”. The only legal fees “retained” by the defendants were identified in a Capital Lawyers invoice and receipt, and came out of the $56,000 which Ms Gindy apparently also claims. There is no evidence that Ms Gindy remained responsible for any unpaid disbursements after the final distribution of the costs settlement, so the only sense I can make of the claim is that it reflects Ms Gindy’s belief that money recovered for her disbursements was also effectively hers to distribute as it suited her (eg at [217], [558], [1142(a)], [1163], [1245], [1289(b)] and [1515] below).
(o)As to Ms Gindy’s various requests for information about the progress of the Comcare matter:
(i)I am satisfied that many of her requests were responded to in one way or another, and that information about various aspects of the Comcare matter was provided to Ms Gindy as Capital Lawyers’ work progressed;
(ii)I am not satisfied that Capital Lawyers inappropriately refused or failed to comply with any of Ms Gindy’s requests for information; and
(iii)I am not satisfied that Ms Gindy suffered any loss or damage as a result of Capital Lawyers’ approach to her requests for information.
(p)Having regard to those findings and conclusions, I am not satisfied that there is any basis on which the defendants should be ordered to pay damages of any kind to Ms Gindy in respect of their handling of the Comcare matter.
The MVA complaint
Ms Gindy sought compensation for the consequences of a motor vehicle accident in which she had been blameless.
She retained Capital Lawyers to act on her behalf in recovering damages from NRMA, the insurer of the other car involved in the accident. The proceedings were settled with NRMA, at a settlement conference involving Mr Chen and counsel briefed by Capital Lawyers, for $60,000 plus legal costs. Ms Gindy agreed to contribute $5,000 from her damages to Capital Lawyers’ costs. After the conference, Capital Lawyers negotiated with NRMA about legal costs and obtained a payment of nearly $17,000.
Ms Gindy claimed:
(a)that Capital Lawyers had breached certain terms of the retainer;
(b)that as a result of Capital Lawyers’ actions or failures to act, the outcome of the proceedings against NRMA had been financially unsatisfactory in various ways;
(c)that Capital Lawyers’ conduct of the proceedings had distressed Ms Gindy; and
(d)that Capital Lawyers had failed to account to Ms Gindy for various amounts obtained or paid in relation to the matter.
I have made findings, and reached conclusions, as follows:
(a)I am satisfied that the MVA Retainer Letter and the MVA Costs Agreement were as shown in Exhibits A and G.
(b)I am not satisfied that, before the settlement conference, Mr Chen had told Ms Gindy that:
(i)the fees and disbursements of the matter would be fully paid by NRMA;[10]
(ii)Capital Lawyers would recover for Ms Gindy all disbursements incurred in connection with the matter, and would reimburse Ms Gindy for all disbursements so incurred;[11] and
(iii)the matter would be settled for $60,000 plus all her legal costs and disbursements.
(c)I am satisfied that at one point in the settlement conference, Mr Chen told Ms Gindy that the solicitor/client costs component deducted from her damages might be up to $10,000 but that he would “try to do better”, and that by the end of the negotiations she had agreed to settle for $60,000 in general damages from which would be deducted $5,000 for legal fees and disbursements and nearly $5,000 for medical expenses already paid by NRMA.
(d)I am also satisfied that at some point, probably during the settlement conference but at least before she signed the Settlement Instructions, Ms Gindy had begun to think of the impact of the settlement as $50,000 for her and $10,000 for Capital Lawyers.
(e)I am satisfied that, in thinking about the settlement that way, Ms Gindy had completely overlooked several important matters.
(f)I am also satisfied, however, that those important matters had been mentioned during the settlement conference, apparently during the discussion recorded in Mr Chen’s file note about whether the “final offer” of $60,000 should be accepted; they were:
(i)the medical expenses already met by NRMA and Medicare (nearly $5,000), which were to be recovered from the damages amount;
(ii)the legal disbursements required to get Ms Gindy’s claim as far as the settlement conference (medical reports costing nearly $5,000, and counsel’s fees of $2,200); and
(iii)Capital Lawyers’ entitlement under the MVA Costs Agreement to a contribution to its fees, those fees having been estimated during the settlement conference at over $16,000.
(g)I am not satisfied that Ms Gindy’s failure to appreciate that the total “costs” of the accident and her proceedings were in the order of $27,000 (rather than $10,000) was caused by any failure on the part of Mr Chen.
(h)I am not satisfied that Mr Chen had ever put to Ms Gindy that, after payment of the $50,000 into “Ms Gindy’s pocket”, the remaining $10,000 (and only $10,000) would go to Capital Lawyers, let alone that Capital Lawyers would meet all outstanding liabilities from it.
(i)I am not satisfied that Ms Gindy’s misconceived belief about the allocation of the $60,000 reflected any kind of agreement between her and Capital Lawyers such that she had any basis for complaining when she discovered that Capital Lawyers had not in fact been left with only $10,000 with which to pay over $12,000 in debts, and nothing at all for its own professional fees.
(j)I am satisfied that the cost of Ms Gindy’s accident and the resulting legal proceedings had been around $27,000, that she had not been charged a total of $32,043.47 for legal costs and disbursements,[12] but that:
(i)she had been “charged” nearly $5,000 for medical treatment (originally paid for by NRMA and Medicare), a total of roughly $17,000 by Capital Lawyers and counsel for legal services, and nearly $5,000 by the providers of the various medical reports needed for the proceedings;
(ii)the nearly $5,000 for medical treatment, and $5,000 for legal fees, had come out of her general damages; and
(iii)the remaining nearly $17,000 had been paid by NRMA to Capital Lawyers, without any deduction from her damages.
(k)I am satisfied that in late March 2012 Capital Lawyers provided Ms Gindy with a cheque for $37,466.33, and that this represented the remainder of the $60,000 in damages after deduction of:
(i)the $5,000 for medical treatment and her $5,000 contribution to Capital Lawyers’ charges,
(ii)the $6,000 Medicare deduction (later almost fully repaid by Medicare); [check form of agreed facts]
(iii)the $5,000 advance payment to Ms Gindy; and
(iv)the transfer, authorised by Ms Gindy, of nearly $2,000 to pay an outstanding account on Capital Lawyers’ file for the foreclosure matter.
(l)I am not satisfied that the FMC invoice for $255, brought to Ms Gindy’s attention in 2014, had related to treatment provided to Ms Gindy in connection with the motor vehicle accident, or that Capital Lawyers had been aware of it during the MVA proceedings, and accordingly I am not satisfied that Capital Lawyers was at fault in failing to recover the amount from NRMA. I am also not satisfied that if the amount had been recovered from NRMA, it would have made any difference at all to the amount ultimately in Ms Gindy’s pocket.
I am not satisfied that Ms Gindy had made either of the cash payments (totalling $3,770) that she claimed to have made to Capital Lawyers in relation to the preparation of two medical reports for the claim against NRMA,[13] and therefore I am not satisfied that Capital Lawyers was obliged to account to Ms Gindy for such payments.
As to the various aspects of Capital Lawyers’ handling of the MVA matter which seem to have offended Ms Gindy, although without apparently affecting the financial outcome of the matter:
(a)I am satisfied that Mr Chen had not given Dr Tang’s report to counsel before the settlement conference, but I am not satisfied that counsel’s advice (or the ultimate settlement amount) could have been affected to Ms Gindy’s detriment in any way by counsel seeing Dr Tang’s report only on the morning of the settlement conference;
(b)I am satisfied that counsel went into another room to negotiate with NRMA by phone at each relevant point in the negotiations, and accordingly I am satisfied that Ms Gindy did not observe any direct communication between Mr Chen, counsel, and NRMA during the settlement conference;[14] however, I am also satisfied that there was nothing unusual about counsel conducting the actual negotiations in such matters in the absence of the claimant, and I am satisfied by my own observations of Ms Gindy during the hearing that her presence during counsel’s negotiations with NRMA might well have been disruptive and would not have been in her interests.
(c)I am not satisfied that Ms Gindy was never provided, “in any shape or form”, with advice from counsel about her claim,[15] and I am satisfied that counsel was directly involved in advising Ms Gindy about the NRMA offer and the alternatives facing Ms Gindy if she didn’t accept NRMA’s offer, being that she “would do worse”, because “her case was not good”.
(d)I am satisfied that Capital Lawyers subsequently negotiated with NRMA for Ms Gindy’s legal costs and disbursements, and recovered $16,739.30, providing a total of $21,739.30 (rather than $25,000) for all Ms Gindy’s legal fees and disbursements.
(e)I am satisfied that the amount recovered from NRMA “by cost recovery” was set out in the first Explanatory Statement sent to Ms Gindy with her cheque for just over $37,000 and a covering letter dated 28 March 2012; accordingly, I am not satisfied that Ms Gindy did not become aware of this before December 2014,[16] although I accept the possibility (not attributable to any failure by Capital Lawyers) that when she received the cheque in late March 2012, Ms Gindy read only the covering letter and not the Explanatory Statement.
(f)I am satisfied that:
(i)Capital Lawyers did not tell Ms Gindy anything about the details of the negotiations with NRMA;
(ii)Mr Chen told NRMA that he would seek instructions about NRMA’s costs offer, and later that he had instructions to accept their offer, even though Mr Chen had not sought or obtained instructions from Ms Gindy;
(iii)Mr Chen did not ask for the costs claim to be referred to a “higher authority” in NRMA (presumably someone in NRMA who was authorised to approve a higher amount); and
(iv)Mr Chen’s dealing with NRMA as described was authorised by Ms Gindy’s Settlement Instructions (at [1813] below), which included a provision authorising Capital Lawyers “to negotiate recovery of [her] legal costs on [her] behalf with the NRMA”, and confirming that her contribution to Capital Lawyers’ legal costs would be $5,000 (implicitly, irrespective of the outcome of the costs negotiations).
(g)I am satisfied that on 23 March 2012, Capital Lawyers paid Ms Gindy an advance payment of $5,000, but I am not satisfied that Ms Gindy had previously been told that Capital Lawyers would transfer $50,000 to her at that point (although it is possible that Ms Gindy had been confused by advice received from Capital Lawyers about the scope for receiving an advance payment shortly after the settlement conference).
(h)I am satisfied that Capital Lawyers did not give Ms Gindy’s costs statement to NRMA, but I am also satisfied that this was not required by s 139 of the Road Transport (Third-Party Insurance) Act 2008 (ACT).[17]
(i)I am satisfied that Capital Lawyers paid counsel without giving Ms Gindy counsel’s costs agreement, advice and itemised account for the sum paid, but I am not satisfied that Capital Lawyers had any obligation to provide such documents to Ms Gindy.[18]
(j)I am not satisfied that Capital Lawyers had failed to account to Ms Gindy for all the funds involved in the MVA matter; the only flaw in Capital Lawyers’ provision of the necessary information to Ms Gindy was the provision of an Explanatory Statement showing an incorrectly high amount for the final cheque to Ms Gindy, but the evidence is that the incorrect statement was accompanied by a covering letter that showed the correct amount of the cheque and identified the reason why the cheque amount was nearly $2,000 less than was shown in the Explanatory Statement; furthermore, there is no evidence suggesting that Ms Gindy ever noticed or queried that incorrect element of the Explanatory Statement.
(k)I am not satisfied:
(i)that Capital Lawyers did not arrange for Ms Gindy to receive a copy of her MVA file around late September 2012; or
(ii)that Capital Lawyers did not send Ms Gindy a copy of her MVA file in December 2014.
(l)I am not satisfied that Capital Lawyers failed to give Ms Gindy any trust account statement for the MVA matter that they were obliged to provide.
(m)I am not satisfied that, in the MVA matter, Capital Lawyers overcharged Ms Gindy or charged her on a contingency basis.
(n)Having regard to those findings and conclusions, I am not satisfied that there is any basis on which the defendants should be ordered to pay damages of any kind to Ms Gindy in respect of their handling of the MVA matter.
The foreclosure matter
In 2010 Ms Gindy fell behind in her mortgage repayments on the family home in Florey. Late in 2010 the lender issued default notices, and in early 2011 Ms Gindy became aware that the lender had applied to the Supreme Court to foreclose on the mortgage (that is, to take possession of her house and sell it, in order to use the proceeds of sale to meet her obligations under the mortgage).
She retained Capital Lawyers to advise her about the proceedings. Ms Gindy claimed that shortly after this she had paid $2,000 in cash to Mr Chen, but this had not been subsequently accounted for by Capital Lawyers.
Initially Ms Gindy instructed Capital Lawyers that various fees and charges had been incorrectly applied to the mortgage account and, at some later point, she claimed that the lender was in breach of an agreement she had made with its representative, under which the lender would make substantial concessions in relation to her repayment obligations on condition that Ms Gindy applied for release of superannuation funds.
Several months later, the mortgage was discharged, the Florey property was sold to Ms Gindy’s son (with Capital Lawyers acting for Ms Gindy and Mr Elmaraazey on the sale), and the lender discontinued the foreclosure proceedings. Ms Gindy remained living in the Florey property.
Capital Lawyers, on instructions from Ms Gindy, wrote to the lender about the claimed repayment concession and about the challenged charges, but the lender denied the repayment concession and adjusted only one of the challenged charges.
Capital Lawyers did not commence any proceedings against the lender in relation to either the repayment concession or the challenged charges, and did not commence any recovery proceedings or proceedings for damages.
Ms Gindy claimed:
(a)that Capital Lawyers had breached certain terms of the retainer, in particular the implied term that they would use all reasonable care, skill and diligence in and about the performance of the retainer;
(b)that as a result of Capital Lawyers’ actions or failures to act, the resolution of the foreclosure proceedings in respect of the Florey property had been unsatisfactory, both financially and in other ways, in particular that by the end of the matter she no longer owned the house she lived in and she believed that she would never be able to buy another house;
(c)that Capital Lawyers had failed to brief counsel in the foreclosure proceedings;
(d)that, contrary to her instructions, Capital Lawyers had failed to defend the lender’s foreclosure proceedings, including by:
(i)failing to challenge the service of the necessary default notices;
(ii)failing to challenge the interest and the various fees and charges that had been applied to the loan over time; and
(iii)failing to enforce the repayment concession that Ms Gindy said had been agreed between her and the lender;
(e)that Capital Lawyers had made inaccurate or otherwise inappropriate payments out of the proceeds of the Florey property and had done so without her authority;
(f)that, contrary to her instructions and their own undertakings, Capital Lawyers had subsequently failed to commence “recovery proceedings” or proceedings for damages against the lender;
(g)that Capital Lawyers’ conduct of the proceedings had distressed Ms Gindy; and
(h)that Capital Lawyers had failed to account to Ms Gindy for various amounts obtained or paid in relation to the matter.
I have made findings, and reached conclusions, as follows:
(a)I am satisfied that in March 2011 Ms Gindy retained Capital Lawyers to advise her in relation to the foreclosure proceedings commenced by the lender.
(b)I am satisfied that Ms Gindy instructed Capital Lawyers that she had not been served with the default notice that was a necessary preliminary to the commencement of the foreclosure proceedings.
(c)I am satisfied that Mr Chen sought proof of service from the lender’s solicitors, and that eventually he received documents apparently evidencing effective service, after which a failure to give a default notice would not have provided an appropriate basis to challenge the foreclosure proceedings.
(d)I make no finding whether Ms Gindy was aware of the service of the default notice, but note the real possibility that she had declined to have anything to do with any document that had been affixed to her front door, and accordingly never became aware of its contents or its significance.
(e)I am not satisfied that Ms Gindy gave Mr Chen $2,000 in cash at any point after receiving the retainer letter.
(f)I am satisfied:
(i)that Mr Chen advised Ms Gindy about the possible outcomes of the foreclosure proceedings and about the options for responding to those proceedings;
(ii)that the options discussed would have included paying off the arrears, or paying off the whole loan (whether by selling the property or refinancing it); and
(iii)that the sale of the property was already an option under consideration by mid-March, when Ms Gindy signed a Discharge Authority.
(g)I am not satisfied that Mr Chen went beyond identifying the sale of the Florey property as an option (possibly even as the most practical option), and I am not satisfied that any advice given by Mr Chen about the sale of the house was given in conjunction with an undertaking that Capital Lawyers would then commence “recovery proceedings”.
(h)I am not satisfied that there was any basis on which Capital Lawyers could have commenced against the lender:
(i)“recovery proceedings”, which as used in the pleadings seems to have referred to proceedings against the lender to recover either the Florey property or its value; or
(ii)proceedings for damages.
(i)I am satisfied:
(i)that Mr Chen advised Ms Gindy that, after the foreclosure proceedings were resolved, steps could be taken in respect of any interest, fees or charges that could be shown to have been incorrectly applied to the loan account;
(ii)that Mr Chen effectively reserved Ms Gindy’s right to pursue such issues after the mortgage was discharged; and
(iii)that Mr Chen raised some of Ms Gindy’s complaints (notably, the ones that he could describe by reference to the contents of the loan account statements) with the lender’s solicitors, and received an explanation of the charges concerned.
(j)I am not satisfied that Ms Gindy (or Mr Elmaraazey) ever gave Mr Chen any information or material on the basis of which he could have raised further challenges to the accuracy of the loan account.
(k)I am satisfied that the problem identified by Ms Gindy as arising from “two different banks” would not have provided any useful challenge to any aspect of the lender’s proceedings in respect of Ms Gindy’s obligations under her loan account.
(l)I am not satisfied that Ms Gindy’s loan repayments were only required to be made monthly.
(m)I am satisfied that from early July 2010 Ms Gindy was suffering financial hardship, but I am not satisfied that, by the time Capital Lawyers became involved in the matter around March 2011, this would have provided any useful defence to the proceedings begun by the lender in the second half of 2010.
(n)I am not satisfied that there was any basis on which counsel should have been briefed in the foreclosure proceedings.
(o)I am satisfied that Capital Lawyers deducted, from the proceeds of the Florey sale, $1,899.70 in payment of the fees charged by the lender’s solicitors, Phelps Reid, but I am not satisfied that the lender was not entitled to recover those fees from Ms Gindy.
(p)I am satisfied:
(i)that the total amount of fees and disbursements charged by Capital Lawyers for their work in relation to the foreclosure proceedings and their work on behalf of Ms Gindy in the conveyance of the Florey property was $3,269.20;
(ii)that, contrary to Mr Chen’s letter to Ms Gindy dated 10 August 2011, the full amount of the costs and disbursements charged by Capital Lawyers had not been “paid in full” from the proceeds of the Florey sale because those costs and disbursements exceeded the remainder of the proceeds after all other required deductions had been made;
(iii)that part of that amount ($1,419.73) was paid from the remaining proceeds of the Florey sale; and
(iv)that the outstanding amount ($1,849.47) was recovered, with her written authority, from Ms Gindy’s damages in the MVA matter.
(q)I am satisfied that Capital Lawyers made three substantial payments from the proceeds of the Florey sale, being the $1,899.70 for the lender’s solicitors’ fees and two amounts paid in relation to the discharge of the mortgage, one repaying the outstanding loan on the Florey property ($321,250.64) and one paying an amount in respect of the loan arrears for the Chandler St property ($18,417.30).
(r)I am not satisfied that any of those payments was made by Capital Lawyers without instructions, without authority or without notifying Ms Gindy.
(s)I am not satisfied that Ms Gindy said anything to Mr Chen about the claimed repayment concession before June 2011, and I am not satisfied that there was any negligence in Mr Chen only raising the claim with the lender after the Florey property had been sold and the mortgage had been discharged.
(t)I am not satisfied that the defendants’ obligations to Ms Gindy under the retainer included putting to a court a case for which they had no useful instructions or evidence.
(u)Having regard to those findings and conclusions, I am not satisfied that there is any basis on which the defendants should be ordered to pay damages of any kind to Ms Gindy in respect of their handling of the foreclosure matter.
Significance of Ms Gindy’s disability
As to the claim made in each of the three complaints to the effect that because Ms Gindy had a disability, she was “unable to properly chase her entitlements” and that accordingly the defendants owed her “a higher duty of care” and “a higher standard of care”:
(a)I am not satisfied that Ms Gindy was deprived of any entitlement arising in any of the three matters:
(i)that, because of her disability, she could not “properly chase” and
(ii)that Capital Lawyers should have “chased”, or perhaps should have “chased” more energetically, for her.
(b)I am not satisfied that there were steps that Capital Lawyers should have taken because of Ms Gindy’s disability, being steps that Capital Lawyers did not take, to prevent any stress, distress, duress, pain or suffering afflicting Ms Gindy at any point after she retained Capital Lawyers.
PART 3: THE COMCARE COMPLAINT
Outline of relevant events
The workplace injury
In 2004 Ms Gindy began work at Questacon, otherwise known as The National Science and Technology Centre, where she worked as a gallery attendant, and was entitled to contribute to the PSS Scheme. During her employment, she experienced some conflicts with other staff. In August 2006 she suffered some kind of psychiatric or psychological episode and, after being taken to hospital on 11 August 2006, did not return to work at Questacon (or apparently anywhere else).
In 2009 Ms Gindy obtained medical reports in support of her application for a Disability Support Pension, and at some point thereafter she was granted such a pension.
Proceedings for compensation
Ms Gindy sought compensation for her workplace injury from Comcare, the Australian government authority providing workers’ compensation for, among others, Commonwealth employees. It seems that Ms Gindy was unhappy with Comcare’s initial determination of her claim on 12 November 2007, and applied to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of the determination (the AAT Review). Ms Gindy was initially represented by Maurice Blackburn Lawyers (Maurice Blackburn), but on the day listed for the hearing, her lawyers withdrew after advising that she did not have a good case.[19]
Ms Gindy’s husband Mamdouh Elmaraazey, who at that time was practising as a solicitor in his own firm, then took on the conduct of Ms Gindy’s case against Comcare. He briefed counsel (Graeme Lunney SC) to represent Ms Gindy in the AAT Review.[20] Ms Gindy gave evidence for the first day of the hearing, and the next day, 2 June 2010, the matter was settled.[21] The orders set aside the earlier decision and decided as follows:
(a) The Applicant suffered a ‘Major Depressive Disorder – single episode’ (Injury), being a ‘disease’ that was materially contributed to by her former employment with Questacon, deemed to have been sustained on 12 August 2006 (the date of first medical treatment).
(b) Accordingly, the Respondent is liable to pay compensation to the Applicant, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), in respect of the Injury.
Comcare accepted liability for Ms Gindy’s “injury” (the workplace injury), and the AAT Review concluded with the AAT making consent orders (the consent orders) for the payment of compensation covering a “closed period” of 42 months from 12 August 2006 to 11 February 2010 (the Closed Period).[22]
Legal costs and disbursements
The consent orders also required Comcare to pay Ms Gindy’s “party/party costs and disbursements under s 67 of the SRC Act as agreed or assessed”, and noted the parties’ agreement, among other things, that Comcare would “pay the Applicant’s counsel’s fees at the applicable Senior Counsel rate”.[23] There was never any suggestion that Mr Lunney’s fees did not reflect the “applicable Senior Counsel rate”.
Capital Lawyers’ work on collecting entitlements
Shortly before the end of June 2010, the ACT Law Society had refused to renew Mr Elmaraazey’s practising certificate for the next financial year. A manager, Colin Blain, was appointed to his firm, and Mr Elmaraazey ceased legal practice.
In August 2010, Mr Elmaraazey, acting on Ms Gindy’s behalf, instructed Capital Lawyers (represented by Mr Crabb) to act for Ms Gindy in recovering specified amounts under the consent orders.
Initially, the retainer related to the recovery of Ms Gindy’s legal costs and disbursements arising from the AAT Review.[24] Those costs were owed to counsel, and to two legal firms who had previously represented Ms Gindy, one of them being Mr Elmaraazey’s firm. Capital Lawyers, again represented by Mr Crabb, was instructed to negotiate with Comcare’s solicitors, Sparke Helmore Lawyers (Sparke Helmore) to recover those costs.
Soon afterwards, the retainer was expanded to apply also to the other two kinds of payments ordered by the AAT, being lost wages and medical treatment expenses.[25] The medical treatment and related expenses are often referred to, including in much of the evidence in this matter and accordingly in this judgment, as “out-of-pocket expenses” (OOP expenses).
Also in August 2010, the ACT Law Society commenced proceedings in ACAT against Mr Elmaraazey, and during 2011 and 2012 he was represented by Julian Burnside QC, instructed by Capital Lawyers.[26] At one point the payment of Mr Burnside’s fees, and those of junior counsel, became an issue in connection with the Comcare retainer.
Over the next two years, Comcare determined Ms Gindy’s lost wages and her reimbursable OOP expenses, and she received payments in respect of those determinations. Ms Gindy was not satisfied with either of the determinations, and raised various issues with Capital Lawyers in connection with her lost wages and her OOP expenses.
An appeal against the lost wages determination was begun in the AAT, but after efforts to find evidence in support of the appeal, it was discontinued; Ms Gindy claimed that this was on the basis that the challenge to the wages determination would be pursued in a court rather than the AAT, but no such action was taken.
At several points, Comcare invited the provision of further information about claimed OOP expenses that had been rejected for reimbursement, but none of these invitations was taken up.
The legal costs of the AAT Review were, with some involvement from the ACT Public Advocate (at [128] below), negotiated with Comcare’s solicitors, and around $56,000 was paid by Comcare to Capital Lawyers. Much of that amount was disbursed, including for Mr Elmaraazey’s benefit, but none of it found its way to Ms Gindy, and she was not satisfied with that outcome.
The sources of Ms Gindy’s dissatisfaction with the various payments obtained under the consent orders included claims made by Ms Gindy which, if correct, would have indicated the existence of other entitlements arising out of the employment that had effectively ended with the workplace injury. These claims were raised with Capital Lawyers, but their status under the retainer, and their content, were disputed.
Involvement of Public Advocate
From May until October 2012, under an ACAT appointment made on 8 May 2012 and revoked on 23 October 2012, Ms Gindy was under the guardianship of the ACT Public Advocate in respect of the bringing or continuing of legal proceedings for her or in her name.[27] For much or possibly all of this period, Mr Elmaraazey was overseas. During that period, Capital Lawyers obtained authority from the Public Advocate to accept a costs offer made by Sparke Helmore on behalf of Comcare.
Mr Crabb gave evidence in cross-examination that the Public Advocate, in the exercise of powers under the guardianship appointment, had “engaged” Capital Lawyers to deal with the remaining Comcare legal proceedings.[28]
Capital Lawyers ends its involvement
The last disbursement of funds recovered by Capital Lawyers on Ms Gindy’s behalf happened in late October 2012 (although some of those funds were at that point transferred to the Capital Lawyers trust account in respect of Mr Elmaraazey’s ACAT matter).
Mr Crabb wrote to Ms Gindy at least twice thereafter (at [1017] and [1027] below).
Applicable legislation
Section 4 of the SRC Act provides:
"medical treatment" means:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c)dental treatment by, or under the supervision of, a legally qualified dentist; or
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g)treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i)any other form of treatment that is prescribed for the purposes of this definition.
Section 8(1) of the SRC Act provides for the calculation of “normal weekly earnings” (NWE), using a formula as follows:
(NH × RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee's average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
The “relevant period” mentioned in s 8(1) is explained in s 9(1) of the SRC Act.
For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
Section 14(1) of the SRC Act, which was mentioned in the consent orders, is relevantly as follows:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Compensation for an injury resulting in incapacity for work involves compensation for lost wages (at s 19) but also compensation for medical treatment expenses (at s 16).
Section 16 is relevantly as follows:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a)if the employee has paid the cost of the medical treatment--to, or in accordance with the directions of, the employee; or
(b)…
(c)in any other case--to the person to whom the cost is payable.
Under s 16(6), compensation is payable for the cost of travel to obtain “medical treatment” as defined in s 4, subject to various limits including, generally, that the return journey exceeds 50 km or:
if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
There was evidence that Ms Gindy was entitled to a 15% loading as a casual employee, as well as “time and a half” for weekend shifts (which are treated as “overtime” under the SRC Act: at s 4).[29] It would make sense for the 15% loading to be taken into account in determining the “average hourly ordinary time rate of pay”, and the further 50% loading provided by a “time and a half” rate for weekend work to be treated as an “allowance” that is averaged separately from the ordinary time rate of pay.
[2096] T-5890.07–9, 6 July 2018 (Day 52).
[2097] T-3453.04–32, 6 February 2018 (Day 31).
[2098] T-3454.16–40, 6 February 2018 (Day 31).
[2099] T-6096.22–32, 11 July 2018 (Day 54).
[2100] Exhibit HI.
[2101] T-9701.35–9, 13 November 2018 (Day 82).
[2102] At [2233] above.
[2103] T-3361.39–3362.03, 5 February 2018 (Day 30).
[2104] T-3405.01–8, 6 February 2018 (Day 31).
[2105] T-3638.07–11, 8 February 2018 (Day 33).
[2106] T-6281.28–33, 13 July 2018 (Day 56). Ms Gindy’s evidence about bank charges was received as evidence only of her understanding about the bank’s charging practices: T-6281.35–9, 13 July 2018 (Day 56).
[2107] T-6792.13–36, 24 July 2018 (Day 60). In re-examining Ms Gindy about the bank records, Mr Elmaraazey pointed out that she had only been able to give evidence about the bank accounts in cross-examination; he did not seem to appreciate that this was directly attributable to Ms Gindy’s failure to produce the bank records in her own case.
[2108] Perhaps the most tragic aspect of the bank statements was that a significant proportion of Ms Gindy’s expenses, or at least of her growing debts, reflected not the normal living expenses of her family (incurred at places such as supermarkets, petrol stations, and pharmacies) but charges imposed by the bank, including both high rates of interest and an assortment of fees and charges such as for exceeding overdraft or credit limits.
[2109] T-3620–7, 8 February 2018 (Day 33).
[2110] T-3628.01–14, 8 February 2018 (Day 33).
[2111] T-6255.33–5, 13 July 2018 (Day 56).
[2112] T-3623.39–42, 8 February 2018 (Day 33).
[2113] T-6264.01–6, 13 July 2018 (Day 56).
[2114] T-6263.13–17, 13 July 2018 (Day 56).
[2115] Exhibit 84 at p 44.
[2116] The loan statement issued on 31 March 2011 (Exhibit HF) suggests that there was no attempt to debit a repayment on 30 June, 14 or 28 July, or 11 August 2010, no imposition of any dishonour fee, and the application of only relatively small amounts of default interest at the end of June, July and August 2010. This raises the interesting possibility, not addressed by either party (except as noted below) and accordingly not pursued in this judgment, that at some point in June 2010 Ms Gindy had in fact persuaded the lender not to debit further repayments for a very limited period; the Advantedge letter dated 5 August 2010 (Exhibit 27) could be read as advising that a brief pause in debiting repayments had now come to an end, the arrears needed to be cleared, and the next payment was due on 11 August 2010. Such a possibility would have no particular significance in the current matter except to the extent that it would be consistent with a conclusion that Ms Gindy’s claims about the repayment concession had some basis, however minor, in fact and were not entirely delusional; such a conclusion might provide some comfort to Ms Gindy but would not have had any impact in terms of the obligations taken on, and the efforts made, by Capital Lawyers under the retainer from the point at which Ms Gindy first mentioned the repayment concession.
[2117] T-3384.32–3, 6 February 2018 (Day 31).
[2118] T-3385.08–30, 6 February 2018 (Day 31).
[2119] T-3447.23–9, 6 February 2018 (Day 31).
[2120] T-3497.05–19, 7 February 2018 (Day 32).
[2121] Albeit a response of the kind often described as cutting off one’s nose to spite one’s face.
[2122] T-704.41–705.02, 21 April 2017 (Day 7).
[2123] T-1668.32–1669.15, 13 July 2017 (Day 16).
[2124] T-1913.12–15, 17 July 2017 (Day 18).
[2125] T-5223.06–23, 28 June 2018 (Day 47).
[2126] Which suggestion seemed to be implicit in the Defendants’ Outline of Closing Submissions at 132 [696].
[2127] T-1660.23–1661.42, 13 July 2017 (Day 16).
[2128] T-1727.32–1730.06, 14 July 2017 (Day 17).
[2129] T-3299.02–6, 5 February 2018 (Day 30).
[2130] T-3429.12–20, 6 February 2018 (Day 31). Ms Gindy effectively and repeatedly ignored my advice that she “wouldn’t have time to get bored, if [she] just answered the questions properly the first time”.
[2131] T-3429.35–3430.01, 6 February 2018 (Day 31).
[2132] T-5250.35–5251.06, 28 June 2018 (Day 47); Plaintiff’s Closing Submissions, vol 3 at 26 [44].
[2133] T-1862.42–1866.21, 17 July 2017 (Day 18).
[2134] T-1886.29–1888.21, 17 July 2017 (Day 18).
[2135] T-2323.34–42, 21 July 2017 (Day 22).
[2136] Plaintiff’s Closing Submissions, vol 3 at 25 [44].
[2137] T-3509.43–3510.02, 7 February 2018 (Day 32); T-6143.21–3, 12 July 2018 (Day 55).
[2138] Plaintiff’s Closing Submissions, vol 3 at [38]–[44].
[2139] T-3516.39–42, 7 February 2018 (Day 32).
[2140] T-6144.18–24, 12 July 2018 (Day 55).
[2141] T-3508.04–23, 3512.04–25, 7 February 2018 (Day 32).
[2142] T-6140.30–45, 6143.21–3, 12 July 2018 (Day 55).
[2143] T-3515.35–7, 7 February 2018 (Day 32).
[2144] T-6144.01–4, 12 July 2018 (Day 55).
[2145] Exhibit HJ at p 18.
[2146] T-1694.06–7, 13 July 2017 (Day 16).
[2147] T-1696.01–1698.14, 13 July 2017 (Day 16).
[2148] T-1838.01–9, 17 July 2017 (Day 18).
[2149] Defendants’ Outline of Closing Submissions at 116 [607].
[2150] Amended Statement of Claim at 19 [53(d)].
[2151] T-1629.33–1631.20, 1679.44–1680.12, 13 July 2017 (Day 16).
[2152] T-3105.34–44, 1 February 2018 (Day 28).
[2153] Ms Gindy did refer to the meeting with the lender being in September in evidence taken in a voir dire during her evidence in chief, but that evidence was subsequently excluded by agreement on 11 July 2017: T-1338.24–1339.31, 11 July 2017 (Day 14). Mr Elmaraazey’s agreement seems to have been based on the belief, not obviously correct, that Ms Gindy had elsewhere given evidence to the same effect as in the voir dire.
[2154] T-3432.15–3433.17, 6 February 2018 (Day 31).
[2155] T-1684.33–1685.23, 13 July 2017 (Day 16).
[2156] T-1834–46, 17 July 2017 (Day 18).
[2157] T-1669.05–27, 13 July 2017 (Day 16).
[2158] T-1670.08–26, 13 July 2017 (Day 16).
[2159] T-1842.01–16, 17 July 2017 (Day 18).
[2160] T-1685.31–4, 13 July 2017 (Day 16).
[2161] T-1685.36–1686.11, 13 July 2017 (Day 16).
[2162] T-1686.13–1687.05, 13 July 2017 (Day 16).
[2163] T-3428.32–5, 6 February 2018 (Day 31).
[2164] T-3495.01–3496.03, 7 February 2018 (Day 32).
[2165] T-1681, 13 July 2017 (Day 16). A payment due on 3 November 2010 was not mentioned by counsel, but was also dishonoured and the subject of a dishonour fee.
[2166] T-1681.15–34, 13 July 2017 (Day 16).
[2167] T-1685.08–19, 13 July 2017 (Day 16).
[2168] T-1778.27–31, 14 July 2017 (Day 17).
[2169] T-3455.13–32, 6 February 2018 (Day 31).
[2170] T-1679.35–44, 13 July 2017 (Day 16).
[2171] T-2052.29–37, 18 July 2017 (Day 19).
[2172] Plaintiff’s Closing Submissions, vol 3 at 111–12 [56].
[2173] And other evidence identified in the defendants’ submissions (at [627(a)–(j)] and [628]) at the following points in the transcript: T-1668.44, 1669.22, 1669.42, 1674.24–30, 1685.11, 1679.14–16, 1686.01–5, 1695.06–8, 13 July 2017 (Day 16); T-1834.08, 1839.26–36, 1840.05–9, 17 July 2017 (Day 18); T-2220.06–10, 20 July 2017 (Day 21); T-3206.43–3207.01, 2 February 2018 (Day 29).
[2174] See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40]:
This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
(Citations omitted.)
[2175] Exhibit AE.
[2176] Plaintiff’s Closing Submissions, vol 3 at 15.
[2177] Plaintiff’s Closing Submissions, vol 3 at 16–18.
[2178] Plaintiff’s Closing Submissions, vol 3 at 18–20. The availability of foreclosure proceedings depended on the validity of the default notices, and whether they had been properly served. The question of service in turn raised the issue whether the Affidavit of Service was accurate, attached the appropriate Notice of Default, and had been properly sworn. However, whether Mr Hijazi had properly certified the copies he sent to Capital Lawyers was in my view irrelevant, since any issue about the reliability of the copies (as distinct from the efficacy of the originals) could have been easily resolved by inspecting the originals as offered by Mr Hijazi.
[2179] T-1851.02–5, 17 July 2017 (Day 18).
[2180] T-1855.10–1856.34, 17 July 2017 (Day 18).
[2181] See, eg, T-9769, 14 November 2018 (Day 83).
[2182] Exhibit 4.
[2183] T-1668–70, 13 July 2017 (Day 16).
[2184] T-9649.01–9650.23, 12 November 2018 (Day 81).
[2185] T-9650.14–21, 12 November 2018 (Day 81).
[2186] Exhibit 4 at p 151.
[2187] Plaintiff’s Closing Submissions, vol 3 at 20 [38]–[44].
[2188] T-2323.29–31, 21 July 2017 (Day 22).
[2189] T-3018.25–39, 31 January 2018 (Day 27).
[2190] T-5208.41–4, 28 June 2018 (Day 47).
[2191] T-5211.40–5212.03, 28 June 2018 (Day 47).
[2192] T-5712.06–8, 5 July 2018 (Day 51).
[2193] T-9632.40–9633.07, 9662.19–22, 12 November 2018 (Day 81).
[2194] Exhibits 28, AH, HF.
[2195] Exhibit 32.
[2196] Exhibit HJ at p 1.
[2197] T-9645.21–9646.16, 12 November 2018 (Day 81).
[2198] Amended Statement of Claim at 18–19 [53]; see especially [53(i)].
[2199] Amended Statement of Claim at 18–19 [53].
[2200] Amended Statement of Claim at 19 [54].
[2201] Defendants’ Outline of Closing Submissions at 146 [793]. For instance, under r 20 of the Legal Profession (Solicitors Rules) 2007 (ACT), which were in force during the relevant period.
[2202] Plaintiff’s Closing Submissions, vol 3 at 2–4.
[2203] Plaintiff’s Closing Submissions, vol 3 at 12–14 [23], [25], [27], [29]
[2204] Plaintiff’s Closing Submissions, vol 3 at 12–14 [24], [26], [28], [30]
[2205] Plaintiff’s Closing Submissions, vol 3 at 12–14 [23], [25], [27], [29], [30].
[2206] Which ceased to apply in that form on 1 January 2011 when the Competition and Consumer Act 2010 (Cth) came into force.
[2207] Which appears to deal with meetings of the Australian Competition and Consumer Commission.
[2208] Except the last iteration of this submission (at [66] of the submissions), which ran out of steam early and ended with “had a defence and counterclaim and”.
[2209] Plaintiff’s Closing Submissions, vol 3 at 198–9 [65]–[68].
[2210] See s 72(1) of the Credit Code as in force after 1 March 2013.
[2211] T-9698.06–12, 13 November 2018 (Day 82).
[2212] T-901.45–902.01, 23 May 2017 (Day 9).
[2213] T-941.36–9, 23 May 2017 (Day 9).
[2214] T-1857.20–36, 17 July 2017 (Day 18).
[2215] T-5370.20–4, 29 June 2018 (Day 48).
[2216] T-2231.17–2232.02, 20 July 2017 (Day 21).
[2217] T-2232.04–15, 20 July 2017 (Day 21).
[2218] The quoted exchange did not suggest to me that in denying that she had “advised” Mr Chen, Ms Gindy was distinguishing between advising and instructing.
[2219] T-9618.28–32, 12 November 2018 (Day 81).
[2220] T-9618.36–8, 12 November 2018 (Day 81).
[2221] T-2232.18–31, 20 July 2017 (Day 21).
[2222] Defendants’ Outline of Closing Submissions at 146–7 [795]–[796].
[2223] T-9763.36–9767.38, 14 November 2018 (Day 83).
[2224] T-10080.22–3, 20 November 2018 (Day 85).
[2225] T-10081.35–40, 20 November 2018 (Day 85).
[2226] T-10077.34–10078.03, 20 November 2018 (Day 85).
[2227] T-10078.05–10080.26, 20 November 2018 (Day 85). It seemed that Mr Elmaraazey was using “on the basis of” to mean “like”.
[2228] T-10080.15–26, 20 November 2018 (Day 85).
[2229] T-10081.25–40, 20 November 2018 (Day 85).
[2230] T-10142.43–10143.27, 20 November 2018 (Day 85).
[2231] Plaintiff’s Closing Submissions, vol 3 at 62 [54].
[2232] Plaintiff’s Closing Submissions, vol 3 at 30.
[2233] T-3509.38–3510.34, 7 February 2018 (Day 32).
[2234] T-862.20–3, 22 May 2017 (Day 8).
[2235] T-1791.24–1792.07, 14 July 2017 (Day 17).
[2236] T-1798.10–40, 14 July 2017 (Day 17).
[2237] Exhibit 2.
[2238] T-9649.16–18, 12 November 2018 (Day 81).
[2239] Plaintiff’s Closing Submissions, vol 3 at 202–5.
[2240] T-10188.5-33, 21 November 2018 (Day 86).
[2241] T-10196.01, 21 November 2018 (Day 86).:
[2242] Defendants’ Outline of Closing Submissions at 56 [261].
[2243] The relevant exhibits refer to the amount of $18,417.30.
[2244] Mr Elmaraazey did not in his submission take account of the update to the loan payout figure, but nor did he complain about the difference between the two figures.
[2245] Exhibit 22.
[2246] T-1720.44–1721.12, 14 July 2017 (Day 17).
[2247] T-1763.28–31, 14 July 2017 (Day 17).
[2248] T-1764.13–19, 1766.16–22, 14 July 2017 (Day 17).
[2249] T-1766.41–1767.03, 1790.39–1791.11, 14 July 2017 (Day 17).
[2250] T-1977.36–1978.19, 18 July 2017 (Day 19).
[2251] T-1978.21–1979.37, 18 July 2017 (Day 19).
[2252] T-3467.15–20, 6 February 2018 (Day 31).
[2253] T-3467.18–3468.25, 6 February 2018 (Day 31).
[2254] T-5229.09–13, 28 June 2018 (Day 47).
[2255] Mr Elmaraazey also saw the Chandler St equity as having broad significance. Mr Chen gave evidence that Capital Lawyers had arranged for Ms Gindy to apply to a litigation funder in connection with the MVA matter, because as far as he knew Ms Gindy did not have money to pay for the various medical reports required. In cross-examining Mr Chen, Mr Elmaraazey relied on what was, on the face of it, his own equity in Chandler St to challenge Mr Chen’s explanation of Ms Gindy’s application for litigation funding.
[2256] Nowhere in the pleadings is there any suggestion that either Capital Lawyers’ obligation to use all reasonable care, skill and diligence in acting for Ms Gindy under the several retainers, or any duty Capital Lawyers owed her as a “disabled person” who was unable to “properly chase her entitlements”, extended to protecting her from Mr Elmaraazey’s actions in connection with the couple’s intertwined financial arrangements.
[2257] Rather than the $321,022.76 shown in earlier documents and in Mr Elmaraazey’s submissions.
[2258] Exhibit 21
[2259] Plaintiff’s Closing Submissions, vol 3 at 200 [70].
[2260] Each of which increases the total debt on which the next interest charge is calculated.
[2261] Plaintiff’s Closing Submissions, vol 3 at 202 [72].
[2262] Supplemented from the damages obtained by Ms Gindy as a result of her motor vehicle accident.
[2263] Exhibit 2.
[2264] Exhibit AP.
[2265] Defendants’ Outline of Closing Submissions at 160 [878].
[2266] Amended Statement of Claim at 25 [64], 27 [68].
[2267] In the original Statement of Claim, the reference was to $420,000; there was no attempt to explain the increase in the amount claimed (although it might have reflected the late discovery of the document mentioned at endnote [2268] below).
[2268] Mr Elmaraazey made an abortive attempt to adduce evidence of the value of the Florey property, which consisted of a printout from an online stamp duty “calculator” which had been found on a relevant Capital Lawyers file and which showed a calculation based on a value of $440,000. Ms Gindy’s attempt to give evidence of what she had been told was the value of the property was also rejected.
[2269] For instance in the heading to written submissions (at [3028] above),
[2270] Even the similarity between the three amounts (especially the occurrence of “2” in two of them and “7” in two of them), combined with Ms Gindy’s tendency (at certain points) to begin answering a question before it was completed, and with Mr Elmaraazey’s tendency (at many points) to interrupt with a “clarification”, created confusion between witness and questioner on several occasions.
[2271] T-2352.36–9, 21 July 2017 (Day 22).
[2272] T-2331.13–2332.33, 21 July 2017 (Day 22).
[2273] T-2332.24–2334.42, 21 July 2017 (Day 22).
[2274] T-2339.28–2340.29, 21 July 2017 (Day 22).
[2275] T-2342.02–8, 21 July 2017 (Day 22).
[2276] T-2341.22–2343.12, 21 July 2017 (Day 22).
[2277] T-2343.39–2345.24, 21 July 2017 (Day 22).
[2278] T-2348.03–2349.32, 21 July 2017 (Day 22).
[2279] T-2349.45–2359.18, 21 July 2017 (Day 22).
[2280] T-2350.25–2352.39, 21 July 2017 (Day 22).
[2281] T-2353.05–41, 21 July 2017 (Day 22).
[2282] T-2354.06–39, 21 July 2017 (Day 22).
[2283] T-2357.01–15, 21 July 2017 (Day 22).
[2284] T-2357.26–9, 21 July 2017 (Day 22).
[2285] Exhibit 26.
[2286] T-2362.19–21, 21 July 2017 (Day 22).
[2287] T-2355.43–2356.03, 21 July 2017 (Day 22).
[2288] T-2363.39–42, 21 July 2017 (Day 22).
[2289] T-2367.18–23, 21 July 2017 (Day 22).
[2290] T-2377.23–2379.01, 21 July 2017 (Day 22).
[2291] T-2369.01–42, 21 July 2017 (Day 22).
[2292] T-2369.44–2370.18, 21 July 2017 (Day 22).
[2293] T-2370.27–38, 21 July 2017 (Day 22).
[2294] T-2370.40–2371.19, 21 July 2017 (Day 22).
[2295] T-2374.17–35, 21 July 2017 (Day 22).
[2296] T-2376.43–2377.01, 21 July 2017 (Day 22).
[2297] T-2380.24–7, 21 July 2017 (Day 22).
[2298] Exhibit AA.
[2299] T-3772.26–37, 9 February 2018 (Day 34).
[2300] T-3772.39–44, 9 February 2018 (Day 34).
[2301] T-4116–18, 15 February 2018 (Day 38).
[2302] The cross-examination quoted at [3243] below is an example of why by this stage even counsel might have been confused.
[2303] T-4069.25–8, 14 February 2018 (Day 37).
[2304] T-4116.13–14, 15 February 2018 (Day 38).
[2305] T-4067–70, 14 February 2018 (Day 37).
[2306] T-4070–5, 14 February 2018 (Day 37).
[2307] T-6650.19–25, 20 July 2018 (Day 59).
[2308] T-4116.36–4118.39, 15 February 2018 (Day 38).
[2309] T-4116.18–4117.05, 15 February 2018 (Day 38).
[2310] T-4117.33–4118.39, 15 February 2018 (Day 38).
[2311] What Ms Gindy had in mind in her reference to going “in defence into that” never became clear.
[2312] T-10055.01–10056.11, 20 November 2018 (Day 85).
[2313] Exhibit AP at p 103; T-10056.16–19, 20 November 2018 (Day 85).
[2314] T-10056.21–3, 20 November 2018 (Day 85).
[2315] T-10191.39–10192.18, 21 November 2018 (Day 86).
[2316] T-10191.07–10192.30, 21 November 2018 (Day 86).
[2317] Exhibit AF related to the foreclosure matter.
[2318] T-9960.06–12, 15 November 2018 (Day 84).
[2319] T-9954–62, 15 November 2018 (Day 84).
[2320] T-9962.27–32, 15 November 2018 (Day 84).
[2321] Defendants’ Outline of Closing Submissions at 76 [379]–[382], 78–9 [398].
[2322] T-2331.30, 21 July 2017 (Day 22).
[2323] T-2331.42, 21 July 2017 (Day 22).
[2324] T-2332.05–9, 21 July 2017 (Day 22).
[2325] T-2332.32–2333.07, 21 July 2017 (Day 22).
[2326] T-2334.32–3, 21 July 2017 (Day 22).
[2327] T-2334.35–9, 21 July 2017 (Day 22).
[2328] T-2332.10, 21 July 2017 (Day 22).
[2329] T-2334.41–2, 21 July 2017 (Day 22).
[2330] T-2355–7, 21 July 2017 (Day 22).
[2331] T-3757–8, 9 February 2018 (Day 34).
[2332] T-2355.43–2356.03, 21 July 2017 (Day 22).
[2333] T-9958.19–23, 15 November 2018 (Day 84).
[2334] T-4853.08–26, 22 June 2018 (Day 44).
[2335] T-4854.28–37, 22 June 2018 (Day 44).
[2336] Exhibit BA at p 82.
[2337] T-4854.28–37, 22 June 2018 (Day 44).
[2338] Exhibit EY at p 902.
[2339] Amended Statement of Claim at 8–10 [17]–[21], [26], [28].
[2340] Further Amended Defence at 5 [13(c)].
[2341] T-256.30–3, 12 April 2017 (Day 3).
[2342] T-398.05–400.11, 13 April 2017 (Day 4); T-3953.20–31, 13 February 2018 (Day 36).
[2343] T-6526.03–6, 18 July 2018 (Day 58).
[2344] Exhibit CP.
[2345] Exhibit CQ.
[2346] Exhibit CS.
[2347] Exhibit CT.
[2348] Exhibit CR.
[2349] Exhibit CZ.
[2350] T-3955.17–29, 13 February 2018 (Day 36); T-4011.03–14, 14 February 2018 (Day 37).
[2351] T-6566.46–6567.20, 20 July 2018 (Day 59).
[2352] T-4474.10–44, 20 June 2018 (Day 42).
[2353] T-4474.31–4475.22, 20 June 2018 (Day 42).
[2354] T-4537.27–8, 20 June 2018 (Day 42).
[2355] T-4476.29–36, 20 June 2018 (Day 42).
[2356] T-4477.17–43, 20 June 2018 (Day 42).
[2357] T-8419.02–5, 20 September 2018 (Day 73).
[2358] Exhibit Y.
[2359] Exhibit Z.
[2360] The Capital Lawyers file note had come originally from the plaintiff’s tender bundle and was marked for identification during Ms Gindy’s cross-examination.
[2361] Exhibit HA.
[2362] T-3784.06–7, 9 February 2018 (Day 34).
[2363] T-9528.01–2, 9529.36–40, 9532.22, 5 October 2018 (Day 80).
[2364] T-3787.23–5, 9 February 2018 (Day 34).
[2365] T-6388.33–7, 6389.41–4, 6391.14–15, 17 July 2018 (Day 57).
[2366] T-9532.19–20, 5 October 2018 (Day 80).
[2367] Exhibit DA.
[2368] T-1482.23–1483.15, 12 July 2017 (Day 15).
[2369] T-1482.36–9, 12 July 2017 (Day 15).
[2370] T-3760–1, 9 February 2018 (Day 34).
[2371] At [18], [824], [825] and [1000] above. In October 2011 Ms Gindy wrote to Mr Crabb referring to the son “interfering”: Ms Gindy’s characterisation of the son’s actions was denied by Mr Crabb, and may say more about her attitude at the time than about the son’s actions (at [998] above); her comments may be contrasted with her evidence at [1019] above.
[2372] T-6036.11–12, 11 July 2018 (Day 54).
[2373] T-1572, 13 July 2017 (Day 16).
[2374] T-1577–8, 13 July 2017 (Day 16).
[2375] T-1585–91, 13 July 2017 (Day 16).
[2376] T-1592.03–4, 13 July 2017 (Day 16).
[2377] See T-1803.06–9, 14 July 2017 (Day 17).
[2378] T-1605.18–1606.07, 13 July 2017 (Day 16).
[2379] T-1609.26–1610.10, 13 July 2017 (Day 16).
[2380] See also T-3339, 5 February 2018 (Day 30); T-3383, 6 February 2018 (Day 31); T-5925, 5963, 10 July 2018 (Day 53); T-6281, 13 July 2018 (Day 56); T-10317, 19 December 2018 (Day 88).
[2381] T-2940.22–4, 30 January 2018 (Day 26).
[2382] T-2940.37–8, 30 January 2018 (Day 26).
[2383] T-2959.11–13, 30 January 2018 (Day 26).
[2384] Hearing before Mossop AsJ on 23 September 2016, T-25.31–26.6.
[2385] T-7739.4-21, 30 August 2018 (Day 69).
[2386] T-4470.12–19, 20 June 2018 (Day 42).
[2387] Plaintiff’s Reply to Defendant’s Submissions at 16 [27]–[29].
[2388] T-486.29–40, 18 April 2017 (Day 5).
[2389] Judicial Commission of NSW, Civil Trials Bench Book (online at 1 November 2021) 2 Procedure Generally, ‘[2-4900] Pleadings and Particulars’ [2‑4930] <
[2390] Amended Statement of Claim at 3 [5]–[8], 18–19 [52]–[54], 32 [87]–[88].
[2391] Amended Statement of Claim at 10 [30], 25 [63], 39 [105].
[2392] Macquarie Dictionary Online (2021) < Amended Statement of Claim at 10–11 [32], 26 [65], 38–9 [103].
[2394] Amended Statement of Claim at 12 [35], 27 [69]–[70], 40 [108].
[2395] Amended Statement of Claim at 14–15 [39] (both versions), 28–9 [72]–[74], 42–3 [112].
[2396] Amended Statement of Claim at 15–16 [42]–[44], 29–30 [76]–[77], 43–4 [116].
[2397] Amended Statement of Claim at 17 [46]–[47], 31 [80], 45 [120].
[2398] Amended Statement of Claim at 17 [48]–[49], 31 [82]–[83], 45–6 [121]–[122].
[2399] Mr Elmaraazey in submissions suggested that the defendants’ evidence to this effect cast an evidentiary onus on the defendants to prove their evidence (at [3506] above).
[2400] Plaintiff’s Reply to Defendant’s Submissions at 7–8 [19].
[2401] T-1595.18–24, 13 July 2017 (Day 16).
[2402] T-1593.16–1595.16, 13 July 2017 (Day 16).
[2403] T-1621.14–1622.35, 13 July 2017 (Day 16).
[2404] T-5122.05–19, 27 June 2018 (Day 46).
[2405] T-1780.01–1781.01, 14 July 2017 (Day 17).
[2406] T-464.10–12, 18 April 2017 (Day 5).
[2407] The assertion was that “Ms Gindy gave creditable [sic], truthful and detailed evidence in her examination-in-chief.” (for instance, Volume 2 of the “Plaintiff Submissions” at [7]), and Volume 3 of those submissions at [2].
[2408] Defendants’ Outline of Closing Submissions at 248–60.
[2409] Defendants’ Outline of Closing Submissions at 248 [1363].
[2410] See from T-4161, 15 February 2018 (Day 38).
[2411] For instance, at least one of his paragraphs was taken from a 2005 article (Barbara McDonald, “Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia” (2005) 27(3) Sydney Law Review 443) which was not mentioned in the submissions. However, the paragraphs which started life in this article had, for Mr Elmaraazey’s purposes, been “edited” in various ways that might well have made the author grateful that they had not been attributed to her.
[2412] And not only because legislation is rarely successful in preventing people from making silly arguments.
[2413] Curiously, Mr Elmaraazey seems to have believed that Ms Gindy’s claim, to have been working at Questacon 8 hours a day, 7 days a week, for 6 months before her injury, might have benefited from the more rigorous rules of evidence applied in a court.
[2414] T-6761.36–6762.27, 24 July 2018 (Day 60).
[2415] T-6765.13–6766.17, 24 July 2018 (Day 60).
[2416] In later evidence this reference was corrected to 13 September 2010: see, eg, T-6766.41–4, 6795.38–41, 24 July 2018 (Day 60).
[2417] T-6763.36–6764.37, 24 July 2018 (Day 60).
[2418] T-6763.14–6764.03, 24 July 2018 (Day 60).
[2419] T-6771.27–9, 24 July 2018 (Day 60).
[2420] T-5443–4, 3 July 2018 (Day 49).
[2421] T-5445–8, 3 July 2018 (Day 49).
[2422] T-5559.35–5563.09, 4 July 2018 (Day 50).
[2423] T-4940–1, 26 June 2018 (Day 45); T-5574.40–5575.04, 5579.31–3, 4 July 2018 (Day 50).
[2424] Definition of “mental harm”.
[2425] Definition of “pure mental harm”.
[2426] Definition of “consequential mental harm”.
[2427] It is possible that Mr Elmaraazey’s document had lost a block of text at some point in its creation.
[2428] Baltic Shipping: luxury cruise that ended when the cruise ship sank; Insight Vacations: package tour of Europe spoilt when the plaintiff was injured during bus travel provided by the tour company; Moore: holiday cruise in Europe severely disrupted by tour provider’s response to adverse weather conditions.
[2429] For the purposes of this matter I have assumed that the propositions quoted apply equally to women who sign documents.
[2430] T-10329.08–13, 10345.02–3, 19 December 2018 (Day 88).
[2431] Plaintiff’s Reply to Defendant’s Submissions at 18 [40].
[2432] T-6832.39–6833.41, 25 July 2018 (Day 61).
[2433] Plaintiff’s Reply to Defendant’s Submissions at 41 [93].
[2434] Defendants’ Outline of Closing Submissions at 66 [319].
[2435] Plaintiff’s Reply to Defendant’s Submissions at 29 [58].
[2436] Plaintiff’s Reply to Defendant’s Submissions at 30–1 [62]–[64].
[2437] Mentioned at T-8967.10-13, 31-34, 25 September 2018 (Day 75)
[2438] Plaintiff’s Reply to Defendant’s Submissions at 30 [61].
[2439] T-2014–24, 18 July 2017 (Day 19).
[2440] Plaintiff’s Reply to Defendant’s Submissions at 34 [70].
[2441] Plaintiff’s Reply to Defendant’s Submissions at 34–5 [74].
[2442] Around $2,000 had, with Ms Gindy’s authority, been deducted from the payment and transferred to the foreclosure file to pay an outstanding Capital Lawyers invoice.
[2443] T-1512.15–1513.17, 12 July 2017 (Day 15).
[2444] In fact the exhibit did not include a statement for the 2006/07 year, but since there was no controversy about the 2006/07 statement, it is unnecessary to pursue the mystery of whether this reflected an administrative error by the PSS in responding to the subpoena, or by someone else at some later point in the history of the documents.
[2445] Exhibit 39; T-3381–4, 6 February 2018 (Day 31); T-5892, 6 July 2018 (Day 52).
[2446] Exhibit 40 at p 9.
[2447] T-5963.35–42, 10 July 2018 (Day 53).
[2448] T-1512.43–1513.04, 12 July 2017 (Day 15).
[2449] T-1513.06–10, 12 July 2017 (Day 15).
[2450] T-1645.26–31, 13 July 2017 (Day 16).
[2451] T-2201.08–2202.34, 20 July 2017 (Day 21).
[2452] T-3556.28–3557.37, 7 February 2018 (Day 32).
[2453] T-3956.43–3957.10, 13 February 2018 (Day 36), and see also T-3563.40–3564.09, 7 February 2018 (Day 32).
[2454] T-6166.34–40, 12 July 2018 (Day 55).
[2455] Exhibit 37 at p 113.
[2456] T-3566.26–3567.17, 7 February 2018 (Day 32). See also Exhibit 3; T-3562, 7 February 2018 (Day 32).
[2457] T-1645.14–21, 13 July 2017 (Day 16); T-3383.20–3384.26, 6 February 2018 (Day 31).
[2458] T-3383.43–3384.03, 6 February 2018 (Day 31).
[2459] T-5965.37–5966.26, 10 July 2018 (Day 53).
[2460] T-4852.21–7, 22 June 2018 (Day 44).
[2461] T-9618.18–19, 12 November 2018 (Day 81).
[2462] T-4742–71, 22 June 2018 (Day 44).
[2463] T-4768.09–16, 22 June 2018 (Day 44); Exhibit DP, see also Exhibit DQ.
[2464] Mr Elmaraazey at one point explained that he wanted to put these documents to Mr Crabb to lay the groundwork for a submission that if Comcare had seen the documents, it might have made a difference (in favour of Ms Gindy) to Comcare’s treatment of the claimed OOP expenses: T-4842–3, 22 June 2018 (Day 44). No such submission was made, probably because in his evidence Mr Crabb pointed out that all of the documents in Exhibit DT had in fact been made available to Comcare (presumably in connection with the AAT Review or earlier consideration of Ms Gindy’s Comcare claim).
[2465] T-4760.05 –14, 22 June 2018 (Day 44).
[2466] T-4768.28–40, 22 June 2018 (Day 44).
[2467] T-4760.05–14, 22 June 2018 (Day 44).
[2468] T-4763.09–14, 22 June 2018 (Day 44).
[2469] T-4763, 4769, 22 June 2018 (Day 44).
[2470] Mr Elmaraazey incorrectly referred to 2011 in setting out the dates at [59] and [60] of his quoted submissions: vol 4.2 at 174–5.
[2471] Exhibit GP.
[2472] T-9792, 9794–6, 14 November 2018 (Day 83).
[2473] Plaintiff’s Closing Submissions vol 1 at 37–44.
[2474] Exhibit R.
[2475] Exhibits W, 63.
[2476] T-3913.16, 13 February 2018 (Day 36).
[2477] Corrected by Ms Gindy in cross-examination: T-3916.26–7, 13 February 2018 (Day 36).
[2478] T-338–9, 13 April 2017 (Day 4).
[2479] Exhibit AV.
[2480] T-7521.14–18, 28 August 2018 (Day 67).
[2481] T-3887–91, 12 February 2018 (Day 35).
[2482] T-6471.36–41, 18 July 2018 (Day 58).
[2483] T-3913.19–40, 13 February 2018 (Day 36).
[2484] T-3914.02, 13 February 2018 (Day 36).
[2485] T-6469.17–37, 18 July 2018 (Day 58).
[2486] T-3916.19–3917.44, 13 February 2018 (Day 36).
[2487] Plaintiff’s Closing Submissions, vol 4.2 at [81]–[90].
[2488] T-4030.21–5, 14 February 2018 (Day 37).
[2489] T-4030.31–6, 14 February 2018 (Day 37).
[2490] T-6591.44–48, 20 July 2018 (Day 59).
[2491] T-4031.09–12, 14 February 2018 (Day 37).
[2492] T-6594.39–41, 20 July 2018 (Day 59).
[2493] T-6485.41–6486.01, 18 July 2018 (Day 58).
[2494] T-6486.06–7, 18 July 2018 (Day 58).
[2495] T-6486.37–6487.01, 18 July 2018 (Day 58).
[2496] T-6487.11–21, 18 July 2018 (Day 58).
[2497] T-7.43–4, 10 April 2017 (Day 1).
[2498] T-5911.38–5912.23, 10 July 2018 (Day 53).
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