KEOGH & CO PTY LTD (ACN 151 143 083) T/AS KEOGH & CO	Applicant
v
PETER MAXIMILLIAN PLESS (IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF ROLAND PLESS)	Respondent

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2024 and 25 July 2024
DATE OF JUDGMENT:	16 June 2025
CASE MAY BE CITED AS:	Keogh & Co Pty Ltd v Pless
MEDIUM NEUTRAL CITATION:	[2025] VSC 341

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JUDICIAL REVIEW AND APPEALS — Application for leave to appeal from orders of VCAT — Breach of legal services retainer agreement — Failure to provide advice to standard of reasonably competent solicitor regarding risks of continuing to resist freezing order application in Supreme Court proceeding and potential for compromise after initial hearing — Order for repayment by legal practice to client’s deceased estate of some costs relating to later hearing — Appeal on a question of law — Proposed questions and grounds relating to advocates’ immunity from suit — Proposed questions and grounds relating to duty of care and breach — Proposed questions and grounds relating to causation of loss — Proposed grounds relating to apprehension of bias — Some aspects of proposed questions and grounds relating to advocates’ immunity, duty of care, breach and causation exceeded scope of an appeal on a question of law — Leave granted on an arguable question relating to advocates’ immunity and its supporting grounds but appeal dismissed — No real prospect of success on other proposed questions of law or their supporting grounds — Leave otherwise refused — Victorian Civil and Administrative Act 1998 s 148.

LEGAL PRACTITIONERS — Advocates’ immunity from suit — No error in VCAT’s conclusion that advocates’ immunity did not apply — No ‘intimate’ or ‘functional’ connection between legal practice’s negligence and the way the case was presented so as to bear on the manner in which the court determined it — Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Kendirjian v Lepore (2017) 259 CLR 275.

NEGLIGENCE — Legal practitioners — Breach of legal services retainer agreement — Failure to provide advice to standard of reasonably competent solicitor regarding risks of continuing to resist freezing order application in Supreme Court proceeding and potential for compromise after initial hearing — Order for repayment by legal practice to client’s deceased estate of some costs relating to later hearing — No error of law relating to advocates’ immunity from suit — No real prospect of establishing error of law in relation to duty of care, breach, and causation of loss.

ADMINISTRATIVE TRIBUNALS — Bias — On second day of VCAT hearing, senior member expressed concerns or preliminary views that new material and arguments a party sought to rely upon would raise the need for findings that might be adverse to the party — Recusal request — Senior member of VCAT refused to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keogh & Co Pty Ltd v Pless

Details

AGLC: Keogh & Co Pty Ltd v Pless [2025] VSC 341
Case: [2025] VSC 341
Decision Date: 16 June 2025

CaseChat Overview and Summary

Keogh & Co Pty Ltd sought leave to appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that found the legal practice had breached its retainer agreement by failing to provide advice to the standard of a reasonably competent solicitor. The client had argued that the legal practice had failed to provide adequate advice about the risks of continuing to resist a freezing order application in a Supreme Court proceeding and the potential for compromise after an initial hearing. As a result, VCAT ordered Keogh & Co to repay some costs relating to a later hearing to the client's deceased estate. The legal issues involved the application of advocates’ immunity from suit, the duty of care, breach and causation of loss, and the possibility of bias on the part of a VCAT member.

The Court considered the proposed questions and grounds of appeal, and found that some exceeded the scope of an appeal on a question of law. However, leave was granted on an arguable question relating to advocates’ immunity and its supporting grounds. The Court found that there was no error in VCAT's conclusion that advocates’ immunity did not apply in this case, as there was no ‘intimate’ or ‘functional’ connection between the legal practice's negligence and the way the case was presented so as to bear on the manner in which the court determined it. The Court also found that there was no real prospect of establishing error of law in relation to the duty of care, breach, and causation of loss.

The Court further found that there was no potential basis for a reasonable apprehension of possible bias by the senior member of VCAT. On the second day of the VCAT hearing, the senior member had expressed concerns or preliminary views that new material and arguments a party sought to rely upon would raise the need for findings that might be adverse to the party. However, the senior member refused to recuse himself, giving reasons. The Court found that there was no error by the senior member in this regard. Leave was otherwise refused and the appeal was dismissed.

The Court's final order was that leave to appeal was granted on an arguable question relating to advocates’ immunity and its supporting grounds, but the appeal was dismissed. No real prospect of success was found on the other proposed questions of law or their supporting grounds. Leave was otherwise refused.

Orders