Liprini v Hale

[2020] NSWCA 130

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Liprini v Hale [2020] NSWCA 130

Hearing dates:

6 March 2020

Date of orders:

3 July 2020

Decision date:

03 July 2020

Before:

Macfarlan JA at [1];
McCallum JA at [116];
Emmett AJA at [143]

Decision:

Appeal dismissed with costs.

Catchwords:

NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm

NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party

NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum

NEGLIGENCE – defence of proportionate liability – CivilLiability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer

NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Family Provision Act 1982 (NSW)

Probate and Administration Act 1898 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16

Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18

Bartlett v Coomber [2008] NSWCA 100

Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10

Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135

McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4

Trajkovski v Simpson [2019] NSWCA 52

Category:

Principal judgment

Parties:

Kevin James Liprini (Appellant)
Sandra Neryl Hale (First Respondent)
John Eric McIntyre (Second Respondent)
Jeffrey Edmond O’Brien (Third Respondent)
Danny Kenneth Simpson (Fourth Respondent)
Michael John Sommerville (Fifth Respondent)

Representation:

Counsel:
D A Lloyd / L Beange (Appellant)
A Zahra (Respondents)

Solicitors:
ITC Law Pty Ltd (Appellant)
Sparke Helmore Lawyers (Respondents)

File Number(s):

2019/129821

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 355

Date of Decision:

04 April 2019

Before:

Simpson AJ

File Number(s):

2013/355003

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant and Dr Allan Liprini are brothers. Their father died in 2005 and appointed Dr Liprini as his sole executor. The appellant sought provision out of the father’s estate under the Family Provision Act 1982 (NSW) (“FPA”). In 2006 their mother died and also named Dr Liprini as her sole executor. The respondents (RHS) were the appellant’s solicitors.

On 6 December 2007 the appellant, Dr Liprini and their representatives met before a Court registrar to mediate the appellant’s FPA claim against his father’s estate and a foreshadowed claim by him against his mother’s estate. A settlement was reached and the registrar made orders as sought by the parties. The orders provided for the appellant to receive $770,000 in provision out of his father’s estate and included a notation that the orders were agreed in contemplation of a claim against his mother’s estate. The appellant recovered $458,765 in enforcing the orders.

The proceedings from which the present appeal was brought concerned a claim by the appellant against RHS for breach of a contractual or tortious duty of care. The appellant’s primary case was that RHS breached its duty of care by failing prior to the mediation to commence FPA proceedings against the mother’s estate. The appellant’s alternative case was that RHS had been negligent in the drafting of and advising about the orders made at mediation.

The primary judge rejected both the appellant’s claims on the basis of there being no breach of duty and no causation. Her Honour also rejected the alternative claim on the additional basis that RHS was protected by advocate’s immunity. Her Honour did not find it necessary to deal with RHS’s defence of proportionate liability, which alleged that the appellant’s barrister and Dr Liprini were concurrent wrongdoers for the purposes of the Civil Liability Act 2002 (NSW) (“CLA”).

The principal issues on appeal were:

In relation to the primary claim:

(1) Whether RHS breached its duty of care;

(2) Whether any such breach caused the appellant loss;

(3) If the appellant was successful, to what damages he was entitled;

(4) Whether the barrister and Dr Liprini were concurrent wrongdoers.

In relation to the alternative claim:

(5) Whether RHS was covered by advocate’s immunity.

The Court (by majority comprising McCallum JA and Emmett AJA) dismissed the appeal:

In relation to Question 1 (breach):

(Per Macfarlan JA):

There was a not insignificant, foreseeable risk of harm that if clear and readily enforceable orders against the mother’s estate were not obtained as a result of any settlement achieved at the mediation, any FPA provision might be difficult to recover: [64]. This risk arose from circumstances that virtually all of the appellant’s parents’ assets were held by his mother’s estate, and that Dr Liprini was in financial difficulty and was ill-disposed towards the appellant: [63], [66]. An obvious and easily-adopted method of avoiding these risks was to commence proceedings against the mother’s estate prior to the mediation: [67]. RHS gave no adequate explanation for not doing this: [71].

(Emmett AJA was disposed to conclude that there was a breach: [161]).

(Per McCallum JA, contra):

The central issue is the vexed question of risk of harm: [118]. It is not clear what risk is said to have existed, or at what point it arose, against which the precaution of commencing proceedings against the mother’s estate should have been taken: [126], [131]. The risk of harm cannot be analysed by taking the settlement sum agreed to by Dr Liprini as a fixed premise and confining the prospective analysis to the risk that, absent proceedings against the mother’s estate having already been commenced, that agreement would not be readily enforceable: [134]. The primary judge was also correct to conclude that there was no breach of duty based on the evidence of the experts: [135].

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42; McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476; Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, referred to.

In relation to Question 2 (causation):

(Per McCallum JA and Emmett AJA):

There was no causal connection between the negligence asserted and the loss claimed: [137], [161]. A binding settlement was reached at the mediation: [139], [161]. The appellant had the opportunity to enforce the settlement by obtaining an order under r 54.3 UCPR, which he ultimately did: [139], [163]. It may be the case that different enforcement steps could have been taken but that formed no part of the appellant’s case in negligence: [139], [163].

(Per Macfarlan JA, contra):

The deleterious effect on the appellant’s interests of the absence of extant proceedings against the mother’s estate was apparent immediately after agreement had been reached at the mediation: [76]. The best that could be done was the inclusion of the note in para [4] of the orders, but there was no clear method of enforcing this: [76]. It can readily be inferred that at the mediation an order for provision would have been made against the mother’s estate if it had been possible: [77]. The appellant then would have had a realistic prospect of being able to enforce that order promptly so as to recover the balance of the settlement sum: [88].

Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135; Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18, referred to.

In relation to Question 3 (damages):

(Per Macfarlan JA):

With assets in the mother’s estate well in excess of the appellant’s claim and an immediately enforceable order against Dr Liprini as executor of that estate, the prospects of the appellant recovering the agreed amount would have been high: [94]. An allowance must however be made for contingencies such as the legal advice being less than appropriate and rapid action by Dr Liprini to thwart prompt enforcement: [97]-[98]. A deduction of 20% should therefore be made from the appellant’s claimed damages: [99]-[100].

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4, referred to.

(Per McCallum JA):

The primary judge was correct to conclude that Dr Liprini would have acted precisely as he did and that there was no chance the appellant would have recovered the entirety of the $770,000: [141].

(Emmett AJA did not decide this question).

In relation to Question 4 (proportionate liability):

(Per Macfarlan JA):

RHS did not proffer any substantive argument in support of its contention that the barrister was a “wrongdoer”: [103]. The Court should be slow to make adverse findings in the absence of a carefully put argument to support them: [103]. On the evidence, the barrister advised RHS to commence FPA proceedings against the mother’s estate and it was not his fault that that did not occur: [104].

Dr Liprini also was not shown to be a “concurrent wrongdoer”: [106]. The loss for which the appellant sued in the present proceedings was a different loss to that caused by Dr Liprini: [107]. The former is the loss of the right to claim provision under the FPA from the mother’s estate, and the latter is the loss resulting from the non-payment of Dr Liprini’s debt: [107].

Trajkovski v Simpson [2019] NSWCA 52; Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10, referred to.

(Per Emmett AJA):

The loss or damage claimed by the appellant is the loss of an opportunity to enforce the settlement: [167]. No act or omission on the part of Dr Liprini caused the loss of opportunity: [167].

(McCallum JA found it unnecessary to decide: [141]).

In relation to Question 5 (advocate’s immunity):

(Per Macfarlan JA, McCallum JA at [140] and Emmett AJA at [164] agreeing):

The Registrar could not embody in court orders the agreement that arose from the mediation without the exercise of an independent discretion: [113]. The Registrar actively participated in the mediation and acquired a detailed knowledge of the circumstances: [114]. Through the Registrar, the Court gave its imprimatur to this agreement: [113]. Therefore RHS’s alleged breaches were covered by advocate’s immunity because they were intimately connected with the resolution of the proceedings by court decision: [113].

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16; Bartlett v Coomber [2008] NSWCA 100, referred to.

Judgment

1. MACFARLAN JA: The appellant and Dr Allan Liprini are brothers. Their father died on 21 January 2005 leaving a will appointing Dr Liprini as his sole executor. Following a grant of probate to Dr Liprini, the appellant filed a summons seeking provision out of the estate under the Family Provision Act 1982 (NSW) (“FPA”). At that time, and at material times thereafter, the respondents, who were solicitors practising under the name Redmond Hale Simpson (“RHS”), acted for the appellant.

2. On 26 November 2006 the appellant’s and Dr Liprini’s mother died. She also named Dr Liprini as her sole executor. Dr Liprini obtained a grant of probate of the will on 9 July 2007.

3. Despite the appellant not having commenced FPA proceedings in respect of his mother’s estate, the appellant and Dr Liprini, and their representatives, met on 6 December 2007 to mediate the appellant’s FPA claim against his father’s estate and his foreshadowed claim against his mother’s estate. A settlement was reached and the Equity Division registrar before whom the mediation was conducted made orders as sought by the parties. The orders provided for the appellant to receive provision out of his father’s estate in the sum of $770,000 and included a notation that the orders were agreed in contemplation of a claim against his mother’s estate. After years of attempted enforcement of the orders, the appellant recovered only $458,765, the final payment of which was made in October 2015.

4. In the proceedings from which the present appeal is brought, the appellant claimed damages from RHS for breach of a contractual or tortious duty of care that it owed to him. The appellant’s primary case was that RHS committed such a breach by failing prior to the mediation to commence proceedings on behalf of the appellant making an FPA claim against the mother’s estate. He contended that, as a consequence, he did not obtain at the mediation, orders that were readily enforceable against his mother’s estate.

5. By his alternative case, the appellant claimed that RHS had been negligent in its drafting of and advising about the orders made at the mediation, with the same consequence as was alleged as part of the primary case.

6. By her judgment of 4 April 2019, the primary judge, Simpson AJ, rejected both of the appellant’s claims, first, on the basis that there was no identifiable risk of harm and that the appellant therefore failed to establish a relevant breach of duty and, secondly, on the basis that the appellant did not in any event establish that the loss he suffered was caused by the breach of duty (Liprini v McIntyre [2019] NSWSC 355). As well, her Honour rejected the appellant’s alternative case on the additional basis that RHS was protected by the doctrine of advocate’s immunity. Her Honour found it unnecessary to deal with RHS’s further defence that any award in the appellant’s favour had to be reduced because the barrister engaged by RHS, Mr Mark Lawson, and also Dr Liprini were concurrent wrongdoers with RHS, within the meaning of s 34 of the Civil Liability Act 2002 (NSW) (“CLA”).

7. On appeal, the appellant in essence contended that the primary judge erred:

1. in failing to find that RHS acted in breach of its contractual and tortious duties of care;

2. in failing to find that those breaches of duty caused the appellant loss;

3. in finding that RHS was immune from the suit constituted by the alternative claim; and

4. in making the contingent findings that she made in respect of the appellant’s claimed loss.

8. By Notice of Contention, RHS sought a finding that Mr Lawson and Dr Liprini were concurrent wrongdoers and that the appellant’s claim is therefore an apportionable claim for the purposes of the CLA.

9. With one qualification, the appeal does not raise any issue of disputed fact. The only fact in dispute is an alleged statement made by the appellant to Mr Sommerville of RHS after the appellant departed from the mediation prior to its conclusion to the effect that Dr Liprini “doesn’t pay anyone”. Mr Sommerville denied that the statement was made to him. The primary judge found it unnecessary to resolve the dispute as do I.

10. For the reasons that follow, I consider that the appeal should be allowed.

The factual circumstances

11. By his will, the appellant’s and Dr Liprini’s father (“the father”) bequeathed to Dr Liprini a property at Helensburgh, with the residue of his estate left to his wife. He gave a reason in the will for not making any provision for the appellant.

12. After Dr Liprini obtained probate, the appellant instructed RHS to brief Mr Lawson to provide advice in relation to an FPA claim. Mr Lawson advised that whilst the appellant had some prospects of succeeding, his claim against the father’s estate looked “very weak”.

13. On 18 July 2006 RHS filed on the appellant’s behalf a summons seeking provision out of his father’s estate under the FPA. In October 2006 Dr Liprini swore an affidavit stating that sums totalling in excess of $658,000 had been transferred to his and the appellant’s mother (“the mother”) out of the father’s estate, and that the property at Helensburgh worth $550,000 had been transferred from that estate to Dr Liprini, with the consequence that the value of the estate remaining undistributed was only about $30,000.

14. When the mother died on 26 November 2006, she left a will appointing Dr Liprini as her sole executor and leaving the whole of her estate to him.

15. On 24 January 2007 RHS wrote to Owen Hodge Lawyers, solicitors for Dr Liprini, asking whether an application for probate had been made in relation to the mother’s estate and suggesting the possibility of “attending an informal mediation in an attempt to settle this matter”. Owen Hodge Lawyers responded that steps were still being taken to finalise the probate application and then on 22 March 2007 it notified RHS that it had lodged the application. On that date, Owen Hodge Lawyers also provided to RHS an inventory of property in the mother’s estate. It showed an estimated net value of the estate of about $2.7 million, including about $1.5 million in real estate, being a property at Sylvania Waters, and about $1.1 million in current bank accounts. It valued the estate’s interest in the father’s estate at $29,725.73.

16. The fourth respondent, Mr Simpson, who was then looking after the matter at RHS, sent the inventory to the appellant. In response the appellant instructed RHS on 3 April 2007 to commence FPA proceedings against the mother’s estate. On about this date, the fifth respondent, Mr Sommerville, took over carriage of the matter on behalf of RHS. The appellant confirmed his instructions to commence these proceedings in an email to RHS of 11 April 2007.

17. At a conference with RHS on 8 May 2007, Mr Lawson advised that “we need to put on a Summons in respect of the mother’s estate once probate is granted” and “get them both listed and send off to mediation”. He advised that the only evidence required was an affidavit by Mr Sommerville annexing an affidavit that the appellant had sworn for the purposes of the FPA proceedings against his father’s estate.

18. By letter of 8 May 2007 RHS enquired of Owen Hodge Lawyers whether probate had been granted in respect of the mother’s estate and advised that the appellant wished to make an FPA claim on that estate as well as that of his late father.

19. On 31 May 2007 the appellant again confirmed his instructions to RHS to commence FPA proceedings in respect of his mother’s estate.

20. By letter of 1 June 2007 from Mr Lawson to RHS, Mr Lawson advised that he was concerned about the appellant’s prospects of success “in this action” (apparently referring to the FPA claim against the father’s estate). He added however that, subject to the appellant satisfying RHS that he had a genuine need for provision, he would be hopeful of arranging a mediation in the near future with a view to settling the claim “for a reasonably modest sum”.

21. On 22 June 2007 RHS wrote to Owen Hodge Lawyers enquiring as to whether progress had been made in obtaining a grant of probate in respect of the mother’s estate. Such a grant was subsequently obtained on 9 July 2007 although RHS appears not to have become aware of this until it was advised of it by Dr Liprini’s solicitors on 5 December 2007 (see [31] below).

22. On 27 July 2007 Owen Hodge Lawyers advised RHS that it was no longer instructed to act on behalf of Dr Liprini. As a result, RHS wrote to Dr Liprini directly on 31 July 2007 asking for a copy of the grant of probate in respect of the mother’s estate as soon as it was granted and noting the appellant’s intention to commence FPA proceedings in respect of that estate once probate was granted.

11. On 3 September 2007, Mr Lawson reported by letter to RHS:

• that he had appeared for the appellant at a directions hearing that day;

• that the appellant’s brother was no longer working and was in financial difficulty, as a result of which Dr Liprini wished to make an interim distribution of about $20,000 to himself from the father’s estate;

• that Mr Lawson did not see any difficulty with this course and advised that the appellant should agree to consent orders allowing that to occur;

• that Dr Liprini’s counsel had suggested a mediation take place; and

• that arrangements should be made for the appellant to swear an affidavit as to his financial means.

24. On 4 September 2007 RHS sent a letter to the appellant advising that the appellant should consent to the interim distribution and raising the possibility of mediation.

25. In response, the appellant advised by email that:

• if Dr Liprini was to receive an interim distribution, the appellant wanted one also, as the appellant was not working;

• the mediation should be between the solicitors as Dr Liprini had not taken previous advice;

• it was not correct that Dr Liprini was not working as he was still seeing patients in his medical practice

• that he believed Dr Liprini did not want to be in the same room as him because the appellant intimidated him; and

• RHS should “[r]emember [Dr Liprini] is an expert of drugs for all purposes to suit his needs” (sic).

26. On 24 September 2007 RHS wrote to Mr Lawson instructing him to appear at a directions hearing to be held on 25 September 2007 and noting that the appellant was still waiting for Dr Liprini to obtain probate in relation to the mother’s estate (it had in fact been obtained two and a half months earlier – see [21] above).

27. On 25 September 2007 the Court made a consent order fixing the proceedings for mediation in the Supreme Court on 6 December 2007 before a Registrar of the Court.

28. On 5 October 2007 the appellant emailed RHS with information concerning his debts, which he asserted justified his 50/50 claim. He added that if his brother did not agree to that division, he thought it would be a waste of his money and time coming to Sydney to attend the December mediation.

29. In a telephone conference on 23 November 2007, Mr Lawson advised the appellant and RHS that it was unlikely that the appellant would obtain 50% of the combined estates, that determinations were needs based and that he should settle for $100-150,000. On 26 November 2007 the appellant advised RHS that he would not accept $150,000 and would prefer to mediate. By a letter sent on the following day, RHS repeated to the appellant the advice that Mr Lawson had given.

30. On 27 November 2007 RHS wrote to LawPartners, which was by then acting as Dr Liprini’s solicitors, asking “what is happening with regard to” probate of the mother’s estate and “the asset situation with that Estate”.

31. On 5 December 2007 LawPartners wrote to RHS enclosing a document giving an estimate of the value of the mother’s estate. This appears to have been the inventory referred to in [15] above. The letter also advised that probate had been granted in respect of the mother’s estate.

32. The primary judge gave the following description of what occurred at the mediation held on 6 December 2007:

“[30] Although no proceedings in respect of the estate of Anne Liprini had been commenced, it is quite apparent, and not disputed, that all involved conducted the mediation on the basis that both estates were involved. For example, counsel for Dr Liprini began by stating the value of each estate - $580,000 in James Liprini’s estate (notwithstanding the affidavit stating that only $30,000 remained undistributed – the discrepancy is unexplained), $2.7 million in Anne Liprini’s estate. Given his affidavit evidence that only $30,000 of James Liprini’s estate remained undistributed, Dr Liprini’s requests for consent to distributions are consistent only with an appreciation that Anne Liprini’s estate was also in contest. The mediation proceeded on the basis that the total available for distribution was (approximately) $3.3 million – that is, including Anne Liprini’s estate.

[31] The offers made during the mediation also reflect that fact. The plaintiff made an opening offer of $1.6 million; Dr Liprini offered $100,000. Eventually, the plaintiff agreed to have Mr Lawson offer to settle for $750,000 plus costs. If that were not agreed, he said, “I’ll walk” (which I take to mean that he would abandon the mediation and litigate). What happened next is in dispute. Mr Sommerville’s version is as follows. The plaintiff asked:

‘Say if we settle today, how long will my brother have to pay me the money?’

to which Mr Lawson replied:

‘Your brother will have 28 days to pay you the settlement figure before interest starts accruing. Your brother will pay you before that because he won’t want to pay you interest on top of the settlement amount.’

[32] Mr Sommerville’s evidence was that the plaintiff remained present at the mediation until 1 pm when he left. Prior to leaving he gave instructions to settle on the basis that he received $750,000 as a legacy and $20,000 towards his legal costs. He made it plain that he would not move from those figures. After that conversation the plaintiff left the mediation.

[33] The plaintiff’s version, (given in his affidavit) of what happened is as follows:

‘45. My understanding was that Mr Sommerville or Mr Lawson made an offer to settle the proceedings by having the combined total of Father’s and Mother’s estates equally distributed between my Brother and me. The offer was not accepted and, to the best of my recollection, no counter offer was made.

46. I recall that the mediation proceeded for most of the day. Towards the end of the day, I had a conversation with Mr Sommerville as follows:

Me: ‘the mediation is a waste of time. I can’t see any point in proceeding with it’.

[Mr Sommerville]: ‘We should try and resolve the matter. We should try to ask for $750,000 plus $20,000 toward your legal fees.’

Me: ‘You know that my view is my brother won’t agree.’

[Mr Sommerville]: ‘Do we have your instructions to accept such an offer if they agree to it?’

Me: ‘Okay, but my brother won’t pay, he doesn’t pay anyone, so why is he going to agree to pay this?’

[Mr Sommerville]: ‘There is $1.2 million in the bank. The money can come straight out of the bank to pay you’.

47. I remember signing a written authority for Mr Sommerville to settle the proceedings on these terms and left the mediation …’

[34] It is not in dispute that the plaintiff left the mediation before it was finalised. Mr Sommerville’s evidence (undisputed) was that Dr Liprini agreed to pay the plaintiff a sum of $770,000 inclusive of costs. He said that counsel for Dr Liprini raised the issue of a form of order that would bind both estates and there was some discussion about how this could be achieved.”

33. Short Minutes of Order were then prepared by Mr Lawson and signed by counsel for both parties. The orders were then made by the Registrar in the following terms:

“1. Order under section 7 of the Family Provisions [sic] Act that provision be made in favour of the Plaintiff out of the Estate of the late James Natale Liprini in the sum of $750,000;

2.   That the Plaintiff’s costs agreed in the sum of $20,000 be paid out of the Estate of the late James Natale Liprini; and,

3.   Order that the Defendant’s costs be paid out of the Estate of the late James Natale Liprini on an indemnity basis.

The Court notes:

4. The above orders were agreed by the parties in contemplation of a claim by the Plaintiff against his mother’s estate under section 7 of the Family Provisions [sic] Act. The Plaintiff agrees to execute a Deed, if called upon to do so, releasing the Defendant (as executor of the Estate of his late mother) from any claim under section 7 of the Family Provisions [sic] Act.”

34. On 9 January 2008 RHS wrote to LawPartners complaining that the settlement sum agreed at the mediation had not been paid to its client by 3 January 2008 which it said was the date by which it was due to be paid (presumably this was a reference to the date on which interest starts accruing on the amount of a judgment debt under s 101(3) of the Civil Procedure Act 2005 (NSW)). In response, LawPartners acknowledged that payment had been due within 28 days but said that it had been unable to obtain instructions from Dr Liprini. RHS attempted thereafter to speak to Mr Kerem of LawPartners but was unsuccessful.

35. By letter of 17 January 2008 RHS told LawPartners that it had its “instructions to execute the Judgment, unless payment of the amount due to our client is received promptly”. By letter of 21 January 2008 RHS however advised the appellant that a search of the Sylvania Waters property (the principal asset of the parents) revealed that it was registered in the appellant’s mother’s name only. That it was an asset of the mother’s estate should however have already been clear to RHS from the inventory it received on 22 March 2007 ([15] above). The letter continued to the appellant:

“Of course we only have orders against your brother as the Executor of the Estate of your late father. Accordingly, I can’t try and execute Judgment against that property.

I am currently carrying out searches on the Rajani Rd, Helensburgh property and the Allgas Street, Slacks Creeks property. Those searches will reveal whose name the properties are registered in. If they are registered in your late father’s name, I can try and execute Judgment against those properties to at least ‘hurry up’ your brother. …”

36. By letter of 23 January 2008 RHS further advised the appellant:

“I have been unsuccessful in finding any real estate in the name of your late father’s Estate.

I’ve previously advised you that Sylvania Waters is registered in your late mother’s name. Helensburgh is registered in your brother’s name and the Queensland property is registered to some Trustees.

Accordingly there is not a lot I can do at the moment.

I have spoken to Mark Lawson, barrister. He can’t think of any angles to get the money earlier. He simply says we will have to wait until your brother gets back from Fiji.

The only option I can suggest is instructing me to issue a Garnishee Order against any controlled money account that the lawyers may hold. The problem with doing that is that by the time I get it all organised and the appropriate orders are made by the Supreme Court, your brother will have returned from overseas, as I note the other side told us he would be returning at the end of January. I am therefore concerned about incurring those costs, when your brother will be back soon, in any event.

Further, if the solicitors have transferred your late father’s Estate’s money into a controlled money account in the name of your late mother’s Estate, then any Garnishee will fail, as we only have Judgment against your late Father’s Estate.

Would you please telephone me upon receipt of this letter to discuss.”

37. RHS subsequently conveyed to LawPartners the appellant’s threat to “issue execution against the Estate” and, later, to bankrupt Dr Liprini but these did not result in Dr Liprini paying the debt.

38. By telephone call of 14 February 2008, Mr Lawson advised RHS that the best means of recovering the settlement sum was by contempt proceedings against Dr Liprini, asserting “that the Court made the following order and that it wasn’t complied with etc etc”. Mr Lawson subsequently settled the relevant documents and on 3 March 2008 RHS filed a notice of motion in the proceedings relating to the father’s estate alleging that Dr Liprini committed a contempt of court by not paying the settlement sum. Brereton J of the Equity Division dismissed the motion on 11 April 2008, holding that the order in question was an order for provision under the Family Provision Act, and that it did not take effect as a court order but as a codicil. His Honour said that he did not see “how interference with an order, the effect of which is not a binding command of the Court, but one having the effect of altering a Will could be … a contempt [of Court]”.

39. On Mr Lawson’s advice, RHS filed on 23 April 2008 on behalf of the appellant a summons seeking relief including:

• an order that Dr Liprini pay to the appellant the sum of $770,000;

• a declaration that Dr Liprini was personally liable for payment of the settlement sum of $770,000;

• alternatively, further orders for provision out of the estate and/or notional estate of James Liprini and/or Anne Liprini under ss 7 and 8 of the FPA.

40. Steps were taken during the remainder of 2008 for preparation for the hearing, in accordance with Mr Lawson’s advice. The summons eventually came on for hearing before Nicholas J on 9 July 2009. In his judgment of 10 July 2009, his Honour concluded:

“[27] The orders for the purposes of construction should be read and understood as a whole. Their language is plain and unambiguous. The short minutes resulted from a mediation in which the parties and their lawyers participated. It may be assumed that in that exercise they had regard to their statutory duty under s 27 Civil Procedure Act to participate in good faith. It follows, in my opinion, that it may reasonably be inferred, just as the parties intended, that the defendant agreed to be bound to procure the fulfilment of the agreement on his part. As I have indicated, it is necessary to consider the orders as a whole. In my opinion in unambiguous language, they demonstrate the intention of the parties to resolve the then present claim, as well as any potential claim against the mother’s estate, which is self evident from the terms of the agreement which was incorporated in the short minutes referable to a potential claim by the plaintiff against the mother’s estate. It follows, in my opinion, that the parties proceeded as a consequence of the mediation process on the assumption and with the intention that the defendant would take such steps as were necessary to honour the agreement he had made, which would involve drawing on assets in the mother’s estate if need be.

[28] Finally, in my opinion, it was intended by these orders that the plaintiff would receive a total sum of $770,000 in settlement of claims against both estates of which the defendant, as executor, was in control. It follows, that by agreeing to these orders, the defendant was effectively agreeing to arrange for the provision of the appropriate amounts.”

41. His Honour then made orders under r 54.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) including the following:

“1.   A declaration that on its true construction the effect of the orders made on 6 December 2006 that the sums for payment therein would be payable:

(a)   From the estate of the late James Natali [sic] Liprini; and

(b)   From the estate of the late Anne Mary Liprini,

and that the Defendant would be personally liable for the payment of those sums to the Plaintiff;

2. An order under Rule 54.3 of the Uniform Civil Procedure Rules that the Defendant pay to the Plaintiff the sum of $770,000.00;

…”

42. Rule 54.3 of the UCPR, upon which his Honour relied, is relevantly in the following terms:

“…

(3) Proceedings may be brought for an order directing any executor, administrator or trustee:

…

(d) to do or abstain from doing any act”.

43. Dr Liprini did not pay the amount he was ordered to pay. Instead, he filed a Notice of Intention to Appeal, followed on 8 October 2009 by a Notice of Appeal. The appeal was summarily dismissed on 24 May 2010 following application by the appellant. In the meantime, Mr Lawson advised RHS that Nicholas J’s orders did not allow for a caveat to be lodged over the Sylvania Waters property. RHS then issued, on behalf of the appellant, garnishee orders directed to four banks and a bankruptcy notice. On 3 November 2009, Dr Liprini filed an application to set aside the bankruptcy notice and then, various bankruptcy and appeal proceedings ensued, culminating in Dr Liprini’s bankruptcy. The appellant subsequently proved in Dr Liprini’s bankrupt estate and received a total of $458,764.

The judgment at first instance

Negligence – the primary case

44. The primary judge noted at the outset that the appellant’s case was pleaded in both contract and tort. As both bases of claim however alleged a failure to exercise reasonable care and skill, her Honour found it unnecessary to differentiate between the two causes of action.

45. Her Honour stated that the appellant’s primary case rested on five factual aspects of the evidence as follows:

“(i)   that the plaintiff had, on three separate occasions, instructed RHS to commence proceedings in relation to Anne Liprini’s estate;

(ii)   that on 8 May 2007, counsel advised RHS to commence proceedings;

(iii)   that there was no barrier to the commencement of proceedings; the apparent reason for delay was Mr Sommerville’s preference to wait for a grant of probate;

(iv)   in cross-examination Mr Sommerville agreed that the commencement of proceedings was crucial to protecting the plaintiff’s rights;

(v)   that RHS ought to have been more diligent in seeking information about the grant of probate” (Judgment [71]).

46. Her Honour noted that there was no issue but that RHS owed the appellant a duty of care. Her Honour stated that the duty might properly be characterised as a duty to take precautions against a risk of harm that had the qualities identified in s 5B(1) of the CLA. Section 5B is in the following terms:

5B General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless—

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

47. Her Honour continued:

“[109] To focus initially on the precautions that should have been taken, without first identifying the risk of harm against which those precautions should have been taken, is to pass over a fundamental question: what was the risk of harm? Attention must be directed to that question at the outset. In this case, it was not. Neither party attempted to identify a risk of harm that could arise from the failure to commence proceedings prior to the mediation. When attention is focused on that question, it becomes difficult to see what possible risk of harm existed that could have been avoided by the commencement of proceedings prior to the mediation. Accepting, as I must, having regard to the decision in [Coles Supermarkets Australia Pty Ltd vBridge (2018) NSWCA 183], that some retrospectivity is permitted in the identification of the risk of harm, I am nevertheless of the view that that risk must be shown to have existed at the time that it is said that the precautions should have been taken. That must be, at the latest, 5 (or possibly 6) December 2007. But what risk of harm then existed? Anne Liprini died on 26 November 2006. The plaintiff had until 26 May 2008 to commence proceedings. I see no risk of harm in proceeding to mediation in respect of James Liprini’s estate without proceedings in relation to Anne Liprini’s estate having been commenced. Nor can I see any risk of harm in including Anne Liprini’s estate in the mediation, notwithstanding that proceedings had not been commenced.”

48. Later, her Honour said that the absence of proceedings against the mother’s estate at the time of the mediation was able to be overcome by the parties agreeing, as they did, to include the mother’s estate in their negotiations. Her Honour continued:

“[117] … Absolutely nothing was put at risk by the adoption of the course taken. Had Dr Liprini not agreed to negotiate with respect to both estates the mediation would simply have come to an end.

[118] … The plaintiff achieved precisely the result he would have achieved had proceedings in relation to Anne Liprini’s estate been formally commenced. The eventual failure of Dr Liprini to honour the obligations he had undertaken was unrelated to the circumstances in which the mediation proceeded.

…

[124] It might be said – taking permissible retrospectivity to its outer limits – that the risk of harm was what in fact eventuated – that Dr Liprini would fail to honour the obligation to which he agreed. But that was not a risk of harm from proceeding with the mediation in the absence of commenced proceedings. It was a risk to which every settlement is subject, and was not avoidable by the commencement of proceedings. It would have existed whether or not proceedings in respect of Anne Liprini’s estate had been commenced.”

49. As to whether a reasonable practitioner in RHS’s position would have taken the step of commencing FPA proceedings against the mother’s estate prior to the mediation, her Honour said:

“[128] There is no evidence that the plaintiff gave any express or implied instructions as to when to commence the proceedings. It was entirely reasonable for RHS not to do so prior to a grant of probate provided they did not allow the limitation period to elapse. In the absence of a grant of probate, Dr Liprini was not at liberty to administer the estate. The plaintiff’s case in contract was never framed as a failure to comply with instructions. It will be remembered, also, that Mr Sommerville was waiting for instructions from the plaintiff concerning his financial position.”

50. The primary judge also said that the appellant’s case failed on the issue of causation, concluding:

“[140] … The plaintiff’s claim is based on the unsustainable proposition that, but for the failure of RHS to commence proceedings in relation to Anne Liprini’s estate prior to the mediation, he would have recovered the whole of the agreed settlement sum. The proposition is unsustainable because commencement of proceedings would not have prevented Dr Liprini from defaulting on his obligations. The inability of the plaintiff to recover the whole of the $770,000 settlement sum was caused, not by the absence of commenced proceedings, but by Dr Liprini’s default. It is likely, indeed virtually certain, that that default would have occurred, regardless of the state of the formal proceedings.”

Negligence – the alternative case

51. The primary judge summarised the appellant’s alternative case as follows:

“[141] … The plaintiff’s alternative case, therefore, was three tiered: (i) that RHS ought to have proposed certain terms to Dr Liprini’s legal representatives; (ii) that if Dr Liprini rejected those terms, RHS ought to have advised the plaintiff to proceed to a hearing of his claims (on both estates); and (iii) that RHS ought to have warned him of the risks of entering into an agreement that did not contain those terms.”

52. The orders that the appellant contended that RHS should have sought at the mediation were identified by her Honour as orders that:

“(a)   bound Dr Liprini in his personal capacity;

(b)   included provision for security; and

(c)   specified a time for payment, in default of which interest would become payable” (Judgment [146]).

53. Her Honour noted that the first proposed order, as eventually put, was an order for “designation as notional estate of assets from James Liprini’s estate distributed to Anne Liprini before her death” (Judgment [147]).

54. After considering the appellant’s contentions concerning these proposed orders, her Honour concluded that the appellant “has not established breach of RHS’s duty to him in the formulation of the terms of the agreement [at the mediation] and the short minutes of order, nor in the advice given to him with respect to those orders” (Judgment [167]).

55. Her Honour also found that the alternative basis of claim failed on the causation issue. Her Honour found that if RHS had done what it was alleged that it should have done “Dr Liprini would have conducted himself exactly as he in fact did, and failed to pay the sum awarded – with consequences that in fact eventuated” (Judgment [171]).

Civil Liability Act s 5O

56. Her Honour then addressed, and rejected, a defence raised by RHS under s 5O of the CLA, concerned with the standard of care relevant to professionals. As her Honour’s conclusion with respect to this defence is not challenged on appeal, no further reference to it need be made.

Advocate’s immunity

57. Her Honour then addressed RHS’s defence of advocate’s immunity. Her Honour referred to Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 as identifying that “for the work of an advocate to attract the immunity it must have an ‘intimate connection’ with the conduct of the case in court such as to affect its outcome by judicial decision” (Judgment [182]). Her Honour continued:

“[183] The majority in the High Court held that the immunity does not extend to acts or advice of the advocate which do not move the litigation towards a determination by a court. Specifically, the immunity does not extend to advice that leads to a settlement agreed between the parties: see [38]-[39].”

58. Her Honour concluded that advocate’s immunity did not provide RHS with a defence to the appellant’s first basis of claim because “[t]he asserted breach is sufficiently removed from the outcome of the proceedings as not to be ‘intimately connected’ with the conduct of the case and the outcome” (Judgment [190]).

59. Her Honour found otherwise in respect of the appellant’s alternative case, holding that it did have the necessary ‘intimate connection’, particularly “when regard is had to the role of the Court, constituted by the Registrar, in the making of the orders” (Judgment [191]). Her Honour referred in this respect to the decision of this Court in Bartlett v Coomber [2008] NSWCA 100 holding that the Court is required to be satisfied of the appropriateness of making FPA orders, notwithstanding that the parties may be agreed that they should be made.

Damages

60. In addressing damages, her Honour noted that the appellant’s case was that he lost the chance of recovering the difference between the $770,000 agreed at mediation and the amount of his ultimate recovery from Dr Liprini’s bankrupt estate. Her Honour however concluded:

“[195] I am satisfied that, no matter what proceedings had been commenced and no matter what orders had been formulated, Dr Liprini would have acted precisely as he did. That means that there was no chance that the plaintiff would have recovered the entirety of the $770,000.

[196] The plaintiff also claimed amounts referable to the litigation in which he became involved in seeking to enforce the settlement, including collateral litigation against Dr Liprini’s trustee in bankruptcy. In my opinion, that was not a consequence of any asserted breach of duty on the part of RHS at or prior to the mediation, but a consequence of Dr Liprini’s intransigence.”

Proportionate liability

61. In light of the appellant’s lack of success on other grounds, her Honour found it unnecessary to deal with RHS’s defence of proportionate liability.

Determination of the appeal

The primary claim

Breach of duty

62. As is apparent from the terms of s 5B of the CLA, and from the primary judge’s judgment, a plaintiff in a case such as the present needs to establish the existence of a requisite risk of harm and that a reasonable person in the position of the defendant would have taken identified precautions against that risk. Despite its heading (“Duty of Care”), s 5B is concerned with breach of duty (Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]).

63. On 25 September 2007 consent orders were made in the appellant’s FPA proceedings concerning his father’s estate fixing a mediation to be conducted before a Registrar of the Court on 6 December 2007. RHS was aware at that time, and had been aware for some months, that virtually all of the appellant’s parents’ assets were held by the estate of his mother, and not that of his father. Moreover RHS had been told earlier in September 2007 that Dr Liprini’s counsel had informed the appellant’s counsel that Dr Liprini was no longer working and was in financial difficulty. It had also been told by its client early in September 2007 that Dr Liprini did not want to be in the same room as him because he said that the appellant intimidated him.

64. These matters gave rise to a not insignificant, foreseeable risk that if clear and readily enforceable orders against the mother’s estate were not obtained as a result of any settlement achieved at the mediation, any FPA provision that Dr Liprini agreed should be made in favour of the appellant might be difficult to recover.

65. The fact that the proceedings to be mediated related only to the relatively worthless father’s estate and that no proceedings had been commenced in relation to the valuable mother’s estate gave rise to a not insignificant risk that such clear and readily enforceable orders might not be obtained. If there were to be no proceedings extant against the mother’s estate at the time of the mediation (as in fact occurred) it is difficult to see how it could have been expected that the Registrar (or any other officer of the Court) could make the straightforward FPA order in relation to the mother’s estate that the appellant wanted. Anything less, such as an order against Dr Liprini in his personal capacity, could not have been expected to be adequate in light of the information, albeit unsubstantiated, that RHS had that Dr Liprini was in financial difficulty.

66. The fact that RHS might have contemplated that, by some means or other, if the parties agreed on an overall settlement, that orders could be crafted which might have an equivalent effect to a straightforward FPA order against the mother’s estate does not dispel the risks to which I have referred. RHS was on notice from what its client had said to it that Dr Liprini was ill-disposed towards his brother and might therefore take advantage of any means presented to him, by for example orders which were not clear and readily enforceable, to attempt to deny the appellant the fruits of any agreement reached at the mediation.

67. There was an obvious and easily-adopted method of avoiding these risks, namely, the commencement prior to the mediation of proceedings in relation to the mother’s estate. On three occasions (being 3 April, 11 April and 31 May) RHS’s client, the appellant, instructed it to do this. As well, on 8 May 2007 counsel briefed by RHS, Mr Lawson, advised RHS that FPA proceedings in relation to the mother’s estate should be commenced once probate had been granted. RHS informed Mr Lawson on 24 September 2007 that it was still waiting for that probate to be granted. RHS should however have known that it was granted over two months earlier. When RHS was not advised of its grant notwithstanding RHS’s awareness that an application for the grant had been made on or prior to 22 March 2007, RHS should have searched at the Court and ascertained that the grant had been made. This was especially so when RHS was aware that its client’s claims were to be mediated in December with a view to the appellant obtaining an FPA order against his mother’s estate.

68. The expert witnesses called by the parties gave evidence consistent with these conclusions.

69. First, Mr Richard Neal, called by the appellant gave evidence that commencement of FPA proceedings against the mother’s estate was a “no-brainer”. He said that “[i]t should have been done earlier and certainly should have been done before the mediation”.

70. Secondly, Ms Pamela Suttor, who was called by RHS, agreed with this point and agreed that “any competent practitioner” would have caused proceedings to be commenced before the mediation. Ms Suttor opined that prior to the mediation RHS should have followed up Dr Liprini’s solicitors about whether probate had been granted and, if not informed that it had been, conducted a search at the Court. Mr Neal said this as well. I add that in any event Mr Sommerville agreed in cross-examination that proceedings could have been commenced even before a grant of probate.

71. In his evidence, Mr Sommerville gave no adequate explanation for not commencing proceedings before the mediation. He said in his affidavit that he considered that RHS was not in a position to commence proceedings because it did not have up-to-date financial information from the appellant. In cross-examination he however agreed that that statement was “poor wording” and in reality he was simply intending to say that it was his practice to file an affidavit by the plaintiff with the initiating summons in FPA claims. He then had to concede that Mr Lawson had advised him that all that was necessary to be filed was a solicitor’s affidavit annexing the appellant’s affidavit already filed in the proceedings against his father’s estate.

72. Mr Sommerville also agreed in cross-examination that as at the date of his 8 May 2007 conference with Mr Lawson, commencement of proceedings against the appellant’s mother’s estate, as Mr Lawson advised, was “crucial to protecting [the appellant’s] rights” and that Mr Lawson advised that RHS should “get [both sets of proceedings] listed and send [them] off for mediation”.

73. It follows from the above that I respectfully disagree with the primary judge’s conclusion that there was “no risk of harm in proceeding to mediation in respect of James Liprini’s estate without proceedings in relation to Anne Liprini’s estate having been commenced” (see [47] above). As I have said, in my view there was a not insignificant risk that if the mediation produced an agreement between the parties, the appellant would not obtain a clear and readily enforceable order.

74. Both at first instance and in his written submissions on appeal the appellant failed to articulate his case on risk in any satisfactory manner. His counsel elicited from Mr Sommerville in cross-examination and relied in address on the proposition that commencement of proceedings against the mother’s estate was “crucial to protecting” the appellant’s rights. Likewise he elicited evidence to similar effect from both experts. Beyond that, the appellant’s case assumed, without stating expressly, that the reason for the correctness of this proposition was that if the appellant was to obtain the straightforward FPA order against his mother’s estate that he sought (being in the same terms as the order he did in fact obtain against his father’s estate), there would have to be proceedings on foot in relation to that estate in which the order could be made. If that were not the case, complications and delays in obtaining a clear and enforceable order against the appellant’s potentially disputatious brother were likely to arise, as they in fact did.

75. The only risk of harm that the primary judge found existed was that Dr Liprini would fail to honour the obligations he assumed at the mediation. This, her Honour said, was not one related to the absence of FPA proceedings against the mother’s estate – it was a risk that existed irrespective of whether those proceedings were commenced, it eventuated and it was the cause of the appellant’s loss. Again with respect, I disagree. Although there was always a risk that Dr Liprini would not honour the agreement, that was precisely why it was important for RHS to obtain readily enforceable orders for the appellant. In acting for a claimant, a solicitor must take reasonable steps to ensure that his or her client is able to obtain the fruits of what the solicitor is instructed to seek in litigation or by agreement. In a context such as the present, a solicitor would have been remiss if, for example, he or she did not attempt to dissuade the client from accepting simply a handshake agreement. Clearly the solicitor here had to take reasonable steps to put the appellant in a position to obtain a clear and enforceable FPA order against his mother’s estate.

Causation

76. The deleterious effect on the appellant’s interests of the absence of extant proceedings against the mother’s estate was apparent immediately after agreement had been reached at the mediation on the settlement sum. At that point, as recorded by Mr Sommerville in his evidence, the opposing counsel turned to discuss with each other how an order could be made “which will bind both estates”. After Mr Rush, the barrister for Dr Liprini, consulted by telephone with a senior counsel in his chambers as to how this might be achieved, counsel at the mediation agreed on the form of short minutes of order referred to in [33] above and the Registrar before whom the mediation was conducted made the orders by sealing them with the Court seal. As no proceedings against the mother’s estate were on foot, of necessity the orders did not include an order under the FPA for provision from that estate. The best that could be done was the inclusion of the note in para [4] of those orders (see [33] above) but there was no clear method of enforcing this, as illustrated by the tortuous events that ensued.

77. Order 1 was a straightforward order for provision from the father’s estate. This was made in the FPA proceedings against the father’s estate, as demonstrated by the Court heading to the orders. Such an order could not have been made in relation to the mother’s estate in the absence of extant proceedings against it. It can however readily be inferred that such an order would have been made if it had been possible. This can be inferred from the terms of the discussion between counsel referred to in the last preceding paragraph and the undisputed fact that the agreement was intended to encompass both the mother’s and father’s estates. As well Mr Sommerville conceded in cross-examination that that would likely have occurred.

78. What occurred in January 2008 and beyond revealed the inadequacy from the appellant’s perspective of what he had obtained at the mediation. On 17 January 2008 RHS conveyed a threat to LawPartners, Dr Liprini’s solicitors, “to execute the judgment” but by letter of 21 January 2008 to its client it advised the appellant that it could not “execute Judgment against [the Sylvania Waters] property” because it formed part of the mother’s estate and “we only have orders against your brother as the Executor of the Estate of your late father” (see [35] above).

79. Later, Mr Lawson suggested bringing the contempt proceedings that were the subject of Brereton J’s judgment of 11 April 2008 and then the proceedings referred to at [39] above which were disposed of by Nicholas J on 10 July 2008 were brought. Further litigation ensued over the following years until the appellant’s eventual receipt of $458,764 from Dr Liprini’s bankrupt estate.

80. It is apparent from the description above of what occurred in January and February 2008 that if the appellant had then had the benefit of a clear order for provision against his mother’s estate, straightforward steps to enforce it would have been taken. This was supported by the expert evidence of Mr Neal and Ms Suttor and was admitted by Mr Sommerville of RHS in cross-examination.

81. RHS was well aware of the appellant’s wish to have the settlement enforced and it advised the appellant promptly, with the assistance of Mr Lawson’s advice, what the appellant’s position was. The only course of action that Mr Lawson could see was available in light of the terms of the mediation orders was to commence the contempt proceedings, which was done on 3 March 2008.

82. If the appellant had at the mediation obtained a clear order for provision from his mother’s estate, he would have had the opportunity in January 2008, and beyond, to seek relief, both urgent and final, under r 54.3 of the UCPR to enforce his order for provision. An alternative would have been an application for an order to do this under s 84 of the Probate and Administration Act 1898 (NSW).

83. Under that rule the appellant could have sought and obtained orders for preservation of the assets of the mother’s estate pending final enforcement of the order he had obtained with Dr Liprini’s consent. When their advice was sought as to enforcement measures (as it was), it can be assumed that, if the appropriate order had been obtained at the mediation, the solicitor, RHS, and the barrister, Mr Lawson, would have advised the appellant to seek orders under this rule or s 84 immediately.

76. There seems to have been no suggestion at first instance, nor was there on appeal, that significant assets of the mothers estate referred to in [15] above were dissipated during or before the couple of months following the mediation when it could be expected that, had the appellant obtained an order for provision at the mediation, the appellant could have taken enforcement action in relation to the estate. I note in this regard that the primary judge said that, speaking of the time of the mediation, “[t]here were adequate funds in the estate of Anne Liprini out of which to meet the agreed payment” (Judgment [145]). RHS quoted this statement in its submissions on appeal, with apparent endorsement. Further, the appellant stated in his written submissions at first instance that there was no reason to suppose that by January 2008 there had been any transfer of money or other assets out of the mother’s estate. He stated also that “even by July 2009 [Dr Liprini] still had significant money in the bank and there was the unencumbered real property in the mother’s estate”. This is also supported by the finding of Nicholas J on 10 July 2009 that the “balance of the mother’s estate is largely undistributed”.

77. The appellant alleged in his Amended Statement of Claim that by reason of RHS’s breach of duty he lost the opportunity to recover from Dr Liprini the full amount of the agreed settlement sum of $770,000, his actual recovery being $462,498, plus interest. As well he asserted that he lost the opportunity to avoid incurring the losses he suffered in seeking to enforce the settlement.

78. This Court’s decision in Mal OwenConsulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 and the High Court’s decision in Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 refer to the recovery of damages for loss of a commercial opportunity in circumstances where obtaining the benefit of the opportunity had been dependent on the conduct of a third party. The principal issues that arose in those cases do not however arise in the present case as I am satisfied on the balance of probabilities that what the appellant lost was at least a realistic prospect of recovering the full amount of the settlement sum and that if proceedings against the mother’s estate had been commenced prior to the mediation, Dr Liprini (who might be argued to have been in a position analogous to the third parties in Mal Owen and Badenach) would have agreed to an order for FPA provision being made from that estate.

79. In considering causation, the primary judge stated that the appellant’s claim was based on the “unsustainable proposition that, but for the failure of RHS to commence proceedings in relation to Anne Liprini’s estate prior to the mediation, he would have recovered the whole of the agreed settlement sum” (Judgment [140]). The appellant’s claim being however one for loss of a chance it was enough for him to prove that he had a realistic chance of that occurring, with his damages to reflect the possibility or probability of that chance bearing fruit.

80. Her Honour also said that the proposition was unsustainable “because commencement of proceedings would not have prevented Dr Liprini from defaulting on his obligations” (ibid). The thrust of the appellant’s case, which I accept, is however that but for RHS’s breach of duty the appellant would have obtained a readily enforceable order against Dr Liprini as executor of the valuable estate of the mother and had a realistic prospect of being able to enforce that order promptly so as to recover the balance of the settlement sum.

81. Before leaving the issue of causation, it is necessary to refer again to the decision of Nicholas J of July 2009, referred to in [40]-[41] above.

82. His Honour did not find in that judgment that the mediation orders included an FPA provision order in favour of the appellant in relation to his mother’s estate. Rather, he found that the effect of those orders was “consistent with the effect of” an FPA order against the father’s estate (at [14]) and that by agreeing to the mediation orders, Dr Liprini “was effectively agreeing to arrange for the provision of the appropriate amounts” (at [28]). His Honour then made the orders sought, the first of which was an order that Dr Liprini pay the legacy of $770,000 agreed at the mediation to be payable in respect of the father’s estate and, secondly, a declaration that Dr Liprini was personally liable to his brother for the payment of that sum. The second order, being a declaration of Dr Liprini’s personal liability, is not easy to reconcile with the conclusion which Brereton J had reached in April 2008, which Nicholas J referred to (at [13]), that the mediation orders “do not require [Dr Liprini] to do anything”. Although Nicholas J described the language of the mediation orders as “plain and unambiguous” (at [20]) they were not that, as evidenced by the difference between his and Brereton J’s views.

83. In summary, I do not regard Nicholas J’s views, expressed over a year after the relevant time and apparently inconsistently with those of Brereton J, as contradicting my conclusion that a clear and readily enforceable FPA provision order in relation to the mother’s estate was not obtained at the mediation. Nicholas J’s judgment did not suggest that it was. His orders related, as to the first, to the father’s estate and, as to the second, to Dr Liprini’s personal liability to “effectively… arrange for the provision of the” $770,000 to be paid to the appellant. This was far from being a conventional FPA provision order.

Damages

92. As I have indicated, in a loss of commercial opportunity contract claim, damages are to “be ascertained by reference to the degree of probabilities, or possibilities, inherent in the plaintiff’s succeeding had the plaintiff been given the chance which the contract promised” (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 349).

93. The appellant’s primary claim was for the difference between the settlement sum of $770,000 and the amounts totalling $458,764 that he subsequently recovered (the difference being $311,236), plus interest. He did however accept that his claim should be reduced by 10% to allow for the possibility that he would have been unsuccessful in recovering the entire settlement sum even if RHS had not breached its contract with him. For reasons that the primary judge gave when addressing causation (see [50] above), her Honour concluded that there was “no chance” that the appellant would have recovered the entirety of the $770,000 (Judgment [195]).

94. As I have differed from her Honour on the issues of breach and causation, it remains for me to assess the percentage prospect of the appellant recovering the entirety of the settlement if there had been no breach. That is an intrinsically difficult and subjective exercise. With money and assets in the mother’s estate well in excess of the appellant’s claim and an immediately enforceable order against Dr Liprini as executor of that estate, the prospects of the appellant, aided by competent lawyers, in recovering his debt would in my view have been high.

95. As I have indicated, the appellant, and his lawyers on his behalf, were clearly in January 2008 and thereafter anxious to take prompt enforcement action. In the circumstances as they occurred, they were prevented from taking effective enforcement action only by the absence of the necessary foundation for that, being a clear FPA order against Dr Liprini as executor of the mother’s estate.

96. There is no doubt that at the time of the mediation the mother’s estate had assets far in excess of the settlement sum, and there is no reason to believe that those substantial assets were dissipated in the months following the mediation (see [84] above).

97. An allowance must however be made for contingencies such as the standard of the appellant’s legal advice being less than appropriate and, unlike what did occur, rapid action by Dr Liprini to put the relevant assets out of the appellant’s reach.

98. More generally, allowance must also be made for the possibility, albeit limited, that Dr Liprini might otherwise have been able to thwart prompt enforcement of a clear order made by consent for provision for the appellant out of their mother’s estate. As a bankruptcy judgment delivered in 2010 evidenced, Dr Liprini became deeply dissatisfied with the mediation settlement (Liprini v Liprini [2010] FMCA 687). Exactly when this occurred is not clear but it appears to have been very soon after the mediation. His conduct indicated that immediately, or almost immediately, he formed the intention not to pay the settlement sum. If the appellant had had a clear order for provision from his mother’s estate there is little, if anything, that Dr Liprini could have done to frustrate that provision being obtained.

99. Taking all of these considerations into account, I would deduct 20% from the appellant’s damages and therefore assess his prospects of recovering the settlement sum but for the breach at 80%. I would therefore assess the appellant’s damages at 80% of $770,000, minus what the appellant actually received from the bankrupt estate of Dr Liprini. As the appellant acknowledged, he needs also to give credit for the amount of $50,000 he received by way of settlement of a claim he made against Mr Lawson.

100. The same approach should be taken in respect of the appellant’s secondary claim for damages for loss of the opportunity to avoid much of the legal costs that he incurred in attempting to enforce the inadequate orders made at the mediation. He should be allowed 80% of these costs together with interest in respect of both aspects of his claims. As the primary judge did not make any detailed contingent findings concerning quantum it will be necessary to remit the quantification of the appellant’s loss to the Equity Division if the parties cannot reach agreement. This Court’s orders should afford the parties the opportunity to do that.

Proportionate liability

101. The primary judge found it unnecessary to deal with RHS’s defence of proportionate liability. As a result RHS raised it on appeal by Notice of Contention.

102. In support of this defence, RHS contended that Mr Lawson, the appellant’s barrister, and Dr Liprini were concurrent wrongdoers for the purposes of s 34(2) of the CLA. It argued that as it is implicitly accepted that the appellant’s claim is an “apportionable claim”, the appellant’s damages are to be reduced as specified in s 35(1) of that Act. Those two subsections are in the following terms:

34 Application of Part

(2)   In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

…

35 Proportionate liability for apportionable claims

(1)   In any proceedings involving an apportionable claim—

(a)   the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and

(b)   the court may give judgment against the defendant for not more than that amount.

103. I do not consider that RHS’s contention should be upheld insofar as it relates to Mr Lawson. On appeal RHS gave references to pleadings, the judgment below and its Notice of Contention but did not proffer any substantive argument in support of its contention that Mr Lawson was a “wrongdoer”. Although it is unnecessary for an alleged concurrent wrongdoer to be a party to the proceedings, where the person is (as here) not a party, and therefore has no opportunity to defend his or her reputation, the Court should be slow to make adverse findings in the absence of a carefully put argument to support them.

104. It is sufficient to say that I am not persuaded that Mr Lawson’s alleged “wrongdoing” has been established in relation to either of the bases of the appellant’s claims. So far as the appellant’s primary claim is concerned, Mr Lawson, quite properly, advised RHS on 8 May 2007 that it should commence FPA proceedings against the mother’s estate. On the evidence to which this Court was referred, it was not his fault that that did not occur.

105. So far as the appellant’s alternative claim is concerned, that there was allegedly negligence in drafting the orders made at the mediation, Mr Lawson is protected by advocate’s immunity even if there was some fault on his part. This is so for the same reasons I give below in relation to RHS’s immunity in respect of the appellant’s secondary claim. In the absence of the appellant having a cause of action against him, Mr Lawson cannot be characterised as a “concurrent wrongdoer” (Trajkovski v Simpson [2019] NSWCA 52 at [195]).

106. I have concluded that Dr Liprini also has not been shown to be a “concurrent wrongdoer”. Certainly that expression has a wide operation because its definition relevantly refers only to the person being someone who “caused” the plaintiff’s loss or damage. It is thus capable of applying to persons who are liable to the plaintiff on different causes of action to those upon which the defendant is liable to it – for example the fraudster in Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10.

107. The loss for which the appellant sued in the present proceedings is however in my view a different loss to that caused by Dr Liprini not paying the debt which Nicholas J held he assumed as a result of the mediation settlement. The former is the appellant’s loss of his valuable right to claim provision under the FPA from his mother’s estate. The latter is the appellant’s loss resulting from the non-payment of Dr Liprini’s debt that it is to be assumed arose out of the mediation orders. That debt was not an obligation of the estate to pay family provision, or to put it more precisely, to treat the appellant as a legatee of $770,000 under a codicil to the mother’s will. At best, it would, if paid, have had the effect of replacing that right but it was not the right itself. The connection in this respect was more tenuous than that which in Trajkovski at [193] was held to be insufficient to constitute the third party a concurrent wrongdoer.

108. For these reasons RHS’s proportionate liability defence should be rejected.

The alternative claim

109. As I have, like the primary judge, reached a firm conclusion that RHS is entitled to advocate’s immunity in respect of the appellant’s alternative claim and as the issues of breach in respect of that claim are of some complexity, I confine my consideration of the alternative claim to the issue of advocate’s immunity, which is sufficient to dispose of it.

110. By this claim, the appellant alleged that RHS had been negligent in drafting, and giving advice in relation to, the settlement terms agreed at the mediation on 6 December 2007. The primary judge, in my view correctly, found that the High Court decision in Attwells v Jackson and that of this Court in Bartlett v Coomber required RHS’s defence of advocate’s immunity to be upheld.

111. In Attwells v Jackson, the Court held that advocate’s immunity did not apply in relation to advice which led to the settlement of guarantee proceedings disadvantageously to the guarantors. The majority held that this was so notwithstanding that the settlement was embodied in consent orders of the Court. Their Honours distinguished cases in which the Court has no role to play in independently satisfying itself as to the appropriateness of the orders (as in Attwells v Jackson) from those in which it does have that function. The Court said in this respect:

“[61] It may be acknowledged that there are many cases where, although the parties have agreed upon the terms of the order which a court is asked to make, the making of the order itself requires the resolution of issues by the exercise of judicial power. Examples include where representative proceedings are settled, or where proceedings on behalf of a person under a legal incapacity are to be compromised, or where agreements are made in relation to proceedings under ss 86F, 87 and 87A of the Native Title Act 1993 (Cth). Other examples include the exercise of the judicial discretion to allow an agreement to amend a patent granted under the Patents Act 1900 (Cth), and the compromise of certain debts under ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth). It is not necessary to consider such cases here.

[62] In the present case, the consent order and associated notation by the Court reflected an agreement of the parties for the payment of money in circumstances where no exercise of judicial power determined the terms of the agreement or gave it effect as resolving the dispute. The consent order may have facilitated the enforcement of the compromise, but it was the agreement of the parties that settled its terms” (citations omitted).

112. In Bartlett v Coomber, this Court held that in proceedings under the FPA, the Court is required to satisfy itself of the requirements of ss 7 and 9 of that Act before making an order for provision, even if such an order is consented to by the parties. Of particular significance is s 9(2) which provides that the Court is not to make an order for provision under s 7 or 8 unless it is satisfied of certain specified matters.

113. The mediation in the present case was thus not one which gave rise to an agreement which the Court, through the Registrar who conducted the mediation, was entitled to embody in court orders without the exercise of an independent discretion. RHS’s alleged breaches of duty were therefore covered by advocate’s immunity because they were intimately connected with the resolution of the proceedings by court decision. As Nicholas J held in his judgment of 10 July 2009, the mediation agreement resolved both the existing proceedings against the father’s estate and the contemplated proceedings against the mother’s estate. Through the Registrar, the Court gave its imprimatur to this agreement.

114. What occurred at the mediation on 6 December 2007 conformed with this conception of the Court’s role. It is apparent from Mr Sommerville’s evidence before the primary judge that the Registrar who conducted the mediation actively participated in it, acquiring a detailed knowledge of the circumstances of the estate and the participants’ arguments. This put him in a position to be able to say when presented by the parties with the draft short minutes of order that he was “prepared to make those orders”. He did this by placing the court seal on the document.

Orders

115. For the reasons given above, I propose the following orders:

1. Appeal allowed.

2. Orders made at first instance on 4 April 2019 set aside.

3. Direct the parties in accordance with the following timetable to lodge with the Court and serve on each other, short minutes of order and if necessary brief supporting submissions, to give effect to the conclusions in these reasons for judgment.

1. The appellant within 14 days of today’s date.

2. The respondent within a further 14 days.

3. Any reply within a further seven days.

116. McCALLUM JA: I agree with Macfarlan JA that RHS enjoyed advocate’s immunity in respect of the conduct complained of in Mr Liprini’s alternative claim. However, as to the primary claim, I respectfully disagree with his Honour. I would dismiss the appeal, essentially for the reasons given by the primary judge.

The primary case

117. The primary case as formulated in Mr Liprini’s final written submissions in the Court below was that RHS failed to discharge their duty of care by failing to commence proceedings in respect of Anne Liprini’s estate prior to the mediation of 6 December 2007.

Risk of harm

118. The central issue is the vexed question of risk of harm. In my opinion, Mr Liprini failed to establish that element at first instance. Mr Liprini had to establish the existence of a risk that was foreseeable, not insignificant, and such that a reasonable person in the position of the defendant would have taken precautions against it. The primary judge noted that “risk” and “harm” are different things. Her Honour had difficulty discerning how either was identified according to Mr Liprini’s case.

118. The primary judge noted that it is risk that is the focus of the inquiry under s 5B of the Civil Liability Act 2002 (NSW). To explain her approach to that inquiry, her Honour referred to the judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60] and concluded that risk is to be found by identifying the “true source of potential injury”. She also referred to the judgment of Garling J (albeit in dissent) in McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476 (adopted by the Court of Appeal in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]) where, in reference to the same passage in Dederer, his Honour observed at [266] that “Gummow J was careful to include the general causal mechanism of the injury [or harm] sustained by the plaintiff”.

119. As to harm, her Honour noted that the relevant harm could be identified in a number of ways in the present case, in general terms as economic loss or more specifically as the inability to recover the whole of the sum Dr Liprini agreed to pay at the mediation.

120. The primary judge concluded at [116]:

“However the ‘harm’ is formulated, the primary claim fails. No ‘true source of [that] potential injury [or harm]’ or ‘general causal mechanism’ can be associated with the failure of RHS to commence proceedings in respect of Anne Liprini’s estate; there is no “person, thing or set of circumstances” in that failure that gave rise to the harm on which the plaintiff sues – whether that harm be defined in general terms as economic loss, or more specifically as the inability to recover the whole of the agreed sum.”

122. Central to that conclusion was a consideration of the nature of a mediation, as to which her Honour said (still at [116]):

“It is a process in which parties to litigation are encouraged to resolve their differences, with the assistance of a trained mediator, and with the advice of independent lawyers. There is no compulsion on any party to agree to any proposed settlement. Even in a court-ordered mediation a party may decline even to negotiate. A mediation can have no binding effect other than by the agreement of the parties.”

123. On the strength of that analysis, her Honour concluded at [125] “the plaintiff’s primary case fails at the first barrier, the identification of the risk of harm.” I agree with that conclusion, for the reasons her Honour gave and for the following additional reasons.

124. As explained by the primary judge at [109], granted that some retrospectivity is permitted, the relevant risk must be shown to have existed at the time it is said the precaution should have been taken. The appellant had until 26 May 2008 to commence proceedings in relation to the estate of Anne Liprini. The only basis on which it was alleged that RHS could have been in breach of its duty of care in failing to commence those proceedings at any earlier point was their connection with the mediation.

125. Another way of describing the primary case is that RHS failed to discharge the duty of care by proceeding to mediation without first having taken the step of commencing the contemplated proceedings. But, as explained by the primary judge, it was common ground going into the mediation that both estates were in play. Unless the commencement of proceedings beforehand would secure some stronger position than Dr Liprini’s apparent agreement, proceeding on the strength of such agreement would not have appeared to entail a risk.

126. It is not clear at what point it is said that a risk of harm arose against which the precaution of commencing those proceedings should have been taken, other than that it was “before the mediation”. As early as June 2007, the appellant’s counsel, Mr Lawson, had expressed concern as to the appellant’s prospects of success based on scepticism as to the financial information they had received from him. He suggested mediation with a view to settling the matter for “a reasonably modest sum”. Owen Hodge Solicitors were still on the record for Dr Liprini at that stage. They were still in the process of obtaining probate of Anne Liprini’s will and had told Mr Sommerville they would advise him when probate had been granted. However, they subsequently ceased to act for Dr Liprini without providing that information.

127. The landscape of risk was constantly changing from that time. The prospect of mediation was raised again, this time by Dr Liprini’s new lawyers at their first appearance in the proceedings concerning James Liprini’s estate on 3 September 2007. By then, Dr Liprini had been told (during the period when he was unrepresented) that the appellant proposed also to bring proceedings in relation to Anne Liprini’s estate. In his reporting letter concerning the appearance on 3 September 2007, Mr Lawson reiterated the need to obtain an affidavit from the appellant “as to his financial needs” so that a date for mediation could be obtained on the next court date, 25 September 2007.

128. On 25 September 2007, the order for a court-annexed mediation on 6 December 2007 was made by consent. In the meantime, negotiations had been opened by both brothers to receive interim distributions the quantum of which assumed access to the combined value of the two estates.

129. After 25 September 2007, Mr Lawson continued to press for an affidavit or conference with the appellant to obtain updated instructions as to his financial position. The appellant declined to travel to Sydney for that purpose but participated in part of a conference by telephone. According to Mr Sommerville’s affidavit, the appellant was advised by Mr Lawson during that conference that the Court would not split the estate 50/50 (“it’s needs based”) and that he should settle for $100,000 to $150,000 at the mediation. Mr Lawson said that, if the appellants’ claims went to hearing, he may “get nothing”.

130. Mr Sommerville gave evidence that he preferred not to commence proceedings in relation to the estate of Anne Liprini until after a grant of probate. Despite asking, he was not told by Dr Liprini’s new solicitors until the day before the date fixed for the mediation that probate had in fact been granted months earlier. He could have learned that fact from the Registry but he did not make that inquiry.

131. In those circumstances, it is not clear what risk is said to have existed (or when it is said to have arisen within that timeline) which could be addressed by the precaution of commencing a second set of proceedings before the mediation or, to put the matter another way, by not proceeding with the mediation until the step of commencing proceedings had been taken. In my view, the appellant’s case on that issue was overly informed by hindsight.

132. It does not appear to have been the case at trial that there was a risk of harm in consenting to an order for mediation on 25 September 2007. Compared with the position when Dr Liprini was unrepresented, mediation with the involvement of the new lawyers may well have seemed an attractive option at that point. Nor does it appear to have been the appellant’s case that there was a risk in not refusing, after learning on 5 December 2007 that probate had been granted months earlier, to participate in the court-ordered mediation the following day. To have done so would have carried different risks including exposing the appellant to an order for costs.

133. The risk of harm identified by Macfarlan JA in respect of the primary case at [64] is “that if clear and readily enforceable orders against the mother’s estate were not obtained as a result of any settlement achieved at the mediation, any FPA provision that Dr Liprini agreed should be made in favour of the appellant might be difficult to recover”. In my respectful opinion, that reflects the risk identified on the appellant’s alternative case rather than the primary case. Going into the mediation, the risk of failing to obtain clear and readily enforceable orders against the mother’s estate reflecting any settlement achieved was one of any number of risks that might have resulted in the plaintiff obtaining less than Dr Liprini’s agreement to pay $770,000.

134. In my respectful opinion, the risk of harm on the primary case cannot be analysed taking the settlement agreed to by Dr Liprini (that the appellant would receive $770,000 inclusive of costs) as a fixed premise and confining the prospective analysis to the risk that, absent proceedings against the mother’s estate having already been commenced, that agreement would not be readily enforceable. Going into the mediation, the position was more fluid. In my view, the primary judge’s conclusion that Mr Liprini’s case failed at the first barrier (the identification of the risk of harm) was correct.

Breach of duty

135. Although that conclusion was determinative, the primary judge proceeded to consider the question of breach of duty, concluding at [136] that Mr Liprini had failed to establish any breach of duty by the failure to take the precaution of commencing proceedings in relation to Anne Liprini’s estate. I agree, for the reasons given by the primary judge at [127]-[138]. I am not persuaded that the evidence of the experts, Mr Neal and Ms Suttor, compels a different conclusion. The primary judge considered their evidence in detail. Her Honour set out at [134] an extract from the joint evidence relied upon by Dr Liprini, as follows:

“[COUNSEL FOR THE PLAINTIFF]: And would – having regard to what you’ve just said – would that mean that the fact of the assets being basically all in the mother’s estate – and on the evidence – almost all assets in the father’s estate; would that be a particular factor in this case which bears on whether proceedings should have been commenced?

WITNESS NEAL: Yes, and by the time the evidence was served, which showed the undistributed assets in the father’s estate were about $30,000 – if you’ll pardon me being colloquially [sic] – issuing proceedings against the mother’s estate was a no brainer.

[COUNSEL FOR THE PLAINTIFF]: And I think in your opinion, should have been done in response to the instructions in April?

WITNESS NEAL: It should have been done earlier and certainly should have been done before the mediation.

[COUNSEL FOR THE PLAINTIFF]: Ms Suttor do you agree with what Mr Neal’s just said?

WITNESS SUTTOR: Yes. Yes, I – I – I – I – would have issued those proceedings much earlier.

[COUNSEL FOR THE PLAINTIFF]: And there’s no need to be modest, when you say you would’ve done that, you are extremely experienced in this area, correct?

WITNESS SUTTOR: Yes.

[COUNSEL FOR THE PLAINTIFF]: And when you say you would’ve done it –

WITNESS SUTTOR: As a competent practitioner.

[COUNSEL FOR THE PLAINTIFF]: Precisely. That would’ve meant what you are really saying to her Honour is that you would have expected any competent practitioner in this area to have done, true?

WITNESS SUTTOR: Yes.

[COUNSEL FOR THE PLAINTIFF]: And then just going on with the assumption – and I should pause – and not doing so in April 2007 was a departure from the standard of proper professional practice accepting by the peers of the defendant’s [sic – defendant] solicitors in the case? That’s right, isn’t it?

WITNESS SUTTOR: I wouldn’t have put it that it should have been done in April. I – I –

[COUNSEL FOR THE PLAINTIFF]: Put it a little later?

WITNESS SUTTOR: I – I – would have put it much later.”

136. The primary judge was not persuaded that this evidence established breach of duty and nor am I. Cross-examination of an expert professional witness as to what a defendant “should have done” on a particular premise invites the subtle influence of telescopic hindsight. The questions posited a limited factual matrix. The particular factor addressed (“the fact of the assets being basically all in the mother’s estate”) was but one of many factors that informed the conduct of the litigation over many months. Concessions extracted from an expert by a skilful cross-examiner as to what should have been done differently must always be analysed with those limitations in mind. As with the analysis of risk of harm, the task is to consider the issue of breach of duty in the context of the complete landscape as it would have appeared to the litigators at the time.

Causation

137. The primary judge noted the requirement under s 5D(1)(a) of the Civil Liability Act to establish that the negligence asserted be a necessary condition of the occurrence of the harm the plaintiff alleges to have suffered. Her Honour held at [140] that that element was not established. I agree, for the reasons given in that paragraph of the primary judgment.

138. Justice Macfarlan holds at [82] that, “if the appellant had at the mediation obtained an order for provision from his mother’s estate, he would have had the opportunity in January 2008, and beyond, to seek relief, both urgent and final, under r 54.3 of the UCPR to enforce his order for provision” (his Honour also refers to s 84 of the Probate and Administration Act 1898 (NSW) but for present purposes that can be put to one side).

139. However, as explained by the primary judge, Mr Liprini did have that opportunity and he exercised it. He ultimately enforced the settlement by obtaining an order under rule 54.3. The orders of Nicholas J included a declaration the effect of which was that the 6 December 2007 orders bound both estates and also bound Dr Liprini personally. The primary judge said at [101] that those orders demonstrate that “there was a family provision order made in respect of Anne Liprini’s estate”. At [118] her Honour held that, notwithstanding that no proceedings had been commenced with respect to Anne Liprini’s estate, a binding settlement was reached, saying “that it was binding was confirmed by the judgment of Nicholas J”; see also [120] of the judgment. As noted by the primary judge at [138], it may be the case that different steps could have been taken but the manner of enforcement of the mediation orders formed no part of the case in negligence.

The alternative case

140. As already indicated, as to Mr Liprini’s alternative claim, I agree with Macfarlan JA that RHS enjoyed advocate’s immunity in respect of the conduct complained of in Mr Liprini’s alternative claim. As his Honour has noted at [106], that is sufficient to dispose of that claim. However, I should also indicate that I agree with the primary judge’s conclusions as to breach of duty and causation in respect of the alternative claim (primary judgment at [167] and [172]).

Damages

141. I also agree with the primary judge’s conclusion at [195] that, “no matter what proceedings had been commenced and no matter what orders had been formulated, Dr Liprini would have acted precisely as he did” and that it follows that “there was no chance that the plaintiff would have recovered the entirety of the $770,000”. In the circumstance, there is no point in my addressing proportionate liability.

Orders

142. For those reasons I propose the following orders:

1. that the appeal be dismissed;

2. that the appellant pay the respondents’ costs.

143. EMMETT AJA:

Introduction

144. This appeal arises out of the failure on the part of Dr Allan Liprini (Allan), the brother of the appellant, Mr Kevin Liprini (Kevin), to pay to the appellant sums totalling $770,000, being the sum of $750,000, which Allan agreed to pay to Kevin by way of compromise of claims made or to be made by Kevin under the Family Provision Act 1982 (NSW) (the Act) in respect of the estates of their deceased parents, together with the sum of $20,000 for costs. Kevin claims that, but for negligence or breach of contract on the part of the respondents, a firm of solicitors (the Solicitors), he would have recovered the full amount of $770,000 but that, as a result of their alleged negligence or breach of contract, he only recovered a part of that sum.

The Dispute

145. Kevin and Allan are the sons of the late James Liprini (James) and the late Anne Liprini (Anne). Kevin was born in 1947 and Allan was born in 1948. James died in January 2005 and Anne died in November 2006. By his last will, James appointed Allan as his executor, devised to Allan a property in Helensburgh and gave the residual of his estate to Anne. By her last will, Anne appointed Allan as her executor and left the whole of her estate to Allan. Probate of the will of James was granted to Allan on 2 August 2005 and probate of Anne’s will was granted to Allan on 9 July 2007.

146. In June 2005, Kevin consulted the Solicitors with respect to the absence of any provision for him in James’ will. After consulting with counsel (Kevin’s Counsel), Kevin was advised that, since he had received a gift of $1 million from his parents while they were alive, his case for provision under the Act was very weak, although he had some prospects of success. On 18 July 2006, proceedings under the Act were commenced on behalf of Kevin seeking provision out of the estate of James.

147. In January 2007, the Solicitors wrote to Allan’s solicitors inquiring whether an application for probate had been made in respect of Anne’s estate. In March 2007, the Solicitors were notified that Allan had lodged an application for probate of Anne’s will. In April 2007, Kevin instructed the Solicitors to commence proceedings under the Act making a claim for provision for him in respect of Anne’s estate. In May 2007, Kevin’s Counsel advised the Solicitors that proceedings should be commenced seeking provision under the Act in respect of Anne’s estate.

148. On 27 July 2007, Allan’s solicitors told the Solicitors that they were no longer instructed to act on his behalf. On 31 July 2007, the Solicitors wrote to Allan requesting a copy of the grant of probate in respect of Anne’s estate and informing Allan that Kevin intended to commence proceedings under the Act seeking provision from Anne’s estate once probate was granted. By that time, the estate of James has been fully administered.

149. On 3 September 2007, the Solicitors received a letter from Kevin’s Counsel concerning a directions hearing on that day in relation to the claim in respect of the estate of James. The letter indicated that Allan was in financial difficulty and wished to make an interim distribution of $20,000 from the estate of James and that it had been suggested on behalf of Allan that a mediation take place. On 4 September 2007, the Solicitors wrote to Kevin advising him to consent to the proposed distribution of $20,000 to Allan and raising the possibility of mediation. Kevin responded by saying that he wanted a split of 50/50 on all properties and cash and that, if Allan was to receive an interim distribution, he wanted the same amount.

150. It appears that the Solicitors were unaware that probate of Anne’s will had been granted to Allan since, on 24 September 2007, the Solicitors told Kevin’s Counsel that Kevin was still waiting for Allan to obtain probate of Anne’s will. On the following day, a consent order was made for the proceedings in respect of the estate of James to be fixed for mediation on 6 December 2007.

151. On 23 November 2007, a telephone conference took place during which Kevin’s Counsel and the Solicitors advised Kevin that it was unlikely that he would achieve a 50 per cent share of the combined estates and that he should settle for between $100,000 and $150,000. On 26 November 2007, Kevin told the Solicitors that he would not accept $150,000 and would prefer to mediate. On 27 November 2007, the Solicitors wrote to Kevin confirming the advice given on 23 November 2007.

152. On 5 December 2007, Allan’s solicitors wrote to the Solicitors informing them, for the first time, that probate had been granted in respect of Anne’s will. At that stage, no proceedings had been commenced under the Act on behalf of Kevin in respect of Anne’s estate.

153. A Court ordered mediation took place on 6 December 2007. Kevin was represented by the Solicitors and by Kevin’s Counsel. During the course of the mediation, Allan’s legal representatives told the Solicitors that Allan was having a nervous breakdown. In the event, all parties to the mediation signed short minutes of proposed orders that were drafted by Kevin’s Counsel. Order 1 was that provision be made in favour of Kevin out of the estate of James in the sum of $750,000 and that his costs as agreed in the sum of $20,000 be paid out of the estate of James, making a total of $770,000 (the Settlement Sum). It was also proposed that an order be made that Allan’s costs be paid out of the estate of James on an indemnity basis. The short minutes contained a note that those orders were agreed by the parties in contemplation of a claim under the Act by Kevin against Anne’s estate and Kevin agreed, if called upon to do so, to execute a deed releasing Allan as executor of Anne’s estate from any claim under s 7 of the Act. Immediately following the mediation, orders were made in accordance with the short minutes of order.

145. The period of 28 days referred to in the orders expired on 3 January 2008. Kevin did not receive the Settlement Sum from Allan by that time. On 11 January 2008, Allan’s solicitors wrote to the Solicitors acknowledging that the Settlement Sum was due to be paid 28 days after the orders were made at the mediation and that they had instructed Allan to organise payment. On 17 January 2008, the Solicitors wrote to Allan’s solicitors saying that judgment would be enforced by execution unless payment of the Settlement Sum was made.

146. On 10 July 2009, Nicholas J declared that, on their true construction, the effect of the orders made on 6 December 2006 was that Allan would be personally liable for the payment to Kevin of the two sums of $750,000 and $20,000. His Honour also ordered that Allan was personally liable to pay to Kevin the Settlement Sum together with interest from the estates of James and Anne.

147. Thereafter, various steps were taken by or on behalf of Kevin to enforce payment of the Settlement Sum. Bankruptcy notices were served, appeals were filed and a sequestration order was made in respect of Allan’s estate. Ultimately, Kevin recovered no more than $458,764 from the estate of the bankrupt Allan.

The Claim Against the Solicitors

157. Kevin then commenced proceedings in the Common Law Division against the Solicitors. On 4 April 2019, for reasons published on that day, a judge sitting in the Common Law Division (the primary judge) ordered that the proceedings be dismissed and directed the entry of judgment for the Solicitors. Her Honour ordered Kevin to pay the Solicitors’ costs of proceedings. Kevin now appeals to this Court from the orders made by the primary judge.

The Appeal

158. The issues raised in the appeal may be summarised as follows:

• whether there was a breach of contract or breach of duty on the part of the Solicitors in not commencing, prior to the mediation on 6 December 2007, proceedings seeking provision from Anne’s estate, and whether there was any risk of harm by reason of the Solicitors not commencing such proceedings;

• whether any breach of contract or duty in failing to commence proceedings prior to the mediation caused any loss to Kevin;

• whether there was any breach of contract or breach of duty in the drafting of the orders agreed upon at the mediation;

• whether any such breach of contract or duty in the drafting of the orders caused any loss to Kevin;

• whether the conduct in drafting the consent orders had a functional connection with the judicial determination of the registrar who conducted the mediation and made the orders, such that advocates’ immunity applied to the conduct of the Solicitors at the mediation; and

• whether the value of the chance lost by Kevin is nil and whether damages relating to the enforcement of his rights are recoverable.

159. The Solicitors also relied on a notice of contention filed on 27 August 2019. They assert that Kevin’s claim is an apportionable claim for the purposes of Pt 4 of Div 6 of the Civil Liability Act 2002 (NSW) (the Liability Act). Accordingly, they say, if they are held liable to Kevin, Kevin’s Counsel and Allan are concurrent wrongdoers within the meaning of s 34 of the Liability Act. Therefore, they say, any liability on their part should be reduced, pursuant to s 35 of the Liability Act, to nil or to an amount reflecting the proportion of the damage or loss that the Court considers just having regard to the extent of their responsibility for the alleged damage or loss.

160. I have had the opportunity of reading in draft form the proposed reasons of Macfarlan JA and McCallum JA. I have formed a view as to the outcome of the appeal similar to that of McCallum JA and different from that reached by Macfarlan JA.

Failure to Commence Proceedings

161. I would be disposed to conclude that the failure of the Solicitors to commence proceedings under the Act in relation to Anne’s estate constituted a breach of contract or breach of duty on the part of the Solicitors. However, even if there were such a breach, I do not consider that there was a relevant causal connection between the loss claimed by Kevin and the failure to commence proceedings in respect of Anne’s estate prior to the mediation. The mediation resulted in a binding agreement with Allan. Allan failed to perform his obligations. There is no reason to conclude that, had proceedings been commenced in respect of Anne’s estate prior to the mediation, the position would have been any different.

162. That is to say, the mere fact of prior commencement of proceedings under the Act in respect of Anne’s estate of itself would have made no difference to Kevin’s capacity and ability to enforce the promise made by Allan. Even if such proceedings had been commenced, further orders would have been necessary in order to afford Kevin the ability to enforce payment of the Settlement Sum by Allan. For example, it would have been possible, since all necessary parties were present at the mediation, to have included orders that would have given Kevin an immediate claim against the assets of Anne’s estate. Kevin’s loss was not caused by the failure to commence proceedings under the Act in respect of Anne’s estate but the failure to include in the proposed short minutes of order, orders that would have given Kevin an entitlement to enforce Allan’s promise against the assets of Anne’s estate and subsequent steps to enforce the settlement against the assets of Anne’s estate.

163. Kevin had the opportunity in January 2008, and beyond, to seek relief, both urgent and final, under UCPR r 54.3, to enforce his order for provision. He ultimately obtained an order under UCPR r 54.3. The orders of Nicholas J included a declaration to the effect of that the orders bound both estates and also bound Allan personally, indicating that there was a family provision order made in respect of Anne’s estate. Notwithstanding that no proceedings had been commenced with respect to Anne’s estate before the mediation, a binding settlement was reached. While different steps could have been taken after the consent orders were made, the manner of enforcement of the mediation was not a complaint made by Kevin.

Drafting of the Orders

164. Whether or not there is any substance in Kevin’s complaint that the orders agreed at the mediation did not include provision for enforcement against the assets of Anne’s estate, and that constituted a breach of duty or breach of contract on the part of the Solicitors, advocates’ immunity applied in the circumstances of a mediation before a registrar of the Court and the formulation of orders to be made by the registrar in consequence of the compromise reached at the mediation. Clearly enough, for the reasons proposed by Macfarlan JA, the Solicitors are entitled to advocates’ immunity in relation to any deficiency in the drafting of the orders to give effect to the compromise.

Apportionable Claim

165. In relation to the notice of contention, it is relevant that Kevin’s Counsel was originally joined as a defendant in the proceedings. However, a compromise was reached between Kevin and his counsel involving a payment of $50,000, credit for which is given by Kevin to the Solicitors.

166. Under s 35 of the Liability Act, in any proceedings involving an apportionable claim, the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the Court considers just, having regard to the extent of the defendant’s responsibility for the damage and loss. The Court may not give judgment against the defendant for more than that amount. Under s 34, an apportionable claim includes a claim for economic loss in an action for damages, whether in contract, tort or otherwise, arising from a failure to take reasonable care. A concurrent wrongdoer in relation to such a claim is a person who is one of two or more persons whose acts or omissions, or act or omission, caused, independently of each other or jointly, the damage or loss that is the subject of a claim.

167. I do not consider that ss 34 and 35 have application in the way contended for by the Solicitors in relation to the claim against Allan. The loss or damage claimed by Kevin is the loss of an opportunity to enforce the contractual obligation undertaken by Allan by reason of the settlement reached at the mediation. No act or omission on the part of Allan caused the loss of the opportunity of including, in the settlement agreement, terms that would have given Kevin a remedy in rem against the assets of Anne’s estate.

Conclusion

168. I would order that the appeal be dismissed and that Kevin pay the Solicitors’ costs of the appeal.

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Amendments

24 March 2021 - Amendment of typographical error: removal of "not" after "had" in [34] second sentence.

Decision last updated: 24 March 2021