Luadaka v Dooley - [2002] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:

Luadaka v Dooley & Anor [2002] QDC 224

PARTIES:

DIANE BERYL LUADAKA

Plaintiff

v
MICHELLE DOOLEY

First Defendant

and
PATRICK DOOLEY

Second Defendant

FILE NO/S:

Plaint 215 of 1997

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

17 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17-20 September 2001

JUDGE:

McGILL DCJ

ORDER:

Judgment for the defendants with costs

CATCHWORDS:

LEGAL PRACTITIONERS – Solicitor and Client – Negligence – whether inappropriate advice about settlement offer – whether case properly conducted in Family Court – whether financial loss proved – whether psychiatric injury proved.

Algar v Gall Standfield & Tiley [2000] QSC 85 – followed
Baltic Shipping Co v Dillon (1993) 176 CLR 344 – distinguished
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 – cited

Dew v Richardson (Writ 4159/97, Chesterman J, 18 August 1999, unreported) – followed

Hall v Foong (1995) 65 SASR 281 – followed
Hancock v Nominal Defendant [2002] 1 QdR 578 – followed
Hanflex Pty Ltd v N S Hope & Associates [1990] 2 QdR 218 – followed
Heywood v Wellers [1976] QB 446 – distinguished
Jaensch v Coffey (1984) 155 CLR 549 – followed
Kennon v Kennon (1997) FLC 92-757 – considered
Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384 – applied
Tame v New South Wales [2002] HCA 35 – followed
Wodrow v Commonwealth of Australia (1993) 45 FCR 52 – followed

COUNSEL:

P E Gorman for the plaintiff

I R Perkins for the defendants

SOLICITORS:

Gormans for the plaintiff

McLaughlins for the defendants

By this action the plaintiff claims damages for professional negligence from the defendants, a solicitor who is in sole practice and her husband, who is also a solicitor and was at the relevant time employed by her in the practice. The employed solicitor, the second defendant, had the carriage of the plaintiff’s action, which was an application to the Family Court for distribution of assets, consequent upon the breakdown of the marriage between the plaintiff and her former husband. The plaintiff claimed that as a result of the negligence of the second defendant, for which the first defendant was vicariously liable, she had suffered financial loss in that the outcome of the Family Court proceeding was less favourable to her than it ought to have been, and also that she had suffered psychiatric injury. That claim is also pleaded as a cause of action for damages for breach of the contract of retainer, and there is also a claim for damages under the Fair Trading Act 1989 for misleading and deceptive conduct

History of the action

This matter was commenced by plaint filed in the Southport District Court on 11 April 1997, by which the plaintiff claimed from the first and second defendants $200,000 damages for professional negligence. The original plaint did not clearly plead any particular cause of action against either defendant, and on 23 January 1998 another judge struck it out, but with liberty to replead; costs of the application were reserved. A new version of the plaint was filed on 22 April 1998, which alleged that the defendants had been negligent, and had engaged in false or misleading and deceptive misrepresentation, in relation to the conduct of property settlement proceedings in the Family Court commenced by them on behalf of the plaintiff in May 1993, which proceedings were heard and determined on 12 April 1994. That plaint claimed $250,000 and alleged that as a result the plaintiff suffered loss of matrimonial property, and psychiatric injury which led to loss of earnings, and incurred legal expenses, and suffered other loss and damage.

The first and second defendants filed an Entry of Appearance and Defence on 3 June 1998 which, broadly speaking, denied everything. They subsequently applied for an order that this plaint also be struck out, or in the alternative an order for particulars. That application came on before me on 23 October 1998, and I ordered that the plaintiff provide certain further particulars, but otherwise the application was unsuccessful and I made no order as to costs of the application. Further and better particulars were filed by the plaintiff on 16 December 1998. However, on 16 November 1998 the plaintiff had filed an amended plaint by which she sought to add claims under the Fair Trading Act 1989, and for damages for breach of contract of retainer, and raised some additional issues.

It does not appear that the leave then required by District Court rule 104(3) to add a new cause of action by amendment had been obtained by the plaintiff. The plaintiff filed an application on 26 February 1999 for leave to amend the plaint in terms of the amended plaint filed on 16 November 1998, and leave to make the amendments was given by Judge Brabazon on 8 April 1999. On that occasion, His Honour also ordered that by 8 June 1999 the plaintiff give further and better particulars of certain paragraphs of the existing particulars filed on 16 December 1998, and by that time complete discovery. Costs were made costs in the cause.

Amended further and better particulars were filed by the plaintiff on 7 June 1999, together with a list of documents. The defendants’ affidavit of documents was filed on 24 June 1999. An amended Entry of Appearance and Defence was filed on 28 June 1999, which contained admissions that the plaintiff engaged the first defendant in March 1993 to act in relation to domestic violence and family law matters, and that the second defendant informed the plaintiff that he would represent the plaintiff in the Family Court to avoid the necessity to engage counsel, and the second defendant appeared for the plaintiff in the Family Court on 11 and 12 April 1994. There was also an admission that there was a contract of retainer for the first defendant’s services. The defendants admitted that they did not cause a Mr Twohill to be removed as the solicitor for the plaintiff’s former husband in the family law proceedings, and that they did not deliver to the plaintiff a client care letter or a recognised cost agreement as required under the rules of the Queensland Law Society, but otherwise everything alleged by the plaintiff was put in issue. It was also alleged that if the Fair Trading Act applied to the dealings between the parties, the claim under that Act was statute barred.

On 9 November 2000 another application came before His Honour Judge Brabazon, when orders were made requiring a non–party to produce certain documents, and both parties were given liberty to apply for further directions, including directions about an ADR process and the trial of the action. An application for enforcement of this order was filed by the plaintiff on 19 February 2001, and this application came before His Honour Judge Brabazon on 18 April 2001, when His Honour ordered a firm of solicitors to produce certain documents at the registry at 10.00am on 20 April 2001, and adjourned the application until then. On that day His Honour adjourned the enforcement application to the trial of the action, directed that the action be set down for trial for four days from Monday, 17 September at Southport, and directed that the plaintiff supply particulars as previously ordered, and provide a statement of loss and damage, by 22 June 2001.

An application on behalf of the defendants seeking relief arising out of what was alleged to have been a failure to provide proper particulars of the plaintiff’s pleading as ordered came before me on 30 July 2001. On 22 June 2001, the plaintiff had filed a statement of loss and damage which however did not contain all the matters required to be provided by the rules, and did not provide details of how the various amounts claimed by way of special damages were made up. Copies of all of the relevant documents were not attached to the Statement of Loss and Damage, because it had been filed and the plaintiff had assumed (correctly) that the court would not want on the court file copies of all of the receipts which she said she had.

Under the current rules, such statements are served but not filed, but it was appropriate for her to provide the defendants’ solicitors with copies of all the documents on which she relies in establishing the amount of her loss, and indeed any other documents on which she relies which she had not already disclosed, and I ordered her to do so within 14 days.

It became apparent, however, in the course of that hearing that the prospects of the plaintiff being able to provide proper particulars of the various allegations in the amended plaint were slim, because of her lack of understanding of ordinary legal procedure. It would be unsatisfactory to keep putting off the trial and keep making orders for the supply of particulars with which the plaintiff would clearly have difficulty complying, and I was not persuaded that it was appropriate to dismiss the plaintiff’s claim because of the failure to comply with the earlier orders. The only practical solution seemed to me to start the trial and put the plaintiff in the position where she had to call what evidence she wanted to call, but on the basis that if necessary time would be given during the trial to the defendants in order to ensure that they had a proper opportunity to respond to such evidence as the plaintiff led, and to such case as the plaintiff thereby made.

Shortly before the commencement of the trial, however, the plaintiff appointed solicitors, and appeared at the trial by counsel. With their assistance a document entitled “Clarification of the Particulars of Professional Negligence of the First and Second Defendants” was prepared, and I gave leave to file that document on 18 September 2001, the second day of the trial. That document set out the allegations of negligence on the basis of which the trial was conducted and the plaintiff’s case was ultimately argued. Some reference to the earlier pleadings and particulars is appropriate however, because some point was made on behalf of the defendants that the final document contained particulars of negligence which were different from those allegations which had been advanced earlier. In addition, in earlier pleadings of the plaintiff it was alleged that the plaintiff had lost substantial matrimonial property as a result of the defendants’ negligence, in effect an allegation that but for that negligence the plaintiff would have obtained a much more favourable order from the Family Court. I will return to the significance of this change in direction of the plaintiff’s case later.[1]
[1]See below [101] – [103]

Background: plaintiff’s matrimonial dispute

The plaintiff met Garry John Luadaka (the husband) in September 1981 and married him on 5 March 1982; they then each had one child, and there was another child born to them during the marriage: Exhibit 42. They began to live together in a property at Short Street, Nerang (“the property”) which had been purchased in December 1981 by the husband and his parents. His parents had come from the United Kingdom in November 1981 and the property had a flat downstairs where they were to live, with him (and later the plaintiff) living upstairs. The parents contributed $40,000 to the purchase price of $108,000 and also paid $5,000 for legal fees and other cost of purchase: Exhibit 7; p 186. The rest of the price was borrowed, by the husband and his parents, although part ($35,000) was paid off by the husband from the sale of two other properties he had owned earlier: Exhibit 7; Exhibit 37; p 186. The plaintiff accepts that she did not make any contribution to the acquisition (p.88), although she later spent money on improvements, and her earnings by helping support the family were assisting the husband to repay the mortgage. She says she understood, apparently at the time of the marriage, that the parents’ interest in the home would be left to her and her husband: p.112.

At the time of the marriage the plaintiff was working at the Gold Coast Hospital as a theatre nurse,[2] having advanced to a position where she was second in charge of the theatre: p 5. In July 1982 she left that employment as a result of the pregnancy[3] which resulted in the birth of a daughter, Peta, in March 1983. She then obtained alternative employment until two weeks before the birth, and three weeks after the birth obtained a further position, operating an allergy clinic for a practice of ear, nose and throat specialists: p 5. She remained in that employment until late 1994:[4] p 43. In August 1991 she also took on casual work at the Highland Medical Centre[5], which work also came to an end in September 1994: Exhibit 13.
[2]She started as a trainee in 1969 and worked full time to July 1975, casual to January 1977, and full time again from May 1979; Exhibit 13.
[3]Being concerned about the possible effects of x-rays: Exhibit 42
[4]Her affidavit Exhibit 41 referred to her ceasing work as an anaesthetist’s nurse in 1988 because of her thyroid problem. In Exhibit 42 she said this occurred in March 1989.
[5]Exhibit 34 says that in April 1992 she was working 32 hours a week over three jobs, but does not identify them.

At the time of the marriage, the husband was working as a commission agent for insurance brokers. In November 1982 he left that employment and went to work for an insurance company, but in 1984 that company closed its Gold Coast office. He then attempted to establish his own business as an independent agent, but this was not successful, and in 1985 there were serious financial problems as a result of which the plaintiff began to undertake some additional casual work: Exhibit 29 and see Exhibit 37. In July 1985 the plaintiff’s father found the husband employment as a tradesman’s assistant, but the financial problems continued, and there were disagreements over money.

In September 1986 the plaintiff sought legal advice and as a result solicitors wrote on her instructions to the husband’s mother, seeking a contribution from her and her husband towards the rates, electricity and telephone costs for the premises: p 216; Exhibit 28. That letter records instructions from the plaintiff that “the current relationship between yourself, Diane and her husband, Garry, are under severe strain causing her distress and concern”. The letter contains a threat that unless matters can be resolved, the plaintiff would seriously consider a formal separation which could lead to an application in the Family Court for the property to be sold and the proceeds divided in a way which would provide some share for the plaintiff as well as the husband and his parents.[6] This letter indicates the marriage was by then in difficulty (p.220); if that had not been the case before this letter was sent, it would certainly have been afterwards.[7]
[6]The plaintiff said that she was happy with the terms of the letter, Exhibit 28: p.216.
[7]The husband’s parents found her attitude unreasonable and harsh: Exhibit C to Exhibit 56

In response, the solicitors for the husband made an offer that the parents would pay a share of the outgoings, and offered a lump sum to settle any claim the plaintiff might have for an interest in the property: Exhibit B to Exhibit 56. Apparently matters were resolved to the extent that the parties remained living together at that stage, although the relationship deteriorated further thereafter. The father died in 1988 (Exhibit 56), and the mother developed Alzheimer’s Disease, being cared for by the husband and the plaintiff at home for a time, although by 1992[8] she was in a nursing home. On 4 March 1991 she signed an Enduring Power of Attorney in favour of the husband: Exhibit P to Exhibit 56. By 1991 there was conflict in the marriage, and the relationship was very tense: p 6. The plaintiff obtained a protection order against the husband in 1990: p.10. On 18 January 1993 the plaintiff obtained another protection order against the husband: Exhibit 30. The Family Court later found that they separated under one roof on 10 May 1993: Exhibit 7.
[8]The plaintiff said in January 1992: Exhibits 29 and 42, and the husband agreed: Exhibit 37.

On 6 March 1993 the husband signed a contract to sell the property for $350,000: Exhibit 33. The contract was subject to and conditional upon the purchaser’s obtaining approval from the Albert Shire Council for the rezoning of the property for use as a child care centre, on or before 1 June 1993 or such later date as would be accepted by the vendor. Completion was due on 1 March 1994, and the only deposit paid was the sum of $5,000, although the contract referred to a balance deposit of $30,000 payable on the date of completion. There was no real estate agent involved in the contract, and indeed the purchaser by a special condition warranted that he had not been introduced to the property by any real estate agent. The husband signed on his own behalf and also as the attorney of his mother. Following the death of her husband in 1988 she was sole owner of the other half share.

On 15 March 1993 the husband’s solicitor, Mr Twohill, wrote to the plaintiff advising that the contract had been signed and enclosing a copy, and two market appraisals which were for less than the contract price, suggesting that the sale was a good one, and encouraging the plaintiff to cooperate: Exhibit 27. She was also advised that she was not required to vacate the premises at that time, and that if the contract became unconditional her husband was prepared to discuss a mutual distribution of matrimonial assets. The letter also complained of an assault on him by the plaintiff, and of difficulties with the joint custody of the child of the marriage. It appears that by then there was also a domestic violence order in place against the plaintiff. There were also allegations of stirring up the neighbours to object to the application to use the property as a child care centre, and of threats to throw his belongings out of the house. In response to this letter, the plaintiff consulted the defendants: p.80.

The Defendants

At that time the first defendant was practicing as a solicitor in a sole practice, as she had been for some years: p 236. Her husband had since March 1984 practised as a barrister at Southport. He was trained in New Zealand where he was admitted in 1975 and worked as a legal practitioner until he came to Australia in 1981: p 226. He worked as an employed solicitor with a large Brisbane firm for 3 years before he went to the bar. In August 1992, for family reasons, he became a solicitor again and worked in effect as an employed solicitor for his wife (p 226, p 281), although he was described on the letterhead as a consultant. They did a range of work, including family law work: p 227, 236. Apart from the initial interview of the plaintiff by the first defendant, the second defendant had the carriage of the matter.

The plaintiff consults the defendants

The plaintiff said that she was referred to the first defendant’s practice by some sexual assault people: p.75. The first contact was by way of a phone call, she said with the first defendant: p 75. The first defendant did not recall a phone call from the plaintiff before she came into the office, although she did not positively deny it: p 240. The second defendant however had some recollection that the first contact he had with the plaintiff was when she telephoned and made some preliminary enquiries, and he suggested that she should make an appointment to come and see them: p 228. He did not make a diary note of this call.

It was common ground that on the first occasion the plaintiff attended the offices of the practice she spoke to the first defendant: p 6, p 27. This was on 18 March 1993: Exhibit 60. The plaintiff described this as a discussion of the matrimonial situation generally (p 75), although the note made by the first defendant refers to “general advice re property settlement”: Ex 60. The first defendant obtained some rudimentary details of the family situation at that time. There was some discussion about costs, and the first defendant said that she told the plaintiff that she would charge costs according to the Family Court scale: p 257. The plaintiff had no recollection of that (p 76), but said that she wanted to know up front what it was going to cost (p 66), and did not give evidence that costs would be charged on any other particular basis.

The plaintiff said that the first defendant had said that her husband was a barrister and could represent her in the Family Court: p 6, p 76. The first defendant’s version however was that she explained that her husband had been a barrister and that he could handle the matter and appear himself in the Family Court, or the firm could brief a barrister to appear for the plaintiff, although that would cost more: p 57. The first defendant said the plaintiff agreed to the former course, and expressed some enthusiasm for saving costs: p 57. The plaintiff denied this version, and said that she was told the second defendant was a barrister and the firm would be able to deal with the family law matter, that he was a consultant and a barrister: p 76. In any case, it was decided that the second defendant would handle the matter, and arrangements were made for the plaintiff to return on a later day to see him.

When the plaintiff did so, she was introduced to the second defendant by the first defendant: p 6. The plaintiff was unable to put a date on this visit except to say that it was some time before 25 May 1993; the second defendant’s note of the conference (Exhibit 58) is undated, but he conceded in cross-examination that it was possible that it took place on 7 April 1993: p 289. The plaintiff said that she was introduced to the second defendant as a barrister, and said that the second defendant had said that he was a barrister and could represent her in the Family Court: p 57. This account was denied by the first defendant (p 240) and by the second defendant: p.268. The second defendant said that he told the plaintiff that he had been a barrister for eight years, so that he had some experience of appearing in court: p 229.

Instructions for an application to the Family Court

The second defendant said he went through the information required to complete a form 7 for a Family Court application. This involved filling in the details of a blank form which he had in front of him: p 229. He was told during that interview that the plaintiff suffered from Graves Disease, something which he did not at that stage know anything about: he asked and was told that it was a thyroid condition, for which she was taking medication, and the condition was under control: p.84.[9] He said there was some discussion about costs and the second defendant said that they would be charging in accordance with the Family Court scale of costs: p 229. The plaintiff agreed that there had been a discussion about costs during that conference, but denied that she was told that they were charged in accordance with the Family Court scale; she said she was not aware that there was such a thing: p 78. At some point, possibly on 7 April 1993, the plaintiff paid into the first defendant’s trust account $1,000 on account of costs: p 269.
[9]He did not get a medical report on the condition, because the plaintiff said that the condition was controlled by medication and she was able to work, and because the fact that she had the condition was not in dispute: p.292. That was reasonable.

During the conference there was some discussion about the matrimonial situation, and the plaintiff told the second defendant that her husband was dealing with his mother’s property and money as if it were his own, that he was her sole next-of-kin, and that she was not aware of any will that the mother had made: p 79, p 115, p 230. The second defendant said that he gave the plaintiff a blank form 17, a statement of financial circumstances, for her to take away and complete so far as she could (p 231), although the plaintiff did not recall this: p 79. The plaintiff showed the second defendant the letter which she had had the other solicitors write to her husband’s mother in 1986 (Exhibit 28): p 82, p 231. The second defendant said that during this conference he gave the plaintiff a standard mediation form which was required to be given to all Family Court clients at this stage[10] (p 231), but he agreed that he did not give her the client care letter recommended by the Law Society, either then or later: p 292. He said that at the time this was not a requirement of the Law Society. He said that the plaintiff was at that stage also concerned about what would happen to the proceeds of sale of the house: p 231. The second defendant’s notes of this conference (Exhibit 58) do not throw any light on the disputed factual issues.
[10]The plaintiff denied this: p.82.

The second defendant said that some time later the plaintiff dropped in documents containing further instructions for him: p 232, Exhibit 29. The plaintiff acknowledged that certain documents that were shown to her, setting out the list of various things she had paid for, were in her handwriting and that she would have given them to the second defendant at some stage: pp 83-4.

The next conference was about one month later, although again the diary note (Exhibit 59) is undated. According to the second defendant, on this occasion he explained how the property division would work (page 232), and explained that he expected that the Family Court would in this case adopt a division of something like 50:50 between the parties: p 233. He told her that it was important that what they attempt to achieve be realistic, because by doing so, they would put costs pressure on the husband: p 235. He said that the plaintiff told him that she was at that stage not satisfied that the contract for the sale of the house was the true one: she believed that the property was worth a lot more, and therefore believed that her husband was getting some additional consideration not shown in the contract: p 234. The plaintiff agreed that she had told the second defendant that she did not trust her husband, but did not recall saying that she thought that the contract for the sale of the house was a sham. She conceded that she may have said that there was another contract at a much higher purchase price in respect of the property but claimed that she did not recall actually saying this: p 92. She expressed concern that there were things going on in respect of the property, and she was not being informed of what was going on.

The plaintiff agreed that there were some discussions about how the property settlement worked, and that she told him in the course of these discussions that their daughter was to be living with her, but she denied that she was told that this fact would increase her share by about 5%: p 55. She said that the second defendant had been told that she was earning more money than her husband had been for some time, and that the property owned by the husband’s parents had been purchased before the marriage and that she had not contributed to the purchase price: p 37-8. She said that her husband was an only child and that at the time the house was purchased she understood that when the parents died “we would inherit the house”: p 89. She said that she informed the second defendant of this. However the plaintiff denied that she had been told that there would be an apportionment in the order of 50:50 of the matrimonial property, and claimed that she was told that she would receive her husband’s share of the sale price of the house, with her husband receiving his mother’s share: p. 88. She was not clear about whether that advice was given at that conference or at a later time. She said that she told the second defendant that there was a lot of fear in the house, that it was a very stressful position living with her husband, and that that became worse after her husband sold the house, and she was in fear of him: p 91.

The second defendant prepared the documents for the Family Court proceeding, an application initiating proceedings (Exhibit 30),[11] an Affidavit by the plaintiff (Exhibit 31), and a Statement of Financial Circumstances (Exhibit 32): p.242. The plaintiff denied that the second defendant had taken her through the various documents paragraph by paragraph (p 98), but it was not suggested that anything in the documents was inconsistent with the plaintiff’s instructions to him. Exhibit 32 says that it was sworn by the applicant on 11 May 1993 and her signature was witnessed by the second defendant, who then appended the description “solicitor”. The Affidavit verifying the application also says that it was sworn by the plaintiff on 11 May 1993, although this time her signature was witnessed by the first defendant. On the same page is a “declaration by solicitor” signed by the second defendant, which states that he is “the solicitor” for the applicant.
[11]This copy of the application has been assembled with the pages in reverse order.

The application sought a division of property, including that some of the assets received by the plaintiff be attributed to lump sum spousal maintenance pursuant to s 77A of the Family Law Act, and interim orders including an order restraining the husband from dealing with the proceeds of sale of the matrimonial home. One of the orders sought in the application was that the husband be restrained from dealing with “the sale proceeds of the matrimonial home”, and in paragraph 9.6, dealing with the facts relied on pursuant to paragraph 79(4)(e) of the Family Law Act, there is the statement: “(n) The applicant seeks the payment to her of half the sale proceeds of the matrimonial home”. Elsewhere in paragraph 11 of the Application it is stated that the respondent (husband) and his mother own the property as tenants in common in equal shares, but after reference to the Enduring Power of Attorney and the mother’s mental state, there is the allegation that “the respondent has full power to deal with the property and to apportion the sale proceeds as he sees fit.” The orders sought on page 3 refer to a claim for 50% of the net assets of the parties, but these other parts of the Application suggest that the plaintiff’s case was being advanced on the basis that the whole interest in the matrimonial home should be treated as an asset of the parties. The Statement of Financial Circumstances (Exhibit 32) also contains the statement: “the respondent is the sole next of kin of his mother who is aged 75 years, is mentally incompetent and who owns half the matrimonial home. The respondent deals with her estate as if it was his own”. That would appear to be consistent with the plaintiff’s instructions at that time.

The Affidavit Exhibit 31 is dated 18 May 1993[12] and was sworn by the applicant, on the face of the document before the second defendant who is described as “solicitor”: Exhibit 31. This affidavit deposes to the plaintiff having made greater financial contribution than the husband during the marriage, and having also contributed as a home maker and care giver for the family which included the husband’s mother until January 1992. She alleged the husband’s parents paid $45,000 of the purchase price of $108,000, but did not contribute to mortgage payments, or to outgoings until October 1986 when the mother began to pay one-half of the rates and telephone account. The plaintiff had paid for nearly all the improvements of the home at a cost of $15,000[13]. She had also paid all the payments on a loan used to purchase a motor vehicle registered in joint names.
[12]The plaintiff agreed that it was likely that Exhibit 31 was sworn on 18 May 1993: p.99.
[13]The plaintiff said she had contributed so much because she had been led to believe that they would inherit the house: p.112.

The Application was filed in the Family Court on 25 May 1993; presumably the other documents were filed at the same time. A return date of 2 August 1993 was given by the court, for directions and to deal with the claim for interim relief.

One of the features of the plaintiff’s evidence was that she claimed that she had always sworn documents in front of the first defendant only, and she did not ever swear any documents before the second defendant: p 97. She agreed that her signature was on Exhibit 32 (p 97), but could not particularly recall swearing that document because she signed a lot of documents: p 96. It is apparent from the documents that on a number of occasions[14] her signature was witnessed by the second defendant when she swore documents, and indeed the second defendant said on one occasion when there was some urgency in the matter he took a document which had to be sworn to the medical centre where the plaintiff worked on a weekend so that she could swear it and he could file it in the Family Court the next day. p 277. The plaintiff denies this: p.169.[15] He asserted that the documents where he had signed as the witness were sworn in front of him (p 242, p 278) and the first defendant denied that she was the only one before whom documents were sworn: p 241. She did recall witnessing one document (p 238) and her signature does appear on more than one,[16] but a minority, of the documents sworn by the plaintiff.
[14]Exhibits 31, 32, 42, 44, 53, 74.
[15]She claimed however that he had come to her at that medical centre on at least three occasions for her to give him documents: p.11.
[16]Exhibits 30, 40, 41.

The husband’s response

On 21 July 1993 Mr Twohill wrote to the defendants advising that he acted on behalf of the husband, and advising that the purchaser had confirmed that approval had been given for use of the property as a child care centre, so that the contract was unconditional: Exhibit 33. On 27 July 1993, Mr Twohill wrote offering to agree to place half of the husband’s interest in the proceeds of sale, that is 25% of the total sale proceeds, on trust pending the determination of the application: Exhibit 34. The second defendant said that he then contacted the plaintiff and recommended that the undertaking be accepted, and she agreed: p.243. The plaintiff did not recall this: p.101. On 2 August 1993, the husband signed a written undertaking to the court not to dispose of the whole of his one half interest in the sale proceeds until the trial: Exhibit 35. That was accepted in satisfaction of the claim for interim relief: p 243.

The plaintiff said that she was present at court on 2 August (p.104) although the second defendant did not recall her being there: p.243. However, she did not recall consent orders being made (p.104) or having seen the written undertaking (Exhibit 35): p.105. I accept that the plaintiff did attend the Family Court on 2 August, when the undertaking was provided. As well, directions were made for the conduct of the proceeding, including for a conciliation conference to be held at the Coolangatta Court House before a registrar on 27 October 1993: p.243; p.104; Exhibit 36.

The husband’s answer and cross-application (Exhibit 37), affidavit (Exhibit 38) and statement of financial circumstances (Exhibit 39) were sworn on 2 August 1993, filed in the Family Court on 10 August 1993 and served under cover of a letter dated 11 August 1993: Exhibit 64. In the cross-application the husband offered the plaintiff one-half of his one-half share of the proceeds of sale of the property, after payment of costs of sale and the discharge of the mortgage. He also proposed that she retain the motor vehicle and any furniture other than the furniture the husband had in his possession at the date of commencement of cohabitation, and her superannuation and life insurance entitlements, and that he retain the furniture he then had and his superannuation and life insurance entitlements. The answer set out the history of the acquisition of the property as I have noted already, alleged that the husband had made all the loan repayments, and alleged that his parents had contributed $4,000 towards substantial improvements to the property.

The husband said his wages were paid into a joint account from which the mortgage payments were made, whereas money received by the plaintiff was retained by her. The husband’s affidavit said that the plaintiff had stopped making payments on the loan for the motor vehicle in April 1993, that both parties had contributed as home makers, and that, since he signed the contract to sell the property, the plaintiff had voiced her disapproval of his looking after their daughter while she was at work. He said that as his mother’s health declined she would attend day care each day, and received meals-on-wheels, and that he generally attended to his mother; he said that the plaintiff and his mother did not ever get on well together: Exhibit 38 para 14. He said that the plaintiff’s assistance to his insurance agency work had been minimal. He said that there were domestic violence orders both ways, but denied that there had been any domestic violence towards the plaintiff in the past, and said that the order against him was made by consent without admission: para 26.

On 16 August 1993 the first defendant sent an account for $3,503.70 for fees incurred to the plaintiff: p 274; Exhibit 5.[17] On 18 August 1993 the husband’s solicitor sent to the second defendant a fax alleging that on 15 August the plaintiff had assaulted the husband at the property: Exhibit 36. The letter also accused the plaintiff of taking the husband’s tape recorder, of interfering with the husband’s relationship with their daughter, and of continually harassing and abusing the husband. She is also said to have threatened not to leave the premises until she had money in her bank account, which the husband thought would jeopardise the sale. Accordingly, the letter contained a demand that the plaintiff vacate the premises by 27 August 1993 otherwise an application would be made to the Family Court.
[17]The $1,000 was transferred from trust, and the balance paid by October: p.7, p.24, Exhibit 23.

On 19 August 1993 the second defendant discussed this letter with the plaintiff, and was told that actually the husband had assaulted the plaintiff, who had attempted to fight him off without success: p.245. It does not appear that there was a specific reply to the letter, or that anything further was done at that stage by the husband to obtain possession of the house.

On 28 August 1993 the second defendant had a conference with the plaintiff for the purpose of going through the husband’s documents, and preparing a response to them: p.245.[18] This took one hour (Exhibit 63) and involved a certain amount of drafting of documents, although they were presumably not finalised that day, because they were executed on 8 September 1993.[19] There was a reply and answer (Exhibit 40) and a further affidavit: Exhibit 41. The plaintiff there sought a 50:50 division of the sale proceeds of the property, but without first attributing half of them to the husband’s mother. That was seeking in effect to have her interest treated as his property. She also sought orders that the total of the parties’ superannuation and life insurance entitlements be divided between them equally.
[18]The plaintiff did not recall this: p 108.
[19]They were witnessed by the first defendant, because the second defendant was not there: p 246.

The plaintiff disputed some of the husband’s allegations about the extent to which he contributed financially and in respect of care, and alleged that the marriage had detrimentally affected her earning capacity because she had relinquished her position as a theatre sister at the Gold Coast Hospital, and was unable to maintain her superannuation contributions: Exhibit 40. She alleged that the husband had the sole use of a vehicle registered in his mother’s name and purchased with her money in January 1993. The affidavit also alleged that the husband was his mother’s only next-of-kin and heir so that he would inherit her half interest in the property on her death. Later in the affidavit this was repeated, together with an allegation (supported by detailed particulars) that the husband was already using his mother’s money as if it was his own, by withdrawing various funds for his own use, or to spend on the children. The affidavit exhibited a copy of the letter of 18 August 1993, and she admitted that she did not wish to leave the property prior to completion, and alleged that she had been assaulted by the husband.

The conciliation conference

A conciliation conference was held before a registrar on 27 October 1993. About two weeks earlier the husband’s affidavit of documents had been served, and it made no reference to any will of his mother: p 247. The plaintiff said that she and the second defendant attended the conference, and that prior to the conference there was just general talk, although as they walked in the door he handed her a letter concerning the future costs of the proceeding: p 8, Exhibit 18. She denied that the second defendant had announced his appearance at the conference as a solicitor: p.116. The matter was not resolved at the conference: p 9. She did not recall a settlement offer being made at the conference: p 113. Indeed she did not recall there being any negotiations. She said she was not aware that the second defendant and Mr Twohill had had a conversation with regard to an offer that was to be made: p 59. She recalled that there was some conversation about the husband’s mother’s will and the question of inheritance, but that there was no will produced: p 110. She said: “We had to see the will. At some time we had to have that will disclosed to us.” This was because she had earlier been led to believe that they would inherit the house, and she had learnt from experience that her husband was a liar: p 110. Her husband was saying that he was not a beneficiary under his mother’s will, whereas the plaintiff was saying that he was, so the matter had to be clarified: p 111. She could not recall whether there was some discussion about whether $350,000 was the real sale price of the property, but she did not say that it did not happen: p 111. Ultimately the registrar said that the matter was not going to settle, and gave directions appropriate for it to proceed to trial: p 113.

The second defendant said that prior to the conciliation conference he had a conference with the plaintiff and told her how the conciliation conference would work, and gave her the letter Exhibit 18 advising her what costs would be incurred if the matter proceeded further: p.247. That was required by the Family Court at the time, and the letter had to be produced to the registrar during the conference in order to demonstrate that it had been provided to the client: p.248. No doubt this was a means used by the Family Court to encourage realistic settlements prior to trial. During the conciliation conference the second defendant raised those matters then alleged by the plaintiff, in particular that the husband was his mother’s sole next-of-kin and he was already spending her money so that her property should be taken into account as a resource available to him: p 248. He said that at that stage the husband’s solicitors did not seek specifically to rely on the will which was later produced, but merely said, somewhat obliquely, that it should not be assumed that the husband would inherit the mother’s property: p 249. There was discussion of what the figures would be with and without a will. He recalled that the registrar had urged the husband and the solicitor to make discovery of any will that they had, and then made directions for the matter to go to a hearing: p 249. He did not recall if an offer was actually made at the conference on behalf of the husband: p 249. By the time of the conference whether there was a will and what it said had become the main focus of the dispute: p 82.

After the conference he said that he told the plaintiff that he expected a formal offer of settlement would shortly be made on behalf of the husband, and that any such offer would have to be considered carefully, because if it were not accepted and the matter went to trial and the plaintiff did not do better than the offer she would be at risk of paying his costs as well as her own: p 249. He said that at least by this stage he had warned the plaintiff of the cost implications of not bettering an offer: p.310. The plaintiff denied that after the conference he told her that he expected that there would be a formal offer made soon: p 113. She also denied that he warned her of the cost implications if the offer was not accepted and not bettered: p 114.

The second defendant later made a typed diary note to summarise the conference, a copy of which is part of Exhibit 9. He said that sometimes he would type up such a note because his handwriting was difficult to read.[20] It is certainly difficult to read: see for example Exhibit 62, which I had the second defendant read into the transcript at p 245. In this case I suspect the main purpose of the note was to record in detail the directions given by the registrar at the conference, so it was important that it be legible. However, the note confirms the second defendant’s evidence as to the attitude of the husband at the conference, and does not record that any offer was made on behalf of the husband. The plaintiff said that when she collected the file from the defendants it did not include the typed diary notes: p.24. In view of this I do not attach too much significance to these documents, as there is an issue of credit which may cast doubt on whether they really were contemporaneous.
[20]He explained why this was so at p 290.

According to the second defendant the following day (28 October) the plaintiff rang him and complained that in conversation with her the husband had referred to the second defendant as a “two bit barrister”: p 250. He described her as “up in arms”, and he told her that the husband was just trying to unsettle her, but that if she wanted someone else to appear for her at the trial he would engage a barrister, although that would add about $3,000 to the estimate of costs. She said that she wanted him to appear for her. She also said she had found a cheque butt where she had paid $75 to a firm of solicitors in respect of an occasion when she had consulted Mr Twohill who was now acting for her husband, and she wanted to recover her file from that firm. She also said that the property was back on the market for $1.6 million, and that she knew that her husband was his mother’s beneficiary, and that any will he produced to the contrary would be a forgery. He was already spending his mother’s money as if it was his own. The second defendant made a diary note of the conversation, which he says he made the same day, also a typed note: p 250, Exhibit 9. The note records among other things: “She said she did not want to settle. I told her I would have to tell her of any settlement offers.”

When cross-examined about this conversation the plaintiff said that she had told the second defendant earlier than this, at her initial consultation with him, that Mr Twohill had earlier given her matrimonial advice, although she did at a later date go through the cheque book and find confirmation: p 114. She conceded that it was her instructions that her husband was the sole beneficiary, but she could not recall saying that to him on that date: p 115. Indeed she did not recall telephoning him at all on the day after the conference. She did not recall saying that the property was back on the market for $1.6 million, or specifically saying at that time that her husband was a liar, but she may well have said that at some stage, because he was: p.115. She denied that she said on 28 October that she did not want to settle the matter, or that he said that he would have to tell her of any settlement offer that was made: p 115. She agreed that in October 1993 the husband was harassing her at home, telling her that the second defendant was a two bit barrister, and that she told the second defendant about that, and that the second defendant had said that the husband was just trying to unsettle her, but could not say that that occurred on that day; she said she dismissed this because she had confidence in the second defendant: p 116. She denied that the second defendant offered to engage a barrister if she wished: p 116.

The husband’s settlement offer

On 3 November 1993, Mr Twohill made on behalf of the husband a formal offer to settle the matter on the basis that on settlement of the sale of the property the plaintiff receive $90,000, that each party retain the furniture brought into the marriage by that party and any bank accounts in their respective names and their superannuation entitlements, and that the plaintiff retain the motor vehicle in her possession. A motor vehicle had been purchased with money borrowed on security of the matrimonial home, but the plaintiff had been making payments on that loan, and had retained possession of the vehicle. The offer was open for acceptance for seven days, and was not accepted within that time.

The second defendant received the offer on 3 or 4 November (p 283) and told the plaintiff of the offer: p 249. He said that she was not interested in accepting it. He did not advise her to accept it; indeed he advised her that, because no will had been discovered, she should not accept it, on the basis that she could successfully argue that in those circumstances, in the absence of a will, her estate was a resource available to the husband and therefore should be taken into account: p 251. The plaintiff said that she was not informed that there had been an offer: p 9. She denied that the second defendant had telephoned her to tell her of the making of the offer, or that he had given her any advice in relation to the offer: p.117. She did not say that if she had been told of the offer she would have accepted it, or that she would have accepted it if advised to do so by the second defendant.

On a later date in November Mr Twohill telephoned to enquire why the offer had not been accepted: p 251. The second defendant said that this was because his client was proceeding on the basis that the husband would inherit his mother’s property, no will having been discovered. Mr Twohill then said there was a will, and said he would see if he could get instructions to disclose it to them.

For that purpose a further conference was organised, to take place on 7 December 1993. This was held at the Southport Courthouse, and the plaintiff and second defendant were both present. The plaintiff had been told about the conference, and had been told that its purpose was for the will to be produced: p 117-8. She maintained, however, that a will was not produced at that conference, and did not recall a photocopy of a will being produced either: p 118. Her recollection was that there was a lot of conflict at that meeting and that it was not a very long meeting, but she did not suggest that anything else occurred:[21] p 9. She said that after the meeting as they walked across the road there was a discussion about the $90,000 and the second defendant said to her: “I can get you more money than that”: p 119. She maintained that he did not say that there was an offer, but he talked about the sum of $90,000: p.10. It is difficult to reconcile a reference to $90,000 as something she was told the second defendant could do better than with her assertion that she had not been told of the offer to settle at that amount.
[21]Some of the things the plaintiff recalled about the earlier conference fit in with the second defendant’s account of what occurred on this occasion: see [41].

The second defendant said[22] that at the conference a copy was produced of a will leaving everything to the grandson: p 251. He then had a private discussion with the plaintiff and was told that she would not accept anything less than the production of the original will, because she did not accept that this was a photocopy of a valid will: p 251-2. The second defendant conveyed that instruction to Mr Twohill, who replied that the husband was not in a position to produce it because he held it on behalf of his mother. The second defendant said that after the conference as they were returning to his office the plaintiff said that she had some recollection that in fact someone had told her that her mother-in-law had made a will in about 1986 and left the estate to her grandson: p 252. He said he told her that if there was a will in favour of the grandson that would change the whole situation, and in those circumstances the offer that the husband had made would be a good basis for settling the matter; he said that her instructions remained that she would not settle unless and until the original will was produced, and at no time was the original will ever produced: p 252, p 310. I find that a copy of the will was produced on this occasion. Apart from my general preference for the evidence of the second defendant, as explained below, that was the whole purpose of this conference and I cannot believe that it would have been arranged and held but a copy of the will not produced. The husband had no possible reason not to produce it then.
[22]His account was supported by a typed diary note: Exhibit 9.

Preparation for trial

On 10 November 1993 the plaintiff executed an affidavit of documents which had been prepared by the second defendant: Exhibit 53. The plaintiff agreed that she signed the affidavit of documents but maintained that occurred in front of the first defendant: p 154. It is apparent from the document that her signature was witnessed by the second defendant. The plaintiff at the trial produced a photograph showing a bruise to her left upper thigh: Exhibit 26. She said this was taken in January 1994 and was the result of her husband having kicked her: p 73. That does provide support for her account of domestic violence at that time.

On 4 February 1994 the plaintiff had a two hour conference with the second defendant for the purpose of giving instructions for her affidavit of evidence in chief: Exhibit 65, p 252. The document was subsequently prepared by the second defendant, sworn by the plaintiff on 14 February 1993[23] before the second defendant, and filed in the Family Court the following day: Exhibit 42. The plaintiff recognised her signature on the document, but did not recall swearing it in front of the second defendant, and reiterated that she swore the documents in front of the first defendant: p 122. The affidavit repeated the claim to half of the net sale proceeds of the property, and the assertion that the husband was the mother’s heir and was using her money as his own. She also alleged that prior to the marriage she was told by the husband that his parents’ interest in the property was limited to the amount of their contribution of $45,000, and that in 1986 she was assured by him that the sale proceeds of the property would be distributed in accordance with the owners’ respective contributions. The affidavit exhibited a copy of the letter Exhibit 28, the contract Exhibit 33, and a statement of financial details executed by the husband in 1990.
[23]Or possibly the 15^th: Exhibit 81

The plaintiff said in cross-examination that there were aspects of that affidavit which were not correct. She said that there was not sufficient evidence directed to the abusive relationship she was in, her husband’s alcoholism and the abuse she had received from him, there was no reference to protection orders, there were no financial statements reflecting what had been earned during the marriage to give a comparison of the earnings of the parties, there was no mention of the fact that her superannuation went down when she left the hospital, whereas her husband’s superannuation went up when he obtained employment in 1985, there was no medical report concerning her Graves Disease or to show that his mother had Alzheimer’s Disease, there was no list of improvements which she had paid for the property, there were no bank statements to prove that she made the payments on the car, and there was no mention of her husband having an enduring power of attorney and having control of the mother’s finances: p 219-20. When it was pointed out that there was reference to the power of attorney and control of the mother’s finances in paragraph 23, her complaint became that there were no documents supporting that allegation in the affidavit.

That was true but irrelevant, as the point was not contentious; indeed a copy of the power of attorney was exhibited to the husband’s affidavit. In relation to the other matters, income statements were put before the court ultimately, there was evidence before the court in relation to respective superannuation entitlements which showed that the husband’s was larger, the medical conditions of the plaintiff and the husband’s mother were not controversial, the evidence as to financial contributions to improvements was in another affidavit and was allowed to be read so that any deficiency in this affidavit in that respect was overcome at the trial in the Family Court, and the proposition that the plaintiff had made most of the payments on the car was not controversial.[24] Her complaints about the content of the affidavit are therefore without substance. The significant feature of the affidavit is that it ignores the will, a copy of which I find had been produced on 7 December. The plaintiff made no complaint even at the trial about that aspect of the affidavit, which suggests that the statements in Exhibit 42, which ignore the existence of the will, were consistent with instructions at the time that until they saw the original will she was not satisfied that the document her husband was relying on was not a forgery. She conceded that she did not make any complaint to the second defendant at the time about any of the contents of Exhibit 42: p 216.
[24]See the husband’s affidavit of evidence-in-chief: Exhibit 56, para 19.

The contract for the sale of the property was due to settle on 1 March 1994. The plaintiff ought to have left the premises prior to that date, but did not do so.[25] The purchaser’s solicitors complained on 2 March that she was still there, and that she appeared to be removing furniture and fittings, which was contrary to the contract: Exhibit 43. The husband’s solicitors then complained of this to the second defendant, and advised that the purchaser was going to hold $5,000 to cover any damage done, and that reimbursement of any amount lost because of damage done would be sought from the plaintiff. They demanded the plaintiff vacate the premises prior to 3.30pm on 2 March. The plaintiff did move out that day, and settlement proceeded. She came to see the second defendant on 3 March by which time she had moved out: p.253, Exhibit 66. The second defendant wrote that day to Mr Twohill concerning custody of and access to the daughter, Peta: Exhibit 67. Mr Twohill replied on 8 March in relation to Peta: Exhibit 71. The parties were by then in conflict on this topic also.
[25]The husband had been moving things out systematically over a couple of months before he finally moved out suddenly shortly before settlement, taking most of the furniture with him: p.57, p.223. The two sons had moved out before the husband left: p.223.

The husband’s solicitor under cover of a letter of 17 March 1994 (Exhibit 69) served an amended application (Exhibit 72), an affidavit of evidence in chief and in reply to the plaintiff’s affidavit of evidence in chief (Exhibit 56), a supplementary affidavit of documents (Exhibit 75) and a notice to produce.[26] The letter also sought full disclosure of the plaintiff’s superannuation entitlements, and made an allegation that she had not disclosed entitlements in respect of her employment at the Gold Coast Hospital or her subsequent employment. The letter also sought evidence of her entitlement in relation to an insurance policy.[27] The amended application sought a higher proportion (55%) of the husband’s half interest in the net sale proceeds of the property for himself, and that the plaintiff’s share bear any amount which had to be paid to the purchaser because of damage done to the property by the plaintiff, and any additional costs payable by the husband because of the delay in settlement and the dispute about damage. The supplementary affidavit of documents referred to the conveyancing file on the sale of the property, and various other documents including the contract for the purchase of the property in 1981, but still did not disclose either the will or a copy of the will.
[26]The documents were sworn by the husband on 11 March 1994, and had been filed in the Family Court on 17 March 1994.
[27]The plaintiff had a policy with that company: Exhibit 19, which does not disclose its value. However, it appears to be a policy of life insurance rather than superannuation: p.46. Presumably it was included in the figure for the plaintiff’s insurance policies on p.5 of Exhibit 74.

In his affidavit of evidence the husband disputed the plaintiff’s evidence that there was an arrangement in relation to the property when it was purchased, or when they married, or that he said anything to that effect to her; he said he told her that he had an arrangement with his parents under which he would be responsible for the outgoings of the property: Exhibit 56, para 5. He did admit that in about 1986 he told the plaintiff that the ownership was in proportion to the initial contribution by his parents, meaning by this that it was approximately 50%: para 24. He denied that the mother’s interest in the property was held on trust for him or anyone else: para 44. He disputed in some detail the plaintiff’s allegations that he paid none of the household expenses. He denied that he was using his mother’s money as his own, and said that money from her account was used for his mother’s expenses or for the children: para 26. He alleged that both the boys left the property prior to completion of the sale because of the stress generated by the plaintiff within the home (para 27) and exhibited statutory declarations made by them in support of applications under the Students Assistance Act: Exhibits D and E to Exhibit 56. He denied that he was getting anything for the property other than the consideration stated in the contract. He alleged that for five years he had been subjected to constant outbreaks of physical and verbal abuse from the plaintiff: para 28. He said he had been told by their daughter, Peta, that she was willing to come and live with him once he had obtained a home of his own: para 28. He disclosed superannuation benefits under the Queensland Electricity Supply Industry Superannuation Scheme of $11,564.96 as at 1 July 1993, and a superannuation policy with Friends Provident which had an estimated surrender value of less than $10,000: para 34.[28]
[28]The value of superannuation benefits disclosed in the husband’s updated statement of financial circumstances was $12,651.14: Exhibit 73.

On 18 March 1994 there was a further letter from Mr Twohill concerning access to Peta, alleging that the plaintiff was denying the husband reasonable access: Exhibit 70. On 24 March 1994 the plaintiff had a conference with the second defendant concerning the husband’s material, and those two letters: Exhibit 68, p.254. The plaintiff did not appear to recall that conference: p.128. Instructions were taken for an affidavit in reply, which was prepared by the second defendant and sworn by the plaintiff on 6 April 1994, before the second defendant: Exhibit 44. Again when shown the affidavit the plaintiff said that she signed the documents in front of the first defendant: p 128. In the affidavit the plaintiff alleged that the items she had removed from the property were items that belonged to her, which the husband had no right to sell; if any of them were fixtures, that was not correct. She also alleged that the husband had taken a number of items of property which belonged to her, which were listed in the affidavit. On the same day the plaintiff swore (again before the second defendant) an affidavit verifying an updated statement of her financial circumstances: Exhibit 74. This referred to three superannuation policies, which are said to have withdrawal benefits (as at various dates between June 1992 and December 1993) totalling $5,663.51.

On 5 April 1994 there was a further conference between the plaintiff and the second defendant: p 255. He said that the purpose of the conference was to explain how the trial would proceed. He told her that she would give evidence, he would ask her some brief questions and then she would be cross-examined by the husband’s barrister and that he would have the opportunity to ask some further questions at the conclusion, and then the husband would be subject to the same process, then when it was completed he would make submissions, the barrister for the husband would make submissions, and he expected that a judgment would be delivered: p 256. He produced a diary with a note of the appointment with the plaintiff at 11.30am that day.[29] The plaintiff did not recall this meeting: p 128. She later said that the second defendant did not explain at all to her about what was going to happen: p 151. What he claimed to have told her is what anyone would have expected to occur, although as discussed below in the event the trial proceeded differently.
[29]Curiously, there were on the file attendance notes for conferences with the plaintiff on 4 April and 6 April but not on 5 April: Exhibit 81. Perhaps the appointment was made for 5 April but the plaintiff actually came on another day.

On 7 April 1994 a list of the documents the plaintiff intended to rely on at the trial was filed in the Family Court in accordance with the registrar’s directions: Exhibit 77. A similar document on behalf of the husband was dated 8 April 1994, and was presumably filed that day: Exhibit 78. The husband also swore an updated statement of financial circumstances on 7 April 1994 (Exhibit 73). Inspection of documents occurred on 7 April 1994: p 256, Exhibit 81. The second defendant prepared a chronology (Exhibit 76) and a similar document was prepared by the husband’s solicitor: Exhibit 79.

The application was set down for hearing in the Family Court at Brisbane on 11 and 12 April 1994. It was not reached on 11 April, although the parties attended the court: p 13, p 257. The plaintiff was accompanied by a friend and supporter, Ms Page: p 175. On 12 April the matter came on for hearing before Judicial Registrar Jordan, as he then was.[30] The plaintiff had arranged to meet the second defendant at the coffee shop on the ground floor of the court building, and came with Ms Page. The plaintiff said that he just paced up and down: p 13. He appeared agitated and did not want to talk: p 14. Ms Page confirmed that nothing was really discussed at that time: p 176. The plaintiff said that when it was time to go in he told Ms Page that she could not come into the courtroom, and when they went inside he told her (the plaintiff) to sit there and shut up and he would do all the talking: p 14. That was essentially confirmed by Ms Page: p 176. The second defendant agreed that he said that Ms Page had to stay outside, because at the time he believed that she was not allowed to come into the Family Court, although in fact by 1994 the Family Court did sit in open court: p 291. He denied that he told the plaintiff to go into court and to shut up, but he agreed that before the hearing he was tense and said the plaintiff was also: p 291. The plaintiff said she was terrified in the courtroom because she was the only female there: p 14.
[30]Now Justice Jordan of the Family Court.

The hearing on 12 April 1994

The matter went all day. The plaintiff said that it was not the judicial registrar who was in control of the court on this occasion, but the husband’s barrister: p 14. What occurred on that day appears from the transcript of the hearing, which is in evidence: Ex 54. The hearing opened with appearances being announced, and it was said by the second defendant that there were some objections to each side’s material, and that the part objected to in the husband’s evidence in chief was not being pursued. The second defendant read his material which included a paragraph from an affidavit provided in an interlocutory proceeding, something which was ordinarily not done in the Family Court at the time, and counsel for the husband objected. After hearing argument, the judicial registrar agreed to allow the second defendant to rely on the paragraph in the earlier affidavit he sought to rely on, notwithstanding this failure to comply with the rules: p 5 of Exhibit 54.

Counsel for the husband read his material, and there was some discussion about the witnesses who would be called, and the length of the trial. The judicial registrar expressed the view that it was largely a one issue case, as to what property could be taken into account, and wondered whether it would be very productive to spend much time on the question of the extent of the contribution of the respective parties during the marriage: p 7. Counsel for the husband submitted that the property of the mother was not a resource of the husband as a matter of law, and pointed out that the mother’s estate had not been left to the husband: p 7. At p 8 the judicial registrar suggested that he could handle the argument as to what assets were involved on the material, and summarised the matter by saying that the husband made a significant capital contribution to the acquisition, and the wife asserted a marginally heavier load on her from time to time, so that perhaps they started to balance out. Counsel for the husband said that it was not accepted that the wife had made a greater contribution during the marriage, and at p 9 questioned the reference to maintenance. The second defendant made it clear that what was sought was some allowance under s 77A.

At p 10 the second defendant explained the plaintiff’s case, that the husband was effectively the beneficiary of his mother’s estate, that he had a power of attorney and was using her money as if it were his own, and that this had been asserted twice in the material and had never been contradicted on oath: p 10. He asked the court to take into account the husband’s beneficial entitlement to the mother’s estate, although accepting that that could not be directly the subject of an order. For this reason the wife was seeking far greater than 50% of the husband’s share of the proceeds of sale. At that point the registrar said that he wanted the opportunity to complete reading the material, and after counsel for the husband agreed to some of the husband’s material which had been objected to being omitted, the court adjourned for a short time.

After the adjournment the judicial registrar sought to identify the relevant assets for division. The second defendant sought to include items removed from the home by the husband, and superannuation benefits. The judicial registrar pointed out the latter were not assets, and asked what the position was. As a result, two documents concerning superannuation entitlements were tendered and made exhibits.[31] There was then some discussion about what the material said about the position of the husband’s mother’s estate. The plaintiff’s earlier affidavits had contained assertions that the husband was the beneficiary of his mother’s estate. There was some debate about whether the affidavit in reply to the husband’s affidavit of evidence in chief had properly incorporated matters stated in an earlier affidavit made by the plaintiff. That ultimately was resolved by the judicial registrar deciding not to admit the earlier affidavit, unless it became relevant to determine when this allegation had been made on behalf of the plaintiff: p 20. There was then some debate about the effect of the husband’s material in response. There was an indirect denial in para 40 which the judicial registrar regarded as sufficiently clear.
[31]These are not in evidence, but apparently showed that the plaintiff had benefits valued at $7,341 and the husband $12,651: Exhibit 7.

Counsel for the husband foreshadowed that he would be seeking to tender a copy of the mother’s will, and the second defendant pointed out that there had never been any will discovered: p 21. The judicial registrar then pointed out that so long as the mother was alive she was free to do what she liked with her property, and could leave it to the grandson, or deal with it in some other way, as she wished, and this was not something which could be redressed in those proceedings. The judicial registrar then said that the wife’s claim was therefore limited to 50% of the husband’s share of the proceeds of sale subject to adjustments for furniture and superannuation: p 22. The second defendant sought a short adjournment to take instructions, and this was granted with the comment that in respect of this issue the judicial registrar did not have any room to manoeuvre.

After the adjournment, the second defendant said he had taken instructions and that the applicant did not persist with the allegation that the husband was entitled to his mother’s estate: p 22. He then sought leave to amend the application to seek 60% of the matrimonial pool, an application which was opposed by counsel for the husband, but which was allowed by the judicial registrar: p 24. The second defendant then submitted that there was still some live issue between the parties as to the respective contributions during the marriage, and the judicial registrar made some comments by which he encouraged the parties not to engage in cross-examination. After a short adjournment for the representatives to confer, it was announced that there would be no cross-examination. It seems to me that the judicial registrar made it quite clear that cross-examination was not going to assist him, saying at p 25 “I cannot identify a matter in issue any more that requires [cross-examination]”.

There were then a series of objections to the plaintiff’s material. Counsel for the husband objected to the plaintiff’s statement as to the value of certain chattels, on the ground that she was not qualified as an expert to give opinion evidence, and the judicial registrar accepted that it was not opinion evidence but said that the plaintiff was still entitled to give an estimate. There were then some other objections taken; of these six were successful, two being unopposed, three were unsuccessful, one was partly successful, and one was reserved. Two others were dealt with consistently with earlier rulings.

There was then a schedule tendered by consent setting out the income from taxation returns of the parties: p 33. A copy of this document became Exhibit 83 before me: it has on it a set of different figures by the wife which are in the handwriting of the second defendant, and must have been also before the judicial registrar, as this document was a copy of one obtained by the plaintiff from the Family Court Registry: p 327-8. Counsel for the husband then tendered a copy of his tax returns for 1984-85, a copy of the contract of sale of the former matrimonial home dated 6 March 1993, and a letter from the Queensland Electricity Industry Superannuation Board dealing with the husband’s superannuation entitlement.

Counsel for the husband then foreshadowed that he would be seeking an order that certain chattels which he alleged had been taken by the plaintiff but in fact belonged to the husband’s mother be returned to the husband, and the second defendant said that he still wanted to cross-examine the husband in relation to the dispute about chattels. The judicial registrar indicated a strong preference not to become involved in what he described (p 35) as the “pots and pans of these cases” and encouraged the parties to resolve the matter during the lunch adjournment which he then took. After lunch it emerged that there was still some conflict about the chattels, but after further argument the husband conceded certain items claimed by the wife, and the matter actually in dispute came down to three items claimed by the husband, in respect of which counsel for the husband said he would not cross-examine the wife, but merely make submissions, a course which the judicial registrar appeared to approve: p 39. It followed that it was unnecessary for any oral evidence to be taken, and the matter proceeded to submissions.

The second defendant addressed first. He submitted that it should be assumed that the custody of the daughter would remain with the plaintiff, who had custody and whose custody had been undisputed until quite recently, and suggested that the dispute was tactical. He emphasised that the plaintiff had been working hard throughout the marriage, commonly having two jobs, and that she had left significant employment because of her pregnancy. He submitted that she had made a greater financial contribution to the household and in recent years her income had exceeded his. Although the schedule Exhibit 1 in the Family Court (Exhibit 83 before me) showed the husband having greater income, that was only until June 1990. By reference to the updated statement of financial circumstances, the wife’s income was now substantially greater than the husband’s: p 41.

He referred to the assistance the plaintiff had provided in caring for the husband’s parents, and noted that the husband’s assertion, that there was an agreement that he would pay all the outlays in connection with the house, was inconsistent with the position adopted in response to the solicitor’s letter in 1986. As well the agreement was not mentioned in the letter from the husband’s mother at about that time. He then referred to the amended cross-application in relation to damage to the property, and submitted that the figure of $5,000 had just been “plucked out of the ether” and there had been no quantified claim made by the purchaser. There was also no proper itemisation of the figure claimed for additional professional costs by the husband.

He submitted that in view of the extent of the wife’s contributions and her likely retention of custody of the child an apportionment in her favour of 60% was justified. He also asked that the superannuation entitlements be divided equally, noting that the husband’s superannuation entitlement had accrued during the marriage, and there were some brief submissions in relation to chattels. He also referred to the issue of domestic violence, and submitted that that should be treated as a neutral issue; he appears at that point to have been concentrating on countering some of the allegations in the husband’s material that there had been domestic violence shown by the plaintiff.

Counsel for the husband submitted there was no evidence that his client had a motor vehicle, and that any question of domestic violence was irrelevant to the issues which arose in that application. His essential submission was that there had been a substantial capital contribution at the beginning by the husband which had not been matched by the wife, and that they had both been directly and indirectly contributing to the repayments and other costs thereafter, and the marriage was not of such a length as to dissipate the effect of the initial disparity of contributions. He submitted that it should not be assumed the daughter would be remaining with the husband. He went through various factors referred to in the Act but only in a negative sense, submitting that they did not impact on the current situation, and made some submissions in support of the additional orders sought in the husband’s amended application, and in relation to the chattels.

It was apparent to me from the transcript Exhibit 54, and it should be apparent from this analysis, that the husband’s barrister did not have things all his own way during the trial, and the way in which matters proceeded was very much under the control of the judicial registrar. The plaintiff’s impression to the contrary (p 14) was therefore inaccurate. That is a matter relevant to the reliability of her evidence. It is also apparent that the various relevant parts of the plaintiff’s case were drawn to the attention of the judicial registrar.

Judgment of the Judicial Registrar

Judgment was given the same day, with ex tempore reasons being delivered: Exhibit 7. The judicial registrar dealt with the history of the marriage, and noted that at the commencement of the marriage the wife had some furniture and a motor vehicle of modest value and some limited cash, whereas the husband had some furniture and some limited cash and equity in two properties valued by him at $40,000. He referred to the acquisition of the property, and found that the loan repayments were made from the joint resources of the parties. He noted that the plaintiff took the view that the husband’s real entitlement to the proceeds of sale was in excess of his legal title, but was of the opinion that on the evidence before the court the mother had a legal and beneficial entitlement which was reflected in her formal legal title. The judicial registrar did not take into account in any way the mother’s interest in the proceeds of sale, and noted that the second defendant had ultimately not pressed the point. It seems clear from his remarks that it would not have assisted the plaintiff if the point had been pressed.

Claim for emotional distress

It was submitted that it was open to award damages for breach of contract[72] for something less than the psychiatric injury, on the basis adopted by the High Court in Baltic Shipping Co v Dillon (1993) 176 CLR 344. That case involved damages for breach of contract against a shipping company by a passenger who had been carried on a cruise when the ship struck a rock and sank. The damages recovered by her included an amount for disappointment and distress, and various members of the High Court referred to the restrictions which apply when damages of such a nature are claimed in actions for breach of contract.
[72]The High Court in Tame v New South Wales (supra) confirmed that damages for emotional distress are not available in tort: see eg Gleeson CJ [7].

Mason CJ at p 365 said that damages for disappointment and distress are not recoverable unless they relate to some physical inconvenience (or personal injury) caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation. The approach of Brennan J, p 371 was similar, and in respect of this aspect of his judgment, Toohey and Gaudron JJ agreed with the Chief Justice: p 383, 387. Deane and Dawson JJ also said that that case was one where the defendant had expressly or impliedly agreed to provide pleasure entertainment or relaxation or to prevent molestation or vexation: p 381-2. McHugh J at p 405 said that damages for distress or disappointment would be recoverable if there was breach of an express or implied term to provide pleasure or enjoyment or personal protection or if consequent upon the suffering of physical injury or physical inconvenience. These various formulations of the test are all quite similar.

A contract to provide legal services in connection with an application in the Family Court can hardly be described as one to provide enjoyment or relaxation, or indeed freedom from molestation in the sense of freedom from stress, or freedom from the prospect of an adverse outcome. There was no evidence that it was an express term of the contract of retainer in the present case that the first defendant was guaranteeing the plaintiff a successful outcome in any such proceedings, and no such term would be implied in a contract of this nature.

The plaintiff also relied on Heywood v Wellers [1976] QB 446 where a plaintiff recovered damages for mental distress, suffered as a consequence of being molested, from a solicitor who had negligently failed to obtain an injunction to protect the plaintiff from molestation. That in my opinion is a different situation from the present. In that case the plaintiff would have obtained the injunction but for the negligence of the solicitor, and there was a finding that if it had been obtained the mental stress would have been avoided. Clearly in those circumstances the damages were compensating the plaintiff for the very loss from which the contract was intended to provide protection, but that is not the case here.[73]
[73]Another example is Denkewitz v Hodgson (1998) QSC 261 where damages for distress, frustration, anxiety and disappointment were awarded against solicitors who had failed to issue proceedings within time. That is also a different situation. The amount awarded was quite modest, $2,000.

Although the defendant admits that there was a retainer in respect of domestic violence matters as well as the application in the Family Court, all that the first defendant did in respect of that aspect of the retainer was on one occasion have the second defendant appear in the Magistrates Court in relation to some domestic violence proceeding: p 244.[74] There is no evidence that there was anything done or not done by the second defendant on that occasion which had any adverse impact on the plaintiff. By and large insofar as there were proceedings involving domestic violence disputes being carried on at the same time, they were carried on by the plaintiff personally. When asked what more the second defendant could have done to protect the plaintiff from violence and molestation from the husband, counsel for the plaintiff was unable to suggest anything specific: p 331. In so far as the concern was to protect the plaintiff from molestation by the husband, I am not persuaded that the plaintiff has shown that there was any negligence or breach of contract, so there is no question of allowing damages for breach of contract under this heading.
[74]There were disputes about domestic violence in 1993: see Exhibit 36. The plaintiff did not recall that he had appeared for her on such an application, but conceded that it was possible: p.107.

In my opinion the present case is not within the categories identified in Dillon. In the present case if I were persuaded that there was negligence or breach of contract and that the plaintiff had suffered psychiatric injury as a result, damages would have been awarded on the basis of all the damage and stress associated with a psychiatric injury. There would in my opinion be nothing else to be covered by some additional allowance for distress and disappointment. But even apart from any question of any technical restriction on damages of that nature, I am not persuaded in this case that the distress and disappointment suffered by the plaintiff was caused by any negligence or breach of contract on the part of the defendants.

Quantum-precautionary assessment

I should make a precautionary finding in relation to damages, in case it may be determined elsewhere that the plaintiff is entitled to recovery in respect of the psychiatric condition identified by Dr Lichter. I accept the plaintiff has been suffering from an adjustment disorder, although in my opinion that was not a particularly serious psychiatric condition at least until she finished work in about the middle of 1997. She was not forced to give up the earlier work because of the psychiatric condition; rather that employment came to an end because she was no longer needed to fill in for someone who had been on leave. The effect of Dr Lichter’s evidence is that, when the plaintiff ceased to be able to work, her condition deteriorated because she was deprived of that coping mechanism, and I accept Dr Lichter’s evidence that the plaintiff currently is unable to work in the area where she has relevant expertise: p 132. However, he was of the opinion that the plaintiff should be able to return to work in about six to twelve months after the resolution of the proceedings: Exhibit 22. That would mean that she would have been out of work for about six years.

However, the matter is complicated by the fact that he associated the condition as well with her persistent litigation. Although on the theory advanced by the plaintiff some of these would have been unnecessary, such as the proceedings seeking review of the decision of the judicial registrar and the associated applications and appeals in relation to security for costs, there is no reason to think that the dispute over custody would have been avoided, or the other disputes with the husband. The plaintiff would be likely to have had some significant ongoing litigation in any event, and there is a real risk that the plaintiff’s psychiatric condition may have been produced in any event by the stress associated with these, perhaps in conjunction with her thyroid condition. I think that in the present circumstances more than usual discount for the vicissitudes of life should be made in respect of that period.

The plaintiff said that after April 1994 her emotional state had fluctuated: p 43. She felt fortunate that she had work to keep her from focussing on her distress, but while she was still at work she was receiving counselling, and was not functioning at the level she had been before: p 33. The plaintiff said that she had been getting panic attacks (p 53), when she feels terrified and gets chest pain, and she has been using techniques taught her by Dr Lichter to control these: p 54. She is very sensitive and has bouts of depression for which she takes medication, which has produced a drastic improvement: p 58. Before this improvement she had been very tearful and reclusive: p 57. However, according to the reports of Dr Comty the plaintiff had earlier been suffering from panic attacks, possibly associated with her thyroid problems: Exhibit 46. The plaintiff was unable to explain to what extent they had been occurring then: p 158. The plaintiff is still on medication for her thyroid condition, although the particular problem with it has now changed: p 221.

The plaintiff said that she does not function anymore the way she used to (p 60) and she has difficulty in working with people and mixing with people, because she is emotionally vulnerable and this has adversely affected her lifestyle: p 61. When she had been working she had been able to deal with the public, but could not cope with any conflict, and that was a concern to her. More recently she had been told by Dr Lichter that she was not ready to return to work, and she had accepted that and as a result not sought work: p 281. She has considered pursuing further studies: p 206.

During the trial the plaintiff appeared to become upset or flustered at times, and on one occasion a short break was taken while she recovered her composure. In general however, my impression was that she coped very well with a lengthy and fairly gruelling cross-examination. Whether this was a function of the success of the treatment she has received, I cannot say.

The plaintiff was born on 21 September 1952 (Exhibit 42) and is almost 50. Her condition has been significantly improved by both the medication and the treatment received from Dr Lichter, so that after she began to see him in November 1998 her condition would have become significantly better. It was therefore at its worst for about 1½ years. Damages for pain and suffering and loss of amenities in a matter of this nature are necessarily difficult to assess because of the nature of the injury and the lack of precedents. In Hancock (supra) the plaintiff had suffered what seems to me to be significantly worse mental trauma, and had been suffering from chronic post-traumatic stress disorder, which was expected to last for about seven years, and was awarded general damages of $40,000. The Court of Appeal did not regard those damages as manifestly excessive, although it was conceded on behalf of the plaintiff that the amount was towards the upward end of the range of damages at that time: p 605. What emerges from the report of that decision is that that plaintiff was significantly worse off than is the plaintiff in this case.

In Keeys v State of Queensland (Plaint 1544/95, 14/11/96, unreported) I awarded general damages of $15,000 to a police officer who had suffered post-traumatic stress disorder as a result of being very narrowly missed when he had been shot at. In that case the trial occurred about two years after the incident, and I expected that by the time of the trial most of the plaintiff’s suffering was behind him. I think that that plaintiff’s condition would have been worse for a time, but it did not last as long as did the present plaintiff’s. An appeal was brought against that decision; however neither party raised the question of damages.

In all the circumstances, I would assess damages for suffering and loss of amenities at $17,000. I would apportion $15,000 of that to the past, and would allow interest on that sum at 2 per cent.

With regard to economic loss, the plaintiff in Exhibit 17 has calculated her loss by reference to the difference between “net earnings” (gross earnings), and the amount provided in the Nurses Award (Exhibit 20), but the figure that the plaintiff has adopted for the purpose of comparison is the figure for a charge nurse, nursing supervisor or nurse educator (with diploma). It does not appear to me that the plaintiff has ever worked in any of those positions, and there is no reason to think that she would have been working in a position of that nature but for her psychiatric condition. The plaintiff has been working out of the hospital system since July 1982, and I think it really quite unrealistic to expect that she would have moved back into it but for this. There may well have been periods of unemployment, or part time work, anyway. In my opinion the earning level being achieved in the period from July 1991 to June 1995 was the best indication of the sort of income level that the plaintiff would have been likely to be achieving if not for that condition. This is not a case where the plaintiff can show that, but for the psychiatric injury, she would necessarily have been doing a particular job at a particular salary during the whole of the relevant period. What the plaintiff has lost is properly identified as the chance that but for the actionable conduct she would have been in employment and earning income during that period of six years.

The figures suggest an after tax earning level of about $23,000 per annum prior to June 1995. There was therefore no loss for the 1994-95 year, and the loss during the 1995-96 financial year was $2,650. Doing the best I can, I am not persuaded that the loss during the following financial year was any more than $3,000, but I accept that there has been thereafter little or no income apart from social security benefits (which have to be ignored except for the purpose of calculation of interest). Assuming that the income loss continues until June 2003, that produces a loss of income of $143,650.

However, in my opinion for the reasons I have given there needs to be a substantial discount to this amount. In all the circumstances and doing the best I can I would allow $75,000 for economic loss, most of which is attributable to the past. Bearing in mind the amount of social security benefits that the plaintiff has received, it is an appropriate course in this case not to allow any interest in respect of economic loss.

The plaintiff also claimed in respect of medical expenses.[75] The plaintiff paid for counselling from the psychologist, Ms Davis, a total of $225, and I would allow that. The charges of a general practitioner and Dr Lichter were bulk billed to Medicare, and, although that amount would have been refundable if it had been recoverable from the defendants, there is no evidence of what the amount is, so I cannot allow anything for that. The plaintiff also claimed in respect of medical expenses three treatments of “therapeutic massage” in 1999. There is no evidence that that was reasonably necessary medical treatment and I will not allow it. I will allow $98 for Zoloft, but I will not allow Thyroxine because that is a treatment for the thyroid condition (p.221) which was an independent and pre-existing condition. For future expenses, I would allow $800 for another twelve (12) consultations with Dr Lichter, and another $35 for medication.
[75]See Exhibit 24; these and the subsequent claims are set out in Exhibit 25.

The plaintiff also claimed the cost of a wide range of activities under the heading “rehabilitation”. This included “beauty therapy” sessions at the Gold Coast College of TAFE, payment to “School of Philosophy Inc.” in NSW, abseil experience (a half day course), what were described by the plaintiff as therapeutic workshops at the Tracey Saywell studio, but which were referred to on the receipt as sewing lessons, payments for an “Alpha” course which I understand is an introductory bible study course run by some churches, and charges for a health club: Exhibit 24. There is no evidence that any of these things were reasonably necessary by way of treatment or rehabilitation and I will not allow any of them. It seems to me that they were merely recreational activities.

There were also a wide range of expenses claimed under the heading “miscellaneous”. This includes the costs of transcripts of proceedings in the Family Court and for some interlocutory applications in the present case, costs of searches in the titles office and the Supreme Court, bailiff’s service fees for various proceedings and various other expenses apparently associated with this action. Insofar as they relate to expenses properly incurred in respect of the present action they would be recoverable if at all only by way of costs. There is no basis upon which I can relate any of them to subsequent proceedings in the Family Court in respect of the property division dispute. I do not accept that any other legal proceedings could be in any way related to anything the defendants did or did not do. I will not allow any amount for this part of the claim.

The plaintiff also claimed for reimbursement of legal costs, including the costs paid to the first defendant ($12,226.93),[76] and the $5,000 contribution of costs paid to the husband, and other legal costs subsequently paid to other people. If there had been negligence on the part of the defendant which had rendered the legal assistance provided in relation to the property dispute of no value, then that amount would have been recoverable,[77] and if but for the negligence of the defendants the plaintiff would not have been required to make that payment of $5,000, that amount would also have been recoverable, but I am not satisfied that either of these situations has been established. If the matter had been settled in December 1993 or early in 1994, there would have been some costs saved. This amount was not quantified, but I will allow $5,000.
[76]The amounts in Exhibit 25 total $12,226.93, as do the two accounts in evidence, Exhibit 5 (16 August 1993 - $3,103.70) and Exhibit 4 (15 April 1994 - $9,123.23). The claim in Exhibit 52 that the bill totalled $18,000 was not correct, although if the $5,000 contribution is added in, the total is close to that amount.
[77]Cachia v Isaacs (1985) 3 NSWLR 366.

There were fees paid to Philippa Power & Associates, Lawyers, which the plaintiff said related to an application the husband made to obtain a passport after the plaintiff had taken some step which would make it more difficult for him to obtain one: p 209. That had nothing to do with anything the defendants did or did not do. There was a fee of $700 paid to a barrister for an appearance in the Magistrates Court on 4 April 1995 (Exhibit 23) which the plaintiff said was related to domestic violence: p 209. The barrister was instructed by Philippa Power & Associates, hence the fees of that firm in April 1995: Exhibit 23. There were further fees from that firm in relation to a hearing on 4 July 1995 in the Family Court (Exhibit 23) but it is not clear to what that relates. There were fees to C R Smith & Associates of $270, which related to a domestic violence matter: Exhibit 23, p 209. Again, these had nothing to do with anything that flowed from the property dispute. There had been a long history of domestic violence disputes prior to then.

There were a number of consultations with Hutcheons, Solicitors, most of which are identified simply as advice or legal advice, but a couple of the receipts refer to a Family Court matter, and the timing suggests that this might be assistance related to the conduct of the custody dispute. In any case there is no evidence that they are related to anything relevant. In 1998 and 1999 there were various amounts of costs which the plaintiff was ordered to pay to the husband. One of these related to an urgent spousal maintenance application which was unsuccessful (p 208) and that amount would not be recoverable, but amounts of $200 and $500 related to Full Court proceedings, presumably the appeals against the orders for security for costs, which were related to the property division application. Those are the only legal costs on this list which can be so related.

There were a number of fees paid to another barrister in 1999 for a spousal maintenance dispute (Exhibit 23, p 208) and payments to another barrister in 1999 and 2000 and 2001 for other Family Court applications, an interim application on 25 November 1999, a magistrates court summons on 7 April 2000, and a fee to appear in the Family Court on 1 May 2001: Exhibit 23. These were said to relate to attempts to obtain money from the husband’s wages: p 208. They have nothing to do with anything the defendants did or did not do. Also included in this list are some fees paid to counsel who appeared for the plaintiff in the present action, which could only be recoverable as costs of the action, and the payment for Dr Lichter’s medical report which is in the same position, and various other miscellaneous expenses apparently associated with the plaintiff’s conduct of this or other litigation, none of which is recoverable as damages. There is a claim for numerous amounts paid on numerous occasions, starting apparently on 9 March 1994, for telephone, train, petrol, parking, postage and photocopying expenses, but obviously many of them relate to other disputes with the husband, and there is no way I can relate any of them to anything the defendants did or did not do. There were numerous receipts to support this expenditure included in Exhibit 24. That covers all of the amounts claimed in the updated statement of loss and damages: Exhibit 25.

I summarise my precautionary assessment of damages as follows:

(a) general damages $ 17,000

(b) interest on $15,000 at 2% for 5.5 years $ 1,650

(c) economic loss $ 75,000

(d) medical expenses (past) $ 323

(e) Interest at 8% for 6 years $ 155

(f) medical expenses (future) $ 835

(g) additional legal costs to first defendant $ 5,000

(h) costs contribution to husband $ 5,000

(i) additional costs later $ 700

Total - $105,663

Conclusion

For these reasons, the plaintiff’s claim is dismissed with costs.

CITATION:	Luadaka v Dooley & Anor [2002] QDC 224
PARTIES:	DIANE BERYL LUADAKA Plaintiff v MICHELLE DOOLEY First Defendant and PATRICK DOOLEY Second Defendant
FILE NO/S:	Plaint 215 of 1997
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	17 September 2002
DELIVERED AT:	Brisbane
HEARING DATE:	17-20 September 2001
JUDGE:	McGILL DCJ
ORDER:	Judgment for the defendants with costs
CATCHWORDS:	LEGAL PRACTITIONERS – Solicitor and Client – Negligence – whether inappropriate advice about settlement offer – whether case properly conducted in Family Court – whether financial loss proved – whether psychiatric injury proved. Algar v Gall Standfield & Tiley [2000] QSC 85 – followed Baltic Shipping Co v Dillon (1993) 176 CLR 344 – distinguished Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 – cited Dew v Richardson (Writ 4159/97, Chesterman J, 18 August 1999, unreported) – followed Hall v Foong (1995) 65 SASR 281 – followed Hancock v Nominal Defendant [2002] 1 QdR 578 – followed Hanflex Pty Ltd v N S Hope & Associates [1990] 2 QdR 218 – followed Heywood v Wellers [1976] QB 446 – distinguished Jaensch v Coffey (1984) 155 CLR 549 – followed Kennon v Kennon (1997) FLC 92-757 – considered Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384 – applied Tame v New South Wales [2002] HCA 35 – followed Wodrow v Commonwealth of Australia (1993) 45 FCR 52 – followed
COUNSEL:	P E Gorman for the plaintiff I R Perkins for the defendants
SOLICITORS:	Gormans for the plaintiff McLaughlins for the defendants