Manny v David Lardner Lawyers (No 4) - [2024] ACTCA 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Manny v David Lardner Lawyers (No 4)
Citation:	[2024] ACTCA 12
Hearing Date:	16 November 2022
Decision Date:	4 April 2024
Before:	Loukas-Karlsson, McWilliam and O’Sullivan JJ
Decision:	(1) The appeal is dismissed; (2) The appellants are to pay the respondents’ costs of the appeal; (3) Costs are to be assessed on a party-to-party basis unless the respondents apply to the Court otherwise within seven (7) days of the date judgment is entered.
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Whether the primary judge should have recused herself – appellant has not demonstrated a basis for apprehended bias – appellant has not demonstrated a lack of procedural fairness – recusal unnecessary – appeal dismissed APPEAL – CIVIL LAW – Whether rejection of the appellant’s claims in tort, contract, and equity at first instance was correct in law – no error established – primary decision upheld – no breach of duty of care – no economic loss found – advocate immunity applied – no breach of solicitor retainer – no breach of fiduciary obligations – claims precluded by s 153(1) of the Bankruptcy Act 1966 (Cth) – claims not provable in bankruptcy under s 82(2) of the Bankruptcy Act 1966 (Cth) – claims time-barred by s 11(1) of the Limitation Act 1985 (ACT) – respondents were not retained in Family Court proceedings to act for the fifth appellant – appeal dismissed
Legislation Cited:	Bankruptcy Act 1966 (Cth) ss 27(1), 35, 35A, 58(3), 82(1), 82(2), 153(1), 153(4) Civil Law (Wrongs) Act 2002 (ACT) ss 40, 41, 42, 43, 45, 46 Constitution s 75 Court Procedures Act 2004 (ACT) ss 5A, 5A(2) Evidence Act 2011 (ACT) s 41(1)(b) Limitation Act 1985 (ACT) s 11(1) Partnership Act 1963 (ACT) ss 14, 14(2), 16 Supreme Court Act 1933 (ACT) ss 7, 37E
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 Artistic Builders Pty Ltd v Nash [2010] NSWSC 1442 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 Badenach v Calvert [2016] HCA 18; 257 CLR 440 Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; 188 FCR 140 Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 Clark Boyce v Mouat [1994] 1 AC 428 Clifton v Duong [2019] ACTCA 22; 347 FLR 30 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 David v David [2009] NSWCA 8 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fox v Percy [2003] HCA 22; 214 CLR 118 Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66; 374 FLR 1 Hawkins v Clayton (1988) 164 CLR 539 Heydon v NRMA Ltd; Bateman v NRMA Ltd; Morgan v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392 Kendirjian v Lepore [2017] HCA 13; 259 CLR 275 Kioa v West (1985) 159 CLR 550 Lee v Lee [2019] HCA 28; 266 CLR 129 Manny v David Lardner & Associates [2018] ACTSC 159 Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 Manny v Nissen (No 2) [2023] ACTCA 20; 377 FLR 169 Mantonella Pty Ltd v Thompson [2009] QCA 80; 2 Qd R 524 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 Metropolitan Properties Co (FGC) Ltd v Lannon (1969) 1 QB 577 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 P and W v Manny [2010] ACTSC 50 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Rigg v Sheridan [2008] NSWCA 79 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 Rogers v Whittaker (1992) 175 CLR 479 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Thorne v Kennedy [2017] HCA 49; 263 CLR 85 Warren v Coombes (1979) 142 CLR 531 Webb v The Queen (1994) 181 CLR 41
Texts Cited:	Alan R Abadee et al, Professional Liability in Australia (Thomson Reuters, 4^th ed, 2023) JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, (LexisNexis Butterworths, 5^th ed, 2015)
Parties:	Jeff Manny ( First Appellant) Jeff Manny Constructions Pty Ltd ( Second Appellant) JK3L Pty Ltd (Third Appellant) Lonagann Pty Ltd (Fourth Appellant) Landagency Pty Ltd (Fifth Appellant) Ernest David Lardner & Kenneth William Power t/as David Lardner Lawyers (First Respondent) Kenneth William Power (Second Respondent) David Lardner Lawyers Pty Ltd (Third Respondent)
Representation:	Counsel Self-represented ( Appellants) M Walsh SC and J Larkings ( Respondents)
Solicitors Self-represented Boettcher Law ( Respondents)
File Number:	ACTCA 59 of 2021
Decision Under Appeal:	Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 5 November 2021 Case Title: Manny v David Lardner Lawyers (No 2) Citation: [2021] ACTSC 289

LOUKAS-KARLSSON AND O’SULLIVAN JJ:

Introduction

As at 2009 and 2010, the first appellant (Mr Manny) and the second, third and fourth appellants (together known as the Jeff Manny Group or JMG) had a large property portfolio that was heavily geared with the Australia and New Zealand Banking Group Limited (ANZ).
Loan facilities in the total sum of $14,008,000, which had been provided by the ANZ pursuant to a letter of offer from the ANZ (ANZ Facilities) dated 22 June 2009, were due to expire on 17 October 2010. The value of the properties JMG owned, and over which the ANZ had taken security, had dropped significantly and were valued at about $10-$12 million. In total, the ANZ was owed about $17 million. In short, the JMG was in deep financial trouble.
Mr Manny is the sole director, secretary and shareholder of those companies within the JMG group and the fifth appellant.
In late 2009, the JMG defaulted on their loan obligations to the ANZ and the ANZ issued default notices to Mr Manny and the JMG during 2009 and 2010.
Prior to September 2010, the ANZ’s solicitors had written to Mr Manny telling him that the ANZ Facilities would not be renewed or extended upon their expiry on 17 October 2010. On that date, the ANZ Facilities had to be repaid.
Despite numerous notifications that the ANZ Facilities would not be extended and must be re-paid in full on 17 October 2010, the ANZ Facilities were not repaid.
In 2007, Mr Manny’s wife had instituted property proceedings in the Family Court of Australia (the Family Court proceedings). The JMG was joined to those proceedings.
On 5 February 2010, the Family Court made an order restraining Mr Manny from selling or further encumbering the real estate assets owned by the JMG.
The matter proceeded to trial in the Family Court. Faulks DCJ made final orders on 13 July 2010 (which were amended under the slip rule on 14 July 2010) (Final Orders) requiring Mr Manny to pay to Ms Manny the sum of $1,258,000.00 within 14 days, failing which the JMG properties were to be sold in three groups or tranches, identified as group or tranche A, B and C respectively, in a cascading fashion.
After the Final Orders were made by Faulks DCJ, Mr Manny and the JMG retained the respondents to the appeal, who were the first, second and third defendants respectively in the Court below, to act in the Family Court proceedings.
The primary judge referred to the defendants collectively as “DLL”, an acronym we also adopt. In these reasons we refer to the retainer of DLL as the “DLL Retainer”.
Notwithstanding there were three defendants named, the key figure across all three defendants was the third defendant (Mr Ernest David Lardner) who was the solicitor retained by Mr Manny and the JMG. There was an issue at trial as to whether DLL was retained to represent the fifth appellant, Landagency Pty Ltd.
Ultimately, the properties were sold and the JMG appellants wound up.
The appellants claimed against the respondents in breach of contract, breach of fiduciary duty and breach of duty of care. Those claims were dismissed by the primary judge.
It is from that decision that the appellants now appeal.
There are a number of issues arising in this matter. Within each of these issues we identify and deal with a series of sub-issues. The appeal is somewhat unusual in that each of the numerous grounds challenging the primary judge’s findings are predicated on the basis that the primary judge should have recused herself for apprehended bias, prejudice and a failure to provide procedural fairness. Accordingly, the principal issues to be considered by reference to each of the causes of action considered and dismissed by the primary judge are:
(1)Should the primary judge have recused herself on the basis of apprehended bias?;
(2)Did the primary judge demonstrate prejudice?; and
(3)Did the primary judge fail to provide procedural fairness to Mr Manny?
It is for the reasons which follow that the appeal should be dismissed.

Background

There are two separate factual scenarios operating in this matter which overlap to a limited extent. Mr Manny, who appeared in person for himself and on the part of all appellants before this Court, conflated these two factual scenarios. To a large extent, the respondents’ summary of facts also combined the factual scenarios in one summary of facts. It is appropriate to divide the respondent’s summary of facts into two distinct factual scenarios.
The critical point that must be made in relation to the first factual scenario is that irrespective of what was happening in the Family Court, the JMG owned both commercial and residential real estate which was the subject of the ANZ Facilities.
During 2010, the ANZ notified Mr Manny nine times that the ANZ Facilities would not be extended or varied in any manner and that the debts must be repaid in full on or before 17 October 2010. In particular:
(1)By letter dated 21 June 2010, the ANZ’s solicitors advised Mr Manny of a number of events of default including the JMG’s significant outstanding liabilities (including a debt to the Australian Taxation Office) as well as the JMG’s potential insolvency and that should the orders proposed by Faulks DCJ become final, the JMG would be in breach of the ANZ’s Loan-to-Value Ratio (LVR) requirement that the LVR not exceed 65%, reducing to 60%;
(2)On 16 August 2010 and 18 August 2010, the ANZ’s solicitors gave notice to Mr Manny of further default of the ANZ Facilities; and
(3)On 22 September 2010, the ANZ’s solicitors reiterated to Mr Manny the JMG’s defaults and stated again that the ANZ Facilities would expire on 17 October 2010 and not be renewed or extended.
On 17 October 2010, the ANZ Facilities expired. The JMG and Mr Manny had not repaid their debts in full to the ANZ.
On 1 November 2010, the ANZ’s solicitors served further notices of default to Mr Manny and the JMG in relation to their failure to repay the monies owing pursuant to the ANZ Facilities.
Mr Manny tried to refinance with the Bank of Queensland, unsuccessfully. Mr Manny was also unsuccessful in obtaining any other refinance. The result was that the JMG was financially doomed prior to 17 October 2010. On 30 November 2010, the ANZ’s solicitors issued notices of default and demand.
On 22 December 2010, the ANZ appointed rent receivers to the JMG properties and on 21 January 2011 the ANZ appointed receivers for the sale of the JMG’s properties. On 28 February 2011, administrators were appointed to the JMG entities. On 18 April 2011, liquidators were appointed to the JMG entities.
The second factual stream concerns Mr Manny’s proceedings in the Family Court and, in particular, revolves around orders made in the Family Court on 27 August 2010 and 10 October 2010.
Following a trial in the Family Court in 2010, Faulks DCJ made the Final Orders by which Mr Manny was to pay Ms Manny $1,258,000.00 within 14 days, failing which the JMG properties were to be sold in three groups or tranches. The Final Orders allowed the ANZ to exercise its rights of security and allowed Mr Manny to refinance but prevented him or the JMG from incurring extra debt.
On 20 July 2010, Mr Manny instructed DLL to act for him and the JMG in the Family Court proceedings.
Faced with orders requiring Mr Manny to pay Ms Manny $1,258,000.00 within 14 days of the date of the order, Mr Lardner recommended an appeal against the Final Orders. Mr Lardner made an application on 3 August 2010 for an order that the Final Orders be stayed (the stay application). Mr Manny had told Mr Lardner that he and the companies wanted to retain the properties so as to prevent a fire sale.
On 10 August 2010, Mr Manny filed an appeal. Ms Manny cross-appealed.
The appeal referred to valuations of the JMG Properties by CBRE commissioned by the ANZ in June 2010 (CBRE 2010 Valuations). On 15 September 2010, Mr Lardner wrote to Ms Manny’s solicitors identifying the JMG’s asset deficiency of $706,724.00 on the basis of the CBRE 2010 Valuations.
When the stay application came before the Family Court on 27 August 2010, Faulks DCJ stayed the operation of the Final Orders. However, over opposition from Mr McGrath of counsel who appeared for Mr Manny and the JMG on that occasion, his Honour also restrained Mr Manny and the JMG from selling any of the properties.
Mr Manny alleged before the primary judge that he did not instruct Mr Lardner to institute the stay proceedings and did not find out about the stay application until 2016. He alleged that the effect of the restraint imposed by Faulks DCJ, which was not asked for and in fact opposed by Mr McGrath, was such that he could not sell any of the properties and thereby they were sold at a discounted price by the ANZ in enforcing its security over them.
Mr Manny also alleged that he did not instruct Mr Lardner to file an appeal.
On 24 September 2010, DLL filed an appeal against the orders made by Faulks DCJ on 27 August 2010 and an application to expedite that appeal.
On 8 October 2010, Mr Lardner signed an order “by consent” allowing Mr Manny to sell two of the properties the subject of the restraining order made on 27 August 2010. On 10 October 2010, Finn J of the Family Court made those orders.
DLL ceased acting for Mr Manny and the JMG on or about 5 March 2011.
In 2016, each of the JMG companies was deregistered.
Mr Manny commenced the proceedings against the respondents on 25 November 2016, more than 6 years after 10 October 2010.
On 31 May 2018, McWilliam AsJ (as her Honour then was) made orders reinstating each of the JMG companies: Manny v David Lardner & Associates [2018] ACTSC 159.
On 2 April 2019, Mr Manny was granted leave to commence and conduct derivative proceedings on behalf of the JMG, leave to join the JMG and Landagency as plaintiffs to the proceedings on condition that the companies were represented by a solicitor (as well as other conditions), and leave to file an amended statement of claim: Manny v David Lardner & Associates (No 2) [2019] ACTSC 86.
On 30 October 2019, the JMG and Landagency made claims against DLL.
At trial, apart from failing to establish any of the three causes of action alleging breach of retainer, breach of duty of care and breach of fiduciary duty, the primary judge also found that:
(1)DLL was not retained to act for the fifth appellant, Landagency;
(2)The claims by Mr Manny and the JMG failed as being outside the applicable six-year limitation period;
(3)Mr Lardner, who had been declared bankrupt in December 2010, had the benefit of immunity under s 58(3) of the Bankruptcy Act 1966 (Cth); and
(4)Mr Lardner also had the benefit of advocate’s immunity.

The notice of appeal

The appellants’ further amended notice of appeal upon which the appeal proceeded is a prolix document containing some 69 paragraphs and on occasions is difficult to comprehend. It puts a number of the same propositions repeatedly but differently phrased. On the day of the appeal hearing, the appellant provided a two-page document which summarised some but not all of the grounds of appeal.

Grounds of appeal

As we have previously noted, the grounds of appeal, variously put, are each predicated on the primary judge:
(1)Failing to recuse herself on the basis of apprehended bias prior to trial, during the trial, and demonstrated apprehended bias in her Honour’s Reasons: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289;
(2)Prejudice against the appellants; and
(3)Failing to provide procedural fairness to the appellants.
Mr Manny specifically disavowed actual bias as an appeal ground during the appeal. Under those circumstances, it is difficult to see any difference between apprehended bias and “prejudice”. Accordingly, we will consider any contention of prejudice at the same time as we consider apprehended bias.
The primary judge noted the plaintiffs’ causes of action were breach of contract, breach of fiduciary duty and breach of duty of care.
The primary judge made a number of findings of fact and made adverse credibility findings against Mr Manny. None of the findings of fact or credibility are challenged directly. Rather, it is the allegation of apprehended bias, prejudice and/or a lack of procedural fairness which are used in an attempt to overturn her Honour’s findings.

Apprehended bias – principles

In Charisteas v Charisteas [2021] HCA 29; 273 CLR 289, the High Court said at [11]-[13]:
11.… The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, secondly, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merit. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
12.As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
13.Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972:
“The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
(Citations omitted)

In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, Gleeson CJ and McHugh, Gummow and Hayne JJ said at [6]-[8]:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Citations omitted)
Their Honours continued (at [19]):
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
In Webb v The Queen (1994) 181 CLR 41, Deane J said (at 74):
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
(Citations omitted)

Since an allegation of apprehended bias goes to the fundamental principle that a judge must bring an impartial mind to the resolution of the question the judge is required to decide, on an appeal it is a threshold question. So much so is evident from the observations of the Court of Appeal in Clifton v Duong [2019] ACTCA 22; 347 FLR 30 at [32] (Murrell CJ, Burns and Wigney JJ):
When an appellant claims apprehended bias, the appeal court should first deal with that ground and, if the ground is established, the appeal court should remit the matter, regardless of its view about the merits of the decision below: Eastman v DPP (No 13) [2016] ACTCA 65 at [61], citing AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; 34 VR 236 at [18].

The appellant’s grounds

The grounds of appeal are contained in paragraph 5 of the notice of appeal.
It is convenient to consider the grounds by groups, however prior to doing so, some preliminary findings can be made.

Preliminary matters

Grounds 5.1 and 5.2 assert a miscarriage of justice and the judgment being against public confidence and public interest. There are no particulars of these grounds. Rather, they appear to be conclusions arising from the remaining substantive grounds. Neither ground is made out.
Second, a number of the “grounds” are not grounds at all, but statements. In these reasons, we deal with the substantive grounds.
Third, ground 5.6 asserts apprehended bias, prejudice, and a denial of procedural fairness to the appellants before, during and on final judgment arising out of a number of matters which appear to be founded as to 4 of the 5 matters as those categories identified by Deane J in Webb to which we have referred above:
(a)By having “Interest” (Mr Lardner is a lawyer);
(b)“Conduct” of the trial (procedural fairness was not given because the hearing was not a fair hearing);
(c)“Prejudgment” (because Mr Manny “was a Muslim and so-called a terrorist”);
(d)“Association”. It is not entirely clear what the basis for this assertion is, but it seems to be that the primary judge was also a member of the same Court as Gray J. The significance of that is that in P and W v Manny and Anor [2010] ACTSC 50, Gray J made adverse credibility findings against Mr Manny. As we understand the submission, it follows that there was apprehended bias on the part of the primary judge because of that “association”. There is also a reference to “P” being a part-time judge in this Court; and
(e)The primary judge took into account “extraneous information”, being the judgment of Gray J referred to above.
Some of these matters may be disposed of quickly.

Interest

As to the contention of apprehended bias, prejudice and a denial of procedural fairness arising out of “interest” because Mr Lardner, as one of the parties before her Honour, was a lawyer, there is nothing identified by the appellants as to what it is that might be said to lead the primary judge to decide the case other than on its legal and factual merits. That being the case, there is no “logical connection” between that matter and the feared departure from the judge deciding the case on its merits: Charisteas at [11], Ebner at [6], [8]. This contention is without foundation and should not have been made. This aspect of ground 5.6 and all other grounds where it is raised, fails.

Prejudgment

So too, the contention of prejudgment on the basis Mr Manny “was a Muslim and so called a terrorist” has no foundation and is therefore baseless. This contention fails.

Association

The contention that the primary judge displayed apprehended bias on the basis of an association between her Honour, Gray J and “P”, who the appellants contend was a part-time judge in the ACT courts, is completely unsubstantiated. It is a serious and offensive allegation that should not have been made. This contention is ground 5.6 and all other grounds where it is raised fails.

Extraneous information

The appellants contend apprehended bias, prejudice and a lack of procedural fairness on the part of the primary judge because of adverse credibility findings against Mr Manny made by Gray J in P and W. The appellants make no attempt to identify any facts or reasons sufficient to satisfy the first or second tests in Charisteas, nor do they identify prejudice, nor a lack of procedural fairness. Once again, this serious allegation should not have been made. This aspect of ground 5.6 and all other grounds where it is raised fails.

Other Grounds

In this section of these reasons, we deal with the remaining substantive grounds that assert apprehended bias, prejudice and/or a denial of procedural fairness for a particular reason, noting that the assertions of “Interest”, “Prejudgment”, “Association” and “Extraneous information” have no merit and fail at the outset. We also deal with whether the other complaints which are made about various findings are made out.

Conduct prior to trial (grounds 5.6, 5.7-5.12)

The appellants assert the primary judge did not disqualify herself prior to the final hearing notwithstanding her Honour’s “Interest”, “Prejudgment”, “Association” and “Extraneous information”. We have dealt with each of those assertions above. None of them succeed.
At grounds 5.8, 5.10-5.12, the appellants assert that the primary judge misused her power, presumably as Chief Justice, to take over the final hearing when McWilliam AsJ had the conduct of the matter prior to that time.
There is no basis for this contention. The primary judge did not “take over” the final hearing. Her Honour heard the matter from opening to closing and delivered judgment. No application was made prior to, during, or after closing submissions for the primary judge to disqualify herself nor was there any apparent reason for her Honour to do so.
To contend that any judge, far less a Chief Justice, has misused their power to “take over a hearing” in circumstances where it appears her Honour has allocated the matter to herself (one assumes as part of the ordinary processes of the Court) and in circumstances where the subtext is that that power was exercised for an improper purpose is an extremely serious allegation. There is absolutely no basis upon which such a contention could or should be made and it reflects poorly on the appellants to have made such a contention. Once again, it should not have been made. Ground 5.8 fails.
Ground 5.9 refers to s 5A of the “Court Procedures Rules 2004” and the primary judge’s failure to not apply that provision to disqualify herself.
Section 5A of the Court Procedures Act 2004 (ACT) provides:
5AMain purpose of civil procedure provisions
(1)The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the main purpose includes the following objectives:
(a)the just resolution of the real issues in civil proceedings;
(b)the efficient use of the judicial and administrative resources available for the purposes of the court;
(c)the efficient disposal of a court’s overall caseload;
(d)the timely disposal of civil proceedings;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them (including the power to make rules) must be exercised or carried out, in the way that best promotes the main purpose.
(4)The parties to a civil proceeding must help the court to achieve the objectives.
(5)In this section:
civil procedure provisions means—
(a)the rules made under section 7, in their application to civil proceedings; and
(b)any provision of this Act in relation to the practice and procedure of a court in civil proceedings.
court includes a tribunal that is a prescribed tribunal under section 6.
The appellants do not identify how it is that the primary judge failed to apply that provision.
The appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds.
These grounds fail.

Conduct during the hearing (grounds 5.6, 5.13-5.15)

Ground 5.13 contends that the primary judge demonstrated apprehended bias, prejudice and denied the appellants procedural fairness by allowing the respondents to cross-examine the appellants on documents not contained in affidavits filed in the Court.
The appellants do not point to any objection taken by their counsel to such cross-examination during the course the trial.
The respondents submitted that documents put to Mr Manny during his cross-examination had been disclosed by the appellants themselves or had been disclosed by non-parties which included affidavits affirmed by Mr Manny in the Family Court proceedings.
The respondents submitted, and we accept, that there is no prohibition on cross-examining a witness on documents that were not annexed to or exhibited to an affidavit. No bias, whether apprehended or actual, per se, arises from a judge allowing such cross-examination. As to procedural unfairness, each case will depend on its particular circumstances. If a document has not been disclosed at all, that might raise procedural fairness considerations which may result in a judge taking particular steps to alleviate any potential unfairness. Ultimately, the question of what steps a judge may or may not take will, in general terms, be determined by whether the documents on which cross-examination is being conducted are relevant, the extent of any prejudice that may result in the circumstances and how the prejudice can be addressed, if at all.
The respondents submitted that documents the subject of cross-examination by the respondents’ counsel were relevant to issues for determination but predated the DLL Retainer, such that they were not able to be proved by the respondents’ oral or affidavit evidence. There is no suggestion by the appellants that that was not the case nor is any prejudice identified, particularly in circumstances where no objection was taken by the appellants’ counsel during the course of the trial.
The appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds.
This ground fails.
Ground 5.14 contends that the primary judge erred in not applying “some sympathy to the Appellants” that their senior counsel was seriously ill at the final hearing and subsequently passed away. As we understand the ground, it is that the counsel’s illness enabled the respondent to take the appellants by surprise by cross-examining on documents.
The respondents submit that the assertion is unsustainable for two reasons. First, the appellants were represented at trial by two counsels. Second, the primary judge adjourned the trial to permit the appellants’ junior counsel to prepare for re-examination of the appellants’ witnesses, including the appellants’ expert witness.
We accept the respondents’ submissions that the appellants’ contentions are unsustainable. It is abundantly clear that the primary judge was aware of the counsel’s illness and made an appropriate accommodation to the appellants’ junior counsel in those circumstances.
The appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, nor that her Honour failed to afford procedural fairness to the appellants.
This ground fails.
In ground 5.15, the appellants contend that the primary judge did not let Mr Manny cross-examine Mr Lardner. The circumstances were that at the conclusion of the cross-examination by the appellants’ junior counsel, Mr Manny made his own application to cross-examine Mr Lardner. The primary judge refused the application and provided reasons for doing so.
The primary judge’s reasons for refusing leave to Mr Manny to cross-examine Mr Lardner are cogent and well-reasoned. The appellants identify no error in her Honour’s ruling.
The appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds.
This ground fails.

Grounds 5.16 – 5.19

These grounds deal with advocate’s immunity, limitation, and the bankruptcy of Mr Lardner. We deal with these grounds later in these reasons.

Credibility (grounds 5.61 and 5.63)

The primary judge specifically addressed the question of the credibility of Mr Manny and Mr Lardner. The appellants challenge the primary judge’s findings as to credibility, asserting apprehended bias, prejudice and a denial of procedural fairness by her Honour’s findings at [45]-[47] that Mr Lardner was a credible witness.
In so doing, the appellants referred to a passage from her Honour’s ruling in which her Honour refused permission for Mr Manny to cross-examine Mr Lardner after the appellants’ junior counsel had concluded her cross-examination.
Her Honour considered Mr Lardner to be a very reliable witness who presented as an intelligent, sensible, and composed witness.
To the extent the passages relied upon by the appellants are directed at Mr Lardner’s memory, the primary judge specifically dealt with that aspect when considering Mr Lardner’s credibility: Reasons at [45]-[47].
Further, the passages to which the appellants referred in their written submissions demonstrate that the primary judge was acutely aware of the fallibility of memory particularly with the passage of time and took that into account.
As the primary judge had the benefit of seeing and assessing the credit of Mr Lardner, in order to overturn the primary judge’s findings on credibility and those findings where her Honour accepted Mr Lardner’s evidence, the appellants need to show that her Honour’s findings were glaringly improbable or contrary to compelling inferences: Warren v Coombes (1979) 142 CLR 531 at 552 (Gibbs ACJ, Jacobs and Murphy JJ), Fox v Percy [2003] HCA 22; 214 CLR 118 at 128 [29] (Gleeson CJ, Gummow and Kirby JJ), Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at 686-87 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
The appellants have failed to establish that the primary judge’s assessment of Mr Lardner’s credibility, her Honour’s acceptance of Mr Lardner’s evidence and the consequent findings were glaringly improbable or contrary to compelling inferences.
As to Mr Manny’s credibility, her Honour considered that although not satisfied Mr Manny was deliberately dishonest, at the very least his recollection of relevant events a decade ago was fundamentally flawed and that he had reconstructed reality: Reasons [40]. At Reasons [42]-[44], the primary judge identified examples of many contemporaneous documents that compelled the conclusion that Mr Manny’s memory of important events was fundamentally wrong and that he engaged in self-serving reconstruction of reality.

The appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds.
The appellants’ challenge to her Honour’s credibility findings fails.

No breach of duty of care (grounds 5.20 – 5.54)

The primary judge found there was no breach of duty of care on the part of DLL. Many of the grounds in this part of the notice of appeal simply express disagreement with the primary judge’s findings. The appellants’ written submissions contend the primary judge erred in making a number of factual findings whilst the grounds of appeal on this topic assert apprehended bias, prejudice and a denial of procedural fairness.
On the issue of whether the primary judge erred in making factual findings, we have set out the well-known principles enunciated in Warren v Coombes, Fox v Percy and Robinson Helicopter Co above. Those principles are applicable to these grounds of appeal.
The primary judge carried out an extensive analysis of the dealings between Mr Manny and DLL. Her Honour set out her findings on important disputed facts (Reasons at [322]-[357]) and was careful to provide reasons for her findings. The appellants’ challenges to those findings may be described as no more than general disagreement.
Her Honour dealt with the DLL Retainer: Reasons at [360]-[367]. Having correctly identified that a solicitor owes a duty to their client in both contract (under the retainer) and in tort, the primary judge also observed that the scope of the duty in tort will usually be set by the terms of the retainer: Hawkins v Clayton (1988) 164 CLR 539 at 544-545 (Mason CJ and Wilson J).
The primary judge was also correct to identify that the terms of the retainer also inform the fiduciary relationship between the solicitor and the client. In cases where the contract provides a foundation for a fiduciary relationship, it is the contract that regulates the basic rights and liabilities of the parties such that the fiduciary relationship, if it is to exist, must accommodate the terms of the contract so that it is consistent with and conforms to them. The fiduciary relationship cannot alter the operation a contract was intended to have according to its true construction: Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 97 (Mason J), John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [91]-[92], see also JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, (LexisNexis Butterworths, 5^th ed, 2015) [5-010].
Further, the terms of the contract are not just those expressed but also implied: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352-355 (Mason J, as his Honour then was).
The primary judge found that the appellants had not discharged the onus of proving the terms of the DLL Retainer as pleaded, which was that DLL was retained in relation to a costs application, a “slip rule” application, and an application to extend the time within which to pay the judgment sum due to Ms Manny.
The primary judge addressed the content of the DLL Retainer between the appellants and DLL, finding that (Reasons at [366]-[367]):
366. … on 20 July 2010, Mr Lardner correctly advised Mr Manny that the “slip rule” was inapplicable, that an appeal was the only real option, and that, pending any appeal, Mr Manny should seek a stay of the final orders to prevent enforcement. Mr Manny accepted that advice.
367.Mr Manny instructed DLL to do what was necessary to achieve payment to Ms Manny of a sum less than $1.258M over a longer period than 14 days with a view to salvaging at least part of the JMG property empire, including by filing an appeal and making a stay application, if necessary and appropriate. That was the basis upon which DLL was retained.
That is an important finding because it informs the scope of not just the contractual and tortious duties, but any fiduciary duty.
Having found the scope of the retainer, the primary judge then addressed the duty to exercise reasonable care and skill: Reasons at [368]-[373]. Her Honour found, correctly with respect, a duty on a solicitor to exercise reasonable care and skill in the provision of the legal services the subject of the retainer and that a solicitor’s obligations in contract and tort, whilst concurrent, are not necessarily co-extensive.
It is clear from her Honour’s reasons that the primary judge was conscious that in particular circumstances the content of a duty of care may extend beyond the legal services the subject of the DLL Retainer to providing advice or taking additional or positive steps beyond the scope of the retainer although there are different views about that: Badenach v Calvert [2016] HCA 18; 257 CLR 440 at [57] (Gageler J).
In any event, as to the required standard of care, the primary judge identified the standard of care and skill as being that expected of an ordinary skilled person exercising and professing to have that special skill, in this case the skill of an experienced family law practitioner: Badenach at [57] (Gageler J); Rogers v Whittaker (1992) 175 CLR 479, 483 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).
The primary judge also referred to the fact that these common law principles are to be understood in the context that in the case at bar, the appellants’ claims engaged the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act).
Grounds 5.21-5.22, 5.24-5.27, 5.36-5.39, 5.40-5.43, 5.45-5.48, 5.54-5.55, 5.58-5.60 assert error on the part of the primary judge in not finding the respondents negligent.
Ground 5.21 refers to negligence by the respondents in acting for the appellants on 3 August 2010 in the Family Court proceedings. That was the date the respondents filed the stay application. Mr Manny asserted that he gave no instructions for that to occur. The primary judge dealt specifically with that issue at paragraphs [185]-[190], [334]-[339], [342]-[351], and [353]-[356] of the Reasons in which her Honour accepted Mr Lardner’s evidence that Mr Manny instructed him to make a stay application in association with the filing of an appeal, instructed him to brief Mr McGrath of counsel on the stay application, and instructed him as to the facts to be included in the affidavit of Mr Lardner sworn 30 July 2010 in support of the application. Her Honour observed that Mr Lardner’s evidence was consistent with the contents of the affidavit made on 30 July 2010, invoices sent to Mr Manny on 6 August 2010, and common sense.
The appellants pointed to no material upon which her Honour’s findings in those sections of the Reasons identified may be impugned, nor can it be concluded that her Honour’s findings were not open on the evidence.
The primary judge also dealt with the general question of whether there was a breach of duty of care in relation to the making of the stay application, the filing of an appeal, and the orders made on 27 August 2010 and 10 October 2010: Reasons at [374]-[393].
The primary judge rejected the appellants’ assertion that Mr Lardner had consented to orders made on 27 August 2010 and 10 October 2010 without instructions and had filed an appeal and related stay application without instructions.
Having considered the relevant provisions of the Wrongs Act, the case advanced by the appellants and having regard to the scope of the retainer as established by the evidence, the primary judge concluded there was no negligence associated with the filing of the stay application, the notice of appeal against the Final Orders, or in relation to the orders made on 27 August 2010 and 10 October 2010.
Grounds 5.26 and 5.27 assert negligence on the part of the respondent by the failure to diligently prosecute the appeal without delay on 8 December 2010 in the Family Court. It is a curious ground in the sense that the appellants contend they did not instruct DLL to institute an appeal against the Final Orders. In any event, the primary judge made reference to the adjournment of the appeal at paragraph [266] of the Reasons which records the reason for the adjournment as being a delay on the part of the company preparing the appeal books relating to the appeal and at paragraph [357] of the Reasons where her Honour notes that ultimately the appeal against the Final Orders was settled in a manner that was very favourable to Mr Manny.
It is not clear why the appellants submitted that DLL was negligent under these circumstances. On the basis of the primary judge’s findings, clearly they were not.
The primary judge’s findings on the issue of breach of duty of care were open on the evidence such that grounds of appeal 5.21-5.22, 5.24-5.27, 5.36-5.39, 5.40-5.43, 5.45-8, 5.54-5.55, and 5.58-5.60 fail.
For completeness, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Breach of retainer

The primary judge considered in detail the appellants’ case of negligence. As a part of that process, her Honour identified the scope of the DLL Retainer at paragraphs [360]-[367] of the Reasons. It was in that context that the primary judge found no breach of duty of care. So too, the primary judge found the appellants had failed to establish that DLL had breached its Retainer.
The appellants’ contention that the primary judge erred in not finding a breach of retainer fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, or that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Breach of fiduciary duty

It is for the same reasons that the primary judge did not err in finding that the appellants had failed to establish a breach of duty of care or breach of retainer that her Honour did not err in finding that the appellants had failed to establish that DLL had breached its fiduciary duty.
The appellants’ contention that the primary judge erred in not finding a breach of fiduciary duty fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice or that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Financial difficulties (grounds, 5.29, 5.30, 5.31, 5.32, 5.34, 5.35, 5.44, 5.49 and 5.52)

These grounds raise issues concerning the actions of the ANZ and are relevant to the issue of causation.
It is this topic which is the subject of the first factual stream to which we have referred. Put another way, irrespective of what Mr Lardner was doing for Mr Manny and the JMG in the Family Court, the JMG were faced with significant financial difficulties in 2009 and 2010 such that nothing the respondents did impacted upon what was inevitable, namely, the ANZ enforcing its security against the JMG properties.
The primary judge gave detailed consideration to the financial status of the JMG and what was happening with the various properties: Reasons at [48]-[140], [163]-[184], [195]-[202], [237]-[293], [301]-[321]. It is abundantly clear on the evidence before her Honour that Mr Manny failed to obtain the necessary refinancing to avoid the ANZ from enforcing its security against the JMG properties.
In particular, although there was evidence that the Bank of Queensland had provided an “indicative letter” dated 28 July 2010 and that the appellants contended that letter “was viable and could have led to lending approval”, the primary judge did not accept that contention.
In rejecting that contention, the primary judge engaged in a careful and detailed analysis of the evidence and in particular, the evidence of the appellants’ expert witness, Mr Ringuet, as to whether the Bank of Queensland could have provided refinancing.
The primary judge observed that Mr Ringuet’s report was based on unreliable or inaccurate information and that he had not been provided with valuations undertaken by CBRE between June and August 2010: Reasons at [301]-[321]. Her Honour concluded that Mr Ringuet’s evidence concerning the required LVR established that in 2010, the Bank of Queensland would not have refinanced the JMG given that the then LVR was almost 100% and that would have precluded refinancing by any reputable lender. Further factors militating against a refinancing were Mr Manny’s failure to fully disclose relevant assets and liabilities and history of defaulting on the ANZ Facilities.
It is on that basis that the respondents submitted that DLL did not cause the appellants’ economic loss. That submission should be accepted and these grounds of appeal fail.
To the extent the appellants’ grounds include assertions that the primary judge should have recused herself on the basis of apprehended bias, prejudice, and that her Honour failed to afford procedural fairness to the appellants, the appellants have not established any of those assertions in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Advocate’s immunity (ground 5.16)

This ground contends that the primary judge erred at paragraphs [414] and [448] of the Reasons in finding that advocate’s immunity applied to the conduct of Mr Lardner on 27 August 2010.
In Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 at [2]-[3] (French CJ, Kiefel, Bell, Gageler and Keane JJ) the High Court described advocate’s immunity in the following terms:
2. In D'Orta‑Ekenaike v Victoria Legal Aid, this Court held that the advocate's immunity from suit under the common law of Australia in respect of his or her participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in court. In reaching that conclusion, the Court declined to reconsider its earlier decision in Giannarelli v Wraith, in which it was held that the advocate's immunity extends to "work done out of court which leads to a decision affecting the conduct of the case in court." That extension of the scope of the immunity was justified by the view that, as Mason CJ said: "it would be artificial in the extreme to draw the line at the courtroom door." But the immunity was not extended to all work in any way connected to litigation. Mason CJ explained:
"Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said:
'… the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.'"
3.This statement of the scope of the immunity by Mason CJ was confirmed in D'Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity:
"there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or … 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way.)"
(Citations omitted)
The plurality in the High Court stated the conclusion that the immunity did not extend to negligent advice which leads to the settlement of a claim in civil proceedings before continuing at [46]:
Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the "intimate connection" between the advocate's work and "the conduct of the case in court" must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an "intimate connection" between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate's work and the client's loss; rather, it is concerned only with work by the advocate that bears upon the judge's determination of the case.
See also Kendirjian v Lepore [2017] HCA 13; 259 CLR 275 at [31] (Edelman J).
The proceedings for which the claim for advocate’s immunity is made does not concern a compromise. It will be remembered that on 27 August 2010, an application for a stay of Faulks DCJ’s orders made 14 July 2010 was heard. Against Mr McGrath’s submissions, Faulks DCJ stayed the Final Orders and imposed a restraining order that no property was to be sold.
The appellants put forward a number of contentions as to why advocate’s immunity did not apply to Mr Lardner.
The first was that the application for a stay was made without instructions. Her Honour did not accept Mr Manny’s evidence and did not accept that the application was made without instructions. This contention fails.
The second is that advocate’s immunity did not extend to Mr Lardner because he took instructions on the orders Faulks DCJ proposed to make outside court.
It is difficult to see why this is a basis upon which advocate’s immunity does not apply. Neither Mr Lardner nor Mr McGrath consented to the orders Faulks DCJ proposed to make and it is apparent that Mr McGrath faithfully put his instructions as conveyed to him by Mr Lardner. This contention fails.
The third is that Mr Lardner is a family law specialist and he is not exonerated from his responsibilities to advise the appellants independently of counsel. We do not understand that contention. If it is intended to suggest that Mr Lardner should have advised independently of Mr McGrath on 27 August 2010, that presupposes that Mr McGrath did not follow his instructions as conveyed to him either by Mr Manny or through Mr Lardner, which is contrary to the primary judge’s findings. Alternatively, if it is suggested that Mr Lardner should not have followed Mr Manny’s instructions or passed them on to Mr McGrath, that is utterly without merit. As a further alternative, if it is suggested that Mr Lardner should have advised not to bring a stay application, again, that is utterly without merit. In any event, for the same reasons given above, it is apparent that Mr McGrath of counsel faithfully put his instructions as conveyed to him by Mr Lardner but that, notwithstanding those instructions, Faulks DCJ made a restraining order that no property was to be sold.
Yet another variant is that Mr Lardner and/or Mr McGrath were negligent in advising to appeal and apply for a stay order. The primary judge expressly found that the advice to institute an appeal and to apply for a stay of the Final Orders was not negligent. Accordingly, these contentions fail.
The fourth is that the appellants submit that McWilliam AsJ had found previously that advocate’s immunity would not apply to the respondents in relation to the orders made on 27 August 2010. That finding is said by the appellants to be contained in her Honour’s judgment delivered 31 May 2018 in relation to whether the second, third and fourth appellants should be reinstated so as to enable them to bring proceedings: Manny v David Lardner & Associates [2018] ACTSC 159. That is wrong. At [32] of the judgment, her Honour did no more than postulate that it was arguable that advocate’s immunity from suit did not apply to the type of conduct likely to be in question in the future action of the type contemplated in respect of the companies.

Further, in the course of the appeal, McWilliam J (wrongly referred to in the transcript as Loukas-Karlsson J) observed that the postulated future action which formed the basis upon which her Honour had ordered reinstatement of the companies was not advanced by the appellants’ counsel before the primary judge.
The respondents submitted that not only did McWilliam AsJ not find that advocate’s immunity from suit did not apply, the suggestion that McWilliam AsJ had made such a finding was not raised before the primary judge and it should not be entertained now.
There is no reason why the contention that McWilliam AsJ had apparently found that advocate’s immunity from suit did not apply should not have been raised before the primary judge. That said, it is a matter which this Court can deal with easily on the basis that the contention is, as a matter of fact, wrong. Accordingly, we do not accept that McWilliam AsJ had found previously that advocate’s immunity would not apply to the respondents. Still further, we note that in circumstances where McWilliam AsJ had postulated the argument in the course of an interlocutory judgment without the benefit of full argument on the issue, it is untenable to suggest that her Honour had made such a finding. The contention is without foundation.
In circumstances where:
(a)The primary judge had found that Mr Manny instructed Mr Lardner to make the stay application on Mr Lardner’s advice;
(b)That the advice was given properly and not in breach of duty of care; and
(c)The restraining orders proposed by Faulks DCJ were opposed by counsel, at the very least on instructions from Mr Lardner if not directly from Mr Manny
the factual substrate upon which the issue of advocate’s immunity is said to be based does not arise. That is because both Mr Lardner and counsel embarked upon a course which, as the primary judge found, was an entirely appropriate course to take in the circumstances. Nonetheless, the primary judge dealt with the contention. On the assumption that, notwithstanding the factual substrate as found by her Honour, an issue as to advocate’s immunity arose, her Honour did not err in finding the immunity applied.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Mr Lardner’s Bankruptcy (grounds 5.19, 5.53)

Mr Lardner was declared Bankrupt on 7 December 2010 and discharged from Bankruptcy on 8 December 2013. The primary judge found that any claim against Mr Lardner was precluded by s 153(1) of the Bankruptcy Act1966 (Cth). That section provides:
(1)Subject to this section, where a bankrupt is discharged from a bankruptcy, the discharge operates to release him or her from all debts (including secured debts) provable in the bankruptcy, whether or not, in the case of a secured debt, the secured creditor has surrendered his or her security for the benefit of creditors generally.
The appellants submitted that:
(a)The alleged wrongful acts/breaches occurred during the period 3 August 2010 until 7 December 2010 when Mr Lardner was practising as a legal practitioner in partnership with Mr Power trading as David Lardner Lawyers;
(b)The actual harm occurred on 21 January 2011 or at the earliest on 23 December 2010;
(c)Section 14(2) of the Partnership Act 1963 (ACT) operates such that the partnership is liable for the loss to the same extent as the relevant partner;
(d)Section 16 of the Partnership Act provides that each partner in the firm is liable jointly with the other partners for everything for which the firm becomes liable under s 14 of the Partnership Act;
(e)Mr Lardner was declared bankrupt on 7 December 2010. The appellants refer to s 58(3) of the Bankruptcy Act;
(f)The partnership trading as David Lardner Lawyers dissolved upon Mr Lardner becoming declared bankrupt;
(g)On 31 January 2011, David Lardner Lawyers Pty Ltd was incorporated with Mr Power as the sole director, secretary and shareholder;
(h)Mr Lardner was discharged from bankruptcy on 8 December 2013;
(i)The discharge of a bankrupt “does not release from any liability a person who, at the date on which the bankrupt became a bankrupt, was a partner with the bankrupt”: s 153(4) of the Bankruptcy Act; and
(j)If leave is required, the appellant seeks leave to commence the proceedings in respect of the provable debt from 26 November 2016.
The appellants also seek a declaration the relevant insurer is liable and obliged to indemnify the partnership known as David Lardner Lawyers.
In their submissions, the appellants conflated the fundamental distinction between a cause of action with liability arising out of a cause of action.
The primary judge noted the appellants’ pleaded causes of action in contract, breach of fiduciary duty and negligence and identified the issue as whether the claims were debts provable in Mr Lardner’s bankruptcy.
Her Honour referred to s 82(1) of the Bankruptcy Act, which sets out those debts which are provable in bankruptcy, and to s 82(2) which provides:
(2)Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.
The primary judge considered the claim that Mr Lardner had breached the DLL Retainer was clearly a claim by reason of a contract and the claim for a breach of the tortious duty of care arose by reason of the Retainer. Accordingly, Her Honour considered both those claims were precluded by s 153(1) of the Bankruptcy Act.
So too, is the claim of a breach of fiduciary duty a claim “by reason of” a contract or breach of trust such that it is provable in bankruptcy: Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 136-137 (Brennan CJ, Gaudron and McHugh JJ).
Her Honour concluded, again with respect correctly, that none of the appellants’ claims fall within s 82(2) and each is a debt provable in Mr Lardner’s bankruptcy such that the proceedings are precluded by s 153(1) of the Bankruptcy Act.
Since each of the appellants’ claims are in respect of a provable debt, the appellants required leave to proceed against Mr Lardner pursuant to s 58(3) of the Bankruptcy Act. Except for the High Court in exercise of its power under s 75 of the Constitution or the Federal Circuit and Family Court of Australia (Division 1) in exercising power under ss 35 and 35A of the Bankruptcy Act, only the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) have jurisdiction in bankruptcy: Bankruptcy Act s 27(1). Even were it disposed to grant leave, which it is not, this Court does not have jurisdiction to grant leave.
It is for these reasons that this ground fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Limitation period (grounds 5.17-5.18, 5.51, 5.52)

These grounds contend that the primary judge erred in holding that the appellants’ claims were brought outside of the limitation period and that her Honour made this finding contrary to the findings of McWilliam AsJ on 23 May 2018.
The appellants submit that the primary judge erred at paragraph [425] of the Reasons in finding that the loss and damage occurred when the restraining orders were made on 27 August 2010 and 10 October 2010 thereby preventing them from selling their asset portfolio. The appellants submitted before the primary judge that the loss occurred when rent receivers were appointed on 23 December 2010 or receivers and managers appointed on 21 January 2011. In their written submissions on appeal, the appellant submitted that the losses which were incurred materialised as from 23 December 2010.
The respondents point to the appellants’ pleading that the claim for breach of contract, breach of duty of care and breach of fiduciary duty arose from DLL’s alleged default in relation to the orders made on 27 August 2010 and 10 October 2010.
The respondents also pointed to the appellants’ pleading that:
(a)Mr Manny suffered loss in the nature of a loss of opportunity of selling his asset portfolio which led to the ANZ appointing receivers thereby causing significant losses to Mr Manny;
(b)Each of the corporate appellants suffered loss because of the restraining orders which prevented each company from selling or disposing of the asset portfolio; and
(c)Each of the appellants suffered losses of income because of the orders made on 27 August 2010 and 10 October 2010.
The respondents submitted that the appellants’ pleaded causes of action were complete upon the orders of 27 August 2010 and 10 October 2010 being made because it was at that point the appellants suffered the pleaded losses. That is so because those losses constitute harm for the purposes of s 40 of the Wrongs Act or loss or damage at common law. The respondents submitted the suffering of those losses is to be contrasted with the quantification of those losses. We accept that submission.
The primary judge determined the question of when the causes of action first accrued by reference to the definition of “harm” within the meaning of s 40 of the Wrongs Act, or damage at common law. Her Honour held that but for the fact that the restraining orders were made on 27 August 2010, the properties could have been listed for sale on 28 July 2010 with subsequent properties for sale at any time. Accordingly, her Honour held that any loss of opportunity first occurred on 27 August 2010. The primary judge was correct to do so.
Since Mr Manny commenced the proceedings on 25 November 2016 and the corporate plaintiffs were added to the proceedings on April 2019, the actions were commenced after the six-year limitation period prescribed by s 11(1) of the Limitation Act 1985 (ACT) which provides:
11General
(1)Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
…
No error has been shown on the part of her Honour in holding that the actions are not maintainable as they were bought after the expiry of the limitation period.
As to the contention that McWilliam AsJ found on 23 May 2018 that the appellants brought their action against the respondents before the expiry of limitation period, her Honour made no such finding. In Manny v David Lardner & Associates [2018] ACTSC 159, her Honour observed at [62] that one of the conditions that may be appropriate to impose on the corporate appellants if they were reinstated was that the first respondent retained the ability to raise any defences to the litigation such as the expiry of any limitation period.
This ground of appeal fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

The respondents were not retained to act for the fifth appellant, Landagency Pty Ltd (grounds 5.56-5.57)

The primary judge found at paragraphs [358]-[359] of the Reasons that Landagency was not a party to the Family Court proceedings for which Mr Lardner was retained such that DLL did not act for it.
The appellants submitted that the primary judge erred at paragraph [358] of the Reasons and overruled a finding by McWilliam AsJ that Landagency was a party to the proceedings.
That submission cannot be accepted. The fact that Landagency is a party to these proceedings does not mean that DLL acted for it in the Family Court proceedings.
No error has been demonstrated on the part of the primary judge and accordingly, this ground fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Other grounds (grounds 5.64 and 5.65)

Ground 5.64 contends errors in fact and law in the primary judge’s summary of conclusions set out in paragraphs [445]-[453] of the Reasons. To that extent, it is a general ground with no detail other than that which appears to be set out in the remaining grounds of appeal.
Ground 5.65 contends that errors or contradictions exist in every paragraph of the judgment.
We have dealt with the substantive grounds above. There is nothing in either of these two grounds that demonstrate error on the part of the primary judge.
These two grounds fail.

Conclusion

The appellants have failed to make out any of their grounds of appeal such that the appeal should be dismissed.
There is no reason why the appellants should not pay the respondents’ costs of and incidental to the appeal.
Unless the respondents apply to the Court for an order as to costs on a basis other than party-party costs within seven days of the date judgment was entered, there will be an order that the appellants pay the respondents’ costs of and incidental to the appeal on a party-party basis.

McWILLIAM J:

I have had the benefit of reading, in draft form, the judgment of Loukas-Karlsson and O’Sullivan JJ. I agree that the appeal should be dismissed but will express my own reasons for that conclusion.
This case concerned Mr Manny seeking redress on behalf of himself and four companies, collectively known as the Jeff Manny Group (JMG), in negligence, breach of contract and equity (breach of fiduciary duty). The plaintiffs had sued their former solicitors, the defendants, who were retained by both Mr Manny and the JMG from 20 July 2010 until about 24 March 2011. For convenience, the three defendants will be referred to collectively as David Lardner Lawyers or “DLL”.
The plaintiffs were unsuccessful, with Murrell CJ (primary judge) finding that none of the causes of action were made out and entering judgment for the defendants: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 (primary judgment).

Appeal grounds

The notice of appeal was prepared by Mr Manny as a self-represented litigant, acting (with leave) on behalf of the companies. At the front of almost every ground of the unduly prolix and repetitive notice are complaints of apprehended bias and a denial of procedural fairness.
The two primary issues on the appeal are therefore:
(1)Whether there was any apprehended bias (Issue 1); and
(2)Whether there was any denial of procedural fairness (Issue 2).
However, when the attempt at legalese is stripped back from the document, the appellants’ substantive complaint is that the primary judge erred in rejecting the plaintiffs’ claims in respect of each cause of action.
Given the nature of the formal notice of appeal and the appellants’ lack of legal representation, the respondents in their submissions addressed the material findings on each of the causes of action and whether there was any error in those key findings (Issue 3). I have also dealt with the appeal on that substantive basis.

The facts giving rise to the proceeding

The genesis of the appellants’ complaint before the primary judge was advice given and steps taken in previous divorce proceedings in the Family Court of Australia, as it was then known, between his wife (Ms Manny), himself and the JMG companies (FamCA proceedings). The JMG was part of the FamCA proceedings because Mr Manny was the sole director and shareholder of all the relevant corporate entities, and it collectively held a large property portfolio, all of which were considered to be part of the asset pool to be divided between Mr and Ms Manny. The assets were heavily geared, with loan facilities in the total sum of $14,008,000. Several loan facilities were due to expire on 17 October 2010.
The FamCA proceedings were heard over the course of a year (July 2009 and July 2010). Final orders were made by Faulks DCJ at first instance on 13 July 2010, with minor amendments made pursuant to the slip rule on 14 July 2010, (Final Orders). One of those orders required Mr Manny to pay to Ms Manny the sum of $1,258,000.00 within 14 days, in default of which, the entire property portfolio was to be sold in 3 tranches.
Mr Manny wanted to delay enforcement of the final orders, while hoping the property market improved and the ANZ bank did not foreclose (primary judgment at [333]). On or around 20 July 2010 (on the appellants’ pleaded case), he and the JMG retained DLL, which had not previously been involved in the FamCA proceedings. DLL promptly sought a stay of the order to pay the said sum to Ms Manny, pending an appeal of the final orders made.
Importantly for the issues in dispute in this proceeding, the application prepared by DLL did not seek to restrain the sale of any of the properties. The orders proposed provided for a restraint on Mr Manny and the JMG from borrowing any further money against the properties.
On 27 August 2010, Faulks DCJ stayed the entirety of the orders. That is, Mr Manny did not have to pay Ms Manny the sum ordered within the 14 day timeframe ordered, but nor could he sell any property at all, including a property that the parties (Mr and Ms Manny and the JMG Group) had agreed could be sold (“Unit 2” at an address in Page) and which was in the process of being sold at the time of the hearing on the stay application. That was an outcome that no party had sought or agreed to.
Counsel for the plaintiffs immediately sought an order for the urgent obtaining of the transcript. Faulks DCJ refused that request but did order that the transcript be placed on file when it became available.
The orders made by the Court were plainly problematic for the JMG, with the imminent expiry of its loan facilities. Upon their expiry, the ANZ had made it clear that the loans were required to be repaid. However, the evidence also disclosed that the JMG was separately in default of the loans, all of which were held with the ANZ bank, and had been in default for some time.
It is important to note also that Faulks DCJ knew that information at the time his Honour refused to permit any properties to be sold. After making the orders, his Honour said of Mr Manny:
He wanted the stay. He’s got the stay, and if it means in the end that the whole empire comes tumbling down, …or perhaps the kingdom or the princedom comes tumbling down, because the bank moves in on 17 October, then he will recognise what the situation is. …
Notwithstanding the orders made by Faulks DCJ, on 8 October 2010 the parties subsequently agreed consent orders to enable the sale of 2 properties, and on 10 October 2010, further consent orders were made in the Family Court by Finn J. However, time was against Mr Manny and the JMG. As the primary judge recorded in the primary judgment at [15], despite numerous notifications by the ANZ bank that the loan facilities would not be extended and must be paid in full on 17 October 2010, the facilities were not repaid on that date.
That meant the property “empire” did indeed come tumbling down. Notices of default and demand were served in November 2010. The ANZ bank appointed rent receivers to the JMG properties on 22 December 2010, followed by receivers for sale on 21 January 2011, administrators in February 2011 and liquidators on 18 April 2011.

Issue 3: Did the primary judge otherwise err in the findings made?

As recognised by the respondents in the way they dealt with this appeal, the overriding question is whether the primary judge was correct in the material findings made, being those findings critical to establishing the elements of each cause of action. Fatal to the appellants’ claim was the finding made by the primary judge that there was no breach of duty of care, and therefore no breach of contract or breach of fiduciary duty. It suffices to deal on appeal with whether the primary judge erred in that finding.
The primary judge’s findings on breach (see [207] above) were fundamental because the causes of action in negligence, contract and equity because were interlinked. The scope of a solicitor’s duty of care in negligence is generally prescribed by the terms of the retainer: Hawkins v Clayton (1988) 164 CLR 539 (Hawkins) at 544-545; Badenach v Calvert [2016] HCA 18; 257 CLR 440 at [16]. That point was made by the primary judge at [361] of the reasons. The applicable standard was that of the reasonably skilled experienced family law practitioner: primary judgment at [371] and the authorities there-cited.
Further, the provisions of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) apply to any “claim for damages for harm resulting from negligence, whether the claim is brought in tort, contract, under statute or otherwise”: s 41 of the Wrongs Act.
The reasoning that follows deals with the two aspects of the breach alleged; the first being that DLL acted without instructions and the second being that the advice given breached the said duty.

The retainer

The content of a solicitor’s duty in contract and tort requires the solicitor to exercise reasonable care in the provision of the legal services which are the subject of the retainer: Artistic Builders Pty Ltd v Nash [2010] NSWSC 1442 (Artistic Builders) at [513]; Heydon v NRMA Ltd; Bateman v NRMA Ltd; Morgan v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 at [146]. That calls attention to what services the solicitor was required to provide, which in turn requires consideration of what DLL was retained to do.
There was a factual dispute about that. The appellants’ pleaded case was that DLL was retained to:
(a)Represent and advise the appellants in relation to a costs application by Ms Manny in the FamCA proceedings;
(b)Advise on an application pursuant to the “slip rule” to correct an extra payment ordered to be paid to Ms Manny; and
(c)Make an application to extend the time for the payment to Ms Manny under the final orders in the FamCA proceedings.
The appellants pleaded that DLL had not been instructed to stay the Final Orders at all.
The “slip rule” application was in reference to Mr Manny’s proposed application that the quantum of the judgment sum payable to Ms Manny in the Final Orders, which had been increased to $1,258,000.00 on 13 July 2010, be amended pursuant to the slip rule On 12 July 2010 (before DLL was retained) Mr Manny had applied to reduce the judgment sum to $1,015,000.00 and to make that sum payable over 5 years. The application was rejected by Faulks DCJ.
The appellants argued before the primary judge that they did not instruct DLL to appeal the final orders. It was the appeal that led to the application to stay the orders, and as a consequence of that application, the orders were made prohibiting Mr Manny from selling the property portfolio in an orderly way or otherwise controlling which assets to sell in a depressed property market (following the Global Financial Crisis in 2008).
The factual finding made by the primary judge with respect to the retainer and the advice provided by Mr Lardner was at [365]-[367]:
365. The plaintiffs have not discharged the onus to prove the terms of the retainer as pleaded.
366. Rather, I have found that, on 20 July 2010, Mr Lardner correctly advised Mr Manny that the “slip rule” was inapplicable, that an appeal was the only real option, and that, pending any appeal, Mr Manny should seek a stay of the final orders to prevent enforcement. Mr Manny accepted that advice.
367. Mr Manny instructed DLL to do what was necessary to achieve payment to Ms Manny of a sum less than $1.258M over a longer period than 14 days with a view to salvaging at least part of the JMG property empire, including by filing an appeal and making a stay application, if necessary and appropriate. That was the basis upon which DLL was retained.
The primary judge later made this these two findings at [386]-[387]:
386. I have accepted the evidence of Mr Lardner that he obtained instructions before proceeding with the stay application and appeal.
387. Further, Mr Lardner took no significant step without consulting counsel. He agreed with and followed counsel’s advice.
Those factual findings were supported by evidence. The evidence was not solely based on Mr Lardner’s evidence (in affidavit and oral form). The primary judgment refers at [113]-[114] and [126] to emails sent by Mr Manny to one or both of the legal representatives for Ms Manny and the ANZ Bank, where:
(1)On 30 June 2010, he wrote, “I have my lawyer to prepare for an appeal” and that “if necessary” he would “go to an appeal court to stop” the payment to Ms Manny of the $1,258,000.00; and
(2)On 13 July 2010, he wrote that his only option was to appeal the order to pay within 14 days, although he did not want to engage in further litigation.
Further, on 17 July 2010, Mr Manny emailed the associate to Faulks DCJ, stating (among other things) that he was appealing the decision of 13 July 2010: primary judgment at [134].
That contemporaneous evidence was entirely consistent with what DLL said they were retained to do (appeal the final orders and seek to stay the enforcement of the order to pay the judgment sum to Ms Manny within 14 days). That meant the acceptance of DLL’s evidence as being reliable and credible was not contrary to a compelling inference. Indeed, the finding as to the appellants’ instructions may have been able to be inferred on the balance of probabilities from the documentary evidence alone.
In light of that evidence, there was no error in the primary judge’s finding that DLL had instructions to appeal the order to pay Ms Manny and to seek a stay of that order in the meantime.

The hearing of the stay application on 27 August 2010

When the stay of the orders was sought in the FamCA proceedings, counsel instructed by Mr Lardner opposed any restraining order on the sale of the properties on 27 August 2010 (as opposed to a restraint on further borrowing). As the primary judge found, based on clear documentary evidence in the form of the transcript of the FamCA proceedings, the restraint on the sale was imposed by Faulks DCJ over their objection.
The transcript records that at the hearing, the matter was stood down expressly so that counsel for the appellant, Mr McGrath, could obtain instructions from Mr Manny. Following that, His Honour later had the following exchange with Faulks DCJ:
HIS HONOUR:       … if there is to be a stay it will be on condition that no property is sold. …Do you have instructions about that?
MR McGRATH:       Well, it’s opposed …
HIS HONOUR:       Well, you can appeal that too if you’d like.
The transcript confirms the primary judge’s findings. It provides objective corroboration of Mr Lardner’s version of events on what the instructions were. There was accordingly no error in the factual findings made by the primary judge as to what the instructions were at the hearing on 27 August 2010 and what orders were sought.

The consent orders made in October 2010

The legal representatives for Mr Manny and the JMG immediately took steps to appeal the order made on 27 August 2010.
The primary judgment records at [253]-[260] what then occurred as to the variation by Finn J on 10 October 2010 of the orders earlier made by Faulks DCJ by consent, and the expedition of the appeal. The varied consent orders permitted the sale of two properties. The orders also expressly permitted the appellants to seek refinancing.
The appellants argued at first instance that they had not given instructions consenting to the variation. This was dealt with by the primary judge at [258]-[260]. The contemporaneous invoices from DLL indicated the phone calls that DLL had made and that DLL had taken instructions and sent a lengthy email to Mr Manny “reporting and advising” on 9 October 2010 (the day before the orders were made). Again, that was independent documentary evidence corroborating the taking of instructions from the appellants in relation to orders by consent that the primary judge later described (at [391]) as significantly improving the appellants’ position. Such evidence demonstrates that the primary judge’s finding in this regard was open and, in my view on a rehearing, correct.
Findings that DLL acted in accordance with their instructions are only one limb of the appellants’ case. As stated in Artistic Builders at [512] (emphasis added):
Similarly, if a client provides instructions to pursue a particular course of action, which is imprudent, the solicitor may, depending on the circumstances, be required to warn and advise the client of the risks of doing so thereby ensuring that the client understands the nature of the risks which the instructions entail. The obligation to do so may be seen as one aspect of a solicitor’s duty to obtain “informed instructions”…
The second limb in relation to breach therefore deals with the advice that was actually given.

Was the advice given by DLL a breach of the solicitor’s retainer or duty of care?

The primary judge dealt with the applicable standard of care and the applicable statutory provisions, being ss 40 to 43 of the Wrongs Act, at [368]-[381]. No complaint is made about that part of the primary judgment.
Her Honour identified the relevant risk of harm at [382]-[383]:
382. In this case, having regard to the terms of the retainer as established by the evidence, the relevant risk of harm was the maintenance and enforcement of the final orders, including by the forced sale of the JMG properties. These risks existed in the context that, to Mr Lardner’s knowledge, ANZ was threatening to foreclose on the JMG properties.
383. The risk of harm was foreseeable, not insignificant, and, in the circumstances, a reasonable solicitor in Mr Lardner’s position would have taken precautions.
No complaint was made about the identification of the risk of harm. The evidence firmly established that as at 20 July 2010 the appellants were in a financially precarious position and were at risk of the ANZ bank foreclosing on the loan facilities after they expired on 17 October 2010.
As to what advice should have been given, or precautions taken (to use the language of the Wrongs Act), the primary judgment at [384] confirmed that they were:
(a)To appeal the orders, once it was decided that there were grounds to do so, to guard against the risks that the final orders would be maintained and enforced; and
(b)To seek to stay the orders in the meantime, to prevent the orders being enforced before the appeal was heard and determined.
There was no expert evidence that what the respondents did fell short of what a reasonably skilled solicitor, with the knowledge of the financially precarious position of the companies, should have either advised or done. The primary judge found at [384] that these were “the only viable precautions”. I agree with that conclusion but would add that because of the urgency resulting from the imminent foreclosure on the loans, the additional precaution of seeking expedition was required, and that is the course that DLL pursued.
There may have been an additional penumbral duty of care to take positive steps to protect the appellants from economic loss beyond the obligations in a retainer: as to which see Hawkins at 579 per Deane J. This is relevant because a further precaution to take in respect of the risk of ANZ’s threatened foreclosure was to seek to refinance with a different lender.
The primary judge referred to the additional arguable content of the duty of care at [370], and then dealt with it at [394]-[395], stating:
394. When advising on the appropriate course of action, a reasonable solicitor in Mr Lardner’s position would have taken ANZ’s threat of foreclosure on 17 October 2010 into account. Although Mr Lardner was not a financial adviser and was under no duty to provide financial advice, it was appropriate that he give some attention to the plaintiffs’ relationship with ANZ because the FCA final orders and the ANZ facilities related to the same property.
395. In relation to the threatened foreclosure, there was little that Mr Lardner could do beyond repeatedly urging Mr Manny to refinance, introducing him to a financier and maintaining friendly contact with ANZ with a view to discouraging foreclosure. That is what Mr Lardner did.
The uncertainty as to the existence and scope of any duty outside the scope of the retainer at common law is discussed in Alan R Abadee et al, Professional Liability in Australia (Thomson Reuters, 4^th ed, 2023) at 474-5. There is authority to the effect that the proper discharge of a solicitor’s retainer may, upon learning of certain matters placing a client at risk during the course of performing that retainer, require the solicitor to advise the client of such a risk: David v David [2009] NSWCA 8 (David) at [76]. However, even if there was a such duty here, DLL were not in breach of it in the present circumstances, because:
(a)The risk of ANZ’s likely foreclosure from 17 October 2010 was made plain to the appellants by the ANZ bank itself for some time, including by letter dated 18 May 2010 advising that the facilities “will not be extended or varied in any manner” if the debts were not paid in full, so that the appellants could not be described as being unaware of the risk, requiring DLL to “speak in order to bring to the attention of the client the aspect of concern”: David at [76].
(b)The need to refinance was also known by the appellants; that is, the appellants did not need advice about the need for further (financial) advice because they were aware of the solution or the appropriate further precaution needed to guard against that risk.
(c)The possibility of refinancing was expressly accommodated in the consent orders of 10 October 2010 – the steps being taken by DLL did not conflict or obstruct that additional precaution being taken.
(d)DLL introduced the appellants to a financier that may have been able to assist; indeed, DLL took positive steps to assist the appellants to eliminate the risk.
For these reasons, no error was made in relation to the primary judge’s finding that there was no breach of duty of care on either a failure to take instructions or failure to advise case.
The conclusion that there was no error in the findings with respect to any breach means it is unnecessary to consider whether the primary judge was correct as to the findings concerning the advocate’s immunity from suit, as set out in the primary judgment at [409]-[415]. That was a separate conclusion reached by the primary judge that was fatal to the appellants’ claim.
Similarly, there is no need to deal with the findings in respect of causation, the applicability of the limitation period, or the personal bankruptcy of one of the respondents.

No breach of fiduciary duty

There is one aspect of the solicitor’s fiduciary duty to the appellants that did not receive specific attention in the judgment of the primary judge, although it was a matter that was discussed during a number of interlocutory applications leading to the substantive hearing and was pleaded. The Second Further Amended Statement of Claim contained the following allegations (emphasis added):
Fiduciary Relationship
23. In performance of their retainer the defendants were in a position of trust and confidence in relation to the interests of each of the plaintiffs.
24. The fiduciary duties included:
(a) to exercise their power and discretion at all times in the best interests of each of the plaintiffs and not to their detriment.
(b) to protect and assert each plaintiff’s economic interest.
(c) to ensure that each plaintiff was aware of relevant facts in circumstances affecting their rights.
(d) to ensure that each plaintiff was given competent, professional legal advice regarding their rights.
The pleaded breach of fiduciary duties at [33]-[35] of the claim included the following (emphasis added):
33. The defendants failed to exercise their powers and discretions at all times in the interest of each plaintiff and not to their detriment.
34. The defendants failed to protect and assert the economic interest of each plaintiff.
35. The defendants failed to ensure that each plaintiff was aware of the relevant facts and circumstances affecting his or their rights.
The pleading properly raised the issue of whether DLL acted in the best interests of each plaintiff and made each plaintiff aware of the circumstances affecting their rights.
Where a solicitor acts for multiple parties, it is incumbent upon a solicitor to consider whether a conflict between their interests arises, and such a duty is ongoing: see Mantonella Pty Ltd v Thompson [2009] QCA 80; 2 Qd R 524 (Mantonella) at [80]-[84]; Artistic Builders at [511]. The applicable principle was set out in Mantonella at [84], quoting from Clark Boyce v Mouat [1994] 1 AC 428 at 435-436 (emphasis added):
There is no general rule of law to the effect that a solicitor should never act for both parties in a transaction where their interests may conflict. Rather is the position that he may act provided that he has obtained the informed consent of both to his acting. Informed consent means consent given in the knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of the other. If the parties are content to proceed upon this basis the solicitor may properly act. In Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606, 636, Upjohn LJ said:
“the client is entitled to the services of his solicitor who may not charge more than he is legally entitled to, and must not put himself into a position where he may owe conflicting duties to different clients (see, for example, Inre Haslam and Hier-Evans [1902] 1 Ch. 765). But the person entitled to the benefit of the rule may relax it, provided he is of full age and sui juris and fully understands not only what he is doing but also what his legal rights are, and that he is in part surrendering them.”
There must be a real sensible possibility of conflict, viewed from the perspective of a reasonable person appraised of the facts and circumstances of the particular case: Rigg v Sheridan [2008] NSWCA 79 at [38].
Here, DLL accepted instructions to act in a piece of litigation from more than one party, namely Mr Manny and the JMG companies, whose interests in the conduct of the litigation may possibly have conflicted. On one view, it was in Mr Manny’s interests to stay the entirety of the orders, so that he could negotiate paying a lesser sum to Ms Manny, while pursuing the course of appealing the Final Orders, as well as attempting to refinance and to fulfill his hope, however faint, of retaining some of the property portfolio.
By contrast, it was plainly in the JMG’s interests to sell at least some of the assets owned by them and reduce their debt position to ANZ as soon as possible, given the impending expiry of the loan facilities on 17 October 2010. They were at risk of being wound up if the ANZ bank sought to enforce its rights.

There may thus have been a conflict of interest for DLL commencing in July 2010 to act for both Mr Manny and the JMG properties in the advice given or steps taken in the FamCA proceedings. There was no evidence that the respondents turned their mind or gave any advice about whether the JMG should obtain separate representation. However, that may have been because of the way the trial was conducted, a matter to which I will shortly return.
The complaint about DLL acting for all the appellants was also obliquely raised on appeal, with grounds of appeal arguing that the trial judge erred “not to find that the Respondents were negligent acting for the Appellants on 27 August 2010” and “not to find that the Respondents were negligent acting for the Appellants” on 8 and 10 October 2010.
During the hearing of the appeal, the respondents submitted that the consideration of advice given by DLL to parties who may have been in a possible conflict of interest (a claim which arguably might have fallen outside the advocates’ immunity from suit) was neither pleaded (in their view) nor developed at trial and again the argument was buried on appeal.
It must be acknowledged that the appellants were legally represented at first instance and are bound by the way the trial was conducted before the primary judge. I have dealt with it primarily for the purpose of explaining to the parties, and particularly the appellants, an issue that has subsequently caused some confusion as to what the appellants perceived was an earlier ruling about the advocates’ immunity and was the source of complaint on the appeal.
For completeness, whatever advice was given or not given, the point did not crystallise at trial. In the way the evidence fell before the primary judge, any potential conflict of interest at the outset of the retainer was more apparent than real. The course urgently pursued by DLL on behalf of Mr Manny (on the facts found by the primary judge) did not conflict with the interests of the JMG, because the orders made on 27 August 2010 were not the orders that DLL sought. The restraint on the sale of the entire property portfolio was not a product of advice that was given by DLL that was contrary to one or more of the appellants’ interests. They were the product of the independent exercise of judicial power, as the primary judge found at [390].

Conclusion

For these reasons, there was no error in what I perceive to have been the critical findings made by the primary judge determining the outcome of each cause of action. I therefore agree with the orders proposed by Loukas-Karlsson and O’Sullivan JJ.

Orders

For the above reasons, the Court makes the following orders:
(a)The appeal is dismissed.
(b)The appellants are to pay the respondents’ costs of the appeal.
(c)Costs are to be assessed on a party-to-party basis unless the respondents apply to the Court otherwise within seven (7) days of the date judgment is entered.

I certify that the preceding three hundred and twelve [312] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 4 April 2024