Martin v Cohen - [2014] NSWDC 145

District Court

New South Wales

Medium Neutral Citation: Martin v Cohen [2014] NSWDC 145
Hearing dates: 23, 24, 25, 28, 29, 30, 31 July, 1 and 4 August 2014
Decision date: 11 September 2014
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1.Verdict and judgment for the defendant;
2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned after the time for an appeal has expired;
4.Liberty to apply on 7 days notice if further orders are required.

Catchwords: TORTS - alleged professional negligence - legal practitioner - professional services provided by solicitor - resolution of factual dispute concerning scope of retainer -whether coercion to settle underlying Supreme Court proceedings - whether breach of fiduciary duty - whether breach of duty of care concerning advice and implementation of instructions including in the course of advocacy - whether advocate's immunity established - whether causation of claimed losses established; DAMAGES - assessment of claimed losses
Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5E, s 16
Civil Procedure Act 2005, s 100
Legal Profession Act 2004, s 347
Property (Relationship) Act 1984, s 20
Solicitors Rules, r 1 (The Law Society of New South Wales Professional Conduct and Practice Rules Legal Profession Act 1987)
Cases Cited: Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46
Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222.
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
CrÃ©dit Lyonnais SA v Russell Jones and Walker [2003] Lloyd's Rep PN 7
Donnellan v Woodland [2012] NSWCA 433
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Jennings v Zihali-Kiss (1972) SASR 493
Lucantonio v Klienert [2009] NSWSC 853
Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449; (1997) 144 ALR 729
Marshall v Prescott (No 3) [2013] NSWSC 1949
Permanent Trustee Australia Ltd v Boulton; Permanent Trustee Australia Ltd v Lynjoe Pty Ltd [1994] 33 NSWLR 735;
Stillman v Rushbourne [2014] NSWSC 730
Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182
Studer v Boettcher [2000] NSWCA 263
Trust Company of Australia v Perpetual Trustee WA Limited (1997) 42 NSWLR 237
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Texts Cited: Thomson Reuters Laws of Australia, (accessed as at 20 August 2014): 27 Professional Liability, 27.1 Fiduciary Duties [27.1.230]
Category: Principal judgment
Parties: Noel Charles Martin (Plaintiff)
Andrew John Cohen (Defendant)
Representation: Plaintiff in person
Mr D Priestley (Defendant)
Plaintiff in person
Colin Biggers & Paisley (Defendant)

File Number(s): 2012/47950
Publication restriction: None

Judgment

Table of Contents

Nature of case

[1] - [7]

Motion to amend the defence

[8] - [10]

Motion by plaintiff seeking reliance upon documents

[11] - [13]

Pleadings

[14] - [22]

Evidence overview

[23] - [26]

Absence of expert evidence

[27] - [28]

Issues

[29]

Credit

[30] - [55]

   Plaintiff

[31] - [39]

   Miss Findlay

[40] - [45]

   Ms Cohen

[46]

   Defendant

[47] - [54]

   Ms Hilder

[55]

Facts

[56] - [164]

   Background events

[57] - [77]

   Commencement and disputed scope of defendant's retainer

[78] - [109]

   Rent claim

[110] - [112]

   Delays in previous District Court litigation

[113] - [114]

   Claimed delay over costs assessment

[115] - [128]

   Resolution of Supreme Court Equity proceedings

[129] - [150]

   Post settlement events

[151] - [164]

Issue 1 - Scope of defendant's retainer

[165] - [187]

Issue 2 - Alleged coercion to settle

[188] - [223]

Issue 3 - Whether breach of fiduciary duty

[224] - [253]

   Applicable principles - fiduciary duties

[228] - [232]

   Consideration of alleged breach of fiduciary duty

[233] - [253]

Issue 4 - Duty of care and alleged breaches

[254] - [303]

   (1) Alleged preferment of own interests

[260]

   (2) Alleged delays in the litigation

[261] - [271]

   (3) Delays in obtaining a costs assessment

[272] - [284]

   (4) Alleged inadequate preparation of litigation

[285] - [297]

   (5) Alleged inadequate representation

[298] - [301]

   (6) Alleged non-pursuit of damages claims

[302] - [303]

(7) Alleged breach of Solicitors Rules

[304] - [305]

Issue 5 - Causation

[306] - [313]

Issue 6 - Assessment of damages

[314] - [322]

Disposition

[323]

Costs

[324]

Orders

[325]

Nature of the case

The plaintiff, Mr Noel Charles Martin, a disability pensioner, and former self-employed builder, who is now aged 64 years, brings these proceedings alleging professional negligence and claiming damages against his former solicitor, the defendant, Mr Andrew John Cohen. The Civil Liability Act 2002 applies to the proceedings ["CL Act"].

The claim concerns the plaintiff's dissatisfaction with the defendant's legal services and advice that commenced from March 2004 relating to a number of matters in contention concerning the plaintiff's legal affairs, including the defendant's role as an advocate in proceedings the defendant conducted on the plaintiff's behalf before Rein J between 13 and 17 February 2006 in the Equity Division of the Supreme Court, when a settlement was eventually reached in those proceedings.

The hearing of the present proceedings took place over the course of 9 days. The original estimate provided to the court at call-over was 2 - 3 days. That estimate was exceeded largely because the plaintiff was selfrepresented and because he was unfamiliar with legal procedure. He was at times frustrated by the volume of material in the case: T350.35.

The proceedings were inevitably unduly prolonged because of the procedural latitude required to be given to a litigant in person, and because the plaintiff gave his evidence in a narrative form, which at times strayed into him making inadmissible statements in the course of his evidence. There were also breaks in the proceedings due to the plaintiff's health problems impacting upon him from time to time.

The present litigation follows other tranches of litigation involving the plaintiff in a number of forums. This included, variously, actions in the Local Court, the District Court, the Supreme Court (2), the Federal Court, the Consumer, Trader and Tenancy Tribunal, the Victims' Compensation Tribunal, as well as complaints to the Ombudsman and the Police Integrity Commission. The plaintiff had represented himself in the latter three matters: T150.50; T152.5; T152.25.

In addition to those matters, the plaintiff had also initiated professional disciplinary complaints against the defendant in relation to the subject matter of the present proceedings. Those disciplinary proceedings were ultimately dismissed in the Administrative Decisions Tribunal.

All of the above proceedings had their origins in a failed de facto relationship that had subsisted between the plaintiff and Ms Johanna Jones. Before identifying, where relevant, aspects of that relationship and the other litigation in more detail, it is necessary to refer to two interlocutory motions that arose for determination in these proceedings.

Motion to amend the defence

On 24 June 2014 the defendant filed a notice of motion seeking to add a further paragraph to his defence in the following terms:

"In answer to so much of the plaintiff's claims that rely upon the defendant's conduct relating to settlement of proceedings before Reine [sic] J on or about 16 and 17 February 2006, the defendant is immune from suit by virtue of advocate's immunity."

That motion had first been considered by another judge at a case management hearing on 18 July 2014, at which time an order was made that the defendant's motion should be stood over to be determined at the trial.

At the commencement of the trial, for the reasons delivered at that time, the defendant's motion seeking to amend the defence was determined with the result that the defendant was given leave to rely upon the above amendment to his defence.

Motion by plaintiff seeking leave to rely upon documents

At the commencement of the trial, the plaintiff was given leave to file a notice of motion by which he sought a ruling on whether he was entitled to rely upon three identified documents that had come into his possession. Those documents comprised submissions respectively dated 15 November 2007, 4 December 2008 and 27 March 2009. These documents had been prepared by the defendant, and were addressed to the Law Society of NSW, in response to a disciplinary complaint the plaintiff had made against him.

The plaintiff's stated purpose in pursuing the motion was as a precautionary measure by which he sought to clarify whether he would be in a position to use those documents to base a proposed credit attack that he anticipated making in the course of his cross-examination of the defendant on what was said to have been inconsistent statements made by the defendant in his affidavits and in the identified submissions.

As no claim had been made for privilege over these documents, either pursuant to any statutory provision or at common law, I concluded that the issue raised in the motion involved evidentiary and tactical questions, which did not require that a ruling be made in advance. It was not necessary for me to view the documents for the purpose of arriving at that view. It was indicated to the plaintiff that he was at liberty to make such use of the documents as he saw fit, subject to considerations of relevance. Ultimately, those documents were not tendered in evidence.

Pleadings

The plaintiff's claim in these proceedings was originally formulated in a statement of claim filed on 10 February 2012. The plaintiff ultimately relied upon an amended statement of claim ["ASOC"] prepared on his behalf and filed on 11 October 2012 by solicitors who were then acting for him. On 23 April 2013, those solicitors filed a notice of intention to cease to act for the plaintiff. Since that time the plaintiff has represented himself.

The plaintiff's amended statement of claim raised contentious allegations against the defendant framed in negligence and breach of fiduciary duty in respect of legal services the plaintiff claimed the defendant was to provide to him concerning the matters as summarised below:

(1) Potential civil claims he might have had against certain police officers and the State of New South Wales, Ms Johanne Jones, Mr Christopher Jack and Mr Peter Clinton, variously alleging false imprisonment, assault, battery, conversion or detinue of property arising out of events occurring at the plaintiff's home on 15 February 2003 involving the abovementioned persons: ASOC paragraph [4];

(2) A claim the plaintiff perceived he could have enforced against Ms Johanne Jones for the payment of rent on a property she occupied at 31 Learmont Street, Willow Tree: ASOC paragraphs [5]-[7];

(3) Proceedings between the plaintiff and Ms Johanne Jones that had been commenced in the District Court at Scone arising from their de facto relationship, and which were subsequently transferred to the Supreme Court: ASOC paragraph [8];

(4) The circumstances of the resolution by way of settlement of Supreme Court Equity proceedings where the defendant appeared as the plaintiff's solicitor advocate in lieu of counsel. The defendant took over the role of counsel whom he had briefed because of the unexpected short notice refusal of that counsel to appear at the hearing of those proceedings on the basis that she believed her fees would be unlikely to be paid: ASOC paragraph [8].

The allegations of negligence against the defendant under present consideration were wide ranging, but may be conveniently stated as comprising the following essential assertions:

(1) Alleged failure to exercise the standard of skill and care expected of a reasonably competent legal practitioner performing his duties pursuant to the retainer agreement entered into between the parties: ASOC paragraphs [9]-[14];

(2) Alleged breach of fiduciary duty in circumstances where to the knowledge of the defendant, the plaintiff was said to be unsophisticated concerning legal matters and where the defendant allegedly:

(a) Obtained an unauthorised benefit from his relationship with the plaintiff;

(b) Behaved recklessly or carelessly in the legal representation and advice he gave the plaintiff;

(c) Placed himself in a position where there was a real or substantial possibility that his personal interests would be in conflict with those of the plaintiff;

(3) Alleged preferment of his own interests to those of the plaintiff in placing undue pressure and influence on the plaintiff to settle the Supreme Court proceedings. This was by allegedly overbearing the plaintiff's will in order to obtain the plaintiff's instructions to accept a settlement proposal where the plaintiff alleged his case had not been properly investigated or prepared for hearing, and where the plaintiff later considered the result of those proceedings to have been disadvantageous to him.

In consequence of those allegations, the plaintiff claimed "Damages and or Equitable Compensation", interest pursuant to s 100 of the Civil Procedure Act 2005, and costs.

Unusually for this type of case, the defendant's legal representatives did not seek to clarify the plaintiff's pleaded allegations by pursuing further and better particulars in an attempt to confine or delineate these claims. The reasons for the defendant's legal advisors not pursuing that course were not the subject of detailed explanation. This requires no further comment.

However, in the absence of the pursuit of further particulars on behalf of the defendant, some of the defendant's objections to portions of the plaintiff's evidence of a lack of particulars to base such evidence were overruled because of that approach.

In a case where voluminous documents were relied upon by the respective parties, neither party sought to pursue interrogatories aimed at simplifying the case. This compounded the non-pursuit of particulars.

In his defence filed on 7 December 2012, which addressed the plaintiff's amended statement of claim as summarised in paragraphs [15] - [16] above, the defendant relied upon the following propositions:

(1) A denial that his retainer had extended to any work not identified in the cost agreement entered into by the parties on 31 March 2004, and in related correspondence that followed between the parties;

(2) A denial that he had been retained to advise upon, or to institute proceedings arising from events occurring on 15 February 2003, in which the plaintiff had suffered harm;

(3) A statement to the effect that his appearance as advocate for the plaintiff in Supreme Court proceedings between 13 and 17 February 2006 without the assistance of counsel was the subject of an agreement with the plaintiff dated 3 February 2006, which had envisaged such a course;

(4) A denial that he had presented the plaintiff with an over-bearing ultimatum to settle his Supreme Court proceedings which, if not acceded to, would result in his withdrawal from further representing the plaintiff in those proceedings. The defendant claimed that the settlement that had been negotiated in the Supreme Court proceedings was in accordance with the plaintiff's instructions, and that the settlement was to the plaintiff's satisfaction at the time;

(5) A denial that he had been negligent as alleged;

(6) A denial of any alleged breach of fiduciary duty on his part;

(7) A denial of the plaintiff's entitlement to any damages.

Following the grant of leave at the outset of the trial, the defendant also relied upon the defence of advocate's immunity in answer to the plaintiff's complaints concerning the defendant's conduct of the Equity proceedings.

Evidence overview

In the case for the plaintiff, oral evidence was given by the plaintiff, by his long time carer, Miss Lyndal Findlay, and by Ms Elizabeth Cohen who is the sister of the defendant. Before her withdrawal from representing the plaintiff, Ms Cohen had been the barrister retained by the defendant to represent the plaintiff in the previous Equity proceedings of which the plaintiff now complains.

The plaintiff relied upon voluminous documentary exhibits in the series Exhibit "A" to Exhibit "AAS". These exhibits were tendered out of chronological order. They are re-listed in chronological order in the Appendix to this judgment. That list also includes the defendant's documentary exhibits, which for convenience, have also been incorporated into chronological order.

In addition to his affidavit sworn on 4 April 2014, the defendant gave oral evidence and relied upon a bundle of documents tendered as Exhibit "1", which comprised Tabs 1 - 22, but not Tab 17. An unchallenged affidavit from the defendant's practice assistant, Ms Jane Hilder, sworn on 4 April 2014, was also read as evidence in the case for the defendant.

Numerous other documents were either marked for identification or referred to but were not tendered in evidence.

Absence of expert evidence

No expert evidence was called by either party concerning the content or scope of the duty of care owed by the defendant, or on the question of whether there had been a breach of the duty of care the defendant owed to the plaintiff.

For the purpose of determining whether the defendant had by his actions departed from the standard of care expected of him as a solicitor in the circumstances of his retainer by the plaintiff, in this case, expert evidence was not essential to the task of determining that issue: Permanent Trustee Australia Ltd v Boulton; Permanent Trustee Australia Ltd v Lynjoe Pty Ltd [1994] 33 NSWLR 735; Lucantonio v Klienert [2009] NSWSC 853, at sub-paragraph (6) of paragraph [8].

Issues

Apart from matters concerning the credibility and reliability of testimony, the issues calling for decision in this case can be conveniently identified as follows:

Issue 1 - The nature and extent of the defendant's retainer from the plaintiff;

Issue 2 - Whether the plaintiff had been improperly coerced into settling the proceedings in the Equity Division of the Supreme Court;

Issue 3 - Whether there is evidence of a breach of the fiduciary duty the defendant owed to the plaintiff;

Issue 4 - Whether the plaintiff has established relevant claimed breaches of the duty of care owed to him by the defendant;

Issue 5 - Whether the plaintiff's claimed losses were relevantly caused by a breach of duty of care on the part of the defendant;

Issue 6 - The assessment of the plaintiff's damages.

Credit

Before considering and determining those issues it is necessary to record my findings concerning the credibility of testimony of the respective witnesses.

Plaintiff

The plaintiff appeared to sincerely hold the earnest belief in the righteousness of the position he has taken in the litigation. However, in his oral evidence he sought to downplay the description of the nature and extent of his former de facto relationship with Ms Jones. That downplayed description seemed to be at variance with the contemporaneous documentary evidence.

The plaintiff had also varied his instructions to the defendant on the extent of that relationship: Exhibit "AZ". The variations in the plaintiff's account of his de facto relationship with Ms Jones caused me to doubt the reliability of his oral evidence where it differed from that documentary evidence.

The plaintiff claimed to be an unsophisticated person in his dealings with the defendant. I do not accept that claim. He has been a successful businessman in a number of areas of activity. He is articulate and demonstrated an intimate working knowledge of the documents he relied upon in his case. He claimed to be a document analyst. He is far from being an unsophisticated person.

On behalf of the defendant, the plaintiff's credit was challenged on a number of bases.

It was suggested to the plaintiff, and denied by him, that his evidence to the effect that Section B of the defendant's costs agreement comprising Exhibit "C" contemplated an action for damages against the police was not honest evidence: T153.25 - T154.5. For the reasons set out in my consideration of the nature and extent of the retainer, I do not accept the plaintiff's denial.

When the plaintiff was cross-examined, it was put to him that he was prepared to act dishonestly to further his own interests: T241.25. Whilst he denied that suggestion, I do not accept his denial in light of his concession in his evidence in which he agreed he had written the word "paid" on the series of invoices to Ms Jones and comprising Exhibit "AAJ". He did so when in fact they had not been paid, yet he did so knowing, at the time of those notations, that Ms Jones was going to use those documents to wrongfully obtain a first home owner's grant from the State Government: T242.20 - T242.32. That activity involved dishonesty on the part of the plaintiff.

The plaintiff at times sought to avoid answering questions asked of him in cross-examination, for example, at T167.24, T174.50, T175.2. In my view, the plaintiff's attitude of seeking to avoid answering questions should be seen as being adverse to his credit as a witness.

The plaintiff conceded that in earlier Supreme Court proceedings, he had given evidence that he believed to be untrue. He sought to inculpate the defendant for this occurrence by suggesting he had been told by the defendant to give that untrue evidence: T207; T208.15; T208.49. He sought to challenge the authenticity of documents that were inconvenient to his case: T213.34. He alleged that the defendant had removed documents from his file but did not make good that allegation: T167.35. The plaintiff also made exaggerated and unsupported claims for damages.

The matters to which I have referred in the preceding paragraphs have led me to conclude that the plaintiff's evidence on matters of contention should be weighed carefully before acceptance.

Miss Findlay

I concluded that the evidence given by Miss Findlay, who was called to corroborate aspects of the plaintiff's evidence, also had to be weighed carefully in view of her long association with the plaintiff, which suggested that her evidence might not be entirely objective or independent. That view was also reinforced by Miss Findlay's evidence in which she identified herself with the plaintiff's cause, with references such as "we" and "us": T277.23; T278.10; T289.23; T290.5.

There was a further need to exercise caution in considering the evidence of Miss Findlay which was relied upon as being corroborative of the plaintiff, not only because of their association and common interest in their failed attempt at pig farming, for which the plaintiff seeks to blame the defendant, but also because of her long involvement in the preparation of the plaintiff's case by attending conferences and discussions, and by her extensive preparation of documents for the plaintiff over time: T273.5; T274.7; T291.35.

The final consideration that leads me to conclude that Miss Findlay was partisan towards the plaintiff, and therefore antagonistic to the defendant, arises from her acknowledgement that she had been involved in fighting the plaintiff's case against the defendant: T298.23-T298.29.

There was a question as to whether Miss Findlay and the plaintiff were partners in a personal relationship or were simply partners in a business sense. When it was put to her in cross-examination that she was in a personal relationship with the plaintiff she emphatically rejected that proposition: T273.26-28; T289.1-34. She explained that over time she had simply been providing personal care services to the plaintiff because of his disability.

The evidence shows that on 22 April 2004, Miss Findlay had either signed or had initialled a letter to the plaintiff's former solicitor identifying herself as "Partner of Mr Martin": Exhibit "1", Tab 15. I find it unnecessary to decide whether the sense in which Miss Findlay used the term "Partner" was in the personal relationship sense, or in the sense of their failed business venture of pig farming.

The true relevance of Miss Findlay's evidence was on the question of whether it was reliably corroborative of the plaintiff's claims concerning the extent of the defendant's retainer and whether the defendant had in fact coerced him into settling his proceedings in the Equity Division of the Supreme Court. For the above reasons I concluded that her evidence on matters of corroboration should be discounted as being unreliable. This is a matter to which I shall return when considering Issues 1 and 2.

Ms Cohen

During the trial the plaintiff sought and obtained leave to issue a subpoena and have it served upon Ms Elizabeth Cohen, a barrister who had formerly represented him in the Equity proceedings. She attended the hearing in answer to that subpoena. There were no challenges to the credibility of the testimony of Ms Cohen. Ultimately, her evidence related to background matters concerning costs, and including CTTT proceedings the plaintiff had unsuccessfully pursued against her as a result of her withdrawal from representing him. It remains unclear as to why she was called as a witness in the plaintiff's case.

Defendant

At the time the defendant was engaged as the plaintiff's solicitor, he had been in sole private practice for about 25 years. At the hearing of the present proceedings he had been in practice for about 35 years. His principal area of practice was family law and related issues, including litigation involving de facto relationships.

The defendant was clearly frustrated by the litigation, its protracted course and by its subject matter. In that regard the defendant said that for years beforehand, he had tried to forget the subject matter of the proceedings, particularly after 2010, when the disciplinary proceedings the plaintiff had initiated against him had concluded. His frustration was understandable having regard to the fact that the underlying events had occurred over 11 years ago, and the last of the defendant's conduct of which the plaintiff complained, had occurred some 8 years ago.

I gained the impression that over time, the various related CTTT proceedings, costs assessments and the dismissed disciplinary proceedings, and the fact that the plaintiff had not paid his outstanding professional fees, had caused the defendant considerable stress, and annoyance. The defendant made reference to the plaintiff having bullied him, which indicated the nature of his feelings towards the plaintiff: T340.4.

The evidence of the defendant on factual matters did not appear to have been based on any recently refreshed recollection by reference to his file (T315.37 - T315.41), although there were some selected file notes exhibited to his affidavit sworn on 4 April 2014. The defendant's file was not the subject of a notice to produce. Nor did it appear to have been the subject of interrogation, although it appears that the plaintiff has inspected it: T366.27.

As the defendant's evidence on factual matters was given many years after the events in question, it was understandable that at times he expressed some impatience at being questioned by the plaintiff, and at having to recount those events without a recent file review in order to refresh his memory. In the circumstances I did not consider those reactions to have derogated from his credit as a witness.

The plaintiff made some general credit challenges to the evidence of the defendant. Those challenges were met with denials by the defendant. For example, the plaintiff suggested the defendant gave evidence which was wrong on the subject of whether the plaintiff had provided the defendant with papers simply for safekeeping against theft rather than to be read and digested for their legal implications: T367 - T368. The plaintiff denied this material comprised instructions. This was denied by the defendant.

I have concluded that the defendant gave truthful evidence. His correspondence with the plaintiff was lengthy and candid in its content. He was selfdeprecatory when discussing delays that had been encountered in the litigation he had been conducting on behalf of the plaintiff, when clearly the fault was not all his: Exhibit "Q"; Exhibit "AL", page 2. Such matters will form the basis of a separate consideration in connection with the analysis of Issue 4 on whether or not there had been a relevant breach of the duty of care owed by the defendant.

The defendant candidly conceded that his memory for recent past events was not perfect. That evidence was not necessarily inconsistent with his more detailed recall of specific events that had occurred in his dealings with the plaintiff. I draw no adverse conclusions on the defendant's credit concerning such matters.

Ms Hilder

The defendant read into evidence an affidavit sworn on 4 April 2014 by his practice assistant, Ms Jan Hilder. There was no challenge made to the stated observations of Ms Hilder. She was not required for cross-examination on the content of her affidavit. No adverse credit issues arose from her affidavit evidence.

Facts

Unless otherwise stated, my findings of fact are as follows.

Background events

The plaintiff had successfully worked in a variety of areas within the construction industry for many years as a self-employed builder. In that time he had shown considerable business acumen and he had built up an asset base. In his evidence he described his involvement in other businesses, including pawn-broking and in teaching students how to make leadlight windows: T38.13. He was also described in one of his documents as a document analyst: T249.36. A letterhead to that effect was initially marked as MFI "5" and later tendered by the defendant as Exhibit "1", Tab 14. The defendant submitted that this document misrepresented the plaintiff's qualifications and experience in that area. I did not see that as an issue that required resolution in these proceedings.

Between May 2000 and December 2002, the plaintiff had been engaged in what appeared from his own description to have been a turbulent and unstable de facto relationship with Ms Johanne Jones: T188.12. During that time, in 2001, the plaintiff had also employed Ms Jones in his business in a secretarial position: Exhibit "AAB".

The termination of that de facto relationship led to a dispute and to litigation concerning Ms Jones' claimed entitlements to damages pursuant to s 20 of the Property (Relationships) Act 1984.

Those circumstances were complicated by claims that Ms Jones was alleged to have taken funds belonging to the plaintiff in order to acquire three properties for herself. This resulted in the lodgement of caveats on those properties. Ms Jones had apparently been a signatory to the plaintiff's bank account, which apparently led to these circumstances. Those property purchases had also been financed by Ms Jones through borrowings: Exhibit "1", Tab 2.

The underlying dispute between the plaintiff and Ms Jones included allegations by the plaintiff that she had taken and dissipated the plaintiff's personal property, goods, tools of trade and other chattels amidst claims of disputed entitlement to those belongings.

The plaintiff has acknowledged that between 21 May 2001 and 28 October 2002, he had falsely receipted a number of tax invoices addressed to Ms Jones as having been paid by her in cash: Exhibit "AAJ"; T242.19. Those actions on the part of the plaintiff, which were necessarily apt to mislead, must be seen to reflect adversely on his credit.

On 22 December 2002, which was just two days after the relationship with Ms Jones had ended, the plaintiff had offered her a 50/50 split of his assets as a property settlement against a history of her alleged defalcations concerning his funds: Exhibit "1", Tab 12. That offer was not accepted by Ms Jones.

The plaintiff claimed that on 15 February 2003 he had been seriously assaulted and injured at his home by associates of Ms Jones, in her presence, and at her instigation, whilst those persons were engaged in removing his personal belongings, which Ms Jones claimed were her property.

The plaintiff claimed that some of these events had occurred in the presence of police officers who had been called to attend that disturbance. At that time Ms Jones had claimed that an ordinary statement of claim she had earlier issued had given her an entitlement to those chattels: Exhibit "AAL" pages 1 - 2. Ms Jones apparently proffered that document to the police as justification for her attendance at the plaintiff's premises to remove the chattels in question.

In those circumstances, the plaintiff claimed that he had been mistreated by certain unnamed police officers who had attended the premises in the course of the events on 15 February 2003. The plaintiff alleged misfeasance on the part of those police officers and claimed they had not intervened as they should have in order to prevent his personal property from being damaged and taken away from the premises.

Those matters were apparently the subject of complaints by the plaintiff to the Ombudsman and the Police Integrity Commission. The details and progress of those complaints was not developed in the evidence.

The evidence discloses that at 9.35pm on 15 February 2003 a police officer obtained an interim apprehended violence order for the protection of the plaintiff regarding any approaches to him by Ms Jones: Exhibit "AAN". This suggests that the police had in fact acted, at least in part, on the plaintiff's complaints about Ms Jones.

However, the plaintiff was clearly dissatisfied with the response of the police to the events of 15 February 2003, as is evident from a letter of complaint written on his behalf to the local inspector of police. On 18 February 2008, Mr Jeremy Rolfe, a solicitor whom the plaintiff had engaged for that purpose sent a letter of complaint on the plaintiff's behalf in respect of those matters: Exhibit "AAO".

In his evidence, the plaintiff complained of an alleged failure on the part of police officers to act on the fact that he had been seriously injured in the claimed assault, including the severing of tendons in his dominant right hand, which later prevented him from working, and which has resulted in him needing significant assistance with personal care concerning some of the commonplace activities of daily living due to his residual disabilities. There was no medical evidence tendered to identify or define those matters. As a result of those events, the plaintiff claims he has become a disability pensioner.

The foregoing events have led the plaintiff to become involved in multiple tranches of litigation with Ms Jones.

In May 2003, Ms Jones commenced litigation against the plaintiff in the Civil Claims Division of the Local Court. In those proceedings, statements were obtained on her behalf disputing some of the allegations made by the plaintiff concerning those events of 15 February 2003: Exhibit "1", Tab 22.

On 6 May 2003 the plaintiff made what appears to be a statutory declaration before a Justice of the Peace in which he declared that in the context of his engagement to marry Ms Jones, a property had been purchased at 31 Learmont Street, Willow Tree, in order to be developed as the matrimonial home: Exhibit "1", Tab 20. The content of that document was inconsistent with the plaintiff's oral evidence in which he downplayed description of his relationship with Ms Jones.

On 12 June 2003 Ms Jones obtained a judgment against the plaintiff in the Consumer, Trader and Tenancy Tribunal in the amount of $7,356 for allegedly defective building work to the premises at 31 Learmont Street, Willow Tree: Exhibit "1", Tab 1. The plaintiff had issues with the process by which Ms Jones had obtained that judgment.

On 30 July 2003, the plaintiff gave a statement to police in which he set out his version of the events of 15 February 2003: Exhibit "AAM". That version included an account of the assault upon him by unnamed persons on 15 February 2003: Exhibit "AAM", paragraphs [5] - [11]. That statement also included the plaintiff's account of him being arrested by police on the evening of 15 February 2003, after he had received hospital treatment for his injuries: Exhibit "AAM", paragraphs [12] - [13].

Subsequently, the plaintiff became involved in litigation with Ms Jones regarding personal and real property, including concerning the legitimacy of caveats lodged on certain properties. The plaintiff had solicitors other than the defendant acting for him in that litigation.

In early 2004, the plaintiff decided to obtain alternative legal advice due to his dissatisfaction with the progress of that litigation. This led the plaintiff to consult the defendant for professional advice.

Commencement and disputed scope of defendant's retainer

The plaintiff first made contact with the defendant by telephone on 24 January 2004. There were differing accounts between the parties concerning the nature of the plaintiff's subsequent retainer of the defendant.

On 18 March 2004 the defendant made a sketchy handwritten file note of his telephone conversation with the plaintiff: Exhibit "A". That note, which was not transcribed or explained in detail in the oral evidence, remains necessarily difficult to decipher. It cannot be regarded as being definitive of the matters discussed on that occasion. I do not interpret that note as providing any evidence of instructions for the defendant to pursue a claim against the police or the plaintiff's assailants in relation to the events of 15 February 2003, although in part, it refers to other litigation, and to other legal representation.

In contrast to the evidence of the plaintiff, the defendant claimed that the conversation he had with the plaintiff on 18 March 2004 related to the plaintiff's legal problems arising from his former de facto relationship with Ms Jones, and not concerning claims against the police and against his assailants: T360.9-50.

That first conversation between the parties was not definitive because the defendant could not completely follow the plaintiff's conversation due to the plaintiff's apparent agitation at that time, and because he was speaking quickly: Defendant's affidavit sworn 4 April 2014, paragraph 8.

The defendant did not agree to take instructions from the plaintiff until he had received a signed costs agreement from the plaintiff: Defendant's affidavit sworn 4 April 2014, paragraph 10.

On 23 March 2004, the defendant wrote a long letter to the plaintiff summarising the factual content of their communications, including the instructions he had received by way of facsimile from the plaintiff: Exhibit "D". That letter also noted the involvement of other lawyers who had been acting in the plaintiff's interests in other litigation. It cannot be concluded from this letter, that at that time, and before the execution of the defendant's costs agreement, that the defendant had in fact been retained by the plaintiff: Exhibit "D", page 2, last paragraph.

On 30 March 2004 the defendant sent the plaintiff a copy of what he described as his standard costs agreement: Exhibit "C". That agreement was sent to the plaintiff under cover of the defendant's letter of the same date: Exhibit "B". From that time the defendant regarded himself as having been retained by the plaintiff and he then wrote to other solicitors acting for the plaintiff on his property issues concerning caveats: Exhibit "E".

The written terms of the defendant's retainer were set out in Exhibit "C" as follows:

"1. THE WORK

The work you require Andrew Cohen (and his staff, where applicable) is as follows:

A. Name of person(s) or corporation(s) for whom Andrew Cohen will be acting as solicitor:- NOEL MARTIN.

B. Other party(s) likely to be dealt with (if any):-

Ms Jones, Mr. Hrobat and their legal representatives (and possibly legal disciplinary bodies).

C. Summary of likely work and/or client's requirements:- With respect to Jones' litigation in the District Court, all matters of negotiation, litigation and advices, including briefing counsel from time to time, if applicable and as instructed; preparing evidence, pleadings, documentation, attendances at Court; dealing with valuers; other experts; conducting searches and, potentially, many other things, as advised to you from time to time; plus all matters pertaining to any complaints you may have against your former solicitor."

[Emphasis as in the original]

The reference to Mr Hrobat in the above costs agreement related to the plaintiff's former solicitor, Mr Daniel Hrobat, who had been retained to assist the plaintiff with his de facto relationship litigation involving Ms Jones.

Over time, voluminous correspondence then flowed between the plaintiff and the defendant, as is evident from the exhibits. It is not necessary to here summarise all of that correspondence other than to say that nowhere in that correspondence is there any indication that the plaintiff had actually taken steps to seek to further expand his initial retainer of the defendant by writing to that effect.

In particular, there is no evidence to suggest that the defendant had acknowledged that he had been retained to assist the plaintiff to pursue legal redress and compensation from various potential defendants arising from the events of 15 February 2003.

On this topic, the parties gave very different accounts of their understanding of the defendant's retainer.

The plaintiff was adamant that the defendant had been retained to provide professional services in relation to the events of 15 February 2003, including claims for damages against his assailants and against the police as previously described. The plaintiff's claim was that the defendant had agreed to act on those matters, including by saying he would "sue anybody": T42.35; T90.40.

The plaintiff further claimed that the defendant had told him those additional matters would be taken up when the more immediately pressing litigation concerning caveats and the de facto relationship had been completed: T91.49. The plaintiff claimed the defendant had told him those further actions would be taken up after Christmas 2004, when the other litigation was expected to have been completed: T92.5. The plaintiff claimed he had incurred a series of losses because that Christmas 2004 estimate had not been met, and that his subsequent losses had arisen because he had relied on that estimated completion time. Those alleged losses require analysis, as to both quantification by evidence, and remoteness.

In contrast, the defendant denied the plaintiff's assertions and maintained that his retainer was limited to the de facto relationship issues, to the caveats on the disputed properties, and the plaintiff's personal property allegedly taken by Ms Jones.

The defendant was adamant that he had never been given instructions to sue the police: T365.47. Furthermore, the defendant said he was never given instructions in respect of a sustainable case against the police: T363.46. The defendant's reference to a sustainable case suggests there was at least some discussion about a potential claim against the police.

The defendant conceded that he would have taken instructions to sue anyone against whom a reasonable case could be maintained: T363.46. He stated that the plaintiff's claim concerning the events of 15 February 2003 did not fall into that category because he was dubious about the case, especially as the assailants were not identified to him (T361; T362) and because the plaintiff's account as to the number of assailants had changed: T362.21. The defendant's reference to changed instructions also suggests that there was some discussion about the possibility of suing the police.

In determining the extent and content of the defendant's retainer I must have regard to the oral evidence of the parties and to their written communications.

It is also relevant to note that until the defendant was fully instructed on the de facto relationship litigation between the plaintiff and Ms Jones, the plaintiff continued his dealings with his then solicitor, Mr Daniel Hrobat: Exhibit "1", Tabs 10 and 11. The extent of Mr Hrobat's retainer was not in evidence in these proceedings.

In the present proceedings the defendant points to the content of Exhibit "1", Tab 10, a letter sent to the plaintiff by Mr Hrobat on 25 March 2004, to show that the plaintiff had given varying instructions to Mr Hrobat over time. The defendant argued, correctly in my view, that this reflected adversely on the plaintiff's reliability as a witness. Tab 10 of Exhibit "1" included the following extract of the advice from Mr Hrobat to the plaintiff:

"...

1. The proceedings which would ensue under the Amended Statement of Claim and which bring into play the Property (Relationships) Act 1984 NSW, do not envisage a claim whereby damages or other pecuniary claims may be pleaded and pursued. The proceedings effectively determine a distribution or apportionment of property in situations where a de-facto relationship has broken down and distribution is dependant on the contributions made by each party during the relationship;

2. As your instructions presently stand, the motive behind the expansion of the claim may be construed as an abuse of process and in this regard we agree with counsel's view that such a proposal could not be entertained on ethical grounds;

3. It is counsel's view, with which we agree, that evidence in proper form, simply does not exist to prove ownership of every single item listed, nor proof that each and every single item was stolen by Jones. In any event to attempt to prove, even if it was possible to include such a claim in the proposed proceedings, would unnecessarily prolong the proceedings and the possibility of having this matter determined as soon as possible would be lost;

4. Your prospects of success in these proceedings are enhanced by going "forward on the basis of a primary claim by which you seek the return of certain real estate currently held in the name of Ms Jones, release from any future claim by Ms Jones over certain real estate held in your name and global orders dealing with an accounting for and return of personal property in the possession of the respective parties but said to be owned by the other." This has been discussed with you on several occasions and to which you agreed;

5. The change in instructions will not only prolong the determination of this matter but will extend the time the caveat remains in place on your property at Willow Tree, which in our view is self-defeating. Additionally, and more damaging to your cause is the fact that your change of instructions may cause us to miss the May 2004 sittings of the East Maitland District Court;

6. The probability of actually recovering the list of items or most of them is, as you have recognized on several occasions, remote and therefore self-defeating.

7. Costs would be substantially increased.

We would add that we agree entirely with the observations of counsel in his above letter. Moreover, you have placed us in the unenviable position whereby if you decide to ignore or decide not to accept our advice in this matter we will have to consider our position as to whether, on ethical grounds, we are able to continue to act for you in this matter.

This matter, as you are aware, is listed for a further status conference before the District Court at Scone on Friday 26 March 2004, at 9.30am. We have alerted Mr Michael O'Connor to be available to appear on your behalf as our agent. It will now be very difficult if near impossible to have the matter listed in the East Maitland Court sittings in May, however we may be able to request the Registrar to appoint a further short time- table to enable us to file the necessary documents, for the defendant to reply and still have sufficient time to be listed for hearing in May. This we will only be able to confirm after tomorrow's status conference.

If you do not wish us to proceed on that basis, please advise us in order that we may inform Mr O'Connor."

It is plain from the above account that there were significant delays encountered by the plaintiff in completing the de facto relationship litigation because of events that occurred before the defendant had been engaged: Exhibit "1", Tab 3. This included the compounding effect of the stated inaccuracies and changes within the instructions the plaintiff had given at various times: Exhibit "1", Tab 4.

The plaintiff sent the defendant voluminous documentation by facsimile and by post at irregular intervals over the course of some weeks. The plaintiff told the defendant that he was giving the defendant those documents but he also told the defendant not all of them needed to be read, and he identified the files he wanted read, leaving the others to be held in case they became necessary: Defendant's affidavit sworn 4 April 2014, paragraphs 12 - 13.

Significantly on 30 April 2004, following the receipt of voluminous documentation from the plaintiff, the defendant wrote the following indication of his position to the plaintiff on the question of his retainer:

"7. Frankly, the material you have supplied is appreciated but a bit too much as it was necessary for me to read nearly all of it and decide which material was relevant to the case against Jones, which material was relevant to your forthcoming complaint against Mr. Hrobat and which material I could ignore, either for the time being or permanently."

It is plain from the above statement that the plaintiff ought to have realised that the defendant was only dealing with the plaintiff's existing de facto related litigation with Ms Jones, and possibly some issues concerning one of the plaintiff's former solicitors, but not the wider issues the plaintiff was contemplating concerning a claim of compensation arising from the events of 15 February 2003, as was asserted by the plaintiff.

In fact the plaintiff's correspondence to the defendant focussed upon property and accounting issues concerning the de facto relationship claim: Exhibit "1", Tabs 16 and 18. That focus continued throughout, from May 2004 and until the termination of the Supreme Court proceedings between the plaintiff and Ms Jones in 2006: Exhibits "AE"; "1", Tab 13; "AAF"; "AAC"; "F"; "K"; "G"; "Z"; "W"; "Q"; "AA"; "AL"; "AZ"; "1", Tab 7; "AM"; "AN"; "AO"; "1", Tab 8; "AY"; "AF"; "1", Tab 18; "M"; "N".

The documentary exhibits show that some of the defendant's correspondence to the plaintiff was responsive to correspondence the plaintiff had sent to him. The plaintiff tendered the defendant's correspondence addressing issues the plaintiff had communicated to the defendant. However, some of the plaintiff's correspondence to the defendant, which generated that correspondence, was not in evidence. Examples of this are Exhibits "D" and "AJ". This adds a layer of difficulty to construing the relationship between the parties in terms of the scope of the work agreed to be undertaken by the defendant on the plaintiff's behalf.

On 30 April 2004 following a conference with the plaintiff, the defendant, and his counsel Ms Cohen, the plaintiff gave instructions which resulted in Ms Cohen drafting an amended District Court Statement of Claim in the plaintiff's de facto relationship litigation. In those instructions, the plaintiff agreed to abandon his claim for his chattels allegedly stolen by Ms Jones. He took that pragmatic position on advice that included considerations of the affordability of the litigation where many individual items were involved and pragmatic considerations as to whether, realistically, those goods still existed: Defendant's Affidavit sworn 4 April 2014, paragraph 22.

At that time, the focus of the parties was on the properties in issue, and the need to obtain removal of the caveats in force in respect of that property.

At around that time Ms Jones had tried to sell the property in question, the purchaser's solicitor pursued a summons for specific performance in the Supreme Court against Ms Jones and the plaintiff, and also seeking the removal of the caveat on the property and for transfer. The plaintiff had crossclaimed against Ms Jones in those proceedings. The defendant acted for the plaintiff in those proceedings, as did Ms Cohen.

On 27 May 2004, in those proceedings, White J ordered the caveat to be removed. A costs order was made against Ms Jones and the plaintiff, but the plaintiff obtained an order that Ms Jones indemnify him in respect of those costs: Defendant's affidavit sworn 4 April 2014, paragraphs 30 and 31.

In the meantime, the plaintiff was experiencing financial difficulties and on 15 June 2004, he was unable to complete the related conveyancing transaction. He wrote to the defendant to advise that he was now subject to a binding penalty clause imposing a penalty of $4931.82 per day: Exhibit "AAD". At that time the plaintiff was anxious to settle to avoid incurring losses, and indicated this position to the defendant: Exhibit "AAF". Without co-operation from Ms Jones, the defendant could not have done much for the plaintiff along those lines.

These circumstances will be further examined in connection with my consideration and findings on Issue 1 concerning the scope of the retainer of the defendant and Issue 6 concerning the assessment of damages.

Rent claim

The plaintiff complains that the defendant had failed to pursue a claim against Ms Jones for non-payment of rent on the premises at 31 Learmont Street, Willow Tree, which she occupied as a result of the purchase of that property with his funds. There is evidence that Ms Jones may have let part of the premises for $80 per week. The plaintiff wanted Ms Jones to account for those funds.

The difficulty for the plaintiff with that claim is that the premises in question comprised part of the divisible property in dispute in the de facto relationship proceedings. Furthermore, the sole registered owner of those premises in the period comprising the argued claim for rent was Ms Jones. As such, the plaintiff's argued claim for rent in these proceedings could not have been maintained by the plaintiff as against the registered owner of the property, Ms Jones.

Noting that the defendant had briefed counsel, his sister, Ms Cohen, to draft an amended statement of claim on behalf of the plaintiff, neither party asked Ms Cohen any questions about the rent issue in these proceedings. Furthermore, the plaintiff did not materially cross-examine the defendant on that specific topic.

Delays in previous District Court litigation

In the course of the defendant's representation of the plaintiff's de facto relationship proceedings there was acknowledged delay and consequently, the plaintiff's time expectations for the completion of the litigation had not been met. This appeared to be in part due to shortcomings in the communications from another solicitor, a Mr Curran, whom the defendant had engaged to act as his agent to appear at a call-over, and other matters: Exhibit "AA"; 22 November 2004.

Whilst there were issues of delay in progressing the de facto relationship proceedings, other delays had also been incurred because the defendant had not been fully funded by the plaintiff to undertake work on his behalf: Exhibit "AG"; "L"; "X"; "Y".

Claimed delay over costs assessment

There was also a delay in the plaintiff obtaining the benefit of a judgment for costs in the amount of $11,145.11 in the earlier specific performance and removal of caveat proceedings before White J. Those proceedings related to the plaintiff's application to remove caveats lodged by Ms Jones following the issuing of lapsing notices.

The plaintiff had apparently set some store by a strategy to secure an early judgment for indemnity costs against Ms Jones. His goal was to try and have her declared bankrupt with the anticipated result that an appointed trustee in bankruptcy, or ITSA, may not have permitted her to proceed with the existing litigation in the District Court concerning the de facto relationship issues.

As it turned out, that strategy failed for a number of reasons.

First, it was not part of the defendant's retainer agreement that he be required to prepare a bill of costs for the caveat proceedings, and the plaintiff had declined to pay for external costs consultants to be engaged to undertake that task: Exhibit "C", page 5; T310.5 - T310.18. Delay also occurred whilst the plaintiff and the defendant negotiated a mutually acceptable way forward on that necessary step of preparing a bill of costs for assessment: T380.27; T381.16; T381.47; T382.5; T404.15.

Secondly, in September 2004, after the defendant had relented in response to pressure from the plaintiff, he agreed to prepare the bill himself. He eventually agreed to have it done by the end of 2004, but not earlier because he had other priorities. Although the defendant honoured his commitment in that regard and completed his bill by 23 December 2004 (Exhibit "AAO"), further delay then occurred over the ensuing four months, during which time, inexplicably, the plaintiff failed to provide the defendant with the relatively small filing fee that was required to enable a costs assessment to proceed. Those circumstances compounded any delay incurred to that point.

Thirdly, during the assessment process, there were further unforseen compounding delays that occurred whilst requisitions raised by the Costs Assessor were given the required attention. These included delays encountered by the defendant in obtaining the precise terms of the orders made by White J in the Supreme Court caveat removal proceedings.

Fourthly, there was also a delay in enforcing a Certificate of Determination of assessed costs for those proceedings. A clerical error had become incorporated into the title documents in the costs assessment. This factor had caused some months of delay whilst the defendant strove to overcome that difficulty by unsuccessfully approaching the Costs Assessor (who had by then retired) and the Supreme Court costs assessment officials, in his repeated attempts to rectify the problem.

This latter delay in obtaining a judgment for costs against Ms Jones occurred because the Certificate of Determination of the Costs Assessor had been erroneously issued in the name of Noel James Martin and not Noel Charles Martin, which was the plaintiff's actual full name. The Costs Assessor was unable to assist as he had retired.

It was not until December 2005 that an innovative solution to that problem had been found by the defendant. This was by registering the judgment as being in favour of "Noel James Martin also known as Noel Charles Martin" on 23 December 2005. The enforcement problem was therefore overcome: Exhibits "P"; "R"; "T"; "U"; "V".

This latter component of delay occurred for several reasons. The defendant's agreement to undertake the preparation of the plaintiff's bill of costs for assessment also included an agreement that another bill of costs that had been prepared for the plaintiff by other solicitors who had acted for him would be used by the defendant as a template or precedent, as he had no experience in such matters.

When that precedent came into the hands of the defendant, he did not notice that the plaintiff's middle name had been incorrectly described as being James instead of Charles. The error was replicated in the plaintiff's costs assessment documentation: Exhibit "H". The defendant freely acknowledged this error: T373.7. The question of whether anything turns on this will be examined in the considerations of Issue 4.

Significantly, that error persisted with the knowledge of the plaintiff. Despite the fact the defendant had forwarded the document incorporating the erroneous name to the plaintiff for comment, the plaintiff had failed to draw the defendant's attention to the detail of the clerical error. I accept the defendant's evidence in that regard, where he stated that although the plaintiff had queried the document, the plaintiff had nevertheless failed to respond to the defendant's subsequent enquiry as to the nature of the problem that was apparent to the plaintiff, but not to the defendant: T313.18 - T313.30. The plaintiff's failure to respond was not explained.

Those events inevitably delayed the issue of any planned bankruptcy notice to Ms Jones for the non-payment of the assessed costs.

The plaintiff claimed the resultant delay in him being able to enforce a costs assessment against Ms Jones had caused him to suffer considerable financial loss. The defendant's position is that those claimed losses were remote, and otherwise not reliably quantified by the plaintiff.

Resolution of Supreme Court Equity proceedings

The de facto relationship litigation between the plaintiff and Ms Jones that had been commenced in the District Court at Scone was transferred to the Equity Division of the Supreme Court.

In those proceedings, the plaintiff sought equitable relief in the alternative to orders pursuant to the Property Relationships Act 1984, relating to three properties registered in the name of Ms Jones: Exhibit "AAE" page 1.30.

The proceedings had to be transferred to the Supreme Court because of concerns over limits on the equitable jurisdiction of the District Court, and because of problems that were said to be related to previous variations and inaccuracies in the plaintiff's instructions given to his solicitors, both before and during the defendant's retainer: T316 - T317; T319 - T320.

The defendant had prepared the Supreme Court proceedings on the plaintiff's instructions. He had briefed his sister, Ms Cohen, as counsel for the plaintiff, and he was relying upon her to appear at the hearing.

In the lead-up to the hearing, understandably, Ms Cohen indicated that she required security for the payment of her fees. Her requirements for securing her fees could not be met, and therefore, on 6 February 2006, she withdrew from the proceedings. This occurred seven days before the hearing was due to commence. Although Ms Cohen had expressed concern over her fees as far back as October 2005 (Exhibit "X") the defendant was completely surprised by her stance of requesting security. Despite his professional and personal entreaties, the defendant was unable to alter her stance in that regard. Those circumstances caused a lasting professional rift between the defendant and Ms Cohen: T376.50.

In the circumstances, the defendant felt unable to obtain the services of other counsel, especially where it was plain that there were no satisfactory arrangements that could be made to secure counsel's fees. The plaintiff had not funded the defendant for the litigation. In those circumstances, after the defendant properly disclosed to the plaintiff his own limitations in his experience of conducting such proceedings, the plaintiff nevertheless instructed the defendant to appear for him as his advocate in the Supreme Court proceedings in the absence of Ms Cohen: T323.6; Defendant's affidavit sworn 4 April 2014, paragraph 62.

Although the plaintiff was concerned about the withdrawal of counsel, he obviously agreed that the defendant should continue despite that withdrawal, and the plaintiff attended the defendant's office on 8 February 2006 to assist in the preparation: Exhibit "AB".

The defendant's preparation then continued, including keeping the plaintiff informed of progress and developments, also including reports of conversations with Ms Jones, and the effect of recent directions from the trial judge: Exhibit "AC".

The defendant then undertook intensive preparation for the hearing of the Supreme Court proceedings. This is also evident from the skeleton argument he had prepared in order to advance the plaintiff's case (Exhibit "AP") and from the defendant's notes to file: Exhibit "AD".

Those proceedings went to a hearing before Rein J between 13 and 17 February 2006, at which time a compromise settlement was formalised by orders that were made by consent.

The transcript of those proceedings, comprising 228 pages, was in evidence in these proceedings: Exhibit "AAE". The plaintiff and Ms Jones gave conflicting evidence on the issues for determination in those proceedings.

The Equity proceedings were complicated by the disputed positions taken by the parties to that litigation as to the duration of time over which the de facto relationship had subsisted between them, and other matters. In those proceedings, the plaintiff gave evidence that it was his apprehension that Ms Jones was without assets, and that she would be unable to meet any costs, and by implication, damages, that might be awarded against her: Exhibit "AAE" pages 9.25; 42.44; 75.28.

In those proceedings the plaintiff was prepared to abandon his claim in respect of the chattels he alleged had been taken by Ms Jones: Exhibit "AAE" page 18.23; Exhibit "AP". Furthermore, the plaintiff gave evidence in those proceedings that in his opinion there was no possibility of him recovering the items comprising his property that he claimed had been wrongfully taken by Ms Jones: Exhibit "AAE" page 75.21.

On the fourth day of the hearing, after evidence had been given by the plaintiff and Ms Jones, Rein J reiterated his encouragement to the parties to explore the possibility of settlement: Exhibit "AAE" page 219. This was in the face of credit attacks, allegations of forged documents, questions over the probity of documents provided to Centrelink, and a range of competing and disputed factual positions.

On 16 February 2003, the parties took up the suggestion by Rein J to pursue settlement discussions. Some time was then given to the parties, which resulted in them reaching an agreement to resolve those proceedings: Exhibit "AAE" pages 219 to 228. The fact that a settlement in principle was reached was communicated to the Court.

Until that agreement had been reached, the areas of dispute in those proceedings had encompassed personal property, real property, the caveats that had been lodged on real property, some liability for state taxes, and legal costs.

The consent orders were prepared overnight: T226.11. These consent orders were then made by Rein J on 17 February 2006. This had the effect of terminating the Equity proceedings.

The effect of the settlement was that apart from providing mutual releases, the plaintiff had secured the transfer of the property he was claiming from Ms Jones so that he became the sole owner.

In return, the plaintiff released Ms Jones from certain claims, including indemnity costs orders made against her in Supreme Court proceedings numbered 3174 of 2004, and in costs proceedings numbered 2005/91338, and he withdrew his bankruptcy notice against Ms Jones being No NN 131/06. He also released Ms Jones from liability under a judgment he had obtained against her at Manly Local Court in proceedings 1248/05, and he also agreed to arrange for the dismissal of the proceedings numbered NSD 167/2006 that had been instituted in the Federal Court.

In addition to transferring the property in contention to the plaintiff, Ms Jones also released the plaintiff from his liability under a judgment she had obtained against him in the CTTT in 2003. Finally, each party agreed to pay their own costs of the settled proceedings.

The unchallenged evidence of the defendant's practice assistant Ms Hilder was that on either the Thursday or the Friday of the hearing of the Supreme Court proceedings (which I infer would have been at the time when the case was settled either in principle if not in fact) the plaintiff and Miss Findlay were seen by her to have been smiling and laughing, and in apparent high spirits: Affidavit of Ms Hilder sworn 4 April 2014, paragraph 12.

That unchallenged factual description requires consideration and reconciliation with the evidence of the plaintiff and Miss Findlay to the effect that the plaintiff was allegedly coerced into settling the Supreme Court proceedings. This is a matter to which I shall return in the consideration of Issue 2.

Post-settlement events

After the settlement orders were made in the Equity proceedings it appears that the plaintiff discovered that Ms Jones had taken goods and fittings from the property in question and which the plaintiff claimed should not have been taken, as this was contrary to the settlement orders.

These circumstances led to further correspondence and communication from the plaintiff to the defendant to see what could be done about those circumstances as the plaintiff had suffered losses as a result of such removal of items.

At some stage after the settlement, on a date which does not appear from the evidence, the plaintiff withdrew his instructions from the defendant in respect of the proposed sale of the properties the subject of the Supreme Court Equity litigation: Exhibit "AR", page 2.

At that time, the defendant raised questions concerning the payment of his outstanding fees as was provided by the deed entered into between the parties.

Between 12 April 2006 and 19 April 2006 the defendant attended to correspondence with the plaintiff's other solicitor, Dr Michael O'Connor of the firm of solicitors Bamford Marcellos O'Connor concerning the sale of the properties that were the subject of the Equity proceedings: Exhibits "AQ" and "AR".

Subsequently, according to Exhibit "AW", on 15 May 2006, the plaintiff wrote to the defendant in the following terse terms:

"Dear Andrew,

During Supreme Court proceedings, 13th 17th February 2006, during a break, you produced a hand written agreement for me to sign, stating that I had three minutes to agree and sign or you were not going back into court.

That agreement was signed, dated and the time noted on the document.

I require a copy of that document immediately.

I suppose these issues we are addressing are what you term "sweeping up behind my big sister", to which you refer. I would however like to see your sweeping up brought to a close without having to do a "full house clean" myself.

Your Truly

Noel Martin"

[Emphasised text as in the Exhibit].

That letter from the plaintiff to the defendant was the forerunner to the current litigation.

The full course of subsequent correspondence has not been tendered but it appears that on 24 May 2006 the defendant was still trying to resolve the question of some residual funds of the plaintiff that remained in his trust account and he wrote to the plaintiff in that regard: Exhibit "AS".

The plaintiff apparently sent a facsimile letter to the defendant on 30 May 2006 of unknown content. The defendant's reply dated 31 May 2006 indicated he was still trying to effect registration of property transfers but needed the address of Ms Jones: Exhibit "AT".

On 2 June 2006, the defendant wrote to the plaintiff seeking two cheques for $77.25 each to enable him to proceed with the registration of the property transfers: Exhibit "AU". That date also signalled the final distribution by the defendant of funds due to the plaintiff.

On 7 August 2006, the defendant wrote to the plaintiff noting, amongst other things, that the plaintiff did not intend to pay him his outstanding account, and that account was apparently to be the subject of a solicitor and client costs assessment: Exhibit "AAR". The ensuing bill of costs for that assessment was comprehensive: Exhibit "O"; Exhibit "AAA".

The last professional communication from the defendant to the plaintiff was a postscript to the above letter informing the plaintiff that the Office of State Revenue had advised the defendant that it was contemplating bankruptcy proceedings against the plaintiff for non-payment of fees that were due under the settlement of the Supreme Court Equity proceedings: Exhibit "AAR".

In the present proceedings the plaintiff now complains that the defendant had improperly coerced him into a settlement of the Supreme Court proceedings. He further alleges that the settlement occurred in circumstances where his case had not been properly prepared by the defendant, and that the defendant had an improper motive in settling the case on that account. The plaintiff relied upon the evidence of Miss Findlay to the extent that it could corroborate his position concerning such allegations.

The defendant vehemently rejected all allegations of coercion or impropriety on his part. These matters will be the subject of the consideration of Issue 2 and Issue 4.

Issue 1 - Relevant scope of the defendant's retainer

For the reasons that follow, I am not persuaded that the plaintiff's retainer of the defendant as his solicitor went beyond the cited text in the defendant's cost agreement comprising Exhibit "C" which I have already cited at paragraph [85] above.

First, I am not convinced of the plaintiff's evidence to the effect that he instructed the defendant to pursue civil claims for damages arising from the events of 15 February 2003. This is because such instructions are not reflected in the contemporaneous correspondence that has passed between the parties. On the balance of probabilities, I find that whilst the plaintiff believes he gave such instructions, I consider the defendant's denial of that proposition is more likely to be the correct account of events.

Secondly, given the defendant's stated attitude to adhering to the requirements of the cost agreement regime required by the Legal Profession Act 2004, I consider it most unlikely that the defendant would have regarded his costs agreement with the plaintiff in March 2004 as set out in Exhibit "C", as being an all-encompassing retainer for a disparate range of litigation matters.

Thirdly, given the particularity and the thoroughness with which the plaintiff has shown to have been his method of attending to matters of detail, his failure to clarify or to seek to extend the terms of Section B of the costs agreement comprising Exhibit "C" either orally or in writing, is a telling factor against the construction of the retainer argument that he now seeks should prevail.

In coming to those views, I have not overlooked the evidence of Miss Findlay on the subject of the scope of the defendant's retainer. However, she was hazy or vague on some of the specific details of the interchanges that passed between the plaintiff and the defendant on the scope of the retainer concerning a proposed action against the police: T274 - T276; T293.28.

However, Miss Findlay was specific on one detail. She claimed that on an uncertain date she had been present when the defendant had said to the plaintiff the he would tell the plaintiff when he thought it was time to sue the police: T275.49 - T276.3. She said she could recall a conversation in the defendant's office about the police: T293.15 - T293.30. Her evidence was that the defendant said something like "I'll deal with the police when I've dealt with the Jones matter. I'll tell you when it is time to sue the police": T294.10 - T294.14.

The defendant denied that a conversation had taken place in those terms.

The defendant stated that at no time did he consider he had instructions to sue the persons who assaulted the plaintiff on 15 March 2003; or to sue the police in relation to their involvement in the circumstances of that day: Defendant's affidavit sworn 4 April 2014, paragraphs 36 and 38.

In support of that position, it is noteworthy that in his letter to the defendant dated 26 May 2004, the plaintiff made no mention of needing advice or assistance with a claim against his assailants and the police.

This is significant because he had represented himself in respect of carrying forward his complaints against the police.

The plaintiff's letter dated 28 April 2004 is also noteworthy because it listed the persons against whom he wanted redress. Those persons included a barrister who had previously acted against his interests, some property purchasers who were seeking specific performance against him, Ms Jones, and four other solicitors. That letter had a stern tone of grievance, yet in it, the plaintiff made no mention of any proposed actions against the police or the plaintiff's assailants: Exhibit "AC3" exhibited to the defendant's affidavit sworn 4 April 2014, page 45.

Also of significance amongst the plaintiff's written communications is his letter to the defendant dated 3 January 2005 in which he listed his request for a plan of action against named persons, those being Ms Jones and two solicitors. No mention was made of any action arising from events of 15 February 2003: Exhibit "AO", page 2.

In weighing the competing accounts on the retainer issue, I consider that Miss Findlay's evidence should be discounted and should not be accepted as probative corroboration of the plaintiff's assertions on the retainer issue. This is because of her alignment to the plaintiff's cause as already identified, and because of the vagueness of her evidence on this point, which, in combination with the credit findings I have already identified, makes this evidence unreliable.

I consider that on the balance of probabilities the defendant's account of his retainer is more likely to be correct. I therefore reject the evidence of the plaintiff and Miss Findlay that asserted the defendant's retainer included instructions to bring a civil claim against the police and other defendants arising from the events of 15 February 2003.

The unchallenged affidavit of Ms Hilder sworn 4 April 2014 stated that in the course of her duties in the management of the plaintiff's file for the defendant, her understanding was that the case was about a de facto relationship dispute involving Ms Jones. She had no recollection of opening a file or viewing correspondence that dealt with any claim by the plaintiff relating to the New South Wales Police: Affidavit of Ms Hilder sworn 4 April 2014, paragraph 6. I consider that if the defendant had been given instructions to pursue such a matter, Ms Hilder would have been likely to have known about it.

I infer from the evidence of Ms Hilder that the defendant had not opened up a case file for the plaintiff in relation to that matter. This leaves open the question of whether the defendant had either refused to do so, or had failed to do so. I do not accept the plaintiff's evidence or argument to the effect that the defendant failed to do so.

I accept the defendant's evidence that he did not do so because be did not consider the plaintiff to have had a sustainable case in that regard, and because he had no instructions to do so: T365.47.

It was the defendant who would have been required to sign a certificate of arguable merit pursuant to s 347 of the Legal Profession Act 2004. He was not questioned on the basis of his belief that the plaintiff had no sustainable case. The elements of what constituted available evidence in support of an arguable case against the police, Ms Jones, and his assailants, were not put to the defendant in crossexamination.

I consider that the plaintiff's evidence to the contrary of the defendant's position as outlined above is based on a misapprehension of the events, which he has conveniently reconstructed to advantage himself in this case.

In coming to those views I have not overlooked the fact that the plaintiff had, in the lead-up to the Supreme Court Equity proceedings, from time to time, left considerable quantities of paper files with the defendant.

The defendant believed, for the reasons he has stated, that he was given those papers for safekeeping and that he did not see his role as requiring him to analyse all those papers for relevance to the tasks on which he had been professionally engaged. He said, and I accept, that he was relying on the plaintiff to identify the relevant material. In that regard, it is clear that the plaintiff had costs considerations in mind when asking the defendant to look at his papers: T367.8. I consider the defendant's explanation in that regard to be a reasonable and acceptable one in the circumstances of his professional dealings with the plaintiff.

On the evidence I therefore find that the plaintiff's engagement of the defendant as his new solicitor in March 2004, and subsequently, was limited to the defendant carrying out legal work in relation to the plaintiff's de facto relationship issues, and the related property issues. I find that this retainer did not include any request or instructions to undertake legal work concerning the plaintiff's potential claims for civil damages against various parties, including his assailants and the police, arising out of the events at his home on 15 February 2003. The plaintiff's reliance on Exhibit "AAS" (Solicitors Rule 1) has to be viewed in that light.

Matters concerning the duty of care the defendant owed to the plaintiff, its scope, and whether there was any breach of that duty, have to be evaluated in the light of these findings.

The touchstone for judging negligence is reasonableness. Having regard to the requirements of s 5B of the CL Act, I do not consider that the described delays in the litigation and the error complained of by the plaintiff amount to or justify a finding of negligence on the part of the defendant.

(4) Alleged inadequate preparation of litigation

The plaintiff made vaguely expressed claims that his Supreme Court proceedings that were ultimately resolved on 17 February 2006 had been inadequately prepared. The plaintiff further asserted that the defendant had little understanding of what was expected of him in relation to that matter: T115 - T116.

The plaintiff could not identify any aspect of alleged inadequate preparation for the trial in the Equity proceedings.

The evidence discloses that at the time Ms Cohen returned her brief to the defendant in those Equity proceedings, in her view the case had already been prepared for a hearing: T261.38. That evidence was unchallenged and it was not glaringly improbable. It appears that the only things left to be done to advance those proceedings was to prepare the witnesses for giving evidence, to marshal relevant documents for tendering as exhibits and to prepare the required arguments in support of the plaintiff's case.

In that regard, as soon as Ms Cohen returned her brief to the defendant, the plaintiff was in the defendant's office the next day to assist the defendant with his preparation of the case for trial: Exhibit "AB".

The transcript of those proceedings does not reveal any inadequate preparation: Exhibit "AAE". The plaintiff could not point to any evidence to identify any specific shortcoming in the preparation of his case for trial.

An allegation of inadequate preparation is a very specific one which, for acceptance, requires particularity of evidence which is absent in this case.

Such allegations are to an extent subjective and difficult to evaluate without undertaking a survey of the defendant's file and the evidentiary documents in the file against the backdrop of the forensic or tactical decisions made in the course of preparation for trial. Those matters were not exposed for scrutiny in these proceedings, either through expert evidence, or by pointing to specific supporting facts founded in the evidence.

In arriving at that view, I have not overlooked the plaintiff's complaint that he "had no indication of what to expect from the Supreme Court proceedings until they were finalised": T443.49. In that regard he claimed there was no "revised plan...timeframes...projection of what the costs may...be". In view of my credit findings relating to the plaintiff, I consider that submission must be viewed with caution and not accepted without a review of the relevant documents. This is so particularly since matters of supporting detail that would ordinarily be expected to have been canvassed with the defendant in cross-examination were absent.

These are matters upon which the plaintiff carried the onus of proof: s 5E of the CL Act. In my view, such proof was entirely absent in this case.

Even if I am wrong in that conclusion, I consider that the plaintiff faces another insurmountable difficulty.

From 7 February 2006 onwards, the defendant assumed the role of the plaintiff's advocate. It is beyond controversy that advocates are at times called upon to take on a brief at short notice and apply themselves to the preparation that is required to achieve readiness for trial.

In this case, the defendant disclosed to the plaintiff his relative inexperience as an advocate. Following that disclosure, which was properly made, the plaintiff then acquiesced to the defendant taking on that role. Whatever relative inexperience the defendant had in that regard, a prospective review of the evidence does not identify or reveal any material shortcomings in the defendant's preparation for trial.

Even if such shortcomings were demonstrated, the plaintiff would have to show that these were below the acceptable parameters of variation in trial preparation having regard to what could be expected of advocates of ordinary skill and competence. In this case, the plaintiff is unable to demonstrate any relevant departure from the expected standard at any point within that spectrum.

(5) Alleged inadequate representation in the Equity proceedings

Allegations of inadequate representation at trial must be viewed in the context of the immunity afforded to advocates in the public interest of ensuring that there is finality in litigation without re-litigation of the result: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1; Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543. A recent application of this principle appears in Stillman v Rushbourne [2014] NSWSC 730, at [21] - [39].

In the latter case, Davies J helpfully reviewed a series of cases where the advice to settle proceedings by way of compromise attracted the defence of advocate's immunity because the underlying controversy has been finally quelled: Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 at [120]; Donnellan v Woodland [2012] NSWCA 433; D'Orta-Ekenaike v Victoria Legal Aid at [66].

In the absence of a wrongful coercion to settle (which I have not accepted) it is plain that any alleged shortcomings in the defendant's representation of the plaintiff as his advocate, and as a result of the applicability of the cited public policy principle and the authorities referred to in the preceding paragraphs, I find that the defendant must be held to be immune from suit in that regard: D'Orta-Ekenaike v Victoria Legal Aid; Giannarelli v Wraith.

That said, the plaintiff has not pointed to any specific matters, or any particular alleged shortcomings, that could reasonably sustain a finding of negligent representation.

(6) Alleged non-pursuit of potential damages claims

The plaintiff also claimed there had been no proper pursuit of his potential claim for damages for assault and related matters arising from the incident of 15 February 2003, and that as a result those potential claims had become statute barred: T128.29. The plaintiff claimed that it was not until 2007 that he became aware that there were time limits in respect of bringing actions for damages in respect of the incident that occurred on 15 February 2003: T179.19. In view of my findings on Issue 1 concerning the defendant's retainer, this issue does not arise. Nonetheless, I also record my finding that the plaintiff was not an unsophisticated person, and I do not accept that he was unaware of the time limits as claimed. He was litigious, and I do not accept he was naïve in that regard.

The plaintiff's array of allegations to the effect that the defendant was negligent must therefore be rejected.

(7) Alleged breach of Solicitors Rules

The plaintiff relied upon Exhibit "AAS" which comprised an extract of the Solicitors Rules which relevantly provide as follows:

"Relations with clients Rules 1-16

Statement of Principle for Rules 1-16

Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of the relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client's best interests. Practitioners should maintain the confidentiality of their clients' affairs, but give their clients the benefit of all information relevant to their clients' affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

1. Acceptance of retainer - Instructions to act or provide a legal service

1.1 A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a cIient, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness."

The plaintiff claimed that the alleged breach of those rules by the defendant was a basis for a finding of liability against the defendant.

In my view the cited extract does no more than restate a solicitor's fiduciary obligation and the duty a solicitor owes to take reasonable care to advance the interests of the client as would be expected of a practitioner of ordinary skill and competence in the circumstances.

In my view, for the reasons already outlined in my consideration of Issues 1, 2, 3 and 4 above, the plaintiff has failed to establish any liability of the defendant for damages in his favour.

Issue 5 - Causation

Although the preceding findings require that there be a verdict and judgment for the defendant, lest it be found on appeal that I have materially erred in coming to that conclusion, and in accordance with convention, in the paragraphs that follow, I set out my findings on causation.

To establish causation of his claimed losses, in these proceedings, the plaintiff must satisfy the requirements of s 5D of the CL Act, which provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability").

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (among other relevant things) whether or not an why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is admissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

The requirements of s 5D have been considered and explained in Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182, at [32].

The plaintiff's first hurdle is to establish factual causation. To do so he must show that the occurrence of the claimed negligence was a necessary condition for the occurrence of his claimed losses, applying the "but for" test: s 5D(1)(a) of the CL Act; Strong v Woolworths at [18]. The plaintiff is unable to demonstrate that necessary pre-condition because these were delays in his litigation that were not due to negligence on the part of the defendant, and therefore the claimed losses would have accrued in any event in the factual circumstances already described.

The second requirement, namely proof of legal causation, is a more demanding task in a case of this kind. The plaintiff must not only show that his damages arose from the events complained of, but also he must also show that such damage occurred as a result of the negligence alleged: s 5D of the CL Act. This means that the plaintiff must show that if the defendant had carried out his obligations under the retainer and pursuant to the duty of care that he owed to the plaintiff, the plaintiff would not have incurred the losses he alleges he has suffered: Strong v Woolworths, at [32].

I find that the plaintiff has not discharged the onus of proof concerning those matters: s 5D and s 5E of the CL Act.

Issue 6 - Assessment of damages

Notwithstanding my findings that are adverse to the plaintiff's case on Issues 1-5, and in accordance with convention, lest I be found to be wrong in my consideration of those issues, in the paragraphs that follow, I set out my consideration of the plaintiff's claim for damages.

During the course of the hearing the plaintiff identified the amount of his claim in a schedule that was incompletely quantified at $1,586,094: Exhibit "AAP". That schedule comprised "particulars" and did not constitute proof of the claimed losses: T143. The claim was in the following terms:

"Office, Secretarial, Phone, Stationary, Photocopying

Postage, faxing: 360,000.00

Personal claim for costs of analyses ( 8 years 300,000.00

Legal costs : (other than defendant)

Representation, advice, Disbursements: 154,000.00

Court fees and charges: 8,600.00

Abandonment of Claim for damages: 5,000.00 +

Travel, accommodation, meals, carer charges: 67,000.00 +

Abandonment of Claims as set out in Statement of Claim

Goods and chattels, and Cash: 390,000.00 +

Non enforcement of indemnity: 23,000.00

Loss of rents: 27,000.00 +

Building materials, tools, fittings and fixtures: 14,990

Loss of Value on 31 Learmonth Street E (sic) 30 -35,000.00

Cost maintaining 31 Learmonth St. 2006 - 2009 2,600.00

Costs of Borrowings: 74,800.00

Loss of potential future business income, from 85,000.00, investment in commercial venture, commenced in 2004, building towards a projected annual income in 2008 of 80,000m (sic) pa.

Possible losses due to neglect to claim against:-

Police and Ms Jones and associates: ?

Loss re: breach of confidentiality, and preceding robbery: 45,000.00

Claim for interest, as set out in claim.

Compensation health, welfare and wellbeing: ?"

The plaintiff claimed that his goods, which had been dissipated due to alleged delays by the defendant, were valued at approximately $234,000: T93.5. This was said to be a depreciated valuation: T93.10

Although it is not essential for documentary proof to be provided for the valuation of the goods claimed to have been dissipated, having regard to my findings as to the plaintiff's credit as a witness, I am not prepared to accept his evidence as to the claimed value of those goods without corroboration.

The plaintiff also sought to prove his claim for the costs of document analysis, secretarial expenses, photocopying, telephone, faxes, travel and the like at $64,852.85: Exhibit "AAK". Without supporting evidence I consider that those claims must be considered to be extravagant and unproven.

Neither Exhibit "AAK" or "AAP" constituted proof of the value of the items claimed. The plaintiff made no attempt to call evidence to prove his claimed losses despite being invited to do so, for example, at T57.19; T539, and at other places in the transcript. The only document the plaintiff put forward in the proceedings to seek to quantify his damages claim was in the course of argument, in the sum of $531,565.73. That document was not tendered as an exhibit and it was marked for identification: MFI "16". It does not provide evidence of proof of loss.

Those circumstances lead me to conclude that the plaintiff has failed to quantify his claim for damages against the defendant with cogent and acceptable evidence of proof of his alleged losses.

In arriving at those views I have not overlooked the plaintiff's statement that he had lost some of his documents in transit just before the hearing commenced: T22.3-5. However, given his statement at T457.15, I did not consider the plaintiff to have been relevantly disadvantaged because he had taken steps to address those circumstances.

The plaintiff made a general claim for "compensation, health, welfare and wellbeing": Exhibit "AAP". Assuming this should be regarded as a claim for damages for non-economic loss pursuant to s 16 of the CL Act for the alleged delay and vexation he had encountered in his dealings with the defendant, in the absence of medical or allied evidence, it would be difficult to justify an assessment of such damages for any more than 20 per cent of a most extreme case pursuant to s 16 of the CL Act. This is the monetary equivalent of $19,500.

Disposition

As the plaintiff has failed to make out his case, the defendant is entitled to a verdict in his favour against the plaintiff.

Costs

The defendant is entitled to have his costs of the proceedings paid by the plaintiff on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

I make the following orders:

(1) Verdict and judgment for the defendant;

(2) The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;

(3) The exhibits may be returned after the time for an appeal has expired;

(4) Liberty to apply on 7 days notice if further orders are required.

APPENDIX

EXHIBITS LISTED IN CHRONOLOGICAL ORDER

Exhibit

Date

Description

AAB

02.05.01

Letter N & J Asphalt to J Jones 02/05/2001

AAJ

21.05.01

Bundle of 5 tax invoices from plaintiff to Ms J Jones dated 21/05/01, 29/09/01, 27/10/01, 11/01/02, 28/10/02

1, Tab 2

01.05.02

Loan agreement

1, Tab 12

22.12.02

Letter from plaintiff to Ms Jones

AAN

15.02.03

Apprehended Violence Telephone Interim Order 15/02/2003 protecting the plaintiff

AAO

18.02.03

Letter from Jeremy Rolfe, solicitor, to Detective Inspector Seymour dated 18/02/2003

1, Tab 20

06.03.03

Declaration by plaintiff

1, Tab 22

22.05.03-
26.05.03

Statements in Local Court proceedings 87/2003

1, Tab 1

12.06.03

CTTT Order

AAM

30.07.03

Police witness statement of Noel C Martin dated 30/07/2003

AAL

15.08.03

Police Events report 16845358 dated 15/08/2003

A

18.03.04

Exhibit "AC-1" - Affidavit and handwritten note by Mr Cohen

D

23.03.04

Letter dated 23/03/2004 from Andrew Cohen to the plaintiff

1, Tab 10

25.03.04

Letter from Hrobat to plaintiff

1, Tab 11

25.03.04

Letter from plaintiff to Hrobat

B

30.03.04

Letter from Andrew Cohen to plaintiff 30/03/2004

E

30.03.04

Letter dated 30/03/2004 from Andrew Cohen to Dr E O'Connor

C

31.03.04

Costs Agreement dated 31/03/2004 between the parties

AH

05.04.04

Letter dated 05/04/2004 from plaintiff to Andrew Cohen

AJ

06.04.04

Letter dated 06/04/2004 from Andrew Cohen to the plaintiff

AK

06.04.04

Letter dated 06/04/2004 from plaintiff to Andrew Cohen

1, Tab 14

07.04.04

Letter from plaintiff to defendant

1, Tab 3

14.04.04

Letter from plaintiff to defendant

1, Tab 15

22.04.04

Letter from Miss Findlay to Hrobat

1, Tab 4

30.04.04

Letter from defendant to plaintiff

1, Tab 21

07.05.04

Letter from Ms Jones

1, Tab 16

20.05.04

Letter from plaintiff to defendant

AE

21.05.04

Amended statement of claim in proceedings 35/2003 in D/C of Scone between plaintiff and Ms Jones

1, Tab 13

24.05.04

Letter from plaintiff to defendant

AAF

31.05.04

Letter dated 31/05/2004 from plaintiff to Andrew Cohen

AAC

03.06.04

Notice of Cross Claim in proceedings 35/2003 D/C Scone

F

04.06.04

Letter dated 04/06/2004 from Mr E Cohen to Mr A Cohen

K

04.06.04
(21.07.05)

Supreme Court Orders dated 4 June 2004 entered on 21 July 2005

G

08.06.04

Letter dated 08/06/2004 from Andrew Cohen to the plaintiff

AAD

15.06.04

Letter dated 15/06/2004 from plaintiff to Andrew Cohen

Z

12.07.04

Letter dated 12/07/2004 from Andrew Cohen to the plaintiff

W

16.08.04

Letter dated 16/08/2004 from Andrew Cohen to the plaintiff

1, Tab 5

25.09.04
(28.10.04)

Letter from Ms Jones to defendant with attachment

Q

19.11.04

Letter dated 19/11/2004 from Andrew Cohen to the plaintiff

AA

22.11.04

Letter dated 22/11/2004 from Andrew Cohen to the plaintiff

AL

07.12.04

Letter dated 07/12/2004 from Andrew Cohen to the plaintiff

1, Tab 6

13.12.04

Letter from plaintiff to defendant

AZ

15.12.04

Letter titled "New Instructions" dated 15/12/2004

1, Tab 7

21.12.04

Letter from plaintiff to defendant

AM

21.12.04

Letter dated 21/12/2004 from Andrew Cohen to the plaintiff

AN

22.12.04

Letter dated 22/12/2004 from plaintiff to Andrew Cohen

AG

22.12.04

Letter dated 22/12/2004 from Andrew Cohen to the plaintiff

AAQ

23.12.04

Plaintiff's Memorandum of costs and disbursements

H

24.12.04

Application for assessment of costs re. Martin v Jones dated 24/12/2004

AO

03.01.05

Letter dated 03/01/2005 from plaintiff to Andrew Cohen

1, Tab 8

20.01.05

Letter from plaintiff to defendant

AY

27.01.05

Letter dated 27/01/2005 from Andrew Cohen to the plaintiff

1, Tab 9

00.02.05

Deed of costs

AF

19.05.05

Plaintiff's list of discovered documents in proceedings 6800/2004 Equity Division Supreme Court

1, Tab 18

25.05.05

Letter from plaintiff to defendant

1, Tab 19

-

Letter from Mr Miller to Mr Hrobat

J

20.07.05

Notice of Appearance by A Cohen dated 20/07/2005

L

29.08.05

Letter dated 29/08/2005 from Andrew Cohen to the plaintiff

M

24.10.05

Letter dated 24/10/2005 from Andrew Cohen to the plaintiff

N

25.10.05

Letter dated 25/10/2005 from Andrew Cohen to the plaintiff

X

31.10.05

Email from Andrew Cohen to Libby Cohen, undated, replying to email dated 31/10/2005

Y

01.11.05

Letter dated 01/11/2005 from Andrew Cohen to the plaintiff

P

09.11.05

Letter dated 09/11/2005 from Andrew Cohen to Ms Jones

R

22.11.05

Letter dated 22/11/2005 from Andrew Cohen to Mr Conti, costs assessor

S

12.12.05

Letter dated 12/12/2005 from Andrew Cohen to the plaintiff

T

16.12.05

Letter dated 16/12/2005 from Andrew Cohen to the Registrar of Manly Local Court

U

23.12.05

Order for Judgment dated 23/12/2005 for $11,145.11

V

-

Bankruptcy Notice to Ms Jones

AB

07.02.06

Letter dated 07/02/2006 from plaintiff to Andrew Cohen

AD

07.02.06

Memorandum to file 07/02/2006

AC

08.02.06

Letter dated 08/02/2006 from Andrew Cohen to the plaintiff

AP

10.02.06

Skeleton argument of the plaintiff prepared by Andrew Cohen 10/02/2006

AAE

13.02.06

Transcript of proceedings on 13/02/2006 in Equity Division of S/C 2227/05 (228 pages)

AAG

17.02.06

Terms of judgment in S/C Equity Division proceedings 2227/2005 & 6800/2004, Martin v Jones dated 17/02/2006

AAH

-

Consent document basing above orders

O

27.02.06

Bill of Costs of defendant from period 19/03/2005 - 27/02/2006 (with 522 items)

AQ

12.04.06

Letter dated 12/04/2006 from BMO Solicitors to Andrew Cohen

AR

19.04.06

Letter dated 19/04/2006 from Andrew Cohen to BMO Solicitors

AW

15.05.06

Letter dated 15/05/2006 from plaintiff to Andrew Cohen

AX

-

Mutual release 2 pages handwritten

AS

24.05.06

Letter dated 24/05/2006 from Andrew Cohen to the plaintiff

AT

31.05.06

Letter dated 31/05/2006 from Andrew Cohen to the plaintiff

AU

02.06.06

Letter dated 02/06/2006 from Andrew Cohen to the plaintiff

AV

14.07.06

Caveat dated 14/07/2006

AAR

07.08.06

File note/postscript dated 07/08/2006 and covering letter dated 07/08/2006

AAA

17.08.06

Costs Assessment preamble prepared by defendant 17/08/2006

AAK

13.10.06

Bundle of statements of account dated 13/10/2006 and 12/02/2007

AAP

-

Particulars document "Claim filed 21 May 2014..."

AAS

-

Solicitor's Rules extract (Rules 1 - 16)

Decision last updated: 11 September 2014

Medium Neutral Citation:	Martin v Cohen [2014] NSWDC 145
Hearing dates:	23, 24, 25, 28, 29, 30, 31 July, 1 and 4 August 2014
Decision date:	11 September 2014
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1.Verdict and judgment for the defendant; 2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered; 3.The exhibits may be returned after the time for an appeal has expired; 4.Liberty to apply on 7 days notice if further orders are required.
Catchwords:	TORTS - alleged professional negligence - legal practitioner - professional services provided by solicitor - resolution of factual dispute concerning scope of retainer -whether coercion to settle underlying Supreme Court proceedings - whether breach of fiduciary duty - whether breach of duty of care concerning advice and implementation of instructions including in the course of advocacy - whether advocate's immunity established - whether causation of claimed losses established; DAMAGES - assessment of claimed losses
Legislation Cited:	Civil Liability Act 2002, s 5B, s 5D, s 5E, s 16 Civil Procedure Act 2005, s 100 Legal Profession Act 2004, s 347 Property (Relationship) Act 1984, s 20 Solicitors Rules, r 1 (The Law Society of New South Wales Professional Conduct and Practice Rules Legal Profession Act 1987)
Cases Cited:	Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46 Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222. Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 CrÃ©dit Lyonnais SA v Russell Jones and Walker [2003] Lloyd's Rep PN 7 Donnellan v Woodland [2012] NSWCA 433 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 Jennings v Zihali-Kiss (1972) SASR 493 Lucantonio v Klienert [2009] NSWSC 853 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449; (1997) 144 ALR 729 Marshall v Prescott (No 3) [2013] NSWSC 1949 Permanent Trustee Australia Ltd v Boulton; Permanent Trustee Australia Ltd v Lynjoe Pty Ltd [1994] 33 NSWLR 735; Stillman v Rushbourne [2014] NSWSC 730 Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 Studer v Boettcher [2000] NSWCA 263 Trust Company of Australia v Perpetual Trustee WA Limited (1997) 42 NSWLR 237 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Texts Cited:	Thomson Reuters Laws of Australia, (accessed as at 20 August 2014): 27 Professional Liability, 27.1 Fiduciary Duties [27.1.230]
Category:	Principal judgment
Parties:	Noel Charles Martin (Plaintiff) Andrew John Cohen (Defendant)
Representation:	Plaintiff in person Mr D Priestley (Defendant) Plaintiff in person Colin Biggers & Paisley (Defendant)
File Number(s):	2012/47950
Publication restriction:	None

Nature of case	[1] - [7]
Motion to amend the defence	[8] - [10]
Motion by plaintiff seeking reliance upon documents	[11] - [13]
Pleadings	[14] - [22]
Evidence overview	[23] - [26]
Absence of expert evidence	[27] - [28]
Issues	[29]
Credit	[30] - [55]
Plaintiff	[31] - [39]
Miss Findlay	[40] - [45]
Ms Cohen	[46]
Defendant	[47] - [54]
Ms Hilder	[55]
Facts	[56] - [164]
Background events	[57] - [77]
Commencement and disputed scope of defendant's retainer	[78] - [109]
Rent claim	[110] - [112]
Delays in previous District Court litigation	[113] - [114]
Claimed delay over costs assessment	[115] - [128]
Resolution of Supreme Court Equity proceedings	[129] - [150]
Post settlement events	[151] - [164]
Issue 1 - Scope of defendant's retainer	[165] - [187]
Issue 2 - Alleged coercion to settle	[188] - [223]
Issue 3 - Whether breach of fiduciary duty	[224] - [253]
Applicable principles - fiduciary duties	[228] - [232]
Consideration of alleged breach of fiduciary duty	[233] - [253]
Issue 4 - Duty of care and alleged breaches	[254] - [303]
(1) Alleged preferment of own interests	[260]
(2) Alleged delays in the litigation	[261] - [271]
(3) Delays in obtaining a costs assessment	[272] - [284]
(4) Alleged inadequate preparation of litigation	[285] - [297]
(5) Alleged inadequate representation	[298] - [301]
(6) Alleged non-pursuit of damages claims	[302] - [303]
(7) Alleged breach of Solicitors Rules	[304] - [305]
Issue 5 - Causation	[306] - [313]
Issue 6 - Assessment of damages	[314] - [322]
Disposition	[323]
Costs	[324]
Orders	[325]

Exhibit	Date	Description
AAB	02.05.01	Letter N & J Asphalt to J Jones 02/05/2001
AAJ	21.05.01	Bundle of 5 tax invoices from plaintiff to Ms J Jones dated 21/05/01, 29/09/01, 27/10/01, 11/01/02, 28/10/02
1, Tab 2	01.05.02	Loan agreement
1, Tab 12	22.12.02	Letter from plaintiff to Ms Jones
AAN	15.02.03	Apprehended Violence Telephone Interim Order 15/02/2003 protecting the plaintiff
AAO	18.02.03	Letter from Jeremy Rolfe, solicitor, to Detective Inspector Seymour dated 18/02/2003
1, Tab 20	06.03.03	Declaration by plaintiff
1, Tab 22	22.05.03- 26.05.03	Statements in Local Court proceedings 87/2003
1, Tab 1	12.06.03	CTTT Order
AAM	30.07.03	Police witness statement of Noel C Martin dated 30/07/2003
AAL	15.08.03	Police Events report 16845358 dated 15/08/2003
A	18.03.04	Exhibit "AC-1" - Affidavit and handwritten note by Mr Cohen
D	23.03.04	Letter dated 23/03/2004 from Andrew Cohen to the plaintiff
1, Tab 10	25.03.04	Letter from Hrobat to plaintiff
1, Tab 11	25.03.04	Letter from plaintiff to Hrobat
B	30.03.04	Letter from Andrew Cohen to plaintiff 30/03/2004
E	30.03.04	Letter dated 30/03/2004 from Andrew Cohen to Dr E O'Connor
C	31.03.04	Costs Agreement dated 31/03/2004 between the parties
AH	05.04.04	Letter dated 05/04/2004 from plaintiff to Andrew Cohen
AJ	06.04.04	Letter dated 06/04/2004 from Andrew Cohen to the plaintiff
AK	06.04.04	Letter dated 06/04/2004 from plaintiff to Andrew Cohen
1, Tab 14	07.04.04	Letter from plaintiff to defendant
1, Tab 3	14.04.04	Letter from plaintiff to defendant
1, Tab 15	22.04.04	Letter from Miss Findlay to Hrobat
1, Tab 4	30.04.04	Letter from defendant to plaintiff
1, Tab 21	07.05.04	Letter from Ms Jones
1, Tab 16	20.05.04	Letter from plaintiff to defendant
AE	21.05.04	Amended statement of claim in proceedings 35/2003 in D/C of Scone between plaintiff and Ms Jones
1, Tab 13	24.05.04	Letter from plaintiff to defendant
AAF	31.05.04	Letter dated 31/05/2004 from plaintiff to Andrew Cohen
AAC	03.06.04	Notice of Cross Claim in proceedings 35/2003 D/C Scone
F	04.06.04	Letter dated 04/06/2004 from Mr E Cohen to Mr A Cohen
K	04.06.04 (21.07.05)	Supreme Court Orders dated 4 June 2004 entered on 21 July 2005
G	08.06.04	Letter dated 08/06/2004 from Andrew Cohen to the plaintiff
AAD	15.06.04	Letter dated 15/06/2004 from plaintiff to Andrew Cohen
Z	12.07.04	Letter dated 12/07/2004 from Andrew Cohen to the plaintiff
W	16.08.04	Letter dated 16/08/2004 from Andrew Cohen to the plaintiff
1, Tab 5	25.09.04 (28.10.04)	Letter from Ms Jones to defendant with attachment
Q	19.11.04	Letter dated 19/11/2004 from Andrew Cohen to the plaintiff
AA	22.11.04	Letter dated 22/11/2004 from Andrew Cohen to the plaintiff
AL	07.12.04	Letter dated 07/12/2004 from Andrew Cohen to the plaintiff
1, Tab 6	13.12.04	Letter from plaintiff to defendant
AZ	15.12.04	Letter titled "New Instructions" dated 15/12/2004
1, Tab 7	21.12.04	Letter from plaintiff to defendant
AM	21.12.04	Letter dated 21/12/2004 from Andrew Cohen to the plaintiff
AN	22.12.04	Letter dated 22/12/2004 from plaintiff to Andrew Cohen
AG	22.12.04	Letter dated 22/12/2004 from Andrew Cohen to the plaintiff
AAQ	23.12.04	Plaintiff's Memorandum of costs and disbursements
H	24.12.04	Application for assessment of costs re. Martin v Jones dated 24/12/2004
AO	03.01.05	Letter dated 03/01/2005 from plaintiff to Andrew Cohen
1, Tab 8	20.01.05	Letter from plaintiff to defendant
AY	27.01.05	Letter dated 27/01/2005 from Andrew Cohen to the plaintiff
1, Tab 9	00.02.05	Deed of costs
AF	19.05.05	Plaintiff's list of discovered documents in proceedings 6800/2004 Equity Division Supreme Court
1, Tab 18	25.05.05	Letter from plaintiff to defendant
1, Tab 19	-	Letter from Mr Miller to Mr Hrobat
J	20.07.05	Notice of Appearance by A Cohen dated 20/07/2005
L	29.08.05	Letter dated 29/08/2005 from Andrew Cohen to the plaintiff
M	24.10.05	Letter dated 24/10/2005 from Andrew Cohen to the plaintiff
N	25.10.05	Letter dated 25/10/2005 from Andrew Cohen to the plaintiff
X	31.10.05	Email from Andrew Cohen to Libby Cohen, undated, replying to email dated 31/10/2005
Y	01.11.05	Letter dated 01/11/2005 from Andrew Cohen to the plaintiff
P	09.11.05	Letter dated 09/11/2005 from Andrew Cohen to Ms Jones
R	22.11.05	Letter dated 22/11/2005 from Andrew Cohen to Mr Conti, costs assessor
S	12.12.05	Letter dated 12/12/2005 from Andrew Cohen to the plaintiff
T	16.12.05	Letter dated 16/12/2005 from Andrew Cohen to the Registrar of Manly Local Court
U	23.12.05	Order for Judgment dated 23/12/2005 for $11,145.11
V	-	Bankruptcy Notice to Ms Jones
AB	07.02.06	Letter dated 07/02/2006 from plaintiff to Andrew Cohen
AD	07.02.06	Memorandum to file 07/02/2006
AC	08.02.06	Letter dated 08/02/2006 from Andrew Cohen to the plaintiff
AP	10.02.06	Skeleton argument of the plaintiff prepared by Andrew Cohen 10/02/2006
AAE	13.02.06	Transcript of proceedings on 13/02/2006 in Equity Division of S/C 2227/05 (228 pages)
AAG	17.02.06	Terms of judgment in S/C Equity Division proceedings 2227/2005 & 6800/2004, Martin v Jones dated 17/02/2006
AAH	-	Consent document basing above orders
O	27.02.06	Bill of Costs of defendant from period 19/03/2005 - 27/02/2006 (with 522 items)
AQ	12.04.06	Letter dated 12/04/2006 from BMO Solicitors to Andrew Cohen
AR	19.04.06	Letter dated 19/04/2006 from Andrew Cohen to BMO Solicitors
AW	15.05.06	Letter dated 15/05/2006 from plaintiff to Andrew Cohen
AX	-	Mutual release 2 pages handwritten
AS	24.05.06	Letter dated 24/05/2006 from Andrew Cohen to the plaintiff
AT	31.05.06	Letter dated 31/05/2006 from Andrew Cohen to the plaintiff
AU	02.06.06	Letter dated 02/06/2006 from Andrew Cohen to the plaintiff
AV	14.07.06	Caveat dated 14/07/2006
AAR	07.08.06	File note/postscript dated 07/08/2006 and covering letter dated 07/08/2006
AAA	17.08.06	Costs Assessment preamble prepared by defendant 17/08/2006
AAK	13.10.06	Bundle of statements of account dated 13/10/2006 and 12/02/2007
AAP	-	Particulars document "Claim filed 21 May 2014..."
AAS	-	Solicitor's Rules extract (Rules 1 - 16)