Palios Meegan & Nicholson Holdings Pty Ltd v Shore - [2010] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PALIOS MEEGAN & NICHOLSON HOLDINGS PTY LTD & ANOR v SHORE
[2010] SASCFC 21
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
12 August 2010
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - PROFESSIONAL PERSONS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - GENERALLY
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
Appeal against a finding in the District Court, of a breach of duty by solicitors and the damages there assessed - following a workplace injury which gave rise to workers compensation entitlements, the plaintiff and respondent engaged the defendants and appellants to act for her - claim was resolved in 1998 and future entitlements redeemed - following a later workplace injury, the respondent brought a claim against the appellants alleging breach of duty - whether fact finding process of trial Judge flawed - whether Judge erred in relation to the standard of proof - whether Judge erred in consideration of the Jones v Dunkel principle - whether Judge gave inadequate weight to evidence of established practice - whether Judge gave inadequate weight to the wording of the redemption agreements and annexures - whether Judge incorrectly concluded that the respondent "ill-advised" about settling her claims - whether Judge did not properly consider issue of reliability of evidence led by the appellants.
Held: appeal allowed - cross-appeal dismissed - judgment of trial Judge set aside - judgment entered in favour of the appellants - allegation of breach serious - on Judge's findings, no clear and cogent evidence to support a finding of breach - failure of the respondent to call witness who was present at the time the redemption agreements signed, gave rise to a Jones v Dunkel inference - Judge failed to give adequate weight to the evidence led by the appellants about established practice - when viewed in context of evidence of established practice, evidence should have been accepted - when considering adequacy of advice given, Judge failed to give adequate weight to the terms of the redemption agreements and annexures - agreement and annexures contained the advice mandated by statute - conclusion of Judge that respondent not adequately advised not to settle, flawed - review of evidence discloses that appellants obtained best settlement that could be obtained for the respondent, who had rejected advice to stay on the system - failure of Judge to give adequate consideration to issue of credibility flawed - Judge was required to address the direct conflict between the evidence of the two principal witnesses - no basis to reach conclusion that there had been any departure from standard of care expected of an expert professional legal advisor.
Workers Rehabilitation and Compensation Act 1986 (SA) s 22, s 35, s 42 and s 43; Supreme Court Act 1935 (SA) s 50; Supreme Court (Civil) Rules 2006 (SA) r 292; Trade Practices Act 1974 (Cth) s 52; Fair Trading Act 1986 (SA) s 56, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Jones v Dunkel (1959) 101 CLR 298; F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 175 CLR 479; Heydon v NRMA Ltd (2000) 51 NSWLR 1; Astley v Austrust Ltd (1999) 197 CLR 1; Edward Wong Finance Co Ltd v Johnson Masters & Stokes (a firm) [1984] AC 296; Hawkins v Clayton (1988) 164 CLR 539; Jennings v Zilahi-Kiss (1972) 2 SASR 493; Studer v Boettcher [2000] NSWCA 263; Harrington v Harrington (1981) 155 CLR 317; Fox v Percy (2003) 214 CLR 118; Wade v Australian Railway Historical Society (SA Division) t/as Steamranger (2000) 77 SASR 221; Coulton v Holcombe (1986) 162 CLR 1; Norbis v Norbis (1986) 161 CLR 513; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Rejfek v McElroy (1965) 112 CLR 517; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Weissensteiner v The Queen (1993) 178 CLR 217; Brandi v Mingot (1976) 12 ALR 551; O’Donnell v Reichard [1975] VR 916; R v Buckland [1977] 2 NSWLR 452; Connor v Blacktown District Hospital [1971] 1 NSWLR 713; Olga Investments Pty Ltd v CitiPower Ltd [1998] 3 VR 485; R v Pugh (2005) 158 A Crim R 302, considered.

PALIOS MEEGAN & NICHOLSON HOLDINGS PTY LTD & ANOR v SHORE
[2010] SASCFC 21
Full Court Nyland, Gray and Vanstone JJ

NYLAND J: I agree that the appeal should be allowed for the reasons expressed by Gray J and I agree with the orders he has proposed.
GRAY J:
This appeal is against a finding, following a trial in the District Court, of a breach of duty by solicitors and the damages there assessed.
Introduction
In 1996 Marilyn Ella Shore, the plaintiff and respondent, sustained a work injury which gave rise to workers compensation entitlements. She engaged the defendant and appellant, Palios Meegan and Nicholson Holdings Pty Ltd, solicitors, to act for her. Palios Meegan and Nicholson was an incorporated legal practice. Julia Palios, the second defendant and appellant, was a solicitor who worked in that practice. Ms Palios had the conduct of Ms Shore’s matter. In 1998, Ms Shore’s claim was resolved and her future entitlements redeemed.
In 2004, Ms Shore sustained a further work injury. Following the receipt of legal advice in relation to that injury, she made a claim against Palios Meegan and Nicholson and Ms Palios, alleging a breach of duty of care. Ms Shore claimed that both appellants owed a duty of care to her and that both acted in breach of that duty.
The primary issues to be considered on the appeal arise from the approach of the trial Judge to the onus of proof (Briginshaw v Briginshaw[1]), the drawing of inferences (Jones v Dunkel[2]), the weight to be given to evidence of established practice and finally to the fact-finding process. The appellants contended that the proper resolution of these issues would lead to an order allowing the appeal and the dismissal of Ms Shore’s claim.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
[2] Jones v Dunkel (1959) 101 CLR 298.
The appellants also complained with respect to the damages award, asserting that in the circumstances, no loss had been established.
Ms Shore filed a notice of alternative contention in which it was asserted that the judgment of the trial Judge was capable of being supported upon the ground that the appellants had engaged in conduct in breach of section 52 of the Trade Practices Act 1974 (Cth) and section 56 of the Fair Trading Act 1986 (SA). Ms Shore also cross-appealed, claiming that the damages awarded by the Judge were assessed incorrectly and were inadequate.
Ms Shore claimed that as a consequence of the breach of duty by the appellants, she suffered loss due to having ill-advisedly and inappropriately redeemed her workers compensation entitlements. Ms Shore and her present solicitor gave evidence in support of her claim.
The case of the appellants was that Ms Shore had been advised to “stay on the system” and not settle her claim. It was contended that Ms Shore, notwithstanding that advice, wished to settle and as part of that process, redeem her entitlements to compensation. It was said that Ms Shore received relevant and appropriate legal advice. The appellants submitted that at all times, they met the duty of care owed by them as professionals with expertise in the field of workers compensation.
The appellants led evidence from Ms Palios, Kenneth Dean Field, an independent financial advisor, Anthony John Corrighan, a conciliation and arbitration officer, Tracey Ann Kerrigan, a solicitor who assisted Ms Palios and Robert Leigh Vandapeer, a consultant with a worker’s compensation claim management consultancy business.
The trial Judge held that Ms Shore had established a breach of the duty of care on the part of both appellants in two respects; namely, inadequate advice as to the true value of her present entitlements at that time and, in particular, in relation to the effect of redemption in the event of further work injury. The Judge awarded damages on the basis of restoring Ms Shore to the position she would have been in had she not acted on the advice of the appellants.
The appellants challenged the findings of the Judge concerning the extent of advices given to Ms Shore. It was submitted that the Judge’s approach to the making of factual findings was materially flawed. It was said that this Court was in a position to not only find that the Judge’s approach was flawed but was in a position to make its own findings and to dismiss the claim. It was argued that this was a matter in which the evidence in support of the dismissal of the claim, when properly understood, was overwhelming.
Background Facts
Ms Shore was born in South Australia in January 1946. She left school when aged 14 years to find employment. She first worked for a hairdresser, and later as a waitress. When aged 19 years she took employment as a carer – a nurse’s assistant – for the elderly in suburban Adelaide. Thereafter, she worked continuously in that occupation taking employment at Resthaven Inc in the mid 1970’s. While at Resthaven, she held a second job working as a carer at nursing homes through placements arranged by an agency.
On 7 July 1996, Ms Shore sustained an injury in the course of her employment with Resthaven. As a consequence of the injury, she suffered compensable disability within the meaning of the Workers Rehabilitation and Compensation Act 1986 (SA). She became entitled to statutory benefits, of which three are of relevance to the within appeal: an entitlement to lump sum compensation for non-economic loss in respect of a permanent disability;[3] an ongoing entitlement to weekly payments of income maintenance until aged 65 years;[4] and, an ongoing right to the recovery of medical expenses.[5]
[3] Workers Rehabilitation and Compensation Act 1986 (SA), section 43.
[4] Workers Rehabilitation and Compensation Act 1986 (SA), section 35.
[5] Workers Rehabilitation and Compensation Act 1986 (SA), section 22.
In September 1997 Ms Shore instructed Palios Meegan and Nicholson to act. At this time, she was in receipt of weekly income maintenance payments and the reimbursement of medical expenses.
On 31 October 1997, the compensation authority made a determination of a lump sum entitlement to non-economic loss under section 43 of the Workers Rehabilitation and Compensation Act, of $33,550.20. Ms Shore was paid this amount in December 1997.
On 28 January 1998, Ms Shore exercised her statutory right to review the section 43 determination. Palios Meegan and Nicholson lodged a notice of dispute on her behalf. In May 1998, in the course of compulsory conciliation, WorkCover raised the possibility of an all-up settlement. This included a possible redemption of Ms Shore’s ongoing entitlement to weekly income maintenance payments, pursuant to section 42 of the Workers Rehabilitation and Compensation Act. This led to Ms Shore seeking advice from Ms Palios, with respect to an all-up settlement.
It was common ground that Palios Meegan and Nicholson were experts in workers compensation. Ms Palios had an extensive practice, and at the time of advising Ms Shore, was conducting in the order of 250 workers compensation claims. Ms Palios maintained files with respect to her clients. Ms Shore’s file included court documents, correspondence and typed and handwritten file notes. An examination of the file reveals the type of file expected to be maintained by a busy solicitor working within a well-familiar area of practice. Unsurprisingly, many of the notes were brief, even to the point of being cryptic.
Ms Palios gave evidence of her general practice when undertaking her professional duties. She drew on this practice when giving evidence about her attendances on Ms Shore. The evidence that Ms Palios had established practices was not challenged.
When WorkCover first raised the possibility of an all-up settlement, shortly prior to 22 May 1998, Ms Palios advised Ms Shore not to agree to an all-up settlement. She advised that it was not in Ms Shore’s best interests to agree to such a settlement and that she should stay on the workers compensation system for as long as possible. When writing to Palios Meegan and Nicholson on 26 May 1998, Ms Shore confirmed receipt of this advice.
Notwithstanding Ms Palios’ advice that she should stay on the system, Ms Shore sought Ms Palios’ advice as to an all-up settlement. Ms Shore was interested in the prospect of a substantial lump sum payment. It was in this context that advice was given about a possible settlement. Ms Palios gave evidence that at no point did she withdraw or change the advice that Ms Shore should stay on the workers compensation system for as long as possible. Ms Shore’s case was that this advice had been withdrawn.
On 16 June 1998, Ms Palios provided written advice to Ms Shore with respect to the consequences of the acceptance of a redemption in a lump sum. That advice included the following:
We advise that if a redemption lump sum is accepted it will have the following legal effect:-
(a) You will have no further entitlement to income maintenance payments.
(b)The amount would be non-taxable. However, the Taxation Department may change its ruling in relation to taxation of redemption payments in the future.
(c)We advise that accepting a redemption payment would mean that you would be precluded from receiving Social Security benefits for a period of time. That period is calculated by determining how long it would take a worker earning average weekly earnings to earn half of the redemption sum.
(d)The Department of Social Security may also take into account any recent lump sums paid in relation to permanent disability for the purposes of this calculation, which may result in a higher preclusion period.
(e)If you obtain alternative employment and then suffer from a work-related incapacity in the future, WorkCover, or its insurers, may reduce your entitlements to income maintenance payments and refuse to pay a portion of your medical expenses in order to make some allowance for the redemption payment.
(f)You will have no further entitlement to payment of medical expenses by WorkCover or its insurers.
…
Ms Palios gave evidence that at the time of giving this advice she considered that there was some uncertainty about the proper interpretation of section 35(6a) of the Workers Rehabilitation Compensation Act, a provision addressing the consequences of redemption of an entitlement to weekly income maintenance payments and the manner in which WorkCover would seek to apply the provision. As a consequence, to address this uncertainty when giving advice, she wrote that WorkCover or its insurers “may reduce your entitlement to income maintenance payments”.
On 1 July 1998, Ms Palios wrote to Ms Shore on the topic of a possible all-up settlement. In this letter, Ms Palios addressed the award of lump sum compensation. Ms Palios explained the legal consequences of acceptance and rejection of the all-up offer being made by WorkCover. Ms Palios did not in this letter further address section 35(6a). She wrote:
…
We confirm acceptance of the said offer would have the following legal effect:
1.     You will have no further entitlement to weekly payments of compensation;
2.     You will be responsible to pay all your future medical expenses.
3.You will have Social Security preclusion period of approximately 82 weeks (the exact period that you will not be entitled to benefits from the Department of Social Security has to be obtained by the Department direct);
4.There is no taxation payable on the redemption lump sum but the Taxation Office policy may change in the future.
We confirm rejecting the said offer would have the following effect:
1.You will continue to receive weekly payments of compensation. This can’t be guaranteed to the age of 62 ½ or 63 but as long as the law remains in its current form you should be able to receive income maintenance to the age of 62 ½ or 63;
2.WorkCover will continue to pay all her medical expenses. The writer is of the view that your future medical expenses would be substantial in light of the extent of the disabilities assessed and the psychological effects of the disabilities;
3.You can proceed with the Notice of Dispute seeking further lump sum payments on the basis that you have suffered a psychiatric injury and that the psychiatric injury has increased your disabilities.
4.On the basis of Dr Burville’s opinion and Dr Craig’s opinion your claim for illness or disorder of the mind should be accepted. They have no evidence to reject the claim.
At some time prior to 18 August 1998, Ms Shore had determined that in the event of effecting an all-up settlement, she would return to employment as soon as possible. It may be inferred that, as a result of her interest in obtaining an all-up settlement, Ms Shore had formed this intention by the end of June 1998.
Following extensive negotiations with WorkCover an amount acceptable to Ms Shore was offered. It was not in issue that Ms Palios had negotiated the highest amount by way of redemption that could be expected to be acceptable to WorkCover.
In August 1998, Ms Shore agreed to accept an all-up settlement offer of $116,500.00. This was inclusive of the earlier section 43 payment of $33,550.20. The all-up settlement offer was comprised of the following components: redemption of weekly payments of income maintenance to age 65, $49,507.33; redemption of future medical expenses, $500.00; and non-economic compensation for permanent disability, $66,992.67.
Within a matter of months of settlement, by May 1999, Ms Shore had obtained part-time employment, and thereafter returned to employment with increased hours over the ensuing six years. Ms Shore did not purchase an annuity. Instead, she disposed of the settlement monies by clearing debt, purchasing a bed and making a gift of moneys to her family.
As earlier mentioned, in July 2004, Ms Shore suffered a further workplace injury. However, she continued to work until mid 2005 and thereafter ceased work. At or about this time, Ms Shore consulted a solicitor. Following that consultation, Ms Shore gave notice of her present claim. Ms Shore had made no complaint about the settlement or advices received from the appellants until this time.
The Trial Judge’s Findings
The Judge concluded that Ms Shore, although honest, was an unreliable witness. The Judge considered that her memory was “severely compromised by a combination of the passage of time, the complexity of the subject matter, the effect of age and recent invasive medical treatment” and as a consequence:[6]
It is not possible to accept the evidence of the plaintiff that she was given no substantial advice at all. In the first place that stance is inconsistent with the defendants’ letters of advice, some of them confirming the terms of oral advice previously rendered. Secondly, her recall was shown to be quite imperfect when she claimed to have kept all her solicitor’s correspondence, when clearly she had not. Thirdly, when it came to signing the agreements, her evidence of having received no legal or financial advice is quite inconsistent with the evidence of the financial planner Mr Field, who deposed to having a substantial conversation with her on that day. This is supported by the notes he made at the time. Parts of the contents of those could only have emanated from Mrs Shore herself. It is further supported by the letter he wrote afterwards. Finally, her evidence cannot stand against the file notes of conferences with Ms Palios on 22 January, 25 June and 22 July. The general terms of these are detailed above. In the end these clearly demonstrate detailed legal advice must have been rendered, in terms recorded therein. …
[Emphasis added – footnotes omitted]
[6] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [57].

Ms Shore claimed that she signed the redemption agreements to give effect to the settlement without receiving advice and without reading the documentation. As set out in the above extract, the Judge rejected her evidence in this respect as unreliable. That rejection was not challenged on appeal.
The Judge found Ms Palios to be an honest witness. This finding was not challenged on appeal. The Judge reached the conclusion that Ms Palios had not retained any independent recollection of particular events or specific discussions. As a consequence, the Judge gave little or no weight to significant parts of her evidence as in his view, it was no more than reconstruction. The Judge went so far as to describe Ms Palios’ process of giving evidence as being “no more than abject reconstruction”.
The Judge was unimpressed by the evidence of Ms Palios that detailed oral advice was allegedly given to Ms Shore when there was no matching or related file note. The Judge observed:[7]
An astonishing feature of this case is that there is nowhere to be found, any reference whatsoever in any of the contemporary records, reflecting the fact that advice along these lines was ever given. It is inconceivable that of all the advice proffered and opinions expressed over the period of twelve months or so, some of it quite detailed in relation to other topics of lesser importance, that some record would not have been made, had the advice along the claimed lines been given. It is difficult to appreciate why it was not confirmed or referred to in any of the many letters sent to Mrs Shore, still less in any file note, or why there is no reference to the settlement being affected against that advice.
[7] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [62].
The Judge was thus faced with the circumstance where he concluded that the principal witnesses, Ms Shore and Ms Palios, were both unreliable in their recounting of critical events. As a consequence, in reaching his findings the Judge drew on written records of Ms Palios and correspondence that passed between Ms Palios and Ms Shore. It was this material from which the Judge drew inferences which underpinned the Judge’s ultimate findings. The Judge further concluded:[8]
Based on all the evidence adduced in this case, the conclusion is inescapable that Mrs Shore was advised in no less terms than contained in the file notes and as detailed in the correspondence. It follows that the content of that advice was to the general effect, so far as relevant to the claimed particulars of negligence, that upon redemption there was no further entitlement to income maintenance or medical expenses, that in the event of subsequent work-related injury, her entitlement to income maintenance may be reduced and that if she declined redemption, she would continue to receive weekly payments and would continue to receive further medical expenses, thought to be “substantial”.
[Footnote omitted]
[8] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [59].
The Judge found that the appellants owed a duty of care to advise Ms Shore with respect to the settlement of her claim, and in particular, to advise her of the consequences of agreeing to redeem her entitlements:[9]
… The content of the duty of a reasonable practitioner versed in the jurisdiction was to inform her of the consequences of redemption, both as to weekly payments and medical expenses aspects, the practical effect of s 35(6a) upon redemption of her entitlements to weekly payments in the event of another injury and as to the potential value of what she was forgoing upon redemption. On the above findings the practitioner discharged the duty in relation to the loss of entitlements to weekly payments and for future medical expenses.
When it comes to the effect of s 35(6a), the advice given was qualified in two respects; firstly the subsequent entitlement to weekly payments on further work injury might be reduced; and secondly there might be some allowance for that because of the redemption payment. The subject matter of s 35(6a) was known at least since the amendments of 1992 to be the reduction in the level of weekly payments for subsequent injury. The discretionary prospect of reduction was made obligatory by the 1995 amendments.
[9] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [74]-[75].
The Judge concluded that the appellants breached the duty of care owed to Ms Shore. The Judge found that the appellants were negligent in advising Ms Shore to settle her claims for an all-up figure. In particular, the Judge found that there was a failure to fully explain the consequences of the redemption of Ms Shore’s present entitlements and what would follow in the event of a subsequent injury. The conclusion that the appellants acted in breach of duty drew on the Judge’s finding of the failure to explain to Ms Shore the practical effect of section 35(6a) of the Workers Rehabilitation and Compensation Act:[10]
The duty of the practitioner was to advise that the future level of weekly payments upon subsequent work injury would be reduced by the sum nominated in the redemption agreement. … The advice therefore fell short of the appropriate standard, because it was provisional and because it failed to specify in dollar terms the level, or the potential level of reduction. …
…
... The proper discharge of the duty of care required the solicitor to meaningfully quantify the potential value of the entitlements Mrs Shore was proposing to relinquish. Even then the breach of duty went further because Mrs Shore was not ultimately advised to “stay on the system” for as long as she could. At that point in time, until the prospect of discontinuance or reduction of her entitlements became critical, there was simply no need or imperative to redeem. On any view it was not in her interests to do so. Given that Mrs Shore remained in receipt of regular payments, and that there was no extant or immediate threat of discontinuance, advice was needed if only to emphasise that she was far better off remaining in that situation, than she would be by prematurely redeeming all her benefits. The plaintiff has therefore established a breach of the duty of care in those two respects: inadequate advice on the implications of s 35(6a) and the full consequences of redemption of present entitlements.
[10] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [77],[80].
The Judge assessed damages by comparing the compensation benefits that the evidence suggested Ms Shore would have received had she not redeemed her entitlements and continued on the system of weekly payments of income maintenance, to the amounts which she received by redeeming her weekly payments. This led to the conclusion that Ms Shore had suffered loss and damage.[11]
[11] Shore v Palios Meegan & Nicholson Holdings P/L & Palios (No 2) [2009] SADC 50 at [65]-[66].
The provisional measure of her damages to 3 March 2009 based on the above analysis devolves as follows:
Short-fall in s 43 entitlements $11,388.60
Loss of weekly payments  $121,036.70  $132,425.30
Less original s 43 determination $33,550.20
Less Redemption lump sum  $50,007.33
Less legal fees   $ 2,500.00  $ 86,057.53
TOTAL LOSS:  $ 46,367.77
Preliminary Observations
Before coming to a detailed consideration of the issues arising on the appeal, it is convenient to address three preliminary matters: the nature and scope of the relevant duty of care; the legislative scheme; and, the role of the appeal court.
The Nature and Scope of the Duty of Care
The appellants were held out to be experienced and qualified in the specialised area of workers compensation. As such, in accordance with the observations of King CJ in F v R[12] the standard of care “is that to be expected of an ordinarily careful and competent practitioner of the class to which the practitioner belongs”. Similar observations were made by the High Court in Rogers v Whitaker,[13] where the remarks of King CJ in F v R were generally approved. More recently, this formulation was applied in Heydon v NRMA Ltd where Malcolm A-JA observed:[14]
… the approach adopted in Rogers v Whitaker is applicable to the duty of care of legal practitioners and the standard of care. Both barristers and solicitors owe a duty of care to those whom they advise or for whom they act. … their duty is to exercise reasonable care and skill in the provision of professional advice. The standard of care and skill is that which may be reasonably expected of practitioners. In the case of practitioners professing to have a special skill in a particular area of the law, the standard of care required is that of the ordinary skilled person exercising and professing to have that special skill. …
[12] F v R (1983) 33 SASR 189 at 190-191.
[13] Rogers v Whitaker (1992) 175 CLR 479 at 488.
[14] Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [146].
The duty of care owed to Ms Shore by the appellants was that of a solicitor exercising and professing to have special skill and expertise in the field of workers compensation. The duty was owed concurrently in contract and tort. In Astley v Austrust Ltd[15] Gleeson CJ, McHugh, Gummow and Hayne JJ observed:[16]
… Until comparatively recently, the mutual rights and duties of a solicitor and client were regarded as regulated exclusively by the express and implied terms of the solicitor's retainer. As recently as 1939, the English Court of Appeal held in Groom v Crocker that "the mutual rights and duties of the two are regulated entirely by the contract of employment". The Court rejected an argument that liability in tort could arise from their relationship. But times change. Since that decision, the law has evolved to the conclusion that concurrent liabilities in both contract and tort may arise in cases of professional negligence. Prima facie, a plaintiff may sue a solicitor in either contract or tort or both. In Central Trust Co v Rafuse, Le Dain J, delivering the judgment of the Court, said that:
"where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be the most advantageous to him in respect of any particular legal consequence."
[Footnotes omitted]
[15] Astley v Austrust Ltd (1999) 197 CLR 1.
[16] Astley v Austrust Ltd (1999) 197 CLR 1 at [44].
The standard of care is to reflect both the solicitor’s professed expertise and the client’s state of knowledge, dependence and vulnerability; that is, relevant to the scope of the solicitor’s duty, is the extent to which the client appears to need advice. In deciding what is required of a solicitor in a given case, the court may be influenced by the circumstance that generally it is the solicitor and not the client who has the better opportunity to assess the gravity of the risk involved in a particular case or in a particular transaction, and that it is the solicitor and not the client who has the necessary expertise to analyse and guard against that risk.[17]
[17] Edward Wong Finance Co Ltd v Johnson Masters & Stokes (a firm) [1984] AC 296 at 307.
The relevant standard of care was propounded by Deane J in Hawkins v Clayton as being answered by reference to:[18]
… the standard or measure of care which was reasonable in the circumstances … [namely] … the care and skill to be expected of a qualified and ordinarily competent and careful solicitor in the exercise of his profession.
However, as Bray CJ observed in Jennings v Zilahi-Kiss:[19]
A professional man is only liable for the use of ordinary care and skill. He is not bound to guarantee against all mistakes or omissions or to be gifted with powers of divination or to exercise extraordinary foresight, learning or vigilance.
It has also been said that in the context of legislation of uncertain construction, a solicitor is not to be expected to speculate as to what might later become accepted principle.[20]
[18] Hawkins v Clayton (1988) 164 CLR 539 at 580.
[19] Jennings v Zilahi-Kiss (1972) 2 SASR 493 at 512.
[20] Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 129 (McPherson AJA).
Ms Shore was in a position of some vulnerability. She did not complete secondary schooling. At the time of the relevant events, she was 50 years of age. She was suffering from symptoms of depression. In these circumstances, the standard of care required by the appellants should not be narrowly viewed or circumscribed. The appellants were required to assess what was in Ms Shore’s best interests and arm her with the relevant information. As noted by Fitzgerald JA in Studer v Boettcher:[21]
Broadly, and not exhaustively, a legal practitioner should assist a client to make an informed and free choice between compromise and litigation, and, for that purpose, to assess what is in his or her own best interests. The respective advantages and disadvantages of the courses which are open should be explained. The lawyer is entitled, and if requested by the client obliged, to give his or her opinion and to explain the basis of that opinion in terms which the client can understand. The lawyer is also entitled to seek to persuade, but not to coerce, the client to accept and act on that opinion in the client's interests. The advice given and any attempted persuasion undertaken by the lawyer must be devoid of self-interest. Further, when the client alone must bear the consequences, he or she is entitled to make the final decision.
[21] Studer v Boettcher [2000] NSWCA 263 at [75].
The scope of the duty owed by the appellants is to be addressed having regard to the terms of the legislative scheme. The scheme is designed to provide benefits to the injured worker with an emphasis on, and encouragement towards, rehabilitation. It provides through redemption the ability for a claim to be finalised for a lump sum and for the worker to return to the workforce. The legislation mandates that professional and financial advice must be given to a worker before an agreement to redeem can be effected. The terms of section 42 of the Workers Rehabilitation and Compensation Act as later excerpted are of particular relevance as they stipulate the nature of the advices that must be provided before an agreement to redeem can be made. The section informs the scope of the duty. The professional advice must be competent and must address the consequences of redemption. The financial advice must be competent and must address the use of money to be received on redemption.
Legislative Scheme
Ms Shore’s entitlement to weekly payments of income maintenance arose pursuant to section 35 of the Workers Rehabilitation and Compensation Act. The following extracts of section 35 as it applied between May 1995 and June 2008 are of relevance:
(1)     Subject to this Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with the following principles:
…
(b)     if the period of incapacity for work exceeds one year, the worker is entitled to weekly payments determined in accordance with paragraph (a) for the first year of the period of incapacity and thereafter –
(i)the worker is, if totally incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the worker’s notional weekly earnings;
(ii)the worker is, if partially incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the difference between the worker’s notional weekly earnings and the weekly earnings that the worker is earning or could earn in suitable employment that the worker has a reasonable prospect of obtaining.
(2)     For the purposes of subsection (1)-
…
(c)     after the end of the first two years of the period of incapacity, if-
(i)    suitable employment is in fact not available to the worker; and
(ii)the worker establishes that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker's circumstances irrespective of the state of the labour market,
partial incapacity for work will also be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment after the end of the first two years of the period of incapacity must be made on the basis that employment of the relevant kind is available to the worker.
Section 35(5) provided that weekly payments are not payable in respect of a period of incapacity for work falling after the date on which the worker reaches retirement age. “Retirement age” was defined to mean 65 years of age, unless there was a lower normal retirement age for workers in employment of the kind from which the worker’s disability arose.
Section 35(6a) provided that if a liability to make weekly payments is redeemed, the worker is taken, for the purposes of the section, to be receiving the weekly payments that would have been payable if there had been no redemption. That section relevantly provided:
If a liability to make weekly payments is redeemed, the worker is taken, for the purposes of this section, to be receiving the weekly payments that would have been payable if there had been no redemption.
Section 36 addressed the discontinuance of weekly payments, and provided that weekly payments to a worker who had suffered a compensable disability must not be discontinued save in prescribed circumstances. Section 38 addressed WorkCover’s power to review weekly payments.
As earlier mentioned, the capacity to redeem the compensating authority’s liability to make compensation payments was conferred by section 42 of the Workers Rehabilitation and Compensation Act.[22] That section relevantly provided:
[22] It has been said that fundamental to the concept of redemption is the conversion of one form to another of the liability of an employer to pay compensation to an employee. At the heart of redemption lies the concept of a fair exchange: Harrington v Harrington (1981) 155 CLR 317 at 332 (Wilson J); see also Bankes LJ (dissenting, but approved by the House of Lords on appeal) when referring to the English counterpart of section 72(1) of the South Australian Act in Carlton Main Colliery Co Ltd v Clawley [1917] 2 KB 691 at 699.
(1)Any of the following liabilities may, by agreement between the worker and the Corporation, be redeemed by a capital payment to the worker—
(a)     a liability to make weekly payments;
(b)     a liability to pay compensation under section 32;
(c)     a liability to make a capital payment for loss of future earning capacity.
(2)An agreement for the redemption of a liability under this section cannot be made unless—
(a)the worker has received competent professional advice about the consequences of redemption; and
(b)the worker has received competent financial advice about the investment or use of money to be received on redemption; and
(c)     the Corporation has consulted with the employer out of whose employment the disability arose and has considered any representations made by the employer; and
(d)    a recognised medical expert has certified that the extent of the worker's incapacity resulting from the compensable disability can be determined with a reasonable degree of confidence.
(3)     The amount of the redemption payment is to be fixed by the agreement.
Section 42 further provided for a process whereby, in the absence of agreement within three months of either the worker or WorkCover having proposed negotiations with respect to a redemption agreement, “either party may apply to the Tribunal for reference of the matter to a conciliation conference”. However, if the matter could not be resolved by conciliation, there was no capacity for either the worker or WorkCover to insist on a redemption.
The Role of the Appeal Court

This appeal is by way of rehearing.[23] An appeal by rehearing does not involve a completely fresh hearing by the appellate court of all the evidence. Rather, the court proceeds on the basis of the record and any fresh evidence that it chooses to admit.[24] The function of the appellate court in circumstances such as these, has been outlined in some detail in several High Court decisions.[25]
[23] The appeal is pursuant to section 50 of the Supreme Court Act 1935 (SA) and Rule 292 of the Supreme Court (Civil) Rules 2006 (SA).
[24] Fox v Percy (2003) 214 CLR 118 at [22].
[25] See eg Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349 at 351-352; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.
As discussed by the Full Court in Wade v Australian Railway Historical Society,[26] it is not appropriate to invite an appellate court simply to revisit the relevant evidence, including expert evidence, and then contend that the court should reach a different conclusion. As this is an appeal by way of rehearing, error must be demonstrated for the court to be entitled to disturb the decision of the primary decision-maker.[27] It is not for the court to merely substitute its own view, as if it were again performing the function of the trial Judge. Rather, it is the court’s duty to consider whether the findings were incorrect.[28] Furthermore, the manner in which the case on appeal is conducted by the parties ought not depart from the manner in which the case was conducted at trial, and generally, the appeal arena is not the appropriate forum to raise new arguments.[29]
[26] Wade v Australian Railway Historical Society (SA Division) t/as Steamranger (2000) 77 SASR 221 at [38] (Doyle CJ, Duggan & Lander JJ agreeing).
[27] Norbis v Norbis (1986) 161 CLR 513 at 518-519 (Mason & Deane JJ); see also Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 (Gleeson CJ, Gaudron & Hayne JJ).
[28] See eg the observations in Coulton v Holcombe (1986) 162 CLR 1 at 7 where Gibbs CJ, Wilson, Brennan and Dawson JJ observed:
…To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish…
see also Norbis v Norbis (1986) 161 CLR 513 at 518-519 where Mason and Deane JJ observed:
According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
[29] See the observations in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, where Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ observed:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
When rehearing a case, the appellate court must be aware of the advantages that the trial judge had in seeing the witnesses and in forming impressions as to credibility on this basis. The court does not have such an advantage. The limitations of an appellate court were highlighted by the High Court in Fox v Percy.[30] Gleeson CJ, Gummow and Kirby JJ in their joint judgment observed:[31]
…[the appellate court] must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[Footnotes omitted]
However, it is to be noted that despite these limitations, the appellate court may still draw its own inferences and conclusions. As the members of the Court in Fox v Percy further observed:[32]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect".
[Footnotes omitted]
[30] Fox v Percy (2003) 214 CLR 118.
[31] Fox v Percy (2003) 214 CLR 118 at [23].
[32] Fox v Percy (2003) 214 CLR 118 at [25].
These statements of principle govern the approach to be followed by this Court.
The Appeal
As earlier noted it was submitted that the Judge’s approach to a number of issues was flawed. Those submissions may be conveniently summarised as follows: it was said that inadequate attention was given by the Judge to the serious nature of the allegation made against the solicitor and there was a failure to identify and apply the Briginshaw[33] principle; that when weighing Ms Shore’s evidence the Judge did not have regard to the Jones v Dunkel[34] principle; that the Judge did not adequately address the evidence of the established practices of the appellants; that the Judge overlooked the wording of the redemption agreements and annexures; that the Judge incorrectly concluded that Ms Shore was ill-advised about settling her claims; and finally, that the Judge failed to properly consider the issue of the reliability of Ms Palios’ evidence.
[33] Briginshaw v Briginshaw (1938) 60 CLR 336.
[34] Jones v Dunkel (1959) 101 CLR 298.
The Standard of Proof
Ms Shore asserted that the appellants were in breach of their duty of care by failing to give her appropriate advices relating to the settlement of her claims. Ms Shore’s case involved an attack on Ms Palios’ assertion that advices mandated by statute had been given. This led in the course of the trial to a direct attack on the evidence given by Ms Palios. The attack challenged her credibility. It is to be understood that this attack on credibility, included a challenge to Ms Palios’ evidence that oral advice was given at the time of the signing of the redemption agreements – Ms Shore’s case was that no oral advice at all was given at this time.
As extracted above, section 42 of the Workers Rehabilitation and Compensation Act stipulates inter alia, that an agreement for the redemption of a liability under that section cannot be made unless the worker has received competent professional advice about the consequences of redemption and competent financial advice about the investment or use of money to be received on redemption.
Ms Palios prepared the redemption agreements and the attached annexures in which Ms Shore acknowledged receiving competent professional and financial advice. The professional advice being referred to was the advice of the appellants to Ms Shore. It may be understood that Ms Shore’s allegation went so far as to assert that not only did she receive no oral advice at the time of signing the redemption agreements, but that she did not read any of the documents before signing and that the annexures themselves contained false information.
The standard of proof required in a civil case where serious allegations are made was discussed in Rejfek v McElroy where Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ identified the Briginshaw principle and observed:[35]
…The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v Briginshaw, per Dixon J; Helton v Allen per Starke J; Smith Bros v Madden, per Dixon J.
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v Allen per Dixon, Evatt and McTiernan JJ. …
[Footnotes omitted – emphasis added]
[35] Rejfek v McElroy (1965) 112 CLR 517 at 521-522.
Further observations were made in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[36] where the High Court explained that while the ordinary standard of proof in civil litigation, of proof on the balance of probabilities, applied even where the matter to be proved involved criminal conduct or fraud, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. In particular, Mason CJ, Brennan, Deane and Gaudron JJ observed:[37]
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.
[Footnotes omitted]
[36] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
[37] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171.
The allegations made against the appellants were of a most serious kind. The statutory scheme precluded a worker from redeeming workers compensation entitlements without a number of pre-requisites being satisfied. These included the receipt of competent professional and financial advice. Ms Shore’s case was that Ms Palios rendered this protection nugatory by having Ms Shore sign, without reading, an acknowledgment that she had received these advices when the relevant advices had not been given. The allegations amounted to an assertion that a solicitor, experienced and qualified in the specialised area of workers compensation, failed to provide necessary and basic advice and then camouflaged those deficiencies by having Ms Shore sign false acknowledgments.
The Judge in the course of his reasons made no reference to the Briginshaw principle. On the Judge’s findings there was no clear and cogent evidence to support a finding of breach.
Ms Shore bore the onus of proof to establish a want of due care in the giving of advice. The Judge considered that both Ms Shore and Ms Palios were unreliable witnesses and that the only reliable evidence that he had, came from Ms Palios’ file and the correspondences between Ms Shore and Ms Palios. It follows that there was no basis on which the Judge could make a finding as to what oral advices had been given.
As will be discussed in some detail later, it was not open to the Judge to make any finding that the advice not to accept an all-up settlement had in some way been retracted. Ms Palios’ evidence was that the advice she gave as to the amount of the all-up settlement, was given in the context of her earlier advice not to settle being rejected. Ms Shore claimed that this earlier advice had been retracted. The Judge, because of his views about the lack of reliability of both witnesses was not in a position to resolve this dispute. He needed to do so, in favour of Ms Shore, before it could be said that she had satisfied the burden of proof.
In my view, the Judge’s findings did not permit the conclusion that the onus had been satisfied. This is particularly so, having regard to the serious nature of the allegations and the degree of satisfaction required.
Jones v Dunkel
At the meeting when the redemption agreements and annexures were signed, Ms Shore attended with her companion Ronald Stuart. He was present throughout the meeting. Mr Stuart, who was present in Court for much of the trial, was not called to give evidence. The Judge addressed the failure to call Mr Stuart as follows:[38]
Counsel for the defendants, Mr Doyle, was critical of the case for the plaintiff, on account of the failure to call her friend Ron Stuart, who was present on 21 August when the redemption agreements were signed and present on the other occasions she came into the defendants’ offices. He can certainly be regarded as being “in her camp” so to speak, and he was certainly available to give evidence, as he sat in the public gallery for the better part of the trial. This might ordinarily have given rise to an inference that if called, his evidence would not have assisted her case, under the well known principle of Jones v Dunkel. The shortcoming in this submission is that this circumstance throws no further light on what the precise discussions between the parties may have been, and it takes matters no further than the conclusion already reached that Mrs Shore’s recollection is flawed.
[Footnotes omitted]
[38] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [58].
It is accepted that a trier of fact should weigh all evidence according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.[39] The trier of fact may in certain circumstances draw an inference adverse to a party who does not give evidence, ask certain questions, or call a witness who it is expected may give material evidence for that party on an issue in dispute.[40] These principles were discussed in the criminal context in Weissensteiner[41] where Mason CJ, Deane and Dawson JJ observed:
[39] Blatch v Archer (1774) 98 ER 969 at 970; Weissensteiner v The Queen (1993) 178 CLR 217 at 225.
[40] Jones v Dunkel (1959) 101 CLR 298; Brandi v Mingot (1976) 12 ALR 551; Weissensteiner v The Queen (1993) 178 CLR 217: RPS v The Queen (2000) 199 CLR 620: Azzopardi v The Queen (2001) 205 CLR 50.
[41] Weissensteiner v The Queen (1993) 178 CLR 217 at 225.
The reasoning process whereby the failure of a party to give or to call evidence is taken into account in evaluating evidence which is before the court has long been recognized by the law and is not confined to the criminal law. In Blatch v Archer Lord Mansfield observed:
"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
And in R v Burdett, a case which was decided before an accused could give evidence on his or her own behalf, Abbott CJ said:
"In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?"
[Footnote omitted]
In Brandi v Mingot[42] Gibbs ACJ, Stephen, Mason and Aickin JJ referred to the following observations of Newton and Norris JJ in O’Donnell v Reichard[43] as correctly characterising this inference:
…where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case. …
However their Honours held that the inference could not be elevated to a conclusion that the absent witness’s evidence would have exposed facts unfavourable to the case of the party failing to call that witness. Rather, the inference was limited to concluding that the absent witness’s evidence would not have assisted the case of the party who would normally have been expected to have called that witness.
[42] Brandi v Mingot (1976) 12 ALR 551 at 559.
[43] O’Donnell v Reichard [1975] VR 916 at 929.
In Weissensteiner, Mason CJ, Deane and Dawson JJ explained the rationale behind the rule:[44]
…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
[Emphasis added]
The formulation of the rule as expressed in Weissensteiner was subsequently confirmed by the High Court in Azzopardi.[45]
[44] Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228.
[45] Azzopardi v R (2001) 205 CLR 50 at [23] (Gaudron, Gummow, Kirby and Hayne JJ).

Of final relevance is the following extract from the decision of Street CJ in Buckland:[46]
…At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party. …
[Emphasis added]
[46] R v Buckland [1977] 2 NSWLR 452 at 458; the approach of Street CJ in Buckland, and in particular, the observations made in relation to the caution to be exercised with respect to the making of inferences, was referred to with approval by the High Court in Azzopardi v R (2001) 205 CLR 50 at [23] (Gaudron, Gummow, Kirby and Hayne JJ), where their Honours noted that despite that caution, “It would be going too far, however, to say that it is never reasonable to expect an accused to give, or call, evidence. ...”; see also Puric v State of South Australia (2009) 262 LSJS 411 at [23], [77]; Police v Kyriakou (2009) 103 SASR 243 at [16].
In the circumstances of this proceeding, given the florid account of Ms Shore of the meeting of 22 August 1998, the inference should have been drawn that Mr Stuart’s evidence would not have been favourable to Ms Shore’s case. This was an inference to be considered and weighed.
In my view, the absence of Mr Stuart does give rise to an inference that if called, his evidence would not have assisted Ms Shore’s case, both in regard to the content of the discussion that took place, and the general manner and circumstances of the meeting. Further, to adopt the words of Street CJ extracted above, the failure by Ms Shore to call Mr Stuart assists materially in determining what findings or inferences might fairly be drawn from the evidence called by the appellants.
The Judge erred in his consideration of the Jones v Dunkel principle.
Evidence of Established Practice
The effect of Ms Palios’ evidence, was that she had established practices that she followed when giving advice to clients about settling their workers compensation claims. Ms Palios gave evidence that she followed her established practices in her dealings with Ms Shore. If this evidence were to be accepted it would follow that at the time of Ms Shore agreeing to settle her claim and at the time of the signing of the redemption agreements, the defence case that Ms Shore had been properly and adequately advised in accordance with the duty of care owed by the appellants, would be substantially strengthened. Accordingly, this was a critical issue to be determined at trial. At the relevant time – the time of entry into the redemption agreements - was Ms Shore properly and adequately advised such that the duty of care owed to her by the appellants was discharged.
Ms Palios gave evidence she had an established practice of explaining the important aspects of redemption agreements with respect to weekly income maintenance payments, including the effect of section 35(6a), and that she did so with Ms Shore:
…I would have explained to her the effects of s.35(6)(a) [sic] that is why it was specified in the certificate. …The advice that I give is that it will affect future entitlements and I try to explain the worst situation which is that if they obtain employment and if they reinjure themselves they may lose that sum of money from their weekly payments of compensation and by August 1998 it was clear that that was going to be a serious consequence.
This evidence was challenged in cross-examination. Ms Palios rejected the cross-examiner’s suggestion that she did not explain to Ms Shore the important aspects of the redemption agreements and, in particular, the operation of section 35(6a):
Q.I suggest to you that you signed the professional advice certificate and had her sign it and the redemption agreement without giving her any further advice to that which you had given her on previous occasions.
A.I disagree.
Q.I suggest to you that you did not explain to her the effect of s.35(6)(a) [sic].
A.I disagree with you.
Q.I suggest to you did not explain to her in particular that in the event that she was to suffer a further compensable disability in the future resulting in incapacity for work she would be taken to be receiving a continuing weakly [sic] payment of $532.70.
A.I disagree with you, I would not have used the words you used, but I would have conveyed the risk to her.
Q.Again, as you have said throughout your evidence on these topics, you say ‘I would have done this’. I suggest to you have no actual recollection of doing that on this occasion.
A.Tim I signed a certificate stating that I provided certain advice to the worker. That certificate specifically states the s.35(6)(a) [sic] figure. I signed that certificate on that day, I provided that advice on that day.
Q.It is not actually true to say you have signed the certificate to say you have given certain advice, is it. The certificate doesn’t say that you have given certain advice, does it.
A.Well, I know that I provided that advice when I signed that certificate, it is actually Marilyn Shore confirming that I provided her with that advice so – that is why I signed the certificate that I have provided that advice.
Q.Well, again I suggest to you that that wasn’t the case in this instance.
A.I disagree with you.
Ms Palios’ evidence of recollection was based in part on her established practice, in part on what she was able to draw from her file notes, and partly on actual recall. Ms Palios gave evidence of specific recollections of advices given to Ms Shore from time to time. As discussed above, the Judge did not give weight to Ms Palios’ evidence of her established practice or her drawing on that practice when giving her recollections. The Judge did not appear to have addressed at all the topic of the reliability of those recollections. Rather, as expressed on one occasion, the Judge dismissed her evidence of recollection with the pejorative statement that it was no more than “abject recollection”. From this it may be inferred that the Judge gave the evidence little or no weight.
At trial, there was no challenge to the evidence of Ms Palios about her established practice. What was in issue was whether Ms Palios followed that practice when dealing with Ms Shore. Insofar as Ms Palios relied on her established practice and her file records and notes when giving evidence of her discussions and dealings with Ms Shore, it was open to the Judge to accept as he did, that in certain material respects, her evidence could be characterised as reconstruction. However, there remained the important question of whether that evidence so characterised was sufficiently reliable to allow inferences of fact to be drawn as to what had occurred. The Judge did not consider this question. The Judge made no reference in his reasons to the relevant principles governing the use of evidence of established practice.
The Judge accepted that Ms Palios relied on what he described as her “standard practice” when giving advice:[47]
…It became apparent during the course of her evidence that she was completely dependent on the file together with the usual or standard practice so far as giving advice went. She clearly retained no independent recollection of particular events or specific discussions, as the above exchange rather starkly illustrates. This state of affairs is neither unreasonable nor unexpected, as she ran at any one time hundreds of files, the majority in workers compensation, and was very busy keeping no less that [sic] four secretaries occupied with her work-load. Given these considerations and accepting these events occurred ten years previously, reconstruction was inevitable.
[Emphasis added – footnote omitted]
[47] Shore v Palios Meegan & Nicholson Holdings P/L & Palios [2009] SADC 5 at [65].
Evidence as to the established practices of an expert professional advisor is relevant, probative and consequently admissible to prove the general advices that that advisor would give in the course of professional engagements. Evidence of Ms Palios as to her established practice when advising clients with respect to redemption offers was admissible evidence. It was an item of circumstantial evidence, which could allow a conclusion to be drawn as to the probability that that general practice was followed in the present proceeding.
The approach to the admissibility of evidence of established practice is discussed in Wigmore on Evidence:[48]
[48] 1A Wigmore on Evidence (Tillers Rev) section 92.
Of the probative value of a person’s habit or custom, as showing the doing on a specific occasion of the act that is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning make it clear enough:
......
There is, however, much room for difference of opinion about the admissibility of habit in concrete cases, owing chiefly to the indefiniteness of the notion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life, a habit or custom seldom has such an invariable regularity. Hence, it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most instances. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case.
…
Subject to the foregoing distinctions, the admissibility of a person’s habit, usage, or custom as evidence that he did or did not do the act in question may be said to be universally conceded. Yet the distinctions named, as well as the individual circumstances affecting the regularity of the habit, will from time to time effect its exclusion. …
[Footnotes omitted]
Similarly, in Cross on Evidence[49] the following observations are set out with respect to course of business and habit:
…To prove an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case. Evidence of the regular practice of cleaning was admitted to prove cleaning on a particular day. …
[49] J D Heydon, Cross on Evidence (LexisNexis Butterworths Australia, 7^th ed, 2004) at [1130].
In Connor v Blacktown District Hospital[50] evidence of the regular practice of cleaning was deemed to be admissible to prove whether cleaning had occurred on a particular day. In discussing the admissibility of that evidence, Asprey JA observed:[51]
To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case (see Phipson Law of Evidence 10th ed para297). In Professor McCormick's Textbook on Evidence (1954), after defining 'habit' as a regular response to a repeated specific situation, he observes, at pp341-342, that expedience and sound reason lead to the conclusion 'that evidence that an act was habitually done by X under like circumstances will be received as evidence that it was done by X on the particular occasion', and went on to point out that 'nevertheless the judge should possess the discretion usual in this field of circumstantial evidence to exclude if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion'. In Wigmore, Anglo-American System of Evidence in Trials at Common Law, 3rd ed, vol1, para93, it is stated that, subject to the distinctions referred to in para92 which do not affect the admissibility of the evidence in the instant case, 'the admissibility of a person's habit, usage or custom as evidence that he did or did not do the act in question may be said to be universally conceded. ... evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence.
[References omitted]
[50] Connor v Blacktown District Hospital [1971] 1 NSWLR 713.
[51] Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721 (Mason JA concurring).
The remarks of Asprey JA were adopted in Olga Investments Pty Ltd v CitiPower Ltd[52] where the Court noted that evidence as to practice or habit was not required to be “invariable” practice, and that “normal” or “regular” practice was equally admissible. In Olga Investments, Ormiston JA made further observations regarding the inferences available to be drawn in relation to evidence of habit or custom:[53]
In the light of the learned trial judge's findings of fact as to the existence of the contract I have been concerned about overturning those fact findings if they were dependent upon matters not before this Court. In the end I am satisfied that they did not depend in any way upon credibility but upon the failure of the judge to draw any inference as to the existence of a relevant contract with the appellant. In turn I was concerned lest we should make a finding dependent upon habit or custom which could not be supported upon the totality of the evidence, but I am again satisfied that the failure to make any such finding by the trial judge was likewise not in any way dependent upon his assessment of the witnesses. In truth the question depended upon an assessment of the whole of the evidence and this Court is in just as strong a position as the trial judge to draw any necessary inferences.
That such an inference can be drawn from the evidence described by Charles, JA in his judgment was supported by the authorities to which he refers, in particular Wigmore on Evidence, para92-para98 in Vol1A of the Tiller Revision (1983) and the passage in the judgment of Asprey, JA (concurred in by Mason, JA) in Connor v Blacktown District Hospital (1971) 1 NSWLR 713 at 721. Reference may also be made to passages in a decision which is cited by Asprey, JA. at p721, namely, Martin v Osborne (1936) 55 CLR 367, albeit that the latter case related to proof in a summary prosecution. There (at pp375-376) Dixon, J said, inter alia:
"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference ... The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued ... the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed ... the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity in which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved."
[Emphasis added]
[52] Olga Investments Pty Ltd v CitiPower Ltd [1998] 3 VR 485.
[53] Olga Investments Pty Ltd v CitiPower Ltd [1998] 3 VR 485 at 486-487.
Ormiston JA went on to further consider the inferences able to be drawn:[54]
[54] Olga Investments Pty Ltd v CitiPower Ltd [1998] 3 VR 485 at 487.
Likewise in considering the admissibility of evidence as to events on two preceding days relating to the accused in Martin v Osborne, Evatt, J stated at p386:
"A consideration of certain leading cases may show that, under certain circumstances, it is permissible to prove a system, design or course of business extending beyond the particular act under investigation, which system, design or course of business gives a special significance to the particular act under investigation so as to enable a further and additional inference to be validly drawn as to whether the particular act was accompanied by another act."
The principles described in Martin v Osborne have been treated on many occasions as having continued validity both in respect to criminal and civil proceedings. Most recently it has been cited on an appeal in a civil matter in the High Court in support, at least in part, for the following propositions which are here likewise apposite: see G v H (1994) 181 CLR 387 at 390 per Brennan and McHugh, JJ:
"An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference. But the drawing of an inference is part of the process of fact-finding: it has to do with the minor premise of the syllogism of judgment, not with the major premise of legal principle."
[Emphasis added]
These authorities demonstrate that the evidence of established practice was relevant and probative evidence, potentially of considerable weight.
The Judge failed to give adequate weight to the evidence of Ms Palios about her established practice. This evidence was relevant, admissible and probative. Findings needed to be made about the established practice. A finding needed to be made as to whether Ms Palios followed that practice. To simply characterise her evidence as being a matter of reconstruction was not adequate. As discussed above, the real question to be asked concerned what weight should be attached to the evidence. The use of the pejorative phrase “abject reconstruction” without any analysis to justify that assertion was unhelpful and inappropriate. More was required. In the Judge’s fact-finding process, error occurred: the Judge failed to weigh relevant and probative evidence in the discretionary fact-finding process.
The above analysis is sufficient to reach the conclusion that this aspect of the Judge’s findings was flawed. However there is more. In my view, the evidence of Ms Palios, when viewed in the context of her evidence as to her established practice, should have been accepted, adding weight to the conclusion that there was no breach of duty in this respect.
The Redemption Agreement

The judge referred to what he called an “admission” by the solicitor in the course of her evidence that the settlement was in fact ill-advised. The solicitor agreed that the settlement sum was inadequate to compensate the plaintiff for her future losses. The judge asserted that Ms Palios’s evidence that she had advised against settlement was based, not on an actual memory of interaction with the plaintiff, but rather upon reconstruction. I shall return to say more of these matters.
It is instructive to note some of the principles relating to the obligation upon solicitors to keep a written record of instructions received and advice given.
In short, it is prudence, rather than principle, which dictates that a solicitor keep written records of dealings with clients. The purpose of keeping adequate notes is to aid memory. At common law it is merely advisable that a retainer be in writing: Butterworths, Halsbury’s Laws of Australia, Vol 16 (at 3 May 2010), [250-450]. Queensland is the only state in Australia where a written retainer is required: Halsbury’s Laws of Australia (ibid). In England it is the duty of a solicitor to obtain a written authority from his client before commencing a suit: Cordery A, Cordery’s law relating to solicitors (8^th ed, Butterworths, 1988) at 50, citing Allen v Bone (1841) 4 Beav 493. In R v Pugh (2005) 158 A Crim R 302, Doyle CJ said that good practice required that a solicitor obtain written instructions for an application to change a plea: [23].
If it is not required of a solicitor that he or she keep a written record of instructions received and advice given, then it seems to be unfair, as a general proposition, to draw inferences about those matters on the basis of the absence of written notations. I accept this could be done, where the file notes were plainly comprehensive in relation to all advice given and instructions received; but that is not this case. An examination of the solicitor’s file shows that on some occasions detailed notes of conversations were kept. However, on others it is plain that the written record of important interactions is scant or non-existent.
Before looking more closely at the course of events as described by Ms Palios and as reflected in the contemporaneous documents, it is useful to examine further the observations made by the judge about the evidence of Ms Palios. I have already set out the critical findings made by the judge in relation to the plaintiff’s evidence. They reflect the way the judge approached assessment of that witness’s evidence. The judge then turned to the evidence of the practitioner. He described her manner as “certainly demonstrative at times”, but said that was perfectly understandable. I take him to mean that the witness was inclined to express her feelings about the matter rather more than was appropriate in a courtroom. The transcript of her evidence suggests to me that in cross-examination she was inclined to be argumentative and imprecise. She lacked an appropriately formal demeanour and often in her answers, she went beyond the terms of the question. It could have been said that she was defensive. However, the judge was not inclined to depreciate the value of her evidence on account of her demeanour. Rather, he ultimately disregarded her evidence on the basis that it was no more than reconstruction. He said at [65] that it became apparent during Ms Palios’s evidence that:
… she was completely dependent on the file together with the usual or standard practice so far as giving advice went. She clearly retained no independent recollection of particular events or specific discussions …
Here the judge referred to a particular passage of cross-examination where the practitioner asserted that in fact she had a specific recollection of a telephone conference with the plaintiff. This conference occurred just two weeks before the plaintiff accepted a redemption of her entitlements. In giving evidence about it the practitioner was relying on her hand-written note of the telephone attendance which went into evidence as exhibit P3. Because of its importance, I set it out:
22/7/98
TAtt: Mrs. Shore.
$110,000-00
Consider
(1) Needs a bed
(2) Needs to pay legal costs.
Told her (1) & (2) is insufficient.
reasons to settle case
Need to consider whether this lump sum is acceptable to cover her future loss.
Not sufficient
Even 123,000 not sufficient but that is the max.
Should try to get the max.
She instructed to reject 110,000-00 & counter-offer $123,000-00 as detail[ed] in previous letter.
The context in which this telephone attendance occurred was that on 16 July 1998 the practitioner had written to the plaintiff advising that an offer of $110,000 had been received. On 21 July the plaintiff telephoned the defendants’ offices and had advised a staff member that she wanted “the matter to end”, but also wanted Ms Palios’s opinion.
It is plain from the evidence of Ms Palios, together with the note of the subsequent conversation, that Ms Palios advised the plaintiff that the reasons the plaintiff was proffering for wishing the matter settled were insufficient. Further, it is plain that Ms Palios advised the plaintiff that she needed to consider whether the lump sum was acceptable in terms of covering the plaintiff’s future loss; and that Ms Palios advised that it was not sufficient and that even the amount which Ms Palios had been earlier instructed to put to WorkCover, being $123,000, was not sufficient. One can also infer from the note that Ms Palios told the plaintiff that if there were to be a settlement then the attempt should be made to secure a payment of $123,000, being the maximum likely to be secured.
Against that background the following passage of cross-examination occurred:
QYou had no actual memory of any advice that you gave the plaintiff that is not evident from the face of the file, do you accept that.
ANo, I don't. My telephone attendance with Ms Shore on the 22nd, I believe, of July I do remember because it was ridiculous to settle her case for such small amounts of money and that I do remember. There are some things that, for some unknown reason, people remember. That telephone attendance, I remember.
QSo there is something about that note that prompts a memory.
AShe went against my advice and she gave me a ridiculous reason for going against my advice.
QShe didn't go against your advice.
AAt the end she did. She went against my advice even to put that other proposal. She wanted to pay for a particular item and to pay my costs and that was the basis for her to try to instruct me to accept an offer. That is what I remember. You need to ask her why she did what she did.
QI will come back to that. Can we just finalise this. The evidence you have given to his Honour about the advice that you gave, that is not reflected in the written notes that are made, it is entirely a reconstruction on your part on the basis of what I will call your present understanding of your then practice.
AIt is not a complete reconstruction. Some of it is but some of it, from reading the file, is my memory of the file.
QI suggest most of it is.
AI would not go [as far as] to say most of it. I have to disagree.
It is apparent from the judge’s reasons that he read this exchange as illustrating that Ms Palios had, contrary to her evidence, “no independent recollection of particular events or specific discussions”. It must be assumed that the judge misunderstood or overlooked this aspect of the practitioner’s evidence. However, the passage of transcript makes it plain that the practitioner did claim an independent memory of this important conversation. In my view, it is not surprising that she did so, having regard to the content of the conversation. I consider that, contrary to the judge’s findings, the handwritten note itself provided substantial (written) evidence that the plaintiff was advised against a redemption. It is significant in terms of the ultimate findings. It is unsatisfactory that the judge disregarded or overlooked, not only the clear thrust of the note, but also the practitioner’s assertion that she recalled the conversation.
Furthermore, the judge appears to have interpreted the note as indicating that advice was given to settle. He said [60]:
Advice was clearly furnished to settle for $123,000 during the conference of 22 July, but this was rejected by WorkCover, which counter-offered the $116,500 ultimately accepted by Mrs Shore. This was communicated to her without comment in the letter of 31 July. It is apparent that the solicitor was recommending settlement in general, but at not less than $123,000, in particular. It is also apparent that as she had immediate needs, Mrs Shore was prepared to forego the difference of $6,500 as a trade-off in order to finalise matters quickly.
As noted, on my reading of the file note, Ms Palios was plainly advising the plaintiff not to settle, but advising that if she were determined to settle, she should try to get the maximum. Remembering that the plaintiff had, a day before this conversation, told one of the defendants’ staff that she “want[ed] the matter to end but want[ed] Ms Palios’ opinion”, this interpretation of the note is the obvious one and, in my view, the judge’s interpretation of it is strained.
The judge then went on to discuss another passage of cross-examination which he said illustrated the “inherent, indeed unavoidable risk of reconstruction”. He said that the further passage demonstrated that the practitioner “recant[ed] the terms of the advice given on 21 August”, being the date when the agreements and the certificates were executed by the plaintiff. The context of this exchange was as follows.
Counsel for the defendants had not put to the plaintiff that, in the course of any discussion with Ms Palios about the value of the ongoing weekly payments, there was mention of a particular amortised sum, or estimate of one. However, in cross-examination, the practitioner said she would have given an estimate of the value of that benefit, based on the weekly payment enduring for the balance of the working life of the plaintiff, and that the figure would have been more than $300,000. The practitioner agreed that she had made that rough calculation in the witness box. She said she would have looked at the table from the text book by Luntz and given the plaintiff a figure based on that table and an assumption that she was unable to resume work at any time before her retirement age. Ms Palios was confronted with the fact that no such assertion had been put to the plaintiff. She responded that she would not have signed the certificate stating that she had given such advice unless she had given it. It was put to her that there was no evidence in the file of such a figure being arrived at. The practitioner said that did not detract from her evidence. The judge referred to this as a concession that the “process” was “no more than abject reconstruction”. He said the volunteering of a capitalised figure was “very much by way of an afterthought”. The judge went on to observe that it was “surprising” that if this advice, or something like it, had been given and if the effect of s 35(6a) had in fact been explained in a way that suggested a “dollar for dollar” reduction of any future weekly payments, it was likely that the plaintiff would have made some mention of these matters in her own correspondence to the defendants.
In my view these criticisms of the practitioner’s evidence do not justify the entire rejection of the evidence she gave. I do not think it was fair to the practitioner, or reflective of the quality of the evidence she gave, to select the last topic – which was perhaps an example of an area where the practitioner’s evidence was indeed weak because of the absence of cross-examination of the plaintiff on the topic – and then use that as a basis for rejecting the entirety of the witness’s evidence. Evidence based on reconstruction can be of varying quality. Here, the judge had before him a witness who for a number of years had been specialising in workers’ compensation work. She worked in a firm which was known to specialise in that area. At the time of these events, the practitioner claimed to have the conduct of some five hundred files, the majority of which were workers compensation matters. The nature of the work arising in that jurisdiction to a large extent lends itself to the implementation of systems and processes which in many respects are able to be utilised repetitively.
This is illustrated by a passage of evidence and a letter sent by Ms Palios to the plaintiff which was not mentioned by the judge, at least for this purpose. On 16 June 1998 the plaintiff was sent a two-page letter setting out in some detail what it described as the “legal effect” of accepting a redemption lump sum. It dealt with such matters as the cessation of weekly benefits, taxation of the lump sum and the preclusion from receipt of social security benefits for a period of time. Importantly, it also dealt with the prospect that, if in the future alternative employment was obtained and a subsequent work related incapacity occurred, there might be a reduction to future entitlements of income maintenance (weekly benefits) and a refusal to pay a portion of medical expenses in order to make allowance for the redemption payment then being considered. It also addressed the absence of any entitlement to future medical expenses, even through Medicare. In addition, it advised of the need to receive financial advice in relation to use of any lump sum and professional advice on the effects of the redemption, which last could be provided by Ms Palios.
In examination-in-chief, Ms Palios explained the circumstances in which such a letter would be written. She said that when the insurer indicated that it wished to enter into negotiations in relation to a lump sum and when the client indicated that they also wished to enter such negotiations and “were serious about it”, a written advice as to the effects of redemption, such as the letter of 16 June, would be sent. Ms Palios said that she must have received a clear indication from the plaintiff that she wished to redeem her future entitlements, resulting in the letter being sent.
I consider that an assertion such as this, based on well-established practice, was not one which was to be lightly disregarded by the court. The same goes for the practitioner’s assertion that she would not have signed the certificate of 21 August attesting to having given relevant and adequate advice, had she not done it. In a situation such as this, where the practitioner had the advantage of long experience in the field of workers’ compensation, evidence based on reconstruction, even where not founded in, or linked with, documents, should not have been depreciated, just because it was reconstruction.
For the same reasons, note-taking might well be slight. Particular analyses, processes and advice might be repeated so often that only minimal, concise notes might be made.
There is a theme or underlying assumption which the judge seems to have made which, in my view, affected all his findings in this matter. The judge seems to have taken the view throughout that the plaintiff should not have chosen to accept a redemption of her entitlements. He spoke of the solicitor’s “admission during the course of her evidence that the settlement was ill-advised”: [64]. It is true that Ms Palios used the adjective “ill-advised”, but she was at pains to point out that it was not for her to determine what was in the best interests of her client. She saw her role as being to convey information to a client and to advise. But, as she pointed out, only clients had the ability to discern if they had the capacity to work, or would later seek further medical treatment or, generally, what was in their best interests. Only a client knew whether he or she would attempt to get a job the very next week. She pointed out that a client would not necessarily be totally frank about such issues. The judge found that “until the prospect of discontinuance or reduction of [the plaintiff’s] entitlements became critical, there was simply no need or imperative to redeem. On any view it was not in her interests to do so.` … she was far better off remaining in that situation, than she would be by prematurely redeeming all her benefits”: [80].
It seems to me that underlying these findings was an inappropriate elevation of the role of the solicitor to one of decision-maker, rather than advisor. I do not overlook the evidence that the plaintiff was punctilious in seeking the advice of Ms Palios at every step; but that is not to say that she was abdicating her role of decision-maker to Ms Palios. So much is evident from exhibit P3, the file note Ms Palios made on 22 July 1998, to which I have already made extensive reference. Nor do I accept the respondent’s submission on this appeal that the plaintiff was in a position of peculiar vulnerability in relation to her claim. On the contrary, the plaintiff’s letters to the defendants demonstrate to me a woman of intelligence, literacy and formality. It is clear that she had her own plans for the money she would receive and her own vision of her future. Indeed, it is noteworthy that when she spoke to the financial planner on 21 August 1998 (a conversation of which she had no memory) she told him that she planned to return to work. That very fact undermines the judge’s assumption that it was in the plaintiff’s best interests to “stay on the system”. Accordingly, the judge’s finding that, had the plaintiff been properly advised, “the overwhelming probabilities” were that she would not have settled [86], is thereby undermined.
I digress to address a point made by counsel for the respondent. The judge made no specific finding to the effect that the plaintiff told Mr Field that she planned to return to work. The judge accepted Mr Field’s evidence generally as to his interview of the plaintiff on 21 August 1998.
Mr Field’s evidence that the plaintiff told him of the plan to go back to work was based on what cross-examining counsel suggested was a scant and ambiguous note, made at the time. In answer, Mr Field strongly asserted that the note was not ambiguous to him. He said the plaintiff had “obviously” indicated as much to him. Since the plaintiff’s evidence about this interview was discredited, there was no evidence of any weight in opposition to Mr Field’s. In these circumstances, I consider the Court can safely proceed on the basis of Mr Field’s evidence.
I make clear that I have not given any weight to the appellants’ submission that adverse inferences should be drawn against the plaintiff’s case on account of her failure to call her companion, Mr Stuart, who attended various conferences with the defendants. The appellants’ argued, both to the judge and to this Court, that since Mr Stuart was apparently present at a number of conferences during which the plaintiff was given important advice, the failure to call him allowed an inference against the plaintiff’s case that the relevant advice was in fact given. Like the judge, I would have been very slow to draw such a conclusion. The advice in question was of a technical nature and was of concern primarily to the plaintiff, not to Mr Stuart. There is no reason to think that he would have understood the advice to such an extent that he would have retained it in his memory. Nor was there any reason to think he would have read the correspondence passing between the parties, so as to give him a better understanding of the various conversations he heard. There is no evidence that Mr Stuart had any role in supporting the plaintiff through these proceedings, other than driving her to and from appointments.
Conclusion

It is plain that all witnesses in the trial laboured under difficulties consequent upon the passage of over ten years between the events the subject of the action and the trial. This led to the plaintiff’s evidence being rejected, after being shown to be unreliable on the key conversations and events. That rejection was inevitable, in my view, having regard to the discrediting of the plaintiff in cross-examination. The result was that her evidence became valueless in terms of proving key aspects of her case.
The judge was unpersuaded by much of Ms Palios’s evidence, including her assertion that she roughly quantified the total value of the plaintiff’s weekly benefits in the event that they extended to retirement age. He expressed himself as being forced to resort to such objective facts as were found to be proved in order to determine the probabilities of what advice was, and was not, furnished to the plaintiff. In this way, rather than being a contest between the evidence of plaintiff and defendant, the determination of the issues devolved to a situation where Ms Palios’s evidence as to what she advised, or believed she would have advised, was discredited by perceived deficits or inadequacies in the solicitors’ file.
I consider that there are profound difficulties in this approach. As I have observed, it takes as its starting point an assumption that the solicitors’ file contains a record of all relevant advices and instructions. Strictly, there is no obligation upon solicitors to keep a file in that manner. The file in question is patchy, rather than even, in the way interactions are recorded. Such a collection of documents is an inadequate means of discrediting sworn evidence given by a practitioner. I do not consider it was open to the judge in this case to make positive findings as to the absence of relevant advice based solely on deficiencies in the file.
In addition, the rejection of a witness’s evidence, here Ms Palios, does not amount to proof of the contrary of her evidence. For example, the failure of Ms Palios to satisfy the judge that she gave explicit advice in certain terms about the impact of s 35(6a) does not provide a basis for finding that no advice in any terms was given. Even a finding that inadequate advice was given would require, first, a finding of what advice was given. In the state of the evidence, that was extremely difficult.
In addition, the judge seems to have evaluated Ms Palios’s evidence in light of an ongoing assumption that settlement was ill-advised from the point of view of the plaintiff. On the basis of Mr Field’s evidence that the plaintiff told him, on the occasion of signing the redemption agreement, that she planned to go back to work, that assumption was not well-founded. Whilst I acknowledge that the plaintiff indicated throughout that she wished to have the benefit of Ms Palios’s views, her position in the final stages of the negotiation, when the prospect of receiving a significant sum was in issue, appeared to depart from her earlier attitude.
In the end, I consider that there are fundamental flaws in the approach taken by the trial judge in this difficult case. In my view, once the plaintiff’s evidence of not having received certain advice was discredited, it was not open to the trial judge to find that the plaintiff was able to discharge the onus of proof upon her. As I have said, the rejection of the plaintiff’s evidence on key matters was inevitable. That rendered all her denials of receiving specific advice unreliable. The same situation would obtain on any retrial. Acceptance of the plaintiff’s evidence was vital to the proof of her case.
In view of my finding that the decision of the trial judge was not, in the state of the evidence, open to him, and that the claim must fail, there is no point in considering the issues raised by the respondent’s cross-appeal.
I would allow the appeal, set aside the orders of the trial judge and dismiss the claim.