Smith v McCusker QC [No 3] - [2013] WASCA 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SMITH -v- McCUSKER QC [No 3] [2013] WASCA 60

CORAM: McLURE P
PULLIN JA
NEWNES JA

HEARD: 22 - 23 OCTOBER 2012

DELIVERED : 6 MARCH 2013

FILE NO/S: CACV 49 of 2011

BETWEEN: JAMES GARNETT SMITH
ELIZABETH ANNE SMITH
Appellants
AND
MALCOLM McCUSKER QC
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :SMITH -v- McCUSKER QC [No 7] [2011] WASC 88
File No  :CIV 1230 of 1995

Catchwords:

Tort - Negligence - Alleged negligence of barrister in providing opinion - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed
Application to adduce additional evidence dismissed

Category: B

Representation:

Counsel:

Appellants: Second-named appellant appeared in person
Respondent: Mr C L Zelestis QC & Mr M N Solomon

Solicitors:

Appellants: In person
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Hammond Worthington v Da Silva [2006] WASCA 180
Ives v Lim [2010] WASCA 136
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
Smith v McCusker QC (Unreported, WASC, Library No 970415, 5 September 1997)
Smith v McCusker QC [2000] WASCA 320
Smith v McCusker QC [2001] WASCA 85
Smith v McCusker QC [2003] WASC 150
Smith v McCusker QC [2005] WASCA 226
Smith v McCusker QC [2010] WASCA 55
Smith v McCusker QC [No 6] [2009] WASC 381
Smith v McCusker QC [No 7] [2011] WASC 88
Vella v Bowden [2011] WASCA 158
Western Australia v Watson [1990] WAR 248

McLURE P: I agree with Pullin JA (with whom Newnes JA agrees) that this appeal should be dismissed. However, I do so for different reasons. The appellants appeal from the decision of the Chief Justice dismissing their claims against the respondent for breach of contract and negligence in the provision of legal services to the appellants in the 1980s.
This litigation has had a long and tortuous history. Much of the delay is attributable to the fact that the appellants are not legally represented. Mrs Smith conducted the 11‑day trial and the appeal on behalf of the appellants. Unfortunately, most of the grounds of appeal are vague general assertions. The difficulties created by the grounds are not ameliorated in any way by the appellants' written submissions. The respondent's legal representatives have done what they can to assist the court to identify and categorise the alleged errors for which the appellants seemingly contend. Notwithstanding their best efforts, the task of deciding this appeal is unusually burdensome and time consuming. It is necessary to detail the background.
The appellants' claims arise out of legal advice provided by the respondent in a written opinion dated 21 March 1989 (the Opinion) concerning the prospects of success of the appellants' claims against the Commissioners of the Rural and Industries Bank of Western Australia Ltd (the R & I Bank) and the significant delay in the provision of the Opinion.
At the material time, Mr Smith was the holder of a conditional purchase lease of 2,684 acres of land in rural Borden which the appellants lived on and farmed on a part‑time basis. In the second half of 1976 the appellants resolved to develop and operate the farm on a full‑time basis. At that stage, the farm was partly cleared and a portion of it was used for cropping. Other parts of the farm were used for the raising of pigs.
In early 1977 the appellants wished to acquire a new and larger tractor for use in the development of their farming operations. The appellants' indebtedness at that time was modest. It was in the order of $2,000. They approached their bank, the National Bank of Australia (NAB), for funds to purchase the tractor. NAB refused their request. They then approached Mr Richard Danks, the Manager of the Ongerup branch of the R & I Bank for finance.
In March 1977, the R & I Bank orally agreed to advance $7,000 by way of term loan for the deposit on a tractor (the tractor loan) and to provide an overdraft facility with a limit of $3,000 for the purpose of paying out existing creditors, including NAB, and for working capital for the farming operation. The overdraft was subject to annual review. The balance of the purchase price for the tractor ($10,340) was financed by the Commonwealth Development Bank (CDB) through a hire purchase agreement. The tractor loan was to be repaid at the rate of $2,000 per annum. The hire purchase agreement provided for three annual instalments, the first of which ($4,856) was due in March 1978.
Prior to formal approval of finance by the R & I Bank, Mr Danks prepared a cash flow budget for the appellants' farming operation (the cash flow budget) for the period April 1977 to March 1978 (the budget period). The cash flow budget included information supplied by the appellants.
The income actually earned by the appellants in the budget period was significantly below, and the expenses incurred were significantly above, those provided for in the cash flow budget. As at March 1978, the appellants' overdraft with the R & I Bank had blown out to more than $8,000. That did not include any payment of instalments under the tractor loan or the hire purchase agreement.
In early 1978, in the context of the first annual review of the appellants' overdraft, the appellants requested an increase in their overdraft limit to $14,000. That request was declined. The appellants then applied to the Rural Adjustment Authority (RAA) for $42,454 (half of which was for carry on) and to the CDB for financial assistance. Both applications were refused.
In July 1978 the R & I Bank approved a temporary increase in the overdraft limit. Later in 1978, the appellants negotiated with Western Livestock for the provision of financial assistance. Around the same time, farm advisors employed by the R & I Bank visited the farm. On their recommendation, the appellants' overdraft limit was increased to $7,000. That did not involve any increase in lending but simply formalised the existing indebtedness.
In January 1979, the overdraft limit was increased to $10,000. Again, that did not involve any increase in lending but formalised the existing indebtedness. In December 1979 the appellants requested an advance of $36,000 by way of loan from the R & I Bank. The application was refused. In December 1981 the R & I Bank foreshadowed issuing a demand against the appellants for repayment of their debt.
In October 1982 the appellants applied for and obtained from Town and Country Building Society (the Building Society) a loan of $135,000 for the purpose of paying out the R & I Bank, acquiring some capital items and for working capital for the farm. The Building Society made a further advance of $20,000 to the appellants during 1984.
The appellants did not make the repayments required under the terms of the Building Society loan. Demand was issued. After an unsuccessful mortgagee sale in May 1986, the Building Society sold the farm by private treaty in May 1989. The proceeds of sale were insufficient to satisfy the appellants' entire debt owed to the Building Society. The outstanding balance owed to the Building Society was later written off and waived by it.

The action against the R & I Bank

In November 1979 the Legal Aid Commission of Western Australia (Legal Aid) granted legal aid to the appellants for the purpose of investigating and pursuing a cause of action against the R & I Bank. In October 1980 Mr Barry Rowland QC provided a preliminary opinion with respect to the prospects of success and a draft statement of claim. In May 1981 Mr Rowland provided further advice and a revised statement of claim. In September 1981 Mr Rowland provided advice on the quantum of damages the appellants might receive from the R & I Bank.
In January 1982 Legal Aid extended aid to the appellants for the purpose of commencing proceedings against the R & I Bank. Aid was granted to cover all matters up to, but not including, listing the matter for trial.
In August 1982 the appellants commenced Supreme Court proceedings against the R & I Bank claiming damages for breach of contract and negligence (the Bank Action).
In May 1985 the appellants instructed a new solicitor, Mr John Gilmour of Gilmour Richardson, to represent them in the Bank Action. Mr Gilmour asked the appellants to provide a witness proof, which Mrs Smith did shortly before August 1986. In June 1985 the appellants filed an amended statement of claim which pleaded, in effect, a 'sufficient finance' claim and a 'proper budget' claim. The amended statement of claim (which was in the brief provided to the respondent) pleaded, inter alia, that:
(a)in or about March 1977 the appellants sought from Mr Danks, on behalf of the R & I Bank, finance to purchase a tractor and an overdraft to enable them to expand to full time their farming operations; at the same time the appellants sought and received from Mr Danks advice as to the financial aspects of such proposed expanded programme (par 3);
(b)Danks prepared a cash flow budget that advised the appellants of the extent of the farming operations for the year, the income they could expect and the outlays and time of outlay of moneys required to produce such income (par 5);
(c)the cash flow budget represented that by expending money for the purposes shown, the applicants would be able to carry on farming operations within the stated financial constraints and earn the stated income (par 6);
(d)the R & I Bank represented that it would provide an overdraft facility to enable the appellants to carry on economically practical farming operations for the ensuing year and that the overdraft would be revised and renewed each year to provide sufficient money reasonably required by the appellants to enable them to continue their expanded farming operations in an economically practical manner (par 7);
(e)in reliance on and induced by the advice and representations above, in April 1977 the appellants entered into an oral agreement whereby the R & I Bank agreed (inter alia) to advance $7,000 for a deposit for a tractor; to supply to the appellants a cash flow budget; provide an overdraft facility that in the 1977/78 year would be sufficient to enable the appellants to live and farm in accordance with the cash flow budget; and supply further overdraft facilities from year to year which would be sufficient to enable the appellants to continue to finance their reasonable farming commitments (pars 8, 11);
(f)it was a term of the agreement that the R & I Bank would prepare a proper budget that was suitable for the appellants' purposes and that proper farming operations envisaged within such budget were capable of being effected within the stated financial constraints (par 9);
(g)the cash flow budget was completely unrealistic and incapable of enabling the appellants to expand their farming operations (the budget made insufficient provision for fertiliser, feed for pigs and normal farm requirements and made provision for income for wheat and barley that was beyond the yield capacity of the land capable of being cropped) (par 12).
In August 1986 Mr Gilmour briefed the respondent to provide an opinion on the prospects of success of the appellants' claims against the R & I Bank. The respondent provided the Opinion to Mr Gilmour on 28 March 1989. Mr Gilmour provided a copy to Legal Aid on 29 March 1989.
The Opinion states that the primary purpose of the respondent's brief was to advise on the quantum of damages recoverable by the appellants in the Bank Action against the R & I Bank (pages 1, 37). However, he reviewed the issues in the Action by reference to how they were then pleaded, focussing on the sufficient finance claim and the proper budget claim. He concluded that the Bank Action was most unlikely to succeed and if it were to succeed at all, the awarded damages would be comparatively nominal. Following a review of the contemporaneous objective evidence, the respondent opined that:
•it was far more likely that a court would conclude that the figures for estimated expenditure and income contained in the cash flow budget were over optimistic estimates provided by the appellants to the R & I Bank which were accepted uncritically;
•it was unlikely that a court would accept that the appellants placed any real reliance on the budget figures;
•it was unlikely that a court would accept that the R & I Bank gave an undertaking to provide 'whatever finance was necessary' in order to assist the appellants in their proposed development programme for the farm, all documents pointing to the fact that there was a simple and clear arrangement for the provision of $7,000 to enable the appellants to purchase the tractor and $3,000 carry on finance (including Mrs Smith's letter in support of the application to the RAA which did not suggest that the appellants, at that time, believed that the R & I Bank had undertaken to provide finance beyond the agreed $3,000 working capital or that the R & I Bank had caused their problems);
•there was evidence that the appellants were unlikely to have succeeded in their farming operations even if the R & I Bank had provided additional finance to a level which the appellants would have regarded as reasonably sufficient.
In 1989 the appellants engaged new solicitors, Messrs Haynes Robinson of Albany. The solicitors retained Mr Darryl Williams QC to provide advice on the prospects of the appellants' claim against the R & I Bank. In June 1990 Mr Williams provided advice which was more positive about its prospects than that provided by the respondent.
In March 1991 Mr David Van Zalm of junior counsel provided an opinion on prospects, which was also positive.
Later in 1991 Legal Aid extended aid for the purpose of providing the appellants with continuing legal representation up to and including the trial of the Bank Action, and also for the purpose of obtaining advice from senior counsel on the quantum of damages likely to be recovered. In August 1993 Mr Peter Nisbet QC provided an opinion on quantum.
In August 1994 Legal Aid terminated the grant of aid to the appellants. They requested reconsideration of the termination. In October 1994 Legal Aid advised the appellants as to the reasons why aid had been terminated. The appellants requested further reconsideration of the grant of aid. In August 1996 Legal Aid confirmed the decision to terminate aid.
No substantive step had been taken by any party in the Bank Action since February 1986. In April 2009 the Chief Justice dismissed that action for want of prosecution and to avoid an abuse of process.

The action against the respondent

In March 1995 the appellants commenced Supreme Court proceedings against the respondent and Mr Gilmour (the Respondent Action). The appellants made a number of unsuccessful attempts to formulate a statement of claim. In April 1997 they applied for leave to file a proposed substituted statement of claim (the statement of claim). Master Sanderson refused leave and foreshadowed that he was minded to enter judgment for the respondent. The appellants were permitted to file further material going to that question. They filed five volumes containing evidence and submissions. The Master dismissed the action and entered judgment for the respondent and Mr Gilmour.
The appellants appealed to the Full Court. Their appeal in relation to the respondent was upheld and the appeal in relation to Mr Gilmour was dismissed: Smith v McCusker QC [2000] WASCA 320 (the 2000 Appeal). Templeman J, with whom Malcolm CJ and Owen J agreed, identified a number of questions of which one (question 2) was whether the facts and matters pleaded in par 9 of the statement of claim before the Master disclosed a cause of action. In addressing that question the Full Court, in accordance with established legal principle, took into account external documents referred to in the statement of claim, including the Opinion, the proofs of evidence prepared for the respondent by Mrs Smith and the pleadings in the Bank Action prepared by Mr Rowland [49]. Assuming the correctness of the facts pleaded in the statement of claim, the Full Court concluded that it disclosed a cause of action in negligence in the following respects, namely that the respondent:
1.failed to read or to take into account that part of his brief which disclosed that the Smiths did not rely on the 1977 cash flow budget, but on the bank to provide proper advice as to the implementation of the Smiths' proposal for the expansion of their farming activity;
2.therefore placed undue emphasis in his opinion on the difficulties which the Smiths would face in seeking to prove that they had relied on the budget;
3.failed to read or to take into account that part of his brief in which Mrs Smith explained that she and Mr Smith had provided only approximate figures to Mr Danks for inclusion in the cash flow budget, on the basis that they would not be held to those figures;
4.therefore failed to point out that the allegation in the bank's defence that the figures had been provided by the Smiths', while true up to a point, was largely irrelevant to their case;
5.failed to recognise an inconsistency in the Smiths' statement of claim against the bank, which would have been cured by omitting references to reliance on the budget and pleading reliance on the bank to provide a proper budget;
6.failed to familiarise himself with that part of his brief in which it was explained how the actual costs for 1977 had exceeded the budget;
7.failed to familiarise himself with that part of his brief in which Mrs Smith described how the application to the Rural Adjustment Authority came to be made, thus explaining why, as he put it in his opinion (par 18) 'there is not a hint … of any suggestion that the R & I Bank was responsible for [the Smiths'] difficulties … ' [160].
Templeman J also concluded that there was an arguable case on causation [167]. The respondent applied to recall the orders made in the 2000 Appeal on the ground that the Full Court had erred on the question of causation. The Full Court dismissed the application, noting that the appellants' pleaded claim was that they relied on the R & I Bank for advice and guidance generally in the circumstances as they existed from time to time: Smith v McCusker QC [2001] WASCA 85 [11], [18] (the supplementary decision).
After delivery of judgment in the 2000 Appeal and the supplementary decision, the respondent applied for summary judgment. On 14 August 2003 Master Sanderson entered summary judgment for the respondent. The appellants were successful in the appeal against Master Sanderson's decision: Smith v McCusker QC [2005] WASCA 226 (the 2005 Appeal. The majority (McLure JA & Roberts‑Smith JA) concluded that, having regard to the Full Court's reasons in the 2000 Appeal and the supplementary decision, it was not open to enter summary judgment. On the assumption that the appellants had the onus of proving on the balance of probabilities what they would have done if the bank had acted without negligence, it was noted that:
The answer to the question depends upon identifying what the substance of the Bank's advice and guidance ought to have been. That is a vital intermediate step which needs to be answered before Mrs Smith should be asked to volunteer what the appellants would or would not have done if the Bank had not been negligent [103].
It was also noted [106] that Mrs Smith's oral response to questions from the bench indicated that the appellants had not thought through or clearly identified what advice and guidance the R & I Bank should have given and how it would have affected their conduct. Fairness to the respondent required that the appellants be required to provide that information. They did so.

The appellants' pleading

The appellants' case against the respondent at trial was based upon the case which the appellants contended they had against the R & I Bank. The appellants' pleaded case against the R & I Bank in the Respondent Action was, in summary, that:
(a)The R & I Bank owed the appellants a duty, in contract and in tort, to provide them with proper advice and finance;
(b)Such proper advice included the following:
(i)that the appellants should formulate a development plan, assess the development works to be undertaken and the costs and income therefrom in order to establish whether long or short term finance should be sought for individual items of development;
(ii)that no decisions should be taken, including what sort of tractor to buy, until the plan was completed;
(iii)after establishing the plan, undertake an individual enterprise analysis of the pig operation;
(iv)from that information, determine that the ability to repay debt without generating more income was not good;
(v)it may be better to restrict further borrowing to the overdraft and some stock firm finance, which, together with off‑farm work and share farming, sale of posts and increased pig income, may put the appellants in a better cash flow position before borrowing larger amounts;
(vi)after drawing up the cash flow budget Danks should have advised that:
•due to the deepening debt level revealed by the budget he had prepared, he and the appellants should reappraise the intended borrowings with an extension of the business plan for one or two more years to reveal the trend of the deepening debt level revealed in the budget and allow for an informed decision about the appellants' financial future;
•the appellants should obtain farm management assistance to prepare a long term plan with a view to applying for a CDB development loan and that the appellants should give informed consideration to spending the first two years or whatever time was necessary utilising the overdraft and stock firm finance to consolidate their enterprise after which they should apply to the CDB for a long term development loan;
(c)The R & I Bank negligently advised that the cash flow budget which it prepared and gave to the appellants would be a reasonable programme for the continued development of their farm;
(d)If the appellants had received proper advice they would have rejected the plan contained in the cash flow budget, adopted the alternative plan which should have been recommended by the bank manager, being to continue to develop their farm with R & I Bank or other bank and stock firm finance initially and then ultimately seek a CDB long term development loan on favourable terms;
(e)The appellants thereby suffered loss and damage.
The appellants' claim against the respondent was that:
(a)the respondent negligently failed to opine upon their proper advice case against the R & I Bank;
(b)the respondent negligently placed undue emphasis upon the question whether the appellants had relied upon the cash flow budget;
(c)the respondent negligently delayed the provision of the Opinion;
(d)The respondent's negligent Opinion caused or contributed to the appellants losing legal aid with which to conduct the case against the R & I Bank and thereby caused the loss of the opportunity to bring their claim against the R & I Bank to trial, or the loss of the opportunity to do so with legal representation and/or the loss of opportunity to do so with expedition;
(e)the opportunities to conduct the appellants' case against the R & I Bank, to do so with legal representation and/or in a timely way were things of value;
(f)the respondent's negligent delay also contributed to the loss of the opportunity to avert a sale of the appellants' farm by the Building Society and to incur increased liability for interest to the Building Society.
The appellants also pleaded (in [55]) breaches of duty that corresponded with the other arguable breaches identified by the Full Court in the 2000 Appeal.

The trial judge's findings

The trial judge determined the respondent's liability for the claims based on the content of his Opinion by reference to the instructions he was given, and any further instructions on particular topics that it was his duty to seek, with respect to the dealings between the appellants and the R & I Bank, not by reference to the findings of objective fact that might be made at trial with respect to the actual dealings which took place [79]. The findings in the latter category were relevant to an assessment of the value of the opportunity to pursue a claim against the R & I Bank with the benefit of legal representation and in a timely fashion. Thus the evidence given by Mr Danks was not relevant to the liability of the respondent but only to an assessment of the value of the opportunity which the appellants claim they lost [79] ‑ [80].
The trial judge upheld the appellants' claim that the respondent breached his duty to provide advice in a timely fashion, which resulted in the respondent's Opinion being delivered approximately 15 months later than it should have been [373]. However he concluded that the breach did not cause any loss or damage.
The trial judge rejected all other claims that the respondent had breached his contractual and/or tortious duties to the appellants. In particular, he concluded that:
(a)nothing in the materials or instructions provided to the respondent enlivened the possibility of a claim against the R & I Bank based upon a failure to provide proper advice and guidance [341];
(b)no advice was sought by the appellants or given by Mr Danks at their first meeting in March 1977 [117];
(c)even if there was an arguable proper advice case, it would be futile because the appellants were aware of the advice which they had and had not received [342];
(d)the cash flow budget was prepared for R & I Bank purposes [219], [222], [252], [452];
(e)the appellants signed the application form for finance [120];
(f)the appellants were aware of the deficiencies in the cash flow budget as soon as they received it and placed no reliance on it [342];
(g)the objective evidence was that the appellants requested finance for the deposit on the tractor and an overdraft of $3,000, not a long term development loan [342];
(h)the appellants eschewed any case based upon the proposition that the R & I Bank should have advised them not to borrow funds and to continue with their current programme without acquiring a new tractor [343], [470];
(i)any barrister given the materials and instructions provided to the respondent could only reasonably have concluded and advised that the claim against the R & I Bank was hopeless, and that there was no realistic prospect of recovering any significant damages [352]. In particular:
(i)there was no evidence of reliance on anything done or not done by the R & I Bank;
(ii)there was no evidence that the appellants' farming strategy was impeded by lack of finance which, in any event, was increased by the R & I Bank;
(iii)the materials established that the appellants were incapable of farming profitably and that the unprofitability of their farming operations had nothing to do with anything done or not done by any financier; and
(iv)the appellants were committed to the pursuit of their farming venture no matter what they were told by the many financial institutions who advised them that the venture would not be sufficiently profitable to enable them to service the borrowings [356];
(j)the respondent's advice on the merits had no bearing on the termination of legal aid [414];
(k)the respondent's delay in providing his Opinion did not impact upon the prospect of the appellants bringing their case to trial prior to the termination of legal aid [416];
(l)in any event, the termination of legal aid did not cause the appellants to lose the opportunity to pursue their claim against the R & I Bank; the cause was the appellants' decision to inject all of their energies into the claim against their lawyers [419];
(m)even if the respondent breached his duties relating to the proper advice claim, the cash flow budget claim or the sufficient finance claim and causation could be established, the claims would have failed at trial, this being an assessment based on all the evidence at trial not just on the material before the respondent. In particular:
(i)the evidence at trial did not provide a plausible basis for the imposition of a duty to advise [449];
(ii)any agreement for long term support (which the trial judge identified as the sufficient finance claim) is inconsistent with the contemporaneous documentation [450];
(iii)as the tractor was ordered after the first meeting with Mr Danks, the duty to advise can only relate to that meeting (in March 1977) [453];
(iv)the overwhelming bulk of the information in the cash flow budget was supplied by the appellants [455];
(v)it was obvious to the appellants that the finance was for one year [456];
(vi)the appellants signed the application form for the advances [457];
(vii)there was no reliance on the cash flow budget in the sense of making farming decisions on it [459] ‑ [460];
(viii)both appellants were aware of the defects in the cash flow budget [459];
(ix)regardless of the advice given to the appellants, they would not have been diverted from their farming strategy and would have sought finance elsewhere [465] ‑ [466];
(x)the appellants having eschewed a case that the R & I Bank should have told them not to borrow money to buy the tractor, the assumed breaches did not cause any relevant loss;
(xi)even if the evidence established breach and causation, there was no evidence capable of supporting the heads of damage claimed by the appellants.

The role of Mrs Smith in the Bank Action

Mrs Smith played a central role in the appellants' dealings with the R & I Bank which became the subject of the Bank Action. She was also central in providing instructions to those providing legal services to the appellants in relation to the Bank Action, including the respondent. However, her involvement went further than merely giving instructions. She engaged in activities that a legal advisor would ordinarily be expected to perform, including preparing her own proof of evidence and investigating and preparing the appellants' claim for loss and damage in the Bank Action. Mrs Smith also liaised with and obtained reports from a number of experts. It is clear that Mrs Smith had her own views relating to the nature and scope of the appellants' claims against the R & I Bank.
The material in the brief to the respondent (the Brief) included a number of proofs of evidence of Mrs Smith, including a 1980 proof prepared by or under the supervision of the appellants' then solicitors (the 1980 proof), a two‑part proof prepared by Mrs Smith at Mr Gilmour's request (the 1986 proof) and a proof prepared by Mr Gilmour in 1987 (the 1987 proof). There were other sources of instructions from Mrs Smith, including notes dated 14 March 1982 to her solicitors, notes of conferences with the respondent and a letter dated 12 April 1988 to the respondent.

The proper advice claim

During the hearing of the appeal, Mrs Smith challenged the correctness of many of the factual findings made by the trial judge in [341] which led to the rejection of the proper advice claim. She disputed the trial judge's finding that NAB refused the appellants' request for finance to acquire a heavy duty tractor implicitly on the basis that their development plans were not sufficiently viable to enable the proposed debt to be serviced. It is the case that the material before the respondent was that NAB subsequently agreed to provide the finance after becoming aware of the R & I Bank's position (1980 proof, RAB 1679).
Mrs Smith disputed the trial judge's conclusion that the appellants were aware that the cash flow budget was prepared not for the purpose of providing them with advice as to how they should manage their farm but for the R & I Bank's internal purposes. The contemporaneous objective evidence is inconsistent with a finding that the cash flow budget was for the R & I Bank's internal purposes. The appellants were provided with a copy of the cash flow budget and that was because it provided the broad financial parameters within which the R & I Bank expected the appellants to operate in their management of the farm. Expenditure over or outside that budgeted for was a significant obstacle for the appellants. As Mrs Smith says in her notes dated 14 March 1982:
By the end of May [1977] the overdraft was past the limit allowed, just by paying the outstanding accounts and usual monthly costs and we couldn't buy pig feed or pay for the cartage of pig feed [which was not provided for in the budget] (RAB 1955 ‑ 56).
Mrs Smith also disputed the trial judge's finding that the appellants did not attempt to follow the budget in any way and placed no reliance upon it. The trial judge placed great store on his finding that the appellants did not rely on the cash flow budget: see [250], [256], [262], [342], [353], [459], [460], [463]. What is not expressly addressed in the trial judge's reasons (or the Opinion) is what the 'no reliance' assessment relates to. I infer it is that pleaded in par 8 of the statement of claim in the Bank Action, namely that in reliance on (in effect) the accuracy of the cash flow budget the appellants entered into the contract with the R & I Bank. Based on the material in the Brief, all that can be said with certainty is that the appellants did not rely on it being accurate in all respects. But the real point is that it was intended to be a continuing point of reference for both parties during the budget period.
Mrs Smith also challenges the correctness of the trial judge's conclusion that all the appellants sought from the R & I Bank was an advance for the deposit for the tractor ($7,000) and an overdraft facility of $3,000 [342]. That conclusion is indeed inconsistent with the material before the respondent, in particular, Mrs Smith's proofs of evidence. In the 1980 proof Mrs Smith says that she and her husband explained generally to Mr Danks that they required assistance in their expansion programme, firstly for the tractor and also that what they required was a bank who would finance them generally. She said Mr Danks indicated that his bank would not bounce their cheques and would assist with their general finances as well as the tractor finance. They had explained to him that they did not require simply a static overdraft but were looking to a more flexible overdraft facility to help with the financial arrangements (RAB 1678 ‑ 79). Mr Danks indicated that the R & I Bank would be prepared to extend the overdraft facility and that it would be renewed each year (RAB 1679).
As to the RAA application, Mrs Smith says in her 1980 proof that it was made on the suggestion of Mr Danks and that it was a condition of the RAA that applicants must have first applied to other lenders for finance and been refused, it being a lender of last resort (RAB 1683 ‑ 1684). Mrs Smith's letter accompanying the application to the RAA, which was for longer term finance, had to be seen in that light.
In her notes dated 14 March 1982 Mrs Smith says Mr Danks initiated contact with the CDB in relation to financing the balance of the purchase price of the tractor (RAB 1949). She also identified the information the appellants had supplied to Mr Danks that was incorporated into the cash flow budget, being the pig income (but not it seems the timing of its receipt), wages and pension. As to the balance, Mrs Smith said the appellants did not know the methods of working out budget estimates for, inter alia, crop income, cartage, fertilizer, fuel, fodder and so forth. She said:
We simply didn't know how to draw up such a budget at that time, and the budget given to us was so full of things that were confusing that we didn't even understand how Richard drew it up. He entered the $7000.00 tractor deposit in both the cash flow budget and in reduction amount; the budget didn't show the $4,856.23 due to the CDB in March 78 … showed no outstanding accounts … no provision was made for cartage of pig grain (RAB 1955).
Her observations about the content of the cash flow budget are correct.
The trial judge, who was very critical of the 1986 proof prepared by Mrs Smith ([95], [219], [229], [234], [239], [431]), focussed primarily on the 1980 proof. Although the 1986 proof contains much commentary and argument, particularly in part 2, it was nevertheless material before the respondent which had to be explored before it could be dismissed.
What follows is taken from the 1986 proof, which enlarges upon rather than expressly contradicts the earlier proof. The appellants' dissatisfaction with the NAB went beyond its refusal to assist in financing a heavy duty tractor. At the beginning of 1976 the appellants were unable to agree with NAB 'about how we should farm and about the overdraft limit' (RAB 2559). This statement reflects the close involvement and veto exercised by the NAB Branch Manager over incurring expenses outside their approved cash flow budget.
Mrs Smith said the appellants told Mr Danks at their first meeting that they needed a bank which understood that the farm needed fully developing, that it was not supporting them at that time and that they knew it was no use going in for finance that they could not repay. They mentioned to Mr Danks that a long‑term development loan would be ideal. Mr Danks said 'they were no longer available, but that banks looked after long term development programmes now by other means, but they could still provide suitable finance' (RAB 2561). They also told Mr Danks at the first meeting that they had not done a budget and did not know much about how it would look on paper or what expenses would be paid out of the overdraft.
The appellants also said to Mr Danks that '[W]e don't want to get in over our heads. We've managed OK till now and it would be better not to buy the tractor than to send ourselves broke' (RAB 2575). He said he understood and that the R & I Bank was a reasonable bank, not in the business of sending people broke but rather in the business of helping them to prosper.
They gave Mr Danks rough estimates of their costs, saying they may be wrong, they were guestimates because they had never operated at full production before and did not know how to estimate the amounts properly (RAB 2573). Mrs Smith explained the discussion about pig fodder costs. She said:
[H]e asked us how much fodder would cost for the year. We said, 'Well we haven't sat down and worked it out in detail but $3,000.00 should be enough, but it will depend on how expensive it is.' He said, 'Well yes, but we have to have a figure to work on, what would you say, $3,000.00 then?', and we said, 'Well yes, providing we can come back to you if there are any problems.' and [sic] he said, 'Well that's what I'm here for. The cash flow is a guide, but ring me and discuss any problems you might have.' We said, 'one of the problems we are having with [NAB] is that we can see the most practical way to spend money and we ring and ask the manager and he won't allow us to do it.' He said, 'Well, that's what the R & I is for. It's set up for farmers' needs and it understands their problems' (RAB 2573 ‑ 2574).
At the end of the first meeting, Mr Danks agreed that the R & I Bank would finance the deposit for the purchase of the tractor and provide other finance on condition that the appellants close accounts with all other banks and deal only with the R & I Bank (RAB 2562 ‑ 2563). Mrs Smith continued:
[W]e asked Richard to draw up the budgets for us, and to advise us on the most appropriate kind of finance for us and we supplied him with all the information we had (RAB 2567).

According to Mrs Smith's 1986 proof, as soon as the appellants started operating the overdraft account the appellants ran short of money in which event they rang Mr Danks and explained and he approved further expenditure if he thought it was reasonable. Mrs Smith said '[t]he trouble with that arrangement was that we couldn't plan anything long term. We kept ringing him up and he approved some expenditure and refused others' (RAB 2574).
Late in the 1986 proof, Mrs Smith addresses what would have been the proper banking advice for Mr Danks to have given the appellants. She states that right from the start the R & I Bank was not able to lend the appellants the amount of money they required without going outside their internal guidelines in which event Mr Danks perhaps 'should simply have declined our application on the ground that the amount of money the bank could make available on the security available would not generate sufficient income to repay the loans envisaged' (RAB 2592).
Further, she said that if the R & I Bank had spelt out in detail the amount of borrowing needed to service their repayments and they had been able to see their real position, they 'may have decided not to borrow at all but to continue the development of the farm in the way [they] had been so successful at for years' (RAB 2594). She also said that she did not then know that it was necessary to draw up a proper development and finance programme because Mr Danks had agreed to advise them and their bank manager 'had always drawn up our budget for us, and it was common practice' (RAB 2595).
To summarise the position, the material in the Brief does not support the trial judge's conclusions that the appellants provided all the information in the cash flow budget; or that they understood the full extent or significance of the errors (in estimation or otherwise) in the budget; or that they signed the application for finance form submitted by Mr Danks to head office; or that they did not seek advice as to suitable finance or in relation to the preparation of a proper cash flow budget; or that the appellants eschewed any case based on the proposition that the R & I Bank should have advised them not to borrow in the way they did.
The appellants plead that the R & I Bank was established for the purpose, inter alia, of servicing farming and that it specialised in advising farmers of their financial needs, having both a farm financial planning service and farm management advisors. That is consistent with the material in the Brief. Further, the material in the Brief establishes that a bank manager's role in the life of a rural farmer can be different in character and extent from the conventional banker‑client relationship, particularly where farming operations are debt‑funded on an annual basis.
Mrs Smith's proofs and other instructions in the Brief paint the following picture of the first meeting. The appellants provided to Mr Danks detailed information about their existing and planned future farming operations. The extent of the proposed indebtedness was to the R & I Bank's knowledge, a quantum leap for the appellants. They sought advice as to the appropriate type of finance, asking Mr Danks about the availability of long‑term development finance. Mr Danks advised them of the types of finance available (an overdraft from the R & I Bank for the deposit for the tractor, carry on finance and CDB finance for the balance of the purchase price for the tractor) and that what he proposed was suitable for their purpose. All parties were aware that the primary source of the income required to service the proposed borrowing would be farm‑generated and that the financial management tool (for the borrower and lender) would be a cash flow budget which the R & I Bank was asked to prepare because the appellants did not have the necessary information, experience or expertise to do so. In response to questions from Mr Danks, the appellants provided estimates of some, but not all, of the budget inputs.
It is arguable that having assumed the role of advising the appellants as to what was suitable finance for their proposed farming plans and knowing of their need for assistance in the preparation of a cash flow budget, Mr Danks was under a duty broadly consistent with that formulated in the appellants' proper advice pleading. A proper budget would be one based on a careful assessment of the nature and extent of the farm plan and an informed and considered estimate of the amount and timing of expenses associated with that plan and the amount and timing of income to service the borrowing.
I do not propose to address in any detail the sufficient finance case pleaded in the Bank Action. Based on the material in the proofs, the appellants could reasonably have had a legitimate expectation, induced by Mr Danks, that the R & I Bank was intending to provide continuing financial support for their long‑term development plans. However, the known requirement of an annual review of the proposed overdraft undermines any factual foundation for an unqualified obligation by the R & I Bank to provide sufficient finance to realise their plans. This is recognised in the pleading in the Bank Action of the R & I Bank's obligation to provide funding to expand in an 'economically practical manner'.
It was put on behalf of the respondent that, although he did not expressly address the proper advice claim in his Opinion, it was considered and rejected sub silentio, it being inconsistent with the respondent's distillation of his instructions. Certainly there is nothing in the respondent's summary of his instructions that would enliven a banker's duty to advise (a known expectation of the borrower and assumption of responsibility by the banker). However, the summary is not necessarily inconsistent with the existence of such a duty. Moreover, the respondent's summary of instructions does not address all the relevant material in his Brief.
It can be accepted that the proper advice claim is inconsistent with the sufficient finance claim in the Bank Action, which is based on an assumption that the appellants' development plan was financially viable/feasible from the outset of the borrowing. That was Mrs Smith's firm view. Even so, the proper advice claim identified by the Full Court in the 2005 Appeal was clearly alive in the material before the respondent. It should have been explored, particularly having regard to the highlighted problems with the pleaded claims in the Bank Action.

Causation and the proper advice claim

As previously noted, the trial judge concluded that even if the materials before the respondent raised a proper advice claim, no reasonable barrister could have concluded that there was any prospect of the appellants ever establishing more than nominal damages. This conclusion on causation necessarily depends on the trial judge's identification of the nature of the proper advice claim. He said the advice could only be the provision of the cash flow budget and the agreement to provide finance.
He rejected an arguable claim of reliance on the cash flow budget on the basis that the appellants were aware of the deficiencies in the budget (which I take to mean all material deficiencies) and that the appellants placed no reliance on it. In the absence of material on which to identify the nature and extent of the deficiencies and who provided the particular information, the first conclusion is not open. I have already dealt with the trial judge's finding of no reliance on the budget.
As to the second category of advice, causation was excluded based on the trial judge's finding that all the appellants sought was a deposit of $7,000 for the tractor and a $3,000 overdraft. The material in the Brief does not support that conclusion.
The trial judge's conclusion at [356] that there was no evidence of reliance on anything done or not done by the R & I Bank can only be a reference back to his earlier specific findings to which I have referred. It also depends upon the correctness of the trial judge's conclusion that the appellants eschewed any case based upon the proposition that the R & I Bank should have advised them not to borrow funds and to continue with their current programme without acquiring a new tractor.
As appears from the summary of the 1986 proof, that possibility was expressly left open. Nor is there anything in the Opinion to indicate that Mrs Smith was asked about or gave instructions on the subject. It appears that the trial judge came to his conclusion by relying upon submissions put by Mrs Smith to the court in the 2005 Appeal. The majority position in the 2005 Appeal was that Mrs Smith should not be asked to volunteer what the appellants would or would not have done without first clearly identifying what the substance of the R & I Bank's advice and guidance ought to have been. In any event, it is clear that Mrs Smith's position in her 1986 proof and at trial was that the appellants' proper advice case contemplated deferral of the bulk of the borrowing, including finance to purchase the tractor. The sufficient finance claim in the Respondent Action is directed towards this outcome and in that form is not inconsistent with the proper advice case, both of which contemplate that the R & I Bank would continue to fund the appellants in the transition to full development with a CDB long‑term development loan.
The only other conclusion of the trial judge on causation which would result in the failure of the proper advice claim is that the appellants were committed to the pursuit of their farming venture no matter what they were told by financial advisors.
The appellants' pleaded case was twofold. First, that Mr Danks should have advised them, in effect, to obtain (by themselves or their agents) all relevant information required in order to prepare a 'proper' cash flow budget which would have disclosed that the appellants' ability to repay the proposed debt was not good and that it may be better to restrict borrowing to the overdraft and some stock firm finance which together with off farm income, may put the appellants in a better cash flow position before borrowing larger amounts. Secondly, Mr Danks should have advised the appellants, on the basis of the cash flow budget actually drawn up, to reappraise the intended borrowings and give consideration to confining the borrowing to the overdraft and stock firm finance to enable the preparation of a long‑term plan with a view to applying to the CDB for a long‑term development loan.
Insofar as the appellants' pleading of its case against the R & I Bank in the Respondent Action focuses on the loss of a chance or opportunity to obtain the benefit of proper advice at a time when they would realistically have been able to expand their farming operations and remain viable (par 23.5, 32, 35), it is misconceived. In the Bank Action, the appellants had to prove on the balance of probabilities that the breaches of duty by the R & I Bank caused the claimed loss and damage. The respondent was required to advise on the merits of that claim. The loss of opportunity claim only arises in the valuation of the loss once a relevant breach of duty by the respondent is proven.
There was much material in the Brief to compel a conclusion that, in connection with the financial aspects of the appellants' farming operation, Mrs Smith was the decision‑maker and that she was self‑confident, with very strong opinions. She was not persuaded to question their decision to develop the farm on a full‑time basis by NAB's refusal to increase the appellants' overdraft to $3,000 and to fund the purchase of a heavy duty tractor. Her response to exceeding their overdraft limit by almost a factor of three by the end of the first year was to apply for a very significant increase in the overdraft limit. Mrs Smith did a cash flow budget for that application which showed an operating profit. When that application was refused, she sought even greater carry on finance from RAA. In rejecting the application, the RAA said that they did not consider the appellants' farm development proposal to be viable and that they should consider leaving the farming industry. The appellants did not act on that advice. The appellants persisted in their pursuit of ever increasing amounts of debt to fund the development of their farm. Moreover, it is significant that for many years, and even after the farm had been sold by the mortgagee, Mrs Smith strongly embraced and pressed for the original sufficient finance plea which was predicated on the basis that the cause of the appellants' financial problems was not the initial borrowing but the failure of the R & I Bank to provide them with even greater funding.
Against that factual background it was highly unlikely that a court would conclude that Mrs Smith would be persuaded of the need for further investigations and expert advice as to the inputs into the cash flow budget or even that she would act in accordance with expert advice that contradicted her considered position. Thus even if the respondent had considered the proper advice claim, I am not persuaded that the respondent's Opinion would or should have been materially more positive as to the prospects of a successful claim against the R & I Bank.
It follows that the delays and costs to Legal Aid occasioned by the appellants obtaining further legal advice would not have been averted. Thus the failure to consider the proper advice claim would not have caused or materially contributed to the claimed loss.
I agree with the trial judge for the reasons he gives that the respondent's breach of his duty to act in a timely fashion did not cause loss of any significant value. This is sufficient to dispose of the appeal. However, I propose to consider the alternative grounds on which the trial judge dismissed the appellants' claims against the respondent.

Quantum of loss

The trial judge also considered the position on the assumption that, contrary to his view, the respondent breached his duty to the appellants and the breach caused or materially contributed to the loss of an opportunity to pursue their claim against the R & I Bank. Attention then turns to valuing the loss of that opportunity. The appellants are not required to prove those damages on the balance of probabilities; they only need to establish that the claim against the R & I Bank had some value that was more than mere nuisance value. Damages will be awarded even if the prospects of success are less than 50%. In making the assessment of value, the court is required to take a broad brush approach, not to conduct a trial within a trial: Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 404; Hammond Worthington v Da Silva [2006] WASCA 180 [116].
The trial judge concluded that the evidence at trial did not provide a plausible basis for the imposition of a duty to advise. The trial judge had regard to Mrs Smith's proofs of evidence in the Brief as well as Mrs Smith's evidence at trial. Not all relevant parts of the 1986 proof were referred to. Further, not all relevant parts of Mrs Smith's evidence‑in‑chief (in the form of a written statement) were referred to. She states:
In about March 1977 Jim and I went to see Richard Danks, the manager of the R & I at Ongerup, for advice about getting a development loan to buy a better tractor and to undertake further development on the farm. He made us welcome and agreed to advise us about the types of loans we would need, how to apply for them and to do the necessary paperwork, including a cash flow budget to show income and expenditure.
We told him about the stage of development the farm had reached and that we didn't want to go into debt we couldn't repay. Jim answered all his questions about the farming side of our enterprise and I told him in general terms about our financial history and our financial state at that time. I answered all the questions he asked me. I could not give him exact details, either historical or current, and he did not ask for them, but said to me that the figures in general terms would be sufficient. Jim gave him general estimates of what he thought good pigs might bring at market and an estimate of the number of pigs on hand [13] ‑ [14].
Mrs Smith goes on to say in [14]:
We made it very clear that we were seeking finance [to fully develop the farm] and that we were willing to change banks if we could be sure the R & I understood our plans and financial needs and was prepared to work with us and advise us financially to achieve our plans, and to lend us money to achieve our plans.
Mrs Smith continued:
We agreed to let [Danks] draw up the budget and advise us on the types of loans best suited to our needs and who to apply to for finance. He seemed to know what we needed and Jim and I trusted him to do a professional job and to advise us correctly. We said we needed a long term development loan to give us time to get the farm producing enough money to service the proposed debt and to live on. He said he understood that. We asked about the Commonwealth Development Bank or whether there was any other development finance like the soldier settlers got and Danks told me that you couldn't get that sort of loan anymore but the bank achieved the same purpose with overdrafts … He recommended using a loan from the R & I for the tractor deposit, an overdraft for the long term development and farming finance … and a loan from the Commonwealth Development Bank for the balance of the tractor purchase. Based on that we agreed to an overdraft. He did not tell us it was for one year only. He did not tell us that we could have applied for a CDB loan with an interest‑only period at the start for the development loan [18].
Thereafter, Mrs Smith states:
If I had even suspected that he was setting us up for a one year overdraft at $3,000.00 and that was all he ever intended it to be, to do the farm development and earn the income to repay the other loans I would not have agreed. I always expected, as a result of our discussions with him, and his expressed understanding of our needs, and from his agreement with our plans, and from the absence of any objections or cautions from him, that he would advise us as to the best financial options for us to achieve the development required and repay the borrowings, whether from the R & I or from another source [21].
Mrs Smith also gave evidence‑in‑chief that she had no experience with development budgets and when Mr Danks began meeting cheques beyond the overdraft limit, she thought that was how the Bank did long term finance for development ([26]). She continued:
We were not given an opportunity to understand and take part in the planning and if we had, unless better finance of a longer term was offered we would not have entered into the arrangement … If I had known what we were getting into I would have declined the offer and pulled out, and gone on the way we were and applied for some stock firm finance to get a cash flow going [27].
Mrs Smith's evidence‑in‑chief is broadly consistent with her 1986 proof and did provide a plausible basis for the imposition of a duty to advise. However, Mrs Smith's evidence in cross‑examination as to the 'guidance' the appellants sought from Mr Danks was significantly narrower than in her proofs. In essence it was to supply some of the information required for the cash flow budget (future prices for grain, costs of super, projected costs for fuel) and how to properly finance their development plan (ts 572 ‑ 578).
Moreover, Mr Danks' evidence (accepted by the trial judge) of what occurred in his dealings with the appellants in March/April 1977 is inconsistent with the existence of any duty to advise. He said the appellants did not ask for advice but rather told him what they wanted by way of finance (a $7,000 deposit for the tractor and a $3,000 overdraft) and Mrs Smith so impressed him with her knowledge, experience and preparation for the meeting (Mrs Smith had come to the meeting with the necessary cash flow information) that he orally approved the finance at their first meeting. Mr Danks' evidence is consistent with the objective background material and undermines the proper budget claim, the sufficient finance claim and the proper advice claim.

Further, Mrs Smith's evidence in cross‑examination reinforces the conclusion that the proper advice claim would fail on causation. Expert reports of an agricultural advisor, Dr Peter McKenzie, were obtained for the appellants in December 1991, January 1992 and July 1992. Dr McKenzie advised that the lending in 1977 was bound to fail because, no matter how well the appellants farmed, they were incapable of servicing any additional debt. Mrs Smith was vehement in her rejection of Dr McKenzie's opinion, persisting with her unshaken belief that the cause of the appellants' loss was the R & I Bank's failure to provide adequate financial backing to develop the farm (ts 706 ‑ 727).
In summary, although I am of the opinion that the trial judge made a number of errors in his analysis of the material, I am not persuaded that any of the errors altered the outcome.

Other matters

The appellants have failed to establish that the trial judge erred in matters relating to his conduct of the proceedings, including matters involving witness statements, prejudgment, evidence, documents and case management generally. The appellants' application dated 28 November 2011 for leave to adduce additional documentary evidence should be dismissed. A claim that the trial judge went to sleep while

Mrs Smith was giving evidence is a general and unsubstantiated assertion. Even if correct, there is a strong objective underpinning for the trial judge's credibility assessment (at [472]). Finally, there is no merit in the claim that the respondent did not give sworn evidence.

PULLIN JA: The appellants appeal against a judgment dismissing their claim against the respondent.

Summary

The appellants applied for, and were granted, loan facilities by the Rural and Industries Bank of Western Australia (the bank) in 1977. They spent the money they drew down on the facilities on an unsuccessful farming venture and on personal living expenses. They then decided to sue the bank, claiming they received wrong advice from the bank which induced them to borrow and then spend the money. The respondent was retained to give advice about the prospects of success against the bank. The respondent advised that they would not succeed. The appellants then sued the respondent claiming his advice was wrong and negligently given. The trial judge found that the advice the respondent gave to the appellants was correct advice and not negligently given and entered judgment dismissing the appellants' action. The appellants' appeal should be dismissed for the following reasons.

Chronology of events

In 1977 the appellants were farming on a partly cleared property at Borden. They owned a tractor but they decided they wanted a larger tractor to expand the farming operations. They identified the tractor they wanted. It was a Massey Ferguson which would cost them $17,500 to purchase. The machinery dealer required a $7,000 deposit. They then went to the National Bank which then acted as their banker, with details of their plan to expand their farming operations and applied for finance to assist in the purchase of the tractor. The National Bank declined the application.
As a result, in early March 1977, the appellants went to see Mr Danks who was the manager of the bank at Ongerup. They applied to him for finance to cover the deposit on the purchase the tractor and for an overdraft to provide working capital and to pay out the debt to the National Bank. To support the application for approval, Mr Danks obtained information from the appellants about anticipated revenue and expenses. He used this to later prepare a cash flow budget to submit to his superiors to support his request for formal approval. The appellants were

given sufficient general assurance at their first meeting with Mr Danks in March 1977 that the bank would grant their request for finance to cover the deposit on the tractor and for an overdraft facility that they went off and purchased the new tractor on 1 April 1977 (SGAB 1; appeal ts 119).

The appellants returned to see Mr Danks at the bank on 5 April 1977. Mr Danks showed the cash flow budget he had prepared to the appellants. It was immediately obvious to the appellants that the cash flow budget could not be adhered to (RAB 2600) but they still wanted the bank finance.
The bank approved the appellants' application for finance. The appellants had wanted more but the bank only provided a term loan of $7,000 and an overdraft facility with a limit of $3,000. The appellants drew the $7,000 and paid the deposit on the tractor. They entered into a hire purchase agreement with the Commonwealth Development Bank to finance the balance due on the tractor which was delivered in May 1977.
The appellants were unsuccessful farmers and they were unable to generate sufficient income to match expenses which were paid for by drawing on the overdraft facility. The appellants' drawings exceeded the limit on the overdraft facility. They sought and for a time were granted an increase in the overdraft limit by the bank.
In 1978, the appellants applied to Western Livestock for financial support. It proposed an arrangement with the appellants, which the appellants regarded as the provision of financial assistance. However, it was clear that Western Livestock was not proposing to provide any significant monetary assistance and would require all proceeds from the sale of pigs the appellants were producing to be paid direct to it Smith v McCusker QC [No 7] [2011] WASC 88 [155]. Mr Danks discouraged the appellants from entering into that arrangement and advised that the bank would give further consideration to providing financial assistance.
Subsequently, two farm advisers employed by the bank attended at the appellants' property and carried out an inspection. The result was that the bank approved an increase in the overdraft facility to an amount of $7,000 [156] ‑ [157]. One of the farm advisers commented that the appellants' piggery operation was a 'very ad hoc affair ... the handling facilities are poor and will not allow good management practices to be carried out ... [and that] this account has a high risk factor and will have to be watched very closely' [156].
Subsequently, in January 1979 when Mr Danks left the bank, the new manager increased the limit on the overdraft facility to an amount of $10,000 [161]. About this time the appellants applied to the Rural Adjustment Authority for finance and that application was refused [162]. According to Mrs Smith's 1980 proof, the appellants made various applications to various financial institutions for provision of finance, all of which were refused [162].
Going ahead a little in the chronology, it is appropriate to record that the bank eventually declined to provide further financial accommodation. On 22 December 1981, the bank foreshadowed issuing a demand against the appellants for repayment of their then debt to the bank (WAB 177). In 1982 the appellants applied to the Town and Country Permanent Building Society for finance. That building society approved a request for finance in the sum of just under $135,000 which allowed the appellants to pay out creditors including the bank.

The appellants seek advice about suing the R & I Bank

In 1979 the appellants decided that they wanted to sue the bank for damages. On 1 November 1979, Mrs Smith wrote to the Chairman of Commissioners of the bank foreshadowing what the claim would be. It referred to the fact that Mr Danks had drawn up a cash flow budget and asserted that the budget 'proved faulty' and that 'as a result of following his advice we have lost a great deal of money and are continuing to do so'. The letter said that in two years they had gone from a debt‑free farm to $30,000 in debt and that they had sought an opinion and had been advised that the bank could be held liable for breach of contract and negligence. This assertion that the bank's negligence lay in the preparation of the cash flow budget was to be the basis of the appellants' claim against the bank for the next 20 years.
On 21 November 1979 the appellants were granted legal aid to allow them to investigate a possible claim against the bank. Rowland QC was retained to give an opinion. After preliminary advice, he provided an opinion on 20 May 1981 along with a draft statement of claim. The opinion stated that the 'matter is not easy' (GAB 1095) but that if the 'overall evidence of Mr and Mrs Smith is accepted' then he believed that they could establish both a breach of promissory conditions and also negligence against the bank's officers. However, he concluded that while the appellants had a reasonable prospect of succeeding on the question of liability, he had doubts as to their ability to prove a general loss arising from the breaches and negligent advice. In Rowland QC's view, the appellants would not be able to show a causal connection between the bank's breaches and any particular items of damage that might otherwise have been available to them.
The draft statement of claim prepared by Rowland QC (RAB 1837) pleaded that:
(a)the bank had 'prepared and handed to the [appellants] a cash flow budget' which advised them of the income they could expect for the ensuing 12 month period and the outlays and time of outlay of moneys required to produce such income;
(b)the budget represented that by expending money at the rate and time set out in the budget, the appellants would earn the income and be able to carry on the farming operations within the 'financial restraints set out in such budget';
(c)the bank further represented that the bank would advance money to the appellants to enable them to pay a deposit on the acquisition of a tractor and to enable them to carry on farming operations for the 'ensuing year' and that such financial facilities would be revised and renewed each year to enable the appellants to continue their expanded farming operations;
(d)the representations 'were promissory in nature' and that it was 'agreed between [the appellants] and the [bank] that in consideration of the [bank] lending money to the appellants to enable them to acquire a tractor and to carry on expanded farming operations', the appellants would acquire the tractor on hire purchase terms, would farm in conformity with the budget, would execute a mortgage and would transfer all other bank accounts held by them to the bank;
(e)there was a collateral warranty that the budget was a proper budget, that the bank would advance $7,000 as the deposit on the tractor, and that in accordance with the budget, the bank would advance to the appellants from time to time moneys to enable proper farming operations to be carried on;
(f)in reliance on the representations and warranties and in reliance on the advice of the [bank] contained 'in such budget' the appellants entered into the contract;
(g)the farming operations were commenced 'in accordance with the terms envisaged in the budget'.
As mentioned above, on 22 December 1981 the bank foreshadowed issuing a demand for repayment of the appellants' debt. Early in 1982 the Legal Aid Commission extended legal aid to initiate and conduct proceedings against the bank up to, but not including, listing the matter for trial (WAB 177).

The appellants issue a writ against the bank

On 4 August 1982, the appellants issued a writ against the bank claiming breach of contract and negligence. The statement of claim followed the draft statement of claim prepared by Rowland QC. Rowland QC later ceased his involvement because he was appointed as a judge of the Supreme Court.

New solicitors instructed

In 1985, the appellants instructed new solicitors to represent them in their proceedings against the bank. In May 1985, the Town and Country Building Society issued a notice of demand requiring repayment of the loan which they had made to the appellants because of defaults by the appellant (WAB 179).

The respondent is retained to give advice

In August 1986 the new solicitors retained the respondent to provide an opinion about the prospects of success of the action against the bank. Legal aid was granted to cover this opinion. Material constituting the brief was delivered to the respondent. The brief to counsel consisted of nine lever arch files containing various papers including the advice given by Rowland QC, the statement of claim he had settled, a 1980 proof of evidence of Mrs Smith and a 1986 proof of evidence of Mrs Smith (prepared by Mrs Smith). In March 1989, the respondent provided a written opinion which was sent by the appellants' solicitors to the Legal Aid Commission on 29 March 1989.

The respondent's opinion

In the opinion, the respondent referred to the fact that he had conferences with the appellants and his instructing solicitors for the purpose of obtaining a fuller understanding of the basis of the appellants' claim. The opinion sets out the genesis of the dispute and sets out the respondent's instructions based on not only the appellants' statements of evidence, but also on what the appellants had said to the respondent in conference. The combined effect of those instructions was that the appellants spoke to Mr Danks saying they wanted an overdraft facility of about $30,000 over a period of several years but that, as a result of their meeting with Mr Danks, he undertook:
(a)to provide them with a loan facility of $7,000 to enable them to pay that amount as a deposit on the purchase of a heavy duty tractor, that loan to be repayable over three years;
(b)to produce for them a cash flow budget; and
(c)to provide an overdraft facility to enable them to embark upon and complete their proposed expansion and development programme (GAB 1707).
The respondent's opinion stated that in April 1977 the appellants were provided with a cash flow budget. The opinion also noted that the cash flow budget itself made no provision for finance being extended by the bank beyond 12 months covered by the budget, which the respondent stated in his opinion a court may consider surprising in light of the appellants' claim that they required an overdraft facility likely to peak at about $30,000 over a period of three to five years. The opinion then contained a number of conclusions, being:
(a)a judge was likely to decide that he was not satisfied on the balance of probabilities that the bank did other than agree to provide a total loan facility of $10,000 being $7,000 for the tractor deposit and $3,000 for the working account;
(b)the April 1977 cash flow budget prepared by the bank was central to the appellants' case against the bank. The respondent recorded the fact that he had been told it had been critically examined by several experts and that errors in the budget were patent and obvious;
(c)a court was likely to find that the information contained in the 1977 cash flow budget was largely provided by the appellants;
(d)the court was unlikely to accept that the appellants had relied upon the cash flow budget prepared by the bank. The opinion stated that the respondent had asked the appellants whether they agreed with the proposition that the errors in the cash flow budget were patent and obvious and that Mr Smith had said in conference that he appreciated the budget was inaccurate. The opinion stated that the respondent asked the appellants to explain how it could be said that the appellants relied upon the cash flow budget if they were aware of its inadequacies, and that this was answered by Mrs Smith saying said that she had 'no understanding of cash flow budgets'. The respondent said in his opinion that 'I must say that I have been unable, despite several discussions with Mrs Smith, to comprehend how it can be said that reliance was in fact placed on this budget, as pleaded';
(e)it was unlikely that a court would accept that the bank gave an undertaking to provide whatever finance was necessary in order to assist the appellants in their proposed development programme for the farm;
(f)it was made abundantly clear at the end of 1977 that the bank would not make any additional advance and that a letter of 29 March 1978 prepared by Mrs Smith did not suggest that the bank was in breach of any undertaking to provide additional finance;
(g)the apparent lack of success of the farming operations conducted by the appellants over more than a decade despite the increase in financial accommodation would be relied upon as evidence that the appellants were unlikely to have succeeded in their farming programme even if the bank had provided additional finance; and
(h)consequently, any damages awarded to the appellants if they were able to establish liability would be comparatively nominal and nowhere near the amount of $1.5 million then proposed by the appellants.
In the course of his opinion the respondent related his instructions that in 1978 the appellants had approached Western Livestock for finance, but that it did not proceed because the proposal was discussed with Mr Danks and he suggested they should wait until the assessment had been carried out by the farm advisers. Reference is made to this part of the opinion only because the appellants alleged that loss flowing from the bank's alleged negligence was the 'lost opportunity to take advantage of Western Livestock's offer' (BAB 155). The consideration of the Western Livestock transaction was only necessary if it could be proved that the bank was negligent. The amount of finance offered by Western Livestock was for a small amount, and in any event the bank provided additional finance after the Western Livestock transaction had not gone ahead.

The farm is sold by Town and Country

In May 1989 the Town and Country Building Society advised that the property had been sold by private treaty (WAB 182). The proceeds of the sale of $185,000 (GAB 1905) were insufficient to satisfy the entire debt of about $400,000 due to the building society. The building society wrote off the balance due as a bad debt and the appellants were not required to make up the shortfall.

A third set of solicitors retained by the appellants

In June 1989 the appellants retained a third set of solicitors to act for them in the claim against the bank. Legal Aid approved the transfer and approved aid for a second opinion from another senior counsel. Williams QC and Mr Van Zalm, a junior counsel, were retained to provide advice which they provided. Legal aid was extended in August 1991 for representation up to and including trial. In 1993, Nisbet QC was asked to provide an opinion on quantum which he gave and in which he expressed pessimistic views about the appellants' prospects of success.

The grant of legal aid is terminated

In August 1994, the Legal Aid Commission terminated the grant of aid because it was 'no longer in a position to fund a trial of this nature and magnitude' [396]. The appellants asked for a reconsideration. On 13 August 1996 the Legal Aid Commission confirmed the decision to terminate the grant of aid (WAB 184). The uncontradicted evidence of the decision makers within the Commission who decided to decline the grant of aid was that the decision was not based in any respect upon the opinion which had been given by the respondent many years before.

The appellants now acting in person commence proceedings against the respondent

On 13 March 1995, the appellants issued a writ against the respondent and the solicitor who had briefed the respondent. The claim against the solicitor was later struck out.

Master Sanderson strikes out the statement of claim and the claim against the respondent

The respondent applied to strike out the statement of claim which had been prepared by Mrs Smith in 1997. The application was heard by Master Sanderson. The statement of claim included a plea that 'the agreement was that the bank would provide the [appellants] with a suitable cash flow budget, which is evidenced by the production of the budget. The fact that it was not suitable is the crux of the matter.' (par 9.3.15.2).

The trial judge's reasons - did delay in supplying the opinion cause any loss?

The trial judge considered the appellants' claim that the delay of 15 months in providing the opinion caused the appellants to suffer loss. The trial judge found that no loss had been suffered. The trial judge identified the 'potential' loss as being:
(a)in respect of interest paid to the Town and Country Building Society;
(b)in respect of their prospects of averting a sale by that building society; and
(c)in respect of their prospects of going to trial prior to the termination of legal aid.
As to the first potential area of loss, the trial judge found that no loss was suffered because the total debt owed by the appellants to the Town and Country Building Society was about $400,000 [375], the building society received only $185,000 after the sale of the property and the waiver by the building society of the balance of the amount due substantially exceeded the interest that could have been saved if the building society had proceeded to exercise its power of sale 15 months earlier [375].
As to the contention that timely advice might have allowed the appellants to persuade the Town and Country Building Society not to sell the farm, the trial judge said that this could only be so if the appellants had established that a barrister in receipt of the material and instructions provided to the respondent, and properly discharging his duties, would have advised that the claim against the bank had some prospect of success. The trial judge found that this could not be established and thus the delay in the provision of advice could not have 'reduced the prospect of averting a sale by the mortgagee' [376].
As to the third area of potential loss caused by delay, the trial judge found that the delay in the provision of advice had no material impact upon the prospects of the appellants bringing their case to trial prior to termination of legal aid or sufficiently close to trial to avert the termination of legal aid [416]. The trial judge found that the advice given by the respondent had no bearing whatever upon the decision to terminate legal aid granted to the appellants which occurred five and a half years after the respondent gave his advice [414].

The trial judge's reasons - the conclusions sufficient to dispose of the appeal

The trial judge found one breach of duty, namely the failure to deliver a timely opinion, but found that this caused no loss. Otherwise, he found no breach of duty. Those conclusions were sufficient to support an order dismissing the appellants' action. However, the trial judge went on to make provisional findings on causation and damages.

The trial judge's reasons - provisional findings on causation

Against the contingency that a different view of the respondent's liability were taken on appeal, the trial judge turned to consider whether any breach of duty (other than delay) caused any loss.
The trial judge said that even if the respondent had been in breach of duty by failing to consider and advise on the proper advice case against the bank, that 'any barrister given the materials and instructions provided to [the respondent] could only reasonably have concluded, and advised, that the claim against the bank was hopeless, and that there was no realistic prospect of recovering any significant damages' [352].
Referring to the claim based on the cash flow budget, the trial judge found that the information contained in the cash flow budget was provided almost entirely by the appellants and not Mr Danks and that the appellants placed no reliance on the cash flow budget [353].
The trial judge also found that it was not appropriate or necessary for any barrister provided with instructions given to the respondent to provide advice on the 'proper advice' claim. The trial judge observed that the first time that claim was enunciated was in the Full Court proceedings in 1999/2000 [355]. The trial judge also found that even if consideration had been given to such a claim, it had no prospect of success for the reasons he had given earlier.
The trial judge then turned to consider the appellants' claim (assuming there had been a breach of duty by respondent) that the negligent opinion led to the appellants losing the benefit of legal aid. The trial judge found that the evidence did not support such a conclusion. However, the trial judge also looked at the case by considering whether it was true as the appellants alleged that the loss of legal aid caused the appellants to lose the opportunity to pursue their claim against the bank [418].
The trial judge found that the termination of aid did not cause the appellants to lose their opportunity to pursue their claim against the bank. He found that the loss of opportunity to pursue the claim against the bank was a consequence of their decision to inject all their energies and endeavours into the claim against their legal advisers [419].
It needs to be added that the claim against the bank was dismissed because of unconscionable delay on the part of the appellants in pursuing that action.

Provisional findings on quantum

Against the contingency that a different view of the respondent's liability were taken on appeal, the trial judge then considered the question of quantum on the assumption that the respondent breached his duty (other than due to delay) with the consequence that the appellants lost the opportunity to pursue their claim against the bank [421] ‑ [422]. In this respect, the trial judge said that he attempted to discourage the parties from conducting a trial within a trial, that is, of using the proceedings against the respondent as a surrogate for the trial of the claim against the bank [427]. The trial judge said that those attempts failed and a significant body of evidence was led which went only to the merits of the appellants' claim against the bank. In view of the position adopted by the parties, the trial judge dealt with the evidence and considered the evidence which was led about the claim against the bank between [428] ‑ [486].
In the course of his reasons, the trial judge concluded that he would not accept Mrs Smith's evidence on any contentious issue of fact unless it was corroborated by other contemporaneous evidence [472]. As a result of considering that evidence, the trial judge then found that the appellants failed to establish that had they pursued the claim against the bank, they would have had any prospect of success [487]. The reasons for this conclusion were summarised in [487] as follows:
(a)there is no evidence of any communications between Mr and Mrs Smith and the bank capable of supporting an argument to the effect that the bank had a duty to advise;
(b)the evidence establishes that Mr and Mrs Smith went to the bank for finance, not advice;
(c)Mr and Mrs Smith were at all times aware that they had not been given any advice by the bank;
(d)the bulk of the information set out in the 1977 cash flow budget was provided by Mr and Mrs Smith;
(e)Mr and Mrs Smith were aware that the cash flow budget was prepared essentially for the bank's purposes, not as a means of providing them with farming advice;
(f)Mr and Mrs Smith never relied upon the budget as the source of advice as to the management or development of their farm;
(g)there is no evidence capable of supporting an argument to the effect that the bank committed to the provision of ongoing finance over and above the approval that was given in April/May 1977;
(h)all the contemporaneous evidence is overwhelmingly against any version of the events which would sustain a claim by Mr and Mrs Smith against the bank;
(i)the complaint initiated and maintained by Mr and Mrs Smith and the bank over many years was a complaint based upon reliance on the budget - a claim which has now been eschewed;
(j)there is no evidence or instructions capable of sustaining a claim against the bank for failure to give 'proper advice' which predates the ruling of the Full Court in 2000;
(k)the evidence establishes overwhelmingly that Mr and Mrs Smith were resolutely intent upon implementation of their plans for the development of the farm, irrespective of the views expressed by any financier, including the bank;
(l)there is no evidence that anything arising from the dealings between Mr and Mrs Smith and the bank caused the ultimate failure of the farming venture;
(m)the evidence strongly supports the conclusion that the failure of Mr and Mrs Smith's farming venture was due to matters unrelated to any advice they did or did not receive, or any finance they did or did not receive; and
(n)there is no evidence to support the conclusion that even if a claim had been successfully prosecuted against the bank, any significant damages would have been recovered.
For those reasons, the trial judge concluded that the appellants' claim against the bank was always hopeless and doomed to fail, that it had no prospect of success and no value, so that even if the appellants had made good their claim against the respondent, and even if they had shown that breaches of duty caused them to lose the opportunity of pursuing their claim against the bank, the appellants had not lost anything of value [488].
Finally, the trial judge found that the losses incurred by the appellants in the conduct of their farming operations were inherent in those operations and attributable either to poor seasonal conditions or poor farm management or both.

The appellants' grounds of appeal, written submissions and oral submissions

There are 74 grounds of appeal. None of the grounds of appeal comply with the Supreme Court (Court of Appeal) Rules 2005. They do not allege an error of law or of fact. The great majority make complaint about the trial judge's reasons or about the conduct of the trial at such a level of generality as to be meaningless. For example, ground 2 reads 'the preparation of the evidence before the court affected the decision'; ground 6 reads '[e]rrors in the judgment are compounded by mixed errors of fact, law and other categories of error'; ground 38 reads 'forensic strategies adopted by the respondent have resulted in injustice' and ground 48 reads '[t]here were a number of incidents of biased treatment of the parties'.
The written submissions filed in support of the grounds are unfocused. They do not refer to the grounds of appeal. They contain long lists of documents without explaining the relevance of the documents. They express disagreement with some paragraphs of the trial judge's reasons, but do not reveal any error of fact or law by the trial judge.
The written submissions reveal that the appellants, 17 years after issuing the writ against the respondent, are still struggling to articulate the basis of the claim against the bank which they allege the respondent should have detected. For example at par 12 of the written submissions, the appellants state that Mrs Smith's 1986 witness proof 'draws the reader's attention to the lack of care by Danks in preparing the [cash flow] budget' (WAB 41). However at par 83 of the written submissions, the complaint is not that the bank was negligent in preparation of the cash flow budget, but that 'the correct advice [from the bank] would have been to abandon the [cash flow] budget, get stock firm finance for a couple of years, build up the cash flow, as the Smiths were in a unique position to do, then apply for Commonwealth Development Bank finance' (WAB 56). This is the 'no borrowing case' eschewed before the Court of Appeal and yet included in the pleaded case which went to trial.
It may be observed that the appellants' references to the alleged negligence of the bank in preparing the cash flow are pointless and a waste of time. The respondent addressed that allegation in his opinion. His opinion was that it would fail. Based on the appellants' own evidence and their statement of claim (par 55.1, BAB 159), that case would fail because they did not rely on the cash flow budget which they knew 'immediately' 'could not be adhered to' (RAB 2600).
Oral submissions were made by Mrs Smith on behalf of the appellants at the hearing of this appeal. Like the written submissions, the oral submissions were also unfocused but perhaps more so. For much of the time Mrs Smith addressed the court ignoring the fact that there had been a trial and findings of fact made against the appellants, this despite the court repeatedly asking Mrs Smith to identify what error the trial judge made. No error was revealed in the grounds of appeal, in the written submissions or the oral submissions.

The respondent's written submissions

The respondent's written submissions correctly observe that the grounds of appeal are seriously deficient. They correctly submit that the grounds do not identify arguable errors of fact or law or the evidence required to enable consideration of such matters. However, those settling the written submissions did their best to glean from the appellants' grounds of appeal and written submissions what errors the appellants might be asserting.
The respondent submits that the appellants' main contention appears to be that the trial judge erred in failing to find that the respondent was negligent in not addressing the 'proper advice' claim. The respondent correctly submits that there is nothing in the appellants' grounds or submissions which is capable of establishing error on the part of the trial judge. The trial judge found that the respondent was not negligent in not addressing the proper advice claim.
The respondent's written submissions also detect that the appellants make a number of complaints about the conduct of the proceedings. Some of the appellants' submissions or grounds are directed in a broad and vague manner to assertions of general unfairness and a denial of natural justice. None of the appellants' grounds or submissions demonstrate any appellable error based on denial of natural justice or identify how the outcome would have been any different if there had not been the alleged denial of natural justice.
The respondent observes that the appellants assert in some of their submissions that there had been unfairness or insufficient directions in relation to the management of documents and the trial bundle. The respondent points out by reference to the transcript that every fairness was afforded the appellants in relation to the preparation of witness statements. The guidance or assistance which a trial judge should give to a self‑represented litigant was given by the trial judge. However, it is clear that Mrs Smith is a person inclined not to accept assistance or guidance. This was on display during the appeal when she was repeatedly advised to identify findings of fact made by the trial judge and then to make submissions about why there was said to be an error. She failed to take that advice.
The respondent also detects that the appellants are contending there was a failure on the part of the trial judge to take into account the respondent's admission in its defence that the appellants had sought a 'development loan' from the bank (defence par 2(b), BAB 165). Mrs Smith also made that submission orally at the hearing. Mrs Smith appears to place great store on this admission, but the significance of it is impossible to detect. There is no dispute that the appellants did apply for finance to develop the farm. They wanted a greater facility than the bank was prepared to offer. That might be described as an application for a 'development loan'. However, it matters not what description it was given, because the appellants well understood that they were offered and accepted a term loan facility of $7,000 and overdraft facility of $3,000. This was confirmed in writing by the bank on 10 May 1977 (GAB 641).
The respondent also detects that the appellants assert bias on the part of the trial judge. The respondent correctly points out that there is no evidentiary foundation whatsoever for such assertion. The respondent detects that some of the grounds appear to allege bias on the part of the trial judge because of some alleged relationship between the trial judge and the respondent. There is no evidentiary foundation for the assertion. The respondent was a senior counsel who practised for many years and he appeared frequently in this court and in other courts within Western Australia. The mere fact that there exists a professional acquaintance between a litigant and a judge is no basis for contending bias on the part of the judge. The administration of justice is a practical business which relies on judges putting aside whatever professional associations they may have, or had, in doing justice as they are sworn to do: Western Australia v Watson [1990] WAR 248, 264; Vella v Bowden [2011] WASCA 158 [8].
A number of the appellants' contentions appear to complain that the respondent was in a position of conflict in respect of his duties to the appellants and the bank. See for example ground 29 and submissions par 89. This matter was dealt with by the Court of Appeal in Smith v McCusker QC [2010] WASCA 55 and it is not open to the appellants to attempt to re‑air these contentions.
Some grounds make allegations about the trial judge which would require evidence to support them. See for example ground 55. Another ground (ground 13) is that the respondent's evidence was 'unsworn'. There is no evidence to support this. It appears to be a submission based on the fact that the transcript does not have the word 'sworn' against the respondent's name when he was called to give evidence. Nothing turns on this. The appellants' case failed because of their own evidence, not because of evidence led by the respondent. In fact in dismissing the appellants' negligence claim, the trial judge did not refer to any evidence given by the respondent. After dictating the foregoing, Mrs Smith requested a copy of the audiotape of the trial at the point where the respondent was called into the witness box. The audiotape revealed that the respondent was sworn in as a witness in the usual way.
The respondent also detects grounds alleging wrong conclusions in relation to what was called the 'Western Livestock issue'. The trial judge dealt with the Western Livestock issue at [155], [231] and [232]. The trial judge adequately explained the basis for his conclusions and no contention is advanced as to why the reasoning was deficient. All Mrs Smith does in her written submissions is refer to some evidence given about the Western Livestock issue. The respondent also detects that the appellants in par 38 of their written submissions, might be taken as appealing against a decision made by the trial judge during the trial disallowing an amendment of their claim to include an allegation of negligence on the part of the respondent for his failure to take into account the issues relating to Western Livestock. The trial judge refused the amendment and did so for two reasons. The first was that the claim had already been disallowed by the Court of Appeal: see Smith v McCusker QC [2000] WASCA 320 [148] ‑ [154]. Secondly, the application for the amendment was brought too late. Thus if par 38 of the appellants' submissions should be read as alleging an error by the trial judge, then there is no merit in the allegation.
The respondent also detects (par 134, WAB 100) that the appellants are asserting that the trial judge failed to take into account or understand the effect of the decisions of the Full Court and the Court of Appeal which are referred to earlier in these reasons. The respondent detects this in grounds 19, 57 and 62 and the appellants' written submissions par 24. The respondent detects that the appellants are alleging that the trial judge's approach was inconsistent with the decision of the Court of Appeal and that it was not open to the trial judge to refer to the Full Court's interpretation of Mrs Smith's 1986 witness proof as 'benevolent'. The decision of the Full Court and that of the Court of Appeal proceeded on the basis of an assumption that the appellants could prove all of their assertions. It did not mean that the assertions would be accepted or that the appellants would be successful.

The trial judge's opinion that the Full Court had a 'benevolent' view of the 1986 proof of evidence was justified. The Full Court reasons for decision unfortunately gave the appellants' claim a new lease of life in an altered guise. There is no doubt that the court should assist a self‑represented litigant by providing basic information about procedure relevant to litigation but a court should not advise on a course of action to be taken: Ives v Lim [2010] WASCA 136 [28] ‑ [29]. It is possible to read the Full Court's reasons as being no more than a detection of what they thought the appellants were contending the case against the bank was and on which the respondent should have advised. However, it went perilously close to advising the appellants on what course of action to take. Even if it did not stray into that area, it was certainly taken by the appellants to be a recommendation about the course of action to take. The result of it was that the appellants introduced into the statement of claim the 'true case' perceived by the Full Court. When this was pleaded out by the appellants, it alleged that the bank should have advised the appellants not to proceed with the purchase of the tractor before preparing a budget and development plan. This was a case bound to fail in the face of the incontrovertible evidence that the appellants had made up their mind to buy the tractor and went to the bank to get finance to buy the tractor, obtained the finance and bought the tractor. There was nothing to sustain a claim against the respondent that he should have advised on what the Full Court thought was the appellants' 'true case' against the bank.
The respondent also perceives that the appellants are contending that the trial judge erred by 'failing to distinguish between privileged and unprivileged documents' (par 143, WAB 101) which the appellants contend was necessary because if the claim against the bank had proceeded, the bank would not have had access to privileged documents. If this is the appellants' contention, it is without merit. The trial judge had to refer to all documents and instructions that were provided to the respondent, including any privileged correspondence between the appellants and their legal advisers, when considering the claim against the respondent.
The respondent referred to grounds 9 and 10 which together can be read as an assertion that the trial judge erred in law by failing to give adequate reasons for accepting the evidence of Mr Danks. Those grounds cannot be sustained. The trial judge set out the evidence and made findings in relation to the appellant's dealings with the bank at [436] ‑ [467]. The trial judge's findings were based on documents and the evaluation of the evidence of the relevant witnesses. See [472] ‑ [476]. In light of those paragraphs, the assertion that the trial judge did not adequately explain his conclusion that he would accept the evidence of Mr Danks cannot be sustained.
Finally, it is necessary to observe that many of the appellant's so‑called grounds of appeal and the appellant's submissions do no more than select some evidentiary material or observations made by the trial judge which the appellants pointlessly contend should have been given more attention or weight. The respondent correctly submits that there is no coherent submission about how these grounds might have led the trial judge to any different conclusion on any particular topic. It is not necessary to set out or refer to all of the grounds and submissions to which the respondent refers, but two examples will demonstrate the point. Thus ground 60 read:
The reasons at paragraphs 339 ‑ 350 are against the weight of evidence and wrongly reasoned.
It is not possible to glean anything further which might be regarded as a relevant assertion of error.

Appellants' application to adduce additional evidence

The appellants applied for leave:
to adduce additional documentary evidence contained in trial bundles 1 and 2, additional evidence redacted from witness proofs, statements and affidavits filed by the appellants and documentary evidence contained in the appeal books in FUL 153 of 1997.
These documents were incorporated into a yellow application book and Newnes JA made an order on 20 December 2011 that the application for leave to adduce the additional evidence be referred to the hearing of the appeal. The subject was raised at the beginning of the oral hearing, and Mrs Smith was left to renew her application if she felt it necessary to refer to any of the documents in the yellow book. The application was not renewed.
The principles governing an application for leave to adduce additional evidence under r 47(3) of the Supreme Court (Court ofAppeals) Rules 2005 (WA) are well known. See: Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45 [35] and [36]. The appellants did not establish any basis for the grant of leave and even if they had been admitted, none of the documents would have made any difference to the outcome of the appeal.
The application should be dismissed.

Conclusion

The trial judge was correct to find that the appellants' case against the bank based on the allegation that the bank was negligent in the preparation of the cash flow budget was doomed to fail. This was so on

the appellants' own evidence. The respondent was correct to advise that it was likely to fail and was correct to advise that in any event there could be no more than nominal damages. The claim that the respondent was negligent in failing to advise on the true case/proper case/no borrowing case against the bank was doomed to fail on the appellants' own evidence and for two reasons. First, it was more than 10 years after the respondent delivered his opinion that the appellants first formulated the no borrowing case against the bank (a case which Mrs Smith eschewed before the Court of Appeal but then persisted with at trial). As the respondent was not given any instructions suggesting that there was a true case/proper case/no borrowing case, he could not have been negligent in failing to advise that there was such a case. Secondly, it was a case entirely contradicted by the appellants' own evidence. They were not interested in not borrowing or deferring their borrowing. They had seen a new tractor they wanted and they were determined to get it with borrowed money. The National Bank's refusal to give them finance did not daunt them. They would not have accepted advice from the bank that they should not borrow money to buy the tractor.

This case is borne out of the appellants' determination to blame someone for financial loss which they suffered due to their inability to successfully farm their land. They blamed and sued the bank; they blamed and sued one of their solicitors; they blamed and sued the respondent. None of the claims had any merit. The appeal should be dismissed.
NEWNES JA: I agree with Pullin JA.