Applicant v Respondent

LEGAL PRACTITIONERS - Advocates' immunity from suit - No error in VCAT's conclusion that advocates' immunity did not apply - No 'intimate' or 'functional' connection between legal practice's negligence and the way the case was presented so as to bear on the manner in which the court determined it - Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Kendirjian v Lepore [2017] HCA 13; (2017) 259 CLR 275.

NEGLIGENCE - Legal practitioners - Breach of legal services retainer agreement - Failure to provide advice to standard of reasonably competent solicitor regarding risks of continuing to resist freezing order application in Supreme Court proceeding and potential for compromise after initial hearing - Order for repayment by legal practice to client's deceased estate of some costs relating to later hearing - No error of law relating to advocates' immunity from suit - No real prospect of establishing error of law in relation to duty of care, breach, and causation of loss.

ADMINISTRATIVE TRIBUNALS - Bias - On second day of VCAT hearing, senior member expressed concerns or preliminary views that new material and arguments a party sought to rely upon would raise the need for findings that might be adverse to the party - Recusal request - Senior member of VCAT refused to recuse himself, giving reasons - No potential basis for reasonable apprehension of possible bias - No error by senior member - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

1 Has the applicant established that orders made against it by the Victorian Civil and Administrative Tribunal (VCAT)[1] should be set aside for legal error on any one of the questions and grounds framed in the amended notice of appeal?

2 The applicant in this proceeding (Keogh & Co) is a legal practice. Keogh & Co entered into a legal services retainer agreement (retainer) with Roland Pless (Mr Pless Snr), in connection with Supreme Court litigation between Mr Pless Snr and his son, who is the respondent in this current proceeding before me (Peter Pless).[2]

3 Later, Mr Pless Snr claimed repayment from Keogh & Co of costs he had paid to it, alleging breach of the retainer. Mr Pless Snr commenced a proceeding in VCAT. Mr Pless Snr died before the completion of the VCAT proceeding. After the death of Mr Pless Snr, Peter Pless became the personal representative of the estate of Mr Pless Snr. In that capacity, Peter Pless continued the VCAT proceeding against Keogh & Co.

4 During the VCAT proceeding, based on the final iterations of points of claim and defence exchanged by the parties, it was uncontroversial that Keogh & Co was retained to advise Mr Pless Snr in connection with the conduct of the Supreme Court proceeding and would exercise due care and skill in doing so.[3] Mr Pless Snr alleged breaches of the retainer in relation to Keogh & Co's acts or omissions in the context of two Practice Court hearings, during that Supreme Court proceeding, of an application by summons filed by Peter Pless for a freezing order and an information order against Mr Pless Snr (called in the VCAT decision, the 'Summons application').[4] As the learned senior member of VCAT said, 'At its core, the dispute concern[ed] the alleged failure by the respondent firm to use a document, containing an undertaking, to resolve the Summons application.'[5]

5 VCAT found that Keogh & Co failed, in the period between the two Practice Court hearings, to advise Mr Pless Snr about the possibility of offering the proposed undertaking to Peter Pless. VCAT found that in this respect Keogh & Co failed to provide its services to the standard of a reasonably competent solicitor and breached its retainer. VCAT decided that this resulted in a loss to Mr Pless Snr's estate of $37,500,[6] representing part of the legal costs which Mr Pless Snr had paid to Keogh & Co. VCAT ordered Keogh & Co to pay Peter Pless that amount, in his capacity as executor of the estate of Mr Pless Snr.

6 Keogh & Co applied to this Court for leave to appeal on questions of law from the orders of VCAT.[7] Leave to appeal depends on whether the Court is satisfied that the appeal would have a real prospect of success.[8] Keogh & Co's amended notice of appeal raised 12 questions and 24 grounds. I must determine whether any of those grounds has a real prospect of establishing error of law on any of those questions, affecting VCAT's orders.[9]

7 In my view, Keogh & Co's questions and grounds may conveniently be arranged into five interrelated themes[10] that raised the following questions for my determination, and which I have answered as follows:

(a) Is there a real prospect that VCAT erred in law in its understanding or application of the principles of advocates' immunity from suit? See questions 1-3, and grounds 1-6, of the amended notice of appeal.

Answer: save as to question 1 and grounds 1 and 2, no, these arguments have no real prospect of success and leave will be refused. As to question 1 and grounds 1 and 2, leave to appeal is granted on the basis that they are arguable. Keogh & Co's arguments relied on authorities that predate the High Court's decisions in Attwells[11] and Kendirjian.[12] However, those two decisions have significantly reshaped the understanding of advocates' immunity in this country. Keogh & Co's arguments that Attwells and Kendirjian were inapplicable were incorrect. In light of the law as most recently and authoritatively explained by the High Court in those two cases, the appeal on question 1 and grounds 1 and 2 fails and will be dismissed.

(b) Is there a real prospect that VCAT materially misunderstood or failed to consider two items of evidence of Mr Pless Snr's instructions in a way that was significant to the decision VCAT had to make? See question 6 and grounds 11 and 12, and question 9 and grounds 17 and 18, of the amended notice of appeal.

Answer: no. The substance of the first item was raised in other material before VCAT and was taken into account. Any failure to specifically consider it was insignificant and immaterial to the decision to be made by VCAT. The second was clearly considered.

(c) Is there a real prospect that VCAT materially erred in law in its understanding or application of the principles relating to duty and breach in negligence? See questions 7, 8 and 11, and grounds 13-16, 21, and 22, of the amended notice of appeal.

Answer: no. The 'questions of law' and 'grounds' framed by Keogh & Co were not questions of law or alleged errors of law at all, but were merely attempts to dispute VCAT's factual findings by characterising them as errors of law. The factual findings were open on the material before VCAT and were not reached in a manner contrary to the standard of legal reasonableness.

(d) Is there a real prospect that VCAT erred in law in its understanding or application of the principles of causation of loss? See questions 4, 5 and 10, and grounds 7-10, 19 and 20, of the amended notice of appeal.

Answer: no. The question of whether causation could be made out under s 51(1)(a) of the Wrongs Act 1958 (Wrongs Act) on the material before VCAT was a matter for VCAT's factual evaluation. The inference chosen by VCAT was open on probative information before it and was not reached unreasonably. VCAT's reasoning involved choosing between available inferences, and was not mere speculation or conjecture.

(e) Is there a real prospect of a disqualifying appearance of bias - that is, a real prospect that a fair-minded lay observer might apprehend that the learned senior member constituting VCAT might not have brought an impartial mind to the determination of the questions before him? See question 12, and grounds 23 and 24, of the amended notice of appeal.

Answer: no. The words and conduct of the senior member did not in any way raise a potential basis for a reasonable apprehension of possible bias. In the factually complex setting of the case, and having regard to the manner in which the senior member expressed his concerns, the senior member's words and conduct were incapable of being fairly seen as bespeaking any potential for partiality or prejudgment. The way he expressed his concerns was measured and appropriate.

8 As noted by VCAT, the case originated in litigation between Peter Pless and his father Mr Pless Snr, developed into litigation between Mr Pless Snr and his former lawyers, Keogh & Co, and finally Peter Pless took over the litigation against Keogh & Co as executor of Mr Pless Snr's estate after his death in September 2019.[13]

9 VCAT described the Pless family as follows (I have added emphasis for defined terms used in these reasons):[14]

1. Mr Pless Snr was the patriarch of the Pless family. He had emigrated to Australia after the Second World War and, in 1951, established a successful business installing car radios.
2. In 1955, Mr Pless Snr married Ms Carmen Rathey [Mrs Pless]. The couple had two children: [Peter Pless] and Ms Manuela Rathey (also known as Manuela Pless-Bennett) [Ms Rathey].
3. The family lived at 7 Robertson Street, Toorak ('Toorak Home'), which Mr Pless Snr had purchased in 1960, and on which they built a two-storey family home.
4. When Mrs Pless passed away on 4 January 2014, [Peter Pless] became the executor of Mrs Pless' estate (as Ms Rathey, who was named in the will as co-executor, declined to prove). At that time:

• [Peter Pless] was living in a unit in Lansell Road, Toorak, which had been purchased by his mother through a company, CPR Pty Ltd ('CPR'), that she owned and controlled. (The source of the funds for this purchase is discussed further at [14] -[15] below.)
• Ms Rathey occupied the ground floor of the Toorak Home with her son, Mr Anton Pless.
• Mr Pless Snr occupied the first floor of the Toorak Home.

10 VCAT described the genesis of the dispute and Supreme Court proceeding between Peter Pless and his father, as follows:[15]

1. Over time, the business which Mr Pless Snr had established was expanded to include the installation of air conditioning units in cars, and then air conditioning units and ducted heating for homes and businesses. The business came to be incorporated as Prahran Car Radio Centre Pty Ltd ('PCRC') and operated from premises in Commercial Road, Prahran ('Prahran Property'). That property was owned by Empee Nominees Pty Ltd ('Empee Nominees'), a company in turn owned by Mr Pless Snr and Mrs Pless in equal shares.
2. In about 1982, Mr Pless Snr sold the PCRC business to [Peter Pless]. Subsequently, in 1989 (and against the wishes of Mrs Pless), Mr Pless Snr arranged to sell the Prahran Property for $5 million.
3. Mrs Pless demanded half the proceeds from the sale and, in late 1996, instructed solicitors to take steps to recover her share of funds from the sale of the Prahran Property. [Peter Pless] suggests that, at the time, she was concerned that she might be left destitute if she was to divorce Mr Pless Snr or that, if she passed away, Mr Pless Snr might pass the family's wealth to a new girlfriend or wife. Eventually that dispute was resolved and Mrs Pless received a payment from Mr Pless Snr which she put into CPR (and which was used, in part, to fund the purchase of the Lansell Road unit for [Peter Pless]).
4. The Toorak Home had been owned by Mr Pless Snr and Mrs Pless as joint tenants. As a result, Mr Pless Snr became the sole proprietor when Mrs Pless passed away. However, by her will, Mrs Pless left the remainder of her estate (including the remaining funds she had received from the sale of the Prahran Property) to [Peter Pless] and Ms Rathey.
5. After his mother's death, and based on information provided by his sister, [Peter Pless] formed the view that Mr Pless Snr was holding or controlling cash which he had taken from Mrs Pless' bank accounts and which properly belonged to her estate. [Peter Pless] engaged accountants to investigate, who opined that Mr Pless Snr had withdrawn 'sums totalling in excess of $2m from bank accounts in [Mrs Pless'] sole name' into other accounts in Mr Pless Snr's name (or companies he controlled).
6. As a result of that report, on 31 January 2015, [Peter Pless] informed Mr Pless Snr that Mrs Pless' estate would be making a claim against Mr Pless Snr, which was followed by a formal demand for repayment of funds on 16 March 2015.
7. Significantly, a few days prior to the formal demand being made, Mr Pless Snr instructed Keogh & Co to 'activate' two trusts, being The Anton Maximillian Pless Bennett Property Trust ('Property Trust') and The Anton Maximillian Pless Bennett Trust No. 2. While Mr Pless Snr's former solicitors had drafted the trust deeds, it was necessary for Keogh & Co to activate the trusts as his former solicitors refused to do so (given the claims which had been made by [Peter Pless]).
8. Subsequently, on 25 March 2015 (a week after the demand had been made), Mr Pless Snr executed a transfer of land to transfer the Toorak Home to Pless Nominees Pty Ltd ('Pless Nominees') as trustee of the Property Trust.
9. In his first affidavit, [Peter Pless] explains that he was 'concerned' by the transfer of the Toorak Home out of Mr Pless Snr's name and that, in order to secure the amounts claimed on behalf of the estate of his late mother, he lodged a caveat over the property on 10 September 2015.
10. Mr Pless Snr instructed Keogh & Co to lodge an application for removal of that caveat.
11. The Registrar of Titles notified [Peter Pless] of Mr Pless Snr's application to remove the caveat on 23 September 2015. [Peter Pless] formed the view that he would not be able to successfully oppose the application and that, in order to secure the amounts claimed for his mother's estate, he would seek a Freezing Order instead.

11 This led to Peter Pless commencing a proceeding against his father in the Supreme Court, and making the Summons application for a freezing order and information order against Mr Pless Snr, returnable in the Practice Court. Mr Pless Snr retained Keogh & Co to represent him in that proceeding and respond to the Summons application, which ultimately involved two Practice Court hearings before Riordan J, on 14 October 2015 (the First Court Hearing) and 19 November 2015 (the Second Court Hearing).

12 The following individuals were relevantly associated with or employed by Keogh & Co at the time:[16]

(a) James (Jim) Keogh, who was the principal of Keogh & Co. Mr Keogh had acted for Mr Pless Snr and his businesses prior to the Supreme Court proceeding, although the details of the work were not clear from the evidence.[17]

(b) John Ferguson, who was employed by Keogh & Co to start work on 13 October 2015. Prior to this, Mr Ferguson worked in the debt recovery section of the Australian Taxation Office and had familiarity with applications for freezing orders and the resolution of freezing orders.[18]

(c) Megan Clark, who was at all material times employed by Keogh & Co but was not actively involved in representing Mr Pless Snr. Mr Pless Snr contacted Ms Clark to discuss the conduct of Keogh & Co.

13 After service of the Summons application on Keogh & Co:[19]

1. A meeting was arranged for late afternoon on 13 October 2015 ('13 October Meeting'). ... It was at this meeting that Mr Keogh and Mr Ferguson (an employee solicitor at the firm) arranged for Mr Pless Snr to sign the Proposed Undertaking. The Proposed Undertaking was in the following terms:

I, Roland Edward Pless, undertake that I, on my own account and on behalf of Pless Nominees P/L will not dispose, encumber or otherwise deal with the [Toorak Home] until further order of the Court.

1. Given it only applied to the Toorak Home, it is apparent that the Proposed Undertaking was significantly narrower than the Freezing Order sought by [Peter Pless] in the Summons application (i.e. the Freezing Order sought would have applied to all assets of the Defendants and Pless Nominees).

14 Mr Ferguson told senior counsel for Mr Pless Snr that he got Mr Pless Snr to execute the Proposed Undertaking 'just in case it gets to that point'. Senior counsel responded 'I think we will be OK, we won't need it for now, keep it'.[20]

15 With respect to the First Court Hearing, on 14 October 2015, VCAT noted:[21]

1. ... while Riordan J expressed concern as to the actions of Mr Pless Snr - particularly with respect to the transfer of the Toorak Home to Pless Nominees - he ultimately declined to make any substantive orders that day. Instead, Riordan J further adjourned the matter to 19 November 2015 ('Return Date'), in the expectation that Mr Pless Snr would file an affidavit by that time providing further information concerning the financial arrangements between Mr Pless Snr and his late wife.

16 One of the exchanges that took place during the First Court Hearing between Riordan J and senior counsel for Mr Pless Snr was as follows:[22]

HIS HONOUR: Let me express it so you can correct me and put me on the right track. Aren't they saying here that they've got an arguable case that moneys have been moved around in a way which has benefited your client and ultimately they say, at trial, they'll establish that that was wrongful and the estate's entitled to recovery of it.

MR CLARKE: That's their case.

HIS HONOUR: That's their case. Then they say, "And we don't know where that money has gone but since we made the demand, he did something very strange. He took the family home and transferred it to a company", where I think he's the sole shareholder, isn't he?

MR CLARKE: Yes.

HIS HONOUR: "He's the sole shareholder and by doing that, he's now put into the hands of the company the one asset which he knows he has and would be available to satisfy the judgment that we say we'll be entitled to at the end of this proceeding".

MR CLARKE: Yes, Your Honour.

HIS HONOUR: So he's put this third party into a position where that third party can now dispose of it, having got it for nothing.

MR CLARKE: Yes. The - - -

HIS HONOUR: And your client doesn't want to explain what's going on here.

17 Later in the hearing, his Honour also made the following remarks:[23]

HIS HONOUR: I am concerned by the strange nature of the dealings and the earlier deals which appear to have been for the purpose of avoiding Peter Pless to have access to assets.

MR CLARKE: Yes.

HIS HONOUR: And this action, this strange action and the timing of it being after the demand was made, you would normally be concerned that when a demand is made and persons start gifting away their assets, that that might be for the purpose of avoiding the demand in one fashion or another. But your client hasn't had the opportunity to respond to this and he might have a perfectly reasonable explanation for it.

18 His Honour indicated he would give Mr Pless Snr one month to explain these matters.[24] His Honour said he was currently minded and inclined to think, without material and an explanation:[25]

... that there is a prima facie case. .... And, secondly .... there's good grounds for concern your client may dispose or take further action to make this asset, which he's already put beyond his immediate reach, so as a shareholder, further beyond it. But much of that is based on a failure to answer and if your client hasn't been given a proper opportunity, I'm not going to make any orders until your client is given the opportunity.

19 Immediately following the First Court Hearing, Mr Ferguson sent a report by email to Mr Pless Snr that summarised the arguments that had been made at the First Court Hearing and then said as follows:[26]

In summary, Justice Riordan agreed there was no immediate risk that assets were being dissipated and refused your son's application for freezing orders at this stage. He did not seek or require you to give any undertakings.

However, Justice Riordan indicated that he believed there were serious issues to be tried. He expects you to provide evidence explaining how you and your wife managed your affairs (concerning funds transfers from the various bank accounts) and explaining the circumstances of the transfer of the Robertson St property to Pless Nominees.

The Judge focussed on the transfer of the 7 Robertson St property, and expressed concern it took place so soon after receiving letters of demand from your son's lawyers. It is the only major asset your son is aware of, and the transfer of it at that time was "strange" (in Justice Riordan's words).

However, Justice Riordan decided that you should be given the opportunity to explain the circumstances of the property transfer, and of the funds transfers generally before he makes any further orders.

20 VCAT found at [32] that significant work was undertaken by Mr Pless Snr's legal team to prepare the contemplated affidavit, as well as a defence to the substantive Supreme Court proceeding.

21 VCAT went on to refer to the Second Court Hearing on 19 November 2015, and the finalisation of the Supreme Court proceeding, as follows:[27]

1. At the hearing on the Return Date ('Second Court Hearing'), Riordan J made a Freezing Order in the following terms ('Court Freezing Order'):

You must not in any way dispose of, deal with or diminish the value of the [Toorak Home].

1. As with the Proposed Undertaking, it can be observed that because the Court Freezing Order is restricted to dealings with the Toorak Home, the scope of that order is significantly narrower than that which was sought by [Peter Pless] in the Summons application. (On the other hand, it is slightly wider than the Proposed Undertaking in that it also restricted Mr Pless [Snr] from taking steps to 'diminish the value' of the Toorak Home.)

2. After the Second Court Hearing, the substantive Supreme Court proceeding continued, finally settling by agreement in December 2016. Under the Deed of Settlement, between Mr Pless Snr, Pless Nominees, [Peter Pless] and Ms Rathey, it was agreed that:

• the Toorak Home was to be subdivided into two separate titles, comprising the ground floor (in which Ms Rathey was living) and the first floor (in which Mr Pless Snr was living);

• the ground floor was to be sold on the open market, with the settlement proceeds to be distributed as to 2/3rds to [Peter Pless] (in his capacity as executor of Mrs Pless' estate) and 1/3rd to Mr Pless Snr or Pless Nominees; and

• Ms Rathey did not have any proprietary interest in the Toorak Home and would provide vacant possession of the ground floor.

1. At auction, the ground floor of the Toorak Home was passed in below the reserve and, ultimately, was sold by Pless Nominees to [Peter Pless] by contract dated 20 October 2017.

22 Mr Pless Snr commenced the VCAT proceeding against Keogh & Co in October 2018.[28]

23 During the course of the proceeding in VCAT Mr Pless Snr filed at least three iterations of points of claim and amended points of claim, Keogh & Co filed at least two iterations of points of defence and amended points of defence, both parties filed various affidavits, produced documents (in several tranches), and prepared several iterations of tribunal books and supplementary tribunal books. The VCAT proceeding generated 600 pages of transcript of hearing days, including one from which a claim of apprehended bias is said by Keogh & Co to arise.

24 The transcripts for VCAT hearings on 20 September 2022, 21 September 2022, 31 March 2023, 13 April 2023, and 21 June 2023 were included in the Court book for this proceeding in the Court. I received the Court book into evidence in its entirety. It also appears from the cover page of the VCAT decision that a final hearing took place on 11 August 2023, followed by further written submissions later in August.

25 Peter Pless, Mr Ferguson, and Mr Keogh each prepared affidavits, which were accepted into evidence subject to two sets of excisions of Mr Keogh's affidavits.[29] They were each called as witnesses and were cross-examined.

26 The tribunal book in the VCAT proceeding consisted of five separate books - the initial tribunal book and four further supplementary tribunal books, dated between 7 July 2022 and 12 April 2023.

27 The initial tribunal book, dated 7 July 2022, was 481 pages long and contained 67 documents. This included the final iterations of points of claim and defence, being the second further amended points of claim dated 5 April 2022, the points of defence to the second amended points of claim dated 14 June 2022, further and better particulars to the points of defence dated 14 June 2022 and the reply to amended points of defence dated 24 June 2022. There were clearly previous iterations of at least some of these documents which were not included in the tribunal book or court book. The initial tribunal book also included three affidavits and their exhibits, which included correspondence, invoices, and court documents including submissions, affidavits, transcripts, orders, and the earliest iterations of the points of claim and points of defence.

28 The first supplementary tribunal book, dated 19 September 2022, was 15 pages long and contained eight documents. These consisted of tax invoices, correspondence, and one set of submissions. The second supplementary tribunal book, dated 20 September 2022, was 39 pages long and contained six documents, being email correspondence, an account statement, and two further affidavits. The third supplementary tribunal book, dated 14 October 2022, was 16 pages long and contained four documents, being a file note and several financial documents. The fourth supplementary tribunal book, dated 12 April 2023, was 36 pages and contained 23 documents including email correspondence, file notes, and an unsworn affidavit.

29 Keogh & Co raised a claim of apprehended bias on the second day of the hearing, 21 September 2022. On that morning, Mr Ferguson was called to give evidence. Questions arose about a paragraph of Mr Keogh's affidavit dated 19 September 2022, and about an unpleaded argument on which Keogh & Co sought to rely on the question of causation of loss to Mr Pless Snr, contained in the supplementary tribunal book dated 20 September 2022. I address the context in which the apprehended bias claim arose in more detail at the end of the 'Consideration' section of these reasons.

30 Although not addressed in the VCAT decision or by the parties before me, it is relevant to identify the source of VCAT's power in the proceeding appealed to this Court. In my view, that source was ss 182 and 184 of the Australian Consumer Law and Fair Trading Act 2012.[30]

31 Relevantly, ss 182 and 184 of the Australian Consumer Law and Fair Trading Act 2012 empowered VCAT to hear and determine a 'consumer and trader dispute',[31] which included a dispute between a purchaser and supplier of services in relation to a supply of services, and included any dispute or claim in negligence save for a claim of personal injury. VCAT was empowered to order the payment of a sum of money by way of damages, or the refund of money paid under a contract, in relation to such a dispute.[32]

32 VCAT's function in the proceeding commenced by Mr Pless Snr was to determine whether Mr Pless Snr (or his estate) was entitled to the repayment of any of the legal fees and costs that had been paid by him to Keogh & Co. VCAT was empowered to order money to be paid or refunded if it was paid as a result of a breach by Keogh & Co of its duty of due care and skill forming part of the retainer, or a breach of a duty of care under the general law of the tort of negligence. Both forms of duty and breach were alleged in the VCAT proceeding.[33] If VCAT determined that Keogh & Co breached its duty to Mr Pless Snr, it then had to decide whether this caused him (and his estate) loss in the form of excess legal costs. Under both the contractual claim and the tortious form of claim in negligence, s 51 of the Wrongs Act governed the question of causation of loss.[34] Section 51 was noted in the VCAT decision at [147].

33 The proceeding before VCAT did not involve any process under the Legal Profession Uniform Law (Vic) scheduled to the Legal Profession Uniform Law Application Act 2014 (Vic), such as a costs assessment, complaint, consumer matter, or compensation order.

34 The VCAT decision identified the claims before it as follows:[35]

1. As executor of Mr Pless Snr's estate, [Peter Pless] claims that Keogh & Co breached the terms of its retainer by:

(a) failing to comply with Mr Pless Snr's instruction that the Proposed Undertaking be conveyed to [Peter Pless'] lawyers to compromise the Summons application ('Primary Claim');

(b) failing to advise Mr Pless Snr as to the likely cost of, and his prospects in, opposing the Summons application or as to the alternatives to doing so and the course that Mr Pless Snr ought adopt or, to the extent advice was provided on those matters, failing to do so with due care and skill ('First Alternative Claim'); or

(c) providing erroneous advice, namely that offering the Proposed Undertaking would have prevented Mr Pless Snr from disposing of any assets he held or controlled (as opposed to being limited to the Toorak Home as drafted) ('Third Alternative Claim').

(Additional alternative claims were pleaded under the Australian Consumer Law (Victoria), namely the guarantee in section 60 that services will be rendered with due care and skill, and in respect of misleading and deceptive conduct under section 18 of that legislation. However, as those alternatives were not addressed in the applicant's oral submissions, and substantially overlap the breach of retainer claims, they are not further discussed in these Reasons.)

35 The Primary Claim, First Alternative Claim, and Third Alternative Claim were ultimately set out in Mr Pless Snr's second further amended points of claim dated 5 April 2022.[36] VCAT did not identify a 'Second Alternative Claim'.

36 By his Primary Claim, First Alternative Claim, and Third Alternative Claim, Mr Pless Snr alleged that Keogh & Co's breach of the retainer resulted in him suffering loss.[37]

37 Mr Pless Snr also alleged that Keogh & Co breached a common law duty to exercise reasonable care and skill, causing Mr Pless Snr loss.[38] In effect, this was a claim in tort for negligence.

38 Keogh & Co's defence to these claims was ultimately set out in its Amended Points of Defence dated 12 October 2022. For present purposes, it need only be noted that the defence:

(a) stated that advocates' immunity was a complete defence to Peter Pless' claims;[39]

(b) denied the allegations set out in the First Alternative Claim, further stating that it did advise Mr Pless Snr about the effect of the Summons Application and alternative courses available;[40]

(c) denied the allegations by Mr Pless Snr regarding its breach of a common law duty to exercise reasonable care and skill;[41]

(d) stated that if Keogh & Co failed to comply with Mr Pless Snr's instructions, Mr Pless Snr's estate suffered no loss or damage.[42]

39 After summarising the claims and defences, the VCAT decision gave an overview of the outcome.[43]

40 In this overview, VCAT explained that it rejected the Primary Claim and the Third Alternative Claim. With respect to the Primary Claim, VCAT was not reasonably satisfied that Mr Pless Snr gave instructions to Keogh & Co in the terms pleaded.[44] With respect to the Third Alternative Claim, VCAT found that all the evidence suggested that Mr Ferguson of Keogh & Co was clear in explaining the scope of the Proposed Undertaking to Mr Pless Snr.[45]

41 However, VCAT found that the First Alternative Claim was made out, by reference to Keogh & Co's conduct or omissions in the period following the First Court Hearing (on 14 October 2015) and before the Second Court Hearing (on 19 November 2015). With respect to the First Alternative Claim, VCAT found that:

(a) Keogh & Co did not have an obligation to advise Mr Pless Snr prior to the First Court Hearing on 14 October 2015 in the manner alleged by him,[46] and in any event, had there been an obligation and breach of any such obligation, it would not necessarily follow that the costs of preparing Mr Pless Snr's affidavit and attending the Second Court Hearing on 19 November 2015 was caused by that breach.[47]

(b) However, a reasonably competent solicitor would have 'revisited' certain remarks made by Riordan J at the First Court Hearing with Mr Pless Snr following the First Court Hearing on 14 October 2015 that showed it to be 'highly likely' the judge would make a Freezing Order on the Return Date, and would have advised Mr Pless Snr that the prospects of following a path of seeking consent orders based on the Proposed Undertaking 'might save him the costs of a contested hearing on the Return Date and at least some of the costs associated with preparing the affidavit'.[48]

(c) Keogh & Co breached its retainer with Mr Pless Snr by failing to provide such advice to him at that time.[49]

42 VCAT further found that, considering the decisions in Attwells,[50] Kendirjian,[51] and Spralja,[52] the defence of advocates' immunity did not extend to the failure to properly advise as to a settlement out of court, and dismissed the defence.[53]

43 VCAT found that, based on the information available, the net loss occasioned by Keogh & Co's breach of retainer was '$34,500'[54] or '$37,500',[55] being the money that would not have been required or paid by Mr Pless Snr if Keogh & Co had not breached its retainer.

44 VCAT ordered Keogh & Co to pay $37,500 to Peter Pless, in his capacity as executor of the estate of Mr Pless Snr,[56] with interest and costs reserved and to be assessed on the papers following an exchange of submissions.[57]

45 The VCAT decision then gave a detailed overview of the evidence,[58] the submissions (including noting a remark by Hasluck J in Mijatovic),[59] the decision in Spralja and the parties' submissions about it_,_[60] before turning to the details of its analysis.[61] The analysis closely followed the earlier overview, save that it was structured into five issues, one of which was a question not expressly covered in the earlier overview of the claims.[62] The ratio decidendi (critical reasoning) of VCAT's decision leading to the orders against Keogh & Co was its reasoning and findings on issue 3, 4 and 5 in the analysis section, which followed the overview set out earlier in the VCAT decision relating to breach of retainer by Keogh & Co as alleged in the First Alternative Claim (described as issue 3), causation and loss (issue 4) and the inapplicability of advocates' immunity (issue 5).

46 VCAT's detailed reasoning on issue 3, breach of retainer, was relevantly as follows (including original footnotes):

1. [At the First Court Hearing] While Riordan J suggested that he was 'currently minded to think that there [was] a prima facie case' or 'serious question to be tried',[63] and some risk that Mr Pless Snr might 'dispose or take further action to make [the Toorak Home], which he's already put beyond his immediate reach, ... further beyond it',[64] he did not consider it necessary to make any interim orders on the basis that:

• Mr Pless Snr had not yet had a proper opportunity to explain matters, particularly the financial arrangements between himself and Mrs Pless;[65]
• counsel had now been engaged, who could explain the likely consequences of any further action being taken by Mr Pless Snr to dispose of the Toorak Home, such that it 'would be a brave move', if the 'court later felt that it had been misled when it was told there was no intention of disposing of this asset ... and subsequently found that in the interim things had occurred';[66] and
• given Mr Pless Snr had 'lots of opportunity to consider these matters and he hasn't, it appears ... disposed of the shares [in Pless Nominees] already [i.e. to put the Toorak Home further beyond his reach], then the risk of him doing so in the next month ... would be minimal'.[67]

1. While Mr Ferguson provided a prompt and accurate report of the First Court Hearing to Mr Pless Snr (see [81]), noting that on the Return Date 'Justice Riordan [would] make a further decision on the freezing orders', he did not provide any advice as to the likelihood of a Freezing Order being made or the steps that Mr Pless Snr could take to mitigate the costs and risks of a Freezing Order being made. Further, there is nothing to suggest that Mr Ferguson or Mr Keogh provided such advice at any time between the First Court Hearing and the Return Date.
2. [Peter Pless] contends that this was 'an obvious case' for a freezing order to be made and a competent solicitor would have advised Mr Pless Snr that his prospects of opposing the application for Freezing Orders were 'poor or problematic at best', that it would be costly to do so and that he ought offer the Proposed Undertaking to resolve the Summons application (see [113]-[114]). He says this was more so after the First Court Hearing, in light of the concerns expressed by Riordan J (see [115]).
3. As discussed at [153], in Spralja, Judge Woodward found that the duty of the lawyers in that case - in acting for Mr Spralja as a defendant in proceedings - included obtaining all information necessary (within the time available) to understand the issues in the proceeding and the strengths and weaknesses of the client's defence, as well as identifying the range of possible outcomes in the proceeding and advising the client in the context of any settlement proposals.
4. Similarly, in Mijatovic, Hasluck J found that the duty of the solicitor in acting for a litigant extended 'beyond the scope of his instructions' and included 'acquaint[ing] his client with any real and foreseeable risks of economic loss' from the proposed proceeding (see [104]).
5. While it may be accepted that there are differences between the present case and each of Spralja (where a settlement offer had been made by the plaintiff) and Mijatovic (where the client instituted the proceedings), the discussion of the broad scope of a lawyer's duty in representing a client in litigation remains apt.
6. Although Riordan J was willing to see if Mr Pless Snr was able to provide a satisfactory explanation for the transfer of funds from Mrs Pless' account (going to the real issue to be tried in terms of the substantive proceeding) and/or the transfer of the Toorak Home to Pless Nominees (going to the necessity of a Freezing Order), given that:

• Mr Keogh had given effect to the transfer of the Toorak Home from Mr Pless Snr to Pless Nominees, despite being aware of the concerns raised by Mr Pless Snr's former solicitors (see [18]);
• Mr Ferguson was aware (as he recounted in his 14 October 2015 email) that Riordan J found the timing of that transfer 'strange'; and
• Mr Ferguson heard the entirety of the exchange between Riordan J and Mr Clarke [senior counsel for Mr Pless Snr] at the First Court Hearing (particularly the matters highlighted at [50]).

I consider that the prospects of the proposed affidavit allaying Riordan J's concerns and avoiding a Freezing Order being made on the Return Date was (objectively) quite low, with the real question being whether it would be possible to limit any Freezing Order to the Toorak Home or Riordan J would extend it to any other assets of Mr Pless Snr or his related entities.

1. I consider that a reasonably competent solicitor would have drawn this to the attention of Mr Pless Snr, either as part of the report of the First Court Hearing or by arranging a meeting with Mr Pless Snr soon thereafter. I also consider that a reasonably competent solicitor would have considered and advised Mr Pless Snr on the likely costs, and as to his options to mitigate those costs, of continuing to defend the Summons application. As in Spralja, the actual advice provided (i.e. in Mr Ferguson's email of 14 October 2015 (see [81])) was 'superficial' and failed to ensure that Mr Pless Snr could [be] given updated instructions on an informed basis (see [154]).
2. That there would be complexity (and therefore considerable cost) in preparing the contemplated affidavit (including the need for evidence from Mr Pless Snr's accountant) would have been apparent from the detailed description of transactions in the statement of claim which had been filed by [Peter Pless][68] as well as the submissions of Mr Black at the First Court Hearing.
3. The cost ought to have been foreseeable. However, it can be inferred that communication in this regard was limited. ...
4. In terms of steps that could have been taken to mitigate the costs, and in circumstances where Mr Pless Snr had already signed the Proposed Undertaking, an obvious option was to offer that to [Peter Pless] to compromise that part of the application relating to the Freezing Order.
5. For these reasons, I am satisfied that Keogh & Co breached its retainer with Mr Pless Snr by failing to provide such advice to him following the First Court Hearing.

47 VCAT's detailed reasoning on causation, forming part of issue 4,[69] was relevantly as follows (including original footnotes):

1. While there is, of course, no direct evidence from Mr Pless Snr as to what he would have done if he had been properly advised at to the likely costs of continuing to defend the Summons application (and as to his options to mitigate those costs), in light of the comments made by Riordan J during the First Court Hearing, I consider it open to find that Mr Pless Snr would have agreed to offer the Proposed Undertaking to [Peter Pless] (in those circumstances) and otherwise taking steps to minimise the extent (and associated cost) of any affidavit to be filed.
2. It is true that Mr Pless Snr had made many comments reflecting his extreme dislike for his son (at least at that point of time). It would be fair to say that, at the time, he was clearly unwilling to settle the Supreme Court proceeding on any basis. However, despite his age and language barriers, he had been convinced by Mr Ferguson to sign the Proposed Undertaking to avoid a more onerous Freezing Order. In those circumstances, I am satisfied and find that, if he [had] been properly appraised as to the matters set out in the proceeding section, he would have come round and agreed to offer the Proposed Undertaking to [Peter Pless] with a view to settling the Summons application.
3. The assessment of causation and loss is difficult in this matter because there is obviously an interrelationship between the substantive Supreme Court proceeding and the Summons application.
4. At the most basic, some of the fees reflected in the relevant Keogh & Co invoices related to the preparation of Mr Pless Snr's defence to the substantive proceeding. ...
5. Further, I reject [Peter Pless'] (self-serving) statement[70] that he would simply have accepted the Proposed Undertaking to resolve the Summons application. That evidence is inconsistent with:

• the Summons application including applications for both a Freezing Order and the Information Order;
• [Peter Pless'] rejection of a more modest request from Mr Pless Snr to defer the time for filing of his defence in the Supreme Court proceeding (see [99]); and
• the concerns expressed by Mr Black (who represented [Peter Pless] for the Summons applications) in the First Court Hearing about Mr Pless Snr selling the shares in Pless Nominees or taking other steps which might affect the value of the Toorak Home.[71]

• [Peter Pless] would have wanted to see an affidavit from Mr Pless Snr at least addressing his assets, and the funds he had taken from Mrs Pless' accounts, before he would be likely to agree to any settlement of the Summons application; and
• the form of the undertaking acceptable to him would have been the subject to some negotiation to be closer to what Riordan J ultimately ordered, e.g. to address indirect dealings with Toorak Home.

1. While I find that the breach of retainer caused loss to Mr Pless Snr, I consider that loss is limited to:

• the cost of Keogh & Co drafting, and counsel settling, that part of Mr Pless Snr's affidavit (and the affidavit of his accountant) directed to defence of the Freezing Order (as opposed to defence of the Supreme Court proceeding);
• the cost of counsel preparing for the hearing in opposition to the Freezing Order (including time spent on researching relevant authorities); and
• the cost of the Second Court Hearing beyond the time it would have taken ... to briefly explain the consent orders to Riordan J (if required),[72]

in turn reduced by some costs for Keogh & Co to obtain further information from Mr Pless Snr (i.e. as to his assets and the transactions concerning his wife's accounts) and the inevitable costs of going back and forth with a proposed offer of settlement and then finalising proposed consent orders to put before the Court.

1. There is insufficient information in the invoices rendered by Keogh & Co, or the memorandum of costs from counsel, to precisely isolate the costs identified in the preceding paragraph. Doing the best I can with the information available, I have determined the loss to be $37,500.00. ...

48 VCAT's detailed reasoning on issue 5, advocates' immunity, was relevantly as follows:

1. I accept that the advocates' immunity applies to work done in Court, as well as any work - whether done by counsel or a solicitor - which is functionally connected with work in Court.
2. However, the decisions in Attwell, Kendirjian and Spralja all make clear that the immunity does not extend to advice regarding settling a matter out of Court, including situations where the settlement is given effect to by an order of a Court.
3. I do not accept that, because Riordan J did make a Freezing Order at the Second Court Hearing, that the work done by Keogh & Co and Counsel had the 'functional connection' with the orders to bring the advocates' immunity into play. Relevantly, the breach of retainer which I have accepted does not involve consideration of anything said, done or determined by Riordan J at the Second Court Hearing. As such, there is no 'collateral attack' on his decision, being the basis for the advocates' immunity.
4. On this point, the case is indistinguishable from Spralja, where Judge Woodward found that the advocates' immunity did not apply (see [158]).
5. For these reasons, I reject that defence.

49 Finally, in its 'Conclusion' section, VCAT relevantly stated:

1. Having regard to the foregoing reasons, I have ordered that Keogh & Co pay [Peter Pless] (in his executorial capacity) the sum of $37,500.00, effectively by way of refund of fees that would not have been required or paid by Mr Pless Snr if Keogh & Co had not breached its retainer in the manner identified at [199] to [211].

50 VCAT then explained that it would direct a timetable for submissions on interest and costs.

F. Applicable principles - appeal on a question of law

51 By its amended notice to appeal, the applicant sought leave to appeal to the Court from VCAT's orders pursuant to s 148 of the VCAT Act. Section 148(1) relevantly provides:

(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

52 The proposed appeal must be limited to questions of law. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[73] The proposed appeal cannot extend to correction of alleged errors of fact, provided the findings were open on the material and were not reached in breach of the standard of legal reasonableness.[74]

53 That said, the limits of the Court's function in a proceeding under s 148 do not altogether prevent a court from considering mixed questions of fact and law. In some circumstances, it will be permissible to consider whether VCAT erred in law in reaching conclusions on mixed questions of fact and law.[75]

54 There are many cases in which it has been said that the question of whether primary facts as found fall within a statutory provision properly construed, is a question of law,[76] or (more precisely) is 'generally' a question of law.[77] The same applies to a test arising at common law or in equity.[78] But on a close consideration of the authorities it can be seen that this important proposition is subject to various qualifications and exceptions. I return to this topic and examine the authorities in more detail later in these reasons.

55 As mentioned in the 'Introduction' section of these reasons, it is convenient to consider the questions and grounds in the amended notice of appeal by reference to the key themes I have framed in paragraph 7 above. Under the headings of this section that follow, I set out my reasoning and conclusions in response to all the questions raised by Keogh & Co in this proceeding, arranged in those themes.

(a) Advocates' immunity grounds (questions 1-3 and grounds 1-6)

56 The first question is whether VCAT erred in law in its understanding or application of the principles of advocates' immunity from suit. In the amended notice of appeal, Keogh & Co claimed that VCAT erred in this respect in three ways:

(a) in misunderstanding and failing to apply the principle that out of court work will attract advocates' immunity provided there was an 'intimate connection' or 'functional connection' with the way the case is presented to the court, with specific reference to VCAT's conclusion that there was no such connection between the failure to advise and the way the case was presented at the Second Court Hearing (amended notice of appeal question 1 and grounds 1 and 2);

(b) in failing to recognise that the immunity should apply to a case regarding impugned failure to advise on settlement if the client had shown himself to be 'obdurately opposed' to settlement (amended notice of appeal question 2 and grounds 3 and 4); and

(c) in failing to address the availability of the immunity before addressing the merits of the claim in negligence made against the relevant lawyer (amended notice of appeal question 3 and grounds 5 and 6).

57 Keogh & Co's submissions on advocates' immunity were wide-ranging and in certain respects went beyond the grounds of the amended notice of appeal.

58 For example, Keogh & Co's amended notice of appeal asserted error by VCAT in failing to find that there was an intimate connection or functional connection between the impugned conduct of Keogh & Co out of court and the manner in which counsel conducted the matter (only) at the Second Court Hearing. However, Keogh & Co's submissions also asserted that there was 'an intimate functional connection between the work out of court which led to a decision affecting the conduct of the case in court at the First [Court] Hearing'.[79]

59 With respect to the Second Court Hearing, Keogh & Co submitted that VCAT ought to have 'additionally found that there was an intimate functional connection between the alleged omission in failing to advise Roland [i.e., Mr Pless Snr] to offer the Proposed Undertaking inter partes to Carmen's Executor [i.e., Peter Pless] with a view to Roland giving the Proposed Undertaking (or a variation thereof) to Justice Riordan at the Second [Court] Hearing.' This submission begged the question of what aspect of the presentation of the case was affected.

60 This point, and Keogh & Co's other submissions about the impact of the negligent omission on the Second Court Hearing, were elusive. For the reasons I set out in the 'Analysis' section below, in my view they did not explain the key point that arose from Attwells and Kendirjian, which is to identify an intimate or functional connection between the alleged out-of-court negligence and the way the case was ultimately presented to the relevant court.

61 Keogh & Co's submissions contended in various ways that the negligence claim against Keogh & Co infringed the principle of finality on which advocates' immunity rests. It was submitted that the negligence claim involved collateral challenges to the exercise of judicial power by Riordan J at the Second Court Hearing. In this regard, Keogh & Co submitted that if the Proposed Undertaking had been offered by Mr Pless Snr, and this had led to a consent disposition at the Second Court Hearing, this would 'still have led to a decision as to the manner in which the defence of the cause was conducted at the Second Hearing, ... invoked the exercise of judicial power... with corresponding distinctly judicial contempt consequences in the event of breach', and '[a]s such the facts of this care are different from the facts [of] Attwells and Spralja where a proceeding [was] discontinued by consent orders and terms of settlement.'[80] Keogh & Co submitted that the findings of VCAT 'traversed and considered what Riordan J did and determined at the Second [Court] Hearing' and involved a collateral challenge inconsistent with the finality principle.[81]

62 There was also a suggestion in Keogh & Co's submissions that the negligence findings in some way impugned or were inconsistent with an exercise of power by Riordan J at the First Court Hearing, apparently based on the assertion that his Honour directed the filing and service of an affidavit on that occasion.[82]

63 Keogh & Co's submissions[83] referred to authorities on the immunity predating Attwells, including Giannarelli v Wraith,[84] D'Orta-Ekenaike v Victoria Legal Aid, [85] and the New South Wales Court of Appeal's five member decision in Woodland v Donnellan.[86] In particular, Keogh & Co relied upon an obiter dictum (inessential reasoning) of McHugh J in D'Orta[87] referring to advice that affects the client's decision directing the course of proceedings, and suggesting that this underpins the application of advocates' immunity to advice.

64 Keogh & Co submitted that VCAT ought to have distinguished each of Attwells, Spralja[88] and Kendirjian for various reasons. Three key points of distinction were advanced:

(a) First, those three cases each involved conduct of commission (of the giving of negligent advice about specific settlement proposals) and not omission.[89]

(b) Second, the principle identified in McHugh J's obiter dictum in D'Orta noted above (linking negligent advice and consequential instructions about the course of conduct of a proceeding) has never been doubted and should have been applied.[90]

(c) Third, Attwells[91] left open whether the immunity would apply where an order (or other exercise of judicial power) was required to effectuate a settlement.[92] Related to this, Keogh & Co submitted that Judge Woodward's decision in Spralja[93] relied on the settlement in that case being reached separately from the making of consent orders.[94]

65 There were many other strands of argument developed on behalf of Keogh & Co that were said to relate to advocates' immunity,[95] but in my view they were in essence either additional ways of making the points I have summarised above, or they were insufficiently clear or significant to warrant separate treatment in these reasons.

66 It is convenient to first set out the applicable principles with respect to advocates' immunity, including in the context of potential compromises and settlements. Following earlier High Court decisions in Giannarelli and D'Orta, in 2016 and 2017 the High Court handed down Attwells and Kendirjian, which both provided significant clarification of the applicable principles and confined the scope of the immunity.

67 D'Orta involved advice that led to an accused person pleading guilty in circumstances where the accused later sued his lawyers and alleged the advice was negligent.

68 The Court by majority rejected an attempt to re-open Giannarelli, confirmed the existence of the immunity, and held that it could apply to a solicitor. A joint judgment was given by a majority comprising Gleeson CJ, Gummow, Hayne and Heydon JJ. McHugh J and Callinan J each gave separate judgments, agreeing with the outcome. Kirby J dissented.

69 In the course of his separate judgment, McHugh J said (citations omitted):[96]

The applicant sought to distinguish this case from Giannarelli on the basis that it involves a failure to warn in the Rogers v Whitaker sense. That submission must be rejected. The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence. An integral part of the advocate's role is the giving of advice on the basis of which the client will give instructions that direct the course of proceedings. The advice is critical to and often determinative of the client's decision. There is no relevant distinction between instructions given on negligent advice and the negligent carrying out of instructions if both are intimately connected with the conduct of litigation.

70 In Attwells, there was another attempt to re-open the doctrine of advocates' immunity as stated in Giannarelli. The case concerned allegations of negligent advice given by a legal practice to guarantors of a company's debt that led to a settlement agreement and consent orders exposing the guarantors to liabilities exceeding the limit of the relevant guarantee. All members of the High Court rejected the submission that the immunity should be abolished. However, the Court made it clear that the immunity should only be recognised to the extent required by its rationale, and that the basis of the immunity is 'the protection of the finality and certainty of judicial determinations'.[97] For that reason, the immunity did not extend to negligent advice which led to the settlement of a claim in civil proceedings.

71 In their joint judgment, French CJ, Kiefel, Bell, Gageler and Keane JJ summarised the reasons for this as follows:

1. ...The authoritative test for the application of the immunity stated in D'Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute. No doubt an advice to cease litigating which leads to a settlement is connected in a general sense to the litigation which is compromised by the agreement. But the intimate connection required to attract the immunity is a functional connection between the advocate's work and the judge's decision. ...
2. ... in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties' agreement was embodied in consent orders.

...

1. While the plurality in D'Orta did not state explicitly that advice leading to an out of court settlement was outside the scope of the immunity, it is apparent on a fair reading of their Honours' reasons that the rationale of the immunity does not extend to advice which does not move the case in court toward a judicial determination.

2. ... To accept that the immunity extends to advice which leads to a settlement of litigation is to decouple the immunity from the protection of the exercise of judicial power against collateral attack. Such an extension undermines the notion of equality before the law by enlarging the circumstances in which lawyers may be unaccountable to their clients.

...

1. Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the 'intimate connection' between the advocate's work and 'the conduct of the case in court' must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an 'intimate connection' between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate's work and the client's loss; rather, it is concerned only with work by the advocate that bears upon the judge's determination of the case.

72 Their Honours noted and dismissed an argument that an 'anomaly' arose from this approach, explaining that that argument rested on an erroneous assumption that advice leading to a failure to settle is covered by the immunity:

1. The respondent argued that it would be anomalous to hold that the immunity does not extend to advice which leads to a disadvantageous compromise but does extend to negligent advice not to compromise which leads to a judicial decision less beneficial to the client than a rejected offer of compromise. It was argued that in each case the advice is intimately connected with the proceedings. ...
2. The assumption on which the respondent's argument depends, that is, that negligent advice not to settle is 'intimately connected' with the ensuing judicial decision of the court so as to attract the immunity, is not sound. The respondent cited no authority in support of this assumption. That is not surprising, given that it is difficult to envisage how advice not to settle a case could ever have any bearing on how the case would thereafter be conducted in court, much less how such advice could shape the judicial determination of the case.

74 Nettle J accepted that, on a fair reading of D'Orta, 'it may be said that the rationale of an advocate's immunity from suit does not extend to advice unless it is advice which "move[s] the case in court toward a judicial determination"', however, 'it does not follow that the immunity may not apply to advice to settle a proceeding or to advice not to settle a proceeding.'[98] Nettle J went on to say 'where a matter is settled out of court on terms providing for the court to make an order by consent that determines the rights and liabilities of the parties, the settlement plainly does move the litigation toward a determination by the court'.[99] Nettle J said that, where a client entered into a settlement which led to a consent order, 'in such a case, a claim that the advocate was negligent in advising the defendant to consent to the order would involve a collateral attack on the order'.[100] His Honour went on to consider advice to reject an offer to settle, saying that if accepted such advice would 'invariably affect the conduct of the case in court':

... a subsequent claim by the defendant that the advocate was negligent in advising against settlement would call into question whether the advocate had a reasonable basis for so advising. As the majority observe, in principle that might not necessitate establishing that the judgment was wrong. But it would necessitate re-litigation of issues determined at trial, including: the strength of the plaintiff's case; probably, the appropriate weight to be given to the evidence, taking into account considerations of credibility and reliability of witnesses; and the correct application of legal principle and authority. That is the kind of exercise which D'Orta was calculated to avoid and, in my view, it is not one which should now be sanctioned.[101]

75 The dissenting reasons of Gordon J in Attwells[102] were to similar effect as Nettle J's. Her Honour concluded:

... advice not to settle a proceeding which proceeds to judgment on the merits is covered by the immunity. In a case of that kind, there will have been a contested hearing in which the judge makes factual findings and applies the law to those facts. Adapting the language of the plurality in D'Orta [(2005) [2005] HCA 12; 223 CLR 1 at 26 [66]; see also at 27 [70].], the complaint of the client must be that 'a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged'. There has been a final quelling of the controversy. That challenge to finality cannot be permitted.

76 The assumption underpinning the so-called 'anomaly' considered by the majority in Attwells at [47]-[48] was squarely addressed by the High Court the following year in Kendirjian, where the facts involved lawyers' conduct leading to rejection of an offer of settlement of a personal injury claim that was subsequently alleged to have been negligent, after the plaintiff had obtained a less advantageous award of damages following trial.

77 In Kendirjian, both Nettle J and Gordon J accepted that the reasoning of the majority in Attwells determined the outcome.[103]

78 In Kendirjian, Edelman J (with whom Kiefel CJ, and Bell, Gageler, Keane, Nettle and Gordon JJ agreed)[104] explained that advice to either cease or continue litigation is not covered by the immunity (citations omitted):

1. Subsequent to the decisions of the primary judge and the Court of Appeal, this Court decided Attwells v Jackson Lalic Lawyers Pty Ltd. In Attwells, a majority of this Court held that the advocates' immunity from suit did not extend to negligent advice which leads to a compromise of litigation by agreement between the parties. As the majority joint judgment explained, by the same reasoning it is difficult to envisage how the immunity could ever extend to advice not to settle a case.

...

1. The joint reasons of the majority in Attwells explained the rationale for the immunity when declining to extend it to compromises. Since the immunity attaches by the 'participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power', it followed that the immunity did not extend to advice that leads to a settlement between the parties. Advice leading to a compromise of a dispute cannot lead to the possibility of collateral attack upon a non-existent exercise of judicial power to quell disputes. For this reason, the expression of the test concerning work done out of court which 'leads to a decision affecting the conduct of the case in court', or which is 'intimately connected with' work in court, is not engaged merely by 'any plausible historical connection' between an advocate's work and a client's loss. The test requires that the work bear upon the court's determination of the case. There must be a 'functional connection' between the work of the advocate and the determination of the case.
2. ... As the joint judgment concluded, the giving of advice either to cease or to continue litigating does not itself affect the judicial determination of a case.

Alleged error regarding 'intimate' or 'functional' connection (question 1 and grounds 1 and 2)

79 The amended notice of appeal describes the first question of law and grounds 1 and 2 in the following terms:

Question of law:

1. Was there an intimate functional connection between the work done by the Applicant out of court in advising Roland Pless to prepare the "proposed undertaking" but refraining from advising Roland Pless to proffer the "proposed undertaking" unless counsel thought it prudent to do so, and the manner in which counsel conducted the cause at the second hearing? {R [158], [225]}

The grounds relied upon are:

1. The Tribunal erred in finding there was no functional connection between the work done by the Applicant out of court in advising Roland Pless to prepare the "proposed undertaking" and refraining from advising Roland Pless to proffer the "proposed undertaking" to Peter Pless between the first and second hearings, and the manner in which counsel conducted the cause at the second hearing {R [158], [225]}

2. The Tribunal ought to have found there was an intimate functional connection between the work done by the Applicant out of court in advising Roland Pless to prepare the "proposed undertaking" and refraining to advise him to proffer the "proposed undertaking" unless counsel thought it prudent to do so, and the manner in which counsel conducted the cause at the second hearing. {R [158], [225]}.

80 Keogh & Co's submissions noted that there were three chief consequences that may befall a client as a result of their lawyers' alleged negligence, one of which was a 'wrong intermediate result' and another of which was 'wasted costs'.[105] Keogh & Co's submissions quoted remarks of members of the High Court in D'Orta[106] to the effect that seeking to recover wasted costs may cut across the principle of finality, because of the rule that costs follow the event: 'To challenge the costs order, therefore, will often (even, usually) involve a direct or indirect challenge to the outcome on which the disposition of costs depended'.

81 Keogh & Co submitted that D'Orta remains binding.[107] Keogh & Co rely on aspects of the judgment in D'Orta, and particularly the judgment of McHugh J, suggesting that advocates' immunity applies in a case like the present.

82 It is true that D'Orta was not overruled by Attwells or Kendirjian and that those judgments consider and build on what was said in D'Orta. Nevertheless, in my respectful view, the clarification of the principles given by the majority in Attwells, as further developed in Kendirjian, results in a significantly narrower scope of operation for the immunity.[108]

83 Keogh & Co's submissions also quoted a passage from Nettle J's judgment in Kendirjian.[109] In that passage, Nettle J expressed a view adhering to what he had said in his dissenting judgment in Attwells,[110] while at the same time accepting that the majority view in Attwells must determine the outcome in Kendirjian.[111] Gordon J agreed with Nettle J's position and remarks.[112]

84 The submissions also referred to words of Mason CJ in Giannarelli,[113] submitting that 'but for ... Keogh [& Co]'s omission to advise [Mr Pless Snr] to give an undertaking to compromise the [Summons application], there would have been a different result, as the judge would probably have accepted an undertaking ... saving [Mr Pless Snr] considerable costs.' In this way, Keogh & Co submitted that VCAT ought to have found that the claim in the VCAT proceeding 'involved an indirect challenge to the exercise of judicial power by Justice Riordan upon which the incurring of costs depended' and the costs were 'caused by the lawful directions of Justice Riordan at the First [Court] Hearing'.[114]

85 Keogh & Co's submissions relied on Donnellan v Woodland to like effect.[115] Keogh & Co's submissions correctly acknowledged[116] that in Kendirjian the High Court disapproved Donnellan v Woodland.[117] However Keogh & Co argued that the High Court's disapproval of the majority's judgment in Donnellan v Woodland (Beazley JA giving the lead judgment) was only on a limited basis and did not apply to a case involving a proposal for an undertaking to be given to the relevant court.

86 It may be accepted that the High Court's disapproval of Donnellan v Woodland was made by reference to the particular conclusion reached in that case, on its particular facts, and those facts did not involve advice about a proposed undertaking.

87 However, the disapproval has wider implications. The manner in which the disapproval of Donnellan v Woodland was expressed suggests the immunity will not be available to a case involving failure to advise, such as the present one.

88 In Kendirjian (at [25]), Edelman J summarised the majority reasoning in Woodland v Donnellan in the following terms (emphasis added, citations omitted):

In the Court of Appeal in Donnellan, Beazley JA (with whom Barrett and Hoeben JJA and Sackville AJA agreed) allowed the appeal on the ground that Mr Donnellan had not been negligent. Nevertheless, their Honours also considered that even if Mr Donnellan had been negligent he would have had the benefit of the immunity. The reason given by Beazley JA was that the immunity would attach if the giving of advice, or the omission to give advice, led to a decision to continue with the case, or meant that the case was continued. The immunity was said to apply because the omission or conduct had affected the conduct of the case in court by requiring the case to continue.

89 When Edelman J then disapproved Donnellan v Woodland, in Kendirjian,[118] this strongly suggests that an omission to give advice resulting in the continuation of a case does not amount to an effect on the conduct of the case so as to engage the immunity.

90 Following the clarifications provided by the High Court in Attwells and Kendirjian, it is clear that a causal connection between work out of court and the course or outcome of the litigation is insufficient to amount to the requisite 'intimate' or 'functional' connection. Advice to cease or to continue litigation is not covered, or at least not necessarily covered, by the immunity. More is needed.

91 Here, the failure found by VCAT was a failure to advise Mr Pless Snr, following the First Court Hearing on 14 October 2015:

(a) about the high likelihood of the Freezing Order being granted based on remarks made at the First Court Hearing by Riordan J; and

(b) that pursuing a consent order based on the Proposed Undertaking might save costs.

92 In my view, impugning Keogh & Co's failure to advise on these matters did not involve any collateral challenge to the finality of any judicial act of Riordan J at the First Court Hearing, or the Second Court Hearing, as that concept is now understood in light of Attwells and Kendirjian.

93 There is no basis whatsoever for any argument that the negligent failure to advise had an intimate or functional connection with, or impugned the finality of the outcome of, the First Court Hearing. The relevant failure to advise occurred after that hearing. Further, his Honour's orders on that occasion were confined to adjourning the matter to the Return Date. His Honour made no order that would have been inconsistent with Keogh & Co thereafter giving advice to Mr Pless Snr about offering an undertaking like the Proposed Undertaking. His Honour did not even formally order Mr Pless Snr to file and serve an affidavit, although this was discussed and was no doubt expected by his Honour. Even so, it would have been entirely open to Mr Pless Snr to seek to negotiate an agreed outcome of the application for the Freezing Order in the Summons application, limiting the required scope of the affidavit material.

94 At the Second Court Hearing, Riordan J made the Freezing Order against Mr Pless Snr. It was in slightly wider terms than the Proposed Undertaking, because it expressly prohibited acts diminishing the value of the Toorak Home. Keogh & Co argue that positing a counterfactual outcome based on Mr Pless Snr offering the Proposed Undertaking to his son, leading to a hypothetical undertaking to the Court as a basis for resolution of the application for the Freezing Order, impugns the finality principle, because this involves a collateral challenge to the making of the Freezing Order that was actually made.

95 If the applicable principles were confined to those explained by the High Court in D'Orta, and if the reasoning in Donnellan v Woodland governed the application of the principles, there would perhaps be some force in this submission. Those authorities are suggestive of the connection between allegedly negligent advice and continuation of litigation as being sufficient to engage the immunity.

96 However, having regard to what was said by the majority in Attwells, and what was then accepted unanimously in Kendirjian as a binding statement of the applicable principles, the submission must be rejected, as must that perspective of the authorities and the applicable principles.

97 The impugned conduct of Keogh & Co was no doubt 'historically related' to the loss Mr Pless Snr sustained from Riordan J's Freezing Order at the Second Court Hearing on 19 November 2015, but that is all. It was not 'intimately connected' or 'functionally connected' with the way Mr Pless Snr's case was conducted in court at the Second Court Hearing. Given that it was an omission to advise, it is hard to see how it could possibly be said to have had such a connection. I have considered the transcript of the Second Court Hearing carefully. Neither the Proposed Undertaking, nor any notion connected with it, played any role in the way the case on behalf of Mr Pless Snr was presented on that occasion. It may be accepted that Mr Pless Snr's legal representatives considered, and decided against, deploying the Proposed Undertaking at the First Court Hearing. But this does not mean that there was an intimate or functional connection with the way the case was presented at the Second Court Hearing. The omission to advise Mr Pless Snr about his settlement options had no bearing on his Honour's Freezing Order at the Second Court Hearing either, save in the basic causal sense found by VCAT that the order would probably not have been made if the advice had been given.

98 I do not think VCAT erred in its understanding or application of the relevant principles.

99 Of particular relevance to the present case, in Kendirjian, the High Court held that advocates' immunity did not extend to advice not to compromise a proceeding. There is no basis for distinguishing the present case.

100 Nor does the impugning of Keogh & Co's omission to advise on the potential compromise or settlement of the application for the Freezing Order and the potential use of the Proposed Undertaking constitute a collateral challenge to the judicial process that led to the Freezing Order. The fact that, in the course of its reasoning on causation, VCAT considered what would have happened if the advice had been given, does not amount to a collateral challenge. Nor does it matter that the Freezing Order might have been somewhat broader in scope than the Proposed Undertaking. In no way was it necessary or incidental to the claim of negligence to impugn the making of the Freezing Order, even if the Freezing Order had the potential to apply to a broader scope of conduct than the Proposed Undertaking.

101 Keogh & Co also submitted that, even if the Proposed Undertaking had been offered to Peter Pless before the Second Court Hearing, there would still have been an exercise of judicial power,[119] and this was said to distinguish this case from both the High Court's decision Attwells and the Court of Appeal's and County Court's decisions in Spralja, where proceedings 'were discontinued by consent orders and terms of settlement'.[120] Keogh & Co submitted that the 'exception' in Attwells and Kendirjian is 'confined to positive advice to make, accept, or reject an offer', and does not extend to offering to give a proposed undertaking to quell a controversy, because the acceptance of such an undertaking would involve an exercise of judicial power.[121]

102 This argument is elusive and unpersuasive. It is difficult to see how this counterfactual reasoning - positing an exercise of judicial power - can have any bearing on the required analysis. It does not establish any intimate or functional connection between the negligence and the way the case was actually presented. Keogh & Co's argument did not provide a compelling reason in logic as to why this feature of the counterfactual scenario in this case made any difference. I do not think it does.

103 I do not agree that Attwells and Kendirjian establish an 'exception', or that Spralja involved Judge Woodward applying an 'exception'. Keogh & Co's analysis begins with a flawed premise in this respect.

104 In my view, Attwells and Kendirjian clarify the principles underpinning the advocates' immunity and describe its limits. The immunity will not apply unless there is an intimate or functional connection between the impugned act or omission and the way the case was presented, bearing in turn on the way it was judicially determined.

105 In this sense, Attwells demonstrated that the intimate or functional connection may be lacking where negligent advice to settle leads to a settlement, even where that results in a judicial act: the making of consent orders, and Spralja is another illustration of such an outcome.

106 Kendirjian went further: it demonstrated that negligent advice not to settle, even though causing a case to continue to judicial determination, fell outside the proper scope of the immunity. That was because, although (no doubt) the case would not have continued to its judicial determination in the way it did but for the negligence, that did not suffice to engage the immunity.

107 Keogh & Co contended that none of Attwells, Kendirjian, or Spralja dealt with facts that were materially the same as the facts of this case.

108 So much may be accepted, in that none of those cases was a case of negligent omission to advise on making a proposal for potential settlement. They were all cases of the giving of negligent advice to settle (Attwells, Spralja) or not to settle (Kendirjian). But that does not mean the principles explained in them do not apply. Keogh & Co failed to advance a compelling reason for concluding that the negligent omission found by VCAT had an intimate or functional connection with the way counsel presented Mr Pless Snr's case at the Second Court Hearing, or that VCAT erred in finding that there was no such intimate or functional connection. Distilled to their essentials, all of Keogh & Co's submissions were to the effect that but for the failure to advise, there would have been an outcome different from the Freezing Order made by Riordan J. However, Kendirjian in particular makes it clear that a merely causal effect on the outcome is insufficient.

109 None of the features of the case relied upon by Keogh & Co distinguish this case from those authorities, and in particular from Kendirjian. If anything, it is even more obvious and clear that a negligent omission to advise on settlement options that causes the case to continue to determination will not engage the immunity.

110 For all these reasons, VCAT was correct to conclude that there was no intimate or functional connection between the failure of Keogh & Co to advise Mr Pless Snr on his settlement options following the First Court Hearing, and the way the case was presented and the judicial determination at the Second Court Hearing.

111 The topic of advocates' immunity is of significant legal complexity. I grant leave to appeal on question 1 and grounds 1 and 2 on the basis that they raised arguable points, but I dismiss the appeal on that question and those grounds. For the reasons explained in the paragraphs above, I am satisfied that question 1 and grounds 1 and 2 do not establish error on the part of VCAT.

Alleged error regarding Mr Pless Snr's 'obdurate instructions' (question 2 and grounds 3 and 4)

112 The amended notice of appeal set out question 2 and grounds 3 and 4 as follows:

Question of law:

2. Did the Tribunal err in extending the principles in Attwell and Kendirjian as expressed in Spralja* that advocates immunity has no application to an advocate's advice to settle a case (and conversely not to settle a case) to circumstances where a solicitor holds obdurate instructions to resist an interlocutory summons application, and the client has a prospect of success? {R [48]-[57], [59]-[61], [118], [158], [169], [206], [213], [222], [225]}.

The grounds relied upon are:

3. The Tribunal erred in finding that the principles in Attwell and Kendirjian expressed in Spralja* that advocates immunity has no application to an advocate's advice to settle a case (and conversely not to settle a case) extended to circumstances where a solicitor holds obdurate instructions to resist an interlocutory summons application and the client has a prospect of success. {R [48]-[57], [59]-[61], [118], [158], [169], [206], [222], [225]}.

4. The Tribunal ought to have held that the principles in Attwell and Kendirjian expressed in Spralja* do not extend to circumstances where a solicitor holds obdurate instructions to resist an interlocutory summons application and the client has a prospect of success.

113 In each of question 2 and grounds 3 and 4, there is a reference to 'Spralja*'. A corresponding note at the end of the amended notice of appeal states 'Spralja v Bullard [2017] VSCA 32 (Spralja); see Spralja v Bullard [2016] VCC 138 at [234], [261] (Judge Woodward, as his Honour then was)'.[122]

114 However, Spralja v Bullard & Ors (Ruling) [2016] VCC 138 was a decision of Judge Saccardo, reversed by the Court of Appeal in Spralja (CoA), and moreover only comprised 40 paragraphs. It appears that the reference to 'Spralja v Bullard [2016] VCC 138' in the amended notice of appeal must be intended to be a reference to Spralja v Bullard & Ors [2018] VCC 437, and the shorthand 'Spralja' is perhaps intended as a reference to both Spralja v Bullards [2017] VSCA 32 and Spralja v Bullard & Ors [2018] VCC 437.

115 The litigation involving Mr Spralja had a long history.[123] Mr Spralja was sued in 2007 in the County Court by a Mr Kelly for rectification and specific performance of an agreement for the sale by Mr Spralja to Mr Kelly of a fishing permit and shark catch quota. Mr Spralja counterclaimed for damages against Mr Kelly. In February 2008 terms of settlement of that proceeding were signed by Mr Spralja following a negotiation by Mr Spralja's lawyers on his behalf. Mr Spralja denied that the terms of settlement were binding, but in June 2008 the County Court made final orders enforcing them and bringing the first proceeding to a close. In 2014, Mr Spralja commenced a new County Court proceeding suing his former lawyers in relation to the settlement of the first County Court proceeding. He alleged that the settlement terms were not in his interests and that his lawyers had failed to ensure he understood the terms. In 2015, the lawyers applied for summary dismissal of Mr Spralja's claim on the basis of advocates' immunity. In February 2016, the County Court summarily dismissed Mr Spralja's claim on the basis of its understanding of the current state of the authorities, which indicated that advocates' immunity applied and barred the claim.[124]

116 Mr Spralja applied for leave to appeal to the Court of Appeal, which reversed the Country Court's 2016 summary dismissal decision on the basis of the law as clarified in the High Court's intervening decision in Attwells (delivered in May 2016), leaving the matter to continue in the County Court.[125]

117 On remittal, the County Court (Judge Woodward, as Woodward J then was) found that Mr Spralja's former lawyers were liable in negligence and that advocates' immunity did not apply.[126] His Honour also noted that the terms of settlement were not the result of the exercise of judicial power.[127]

118 The VCAT decision refers quite extensively to Spralja (2018),[128] and to the parties' respective submissions about the case made during the VCAT proceeding,[129] concluding that it provides 'a helpful framework for analysis of the issues in this proceeding'.[130] I discern no error arising from the manner in which VCAT relied on Spralja (2018).

119 The gist of Keogh & Co's argument in support of question 2 and grounds 3 and 4 was that the immunity applies, by way of an exception to Attwells, Kendirjian and Spralja (2018), in cases where the solicitor claiming immunity 'holds obdurate instructions to resist an interlocutory summons application and the client has a prospect of success'. Keogh & Co further submits that this verbal formula was a proper characterisation of the facts of this case, with the result that VCAT was bound to conclude, as a matter of law, that the immunity applied.

120 The argument is not persuasive. It does not identify any question or alleged error of law. I reject it.

121 Keogh & Co cites no authority for its argument that the legal test for application of advocates' immunity involves any criterion based on whether a client's instructions to contest litigation were obdurate or whether there was a prospect of success. The High Court in Attwells and Kendirjian did not identify any such criterion. Further, Keogh & Co does not explain how 'obdurate instructions' or reasonable prospects of success could convert a case into one where there is a risk to the principle of finality of judicial determinations, which is the unpinning principle justifying the defence of advocates' immunity. On its face, the argument runs counter to the insistence of the High Court in Attwells that the immunity is only to be recognised to the extent necessary to protect the exercise of judicial power against collateral attack. The suggested extension would go further than this and would thereby undermine 'the notion of equality before the law by enlarging the circumstances in which lawyers may be unaccountable to their clients'.[131]

122 If, as Keogh & Co contended, the facts of the case involved 'obdurate instructions' and a reasonable prospect of success, then those facts might have been probative on the merits of the claim of negligence against the solicitor. That was a matter for the finder of fact - VCAT - to decide. To argue that they go further, and that they justify extending the immunity as a matter of law, amounts to an attempt to assert a new legal rule constructed from the alleged facts of the case, unsupported by authority or principled reasoning.

123 For these reasons, question 2 and grounds 3 and 4 do not establish any basis for appeal from VCAT's orders. Leave to appeal on those matters will be refused.

Alleged sequencing error (question 3 and grounds 5 and 6)

124 The amended notice of appeal sets out question 3 and grounds 5 and 6 as follows:

Question of law:

3. Did the Tribunal err in addressing the merit of the Respondent's claim before considering the defence of advocates immunity? {R [48]-[57], [59]-[61], [118], [158], [169], [222], [225]}.

The grounds relied upon are:

5. The Tribunal erred by addressing the merit of the Respondent's claim before considering the defence of advocates immunity. {R [48]-[57], [59]-[61], [118], [158], [169], [222], [225]}.

6. The Tribunal ought to have considered the defence of advocates immunity before the merits of the Respondent's Claim.

125 Keogh & Co relied on authority[132] indicating that advocates' immunity should be considered before addressing the merits of a negligence claim to which the immunity might apply. The reason for this is that the rationale or purpose of the immunity is to prevent collateral challenge to judicial determinations. Addressing the merits of the negligence claim before considering the defence would therefore subvert that rationale.

126 As already explained, VCAT made no error in concluding that advocates' immunity did not apply to the claim of negligence (the First Alternative Claim) it upheld. It follows that any mistake it might have made in the sequencing of its reasons as to the claims of breach of retainer and the consideration of advocates' immunity made no difference to the outcome.

127 In any event, on my reading of the authority relied upon by Keogh & Co, it does not clearly establish that a sequencing matter of the kind complained of would be an error of law sufficient to lead to a grant of leave to appeal under s 148.

128 Keogh & Co also contended that VCAT ought to have considered the application of advocates' immunity to the Primary Claim, before addressing the merits of the Primary Claim.[133] As I understood the gravamen of this point, Keogh & Co contended that, had VCAT done so, it would have been satisfied that the Proposed Undertaking was prepared for potential deployment at the First Court Hearing to elicit an exercise of judicial power should the need arise and was intimately and functionally connected with the way Mr Pless Snr's case was presented on that occasion. Perhaps that may be so, but even if the immunity might have applied to the Primary Claim, that does not mean that it necessarily applied to the First Alternative Claim. The Proposed Undertaking was not somehow indelibly stamped with the immunity for all possible purposes. Keogh & Co's failure to revisit and advise on its potential use before the Return Date would still be outside the scope of the immunity, regardless of whether the Primary Claim might have been inside the immunity.

129 Question 3 and grounds 5 and 6 do not establish any basis for appeal from VCAT's orders. Leave to appeal on those matters will be refused.

(b) Client instructions grounds (questions 6 and 9 and grounds 11-12, and 17-18)

130 These questions and grounds concern two items of evidence containing instructions of Mr Pless Snr to Keogh & Co.

131 The first item of evidence is referred to in question 6, and grounds 11 and 12, of the amended notice of appeal.

132 Keogh & Co contended that VCAT failed to provide reasons as to whether it accepted the admission into evidence before it of a document containing instructions of Mr Pless Snr dated 22 October 2015, and that VCAT became confused between that document and another (an email dated 26 October 2015), leading it to fail to consider the 22 October 2015 document.

133 Keogh & Co further contended that VCAT failed to give genuine consideration to another document containing instructions, an email dated 4 November 2015. The second item of evidence is referred to in question 9, and grounds 17 and 18, of the amended notice of appeal.

134 Peter Pless submitted that neither was significant to the decision VCAT had to make.

135 Keogh & Co replied to the effect that the test for materiality is a low bar, and either of these items of evidence could have made a difference.

136 I have reviewed the material before VCAT and am satisfied that there were two separate written communications containing instructions from Mr Pless Snr on 22 October and 26 October 2015, respectively. It appears that VCAT did fail to make a ruling as to whether to accept the document dated 22 October 2015 into evidence and probably made a mistaken assumption that Keogh & Co's references to the document dated 22 October were intended to be references to the document dated 26 October.

137 However, whether these grounds have real prospects of success depends on an additional question. VCAT's failure to give reasons ruling whether it accepted the document dated 22 October into evidence, and VCAT's confusion between the documents dated 22 and 26 October, only led or amounted to an error of law or a failure to exercise jurisdiction if those documents were of significance to the decision to be made.

138 Before turning to the detailed submissions and the material before VCAT, it is useful to say something of the principles applicable to an error of law or jurisdictional error of the kind alleged under these questions and grounds.

139 Not all failures to consider evidence in making a decision are to be regarded as failures properly to exercise the decision-making function. Brennan J said in this regard in Peko-Wallsend:[134]

A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

140 In Nathanson v Minister for Home Affairs,[135] the High Court considered the test for materiality in a case involving a denial of procedural fairness. In its reply submissions, Keogh & Co submitted that this test should apply to the test for whether a failure to consider evidence is significant enough to constitute jurisdictional and legal error. In that context, at [35], Kiefel CJ and Keane and Gleeson JJ said that in many cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, reasonable conjecture from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different.

141 In my view, this is not the test that applies to assess a tribunal's failure to consider an item of evidence. A failure by a tribunal to take into account a piece of evidence is a failure of a very different character compared with a failure to give an applicant a chance to make submissions on a topic of relevance. The reference to a 'topic of relevance' is important. Not every failure to consider a piece of evidence will matter, provided that the topic to which the evidence relates has been adequately covered by some other evidence that was considered. As the analysis below makes clear, in this case there was ample evidence of the same substance and gravamen as the piece of evidence VCAT appears to have lost sight of.

142 As already mentioned, Keogh & Co argued that VCAT had failed to consider the instructions in the document dated 22 October 2015, putting that argument in three different ways.

143 The sixth question of law and grounds 11 and 12 were stated in this way:

Question of law:

6. Did the Tribunal:

a) err in mistaking Roland Pless's instructions of 22 October 2015 with his instructions of 26 October 2015; and

b) fail to provide adequate reasons as to whether the Tribunal had ruled on whether the written instructions of Mr Roland Pless dated 22 October 2015 were probative and tendered into evidence over the Respondent's objection to tender; and

c) constructively fail to exercise jurisdiction by failing to take Roland Pless's instructions of 22 October 2015 evidence into consideration? {R [96], fn 99, [131], [162]}

The grounds relied upon are:

11. The Tribunal erred in that the Tribunal:

a) mistook Roland Pless's instructions of 22 October 2015 for his instructions of 26 October 2015;

b) failed to provide adequate reasons as to whether the Tribunal had ruled on whether the written instructions of Roland Pless dated 22 October 2015 were tendered into evidence; and

c) constructively failed to exercise jurisdiction by failing to consider the probative evidence of Roland Pless's instructions dated 22 October 2015. {R [96], fn 99, [131], [162]}

12. The Tribunal ought to have:

a) provided written reasons ruling on whether the written instructions of Roland Pless dated 22 October 2015 were tendered into evidence, or excluded from evidence;

b) found the written instructions of Roland Pless dated 22 October 2015 could rationally affect the probability of the existence of fact in issue; and

c) given the written instructions of Roland Pless dated 22 October 2015 proper, genuine and realistic consideration.

144 During the VCAT proceeding, Keogh & Co contended that, on 22 October 2015, Mr Pless Snr gave a written communication to Keogh & Co marked 'Confidential - Att. Bill' and dated 22 October 2015, which stated as follows (all errors appearing in the original, bolding added for emphasis):[136]

My wife Carmen had no assets except Jewellery and Cloth, which I handed over to our Daughter and Son, when she died.

Whenever she bought anything over the 58 years or so, I had to provide her with the Funds, including a luxury apartment in Toorak for our Son, monies I had to pay into her Company account, plus properties for our Daughter I also provided Carmen with ½ day carers at a cost of $30. per hour.

Loved doing all that and I am glad I could.

At present I am also providing our daughter with a House worth in the vicinity of $6,000 rent per month and a Prius Motor Car.

Carmen was very close to her Invalid Sister in Switzerland and we had to travel there together almost each year. On my public Accountants recommendation, I opened an account in Switzerland for myself & Carmen and provided Carmen with a Credit Card also. (to minimize Taxation.) She used the funds to buy whatever and helped her family financially.

We travelled all over the world.

I made a deal with the tax department and brought the money back to Australia without penalty and invested it in term deposits.

My Public Accountant Joe Kalb highly recommended spreading the term deposits over several Companies; otherwise the Taxation bill would be "enormous." He said

So I did, but none of the said funds were owned by Carmen. She never had any money because anything she wanted, I provided.

She always had Credit cards and cash as much as she wanted and "surely used it."

Only once I had to provide her with a large amount when she insisted to buy our Son Peter a luxury apartment in Toorak.

Her other income was a regular amount of Pension from Switzerland. This she paid regularly to Peter and in addition, I had to pay his Land Tax every year.

I spoiled our son Peter over the years with millions. Ferrary Motor Cars, Computers and gave him a million dollar Business and homes

Rescued him from a dishwashing job in a Restaurant and took him into the business fitting Airconditioners and Radios to Motor Cars.

He stole the cars, left by Clients over night & drove them around Melbourne in a Wig & Beard.

The Police caught him and I had to bail him out.

He also stole my Car while I was overseas, interfered/butchered the Speedo and Cruise control.

Carmen became very ill around 2012 and nearly died.

She had to be rushed to a Mental Hospital in Richmond for 2 weeks, where a Doctor- psychiatrist luckily saved her Life.

She was never the same after that.

Watched TV all day and had the carers drive her to the beach to feed the birds. She fell several times & broke her Arm, had to live with it.

Peter Pless rushed her to Solicitors to make a Will (in his favour), like giving him the Luxury Apartment.

She was fully aware of his attitude towards his father and insisted in her Will, - he must have his sister's Manuela's support in whatever he is up to.

He came to our home, screaming at me like a lunatic, while his ailing mother was sitting and trembling next to me, showing me his fist on the way out.

Carmen did not deserve that.

145 Keogh & Co submitted in this Court[137] that the above document was adduced before VCAT without objection during Mr Ferguson's evidence in chief (referring to VCAT transcript pages 159 and 367), and then an objection 'during cross examination' (perhaps this was intended to be a reference to 're-examination') was upheld by VCAT on the basis that the question did not arise out of cross-examination (VCAT transcript page 424).

146 Later in the VCAT proceeding, Peter Pless (by then representing Mr Pless Snr) took objection to VCAT receiving and relying on the document, and he and Keogh & Co inserted brief submissions on that question into a table of 'objections and responses to amalgmated (sic) tender list' dated 18 August 2023, at item 4.[138]

147 Keogh & Co submitted in this Court[139] that VCAT failed to rule on that objection and also failed to consider the document, pointing to VCAT decision [131] and [162], which noted references in Keogh & Co's written submissions to a document dated 22 October 2015 but incorrectly attributed them to a differently dated, distinct document, being a later written communication of Mr Pless Snr, an email dated 26 October 2015 to Keogh & Co. In the email dated 26 October 2015, Mr Pless Snr wrote:[140]

Re hearing 19. November and meeting Wednesday.

Have the following suggestion:

At the beginning of the hearing, the Judge should be approached and be told:

My late wife Carmen was fully aware of the hostile attitude of our Son Peter Pless towards his Father Roland.

Consequently, when Peter dragged her to a solicitor to make a Will in his favor, she insisted to make such provision

That he can not act alone without his Sister's, Manuela's consent.

See Carmen's Will, Page 3./ Par./ 8.1

Consequently, if Manuela refuses to appear and testify ,we believe the matter should be dismissed and struck out.

If that does not work, we have to proof eventually that my wife never had any money, except what I gave her from time to time, because she didn't need any and didn't ask for any.

148 For the purposes of these reasons, I will assume that Keogh & Co is correct to assert that VCAT failed to reach a decision on whether the 22 October 2015 document should be admitted into the material before it, and for that reason failed to consider it.

149 This alone does not necessarily mean that VCAT erred in law and failed to exercise its decision-making function. I refer to my discussion of the applicable principles in paragraphs 138-141 above. In my view, whether a failure to consider a piece of evidence leads to that outcome depends on whether it resulted in VCAT having failed - in substance - to consider something of importance to the decision it had to make.

150 In the different but somewhat analogous context of a claim that a minister failed to consider a matter mentioned in 'representations' the minister was required to consider under the Migration Act 1958 (Cth), it was said in the High Court that 'the question of a failure to consider is not to be equated to a mere failure to consider a matter in or the form of the representations'.[141]

151 The issue is one of substance, not form. Whether or not a piece of evidence illustrating certain matters was missed, there will only be an operative failure to exercise the decision-making function if the matters themselves were not otherwise considered and if they were important to the decision to be made. To put that point another way: irrespective of whether VCAT lost sight of the 22 October 2015 document, can it be said that VCAT was ignorant of the gravamen or substance of what appeared in it?

152 I do not think there can be any reasonable suggestion made that VCAT committed a failure in this sense, for the reasons I will now set out.

153 In the table of objections and responses to tender of documents during the VCAT proceeding, Keogh & Co identified three bases of relevance for the document dated 22 October 2015.

154 The first was that it indirectly undermined, for two reasons, the Primary Claim (asserting that Keogh & Co had acted against Mr Pless Snr's alleged instructions to deploy the Proposed Undertaking):

The absence of any written instructions to compromise Peter's Application by way of an undertaking in the form of the Disputed Document as of 22/10/2015 could rationally affect the probability of a fact in issue: - whether any such unqualified instruction was given on 14 October 2015, or at all. The document is also relevant to whether there was any ambiguity in Roland's instructions requiring "clarification" as alleged.

155 Any failure to consider the document for this purpose cannot have been of any importance to the way VCAT determined the proceeding, because VCAT rejected the Primary Claim.

156 The second was that the document was relevant to causation. The argument was put this way by Keogh & Co in the table of objections and responses:

The Applicant's reliance on the Wrongs Act 1958 (Vic) requires the Applicant to prove on his alternative case, on the balance of probabilities, that but for the Respondent's alleged breach of duty to provide advice that a competent professional would have provided - Roland would have acted in a manner that avoided the loss incurred, and Roland would have instructed the Respondent to "settle" the Mareva /information obtaining proceeding by way of an undertaking not to dispose of 7A Robertson Road.

157 The third was that the document was relevant to the assessment of breach of duty of care. The argument was put this way by Keogh & Co in the table of objections and responses:

The document is relevant to the inquiry directed at "all the circumstances" at the time the Respondent omitted to give the advice that allegedly should have been given with reasonable care during the course of the Respondent's retainer after 14 October 2015: Spralja [250] - [256].

158 During the hearing in this Court, I asked counsel for Keogh & Co what he contended the significance of the written communication dated 22 October 2015 might be to the outcome before VCAT. Counsel for Keogh & Co explained to me that the alleged failure to consider the written communication on 22 October 2015 was significant to the outcome, because it could have affected VCAT's conclusions on causation.[142] That is, it was part of the evidence of Mr Pless Snr's attitude to his son and indicated he would be been unwilling to 'come around' to settling with him.

159 I disagree that failing to consider the 22 October 2015 document was significant in this regard. The failure to consider the 22 October 2015 document could have had no material effect on the conclusion reached by VCAT on causation. There was ample information of a similar nature before VCAT, which it clearly took into account.

160 To take the most obvious example, Mr Pless Snr also sent Keogh & Co another document, setting out similar substantive contents, on 2 November 2015. I have set it out below. In doing so I have added emphasis to passages that correlate with the relevant passages in the 22 October 2015 that show animus against Peter Pless on the topics of: Mr Pless Snr having spoiled Peter Pless with an apartment, a Ferrari and other things; Mr Pless Snr having rescued Peter Pless from a dishwashing job; Peter Pless having stolen a car from Mrs Pless Snr's business and driven it in a wig and beard; Peter Pless having been in trouble with police; Peter Pless having 'butchered' a car belonging to Mr Pless Snr; and Peter Pless having behaved badly toward Mrs Pless.

161 The 2 November 2015 document was as follows (emphasis added):[143]

Suggested interrogation: "Peter, Just say yes or No."

Did you wash dishes in a St Yarra restaurant in the 70ties ?

Did I rescue you from there and employed you in my business,

fitting and servicing Car Airconditioner & Car Radios ?

Did you have a key cut to the roller dors and stole new, luxury

Cars during the night, clients - car dealers left overnight, and

you drove them around the town, disguised with a beard & wig?

The Police caught you and charged you. Did I attend Court with

you and pleaded to give you a warning only, because you are a

"good Boy".?

Later on, while I was overseas, did you steal my car from my

garage, interfered butchered the Speedo and cruise control?

Costing me hibbs to repair

In the eighties when I sold the Prahran property and paid out the

mortgages, did you approach me and pleaded to lend you $1m to

buy a unique Ferrari Car in Germany?

Did I go with you to Germany in an attempt to buy it ? When we

could not get one I came back home. Did you contact me to say

you found one, but it costs $1.3 m?

I left my wife again and travelled to Germany with the extra

$300,000. and we bought the Car, that meant so much to you.

For $1,300,000 why do you think? did I do that ??

You used that Car to show off at your wedding, which we

arranged at high costs, in a plush Hotel with lots of family &

friends.

Did you drive the car to the country to show off your friends

there and damaged the undercarriage on the ruff roads ?

To the extend that a sure Japanese buyer refused to buy the

vehicle?

I also arrangd a lovely House for you in Toorak rent free, but

your wife walked out on you, shortly after and divorced you. ?

Is that true??

Did you have an other Ferari you gave me as part security ?

Did you sell it and fraudulently pocketed the proceeds.

About 2 years ago did I take you and your lady friend to a plush

restaurant, for my Birthday? You took several photos of my

grandson and when I said that his mother does not want this,

you went berserk and confiscated photos your Lady friend took

of us. You came to my home and screamed at me like a lunatic,

while your ailing Mother was sitting next to me, with a broken

arm. and trembling while you were showing me your fist on the

way out. True or not ?

I kept on demanding the photos, but you said "I will give them

to you in my own, good time", holding me to ransom.

You insulted your sister and her Son as much as me, see

enclosed hateful, nasty letter.

Did you drag your girlfriend away physically while she was

assisting me with my computer?

Did you refuse helping me with cleaning the roof about twice a

year when I became too old to do it.

After your Mum had recovered from a terrible illness, (she

almost died) you dragged her to a Solicitor to make a Will in

your favour, to leave you the luxury apartment in Toorak which

I had to buy you on demand, to please your Mother. Have been

paying the rates each year since.

In the eighties, did I hand you a prosperous, unique business, a

"gold mine" called "Prahran Air-conditioning Centre?" Did I

work with you for 12 months (free) to teach you how to operate

it?

When I once criticised you for sleeping till 9 or10 in the

mornings, while I even went out at night to see clients, did you

say "yes "f ing"around" ?

Did we take you overseas, introducing you to friends & relatives

and show you where I was born and went to school ?

All at my expense, offcourse.

Did I buy you several Computers? Over the years.

162 The significance of the 22 October 2015 document was that it showed Mr Pless Snr's animosity towards Peter Pless in a communication to Keogh & Co between the First Court Hearing and the Second Court Hearing, and gave various examples. The same substantive content appeared in the 2 November 2015 document, along with an even greater range of examples.

163 It cannot be suggested that VCAT ignored the 2 November 2015 document, or the topic and purpose to which it tended. On the contrary, it is clear that VCAT considered it, expressly referring to it in two places in the VCAT decision: [131] and [162]. In [131], VCAT noted that Keogh & Co described this document as 'critical context evidence' on causation and the question of whether Mr Pless Snr would have instructed Keogh & Co to offer the Proposed Undertaking, and in [162] VCAT noted a list of several pieces of evidence relied upon by Keogh & Co on that issue, including the 2 November 2015 document.

164 It is clear that VCAT took the 2 November 2015 document into account. Its conclusions on causation were, I infer, informed by its contents and reached in spite of its contents.

165 For these reasons, Keogh & Co's contentions based on the failure of VCAT to take into account the 22 October 2015 document as a specific, separate piece of evidence on the question of causation, have no prospects of success.

166 It does not appear that, in the proceeding in this Court, Keogh & Co placed any reliance on its submission before VCAT that the 22 October 2015 document was relevant to VCAT's assessment of breach. However, I will address that point briefly. For the reasons already given in the preceding paragraphs in this section, the substance or gravamen of the 22 October 2015 document was reproduced in the 2 November 2015 document, which was known to VCAT and noted in the VCAT decision. There is no specific reference to either the 22 October 2015 or 2 November 2015 document in the passage of the VCAT decision dealing with breach, but that does not bespeak error. Neither of these pieces of evidence was so important to the assessment of breach that they merited, or required, separate treatment in the course of VCAT setting down its reasons on breach of duty of care.

167 For these reasons, I am not satisfied that any failure by VCAT to consider the 22 October 2015 document was of any significance. Leave to appeal on this ground will be refused.

168 The second argument in the nature of an alleged failure by VCAT to take into consideration evidence of the instructions of Mr Pless Snr was of a different quality. Keogh & Co did not submit that VCAT had failed to take into account any particular document on this occasion. Rather, in a document dated 4 November 2015 which VCAT had clearly considered, Keogh & Co contended that VCAT had failed to give proper consideration to an element of that document, which noted 'costs irrelevant'.

169 Keogh & Co's case on the second piece of evidence, being instructions from Mr Pless Snr on 4 November 2015 to the effect: 'costs irrelevant', is also very weak. The ninth question of law and grounds 17 and 18 were articulated like this:

Question of law:

9. Did the Tribunal fail to give proper, genuine, and realistic consideration to Roland's written "Costs irrelevant" instructions dated 4 November 2015? {R [162]}.

The grounds relied upon are:

17. The Tribunal erred in failing to give proper, genuine, and realistic consideration to Roland Pless's written "Costs irrelevant" instructions dated 4 November 2015. {R [162]}.

18. If the Tribunal had given proper, genuine, and realistic consideration to Roland Pless's written instructions dated 4 November 2015 the Tribunal would have found that Roland Pless instructed the Applicant that "costs [were] irrelevant" to him in defending interlocutory summons application.

170 Keogh & Co's submissions did not specifically identify the document dated 4 November 2015 that was said to contain the 'costs irrelevant' instructions. I located the following email in the court book, which I will assume is the document in question:[144]

Date: 4/11/2015 9:31:29 PM

To: Jim Keogh; Megan Clark

Subject: Re: FW: FW: Attached Image

I would recommend that we employ a QC again. Costs irrelevant. I shall attend Court myself, should the Judge or lawyers wish to ask me questions.

It concerns me also that I did not see Carmens will until I demanded it, several days after she died. And that P. Dragged her to make the will in his favor, without my knowing.

That P. Is lazy and believes to get easy into money without working for it, like I did.

I think we should get all together to talk about it all, ASAP.

171 VCAT expressly noted Keogh & Co's reliance on the 'costs irrelevant' instruction given by Mr Pless Snr on 4 November 2015 in its reasons at [162]. It cannot reasonably be argued that VCAT ignored it. Nor, contrary to Keogh & Co's submissions before me, can it be inferred that VCAT failed to give it real consideration. Keogh & Co's submission that VCAT did not meaningfully consider it is mere assertion. These words, appearing in the context of the email, were in no way so significant that VCAT was required to set out specific reasoning about them in its reasons for decision. It was a brief and incidental phrase in the course of an email that was mainly directed to other topics, and in particular to Mr Pless Snr's instruction about retaining a QC.

172 Read as a whole, the email of 4 November 2015 could not reasonably be regarded as a literal instruction authorising unlimited expenditure. Further, there was information before VCAT suggesting that Mr Pless Snr was not actually indifferent to the 'precious time' being spent on the matter.[145]

173 Courts performing reviews of administrative tribunals must 'avoid overly pernickety examination of the reasons',[146] or 'over-zealous' scrutiny.[147] VCAT was under no obligation to prepare reasons that tracked and attributed weight to each and every item in the quite voluminous evidence before it which might be said to have shed light on Mr Pless Snr's attitude to costs.

174 In asserting that VCAT's omission to provide more reasons on this phrase appearing in an email before it bespeaks error, Keogh & Co's submissions were attempting to set a wholly unrealistic standard for the provision of reasons for decision by VCAT.

175 For all these reasons, questions 6 and 9 and grounds 11, 12, 17 and 18 have no real prospects of success.

(c) Grounds relating to the scope and breach of the standard of care (questions 7, 8 and 11 and grounds 13-16, 21 and 22)

176 These grounds relate to the scope and breach of the duty of care, as found by VCAT. In this regard, as already noted, VCAT found that the reasonably competent solicitor would have identified the risk that a freezing order would be imposed on the Return Date, and thus would have advised Mr Pless Snr following the First Court Hearing as to the risk of an adverse outcome, the costs involved, and the potential course of entering settlement negotiations with Peter Pless about his freezing order application, starting by proffering the Proposed Undertaking.

177 The seventh and eighth questions of law, and grounds 13-16, related to the scope of the standard of care. They were stated in this way in the amended notice of appeal:

Question of law:

7. Did the Tribunal mis delineate the scope of the standard of care to be applied by any reasonable competent lawyer to Mr Roland Pless as extending to advising him to proffer the "proposed undertaking" to Mr Peter Pless between the first and second court hearings in circumstance where the Applicant's obdurate instructions were to contest Peter Pless's interlocutory summons application and Mr Roland Pless had a prospect of success ? {R [203]-[211]}

8. Did the Tribunal mis delineate the scope of the standard of care to be applied by any reasonable competent lawyer in advising Roland Pless as to the probability of resisting Peter Pless's interlocutory summons application as referrable to a standalone enquiry as to whether there was a "prima facie case" and "serious question to be tried" {R [50], [51], [200], [206], [207], [210], [211]}.

The grounds relied upon are:

13. The Tribunal erred in delineating the scope of the standard of care to be applied by any reasonable competent lawyer to Mr Roland Pless as extending to advising him to proffer the "proposed undertaking" to Mr Peter Pless between the first and second court hearings in circumstance where the Applicant's obdurate instructions were to contest Peter Pless's interlocutory summons application and he had a prospect of success. {R [203]-[211]}

14. The Tribunal ought to have delineated the scope of the standard of care to be applied by any reasonable competent lawyer to Mr Roland Pless as not extending to advising him to proffer the "proposed undertaking" to Mr Peter Pless between the first and second court hearings in circumstances where the Applicant's obdurate instructions were to contest Peter Pless's interlocutory summons application and he had a prospect of success.

15. The Tribunal erred in delineating the scope of the standard of care to be applied by any reasonable competent lawyer in advising Roland Pless as to the probability of resisting Peter Pless's interlocutory Summons application was referrable to a standalone enquiry as to whether there was a "prima facie case" and "serious question to be tried". {R [50] -[51], [200]-[211]}

16. The Tribunal ought to have delineated the scope of the standard of care to be applied by any reasonable competent lawyer in advising Roland Pless as to the probability of resisting Peter Pless's interlocutory Summons application was referrable to whether Peter Pless had a prima facie case, and the balance of convenience.

178 The eleventh question of law and grounds 21 and 22 related to breach of duty, and were stated in these terms:

Question of law:

11. Did the Tribunal err in finding that the advice provided in the Applicant's email of 14 October 2015 was superficial and breached the standard of care required of an ordinary competent solicitor by failing to ensure that Roland Pless could give updated instructions on an informed basis? (R [81], [114], [154], [201], [207])

The grounds relied upon are:

21. The Tribunal erred in finding that the advice provided in the Applicant's email of 14 October 2015 was superficial and breached the standard of care of an ordinary competent solicitor by failing to ensure that Roland Pless could give updated instructions on an informed basis (R [81], [114], [154], [201], [207]).

22. The Tribunal ought to have found that the advice provided in the Applicant's email of 14 October 2015 sufficiently discharged the standard of care required of an ordinary competent solicitor to ensure that Roland Pless could give updated instructions on an informed basis.

179 As can be seen from the above extracts from the amended notice of appeal, Keogh & Co's challenge to VCAT's findings on duty and breach focussed on certain features of the factual circumstances: that Mr Pless Snr gave 'obdurate' instructions, that there were 'reasonable prospects of success' and that VCAT did not refer to the 'balance of convenience' element of the freezing order application before the Supreme Court. Keogh & Co also challenged VCAT's conclusion that Mr Ferguson's email report on 14 October 2015 was superficial.

180 Purportedly in support of the grounds of the amended notice of appeal relating to scope of duty, Keogh & Co also made a number of submissions that did not seem to adhere to the confines of those grounds. I will address those that were most prominent.

181 Keogh & Co submitted that VCAT erred in drawing on or 'transplanting' the broad scope of the duty of care recognised in Spralja and Mijatovic in the present case, arguing that the facts were distinguishable.[148] Keogh & Co also pointed out that the scope of a duty of care was to be determined by the facts of each case, determined prospectively and not by hindsight.

182 I accept that the scope and content of a duty of care is a matter to be determined by the trier of fact using a prospective analysis referable to the circumstances of the particular case at the time of the alleged breach, and that the use of hindsight would be impermissible. A determination of the standard of care required by a professional is determined prospectively rather than retrospectively.[149] Keogh & Co also submitted that the expected standard of care is not that of a particularly conscientious professional but that of a reasonably competent professional, with regard to normal professional standards adopted in the profession,[150] and so much may also be accepted.[151]

183 The relevant passage of the VCAT decision is set out above and consists of paragraphs 200 to 211. While it is true that VCAT drew on aspects of the reasoning of Judge Woodward in Spralja (2018) and aspects of the reasoning of Hasluck J in Mijatovic, there was no error on the part of VCAT in doing so. VCAT did not 'transplant' the findings made in those cases to the evaluative and factual task before it in this case. It is evident that VCAT understood that the duty of due care and skill imposed by the retainer required the lawyer to act to a standard of reasonable competence. The remaining analysis was a matter of factual evaluation for VCAT. It was permissible for VCAT to refer and gain some guidance from what the courts had said in broadly related circumstances. In referring to the reasoning of Judge Woodward in Spralja and aspects of the reasoning of Hasluck J in Mijatovic, VCAT was doing no more than that.

184 I reject Keogh & Co's submission that VCAT adopted a hindsight approach in finding that the standard of reasonable competence was breached in the circumstances of this case. I have considered the relevant passage of reasoning and do not agree with that characterisation of how VCAT approached the matter. VCAT's characterisation of the email report sent by Mr Ferguson on behalf of Keogh & Co on 14 October 2015 as superficial and as failing to draw relevant risks to Mr Pless Snr's attention was open to it. I have also read and considered the transcripts of the hearings in the Practice Court before Riordan J. It was clearly open for VCAT to find that Riordan J's remarks at the First Court Hearing presented obvious risks of failure to Mr Pless Snr in resisting a freezing order in relation to the Toorak Property. VCAT's finding that those risks and the costs attributable to them were reasonably foreseeable were open to be made, using a prospective assessment of the facts. I am not persuaded that VCAT adopted an impermissible hindsight-based approach.

185 In its submissions, Keogh & Co also sought to impugn VCAT's findings on breach by asserting that there was a 'temporal elasticity' in the reasoning, meaning that VCAT had not said precisely whether the breach occurred when Mr Ferguson sent his report of the First Court Hearing on 14 October 2015, or some time later (and if so, when).[152] This attempt was unpersuasive, and I reject it.

186 VCAT expressly addressed the temporal element of the breach. VCAT found that the breach occurred because Keogh & Co did not either provide such advice in its report straight after the First Court Hearing or in a meeting 'soon thereafter',[153] and VCAT also noted that 'there was time to seek [Peter] Pless' agreement to consent orders along the lines of the Proposed Undertaking in lieu of the Court Freezing Order'.[154]

187 This was sufficient to discharge VCAT's obligations to set out its reasons for decision, and it disclosed a probative and rational basis for its conclusion on breach. Keogh & Co argued in this Court that giving advice about the risks would have been premature on 14 October 2015 and, further, that after work began on the defence and responsive affidavit material it would not have been reasonable to give such advice without counsel's involvement. These and other criticisms made in the course of Keogh & Co's submissions about the findings on breach[155] were all, in my view, impermissible attempts to challenge the merits of VCAT's factual evaluation that the failure to give the advice was a breach of the standard expected of a reasonably competent solicitor.

188 As already noted, the grounds in the amended notice of appeal include question 7 and grounds 13 and 14, which essentially contend that (as Keogh & Co puts it) Mr Pless Snr gave 'obdurate instructions' to contest Peter Pless's Summons application, and there was a 'prospect of success' in resisting that application, and that in these circumstances VCAT erred in law in some way in its conclusions as to the scope of the duty of care.

189 However, these matters do not raise questions of law as to VCAT's approach. They are essentially contentions that VCAT erred in its evaluation of whether, in all the relevant circumstances of the case, Keogh & Co breached its duty of care. The question of whether a duty of care existed was a question of law,[156] but the question of whether it was breached was a question of fact.[157] There was no doubt that a duty of care applied here. The relevant controversial question was whether it had been breached. This was a matter of factual evaluation for VCAT. In an attempt to argue that the question of scope and content of a duty of care was a question of law, the submissions on behalf of Keogh & Co quoted various remarks drawn from the authorities.[158] In my view, when those references are considered in context, they do not support Keogh & Co's contention.

190 Question 8 and grounds 15 and 16, or Keogh & Co's submissions in support of them, could perhaps be characterised as raising a question of whether VCAT misunderstood the legal principles applying to the Supreme Court's determination as to whether to grant a freezing order, and that this had infected VCAT's findings on breach. In this regard, Keogh & Co submitted that VCAT had treated the principles applicable to the Court's adjudication of freezing orders as being limited to whether the applicant had demonstrated a strong prima facie case, to the exclusion of the balance of convenience and danger of dissipation of assets.[159]

191 The amended notice of appeal alludes to this broad topic, but not in the manner I understood from Keogh & Co's submissions: see question 8 and grounds 15 and 16, extracted above. It is difficult to discern what error those parts of the amended notice of appeal impute to VCAT. They seem to say both that VCAT erred by delineating, and ought to have delineated the scope of the relevant standard of care, by reference to the same matter: that is, by consideration of whether Peter Pless had a prima facie case, and the balance of convenience.

192 On a fair reading of VCAT's reasons, no such imputation of legal error can be made. The fact that VCAT gave specific attention to what Riordan J had said about the prima facie case at the First Court Hearing does not mean that VCAT was ignorant of the principles applicable to adjudication of freezing order applications. VCAT was not itself setting out to write a judgment on the granting of a freezing order. It was merely referring to aspects of the First Court Hearing that should have given a competent solicitor reason to raise obvious risks with the client. Again, Keogh & Co's contentions are based on an unrealistic and overly elaborate standard for the preparation of reasons for decision of VCAT.

193 In any event, there is no suggestion by Keogh & Co that any argument that the balance of convenience was against the grant of a freezing order was made on behalf of Mr Pless Snr at the First Court Hearing or was otherwise in contemplation or instructed by Mr Pless Snr at the time, so the omission of any express reference by VCAT to this matter is readily understandable, and immaterial.

194 Question 11 and grounds 21 and 23 relate to VCAT's findings on breach.

195 In his written reply and oral submissions, counsel for Keogh & Co sought to characterise VCAT's conclusions on breach as raising questions of law, on the basis of an assertion that these aspects of the decision related to the scope of the duty of care owed by Keogh & Co to Mr Pless Snr, and that the scope of the duty of care and the question of breach are questions of law.[160] There were two such arguments.

196 First, counsel for Keogh & Co submitted that remarks of Gummow J in Vairy v Wyong Shire Counsel[161] and of Kirby J in Romeo v Conservation Commission (NT)[162] supported this submission.

197 I do not read the relevant remarks as providing any such support. Rather, they stand for the proposition that the question of whether a duty of care exists is one of law, and there are then questions of fact for the trier of fact to determine both as to what the duty required in the circumstances of the case, and whether the duty was breached.

198 Second, Keogh & Co pointed to s 44 of the Wrongs Act. That provision applies pt X of the Act to any claim for damages resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute, or otherwise. Amongst other provisions, this has the effect that s 51 of the Wrongs Act applied on the question of causation. However, it was not clear how it was put that s 44, or some other provision such as s 48 or s 51 for that matter, could be said to convert VCAT's evaluation of the content of the duty of care, and its breach, or its assessment of causation, into questions of law. Keogh & Co's submissions were to the effect that these matters amounted to questions of law under the Wrongs Act because 'the question whether facts fully found fall within the provision of a statutory enactment properly construed is a question of law'.[163]

199 This argument lacked requisite precision. In any event, I will now address it, albeit briefly, to the extent that it might have been advanced in relation to duty and breach. I will then return to it in the context of the causation grounds later in these reasons.

200 The proposition that 'the question whether facts fully found fall within the provision of a statutory enactment properly construed is a question of law' is qualified and subject to various exceptions, which I relevantly address in the context of the causation grounds. The proposition does not apply here in the manner Keogh & Co contended it does. The fact that VCAT was evaluating whether negligence occurred subject to pt X of the Wrongs Act did not mean that its findings on breach or causation were findings on questions of law. They were not: they were evaluative factual findings.

201 For all these reasons, Keogh & Co's challenges to VCAT's findings on breach in both the amended notice of appeal and its submissions impermissibly attempted to impugn evaluative findings of fact and to characterise that exercise as a challenge based on a question of law.

202 Questions 7, 8 and 11 and grounds 13 to 16, 21 and 22 have no real prospects of success.

(d) Causation grounds (questions 4, 5 and 10 and grounds 7-10, 19 and 20)

203 As already mentioned, VCAT found that Keogh & Co did not act to the standard of a reasonably competent solicitor in failing to advise Mr Pless Snr as to the risks of resisting the freezing order on the Return Date and the potential for seeking Peter Pless's agreement to consent orders along the lines of the Proposed Undertaking signed on 13 October 2015 in lieu of a contested hearing on the Return Date, and this was a breach of the retainer.[164] In the earlier sections of these reasons, I have concluded that Keogh & Co's proposed appeal grounds in relation to that chain of reasoning and those findings have no real prospects of success.

204 Building on its conclusion as to breach, VCAT went on to find that the breach caused loss to Mr Pless Snr in the amount of $37,500 of his costs.[165] Keogh & Co contended that VCAT erred in law in concluding that the breach caused any loss.

205 Keogh & Co advanced two broad contentions seeking to impugn VCAT's reasoning on causation.

206 First, Keogh & Co challenged the conclusion reached by VCAT that Mr Pless Snr 'would have come round and agreed to offer the Proposed Undertaking to [Peter] Pless with a view to settling the Summons application'.[166] Keogh & Co's questions of law and grounds of appeal set out three bases for this challenge:

(a) First, Keogh & Co argues that this finding was not open to VCAT and VCAT's conclusion was mere speculation.

(b) Second, Keogh & Co argues that VCAT's conclusion was 'seriously irrational', or in other words beyond the standard of legal reasonableness explained in the High Court's decision in Minister for Immigration and Citizenship v Li.

(c) Third, Keogh & Co contends that VCAT should have concluded that there was 'no probative evidence' that Mr Pless Snr would have instructed Keogh & Co to offer the Proposed Undertaking to Peter Pless.

207 The second broad way in which these grounds are argued relies on the 'but for' test as enshrined in s 51(1)(a) of the Wrongs Act. As I understand Keogh & Co's argument in this respect, it contends that VCAT erred in finding that Keogh & Co's failure to advise as to the risks of resisting the Summons application and the potential for offering the Proposed Undertaking caused loss in the form of the costs of resisting the freezing order application. Keogh & Co contends that VCAT ought to have found that those costs were not incurred 'but for' the failure to give advice.

208 The breach of retainer found by VCAT was one of omission. VCAT had to consider whether the omission caused loss.

209 VCAT placed no reliance on s 51(2) of the Wrongs Act. The case therefore had to meet the requirements of s 51(1), paragraph (a) of which in substance imposed a 'but for' test. Logically, that entailed consideration of what would have occurred but for the omission to give the advice. In other words, VCAT had to reach a view about what the counterfactual scenario would have been, if the advice had been given.

210 Counterfactuals are a common feature of findings of causation of loss in causes of action for compensatory damages.[167] They are, of their nature, findings about what would have happened, and not what did happen. In this sense, they involve a hypothetical, the inquiry about which 'necessarily proceeds by drawing inferences from known facts to find the counterfactual position on the balance of probabilities'.[168]

211 Keogh & Co rightly pointed out that a finding on causation had to be made on the balance of probabilities, and that '[t]he balance of probabilities standard of proof allows for uncertainties to remain, but the fact to be proved on the balance is that reasonable care would have made a difference, not that it might have'.[169] The finder of fact had to be satisfied that the evidence proved the outcome of the counterfactual on the balance of probabilities, not as a matter of mere speculation.[170]

212 In this Court, Keogh & Co submitted[171] that VCAT ought to have found that 'the probability of the counterfactual ... was so tenuous as to be regarded as negligible or speculative'.[172]

213 Keogh & Co placed heavy reliance on the principles governing the drawing of inferences by judges in civil litigation, as distilled by the Court of Appeal in Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (Masters Home Improvement):[173]

The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.[174]

214 Keogh & Co also submitted that VCAT was not empowered to make a factual finding on the basis of selecting between guesses, relying on Jones v Dunkel where Dixon CJ said a court is not authorised:[175]

... to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

215 Keogh & Co submitted that although it is true that a claimant 'need only prove circumstances raising a more probable inference in favour of what is alleged', it also noted that this 'must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture' (emphasis added).[176]

216 I agree that VCAT was not empowered to make its findings on the basis of mere conjecture, or by selecting between mere guesses. Doing so would be to act without a probative basis and to make a finding that was not open, and might also involve reasoning contrary to the standard of legal reasonableness recognised in Minister for Immigration and Citizenship v Li.[177]

217 However, I do not agree that a choice made by VCAT between 'conflicting inferences of equal degree of probability' means that VCAT's conclusion can be described as a mere matter of conjecture or speculation. In my view, provided each of the competing inferences was legally open on probative material, it was a matter for VCAT to choose the inference it regarded as the most likely inference, and its choice is not open to review on an appeal on a question of law.

218 To that extent, the principles invoked by Keogh & Co were not supportive of its proposed appeal in this Court. Those principles describe the process of appropriate inferential fact finding in civil litigation, but not all of them give rise to questions of law that the Court can adjudicate on an appeal under s 148(1) of the VCAT Act.

219 In particular, any disagreement the Court may have with a primary tribunal's choice between competing inferences of equal likelihood would amount to a finding of mere error of fact. An error of that kind might be pursued by way of rehearing for the correction of general error (such as is the common form of appeal from an intermediate to superior court),[178] but would be of no avail to Keogh & Co here.

220 It must be firmly kept in mind that the function of the Court on an appeal under s 148 is akin to its function in conducting judicial review for error of law or jurisdictional error.[179] As was observed in another context,[180] an appeal on a question of law under s 148 is not intended to 'open the door to an appeal by way of rehearing'. VCAT's role is to provide an avenue for the expeditious and cost-effective resolution of disputes.[181] It is not bound by the rules of evidence and the default position is that costs orders will not be available. The choice of the legislature to confer a conclusive fact-finding function on VCAT and to limit appeals to this Court to questions of law is consistent with the overall purposes of the VCAT Act and must be respected. In my view, Keogh & Co's contentions on causation in effect invited the Court to circumvent the limitations the legislature has placed on its role and to conduct a rehearing for review of factual error.

221 The real questions arising from Keogh & Co's causation grounds were limited to the following: was there a probative basis for the impugned elements of VCAT's conclusion that causation was made out, and did VCAT's reasoning in that regard meet the standard of legal reasonableness?

Alleged errors regarding first element of causation (if the advice had been given, Mr Pless Snr would have entered into negotiation for a consent order) - questions 4 and 5 and grounds 7-‍10

222 The amended notice of appeal expressed the fourth question of law and grounds 7 and 8 in this way, referring to the VCAT decision as 'R' (for 'Reasons'):

Question of law:

4. Was Tribunal's finding that Roland Pless "would have come around" and instructed to proffer the "proposed undertaking" to settle Peter Pless's interlocutory summons application not reasonably open on the facts? {R [48]-‍[57], [70] [178], [181], [182], [187], [206], [213]}.

The grounds relied upon are:

7. The Tribunal erred in finding that Roland Pless "would have come around" and instructed to proffer the "proposed undertaking to settle Peter Pless's interlocutory summons application was reasonably open on the facts. {R [48]-‍[57], [70], [173]-[187], [206], [201]-[213]}.

8. The Tribunal ought to have found that the proposition that Roland Pless "would have come around" and instructed to proffer the "proposed undertaking" to settle Peter Pless's interlocutory summons application was speculation, supposition, and conjecture and not reasonably open on the facts.

223 Keogh & Co submitted that errors of law arose in the course of VCAT's findings of causation.

224 Keogh & Co relied on Lederberger and Scheiner v Mediterranean Olives Financial Pty Ltd[182] in support of its submission that the test of causation set out in s 51 of the Wrongs Act applies here by reason of s 44 of the Wrongs Act. I accept this submission. However, that the test to be applied by VCAT has a statutory foundation does not necessarily entail any questions of law, for the reasons I now explain.

225 As already noted, Keogh & Co relied on the principle identified in such cases as Pozzolanic[183] (Neaves, French and Cooper JJ): 'the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law'.[184]

226 However, as noted immediately afterwards by their Honours in Pozzolanic, this principle is subject to qualification: 'This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact'.[185]

227 The Full Court of the Federal Court in Pozzolanic relied on Mason J's reasons in Hope v Bathurst City Council.[186] In that case, also, Mason J qualified the principle, stating 'special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words.'[187]

228 The qualifications and exceptions that apply to the principle were more recently examined by the High Court in Vetter v Lake Macquarie City Council.[188] In the course of this examination, Gleeson CJ, Gummow and Callinan JJ referred to a passage in the decision of Mason JA (as his Honour then was) sitting in the New South Wales Court of Appeal in Williams v Bill Williams Pty Ltd[189] for the proposition that where the task is to apply a 'statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views... the correct conclusion is a question of fact'.[190]

229 These qualifications to the general principle were not addressed by Keogh & Co. They are fatal to Keogh & Co's proposed grounds of appeal. They describe precisely what VCAT was doing in making its findings on causation in this case. VCAT was conducting an evaluative task of fact-finding.

230 Keogh & Co relied on Firth v Brooks,[191] in which Balmford J determined an appeal from orders of VCAT on a question of law.[192] In that case, Balmford J referred[193] to the principle in Nominal Defendant v Owens,[194] drawn from Luxton v Vines,[195] to the effect that a finding could not be supported if the circumstances gave rise to nothing but 'conflicting conjectures of equal degrees of probability'.[196] In that case, Balmford J concluded that a key finding of VCAT did not meet that requirement and that VCAT had merely chosen between conflicting conjectures which would not be elevated to the status of inferences.[197] Her Honour also found that VCAT, acting reasonably, could not have reached the conclusion it did on the evidence it had before it.[198]

231 Although Balmford J referred to the principles drawn from Luxton v Vines[199] - principles later redistilled by the Court of Appeal in Masters Home Improvement, the ratio decidendi of her Honour's decision did not involve an application of all of those principles. The decision only rested on the proposition that VCAT's finding had been based on conjecture and was not legally open to it, acting reasonably. I do not take Firth v Brooks to support the proposition that all the principles of inferential fact finding articulated in Luxton v Vines and Masters Home Improvement raise questions of law for the purposes of an appeal under s 148 of the VCAT Act. Some of them do, and others do not. A choice between available inferences does not.

232 Keogh & Co also relied on the decisions of this Court in Tsikos.[200] Keogh & Co seemed to be asserting that these decisions demonstrate that a failure by VCAT to adhere to the principles governing inferential fact-finding identified in Masters Home Improvement is a question of law for the purposes of an appeal under s 148 of the VCAT Act.[201] However, on close examination of the decisions, they do no such thing. At first instance, Richards J held that VCAT, in dismissing a discrimination claim, had adopted an incorrect, and impermissibly narrow, test for discrimination. The employer argued that a finding made by VCAT that there was no discrimination, and the absence of evidence from which it would be open to make a finding of discrimination, precluded remitter. Richards J summarised these submissions of the employer, including a note referring to the principles governing inferential fact-finding in Masters Home Improvement. Her Honour concluded that there was evidence from which VCAT might, applying the correct test, find that there had been discrimination. Her Honour remitted the matter to VCAT. The Court of Appeal rejected an appeal on grounds that included two grounds impugning her Honour's reasoning on the utility of a remittal. In short, in no way do these decisions suggest that all the principles in Masters Home Improvement raise questions of law in an appeal under s 148.

233 Keogh & Co also relied on Bramich,[202] asserting that this was a case where the parties 'conceded [that the four principles governing inferential fact-finding identified in Masters Home Improvement] applied to an appeal under s 148'.[203] On close examination, this is not so. In Bramich, Forbes J noted that Masters Home Improvement was relied on by both parties 'as governing the principles to be applied by the Tribunal when invited to draw inferences'.[204] That is not the same as saying that those principles apply to an appeal under s 148.[205] The case does not support Keogh & Co's contentions here. In particular, it does not establish that a choice made by VCAT between available inferences can constitute an error of law for the purposes of s 148, based on a view taken by the appeal court about which of them was most probable. On the contrary, Forbes J's reasoning makes it clear that a point of this kind would not raise a question of law; it would only be erroneous at law for VCAT to have drawn an 'impermissibly speculative' inference.[206] Forbes J said '[a]s the drawing of an inference is part of the fact-finding of the Tribunal, the drawing of an inference will only amount to an error of law where there is no probative evidence to support it'.[207]

234 In my view, the reasoning of VCAT in finding that Mr Pless Snr would have come round to offering the Proposed Undertaking to his son to negotiate a compromise of the Summons application did have a probative basis. VCAT identified that basis. It was that Mr Ferguson had persuaded Mr Pless Snr to sign the Proposed Undertaking on 13 October 2015, the day before the First Court Hearing. VCAT's finding was open on that basis and was not reached unreasonably.

235 Keogh & Co made various arguments challenging that finding. It argued that there was no evidence of Mr Pless Snr's thoughts on the matter.[208] It argued that the Proposed Undertaking had been prepared for the contingency that counsel might have wished to deploy it if it appeared that Riordan J was likely to make a freezing order during the First Court Hearing, and that purpose had come to an end when the First Court Hearing concluded without any such order being made.[209] These criticisms as to the likelihood of Mr Pless Snr ever agreeing to enter into a negotiation with his son after the First Court Hearing did not amount to contentions on questions of law. These were all attempts to dispute the merits of VCAT's factual finding that Mr Pless Snr would have entered into negotiations if Keogh & Co had advised him of the risks of not doing so.

236 The amended notice of appeal expressed the fifth question of law and grounds 9 and 10 in this way:

Question of law:

5. Was the Tribunal's reasoning that Roland Pless "would have come around" to offer the "proposed undertaking" to compromise Peter Pless's Summons Application seriously irrational and illogical in the Li sense? {R [48]-[57], [178], [181], [182], [187], [210], [211], [213]}.**

The grounds relied upon are:

9. The Tribunal's reasoning that Roland Pless "would have come around" to offer the "proposed undertaking" to compromise Peter Pless's interlocutory summons application was seriously irrational guesswork and illogical in the Li sense. {R [48]-[57], [173]-[187], [210] - [213]}

10. The Tribunal ought to have reasoned there was no probative evidence that Roland Pless would have instructed the Applicant to offer the "proposed undertaking" to [Peter Pless].

237 The amended notice of appeal included a note explaining the reference to Li in ground 9 as follows: '**Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li)'.

238 Keogh & Co substantially replicated its 'no evidence' arguments challenging VCAT's findings on causation as arguments that VCAT's findings did not meet the standard of legal reasonableness described in Minister for Immigration and Citizenship v Li.

239 There is a significant overlap between grounds of judicial review on the basis of 'no evidence' and grounds relating to the standard of legal reasonableness.[210] For essentially the same reasons that I have dismissed Keogh & Co's proposed 'no evidence' grounds, I also reject their arguments that the causation findings were legally unreasonable.

240 Robertson J in the Federal Court decision of Minister for Immigration and Citizenship v SZRKT[211] stated that the ground of 'extreme' illogicality or irrationality is 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the tribunal'. The principle that 'extreme' illogicality or irrationality must be shown for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, was approved by the Full Federal Court in ARG15 v Minister for Immigration and Border Protection.[212]

241 Likewise, in the present case, reasonable minds could reach different conclusions as to whether Mr Pless Snr 'would have come round' to offering the Proposed Undertaking to Peter Pless.

242 Outside the scope of the fourth and fifth questions (and their supporting grounds) in Keogh & Co's amended notice of appeal, Keogh & Co's submissions also addressed various other aspects of VCAT's findings on causation, contending that they were reached without evidence or in an unreasonable manner.

243 For example, it was submitted on behalf of Keogh & Co that a number of aspects of causation that went beyond the position of Mr Pless Snr, such as VCAT's rejection of Peter Pless' evidence that he would simply have accepted the Proposed Undertaking to resolve the Summons application (VCAT decision [215]-[216]), meant that VCAT's overall process of reasoning on causation was irrational.[213]

244 Perhaps it was intended that these submissions be treated as supportive not of the fourth or fifth questions, but of the tenth question in the amended notice of appeal, which I address next.

245 In any event, to the extent that these challenges were intended to support the fourth and fifth questions, out of abundant caution I note that I am satisfied that they were mere attempts at merits review. I reject them.

Alleged errors regarding VCAT's conclusion on Wrongs Act s 51(1)(a) - question 10 and grounds 19 and 20

246 The tenth question of law and grounds 19 and 20 were articulated as follows:

Question of law:

10. Did the Tribunal err in finding the Applicant's purported failure to advise Roland Pless to proffer the "proposed undertaking" by way of compromise of the Mareva component of Peter Pless's Interlocutory summons was the necessary condition of factual causation under s 51 of the Wrongs Act 1958 (Vic)? {R [51], [55], [195], [196], [208], [212], [218]}

The grounds relied upon are:

19. The Tribunal erred in finding the Applicant's purported failure to advise Roland Pless to proffer the "proposed undertaking" by way of compromise was a necessary condition of the occurrence of the alleged loss, namely incurring costs in resisting the Mareva component of the summons for the interlocutory summons application under s 51(a) of the Wrongs Act 1958 (Vic). {R [51], [55], [195], [196], [208], [212], [218]}.

20. The Tribunal ought to have found that if Roland Pless had been advised to proffer the "proposed undertaking" to compromise the Mareva component of Peter Pless's interlocutory application summons before the second hearing, Roland Pless would have incurred the fees he lawfully incurred in resisting Peter Pless's interlocutory summons application, and the fees were not incurred but for the Applicant's alleged failure to so advise under s 51(a) of the Wrongs Act 1958 (Vic).

247 Section 51 of the Wrongs Act provides relevantly as follows:

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

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

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

248 In certain cases, s 51(2) may be available as an alternative to factual causation being determined under s 51(1). However, there was no reliance on s 51(2) in the proceeding before VCAT. It is therefore clear that VCAT was required to apply the test in s 51(1). There was no controversy about the applicability of s 51(1)(b). The controversy in this Court is whether VCAT erred in its findings on causation referrable to the test in s 51(1)(a).

249 Section 51(1)(a) of the Wrongs Act establishes that the 'but for' test of factual causation governed the case: the negligence had to be a necessary factual condition of the occurrence of the harm. Further, the matter of what the injured person would have done if the negligent person had not been negligent, if relevant, is to be determined subjectively in the light of all relevant circumstances under s 51(3) of the Wrongs Act.

250 On my reading of VCAT's reasons, this is precisely how VCAT approached its task. Keogh & Co's contentions to the contrary are essentially conclusory submissions that VCAT made the wrong determination in applying the test in s 51. They are not contentions that VCAT misunderstood that test. The fact that VCAT was conducting a function that was governed by s 51 did not convert its findings of fact to findings that can be challenged on appeal on a question of law; they cannot be challenged unless they were reached without any evidence or contrary to the standard of legal reasonableness.

251 For the reasons already given with reference to the other causation grounds raised under questions 4 and 5 of the amended notice of appeal, VCAT made no such errors in reaching its conclusion on the first element of the chain of causation - that Mr Pless Snr would have come round to commencing a negotiation with his son based on the Proposed Undertaking.

252 As already noted, Keogh & Co made various submissions criticising VCAT's findings as to the remaining links of chain of causation of loss to Mr Pless Snr.[214] Keogh & Co asserted that VCAT's findings were mere speculation, were not open, were reached irrationally, and were erroneous. Keogh & Co's criticisms were all attempts to re-contest the merits. I am not satisfied that any of them identifies any error of law.

253 For these reasons, questions 4, 5 and 10 and grounds 7-10, 19 and 20 have no real prospects of success.

(e) Apprehension of bias grounds (question 12 and grounds 23 and 24)

Overview of Keogh & Co's contentions and further context

254 The twelfth question of law and grounds 23 and 24 were put this way:

Question of law:

12. Did the Tribunal err in failing to recuse itself on the basis of a reasonable apprehension of bias? {R [220] fn 257, Transcript 21 September 2022, p 117-131}.

The grounds relied upon are:

23. The Tribunal erred in failing to recuse himself on the basis of a reasonable apprehension of bias. {R [220] fn 257, Transcript 21 September 2022, p 117-131}.

24. The Tribunal ought to have found a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to resolve the questions raised by the Respondent's Amended Points of Claim given the Tribunal's preparedness to adumbrate making findings of dishonesty against the Applicant in the absence of any allegation or any evidence to support any finding of fraud.

255 I refer briefly to the context in which these grounds arose in paragraph 29 of these reasons, above. As already noted, the grounds relate to a failed application made by Keogh & Co for the learned senior member to recuse himself. VCAT explained the context in which that application was made as follows (including original footnotes):

1. For completeness, I note that, after the hearing commenced (and [Peter Pless] had given his evidence and Mr Ferguson had commenced giving evidence), Keogh & Co sought to produce further documents to show that Mr Pless Snr had paid Keogh & Co's fees from trust funds and, as such, sought to contend that he had not suffered any loss personally. I did not allow this material to be tendered and/or Keogh & Co to amend its defence. Essentially, this was because:

• the substance of Keogh & Co's defence had been a bare denial that Mr Pless [Snr] had 'suffered any losses whether in the amount claimed or in any other amount';[215]
• on the material before the Tribunal, the only apparent basis for the denial was that it was necessary to file a defence to the substantive proceeding and the affidavit prepared and filed for Mr Pless Snr 'addressed issues raised by Peter's substantive claim'.[216] In essence, this was an argument that the work would have had to be undertaken anyway;
• the first time that any contention was raised that 'Roland's legal fees were not paid by Roland, but by Pless Nominees', was in the Respondent's Outline of Submissions filed on 20 September 2022 (the first day of hearing) and those contentions were not supported by any evidence;
• no attempt was made to amend the points of defence until 12 October 2022 (after [Peter Pless] had given his evidence and Mr Ferguson had given most of his evidence), and those amendments extended well beyond what had been foreshadowed (including identifying a second company from which the funds had been drawn and involving tracing of the source of funds deposited into Mr Pless Snr's account);[217]
• the amendments included a reference to a file note of Mr Ferguson, which was sought to be included in the Tribunal Book and would have potentially raised issues as to Keogh & Co's knowledge as to the source of the funds used to pay its accounts;[218] and
• allowing these matters to be raised would have necessarily led to even further delay (and cost),[219] contrary to the Tribunal's obligation to 'determine each proceeding with as much speed, as ... a proper consideration of the matters before it permit' (and where the presumption is that parties bear their own costs).[220]

256 The third last footnote of the above passage notes the recusal application and its dismissal by VCAT for reasons given at the time. The relevant passage of transcript of the VCAT hearing on 21 September 2022 began with a reference to paragraph 6 of the most recent affidavit of Mr Keogh, dated 19 September 2022. That paragraph included the following relevant text:

In regard to the allegation that the estate of Roland Pless has suffered losses a result of the advice given by my firm and the barristers engaged by us, ... I confirm that I am advised by John Ferguson and verily believe that all payments made to us by Mr. Pless were from the account of Pless Nominees Pty. Ltd., and hence not paid by Mr. Pless. Hence, Mr. Pless suffered no such losses.

I wanted to then come back to the further affidavit of Mr Keogh and the paragraph which was in dispute which was paragraph 6. ...[221]

258 After some discussion with Mr Ferguson, the senior member foreshadowed his 'preliminary thinking' that the paragraph should be struck out as it was irrelevant to the defence as pleaded by Keogh & Co, leaving open the possibility that Keogh & Co may amend, but that would need to be supported by some evidence, and Peter Pless would need to have an opportunity to file material in response, and an additional hearing day might be needed. The senior member then made the following additional point:

I suppose the other point is that as I read it, the suggestion is that monies were paid to the Respondent by Mr Pless Senior if I can call him that, out of a company that acted as trustee of a trust.

It would appear that if that intention is pursued and to be made out, it may raise a question about the first or second limbs of the decision in Barnes v Addy ..., that is, knowingly in receipt of money in breach of trust.

So it would inevitably require me to make some findings in that regard.

Obviously those findings of themselves won't have any impact in this proceeding, but may have some issues for either Mr Keogh or Mr Ferguson.

So, I don't know whether Mr - - how you want to have an adjournment to discuss those matters with your instructor or how you want to proceed.[222]

259 Counsel sought clarification. The senior member then made a clarification as follows, and the following exchange between him and counsel occurred:

MEMBER: Well, as I understand the suggestion from the affidavit of - - obviously it's not been tested and none of that is clear at the moment but the suggestion is that Mr Pless Senior used money from Pless Nominees Pty Ltd which I understand acted as trustee for one or more trusts for his grandson to pay legal fees relating to his own affairs so - -

MR WHEELAHAN: Where the trustee was the non-third-party to the proceeding, Pless Nominees. Is that - - ?

MEMBER: Pless Nominees wasn't a party to the proceeding as I understand it.

MR WHEELAHAN: As a said, non-party - -

MEMBER: A non-party, yes.

MR WHEELAHAN: It's referred to in the transcript as the third non-party. ...[223]

260 The hearing was adjourned briefly. When it resumed, counsel for Keogh & Co applied for the senior member to excuse or recuse himself, referring to the applicable authorities and making a number of points. These included an argument that the senior member had suggested that serious findings of dishonesty might be made against Mr Ferguson without that allegation having been pleaded in the proceeding, and on that basis the test in the authorities for reasonable apprehension of bias was met.[224]

261 Counsel for Peter Pless opposed the application for recusal, making submissions that included the following:

All you've done, Member, is identified for my learned friend some considerations that he may take into account.... a reasonable Member of the public watching the proceedings would have understood you to do no more than that. It would not have understood you even to express a preliminary view as to either the outcome of the application to amend, any application to amend the points of defence, and a fortiori, express no view whatsoever about whether or not there was in fact or would likely be a breach of either limb of Barnes v Addy.

...

But even taking my learned friend's point at its very highest, it is well-established in the authorities, very well-established, that expressions of preliminary views are not a proper ground for ... [recusal] ... .[225]

262 Counsel for Keogh & Co replied. During his reply submissions counsel referred to prejudgement and the senior member asked for clarification about that point. Counsel responded as follows:

The apprehended bias that prejudges you're potentially shutting the Respondent out of dealing with this point by adumbrating potential findings of a Barns v Addy finding by the Senior Member if the Respondent were to go down its path in the absence of any submission by my learned friend, and in the absence of any pleading to that effect by my learned friend, and in the absence of what the Respondent would say, any evidence that would support such a finding, given that Prahran Car Radio Centre, MP Nominees and Pless Nominees were Respondents to the initial summons, that any money paid out of trust through the conduit of Roland Pless to pay the legal fees of the Respondent, which are the subject of this dispute, appear to be entirely lawful.[226]

... I was working on the understanding and you pointed me to the summons that Pless Nominees wasn't a party but that might not be the case, but I would take time to consider your application I think.[227]

264 After an adjournment, the senior member refused the application, giving reasons.[228] In doing so, after referring to the context including paragraph 6 of Mr Keogh's affidavit and the question of whether an application to amend Keogh & Co's points of defence might be made, his ruling included the following (my corrections of obvious mistranscriptions appear in square brackets):

... I further expressed the view that what is stated in the affidavit appears to raise an issue of Barnes v Addy on the first or second limbs, although it might express a view as to which limb might apply. The suggestion from the Respondent is that ... apprehended bias is established on the basis that by making those comments I've created a double-bind in terms of potential for findings of dishonesty if the application to amend the points of defence is made. The Applicant says that the Tribunal is only raising matters for consideration by the Respondent as to whether or not to amend the points of defence, do not even amount to a preliminary view but if they are a preliminary view that's not a proper grounds for [recusal].

A reasonable member of the public who is properly informed would understand the context of lengthy discussions at the start of the hearing about how findings about the claim by the Applicant against the Respondent might have impacted on the professional status of Mr Ferguson, and the ... view raised in relation to Barnes v Addy was a view that that might be an issue based on what was set out in Mr Keogh's further affidavit.

However, it is also relevant that I foreshadow that the Respondent could apply to amend the points of defence and file evidence in support of that amendment. It's natural that evidence might allay any concerns about Barnes v Addy and no views were expressed about that evidence which is not before the Tribunal. In that sense, I do not consider that a reasonable member of the public could form the view that the conclusion - and I interpolate if any - would not be altered irrespective of the evidence or arguments put forward. That's quoting from the decision of Keating v Morris [2005] QSC 243, [43], and that is cited in Forbes J Justice [in] Tribunal[s] at 15.14. As was indicated in [Re Lusink;] ex parte Shaw ... (1980) 55 ALJR 12, there is nothing wrong with the helpful indication of a point of view, which will remain provisional until the proceedings concluded, and that's cited at Forbes at 15.57.

I accept that the Barnes v Addy issue was not raised by the Applicant, but concerns about what the Tribunal might find in relation to this proceeding was put in issue by the Respondent witness. I also accept that my understanding that Pless Nominees was not a party to the summons may have been incorrect, although I think that still raises some issues about understanding what the nature of a third party Respondent was in relation to that proceeding. However, I don't accept that that means that a reasonable and informed Member of the public might reasonably expect that I might not bring an unprejudiced or impartial mind to the defence of the Respondent. For these reasons, the application for [recusal] is dismissed.[229]

265 The reference to 'Forbes J Justice [in] Tribunals' I take to be a reference to Dr JRS Forbes' well-known text book, and probably the 5th edition.[230] That learned author and the senior member both referred to Re Lusink; Ex parte Shaw.[231] In that case, Murphy J expressed support for judges to be able to give preliminary impressions on issues in the running of trials without being taken to have prejudged them.[232]

266 Dr Forbes quoted from a number of other judgments supporting the scope for judicial officers to permissibly express preliminary views and actively engage with parties' submissions. Wood J in Glynn v Independent Commission Against Corruption stated: '[t]here is nothing wrong with a helpful indication of a point of view [which] will remain provisional until the proceedings are concluded.'[233] Brennan, Deane and Gaudron JJ stated more strongly in Vakauta v Kelly that '[An adjudicator] who... sat completely silent... with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions... would not represent a model to be emulated.'[234]

267 During the hearing in this Court, I asked counsel for Keogh & Co to explain the basis for his contention that it ought to have been plain to VCAT that the trustee in question could draw on the relevant funds. Counsel directed me to a file note of Mr Ferguson dated 15 February 2016, reproduced in the Court book at page 615,[235] which I assume is the file note referred to in the VCAT decision at [220] in connection with Keogh & Co's application to amend its points of defence on or about 12 October 2022. That document records a conference with Mr Pless Snr and includes the following relevant text:

Discussed amounts claimed, conference with Nasos Kaskani, preliminary view of Counsel that no real defence to RP Family Trust funds paid out in 2013, should have been paid by trustee to Carmen, and remaining amount formed part of her estate - explained difficult to defeat claim, may have to repay. Claims for other amounts are less certain and should be defended. Do not recommend settling over $1m, more likely $400-500k. RP indicates could agree to repay funds associated with UBS Swiss account, nothing else.

Roland asked where money will come from. I explained Peter seeks tracing or unwinding of trust, money would come out of trust and back into his name. RP says need to pay other bills, legal costs from trust. I ask if payment comes from trust, RP says payment from his account, transferred from trust. I ask if loan to RP from trust, RP supposes yes.

268 The file note was part of the 'third supplemental tribunal book' dated 14 October 2022. There is no basis for thinking that the file note was before VCAT on 21 September 2022, when the recusal application was made and determined. In any event, the contents of the file note are far from clear about what trust and entities would be involved in funding legal costs. For these reasons, the file note must be put to one side in assessing the merits of Keogh & Co's proposed question 12 and grounds 23 and 24.

269 The principles applicable to an application for recusal on grounds of an appearance of potential bias are well settled. Specifically, the learned senior member was required to recuse himself if a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the question or questions he was required to decide in the VCAT proceeding.[236] If he was correct in concluding that a reasonable apprehension of bias did not arise in the manner described in the test, he was required to continue to hear the proceeding.[237]

270 The application of the test logically entails:[238]

(a) identification of the factor which it is said might lead the tribunal member to resolve the question other than on its legal and factual merits;

(b) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(c) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer, an assessment that follows from the preceding two steps.[239]

271 The test is often described as a two-step test, with paragraphs (a) and (b) above comprising the two steps. Once those two steps are considered, the concluding assessment in paragraph (c) can be undertaken.

272 The hypothetical fair-minded lay observer is 'a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system'. It provides the 'standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system'.[240]

273 The test is to be applied having regard to all the relevant circumstances.[241] The fair‑minded observer is a lay observer, not a lawyer, and will not have a detailed knowledge of the law. However, the knowledge of the fair-minded lay observer will cover the factual and procedural context, and what was said at the hearing.

274 In my view, it is clear from both the context and the mode in which the senior member expressed his concerns about paragraph 6 of Mr Keogh's affidavit and the potential for an application to amend of the points of defence, that the senior member would be taken by the fair-minded lay observer to have formed no conclusions and to be simply identifying issues that he thought would have to be addressed. The statements in question were considerably less firmly expressed than the statements in question in Re Lusink; ex parte Shaw. In that case, even quite firmly expressed views were accepted as provisional and incapable of leading to a reasonable appearance of bias.[242]

275 Counsel for Peter Pless was entirely correct in his submissions that no reasonable apprehension of bias could have arisen from the senior member's remarks here.

276 The remarks were made in a factual setting of considerable complexity involving multiple trusts and allegations about the shifting of assets over an extended period, and in the context of a somewhat late application by Keogh & Co to be permitted to raise further arguments and rely on further material. In the context of the case, it was entirely understandable that the senior member did not appreciate that the corporate trustee in question had been joined in some way to the freezing order application, by being made a respondent (although not made a party to the proceeding at the time). Counsel for Keogh & Co only made this point tolerably clear right at the end of his submissions in reply on the recusal application, at which point the senior member - very appropriately - acknowledged that he might not have appreciated that aspect of the facts. Further and more importantly, at all stages of discussion of the matter, the senior member noted that findings on the Barnes v Addy issue that concerned him would be dependent on further evidence.

277 In that setting, the proper characterisation of VCAT's conduct was that the senior member raised an issue about some of the material relied upon by Keogh & Co, which showed that Keogh & Co was on notice that its client was paying Keogh & Co's legal fees from funds withdrawn from a trust. In doing so, the senior member did not appreciate precisely which trust the moneys were withdrawn from. This was entirely understandable in the complex circumstances of the case. There was, moreover, a reasonable basis for VCAT to have been concerned, because the central allegations against Mr Pless Snr in the antecedent Supreme Court proceeding had been that Mr Pless Snr misappropriated money belonging to Mrs Pless and placed it in one of the trusts he controlled.

278 In raising his concerns, the senior member clearly did not appreciate that there was an argument available to Keogh & Co that the relevant trustee could legitimately draw on the relevant trust assets to pay legal fees it incurred in response to the Summons application, because it was named as a 'non-party respondent' in one or more of the documents generated in that litigation.

279 Neither of these matters would have been clear or obvious to anyone in the role of the senior member. In any event, and no doubt because the facts were unclear, the senior member expressed himself in a measured and matter‑of‑fact manner, without prejudgement of any of the issues.

280 In the complex setting of the case, nothing said or done by the senior member on these issues was capable of being fairly seen as bespeaking any potential for partiality or prejudgment. Contrary to the submissions made on behalf of Keogh & Co at various stages of the hearing before me, it is clear from the manner in which the senior member expressed himself that he was not making an allegation or accusation,[243] or even expressing a suspicion, against Keogh & Co; rather, he was putting Keogh & Co on notice that if Keogh & Co's application were allowed, the issue might, depending on evidence that later emerged, lead to adverse findings against Keogh & Co. He made it clear that he was not willing to run the risk of introducing that added complexity into what was, by then, already a disproportionately complex and lengthy matter.

281 Counsel for Keogh & Co submitted that, by identifying an issue that had not been alleged by Peter Pless and expressing a suspicion of dishonest conduct, the senior member might be regarded as showing himself to be potentially partisan against Keogh & Co. I disagree. The member was merely raising concerns in a reasonable, fair and measured manner.

282 I am satisfied that the member's ruling refusing to recuse himself was correct, as were the reasons he gave at the time.

283 Question 12 and grounds 23 and 24 have no prospects of success.

284 Leave to appeal on question 1 and grounds 1 and 2 of the amended notice of appeal will be granted and the appeal on that question and those grounds dismissed.

285 Leave to appeal is otherwise refused. None of the other questions or grounds of Keogh & Co's amended notice of appeal has a real prospect of success.

286 The proceeding will be dismissed. I will hear the parties on the question of the costs of the proceeding.

[1] Pless v Keogh & Co Pty Ltd (Legal Practice) [2023] VCAT 1376 (the VCAT decision).

[2] In the proceeding in VCAT, Mr Pless Snr alleged that the retainer was partly express (from an email that appears to have been in the tribunal book but was not reproduced in the material before the Court) and partly to be inferred. In the proceeding in VCAT, Keogh & Co admitted that it agreed to represent Mr Pless Snr and also admitted some of the alleged terms of the retainer, but did not otherwise make any admissions as to the form of the retainer.

[3] Second Further Amended Points of Claim dated 5 April 2022 (POC) [12](b), (d) and Amended Points of Defence dated 12 October 2022 (APD) [12].

[6] I assume that the reference in the VCAT decision at [57] to $34,500 is a slip.

[7] Victorian Civil and Administrative Tribunal Act 1998 s 148(1)(b) (VCAT Act).

[8] Ibid s 148(2A), which adopts the same test as Supreme Court Act 1986 s 14C. See also Tucker v Commissioner of State Revenue [2023] VSCA 125, [20]-‍[21].

[10] Keogh & Co arranged them differently - into eight topics - in their principal written submissions dated 15 May 2024 (version with corrected formatting of additional paragraph numbers) (May submissions) [3].

[11] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 (Attwells).

[12] Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 (Kendirjian).

[14] Ibid [8]-[36] (citations omitted), subject to two modifications: first, in the VCAT decision, the applicant in that proceeding (and respondent in this proceeding) was referred to as 'Mr Pless', but I adopt the nomenclature 'Peter Pless' to avoid ambiguity; secondly, I have added bolding and some additional terms in bold in the passage, identifying terms that I adopt in the remainder of these reasons. Further excerpts of the VCAT decision in these reasons are subject to the same modifications.

[22] Reformatted court book dated 1 May 2024 (Court book) 398; Tribunal book dated 11 July 2022 (Tribunal book) 166.

[23] Court book 400; Tribunal book 168.

[24] Court book 407; Tribunal book 175.

[25] Court book 407-408; Tribunal book 175-176.

[27] VCAT decision [33]-[36] (citations omitted).

[29] Three affidavits of Peter Pless dated 30 September 2021, 24 June 2022, and 6 April 2023; three affidavits of Mr Keogh dated 15 July 2019, 19 September 2022 (except paragraph 6) and 4 July 2023 (except part of paragraph 4, paragraphs 7-9 and exhibits JMK-2 and -3); an affidavit of Mr Ferguson dated June 2022; and an affidavit of Mr Keogh's solicitor, Anthony John Muir dated 19 September 2022. Mr Muir was not cross-examined.

[30] In Hi-tech Aluminium Windows Pty Ltd v Maric Developments Pty Ltd [2024] VSC 694, Ginnane J found that VCAT had the jurisdiction to hear a case under ss 182 and 184 of the Australian Consumer Law and Fair Trading Act.

[31] See also Albyn Queensland Pty Ltd (atf Bass-Rees Family Trust) v Australian Postal Corp [2024] VSC 584, [24] (Harris J).

[32] It was not suggested that any limitation related to matters arising under a law of the Commonwealth applied here, and I am satisfied that no such limitation applied.

[33] POC (as to breach of retainer) [12](b) and (d), [20], [21] and [22]; and (as to common law duty of care) [23](b), [24](b) and [25].

[34] Wrongs Act s 44.

[35] VCAT decision [40] (citations omitted).

[36] See POC: the Primary Claim is at [15]-[16]; the First Alternative Claim is at [20]; the Third Alternative Claim is at [20A]-[20B].

[38] POC [23]-[25]. This claim was to the same effect as the Primary Claim, First Alternative Claim and Third Alternative Claim: POC [24].

[50] (2016) 259 CLR 1; [2016] HCA 16.

[51] (2017) 259 CLR 275; [2017] HCA 13.

[52] Spralja v Bullard & Ors [2018] VCC 437 (Judge Woodward) (Spralja (2018)).

[59] Ibid [103]-[149]. At [104], VCAT noted May v Mijatovic [2002] WASC 151; (2002) 26 WAR 95, [148] (Hasluck J) (Mijatovic).

[60] Spralja (2018); VCAT decision [150]-[169].

[62] VCAT decision [170(a)(ii)]: namely, 'Whether Keogh & Co breached its retainer with Mr Pless Snr ... by ... failing to clarify his ambiguous instructions as to the use of the Proposed Undertaking', also referred to as 'Issue 2' and addressed in detail at [188]-[198].

[63] Transcript of First Court Hearing (TxFCH): TB, 175, 31 (L27-28).

[69] Putting causation to one side, VCAT's quantification of loss is not separately challenged by any question or ground in Keogh & Co's amended notice of appeal.

[72] Of course, Mr Ferguson was quite familiar with using consent orders to resolve Freezing Order applications.

[73] Miller v Martin [2021] VSCA 108, [71] (Tate, Niall and Kennedy JJA), citing Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [44] (Garde AJA).

[74] Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T (2021) 75 VR 1; [2021] VSCA 72, [198] (Beach and Osborn JJA, and Stynes AJA); Miller v Martin [2021] VSCA 108, [72] (Tate, Niall and Kennedy JJA); Heng Yang Developments Pty Ltd v Red Earth Developments (Aust) Pty Ltd [2022] VSC 231, [40]; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 362-367 [64]-[76] (Hayne, Kiefel and Bell JJ); [2013] HCA 18.

[75] See Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, 784 [50] (Warren CJ); Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, 327-328 [192] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); [2015] FCAFC 92.

[76] Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 7 (Mason J); Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ); Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410, 415 [13] (Dowsett and Gordon JJ, Edmonds J agreeing); Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450 [24] (Gleeson CJ, Gummow and Callinan JJ); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, 783 [48] (Warren CJ), 805-806, [167]-[168] (Whelan JA); the Court of Appeal's decision in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771 was reversed on appeal on different grounds, without affecting the remarks noted here: see [2016] HCA 26; (2016) 260 CLR 1, [24]-[27], [69]. Compare this with S v Crimes Compensation Tribunal [1998] 1 VR 83, 89.

[77] Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 287 regarding the fifth proposition (Neaves, French and Cooper JJ).

[78] Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1, [24]-[27], [69], relating to an incorrect conclusion that facts as found amounted to the formation of a legally binding agreement.

[80] May submissions [33]. Also at [57]-[64], citing - for the proposition that the acceptance of the undertaking would have involved an exercise of judicial power - Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 165 (Gibbs CJ, Stephen, Mason and Wilson JJ); [1981] HCA 48.

[82] Ibid [56], see also perhaps [83] and [89].

[83] Ibid [36]-[40], see also [65]-[82].

[84] (1988) 165 CLR 543; [1988] HCA 52 (Giannarelli).

[85] (2005) 223 CLR 1; [2005] HCA 12 (D'Orta).

[86] Donnellan v Woodland [2012] NSWCA 433, although incorrectly cited as 'Woodland v Donnellan [2011] NSWSC 777', in the May submissions [7]-[9], [73]-[78].

[88] Spralja v Bullards [2017] VSCA 32 and Spralja (2018) (together, Spralja).

[89] May submissions [65]-[66], [79]-[80], [96].

[90] May submissions [66], [72]-[76], [81].

[94] May submissions [51] and [62].

[95] Ibid 'A. Preliminary Question' and [1], 'B. Short Answer' and [2], 'D. Preliminary Issue - Order of determination [of] issues' and [4]-[11], 'F. Immunity from suit (grounds 1-6)' and [31]-[35], 'G. Advocate's Immunity Principles' and [36]-[51], 'H. Roland's Executor's wasted costs complaint indirectly collaterally challenges Riordan J's decision' and [52]-[56], 'I. The character of an undertaking requires the exercise of judicial power' and [57]-[64], 'J. Attwells and Spralja Distinguished' and [65]-‍[82], 'K. The requisite functional connection and [83]-[89], 'A. [sic] A judicial opinion is interposed between negligence and loss' and [90]-[94], and 'B. [sic] Finality' and [95]-[97]. Keogh & Co's 'Applicant's Reply' dated 18 June 2024, 'A. Advocate's Immunity' and [1]-[19], 'B. Kendirjian Distinguished' and [20]-[23], 'C. McHugh J's judgment in D'Orta is binding authority' and [24]-[31], and 'D. Indirect Collateral Attack' and [32]-[37]; oral submissions of counsel on 20 June 2024 transcript 4-5; 19-20; 39-40; 50-58; 62-64 and on 21 June 2024 transcript 189-196.

[97] Attwells 24 [46] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[102] Ibid [108]-[130] (Gordon J).

[103] Kendirjian [9] (Nettle J), [10] (Gordon J).

[104] Nettle and Gordon JJ qualified their agreement but not in relation to the issue of advocates' immunity.

[106] D'Orta, [70], [83] and [84] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[107] Applicant's reply dated 18 June 2024 [24]-[31].

[108] See also Spralja v Bullards [2017] VSCA 32 [50] (Tate, Ferguson and McLeish JJA) (Spralja (CoA)).

[109] Kendirjian 278-279 [5]-[7] (Nettle J).

[110] Attwells 31 [72] (Nettle J).

[111] Kendirjian 279 [9] (Nettle J).

[112] Ibid 279-280 [10]-[11] (Gordon J).

[113] Giannarelli, 554-555 (Mason CJ).

[117] Kendirjian [27] (Edelman J, with whom all other members of the Court agreed).

[118] At [27], Edelman J said the conclusion in Woodland v Donnellan was 'inconsistent with the course of the development of the principle of advocates' immunity'.

[119] Citing Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 165 (Gibbs CJ, Stephen, Mason and Wilson JJ); [1981] HCA 48.

[122] See also May submissions [49], footnote 71, to similar effect.

[123] See Spralja (CoA) [3]-[32] (Tate, Ferguson, and McLeish JJA).

[124] Spralja v Bullard & Ors (Ruling) [2016] VCC 138 (Judge Saccardo).

[131] Attwells 23 [41] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[132] Donnellan v Woodland [2012] NSWCA 433, [259]-[260] (Basten JA). Keogh & Co referred to the citation 'Woodland v Donnellan [2011] NSWSC 777', which appears to be an incorrect reference.

[133] See, eg, transcript of this proceeding, 20 June 2024, 4.26-5.20.

[134] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 61 (Brennan J); see also Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; 98 ALJR 594 [45]-[46] (Jagot and Beech-Jones JJ).

[135] (2022) 276 CLR 80; [2022] HCA 26, [35] (Kiefel CJ, Keane and Gleeson JJ).

[136] Court book 608-609 (reproducing Tribunal book 376-377).

[140] Court book 615 (reproducing Tribunal book 383).

[141] Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 98 ALJR 594 [45] (Jagot and Beech-Jones JJ) (emphasis in original text); [2024] HCA 11.

[142] Transcript of this proceeding, 20 June 2024, 13.23-14.19.

[143] Court book 624-625; Tribunal book 392-393.

[144] Court book 626 (Tribunal book 394).

[145] Email dated 29 October 2015, Court book 616 (Tribunal book 384).

[146] Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, 136 [64] (Kirby J); [2005] HCA 40.

[147] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).

[149] Ibid [100], citing Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172, 185 (Megarry J), cited with approval in Goddard Elliott (A Firm) v Fritsch [2012] VSC 87, [410] (Bell J).

[150] May submissions [100], citing Goddard Elliott (A Firm) v Fritsch [2012] VSC 87, [405]-[408], [411] (Bell J).

[151] See also ss 48 and 59 of the Wrongs Act.

[155] May submissions [102]-[110]; see also parts of [147]-[157].

[156] See, eg, Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 443 [62] (Gummow J); [2005] HCA 62.

[157] See, eg, Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, [57] (Gleeson CJ); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 432 [26], 433-434 [29] (McHugh J).

[158] Applicant's reply dated 18 June 2024 [49]-[53].

[159] May submissions [111]-[119].

[160] Applicant's reply dated 18 June 2024 [53]-[55]; and transcript of this proceeding, 24 June 2024, 47-48.

[161] (2005) 223 CLR 422; [2005] HCA 62.

[162] (1998) 192 CLR 431; [1998] HCA 5.

[163] Applicant's reply dated 18 June 2024 [55], citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ); [1993] FCA 456.

[164] See VCAT decision [50]-[51], [199]-[211].

[167] See, eg, Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192, 218 [69] (Gordon J); [2020] HCA 26.

[168] Ibid 209 [35] (Gageler J), citing Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 353; [1994] HCA 4.

[169] May submissions [141] (emphasis in original). See Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, 442 [50] (French CJ, Gummow, Hayne, Heydon and Crennan JJ); [2009] HCA 48.

[170] Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67 [91]-[92] (Bell CJ, Gleeson and Harrison JJA).

[171] See, eg, May submissions [146].

[172] Miles v Luneburger Franchising Pty Ltd [2021] NSWCA 248 [81], [88] (Gleeson JA).

[173] (2017) 372 ALR 440; [2017] VSCA 88.

[174] Ibid [101] (Santamaria, Ferguson and Kaye JJA) (citations omitted).

[175] May submissions [124], quoting from Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 305 (Dixon CJ); [1959] HCA 8.

[176] May submissions [124], citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, cited in Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480, 481 (Williams, Webb and Taylor JJ).

[177] (2013) 249 CLR 332; [2013] HCA 18.

[178] Branir v Owston Nominees (2001) 117 FCR 424, 435-436, [22]-[24] (Allsop J); [2001] FCA 1833.

[179] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79-80 [15] (Gaudron, Gummow, Hayne and Callinan JJ); [2001] HCA 49; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 331-332 [18] (French CJ, Gummow and Bell JJ); [2010] HCA 24.

[180] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 332 [20] (French CJ, Gummow and Bell JJ); [2010] HCA 24. Their Honours were commenting on the restraint required in interpreting the scope of the Supreme Court to make findings under s 148(7) of the VCAT Act.

[181] Red Pepper Property Group Pty Ltd S3 Sth Melb Pty Ltd [2019] VSC 41 [87] (Croft J).

[182] (2012) 38 VR 509; [2012] VSCA 262.

[183] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 443; (1993) 43 FCR 280.

[186] Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 7 (Mason J); [1980] HCA 16.

[188] (2001) 202 CLR 439, 450 [24]-[27] (Gleeson CJ, Gummow and Callinan JJ); [2001] HCA 12.

[189] [1971] 1 NSWLR 547, 557 (Mason JA).

[190] (2001) 202 CLR 439, 451 [26] (Gleeson CJ, Gummow and Callinan JJ); [2001] HCA 12.

[191] [2003] VSC 12.

[192] Keogh & Co's post hearing note dated 2 August 2024, [8]-[9].

[193] [2003] VSC 12, [17] (Balmford J).

[194] (1978) 22 ALR 128, 132-133 (Muirhead J, St John J agreeing).

[195] [1952] HCA 19; (1952) 85 CLR 352, 360; [1952] HCA 19.

[196] (1978) 22 ALR 128, 132-133.

[197] [2003] VSC 12, [18].

[199] (1952) 85 CLR 352; [1952] HCA 19.

[200] Tsikos v Austin Health [2022] VSC 174 (Richards J); appeal dismissed in Austin Health v Tsikos [2023] VSCA 82 (Emerton P, Walker JA and J Forrest AJA).

[201] Keogh & Co's post hearing note dated 2 August 2024 [1]-[6]. For example, at [1], Keogh & Co asserted that 'Richards J applied [the four principles summarised in Masters Home Improvement] to an appeal from the Tribunal on a question of law under s 148...'.

[202] Bramich v Transport Accident Commission [2022] VSC 330 (Forbes J) (Bramich).

[203] Referring to Bramich [16], see also, [46], [61].

[205] At ibid [61], her Honour dismissed a criticism made by the appellant of VCAT's inferential reasoning by referring to the second and third principles in Masters Home Improvement, but not in such a way as to suggest that the Court may review such reasoning for non-compliance with the third principle.

[208] May submissions [120]-[123], [127].

[210] Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 [217] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

[211] [2013] FCA 317; (2013) 212 FCR 99 [148]; [2013] FCA 317.

[212] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 [47] (Griffiths, Perry and Bromwich JJ); [2016] FCAFC 174.

[213] May submissions [128]-[132], where [128(g)-(n)] extended to aspects of the reasoning on causation beyond Mr Pless Snr being persuaded to offer the Proposed Undertaking.

[214] See in particular May submissions [128(g)-(n)], [130], [142]-[146], [147]-[164].

[215] Points of Defence to Second Amended Points of Claim dated 14 June 2022 [21] and [28].

[216] Respondent's Outline of Submissions dated 20 September 2022 [28].

[217] (Proposed) Amended Points of Defence to Second Amended Points of Claim dated 12 October 2022 [21A].

[218] Barnes v Addy [1874] UKLawRpCh 20; (1974) LR 9 Ch App 244. After I raised this matter with the parties, the respondent made an application for recusal based on apprehended bias. I dismissed that application for reasons given at the time.

[219] Noting that the proceeding ran for six full days, when the parties had estimated three days.

[220] VCAT Act s 98(1)(d) (and s 109(1)).

[221] VCAT transcript, 21 September 2022, 116.29-31, Court book 1096.

[222] VCAT transcript, 21 September 2022, 118.9-24, Court book 1098.

[223] VCAT transcript, 21 September 2022, 119.3-7; Court book 1099.

[224] VCAT transcript, 21 September 2022, 120.18-124.18; Court book 1100-1104.

[225] VCAT transcript, 21 September 2022, 124.21-125.9; Court book 1104-1105.

[226] VCAT transcript, 21 September 2022, 127.6-9, Court book 1107.

[227] VCAT transcript, 21 September 2022, 127.20-23, Court book 1107.

[228] VCAT transcript, 21 September 2022, 128.13-131.2, Court book 1108-1111.

[229] VCAT transcript, 21 September 2022, 129.7-131.2; Court book 1109-1111.

[230] JRS Forbes, Justice in Tribunals (The Federation Press, 5th ed, 2019).

[231] (1980) 55 ALJR 12.

[233] Glynn v Independent Commission Against Corruption (1990) 20 ALD 214, 219 (Wood J).

[234] Vakauta v Kelly (1989) 167 CLR 578, 571 (Brennan, Deane and Gaudron JJ); [1989] HCA 44.

[235] Transcript of this proceeding, 25 July 2024, 197-198.

[236] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344-345 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (Ebner); [2000] HCA 63; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 301 [36] (French CJ); [2011] HCA 2; C_haristeas v Charisteas_ [2021] HCA 29; (2021) 273 CLR 289, 296-297 [11] (French CJ); [2021] HCA 29; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148, 159-160 [26], 163 [37] (Kiefel CJ and Gageler J), 171 [67] (Gordon J), 185 [112], 202 [162] (Edelman J), cf 210 [193] (Steward J, dissenting), 220 [221] (Gleeson J, dissenting), 238 [274] (Jagot J) (QYFM); [2023] HCA 15.

[237] Ebner 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ), 394 [175] (Kirby J). See, eg, QYFM 180 [96] (Gordon J), but see also 190 [129] (Edelman J).

[238] QYFM 163 [38] (Kiefel CJ and Gageler J); see also Ebner 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[240] Ibid [45] (Kiefel CJ and Gageler J), citing C_haristeas v Charisteas_ [2021] HCA 29; (2021) 273 CLR 289, 299 [21]; [2021] HCA 29.

[241] See, eg, QYFM 172-173 [72] (Gordon J).

[242] Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, 14 (Gibbs ACJ).

[243] See transcript of this proceeding, 20 June 2025, 118.6-9. This submission was withdrawn during reply submissions: transcript of this proceeding, 25 July 2024, 196.18-21.