Was the advice which Mr Ford gave under the first retainer negligent or clearly wrong?
102The first retainer was entered in June 2007. It was to:
"... review the material provided by you, to advise you of the potential for having the expulsion decision set aside and, if applicable, of the means for doing this, and, if you require, taking steps to have the decision set aside."
103There was no suggestion that any immunity from suit applied to the work which Mr Ford performed under the first retainer.
104The advice which Mr Ford gave Mrs Bird was that a settlement should be pursued with the school, there having been inadequacies in the procedures which had been followed before the decision to expel was made. That advice has not been shown to be either negligent or clearly wrong. To the contrary, not only were there apparent problems with those procedures, that there had in fact been real deficiencies was accepted by the school itself in August 2007, when the new Principal decided to review its procedures and offered to re-enrol the child in 2008.
105Contrary to the plaintiffs' case, had Mr Ford advised them in early June 2007 that they had no case and that it would be misconceived to pursue the reversal of the school's decision, because the Court had no jurisdiction to entertain any application they could bring, he would have been in breach of his duty. Advice that there was nothing which could be done would have been clearly wrong, if then given. Likewise, if he had given that advice when the letter from the outgoing Principal was received in June, refusing to reconsider the expulsion, he would also have been wrong and in breach of his duty.
106That it was a matter which Mr Ford advised could be pursued further with the school, given the instructions he received from Mrs Bird, is understandable. The expulsion occurred after the child was sent out of a class in which a song, which had highly inappropriate lyrics, was played to the class. The teacher believed that the child had misbehaved, making masturbatory-type gestures. He sent the child to the Deputy for discipline. It was the Deputy who considered that this misbehaviour warranted the child's expulsion. The child was sent home. He told Mrs Bird he had not made such gestures. When Mrs Bird returned to the school to speak to the Principal, she came to understand that the child had already been expelled. Even though the child denied the misbehaviour, the Principal declined to reconsider the expulsion. That this was the subject of Mrs Bird's concerns is understandable, as was a desire to have the decision revisited.
107Her former solicitor had earlier written to the school on the basis that it had not pursued a procedurally fair process, before making the decision to expel. Mr Ford took a similar view on the instructions which he received. While it was not a view which the retiring Principal accepted, it was a view which the new Principal accepted in August, after his investigations. Mr Ford's advice to pursue a settlement was plainly sound.
108When Mrs Bird first approached Mr Ford, she had already threatened the school with legal proceedings. Mr Ford's advice was entirely consistent with the obligations nowadays imposed upon potential litigants by the Civil Procedure Act, which provides in s 56(3A):
"(3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose."
109A 'civil dispute' is defined in s 18A to mean 'civil dispute means a dispute that may result in the commencement of civil proceeding'. Part 2A includes s 18E which provides:
"18E Pre-litigation requirements
(1) Each person involved in a civil dispute to which this Part applies is to take reasonable steps having regard to the person's situation, the nature of the dispute (including the value of any claim and complexity of the issues) and any applicable pre-litigation protocol:
(a) to resolve the dispute by agreement, or
(b) to clarify and narrow the issues in dispute in the event that civil proceedings are commenced.
(2) For the purposes of this section, reasonable steps include (but are not limited to) the following:
(a) notifying the other person of the issues that are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute,
(b) responding appropriately to any such notification by communicating about what issues are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute,
(c) exchanging appropriate pre-litigation correspondence, information and documents critical to the resolution of the dispute,
(d) considering, and where appropriate proposing, options for resolving the dispute without the need for civil proceedings in a court, including (but not limited to) resolution through genuine and reasonable negotiations and alternative dispute resolution processes,
(e) taking part in alternative dispute resolution processes.
(3) Each person involved in a civil dispute to which this Part applies is not to unreasonably refuse to participate in genuine and reasonable negotiations or alternative dispute resolution processes.
(4) Nothing in this section requires a person to provide any correspondence, information or document that might tend to incriminate the person."
110Mr Ford's advice was not only sound, it was successful.
111The plaintiffs complained, nevertheless, that he ought to have advised them from the outset that the litigation which Mrs Bird wished to pursue was hopeless and ought never to have been considered.
112Mr Ford agreed in cross-examination that after he was first approached on 6 June 2008, he did not write to Mrs Bird advising her as to what claims could be agitated in any court proceedings which might be initiated. Nor could he remember then discussing with her the differences between a review of the merits of the school's decision, or a judicial review of the decision.
113He agreed that by 15 June he had read the documents Mrs Bird had provided, by which he had been instructed that the child had been expelled after being disciplined by a teacher, having been taken out of class and referred to the Deputy, whose dealings with him resulted in his expulsion. Shortly after this discussion he was asked to leave the school. Later he returned with his mother and they both then met with the Principal and asked him to reconsider the decision. The Principal upheld the decision.
114Mr Ford explained in cross-examination that at that stage, there was a doubt as to the extent to which the allegations had been put to the child or his parents, before the expulsion decision was made. He wanted to check that and other questions which he had about the process which had been pursued and what had happened. He also wanted to enquire whether Mrs Bird wished to pursue a Christian approach to dispute resolution. She did.
115On 18 June he met with Mrs Bird to discuss the material she had provided and on 19 June he interviewed the child, who denied that he had engaged in the misbehaviour on which the decision rested. So instructed, Mr Ford advised and Mrs Bird accepted, that a negotiated settlement should be pursued with the school.
116On 20 June, Mr Ford and Mrs Bird discussed the case which could be advanced to the school about the inadequacies of the process which had been pursued, before the decision to expel was made. They were that the Principal had spoken to neither of the plaintiffs, nor their son, before the decision was made. That decision had rested on an account of what had occurred in the classroom, which the classroom teacher had provided to the Deputy. The Principal had not obtained any account from the classroom teacher, the child, or from other students present who had witnessed what happened in the class.
117In cross-examination Mr Ford explained that he was then still in some doubt as to the extent to which allegations had been put to the child and his parents, which he considered was an important matter, in terms of a potential expulsion of a child, as was the extent to which the relevant staff had investigated what had happened, by speaking to the right people, to obtain the relevant information. He considered that these were important considerations in terms of procedural fairness.
118When Mr Ford, approached the school, there were difficulties in arranging a meeting because the Principal was about to retire. He prepared a document for a proposed meeting. In cross-examination he agreed that he was then aware that Mrs Bird had already met with the Principal and the chairman of the School. His evidence was that the school was a Christian school and what was being sought was a negotiated outcome, consistent with Christian ideals to which Mr Ford referred in his document, with which Mrs Bird agreed.
119By the document provided to the School, Mr Ford forcefully sought to advance a case that giving a student procedural fairness accorded with Christian values, as well as the law; that the school had not followed a procedurally fair process; and that its decision to expel was vulnerable to challenge. He said in the document:
"10. The law in Australia reflects the biblical position. In situations involving the suspension or expulsion of a student, schools are expected to investigate thoroughly and fairly. Justice O'Keefe of the NSW Supreme Court, when considering a suspension decision, noted with approval that "the Principal conducted a thorough and impartial investigation of the circumstances". Let me quote from a paper I delivered in Wellington, New Zealand a few years ago at the annual conference of the Australia and New Zealand Education Law Association:
Ensuring that proper investigation of the allegations occurs, that all parties are heard and relevant submissions considered
It is often correctly said that investigations within educational institutions are not bound by the rules of evidence. Nevertheless, it must be remembered that these rules are a useful guide to any investigator. They should only be departed from "where consideration of equity, good conscience and substantial merit so justify."2 Evatt J made the same point in R v War Pensions Entitlement Appeal Tribunal; exp Bott:
After all, [the rules of evidence] represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and solicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice ".
I also wrote:
An investigator must speak to all the people involved, look at any relevant documents and make other relevant enquiries - all with a view to making a finding or findings on the balance of probabilities, as to what happened. While all of this may appear obvious, sadly, it is clearly not always obvious to investigators engaged by educational institutions. For example, the investigator in Carter, a former police officer, was criticised because she failed to interview any of the witnesses who could have given a contrary view of events to that put forward by those making the allegations.
120Mr Ford referred to sources of investigation not pursued by the school and to what O'Keefe J had observed in CF v The State of New South Wales [2003] NSWSC 572; (2003) 58 NSWLR 135. That was:
"43 In my opinion, on the evidence before the court in the present hearing, the Principal conducted a thorough and impartial investigation of the circumstances in which the plaintiffs were involved on 28 May 2003. He afforded each of the plaintiffs an opportunity to be heard. Each was advised as to the reason for their interview. Each was informed of the allegation made against them. Each was informed of the findings and as to their rights of appeal. In reaching his decision, I am satisfied that the Principal acted fairly and without bias."
121Those observations were made in the context of an application for interlocutory relief, which was refused, his Honour concluding that it had not been established that the balance of convenience favoured the grant of the order sought. The circumstances there involved an 11 day suspension and a decision made in a context where the procedures under which the Principal was making his decision, provided amongst other relevant things that.
"Procedural fairness is a basic right of all individuals dealing with authorities. All communities have a legitimate expectation that Department of Education and Training officers will follow these principles in all circumstances, including when dealing with suspensions and expulsions."
122Mr Ford did not suggest in his note to the school that similar procedures applied to it, a private school, but his arguments were rather directed to deficiencies in the procedures which the school had followed.
123To make his case, Mr Ford also referred to a decision given by Palmer J in Carter v NSW Netball Association [2004] NSWSC 737, which involved the Netball Association, arguing by analogy to the deficiencies in the procedure followed in that case, that Palmer J would set aside the school's decision to expel. He also made references to the style of questioning of the plaintiffs' son, which he argued had problems of the kind dealt with by Young JA in Hedges v Australasian Conference Association Limited [2003] NSWSC 1107, the case involving a church.
124By reference to views expressed by O'Keefe J as to the rights of students to have an independent person present when being questioned, Mr Ford also argued that he would be entitled to relief. He also made reference to the standard of satisfaction which the Principal should have reached, before expelling the child, by reference to the test discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 and how the Principal could not have formed any certain views about what had happened in the classroom, given the inadequacy of his investigations.
125Mr Ford concluded with:
"The Supreme Court of NSW has readily accepted jurisdiction in matters like this and has been quick to set aside decisions made where only some of the flaws noted above were present. I have no doubt that the Court would set aside the expulsion decision. However, Phillip and Vrede do not want to approach the Court. They believe that this is not the way God would have Christian people resolve their disputes. They recognise that to litigate this matter would bring the College and its mission into disrepute. The College seeks to develop in its students an understanding of the Gospel message of Jesus Christ, together with the importance of serving God. Phillip and Vrede endorse that mission and do not wish to do anything that might detract from it."
126Mr Ford urged a Christian approach to the dispute and a resolution which accepted Mr and Mrs Bird's concerns, set aside the decision as invalid, acknowledged its unfairness, allowing their son return to the School at the commencement of the next term, as well as providing an apology from the teachers involved, as to their failure to investigate properly. Mrs Bird agreed that this approach was one which she embraced, given her own beliefs.
127In cross-examination, Mr Ford explained that at this stage he had not considered what the school's rules in relation to discipline provided. He was not certain when he was provided with those rules, of which there were two versions and a question as to which applied. Rather, he explained that he was pursuing negotiations with the Principal, on the basis that it was still worth talking to him, given what had already happened. He explained that the document was an argumentative one, putting a view as strongly as possible, that there was authority to the effect that a Principal had to act honestly and reasonably in pursuing an expulsion.
128Mr Ford agreed that the school's enrolment conditions did not require such a process, but once he saw the rules, he considered that there was nothing in them which was contrary to that approach. He was thus seeking to advance the plaintiffs' case as highly as it could be put, given the apparent confusion on Mrs Bird's part, as to how events had unfolded prior to the expulsion.
129Mr Carr of the Association of Independent Schools then spoke to Mr Ford. He advised that the Principal believed that the teachers' accounts were correct; that he had met and spoken with the family on a number of occasions; that he considered that they had been given every opportunity to put their case and that he would not reverse the expulsion. He said the Principal would support the child's re-enrolment in 2008, pending a satisfactory report from his current school. Still, Mr Ford pressed for a meeting, because there were things which Mrs Bird still wanted to put to the Principal as to the merits of the decision.
130A written response to that request was then received, with the advice that the Principal took the view that the school had acted appropriately; that the teacher's eye witness account was accurately interpreted as grossly inappropriate behaviour; and that the Principal was not prepared to review his decision.
131This letter caused Mrs Bird to question her pursuit of her son's return to the school, as she advised Mr Ford on 30 June. It was at this stage that Mr Ford obtained further information from Mrs Bird as to the child's poor prior history at the school. Mr Ford still considered the Principal's advice to be argumentative. He advised that a meeting with the newly appointed Principal should be pursued.
132In cross-examination, Mr Ford agreed that as he understood the law at that time, a court would not be concerned with the merits of the decision, but with whether or not it was procedurally unfair, if it had power to deal with that question. He said that he repeatedly explained to Mrs Bird that on the underpinning factual questions, she might not succeed in getting her son re-enrolled, given the child's record.
133The plaintiffs accepted Mr Ford's advice to pursue the matter with the new Principal. Mr Ford said in cross-examination that he understood that the last thing they then wanted was to pursue court proceedings.
134A meeting with the new Principal took place on 6 August. He took a different view to that of the former Principal. He conceded that there had been procedural difficulties with the course which the school had taken. He was, as a result, reviewing the school's procedures, but had concluded that he could not go against the decision which the former Principal had made about the expulsion. He also explained why he considered that it was not a good time in year 10 for the plaintiffs' son to move schools. In the result he was prepared to offer the child a place in 2008, on probation, with his conduct then to be monitored.
135There was then a break in the meeting. It was then that Mrs Bird told Mr Ford that she was of the view that if the school would not take her son back, she would go to court. Mr Ford counselled her against this course, for reasons which he explained. They included the significant cost; that if she lost she would have to pay 60-80% of the school's costs; that there was no guarantee that she would win; and that in part the case would depend on credit issues. He also explained that he did not have a full feel for what the evidence led against the plaintiffs would be; that even with expedition, a decision could only be obtained late in the year, when it would be worse for their son to move schools; and any decision could be received so late, that any win would be too late to be of any value.
136Mrs Bird was upset that the school would not take the child back. She said that she was prepared to go to court and wanted to know if Mr Ford would support her. Mr Ford considered that she had done the right thing in pursuing a settlement and told her that he would act for her, even though he considered that going to court was not a good option. In cross-examination, Mr Ford agreed that they did not then discuss the Court's powers in such proceedings. Mr Ford agreed that to that point, he had not explained to Mrs Bird precisely what any litigation would involve.
137When the meeting resumed, Mrs Bird asked the principal whether the school was prepared to have her son back immediately and when the principal declined, she told him that she would go to court. He said that he needed to take more advice and it was agreed that no immediate action would be taken.
138Afterwards, Mr Ford explored a possible basis for a settlement, involving a return in the following year further with Mrs Bird.
139In cross-examination, Mr Ford agreed that he did not then tell Mrs Bird that it would be almost impossible to achieve what she wanted in court proceedings. By email of 9 August, Mr Ford urged Mrs Bird to reconsider her attitude to a settlement, reiterating his advice as to the risk and cost of the litigation and its potential futility. He proposed that the School be approached with a counter offer, which involved an admission that the investigation was flawed, the expulsion decision improperly made, an acceptance that the child would return to the school in 2008, school records to be amended to reflect that the decision was a mistake, changes in the school's practices introduced and a $10,000 paid towards their costs.
140Mrs Bird wished to pursue a settlement, but not on the terms Mr Ford proposed. She wrote to him advising that she considered it best for her son to return to the school; she had spoken to the Board of Studies and understood that if she made a formal complaint about the song played in the class in which the misbehaviour for which the child was expelled had occurred, the school could lose its accreditation. She believed that when the school became aware of this, it 'will fix the problem'. The school was aware of her intentions, she said, because she had seen the Bishop of the Diocese in May and had informed him that if he was not able to bring a resolution, she would be proceeding to court. She said:
"I don't WANT to go to Court. It is that last thing I want. I have never been inside the Supreme court. But as a Christian I am gong to hold them accountable for what they have done, and if Matthew 18 fails (as it appears to have after 4 (sic) half months) then I will be left with no other alternative. If you decide you don't want to represent me, I will be very disappointed, but I will respect your decision."
141She also instructed that $10,000 was not sufficient. She proposed to make a formal complaint to the school about the former principal and teachers involved 'when this is finished', even though she considered 'it will do nothing'. She said that she had not worked for two and a half months before she met Mr Ford and so had lost about $50,000 from her business, which she wished to 'charge' them, because 'If I charge them $50,000 loss of income, I can assure you they wont(sic) do this to anyone else'. Also to be considered was the damage her son had suffered. Mrs Bird also identified people she required the school to contact and that the teachers involved were not to discipline or teach her children.
.
142Mr Ford made some notes of his thoughts about Mrs Bird's email, which included the observation that he was 'concerned that she is acting irrationally in saying she'll go to Court as it's almost impossible to achieve what she wants that way'. He considered that if she went to Court, the school might never take him back. He recorded amongst other things:
"7. We will act for her in going to court, but only after she acknowledges the advice we have given about the downside of doing so."
143Given some of Mrs Bird's settlement requirements, Mr Ford's concerns had an obvious basis. In cross-examination, Mr Ford agreed that he did not then write to her to advise that she had no prospects of success, although he had told her many other negative things about the pursuit of the foreshadowed litigation.
144Mr Ford explained that he did not consider that the case had absolutely no prospect of success, but that any victory could be pyrrhic, because if the school followed the proper procedures, it could make the decision to expel again and that "the decks could not be cleared", as Mrs Bird wished. There was thus in his view no upside from the pursuit of the litigation. He also explained that he considered that he was in the circumstances not obliged to refuse to act for Mrs Bird. He believed that she was in a personally difficult situation. While he did not agree with her decision to press on, he decided he was not going to abandon her. He advised her, however, that her desire of having the child return to school with no record of the expulsion ever having taken place was unrealistic, because there would be a record of the proceedings.
145On 13 August they spoke again and Mr Ford convinced Mrs Bird not to be too prescriptive in terms such as who she would permit her child to have contact with, if he returned to the school, but that it should be told that she wanted a return now.
146Before this could be conveyed to the school, a letter of 14 August was received from the Principal. He advised that he had decided that the child's 'withdrawal' should stand and that he would consider any application for his return to the school in 2008, but could give no guarantee of a place. He also considered that there would be no benefit in any further discussion or correspondence.
147Mr Ford advised Mrs Bird that she would now have to decide whether to proceed to court. Again, Mr Ford advised her of the need to consider the cost; that there was no guarantee that she would win and that it might not be worth the effort, because a decision in 2007 could not be assured. He also said that he would speak to a barrister about proceeding.
148When Mrs Bird wrote to Mr Ford on 15 August that she thought that the school did not consider that she was serious about going to court, she said that she proposed to approach the Archbishop and later did. She was then concerned about the Principal's use of the term 'withdrawal' when it was the school which had expelled him. She said she was confused as to why the school's solicitors were advising that it had done nothing wrong. She considered one of the teachers to be a pathological liar, but wanted to know whose evidence a judge would believe. She also wanted to know whether she could win against the church, given that its solicitors 'know the judges'. She also instructed that she wanted a barrister's advice as to their 'chances of winning with the evidence we have'.
149That advice was later obtained from Mr Davidson in September, after the second retainer was entered. Like Mr Ford, Mr Davidson advised that the litigation should not be pursed, given the risks involved and its potential futility. The plaintiffs accepted neither his advice, nor that of Mr Ford and the proceedings were then pursued.
150I do not consider that the alleged negligence is established on this evidence. It does not show that Mr Ford did not take reasonable care, or failed to exercise "due care, skill and diligence", bringing to the task required to be performed "the competence and skill that is usual among legal practitioners" in the advice he gave the plaintiffs in their pursuit of a resolution with the school.
151To the contrary, by a diligent and forceful pursuit of the arguments he considered available to advance to the school, at the meeting with the new Principal the plaintiffs received an offer for the child's return to the school in 2008, which they rejected. That decision was made despite Mr Ford's clear advice that litigation should not be pursued, given the difficulties which confronted the plaintiffs in achieving what they wanted, not only a reversal of the expulsion decision, but a host of other conditions which he considered they could not achieve. That included the record being altered, to reflect a situation, as if the expulsion had never occurred. Mr Ford's advice that this could not be achieved had an obvious foundation. Not only had the child been expelled long before, he had been attending another school, where he was due to sit his School Certificate, for a considerable time, while Mrs Bird had been pursuing his return to the school with the Principal and others in authority.
152The new Principal's view reflected, presumably, a view on the one hand that the decision to expel rested on an inadequate investigation, but on the other, the view which he took of the child's conduct, given his record at the school. The Principal explained to Mrs Bird that he considered that in the circumstances, he could not revisit the view which the former Principal had taken of the child's misbehaviour, but he would offer the child a place at the school in the next year.
153It is apparent that Mr Ford was not negligent in the advice which he gave the plaintiffs. That he should have advised them, even when they first approached him, that this Court had no jurisdiction to deal with any of their concerns and that any proceedings which they might bring were entirely misconceived, also cannot be accepted. That depended on a number of considerations, about which Mr Ford needed instructions, before such advice could be given.
154It is not in issue that at that time, there was no Australian authority which established that private schools are obliged to give a student procedural fairness, before a decision to expel is made. In 1976 the view had been taken in Seymour v Swift (1976) 10 ACTR 1 that the headmistress of a private school did not have to act in a quasi judicial capacity and so did not have to apply the rules of natural justice.
155Since then other cases where complaints were made as to a failure to afford a student procedural fairness have been resolved at an interlocutory stage, on the basis of undertakings. There have also been English authorities which suggested that the rules of procedural fairness could be a source of rights against such a school, but there was no Australian authority deciding the point either way. There were Australian authorities where an obligation to afford procedural fairness had been found in respect of other private bodies, where, for example a person's livelihood might depend on membership of a voluntary association. Courts have intervened where a decision to expel was made without good faith or dishonestly or were processes required by the rules were not followed (see for example Carter v NSW Netball Association).
156In Hedges v Australasian Conference Association Limited declaratory relief had been given in a case where allegations of sexual abuse had been determined against the plaintiff, a teacher of a school conducted by the Seventh Day Church, of which he was a member, by a committee of the church. The adequacy of the investigation was in issue. It arose to be considered in a context where the provisions of the Commission for Children and Young People Act 1998 applied.
157There consideration was given to the requirement that where a body is charged with a responsibility, it must exercise that responsibility itself and cannot delegate it to another (at [78]) and that the decision maker must have before him the evidence and submissions of those entitled to be heard (at [79]). Difficulties where the authority which conducted the investigation was also the adjudicator, were also considered (at [100]). The view taken was that the process pursued had not given the plaintiff a fair chance of knowing what exactly was alleged against him and an opportunity to answer (at [125]). In the result it was considered, nevertheless, that given the nature of the decision maker, the most to which the plaintiff was entitled was a declaration that the purported decision was void (at [150]).
158Given the importance of an expulsion to both a child enrolled at a private school and his or her parents, having regard to the obligations imposed on parents by the Education Act, that such matters might also be thought important for a school to consider, before a decision to expel was made, could not be dismissed out of hand. As the enactment of s 47(h) of the Education Act revealed, such matters had come to be considered by the legislature as having some importance. What the school's rules and policies provided in that regard was thus also a relevant consideration, as was the basis of the decision in fact made and by whom, as Einstein J's later reference to the High Court's judgment in Australian Workers' Union v Bowen (No 2) revealed. The attitudes of the school itself to such matters, irrespective of what its rules then provided, was also a relevant consideration, as the new Principal's attitude later revealed.
159That the possibility of any litigation being brought was from the outset more than speculative, as was argued for the plaintiffs, because there was unquestionably a total absence of any legal basis upon which any proceedings could have been brought by the plaintiffs, may not be accepted. That submission also overlooks the real possibility that the dispute could be settled, even if transpired that there was no legal basis to pursue proceedings against the school.
160The offer of settlement was rejected, contrary to Mr Ford's advice, despite his advice that litigation was likely to fail or provide a pyrrhic victory at best. That there would have been any different result, had the plaintiffs earlier been given the advice they now claim they should have been given from the outset, has also not been established, a matter to which I will return.