Colquhoun v Bye

Category: Procedural rulings

Parties: Darren Colquhoun (Plaintiff) (self-represented)
Adam Bye trading as Auslex Law (Defendant)

Representation: Counsel:
S Scott (Defendant)
Solicitors:
Moray & Agnew (Defendant)

File Number(s): 2025/00086768

Publication restriction: Nil

JUDGMENT

1. The applicant, Mr Darren Colquhoun, by notice of motion filed on 10 June 2025, seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (‘the Act’) to commence civil proceedings against his former solicitor, Mr Adam Bye, a Director of Auslex Law Group.

Felons (Civil Proceedings) Act

2. The Act provides, in ss 4 and 5:

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

5 Grant of leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

3. On 4 October 2023, Mr Colquhoun was found guilty of the following serious indictable offences:

● One count of dishonestly destroying, by means of fire, his house, with a view to making financial gain, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW),

● Six counts of fraud by dishonestly obtaining, by deception, a financial advantage, contrary to s 192E(1)(b) of the Crimes Act 1900, in the following amounts from the following entities:

• $60,000 from the Australian Red Cross,

• $3,000 from St Vincent de Paul,

• $40,699.94 from the Rural Assistance Authority,

• $3,500 from the Salvation Army,

• an additional $8,000 from the Salvation Army, and

• $50,000 from Services NSW.

● One count of attempted fraud by attempting dishonestly to obtain, by deception, a financial advantage, contrary to s 192E(1)(b) and s 344A of the Crimes Act 1900, and

● One count of dealing with the proceeds of crime, namely $255,000, knowing that it was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900.

4. Mr Colquhoun was convicted of the nine counts set out in [3] above on 4 October 2023. He was sentenced to an aggregate sentence of 5 years and 6 months imprisonment and a non-parole period of 3 years and 6 months was imposed, commencing on 3 October 2023. He is presently in custody pursuant to this sentence and will not be eligible for parole until 2 April 2027.

5. Mr Colquhoun is eligible to seek leave to institute civil proceedings pursuant to s 4 of the Act.

Principles applicable to the application for leave

6. The matters concerning which the Court must be satisfied, pursuant to s 5 of the Act, were considered in TS v The State of New South Wales [2021] NSWSC 1649 by Wilson J at [11] – [14]:

11 Thus, there are two statutory pre-requisites to a grant of leave: prima facie there is a ground for the proceedings; and the proceedings are not an abuse of process. Those two criteria present a relatively low threshold: SW v State of New South Wales [2010] NSWSC 966. See also Mr D v Ms P [2020] NSWCA 174.

12 A ground which is, on its face, arguable and thus not entirely hopeless, should satisfy both, since an arguable claim is not ordinarily an abuse of process. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where Allsop ACJ and Basten JA said:

“Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading.[...] As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not “hopeless” or “unarguable”. Different expressions used from time-to-time do not indicate any difference in the standard to be applied.”

13 It is neither necessary nor possible, for the Court to make an assessment of the merits of the plaintiff’s claim; what is required is that the Court “form a broad impression” as to whether the claim is an arguable one. The plaintiff’s detailed police statement of 10 October 2018, together with information as to the circumstance of the employment of the alleged abuser and the role he had within the Corrections system, lead me to conclude that the Claim is arguable. There is no basis upon which to conclude that it is an abuse of process.

14 Perhaps a little unusually, the Court’s leave is sought retrospectively, since the Claim has already been filed. That does not, however, invalidate the claim.

The Civil Proceedings

7. In order to determine the defendant’s application for leave, it is necessary to describe the civil proceedings he seeks to institute in some detail. I bear in mind, however, that consideration of the merits of the plaintiff’s claim is not part of the process of deciding the application for leave.

8. Mr Colquhoun seeks leave to institute proceedings in this Court against Mr Adam Bye, his former solicitor. The notice of motion filed on 10 June 2025 seeks the following order:

1. To seek leave of the court under the felons civil Proceedings Act 1981 to accept my Statement of claim for “Breach of Contract” [sic].

9. Two versions of a statement of claim have been provided to the Court. The substance of the claim is set out in the version dated 21 November 2024, which I will refer to as “the draft statement of claim”.

10. The draft statement of claim says:

1. I had a verbal contract with Mr Adam Bye to complete a “Scope Of Works” in an agreed timeframe. This was followed in writing between Jaimi Colquhoun and Adam Bye.

The scope of works were:

a. To complete my Grounds of Appeal within 4-6 weeks of him returning to work on around the 6/1/24.

b. To lodge 4 subpoenas for further particulars to Telstra, Premium Tyres, NSW police and St Vincent De Paul.

c. To obtain a second fire experts report after the expert attended the site.

d. Lodge a bail application within 8 weeks of himself returning to work on around the 6/1/24.

e. These works were to be completed in the agreed timeframe between the parties.

2. Due to Mr Adam Bye’s incompetence/lack of action once receiving the funds and this delayed the lodging of my appeal by 4 months.

I ask the courts for an order of $30,000 for funds paid to Adam Bye returned for breach of contract and compensation of 115 days in incarceration due to incompetence @ $172,500 this is calculated on the current rate paid by the Attorney-Generals Department for “wrongful imprisonment” @ $1500.00 per day. The $30,000 paid to Mr Adam Bye plus the $172,500.00 which equals $202,500.

11. The draft statement of claim prepared by Mr Colquhoun expressly pleads a breach of contract.

12. Taking the most favourable view of Mr Colquhoun’s application, it can be inferred from the draft statement of claim that, in addition to breach of contract, negligence is asserted. The sole allegation of negligence is that Mr Bye was negligent by reason of delay.

13. Mr Colquhoun relies on his affidavit of 30 April 2025.

14. In his affidavit, Mr Colquhoun says that Mr Bye was recommended to him by his barrister, Ms Cate Doosey, in December 2023. A telephone call then took place between Mr Colquhoun, who was incarcerated in the South Coast Correctional Centre, and Mr Bye. Mr Colquhoun says that:

An in depth discussion took place on the scope of works and what the appellant was requiring in relation to Mr Adam Bye [Auslex Law Group services] in what I required to complete my “Grounds of Defence”. My instructions were made clear in what I was seeking and how I wished to proceed.

15. As Mr Colquhoun had, by December 2023, been convicted of the charges set out above, I take it that, by “Grounds of Defence” he meant “Grounds of Appeal”.

16. Mr Colquhoun says, in his affidavit, that the scope of works were:

a. To complete my Grounds of Appeal within 4-6 weeks of him returning to work on around the 6/1/24.

b. To lodge 4 subpoenas for further particulars to Telstra, Premium Tyres, NSW police and St Vincent De Paul.

c. To obtain a second fire experts report after the expert attended the site.

d. Lodge a bail application within 8 weeks of himself returning to work on around the 6/1/24.

17. Mr Colquhoun says, in his affidavit, that the works were to be completed in the agreed timeframe between the parties. In oral evidence, Mr Colquhoun indicated that the dates were nominated by Mr Bye.

18. Mr Colquhoun indicates, in his affidavit of 22 November 2024, and in his evidence and submission before the Court, that, if he is granted leave to institute proceedings by the filing of the draft statement of claim, it will be his case that a verbal contract was entered into between him and Mr Bye in the course of their telephone conversation on 21 December 2023. That contract, Mr Colquhoun argues, included the timeframe set out in the draft statement of claim. Mr Colquhoun’s case will be that Mr Bye did not obey the timeframe and thereby breached the verbal contract, entitling Mr Colquhoun to the damages sought.

19. Mr Colquhoun says, in his affidavit of 22 November 2024:

38 The appellant at no time instructed Mr Adam Bye to give advice. The appellant was quite capable of the understanding of the question of law but was not in a position to compile his grounds of defence under his current circumstances at that time. It is to be noted the appellant did in the finish compile his grounds of defence and lodge it along with a bail application and subpoena application within 4 weeks of taking control of his own legal appeal…

By “grounds of defence”, I take it that Mr Colquhoun meant grounds of appeal.

20. Mr Colquhoun says that, after his conversation with Mr Bye and on the same day, Mr Bye sent Mr Colquhoun’s daughter a Costs Agreement which, he says “were not reflective of the previous verbal contract”. Mr Colquhoun’s daughter added (by typing words on the Agreement) a “timeframe and scope of works” into the contract, signed it and returned it to Mr Bye by email. Mr Colquhoun says that he was not provided with a copy of the agreement and did not sign it. However, it is clear that it was provided to his daughter, who was communicating with Mr Bye on his behalf. I will refer to this document as “the retainer”.

21. The retainer, with the additions made by Mr Colquhoun’s daughter, is before the Court. The additions, made without prior reference to Mr Bye, are as follows:

Note – Dad has advised that he would expect the above estimate to include the Supreme Court Bail Application.

Note – Dad has advised that he would expect their will be new evidence [sic]

Note – Dad has advised that he expects grounds for appeal to be lodged within 4 – 6 weeks from when you return in the New Year, and the bail application to be lodged at week 7 – 8.

22. Mr Colquhoun paid $30,000 into Mr Bye’s firm’s trust account on 22 December 2023.

23. Mr Colquhoun says that his daughter sent a draft “Grounds of Defence” [presumably grounds of appeal], prepared by Mr Colquhoun, to Mr Bye on Mr Colquhoun’s behalf. Another of Mr Colquhoun’s daughters sent the contact details for a “Fire Expert” that Mr Colquhoun wanted to undertake a site inspection.

24. Mr Colquhoun says that, before his conversation with Mr Bye on 21 December 2023, he had made enquiries of Morrison Law and ascertained that Morrison Law was prepared to act for him but could not start until the end of January 2024. Mr Colquhoun says that Mr Bye’s commitment to Mr Colquhoun’s timeline “was crucial in being awarded the contract and being paid the initial $30,000”.

25. Mr Colquhoun says that, after a conversation he had with Mr Bye over video link, Mr Bye asked for a further $30,000 for future work, including “representation of counsel in court”. Mr Colquhoun paid the further amount. This payment was made on 5 February 2024.

26. Mr Bye ceased acting for Mr Colquhoun in April 2024. Mr Bye sent Mr Colquhoun and his daughter an email on 10 April 2024, which said:

Dear Jaimi and Darren

When engaging a solicitor it is implicit that you are seeking legal advice. That is the entire basis of our office being retained to act for you.

A solicitor can not just blinding [sic] follow the instructions of a client without providing them with advice on the likely and potential outcomes.

If your instructions are that you do not want us to provide advice, then we will have to politely terminate our retainer. If you could confirm that is what you want to do I will have the files that we hold made available for collection next week.

Barrister Cate Doosey is otherwise finalising the advice on the grounds of appeal. Again, she has been engaged to provide merit advice on the grounds of appeal.

The fire expert has been engaged as you have instructed. I am waiting for them to confirm when a site visit can occur.

I have provided advice on multiple occasions that there needs to be a legal basis for the issuing of subpoenas and it is extremely rare for that to occur in CCA matters. To date in our discussions we have not established that we have such grounds, or that the subpoena would even be in any way helpful to your case.

If you could confirm if wish our office to cease acting I will issue a final invoice and make your files available.

Regards,

Adam Bye, Director.

27. Mr Colquhoun replied by letter emailed to Mr Bye on 14 April 2024 which said, in part:

Dear Adam,

Please accept this letter of dismissal. I signed a contract with you dated 22/12/23. You have failed to adhere to my instructions/timeline in the contract of acceptance. You have failed too [sic]:

1. The estimate would include a supreme court bail application.

2. It was expected that new evidence would be submitted.

3. It was expected that the grounds for appeal would have been lodged within 4-6 weeks from your return in the New Year, and the bail application to be lodged at week 7-8.

Please see attached contract. You were given another chance on 05/02/24 with a new timeline and instructions reiterated. You have failed to adhere to this second timeline. You have failed at following my instructions. You have failed to response to correspondence requesting updates in a timely manner or provide adequate updates on my case.

I now request a full refund of my monies. I request to pick up my files, supplied to you, on Tuesday 16/04/24 by 5pm.

…

28. In the letter, Mr Colquhoun provided his bank details and requested a refund of $60,000.

29. I note the reference by Mr Colquhoun, in the email of 14 April 2024, to Mr Bye being given “another chance on 05/02/24 with a new timeline and instructions reiterated”. This may be a reference to Mr Colquhoun’s instructions to Mr Bye, by email dated 5 February 2024, via one of his daughters, to engage a fire expert and start work on the brief “asap”. In the same email, Mr Colquhoun agreed to place the second tranche of $30,000 in Auslex’s trust account.

30. Two affidavits of Mr Baron Alder, Mr Bye’s solicitor, dated 30 July 2025 and 15 October 2025, were relied upon by Mr Bye. In the 15 October 2025 affidavit, Mr Alder provided evidence about the fees paid by Mr Colquhoun. The following tax invoices were issued to Mr Colquhoun from Auslex Law Group:

31. 5 March 2024, for professional fees and disbursements, total $21,598.00.

32. 19 March 2024, for professional fees and disbursements, total $3,036.00.

33. 16 April 2024, for professional fees and disbursements incurred, total $1,789.29.

Each of the invoices gives a description of the work charged in the invoice and the date upon which the work was performed. The amount charged for each task is provided.

31. Mr Alder provided a trust account statement from Auslex Law Group dated 13 June 2024, which showed that Mr Colquhoun paid $30,000 into that firm’s trust account on 22 December 2023 and again on 5 February 2024. The trust account statement also shows the payment of the invoices set out at [30] above from the funds in trust. The balance, after those payments, was $33,576.71.

32. Mr Alder, in his affidavit of 15 October 2025, says that Mr William Martyr, of Green & Associates, emailed Mr Bye on 21 May 2024 to tell him that he had taken carriage of Mr Colquhoun’s matter.

33. On 6 June 2024, Mr Bye sent an email to Mr Martyr requesting a written direction for the transfer of $33,576.71 from the Auslex Law Group’s trust account to Green & Associates trust account. In his email, Mr Bye said that the transfer of the funds would be on the following basis:

1. that funds will be used to pay the costs of barrister Cate Doosey’s initial merit advice. I understood her fee estimate was $15,000 plus GST.

2. That if any funds are owed to the fire Expert Rick McRae that these are also meet [sic] by you or from these funds. It is unclear since I terminated my retainer if that Expert has been paid directly by the client.

Again I am happy to release the funds to you provided the above is confirmed and that your firm otherwise indemnifies our office for the above payments.

34. Auslex Law Group was provided with an “Irrevocable Authority & Direction” (‘the Authority and Direction’), signed by Mr Colquhoun on 19 June 2024, authorising Mr Bye or his firm to transfer all monies held in trust for the benefit of Mr Colquhoun, to Green and Associates’ trust account. The Authority and Direction was expressly said to be for the purpose of ss 138 and 142 of the Legal Profession Uniform Law (NSW). The Authority and Direction also said:

I also hereby give notice that I irrevocably authorise and direct Green & Associates Solicitors to receive these funds in trust subject to a specific power in accordance with s 141 of the LPUL; namely to:

1. Pay $15,000.00 to Cate Doosey of Counsel, upon completion of her merits advice;

2. Pay $12,000.00 to Rick McRae, upon completion of his expert report; and

3. Pay $15,000.00 to Cate Doosey for settling expert letter(s) of instruction(s), drafting Submissions on Appeal and drafting Grounds of Appeal.

35. The transfer of $33,576.71 to Green & Associates took place on 20 June 2024.

36. I note that the respondent argued that, given that Mr Colquhoun had directly authorised the transfer of $33,576.71 to Green & Associates from Mr Bye’s firm’s trust account, which transfer took place on 20 June 2024, Mr Colquhoun’s claim could not include those funds and must be confined to the $26,423.29 paid on account of the three invoices set out at [30], above. I accept this submission.

37. On 6 December 2024, the New South Wales Court of Criminal Appeal (‘the CCA’) heard and refused Mr Colquhoun’s application for bail. The CCA heard Mr Colquhoun’s appeal on the same day. On 19 February 2025, the CCA dismissed Mr Colquhoun’s appeal against conviction.

38. In his affidavit, Mr Colquhoun raises issues about the veracity of the invoices referred to in [30], above, but these issues are not referred to in the draft statement of claim, which is the subject of the notice of motion. I note from documents provided by Mr Colquhoun that he initiated a complaint concerning the invoices with the Office of the NSW Legal Services Commissioner in 2024.

39. Mr Colquhoun set out his argument in relation to his allegation of breach of contract in his affidavit of 10 June 2025, and he reiterated this argument orally. He says, in his affidavit:

44 I am but a simple farmer that has run an electrical business to get through the droughts.

If a customer asks myself for a price to install a light in their house and I quote $200 and then the customer asks “can I do this in a fortnight” and I answer “yes”. Then it is simple. I have one fortnight to make this happen.

a. If the customer turns on the light and it doesn’t work then I cannot expect to get paid.

b. If this light installation is not completed in the fortnight and I have been paid upfront then I am expected to refund the customers monies in full. If the customer has paid up front, [which the customer never pays up front].

If for some reason some unforeseen problem arises in the contracted period of a fortnight preventing the completion of the light installation, then it is up to me to contact the customer explain my reasons and renegotiate a contract with agreed timeline. It is then open to the customer if they wish to proceed.

This is straight from Business Of Fair Trading guidelines.

This clearly scenario mirrors my dealings with Mr Bye and clearly did not happen with Mr Bye.

The contract of Timeline was ignored as the scenario of the timeline of the light installation was ignored.

The contract for “Grounds of Appeal”, Fire expert, subpoenas and Bail application was not completed just as the scenario of turning on the light switch and nothing happening.

It is within reason one cannot expect to be paid for works not completed.

This as the District Court Judge Obrien says [sic]

This as According to the standards of ordinary people.

I ask for my monies to be refunded in full plus damages of 4 months of jail due to incompetence.

It is clear once Mr Adam Bye from Auslex Law received $60,000 in funds he did absolutely nothing to advance the compiling and completion of the Appellants Grounds of Defence in the agreed “Timeframe” which caused the appellant of 4 months of incarceration for incompetence.

The respondent’s arguments – the breach of contract allegations

40. As I have said, the draft statement of claim relies on the alleged verbal contract Mr Colquhoun argues arose from his telephone conversation with Mr Bye on 21 December 2023. No reference is made, in the draft statement of claim, to the retainer signed by Ms Colquhoun on her father’s behalf on 22 December 2023 (with the additions set out in [21], above) or to the change to the timetable on 5 February 2024 referred to in Mr Colquhoun’s letter of 14 April 2024.

41. The respondent argued that the retainer constitutes the contract between the parties. The respondent argues that the additions to the contract inserted by Ms Colquhoun, even if they form part of the contract (which is denied), do not constitute binding terms, and certainly do not constitute essential terms. In Elisha v Vision Australia Ltd [2024] HCA 50; (2024) 99 ALJR 171, at [46], the High Court acknowledged that a contract may contain words which do not “have contractually binding effect”. The respondent submitted that Ms Colquhoun’s additions to the retainer were an “expression of expectation” and were not “words of contractual obligation”.

42. The respondent submitted that clause 2 of the retainer is inconsistent with the assertion that the timeline was a term of a contract between the parties because it refers to the solicitors’ hourly rates and says that it was not possible to provide an accurate estimate of the total costs, indicating that there was uncertainty as to the time needed to undertake the work. Further, clause 2 says that Stage 1 of the process of acting would involve obtaining a barrister’s view “regarding the merits of your matter for an appeal”. It is implicit that the timing of the lodgement of any appeal would depend upon the timing of the receipt by Mr Bye of a barrister’s opinion.

43. The respondent engaged with Mr Colquhoun’s argument that a verbal contract arose solely from the telephone conversation on 21 December 2023 and that it was a term of that agreement that Mr Bye comply with the timeframe set out in the draft statement of claim. The respondent’s written submissions says:

30. … The verbal term contended for by the plaintiff would work a commercial nonsense or inconvenience. The commercial purpose of any agreement between the plaintiff and the defendant was for the defendant to act for him in respect of criminal appeal proceedings. This object is not amenable to strict timetables for the completion of work. The preparation and progress of a criminal appeal proceeding requires (as was contemplated in the Retainer), review of trial proceeding materials, briefing of and advice from counsel, advice to the plaintiff as to prospects, and then filing of Court documents. These matters depend on factors outside the control of a party’s legal representatives and are not amenable to completion within a strict timeframe.

31. In addition, as regards the Retainer Claim, the plaintiff has no entitlement to a refund of $30,000.

32. The only basis on which the plaintiff asserts he is entitled to repayment of $30,000 is that the defendant did not perform the scope of works within the alleged timeframes. For the reasons set out above, the Timeframes did not impose an obligation on the defendant. Any alleged failure to meet the defendant’s expectation does [not] entitle the plaintiff to a refund for legal fees incurred.

33. Similarly, insofar as the plaintiff alleges a verbal agreement in respect of timeframes, in the context of the Retainer, the effect of a lapse of time would not prevent the defendant from performing his obligation to perform the scope of the works. As a result, time would not be of the essence, and therefore would not cause the plaintiff any loss or damage at all and, relevantly, would not warrant repayment of any amount paid toward professional fees and disbursements actually incurred.

44. The respondent submitted that the plaintiff’s claim in breach of contract is unarguable and that there are, therefore, no prima facie grounds for the proceedings.

45. The respondent submitted that the requirement for prima facie grounds means that the Court must be satisfied that Mr Colquhoun has an arguable case on his draft statement of claim, and a case that is not totally hopeless (SW v State of New South Wales [2010] NSWSC 966 at [16]). The respondent acknowledged that the “statutory gateway” imposed by ss 4 and 5 of the Act is not an overly demanding one.

Consideration of the application for leave in relation to the breach of contract allegations

46. Mr Colquhoun, in his draft statement of claim, alleges that the contract he relies upon came into existence in the telephone conversation of 21 December 2023 and was “followed in writing”. Mr Colquhoun sets out five items which he alleges form the “scope of works” for the contract. A time frame for the completion of the “Grounds of Appeal” and the filing of a bail application are alleged (see [10], above).

47. Mr Colquhoun’s argument ignores the provisions of the retainer which are inconsistent with the allegation that it was agreed that the time frames were a term of the contract. Mr Colquhoun’s argument also ignores the later change to the timeframe on 5 February 2024.

48. The principles applicable to the interpretation of a contract are set out in Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others [2022] HCA 39 by Gordon J at [43]-[44]:

Principles

43 The rights and liabilities of parties under a contract – whether oral, in writing, or partly oral and partly in writing – are determined objectively. The concern is "not with the real intentions of the parties, but with the outward manifestations of those intentions". As this Court said in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd:

It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean.

And where the contract is commercial, it is necessary to ask what reasonable persons engaged in the respective businesses of the parties would have understood the words and conduct to mean.

44 As this Court held in Toll, a person who signs a contractual document conveys a representation to a reasonable reader of that document that the person has read and approved its terms or is willing to take the chance of being bound by its contents. If the document on its face appears to be a complete contract, it will contain the whole of the contractual terms. Extrinsic evidence cannot be adduced to subtract from, add to, vary or contradict those terms, except in limited circumstances. And a term will be implied only if, among other things, it is necessary to make the contract work.

49. Where two parties discuss a contract in the morning, consider a written contract sent from one to the other on the same day and arrange for that contract to be signed, an argument that the terms of the contract between them are confined to what took place in their discussion, without reference to the signed document, cannot succeed. There can be no doubt that Ms Colquhoun was acting on her father’s behalf and with his permission in her communications with Auslex and Mr Bye.

50. A reasonable person, considering the retainer and Mr Colquhoun’s account of the discussion by telephone on 21 December 2023 would bear in mind that the legal practitioner, and the legal practice involved, were bound by the requirements of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (“the Conduct Rules”).

51. The Conduct Rules support the respondent’s argument at [43], above. Rules 3.1 and 7.1 say:

3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

…

7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.

52. A solicitor in practise may not accept instructions to perform a task or series of tasks dictated by their client. A solicitor is required to provide advice which takes into account the context of the matter.

53. Even if it is accepted that Mr Colquhoun wished Mr Bye to complete tasks a. to d. in the draft statement of claim within his timeframe, a reasonable person would not interpret the conversation or the retainer as imposing a contractual obligation upon Mr Bye to do so because it would be inconsistent with the invariable practice of a solicitor in accordance with the Conduct Rules. A reasonable person would also realise that the drawing of grounds of appeal would be informed by counsel’s advice, which was contemplated in the retainer. The drawing of the grounds of appeal may also be informed by the report of the fire expert, in relation to whom no timeline was mentioned.

54. There is no prospect that the timeframes Mr Colquhoun nominated would be found to be an essential term of his contract with Mr Bye or Auslex.

55. The comparison Mr Colquhoun draws between Mr Bye acting for him as a solicitor and Mr Colquhoun contracting to install a light in a house is not apposite. It overlooks the duties a solicitor has to the Court and to the administration of justice and the obligations a solicitor has, beyond the instructions of their client. It also does not address the obligations an electrician has, beyond their client’s instructions, to comply with applicable AS/NZS standards and all applicable regulations.

56. For all of these reasons, it is apparent on the material before me that the claim based on allegations of breach of contract is not arguable and therefore lacks a prima facie ground within the meaning of s 4 of the Act. The claim based upon allegations of breach of contract will not be given leave.

The respondent’s arguments – abuse of process

57. With respect to abuse of process, the respondent relied upon Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258 at [38] - [41] (“Hana”):

38. The doctrine of abuse of process is also informed by the principle of finality of litigation, in that if finality is violated this could both prejudice the other party to that litigation and bring disrepute to the administration of justice by throwing doubt on the conclusiveness of a court’s determination.

39. In D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12, Gleeson CJ, Gummow, Hayne and Heydon JJ said of the doctrine of finality:

[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet … finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. …” (footnotes omitted)

40. Their Honours also observed that to the extent that there are “qualification[s]” to the rule against reopening controversies, such as the appeal process and the “fresh evidence rule”, these exceptions still abide by the concept of finality (at [35]).

41. Abuse of process is not confined to instances where a party seeks to relitigate a positive finding of fact or law, but also covers instances where an issue was raised (but not necessarily determined) or should have been raised (and therefore certainly was not determined by reason of its omission) in those earlier proceedings. So much was determined by the High Court in Tomlinson:

[26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.” (footnotes omitted)

58. The respondent submitted that, as a result of the CCA’s decision to refuse Mr Colquhoun’s bail application and his appeal, Mr Colquhoun could not presently succeed in his claim for a daily payment of $1,500 for four months of his incarceration. That claim relies on the assumption that, had Mr Bye lodged an appeal or a bail application on behalf of Mr Colquhoun in accordance with the timeframe set out in the draft statement of claim, Mr Colquhoun would have been released from prison for at least four months. Now that both the appeal and the bail application have failed, Mr Colquhoun’s claim cannot presently be made good. The respondent submitted that Mr Colquhoun’s argument amounted to an impermissible collateral challenge to the decision of the Court of Appeal with respect to bail or conviction, which amounts to an abuse of process.

59. Mr Colquhoun responded by saying that he has requested a pardon, or the overturning of his conviction, from the Attorney-General of New South Wales, and it is his understanding that his request is under consideration. There is no evidence of this application, and I note that there is no power in the executive or the legislature to overturn a conviction. The Governor may grant a pardon on the advice of the Executive Council, but the exercise of this prerogative is rare (see ss 76 and 77 of the Crimes (Appeal and Review) Act 2001 (NSW)). However, this matter falls to be decided on the basis of the circumstances as they are at present. Presently, none of the period of Mr Colquhoun’s present incarceration is attributable to any of the conduct alleged against Mr Bye, even taking Mr Colquhoun’s case at its highest. In the event that a pardon were to be granted to Mr Colquhoun in the future, it is not apparent how any period of Mr Colquhoun’s incarceration could at that future time be attributed to Mr Bye’s handling of the matter.

60. The respondent argued that the part of Mr Colquhoun’s proposed proceedings which seek damages for four months incarceration constitutes an abuse of process because it seeks the reconsideration of the issue of whether Mr Colquhoun ought to be incarcerated, which has been decided by the CCA and should not be considered again by this Court in this or any other context.

61. I agree that the portion of the claim set out in the draft statement of claim which seeks the award of damages calculated on the basis of a daily payment against Mr Bye for a portion of the period of Mr Colquhoun’s incarceration cannot succeed. There is no prima facie ground for the seeking of that relief. It would also be an abuse of process on the basis set out in Hana (see [57], above).

62. That part of Mr Colquhoun’s draft statement of claim which seeks damages for 115 days of incarceration will not be given leave under s 4 of the Act.

The respondent’s arguments – alleged negligence and the advocate’s immunity from suit

63. The respondent argued that the doctrine of advocate’s immunity applies to the allegations against Mr Bye.

64. In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR 755, at [85] – [86] the High Court endorsed the proposition that “an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court” and, further, the immunity extends to “work done out of court which leads to a decision affecting the conduct of the case in court”.

65. In Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 at [35] and [52], the High Court said:

35. … where a final order has been made resolving litigation, a claim that "but for the advocate's conduct, there would have been a different result" is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are "consequences flowing from ... a lawful result ... lawfully reached." The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully.

…

52. … The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity. …

66. The respondent submitted that Mr Colquhoun’s argument is that Mr Bye failed to perform work within the time frame referred to in the draft statement of claim and that, had Mr Bye complied with that time frame, the result would have been Mr Colquhoun’s earlier release from custody. This implies that the decision of the CCA with respect to bail or conviction would have been different had Mr Bye’s conduct been different. Advocate’s immunity is therefore applicable and bars Mr Colquhoun’s negligence claim.

67. I agree with the respondent’s argument. To the extent that Mr Colquhoun’s claim seeks to establish that any period of his incarceration is attributable to Mr Bye’s alleged conduct, it must fail on the basis that Mr Bye is protected by advocate’s immunity, in addition to lacking a prima facie ground and amounting to an abuse of process.

Conclusion

68. The claims set out by Mr Colquhoun in his draft statement of claim are not eligible to be granted leave under s 4 of the Act, for the reasons set out above.

69. The following order will issue:

70. The applicant’s application in the Notice of Motion filed on 10 June 2025 for leave to institute civil proceedings against the respondent in accordance with the statements of claim dated 22 November 2024 and 5 March 2025 is refused.

71. I will hear the parties as to costs.

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Amendments

20 March 2026

20 March 2026 - Paragraph [69] - Order (1) amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule") to reference both statements of claim.