Jadwan Pty Ltd v Rae & Partners

Jadwan Pty Ltd v Rae & Partners - [2018] FCA 968 - FCA 2018 case summary — Zoe

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Table of contents 1 INTRODUCTION [1] 2 CASE OVERVIEW [5] 3 SUMMARY OF FINDINGS [27] 4 BACKGROUND [42] 5 WITNESS CREDIBILITY AND MEMORY [110] 5.1 Mr Wicks [112] 5.1.1 Mr Wicks' undue certainty [130] 5.2 Mrs Joan Alexander [140] 6 THE CONTROLLING MIND OF JADWAN [147] 7 DID EITHER JADWAN OR MR WICKS HAVE PRIOR KNOWLEDGE OF NEW LEGISLATION? [158] 7.1 The directors of Jadwan [161] 7.2 Jadwan's directors blind to the threats facing them [175] 7.3 Criticism of Jadwan's management of Derwent Court not a product of ill will [189] 7.4 Mr Wicks' knowledge [198] 8 JADWAN'S CASE AGAINST THE FIRST RESPONDENT (7 FEBRUARY TO 1 JULY 1993) [220] 8.1 Evidence of Ms Julie Alexander regarding meeting of 26 February 1997 [260] 8.2 Evidence of meeting between Mr Wicks and Mr Alexander on 8 April 1997 [276] 8.3 Findings [304] 8.3.1 No breach in any event [305] 9 JADWAN'S CASE AGAINST THE SECOND RESPONDENT (2 JULY TO 12 SEPTEMBER 1997) [310] 9.1 Jadwan's problems mount [320] 9.2 Jadwan decides to "get out" [330] 9.3 Notice of intention to revoke Derwent Court's approval [344] 9.4 Mr Wicks learns of revocation [346] 9.5 Jadwan expresses concern about the cost of redundancies and seeks approval to sell Derwent Court's bed licences [349] 9.6 Fast moving events overlap: Mr Wicks briefs counsel - Jadwan accepts Commonwealth's offer to meet the cost of redundancy payments [356] 9.7 Mr Wicks raises issues [362] 9.8 Jadwan tells Mr Wicks it accepts Derwent Court's closure - sale of bed licences given priority [372] 9.9 Mr Wicks tells Mr Porter that Jadwan accepts Derwent Court's closure - Jadwan engages a Melbourne solicitor without informing Mr Wicks [387] 9.10 Mr Wicks acts on Mr Hogan's view that an injunction should be sought [400] 9.11 Derwent Court's approval as a nursing home is revoked [429] 9.12 Consideration [442] 9.12.1 Jadwan had no plans to relocate [442] 9.12.2 Mr Wicks' initial retainer [448] 9.12.3 From 21 July 1997 Mr Wicks' instructions were no longer limited [454] 9.12.4 A solicitor exercising skill and care in Mr Wicks' position would have identified the existence and relevance of the new legislation [457] 9.12.5 Mr Wicks did not breach his duty by failing to advise Jadwan to commence proceedings to challenge Ms Halton's notice of intended revocation [471] 9.12.5.1 Not a decision [471] 9.12.5.2 No grounds to challenge conduct for the purpose of decision [476] 9.12.6 Mr Wicks failed to exercise reasonable care and skill when he advised Jadwan that facilitating Derwent Court's residents to move out had no potential to harm Jadwan's interests [493] 9.12.7 If Jadwan had been competently advised by Mr Wicks it nonetheless would not have retained Derwent Court's residents beyond 6 August 1997 [510] 9.13 Jadwan would have made a rational financial choice [527] 9.14 Jadwan had missed its chance to sell its bed licences as a result of procrastination [546] 9.15 Department offers to meet cost of redundancies only after Jadwan fails to sell its bed licences [554] 9.16 Would Jadwan later have brought proceedings? [572] 9.16.1 Threshold reason to reject Jadwan's case [577] 9.16.2 Jadwan would not have sought to persuade its former residents to return in order to have brought proceedings to set aside the sanctions decision [585] 9.17 Jadwan fails on the balance of probabilities to establish that it could have obtained orders setting aside the sanctions decision [591] 9.17.1 No inference drawn by reason of consent order made in 2005 [591] 9.17.2 Application out of time [599] 9.17.2.1 Delay and sufficiency of explanation for the delay [603] 9.17.2.2 The merits on an impressionistic basis [607] 9.17.3 Jadwan fails to establish on balance of probabilities an interim injunction would issue [623] 9.17.4 Jadwan fails to establish on the balance of probabilities that an order that the sanctions decision was void ab initio would be made [628] 9.18 Jadwan's loss of business case [631] 9.19 A tactic to persuade the Commonwealth [651] 9.20 Conclusion [667] 10 JADWAN'S CASE AGAINST THE THIRD RESPONDENT (12 SEPTEMBER 1997 ONWARDS) [668] 11 JADWAN'S CASE AGAINST THE FOURTH RESPONDENT [684] 12 JADWAN'S CASE AGAINST THE FIFTH RESPONDENT [706] 13 SUMMARY [734]

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CASE OVERVIEW 5 Derwent Court Nursing Home (Derwent Court) is a Victorian era, heritage listed, two-story grand home to which a ground level extension was added. It is located only a short distance from central Hobart. From 1984 until mid-1997 Jadwan Pty Ltd (Jadwan) owned and operated Derwent Court as a nursing home. It received subsidies from the Commonwealth for its residents. In 1997 its Commonwealth approval as a nursing home was revoked. It thereupon became ineligible to receive subsidies for resident care. Derwent Court's residents were relocated to other nursing homes and it ceased to provide nursing home care. It has not since operated as a nursing home. 6 Jadwan is a corporate trustee. It is the trustee of the J.G. & J.I. Alexander Family Trust. Its directors are, and at all relevant times were, members of the Alexander family: Mr Jeff Alexander (now deceased); Mrs Joan Alexander; Ms Julie Alexander and Mr Wayne Alexander. Jadwan had purchased Derwent Court to operate as a nursing home. It remains the owner of Derwent Court which it now leases to a third party unconnected to these proceedings. 7 Derwent Court's resident mix had included a high proportion of vulnerable persons with dementia. Most were accommodated in shared rooms, the largest of which accommodated seven residents. Non-ambulant residents were, until the events described below occurred, accommodated upstairs on the second floor. 8 In its Second Further Amended Statement of Claim Jadwan advances claims in negligence against three Tasmanian firms of legal practitioners; the First, Second and Third Respondents, and the executrix of the estate of a Melbourne based solicitor Mr John Hogan; the Fourth Respondent. 9 The liability of each of those Respondents is said by Jadwan to have arisen by reason of their respective failure as solicitors to advise their client to take any action in respect of the decision or purported decision made by a delegate of the then Minister for Family Services (the Minister) pursuant to s 44(2) of the National Health Act on 6 August 1997 to revoke Derwent Court's approval as a nursing home under that Act. 10 Jadwan, inter alia, asserts that actions taken by the Commonwealth in accordance with that purported decision resulted in Jadwan losing its entitlement to Commonwealth funding for the residents of Derwent Court and prevented it transitioning to become an approved provider of aged care services on the coming into force of the Aged Care Act. 11 The First, Second and Third Respondents are proceeded against on the basis that they were each, sequentially in time, retained by Jadwan as its solicitors. The First Respondent was retained on 7 February 1997 when its then employee solicitor, Mr Stephen Wicks, accepted Jadwan's instructions. Mr Wicks was later re-engaged by Jadwan when he, in turn, became an employee of the Second (as from 2 July 1997) and Third (as from 13 September 1997) Respondents. 12 Mr Hogan, whose executrix is the Fourth Respondent, was a Melbourne based solicitor. He was engaged on 28 July 1997 by Jadwan on the basis that he possessed specialist skills in relation to the law applying to the regulation of nursing homes. 13 Jadwan alleges that, in summary, but for the First, Second, Third and Fourth Respondents each failing in their respective duties as solicitors, they would have identified the significance of the terms of both the Aged Care Act and the Consequential Provisions Act. Had they not failed in their respective duties Jadwan contends that they each would have advised Jadwan of the urgent necessity of it, inter alia, seeking an injunction to set aside the Minister's decision to revoke Derwent Court's approval so as not to forfeit Jadwan's entitlement to transition as an approved provider in respect of Derwent Court on 1 October 1997. Jadwan would have given instructions in accordance with that advice. An injunction would have been granted. 14 Jadwan further alleges that had the First, Second, Third and Fourth Respondents not failed in their respective duties they would have advised Jadwan that it needed to ensure that at least one Commonwealth funded resident would need to remain at the nursing home until 1 October 1997 to prevent Jadwan forfeiting its entitlement to become an approved operator of Derwent Court beyond that date. It asserts that Jadwan could and would have taken that action. 15 Jadwan alleges that a barrister briefed by Mr Wicks to advise and act for Jadwan also failed to provide it with competent advice. Jadwan pleads that it had intended to join that barrister, Mr David Porter QC, as a respondent to these proceedings. He would have become a party to these proceedings but for the negligence of the Fifth Respondent. The Fifth Respondent had failed to ensure Jadwan's writ was served on Mr Porter before it expired. 16 Jadwan posits that a grant of an injunction coupled with Jadwan taking steps to ensure that at least one resident remained at Derwent Court would have enabled it to continue to operate its nursing home business, or, on Jadwan's worst case scenario, permitted it to have sold its bed licences to another operator. 17 Because it was not provided with competent advice and did not take those actions, Jadwan had suffered the loss of its chance to obtain those outcomes. It was entitled to be compensated for that loss by an award of damages. Damages were to be assessed on the basis that Jadwan would have taken advantage of the most commercially advantageous of the options that the evidence would establish Jadwan had been willing to pursue and were practically available to it. 18 On behalf of Jadwan its counsel, Mr Pearce SC, advanced three "scenarios" for the Court to establish the value of Jadwan's lost chance. 19 The first of those scenarios was that if Jadwan had been given competent advice, it would have sought and obtained an injunction in the Federal Court of Australia in 1997 staying the operation of the decision revoking Jadwan's accreditation as an approved provider of nursing home care pursuant to s 44(2) of the National Health Act (the revocation decision) and, in due course, orders setting it aside. Jadwan would have continued to operate its nursing home at Derwent Court until 1 October 1997 when it would have transitioned to become an approved operator of Derwent Court under the Aged Care Act. Jadwan would have continued to operate Derwent Court (with necessary improvements as required to meet the higher standards of care under that Act) with an ongoing entitlement to Commonwealth funding for 51 residents from then onwards to the present. 20 Jadwan ultimately abandoned reliance on that scenario. On 14 August 2017 its solicitor wrote to the Court and to the Respondents as follows: The Applicant's case for damages was opened at trial on the basis of 3 alternative hypothetical scenarios if Derwent Court's approval as a nursing home had not been revoked, or if the revocation had been suspended or set aside, as follows: A. that Jadwan would have continued to operate a nursing home in the existing building; B. that Jadwan would have built a new 51 bed facility on a greenfield site in Hobart and operated the nursing home there; C. that Jadwan would have sold its 51 bed licences in late 1997. In light of the evidence at trial, we are now instructed to abandon scenario A above. 21 Jadwan's second scenario was that had it received competent advice, the company would have continued to operate Derwent Court and become an approved operator under the Aged Care Act but it would have continued to operate Derwent Court as a nursing home only for a transitional period. During that transitional period it would have purchased land and invested to construct a new nursing home to replace Derwent Court. Jadwan had both the financial capacity and will to undertake such an investment. It would have constructed a modern 51 bed facility on a greenfield site in or around Hobart. Once those new facilities were available Jadwan would have ceased to operate Derwent Court as a nursing home but would have continued as an approved provider of nursing home services from its new premises with an ongoing entitlement to Commonwealth funding for its 51 residents. 22 Jadwan's third scenario, not then pleaded but identified in Mr Pearce's opening, was advanced against the contingency that the Court might be unpersuaded of the viability of its preferred scenarios. Jadwan's third scenario posits that had it been provided with competent advice it would have obtained an injunction to stay the revocation decision. Having secured such an injunction it would have "got out" of the nursing care industry in Tasmania. However, its exit then would have been on more advantageous terms. Nursing home bed licences had marketable value. If Derwent Court's approval as a nursing home had remained in place the Commonwealth would have permitted Jadwan to sell, and it would have been able to have sold Derwent Court's 51 bed licences. 23 Jadwan proceeds against the Fifth Respondent for the loss of its chance to have joined Mr Porter directly in these proceedings. It asks the Court to value that lost chance on the basis that but for the negligence of the Fifth Respondent, Jadwan would have obtained judgment for damages against Mr Porter on the same premise as it pleads against its former solicitors. There should be no discount to that amount for the uncertainty of that hypothetical litigation - while not a party the evidence in these proceedings would entitle the Court to find Mr Porter's responsibility for having caused Jadwan to lose the chance to secure a better outcome as identified in its three scenarios had been clearly established. 24 Also pleaded against each save the Fourth Respondent is a contention that the lawyers who had acted for Jadwan were negligent in failing to advise Jadwan that it had grounds to and should challenge the Commonwealth's earlier decision made on 3 February 1997 to impose financial sanctions on Derwent Court pursuant to s 45E of the National Heath Act (referred to by counsel as the "sanctions decision"). As a result of those sanctions Jadwan had been denied entitlement to claim payments from the Commonwealth in respect of any new resident admitted to Derwent Court after the date of that decision. 25 That pleading, as a distinct basis of liability, was given little attention in the course of the trial. Nonetheless at [166] to [168] of Mr Pearce's closing written submissions, the Applicant pressed the Court to make findings that Mr Wicks and Mr Porter had breached their respective duties to Jadwan by failing to advise or act in respect to the earlier sanctions decision in addition to, or in the alternative of, the case Jadwan had advanced regarding its legal advisers' alleged breaches of duty to act or advise in respect of the revocation decision and that Jadwan had suffered loss sounding in damages for that reason. 26 For reasons the Court provides it is satisfied that Jadwan cannot establish those propositions.

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SUMMARY OF FINDINGS 27 The Court sets out its reasons later. Because they are lengthy, it is convenient to summarise the conclusions it has reached before turning to the details. The summary is included as guidance - it omits reasoning and is not intended as independent findings. 28 Mr Wicks was a relatively young and inexperienced lawyer at the time he was retained by Jadwan after Derwent Court had been sanctioned by the Commonwealth and Jadwan had been warned that Derwent Court's approval as a nursing home might be revoked unless it took necessary remedial actions. Mr Wicks lacked the experience appropriate for undertaking what became a challenging task. As an employed solicitor Mr Wicks' employers were vicariously liable for any losses caused by his negligence. 29 Having regard to the evidence concerning his instructions, the timing of events and the relationship between the parties, I have concluded that the Applicant fails to prove that Mr Wicks had the duties Jadwan has pleaded during the period he was employed by the First Respondent. 30 By contrast I have concluded that Mr Wicks became subject to those duties after becoming an employee of the Second Respondent. In breach of his duty Mr Wicks failed to exercise reasonable care and skill in providing legal advice to Jadwan after it had been given notice by a delegate of the Minister, Ms Jane Halton, of her intention to revoke Derwent Court's approval as a nursing home. However I am not satisfied that such failure on his part caused Jadwan to lose a chance to have continued its business at Derwent Court while it built a new 51 bed facility on a greenfield site in Hobart and then operated the nursing home in those new premises or to have sold its 51 bed licences in late 1997. 31 The evidence before the Court establishes that, in the circumstances then facing Jadwan, its directors had no intention of continuing to operate a nursing home at Derwent Court while building on a greenfield site. Jadwan's directors had repeatedly shown reluctance to commit to any new expenditure to improve Derwent Court unless guaranteed future funding. Jadwan had already made a decision to "get out" of operating Derwent Court. It knew that the Commonwealth officials responsible for the regulation of nursing homes had exhausted their patience with Jadwan's management of Derwent Court. The Department of Health and Family Services (the Department) had concerns including, but not limited to, the risk that fire posed to Derwent Court's residents. Jadwan knew the Tasmanian Fire Service had "gone sour" on the idea of allowing Jadwan to continue to operate Derwent Court as a nursing home without expensive major works while it built new premises. Even assuming Derwent Court might have taken steps to obtain the benefit of the Consequential Provisions Act I am satisfied that Jadwan's directors would not have committed to the large capital expenditure involved in buying land and building a new nursing home. In the findings I have made, Jadwan would have had to operate Derwent Court with fewer residents than financially viable for the period it would have taken them to construct any new premises, without an assurance from the Department that it would be able to maintain its approval under the higher standards that would be required by the Aged Care Act. I am satisfied no such assurance would have been forthcoming. 32 I am satisfied that the Commonwealth would have been unfavourably disposed to Jadwan continuing to accommodate nursing home residents at Derwent Court on any ongoing basis. Having regard to what Jadwan knew about the challenges it was facing and the cost and time it would take to build new premises, even if Jadwan had received the advice Jadwan pleads Mr Wicks should have provided it with, I have concluded that Jadwan would not have pursued that course and would have continued to focus upon getting out of Derwent Court with, if possible, Commonwealth approval for it to sell its bed licences. 33 It is uncontentious that there was a market for such bed licences, subject to Commonwealth approval. Jadwan had been offered a window of 48 hours as its last chance to sell the licences but it had been unable to take advantage of that opportunity. 34 By the time Mr Wicks' instructions evolved to oblige him to give Jadwan the advice he ought to have, but failed to, it was already too late for any legal proceedings that Jadwan might have brought as a "tactic" to be effective to influence the Department to yield to that request. 35 Jadwan, on its own initiative and without legal advice, had already sought and obtained a commitment from the Commonwealth that it would meet the cost of redundancies for Jadwan's employees at Derwent Court. Jadwan had dismissed all of Derwent Court's nursing home staff. It had accepted that Derwent Court's residents had to be relocated. 36 A more than token challenge to the Department's action in revoking Derwent Court's approval as a nursing home as might have put pressure on the Commonwealth to allow Jadwan to sell its bed licences would have had to be accompanied by resolve on Jadwan's part to continue to provide nursing home care for such of Derwent Court's already diminished number of remaining residents as it could persuade not to leave. Doing so would put at risk the Commonwealth's undertaking to fund Derwent Court's redundancy payments. 37 The unimpaired market value of 51 bed licences in Tasmania at the relevant time was in the order of $612,000. The amount the Commonwealth had undertaken to meet as the cost of redundancies was of the same order. I have found that Jadwan would not have pursued a strategy inconsistent with accepting Commonwealth funding for staff redundancies which could not guarantee it (even if successful) anything more than a roughly equivalent return. 38 For that reason Mr Wicks' failure to provide the advice he ought to have in the period he was an employee of the Second Respondent did not cause Jadwan to lose a chance of selling its bed licences. 39 I have concluded that Jadwan did not lose a chance to recover its position after Mr Wicks was in turn employed by the Third Respondent. 40 The Fourth Respondent was a Melbourne based solicitor (now deceased). He was identified by Jadwan as having specialist skills in relation to the law applying to the regulation of nursing homes. The Fourth Respondent was retained by Jadwan only after the revocation decision had been made - and only on a limited basis that he would advise as to how Jadwan might sell its bed licences. The advice he provided Jadwan and Mr Wicks (then an employee of the Second Respondent) was to seek an injunction. His advice was accepted. His retainer as a consultant was then terminated. He was not further consulted. Only after his retainer had come to an end did Jadwan act on Mr Wicks' advice that proceedings for an injunction pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) were not required. I have concluded that Jadwan has not established its cause of action against the Fourth Respondent. 41 The Fifth Respondent was a firm of solicitors. It does not dispute that it was negligent in failing to serve a writ on Mr Porter in time. Mr Porter is absent from these proceedings because of that negligence. The Fifth Respondent therefore accepts that if Mr Porter was himself negligent and Jadwan can establish that his negligence caused it to lose a chance to have successfully brought proceedings against him then, to the extent that loss can be valued, the Fifth Respondent is liable to Jadwan in damages. However Jadwan has not established that Mr Porter failed to exercise reasonable care and skill as counsel briefed to provide legal advice to it. I reject that I am entitled to find on the balance of probabilities that Mr Porter gave Mr Wicks advice that an injunction need not be pursued. For that and other reasons the Court rejects that it should find that the admitted negligence of the Fifth Respondent in failing to serve Mr Porter before the writ became stale caused Jadwan to lose the chance to have obtained a judgment sounding in damages against Mr Porter.

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BACKGROUND 42 The Court's reasons require an understanding of this matter's complex earlier history, including previous litigation Jadwan had unsuccessfully undertaken. Before turning to the evidence as it relates specifically to the matters in dispute in these proceedings, I set out an uncontentious survey of that background. 43 In 1984 Jadwan sought and obtained Commonwealth approval pursuant to the National Health Act to operate Derwent Court to provide accommodation for 51 nursing home residents. As Derwent Court's proprietor, Jadwan received a subsidy from the Commonwealth for each of its residents' care. Most of Derwent Court's residents were frail aged persons with high dependency needs. Many suffered dementia. A considerable number were non-ambulant. Others required assistance with their mobility. 44 Few, if any, of the residents accommodated at Derwent Court had sufficient financial means to meet, unassisted, the full costs of their nursing home care. Jadwan's ongoing economic viability as the operator of Derwent Court accordingly was dependent upon it retaining Commonwealth funding for its residents. 45 I adopt the following summary of the law as then applicable to the operation and funding of nursing homes from the reasons of North J in Jadwan Pty Ltd v Secretary, Commonwealth Department of Health & Aged Care [2002] FCA 1052; (2002) 71 ALD 520 (Jadwan No 3) at [4]: The general scheme under the [National Health Act] was that a person could seek an approval in respect of premises to be used for the conduct of a nursing home. The approval was subject to conditions imposed by the statute, including a limitation on the number of beds that could be provided, and a condition that the nursing home would comply with the standards determined by the Minister. The proprietor of the nursing home was entitled to receive a benefit paid by the Commonwealth in respect of approved nursing home care provided to residents. There were sanctions applicable in the event that the conditions attaching to the approval were not met. One sanction was that the Minister could make a declaration of non-compliance. The consequences of making such a declaration was that the Commonwealth benefit was not payable in respect of persons admitted after the date of the declaration. A more severe sanction was the revocation of the approval. This general scheme can be seen in the following relevant provisions: "40AA (1) The proprietor of a nursing home may apply, in the authorized form, for approval of the premises occupied by the nursing home as an approved nursing home. … (6) The approval of premises as an approved nursing home is subject to the following conditions: (a) a condition that the number of beds available in the nursing home for qualified nursing home patients … will not at any time exceed such number of beds as is determined from time to time by the Minister as the approved number of beds in relation to the nursing home. … (ck) a condition that the nursing home care provided in the nursing home satisfies the standards determined under section 45D; … 45D The Minister may, by written notice, determine standards to be observed in the provision of nursing home care in approved nursing homes. … 47A(1) Subject to this Part, Part VC and Part VD, the proprietor of an approved nursing home in respect of which this section applies is entitled to receive benefit in respect of each approved nursing home patient in the home for each day on which the patient receives nursing home care in the home. … 46A … a person is an approved nursing home patient on a day if: (a) the person is a qualified nursing home patient on that day; 4 … 'qualified nursing home patient' means a person who occupies a bed in an approved nursing home for the purpose of nursing home care, … … 45E(1) If the nursing home care provided in an approved nursing home does not satisfy the standards determined under section 45D, the Minister may, by written notice served on the proprietor of the nursing home, declare that the home does not satisfy those standards. (2) Where a declaration is in force under subsection (1), the Minister may, by written notice served on the proprietor of the nursing home, determine that, while the declaration remains in force, Commonwealth benefit is not payable to the proprietor of the nursing home in respect of a patient admitted to the nursing home after the making of the determination. … 44(1) The Minister may, at any time, review the approval of a nursing home under this Part. (2) If the Minister considers that: … (b) a condition applicable to the approved nursing home has not been complied with; the Minister may vary the nature of the approval or revoke or suspend the approval as the Minister considers justified in the circumstances of the case. (2A) The Minister may give the proprietor of the approved nursing home written notice of his or her intention to vary the nature of the approval or revoke or suspend the approval as the case may be." 46 In common with all approved nursing homes, Derwent Court was the subject of semi-regular inspections by Standards Monitoring Teams regarding the quality of the care provided. The standards that approved nursing homes were required to meet were those determined under s 45D of the National Health Act: Standards for nursing home care The Minister may, by written notice, determine standards to be observed in the provision of nursing home care in approved nursing homes. 47 Jadwan, as the operator of Derwent Court, had struggled to ensure it met those standards prior to the events at the centre of these proceedings. 48 In 1991 Derwent Court had been identified by the Commonwealth as a "home of concern". In response Jadwan had made certain improvements. In 1993 that designation had been lifted. Notwithstanding, reports of subsequent Standards Monitoring Teams had continued to refer to aspects of Derwent Court's provision of aged care services as requiring "action" or "urgent action" if the nursing home was to fully meet Commonwealth standards. 49 However, it would be misleading to suggest that there was nothing in Derwent Court's past history in its favour. There is evidence in Jadwan's business records that Derwent Court not infrequently had been sent unsolicited expressions of gratitude from relatives of residents thanking it and its nursing staff for the kindness and care their elderly relatives had received. In these proceedings there was evidence from a retired general practitioner, Dr Timmins, that in the period prior to Derwent Court's revocation of approval as a nursing home he had had around 20 residents of Derwent Court as his patients. He had made routine weekly ward rounds attending those of his patients that Derwent Court had identified as needing to be seen. Dr Timmins gave evidence that: My impression of the nursing care was that it was excellent. I don't remember a single major problem with any of the nurses being [sic] not providing care or being oddities in the system. (transcript p 770 line 46 - p 771 line 2) 50 However in cross-examination Dr Timmins accepted that he had no recall of ever having been told that Derwent Court had been classified as a home of concern between 1991 and 1993. Nor could he recall being informed of the difficulties Derwent Court had had with the Commonwealth from that time to its closure. However, in response to a question regarding sanctions having been imposed resulting in Derwent Court having been unable to accept new residents as from February 1997, Dr Timmins' evidence was that he guessed that he might have heard of that at some stage. He conceded that the views he had formed in relation to the quality of care at Derwent Court were the result purely of his personal observations. He accepted that he had not been familiar with the Commonwealth standards applicable to nursing homes in 1997 (transcript p 777 line 25 - p 778 line 31). 51 Notwithstanding Dr Timmins' positive impressions, from mid-1996 Jadwan confronted growing pressure to satisfy the Commonwealth that the care it provided at Derwent Court met the required care standards as would entitle it to retain Commonwealth funding for its residents. 52 On 6 and 7 August 1996 a Standards Monitoring Team visited Derwent Court. Its draft report made a number of highly adverse findings regarding the standard of care provided. It recommended that sanctions pursuant to s 45E of the National Heath Act be imposed on Derwent Court. The effect of such sanctions, if imposed, would be that while Jadwan could continue to receive funding for existing residents, no Commonwealth funding would be available for any new residents unless and until those sanctions were lifted. 53 On 6 September 1996 Jadwan was provided with a draft statement of the report and was notified that sanctions might be imposed. 54 At Jadwan's request (Ex A1 pp 1186-1190), a Standards Review Panel (SRP-1) was constituted (or purportedly constituted) to review the recommendation of the Standards Monitoring Team that sanctions under s 45E(1) be imposed. The SRP-1 visited Derwent Court on 10-14 November 1996. Its report, dated 2 December 1996, went well beyond endorsing the conclusions of the Standards Monitoring Team. The report of the SRP-1 recommended that Derwent Court urgently be closed. 55 A significant reason referred to by the SRP-1 as justifying its recommendation that it was urgent that Derwent Court's approval as a nursing home be revoked was the home's inadequate fire safety measures and the associated risk to its residents. The SRP-1's report acknowledged that earlier inspections of Derwent Court had not identified fire safety as an issue requiring urgent action. However, it concluded, the explanation for the absence of any prior attention to fire safety was that previous inspections had been conducted on a flawed understanding of the meaning of an approval given to Jadwan by the Tasmanian Fire Service (the TFS) in 1989. In 1989 the TFS had authorised Jadwan to accommodate residents on the upper floor of Derwent Court. The SRP-1 concluded that that authorisation had not involved any assessment of the actual risk to resident safety and that the TFS documentation "did not have the effect of [an] overall fire clearance, or approval from the fire service to locate frail and non ambulant resident [sic] on the upper floor" (Ex A1 p 1249). 56 On 3 February 1997 Mr Stephen Dellar of the Commonwealth Department of Health and Human Services sent Jadwan a letter giving it notice that a declaration had been made under s 45E(1) of the National Health Act that Commonwealth subsidies would not be payable with respect to new residents (the sanctions decision) (Ex A1 pp 1270-1293). 57 Mr Dellar advised that Jadwan had three days to show cause why its approval to operate Derwent Court as a nursing home should not be revoked. 58 Jadwan replied on 6 February 1997 in the following terms: I am responding to the requirement in accordance with Section 44(2A) of the National Health Act 1953 to show cause why Approval of Derwent Court Nursing Home should not be revoked. I understand that cause must be shown in relation to fire safety and satisfying other standards. In relation to fire safety, on behalf of Jadwan Pty Ltd I give the undertaking to complete the works listed below. The undertaking is given after consideration of the Kerr Lewit Clark and Kidd Report dated 4 February 1997, and the Survey Report following the Tasmania Fire Service fire safety inspection on 4 February 1997. From the Tasmania Fire Service Survey Report the following works will be completed as soon as practicable and include all items marked 'Requirements' in the Report:
1. 100% test of all detectors.
2. Upgrade the Fire Indicator Panel Documentation.
3. Sound pressure test of warning devices.
4. All fire doors to be fitted with smoke seals.
5. Hole in smoke wall to be repaired.
6. Areas where services may have penetrated fire or smoke walls to be checked for compliance.
7. Inspection of emergency lighting system by a qualified person.
8. Existing self-luminous exit signs to be replaced with illuminated signs.
9. Relocate the hose reel to comply with the spindle height required.
10. Replace fire extinguishers as recommended.
11. Relocate fire blanket in kitchen to a recommended position.
12. Install a hose reel on the first floor at the front of the building.
13. Material stored in the undercroft to be reduced.
14. Inflammable material at the rear of the building to be removed.
15. Review of smoke detectors in living areas.
16. Installation of break glass alarms in liaison with Tasmania Fire Service. The Kerr Lewit Clark and Kidd Report and Tasmania Fire Service Survey Report (Item 5) recommend either smoke or fire isolation (as appropriate) of the open stairs from the foyer. Pending clarification from both advisers, recommendations will be effected. From the Kerr Lewit Clark and Kidd Report, these works will be completed without delay: Cupboard in Sick Bay to be relocated, providing a further exit. Fire Evacuation Procedures to be revised to include: • Distinction between evacuation of building and evacuation to a fire protected area. • Clarification of assembly areas for upstairs occupants and those downstairs. • A procedure for evacuation of first floor occupants with respect to fire on ground floor. All works to be carried out in liaison with Tasmania Fire Service. The Directors are seriously considering the installation of a sprinkler system. It has not been possible, since receiving the Tasmania Fire Service Report last night, to gain the information necessary to make a decision. There are other considerations to this decision and I seek an early opportunity to discuss the matter in full with you. With regards to the non-compliance of standards under Section 45D of the National Health Act 1953, the Director of Nursing and I undertake to thoroughly review all standards and seek outside assistance in our endeavours to satisfy the standards. Detailed information on the plans to achieve this outcome will be supplied within 28 days of any deferral of revocation of Approval. The Directors believe the foregoing is proof of a genuine effort to satisfy the Department, and is a basis for deferral of the revocation of Approval. (Ex A1 pp 1389-1392) The letter was sent under the signature of Mr Jeff Alexander, one of Jadwan's directors. 59 The evidence does not disclose whether the Commonwealth replied formally to that correspondence but it is uncontentious that the outcome was that Jadwan's response was sufficient to stave off the immediate revocation of Derwent Court's approval. 60 However, as might be expected, Jadwan remained under pressure to address the Commonwealth's concerns. 61 Against that background, on 7 February 1997, Jadwan engaged a solicitor, Mr Wicks. Mr Wicks was an employee of the First Respondent. The terms of Mr Wicks' retainer, and how he discharged or failed to discharge his duties pursuant to his retainer, are the subject of consideration later in these reasons. However it is appropriate to note that on Jadwan's instructions Mr Wicks wrote to Mr Dellar, State Manager, Department of Health and Family Services on 12 February 1997 asking for information about how the SRP-1 had come to be appointed and "by way of observation only at this point" suggested that one of its members, a Mr Van der Schoor, by reason of his position as Executive Officer of Aged Care Tasmania Inc appeared to have had a conflict of interest (Ex A1 pp 1485-1486). On 14 February 1997 Mr Dellar replied to Mr Wicks, providing the information requested and stating he had been advised by the Chair of the SRP-1 that she was satisfied there had been no conflict of interest for any member (Ex A1 pp 1507-1508). 62 A Commonwealth Standards Monitoring Team headed by a senior interstate member then visited the nursing home on 12, 13 and 17 March 1997. Its report was even more damning than that of the SRP-1 (Ex A1 pp 1635-1668). 63 That report appears to have prompted the Commonwealth to appoint, or purport to appoint, a second Standards Review Panel (SRP-2) to advise the Minister as to whether Derwent Court's approval as a nursing home should be revoked. The SRP-2, (excluding, I infer, having regard to Mr Wicks' representations, Mr Van der Schoor) convened on 9 May 1997. It comprised only three members rather than five as provided by the then reg 12(1) of the National Health Regulations 1954 (Cth) (the National Health Regulations). Its members visited Derwent Court that afternoon. The report of SRP-2 dated 26 May 1997 endorsed the recommendation earlier made by the SRP-1 that Derwent Court be closed. Jadwan was informed of that outcome by letter dated 28 May 2017 (Ex A1 pp 1728-1745). 64 On 23 June 1997 the First Respondent invoiced Jadwan for the legal services Mr Wicks had up until that time provided to it. 65 On 2 July 1997 Mr Wicks commenced employment with the Second Respondent. As is evident from a note made by Mr Wicks that day, Jadwan had re-engaged him as its solicitor (Ex A1 p 4125). 66 On 7 July 1997 the Aged Care Act and the Consequential Provisions Act each received royal assent. Although they thus became laws of the Commonwealth, they did not immediately come into effect. Their date of commencement was to be fixed by Proclamation. Until then the National Heath Act continued to apply to the operation of nursing homes. 67 By a notice dated 20 July 1997 (Ex A1 pp 1911-2098), Jadwan was advised of the intention of Ms Jane Halton, First Assistant Secretary, Aged and Community Care Division, as a delegate of the Minister for Family Services for the purposes of s 44 of the National Health Act, to revoke the approval of Derwent Court under s 44(2A) of the National Health Act, 14 days after the date of that notice. Jadwan was provided with an extensive statement of Ms Halton's reasons. On the same day the Department wrote to staff and residents of Derwent Court to inform them of the Commonwealth's intention to revoke Derwent Court's approval in 14 days. There is some evidence to suggest that not all of those letters were passed on to their individual addressees but nothing presently relevant turns on that. 68 Jadwan was advised of that notification on 21 July 1997. Without seeking legal advice, Mr Jeff Alexander immediately approached Mr Dellar, the Department's senior representative in Tasmania, to advise that the cost of meeting staff redundancies would break the company. I infer he sought the Commonwealth's agreement to meet those costs. The evidence establishes that on or before 23 July 1997 Mr Dellar provided such an undertaking. 69 On 23 July 1997 Mr Wicks wrote to Ms Halton in the following terms on Jadwan's behalf (Ex A1 p 2108): You may be aware, we act for Jadwan Pty Ltd, the proprietor of the Derwent Court Nursing Home. We have been handed a copy of your notification dated 20th July, 1997 of intention to revoke the approval of the Home under the provisions of the National Health Act. We advise that we are urgently seeking senior counsel's advice on options open to our client in this matter which may include a review of or appeal against the revocation of the Home's approval. In the meantime, and until senior counsel has had the opportunity to fully review the background to this matter and advise on options available to our client, we must warn the Department in the strongest possible terms against taking any action to remove any residents from the Home or to in any way pre-empt a revocation of approval. 70 The Australian Government Solicitor (AGS) responded immediately in the following terms (Ex A1 p 2109): I refer to your facsimile of 23 July 1997. I act for the Department of Health and Family Services in this matter. Please advise me of what action you propose to take on behalf of your client. The Department will not desist from taking appropriate action to protect the health and welfare of the patients. I have advised the Department of the competing interests of your clients and the interests of the patients in the home. The Department is aware of the appropriate appeal rights available to your client and expects your client to take advantage of those rights. 71 On 24 July 1997 Jadwan gave notice to all of Derwent Court's staff. Jadwan thus protested but did not seek to prevent its residents being transferred to other nursing homes. The last resident vacated Derwent Court on 4 August 1997 (Ex A1 p 2651). 72 As Mr Wicks' letter to Ms Halton indicated, Jadwan had given Mr Wicks instructions to engage senior counsel. On 24 July 1997 Mr Wicks met with Mr Porter to brief him on the circumstances then confronting Jadwan. 73 On 28 July 1997 Jadwan engaged Mr Hogan to assist it to obtain approval from the Commonwealth for it to sell its bed licences (Ex A1 pp 2125-2364). 74 On 6 August 1997 Ms Halton as delegate of the Minister, purporting to act, inter alia, on the advice of the SRP-2, revoked Derwent Court's approval as an approved nursing home under s 44(2) of the National Health Act. As of that time Jadwan ceased to be entitled to receive Commonwealth benefits for the care of nursing home residents at Derwent Court. However by that time all of its residents had been relocated. 75 On 21 January 1998 Jadwan commenced proceedings in this Court pursuant to the ADJR Act contesting the validity of the 6 August 1997 revocation decision. 76 Initially it may have appeared to Jadwan that it had been successful in restoring its position. 77 On 19 June 1998 Heerey J held that SRP-2 which had recommended that Derwent Court's approval be revoked had not been validly constituted: Jadwan Pty Ltd v Minister for Health and Family Services [1998] FCA 715; (1998) 51 ALD 245 (Jadwan No 1). His Honour held that Ms Halton's revocation decision which had, inter alia, relied on the SRP-2's findings was void in consequence. 78 The Minister appealed that decision. In Minister for Health and Family Services v Jadwan Pty Ltd [1998] FCA 1549; (1998) 89 FCR 478 (Jadwan No 2) a Full Court of the Federal Court of Australia (Burchett, Drummond and Sackville JJ) allowed the Minister's appeal in part. 79 Their Honours concluded that the primary judge had erred when he had concluded that the procedures required by law for the revocation of Derwent Court's approval had not been followed - the exercise of the Minister's s 44(2) power to revoke an approval was not conditional on the establishment of a Standards Review Panel. However, then accepting a new argument advanced by Jadwan in the course of the appeal, the Full Court held that by treating the SRP-2's findings as having been made by a validly constituted Standards Review Panel, the Minister's delegate had taken into account a materially irrelevant consideration and for that reason the exercise of the power was to be set aside. 80 The formal orders of the Full Court in Jadwan No 2 as made on 4 December 1998 were:

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5.1 Mr Wicks 112 Mr Wicks was, in turn, an employed solicitor with the First, Second and Third Respondents. 113 The Court's findings as to what Mr Wicks did or did not do are also at least potentially relevant to the alleged liability of the Fourth and Fifth Respondents. 114 Mr Wicks was an extensive note-taker. 115 A considerable number of Mr Wicks' file notes were adduced as evidence in Jadwan's case as part of exhibit Ex A1. The majority of his notes bore a clear indication of the date on which they were made, but some did not. 116 Counsel for the First, Second and Third Respondents, Mr Jackson SC, expressed concern that the Court might misapprehend the import of an undated note within Ex A1 unless regard was given to its context and the chronology of its making. 117 Mr Jackson informed the Court (without objection) that Mr Wicks' original file had been pulled apart for use in Jadwan's earlier legal proceedings. Following those proceedings, no steps had been taken to ensure it was accurately reassembled. Mr Wicks' notes therefore did not appear in the Court Book in proper chronological order (transcript p 1468 line 26 - p 1471 line 14). 118 Mr Jackson advised the Court that Mr Wicks had recently applied himself to reconstructing his file notes in their original chronological order. Mr Jackson sought leave to have the entire corpus of Mr Wicks' file notes, in the order Mr Wicks had reconstructed them, admitted into evidence on behalf of the First, Second and Third Respondents. Mr Pearce did not oppose that course being taken. 119 I therefore admitted into evidence Mr Wicks' file notes in the order and form they had been reassembled by Mr Wicks as Ex R1-3 X6. 120 In large measure that precaution may have been unnecessary because the course of the trial led to most of the file notes included within Ex A1 as I have referred to in my reasons not being disputed as to their chronology. 121 However because Mr Pearce was selective (as he was entitled to be) as to which of Mr Wicks' file notes Jadwan would tender as included in Ex A1, some of Mr Wicks' file notes are in evidence only as part of Ex R1-3 X6. 122 Unfortunately the pages of that exhibit are not sequentially numbered. The handwritten numbering as appears at the foot of each page is of no assistance. Those numbers refer to equivalent pages of the original Court Book. Unhelpfully, the Court Book in its entirety is not in evidence. Thus when the Court refers to a particular file note within that exhibit in these reasons the source documents have had to be identified by their sequence in date and time. 123 I make the following findings regarding Mr Wicks' practice of note-taking informed by the evidence as a whole before the Court. 124 I find that at all material times Mr Wicks was an assiduous and careful note-taker. He kept a separate file for Jadwan. I find that Mr Wicks' regular practice was to make a handwritten note at the time of, or as shortly thereafter as possible, of every communication he had with the directors of Jadwan. I find that he similarly had a practice of making a handwritten note of every action he took on their behalf. 125 I find that Mr Wicks usually, but not invariably specified the date, and less frequently recorded the time of the events he made handwritten notes about. He distinguished telephone calls to him as "TF" from those he made as "TT". 126 His common (but not invariable) practice was to express anything said by someone by using the word "you" followed by whatever had been said. I find that Mr Wicks took care to identify whether he was recording something said to him in distinction from something he had said but in the haste of making a note sometimes that object was not achieved. 127 I find that where Mr Wicks thought a particular event was of exceptional significance, he would expand his original hand written file note into a longer typed record while the event was still fresh in his mind. 128 I find that none of Mr Wicks' file notes were constructed in anticipation that they might later be the subject of proceedings such as the present. 129 For the above reasons I am satisfied, unless good reason is established to the contrary in a particular instance, that the Court is entitled to rely on Mr Wicks' file notes as highly probative of what they record. I include in that regard what they reveal about his own thinking at the time.

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5.1.1 Mr Wicks' undue certainty 130 Without the benefit of his file and his file notes before him, in oral evidence Mr Wicks' memory of the events recorded proved susceptible to error. 131 As an example, Mr Wicks gave what appeared to be confident evidence during examination-in-chief that he had not known about the sanctions decision until 10 June 1997. After having been shown certain relevant documents Mr Wicks accepted that he must have known about the sanctions decision from 7 February 1997 (transcript p 1567 line 7). 132 More generally, Mr Wicks asserted a certainty about his present recall beyond that which the Court finds plausible. 133 Pressed in cross-examination by Mr Pearce as to what weight could be put on his present recall if it was inconsistent with a file note he had made in 1997, Mr Wicks responded that if a discrepancy existed between his oral evidence and his file notes, his oral evidence should be preferred because he had had the opportunity to review the content of his file notes before being called (transcript p 1638 line 45 - p 1639 line 11; p 1571 lines 1-22). 134 I am satisfied that, in respect of the occasions when Mr Wicks' oral evidence diverged from his contemporaneously written notes, in the absence of a clear contextual reason or evidence to corroborate his evidence, the Court is entitled to proceed on the basis that that which is recorded in his notes is to be accepted as the more reliable. I do not impugn Mr Wicks' general credit on that premise. I find that Mr Wicks' confidence in his capacity to recall those events, while implausible, was genuine. 135 I observed that under robust cross-examination Mr Wicks showed signs of discomfort. However some discomfort can be accepted to be inherent in his having to recall events which, whatever his responsibility for them might be, had turned out badly. 136 Within the limits of a judge's capacity to evaluate character, my observations reinforced rather than undermined my confidence in Mr Wicks' honesty. 137 Mr Wicks' confidence in his present recall under cross-examination was wholly implausible. But it had the ring of truth - as his assertion. Tempting as it might be to conclude that no lawyer could honestly give such evidence, I reject that conclusion in Mr Wicks' case. I am satisfied that despite his having reviewed his notes (including reassembling them in their original order) he had continued to believe with implausible certainty some things that were inconsistent with them. I find that when Mr Wicks gave such evidence he genuinely believed that his present memory should be preferred in those instances. 138 By way of contrast, in other aspects of his evidence under cross-examination Mr Wicks was perhaps too prone to make concessions. I discuss instances in which that may have been the case at [243], [270] and [278] below. In my view both his over-confidence in certain aspects of his evidence and his self-destructive willingness to make what appeared to the Court may have been unnecessary concessions were manifestations of a lack of insight and judgement, not dishonesty. 139 In so far as it is open to a judge to make an assessment based on demeanour, I am satisfied that while on occasions Mr Wicks gave evidence which the Court has rejected, he answered the questions put to him in examination-in-chief and in cross-examination as he understood the truth to be.

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5.2 Mrs Joan Alexander 140 Mrs Joan Alexander was a director of Jadwan. She remains so. 141 In respect of the periods relevant to these proceedings her evidence established that she had maintained a work diary. Her practice was to assiduously record, in long-hand, notes of any discussion she had had with her fellow directors. She also recorded notes of meetings relevant to Jadwan's affairs. Her notes were not confined to events she had directly participated in. They included a record of events she had been told about by other directors of Jadwan. Her evidence confirmed that her practice had been to make notes without delay as soon as possible after the events they described had occurred, or she had been informed of them. Her credit was not put in issue. 142 I ruled in the trial that Mrs Alexander's diary was admissible as a business record. Parts were then tendered as Ex A1 and Ex R1-5 X1. No application was made to exclude or limit the use of those entries pursuant to s 135 or s 136 of the Evidence Act 1995 (Cth) (the Evidence Act) regarding any hearsay they might contain. Subject to considerations of weight and relevance, such hearsay statements are admissible to prove the truth of what they record. I accept the provenance and routine reliability of Mrs Alexander's notes regarding the events she recorded. 143 There was only one diary entry about which a dispute arose. In that regard, an entry dated 24 July 1997 (Ex A1 p 3780) refers to the Alexanders having decided to sell 51 beds and Joan Alexander's intention to go to "Glenburn" to tell "Pam" that "we are selling today". 144 Mr Gunson SC cross-examined Mrs Joan Alexander on the basis that her note was to be understood as a record of planning to tell "Pam" that the Alexanders were intending to sell Derwent Court's 51 beds. She denied that. When re-examined by Mr Pearce, Mrs Alexander explained that her reference to 51 beds had been an error on her part; the Alexanders were then planning to sell the Glenburn Nursing Home which they operated in Victoria and her note had wrongly referred to 51 beds rather than Glenburn's 31 beds (transcript p 534 line 26 - p 535 line 17). 145 I accept that explanation as it is consistent with Mrs Alexander's subsequent note at Ex R1-5 X1 p 3781. It is consistent with the Alexanders making plans at that time to get out of the nursing care industry entirely. That the Court is entitled to accept the truth of her account in re-examination is reinforced by a later diary entry dated 27 July 1997 (Ex R1-5 X1 p 3783) in which Mrs Alexander records that having regard to the events at Derwent Court, "we need to get out [of Glenburn] quick before they [the Commonwealth] do the same thing". 146 The Court later refers to certain parts of Mrs Alexander's oral evidence it did not accept, but it is entirely satisfied that Mrs Alexander gave evidence of the truth as she recalled it.

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THE CONTROLLING MIND OF JADWAN 147 As a company Jadwan was and is in law an independent legal personality but necessarily its conduct had and has to be directed by human minds. During the period material to these proceedings Jadwan's directors were Mr Jeff Alexander (until his death), his wife Mrs Joan Alexander together with their children Ms Julie Alexander and Mr Wayne Alexander. 148 Jadwan's directors were family members. They appear not to have thought it necessary to formally record the decisions they made as the directors of Jadwan. A difficulty is thus presented at the threshold because there are no relevant records of directors meetings in evidence. 149 However, the evidence given in the trial entitles the Court to conclude that until his untimely death Mr Jeff Alexander was, in practice, the controlling mind of Jadwan. 150 Asked by Mr McElwaine whether his father, Jeff, was "effectively the one in control" of Jadwan, Mr Wayne Alexander answered, "yes, but he did have daily communications with … Julie and with my mother Joan" (transcript p 720 lines 40-43). He gave evidence that Mr Jeff Alexander had been the "predominant director" who oversaw all major decisions, but all directors had input and they would generally reach a consensus regarding decisions made by the company (transcript p 722 lines 6-25). 151 Ms Julie Alexander appears to have played a more active role in the affairs of Jadwan than did her mother and brother. However the evidence establishes that she also deferred to her father even when her instincts were to the contrary. 152 Thus in cross-examination Ms Julie Alexander was asked about a note Mr Wicks had made of a discussion that had taken place between Mr Jeff Alexander and Mr Wicks on 2 July 1997 (Ex A1 p 4125). Mr Jackson suggested to Ms Alexander that the note recorded the intention of the directors of Jadwan at that time as being "more inclined to sell now and get out". Ms Alexander responded that she believed that to be Mr Alexander's own personal sentiment, but that she had not shared that view. She gave the following evidence: I remember Jeff having a discussion with me. It was, I don't know, probably a month or two before we were closed… the notice of intention, asking what my thoughts were on it, whether we should sell. And my thoughts were that the reports were so grossly wrong that we should be challenging it and not allow these people to rob us of our nursing home. (transcript p 597 lines 37-42) 153 Whatever concern Ms Julie Alexander may have expressed during that conversation with her father she had said nothing to suggest Jadwan's directors had not so decided when Mr Jeff Alexander informed Mr Wicks on 2 July 1997 about the intention of Jadwan's directors. I find that Ms Alexander tacitly accepted that, while they were equally directors, her father was the final decision maker. That conclusion gains confirmation from the evidence Ms Alexander gave about the events that followed. 154 Ms Alexander gave evidence that on 31 July 1997 she had typed a letter of instructions on Jadwan's behalf, and that her father had dictated the letter to her. That letter (Ex A1 pp 2402-2405) informed Mr Wicks that Jadwan was not in a position to immediately find a buyer for Derwent Court but that, if given a specified timeframe by the Commonwealth to permit it to do so, Jadwan would engage a business broker and negotiate its sale. 155 Ms Alexander's evidence was that she had disagreed with the content of the letter but had said nothing about her reservations to her father. She had delivered the letter to Mr Wicks as Jadwan's instructions despite her concerns about its contents. Ms Alexander sought to distance her fellow directors from it. The letter was "purely Jeff's" (transcript p 620 lines 35-47). 156 However the following exchange took place between Mr Jackson and Ms Alexander (at transcript p 622 lines 6-24): MR JACKSON: Well, I'm simply establishing that this is a decision Jadwan had come to on ---? No. But I recall at the --- ---31 July?---I do recall at the time that this letter was written in haste and I didn't have any input on it. We just got it off very hastily to Mr Wicks. And it was - it was an extremely stressful time where, you know, basically it was - you know --- I have no doubt it was. But this letter reflects, doesn't it, accurately the decision Jadwan, including you and Jeff, had come to by the time you sat down and typed this letter as Jeff dictated it to you?---No, it wasn't. It - it was - this is Jeff's letter that went to --- Well, were you---?---Mr Wicks. ---content to allow Jeff to make this decision on behalf of Jadwan? It was - at the time, I suppose, you know, it was - there was - it was too much --- Were you content to allow Jeff to make that decision, the decision reflected in this letter, on behalf of Jadwan?---Yes. (Emphasis added) 157 I find that Mr Jeff Alexander was, at all material times relevant to these proceedings, effectively in control of Jadwan. Even if other directors had private reservations and even if they had expressed a contrary view, once Mr Alexander had spoken on the company's behalf they subjected their will to his. I am satisfied that when Jadwan gave instructions to its legal representatives it did so on the basis that Mr Alexander was its "predominant director". Jadwan impliedly authorised him to be held out as such. Notwithstanding any reservations privately held by other directors, what Mr Alexander communicated as Jadwan's decisions and instructions were, and were entitled to be, understood by Mr Wicks, the Department, and others dealing with the company, Jadwan's decisions and instructions.

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7.1 The directors of Jadwan 161 The three surviving directors of Jadwan gave oral evidence. All were cross-examined. Each denied having had any prior knowledge of the Aged Care Act before it came into force as law on 1 October 1997. 162 Such significant legislative changes can be expected to have been the subject of debate and publicity. It might be thought that a family running a nursing home would have had a strong interest in ensuring they were fully up to date in their knowledge of significant changes facing their industry. 163 It is tempting to treat Jadwan's surviving directors' evidence as self-serving and inherently implausible but I refrain from doing so. 164 The documents discovered by Jadwan contain no records of any communications received from the Commonwealth advising it and/or its directors of the anticipated enactment of either the Aged Care Act or the Consequential Provisions Act. The Respondents did not suggest that Jadwan's records had been culled before discovery or that Jadwan had otherwise failed to disclose relevant correspondence from the Commonwealth. No evidence was adduced by the Respondents to establish that such correspondence had in fact been sent to Jadwan by the Commonwealth. 165 The Respondents submit that Jadwan had prior knowledge because Mr Jeff Alexander would have learnt of that legislation when he attended a standards and accreditation seminar organised by Australian Healthcare Associates Pty Ltd on 25 August 1997 (confirmation letter at Ex A1 p 5454). 166 The Respondents submit that a participants' workbook discovered by Jadwan (Ex A1 pp 2663-2728) given to those attending that seminar discloses those legislative changes in sufficiently clear terms as to require the Court to find that, from that time Mr Jeff Alexander must have known not only about the passage of those Acts but also that they would come into effect on 1 October 1997. 167 I reject that submission. 168 I accept that Jadwan's discovery of the participants' workbook entitles the Court to find that Mr Jeff Alexander attended the seminar and had been given a copy. It would not otherwise have been in Jadwan's possession. I accept that the preface to the workbook he was given includes the statement that the Aged Care Structural Reform Strategy "that was announced in the 1996 Budget comes into effect from 1 October 1997". The workbook describes the requirements under the new accreditation standards. Annexure A of the workbook was the text of the new draft standards. 169 However the workbook contains only three oblique references to the Aged Care Act (towards the top of p 6 referring to User Rights, at the foot of p 11 referring to prescribed services and near the top of p 12 when referring to other regulatory requirements). It made no reference to the Consequential Provisions Act. 170 I find it to be plausible that an operator of an existing aged care facility attending the seminar, without existing knowledge that the Aged Care Act had become law on 7 July 1997, might well overlook those references, and focus on it as an information session about new accreditation standards - as a practical development - without regard to their legal underpinnings. 171 In any event I am not prepared to find that the date of 1 October 1997 would have stood out to an existing provider as a key date. In reference to the "transitional timetable", the workbook contained the following information (at p 29): The timetable leading to Accreditation day on 1 January 2001, is summarised below. If facilities have not been Accredited by this date their funding will cease. 172 I am not prepared to find that Mr Jeff Alexander's possession of that material must have given him to understand that a new statutory regime was to come into force on 1 October 1997. That he was simply inattentive to the detail in the workbook is an entirely plausible alternative explanation. 173 In that regard I note that by 25 August 1997 Derwent Court had closed. Mr Jeff Alexander may have had other things on his mind rather than the content of the workbook. 174 I am satisfied that had Mr Alexander discovered, as a result of his attendance at that seminar, that the then operative laws pursuant to which Derwent Court had been sanctioned were to be repealed and would be replaced by an entirely new legislative scheme, it is entirely implausible, given the focus of Mr Alexander's attention, that he would not have immediately communicated that discovery to the lawyers he had instructed to act for Derwent Court. Having regard to the diligence of Mr Wicks in making extensive contemporaneous notes, had Mr Alexander done so I am satisfied that Mr Wicks would have made a file note and that that file note would be in evidence as part of Ex R1-3 X6. There is no such file note.

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7.2 Jadwan's directors blind to the threats facing them 175 I also reject the Respondents' submissions that in any event Jadwan's directors must have known about the Aged Care Act and the Consequential Provisions Act before 1 October 1997. That Jadwan's directors remained unaware of pending significant legislative changes can be accepted without scepticism when regard is given to the overall picture the evidence in these proceedings paints about the way Jadwan operated Derwent Court. 176 Prior to 1997 the directors of Jadwan had entrusted the responsibility for resident care at Derwent Court to an "old school" Director of Nursing. Mr Jeff Alexander explicitly disowned his having any capacity to provide informed comment on nursing matters when instructing Mr Wicks (Ex A1 p 4115). There is considerable evidence that the Director of Nursing to whom Jadwan had entrusted that responsibility, was not in tune with, and resistant to, the need for change. The Court's finding in that regard is consistent with the evidence of Jadwan's principle expert witness, Ms Kay Horgan (an aged care adviser and nurse adviser/administrator) that, until the Director of Nursing retired (by her recollection in May 1997), there had been no meaningful policy development in response to the Standards Monitoring Team's report provided to Jadwan on 6 September 1996 (transcript p 1197 lines 7-10; p 1197 lines 30-38). 177 Jadwan accordingly had paid little or no attention to emerging threats to its business model arising in consequence of increasing demands for improved care standards in the nursing care industry. Jadwan had made changes only when pressured to do so by the Commonwealth, and then only to the least degree required for compliance. 178 The evidence in these proceedings also establishes that Jadwan had been reluctant to spend money to upgrade Derwent Court. Thus in 1993 Jadwan first accepted but then later rejected a funding offer of in excess of $100,000 from the Commonwealth to enable it to install a lift at Derwent Court (Ex R1-5 X1 p 998; transcript p 426 lines 36 - p 428 line 35). 179 In her evidence Ms Horgan agreed that safety concerns about stairs being the only access to the upper floor at Derwent Court were not confined to residents. The stairs also presented an occupational health and safety risk for staff carrying food trays up and down them (transcript p 1200 lines 35-39). 180 The reason Jadwan had given for rejecting the Commonwealth's offer was that it would not have covered the full cost of installation. There is reason to doubt that. There was evidence adduced in these proceedings by Jadwan in support of its later abandoned "Scenario 1" that a lift could have been installed for much less than that sum (quote provided by Otis Elevator Company on 19 February 1997 for supply and installation of a lift for $74,000 at Ex A1 p 1560). But even assuming the Commonwealth's offer would not have covered the full cost as at the earlier point in time Jadwan had rejected it, the fact of that offer's rejection stands as evidence that Jadwan had been unwilling to expend any of its own funds on improvements to Derwent Court unless compelled to. 181 Later, even knowing it was facing the threat of revocation of Derwent Court's approval, Jadwan continued to stall on committing to the relatively modest cost of installing a sprinkler system ($46,800 according to a quote at Ex A1 pp 1578-1579). A file note made by Mr Wicks following a meeting on 26 February 1997 he had attended with Ms Julie and Mrs Joan Alexander on Jadwan's part and Mr Dellar and Mr Hargrave representing the Department (Ex A1 pp 4210-4211) records Jadwan asking for "some sort of assurance with respect of compliance with standards in the future if the home went ahead and installed a lift and sprinkler system". 182 Ms Horgan, the principal expert witness called on behalf of Jadwan, conceded that Jadwan's reluctance to make such a modest investment (as I find the fact to be) did not bode well for its future compliance with safety standards (transcript p 1216 lines 1-3). It is uncontentious that a sprinkler system was not installed. 183 Jadwan also scrimped with staff training. After Derwent Court closed, the Nursing Board of Tasmania conducted an investigation. Its report is in evidence (Ex R1-5 X1 pp 3016-3042). The investigation found that Jadwan had provided limited staff training and that "most staff funded the cost of continuing education themselves" (at p 16). 184 Moreover, even accepting, as Ms Julie Alexander contended in her evidence, that Jadwan spent more on staff training than the derisory amounts recorded in its annual accounts, there is no reason to doubt the factual assertion recorded in SRP-1 that Jadwan had returned "large amounts" of funds provided to it by the Commonwealth for staff training (Ex A1 p 1242). 185 The evidence I recite above establishes that Mr Jeff Alexander and his fellow directors lacked critical insight into the growing external pressure for improved care outcomes on the industry in which Derwent Court was operating. Under their leadership both Derwent Court's physical structure and its approach to nursing care had become anachronistic. Despite Derwent Court earlier having been identified as a home of concern, Jadwan had taken few, if any, proactive steps to ensure Derwent Court would remain viable into a future where care standards would need to improve. Jadwan had been blind to the necessity to do so. 186 The Court does not suggest that Jadwan was alone in that regard. The uncontroverted evidence of Ms Horgan was that with the passage of the Aged Care Act, a considerable number of older-style nursing homes would have needed time to meet the new standards. But the fact that other nursing homes would be affected by those changes is not to the point. Derwent Court was already the subject of adverse attention by the Department. Jadwan's history of making only grudging and minimal changes in response to that adverse attention heightened the risks Derwent Court faced. 187 In the absence of anything specific to controvert the evidence of the surviving directors that they and Jadwan had had no knowledge of those changes until much later in time, on the premises above, I accept the truth of that evidence. None of them had paid sufficient attention to new demands for higher standards in the industry in which they operated. 188 I give reasons below for rejecting Mr Pearce's submission that that adverse attention Jadwan experienced from the Commonwealth was the product of ill will.

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7.3 Criticism of Jadwan's management of Derwent Court not a product of ill will 189 Mr Pearce opened Jadwan's case contending that the Court should find that the Department and its officers had been motivated by ill will towards Jadwan and/or the Alexander family. As a result of that, he contended that the adverse findings of the various Standards Monitoring Teams and Standards Review Panels regarding Derwent Court's compliance should be discounted. 190 Neither of the expert witnesses called on Jadwan's behalf gave evidence to support that premise. Ms Horgan's evidence was that as at 1 October 1997 Jadwan would not have met the required accreditation standards (Ex A3 and transcript p 1192 line 31 - p 1193 line 12). Her evidence was that if Jadwan had been granted sufficient time it subsequently would have been able to have done so. 191 A lay witness, Dr Timmins, suggested as much but in the Court's opinion the concessions he made in cross-examination (transcript p 778 lines 1-29) mean his suppositions are too frail a basis to impute ill will to the many Commonwealth officers and advisers who assessed Derwent Court against the then Commonwealth standards. 192 The soundness of the earlier assessments which had led to Derwent Court having been designated a home of concern (1991-1993) were not challenged during the trial. 193 The Court is satisfied that even if SRP-1 and SRP-2, as Mr Pearce submitted, were both invalidly constituted by reason of qualifications, quorum and one or more of their members' apprehended bias, that is not sufficient reason to impute ill will (as opposed to a mistaken understanding by the Department in respect of their members' qualification for appointment) to the Commonwealth or its officers. 194 In respect of the standards at Derwent Court during the critically relevant period I note that the conclusions of the Standards Monitoring Team which inspected the nursing home on 12, 13 and 17 March 1997 was even more damning. To ensure the latter's arms-length independence, in the face of Jadwan's complaints, that Standards Monitoring Team had been headed by a senior team leader from outside of Tasmania. Mr Pearce submits that the tenor of that report demonstrates preconceived ill will but in the Court's opinion there is no evidence to support that conclusion. Its general consistency with SRP-1 and SRP-2 is not a reason to impute improper motive to its authors. 195 Moreover, it borders on the absurd to suggest the key finding of SRP-1 that Derwent Court's standards of fire safety were inadequate was the product of malice. It was ultimately uncontentious in these proceedings that Derwent Court's fire safety standards had been inadequate - Mr Pearce did not submit otherwise. I find that from the time the Commonwealth became aware of the inadequacy of fire safety standards at Derwent Court that issue had had to be dealt with by both it and Jadwan as a matter of substance and urgency. 196 Moreover it is impossible to reconcile claims of antipathy on the part of the Commonwealth towards Jadwan and/or the Alexander family with the uncontentious evidence that: the Commonwealth had earlier offered Jadwan substantial funding for the installation of a lift at Derwent Court; a senior Commonwealth officer had suggested Jadwan consider selling its bed licences; even in the face of impending revocation with mechanisms for the closure of Derwent Court in place on 22 July 1997, Mr Dellar had offered Jadwan a two day window to allow it to sell its 51 bed licences if it could find a buyer for them (Ex A1 p 2402); the Commonwealth voluntarily picked up Jadwan's liability for redundancy payments to its displaced staff after Derwent Court's closure; and a second nursing home, the Glenburn Nursing Home in Victoria owned and controlled by the Alexander family albeit through of a separate company ("Cambrai Pty Ltd") was not made the subject of adverse regulatory action in respect of the standards of the nursing care it provided (Ex A1 p 4090). The Glenburn Nursing Home passed inspection and continued to operate under the new legislation. 197 Rather than accepting Mr Pearce's submission that the evidence supports a finding that the Commonwealth was motivated by ill will towards Jadwan, I find, having regard to the factors referred to at [177] to [188], that Jadwan had operated Derwent Court in something of a time warp. It had effectively delegated its responsibility for nursing care to an "old school" Director of Nursing. Jadwan had been reluctant to make any investments to improve its care outcomes and had done so only when compelled. Jadwan had continued to run a small nursing home in outdated facilities as it had in the past, with its directors insufficiently aware of the pressure in their industry for nursing home operators to improve care outcomes. I am satisfied that the evidence entitles me to find that until too late to serve its interests, Jadwan and its directors continued to operate Derwent Court on the premise that its business model did not need to change.

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7.4 Mr Wicks' knowledge 198 Mr Wicks similarly gave evidence that he had not become aware of the existence of either the Aged Care Act or the Consequential Provisions Act until 1 October 1997. 199 Jadwan claims it had no such knowledge (a claim I have accepted), and the absence of any note that he was so advised confirms that he was not told about those Acts by Jadwan. 200 It is uncontentious that such legal research as he undertook had not led him to discover their existence. Mr Pearce relies on that conclusion as a particular of Mr Wicks' negligence. 201 However Mr Pearce submits that the Court is also entitled to find that Mr Wicks had been told about the new legislation on 30 July 1997 and, in further breach of his duty, having learnt of those Acts' existence, had not informed Jadwan. The evidence Mr Pearce cites to support that contention is as follows. 202 On 30 July 1997 (six days after Mr Wicks met with Mr Porter to brief him on the circumstances then confronting Jadwan and four days from the expiry of the notice period it had been given under s 44(2A) of the National Health Act of the Commonwealth's intention to revoke the approval of Derwent Court), Mr Wicks made a note in respect of a conversation he had had with Mr Dellar. It is common ground that Mr Dellar was then the senior representative of the Commonwealth Department of Health and Family Services in Tasmania. 203 In the note made by Mr Wicks regarding that conversation a line appears "1/10 - beds disappear - roll into hostel, res" (Ex A1 p 4165). Three lines later, in reference to the same conversation, is the annotation "51 allocated to S.C. - ours disappear" followed immediately by "if we weren't revoked - 51 extra beds - of concern". Mr Wicks accepts that his note would have recorded what Mr Dellar communicated to him on 30 July 1997 (transcript p 1672 lines 16-20). 204 Mr Pearce submits that I should find that "S.C." was a reference to Southern Cross Homes - where the residents leaving Derwent Court were then being relocated. I am prepared to so find. In closing oral argument Mr Pearce submitted: It's obvious that Mr Dellar told Mr Wicks on 30 July that Derwent Court's 51 bed licences would disappear on 1 October. And yet, Mr Wicks did nothing in response to that, told nobody at Jadwan. (transcript p 1805 lines 40-42) 205 Mr Pearce cross-examined Mr Wicks regarding the note "1/10 beds disappear". Mr Wicks initially responded that he interpreted "1/10" as a ratio, rather than a date. He conceded that he had no independent recollection of the discussion. His cross-examination continued as follows: See the line says 1/10 beds disappeared?---One out of 10 bed - beds - this is how I interpret this. One out of 10 beds disappear, roll into hostel - - - Can I suggest another interpretation of that, Mr Wicks. 1 October, beds disappear?---I can't - I can't comment on that, other than what the note says. If you go down a couple of lines, you will see 51 allocated to Southern Cross. Those are the 51 beds that had previously been with Derwent Court. 51 allocated to Southern Cross, ours disappear?---I note that - I note those words. What I'm putting to you, Mr Wicks, is that you had a conversation with Mr Dellar on 30 July, and Mr Dellar told you on 30 July that, on 1 October, Derwent Court would disappear, Derwent Court's beds would disappear?---I have no independent recollection of that discussion other than what is recorded in this note. (transcript p 1667 lines 26-40) 206 Mr Wicks accepted that 1/10 was ordinarily how he recorded dates (transcript p 1672 lines 34-39). That points to a likelihood that Mr Wicks was recording a date but of itself the Court does not regard that as decisive: an annotation "say 93-34/1000" also in the same note made by Mr Wicks plainly is a reference to a ratio. 207 In closing submissions, Mr Jackson argued that the Court should not make the finding urged by Mr Pearce (transcript pp 1905-1909). He referred to other aspects of Mr Wicks' note which he submitted indicated that Mr Dellar had been discussing a different subject: the need to control unnecessary growth in the number of nursing homes and the degree to which Tasmania was oversupplied. 208 In summation Mr Jackson submitted: …This discussion with Mr Dellar came very late in the day. He was on his way - at an airport somewhere or something and Mr Wicks had already spoken to Mr Hogan on this day and spoke to Mr Hogan, I think, after this conversation as well and also spoke to Jeff. And that's the further point I wanted to make, that it is startlingly obvious that, in no subsequent discussion with anybody, - Mr Hogan, Mr Alexander, or anybody at all - did Mr Wicks mention anything about something happening on 1 October. And one would have to expect that would be the case if Mr Dellar had told him on 1 October Jadwan's beds are going to disappear. But why? Why, as of 30 July, would the beds have been going to disappear on 1 October? No explanation for that can be objectively found logically anywhere. It wasn't going to happen as a result of the new legislation. It - for all practical purposes, it had already happened because of the revocation of approval and the reallocation of beds to Southern Cross Homes. It would be an absurd thing for Mr Dellar to be saying to Mr Wicks on 30 July, "On 1 October, Jadwan's beds are going to disappear." Even then, it is unlikely, I submit, that Mr Dellar would have known that 1 October was a significant date. The legislation was enacted on 7 July. It wasn't gazetted until 16 July. It was proclaimed on 3 September - five weeks, or so, after this conversation - or four and a half - but the proclamation was not published until 17 September. Until 3 September, nobody - outside, perhaps, the Minister - knew when this legislation was going to commence. As of 30 July, it could be any time up to, I think, 7 January 1998. If one looks at this note in the proper context, everything that Mr Pearce says about that entry falls away. It becomes a totally different proposition altogether. (transcript p 1909 lines 3-27) 209 Mr Jackson's submission that until 3 September 1997 nobody but the Minister could have known when the new legislation would commence is unpersuasive. The workbook for the seminar attended by Mr Jeff Alexander in August 1997 (which Mr Jackson had submitted should be the basis to attribute such knowledge to Jadwan) was a joint publication of Australian Healthcare Associates and the Commonwealth Department of Health and Family Services. Copyright was in the latter (Ex A1 p 2663). As already noted, a passage in that workbook had referred to 1 October 1997 as the date on which the "Aged Care Structural Reform Strategy" would come into effect. It is not at all improbable that as at 30 July 2017, notwithstanding that that date had yet to be formally gazetted, internal planning within the Department was proceeding on the basis that the Aged Care Act was to come into effect on that date. 210 What then to make of Mr Wicks' note? 211 In the Court's opinion, construed in its chronological context, the content of that note supports aspects of each of Mr Pearce's and Mr Jackson's submissions. I find that, having regard to its context, the terms of Mr Wicks' note reveal that he had a conversation with Mr Dellar in which Mr Dellar raised not only the general issue of the number of aged care beds as appropriate for Tasmania per thousand head of population and where demand for beds existed, but also what was going to happen to Derwent Court's former allocation of beds ("beds disappear") on 1 October 1997. 212 However, what, if anything, can be made of Mr Wicks' note as going to his then knowledge and understanding is another question. Mr Pearce's cross-examination and closing submissions proceeded on the premise that once Mr Dellar told Mr Wicks that Derwent Court's beds were to "disappear" on 1 October 1997, Mr Wicks knew that new legislation to govern nursing homes had been passed by the Australian Parliament. Mr Wicks had then failed to inform Jadwan of that fact despite knowing those Acts existed. 213 If that was the fact it would be damning. However, I decline to make such a finding. There is nothing in Mr Wicks' note to suggest that Mr Dellar made any reference to either the Aged Care Act or the Consequential Provisions Act during their conversation. It is implausible, given Mr Wicks' practice of noting anything he understood to be of significance, that had Mr Dellar told him about those Acts or mentioned them by name Mr Wicks would not have made a note of what he had been told. I have found that Mr Wicks did not record his notes in anticipation of possible litigation being brought against him - he thus had no motive for not recording anything of significance Mr Dellar had told him. 214 I infer that the reason no such note appears is that Mr Dellar did not, in terms, mention those Acts. Mr Wicks had failed to understand that in the mid-point of their conversation Mr Dellar had switched from telling him about how nursing home beds were allocated in Tasmania and why the Department was disinclined to allow Jadwan to sell its bed licences to quite a different subject. I find it to be entirely plausible that Mr Dellar assumed (understandably but wrongly) that, as Jadwan's lawyer, Mr Wicks would have been aware that new legislation had been enacted. For his part, lacking that knowledge, Mr Wicks could not, and did not, put the two and two together to make four. 215 The relevant conversation was conducted under pressure of time. I find the most likely explanation for Mr Wicks' note is that he simply recorded the words he had heard Mr Dellar speak. Some he understood the significance of, others he did not. I find, however odd the outcome may appear in retrospect, that the potential significance of Mr Dellar's latter remarks about 1 October 1997 and beds disappearing simply passed Mr Wicks by. 216 I find it implausible, given Mr Wicks' habits as a note-taker, that had Mr Wicks understood his conversation with Mr Dellar to have conveyed to him that as from 1 October 1997 the Aged Care Act would govern the regulation of nursing homes, and for that reason Derwent Court's bed licences would disappear, he would not have made a note of what he had been told. I find it equally implausible that he would not have immediately passed on that information both to Jadwan and Mr Porter. 217 What Mr Wicks took from his conversation with Mr Dellar to be of significance was something entirely different. It is what he recorded in the last sentence of his file note: "Planning considerations could allow a N. Tas reallocation". Mr Wicks highlighted that sentence with an asterisk. He informed Jadwan shortly thereafter. 218 Whatever criticisms can justly be made of Mr Wicks I reject that he would have omitted to make a note had he been directly informed by Mr Dellar that new legislation had been passed by the Parliament which would repeal and replace the National Health Act in respect of the regulation of the aged care industry. No reason for him to have omitted to do so was suggested. 219 I therefore find that Mr Wicks had remained ignorant of the existence of the Aged Care Act and/or the Consequential Provisions Act even after his conversation with Mr Dellar on 30 July 1997.

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JADWAN'S CASE AGAINST THE FIRST RESPONDENT (7 FEBRUARY TO 1 JULY 1993) 220 Mr Wicks was admitted to practice as a solicitor in 1988 (transcript p 1571 lines 36-41). As at February 1997 Mr Wicks was aged 45. 221 Before his admission Mr Wicks had worked for the Commonwealth for the best part of 13 years, including for the then Trade Practices Commission (transcript p 1571 lines 26-30). Mr Wicks had been employed as a solicitor with the firm of Dobson Mitchell Allport and later with the firm of Murdoch Clarke before taking up a position with the First Respondent (transcript p 1463 line 41 - p 1464 line 6). His practice as a solicitor had predominantly involved commercial and property matters. He had also done a small amount of estate work. He had not undertaken court appearances (transcript p 1464 lines 16-35). He was unfamiliar with administrative law. 222 The First Respondent was a firm of solicitors. It had its main offices in Launceston, rather than Hobart where Mr Wicks was employed. No principal or partner of the firm worked from the Hobart offices. Only Mr Peter Rae, then a partner or consultant with the firm, used its Hobart offices as a base from time to time (transcript p 1464 line 44 - p 1467 line 2). Two other, more junior lawyers (Mr Andrew Wilson and Ms Tania Foale) were employees in the First Respondent's Hobart offices. Mr Wilson's area of practice was civil litigation. Ms Foale, only recently admitted, undertook work in veterans' affairs, property matters and generally as required (transcript p 1465 lines 4-16). 223 Jadwan's case against the First Respondent turns on what Mr Wicks' instructions were and what he did, or failed to do, while acting for Jadwan during his employment by that firm. 224 The First Respondent rendered a final account for Mr Wicks' services to Jadwan on 23 June 1997. It is unclear exactly when Mr Wicks ceased to be an employee of the First Respondent but nothing material appears to turn on events been 23 June 1997 and 2 July 1997 when Mr Wicks commenced employment with the Second Respondent. 225 The Hobart offices of the First Respondent had a few textbooks but otherwise did not maintain a library: "the firm used the Law Society library … two or three doors up the street" (transcript p 1465 lines 27-40). Mr Wicks could not recall ever having had the occasion to acquire a copy of any Commonwealth statute in the normal course of his practice (transcript p 1466 lines 7-9). Nor did he recall there having been (and I accept the purport of his evidence was that, as a fact, there had not been) a computer in his office or there having been any computer connected to the internet in the First Respondent's Hobart offices. 226 In early February 1997 Mr Jeff Alexander contacted Mr Wicks by phone. Mr Wicks gave evidence that Mr Alexander had told him that Jadwan had selected the firm of Rae & Partners after Mr Alexander had consulted a register listing Tasmanian law firms' contact details and areas of practice (transcript p 153 lines 31-34). Mr Wicks did not consult with any partner of the firm whether he should take on Jadwan as a client. There was no policy requiring him to have done so. Its Hobart employees determined such matters "within [their] respective areas of competence" (transcript p 1573 lines 11-23). I infer Mr Wicks proceeded on the basis that that requirement did not stand in the way of his accepting Jadwan's retainer. 227 On 7 February 1997, Mr Wicks met Mr Jeff Alexander for the first time. 228 When they met, Mr Jeff Alexander handed Mr Wicks a letter. Mr Wicks understandably could not recall the order of events (transcript p 1588 lines 40-45) but the reference in Mr Alexander's letter to their earlier telephone conversation suggests the letter was written in anticipation of, rather than after, their face to face meeting. Mr Wicks had no recall of receiving it later in the post or delivered in a different way (transcript p 1588 lines 10-14). Mr Alexander's signature in pen on the original suggests it was not sent by facsimile. 229 The letter dated 7 February 1997 was in the following terms (Ex A1 pp 1393-1458): Dear Mr Wicks I refer to an earlier telephone discussion with you when I outlined a potential problem with the Commonwealth government and Derwent Court Nursing Home. Set out below is a brief background to our concerns. The paragraphs in the letter correspond with the numbers on the relevant attachments.
1. Copy of Draft Standards Report.
2. Formal notice of unsatisfactory Report.
3. The Action our Home is taking to correct problems and a letter and list setting out inaccuracies.
4. Department of Health and Family Services (DH&FS) response to 3.
5. Because DH&FS would not amend the Report, a review was applied for.
6. On Saturday 1st February 1997, a letter was delivered by hand by the State Manager of DH&FS stating serious fire safety concerns.
7. On Sunday 2nd February 1997, a letter of reply was collected by the Manager of DH&FS.
8. On Monday 3rd February 1997, a letter and report was hand delivered to us at 8.20pm. The letter required a response by 6th February 1997.
9. Jadwan Pty Ltd response to 8. above.
10. On 6th February 1997, DH&FS was faxed with queries over approved fire safety and publishing of Derwent Court Nursing Home Action Plan.
11. On 6th February 1997, DH&FS faxed a reply.
12. From 4th February 1997, all staff, relations, unions and other were advised of DH&FS intentions. As you will see our initial concern was what we perceived to be non-factual comments in the draft Standards Monitoring Team (SMT) Report. This Report when published is available to anyone including the media. We believe segments of the report were derogatory to our staff and the Home. We believe it is prudent to seek initial advice in the early stages, but it is our hope that by our genuine actions to satisfy the Department's concerns, the matter will be resolved without legal involvement. 230 Once Mr Wicks had been briefed he opened a file for Derwent Court/Jadwan. For that purpose he used manila folders. He had secured documents, in date order, fixed by a steel pin. Larger documents were kept separately or put in lever arch files. He generally kept handwritten notes, but, when the circumstances warranted, he dictated a file note to be typed (transcript p 1466 line 36 - p 1467 line 22). 231 Mr Wicks made a detailed file note of his attendance with Mr Jeff Alexander (Ex A1 pp 4087-4092). In it he recorded Mr Alexander informing him that an issue of fire safety at Derwent Court had arisen as a result of the report of SRP-1. 232 Jadwan had initiated an "appeal" against earlier findings of a Commonwealth Standards Monitoring Team which had inspected the nursing home on 6 and 7 August 1996. Mr Wicks' file note reads: "Appeal went bad - more found". It also recorded Mr Jeff Alexander telling Mr Wicks of the following matters: that "Tasfire Building safety" had been called in and that Derwent Court "does not comply with Building Code - concern re evacuation"; that Jadwan could comply with most of the care standards "but limited by the nature of the building (size, age) as to what can be done re fire/evacuation etc"; that he had met with Mr Dellar that day: "no decision yet" (the Court infers that to have been a reference to the then threat of revocation of Derwent Court's approval as a nursing home as referred to at [57] above); that in the past the Commonwealth had wanted a lift installed at Derwent Court. Mr Jeff Alexander had wanted a guarantee of funding if it was to be installed, but such a guarantee was "not forthcoming"; the 17 year history of the Alexander family's ownership of nursing homes including one in Victoria and the legal structures of the companies through which that ownership was exercised; that there had been an earlier bad report in 1991 in which fire safety had not been a problem which he suggested had been politically motivated: "did much the same thing - they altered final report to [Jadwan's] satisfaction"; that "staff have enlisted Fran Bladel, union etc to lobby to save home"; that the findings of the SRP-2 had not yet been published: "30 days [sic] time"; that Jadwan could sell its "beds" if approval attached: "you sell the licence for the bed - worth about $12,000 each in Tas in current climate"; the perceived "ulterior motive" and saying that he believed "June Templar is biased"; that the residents of Derwent Court were largely dementia patients. 233 In these proceedings Mr Pearce submits that Mr Jeff Alexander's letter stating that Jadwan believed it was prudent to seek initial advice in the early stage conveyed a request to Mr Wicks to provide such advice. He had been retained on that premise. Mr Jackson by contrast places emphasis on Mr Alexander's statement that he hoped that by Jadwan's "genuine actions to satisfy the Department's concerns, the matter will be resolved without legal involvement". It is therefore necessary for the Court to determine the scope of Mr Wicks' retainer. 234 The 7 February 1997 letter is evidence of Jadwan's initial approach to Mr Wicks, but it is not decisive as to what was agreed between the parties as to the terms of Mr Wicks' retainer. If it constituted an offer, was it accepted? 235 In these proceedings Mr Wicks gave evidence about the instructions he received on behalf of Jadwan as he had accepted them following his discussion with Mr Alexander on 7 February 1997: My clear understanding of that initial meeting with Mr Alexander was that he simply wanted to engage a local law firm - Hobart-based law firm - to be on stand-by and, as necessary, to write letters to the department on a - I took it to be on - in relation to the - his ongoing attempts to comply with the department's requirements. (transcript p 1478 lines 35-39) 236 Asked by his counsel, Mr Jackson, as to his understanding of what, if any, advice he had been asked to provide and what he had been told by Mr Jeff Alexander regarding any future dealings with the Department, Mr Wicks gave the following evidence: [MR JACKSON:] Now, two questions. First, by the end of that conference on 7 February had Mr Alexander asked you to provide any advice in respect of any matter?---Not as I can recall. Had Mr Alexander asked you to take any particular action at all in relation to Jadwan's dealings with the department?---I do recall that as a result of that meeting there was nothing - sorry, nothing immediately to be done by me. I was to wait - await further instructions. And if I recall correctly, there was a request that any dealing that I had with the department had to be with his prior - with Mr Alexander's prior approval. (transcript p 1479 lines 11-20) 237 Mr Wicks gave evidence that he had understood the statement in Mr Alexander's letter that "[w]e believe it prudent to seek initial advice in the early stages" as requesting only that Mr Wicks make himself available as needed. Mr Wicks stated that Mr Alexander had made it clear that he, not Mr Wicks, would negotiate directly with the Department. Mr Wicks denied having been asked by Mr Alexander to provide Jadwan with general initial legal advice during their meeting on 7 February 1997 (transcript p 1480 lines 12-17). 238 Asked whether his instructions had remained unaltered until his leaving Rae & Partners, Mr Wicks responded: My understanding at that point was still that - was still that Jadwan wished to continue negotiating direct with the department in an attempt to satisfy the department's concerns about care standards at Derwent Court and building issues. (transcript p 1516 lines 44-47) 239 Asked by Mr Pearce in cross-examination about why he had been willing to accept Jadwan's instructions despite his lack of previous experience regarding the regulation of nursing homes, Mr Wicks testified: [MR PEARCE:] You have said, I think - well, there's some evidence that Mr Alexander had come to your firm because he had first consulted something called a solicitor's register?---So I understand, yes. Yes. And this was a register of law firms listing their contact details and areas of practice?---As I recall. Yes. And Mr Alexander, when he first contacted you, told him that he had been to the solicitor's register?---I believe mention was made of the fact that's how he came to pick Rae & Partners. And he told you that he operated a nursing home?---Yes. And he told you that the nursing home had some legal difficulties that it needed assistance with?---Yes. Did you say to him, "I don't know anything about nursing home or aged care law."?---I can't recall specifically doing so. It's unlikely you did that, isn't it?---Sorry? It's unlikely you would have said that to him?---It probably more likely that I would have done because I was very mindful of the fact that nursing home law, as you put it, was outside my area of competence. So is your evidence to the court that Mr Alexander came to you, said he ran a nursing home and he needed some legal assistance, and you told him, "I don't know anything about nursing home or aged care law" and he then gave you the work?---The legal assistance that he explained to me in our first meeting was simply - what he wanted was a law firm who could write letters on the company's behalf to the department as he - as he required. I see. So really, you thought all he was really seeking from you was a letterhead?---Yes. All right. And you accepted the instructions on that basis?---Yes. (transcript p 1573 line 24 - p 1574 line 11) 240 Pressed by Mr Pearce as to whether he had understood it to be ethical to accept such instructions, Mr Wicks answered that he had not understood it to be unethical "to do what I understood he [Mr Alexander] required" (transcript p 1575 line 21). The following exchange then took place: MR PEARCE: The instructions that you said he gave you were, essentially, to provide a letterhead, correct?---In - yes, very general terms. Yes. Yes. And your understanding was that it was ethical to accept instructions of that kind?---Yes. (transcript p 1575 lines 22-27) 241 Mr Pearce asked whether Mr Wicks knew about a solicitor in Victoria having been found guilty of professional misconduct for having accepted such instructions. That question was objected to by Mr Jackson (transcript p 1577 lines 26-32). Following discussion between counsel and the Court, further such questions were not pursued by Mr Pearce. 242 Examined by Mr Pearce as to his recollection of the discussions he had had with Mr Jeff Alexander on 7 February 1997, Mr Wicks gave evidence that Mr Alexander had given him a general background regarding Jadwan's position and its dealings with the Commonwealth (transcript p 1579 lines 27-30). 243 Mr Wicks conceded that he had no recollection, independent of his file, of three conversations he had later had with Mr Jeff Alexander on 12 and 13 February 1997 and 7 March 1997; a meeting he had attended in February 1997 with the Alexanders and Mr Dellar (representing the Department), and a meeting with Ms Julie Alexander on 4 March 1997 (transcript p 1579 line 40 - p 1580 line 31). 244 Mr Pearce put to Mr Wicks that his evidence about instructions as conveyed to him by Mr Jeff Alexander at their meeting was inconsistent with the final paragraph of Jadwan's letter of instructions which had been given to him at the same time. Mr Wicks, unartfully, accepted that to be the fact: [MR PEARCE:] Now, is that paragraph, or is it not, inconsistent with what Mr - with what you say Mr Alexander told you in conference, or in a telephone conversation, on or about 7 February?---Apart from the inconsistency at the start of that paragraph where he talks about "seeking initial advice", the second limb of that paragraph where he says: We hope the matter will be - will be taking genuine - genuine actions to satisfy the department's concerns, the matter will be resolved without legal involvement - that is my clear recollection of my discussion with Jeff Alexander on the day as to how he saw matters proceeding, and it's how I saw my retainer. … I think you've accepted that the first part of that paragraph is inconsistent with what you say Mr Alexander told you?---Yes. And it's inconsistent, probably, with the second part of that paragraph. (transcript p 1587 lines 26-36; p 1588 lines 18-20) 245 Mr Wicks agreed that he had neither drawn those inconsistencies to Mr Jeff Alexander's attention nor had he been troubled with any conflict as to what was expected of him: "I was simply waiting for further instructions from him" (transcript p 1588 line 34). 246 Mr Wicks conceded he had visited Derwent Court shortly after he had accepted Jadwan's retainer. His evidence was that he had done so having regard to the possibility that his instructions might broaden (transcript p 1582 lines 3-12). He strongly denied that he had done so, or had told anyone associated with Jadwan that he had done so, to check whether it was a decent nursing home because he did not want to act for one he thought sub-standard (transcript p 1581 lines 26-41). Visiting Derwent Court was consistent with his general practice. Such a practice had helped him to understand the issues, particularly in commercial matters. He was asked by Mr Pearce why he would have been concerned about knowing more about Derwent Court if his understanding had been that he was merely to provide a letterhead for Jadwan: [MR PEARCE:] I still struggle to understand why you needed to look at the nursing home if that's all you were going to do; you were just going to copy out letters provided to you by Jadwan?---I - I felt I needed to do it to better inform me of the background of this matter. To better inform the provision of a letterhead?---Of a what, sorry? To better inform the provision of a letterhead. Is that your evidence?---To give more validity to the contents of any letter I was to write if I had behind it some - if the author of the letter had at least some personal experience or knowledge of the nursing home that the author was writing about. (transcript p 1582 lines 36-46) 247 Given that it appeared to the Court possible that Mr Pearce and Mr Wicks may have been misunderstanding each other as to what Mr Wicks had intended to convey by his evidence regarding his instructions, I asked Mr Pearce to clarify the position with him. He did so as follows: MR PEARCE: Well, with respect, it's useful that your Honour has clarified that. You've heard what his Honour said. You've heard his Honour put two possible constructions on the meaning of providing a letterhead, one which is just simply cut and paste and copy what you're given; the other is actually to put some of your own personal effort into what you're given. Now, which is it, the first or the second?---Of the two, I would say it was more usually the second. There were some cases where - and I recall one case in the evidence where Jeff Alexander provided me a draft letter to go to the department with certain information. I, fairly significantly, redrafted the letter because I felt it needed more detail. But the attachments, I didn't touch them. They were as provided to me by the client. So you didn't just cut and paste what you were given by the client in respect of anything that was to go in the firm's letter; you actually applied your own work and skill to it?---I believe - yes, I did. (transcript p 1583 lines 26-40) 248 At or around the time Mr Wicks visited Derwent Court, he undertook some preliminary legal research regarding the circumstances facing Jadwan (transcript p 1590 lines 8-10). 249 He was asked in cross-examination for his explanation for having done so: [MR PEARCE:] Yes. So what's your explanation - if you thought that you were just being asked to provide, kind of, a letterhead and you just had a watching brief, and you thought that Jeff Alexander had not said anything to you about giving initial advice, notwithstanding what's in the letter, why did you then go off and do this research into the National Health Act?---I expected in the same vein as going and having a look at the nursing home, it was - I was acquainting myself with the legislative process which sat around the problems which Derwent Court was facing at the time. Up to that point, I was totally in the dark as to this particular area of the law, in fact, federal administrative law generally and I felt it - it was necessary for me to at least, if you like, get my head around the area that Jadwan was operating in and that the department was coming from. … Right. So - - -?---To familiarise myself with the sections of the Act that the department was talking about in its letter to the client. (transcript p 1590 lines 12-22; 39-40) 250 Mr Wicks conceded that as a result of his having undertaken that research he had understood the serious consequences for Jadwan of the sanctions declaration (viz that as residents moved out or died, its funding in respect of each of those beds would cease) that had been made against it under s 54E of the National Health Act (transcript p 1591 line 42 - p 1591 line 10). 251 He also accepted a proposition put to him by Mr Pearce that he had written to Mr Dellar on 12 February 1997 (Ex A1 pp 1484-1486). His letter had commenced "we act for Jadwan, which has sought our advice regarding its present dealings with the department". Mr Wicks conceded that those words were, on their face, inconsistent with his evidence that Jadwan had not in fact sought his advice at that stage (transcript p 1602 lines 12-16). 252 That concession is of little consequence. Mr Wicks gave unchallenged evidence during examination-in-chief that both that letter and a much longer letter he had sent Mr Dellar on 13 February 1997 had been sent at the specific request of, and on the basis of information provided to him on behalf of Jadwan by Mr Jeff Alexander. 253 The letter Mr Wicks sent to Mr Dellar on 12 February 1997 contained information about Derwent Court that Mr Wicks had not earlier been made aware of (transcript pp 1482-1483). 254 Mr Pearce conceded (transcript p 1484 lines 27-34) that Mr Wicks had sent the text Jadwan had earlier sent him by facsimile under Rae & Partner's letterhead. I therefore accept Mr Wicks' evidence that his letter to Mr Dellar dated 13 February 1997 in its substance simply incorporated content supplied to him by Jadwan. That content had been "passed on [to Mr Dellar] over [the First Respondent's] letterhead and [Mr Wicks'] signature" (transcript p 1484 lines 43-44). 255 Mr Wicks' file note of a subsequent telephone call from Mr Jeff Alexander on 13 February 1997 confirms that Mr Alexander had expected him to continue to provide a solicitor's letterhead for his own purposes: You [Mr Alexander] getting a detailed list of what you've done/are doing to comply to go under our letterhead? (Ex R1-3 X6) 256 I find that, whatever the ethical issues involved, Mr Wicks' instructions were given and accepted on the basis that he would provide his letterhead, such that correspondence to the Department drafted by Mr Alexander would have the appearance of having been written by a lawyer. 257 There is also evidence which I accept that, in respect of the period Mr Wicks was employed by the First Respondent, Mr Wicks' instructions constrained him not to take independent initiative. He gave evidence of that (above at [235] and [236]) and there is evidence to corroborate that assertion. Thus, when Mr Jeff Alexander wrote to Mr Wicks on 12 February 1997 to advise him regarding Jadwan's thinking as to how it might best respond to the matters which Mr Jeff Knight (of the TFS) had identified as needing to be completed as soon as possible, including the installation of a sprinkler system, Mr Alexander concluded his correspondence: "Please advise me prior to information being discussed with any government department" (Ex R1-3 X6). 258 I find that the evidence establishes that Mr Wicks was not initially retained, as superficially might appear from Jadwan's letter of 7 February 1997, to provide Jadwan with general advice, but rather to provide a letterhead for Mr Alexander's purposes to give the appearance to the Department that Jadwan had secured legal representation. Mr Alexander otherwise was to negotiate directly with the Department. Mr Wicks was asked to and agreed to be available to undertake only such specific tasks as Jadwan might subsequently request of him. 259 Against the contingency that such a finding might be made, Mr Pearce submitted that in any event there was evidence the Court should accept that subsequent to his initial retainer Mr Wicks was given specific instructions to advise Jadwan regarding how it might set aside the sanctions decision.

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8.1 Evidence of Ms Julie Alexander regarding meeting of 26 February 1997 260 Mr Pearce submitted that an answer given by Ms Julie Alexander in cross-examination about the content of a conversation she had had with Mr Wicks (the subject of a typed file note at Ex A1 pp 4210-4211 dated 26 February 1997) establishes that Jadwan later asked Mr Wicks to provide advice, and that Mr Wicks had provided advice as to whether there were grounds available to Jadwan to challenge the validity of the financial sanctions decision that had been made pursuant to s 45E(1) of the National Health Act. He had failed to give the advice Jadwan was entitled to expect of a solicitor exercising care and skill. His omission to do so had caused Jadwan to lose a chance to have set that decision aside. 261 The relevant evidence given by Ms Julie Alexander was: [MR JACKSON:] Yes. Now, you never received any advice from Mr Wicks - let's stay with you personally for a moment. You never received any advice from Mr Wicks concerning the sanction, did you?---No. That's correct. Did you ever contact Mr Wicks at any time to query why you were not getting advice about the sanction?---On 26 February after the meeting we had with the department, I had a discussion. I'm sorry, I can't hear you?---26 February, I had a - 1997 - after the meeting we had with the department, I did have a discussion with Stephen Wicks. Yes. After the meeting on 26 February, you had a discussion with Mr Wicks?---Yes. And because I was concerned that nothing was happening and I recall Stephen Wicks told me that we couldn't do anything legally unless Derwent Court was revoked and we could only make decisions on a commercial basis. (transcript p 572 lines 17-32) 262 Given the significance Mr Pearce submits the Court should attach to Ms Alexander's evidence, I set out Mr Wicks' note in full: Re: Jadwan 26 February 1997 Attending Mrs Alexander and daughter Julie in our office for approximately an hour prior to meeting with Steven Dellar and J Hargraves from Department of Health and Family Services to discuss progress with meeting of outcome standards and to generally discuss future options. Conveyed to Dellar and Hargraves our concern that the subjective nature of the comments made particularly in the final page of the Standards Review Panel report and that their personal nature particularly against the Director of Nursing. He said he heard what we were saying and made the point that he has a discretion to publish or not publish that report and that the proprietors are able to make submissions as they wish on it and those submissions may be published by him. Discussed also the problems the proprietors are having with obtaining quotes for work to be done at the Home and he said he understood. He made [it] clear though he needed to be satisfied by March 6th that the care standards had been substantially met or in the process of being dealt with. Discussed the "de canting option" which might be available to the Alexanders namely to sell or transfer beds to other Homes thereby reducing the numbers accommodated on the first floor and making evacuation considerations less critical. The Alexanders discussed in general terms the option of rebuilding and Mr Dellar mentioned the possibility of building at Rokeby had been mentioned by Jeff Alexander to him and he felt that there was a need in that area but pointed out the length of time from concept stage to completion and made the point that it would not be acceptable for the fire safety issues at Derwent Court to be left in abeyance over that period. He also referred to the possibility of negotiation standards short of what the Code requires if the matter of sprinklers or lifts are being considered and suggested that if the option of those building works were to be pursued then the Alexanders should approach Tas Fire who would put them in touch with the Building Code of Australia Referent [sic] Committee. Returning to the question of publication of the Standards Review Panel report, Mr Dellar did say that he would let us know whether he proposed to publish the report if at all. Confirmed at the end of the meeting that he was awaiting further contact before 6th March before deciding what he would do in respect of the revocation decision. We pressed the point of obtaining some sort of assurance with respect of compliance with standards in the future if the Home went ahead and installed a lift and sprinkler system. Discussed also the possibility of adding on at the back to create more room. Steven Dellar would and understandably could not commit himself in this regard. We worked point by point through progress with meeting the other fire requirements and Dellar seemed generally happy with what has been done to date. Alexanders to report back to him before 6th March with more information on their compliance with care standards and he said in this regard that date is a definite deadline. On return to the office discussed at length with Mrs Alexander and Julie future options and said that I really can't assist in any way because they need to make what in fact are basic commercial decisions as to how they will proceed but they should be mindful of the fact that if they cannot comply or cannot continue to comply of if they can't get any assurance in this regard given the age and the manner of construction of Derwent Court then the ultimate option may only be to sell the beds and sell the real property and relocate all their efforts and funds back to Victoria where I understand the Nursing Home there is performing well. Mrs Alexander also mentioned the possibility that there could be a problem with the Director of Nursing, Sister Bench, and it would appear there was perhaps some truth in the Standards Review Penal comment about her having been too long in the job. It appeared from what Mrs Alexander was saying was that the Director of Nursing has not been keeping up with current trends and is one of the "old school" of nurses. I sad this introduced another serious matter for them to consider that is whether compliance with care standards would come somewhat easier if fresh and more competent staff were employed in the place of the existing one[s]. There was little further I can do and I am not able to advise them on the commercial aspects of any of the options before them but they should consider them further and I would be happy to assist in any way possible. I did say that I felt that under the circumstances if a decision was made to revoke the approval then it may be difficult to challenge that decision through the appeal processes open unless they could clearly demonstrate that they did in fact meet the care standards and that the Standards Monitoring Team or the Review Panel were incorrect in the assessments of the premises. I said however there was no room for misinterpreting the question of fire safety it has to be dealt with in some meaningful way. (Ex A1 pp 4210-4211) 263 The discussion Ms Julie Alexander gave evidence about took place after a meeting she had attended with her mother and Mr Wicks (on Jadwan's part), and Mr Dellar and Mr Hargrave from the Department "to discuss [Jadwan's] progress with meeting of outcome standards and to generally discuss future options". 264 The reference to "progress with meeting of outcome standards", I infer, related to the undertakings which had been given by Mr Jeff Alexander on 6 February 1997 (as set out at [58] above). Those had included: In relation to fire safety, on behalf of Jadwan Pty Ltd I give the undertaking to complete the works listed below. The undertaking is given after consideration of the Kerr Lewit Clark and Kidd Report dated 4 February 1997, and the Survey Report following the Tasmania Fire Service fire safety inspection on 4 February 1997. … With regards to the non-compliance of standards under Section 45D of the National Health Act 1953, the Director of Nursing and I undertake to thoroughly review all standards and seek outside assistance in our endeavours to satisfy the standards. Detailed information on the plans to achieve this outcome will be supplied within 28 days of any deferral of revocation of Approval. 265 Those undertakings had been given by Mr Jeff Alexander prior to Mr Wicks having being retained by Jadwan. They since had been made known to Mr Wicks. During their first meeting on 7 February 1997 Mr Alexander had mentioned the difficulty of achieving compliance with fire standards in a building limited by its size and age as Derwent Court (Ex A1 p 4089). In the same discussion, Mr Wicks had also been made aware that Jadwan was giving consideration to the alternative of selling Derwent Court's beds (Ex A1 p 4091). 266 The latter part of Mr Wicks' note recording his discussion with Ms Julie Alexander and her mother must be understood as having been informed by that background. 267 Both Ms Julie Alexander and Mr Wicks knew that the axe hanging over the head of Derwent Court (the possibility that Derwent Court's approval as a nursing home would be revoked) was still raised. As Mr Wicks' file note records, Mr Dellar had told those representing Jadwan that "he was awaiting further contact before 6th March before deciding what he would do in respect of the revocation decision". The import of what Mr Dellar had told the three of them was clear. 268 The note Mr Wicks later made about what he had said in conversation with Ms Julie and Mrs Joan Alexander that it might be difficult to challenge any later decision to revoke the approval of Derwent Court unless Jadwan achieved compliance with required standards of fire safety, was no more than a statement of the obvious. 269 To the extent Mr Wicks' observation is capable of being construed as legal advice, it was self-evidently correct. As the reasoning of the plurality in Jadwan No 4 makes clear, the Minister did not need a further report of a validly constituted Standards Review Panel to give effect to that threat (at [45]): The earlier Full Court had some difficulty in characterising the error that it found affected the decision to revoke approval. In the end, it chose to characterise the error as one of taking into account an irrelevant consideration, by treating the findings of the panel as having been made by a properly constituted panel. As the reasons of the Court show, it would have been perfectly proper for the Minister's delegate to take into account the views of the panel as the collective views of three people. It was only the decision-maker's ignorance as to the qualifications of a panel member that might have resulted in more weight being given to the views of the panel than would otherwise have been the case. It is not obvious that this is a finding of jurisdictional error. There is no suggestion that the Minister's delegate failed to understand the task to be performed. There is every reason to suppose that an error in giving too much weight to evidence, because of ignorance as to the true status of the persons providing that evidence, would have been regarded as something less than jurisdictional error. 270 Nothing recorded in Mr Wicks' note had anything to do with him giving advice regarding the legal soundness of the sanctions decision. In cross-examination Mr Pearce read portions of Mr Wicks' note to him. On the basis of those portions read to him, Mr Wicks conceded that they appeared to show he had provided legal advice to Ms Alexander (transcript p 1637 line 45 - p 1638 line 34). I discount that concession as of no consequence. Objectively, read as a whole, and in context, his note does not give that appearance. 271 Nothing in Mr Wicks' note of 26 February 1997 is objectively capable of being understood as Mr Wicks advising Jadwan that it could not challenge the validity of the sanctions decision that had been made pursuant to s 45E(1) of the National Health Act unless Derwent Court's approval as a nursing home was revoked. 272 To the contrary, I am satisfied that the evidence contained in Mr Wicks' contemporaneous note is inconsistent with Mrs Joan and Ms Julie Alexander having asked Mr Wicks to provide Jadwan with legal advice regarding the prospects of it successfully challenging the sanctions decision. If it needs to be said, it is also inconsistent with Mr Wicks having been instructed to initiate such a challenge. 273 I find that the evidence recorded in Mr Wicks' detailed contemporaneous note of some 20 years ago is to be preferred over Ms Julie Alexander's current recall. I am unpersuaded that Ms Alexander's subsequent recall can be accepted as accurately reflecting the content of the conversation she and her mother had had with Mr Wicks. 274 I do not suggest Ms Alexander's evidence was not her honest recall. However, having regard to the note Mr Wicks made of their discussions I am satisfied her memory of the conversation is implausible. I note that Ms Alexander, earlier in her testimony, conceded she personally had never received advice from Mr Wicks concerning the sanctions. 275 I reject Mr Pearce's submission that the Court should accept Ms Julie Alexander's testimony as a foundation for a finding that Jadwan had asked Mr Wicks, while an employee of the First Respondent, to provide advice, or that Mr Wicks provided advice, as to whether there were grounds available to Jadwan to challenge the validity of the financial sanctions decision that had been made pursuant to s 45E(1) of the National Health Act.

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8.2 Evidence of meeting between Mr Wicks and Mr Alexander on 8 April 1997 276 Mr Pearce further submits that Mr Wicks' file note of 8 April 1997 contains a statement that entitles the Court to find that on that occasion, Mr Wicks gave legal advice to Mr Jeff Alexander that there were no grounds available to Jadwan to challenge the validity of the financial sanctions decision made pursuant to s 45E(1) of the National Health Act. 277 The evidence Mr Pearce relies on is as a note made by Mr Wicks as follows (Ex A1 p 4115): Pointless challenging composition/bias SRP anyway. 278 In examination-in-chief Mr Wicks testified that he had made that note as a record of what Mr Jeff Alexander had said to him. However, in cross-examination Mr Wicks conceded, upon it having been put to him by Mr Pearce that the language of his note was inconsistent with the statement being that of a client speaking to his lawyer, that that part of his note appeared to record not what Mr Alexander had told him, but what he had said to Mr Alexander (transcript p 1502 lines 3-6). Mr Wicks further accepted, on that premise, that what he said would have conveyed to Mr Alexander his view that it would be pointless to challenge the revocation decision on the grounds of the SRP-1's composition or bias. By way of explanation, Mr Wicks then gave evidence as his present recall that it had "then appeared to me that the department could simply do it again and get it right" (transcript p 1642 line 38). 279 The context in which Mr Wicks made that note is highly relevant. Mr Wicks had received a telephone call from Mr Jeff Alexander on 4 April 1997 (Ex R1-3 X6). In that phone call Mr Alexander told Mr Wicks that Derwent Court had had a visit from "someone" from Canberra on 12 and 13 March 1997. In the events that followed, I infer that was a reference to the Commonwealth Standards Monitoring Team as headed by a senior interstate member that had inspected Derwent Court on 12, 13 and 17 March 1997. 280 Mr Wicks' file note of his attendance with Mr Alexander of 8 April 1997 commences with the words "errors in statement (you can't comment on nursing matters)". What the "statement" was is not specified but Mr Wicks' file note later refers to a "new SMT report". 281 I infer that by the time Mr Alexander and Mr Wicks met on 8 April 1997: (a) Jadwan had been informed of that highly adverse report; and (b) the words "errors in statement" refer to what Mr Wicks was told by Mr Alexander about its contents. More specifically in that regard, Mr Wicks' file note records that Mr Alexander told him that "they [the Standards Monitoring Team] are concentrating on policies, procedures and practices as per the new (draft) standards". Mr Wicks' file note then refers, inter alia, to Derwent Court's Director of Nursing having resigned. 282 The material parts of Mr Wicks' file note then records as follows: - nothing we can do at this stage - you'll speak with Ms Pane - maybe SRP needn't come through the place again - pointless challenging composition (bias) SRP anyway - clearly new SMT report is a further problem that needs to be dealt with - Department is obviously seeing that they 'get it right' so AAT review is less likely of their actions/decisions. (Ex A1 p 4115) 283 I am satisfied that those observations were made in circumstances in which Mr Wicks and Mr Alexander were discussing what both of them understood to be the heightened risks then facing Jadwan that Derwent Court's approval might be revoked. That their discussion was focussed exclusively on that question is reinforced by the reference in Mr Wicks' file note both to the new Standards Monitoring Team report and the apparent desire of the Department to "get it right" so a review conducted by the Administrative Appeals Tribunal (the AAT) would be less likely. Merits review in the AAT was available for a revocation decision but not a sanctions decision. 284 Despite Mr Wicks' concession that the language of his note that it would be "[p]ointless challenging composition/bias of the standards review panel anyway" was inconsistent with the statement being that of a client speaking to his lawyer, the Court is not persuaded that it should attribute that statement to Mr Wicks. Having regard to the context in which that statement appears it is equally possible that it was a conclusion expressed by Mr Jeff Alexander. In that regard, I note that when Jadwan finally received notice of Ms Halton's intended revocation of Derwent Court's approval, Mr Jeff Alexander had stated that there was so much against Jadwan that he believed an "appeal may not be worthwhile" (Ex A1 p 4132). 285 Even assuming, as I decline to find, that the Court is entitled to find that Mr Wicks' note records the substance of what he said to Mr Alexander on 8 April 1997, that does not prove (and, in terms, is incapable of proving) that Mr Wicks thereby gave legal advice to Mr Alexander that there were no grounds available to Jadwan to challenge the validity of the financial sanctions decision. It simply records an opinion that to pursue such a course would be pointless. To equate those two propositions would be a categorical error. 286 I am satisfied that in so far as the passage of Mr Wicks' file note relied upon by Mr Pearce is open to be read as the expression of a legal opinion, it was not that there were no grounds to challenge the sanctions decision. The legal opinion, if given, understood in context, was that as a device to prevent the Department taking action to revoke Derwent Court's approval as a nursing home, to commence such a proceeding would be pointless. It would not stop the Minister relying on other circumstances, including the recent more critical report of a Standards Monitoring Team (headed by a senior departmental officer from interstate) as a reason to revoke Derwent Court's approval. 287 Assuming that in making that observation Mr Wicks gave legal advice to Mr Alexander, the legal advice he gave was sound. The validity or otherwise of the original sanctions decision was not legally relevant to whether a still threatened revocation decision might properly be made. 288 That the Minister may have later proceeded on the erroneous premise that a report of a Standards Monitoring Team was a precondition for the valid exercise of his power to revoke Derwent Court's approval is irrelevant. 289 I reject Mr Pearce's submission that the Court is entitled to conclude that Mr Wicks' file note of 8 April 1997 proves that Mr Wicks gave legal advice to Mr Jeff Alexander that it would be pointless to challenge the validity of the sanctions decision because no grounds for such a challenge (on the basis of composition and/or bias) existed. His file note of 8 April 1997 establishes neither that he was asked to provide such advice nor that he proffered it. 290 Having rejected those propositions pressed by Mr Pearce on behalf of Jadwan as indicating that Mr Wicks had been asked for legal advice which he had failed competently to provide, I return to the issue of his general instructions. 291 Mr Wicks' evidence that he was not given any instructions other than those referred to at [235] to [245] above is consistent with the record revealed in Mr Wicks' file notes regarding what he did and did not do. His file notes disclose Mr Wicks did nothing of substance for Jadwan during the period he was employed by the First Respondent unless in response to an identifiable request. Mr Wicks sent letters (the content of which had been drafted by Mr Alexander); he attended meetings when he was asked to by Mr Alexander; and he prepared documents (such as a business plan) when asked to. Otherwise he did nothing. 292 I accept Mr Wicks' evidence that his initial visit to Derwent Court and the brief legal research he undertook were each done only in order that he would at least have some idea about what Jadwan's business involved if his instructions were to evolve. As Mr Wicks frankly acknowledged, before he had accepted Jadwan's retainer he had been "totally in the dark about this particular area of the law, in fact federal administrative law generally" (transcript p 1590 lines 19-20). 293 As is the import of Mr Pearce's cross-examination, a more prudent solicitor with insight into his strengths and weaknesses may have declined to accept Jadwan's instructions or might have reconsidered acting for Jadwan once he had become aware of the serious challenges that company was facing. 294 But wisdom after the event is irrelevant to what Mr Wicks' actual instructions were in respect of the period during which he was employed by the First Respondent. 295 The risk Mr Wicks ran (a risk that a more prudent solicitor would have foreseen and chosen to not to take) that Jadwan might instruct him to provide it with legal services beyond his admitted lack of competence did not then manifest itself. 296 I am satisfied that Mr Wicks' retainer and instructions, if only by good luck, remained throughout his employment with the First Respondent as he gave evidence in these proceedings. They did not expand. On 7 February 1997 Mr Jeff Alexander had identified what Jadwan was asking him to do: to provide a letterhead for Jadwan's purposes and stand ready for such further specific tasks as he might be asked to undertake. That is what Mr Wicks had agreed to do. I accept Mr Wicks' evidence that he had done what he had been asked to do, and only that. He was never later asked to provide Jadwan with the legal advice Mr Pearce submits he was. His instructions remained as they were agreed at the outset. 297 I infer that Mr Alexander had wanted the Department to think Jadwan had instructed Rae & Partners to give the appearance that Jadwan was prepared to commence legal proceedings if it did not get its way through negotiations. 298 But the appearance Jadwan thereby intended to convey did not equate to the reality it intended to prevail. I find that Mr Wicks was retained expressly on the basis that Mr Jeff Alexander was to continue to negotiate directly with the Department to satisfy its concerns about care standards at Derwent Court and building issues. When it suited Mr Alexander to give the appearance of acting with legal advice, Mr Wicks was to be the vehicle for those representations. Mr Wicks was otherwise to take no action until Jadwan specifically requested he do so. 299 Mr Wicks accepted those constraints and, while employed by the First Respondent, acted for Jadwan conformably with them. To put it crudely, Mr Jeff Alexander retained Mr Wicks to give the impression that if the Department would not accommodate Jadwan's interests, Jadwan was prepared: it was lawyered up and ready for a fight. To the later misfortune of both parties to that arrangement, that was an illusion. 300 The Court has been unable to identify any instance in which Mr Wicks added anything of legal consequence beyond his possession of the status of a legal practitioner. His editing of letters drafted by Mr Alexander and their prefacing with language such as "we act for Jadwan, which has sought our advice regarding its present dealings with the department" was pure illusion. He went to meetings as requested to foster that illusion. There is nothing in his notes to suggest he played any role of substance. 301 The only role of significance Mr Alexander did ask Mr Wicks to undertake was to assist Jadwan to prepare a business plan. Ironically, that task did not require Mr Wicks to possess or apply any legal skills. 302 However humiliating, and whatever professional criticisms might be open to be made of his being willing to accept instructions on that basis, I accept Mr Wicks' evidence regarding his retainer. His evidence is consistent with what his notes reveal of what he did. I accept Mr Wicks' evidence regarding the character of and limits to his instructions over the period of time he was employed by the First Respondent. 303 I reject Mr Pearce's submission that the Court should find it implausible that Mr Wicks could have a present memory of the character of his instructions but not of certain other more specific matters in relation to which he was cross-examined. The character of such instructions stands in quite a different position to those matters.

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JADWAN'S CASE AGAINST THE SECOND RESPONDENT (2 JULY TO 12 SEPTEMBER 1997) 310 Before Mr Wicks left Rae & Partners he informed Mr Jeff Alexander that he had been offered a position with Wilson Dowd (the Second Respondent). As a result of that discussion, Mr Wicks understood that "…the [Jadwan] file would follow me" (transcript p 1516 line 31). It is uncontentious that that occurred. The circumstances in which that happened are detailed below. 311 The First Respondent had rendered a final account to Jadwan for Mr Wicks' services on 23 June 1997. Mr Wicks gave evidence that as at the time of his ceasing employment with the First Respondent, his understanding had been that there was nothing outstanding required of him by Jadwan. 312 Mr Patrick Toomey had earlier approached Mr Wicks to ask if he was interested in leaving Rae & Partners and working with him. Mr Wicks commenced employment with the Second Respondent on 2 July 1997. 313 Wilson Dowd was an incorporated firm of legal practitioners. Mr Wicks' evidence was that the Second Respondent had been formed after Mr Toomey "in the guise of the firm Toomey Maning and Co had elected to join forces…with Wilson Dowd which at the time … comprised principals John Lewinski and Tony Dowd" (transcript p 1517 lines 23-29). 314 Mr Wicks gave evidence that Wilson Dowd had had an office in Davey Street in Hobart. He could not recall his having had a computer but his personal assistant was competent in email. He could not recall whether Wilson Dowd had had a better library than Rae & Partners; he gave evidence that he thought that was unlikely because, like Rae & Partners, Wilson Dowd was a small firm and not sufficiently resourced to provide a comprehensive and up to date library. His evidence was that he expected he would have continued to use the Law Society library for any research (transcript p 1518 lines 3-5). 315 Mr Wicks gave evidence that "when [Mr Toomey] approached me to make the move and interviewed me for the positon we would have talked about, "Well what's coming with me?" And I would have mentioned the Jadwan matter" (transcript p 1572 lines 37-41). 316 That is the only evidence of any discussions between Mr Wicks and the Second Respondent about the wisdom or otherwise of Mr Wicks continuing to act for Jadwan. 317 Mr Wicks had worked closely with Mr Toomey but was not subject to his supervision. There was no practice within Wilson Dowd requiring correspondence containing legal advice to be signed by a partner (transcript p 1572 lines 46-47). 318 Mr Wicks could not recall ever speaking to Mr Toomey about his handling of the Jadwan file (transcript p 1572 lines 20-44). 319 From Mr Wicks' perspective, nothing had changed between 23 June and 2 July 1997 to cause him to revise his understanding of his instructions from Jadwan as at the time he commenced his employment with the Second Respondent. His instructions, he gave evidence, remained as they had been while he had been employed by the First Respondent. Jadwan would continue negotiating direct with the Department to satisfy its concerns about care standards and building issues. His role was not to be proactive but to be on hand as required and, expressly, to communicate with the Department on the company's behalf as and when that was specifically requested of him (transcript p 1516 line 3 - p 1517 line 20).

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9.1 Jadwan's problems mount 320 On 2 July 1997, the morning of his first day as an employee of the Second Respondent, Mr Wicks received a telephone call from Mr Jeff Alexander who was in Melbourne. Mr Wicks still did not have his file from his time at Rae & Partners. He therefore opened a temporary file. Mr Wicks' note of that call records Mr Alexander informing him that Jadwan was still awaiting a response from Canberra (Ex A1 p 4128). In the circumstances, I infer that "a response from Canberra" refers to what the Department and the Minister might ultimately decide regarding Derwent Court's approval as a nursing home. 321 Mr Jeff Alexander's call conveyed worrying news. The TFS had "gone sour" on the possibility of Jadwan installing a downstairs fire door. The verbal approval it had earlier given for the smoke door had "been gone back on". 322 The TFS, represented by Mr Knight, was "also unhappy with 3 year timetable". 323 In that regard I am satisfied that Mr Wicks' file note of 2 July 1997 is to be understood as a contemporaneous record of Mr Alexander telling Mr Wicks that the TFS was not happy with the period Jadwan had in mind for bringing Derwent Court into compliance with fire safety standards (transcript p 1519 lines 35-44) or relocating to new premises. The TFS now wanted "a package" between it and the Commonwealth "as to requirements". 324 In retrospect, ominously Mr Wicks' note also recorded that Mr Dellar had had his authority to speak to Mr Alexander withdrawn. 325 Mr Alexander informed Mr Wicks that he was "more inclined to sell and get out". He wanted to "push Anne Thorpe", a senior officer in the Department. I infer that to mean that Jadwan wanted to push the Department to permit it to sell its bed licences. Mr Alexander was going to talk to a marketing firm that day. 326 It appears nothing specific was asked of Mr Wicks by Mr Alexander during that phone call. He reminded Mr Jeff Alexander to get the file for him. He could not recall whether the file had been delivered by 7 July 1997 (transcript p 1518 line 17 - p 1519 line 9), but it is uncontentious that it was returned to Mr Wicks around that time. 327 On 7 July 1997 the Aged Care Act and the Consequential Provisions Act each were given royal assent. 328 On 7 July 1997 Mr Wicks received a further call from Mr Alexander. Mr Wicks' file note (Ex A1 p 4128) records that Mr Alexander explained that he had arranged a meeting with Ms Jenny Hefford and Ms Anne Thorpe (representing the Department); Mr Knight and Mr Leon Carr (representing the TFS); and Jadwan. The meeting had been scheduled for 2.00 pm on 17 July 1997. Mr Alexander told Mr Wicks he would call him to make a time for them to meet before then. 329 During that telephone call Mr Alexander told Mr Wicks that staff morale at Derwent Court was "very low". Five residents had passed away. I infer that was a reference by Mr Alexander to Derwent Court not being able to accept any new residents (with Commonwealth subsidy attached) whilst subject to the sanctions decision in force (see [56] above).

[41]

9.2 Jadwan decides to "get out" 330 On 15 July 1997 Mr Wicks met with Mr Jeff Alexander and Ms Julie Alexander. I am satisfied that that meeting took place, inter alia, to plan Jadwan's approach to the meeting with Departmental officials and the TFS scheduled for 17 July 1997. Mr Wicks made a note of that meeting (Ex A1 pp 4130-4131). I am satisfied that the term "you" in that note most likely refers to what Mr Alexander said, although it might also extend to remarks made by Ms Alexander. In any event, I would construe such references as being to things said by one or other of them on behalf of Jadwan. 331 At that meeting Jadwan told Mr Wicks that Mr Knight still wanted "a package" (see [323] above) and that Mr Knight remained of the view that three years would be "too long for relocation". 332 The reference to Mr Knight informing Mr Alexander that three years would be too long for relocation needs some additional context to be understood. 333 Other evidence in these proceedings entitles the Court to infer that, following the SRP-1 report, Mr Jeff Alexander had turned his mind to whether Jadwan might be best served by relocating its nursing home business from Derwent Court to new premises. He had spoken to Mr John Calder of Tasmanian Building Services. In a letter dated 17 March 1997 Mr Calder referred to their "recent discussions" and provided Jadwan with an estimate of $3,152,760.00 (subject to a number of exclusions) for the cost of constructing a "51 bed complex with a fully enclosed floor area of approximately 2,300 square meters, on a near level greenfield site". The full text of Mr Calder's letter appears in Jadwan No 5 at [15]. 334 I infer that Mr Alexander had in that process or by some other means become aware that to construct new premises for relocation would take in the order of three years. I further infer that he had asked Mr Knight whether the TFS might allow Jadwan to continue to accommodate its residents at the existing facility if it undertook to relocate. The TFS had responded that three years would be too long. 335 In Mr Wicks' file note there is a reference to "purchaser" and, crucially, "you have decided to get out" (Ex A1 pp 4130-4131). 336 What Mr Wicks was told by Mr Jeff Alexander and Ms Julie Alexander on 15 July 1997 is consistent with what Mr Alexander had earlier told Mr Wicks he was contemplating: that he was "more inclined to sell and get out" (see at [325] above). I am satisfied that the meaning to be attributed to the words Mr Wicks recorded on 15 July 1997 is that Jadwan had decided to get out of operating Derwent Court and they intended, if possible, to sell its bed licences. 337 On the next line were the words: "you to stress you'll be relocating" followed by "advertise - tender". I am satisfied that those words read in their context refer to what Jadwan was planning to tell the Department and the TFS of its intentions - it would stress to their representatives that Jadwan was prepared to advertise and seek tenders for the construction of a new nursing home to replace Derwent Court. 338 What more, if anything, should be read into those words in this context is in dispute. Mr Pearce relies on those words as expressing Jadwan's actual intentions; Mr Jackson by contrast submits that they refer to what Jadwan was proposing to tell the Department and the TFS notwithstanding that Jadwan's real intention to "get out" was already settled. 339 I am satisfied Mr Wicks' file note on 15 July 1997 entitles the Court to find that Jadwan's actual intention was the latter. I find that by that time Jadwan's directors no longer had any expectations that Jadwan would be offered a "package" at the forthcoming meeting that would allow it to relocate Derwent Court because, as Mr Wicks' file note records, they knew (a) that the TFS had had a "change of mind from bottom to top of stairs" and now would require installation of a "smoke door" and "major works"; and (b) that even if Jadwan was prepared to undertake those works to bring Derwent Court's fire safety up to acceptable standards, a three year transitional timeframe was too long. I conclude that Mr Alexander and Ms Alexander were informing Mr Wicks that in the light of such considerations, Jadwan's directors had decided to "get out". 340 The content of Mr Wicks' file note is consistent with Jadwan's directors telling him about their decision and explaining the reasons for it. Thus Mr Wicks notes "worst scenario - no residents top floor - 2/3 income drop (sprinklers and a lift) - 35 residents - home not viable" (Ex A1 p 4131). There is nothing to suggest Mr Wicks had had any idea of the number of residents necessary for Derwent Court's financial viability. 341 I am satisfied that Jadwan's directors were intending to stress in their meeting with the Department and the TFS on 17 July 1997 that Jadwan still hoped to relocate not because that was (if it ever had been) Jadwan's true intention but as a negotiating position designed to convince the Department that it should agree to Jadwan being allowed to sell Derwent Court's bed licences. 342 I accept that before the TFS had changed its mind Jadwan had been exploring with Mr Calder of Tasmanian Building Services how long it would take and how much it would cost to construct new premises on a greenfield site. I acknowledge that Mr Calder later sent Mr Jeff Alexander a letter dated 16 July 1997 stating that "a reasonable minimum" timeline for that to happen was 104 weeks (Ex A1 pp 1906-1907). However, even assuming that Jadwan may have asked Tasmanian Building Services to provide it with that information after rather than before its directors told Mr Wicks they had decided to "get out", that is not evidence that Jadwan then had a different intention. Requesting such information from Mr Calder is consistent with Jadwan's intending to stress to the Department that it was planning to relocate. Jadwan knew it needed the Department's consent to sell Derwent Court's bed licences. If Jadwan was to persuade the Department to give its consent, it needed a bargaining chip. Using Mr Calder's letter for the purpose of suggesting Jadwan would otherwise try to continue to operate Derwent Court would have been consistent with Jadwan wanting to make the best of its weak hand. 343 I reject the evidence of Mrs Joan Alexander that as at that time Jadwan had not wanted to sell its bed licences (transcript p 486 lines 12-14). Mrs Alexander conceded in cross-examination that "there might have been talk about it". She acknowledged that Jadwan had procured expressions of interest for their sale (transcript p 486 lines 16-20). Consistently with my general assessment of Mrs Alexander's credit I do not regard her evidence that as at that time Jadwan had not wanted to sell its bed licences as intentionally false, but I am satisfied her recall of events some 20 years later in these proceedings is inconsistent with the more reliable record revealed by notes that Mr Wicks made at that time.

[44]

9.5 Jadwan expresses concern about the cost of redundancies and seeks approval to sell Derwent Court's bed licences 349 A number of file notes Mr Wicks was referred to while giving evidence were not tendered as part of Ex A1. However as noted they are in evidence as part his reconstituted file (pages un-numbered but in chronological order) as Ex R1-3 X6. 350 One such file note is dated 22 July 1997. It reads as follows: Stephen Dellar - no joy *foreshadowed starting to move residents out this Friday - funds go with the residents ½ to St Johns Park … ½ to Rosary Gardens… redundancies will break coy [company] - sale of beds - 48 hrs… Payroll @ $50,000 pw: Redundancies $400,000 351 Mr Wicks was unable to recall the circumstances in which he had made that note, but he gave evidence that the reference in it to redundancies must have come from information given to him by Jadwan (transcript p 1547 lines 35-36). He had had no involvement with Jadwan's negotiations about redundancies. Mr Wicks was not cross-examined to suggest otherwise. 352 The Court is entitled to infer that Mr Wicks' note of 22 July 1997 records what he had been told by one of Jadwan's directors about what Jadwan had earlier discussed with Mr Dellar. The terms of the note make clear that Jadwan did not consult Mr Wicks before making that approach to Mr Dellar. Given that Mr Alexander was Jadwan's predominant director and had to that point taken lead responsibility for negotiating with the Commonwealth, I am prepared to infer that it was Mr Jeff Alexander who had reached out to Mr Dellar and that on 22 July 1997 he was informing Mr Wicks of the outcome of his approach. 353 I find, in that context, that the words "redundancies will break the [company] - sale of beds - 48 hrs" disclose that Mr Wicks was told by Mr Alexander that Jadwan had expressed concern to Mr Dellar that Jadwan having to meet the cost of redundancies for its staff could break the company. I infer that Mr Alexander had asked Mr Dellar whether the Commonwealth would consider picking up those costs. 354 I find that it further discloses that Mr Alexander had also requested the Department to allow it time to sell its bed licences. Mr Dellar had offered Jadwan only a short window of 48 hours for it to do so. That the Commonwealth made an offer in those terms is not contentious. Mrs Joan Alexander gave evidence that after the revocation notice had been served, Mr Dellar had told Jadwan that it had 48 hours in which to sell its bed licences (transcript p 486 line 23). I infer that the words "no joy" disclose that Mr Alexander did not think Jadwan would be able to find a buyer in that time frame. 355 I infer the words "foreshadowed starting to move residents out this Friday - funds to go with the residents" disclose that Mr Dellar had told Jadwan that the Department was planning to begin moving Derwent Court's residents to other nursing homes, assuming Jadwan could not secure a purchaser for its bed licences in those 48 hours.

[45]

9.6 Fast moving events overlap: Mr Wicks briefs counsel - Jadwan accepts Commonwealth's offer to meet the cost of redundancy payments 356 Mr Wicks gave evidence that very soon after he had become aware of Ms Halton's notice of intention to revoke Derwent Court's approval he had spoken to Mr Jeff Alexander. He sought Jadwan's instructions to brief counsel. His explanation for doing so was as follows: Once the notice of intention to revoke was issued by the Department, it became clear to - to me that the Department were inexorably heading down the path of closing down Derwent Court, and that the matter had, if you like, escalated to a - a degree of seriousness where I believed that external advice needed to be obtained as to Jadwan's position and its options to protect its position generally. (transcript p 1533 lines 28-33) 357 He had contacted Mr Porter, ascertained what Mr Porter's fees would be and had advised Jadwan. It is uncontentious that Mr Wicks promptly obtained instructions from Mr Jeff Alexander to brief Mr Porter. 358 Mr Wicks had a short telephone conversation with Mr Porter on 23 July 1997. Mr Porter advised Mr Wicks to "put them [the Department] on notice immediately against moving residents" (transcript p 1548 lines 17-28). Mr Wicks had done so by letter of the same date. His letter to Ms Halton and the response from the AGS are set out respectively at [69] and [70] above. 359 However, before further speaking to Mr Porter, Mr Wicks learnt of new developments. 360 A handwritten file note made by Mr Wicks reveals Mr Wicks had a ten minute conversation with Mr Alexander prior to meeting with Mr Porter on 24 July 1997 (Ex R1-3 X6 marked "24/7" on the top right corner). It records Mr Alexander informing Mr Wicks that the Commonwealth "will fund redundancies for nursing staff (80% of redundancy bill)". 361 I infer from that note that Mr Alexander told Mr Wicks that his earlier contact with Mr Dellar had led to the Commonwealth agreeing to meet 80% of the cost of Jadwan's redundancy obligations for its staff at Derwent Court.

[46]

9.7 Mr Wicks raises issues 362 With responsibility for briefing counsel, for the first time Mr Wicks questioned the strategy that Mr Alexander had employed in his negotiations with the Department. 363 Mr Wicks' file note includes a starred notation "[n]otices hopefully today but if you give notice and get a 'stay' you'll have patients to still care for with no staff" (Ex R1-3 X6 marked "24/7" on the top right corner). 364 I find that when Mr Alexander informed Mr Wicks that Jadwan hoped to give its staff notice of termination later that day Mr Wicks, concerned about the inconsistency, had asked him how Jadwan would be in a position to provide care for any residents at Derwent Court if it was successful in obtaining a stay. 365 There is no record of any response to that question. 366 A few lines later are the words: "how will you prove what you've done in period from last SRP 'til now?" 367 Again there is no record of any response. 368 On 24 July 1997 at 10.00 am Mr Wicks met with Mr Porter at Mr Porter's chambers. Mr Wicks made a typed file note to record what he later told Mr Alexander about his meeting with Mr Porter (Ex A1 p 4144): Thursday, 24th July, 1997 After attending with David Porter in Chambers I telephoned Jeff Alexander and explained the options that appeared to be open to us. Immediate concern of course is to prevent patients being moved from the home. Jeff pointed out that the first patient is apparently going to be moved at 1:00 p.m. today. I said that I intend writing to the Department via the Australian Government Solicitor and ask that they hold off the re-location of patients. This may or may not be effective. If it is not effective and they cannot advise immediately the next way of preventing the patients being moved would be to seek an injunction through the Federal Court. The bases on which the injunction would be sought are not yet clear and David Porter described it as being perhaps a high risk application and the costs of which could run into the order of $2-$3,000.00 with Affidavits etc and the actual hearing of the injunction. If the injunction did prove to be successful then we would at least have time to pursue first of all a review of the decision by the Minister and if that was not successful, an application to the AAT for review of the revocation decision. It would appear to be fairly predictable what the Minister's attitude would be to an application for review of the decision. We would then have to go to the AAT, costs of which could exceed $5,000.00 +. A problem we could strike ultimately pursuing the matter through the AAT would be, at the best result, a decision by the AAT quashing the revocation decision. However, it would appear that from that point, the Department could simply turn round and "do it all again" and perhaps come up with the same decision properly arrived at. Of course, if the patients had been moved out then the home would be in a position of having no patients for the beds, no staff etc. Jeff agreed that I should get a letter to the AGS immediately regarding removal of the residents at least as an attempted holding measure. He said he would discuss with the family the question of further courses of action and likely costs and let me have his thoughts on that later. 369 I am satisfied that the core of what Mr Wicks told Mr Alexander about the risks associated with, and likely costs of, potential future legal proceedings reflected what he had been told by Mr Porter in those regards. Mr Wicks had little capacity to form an independent judgement about those matters. 370 However I reject that what Mr Wicks records in that note as the advice and explanations he provided to Mr Alexander did not also represent and convey his opinions. I am unpersuaded of Mr Wicks' evidence that he had formulated none of the advice recorded in his note of 24 July 1997. That evidence was adduced in response to a leading question some twenty years later (transcript p 1553 lines 29-40). I reject his present recall as inconsistent with the tenor of his contemporaneous note. I do not doubt that what he advised Mr Jeff Alexander would have been influenced by his discussions with Mr Porter, but I reject that when he spoke to Mr Alexander Mr Wicks had held himself out as merely conveying the views of counsel. 371 Mr Wicks wrote to the AGS later on 24 July 1997 in the following terms (Ex A1 p 2116): I refer to my facsimile to your client yesterday and yours in reply. I understand the Department intends to start moving residents from the home at 1:00 p.m. today. I repeat the warning to the Department in my facsimile yesterday and ask that the Department undertakes to hold off any relocation of residents pending the full consideration by senior counsel of the background to this matter and any review and appeal rights that may be open to our client and, if appropriate, the exercise of any of those rights. I make the point that our client's licence is still in force and the Department's action in moving patients from the home may constitute an interference with the contractual relationship between my client and its residents with any consents to relocation, by either the residents or their representatives influenced by the Department's reviewable and appealable decision that the home does not meet the prescribed standards. Your reply as a matter of urgency would be appreciated. He received a reply from Mr Bowen of the AGS by facsimile (unnumbered in Ex R1-3 X6) dated the same day as follows: I am instructed that the resident moving today is being moved by her daughter who is going to Queensland, travelling in part on the ferry this evening. The Department of Health and Family Services is not arranging this move and can take no action to prevent it. I am also advised that there are a number of residents in a similar position where the family is arranging the move. In relation to the consent to which you referred, this was a consent to release medical details and particulars held by the Department to the new home. It was not a consent to move the person.

[47]

9.8 Jadwan tells Mr Wicks it accepts Derwent Court's closure - sale of bed licences given priority 372 Whatever weight Mr Alexander gave to Mr Wicks' reservations regarding the logic of seeking an injunction and at the same time dismissing the staff, he was not dissuaded from moving rapidly to take advantage of the Commonwealth's offer to meet the cost of staff redundancies. Mr Alexander gave notice to all of Derwent Court's staff on 24 July 1997 (Ex A1 p 2119). 373 Mr Wicks made a file note (Ex A1 p 4146) (by necessary inference on 25 July 1997) recording that at 9.12 am he had received a phone call from Mr Jeff Alexander to inform him that Mr Alexander had given notice to Derwent Court's staff "yesterday". He recorded (highlighted with an asterisk): "You want to save the beds - what can be done?" Mr Wicks' file note also includes a reference to his having been told by Mr Alexander that 20 residents had agreed to go to St Johns Park (another nursing home) and two were going home, but that Mr Alexander did not yet know where the rest would be going. 374 Mr Wicks' file note of that conversation then records Mr Alexander ("you") stating "you accept that patients have to be cared for so closure has to be accepted". Mr Wicks also made a note: "2 weeks [sic] to find a buyer! - unrealistic." Given the surrounding circumstances, I find that Mr Wicks was referring to the two days (48 hours) that Jadwan had been given by the Department to sell its bed licences. I am satisfied that I should infer that to be information conveyed to Mr Wicks by Mr Alexander. 375 Later that morning Mr Wicks began to give further attention to the problems facing Jadwan. He made a note to himself regarding the relevant legal considerations. It commenced as follows (Ex A1 p 4148): Seek review/appeal with a view to the home regaining approval - absent residents (is this possible) -doesn't matter tho if no residents cos there's no staff - both situations brought about directly or indirectly by Dept's actions -but if we get approval back - attached to the empty home, the beds could be sold - demand here? Demand interstate? (is this possible?). abandon trying to keep residents and keeping home open - protect the goodwill. 376 Mr Wicks' research concerned the provisions of reg 12 of the National Health Regulations. Regulation 12 addressed how a Standards Review Panel under the National Health Act was required to be constituted. I infer Mr Wicks was considering whether the SRP-2, on whose advice the Minister had decided to revoke Derwent Court's approval as a nursing home, had been validly constituted. 377 However such research as he was undertaking on 25 July 1997 was interrupted at 12.35 pm when he received a phone call from Ms Julie Alexander. Mr Jeff Alexander also participated on speaker phone. Mr Wicks made both a handwritten and a typed file note of their conversation. 378 Mr Wicks' handwritten note records that he was told that arrangements had been made for St Johns Park and Southern Cross Homes to accept Derwent Court's residents (Ex A1 p 4151). Two statements that counsel for Jadwan place great significance upon appear in that file note: "injunction out of the question" and "discussed damages". 379 Consistently with his practice regarding more significant discussions Mr Wicks also made a typed file note (Ex A1 pp 4152-4153): Julie Alexander rang and I spoke to her at length about this matter and she then handed me to Jeff and he discussed it further with me as well. I confirmed with Julie all the matters that we had discussed with Jeff yesterday regarding injunction proceedings saying that David Porter said that injunction proceedings could not be guaranteed to be successful and that they would be "risky". I said that what they needed to bear in mind is that in such proceedings the Commonwealth would, I expect, push the issue of fire safety and ultimately, Jeff Alexander may find himself in a position where the Judge said to him or asked him if he could guarantee that there would not be a fire in the home that particular night. Jeff's answer to this would have to be no and the Judge would be likely to take the view that the only matters really to be balanced are the resident's inconvenience and upset at being removed as opposed to their safety if they remain in the home for even one (1) night or one (1) night longer. It would be hardly relevant in the circumstances to argue that there has not been a fire to date and hence it's not reasonable to expect that one would occur. They confirmed that the staff had all now been given notice and that arrangements were presently under way for the Rosary Gardens Nursing Home to be upgraded in a rush job to take the 20 or so residents who have decided that they want to move to Rosary Gardens. Apparently, the Union has pressured Rosary Gardens to take any requirements of extra staff occasioned by the Derwent Court residents moving out there from amongst the Derwent Court staff. Jeff then discussed the matter of pursuing Derwent Court retaining its beds to be able to sell them elsewhere on the market. I said I was still not totally familiar with how the beds were constituted and I was going to have to have a look at the regulations to "get a handle" on the nature of the asset that the beds represent. I said in any event, it's perhaps academic to pursue that line of enquiry too far because if we can establish that the Minister's revocation decision was improperly made then the question of damages flowing from that could be pursued and that this matter would most likely proceed on that basis… 380 I am satisfied that the discussion set out in the second paragraph of Mr Wicks' file note explains what prompted Mr Alexander to give Mr Wicks instructions that an injunction was out of the question. They are words of command not advice. I reject as implausible Mr Pearce's submission that Mr Wicks spoke those words. 381 Ms Julie Alexander gave evidence of her recall of that conversation during examination-in-chief by Mr Pearce. Broadly it was consistent with what appears in Mr Wicks' notes but importantly she testified that two additional matters were discussed: [MR PEARCE:] Right. Now, do you remember a conversation you had with Mr Wicks about three days later on about 25 July in which there was a discussion about an injunction?---Yes. Do you remember what Mr Wicks told you in that conversation?---Yes. He was saying that it was too risky to take out an injunction because we couldn't guarantee a judge that there wouldn't be a fire at Derwent Court that night. And he also said that if we take out an injunction, we - Jadwan wouldn't receive Commonwealth funding. Funding would stop and we would have to fund the operation of the nursing home ourselves and it would take approximately a year to ... for the proceedings to be heard. So we would have to fund Derwent Court for a whole year out of our own funds and the risk was that if we lost, we would have to bear those - bear the full cost of operating Derwent Court. Was there any discussion in that conversation about letting the residents leave?---Yes. Mr Wicks told me there was no harm in letting the residents leave. (transcript p 547 lines 9-25) 382 With some hesitation given the long passage of time, I accept Ms Alexander's evidence that Mr Wicks did tell Mr Alexander and Ms Alexander during that telephone call that there was no harm in letting the residents go. While I have found that Mr Wicks was an assiduous note-taker I do not accept that I must reject Ms Alexander's evidence because Mr Wicks made no explicit mention in his notes of having given such advice at the time. Ms Alexander's account was unshaken in cross-examination (transcript p 620 line 21 - p 623 line 41). 383 There is some indication in Mr Wicks' notes that such an issue could well have been discussed. Mr Wicks' handwritten file note includes a sentence: "dealings with the dept should only be to arrange move - do not discuss the decision or its background with the Department". 384 Mr Wicks having cautioned Jadwan to that effect, it would have been entirely unexceptional (even surprising had she not) for Ms Alexander to have asked Mr Wicks whether dealing with the Department to arrange for Derwent Court's residents to move out would harm Jadwan's interests. I am satisfied that Mr Wicks would have provided her with the assurance that she gave evidence of recalling in these proceedings. That was Mr Wicks' thinking at the time and it remained so until well into the future. As his note reveals, Mr Wicks anticipated that if Jadwan could establish that the Minister's revocation decision was improperly made then the question of damages flowing from that could be pursued. Mr Wicks cannot be expected to have recorded every specific of that long discussion. 385 On the other hand I reject that the Court can rely on Ms Alexander's evidence that Mr Wicks told her that if Jadwan took out an injunction the Commonwealth funding would stop. There is no corroboration, contextual or otherwise, to support such a finding, and there is nothing to suggest Mr Wicks ever held or expressed such a view. Assuming in Ms Alexander's favour that her recall has some foundation in fact, I am satisfied that her recall of the context and detail is inaccurate. If Mr Wicks did mention Commonwealth funding, having regard to what his notes reveal as to his thinking, I am satisfied he was referring to the operation of the earlier sanctions decision continuing to prevent Jadwan admitting new residents with that funding attached. 386 Mr Wicks left that discussion with the Alexanders on the basis that he would provide advice to Jadwan about the nature of the assets Derwent Court's bed licences represented. His notes reveal that he told them that the question of whether Derwent Court's bed licences could be sold might become academic if Jadwan could establish that the revocation decision had been improperly made because Jadwan could then pursue a claim for damages.

[48]

9.9 Mr Wicks tells Mr Porter that Jadwan accepts Derwent Court's closure - Jadwan engages a Melbourne solicitor without informing Mr Wicks 387 On 28 July 1997 Mr Wicks called Mr Porter to advise "we are accepting of closure - clients do/did not want to pursue injunction against the Dept". His file note includes the annotation: "action for damages for losing beds?" (Ex A1 p 4158). That is followed by Mr Wicks noting some questions (I infer asked by Mr Porter) and his responses which suggest that Mr Porter may have doubted the soundness of that strategy. 388 Perhaps concerned for that reason Mr Wicks returned to researching whether the SRP-2 (described in his file note as the "second panel") had been validly constituted (Ex A1 pp 4154-4157). Mr Wicks' notes suggest he was focussing upon whether such a panel could be validly constituted just by a chair and two members and also whether Ms Parr, Ms Cooper and Ms Guy each had had the qualifications required for their respective appointments. He made a note asking, "[h]ow do we ask for all this information?" followed by the acronym "FOI" which he highlighted by circling. 389 The following day (29 July 1997) Mr Wicks called Mr Porter again to "explain how we won't be pursuing injunction … we have accepted closure and are working towards easing the transition - acceptance doesn't mean we accept the decision - we'll seek review with a view to claiming damages for cost of beds". 390 I infer Mr Wicks made that call in consequence of the hesitations Mr Porter had expressed. There would otherwise have been no reason for Mr Wicks to have both repeated and explained his instructions. I find that Mr Porter accepted that Jadwan no longer wanted him to proceed with drafting an application for an injunction. 391 Mr Porter agreed Jadwan should make an FOI request. Mr Wicks' file note concludes "you'll get Act back to me". I understand that to mean that when they had met Mr Wicks had given Mr Porter his copy of the National Health Act, and that Mr Porter had agreed to return it (Ex A1 p 4159). 392 However without informing Mr Wicks, Mr Jeff Alexander had taken steps to obtain a second opinion. 393 It is unclear on the evidence exactly when those steps were initiated but on 28 July 1997, Mr Alexander had sent a long letter by express post to be passed to Mr Hogan of Coltmans, Price, Brent Solicitors in Melbourne enclosing a parcel of relevant documents (Ex A1 pp 2129-2132). 394 Mr Alexander's letter summarised, from Jadwan's perspective, the history of events relating to Derwent Court since 1996. Mr Hogan was instructed, inter alia, that Derwent Court's residents had been progressively removed to Southern Cross Homes "since Thursday last week" and that "our staff have been given notice and redundancy provisions are being negotiated. Southern Cross Homes are employing our staff". Under the heading "CONCLUSION", Mr Alexander wrote: With our residents' and staffs' [sic] future now set we are looking to save the bed licenses. As stated previously our genuine intentions were two-fold: 1. Immediately update fire safety and care standards. 2. Rebuild an accredited first class aged care facility. We believe we have completed 1. It seems we have been denied the chance to complete 2. We now seek natural justice by being given the opportunity to sell the bed license [sic] without pressure and in an orderly manner. The following are points of contact: … [contact details] … We very much hope you are able to save the situation. 395 On 29 July 1997 Mrs Joan Alexander met with Mr Hogan in Melbourne. Her diary note indicates that Mr Hogan had held out little hope. He told Mrs Alexander that Jadwan's best chance was to go to the courts. He recommended an injunction. Mrs Alexander had recorded that "there was a reason for not having one and JGA [Mr Jeff Alexander] knew it. I couldn't think" (Ex A1 p 3796). 396 Mrs Joan Alexander's diary entries entitle the Court to infer that following that conversation Mr Hogan phoned Mr Jeff Alexander and Ms Julie Alexander. They had discussed a proposal involving "35 residents downstairs. An injunction" (Ex A1 p 3799). However, by then Derwent Court was no longer caring for even 35 residents. 397 While those events were transpiring, Mr Alexander had phoned Mr Wicks to tell him that 18 of Derwent Court's residents had left over the weekend and that only 15 remained. Mr Alexander did not mention anything about Mr Hogan. Mr Wicks told Mr Alexander he was considering how to follow up Jadwan's FOI request and its application for review and would keep him posted (Ex R1-3 X6). 398 Mr Wicks first learnt of Mr Hogan's involvement on 30 July 1997. 399 In cross-examination Mr Wicks denied that he had felt slighted by Jadwan seeking Mr Hogan's advice. I do not accept that to have been his mind at the time. The tenor of Mr Wicks' typed file note set out below entitles the Court to conclude that Mr Wicks was disconcerted that his advice had been questioned (Ex A1 p 4175): Wednesday, 30 July, 1997 Jeff Alexander rang this morning to say that in the course of speaking with an operator of an aged home in Melbourne about selling his beds, the operator gave him the name of his lawyer by the name of John Hogan with a firm Coltmans Price Brent of 500 Bourke Street, Melbourne who apparently, has had experience in this area before. Jeff apparently spoke with John Hogan and sent him some background information to this matter and apparently Hogan's advice to him was that we should be proceeding as a matter of urgency with an injunction application to prevent the revocation of approvals and the loss of beds. I explained to Jeff that we had already been down the path of an injunction proceedings before and that I had sought David Porter's advice and that advice was that injunction proceedings would be risky and no guarantee could be given of success. I pointed out to Jeff that he was going to consider with "the family" whether they wanted to pursue an injunction proceedings [sic] and his ultimate advice was to me that they did not and that they accepted that the residents were going to be relocated but nevertheless wanted me to pursue the matter of protecting "the beds". Some of the advice that John Hogan appeared to give him seemed to be very much off the cuff and I said I would telephone Hogan to see if there was anything further and relevant that he could add to my thoughts on this matter. However, I did make the point that Hogan was not obviously in possession of all the facts of the case and that both I and David Porter had better knowledge of what has transpired, what Jadwan wants and the risks involved with injunction proceedings. I pointed out to Jeff that it is quite possible for us to press ahead with injunction proceedings if he wishes, but he needs to take the risk of the proceedings not being successful and bearing the cost of the same. Again he made no comment to the effect that he is prepared to bear those costs. I said I would speak with John Hogan and report back to him. …

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9.10 Mr Wicks acts on Mr Hogan's view that an injunction should be sought 400 Mr Wicks phoned Mr Hogan on the morning of 30 July 1997. His file note (Ex A1 pp 4161-4162) reveals they spoke for about 30 minutes. It records Mr Hogan telling Mr Wicks that to gain time to sell its bed licences Jadwan would "need to back Dept. against the wall". 401 On the top of the second page of his file note, Mr Wicks records: "proceed with injunctive relief to retain licences". That note is followed by a reference to Mr Wicks remaining solicitor on the record for Jadwan and Mr Hogan accepting the role of consultant. I am satisfied that it was Mr Wicks who suggested that proposal. 402 That having been agreed, Mr Hogan faxed Mr Wicks a copy of the letter he had intended to send to the Department on Jadwan's behalf (Ex R1-3 X6 marked 3296-2397). Mr Hogan's letter requested the Department to contemplate, "as a matter of urgency", the non-revocation of Derwent Court's approval as a nursing home to allow Jadwan to "sell for relocation the 51 bed licenses pertaining to the home". I infer Mr Wicks raised no objections. Mr Hogan sent that letter by facsimile to the Department later that day (Ex A1 p 2372). 403 Mr Hogan's letter was in the following terms: We confirm that we have been consulted by Jadwan Pty Ltd the proprietor of Derwent Court Nursing Home relating to the notice of intent to revoke the approval of the nursing home under paragraph 44(2)(b) of the National Health Act 1953. We note that pursuant to the notification dated the 20th July 1997 the Minister intends to revoke the nursing home's approval under s.44(2) of the Act 14 days after the date of the notice. Accordingly and with an emphasis on the short time frame within which we are working we ask that you advise as a matter of urgency whether the Department will contemplate the non-revocation of the approval of the nursing home so as to allow our client the ability to sell for relocation the 51 bed licences pertaining to the home. We would anticipate that the home would not function pending the sale of the bed licences with all residents relocated and with the staff of the home having been given notice upon the basis that their entitlements inclusive of redundancy payments will be met by the Commonwealth. We await your earliest advices. 404 Later the same day (30 July 1997) Mr Wicks spoke with Mr Dellar (Ex A1 p 4165). I find that Mr Wicks told Mr Dellar in that conversation that Jadwan was going to seek an injunction. His file note records Mr Dellar stating "never yet has anyone succeeded in an appeal". Their discussion then turned to Jadwan's request that it be permitted to sell its bed licences. Mr Dellar gave no commitments but observed "planning considerations could allow a N. Tas reallocation". A specific aspect of what Mr Dellar said in response to Mr Wicks is discussed at [215] to [219] above where I give reasons for rejecting Jadwan's submissions that Mr Dellar then told Mr Wicks that the Aged Care Act would come into force on 1 October 1997. 405 Mr Wicks then rang Mr Jeff Alexander. Mr Alexander told Mr Wicks that he had received further expressions of interest from other nursing homes (Vaucluse and Queen Victoria) for Derwent Court's bed licences (Ex A1 p 4166). Mr Wicks made a file note: You [Mr Alexander] would be happy to u'take to take no more residents - just so you could sell the beds. 406 Late in the afternoon of 30 July 1997 Mr Wicks phoned Mr Porter (Ex A1 p 4166). 407 Mr Wicks told Mr Porter that Jadwan's instructions had changed (following Mr Hogan's intervention). Jadwan wanted him to initiate an appeal pursuant to the ADJR Act and to apply for a stay of the revocation decision. 408 However, by then only eight of Derwent Court's nursing home residents remained (Ex A1 p 4166). 409 The next day (31 July 1997) Mr Wicks asked Mr Porter to draft grounds of review "in anticipation of revocation" (Ex A1 p 4167). Mr Porter agreed to do that. 410 Mr Wicks then spoke to Mr Hogan. Mr Wicks "explained Mr Porter's tactic" to Mr Hogan. I infer from his use of the word "tactic" that Mr Wicks had told Mr Porter about Mr Hogan's rationale for seeking an injunction: its purpose was to put pressure on the Department to cause it to give Jadwan a further opportunity to sell its bed licences. He was now explaining to Mr Hogan how Mr Porter was intending to implement that strategy. 411 He told Mr Hogan that Mr Porter was drafting an appeal and grounds. They were "awaiting decision to revoke". 412 In the afternoon Ms Julie Alexander called on Mr Wicks to pass on news and to ask "for developments". The news she passed on was that Jadwan had received a further expression of interest (from Mary's Grange) for Derwent Court's bed licences. Mr Wicks told Ms Julie Alexander as follows: I explain ADJR procedure - I'll write again to Dellar tomorrow to highlight interest - undertake to take no further residents and ask for revocation to be held off pending exploring expressions of interest. 413 Meanwhile Mr Jeff Alexander had written to Mr Wicks. His letter of 31 July 1997 included the following: It is simply not possible to find a buyer NOW for the sale of such a complex business. We ask for a specified time to negotiate a sale in an orderly manner. We will immediately place the transaction in the hands of a business broker and ask him to act as expeditiously as possible. We would provide a time frame to support our actions. Before any of this can happen, two assurances are required: 1. Ms Jane Halton removes or extends the Intention Revocation. Our good faith has been displayed over the last 10 days that residents and staff have been relocated with the essential co-operation of Derwent Court management. This achievement resolves the Department's immediate concerns for requiring revocation. If the revocation is removed or extended we would undertake not to admit residents during this period. 2. Mr Steven Dellar permits a sale to occur. The chance of selling the beds in the north of the state is a new twist from what we had been told by Mr Dellar previously. Last Tuesday week he advised we had no more than 48 hours to find a buyer, but he doubted our ability to do so. Since previous discussions have required building south of Oatlands, we assumed the sale of beds in the south would also be our only option. 414 On 1 August 1997 Mr Wicks wrote in the following terms to Mr Dellar (Ex A1 pp 2411-2412): DERWENT COURT NURSING HOME I refer to recent correspondence and conversations regarding this matter. I refer also to the letter of 30th July, 1997 to Ms Lisa Paul of your Department from the Melbourne law firm Coltmans Price Brent who have been engaged by my client as consultants in this matter. I repeat the request in that letter that the Minister's delegate gives urgent and close consideration to not revoking of the approval of the Derwent Court Nursing Horne until such time as my client can negotiate the sale for relocation of the Home's bed approvals. I have already expressed my concerns at the way in which the Department had pre-empted any review of the revocation decision by putting in train the relocation of residents of the Home. My client's ultimate decision to take no action to prevent the relocation was taken purely in the interests of the Home's residents, many of whom were quite upset at the prospect of relocation. Its action in not challenging and in fact assisting the relocation can in no way be construed as an acceptance that there is a proper basis for the relocation of the residents or the revocation of the Home's approval. The inconsistencies between the reports of both the Standards Monitoring Team and the Standard Review Panel, the glaring inconsistencies between the first and second Standards Monitoring Team reports, the questions surrounding the qualifications and experience of Standards Review Panel members, the apparent improper composition of the second Standards Review Panel and the open and public support given by a number of doctors familiar with the Home to the standard of care given there, all raise serious doubts about the basis upon which the Minister's delegate is proceeding in this matter. It would appear that the Department is further attempting to pre-empt any appeal against or review of a revocation decision by allocating 51 'new' beds to Southern Cross Homes and thereby creating a position where the total number of beds allocated at least in the south of the State, will exceed the allowable "ceiling" unless the 51 approved Derwent Court Beds are withdrawn. Up until receiving notice of the Minister's delegate's intention to revoke the Home's approval, my client had been making every endeavour to comply with the Department's required standards and, given the obvious problems with the lay-out of the Home was in the meantime, genuinely pursuing the matter of relocation and rebuilding. My client's intentions in this regard were quite incredibly rejected by the Standards Review Panel as not genuine. You would be no doubt aware of the financial loss my client will suffer if the approvals are revoked. You would no doubt also be aware of the Department's liability if, as we shall seek to prove, the revocation decision was improperly founded. With the publicity surrounding the Homes' [sic] closure my client has received a number of expressions of interest from home operators in the State for Derwent Court's beds. I have copies of written expressions of interest from a number of operators and Mr Alexander is even today dealing with others. It would greatly assist in the resolution of this matter without recourse to legal processes and perhaps with benefits to aged care nursing generally in the State if my client was allowed to negotiate the sale of its beds to other operators. I ask that you immediately convey this letter to the Minister's delegate for her urgent consideration and response. 415 Ms Jenny Hefford, Director, Quality Assurance Development of the Department of Health and Family Services replied to Mr Wicks the same day. She advised (Ex A1 p 2417): Your letter raises a proposal put by Messrs Coltman Price Brent on 30 July 1997. I note your advice that both firms are acting for the proprietor in this matter. A copy of my reply to Coltmans is attached for your information. I will ensure that your letter is put before the delegate as part of her consideration on whether to proceed with revocation of the approval of the nursing home. 416 The copy of Ms Hefford's letter to Coltmans Price Brent (Mr Hogan) which she attached for Mr Wicks' information included the following paragraphs (Ex A1 pp 2413-2414): You ask whether the intention to revoke might not be proceeded with so as to permit the proprietor "the ability to sell for relocation the 51 bed licences pertaining to the home". There are in fact no "bed licences" under the Act. The approval of a nursing home under section 40AA of the Act is subject to a condition that the number of beds available in the nursing home for benefit purposes will not exceed the number determined by the Minister. Under section 39B of the Act, the Minister may in her discretion grant a certificate of approval in principle for what is effectively the transfer of determined bed numbers between nursing homes. Your client should be aware, however, that the granting of such a certificate is subject to a specification that the nursing home from which beds are to be transferred continues to be conducted in accordance with the conditions to which it is subject under subsection 40AA(6). It is the failure to comply with such a condition that has precipitated the present action in respect of Derwent Court Nursing Home. Whilst the matter is one for the delegate to consider at the relevant time, I have to say that it appears most unlikely that the desire of your client as indicated in your letter would have any material bearing on a decision to revoke the approval of the nursing home. 417 Jadwan continued to receive further expressions of interest for the purchase of some or all of Derwent Court's 51 bed licences including from Adaihi Nursing Home (31 July 1997, Ex A1 p 2408), Karingal Home for the Aged (1 August 1997, Ex A1 p 2420), Masonic Peace Haven of Northern Tasmania (1 August 1997, Ex A1 p 2421) and St Luke's (Anglican Church in Australia) Foundation (4 August 1997, Ex A1 pp 2423-2424). 418 Over the next few days, Mr Wicks and Mr Porter continued with preparations for an application for review pursuant to the ADJR Act to be initiated if the revocation decision was confirmed. 419 Meanwhile more residents of Derwent Court were leaving. 420 Mr Porter sent Mr Wicks a first draft of the orders to be sought on 1 August 1997 (Ex A1 p 4608). On 4 August 1997 Mr Wicks sent Mr Porter a facsimile containing his comments on a revised draft for an Application for an Order of Review and its supporting affidavit (Ex R1-3 X6 p 4607). 421 The last resident remaining at Derwent Court left on 4 August 1997 (Ex A1 p 2651). 422 Mr Wicks participated in a conference with Mr Porter on 5 August 1997 (Ex A1 p 4181) in which the constitution of the SRP-1 was discussed. However it was raised only by way of background to a draft affidavit being prepared for Ms Julie Alexander to adopt. There is nothing in evidence to suggest that what Mr Wicks in his discussion with Mr Hogan had referred to as Mr Porter's "tactic" extended to Jadwan seeking leave out of time to commence proceedings in respect of the invalidity of the earlier sanctions decision. 423 In so far as the sanctions decision was referred to in the draft Application for an Order of Review then under discussion it was only as a particular of why the making of the revocation decision was to be contended to be an improper exercise of power. 424 Mr Wicks conducted further legal research. On 5 August 1997 Mr Wicks made five pages of notes relating to the provisions of the National Health Act which governed requirements for approval of the transfer of bed licences (Ex A1 pp 4185-4189). Again Mr Wicks' research failed to identify that the Aged Care Act had become law on 7 July 1997. Nor did he become aware of the existence of the Consequential Provisions Act. 425 Mr Wicks spoke to Mr Hogan for a final time on 5 August 1997. His note of their conversation is at Ex A1 p 4184. It records Mr Hogan informing Mr Wicks about the reply he had received from Canberra (I infer to his letter of 30 July 1997). Mr Wicks had responded that he was aware of that information. 426 Mr Wicks' file note then contains the words "going straight to the AAT - I discuss". Those words are followed by a reference to "s. 105AAB". In context I am satisfied Mr Wicks' note is to be understood as referring to a section of the National Health Act. Section 105AAB of the National Health Act as then in force provided that merits review in the Administrative Appeals Tribunal was available in respect of a revocation decision but only after a request for reconsideration had first been made to and refused by the Minister. The reference to s 105AAB is followed by the words "yes, you see". I am satisfied that that represents Mr Wicks having told Mr Hogan (and Mr Hogan agreeing) that the option of going straight to the AAT (where a stay might be sought) would involve considerable delay. For that reason it was not a practical alternative to seeking an injunction as a means of putting pressure on the Department. 427 Mr Wicks' file note concludes with the words "you're out of it - good luck!" I infer that Mr Wicks thereby terminated Mr Hogan's retainer as a consultant, albeit on the most polite of terms. 428 I am satisfied that nothing Mr Wicks told Mr Hogan as recorded in that file note would have suggested to Mr Hogan that Jadwan was not still intending to apply for an injunction immediately upon the revocation of Derwent Court's approval as a nursing home.

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9.11 Derwent Court's approval as a nursing home is revoked 429 On 6 August 1997 a delegate of the Minister, Ms Jane Halton, First Assistant Secretary, Aged and Community Care Division of the Department signed a letter addressed to the Directors of Jadwan (Ex A1 pp 2453-2454) notifying them of "the revocation of approval of Derwent Court Nursing Home under subsection 44(2) of the National Health Act". Ms Halton's letter was accompanied by a copy of her Instrument of Revocation (Ex A1 p 2455) and her Statement of Reasons. The latter referred to and annexed the reports of SRP-1, the Standards Monitoring Team (12, 13 and 17 March 1997) and SRP-2 (Ex A1 pp 2456-2561). Ms Halton's Statement of Reasons revealed she had relied on and had accepted those reports' findings as the basis of her decision. 430 Jadwan was waiting on that outcome. Its directors were perplexed when they had heard nothing by the afternoon of the next day. A file note made by Mr Wicks at 4.12 pm on 7 August 1997 (Ex R1-5 X6 marked 4193) records him receiving a telephone call from Ms Julie Alexander "still no word - very political now". Mr Wicks' note refers to Ms Alexander telling him that Ms Sue Mackay's (I infer Senator Sue Mackay's) office had "spoken today" to Derwent Court's acting Director of Nursing. I note that other evidence before the Court can be accepted to demonstrate that the events surrounding Derwent Court by that time had become a matter of wider attention. On 25 July 1997 a number of doctors had expressed concerns about the pending closure of Derwent Court in the local press (Ex R1-5 X1 p 3782). Health industry unions were supporting Derwent Court (Ex A1 p 2130). 431 However, if that short delay had given Jadwan hope that such political intervention had resulted in a last minute reprieve, those hopes were dashed. At 5.00 pm on 7 August 1997 Ms Julie Alexander called Mr Wicks back to inform him that Jadwan had received a notice revoking Derwent Court's approval as a nursing home (Ex R1-5 X6 marked 4194). She would fax him a copy. Mr Wicks called Mr Porter at 5.10 pm that evening to inform him but Mr Porter had already left chambers. 432 On the morning of Friday 8 August 1997 Mr Wicks rang Mr Porter to advise him of developments (Ex A1 p 4196). Mr Porter told him he was in court and would look over the draft affidavit and application later in the day " - more Monday". Mr Porter asked Mr Wicks to check "judge availability". 433 Mr Wicks had then made a telephone call to Mr Alan Parrott in the Hobart registry of the Federal Court of Australia. Mr Parrott called him back later that day (Ex A1 p 4197). Mr Parrott told Mr Wicks that no judge would be available "unless urgent - slim chance may be a judge down o'wise 22/9". The note also made reference to "video link". There is nothing on file to confirm the fact but I infer Mr Wicks would have conveyed the import of that information to Mr Porter. 434 At 3.32 pm on Monday 11 August 1997 Mr Wicks faxed Mr Porter a "revised (final?) draft" of a supporting affidavit proposed to be sworn by Ms Julie Alexander on Jadwan's behalf in those intended proceedings (Ex A1 pp 4584-4592). 435 Later the same day Mr Wicks got a call back from Mr Porter. Mr Porter told him (Ex A1 pp 4199-4200) that the application was "ok" but suggested some minor amendments. He suggested adding an additional paragraph 11 to the draft affidavit. 436 Mr Wicks then recorded Mr Porter advising as follows: BUT - you see no need on the face of the affidavit for an interlocutory stay! - If AAT is successful decision will be quashed ab initio and approvals will continue to exist - [symbol for therefore] don't proceed with appn - yes - affidavit material will be used in AAT anyway so exercise not wasted - pursue review per Minister immediately then we go to AAT. 437 Whether Mr Wicks' understanding of Mr Porter's advice was an accurate reflection of what Mr Porter had said to him is open to question. A letter sent by Mr Porter to Mr Wicks dated 19 August 1997 enclosing his memorandum of fees (Ex R1-3 X6) suggests otherwise. I address that specific question later in these reasons. 438 However whether Mr Wicks had correctly understood and had correctly recorded what Mr Porter advised is presently not to the point. I find that Mr Wicks understood Mr Porter to have given advice in those terms. Mr Wicks thereafter took no further steps to initiate Jadwan's foreshadowed ADJR Act proceedings. That position did not alter after Mr Wicks received Mr Porter's letter of 19 August 1997 although it ought to have alerted Mr Wicks to the possibility that he had misunderstood Mr Porter's advice. 439 On 12 August 1997, Mr Wicks rang Ms Julie Alexander who had been busy putting patient records into envelopes for storage "to advise Porter's position" (Ex A1 p 4204). Ms Alexander gave evidence in these proceedings, which I accept, that she had been shocked by that development. 440 Mr Wicks then rang Mr Alexander "to discuss at length" (Ex A1 p 4206). Mr Wicks' file note records Mr Alexander as telling Mr Wicks he was "surprised re not proceeding". 441 For the purposes of these reasons it is sufficient to note that although both Mr Jeff Alexander and Ms Julie Alexander were surprised that Mr Wicks had acted on that basis, Jadwan accepted, and did not further question, the decision not to proceed with seeking an injunction. There is no evidence to suggest that at any time prior to 12 September 1997 when Mr Wicks commenced his employment with the Third Respondent that Jadwan instructed Mr Wicks to revive those proceedings.

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9.12.2 Mr Wicks' initial retainer 448 I accept Mr Wicks' evidence that as at the time he commenced his employment with the Second Respondent on 2 July 1997 his instructions had not changed from those he had been subject to as an employee of the First Respondent. There is nothing to suggest that prior to Mr Wicks learning on 21 July 1997 that Jadwan had been given notice of Ms Halton's intention to revoke Derwent Court's approval that position had altered. 449 However it would have been prudent for Mr Wicks to have anticipated that his client might soon require more of him. 450 Mr Wicks was well aware that Jadwan's commitments with respect to fire safety issues at Derwent Court still remained substantially unmet. Mr Wicks' file contained letters to Jadwan such as Ms Lisa Paul, Assistant Secretary, Residential Care Management Branch had written on 11 May 1997 (Ex A1 pp 1708-1709): Fire Safety ….It concerns me that your letter does not mention progress you have made on providing a second form of egress for residents and staff on the first floor in the event of a fire on the ground floor. This means that there is still a serious fire safety risk to those residents and staff as I am advised that the central stairwell would act as a chimney funnelling flames and smoke upwards during a fire. Before this matter is considered further, could you please provide a detailed framework setting out the steps you will take to install a second egress within 14 days of the date on which you receive this letter. 451 On his first morning at work Mr Alexander had called him to pass on the bad news he had received from the TFS. 452 However, if Mr Wicks did entertain the thought that Derwent Court's approval as a nursing home might re-emerge as a live issue there is nothing recorded in his notes to suggest he took steps to prepare for that eventuality. He did not refresh his legal research. He did not prepare a draft brief to counsel in anticipation that such a course might become necessary. The bundle of documents Mr Porter later returned bore no resemblance to a well prepared brief. 453 The risk Mr Wicks had been running that his instructions might expand to involve him having to undertake professional legal tasks for which he had at best limited competence materialised shortly thereafter.

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9.12.4 A solicitor exercising skill and care in Mr Wicks' position would have identified the existence and relevance of the new legislation 457 The Court has accepted that Mr Wicks did not identify the existence of the Aged Care Act and the Consequential Provisions Act until after he had left the employ of the Second Respondent. 458 Mr Pearce submits that a legal practitioner exercising reasonable skill and care on behalf of its client would have identified the existence and significance of both the Aged Care Act and the Consequential Provisions Act at some point soon after 7 July 1997 when those Acts received Royal Assent. 459 Mr Jackson submitted that the Court should resist finding that a competent solicitor in Mr Wicks' position would have identified the existence of the Aged Care Act and the Consequential Provisions Act, having regard to the circumstances in which Mr Wicks was practicing. Mr Jackson submitted that Mr Wicks was a solicitor employed by a small firm in Hobart. The firm had no library. Mr Wicks did not have a computer. In any event there was no evidence that online legal research tools such as the Australian Legal Information Institute (AustLII) were available in 1997. Mr Jackson accepted that Mr Wicks had had access to the Law Society of Tasmania's library, but submitted there was no evidence as to the extent and currency of that library's holdings. There was no evidence that a solicitor exercising care and skill in Mr Wicks' position could have accessed up to date Commonwealth statutes. 460 In reply, Mr Pearce submitted the Court should reject that there was a dispensation for Tasmanian solicitors from knowledge of Commonwealth statutes. He submitted: "Tasmanian solicitors are in the same boat as all solicitors throughout the Commonwealth" (transcript p 1809 lines 14-15). 461 The Court has only limited evidence about the Law Society of Tasmania's library as at the relevant time. Mr Wicks told the Court that the Law Society library was used by Tasmanian practitioners who did not have access to their own professional libraries. It had been serviced by a librarian or librarians. 462 Mr Pearce did not cross-examine Mr Wicks on the subject. There is thus no evidence as to the extent of the Law Society library's routinely accessible collection and holdings, or the assistance that may or may not have been available to lawyers undertaking research on request to its librarian. 463 It would be surprising if the Law Society of Tasmania's library had not subscribed to a service such as the Australian Legal Monthly Digest or Australian Current Law. Some such services had provided regular hard-copy updates of cases and legislation (including bills before the Commonwealth Parliament). However Mr Pearce did not put to Mr Wicks that such had been available to him and Jadwan called no evidence to support that conclusion. In the absence of evidence that the library had a subscription to such a service I decline to find that such resources were available to Mr Wicks. 464 For that reason, in the specific factual circumstances of this case it is unnecessary to consider further whether a solicitor's duty of skill and care extends to require him or her to identify the existence of bills yet to become law. 465 However it is unquestionably within the scope of a solicitor's duty of skill and care that he or she identify, and advise having regard to the significance of, the relevant enacted statute law of the Commonwealth. 466 I accept Mr Jackson's submission that there is no direct evidence as to the extent of the Law Society of Tasmania's library's holdings. However the statute law of the Commonwealth is the most basic of the materials any Australian law library would hold. There is nothing before the Court to cause it to doubt the propriety of it drawing the inference that a law library operating on a professional basis for the benefit of legal practitioners (as Mr Wicks gave evidence was the case in respect of the library maintained by the Law Society of Tasmania) would at all relevant times have subscribed to, and would have maintained, a comprehensive and up to date collection of both State and Commonwealth statutes. I note that s 143 of the Evidence Act obviates the requirement of proof about the provisions of and the coming into force of a Commonwealth Act. 467 I draw the inference open to the Court in such circumstances. I find that the Acts of the Commonwealth Parliament would have been available for Mr Wicks to access by means of the Law Society's library at all relevant times. 468 The Aged Care Act had received Royal Assent on 7 July 1997. On that date it became an Act of the Commonwealth Parliament. 469 Mr Wicks learnt of Ms Halton's notice of intention to cancel Derwent Court's approval as a nursing home on 21 July 1997. I am satisfied that even if there may have been some short delay before print versions of the Aged Care Act were posted to and received by subscribers that the Law Society of Tasmania's library would have had a copy of that Act and the Consequential Provisions Act available in its collections on or before 21 July 1997. 470 However, the legislation Mr Wicks might have discovered after 21 July 1997 but before 3 September 1997 would not have given him to know the date on which the Aged Care Act would come into force. Its commencement date of 1 October 1997 was not proclaimed until 3 September 1997.

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9.12.5.2 No grounds to challenge conduct for the purpose of decision 476 Section 6 of the ADJR Act provided a mechanism allowing a person aggrieved by the conduct of a person engaged in the making of a decision to apply for an order of review in respect of that conduct. 477 Paragraphs 55 and 56 of Jadwan's Second Further Amended Statement of Claim are premised on Mr Wicks having breached his duty to Jadwan by failing to advise it that it should commence such a proceeding. 478 However I am doubtful whether Jadwan had a sound basis to assert that Ms Halton had engaged, was engaging, or was proposing to engage in conduct which would have sounded in relief under that provision. 479 However, assuming Jadwan would have been entitled to apply for review of Ms Halton's conduct on the basis that she was proposing to rely on either or both of SRP-1 and SRP-2 as being reports of a validly constituted Standards Review Panel in her foreshadowed revocation decision, I find that taking such action would not have prevented Ms Halton from making a decision to revoke Derwent Court's approval as a nursing home. 480 In the review proceedings Jadwan ultimately commenced it based its application on two grounds: see Jadwan No 1 [1998] FCA 715; (1998) 51 ALD 245 at 249. First, it claimed that the procedures that had been required by law to be observed in connection with the making of the decision to revoke approval had not been observed (ADJR Act s 5(1)(b)), in that the SRP-2 was not properly constituted and the Chairperson failed to give Jadwan the notice required under the National Health Regulations. Second, it claimed that the decision had involved an error of law (ADJR Act s 5(1)(f)) in relation to Ms Halton's interpretation and application of the then applicable standards determined under s 45D. 481 Only the first of those two grounds was pressed by Mr Pearce on behalf of Jadwan as relevant to Mr Wicks' alleged breach of duty in failing to advise Jadwan to seek prophylactic relief. 482 Prior to receiving a copy of Ms Halton's reasons, Jadwan may have had considerable difficulty in establishing that Ms Halton was proposing to rely on either or both of SRP-1 or SRP-2 as the reports of validly constituted Standard Review Panels in her foreshadowed revocation decision. 483 She was not subject to any requirement to do so. As the plurality in Jadwan No 4 explicitly stated at [45], Ms Halton did not need a report of a Standards Review Panel in order to validly make her revocation decision: …As the reasons of the Court show, it would have been perfectly proper for the Minister's delegate to take into account the views of the panel as the collective views of three people. It was only the decision-maker's ignorance as to the qualifications of a panel member that might have resulted in more weight being given to the views of the panel than would otherwise have been the case. 484 Even assuming that "engaging in conduct for the purpose of a decision" within the meaning of s 6 of the ADJR Act would have been given effect to by a judge of this Court in 1997 as extending to Ms Halton's anticipated intention to rely on particular evidence for a finding (an assumption I am unpersuaded of), Jadwan could not plausibly have achieved the outcome it was seeking by commencing judicial review proceedings pursuant to s 6 of the ADJR Act on that as yet unrealised premise. 485 On a true understanding of the relevant provisions of the National Health Act, the status of SRP-1 and SRP-2 as validly constituted Standards Review Panels was a side-wind. 486 Had Jadwan commenced proceedings pursuant to s 6 of the ADJR Act with the intention of pre-empting Ms Halton's decision, she could be expected to have sought and obtained advice from the AGS as to the implications of those proceedings for the revocation decision she was then giving consideration to. 487 Ms Halton would have been advised before finalising her decision that she did not need a report of a Standards Review Panel to revoke Derwent Court's approval as a nursing home. It would be open to her simply to accept the findings of SRP-1 as the collective views of five people and SRP-2 as the collective views of three people. She could give their opinions such weight as she saw fit. There was no need to confer on them the status of validly constituted Standards Review Panels. 488 Thus if Jadwan had commenced proceedings pursuant to s 6 of the ADJR Act in anticipation that Ms Halton intended, unless restrained, to rely on those reports as those of validly convened Standards Review Panels, Ms Halton could have simply conceded the point and nonetheless proceeded to make her decision having regard to what the authors of those reports had concluded, avoiding the error of attributing to them any formal status as validly convened Standards Review Panels. 489 Alternatively, Ms Halton could have based her decision on the damning report of the Standards Monitoring Team which had been headed by a senior interstate member that had visited Derwent Court on 12, 13 and 17 March 1997. 490 Thus, contrary to what Jadwan pleads at [56(iv)] of its Second Further Amended Statement of Claim, I reject the contention that such proceedings, had they been commenced, would or could have prevented Ms Halton making a revocation decision. 491 For that reason I am satisfied that even if Mr Wicks ought to have known (as Jadwan pleads at [55] of its Second Further Amended Statement of Claim) that Ms Halton was likely to rely on the reports of SRP-1 and SRP-2 when considering whether or not to revoke Derwent Court's approval as a nursing home, this Court is not entitled to conclude that Mr Wicks was in breach of his duty to Jadwan for failing to advise that there were grounds to restrain Ms Halton from making her decision. 492 In the above circumstances, it is not open to the Court to find that Mr Wicks was in breach of his duty by failing to advise Jadwan to commence proceedings pursuant to s 6 of the ADJR Act before Ms Halton made her decision to revoke Derwent Court's approval as a nursing home. All that would achieve would be to alert Ms Halton not to make the error that Jadwan relies upon her having later made.

[58]

9.12.6 Mr Wicks failed to exercise reasonable care and skill when he advised Jadwan that facilitating Derwent Court's residents to move out had no potential to harm Jadwan's interests 493 Mr Wicks gave advice to Jadwan on 25 July 1997 that there would be no harm in it facilitating Derwent Court's residents being relocated by the Department: see discussion above at [381] to [382]. 494 A legal practitioner exercising reasonable skill and care in Mr Wicks' position would have appreciated, notwithstanding that by that time he had been told by its directors that Jadwan had made a considered decision to "get out" and that he knew Jadwan had given notice to Derwent Court's staff, that the consequences of it cooperating with the Department in relocating Derwent Court's residents retained the potential to be a significant issue on 25 July 1997. 495 Jadwan still had interests it wanted to protect. 496 Mr Wicks was aware Jadwan still wanted to persuade the Department to allow it to sell its bed licences. 497 It is uncontentious that a solicitor's duty is "to exercise professional knowledge and skill in the lawful protection and advancement of the client's interests in the transaction in which the solicitor is retained": Hill per Brennan CJ at 167. That imposes an objective standard within the scope of his or her duties as retained: see Badenach. 498 By 25 July 1997 Mr Wicks' retainer had evolved such that it had become within the scope of his duty to provide the advice he gave. Mr Wicks cannot be excused of his duty by reason of his inexperience. 499 Mr Wicks had undertaken some further legal research since becoming aware of Ms Halton's intention to revoke Derwent Court's approval as a nursing home. A note made by Mr Wicks on 22 July 1997 is headed "Perusing NHA" followed by the words "National Health Act". 500 However when Mr Wicks recorded his file note regarding having perused the "NHA" on 22 July 1997 he had yet to brief Mr Porter. Mr Wicks met with Mr Porter in chambers on 24 July 1997. On 29 July 1997 (before Mr Hogan's intervention) Mr Wicks had asked Mr Porter to return his copy of the National Health Act. On the evidence available to the Court, Mr Wicks may well have simply "perused" his existing copy of the National Health Act without visiting the Law Society of Tasmania's library to check whether, since its publication, there had been any amendments or repeals. 501 Such speculation is of no consequence. I am satisfied, whatever the circumstances in which Mr Wicks updated his research, that a solicitor exercising the requisite degree of care and skill in advising his or her client would have checked whether the relevant statute law he or she had last given attention to some months ago remained current or had been amended. 502 The existence of the Aged Care Act was not a hidden trap discoverable only to those skilled in arcane legal scholarship; it was an enactment of the Commonwealth Parliament. On the date of its coming into effect it would repeal those provisions of the National Health Act which had hitherto regulated Derwent Court. On its face that content was relevant to the advice a solicitor exercising appropriate care and skill ought to provide Jadwan. The existence of that legislation, together with the Consequential Provisions Act, would have readily been identified by any solicitor had he or she recognised the necessity of checking the currency of the relevant statute law. 503 Having discovered that legislation a solicitor exercising care and skill would have given attention to whether there were any transitional provisions which might be relevant to their advice. He or she would have identified the potential relevance of the Consequential Provisions Act. 504 I do not intend to suggest that, upon discovering those statutes, Mr Wicks was required to draw the conclusion that s 7(1)(a) of the Consequential Provisions Act would apply as the plurality of the Full Court in Jadwan No 4 later reasoned it did. 505 That would require more of a solicitor exercising professional skill and care than I am prepared to accept is warranted. While it may now appear obvious, it is only with hindsight that the reasoning of North J in Jadwan No 3 and that of the plurality in Jadwan No 4 might appear self-evident. 506 Moreover, as at 22 July 1997, no commencement date had yet been proclaimed for the coming into force of the Aged Care Act. 507 I am however satisfied that a solicitor exercising an appropriate degree of professional care and skill in the protection and advancement of Jadwan's interests would, having become aware of that new legislation, have refrained from giving Jadwan unqualified advice that its interests would not be affected if it were to continue facilitating the relocation of Derwent Court's residents. 508 The interest that Jadwan still had that might have been affected was its desire to persuade the Commonwealth to permit it to sell its bed licences. 509 I observe that as at 25 June 1997 Derwent Court still retained the status of an approved provider. It would continue as such until Ms Halton made her final and operative decision. That was some time away - Jadwan was not formally advised that Derwent Court's approval had been revoked until 6 August 1997. The Department was pressing Jadwan to assist it to bring a conclusion to the process before then, but Jadwan lawfully and properly could have declined to provide such assistance without loss of subsidies for the residents still in its care until after it had received fuller legal advice. Of course, Derwent Court would have had to allow any resident who asked to leave to do so but the evidence before the Court is that such a desire was far from universal among Derwent Court's residents and their families.

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9.12.7 If Jadwan had been competently advised by Mr Wicks it nonetheless would not have retained Derwent Court's residents beyond 6 August 1997 510 In Badenach the plurality (French CJ, Kiefel and Keane JJ) observed at [26] that when a matter involves a failure to advise a client, the court's focus should not be on what did occur but instead what would have occurred if the solicitor had acted with the requisite professional skill and care. 511 I therefore focus on what would have occurred if Mr Wicks had provided Jadwan with the advice he ought to have as to the existence and consequences of those Acts. 512 Had Mr Wicks exercised due care and skill, I am satisfied that he would have identified the existence of the Aged Care Act and the Consequential Provisions Act on 22 July 1997. He would have informed Jadwan of those Acts' existence when he met with Mr Jeff Alexander and Ms Julie Alexander the following day. 513 Such advice would likely have led Jadwan briefly to delay facilitating the Department's arrangements for the relocation to other nursing homes of those of Derwent Court's residents. While it involves a degree of speculation I am prepared to accept that Jadwan's directors would have done so. 514 Having become aware that new legislation would soon replace the National Health Act I accept that it would have been logical for Mr Alexander and the other of Jadwan's directors to have stalled the Department and sought urgent advice as to whether there might be something in the new legislation they could take advantage of. 515 But there was not. 516 Competent advice, had it been provided, would have been to the effect that the new legislation was the framework upon which new higher standards of nursing home regulation was to be erected. 517 Competent advice, given with requisite skill and care, had it been provided, would have alerted Jadwan to the fact that to transition as an approved provider in respect of Derwent Court it would need not only to establish the invalidity of Ms Halton's revocation decision but also to retain at least one of Derwent Court's existing residents until the Aged Care Act came into force on 1 October 1997. I am prepared to infer that competent advice would include that the Aged Care Act was to come into force on 1 October 1997 - that that would be the date appears to have been widely known: see [209] above. 518 Jadwan would have been advised it faced an additional hurdle not an easier pathway. 519 Competent advice would have confirmed the difficulty of challenging Ms Halton's intention to revoke Derwent Court's approval prior to her making that decision. 520 Such advice would have identified that the only plausible basis for such a proceeding would be to assert that Ms Halton was impermissibly proposing to engage in conduct viz giving weight to the reports of SRP-1 and SRP-2 as the reports of validly constituted Standards Review Panels in the making of her decision, but that Ms Halton, properly advised, was likely to respond she had no need to do so and would not. Jadwan's legal grounds were doubtful. 521 Competent advice would have informed Jadwan that any (improbable) victory on that basis would likely to be pyrrhic - the point being conceded and the decision made nonetheless. 522 Competent advice would have made Jadwan aware that any proceeding brought after Derwent Court's approval had been revoked would be unlikely to obtain a final hearing before the new legislation came into force on 1 October 1997. Competent advice would have included that while Jadwan would have good prospects of success if Ms Halton did rely on the reports of SRP-1 and SRP-2 as being those of validly constituted Standards Review Panels, such an error would be a non-jurisdictional error (see Jadwan No 4) and that the judge hearing their review, in his or her discretion, might exercise one of the other options available under s 16(1) of the ADJR Act rather than quashing or setting aside Ms Halton's decision from the date of its making. 523 Competent advice would have confirmed that if Jadwan were to retain any residents at Derwent Court beyond 6 August 1997, subject to interlocutory relief, it would have to do so at its own expense until the decision was set aside. It was not part of Jadwan's case that Derwent Court's residents could have met the unsubsidised cost of their care. 524 Derwent Court's average payroll expenditure was $70,000 per fortnight (Ex A1 p 4146). Even with a decreased number of residents (those wanting to stay) the cost of staff required for their care would have been substantial. Only if wholly successful would Jadwan have recovered those costs. 525 Competent advice would have been that because of the fire risk to Derwent Court's aged and vulnerable residents, success in obtaining injunctive relief by way of an interlocutory proceeding could not be assured. 526 Having regard to the above, on the assumption that Jadwan would have obtained competent legal advice as a matter of urgency, the Court is satisfied that upon receiving that advice Jadwan would have chosen in any event to resume cooperating with the Department at some point before 6 August 1997 when Ms Halton's revocation decision was to come into effect. It would not have sought to prevent the removal of Derwent Court's residents.

[60]

9.13 Jadwan would have made a rational financial choice 527 Jadwan had a strong economic incentive not to stand in the way of Derwent Court's residents leaving. Had it retained its residents, Jadwan would also have had to retain Derwent Court's nursing staff. For the reasons that follow, that would have required it to forgo the Commonwealth's offer to meet the cost of Derwent Court's staff redundancies. It would not have done so. 528 Jadwan's directors had already accepted Derwent Court had to close. 529 That Jadwan had a settled resolve to "get out" is confirmed by Jadwan's conduct in the immediate aftermath of it having been notified of Ms Halton's notice of intention to revoke Derwent Court's approval as a nursing home. Without waiting for any legal advice Jadwan had called on Mr Dellar to tell him that having to meet the cost of staff redundancies would break the company. 530 Mr Jeff Alexander had wanted the Commonwealth to meet that liability. 531 I proceed on the basis that Mr Jeff Alexander was the directing mind of Jadwan. But he was not alone in pressing that request on Jadwan's behalf. 532 When giving evidence Ms Julie Alexander accepted that Ms Thorpe had been a senior official in the Department's Canberra office. In cross-examination she was asked whether she asserted a note in Mrs Joan Alexander's diary that "Julie is speaking to Anne Thorpe about staff pay and redundancies" dated 21 July 1997 was inaccurate. Ms Alexander did not deny that she had spoken to Ms Thorpe. She gave the following evidence (transcript p 602 lines 15-18): It doesn't - it doesn't accurately reflect what the - because I - I don't - it would be - how - how could I be taking to Anne Thorpe about redundancies when we've just been given a notice, like we wouldn't--- 533 I do not accept coincidence as an explanation for those events. The timing of Ms Alexander speaking to Ms Thorpe fits with Jadwan pursuing its objective of securing Commonwealth funding for redundancies both with Mr Dellar in Hobart and with senior departmental officials in Canberra. The explanation for Ms Alexander's apparent confusion in response to that question and her rejection that she herself would have raised the subject, I conclude, is that over the intervening 20 years Ms Alexander had formed a firm but false memory of having resisted rather than having played a part in Jadwan successfully achieving the outcome it had sought - that the Commonwealth would meet the cost of Derwent Court's staff redundancies. Ms Alexander's evidence that she would not have raised that issue herself involved no dishonesty - her puzzlement was not feigned. 534 Immediately after Jadwan was told that the Commonwealth was prepared to meet those costs, Jadwan gave notice to all of Derwent Court's staff. 535 On the day Jadwan did so (24 July 1997) Mr Alexander told Mr Wicks (in a conversation focussing on wanting to "save the beds") that 20 of Derwent Court's residents had already agreed to go to St Johns Park. He told Mr Wicks he "accept[ed that] the patients have to be cared for so closure has to be accepted" (Ex A1 p 4146). 536 I am satisfied that Mr Alexander's conduct in giving notice to Derwent Court's staff and his seeming equanimity in the conversation Mr Wicks recorded regarding the transfer of Derwent Court's residents were related. 537 It is implausible that Jadwan could have secured agreement from the Commonwealth to meet the cost of Derwent Court's redundancies in the order of half a million dollars except on the basis that Jadwan had indicated to the Commonwealth that it was not going to stand in the way of the transfer of its residents. 538 Notwithstanding Jadwan's surviving directors' contrary present recall, the evidence I have accepted establishes that before Jadwan had received Ms Halton's notice of intention to revoke Derwent Court's approval as a nursing home Jadwan had decided to "get out". 539 Once notified of Ms Halton's intention, Jadwan's objectives had narrowed to doing what it could to avoid Derwent Court's liability for staff redundancies and to persuade the Commonwealth to allow it to sell Derwent Court's bed licences. 540 Mr Alexander had approached Mr Dellar to ask that Jadwan be permitted to sell its bed licences and to express concern that meeting the cost of staff redundancies would break the company. 541 Mr Dellar had responded that the Department was prepared to give Jadwan 48 hours to sell the bed licences although he doubted that Jadwan would be able to do so. 542 I am satisfied that Mr Dellar would not have offered Jadwan that opportunity unless its request had been anticipated and his response authorised at a much higher level in the Department. Mr Dellar's authority to negotiate with Mr Jeff Alexander had previously been withdrawn. Clearly Mr Dellar had later been re-authorised to communicate with Mr Alexander but I am satisfied that once Ms Halton had given notice of her intention to revoke Derwent Court's approval it is highly unlikely that Mr Dellar would have had authority to have committed the Department to allowing Jadwan to sell its bed licences without that having been pre-approved. 543 I accept that on 30 July 1997 Mr Dellar told Mr Wicks that bed ratios in southern Tasmania were already met and Jadwan should consider the North West of Tasmania where bed ratios were too low. However Ms Hefford's response of 1 August 1997 to Mr Hogan who had written on Jadwan's behalf to the Department's Assistant Secretary, Residential Program Management Branch had ruled out the Department further extending the offer Mr Dellar had earlier extended to Jadwan. 544 I am not persuaded that Mr Dellar's offer would have been extended. There is no evidence to suggest the Commonwealth was not then acting in the belief (sound or otherwise) that its legal position was strong. 545 The evidence of Jadwan being offered only 48 hours to secure a buyer is consistent with it being offered one final chance to sell its bed licences before the Department had to commit itself irrevocably to making other arrangements for the ongoing accommodation of Derwent Court's residents. I am satisfied that the Department's offer of 48 hours for Jadwan to put forward a proposal for the sale of Derwent Court's bed licences was intended to be non-negotiable.

[61]

9.14 Jadwan had missed its chance to sell its bed licences as a result of procrastination 546 Jadwan had considered the option of selling Derwent Court's bed licences to stave off the revocation of its approval as a nursing home. 547 On 2 July 1997 Mr Alexander told Mr Wicks that later that day he was going to talk to a marketing firm about selling Derwent Court's bed licences. That appears to have come to nothing: no document in evidence in this proceeding refers to Mr Alexander having pursued that course. Mr Alexander's failure to follow that up had nothing to do with Mr Wicks' legal advice. 548 I am satisfied that had Jadwan either secured a purchaser for its bed licences or committed itself irrevocably to closing Derwent Court and selling them within a short period, at that time the Department would have permitted Jadwan to do so. 549 On 13 July 1997, just a week prior to Jadwan receiving notice of Ms Halton's intention to revoke Derwent Court's approval, Mr Alexander had informed Mr Wicks that he had spoken to Ms Thorpe. She had been "very cold". She had told him that "some operators choose to sell in these circumstances" (Ex R1-3 X6 marked 4123). I infer that Ms Thorpe had made that statement intending to convey that Jadwan might still avoid the revocation of Derwent Court's approval if it made that commitment. 550 However Jadwan did not tell the Department about its actual intentions. 551 Instead, although Jadwan had decided to "get out" it chose to maintain the fiction that it was committed to rebuilding and relocating. 552 The evidence before this Court establishes that had Jadwan taken early action to put its bed licences on the market there would have been no shortage of willing buyers. As noted at [405], [412] and [417] above, when Derwent Court's pending closure finally became public knowledge expressions of interest came forth in numbers. 553 But, having procrastinated, Jadwan had not been in any position to take advantage of the 48 hour window of opportunity offered to it by Mr Dellar.

[62]

9.15 Department offers to meet cost of redundancies only after Jadwan fails to sell its bed licences 554 Jadwan had contacted Mr Dellar immediately upon becoming aware of Ms Halton's notice of revocation - either on the evening of 21 July 1997 or the morning of 22 July 1997. It is uncontentious that Mr Dellar did not give any undertaking at that time regarding the cost of redundancies which Mr Alexander told him would break the company. 555 The timing and circumstances of those events (see above at [350] to [360]) entitles the Court to infer that the Department offered that concession only after Jadwan had been unable to secure a purchaser for its bed licences within the 48 hour deadline. 556 The Commonwealth's undertaking to meet the cost of redundancies was given on 24 July 1997. 557 In the Court's opinion it is open to infer that that undertaking came with an implicit price: Jadwan would be expected to dismiss its staff, cease its nursing home business and cooperate in the removal of Derwent Court's residents to alternative accommodation. The Court finds that that premise informed Jadwan's immediately subsequent conduct. Explaining Jadwan's decision to give immediate notice to all of Derwent Court's staff on 25 July 1997, Mr Alexander told Mr Wicks "that patients have to be cared for so closure has to be accepted". 558 I also note in that regard that when Mr Hogan later (on 30 July 1997) wrote to the Department to press Jadwan's case to be given more time to sell its bed licences he stated, conformably with his instructions from Mr Alexander as appear in these reasons at [393], that "we would anticipate that the home would not function pending the sale of the bed licences with all residents relocated and with the staff of the home having been given notice upon the basis that their entitlements inclusive of redundancy payments will be met by the Commonwealth". 559 Against that background, I am satisfied that even if Mr Wicks had given Jadwan the advice that a solicitor acting with requisite professional skill and care should have given it on 25 July 1997, that would not have caused Jadwan to seek to prevent the transfer of its nursing home residents. 560 Given the Commonwealth's offer to meet the cost of redundancies that would not have been a rational choice on Jadwan's part. 561 Jadwan could not have taken advantage of the Commonwealth's offer to meet the cost of staff redundancies if instead of giving its staff notice it would be keeping them on to provide ongoing care for Derwent Court's remaining residents. 562 Had the value of Derwent Court's bed licences significantly exceeded the cost of Derwent Court's staff redundancies it might be plausible to suggest that had Jadwan been competently advised it would have been prepared to take the risk of declining the Commonwealth's offer in order to put pressure on the Department to reconsider its (passed) deadline of 48 hours to sell them. 563 But that was not the case. 564 The total Jadwan would have expected to get for the sale of Derwent Court's bed licences if it had been permitted to sell them was no more than roughly equivalent to the over half a million dollars it was liable for with respect to redundancy payments (Ex R1-3 X6 marked 4190). 565 I reject that I should conclude on the basis of the agreement of the expert witnesses called in these proceedings that the unimpaired sale value of one of Derwent Court's bed licences as at that time was $30,000.00. 566 I do not question their expertise or reasoning but the evidence they gave regarding the then value of Derwent Court's bed licences was based on comparable sales of bed licences in Victoria. 567 I am satisfied, having regard to Mr Wicks' notes about what he had been told by Mr Jeff Alexander at their first meeting (Ex A1 pp 4087-4092) and later (Ex A1 p 4119) that Jadwan was well aware that the sale value of a nursing home bed licence in Tasmania was significantly less than could be obtained in Victoria. I find that Jadwan would have proceeded on the basis that the then (unimpaired) value of a bed licence in Tasmania was $12,000.00 per bed. Under pressure of a 'fire sale' this value may have been less. 568 As Jadwan had already decided to "get out" it is fanciful that, had Mr Wicks provided the advice he should have, Jadwan would then have chosen to forfeit the certainty of the Commonwealth paying for Derwent Court's accrued liability for redundancy payments in exchange for enhancing its chances of being able to sell Derwent Court's bed licences. The value of the licences, even if the Commonwealth could be persuaded by such pressure to permit their sale, would not have significantly exceeded the value of forgone redundancy payments. 569 The Court is not satisfied, on the balance of probabilities, that had Jadwan received the advice it was entitled to but did not receive from Mr Wicks, on 25 July 1997 Jadwan would have rejected the Department's offer to meet the cost of its staff redundancies to pursue an uncertain strategy of persuading it to allow Jadwan to sell its bed licences. The Court finds on the balance of probabilities that Jadwan would not have reversed the decision it had made to give notice to Derwent Court's staff. With no staff Jadwan would not have attempted to retain Derwent Court's residents. 570 The Court is not satisfied, on the balance of probabilities, even assuming Jadwan would have stalled briefly while seeking legal advice, that thereafter Jadwan would have sought to prevent the Department facilitating the removal of all of Derwent Court's residents to other nursing homes. 571 On the balance of probabilities the Court concludes that to secure the Commonwealth's funding for staff redundancies Jadwan would have allowed the removal of all residents of Derwent Court to be completed before 6 August 1997 when Ms Halton's revocation decision was due to take effect. The Court is satisfied that Jadwan would not have been willing to provide care to its residents beyond that date without the availability to it of Commonwealth subsidies.

[65]

9.16.2 Jadwan would not have sought to persuade its former residents to return in order to have brought proceedings to set aside the sanctions decision 585 For that reason it is not necessary for the Court to make a finding as to whether or not Jadwan might have persuaded a former resident to return to Derwent Court after having been relocated to another nursing home. However if I am in error in that regard I accept that the evidence given by Mr Kelvin Weston and Mr Richard Measham in these proceedings suggests that had a choice been available to them at least one of Derwent Court's residents might have been persuaded to return. 586 But at a fundamental level I am unpersuaded that Jadwan makes good its case on the balance of probabilities that it would have taken such action. To the contrary, I am satisfied that if Jadwan had received the advice it was entitled to from Mr Wicks, its directors would not have committed Jadwan to recruiting new staff and commencing proceedings in order to take the potential advantage of setting aside the sanctions decision. 587 Having received sound advice Jadwan would have recognised that the likelihood of such litigation restoring its position was, at best, far from assured and that the cost of its pursuit would be significant. Jadwan had as at that time no developed plans to do anything other than to "get out" and sell its bed licences. 588 The contention that, upon reflection, Jadwan (after the Commonwealth had met the costs of its redundancies) would have recruited new staff and would have been prepared to meet, without subsidies, the cost of running Derwent Court for at least some time to secure the chance to operate under the higher care standards that were to come in with the Aged Care Act while also buying land and undertaking a building programme costing in the order of $3 million on the prospects of success in litigation is so implausible as to require its rejection. 589 Jadwan had no history of committing to any large expenses, let alone those of the scale Mr Pearce hypothesised, without an assurance of a positive outcome. 590 Moreover, for the reasons that follow, I am not persuaded, even if I am in error in all of the above, that the Court should find, on the balance of probabilities, that Jadwan would have succeeded in obtaining an injunction and, ultimately, setting aside the sanctions decision.

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9.17.1 No inference drawn by reason of consent order made in 2005 591 Jadwan pleads at [27] of its Second Further Amended Statement of Claim that by order dated 22 June 2005 the Federal Court (North J) set aside the sanctions decision. 592 I accept the Respondents' submission that North J's order has no bearing on the resolution of the issues in these proceedings. That order was made by consent. The proceedings it resolved were exclusively between Jadwan and the Commonwealth. Its making had no practical consequences in respect of Jadwan's status with respect to the provision of aged care services at Derwent Court. 593 None of the Respondents were party to those proceedings. In these proceedings that consent order creates no res judicata or estoppel. 594 It is inappropriate to speculate as to the Commonwealth's reasons for consenting in 2005 to that order. It is sufficient for the Court to reject that it should draw any inference that that had been the Commonwealth's position some eight years earlier. 595 The evidence in these proceedings is that at all material times the Commonwealth would not have consented to an order in those terms. To the contrary, it would have robustly opposed its making. 596 Derwent Court had earlier been declared a home of concern and its current care standards had re-emerged as the subject of serious criticisms. Jadwan's expert witness, Ms Horgan, gave evidence that until the resignation of Derwent Court's former Director of Nursing, no meaningful steps had been taken to improve Derwent Court's deficiencies in care standards. I have rejected Mr Pearce's submission that the Commonwealth's criticisms had been the product of ill will. 597 I am satisfied that the Commonwealth's patience had run out with Jadwan. The fire safety issue may have been the straw that broke the camel's back, but the tone of the Department's responses to Mr Wicks and Mr Hogan suggest that the Department had irrevocably reached the conclusion that Derwent Court was an unsuitable facility for the provision of aged care services. 598 If Jadwan had attempted to re-engage staff and commenced review proceedings in respect of Ms Halton's earlier sanctions decision I am satisfied that its review proceedings would have been contested.

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9.17.2.2 The merits on an impressionistic basis 607 Although Mr Pearce did not make submissions regarding what Jadwan might have advanced as reasons for its delay, he submitted that a judge hearing an application for an injunction in respect of the sanctions decision would have concluded that two of the members of SRP-1 were disqualified because of a conflict of interest. I proceed on the basis that Jadwan submits that a judge considering whether to grant Jadwan leave to bring review proceedings out of time would conclude that Jadwan had a strong prima facie case. 608 Mr Wicks had earlier written to Mr Dellar on 12 February 1997 suggesting that Mr Van der Schoor may have had such a conflict of interest: By way of an observation only at this point, we understand that one Member of the Panel is a Mr A Van der Schoor who holds the position of Executive Officer of Aged Care Tasmania Inc. - the Association of church and charitable aged nursing care institutions in Tasmania. We understand the majority of aged care nursing homes in Tasmania are members of that Association and as such would, as a group or individually, no doubt be in a position to benefit should our client's approval be revoked and nursing beds pooled for allocation to other home operators. Mr Van der Schoor's position would appear to place him in a position of conflict in the discharge of his duties as a Panel Member and as a result, the soundness of the Panel's report must ultimately be open to question. (Ex A1 p 1485) 609 Mr Dellar had replied on 14 February 1997 rejecting that proposition (Ex A1 pp 1507-1508). 610 I am unpersuaded that the reasoning advanced in Mr Wicks' letter would have led a judge of this Court in 1997 to conclude that Jadwan had a strong prima facie case on the merits. I am unprepared to proceed on the basis that it would have been self-evident to such a judge that Mr Van der Schoor had a conflict of interest, having regard to the terms of reg 11 of the National Health Regulations as then in effect. Those Regulations required that members of a Standards Review Panel for a State include a person appointed with experience in management in the nursing care industry. 611 It would have been contestable that in the case of a body required to include a person with at least 3 years' experience in the management of nursing homes, an interest of the kind Mr Wicks raised in respect of Mr Van der Schoor was not relevantly disqualifying. 612 The same is true in respect of the conflict Mr Pearce submits would have been apparent in respect of Ms Parr's role in the nursing care industry and her serving as the Chairperson of SRP-1. Regulation 12(3) had required the Chairperson to have "experience at a professional or senior management level in, or broad knowledge of, health care administration or the provision of nursing home care". Ms Parr had that experience. Jadwan's claim that she would have been disqualified for ostensible bias is implausible. 613 Ms Parr's subsequent alleged conduct which Jadwan asserts establishes that she had had an actual conflict of interest became known to Jadwan only much later. It was then not known to be relied upon. 614 I reject that Heerey J's reasoning in Jadwan No 1 is a sound foundation upon which this Court should conclude that he or another judge of this Court would have accepted Jadwan's contention that the SRP-1 had been invalidly constituted. 615 Jadwan's case in Jadwan No 1 was advanced and decided by his Honour on the basis that SRP-2 had been constituted by only three members, one of whom, Ms Janet Cooper, had been ineligible for appointment. A quorum for a Standards Review Panel was three (regs 12 and 19 of the National Health Regulations). His Honour held the SRP-2 had only two valid members. It therefore did not meet the statutory description of a Standards Review Panel. 616 Although Ms Halton had also taken into account the findings of the SRP-1 in her revocation decision, Jadwan did not contend in Jadwan No 1 and his Honour did not decide that the SRP-1 had been invalidly constituted. 617 There are reasons to distinguish Jadwan No 1 - if "distinguish" is the correct term, given that that any judge hearing Jadwan's application for leave to bring proceedings out of time in these hypothetical circumstances would have been without the benefit of that later decision. 618 Unlike the SRP-2, the SRP-1 had been constituted by five members. 619 Even on the basis that it would be likely that another judge of this Court would have reached the same conclusion as did Heerey J that Ms Janet Cooper (whose membership was common to both SRP-1 and SRP-2) had been ineligible for appointment as a member of a Standards Review Panel, the judge would then have had to grapple with a question only glancingly addressed in obiter by his Honour Heerey J: whether a quorate and unanimous Standards Review Panel, including one ineligible member, could still validly report its findings to the Minister. 620 I am satisfied that Jadwan would not have been able to persuade such a judge that it had more than reasonable prospects of success if the matter was permitted to proceed to trial. 621 Moreover I am satisfied that the judge would have regarded the questions of fire safety and the care of vulnerable aged residents in the care of Derwent Court as involving acts of public administration in regard to which the public interest would dictate refusal of an extension even after only a short delay. 622 In the absence of a satisfactory explanation for Jadwan's delay, I am not satisfied on the balance of probabilities that in the circumstances then prevailing, having regard to the evidence which might then have been put before a judge, that an extension of time would have been granted.

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9.17.3 Jadwan fails to establish on balance of probabilities an interim injunction would issue 623 Even if an extension of time had been granted I am unpersuaded that an interlocutory injunction would have been awarded. 624 In Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (O'Neill) Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed) restated at [65] that the relevant principles were those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 (Beecham): 65 The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. (Footnotes omitted) 625 Thus O'Neill explicitly confirmed what had been said by Kitto, Taylor, Menzies and Owen JJ in Beecham to the effect that requisite standard of proof will depend on the nature of the rights an applicant asserts and the practical consequences likely to flow from the order sought. 626 In my opinion any judge of this Court would have been unlikely to conclude that the balance of convenience was in Jadwan's favour. Jadwan would be asking for interim orders that would alter the status quo to negate pressure on Jadwan to bring Derwent Court into compliance with Commonwealth care standards, most particularly those in relation to fire safety, and to compel the Commonwealth to pay Jadwan recurrent subsidies for the care of additional residents of Derwent Court despite nearly half a year having passed with Jadwan having done little to meet the requirements of the Department and the TFS. 627 Having regard to the evidence which would have been advanced in respect of the balance of convenience, I am not persuaded that a judge would have granted Jadwan an interim injunction pending trial.

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9.18 Jadwan's loss of business case 631 The Court has accepted Mr McElwaine's submission that it ought not to give judgment for Jadwan on a basis not advanced during the trial. 632 Jadwan conducted these proceedings at trial as a loss of a chance case. However it also pleads affirmative breaches of duty at [56A] of its Second Further Amended Statement of Claim. 633 At [56A(a)] of its Second Further Amended Statement of Claim Jadwan pleads that, in breach of its duty, the Second Respondent advised Jadwan "to accept the transfer of the residents from Derwent Court". 634 The evidence the Court has accepted does not go that far. Mr Wicks did not affirmatively advise Jadwan to accept the transfer of the residents from Derwent Court. 635 For the reasons discussed above, the Court accepts that Jadwan establishes that Mr Wicks breached his duty as a solicitor to serve his client with reasonable skill and care when he advised Jadwan, in response to a question asked of him by Ms Julie Alexander, that it would not suffer any adverse consequences if it were to facilitate the transfer of residents from Derwent Court. The Court has concluded that in giving that advice Mr Wicks neglected or failed to take into account the existence of the Aged Care Act and the Consequential Provisions Act, and the consequences that those Acts would have on Jadwan's capacity to continue to operate (were it to seek to do so) its business at Derwent Court. 636 However for the reasons expressed above the Court finds that that flawed advice could not be concluded to have caused Jadwan to suffer the loss of its business. Jadwan had already decided, independently of Mr Wicks, to "get out". Its concern had then been to sell its bed licences. I have concluded that the Department's offer of 48 hours for it to do so was non-negotiable, and when not met was substituted by an offer to Jadwan to meet the costs of its staff redundancies. That offer had been accepted by Jadwan notwithstanding the prescient unanswered question posed to Mr Alexander by Mr Wicks as to how Derwent Court could assert it still wanted to provide care to its residents if it had no staff. 637 At [56A(b)] Jadwan pleads that Wilson Dowd (Mr Wicks) advised Jadwan to wait until it had been served with a Notice of Revocation of its NHA approval before it commenced legal proceedings. 638 In the course of the trial Mr Pearce submitted that Mr Wicks had failed to provide advice. He did not identify any evidence which would entitle the Court to find that Mr Wicks gave the affirmative advice Jadwan pleads. I find that he did not. To the extent Mr Pearce submitted that Mr Wicks failed in his duty by omitting to give Jadwan contrary advice I have dealt with that issue: I have rejected that that failure caused Jadwan to suffer any loss. 639 At [56A(c)] Jadwan pleads that Mr Wicks advised it not to apply for an injunction to restrain the Minister from taking steps to remove residents from Derwent Court. 640 Mr Pearce has not identified any evidence which would entitle the Court to make such a finding. I am affirmatively satisfied that Mr Wicks gave no such advice. 641 However, had he given such advice, I am unpersuaded that would have been in breach of his duty to his client. The Court rejects that the Minister was liable to be restrained in the terms pleaded. 642 Revocation of Derwent Court's approval as a nursing home under the National Health Act did not require Derwent Court and Jadwan to cease providing nursing home services at Derwent Court. Derwent Court had remained at all material times licenced under Tasmanian state law for that purpose. Revocation merely removed Derwent Court's approval as a nursing home under the National Health Act. Without that approval Jadwan could no longer claim recurrent subsidies from the Commonwealth for Derwent Court's residents. The Minister was not thereby removing Derwent Court's residents. Jadwan could have continued at its own expense to provide nursing care for Derwent Court's residents. Alternatively it could have pursued the option of charging those of its residents with the financial means to pay for the care provided (and any new residents it might admit) equivalent fees. It was Jadwan's decision that those options would not be pursued. 643 At [56A(d)] Jadwan pleads that Mr Wicks, in breach of his duty, advised Jadwan that if the Court granted it an injunction to restrain the Minister, the cost of operating Derwent Court would have to be borne by Jadwan pending the hearing and determination of the proceedings and it would recover such costs only if it succeeded in its proceedings. I have made express findings at [383] that Mr Wicks did not provide that advice. 644 At [56A(e)] Jadwan pleads that, in breach of his duty, Mr Wicks advised Jadwan that an application for an injunction would be risky. 645 The Court has found that Mr Wicks did advise Jadwan that an application for an injunction would be risky: Mr Wicks had conveyed to Jadwan, and endorsed, the substance of Mr Porter's preliminary opinion that such an application would have been "perhaps a high risk application … the costs of which could run into the order of $2-$3,000…" (Ex A1 p 4144). However I am satisfied that Mr Wicks' confirmation of Mr Porter's preliminary advice to Jadwan that their then seeking an injunction would be "a high risk application" was not negligent. 646 Mr Wicks was well aware that Jadwan had failed to satisfy the TFS and the Department regarding fire safety issues relating to Derwent Court's residents. For that reason alone it is implausible to suggest that a solicitor exercising skill and care in Mr Wicks' position would be in breach of his or her duty to have given Jadwan such advice. 647 The complexities revealed by, and the errors apparently made by lawyers much more skilled than Mr Wicks as revealed by the tortured course of litigation in Jadwan No 1, Jadwan No 2, Jadwan No 3 and Jadwan No 4 reinforce that point. 648 Moreover, success in setting aside Ms Halton's revocation decision, as Mr Pearce acknowledges, would have been insufficient for Jadwan to have successfully transitioned to become an approved provider under the Aged Care Act in respect of Derwent Court's 51 residents. To succeed in that objective Mr Pearce accepts Jadwan also needed to have obtained an order setting aside Ms Halton's sanctions decision with effect from a date prior to 1 October 1997. I have given reasons at [591] to [622] why the Court is not satisfied on the balance of probabilities that Jadwan would not have been granted leave to pursue such relief out of time. I have given reasons at [623] to [627] why even if that conclusion is in error the Court is not satisfied on the balance of probabilities that an injunction would issue. 649 In those circumstances I do not find that Mr Wicks was in breach of his duty when he advised Jadwan that an application for an injunction was risky. 650 Having regard to the above findings I reject that I am entitled to be satisfied on the balance of probabilities that any breach of duty in Mr Wicks giving affirmative advice as pleaded by Jadwan caused it to lose its business.

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9.19 A tactic to persuade the Commonwealth 651 The Court has given its reasons for concluding that the Department intended its offer of 48 hours for Jadwan to sell Derwent Court's bed licences to be final and non-negotiable. 652 Once that period had expired it had offered Jadwan funds to meet the cost of Derwent Court's staff redundancies - it being implicit that Jadwan would dismiss them and close Derwent Court as a nursing home. 653 I have concluded that Jadwan would not have risked receipt of those funds by re-engaging staff before those entitlements were settled. The Court has concluded that Jadwan fails on the balance of probabilities to establish that Jadwan would have pursued judicial review proceedings with the objective of continuing to operate Derwent Court and rebuilding on a greenfield site. 654 However, on the findings the Court has made, Mr Wicks was also responsible for Jadwan not proceeding with the "tactic" Mr Hogan had recommended - to seek an injunction in respect of Ms Halton's revocation decision. That would have had a more limited aim (to back the Department against the wall) in an effort to put pressure on it to allow Jadwan more time to sell its bed licences. 655 This proposition does not require Jadwan to have had the real intention of continuing to operate Derwent Court, or the Department to accept it had. It requires an assessment of whether, if Jadwan had commenced legal proceedings seeking injunction(s), giving at least the appearance of it having that intention, that might have (to use Mr Hogan's language) backed the Department up against the wall, such that, in the circumstances then applying (including the political support Jadwan had gathered, the campaign mounted by Dr Timmins and other doctors, and the pressure from residents' families) it would have yielded to pressure and allowed Jadwan to sell its bed licences to quell the controversy. 656 I have noted that on 30 July 1997 Mr Dellar further indicated that he might look favourably on a possibility of transferring the beds to the North West of Tasmania (where bed ratios were below those in the South). 657 However, I am satisfied that Ms Hefford's reply of 1 August 1997 to Mr Hogan (copied to Mr Wicks) effectively ruled out the Department further extending the offer Mr Dellar had earlier extended to Jadwan. 658 But even if Jadwan had commenced proceedings prior to then I do not accept that Mr Pearce can make good his case that a different outcome would then have prevailed. 659 I do not discount the possibility that legal proceedings commenced prior to Ms Hefford's letter of 1 August 1997 might have increased pressure on the Commonwealth to secure Jadwan's desired outcome while the issue was controversial and in the public domain. 660 I accept the premise that commencing judicial review proceedings would have brought increased pressure on the Department. Having to deal with those proceedings would have been at best a distracting issue, and at worst it would have identified significant, albeit technical rather than substantive, flaws in the decision made by Ms Halton. 661 However I am unpersuaded on the balance of probabilities that even as a tactic, bringing review proceedings seeking injunctive relief would have forced that outcome. I am not persuaded that Mr Dellar's offer would have been extended. 662 The Court has earlier found that Jadwan would have facilitated the transfer of Derwent Court's residents before the end of Ms Halton's notice period to secure the "bird in the hand" of the Commonwealth's offer to meet the cost of staff redundancies. 663 The Commonwealth would have known that once the residents of Derwent Court were relocated, pressure to accommodate Jadwan would lessen. In any event, the Department had other pressing demands to take account of. I infer the Department had to deal with an expectation on the part of Southern Cross Homes (where most of Derwent Court's residents had been or would be relocated) that it would be allocated some or all of Derwent Court's 51 beds (Ex A1 p 2411). 664 The Department had given Jadwan a last chance to sell its bed licences. I have inferred that the Department had offered Jadwan funds to meet the cost of retrenching its staff in recognition that it had lost that chance. In those circumstances, the Department would have been most reluctant to allow Jadwan to sell the same licences it would have viewed Jadwan as having been already compensated for. 665 I reject that Jadwan establishes on the balance of probabilities that, but for Mr Wicks' action in not proceeding with Mr Hogan's tactical strategy, Derwent Court would have been granted further time by the Department. 666 For completeness I add that had Jadwan moved to re-engage staff to provide care to residents at Derwent Court after the Department had paid out all of the funds it had committed to meet the cost of their redundancies to give verisimilitude to its "tactic" that would have removed the last of any sympathy the Department might have had for it. I reject that that would have put greater pressure on the Department to yield. I infer instead that it would have steeled its determination to resist.

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JADWAN'S CASE AGAINST THE THIRD RESPONDENT (12 SEPTEMBER 1997 ONWARDS) 668 On or about 12 September 1997 the firm of Wilson Dowd split. There is a paucity of evidence regarding the circumstances of that split, but it appears uncontentious that Mr Toomey left Wilson Dowd to re-establish his own legal practice under the name of Toomey Maning & Co (the Third Respondent). He was its sole principal (transcript p 1517 lines 35-39; p 1572 line 6). Mr Wicks continued with that firm as an employed solicitor. 669 Mr Wicks gave evidence that Mr Toomey had exercised "a fair degree of supervision across all work that was being done when he was the sole principal of the firm, and he used to do that by means of a regular fortnightly work report" (transcript p 1572 lines 22-24). However, Mr Toomey's supervision had not extended to the day to day operation of Mr Wicks' files. Mr Wicks gave evidence that he had no record or recall of ever having sought counsel or a second opinion from Mr Toomey in the Jadwan matter. There was no practice that all correspondence sent on behalf of Toomey Maning containing legal advice had to be signed by Mr Toomey as the firm's sole principal (transcript p 1572 lines 46-47). 670 The commencement date of 1 October 1997 for the Aged Care Act had been proclaimed on 3 September 1997. That Act was therefore law when Mr Wicks became an employee of the Third Respondent. 671 As in the instance of the Second Respondent, I accept that Jadwan proves that, while in the employ of the Third Respondent, Mr Wicks did not provide the advice that a solicitor employing due care and skill on his or her client's behalf would have. Contrary to his duty he failed to identify the existence and consequences of both the Aged Care Act and the Consequential Provisions Act. 672 However I do not accept that Jadwan establishes that Mr Wicks' failure to advise it of the consequences of the effect of the provisions of s 7(1)(a) of the Consequential Provisions Act while an employee of the Third Respondent cost it the chance to relocate its business. 673 The Court has given its reasons for concluding that Jadwan had never committed itself to that course. It has given reasons for concluding that even before Jadwan had received notice of Ms Halton's intention to revoke Derwent Court's approval as a nursing home, Jadwan had decided to "get out" of operating a nursing home at those premises. 674 By the time Mr Wicks became an employee of the Third Respondent, all of the residents of Derwent Court had departed. Jadwan had dismissed Derwent Court's entire staff. It had not recruited a new Director of Nursing. Jadwan had not undertaken the significant works that the TFS had identified as required if Derwent Court were to house frail aged residents even in the short term. 675 Despite such circumstances, Mr Pearce submits that if Jadwan had received competent advice from Mr Wicks regarding the existence and consequences of the Aged Care Act and the Consequential Provisions Act it would have persuaded at least one former resident to return to Derwent Court before 1 October 1997 and brought judicial review proceedings. Mr Pearce submits that if Jadwan had been successful in overturning both the revocation and the sanctions decisions, Jadwan would have been entitled to rebuild its business, keeping Derwent Court open while it relocated. 676 I reject that Jadwan would have made such a decision. 677 The reasons I have given at [574] to [590] above with respect to the Second Respondent as to why Jadwan would not have pursued that course are equally relevant to the Third Respondent. 678 In some regards the difficulties would have been even greater. The further unexplained delay before commencing proceedings would have been an added problem in terms of the prospects of success of proceedings to set aside the revocation decision. 679 Nor had the financial calculus altered. To provide care for even a single resident Jadwan would have had to recruit new staff and to meet not insignificant payroll costs for at least some period of time. Mr Pearce does not dispute that Derwent Court could not claim a subsidy for that single resident's care while the Department's decision stood. 680 Jadwan had no history of committing to large expenses without the assurance of a positive outcome. Jadwan still had not developed any plans other than to "get out" and sell its bed licences. The idea that if Jadwan had on 12 September 1997 received from Mr Wicks the advice it had been entitled to it would have completely changed its business model, committed itself to the major works that the TFS was demanding so that it could operate Derwent Court in the interim and a rebuilding project costing in the order of $3 million, recruited new staff to meet, without subsidies, the cost of running Derwent Court for some unspecifiable time, and instructed lawyers to bring review proceedings (not as a strategy to put pressure on the Department to give it more time to sell its bed licences but as a committed challenge to the Department's intent to require Derwent Court to close) is implausible. 681 Moreover as I have already concluded there would have been a threshold problem for such a strategy. So long as the sanctions decision stood, a returning resident would not have been a person in respect of whom "a Commonwealth benefit … is or was payable … for nursing home care received by the patient on the day before [1 October 1997]" for the purposes of s 7(1)(a) of the Consequential Provisions Act. Assuming that to be correct, as I find it to be, Jadwan would have needed to secure a decision setting aside or quashing the sanctions decision prior to their re-admission. 682 Nor does the Court find on the balance of probabilities that Mr Wicks' failure to provide such advice during his employment with the Third Respondent caused Jadwan to lose an opportunity to sell its bed licences. I adopt and repeat the reasons I have given at [651] to [666] for that conclusion with the added observation that by 12 September 1997, with all of Derwent Court's residents having been relocated for some weeks, any pressure on the Commonwealth to make such a payment by reason of public controversy would have much lessened. 683 For the above reasons I reject the case pleaded by Jadwan against the Third Respondent.

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JADWAN'S CASE AGAINST THE FOURTH RESPONDENT 684 The Fourth Respondent is the executrix of the estate of Mr Hogan. Mr Hogan was a solicitor practicing as Coltmans Price Brent in Melbourne. There is no explanation of why he rather than that firm was proceeded against by Jadwan but that appears to be of no significance in these proceedings. 685 Prior to his death Mr Hogan confirmed in an answer to interrogatories administered on behalf of Jadwan that in 1997 he had had expertise in advising clients in relation to the statutory requirements concerning the conduct of nursing homes in Tasmania. 686 The evidence does not make clear how he had come to the attention of the directors of Jadwan but it is uncontentious that he was sought out by Jadwan and retained because of his expertise. I have set out the evidence as it relates to the circumstance of his having been retained by Jadwan at [393] to [395] above. I need not repeat it. 687 Mr Hogan's answers to Jadwan's interrogatories ([13(a)] and [14(a)]) assert that his agreement with Jadwan was wholly oral. He stated that the substance of the relevant part of the conversation between himself and Mr Jeff Alexander had been that it "may be possible to negotiate an agreement with the Commonwealth which enabled [Jadwan] to sell for relocation its 51 bed licences, to which Jeff Alexander indicated that he wished me to attempt to do so" (Ex A1 p 165). He denied having been instructed to any wider extent. 688 Given the critical importance of the scope of Mr Hogan's retainer it is appropriate, notwithstanding his evidence that the agreement was wholly oral, to have regard to the terms of Mr Alexander's letter dated 28 July 1997. That letter set out the history of Derwent Court's interactions with the Department from Jadwan's perspective. It then brought Mr Hogan up to date as follows (Ex A1 p 2370): 7. Residents have been progressively moved to Southern Cross Homes in Newtown since Thursday last week. 8. Unions have given us 100% support. 9. Our staff have been given notice and redundancy provisions are being negotiated. Southern Cross Homes are employing some of our staff. 10. The move of residents has been well orchestrated by DH&FS to the point where residents or relatives have no choice but to transfer to Southern Cross Homes; much to their displeasure and anger. 689 Under the heading "CONCLUSION" Mr Alexander had written as follows: CONCLUSION With our residents' and staffs' [sic] future now set we are looking to save the bed licenses. As stated previously our genuine intentions were two-fold:
1. Immediately update fire safety and care standards.
2. Rebuild an accredited first class aged care facility. We believe we have completed 1. It seems we have been denied the chance to complete 2. We now seek natural justice by being given the opportunity to sell the bed license [sic] without pressure and in an orderly manner. 690 In my opinion the evidence is entirely one way. In that letter Mr Alexander was informing Mr Hogan that Jadwan's previous intentions had been (contrary to what I find to be the fact) to update fire services and rebuild a new first class facility but "with our residents' and [staff's] future now set [I interpolate that to mean relocated and made redundant respectively] we are looking to save the bed licences". I find Mr Alexander's letter to be entirely consistent with Mr Hogan's evidence (as given by his answer to Jadwan's interrogatories) that his retainer had been confined to him doing what he could to help Jadwan obtain approval to sell its bed licences. 691 In that context I note that by the date of Mr Alexander's letter, 18 of Derwent Court's residents had left over the prior weekend. At the time it was written only 15 of Derwent Court's residents remained (Ex R1-3 X6). 692 I am satisfied that Mr Hogan's instructions were that Jadwan did not dispute Derwent Court had to close and that all of its residents would be relocated. Jadwan was not seeking Mr Hogan's advice as to how to prevent that occurring, or how Derwent Court might later relocate. Jadwan was retaining Mr Hogan to assist it, if possible, to sell Derwent Court's bed licences without pressure and in an orderly manner. 693 It is in that context that Mr Hogan advised Mr Wicks on 30 July 1997 that Jadwan should seek an injunction to, in his words, back the Department against the wall. Taking that action was to be deployed as a tactic to put pressure on the Department to secure that objective. 694 I note in that regard that notwithstanding that advice, Mr Hogan answered "no" to Jadwan's interrogatory [13(g)] as to whether he had advised Jadwan to seek an injunction against the Minister or the Commonwealth restraining them from (inter alia) revoking Derwent Court's approval under s 40AA of the National Health Act. 695 Mr Hogan is no longer alive to permit examination of what on its face appears to be an inconsistency. 696 It is plain that Mr Hogan did give advice to Mr Wicks that an injunction be sought. 697 The only plausible explanation is that he answered "no" to interrogatory [13(b)] because the purpose of his advising Jadwan to seek an injunction was unconnected to any intent to restrain the Minister from revoking Derwent Court's approval. 698 In any event I am satisfied that the advice Mr Hogan provided to Jadwan and Mr Wicks was confined to seeking an injunction as a tactic to put additional pressure on the Department to secure a quite different objective: consent to Jadwan being granted additional time to sell its bed licences. 699 I have earlier set out my reasons for coming to the conclusion that before Jadwan had consulted Mr Hogan, its directors had made the key decision to accept the Department's offer to meet Derwent Court's liability for redundancy payments. Jadwan had dismissed all of Derwent Court's staff. Mr Alexander's letter of instruction had referred to those events as settled (see [394] and [689] above). 700 The Department was also aware of those circumstances. Mr Hogan's reasoning and advice was not implausible but I have rejected finding on the balance of probabilities that seeking an injunction in that context would have led to the Department extending its 48 hour window for Jadwan to transfer its bed licences. 701 But in any event, Mr Hogan was not responsible for Mr Wicks' later decision (based on his understanding of Mr Porter's advice) not to proceed in that regard. On 31 July 1997 Mr Wicks had informed Mr Hogan of Mr Porter's "tactic" to seek an injunction. Mr Hogan's retainer was terminated on 5 August 1997. As at that point in time it had been his understanding, as conveyed by Mr Wicks, that Jadwan's lawyers in Hobart had agreed to file an application for an injunction immediately upon confirmation of Ms Halton's revocation decision. That they did not do so was not his responsibility. He was never advised of any change of plans. 702 I am therefore not satisfied, even had such a course been likely to have achieved its objective of persuading the Department to allow Jadwan a further opportunity to sell its bed licences (which I have rejected as an available finding) that there is any basis for holding Mr Hogan liable for failing to provide advice to Jadwan to seek such an injunction for that purpose. I reject that Mr Hogan caused Jadwan the loss of the chance it pleads on that basis. 703 I reject it was within Mr Hogan's retainer or any perambulatory duty associated with his retainer to have provided advice as to how Derwent Court might continue to operate. Mr Hogan had been given express instructions that Jadwan accepted Derwent Court would have to close. He had been told that Jadwan had given notice to its staff at Derwent Court and the residents were leaving. 704 Accordingly I reject Jadwan's case that the failure of Mr Hogan to give advice with respect to the existence and consequences of the Aged Care Act and the Consequential Provisions Act caused Jadwan to suffer the loss of its chance to continue and ultimately to relocate its business. 705 For completeness I note that Mr Pearce does not identify in his submissions any advice alleged to have been given by Mr Hogan that could have caused Jadwan to suffer the loss of its business. In any event the Court is satisfied that there is no evidence to support such a contention.

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JADWAN'S CASE AGAINST THE FIFTH RESPONDENT 706 The Fifth Respondent is a firm of solicitors. It is unnecessary to refer in detail to the facts Jadwan pleads in respect of the Fifth Respondent's alleged negligence. It is not disputed that Jadwan originally intended to join Mr Porter as a party to these proceedings. Prior to the expiry of the limitation period it issued a writ for that purpose. Counsel for the Fifth Respondent did not dispute that the Fifth Respondent had been relevantly instructed to serve Jadwan's writ on Mr Porter but had negligently failed to do so before the expiry of time for doing so provided for by the Rules of the Supreme Court of Tasmania. 707 Nor is it in dispute that the writ was unable to be revived. 708 For those reasons Mr McElwaine accepts that in these proceedings the Court is entitled to proceed on the basis that the Fifth Respondent would be liable in damages if Mr Porter's negligence caused Jadwan to suffer loss. 709 However the Court is satisfied, having regard to the findings I have previously recorded, that even assuming Mr Porter failed in his duty as a barrister to have identified the existence and consequences of the Aged Care Act and the Consequential Provisions Act, Jadwan cannot establish on the balance of probabilities that Mr Porter's negligence caused Jadwan to lose a chance to continue to operate Derwent Court while it rebuilt a replacement facility on a greenfield site. 710 The history of Mr Wicks having engaged Mr Porter and the events that then transpired between them has been set out above at [357] to [360] above. It is unnecessary to repeat all of that detail. However from that account it is clear that before Mr Porter was engaged, Jadwan had formed a firm resolve to "get out" and, without reference to its legal adviser, its directors had asked the Department to meet Jadwan's redundancy obligations. Having secured the Commonwealth's agreement to do so, at or about the same time on 24 July 1997 as Mr Wicks was meeting with Mr Porter in chambers for the first time, Jadwan gave notice of termination to all of Derwent Court's staff. 711 If Mr Porter's advice had been negligent and caused Jadwan to lose a chance to better that position he would be liable. 712 I have concluded Mr Porter's advice when initially consulted by Mr Wicks, despite that advice not having then been informed by an awareness of the existence of the Aged Care Act and the Consequential Provisions Act, was not negligent. 713 It will be recalled that Ms Halton gave Jadwan notice of her intention to revoke Derwent Court's approval as a nursing home on 20 July 1997. 714 I am satisfied that Mr Porter's preliminary advice provided on 24 July 1997 that then seeking an injunction would be "a high risk application" was not negligent. His opinion, expressed as his preliminary view, was entirely justifiable given what had been identified by at least three inspection reports as fire safety issues relevant to the care of the non-ambulant residents of Derwent Court located on the second floor. 715 What had then been in issue was the possibility of Jadwan applying for an injunction prior to Ms Halton making her final and operative decision. 716 The Court has given reasons at [476] to [492] above for having concluded that Jadwan fails to establish on the balance of probabilities that applying for an order pursuant to s 6 of the ADJR Act could have prevented Ms Halton making a final and operative decision to revoke Derwent Court's approval. 717 I further note that Mr Porter was not then purporting to express his concluded opinion. Rather, he had told Mr Wicks that he would continue to research and consider the position. 718 It had been Mr Wicks who had called Mr Porter on 28 July 1997 to inform him that Jadwan had accepted Derwent Court's closure and had decided not to seek an injunction. 719 I have noted at [387] that Mr Porter, correctly in my view, expressed some scepticism regarding the reasoning Mr Wicks advanced to explain Jadwan's decision. However Mr Wicks had reconfirmed the next day that Jadwan was not seeking an injunction. As an indicator of the finality of that position, Mr Wicks had asked Mr Porter to return his copy of the National Health Act. 720 It was only after Mr Wicks had been persuaded by Mr Hogan that to convince the Department to permit Jadwan to sell its bed licences Jadwan should seek an injunction to "back the [Department] against the wall" that Mr Wicks reverted to Mr Porter. He had done so late on the afternoon of 30 July 1997. He had asked Mr Porter if he would assist in preparing the necessary application. 721 However it is important to emphasise that the application Mr Wicks was asking Mr Porter's assistance to prepare was to be deployed merely as a stratagem to put pressure on the Department. No one, least of all Jadwan (which by then had dismissed all of its nursing staff), then had any illusions that such an application was to be brought with the purpose of allowing Jadwan to continue to operate Derwent Court while it proceeded to build a new facility on a greenfield site. 722 That Mr Porter was so instructed is confirmed by Mr Wicks' note of his penultimate conversation with Mr Hogan in which he refers to Mr Porter's "tactic" of preparing an application with the intention of it being filed after Ms Halton had made a final and operative decision. 723 That the true aim of that application was to put pressure on the Department to sell Derwent Court's beds is also confirmed by the cover sheet of Mr Wicks' facsimile of 4 August 1997 (Ex R1-3 X6 marked 4607) in which, in relation to Ms Julie Alexander's draft affidavit, Mr Wicks seeks Mr Porter's advice as to the extent that affidavit should set out "the deponents [sic] grievances as to the way in which they have been treated, the financial effects, the fact that they want to sell the 'beds' and so on". 724 Mr Porter continued with those preparations, including asking Mr Wicks to check the availability of a judge to hear an application. I accept that those preparations were not complete by the time Ms Halton's revocation decision of 6 August 1997 was notified to Jadwan. 725 But such delay as then occurred was inconsequential. I have concluded at [599] to [627] above that, whenever such an application might have been brought, Jadwan cannot establish on the balance of probabilities that such an injunction would have resulted in the Department granting Jadwan any further opportunity to have sold its bed licences. 726 I therefore turn to the advice that Mr Porter gave Mr Wicks on 11 August 1997. Mr Wicks' understanding of that advice is set out at [436] above. 727 The substance of Mr Wicks' note is that Mr Porter had advised that an injunction to secure a stay was unnecessary. 728 I accept that there is no evidence to suggest that prior to then Mr Porter had identified the existence or consequences of the Aged Care Act or the Consequential Provisions Act. I therefore accept that if Mr Wicks' note expresses the true sense of what Mr Porter conveyed to him that Mr Porter would have failed in his duty to exercise reasonable skill and care by not adverting to the potential consequences of those Acts. However, for the reasons I have given at [631] to [650] I would reach the identical conclusion as I have in the Second Respondent's instance that Jadwan thereby did not suffer a loss of its chance to continue its business and relocate in consequence. 729 However as I noted at [437] there are significant reasons to doubt that Mr Porter gave the advice that Mr Wicks had understood him to give. On 19 August 1997 Mr Porter had written to Mr Wicks in the following terms: I refer to our telephone conversation of 11 August 1997. I note that we discussed whether the need to maintain the approval status, pending any review of the determination, was sufficiently imperative to warrant proceeding with the ADJR application and associated stay. As I advised you, it seems to me that the only way a stay can presently be obtained is by way of the ADJR proceedings. This is because until the Minister reviews the determination there is no decision reviewable by the AAT, and hence no stay could be obtained by that means. The scenario was to obtain the stay (hopefully), then to adjourn the ADJR proceedings sine die and to pursue the AAT remedy. I note that you were in fact to proceed with the application for review by the Minister in any event. Not having heard further from you I assume that the ADJR proceedings are not to be pursued, at least for the time being, and that AAT proceedings will be instituted at the relevant time following the Ministerial review. My principal purpose in writing to you is to advise that I will be absent from Chambers from 25 August to 12 September 1997 and would of course be happy to speak to you further about this matter upon my return. In the meantime I thank you for your instructions and enclose a memorandum of my fees to date. (Ex R1-3 X6) 730 Despite it being an obvious inference that Mr Wicks had misconstrued Mr Porter's advice, Mr Wicks took no steps to seek further opinion or advice from Mr Porter. In those circumstances I reject that Jadwan can establish on the balance of probabilities that Mr Porter gave negligent advice. 731 In any event I have rejected that Jadwan makes out its case against any Respondent that had it been provided with the advice it was entitled to that it would have sought and obtained injunctions and ultimately been able to relocate. 732 Had Jadwan been provided with the legal advice it was entitled to receive, I have concluded that Jadwan would have chosen to cut its losses at that point, having already decided to "get out", rather than throwing good money after bad to chase what would have been in the circumstances no more than a theoretical and entirely undeveloped option involving attracting back at least one resident to Derwent Court before 1 October 1997, and recruiting new staff to care for such a resident or residents, and operating Derwent Court for the foreseeable future without Commonwealth subsidies, in order that, if it could survive the many legal and practical obstacles in its path, it might later relocate. 733 I find on the balance of probabilities that Jadwan's case against the Fifth Respondent has not been made out.

[79]

SUMMARY 734 I have concluded that Jadwan must fail in these proceedings as against all Respondents. However, the Court accepts Jadwan and its surviving directors may be excused for having a sense of grievance. 735 The Court acknowledges that when Jadwan appeared to have been successful in restoring its position in Jadwan No 1, Ms Julie Alexander then bought some land at Geilston Bay in July 1999. She was asked why she had done so. Ms Alexander gave evidence: Because we won the Federal Court cases. We won the - it was the decision by Heerey J in the appeal and we believed we could reopen Derwent Court. (transcript p 551 lines 28-30) 736 However Ms Alexander's and Jadwan's state of mind at a later point in time is not material to these proceedings. Moreover, the fact that Ms Alexander bought that land in her own name might suggest there was still some uncertainty about Jadwan's plans. 737 But in any event, at the time material to these proceedings, her father Mr Jeff Alexander was the directing mind of Jadwan. Ms Alexander's then reservations as a director about the business judgements Jadwan was making remained private. 738 The Court would understand if Jadwan's directors were to think that their company has become the magic pudding of the legal profession - cut and come again. 739 Had Jadwan received timely advice about the existence and consequences of the Aged Care Act and the Consequential Provisions Act it could have "got out" without squandering its resources on its many subsequent legal proceedings. 740 But Jadwan does not plead that its then legal advisor's negligence in failing to advise it of the Aged Care Act and the Consequential Provisions Act led it later to pursue fruitless judicial review proceedings. Quite to the contrary it pleads that, had Mr Wicks made it aware of the consequences of those Acts, on the balance of probabilities Jadwan would have obtained injunctions against both the sanctions and the revocation decisions and would have been able to maintain its business at Derwent Court while building new premises and relocating. 741 For the reasons the Court has stated, that proposition has been rejected. 742 I dismiss Jadwan's application as against each Respondent. The Applicant must pay the First, Second, Third, Fourth and Fifth Respondents' costs as assessed or agreed. I certify that the preceding seven hundred and forty-two (742) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.

The Appellant pay half the Respondent's costs of the appeal. 81 The terms of the third order made by the Full Court led Jadwan to anticipate that its status as an approved provider would be restored. However, the Commonwealth declined to act on that basis. 82 Jadwan therefore commenced further litigation to vindicate its asserted entitlement to operate Derwent Court and to receive Commonwealth funding for its residents. 83 However Jadwan faced a new problem: the National Health Act upon which its asserted entitlements were premised had by that time ceased to govern nursing home standards. The Aged Care Act repealing it had been enacted on 7 July 1997. A proclamation of 3 September 1997 had fixed the date of its commencement as 1 October 1997. As of that date the Aged Care Act had brought into effect an entirely new system for the regulation and funding of nursing homes. By contrast to the National Health Act that had provided for the approval of premises as nursing homes, the Aged Care Act now provided for the approval of providers of aged care. To succeed in the proceedings Jadwan needed to establish that its rights had been maintained by virtue of the operation of the transitional rules enacted in the Consequential Provisions Act. 84 Jadwan's proceedings were thus premised on the Consequential Provisions Act having had the effect of preserving its status. Jadwan submitted that the Consequential Provisions Act had been enacted to permit proprietors of existing nursing homes approved under the National Health Act to transition under the Aged Care Act, as approved providers for the equivalent number of nursing home residents with funding attached as their premises had had approval for under the National Health Act. 85 Because the Full Court had set aside the Minister's decision of 6 August 1997 to revoke Derwent Court's approval as an approved nursing home, Jadwan submitted that the Consequential Provisions Act had grandfathered an entitlement for it to transition to the status of an approved provider under the Aged Care Act. As such it would be entitled to receive Commonwealth subsidies for an equivalent number of nursing home residents (51) as Derwent Court had held approval for. 86 However, in Jadwan No 3 North J rejected that contention. His Honour held that the Full Court in Jadwan No 2 had expressly set aside Heerey J's order that the Minister's decision had been void and had substituted for it an order that the decision be set aside. Because the Full Court had not specified a date of effect for that order, that order as provided for by s 16(1) of the ADJR Act, operated only prospectively and from when it was made. Accordingly it operated from 4 December 1998. 87 Having so concluded, North J dismissed Jadwan's application. Derwent Court had not been an approved nursing home for the purposes of the Consequential Provisions Act when the transitional provisions took effect. The Minister's revocation of Jadwan's approval had remained in force until 4 December 1998. Jadwan not having been an approved nursing home on 30 September 1997, the day prior to the Aged Care Act coming into force, it could not benefit by reason of the provisions of the Consequential Provisions Act: see s 7. 88 His Honour added that even if he were wrong to hold that the Full Court's order had operated from that date, Jadwan would still have fallen outside the operation of the Consequential Provisions Act: 42 In the exceptional circumstance that a proprietor happened to have no patients under care on 30 September 1997, the ACA [Aged Care Act] would permit that proprietor to apply for approval as a provider under s 8-2(1) and for an allocation of places to be made under s 14-1(1). If these steps were taken on 1 October 1997, or shortly thereafter, one would imagine that the Secretary would exercise the power given by the Act to preserve the pre-existing position of the proprietor. Jadwan did not take these steps, although invited to do so by the Department. 43 On 30 September 1997, Jadwan had no patients at all receiving care at Derwent Court. They had all been removed on 23 July 1997 in anticipation of the revocation decision. 44 Ms Mortimer, who appeared as counsel for the respondents, argued that s 7(1)(a) of the CPA [Consequential Provisions Act] required that the Commonwealth benefit be payable in fact, and no benefit was payable to Jadwan in fact because it had no patients under care. Mr Heaton, of senior counsel who appeared with Mr Aghion for Jadwan, contended that it was sufficient if the Commonwealth benefit was payable in law to Jadwan, even if Jadwan had no patients in fact under care. He relied upon a purposive approach to the construction of the Act. He argued that the purpose of the CPA was to recognise the pre-existing status and rights of proprietors, and to provide for the transfer of that status and those rights without diminution or interference. That purpose would not be served, he contended, if Jadwan was not recognised as a provider of aged care under the CPA, and was not entitled to the allocation of fifty-one places. 45 I agree that Mr Heaton identified the general purpose of the CPA. However, the means provided by the sections for the recognition and transfer of status are clearly expressed. In particular specific conditions are stipulated in s 7(1) of the CPA as a prerequisite for the transfer of status. I have already explained that the way s 7(1)(a) expresses the condition for transfer of status may reflect a concern with administrative convenience. 46 In my view, the subsection is concerned with the factual situation on 30 September 1997. I accept Ms Mortimer's construction. The concept expressed in the subsection, namely, payment of a benefit in respect of care received by a particular patient on the day, directs attention to an actual occurrence. The absence of all patients from Derwent Court on that date means that Jadwan did not satisfy the requirement under s 7(1)(a) of the CPA. 47 But even if this approach is wrong, Jadwan is unable to establish that a Commonwealth benefit was payable in law on that day. 48 Mr Heaton first argued that the benefit was payable in law because the revocation decision was void from the date that it was made, and that the decision had no operative effect. I have already rejected this argument in dealing with the effect of the decision of the Full Court. 49 Mr Heaton then contended that even if my conclusion concerning the operation of the Full Court decision was correct, the Minister nevertheless acted unlawfully in removing the patients prior to the revocation decision. The only reason there were no patients receiving care at Derwent Court on 30 September 1997 was because the Minister removed them, and she had no legal right to do so. 50 The proposed amendment to the application by which Jadwan seeks to add paragraph 5A was intended to reflect this part of Jadwan's claim. As the matter was fully argued I intend to allow the amendment sought. 51 Even if there were legal basis for the argument, which I doubt, the contention fails because the evidence does not establish that the removal was unlawful. The patients may have been removed with the consent of all parties. It is telling that there is no evidence that Jadwan sought an injunction on the 23 July 1997, or shortly thereafter, to stop the Minister from, on its view, unlawfully destroying its business. Indeed, Jadwan's immediate concern was not to preserve the operating nursing home, but rather, to attempt to persuade the Minister to delay any revocation decision in order to allow Jadwan to negotiate a sale of the bed licences. Jadwan took the first formal step to challenge the revocation decision on 1 September 1997 - about five weeks after the patients were removed. 52 It follows from the foregoing discussion that, even if I am wrong in my conclusion that the Full Court decision operated from the date of the order, Jadwan would still fall outside s 7(1)(a) of the CPA because no Commonwealth benefit was payable to it in respect of care received by any patient on 30 September 1997. 89 Jadwan appealed that decision. However, in Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 (Jadwan No 4) a Full Court (Gray and Downes JJ; Kenny J separately deciding) dismissed that appeal. 90 Rejecting Jadwan's contention that because the Minister's decision had been affected by jurisdictional error it should be set aside as void from the date of its making, Gray and Downes JJ reasoned: 44 The earlier Full Court did not hold in terms that the decision to revoke Derwent Court's approval as a nursing home was a nullity. Given that it was exercising jurisdiction under the ADJR Act, it was unnecessary for that Full Court to determine whether the error was jurisdictional or not. The grounds specified in s 5 of the ADJR Act, upon which the Court may make orders in respect of administrative decisions, are not expressed in terms of jurisdictional error. At least in some cases, those grounds include errors that are not necessarily described as jurisdictional errors. An example is the ground in s 5(1)(f), that the decision involved an error of law. See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [27] and [57] per McHugh and Gummow JJ. It might be thought that, in enacting s 16(1)(a) of the ADJR Act, which permits the Court to quash or set aside a decision with effect from the date of the order or from such earlier or later date as the Court specifies, parliament was acting on the assumption that even a decision tainted by jurisdictional error could have some force and effect, and leaving it to the Court to decide what force and effect should be accorded to such a decision. It must also be clear that, to the extent to which s 5 of the ADJR Act confers jurisdiction in respect of a 'decision', it was intended that there should be jurisdiction, whether or not the decision concerned was subject to jurisdictional error. See Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 at 566 per Morling J and Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 375 per Branson J. Similar conclusions have been reached in cases concerned with merits review of a 'decision' for the purposes of other legislation in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 313 - 315 per Bowen CJ and 331 - 337 per Smithers J, Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 218 - 219 per von Doussa J (Spender and French JJ agreeing) and, in relation to an appeal to the Court on a question of law from a 'decision' of the Administrative Appeals Tribunal, in Clements v Independent Advisory Committee [2003] FCAFC 143 at [36] - [40] per Gray ACJ and North J (Gyles J agreeing). 45 The earlier Full Court had some difficulty in characterising the error that it found affected the decision to revoke approval. In the end, it chose to characterise the error as one of taking into account an irrelevant consideration, by treating the findings of the panel as having been made by a properly constituted panel. As the reasons of the Court show, it would have been perfectly proper for the Minister's delegate to take into account the views of the panel as the collective views of three people. It was only the decision-maker's ignorance as to the qualifications of a panel member that might have resulted in more weight being given to the views of the panel than would otherwise have been the case. It is not obvious that this is a finding of jurisdictional error. There is no suggestion that the Minister's delegate failed to understand the task to be performed. There is every reason to suppose that an error in giving too much weight to evidence, because of ignorance as to the true status of the persons providing that evidence, would have been regarded as something less than jurisdictional error. 46 There is some support for this view in the orders made by the Full Court. The Court deliberately set aside that part of the order of Heerey J which declared void the decision to revoke approval of Derwent Court. That order tended to suggest that there had been jurisdictional error, although his Honour did not say so in terms. Rather, he characterised the error as a failure to observe a procedure required by law and found a statutory intention that the object of the statute could not be achieved if the procedure were not followed. The Full Court substituted for this order an order setting aside the decision. The learned primary judge was correct to view this as a choice by the Full Court to make an order that would operate from the date of the Full Court's judgment, and not from the date of the decision of the Minister's delegate. His Honour was correct to follow Wattmaster in which, at 256, Sheppard and Wilcox JJ, with whom Fox J agreed, said: Section 16(1) of the Administrative Decisions (Judicial Review) Act gives to the Court a wide discretion as to the orders appropriate to be made. The words "with effect from the date of the order or from such earlier or later date as the Court specifies", in par (a), are, in our opinion, intended to do no more than to indicate that the Court has a choice from all the available possibilities: the date of the order, an earlier date or a later date. It is true that the effect of the language used is that it is unnecessary for the Court to specify a date, if it is intended that the decision will be quashed or set aside as from the date of the order, whereas specification is necessary in other cases; but specification of a particular date is, in the latter situation, in any event essential. By contrast, in the former situation, express specification is unnecessary; the relevant date appears on the face of the order itself. Neither, we think, is anything to be derived from the circumstance that "date of the order" is first mentioned; the probable explanation of that circumstance is ease of drafting. 47 The Full Court's order is thus to be taken as an order setting aside the decision from the date of the Full Court's order. It is difficult to conceive that the Full Court would have made the substitution, without exercising the power under s 16(1) of the ADJR Act to set aside the decision from its inception, if it had not intended to change the effect of the order. Unfortunately, the Full Court did not give clear reasons for the orders it made. Its only reason expressed was that it had regard to the ground on which Jadwan had succeeded in resisting, in substance, the Minister's appeal. The learned primary judge expressed the view that it seemed likely that the Full Court regarded it as just that the revocation decision remain in effect until the date of the appeal judgment because Jadwan had failed to raise before Heerey J the point on which it succeeded in the Full Court. It is at least as likely an explanation that the Full Court had regard to the powers given to the Court in respect of a decision by s 16(1) of the ADJR Act and chose to exercise the power to set aside the decision, pursuant to s 16(1)(a), on the basis that it was not satisfied that there existed jurisdictional error, which might have justified a declaration pursuant to s 16(1)(c) that the decision was void. If the Full Court had regarded the Minister's delegate as having made a jurisdictional error, it is hard to see how the point of time at which argument came to be directed to that issue could have had any impact upon the form of order that was appropriate, upon the issue being made out. 48 The judgment of the earlier Full Court cannot be discussed without making reference to the question whether, and to what extent, it is open to Jadwan to canvass these issues in the present proceeding. Whatever may have been the reasons why counsel who then appeared for Jadwan did not make submissions to the earlier Full Court as to the date from which any order it made should operate in relation to the decision, it cannot be denied that it was open to Jadwan to make such submissions. The unsuccessful attempt, during the hearing of this appeal, to reopen the orders of the Full Court only serves to underline the fact that the issue could have been raised in the earlier proceeding. In no sense can this Court sit on appeal from the judgment of the earlier Full Court, for the purpose of altering the orders the Full Court made. There is a danger that, if this Court were to act on the basis that the decision of the Minister's delegate was affected by jurisdictional error, it would be reconsidering what the earlier Full Court did. If the issue of jurisdictional error had been determined in favour of Jadwan by an explicit finding of the earlier Full Court, there would be nothing to prevent this Court acting on that finding; indeed, it would be bound to do so, by the application of issue estoppel. In the absence of such an explicit determination, any attempt by Jadwan now to obtain such a finding must fall foul of the doctrine of res judicata, on the basis that the issue could have been raised in the earlier proceeding. Even if that were not so, the operation of what is known as Anshun estoppel, derived from the High Court's judgment in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, would bar Jadwan from raising the issue here. In effect, Jadwan now seeks to assert as correct the view taken by Heerey J, that the decision of the Minister's delegate should be regarded as void, when that view was specifically rejected by the earlier Full Court. This Court could not accept Jadwan's argument without giving a judgment that would contradict the judgment of the earlier Full Court. 49 If it were open to this Court to look afresh at the effect of the decision of the Minister's delegate, the proper conclusion is that the decision could not be ignored for all purposes. Nothing in the scheme of the National Health Act at the time required that that be done. It must be remembered that the National Health Act contained no power under which patients could be removed from an approved nursing home, in the event that approval were revoked. There was no statutory bar to Jadwan continuing to provide the care it had provided to the people to whom it had provided it, even after the decision was made. The effect of the decision was only that Commonwealth benefit was no longer payable in respect of persons for whom care was provided. Of course, a decision revoking approval of a nursing home inevitably had the effect of stopping the cash flow of the proprietor. It was probably inevitable that this would require that arrangements be made for the provision of care for the patients by the proprietor of another approved nursing home. Nothing in the National Health Act required that this be done, however. It would have been open to Jadwan to continue to care for the patients in Derwent Court, whilst taking whatever steps were appropriate to have the decision set aside from the date on which it was made. If it had succeeded in doing so, it would have had an entitlement to receive arrears of Commonwealth benefit in respect of each patient for whom it had provided care in Derwent Court in the meantime. Given that scheme, there was nothing about the National Health Act that suggested a legislative intention that a decision revoking approval pursuant to s 44(1) should have no effect if the decision-maker wrongly took into account evidence provided by a panel that had no authority under the legislation. 91 Kenny J's reasoning, although concurring with the plurality's conclusion, differed in emphasis: 68 Although the grounds appearing in pars 5(2)(a) and (b) of the AD(JR) Act are "substantially declaratory of the common law" (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, at 39 per Mason J), the AD(JR) Act does not incorporate the common law distinction between jurisdictional and non-jurisdictional errors. The grounds of review specified in s 5 of the AD(JR) Act are not expressed in terms of jurisdictional error. Some of these grounds may include errors that would not be jurisdictional errors in the common law sense: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 65 and 72 per McHugh and Gummow JJ. The concept of jurisdictional error played no part in the reasoning of Burchett, Drummond and Sackville JJ, because no question of jurisdictional error arose under the AD(JR) Act. The parties before the Full Court on this earlier occasion quite properly did not make submissions on the existence or non-existence of jurisdictional error. … 78 Since Craig, the High Court has progressively simplified and rationalised the common law principles of judicial review of administrative action. The result is that today many of the common law principles resemble the statutory regime set out in the AD(JR) Act more than twenty years ago. The gravamen of the appellant's argument in the present appeal concerns the effect of this rationalisation. In the appeal, now some five years ago, Burchett, Drummond and Sackville JJ held that, in revoking Derwent Court's approval as a nursing home, the decision-maker took into account an irrelevant consideration (within the meaning of par 5(2)(a) of the AD(JR) Act) and that, in consequence, there was an improper exercise of the power (for the purpose of par 5(1)(e) of the AD(JR) Act). Had the proceeding been constituted under s 39B of the Judiciary Act, their Honours might have found that the decision-maker had regard to an irrelevant consideration and that, in consequence, there was jurisdictional error in the sense discussed in Craig and later cases. It does not follow from this, however, that a decision made by the Federal Court of Australia in the exercise of the jurisdiction conferred by the AD(JR) Act can be treated as if it were a decision in exercise of the jurisdiction conferred by s 39B of the Judiciary Act. The statutory regime and the jurisdiction that it confers is not the same as the common law and the jurisdiction that arises by virtue of s 39B of the Judiciary Act. 79 Further, in relation to remedies, there remain some significant differences between the AD(JR) Act and the common law. One of these differences is relevant to the disposition of the present appeal. In particular, the remedies available under s 16 of the AD(JR) Act are broader and more flexible than those available at common law. As Sheppard and Wilcox JJ (with whom Fox J agreed) said in Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253, at 256: Section 16(1) of the Administrative Decisions (Judicial Review) Act gives to the Court a wide discretion as to the orders appropriate to be made. The words 'with effect from the date of the order or from such earlier or later date as the Court specifies', in par (a), are, in our opinion, intended to do no more than to indicate that the Court has a choice from all the available possibilities: the date of the order, an earlier date or a later date. It is true that the effect of the language used is that it is unnecessary for the Court to specify a date, if it is intended that the decision will be quashed or set aside as from the date of the order, whereas specification is necessary in other cases; but specification of a particular date is, in the latter situation, in any event essential. By contrast, in the former situation, express specification is unnecessary; the relevant date appears on the face of the order itself. Neither, we think, is anything to be derived from the circumstance that 'date of the order' is first mentioned; the probable explanation of that circumstance is ease of drafting. Having in mind what is involved in "setting aside" or "quashing" (as to which see Commissioner for Railways v Cavanough (1935) 53 CLR 220 at 225) it may, at first sight, seem strange to speak of setting at naught a decision as at a particular date. However, it is consonant with the general scope and purpose of the Act and its varied application that there may be cases in which a decision is to be set aside, and, according to ordinary understanding, to become a nullity, but in which the nullifying should nevertheless take effect from some later date. The provision of such an option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio … . The processes of the Court when granting relief under the Administrative Decisions (Judicial Review) Act are very wide and considerations going to the date as at which an order is to take effect quite naturally fit the general scheme. 80 In the earlier appeal, Burchett, Drummond and Sackville JJ expressly set aside the trial judge's declaration that the decision to revoke the approval of Derwent Court was void. In place of this declaration, the Full Court ordered that the revocation decision be set aside. The primary judge in this proceeding was plainly correct to view this as a choice by the Full Court to make an order that would operate from the date that it was made and not from the date of the decision of the Minister's delegate. 92 The plurality also addressed the further question considered by North J as to whether the relief Jadwan had sought could, in any event, have restored its position. They did so in the following terms: 51 Even if Jadwan were able to establish that the decision to revoke the approval of Derwent Court should be treated as a nullity, this would establish only one element of s 7 of the Consequential Provisions Act. It would establish that Jadwan was the proprietor of an approved nursing home immediately before the commencement day. Section 7 would operate to deem Jadwan to be an approved provider only if one of the alternatives in s 7(1)(a) and (b) applied. No attempt was made to establish any grant of a certificate under s 39A of the National Health Act, so alternative (b) could not apply. Alternative (a) applied only if Commonwealth benefit was payable to Jadwan in respect of an approved nursing home patient under the National Health Act, for nursing home care received by the patient on the day before the commencement day. 52 By its terms, s 7(1)(a) directs attention to factual reality. Before it can apply, there must have been at least one patient actually receiving nursing home care on 30 September 1997. There must have been the actual receipt of, or entitlement to receive, Commonwealth benefit in respect of such a patient. The words of s 7(1)(a) are plain. If it is necessary, confirmation of their intention to apply to a factual situation is provided by s 7(2)(a)(i), which is designed to ensure the continuity of the operation of a nursing home, to the extent to which it is operating. 53 Treating the decision to revoke the approval of Derwent Court as a nullity would not assist Jadwan to satisfy the requirement of s 7(1)(a). As a matter of fact, on 30 September 1997, there were no patients receiving nursing home care in Derwent Court and no Commonwealth benefit was paid or payable in respect of any such patient. The entitlement to receive Commonwealth benefit in respect of an approved nursing home patient, pursuant to s 47(1) of the National Health Act, was dependent on the actual receipt of nursing home care in the particular approved nursing home. 54 Jadwan's submission that treating the decision to revoke approval as a nullity is enough to cause s 7(1)(a) of the Consequential Provisions Act to apply must be rejected. To the extent to which it is based on the existence of a cause and effect relationship between the revocation decision and the removal of the patients, the submission is not made out. On the facts, the removal of the patients began and was completed before the revocation decision was made. It was effected during a period when Jadwan had an entitlement to make submissions to the Minister's delegate about whether the intention to revoke, notified on 20 July 1997, should be carried into effect. No reason was advanced for this Court to overturn the finding of the primary judge that the evidence did not establish that the removal of the patients was unlawful. The situation appears to have been that, in anticipation of the formal revocation of the approval of Derwent Court, Jadwan cooperated with officers of the Department to effect the removal of patients to nursing homes where Commonwealth benefit would continue to be payable in respect of them. In doing so, it acted in the interests of both itself and the patients. As has already been pointed out, there was nothing to prevent Jadwan continuing to provide nursing home care for the patients at Derwent Court, even after the approval under the National Health Act had been revoked. The only consequence of the revocation was that Jadwan could not receive Commonwealth benefit or other benefits under the National Health Act in respect of any patient for whom it was providing nursing home care in Derwent Court. Any attempt to continue to conduct the nursing home would have been to the financial detriment either of Jadwan or of the patients who would have had to pay the full cost of their care. There is no issue of penalising Jadwan for its cooperation in the removal of the patients. The result would have been the same, in terms of the application of the National Health Act, if there had been a power to compel their removal and they had been removed against Jadwan's will. 55 To say that the impending revocation of approval was the reason for the removal of the patients was one thing. To say that treating the revocation as a nullity requires that the removal be treated as if it had not happened is quite another. The likelihood is that Commonwealth benefit was paid in respect of each of the patients removed. It was paid to the proprietor or proprietors of some other approved nursing home or homes. To suggest that it should be treated as having been payable also to Jadwan on the basis of notional patients on 30 September 1997 would be to rewrite s 47(1) of the National Health Act. 56 Irrespective of the outcome of the argument about causation, the position remains that, on 30 September 1997, there were no patients receiving nursing home care in Derwent Court. Whatever the reason for the absence of patients, it is that absence that prevents Jadwan taking advantage of s 7(1)(a) of the Consequential Provisions Act. Section 20 of the Consequential Provisions Act had nothing on which to operate. 93 While the observations of both North J at first instance in Jadwan No 3 and the plurality in Jadwan No 4 are necessarily obiter, no party in these proceedings disputes that the correct construction of the transitional provisions provided for by s 7 of the Consequential Provisions Act is that Jadwan could not have benefited from those provisions unless Derwent Court not only had the status of an approved nursing home, but also was in receipt of a Commonwealth benefit payable on the day before the commencement day of the Aged Care Act (ie 30 September 1997) for nursing home care actually received by at least one resident. 94 Mr Pearce thus opened Jadwan's case on the basis that Jadwan's former legal advisors had negligently failed to advise Jadwan as to the necessity of it obtaining an injunction to set aside a decision purportedly made on 6 August 1997 by a delegate of the Minister pursuant to s 44(2) of the National Health Act to revoke its licence to operate Derwent Court and to retain at least some residents at Derwent Court as at 30 September 1997 so that it could obtain the benefit of the Consequential Provisions Act. 95 Mr Pearce thereafter conducted the trial on Jadwan's behalf on what the Court understood to be the premise that Jadwan's case was that its lawyers' negligence had cost it the chance, as the proprietor of an approved nursing home under the National Health Act, to transition pursuant to the Consequential Provisions Act to become an approved provider of aged care services upon the Aged Care Act coming into force on 1 October 1997. Had Jadwan been properly advised it would have been able to continue operating a nursing home at the same premises or relocating its nursing home (with funding attached to its residents) to a new facility on a greenfield site. Alternatively, as Mr Pearce contended in opening, Jadwan was denied a chance to have sold its 51 bed licences in late 1997. 96 As noted, prior to closing submissions, Jadwan formally abandoned its contention that the failure to give such advice had cost Jadwan a chance to have continued to operate a nursing home from its existing premises until the present. 97 However, that the trial had previously been conducted as a "loss of a chance" (or a loss of opportunity) case can be illustrated by the submissions Mr Pearce advanced on the issue decided by the Court in these proceedings in Jadwan Pty Ltd v Rae & Partners (A Firm) (No 3) [2017] FCA 1045 (Jadwan No 5). 98 In making submissions on the admissibility of pricing information provided to Jadwan by Mark Selby-Hele (of "Aged Care Developments") for the construction of a new nursing home on a greenfield site Mr Pearce referred to the exercise that he submitted the Court would be required to undertake in deciding this matter: And if your Honour accepts that there has been such a breach of the duty of care, your Honour then turns to the question about whether it has caused any loss. Now, the moment we move into that question, we move - and I've had to say a number of things about this, but we move into the realm of the past hypothetical fact and there is a vast number of past hypothetical facts that your Honour will have to make findings about and we all accept that. Your Honour will have to make a finding about if Jadwan had got the advice that we say it should have been given, would it then have applied for an injunction. Your Honour has got to decide that on the balance of probabilities. If the application for the injunction was made, would the injunction have been granted? Your Honour has got to decide that on the balance of probabilities. If the injunction had been granted and Jadwan on 1 October had a valid approval for 51-bed licences transitioned then into the new regime, would Jadwan then have continued to operate this business. Your Honour has got to decide that. And then your Honour has got to decide, "Well, how would it have done that? Would it have stayed on at Derwent Court?" Now, if your Honour decides that, then your Honour has got to think, "Well, what would it have cost Jadwan to stay on at Derwent Court," or your Honour might take the view that, "No, Jadwan would have rebuilt," any your Honour has got to decide that on the balance of probabilities, but it is a past hypothetical fact. And if that's what your Honour decides, your Honour then has to work out what it would have cost to rebuild as a matter of past hypothetical fact because it didn't happen. We have to imagine it would have happened. Now, the High Court has told us on at least two occasions, and we will go to these matters in closing submission eventually, but the High Court has told us that in the realm of past hypothetical fact a lot of the time there's not much you can do but speculate and engage in conjecture. You just have to do that. There needs to be some evidentiary basis for it, but it is ultimately a matter of speculation and conjecture. And the evidence that we rely on is the evidentiary basis for the speculation and the conjecture that your Honour will have to engage in about what it would have cost Jadwan to relocate. (transcript p 833 lines 1-32) 99 That submission was advanced on a loss of a chance analysis. Mr Pearce's closing written submissions put the Applicant's case explicitly on that basis. 100 However, in closing oral submissions, without notice, Mr Pearce sought to rearticulate the basic premise upon which these proceedings were to be decided. In respect of all but the Fifth Respondent, he submitted, the proceeding was not a loss of a chance case, rather, Jadwan's cause of action was for "loss of property": … We plead the claim against the Fifth Respondent as a loss of opportunity, but we plead against the other four respondents loss of property. That's paragraph 70. The negligence caused loss; the loss is the loss of the business. So that's how we pleaded it. I don't think I opened the case on any different basis, your Honour, but your Honour I accept that our written submissions accept the proposition that it's a loss of opportunity case. And what I want to now say to your Honour is if you want to regard it that way, in the same way this was done in the joint reasons [in Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440], you reach the same result. (transcript p 1878 line 12-19) 101 In submissions in reply, Mr McElwaine SC expressed concern that the Applicant had pleaded, opened and run its case on the basis that it was a loss of opportunity case. It had filed written closing submissions expressly and exclusively on that premise. Jadwan's counsel should not be permitted belatedly to contend it was a loss of business case in those circumstances (transcript p 1919 line 30 - p 1920 line 20). It would be unfair for the Court to permit that course to be taken. That submission was adopted by all of the Respondents. 102 Mr McElwaine submitted that the Applicant's rearticulation of its case was, in any event, based on a misunderstanding of Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440 (Badenach), which was a lost opportunity case, and contended that Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159 (Hill) was not analogous because the relevant negligence in that case did not involve a failure to advise: It's plainly a lost opportunity case […] It's not a case about opportunity to litigate, although that's one aspect. It's a case about if I had been given different advice, then I had the opportunity of avoiding the detrimental impact of decision making by the Commonwealth […] that's the lost opportunity. (transcript p 1920 lines 6-24) 103 Mr McElwaine's objection to Jadwan rearticulating the premise of its claims at such a late stage was both understandable and justified. The trial had spanned several weeks. It had been conducted throughout without close reference to the pleadings. 104 Mr Pearce opened Jadwan's case on the basis of an unpleaded alternative scenario that, but for the negligence of its legal representatives, Jadwan would have been able to sell, and would have sold, its bed licences. Given that no objection had been taken in respect of that opening, and that the trial proceeded on the premise that Jadwan would seek to make good that element of its case, I rejected an objection pressed by Mr McElwaine later in the trial that certain evidence Mr Pearce had sought to adduce to support that proposition should not be admitted in the absence of express pleadings. The trial had been conducted to that point, without objection, on the basis of Mr Pearce's opening. It did not appear to the Court that any unfairness would be occasioned to the Respondents given that in respect of the quantum of damages, they had elected merely to put Jadwan to proof. Further, the conduct of the trial, rather than the pleadings, which until that point had hardly been mentioned, should govern the outcome. I subsequently granted leave to Jadwan and the Respondents to amend their respective pleadings to reflect the actual conduct of the trial. 105 To put it bluntly, for better or for worse, the trial was conducted on the basis that Mr Pearce's opening had set its parameters. There was almost no mention of the pleadings. 106 It would be inconsistent with the Court having facilitated that approach (which then had benefitted Jadwan) to allow Jadwan, months after the trial in which a proposition had never been articulated, and contrary to its closing written submissions, to entirely reformulate its case on the basis of its formal pleadings. 107 I accept Mr McElwaine's submission that the Court should not permit Jadwan to resile from the case Mr Pearce had conducted on its behalf in a trial extending over four weeks on the basis of a paragraph of a lengthy pleading to which no attention had earlier been directed. 108 I further accept Mr McElwaine's submission that, having regard to Badenach, Jadwan's cause of action as against each Respondent in any event is properly to be understood as a claim for the value of a lost opportunity. Mr Pearce in closing oral argument submitted for the Court to find to the contrary, but in the Court's opinion advanced no persuasive rationale in support. 109 However, lest both of those conclusions be in error, I will make notional findings against the contingency that an appeal court might reject my reasons for not permitting Jadwan to rearticulate its cause of action against the first four Respondents as a claim for loss of property.

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