Manny v David Lardner Lawyers [2024] ACTCA 12 | Case summary

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Manny v David Lardner Lawyers (No 4) Citation: [2024] ACTCA 12 Hearing Date: 16 November 2022 Decision Date: 4 April 2024 Before: Loukas-Karlsson, McWilliam and O’Sullivan JJ Decision: (1) The appeal is dismissed; (2) The appellants are to pay the respondents’ costs of the appeal; (3) Costs are to be assessed on a party-to-party basis unless the respondents apply to the Court otherwise within seven (7) days of the date judgment is entered. Catchwords: APPEAL – PRACTICE AND PROCEDURE – Whether the primary judge should have recused herself – appellant has not demonstrated a basis for apprehended bias – appellant has not demonstrated a lack of procedural fairness – recusal unnecessary – appeal dismissed APPEAL – CIVIL LAW – Whether rejection of the appellant’s claims in tort, contract, and equity at first instance was correct in law – no error established – primary decision upheld – no breach of duty of care – no economic loss found – advocate immunity applied – no breach of solicitor retainer – no breach of fiduciary obligations – claims precluded by s 153(1) of the Bankruptcy Act 1966 (Cth) – claims not provable in bankruptcy under s 82(2) of the Bankruptcy Act 1966 (Cth) – claims time-barred by s 11(1) of the Limitation Act 1985 (ACT) – respondents were not retained in Family Court proceedings to act for the fifth appellant – appeal dismissed Legislation Cited: Bankruptcy Act 1966 (Cth) ss 27(1), 35, 35A, 58(3), 82(1), 82(2), 153(1), 153(4) Civil Law (Wrongs) Act 2002 (ACT) ss 40, 41, 42, 43, 45, 46 Constitution s 75 Court Procedures Act 2004 (ACT) ss 5A, 5A(2) Evidence Act 2011 (ACT) s 41(1)(b) Limitation Act 1985 (ACT) s 11(1) Partnership Act 1963 (ACT) ss 14, 14(2), 16 Supreme Court Act 1933 (ACT) ss 7, 37E Aon Risk Services Australia Ltd v Australian National Cases Cited: University [2009] HCA 27; 239 CLR 175 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 Artistic Builders Pty Ltd v Nash [2010] NSWSC 1442 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 Badenach v Calvert [2016] HCA 18; 257 CLR 440 Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; 188 FCR 140 Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 Clark Boyce v Mouat [1994] 1 AC 428 Clifton v Duong [2019] ACTCA 22; 347 FLR 30 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 David v David [2009] NSWCA 8 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fox v Percy [2003] HCA 22; 214 CLR 118 Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66; 374 FLR 1 Hawkins v Clayton (1988) 164 CLR 539 Heydon v NRMA Ltd; Bateman v NRMA Ltd; Morgan v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392 Kendirjian v Lepore [2017] HCA 13; 259 CLR 275 Kioa v West (1985) 159 CLR 550 Lee v Lee [2019] HCA 28; 266 CLR 129 Manny v David Lardner & Associates [2018] ACTSC 159 Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 Manny v Nissen (No 2) [2023] ACTCA 20; 377 FLR 169 Mantonella Pty Ltd v Thompson [2009] QCA 80; 2 Qd R 524 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 Metropolitan Properties Co (FGC) Ltd v Lannon (1969) 1 QB 577 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 P and W v Manny [2010] ACTSC 50 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Rigg v Sheridan [2008] NSWCA 79 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 Rogers v Whittaker (1992) 175 CLR 479 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Thorne v Kennedy [2017] HCA 49; 263 CLR 85 Warren v Coombes (1979) 142 CLR 531 Webb v The Queen (1994) 181 CLR 41 Texts Cited: Alan R Abadee et al, Professional Liability in Australia (Thomson th Reuters, 4 ed, 2023) JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, (LexisNexis th Butterworths, 5 ed, 2015) Parties: Jeff Manny (First Appellant) Jeff Manny Constructions Pty Ltd (Second Appellant) JK3L Pty Ltd (Third Appellant) Lonagann Pty Ltd (Fourth Appellant) Landagency Pty Ltd (Fifth Appellant) Ernest David Lardner & Kenneth William Power t/as David Lardner Lawyers (First Respondent) Kenneth William Power (Second Respondent) David Lardner Lawyers Pty Ltd (Third Respondent) Representation: Counsel Self-represented (Appellants) M Walsh SC and J Larkings (Respondents) Solicitors Self-represented Boettcher Law (Respondents) File Number: ACTCA 59 of 2021 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 5 November 2021 Case Title: Manny v David Lardner Lawyers (No 2) Citation: [2021] ACTSC 289 LOUKAS-KARLSSON AND O’SULLIVAN JJ: Introduction

As at 2009 and 2010, the first appellant (Mr Manny) and the second, third and fourth appellants (together known as the Jeff Manny Group or JMG) had a large property portfolio that was heavily geared with the Australia and New Zealand Banking Group Limited (ANZ).
Loan facilities in the total sum of $14,008,000, which had been provided by the ANZ pursuant to a letter of offer from the ANZ (ANZ Facilities) dated 22 June 2009, were due to expire on 17 October 2010. The value of the properties JMG owned, and over which the ANZ had taken security, had dropped significantly and were valued at about $10-$12 million. In total, the ANZ was owed about $17 million. In short, the JMG was in deep financial trouble.
Mr Manny is the sole director, secretary and shareholder of those companies within the JMG group and the fifth appellant.
In late 2009, the JMG defaulted on their loan obligations to the ANZ and the ANZ issued default notices to Mr Manny and the JMG during 2009 and 2010.
Prior to September 2010, the ANZ’s solicitors had written to Mr Manny telling him that the ANZ Facilities would not be renewed or extended upon their expiry on 17 October 2010. On that date, the ANZ Facilities had to be repaid.
Despite numerous notifications that the ANZ Facilities would not be extended and must be re-paid in full on 17 October 2010, the ANZ Facilities were not repaid.
In 2007, Mr Manny’s wife had instituted property proceedings in the Family Court of Australia (the Family Court proceedings). The JMG was joined to those proceedings.
On 5 February 2010, the Family Court made an order restraining Mr Manny from selling or further encumbering the real estate assets owned by the JMG.
The matter proceeded to trial in the Family Court. Faulks DCJ made final orders on 13 July 2010 (which were amended under the slip rule on 14 July 2010) (Final Orders) requiring Mr Manny to pay to Ms Manny the sum of $1,258,000.00 within 14 days, failing which the JMG properties were to be sold in three groups or tranches, identified as group or tranche A, B and C respectively, in a cascading fashion.
After the Final Orders were made by Faulks DCJ, Mr Manny and the JMG retained the respondents to the appeal, who were the first, second and third defendants respectively in the Court below, to act in the Family Court proceedings.
The primary judge referred to the defendants collectively as “DLL”, an acronym we also adopt. In these reasons we refer to the retainer of DLL as the “DLL Retainer”.
Notwithstanding there were three defendants named, the key figure across all three defendants was the third defendant (Mr Ernest David Lardner) who was the solicitor retained by Mr Manny and the JMG. There was an issue at trial as to whether DLL was retained to represent the fifth appellant, Landagency Pty Ltd.

Background

There are two separate factual scenarios operating in this matter which overlap to a limited extent. Mr Manny, who appeared in person for himself and on the part of all appellants before this Court, conflated these two factual scenarios. To a large extent, the respondents’ summary of facts also combined the factual scenarios in one summary of facts. It is appropriate to divide the respondent’s summary of facts into two distinct factual scenarios.
The critical point that must be made in relation to the first factual scenario is that irrespective of what was happening in the Family Court, the JMG owned both commercial and residential real estate which was the subject of the ANZ Facilities.
During 2010, the ANZ notified Mr Manny nine times that the ANZ Facilities would not be extended or varied in any manner and that the debts must be repaid in full on or before 17 October 2010. In particular: (1) By letter dated 21 June 2010, the ANZ’s solicitors advised Mr Manny of a number of events of default including the JMG’s significant outstanding liabilities (including a debt to the Australian Taxation Office) as well as the JMG’s potential insolvency and that should the orders proposed by Faulks DCJ become final, the JMG would be in breach of the ANZ’s Loan-to-Value Ratio (LVR) requirement that the LVR not exceed 65%, reducing to 60%; (2) On 16 August 2010 and 18 August 2010, the ANZ’s solicitors gave notice to Mr Manny of further default of the ANZ Facilities; and (3) On 22 September 2010, the ANZ’s solicitors reiterated to Mr Manny the JMG’s defaults and stated again that the ANZ Facilities would expire on 17 October 2010 and not be renewed or extended.
On 17 October 2010, the ANZ Facilities expired. The JMG and Mr Manny had not repaid their debts in full to the ANZ.
On 1 November 2010, the ANZ’s solicitors served further notices of default to Mr Manny and the JMG in relation to their failure to repay the monies owing pursuant to the ANZ Facilities.
Mr Manny tried to refinance with the Bank of Queensland, unsuccessfully. Mr Manny was also unsuccessful in obtaining any other refinance. The result was that the JMG was financially doomed prior to 17 October 2010. On 30 November 2010, the ANZ’s solicitors issued notices of default and demand.
On 22 December 2010, the ANZ appointed rent receivers to the JMG properties and on 21 January 2011 the ANZ appointed receivers for the sale of the JMG’s properties. On 28 February 2011, administrators were appointed to the JMG entities. On 18 April 2011, liquidators were appointed to the JMG entities.
The second factual stream concerns Mr Manny’s proceedings in the Family Court and, in particular, revolves around orders made in the Family Court on 27 August 2010 and 10 October 2010.
Following a trial in the Family Court in 2010, Faulks DCJ made the Final Orders by which Mr Manny was to pay Ms Manny $1,258,000.00 within 14 days, failing which the JMG properties were to be sold in three groups or tranches. The Final Orders allowed the ANZ to exercise its rights of security and allowed Mr Manny to refinance but prevented him or the JMG from incurring extra debt.

The notice of appeal

The appellants’ further amended notice of appeal upon which the appeal proceeded is a prolix document containing some 69 paragraphs and on occasions is difficult to comprehend. It puts a number of the same propositions repeatedly but differently phrased. On the day of the appeal hearing, the appellant provided a two-page document which summarised some but not all of the grounds of appeal.

Grounds of appeal

As we have previously noted, the grounds of appeal, variously put, are each predicated on the primary judge: (1) Failing to recuse herself on the basis of apprehended bias prior to trial, during the trial, and demonstrated apprehended bias in her Honour’s Reasons: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289; (2) Prejudice against the appellants; and (3) Failing to provide procedural fairness to the appellants.
Mr Manny specifically disavowed actual bias as an appeal ground during the appeal. Under those circumstances, it is difficult to see any difference between apprehended bias and “prejudice”. Accordingly, we will consider any contention of prejudice at the same time as we consider apprehended bias.
The primary judge noted the plaintiffs’ causes of action were breach of contract, breach of fiduciary duty and breach of duty of care.
The primary judge made a number of findings of fact and made adverse credibility findings against Mr Manny. None of the findings of fact or credibility are challenged directly. Rather, it is the allegation of apprehended bias, prejudice and/or a lack of procedural fairness which are used in an attempt to overturn her Honour’s findings.

Apprehended bias – principles

In Charisteas v Charisteas [2021] HCA 29; 273 CLR 289, the High Court said at [11]- [13]: 11. … The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial -that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, secondly, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merit. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. 12. As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”. 13. Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972: “The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.” (Citations omitted)
In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, Gleeson CJ and McHugh, Gummow and Hayne JJ said at [6]-[8]: 6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (Citations omitted)

Interest

As to the contention of apprehended bias, prejudice and a denial of procedural fairness arising out of “interest” because Mr Lardner, as one of the parties before her Honour, was a lawyer, there is nothing identified by the appellants as to what it is that might be said to lead the primary judge to decide the case other than on its legal and factual merits. That being the case, there is no “logical connection” between that matter and the feared departure from the judge deciding the case on its merits: Charisteas at [11], Ebner at [6], [8]. This contention is without foundation and should not have been made. This aspect of ground 5.6 and all other grounds where it is raised, fails.

Prejudgment

So too, the contention of prejudgment on the basis Mr Manny “was a Muslim and so called a terrorist” has no foundation and is therefore baseless. This contention fails.

Association

The contention that the primary judge displayed apprehended bias on the basis of an association between her Honour, Gray J and “P”, who the appellants contend was a part-time judge in the ACT courts, is completely unsubstantiated. It is a serious and offensive allegation that should not have been made. This contention is ground 5.6 and all other grounds where it is raised fails.

Extraneous information

The appellants contend apprehended bias, prejudice and a lack of procedural fairness on the part of the primary judge because of adverse credibility findings against Mr Manny made by Gray J in P and W. The appellants make no attempt to identify any facts or reasons sufficient to satisfy the first or second tests in Charisteas, nor do they identify prejudice, nor a lack of procedural fairness. Once again, this serious allegation should not have been made. This aspect of ground 5.6 and all other grounds where it is raised fails.

Other Grounds

In this section of these reasons, we deal with the remaining substantive grounds that assert apprehended bias, prejudice and/or a denial of procedural fairness for a particular reason, noting that the assertions of “Interest”, “Prejudgment”, “Association” and “Extraneous information” have no merit and fail at the outset. We also deal with whether the other complaints which are made about various findings are made out.

Conduct prior to trial (grounds 5.6, 5.7-5.12)

The appellants assert the primary judge did not disqualify herself prior to the final hearing notwithstanding her Honour’s “Interest”, “Prejudgment”, “Association” and “Extraneous information”. We have dealt with each of those assertions above. None of them succeed.
At grounds 5.8, 5.10-5.12, the appellants assert that the primary judge misused her power, presumably as Chief Justice, to take over the final hearing when McWilliam AsJ had the conduct of the matter prior to that time.
There is no basis for this contention. The primary judge did not “take over” the final hearing. Her Honour heard the matter from opening to closing and delivered judgment. No application was made prior to, during, or after closing submissions for the primary judge to disqualify herself nor was there any apparent reason for her Honour to do so.
To contend that any judge, far less a Chief Justice, has misused their power to “take over a hearing” in circumstances where it appears her Honour has allocated the matter to herself (one assumes as part of the ordinary processes of the Court) and in circumstances where the subtext is that that power was exercised for an improper purpose is an extremely serious allegation. There is absolutely no basis upon which such a contention could or should be made and it reflects poorly on the appellants to have made such a contention. Once again, it should not have been made. Ground 5.8 fails.
Ground 5.9 refers to s 5A of the “Court Procedures Rules 2004” and the primary judge’s failure to not apply that provision to disqualify herself.
Section 5A of the Court Procedures Act 2004 (ACT) provides: 5A Main purpose of civil procedure provisions (1) The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes— (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting subsection (1), the main purpose includes the following objectives: (a) the just resolution of the real issues in civil proceedings; (b) the efficient use of the judicial and administrative resources available for the purposes of the court; (c) the efficient disposal of a court’s overall caseload; (d) the timely disposal of civil proceedings; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them (including the power to make rules) must be exercised or carried out, in the way that best promotes the main purpose. (4) The parties to a civil proceeding must help the court to achieve the objectives. (5) In this section: civil procedure provisions means— (a) the rules made under section 7, in their application to civil proceedings; and (b) any provision of this Act in relation to the practice and procedure of a court in civil proceedings. court includes a tribunal that is a prescribed tribunal under section 6.

Grounds 5.16 – 5.19

These grounds deal with advocate’s immunity, limitation, and the bankruptcy of Mr Lardner. We deal with these grounds later in these reasons.

Credibility (grounds 5.61 and 5.63)

The primary judge specifically addressed the question of the credibility of Mr Manny and Mr Lardner. The appellants challenge the primary judge’s findings as to credibility, asserting apprehended bias, prejudice and a denial of procedural fairness by her Honour’s findings at [45]-[47] that Mr Lardner was a credible witness.
In so doing, the appellants referred to a passage from her Honour’s ruling in which her Honour refused permission for Mr Manny to cross-examine Mr Lardner after the appellants’ junior counsel had concluded her cross-examination.
Her Honour considered Mr Lardner to be a very reliable witness who presented as an intelligent, sensible, and composed witness.
To the extent the passages relied upon by the appellants are directed at Mr Lardner’s memory, the primary judge specifically dealt with that aspect when considering Mr Lardner’s credibility: Reasons at [45]-[47].
Further, the passages to which the appellants referred in their written submissions demonstrate that the primary judge was acutely aware of the fallibility of memory particularly with the passage of time and took that into account.
As the primary judge had the benefit of seeing and assessing the credit of Mr Lardner, in order to overturn the primary judge’s findings on credibility and those findings where her Honour accepted Mr Lardner’s evidence, the appellants need to show that her Honour’s findings were glaringly improbable or contrary to compelling inferences: Warren v Coombes (1979) 142 CLR 531 at 552 (Gibbs ACJ, Jacobs and Murphy JJ), Fox v Percy [2003] HCA 22; 214 CLR 118 at 128 [29] (Gleeson CJ, Gummow and Kirby JJ), Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at 686-87 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
The appellants have failed to establish that the primary judge’s assessment of Mr Lardner’s credibility, her Honour’s acceptance of Mr Lardner’s evidence and the consequent findings were glaringly improbable or contrary to compelling inferences.
As to Mr Manny’s credibility, her Honour considered that although not satisfied Mr Manny was deliberately dishonest, at the very least his recollection of relevant events a decade ago was fundamentally flawed and that he had reconstructed reality: Reasons [40]. At Reasons [42]-[44], the primary judge identified examples of many contemporaneous documents that compelled the conclusion that Mr Manny’s memory of important events was fundamentally wrong and that he engaged in self-serving reconstruction of reality.
The appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds.
The appellants’ challenge to her Honour’s credibility findings fails. No breach of duty of care (grounds 5.20 – 5.54)

Breach of retainer

The primary judge considered in detail the appellants’ case of negligence. As a part of that process, her Honour identified the scope of the DLL Retainer at paragraphs [360]- [367] of the Reasons. It was in that context that the primary judge found no breach of duty of care. So too, the primary judge found the appellants had failed to establish that DLL had breached its Retainer.
The appellants’ contention that the primary judge erred in not finding a breach of retainer fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice, or that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Breach of fiduciary duty

It is for the same reasons that the primary judge did not err in finding that the appellants had failed to establish a breach of duty of care or breach of retainer that her Honour did not err in finding that the appellants had failed to establish that DLL had breached its fiduciary duty.
The appellants’ contention that the primary judge erred in not finding a breach of fiduciary duty fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice or that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail. Financial difficulties (grounds, 5.29, 5.30, 5.31, 5.32, 5.34, 5.35, 5.44, 5.49 and 5.52)
These grounds raise issues concerning the actions of the ANZ and are relevant to the issue of causation.
It is this topic which is the subject of the first factual stream to which we have referred. Put another way, irrespective of what Mr Lardner was doing for Mr Manny and the JMG in the Family Court, the JMG were faced with significant financial difficulties in 2009 and 2010 such that nothing the respondents did impacted upon what was inevitable, namely, the ANZ enforcing its security against the JMG properties.
The primary judge gave detailed consideration to the financial status of the JMG and what was happening with the various properties: Reasons at [48]-[140], [163]-[184], [195]-[202], [237]-[293], [301]-[321]. It is abundantly clear on the evidence before her Honour that Mr Manny failed to obtain the necessary refinancing to avoid the ANZ from enforcing its security against the JMG properties.
In particular, although there was evidence that the Bank of Queensland had provided an “indicative letter” dated 28 July 2010 and that the appellants contended that letter “was viable and could have led to lending approval”, the primary judge did not accept that contention.
In rejecting that contention, the primary judge engaged in a careful and detailed analysis of the evidence and in particular, the evidence of the appellants’ expert witness, Mr Ringuet, as to whether the Bank of Queensland could have provided refinancing.
The primary judge observed that Mr Ringuet’s report was based on unreliable or inaccurate information and that he had not been provided with valuations undertaken by CBRE between June and August 2010: Reasons at [301]-[321]. Her Honour concluded that Mr Ringuet’s evidence concerning the required LVR established that in 2010, the Bank of Queensland would not have refinanced the JMG given that the then LVR was almost 100% and that would have precluded refinancing by any reputable lender. Further factors militating against a refinancing were Mr Manny’s failure to fully disclose relevant assets and liabilities and history of defaulting on the ANZ Facilities.

Advocate’s immunity (ground 5.16)

This ground contends that the primary judge erred at paragraphs [414] and [448] of the Reasons in finding that advocate’s immunity applied to the conduct of Mr Lardner on 27 August 2010.
In Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 at [2]-[3] (French CJ, Kiefel, Bell, Gageler and Keane JJ) the High Court described advocate’s immunity in the following terms: 2. In D'Orta-Ekenaike v Victoria Legal Aid, this Court held that the advocate's immunity from suit under the common law of Australia in respect of his or her participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in court. In reaching that conclusion, the Court declined to reconsider its earlier decision in Giannarelli v Wraith, in which it was held that the advocate's immunity extends to "work done out of court which leads to a decision affecting the conduct of the case in court." That extension of the scope of the immunity was justified by the view that, as Mason CJ said: "it would be artificial in the extreme to draw the line at the courtroom door." But the immunity was not extended to all work in any way connected to litigation. Mason CJ explained: "Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said: '… the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.'" 3. This statement of the scope of the immunity by Mason CJ was confirmed in D'Orta, in which Gleeson CJ, Gummow, Hayne and Heydon JJ said of the boundary of the immunity: "there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or … 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way.)" (Citations omitted)
The plurality in the High Court stated the conclusion that the immunity did not extend to negligent advice which leads to the settlement of a claim in civil proceedings before continuing at [46]: Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the "intimate connection" between the advocate's work and "the conduct of the case in court" must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an "intimate connection" between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate's work and the client's loss; rather, it is concerned only with work by the advocate that bears upon the judge's determination of the case. See also Kendirjian v Lepore [2017] HCA 13; 259 CLR 275 at [31] (Edelman J).

Mr Lardner’s Bankruptcy (grounds 5.19, 5.53)

Mr Lardner was declared Bankrupt on 7 December 2010 and discharged from Bankruptcy on 8 December 2013. The primary judge found that any claim against Mr Lardner was precluded by s 153(1) of the Bankruptcy Act 1966 (Cth). That section provides: (1) Subject to this section, where a bankrupt is discharged from a bankruptcy, the discharge operates to release him or her from all debts (including secured debts) provable in the bankruptcy, whether or not, in the case of a secured debt, the secured creditor has surrendered his or her security for the benefit of creditors generally.
The appellants submitted that: (a) The alleged wrongful acts/breaches occurred during the period 3 August 2010 until 7 December 2010 when Mr Lardner was practising as a legal practitioner in partnership with Mr Power trading as David Lardner Lawyers; (b) The actual harm occurred on 21 January 2011 or at the earliest on 23 December 2010; (c) Section 14(2) of the Partnership Act 1963 (ACT) operates such that the partnership is liable for the loss to the same extent as the relevant partner; (d) Section 16 of the Partnership Act provides that each partner in the firm is liable jointly with the other partners for everything for which the firm becomes liable under s 14 of the Partnership Act; (e) Mr Lardner was declared bankrupt on 7 December 2010. The appellants refer to s 58(3) of the Bankruptcy Act; (f) The partnership trading as David Lardner Lawyers dissolved upon Mr Lardner becoming declared bankrupt; (g) On 31 January 2011, David Lardner Lawyers Pty Ltd was incorporated with Mr Power as the sole director, secretary and shareholder; (h) Mr Lardner was discharged from bankruptcy on 8 December 2013; (i) The discharge of a bankrupt “does not release from any liability a person who, at the date on which the bankrupt became a bankrupt, was a partner with the bankrupt”: s 153(4) of the Bankruptcy Act; and (j) If leave is required, the appellant seeks leave to commence the proceedings in respect of the provable debt from 26 November 2016.
The appellants also seek a declaration the relevant insurer is liable and obliged to indemnify the partnership known as David Lardner Lawyers.
In their submissions, the appellants conflated the fundamental distinction between a cause of action with liability arising out of a cause of action.
The primary judge noted the appellants’ pleaded causes of action in contract, breach of fiduciary duty and negligence and identified the issue as whether the claims were debts provable in Mr Lardner’s bankruptcy.
Her Honour referred to s 82(1) of the Bankruptcy Act, which sets out those debts which are provable in bankruptcy, and to s 82(2) which provides: (2) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.
The primary judge considered the claim that Mr Lardner had breached the DLL Retainer was clearly a claim by reason of a contract and the claim for a breach of the tortious duty of care arose by reason of the Retainer. Accordingly, Her Honour considered both those claims were precluded by s 153(1) of the Bankruptcy Act.

Limitation period (grounds 5.17-5.18, 5.51, 5.52)

These grounds contend that the primary judge erred in holding that the appellants’ claims were brought outside of the limitation period and that her Honour made this finding contrary to the findings of McWilliam AsJ on 23 May 2018.
The appellants submit that the primary judge erred at paragraph [425] of the Reasons in finding that the loss and damage occurred when the restraining orders were made on 27 August 2010 and 10 October 2010 thereby preventing them from selling their asset portfolio. The appellants submitted before the primary judge that the loss occurred when rent receivers were appointed on 23 December 2010 or receivers and managers appointed on 21 January 2011. In their written submissions on appeal, the appellant submitted that the losses which were incurred materialised as from 23 December 2010.
The respondents point to the appellants’ pleading that the claim for breach of contract, breach of duty of care and breach of fiduciary duty arose from DLL’s alleged default in relation to the orders made on 27 August 2010 and 10 October 2010.
The respondents also pointed to the appellants’ pleading that: (a) Mr Manny suffered loss in the nature of a loss of opportunity of selling his asset portfolio which led to the ANZ appointing receivers thereby causing significant losses to Mr Manny; (b) Each of the corporate appellants suffered loss because of the restraining orders which prevented each company from selling or disposing of the asset portfolio; and (c) Each of the appellants suffered losses of income because of the orders made on 27 August 2010 and 10 October 2010.
The respondents submitted that the appellants’ pleaded causes of action were complete upon the orders of 27 August 2010 and 10 October 2010 being made because it was at that point the appellants suffered the pleaded losses. That is so because those losses constitute harm for the purposes of s 40 of the Wrongs Act or loss or damage at common law. The respondents submitted the suffering of those losses is to be contrasted with the quantification of those losses. We accept that submission.
The primary judge determined the question of when the causes of action first accrued by reference to the definition of “harm” within the meaning of s 40 of the Wrongs Act, or damage at common law. Her Honour held that but for the fact that the restraining orders were made on 27 August 2010, the properties could have been listed for sale on 28 July 2010 with subsequent properties for sale at any time. Accordingly, her Honour held that any loss of opportunity first occurred on 27 August 2010. The primary judge was correct to do so.
Since Mr Manny commenced the proceedings on 25 November 2016 and the corporate plaintiffs were added to the proceedings on April 2019, the actions were commenced after the six-year limitation period prescribed by s 11(1) of the Limitation Act 1985 (ACT) which provides: 11 General (1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims. …

The respondents were not retained to act for the fifth appellant, Landagency Pty Ltd (grounds 5.56-5.57)

The primary judge found at paragraphs [358]-[359] of the Reasons that Landagency was not a party to the Family Court proceedings for which Mr Lardner was retained such that DLL did not act for it.
The appellants submitted that the primary judge erred at paragraph [358] of the Reasons and overruled a finding by McWilliam AsJ that Landagency was a party to the proceedings.
That submission cannot be accepted. The fact that Landagency is a party to these proceedings does not mean that DLL acted for it in the Family Court proceedings.
No error has been demonstrated on the part of the primary judge and accordingly, this ground fails.
Further, the appellants have not demonstrated that the primary judge should have recused herself on the basis of apprehended bias, prejudice nor that her Honour failed to afford procedural fairness to the appellants in relation to any of these grounds. Accordingly, the grounds advanced on these bases also fail.

Other grounds (grounds 5.64 and 5.65)

Ground 5.64 contends errors in fact and law in the primary judge’s summary of conclusions set out in paragraphs [445]-[453] of the Reasons. To that extent, it is a general ground with no detail other than that which appears to be set out in the remaining grounds of appeal.
Ground 5.65 contends that errors or contradictions exist in every paragraph of the judgment.
We have dealt with the substantive grounds above. There is nothing in either of these two grounds that demonstrate error on the part of the primary judge.
These two grounds fail. Conclusion
The appellants have failed to make out any of their grounds of appeal such that the appeal should be dismissed.
There is no reason why the appellants should not pay the respondents’ costs of and incidental to the appeal.
Unless the respondents apply to the Court for an order as to costs on a basis other than party-party costs within seven days of the date judgment was entered, there will be an order that the appellants pay the respondents’ costs of and incidental to the appeal on a party-party basis. McWILLIAM J:
I have had the benefit of reading, in draft form, the judgment of Loukas-Karlsson and O’Sullivan JJ. I agree that the appeal should be dismissed but will express my own reasons for that conclusion.
This case concerned Mr Manny seeking redress on behalf of himself and four companies, collectively known as the Jeff Manny Group (JMG), in negligence, breach of contract and equity (breach of fiduciary duty). The plaintiffs had sued their former solicitors, the defendants, who were retained by both Mr Manny and the JMG from 20 July 2010 until about 24 March 2011. For convenience, the three defendants will be referred to collectively as David Lardner Lawyers or “DLL”.
The plaintiffs were unsuccessful, with Murrell CJ (primary judge) finding that none of the causes of action were made out and entering judgment for the defendants: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 (primary judgment).

Appeal grounds

The notice of appeal was prepared by Mr Manny as a self-represented litigant, acting (with leave) on behalf of the companies. At the front of almost every ground of the unduly prolix and repetitive notice are complaints of apprehended bias and a denial of procedural fairness.
The two primary issues on the appeal are therefore: (1) Whether there was any apprehended bias (Issue 1); and (2) Whether there was any denial of procedural fairness (Issue 2).
However, when the attempt at legalese is stripped back from the document, the appellants’ substantive complaint is that the primary judge erred in rejecting the plaintiffs’ claims in respect of each cause of action.
Given the nature of the formal notice of appeal and the appellants’ lack of legal representation, the respondents in their submissions addressed the material findings on each of the causes of action and whether there was any error in those key findings (Issue 3). I have also dealt with the appeal on that substantive basis.

The facts giving rise to the proceeding

The genesis of the appellants’ complaint before the primary judge was advice given and steps taken in previous divorce proceedings in the Family Court of Australia, as it was then known, between his wife (Ms Manny), himself and the JMG companies (FamCA proceedings). The JMG was part of the FamCA proceedings because Mr Manny was the sole director and shareholder of all the relevant corporate entities, and it collectively held a large property portfolio, all of which were considered to be part of the asset pool to be divided between Mr and Ms Manny. The assets were heavily geared, with loan facilities in the total sum of $14,008,000. Several loan facilities were due to expire on 17 October 2010.
The FamCA proceedings were heard over the course of a year (July 2009 and July 2010). Final orders were made by Faulks DCJ at first instance on 13 July 2010, with minor amendments made pursuant to the slip rule on 14 July 2010, (Final Orders). One of those orders required Mr Manny to pay to Ms Manny the sum of $1,258,000.00 within 14 days, in default of which, the entire property portfolio was to be sold in 3 tranches.
Mr Manny wanted to delay enforcement of the final orders, while hoping the property market improved and the ANZ bank did not foreclose (primary judgment at [333]). On or around 20 July 2010 (on the appellants’ pleaded case), he and the JMG retained DLL, which had not previously been involved in the FamCA proceedings. DLL promptly sought a stay of the order to pay the said sum to Ms Manny, pending an appeal of the final orders made.
Importantly for the issues in dispute in this proceeding, the application prepared by DLL did not seek to restrain the sale of any of the properties. The orders proposed provided for a restraint on Mr Manny and the JMG from borrowing any further money against the properties.
On 27 August 2010, Faulks DCJ stayed the entirety of the orders. That is, Mr Manny did not have to pay Ms Manny the sum ordered within the 14 day timeframe ordered, but nor could he sell any property at all, including a property that the parties (Mr and Ms Manny and the JMG Group) had agreed could be sold (“Unit 2” at an address in Page) and which was in the process of being sold at the time of the hearing on the stay application. That was an outcome that no party had sought or agreed to.
Counsel for the plaintiffs immediately sought an order for the urgent obtaining of the transcript. Faulks DCJ refused that request but did order that the transcript be placed on file when it became available.
The orders made by the Court were plainly problematic for the JMG, with the imminent expiry of its loan facilities. Upon their expiry, the ANZ had made it clear that the loans were required to be repaid. However, the evidence also disclosed that the JMG was separately in default of the loans, all of which were held with the ANZ bank, and had been in default for some time.

Issues before the primary judge

The issues of liability and quantum were split. Only liability was required to be determined by Murrell CJ as the primary judge.
The critical issue for the breach of contract, breach of fiduciary duty and negligence actions concerned the advice given and steps taken by the respondents that led to the orders being made by Faulks DCJ in the FamCA proceedings on 27 August 2010. It was those orders that prevented the property portfolio from being sold by Mr Manny and the JMG. Had a sale process commenced, that may have staved off the subsequent actions taken by the ANZ bank.

Primary Judge’s reasons

The relevant parts of the findings made by the primary judge in respect of whether the respondents breached their duty of care are at [389]-[393] as follows (emphasis added): 389. The plaintiffs claimed that DLL breached their retainer and acted negligently in relation to the [FamCA proceeding orders] made on 27 August 2010 and 10 October 2010 by acting without instructions, failing to provide proper advice, and inviting or acceding to orders that were contrary to the interests of the plaintiffs. 390. These claims are not made out. As stated above: (a) Mr Lardner and Mr McGrath were properly instructed in relation to the stay application on 27 August 2010. Mr McGrath made it clear to Faulks DCJ that the plaintiffs were seeking an order that would not preclude the sale of the JMG properties. When Faulks DCJ expressed frustration at Mr Manny’s continuing, apparently empty assertion that he could obtain refinancing and thereby avoid the forced sale of properties, Mr McGrath and Mr Lardner sought and received specific instructions, which were then conveyed to Faulks DCJ. Mr McGrath opposed a restraining order. When his opposition was overruled, he asked for a qualified restraining order, but that request was also refused. In refusing the plaintiffs’ requests, Faulks DCJ exercised judicial power. (b) Immediately after the restraining order was made on 27 August, Mr Lardner recommended an appeal. Mr Manny accepted this entirely reasonable recommendation. (c) Mr Lardner continued to negotiate to ameliorate the effect of the restraining order, and to settle the appeal and cross-appeal from the final orders. (d) The outcome of the negotiations concerning the restraining order was that, on 10 October 2010, by consent [the FamCA] made orders enabling Mr Manny to sell the two properties that he wished to sell, enabling him to apply to the Court to sell other properties, and expressly permitting him to seek refinancing. 391. There was no negligence in connection with the orders of 27 August 2010 or 10 October 2010. The orders made on 10 October 2010 significantly improved the plaintiffs’ position. 392. In final submissions, Mr Manny and the JMG claimed that Mr Lardner should have advised Mr Manny to appeal order 13 but not order 14 of the final orders. It was submitted that order 14 was a “roadmap” for the orderly sale of properties pursuant to which Mr Manny would have retained some control over sales and avoided foreclosure by ANZ. 393. Reasonable care is to be judged prospectively: Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50; 14 ACTLR 27 at [40]–[41]; McLennan v Clapham [2019] ACTSC 1 (McLennan) at [66]. The plaintiffs’ final submission was the product of very belated hindsight reasoning. It was not clear from the pleadings or particulars. If, in late July 2010, Mr Manny had accepted that ANZ would foreclose, then he may have benefited from retaining some control over sale of the properties by maintaining final order 14. However, at that time, Mr Manny did not accept that ANZ would foreclose. He remained stubbornly committed to retaining his property portfolio. His strategy was to delay the sale of properties. He instructed Mr Lardner accordingly. That is why Mr Manny did not proceed in accordance with final order 14 to list the Group A properties for sale between 14 and 28 July 2010, as required by final order 14.

Applicable principles on appeal

Given that the appellants are self-represented, it is important to explain that the function of a court of appeal is limited to reviewing for error. The appeal is governed by s 37E of the Supreme Court Act 1933 (ACT) (SC Act). It is not a fresh or new hearing, but instead is conducted by reference to the material that was before the court initially, with any further material permitted by leave (not applicable on this appeal). It has therefore been described has having the characteristics of a rehearing. However, error must still be shown before the Court is entitled to intervene: see The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5] and the authorities cited therein.
On such an appeal, the Court’s task involves reviewing the evidence to determine whether the trial judge erred, whether in fact or law. That task has been explained by Bell, Gageler, Nettle and Edelman JJ (with whom Kiefel CJ agreed) in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55], as follows (references omitted): A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. ...
The references cited in the footnotes throughout that passage draw together the statements articulated in seminal cases such as Fox v Percy [2003] HCA 22; 214 CLR 118, Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679, Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392, Warren v Coombes (1979) 142 CLR 531 and Thorne v Kennedy [2017] HCA 49; 263 CLR 85.

Issue 1: Apprehended Bias

Questions of bias or apprehended bias should ordinarily be considered first: see Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [2] and [117]. The judgment of Loukas-Karlsson and O’Sullivan JJ refers to Clifton v Duong [2019] ACTCA 22; 347 FLR 30 at [32], which is to similar effect.

Applicable principles

This Court has previously summarised the following general principles in respect of apprehended bias in Manny v Nissen (No 2) [2023] ACTCA 20; 377 FLR 169 at [31]-[33] relevantly as follows (emphasis added): 31. … The general question to ask when assessing whether there is any substance to a complaint of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question required to be decided: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6], endorsed more recently in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11]. 32. The fair-minded lay observer is assumed to be aware of the nature of the decision and the context in which it was made, as well as having knowledge of the circumstances leading to the decision: Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) at [23]. The test is an objective one: Grassby v The Queen (1989) 168 CLR 1 at 20. 33. The application of the general principle may differ when the decision-maker is not a judicial officer (as was the case here). How the principle is applied generally depends upon the nature of the decision and its statutory context, what is involved in making the decision, and the identity of the decision-maker: Isbester at [23]. This is because the principle is an aspect of wider principles of natural justice, which have a flexible quality, and differ according to the circumstances in which a power is exercised: see Isbester at [23] and the authorities there-cited.
The “double might” test expressed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [6] (being the words emphasised in [31] of the extract above) “serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’”: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 (QYFM) at [37].
The test for apprehended bias involves three analytical steps, as explained by Kiefel CJ and Gageler J in QYFM (at [38]) (footnotes omitted): Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
An apprehension of bias must be firmly established: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, 364 and 371. The above test will not be satisfied by “a vague assertion of suspicion”: McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [106].
The content of the test is variable. This was helpfully explained by McHugh J in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [70] as follows: While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision. …

(a) The primary judge’s allocation of the matter

The first feature of the proceeding about which the appellants complain is the Chief Justice listing the matter before herself. The Chief Justice has a statutory obligation under s 7 of the SC Act to ensure that cases are determined in a way that gets them heard and determined in a timely fashion. The provision is in the following terms: 7 Arrangement of business of court The Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the court and accordingly may, subject to this Act and to such consultation with the judges as is appropriate and practicable, make arrangements as to the judge or judges who is or are to constitute the court in particular matters or classes of matters.
It is an unenviable responsibility. It means that cases may be reallocated depending on not only the nature of any given matter, but also on a whole variety of other factors not known to litigants, such as the workloads carried by other judges, which ebb and flow daily depending on whether matters settle or urgent matters are brought. The fact that the judge who case manages a matter does not then hear the matter may appear to a litigant (here, the appellants) to be unexpected and unexplained. However, the above section makes it clear that the listing of matters is uniquely within the province of the Chief Justice. The mere fact that her Honour allocated a trial of some duration to herself does not reasonably give rise to any concern that she might have done so with any particular view about the parties in the case or its merits. Nor was there any additional factor which would give rise to a concern; for example, that the Chief Justice had previously dealt with Mr Manny in a way that impugned his credit. The listing of a matter before a particular judge does not by itself have any reasonable connection with apprehended bias.

(b) Adverse credit findings in a previous decision of this Court

The next matter is the previous adverse credit findings said to have been made by a different judge (Gray J) in this Court in P and W. There is no reference to those findings in the judgment. There is no reference in the transcript of the trial before the primary judge to any findings in that judgment. There is nothing from which the Court could infer that her Honour even knew of the judgment or the credit findings made.
Even if the primary judge was aware of any comments made by Gray J about Mr Manny, again, that is not of itself sufficient to give rise to apprehended bias. The applicable principle was discussed in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 where the Full Court of the Federal Court considered the circumstances in which irrelevant but prejudicial material placed before a decision-maker could give rise to apprehended bias at [51]-[52] (emphasis added): 51. What is clear is that one way in which there may be a departure from the requirement for impartial decision-making is where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to an apprehension of bias on the basis that it might give rise to an apprehension that the decision-maker will be influenced by that inadmissible fact: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74; and CNY17 at [57], [70], [92], [134]. Whether such material gives rise to apprehended bias will depend upon whether, having regard to the particular context, the material is of a kind that it may affect the decision-maker, including in a subconscious way. 52. Obviously enough, it is not sufficient to demonstrate that there was prejudicial but inadmissible material before the decision-maker. What must be shown is that, having regard to the context, and adopting the hypothetical informed lay observer perspective such a person might conclude that the material might lead to the decision-maker being influenced by that material.
Applying that principle here: (a) It is not sufficient merely to point to prejudicial and irrelevant (inadmissible) material that was before the decision-maker; (b) An assessment will need to be made as to whether the material is of a kind that may affect the decision-maker, including in a subconscious way; and (c) That assessment must have regard to the context of the decision.
Here, there really was nothing identified by way of a finding in a previous judgment that might have been before the primary judge, let alone that such a finding might have affected the primary judge in a subconscious way.
That makes it very difficult to assess the potential for influence in the context of the findings to be made in the present proceedings. The mere fact that a litigant has been before the Court, differently constituted, in litigation conducted years earlier is insufficient to give rise to any concern on the part of the reasonably informed layperson.

The identity of the parties is in a similar category. Mr Lardner was a retired lawyer. The connection between that fact and any concern a lay observer might have in terms of influence on the primary judge was implicitly that because Mr Lardner was a lawyer, that may have pre-disposed the primary judge (that is, a person who was also a lawyer) to accept his version of events over that of Mr Manny, a non-lawyer. That is, the credit findings on reliability might have been made otherwise than on their merits.
It is an inherent part of the business of lawyers that they appear in court, as officers of the court. A professional with expertise and training in the law is likely to have a better understanding of court procedure and of how to present a case. To a person not versed in the protocols and subject matter of the law, a courtroom can appear like an exclusive club where only lawyers feel welcome.
However, this is why the identification of the logical connection and its assessment is important. The fact that a lawyer has a degree of knowledge and expertise does not mean that a lawyer is any more likely to be believed. Indeed, in some cases, a lawyer’s memory may be less reliable because of the number of cases they have done, or the fact that they are not personally invested in the way that a party in the cause itself is.
The hypothetical fair-minded lay observer must be taken to be aware of court processes and the evidence that was given in the trial. The context to the respective credit findings was explained by the primary judge as being corroborated by other material (in particular, the transcripts of the hearing in the Family Court and the legal correspondence).
There was no particular part of the hearing on which the concern was based. A review of the transcript of the hearing before the primary judge does not disclose any comment or conduct that might take the allegation any further than “a vague assertion of suspicion”.
That a lay observer might have a concern about a preference for the evidence of another lawyer giving evidence in the box, simply because they were a lawyer, is not a reasonable apprehension that arises solely from the fact that a more favourable credit finding was made in respect of Mr Lardner.
Similarly, there is no reasonable basis for any apprehension insofar as the appellants have a concern about matters personal to Mr Manny. In that regard, I have taken the reference to “terrorist” to be a flourish, the gist of which is a negative stereotype. To the extent that Mr Manny sought to make anything of his Muslim culture as in some way giving rise to an apprehension that this factor might have influenced the primary judge’s conclusions, the transcript of the hearing does not in any way support a fear that such factor bore upon the primary judge’s findings. From the perspective of a hypothetical informed lay observer, any connection between Mr Manny’s beliefs and the primary judge’s credit findings or ultimate conclusions is neither logical nor reasonable on the evidence before the Court.

(d) The conduct of the trial itself – procedural decisions

It remains under this ground to deal with the refusal of the request for an adjournment and the request to cross-examine Mr Lardner himself, which are both procedural decisions within the hearing itself. The connection, again implied rather than being articulated by the appellants, was that because the procedural decisions made during the hearing were all against Mr Manny and the JMG Group, this might have caused a lay observer sitting in the back of the courtroom to think that the rulings might have been made on a basis other than their merits.
The grounds of appeal commenced with a reference to public confidence and the public interest, asserting that “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased’” citing Metropolitan Properties Co (FGC) Ltd v Lannon (1969) 1 QB 577 at 599, per Lord Denning MR.
I accept that as a matter of human experience, if a series of discretionary procedural decisions within a hearing repeatedly favoured a particular party, that may evoke in the litigant sentiments along the lines of “the judge is always against me”. The connection, as I understood it, was of an apprehension that the outcome of the procedural decisions repeatedly against one party (the appellants) might be a result of the primary judge’s dislike of that party, or some other reason of partiality, rather than an assessment of each of the procedural steps on their merits. Support for that concern may be found in Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66; 374 FLR 1 (Gindy) at [5], where a transcript of the hearing revealed that the primary judge automatically sided with counsel and showed animus towards a party, apprehended bias was established.
Importantly though, the hypothetical lay observer’s perspective does not have the same subjectivity as a litigant and context is important in the assessment of procedural decisions during a trial.
In respect of the first decision, the common law principle on the cross-examination by multiple counsel of witnesses is that regard should be had “to the interests of justice and the need to ensure a fair trial”: Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125; 188 FCR 140 (Canberra Residential) at [47]. Section 41(1)(b) of the Evidence Act 2011 (ACT) also requires the Court to refuse to permit questions that are unduly repetitive.
The context to the decision was that counsel for the appellants had just finished cross-examination of Mr Lardner. Mr Manny then sought to address the court in person. Counsel for the appellant informed the court at first instance that Mr Manny wanted to ask the court for leave in respect of cross-examination.
The primary judge heard from both Senior Counsel for the respondents and Mr Manny as to why he wanted to cross-examine Mr Lardner after his legal representatives. The relevant part of the primary judge’s reasons appears on the transcript as follows: Mr Manny seeks leave to cross-examine Mr Lardner at the conclusion of cross-examination by his counsel, Ms Grotte. The reasons that Mr Manny seeks leave to cross-examine Mr Lardner are these: 1. He, that is Mr Manny, wants to ‘clear his mind’ and explore why things went so wrong in 2010; 2. He believes that he can tap Mr Lardner’s subconscious and extract the truth where counsel was unable to do so; 3. He feels that it is fair that as the accuser he should be permitted to confront the opponent; 4. He says that it is in the interests of justice generally that he be permitted to ask questions for a short period of only several hours. To my mind, none of these reasons provides a basis for granting leave to Mr Manny to cross-examine Mr Lardner. It is relevant by way of background that this court has a duty to facilitate the just, quick and cheap disposal of cases. This case has already occupied a considerable period of time. Indeed, today is day 12 or day 13 of the proceedings. We are at the stage where the plaintiff’s case is closed. The defendants have almost concluded their case. Mr Lardner has been cross-examined over a period of two and a half days by Mr Manny’s counsel, Ms Grotte, who has been ably assisted by Mr Boyd of counsel and instructed by Mr Clarke who has been present in court throughout. Mr Manny himself has been present in court throughout the proceedings, providing ongoing instructions to Mr Clarke. The factual disputes in the case concern whether Mr Manny’s evidence should be accepted on critical factual issues, or whether Mr Lardner’s denial of those matters should be believed. In that respect, Mr Manny is a key witness, and having regard to the balance of probabilities, is probably the key witness in the proceedings.

Issue 2: Was there any denial of procedural fairness?

The procedural decisions discussed above during the trial were the subject of a more general complaint of a denial of procedural fairness. The appellants also complained specifically about the fact that Mr Manny was cross-examined on documents that had not been part of the affidavit evidence and therefore caught him by surprise.
The key principles applicable to considering a denial of procedural fairness are well-established. They may be summarised as follows: (a) The concern of the Court reviewing a complaint about procedural fairness is with procedures rather than with outcomes, and processes rather than conclusions: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [55]; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25]. (b) Procedural fairness must be moulded to the particular circumstances of the case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [25]; Kioa v West (1985) 159 CLR 550 at 611-612 per Brennan J and 585 per Mason J. (c) In assessing what the content of procedural fairness required and whether the obligation was met in a particular case, the court has regard to the legal framework within which the decision is to be made: WZARH at [30]. (d) If there was a breach of any obligation to afford procedural fairness the Court must consider the consequences of that breach. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37].
Here, the obligation was to afford the appellants a fair opportunity to be heard. That included the opportunity to cross-examine witnesses and to be legally represented, and such opportunities were given. Importantly though, the interests of justice do not extend to open-ended opportunities to be heard, or an automatic right to adjourn a trial when their chosen counsel becomes unavailable. The vicissitudes of litigation are such that things do not always go to plan.
Nor does procedural fairness extend to a right to be heard by any particular judicial officer, at least for the reasons set out above in relation to apprehended bias.
Further, the legislative framework in which the Court operates confirms that the “expeditious dispatch of the business of the courts” is a consideration for procedural decisions: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon) at [23]-[24] per French CJ. The Court has an obligation to conduct cases efficiently, not only in the interests of the parties before it, but to those litigants who are waiting to be heard: Aon at [92]-[95], and s 5A(2) of the Court Procedures Act 2004 (ACT).

Issue 3: Did the primary judge otherwise err in the findings made?

As recognised by the respondents in the way they dealt with this appeal, the overriding question is whether the primary judge was correct in the material findings made, being those findings critical to establishing the elements of each cause of action. Fatal to the appellants’ claim was the finding made by the primary judge that there was no breach of duty of care, and therefore no breach of contract or breach of fiduciary duty. It suffices to deal on appeal with whether the primary judge erred in that finding.
The primary judge’s findings on breach (see [207] above) were fundamental because the causes of action in negligence, contract and equity because were interlinked. The scope of a solicitor’s duty of care in negligence is generally prescribed by the terms of the retainer: Hawkins v Clayton (1988) 164 CLR 539 (Hawkins) at 544-545; Badenach v Calvert [2016] HCA 18; 257 CLR 440 at [16]. That point was made by the primary judge at [361] of the reasons. The applicable standard was that of the reasonably skilled experienced family law practitioner: primary judgment at [371] and the authorities there-cited.
Further, the provisions of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) apply to any “claim for damages for harm resulting from negligence, whether the claim is brought in tort, contract, under statute or otherwise”: s 41 of the Wrongs Act.
The reasoning that follows deals with the two aspects of the breach alleged; the first being that DLL acted without instructions and the second being that the advice given breached the said duty.

The retainer

The content of a solicitor’s duty in contract and tort requires the solicitor to exercise reasonable care in the provision of the legal services which are the subject of the retainer: Artistic Builders Pty Ltd v Nash [2010] NSWSC 1442 (Artistic Builders) at [513]; Heydon v NRMA Ltd; Bateman v NRMA Ltd; Morgan v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 at [146]. That calls attention to what services the solicitor was required to provide, which in turn requires consideration of what DLL was retained to do.
There was a factual dispute about that. The appellants’ pleaded case was that DLL was retained to: (a) Represent and advise the appellants in relation to a costs application by Ms Manny in the FamCA proceedings; (b) Advise on an application pursuant to the “slip rule” to correct an extra payment ordered to be paid to Ms Manny; and (c) Make an application to extend the time for the payment to Ms Manny under the final orders in the FamCA proceedings.
The appellants pleaded that DLL had not been instructed to stay the Final Orders at all.
The “slip rule” application was in reference to Mr Manny’s proposed application that the quantum of the judgment sum payable to Ms Manny in the Final Orders, which had been increased to $1,258,000.00 on 13 July 2010, be amended pursuant to the slip rule On 12 July 2010 (before DLL was retained) Mr Manny had applied to reduce the judgment sum to $1,015,000.00 and to make that sum payable over 5 years. The application was rejected by Faulks DCJ.
The appellants argued before the primary judge that they did not instruct DLL to appeal the final orders. It was the appeal that led to the application to stay the orders, and as a consequence of that application, the orders were made prohibiting Mr Manny from selling the property portfolio in an orderly way or otherwise controlling which assets to sell in a depressed property market (following the Global Financial Crisis in 2008).
The factual finding made by the primary judge with respect to the retainer and the advice provided by Mr Lardner was at [365]-[367]: 365. The plaintiffs have not discharged the onus to prove the terms of the retainer as pleaded. 366. Rather, I have found that, on 20 July 2010, Mr Lardner correctly advised Mr Manny that the “slip rule” was inapplicable, that an appeal was the only real option, and that, pending any appeal, Mr Manny should seek a stay of the final orders to prevent enforcement. Mr Manny accepted that advice. 367. Mr Manny instructed DLL to do what was necessary to achieve payment to Ms Manny of a sum less than $1.258M over a longer period than 14 days with a view to salvaging at least part of the JMG property empire, including by filing an appeal and making a stay application, if necessary and appropriate. That was the basis upon which DLL was retained.
The primary judge later made this these two findings at [386]-[387]: 386. I have accepted the evidence of Mr Lardner that he obtained instructions before proceeding with the stay application and appeal. 387. Further, Mr Lardner took no significant step without consulting counsel. He agreed with and followed counsel’s advice.

The hearing of the stay application on 27 August 2010

When the stay of the orders was sought in the FamCA proceedings, counsel instructed by Mr Lardner opposed any restraining order on the sale of the properties on 27 August 2010 (as opposed to a restraint on further borrowing). As the primary judge found, based on clear documentary evidence in the form of the transcript of the FamCA proceedings, the restraint on the sale was imposed by Faulks DCJ over their objection.
The transcript records that at the hearing, the matter was stood down expressly so that counsel for the appellant, Mr McGrath, could obtain instructions from Mr Manny. Following that, His Honour later had the following exchange with Faulks DCJ: HIS HONOUR: … if there is to be a stay it will be on condition that no property is sold. …Do you have instructions about that? MR McGRATH: Well, it’s opposed … HIS HONOUR: Well, you can appeal that too if you’d like.
The transcript confirms the primary judge’s findings. It provides objective corroboration of Mr Lardner’s version of events on what the instructions were. There was accordingly no error in the factual findings made by the primary judge as to what the instructions were at the hearing on 27 August 2010 and what orders were sought.

The consent orders made in October 2010

The legal representatives for Mr Manny and the JMG immediately took steps to appeal the order made on 27 August 2010.
The primary judgment records at [253]-[260] what then occurred as to the variation by Finn J on 10 October 2010 of the orders earlier made by Faulks DCJ by consent, and the expedition of the appeal. The varied consent orders permitted the sale of two properties. The orders also expressly permitted the appellants to seek refinancing.
The appellants argued at first instance that they had not given instructions consenting to the variation. This was dealt with by the primary judge at [258]-[260]. The contemporaneous invoices from DLL indicated the phone calls that DLL had made and that DLL had taken instructions and sent a lengthy email to Mr Manny “reporting and advising” on 9 October 2010 (the day before the orders were made). Again, that was independent documentary evidence corroborating the taking of instructions from the appellants in relation to orders by consent that the primary judge later described (at [391]) as significantly improving the appellants’ position. Such evidence demonstrates that the primary judge’s finding in this regard was open and, in my view on a rehearing, correct.
Findings that DLL acted in accordance with their instructions are only one limb of the appellants’ case. As stated in Artistic Builders at [512] (emphasis added): Similarly, if a client provides instructions to pursue a particular course of action, which is imprudent, the solicitor may, depending on the circumstances, be required to warn and advise the client of the risks of doing so thereby ensuring that the client understands the nature of the risks which the instructions entail. The obligation to do so may be seen as one aspect of a solicitor’s duty to obtain “informed instructions”…
The second limb in relation to breach therefore deals with the advice that was actually given.

Was the advice given by DLL a breach of the solicitor’s retainer or duty of care?

The primary judge dealt with the applicable standard of care and the applicable statutory provisions, being ss 40 to 43 of the Wrongs Act, at [368]-[381]. No complaint is made about that part of the primary judgment.
Her Honour identified the relevant risk of harm at [382]-[383]: 382. In this case, having regard to the terms of the retainer as established by the evidence, the relevant risk of harm was the maintenance and enforcement of the final orders, including by the forced sale of the JMG properties. These risks existed in the context that, to Mr Lardner’s knowledge, ANZ was threatening to foreclose on the JMG properties. 383. The risk of harm was foreseeable, not insignificant, and, in the circumstances, a reasonable solicitor in Mr Lardner’s position would have taken precautions.
No complaint was made about the identification of the risk of harm. The evidence firmly established that as at 20 July 2010 the appellants were in a financially precarious position and were at risk of the ANZ bank foreclosing on the loan facilities after they expired on 17 October 2010.
As to what advice should have been given, or precautions taken (to use the language of the Wrongs Act), the primary judgment at [384] confirmed that they were: (a) To appeal the orders, once it was decided that there were grounds to do so, to guard against the risks that the final orders would be maintained and enforced; and (b) To seek to stay the orders in the meantime, to prevent the orders being enforced before the appeal was heard and determined.
There was no expert evidence that what the respondents did fell short of what a reasonably skilled solicitor, with the knowledge of the financially precarious position of the companies, should have either advised or done. The primary judge found at [384] that these were “the only viable precautions”. I agree with that conclusion but would add that because of the urgency resulting from the imminent foreclosure on the loans, the additional precaution of seeking expedition was required, and that is the course that DLL pursued.
There may have been an additional penumbral duty of care to take positive steps to protect the appellants from economic loss beyond the obligations in a retainer: as to which see Hawkins at 579 per Deane J. This is relevant because a further precaution to take in respect of the risk of ANZ’s threatened foreclosure was to seek to refinance with a different lender.
The primary judge referred to the additional arguable content of the duty of care at [370], and then dealt with it at [394]-[395], stating: 394. When advising on the appropriate course of action, a reasonable solicitor in Mr Lardner’s position would have taken ANZ’s threat of foreclosure on 17 October 2010 into account. Although Mr Lardner was not a financial adviser and was under no duty to provide financial advice, it was appropriate that he give some attention to the plaintiffs’ relationship with ANZ because the FCA final orders and the ANZ facilities related to the same property. 395. In relation to the threatened foreclosure, there was little that Mr Lardner could do beyond repeatedly urging Mr Manny to refinance, introducing him to a financier and maintaining friendly contact with ANZ with a view to discouraging foreclosure. That is what Mr Lardner did.

No breach of fiduciary duty

There is one aspect of the solicitor’s fiduciary duty to the appellants that did not receive specific attention in the judgment of the primary judge, although it was a matter that was discussed during a number of interlocutory applications leading to the substantive hearing and was pleaded. The Second Further Amended Statement of Claim contained the following allegations (emphasis added): Fiduciary Relationship 23. In performance of their retainer the defendants were in a position of trust and confidence in relation to the interests of each of the plaintiffs. 24. The fiduciary duties included: (a) to exercise their power and discretion at all times in the best interests of each of the plaintiffs and not to their detriment. (b) to protect and assert each plaintiff’s economic interest. (c) to ensure that each plaintiff was aware of relevant facts in circumstances affecting their rights. (d) to ensure that each plaintiff was given competent, professional legal advice regarding their rights.
The pleaded breach of fiduciary duties at [33]-[35] of the claim included the following (emphasis added): 33. The defendants failed to exercise their powers and discretions at all times in the interest of each plaintiff and not to their detriment. 34. The defendants failed to protect and assert the economic interest of each plaintiff. 35. The defendants failed to ensure that each plaintiff was aware of the relevant facts and circumstances affecting his or their rights.
The pleading properly raised the issue of whether DLL acted in the best interests of each plaintiff and made each plaintiff aware of the circumstances affecting their rights.
Where a solicitor acts for multiple parties, it is incumbent upon a solicitor to consider whether a conflict between their interests arises, and such a duty is ongoing: see Mantonella Pty Ltd v Thompson [2009] QCA 80; 2 Qd R 524 (Mantonella) at [80]-[84]; Artistic Builders at [511]. The applicable principle was set out in Mantonella at [84], quoting from Clark Boyce v Mouat [1994] 1 AC 428 at 435-436 (emphasis added): There is no general rule of law to the effect that a solicitor should never act for both parties in a transaction where their interests may conflict. Rather is the position that he may act provided that he has obtained the informed consent of both to his acting. Informed consent means consent given in the knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of the other. If the parties are content to proceed upon this basis the solicitor may properly act. In Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606, 636, Upjohn LJ said: “the client is entitled to the services of his solicitor who may not charge more than he is legally entitled to, and must not put himself into a position where he may owe conflicting duties to different clients (see, for example, In re Haslam and Hier- Evans [1902] 1 Ch. 765). But the person entitled to the benefit of the rule may relax it, provided he is of full age and sui juris and fully understands not only what he is doing but also what his legal rights are, and that he is in part surrendering them.”

Conclusion

For these reasons, there was no error in what I perceive to have been the critical findings made by the primary judge determining the outcome of each cause of action. I therefore agree with the orders proposed by Loukas-Karlsson and O’Sullivan JJ.

Orders

For the above reasons, the Court makes the following orders: (a) The appeal is dismissed. (b) The appellants are to pay the respondents’ costs of the appeal. (c) Costs are to be assessed on a party-to-party basis unless the respondents apply to the Court otherwise within seven (7) days of the date judgment is entered.

I certify that the preceding three hundred and twelve [312] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 4 April 2024

Manny v David Lardner Lawyers

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