Martin v Cohen

Commencement and disputed scope of defendant's retainer 78The plaintiff first made contact with the defendant by telephone on 24 January 2004. There were differing accounts between the parties concerning the nature of the plaintiff's subsequent retainer of the defendant. 79On 18 March 2004 the defendant made a sketchy handwritten file note of his telephone conversation with the plaintiff: Exhibit "A". That note, which was not transcribed or explained in detail in the oral evidence, remains necessarily difficult to decipher. It cannot be regarded as being definitive of the matters discussed on that occasion. I do not interpret that note as providing any evidence of instructions for the defendant to pursue a claim against the police or the plaintiff's assailants in relation to the events of 15 February 2003, although in part, it refers to other litigation, and to other legal representation. 80In contrast to the evidence of the plaintiff, the defendant claimed that the conversation he had with the plaintiff on 18 March 2004 related to the plaintiff's legal problems arising from his former de facto relationship with Ms Jones, and not concerning claims against the police and against his assailants: T360.9-50. 81That first conversation between the parties was not definitive because the defendant could not completely follow the plaintiff's conversation due to the plaintiff's apparent agitation at that time, and because he was speaking quickly: Defendant's affidavit sworn 4 April 2014, paragraph 8. 82The defendant did not agree to take instructions from the plaintiff until he had received a signed costs agreement from the plaintiff: Defendant's affidavit sworn 4 April 2014, paragraph 10. 83On 23 March 2004, the defendant wrote a long letter to the plaintiff summarising the factual content of their communications, including the instructions he had received by way of facsimile from the plaintiff: Exhibit "D". That letter also noted the involvement of other lawyers who had been acting in the plaintiff's interests in other litigation. It cannot be concluded from this letter, that at that time, and before the execution of the defendant's costs agreement, that the defendant had in fact been retained by the plaintiff: Exhibit "D", page 2, last paragraph. 84On 30 March 2004 the defendant sent the plaintiff a copy of what he described as his standard costs agreement: Exhibit "C". That agreement was sent to the plaintiff under cover of the defendant's letter of the same date: Exhibit "B". From that time the defendant regarded himself as having been retained by the plaintiff and he then wrote to other solicitors acting for the plaintiff on his property issues concerning caveats: Exhibit "E". 85The written terms of the defendant's retainer were set out in Exhibit "C" as follows: "1. THE WORK The work you require Andrew Cohen (and his staff, where applicable) is as follows: A. Name of person(s) or corporation(s) for whom Andrew Cohen will be acting as solicitor:- NOEL MARTIN. B. Other party(s) likely to be dealt with (if any):- Ms Jones, Mr. Hrobat and their legal representatives (and possibly legal disciplinary bodies). C. Summary of likely work and/or client's requirements:- With respect to Jones' litigation in the District Court, all matters of negotiation, litigation and advices, including briefing counsel from time to time, if applicable and as instructed; preparing evidence, pleadings, documentation, attendances at Court; dealing with valuers; other experts; conducting searches and, potentially, many other things, as advised to you from time to time; plus all matters pertaining to any complaints you may have against your former solicitor." [Emphasis as in the original] 86The reference to Mr Hrobat in the above costs agreement related to the plaintiff's former solicitor, Mr Daniel Hrobat, who had been retained to assist the plaintiff with his de facto relationship litigation involving Ms Jones. 87Over time, voluminous correspondence then flowed between the plaintiff and the defendant, as is evident from the exhibits. It is not necessary to here summarise all of that correspondence other than to say that nowhere in that correspondence is there any indication that the plaintiff had actually taken steps to seek to further expand his initial retainer of the defendant by writing to that effect. 88In particular, there is no evidence to suggest that the defendant had acknowledged that he had been retained to assist the plaintiff to pursue legal redress and compensation from various potential defendants arising from the events of 15 February 2003. 89On this topic, the parties gave very different accounts of their understanding of the defendant's retainer. 90The plaintiff was adamant that the defendant had been retained to provide professional services in relation to the events of 15 February 2003, including claims for damages against his assailants and against the police as previously described. The plaintiff's claim was that the defendant had agreed to act on those matters, including by saying he would "sue anybody": T42.35; T90.40. 91The plaintiff further claimed that the defendant had told him those additional matters would be taken up when the more immediately pressing litigation concerning caveats and the de facto relationship had been completed: T91.49. The plaintiff claimed the defendant had told him those further actions would be taken up after Christmas 2004, when the other litigation was expected to have been completed: T92.5. The plaintiff claimed he had incurred a series of losses because that Christmas 2004 estimate had not been met, and that his subsequent losses had arisen because he had relied on that estimated completion time. Those alleged losses require analysis, as to both quantification by evidence, and remoteness. 92In contrast, the defendant denied the plaintiff's assertions and maintained that his retainer was limited to the de facto relationship issues, to the caveats on the disputed properties, and the plaintiff's personal property allegedly taken by Ms Jones. 93The defendant was adamant that he had never been given instructions to sue the police: T365.47. Furthermore, the defendant said he was never given instructions in respect of a sustainable case against the police: T363.46. The defendant's reference to a sustainable case suggests there was at least some discussion about a potential claim against the police. 94The defendant conceded that he would have taken instructions to sue anyone against whom a reasonable case could be maintained: T363.46. He stated that the plaintiff's claim concerning the events of 15 February 2003 did not fall into that category because he was dubious about the case, especially as the assailants were not identified to him (T361; T362) and because the plaintiff's account as to the number of assailants had changed: T362.21. The defendant's reference to changed instructions also suggests that there was some discussion about the possibility of suing the police. 95In determining the extent and content of the defendant's retainer I must have regard to the oral evidence of the parties and to their written communications. 96It is also relevant to note that until the defendant was fully instructed on the de facto relationship litigation between the plaintiff and Ms Jones, the plaintiff continued his dealings with his then solicitor, Mr Daniel Hrobat: Exhibit "1", Tabs 10 and 11. The extent of Mr Hrobat's retainer was not in evidence in these proceedings. 97In the present proceedings the defendant points to the content of Exhibit "1", Tab 10, a letter sent to the plaintiff by Mr Hrobat on 25 March 2004, to show that the plaintiff had given varying instructions to Mr Hrobat over time. The defendant argued, correctly in my view, that this reflected adversely on the plaintiff's reliability as a witness. Tab 10 of Exhibit "1" included the following extract of the advice from Mr Hrobat to the plaintiff: "... 1. The proceedings which would ensue under the Amended Statement of Claim and which bring into play the Property (Relationships) Act 1984 NSW, do not envisage a claim whereby damages or other pecuniary claims may be pleaded and pursued. The proceedings effectively determine a distribution or apportionment of property in situations where a de-facto relationship has broken down and distribution is dependant on the contributions made by each party during the relationship; 2. As your instructions presently stand, the motive behind the expansion of the claim may be construed as an abuse of process and in this regard we agree with counsel's view that such a proposal could not be entertained on ethical grounds; 3. It is counsel's view, with which we agree, that evidence in proper form, simply does not exist to prove ownership of every single item listed, nor proof that each and every single item was stolen by Jones. In any event to attempt to prove, even if it was possible to include such a claim in the proposed proceedings, would unnecessarily prolong the proceedings and the possibility of having this matter determined as soon as possible would be lost; 4. Your prospects of success in these proceedings are enhanced by going "forward on the basis of a primary claim by which you seek the return of certain real estate currently held in the name of Ms Jones, release from any future claim by Ms Jones over certain real estate held in your name and global orders dealing with an accounting for and return of personal property in the possession of the respective parties but said to be owned by the other." This has been discussed with you on several occasions and to which you agreed; 5. The change in instructions will not only prolong the determination of this matter but will extend the time the caveat remains in place on your property at Willow Tree, which in our view is self-defeating. Additionally, and more damaging to your cause is the fact that your change of instructions may cause us to miss the May 2004 sittings of the East Maitland District Court; 6. The probability of actually recovering the list of items or most of them is, as you have recognized on several occasions, remote and therefore self-defeating. 7. Costs would be substantially increased. We would add that we agree entirely with the observations of counsel in his above letter. Moreover, you have placed us in the unenviable position whereby if you decide to ignore or decide not to accept our advice in this matter we will have to consider our position as to whether, on ethical grounds, we are able to continue to act for you in this matter. This matter, as you are aware, is listed for a further status conference before the District Court at Scone on Friday 26 March 2004, at 9.30am. We have alerted Mr Michael O'Connor to be available to appear on your behalf as our agent. It will now be very difficult if near impossible to have the matter listed in the East Maitland Court sittings in May, however we may be able to request the Registrar to appoint a further short time- table to enable us to file the necessary documents, for the defendant to reply and still have sufficient time to be listed for hearing in May. This we will only be able to confirm after tomorrow's status conference. If you do not wish us to proceed on that basis, please advise us in order that we may inform Mr O'Connor." 98It is plain from the above account that there were significant delays encountered by the plaintiff in completing the de facto relationship litigation because of events that occurred before the defendant had been engaged: Exhibit "1", Tab 3. This included the compounding effect of the stated inaccuracies and changes within the instructions the plaintiff had given at various times: Exhibit "1", Tab 4. 99The plaintiff sent the defendant voluminous documentation by facsimile and by post at irregular intervals over the course of some weeks. The plaintiff told the defendant that he was giving the defendant those documents but he also told the defendant not all of them needed to be read, and he identified the files he wanted read, leaving the others to be held in case they became necessary: Defendant's affidavit sworn 4 April 2014, paragraphs 12 - 13. 100Significantly on 30 April 2004, following the receipt of voluminous documentation from the plaintiff, the defendant wrote the following indication of his position to the plaintiff on the question of his retainer: "7. Frankly, the material you have supplied is appreciated but a bit too much as it was necessary for me to read nearly all of it and decide which material was relevant to the case against Jones, which material was relevant to your forthcoming complaint against Mr. Hrobat and which material I could ignore, either for the time being or permanently." 101It is plain from the above statement that the plaintiff ought to have realised that the defendant was only dealing with the plaintiff's existing de facto related litigation with Ms Jones, and possibly some issues concerning one of the plaintiff's former solicitors, but not the wider issues the plaintiff was contemplating concerning a claim of compensation arising from the events of 15 February 2003, as was asserted by the plaintiff. 102In fact the plaintiff's correspondence to the defendant focussed upon property and accounting issues concerning the de facto relationship claim: Exhibit "1", Tabs 16 and 18. That focus continued throughout, from May 2004 and until the termination of the Supreme Court proceedings between the plaintiff and Ms Jones in 2006: Exhibits "AE"; "1", Tab 13; "AAF"; "AAC"; "F"; "K"; "G"; "Z"; "W"; "Q"; "AA"; "AL"; "AZ"; "1", Tab 7; "AM"; "AN"; "AO"; "1", Tab 8; "AY"; "AF"; "1", Tab 18; "M"; "N". 103The documentary exhibits show that some of the defendant's correspondence to the plaintiff was responsive to correspondence the plaintiff had sent to him. The plaintiff tendered the defendant's correspondence addressing issues the plaintiff had communicated to the defendant. However, some of the plaintiff's correspondence to the defendant, which generated that correspondence, was not in evidence. Examples of this are Exhibits "D" and "AJ". This adds a layer of difficulty to construing the relationship between the parties in terms of the scope of the work agreed to be undertaken by the defendant on the plaintiff's behalf. 104On 30 April 2004 following a conference with the plaintiff, the defendant, and his counsel Ms Cohen, the plaintiff gave instructions which resulted in Ms Cohen drafting an amended District Court Statement of Claim in the plaintiff's de facto relationship litigation. In those instructions, the plaintiff agreed to abandon his claim for his chattels allegedly stolen by Ms Jones. He took that pragmatic position on advice that included considerations of the affordability of the litigation where many individual items were involved and pragmatic considerations as to whether, realistically, those goods still existed: Defendant's Affidavit sworn 4 April 2014, paragraph 22. 105At that time, the focus of the parties was on the properties in issue, and the need to obtain removal of the caveats in force in respect of that property. 106At around that time Ms Jones had tried to sell the property in question, the purchaser's solicitor pursued a summons for specific performance in the Supreme Court against Ms Jones and the plaintiff, and also seeking the removal of the caveat on the property and for transfer. The plaintiff had crossclaimed against Ms Jones in those proceedings. The defendant acted for the plaintiff in those proceedings, as did Ms Cohen. 107On 27 May 2004, in those proceedings, White J ordered the caveat to be removed. A costs order was made against Ms Jones and the plaintiff, but the plaintiff obtained an order that Ms Jones indemnify him in respect of those costs: Defendant's affidavit sworn 4 April 2014, paragraphs 30 and 31. 108In the meantime, the plaintiff was experiencing financial difficulties and on 15 June 2004, he was unable to complete the related conveyancing transaction. He wrote to the defendant to advise that he was now subject to a binding penalty clause imposing a penalty of $4931.82 per day: Exhibit "AAD". At that time the plaintiff was anxious to settle to avoid incurring losses, and indicated this position to the defendant: Exhibit "AAF". Without co-operation from Ms Jones, the defendant could not have done much for the plaintiff along those lines. 109These circumstances will be further examined in connection with my consideration and findings on Issue 1 concerning the scope of the retainer of the defendant and Issue 6 concerning the assessment of damages.

Rent claim 110The plaintiff complains that the defendant had failed to pursue a claim against Ms Jones for non-payment of rent on the premises at 31 Learmont Street, Willow Tree, which she occupied as a result of the purchase of that property with his funds. There is evidence that Ms Jones may have let part of the premises for $80 per week. The plaintiff wanted Ms Jones to account for those funds. 111The difficulty for the plaintiff with that claim is that the premises in question comprised part of the divisible property in dispute in the de facto relationship proceedings. Furthermore, the sole registered owner of those premises in the period comprising the argued claim for rent was Ms Jones. As such, the plaintiff's argued claim for rent in these proceedings could not have been maintained by the plaintiff as against the registered owner of the property, Ms Jones. 112Noting that the defendant had briefed counsel, his sister, Ms Cohen, to draft an amended statement of claim on behalf of the plaintiff, neither party asked Ms Cohen any questions about the rent issue in these proceedings. Furthermore, the plaintiff did not materially cross-examine the defendant on that specific topic.

Delays in previous District Court litigation 113In the course of the defendant's representation of the plaintiff's de facto relationship proceedings there was acknowledged delay and consequently, the plaintiff's time expectations for the completion of the litigation had not been met. This appeared to be in part due to shortcomings in the communications from another solicitor, a Mr Curran, whom the defendant had engaged to act as his agent to appear at a call-over, and other matters: Exhibit "AA"; 22 November 2004. 114Whilst there were issues of delay in progressing the de facto relationship proceedings, other delays had also been incurred because the defendant had not been fully funded by the plaintiff to undertake work on his behalf: Exhibit "AG"; "L"; "X"; "Y".

Claimed delay over costs assessment 115There was also a delay in the plaintiff obtaining the benefit of a judgment for costs in the amount of $11,145.11 in the earlier specific performance and removal of caveat proceedings before White J. Those proceedings related to the plaintiff's application to remove caveats lodged by Ms Jones following the issuing of lapsing notices. 116The plaintiff had apparently set some store by a strategy to secure an early judgment for indemnity costs against Ms Jones. His goal was to try and have her declared bankrupt with the anticipated result that an appointed trustee in bankruptcy, or ITSA, may not have permitted her to proceed with the existing litigation in the District Court concerning the de facto relationship issues. 117As it turned out, that strategy failed for a number of reasons. 118First, it was not part of the defendant's retainer agreement that he be required to prepare a bill of costs for the caveat proceedings, and the plaintiff had declined to pay for external costs consultants to be engaged to undertake that task: Exhibit "C", page 5; T310.5 - T310.18. Delay also occurred whilst the plaintiff and the defendant negotiated a mutually acceptable way forward on that necessary step of preparing a bill of costs for assessment: T380.27; T381.16; T381.47; T382.5; T404.15. 119Secondly, in September 2004, after the defendant had relented in response to pressure from the plaintiff, he agreed to prepare the bill himself. He eventually agreed to have it done by the end of 2004, but not earlier because he had other priorities. Although the defendant honoured his commitment in that regard and completed his bill by 23 December 2004 (Exhibit "AAO"), further delay then occurred over the ensuing four months, during which time, inexplicably, the plaintiff failed to provide the defendant with the relatively small filing fee that was required to enable a costs assessment to proceed. Those circumstances compounded any delay incurred to that point. 120Thirdly, during the assessment process, there were further unforseen compounding delays that occurred whilst requisitions raised by the Costs Assessor were given the required attention. These included delays encountered by the defendant in obtaining the precise terms of the orders made by White J in the Supreme Court caveat removal proceedings. 121Fourthly, there was also a delay in enforcing a Certificate of Determination of assessed costs for those proceedings. A clerical error had become incorporated into the title documents in the costs assessment. This factor had caused some months of delay whilst the defendant strove to overcome that difficulty by unsuccessfully approaching the Costs Assessor (who had by then retired) and the Supreme Court costs assessment officials, in his repeated attempts to rectify the problem. 122This latter delay in obtaining a judgment for costs against Ms Jones occurred because the Certificate of Determination of the Costs Assessor had been erroneously issued in the name of Noel James Martin and not Noel Charles Martin, which was the plaintiff's actual full name. The Costs Assessor was unable to assist as he had retired. 123It was not until December 2005 that an innovative solution to that problem had been found by the defendant. This was by registering the judgment as being in favour of "Noel James Martin also known as Noel Charles Martin" on 23 December 2005. The enforcement problem was therefore overcome: Exhibits "P"; "R"; "T"; "U"; "V". 124This latter component of delay occurred for several reasons. The defendant's agreement to undertake the preparation of the plaintiff's bill of costs for assessment also included an agreement that another bill of costs that had been prepared for the plaintiff by other solicitors who had acted for him would be used by the defendant as a template or precedent, as he had no experience in such matters. 125When that precedent came into the hands of the defendant, he did not notice that the plaintiff's middle name had been incorrectly described as being James instead of Charles. The error was replicated in the plaintiff's costs assessment documentation: Exhibit "H". The defendant freely acknowledged this error: T373.7. The question of whether anything turns on this will be examined in the considerations of Issue 4. 126Significantly, that error persisted with the knowledge of the plaintiff. Despite the fact the defendant had forwarded the document incorporating the erroneous name to the plaintiff for comment, the plaintiff had failed to draw the defendant's attention to the detail of the clerical error. I accept the defendant's evidence in that regard, where he stated that although the plaintiff had queried the document, the plaintiff had nevertheless failed to respond to the defendant's subsequent enquiry as to the nature of the problem that was apparent to the plaintiff, but not to the defendant: T313.18 - T313.30. The plaintiff's failure to respond was not explained. 127Those events inevitably delayed the issue of any planned bankruptcy notice to Ms Jones for the non-payment of the assessed costs. 128The plaintiff claimed the resultant delay in him being able to enforce a costs assessment against Ms Jones had caused him to suffer considerable financial loss. The defendant's position is that those claimed losses were remote, and otherwise not reliably quantified by the plaintiff.

Resolution of Supreme Court Equity proceedings 129The de facto relationship litigation between the plaintiff and Ms Jones that had been commenced in the District Court at Scone was transferred to the Equity Division of the Supreme Court. 130In those proceedings, the plaintiff sought equitable relief in the alternative to orders pursuant to the Property Relationships Act 1984, relating to three properties registered in the name of Ms Jones: Exhibit "AAE" page 1.30. 131The proceedings had to be transferred to the Supreme Court because of concerns over limits on the equitable jurisdiction of the District Court, and because of problems that were said to be related to previous variations and inaccuracies in the plaintiff's instructions given to his solicitors, both before and during the defendant's retainer: T316 - T317; T319 - T320. 132The defendant had prepared the Supreme Court proceedings on the plaintiff's instructions. He had briefed his sister, Ms Cohen, as counsel for the plaintiff, and he was relying upon her to appear at the hearing. 133In the lead-up to the hearing, understandably, Ms Cohen indicated that she required security for the payment of her fees. Her requirements for securing her fees could not be met, and therefore, on 6 February 2006, she withdrew from the proceedings. This occurred seven days before the hearing was due to commence. Although Ms Cohen had expressed concern over her fees as far back as October 2005 (Exhibit "X") the defendant was completely surprised by her stance of requesting security. Despite his professional and personal entreaties, the defendant was unable to alter her stance in that regard. Those circumstances caused a lasting professional rift between the defendant and Ms Cohen: T376.50. 134In the circumstances, the defendant felt unable to obtain the services of other counsel, especially where it was plain that there were no satisfactory arrangements that could be made to secure counsel's fees. The plaintiff had not funded the defendant for the litigation. In those circumstances, after the defendant properly disclosed to the plaintiff his own limitations in his experience of conducting such proceedings, the plaintiff nevertheless instructed the defendant to appear for him as his advocate in the Supreme Court proceedings in the absence of Ms Cohen: T323.6; Defendant's affidavit sworn 4 April 2014, paragraph 62. 135Although the plaintiff was concerned about the withdrawal of counsel, he obviously agreed that the defendant should continue despite that withdrawal, and the plaintiff attended the defendant's office on 8 February 2006 to assist in the preparation: Exhibit "AB". 136The defendant's preparation then continued, including keeping the plaintiff informed of progress and developments, also including reports of conversations with Ms Jones, and the effect of recent directions from the trial judge: Exhibit "AC". 137The defendant then undertook intensive preparation for the hearing of the Supreme Court proceedings. This is also evident from the skeleton argument he had prepared in order to advance the plaintiff's case (Exhibit "AP") and from the defendant's notes to file: Exhibit "AD". 138Those proceedings went to a hearing before Rein J between 13 and 17 February 2006, at which time a compromise settlement was formalised by orders that were made by consent. 139The transcript of those proceedings, comprising 228 pages, was in evidence in these proceedings: Exhibit "AAE". The plaintiff and Ms Jones gave conflicting evidence on the issues for determination in those proceedings. 140The Equity proceedings were complicated by the disputed positions taken by the parties to that litigation as to the duration of time over which the de facto relationship had subsisted between them, and other matters. In those proceedings, the plaintiff gave evidence that it was his apprehension that Ms Jones was without assets, and that she would be unable to meet any costs, and by implication, damages, that might be awarded against her: Exhibit "AAE" pages 9.25; 42.44; 75.28. 141In those proceedings the plaintiff was prepared to abandon his claim in respect of the chattels he alleged had been taken by Ms Jones: Exhibit "AAE" page 18.23; Exhibit "AP". Furthermore, the plaintiff gave evidence in those proceedings that in his opinion there was no possibility of him recovering the items comprising his property that he claimed had been wrongfully taken by Ms Jones: Exhibit "AAE" page 75.21. 142On the fourth day of the hearing, after evidence had been given by the plaintiff and Ms Jones, Rein J reiterated his encouragement to the parties to explore the possibility of settlement: Exhibit "AAE" page 219. This was in the face of credit attacks, allegations of forged documents, questions over the probity of documents provided to Centrelink, and a range of competing and disputed factual positions. 143On 16 February 2003, the parties took up the suggestion by Rein J to pursue settlement discussions. Some time was then given to the parties, which resulted in them reaching an agreement to resolve those proceedings: Exhibit "AAE" pages 219 to 228. The fact that a settlement in principle was reached was communicated to the Court. 144Until that agreement had been reached, the areas of dispute in those proceedings had encompassed personal property, real property, the caveats that had been lodged on real property, some liability for state taxes, and legal costs. 145The consent orders were prepared overnight: T226.11. These consent orders were then made by Rein J on 17 February 2006. This had the effect of terminating the Equity proceedings. 146The effect of the settlement was that apart from providing mutual releases, the plaintiff had secured the transfer of the property he was claiming from Ms Jones so that he became the sole owner. 147In return, the plaintiff released Ms Jones from certain claims, including indemnity costs orders made against her in Supreme Court proceedings numbered 3174 of 2004, and in costs proceedings numbered 2005/91338, and he withdrew his bankruptcy notice against Ms Jones being No NN 131/06. He also released Ms Jones from liability under a judgment he had obtained against her at Manly Local Court in proceedings 1248/05, and he also agreed to arrange for the dismissal of the proceedings numbered NSD 167/2006 that had been instituted in the Federal Court. 148In addition to transferring the property in contention to the plaintiff, Ms Jones also released the plaintiff from his liability under a judgment she had obtained against him in the CTTT in 2003. Finally, each party agreed to pay their own costs of the settled proceedings. 149The unchallenged evidence of the defendant's practice assistant Ms Hilder was that on either the Thursday or the Friday of the hearing of the Supreme Court proceedings (which I infer would have been at the time when the case was settled either in principle if not in fact) the plaintiff and Miss Findlay were seen by her to have been smiling and laughing, and in apparent high spirits: Affidavit of Ms Hilder sworn 4 April 2014, paragraph 12. 150That unchallenged factual description requires consideration and reconciliation with the evidence of the plaintiff and Miss Findlay to the effect that the plaintiff was allegedly coerced into settling the Supreme Court proceedings. This is a matter to which I shall return in the consideration of Issue 2.

Post-settlement events 151After the settlement orders were made in the Equity proceedings it appears that the plaintiff discovered that Ms Jones had taken goods and fittings from the property in question and which the plaintiff claimed should not have been taken, as this was contrary to the settlement orders. 152These circumstances led to further correspondence and communication from the plaintiff to the defendant to see what could be done about those circumstances as the plaintiff had suffered losses as a result of such removal of items. 153At some stage after the settlement, on a date which does not appear from the evidence, the plaintiff withdrew his instructions from the defendant in respect of the proposed sale of the properties the subject of the Supreme Court Equity litigation: Exhibit "AR", page 2. 154At that time, the defendant raised questions concerning the payment of his outstanding fees as was provided by the deed entered into between the parties. 155Between 12 April 2006 and 19 April 2006 the defendant attended to correspondence with the plaintiff's other solicitor, Dr Michael O'Connor of the firm of solicitors Bamford Marcellos O'Connor concerning the sale of the properties that were the subject of the Equity proceedings: Exhibits "AQ" and "AR". 156Subsequently, according to Exhibit "AW", on 15 May 2006, the plaintiff wrote to the defendant in the following terse terms: "Dear Andrew, During Supreme Court proceedings, 13th 17th February 2006, during a break, you produced a hand written agreement for me to sign, stating that I had three minutes to agree and sign or you were not going back into court. That agreement was signed, dated and the time noted on the document. I require a copy of that document immediately. I suppose these issues we are addressing are what you term "sweeping up behind my big sister", to which you refer. I would however like to see your sweeping up brought to a close without having to do a "full house clean" myself. Your Truly Noel Martin" [Emphasised text as in the Exhibit]. 157That letter from the plaintiff to the defendant was the forerunner to the current litigation. 158The full course of subsequent correspondence has not been tendered but it appears that on 24 May 2006 the defendant was still trying to resolve the question of some residual funds of the plaintiff that remained in his trust account and he wrote to the plaintiff in that regard: Exhibit "AS". 159The plaintiff apparently sent a facsimile letter to the defendant on 30 May 2006 of unknown content. The defendant's reply dated 31 May 2006 indicated he was still trying to effect registration of property transfers but needed the address of Ms Jones: Exhibit "AT". 160On 2 June 2006, the defendant wrote to the plaintiff seeking two cheques for $77.25 each to enable him to proceed with the registration of the property transfers: Exhibit "AU". That date also signalled the final distribution by the defendant of funds due to the plaintiff. 161On 7 August 2006, the defendant wrote to the plaintiff noting, amongst other things, that the plaintiff did not intend to pay him his outstanding account, and that account was apparently to be the subject of a solicitor and client costs assessment: Exhibit "AAR". The ensuing bill of costs for that assessment was comprehensive: Exhibit "O"; Exhibit "AAA". 162The last professional communication from the defendant to the plaintiff was a postscript to the above letter informing the plaintiff that the Office of State Revenue had advised the defendant that it was contemplating bankruptcy proceedings against the plaintiff for non-payment of fees that were due under the settlement of the Supreme Court Equity proceedings: Exhibit "AAR". 163In the present proceedings the plaintiff now complains that the defendant had improperly coerced him into a settlement of the Supreme Court proceedings. He further alleges that the settlement occurred in circumstances where his case had not been properly prepared by the defendant, and that the defendant had an improper motive in settling the case on that account. The plaintiff relied upon the evidence of Miss Findlay to the extent that it could corroborate his position concerning such allegations. 164The defendant vehemently rejected all allegations of coercion or impropriety on his part. These matters will be the subject of the consideration of Issue 2 and Issue 4.

Issue 1 - Relevant scope of the defendant's retainer 165For the reasons that follow, I am not persuaded that the plaintiff's retainer of the defendant as his solicitor went beyond the cited text in the defendant's cost agreement comprising Exhibit "C" which I have already cited at paragraph [85] above. 166First, I am not convinced of the plaintiff's evidence to the effect that he instructed the defendant to pursue civil claims for damages arising from the events of 15 February 2003. This is because such instructions are not reflected in the contemporaneous correspondence that has passed between the parties. On the balance of probabilities, I find that whilst the plaintiff believes he gave such instructions, I consider the defendant's denial of that proposition is more likely to be the correct account of events. 167Secondly, given the defendant's stated attitude to adhering to the requirements of the cost agreement regime required by the Legal Profession Act 2004, I consider it most unlikely that the defendant would have regarded his costs agreement with the plaintiff in March 2004 as set out in Exhibit "C", as being an all-encompassing retainer for a disparate range of litigation matters. 168Thirdly, given the particularity and the thoroughness with which the plaintiff has shown to have been his method of attending to matters of detail, his failure to clarify or to seek to extend the terms of Section B of the costs agreement comprising Exhibit "C" either orally or in writing, is a telling factor against the construction of the retainer argument that he now seeks should prevail. 169In coming to those views, I have not overlooked the evidence of Miss Findlay on the subject of the scope of the defendant's retainer. However, she was hazy or vague on some of the specific details of the interchanges that passed between the plaintiff and the defendant on the scope of the retainer concerning a proposed action against the police: T274 - T276; T293.28. 170However, Miss Findlay was specific on one detail. She claimed that on an uncertain date she had been present when the defendant had said to the plaintiff the he would tell the plaintiff when he thought it was time to sue the police: T275.49 - T276.3. She said she could recall a conversation in the defendant's office about the police: T293.15 - T293.30. Her evidence was that the defendant said something like "I'll deal with the police when I've dealt with the Jones matter. I'll tell you when it is time to sue the police": T294.10 - T294.14. 171The defendant denied that a conversation had taken place in those terms. 172The defendant stated that at no time did he consider he had instructions to sue the persons who assaulted the plaintiff on 15 March 2003; or to sue the police in relation to their involvement in the circumstances of that day: Defendant's affidavit sworn 4 April 2014, paragraphs 36 and 38. 173In support of that position, it is noteworthy that in his letter to the defendant dated 26 May 2004, the plaintiff made no mention of needing advice or assistance with a claim against his assailants and the police. 174This is significant because he had represented himself in respect of carrying forward his complaints against the police. 175The plaintiff's letter dated 28 April 2004 is also noteworthy because it listed the persons against whom he wanted redress. Those persons included a barrister who had previously acted against his interests, some property purchasers who were seeking specific performance against him, Ms Jones, and four other solicitors. That letter had a stern tone of grievance, yet in it, the plaintiff made no mention of any proposed actions against the police or the plaintiff's assailants: Exhibit "AC3" exhibited to the defendant's affidavit sworn 4 April 2014, page 45. 176Also of significance amongst the plaintiff's written communications is his letter to the defendant dated 3 January 2005 in which he listed his request for a plan of action against named persons, those being Ms Jones and two solicitors. No mention was made of any action arising from events of 15 February 2003: Exhibit "AO", page 2. 177In weighing the competing accounts on the retainer issue, I consider that Miss Findlay's evidence should be discounted and should not be accepted as probative corroboration of the plaintiff's assertions on the retainer issue. This is because of her alignment to the plaintiff's cause as already identified, and because of the vagueness of her evidence on this point, which, in combination with the credit findings I have already identified, makes this evidence unreliable. 178I consider that on the balance of probabilities the defendant's account of his retainer is more likely to be correct. I therefore reject the evidence of the plaintiff and Miss Findlay that asserted the defendant's retainer included instructions to bring a civil claim against the police and other defendants arising from the events of 15 February 2003. 179The unchallenged affidavit of Ms Hilder sworn 4 April 2014 stated that in the course of her duties in the management of the plaintiff's file for the defendant, her understanding was that the case was about a de facto relationship dispute involving Ms Jones. She had no recollection of opening a file or viewing correspondence that dealt with any claim by the plaintiff relating to the New South Wales Police: Affidavit of Ms Hilder sworn 4 April 2014, paragraph 6. I consider that if the defendant had been given instructions to pursue such a matter, Ms Hilder would have been likely to have known about it. 180I infer from the evidence of Ms Hilder that the defendant had not opened up a case file for the plaintiff in relation to that matter. This leaves open the question of whether the defendant had either refused to do so, or had failed to do so. I do not accept the plaintiff's evidence or argument to the effect that the defendant failed to do so. 181I accept the defendant's evidence that he did not do so because be did not consider the plaintiff to have had a sustainable case in that regard, and because he had no instructions to do so: T365.47. 182It was the defendant who would have been required to sign a certificate of arguable merit pursuant to s 347 of the Legal Profession Act 2004. He was not questioned on the basis of his belief that the plaintiff had no sustainable case. The elements of what constituted available evidence in support of an arguable case against the police, Ms Jones, and his assailants, were not put to the defendant in crossexamination. 183I consider that the plaintiff's evidence to the contrary of the defendant's position as outlined above is based on a misapprehension of the events, which he has conveniently reconstructed to advantage himself in this case. 184In coming to those views I have not overlooked the fact that the plaintiff had, in the lead-up to the Supreme Court Equity proceedings, from time to time, left considerable quantities of paper files with the defendant. 185The defendant believed, for the reasons he has stated, that he was given those papers for safekeeping and that he did not see his role as requiring him to analyse all those papers for relevance to the tasks on which he had been professionally engaged. He said, and I accept, that he was relying on the plaintiff to identify the relevant material. In that regard, it is clear that the plaintiff had costs considerations in mind when asking the defendant to look at his papers: T367.8. I consider the defendant's explanation in that regard to be a reasonable and acceptable one in the circumstances of his professional dealings with the plaintiff. 186On the evidence I therefore find that the plaintiff's engagement of the defendant as his new solicitor in March 2004, and subsequently, was limited to the defendant carrying out legal work in relation to the plaintiff's de facto relationship issues, and the related property issues. I find that this retainer did not include any request or instructions to undertake legal work concerning the plaintiff's potential claims for civil damages against various parties, including his assailants and the police, arising out of the events at his home on 15 February 2003. The plaintiff's reliance on Exhibit "AAS" (Solicitors Rule 1) has to be viewed in that light. 187Matters concerning the duty of care the defendant owed to the plaintiff, its scope, and whether there was any breach of that duty, have to be evaluated in the light of these findings.

Issue 2 - Alleged coercion to settle 188The plaintiff claimed he had been unduly pressured and coerced into settling the Supreme Court proceedings before Rein J on terms with which he was not happy. 189The plaintiff said that this had occurred because the defendant had allegedly threatened to withdraw his representation if the available terms of settlement were not accepted by the plaintiff "within three minutes": T131.35. The plaintiff claimed that in the circumstances he felt he had no choice but to settle those proceedings although he "thought this wrong, dead set... wrong...": T131.42 - T132.20. 190In contrast, the defendant denied those assertions. The defendant denied that he had presented the plaintiff with the claimed ultimatum to settle. 191Instead the defendant maintained that he had acted properly in his role representing the plaintiff in that litigation. He said that before he had prepared his written instructions for the plaintiff to sign, he had already received those settlement instructions from the plaintiff: T323.40; T324.1 - T324.24. This was well before the alleged clipboard incident described by the plaintiff and Miss Findlay. 192The defendant's account of those events and his account of the relevant conversation with the plaintiff (T324.1 - T324.24), was as follows: "... "So now that we've got the settlement worked out and you're happy - you're not happy with it because I know she's not going to gaol, but otherwise you're getting everything you want. I think we better reduce this to writing. I'm going to try to do it as quickly as I can and I want to go through it with you when I'm finished." So I sat down with my big texta colour, because it was a dark room, it was really not well lit, and so what I did was I got my texta colour out and I drew it in big writing and then once I'd done it I said, "Okay, come on Noel, we'll go through it and make sure that we haven't missed anything", and we went through it, and I said: "The judge is waiting, I need to tell him that we've settled because we did say we'd be back by now and we're still here, and so we're in a bit of a hurry but I want to go through with it beforehand, and we've interrupted the proceedings this long. Until you're absolutely sure that it's right, we can't go and tell the judge you've settled." And then when it absolutely was - we'd gone through it and that took I'd say about five or ten minutes to write and about three minutes to go through it, and then I said, "And if you're absolutely sure about that will you sign it there," and he signed it. And we went back into the Court and said, "Your Honour", I think I said something like, "Good news, I think we've settled your Honour", and he beamed at us and that's about the way it happened." 193The defendant maintained that the settlement of the Equity proceedings was in line with the negotiations with Ms Jones that had already been underway for several days, although it was true that in the earlier stages of the negotiations, the plaintiff had been querying why he should be required to pay the expenses incurred by Ms Jones to the Office of State Revenue: T324.40. 194The defendant said that until the settlement had been reached, the plaintiff seemed to have been fixated upon seeing Ms Jones gaoled for her conduct towards him: T325.8; Defendant's affidavit sworn 4 April 2014, paragraphs 61 and 71. 195The defendant said that when he had received what he believed to be Ms Jones' best offer in the course of settlement negotiations, he had advised the plaintiff to accept that offer as he thought it was as good as he would get from the litigation, and that he ought to accept it before Ms Jones changed her mind. He said that it was at that point that the terms of the settlement agreement were then reduced to writing: T325.12. 196The defendant's evidence was that when the proceedings had resolved and the formal orders had been made, the plaintiff and Miss Findlay had embraced him and had kissed him on the cheek whilst crying and smiling. In that conversation the defendant said that the plaintiff had told him, "This is the most wonderful day of our lives": Defendant's affidavit sworn 4 April 2014, paragraph 75. This was denied by the plaintiff and by Miss Findlay. 197In that same conversation the plaintiff promised to pay the defendant within 21 days the first instalment of $20,000 owing for fees as the defendant had indicated he would cap his fees at $100,000: Defendant's affidavit sworn 4 April 2014, paragraph 75. 198Subsequently, on an unstated date in February 2006, the plaintiff entered into a deed of agreement for costs with the defendant in which the defendant's professional costs were agreed at $100,000 to be paid in instalments, the first $20,000 payable on or before 9 March 2006, and the balance on or before 15 June 2006. That deed was witnessed by Miss Findlay and Ms Hilder: Exhibit "1", Tab 9, page 3, Clause 2. Those fees were never paid. 199These latter matters are relevant to an assessment of whether, at the time, the plaintiff was unhappy with the settlement due to alleged coercion. 200The plaintiff relied upon the evidence of Miss Findlay to support his contention of a coerced settlement. In my assessment, if the plaintiff truly believed at that time he had been coerced into a settlement, he would not have entered into such a deed relating to the payment of the defendant's costs. It was not until three months after the settlement that the first suggestion of a coerced settlement emerged in correspondence from the plaintiff: Exhibit "AW". 201The evidence of Miss Findlay was that she was not privy to the details of the settlement negotiations between the defendant and Ms Jones and that those negotiations had taken place over time. She said she became aware that a settlement had been reached at the stage where, during an adjournment break in the proceedings, the defendant returned to the courtroom where she and the plaintiff were seated and he gave them a thumbs up sign and said there was going to be a settlement: T281.10. 202The evidence that Miss Findlay gave in support of the plaintiff's contention that he had been coerced into a settlement was to the effect that on 16 February 2003 she saw the defendant poke the plaintiff in the chest with a clipboard, at which time she said that the defendant told the plaintiff: "You have three minutes to sign this and agree or I am out of here": T281.34. This was said to have occurred in the street near the court building: T297.5. 203Miss Findlay said, somewhat emotively, that at that time she saw the plaintiff he looked as though someone had punched him (T281.35) and that he appeared white, pale and upset: T298.7. This description was at variance with Ms Hilder's unchallenged observations of the plaintiff a little time later. Miss Findlay stated that during those events, and when the defendant had returned and repeated "three minutes" before the plaintiff signed the document on the clipboard, she was crying and she was upset: T281.38. 204In considering the weight to be afforded to the evidence of Miss Findlay on the coercion issue, I consider that it must be discounted due to her close and partisan association with the plaintiff's side of the litigation over a significant period of time. This is also in circumstances where she was a business partner of the plaintiff, and she had suffered similar business losses to him in respect of their failed joint venture of pig farming, and where the plaintiff was claiming for those losses in these proceedings. In those circumstances I do not consider her evidence to be either objective or independent, and I have therefore given it diminished weight. 205On reviewing the plaintiff's evidence on the coercion allegation, I consider it too must be discounted on account of my adverse view of his credit, as already stated. 206I consider that the plaintiff appears to have convinced himself in hindsight that he had been coerced by the defendant into settling his case. I consider that if the plaintiff had truly been coerced into the settlement as he has claimed, given his disposition for written communications to the defendant, such an assertion would have emerged from him much earlier than three months after the settlement: Exhibit "AW". I have concluded that the evidence of the defendant should be preferred to that of the plaintiff and Miss Findlay on the issue of alleged coercion to settle the Supreme Court proceedings. 207I accept the evidence of the defendant that after extensive settlement negotiations, on 16 February 2006, against the background of the plaintiff having been previously fixated upon seeking to have his revenge on Ms Jones by having her gaoled (a remedy not available in the settled proceedings) the plaintiff ultimately agreed upon the details of settlement terms that were reduced to writing as evidence of his instructions to settle: Exhibit "AX". 208Overnight, those instructions were then rendered into written terms of settlement that were signed by the plaintiff, Ms Jones and by the defendant in his capacity of solicitor for the plaintiff: Exhibit "AAH". 209On the following day, 17 February 2006, settlement was formalised in open court before Rein J, in the presence of the plaintiff, when formal orders were made. This occurred without demur from the plaintiff: Exhibit "AAG". 210The plaintiff had obviously given overnight consideration to the terms of his instructions to the defendant to settle his case against Ms Jones. If his will was in fact truly overborne at the time he gave those instructions (which I do not accept) he nevertheless had ample overnight opportunity to make known to the defendant and to the court any disavowal of those terms of settlement before formal orders were made in his presence on the following day. I do not consider the plaintiff to have been too shy to do so if the circumstances warranted. He showed no lack of confidence in conducting himself in these proceedings. It is unlikely, given his correspondence over the period, that he would have been any less confident at that time. 211I find that the plaintiff's attempt in these proceedings to disavow the settlement he had reached in the Supreme Court proceedings was based on regrets that have come to him in hindsight, including him becoming aware of apparent breaches of the settlement agreement by Ms Jones, as he alleged. 212It is noteworthy that on 31 May 2004 and 16 June 2004 he wanted to settle his case, urgently, on terms not too dissimilar to those he had agreed to in 2006: Exhibit "AC11" to the affidavit of the defendant sworn on 4 April 2014. This was because at that time he was concerned about his losses that he claimed were in the range of $300,000 to $540,000: Exhibit "AC6" to the defendant's affidavit sworn on 4 April 2014, page 54. This resulted in him making an offer to Ms Jones to compromise the proceedings but she was not interested in settlement at that time. From that time, until the hearing in February 2006, the plaintiff's concerns in that regard had not diminished. 213I find that of his own free will, the plaintiff gave the defendant instructions to settle the Supreme Court proceedings against Ms Jones on the identified terms. I find that he did so as a result of his pragmatic acceptance of those terms as representing the most advantageous option then available to him. He took that course out of practical considerations and in order to avoid the risk of an outcome that was less advantageous to him than that afforded by the terms of settlement. 214This was because the litigation involved inherent difficulties and uncertainty of outcome for the plaintiff, and because settlement was therefore the most advantageous and the most certain outcome for him. 215There were competing versions of the nature and extent of the underlying de facto relationship with Ms Jones. The plaintiff's position on that issue had varied over time depending upon what was at issue at various times. In that regard, his instructions had varied, and there was a risk that the position he was seeking to maintain in the litigation would not prevail. 216The plaintiff knew that in seeking equitable relief, it was important that he had "clean hands" or that he had made full disclosure, as was described in the evidence of Ms Cohen. In that regard, the plaintiff ran the risk that his evidence might not have been accepted if it came to light he had previously falsely issued receipts acknowledging payments of debt by Ms Jones, and that his evidence of her alleged monetary defalcations had in fact been shown to be wrong in at least one admitted instance concerning an amount of $10,000, because that amount had been repaid by Ms Jones. 217These were matters within the knowledge of Ms Jones and it is likely that these matters would have been exposed in the settled litigation if it had proceeded. The plaintiff knew this, and I infer that he would have understood the tenuousness of his position in the litigation in that regard. 218At the time settlement was effected, the plaintiff was also alert to suggestions from Rein J that some of the issues in the litigation were problematic, and that the issues at stake warranted efforts at attempting to achieve a compromise settlement: Exhibit "AAE". 219In those circumstances, I find that the plaintiff took the obvious and pragmatic course, and instructed the defendant to settle the proceedings on the terms that Ms Jones indicated that she was prepared to accept. 220In taking the course of settlement, the plaintiff had achieved the best outcome available to him in the circumstances, namely the transfer of the properties in contention into his name. This was in circumstances where to his knowledge, Ms Jones' ability to provide him with any form of monetary compensation and restitution of his goods was extremely doubtful and unlikely in view of the fact, that to the plaintiff's knowledge, those goods were being progressively dissipated. The position accepted by the plaintiff in the settlement terms was similar to an earlier offer made by the plaintiff on 16 June 2004 to settle with Ms Jones: Exhibit "AC11" to the affidavit of the defendant sworn 4 April 2014. 221The settlement was negotiated in circumstances where it was unlikely that Ms Jones would have been able to pay the fees that were owing to the Office of State Revenue, and like matters. The plaintiff was obviously keen to finalise the de facto litigation to achieve certainty of outcome. I find that he therefore reluctantly but expediently agreed to the terms then on offer, even though this involved him having to pay some additional fees to achieve that end. 222The plaintiff appears to have regretted his bargain afterwards, and now seeks to blame the defendant for this, wrongly alleging he was coerced to settle. 223For the above reasons, I reject the plaintiff's assertion that he was coerced into a settlement against his will. I do not accept the evidence of the plaintiff or the evidence of Miss Findlay that is relied upon in support of the contention that the plaintiff was coerced into a settlement of the Supreme Court Equity proceedings.

Issue 3 - Whether there was a breach of fiduciary duty 224The plaintiff's claim of alleged breach of fiduciary duty by the defendant is amongst the most serious of allegations that can be made relating to professional conduct. 225The plaintiff's specific claims of breach of fiduciary duty on the part of the defendant are as follows: (1)Allegedly obtaining an unauthorised benefit for himself; (2)Allegedly behaving carelessly and recklessly; (3)Allegedly placing himself in a position of real or substantial possible conflict where his own interests conflicted with those of the plaintiff; (4)Allegedly failing to properly investigate or prepare the Supreme Court Equity proceedings for a hearing; (5)Allegedly preferring his own interests to those of the plaintiff by pressuring the plaintiff into a settlement of the Supreme Court Equity proceedings. 226In my view, the allegations of carelessness, recklessness and inadequate investigation and preparation for trial (sub-paragraphs (2) and (4) of paragraph [225] above) are more appropriately considered in connection with the alleged breaches of the duty of care or negligence in connection with Issue 4, rather than as amounting to breach of fiduciary duty. 227I shall return to evaluate the remaining allegations (sub-paragraphs (1), (3) and (5) of paragraph [225] above) after reviewing the applicable legal principles.

Applicable principles - fiduciary duties 228It is uncontroversial that as a solicitor, the defendant owed a fiduciary duty to the plaintiff as his client. 229The scope of the fiduciary duty owed by professionals is conveniently stated in general terms in the following extract from Thomson Reuters, Laws of Australia (accessed as at 20 August 2014): 27 Professional Liability, 27.1 Fiduciary Duties [27.1.230]: "...professional persons owe a duty of utmost good faith which may give rise to a presumption of undue influence. They must always act in the best interests of their clients and not in the their own self interest. Professionals by reason of their fiduciary duty also owe duties of disclosure to clients and must reveal to clients all material information coming into their possession concerning their affairs." [Omitting internal citation references] 230The scope of the fiduciary obligation is dependant upon the nature and scope of the individual professional relationship. For solicitors, this derives from what particular tasks the solicitor undertakes to carry out: Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46. 231The primary features of fiduciary duty are the obligation of undivided loyalty and the obligation to avoid a conflict between the duty to the client and the solicitor's own interests: Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449; (1997) 144 ALR 729. 232The duration of the fiduciary duty continues after the discharge of the retainer insofar as maintaining confidentiality of client information is concerned, but otherwise, the fiduciary duty ends at the time the retainer is terminated: Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR; at [205], citing Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222. These principles have been more recently applied in Marshall v Prescott (No 3) [2013] NSWSC 1949, at [109].

Consideration of alleged breaches of fiduciary duty 233Before considering the particular allegations of breach of the fiduciary duty owed it is relevant to identify the period of the retainer. 234The retainer commenced on 30 March 2004: Exhibit "C". The evidence suggests, according to the defendant's itemised bill of costs, that the defendant's retainer ceased in about mid May 2006, in terms of work done: Exhibit "O". That view was supported by the defendant's costs assessment preamble, which was dated 17 August 2006: Exhibit "AA", page 9. 235For the reasons that follow, I consider that the plaintiff has failed to make good any of his allegations to the effect that the defendant was in breach of his fiduciary duty to the plaintiff. 236Significantly, there was no particularity within the evidence adduced that either demonstrated or tended to demonstrate that the defendant had breached his fiduciary duty to the plaintiff in any particular respect. 237At T358.37, the plaintiff indicated he was alleging the defendant had made false entries of amounts for costs in his bill of costs, including double and triple entries. These allegations were not supported by evidence. 238The defendant had undertaken professional work for the plaintiff which was largely unfunded and which involved professional fees that were ultimately agreed to be capped at $100,000, but which have remained substantially unpaid except for an initial amount of $3000 which the plaintiff had earlier paid into the defendant's trust account. There can be no question of the defendant having taken financial advantage of the plaintiff in those circumstances. 239In my view, the general allegations against the defendant concerning unauthorised benefit, placing himself in a position of advantage and preferring his own interests to that of the plaintiff as summarised in sub-paragraphs (1), (3) and (5) of paragraph [225] above have not been made out, or explained below. 240As to the allegation in sub-paragraph (5) of paragraph [225] above, concerning the alleged pressuring of the plaintiff to settle his case, two relevant comments arise. First, on an objective view, the plaintiff's case clearly called for a settlement in the plaintiff's best interests. That was the view of the trial judge, and that was the view that reasonably arose from the evidence appearing in Exhibit "AAE". There is no sound factual basis for arguing that a settlement in those circumstances was in the defendant's interests, or that such a settlement was in conflict with the plaintiff's best interests. Secondly, the defendant acted well within the proper discharge of his role as the plaintiff's advocate in permissibly placing some pressure on the plaintiff to settle, having regard to the plaintiff's best interests: Studer v Boettcher [2000] NSWCA 263 per Handley JA at [53] and Sheller JA at [62] - [63]. I have already stated my findings to the effect that such pressure that may have been applied did not amount to improper coercion. 241As to the allegation in sub-paragraph (3) of paragraph [225] above, concerning "real or substantial possible conflict", absent any specific supporting evidence, this contention must be recognised as being a hollow flourish made without foundation. If a practising lawyer had made such a submission without evidentiary foundation, then professional consequences would have been very likely to have followed. 242The plaintiff referred to Exhibit "X" as evidence in support of his argument that the defendant had preferred his own interests to those of his client. Exhibit "X" comprised a rambling email that the defendant had sent to Ms Cohen, apparently on 31 October 2005 or shortly afterwards, in response to her advice to the defendant to "quit while we are ahead" in relation to the plaintiff's litigation. An extract from the defendant's email is as follows: "Dear Libby, RE: MARTIN ...you are probably right. Unfortunately, while you have been paid a few thousand dollars for some of the work that you have done, I haven't received anything much at all and I have been running other cases, for Martin, as well. Important developments are that we have just had costs assessment, in our claim for costs against Jones 4/6/04, and I have instructions to issue a bankruptcy notice, as soon as I can get a judgment registered. How would that affect the hearing? I hope to have her bankrupt by Christmas, and as you know, the hearing is set down for three days commencing February 13 2006. Meanwhile, the bad news is that the other side has had an assessment, as well. They will be doing the same thing on Martin, at the same time although I expect I will go quicker, because I am getting some money into trust, overnight to pay for the bankruptcy notice, once I have registered the certificate of determination from the assessor, with a local Court. As well, the determination, the second one immediately above, against Martin, also has an indemnity order against Jones, for the costs claimed and now assessed in favour of Houghtons, the plaintiffs and I suppose I will somehow get that registered as well, so how those orders and a bankruptcy notice and probable bankruptcy, by Martin upon Jones, affect these equity proceedings. Meanwhile, Martin's into me, for so much effort, and work, it goes beyond discussion and I realise that I'm walking into my usual problem, but I want to do as much as I can take what I can get out of this guy, because I have to. I have been faithful to you, in other matters such as [name redacted] were (sic) you got paid, and I'm still struggling to get paid..." 243In my view the true significance of the above quoted text is that the defendant revealed two things. First, dealing with the plaintiff's litigation was not a smooth pathway, and secondly, that considerable costs had already been incurred to that point, which meant the defendant considered it worth the effort to persist and to take the plaintiff's Equity proceedings to trial, including in order to obtain payment for his accrued costs if there was a successful outcome. 244Whilst that communication from the defendant contains some loose, and perhaps infelicitously chosen expressions, in the context in which the email arose, I do not consider that it constitutes evidence of bad faith on the part of the defendant, or evidence that he was, or was intending, to prefer his own interests to those of his client. In essence, he was communicating the notion that he expected to be paid for the work he had undertaken and was continuing to undertake for the plaintiff. 245In my view, none of the other evidence adduced relating to the factual matters pleaded could be reasonably invoked to support the assertion that the defendant had allowed his own interests to conflict with those of the plaintiff as his client. Furthermore, there was no evidence to show, that in any material respect, the defendant had preferred his own interests to those of the plaintiff. 246The fact that the defendant had sought security for his costs, and had then lodged a caveat on the defendant's property on 14 July 2006 to seek to secure his costs (Exhibit "AV") does not amount to a breach of fiduciary duty. The defendant was entitled to seek to secure his costs after his retainer was discharged: Beach Petroleum v Abbot Tout Russell Kennedy, at [205] and the subsequent cases cited at paragraph [232] of these reasons. This was so particularly where the parties had not entered into a conditional costs agreement, and where the payability of the defendant's fees was not contingent upon a defined successful outcome of the litigation for which he had been retained, and the plaintiff had not otherwise funded the defendant for the litigation. 247Furthermore, as the plaintiff's litigation with Ms Jones became more complex and drawn out, the plaintiff incurred burgeoning costs which remained unpaid in circumstances where there was no prospect of payment in the short term. In those circumstances it is unremarkable that the defendant sought to obtain security for his costs. This was resolved by the parties by means of a mutual agreement reached without undue influence or other vitiating factors. The defendant's earlier letter to the plaintiff dated 25 July 2005, in which the defendant asked for payment or security for payment of costs, was in polite and reasonable terms. It foreshadowed the need for the defendant to secure his costs, which ultimately occurred. It is a mis-characterisation of those circumstances to argue, as the plaintiff now does, that in seeking to secure his costs, the defendant preferred his own interest to that of his client to the point of conflict of interest and breach of fiduciary duty. 248There is no evidence that any of the defendant's conduct in the course of winding up his involvement with the plaintiff's legal affairs in the period between the settlement of the Supreme Court proceedings on 17 February 2006, and when closing his file after making the final distribution of residual funds to or on behalf of the plaintiff, involved a breach by the defendant of the fiduciary duty that he owed to the plaintiff. 249The fact that the defendant wanted to secure his accrued costs was not unreasonable or unfair to the plaintiff. In the circumstances, the plaintiff could not have reasonably expected otherwise in the face of the defendant's earlier requests for payment and the plaintiff's financial inability to progressively fund the defendant to represent him in his litigation. 250The solicitor client relationship was not only a professional one, but it also had a commercial component. The plaintiff was not ever in a position to expect that the defendant would act for him on a pro-bono basis without fee: Exhibit "C". The defendant was entitled to not only seek agreement on his costs for a compromise amount to seek to avoid the inconvenience and expense of a costs assessment, which he did by way of a deed with the plaintiff in February 2006 (Exhibit "1", Tab A), but he was also entitled to lodge a caveat on the plaintiff's properties to secure the debt under the deed that was executed by the plaintiff: Exhibit "AV". 251This financial arrangement was permissible as an unremarkable incident of the commercial component of the solicitor client relationship. There was no relevant conflict of interests in that regard. It was not a breach of fiduciary duty on the part of the defendant. 252The claim of alleged breach of fiduciary duty must therefore be rejected. 253To the extent that the plaintiff's allegations of breach of fiduciary duty, properly understood, really involve allegations of professional negligence in the sense that the defendant is alleged to have either ignored the plaintiff's best interests in preference to pursuing only those aspects of the plaintiff's need for legal assistance that suited his own disposition, or that he failed to properly investigate and prepare the plaintiff's case, those allegations are more properly examined in the course of the consideration of Issue 4, which follows.

Issue 4 - Duty of care and alleged breaches 254The question of whether there were alleged breaches by the defendant of the general duty of care he owed to the plaintiff must be considered in view of my findings on Issue 1 concerning the scope and the terms of the defendant's retainer by the plaintiff. 255The defendant conceded that the plaintiff was owed a duty of care: T29.5. The scope or content of that duty was to exercise the reasonable care that would be expected of an ordinarily skilled solicitor in the discharge of his retainer with the plaintiff. 256The plaintiff alleged that the defendant was negligent because he had materially breached that duty of care. The alleged breaches were said to have involved the defendant's conduct centred around causing or permitting delays to occur in the litigation, and inadequate investigation and preparation of the plaintiff's litigation. Those matters must be considered within the framework for assessment of negligence as is provided by s 5B of the CL Act, which is in the following terms: 5B General Principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk or harm. 257In determining whether there has been negligence on the part of the defendant as alleged the required evaluation must involve a prospective analysis of the events. That analysis should not be influenced by considerations that are driven by hindsight: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 at [124]. 258The elements of negligence relied upon by the plaintiff concern the following: (1)Allegations of preferment by the defendant of his own interests to those of the plaintiff; (2)Allegations of the defendant causing or permitting delays in the litigation; (3)Allegations of the defendant causing or permitting delays in the costs assessment process that followed the specific performance litigation; (4)Allegations of the defendant having inadequately prepared the Equity proceedings; (5)Allegations of the defendant having inadequately represented the plaintiff in the Equity proceedings, leading to settlement (6)Alleged non-pursuit of damages claims; (7)Alleged breach of Solicitors Rules. 259Those matters are considered in the paragraphs that follow.

(1) Alleged preferment of own interests 260The claim of alleged preferment of the defendant's own interests to those of the plaintiff has already been considered in paragraphs [228] to [253] above. There is no evidence to support such an allegation.

(2) Alleged delays in the litigation 261In addition to matters arising from the retainer, the plaintiff made a generalised claim that the defendant had been negligent with respect to the handling of his legal affairs due to delays. 262The plaintiff alleged that the District Court litigation that had merged into the Equity proceedings had been significantly delayed, and that this had caused him to suffer pecuniary losses, including by allowing Ms Jones time to dissipate his assets: T118.18; T436.27. 263The foundation for that claim of delay was the plaintiff's evidence to the effect that the de facto relationship litigation and the caveat removal proceedings were expected to have been resolved by Christmas 2004 according to the indications given to the plaintiff by the defendant: T117.43. 264The plaintiff also claimed that the delay in achieving removal of the caveats from his properties was costing him $1047 per week in mortgage payments: T43.35. 265The plaintiff also claimed that in reliance on the advice of the defendant to the effect that the plaintiff's underlying litigation would be resolved quickly, that is by Christmas 2004, he had entered into contracts to purchase property for the purpose of providing for his future income and that as a result of delays in the underlying litigation, he had lost about $300,000: T51.25-T51.50. This claim of loss appears to have related to the plaintiff's failed venture into pig farming: T103.25. 266The plaintiff also claimed that the defendant had delayed obtaining, and therefore being in a position to enforce, a costs assessment of $11,145.11 in his favour arising from the proceedings in the Supreme Court before White J: T106.32; T126.45. He also claimed that the costs assessment concerning those proceedings had become "frustrated" due to the incorrect use of the middle name of James instead of Charles in the formal Certificate of Determination in the plaintiff's favour: T59.9. This led to a delay in enforcement of costs between 29 August 2005 and December 2005. 267The plaintiff also claimed that the alleged delays caused by the defendant had resulted in him incurring a variety of additional liabilities, including rental arrears, penalty payments to the Office of State Revenue, loss of the value of building materials and fixtures due to theft, and about $360,000 in legal fees: T138 - T140. 268The fundamental problem with the plaintiff's contentions concerning the above allegations of delay is the absence of a reasonable factual foundation in the evidence for those claims. 269Whilst some cases of delay may reveal palpable reasons that may in turn attract criticism that could justify findings of negligence, in my view, this is not such a case. 270This is so because the reasons for delay in litigation are multifactorial and they were not within the sole control of the solicitor responsible for advancing the litigation. It is well understood that slippages occur in litigation timetables for a number of reasons not necessarily due to negligence. At times, inherent difficulties arise with instructions, preparation, funding, obtaining a listing date, opposition activity, just to identify some obvious factors. 271To say that particular delays occurred due to negligence requires particularity of evidence that can be weighed and evaluated against what might be considered to have been reasonable expectations in the circumstances. The evidence in this case does not permit such an analysis. Without an examination of the defendant's file and without an evaluation of significant events in the timeline of the litigation it is not reasonably open to ascribe the claimed delays in the litigation as being due to either "carelessness", "recklessness" or negligence on the part of the defendant. In my view, the plaintiff's approach in criticising the delays as being due to negligence is overly simplistic and is not adequately founded upon evidence.

(3) Delays in obtaining a costs assessment 272The allegation that the defendant unduly delayed the costs assessment that followed the specific performance suit is untenable. This is because, as already explained at paragraphs [118] to [119], initially it was not part of the defendant's retainer to prepare a bill of costs for those proceedings. Therefore, the delay to 23 December 2004 was not negligent as the matter complained of was not within the scope of the defendant's retainer and the plaintiff has not demonstrated a relevant departure from the expected standard of care. 273Furthermore, I do not consider that the interval of time between when the defendant relented and agreed to undertake the preparation of the bill for assessment, and the agreed timing of 23 December 2004, in any way involved a breach of duty of care owed. 274This was so especially since the plaintiff had agreed to allow the defendant to work to that time frame in preparing the bill for assessment, given the defendant's other priorities, as was disclosed to the plaintiff and accepted by him at the time. 275Furthermore, a significant source of delay after 24 December 2004 was due to the plaintiff, for whatever reason, until April 2005, refraining from providing the defendant with the required filing fee to enable the application for a costs assessment to proceed to the stage of filing and referral to a costs assessor. 276That further delay from the time of the payment of the filing fee and until the issue of the Certificate of Determination by the costs assessor was outside the control of the defendant. These circumstances do not bespeak or support a finding of negligence on the defendant's part. 277The delay in enforcing the payment of costs was an unfortunate event due to the mis-description of the plaintiff's name on the costs assessment documentation. The defendant acknowledged that this occurred due to error: T373.7. 278That said it must be recognised that not every mistake is actionable as negligence: Trust Company of Australia v Perpetual Trustee WA Limited (1997) 42 NSWLR 237, at p 247D. The question is whether a reasonable person in the position of the defendant exercising reasonable professional skill and care would have approached the matter differently: s 5B(2) of the CL Act. 279In that regard, the defendant's acknowledged error occurred because he relied upon a shortcut by using a document that had been prepared by another of the plaintiff's solicitors as a precedent without realising that the plaintiff's middle name was mis-described in that document as James instead of Charles. 280In the context of the defendant wanting to use the plaintiff's documents obtained from another solicitor as a precedent, it was understandable that he would adopt the format of a document prepared by that solicitor who had been involved in the plaintiff's other litigation. The defendant's use of the document as a formatted precedent was not unreasonable. 281I consider that the defendant's failure to check the plaintiff's middle name on the document was an understandable oversight in the circumstances. It is an error that falls well short of a characterisation of negligence: Trust Company of Australia v Perpetual Trustee WA Limited, at p 247D. 282It is also relevant to record the fact that the plaintiff's litigation was not proceeding in accordance with his wishes so far as delays in the timelines were concerned. In that regard, the plaintiff's expectation for the completion of the litigation by Christmas 2004, was just that, an expectation, not a promise that had to be performed and which would attract damages if the expectation was not met. 283In that regard a solicitor is not a general insurer against his client's legal problems: Crédit Lyonnais SA v Russell Jones and Walker [2003] Lloyd's Rep PN 7, at [28]. Furthermore, a solicitor is not bound to guarantee against all mistakes and omissions: Jennings v Zihali-Kiss (1972) SASR 493, at 512. 284The touchstone for judging negligence is reasonableness. Having regard to the requirements of s 5B of the CL Act, I do not consider that the described delays in the litigation and the error complained of by the plaintiff amount to or justify a finding of negligence on the part of the defendant.

(4) Alleged inadequate preparation of litigation 285The plaintiff made vaguely expressed claims that his Supreme Court proceedings that were ultimately resolved on 17 February 2006 had been inadequately prepared. The plaintiff further asserted that the defendant had little understanding of what was expected of him in relation to that matter: T115 - T116. 286The plaintiff could not identify any aspect of alleged inadequate preparation for the trial in the Equity proceedings. 287The evidence discloses that at the time Ms Cohen returned her brief to the defendant in those Equity proceedings, in her view the case had already been prepared for a hearing: T261.38. That evidence was unchallenged and it was not glaringly improbable. It appears that the only things left to be done to advance those proceedings was to prepare the witnesses for giving evidence, to marshal relevant documents for tendering as exhibits and to prepare the required arguments in support of the plaintiff's case. 288In that regard, as soon as Ms Cohen returned her brief to the defendant, the plaintiff was in the defendant's office the next day to assist the defendant with his preparation of the case for trial: Exhibit "AB". 289The transcript of those proceedings does not reveal any inadequate preparation: Exhibit "AAE". The plaintiff could not point to any evidence to identify any specific shortcoming in the preparation of his case for trial. 290An allegation of inadequate preparation is a very specific one which, for acceptance, requires particularity of evidence which is absent in this case. 291Such allegations are to an extent subjective and difficult to evaluate without undertaking a survey of the defendant's file and the evidentiary documents in the file against the backdrop of the forensic or tactical decisions made in the course of preparation for trial. Those matters were not exposed for scrutiny in these proceedings, either through expert evidence, or by pointing to specific supporting facts founded in the evidence. 292In arriving at that view, I have not overlooked the plaintiff's complaint that he "had no indication of what to expect from the Supreme Court proceedings until they were finalised": T443.49. In that regard he claimed there was no "revised plan...timeframes...projection of what the costs may...be". In view of my credit findings relating to the plaintiff, I consider that submission must be viewed with caution and not accepted without a review of the relevant documents. This is so particularly since matters of supporting detail that would ordinarily be expected to have been canvassed with the defendant in cross-examination were absent. 293These are matters upon which the plaintiff carried the onus of proof: s 5E of the CL Act. In my view, such proof was entirely absent in this case. 294Even if I am wrong in that conclusion, I consider that the plaintiff faces another insurmountable difficulty. 295From 7 February 2006 onwards, the defendant assumed the role of the plaintiff's advocate. It is beyond controversy that advocates are at times called upon to take on a brief at short notice and apply themselves to the preparation that is required to achieve readiness for trial. 296In this case, the defendant disclosed to the plaintiff his relative inexperience as an advocate. Following that disclosure, which was properly made, the plaintiff then acquiesced to the defendant taking on that role. Whatever relative inexperience the defendant had in that regard, a prospective review of the evidence does not identify or reveal any material shortcomings in the defendant's preparation for trial. 297Even if such shortcomings were demonstrated, the plaintiff would have to show that these were below the acceptable parameters of variation in trial preparation having regard to what could be expected of advocates of ordinary skill and competence. In this case, the plaintiff is unable to demonstrate any relevant departure from the expected standard at any point within that spectrum.

(5) Alleged inadequate representation in the Equity proceedings 298Allegations of inadequate representation at trial must be viewed in the context of the immunity afforded to advocates in the public interest of ensuring that there is finality in litigation without re-litigation of the result: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1; Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543. A recent application of this principle appears in Stillman v Rushbourne [2014] NSWSC 730, at [21] - [39]. 299In the latter case, Davies J helpfully reviewed a series of cases where the advice to settle proceedings by way of compromise attracted the defence of advocate's immunity because the underlying controversy has been finally quelled: Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 at [120]; Donnellan v Woodland [2012] NSWCA 433; D'Orta-Ekenaike v Victoria Legal Aid at [66]. 300In the absence of a wrongful coercion to settle (which I have not accepted) it is plain that any alleged shortcomings in the defendant's representation of the plaintiff as his advocate, and as a result of the applicability of the cited public policy principle and the authorities referred to in the preceding paragraphs, I find that the defendant must be held to be immune from suit in that regard: D'Orta-Ekenaike v Victoria Legal Aid; Giannarelli v Wraith. 301That said, the plaintiff has not pointed to any specific matters, or any particular alleged shortcomings, that could reasonably sustain a finding of negligent representation.

(6) Alleged non-pursuit of potential damages claims 302The plaintiff also claimed there had been no proper pursuit of his potential claim for damages for assault and related matters arising from the incident of 15 February 2003, and that as a result those potential claims had become statute barred: T128.29. The plaintiff claimed that it was not until 2007 that he became aware that there were time limits in respect of bringing actions for damages in respect of the incident that occurred on 15 February 2003: T179.19. In view of my findings on Issue 1 concerning the defendant's retainer, this issue does not arise. Nonetheless, I also record my finding that the plaintiff was not an unsophisticated person, and I do not accept that he was unaware of the time limits as claimed. He was litigious, and I do not accept he was naïve in that regard. 303The plaintiff's array of allegations to the effect that the defendant was negligent must therefore be rejected.

(7) Alleged breach of Solicitors Rules 304The plaintiff relied upon Exhibit "AAS" which comprised an extract of the Solicitors Rules which relevantly provide as follows: "Relations with clients Rules 1-16 Statement of Principle for Rules 1-16 Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of the relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client's best interests. Practitioners should maintain the confidentiality of their clients' affairs, but give their clients the benefit of all information relevant to their clients' affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law. 1. Acceptance of retainer - Instructions to act or provide a legal service 1.1 A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a cIient, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness." 305The plaintiff claimed that the alleged breach of those rules by the defendant was a basis for a finding of liability against the defendant. 306In my view the cited extract does no more than restate a solicitor's fiduciary obligation and the duty a solicitor owes to take reasonable care to advance the interests of the client as would be expected of a practitioner of ordinary skill and competence in the circumstances. 307In my view, for the reasons already outlined in my consideration of Issues 1, 2, 3 and 4 above, the plaintiff has failed to establish any liability of the defendant for damages in his favour.

Issue 5 - Causation 308Although the preceding findings require that there be a verdict and judgment for the defendant, lest it be found on appeal that I have materially erred in coming to that conclusion, and in accordance with convention, in the paragraphs that follow, I set out my findings on causation. 309To establish causation of his claimed losses, in these proceedings, the plaintiff must satisfy the requirements of s 5D of the CL Act, which provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (among other relevant things) whether or not an why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is admissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 310The requirements of s 5D have been considered and explained in Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182, at [32]. 311The plaintiff's first hurdle is to establish factual causation. To do so he must show that the occurrence of the claimed negligence was a necessary condition for the occurrence of his claimed losses, applying the "but for" test: s 5D(1)(a) of the CL Act; Strong v Woolworths at [18]. The plaintiff is unable to demonstrate that necessary pre-condition because these were delays in his litigation that were not due to negligence on the part of the defendant, and therefore the claimed losses would have accrued in any event in the factual circumstances already described. 312The second requirement, namely proof of legal causation, is a more demanding task in a case of this kind. The plaintiff must not only show that his damages arose from the events complained of, but also he must also show that such damage occurred as a result of the negligence alleged: s 5D of the CL Act. This means that the plaintiff must show that if the defendant had carried out his obligations under the retainer and pursuant to the duty of care that he owed to the plaintiff, the plaintiff would not have incurred the losses he alleges he has suffered: Strong v Woolworths, at [32]. 313I find that the plaintiff has not discharged the onus of proof concerning those matters: s 5D and s 5E of the CL Act.

Issue 6 - Assessment of damages 314Notwithstanding my findings that are adverse to the plaintiff's case on Issues 1-5, and in accordance with convention, lest I be found to be wrong in my consideration of those issues, in the paragraphs that follow, I set out my consideration of the plaintiff's claim for damages. 315During the course of the hearing the plaintiff identified the amount of his claim in a schedule that was incompletely quantified at $1,586,094: Exhibit "AAP". That schedule comprised "particulars" and did not constitute proof of the claimed losses: T143. The claim was in the following terms: "Office, Secretarial, Phone, Stationary, Photocopying Postage, faxing: 360,000.00 Personal claim for costs of analyses ( 8 years 300,000.00 Legal costs : (other than defendant) Representation, advice, Disbursements: 154,000.00 Court fees and charges: 8,600.00 Abandonment of Claim for damages: 5,000.00 + Travel, accommodation, meals, carer charges: 67,000.00 + Abandonment of Claims as set out in Statement of Claim Goods and chattels, and Cash: 390,000.00 + Non enforcement of indemnity: 23,000.00 Loss of rents: 27,000.00 + Building materials, tools, fittings and fixtures: 14,990 Loss of Value on 31 Learmonth Street E (sic) 30 -35,000.00 Cost maintaining 31 Learmonth St. 2006 - 2009 2,600.00 Costs of Borrowings: 74,800.00 Loss of potential future business income, from 85,000.00, investment in commercial venture, commenced in 2004, building towards a projected annual income in 2008 of 80,000m (sic) pa. Possible losses due to neglect to claim against:- Police and Ms Jones and associates: ? Loss re: breach of confidentiality, and preceding robbery: 45,000.00 Claim for interest, as set out in claim. Compensation health, welfare and wellbeing: ?" 316The plaintiff claimed that his goods, which had been dissipated due to alleged delays by the defendant, were valued at approximately $234,000: T93.5. This was said to be a depreciated valuation: T93.10 317Although it is not essential for documentary proof to be provided for the valuation of the goods claimed to have been dissipated, having regard to my findings as to the plaintiff's credit as a witness, I am not prepared to accept his evidence as to the claimed value of those goods without corroboration. 318The plaintiff also sought to prove his claim for the costs of document analysis, secretarial expenses, photocopying, telephone, faxes, travel and the like at $64,852.85: Exhibit "AAK". Without supporting evidence I consider that those claims must be considered to be extravagant and unproven. 319Neither Exhibit "AAK" or "AAP" constituted proof of the value of the items claimed. The plaintiff made no attempt to call evidence to prove his claimed losses despite being invited to do so, for example, at T57.19; T539, and at other places in the transcript. The only document the plaintiff put forward in the proceedings to seek to quantify his damages claim was in the course of argument, in the sum of $531,565.73. That document was not tendered as an exhibit and it was marked for identification: MFI "16". It does not provide evidence of proof of loss. 320Those circumstances lead me to conclude that the plaintiff has failed to quantify his claim for damages against the defendant with cogent and acceptable evidence of proof of his alleged losses. 321In arriving at those views I have not overlooked the plaintiff's statement that he had lost some of his documents in transit just before the hearing commenced: T22.3-5. However, given his statement at T457.15, I did not consider the plaintiff to have been relevantly disadvantaged because he had taken steps to address those circumstances. 322The plaintiff made a general claim for "compensation, health, welfare and wellbeing": Exhibit "AAP". Assuming this should be regarded as a claim for damages for non-economic loss pursuant to s 16 of the CL Act for the alleged delay and vexation he had encountered in his dealings with the defendant, in the absence of medical or allied evidence, it would be difficult to justify an assessment of such damages for any more than 20 per cent of a most extreme case pursuant to s 16 of the CL Act. This is the monetary equivalent of $19,500.

Disposition 323As the plaintiff has failed to make out his case, the defendant is entitled to a verdict in his favour against the plaintiff.

Costs 324The defendant is entitled to have his costs of the proceedings paid by the plaintiff on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders 325I make the following orders: (1)Verdict and judgment for the defendant; (2)The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned after the time for an appeal has expired; (4)Liberty to apply on 7 days notice if further orders are required. APPENDIX EXHIBITS LISTED IN CHRONOLOGICAL ORDER Exhibit Date Description AAB 02.05.01 Letter N & J Asphalt to J Jones 02/05/2001 AAJ 21.05.01 Bundle of 5 tax invoices from plaintiff to Ms J Jones dated 21/05/01, 29/09/01, 27/10/01, 11/01/02, 28/10/02 1, Tab 2 01.05.02 Loan agreement 1, Tab 12 22.12.02 Letter from plaintiff to Ms Jones AAN 15.02.03 Apprehended Violence Telephone Interim Order 15/02/2003 protecting the plaintiff AAO 18.02.03 Letter from Jeremy Rolfe, solicitor, to Detective Inspector Seymour dated 18/02/2003 1, Tab 20 06.03.03 Declaration by plaintiff 1, Tab 22 22.05.03- Statements in Local Court proceedings 87/2003 26.05.03 1, Tab 1 12.06.03 CTTT Order AAM 30.07.03 Police witness statement of Noel C Martin dated 30/07/2003 AAL 15.08.03 Police Events report 16845358 dated 15/08/2003 A 18.03.04 Exhibit "AC-1" - Affidavit and handwritten note by Mr Cohen D 23.03.04 Letter dated 23/03/2004 from Andrew Cohen to the plaintiff 1, Tab 10 25.03.04 Letter from Hrobat to plaintiff 1, Tab 11 25.03.04 Letter from plaintiff to Hrobat B 30.03.04 Letter from Andrew Cohen to plaintiff 30/03/2004 E 30.03.04 Letter dated 30/03/2004 from Andrew Cohen to Dr E O'Connor C 31.03.04 Costs Agreement dated 31/03/2004 between the parties AH 05.04.04 Letter dated 05/04/2004 from plaintiff to Andrew Cohen AJ 06.04.04 Letter dated 06/04/2004 from Andrew Cohen to the plaintiff AK 06.04.04 Letter dated 06/04/2004 from plaintiff to Andrew Cohen 1, Tab 14 07.04.04 Letter from plaintiff to defendant 1, Tab 3 14.04.04 Letter from plaintiff to defendant 1, Tab 15 22.04.04 Letter from Miss Findlay to Hrobat 1, Tab 4 30.04.04 Letter from defendant to plaintiff 1, Tab 21 07.05.04 Letter from Ms Jones 1, Tab 16 20.05.04 Letter from plaintiff to defendant AE 21.05.04 Amended statement of claim in proceedings 35/2003 in D/C of Scone between plaintiff and Ms Jones 1, Tab 13 24.05.04 Letter from plaintiff to defendant AAF 31.05.04 Letter dated 31/05/2004 from plaintiff to Andrew Cohen AAC 03.06.04 Notice of Cross Claim in proceedings 35/2003 D/C Scone F 04.06.04 Letter dated 04/06/2004 from Mr E Cohen to Mr A Cohen K 04.06.04 Supreme Court Orders dated 4 June 2004 entered on 21 July 2005 (21.07.05) G 08.06.04 Letter dated 08/06/2004 from Andrew Cohen to the plaintiff AAD 15.06.04 Letter dated 15/06/2004 from plaintiff to Andrew Cohen Z 12.07.04 Letter dated 12/07/2004 from Andrew Cohen to the plaintiff W 16.08.04 Letter dated 16/08/2004 from Andrew Cohen to the plaintiff 1, Tab 5 25.09.04 Letter from Ms Jones to defendant with attachment (28.10.04) Q 19.11.04 Letter dated 19/11/2004 from Andrew Cohen to the plaintiff AA 22.11.04 Letter dated 22/11/2004 from Andrew Cohen to the plaintiff AL 07.12.04 Letter dated 07/12/2004 from Andrew Cohen to the plaintiff 1, Tab 6 13.12.04 Letter from plaintiff to defendant AZ 15.12.04 Letter titled "New Instructions" dated 15/12/2004 1, Tab 7 21.12.04 Letter from plaintiff to defendant AM 21.12.04 Letter dated 21/12/2004 from Andrew Cohen to the plaintiff AN 22.12.04 Letter dated 22/12/2004 from plaintiff to Andrew Cohen AG 22.12.04 Letter dated 22/12/2004 from Andrew Cohen to the plaintiff AAQ 23.12.04 Plaintiff's Memorandum of costs and disbursements H 24.12.04 Application for assessment of costs re. Martin v Jones dated 24/12/2004 AO 03.01.05 Letter dated 03/01/2005 from plaintiff to Andrew Cohen 1, Tab 8 20.01.05 Letter from plaintiff to defendant AY 27.01.05 Letter dated 27/01/2005 from Andrew Cohen to the plaintiff 1, Tab 9 00.02.05 Deed of costs AF 19.05.05 Plaintiff's list of discovered documents in proceedings 6800/2004 Equity Division Supreme Court 1, Tab 18 25.05.05 Letter from plaintiff to defendant 1, Tab 19 - Letter from Mr Miller to Mr Hrobat J 20.07.05 Notice of Appearance by A Cohen dated 20/07/2005 L 29.08.05 Letter dated 29/08/2005 from Andrew Cohen to the plaintiff M 24.10.05 Letter dated 24/10/2005 from Andrew Cohen to the plaintiff N 25.10.05 Letter dated 25/10/2005 from Andrew Cohen to the plaintiff X 31.10.05 Email from Andrew Cohen to Libby Cohen, undated, replying to email dated 31/10/2005 Y 01.11.05 Letter dated 01/11/2005 from Andrew Cohen to the plaintiff P 09.11.05 Letter dated 09/11/2005 from Andrew Cohen to Ms Jones R 22.11.05 Letter dated 22/11/2005 from Andrew Cohen to Mr Conti, costs assessor S 12.12.05 Letter dated 12/12/2005 from Andrew Cohen to the plaintiff T 16.12.05 Letter dated 16/12/2005 from Andrew Cohen to the Registrar of Manly Local Court U 23.12.05 Order for Judgment dated 23/12/2005 for $11,145.11 V - Bankruptcy Notice to Ms Jones AB 07.02.06 Letter dated 07/02/2006 from plaintiff to Andrew Cohen AD 07.02.06 Memorandum to file 07/02/2006 AC 08.02.06 Letter dated 08/02/2006 from Andrew Cohen to the plaintiff AP 10.02.06 Skeleton argument of the plaintiff prepared by Andrew Cohen 10/02/2006 AAE 13.02.06 Transcript of proceedings on 13/02/2006 in Equity Division of S/C 2227/05 (228 pages) AAG 17.02.06 Terms of judgment in S/C Equity Division proceedings 2227/2005 & 6800/2004, Martin v Jones dated 17/02/2006 AAH - Consent document basing above orders O 27.02.06 Bill of Costs of defendant from period 19/03/2005 - 27/02/2006 (with 522 items) AQ 12.04.06 Letter dated 12/04/2006 from BMO Solicitors to Andrew Cohen AR 19.04.06 Letter dated 19/04/2006 from Andrew Cohen to BMO Solicitors AW 15.05.06 Letter dated 15/05/2006 from plaintiff to Andrew Cohen AX - Mutual release 2 pages handwritten AS 24.05.06 Letter dated 24/05/2006 from Andrew Cohen to the plaintiff AT 31.05.06 Letter dated 31/05/2006 from Andrew Cohen to the plaintiff AU 02.06.06 Letter dated 02/06/2006 from Andrew Cohen to the plaintiff AV 14.07.06 Caveat dated 14/07/2006 AAR 07.08.06 File note/postscript dated 07/08/2006 and covering letter dated 07/08/2006 AAA 17.08.06 Costs Assessment preamble prepared by defendant 17/08/2006 AAK 13.10.06 Bundle of statements of account dated 13/10/2006 and 12/02/2007 AAP - Particulars document "Claim filed 21 May 2014..." AAS - Solicitor's Rules extract (Rules 1 - 16)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2014