THE EVIDENCE OF Mr KLOTZ:
140 The Defendant, Mr Stephen Klotz, was admitted to practice as a solicitor in Victoria in May 1987. He was admitted to practice in NSW in February 1988 and from June 1990 to June 1994 was employed as a litigation solicitor by Dunhill Madden. He became a partner of that firm on 1 July 1994 and remained such until 30 September 1997 when he joined another firm.
141 He said in his statement dated 20 July 2004 that he acted for the Plaintiffs in the proceedings against Egan from late 1993 until early 1996.
142 The statement contains the following paragraphs:
"7. Throughout the course of the case, Mr and Mrs Symonds were very active clients, frequently telephoning me and sending me memos commenting on aspects of their claim. They appeared to me to be intimately familiar with the background facts of their claim. They actively participated in every significant decision that was taken. They questioned whatever they disagreed with or did not understand. They frequently asked me questions and expressed opinions about their case.
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11. When the matter came on for hearing, both Mr and Mrs Symonds were present in Court for every day of the hearing, for the whole of each day. They both took an active part in discussions with me and, in my presence (and, on occasions, in my absence) the barristers as to how the case was progressing. Both Mr and Mrs Symonds participated fully in every decision that was made as to how the case was to be conducted.
12. On 2 December 1993 I delivered a brief in the matter to David Hammerschlag of counsel.
13. Subsequent to 2 December 1993, I sent Mr Hammerschlag further papers to add to his brief as they became available.
14. I did not obtain from Mr Hammerschlag a preliminary written opinion on Mr and Mrs Symonds' prospects of success, prior to 30 March 1994 when the proceedings against Mr Egan were commenced by filing the summons, or at any other time.
15. Prior to the commencement of proceedings, it was my opinion that Mr and Mrs Symonds ought to succeed, provided that their evidence, and that of any expert valuer to be retained on their behalf, was accepted by the Court.
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18. After the commencement of proceedings in early 1994, I continued to work on preparation of the case. At all times up to the commencement of the hearing on 29 January 1996, I remained of the view that Mr and Mrs Symonds ought to succeed, provided that their evidence, and the expert evidence obtained on their behalf, was accepted by the Court.
19. If at any stage prior to the commencement of the hearing:
(a) I had become concerned that Mr and Mrs Symonds did not have reasonable prospects of success; or
(b) Counsel had communicated to me any such concern,
I would then have sought a written opinion from Counsel. At no time prior to the commencement of the hearing did I become concerned that Mr and Mrs Symonds did not have reasonable prospects of success. At no time prior to the commencement of the hearing did Counsel communicate to me any such concern.
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29. The instructions initially given to me by Mr and Mrs Symonds did not include the fact that they did not own the properties over which security was given to the bank for the finance for the transaction (and which were ultimately lost), and that these were owned by Senneh Pty Ltd (Senneh) Tisete Pty Ltd (Tisete) and Tabard (jersey) Limited (Tabard). However, sometime after the proceedings were commenced, I became aware that those companies owned the properties.
30. At all times it was my opinion that the proper plaintiffs in the proceedings against Mr Egan were Mr and Mrs Symonds, not the companies. Prior to the Barclays Bank deeds taking effect in late 1995 (see paragraph 39 below and following), it was my opinion that the loss which Mr and Mrs Symonds claimed they suffered was the debt they had incurred to Barclays Bank to fund the development, less the proceeds of sale of the development properties. After the Barclays Bank deeds took effect, it was my opinion that the loss which Mr and Mrs Symonds claimed they suffered was diminution in the value of their interest in companies which had provided securities to Barclays Bank as a result of those companies losing the secured properties. Mr and Mrs Symonds instructed me that the companies held no assets other than the secured properties. I agree with paragraph 136 of Mr Symonds' statement to the extent that he says his instructions had always been that the loss was ultimately Monica's and his.
31. During the course of the hearing, an application was made to join the companies as additional plaintiffs to the proceedings. As set out more fully below, during the course of the first day of the hearing, comments made by Justice Dowd led me to conclude that he was concerned that the companies were not plaintiffs. My perception of His Honour's comments was that he did not understand the damages case which Mr and Mrs Symonds were advancing in their personal capacities and that it was unlikely that his Honour could be made to understand it by further explanation. I considered it was in Mr and Mrs Symonds' interest to address his Honour's concern so that the case could be progressed. I formed the view that the simplest way of addressing His Honour's concern was to add the companies as plaintiffs.
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42. As at November 1994, it was my opinion that the two bank deeds were irrelevant to the quantification of Mr and Mrs Symonds' claim against Mr Egan. The reason for this was my understanding of the operation of the deeds which was as follows, prior to entry into the deeds, Mr and Mrs Symonds had a debt to the Bank which represented an element of their loss as a result of developing the property. Under the deeds, the Bank had agreed to waive that debt, but only after certain obligations had been performed. Those obligations were principally the sale of the secured properties and the application of the proceeds of sale to reduce the debt.
43. At no time prior to November 1994 had I received instructions that the obligations prescribed in the deed had bee fulfilled. Therefore, as at November 1994 it was my belief that Mr and Mrs Symonds remained in debt to the Bank. I recognised that on fulfilment of the obligations and the waiver of Mr and Mrs Symonds ' debt, the loss claimed against Mr Egan would be reduced to the amount of the payment made to the Bank from the proceeds of the sale of the secured properties. However, in November 1994 the deed remained executory. It was therefore my opinion that he deeds had not yet affected Mr and Mrs Symonds' claim for damages.
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53. When I read Phillips Fox's letter dated 19 December 1995, I perceived that Phillips Fox were concerned to ensure that Mr Egan could rely upon the Bank deeds to deny that Mr and Mrs Symonds had suffered any loss beyond that represented by the amount of the payments made to the Bank from the proceeds of the secured properties. I interpreted Phillips Fox's letter to be requesting particulars which went to the issue of whether the Bank deeds had come into effect, or whether it would be open to Mr and Mrs Symonds to contend that the Bank deeds were not yet effective by virtue of their inability to fulfil the obligations upon which the operation of the Bank deed was contingent. I noted that Phillips Fox stated that at the hearing they would object to the admission of any evidence of any inability to fulfil the obligations in the Bank deed. It was no part of Mr and Mrs Symonds' case, as I understood it, to contend that the Bank deeds were not effective and that their loss was not limited to loss of other secured properties. I did not have any instructions to adduce any evidence at the hearing of any inability to fulfil the obligations in the Bank deed. On the contrary, in October 1995 I had been informed by Mr and Mrs Symonds that they had taken steps to ensure all their obligations under the Bank deeds had been fulfilled (see memorandum dated 30 October 1995 referred to above). Therefore I did not consider my response to Phillips Fox's letter would be controversial.
54. For this reason, I did not regard Phillips Fox's letter dated 19 December 1995 as raising a matter of particular significance. Responding to Phillip Fox's letter dated 19 December was one of many issues to be dealt with as part of the final preparation for the hearing. I did not ignore the letter, but I did not regard it as one of the more important things to be accomplished before the start of the hearing. The hearing was listed for 5 weeks. It is and was then my experience that in the course of a lengthy hearing many matters which may be outstanding at the beginning of the hearing are dealt with, to the satisfaction of the parties and the Court, during the course of the hearing. I regarded Phillips Fox's letter dated 19 December 1995 as one such matter.
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56. Subsequent to 19 December 1995, I did not receive from Phillips Fox a request for a response to their letter dated 19 December 1995 and I was not aware that they regarded the provision of these particulars as an important issue. The complaint made by Mr Egan's counsel on the first day of the hearing about the lack of a response to the letter dated19 December 1995 was not foreshadowed to me.
59. On 4 October 1995, the proceedings were listed for a call-over at which they were allocated a hearing date to commence on 29 January 1996. It was my opinion in October 1995 that the proceedings were sufficiently prepared to take a hearing date commencing on 29 January 1996. I did not consider that there were any tasks outstanding for final preparation of the trial which could not be accomplished within the period between 4 October 1995 and 29 January 1996.
60. At no time prior to the commencement of the trial on 29 January 1996 did I consider that the case was not sufficiently prepared for hearing so as to warrant an application to vacate the hearing date. At all time, it was my view that any tasks outstanding for preparation for trial could be accomplished within the time then remaining before the commencement of the trial.
61. At no time did I advise Mr and Mrs Symonds that the case was not prepared for hearing, because at no time did I hold that view.
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68. I did not ask Mr Hammerschlag to provide me with a written advice on evidence. Although I cannot remember what consideration I gave to it at the time, it is not my usual practice to request a separate advice on evidence when counsel is intimately involved with a matter, as Mr Hammerschlag was with this matter. This is because I consider it is part of counsel's retainer to raise any evidentiary issues that are picked up in the process of settling evidence.
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71 At no time after Mr Justice Dowd handed down his various judgments in which he ruled on the admissibility of the lay statements which had been filed on behalf of Mr and Mrs Symonds did I consider that the rejection of evidence had significant consequences for Mr and Mrs Symonds ' prospect for success. The rejected evidence was largely rejected on the grounds of the relevance or form of the evidence. In my experience, when evidence is rejected because it is considered by the Judge not to be in correct form, it is customary for leave to be granted to adduce further evidence on the same topic. Therefore, it was my expectation that Mr and Mrs Symonds would be granted leave to adduce further evidence in order to fill any gaps which resulted from the evidence being rejected.
72. On 29 January 1996, the trial of Mr and Mrs Symonds' case commenced before Justice Dowd. Generally, the course of the hearing was defined by the defence team taking a particularly aggressive and difficult approach to the conduct of the case, and by the plaintiff's team having to take many steps to deal with points raised by the defendants or, on occasions, by his Honour. On a number of occasions, I formed the view that Mr and Mrs Symonds ought take a certain step simply in order to avoid any further argument on the issue, or to assuage the Judge's apparent concerns, rather than because I though the step was, from a purely legal point of view, necessary, appropriate or would improve Mr and Mrs Symonds' chances of success. For example, the joinder of the corporate plaintiffs. I advised Mr and Mrs Symonds to take these steps for strategic reasons.
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77. When Justice Dowd gave judgment on the application for security for costs, he had not heard any oral evidence from, or cross-examination of either Mr or Mrs Symonds. Nonetheless, when I heard the judgment and subsequently read the reasons for judgment, I noted that his Honour made a number of comments which led me to form the view that it was doubtful that he would accept Mr and Mrs Symonds as witnesses of truth. In particular, I noted that his Honour said in his reasons for judgment that:
(a) "the plaintiffs have elected not to correct the misleading opening statement ";
(b) "for the Court to be left in the state of having two mutually inconsistent statements, and the first and second plaintiffs electing … not to produce evidence, is in my experience, as I have indicated quite extraordinary"
(cc) there had been a "lack of frankness of the plaintiffs, who have sat in Court listening to each of the various conflicting statements that have been made about their financial position";
(d) the plaintiffs may order their affairs so as to defeat any claim by the defendants for costs: and
(e) the plaintiffs had assets and had "elected not to disabuse the Court of that impression".
78. It was my opinion that Mr and Mrs Symonds' credit was critical to the success of their case. As a result of my preparation of the case and my knowledge of the defence that was being advanced on behalf of Mr Egan, it was clear to me that a central factual issue in the case would be whether or not Mr and Mrs Symonds had relied on Mr Egan's valuation in making their decision to purchase Paradis sur Mer. Mr and Mrs Symonds' evidence on this issue was largely their own witness statements and what would be said by them in oral evidence.
79. As a result of the reasons set out in paragraphs 77 and 78 above, I formed the view that Mr Justice Dowd was highly likely to disbelieve Mr and Mrs Symonds and dismiss their case. I was also conscious of the fact that if His Honour found against Mr and Mrs Symonds on issues of credit, it would be extremely difficult to overturn such a decision on appeal.
143 Mr Klotz gave oral evidence. Examination in chief was confined to formal matters, including verification of his two statements, the one referred to above and a subsequent statement dated 26 April 2007 in reply to statements of witnesses in the Plaintiffs' case to which it is unnecessary for me to make further reference.
144 He was cross-examined at some length by Mr Gray. He told Mr Gray that he regarded it as one of his responsibilities to identify the correct plaintiffs, but could not recall whether in drafting the initiating proceedings he had been aware of the declaration of trust in favour of Gowrise Pty Ltd. He said that he was satisfied that Mr and Mrs Symonds only were the correct plaintiffs.
145 The cross examination included the following exchanges:
"Q. In any event, you must have known that Phillips Fox would be acting very shortly after you served the summons in April 1994?
A. Yes.
Q. Did you anticipate that they would represent Egan's interests thoroughly and competently?
A. Yes.
Q. And that would entail a detailed consideration of the facts and the law relevant to the case?
A. Yes.
Q. Did you recognise that the representation of the Symonds' interest would equally involve a detailed consideration of the facts and law relevant to the case?
A. Yes.
Q. And that that would include both liability and damages?
A. Yes.
Q. And the time that you instituted the proceedings on 30 March 1994, what significant factual issues did you perceive were likely to arise in the Symonds' case against Mr Egan?
A. As far as I can recall, certainly I had identified that the most significant issue would be the issue of reliance, and of proving the negligence that was alleged against Mr Egan. I presume - I don't recall specifically thinking about it, but I believe I must have also considered the issue of what their loss was.
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Q. Do you agree that in March 1994, if you had turned your mind to the possibility that there could be problems under the three year limitation period imposed by the Trade Practices Act, that it would be in Mr and Mrs Symonds' interest to assert any other causes of action that post dated the 4th of January 1990?
A. Sorry, you are asking me my opinion now?
Q. No. Whether it occurred to you in March 1994.
A. I can't recall. I am thinking about it.
Q. I am asking you your opinion now, with the advantage of hindsight, do you agree that it would have been in their interest to allege causes of action subsequent to 4 January 1990?
A. I agree now that it is certainly something that I would give serious consideration to.
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Q. As you understand the position, there are said to be four separate occasions in which Mr Egan gave advice to the Symondses, which they claim as negligent. Is that your understanding?
A. Yes.
Q. In 1994, if you had turned your mind to the question, would you have appreciated that the Symondses may be able to prove that one of those valuations was relevantly negligent but not be able to prove that another one was?
A. Yes, that's theoretically possible.
Q. If you had turned your mind to the question in 1994, would you have recognised that against that contingency it would be in the interests of Mr and Mrs Symonds, if other elements were capable of proof, to allege causes of action based on all four of Mr Egan's valuations?
A. It might have been. I'm not sure if they are all valuations in the true sense, but - I said earlier that I would certainly give serious consideration to it and take into account or consider the various matters that I referred to earlier. I haven't effectively reconstructed the position as it was in 1994 and analysed carefully each of those matters to the point where I could now give you a firm view. But if, after doing so, I formed the view that the benefit of adding a cause of action on one or all of those other advices outweighed possible disadvantages of doing so, then I would have recommended it.
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Q. Do you agree that in 1994 a claim for damages of professional negligence for a sum in excess of $10 million was a significant litigious undertaking?
A. Yes.
Q. Do you agree that in 1994 such a claim needed to be prepared with very considerable skill and care?
A. Yes.
Q. If you had any perception of complications that may flow from alleging against Mr Egan causes of action based upon his subsequent letters, don't you think that was something on which it would have been prudent to obtain Mr Hammerschlag's advice?
A. Yes.
Q. Do you agree that in order to get that advice you would need to provide Mr Hammerschlag with the relevant letters and instructions about the circumstances in which they were given and the alleged reliance and consequential damage?
A. Yes.
Q. Did you do that?
A. Yes.
Q. When?
A. At the time that further particulars were provided.
Q. Are you saying that at the time that further particulars were provided you instructed Mr Hammerschlag to give advice on potential causes of action based upon the subsequent letters from Mr Egan?
A. No. I said that at the time of providing particulars I gave him copies of the letters and the instructions that I then had as to Mr and Mrs Symonds' asserted reliance on them to enable him to settle the further and better particulars provided.
Q. Did you instruct him to advise whether the pleadings should be amended to include causes of action based on those subsequent letters?
A. I don't recall doing so.
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Q. When exactly did you form the view that Mr and Mrs Symonds' claim for damages against Mr Egan would be affected by the deed entered into with Barclays Bank in 1994 once that deed took effect?
A. I don't have a specific recollection about it, but I expect that it would have been at or about the time that the deed was entered into.
Q. Wouldn't you have turned your mind to the question at the time the deed was being negotiated?
A. I may have. I don't recall.
Q. When you were first informed by Mr and Mrs Symonds that Barclays Bank had proposed some kind of release for them, was that something that came to you as a surprise?
A. I don't recall how I reacted to it.
Q. Have you ever encountered professionally before instances of a bank or financial institution entering into a deed like this with a defaulting customer?
A. No.
Q. And you understood, didn't you, that although you might not know an exact figure, the amounts involved were very substantial?
A. Yes.
Q. Are you saying that you can't be sure now when you realised that that may have some implications in relation to the Symonds' claim against Mr Egan?
A. That I can't be sure now when I realised?
Q. Yes?
A. Yes.
Q. Looking back at it now, don't you agree that given the amounts involved, the implications of such a deed for the claim against Mr Egan was a very important matter?
A. Yes.
Q. Looking back at it now, don't you agree that it was a subject which in itself would justify getting very careful considered legal advice?
A. That I would consider getting legal advice about?
Q. Well, before we say who, that it was a subject, that is the effect of this deed on the Symonds' claim against Mr Egan, was sufficiently important matter to obtain considered legal advice?
A. Yes.
Q. You didn't seek any such advice from Mr Hammerschlag, did you?
A. Not that I can recall.
Q. Or from anybody else?
A. As to the effect that it may have on the claim against Egan, no, I don't recall. I don't believe I did.
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Q. Did you understand in 1994 that Barclays Bank held securities for the moneys advanced to Mr and Mrs Symonds for this project given by various companies which the Symondses controlled?
A. Yes. At some stage in 1994 I became aware of that.
Q. When you say at some stage, don't you know when?
A. I can't tell you now precisely. I can't recall precisely when I first became aware, but at least by the time the deed was entered into I was aware.
Q. When Mr and Mrs Symonds first came to see you at the end of November 1993, didn't they tell you that they had lost their properties?
A. I don't recall them telling me that at the time.
Q. Do you remember them telling you that at any time?
A. I don't recall them specifically telling me that, but it became apparent, at least by the middle of 1993, that that was so.
Q. Even if this all came as a revelation to you with the Barclays Bank draft deed, by June 1994 you understood that the bank held securities over various land properties owned by companies controlled by Mr and Mrs Symonds?
A. Yes.
Q. And you recognised, didn't you, that as separate legal entities the rights of those companies and the rights of the Symondses would be governed by the law that applies to principal debtors and guarantors?
A. I don't recall. I really don't recall how I viewed the effect of those transactions or - the effect of those transactions.
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Q. Is it the case that the first time Mr Hammerschlag ever knew about this deed was at the conference on 24 January 1996?
A. I don't recall. It may have been.
Q. As at 24 January 1996 your belief was that the quantum of damages that the Symondses or somebody would have to claim from Mr Egan was the value of the properties that the bank had taken in reduction of its debt, wasn't it?
A. Yes.
Q. How were you going to prove that?
A. I don't recall now.
Q. You had never obtained at any stage a current valuation of any of those properties, had you?
A. No.
Q. One of them at least, that is the one in Jersey, had not even been sold, had it?
A. No.
Q. If you were going to claim damages based on the value of the properties taken by the bank, which included the property in Jersey, how were you going to do it?
A. I don't know.
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Q. Was it the view expressed by at least advisors amongst themselves on 26,27,28 February 1996 that if the case was going to continue at all it would only be worthwhile continuing if the corporate plaintiffs were included?
A. I don't recall that.
Q. Was it your view that without the corporate plaintiffs there was no point in the case continuing with Mr and Mrs Symonds as the only surviving human plaintiffs alone?
A. I thought at that point that there wasn't much point in the case continuing at all, so to answer the question as to whether there was any point of continuing without the corporate plaintiffs is difficult.
Q. You say is difficult?
A. I don't think there was - having formed the view that they were going to lose on the basis that they were unlikely to be believed as to their asserted reliance on Mr Egan's advice, I don't recall considering whether there was any point in continuing without the corporate plaintiffs.
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Q. Do you agree that if, instead of settling with Mr Egan, the case had been adjourned for a hearing at some later date, during the intervening period of that adjournment everything that could possibly be reviewed to improve the position in which the Symonds forensically stood at that date would have been done?
A. Well, the significant problem that Mr and Mrs Symonds faced at that time was with his Honour and after the attempts to have his Honour disqualify himself and then before the Court of Appeal had failed, I am not sure what benefit might have been obtained by an adjournment in dealing with that issue and the view that - that I and Mr Spender and Mr Hammerschlag had formed that Mr Justice Dowd was not going to believe Mr or Mrs Symonds on that central issue of reliance. I don't believe that the - the other - the aspects of the case on which he had ruled, for example on evidence, whilst they may have been matters that could have been attended to in an adjournment, it was not my view then and it is not my view now that they influenced the advice that was given to Mr and Mrs Symonds to discontinue or any part of that decision.
Q. Do you agree that if Mr and Mrs Symonds had rejected the advice to settle and had insisted on proceeding, that during the interviewing period everything that could possibly be reviewed to improve their position would have been done?
A. Yes, if they had instructed the firm to do so, yes.
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Q. Was it your understanding, on 26 February 1996, that in terms of your retainer by Mr and Mrs Symonds, once $85,000 paid by them into the firm's trust account had been exhausted, however applied, the firm would bill them for any further fees upon conclusion of the proceedings and not before?
A. No. This had been varied. This agreement, the amount of $85,000 had been varied on two occasions.
Q. If you like, change the money account, make it $150,000. Once that sum had been exhausted, was it your understanding on 26 February that the firm would bill the Symonds no more until the end of the case?
A. It was certainly my understanding that if the case had concluded within the five weeks that had been estimated, then they would not have been asked for any further payments. But I can't recall now whether in February 1996 I formed the view as to whether or not the firm was obliged, in the event that the matter did proceed beyond that period to an adjourned hearing, that the firm would be obligated to meet counsel's fees out of the firm's general account. But I certainly asked Mr and Mrs Symonds, said to Mr and Mrs Symonds, that they would need to pay $75,000 to cover the fees of Mr Spender and Mr Hammerschlag who had agreed to continue at a discounted, at discounted rates and as I said yesterday, Mrs Symonds indicated to me that they could and would.
Q. Do you agree that there is nothing in writing, that anyone now can locate, which in any way changes the terms of this retainer letter in any respect, other than the changes to the monetary sum of $85,000 to which you have alluded?
A. I think that's correct, yes.
Q. Do you agree that on 26 February 1996 you knew that the Symondses had never agreed to any change in the terms of the retainer agreement, except, at most, in respect of increasing the amount to be paid into the firm's account?
A. Yes.
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Q. It was obvious to you, wasn't it, on 26 to 28 February 1996, that if the Symonds' case were to continue and it was going to be reviewed and problems solved, that the case would be likely to carry on for five to eight weeks?
A. I don't recall being aware of it being five to eight weeks but certainly some further five weeks.
Q. At least five weeks?
A. Yes.
Q. And you appreciated between 26 to 28 February 1996 that if that happened and if the firm had to meet counsel's fees, that would be a very substantial sum, wouldn't it?
A. If the firm had had to, Yes.
Q. And I suggest to you that you had, on behalf of the firm, a vested interest in bringing the Symonds' case to an end on the 28th of February 1996 to avoid that possibility, didn't you?
A. Certainly a vested interest. The firm was interested in whether or not the matter proceeded, yes.
Q. Financially interested?
A. Yes, if - if the Symondses were not prepared to provide any further funds for the firm's fees or to pay any part of the unbilled time at that point, then yes.
Q. I suggest to you that when you looked at it objectively, the only problems that had arisen for the Symonds in their case had arisen on and after the 29th of January 1996, hadn't they?
A. Yes.
Q. I suggest to you that it was open to you to say to them:
"Look, Mr and Mrs Symond, we have this opportunity for an adjournment here. If Mr Spender can't act, we can get the best man for you in Sydney. We can start your case again and the firm will pay all the way up to judgment."
You could have said that to them but you didn't, did you?
A. I don't know that I could have said that to them but I - I don't believe that I did say that to them?
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Q. Now, what I am suggesting to you is that if you had put to Mr and Mrs Symonds the possibility of reconstituting the case possibly with a change of representation, certainly to have it heard some weeks at least and probably months later down the track, there was no necessary assumption that the Judge would have a closed mind to the case, was there?
A. Well, we had formed a particular view about the Judge and there was no reason to believe that anything that might happen over the course of an adjournment would cause any of us to change that view. What was also possible over the course of an adjournment is that an opportunity to discontinue without any costs liability might have also changed.
THE IMMUNITY OF AN ADVOCATE:
146 Paragraph 32 of the Defence referred to above pleads what is commonly referred to as "advocate immunity", recently confirmed by the High Court in D'Orta - Ekenaike v Victoria Legal Aid (2005) 223 CLR1.
147 Paragraph 1 of the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ identified the issue before the court in these terms:
"[1] There are two principal issues in this matter. First, should the Court reconsider its decisions in Giannarelli v Wraith
(a)
at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court; and
(b)
in 1891 (the date at which the extent of the liability of a barrister was fixed by the Legal Profession Practice Act 1958 (Vic) ("the LPPA")) an advocate was immune from suit for allegedly negligent acts or omissions committed in court in the conduct of civil or criminal litigation, or committed out of court but leading to a decision affecting the conduct of a case in court?