O'Doherty v Birrell [2001] VSCA 44

5. The South Australian proceeding was commenced on 1 September 1995 and 12 months later the liquidator made application for summary judgment under the local Rules of Court. On 10 October 1996, Lander, J. fixed times for the filing of affidavits and the like, ordering that the application be heard on 13 and 14 January 1997. For reasons to be described more fully in due course, the times fixed by the judge were not observed on the defendants' side and on 13 January application was ultimately made for an adjournment on the ground that the defendants' case was not yet ready. The application was a difficult one and in the course of it Mr. Birrell's retainer was terminated and he went into the witness box. In the end, Lander, J. did grant the adjournment but only after exacting these undertakings: first, that the defendants' three legal advisers not seek costs for themselves for work done on the application for summary judgment to the date of the adjournment and, secondly, that one or more of the three of them pay the plaintiffs' costs on an indemnity basis. Subsequently, on 4 July 1997 after hearing from the three legal practitioners, Lander, J. ordered that the plaintiffs' costs of the adjournment be paid by Mr. Birrell.

8. In the County Court Mr. O'Doherty, as plaintiff, claimed the sum of $49,600, in effect, for professional fees for work and labour done by him largely on and between 24 December 1996 and 13 January 1997 pursuant to the retainer for the defendants in the South Australian proceeding. It was alleged in the original statement of claim that Mr. Birrell, the defendant, had been negligent in his carrying out of the work required of him pursuant to the retainer in the South Australian proceeding, that he had thereby fallen in breach of a duty which he owed to the plaintiff to take care not to occasion him financial loss in the execution of their common retainer, and that it was in consequence of that breach that the plaintiff had lost the fees in question. In the course of the trial, counsel for the plaintiff sought and obtained leave to amend the statement of claim by adding allegations of fraudulent misrepresentation by the defendant and some witnesses were recalled. The judge, however, remained unpersuaded of the plaintiff's case on either count. In relation to negligence, the judge was not persuaded that the defendant owed to the plaintiff any relevant duty of care. In relation to fraudulent misrepresentation, his Honour found that the evidence fell "well short of establishing that the representations were made with a fraudulent intent by the defendant". Accordingly there was judgment for the defendant. The plaintiff now appeals, arguing that there was a relevant duty of care of which the defendant stood in breach and that the plaintiff had made out its case in deceit.

12. Before attempting to describe the work done by the plaintiff and for which he now seeks to recover the fees from his fellow barrister, it is convenient to follow in more detail the course taken by the South Australian proceeding. The proceeding was brought by the liquidator on behalf of a great number of companies, all members of the Emanuel Group. The defendants were a group of companies largely under the control of one Robert Simionato. The purpose of the proceeding was to recover more than $4.6 million allegedly had and received by the defendants to the use of the plaintiffs. All of the plaintiffs were either in liquidation or provisional liquidation and an injunction was sought, early in the piece, to restrain the defendants from dealing with any of their property (and thus, perhaps, putting their assets beyond the reach of the plaintiffs). Such an injunction was granted and so, from time to time in the course of the proceeding, orders were sought and obtained to allow the application of funds by the defendants for their legal representation. It seems to have been common ground in the County Court that the defendants' assets which were the subject of the injunction were the only source of funds for payment by the defendants of their legal costs. Although Mr. Simionato apparently played a major role in providing instructions for the defence, he told the County Court judge - and it was accepted - that he had never agreed to be personally responsible for the fees of either Mr. O'Doherty or Mr. Birrell.

15. With the South Australian proceeding under way, a statement of claim was filed in December 1995 and directions for further steps were given in March 1996. In June 1996, and at a time when Mr. O'Doherty was alone acting as counsel for the defendants, a defence was filed, although it did not conform with the pleading rules in a number of respects and it was later to be described as only "formal**"**. Some time in August Mr. Birrell accepted a retainer with Mr. O'Doherty and the two of them were retained together for a number of months thereafter. On 2 September 1996, the application was made for summary judgment and (as appears from the transcript of proceedings on 13 January 1997) that application was supported by a very substantial affidavit of the liquidator, accompanied by 16 volumes of documents (presumably exhibits). On 6 September 1996 the defendants made a cross-application for a stay of the whole proceeding and this application was dismissed on 10 October, when Lander, J. gave the directions already mentioned for the hearing of the application for summary judgment. On 6 September both Mr. O'Doherty and Mr. Birrell appeared before Lander, J., with their instructing solicitor (who by then was one Tropeano), but on 10 October, when the cross-application was dismissed, only Mr. Tropeano was present. Despite a number of appearances thereafter by Mr. Birrell, Mr. O'Doherty did not have occasion to appear again before the judge until 13 January 1997.

18. In more detail, the directions given on 10 October were that the plaintiffs' application for summary judgment was to be heard on 13 and 14 January 1997 and that the plaintiffs were to file any further affidavits by 14 October 1996, the defendants any affidavits in answer by 11 November 1996 and the plaintiffs any affidavits in reply by 25 November 1996. The parties were ordered to exchange any objections to the admissibility of evidence by 2 December 1996. An outstanding application to vary the injunction in relation to the defendants' assets was adjourned to 6 November 1996 and the application for summary judgment was also adjourned to that date, to allow the defendants, if they so chose, to make application to vacate the hearing date of 13 January. On 6 November, the matter was adjourned to 8 November, but no application to vacate the hearing date was made. It was, however, suggested by counsel for the defendants that an application would be made to set aside the application for summary judgment and Lander, J. gave the defendants until 18 November to make that application. Again, no such application was made.[1] During November, there were a number of applications to Lander, J. made in relation to discovery and his Honour made orders for further and better discovery by the plaintiffs. On 26 November 1996, the judge directed that the defendants notify the Court within seven days of any application they wished to make for an extension of time to make any application affecting the plaintiffs' application for summary judgment, but again no such notification was given and no application was made by the defendants.[2]

21. On 10 January 1997, the defendants filed three affidavits in opposition to the plaintiffs' claim for summary judgment.[3] Those affidavits were, of course, out of time according to the directions that had been given on 10 October. On 13 January, the application for summary judgment came on for hearing as previously directed. Mr. Tropeano was present and both Mr. O'Doherty and Mr. Birrell announced their appearance. Mr. Birrell had the conduct of the matter and he foreshadowed an application for an adjournment. According to Lander, J., "[Birrell] recognised that the affidavits, which were filed out of time, did not address the issues in the case and in those circumstances, in many respects, the plaintiffs' allegations were left unanswered".[4] The judge then sought by questioning to discover where the fault lay. What followed is perhaps best described in the words of the judge himself when giving judgment subsequently in the main proceeding on 18 April 1997[5]:-

"34. He sought a short adjournment and upon resumption Mr O'Doherty advised me that Mr Birrell's retainer had been withdrawn and that Mr Birrell sought leave to withdraw. Mr. O'Doherty then applied for an adjournment upon the grounds that the defendants were not ready. In support of his application he called Mr Birrell who confirmed, on his oath, that he had not applied his mind to the issues in the matter as he should have and that the defendants were free of all blame for their state of unreadiness. 35. After some argument I allowed the defendants their adjournment but upon terms which included a term that all of the defendants' legal advisers undertake not to seek any costs in relation to the application for summary judgment up to and including that day and the further term that one or all of them would pay the indemnity costs of the plaintiffs fixed at $9,780. I did not then decide who of the defendant's legal advisers ought to be responsible for the plaintiff's indemnity costs but adjourned that discrete question for hearing after the application for summary judgment. I will deal with that matter separately. 36. I was only prepared of course to adjourn the application for summary judgment upon first being satisfied that no prejudice was caused to the plaintiffs. Of course in a sense the plaintiffs did suffer prejudice. They lost their opportunity of having their application heard on 13 January 1997. 37. Evidence discloses that the defendants, up until the 13 January 1997, had incurred legal fees in the order of $400,000 on their defence. All they had to show for that was a defence which did not comply with the Supreme Court Rules."

We suppose that this reference to "legal fees in the order $400,000" was a typing slip for $40,000. As for the undertaking described by his Honour as "not to seek any costs in relation to the application for summary judgment up to and including that day", according to the court record the undertaking was, more fully, not to claim any such costs from the defendants; but as there was no other source of payment it came to much the same thing.

26. On 13 January 1997 the application for summary judgment was adjourned until 4 February 1997 and directions were given for the defendants to file answering material by 28 January.[6] The solicitor then on the record remained so but both Mr. O'Doherty and Mr. Birrell ceased to be retained and Adelaide counsel were briefed. On 23 January, the injunction was varied to allow for payment of a further sum of $50,000 for legal fees; the time for filing of affidavits was extended until 31 January and the hearing date amended from 4 February to 5 February.[7] Subsequently the injunction was further varied to allow for the payment of another $20,000 for legal costs.[8] When the matter came on again for hearing in February, new counsel for the defendants sought yet another adjournment to enable further evidence to be put before the Court. The application was refused, Lander, J. characterising the application as "misconceived".[9] Recalling that on 13 January he had described "the three major issues identified in the affidavit [of the liquidator] and in the statement of claim", the judge said that those three main issues had still not been addressed.[10] As he put it a little later[11]: "The defendants have simply not addressed the thrust of the plaintiffs' case". Accordingly a further adjournment was refused[12] and Lander, J. proceeded to hear argument, giving judgment ultimately on 18 April 1997 as already mentioned. His Honour concluded that 27 of the plaintiffs were entitled to summary judgment, recovering all of the assets of the defendants[13], thereby bringing to an end the plaintiffs' application which had been commenced in September 1996. That was subject to costs.

29. On 4 July 1997, Lander, J. returned to the question of costs that had arisen on 13 January. As has been described, the price of the adjournment on that day included an undertaking by the defendants' three legal advisers that one or more of them would pay the costs of the plaintiffs of the adjournment, and on an indemnity basis. With a view to later determining by whom these costs should be paid, the judge had directed that any further affidavit to be relied upon in this regard should be filed by 28 January. Pursuant to that direction, Mr. Tropeano filed an affidavit sworn on 23 January, and Mr. O'Doherty an affidavit of 27 January. Mr. Birrell filed written submissions on 4 February 1997. To put it shortly, Mr. Tropeano stated that Mr. Birrell had had the general conduct of the action; Mr. O'Doherty submitted that the fault lay wholly with Mr. Birrell; and Mr. Birrell, though not seeking to place blame on Mr. O'Doherty, appeared to contend that Mr. Tropeano had not fulfilled all his responsibilities in the matter. On 4 July 1997 Lander, J. gave judgment on the issue of costs, concluding that Mr. Birrell alone should pay, within 28 days, the plaintiff's costs of the adjournment, which had previously (on 13 January) been fixed at $9,780. There was no appeal.

32. No doubt it was largely because of the decision of Lander, J. that Mr. Birrell was solely responsible for the costs thrown away by the adjournment of 13 January 1997 that Mr. O'Doherty now claims to have his fees from Mr. Birrell as loss and damage occasioned by Mr. Birrell, either through negligence or fraudulent misrepresentation. Plainly Mr. O'Doherty lost the chance to recover those fees from the clients when he undertook to Lander, J. not to claim fees for any work done on the application for summary judgment up until 13 January; but should Mr. Birrell now have to pay the amount of those fees? After trial the County Court judge said not. The question for us is whether that was wrong.

36. It is convenient first to examine the retainer of Mr. Birrell in the South Australian proceeding. As already mentioned Mr. O'Doherty was retained first, but his field of expertise was mainly in the area of criminal law, and more particularly, as we understand it, "white collar crime". It was Mr. O'Doherty who drew the holding defence as a matter of urgency and in or about July 1996 it was he who suggested to Mr. Simionato and other directors of the defendant companies in the South Australian proceeding that they retain other counsel competent in commercial law, as it was outside his area of expertise and furthermore he had other substantial commitments. It was then that Mr. O'Doherty spoke to his friend, Mr. Birrell, about the South Australian proceeding and in July or early August 1996 O'Doherty introduced Birrell to Mr. Simionato. At about the same time as Mr. Tropeano, an Adelaide solicitor, became the solicitor on the record for the defendants in the South Australian proceeding, Mr. Birrell accepted a retainer. In his evidence at trial, the plaintiff said that Mr. Birrell was retained on the basis that he, Birrell, would take over control of the South Australian proceeding for the defendants and that he would also be retained for the defendants in connection with associated Federal Court and other civil proceedings in which they were involved. Both Mr. O'Doherty and Mr. Birrell apparently entered into an arrangement with Mr. Tropeano whereby the latter was not to be responsible for the payment of their fees and the client, not Mr. Tropeano, was to provide instructions directly to them. According to Mr. O'Doherty, Mr. Birrell was now to have the conduct of the South Australian proceeding for the defendants, Mr. O'Doherty himself merely providing what assistance he could in line with his expertise and according to his availability.

39. The trial judge accepted Mr. O'Doherty's evidence in this regard. We do not have any transcript record of the evidence actually given in the course of the County Court trial but we have the trial judge's careful and comprehensive reasons for judgment in which, when making his findings, his Honour said this of the retainer of Mr. Birrell and the resulting relationship between the two barristers:-

"I accept the evidence of the plaintiff [O'Doherty] as truthful and reliable. I am satisfied that the defendant [Birrell] did accept a retainer in the South Australian proceeding in early August 1996 on the basis that he would take over the conduct of it for the defendants. As part of his retainer I am satisfied that he had the carriage for the defendant[s] in the summary judgment application. It was part of his retainer to prepare the affidavit to be sworn on behalf of the defendant[s] in opposition to the application."

"I am satisfied that after the unsuccessful application to Lander J on 6 September 1996 for a stay of proceeding, the plaintiff's involvement in the South Australian proceeding under the arrangement which he had made with the defendant was minimal up to 24 December 1996, although he continued to hold a retainer in the matter. That arrangement was made with the approval of Tropeano and Simianato and it involved the plaintiff in being prepared to assist the defendant if he were available and if that assistance involved matters within his expertise."

45. This led his Honour to make these findings about the responsibility for the events of 13 January 1997:-

"I do not accept the defendant's evidence that the preparation of the defendant's case on the summary judgment application was at all times a joint activity involving both the plaintiff and the defendant in which the plaintiff was to prepare or assist in the preparation of affidavits and objections."

After referring to Simionato's evidence which, he said, "supports the plaintiff's evidence as to Birrell being in charge of the defendants' case on the summary judgment application", the judge continued:-

"In his evidence before me, the defendant has sought to build up the involvement of the plaintiff in the summary judgment application in the period between 10 October 1996 and 24 December 1996. I do not accept the defendant's evidence as to those matters. I consider that the defendant's evidence generally lacked credibility and was unconvincing. He lacked forthrightness and at times he was evasive and misleading. I did not find him to be a truthful and reliable witness. I am satisfied that the defendant failed to discharge the responsibility which he had undertaken in accordance with his retainer to prepare the defendant's case in the summary judgment application in the South Australian proceeding and that his failure to do so was the sole cause of the adjournment of the hearing on 3 [a typing slip for 13] January 1997."

51. Thus in the County Court the trial judge reached much the same conclusion as had Lander, J.: that it was Mr. Birrell who bore the blame for the adjournment on 13 January 1997 of the summary judgment application in the South Australian proceeding. It does not follow, however, that on that account alone Mr. O'Doherty should have from Mr. Birrell the fees which he lost for the work he had done on that application before 13 January, particularly as it was Mr. Birrell and not he who had had primary responsibility for the conduct of that application for the defendants - and so we turn to the work which Mr. O'Doherty did.

55. The work done by Mr. O'Doherty is best considered in three parts, first by reference to a period ending on 24 December 1996. As already described, when Mr. O'Doherty appeared with Mr. Birrell for the defendants before Lander, J. on 6 September 1996, that was the last occasion on which the plaintiff was to appear in the proceeding before 13 January 1997. Between 6 September and 24 December 1996, Mr. O'Doherty's evidence was that he did not confer with Mr. Birrell in connection with the South Australian proceeding, although he did say that during that period he continued to see the defendant almost every day on a social basis and in the course of conversation the South Australian proceeding was discussed from time to time. As the trial judge found**,** O'Doherty's involvement in the proceeding after 6 September "was minimal up until 24 December 1996", the contact between the two barristers over the South Australian proceeding being at that time "of an informal nature" and "no more than part of ongoing social contact between two friends and colleagues, both of whom had an interest in the proceeding".

58. Of this period of "ongoing social contact" up until 24 December 1996, the plaintiff said this in his evidence (according to the trial judge):-

"In those discussions [between the two barristers] the defendant told the plaintiff on a number of occasions that he, the defendant, proposed to apply to Lander J to have the summary judgment application struck out as the defendant believed that it was ill-founded and the liquidator's case involved allegations of fraud against the defendants. The plaintiff was also told by the defendant in the course of their discussions that he was making various applications to Lander J concerning the South Australian proceeding and other matters involving the defendants."

62. As will be seen, it was an important feature of the plaintiff's case in this proceeding that the defendant "never gave him any details of the timetable fixed by Lander J for the summary judgment application, save that the defendant told him that the hearing was fixed for 13 January 1997". This was the evidence of the plaintiff at trial and despite Mr. Birrell's assertions in evidence to the contrary the plaintiff's evidence on the point was accepted by the trial judge. Subject to that, and within this framework of informal discussion, Mr. Birrell (the plaintiff said) spoke of progress. According to the reasons for judgment:-

"The defendant [Birrell] told him [O'Doherty] that the liquidator would not provide him with material which he needed to prepare the [defendants'] response to the summary judgment application; namely, the transcript of a public examination hearing and exhibits relating to that hearing which involved the defendants. The defendant told him that he had been in Adelaide in October 1996 to inspect the transcript. On several occasions the defendant told him that the timetable fixed by Lander J on 10 October 1996 had been overtaken by events."

By this last, that "the timetable ... had been overtaken by events", Mr. Birrell might well have meant no more than that such times as had been fixed by the judge had passed before all of the material which he was seeking was made available to him. Indeed this is suggested by what Mr. O'Doherty himself said in the affidavit he filed in the South Australian proceeding on the question of costs, the affidavit sworn on 27 January 1997 and to which we were referred in the course of argument. In paragraph 17 of that affidavit, Mr. O'Doherty recounted a conversation during this period in which Mr. Birrell spoke of a direction for affidavits as having "been overcome by events". The affidavit proceeded:-

"I asked him what he meant and he said the whole matter of the application was now in a state of uncertainty because of the defendant's failure [an obvious slip for 'plaintiffs' failure'] to provide the Transcript and exhibits of the public examination and the failure by [the liquidator's solicitor] to agree to fees."

68. That there were problems over gaining delivery of relevant material and over fees is borne out by other evidence too. Thus, during November Mr. Birrell made a number of applications to Lander, J., including for further discovery. One of these applications (Mr. Birrell was to remind Lander, J. on 13 January) was to have made available to him the transcript of the public examination of the directors, together with all of the exhibits. Apparently, although a portion had at some stage been made available for perusal, no copies were provided and it seems (from what was said to Lander, J. on 13 January) that it was only a day or so before 13 December that a copy of the transcript and all of the exhibits was made available - some 12 lever arch folders of the former and 42 volumes of the latter.

71. So far as concerns any work by him, Mr. O'Doherty said that during this period to 24 December he was not asked by Birrell to assist save in one respect. Again according to the plaintiff in evidence (as recounted in the trial judge's reasons for judgment):-

"The plaintiff stated that between September and November 1996 he was not asked by the defendant for any help with the summary judgment application, except that the defendant showed him an 82 page affidavit sworn by the liquidator ... on 2 September 1996 in support of the summary judgment application (Exhibit D) and asked him - that is, the defendant [a slip, we assume, for `plaintiff'] - to look at it in order to ascertain if any parts of it were inadmissible. He did so and made some notes concerning it. He did not charge a fee for perusing the affidavit. The last fee charged by him in connection with the South Australian proceeding prior to the work which was the subject of this proceeding and which commenced on 24 December 1996 was on 23 September 1996."

As the judge observed, the work done by the plaintiff prior to 24 December formed no part of the present claim, but the events of that time, and in particular the discussions between counsel, informed what was to follow.

76. We come, then, to the period from 24 December 1996 to 13 January 1997 during which the plaintiff did the work which does form the main subject of the claim by him in this proceeding. That work falls broadly into two: work on the transcript of the public examination and work on affidavits. As for the first, it was on a visit by Mr. O'Doherty to the defendant's chambers on 24 December that he saw a letter from the liquidator's solicitors approving legal fees "of up to $40,000 for the defendants in connection with the summary judgment application", and specifically, fees for the plaintiff and the defendant at $250 per hour for preparation and for the hearing on 13 and 14 January 1997. It was this visit by the plaintiff which precipitated a request for assistance. As recounted in the reasons for judgment:-

"The plaintiff stated that on 24 December he visited the defendant in the latter's chambers as a friend and in the course of his visit the defendant told him that the material connected with the public examination had arrived from Adelaide. There was a very large quantity of material. Again, the defendant told him that he would apply to have the summary judgment application struck out and that he would not have time to go through the transcript and exhibits before the hearing. The plaintiff offered to help the defendant by going through the public examination material and the defendant accepted the offer. They arranged to meet on 6 January. On 24 December the defendant told him that he had not done the affidavits in opposition to the summary judgment application and that he would do them in the week commencing 6 January."

80. Again the affidavit of Mr. O'Doherty of 27 January 1997 contains more detail. In paragraph 20 the deponent said this:-

"20.3 I asked Birrell [on 24 December] if he was sure he would be ready for 13 January 1997 and he assured me that he would be. I asked him if there was anything I could do and he again asked me to look at the Affidavit with a view to excluding any inadmissible parts. I told him I had done so and that I would provide him with a list of matters which I considered were arguably inadmissible. He also asked me if I could read O'Grady's transcript of evidence and exhibits given at the public examination. I collected 20 lever arch folders from Birrell and took them to my home. On Boxing Day I commenced reading the material. 20.4 Between 26 December 1996 and 6 January 1997 I spoke to Birrell several times and discussed O'Grady's evidence. Birrell told me he had read it and this was obvious because of his knowledge of its contents. He also told me he had read the transcript of evidence and exhibits of other witnesses. I believed Birrell had read all relevant material which would enable him to prepare all answering material for the Defendants."

The work done by the plaintiff, of examining transcript and exhibits, forms a considerable portion of the claim for fees in this proceeding.

85. As we apprehend it, the rest of the claim in the present proceeding is in relation to work done on affidavits. On 7 January 1997, according to the plaintiff, he met again with Mr. Birrell and asked him what had been done about obtaining affidavits. Mr. Birrell said he had done nothing. When asked why not, Mr. Birrell said that with hindsight he should have done something. In the following days, the plaintiff set to, it seems, and drafted affidavits in opposition to the application for summary judgment. According to Mr. O'Doherty's affidavit of 27 January 1997:-

"21.2 After my discussion with Birrell on 7 January 1997 I read all the exhibits to the Affidavit in order to assist Birrell drafting affidavits in reply. During my discussions with him, Birrell told me that he had read all the exhibits. This is contrary to his evidence at the hearing. ... 21.3 On 7 January 1997 Simionato told Birrell in my presence that Tropeano was concerned that the [Defendants'] case was not ready and that he would make an application to have the hearing of the application adjourned. Birrell told Simionato to tell Tropeano that there was no need to do so as the Defendant's case would be ready to proceed. 21.4 By Friday 10 January 1997 Birrell had not drafted any answering affidavits and he told me he was working on a submission to have the application struck out. I told him I could not believe that he was not going to prepare any affidavits and I then set about drafting the affidavits which were filed by the Defendants. Birrell could not provide me with any notes or details to assist with this task. I spoke to each deponent and did what I could to obtain instructions. When the drafts were prepared I asked Birrell to settle them and as far as I am aware he made no alterations. 21.5 During the course of Friday 10 January 1997 I asked Birrell how such a situation had arisen whereby the Defendants were hopelessly ill prepared. He said that he had been waiting for the transcript of the public examinations which did not arrive until about 16 December 1996. I reminded him that well prior to 16 December 1996 he had inspected such transcript and he had advised me of the substance of Joe's evidence as well as other witnesses' evidence and therefore such an explanation for the situation was not correct. ..."

It must have been with some speed, then, that Mr. O'Doherty drafted three affidavits, one to be sworn by Mr. Simionato, one by Joe Emanuele and another by Linton Emanuele; for no doubt these were the three affidavits filed on 10 January 1997 on behalf of the defendants in the South Australian proceeding. In the reasons for judgment under appeal, however, the trial judge said:-

"The plaintiff realised that [these three affidavits] were inadequate to meet the plaintiff's claims in the summary judgment application and that further preparation needed to be done. He described the summary judgment application as being hopelessly under-prepared for the defendants."

Despite their apprehended inadequacy, it was the plaintiff's fees for preparing these affidavits which, as we follow it, formed part of the loss and damage now relied upon in the claim for damages against the defendant.

92. To complete the story, it was on Saturday 11 January 1997 that the plaintiff learned for the first time of the details of the timetable fixed by Lander, J. on 10 October. It is worth setting out (albeit with a few obvious slips corrected) paragraph 22 of Mr. O'Doherty's affidavit of 27 January 1997; for its contents are consistent with the judge's description of the plaintiff's evidence in the reasons for judgment.

"22.1 On Saturday 11 January [1997] Tropeano faxed to me the outline of the Defendant's submission for the application. I read the document and realised that the Plaintiffs were relying on the failure to comply with His Honour's direction made on 10 October 1996. I also realised the work I had been asked to do by Birrell and had done on the objections to the admissibility of evidence had been a complete waste of time because of the requirement to give notice of objection by 2 December 1996. 22.2 I telephoned Simionato and told him that a serious matter had arisen and explained that we had not complied with any of the directions made on 10 October 1996, and that the idea [of seeking to] proceed with the application as far as possible on Monday 13 January 1997 and then applying for more time to file additional material would require a full and frank disclosure as to how the situation had arisen. It would require Birrell to explain to His Honour why the Defendants were not prepared. 22.3 Shortly after speaking to Simionato I spoke to Birrell and told him that the Plaintiffs were making an issue about non compliance with the directions made on 10 October 1996. He said that that direction was obsolete and had been `overturned by events'. He was not able to tell me what events except the late delivery of material. I asked him why he had not told me that objections had to be made as to the [admissibility] of evidence by 2 December 1996. He said he was not aware of this."

96. The judge's findings with regard to the plaintiff's learning of the details of the timetable were consistent with this evidence. Thus his Honour said:-

"I accept the plaintiff's evidence that the defendant informed him of the date for the hearing of the summary judgment application but the defendant did not inform him of dates fixed by Lander J on 10 October 1996 for filing of the [defendants'] affidavits or the filing of objections to the [plaintiffs'] material."

"I accept the plaintiff's evidence that it was not until 10 January 1997 or thereabouts when the liquidator's solicitors had indicated that they proposed to rely upon the defendant's failure to comply with the timetable that he became aware of the details of it which led to him angrily confronting the defendant over the position which he realised for the first time had arisen. I also accept the plaintiff's evidence that in conversations with the defendant the latter had consistently maintained that the timetable had been overcome by events and that he, the defendant, proposed to make an application to have the summary judgment application struck out."

102. What happened on 13 January 1997 may now be further elaborated. According to Mr. O'Doherty's affidavit of 27 January 1997, Mr. Birrell had accepted on 12 January that at the outset of the hearing before Lander, J. on the next day he should, in effect, make a clean breast of his failing to prepare properly; but in the event his submissions on 13 January did not proceed as the plaintiff was expecting. That led to the matter's being stood down, Mr. Birrell's retainer being terminated and his being called as a witness by Mr. O'Doherty in support of an application for an adjournment. Mr. Birrell very fairly made it plain when giving his evidence before Lander, J. that no blame at all could attach to the defendants themselves for the failure to prepare their case in opposition to the application for summary judgment: the blame lay solely with the legal advisers. Mr. Birrell told Lander, J. that as at 26 November, when the matter had last been before his Honour, he was still toying with an application to stay the summary judgment application, but he also told the judge that since receiving the liquidator's affidavit and the supporting material (voluminous though it was) he had, in effect, done nothing save to give a copy of the material to Mr. Simionato. He agreed, too, that although appearing more than once on applications during November, he had at no time suggested to Lander, J. that he needed more time or that he was suffering unfairly by reason of anything done by the judge or by the plaintiffs. In answer to questions put to him by Mr. O'Doherty, Mr. Birrell told Lander, J. that he had had the carriage of the matter for the defendants and that he had become aware of the timetable fixed by the judge shortly after 10 October (when, it will be recalled, only Mr. Tropeano had appeared). In the result, Lander, J. granted the adjournment sought, but on terms as to costs as already described.

106. It is convenient to consider the plaintiff's claim in negligence first and to approach the matter by reference to the plaintiff 's pleading, which was the further amended statement of claim filed in the course of the trial pursuant to leave granted. Paragraphs 1 to 10 contain allegations which serve to introduce what follows. The occupation of the parties is described, their retainers and the way in which, as between them, they agreed to share the services for which they were being retained by the defendants in the South Australian proceeding. What follows may be briefly described as raising, first, in paragraphs 11 to 17, the timetable laid down by Lander, J. on 10 October 1996 (and its disregard); in paragraphs 18 and 19, the duty of care allegedly owed by the defendant (upon which the plaintiff's claim depends); in paragraphs 20 to 22, the making by Lander, J. of the orders for payment of the plaintiff's costs (orders which, it is alleged, were made by reason of the defendant 's negligence); and in paragraph 23, the loss and damage (in the form of lost fees) allegedly flowing from "Birrell's negligence and breach of his duty of care". We shall treat incidentally of the pleading of loss and damage (when we deal with paragraph 14 and later when we deal with paragraphs 18 and 19), but we shall deal in more detail with each of the other three topics just identified. In our opinion there are valid criticisms to be made of each, with the result that on the evidence led at trial the plaintiff's claim properly failed.

110. Paragraph 11 alleges that the bringing by the plaintiffs of the application for summary judgment and paragraph 12 alleges the laying down of the timetable by Lander, J. on 10 October 1996. As stated earlier, it is a critical part of the plaintiff's case, at least as framed in the pleading, that Mr. Birrell did not tell Mr. O'Doherty of the details of the timetable laid down by Lander, J., and so much is pleaded in paragraph 13. At no time, it is said, did Birrell advise O'Doherty of the timetable, or bring it to his attention.

113. Paragraph 14 pleads the work done by O'Doherty "as agreed to between Birrell and himself". Both paragraph 14 and the particulars which are sub-joined to it refer to "the preparation of objections to the material prepared by the plaintiff" and the preparation of advice on what was inadmissible. No reference is made here to the preparation of the three affidavits that were filed on 10 January in opposition to the application for summary judgment, but when the loss and damage is particularised (in paragraph 23) by reference to fees earned day by day, the dates given commence on 24 December 1996 and (subject to one or two irrelevant additions[14]) end on 13 January 1997. Given the ambit of the evidence before the trial judge, these dates, from 24 December to 13 January, suggest in themselves that the work for which the plaintiff was claiming his fees went beyond the examination of documents for objections to admissibility and included the preparation of the affidavits.

116. Paragraph 15 contains a single allegation: "The timetable was not complied with." In paragraph 16 it is alleged that by reason of the defendant's failure to comply with the timetable, to advise the plaintiff of the timetable or to bring the timetable to the attention of the plaintiff, "it was not possible to make use of the work performed by O'Doherty". In paragraph 17 this is the allegation: "By reason of the matters [sic] referred to in paragraph 15 the value of the work performed by O'Doherty pursuant to his retainer was lost."

119. Before dealing with paragraph 17, we say something of a further allegation in paragraph 16. The conclusion that "it was not possible to make use of the work performed by O'Doherty" is ascribed in paragraph 16, not merely to the defendant's failure to advise O'Doherty of the timetable or to bring it to his attention, but also to the failure of Birrell to advise "the defendants in the [South Australian] proceeding" of the timetable or to bring it to their attention. In referring to that failure, paragraph 16 reflects a like allegation in paragraph 13, yet it is plain that the plaintiff has no case in that regard. There was no obligation on either of the two barristers to advise the defendants in the South Australian proceeding of the timetable, or indeed to bring it to their attention, given that when the timetable was laid down by Lander, J. on 10 October 1996, their instructing solicitor, Mr. Tropeano, appeared on behalf of the defendants. So much is alleged in paragraph 12 and, given that appearance, the timetable was sufficiently, through him, advised to, or brought to the attention of, the clients. In what follows we therefore treat any allegation of default in that regard as irrelevant. We simply note for completeness that Mr. Tropeano did not give evidence at the trial.

122. Paragraph 17 is different. In alleging that "the value of the work performed by O'Doherty pursuant to his retainer was lost", paragraph 17 appears to hark back to the allegation in paragraph 16 that, because of the failure of Birrell to comply with the timetable or to advise O'Doherty of it, it was not possible to make use of the work performed by O'Doherty. Yet in terms paragraph 17 refers back not to paragraph 16 but to paragraph 15 (the allegation that the timetable was not complied with). Either way, however, we suppose that it is clear enough that the plaintiff's case centres on non-compliance with the timetable and the fact that Mr. O'Doherty was kept in ignorance of its details. It would seem that, even though he had appeared on the application on 6 September which led to the setting of the timetable on 10 October when the application was dismissed, O'Doherty did not at any stage seek to inform himself of the details of the orders then made by Lander, J.

125. Now, it is true that according to the timetable set by the judge any affidavits in answer were to be filed by 11 November 1996 and any objections to admissibility taken by 2 December 1996. As already described, Mr. O'Doherty did some work on admissibility before 24 December but it was not work in respect of which he was now making claim against the defendant. What was in question was the work done in consequence of discussion between Mr. Birrell and Mr. O'Doherty on 24 December 1996 and thereafter, and it is in respect of such work that the plaintiff, in evidence at the trial, "said that he would not have done the preparation work which he performed after 24 December if he had known of the timetable set by Lander J". If that truly reflected the position of the plaintiff, then we think it ill-founded. Mr. Uren submitted to us that the timetable fixed by the judge on 10 October was in truth a side issue, of no importance, and we agree.

128. Mr. Uren submitted that, timetable or no timetable, the work which was undertaken by Mr. O'Doherty after 24 December 1996, would have been done anyway, and whether or not the times fixed by the judge had already passed. The assumption underlying the plaintiff's case is that once the time fixed had passed for the doing of any act requiring work on the part of those advising the defendants in the South Australian proceeding, there was no point in the doing of that work, or indeed of any part of it. We agree with Mr. Uren that that is simply not so. If a party is directed by the Court to file an affidavit or to notify an objection, to do so late is better than not to do it at all, if an indulgence is then to be sought. So too, if work is required of that party's legal advisers, the case for an indulgence is stronger if the work has been undertaken, even if not completed, by the time of the application. As Mr. Uren said, better late than never. On that footing, the mere expiry of the times fixed by the judge on 10 October did not per se render altogether futile the work which Mr. Birrell requested of Mr. O'Doherty. If, as Mr. O'Doherty said, he would not have undertaken the work had he known that the times fixed by the judge on 10 October had already passed, Mr. O'Doherty would, we think, have misunderstood his position and in particular would have misunderstood the significance of the work to any application on 13 January that the hearing be adjourned. The judge accepted Mr. O'Doherty as a witness of truth and we do not suggest that Mr. O'Doherty was not unaware, until 11 January, of the detail of the timetable fixed on 10 October. But it does not follow that the work which the plaintiff did should not then have been asked of him or that, once done, that work must have been of no value at all to the defendants in the South Australian proceeding. Nor does it follow that, had the plaintiff known of the timetable, he would have been justified in refusing to undertake the work which he performed - and in undertaking that work Mr. O'Doherty would obviously have been at risk of not gaining his fees.

131. The timetable apart, it is important to observe that in doing the work he did Mr. O'Doherty was, at least in part, acting of his own motion. The problem that would have confronted him, once he learnt of Mr. Birrell's default in preparing properly the defendants' opposition to the application for summary judgment, was no more and no less than that confronting any barrister who has deal with an unexpected emergency which is not of his own making. The costs of any work done after the expiry of a time limit are commonly liable to disallowance, particularly when, as Mr. Birrell himself made plain to Lander, J., the lateness cannot be ascribed to any fault of the client. The plaintiff well knew that that was so in this instance: he was clear that Mr. Birrell was the one, and the only one, to blame for the failure to prepare adequately for the hearing on 13 January, the responsibility for which was his according to their distribution of the work between them. Had Mr. O'Doherty known of the timetable, he might have pressed Mr. Birrell sooner to prepare more fully; but if Mr. Birrell had remained in default, then Mr. O'Doherty might well have undertaken the work for himself - as he did - and if that happened after the times fixed by the judge had expired O'Doherty must have been at risk for his fees. Yet his duty to his client would surely have demanded as much, as witness the work which Mr. O'Doherty did of his own motion on the three affidavits. Discovering late in the piece that there were no affidavits in opposition, he set to and prepared them himself, which betokens his recognition of the obligation he had undertaken to the clients in accepting a retainer and which was to be discharged, irrespective of whether it was at the risk of personal loss. The possible conflict for him between duty and interest is clear. Mr. O'Doherty did the work on the affidavits not because of any request from Mr. Birrell; indeed, as between the two barristers, it was not even the former's province to prepare the defendants' case on the application for summary judgment. O'Doherty did that work because, as he saw it, he might thereby bail the clients out of a difficulty which Birrell had created by failing to act. Very properly he gave no thought then, we have no doubt, to the recovery of his fees.

134. In so acting, Mr. O'Doherty acted according to the highest traditions of the Bar. None the less, it remains the fact that the work done, particularly on these three affidavits, was not done at the request of Mr. Birrell: it was done because of Mr. O'Doherty's own assessment of the position and his sense of obligation to the clients by reason of his own retainer. We do not know whether the preparation of those three affidavits influenced Lander, J.: for all we can tell now, the outcome on 13 January would have been just the same, whether those affidavits were done or not. (For instance, Lander, J. apparently considered that the real issues were not being addressed anyway, as he said to counsel subsequently engaged.) In all the circumstances, and lacking evidence in particular of the impact on 13 January of the affidavits prepared by the plaintiff, can it be said that he should now be compensated by Mr. Birrell for his loss of fees in working on those affidavits for nothing? Of course Mr. Birrell's own default was an event without which there would have been no predicament from which Mr. O'Doherty sought to rescue the clients, so far as he could in the time available: yet, so far as relevant to the chain of causation which the plaintiff must establish between Mr. Birrell's defaults and his own loss of fees, it might be very difficult not to regard Mr. O'Doherty's own conduct as significantly independent. The problem for the plaintiff is only exacerbated when it is recalled that for quite some time Mr. Birrell was of opinion that an application to strike out the plaintiffs' application might be warranted. In itself that might have been an error of judgment of the sort to which any professional is liable, but it is not relied upon as negligence occasioning loss to Mr. O'Doherty.

137. We have focussed on the three affidavits filed on 10 January 1997 because they were prepared very late and on the eve of the plaintiff's learning of the details of the timetable fixed on 10 October. The reading of the documents between 24 December and 7 January is in a different category, being work performed by Mr. O'Doherty when Mr. Birrell asked for assistance in that regard. In so far as the plaintiff now asserts that he would not have done that work had he known of the timetable, we think for the reasons already given that he overstates the significance of the timetable; the work which he did was not all wasted simply because the time for taking objection had passed. To identify what was objectionable on the grounds of admissibility was work that might have assisted in meeting the case put by the plaintiffs and, indeed, in making the case for an adjournment, if one was to be sought on 13 January. There is some force, we think, in Mr. Birrell's view that the times fixed by the judge on 10 October had, to some extent at least, been "overtaken by events" (as he was wont to put it), if only for want of much of the relevant material. That is not to say that on that score the parties were simply free to disregard the order made on 10 October, but the want of relevant material, if established, might well have assisted in the gaining of extra time. How and when to gain the extra time was essentially a matter for Mr. Birrell who, as between the two barristers, had the conduct and management of the defendants' case on the application for summary judgment. Again the mere passing of the time fixed by the judge did not cause the work done by Mr. O'Doherty on the transcript to be of no value; nor, if caused at all, was it caused by Mr. O'Doherty's remaining in ignorance of the details of the timetable laid down.

140. It follows in our opinion that the allegations in paragraphs 15, 16 and 17 do not advance the plaintiff's case. Rather they reflect a misunderstanding of the position to the extent that, when taken together, they seek to identify as a cause of the plaintiff's loss Mr. Birrell's failure to tell Mr. O'Doherty of the details of the timetable laid down by Lander, J. on 10 October 1996.

The orders of Lander, J. (paragraphs 20 to 22)

144. Of course the immediate cause of the plaintiff's loss of fees for work done after 24 December 1996, whether at the request of Mr. Birrell in relation to admissibility or of his own motion when he sought to save the day for the defendants on 13 January by the filing of late affidavits, was the undertaking exacted by Lander, J. from the three legal practitioners who appeared for the defendants on 13 January, that none of them seek to recover fees for work done on the application for summary judgment to date. In seeking an adjournment as he did on that day, Mr. O'Doherty was no doubt acting in the best interests of the clients if, as he considered, their opposition to the application was hopelessly under-prepared. But in applying for the adjournment he was seeking an indulgence and accordingly he or his clients were properly put on terms as to the payment of the plaintiff's costs. So much might reasonably have been foreseen when it was decided to make the application for the adjournment. On 13 January, Lander, J. exacted an undertaking in respect of the payment of those costs, and it was not that undertaking (or indeed the subsequent order against Mr. Birrell) that occasioned any loss to Mr. O'Doherty. What occasioned Mr. O'Doherty's loss was the undertaking by the three practitioners not to seek costs for themselves. That undertaking was given only after the judge had given all three practitioners the opportunity of being heard: the transcript of 13 January shows that each of them spoke at some stage. In requiring the undertaking (which was in terms not to claim fees from the defendants), the judge was doing little more than acceding to a submission to that effect from counsel for the plaintiffs, who, from the transcript, was obviously concerned about any further dissipation of the defendants' assets except for good cause, given that the proceeding had been brought to recover those assets for the plaintiffs. The judge's irritation at the costs so far incurred with little result was plain: it may be said that his Honour, too, was concerned that the defendants' assets not be dissipated without good reason. And the judge saw little reason for the defendants' paying costs to date to the three practitioners then appearing, given his current assessment of the state of their case.

147. It is important that the judge's order for an adjournment only upon undertakings depended, at least in part, upon his Honour's own assessment of the position. It is noteworthy that, even with the change of counsel that followed, the judge was to remain of much the same view even some weeks later: as he saw it, the real issues in the plaintiff's case had still not been properly addressed. The fault in that regard may well reflect an error of judgment on the part of the practitioners retained for the defendants, but that does not necessarily mean any want of due care. It is true that Mr. Birrell accepted blame for the adjournment that was required on 13 January and that he freely confessed to oversight and a failure to act when perhaps he should have. But at the end of the day it must have been the judge's own assessment of the position which led to his denying to the three legal practitioners any payment out of the defendants' assets for work done up until 13 January - and, so far as we can tell from the material before us, there was little real opposition to that course. No doubt all three were only too happy to see that the adjournment was obtained for their clients, irrespective of their personal interest in recovering payment for work done. Again, that might be argued as serving to interrupt any causal link between, on the one hand, the negligence of the defendant (if such it was) and, on the other, the claim by the plaintiff for his loss of fees.

150. At this point we turn back to the plaintiff's pleading to observe that, despite the obvious and direct causal link between that loss of fees and the undertaking over their own fees required of the three practitioners by Lander, J. on 13 January 1997, no reference is made in the pleading to that undertaking. Instead the reference is to the undertaking required from the three practitioners for payment of the plaintiffs' costs of the adjournment and the order for the payment of those costs by Mr. Birrell which was made on 4 July 1997. Paragraphs 20, 21 and 22 of the pleading read as follows:

"20. On 13 January 1997 Justice Lander adjourned the application and ordered the costs in the application of the plaintiffs to the proceeding to be met on an indemnity basis by a party other than the defendants to the proceeding (`the first order'). 21. On 4 July 1997 Justice Lander further ordered Birrell bear sole responsibility in relation to the first order on the application (`the second order'). 22. Justice Lander made the first order and the second order as a result of the negligence of Birrell."

154. It may be accepted that Justice Lander ordered that the plaintiff's costs be paid, on an indemnity basis, "as a result of the negligence of Birrell" as alleged in paragraph 22, but (if it matters) we should have thought it the negligence of Birrell with respect to the clients (the defendants in the proceeding) rather than the negligence of Birrell with respect to the plaintiff, a point which is only emphasised when regard is had to the particulars subjoined to paragraph 22.

157. Those particulars of negligence include Birrell's "failing properly or at all to prepare for the application [for summary judgment]", his "failing to devote due time and diligence to the defendants' preparation for the application", and the like - particulars which all relate directly to Birrell's failure to discharge his obligations to the clients (whether or not they bear also upon a possible breach of a duty owed by him to Mr. O'Doherty). The particulars under paragraph 22 conclude by referring also to Mr. Birrell's "failing adequately or at all to advise O'Doherty [or the defendants in the proceeding] of the existence of the timetable set by Justice Lander for the application". We have said already that the plaintiff has no case arising out of any alleged failure to advise the defendants: Mr. Tropeano was present when the timetable was laid down. Failing to advise Mr. O'Doherty of the existence of the timetable is another matter, but it was not causally linked, for the reasons already given, to any loss of fees by O'Doherty. It was perhaps linked to Mr. Birrell's defaults in relation to the clients and that was in turn linked to the orders made for the payment of the plaintiff's costs, as alleged in paragraphs 20 and 21. But the undertaking required by the judge on 13 January in respect of the plaintiffs' costs and the subsequent order made for the payment of those costs by Mr. Birrell were not causally linked to any loss of fees by the plaintiff - and on that account paragraphs 20, 21 and 22 do not appear to us to assist the plaintiff at all.

161. What is left of the further amended pleading comprises the bare bones of a claim in negligence: paragraphs 18, 19 and 23. Paragraphs 18 and 19 read as follows:-

"18. At all times material and save for the work undertaken and performed by O'Doherty and referred to in paragraph 13 herein, Birrell was retained to attend to and undertook to be responsible for all preparation necessary to the getting up of the application for the defendants in the proceeding. 19. At all times material Birrell owed O'Doherty a duty of care to take reasonable care to prevent financial loss to him.

It can be seen that paragraph 18 recognises in Mr. Birrell the obligation to attend to "all preparation necessary" to oppose the plaintiffs' application for summary judgment. That is how we interpret paragraph 18 and it confirms what we have already said[15]: namely, that Mr. O'Doherty chose to intervene, in order to save the day if he could, when he found that the affidavits had still not been prepared. Paragraph 23 has already been described: it pleads loss and damage sustained by O'Doherty "by reason of Birrell's negligence and breach of his duty of care" and the loss and damage is quantified by fees accruing on specified dates on and between 24 December 1996 and 13 January 1997. It is true that to this was added a day's fee on 27 January 1997 for "Drawing affidavit", but as this was presumably for Mr. O'Doherty's own affidavit on the question of costs before Lander, J. it was, we suppose, claimed only as consequential loss. There was also added the relatively minor sum of $200 for "accommodation/travelling" on 4 August, but the judge noted this as "not pursued by the plaintiff". For present purposes, these two additional items are best ignored.

166. The allegation of a duty to take reasonable care to prevent financial loss is extraordinary given that the duty was said to have arisen as between two barristers jointly retained in the same proceeding for the same clients. It is true that the trial judge was in no doubt about the defendant's neglect of his obligations. He said in the reasons for judgment:-

"In my view, the defendant failed totally to fulfil his obligations to the defendants under his retainer in relation to the summary judgment application. I am unable to say whether his failure to do so was due to lack of diligence or incompetence or whether it occurred simply through him being out of his depth or a combination of those matters."

But that was neglect by Mr. Birrell of his obligations to the defendants in the South Australian proceeding. As already indicated Lander, J. too was doubtless of like mind when he ordered Birrell alone to pay the defendants' costs of the adjournment, fixed at $9,780. But to say as much does not answer the question whether Mr. Birrell owed to Mr. O'Doherty a duty to take care not to cause him financial loss as the two of them went about performing their tasks pursuant to the retainer that each had accepted for the defendants in the South Australian proceeding. In our opinion the trial judge was correct to conclude that no such duty of care could arise between co-counsel retained to represent the interests of the same clients in the same litigation.[16]

171. For many years it has been the practice for multiple counsel to be retained to represent the interests of the client in the same matter. It has never before been suggested that where such circumstances exist, each owes a duty of care to the others to so conduct himself or herself in representing the interests of the client as to avoid the foreseeable risk of causing financial harm to the others; and indeed counsel on this appeal were not able to point to any authority suggesting that such a duty existed. It is, of course, true to say that the categories of relationships in which a duty of care can arise are not closed. Nevertheless the fact that the category of relationship with which this case is concerned has not been held to attract a duty of care, whilst not determinative, is significant: Agar v. Hyde [17] per Gleeson, C.J. It is, we think, not surprising that no such duty has been held to exist between co-counsel jointly retained to represent the interests of the same client, if only because such a duty has the potential to conflict with the barrister's obligation to the client, particularly if, as was said in Giannarelli v. Wraith[18], the barrister's primary responsibility is always to the court and the due administration of justice. The potential conflicts which could arise were the subject of much debate during the course of argument on the hearing of this appeal. As Gaudron, J. pointed out in Hill v. Van Erp[19]:

"... there can be no duty of care owed to a third party if the duty asserted is inconsistent with the duty owed to the client or if the solicitor is obliged to act exclusively in his or her client's interests."

175. The law does not readily create or countenance conflicting duties of care[20]. The duty of co-counsel, retained to represent the interests of the same client in the same litigation, is to serve the interests of the client. They act as a team in discharging that duty and the relationship of each is primarily with the client, not with each other. It would, it seems to us, detract from the obligations which separately and together they have to the client if co-counsel, in the course of discharging those obligations, were also required to discharge a duty to each other of the type contended for. There are many things which counsel might, or might not, do in pursuit of the client's interests which could have an impact upon the ultimate discretion as to costs. If counsel is required to have regard to the potential impact of what he or she does upon the fees recoverable by other counsel, then, to that extent, the client's interests suffer. (As Mason, C.J. pointed out in another context, it is the potential impact that can matter[21].) Reduced to the lexicon of the law relating to duties of care, the relationship of counsel commonly representing the interests of the same client is not one where each is required to have in contemplation the potential financial harm to others when discharging the duties commonly owed to the client. Counsel assume their respective obligations to the client voluntarily, well aware that the interests of the client are to be pursued regardless of whether reward is returned to them in the form of fees. The course of litigation is notoriously unpredictable and the recovery of fees uncertain, particularly where the award of costs is dependent upon the exercise of the court's discretion. In such a relationship, it cannot, we think, be said that one counsel is in any relevant sense "vulnerable" to the activities of the other or that one is "reliant" upon the other to save him or her from financial harm[22].

178. The present case affords an example of the problems arising if the barrister is to owe such a duty to his colleague. Mr. Birrell, confronting his own defaults before 24 December 1996, must have asked himself whether he should seek assistance from Mr. O'Doherty. It was in the interests of the client that such assistance be obtained, and as soon as possible; yet, if Mr. O'Doherty's claim in this proceeding succeeds, it must be on the basis that, having fallen into default himself, Mr. Birrell was able to seek assistance from his colleague, albeit that the two were briefed together, only on the footing that he (Birrell) would have to answer for the fees of his colleague. That the one should in effect be underwriting the fees of the other is a novel suggestion, so far as we are aware. It would create serious inhibitions upon leading counsel's freedom to direct a junior colleague, if the former was at risk of underwriting the latter's fees if subsequently it was ruled, perhaps in the light of hindsight, that the senior's direction to the junior had been unjustified or unreasonable. Such considerations simply reinforce the conclusion that no duty exists such as is now claimed.

181. Accordingly, we have no hesitation in rejecting the plaintiff 's invitation to this Court to adopt the "robust" approach and to say now that the law does recognise a duty of care between co-counsel who are retained to represent the interests of the same client. Indeed, as was pointed out in argument, the problems raised by recognising such a duty as between co-counsel might be seen to exist in relation to co-workers in other fields, too. Mr. Uren submitted that no such duty as was now alleged could be thought to arise between, say, one subcontractor and another subcontractor working on the same building site; each might owe the other a duty to take reasonable care not to cause the other physical injury, but not (it was argued) financial loss. Similarly as between the surgeon and the anaesthetist engaged for the one operation, it could surely not be said that the latter was obliged to the former to take reasonable care not to cause, by conduct, financial loss to the other (whatever the position in relation to physical injury). But these other cases need only be mentioned; they do not fall for decision. Suffice it to say that we see no error in the trial judge's rejecting here any such duty of care as is alleged in paragraph 19 of the plaintiff's pleading.

184. Having arrived at our conclusion that there is no duty of the kind alleged here, we would add that in our opinion there are strong policy interests, grounded in the ethics of the profession, which militate against the existence of the duty for which the plaintiff contends. For the law to encourage co-counsel to sue one another to recover what they regard as their full entitlement to fees will inevitably lead to a loss of confidence by the public in the profession, not least by provoking a species of satellite litigation calling into question the manner in which the principal litigation was conducted but at the same time without altering its result. The trial judge referred in passing to such considerations when he said in the course of his reasons for judgment:-

"Policy considerations in relation to expanding the law of negligence were adverted to in Esanda Finance Corporation Ltd. v. Peat Marwick Hungerfords[23] by McHugh J. [142 A.L.R.] at pages 781 to 787, and by Gummow J, at pages 797 and 798. At least some of those considerations have application in this claim. Further, although the point was not argued before me, it is arguable that public policy considerations of the kind considered by the High Court in Giannarelli & Others v. Wraith & Others [1988] HCA 52; (1988) 165 CLR 543, concerning claims of negligence against barristers have application in this case. It is also arguable that the concept of a barrister suing another barrister in negligence is not consistent with the principle laid down by the High Court in Giannarelli v. Wraith; namely, that at common law a barrister cannot be sued by his 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."

188. It is perhaps surprising that the immunity established in Giannarelli did not figure in the argument before us. Mr. Monotti for the plaintiff did submit that the trial judge had misled himself in the passage just quoted by treating the policy considerations canvassed in Giannarelli as bearing upon the issues before him; yet we see no error there. One need only refer to what was said by Mason, C.J. in Giannarelli[24] to see how similar in this respect the one case is to the other. Indeed the plaintiff is in something of a dilemma. If Mr. Birrell is immune from suit by the clients for his dereliction of duty in the preparation of their case in opposition to the application for summary judgment, there is a powerful argument that he should not be exposed either to suit at the instance of his colleague; in many respects the considerations telling against the first tell also against the second. On the other hand, if for any reason Mr. Birrell is not immune from suit in respect of the work he undertook for the defendants in the South Australian proceeding, the underlying duty of care owed by Birrell to the clients might conflict with the duty of care which must have been owed at the same time to O'Doherty, if the latter is to have the right to sue the former in negligence - and that could attract directly the policy of the law against conflicting duties, to which Gaudron, J. referred in Hill v. Van Erp[25]. But immunity from suit was not argued generally[26] and so we say no more about it.

191. Two things remain for mention. First, there was the plaintiff 's attempt to amend his notice of appeal. As soon as the appeal was called on for hearing, the plaintiff applied for leave to amend the grounds set out in the notice by adding (inter alia) a new ground (s) which, according to his counsel, was intended to assert that questions of proximity and reliance in particular had not been fully or properly considered by the trial judge in arriving at his conclusion that there was no relevant duty of care in this instance. In our opinion the addition of the further ground (s) would not assist the plaintiff in any way and therefore we refuse leave to make that amendment.

194. Secondly, the plaintiff sought in argument to rest his claim in negligence on negligent misstatement. In the Outline of Argument submitted to the court prior to the hearing, the plaintiff contended that there was error below in that "his Honour failed to recognise that the claim in negligence was in essence a claim based upon a negligent misstatement of fact by Birrell to O'Doherty". When this drew from the defendant the objection that no such case had been pleaded, nor had it been argued below, the plaintiff applied for leave to amend the further amended statement of claim in order to allege negligent misstatement. Mr. Monotti, who had not been counsel below, frankly conceded that this case had never been put to the trial judge but he submitted that such a case was none the less established on the evidence, according to the findings that the judge had made. Mr. Uren, however, submitted (with some justification) that had such a case been raised at trial it must have affected the evidence and, as the application was made so late, this Court refused the plaintiff leave to amend his pleading. In the result, the plaintiff did not persist in arguing negligent misstatement, but it is of passing interest that at least counsel saw his client's case as being "in essence" a claim resting on a basis not argued at trial.

197. In summary, we think that the plaintiff has not demonstrated error below. As we said earlier, we think that the pleading was inadequate in more than one respect. The plaintiff faced significant difficulty on the facts in establishing the necessary causal link between the loss relied upon and any breach of duty by the defendant, even supposing that there was a duty as alleged. In pleading the cause of his loss the plaintiff was mistaken in seeking to link that loss to the defendant's failure to inform him of the details of the timetable or the order of Lander, J. for the payment of the costs of the plaintiffs in the South Australian proceeding: neither was causally linked to the loss of fees relied upon in this proceeding. Whether these points would be fatal to the plaintiff's claim is another matter: that is something we need not, and do not, decide. Of most importance, in the circumstances of this case there simply was no duty imposed upon the defendant to take care to guard the plaintiff from financial loss. That was the basis upon which the judge concluded that the plaintiff's claim in negligence failed and that is the basis upon which the plaintiff's appeal on negligence fails also. The other points we have raised, if determinative at all, would go only to reinforce that conclusion. Much of what we have said in analysing the pleading does, however, serve to emphasise that the duty which is owed by counsel is owed to the client, not to each other.

201. The plaintiff's claim for fraudulent misrepresentation, it will be recalled, was added to the plaintiff's pleading in the course of the trial. The claim was dealt with only briefly in the reasons for judgment. The judge said this:-

"There is evidence before me from the plaintiff, which I accept, that at various times between 6 September 1996 and 13 January 1997 the defendant made representations to the plaintiff in numerous conversations and by conduct as to the matters referred to in paragraph 24(a) to (e) of the further amended Statement of Claim. However, I am not satisfied that the representations, or any of them, were made by the defendant with the necessary element of dishonesty. For the plaintiff to prove his case in deceit, he must prove to the standard referred to in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that the plaintiff made the representations with the knowledge that they were false; that is to say, they must have been wilfully false or made recklessly in the absence of any genuine belief that they were true and with the intention that they should be acted upon by the plaintiff in the manner which resulted in damage to him. I am not satisfied as to those matters. I consider that the evidence falls well short of establishing that the representations were made with a fraudulent intent by the defendant."

205. In argument before us, there was much debate about precisely what was meant by this last sentence. In the passage just quoted his Honour correctly identified the elements necessary to such a case in deceit: that the plaintiff made the representations with the knowledge that they were false (that is, knowing that they were false or making them recklessly in the absence of any genuine belief that they were true) and with the intention that they should be acted upon in the manner which resulted in damage[27]. For Mr. O'Doherty it was contended by reference to the last sentence that the judge fell into error in seeking, and failing to find, something more, over and above the elements just described - namely, "a fraudulent intent" on the part of the defendant. But we do not read the last sentence in that way; the judge was not there adding something more to the elements which he had just described, and described correctly. There were five representations relied upon in paragraph 24(a) to (e) of the further amended statement of claim and they were different in kind. What was true of one of them might not have been true of another. In our opinion, in the last sentence of what has just been quoted the judge was expressing himself, shortly, as not satisfied that the plaintiff had discharged the onus upon him of proving his case in deceit[28]. His Honour was not satisfied that all of the elements, necessary to such a case in deceit, had been established in relation to the representations, or any of them.

208. The point can be made by considering in more detail the five representations actually relied upon in paragraph 24 of the pleading. The first was that Mr. Birrell was attending to "all necessary matters in connection with" the application for summary judgment; the second, that any directions given in connection therewith "had been overcome by events"; the third, that the defendants' objections and defence "would be in a position to be put on 13 January 1997" (whatever that might mean); the fourth, that he, Mr. Birrell, had prepared and would make an application to have the plaintiffs' application for summary judgment struck out; and the fifth, that he, Birrell, was not aware that 2 December 1996 was the date by which any objections to admissibility had to be taken. These, as we have said, are very different in kind. For instance, the fifth, that Mr. Birrell was not aware that 2 December 1996 was the date by which objection had to be taken to admissibility, was something said on Saturday 11 January, according to the evidence[29]: as such, it was rather an explanation offered by Mr. Birrell than an inducement to action on the part of Mr. O'Doherty. By then, the work on the transcript was well and truly over and the affidavits had been filed the day before (according to Lander, J.[30]).

211. As for the first, third and fourth of the representations mentioned in paragraph 24, these were to the effect that matters were in hand, in one way or another, and that all would be ready in time. To say as much was not necessarily to speak falsely or with relevant recklessness. When coupled with Mr. Birrell's frequent assertion that the timetable "had been overcome by events" and that he was considering an application to strike out the plaintiffs' application, it cannot be said that the judge, who had the considerable advantage of seeing and hearing the witnesses, erred in finding that the plaintiff had not established all of the elements necessary to an action in deceit. Mr. Birrell may have been guilty of an error of judgment: he may have been putting too much reliance on the late delivery by the plaintiffs of the relevant transcript and exhibits, but the fact remains that those documents were delivered late and, if Mr. Birrell attached too much significance to such late delivery, that could perhaps explain the representations, rather than demonstrate that they were made falsely or with relevant recklessness. So far as the first representation related to what Birrell was then doing, it might be said (subject to the value judgment inherent in the word "necessary") that he must have known what he was and was not doing; but the acts of reliance pleaded and urged in argument were in essence doing the work, whereas the natural tendency of the alleged misrepresentation would have been to induce inaction.

214. It is important that the plaintiff's case in deceit depended very much upon questions of fact and the judge was the only one in position to see and hear the witnesses. Of course that is not fatal to a case on appeal, even in deceit[31], but it must make a plaintiff's task considerably more difficult.[32] For instance, whether or not Mr. O'Doherty established, to the satisfaction of the trial judge, that he worked on the transcript in reliance upon representations to the effect that matters were in hand and all would be ready in time, it was another thing whether he was induced to act on the faith of the representation that the directions given by the judge on 10 October "had been overcome by events"; for (as the judge accepted) Mr. O'Doherty did not learn of the detail of the timetable "until 10 January 1997 or thereabouts"[33]. Moreover, so far as the work on the affidavits is concerned, on Mr. O'Doherty's own evidence that was work undertaken by him only late in the piece in consequence of his learning of the defaults of Mr. Birrell. Certainly, in setting to and preparing the three affidavits filed on 10 January Mr. O'Doherty could not be said to have been acting in reliance upon any false misrepresentation of the position by Mr. Birrell.

217. In short, we see no basis for finding error on the part of the judge. In concluding as he did, his Honour did not mean that each of the five very different representations mentioned in paragraph 24 foundered as a cause of action for the same reason. Rather, different considerations applied to each and in the upshot the judge was not satisfied, as to any of them, that the plaintiff had established all of the elements necessary to an action in deceit. We detect no error in that.

220. Again, two matters remain for mention. First, we record that it was not argued, either at trial or on appeal, that counsel's immunity from suit in respect of any complaint of "action or inaction prior to the commencement of the hearing" which, though done out of court, "concerns a matter which was intimately connected with work ultimately done in court"(as to which see Keefe v. Marks per Gleeson, C.J.[34]) extended to the plaintiff's case in deceit: consider Boland v. Yates Property Corp.[35] per Callinan, J., contra per Kirby, J. Secondly, there was the other aspect of the plaintiff's application to amend which we mentioned in paragraph [51]. As part of that application (which was made as soon as the appeal was called on for hearing) the plaintiff sought leave to amend the notice of appeal by adding a new ground (t), which we were told by counsel was intended to raise more specifically complaints about what the judge said in relation to fraudulent misrepresentation. For the reasons we have given, we see no error in what was his Honour said, whether or not the new ground is regarded; and so, as before, we refuse the leave to

224. It follows from the foregoing that the appeal must be dismissed.

[1] Addstead P/L v. Simionato Holdings P/L [1997] SASC 6117 para.28.

[14] We deal with the extra items in paragraph [43].

[16] The trial judge said that in arriving at his conclusion he had referred to Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549, Council of the Shire of Sutherland v. Heyman [1985] HCA 41; (1985) 157 C.L.R. 424, Hawkins v. Clayton (1988) 164 C.L.R. 539, Caparo Industries PLC v. Dickman [1990] A.C. 605, Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243, Burnie Port Authority v. General Jones Pty. Ltd. [1994] HCA 13; (1994) 179 C.L.R. 520, Caltex Oil (Aust) Pty. Ltd. v. The Dredge "Willemstad" (1976) 136 C.L.R. 529, Hill v. Van Erp (1997) 188 C.L.R. 159, Esanda Finance Corp. Limited v. Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 C.L.R. 241, W.D. and H.O. Wills (Aust) Limited v. State Rail Authority of New South Wales (1998) 43 N.S.W.L.R. 338, Pyrenees Shire Council v. Day [1998] HCA 3; (1998) 192 C.L.R. 330, Romeo v. Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431, Yates Property Corp. v. Boland [1998] FCA 8; (1998) 85 F.C.R. 84 (in the Federal Court) and Katter**,** "Duty of Care in Australia; Is the Fog Lifting?" (1998) 72 A.L.J. 871.

[17] [2000] HCA 41; (2000) 74 A.L.J.R. 1219 at 1223. Cf. Perre v. Apand Pty. Ltd. [1999] HCA 36; (1999) 198 C.L.R. 180 at 216-7 per McHugh, J. and Crimmins v. Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 C.L.R. 1 at 34.

[18] [1988] HCA 52; (1988) 165 C.L.R. 543 at 555 per Mason, J. at 579 per Brennan, J.; cf. at 596 per Dawson, J.

[19] (1997) 188 C.L.R. 159 at 196-7. See also 188 C.L.R. at 167 per Brennan, C.J.

[20] cf. Oakley Thompson & Co. v. Canik [1998] FamCA 80; (1998) 145 F.L.R. 438.

[22] Perre 198 C.L.R. at 218-220 per McHugh, J.

[23] [1997] HCA 8; (1997) 142 A.L.R. 750; see also [1997] HCA 8; 188 C.L.R. 241.

[26] It remains to be seen what, if any, consequences will flow in Australia from the decision in July last year of the House of Lords in Arthur J.S. Hall & Co. v. Simon [2000] UKHL 38; [2000] 3 W.L.R. 543.

[27] Krakowski v. Eurolynx Properties Ltd. (1995) 183 C.L.R. 563.

[28] As to proof, see Neat Holdings Pty. Ltd. v. Karajan Holdings Pty. Ltd. [1992] HCA 66; (1992) 67 A.L.J.R. 170.

[31] For example Krakowski 183 C.L.R. 563.

[32] Dearman v. Dearman [1908] HCA 84; (1908) 7 C.L.R. 549 at 553.

[34] (1989) 16 N.S.W.L.R. 713 at 719.

[35] [1999] HCA 64; (1999) 74 A.L.J.R. 209 at 280-1 per Callinan, J., contra at 241 per Kirby, J; compare at 228 per Gleeson, C.J., at 230-1 per Gaudron, J. and at 246 per Hayne, J.