Owens v Galvin [2014] VSCA 33

BANKRUPTCY - Advice concerning options to terminate bankruptcy - Bankruptcy Act 1966, ss 73, 153A, 153B and 179.

COURTS AND JUDGES - Bias - Actual bias - Apprehended bias - No allegation of bias made at trial - Appellant's allegations of bias without foundation.

1 Suzann Janet Owens, the appellant, was a practising solicitor when a sequestration order was made against her estate on 10 May 2005.[1] The appellant remained a bankrupt until her bankruptcy was annulled in October 2010 pursuant to s 153A of the Bankruptcy Act 1966 ('the Act'). Michael Galvin, the respondent, is a barrister, who at all relevant times practised in the area of bankruptcy and insolvency.

2 On 16 May 2005, the respondent was engaged by the appellant's then solicitors to prepare an application to set aside the sequestration order that had been made against the appellant on 10 May 2005. Subsequently, the respondent was engaged from time to time over the following months to provide advice, draft documents, and to appear for the appellant at certain court hearings. The last effective involvement of the respondent in the appellant's affairs was in late October 2005.

3 In 2011, the appellant commenced a proceeding in the County Court against the respondent. In that proceeding, the appellant alleged that she had suffered loss as a result of the respondent's negligence in failing to give adequate advice about options open to the appellant to end her bankruptcy.

4 The appellant's proceeding came on for hearing in the County Court before Judge Cohen on 7 December 2012. The trial before Judge Cohen took six days. Not all of the pleaded allegations made against the respondent were pursued. After amendment, the appellant's case against the respondent was confined to an allegation that he failed to advise, or 'properly' advise, the appellant, in particular in advice given on 27 September 2005, of two specific courses available to the appellant: first, that the appellant could make another post-bankruptcy composition proposal after one made in July/August 2005 was defeated; and secondly, that in order to achieve an annulment under s 153A of the Act, the appellant could herself engage a financier to access equity in property owned (or controlled) by her, and then negotiate with her trustee in bankruptcy to have her creditors paid out.

5 The appellant's bankruptcy was annulled in October 2010 after the appellant had taken the second of the above described courses (the existence of which course the appellant said she first learned about in 2009, from new solicitors then retained by her). However, the amount required to be paid to the appellant's creditors and her trustee in 2010 'far exceeded' the amount that would have been required to be paid to achieve an annulment in 2005. It was this loss in respect of which the appellant sought damages from the respondent.

6 At trial, three witnesses gave viva voce evidence: the appellant, a licensed finance broker (Mr Robert Campbell) whose company acted for the appellant in 2010 to assist her to obtain finance to enable the paying out of her bankruptcy, and the respondent. A large number of documents were also tendered, as set out in a schedule of exhibits attached to the trial judge's reasons for judgment.[2]

7 On 1 February 2013, her Honour dismissed the appellant's claim against the respondent. In substance, her Honour concluded that the duty owed by the respondent to the appellant did not require him to give the advice for which the appellant contended. Additionally, the trial judge was not satisfied that the giving of advice for which the appellant contended would have made any relevant difference to the course taken by the appellant and the ultimate outcome. In short, the appellant failed at trial on the issues of breach of duty and causation.

8 In her amended notice of appeal, the appellant identifies 13 grounds of appeal. Grounds 1 to 10 seek, with varying degrees of specificity, to attack the trial judge's four principal conclusions that:

(a) the respondent did not owe a duty to the appellant to advise her that she could make another post-bankruptcy composition proposal;[3]

(b) the respondent did not owe a duty to the appellant to advise her that to achieve an annulment under s 153A of the Act, she could herself engage a financier to access equity in property owned and/or controlled by her, and then negotiate with her trustee to have her creditors paid out;[4]

(c) even if the appellant had received the further composition advice contended for by the appellant, the appellant would not have acted on it;[5] and

(d) even if the appellant had received the advice to engage a financier to access equity contended for by the appellant, the appellant would not have acted on it.[6]

9 In addition, complaint is made in the appellant's amended notice of appeal about credit findings made by the trial judge. These complaints are set out in grounds 11 and 12 in the following terms:

1. Whether the learned judge erred in making adverse findings as to the appellant's credit which were not open on the evidence, contrary to the evidence or inconsistent with the evidence.
2. Whether the judge erred in making adverse findings as to the appellant's credit when the appellant was without legal advice from 2005 to 2009.[7]

10 In ground 13, the appellant makes complaints of bias against the trial judge in the following terms:

1. By reasons of comments made by her Honour in paragraph 10 in the reasons for judgment in which she states:

a) ... 'she has had the attitude that a number of people other than herself were to blame for her bankruptcy and its duration. I infer she has been heavily focus[ed] on some aspects of events to the exclusion of others'.

b) Her Honour was aware during the hearing a personal family friend Philip Bornstein who had been the appellant's counsel at the time of the sequestration order, had been sued by the appellant for negligence for failing to appear on her behalf when instructed to do so resulting in the sequestration order. (paragraph 34 judgment)

At the time of that evidence by the appellant the judge should have disqualified herself on the basis of apprehended bias.

By reason of paragraph a & b the trial judge evinced bias or apprehended bias against the appellant and should have disqualified herself.

11 Notwithstanding that no complaint was made by the appellant's counsel at trial[8] concerning any issue of bias, about which we will say more below, we take ground 13 and the appellant's submissions before us to encompass allegations of both actual bias and apprehended bias on the part of the trial judge.

12 Putting questions of bias to one side, in order to overturn the trial judge's order dismissing the appellant's claim against the respondent, and in order to obtain a judgment in her favour on the claim, the appellant needs to reverse the conclusions against her on both breach of duty and causation in respect of at least one of the pieces of advice she alleges that the respondent should have given to her.

13 Before coming to the events that led to the sequestration order being made, it is necessary to give a little detail about the appellant's financial affairs. In 1994, the appellant arranged for the creation of a family trust in favour of her daughters and any future children her daughters might have. A discretionary trust called the 'Richardson Trust' was established, with a solicitor friend of the appellant being appointed trustee.

14 By December 2000, the appellant was the registered proprietor of four residential properties, one in Wattle Road Hawthorn, one in Hill Street Hawthorn and two in Richardson Street Middle Park.

15 In the months leading up to May 2005, the appellant had been pressed for payment by a number of creditors, many of whom were barristers seeking fees owing to them as a result of being briefed by the appellant's practice. Other creditors were former clients against whom the appellant had issued proceedings to recover outstanding costs. There were also a small number of people claiming to be creditors arising out of earlier insolvency problems in approximately 2001 and 2003.

16 In November 2004, a bankruptcy petition had been issued against the appellant by a barrister claiming outstanding fees. The barrister was paid, but another creditor was substituted in relation to the petition.

17 On 10 May 2005, the creditor's petition against the appellant came on for hearing in the Federal Magistrates Court (now the Federal Circuit Court). There was no appearance on behalf of the appellant, and the sequestration order, to which we have already referred, was made against the appellant's estate, unopposed.

18 On 16 May 2005, the respondent, a barrister specialising in insolvency law, was retained by the appellant's then solicitors to prepare an application to have the sequestration order set aside. As a result of conversations and material provided to the respondent during the following week, the respondent recommended that the application to the Federal Magistrates Court be broadened not only to apply to set aside the sequestration order on the basis that it was made in the appellant's absence, but also to apply for the appellant's bankruptcy to be annulled under s 153B of the Act on the basis that the appellant was solvent. A notice of motion seeking appropriate relief on behalf of the appellant was filed in the Federal Magistrates Court on 24 May 2005. The notice of motion was made returnable on 6 June 2005. The trial judge described matters as they were at about this time in the following terms:

1. From early in Mr Galvin's involvement, Ms Owens emphasised to him that she sought to end her bankruptcy in the most timely and least costly way, and in a manner which would restore her assets to her, and enable her to pursue her claims for unpaid fees against four former clients. The latter depended upon either convincing the Trustee to elect to proceed with them, or upon having the bankruptcy set aside or annulled to enable her to reinstate or revive them.
2. As at the time May/June 2005, the estimated net value of the four properties was approximately $3 million. The total of claims she had outstanding against former clients Garms, Plowman, and Holmes was approximately $552,000 according to her evidence, or $325,000 according to the Trustee. Her other assets were no more than approximately $50,000.
3. As to her liabilities, the total of creditors' claims admitted to vote at the September creditors' meeting was $405,943, of which she disputed a very substantial proportion, and [the] total of creditors not admitted at the meeting (including the substantial balance of the Plowman claim) was approximately $515,000.[9]

19 On 6 June 2005, the respondent appeared for the appellant on the appellant's applications to set aside the sequestration order and to annul the bankruptcy pursuant to s 153B of the Act. However, the respondent sought an adjournment on behalf of the appellant due to the late service of an affidavit filed by the appellant's trustee in bankruptcy. An adjournment was ultimately granted to 17 June 2005 but (to use the trial judge's words) 'it was apparent that there would be vigorous opposition [to the appellant's motion] from creditors represented by counsel at the hearing'.[10]

20 An issue of considerable significance in the appellant's bankruptcy concerned a document the appellant alleged she executed on 20 December 2000 ('the December 2000 document'). The document provided:

THIS DECLARATION OF TRUST is made the 20 day of December 2000.

PARTIES

1. SUZANN MACDOUGALL [Sue Owens] of ... Wattle Road Hawthorn

[TRUSTEE]

2. THE RICHARDSON TRUST [BENEFICIARY]

3. The Trustee has at all relevant times agreed to act as trustee of this trust on the terms set out.

4. The Trustee has agreed to transfer her interest in all property owned by her including the property situated at ... Wattle Road Hawthorn inclusive of its contents to the Beneficiary.

DECLARATION OF TRUST

4. The Trustee declares that the Trustee holds the trust estate for the benefit of THE RICHARDSON TRUST and its beneficiaries the children of the Trustee.

5. The Trustee must at the request and cost of the beneficiary transfer the trust estate to the Beneficiary or otherwise deal with the trust estate as the Beneficiary directs.

SIGNED SEALED AND DELIVERED BY ] [signature of Ms Owens]

THE SAID SUZANN MACDOUGALL IN ]

THE PRESENCE OF

[signature of witness]

21 The question that arose on more than one occasion during the appellant's bankruptcy was whether the appellant's four properties (valued at approximately $3 million) were subject to the terms of the December 2000 document. If the four properties were subject to the terms of this document then the appellant was not insolvent, and she had more than sufficient assets to pay all those who claimed to be creditors. On the other hand, if the appellant had, by the terms of the document (or otherwise), transferred the properties to the Richardson Trust (or the trustee of the Richardson Trust, or other beneficiaries of that Trust) then the appellant did not have sufficient funds to pay her debts. Indeed, so much was conceded by the appellant in cross-examination at trial.

22 Following the hearing on 6 June 2005, there was a conference between the appellant, the respondent and the appellant's then solicitors. Amongst other things that were discussed was the effect of the December 2000 document.

23 On 9 June 2005, the respondent provided a memorandum dealing with what occurred in court and in conference on 6 June, and issues concerning the December 2000 document. The respondent's memorandum provided:

During a conference with Ms Owens in my chambers after the hearing, my instructors and I discussed some issues which must be addressed. Of particular significance is Ms Owens' previous claim that certain valuable real estate registered in her name was in fact beneficially owned by her family trust. In her recent affidavits, she has claimed that she is in fact the beneficial owner of the property. Her assertion of solvency is based on this claim. She has explained to me that she received certain advice from legal practitioners to the effect that [the December 2000 document] was not effective. [Counsel for the petitioning creditor] has made it plain that he intends to cross-examine Ms Owen at length about this matter. In particular, he will be putting to her answers she gave in an oral examination ... .

My instructor is concerned that Ms Owens clearly understands that if she now claims to be the beneficial owner of the land in question, it will be extremely difficult (if not impossible) for her to reverse her position should she remain bankrupt. That is, in the event that the sequestration order and bankruptcy are ultimately upheld, it is unlikely that she would be able successfully to deny beneficial ownership of the property.

During our conference [one of the appellant's solicitors] requested that I provide a written opinion as to the effect of [the December 2000 document]. However, Ms Owens insisted that she did not want to pay for a memorandum of advice. At that point, my instructor declined to act further in the matter. The matter was resolved when I agreed to express a brief preliminary opinion in this memorandum. I have been strictly instructed to limit my consideration of the matter.

24 The respondent then set out various competing considerations in respect of the December 2000 document before saying that 'on balance', he preferred the view that the December 2000 document was effective to transfer the beneficial interest in the appellant's four properties to the Richardson Trust.

25 The matter returned to the Federal Magistrates Court on 17 June 2005. On that day, the appellant was cross-examined vigorously and extensively by opposing counsel. It became apparent on that day that the hearing was likely to take considerably longer than had first been expected, and that the proceeding would be more protracted and costly than first envisaged by the appellant.

26 On 1 July 2005, the matter again returned to court. At this time, the appellant had new solicitors. At the conclusion of this day's hearing, the appellant said that she was reluctant to continue with her application as it was clearly going to take much longer and be more costly than had been anticipated. The respondent advised the appellant that he considered that a better option for the appellant would be a post-bankruptcy composition proposal pursuant to s 73 of the Act. Section 73(1) of the Act relevantly provides:

Where a bankrupt desires to make a proposal to his or her creditors for:

(a) a composition in satisfaction of his or her debts; or

(b) a scheme of arrangement of his or her affairs;

he or she may lodge with the trustee a proposal in writing signed by him or her setting out the terms of the proposed composition or scheme of arrangement and particulars of any sureties or securities forming part of the proposal.

27 Section 73 of the Act goes on to provide for the trustee calling a meeting of creditors and the creditors voting to determine whether or not to accept a bankrupt's proposal.

28 By July 2005, the appellant (as she conceded in cross-examination) was aware that there were four ways of ending her bankruptcy:

(a) a composition under s 73 of the Act;

(b) an annulment under s 153B of the Act;[11]

(c) an annulment under s 153A of the Act;[12] and

(d) a setting aside of the sequestration order due to its having been made in the appellant's absence.

29 On 1 July 2005, the respondent was asked by the appellant to provide another memorandum of advice in relation to the effectiveness of the December 2000 document. The respondent was instructed that a copy of his advice would be provided to the appellant's trustee in bankruptcy. On 13 July 2005, the respondent provided an advice in which he concluded:

I am instructed that in the present case Ms Owens did not ever provide executed transfers to the trustee of the family trust. In the absence of such documents, the 20 December 2000 deed was ineffective as a deed of settlement to divest Ms Owens of beneficial ownership of the properties.

30 On 15 July 2005, the respondent provided a further memorandum. This memorandum noted that the respondent had been requested by the appellant to settle a proposal for a composition or scheme of arrangement. The memorandum continued:

I have drafted a formal proposal, which I return herewith.

The draft proposal, if accepted by a special resolution of creditors, contemplates that the trustee, Mr Lofthouse, will call for proofs of debt and adjudicate upon them in order to ascertain the total amount required to pay out the estate in full, including his own costs and expenses, Ms Owens will then pay this sum within 21 days (or such period as Ms Owens proposes), the proposal sum is to be secured by a mortgage over the Hill Street property, so that if the amount is not paid within the requisite period, the trustee may take action under the mortgage.

Ms Owens disputes the substantial claims of Mr Dunn and Mr Coleman. Having regard to the combined size of their debts, their votes will influence whether or not a resolution for the proposal is carried. Assuming the proposal is carried, should Mr Lofthouse admit the Dunn and Coleman debts to proof, Ms Owens will be entitled to challenge the trustee's decision under s 178 (see s 76(1)).

31 On 15 September 2005, there was a meeting of the appellant's creditors. The appellant's composition proposal was put to the meeting. The composition proposal (which had been varied from the respondent's draft) was, in essence, that within 120 days of the trustee of the appellant's bankrupt estate having adjudicated upon proofs of debt, the respondent would procure payment in full of the claims admitted, interest and all relevant expenses and costs (including those of the trustee and petitioning creditor). Additionally, mortgages were to be executed over the four properties to which we have already referred. Further, an acknowledgment was obtained from the appellant's daughters, as beneficiaries of the Richardson Trust, that to the extent that the properties were beneficially owned by them under the trust, they would not assert priority against the creditors under the composition proposal.

32 On 15 September 2005, the proposal was defeated at a meeting of the appellant's creditors. The minutes of this meeting[13] record the voting in respect of the proposal as:

Voting for: $14,597.64.

Voting against: $391,345.63.[14]

33 On 27 September 2005, the appellant had a further conference with the respondent. During this conference, the appellant asked the respondent how she could best get out of her bankruptcy. In evidence-in-chief, the appellant described her conversation with the respondent on 27 September 2005 in the following terms:

Do you remember what you asked - did you ask Mr Galvin anything when you first saw him in that meeting? - - - Yes, I asked him to tell me how I could best get out of my bankruptcy, what was the best way out.

What did he tell you? - - - He said that I could object to the - continue to object to the amount the creditors like Mrs Garms were claiming by challenging the trustee's decision to accept their amounts as creditors ... and that I could continue to have my bankruptcy annulled.

...

So in your mind as a result of - well, sorry, what was the advice that you received from Mr Galvin as to your options? - - - That I could continue to object to the creditors that I had objections about concerning payment. ... I could challenge - I could go to the courts, your Honour, and I could challenge the claim for payments from various creditors, and there were a number of people who were claiming very substantial amounts of money that I really objected to having to pay.

34 Following the conference on 27 September, the respondent provided a further memorandum as follows:

I conferred with Ms Owens this afternoon in relation to the above matter.

Ms Owens confirmed instructions that her proposal for a post-bankruptcy composition was recently defeated at a meeting of creditors because of opposition received from certain creditors (namely, Plowman, Garms and Homes). Ms Owens disputes the entitlement of those creditors and others (including the barristers, Dunn and Coleman) to vote or prove in the bankruptcy. However, I understand that the trustee saw fit to admit their claims for voting purposes. I advised Ms Owens that it is open to her to challenge the trustee's determinations under s 178, if she sees fit.

Our discussion turned towards the possibility of paying out the bankruptcy under s 153A. To achieve an annulment under that section, the trustee would need to be satisfied that all of Ms Owens provable debts (and the trustee's remuneration and expenses) were paid. This would of course involve the trustee adjudicating upon creditors' claims once again and would most likely raise again the disputes with respect to the entitlements of the creditors referred to above. It seems to me that the resolution of those disputes by litigation is virtually unavoidable. I recommended that Ms Owens, or my instructor, press the trustee for details of the amount required to pay out the bankruptcy. A challenge to any determinations by the trustee with respect to creditors' entitlements to prove in the bankruptcy may be brought if and when necessary.

Ms Owens instructed that she preferred to focus on procuring an annulment under s 153A rather than pursue her application under s 153B, which application has been adjourned sine die but is expected to be relisted before the end of the year.

I reminded Ms Owens that fees are outstanding to me and stated to her that, if I am to continue to act for her, I would require payment of those fees and a payment on account of future fees. I will need to discuss the amount required to be paid on account of future fees with my instructor.

35 Central to the appellant's case below was her complaint that the respondent did not advise her on 27 September 2005 (or at any other time), either orally or in writing, that her options included:

(a) approaching the trustee with a second composition proposal; or

(b) attempting on her own to raise finance to pay out all of her creditors (which would require the trustee's ultimate agreement and co-operation, but not rely on the trustee to realise the appellant's assets, whether by sale or borrowings, in order to pay out creditors).

36 On 19 October 2005, the appellant instructed the respondent that she was not able to fund the existing litigation any further. Additionally, the appellant advised the respondent that her preference was to discontinue that proceeding, and to pay out the bankruptcy during which she would dispute a number of the proofs of debt.

37 On 24 October 2005, the respondent appeared in the Federal Magistrates Court. On that day, leave was given to the appellant to discontinue her proceeding, with consequential costs orders being made against the appellant. That was the last relevant involvement of the respondent in the appellant's affairs.

38 As the trial judge described it, in the months following the end of the respondent's retainer, the appellant changed her approach in relation to the four properties.[15] Up to October 2005, the appellant asserted that she either owned or controlled the four properties registered in her name. The appellant took that approach for the purpose either of contesting the allegation that she was insolvent, or of seeking to enter into an agreement to pay out her admitted creditors. However, sometime after October 2005 (and probably before the end of September 2006), the appellant took a diametrically opposite position. After October 2005, the appellant contested the notions that the four properties belonged to her and thus formed part of her estate. Taking this approach, the high probability at the time was that the appellant did not have sufficient funds to pay her creditors.

39 In 2006, the appellant's trustee in bankruptcy issued an application in the Federal Magistrates Court against the appellant and the trustee of the Richardson Trust. In that application, the appellant's trustee in bankruptcy sought declarations pursuant to ss 58 and 116 of the Act that the beneficial title of each of the four properties vested in the appellant's trustee in bankruptcy - that now being in issue between the appellant and her trustee and creditors. The appellant's trustee's application was resisted by the appellant. At the hearing, the appellant was represented by counsel briefed by the appellant's firm (Owens Lawyers). The matter proceeded over some three days in March 2007.[16] On 30 August 2007, McInnis FM gave judgment for the appellant's trustee in bankruptcy. Orders were made against the appellant. Specifically, the court declared that the December 2000 document 'was not effective to dispose of [the appellant's] beneficial interest in the properties'.

40 The appellant appealed to the Federal Court. The appellant's appeal came on for hearing on 30 November 2007. Again, the appellant was represented by counsel. On 12 December 2007, after a hearing that spanned two days, Weinberg J[17] dismissed the appellant's appeal and made an order for costs.

41 This was not the end of the matter. The appellant sought special leave to appeal to the High Court. On 23 May 2008, the appellant's application for special leave came on for hearing before Heydon and Kiefel JJ. On that occasion, the appellant was represented by two members of counsel on the instructions of a new solicitor (Margot Foster Lawyer). Special leave was refused by the High Court.[18]

42 At some time in early-2009, the appellant retained new solicitors - MW Law.[19] The appellant then made application in the Federal Magistrates Court seeking that the court enquire into the conduct of her trustee in bankruptcy pursuant to s 179 of the Act. Additionally, in that application the appellant sought an extension of time to review decisions of the trustee to admit certain of her alleged creditors (including Dunn and Plowman) pursuant to s 30 and s 104 of the Act. The appellant ultimately sought to have those decisions in respect of those creditors set aside. The matter came on for hearing before Burchardt FM[20] on 8 September 2009. On this occasion, the appellant was represented by new counsel instructed by MW Law.

43 On 26 October 2009, Burchardt FM dismissed the appellant's application and made a consequential order for costs.

44 Finally, having failed in her various court proceedings, in October 2010, using funds obtained with the assistance of a finance broker retained by her, and with the consent of her trustee in bankruptcy, the appellant obtained an annulment of her bankruptcy under s 153A of the Act. That said, the amount required to pay out the appellant's creditors and her trustee for his own fees and legal costs at that time exceeded $1.5 million - an amount considerably in excess of that which would have been required to achieve an annulment in 2005.

45 In her reasons for judgment, the trial judge analysed the evidence in considerable detail, and with evident care. Her Honour described the appellant's evidence in the following terms:

1. The plaintiff gave oral evidence and was cross-examined in some detail. Her credibility and reliability as a witness are strongly disputed by the defence.
2. Ms Owens has been litigating the events of her bankruptcy for the last seven years. My impression from her own evidence, and from the documentation tendered, including documents in the Federal Magistrates' Court and Federal Court, is that throughout all of the events she has had the attitude that a number of people other than herself were to blame for her bankruptcy and its duration. I infer that it is likely that she has been heavily focused on some aspects of the events to the exclusion of others.
3. I have also taken into account in assessing her credibility and reliability as a witness that she was suffering from depression and taking medication for it at the time of the relevant events, and at the time of the hearing before me. Although ultimately there was no medical evidence as to this condition or its likely effects on her, I have taken into account from general knowledge and experience hearing cases, that people suffering depression can experience lethargy, and difficulties in concentration and memory, and that medications for such conditions may also contribute to concentration or memory problems.
4. The need to give evidence in court over many hours (notwithstanding breaks), can put further strain on concentration and memory, and I did think that that was affecting the plaintiffs evidence at times. However, although her manner was at times subdued, she managed to answer argumentatively at other times.
5. Specific attack on her credibility is made on several grounds. First, she claimed to have no memory of a number of conversations by telephone or in Mr Galvin's chambers, and also of some correspondence. As I said during the hearing, I find unsurprising that any witness cannot remember specifics of the timing of when certain things were said, or content of particular conversations that occurred some seven years ago. However, she claims memory of certain parts of conversations that she does not otherwise recall. As the matters she claims to remember are critical to her cause of action, the selectivity of her memory does cause me to question the reliability of some of her evidence on those matters.
6. It was also my impression that Ms Owens was at times deliberately evasive in answering, and adopted the approach of only giving a substantive answer when she saw it as furthering her case.[21]

46 Her Honour then dealt with specific attacks that were made on the appellant's credit at trial, before saying:

1. Ultimately, I had sufficient doubt as to the reliability of much of Ms Owens' evidence that, where her memory differs from what is reflected in contemporaneous documents which otherwise appear reliable, I have given her version less weight than that reflected in the documents.[22]

47 Her Honour described the respondent's evidence in the following terms:

1. Mr Galvin gave evidence and was cross-examined. He admitted to little direct memory of the specifics of his dealings with Ms Owens, which is understandable, not only because they happened some seven years earlier, but also because he was not alerted to any dissatisfaction she had with his services or any likely dispute about them until more than five years after they ceased. He did, however, have contemporaneous diary notes, as well as advices and other documentation he had drawn, and used those to refresh his memory.
2. Overall, I found his evidence credible, and likely to be reliable as it was supported by his notes, advices and other contemporaneous documentation, such as solicitors' letters at the time. There is one issue, to which I shall refer later, on which I did not accept his evidence, but I regarded that more as his opinion and not as undermining his overall credibility or reliability as a witness.[23]

48 Having set out the relevant facts in some detail, and having also discussed the relevant principles, the trial judge then made the following findings:

• Mr Galvin professed particular skill and experience in insolvency law, and the standard of care to be expected of him was that of the ordinary skilled barrister exercising and professing to that specialty area of practice.
• Although a qualified and experienced solicitor, Ms Owens had practised mainly although not exclusively in family law, and did not have the specialised knowledge and experience of insolvency law which Mr Galvin had, being the expertise she sought from him.
• Ms Owens was nevertheless aware of many of the issues arising under insolvency law, having not only practised as a solicitor for some decades, but having had personal interface with this field in 2000, when a pre-bankruptcy composition had been an option for her, and under a creditors' examination in 2003.
• She probably did not know that it would be open to her to make a second composition proposal.[24]
• There had been constraints on the extent of Mr Galvin's retainer since he was first retained. Ms Owens had made clear to him and to solicitors that she had limited ability to pay their fees, and wanted to limit what they did accordingly. She had resisted retaining Mr Galvin to provide a comprehensive advice about the effectiveness of the Declaration of Trust document. She had drafted or redrafted some documents (Affidavits) herself. She had undertaken negotiations with the Trustee's office herself between mid-July and mid-September in relation to the terms of the composition proposal.
• Although it is accepted that Mr Galvin was aware that she had a history of suffering from depression, she had not told him that she could not understand his advice, or was not capable of undertaking correspondence or negotiations with the Trustee herself.
• At no stage had Mr Galvin been retained to give broad and comprehensive advice as to every possible option for ending her bankruptcy. On the contrary; it was only as events developed, and in particular as her prospects of succeeding were looking unfavourable (in the Federal Magistrates Court) or were defeated (rejection of composition proposal by creditors' meeting of 15 September) that she would extend Mr Galvin's retainer by asking for more advice.
• She had made clear that she was very strongly opposed to paying the claims of certain creditors, and in particular of barristers Dunn and Coleman, and former clients Garms, Plowman and Holmes. Mr Galvin described her as "adamant" that they should not be paid, she gave the same impression whenever they were mentioned during her evidence, and I note that even as late as 2009 and when she had lost a succession of cases in relation to her bankruptcy, she made a further court application to review the Trustee's decisions to admit these claims.
• After the creditors meeting rejected the composition proposal, she contacted Mr Galvin, told him that had occurred, and asked for his advice on "what was the best way out", which I take to be of the bankruptcy. On her own version the word "best" is used, implicitly acknowledging that she was not retaining him to advise on every conceivable possibility.[25]

49 The trial judge then dealt with each of the appellant's claims that the respondent's failure to advise her of both the option of making a second composition proposal and the option of her obtaining outside financial advice was causative of loss to the appellant. With respect to each of the options contended for by the appellant, the judge concluded that the respondent's duty of care, in the circumstances, did not encompass the giving of the relevant advice. Put another way, her Honour held that the failure by the respondent to advise of the options in respect of which the appellant makes complaint did not constitute a breach of the respondent's duty to the appellant.

50 Dealing with the question of the respondent's duty to advise the appellant that she could make a further composition proposal, her Honour said:

1. The question is whether the making of a further composition proposal was an option that an ordinarily skilled barrister in this field would have advised was possible to a client in Ms Owens circumstances. I am not satisfied that it was. I am satisfied that it would not have been reasonably expected of a barrister in the insolvency field exercising due skill and care to advise a client with priorities of minimising costs and delay and of preserving certain potential claims and disputes, by including options that had no reasonable prospects of succeeding, and in particular when better options to achieve her goals were available.
2. I am not satisfied that the scope of Mr Galvin's duty to advise Ms Owens as at 27 September 2005 included the need to advise her on all theoretical options even if they had minimal chance of achieving her goal. On the contrary, she had made clear that she did not to want to waste time or costs, and at the same time that she did not want to compromise on certain issues including the disputing of some substantial creditors' claims. As the proposal that had been defeated involved paying 100 per cent of creditors' claims adjudicated as payable by the Trustee, together with interest, the only conceivable composition which might improve that proposal for creditors was of paying all claims, at least from creditors represented at the meeting, and foregoing her right and wish to dispute some.
3. I consider that to expect him to advise her of this option in all of the circumstances would have been against the tenor of the type of advice she had said that she wanted, and also would not have been of the quality of professional advice that Mr Galvin had in fact been giving to her. The options he in fact advised her of on 27 September 2005 were much more likely to achieve what she said her goals were, of obtaining annulment of the bankruptcy as quickly as possible (at further expense in Trustee's fees but not in her own or the trustee's court costs), while retaining the ability to challenge any decisions made by the trustee which she disputed (although that would necessitate more costs).[26]

51 The trial judge dealt with the question of the respondent's alleged duty to provide advice about the appellant being able to obtain outside finance in similar terms. In the course of her Honour's reasoning in this issue, her Honour said:

1. The plaintiff's case on this issue is put that the defendant's duty of care included the need to advise as at 27 September 2005 that an option, or possible means of annulling the bankruptcy, was to herself engage directly in trying to raise finance to pay out the bankruptcy. It is not put that that duty extended to specifically advising her that she could go to a finance broker, nor in suggesting any person in that field.

1. The plaintiff says, and I accept, that as at 2005 she did not know that there were financiers who would lend funds to bankrupt persons to enable them to pay out their bankruptcies, nor that it was possible for her to approach such lenders herself and then present a finance proposal to the Trustee for agreement.
2. She also says, and I find harder to accept as truthful, that she did not think of this because she believed that she could not negotiate to utilise equity in the properties that had vested in her Trustee in bankruptcy. Such belief had not stopped her from appointing a real estate agent to sell the Hill Street property, and then to cancel that engagement some months later, both actions not through the Trustee in bankruptcy.

1. The plaintiff bears the onus of proving that the scope of Mr Galvin's duty extended to advising in this manner. Given the limitations on his retainer, the very fine line as to whether this would have been financial advice rather than legal advice, and the lack of evidence from anyone practising in the insolvency field that this was an option about which it was reasonable to advise clients at that time, I am not satisfied that it was to be expected of Mr Galvin exercising the reasonable skill and care of a practitioner in his field of expertise at that time. In my view the prism of hindsight could be the only basis for such a finding, and its source, namely the plaintiff herself and her finance broker, Mr Campbell, are not nearly sufficiently reliable in this context for such a positive finding to be made. This is despite the cogent efforts of Mr Isles to bring me to carefully consider this issue.[27]

52 Next, on the issue of causation, the trial judge found against the appellant, concluding that even if the appellant had been advised of the possibility of a further compromise proposal, the appellant would not have made one, and/or any further proposal made by the appellant would not have been accepted in any event. As her Honour put it:

1. Even if the plaintiff had been advised that a second composition proposal was possible, I am not satisfied that she is likely to have made one. On the contrary, and even though the onus is on the plaintiff to prove that she probably would have done so, I am satisfied that she was not likely to have made a further one.
2. As already discussed, to make a meaningful second compromise proposal she would have needed to make the offer more favourable to creditors. Apart from reducing the 120 day time for payment, and there being no apparent way of funds being raised or assets realised in much less than that period, the only apparent way of improving the offer was to remove the condition that creditors' claims would need to be proved to the Trustee.
3. To withdraw that condition would necessarily have meant withdrawing her opposition to payment in full of the amounts claimed by the barristers, Dunn and Coleman, as well as the claims of her former clients Garms, Plowman and Holmes. Leaving aside other. claims of about $400,000, mentioned in the Minutes of the creditors' meeting in the report of the Trustee and not admitted to vote at the meeting, I am satisfied that notwithstanding her expressed wish to bring the bankruptcy to an end as soon as possible, Ms Owens was not prepared to forego her arguments as to why the claims of the two barristers or those former clients should not be paid in full. That is bolstered by her requests for confirmation at several stages, including in making the first composition proposal, that there was still a possibility of challenging decisions by the Trustee, including acceptance of certain claims. To give meaning to a compromise proposal that would go beyond that which she had made and which had been rejected, she would have needed to forego ability to make such challenges.
4. I am satisfied that it is most unlikely that Ms Owens, as at late 2005 or during 2006, would have been willing to offer to pay all of the claims of all of the creditors who had lodged claims with her Trustee and therefore, even if Mr Galvin had advised that a further composition proposal was available to her, she would not have taken that option.[28]

53 Similarly, the trial judge concluded against the appellant on the issue of causation in relation to the outside financing option. Again, as her Honour put it:

1. Ms Owens said in evidence that if she had been told of this option, she would have done it. She also said that she would have made a second composition proposal if advised of that option, and "would have done both to cover myself in both ways". She said that she could have done both notwithstanding that there was set in motion a claim by her daughters' solicitors to assert that her Trustee in bankruptcy had no right to utilize the properties because they belonged to the Richardson Trust. She says to this that her children would have co-operated in any way possible to enable her to get out of that situation.
2. Even if I were to accept that she genuinely believes that she would have done this, it is said with much hindsight, and her actual actions before and after, as well as correspondence and affidavits, are inconsistent with it being likely that she would have taken that course.
3. Both of the options she claims she would have taken involved paying out her bankruptcy, including creditors and the Trustee's fees and expenses. She chose shortly after cessation of Mr Galvin's retainer to take a diametrically opposed approach, of challenging the trustee's actions and in particular asserting that the properties were not part of her estate. As opposed to using best endeavours and whatever was required to pay out creditors and the bankruptcy as soon as possible, as was implicit in her undertaking either of the options she says she would have done, she undertook protracted litigation.

1. Finally, I regard as inconsistent with her having been likely to try to access finance soon after finding out about it, if so advised by Mr Galvin, the fact that even after learning of this option from MW Law in 2009, she pursued further court action against the trustee before paying out the bankruptcy to obtain the annulment.[29]

The appellant's complaints about the judge's conclusions in respect of duty and breach: grounds 1 to 8

54 In grounds 1 to 8, the appellant makes complaint about the judge's conclusions that the respondent did not breach any duty he owed the appellant in failing to advise her of the possibility of making a second composition proposal and/or of the possibility of the appellant herself engaging a financier to access equity in property owned or controlled by the appellant.

55 There was no dispute in the trial below, or on this appeal, that the respondent owed the appellant a duty of care - or that the standard of care and skill required of the respondent in giving professional advice was that which may be reasonably expected of a legal practitioner (in this case, a barrister) possessing a special skill in the area of insolvency.[30]

56 In considering the issues of content of duty and breach, as the trial judge said, it is necessary to have regard to all of the circumstances of the respondent's retainer. The trial judge found that the respondent was never asked to provide a detailed and comprehensive advice on all issues and in respect of all options open to the appellant. That said, a failure of the respondent to be so instructed by the appellant does not necessarily answer the question whether the respondent's failure to give particular advice might or might not constitute a breach of duty. Similarly, as her Honour said, the failure of the appellant to ask a specific question of the respondent is also not necessarily determinative.

57 In argument before us, the appellant submitted that it was wrong to say that the respondent was never asked to provide a detailed and comprehensive advice on all issues and in respect of all options open to the appellant. In support of this submission the appellant relied upon a passage in her evidence in chief where the appellant gave evidence that a few days before 27 September 2005, she had a conversation with the respondent wherein she said that 'she needed to speak to him about what steps [she] could take to resolve her bankruptcy'.[31] However, in our view, when one looks at the whole of the evidence, it was well open to the trial judge to make the finding her Honour made about what it was in fact that the appellant sought advice about from the respondent.

58 A theme of the appellant's complaints in respect of the issue of breach of duty is that the trial judge should have concluded that, once it was determined that the respondent did not give the advice in respect of which the appellant makes complaint, the respondent was negligent. In effect, it appeared to be the appellant's submission that there was either an absolute duty to give this advice, or that proof of the fact that the advice was not given conclusively determined the issue of negligence (if not the proceeding) against the respondent. To the extent these were the submissions of the appellant, we reject them. The matter fell to be determined in accordance with the question of what was reasonable in all the circumstances - having regard to the requisite standard of care, the standard being what could reasonably be expected of a barrister possessing a special skill in the area of insolvency and bankruptcy.[32]

59 Having reviewed the evidence and the appellant's arguments advanced in support of grounds 1 to 8, it is sufficient for us to say that we see no error in the trial judge's conclusions on the questions of duty and breach.[33] At one level it could be said that the resolution of the relevant issues in this case might have been different had the appellant asked the respondent specifically whether she was permitted to make a second proposal to her creditors. However, the appellant, as she conceded in evidence, never asked this question. In the circumstances, it is difficult to see how one could be critical of the respondent for failing to advise that the appellant could make a second offer to her creditors.

60 As to the possibility of advice being given by the respondent to the appellant that the appellant could herself engage a financier, again we see no error in the trial judge's approach. As her Honour described it, the fact that the appellant took a role in the attempted sale of the Hill Street property tends to belie the suggestion that the appellant did not have some belief that she had a capacity at least to approach a financier on her own behalf in order to see whether she could finance her way out of her bankruptcy. Again, it seems to us difficult to be critical of the respondent for not suggesting this option in the absence of some specific enquiry by the appellant of him.

61 Before proceeding further, it is necessary to say something about the appellant's complaints concerning the way in which the trial judge dealt with, and made findings about, the appellant's credit.[34] In our view, the trial judge's approach to the issue of the appellant's credit was free from error and, specifically, free from the errors asserted by the appellant in her written and oral argument. The appellant was a witness who was, from time to time, difficult. Indeed, at times the appellant was combative. In the context of this case, we think the judge's approach in resolving any conflicts in the evidence in favour of what is recorded in contemporaneous documents was eminently sensible, and entirely sound. Her Honour's findings in relation to the evidence of the two principal witnesses (the appellant and the respondent) were measured and, contrary to the appellant's submissions, well supported by the evidence.

62 While dealing with this topic, we should say specifically that there is nothing in ground 12. In ground 12, the appellant asserts that the judge erred in making adverse findings as to her credit when she 'was without legal advice from 2005-2009'. First, even if it be accepted that the appellant was without legal advice from 2005 to 2009, we see no basis for that fact impugning any of the trial judge's findings. Secondly, as the recitation of the relevant history that we have already made reveals, it is not correct to say that the appellant was without legal advice from 2005 to 2009. The appellant retained counsel for the proceedings in the Federal Magistrates Court, the Federal Court and the High Court in 2007 and 2008. Further, while the solicitor on the record in the Federal Magistrates Court and Federal Court proceedings in 2007 was the appellant's firm, in the High Court a different solicitor was on the record as representing the appellant.

The appellant's complaints about the judge's findings on causation: grounds 9 and 10

63 In grounds 9 and 10, the appellant makes complaint about the trial judge's findings on the issue of causation.[35] These complaints are without merit. It was well open to the trial judge to conclude that between October 2005 and the delivery of judgment by Burchardt FM in October 2009, the appellant chose to conduct her bankruptcy proceedings on the basis that the real estate registered in her name was not available for her creditors, and that her creditors would thus not receive payment in full in respect of their claimed debts. Such a course was, as the trial judge said, diametrically opposite to the course the appellant now claims she would have taken had she been given the advice she alleges should have been given by the respondent.

64 During argument before us, the appellant attacked the trial judge's findings that the appellant took a 'diametrically opposite' course in 2007 to 2009 from that taken in 2010. First, it was submitted that the judge was wrong to be critical of the appellant for taking a different approach to relevant matters at different times during the history of the appellant's bankruptcy. Secondly, it was submitted that the judge was wrong to have regard to what the appellant did at a time when she did not have the benefit of proper advice and/or the advice the appellant alleges should have been given to her by the respondent.

65 We reject these submissions. We do not read the judge as having been critical of the appellant for taking different positions at different times. In making the findings her Honour made, her Honour was merely analysing relevant matters of causation, as her Honour was bound to do. Further, we see no error in her Honour's approach of seeing what the appellant actually did, in order to ascertain what the appellant would likely have done if she had been given the advice she claims she should have been given.

66 Contrary to the appellant's submissions, the trial judge was not bound to accept the appellant's evidence that she would have taken one of the options not advised by the respondent at any time prior to October 2009. Indeed, it is of some note that notwithstanding the retaining of MW Law in early 2009, the appellant continued on her previous course during the balance of that year - before taking the alternative course in 2010. Having regard to all of the evidence (and not merely that of the appellant), again we see no error in her Honour's approach. Further, as has been said before, evidence of what a person would have done if given particular advice, which is given with the benefit of the hindsight of what actually occurred, has been well described as 'so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in most circumstances'.[36]

67 It follows from what we have said above, that we see no error in the trial judge's conclusions in respect of duty, breach and causation. Indeed, and for the reasons given in her Honour's careful and detailed analysis, we think her Honour was plainly correct to dismiss the appellant's claim against the respondent. This leaves the last remaining issue, the appellant's assertions of bias on the part of the trial judge.

69 The appellant makes complaints of both actual and apprehended bias. The complaints of bias relate to two matters: first, it is said that the judge should have disqualified herself as a result of being a close family friend of another member of counsel (Philip Bornstein) against whom the appellant had made serious allegations of negligence in failing to attend the Federal Magistrates Court on 10 May 2005 on behalf of the appellant, and in permitting the sequestration order to be made against the appellant; and secondly, on the basis of her Honour's findings, and the language used by the judge in her Honour's reasons for judgment. We deal first with the Philip Bornstein issue.

70 The involvement of Mr Bornstein in the appellant's affairs was disclosed by the appellant's counsel in opening the appellant's case to the trial judge. In opening, the following exchange occurred:

COUNSEL: Your Honour, can I give you an overview of the action as it was, lest you're in any way confused of what it is that the action you are now trying. There was a larger action. In fact there was a horrible prospect of there being four practitioners at the Bar table. There were two actions: one by my client against Philip Bornstein, who is a barrister; and the second action, which is this one, in which the defendants were the solicitor and the second defendant.

HER HONOUR: I'll let you just finish that background and then I'd better clarify. I've only read the pleadings in this matter.

COUNSEL: Yes. You don't need - - -

HER HONOUR: The other matter is - I don't have to go into?

COUNSEL: No, you don't need - - -

HER HONOUR: I only say it because Mr Bornstein is a long-time family friend.

COUNSEL: Yes.

HER HONOUR: But I'm not concerned with that matter?

COUNSEL: No, you're not concerned with that matter at all. It's merely a matter of history and it may be the subject of some questions of my client. Just to put you in the picture, there was a broader picture but you don't have to concern yourself with it.

HER HONOUR: Good.

COUNSEL: Because the actions against Mr Bornstein and the first defendant have resolved and there are orders to that effect in both those proceedings made by Judge Misso last Monday in which those proceedings were discontinued.

...

HER HONOUR: As long as no-one from that is going to be called as a witness, that's all.

COUNSEL: No, no.

HER HONOUR: Sorry, that he wouldn't be.

COUNSEL: The aspect of negligence which was alleged and prosecuted and the subject of that proceeding was that on the hearing of the sequestration order made on 10 May 2005 my client was not present in court. It was proposed that there would be a further application for an adjournment. There was an allegation or a suggestion that my client hadn't put Mr Bornstein in funds by the designated time, which was disputed. Although Mr Bornstein went to court, he didn't actually appear and the sequestration order was made unopposed. That's all you need to know about that matter.

71 Counsel for the appellant's opening then continued. No application was made by counsel for the appellant for the judge to disqualify herself on the basis of bias - notwithstanding her Honour's disclosure that Mr Bornstein was a long-time family friend.

72 Mr Bornstein's name resurfaced again during the appellant's evidence-in-chief. The appellant was being questioned by her counsel as follows:

Had you retained a barrister to appear on your behalf on that day [10 May 2005]? - - - Yes, I had. I'd had solicitors acting for me who were unable to appear on that date, so I had to retain a barrister myself.

Who was that barrister? - - - That was Philip Bornstein.

Were you in attendance on that day at court? - - - No, I understood the matter was to be adjourned.

To your knowledge do you know whether Mr Bornstein appeared for you on that day? - - - He didn't.

Do you know why he didn't? - - - He had a number of excuses as to why he didn't. He said his fees hadn't been paid - - -

HER HONOUR: Can I just stop you for a moment here. I did raise this on Friday - - -

APPELLANT'S COUNSEL: Yes, your Honour. It's not quite the same - - -

HER HONOUR: I would be embarrassed to have to decide anything that involved Mr Bornstein's credibility or - - -

APPELLANT'S COUNSEL: You're not, and so I - - -

HER HONOUR: - - - the like.

APPELLANT'S COUNSEL: Alright. It's not relevant. I'll stop there.

73 The evidence-in-chief of the appellant then proceeded without any further reference to Mr Bornstein or his alleged failure to appear on behalf of the appellant on 10 May 2005. Save for one mention of Mr Bornstein's name in the cross-examination of the appellant,[37] there were no further references to Mr Bornstein during the course of the trial below. Further, at no time during the trial below did the appellant or her counsel raise any question of bias, or seek to have the judge disqualify herself on the basis of any perceived or actual bias.

74 Having regard to the irrelevance of any act or omission that might have been alleged or established against Mr Bornstein to the issues that were in dispute in the trial, it is difficult to see how the appellant could have applied to have the judge disqualify herself on the basis of her connection with Mr Bornstein. No application having been made at trial in respect of these matters, the appellant's complaints now that the judge should have disqualified herself because of her connection with Mr Bornstein are without foundation: they must be rejected.

75 We turn now to the appellant's complaints about the trial judge's judgment which are said to disclose bias.

76 In her amended notice of appeal, the appellant makes complaint about her Honour's statement in paragraph 10 of the Reasons that the appellant 'has had the attitude that a number of people other than herself were to blame for her bankruptcy and its duration. I infer that it is likely that she has been heavily focussed on some aspects of the events to the exclusion of others'. In its complete form, paragraph 10 of her Honour's reasons provides:

1. Ms Owens has been litigating the events of her bankruptcy for the last seven years. My impression from her own evidence, and from the documentation tendered, including decisions in the Federal Magistrates' Court and Federal Court, is that throughout all of the events she has had the attitude that a number of people other than herself were to blame for her bankruptcy and its duration. I infer that it is likely that she has been heavily focused on some aspects of the events to the exclusion of others.[38]

77 We see no basis for any suggestion that what her Honour said in paragraph 10 of the Reasons discloses any actual bias. Nor do we see any basis for a contention that her Honour's findings or language in paragraph 10 might lead a fair minded lay observer reasonably to apprehend that the judge might not bring (or might not have brought) an impartial mind to the resolution of the appellant's case.

78 In the appellant's ten page (undated) written submission, complaint is made about paragraph 13 of her Honour's judgment in the following terms:

Criticism of the evidence is riddled with bias and, expressed in paragraph 13 [sic]. The judge criticises issues of memory and the 'selectivity' of memory. Neither a correct interpretation of the evidence and (sic) is indicative of the judge's bias in her conclusions.

79 In argument before us, the appellant made complaint about further paragraphs in the judgment below. Specifically, the appellant made complaint about paragraphs 34 and 36 of her Honour's judgment. In paragraph 34, complaint was made concerning her Honour's statement that the appellant 'blames others for [the making of the sequestration order] having expected there to have been an adjournment obtained'. Then, with respect to paragraph 36, the appellant made complaint about her Honour's reference to the instructing of the appellant's former solicitors, Hutchinson Legal.

80 Additionally, the appellant submitted to us that the language of the trial judge's reasons disclosed a bias against the appellant. We have set out above substantial parts of her Honour's reasons about which this complaint is made.

81 In the course of argument, the appellant also asserted that a reason for the trial judge's language and findings against the appellant can be found in the 'close connection' between the judge and Mr Bornstein. However, in our view, there is simply no substance in this submission.

82 As a further criticism of the judge and/or her reasons, the appellant submitted to us that, at times, the judge engaged in lengthy questioning of the appellant while she was in the witness box. This questioning was said to be, at least, inappropriate. We should say immediately, that we see nothing wrong with the way her Honour asked questions from time to time during the course of the trial. In our view, such questions were designed to do no more than elucidate and clarify matters for her Honour. Further, and in any event, no objection was taken to her Honour's approach by trial counsel who appeared for the appellant below.

83 Finally on the issue of bias, the appellant made complaint about a comment she alleged the judge made during the course of the appellant's evidence-in-chief. As put by the appellant, the trial judge is said to have made comment to the appellant's trial counsel that 'he could not expect an answer [from the appellant] to his questions'. The appellant was unable to direct us to the part of the transcript where this comment was said to have been made. That said, it appears to us that the passage in respect of which complaint is made appears at page 127 of the trial transcript.

84 Before dealing with this passage, it is necessary to say something more about the appellant's evidence as disclosed by the transcript. First, it appears from the transcript that the appellant's counsel had some difficulty eliciting the appellant's evidence-in-chief without asking leading questions. This was productive of a number of objections and discussion between counsel and the judge. Secondly, on a number of occasions, the appellant attempted to give evidence of what other people thought or were concerned about. Objection was properly taken to this course. Thirdly, as we have said above, the appellant was not the easiest of witnesses: a number of her answers to questions were non-responsive. For example, in evidence-in-chief, the appellant was asked and answered the following question:

Mr Galvin in the third paragraph, first sentence, of his memo [the memorandum of 27 September 2005] says, 'our discussion turned towards the possibility of paying out the bankruptcy under s 135A'. Is that a correct statement of the next topic that was discussed in the meeting? - - - The topic that was discussed in the meeting was about my being able to pay the creditors out of my draw down facilities and any other facilities or any other assets the trustee could access to pay the creditors and what the trustee considered were the debts.

85 It is clear that the appellant's counsel and the judge regarded the appellant's answer to this question as non-responsive. After an objection and further discussion, the following occurred:

APPELLANT'S COUNSEL: Alright. I want you to read the first sentence in the third paragraph of Mr Galvin's advice and I want you to say whether that is a correct statement of what was discussed at the meeting.

HER HONOUR: You've asked that and you didn't get an answer. You think you'll get it now?

APPELLANT'S COUNSEL: No. (To witness) ...

86 It is this last comment of her Honour's that we think the appellant makes complaint about. However, in the context of the appellant's evidence at trial, we see no basis for criticising the judge in respect of this comment. More particularly, there is nothing in this comment (either taken alone or in combination with all of the other complaints made by the appellant on the issue of bias) that discloses any bias on the part of the trial judge.

87 Having set out the appellant's various criticisms of the judge and the appellant's submissions on the issue of bias, we must say that we do not see any basis for any finding of bias (actual or apprehended) on the part of her Honour. We see nothing in the paragraphs of her Honour's judgment to which the appellant directed specific complaint on the issue of bias (paragraphs 10, 13, 14, 34 or 36), or indeed in any other part of her Honour's judgment, or in the conduct of the trial, which justifies any of the criticism levelled by the appellant against the judge. To the contrary, as we have said above, the judgment is measured, careful and, in our view, conspicuous in its fairness to both the appellant and the respondent. Additionally, the transcript of the trial does not suggest to us any hint of impropriety on the part of the judge (either as submitted by the appellant or otherwise). There is, in our view, simply no substance in any of the appellant's complaints concerning issues of bias, or the way in which the trial was conducted. The complaints of the appellant under this ground must be rejected.

[1] See s 43 of the Bankruptcy Act 1966.

[2] Owens v Galvin [2013] VCC 22 ('Reasons').

[7] We will deal later with the correctness of the premise upon which ground 12 is based, namely whether it is correct for the appellant to assert that she was without legal advice from 2005 to 2009, having regard to the evidence that was tendered at trial.

[8] The appellant was represented by counsel at trial, but appeared on her own behalf on this appeal.

[9] Reasons [38]-[40] (footnotes omitted).

[11] Section 153B of the Act permits a court (being the court having jurisdiction in bankruptcy under the Act) to make an order annulling the bankruptcy if the court is satisfied that a sequestration order ought not to have been made.

[12] Section 153A of the Act provides for the annulment of a bankruptcy if the trustee is satisfied that all of the bankrupt's debts have been paid in full.

[14] The minutes record that the total of the Dunn, Garms and Plowman debts comprised some $307,132.52 of this amount.

[15] It would appear from the documents tendered at trial that the appellant changed her approach some time before 29 September 2006, when the appellant's trustee in bankruptcy filed an application in the Federal Magistrates Court seeking declarations in relation to the four properties.

[18] Owens v David Lofthouse (as Trustee of the Property of Suzann Janet Owens, a Bankrupt) [2008] HCA Trans 216.

[19] In her cross-examination at T 311.31-T 312.1, the appellant said she had no solicitors for herself 'from the end of 2005 to 2009, beginning of 2009'. Further, an affidavit sworn by the appellant on 1 June 2009, and filed in the Federal Magistrates Court, shows the appellant's then solicitors, as at that date, to be MW Law.

[24] We interpolate that while no attack was made on this finding by the respondent in the course of this appeal, some might think the finding generous to the appellant. The appellant never sought to ask whether she could make a second composition proposal. Further, nothing in the evidence suggests that there would have been any reason for the appellant to labour under the misapprehension that once one attempt was made to compromise, no further attempts could be made. After all, it is the essence of appropriate dispute resolution that if one attempt fails another can be made.

[30] See s 58 of the Wrongs Act 1958. See further, Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1, 53 [146] (Malcolm AJA), 117 [362] (McPherson AJA) and 236 [649] (Ormiston AJA).

[31] The appellant referred us to T121.

[32] Cf s 58 of the Wrongs Act 1958.

[33] As to questions of breach generally, see ss 48 to 50 of the Wrongs Act 1958.

[35] As to the issues of causation in this proceeding, see generally ss 51 and 52 of the Wrongs Act 1958; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, 440 [42]-[45]; Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262, [110]-[123]; and Odisho v Bonazzi [2014] VSCA 11, [30]-[31] and [44]. While the appellant failed below on the question of factual causation (although no specific reference was made in argument to the relevant Wrongs Act sections), at trial (and before us) the respondent did not put in issue the question of scope of liability and equally the appellant did not seek to bring her case within s 51(2) of the Wrongs Act.

[36] Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934, 1944 [54] (Kirby J). See also Chappel v Hart (1998) 195 CLR 232, 272-3 and Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, [16], [24], [26], [109], [155] and [158].

[37] The appellant was being cross-examined about a letter she wrote to her former solicitors in June 2005 in which she described previous conduct of counsel (who she said in evidence was Mr Bornstein) as 'shoddy'.