Plaintiff v Defendant

1 The plaintiff, Mrs O'Keeffe applies to set aside the orders made on 23 April 2010 by the consent of the parties dismissing her claim and applies that the matter proceed before me without a jury or otherwise proceed as a cause. By a writ dated 22 August 2008, the plaintiff sought damages against her former employer, the Wyndham City Council ('the Council") for injuries she allegedly suffered in the course of her employment, allegedly because she was required to work in a highly stressful environment and was allegedly subjected to bullying and victimisation. The injuries she allegedly suffered included major depressive disorder and panic disorder with anxiety attacks. She also claimed damages for loss of earnings, alleging that by reason of her injuries her capacity for employment had been significantly impaired.

2 Mrs O'Keeffe was born on 5 July 1953. Mrs O'Keeffe is married with four children and lives in Highton, Geelong. At the time she allegedly sustained the injury, Mrs O'Keefe was employed by the Council as a unit leader in the Family Services Department.

3 On Wednesday 14 April 2010, the matter came on for trial before me and a jury of six. Mr Harrison SC and Mr M J Walsh appeared on behalf of Mrs O'Keeffe, instructed by Clark Toop & Taylor. Mr P B Jens and Ms P A Cefai appeared for the Council. After the jury was empanelled, Mr Harrison began his opening address before lunch on the first day. Mrs O'Keeffe began her evidence in chief at about 3.30pm on the first day and finished on Monday 19 April 2010. Mr Jens commenced his cross examination of Mrs O'Keeffe on the Monday morning and informed the court that he had completed his cross examination at the end of Thursday 22 April 2010. Mr Harrison confirmed that cross examination was finished so that he could confer with his client. The court then adjourned to 10.30am on Friday 23 April 2010. On Friday morning, counsel sought time for discussions and after a brief sitting in the absence of the jury the matter was adjourned to noon. I had offered the parties the opportunity to adjourn to 2.15pm if that was required. I was informed that Mr Jens would be seeking leave to continue his cross examination.

4 At about noon, the court reconvened where I was informed that the matter had settled. I was requested by both parties to discharge the jury without verdict and order that the claim be dismissed. I was requested to give the plaintiff's solicitors leave to bring an application under s 134AB(30) of the Accident Compensation Act 1985. Mr Harrison explained to me the basis on which such an application would be made. I was informed by counsel for the plaintiff that the statutory offer from the defendant was zero and the statutory offer from the plaintiff was $350,000.[1] I was informed that the compromise was $150,000 inclusive of costs and a waiver of any outstanding costs order or a vacation of any outstanding costs orders. I was informed that counsels' fees as of that day for the trial were $99,000 and that these had been discounted to $60,000. I was informed that there were in rough terms transcript and court fees of $20,000 and there were additional counsels' fees for pleadings and matters of that type which after a similar discount were in the order of $10,000 and the balance would be taken up by medical expenses. The solicitors would receive nothing in net terms.

5 I expressed the view that it may not be necessary to obtain leave to make the application and said I would be prepared to order that subject to an application being made under s 134AB(30) the claim be dismissed. Subsequently, Mr Harrison indicated that he was content with that course.

6 The jury was brought in and discharged. I then ordered by consent that subject to any claim that the plaintiff's solicitors may make under s 134AB(30) of the Accident Compensation Act 1985 the plaintiff's claim be dismissed. I then fixed Friday 30 April 2010 for the hearing of the application of the plaintiff's solicitors. On 28 April 2010, I signed a general form of order as follows:

Subject to any claim that the plaintiff's solicitors may make under sub-section 134 AB(30) of the Accident Compensation Act 1985, the plaintiff's claim is dismissed.

7 The matter came on for hearing on Friday 30 April 2010. Mr Harrison appeared on behalf of the plaintiff's former solicitors and Mrs O'Keeffe appeared in person. I was informed that Mrs O'Keeffe had terminated her solicitors' retainer on 28 April 2010. On 29 April 2010, Mrs O'Keeffe had filed a document headed "Application for Orders" in the form of an affidavit. Mrs O'Keeffe says in the document that she deposes:

(a) That the settlement signed by the plaintiff on Friday 23 April 2010 between the parties is withdrawn by the plaintiff.

(b) The matter is to proceed as two weeks of allocated time remains.

(c) The matter is to proceed by judge alone.

8 Mrs O'Keeffe had also filed an affidavit sworn 28 April 2010. I will set out her evidence at length shortly. In substance, however, she complained that she had agreed to settle under pressure. She swore she did not have an opportunity to clearly think through any of the possible options. She swears that she felt threatened and intimidated by the settlement process and was immediately unhappy with what she felt to be a denial of a full and fair hearing of her case. Mrs O'Keeffe also relied on a supplementary affidavit of 29 April 2010. In that affidavit she said she now appreciated that she needed to ask the court for orders to have her signed settlement dated Friday 23 April 2010 set aside which her legal representative tried to tender on Friday 23 April 2010. She said she was asking the court to allow the matter to proceed and by judge alone. She referred to her earlier affidavit of 28 April 2010 "in which [she] formally tried to withdraw any consent to the settlement". She swore that Counsel were pressing her to agree "under duress". I therefore took her application to be an application that the consent order and terms of settlement be set aside and that the matter proceed by judge alone.

9 Mrs O'Keeffe was informed that if she wished to pursue her application she would need to serve any material she relied on on the parties. I suggested that she obtain legal advice.

10 Mr Harrison sought on behalf of his client an order under s 134AB(30) of the Accident Compensation Act 1985. He relied on an affidavit of 30 April 2010 of Patricia Faye Toop, a partner with Clark Toop & Taylor, who had the care, conduct and carriage of Mrs O'Keeffe's action. I adjourned the former solicitors' application for a date to be fixed and suggested to Mrs O'Keeffe that she serve the existing material and any further material on the Council and her former solicitors.

11 On 14 May 2010, Mrs O'Keeffe filed an affidavit in response to the affidavit of Ms Toop of 30 April 2010 in support of the order under s 130AB(30) dealing with the costs agreement with Clark Toop & Taylor.

12 On 19 May 2010, Clark Toop & Taylor sent their account to Mrs O'Keeffe detailing their outstanding solicitor client costs and disbursements in her matter. The account was for $232,958.88 which included disbursements of $158,958.88.[2] On 25 May 2010, Thomson Playford Cutlers, the solicitors for the Council, informed Clark Toop & Taylor that they had become aware that Mrs O'Keeffe had terminated the services of Clark Toop & Taylor and that they intended to request their client to pay Mrs O'Keeffe the settlement sum directly. Clark Toop & Taylor asked Thomson Playford Culters not to do so until they had applied for an injunction that the settlement moneys be paid into court, pending the resolution of Mrs O'Keeffe's "mooted appeal" or further order. They asserted a professional lien in respect of the settlement sum of $150,000.

13 By a summons dated 26 May 2010, Clark Toop & Taylor sought the injunction foreshadowed and that day Davies J ordered that the sum of $150,000 payable to the plaintiff by the defendant pursuant to a settlement between the parties made 23 April 2010 be paid by the defendant into court to be retained until further orders. Further orders were made about service on Mrs O'Keeffe, who had not appeared. The summons was supported by an affidavit sworn 26 May 2010 of Mr Travis Fewster, a solicitor in the employ of Clark Toop & Taylor. The affidavit exhibited an unsigned disclosure statement. He also exhibited an authority signed by Mrs O'Keeffe authorising settlement by accepting an offer of the defendant.[3] The summons of 26 May 2010 was adjourned to Wednesday 2 June 2010 in the Practice Court where it came on before Hargrave J.

14 On 31 May 2010, Mrs O'Keeffe swore an affidavit in response to Mr Fewster's affidavit of 26 May 2010. I have not seen the transcript of the hearing before Hargrave J for 2 June 2010. Hargrave J ordered that Mrs O'Keeffe's application of 29 April 2010 be adjourned to 3 June 2010 before me.

15 On 3 June 2010, the application of 29 April 2010 came on for hearing before me. Mr Ingram of counsel appeared for Clark, Toop & Taylor. Mrs O'Keeffe appeared in person. Mr Ingram informed me that Mrs O'Keeffe's application was before me and that if I were to dismiss her application then Clark, Toop & Taylor would seek an order that the sum of $150,000 be paid out to Clark Toop & Taylor. I then commenced to hear Mrs O'Keeffe's application. Mr Ingram informed me that Mr Jens, Mr Walsh and Mr Harrison SC were available to be cross examined by Mrs O'Keeffe. Mr Ingram proposed that he would call them and establish the formal matters and then make them available for cross examination. The hearing extended over to 4 June 2010. On that day Ms Toop appeared for Clark Toop & Taylor. Mr Jens who had been called as a witness on 3 June 2010 sought leave to appear as counsel for the Council, despite having been a witness the previous day. I granted leave as there did not appear to be any issues to resolve concerning Mr Jens. Mrs O'Keeffe confirmed that she was applying for orders that I continue to hear the case without a jury or that the matter be adjourned to be heard without a jury as a cause.

16 For the reasons set out below, I dismiss Mrs O'Keeffe's applications and grant the application of Clark, Toop & Taylor.

17 In her affidavit of 28 April 2010, Mrs O'Keeffe deposes as follows. She says that in April 2008 she was granted leave in the County Court of Victoria to sue at common law under both heads of claim of pain and suffering and economic loss. She says her case was listed for hearing in the Supreme Court when she asked her solicitors, Clark, Toop & Taylor ("CTT") about the choice of the Supreme Court as a forum, when she was happy with the County Court outcome. Their response was, "Because they have better judges".

18 She says she was previously informed by CTT that her case was one of the worst cases of workplace bullying they had represented. She refers to the independent medical examination of Dr Nigel Strauss, who stated in his first examination report:

I have no doubt that this woman was harassed and victimised in the workplace.

19 In March 2009, she informed CTT of her desire to attend the directions hearing scheduled for 3 June at the Supreme Court as she had instructed CTT that she wanted her hearing listed in 2009. The email response from Patsy Toop was:

I am concerned that you will attend a directions hearing. If you wish to take over the conduct of your litigation and represent yourself personally, please advise and I will file the necessary papers to withdraw as your practitioner.

20 Mrs O'Keeffe says she felt intimidated by the threat to withdraw, as she could not, under a disability, run a case in the Supreme Court. She says she acquiesced to her request.

21 She says that CTT requested at the 3 June 2009 directions hearing that the case not be listed for hearing prior to November 2009. She says that the defendants requested a five week hearing allocation. CTT informed her that a five week free calendar for the Court was challenging. She suggests that she was told nothing could be done - "This is the court system". She then appears to quote her solicitors, saying: "If you have a complaint to take it up with the politicians as they make the law". To her disappointment, her case was scheduled for hearing on 13 April 2010.

22 She says that in 2009, CTT informed her that she would be on the stand for one day for a scheduled five week trial. She was surprised by this, and did not feel she could give her evidence in one day. CTT informed her that most of the Court time would be required by the defendant.

23 She says her economic loss was approximately assessed at $1.2 million and the claim for pain and suffering was unquantifiable. CTT estimated that, if successful, she would receive around $600,000. This would not fully compensate her for her losses, but she felt it was a fair outcome and would have accepted such an offer.

24 She says that in 40 years of working life, she had submitted two WorkCover claims on recommendation of her medical practitioner. Both related to periods where she was under stress caused by former employers' negligent discriminatory behaviour. Both claims were accepted and council by-laws changed.

25 She says that she submitted a 1999 WorkCover claim after her resignation from employment on legal advice. She received weekly payments for approximately three months and then notified the WorkCover insurer that she wished to decline further payments as she had made the decision to stay home and care for her children. She says that during periods of employment, she suffered three physical injuries at work and chose, on each occasion, to pay the medical costs, as she had no desire to access the WorkCover system.

26 She says that on Thursday 8 April 2010, she contacted the urgent applications after hours contact number of the Supreme Court to inquire about the process to cancel her solicitor's retainer, as CTT had been unable to retain senior counsel on her behalf. She followed their advice and arrived at the Registry Office just after lunch on Friday 9 April 2010. On speaking to counter staff, it appeared that before she could file her affidavit to cancel CTT's retainer, she was required to personally inform them of this. She was under the impression that she could file the affidavit first, then inform, but obviously she misunderstood this.

27 She says that at around 3.00pm on Friday 9 April 2010, she attended CTT's offices to inform them that she was cancelling their retainer. Before she could do so, she was informed that they were just waiting on a phone call from a Senior Counsel who may be retained to act on her behalf. Mrs O'Keeffe asked, given the length of time of her Supreme Court claim and the two year lead-up from the County Court, why was her case having difficulty retaining a senior counsel. Mrs O'Keeffe says that Mr Travis Fewster, her junior lawyer, answered her by saying, because her case was a "dirty nappy". Mrs O'Keeffe says she requested an explanation of this comment and that Mr Travis Fewster responded, "Because it smells".

28 She says that at 4.45pm, junior counsel who had been briefed and accepted the brief on condition that a senior counsel be retained, telephoned CTT and Mr Travis responded, "Walsh: idle banter, 150,000K all in". Mrs O'Keeffe says she has no understanding of this comment. She says a senior counsel's clerk called at around 5.00pm to accept the brief, but Mrs O'Keeffe was informed that the case may not be heard on 13 April 2010, as a judge may not be available. She says she had waited two years to have her case heard, and yet one working day prior to trial, there was no judge appointed.

29 She says that from mid morning on Monday 12 April 2010, and all day Tuesday, senior counsel and junior counsel were briefed. All discussions were positive, witnesses considered excellent and medical records supportive of her claim. Later in the day, Mrs O'Keeffe was informed by counsel, or maybe the lawyer, Travis, that unfortunately, she had drawn the "bad" judge.

30 She says that on Wednesday 13 April 2010, prior to Court, an unsatisfactory offer of settlement made by the defendant was rejected by her on the advice of senior counsel. She was unsure whether it was senior or junior counsel who made the statement that the "defendant barrister did not want to conduct the case".

31 On Thursday 14 April 2010, prior to Court, another unsatisfactory offer of settlement was made by the defendant and rejected by her on the advice of senior counsel. Mrs O'Keeffe was unsure of whether it was senior or junior counsel who stated that the defendant barrister "did not want to conduct the case". She says she was informed that the Council and the insurer were keen to settle, but the Victorian WorkCover Authority would not allow it.

32 She says that on Friday 15 April 2010, prior to Court, another unsatisfactory offer of settlement was made by the defendant and rejected by her on the advice of senior counsel. She is unsure who stated again that the defendant barrister "did not want to conduct the case", but on this occasion, senior counsel or junior counsel also stated that the defendant barrister "is prepared to offer his own personal funds to assist in securing a settlement".

33 She says that the following week, from Monday to Thursday, she was cross-examined until the close of court on the Thursday afternoon. Senior counsel informed her that re-examination would occur first thing on Friday morning, 16 April 2010, as other witnesses were ready and available to attend court. Junior counsel informed family members, who were being called as witnesses, that their attendance was not needed until Thursday 27 April 2010. Mrs O'Keeffe says she informed primary family supporters that the most difficult part of the trial was over for her and asked them to return to work.

34 Mrs O'Keeffe says that she was informed, upon arrival at court, by senior counsel that the defendant was granted leave to further cross-examine her about an organisation called Whistleblowers Australia ("WBA"). She says she had a past association with the organisation when she helped organise a conference in 2004. She says that, "I am not a current member but remain friends with a few of the other members".

35 She says that on the previous court hearing day, in her response to a question from the defendant regarding why she had not listed all current illnesses on her Red Cross job application, she responded that if she chose not to declare them, these illnesses or diseases would not be accepted in any future WorkCover claim. She responded, "I would never put in another WorkCover claim". A juror was heard to exclaim, "Yeah, right!".

36 She says that the next morning, junior counsel informed her of the comment made by the juror and that it was audibly heard by junior counsel, the plaintiff's lawyer and the judge's Associate. She says senior counsel returned to the room and stated, "The case cannot continue as at least one juror is against you, and in our experience that is all it takes". She says that she protested, as her witnesses who were yet to be heard may change the juror's mind. They said, "No, once a juror decides they do not like you, that's it".

37 She says that she instructed counsel, given this information, to make an application to the court to have the jury discharged and for the case to continue with the judge alone, which was her preference before she knew that this choice lay with the defendant. She says CTT knew this and had said that if there was any way they could discharge the jury, they would.

38 Mrs O'Keeffe says that junior counsel stated, "This judge is bad and very harsh. It is his first civil personal injury trial and he does not like these kinds of cases. Trust me - I know him personally". She says she became distressed and commenced crying. Both counsel left the room and she was left alone with Patsy Toop, who was nonchalant. She says that counsel were "to-ing and fro-ing from the room and [she] could not keep track as she was too distressed". Counsel returned and stated that the Victorian WorkCover had made an offer of $150,000 "all in". Counsel also stated, "Your complaint regarding the Victorian WorkCover Authority in 2004, had made them ... with you".

39 She says that the lawyers and counsel started discussing their respective costs and stated that the offered amount of $150,000 would not cover their legal costs, so they would have to take a reduction, and they would just have to accept $150,000 as full payment. They said, "You will owe us nothing". Mrs O'Keeffe says she was crying and visibly upset. Counsel and lawyers were busy writing on blue notepads across the table from her. They turned the pads to face her and requested that she sign both pads. Counsel stated, "You have had a win and this is the best you can do". She says that she kept on crying.

40 Mrs O'Keeffe says she instructed counsel to run the case for one more day and said, "I will pay costs right now". As she had her cheque book in her handbag, she told them her waiting witness would help her case, as the witness also had a WorkCover [claim] accepted for workplace bullying by the same staff.

41 She says that she instructed counsel through tears to continue her case for one more week and she would pay their costs. She stated, "We must hear my witnesses' testimonies". She says that she was still distressed, crying, and their response to the previous point was, "Don't be ridiculous".

42 She says that counsel continued to press her to sign their handwritten notes, but she could not read them due to the tears in her eyes causing her pain and vision problems. At this point in her affidavit she refers to her eye disease. She goes on to say that they continued verbally pressing her to sign and stated that they were suffering a loss and had done everything that they could for her.

43 She says she was still distressed, crying and began feeling guilty for their loss. She verbally stated that she did not want to sign. Mrs O'Keeffe states in her affidavit, "Senior counsel commands, "Mrs O'Keeffe! Will you please instruct me to tell them the offer is accepted"." She says that she felt close to collapsing under this pressure and she "reluctantly/gladly signed the documents so that the pressure would stop."

44 She says that counsel hurriedly left the room. She says Patsy Toop appeared pre-occupied with her mobile phone while Mrs O'Keeffe cried on. She says she attempted to get her attention, but she showed no interest in her, or her distress. Mrs O'Keeffe left the room for a few minutes. On her return, she gained Patsy's attention by saying that she apologised that she pushed on for her hearing to be heard on 30 April 2010 instead of Ms Toop's wanted adjournment date of November 2010. She says she explained to Ms Toop that she had no choice.

45 Mrs O'Keeffe says that as 19 April 2001 was the day of her emotional death, that 19 April each year scares her, as on this date she often feels that she may take her life. She says she was crying uncontrollably when Patsy Toop looked up from her phone and told her, "Don't be so selfish". She says she took a few minutes to compose herself and returned to the Court.

46 She says the jury returned and sat in the chairs behind her. From her understanding, the jury was informed that the matter had settled, they were thanked and discharged.

47 She says two people present in the courtroom left just after the jury and stood out on Lonsdale Street talking. She says they looked down the street and saw John Circosta, an officer with the Council, standing with four jury members, smiling and shaking their hands. She says that as John always sat behind her, Mrs O'Keeffe did not notice that he had left shortly after the jury. Mrs O'Keeffe says that counsel requested that Robson J write his orders immediately, however he reserved his orders until the next Friday, 30 April 2010 at 9.30am in Courtroom 5.

48 She says that given the above, she feels at a disadvantage, for she did not have an opportunity to clearly think through any other possible options. She says she felt threatened and intimidated by the settlement process and was immensely unhappy with what she felt to be a denial of a full and fair hearing of her case, which she says was many years in the making.

49 Mrs O'Keeffe was not cross examined on her affidavit.

50 Before Mr Jens was called by Mr Ingram, I asked Mrs O'Keeffe what she wished to establish from her cross-examination of Mr Jens. In substance, she told me that she wanted to establish that the defendant acted unfairly in the running of the trial.

51 Mrs O'Keeffe asked Mr Jens about several matters that he raised in cross-examination: for example, questions about the car she drove, her rostered days off, a trip to America, and suggested that these were designed to prejudice her in the eyes of the jury. Mr Jens did not agree. She also put to Mr Jens that these questions were being put as delaying tactics. Mr Jens also denied that suggestion.

52 She also put to him that he had asked her about the prior complaints she had made, and she made the point that she was only availing herself of the rights which were made available to her in the Magistrates' Court, VCAT and before the Privacy Commissioner.

53 Mr Jens was then asked about the settlement offers. He said he recalled that the offers that were made were all made inclusive of costs. The first that he recalls was that the defendant agreed to pay the plaintiff in full settlement of the plaintiff's claims $120,000 inclusive of costs. He said that offer was made on Wednesday, 21 April. The next offer he says he recalls was an offer of $150,000 all in. He says he received a call on the Thursday evening from junior counsel asking whether the $150,000 was still available. On the next morning, he was asked whether the offer could also include vacating a formal order in the defendant's favour from the County Court. Mr Jens said he received instructions to make that offer, he put it to Mrs O'Keeffe's team, who went away, and he said he took no part in that, and waited for their response. He said he was waiting in Court when Mr Harrison came in and said that the defendant's offer had been accepted.[4]

54 Mrs O'Keeffe asked whether or not Mr Jens had said that he did not want to do the case. Mr Jens said that what he had said was he did not want to be stuck in a case of that nature for five or six weeks. When he was asked whether he was keen to see it finished pretty quickly, he said he would prefer the case to be finished sooner, rather than later.[5] Later on, he made it clear that, like most barristers, he would like the case to be resolved sooner rather than later. He was asked questions about whether he had been booked up. He said that he was not sure but he did say, "Once I was - when I with due humility, once it was realised I was available, I would have been snapped up".[6]

55 Mrs O'Keeffe did not put to Mr Jens that he was in any way aware of what she alleges had taken place at the settlement discussions with her own lawyers.

56 Mr Walsh was asked about his retainer. He initially said he was retained with Mr Tim Tobin SC, then briefly with Mr Meldrum QC and then finally, on the Friday before the hearing, with Mr Harrison SC.

57 He was cross-examined about the time he spent in conference before the trial with Mrs O'Keeffe and other witnesses. He says he spent about eight hours with Mrs O'Keeffe.[7] It was put to Mr Walsh that the time spent by Mr Walsh in conference with witnesses, who numbered about 20, was not adequate in view of the anticipated length of the trial, being five weeks. Mr Walsh merely responded that that was Mrs O'Keeffe's opinion and was then cut off.[8]

58 Mr Walsh was asked whether he conducted any trial in the week following the settlement. He said that on the Tuesday following, he was in chambers, but he probably did appear the next week. It was put to him that he had cases ready to go and he explained that that was not an unusual situation. I suggested to Mrs O'Keeffe that if she wanted to put to Mr Walsh, that he had urged her to settle because he had some other commitment, she should do so expressly.[9] Mrs O'Keeffe did not do so. Mr Walsh was asked whether, in the two weeks after 23 April, he was involved in another case. He said he had not checked, but he could say that there was no greater priority on his legal calendar, on 23 April when the matter resolved, other than Mrs O'Keeffe's case.[10]

59 Mrs O'Keeffe took Mr Walsh to the settlement offers. Mr Walsh said that he did not keep a record of the settlement offers. He believed Mr Harrison kept a record in his book.

60 Mr Walsh was asked whether, on the afternoon of Thursday 22 April, he heard a comment made by the unemployed Greek juror. Mr Walsh said that he did, that he heard the juror mutter audibly, "Yeah, sure". Mr Walsh read from a memorandum he had written of the incident the following week. The comment arose when Mr Jens had asked Mrs O'Keeffe about an application for employment she had made to the Red Cross. On that application form, she was asked to list any pre-existing illnesses or injuries that may impact on her ability to carry out her role in the Red Cross. Mrs O'Keeffe had listed Graves' disease as her only condition. Mr Walsh had recorded in his memorandum:

The plaintiff did not give any details about any ongoing psychiatric or psychological condition at the time, and that was in about 2007. When pressed as to why Mrs O'Keeffe did not disclose any psychiatric condition to the Red Cross, Mrs O'Keeffe replied 'You didn't need to. If you chose not to declare any other injuries or illnesses, it just meant that if they were exacerbated in the workplace, well you wouldn't be able to make a claim and I was not ever going to make another claim', and in response, Mr Jens said 'Well, that would be a first, wouldn't it? You said you made a claim against South Barwon, you made multiple claims against the City of Wyndham and you declared you're now certain to yourself no claims against Red Cross, and your response 'I was never going to make another claim' in response to that, the Greek juror muttered audibly, 'Yeah, sure'.

61 Mrs O'Keeffe put to Mr Walsh that she had been told about this jury comment on the Friday morning before the settlement. He agreed that was the case. It was then put to him that Mrs O'Keeffe had instructed him and Mr Harrison on the morning of 23 April to seek the leave of the court to have the jury discharged. Mr Walsh denied that. He said it was discussed, but that Mrs O'Keeffe did not instruct counsel to do that. Mr Walsh said that there was a discussion about discharging the jury, but that led on to the fact that if the jury was discharged, the judge was likely to go on and hear the matter himself. Mr Walsh said that Mrs O'Keeffe was advised that Robson J would apply the law and, in particular, the High Court decision of Koehler v Cerebos, which Mr Walsh said would not auger well for Mrs O'Keeffe on the evidence so far adduced.[11]

62 Mrs O'Keeffe expressly put to Mr Walsh that he was requested to seek the leave of the court to dismiss the jury and continue on a judge alone. Mr Walsh disagreed. Mr Walsh said that he believed it was sensible, from what he had heard after the juror's comments, to go back to the defendant to determine whether the defendant was in a position to make another offer of $150,000.[12]

63 On Thursday, Mr Walsh said that the plaintiff's husband, Des, was urging the plaintiff to accept that offer, but Mrs O'Keeffe did not. Mr Walsh said that after hearing the juror's comments on the Thursday, he took the initiative to speak to Mr Jens and asked whether he was able to resubmit the offer. He says that on the Friday morning the discharge of the jury was discussed. The offer of $150,000 was again discussed. He says that on the previous day they had instructions from Mrs O'Keeffe to accept $180,000 all in. Mr Walsh said they went back to Mr Jens and asked whether the defendant would vacate an outstanding County Court costs order against Mrs O'Keeffe.

64 Mr Walsh said that they discussed dismissing the jury and the view they came to was that it would make no difference. Mr Walsh said that he considered that vacating the County Court offer was implicit, but they went back to Mr Jens to clarify that in fact the County Court offer would be vacated. They obtained that clarification.

65 Mr Walsh was asked about the conversation he had with Mrs O'Keeffe and the reference to the bad judge. Mr Walsh rejected that Mrs O'Keeffe was ever informed, "This judge is bad and very harsh". He said that he told Mrs O'Keeffe that on the evidence, the judge would not be very sympathetic to her case as he is a man who will apply the law.

66 Mrs O'Keeffe put to Mr Walsh that, after the conversation about the judge not being sympathetic to her case, she became anxious and started crying. Mr Walsh said that he recalled that the plaintiff was in a coherent and responsive frame of mind. He said that if she did cry, it would have been the briefest tear and it would have been a fleeting second. He says that there was no indication Mrs O'Keeffe was distressed at all, but for a very brief moment when she was faced with the reality that her case was over. Mr Walsh, when pressed about the matter, said he did not think he noticed any tears at all.[13] Mr Walsh confirmed that immediately after they had Mrs O'Keeffe's instructions to accept the offer and were informed that she had signed the authority that the instructing solicitor prepared confirming her instructions, he and Mr Harrison came straight into Court.[14]

67 I asked Mr Walsh whether it was his evidence that he did not leave her presence until he had her agreement to accept the $150,000. He replied:

That's correct, Your Honour, all four solicitors - the two solicitors and two barristers were present in the room when she agreed to - when she signed the instructions to resolve the case, and at that stage, Your Honour, if we - if I was of the view that there was any distress or concern, her daughter was sitting just outside the room, and she could have - obviously would have sought her assistance. About no more than two minutes later we were convening again in this Court. The plaintiff was sitting behind me, she heard Your Honour discharge the jury, and she heard Your Honour make the final orders. There was - and she was there the whole time, at no stage was I - did I form the view that she did not provide - did not understand the extent of her instructions.[15]

68 Mr Walsh said that he and Mr Harrison were acting in Mrs O'Keeffe's best interests and that he did not see any distress on Mrs O'Keeffe's part. Mrs O'Keeffe said from the Bar table that she commenced crying and that you could not witness her anxiety as that was a feeling inside. She then said, "I was crying but both counsel had left the room at that time".[16]

69 Mr Walsh agreed that there was a discussion that counsel would be taking a reduction in what they would normally be paid. It was put to Mr Walsh that the comment was made, "You will owe us nothing"[17] and Mr Walsh agreed it was made very clear to Mrs O'Keeffe that she would not owe any money and there would be no costs order against her, that all her legal costs would be paid and that, unfortunately for Mrs O'Keeffe, there would be no money to compensate her after the payment of costs.[18]

70 Mrs O'Keeffe put to Mr Walsh that she instructed him to run the case for one more day and offered to pay the costs then as she had her cheque book in her handbag. Mr Walsh said that Mrs O'Keeffe did not say she had her cheque book in her handbag, but she did indicate that she wanted another day and she said on a number of occasions that she wanted one more day.[19]

71 Mr Walsh said that he advised the plaintiff that she should accept the offer. He also said that she was advised of the prospect of her losing her trial after six weeks and getting a costs order against her in favour of the defendant. He said that she was advised that the current VWA policy was that they "don't chase the legal costs", however, this policy is reviewed from time to time and if she was unsuccessful and she received a costs order against her name personally, that her ownership of the house that she owned jointly with her husband could be jeopardised. Mr Walsh said that was one of the factors which they considered in the totality of the situation.[20]

72 He also said that they considered Mrs O'Keeffe's psychological state. Mr Walsh said that he did say to Mrs O'Keeffe that the consequence of losing a trial would be devastating for a woman who has spent so much time dealing with issues that have arisen out of her employment.[21]

73 At this point, I reminded Mrs O'Keeffe that if she wanted to put to Mr Walsh that something improper had happened before she agreed to settle, she should put those matters expressly to Mr Walsh. In response, she said that Mr Walsh responded to her quite sternly[22] and she said that she felt threatened and had both Mr Harrison and Mr Walsh standing over her, "pushing and pushing and pushing". Mr Walsh denied that and said that in fact at the time the instruction to settle was given they were all sitting down.[23]

74 Again, Mrs O'Keeffe put to Mr Walsh that, despite Mr Jens' offer, she wished the case to be run a further day. Mr Walsh disagreed. He said that Mrs O'Keeffe asked the question whether the case could run one more day, and his belief is that she was advised that the defendant had said that the offer would only remain open until the finish of the cross-examination. He denied that there was any reference to a cheque book.[24]

75 Mrs O'Keeffe said that she had Mrs Brenda Bedford, a major witness and referred to her as being "gold", ready and waiting to give evidence. Mr Walsh says he could not recall the reference to "gold".[25]

76 Mr Walsh said that he had discussions with Mrs O'Keeffe's husband on the Thursday at lunch time and that he recommended that Mrs O'Keeffe accept the $150,000.[26] Mrs O'Keeffe said she was not told about it on the Thursday and Mr Walsh agreed that was the case, but he says that he did discuss it with Mr O'Keeffe.

77 In re-examination, Mr Ingram asked Mr Walsh about the juror's comment. Mr Walsh said he did not believe that the comment itself would have justified the court's discharge of the jury.[27] Mr Walsh said that the comment went to the issue of credibility and that he and Mr Harrison had formed the opinion that the plaintiff's credit was substantially damaged due to a combination of matters, not the least of which was her history of complaints against a number of organisations, including complaints against her former employers, those working within those organisations and the union representing her, which was unusual to say the least.[28] Mr Walsh said that the plaintiff had instituted something in the order of seven legal proceedings relevant to her complaints against the City of Wyndham or its employees. He said that the individual complaints did not, in themselves, amount to a significant attack on the plaintiff's credit, however, when all the complaints were examined in total, they were susceptible to an interpretation that the plaintiff was and is particularly aggressive and unreasonable. He said some of her bizarre conduct included a complaint to the DPP and an application to the Federal Court for breach of contract and prejudice under the Trade Practices Act against the union who was representing her. Mr Walsh said there were many small credit points which, individually did not significantly damage the plaintiff's credit, however, in combination, they created a very different picture. He said that towards the end of her cross-examination, and particularly when she was being cross-examined about her application to the Red Cross, he formed the impression that the jury was not impressed by the plaintiff.[29] He said that his opinion was that this case was going to be a disaster.[30] He said that the juror's comment merely confirmed his belief.[31] Mr Walsh was of the view that discharging the jury would not solve that credit problem. Mr Walsh confirmed that he thought the High Court case of Koehler applied to the facts of the case.[32]

78 Patricia Toop is a partner of Clark, Toop & Taylor, the former solicitors for Mrs O'Keeffe.

79 Under cross examination by Mrs O'Keeffe, Ms Toop agreed that there was difficulty securing senior counsel for a five to six week trial on a no win, no fee arrangement.[33] When Mrs O'Keeffe sought to pursue this issue, I indicated to her that I did not think it was relevant to her suggestion that she was pressured into settling. Mrs O'Keeffe replied that the pressure was not just on the morning of settlement, but that the pressure had been building up for weeks because she had been told that she had counsel, then told that she did not.[34]

80 Ms Toop said that in conference on the morning of the Friday, they discussed the extant offer of $150,000, the juror's comment and whether an application should be made to discharge the jury or not. Ms Toop did agree that it was Mrs O'Keeffe's preference, if possible, to have the matter heard by judge alone.

81 It was put to Ms Toop that junior counsel stated, "This judge is bad and very harsh, it's his first civil personal injury trial and he does not like these kinds of cases trust me, I know him personally". She denied hearing that statement being made.

82 Ms Toop said that there was a conversation about the trial judge and that she had made a note of it as follows:

Matt advised Lorrie that he knew the judge and that he was a good man but this was his first jury trial. Further, he would probably be conservative but moreover he had a reputation of being an excellent black letter lawyer, therefore applying the principles of the case law he would have difficulty finding in her favour.[35]

83 It was put to Ms Toop that Mrs O'Keeffe became stressed and started crying before the offer of $150,000 was discussed. Ms Toop said that in fact the $150,000 offer was discussed on the previous occasion at a conference between 10.30am and 10.55am on Thursday 22 April, and that she had a file note of the conference at which her assistant, Travis Fewster, attended.[36]

84 Ms Toop said that senior counsel, junior counsel and herself each recommended that Mrs O'Keeffe accept the $150,000 offer. She said that Mr Harrison recommended it after carefully going through the pros and cons of the whole case.[37]

85 She agreed that when counsel left the room to confirm the offer, Mrs O'Keeffe became teary, but then she composed herself and then counsel came back in, confirming that the $150,000 offer was still available with the vacation of the County Court costs order. She said that this was when the matter ultimately resolved, when Mrs O'Keeffe accepted their advice and signed an authority.[38]

86 Ms Toop said that Mrs O'Keeffe's daughter was sitting outside Court. Ms Toop says that she suggested to Mrs O'Keeffe that her daughter come into the room while they were discussing the matter, and Mrs O'Keeffe said that she did not want her daughter to be with her.[39]

87 Ms Toop said that the authority that Mrs O'Keeffe signed was in her handwriting.[40] Ms Toop denied that Mrs O'Keeffe was crying when she was presented with the document to sign. On the contrary, she said that Mrs O'Keeffe was quite composed.[41]

88 Ms Toop said that despite the observation by the juror, Mr Harrison had already provided extensive advice that the case was not travelling well.[42]

89 Ms Toop said there was no evidence of complaint by Mrs O'Keeffe that the stress caused by her work had any detrimental effect upon her and it was not until after she ceased work in November 2000 that the defendant might have known about her psychiatric disorder. She said they considered the principles of Koehler and they formed the view that Mrs O'Keeffe was at great risk in terms of not succeeding.[43]

90 Ms Toop referred to the evidence that Mrs O'Keeffe had not reported to her superiors that she was suffering from Graves' disease until the mediation on 25 October 2000, and that again impacted upon her ability to work and was of grave concern to her advisers in terms of foreseeability. She said they were also concerned about the cross-examination that had taken place in terms of the credit issues, and that confirmed their advice to Mrs O'Keeffe that it was most appropriate for her to take the offer of settlement and not to risk an adverse costs order against her if she failed.[44]

91 Ms Toop confirmed that during the morning, Mrs O'Keeffe did say to her that she wanted the case to keep running, but that when the offer was confirmed, she denied that Mrs O'Keeffe said that she did not want to settle. Ms Toop again read from her notes as follows:

Craig said, 'We've been given this - we've given this the best run that we possibly could, you prepared your documents impeccably and you're a wonderful resource for the preparation of a case, but we are not going to win'. Then you said 'Well, if you say so'. Craig then said, 'Lorrie, I will only act upon your instructions, I will not settle your case any other way, because quite frankly, Lorrie, I don't want you to lodge a complaint against me. So, Lorrie, will you please instruct me to settle your case on these terms?', and you said, 'Yes, I will' and I prepared the written document outlining your instructions to settle.[45]

92 Mrs O'Keeffe then said in response that the tones of the voices were not pleasant, they were intimidating. She felt intimidated. She felt threatened. She felt she was going to make somebody very angry if she did not do what everybody wanted her to do.[46]

93 Ms Toop said that Mr Harrison certainly did not raise his voice, but he was "very calm, very even, very level about it. There was no intimidation. Absolutely none".[47] Mrs O'Keeffe said from the Bar table that senior counsel demanded in a very stern voice, "Mrs O'Keeffe, will you please instruct me to tell them the offer is accepted".[48] I asked Ms Toop whether Mr Harrison raised his voice and, rather than pose a question, make a demand. I asked her what she had to say about that and Ms Toop said it was absolutely untrue.[49]

94 Mrs O'Keeffe put to Ms Toop that when she pushed the blue pad towards her, Mrs O'Keeffe had difficulty signing her signature and she was crying so badly that she could not see out of her eyes. Ms Toop denied that and said that at the time she signed, she was certainly not crying.[50] Ms Toop added that Mrs O'Keeffe had stopped crying before she went out and had her cigarette and then came back, and it was at the stage when she came back after having a cigarette that they had the discussion with counsel who confirmed the offer and the "sweetener". She then signed the authority. Ms Toop said the tears had stopped before she went out and had her cigarette.

95 Mrs O'Keeffe put to Ms Toop that she had offered her a mirror to fix up her mascara because she had been crying. Ms Toop said she did so, but that was before coming back into court. When she asked her whether she looked like she had been crying, Ms Toop said, "You look fine". Ms Toop agreed that she offered her the mirror so that she could clean up the mascara on her eyes. She said it was just a few dots of mascara. Ms Toop said that she did tell the court that Mrs O'Keeffe had been tearful when they were in the room together. Ms Toop confirmed that was the occasion when counsel had gone out of the room and she was left in the room alone with Mrs O'Keeffe. She said Mrs O'Keeffe went out and had the cigarette before counsel came back. She came back into the room after a cigarette and then counsel came back and the new offer was discussed.[51]

96 Mr Fewster is a solicitor employed by Clark, Toop & Taylor and was, in large part, the instructing solicitor present in Court when the trial was running in the matter of O'Keeffe v Wyndham City Council.

97 Under cross examination, it was put to Mr Fewster by Mrs O'Keeffe that Clark, Toop & Taylor had several other cases running at the same time as hers. He was asked whether there was any intent on his part to ensure that her case would be over in time to move onto these other cases. He said it would not have mattered, as he had support staff to support him.[52]

98 Mr Fewster was asked whether he was present on settlement day and he said that he was. He was asked whether Mrs O'Keeffe appeared to be happily signing the settlement agreement. Mr Fewster said that he did not think she was happy about it. He did think that she was resolved to the fact that she was going to lose. Mr Fewster said that he had written instructions from Mrs O'Keeffe to try and settle the case the day before. Mr Fewster agreed that he saw Mrs O'Keeffe teary when Ms Toop was having a bit of a chat to her while counsel were out of the room.[53]

99 Mr Fewster was asked about the way Mr Harrison addressed Mrs O'Keeffe when counsel returned after confirming the defendant's offer with Mr Jens. Mr Fewster said that Mr Harrison was a consummate gentleman in the way he addressed Mrs O'Keeffe. He says that he thought Mr Harrison said "Listen, Lorraine, we've got to do this... in your best interests", or something to that effect.[54] He did not remember what was said verbatim but Mr Fewster said, "I just know that he was trying to guide her for the fact that it was dead in the water".[55] Mr Fewster said that he would have run the case for as long as it needed to be run.

100 I asked Mr Fewster, "Was there anything said that morning 'If you don't take this, we're not going on' or, 'We're dumping the case' or, 'counsel won't appear'?". Mr Fewster said there was nothing said along those lines, nothing at all. Mrs O'Keeffe said from the bar table that that was certainly how she felt. I said to her, "But you're not saying that was said, are you?", and Mrs O'Keeffe replied, "I think there may have been words to those effects, yes". I said, "Well, anyway, well this witness denies it", and Mrs O'Keeffe said, "OK, I think that's all for now, thank you, Travis". The witness withdrew.[56]

101 Mrs O'Keeffe questioned Mr Harrison about his engagements which suggested that she may have been putting that he had recommended settlement of the case so that he was free to do other matters that he had been engaged to do. Those allegations were never put to Mr Harrison directly. Nevertheless, he was asked questions about his engagement. In particular, he said that he did have a mediation booked for 2.15 pm on the afternoon of Friday 23 April, which he had overlooked. He said, however, that if the case had gone on, he would have sought to arrange the mediation for 4.30pm or otherwise accommodate the requirements of the parties.[57]

102 Mrs O'Keeffe raised the juror's comment with Mr Harrison. Mr Harrison said that he did not hear it, but that when told about it by Mr Walsh, he checked the authorities to see whether it provided grounds for an application that the jury be discharged. He said he formed the view that in all the circumstances, it was likely that such an application would be unsuccessful.[58]

103 Mrs O'Keeffe put to Mr Harrison that he was aware that Mrs O'Keeffe always wanted the matter dealt with by judge alone. He denied that and said it was the first he had heard of it. He agrees that the discharge of the jury was discussed on the Friday morning, but that he and Mr Walsh were the first people to raise that issue. Mr Harrison said that Mrs O'Keeffe said that would seem to be a good idea, but that he and Mr Walsh advised that such an application would be unsuccessful and therefore there was no point in making it. Further, he said that he informed Mrs O'Keeffe that if the matter proceeded with a judge alone, the case would not improve because of the problems they faced by the High Court's decision in Koehler. He said they advised Mrs O'Keeffe that the evidence was pretty clear that there was no basis upon which the City of Wyndham would have had knowledge of Mrs O'Keeffe's particular psychological susceptibility which had been established by Mr Jens' cross-examination. He said that whether they had a jury or a judge, they were in trouble.[59]

104 Mrs O'Keeffe took issue about whether Koehler's case applied with Mr Harrison. Mr Harrison said that they were always apprehensive about Koehler's case and its application to Mrs O'Keeffe's claim.[60]

105 Mr Harrison categorically rejected that Mrs O'Keeffe had instructed him to apply to the judge to have the jury discharged.[61]

106 Mrs O'Keeffe cross-examined Mr Harrison about the various offers of settlement that were made. Mr Harrison began by saying that he had made a note of the various offers, however as events transpired, from his records, he was not able to identify with accuracy on which day the various offers were made. Offers were made by the defendant of $50,000, $120,000, and eventually $150,000. Apparently from Mrs O'Keeffe's side, she had initially sought $350,000, then $200,000, then $180,000. Mr Harrison was adamant that on no occasion did he put any offer without the express instructions of Mrs O'Keeffe. He agreed that it was likely that the $150,000 offer put by the defendant was made on Thursday 22 April.

107 Mr Harrison was asked by Mrs O'Keeffe about whether Mr Walsh had made the statement that the judge was bad and very harsh. Mr Harrison said that his recollection is that the judge was discussed on Wednesday and there was a reference to the fact that the judge was reputed to be a black letter lawyer and therefore would apply the law, and he said that issue may have been revisited on Friday in the context of discussion about discharging the jury and the discussion about the risk faced because of Koehler.

108 Mrs O'Keeffe put to Mr Harrison that during the discussion on the morning of Friday 23 April when the offer of $150,000 was being discussed, that there was a comment regarding the Victorian WorkCover Authority being annoyed or angry because of the concerns Mrs O'Keeffe raised. Mr Harrison did not recall that, although he concedes a statement may have been made that the VWA did not like what it colloquially called "psych claims".[62]

109 Mrs O'Keeffe put to Mr Harrison that she was crying and visibly upset when it was explained to her that the sum of $150,000 would be full payment, that Mrs O'Keeffe would owe nothing and she would receive no compensation.[63] Mr Harrison agreed that she was advised that if she accepted the $150,000 all in, there would be nothing for Mrs O'Keeffe. He also said that she was advised, and that was recorded in the written authority, that she would not have to pay any more money for legal fees. He says that he did not recall that she was crying prior to accepting the offer. He said he recalled that after she had given instructions to accept the offer, he conveyed that information to Mr Jens, and when he came back, she was no longer in the ante room. He said that he recalls her being in an area where the toilets were with Ms Toop and he noticed that she had been crying. He said that he was a little shocked about this, but says that when she gave instructions to him to settle, he did not notice she was crying and she certainly had not been crying up to that point.[64]

110 Mr Harrison said that he recalled Mrs O'Keeffe saying at one stage, "Well, I've got no choice". Mr Harrison said, "Now, just a minute. This is your decision and you do have a choice", and he said they went through it again. Mr Harrison said she then said, "No, I do instruct you to accept the offer". Mr Harrison said he thinks he may have said something to the effect of, "Look, I don't want you to sue me".[65]

111 Mrs O'Keeffe put to Mr Harrison that during the discussions on the Friday, Mr Walsh was on her left side, standing, and Mr Harrison was standing directly in front of her. Mr Harrison disagreed with that. He said that that may have occurred on Wednesday or Thursday, but on the Friday they were all seated.[66]

112 It was put to Mr Harrison that when the authority was being written out, that he stated to Mrs O'Keeffe that she had had a win, and that this was the best they could do. Mr Harrison agreed that he did say something to that effect. He said that he had said something along the lines of, "At least you've got the comfort that even though you're not going to see any money from it, they have had to pay $150,000, and if you go on they don't even have to do that, so you've extracted something".[67]

113 Mrs O'Keeffe put to Mr Harrison that she had asked for the case to be run for one more day because she had a very important witness waiting who would win the case for her. Mr Harrison agreed that she had requested that, but he said he put to her that that is what she wanted to do on Wednesday and the position had only worsened from that point. He agreed that the witness was a potentially helpful witness, but he said that he expressed the view to her that it was over and she was not going to be able to turn the matter around. He said that the potentially helpful witness was not going to be called next; rather, Mr Jens was going to be given leave to continue his cross-examination about the conference and the whistleblowers organisation. He agreed that Mrs O'Keeffe may have said something about having her cheque book in her handbag. Mr Harrison said that he said, "Look, Lorrie, it's over. It's just not retrievable", or something along those lines.[68]

114 Mr Harrison did agree that there was discussion about putting the equity in the family home at risk. Also, Mr Harrison said that Mrs O'Keeffe's husband was not supportive of the matter continuing. He said the claim was doomed and it was prudent to get out of it on the best terms possible.[69] Mr Harrison agreed that such a conversation took place either on the Wednesday or the Thursday, or possibly both and again on the Friday.

115 Mr Harrison denied that Mrs O'Keeffe was crying when she signed the authority. He said that he would not have proceeded had she been visibly crying.[70] He did agree that she had been crying afterwards, that is, after he had gone and seen Mr Jens and accepted the offer, but he insisted that she had not been crying prior to signing the authority.

116 Mrs O'Keeffe said to Mr Harrison that she had never read the document and when Mr Harrison suggested Mr Fewster read it to her, she denied that. She said that she felt under a lot of pressure and felt under duress. She said she was starting to feel guilty because counsel were talking about how they were all taking a loss. She put it to Mr Harrison that she did say, "I don't want to sign this" and that Mr Harrison said sternly to her, "Mrs O'Keeffe, will you please instruct me to tell them the offer is accepted". Mr Harrison said he did not see himself as a stern person.[71] He said that he certainly asked her for instructions. He said that he was seated and Mrs O'Keeffe was seated. He said that the matter was discussed at considerable length backwards and forwards and chewed all over, but he was satisfied that Mrs O'Keeffe gave her instructions to settle and that she was accepting the advice that was being given to her. Mr Harrison expressly said that he did not recall Mrs O'Keeffe saying, "I don't want to sign this". He said that once they got her instructions, the authority was then written out and he recalls that it may have been read to Mrs O'Keeffe or that she read it over. He says that she then signed it and that he then went out and told Mr Jens.

117 I asked Mr Harrison about the sequence of events. He said that they received Mrs O'Keeffe's instructions to settle, the authority was then prepared and either she read it or it was read out to her; they then went out and saw Mr Jens and told him his offer had been accepted. When Mr Harrison returned, he noticed that Mrs O'Keeffe had been crying. He confirmed, in questioning from me, that he did not notice Mrs O'Keeffe crying until after he returned from accepting Mr Jens' offer. Mr Harrison said that he did not notice her crying and that if he had, he would not have proceeded.[72]

118 Mr Jens cross-examined Mr Harrison to confirm that the defendant made it clear that the offer of $150,000 inclusive of costs was the final figure they would offer, that in fact Mr Harrison asked that the offer be varied to include the vacating of the order for costs made in the County Court and that the offer was so varied and that the next thing that happened so far as Mr Jens was concerned was that Mr Harrison accepted that offer.

119 Mrs O'Keeffe sought leave to call Mr O'Keeffe, which I granted. Mr O'Keeffe is a tax agent and tax consultant and married to Mrs O'Keeffe. He gave evidence that he was present during conversations about settlement on Thursday 22 April. He was asked whether he had any recollection of the offer of $150,000 being made and he said that he had none whatsoever. Under cross-examination, it was put by Ms Toop to Mr O'Keeffe that Mrs O'Keeffe gave instructions at the conference to settle for $180,000 all inclusive of costs and disbursements. He denied that. He said the only instruction he recalled was that she wanted to proceed.

120 Under cross-examination by Mr Jens, Mr O'Keeffe confirmed that he wanted the case settled, but he had no figure in mind.

121 Mrs O'Keeffe indicated that she wanted to call a social worker who helped her reconstruct her recollection of the events on Friday. As I understood Mrs O'Keeffe's request, she wanted the social worker to explain how she had enabled Mrs O'Keeffe to recall what took place on the morning of Friday 23 April. I refused to allow her to lead that evidence, on the basis that it would be hearsay and inadmissible. Mrs O'Keeffe also said that Mr Kaplan, who had been treating her, was going to fax through some correspondence, but it was not tendered.

122 Mrs O'Keeffe's application of 29 April 2010 is for the withdrawal of the settlement signed by her on Friday 23 April 2010 between the parties. She also applies to have the proceeding continue before a judge alone.

123 In substance, Mrs O'Keeffe seeks an order setting aside the orders made by consent that her claim be dismissed. The grounds she relies on include an allegation that she agreed to settle the claim under pressure from her counsel and solicitors and that she did not have the opportunity to clearly think through any other possible options. She says that she felt threatened and intimidated by the settlement process and was immensely unhappy with the denial of a full and fair hearing of her case.

124 Mrs O'Keeffe relies on her affidavit in support of her application. In addition Mrs O'Keeffe raised several issues in her cross examination of Ms Toop, Mr Fewster, Mr Walsh, Mr Harrison S.C. and Mr Jens.

125 I had previously encouraged Mrs O'Keeffe to obtain legal representation if she could. Unfortunately, Mrs O'Keeffe was not represented. Accordingly, the issues in dispute were never clearly defined. Doing the best that I can in those circumstances, I propose to set out what I understood Mrs O'Keeffe was seeking to establish in support of her application and give my findings on those issues based on the evidence that I have canvassed above. In doing so, I will also give my findings on the circumstances surrounding the settlement negotiations.

126 Mrs O'Keeffe's case commenced before a jury of six on Wednesday 14 April. After the matter was opened Mrs O'Keeffe gave evidence in chief that went through to Monday 19 April 2010 when Mr Jens commenced his cross examination. On Thursday 22 April 2010 during Mr Jens' cross examination time was given to the parties to hold discussions. The jury was not brought in until 11.02am when Mr Jens resumed his cross examination. At the end of Thursday 22 April 2010, Mr Jens indicated that he had concluded his cross examination.

127 On Friday morning, the parties sought time for discussion. The court was informed that Mr Jens would seek to continue his cross examination. The matter was adjourned to noon to allow discussions to continue. Shortly before noon, the court reconvened when the court was informed the matter had settled. The jury was discharged without verdict. Orders by consent were made.

128 Settlement negotiations took place during the hearing. There is a dispute as to what was offered and when. I find, however, that on Thursday 22 April 2010, the defendant offered the plaintiff $150,000 all in inclusive of costs to settle the matter. That offer was rejected. During Mr Jens' cross examination that afternoon, after Mrs O'Keeffe said that she would not make a claim against the Red Cross, a juror said, "Yeah, sure". I did not hear the comment, but the evidence of Mr Walsh who did hear it made it clear that the comment indicated scepticism or even disbelief in Mrs O'Keeffe's evidence on whether she would make a claim. That issue was of some importance as Mr Jens had put to Mrs O'Keeffe that she made many complaints about her treatment by the Wyndham City Council and her previous employer, the Barwon Shire Council. These had included complaints to the DPP, the Ombudsman, her union, the relevant minister, VCAT, the Federal Court and others. Although Mr Jens had not made any submissions on this evidence, it was clear that he would have suggested that Mrs O'Keeffe was a chronic complainer which tended to undermine the complaint that she raised in her case. He would have presumably used it to challenge her credit as well.

129 Mr Walsh had concerns about the plaintiff's case. He considered that her case was going badly. The juror's comment reinforced his concerns. He telephoned Mr Jens on Thursday after court to ascertain if the defendant's offer of $150,000 was still available. He was told that it was.

130 The next morning, Mrs O'Keeffe conferred with her two counsel, Mr Harrison and Mr Walsh and her two solicitors, Ms Toop and Mr Fewster. The conference took place in a room in the Supreme Court. Although Mrs O'Keeffe's daughter accompanied her to court, she did not sit in on the conference, although Ms Toop asked Mrs O'Keeffe if she would wish her to be present.

131 Mrs O'Keeffe was informed about the juror's comment. The possibility of making an application to discharge the jury was discussed. I am not satisfied that Mrs O'Keeffe instructed her counsel to apply for the jury to be discharged. Counsel expressed the view that Mrs O'Keeffe's case was doomed. They expressed the view that whether the case proceeded before the jury or the judge alone, the plaintiff was faced with the problem that she had not established that her employer ought to have been aware of her psychological susceptibility. She was advised that the High Court decision in Koehler's case presented insurmountable difficulties for her.

132 I find that counsel approached Mr Jens to vary his offer to include a term that the defendant would vacate a costs order made against Mrs O'Keeffe in the County Court which was estimated to be about $10,000. Mr Jens amended his offer to include that dispensation. While counsel were out of the room speaking to Mr Jens, Ms Toop noticed that Mrs O'Keeffe had become teary. Mrs O'Keeffe then went outside to have a cigarette. Ms Toop says that when counsel returned they confirmed that the offer of $150,000 was still available with the vacation of the County Court costs order against Mrs O'Keeffe. At that stage, Mrs O'Keeffe had composed herself and was no longer teary.

133 At this stage, Mr Harrison, Mr Walsh and Ms Toop all recommended to Mrs O'Keeffe that she accept the offer. Mrs O'Keeffe gave instructions that the offer should be accepted. Ms Toop then wrote out by hand the authority by which Mrs O'Keeffe authorised her solicitors to settle her claim.[73] The authority was either read to or read by Mrs O'Keeffe and she then signed it. During this process, Mrs O'Keeffe was not visibly crying. Whilst these discussions were taking place, Mr Harrison and Mr Walsh were not standing but were sitting down at a table. Mr Harrison did not raise his voice or demand that Mrs O'Keeffe give instructions that the defendant's offer be accepted. Mr Harrison and Mr Walsh left the room and informed Mr Jens that the defendant's offer had been accepted. When Mr Harrison and Mr Walsh returned to the room, Mr Harrison noticed that Mrs O'Keeffe had been crying. At this stage they all returned to court. Ms Toop offered Mrs O'Keeffe her mirror so she cold clean up before returning to court. When they got to court, Mrs O'Keeffe sat behind Mr Harrison. Mr Harrison informed the court that the matter was settled. There was no indication by Mrs O'Keeffe that indicated to any observer that she disagreed with her counsel's submissions to the court.

134 Mrs O'Keeffe says that she felt threatened and intimidated. I find that her lawyers did not threaten or intimidate her. If she did feel threatened or intimidated, she did not communicate that to her lawyers. I find that she was fully informed that the settlement would mean that she would receive no moneys but that she would not be exposed to any claims by the defendant for costs and she would not be obliged to pay any moneys to her own lawyers. I accept that her counsel did discuss that they would be discounting their fees.

135 Mrs O'Keeffe says that she was anxious. I accept that she may have been. However, Mrs O'Keeffe struck me as a person who is well used to protecting her own interests. She has an office in her home from which she has conducted considerable correspondence in support of her complaints to a wide range of bodies as discussed above. Mrs O'Keeffe appeared to be a strong, independent and competent woman more than capable of handling her own affairs. In the witness box, she was subjected to very tough, but fair and proper, cross examination by Mr Jens. Mrs O'Keeffe displayed a strong character in dealing with this cross examination.

136 I readily accept that to her lawyers she presented as an intelligent and independent woman quite capable of looking after her own affairs. I am not satisfied that her lawyers had any reason to believe that she felt under pressure, at a disadvantage, threatened or intimidated. On the contrary, I am satisfied after hearing their extensive cross examination, that they did not.

137 On the other hand, I accept that Mrs O'Keeffe is very disappointed in the results of her case. I am sure that she genuinely felt that she had a good claim. It is only natural that she regrets the way matters have progressed. I accept that she put many years of effort into this case and to have it settle on the basis that it did must have been a severe blow to her. On the other hand, after hearing the evidence that has been elicited to date, I am not surprised that the case ended as it did. I, of course, had a completely open mind at that stage.

138 Mrs O'Keeffe also asked questions which suggested another criticism of counsel and her lawyers. She put to both counsel that they had other briefs to attend to and that their actions in recommending her to settle may have been motivated by a desire to rid themselves of her case so that they could get on with their other briefs. I am not satisfied that any such matter played any role in the advice they gave her.

139 It is not necessary for me to comment on any other matters she raised.

140 If Mrs O'Keeffe was subjected to intimidation and pressure (which I expressly reject) there is no suggestion by Mrs O'Keeffe that Mr Jens or his instructing solicitors had any inkling that she was under such pressure or intimidation. Mr Jens put an offer which was accepted by Mr Harrison after conferring with his client. Mr Jens had every reason to believe that Mr Harrison had express authority to compromise the claim, which he did.

141 Her cross examination of Mr Jens did raise two complaints. First she suggested that his questioning was unfair as it tended to show her in a bad light to the jury. I carefully observed Mr Jen's cross examination. In my view his questioning was proper. He sought to show that there was no basis for the Council knowing that she had any psychological susceptibilities; that her complaints of bullying were baseless; that she had a history of complaining in that she had made similar complaints against her previous employer, Barwon Shire Council; and that her complaints arose primarily because her own staff had indicated that they did not wish to work for her. I do not think it is appropriate to make any observations about whether these points were well founded. In each case however Mr Jens appeared to have reasonable grounds for taking the line of cross examination that he did.

142 Secondly, Mrs O'Keeffe suggested that Mr Jens was deliberately delaying the hearing. I find that there was no ground for that suggestion.

143 I was referred to two cases. In Bailey v Marinoff[74] the High Court of Australia held that there is no inherent power in a court to deal further with an appeal which has already been dismissed by formal order, in conformity with an order pronounced, where the order was entered before the application to vary it was made. The other case I was referred to is Harris v Caladine[75] where the High Court of Australia dealt with the power of a Family Court to review a consent order made by a Registrar. Brennan J said that a court will only interfere with such an order on the same grounds as it would with any other contract, citing amongst other authorities, the High Court authority of Harvey v Phillips.[76] He said that once an order is perfected it can only be set aside on a fresh action or on appeal.

144 In Harvey v Phillips[77], cited by Brennan J, the court, comprising Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ, considered the circumstances where a compromise could be set aside. In that case the plaintiff bought an action for damages against executors of a surgeon in respect of injuries she attributed to an operation. The defendants offered ₤4,000 to settle the claim. The plaintiff's counsel advised her to settle but the plaintiff rejected his advice. The trial judge saw the parties in chambers. He was told of the offer and advised the plaintiff to seriously consider it. She, nevertheless persisted in her refusal to accept the offer. Senior counsel at one stage left his brief with his solicitor and returned to chambers. Ultimately, after extreme pressure by friends, her solicitor and junior counsel she agreed to accept the sum offered by the defendant. The High Court accepted that she was overborne into agreeing under extreme pressure. They said:

From the foregoing facts it seems clear enough that in spite of her determination not to settle the action she was temporarily overborne by the extreme pressure exerted upon her by her counsel supported by her solicitor and perhaps others and was induced, when she understood that her counsel had refused to conduct her case and when Mr. Darby spoke gently to her, to express what proved a short-lived consent to accept £4,000 by way of compromise. There can be little doubt that the consent which she so expressed was to the knowledge of those present in opposition to her fixed desire and was given with a reluctance only too evident. But so far as the counsel and solicitors of the defendants knew, the plaintiff's counsel had his client's considered and definitive authority to accept the settlement. They were, of course, quite aware that for a long time the plaintiff had refused her consent to compromise the action and that the plaintiff's counsel was endeavouring to obtain her authority and was experiencing difficulty in doing so.[78]

145 The settlement was announced in court and the judge authorized entry of judgment in accordance with the terms of settlement drawn up. Judgment had not in fact been signed or entered. The plaintiff applied to have the judgment set aside.

146 The High Court held that the case was not one where the defendant relied on the implied or apparent authority of counsel to settle. The court found that all parties understood that acceptance of the offer depended on the plaintiff's express authority. The High Court said that if the judgment had been signed then it may be doubted whether it was open to the plaintiff to attack it by making an application to the Full Court in the action to set aside the judgment and the compromise.[79]

147 As to the circumstances where a settlement agreement could be set aside, the High Court said:

But in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void, or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.[80]

148 The facts of this case demonstrate the extreme pressure the plaintiff was placed under to settle. Nevertheless, the High Court said that the matter had to be considered from the defendant's point of view as well as the plaintiff's. The Court said:

The difficulty in the present case lies in the very unwilling and ephemeral character of the consent which the plaintiff was led to give. But it is enough if she expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain. In the circumstances one might have expected that she would be asked to sign a written authority. But that was not done. However the finding of the Supreme Court, supported as it is by evidence, suffices to establish that she definitely did give her authority, however reluctant it may have been. It is impossible to regard the authority she thus gave as insufficient to support the compromise. The issue is one which must be considered from the defendants' point of view as well as from hers. When the defendants accepted the compromise requiring them to pay £4,000 they believed that thereby they were putting an end to the litigation. They acted upon the statement made by her counsel that the compromise was made with the authority of the plaintiff. Once it appears that the plaintiff did in fact give an assent which had not been withdrawn up to the moment when the terms of settlement were signed, it can be nothing to the point to say afterwards to the defendants that it was the result of her real desires or her judgment being overborne by her advisers, whatever may have been the degree of moral pressure that she felt.[81]

149 One can readily see the similarity between this case and that of Mrs O'Keeffe's if Mrs O'Keeffe's assertions are accepted. Mrs O'Keeffe had signed an authority to settle on the terms agreed. Thus in the words of the High Court, this was a compromise which was "made within the actual as well as apparent authority of counsel". Even on her own version of events, there does not appear to be any basis to render the contract of settlement void or voidable or to entitle Mrs O'Keeffe to equitable relief as against the defendant.

150 There is no suggestion that the defendant procured the compromise agreement by fraud, duress, mistake, illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, undue influence, abuse of confidence or the like.[82] In those circumstances, there appears to be no basis for setting aside the consent order even if Mrs O'Keeffe's allegations of pressure, duress and intimidation by her own lawyers were made out, which they have not been.

151 Mr Jens contended that the settlement is binding as between the defendant and the plaintiff. He is undoubtedly right. There is no suggestion that Mr Harrison and Mr Walsh did not have actual authority to compromise the plaintiff's claim and in those circumstances the compromise is binding. As indicated above, she signed an express authority for them to settle as they did. In Donellan v Watson[83] Handley JA of the New South Wales Court of Appeal set out the well recognised general principles applicable to settlements entered into by lawyers on their client's behalf:

A solicitor retained to conduct litigation ordinarily has both implied and

ostensible authority to bind his client to a compromise of those proceedings.

Any instruction from the client which restricts the solicitor's authority to compromise the proceedings will only affect the other party who is on notice of that restriction. The authority of counsel briefed in the cause to bind his client to a compromise of the litigation is governed by the same principles [citations omitted].[84]

152 These are well understood principles. Mr Jens referred me to Order 21.07 and Order 36.07 and the limitations on the Court's power to set aside an order once made. In this case Mrs O'Keeffe's affidavit in support of her application was filed in the Supreme Court on 28 April 2010. The order although pronounced on 23 April 2010 was not signed by me until 28 April 2010.

153 It is unnecessary for me to decide whether or not the signed order could be set aside under the slip rule as even if the order had not been signed I am not satisfied that Mrs O'Keeffe has established any grounds that would entitle her to set aside the compromise agreement. If the order could not be set aside, as established in Harvey v Phillips,[85] discussed above, it appears that the only means of setting aside the settlement agreement would be by fresh proceedings and then relying on the limited legal and equitable principles that permit a contract to be avoided or otherwise set aside. As mentioned above, Mrs O'Keeffe has not made out any of these limited grounds.

154 The line of cases that deal with circumstances where counsel does not in fact have authority are not relevant.[86] As Mr Harrison and Mr Walsh had express written authority, the compromise is binding as any ordinary contract is.[87] In any event, where an action is settled in court in the presence of counsel's client, the consent of the client will be inferred.[88] Mrs O'Keeffe was sitting behind Mr Harrison when he announced the consent orders and that the matter had been settled.

155 For these reasons, I dismiss Mrs O'Keeffe's application to set aside the orders announced and to continue the hearing of the proceeding.

156 The settlement sum of $150,000 has been paid into court. The former solicitors for Mrs O'Keeffe seek an order that the moneys be paid out to them. They rely on a solicitor's non possessory lien. The nature of that lien was described by Weinberg J in Color Point Pty Ltd v Markby's Communication Group Pty Ltd[89] where he said:

Summary of general principles

The authorities seem to recognise that there are, in effect, two forms of solicitors' "lien" over costs.

(a) The first is the common law "general" or "possessory" lien which enables a solicitor to retain all papers or other chattels of the client which have come into his possession as his client's solicitor until all his costs and charges as solicitor are paid. This right depends upon an implied agreement. It is merely passive and possessory: that is to say the solicitor has no right of actively enforcing his demand. He may merely withhold possession of the documents or other property of his client until he is paid his legal costs.

(b) The second is what is often described, though inaccurately, as a "non-possessory lien" over any property, other than real property, recovered or preserved, or any judgment obtained, for the client by the solicitor's exertions in the litigation. This "lien" is equitable, and gives to the solicitor a charge upon the property in question. It does not depend upon the funds being in the possession of the solicitor.

While it has been recognised that the term "lien" may be inappropriate to describe the nature of the solicitor's equitable interest in the fruits of the litigation, the terminology is less important than the nature of the particular interest, and its incidents. That interest arises when a solicitor undertakes professional services on behalf of a client in the course of litigation. It confers upon the solicitor an equitable interest in the fruits of that litigation, provided that those fruits are gained, at least in part, as a result of the solicitor's exertions on behalf of the client. It is a "particular" lien, rather than a "general" lien because it extends only to the costs of the proceedings in which the personal property is recovered, and not to all costs incurred on behalf of a client by the solicitor.

Though in England there is some suggestion that the lien arises at common law, the position in Australia is that it is equitable in nature. It attaches to property which has been obtained for the client by the solicitor, either pursuant to a judgment, or a compromise of judicial proceedings which have been instituted.

Though it has been said that the "so-called" lien is really only a right to ask for the intervention of the court to protect the solicitor when he finds that there is a probability of the client depriving him of his costs, and though it is correct to say that the solicitor can enforce the lien only by taking court action to prevent the property recovered from being paid or transferred to the client, the "lien" attaches by the recovery of the property. It is not dependent for its existence upon the judgment of the court.

It should be noted that the "equitable non-possessory lien" is supplemented in some jurisdictions by a statutory lien in favour of solicitors over any property, real or personal, recovered or preserved through the instrumentality of those solicitors. In England the relevant provision is found in the Solicitors Act 1974, s73. This provision stems from the Solicitors Act 1860. In Victoria, the Legal Profession Practice Act 1958 s104(1) was to the same effect. That section gave to the solicitor priority over all persons claiming an interest in the property, so long as it remained under the control of the Court. The protection conferred upon the solicitor by these provisions is greater than that provided by the equitable lien. The Legal Practice Act 1996 (Vic) (which came into operation on 1 January 1997) does not replicate this statutory lien. It does not, however, purport to abrogate the equitable lien which has existed independently, and alongside the statutory lien, for over a century.

The equitable charge which arises pursuant to the solicitor's non-possessory lien takes priority over the interest of the client's trustee in bankruptcy. Similarly, that charge takes priority over the rights of an assignee of the assets recovered, or some part of them [citations omitted].

157 The application is made by summons dated 26 May 2010 and is supported by Mr Fewster's affidavit of the same date. On 26 May 2010, Davies J ordered that the settlement sum of $150,000 be paid into court to be retained until further order. As indicated above the matter was referred to me by Hargrave J.

158 Mr Fewster's affidavit says as follows. He deposes that, subject to the supervision of his principal, Ms Patricia Toop, he had the day-to-day conduct of the plaintiff's file and the proceeding. He exhibits a disclosure statement dated 23 June 2009 provided by his firm to Mrs O'Keeffe. He says that although it is not signed by her, he is informed by Ms Toop and believes that the letter was sent to Mrs O'Keeffe, who acknowledged receipt, discussed its contents and agreed with the same in a conference with Ms Toop at their offices shortly after it was received by Mrs O'Keeffe. He says that he recalls seeing this letter to Mrs O'Keeffe, together with a costs agreement of July 2009 as a result of discussions Mrs O'Keeffe had with Gary Clark, partner at the Williamstown office.

159 He deposes that the trial proceedings commenced before me and a jury of six on 14 April 2010. He says Mr Harrison SC and Mr Walsh of counsel were retained by his firm to appear on behalf of Mrs O'Keeffe. Mr Jens and Ms Cefai of counsel appeared on behalf of the defendant retained by Mr Clayton Prentiss, solicitor of Messrs Thompson Playford Cutler.

160 He says that on 23 April 2010, he received Mrs O'Keeffe's instructions to accept an offer made by the defendant and to settle the proceeding on her behalf and exhibits the authority signed by Mrs O'Keeffe authorising the settlement.

161 He says that as a result, on 23 April 2010, I made orders which, subject to any application by his firm for costs pursuant to s 134AB(30) of the Accident Compensation Act, discharged the jury without verdict and dismissed the proceeding.

162 He says he was advised by Ms Toop and believes that on 28 April 2010, she received a message left with their reception at 5.16pm from Mrs O'Keeffe advising she was terminating the services of his firm.

163 On 30 April 2010, he says the proceeding was re-listed before me for an application by their firm for a costs order pursuant to s 134AB(30) of the Accident Compensation Act. He says the application was not finalised. He says Mrs O'Keeffe appeared and advised me that she no longer retained his firm. He says she served two affidavits, one dated 25 April 2010 and sworn 28 April 2010, and another sworn 29 April 2010, and an application for orders document sworn 29 April 2010 on his counsel. He exhibits those documents. He says the matter was adjourned for Mrs O'Keeffe to obtain legal advice.

164 He says that by letter dated 19 May 2010, his firm wrote to Mrs O'Keeffe and advised her of their proposed course of action in relation to the settlement process of $150,000 payable by the defendant, and he exhibits that letter. He said it was served on Mrs O'Keeffe by ordinary mail. He says he did not receive any acknowledgment by Mrs O'Keeffe to that letter. He says that on 25 May 2010, he received a letter from Clayton Prentiss from the defendant's solicitors advising that as his firm no longer acted on behalf of Mrs O'Keeffe, that the firm intended to request the defendant to pay the settlement sum to Mrs O'Keeffe directly. He exhibits that letter.

165 The solicitors also rely on the affidavit of Ms Toop sworn 30 April 2010. She deposes that at all material times Mrs O'Keeffe has been aware of the existing costs agreement and that she would be charged solicitor/client costs. Furthermore, in the course of preparing the serious injury and common law proceedings, disbursements have been incurred by Clark Toop & Taylor including court fees, mediation fees, fees for medical reports and expert witness reports and counsels' fees. She says the plaintiff has not paid costs in relation to any of these matters Clark Toop & Taylor have taken instructions on and she was aware of the costs and disbursements incurred in running her statutory benefits application, serious injury application and common law proceedings. She deposes that currently the firm has incurred disbursements totalling $153,480.19, which sum does not include the costs of transcript and six days of court fees which she conservatively estimates at $20,000.

166 Mrs O'Keeffe relies on two affidavits in opposition to the application. The first dated 14 May 2010, is in response to the affidavit of Ms Toop and confirms that she has not signed a costs agreement with Clark Toop & Taylor and details the steps she took to discuss the Conditional Fee Agreement with the firm. Her second affidavit, dated 31 May 2010 is in response to the affidavit of Travis Fewster of 27 May 2010. It raises issues she has with the correspondence Mr Fewster exhibited to his affidavit.

167 The matters that she raises goes to questions that might be dealt with at taxation or in other proceedings that deal with the terms of her retainer with Clark Toop & Taylor. In my view, it is unnecessary for me to resolve the matters raised in these proceedings. What is important is that Mrs O'Keeffe does not dispute that Clark, Toop & Taylor were her solicitors and the amount of $150,000 was accrued through the litigation that they conducted on her behalf and in which they have incurred substantial disbursements and expended considerable time and effort.

168 As I understand the principle of the solicitors' non possessory lien, it is not necessary that the solicitors must establish that their costs will equal or exceed the moneys paid into court for the lien to apply. In any event, the evidence of the disbursements incurred exceeds $150,000.

169 I find that the solicitors are entitled to hold the moneys as security for their costs, fees and disbursements incurred in gaining the sum paid by the defendant to which they are otherwise entitled. I will so order.

170 I will hear the parties on costs and on the precise orders sought.

[73] Exhibit TF 2 to the affidavit of Travis Fewster sworn 26 May 2010.

[74] [1971] HCA 49; (1971) 125 CLR 529.

[75] [1991] HCA 9; (1991) 172 CLR 84.

[76] [1956] HCA 27; (1956) 95 CLR 235 at 243-244.

[77] [1956] HCA 27; (1956) 95 CLR 235 per Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ; see also H&G Group Pty Ltd v Pilot Developments Pty Ltd [2002] NSWSC 257 per Austin J especially at [21]-[45].

[83] (1990) 21 NSWLR 335.

[85] [1956] HCA 27; (1956) 95 CLR 235 at 243-244.

[86] See for example Neale v Gordon Lennox [1902] AC 465.

[87] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243.

[88] Chambers v Mason [1858] EngR 17; (1858) 5 CBNS 59.

[89] [1998] FCA 1516.