I have been thinking,(not often I do):

But if you say,:

If I invest my hard earned money in some one else's Name, to safe on tax, or whatever, it becomes his/her money, plus "next of Kin " is not applicable" either. ?

If this is the Law, why are we wasting our precious time? Do you agree?

Perhaps, we should employ a QC to get a definite ruling.

It's only a suggestion, Bill don't take it personal!

1. The substance of Mr Pless Snr's grievances became clearer in his next email of 25 November 2015 (after the Second Court Hearing):[66]

I am not a "bad [loser]", Jim and enjoy paying your fees. (Can't take it with me)!

However, I am not satisfied with the 2 hearings & I try to explain: in my broken English.:

Your new Solicitor John [Ferguson], cleverly made me sign a sworn affidavit about the [Toorak Home] and explained, I would be in contempt of Court

My question is; Why was that document not submitted to the Judge ? Or at least attempted to submit.

Wouldn't that have eliminated the second hearing ? I think so because that's what it was supposed to be all about.

There were 3 Solicitors there including a QC., against a little fellow Black.

The second hearing was nothing but exchanging views (a "slanging match") between the judge and QC.

Why didn't the QC ask permission to consult with his client for say 5 minutes, which is common practice in Court. ?

I could have offered [another] sworn statement on the spot there and [then].

And the Judge, who seems a fair Judge, would have appreciated my presence.

In view of this, the Judge would probably have given an alternative Judgement, if any.

Certainly, not the "FROZEN ORDER", giving satisfaction to the other side.

Do you agree with me Jim ? I am just a simple observer ! You may think differently.?

1. It can readily be inferred (and the parties accepted) that Mr Pless Snr's reference in that email to a 'sworn affidavit' was actually a reference to the Proposed Undertaking that he had signed during the 13 October Meeting.
2. Further exchanges ensued between Mr Pless Snr and Mr Keogh and his staff, but none of these appeared to shake Mr Pless Snr's belief that the Proposed Undertaking ought to have been presented to Riordan J.
3. Of course, one difficulty with Mr Pless Snr passing before the hearing of his application is that he could not be called to give evidence to explain his concerns at the time, or address (and be cross-examined about) how he might have responded if he had received different advice from Keogh & Co.

1. Mr Pless' first affidavit provides background as to his father and the Supreme Court proceedings between them which is largely unchallenged and has been outlined above.
2. In his second affidavit, Mr Pless goes on to recount discussions he says he had with Mr Pless Snr 'regularly and in consistent terms' from the time they reconciled (in 2016) to his death, that:[67]

Roland said to me that Mr Ferguson said that once the undertaking was handed to the judge, "that would be the end of it" (those were the words that Roland used).

1. In his second affidavit, Mr Pless also suggests that, if the Proposed Undertaking had been offered to him 'by way of compromise of [his] application, [he] would have readily accepted it' on the basis that 'in effect, it would have given [him] what [he] had applied for in relation to the freezing orders without the cost of an additional day in court'.

1. As already noted (see [38]), prior to joining Keogh & Co, Mr Ferguson worked in debt recovery at the Australian Taxation Office. As a result, he was experienced in dealing with applications for Freezing Orders and the giving of undertakings to compromise such applications. In cross-examination, Mr Ferguson indicated that, in his experience, the Commissioner of Taxation was successful 'one hundred percent of the time' in such applications, in the sense that either a party would provide an undertaking in a form acceptable to the Commissioner or a Court would grant the Freezing Order sought.[68]
2. Mr Ferguson's evidence was that, as a result of his experience, he proposed and then drafted the Proposed Undertaking signed by Mr Pless Snr, recognising the style of drafting as his own. He said that a copy had been sent to Mr Clarke to settle, but he had not received any response and otherwise 'had been left to [his] own devices'.[69]
3. Despite it having been sent to Mr Clarke on 13 October 2015 with an electronic signature bearing his name, Mr Ferguson denied drafting an earlier form of undertaking ('First Draft Undertaking'), which provided:[70]

I, Roland Edward Press (sic), for myself and on behalf of P C R P/L and Empee N'ees P/L hereby undertake not to dispose of any assets owned by any of us until further order of the Court.

1. In that regard, he suggested that it looked like it was sent by Mr Keogh, which was consistent with the way it had been written.[71]
2. The gist of Mr Ferguson's evidence is that he explained the thinking behind, and the intended use of, the Proposed Undertaking to Mr Pless Snr at the 13 October Meeting. He says he explained that:
   • the Proposed Undertaking was to be held in reserve to be used, subject to confirming instructions with Mr Pless Snr, in the event the First Court Hearing was not going well and there was a risk of the Court making a Freezing Order in the form sought by Mr Pless (i.e. over all of the Defendants' assets); and
   • as the Proposed Undertaking was limited to an undertaking not to dispose of the Toorak Home - which Mr Pless Snr had no intention of disposing - it would be preferable to a Court order, as Mr Pless Snr would be free to deal with his other assets as he sought fit.
3. In cross-examination, Mr Ferguson denied:
   • having sought or received instructions from Mr Pless Snr to offer the Proposed Undertaking to Mr Pless by way of compromise of the proceeding;[72] or
   • having told Mr Pless Snr that, if the Proposed Undertaking were 'handed over that would be the end of it'.[73]
4. Mr Ferguson says that he showed the Proposed Undertaking to Mr Clarke prior to the First Court Hearing and they had an exchange to the following effect:[74]

[MR FERGUSON]: I got Roland to execute this [the undertaking] just in case it gets to that point. I thought it might be worth it.

CLARKE SC: Thanks, I think we will be OK, we won't need it for now, keep it.

1. The Tribunal Book includes a report sent by Mr Ferguson to Mr Pless Snr by email on 14 October 2015, following the First Court Hearing, which states:[75]

In summary, Justice Riordan agreed there was no immediate risk that assets were being dissipated and refused your son's application for freezing orders at this stage. He did not seek or require you to give any undertakings.

However, Justice Riordan indicated that he believed there were serious issues to be tried. He expects you to provide evidence explaining how you and your wife managed your affairs (concerning funds transfers from the various bank accounts) and explaining the circumstances of the transfer of the Robertson St property to Pless Nominees.

The Judge focussed on the transfer of the 7 Robertson St property, and expressed concern it took place so soon after receiving letters of demand from your son's lawyers. It is the only major asset your son is aware of, and the transfer of it at that time was "strange" (in Justice Riordan's words).

However, Justice Riordan decided that you should be given the opportunity to explain the circumstances of the property transfer, and of the funds transfers generally before he makes any further orders.

1. In giving evidence, Mr Ferguson's view was that the First Court Hearing was a 'complete vindication of what Mr Roland Pless was doing at that stage' and that they had been 'entirely successful' in terms of their 'instructions ... to defend the application at that stage'.[76]
2. After providing his report as to the First Court Hearing, Mr Ferguson went on to work on the affidavit to be filed by Mr Pless Snr to address the matters raised by Riordan J. Mr Ferguson gave evidence that he did not respond to Mr Pless Snr's initial complaint on the basis that it merely represented Mr Pless Snr's 'musings' about 'what is going on with his life' and on the legal system.[77]
3. While Mr Ferguson says he had discussions with Mr Pless Snr about his grievances, he did not respond to emails which Mr Keogh had drafted, even where they were in error on the basis that Mr Keogh was 'the principal of the firm', Mr Keogh was 'entitled to say what he wants to say' and he (i.e. Mr Ferguson) had 'no place to take issue with it'.[78]

1. Mr Keogh gave evidence about the origins of the Proposed Undertaking that conflicted to some extent with the evidence of Mr Ferguson. In that regard, he said:
   • he prepared the First Draft Undertaking, which 'would have Mr Pless [Snr] agreeing not to dispose of any of his assets', 'in [his] ignorance of what was actually being proposed';[79]
   • it was Mr Clarke's idea to limit the undertaking to the Toorak Home;[80] and
   • the final form of the Proposed Undertaking was discussed between and/or settled by Mr Clarke.[81]
2. Mr Keogh also gave evidence that Mr Clarke advised him that it would be 'advantageous' to prepare an affidavit ('2015 Affidavit') 'in the event that [they] had to file [the Proposed Undertaking]'.[82] I gave leave for Keogh & Co to tender a further affidavit[83] exhibiting notes of Mr Keogh's discussions with Mr Clarke, despite this being after he had completed his evidence.[84]
3. The 2015 Affidavit, sworn by Mr Keogh on 13 October 2015, states:[85]

I am instructed by the first named defendant for himself and as sole director of the third party respondent that he undertakes that neither he nor the third party respondent which he controls will dispose of or encumber the [Toorak Home] before further order of the Court.

1. However, despite this, Mr Keogh said in cross-examination that 'at that point [he] wasn't instructed' and the affidavit was 'never intended to be filed unless the [Proposed Undertaking] was, in fact, volunteered'.[86]
2. The gist of Mr Keogh's evidence as to the 13 October Meeting was that he observed, but did not take an active role in, the discussions between Mr Ferguson and Mr Pless Snr as to the purpose of the Proposed Undertaking.
3. When Mr Pless Snr raised concerns, following the Second Court Hearing, as to the failure by Keogh & Co and/or counsel to have deployed the Proposed Undertaking that he had signed, Mr Keogh responded:[87]

Are you referring to the undertaking which would have had you volunteer to freeze your assets Roland?

If so, it was not filed for obvious reasons.

Because it would have led to orders being made to freeze all of your assets, not just [the Toorak Home], but also your Bank Accounts.

1. Mr Keogh now admits that, in preparing that response, he had been confused between the Proposed Undertaking and the First Draft Undertaking he prepared. Accordingly, he accepts that the responses he provided were incorrect.[89]

1. For completeness, neither of the counsel involved gave evidence before the Tribunal. In that regard, Mr McEvoy indicated that he was unable or unwilling to provide an affidavit for Keogh & Co,[90] while Mr Clarke indicated that he retained no memory of his involvement in the matter.[91]

Credibility of witnesses and admissibility of their evidence

1. Each party submits that the evidence of their own witnesses is credible and should be accepted, while that of the party is unreliable and should be ignored. Further, Keogh & Co contend that Mr Pless' evidence of matters that he discussed with Mr Pless Snr before his death is hearsay and should not be admitted (i.e. if the Tribunal applies Part 3.2 of the Evidence Act 2008 (Vic)) or should be given no weight (if the Tribunal does not adopt the rules of evidence).
2. I accept that there were some issues that go to the credibility of each witness, as follows:
   • Mr Pless: When recalled on day four of the hearing, Mr Pless admitted having made an error in his second affidavit as to when he had reconciled with his father: i.e. based on certain documents, he confirmed it was in April 2016 rather than March 2016.[92]

Also, I accept that - to the extent that Mr Pless purports to give evidence about what he would have done if Mr Pless Snr had offered the Proposed Undertaking by way of compromise of the Summons application - it is inherently self-serving evidence and should be treated with some caution.

Mr Pless credibility was also attacked, in cross-examination, on the basis that he was 'conflicted' (i.e. he brought the Supreme Court proceedings against his father, but now pursues this application on behalf of his father's estate) and stood to benefit from any success in this proceeding. At least to the latter extent, it appears to be misguided as he says he is not a beneficiary of his father's estate.[93]

• Mr Ferguson: Mr Ferguson was somewhat hostile in the (virtual) witness stand, often taking issue with the way in which he was asked questions in cross-examination and refusing to concede much, if anything.

It seems that he is aggrieved with having been caught up in this dispute (noting that he has since relocated to a different practice interstate) and having his professional integrity questioned. Indeed, at one point, Mr Ferguson was seeking leave to hear all of the evidence and make submissions (although attempting to do so without being joined as a party that may be liable to costs).[94]

• Mr Keogh: Mr Keogh was an even more difficult witness, e.g. suggesting Mr Lorbeer was asking 'smart alec questions' in relation to his cross-examination concerning the 2015 Affidavit.[95]

Mr Keogh also maintained that it was a 'complete denial of legal professional privilege' for him to produce his file to Mr Pless (as executor of his father's estate.[96] This was despite a ruling of the ethics committee of the Law Institute of Victoria that this should occur (i.e. on the basis that Mr Pless was the executor of his father's estate)[97] and a subsequent order of the Tribunal that it be produced.[98]

In addition, Mr Keogh admitted errors in the 2015 Affidavit (as to the holding of instructions from Mr Pless Snr), his communications with Mr Pless Snr (i.e. referring to the terms of the First Draft Undertaking rather Proposed Undertaking) and one of his affidavits in this proceeding.

1. However, in my view, none of these matters is a proper basis to reject the evidence of the witnesses (or any one of them) in their entirety (or to only accept admissions against interest); rather, in each case, it is appropriate to carefully assess the evidence of the witness having regard to the contemporaneous documentary material before the Tribunal.[99]
2. In respect of the hearsay point, it is trite to note that the Tribunal is not bound by the rules of evidence, except to the extent it chooses to adopt them.[100] While I do not consider that it is appropriate to adopt the rules of evidence generally, or to reject the admission of hearsay evidence (in particular), I do regard that evidence to be of significantly lesser weight than the inferences which can properly be drawn from statements made by Mr Pless Snr when he was alive, particularly those that were relatively contemporaneous with the events in question.

1. The Tribunal Book includes three invoices rendered by Keogh & Co to Mr Pless Snr for the relevant matter, being:
   • invoice #9019 for $24,766.27 issued on 19 October 2015, representing (GST-inclusive) fees of $8,250 and disbursements for Mr Clarke ($9,900), Mr McEvoy ($6,600) and other minor outgoings ($16.27);[101]
   • invoice #9071 for $16,302.34 issued on 16 November 2015, representing (GST-inclusive) fees of $16,225 and disbursements for minor outgoings ($77.34);[102] and
   • invoice #9078 for $91,189.75 issued on 27 November 2015, representing (GST-inclusive) fees of $10,631and disbursements for Mr Clarke ($20,790), Mr McEvoy ($59,400) and other minor outgoings ($368.75).[103]

(The narrations for the legal fees, as well as for the fees of counsel in relation to invoice #9078, are reproduced in the Annexure to these resons.)

1. While Mr Pless only claims for invoices #9071 and #9078, it is relevant to note that Keogh & Co's work the subject of invoice #9019 included, on 15 October 2015, writing to Mr Pless' solicitor to seek Mr Pless' consent to deferral of the date on which Mr Pless Snr's defence to the Supreme Court proceeding was required to be filed. The narrations on the invoice indicate that consent was denied.
2. The narrations to invoice #9071 suggest the fees were for work between 19 October and 13 November 2015 in preparing Mr Pless Snr's defence to the Supreme Court proceeding and the affidavit of Mr Pless Snr sought by Riordan J. As the invoice indicates one overall fee for all the work conducted, it is not possible to determine the amount referable to the former. (Apparently Mr Pless' sought to clarify this with Keogh & Co's solicitor, but did not receive a response.[104])
3. The narrations to invoice #9078 suggest the fees were for work between 14 and 25 November as to similar matters as #9071, including disbursements for amounts charged by counsel in relation to those activities. As to the fees charged by Keogh & Co, the same problems arises (as discussed in the preceding paragraph) in trying to isolate the time on different tasks.
4. There is more detail provided by counsel in relation to the work they undertook (see the Annexure to these reasons). Based on that material, Mr Pless has conceded $18,150 of counsel's fees were referable to the preparation of Mr Pless Snr's defence to the substantive Supreme Court proceeding, and has reduced his claim by that amount.

Submissions of the parties in respect of the claims and defence

1. In the applicant's written closing submissions dated 25 July 2023 ('AWCS'), it is contended that Keogh & Co breached its retainer with Mr Pless Snr, to exercise due care and skill in advising in connection with the Supreme Court proceeding, in one of the following ways:[105]

(a) failing to offer the Proposed Undertaking to Mr Pless in compromise of the Summons application in accordance with Mr Pless Snr's instructions;

(b) failing to clarify Mr Pless Snr's ambiguous instructions which, if so clarified, would have revealed that he wished for the Proposed Undertaking to be offered to Mr Pless;

(c) failing to explain to Mr Pless Snr on 13 October 2015 his poor prospects of opposing the Summons application, the associated costs of so doing and the alternatives available to him (in terms of offering the Proposed Undertaking), which he would have instructed Keogh & Co to do if properly advised; or

(d) failing, 'on or shortly after' the First Court Hearing, to explain to Mr Pless Snr the impact of what Riordan J had said about the transfer of the Toorak Home and other dealings with respect to Mrs Pless' funds, which (again) would have resulted in Mr Pless Snr giving relevant instructions to Keogh & Co to offer the Proposed Undertaking to Mr Pless (rather than risk a Freezing Order being made by the Court).

1. Mr Pless submits that 'an inexperienced client will need and be entitled to expect a solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client'.[106] The applicant points to the observation of Hasluck J in May v Mijatovic ('Mijatovic'),[107] that a practitioner 'must be on his mettle' to keep his client 'fully in the picture' when advising on litigation, including to 'look beyond the scope of his instructions ... and acquaint his client with any real and foreseeable risks of economic loss that might come from contemplated action'. Mr Pless submits that the decision in Mijatovic is 'relevant to (and support[s]) [his] case in this proceeding'.[108]
2. After recounting the history of events surrounding the production and signing of the Proposed Undertaking, Mr Pless submits that Mr Pless Snr thought that the Proposed Undertaking would be offered by Keogh & Co to Mr Pless 'by way of a compromise of Peter's application' and that, failing such agreement, Keogh & Co was 'to convey to the Court that Roland was prepared to give the undertaking'.[109] Reliance is placed on various material, particularly Mr Pless Snr's contemporaneous email to Keogh & Co of 25 November 2015,[110] which 'should be accepted as truthful statements of [Mr Pless Snr's] understanding as to what was to be done with the undertaking' and 'which understanding Roland obtained during the conference' on 13 October 2015.[111] It is suggested to be 'inherently implausible' that Mr Pless would 'correctly understand (and recite)' what he had been told about contempt of court if he did not comply with the undertaking, but be mistaken about what he was told as to the use of the undertaking.[112]
3. While Mr Pless accepts that his father would not have 'given an inch' in the substantive proceeding, given his general antipathy towards Mr Pless at the time,[113] he suggests Mr Pless Snr would have been willing to compromise the Summons application because it would cost him nothing (i.e. in that he was not intending to dispose of the Toorak Home in any event).[114]
4. Mr Pless further contends the Tribunal should find that Mr Pless Snr's instructions were:[115]
   • to offer the Proposed Undertaking to Mr Pless, 'either inter partes or by way of an open offer in Court'; and
   • 'not to oppose the [Summons] application insofar as it concerned the [Toorak Home] but to oppose it to the extent that it related to other assets'.
5. He adds that the explanation of Mr Ferguson and Mr Keogh that the Proposed Undertaking was signed as a fall back, with instructions to be re-confirmed if it was to be offered to the Court, should be rejected as it 'is convoluted and difficult to understand' and hence 'unlikely that Roland would have given instructions of that nature, hedged about as they supposedly were by all sorts of conditions and qualifications'.[116] That explanation is also said to be inconsistent with Mr Keogh's initial response to the complaints of Mr Pless Snr (i.e. to the effect that the Proposed Undertaking was not offered because it would have frozen all of Mr Pless Snr's assets).[117]
6. As the Proposed Undertaking was not in fact offered at the First Court Hearing and counsel opposed the Summons application 'in its entirety', it is said to follow that Keogh & Co breached its retainer.[118]
7. In the alternative, if Mr Pless Snr's instructions were ambiguous, Mr Pless contends that Keogh & Co had a duty to clarify those instructions and to draw Mr Pless Snr's attention to 'the consequences of giving effect to them' as was found to be the case in Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd, which was a negligence suit brought against an insurance broker.[119] In this regard, Mr Pless contends '[t]here is no reason in principle why a different rule should apply to solicitors'.[120]
8. That there was a need to clarify instructions is said to be evidenced by Keogh & Co's 'shifting and often incoherent narrative', including:[121]
   • the affidavit sworn by Mr Keogh on 13 October 2015 deposing to instructions as to the undertaking;[122]
   • the inconsistent accounts given by Mr Keogh following Mr Pless Snr's complaints (i.e. as to the terms of the undertaking to be given);
   • the evidence of Mr Ferguson that further instructions were required before the Proposed Undertaking could be deployed, 'which begs the question why it was necessary to have Roland sign the undertaking the afternoon before'; and
   • the inconsistencies in the evidence of Mr Ferguson and Mr Keogh as to who drafted the Proposed Undertaking and the extent, if any, of Mr Clarke's involvement.
9. It is submitted that, in those circumstances, 'it was incumbent on the respondent to clarify its instructions',[123] that the failure to do so 'constitutes (or demonstrates) a breach of the respondent's duty'[124] and that, if Keogh & Co had done so, 'Roland would have confirmed ... his instructions' to offer the undertaking to Mr Pless.
10. Even if Mr Pless Snr had not formed a view as to what was to happen with the Proposed Undertaking, it is contended that:[125]

the advice a competent solicitor would have given was that this was one of the "obvious freezing order cases" to which Mr Ferguson referred [in his evidence][126] and that, accordingly, Roland's prospects of successfully opposing the application were poor or problematic at best.

1. Further, it is submitted that a reasonably competent solicitor would have advised that:[127]
   • the estimated the costs of opposing the Summons application to be 'at least $100,000 in total';
   • the adverse consequences of unsuccessfully opposing the application would be 'an order in favour of Peter, dealing Roland a significant psychological blow (to say nothing of the costs incurred in opposing the application)'; and
   • Mr Pless Snr 'could offer Peter the [Proposed Undertaking], that it would have involved no practical imposition on Roland to do so ... and that resolving the [Summons] application on that basis would be a successful outcome'.
2. As a further alternative, Mr Pless submits that, following the First Court Hearing, Keogh & Co had a duty to 'take stock' and 'give Roland advice on the matters set out above, with the benefit of the preliminary view that Riordan J had expressed' (i.e. that the transfer of the Toorak Home after Mr Pless' demands had 'concerned' him and that 'there's good grounds for concerns [Mr Pless Snr] may dispose [of the Toorak Home] or take further action to [put it] further beyond [his reach]').[128] It is suggested that, while those views were preliminary, 'it should have been apparent ... that Roland would not be able to put on evidence sufficient to assuage the judge's "concerns".'[129]
3. It is contended that it is 'tolerably clear that such advice was not given' and that the actual advice given (i.e. in terms of Mr Ferguson's email of 14 October 2015) 'represents a dereliction of the respondent's duty' in that it 'addresses none of the matters [i.e. as set out at [112]-[113]] and 'does not advert even to the possibility of Roland offering the undertaking to Peter at all'.[130] Rather, it 'tends to give impression that Roland then had no alternative but to oppose the application'.[131]
4. It is submitted that if the proper advice had been given, and with the added force of Riordan J's comments, Mr Pless Snr would have instructed Keogh & Co in the manner outlined at [107].
5. Mr Pless contends the advocate's immunity defence is 'misconceived' and 'does not relieve the respondent of liability',[132] noting that:
   • in Atwells v Jackson Lalic Lawyers ('Atwells'), the High Court held that 'the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings'; [133] and
   • in Kendirjian v Lepore ('Kendirjian'), Edelman J observed that 'it is difficult to envisage how the immunity could ever extend to advice not to settle a case'.[134]
6. The applicant submits that, similarly, 'acting in excess of authority (or acting contrary to instructions) ... does not fall within the scope of the immunity because there is 'no "collateral attack" of the kind with which the immunity is concerned'.[135]
7. Further, the defence 'says nothing about the applicant's case insofar as it involves an omission on the part of the respondent to convey an offer to Peter inter partes to compromise his application' or the 'respondent's omission to clarify instructions (if held objectively to be ambiguous) and its failure to properly advise Roland otherwise'.[136]
8. Mr Pless quantifies his loss as a result of the alleged breach of retainer as $89,342.09, being the sum of Keogh & Co's invoices #9071 and #9078 less $18,150.00 'attributable to defence' of the substantive proceeding.[137]
9. To the extent that Keogh & Co contend that the affidavit prepared by Mr Pless Snr 'addressed issues raised by Peter's substantive claim', 'it would be for the respondent to adduce expert evidence of the costs that would have been incurred in preparing an affidavit addressing the substantive claim only', and that, having failed to do so, there is 'no evidential basis for the Tribunal to be reduced on [that] ground'.[138]

1. Keogh & Co submit that '[a]dvocate's immunity provides a complete defence to all of the Applicant's claims'.[139]
2. Further, the firm contends that the only issue of fact that needs to be determined by the Tribunal is 'what Roland instructed [Keogh & Co][140] on the afternoon of 13 October 2015; while '[w]hat Roland "would have" instructed, and ... "would have" done in a counterfactual situation ... is irrelevant' and 'apt to lead the Tribunal into error'.[141]
3. In relation to the question of Mr Pless Snr's instructions, Keogh & Co submit that he 'was not willing to concede anything', noting his 'angst, ill will and "visceral hatred" for Peter at the time'.[142] The Proposed Undertaking is said to be 'prophylactic in nature' and was never to be offered to Mr Pless, but rather to be provided to the court if required (and subject to further instructions).[143]
4. The respondent submits that - in soliciting 'provisional instructions' (or that the Proposed Undertaking be 'deployed contingently', if advantageous)[144] - Mr Ferguson 'did what any competent diligent solicitor would have done in the circumstances'.[145] This is so given:
   • the 'short time frame' making it 'difficult to obtain a complete picture of all Roland's assets';[146] and
   • the evidence of Mr Ferguson that it 'might be difficult to obtain [instructions to proffer the Proposed Undertaking at the First Court Hearing]' '[g]iven the haste in which the [Summons] application was made, and Roland's infirmity and [limited] proficiency in the English language'.[147]
5. It is contended that this position is consistent with:
   • Mr Pless Snr's 'belated complaint' about being 'made' to sign the Proposed Undertaking, which 'does not suggest he volunteered a compromise';[148] and
   • Mr Ferguson's 'unequivocal' evidence that the purpose of the Proposed Undertaking 'was not to compromise the proceeding', but rather to 'stave off stricter more onerous orders' and 'if, and only if, considered necessary by senior counsel'.[149]
6. It is said that Mr Ferguson 'perceived things as going very, very well [at the First Court Hearing]'[150] and that, a 'fair reading of the transcript [of that hearing] shows things were going very, very well for Roland'.[151] The decision of senior counsel not to use the Proposed Undertaking, which Mr Ferguson supported, was 'a forensic decision made on instructions and within "[their] marching orders".'[152] Moreover, the fact that Riordan J made no order at the First Court Hearing is said to have been an 'excellent result' and 'complete vindication of what Roland was doing'.[153]
7. While it is acknowledged that there was a conflict between the evidence of Mr Ferguson and Mr Keogh as to the provenance of the Proposed Undertaking, that is submitted to be 'immaterial to the [question of] whether advocate's immunity applies'.[154] In the latter regard, it is contended that there was 'no unconditional instruction to give an undertaking, and certainly no instructions to settle', but the Proposed Undertaking 'affected the way in which counsel conducted the case in court'.[155] It is submitted that the 'taking of provisional instructions to give an undertaking to a judicial officer (if required) was work preparatory to the hearing, with an intimate functional connection with the [First Court Hearing]'.[156]
8. It is submitted, for Keogh & Co, that the Tribunal should make its findings based on Mr Pless Snr's 'actual instructions', rather than "what might have happened ... if Roland had given instructions to settle the proceeding by way of an undertaking' given Mr Ferguson's evidence 'such instructions were simply never given'.[157]
9. In terms of whether Mr Pless Snr 'would have' instructed Keogh & Co to offer the undertaking 'if only asked and his Roland's "ambiguous" instructions not to settle were clarified', Keogh & Co point to the following matters as 'critical context evidence':[158]
   • Mr Keogh's evidence that Mr Pless Snr 'intended to divest all assets in order to avoid any bequest to his son Peter, and to leave the [Toorak Home] to his grandson'.[159]
   • Mr Pless Snr's instructions for 'interrogation' of Mr Pless sent to Keogh & Co on or about 2 November 2015. For example, the questions included:[160]

Did you wash dishes in a St Yarra restaurant in the 70ties?

Did I rescue you from there and employed you in my business, fitting and servicing Car Airconditioner & Car Radios ?

Did you have a key cut to the roller dors and stole new, luxury Cars during the night, clients - car dealers left overnight, and you drove them around the town, disguised with a beard & wig?

The Police caught you and charged you. Did I attend Court with you and pleaded to be lenient & give you a warning only, because you are a "good Boy".?

While at "Car stealing" later on, while I was overseas, did you steal my car from my garage, interfered butchered the Speedo and cruise control? Costing me heaps to repair

...

After your Mum had recovered from a terrible illness, (she almost died) did you drag her to a Solicitor to make a Will in your favour, to leave you the luxury apartment in Toorak which I had to buy you on demand, to please your Mother. ...

• That Mr Pless Snr was not concerned about the Proposed Undertaking 'not being handed up to the judge, or offered by way of compromise, as of 22 October 2015'. This may be a reference to an email sent by Mr Pless Snr to Keogh & Co, albeit on 26 October 2015, in relation the upcoming Second Court Hearing, in which he provides the 'following suggestion':[161]

At the beginning of the hearing, the Judge should be approached and be told:

My late wife Carmen was fully aware of the hostile attitude of our Son Peter Pless towards his Father Roland.

Consequently, when Peter dragged her to a solicitor to make a Will in his favor, she insisted to make such provision

That he can not act alone without his Sister's, Manuela's consent.

...

Consequently, if Manuela refuses to appear and testify ,we believe the matter should be dismissed and struck out.

If that does not work, we have to proof eventually that my wife never had any money, except what I gave her from time to time, because she didn't need any and didn't ask for any.

1. Contrary to the applicant's position, it is suggested that the 'inference is open that Roland had a bellicose attitude toward his son's litigation generally' (rather than just being concerned about the substantive proceeding).[162] It is said that Mr Pless Snr's 'rancour' and 'animosity' towards Mr Pless:
   • 'is further ventilated in [an email he send to Keogh & Co on 7 December 2015]',[163] where he (again) references giving Mr Pless 'a multimillion business ... a luxury apartment in Toorak, Motorbikes & luxury car and computers, while he was stealing my Car and butcher it';[164] and
   • is also evidenced by his reference to Mr Pless having 'constantly terrorised and abused' him as a reason for Mr Pless Snr's exclusion of his son as a beneficiary of his will.[165]
2. Noting the forensic disadvantage it faces due to being unable to cross-examine Mr Pless Snr, Keogh & Co contends that:[166]

[t]he contemporary materials, objectively established facts and the apparent logic of events are all consistent with Mr Ferguson and Mr Keogh's evidence that Roland was not willing to concede anything to his son, and never gave instructions to compromise the [Summons application] by way of the [Proposed Undertaking].

1. Rather, it is submitted that the Proposed Undertaking was created 'so that Roland would be prepared before and on [the First Court Hearing date] to provide instructions quickly and efficiently ... if, and only if, required by the court' (and subject to express instructions).[167]
2. The respondent submits that the applicant's 'principal complaint':[168]

boils down to an allegation that but for his advocates' conduct in not acting on instructions to give a more limited undertaking on 13 October 2023, there would have been a different result, and no need for the Court to exercise judicial power in calling for affidavits on oath and listing the matter for a second expensive ... hearing. The difficulty with this submission is that the allegation that an unconditional instruction was given is not supported by the evidence.

1. Further, Keogh & Co contend that '[a]n undertaking prepared on provisional instructions is an exemplar of work done out of court to be used in court par excellence' and the Proposed Undertaking therefore 'clearly has a functional connection with the proceeding expressly designed to move the litigation towards a determination by the court, if required'.[169] On that basis, it is said the Tribunal should reject the submission that there was advice to settle (or not to settle) that is an 'exception' to advocate's immunity.[170]
2. Additionally, as Mr Pless Snr did not authorise the firm to give the Proposed Undertaking to the Court, there is no basis for suggesting that Keogh & Co 'negligently acted in excess of authority' (as was the case in Donnellan, relied upon by the applicant).[171]
3. Keogh & Co submit that:[172]

[t]he very purpose of advocates' immunity is to avoid the re-litigation in collateral proceedings for negligence and other civil causes of actions, such as the issues the Applicant has ventilated and seeks to have determined by the Tribunal in this case. The collateral issues the Applicant seeks to relitigate are precisely those issue[s] determined in the principal proceedings before Justice Riordan.

1. It is submitted that the applicant has engaged in 'hindsight analysis' by cross-examining Mr Ferguson and Mr Keogh 'up hill and down dale, poring over the transcript [of the First Court Hearing], cherry picking remarks to suggest that putting up a defence to the freezing order was foredoomed to failure'.[173] Further, it is said that Mr Pless Snr's initial complaint indicated that he was 'not happy with the outcome of the proceeding' and 'has the hallmark of a disappointed defendant's regret'.[174]
2. Given that there was 'no advice that led to an agreement between [the parties] to settle their dispute, or to accept or reject an offer of compromise, as none was made', the respondent submits 'the exemption to the advocate's immunity principle in Attwells ...does not extend to the facts of this case'.[175] It submits the applicant's case 'has no tenable basis in fact or law' and 'was foredoomed to failure from its inception'.[176]
3. It is also contended that, when Riordan J determined that there was no necessity to make a Freezing Order (or require an undertaking in respect of the Toorak Home) subject to:
   • Mr Pless Snr preparing an affidavit to explain himself; and
   • counsel explaining to Mr Pless the consequences of taking any further steps to dispose of his assets,

counsel, and Keogh & Co, 'were clearly participating as advocates and officers of the court in quelling the controversy between Peter and Roland by the exercise of judicial power' (in terms of 'refraining from making an order').[177]

1. Further, while not directly engaging with the applicant's arguments about the position after the First Court Hearing, Keogh & Co submit that Mr Ferguson's summary of that hearing (i.e. by email on 14 October 2015) 'contains a succinct, professional, and accurate summary of the key arguments advanced by [counsel for each party], and the Court's ruling'.[178]
2. More generally, the respondent submits that '[t]here is an air of unreality to the Applicant's alternative claims', said to:[179]
   • amount to 'pure speculation and conjecture expressed in the subjunctive mood'; and
   • be 'predicated on a false premise: that Roland was willing to settle'.[180]
3. Keogh & Co suggested that these 'spectral alternative cases are factually inconsistent, and contradictory, and ought be rejected as being without merit and sufficient evidentiary support'.[181] Further, rather than suggesting erroneous advice was given, the 'contemporaneous emails and logic of events' supports Mr Keogh having been 'mistaken about the scope of the undertaking - after the event'.[182]
4. It is submitted by the respondents that the last alternative 'does not arise' as '[t]he very fact that Mr Ferguson extracted the [Proposed Undertaking] from Roland demonstrates that the Respondent informed Roland about the alternatives to a fully contested adjudication of the [Summons] Application' and that he 'did not want to give the undertaking' or to settle the application.[183]
5. In the latter regard, it is contended by Keogh & Co that they 'were retained to represent Roland, not decide for Roland' and Mr Pless Snr did not provide any instructions to settle.[184] It is said that Mijatovic is 'readily distinguishable' in that the solicitor was acting 'in an advisory capacity' and 'prior to proceedings being commenced'.[185]
6. As to causation, the respondent says the 'two part test of causation' found in section 51 of the Wrongs Act 1958 (Vic) applies and 'must fail for three reasons',[186] namely:
   • As the relief sought in the Summons application related to both the Freezing Order and the Information Order, and Riordan J lawfully exercised judicial power and 'directed Roland to put on an affidavit' (without formal orders), the 'wasted costs' claim is 'an indirect attack' on that exercise of judicial power to which the advocates' immunity applies.[187]
   • The 'but for' test is not met. That is, the costs were not incurred 'because the Applicant failed to advise Roland that he ought make an offer of compromise, but because Justice Riordan lawfully directed that an affidavit be filed prior to the return date'.[188]
   • The 'substantive proceeding and the [Summons application] were inextricably intertwined' and, as such, Mr Pless Snr's loss was caused by his son's claims which led to Riordan J's orders.[189]
7. In terms of causation, Keogh & Co points to Mr Ferguson's response to a question from the applicant's counsel about whether it would have made sense to 'reconsider the possibility of offering an undertaking to Peter by way of compromising his [Summons] application'.[190] In this regard, Mr Ferguson replied 'to achieve what?', in circumstances where the 'freezing order application is effectively dead in that it was not effective in any way, shape or form' and the evidence set out in Mr Pless Snr's affidavit was required for the substantive proceeding, 'so there was no advantage in settling that application'.[191]
8. Keogh & Co submit that the reduction of the claimed loss for the time spent by counsel on drafting Mr Pless Snr's defence to the Supreme Court proceeding is 'artificial' and 'overlooks the fact Roland would be required to file the affidavit material Justice Riordan had sought in the substantive proceeding in any event'.[192] They conclude:[193]

At the time of the filing of the [Summons application] there was a real lack of clarity about where Roland's money came from. Because the argument was about assets and use of assets the evidence prepared for the second hearing "killed two birds with one stone"; addressing both the [Summons] application and the substantive [Supreme Court proceeding. The element of factual causation is not made out because the alleged negligence (which is denied) was not a necessary condition of the occurrence of the alleged loss.

1. The decision in Spralja concerned the legal advice the plaintiff fisherman (Mr Spralja) 'received (or, perhaps more importantly did not receive)' from his solicitor and barristers in settling a dispute with a third party (Mr Kelly) in relation to the sale of Mr Spralja's fishing permit and shark catch quota.[194] The underlying dispute with the third party concerned whether the sale extended to all or only some of the fishing rights held by Mr Spralja, resulting in Mr Kelly bringing County Court proceedings against Mr Spralja for specific performance, with Mr Spralja making a counterclaim alleging that Mr Kelly had repudiated the sale agreement and claiming damages.[195] The dispute was settled on the basis of an offer put by Mr Kelly's counsel, namely that Mr Kelly would pay Mr Spralja the sum of $709,000 plus GST (being slightly higher than the $645,000 reflected in the original sale agreement), and with Mr Spralja to retain the statutory fishing right pertaining to an identified boat.[196] Mr Spralja contended that the settlement was 'not in his interests and that his lawyers did not ensure that he understood the terms'.[197] In particular, the settlement sum was lower than the $850,000 for which Mr Spralja had provided a signed settlement instruction.[198]
2. The respondent solicitor contended that, as Mr Spralja had failed to call expert evidence as to the reasonableness or otherwise of the settlement terms, the Court needed to be cautious in assessing any evidence as to Mr Spralja's prospects in succeeding in the dispute given it had not heard the evidence of Mr Kelly and others involved.[199] In rejecting that submission, Judge Woodward observed that:[200]

while expert evidence may be admissible to establish the scope and alleged breach of the standard of care owed by the lawyer to the client, it does not follow that the evidence is necessary. It is well established that the court is able to determine those issues for itself. In most cases involving claims against lawyers, "the Court presumably knows for itself what the ordinary reasonably prudent and careful solicitor ought to know and do".

1. Further, Judge Woodward noted that any finding as to Mr Spralja's prospects was 'not decisive on the question of breach of duty', observing that a 'competent practitioner will consider more than just a client's rights, obligations and hopes in advising the client to accept a settlement'.[201] However, he observed that the standard of care expected is to be determined 'based on events as they occur, in prospect and not in retrospect' (i.e. with hindsight).[202]
2. Judge Woodward ultimately concluded that the advice given by the solicitor and barristers to settle was deficient.[203] In doing so, he:
   • found that Mr Spralja had not given express instructions to accept the settlement offer made by Mr Kelly, although (relevantly) he was 'hesitant to find that the defendants acted entirely without instructions' as the lawyers did not strike him as practitioners that 'would act either against instructions or on a whim'.[204] Accordingly, his Honour was prepared to accept that the solicitor 'believed that he had Mr Spralja's authority to negotiate a deal' on the terms ultimately agreed;[205]
   • accepted a submission by the solicitor that 'a solicitor has authority on behalf of a client to compromise a proceeding, unless the solicitor has specific instructions to the contrary' (which did not exist in this case);[206]
   • found that the duty of the lawyers acting for Mr Spralja included:
     • obtaining as much information as possible in the time available, about the issues in the proceeding and the strengths and weaknesses of Mr Spralja 's defence and counterclaim;
     • (accepting that settlement options almost invariably arise shortly before trial) identifying the full range of possible outcomes in the proceeding, weighing those against any settlement proposals and advising Mr Spralja accordingly; and
     • ensuring that Mr Spralja had a complete understanding of each settlement proposal under consideration and gave clear and unequivocal instructions as to whether any proposal was acceptable to him. [207]
   • noted that, in considering whether the lawyers discharged their duty of care, it was relevant that the solicitor had 'been retained only a week earlier and had spent only a few hours reviewing the documents',[208] but also that the lawyers knew that Mr Spralja was 'not a sophisticated litigant [and] had limited English language skills'.[209]
3. Judge Woodward found that the breach of duty arose from two aspects of the advice provided by the lawyers, namely:[210]
   • the advice to settle was 'superficial, unbalanced and, in part, misconceived', meaning that Mr Spralja was not adequately equipped to 'engaged meaningfully with potential settlement options' or provide 'soundly based' settlement instructions; and
   • they 'did not take the steps necessary' to ensure that Mr Spralja had given updated settlement instructions that 'were informed, understood and clearly articulated'.
4. In terms of causation, and section 51 of the Wrongs Act 1958 (Vic), Judge Woodward determined that if the defendants had 'given more balanced, complete and correct advice about Mr Spralja's prospects', his reluctance to settle 'would have been both more pronounced and clearly stated' and this 'would ... have led to no settlement agreement being reached'.[211] That is, 'but for either the failure to properly advise Mr Spralja about his prospects in the original proceeding or the failure to secure proper instructions on settlement, the settlement would not have occurred'.[212]
5. It is relevant to observe that the proceeding by Mr Spralja against his lawyers had initially been dismissed (by a different judge) based on advocates' immunity, but that decision was overturned by the Court of Appeal.[213]
6. In considering the defence, Judge Woodward stated it is 'clear that the immunity can extend to work done out of court, provided it is work which "leads to a decision affecting the conduct of the case in court".'[214]
7. However, Judge Woodward found that there was 'no sense in which it can be said that [there was] a functional connection between the defendants' conduct and the judgement of Judge Anderson'[215] in entering judgement against Mr Spralja and declaring the terms of settlement valid and enforceable.[216] That is, while Judge Anderson had 'exercised his judicial power', in doing so 'he made no findings of fact or law' and 'nor did he quell any of the controversies between the parties in the original proceeding', with the latter 'achieved entirely by the terms of settlement'.[217]

Submissions of the parties on the application of Spralja

1. In relation to the applicant's alternative case, Keogh & Co draw on the observations of Judge Woodward that this requires a prospective lens (see [152]), submitting that the 'same principle applies, mutatis mutandis, to a Senior Member of VCAT evaluating [the respondent's] impugned conduct'.[218] That is to say, the '[a]dvice as to the giving or not of an undertaking' is 'not negligent merely because a court or Tribunal subsequently considers a more favourable outcome would or might have been obtained'.[219]
2. For Mr Pless, it is contended that Keogh & Co's submissions 'engage with the case that the respondent would have liked the applicant to run', rather than the 'case that the applicant in fact ran'.[220] Further, it is observed that the submission does not address the breadth of the lawyers' duty found to exist by Judge Woodward (see third bullet point at [153]).
3. The applicant goes on to quote from Spralja, suggesting that following observation of Judge Woodward is 'apposite to the present case':[221]

a reasonably competent practitioner would have explained to Mr Spralja the key elements of the proposed settlement and made sure he both understood those terms and understood that his acceptance of them would mean that "court was finished". I accept that this could have been done in various ways, but having regard to the attributes of Mr Spralja discussed, this would have been best achieved by making a contemporaneous written record of that exchange and asking Mr Spralja to sign the record to confirm his understanding and consent.

1. Referring to the issue of causation, Keogh & Co submit that, for the applicant to succeed, he has to prove - having regard to all of the circumstances - that 'Roland would have acted in a manner that avoided the loss incurred', i.e. that he 'would have instructed [Keogh & Co] to "settle" the [Summons application] by way of an undertaking not to dispose of the [Toorak Home]'.[222] It is contended that Mr Pless 'has not, and cannot, prove Roland would have acted otherwise if so advised',[223] pointing to the following matters:[224]
   • - Roland's s89A Transfer of Land Act (1958) notice to remove Peter's caveat on 17 September 2015 sent to the Land Titles Office;
   • - Riordan J's directions that Roland file an affidavit before the return date;
   • - Peter did not instruct his solicitors to compromise [his Summons] application;
   • - Zaitman's did not consent to Roland deferring drawing his defence;
   • - The bellicose tenor of Roland's 22 October 2015 instructions [which may be a reference to the 26 October 2015 email discussed at [131] (third bullet point)];
   • - Roland's "Thanks Jim. Good work" instructions upon being notified on 4 November 2015 that Peter's caveat had lapsed;
   • - Roland's 2 November 2015 "Suggested cross examination" of Peter;
   • - Roland's "costs irrelevant" instructions on 4 November 2015;
   • - Roland's perception that making offers was "a sign of weakness" as of 15 February 2016.
2. Mr Pless contends that, as to causation, he need only prove (on the balance of probabilities) that Keogh & Co's negligence was 'a necessary condition of the occurrence of' Mr Pless Snr's 'omission to offer the undertaking',[225] pointing to Judge Woodward's observation that:[226]

either or both aspects of the breach by the defendants was, in my view, a necessary condition of the occurrence of any harm that manifested as a result of the settlement. Put another way, but for either the failure to properly advise Mr Spralja about his prospects in the original proceeding or the failure to secure proper instructions on settlement, the settlement would not have occurred.

1. In this regard, Mr Pless submits that the 'selective identification of some circumstances' (see [162]) 'does not overcome the force of the matters identified [in his closing submissions]'.[227] Further, he suggests that 'one cannot properly assume, essentially as the respondent invites the Tribunal to do, that the work would have been done in any event'.[228]
2. The applicant also observes that, in discussing the question of whether the lawyers had acted without instructions in Spralja, Judge Woodward 'does not refer to Bringshaw principles' and, as such, '[t]oo much should not be made of Briginshaw principles'.[229]
3. In relation to the issue of the advocates' immunity, Keogh & Co contend that the facts in this proceeding are distinguishable on the basis that Riordan J had 'exercised judicial power by finding, as a matter of fact, that there was a serious question to be tried' but, 'as a matter of law ... it was not necessary to make any interim orders'.[230] For this reason, the respondent submits there was:[231]

a functional connection between [its] work done out of court in preparing the [Proposed Undertaking] for the contingency that things went badly, and the advocates' conduct in refraining from seeking instructions from Roland to give an undertaking in the conduct of the cause in court - because things went very well.

1. Further, Keogh & Co contend that, on the Return Date, Riordan J 'quelled the controversy between Peter and Roland' by making the Court Freezing Order.[232]
2. Mr Pless' submissions on Spralja do not address this point.

Conclusion as to the use to be made of the decision in Spralja

1. While the decision of Judge Woodward in Spralja concerns advice to settle, as opposed to a failure to give advice to settle, the context of that case (e.g. as to Mr Spralja's limited understanding of English) has parallels to the present case and, in my view, provides a helpful framework for analysis of the issues in this proceeding.

1. The fundamental issues to be determined in this proceeding are:

(a) Whether Keogh & Co breached its retainer with Mr Pless Snr in one of the ways alleged, that is by:

(i) failing to follow his instructions to offer the Proposed Undertaking to Mr Pless to resolve the Summons application before the First Court Hearing;

(ii) failing to clarify his ambiguous instructions as to the use of the Proposed Undertaking; or

(iii) failing to advise him about the possibility of offering the Proposed Undertaking to Mr Pless between the First Court Hearing and the Second Court Hearing.

(b) If Keogh & Co breached its retainer, was any loss suffered by Mr Pless Snr because of that breach?

(c) If there was a loss suffered by Mr Pless Snr because of a breach by Keogh & Co's breach of its retainer, does the advocates' immunity apply as a 'complete defence'?

1. Each of these matters is addressed in turn below.

Issue 1: Did Mr Pless Snr instruct Keogh & Co to offer the Proposed Undertaking to Mr Pless to resolve the Summons application before the First Court Hearing?

1. It can readily be accepted that a solicitor has a duty to follow his or her client's lawful instructions.[233] The duty has been codified as rule 8.1 of the ASCR.
2. It is also clear that Keogh & Co did not offer the Proposed Undertaking to Mr Pless prior to the First Court Hearing. Indeed, apart from the request to defer the defence, the Tribunal Book does not include any 'inter partes' communications between Keogh & Co and Mr Pless' solicitors (Zaitman Lawyers) at the time. Nor is there any suggestion that the counsel that Keogh & Co engaged on Mr Pless Snr's behalf (i.e. Mr Clarke or Mr McEvoy) discussed the Proposed Undertaking with Mr Pless' barrister (i.e. Mr Black) on the 'steps of the Court' (or made an 'open offer in Court').
3. Accordingly, if Mr Pless Snr had given instructions to Keogh & Co to offer the Proposed Undertaking to Mr Pless, it would be clear that Keogh & Co's failure to do so was in breach of its duty and an implied term of its retainer with Mr Pless Snr.
4. For the reasons noted at [46], I consider that I should only make a finding that Keogh & Co failed to follow instructions if I reach a state of 'reasonable satisfaction' that this was so, having regard to the High Court's decision in Briginshaw. While Judge Woodward did not expressly refer to that decision in Spralja, his 'hesitation' (see first bullet point at [153]) to find that the lawyers in that case would act against instructions is consistent with the underlying principle from Briginshaw.
5. It is contended by the applicant that Mr Pless Snr 'thought' the Proposed Undertaking was to be offered by Keogh & Co to Mr Pless 'by way of compromise of [the Summons] application', or otherwise conveyed to the Court (see [105]).
6. There is, of course, no direct evidence from Mr Pless Snr as to his thinking at the time or (more importantly) whether his 'thoughts' were converted into instructions. Nevertheless, his relatively contemporaneous communications with Keogh & Co do shed some light on his thinking and require careful scrutiny.
7. The first complaint of Mr Pless Snr, sent by email on 29 October 2015 (see [66]), is somewhat cryptic. However, it appears that Mr Pless Snr was concerned about why he was not entitled to the money taken from his wife's bank account, which he apparently considered to be his (and was only in his wife's name for tax reasons). Of course, that was the subject of the underlying Supreme Court proceeding. It is not suggested (nor could it be) that Mr Pless Snr gave instructions to settle the Supreme Court proceeding.
8. The second complaint of 25 November 2015 (see [67]) clearly evinces Mr Pless Snr's dissatisfaction with the outcome of the Second Court Hearing, observing that this gave 'satisfaction' to Peter (i.e. in terms of the Freezing Order made by Riordan J) and referring to the associated costs (although sarcastically suggesting he enjoyed paying fees to Keogh & Co). In subsequent correspondence on 5 December 2015, Mr Pless Snr describes the Second Court Hearing as '[a] total waste of time', 'which served no purpose whatsoever'.[234]
9. However, Mr Pless Snr put his complaint in terms of the Proposed Undertaking 'not [being] submitted to the Judge' and did not suggest that there had been any discussion of an offer being made to Mr Pless. Further, his comment that he 'could have offered [another] sworn statement on the spot there and [then]' (i.e. at the Second Court Hearing) is not consistent with any firm instruction to offer the Proposed Undertaking at the First Court Hearing.
10. The first clear reference to the Proposed Undertaking being offered to Mr Pless (rather than the Court itself) is in a complaint made by Mr Pless Snr to the Victorian Legal Services Commissioner on 13 September 2018,[235] where he explains his complaint in the following terms (edited as per original):

I signed an undertaking the day before a court case to end an application against me. Because that undertaking document was not supplied to either the applicant or the court, and therefore not resolved on the sport, a third another day in court was required. I am requesting that the QC, barrister + lawyer costs from the last court date be refunded.

John Ferguson, for Keogh, witnessed the undertaking and was aware of its purpose.

1. However, given that complaint was made some three years after the events in question, and in circumstances where Mr Pless Snr has passed away (and so cannot be questioned on the inconsistency between that complaint and his earlier complaints), I do not consider that it should be given any weight.
2. In his second affidavit, Mr Pless recounts discussions with his father - after they had reconciled - about the use of the Proposed Undertaking. In particular, he says that his father told him that 'Mr Ferguson said that once the undertaking was handed to the judge, "that would be the end of it" (those were the words that Roland used)'.[236] Again, it is relevant to note that the reference is to the Proposed Undertaking being provided to Riordan J, rather than being offered to Mr Pless. Further, there is some reason to doubt both the veracity of:
   • Mr Pless Snr's apparently precise recollection of the discussion with Mr Ferguson - which must have taken place at least eight months earlier - contrasted with his failure to mention that discussion in his contemporaneous complaints to Keogh & Co; and
   • Mr Pless' ability to recall the precise words used by his father in June 2022 (when he made his second affidavit), somewhere between three and six years after the discussions in question.
3. Set against this, both Mr Ferguson and Mr Keogh - who were present at the 13 October Meeting - expressly deny seeking or obtaining any instructions to offer the Proposed Undertaking to (or otherwise negotiate with) Mr Pless.[237]
4. In my view, Mr Ferguson also gave credible evidence about why he came up with the idea of preparing an undertaking (i.e. his experience at the Australian Taxation Office) and his role in drafting the Proposed Undertaking. While I accept that the need for further instructions from Mr Pless Snr before the Proposed Undertaking would be tendered to the Court (if required) made the proposal convoluted, I consider Mr Ferguson's explanations as to:
   • the use of the Proposed Undertaking as a 'fall back' if things were not going well in Court; and
   • the need to explain that document to Mr Pless Snr, and get him to sign it, at the 13 October Meeting,

to be logical, particularly given the compressed time frames and the limited information that would have been available at that time as to Mr Pless Snr's assets and dealings with his wife's assets.

1. In circumstances where Mr Pless Snr's 'thoughts' on the use of the Proposed Undertaking could only have come from Mr Ferguson, I prefer Mr Ferguson's account - consistent with Mr Pless Snr's initial complaints - that the plan was for the Proposed Undertaking to be provided to Riordan J, if required, to stave off any Freezing Order he might decide to make at the First Court Hearing which attached to property beyond the Toorak Home.
2. For these reasons, I am not reasonably satisfied that Mr Pless Snr instructed Keogh & Co to offer the Proposed Undertaking to Mr Pless.

Issue 2: Was there ambiguity in Mr Pless Snr's instructions that Keogh & Co was obliged to resolve by confirming those instructions?

1. I accept Mr Pless' submissions that a solicitor has an obligation to clarify his or her instructions where they are ambiguous, just as the insurance broker did in Geoffrey W Hill. In that case, there was ambiguity about the client's instructions to the broker to effect insurance for 'loss of profit for $100,000 with a six month indemnity period', in circumstances where the client's profits were approximately $200,000 per annum. In completing the proposal, the broker identified the sum insured as $100,000 (without checking with the client) despite a note on the proposal form that '[t]he sum insured should represent the gross profit for twelve months'. When the client suffered loss, the insurance company paid out the sum insured on a pro-rata basis, which was less than the actual loss of profits incurred. Gleeson CJ was unable to accept that the instructions given by the client were to effect that it only wished to be covered for 12 months gross profit of $100,000, observing that '[a]t the very best in favour of the insurance broker, the instructions were ambiguous and required clarification'.[238]
2. In the present case, the applicant says the ambiguity is evidenced by the 'shifting and often incoherent narrative' as to the use to be made of the Proposed Undertaking (see [111]). A difficulty with that proposition is that, as noted at [185]-[186], I accept that Mr Ferguson had a clear idea about how the Proposed Undertaking was to be deployed even if that was convoluted.
3. Further, for the reasons already noted in the preceding section, the correspondence suggests Mr Pless Snr was clear (at least at the time) about the Proposed Undertaking being presented to Riordan J. Accordingly, it was unnecessary for Keogh & Co to seek clarification as to whether Mr Pless Snr wanted to make an offer to Mr Pless to resolve the Summons application based on the Proposed Undertaking.
4. In reaching these conclusions, I also take account of the limited time which was available to Keogh & Co to:
   • read and understand the nature of the Supreme Court Proceeding and Summons application brought by Mr Pless;
   • brief counsel to appear at the hearing the next day;
   • prepare, explain and have Mr Pless Snr sign the Proposed Undertaking; and
   • prepare an affidavit by Mr Keogh to support the Proposed Undertaking in the event it was to be produced in court the next day.
5. In my view, there was insufficient time for Keogh & Co to consider and advise Mr Pless Snr on all alternative means to resolve the Summons application between its receipt and the 13 October Meeting and, as such, it was perfectly appropriate to proceed with the strategy that Mr Ferguson envisaged.
6. As such, I am not satisfied (on the balance of probabilities) that Keogh & Co had or breached a duty to clarify its instructions before the First Court Hearing.
7. In addition, even if I were to find that Keogh & Co breached its obligation to clarify its instructions at the time, it does not necessarily follow that the costs of preparing Mr Pless Snr's affidavit and attending the Second Court Hearing were caused by that breach.
8. In order to establish causation, Mr Pless needs to establish that, if Keogh & Co had provided advice as to the merits of making an offer to Mr Pless, Mr Pless Snr would have accepted advice - at that time.
9. I am not prepared to infer that Mr Pless Snr would have done so in circumstances where:
   • around three weeks earlier, he had instructed Mr Keogh to apply to remove the caveat that Mr Pless had lodged in respect of the Toorak Home;[239] and
   • when the caveat lapsed a few weeks after the First Court Hearing (and in the midst of the preparation of his affidavit), he sent an email to Mr Keogh stating 'Thanks Jim, good work !'.[240]
10. The caveat only operated to forbid Pless Nominees, as the then registered proprietor, from registering 'any instrument affecting the estate or interest' (i.e. ownership of the Toorak Home). Relevantly, the effect of the caveat (while it existed) was narrower than the Proposed Undertaking (applying to both Mr Pless Snr and Pless Nominees and covering any step to 'dispose, encumber or otherwise deal with' the property) and the Freezing Order subsequently made by Riordan J (which also prevented actions to reduce the value of the Toorak Home).
11. For these reasons, I am not satisfied that:
    • Keogh & Co breached its retainer by failing to clarify Mr Pless Snr's instructions prior to the First Court Hearing; or
    • (if there was a breach) it caused any loss to Mr Pless Snr, on the basis that he would not have accepted any advice to settle at that time.

Issue 3: Having regard to what was said by Riordan J at the First Court Hearing, should Keogh & Co have advised Mr Pless Snr to offer the Proposed Undertaking to Mr Pless between the First and Second Court Hearings?

1. As has already been made clear, Riordan J did not consider it necessary to make any substantive orders in relation to the Summons application following the First Court Hearing. He simply adjourned the hearing to 19 November 2015 and reserved costs.[241] In order to consider the third issue, it is necessary to examine the reasons for his Honour's decision.
2. While Riordan J suggested that he was 'currently minded to think that there [was] a prima facie case' or 'serious question to be tried',[242] and some risk that Mr Pless Snr might 'dispose or take further action to make [the Toorak Home], which he's already put beyond his immediate reach, ... further beyond it',[243] he did not consider it necessary to make any interim orders on the basis that:
   • Mr Pless Snr had not yet had a proper opportunity to explain matters, particularly the financial arrangements between himself and Mrs Pless;[244]
   • counsel had now been engaged, who could explain the likely consequences of any further action being taken by Mr Pless Snr to dispose of the Toorak Home, such that it 'would be a brave move', if the 'court later felt that it had been misled when it was told there was no intention of disposing of this asset ... and subsequently found that in the interim things had occurred';[245] and
   • given Mr Pless Snr had 'lots of opportunity to consider these matters and he hasn't, it appears ... disposed of the shares [in Pless Nominees] already [i.e. to put the Toorak Home further beyond his reach], then the risk of him doing so in the next month ... would be minimal'.[246]
3. While Mr Ferguson provided a prompt and accurate report of the First Court Hearing to Mr Pless Snr (see [81]), noting that on the Return Date 'Justice Riordan [would] make a further decision on the freezing orders', he did not provide any advice as to the likelihood of a Freezing Order being made or the steps that Mr Pless Snr could take to mitigate the costs and risks of a Freezing Order being made. Further, there is nothing to suggest that Mr Ferguson or Mr Keogh provided such advice at any time between the First Court Hearing and the Return Date.
4. Mr Pless contends that this was 'an obvious case' for a freezing order to be made and a competent solicitor would have advised Mr Pless Snr that his prospects of opposing the application for Freezing Orders were 'poor or problematic at best', that it would be costly to do so and that he ought offer the Proposed Undertaking to resolve the Summons application (see [113]-[114]). He says this was more so after the First Court Hearing, in light of the concerns expressed by Riordan J (see [115]).
5. As discussed at [153], in Spralja, Judge Woodward found that the duty of the lawyers in that case - in acting for Mr Spralja as a defendant in proceedings - included obtaining all information necessary (within the time available) to understand the issues in the proceeding and the strengths and weaknesses of the client's defence, as well as identifying the range of possible outcomes in the proceeding and advising the client in the context of any settlement proposals.
6. Similarly, in Mijatovic, Hasluck J found that the duty of the solicitor in acting for a litigant extended 'beyond the scope of his instructions' and included 'acquaint[ing] his client with any real and foreseeable risks of economic loss' from the proposed proceeding (see [104]).
7. While it may be accepted that there are differences between the present case and each of Spralja (where a settlement offer had been made by the plaintiff) and Mijatovic (where the client instituted the proceedings), the discussion of the broad scope of a lawyer's duty in representing a client in litigation remains apt.
8. Although Riordan J was willing to see if Mr Pless Snr was able to provide a satisfactory explanation for the transfer of funds from Mrs Pless' account (going to the real issue to be tried in terms of the substantive proceeding) and/or the transfer of the Toorak Home to Pless Nominees (going to the necessity of a Freezing Order), given that:
   • Mr Keogh had given effect to the transfer of the Toorak Home from Mr Pless Snr to Pless Nominees, despite being aware of the concerns raised by Mr Pless Snr's former solicitors (see [18]);
   • Mr Ferguson was aware (as he recounted in his 14 October 2015 email) that Riordan J found the timing of that transfer 'strange'; and
   • Mr Ferguson heard the entirety of the exchange between Riordan J and Mr Clarke at the First Court Hearing (particularly the matters highlighted at [50]).

I consider that the prospects of the proposed affidavit allaying Riordan J's concerns and avoiding a Freezing Order being made on the Return Date was (objectively) quite low, with the real question being whether it would be possible to limit any Freezing Order to the Toorak Home or Riordan J would extend it to any other assets of Mr Pless Snr or his related entities.

1. I consider that a reasonably competent solicitor would have drawn this to the attention of Mr Pless Snr, either as part of the report of the First Court Hearing or by arranging a meeting with Mr Pless Snr soon thereafter. I also consider that a reasonably competent solicitor would have considered and advised Mr Pless Snr on the likely costs, and as to his options to mitigate those costs, of continuing to defend the Summons application. As in Spralja, the actual advice provided (i.e. in Mr Ferguson's email of 14 October 2015 (see [81])) was 'superficial' and failed to ensure that Mr Pless Snr could given updated instructions on an informed basis (see [154]).
2. That there would be complexity (and therefore considerable cost) in preparing the contemplated affidavit (including the need for evidence from Mr Pless Snr's accountant) would have been apparent from the detailed description of transactions in the statement of claim which had been filed by Mr Pless[247] as well as the submissions of Mr Black at the First Court Hearing.
3. The cost ought to have been foreseeable. However, it can be inferred that communication in this regard was limited. Following the First Court Hearing and the issue of the first invoice by Keogh & Co (which had all but exhausted the funds then held in trust),[248] it appears Keogh & Co requested that Mr Pless Snr deposit a further $25,000 into trust.[249] And then a further $25,000 appers to have been requested by Keogh & Co between 19 and 27 November 2023.[250] Relevantly, Mr Pless Snr was already raising concerns on 25 November 2015 (see [67]) before he received invoice #9078, by which Keogh & Co sought an additional payment of $57,258.36 (i.e. with the total cost more than double the initial $50,000 that had been placed in trust).
4. In terms of steps that could have been taken to mitigate the costs, and in circumstances where Mr Pless Snr had already signed the Proposed Undertaking, an obvious option was to offer that to Mr Pless to compromise that part of the application relating to the Freezing Order.
5. For these reasons, I am satisfied that Keogh & Co breached its retainer with Mr Pless Snr by failing to provide such advice to him following the First Court Hearing.

Issue 4: Did Mr Pless Snr suffer loss because of the failure to provide the advice to offer the Proposed Undertaking to Mr Pless between the First and Second Court Hearings?

1. While there is, of course, no direct evidence from Mr Pless Snr as to what he would have done if he had been properly advised at to the likely costs of continuing to defend the Summons application (and as to his options to mitigate those costs), in light of the comments made by Riordan J during the First Court Hearing, I consider it open to find that Mr Pless Snr would have agreed to offer the Proposed Undertaking to Mr Pless (in those circumstances) and otherwise taking steps to minimise the extent (and associated cost) of any affidavit to be filed.
2. It is true that Mr Pless Snr had made many comments reflecting his extreme dislike for his son (at least at that point of time). It would be fair to say that, at the time, he was clearly unwilling to settle the Supreme Court proceeding on any basis. However, despite his age and language barriers, he had been convinced by Mr Ferguson to sign the Proposed Undertaking to avoid a more onerous Freezing Order. In those circumstances, I am satisfied and find that, if he been properly appraised as to the matters set out in the proceeding section, he would have come round and agreed to offer the Proposed Undertaking to Mr Pless with a view to settling the Summons application.
3. The assessment of causation and loss is difficult in this matter because there is obviously an interrelationship between the substantive Supreme Court proceeding and the Summons application.
4. At the most basic, some of the fees reflected in the relevant Keogh & Co invoices related to the preparation of Mr Pless Snr's defence to the substantive proceeding. So much is conceded by Mr Pless, in reducing the claim by $18,150 in respect of the time spent on the defence by Mr Clarke QC and Mr McEvoy.
5. Further, I reject Mr Pless' (self-serving) statement[251] that he would simply have accepted the Proposed Undertaking to resolve the Summons application. That evidence is inconsistent with:
   • the Summons application including applications for both a Freezing Order and the Information Order;
   • Mr Pless' rejection of a more modest request from Mr Pless Snr to defer the time for filing of his defence in the Supreme Court proceeding (see [99]); and
   • the concerns expressed by Mr Black (who represented Mr Pless for the Summons applications) in the First Court Hearing about Mr Pless Snr selling the shares in Pless Nominees or taking other steps which might affect the value of the Toorak Home.[252]
6. In my view, it can properly be inferred that:
   • Mr Pless would have wanted to see an affidavit from Mr Pless Snr at least addressing his assets, and the funds he had taken from Mrs Pless' accounts, before he would be likely to agree to any settlement of the Summons application; and
   • the form of the undertaking acceptable to him would have been the subject to some negotiation to be closer to what Riordan J ultimately ordered, e.g. to address indirect dealings with Toorak Home.
7. While I find that the breach of retainer caused loss to Mr Pless Snr, I consider that loss is limited to:
   • the cost of Keogh & Co drafting, and counsel settling, that part of Mr Pless Snr's affidavit (and the affidavit of his accountant) directed to defence of the Freezing Order (as opposed to defence of the Supreme Court proceeding);
   • the cost of counsel preparing for the hearing in opposition to the Freezing Order (including time spent on researching relevant authorities); and
   • the cost of the Second Court Hearing beyond the time it would have taken for Mr McEvoy (as senior counsel would not have been needed) and Mr Ferguson to attend to briefly explain the consent orders to Riordan J (if required),[253]

in turn reduced by some costs for Keogh & Co to obtain further information from Mr Pless Snr (i.e. as to his assets and the transactions concerning his wife's accounts) and the inevitable costs of going back and forth with a proposed offer of settlement and then finalising proposed consent orders to put before the Court.

1. There is insufficient information in the invoices rendered by Keogh & Co, or the memorandum of costs from counsel, to precisely isolate the costs identified in the preceding paragraph. Doing the best I can with the information available, I have determined the loss to be $37,500.00. While there is no exact science, in reaching this assessment, I have taken into account the following matters:
   • based on the memorandum of costs issued by counsel and the four hours of Mr Ferguson's time referenced in invoice #9078, the loss directly associated with preparing for and appearing at the Second Court Hearing (less an allowance for half an hour of Mr McEvoy's and Mr Ferguson's attendance at a hearing to consider consent orders) was in the order of $25,000;
   • Mr Pless has conceded that around 20% of counsels' time was related to the preparation of the defence to the Supreme Court proceeding. It is unlikely that Keogh & Co would have spent less time than counsel and so, if the same percentage is applied to Keogh & Co's fees, there would be around $5,500 in fees allowed. The total of such amounts would be around $25,000;
   • the remaining costs are roughly allowed on a 75:25 basis, recognising that a considerable part of the work in preparing the affidavits was relevant to both the Summons application and the substantive proceeding, and that some work would have been required in respect of negotiating any consent orders.
2. For completeness, I note that, after the hearing commenced (and Mr Pless had given his evidence and Mr Ferguson had commenced giving evidence), Keogh & Co sought to produce further documents to show that Mr Pless Snr had paid Keogh & Co's fees from trust funds and, as such, sought to contend that he had not suffered any loss personally. I did not allow this material to be tendered and/or Keogh & Co to amend its defence. Essentially, this was because:
   • the substance of Keogh & Co's defence had been a bare denial that Mr Pless had 'suffered any losses whether in the amount claimed or in any other amount';[254]
   • on the material before the Tribunal, the only apparent basis for the denial was that it was necessary to file a defence to the substantive proceeding and the affidavit prepared and filed for Mr Pless Snr 'addressed issues raised by Peter's substantive claim'.[255] In essence, this was an argument that the work would have had to be undertaken anyway;
   • the first time that any contention was raised that 'Roland's legal fees were not paid by Roland, but by Pless Nominees', was in the Respondent's Outline of Submissions filed on 20 September 2022 (the first day of hearing) and those contentions were not supported by any evidence;
   • no attempt was made to amend the points of defence until 12 October 2022 (after Mr Pless had given his evidence and Mr Ferguson had given most of his evidence), and those amendments extended well beyond what had been foreshadowed (including identifying a second company from which the funds had been drawn and involving tracing of the source of funds deposited into Mr Pless Snr's account);[256]
   • the amendments included a reference to a file note of Mr Ferguson, which was sought to be included in the Tribunal Book and would have potentially raised issues as to Keogh & Co's knowledge as to the source of the funds used to pay its accounts;[257] and
   • allowing these matters to be raised would have necessarily led to even further delay (and cost),[258] contrary to the Tribunal's obligation to 'determine each proceeding with as much speed, as ... a proper consideration of the matters before it permit' (and where the presumption is that parties bear their own costs).[259]

Issue 5: Does advocates' immunity apply to shelter Keogh & Co from any liability?

1. I accept that the advocates' immunity applies to work done in Court, as well as any work - whether done by counsel or a solicitor - which is functionally connected with work in Court.
2. However, the decisions in Attwell, Kendirjian and Spralja all make clear that the immunity does not extend to advice regarding settling a matter out of Court, including situations where the settlement is given effect to by an order of a Court.
3. I do not accept that, because Riordan J did make a Freezing Order at the Second Court Hearing, that the work done by Keogh & Co and Counsel had the 'functional connection' with the orders to bring the advocates' immunity into play. Relevantly, the breach of retainer which I have accepted does not involve consideration of anything said, done or determined by Riordan J at the Second Court Hearing. As such, there is no 'collateral attack' on his decision, being the basis for the advocates' immunity.
4. On this point, the case is indistinguishable from Spralja, where Judge Woodward found that the advocates' immunity did not apply (see [158]).
5. For these reasons, I reject that defence.

1. Having regard to the foregoing reasons, I have ordered that Keogh & Co pay Mr Pless (in his executorial capacity) the sum of $37,500.00, effectively by way of refund of fees that would not have been required or paid by Mr Pless Snr if Keogh & Co had not breached its retainer in the manner identified at [199] to [211].
2. Mr Pless has also sought costs and interest, but neither party addressed me on those matters and I do not know whether there have been any Calderbank offers made by the parties which may influence the former.
3. Accordingly, I have made orders for the filing and exchange of submissions on costs and interest by each party, with a view to determining the matter on the papers - pursuant to section 100(3) of the VCAT Act - subject to consideration of any objections to that course.
4. Of course, given the long and tortured history of this proceeding, it would be desirable if the parties could come to agreement on costs and interest and present me with consent orders. I encourage the parties to engage in discussions to that end.

Memorandum of fees for Mr Clarke: 29 October to 19 November 2015

Tax invoice 712851 dated 29 November 2015 from Dever's list for Mr McEvoy

[1] Leo Tolstoy, Anna Karenina (as translated by R Bartlett) (Oxford World Classics, United Kingdom, 2014), 3.

[2] Peter Pless as Executor of The Estate of Roland Pless, Deceased and Anor v Rathey [2021] VCAT 1304 ('Pless v Rathey'). There was also a residential tenancy proceeding involving Mr Roland Pless and his daughter: see Pless v Rathey [23].

[3] Pless-Bennett v Borah [2019] VCAT 275.

[5] Order 1 of VCAT's orders dated 16 July 2019.

[6] [2021] VCAT 1352 [3].

[7] To mark the passing of Queen Elizabeth II.

[8] [2018] VCC 437.

[9] Affidavit of Peter Maximilian Pless dated 30 September 2021 ('First Pless Affidavit') [2].

[21] Ibid [8]. It appears these fears were unfounded as Mrs Pless remained married to Mr Pless Snr, and survived for almost two more decades. Further, Mr Pless Snr did not remarry before he passed away.

[27] The trust was named after Anton Pless, the son of Ms Rathey.

[28] Affidavit of James Michael Keogh, affirmed 15 July 2019 ('Keogh Affidavit'): Exhibit R2 [14].

[31] This may be inferred from the notice from the Registrar of Titles (TB, 66), which refers to the application being lodged by Keogh & Co.

[34] Summons dated 8 October 2015: TB 105-115.

[35] Defined at [4(b)] in the following terms: 'where there is more than one of you, includes all of you and includes you if you are a corporation'.

[38] Ibid (and First Pless Affidavit [31]).

[43] Transcript of First Court Hearing ('TxFCH'), TB, 175 (p 31, l 10-29).

[44] Order made by The Honourable Justice Riordan on 19 November 2015: TB, 273 [4].

[46] Pless v Rathey [2021] VCAT 1304 [17].

[50] Transcript ('Tx'), 473 (lines ('L') 10-11).

[53] Second Further Amended Points of Claim dated 5 April 2022 ('2nd APOC') [15]-[17].

[58] Ibid [18], [22], [25] and [26C].

[59] Applicant's Written Closing Submissions dated 25 July 2023 ('AWCS') [102].

[61] Respondent's Outline of Closing Submissions dated 7 August 2023 ('ROCS') [1]-[2].

[63] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.I

[64] Transcript of First Court Hearing ('TxFCH'): TB 144-182, 31 (L26) to 32 (L4).

[67] Second Affidavit of Peter Maximillian Pless dated 24 June 2022 ('Second Pless Affidavit') [4]-[5].

[74] Affidavit of John Ferguson dated 14 June 2022 [36].

[81] Tx, 475 (L14-18) and Tx, 496 (L14-15).

[83] Further Affidavit of James Michael Keogh dated 19 September 2022 ('Further Keogh Affidavit'): Exh R3.

[84] Leave was granted to file that affidavit, excluding those aspects which explicated the relationship between the notes and the form of the affidavit prepared on 13 October 2015 or which suggested that Mr Pless Snr was privy to the discussion. In the former case, this is on the basis that there is sufficient evidence before the Tribunal, in terms of comparing the file notes to the sworn affidavit to understand their connection: see VCAT Act, s 102(2). In the latter case, it is on the basis that the presence or otherwise of Mr Pless Snr was not identified by either Mr Keogh or Mr Ferguson prior to the day set aside for final submissions and I consider it would be unfair and prejudicial to allow that evidence (which, for reasons explained in the hearing, does not sit easily with the remainder of the evidence) without allowing both Mr Keogh and Mr Ferguson to be brought back for further cross-examination, which would inevitably delay the finalisation of the proceeding, which has been on foot since 2018: see Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 98(1)(d) regarding the efficient resolution of disputes.

[87] Email sent at 12:11pm on 1 December 2015: TB, 295.

[88] Email sent at 4:37pm on 1 December 2015: TB, 294.

[90] This may be related to his appointment as a judge of the Federal Court of Australia.

[91] Affidavit of Anthony John Muir dated 19 September 2022 [6] and [8].

[92] Third Affidavit of Peter Maximillian Pless dated 6 April 2023: Exh A3 [3].

[94] Tx, 6-9. Ultimately, I refused this application.

[97] Letter from Donna Cooper to Mr Daniel Ang dated 24 September 2020 (request R4987). The ruling was that '[i]n the opinion of the Ethics Committee ... [a]s the executor of the last will of Roland Pless ... Peter Pless stands in the shoes of Roland Pless and is entitled to receive from Keogh & Co. Pty Ltd any client documents held by them on behalf of Roland Pless'.

[98] VCAT's orders dated 19 January 2021 and 4 March 2021.

[99] The parties filed a tender list on 18 August 2023, which was substantially (but not wholly) agreed.

[100] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 98(1)(b).

[107] [2002] WASC 151; (2002) 26 WAR 95 [148].

[119] AWCS [66] (citing (1990) 6 ANZ Ins Cas 61-012, 76,765 (per Gleeson CJ)).

[128] AWCS [86] (see TB, 164 and 175 (transcript of the First Court Hearing: 20.21-23, 31.31, 32.1-32.4)).

[133] (2016) 259 CLR 1, 24 [45].

[134] [2017] HCA 13; (2017) 259 CLR 275, 281 [18].

[135] AWCS [99] (citing Donnellan v Watson (1990) 21 NSWLR 335).

[137] AWCS [102] (representing 3 days of Mr McEvoy's time and 7.5 hours of Mr Clarke's time).

[140] The submission erroneously refers to 'the Applicants'.

[142] ROCS [9] (citing Tx, 154 (L1-3) and Tx, 326 (L20) to 327 (L20).

[149] ROCS [17] (citing Tx, 218 (L6-14), Tx, 220 (L16), Tx, 221 (L1), Tx, 239 (L12-18), Tx, 236 (L31) to Tx, 237 (L29), Tx 309 (L15-21) and Tx, 330 (L29) to Tx, 331 (L23)).

[152] ROCS [21] (citing Tx, 260 (L9-29), Tx, 306 (L11-21) and Tx, 324 (L12-24)).

[159] Ibid (citing Keogh First Affidavit [14]).

[160] TB, 385-388 (typographical and grammatical errors from original).

[165] ROCS [137] (referencing TB, 522-527 [cl 3]).

[177] ROCS [146], [150] & [151].

[194] [2018] VCC 437 [2].

[200] Ibid [11] (footnotes omitted). The quote is from Neagle v Power [1967] SASR 373, per Bray CJ at 376.

[202] Ibid (quoting Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172 per Megarry J at 185).

[213] Ibid [239] (referring to Spralja v Bullard [2016] VCC 138 and Spralja v Bullard [2017] VSCA 32).

[218] Respondent's Supplementary Note - Spralja v Bullard & Ors [2018] VCC 437 dated 16 August 2023 ('RSN') [3].

[220] Applicant's submissions in reply to the respondent's supplementary note dated 25 August 2023 ('ARSN') [1].

[221] ARSN [3] ([2018] VCC 437 [234]).

[226] Ibid ([2018] VCC 437 [261]).

[233] Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) (No 3) [2004] VSC 164 [16].

[234] Email dated 5 December 2015 from Mr Pless Snr to Keogh & Co: TB, 305.

[237] Regarding Mr Ferguson, see [79] and Mr Keogh, see Tx, 502 (L31), 504 (L1-13) and 505 (L28-29).

[238] (1990) 6 ANZ Insurance Cases 61-012, 76,765.

[240] Email of 4 November 2015: TB, 395

[241] General Form of Order dated 14 October 2015: TB, 184-185.

[248] TB, 191. Of $25,000 paid into trust by Mr Pless Snr, only $233.73 remained.

[249] TB, 231 (this an be inferred from the total amount paid by deduction from trust for invoice #9071, and the 'credit held in trust').

[250] This can be inferred from the difference between the credit held in trust recorded in invoice #9071 and the amount paid by deduction from trust for invoice #9078.

[253] Of course, Mr Ferguson was quite familiar with using consent orders to resolve Freezing Order applications.

[254] Points of Defence to Second Amended Points of Claim dated 14 June 2022 [21] and [28].

[255] Respondent's Outline of Submissions dated 20 September 2022 [28].

[256] (Proposed) Amended Points of Defence to Second Amended Points of Claim dated 12 October 2022 [21A].

[257] Barnes v Addy [1874] UKLawRpCh 20; (1974) LR 9 Ch App 244. After I raised this matter with the parties, the respondent made an application for recusal based on apprehended bias. I dismissed that application for reasons given at the time.

[258] Noting that the proceeding ran for six full days, when the parties had estimated three days.

[259] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 98(1)(d) (and s 109(1)).