DISTRICT COURT OF QUEENSLAND

1. [1]
   By this action the plaintiff claims damages for professional negligence from the defendants, a solicitor who is in sole practice and her husband, who is also a solicitor and was at the relevant time employed by her in the practice. The employed solicitor, the second defendant, had the carriage of the plaintiff’s action, which was an application to the Family Court for distribution of assets, consequent upon the breakdown of the marriage between the plaintiff and her former husband. The plaintiff claimed that as a result of the negligence of the second defendant, for which the first defendant was vicariously liable, she had suffered financial loss in that the outcome of the Family Court proceeding was less favourable to her than it ought to have been, and also that she had suffered psychiatric injury. That claim is also pleaded as a cause of action for damages for breach of the contract of retainer, and there is also a claim for damages under the Fair Trading Act 1989 for misleading and deceptive conduct

History of the action

2. [2]
   This matter was commenced by plaint filed in the Southport District Court on 11 April 1997, by which the plaintiff claimed from the first and second defendants $200,000 damages for professional negligence. The original plaint did not clearly plead any particular cause of action against either defendant, and on 23 January 1998 another judge struck it out, but with liberty to replead;  costs of the application were reserved. A new version of the plaint was filed on 22 April 1998, which alleged that the defendants had been negligent, and had engaged in false or misleading and deceptive misrepresentation, in relation to the conduct of property settlement proceedings in the Family Court commenced by them on behalf of the plaintiff in May 1993, which proceedings were heard and determined on 12 April 1994. That plaint claimed $250,000 and alleged that as a result the plaintiff suffered loss of matrimonial property, and psychiatric injury which led to loss of earnings, and incurred legal expenses, and suffered other loss and damage.

3. [3]
   The first and second defendants filed an Entry of Appearance and Defence on 3 June 1998 which, broadly speaking, denied everything. They subsequently applied for an order that this plaint also be struck out, or in the alternative an order for particulars. That application came on before me on 23 October 1998, and I ordered that the plaintiff provide certain further particulars, but otherwise the application was unsuccessful and I made no order as to costs of the application. Further and better particulars were filed by the plaintiff on 16 December 1998. However, on 16 November 1998 the plaintiff had filed an amended plaint by which she sought to add claims under the Fair Trading Act 1989, and for damages for breach of contract of retainer, and raised some additional issues.

4. [4]
   It does not appear that the leave then required by District Court rule 104(3) to add a new cause of action by amendment had been obtained by the plaintiff. The plaintiff filed an application on 26 February 1999 for leave to amend the plaint in terms of the amended plaint filed on 16 November 1998, and leave to make the amendments was given by Judge Brabazon on 8 April 1999. On that occasion, His Honour also ordered that by 8 June 1999 the plaintiff give further and better particulars of certain paragraphs of the existing particulars filed on 16 December 1998, and by that time complete discovery. Costs were made costs in the cause.

5. [5]
   Amended further and better particulars were filed by the plaintiff on 7 June 1999, together with a list of documents. The defendants’ affidavit of documents was filed on 24 June 1999. An amended Entry of Appearance and Defence was filed on 28 June 1999, which contained admissions that the plaintiff engaged the first defendant in March 1993 to act in relation to domestic violence and family law matters, and that the second defendant informed the plaintiff that he would represent the plaintiff in the Family Court to avoid the necessity to engage counsel, and the second defendant appeared for the plaintiff in the Family Court on 11 and 12 April 1994. There was also an admission that there was a contract of retainer for the first defendant’s services. The defendants admitted that they did not cause a Mr Twohill to be removed as the solicitor for the plaintiff’s former husband in the family law proceedings, and that they did not deliver to the plaintiff a client care letter or a recognised cost agreement as required under the rules of the Queensland Law Society, but otherwise everything alleged by the plaintiff was put in issue. It was also alleged that if the Fair Trading Act applied to the dealings between the parties, the claim under that Act was statute barred.

6. [6]
   On 9 November 2000 another application came before His Honour Judge Brabazon, when orders were made requiring a non–party to produce certain documents, and both parties were given liberty to apply for further directions, including directions about an ADR process and the trial of the action. An application for enforcement of this order was filed by the plaintiff on 19 February 2001, and this application came before His Honour Judge Brabazon on 18 April 2001, when His Honour ordered a firm of solicitors to produce certain documents at the registry at 10.00am on 20 April 2001, and adjourned the application until then. On that day His Honour adjourned the enforcement application to the trial of the action, directed that the action be set down for trial for four days from Monday, 17 September at Southport, and directed that the plaintiff supply particulars as previously ordered, and provide a statement of loss and damage, by 22 June 2001.

7. [7]
   An application on behalf of the defendants seeking relief arising out of what was alleged to have been a failure to provide proper particulars of the plaintiff’s pleading as ordered came before me on 30 July 2001. On 22 June 2001, the plaintiff had filed a statement of loss and damage which however did not contain all the matters required to be provided by the rules, and did not provide details of how the various amounts claimed by way of special damages were made up. Copies of all of the relevant documents were not attached to the Statement of Loss and Damage, because it had been filed and the plaintiff had assumed (correctly) that the court would not want on the court file copies of all of the receipts which she said she had.

8. [8]
   Under the current rules, such statements are served but not filed, but it was appropriate for her to provide the defendants’ solicitors with copies of all the documents on which she relies in establishing the amount of her loss, and indeed any other documents on which she relies which she had not already disclosed, and I ordered her to do so within 14 days.

9. [9]
   It became apparent, however, in the course of that hearing that the prospects of the plaintiff being able to provide proper particulars of the various allegations in the amended plaint were slim, because of her lack of understanding of ordinary legal procedure. It would be unsatisfactory to keep putting off the trial and keep making orders for the supply of particulars with which the plaintiff would clearly have difficulty complying, and I was not persuaded that it was appropriate to dismiss the plaintiff’s claim because of the failure to comply with the earlier orders. The only practical solution seemed to me to start the trial and put the plaintiff in the position where she had to call what evidence she wanted to call, but on the basis that if necessary time would be given during the trial to the defendants in order to ensure that they had a proper opportunity to respond to such evidence as the plaintiff led, and to such case as the plaintiff thereby made.

10. [10]
    Shortly before the commencement of the trial, however, the plaintiff appointed solicitors, and appeared at the trial by counsel. With their assistance a document entitled “Clarification of the Particulars of Professional Negligence of the First and Second Defendants” was prepared, and I gave leave to file that document on 18 September 2001, the second day of the trial. That document set out the allegations of negligence on the basis of which the trial was conducted and the plaintiff’s case was ultimately argued. Some reference to the earlier pleadings and particulars is appropriate however, because some point was made on behalf of the defendants that the final document contained particulars of negligence which were different from those allegations which had been advanced earlier. In addition, in earlier pleadings of the plaintiff it was alleged that the plaintiff had lost substantial matrimonial property as a result of the defendants’ negligence, in effect an allegation that but for that negligence the plaintiff would have obtained a much more favourable order from the Family Court. I will return to the significance of this change in direction of the plaintiff’s case later.^[1]

Background: plaintiff’s matrimonial dispute

11. [11]
    The plaintiff met Garry John Luadaka (the husband) in September 1981 and married him on 5 March 1982; they then each had one child, and there was another child born to them during the marriage: Exhibit 42. They began to live together in a property at Short Street, Nerang (“the property”) which had been purchased in December 1981 by the husband and his parents. His parents had come from the United Kingdom in November 1981 and the property had a flat downstairs where they were to live, with him (and later the plaintiff) living upstairs. The parents contributed $40,000 to the purchase price of $108,000 and also paid $5,000 for legal fees and other cost of purchase: Exhibit 7; p 186. The rest of the price was borrowed, by the husband and his parents, although part ($35,000) was paid off by the husband from the sale of two other properties he had owned earlier: Exhibit 7; Exhibit 37; p 186. The plaintiff accepts that she did not make any contribution to the acquisition (p.88), although she later spent money on improvements, and her earnings by helping support the family were assisting the husband to repay the mortgage. She says she understood, apparently at the time of the marriage, that the parents’ interest in the home would be left to her and her husband: p.112.

12. [12]
    At the time of the marriage the plaintiff was working at the Gold Coast Hospital as a theatre nurse,^[2] having advanced to a position where she was second in charge of the theatre: p 5. In July 1982 she left that employment as a result of the pregnancy^[3] which resulted in the birth of a daughter, Peta, in March 1983. She then obtained alternative employment until two weeks before the birth, and three weeks after the birth obtained a further position, operating an allergy clinic for a practice of ear, nose and throat specialists: p 5. She remained in that employment until late 1994:^[4]  p 43. In August 1991 she also took on casual work at the Highland Medical Centre^[5], which work also came to an end in September 1994: Exhibit 13.

13. [13]
    At the time of the marriage, the husband was working as a commission agent for insurance brokers. In November 1982 he left that employment and went to work for an insurance company, but in 1984 that company closed its Gold Coast office. He then attempted to establish his own business as an independent agent, but this was not successful, and in 1985 there were serious financial problems as a result of which the plaintiff began to undertake some additional casual work: Exhibit 29 and see Exhibit 37. In July 1985 the plaintiff’s father found the husband employment as a tradesman’s assistant, but the financial problems continued, and there were disagreements over money.

14. [14]
    In September 1986 the plaintiff sought legal advice and as a result solicitors wrote on her instructions to the husband’s mother, seeking a contribution from her and her husband towards the rates, electricity and telephone costs for the premises: p 216; Exhibit 28. That letter records instructions from the plaintiff that “the current relationship between yourself, Diane and her husband, Garry, are under severe strain causing her distress and concern”. The letter contains a threat that unless matters can be resolved, the plaintiff would seriously consider a formal separation which could lead to an application in the Family Court for the property to be sold and the proceeds divided in a way which would provide some share for the plaintiff as well as the husband and his parents.^[6]  This letter indicates the marriage was by then in difficulty (p.220);  if that had not been the case before this letter was sent, it would certainly have been afterwards.^[7]

15. [15]
    In response, the solicitors for the husband made an offer that the parents would pay a share of the outgoings, and offered a lump sum to settle any claim the plaintiff might have for an interest in the property: Exhibit B to Exhibit 56. Apparently matters were resolved to the extent that the parties remained living together at that stage, although the relationship deteriorated further thereafter. The father died in 1988 (Exhibit 56), and the mother developed Alzheimer’s Disease, being cared for by the husband and the plaintiff at home for a time, although by 1992^[8] she was in a nursing home. On 4 March 1991 she signed an Enduring Power of Attorney in favour of the husband: Exhibit P to Exhibit 56. By 1991 there was conflict in the marriage, and the relationship was very tense: p 6. The plaintiff obtained a protection order against the husband in 1990: p.10. On 18 January 1993 the plaintiff obtained another protection order against the husband: Exhibit 30. The Family Court later found that they separated under one roof on 10 May 1993: Exhibit 7.

16. [16]
    On 6 March 1993 the husband signed a contract to sell the property for $350,000: Exhibit 33. The contract was subject to and conditional upon the purchaser’s obtaining approval from the Albert Shire Council for the rezoning of the property for use as a child care centre, on or before 1 June 1993 or such later date as would be accepted by the vendor. Completion was due on 1 March 1994, and the only deposit paid was the sum of $5,000, although the contract referred to a balance deposit of $30,000 payable on the date of completion. There was no real estate agent involved in the contract, and indeed the purchaser by a special condition warranted that he had not been introduced to the property by any real estate agent. The husband signed on his own behalf and also as the attorney of his mother. Following the death of her husband in 1988 she was sole owner of the other half share.

17. [17]
    On 15 March 1993 the husband’s solicitor, Mr Twohill, wrote to the plaintiff advising that the contract had been signed and enclosing a copy, and two market appraisals which were for less than the contract price, suggesting that the sale was a good one, and encouraging the plaintiff to cooperate: Exhibit 27. She was also advised that she was not required to vacate the premises at that time, and that if the contract became unconditional her husband was prepared to discuss a mutual distribution of matrimonial assets. The letter also complained of an assault on him by the plaintiff, and of difficulties with the joint custody of the child of the marriage. It appears that by then there was also a domestic violence order in place against the plaintiff. There were also allegations of stirring up the neighbours to object to the application to use the property as a child care centre, and of threats to throw his belongings out of the house. In response to this letter, the plaintiff consulted the defendants: p.80.

The Defendants

18. [18]
    At that time the first defendant was practicing as a solicitor in a sole practice, as she had been for some years: p 236. Her husband had since March 1984 practised as a barrister at Southport. He was trained in New Zealand where he was admitted in 1975 and worked as a legal practitioner until he came to Australia in 1981: p 226. He worked as an employed solicitor with a large Brisbane firm for 3 years before he went to the bar. In August 1992, for family reasons, he became a solicitor again and worked in effect as an employed solicitor for his wife (p 226, p 281), although he was described on the letterhead as a consultant. They did a range of work, including family law work: p 227, 236. Apart from the initial interview of the plaintiff by the first defendant, the second defendant had the carriage of the matter.

The plaintiff consults the defendants

19. [19]
    The plaintiff said that she was referred to the first defendant’s practice by some sexual assault people: p.75. The first contact was by way of a phone call, she said with the first defendant: p 75. The first defendant did not recall a phone call from the plaintiff before she came into the office, although she did not positively deny it: p 240. The second defendant however had some recollection that the first contact he had with the plaintiff was when she telephoned and made some preliminary enquiries, and he suggested that she should make an appointment to come and see them: p 228. He did not make a diary note of this call.

20. [20]
    It was common ground that on the first occasion the plaintiff attended the offices of the practice she spoke to the first defendant: p 6, p 27. This was on 18 March 1993: Exhibit 60. The plaintiff described this as a discussion of the matrimonial situation generally (p 75), although the note made by the first defendant refers to “general advice re property settlement”: Ex 60. The first defendant obtained some rudimentary details of the family situation at that time. There was some discussion about costs, and the first defendant said that she told the plaintiff that she would charge costs according to the Family Court scale: p 257. The plaintiff had no recollection of that (p 76), but said that she wanted to know up front what it was going to cost (p 66), and did not give evidence that costs would be charged on any other particular basis.

21. [21]
    The plaintiff said that the first defendant had said that her husband was a barrister and could represent her in the Family Court: p 6, p 76. The first defendant’s version however was that she explained that her husband had been a barrister and that he could handle the matter and appear himself in the Family Court, or the firm could brief a barrister to appear for the plaintiff, although that would cost more: p 57. The first defendant said the plaintiff agreed to the former course, and expressed some enthusiasm for saving costs: p 57. The plaintiff denied this version, and said that she was told the second defendant was a barrister and the firm would be able to deal with the family law matter, that he was a consultant and a barrister: p 76. In any case, it was decided that the second defendant would handle the matter, and arrangements were made for the plaintiff to return on a later day to see him.

22. [22]
    When the plaintiff did so, she was introduced to the second defendant by the first defendant: p 6. The plaintiff was unable to put a date on this visit except to say that it was some time before 25 May 1993; the second defendant’s note of the conference (Exhibit 58) is undated, but he conceded in cross-examination that it was possible that it took place on 7 April 1993: p 289. The plaintiff said that she was introduced to the second defendant as a barrister, and said that the second defendant had said that he was a barrister and could represent her in the Family Court: p 57. This account was denied by the first defendant (p 240) and by the second defendant: p.268. The second defendant said that he told the plaintiff that he had been a barrister for eight years, so that he had some experience of appearing in court: p 229.

Instructions for an application to the Family Court

23. [23]
    The second defendant said he went through the information required to complete a form 7 for a Family Court application. This involved filling in the details of a blank form which he had in front of him: p 229. He was told during that interview that the plaintiff suffered from Graves Disease, something which he did not at that stage know anything about: he asked and was told that it was a thyroid condition, for which she was taking medication, and the condition was under control: p.84.^[9]  He said there was some discussion about costs and the second defendant said that they would be charging in accordance with the Family Court scale of costs: p 229. The plaintiff agreed that there had been a discussion about costs during that conference, but denied that she was told that they were charged in accordance with the Family Court scale;  she said she was not aware that there was such a thing: p 78. At some point, possibly on 7 April 1993, the plaintiff paid into the first defendant’s trust account $1,000 on account of costs: p 269.

24. [24]
    During the conference there was some discussion about the matrimonial situation, and the plaintiff told the second defendant that her husband was dealing with his mother’s property and money as if it were his own, that he was her sole next-of-kin, and that she was not aware of any will that the mother had made: p 79, p 115, p 230. The second defendant said that he gave the plaintiff a blank form 17, a statement of financial circumstances, for her to take away and complete so far as she could (p 231), although the plaintiff did not recall this: p 79. The plaintiff showed the second defendant the letter which she had had the other solicitors write to her husband’s mother in 1986 (Exhibit 28): p 82, p 231. The second defendant said that during this conference he gave the plaintiff a standard mediation form which was required to be given to all Family Court clients at this stage^[10]  (p 231), but he agreed that he did not give her the client care letter recommended by the Law Society, either then or later: p 292. He said that at the time this was not a requirement of the Law Society. He said that the plaintiff was at that stage also concerned about what would happen to the proceeds of sale of the house: p 231. The second defendant’s notes of this conference (Exhibit 58)  do not throw any light on the disputed factual issues.

25. [25]
    The second defendant said that some time later the plaintiff dropped in documents containing further instructions for him: p 232, Exhibit 29. The plaintiff acknowledged that certain documents that were shown to her, setting out the list of various things she had paid for, were in her handwriting and that she would have given them to the second defendant at some stage: pp 83-4.

26. [26]
    The next conference was about one month later, although again the diary note (Exhibit 59) is undated. According to the second defendant, on this occasion he explained how the property division would work (page 232), and explained that he expected that the Family Court would in this case adopt a division of something like 50:50 between the parties: p 233. He told her that it was important that what they attempt to achieve be realistic, because by doing so, they would put costs pressure on the husband: p 235. He said that the plaintiff told him that she was at that stage not satisfied that the contract for the sale of the house was the true one: she believed that the property was worth a lot more, and therefore believed that her husband was getting some additional consideration not shown in the contract: p 234. The plaintiff agreed that she had told the second defendant that she did not trust her husband, but did not recall saying that she thought that the contract for the sale of the house was a sham. She conceded that she may have said that there was another contract at a much higher purchase price in respect of the property but claimed that she did not recall actually saying this: p 92. She expressed concern that there were things going on in respect of the property, and she was not being informed of what was going on.

27. [27]
    The plaintiff agreed that there were some discussions about how the property settlement worked, and that she told him in the course of these discussions that their daughter was to be living with her, but she denied that she was told that this fact would increase her share by about 5%: p 55. She said that the second defendant had been told that she was earning more money than her husband had been for some time, and that the property owned by the husband’s parents had been purchased before the marriage and that she had not contributed to the purchase price: p 37-8. She said that her husband was an only child and that at the time the house was purchased she understood that when the parents died “we would inherit the house”: p 89. She said that she informed the second defendant of this. However the plaintiff denied that she had been told that there would be an apportionment in the order of 50:50 of the matrimonial property, and claimed that she was told that she would receive her husband’s share of the sale price of the house, with her husband receiving his mother’s share: p. 88. She was not clear about whether that advice was given at that conference or at a later time. She said that she told the second defendant that there was a lot of fear in the house, that it was a very stressful position living with her husband, and that that became worse after her husband sold the house, and she was in fear of him: p 91.

28. [28]
    The second defendant prepared the documents for the Family Court proceeding, an application initiating proceedings (Exhibit 30),^[11] an Affidavit by the plaintiff (Exhibit 31), and a Statement of Financial Circumstances (Exhibit 32): p.242. The plaintiff denied that the second defendant had taken her through the various documents paragraph by paragraph (p 98), but it was not suggested that anything in the documents was inconsistent with the plaintiff’s instructions to him. Exhibit 32 says that it was sworn by the applicant on 11 May 1993 and her signature was witnessed by the second defendant, who then appended the description “solicitor”. The Affidavit verifying the application also says that it was sworn by the plaintiff on 11 May 1993, although this time her signature was witnessed by the first defendant. On the same page is a “declaration by solicitor” signed by the second defendant, which states that he is “the solicitor” for the applicant.

29. [29]
    The application sought a division of property, including that some of the assets received by the plaintiff be attributed to lump sum spousal maintenance pursuant to s 77A of the Family Law Act, and interim orders including an order restraining the husband from dealing with the proceeds of sale of the matrimonial home. One of the orders sought in the application was that the husband be restrained from dealing with “the sale proceeds of the matrimonial home”, and in paragraph 9.6, dealing with the facts relied on pursuant to paragraph 79(4)(e) of the Family Law Act, there is the statement: “(n)  The applicant seeks the payment to her of half the sale proceeds of the matrimonial home”. Elsewhere in paragraph 11 of the Application it is stated that the respondent (husband) and his mother own the property as tenants in common in equal shares, but after reference to the Enduring Power of Attorney and the mother’s mental state, there is the allegation that “the respondent has full power to deal with the property and to apportion the sale proceeds as he sees fit.”  The orders sought on page 3 refer to a claim for 50% of the net assets of the parties, but these other parts of the Application suggest that the plaintiff’s case was being advanced on the basis that the whole interest in the matrimonial home should be treated as an asset of the parties. The Statement of Financial Circumstances (Exhibit 32) also contains the statement: “the respondent is the sole next of kin of his mother who is aged 75 years, is mentally incompetent and who owns half the matrimonial home. The respondent deals with her estate as if it was his own”. That would appear to be consistent with the plaintiff’s instructions at that time.

30. [30]
    The Affidavit Exhibit 31 is dated 18 May 1993^[12] and was sworn by the applicant, on the face of the document before the second defendant who is described as “solicitor”: Exhibit 31. This affidavit deposes to the plaintiff having made greater financial contribution than the husband during the marriage, and having also contributed as a home maker and care giver for the family which included the husband’s mother until January 1992. She alleged the husband’s parents paid $45,000 of the purchase price of $108,000, but did not contribute to mortgage payments, or to outgoings until October 1986 when the mother began to pay one-half of the rates and telephone account. The plaintiff had paid for nearly all the improvements of the home at a cost of $15,000^[13]. She had also paid all the payments on a loan used to purchase a motor vehicle registered in joint names.

31. [31]
    The Application was filed in the Family Court on 25 May 1993; presumably the other documents were filed at the same time. A return date of 2 August 1993 was given by the court, for directions and to deal with the claim for interim relief.

32. [32]
    One of the features of the plaintiff’s evidence was that she claimed that she had always sworn documents in front of the first defendant only, and she did not ever swear any documents before the second defendant: p 97. She agreed that her signature was on Exhibit 32 (p 97), but could not particularly recall swearing that document because she signed a lot of documents: p 96. It is apparent from the documents that on a number of occasions^[14] her signature was witnessed by the second defendant when she swore documents, and indeed the second defendant said on one occasion when there was some urgency in the matter he took a document which had to be sworn to the medical centre where the plaintiff worked on a weekend so that she could swear it and he could file it in the Family Court the next day. p 277. The plaintiff denies this: p.169.^[15]  He asserted that the documents where he had signed as the witness were sworn in front of him (p 242, p 278) and the first defendant denied that she was the only one before whom documents were sworn: p 241. She did recall witnessing one document (p 238) and her signature does appear on more than one,^[16] but a minority, of the documents sworn by the plaintiff.

The husband’s response

33. [33]
    On 21 July 1993 Mr Twohill wrote to the defendants advising that he acted on behalf of the husband, and advising that the purchaser had confirmed that approval had been given for use of the property as a child care centre, so that the contract was unconditional: Exhibit 33. On 27 July 1993, Mr Twohill wrote offering to agree to place half of the husband’s interest in the proceeds of sale, that is 25% of the total sale proceeds, on trust pending the determination of the application: Exhibit 34. The second defendant said that he then contacted the plaintiff and recommended that the undertaking be accepted, and she agreed: p.243. The plaintiff did not recall this: p.101. On 2 August 1993, the husband signed a written undertaking to the court not to dispose of the whole of his one half interest in the sale proceeds until the trial: Exhibit 35. That was accepted in satisfaction of the claim for interim relief: p 243.

34. [34]
    The plaintiff said that she was present at court on 2 August (p.104) although the second defendant did not recall her being there: p.243. However, she did not recall consent orders being made (p.104) or having seen the written undertaking (Exhibit 35): p.105. I accept that the plaintiff did attend the Family Court on 2 August, when the undertaking was provided. As well, directions were made for the conduct of the proceeding, including for a conciliation conference to be held at the Coolangatta Court House before a registrar on 27 October 1993: p.243;  p.104;  Exhibit 36.

35. [35]
    The husband’s answer and cross-application (Exhibit 37), affidavit (Exhibit 38) and statement of financial circumstances (Exhibit 39) were sworn on 2 August 1993, filed in the Family Court on 10 August 1993 and served under cover of a letter dated 11 August 1993: Exhibit 64. In the cross-application the husband offered the plaintiff one-half of his one-half share of the proceeds of sale of the property, after payment of costs of sale and the discharge of the mortgage. He also proposed that she retain the motor vehicle and any furniture other than the furniture the husband had in his possession at the date of commencement of cohabitation, and her superannuation and life insurance entitlements, and that he retain the furniture he then had and his superannuation and life insurance entitlements. The answer set out the history of the acquisition of the property as I have noted already, alleged that the husband had made all the loan repayments, and alleged that his parents had contributed $4,000 towards substantial improvements to the property.

36. [36]
    The husband said his wages were paid into a joint account from which the mortgage payments were made, whereas money received by the plaintiff was retained by her. The husband’s affidavit said that the plaintiff had stopped making payments on the loan for the motor vehicle in April 1993, that both parties had contributed as home makers, and that, since he signed the contract to sell the property, the plaintiff had voiced her disapproval of his looking after their daughter while she was at work. He said that as his mother’s health declined she would attend day care each day, and received meals-on-wheels, and that he generally attended to his mother; he said that the plaintiff and his mother did not ever get on well together: Exhibit 38 para 14. He said that the plaintiff’s assistance to his insurance agency work had been minimal. He said that there were domestic violence orders both ways, but denied that there had been any domestic violence towards the plaintiff in the past, and said that the order against him was made by consent without admission: para 26.

37. [37]
    On 16 August 1993 the first defendant sent an account for $3,503.70 for fees incurred to the plaintiff: p 274; Exhibit 5.^[17]  On 18 August 1993 the husband’s solicitor sent to the second defendant a fax alleging that on 15 August the plaintiff had assaulted the husband at the property: Exhibit 36. The letter also accused the plaintiff of taking the husband’s tape recorder, of interfering with the husband’s relationship with their daughter, and of continually harassing and abusing the husband. She is also said to have threatened not to leave the premises until she had money in her bank account, which the husband thought would jeopardise the sale. Accordingly, the letter contained a demand that the plaintiff vacate the premises by 27 August 1993 otherwise an application would be made to the Family Court.

38. [38]
    On 19 August 1993 the second defendant discussed this letter with the plaintiff, and was told that actually the husband had assaulted the plaintiff, who had attempted to fight him off without success: p.245. It does not appear that there was a specific reply to the letter, or that anything further was done at that stage by the husband to obtain possession of the house.

39. [39]
    On 28 August 1993 the second defendant had a conference with the plaintiff for the purpose of going through the husband’s documents, and preparing a response to them: p.245.^[18]  This took one hour (Exhibit 63) and involved a certain amount of drafting of documents, although they were presumably not finalised that day, because they were executed on 8 September 1993.^[19]  There was a reply and answer (Exhibit 40) and a further affidavit: Exhibit 41. The plaintiff there sought a 50:50 division of the sale proceeds of the property, but without first attributing half of them to the husband’s mother. That was seeking in effect to have her interest treated as his property. She also sought orders that the total of the parties’ superannuation and life insurance entitlements be divided between them equally.

40. [40]
    The plaintiff disputed some of the husband’s allegations about the extent to which he contributed financially and in respect of care, and alleged that the marriage had detrimentally affected her earning capacity because she had relinquished her position as a theatre sister at the Gold Coast Hospital, and was unable to maintain her superannuation contributions: Exhibit 40. She alleged that the husband had the sole use of a vehicle registered in his mother’s name and purchased with her money in January 1993. The affidavit also alleged that the husband was his mother’s only next-of-kin and heir so that he would inherit her half interest in the property on her death. Later in the affidavit this was repeated, together with an allegation (supported by detailed particulars) that the husband was already using his mother’s money as if it was his own, by withdrawing various funds for his own use, or to spend on the children. The affidavit exhibited a copy of the letter of 18 August 1993, and she admitted that she did not wish to leave the property prior to completion, and alleged that she had been assaulted by the husband.

The conciliation conference

41. [41]
    A conciliation conference was held before a registrar on 27 October 1993. About two weeks earlier the husband’s affidavit of documents had been served, and it made no reference to any will of his mother: p 247. The plaintiff said that she and the second defendant attended the conference, and that prior to the conference there was just general talk, although as they walked in the door he handed her a letter concerning the future costs of the proceeding: p 8, Exhibit 18. She denied that the second defendant had announced his appearance at the conference as a solicitor: p.116. The matter was not resolved at the conference: p 9. She did not recall a settlement offer being made at the conference: p 113. Indeed she did not recall there being any negotiations. She said she was not aware that the second defendant and Mr Twohill had had a conversation with regard to an offer that was to be made: p 59. She recalled that there was some conversation about the husband’s mother’s will and the question of inheritance, but that there was no will produced: p 110. She said: “We had to see the will. At some time we had to have that will disclosed to us.”  This was because she had earlier been led to believe that they would inherit the house, and she had learnt from experience that her husband was a liar: p 110.  Her husband was saying that he was not a beneficiary under his mother’s will, whereas the plaintiff was saying that he was, so the matter had to be clarified: p 111. She could not recall whether there was some discussion about whether $350,000 was the real sale price of the property, but she did not say that it did not happen: p 111. Ultimately the registrar said that the matter was not going to settle, and gave directions appropriate for it to proceed to trial: p 113.

42. [42]
    The second defendant said that prior to the conciliation conference he had a conference with the plaintiff and told her how the conciliation conference would work, and gave her the letter Exhibit 18 advising her what costs would be incurred if the matter proceeded further: p.247. That was required by the Family Court at the time, and the letter had to be produced to the registrar during the conference in order to demonstrate that it had been provided to the client: p.248. No doubt this was a means used by the Family Court to encourage realistic settlements prior to trial. During the conciliation conference the second defendant raised those matters then alleged by the plaintiff, in particular that the husband was his mother’s sole next-of-kin and he was already spending her money so that her property should be taken into account as a resource available to him: p 248. He said that at that stage the husband’s solicitors did not seek specifically to rely on the will which was later produced, but merely said, somewhat obliquely, that it should not be assumed that the husband would inherit the mother’s property: p 249. There was discussion of what the figures would be with and without a will. He recalled that the registrar had urged the husband and the solicitor to make discovery of any will that they had, and then made directions for the matter to go to a hearing: p 249. He did not recall if an offer was actually made at the conference on behalf of the husband: p 249. By the time of the conference whether there was a will and what it said had become the main focus of the dispute: p 82.

43. [43]
    After the conference he said that he told the plaintiff that he expected a formal offer of settlement would shortly be made on behalf of the husband, and that any such offer would have to be considered carefully, because if it were not accepted and the matter went to trial and the plaintiff did not do better than the offer she would be at risk of paying his costs as well as her own: p 249. He said that at least by this stage he had warned the plaintiff of the cost implications of not bettering an offer: p.310. The plaintiff denied that after the conference he told her that he expected that there would be a formal offer made soon: p 113. She also denied that he warned her of the cost implications if the offer was not accepted and not bettered: p 114.

44. [44]
    The second defendant later made a typed diary note to summarise the conference, a copy of which is part of Exhibit 9. He said that sometimes he would type up such a note because his handwriting was difficult to read.^[20]  It is certainly difficult to read: see for example Exhibit 62, which I had the second defendant read into the transcript at p 245. In this case I suspect the main purpose of the note was to record in detail the directions given by the registrar at the conference, so it was important that it be legible. However, the note confirms the second defendant’s evidence as to the attitude of the husband at the conference, and does not record that any offer was made on behalf of the husband. The plaintiff said that when she collected the file from the defendants it did not include the typed diary notes: p.24. In view of this I do not attach too much significance to these documents, as there is an issue of credit which may cast doubt on whether they really were contemporaneous.

45. [45]
    According to the second defendant the following day (28 October) the plaintiff rang him and complained that in conversation with her the husband had referred to the second defendant as a “two bit barrister”: p 250. He described her as “up in arms”, and he told her that the husband was just trying to unsettle her, but that if she wanted someone else to appear for her at the trial he would engage a barrister, although that would add about $3,000 to the estimate of costs. She said that she wanted him to appear for her. She also said she had found a cheque butt where she had paid $75 to a firm of solicitors in respect of an occasion when she had consulted Mr Twohill who was now acting for her husband, and she wanted to recover her file from that firm. She also said that the property was back on the market for $1.6 million, and that she knew that her husband was his mother’s beneficiary, and that any will he produced to the contrary would be a forgery. He was already spending his mother’s money as if it was his own. The second defendant made a diary note of the conversation, which he says he made the same day, also a typed note: p 250, Exhibit 9. The note records among other things: “She said she did not want to settle. I told her I would have to tell her of any settlement offers.”

46. [46]
    When cross-examined about this conversation the plaintiff said that she had told the second defendant earlier than this, at her initial consultation with him, that Mr Twohill had earlier given her matrimonial advice, although she did at a later date go through the cheque book and find confirmation: p 114. She conceded that it was her instructions that her husband was the sole beneficiary, but she could not recall saying that to him on that date: p 115. Indeed she did not recall telephoning him at all on the day after the conference. She did not recall saying that the property was back on the market for $1.6 million, or specifically saying at that time that her husband was a liar, but she may well have said that at some stage, because he was: p.115. She denied that she said on 28 October that she did not want to settle the matter, or that he said that he would have to tell her of any settlement offer that was made: p 115. She agreed that in October 1993 the husband was harassing her at home, telling her that the second defendant was a two bit barrister, and that she told the second defendant about that, and that the second defendant had said that the husband was just trying to unsettle her, but could not say that that occurred on that day; she said she dismissed this because she had confidence in the second defendant: p 116. She denied that the second defendant offered to engage a barrister if she wished: p 116.

The husband’s settlement offer

47. [47]
    On 3 November 1993, Mr Twohill made on behalf of the husband a formal offer to settle the matter on the basis that on settlement of the sale of the property the plaintiff receive $90,000, that each party retain the furniture brought into the marriage by that party and any bank accounts in their respective names and their superannuation entitlements, and that the plaintiff retain the motor vehicle in her possession. A motor vehicle had been purchased with money borrowed on security of the matrimonial home, but the plaintiff had been making payments on that loan, and had retained possession of the vehicle. The offer was open for acceptance for seven days, and was not accepted within that time.

48. [48]
    The second defendant received the offer on 3 or 4 November (p 283) and told the plaintiff of the offer: p 249. He said that she was not interested in accepting it. He did not advise her to accept it; indeed he advised her that, because no will had been discovered, she should not accept it, on the basis that she could successfully argue that in those circumstances, in the absence of a will, her estate was a resource available to the husband and therefore should be taken into account: p 251. The plaintiff said that she was not informed that there had been an offer: p 9. She denied that the second defendant had telephoned her to tell her of the making of the offer, or that he had given her any advice in relation to the offer: p.117. She did not say that if she had been told of the offer she would have accepted it, or that she would have accepted it if advised to do so by the second defendant.

49. [49]
    On a later date in November Mr Twohill telephoned to enquire why the offer had not been accepted: p 251. The second defendant said that this was because his client was proceeding on the basis that the husband would inherit his mother’s property, no will having been discovered. Mr Twohill then said there was a will, and said he would see if he could get instructions to disclose it to them.

50. [50]
    For that purpose a further conference was organised, to take place on 7 December 1993. This was held at the Southport Courthouse, and the plaintiff and second defendant were both present. The plaintiff had been told about the conference, and had been told that its purpose was for the will to be produced: p 117-8. She maintained, however, that a will was not produced at that conference, and did not recall a photocopy of a will being produced either: p 118. Her recollection was that there was a lot of conflict at that meeting and that it was not a very long meeting, but she did not suggest that anything else occurred:^[21]  p 9. She said that after the meeting as they walked across the road there was a discussion about the $90,000 and the second defendant said to her: “I can get you more money than that”: p 119. She maintained that he did not say that there was an offer, but he talked about the sum of $90,000: p.10. It is difficult to reconcile a reference to $90,000 as something she was told the second defendant could do better than with her assertion that she had not been told of the offer to settle at that amount.

51. [51]
    The second defendant said^[22] that at the conference a copy was produced of a will leaving everything to the grandson: p 251. He then had a private discussion with the plaintiff and was told that she would not accept anything less than the production of the original will, because she did not accept that this was a photocopy of a valid will: p 251-2. The second defendant conveyed that instruction to Mr Twohill, who replied that the husband was not in a position to produce it because he held it on behalf of his mother. The second defendant said that after the conference as they were returning to his office the plaintiff said that she had some recollection that in fact someone had told her that her mother-in-law had made a will in about 1986 and left the estate to her grandson: p 252. He said he told her that if there was a will in favour of the grandson that would change the whole situation, and in those circumstances the offer that the husband had made would be a good basis for settling the matter;  he said that her instructions remained that she would not settle unless and until the original will was produced, and at no time was the original will ever produced: p 252, p 310. I find that a copy of the will was produced on this occasion. Apart from my general preference for the evidence of the second defendant, as explained below, that was the whole purpose of this conference and I cannot believe that it would have been arranged and held but a copy of the will not produced. The husband had no possible reason not to produce it then.

Preparation for trial

52. [52]
    On 10 November 1993 the plaintiff executed an affidavit of documents which had been prepared by the second defendant: Exhibit 53. The plaintiff agreed that she signed the affidavit of documents but maintained that occurred in front of the first defendant: p 154. It is apparent from the document that her signature was witnessed by the second defendant. The plaintiff at the trial produced a photograph showing a bruise to her left upper thigh: Exhibit 26. She said this was taken in January 1994 and was the result of her husband having kicked her: p 73. That does provide support for her account of domestic violence at that time.

53. [53]
    On 4 February 1994 the plaintiff had a two hour conference with the second defendant for the purpose of giving instructions for her affidavit of evidence in chief: Exhibit 65, p 252. The document was subsequently prepared by the second defendant, sworn by the plaintiff on 14 February 1993^[23] before the second defendant, and filed in the Family Court the following day: Exhibit 42. The plaintiff recognised her signature on the document, but did not recall swearing it in front of the second defendant, and reiterated that she swore the documents in front of the first defendant: p 122. The affidavit repeated the claim to half of the net sale proceeds of the property, and the assertion that the husband was the mother’s heir and was using her money as his own. She also alleged that prior to the marriage she was told by the husband that his parents’ interest in the property was limited to the amount of their contribution of $45,000, and that in 1986 she was assured by him that the sale proceeds of the property would be distributed in accordance with the owners’ respective contributions. The affidavit exhibited a copy of the letter Exhibit 28, the contract Exhibit 33, and a statement of financial details executed by the husband in 1990.

54. [54]
    The plaintiff said in cross-examination that there were aspects of that affidavit which were not correct. She said that there was not sufficient evidence directed to the abusive relationship she was in, her husband’s alcoholism and the abuse she had received from him, there was no reference to protection orders, there were no financial statements reflecting what had been earned during the marriage to give a comparison of the earnings of the parties, there was no mention of the fact that her superannuation went down when she left the hospital, whereas her husband’s superannuation went up when he obtained employment in 1985, there was no medical report concerning her Graves Disease or to show that his mother had Alzheimer’s Disease, there was no list of improvements which she had paid for the property, there were no bank statements to prove that she made the payments on the car, and there was no mention of her husband having an enduring power of attorney and having control of the mother’s finances: p 219-20. When it was pointed out that there was reference to the power of attorney and control of the mother’s finances in paragraph 23, her complaint became that there were no documents supporting that allegation in the affidavit.

55. [55]
    That was true but irrelevant, as the point was not contentious; indeed a copy of the power of attorney was exhibited to the husband’s affidavit. In relation to the other matters, income statements were put before the court ultimately, there was evidence before the court in relation to respective superannuation entitlements which showed that the husband’s was larger, the medical conditions of the plaintiff and the husband’s mother were not controversial, the evidence as to financial contributions to improvements was in another affidavit and was allowed to be read so that any deficiency in this affidavit in that respect was overcome at the trial in the Family Court, and the proposition that the plaintiff had made most of the payments on the car was not controversial.^[24]  Her complaints about the content of the affidavit are therefore without substance. The significant feature of the affidavit is that it ignores the will, a copy of which I find had been produced on 7 December. The plaintiff made no complaint even at the trial about that aspect of the affidavit, which suggests that the statements in Exhibit 42, which ignore the existence of the will, were consistent with instructions at the time that until they saw the original will she was not satisfied that the document her husband was relying on was not a forgery. She conceded that she did not make any complaint to the second defendant at the time about any of the contents of Exhibit 42: p 216.

56. [56]
    The contract for the sale of the property was due to settle on 1 March 1994. The plaintiff ought to have left the premises prior to that date, but did not do so.^[25]  The purchaser’s solicitors complained on 2 March that she was still there, and that she appeared to be removing furniture and fittings, which was contrary to the contract: Exhibit 43. The husband’s solicitors then complained of this to the second defendant, and advised that the purchaser was going to hold $5,000 to cover any damage done, and that reimbursement of any amount lost because of damage done would be sought from the plaintiff. They demanded the plaintiff vacate the premises prior to 3.30pm on 2 March. The plaintiff did move out that day, and settlement proceeded. She came to see the second defendant on 3 March by which time she had moved out: p.253, Exhibit 66. The second defendant wrote that day to Mr Twohill concerning custody of and access to the daughter, Peta: Exhibit 67. Mr Twohill replied on 8 March in relation to Peta: Exhibit 71. The parties were by then in conflict on this topic also.

57. [57]
    The husband’s solicitor under cover of a letter of 17 March 1994 (Exhibit 69) served an amended application (Exhibit 72), an affidavit of evidence in chief and in reply to the plaintiff’s affidavit of evidence in chief (Exhibit 56), a supplementary affidavit of documents (Exhibit 75) and a notice to produce.^[26]  The letter also sought full disclosure of the plaintiff’s superannuation entitlements, and made an allegation that she had not disclosed entitlements in respect of her employment at the Gold Coast Hospital or her subsequent employment. The letter also sought evidence of her entitlement in relation to an insurance policy.^[27]  The amended application sought a higher proportion (55%) of the husband’s half interest in the net sale proceeds of the property for himself, and that the plaintiff’s share bear any amount which had to be paid to the purchaser because of damage done to the property by the plaintiff, and any additional costs payable by the husband because of the delay in settlement and the dispute about damage. The supplementary affidavit of documents referred to the conveyancing file on the sale of the property, and various other documents including the contract for the purchase of the property in 1981, but still did not disclose either the will or a copy of the will.

58. [58]
    In his affidavit of evidence the husband disputed the plaintiff’s evidence that there was an arrangement in relation to the property when it was purchased, or when they married, or that he said anything to that effect to her; he said he told her that he had an arrangement with his parents under which he would be responsible for the outgoings of the property: Exhibit 56, para 5. He did admit that in about 1986 he told the plaintiff that the ownership was in proportion to the initial contribution by his parents, meaning by this that it was approximately 50%: para 24. He denied that the mother’s interest in the property was held on trust for him or anyone else: para 44. He disputed in some detail the plaintiff’s allegations that he paid none of the household expenses. He denied that he was using his mother’s money as his own, and said that money from her account was used for his mother’s expenses or for the children: para 26. He alleged that both the boys left the property prior to completion of the sale because of the stress generated by the plaintiff within the home (para 27) and exhibited statutory declarations made by them in support of applications under the Students Assistance Act: Exhibits D and E to Exhibit 56. He denied that he was getting anything for the property other than the consideration stated in the contract. He alleged that for five years he had been subjected to constant outbreaks of physical and verbal abuse from the plaintiff: para 28. He said he had been told by their daughter, Peta, that she was willing to come and live with him once he had obtained a home of his own: para 28. He disclosed superannuation benefits under the Queensland Electricity Supply Industry Superannuation Scheme of $11,564.96 as at 1 July 1993, and a superannuation policy with Friends Provident which had an estimated surrender value of less than $10,000: para 34.^[28]

59. [59]
    On 18 March 1994 there was a further letter from Mr Twohill concerning access to Peta, alleging that the plaintiff was denying the husband reasonable access: Exhibit 70. On 24 March 1994 the plaintiff had a conference with the second defendant concerning the husband’s material, and those two letters: Exhibit 68, p.254. The plaintiff did not appear to recall that conference: p.128. Instructions were taken for an affidavit in reply, which was prepared by the second defendant and sworn by the plaintiff on 6 April 1994, before the second defendant: Exhibit 44. Again when shown the affidavit the plaintiff said that she signed the documents in front of the first defendant: p 128. In the affidavit the plaintiff alleged that the items she had removed from the property were items that belonged to her, which the husband had no right to sell;  if any of them were fixtures, that was not correct. She also alleged that the husband had taken a number of items of property which belonged to her, which were listed in the affidavit. On the same day the plaintiff swore (again before the second defendant) an affidavit verifying an updated statement of her financial circumstances: Exhibit 74. This referred to three superannuation policies, which are said to have withdrawal benefits (as at various dates between June 1992 and December 1993) totalling $5,663.51.

60. [60]
    On 5 April 1994 there was a further conference between the plaintiff and the second defendant: p 255. He said that the purpose of the conference was to explain how the trial would proceed. He told her that she would give evidence, he would ask her some brief questions and then she would be cross-examined by the husband’s barrister and that he would have the opportunity to ask some further questions at the conclusion, and then the husband would be subject to the same process, then when it was completed he would make submissions, the barrister for the husband would make submissions, and he expected that a judgment would be delivered: p 256. He produced a diary with a note of the appointment with the plaintiff at 11.30am that day.^[29]  The plaintiff did not recall this meeting: p 128. She later said that the second defendant did not explain at all to her about what was going to happen: p 151. What he claimed to have told her is what anyone would have expected to occur, although as discussed below in the event the trial proceeded differently.

61. [61]
    On 7 April 1994 a list of the documents the plaintiff intended to rely on at the trial was filed in the Family Court in accordance with the registrar’s directions: Exhibit 77. A similar document on behalf of the husband was dated 8 April 1994, and was presumably filed that day: Exhibit 78. The husband also swore an updated statement of financial circumstances on 7 April 1994 (Exhibit 73). Inspection of documents occurred on 7 April 1994: p 256, Exhibit 81. The second defendant prepared a chronology (Exhibit 76) and a similar document was prepared by the husband’s solicitor: Exhibit 79.

62. [62]
    The application was set down for hearing in the Family Court at Brisbane on 11 and 12 April 1994. It was not reached on 11 April, although the parties attended the court: p 13, p 257. The plaintiff was accompanied by a friend and supporter, Ms Page: p 175. On 12 April the matter came on for hearing before Judicial Registrar Jordan, as he then was.^[30]  The plaintiff had arranged to meet the second defendant at the coffee shop on the ground floor of the court building, and came with Ms Page. The plaintiff said that he just paced up and down: p 13. He appeared agitated and did not want to talk: p 14. Ms Page confirmed that nothing was really discussed at that time: p 176. The plaintiff said that when it was time to go in he told Ms Page that she could not come into the courtroom, and when they went inside he told her (the plaintiff) to sit there and shut up and he would do all the talking: p 14. That was essentially confirmed by Ms Page: p 176. The second defendant agreed that he said that Ms Page had to stay outside, because at the time he believed that she was not allowed to come into the Family Court, although in fact by 1994 the Family Court did sit in open court: p 291. He denied that he told the plaintiff to go into court and to shut up, but he agreed that before the hearing he was tense and said the plaintiff was also: p 291. The plaintiff said she was terrified in the courtroom because she was the only female there: p 14.

The hearing on 12 April 1994

63. [63]
    The matter went all day. The plaintiff said that it was not the judicial registrar who was in control of the court on this occasion, but the husband’s barrister: p 14. What occurred on that day appears from the transcript of the hearing, which is in evidence: Ex 54. The hearing opened with appearances being announced, and it was said by the second defendant that there were some objections to each side’s material, and that the part objected to in the husband’s evidence in chief was not being pursued. The second defendant read his material which included a paragraph from an affidavit provided in an interlocutory proceeding, something which was ordinarily not done in the Family Court at the time, and counsel for the husband objected. After hearing argument, the judicial registrar agreed to allow the second defendant to rely on the paragraph in the earlier affidavit he sought to rely on, notwithstanding this failure to comply with the rules: p 5 of Exhibit 54.

64. [64]
    Counsel for the husband read his material, and there was some discussion about the witnesses who would be called, and the length of the trial. The judicial registrar expressed the view that it was largely a one issue case, as to what property could be taken into account, and wondered whether it would be very productive to spend much time on the question of the extent of the contribution of the respective parties during the marriage: p 7. Counsel for the husband submitted that the property of the mother was not a resource of the husband as a matter of law, and pointed out that the mother’s estate had not been left to the husband: p 7. At p 8 the judicial registrar suggested that he could handle the argument as to what assets were involved on the material, and summarised the matter by saying that the husband made a significant capital contribution to the acquisition, and the wife asserted a marginally heavier load on her from time to time, so that perhaps they started to balance out. Counsel for the husband said that it was not accepted that the wife had made a greater contribution during the marriage, and at p 9 questioned the reference to maintenance. The second defendant made it clear that what was sought was some allowance under s 77A.

65. [65]
    At p 10 the second defendant explained the plaintiff’s case, that the husband was effectively the beneficiary of his mother’s estate, that he had a power of attorney and was using her money as if it were his own, and that this had been asserted twice in the material and had never been contradicted on oath: p 10. He asked the court to take into account the husband’s beneficial entitlement to the mother’s estate, although accepting that that could not be directly the subject of an order. For this reason the wife was seeking far greater than 50% of the husband’s share of the proceeds of sale. At that point the registrar said that he wanted the opportunity to complete reading the material, and after counsel for the husband agreed to some of the husband’s material which had been objected to being omitted, the court adjourned for a short time.

66. [66]
    After the adjournment the judicial registrar sought to identify the relevant assets for division. The second defendant sought to include items removed from the home by the husband, and superannuation benefits. The judicial registrar pointed out the latter were not assets, and asked what the position was. As a result, two documents concerning superannuation entitlements were tendered and made exhibits.^[31]  There was then some discussion about what the material said about the position of the husband’s mother’s estate. The plaintiff’s earlier affidavits had contained assertions that the husband was the beneficiary of his mother’s estate. There was some debate about whether the affidavit in reply to the husband’s affidavit of evidence in chief had properly incorporated matters stated in an earlier affidavit made by the plaintiff. That ultimately was resolved by the judicial registrar deciding not to admit the earlier affidavit, unless it became relevant to determine when this allegation had been made on behalf of the plaintiff: p 20. There was then some debate about the effect of the husband’s material in response. There was an indirect denial in para 40 which the judicial registrar regarded as sufficiently clear.

67. [67]
    Counsel for the husband foreshadowed that he would be seeking to tender a copy of the mother’s will, and the second defendant pointed out that there had never been any will discovered: p 21. The judicial registrar then pointed out that so long as the mother was alive she was free to do what she liked with her property, and could leave it to the grandson, or deal with it in some other way, as she wished, and this was not something which could be redressed in those proceedings. The judicial registrar then said that the wife’s claim was therefore limited to 50% of the husband’s share of the proceeds of sale subject to adjustments for furniture and superannuation: p 22. The second defendant sought a short adjournment to take instructions, and this was granted with the comment that in respect of this issue the judicial registrar did not have any room to manoeuvre.

68. [68]
    After the adjournment, the second defendant said he had taken instructions and that the applicant did not persist with the allegation that the husband was entitled to his mother’s estate: p 22. He then sought leave to amend the application to seek 60% of the matrimonial pool, an application which was opposed by counsel for the husband, but which was allowed by the judicial registrar: p 24. The second defendant then submitted that there was still some live issue between the parties as to the respective contributions during the marriage, and the judicial registrar made some comments by which he encouraged the parties not to engage in cross-examination. After a short adjournment for the representatives to confer, it was announced that there would be no cross-examination. It seems to me that the judicial registrar made it quite clear that cross-examination was not going to assist him, saying at p 25 “I cannot identify a matter in issue any more that requires [cross-examination]”.

69. [69]
    There were then a series of objections to the plaintiff’s material. Counsel for the husband objected to the plaintiff’s statement as to the value of certain chattels, on the ground that she was not qualified as an expert to give opinion evidence, and the judicial registrar accepted that it was not opinion evidence but said that the plaintiff was still entitled to give an estimate. There were then some other objections taken; of these six were successful, two being unopposed, three were unsuccessful, one was partly successful, and one was reserved. Two others were dealt with consistently with earlier rulings.

70. [70]
    There was then a schedule tendered by consent setting out the income from taxation returns of the parties: p 33. A copy of this document became Exhibit 83 before me: it has on it a set of different figures by the wife which are in the handwriting of the second defendant, and must have been also before the judicial registrar, as this document was a copy of one obtained by the plaintiff from the Family Court Registry: p 327-8. Counsel for the husband then tendered a copy of his tax returns for 1984-85, a copy of the contract of sale of the former matrimonial home dated 6 March 1993, and a letter from the Queensland Electricity Industry Superannuation Board dealing with the husband’s superannuation entitlement.

71. [71]
    Counsel for the husband then foreshadowed that he would be seeking an order that certain chattels which he alleged had been taken by the plaintiff but in fact belonged to the husband’s mother be returned to the husband, and the second defendant said that he still wanted to cross-examine the husband in relation to the dispute about chattels. The judicial registrar indicated a strong preference not to become involved in what he described (p 35) as the “pots and pans of these cases” and encouraged the parties to resolve the matter during the lunch adjournment which he then took. After lunch it emerged that there was still some conflict about the chattels, but after further argument the husband conceded certain items claimed by the wife, and the matter actually in dispute came down to three items claimed by the husband, in respect of which counsel for the husband said he would not cross-examine the wife, but merely make submissions, a course which the judicial registrar appeared to approve: p 39. It followed that it was unnecessary for any oral evidence to be taken, and the matter proceeded to submissions.

72. [72]
    The second defendant addressed first. He submitted that it should be assumed that the custody of the daughter would remain with the plaintiff, who had custody and whose custody had been undisputed until quite recently, and suggested that the dispute was tactical. He emphasised that the plaintiff had been working hard throughout the marriage, commonly having two jobs, and that she had left significant employment because of her pregnancy. He submitted that she had made a greater financial contribution to the household and in recent years her income had exceeded his. Although the schedule Exhibit 1 in the Family Court (Exhibit 83 before me) showed the husband having greater income, that was only until June 1990. By reference to the updated statement of financial circumstances, the wife’s income was now substantially greater than the husband’s: p 41.

73. [73]
    He referred to the assistance the plaintiff had provided in caring for the husband’s parents, and noted that the husband’s assertion, that there was an agreement that he would pay all the outlays in connection with the house, was inconsistent with the position adopted in response to the solicitor’s letter in 1986. As well the agreement was not mentioned in the letter from the husband’s mother at about that time. He then referred to the amended cross-application in relation to damage to the property, and submitted that the figure of $5,000 had just been “plucked out of the ether” and there had been no quantified claim made by the purchaser. There was also no proper itemisation of the figure claimed for additional professional costs by the husband.

74. [74]
    He submitted that in view of the extent of the wife’s contributions and her likely retention of custody of the child an apportionment in her favour of 60% was justified. He also asked that the superannuation entitlements be divided equally, noting that the husband’s superannuation entitlement had accrued during the marriage, and there were some brief submissions in relation to chattels. He also referred to the issue of domestic violence, and submitted that that should be treated as a neutral issue; he appears at that point to have been concentrating on countering some of the allegations in the husband’s material that there had been domestic violence shown by the plaintiff.

75. [75]
    Counsel for the husband submitted there was no evidence that his client had a motor vehicle, and that any question of domestic violence was irrelevant to the issues which arose in that application. His essential submission was that there had been a substantial capital contribution at the beginning by the husband which had not been matched by the wife, and that they had both been directly and indirectly contributing to the repayments and other costs thereafter, and the marriage was not of such a length as to dissipate the effect of the initial disparity of contributions. He submitted that it should not be assumed the daughter would be remaining with the husband. He went through various factors referred to in the Act but only in a negative sense, submitting that they did not impact on the current situation, and made some submissions in support of the additional orders sought in the husband’s amended application, and in relation to the chattels.

76. [76]
    It was apparent to me from the transcript Exhibit 54, and it should be apparent from this analysis, that the husband’s barrister did not have things all his own way during the trial, and the way in which matters proceeded was very much under the control of the judicial registrar. The plaintiff’s impression to the contrary (p 14) was therefore inaccurate. That is a matter relevant to the reliability of her evidence. It is also apparent that the various relevant parts of the plaintiff’s case were drawn to the attention of the judicial registrar.

Judgment of the Judicial Registrar

77. [77]
    Judgment was given the same day, with ex tempore reasons being delivered: Exhibit 7. The judicial registrar dealt with the history of the marriage, and noted that at the commencement of the marriage the wife had some furniture and a motor vehicle of modest value and some limited cash, whereas the husband had some furniture and some limited cash and equity in two properties valued by him at $40,000. He referred to the acquisition of the property, and found that the loan repayments were made from the joint resources of the parties. He noted that the plaintiff took the view that the husband’s real entitlement to the proceeds of sale was in excess of his legal title, but was of the opinion that on the evidence before the court the mother had a legal and beneficial entitlement which was reflected in her formal legal title. The judicial registrar did not take into account in any way the mother’s interest in the proceeds of sale, and noted that the second defendant had ultimately not pressed the point. It seems clear from his remarks that it would not have assisted the plaintiff if the point had been pressed.

78. [78]
    In relation to the furniture his assessment overall was that the husband had perhaps received a more significant portion in terms of the value of the furniture than the wife, but he did not propose otherwise to bring directly into account the furniture currently in the possession of each of the parties. He noted the disparity in the notional value of the superannuation entitlements of the husband ($12,651) and the plaintiff ($7,341) which he treated as a financial resource in the hands of the parties. He said he took into account this disparity when considering any adjustments to be made on account of property settlement and the section 75(2) factors. Accordingly, the property that was treated as matrimonial property to be distributed was limited to the net proceeds of sale in possession of the husband which were rounded up to $160,000, his life insurance policy valued at $4,000, and the motor vehicle used by the plaintiff valued at $8,500, providing an asset pool of $172,500: p 8.

79. [79]
    He said he largely accepted the second defendant’s submission that because of the length of the marriage, 11 years, the significance of the husband’s initial capital contribution should be diminished, particularly because of the very industrious efforts made by the wife during the marriage. He accepted that the plaintiff had applied herself vigorously to endeavours designed to benefit the family, that she undertook additional work to supplement the family income, and that she provided some assistance with care for the husband’s parents, and said these factors were reflected in the balance of the distribution. He accepted that the husband also worked hard throughout the marriage. He then considered the possibilities of a claim being made by the purchaser of the property in relation to damage supposedly done by the plaintiff, and noted that the limit of the husband’s loss would appear to be $2,500 (which may have been optimistic) and decided against making the order sought by the husband; he would require the husband to carry the risk but take that into account in the adjustment between the parties. He then dealt with the dispute in relation to the chattels. Ultimately he only had to decide about three items, and in respect of those he found for the husband.

80. [80]
    Dealing with the second defendant’s argument about the significance of the plaintiff’s custody of the daughter, he concluded that the issue of custody was in dispute and because that had not been determined he had to proceed on the basis that either parent could ultimately be her custodian; therefore he should not make an adjustment either way on that account.^[32]  Ultimately the judicial registrar considered that, taking into account the adjustments he thought appropriate and the disparity in the initial capital contributions, the proposal of the husband (other than the additional orders sought in the amended application of the husband), that the plaintiff receive 45% of the husband’s interest in the sale proceeds of the property and the Falcon motor vehicle, was reasonable. That gave the plaintiff approximately 47% of the asset pool.

81. [81]
    There was then, however, a further adjustment in favour of the wife of $1,000, which reflected the fact that that asset pool had been arrived at without regard to the $5,000 retained by the purchaser on settlement, notwithstanding that the husband was to be left with the risk of that claim being made. To allow for this an extra $1,000 was added to the entitlement of the plaintiff; in effect that limited her liability in respect of any additional costs and liability to which the husband had been exposed to $1,500, and fixed it at that sum. If the $5,000 retained by the purchaser had been treated as part of the sale proceeds, the husband’s share of the net sale proceeds would have been increased by $2,500, of which 45% is $1,125. Accordingly, had that deduction not been made by the purchaser, and the plaintiff had still received 45% of the net sale proceeds, she would have received only $125 more than she did under the order as adjusted by the judicial registrar.

82. [82]
    Formal orders were also made in relation to the chattels and other property. He then dealt with the issue of costs. The argument in relation to costs was not transcribed and there is no evidence of it before me. He concluded that the open offer made on 3 November 1993 was a reasonable one, and that the position adopted by the husband in his application was a proper one having regard to the evidence and the provision of the Family Law Act. It is evident from the reasons that the second defendant argued that the matter had been complicated by the joint ownership between the husband and his parents, and that there had been some issue about the nature of the entitlement of the husband to the property. The second defendant was not in a position to argue that, once the will had been disclosed, attempts had been made by the plaintiff to settle the matter in accordance with the earlier offer. Had that been the situation, the fact that the copy of the will was not produced until after the husband’s offer had expired may well have been more significant. But the fact that the plaintiff maintained her attitude that the husband was his mother’s heir notwithstanding the production of that copy of the will significantly weakened any argument which might otherwise have been available along those lines. Ultimately the judicial registrar required a contribution of only $5,000 from what was said to be a total costs bill of $15,000, which seems to me to have involved some moderation of a prima facie obligation to pay the husband’s costs incurred after the date of the offer.

Later proceedings in the Family Court^[33]

83. [83]
    On 25 November 1994 the husband commenced proceedings in the Family Court, to obtain a passport after the plaintiff had taken an administrative step which made this necessary: Exhibit 23, p 209. An order was made on 8 December 1994. There was a hearing in the Family Court on 4 July 1995 (Exhibit 23) when the plaintiff was represented by solicitors, but it is not clear to what that related.

84. [84]
    On 16 October 1996, the plaintiff filed an application seeking a review of the property orders made on 12 April 1994, an order as to the custody of the child, Peta, spousal maintenance, surrender of passport, and that a domestic violence order made in 1995 be revoked. On 27 October 1996 the child commenced to live with the husband.^[34]  A cross application was filed by the husband on 23 January 1997 seeking an order for security for costs against the plaintiff, and an order that she not commence further proceedings under the Family Law Act without leave. On 23 January 1997, a judge ordered that until further order the child live with the husband, and the plaintiff have contact with the child, and ordered the plaintiff to provide security for costs in the sum of $7,500. On 7 February 1997 the plaintiff commenced an appeal against the order for security for costs, and on 7 July 1997 the appeal was allowed and the matter was remitted for a fresh hearing before a single judge.

85. [85]
    In the meantime, on 16 April 1997^[35], there was a hearing of the application in relation to the child, as a result of which Jordan J ordered that the child reside with the husband. In his reasons for judgment His Honour noted that since separation the parties had been embroiled in vast litigation in a variety of forums. The husband had complained of breaches of the protection order by her, and she was interviewed by the police: p 54.

86. [86]
    The application for security for costs came on for rehearing before Hilton J on 14 January 1998. Seven days later His Honour ordered the plaintiff to provide security for costs in the sum of $10,000. The plaintiff subsequently appealed to the Full Court against that order. On 24 December 1998 that appeal was dismissed: Luadaka v Luadaka (1998) FLC 92-830. The plaintiff did not pay the security for costs in the sum of $10,000 and the review of the decision of Judicial Registrar Jordan never took place: p 39.

87. [87]
    The plaintiff’s application for spousal maintenance came on ultimately before the Family Court. On 13 July 1999 the plaintiff was represented by counsel in the Family Court on the hearing of her application for spousal maintenance, and a cross application by the husband for security for costs, and declaration of vexatious litigant: Exhibit 23. There was a further hearing for spousal maintenance on 9 August 1999, and the plaintiff was before the Family Court again on 25 November 1999, this time with different counsel: Exhibit 23. Ultimately this resulted in an order that the husband pay her the sum of $75 per week: p 167. He has not been making those payments, and the plaintiff took enforcement proceedings in the Family Court on 7 April 2000 (Exhibit 23, p.208), and has been chasing up the appropriate agency responsible for enforcing such orders: p 167.

Subsequent events

88. [88]
    The plaintiff said that after the judgment on 12 April 1994 she was overwhelmed and stunned; she was in shock because of what had happened: p 18. She had been expecting to be awarded at least $150,000 (p 20) and all she received was $72,000. She told the second defendant she would appeal: p 23. Ms Page described the plaintiff after the decision as being in tears, very upset, very distressed: p 177. The money payable by the husband under the order, after deducting the cost contribution of $5,000, was paid to the defendants, who deducted their costs and paid the balance to the plaintiff: Exhibit 4. Shortly after she received a copy of this order from the court, the plaintiff collected her file from the defendants: p.262

89. [89]
    The plaintiff continued in her work until September or October 1994, when she left both of the jobs: p 43: p 198. In November 1994 she complained to the Law Society about the defendants: Exhibit 52. She resumed work for the South Coast Regional Health Authority as a clinical nurse on 16 January 1995. She had been told this was a temporary position. It continued to 1 September 1995 and during this period she must have been working something like full-time: Exhibit 13. The plaintiff said that she applied for this job when it was advertised in the newspaper, and that it involved work in a methadone clinic in Miami: p 199. The plaintiff said that she was using work as a coping mechanism at the time: p 199. It was a temporary position, to replace someone who was on maternity leave, and that work came to an end because the person she was replacing returned to work. It is not as though she left the job because she found she was unable to cope with it.

90. [90]
    The plaintiff said that during 1994 and 1995 she also studied part-time, and in the latter year completed a BA in nursing: p204-5. Accordingly, it was not just that for some 16 months after the conclusion of the trial the plaintiff continued to work close to full time, but during that time she was also successfully completing a part-time academic course. That suggests that whatever coping mechanism she had in place at that time was functioning quite efficiently, and indeed is consistent with the impression that Dr Comty obtained in May 1994 that she was emotionally more stable by then: Exhibit 51.

91. [91]
    During this period there were also some proceedings relating to domestic violence orders. On 4 April 1995 the plaintiff was represented by solicitors and counsel before the Southport Magistrates Court on committal proceedings (Exhibit 23), relating to domestic violence: p.209. On 1 March 1995 she had received an account from a different firm of solicitors, for work in connection with an application for a protection order in the Southport Magistrates Court: Exhibit 23.

The Plaintiff’s work since September 1995

92. [92]
    The plaintiff said that since she finished work at the clinic in September 1995 she had only had “bits and pieces” of work: p 47. She said that she has applied for other positions, but did not even get an interview: p 201. She had retained her registration as a nurse (p 48) but she would now require re-training to return to work as a registered nurse: p 48, 52. She said that she had since done voluntary work: p 202. However, the records of the plaintiff’s earnings suggest that she was in some substantial employment after September 1995.

93. [93]
    There are a number of notices of assessment and a schedule setting out the taxable income in each year in Exhibit 11. The taxable income for 1995-96 was $19,088, less than the taxable income in the previous years ($27,932) but much more than the amount payable for unemployment benefits. Indeed the Centrelink statement Exhibit 12 shows that the plaintiff was receiving benefits totalling $7,941.10 in that financial year, of which $117 was non taxable, so she must have had taxable income from other sources of $11,263.90. The statement of loss and damage Exhibit 17^[36] referred to the plaintiff’s also working at the Griffith University and for the Australian Red Cross as a clinical nurse. It stated that there was also some work for the Australian Red Cross the following financial year, although no particular amount was attributed to that source. There must have been some income in that financial year, because the social security benefits paid dropped to $5,322.90. If the figure in the list in Exhibit 11 is correct, that means that the plaintiff had a taxable income in 1996-97 from sources other than social security of $15,375.80.

94. [94]
    I have some doubt about the reliability of the figures in Exhibit 17, because apart from the 1999-2000 year the other figures for Social Security benefits did not correspond with Exhibit 12, and the figure given for “net earnings” for 1996-96 does not correspond with either taxable income or after tax income as shown in the notice of assessment for that year, which is part of Exhibit 11. In these circumstances, all that can be said with confidence is that it does not appear that there has been any income, or any significant income, earned by the plaintiff after June 1997. There was however some significant income earned by her during the two years prior to that. The plaintiff was obviously not earning at the rate she had earned prior to September 1995 but she was obviously still able to work to some extent until some time not identified in the evidence, but probably around the middle of 1997.^[37]

95. [95]
    The plaintiff said that she had seen a psychologist in Brisbane, Ruanne Davis, before she saw Dr Lichter, however she could not recall when: p 45. However, she produced a schedule and receipts, Exhibit 24, which indicated that there had been six (6) consultations between 28 July 1996 and 4 September 1996. It also showed that she first consulted Dr. O'Brien about this condition on 7 February 1997, and apparently he referred her to Dr. Lichter. She first consulted Dr Lichter on 4 November 1998. She has seen him once or more each month since then.

Findings as to credibility

96. [96]
    It will be apparent from the account of the history of the matter that in many respects the version given by the plaintiff and the version given by the defendants differ, sometimes about quite important issues. That makes assessment of their respective credibility a matter of some importance. With regard to the plaintiff’s credibility, I have already referred to her repeated assertion that she swore documents only before the first defendant, and noted that it is apparent from the documents that a majority of them were witnessed by the second defendant. It was suggested on behalf of the defendants that this evidence was contrived, and designed to avoid facing the fact that it is obvious on the face of those documents that the second defendant was described as a solicitor. Whether or not that is the case, this feature of the plaintiff’s evidence must cast doubt on the reliability of her evidence generally. Assuming at best for her that her present recollection is as she said, that all documents were sworn in front of the first defendant, her present recollection about this aspect of the matter is wrong.

97. [97]
    In the plaintiff’s letter to the Law Society in November 1994 (Exhibit 52) she referred to the defendants as “the solicitors”, and alleged that the second defendant was in breach of rules in the solicitor’s handbook. When asked why if she thought the second defendant was a barrister she complained to the Law Society about him, she said she did not know about the Bar Association and assumed that it was to the Law Society that she should complain: p 153. But that does not meet the point that she was complaining of his conduct as a solicitor. The complaint against the first defendant was that she had referred the plaintiff to the second defendant notwithstanding that he had very little experience in Family Law matters, an issue that was not pursued at the trial.

98. [98]
    Among the complaints made about the second defendant in that letter were the following:

“(a) Failure to introduce evidence of the past 12 years of care given to husband’s invalid parents…

3. (c)
   Failure to outline to the Judge that I would have full care and custody of my 11 year old daughter.
4. (d)
   Failure to introduce evidence in court with respect to the amount of income I have earned over the four year period before separation as opposed to my husband’s income over that same period of time.”

99. [99]
    As to these, the first two were false. There was no 12 years of care given to the husband’s invalid parents. The husband’s father died in 1988 and his mother was in a nursing home by January 1992, so that the plaintiff was not even living in the same house as one or both of the husband’s parents for more than 10 years. In so far as she provided some care to either of them, that was referred to in the affidavit evidence prepared by the second defendant; it was not suggested before me that that evidence was inadequate in that respect. The husband’s case in his material was that the “care” was minimal, and on the material overall in my view the second defendant did quite well to have obtained some recognition from the judicial registrar that the plaintiff had provided some assistance and care for the husband’s parents: Exhibit 7, p 9-10.

100. [100]
     With regard to the position of the daughter, in the material the second defendant did say the plaintiff had and would continue to have care and custody of the 11 year old daughter, but the judicial registrar properly took into account the fact that that issue was disputed and had not been resolved at that time. As to the question of the plaintiff’s income, there was evidence of the respective income of the plaintiff and the husband in the 1980-1990 years, and in respect of the period about the time of the trial; there was a period of two years in respect of which evidence was not before the court, and for one of these the comparison did not assist the plaintiff. I have dealt with this issue elsewhere, and would merely add that this aspect of the complaint to the Law Society was clearly exaggerated. The other two aspects to which I have referred were demonstrably false. In these circumstances, they must cast doubt on the reliability of the other matters raised in that complaint, some of which were consistent with complaints made to me, where the only relevant evidence is the assertion of the plaintiff which was contradicted by the second defendant. That letter was written only a few months after the relevant incidents, when they ought to have been fresh in the plaintiff’s mind.

101. [101]
     There is also the consideration that the plaintiff made and for some time persisted in allegations in the present action that the defendants had by their negligence caused her a loss of matrimonial property to which the plaintiff would have been entitled. That allegation was made in the amended plaint filed 16 November 1998, para 12 and 14. In particulars dated 16 December 1998 and filed on the same day, the plaintiff identified the claim for loss of matrimonial property as constituted by:

“(a) 50% of matrimonial home estimated at being sale price $350,000 minus $23,000 mortgage, being $327,000 divided by two equals $163,500.

2. (b)
   The loss of share of superannuation of former husband estimated at due to lack of discovery and disclosure $50,000 as my share.
3. (c)
   Inappropriate disposal of household goods and effects such as whitegoods, colour television, stereo and linen estimated at $15,000.
4. (d)
   A further claim for the cost of Ford Falcon sedan valued at $8,500.
5. (e)
   The foregoing total is $237,000.”

102. [102]
     This claim was fanciful. It was clear by the time of the Family Court trial that the husband’s interest in the matrimonial home did not extend to the whole of the home, but only to half of it. Yet the plaintiff was still asserting that but for the defendant’s negligence the whole of the proceeds after discharge of the mortgage should have been treated as matrimonial property. That was devoid of any evidentiary support, and flew in the face of the clear evidence of the title to the land and the will of the mother. It also ignored the fact that she had already received 45% of the husband’s real share in that property. The claim that the husband had some huge additional superannuation was without any evidentiary support, and there is no basis for thinking that the plaintiff ever had any evidence of that. The claim for the cost of the Falcon was also unjustified; the judicial registrar was obviously well aware that she had made most of the payments in respect of the loan for the purchase of this vehicle, and he ordered the husband’s interest in it be transferred to her. There was no rational basis upon which she could have been entitled also to a refund of the payments.

103. [103]
     What has been claimed here is based on the assumption that, if the proceedings had been conducted without negligence, the outcome would have been that everything the husband owned would have been transferred to the plaintiff. That is not the way the Family Court operates, and there was no basis upon which the plaintiff could ever have seriously imagined that that was what was going to happen, or that that was what ought to happen. These particulars are difficult to explain on any basis other than a desire on the part of the plaintiff to make as large a claim as possible against the defendants, regardless of whether it had any rational basis. That is not a matter which encourages confidence in the reliability of her evidence. Unsurprisingly, none of this was pursued, and none would have succeeded, at trial.

104. [104]
     Even more fanciful however were the allegations made by the plaintiff in another proceeding commenced by her in 2000, against another solicitor: Exhibit 57. The plaintiff saw an employee of that solicitor, who read her file and there were one or two letters that they wrote to Mr Twohill, but she was dissatisfied with the way they were dealing with her case, they were not listening to what she was saying, and she discontinued her instructions: p 188. The solicitor then sent her a bill for $1,100, and she queried that and alleged that she had been overcharged, and offered to pay a different amount. She was sued by the solicitor in the Magistrates Court where judgment was given against her in respect of the fees: p 189. Apparently she issued this proceeding in the District Court in response. She made there various allegations of negligence against him, including that he failed to remove Mr Twohill as solicitor for her husband, and failed to follow instructions to obtain a separate legal representative for the husband’s mother, although what the solicitor could have done with a view to achieving that is beyond me.

105. [105]
     In the plaint it was alleged, among the particulars of damages, that the plaintiff suffered a psychological and psychiatric condition diagnosed as post traumatic stress disorder, embarrassment, humiliation and shame together with loss of dignity, loss of matrimonial property to which the plaintiff would have been entitled, as well as special damages, general damages and legal expenses. Any allegation that that solicitor was in some way responsible for loss of matrimonial property is patently ridiculous. There is no evidence that the plaintiff has ever suffered post-traumatic stress disorder, and indeed she denied that she had suffered that condition (p 189) although she claimed (p 190) that her understanding in 2000 was that that was what was wrong with her. There is nothing in Dr Lichter’s evidence to suggest that he gave her any basis for thinking that, and by July 2000 when she filed this claim she had been seeing him for over 18 months. In any case there is no basis for thinking that the plaintiff’s psychiatric problems, identified by Dr Lichter, could have been in any way caused by anything this solicitor did or did not do.

106. [106]
     What appears to have happened here is that the plaintiff issued these proceedings against the solicitor, containing those ridiculous allegations, because he had the temerity to expect to be paid for the legal work he did for her before he was sacked. That may well amount to abuse of process of the court. Whether or not it does, in my opinion it shows the plaintiff in a very bad light, and must justify some scepticism about allegations she makes of wrongdoing on the part of any legal practitioner.

107. [107]
     There are some other matters in the evidence which may be noted. When asked why, earlier in the present litigation, she did not allege that there was negligence in failing to advise her of the effect of rejecting the offer which was made on behalf of the husband in November 1993, her response was that she did not know about the offer until she saw it when discovery of documents was obtained last year: p 189. Indeed she repeatedly said that she did not know about the offer. The plaintiff initially told me (p 9) that she found out when the documents were discovered in this case last year that there had been an offer, because she saw the offer when she read the documents, but she was not informed at the time that there had been an offer. That in context must be a reference to the letter of 3 November 1993: Exhibit 10. When cross-examined about the offer the plaintiff said she was not aware at the time (p 116), and that “I was never informed of any offer”: p 117. However, in the letter she wrote to the Law Society on 9 November 1994 (Exhibit 52) the first matter that she complained about in relation to the second defendant was “failure to explain the settlement offer to me or the consequences for refusing it and merely stating he would get me more money in court”. Clearly, she knew about the settlement offer on 9 November 1994. I note that she did not then allege that he did not disclose the offer, but merely that he did not explain it adequately.

108. [108]
     Even if she had not known about it earlier, she would have known about it when it was discussed in the course of the argument in relation to costs before the judicial registrar on 12 April 1994. Although a transcript of the argument as to costs not before me, there must have been some argument about it, and reference was made to the offer in the reasons of the judicial registrar: Exhibit 7 (p 18). The plaintiff said that the reference to the offer on that day “Did not compute in my head … because I was stressed. I was devastated at what I was hearing, I was shocked”: p 23. Given the extent to which there must have been reference to the offer in the course of argument about costs, and in the final reasons of the judicial registrar, I do not regard that as a plausible explanation. One would have thought that if she found out about the offer for the first time when it was discussed in her presence in the courtroom at the Family Court, that would have been a matter of specific complaint in the letter to the Law Society. It follows that she must have known of the offer earlier, and that strongly suggests that she was told of it when it was made.

109. [109]
     In any case, if what she was intending to convey by the evidence to me was that she knew nothing about that offer until last year when she saw the letter on discovery of documents, that is plainly false.

110. [110]
     Another discrepancy concerned the state of the plaintiff’s file which she obtained from the defendants after the conclusion of the Family Court trial. When the plaintiff first spoke of this in her evidence she said she did not get a complete file, there were things missing from it, “there was no correspondence,” and there were only hand-written file notes: p 23. She said that last year there were some letters or documents and notes that she first saw during discovery at the defendant’s solicitors: p 24. When cross-examined she agreed that on 10 December 1995 she had written to the Queensland Law Society seeking its help to obtain missing documentation from the litigation file returned to her. She had then claimed that the file was incomplete: “The only information in the file are copies of affidavits.” When cross-examined about this complaint, she said initially that the reason she wrote to the Law Society was that there were no letters, there was no correspondence, that was the part that was missing: p 171. When the matter was taken further, however, she conceded that there were some letters on the file. The file contained “some letters” and the hand-written diary notes. It did not consist only of copies of affidavits. Again there is inconsistency in the plaintiff’s complaints which casts doubt on the reliability of them.

111. [111]
     There were various other unsatisfactory features of the plaintiff’s evidence, which I have referred to elsewhere in these reasons. There seemed to be quite a number of things that she did not recall, although they must have occurred, because of the documents in evidence. On the other hand, there was nothing in particular about the evidence of either of the defendants which gave me any reason to doubt its general reliability. It is true that notetaking was perhaps not as comprehensive as it could have been, but in a situation like the present it is always easy to see with the benefit of hindsight that additional diary notes might have been of assistance. The level of notetaking in fact adopted strikes me as plausible, and generally speaking the evidence of the defendants fits in with such notes as are available, and the contemporaneous documents generally. There was a conflict between the second defendant and Ms Page as to how he spoke to the plaintiff as they went into the courtroom, but that is something which the second defendant could easily have forgotten.

112. [112]
     I do not think it is helpful to approach the matter on the basis that it is unlikely that the defendants would have been behaving in a way which would have amounted to negligence (or in some cases, serious neglect of their responsibility to the client) on the basis that this would be inherently unlikely. That is not helpful in deciding whether, in this particular case, it did actually occur. I follow the approach adopted by Chesterman J in Dew v Richardson (Writ 4159/97, 18 August 1999, unreported) p 5. “I approach the critical question on the basis that both client and solicitor, plaintiff and defendant, have an equal right to be believed. Which of their respective versions is to be accepted will depend upon the persuasiveness of their evidence as judged by surrounding, objective circumstances.”  In that case, His Honour rejected the notion that there was any principle of law that when a client and a solicitor disagree about the terms of a retainer (or advice) and the solicitor has not made a written note of the communication, the client’s evidence must be accepted. In the light of that, I did not think that the absence of a written note as to of what passed between the plaintiff and second defendant after the meeting at the Southport courthouse on 7 December 1993 is fatal to the second defendant’s case, or necessarily seriously inconsistent with acceptance of his evidence.

113. [113]
     More recently, the Court of Appeal has touched on this question, and the significance of the comment of Lord Denning in Griffiths v Evans [1953] 2 All ER 1364 at 1369, in Adamson v Williams [2001] QCA 38 at [19], [20] where the court said that such statements were more reflections of matters of policy than directives to a court to favour one party over the other when such a contest emerges. In Adamson the Magistrate who conducted the trial had apparently fallen into the opposite error, of expressing a preference for the evidence of the solicitor simply because he was a solicitor.

114. [114]
     For the reasons I have referred to earlier, there are a number of reasons why I am doubtful about the reliability of the plaintiff’s evidence. There was one particular conflict between the plaintiff and the defendants, as to whether the defendants represented that the second defendant was a barrister. I have referred earlier to the detail of the evidence on this point. I should also mention that the plaintiff said that when she collected her file from the defendants, attached to one of her documents was a sheet of printed letterhead paper used by the second defendant as a barrister at law: p 40, Exhibit 16. The plaintiff could not have received the impression that the second defendant was a barrister from this document prior to the time when she collected her file, but seeing it my have reminded her of things having been said about the second defendant’s having practised as a barrister. The second defendant’s explanation was simply that he had letterhead left over from those days, and was using it up as a form of scrap paper. For example, when he prepared the draft of the updated statement of financial circumstances, the draft document with various blanks in it to be filled in was typed out (or printed out by a word processor) on a number of sheets of this paper: Exhibit 80, p 314. The second defendant said that this would have been given to the plaintiff to complete and she could well have seen the letterhead in use in this way.

115. [115]
     There are however a number of difficulties with the proposition that the plaintiff thought that the second defendant was a barrister. On a number of the documents where he witnessed her signature he is described as “solicitor”, and on Exhibit 30, the original application, on p 13 there is a declaration by a solicitor which described the second defendant as “the solicitor for the applicant” just under the affidavit of applicant which the plaintiff signed and swore in order to verify the application. The plaintiff denied however that she saw this when she signed the document, and said that she would not have read that because that was nothing to do with her: p 94. She said that she would have read the part that was relevant to her (p 95) but it is difficult to see how she could have ascertained that that part was not relevant to her without reading it. The fact that that declaration was to be signed by the second defendant is quite prominent, and even if she had not read the rest of the document I would have expected someone who was signing the document to have noticed that.

116. [116]
     There is also the consideration that the plaintiff could see that the second defendant was not robed when they appeared before the Family Court, although the barrister appearing for the husband was. The second defendant announced his appearance before the judicial registrar as “a solicitor”: Exhibit 54, p 2. The plaintiff said she did not recall him saying those words (p 151) and said that at the time when she wrote the letter of complaint in November that year to the Law Society she still thought he was a barrister: p 153. That letter refers to him as one of the solicitors about whom she is complaining: Exhibit 52. Then on p 154 she said that when she got the photo she had evidence that that was what he was projecting himself to her as. This is a reference to the photograph Exhibit 1, which the plaintiff said she took in about April 1997 (p 7), which shows the first defendant’s firm described as “barristers and solicitors”.

117. [117]
     The first defendant said that that sign was put up at a time when there was discussion within the Law Society of a change in relation to the profession and as to what sign was to be allowed, and that sign was put up in anticipation of a change which did not eventuate: p 239. The second defendant said that he arranged for the sign to be put up after he had been told something by the Law Society, although what he was told did not amount to some sort of authorisation to put up a sign in those terms: p 269. He believed at the time that there was going to be a change to common admission of legal practitioners: p268. The sign was later modified to delete the reference to barristers: Exhibit 61. All this is quite plausible.

118. [118]
     I cannot accept that when the plaintiff wrote the letter, Exhibit 52, to the Law Society in November 1994 she believed that the second defendant was a barrister. No complaint of such conduct was made in that letter. The allegation emerges after the plaintiff saw the sign in 1997: see for example the allegation in the amended plaint filed 22 April 1998, in the particulars of paragraph 5. The defendants accept that there was some talk of the second defendant having been a barrister, and on the basis of that I believe the plaintiff has either consciously or unconsciously reconstructed the evidence of having been told that he was a barrister.

119. [119]
     It would be plausible that the defendants would draw attention to the second defendant’s previous experience as a barrister as justifying his ability to act as a solicitor advocate in this case, but it is very difficult to believe that someone in his position would have pretended still to be a barrister with a view thereby to obtain instructions to appear for the plaintiff in the Family Court, where he could scarcely continue to pretend that he was a barrister, and where any pretence must necessarily have been unmasked. The plaintiff’s allegation involves the second defendant’s having pretended to be a barrister so that he would be retained to appear for the plaintiff, but in the hope that the matter would never get to court so that he would be unlikely to be exposed. That is particularly implausible when there was an early interlocutory application to preserve the proceeds of sale of the property. Presumably, when the second defendant appeared before the Family Court in relation to that application he announced his appearance as a solicitor. He could hardly have expected to pretend on that occasion to be a barrister, and he must have expected that any pretence to his client to that effect would run a substantial risk of being exposed as early as the return date of the interlocutory application.

120. [120]
     In all the circumstances, I am not prepared to accept that either defendant represented to the plaintiff that the second defendant was a barrister. In the light of the more general doubts that I have about the plaintiff’s evidence, and in the light of the particular considerations relevant to that issue, I reject her evidence on that point, and prefer the evidence of the defendants. I appreciate that it does not necessarily follow that, because this part of her story is wrong, the rest must also be wrong. But, in circumstances where I already have doubts about the reliability of her evidence, once I have decided to resolve this particular issue adversely to the plaintiff, that becomes a further matter which tends to cast doubt on the rest of the account of the plaintiff, at least where it differs from the version given by the defendants.

121. [121]
     In these circumstances, generally where there is a conflict between the parties, I prefer the evidence of the defendants (generally the second defendant) and reject the evidence of the plaintiff. Overall, I do not regard the plaintiff as a reliable witness, and even where there is no direct conflict between her evidence and evidence from another source, in general I am not prepared to accept her evidence unless it is supported by some evidence from some independent source, or is clearly inherently credible.

Findings of fact

122. [122]
     In the light of my conclusions as to credibility I therefore make the following findings as to disputed questions of fact. As indicated above I do not accept that the plaintiff was told by either defendant that the second defendant was a barrister, although she was told that he had been practising as a barrister and would be able to represent her in court himself, and she agreed to that course. She was told that she would be charged costs on the Family Court scale. She did not in the initial consultation give any instructions about seeking to remove Mr Twohill as solicitor for her husband. She told the second defendant that she did not believe that the husband was only receiving the amount stated in the contract for sale of the matrimonial home, and she did not trust him. She gave him instructions as to the facts which were reflected in the affidavit material which he prepared. Various affidavits sworn by her were sworn before the first or second defendant as appears on the particular document. She was present at court on 2 August 1993, and she agreed to accept the written undertaking to the court by the husband in relation to the sale proceeds of the house in satisfaction of the claim for interim relief. As a result the orders were made that day by consent.

123. [123]
     I accept that at the conciliation conference there was some discussion about possible outcomes, depending upon whether or not there was a will which left the mother’s property away from the husband, but there was no clear statement at that time that there was such a will in existence. Counsel for the defendant sought a finding that an offer was made at that conference, in terms of the offer set out in the letter of 3 November 1993: Exhibit 10. On balance however I think it more likely than not that there was no actual offer made, although an offer may well have been foreshadowed, perhaps in specific terms, but subject to further instructions. The terms of Exhibit 10 do not, I think, clearly indicate that it was merely repeating an offer previously made at the conference. The second defendant did not recall an offer actually being made, and there was no reference to any offer in his diary note of the conference in Exhibit 9.

124. [124]
     Before or after the conference the second defendant warned the plaintiff of the consequences of not doing better than any offer from the husband, in that she might be required to pay his costs after the offer was made. The following day the plaintiff telephoned and raised the issue of Mr Twohill, said that any will that the husband produced would be a forgery, and said that she did not want to settle. I accept that Exhibit 9 includes a contemporaneous diary note by the second defendant of this conversation, and that it was accurate. I find that the second defendant told the plaintiff about the husband’s offer, and that he advised her not to accept it, and she accepted that advice and instructed him not to accept it.

125. [125]
     There was a conference on 7 December 1993 at which a copy of the will was produced. The plaintiff was then warned by the second defendant that if the will was genuine that changed the whole situation and in those circumstances the offer the husband made would be a good basis for settling the matter, but she instructed that she would not accept anything less than production of the original will, and would not settle unless that was produced. I find that the second defendant did not say, after the conference with the husband and his solicitor on 7 December 1993, about the sum of $90,000, “I can get you more money than that”. The second defendant pressed for the original will to be produced but that was refused by the husband. Prior to the trial in the Family Court the second defendant explained to the plaintiff what he expected to occur. Further documents were prepared and filed in the court in accordance with the plaintiff’s instructions.

126. [126]
     I accept that when the plaintiff and the second defendant met on the morning of 12 April not much was said. I accept the evidence of Ms Page that as the plaintiff went into the court with the second defendant on 14 April he said to her “just sit there and say nothing and shut up and I’ll do the talking.”  He told Ms Page she had to wait outside and she did. Otherwise I accept that the hearing proceeded as set out in the transcript Exhibit 54, and that the things said by the second defendant during the hearing as recorded in the transcript was said by him with the plaintiff’s instructions.

Medical evidence

127. [127]
     Medical evidence falls into two categories. There are a series of letters^[38] from Dr Comty, an endocrinologist, to Dr Hill, presumably the general practitioner treating the plaintiff, concerning her Graves Disease,^[39] which ran from April 1992 to May 1994. Dr Comty has now left Australia, and was not available to give evidence. There is also a report dated 8 June 2001 from a psychiatrist, Dr Lichter, who has been treating the plaintiff since November 1998: Exhibit 22. He also attended and gave oral evidence, and was cross-examined.

128. [128]
     The first letter from Dr Comty dated 28 April 1992 (Exhibit 45) said that an overactive thyroid was diagnosed in 1991 and the plaintiff was treated with medication for about four months. There had been some recurrence of symptoms, feeling shaky, waking early and being tired all the time, constipation and problems with periods, but Dr Comty thought that the thyroid was not the cause of the present complaints. There was a family history of thyroid problems, and her previous tests and a thyroid scan done in April 1991 were all consistent with mild Graves Disease, which fitted the clinical picture. However, the doctor thought the condition was then in remission. Physical examination revealed a healthy young woman; the doctor noted that the plaintiff was working in three jobs for 32 hours per week.

129. [129]
     The next letter is dated 18 October 1992: Exhibit 46. The plaintiff had a further thyroid scan in July which showed Graves Disease, and she was evidently back on medication. Dr Comty thought that she would need a further 18 months of therapy, but was hopeful that the condition would settle down completely in time. The letter noted that there had been panic attacks, although these had ceased with the medication. A further review led to a letter of 12 March 1993 (Exhibit 47). The plaintiff’s condition was apparently well controlled by the medication she was then still taking. She was seen again on 27 May 1993 (Exhibit 48) when Dr Comty recorded a loss of about one and a half kgs in weight and noted “there is sufficient problems at home to make anybody sick. She finds that she is very emotional and tearful at the present time and thinks she is hard to live with.” The thyroid problems appeared to be in complete remission, although the medication was continuing. Dr Comty noted that she was under a severe amount of stress which was contributing to her general feeling of irritability.

130. [130]
     The plaintiff was seen by Dr Comty on 2 September 1993: Exhibit 49. The doctor had planned to take her off the medication at that time, but because “she is having a tough battle with marital difficulties” the medication was continued until after the court hearing which was thought to be in November, with the situation being reassessed in January. The next letter of 3 March 1994 (Exhibit 50) was introduced with the words “of course you have heard of the problems with Diane and her husband”. It notes that the plaintiff was then off medication for several months and that the thyroid function remained normal, and the doctor hoped that the Graves Disease would settle when her emotional problems had settled. The final letter from Dr Comty of 5 May 1994 (Exhibit 51) said that there was nothing to suggest recurrence of the Graves Disease, and the doctor thought the plaintiff was more emotionally stable now that her divorce had gone through. She described the plaintiff as “feeling very well, no complaints.”  The doctor thought that perhaps the emotional stress that she was under with her husband could have precipitated the disease in the first place. The plaintiff had recovered the one and a half kilograms she had lost the previous year, and put on a further four kgs.

131. [131]
     These letters suggest that the plaintiff had substantial emotional problems associated with the breakdown of the marriage and the separation, and during the period of the litigation in the Family Court, but her condition improved after that was concluded in April 1994. Nevertheless, it is apparent from the history of subsequent litigation that the plaintiff did not put her dispute with her husband behind her, so the relatively positive assessment in May 1994 was not because the dispute in the Family Court was all over. It is difficult to reconcile with the idea that whatever happened at the trial in April 1994 had a substantial adverse effect on the plaintiff’s mental state.

Dr Lichter

132. [132]
     Dr Lichter reported in Exhibit 22 that when he first saw the plaintiff in November 1998 she had been suffering from an anxiety disorder with panic attacks and some depressive symptoms. She complained of tension and anxiety, periods of fatigue, anger, frustration and tearfulness, with low stress tolerance, impaired concentration and difficulty in thinking clearly. She had had quite a lot of counselling over a number of years from a variety of people, and felt a strong need to feel in control. She reported that she has not been able to work recently as a result of the mental condition and her preoccupation with pursuing her legal case.^[40]  When first seen she appeared tense, anxious, mildly depressed in mood. Blood tests indicated hypothyroidism, suggesting a condition such as Graves Disease, and she was treated with medication for that, and also placed on anti-depressants. The doctor was also applying therapy to improve her self-esteem, for her to be more assertive. Between November 1998 and June 2001 her moods gradually improved and she had been coping better in stressful situations such as representing herself in court.^[41]  She had been attempting to obtain work in the nursing field again but believed that she would be now less suited to work in clinical nursing because she was now less patient and sympathetic towards others.

133. [133]
     Dr Lichter noted that the plaintiff’s anxiety disorder had developed in the context of a stressful court case in which she had been representing herself, attempting to reopen a property settlement from 1994 which had been very disadvantageous to her. It is not clear to which later proceeding in the Family Court this referred, although it is likely that all of them would have been quite stressful. She had reported to Dr Lichter that the second defendant had claimed he was a barrister which was false, and that she had been badly represented in court. The abuse she had experienced in the marriage had been perpetuated by the legal system, in which she had been subject to bullying, intimidation, betrayal and unjust treatment.

134. [134]
     Dr Lichter expressed the opinion that she was suffering from an adjustment disorder with mixed anxiety and depressed mood which had resulted from her disadvantageous property settlement and the stress involved in trying to pursue the legal case. He thought that the disorder was perpetuated by the continuing legal process, and believed that following the successful resolution of the case a significant improvement of her mental state would occur, although she would continue to benefit from treatment for at least six to twelve months. She should be ready for suitable part time work six months after the successful resolution of her current legal proceedings. He speculated that her thyroid condition may have been triggered or exacerbated by the stress she had experienced since the property settlement, and that condition might require long term maintenance with medication. In court he conceded that the condition had been pre-existing: p.146.

135. [135]
     Under cross-examination Dr Lichter identified a number of things that the plaintiff had complained of; apart from the matters referred to in the report, she had said that she felt that the total assets had not been accurately put before the court, and she felt she deserved to be awarded a much greater sum than she actually received: p.134.^[42]  Apart from any problems associated with the property settlement, she had been put under stress by a bad marriage, and had found her husband’s manner very controlling (p.135), something which reminded her (apparently unpleasantly) of her experience earlier in her life with a very controlling mother: p.136. However, Dr Lichter did not think that the stress associated with the bad marriage would have produced an adjustment disorder which had continued to be a problem over such a long period of time: p.136. Normally problems would subside over a period of a few months after the marriage had actually come to an end. He conceded however that the continuation of the litigation against the husband was important and was contributing to ongoing tension and anxiety: p.137.

136. [136]
     The plaintiff said that her husband had been abusing her physically since about 1990^[43] (p 159) and she found this very distressful and upsetting: (p 160). She had been living in fear of him for twelve (12) months before he moved out of the house in March 1994: p 158. The plaintiff said that she had told Dr Lichter this (p 159) but conceded that she had not gone into detail with him about the problems in the marriage: p 161. If there is any substance in the plaintiff’s allegations about the husband’s behaviour, and they do have some support from a photograph, Exhibit 26, it is obvious that during the period up until March 1994 she would have been under considerable emotional strain because of the fact that she was still living in the same house as he was, and after then there would have been considerable emotional stress associated with the trial anyway, even for someone who did not suffer substantial disappointment from the outcome.

137. [137]
     Dr Lichter was of the view that the plaintiff at the time of trial could not work as a clinical nurse, because her condition had affected her concentration and her capacity to perform the normal working duties: p.132-3. Although she had been able to work for a time after April 1994, because of ego defence mechanisms (p.138), as time went by it became increasingly difficult for her to use work as a distraction and then it reached a point where she felt she was unable to continue. Dr Lichter conceded that her preoccupation with pursuing her legal case was a significant cause of her inability to work: p.140. He agreed (enthusiastically) that the plaintiff was fixated on the litigation that she was involved in: p.139. The plaintiff had not told Dr Lichter of the symptoms that she had been suffering in 1992 (p.141) but after the doctor was told about this, and shown the reports of Dr Comty, his view of the plaintiff’s condition, and the basic cause of it, did not change.

138. [138]
     Towards the end of the cross-examination I put to Dr Lichter a couple of theories that had occurred to me in the course of the trial: that the series of litigation which the plaintiff had engaged in against her husband was an attempt to obtain revenge through the courts against him for the bad treatment she had received at his hands during the marriage, and that in a sense what was occurring in the present case was that the plaintiff was fighting her ex-husband by proxy: p.145-6. Dr Lichter seemed to accept that there was something in these theories, although that may have been due more to politeness on his part than to any real enthusiasm for them; he did say that that was not the real cause of her current problems or even a major cause of them. It was suggested that her hostility towards the second defendant really arose from the fact that he was acting for her on one of the few occasions when she was not representing herself in court, and she was therefore likely to blame him for the problems she had had. Dr Lichter’s response raised the question of whether the plaintiff had a justified grievance about the way she had been treated by the court, and expressed the view that it mattered whether the lawyer in fact conducted the case well or badly: p.145.

139. [139]
     The difficulty with this of course is that the plaintiff is not in a position to assess that. She has judged the outcome against what she wanted to achieve, and she believed that the result was disadvantageous because she did not do as well as she wanted to do. She has rationalised this on the basis that the second defendant did not conduct the proceedings properly, so he is to blame for the disadvantageous outcome. She did not do as well as she wanted and expected to do out of the proceedings: therefore she was disadvantaged by the proceedings. That cannot have been because of the lack of merit in her case, so it must have been because of the inadequacy with which that case was presented by the second defendant. Therefore the second defendant is to blame for her problems. Dr Lichter did not accept that analysis (indeed it was not put to him in those terms) but he did concede that what mattered in terms of the effect on the plaintiff was her perception about what had happened in the court case: p.145.

140. [140]
     The difficulty for the purposes of this case with Dr Lichter’s opinion is that from his point of view it did matter that the plaintiff was disadvantaged by the court in the property proceedings in April 1994, so that she did have, as he put it, a justifiable reason for all the angst and anxiety in the first place: p.145. It was originally the plaintiff’s case that the second defendant had been negligent in not persuading the Family Court to treat the half interest in the property owned by the husband’s mother as in effect belonging to him, or at least being available to him. The plaintiff had also claimed that that property was being sold for a much higher amount, or was at least worth much more, so that the value of the husband’s interest in it (whatever it was) had been understated and that he had much more superannuation than he had disclosed. However, ultimately those points were not pursued on behalf of the plaintiff at the trial, and there was no evidentiary basis upon which they could have been pursued on the material before me.

141. [141]
     Ultimately the idea that the plaintiff was badly done by because there was more money available for distribution out there somewhere, which was not identified and brought to account because of the negligence of the second defendant, was not pursued, understandably because there is not a scrap of evidence to support it. Some relatively minor criticism was made of the way in which the second defendant conducted the trial, but the thrust of the plaintiff’s case before me was directed not towards the conduct of the trial but towards advice alleged to have been given or not given prior to the trial: advising that the plaintiff would achieve a distribution based on the whole sale proceeds of the property being available for distribution, and the failure of the second defendant to advise the plaintiff to accept the favourable offer of $90,000. The criticism here is directed essentially to his failure to disabuse her of her unrealistic objectives for the litigation.

142. [142]
     The difficulty for the plaintiff in relation to the medical evidence is that there is simply no evidence that any such failure, if it occurred, was the (or a) cause of the adjustment disorder identified by Dr Lichter. I do not think it can be assumed from Dr Lichter’s evidence that if the true situation was that the distribution of property by the Family Court was fair to the plaintiff, and the plaintiff reacted badly only because of her unrealistic expectations, the plaintiff’s subsequent anxiety disorder was caused by the failure to advise her that those expectations were unrealistic.

143. [143]
     There is a further difficulty with the evidence of Dr. Lichter, relating to causation. He held to his opinion that the property dispute was the principal cause of the plaintiff’s condition, although he conceded that there had been other stressors. It is necessary to consider just what was happening in late 1996 and early 1997. In October 1996 the plaintiff’s daughter left home, apparently without warning to the plaintiff, and went to live with the husband. Subsequently, twice Family Court judges ordered that she live with the husband. She would have been thirteen when she left, and thirteen or fourteen when the matter was before the Family Court. I think it unlikely that an order would have been made that a daughter of that age live with her father rather than her mother unless there was some clear evidence of some serious deficiency in the plaintiff’s parenting (and there was no suggestion of that in the evidence I have seen) or the child expressed a clear preference to live with the father.^[44]  That suggests that the relationship between the plaintiff and her daughter was deteriorating in the latter part of 1996.

144. [144]
     It was in October 1996, shortly before the daughter left, that the plaintiff filed the application seeking a review of the orders made on 12 April 1994. Given the extent to which those orders are supposed to have upset her, it seems surprising that it took her so long to make that application. Prior to then there had been other proceedings in the Family Court involving the parties. Thereafter the proceedings multiplied, with the custody dispute becoming a “big drama” in the latter part of 1996 and through to April 1997. It was in that context that the present proceedings were commenced against the defendants. It appears that the plaintiff ceased working at about the time of this custody dispute, or at the end of it. That suggests that any deterioration in her capacity to work was prompted by the stress and disappointment associated with the custody dispute, in which she ultimately lost custody, rather than anything the defendants did or did not do.

145. [145]
     The history therefore is one where the plaintiff continued to work more or less full-time for most of sixteen months after the resolution of the property dispute, and thereafter must have continued to do a significant amount of part-time work, but her work ceased at about the time when she lost the substantial dispute with the husband over custody of their daughter. That was not a straightforward dispute; there were a number of applications, but ultimately the plaintiff was unsuccessful. That must have amounted to a significant emotional trauma for the plaintiff. After that emotional trauma, she has not worked. The plaintiff blames the custody dispute and her lack of success on the defendants, because they did not have Mr Twohill removed as solicitor for the husband: p.55. I am satisfied that there is no rational basis for that belief, but it explains why she sees the property dispute rather than the custody dispute as the real cause of her problems.

146. [146]
     Dr Lichter did not see the plaintiff until over twelve months after that emotional trauma was suffered. Although Dr Lichter attributed the plaintiff’s psychiatric condition principally to what the plaintiff experienced in connection with the property dispute, he relied on what she told him about that case: p 131. But I have found that the plaintiff’s complaints about that case, in particular about the second defendant’s conduct of it, were not justified, and it follows that Dr Lichter, in arriving at his opinion, has been acting on incorrect information. He has been at best acting on the plaintiff’s perception of the situation, rather than the real situation, but Dr Lichter regarded the real situation as important: p 145. Therefore, Dr Lichter’s opinion as to the cause of the plaintiff’s mental problem was unreliable, because it was based on unreliable information.

147. [147]
     In these circumstances, and in the light of the significance of the timing, and bearing in mind the comment of Dr Comty in May 1994, I am not persuaded that anything that happened in connection with the property dispute was a cause of the psychiatric condition which Dr Lichter identified, and which I accept the plaintiff was suffering from by the time she saw him in November 1998. The only real cause of that condition was the custody dispute.

Plaintiff’s allegations of professional negligence

148. [148]
     It is appropriate to analyse the plaintiff’s allegations by reference to the document provided on behalf of the plaintiff on the second day of the trial, “Clarification of the Particulars of Professional Negligence of the First and Second Defendants”. By this document the plaintiff’s case was effectively confined to nine specific allegations as follows^[45]:

1. Failed to properly mention the effects of rejecting that the $90,000 plus offer was a firm offer, and that if rejected might lead to an order to pay the husband’s costs.

2. Failed to take action to get Mr Twohill disqualified from acting for the husband.

3. Failed to properly advise that the plaintiff had no prospect of obtaining half of the proceeds of the sale of the matrimonial home, due to the fact that she was not registered on the title deed and it was wrong to advise the plaintiff that she would get half of the proceeds of the matrimonial home sale.

4. Failed to properly advise and discover and explain the effects of the will of Mrs Luadaka senior.

5. Failed to properly advise the plaintiff on the sale of the matrimonial home proceeds which are outlined in Mr Twohill’s letters date 2 and 4 March 1994. Which letters show that the amount of deposit of $5,000 is omitted and the further amount of $5,000 is also omitted for alleged damages.

6. Failed to properly check Judicial Registrar Jordan’s asset pool finding of $172,500, which did not reflect that $72,000 as ordered to the plaintiff in fact represented 47% of a pool of $153,199. The correct 47% of a pool of $172,500 is $81,075.

7. Failed to check the order of Judicial Registrar Jordan dated 12 April 1994 which shows in fact that $79,000 was ordered to be paid to the plaintiff.

8. Failed to fully document the plaintiff’s financial contributions to the marriage.

9. Failed to take any or any reasonable steps to point out to Court that the plaintiff was living in a state of prolonged fear for her own safety.

Ground 1

149. [149]
     The plaintiff’s submission in relation to this ground was not that there had been a failure to warn at all of these consequences, but rather that there had been a failure to give sufficient warning properly to bring the matter home to the plaintiff. It was submitted that once the offer of 3 November 1993 was received the second defendant ought to have written to the plaintiff enclosing a copy of the offer so that she could see it for herself, and ought in the letter to have pointed out to her again expressly that if the offer were not accepted and the matter proceeded to trial the plaintiff would be at risk of having to pay the husband’s costs after the offer was made: p.319. Certainly that step was not taken, and the question is whether the omission of it was negligent.

150. [150]
     There is no evidence that a reasonably competent solicitor in the position of the second defendant in such circumstances would have taken that course, and I am in effect being asked to treat it as being so obviously appropriate that the omission can be seen as being negligent, notwithstanding the absence of such evidence. It was submitted (on instructions) that it was necessary to assess the duty of the second defendant to the plaintiff, or perhaps the standard of care, bearing in mind the plaintiff was a person under a disability, not being well in the psychiatric sense because of her Graves Disease: p.318. There are a number of difficulties with that submission.

151. [151]
     The first is that the letters of Dr Comty of 2 September 1993 (Exhibit 49) and 3 March 1994 (Exhibit 50) both indicate that the plaintiff’s thyroid condition at each of those times was properly controlled by the medication she was then taking, and there is no reason to think that it would have been any different at any time in between. There is no evidence that the plaintiff’s judgment or ability to appreciate the significance of what she was told was in any way impaired by her medical condition at the relevant time, or any reason to infer that. Furthermore, there is no evidence that the second defendant knew or believed the plaintiff’s mental condition was in any way adversely affected by her Graves Disease at the time; the plaintiff had instructed him that she had that condition but that it was properly controlled by medication, and he had no reason to think otherwise. There is therefore no evidence that the plaintiff was relevantly under some mental or psychiatric disability at the time which would have required particular care in providing her with advice, nor was there any evidence that the second defendant knew or ought to have known of this. In those circumstances the standard of care required of the defendant cannot be higher than the standard required in the case of a client who was (like the plaintiff) an intelligent and articulate woman with no apparent mental difficulty.

152. [152]
     It is also necessary to assess what the second defendant did in the light of the plaintiff’s reaction to the conciliation conference, particularly what she communicated to him on 29 October 1993. I accept the second defendant’s account of that conversation, supported as it is by his diary note within Exhibit 9 which I accept as genuine. I also accept that the second defendant had told the plaintiff orally on the day of the conciliation conference that if an offer from the husband was not accepted and the plaintiff did not do better at the trial she was at risk of being ordered to pay the husband’s costs incurred after the offer was made. After having been given that advice, on the following day the plaintiff clearly communicated an attitude that she did not want to settle. Further when informed by telephone of the settlement offer, I accept that she rejected it.

153. [153]
     In these circumstances I am not persuaded that the second defendant, in failing to send a copy of the settlement offer to the plaintiff together with a written warning as to the implications of failing to accept, it was in breach of his duty to the plaintiff to exercise reasonable care and skill in giving her advice in relation to the litigation.^[46]  I do not accept that such a failure amounted to negligence. I am not persuaded there was any breach of the second defendant’s duty in that respect.

154. [154]
     In any case, I am not persuaded that, if the second defendant had taken that step, it would have made any difference to the plaintiff’s attitude. My assessment of the plaintiff is that at that stage she was determined to fight her husband in court, as indeed she remained after 12 April 1994. Accordingly, even if there had been negligence in this respect, I am not persuaded that it caused the plaintiff any loss.^[47]

155. [155]
     Accordingly, the first ground relied on by the plaintiff fails.

Ground 2

156. [156]
     The plaintiff said that in 1989 she spoke to Mr Twohill about the matrimonial situation, but no court proceedings were taken as a result: p.86. She said that on one of a number of occasions on which she saw the second defendant she asked him to do something about the fact that Mr Twohill was representing her husband in circumstances where he had previously given her matrimonial advice: p 8. She said that she was not aware of anything having occurred as a result. She later said that she told the second defendant about Mr Twohill’s having given her advice at the outset, in her initial consultation with him: p.142. She had later gone through her chequebooks and found proof that she had seen him. I asked her to explain how this earlier contact with her gave Mr Twohill (and hence her husband) some advantage in the proceeding in the Family Court: p 193. She was unable to identify anything specific. She complained about his having heard her perspective of things, and his being a social friend of her husband as well, but the latter factor is of no significance. When I pressed the issue she said that Mr Twohill was directing her husband to do things in the house to intimidate or harass her and to cause her more stress and anxiety: p.196. She said Mr Twohill was well aware of the situation she was living in although this was apparently more from his friendship with the husband than anything she had told him. The plaintiff seemed to be in effect accusing Mr Twohill of having incited the husband to mistreat her, although that was simply speculation on her part. She also blamed Mr Twohill for the difficulties she had later about custody of the daughter, claiming that those difficulties were a consequence of his not having been “removed” by the second defendant: p 55.

157. [157]
     The second defendant said he was told to do something about Mr Twohill in the telephone conversation on 28 October 1993: p.250. He obtained an authority from the plaintiff and sent it to the firm where Mr Twohill had been at the relevant time, but they said they had no file. He said that later she told him she wanted him to try to have Mr Twohill disqualified and he raised that matter in a letter with Mr Twohill, who replied that he had seen the plaintiff in the past but had no recollection of what she had told him, that she was not prejudiced by his continuing in the matter and that he would not withdraw at that stage because the prejudice would be too great to the husband. The plaintiff said she did not recall being told about this response, but she was not saying that that did not occur: p.124. The second defendant said that he told the plaintiff that an application could be made to have Mr Twohill disqualified but that he did not think it would succeed and that if she failed she would have to pay the costs: p.290. The plaintiff, when asked about this, initially said she could not recall it but did not say it had not occurred (p.125), but then asserted there had never been such a discussion: p.126.

158. [158]
     I accept that the second defendant discussed the response from Mr Twohill with the plaintiff, and that he advised her not to take the matter any further, and she did not instruct him to do so. That, in my opinion, was sensible advice. I think it unlikely that if an application had been made the court would have ordered Mr Twohill not to act further for the husband, because of the much earlier occasion when he had briefly seen the plaintiff.^[48]  It was not appropriate for the second defendant to do any more to have Mr Twohill removed, and he had no instructions to do any more, and if he had attempted to do any more it would probably have been a waste of time. But apart from those difficulties, there is simply no evidence that the plaintiff is in fact any worse off as a result of Mr Twohill having acted for the husband in the proceedings rather than another solicitor, whatever she may think about the matter. Ultimately this ground was not pressed in submissions on behalf of the plaintiff: p.320.

Ground 3

159. [159]
     The second defendant conceded that at an early stage he advised the plaintiff that he expected that the court would make a 50:50 division of the assets available for distribution, or something of that order: p.233. That was on the basis that she would ultimately have custody of the daughter: p.232. On the basis of the plaintiff’s instructions at the time, that was a reasonable assumption, but ultimately the court did not proceed on that basis.^[49]  At that early stage as well the plaintiff’s instructions were to the effect that the husband was his mother’s sole next of kin, and therefore heir to her interest in the property. If it had been the case that the mother had not made a will and had ceased to be of testamentary capacity, it may have been realistic to treat her interest in the property as being at least a relevant consideration^[50], if not a resource available to the husband^[51]. In circumstances where the bulk of what was available for distribution was the net sale proceeds of the property, that was not an unreasonable approach. There is certainly no evidence that a reasonably careful solicitor in the position of the second defendant would not have given such advice to the plaintiff at that time. I am not persuaded that any advice given at that time was negligent.

160. [160]
     The submission on behalf of the plaintiff however did not focus on advice at that time; rather reliance was placed on the plaintiff’s evidence that, after the meeting at the Southport courthouse on 7 December 1993, the subject of $90,000 came up in conversation, and the second defendant had said that he could get more money than that: p 320. As I noted earlier, the second defendant denied that he said this and gave a different version of the conversation, and for reasons given earlier I prefer his account of what occurred on this occasion. I am not persuaded that he ever made the statement attributed to him by the plaintiff at p.10. In so far as this ground relies on what she claimed he said on this occasion, the ground fails. I am not persuaded that, at any time after an issue arose as to the true beneficiary of the husband’s mother, the second defendant advised that the plaintiff would get half of the net proceeds of sale of the matrimonial home.^[52]  I find that on 7 December 1993 he did warn her that, on the basis of the copy of the will produced, the husband’s offer was a good one for her to accept.

Ground 4

161. [161]
     As developed in submissions, this point appeared to be that the second defendant ought to have ensured that during the hearing at the Family Court he saw the will and ascertained what it actually said so that he could properly advise the plaintiff: p.321.^[53]  The second defendant acknowledged that he did not see either the will or a copy of the will while he was at the Family Court on the day of the trial: p.298. At one point during the proceeding at the Family Court on 12 April 1994, counsel for the husband said he had a copy of the will which he would be seeking to tender: Exhibit 54, p.21. The transcript records that there was some discussion with the judicial registrar when he indicated essentially that he was not interested in investigating that issue, and after a short adjournment the second defendant said he had spoken to the plaintiff and had instructions not to pursue the question of the property of the husband’s mother. It is apparent, as I have said earlier, that had that attitude not been taken the result would have been the same, although no doubt in those circumstances the copy will have been put in evidence. This follows from the comments made by the judicial registrar both during the trial and in his reasons for judgment.

162. [162]
     In these circumstances, it does not seem to me that any harm has been done by not insisting that the will be put in evidence in the Family Court, or at least produced for inspection there. Since I have before me a copy of the Grant of Probate of the will of 5 June 1984 (Exhibit 82), which was sealed on 18 October 1996, it is clear that that was the last will of the husband’s mother, and if it had been produced in the Family Court (or a copy of it produced), it would have shown what that document shows, namely that at that time she had made a will leaving her estate to her grandson if she survived her husband (as she had). In these circumstances the plaintiff could have been no better off had the second defendant inspected the will or a copy of it at the Family Court on that day, and therefore the plaintiff has necessarily lost nothing because he did not do so.

163. [163]
     I find that a copy of the will was produced for inspection by the plaintiff and second defendant during the meeting at the Southport Courthouse on 7 December 1993, and from then on both knew that there was an apparent will in existence in terms which were inconsistent with the plaintiff’s argument that the husband was his mother’s heir, and that the husband was going to rely on that at the trial as the last will of his mother. Given the mother’s mental state, that necessarily meant that her estate would not and could not be a resource available to the husband, except to the very limited extent admitted by the husband in para 40 of his affidavit of evidence in chief: Exhibit 56. The plaintiff may have been unwilling to accept that any such will was genuine, as she said on 28 October 1993, but there was no evidence available to her to prove that it was not genuine. The second defendant would have had no reason to think that the copy of the will that counsel was proposing to tender to the Family Court was going to be any different from the one that had been inspected the previous year, and therefore no reason to look at it first to check what it said. It was not negligent not to do so. Accordingly, this ground fails.

Ground 5

164. [164]
     This ground was based on the proposition that the net proceeds of sale of the premises realised $5,000 more than the amount disclosed in the husband’s material, so that when he swore the amount he received was $159,258, that figure should actually have been $2,500 higher. Had that been the case, the plaintiff would presumably also have received 45 per cent of that additional amount, an additional $1,125.

165. [165]
     This argument is based on the trust account statement issued by Mr Twohill on 4 March 1994, a copy of which is part of Exhibit 6. This statement shows a total in both columns of $327,329.49, but if one adds the figures in the first (or payments) column they come to only $322,329.49. If there was a total of $327,329.49 to be paid out, it followed that $5,000 remained unaccounted for, and that amount ought to have been divided between the husband and his mother as well. What is wrong with the argument is that the total in both columns of the trust account statement is wrong, being $5,000 too much. What I suspect happened was that the four figures in the first column were added incorrectly and the incorrect total was simply repeated in the second column without checking the addition of the two figures in that column. Had that addition been checked, it would have been obvious that the total of the second column was $5,000 too high, and that should have alerted whoever was preparing the statement to the fact that there had been an error of addition in the first column.

166. [166]
     However the error occurred, it remains the fact that each of the two columns in the trust account statement add to the same figure, a figure which is $5,000 less than the figure stated as the total for both. The settlement statement which is the balance of Exhibit 6 shows that the right hand column accurately reflected the amount paid on settlement by the purchaser, and the amount of the deposit.^[54]  Assuming that the various deductions in the settlement statement and the trust account statement were justified, the amount received by the husband as his share of the net proceeds of sale of the property was accurately disclosed to the Family Court. There was no error to be detected by the second defendant, and therefore there can be no question of any negligence in failing to detect it. The only errors were in the totals in the trust account statement from the husband's solicitor, and in the suggestion that an allegation of negligence against the second defendant could be based thereon. This ground fails.

Ground 6

167. [167]
     As best I could understand this ground, it is based on the proposition that on p.15 of Exhibit 7 the judicial registrar said that he was dividing the assets for distribution 53 per cent to 47 per cent in favour of the husband. Having concluded that the pool for division was $172,500, 47 per cent of that was $81,075, but the judicial registrar had fixed the money sum at $72,000 which when added to the value attributed to the motor vehicle ($8,500 p.8) came to $80,500. That was $575 short. I think that is the argument, although I confess I had some difficulty in understanding it, because it seems to me that, whatever the situation may be in other respects, it is quite clear that the judicial registrar’s judgment does not contain any arithmetical error.

168. [168]
     It is important to understand the way in which he arrived at his final figure. He did not achieve this by taking the percentage referred to, 47 per cent, of the figure he had found as the value of the asset pool. Rather he calculated a percentage of a rounded up figure for the husband’s share of the net proceeds of sale of the premises, and added to that figure the value of the car. Having found the pool to consist of only three items, he awarded the plaintiff 45 per cent of the first, 0 per cent of the second and 100 per cent of the third. That produced an overall outcome which was said in the first paragraph on page 15 to be approximately 47 per cent of the total. Clearly he did not reach the final figure by taking 47 per cent of the asset pool, much less 47 per cent of the net proceeds of sale of the property. The 47 per cent figure was one derived afterwards for the purpose of showing the overall effect of what he was ordering. The figure was then thrown out somewhat by the addition of a further $1,000, to accommodate the fact that there was potentially another $2,500 in the asset pool, subject to any claim by the purchaser in respect of damage to the property.

169. [169]
     In my opinion the second defendant cannot be criticised for failing to detect any error of calculation in the reasons of the judicial registrar. There was no error of calculation. This ground fails.

Ground 7

170. [170]
     The formal order of the Family Court reflecting the judicial registrar’s judgment was prepared in the registry and in due course posted to the plaintiff.^[55]  It is clear that that document ordered in paragraph 1 “that the husband pay to the wife the sum of $73,000 within 7 days of the date hereof.”  The seal of the Family Court of Australia, Brisbane Registry, has been stamped on the document which was sent to the plaintiff, presumably to indicate that it was a copy, made by the Family Court Registry, of the original order which would have been retained on the Family Court file. On the first page of the order the border of that seal overlaps the “3” of the figure “$73,000”. On the document Exhibit 3 that does not produce any confusion because that seal is in purple, whereas the rest of the document is in black.

171. [171]
     Apparently at some stage a photocopy of that page was made, and on the photocopy it became unclear whether the figure was $73,000 or $79,000. That led either the plaintiff or her recently acquired advisers to think that the figure may have been $79,000 and on the basis of that mistake to argue that the second defendant was negligent in failing to ensure that the husband paid the amount stated in the formal order of the court rather than the amount in fact ordered by the judicial registrar. In other words, on the assumption that there was a clerical error in the formal order as drawn up, the second defendant was negligent in failing to insist on the husband’s complying with the mistaken order for the benefit of the plaintiff.

172. [172]
     Even if there had been a proper factual foundation for that submission, I can scarcely conceive of a weaker basis for an allegation of professional negligence. However, once it was pointed out during submissions that examination of Exhibit 3 clearly showed that the formal order contained the figure $73,000, the point was speedily abandoned: p.325.

Ground 8

173. [173]
     The criticism here was that all that was put before the Family Court as to the respective earnings of the two parties was the table which became Exhibit 3 in the Family Court, a copy of which is Exhibit 83 before me, which does not contain any figures after June 1990. The problem with the document was not that the figures shown in it were inaccurate, but that the information put before the court stopped at that point: p.329. It was submitted that the second defendant was negligent in not putting before the court the plaintiff’s earnings in subsequent years, in order to show that after June 1990 she had made a greater contribution to the family finances, because her earnings were greater.

174. [174]
     It was certainly part of the plaintiff’s case before the Family Court that she had worked hard during the marriage and had made substantial financial contributions to the family: indeed her material contained allegations that she had been substantially supporting the family whereas the husband was largely retaining or using his income for his own purposes. The husband’s material contained similar allegations in relation to the earnings of the plaintiff. Ultimately, the judicial registrar found that both parties worked hard during the marriage and supported the family finances to the best of their respective abilities, and particularly commented on the efforts which the plaintiff had made in that regard, and accepted the second defendant’s argument that this was a significant factor. It is difficult to see how that position could have been improved upon by providing more information about the earnings after 1990.^[56]  The respective updated statements of financial circumstances showed that for  the period they covered the plaintiff’s income was greater.^[57]  There was no information about the position of the intervening two years^[58] before the court, but it is difficult to see how this could possibly have made any difference to the order the judicial registrar made.

175. [175]
     Providing more recent earning information would not have altered the fact that during the period of eight years covered by the table (Exhibit 83) the husband’s earnings were greater, sometimes substantially greater. Indeed, showing that more recently the plaintiff had a greater earning capacity than the husband was a two-edged sword. It may well have suggested that for a time at least (prior to the time when the marriage effectively broke down in the first half of 1993) the plaintiff had a capacity to make a greater contribution to family finances than did the husband, but on the other hand it showed that the plaintiff had a greater capacity to support herself after the marriage than did the husband, and therefore a greater capacity to accumulate assets in the future.^[59]  That is a factor which, to the extent that it was relevant, would have told against the plaintiff for the purposes of the property division.

176. [176]
     There was no evidence that a reasonably careful solicitor would have placed this information before the Family Court, and I certainly would not regard it as obviously negligent not to do so, for the reasons I have just given. There may well have been dangers in emphasising the greater earning capacity of the plaintiff compared with that of the husband in this way. I am not persuaded that it was negligent for the second defendant not to put the plaintiff’s earnings for the two missing years before the court. I note that, even if he had done so, without the cooperation of counsel for the husband the comparison would not have been complete, because the plaintiff was apparently not in a position to put the corresponding figures for the husband for those years before the court. It would not necessarily have helped to have cross-examined the husband; he might not have been able to recall what those figures were.

177. [177]
     Even apart from this however there is nothing in the reasons of the judicial registrar to suggest that, had material showing greater earnings on the part of the plaintiff during the relevant years been put before him it would have had the slightest effect on the order that he made. If there was negligence in this regard therefore I am not persuaded that the plaintiff has shown that she suffered any loss as a result. This ground also fails.

Ground 9

178. [178]
     The argument here is that the second defendant ought to have made more of the plaintiff’s allegation that she had been subjected to substantial harassment and indeed domestic violence from the husband, and that for a long time she had been living in fear of him. Whether that would have been of assistance, however, is difficult to know. There were certainly allegations in the husband’s material that he had been subjected to domestic violence and other forms of unpleasantness from the plaintiff, and no doubt had the issue been opened up more fully by the second defendant the result could easily have been a substantial conflict of evidence between the parties which the judicial registrar would have had no particular way of resolving, other than by concluding that the issue was really irrelevant to the matter that he had to decide.

179. [179]
     The proposition that domestic violence could be relevant in determining an apportionment of the matrimonial assets between husband and wife was not generally recognised by the Family Court until 1997, in the judgment of the full court in Kennon v Kennon (1997) FLC 92-757 where it was held to be relevant where it had an impact on a party’s contributions to the marriage: p 84,294, overturning earlier authority. Prior to that time, the emphasis was on avoiding using property division as punishment for past wrongful conduct, consistent with the general approach under the Family Law Act of “no fault divorce”^[60]. Accordingly, as at 1994 even if the plaintiff had been able to persuade the court that she was the victim and the husband was not, on the existing authorities that ought to have been disregarded. It was certainly not a case where what was done to her was interfering with her earning capacity.

180. [180]
     There was no evidence that the second defendant knew or was in a position to know that the plaintiff felt her health was being adversely affected, because there is no evidence that the plaintiff ever told him that the stress of the situation was stirring up her thyroid condition. Indeed, Dr Comty’s reports suggest rather that her thyroid condition remains stable, but she was suffering various symptoms simply because of the stress that she was under. That may well have been most unpleasant for her, but it is not the sort of injury to health that might have been regarded as relevant to the division of property. The plaintiff’s material before the Family Court did refer to her Graves Disease, and suggested that it had, if anything, a somewhat greater adverse impact on her than Dr Comty’s reports indicated.

181. [181]
     There is no evidence that a reasonably competent and careful solicitor would have made more of the plaintiff’s allegations that she was the victim of domestic violence in her property dispute in the Family Court in 1994. I do not regard it as negligent.^[61]  On the contrary, I regard it as being obviously not negligent, and indeed quite proper not to go on about something which on the existing law was not regarded as relevant. It is not to the point that the approach of the Family Court changed in Kennon; that was not until later, and was said to reflect a change in attitude on the part of the court, as the significance of the original “no fault” philosophy faded with time, and there came to be a greater recognition of the significance of domestic violence within the community generally^[62]. I do not consider there was any negligence on the part of the second defendant in this respect. There is certainly no basis for thinking that, had greater emphasis been placed on this matter in this case, it would have had any effect on the decision of the judicial registrar. This ground also fails.

Additional Grounds in Reply

182. [182]
     There were two other matters raised in written submissions in reply by counsel for the plaintiff: that there was negligence in the failure to recommend acceptance of the husband’s offer of 3 November 1993, and that there was negligence in not allowing the plaintiff’s support person, Ms Page, to remain with her during the hearing in the Family Court on 12 April 1994. I can deal quickly with these two new issues, although strictly speaking they ought not to have been raised at that stage as they are not included in the clarification of particulars document. As to the former, the husband conceded that he did not advise acceptance of that offer, and with hindsight it can be seen to have been a favourable offer which ought to have been accepted.^[63] 

183. [183]
     At that stage however the husband had not disclosed the existence of a will, and the plaintiff had instructed the second defendant that there was no will and that the husband was the sole beneficiary. If that had been the case, the offer would have been inadequate. In circumstances where the husband had not discovered the will or specifically alleged prior to the time that the offer was made that there was such a will in existence, in my opinion it was not negligent not to advise acceptance of that offer during the time when it remained open.^[64]  In any case I am satisfied, in the light of the evidence which I accept as to the plaintiff’s attitude, that even if he had have given that advice the plaintiff would have rejected it, and that therefore even if there had been negligence in not giving that advice, no loss is shown to have followed.

184. [184]
     As to the latter, it was a mistake to tell Ms Page that she could not come into the court. It is not every mistake that amounts to negligence. The Family Court did for many years sit as a closed court. However, it had been generally sitting in open court for some time before this hearing, and on the whole I consider that this did involve negligence on the part of the second defendant. There is however no reason to think that that in itself was in any way connected with any psychological problems the plaintiff had,^[65] or in any other way caused her loss or damage.  There was no evidence to support such a connection.  No loss or damage flowed from it, so there was no actionable negligence. Nominal damages might be awarded for breach of contract, but that would have required an amendment to the particulars provided on the second day of the trial, which was not sought, and in my opinion an amendment should not be granted at such a late stage merely to add a basis for an award of nominal damages.  These additional allegations also fail.

General Comments on Negligence

185. [185]
     On a general level, there is, in my opinion, no significant criticism which can be made of the way in which the second defendant prepared and argued the plaintiff’s case in the Family Court. In these circumstances, it is unnecessary for me to consider the defence of advocate’s immunity, which was relied on by the defendants. The fundamentals of the situation were not able to be changed: there was a substantial disparity in the initial financial contributions of the parties to the property available for distribution, which the plaintiff never disputed, and which was a matter of some importance. There was a dispute between the parties as to the extent to which each of them had been contributing by way of supporting the family or otherwise during the marriage; the second defendant put the plaintiff’s case and, insofar as it was that she had made a much greater effort and much greater contribution than the husband, that case was unsuccessful. It is not obvious, however, what more could have been done to advance that case.

186. [186]
     Insofar as it was part of the plaintiff’s case that she worked hard throughout the marriage to provide financial support to the family, that part was accepted. What the judicial registrar did not accept was her criticism of the efforts and contribution of the husband; on the other hand he did not accept the husband’s criticism of the efforts and contribution of the plaintiff. That at least had the virtue of being a balanced approach. Disputes of this kind, which essentially come down to conflicting assertions by the parties, are difficult to resolve in any other way.

187. [187]
     Initially the plaintiff’s application was advanced on the basis that she had the care and control of the three children of the household: Exhibit 31, par 4. However, by the time of the trial in the Family Court the two boys had left home, and the husband had been able to raise a plausible dispute about the question of custody of the daughter, so that that element in the plaintiff’s case was neutralised. It is not apparent that there was anything the second defendant could do about that. If it was tactical on the part of the husband or his advisers, it was good tactics which worked, and there was no obvious way it could have been countered. But the facts that the husband later obtained custody in proceedings in respect of custody of the daughter, and the daughter subsequently lived with the husband until relatively recently, suggest that this was not tactical; it was a reflection of genuine affection between the daughter and the husband. Whatever the truth of the matter however there is nothing the second defendant could have done to change that situation.

188. [188]
     In the absence of evidence to the contrary, I should proceed on the basis that the decision of the judicial registrar was the result which ought to have been obtained by the proper application of the Family Law Act and the established principles in the Family Court for the determination of property disputes, given the circumstances found in this dispute. If a party wishes to allege, in proceedings such as the present, that there was something unusual or inappropriate about the decision, or that a more favourable decision could have been obtained by conducting the case in a different way, that in my opinion ought to have been the subject of expert evidence. It was not. Apart, however, from my general impression that the outcome in the Family Court was the result of a conventional application of the ordinary principles applied in respect of property divisions in that court at the time,^[66] I have the benefit of a limited review of the decision of the judicial registrar by the Family Court in 1998 when the plaintiff appealed against the order that she provide security for costs in respect of her application to review the judicial registrar’s decision, in effect to appeal the decision to a single judge of the Family Court.

189. [189]
     In considering that appeal, the full court said at p.85,507: “The prospects of success is a relevant matter to take into consideration. However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated there is a high probability of success or failure. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the cases sought to be made out, are set out.” The court then went through the various grounds in the Notice of Appeal filed on behalf of the plaintiff, and analysed each of them in some detail. One of those grounds relied on was that “the Trial Judge [that is the Judge hearing the application] failed to properly identify and evaluate the relevant factors upon which his discretion was to be exercised.” The court regarded this as the most significant of the grounds relied on, and analysed it in some detail.

190. [190]
     The Full Court noted that the trial judge had “found that the wife could point to no evidence to suggest that the order of the judicial registrar was wrong”: p.85,509. The court went on to consider one aspect of the decision of the judicial registrar, and noted that in relation to the question of superannuation benefits he took into account that the value of the superannuation entitlement of the husband was greater than that of the wife (as I have noted earlier). The court said that the merits of the wife’s application to review the decision of the judicial registrar and the prospects of success of that application were relevant in this regard: p.85,510. If there had been anything seriously wrong with the decision of the judicial registrar, it is difficult to believe that that would not have been mentioned by the Full Court as a relevant factor in such circumstances^[67]. My impression of the judgment of the Full Court was that the plaintiff had been unable to show any significant reason for doubting the correctness of the decision of the judicial registrar. In these circumstances, the absence of expert evidence is particularly significant.

191. [191]
     The real problem for the plaintiff is that she went into the property division application with an unrealistic expectation as to its outcome, because she believed that the whole of the net proceeds of sale of the property ought to be treated as part of the property available for division. If she believed that the husband’s mother was not of testamentary capacity and had never made a will, that may well have been a reasonable expectation to have, but once it became apparent that there was a valid will leaving her estate away from the husband, that approach became clearly inappropriate. From then on, the plaintiff was attempting to defend what was really an indefensible position.

192. [192]
     There was no evidence to suggest that the will of the husband’s mother, which on its face was made in 1984 (Exhibit 82), was not genuine. It does not appear that the plaintiff ever had any evidence that the will was a forgery, or any basis other than her suspicion of and hostility towards the husband for thinking that it was or might have been. The will was apparently made about two years after the plaintiff married, and is consistent with the evidence from both parties to the Family Court that the plaintiff and the husband’s mother never got on well. The will may well have been a deliberate exercise on her part at that stage to ensure that the plaintiff did not get any benefit from her property, based on the assumption that the marriage would be continuing at the time of her death. There are other possible explanations. A genuine will in these terms is therefore plausible, and there is no evidence that this will was not genuine. The second defendant did not dispute the genuineness of the will during the trial at the Family Court, but there is nothing whatever to suggest that if he had disputed it the outcome would have been any different.

193. [193]
     After the Family Court trial, the plaintiff continued to maintain that she ought to have obtained a greater share of the matrimonial property because the whole of the proceeds of sale of the premises ought to have been treated as part of the matrimonial property. That confirms that her attitude at the trial was unrealistic. When the plaintiff gave particulars of the “loss of matrimonial property” which she alleged in the amended plaint file on 22 April 1998 part of a loss was identified as “50% of matrimonial home estimated at being sale price $350,000 minus $23,000 mortgage being $327,000 divided by 2 equals $163,500”.^[68]   This ignores the fact that the husband was entitled to only one half of the net sale proceeds of that property, as well as the fact that the plaintiff had already received 45% of that half interest. That was the major factor in producing an outcome where the plaintiff received a cash payment of $73,000 rather than the $150,000 that she said she had been expecting: p 20. She may well have had that expectation, but it was clearly unrealistic once the husband had produced the copy of his mother’s will. 

194. [194]
     I do not accept that thereafter she had that belief because of anything done or omitted to be done by the second defendant. The fact that she apparently retained that belief even after the judicial registrar made it clear that in his view the mother’s interest in the property was irrelevant, and explained why there was good reason for that attitude, was consistent with her having persisted in her attitude after 7 December 1993, notwithstanding the advice of the second defendant that in the light of the will the offer made by the husband would be a good basis for settling the matter. However, I accept that it was the plaintiff’s response at that stage to insist on not settling unless the original will was produced. The husband had no reason to be concerned to produce the original will, so that never happened.

195. [195]
     It may be that the husband’s omission to disclose the will until after the offer had expired was tactical: that offer was low on the assumption that the plaintiff and the second defendant were working on, that the husband was his mother’s heir. By not disabusing them of that belief until after the offer had expired, the husband obtained some protection in relation to costs. I would think however that if the plaintiff had sought to accept the settlement offer after the copy will was disclosed, and was unsuccessful, she could have made an offer to settle in similar terms at that stage, and that I suspect would have made it unlikely that an order that she contribute to the husband’s costs would have been made. But I am satisfied that it was the plaintiff who was unwilling to settle at that stage, not the second defendant.

196. [196]
     Overall therefore I am not persuaded that there was any negligence on the part of the second defendant, either on any of the specific nine bases alleged in the “Clarification of Particulars” document, or on any other basis which might have been covered by the very general particulars pleaded. For the same reasons, I find that there was no breach of the implied obligation to exercise due care and skill in the contract of retainer between the plaintiff and the first defendant.^[69]  The nine specific grounds argued cover most of the particulars of breach of contract of retainer in paragraph 17 of the Amended Plaint filed on 18 November 1998.  The remainder can be speedily dealt with. It is not correct that no discovery of the husband’s documents was made. The husband provided discovery, and his documents were inspected.  The second defendant did seek the plaintiff’s instructions on 12 April when appropriate, and it is clear from the transcript Exhibit 54 that she gave them, and the second defendant then relayed them to the judicial registrar in her presence.^[70]  The orders made on 12 April 1994 were largely not made by consent; when they were made by consent, in respect of certain chattels, I am satisfied that they were in accordance with the plaintiff’s instructions. There was no client care letter delivered; it has not been shown that this was a requirement of the contract, nor that any loss or damage was suffered by the plaintiff as a result of the failure to deliver that letter. There was no costs agreement entered into; it has not been shown that it was a term of the contract that one would be entered into, nor that the plaintiff has suffered any loss or damage as a result of this omission. The allegations of negligence and breach of contract therefore fail.

Claim under the Fair Trading Act

197. [197]
     This claim is based on the proposition that both the first defendant and second defendant represented that the second defendant was a barrister, which was not true. I am not persuaded that that representation was ever made by either of them, and therefore that claim fails. In any case, I am not persuaded that the plaintiff has proved any loss as a result of the representation. Even assuming that, if that representation had not been made, someone other than the second defendant would have had the conduct of the matter on behalf of the plaintiff (either the first defendant with the assistance of a barrister, or perhaps another solicitor or solicitor and barrister), there is no reason to think that the outcome for the plaintiff would have been any better. Someone else might have sought to advise her in robust terms against proceeding on the basis that the whole of the proceeds of sale of the property ought to be treated as matrimonial property, but on my assessment of the plaintiff that would not have changed her attitude. Even if I had been satisfied that there was misleading or deceptive conduct in making such a representation, I am not satisfied that the plaintiff has proved that any loss was suffered by her as a result.

198. [198]
     In these circumstances I do not think there is any point in my considering the issues which were raised by the defendants in response to this part of the claim, that anything done by the defendants was not conduct in trade or commerce within the meaning of that term in the Act, that the Act does not apply to professional activity, and that any such cause of action was statute barred.

Psychiatric injury

199. [199]
     I have referred already to certain difficulties with the psychiatric evidence, in relation to the question of causation. Apart from that however, there is the difficulty that a claim for damages for psychiatric injury, in circumstances where there has been no physical injury, is subject to particular limitations, one of which is that it is not available unless it is reasonably foreseeable that a person of a normal fortitude could suffer psychiatric injury in such circumstances: Hancock v Nominal Defendant [2002] 1 QdR 578 at p 609 per Byrne J, and see p 591 per Davies JA;  Tame v New South Wales [2002] HCA 35.^[71]  This applies at least unless the defendant knew in advance that there was some particular susceptibility on the part of the plaintiff to psychiatric injury: Jaensch v Coffey (1984) 155 CLR 549 at 568, Wodrow v Commonwealth of Australia (1993) 45 FCR 52. This is a difficulty for the plaintiff in the present case, since there is no evidence that a person of normal fortitude could suffer psychiatric injury as a result of losing a contested application for property division in the Family Court, or for that matter failing to avoid that result because of inappropriate advice by a solicitor prior to the hearing. In Hancock (supra) the successful plaintiff had the benefit of factual findings based on psychiatric evidence which led to a conclusion that it was reasonably foreseeable that a person with normal fortitude would suffer psychiatric injury from the particular event that plaintiff experienced. There is no similar evidence in the present case, and I certainly would not be prepared to find that a reasonable person in the position of the second defendant ought reasonably to have foreseen that a person of normal fortitude might suffer psychiatric injury in such circumstances.

200. [200]
     The defendants also submitted that there was no one sudden event which was identifiable as the particular “sudden sensory perception” which has been understood as being a requirement for liability for psychiatric injury independent of physical injury: Hancock (supra): p 590-1. However, this limitation was rejected by the majority in Tame v New South Wales [2002] HCA 35.

201. [201]
     Accordingly, even if there was negligence on the part of the second defendant, the second defendant would not be liable for any psychiatric consequences of that negligence.

202. [202]
     With regard to the claim for breach of contract, there is no reason in principle why the control mechanisms in Tame (supra) and Wodrow (supra) would not apply equally: the latter was an action by an employee against an employer, where there was a contract. What was said there and in Jaensch (supra) about a person of normal fortitude is relevant to the standard of care owed, which would apply whether the obligation to take care arose in tort or in contract. Accordingly, damages in respect of psychiatric injury are not available for the claim for breach of contract. There was no suggestion that any psychiatric injury was in any way attributable to any misrepresentation about the second defendant being a barrister, so the psychiatric injury could not be attributable to that. Although Dr Lichter referred to this matter in his report Exhibit 22, he did not say that it was a cause of the adjustment disorder.

203. [203]
     It follows that, if on the evidence the plaintiff had otherwise a good cause of action, damages would not have been awarded in respect of any psychiatric injury.

Claim for emotional distress

204. [204]
     It was submitted that it was open to award damages for breach of contract^[72] for something less than the psychiatric injury, on the basis adopted by the High Court in Baltic Shipping Co v Dillon (1993) 176 CLR 344. That case involved damages for breach of contract against a shipping company by a passenger who had been carried on a cruise when the ship struck a rock and sank. The damages recovered by her included an amount for disappointment and distress, and various members of the High Court referred to the restrictions which apply when damages of such a nature are claimed in actions for breach of contract.

205. [205]
     Mason CJ at p 365 said that damages for disappointment and distress are not recoverable unless they relate to some physical inconvenience (or personal injury) caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation. The approach of Brennan J, p 371 was similar, and in respect of this aspect of his judgment, Toohey and Gaudron JJ agreed with the Chief Justice: p 383, 387. Deane and Dawson JJ also said that that case was one where the defendant had expressly or impliedly agreed to provide pleasure entertainment or relaxation or to prevent molestation or vexation: p 381-2. McHugh J at p 405 said that damages for distress or disappointment would be recoverable if there was breach of an express or implied term to provide pleasure or enjoyment or personal protection or if consequent upon the suffering of physical injury or physical inconvenience. These various formulations of the test are all quite similar.

206. [206]
     A contract to provide legal services in connection with an application in the Family Court can hardly be described as one to provide enjoyment or relaxation, or indeed freedom from molestation in the sense of freedom from stress, or freedom from the prospect of an adverse outcome. There was no evidence that it was an express term of the contract of retainer in the present case that the first defendant was guaranteeing the plaintiff a successful outcome in any such proceedings, and no such term would be implied in a contract of this nature.

207. [207]
     The plaintiff also relied on Heywood v Wellers [1976] QB 446 where a plaintiff recovered damages for mental distress, suffered as a consequence of being molested, from a solicitor who had negligently failed to obtain an injunction to protect the plaintiff from molestation. That in my opinion is a different situation from the present. In that case the plaintiff would have obtained the injunction but for the negligence of the solicitor, and there was a finding that if it had been obtained the mental stress would have been avoided. Clearly in those circumstances the damages were compensating the plaintiff for the very loss from which the contract was intended to provide protection, but that is not the case here.^[73]  

208. [208]
     Although the defendant admits that there was a retainer in respect of domestic violence matters as well as the application in the Family Court, all that the first defendant did in respect of that aspect of the retainer was on one occasion have the second defendant appear in the Magistrates Court in relation to some domestic violence proceeding: p 244.^[74]  There is no evidence that there was anything done or not done by the second defendant on that occasion which had any adverse impact on the plaintiff. By and large insofar as there were proceedings involving domestic violence disputes being carried on at the same time, they were carried on by the plaintiff personally. When asked what more the second defendant could have done to protect the plaintiff from violence and molestation from the husband, counsel for the plaintiff was unable to suggest anything specific: p 331. In so far as the concern was to protect the plaintiff from molestation by the husband, I am not persuaded that the plaintiff has shown that there was any negligence or breach of contract, so there is no question of allowing damages for breach of contract under this heading.

209. [209]
     In my opinion the present case is not within the categories identified in Dillon. In the present case if I were persuaded that there was negligence or breach of contract and that the plaintiff had suffered psychiatric injury as a result, damages would have been awarded on the basis of all the damage and stress associated with a psychiatric injury. There would in my opinion be nothing else to be covered by some additional allowance for distress and disappointment. But even apart from any question of any technical restriction on damages of that nature, I am not persuaded in this case that the distress and disappointment suffered by the plaintiff was caused by any negligence or breach of contract on the part of the defendants.

Quantum  -  precautionary assessment

210. [210]
     I should make a precautionary finding in relation to damages, in case it may be determined elsewhere that the plaintiff is entitled to recovery in respect of the psychiatric condition identified by Dr Lichter. I accept the plaintiff has been suffering from an adjustment disorder, although in my opinion that was not a particularly serious psychiatric condition at least until she finished work in about the middle of 1997. She was not forced to give up the earlier work because of the psychiatric condition; rather that employment came to an end because she was no longer needed to fill in for someone who had been on leave. The effect of Dr Lichter’s evidence is that, when the plaintiff ceased to be able to work, her condition deteriorated because she was deprived of that coping mechanism, and I accept Dr Lichter’s evidence that the plaintiff currently is unable to work in the area where she has relevant expertise: p 132. However, he was of the opinion that the plaintiff should be able to return to work in about six to twelve months after the resolution of the proceedings: Exhibit 22. That would mean that she would have been out of work for about six years.

211. [211]
     However, the matter is complicated by the fact that he associated the condition as well with her persistent litigation. Although on the theory advanced by the plaintiff some of these would have been unnecessary, such as the proceedings seeking review of the decision of the judicial registrar and the associated applications and appeals in relation to security for costs, there is no reason to think that the dispute over custody would have been avoided, or the other disputes with the husband. The plaintiff would be likely to have had some significant ongoing litigation in any event, and there is a real risk that the plaintiff’s psychiatric condition may have been produced in any event by the stress associated with these, perhaps in conjunction with her thyroid condition. I think that in the present circumstances more than usual discount for the vicissitudes of life should be made in respect of that period.

212. [212]
     The plaintiff said that after April 1994 her emotional state had fluctuated: p 43. She felt fortunate that she had work to keep her from focussing on her distress, but while she was still at work she was receiving counselling, and was not functioning at the level she had been before: p 33. The plaintiff said that she had been getting panic attacks (p 53), when she feels terrified and gets chest pain, and she has been using techniques taught her by Dr Lichter to control these: p 54. She is very sensitive and has bouts of depression for which she takes medication, which has produced a drastic improvement: p 58. Before this improvement she had been very tearful and reclusive: p 57. However, according to the reports of Dr Comty the plaintiff had earlier been suffering from panic attacks, possibly associated with her thyroid problems: Exhibit 46. The plaintiff was unable to explain to what extent they had been occurring then: p 158. The plaintiff is still on medication for her thyroid condition, although the particular problem with it has now changed: p 221.

213. [213]
     The plaintiff said that she does not function anymore the way she used to (p 60) and she has difficulty in working with people and mixing with people, because she is emotionally vulnerable and this has adversely affected her lifestyle: p 61. When she had been working she had been able to deal with the public, but could not cope with any conflict, and that was a concern to her. More recently she had been told by Dr Lichter that she was not ready to return to work, and she had accepted that and as a result not sought work: p 281. She has considered pursuing further studies: p 206.

214. [214]
     During the trial the plaintiff appeared to become upset or flustered at times, and on one occasion a short break was taken while she recovered her composure. In general however, my impression was that she coped very well with a lengthy and fairly gruelling cross-examination. Whether this was a function of the success of the treatment she has received, I cannot say.

215. [215]
     The plaintiff was born on 21 September 1952 (Exhibit 42) and is almost 50. Her condition has been significantly improved by both the medication and the treatment received from Dr Lichter, so that after she began to see him in November 1998 her condition would have become significantly better. It was therefore at its worst for about 1½ years. Damages for pain and suffering and loss of amenities in a matter of this nature are necessarily difficult to assess because of the nature of the injury and the lack of precedents. In Hancock (supra) the plaintiff had suffered what seems to me to be significantly worse mental trauma, and had been suffering from chronic post-traumatic stress disorder, which was expected to last for about seven years, and was awarded general damages of $40,000. The Court of Appeal did not regard those damages as manifestly excessive, although it was conceded on behalf of the plaintiff that the amount was towards the upward end of the range of damages at that time: p 605. What emerges from the report of that decision is that that plaintiff was significantly worse off than is the plaintiff in this case.

216. [216]
     In Keeys v State of Queensland (Plaint 1544/95, 14/11/96, unreported) I awarded general damages of $15,000 to a police officer who had suffered post-traumatic stress disorder as a result of being very narrowly missed when he had been shot at. In that case the trial occurred about two years after the incident, and I expected that by the time of the trial most of the plaintiff’s suffering was behind him. I think that that plaintiff’s condition would have been worse for a time, but it did not last as long as did the present plaintiff’s. An appeal was brought against that decision; however neither party raised the question of damages.

217. [217]
     In all the circumstances, I would assess damages for suffering and loss of amenities at $17,000. I would apportion $15,000 of that to the past, and would allow interest on that sum at 2 per cent.

218. [218]
     With regard to economic loss, the plaintiff in Exhibit 17 has calculated her loss by reference to the difference between “net earnings” (gross earnings), and the amount provided in the Nurses Award (Exhibit 20), but the figure that the plaintiff has adopted for the purpose of comparison is the figure for a charge nurse, nursing supervisor or nurse educator (with diploma). It does not appear to me that the plaintiff has ever worked in any of those positions, and there is no reason to think that she would have been working in a position of that nature but for her psychiatric condition. The plaintiff has been working out of the hospital system since July 1982, and I think it really quite unrealistic to expect that she would have moved back into it but for this. There may well have been periods of unemployment, or part time work, anyway. In my opinion the earning level being achieved in the period from July 1991 to June 1995 was the best indication of the sort of income level that the plaintiff would have been likely to be achieving if not for that condition. This is not a case where the plaintiff can show that, but for the psychiatric injury, she would necessarily have been doing a particular job at a particular salary during the whole of the relevant period. What the plaintiff has lost is properly identified as the chance that but for the actionable conduct she would have been in employment and earning income during that period of six years.

219. [219]
     The figures suggest an after tax earning level of about $23,000 per annum prior to June 1995. There was therefore no loss for the 1994-95 year, and the loss during the 1995-96 financial year was $2,650. Doing the best I can, I am not persuaded that the loss during the following financial year was any more than $3,000, but I accept that there has been thereafter little or no income apart from social security benefits (which have to be ignored except for the purpose of calculation of interest). Assuming that the income loss continues until June 2003, that produces a loss of income of $143,650.

220. [220]
     However, in my opinion for the reasons I have given there needs to be a substantial discount to this amount. In all the circumstances and doing the best I can I would allow $75,000 for economic loss, most of which is attributable to the past. Bearing in mind the amount of social security benefits that the plaintiff has received, it is an appropriate course in this case not to allow any interest in respect of economic loss.

221. [221]
     The plaintiff also claimed in respect of medical expenses.^[75]  The plaintiff paid for counselling from the psychologist, Ms Davis, a total of $225, and I would allow that. The charges of a general practitioner and Dr Lichter were bulk billed to Medicare, and, although that amount would have been refundable if it had been recoverable from the defendants, there is no evidence of what the amount is, so I cannot allow anything for that. The plaintiff also claimed in respect of medical expenses three treatments of “therapeutic massage” in 1999. There is no evidence that that was reasonably necessary medical treatment and I will not allow it. I will allow $98 for Zoloft, but I will not allow Thyroxine because that is a treatment for the thyroid condition (p.221) which was an independent and pre-existing condition. For future expenses, I would allow $800 for another twelve (12) consultations with Dr Lichter, and another $35 for medication.

222. [222]
     The plaintiff also claimed the cost of a wide range of activities under the heading “rehabilitation”. This included “beauty therapy” sessions at the Gold Coast College of TAFE, payment to “School of Philosophy Inc.” in NSW, abseil experience (a half day course), what were described by the plaintiff as therapeutic workshops at the Tracey Saywell studio, but which were referred to on the receipt as sewing lessons, payments for an “Alpha” course which I understand is an introductory bible study course run by some churches, and charges for a health club: Exhibit 24. There is no evidence that any of these things were reasonably necessary by way of treatment or rehabilitation and I will not allow any of them. It seems to me that they were merely recreational activities.

223. [223]
     There were also a wide range of expenses claimed under the heading “miscellaneous”. This includes the costs of transcripts of proceedings in the Family Court and for some interlocutory applications in the present case, costs of searches in the titles office and the Supreme Court, bailiff’s service fees for various proceedings and various other expenses apparently associated with this action. Insofar as they relate to expenses properly incurred in respect of the present action they would be recoverable if at all only by way of costs. There is no basis upon which I can relate any of them to subsequent proceedings in the Family Court in respect of the property division dispute. I do not accept that any other legal proceedings could be in any way related to anything the defendants did or did not do. I will not allow any amount for this part of the claim.

224. [224]
     The plaintiff also claimed for reimbursement of legal costs, including the costs paid to the first defendant ($12,226.93),^[76] and the $5,000 contribution of costs paid to the husband, and other legal costs subsequently paid to other people. If there had been negligence on the part of the defendant which had rendered the legal assistance provided in relation to the property dispute of no value, then that amount would have been recoverable,^[77] and if but for the negligence of the defendants the plaintiff would not have been required to make that payment of $5,000, that amount would also have been recoverable, but I am not satisfied that either of these situations has been established. If the matter had been settled in December 1993 or early in 1994, there would have been some costs saved. This amount was not quantified, but I will allow $5,000.

225. [225]
     There were fees paid to Philippa Power & Associates, Lawyers, which the plaintiff said related to an application the husband made to obtain a passport after the plaintiff had taken some step which would make it more difficult for him to obtain one: p 209. That had nothing to do with anything the defendants did or did not do. There was a fee of $700 paid to a barrister for an appearance in the Magistrates Court on 4 April 1995 (Exhibit 23) which the plaintiff said was related to domestic violence: p 209. The barrister was instructed by Philippa Power & Associates, hence the fees of that firm in April 1995: Exhibit 23. There were further fees from that firm in relation to a hearing on 4 July 1995 in the Family Court (Exhibit 23) but it is not clear to what that relates. There were fees to C R Smith & Associates of $270, which related to a domestic violence matter: Exhibit 23, p 209. Again, these had nothing to do with anything that flowed from the property dispute. There had been a long history of domestic violence disputes prior to then.

226. [226]
     There were a number of consultations with Hutcheons, Solicitors, most of which are identified simply as advice or legal advice, but a couple of the receipts refer to a Family Court matter, and the timing suggests that this might be assistance related to the conduct of the custody dispute. In any case there is no evidence that they are related to anything relevant. In 1998 and 1999 there were various amounts of costs which the plaintiff was ordered to pay to the husband. One of these related to an urgent spousal maintenance application which was unsuccessful (p 208) and that amount would not be recoverable, but amounts of $200 and $500 related to Full Court proceedings, presumably the appeals against the orders for security for costs, which were related to the property division application. Those are the only legal costs on this list which can be so related.

227. [227]
     There were a number of fees paid to another barrister in 1999 for a spousal maintenance dispute (Exhibit 23, p 208) and payments to another barrister in 1999 and 2000 and 2001 for other Family Court applications, an interim application on 25 November 1999, a magistrates court summons on 7 April 2000, and a fee to appear in the Family Court on 1 May 2001: Exhibit 23. These were said to relate to attempts to obtain money from the husband’s wages: p 208. They have nothing to do with anything the defendants did or did not do. Also included in this list are some fees paid to counsel who appeared for the plaintiff in the present action, which could only be recoverable as costs of the action, and the payment for Dr Lichter’s medical report which is in the same position, and various other miscellaneous expenses apparently associated with the plaintiff’s conduct of this or other litigation, none of which is recoverable as damages. There is a claim for numerous amounts paid on numerous occasions, starting apparently on 9 March 1994, for telephone, train, petrol, parking, postage and photocopying expenses, but obviously many of them relate to other disputes with the husband, and there is no way I can relate any of them to anything the defendants did or did not do. There were numerous receipts to support this expenditure included in Exhibit 24. That covers all of the amounts claimed in the updated statement of loss and damages: Exhibit 25.

228. [228]
     I summarise my precautionary assessment of damages as follows:

Conclusion

229. [229]
     For these reasons, the plaintiff’s claim is dismissed with costs.