Supreme Court New South Wales Medium Neutral Citation: Murphy v Gillis and Ors [2022] NSWSC 184 Hearing dates: 5, 6, 7, 8, 9, 13, 14, 16, 19, 20, 21, 22 August 2019; 11, 12, 13, 14, 15 November 2019; 23 May 2020 (further written submissions) Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) Judgment for each defendant against the plaintiff; (2) The plaintiff to pay the defendants' costs; (3) Liberty to apply on a date to be arranged with my associate. Catchwords: TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Federal Court Rules 2011 (Cth) Trade Practices Act 1974 (Cth), s 52 Cases Cited: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Donnellan v Woodland [2012] NSWCA 433 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 Lavars v Gillis and Ors [2022] NSWSC 13 Moore v Gillis and Ors [2022] NSWSC 14 Murphy v Westpac Banking Corporation [2014] FCA 1104 Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266 Paris v Stepney Borough Council [1951] AC 367 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Studer v Boettcher [2000] NSWCA 263 Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33 Texts Cited: Nil Category: Principal judgment Parties: Louise Murphy (Plaintiff) Michael Joseph Gillis (First Defendant) Gana Holdings Pty Ltd (Second Defendant) Gana Holdings Pty Ltd as trustee for Gana Holdings Trust trading as Gillis Delaney Lawyers (Third Defendant) Representation: V Gray with Mr J Raftery (Plaintiff) L Gyles SC with A Cameron (Defendants) Solicitors: Somerset Ryckmans Lawson (Plaintiff) Kennedys (Defendants) File Number(s): 2017/352141 Publication restriction: Nil Judgment 1. Ms Murphy's claim for damages against the defendant legal practice ("the legal practice") is another of the five related matters heard together by me, of which I have first given judgment in the claim brought by Ms Lavars (Lavars v Gillis and Ors [2022] NSWSC 13 ("principal judgment")). Evidence in one case stood as evidence in the others. Like the other plaintiffs, the basis of Ms Murphy's claim for damages from the legal practice is its alleged negligence in providing legal advice relating to the settlement of proceedings brought separately by each of them, but heard together, in the Federal Court of Australia for the recovery of employment benefits due on termination of employment, damages for wrongful dismissal, and damages, alternatively, for the tort of deceit, the tort of negligent misstatement, or the statutory cause of action created by ss 52 and 82 Trade Practices Act 1974 (Cth) ("TPA"). 2. The termination of Ms Murphy's employment by way of retrenchment or redundancy resulted from the merger of her then employer, St George Bank ("SGB") with Westpac Banking Corporation ("Westpac") occurring in the period from 2008 to 2010. After accepting redundancy Ms Murphy's last day of employment was 19 December 2010. 3. Ms Murphy consulted the legal practice, and in particular Mr Gillis, in or about August 2009 (Affidavit Louise Murphy sworn 12 July 2018, CB 1, tab 28, p. 330 [12]). Ms Murphy was aware from her continuing social contacts with several ex-SGB employees who had also been made redundant that they had retained Mr Gillis to act on their claims for unpaid entitlements. Federal Court proceedings were commenced on behalf of Ms Murphy on 13 October 2009. Westpac was ultimately substituted as respondent for SGB. 4. Ms Murphy's claim impugns the advice given by the legal practice, and in particular by Mr Gillis, in relation to the attempts to compromise her Federal Court proceedings in December 2011. Various grounds are relied upon. It is worth noting now that an aspect of the claim made on Ms Murphy's behalf relates specifically to the alleged inadequacy of the advice given in the same period in relation to the risks involved in bringing and maintaining the claim for deceit. She has this in common with Mr Lawson and Mr Wittenberg. 5. Ms Murphy advances three claims: first, a claim that the advice given in relation to an offer to compromise made under the Federal Court rules on 2 December 2011 following a mediation was negligently given; secondly, a claim that the advice given in relation to what has been referred to as "the global offer" was either negligently given or given in breach of the legal practice's fiduciary obligations; and, thirdly, a claim of the negligent failure to give adequate advice about the costs risk relating to the maintenance of the claim in deceit. Her case is that as a result of the legal practice's negligence, whether in contract or in tort, or breach of fiduciary duty, she suffered the loss of a real and valuable opportunity to settle the Federal Court proceedings in December 2011 on terms more favourable than the judgment she ultimately obtained. Her claimed losses include the adverse costs orders made in the Federal Court on 27 March 2015 and the wasted costs paid to the legal practice after rejection of the offer to compromise, which in accordance with terms of the relevant Federal Court rules relates to costs incurred after 11 a.m. on 6 December 2011. 6. As I observed in my principal judgment (at [5]), although heard together each case is essentially different and the outcome in each turns upon its own facts. For this reason, I have decided to deal with each matter in a separate judgment. In my principal judgment, I stated the principles of law which are equally applicable to each case and identified common facts which form part of the context for all. I will apply those legal principles in this case without repeating and reciting them in the body of this judgment. Although I will bear in mind that Ms Murphy claims that at the material time when the impugned advice was given, she was suffering from a particular or special vulnerability of which the legal practice and Mr Gillis knew or ought to have known. She argues that this consideration enhanced what reasonable care called for in her case: cf Paris v Stepney Borough Council [1951] AC 367. 7. As evidence in one case stands as evidence in the other, so far as is relevant to each case individually, I propose to incorporate by reference to findings made in my principal judgment common findings of fact referrable to Ms Murphy's case without re-evaluating the evidence supporting those findings. It follows that this judgment assumes familiarity with the principal judgment. 8. The applicable principles of law governing the law of negligence are set out in the principal judgment at [6] – [24]. The principles of law relevant to the claim for breach of fiduciary duty are summarised at [152] – [156]. 9. In her statement of claim, Ms Murphy made other claims relating to what was styled "excessive charging and improper application of trust funds in relation to acting in other matters in 2013 to 2017" (statement of claim [52] – [78]). These claims relate to the sale of her home, the early release of superannuation funds and a claim for total and permanent disability benefits under a policy of life insurance. These claims were not pressed at the hearing, and I was informed that subject to agreement about the form of the orders, Ms Murphy and the legal practice had entered into an arrangement for their disposal. I will grant the parties liberty to apply in respect of the orders sought in relation to those matters (530.30 - .50T). Ms Murphy's employment with St George Bank 1. Ms Murphy commenced work with Advanced Bank in May 1996 as a junior auditor. Advanced Bank merged with SGB in 1998 and Ms Murphy was employed as a Senior Manager – Market Risk in the SGB Treasury. In 2002, she was appointed Chief Manager for half of the Risk Management and Compliance area of SGB's institutional and business banking operations, including Treasury. In 2004, she was made General Manager, Risk and Compliance (Exhibit 4, p. 2). Ms Murphy was the most senior female employee at SGB after the CEO (553.37T). Ms Murphy's salary package included a base salary and entitlement to participate in bonus or incentive schemes for which she met the eligibility criteria. Her contract of employment included specified entitlements on retrenchment for redundancy. It was part of her case that SGB was a "bonus-guaranteed" employer. This was to compensate senior staff for which were more modest salaries than available in the financial services market for their respective positions. 2. As I said in my principal judgment, in May 2008 SGB and Westpac had announced their proposed merger. They agreed on a scheme of arrangement which was approved on 17 November 2008 and the merger was completed on 1 March 2010. 3. Following the announcement of the merger, Ms Murphy was aware that she may be made redundant. However, by letter dated 18 June 2008, in common with other key staff Ms Murphy was offered the Retention Incentive Payment ("RIP") if certain performance targets were met by SGB for the corporate financial year ending 30 September 2008 and the employee concerned remained in employment with SGB on 13 November 2008. Background facts concerning this matter are set out in my principal judgment at [28] – [30]. I interpolate, the misstatement of the earnings per share target ("EPS") in the letter of offer made to SGB employees concerned was the basis of the claim for damages for deceit and the related claims. 4. In August 2008, Ms Murphy was given notice that her employment with SGB would be made redundant as a result of the merger (549.12T). She was provided with an Excel Spreadsheet to enable her to calculate her redundancy entitlements. Ms Murphy's last day of actual work with SGB was 19 December 2008. On her retrenchment, according to Westpac, Ms Murphy was paid employment entitlements pursuant to SGB's redundancy policy totalling $565,597 (Exhibit 4, p. 158). The payment was made as an eligible termination payment ("ETP") and therefore subject to applicable income tax rates. Westpac calculated the payment as follows: 1. 26 weeks at Ms Murphy's base salary in lieu of notice $180,215 2. Severance payment of 50.5 weeks at base salary $350,101 3. Pro rata payment of bonus (Short Term Incentive Allowance) 4. for the 2008/2009 financial year $ 30,685 5. Pro rata payment of another bonus entitlement (Medium Term Incentive Plan) for the 2008/2009 financial year $ 4,561 1. The legal practice alleged the payout was in the sum of around $494,000 (Exhibit 4, p. 157). Nothing of substance turns on the difference for the purpose of resolution of the issues in the case at hand. 2. Although eventually conceded by Westpac, a strongly contested issue while Ms Murphy's Federal Court proceedings were pending was whether Ms Murphy had executed a Deed of Release acknowledging that the payment made on termination of her employment was in full and final satisfaction of SGB's obligations to her and unconditionally releasing SGB from claims she had or may have against it. Ms Murphy was adamant that she had executed no such Deed (Exhibit 4, pp. 164 – 166). The Federal Court proceedings 1. As articulated in the position paper prepared for Ms Murphy for mediation on 1 December 2011 (Exhibit 4, pp. 145 – 157), her substantive claim was the claim for damages for deceit, negligent misstatement and misleading or deceptive conduct, each in the alternative, based upon the misstatement of the EPS pertinent to eligibility for the RIP in 2008 (Exhibit 4, p. 157). The claim included the amount of the RIP itself which in Ms Murphy's case was around $34,000. Leaving aside the RIP for the moment, the substantial factual basis for the claim was the allegation that but for the misrepresentation, Ms Murphy would have successfully obtained highly paid work as a senior banking executive elsewhere. I interpolate that she had been offered such a position in December 2007 but declined the offer because it required a relocation to Perth. In the alternative to the claim for damages, Ms Murphy claimed that her employment entitlements on termination of employment ought to have been calculated by reference to her total remuneration including bonuses and incentives rather than at base salary only. It was also claimed that Ms Murphy was entitled to pro rata payment of annual incentives upon retrenchment calculated by reference to SGB rates, rather than Westpac rates. Her schedule of damages acknowledged receipt of a pro rata payment on retrenchment, but at the lesser Westpac rate. It was also claimed, in the alternative to the damages claim, that the payment of six months' salary in lieu of notice was inadequate. Given her seniority and length of service, it was argued that a payment in lieu of notice of 18 months' salary calculated by reference to her total remuneration represented Ms Murphy's entitlement. Exemplary damages were also claimed. 2. The schedule of damages propounded on behalf of Ms Murphy for the mediation focused upon the claim for damages rather than the other alternative claims. Making allowances for employment benefits received by Ms Murphy until 19 December 2008 and on redundancy, her claim was said to have the following components: Past economic loss was calculated to be $435,420; RIP $34,000; Interest on past losses $39,900; Future economic loss for five years utilising the 3 percent multiplier and allowing 25 percent for the vicissitudes $692,685; Exemplary damages $1,000,000; Costs $205,000; The total claimed was $2,407,005 1. In its position paper (Exhibit 4, pp. 158 – 163), Westpac, as I have said above, claimed it had paid entitlements totalling $565,597 on retrenchment. While acknowledging that "the executed copy of the Deed [of Release] has been lost", but relying upon secondary evidence, Westpac argued that the Deed was a major obstacle in the path of Ms Murphy's success. It also claimed that only the RIP in the modest amount of $34,000 had "any realistic prospects of success". This was said to be "more than covered" by a Calderbank Offer in the sum of $40,000 plus costs made by letter dated 10 June 2010 (Exhibit 4, p. 71). Westpac also argued that SGB's redundancy policy allowed only for 6 weeks' pay in lieu of notice and Ms Murphy had been paid for 6 months. It disputed that a claim for 18 months' notice had any prospect of success. It also said that the severance payment made was calculated on the basis of salary plus bonuses and incentives, accepting entitlement for this would be a matter of legal interpretation. The fact of any misstatement of the EPS was in issue. Westpac pointed out that it had paid pro rata bonuses to Ms Murphy on retrenchment. It made the point that had Ms Murphy resigned to take up more lucrative employment in 2008 she necessarily would have foregone her redundancy entitlements. 2. As at the date of the mediation, Ms Murphy and Westpac were "oceans apart". Federal Court judgment 1. As I pointed out in my principal judgment (at [104]) by letter dated 21 March 2012 Westpac's solicitors conceded the entitlement to the RIP in each outstanding case including Ms Murphy's. The rest of Ms Murphy's claims proceeded to a hotly contested hearing before Griffiths J. I reiterate that she was one of the seven applicants whose cases were heard together. His Honour delivered his principal judgment on 14 October 2014. Ms Murphy failed in each of her other claims. His Honour rejected the legal argument that her redundancy payment on retrenchment should have been calculated on the basis of her total remuneration including bonuses and incentives and found that the claim in deceit and related claims were brought without foundation: Murphy v Westpac Banking Corporation [2014] FCA 1104 at [952]. After hearing further argument including as to costs, on 27 March 2015 (Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266) his Honour entered, inter alia, the following orders: "(1) Judgment for [Ms Murphy] in the amount of $34,000 plus interest from 14 November 2008 to 2 April 2012 in the amount of $9,758.28; … (3) The originating application otherwise be dismissed. (4) The respondent to pay 50 percent of the applicant's costs for the period up to and including 11 a.m. 6 December 2011. (5) The applicant is to pay the respondent's costs on an indemnity basis for the period after 11 a.m. on 6 December 2011. …" The costs orders are explained by Westpac's abandonment of its reliance upon the Deed of Release, Ms Murphy's maintenance of the unfounded claim in deceit and related bases, and her failure to accept the offer to compromise served on 2 December 2011, which had effect from 11 a.m. on 6 December 2011. Ms Murphy recovered part of her costs only under Order 4 because his Honour balanced Westpac's abandonment of the defence based on the Deed of Release against Ms Murphy's maintenance of the case he regarded as hopeless for damages for deceit. 1. Ms Murphy's appeal was dismissed by the Full Court of the Federal Court of Australia on 14 March 2016: Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33. Relevant events before the mediation in December 2011 1. As I have discussed in the principal judgment, mediations were arranged at the offices of Westpac's solicitor on 24, 25 and 26 of May 2010 for all claims handled by the legal practice for the SGB claimants. The mediator was the Honourable Ian Callinan AC QC. Mr Michael Cranitch SC was briefed to appear with Mr O'Dowd on behalf of Ms Murphy and the other SGB employees. Prior to the mediation, Mr Gillis provided a costs' estimate to Ms Murphy covering professional costs, counsel's fees and an expert's report all totalling $24,600 (Exhibit 4, p. 38). A copy of the "common issues" position paper (for all 23 ex SGB employees then suing) was provided to Ms Murphy on 17 May 2010 (Exhibit 4, p. 40). The mediations were unsuccessful, but on Ms Murphy's instructions, Mr Gillis made an offer on her behalf, at the same time as offers were made on behalf of all other SGB clients, in the sum of $450,000 inclusive of costs (Exhibit 4, pp. 69 – 70; Affidavit of Michael Joseph Gillis sworn 20 August 2018, CB 1, tab 29 [32]) to which Westpac's solicitors responded with the Calderbank offer referred to above on 10 June 2010 (Exhibit 4, p. 71). Ms Murphy does not mention the Calderbank offer, nor indeed her offer in her affidavit of 12 July 2018. 2. Mr Gillis also says (Affidavit [71]) that during the mediation, Mr Cranitch advised Ms Murphy that the pleaded bar based on the Deed of Release if made good "would effectively remove any claim you have and expose you to paying [Westpac's] costs". Ms Murphy affirmed her denial of having executed a Deed of Release and instructed Mr Cranitch, "[She] will accept 60 percent of [her] claims that have been put to Westpac". 3. After the mediation, Mr Gillis converted Ms Murphy's offer into a "plus costs" offer of compromise in the sum of $430,000 under the former Federal Court Rules open for acceptance for a period of 21 days. Although he says the offer was put in response to the Calderbank offer, I am of the view he is mistaken about that detail. As I have said, the Calderbank offer was not made until 10 June 2010. 4. Given the controversy about the advice given in December 2011 about Westpac's offer to compromise, it is well to record that Mr Gillis said that he advised Ms Murphy about the effect of an offer of compromise including if she received "a verdict in excess of the amount in your offer of compromise, Westpac will have to pay your costs on an indemnity basis". He explained the difference between indemnity costs and party and party costs saying that party and party costs were "around 70 percent" of costs actually incurred. He also indicated to Ms Murphy that her costs to run the case to judgment "could be as high as $400,000" and there could be a shortfall of $100,000 on the costs recovered from Westpac if the case was successful. Having received this advice Mr Gillis says Ms Murphy instructed him that she wanted "$430,000" and to put an offer in that sum. 5. In her affidavit of 12 July 2018 (CB 28, p. 328), Ms Murphy recalls the May 2010 mediation, Mr Cranitch appearing, the settlement of another claimant's case but nothing else. She does not mention the exchange of any offers between SGB and the legal practice on her behalf either at the mediation or in its aftermath ([28] – [33]). She denies that Mr Gillis provided her with a costs estimate ([28]). 6. In cross-examination Ms Murphy did not recall who was at the 2010 mediation (559.1T). She could not recall the detail of the mediation in 2010 (559.25T), but she accepted that she would have read documents relating to the mediation that Mr Gillis had sent to her (559.30T; 562.37T). 7. From the cross-examination, it is clear that Ms Murphy, while accepting she was initially unsure whether she had signed a Deed of Release or not, now recalls that by the time of the 2010 mediation she was confident she had not signed one (567.5T – 568.5T). Although as the advice subsequently given shows, her lawyers were not so sure. Mr Gillis told Ms Murphy that Westpac had been unable to produce the signed deed (Exhibit 4, p. 118). While it was clear that Ms Murphy had no recall of the exchange of offers in 2010, she did not deny that they had been made on her instructions (571.25T – 572.21T). 8. Given the state of Ms Murphy's recollection about these events, which are relevant context, I accept Mr Gillis' evidence in preference to hers. 9. Following further discussion as part of the process of putting offers on behalf of each of the law practice's SGB clients, another inclusive of costs offer of $450,000 was put on behalf of Ms Murphy in about November 2010. At that stage her costs had grown to $70,000 because of the additional preparation involved in filing evidence in accordance with Federal Court directions (Gillis affidavit [40] – [41]). For this reason, in real terms this represented a decrease in her previous demands. While it put offers to other claimants, Westpac did not respond to the offer put on Ms Murphy's behalf. Indeed, Westpac's solicitor stated in a letter to the legal practice of 10 December 2010 (Exhibit 4, pp. 94 – 95): "In relation to the remaining five claims, settlement offers by those applicants were never requested by our client. Although Westpac may at some future time be prepared to enter into settlement discussions … any settlement figure must reflect the significant legal problems that attend those claims." Development of the claim in deceit 1. According to her affidavit of 12 July 2018, Ms Murphy said that Mr Gillis advised her at some unspecified time prior to the commencement of proceedings in the Federal Court (at [19]): "I think I can get you punitive damages. There is no way Westpac will want this to become public. They will definitely settle." Leaving aside that initially the claim was brought against SGB, (Affidavit of 20 August 2018, CB 1, p. 366 [19]), Mr Gillis's evidence is that investigations into a claim for exemplary damages were only made after discovery of the true EPS target of 10.1% later in 2010. It may be more accurate to say "later in 2009" after the filing of Westpac's defences (Exhibit A, p. 153 [20]). Mr Gillis raised the matter in an email to Ms Lavars dated 24 November 2009 (CB 12, p. 4080). Only then did Mr Gillis discuss "the concept of" exemplary damages. 1. Mr Gillis said the claim was formulated by Mr Cranitch SC and Mr O'Dowd (957.20T). Mr Cranitch drafted the amendment "himself" (957.40T). On 16 February 2011, Mr Robert Goot SC was briefed to advise on the claim for exemplary damages (Gillis Affidavit [12]; Exhibit A, p. 158D). 2. While there is no single comprehensive narrative of the facts pertinent to the development of this aspect of the SGB employees claims conveniently sourced to a single document in evidence, on 8 February 2011 (Exhibit 4, p. 98), Mr Gillis emailed Ms Murphy advising inter alia, "the amended statement of claim with a claim for exemplary damages should be before the press tomorrow as well". On 25 May 2011, when advising Ms Murphy of progress, or lack of it, made toward convening another mediation, Mr Gillis advised as follows (Exhibit 4, p. 99): "The game plan is for you and me to meet next week to formulate a written schedule of damages which I will give to [Westpac's solicitors] one week before the settlement conferences. I do not want them thinking that they should turn up to negotiate us down from the offer we put for you in November last year. We now have a well-articulated claim for exemplary damages with an advice from Robert Goot of Senior Counsel that such a claim should be brought on your behalf." 1. It is apparent that Ms Murphy undertook some private research into the availability of "punitive damages". She forwarded an "article" on the topic to Mr Gillis as part of an email of 2 June 2011. While expressing the hope that the matter "doesn't go to court", she also said, "I would be 95 percent confident that [a senior SGB executive's] treatment of me could properly be described as having been "contumelious" for my welfare and my professional opinion during the last year at [SGB]". That this was not really the gravamen of the claim for exemplary damages is not to the point (Exhibit 4, p. 103). What is to the point is the timing of the claim being propounded and the consideration that Ms Murphy understood what was involved. 2. During 2011 on the recommendation of Mr Ian Neil SC, a leading employment law silk, Mr Yaseen Shariff of counsel was briefed to work on the exemplary damages claim concerning the setting of the EPS target for the RIP (Affidavit 19 August 2019 [13]). 3. In September 2011, Mr JT Gleeson SC, one of Australia's foremost silks, was briefed "to advise and appear on a discreet issue of [the] claim for exemplary damages…for deceit and/or negligent misstatement" relating to the RIP issue (Exhibit A, pp. 150—158; 1027.40 - .45T). Mr Gleeson's retainer was renewed in about August 2012 (Exhibit A, pp. 157 - 8; 1028.50T - 1029.15T). Due to his appointment to high public office it was necessary for Mr Gleeson to return his brief. However, amendments, including to add the count under s 52 TPA, were made and other steps taken on the strength of his advice in consultation. Mr Alan Sullivan QC, an eminent and very experienced silk at the Sydney Bar, accepted the brief in Mr Gleeson's stead. Mr Sullivan appeared before Griffiths J to prosecute this aspect of the claim. 4. Each of Mr Goot SC and Mr Neil SC were briefed for different SGB clients at the mediations and to settle the position papers to be served for that purpose. Mr Gillis said that both senior counsel separately advised orally to the effect (Affidavit 19 August 2019 [17]): "There is a basis to claim that these people have been deliberately misled so that the bank would gain an advantage, and therefore a basis to bring the claim for an award of exemplary damages". 1. In the immediate lead up to the mediation, each counsel briefed, Mr Goot SC, Mr Neil SC, Mr Shariff and Mr O'Dowd advised, "there is a good basis to bring the exemplary damages claim". 2. Mr Gillis agreed in cross-examination that "effectively" it was he who decided that the discovered documents provided a claim in deceit (957.10 - .30T). I accept, however, that the claim was formulated in consultation with Mr Cranitch SC, Mr Goot SC and Mr Gleeson SC. The mediation on 1 December 2011 1. As I have already said, Ms Murphy's mediation was fixed for 1 December 2011 with the honourable Tony Fitzgerald AC QC appointed by the parties as mediator (David Eric Collinge Affidavit sworn 3 August 2018 [24]). As in other cases Mr Collinge kept a contemporaneous note of the conference with Mr Goot SC and Mr O'Dowd on 29 November 2011 and of the mediation itself (Annexure "A" and "C", Collinge Affidavit). With respect his note is not as detailed as in some other cases. Ms Murphy conferred with her legal team at 3:25 p.m.. Mr Goot explained the procedure at mediation and expressed hope for a different attitude to settlement from the Bank than in May 2010. The content of the Schedule of Damages prepared for Ms Murphy was discussed with her (Exhibit 4, p. 157). 2. From Mr Collinge's note, Mr Fitzgerald spoke about the process and said to Ms Murphy there was "no right or wrong"; she should ask "what's best for me"; that she had to "manage the risk and assess"; and that there was "no certainty of outcome on factual and legal issues" (Exhibit 4, p. 167). 3. As in other cases, although Ms Murphy's schedule of damages included a claim for exemplary damages in the sum of $1 million, it seems to have been accepted that Westpac would not countenance a settlement which included any component for exemplary damages. But the plaintiff's legal team hoped the claim would work as a "lever" for settlement. During his opening Mr Goot explained that the termination payments should have been on a "plus bonus" basis, which explains the claim for economic loss. He said from Ms Murphy's point of view that the Deed of Release was a "hot issue". Mr Steele of Counsel for Westpac pointed to the large amount paid on termination by Westpac and indicated that Westpac relied upon the consideration that the Deed of Release had been executed. He pointed out "you have to sign to get paid" (Exhibit 4, p. 168). 4. Ms Murphy did not give a detailed account of her recollection of the mediation in her affidavit of 12 July 2018 (CB 1, p. 334, [38]), she recalled an offer in the sum of $300,000 plus costs which she rejected on the advice of "Gillis and counsel". She said that Mr Gillis said to her, "don't even think about taking the offer. There will be a lot more on the table". 5. Prior to the mediation, Ms Murphy received a copy of the respective position papers and the schedule of damages, which she accepted she had read (594.20 - .34T). I accept that her detailed email to Mr Gillis of 29 November 2011 (Exhibit 4, pp. 164 – 166) demonstrates that she had read the position papers, understood their contents and was across Westpac's evidence, particularly the evidence of Mr Paul Harvey concerning the circumstances in which the Deed of Release was allegedly signed. Ms Murphy puts forward cogent reasons suggesting the probabilities are that the Deed was not presented to her for signature. She also suggests the inclusion of other matters in her position paper. 6. She was also aware from the schedule of damages that her own costs liability to the legal practice was then $205,000 (595.20 - .43T). 7. Ms Murphy said that at the time of the mediation her "mental state was not optimal". Her father had died and she had only returned from Ireland after attending his funeral two weeks previously (Affidavit CB 1, p. 334 [38]). In cross-examination she described the circumstances as "hammering" (580.19T). I have no reason to doubt that the circumstances mentioned by Ms Murphy took a heavy emotional toll. However, her email correspondence with Mr Gillis certainly demonstrates a high level of mental lucidity and understanding of the issues in the litigation. When giving evidence before me she stated, "I don't remember the mediations" (581.20T). I accept that that is correct given the passage of time and the difficult and disappointing hearing in the Federal Court. It is important to record that she agreed that she had "a high level of animosity" towards Westpac (584.1T). 8. When asked about paragraphs [37] and [38] of her affidavit, Ms Murphy volunteered (592.30T): "They're wrong. I never actually got an offer of [$]300[K]. The offer I got was for [$]100[K]. So, I don't recall and I also got it wrong." When challenged about the words she attributed to Mr Gillis, it was apparent that she was reconstructing her recollection because she said, "[Mr Gillis] used those words pretty regularly". She also accepted that Mr Goot appeared and not Mr Neil (594.40T). But she did not recall meeting him. She did not accept that Mr Goot had advised her that the Deed of Release is a large hurdle (596.25T – 597.15T). Rather, she remembered Mr Cranitch saying that "at the beginning". She accepted that if she had signed a Deed of Release it would be a defence to her claim unless she was able to avoid its legal affect in some way (597.3T). When challenged about her recollection of the offer Westpac made at mediation she said (at 598.50T) "Westpac's final offer is $300,000 inclusive of costs. I never saw an offer for $300,000. After this mediation there was an offer of $100,000." 1. Given Ms Murphy's difficulties of recall about what happened at mediation, I prefer the evidence of Mr Gillis. I accept that Mr Goot advised Ms Murphy at the conference on 29 November 2011 that the Deed of Release was a large hurdle. Mr Cranitch might also have given advice to that effect initially. Despite her protestations in evidence that she knew she had not signed a Deed of Release, the contents of her email to Mr Gillis of 29 November 2011 (Exhibit 4, p. 164) as I have already said, demonstrate that she understood that her lawyers were concerned about it. 2. I accept Mr Gillis's evidence set out in his affidavit of 20 August 2018 (CB 1, p. 361 [56]), that Ms Murphy, having received advice from Mr Goot and Mr Gillis instructed her lawyer to put an offer of $590,000 plus costs, costs being $205,000, a total of $795,000. This is corroborated by Mr Collinge's note (Exhibit 4, p. 168). I also accept Mr Gillis's evidence that Westpac's solicitor in response made an offer of $300,000 inclusive of costs and stated that if the offer was not accepted Westpac would "turn their last offer into an offer of compromise". 3. There is no evidence in this case as to Westpac's solicitors having given any indication of the amount that Westpac was prepared to pay for costs on a party and party basis. However, given that the offer of compromise when served on 2 December 2011 was in the amount of $100,000 plus costs, the inference is, that for some reason, in Ms Murphy's case anyway, Westpac were prepared to pay something in the order of $200,000 for costs on a party and party basis. I accept Mr Gillis's evidence that Ms Murphy instructed him to reject the offer of $300,000 inclusive of costs. She made it quite clear in evidence that she was not prepared to accept $100,000 even clear, in her hand. She said (607.30T): "There was no way I would have considered $100,000. That was, like I was earning ‑ $100,000 wouldn't have been ‑ as I said, the amount that I was expecting was around 300, 300 and 350, and that was fair and equitable, but it didn't happen." She was challenged about whether she was prepared to accept even $300,000 (607.35T). She reiterated that she "would never have accepted" $100,000 (611.30T). 1. I am satisfied on the balance of probabilities that Mr Gillis's account of what occurred at the mediation is accurate. The offer to compromise 1. On 2 December, Westpac's solicitors served on the legal practice an offer to compromise under Rule 25.01(1) Federal Court Rules 2011 (Cth) in Ms Murphy's case in the sum of $100,000 in addition to costs as agreed or assessed, open for acceptance for 14 days after the service (Exhibit 4, p. 183). Ms Murphy says she did not receive any advice about the offer to compromise until 13 December 2011 when she received a written advice from Mr Gillis, which she understood was advising her to reject the offer. She also had a telephone conference with him on that day during which she says he said to her "of course you'll turn it down there'll be more money on the table". 2. Given Ms Murphy's poor recollection of events, I do not accept her version. I accept Mr Gillis's version of events that he spoke to Ms Murphy on 6 December 2011 (CB 1, p. 361 [59]) and advised her that the offer of compromise had been received in the sum of $100,000 plus costs. He said, "that is consistent with what Westpac said at the mediation they would do". As with other cases, he advised Ms Murphy that he wished to put an offer to Westpac on behalf of all clients "so that Westpac have a figure for which they can accept to bring the proceedings to an end" (sic). Ms Murphy accepted his advice in relation to that strategy. I interpolate that on 8 December 2011, Ms Murphy wrote by email to Mr Gillis making further comments on Mr Harvey's affidavits and making further salient points about "the unsigned Deed". 3. Mr Gillis says that he spoke to Ms Murphy on 9 December 2011. He is probably wrong about the day as his telephone records show there were two conversations, the first on 6 December 2011 for 14 minutes when, I accept, he discussed the receipt of the offer of compromise and the strategy he had in mind. The second call was on 7 December and lasted for 6 minutes during which I accept he obtained the instructions that he recounts in his affidavit at [61] (CB 1, pp. 361 – 2). Ms Murphy does not recall the conversations (600.30T). During his second conversation, Mr Gillis reiterated his strategy. I accept that he recommended that Ms Murphy put "the lowest offer" she was prepared to accept. He referred to the oral advice of senior and junior counsel. He also says that he stated, "this may be your last chance to settle your claim". 4. His affidavit records that Ms Murphy said that her final offer is "$610,000 inclusive of costs. I will not accept anything less". However, this is mistaken, and I accept the correction made in his oral evidence (757.26T – 758.37T), that Ms Murphy actually instructed him in terms to offer $755,000 inclusive of costs. This was $510,000 clear to her. The reason for the increase in solicitor and client costs then since the mediation is not clear. Mr Gillis's correction is consistent with the contents of his letter to Westpac's solicitors of 9 December 2011 (Exhibit 4, p. 175) and consistent with his confirmatory email to Ms Murphy of the same date that an offer had been put on her behalf in the sum of $510,000 plus costs "on an ETP basis". 5. As with each case, the offer of 9 December 2011 was expressed to be open for acceptance by 4 p.m. on 16 December 2011. As I explained in my principal judgment, it was part of Mr Gillis's strategy that each client would have a window of opportunity to accept the offer to compromise made by Westpac if the offers of 9 December 2011 were rejected or not accepted in accordance with their terms. The exchange of correspondence concerning the deceit claim in December 2011 1. It is logical to interpolate as part of the chronology that on 5 December 2011 at length in strong terms setting out why they contended the deceit claims were bound to fail (Exhibit A, pp. 267 - 270). Westpac's solicitors demanded that the claims be withdrawn on pain of an application for indemnity costs on the basis they had been brought without proper basis. Mr Gillis responded on 7 December 2011 joining issue (Exhibit A, pp. 271 - 2). 2. On 12 December 2011, Westpac's solicitors again wrote to the legal practice in strong terms referrable to Ms Murphy's claim demanding that the allegations of deceit against officers of Westpac, and in particular Mr Harvey "had deliberately lied" about the EPS relevant to the RIP. Westpac's lawyers stated, inter alia: "We urge you to consider careful your ethical position in relation to the proposed allegations before they are made public, lest irremediable damage be unfairly and unjustifiably done to Mr Harvey's reputation." 1. On the same day, Mr Gillis responded joining issue with the assertions of Westpac's solicitors (Exhibit 4, p. 178) explaining that the claim of deceit was founded on "recklessness, rather than deliberately falsehood summarising the evidence relied upon". 2. Copies of this correspondence were forwarded to the clients concerned, including Ms Murphy (Exhibit 4, p. 180) which she acknowledged the same day (Exhibit 4, p. 181). The written advice of 13 December 2011 1. As with the other cases, Mr Gillis provided Ms Murphy with his written advice concerning the offer to compromise by email on 13 December 2011. A copy of the written offer was attached. Mr Gillis advised that the offer was open for acceptance until 16 December 2011 and was made on a "plus costs" basis. As in other cases, he advised that "this offer would cover at least 80 – 90% of your actual costs". He said that it was essentially the same offer as had been put at mediation. This was in the sum of $300,000 inclusive of costs. The substance of Mr Gillis's advice was in the following terms (Exhibit 4, p. 185): "I am obliged to advise you the effect on [sic] the offer of compromise is that if you obtain a verdict less than Westpac have set out in the offer of compromise you: i. will not recover any more of your costs incurred beyond the date of the offer; and ii. will have to pay Westpac's costs incurred after the offer of compromise. The offer is open for acceptance for one hour after your offer has expired. Obviously I do not recommend you accept the offer of compromise. I think [Westpac's solicitors] (and hopefully Westpac if our letters have been passed onto Westpac) are now more concerned about [senior manager's] credibility as a witness of truth. I am more and more comfortable about [him] being a complete liability for Westpac." 1. In Ms Murphy's case, the senior manager's evidence was relevant both to the EPS deceit claim and the question of whether Ms Murphy executed a deed of release in exchange for her redundancy. The email dealt with other matters and it is not necessary to recount. 2. Having received the email at about 1:18 p.m., Ms Murphy responded at 4:28 p.m., after commenting about preparation matters she said (Exhibit 4, p. 185): "I have lost more than $500K. Needless to say NO. No to offer of compromise." 1. As I have pointed out, the written advice is central to Ms Murphy's case in negligence against the legal practice. 2. As I have already said at [50] above, Ms Murphy simply was not prepared to accept settlement in the sum of $100,000 plus costs. More than once she maintained that her figure was around $300,000 to $350,000 clear. The Global offer 1. I have dealt with the circumstances of the global offer and the condition on which it was made in my principal judgment (at [78] – [91]). Naturally specific facts in that passage relate to Ms Lavars, but the context is equally applicable to all cases including Ms Murphy's. 2. The component of the global offer relevant to Ms Murphy's claim was $500,000 inclusive of costs on an ETP basis (Exhibit 4, p. 188). The offer is referred to as the global offer because it was not susceptible to unilateral acceptance by any one remaining claimant. It was subject to the condition that "all other offers are accepted by the relevant applicant". This has been referred to as the "one in, all in" condition. 3. The component of the global offer relevant to Ms Murphy was $500,000 inclusive of costs on an ETP basis. Subject to whether her solicitor and client costs were $200K or closer to $250K, had the global offer been capable of unilateral acceptance by Ms Murphy, it would have cleared between $250K and $300K. I have expressed it with this level of uncertainty because at mediation on 2 December 2011, Ms Murphy's solicitor and client costs were said to be in the vicinity of $200K. But to clear $510K for Ms Murphy on 9 December 2011, Mr Gillis put $755K on her behalf. 4. As I have pointed out (at [50]), Ms Murphy said, in fact more than once, that she was "expecting" around $300K and $350K (607.30T; 608.4T; 608.8T and 611.35T). But she accepted that she did not instruct Mr Gillis to make an offer of $300,000 plus costs in December 2011 (619.40T). 5. According to her affidavit of 12 July 2018, Mr Gillis did not inform her of the global offer or her component in it and she did not instruct him to reject it. On this account she was unaware of the global offer until the letter by which it was made was shown to her by one of the other claimants in 2016 (CB 1, tab 28, p. 337 [57]). In his affidavit of 20 August 2018, Mr Gillis states that he spoke to Ms Murphy about the global offer some time prior to 9:52 a.m. (CB 1, tab 29, p. 362 [68]). As is clear from my principal judgment (at [84]) Mr Gillis rejected the global offer on behalf of all of his clients concerned by email at 9:52 a.m. on 15 December 2011. His telephone records (Exhibit 4, p. 189A – B) establish that Mr Gillis attempted to telephone Ms Murphy at 9:12 a.m.. She did not answer, but returned his call almost immediately at 9:13 a.m. and spoke with Mr Gillis for 7 minutes. Mr Gillis says that he discussed the matter with Ms Murphy and explained that "Other clients have already rejected" the global offer and informed Ms Murphy that her component "is $500,000 inclusive of costs paid as an ETP". His evidence is that Ms Murphy instructed him to reject the offer stating, "my costs are $200,000 that only gives me $300,000 which will be taxed". 6. I prefer Mr Gillis's version of events. They are supported by relevant contemporaneous records and to my mind better accord with the apparent logic of events. December 2011 was a time of intensive negotiations in all remaining SGB claims handled by Mr Gillis. By the offers he made on instructions on 9 December 2011 on behalf of all remaining SGB claimants he had put in place a strategy which he hoped would bring all claims to resolution at the same time. It is to me unlikely that he would have simply ignored a receipt of the global offer at that critical time, especially as it cut across his strategy by being open for acceptance until 4 p.m. on Monday 19 December 2011 (principal judgment [79]). 7. I am not suggesting that Ms Murphy deliberately lied in any way. With the passage of time, she has simply forgotten all of the details which is entirely understandable given the length of time, events in her personal life and the bruising subsequent course of the litigation. 8. As I said in my principal judgment at [86] the global offer placed Mr Gillis and each of his clients in an invidious position. I am not prepared that he was so high handed as to completely disregard the global offer or that he lied to Westpac's solicitors when he stated in his 9:52 a.m. email, "I have obtained all of my client's instructions". Rather, as I said in my principal judgment [86], he acted with appropriate celerity to explain the position to each of his eight clients and having obtained their instructions rejected the offer. 9. Moreover, I accept that following the rejection of the global offer, Mr Gillis took three further steps in an attempt to keep settlement negotiations alive. First, he reiterated the offers of 9 December 2011 by incorporation and confirmed that notwithstanding the global offer they remained open for acceptance by 4 p.m. on 16 December 2011, secondly, he wrote to Westpac's solicitors stating he'd received tax advice that all offers could be paid as damages, rather than as taxable employment benefits (this would have increased the value of the offers to his clients); and thirdly, he spoke to Westpac's solicitor in an attempt to have the "one in, all in" condition waived (principal judgment [85]). Although given that there remained a $255,000 difference between Ms Murphy's component of the global offer and her 9 December 2011 offer, Ms Murphy's component was not one of those Mr Gillis had in mind when he told Westpac's solicitor "some of those offers were getting close to the mark". 10. It is convenient to say at this stage that I don't accept Ms Murphy's evidence that a clear figure in the order of $300,000 to $350,000 was her "figure". That evidence has some currency because her component of the global offer, assuming her solicitor and client costs were $200K, rather than $240K, could have cleared her a figure at the lower end of that range. Quite apart from issues that may arise about the admissibility of those assertions under s 5D(3) Civil Liability Act 2002 (NSW) ("CLA"), at least so far as questions of causation are concerned, in her own affidavit of 12 July 2018 she mistakenly stated, as I have already referred, that Westpac's offer at the December 2011 mediation was in the sum of $300,000 plus costs (CB 1, tab 28, p. 334 [38]). Although she claims to have rejected such an offer because Mr Gillis told her to she nowhere in her affidavit states that she said to Mr Gillis at any time that $300,000 clear was a figure she would accept. As I have already pointed out she agreed in cross examination that she did not give those instructions to Mr Gillis in relation to the offer of compromise (619.40T) and there was no evidence that she ever said as much to Mr Gillis at any time. Indeed, her email of 13 December 2011 in response to Mr Gillis's written advice mentions a figure of $500,000 as her annual salary and rejects the offer of compromise out of hand without more. 11. It is also important to bear in mind that Ms Murphy, like others of the claimants was in contact with her former colleagues and drew comfort from their support. She agreed that had they been accepting their offers she "would have had to accept [her] offer" because she could not afford to run the case on her own (620.40T) and she reaffirmed this in re-examination (620.5 - .20T). 12. In my view, Ms Murphy's recollection about her "figure" is wholly the product of hindsight. Had Mr Gillis had any sense in December 2011 that Ms Murphy's component of the global offer was "close to the mark" she would have been included in the offer of 21 December 2011 (principal judgment [92]). 13. Ms Murphy also states that she was not informed by Mr Gillis of the content of the second letter of Westpac's solicitor of 15 December 2011 (principal judgment [86]). She also heard about that later from one of her former colleagues (CB 1, tab 28, p. 337 [60]). It may be that Mr Gillis did not pass that letter on. However, he continued to attempt settlement on behalf of all his clients by following the strategy he had put in place on 9 December 2011. I have already observed that although Mr Gillis accepted in terms that the second letter of 15 December 2011 was leaving open the prospect of further negotiations, in one sense as subsequent events showed, it was really a rebuke to Mr Gillis for reiterating the offer of 9 December 2011 and a clear statement that Westpac was not prepared to "bid against itself" (principal judgment [87]). Rejection of the offer of compromise 1. After the expiration of the offer of 9 December 2011 at 4 p.m. on 16 December 2011, Mr Gillis spoke to each of his remaining SGB clients about the offer of compromise. I am satisfied that he spoke to Ms Murphy at 5:30 p.m. for 14 minutes (Exhibit 4, p. 191A). Mr Gillis says (CB 1, tab 29, p. 363 [73]) that he advised Ms Murphy that Westpac had not accepted her offer of 9 December 2011 and the only offer available then was the offer to compromise of $100,000 plus costs. He says that Ms Murphy instructed him, "there is no way I'm accepting the offer of compromise". Given her clear evidence about that in cross-examination there is no reason to doubt in any way Mr Gillis's account and I accept it. Mr Gillis advised her that Westpac were proceeding on the basis they would win on the Deed of Release argument and that that was a "hurdle" before consideration of other risks in "proving" her claim. Mr Gillis said, perhaps an implied reference to the second letter of 15 December 2011, he said "Westpac have asked if you wish to make a further offer?" He states Ms Murphy reaffirmed that her offer of 9 December 2011 was her "final offer". As I have said, this is consistent with Mr Gillis not having included Ms Murphy in the offers of 21 December 2011, which were rejected by the stony silence of Westpac's lawyers in any event. 2. Ms Murphy had no real recollection of that telephone conversation, but accepted in cross-examination that Mr Gillis's account "sounds like a logical progression of the issues" (609.10T). She certainly agreed that she said there was "no way" she would accept the offer of compromise. She reiterated that $300,000 clear would have made a difference. That she did not claim to have said that to Mr Gillis, I accept Mr Gillis's account of this conversation. 3. I also accept the legal practice's argument that as at 16 December 2011, Ms Murphy and Westpac were a long way apart; she understood when she rejected the offer of compromise that the case might have to go to court and that Westpac might not settle; she appreciated that going to court might cost hundreds of thousands of dollars in her costs and also on Westpac's costs and there was a chance that if her case succeeded she may receive more than $500,000 clear, at least according to the schedule of damages she had been given for the mediation (619.25T – 620.40T). Some additional factual considerations 1. It remains to state that in common with the other remaining SGB claimants, Mr Gillis wrote to Ms Murphy on 23 December 2011 advising that none of the remaining matters had settled, confirming the global offer had been made "on the basis that all matters settle", and Ms Murphy had rejected her "offer" of $500,000 inclusive of costs "as an ETP". Interestingly, despite the evidence in her affidavit, Ms Murphy did not take any umbrage at this statement. She did not protest that she had never been told of the global offer. She communicated with Mr Gillis by email again on 26 February 2012 about damages issues not mentioning the email of 23 December. 2. As I have stated in my principal judgment, Westpac conceded the RIP issue in March 2012. On 27 March 2012, Mr Gillis reported consultation with Mr Gleeson SC. He had expressed views about whether judgment should be entered in respect of the RIP claim and had recommended an addition claim on aggravated damages "on how Westpac had conducted your case", as learned Senior Counsel considered there had been no basis for Westpac to deny payment of the RIP. Having noted the matter was before the Court on 2 April 2012, Mr Gillis advised that "Gleeson SC remains enthusiastic on the claim for exemplary damages and the admission of the contract claim only now assists us in the exemplary damages amount". Was Ms Murphy especially vulnerable 1. As I have said from the outset, the case for Ms Murphy advanced by Mr Gray SC and Mr Raftery was partly based on the argument that Ms Murphy's mental state, as at December 2011, was such that she was unable to properly manage her own financial and legal affairs and that this consideration elevated what reasonable care required in discharge of the duty owed personally to her over and above the precautions that might be due to a person of ordinary mental and emotional robustness. I accept that as duties recognised by the law of negligence are owed not only to an identified class generally, but also to each member of that class individually. The universal standard of reasonable care is flexible in its application to a particular individual concerned. In this regard, I have referred to Paris v Stepney Borough Council at [6] above. Reference should also be made to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 at p. 554. There the plurality justices said: "It has been emphasised in many cases that the degree of care under that standard [of reasonable care] necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur." 1. However I am not satisfied that Ms Murphy has established that she was at a particular disadvantage because of her mental and emotional state calling for a greater degree of care on the part of the legal practice than the other SGB claimants, or other clients involved in litigation generally, for that matter. I accept that she made many complaints about her mental state in her affidavit and oral testimony referrable to December 2011. I certainly accept that the loss of long term well paid employment, the difficulties of establishing herself in her own consultancy, the medium term effects of a bruising divorce, the death of her father in October 2011 and the stress of the litigation were all factors which had an effect upon her. I also accept that these effects grew worse as time went on and included the financial pressures inherent in the loss of her employment and the slowness of her consultancy to gain traction in the market. Later in the piece she successfully claimed benefits under a total and permanent disablement provision from a life insurance policy and she gave evidence that she was eventually diagnosed as suffering bipolar disorder. With no disrespect I am prepared to say that Ms Murphy did present as a somewhat garrulous and non-focused witness and that these features of her demeanour may well, at least in part, have been symptomatic of a diagnosable mental condition over and above the ordinary stress attendant upon important litigation. 2. However, no expert evidence was led to prove that Ms Murphy suffered a diagnosable mental condition between 2009 and the end of 2011, the particular period central to these proceedings. Indeed no expert evidence was led at all to prove that Ms Murphy at any time suffered from a diagnosable medical condition. More specifically no expert evidence was led to demonstrate that Ms Murphy was incapable of, or had diminished capability to, manage her own legal and financial affairs such that any special care or accommodation was called for by professional advisers acting for her in such matters. There was certainly no suggestion in evidence nor in argument that a question arose about her capacity to manage the present litigation. 3. As against this, Mr Gillis gave evidence (CB 1, tab 29, p. 364 [83]): "In my 33 years of legal practice I have acted for many individuals in a variety of legal matters including obtaining instructions from aged testators in preparing wills, acting for persons with brain damage and mental disabilities, and minors and their tutors. In acting for those people I have had to make an assessment of their capacity to provide proper instructions to me. On those occasions when I have been concerned about a person's capacity to provide instructions, I have then obtained opinions from medical practitioners to establish whether or not the person had proper capacity to provide me with instructions." Notwithstanding this experience during the time he acted for the plaintiff he had never had any concern about her capacity to provide him with proper instructions. He did not have any concerns about her capacity to understand the advice he proffered, the nature of her claim and the various strengths and weaknesses of her claim. Counsel retained had not raised any such concerns with him about Ms Murphy. She had always impressed Mr Gillis as "a high functioning senior executive who managed SGB's risk and compliance obligations" (Affidavit [85]). 1. In the course of my narrative of relevant facts in this judgment, I have made reference to various email communications emanating from Ms Murphy, dealing with salient features of her claim. It is not necessary to set these communications out in any great detail. I have read them carefully. They demonstrate a detailed understanding of the nature of her claim, the issues involved, including the evidential issues and in many cases provide her own analysis of the questions in an intelligent, informed and insightful way. On occasions she extends interests in legal as opposed to purely factual issues involved. 2. I am not satisfied on the balance of probabilities that Ms Murphy did suffer any special or particular vulnerability or disadvantage in dealing with the legal and financial questions so as to require an additional degree of care in the provision of advice by the legal practice about settlement over and above that required by an ordinary person of normal mental and emotional robustness. 3. Mr L.V. Gyles SC and Ms A.A. Cameron for the legal practice joined issue. They argued that it was necessary to look at the advice given over the whole of the case, rather than focus on advice given in December 2011. Once this was done it was clear that at each step of the way, advice had been given to Ms Murphy about her prospects including by Mr Cranitch SC, Mr Goot SC, Mr Gillis and through him from Mr Gleeson SC. She was provided with copies of the position paper of each party which ventilated the issues fully and which she read and apparently understood. Mr Gillis advised her of each offer as it was made and obtained her instructions in relation to it. Counter offers were put to Westpac on her behalf in accordance with her instructions. Viewed prospectively there was no negligence in the advice given and she was fully informed from time to time of the total costs incurred to date, the likely total costs for her of a Federal Court hearing and the costs ramifications of the offer to compromise. 4. There was no breach of fiduciary duty because there was no conflict of "duty and duty" when the facts were weighed and assessed objectively. Any argument that Mr Gillis acted without instructions should be rejected and the contention that Ms Murphy should have been referred for independent advice between 15 and 19 December 2011 was so unworkable as to be fanciful. 5. So far as causation was concerned, the highest offer made to Ms Murphy was in fact the $300,000 inclusive of costs at the December 2011 mediation or its equivalent, the offer to compromise of 2 December 2011 in the sum of $100,000 plus costs. Ms Murphy made it abundantly clear in her own language that she would not accept that sum of money. The global offer was never open to be unilaterally accepted by Ms Murphy and Westpac's failure to respond to the reinstated offer of 9 December 2011 demonstrated an unwillingness to negotiate individually with the SGB claimants after the failure of the mediations in November and December 2011. Absent proof that Westpac were prepared to make another offer that Ms Murphy would have accepted, the issue of causation must fail. 6. So far as advice about the deceit and related claims is concerned, it was put that that advice was not negligently given by Mr Gillis, given the efforts he took to obtain the advice of experienced, and indeed eminent, senior counsel about the matter. In any event, those claims did not figure in the settlement negotiations given Westpac's attitude to them. They were effectively put to one side. 7. So far as questions about the advisability of bringing and maintaining those claims is concerned, the advice given or conveyed by Mr Gillis on behalf of the legal practice is covered by advocates immunity. The case for Ms Murphy 1. Mr Gray and Mr Raftery of Counsel who appeared for Ms Murphy argued that the advice given to Ms Murphy in December 2011, particularly in relation to the offer of compromise was inadequate in a number of respects. First, the advice on prospects of success was inadequate because it was binary in the sense it consisted of in substance, "you will either lose or win" and did not descend into detailed advice of the prospects of "winning" on each separate head of claim including the meaning of pay in the redundancy policy, prospects of obtaining an additional payment for reasonable notice, and the prospect of obtaining unpaid bonuses, the prospects of succeeding on the deceit and related claims and the related question of success in the claim for exemplary damages. Secondly, the advice in relation to the costs consequences of settling or not settling particularly in relation to the offer of compromise was inadequate. 2. So far as the global offer was concerned, the focus of counsel's argument was on the question of breach of fiduciary duty, the content of which was largely the same as that advanced on behalf of Ms Lavars (by Mr Faulkner SC and Mr Roucek), Mr Moore, Mr Lawson and Mr Wittenberg. Essentially it is said that Mr Gillis ought to have arranged for each of the clients to obtain independent advice about the global offer, or convene a meeting of all clients to work through the issues for each of them with them all present. 3. It was also argued that Mr Gillis on behalf of the legal practice before instituting the claim of deceit, owed a duty to each client to explain: the gravity of the claim; the forensic advantages involved; the forensic disadvantages involved, especially in relation to costs; and having regard to those matters whether it appeared to be in the clients best interests to continue with, rather than withdraw the claim. This issue arose when Westpac's solicitors made it clear in December 2011 that they regarded the claim as baseless and would pursue each client for indemnity costs if the claim was unsuccessful. 4. So far as causation was concerned it was submitted that properly advised, Ms Murphy would have either accepted the offer of compromise, or instructed the legal practice to attempt to negotiate a separate settlement in her favour for the amount of her component of the global offer; and withdrawn the claim for exemplary damages. Ms Murphy's claim in negligence 1. As I have said already in this judgment, the principles of law which I will apply are set out in my principal judgment. 2. I fully accept that Mr Gillis regarded Ms Murphy's case as a strong one, fully expected it to settle and for that reason expected that Westpac would be responsible for Ms Murphy's costs at least on a party and party basis. In short, he was confident and exuded that confidence. This confidence was clearly communicated to his clients including Ms Murphy. It perhaps can be observed that many clients will prefer a confident solicitor to a cautious one. Even so, I am not satisfied that because of his confidence, Mr Gillis was imprudent, always accepting that is not the test for legal liability. 3. I am also of the view that in assessing the question of whether the advice given by the legal practice through Mr Gillis to Ms Murphy was negligent, it is erroneous to simply focus upon the advice given on a single occasion, say the written advice in the email of 13 December 2011. Rather, one has to consider the course of the advice given over the period from May 2010 to December 2011. The reality is on the facts set out in my principal judgment and in this judgment, the negotiations of December 2011 were the last opportunity for settlement. After Christmas 2011, as I have said in my principal judgment, the parties were clearing the decks for action. 4. It is also important to bear in mind that on the evidence Westpac only ever made two offers to Ms Murphy capable of acceptance by her unilateral act. The first was the Calderbank Letter of 10 June 2010 (see [18] above) in the sum of $40,000 plus costs. The second was the offer to compromise of 2 December 2011 in the sum of $100,000 plus costs, which, I accept, was a reiteration of the $300,000 inclusive of costs made at the mediation. Although more relevant to questions of causation, for her own reasons, Ms Murphy was never going to accept either offer as the evidence I have referred to above amply demonstrates. She did not regard even the greater offer of $100,000 as fair and equitable (609.24T; 611.35T). This is not to cast Ms Murphy as a "reckless risk taker" as her counsel put it rhetorically, but simply to recognise that she was a senior banking executive who had some familiarity with the legal system because of her work and was capable of forming her own views about the decision she should make in her own interests. 5. As I said in my principal judgment, the global offer was not capable of acceptance by the unilateral act of any individual client. In truth, it was not an offer to Ms Murphy at all. It was an offer to a group of people who had individual, separate and different claims. 6. It must also be remembered that when the offer of compromise was made, Ms Murphy was propounding a claim in the sum of $1.4m inclusive of costs, disregarding completely her claim for exemplary damages. If one rounds the figures out, that claim had been formulated in consultation with one of the leading employment law silks in Australia with the assistance of experienced junior counsel. Westpac's offer was put in response to Ms Murphy's offer at mediation of $795K inclusive of costs, that was just under 60 percent of her claim, disregarding the exemplary damages claim. The offer of compromise was just over 20 percent of that claim. Unlike other cases, there was no suggestion that anyone on her legal team, senior counsel, junior counsel or Mr Gillis expressed the view that the offer was reasonable. Frankly, it would have been surprising if any one of them had given they had all been involved in the formulation of Ms Murphy's claim and propounded it as one worthy of serious consideration at the mediation. Doubtless Ms Murphy would have been very surprised if any one of her lawyers had said to her at the mediation or after the offer to compromise had been received, "I recommend that you accept this offer". 7. It is only hindsight that cloaks the offer of compromise with the garb of reasonableness. With hindsight, it was a "good offer". But it was not one which according to her own evidence would have made any difference to Ms Murphy's somewhat straightened financial circumstances when it was made. This is not the test of legal reasonableness, but inevitably clients with claims for damages have their own aspirations for their own reasons which they have to accommodate within the confines of the legal advice received. 8. Viewed prospectively, I do not regard it as "wrong" for Mr Gillis to say "I do not recommend the offer" of the offer of compromise. And I do not regard that advice as having been negligently given. 9. In coming to this conclusion, I have had regard to the consideration that in my view Ms Murphy did receive advice on her prospects of success, potential costs liability and the real chance that the case may not settle but go to trial, following which she may be wholly or partially unsuccessful, as counsel for the legal practice argued. 10. Ms Murphy had received oral advice from Mr Gillis, Mr Cranitch SC, Mr Goot SC and probably, Mr O'Dowd. She had been told more than once that the Deed of Release issue was a "big hurdle" for her. She appreciated if Westpac made that issue good from their standpoint, she could lose the case entirely. 11. From reading respective position papers for the mediation, she understood the issues, she would have appreciated that the Bank was of the view that her only tenable claim was the RIP which it said was covered by its earlier Calderbank Letter and from her own position paper and the schedule of damages she understood that her costs at mediation were in the sum of $205,000. She understood from the advice she was given that if the proceedings did not settle, proceeded to trial and she failed to obtain a result more favourable than the offer of compromise, she would be liable for most of her own costs and Westpac's costs on an indemnity basis after the offer of compromise (Exhibit 4, p. 163, Westpac's Position Paper). 12. She also understood from Westpac's Position Paper and from the advice she had received in conference from Mr Goot, I infer, that there was a dispute about the legal interpretation of pay in the redundancy policy and about whether she was entitled to receive reasonable notice and a redundancy. She had also received a not insignificant sum under SGB's redundancy policy on retrenchment. 13. She grew in confidence that she had not signed a Deed of Release, and in the event with hindsight, that confidence was well justified, but nonetheless she had been advised in clear terms that it was an issue she had to overcome, viewing matters prospectively before she was likely to recover any judgment in her favour in the Federal Court. 14. I am not satisfied that Ms Murphy has proved that the advice she received in relation to settlement of her claim culminating in the negotiations in December 2011 was negligent and accordingly this aspect of the claim must fail. Breach of fiduciary obligation 1. Ms Murphy's claim for equitable compensation for breach of Mr Gillis's fiduciary obligation owed to her is really resolved on the same basis as the claim of the other SGB claimants, as I have said. I repeat that these matters are dealt with in my principal judgment (at [152] – [158]). The essence of the claimed breach was a "conflict of duty and duty" among Mr Gillis's remaining SGB clients. As I said in my principal judgment (at [157]; see Moore v Gillis and Ors [2022] NSWSC 14 at [170]), "to say that some of the eight clients may have wished to accept the offer so far as it concerned them and others to reject it, is not the same thing as saying that their 'interests are in opposition' to one another". I reiterate, the eight remaining clients had separate and unrelated interests in their personal causes of action against Westpac. There was no actual conflict between the duties owed by Mr Gillis to each client. In my principal judgment (at [158]) I said, "the global offer … cut across the careful strategy that Mr Gillis was attempting to pursue at that time". I do not accept there was any question of him acting both for and against any individual client. He was able to discharge his duty to advance the interests of each in relation to the global offer without impediment of his duty to advance the interests of the others in relation to it. As I have said, he continued to strive to advance the interests of each individual client in negotiating with Westpac to achieve a satisfactory result. I accept that each client, including Ms Murphy, instructed Mr Gillis, as he says, to reject the offer so far as it concerned him or her. For the reasons I sought to fully explain in the principal judgment (at [160]) the suggestion that the law of fiduciary duty required Mr Gillis to advise each of the eight clients to instruct separate solicitors to obtain independent advice about the global offer was in truth completely unworkable. It provided no practical solution to any putative breach of fiduciary duty. 2. Nor am I of the view that convening a meeting of the eight remaining clients to work through the issues about the global offer was either necessary or workable. Assuming that the meeting could be organised with the attendance of all eight of them between 9 a.m. 15 December 2011 and 4 p.m. 19 December 2011 with the weekend in between, there was really nothing to work through in circumstances where each had in any event independently rejected his or her component of the offer. Mr Gillis in any event sought to have the "one in, all in" condition removed and attempted to encourage Westpac through its solicitors to consider making offers on the damages rather than on an ETP basis. Neither effort proved successful and notwithstanding his reiteration of 9 the December offers as a global sum no further offers were ever made by Westpac. 3. I am not satisfied that there was any breach of fiduciary duty. Negligence in relation to the global offer 1. I have affirmatively found that Mr Gillis advised Ms Murphy of the global offer and took her instructions in relation to it. As I said in my principal judgment ([164]), I can accept that it may be, in a sense, negligent for a solicitor, for example to fail to inform a client of a relevant conflict or obtain informed consent to continue to act or recommend independent advice because the solicitor, through a want of reasonable care, has failed to recognise the conflict of duty and duty, in this case, for himself or herself. I do not accept, however, that occurred here. 2. As I explained in my principal judgment (at [169]) I do not regard Mr Gillis as having acted unreasonably in dealing with the global offer with the degree of celerity he brought to bear. This was not the first time he had spoken to Ms Murphy or any other client about settlement. The global offer emerged during an ongoing process of advice, instruction and negotiation over the previous period of approximately two weeks. Not everything said about settlement had to be repeated. Each of the clients including Ms Murphy was a banking executive and financially savvy. In the event, I am satisfied on the facts as I find them to be that Ms Murphy rejected the component of the global offer referrable to her out of hand. Had it been capable of her unilateral acceptance she still would have rejected it. I have expressed the view already that her "figure" of $300,000, $350,000 is a reconstruction informed by hindsight. The institution and maintenance of the claim for deceit and exemplary damages 1. There are three factors which stand out to me in respect of the claim for negligence in instituting the claim for deceit and related claims. The first is while Mr Gray emphasised, with twenty-twenty hindsight it must be said, the unwisdom of bringing a claim based on fraud, the related statutory claim under ss 52 and 82 TPA, and for negligent misstatement did not have fraud or its like as an element. Obviously, the related claims without fraud or some other aspect of contumelious disregard of Ms Murphy's rights were, of course, unlikely to sound in exemplary damages. 2. Secondly, while the schedule prepared for the 2 December 2011 mediation was formulated as a claim for damages, the claim for exemplary damages played no part in the settlement negotiations either at the mediation or subsequently. As I made clear in my principal judgment, other than by reference to the nebulous idea of a "settlement lever", the claim for exemplary damages was ignored in the formulation of the offers exchanged between the parties. From this, I infer that the claim in deceit and its associated claim for exemplary damages played no part in the "giving of advice either to cease or to continue litigating": Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 at [32]. 3. Thirdly, while not germane to questions of liability, the loss suffered by Ms Murphy by the institution and maintenance of these claims is limited to one-half of the party and party costs she would otherwise have recovered prior to 6 December 2011. The order that she pay Westpac's indemnity costs and denying her the party and party costs she otherwise would have recovered after 6 December 2011 followed from her failure to accept the offer to compromise of 2 December 2011. 4. I suppose a fourth point, or rather a conclusion based upon the first and second points to which I have come, is that the decision to institute and maintain these claims was and were "so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing": Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at 559 – 560. Accordingly, advocates' immunity applies to defeat Ms Murphy's claim under this head. This conclusion is bolstered by reference to Griffiths J's second judgment (Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266 at [47] – [54]) which demonstrates that these decisions were indeed intimately connected with the conduct of the case and affected the way it was to be conducted. Affidavit evidence from Mr Gillis read in the costs proceedings estimated that the claim in deceit and related claims took up 15 percent of hearing and preparation time. Evidence on behalf of Westpac estimated that 30 percent of the hearing time and of the total costs from February 2011 when the claims were advanced were "taken up with the claims in deceit, negligence and misleading and deceptive conduct". This aspect of Ms Murphy's claim should fail for that reason. Negligence 1. The submissions on behalf of Ms Murphy, and the other SGB claimants who pursued a claim for damages for deceit, stridently impugned the bringing and the maintenance of the claim. If I am wrong about the application of the doctrine of legal practitioner's immunity, it is necessary to make a decision about this aspect of the negligence claim. Despite which may seem pellucidly clear now, the facts I have found in relation to the development and the bringing of this claim demonstrate that far from being bullish or wrongheaded about this aspect of the claim brought on behalf of Ms Murphy and relevantly Mr Lawson and Mr Wittenberg, Mr Gillis proceeded with appropriate caution, although he formed the view that the matter should be pleaded, having considered the discovered documents, no step was taken to advance this aspect of the claims without the "approval" of senior counsel. Mr Gillis said that Mr Cranitch SC drafted the original pleading "himself". Mr Goot SC was briefed to advise in February 2011 and Mr Gleeson SC in August 2011 and again in mid-2012 as the hearing date approached. Mr Sullivan QC accepted the brief and presented the evidence and the argument at the hearing before Griffiths J with robustness. That the claim failed, even if the judge found it was without foundation, really only serves to prove that so far as it reflects upon Mr Gillis and the legal practice that the decision was wrong not that it was formed negligently: Studer v Boettcher [2000] NSWCA 263 at [54], Handley JA; my principal judgment at [17] – [19]. Causation 1. As I said in my principal judgment [22] – [24], it is for Ms Murphy to prove on the balance of probabilities, the facts necessary to establish legal causation in accordance with the provision of s 5D CLA. I am of the view that had Ms Murphy proved factual causation in accordance with s 5D(1)(a) no question in this case arises about whether the harm suffered by her, i.e. economic loss, is within the scope of the legal practice's liability. Duty owed by a solicitor to the client is a well-established category of actionable duty recognised by the law of negligence going back to the ancient "common callings". There is no reason to think, and to the extent to which factual considerations are involved, that in the circumstances, the legal practice's liability should not extend to the harm suffered by Ms Murphy had she been successful on the liability issues. 2. There is really no question about the offer of compromise. While Mr Gillis did not recommend its acceptance, Ms Murphy made it as clear as one could that she would not accept an offer of $100,000 plus costs. There is no reason to doubt her evidence even though I have formed the view that her evidence about her "figure" is a reconstruction. 3. Although one may accept that a client relies on her or his solicitor's advice at least by taking it into account in forming his or her own thinking, Ms Murphy's view was expressed so adamantly that had Mr Gillis with perfect, rather than merely reasonable, foresight recommended the offer to compromise she would have rejected it for the same reasons she gave in evidence and in her email of 13 December 2011. She has not proved causation on that claim. 4. Turning then to the rejection of the global offer, I acknowledge that it is obvious that the component of the global offer directed to Ms Murphy was, in absolute terms, a very significant increase on the offer to compromise. Assuming her solicitor and client costs were $200,000 rather than $245,000, it was thrice the offer to compromise. I have already said I am not persuaded on the balance of probabilities that Ms Murphy's own "figure" was $300,000 to $350,000 because I have formed a view that this evidence is reconstruction informed by hindsight and, for causation purposes especially, the reception of her evidence runs counter to s 5D(3)(b) CLA. 5. While the global offer component was much larger than the offer to compromise, it was still $255,000 short of Ms Murphy's offer of 9 December 2011 which was made in response to Mr Gillis's request, Ms Murphy states effectively, her "bottom line". From what she said in her email of 13 December 2011 about the offer to compromise being so much less than her annual salary of $500,000, and having regard to her instructions as to her bottom line, I am satisfied that a figure of $500,000 was Ms Murphy's bottom line. 6. Even if I am wrong about that finding, it remains that her component of the global offer was not open for acceptance by her unilateral act. It was enough that one of the then eight remaining SGB claimants rejected the offer. In any event, I accept Mr Gillis's evidence that Ms Murphy instructed him to reject, for her part, the global offer and remake the offer of 9 December 2011. 7. I am not of the view that the second letter of Westpac's solicitor of 15 December 2011 was a renewed invitation to treat from Westpac, whatever Mr Gillis thought about it. I have said more than once that in context and in substance it was a rebuke for inviting Westpac to bid against itself. I think this is tolerably clear from the circumstance that, leaving aside Mr Bechelli, Westpac made no further offer in any of the outstanding claims for SGB claimants. 8. As I said in my principal judgment (at [23]) as Beazley JA (as her Honour then was) explained in Donnellan v Woodland [2012] NSWCA 433 at [158], to satisfy the but for test implicit in s 5D(1)(a) CLA, it is necessary for Ms Murphy to prove that Westpac would have made another higher offer, the terms on which it would have been offered and that she would have accepted that offer on those terms. I am not satisfied that Ms Murphy has discharged this onus. 9. If one views the global offer through the lens of a putative breach of fiduciary duty, no different result is yielded on causation questions although they may not be identical. For one thing, s 5D CLA has no part to play. However, the counter-factual measures advanced in respect of the fiduciary breach case of either referring each claimant to independent lawyers for advice and possible representation during further negotiations or convening a meeting of all clients to work through the conflict of duties issues are in my opinion unworkable. For the reasons discussed in my principal judgment (at [189] – [190]); see also [175] – [176], [178]). 10. Concerning Ms Murphy's third category of claim, I have already made clear that Westpac were not prepared to treat with the SGB claimants on the basis that any damages were to be paid, whether exemplary or otherwise, on the basis of the claim in deceit and related claims. It follows from this that the only option available to Ms Murphy was to abandon those claims as others did. This consideration bolsters the decision I have made that instituting and maintaining these claims is covered by legal practitioners' immunity. Given the relative care exercised by Mr Gillis, as I have found, in relation to this particular matter, it seems unlikely that he would have advised any one of his clients to discontinue the claim. His view supported by senior counsel was that the claim had reasonable prospects of success and might return significant dividends to his clients. That he was prepared to engage with Westpac's solicitors in the December correspondence about this head of claim also demonstrates that Mr Gillis is not of the view that his clients should drop this claim under Westpac's threat of an adverse costs order if they did not. He provided the correspondence to his clients, including his response, which set out his genuine views about the prospect of success. Ms Murphy read the correspondence that had been sent to her and understood it. She was evidently not put off by Westpac's truculence. I repeat that she had done her own homework in relation to this issue and certainly felt that SGB or Westpac had acted in contumelious disregard of her rights. That she continued with the claim when others dropped out demonstrates that she was prepared to take the risk involved. 11. I am not suggesting, as it was put by counsel for Ms Murphy in their submissions, that on the legal practice's case she was a "reckless risk-taker". However, she understood that Westpac took a strong view about the appropriateness of the claim, were determined to staunchly defend it, and were not prepared to entertain settlement on the basis of it. Given that she took comfort from the determination of others to go on with the case notwithstanding the difficulties that may have been perceived, I am not satisfied that she would have abandoned the claim absent strong advice to that effect from Mr Gillis. For the reasons I have given, strong advice to that effect was not called for by a reasonable solicitor competent in the field which Mr Gillis professed. Conclusions on liability 1. For the reasons given, I am not satisfied that Ms Murphy has made good any of her claims and judgment must be entered for the legal practice. 2. The legal practice relied upon the partial defence of contributory negligence and sought an "apportionment" if found liable as between it and Ms Murphy on the basis that Ms Murphy's damages would be reduced by 20 percent for her contributory negligence. This is not a case where Mr Gillis on behalf of the legal practice made any firm recommendation one way or another as to settlement. He was punctilious, it seems to me, in avoiding doing so. It's true he did not recommend the offer to compromise and had he done so, Ms Murphy probably would have rejected his advice. However, to my mind this does not make her guilty of contributory negligence. No such advice was proffered, it can hardly be said she was contributorily negligent in failing to accept the offer of compromise when the solicitor's recommendation was not to. The same conclusion follows in relation to the global offer. Mr Gillis's advice was that the offer was not open for acceptance by Ms Murphy. In my judgment, this advice was correct. She could hardly insist that he go back to Westpac and purport to accept the component referrable to her claim on her behalf. On 15 December 2011, Mr Gillis was still intent in following through on his strategy which gave rise to the offers of 9 December 2011. Effectively this was his recommendation. He had secured from Ms Murphy her "bottom line" and had conceived of an approach which he hoped would achieve that result. I am not of the view that Ms Murphy was guilty of contributory negligence by rejecting his advice about the preferred approach. 3. It may be said that, given her evidence, which I have not accepted, she could have instructed Mr Gillis to put an offer on her behalf which would have given her $300,000 clear in response to the second letter of Westpac's solicitor of 15 December 2011. 4. There are two difficulties with treating this as contributory negligence. The first is that I have rejected her evidence that that was the figure she had in mind at that time. The second is, that I am not satisfied that Westpac would have paid it if it had been put as the stand alone offer on behalf of Ms Murphy. In this regard, for the purpose of contributory negligence, the onus lies on the legal practice. I am not satisfied that contributory negligence has been established. Contingent findings on quantum 1. As I said in my principal judgment, the parties agreed that after publication of my reasons, they should have the opportunity of either bringing in short minutes or addressing further on the quantum issues. Given my liability decision, those steps are unnecessary except for the entry of orders agreed in respect of Ms Murphy's additional claims in respect of allegedly excessive costs which were not run before me. I will allow liberty to apply. 2. I have set out my view as to the preferred approach to the assessment of economic loss in these matters (at [203] – [217]) of my principal judgment. I am of the view that a similar approach should be followed here. 3. I wish to acknowledge that counsel on both sides of the record have provided very detailed written submissions in relation to quantum. Mr Gray and Mr Raftery have also provided tables demonstrating the differences in the approach of each side. Counsel have also worked to agree upon the amount of the various components which inform the final figure. They are not agreed as to how the figures should be utilised in assessing damages. I am grateful for their efforts. 4. As with Ms Lavars case, I only propose to calculate the quantum I would have awarded had Ms Murphy been successful on her claim relating to non-acceptance of the offer to compromise. Again, this for the reasons I have rehearsed at [214] and [218] of my principal judgment. As in other cases, this is essentially because I do not regard the global offer as an offer made to Ms Murphy which was capable of acceptance by her alone. At best it may have provided an opportunity for further negotiations, about which I am doubtful given Westpac's failure to in fact engage in any further negotiations whatsoever with any remaining SGB claimant with the sole exception of Mr Bechelli. The details of the negotiations in Mr Bechelli's case were not expanded on before me, probably because of themselves they were irrelevant. Were I wrong about this approach, as in other cases, I would have considered that the assessment of any loss of a valuable opportunity to achieve a settlement when the global offer was made, presumably in excess of the offer to compromise, would involve a Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 ("Sellars") discount of 40 percent. 5. According to the schedule prepared by Mr Gray and Mr Raftery, the total loss suffered by Ms Murphy from her failure to accept the offer to compromise is $689,315.72. On the same basis, Mr Giles SC and Ms Cameron arrive at a subtotal of $497,315.72. After a Sellars discount of 50 percent and then a discount for contributory negligence of 20 percent, they suggest a final figure of $198,926.29. Both sides provided alternatives on the basis of the global offer, which in each case was substantially higher. 6. The difference between the parties largely relates to the position in relation to the costs due to Westpac. Each claimant has entered into a settlement with Westpac in relation to the adverse costs orders. The legal practice argue that each settlement was unreasonably unfavourable to each claimant including Ms Murphy. Separate figures have been provided in relation to the calculation propounded by the legal practice. I do not propose to descend into the detail of those figures. 7. As in other cases, for the reasons I gave in my principal judgment, I am not of the view that the claim based upon the failure to accept the offer of compromise should be subject to a Sellars discount. Ms Murphy's offer to compromise was on the table and was capable of acceptance by 5 p.m. on 16 December 2011. For her to prove some loss resulting from the defendant's negligence she need only establish on the balance of probabilities that Westpac would have made the offer – it already had – and she would have accepted it. On this basis, there is no occasion for making a Sellars discount. 8. As in other cases, I confess to having a little difficulty following the methodology propounded by counsel in relation to calculation of quantum. I prefer the simpler approach propounded in my principal judgment, always bearing in mind there may be no one correct approach to the assessment of damages. The starting point of course is the offer of compromise of $100,000. It is necessary to deduct from this the amount of the judgment obtained in the Federal Court by Ms Murphy of $43,758.28. In Ms Murphy's case because of the uncertainty in the evidence, and the view that the offer of compromise was a conversion of $300,000 inclusive into a cost plus offer that there would be no deduction for the margin of solicitor and client costs over party and party costs. I acknowledge that this is extremely unusual, but it seems to be necessary if I am to accept the evidence about the calculation of the offer to compromise. No further deduction need be made in the offer of compromise on this basis. 9. As the result was less favourable to Ms Murphy than the offer to compromise, Ms Murphy was required to pay Westpac's costs on the indemnity basis after 6 December 2011. Because she ran the deceit and related claims which were held to be without foundation, Griffiths J exercised his discretion to reduce her pre-6 December 2011 party and party costs payable by Westpac by a factor of 50 percent. For the reasons I have given, that sum may have been as great as $100,000 on the assumptions as to costs up until the mediation I am making. 10. There is a difference between counsel as to the amount of legal costs paid to the legal practice by Ms Murphy after 6 December 2011. It would seem that part of the difference may relate to the other "excessive costs" claims not decided by me, but this may not be correct. Ms Murphy contends the figure is $316,074. The legal practice contends $178,061. I propose to adopt the legal practice's figure because of my concern about the accuracy of the claim made by Ms Murphy. 11. The amount of the settlement arrived at with Westpac for the adverse costs is $345,000. The legal practice says that a reasonable settlement would have been $225,000. I am prepared to find that the amount agreed to by Ms Murphy represents a reasonable settlement. Her current lawyers negotiated the agreement and obtained a discount. As I remarked in my judgment in Mr Moore's case (at [193]), the matter is complicated because of the two-level settlement negotiated. The details are as set out in Moore v Gillis [193] – [194]. Given that the settlement was negotiated at arms-length by experienced lawyers about whom no criticism is levelled, I regard the settlement as between the law practice and Ms Murphy for the purpose of assessing her contingent damages as reasonable. I will allow the amount of $345,000, subject to a deduction for the costs of Ms Murphy's unsuccessful Full Court appeal for the reasons discussed in my principal judgment at [216] (see also Moore v Gillis at [192]). 12. There remains a question about the legal practice's entitlement to claim costs after 6 December 2011, which has not been resolved by finalisation of the assessment process. The legal practice argues that this issue for that reason cannot be dealt with as damages. As in Mr Moore's case, I would have been prepared to make a declaratory order in terms I would have required the parties to bring in to finalise the proceedings and quell all issues in dispute. 13. The components of damages I would have awarded may be calculated as follows: Offer to compromise $100,000.00 Less 50 percent of party and party costs to 6 December 2011 $100,000.00 Nil Less judgment recovered -$43,758.28 Plus for legal expenses paid after 6 December 2011 $178,061.00 Settlement with Westpac $345,000.00 TOTAL $479,302.72 Orders 1. My orders are: 1. Judgment for each defendant against the plaintiff; 2. The plaintiff to pay the defendants' costs; 3. Liberty to apply on a date to be arranged with my associate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2022