Supreme Court New South Wales Medium Neutral Citation: Marshall v Prescott (No 3) [2013] NSWSC 1949 Hearing dates: 12 to 14, 16 and 19 August 2013; last written submissions 9 October 2013. Decision date: 20 December 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: The proceedings be dismissed. Catchwords: EQUITY - claim for damages for breach of fiduciary duty and obligation of confidence - solicitor and former client - fiduciary duty - scope and duration - before and after termination of retainer - obligation of confidence - whether there was a breach of confidence - whether solicitor misused confidential information of former client - circumstances in which information was imparted - limited retainer from former client - accepted that solicitor also retained by a different client with a potentially competing claim - information received to advance common objective of both clients to maximise recovery - information derived not exclusive to former client - whether allegations went outside the pleaded case. ESTOPPEL - res judicata - judgments by consent - interlocutory orders - whether cause of action sued on in these proceedings merged into a judgment already entered - issue estoppel - whether orders necessarily decided the defendant breached his fiduciary duty or obligation of confidence. TORT - duty of care - conspiracy by lawful and unlawful means. COSTS - solicitor/client costs of previous proceedings - whether recoverable - whether estoppel arises - whether the issue of costs of previous proceedings was determined by costs orders made in those proceedings. Legislation Cited: - Civil Procedure Act 2005 - Evidence Act 1995 - Family Provision Act 1982 Cases Cited: - Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 - Anderson v Bowles (1951) 84 CLR 310 - Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 - Baker v Campbell [1983] HCA 39; 153 CLR 52 - Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; 48 NSWLR 1 - Berry v British Transport Commission [1962] 1 Q.B. 306 - Blair v Curran (1939) 62 CLR 464 - Bristol & West Building Society v Mothew [1998] Ch 1 - Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 - Church v Price [2000] NSWSC 754 - Coco v AN Clark (Engineers) Ltd [1969] RPC 41 - Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 - Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 - Cooper v Winter [2013] NSWCA 261 - Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 - Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 - Fleming v Marshall [2011] NSWCA 86; 279 ALR 737 - Glazier v Australian Men's Health (No 2) [2001] NSWSC 6 - Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) SR (NSW) 69 - Jack L. Israel Ltd v Ocean Dynamic Lines SA & Ocean Victory Ltd [1982] 2 Lloyd's Rep 88 - Jackson v Goldsmith (1950) 81 CLR 446 - Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 - Kelly v Cooper [1993] AC 205 - Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 - Marshall v Carruthers [2002] NSWCA 47 - Marshall v Prescott (No 2) [2013] NSWSC 1254 - Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 - Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; 54 NSWLR 146 - Mills v Day Dawn Block Gold Mining Co Ltd (1882) 1 QLJ 62 - Murray v Yorkshire Fund Managers Ltd [1998] 1 WLR 951 - National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 - Nau v Kemp & Associates Pty Ltd [2010] NSWCA 164; 77 NSWLR 687 - O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 - Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 - Prince Jefri Bolkiah v KPMG (a Firm) [1999] 2 WLR 215 - Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156 - Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 - Rogers v R [1994] HCA 42; 181 CLR 251 - Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 - Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291 - Spector v Ageda [1973] Ch 30 - Streetscape Projects (Australia) Pty Ltd & Anor v City of Sydney [2013] NSWCA 2; 295 ALR 760 - Worth Recycling Pty Ltd v Waste Recycling & Processing Pty Ltd [2009] NSWCA 354 Texts Cited: - Gurry on Breach of Confidence, 2nd Ed (2012) - McGregor on Damages, 17th Ed (2003) K.R. Handley, Spencer Bower and Handley: - Res Judicata, 4th Ed (2009) Category: Principal judgment Parties: Margaret Lesley Marshall (First Plaintiff) Kim Neil Marshall (Second Plaintiff) Michael Prescott (Defendant) Representation: Counsel: C.J. Bevan, E.W. Young (Plaintiffs) J.C. Kelly SC, B. McManus (Defendant) Solicitors: Turner Freeman (Plaintiffs) Colin Biggers & Paisley (Defendant) File Number(s): 2009/297404 Judgment 1On 31 May 2000 the late Neil Marshall was killed in an aircraft accident in the Spencer Gulf in South Australia. At the time of his death Mr Marshall was in a de facto relationship with Ms Linda Carruthers. However he was still legally married to the first plaintiff in these proceedings, Mrs Margaret Marshall. They had one son, being the second plaintiff, Kim Marshall. Mrs Marshall was the executrix of Mr Marshall's will. She and her son were the only beneficiaries. 2Unfortunately Mr Marshall's death has led to a great deal of litigation none of which I suspect has been of much benefit to the plaintiffs (the "Marshalls"). In these proceedings they sue a solicitor based in South Australia, Mr Michael Prescott. As I will explain, some time shortly after the accident Mr Prescott commenced to act on behalf of the families of some of the persons who had died in the accident, including Ms Carruthers. In 2001 he contacted Mrs Marshall for the purpose of ascertaining whether she wished to join in litigation in the United States against entities associated with the manufacture and installation of the engine in the aircraft ("Lycoming"). Mrs Marshall referred Mr Prescott to her solicitor, Mr Goldberg from Turner Freeman. Thereafter Mr Prescott played a co-ordinating role on behalf of his own clients and the legal representatives of other families of victims of the crash in relation to, amongst other matters, the litigation in the United States. 3Mr Prescott's efforts led to success. He made contact with a New York based firm, Kreindler & Kreindler ("Kreindlers"). With its assistance, litigation funding was arranged and proceedings were commenced in Pennsylvania (the "Pennsylvania proceedings"). As noted below there was considerable debate about who retained Kreindlers and for whose benefit the Pennsylvania proceedings were conducted. I do not consider it necessary to resolve that dispute. There is also a dispute as to whether any duty owed by Mr Prescott to Mrs Marshall was qualified by the fact known to all that he was retained by Ms Carruthers. I find that it was. 4The Pennsylvania proceedings settled in principle in early 2003 and an agreed amount was allocated for distribution in respect of each deceased. Shortly afterwards Mr Goldberg wrote to Kreindlers demanding the unconditional release of those funds to Turner Freeman. Kreindlers resisted stating that it was concerned about a competing claim by Ms Carruthers. Eventually it provided the funds but only on condition that Mrs Marshall commence proceedings to vindicate her entitlement to the funds and they not be distributed without a court order. In the meantime Mr Prescott's retainer with Mrs Marshall was terminated. 5After receiving the funds Mrs Marshall commenced proceedings against Ms Carruthers concerning their respective entitlements to the settlement proceeds (the "Marshall proceedings"). Mr Prescott acted for Ms Carruthers for a period. He ceased to act in June 2005 although he continued to assist her after that time. In November 2005 Mrs Marshall commenced proceedings against Mr Prescott (the "Prescott proceedings"). She obtained an interlocutory injunction against Mr Prescott preventing him from assisting Ms Carruthers. Eventually she obtained final relief by consent to that effect and an order for the payment of her costs on a party/party basis. She also obtained consent orders in the Marshall proceedings which represented almost complete success. The end result was that she obtained the entirety of the settlement funds and an order for the payment of an agreed amount for party/party costs. 6Mrs Marshall sues Mr Prescott to recover the difference between the solicitor/client assessment of her costs of the Marshall proceedings and the Prescott proceedings and the amounts already recovered for costs pursuant to the orders just noted. She and Kim Marshall also seek exemplary and punitive damages. They allege that certain conduct by Mr Prescott and others which was alleged to be in breach of various legal duties he is said to have owed to them led to Kreindlers imposing the conditions that it did on the release of the settlement funds which in turn precipitated the Marshall proceedings and then the Prescott proceedings. They also allege that the conduct of Mr Prescott in acting for Ms Carruthers in the Marshall proceedings and then providing her informal assistance was in breach of various legal duties owed by him. 7For the reasons that follow, the Marshalls' case must fail. This is principally so because, as framed, the case against Mr Prescott failed to have proper regard to the authorities binding on this Court at first instance which hold that any fiduciary duty owed by Mr Prescott to the Marshalls ceased on the termination of his retainer in May 2003. The case pleaded in the Further Amended Statement of Claim ("FASOC") only involved a very narrow set of allegations against Mr Prescott in respect of his conduct before the retainer was terminated. None of them was established as a matter of fact. 8The balance of the case concerned Mr Prescott's conduct after the termination of his retainer. It is very unwise for a solicitor who is retained by multiple clients even on a limited basis to later act for one of those clients in a dispute between them. Such conduct will often lead to the solicitor being injuncted from acting, as Mr Prescott was in this case. Nevertheless the only relevant legal obligation owed by Mr Prescott to Mrs Marshall after the termination of his retainer that supported a claim for damages was his ongoing obligation of confidence. The Marshalls have failed to establish that the pleaded breaches of this obligation were made out. 9The balance of this judgment is structured as follows: [10] to [32]: Mr Prescott's retainer [33] to [43]: The Pennsylvania Proceedings [44] to [50]: The settlement of the Pennsylvania proceedings [51] to [70]: The termination of Mr Prescott's retainer [71] to [86]: The release of the funds and the commencement of the Marshall proceedings [87] to [93]: The Prescott proceedings [94] to [97]: The resolution of the Prescott Proceedings and the Marshall proceedings [98] to [100]: The solicitor/client costs incurred by Mrs Marshall [101] to [107]: Kreindlers' retainer and the complaint [108] to [133]: The fiduciary duty owed by Mr Prescott to the plaintiffs [134] to [141]: Res judicata and issue estoppels relied on by the plaintiffs [142] to [192]: Breach of Confidence [143] to [149]: - Background [150] to [156]: - Principles [157] to [162]: - All the information obtained by Mr Prescott [163] to [191 ] : - Schedule A information [192]: - Conclusion [193] to [197]: The pleaded case [198] to [217]: The (so called) Prescott's First Marshall Misconduct [218] to [228]: The (so called) Prescott's Second Marshall Misconduct [229] to [236]: The (so called) Prescott's Third Marshall Misconduct [237]: The (so called) Prescott's Fourth Marshall Misconduct [238] to [253]: Mr Prescott's estoppel defences [254]: Proportionate liability [255] to [256]: Causation and quantum [257]: Orders Mr Prescott's retainer 10Mrs Marshall and the late Mr Marshall were married in 1967. Kim Marshall was born in 1980. In December 1992 he executed his last will naming Mrs Marshall as the executrix. At some point the marriage broke down. In 1995 Mr Marshall commenced a de facto relationship with Ms Carruthers. In 1996 Mr and Mrs Marshall effected a property settlement but they did not divorce. 11As noted, on 31 May 2000 Mr Marshall was killed in an aircraft accident in the Spencer Gulf. Seven other persons on the plane were killed. 12On 9 November 2000 probate of Mr Marshall's will was granted to Mrs Marshall. 13In December 2000 Ms Carruthers commenced proceedings under the Family Provision Act 1982 (the "FPA proceedings"). 14At some point in this period Ms Carruthers retained Mr Prescott to act on her behalf in any claim for compensation arising out of the accident. Mr Prescott also received instructions to act on behalf of the families of some of the other persons killed in the accident and was in contact with the legal representatives of the remainder. 15In May 2001 Mr Prescott telephoned Mrs Marshall. According to Mrs Marshall he stated: "I am acting for Linda Carruthers and families of victims of the crash, looking at bringing an action today or tomorrow in the United States in respect of all the victims of the crash. Is Kim interested in participating?" Mrs Marshall replied: "I am Neil's wife and Kim's mother. Kim is not here." Mr Prescott then stated: "I don't know anything about you." Mrs Marshall then referred Mr Prescott to her solicitors, Turner Freeman. If it was not otherwise obvious, Mrs Marshall accepted in her oral evidence that she knew that Mr Prescott acted for Ms Carruthers. 16This conversation appears to have led to a conversation between Mr Goldberg and Mr Prescott on the morning of 29 May 2001. Mr Prescott did not give evidence in these proceedings. Mr Goldberg did but he did not address this conversation. In any event, later that day Mr Goldberg wrote to Mr Prescott referring to their conversation, confirming that Turner Freeman acted for Kim Marshall and Margaret Marshall, providing certain details such as their address and occupation, and stating "they instruct you to arrange for Roger Clark, lawyer in the USA to issue a complaint/court process in California (or Florida or anywhere he sees fit) to preserve their rights arising out of the crash in which Neil Marshall died". Mr Clark was an aviation law specialist based in California. 17On 31 May 2001 Mr Prescott wrote to Turner Freeman outlining the result of his work to that point in identifying potential causes of action that could be pursued in the USA against the manufacturer of the aircraft's engine, the forum in which to sue and the potential sources of litigation funding. It is clear that the letter was a standard one sent to all the legal representatives of the family members of the victims. At the conclusion of the letter Mr Prescott listed the names of each deceased, their dependants and legal representatives "[i]n order that everyone is aware as to the potential parties and their representation". In respect of Mr Marshall he stated: "Deceased: Neil Marshall Kim Neil Marshall (son) Linda Hope Carruthers (de facto) Represented by: Michael Prescott at Prescotts Margaret Lesley Marshall Represented by: Turner Freeman, Sydney." 18On 14 June 2001 Mr Goldberg wrote to Mr Prescott, acknowledging receipt of his letter but asking him to note that Turner Freeman acted for Kim Marshall as well as Mrs Marshall. He noted that "[w]e obviously have no difficulty with you acting as overall representative in terms of liaising with Roger Clark on behalf of our clients". 19On 26 July 2001 a judge of the (then) Compensation Court of New South Wales awarded Ms Carruthers $200,000.00 based on her being a dependant on Mr Marshall. Nothing was awarded to Mrs Marshall or Kim Marshall. (Mr Marshall's death arose out of his travelling in the course of his work as a trade union organiser.) 20On 3 August 2001 Macready AsJ made orders in the FPA proceedings. His Honour awarded Ms Carruthers a half interest in Mr Marshall's property at Newtown on certain conditions, as well as certain items of personalty with Kim Marshall to receive a legacy out of the estate. 21Mr Prescott pursued litigation funding from Insolvency Litigation Fund Pty Ltd ("ILF") for him and counsel retained by him, Mr Greenwell, to travel to the USA and investigate the claim. ILF appears to be an entity associated with the Insolvency Management Fund ("IMF"), an Australian based litigation funder. On 21 November 2001 Mrs Marshall signed the funding agreement with ILF on her own behalf and on behalf of Kim Marshall. Paragraph D of the recitals to this funding agreement records that the "Appointor", namely Mrs Marshall, claims to be entitled to be paid money from certain entities arising from the aeroplane crash. 22Clause 5.3 provided that the "Lawyers", being Mr Prescott and Mr Greenwell, were retained by the Appointor but would be paid directly by ILF. Otherwise the agreement made provision for the Appointor to nominate ILF as debt collector to recover loss arising out of the accident and conferred on ILF rights to receive reports and information from the "Lawyers" and Kreindlers. (It thus appears that contact had been made with Kreindlers by this time.) Clause 9.1 granted ILF first right to recover the investigation costs, the costs of funding any litigation and 20% of any settlement received on or before 30 June 2002, and 30% of any settlement received after. As explained below, these fee arrangements were subsequently amended. 23On 7 February 2002 Mr Prescott sent a detailed letter to all of the representatives, including Mr Goldberg, updating them on the outcome of their research into liability, the appropriate forum and the obtaining of litigation funding. He referred to discussions he had with Kreindlers who was said to be "very keen to run this action in the United States". Kreindlers was said to regard the case as having great merit but be concerned about whether the United States was the appropriate forum. His letter advised that he had been "looking at an agreement with the Americans [ie Kreindlers] at 30% of the damages recovered" as well as an agreement with the "Australian funder", IMF, under which a further 30% would be taken. Despite this he outlined how both had agreed to each take a 20% share of any verdict. Mr Prescott also advised that the proceedings "will be run not as a class action but rather on an individual basis" with a "separation of claims on behalf of the passengers as opposed to both the airline and the pilot's family". He concluded by emphasising the importance of finalising the various agreements. 24On 22 February 2002 Mrs Marshall's appeal against Macready AsJ's judgment was upheld (Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47). Hodgson JA (with whom Young CJ in Eq and Palmer J agreed) found that Ms Carruthers had failed to establish that the "provision for her was inadequate for her proper maintenance" (at [67]). In the judgment, his Honour referred to Ms Carruthers as Mr Marshall's "de facto wife". 25On 20 March 2002 Mr Prescott circulated an email to the various representatives stating that he and Mr Green had been "able to arrange funding for the US claim through ILF in Sydney". The proposed contingency fee was reduced to one third of the total verdict excluding out of pocket expenses so that "[n]et recovery is the gross settlement less out of pocket expenses". The contingency fee was proposed to be split between ILF and Kreindlers, with one third to be paid to the former and two thirds to the latter. He stressed the urgency for the signing of the retainer agreements for both ILF and Kreindlers and added: "Firstly, the US agreement is to be signed by one person on behalf of all plaintiffs claiming under a deceased. I am advised that this person must be the executor or administrator of the estate. In the [United States] they are known as 'estate representatives'. These people sign on behalf of all plaintiffs even if they did not have any entitlement under the will or the Act. The ILF require that each potential adult plaintiff sign and if they have plaintiff dependants, then on their behalf also." (emphasis added) 26On 21 March 2002 Mr Prescott and Mr Goldberg exchanged emails in relation to the execution of Kreindlers' retainer agreement. On that day Mrs Marshall signed its retainer. Underneath her signature appeared the words "In respect of the death of Neil Marshall" and against the phrase "Full Name of signatory" she was described as "(Executor/Personal Representative)". 27On the same day each of Mrs Marshall and Kim Marshall separately signed a revised funding agreement with ILF. This agreement was similar to the previous one although it contemplated that proceedings would be commenced. Paragraph H of the recitals to the agreement records that the "Appointor" had appointed Kreindlers to conduct proceedings in the USA on the basis that Kreindlers fund all costs and disbursements other than those expressly agreed to be paid by ILF. 28Clause 5.3 again provided that the "Lawyers" (ie Mr Prescott and Mr Greenwell) would be retained by the "Appointor" and be paid directly by ILF. Clause 10 dealt with the procedure to be adopted if a settlement was proposed. ILF's fees were revised so that after repayment of investigation and funding costs, it was to receive 11.111% of any settlement or judgment achieved in proceedings in the United States, and 35% of any settlement or judgment achieved from any proceedings that might be conducted in Australia. 29The next day Mr Goldberg wrote to Mr Prescott enclosing the signed agreements. In relation to Kreindlers' retainer agreement, Mr Goldberg stated: "[We enclose the] Kreindler and Kreindler retainer agreement signed by Margaret Marshall. As we understand it, this agreement is signed on behalf of Kim Marshall and Linda Carruthers, correct us if we are wrong." (emphasis added) 30In her affidavit Mrs Marshall stated that she executed, inter alia, this agreement "on my own behalf and on behalf of Kim". In cross examination Mr Goldberg stated that before Mrs Marshall signed Kreindlers' retainer agreement he told her that she would be signing on behalf of Kim Marshall and Ms Carruthers. Mrs Marshall stated that she could not remember being told that but when shown Mr Goldberg's letter was prepared to accept that "he did tell me". I am satisfied that she was told. 31At this point it is only necessary to note that, irrespective of whether this letter had the effect of making Ms Carruthers a party to the retainer agreement with Kreindlers, at the very least it reflects a common position between Mr Prescott and Mr Goldberg (and Mrs Marshall, Kim Marshall and Ms Carruthers) that Kreindlers was engaged to work to further the interests of all the claimants and potential claimants claiming through the late Mr Marshall, namely Mrs Marshall, Kim Marshall and Ms Carruthers. 32On or about 8 April 2002 Ms Carruthers also signed the revised funding agreement with ILF. It was in the same terms as the agreement signed by Mrs Marshall, but this time defined Ms Carruthers as the "Appointor". Thus the recitals recorded that she "claim[ed] to be entitled" to be paid money by certain entities as a result of the crash, and that she had appointed Kreindlers to conduct proceedings in the United States. It also includes clause 5.3 pursuant to which she appointed Mr Prescott and Mr Greenwell. The Pennsylvania Proceedings 33On 29 May 2002 the Pennsylvania proceedings were commenced in the United States District Court Middle District of Pennsylvania. Lycoming was the defendant. The plaintiffs are described in the complaint as "Margaret Lesley Marshall and Kim Neil Marshall, individually and as Executors and Personal Representatives of the Estate of Neil Marshall, Deceased". The complaint included the following paragraphs: "2. Plaintiffs MARGARET LESLEY MARSHALL and KIM NEIL MARSHALL have been or will be appointed Executors and Personal Representatives of the Estate of Neil Marshall (the 'Estate') and they bring this lawsuit in said capacity on behalf of the Estate and surviving family members of Neil Marshall. ... 20. As a result of the foregoing, the plaintiffs MARGARET LESLEY MARSHALL and KIM NEIL MARSHALL, the decedent's survivors and the Estate of Neil Marshall are entitled to recover the full wrongful death and survival compensatory damages, including damages for loss of the decedent's earnings, loss of support, loss of services, loss of prospective inheritance and future accumulations, loss of protection, care, counsel, society and companionship, loss of parental training, education, care and guidance, loss of consortium, the decedent's mental and physical pain and suffering and fear of impending death, burial and funeral expenses, punitive damages and other damages for economic and intangible losses as may be permitted by Pennsylvania law." (emphasis added) The complaint concluded with the following recitation: "Wherefore, plaintiffs MARGARET LESLEY MARSHALL and KIM NEIL MARSHALL, as Executors and Personal Representatives of the Estate of Neil Marshall, deceased, and on behalf of all heirs and next of kin of Neil Marshall, deceased, demands judgment against defendants ..." (emphasis added) 34On their face the emphasised portions of these parts of the pleading are capable of referring to Ms Carruthers. In December 2006 Mr Goldberg obtained an opinion from a law firm in Pennsylvania which in part addressed this. I discuss this below (at [93] and [107]). 35On 21 June 2002 Mr Prescott sent a copy of the pleadings filed in Pennsylvania to Mr Goldberg. 36On 25 July 2002 Mr Goldberg sent an email to Mr Green at Kreindlers which was copied to Mr Prescott. He stated, inter alia: "I now understand that you would like us to provide you with more information as to the assessment of damages. I can only do that in respect of Kim and Margaret, but not Linda. Michael Prescott and I have an agreement that I will send material to you directly. By way of background, I advise that my clients and Linda have been involved as opposing parties in various actions in Court here over the estate of Neil Marshall, and their relationship is not good." (emphasis added) 37Mr Goldberg also queried paragraph 20 of the complaint and the manner in which damages were calculated and recovered. He stated, inter alia: "There is no guidance on this provided in the statement of claim/ complaint other than paragraph 20. I would point out that my two clients and Linda Carruthers are adults and in New South Wales where I practice law, damages are not awarded to adults in respect of many of the losses that are set out in paragraph 20 of the complaint. How will the US Court calculate damages for 'loss of services' and 'loss of parental support'?" (emphasis added) 38Mr Goldberg sent a further email on 29 July 2002 which was apparently in response to an email from Mr Green at Kreindlers that was not tendered. The opening part of the e-mail is of particular significance. Mr Goldberg stated: "As I have previously advised you, all matters relating to damages in respect of Kim Marshall and Margaret Marshall ... have to be dealt with directly with me, and not Prescotts. We do not and cannot act for Linda Carruthers. I have discussed these issues with Michael Prescott and as I understand it, he and his client agree with this approach." (emphasis added) 39Mr Goldberg then posed a number of detailed questions for Mr Green about the manner of assessment of damages in respect of the proceedings commenced in Pennsylvania. The closing part of the e-mail stated: "I look forward to your detailed and complete response. Please note that the response should be forwarded to me only at first instance and not forwarded to Prescotts. These inquiries are made in my capacity as solicitor for the Marshalls and for the Estate in whose interests we understand you act. I am anxious to avoid conflicts of interest." (emphasis added) 40On 30 July 2002 Mr Green responded. He expressed concern about the delays in obtaining information. He provided a short summary response to Mr Goldberg's questions addressing the position if the matter was covered by US law as follows: "The action[s] in the US have been, and had to be, brought by the personal representative of the decedent's estate, but are brought on behalf of the estate and the decedent's survivors. If the court applies US law, each dependant survivor will obtain an award for loss of support and an award will be made to the estate for the decedent's pre-death pain and suffering. If there are no dependent survivors, an estate accumulations award will be made to the estate and will go to the estate beneficiaries. The award for pain and suffering would not be a 'personal' recovery as I understand your question." 41Mr Goldberg responded on 31 July 2002 raising the existence of a possible conflict of interest on the part of Kreindlers for the first time stating, inter alia: "[i]n my opinion there are potential problems in you acting for Carruthers and for my clients. Their respective interests are not the same and part of the problem in supplying the information you want is caused by their conflicts". 42On 1 August 2002 Mr Green responded by rejecting the existence of any conflict. He stated that "I have been retained by each decedent's estate and my only role is to maximise the recovery for each decedent's estate". He stated that his role was that he would "not be involved with any intra or inter-family disputes and the distribution of the monies is a separate issue". 43The debate continued in an exchange of emails on 5 August 2012. Mr Goldberg advised that his client had "an objection to you communicating with Carruthers in any way or even acting in her interests". He reminded them that the Court of Appeal found that Ms Carruthers had no interest in the estate. Mr Green responded that his firm only acted for the estate and that to the extent there was a dispute between those who claimed to have an interest in the estate then Kreindlers "cannot become involved" and added "[i]f Linda Carruthers was not dependent on the decedent and doesn't have an interest in the estate, then there won't be any dispute". He reminded Mr Goldberg that this was a debate for a later time as they had to overcome a motion to dismiss the proceedings on a forum non conveniens basis and, if so, then prove liability. The settlement of the Pennsylvania proceedings 44On 11 February 2003 Mr Bowman, the IMF representative, circulated an email advising the various representatives that a meeting on that day had been arranged between [him] and Mr Green and representatives of Lycoming. He advised that it was anticipated that the discussions would cover the potential for settlement and noted that: "Before any offer of settlement can be properly assessed, each Plaintiff will need to know what their share of the settlement amount will be. The plaintiffs have agreed to be bound by an advice from Justin as to how much each plaintiff is likely to receive in the US should the cases be successful. Each Plaintiff will then receive its proportionate share of the settlement sum." 45This prompted a further request from Mr Goldberg to Mr Green about the manner in which damages would be calculated. On 13 February 2003 Mr Green responded. His email set out three caveats. First, there was likely to be a significant contest as to whether the damages were governed by US law or Australian law. Second, the quantum of damages would ultimately be determined by a jury and thus there was no "formula" to be applied. Third, any estimate of damages had to reflect the risk of losing the forum non conveniens argument or failing to establish liability. Mr Green's email then addressed the method of calculating damages if "US law" was applicable. He did not state whether there were differences between the various states or if any particular considerations applied to cases litigated in Pennsylvania. His advice confirmed that the calculation of the amount payable in respect of each deceased was determined principally, and perhaps solely, by reference to the deceased's earning capacity and imputed pain and suffering as opposed to, by way of example, determining an amount of loss per dependant. 46Mr Green sent a further email to Mr Goldberg on 15 February 2003 stating as follows: "I can only say what the law is here in the United States. Wrongful death damages are not estate assets - they are paid to the survivors and do not pass through the estate. The persons entitled to the damages are identified in the intestate law - spouse, children and maybe parents typically (parents are generally cut out if there are children). Wrongful death damages are awarded based upon the survivors' loss. Damages awarded to compensate for the pain and suffering of the decedent are estate assets and go through the estate. If there is a settlement, we generally ask the Court to award very little for pain and suffering - in the U.S. wrongful death damages are not taxed, but estate assets are subject to estate tax. If we obtain a settlement, the proceeds will likely be distributed in accordance with Australian law since the estates are all in Australia. Hope that this answers your questions." 47On 19 February 2003 Mr Greenwell sent an email to the various representatives attaching a document which provided a breakdown of the percentage of any total settlement that was payable to "each Plaintiff". 48Sometime around 21 February 2003 and at the time the motion to dismiss was due to be heard an in-principle settlement of the Pennsylvanian proceedings was reached. Lycoming agreed to pay US $5.5 million in total. 49On 26 February 2003 Mr Goldberg sent a detailed letter posing a series of questions to Mr Green concerning the quantification of damage, the apportionment of amounts for economic loss and pain and suffering, and the taxation treatment of the amounts paid. He advised Mr Green that it was "important that we obtain answers to [the questions] given that there have been substantial disputes in the past in respect of distributions of money flowing to the estate of [the] late Neil Marshall which has resulted in two sets of Court proceedings in New South Wales so far". 50On 14 March 2003 a meeting was held at Mr Greenwell's chambers in Adelaide. A number of the legal representatives of the families attended including Mr Brett Allen from Turner Freeman. Mr Allen made a file note of the meeting which he sent to Mr Goldberg on 17 March 2006. Mr Allen's note records a discussion concerning the cost and logistics of effecting the settlement. The note also included the following: "Michael Prescott raises the potential issue of Marshall and Carruthers' competing claims. Michael Prescott says that 100% of the amount recovered on behalf of Marshall should go to the estate and be held in trust pending agreement between Mrs Marshall and Ms Carruthers. Michael Prescott told BMA that Michael would not be instructed to act for Carruthers in any dispute with Mrs Marshall." The termination of Mr Prescott's retainer 51On 8 April 2003 Mr Greenwell sent a letter to Mr Goldberg attaching a copy of the final agreed percentage allocations in respect of each deceased. The nominated percentage in respect of Mr Marshall was 8.75%. 52On the same day Mr Goldberg wrote an emphatic letter to Kreindlers. It constituted a demand that Kreindlers forward the entire net amount of the settlement proceeds that concerned Mr Marshall to Turner Freeman. To support this demand it set out three assertions under the headings "Proposition 1", "Proposition 2" and "Proposition 3". Proposition 1 was that Kreindlers and Turner Freeman acted for the same clients, namely Kim Marshall and Mrs Marshall individually and Mrs Marshall in Mrs Marshall's capacity as executor of Mr Marshall's estate. Later in the letter it was asserted that the "only retainer" Kreindlers had was with Mrs Marshall (ie it did not extend to Ms Carruthers). The letter enclosed Kreindlers' retainer agreement but did not enclose a copy of Mr Goldberg's letter of 22 March 2002. The second proposition was that the only persons who either had a "legal interest" or were entitled beneficially to a share in the proceeds were Mrs Marshall and Kim Marshall. This was said to follow from the terms of the court process filed in the Pennsylvanian proceedings that are extracted above. 53The third proposition in Mr Goldberg's letter was said to be as follows: "Any failure on the part of Kreindler & Kreindler or Turner Freeman to ensure that the settlement amount is distributed in accordance with the explicit instructions of the Marshalls will involve a breach of the professional obligations of those attorneys to their mutual clients." 54Mr Green responded by letter dated the same day and apparently received by facsimile by Turner Freeman on 9 April 2003. In view of how Mrs Marshall's case was put it is necessary to set out the text of the response: "This responds to your facsimile of April 8, 2003. We represent the Marshall estate[s] in this matter and cannot become involved in a dispute between individual estates or wrongful death distributees. The representatives of the Marshall estate[s] owe a fiduciary duty to ensure that the settlement is distributed equitably to all persons entitled to receive the proceeds under Australian law. If a potential claimant is cut off, that claimant may sue the estate representative and the estate[s] lawyers for breach of their fiduciary duty. Distributing the settlement proceeds without dealing with these issues is contrary to your clients' interests. Your letter is not clear. You need to clearly inform me of the dispute between potential settlement distributees. What is the problem? Unless an agreement can be reached, we will have to hold the settlement until a court of competent jurisdiction, most likely in Australia, rules on the proper settlement distributees." (emphasis added) 55On 9 April 2003 Mr Goldberg wrote to Mr Greenwell terminating his retainer on behalf of Mrs Marshall and Kim Marshall. The next day he wrote to Mr Green reiterating his request for Kreindlers to account to them for the total amount of the net settlement referable to Mr Marshall. He pointed out that the relevant "Australian law" as referred to by Mr Green was the law of New South Wales and the only persons with any rights to claim against the estate of the deceased person under that law were Mrs Marshall and Kim Marshall. 56It seems that one letter to Mr Green on 10 April 2003 was not enough. Mr Goldberg wrote again to him on that day. He complained about the adequacy of Mr Green's response and asserted that Ms Carruthers was a mere spectator to the Pennsylvania proceedings. 57Mr Green emailed his response to Mr Goldberg almost immediately at 5.50am on 11 April 2003. Not surprisingly he described Mr Goldberg's recent communications as "unfair". His response included the following: "Third, you are wrong about the law, at least here in the United States. Because Mrs. Marshall has brought the action on behalf of the Marshall estate, she has a fiduciary duty to distribute the settlement proceeds to those persons who are entitled to receive the money. Only the estate personal representative has standing to bring the lawsuit here in the U.S., so even if a third party is entitled to settlement proceeds they have no standing to sue. For example, if a widow is appointed and sues on behalf of her late husband's estate, she brings the action on her own behalf and on the behalf of everyone who is entitled to receive wrongful death damages. We have to come up with a plan that will not put the Marshalls at risk. Usually, the best course is to have the third party agree to the distribution, even if they do not receive anything. Is that possible? If not, a court of competent jurisdiction would have to rule on the distribution. That Court would have to be in Australia. If you are correct that Australian law would provide the full recovery to the Marshalls, it should be no problem getting a Court to order that distribution. I suggest that we get an agreement that the entire net settlement be paid to Mrs. Marshall as estate representative and that settlement will be held in an interest bearing account until you get court approval to distribute it only to the Marshalls. Pass this e-mail on to Mrs. Marshall and Kim Marshall. Please contact my office so that we can set up a telephone conference with the Marshalls at their first convenience so that we can deal with this problem." (emphasis added) 58Mr Goldberg sent a letter to Mr Green on the same day. He referred to the "frustration and anger" that he and his clients apparently felt. He rejected Mr Green's proposals in strident language and rejected any suggestion that Mrs Marshall and Kim Marshall were at risk. He told Mr Green to carry out his clients' instructions and that if they did not receive an "unequivocal acknowledgement" of them the Marshalls would terminate Kreindlers' retainer. 59On 13 April 2003 Mr Greenwell sent an email to Mr Green. He attached a copy of the letter from Mr Goldberg dated 22 March 2002. This email is a critical part of one of the central allegations against Mr Prescott and it is necessary to set it out in full: "Further to our telephone conversation on Friday night (local time) I indicated to you that Prescott had today sent me a letter from Turner Freeman dated 22nd March 2002, which I pass on to you for your attention. It's clear from that letter that Goldberg returned the signed Kreindler and Kreindler retainer agreement, executed by Margaret Marshall, on behalf of Kim Marshall and Linda Carruthers. At least at that stage, it would appear, that both Mr Goldberg and his client were aware that Margaret Marshall was the nominee for the estate of Mr Marshall and that apart from any interest that she may or may not have they recognise that there are at least 2 other persons, Kim Marshall and Linda Carruthers, who also have an interest. She is a fiduciary with respect to those interests." 60On 15 April 2003 a four page letter was sent by Kreindlers to Mr Goldberg. It was signed by Mr Francis G. Fleming. Mr Fleming advised that he was "the oldest and most experienced lawyer" at the firm who had worked on the case. Mr Fleming passed over what he described as the "offensive remarks" in Mr Goldberg's letter and simply noted that the "tone and character" of Mr Goldberg's letter were not helpful. He then addressed the respective positions of Mr Goldberg's clients and Ms Carruthers in respect of the proceeds of the settlement. His conclusion was that "[u]nder Pennsylvanian law, since Ms Carruthers has been recognized by an Australian Court as the de facto spouse, she would have a claim to the wrongful death recovery [component of the claim] assuming that Australian law treats de facto spouses as de jure spouses in these types of actions". He suggested that the best means of resolving the matter was by agreement or suggested that a third party custodian might be utilised. He also offered to obtain a further opinion from Mr Cliff Rieders who was the local counsel engaged in Pennsylvania. Consistent with the position taken by Mr Green the previous year, Mr Fleming described Kreindlers' role in the following terms: "Our professional responsibilities are to maximize the recovery from Lycoming, but once that is done we can take no part in a dispute on allocation." 61Mr Green followed up this letter with an email. In his email he denied having any communications with "counsel for Ms Carruthers", which was presumably a reference to Mr Prescott, "regarding the settlement". It was contended that this statement was false given the e-mail of 13 April 2003 (see [59]). It is not necessary for me to determine that question. Mr Green said that he had "only stated that all those legally entitled to the settlement proceeds must agree to the distribution". 62Mr Goldberg wrote to Mr Fleming on 24 April 2003 rejecting his advice but indicating that he would take up the matter with Mr Rieders. On the same day he sent a five page letter posing 24 questions for Mr Rieders. 63On 25 April 2003 Mr Green sent Mr Greenwell an email which was copied to Mr Bowman. There is no evidence that it was sent to Mr Prescott although it was submitted that Mr Greenwell was Mr Prescott's "agent" for that purpose. As the email was alleged to have conspiratorial overtones it is appropriate to set it out in full: "Please keep this confidential: I have been contacted by a lawyer here in the U.S. that was contacted by the solicitor for Carruthers. Luckily he works for a firm that knows our reputation and gave me the courtesy of calling before doing anything else. Apparently Carruthers wanted to know what could be done in the U.S. to prevent all of the Marshall settlement being paid to Mrs. Marshall and Kim. I told him that I wasn't able to speak with him in substance, but that filing anything would be untimely since Marshall has not signed the release yet. By separate e-mail I am going to send you the draft releases. I will be working on finalizing the releases and sending them down to you to have executed. It is very important that Marshall executes the release." 64On the same day Mr Green sent Mr Goldberg a draft release for execution in relation to the settlement. 65On 28 April 2003 Mr Bowman prepared a letter for sending to Mr Goldberg which he ultimately did not send. Like Kreindlers, Mr Bowman was proposing to point out that he, and inferentially IMF, had no interest in who was entitled to so much of the proceeds of the settlement as concerned Mr Marshall. His letter was annotated with the following: "Not sent. Justin Green is to address Turner Freeman's concerns. Justin says - under Pennsylvanian law - dependent (ie Kim) would get pain and suffering award [and] wife would get balance - Mrs Marshall would get it ([because Mr Marshall] is still married to her) but Justin says [Australian] law as to who is the wife would apply - would be that Ms Carruthers [because] she is the defacto would be treated as the wife." 66The plaintiffs' written submissions in reply dated 19 August 2013 (at [5]) assert that this file note is evidence "that Mr Green never believed, on the available evidence, that Carruthers had any entitlement whatsoever under Pennsylvania law", and that he "well knew her to be persona non grata under Pennsylvania law". I do not agree. Instead it recorded Mr Green's opinion that the interaction of so much of Australian law that might recognise as Mr Marshall's de facto spouse with Pennsylvanian law might lead to Ms Carruthers having an entitlement in respect of the settlement funds. 67On 16 May 2003 Mr Rieders wrote to Mr Goldberg in response to the letter of 24 May 2013 which Mr Rieders had received on 30 April 2013. Amongst other matters he explained that in Pennsylvania the right to sue for the benefit of the estate is held by the personal representative of the estate "for the benefit of the spouse, children or parties" and that the "[p]roceeds are distributed according to the rules of intestacy, regardless of the existence of a will". However it was clear that Mr Rieders regarded the rights to the proceeds as being governed by Australian law which he stated he would not comment upon. He also pointed out that the fact that Ms Carruthers was not named as a party to the proceedings "in her own name [was] not determinative" in that a "potential beneficiary of wrongful death proceeds does not need to be a party in her own name in order to have the right to participate in the recovery". 68Also on 16 May 2003 a solicitor acting on behalf of Ms Carruthers from Teece, Hodgson & Ward, Mr Neal, emailed Mr Green. He attached the letter of 22 March 2002 and stated that "reflect[ed] the representative nature of [Kreindlers'] retainer". He asked Mr Green to hold the proceeds in escrow. Mr Green immediately sent Mr Neal's e-mail to Mr Goldberg under cover of an e-mail stating: "I just received the following email. Please provide your input on how I should respond to the email and explain your letter which Mr Neal attached to the email." 69On the morning of 22 May 2003 Sydney time, Mr Goldberg had a telephone conference with Messrs Green and Fleming at the chambers of Mr C.J. Bevan of Counsel. Messrs Green and Fleming told him that the funds would not be released unless Mr Goldberg gave an undertaking on behalf of the Marshalls to seek a ruling from the "Australian Court supervising the Estate" as to the entitlements of Mrs Marshall and Ms Carruthers. 70On 23 May 2003 Mr Goldberg wrote to Mr Prescott complaining that he had improperly provided Mr Neal with the letter of 22 March 2002. He asserted that his conduct involved a "breach of client/legal professional privilege". He was asked to advise within seven days why Mrs Marshall should not be entitled to various forms of relief against him. Although the letter did not expressly say so, it was common ground between the parties that this letter terminated Mr Prescott's retainer. The release of the funds and the commencement of the Marshall proceedings 71Thereafter Mr Goldberg and Mr Green corresponded in relation to the release sought by Lycoming as a condition of the settlement. One issue that arose concerned a clause of the release pursuant to which Mr Goldberg agreed to indemnify Lycoming in respect of claims made by third parties, including workers' compensation insurers. In Mr Marshall's case there was a potential for such a claim in that, as noted, the GIO had paid out $200,000.00 to Ms Carruthers (see [19] above). 72Eventually on 13 June 2003 Mrs Marshall signed a Deed of Release. On 25 June 2003 Mr Goldberg wrote to Kreindlers providing three undertakings required by Kreindlers before the proceeds of the settlement were released, namely undertakings not to release the funds without an order of this Court (other than to pay IMF's fees), to receive the funds on behalf of the estate of the late Mr Marshall and to serve all Court processes on Ms Carruthers by way of personal service. 73Over the next few weeks the funds were received by Turner Freeman with various fees paid to IMF. In the end result an amount of AUD$420,115.57 was retained. 74On 17 July 2003 Mr Prescott wrote to Mr Goldberg requesting, inter alia, that he retain the funds pending determination or agreement as to the respective entitlements and confirmation that Mr Goldberg's clients would make application to this Court. Mr Goldberg responded the next day disputing various matters, but confirming those two. 75By October 2003 proceedings had not been commenced. On 24 October 2003 Mr Prescott wrote to Mr Goldberg querying, inter alia, whether litigation had been or would be commenced and sought to have the settlement proceeds placed in an interest bearing joint account rather than a non-interest bearing account. 76Mr Goldberg responded on 4 November 2003. One matter he raised was the inappropriateness of Mr Prescott continuing to act when his firm had previously acted as "the former estate solicitors in the US proceedings". 77By this time the GIO had learned of the possibility of recovery. It wrote letters to each of Mr Prescott and Mr Goldberg asserting its right to be repaid out of the proceedings of the settlement of the Pennsylvania proceedings. Mr Goldberg emphatically rejected the suggestion. However in a letter dated 25 November 2003 Mr Prescott stated that there was a comity of interest between his client and the GIO. He suggested that the GIO fund and indemnify his client. 78On 30 April 2004 Mrs Marshall commenced the Marshall proceedings by filing a statement of claim in the Equity Division of this Court. Ms Carruthers was named as a defendant. Mrs Marshall sought declaratory relief to the effect that she was entitled to the entire net proceeds of settlement of the Pennsylvania proceedings retained by Turner Freeman. 79Mr Prescott continued to press the GIO for funding. On 30 July 2004 he advised the GIO's solicitors that, having regard to her previous experience, his client would not under any "circumstances run any action to challenge [Mrs Marshall's] summons on her own account". On 4 August 2004 the GIO solicitors advised Mr Prescott that they would agree to fund his appearance at the first return date of the proceedings. There was a great deal of correspondence between Mr Prescott and the GIO's solicitors from this point through to 2005. It suffices to state that from late 2004 to June 2005 the GIO funded Mr Prescott to act for Ms Carruthers on an interim basis (defined in the FASOC as the "GIO interim litigation funding agreement"). 80On 15 October 2004 a defence and a cross claim were filed on behalf of Ms Carruthers. Prescotts were the solicitors on the record. Teece Hodgson & Ward were retained as their agents. The cross claim sought a declaration to the effect that Ms Carruthers was entitled to the entirety of the amount retained by Turner Freeman. 81From this point into 2005 Mr Prescott continued to correspond with the GIO's solicitors in an effort to finalise a funding agreement. On or around 9 June 2005 Ms Carruthers and the GIO entered into an agreement pursuant to which the latter agreed to fund the former's costs and disbursements in relation to the Marshall proceedings, and indemnify her against any adverse costs order or agreement to pay Mrs Marshall's costs (the "GIO Final Litigation Funding Agreement"). Paragraph F of the recitals to the agreement records that Ms Carruthers did not wish to defend the proceedings or pursue her cross claim without funding from the GIO. 82In the meantime, on 8 June 2005 Mr Prescott wrote to Mr Rieders seeking his opinion on various questions of law said to be relevant to Ms Carruthers' defence of the Marshall proceedings. On 13 June 2005 Mr Rieders provided a short response. He suggested that they hire an expert in Pennsylvania law and noted that he could not give any legal advice in "connection with the Whyalla Airlines Crash". 83On 10 June 2005 Teece Hodgson & Ward wrote to Mr Prescott on behalf of Ms Carruthers terminating his retainer. The letter suggested that this had occurred because he was perceived to be "a material witness". Mr Prescott was asked to provide the materials in his possession including the contact details for Mr Rieders. 84Mr Prescott responded on 21 June 2005. In his letter he stated that, based on his discussions with the GIO's solicitors, "a continued role [was] intended" for him notwithstanding the termination of his retainer. To that end he continued to correspond with Mr Rieders in an endeavour to obtain a suitable expert in Pennsylvanian law. He discussed the provision of answers to particulars from solicitors from Teece Hodgson & Ward and corresponded with the GIO's solicitors in relation to the progress of the proceedings. 85On 21 October 2005 an attorney practising in Williamsport, Pennsylvania, Cynthia Person, provided an opinion to the effect that the finding in the FPA proceedings that Ms Carruthers was the de facto spouse of Mr Marshall meant that, under the law of Pennsylvania, Ms Carruthers was entitled to half of the net proceeds of the settlement. 86There was other correspondence in the period after 8 June 2005 which was said by Mrs Marshall and Kim Marshall to constitute a breach of confidence by Mr Prescott. I address this below. The Prescott Proceedings 87On 31 October 2005 a notice of motion was filed on behalf of Ms Carruthers in the Marshall proceedings which sought an extension of time to comply with earlier orders of the Court. In support of the motion a solicitor from Teece Hodgson & Ward filed an affidavit. It seems that the affidavit revealed the ongoing assistance being provided to Ms Carruthers by Mr Greenwell and Mr Prescott. On 4 November 2005 Turner Freeman wrote to each of them referring to the previous retainer from Mrs Marshall and demanding they each provide a detailed undertaking to the Court to, inter alia, not act against her interest or assist others to do so. They threatened to take proceedings if their demand was not complied with. 88Mr Prescott responded in a letter dated 8 November 2005. He denied that he ever acted for Mrs Marshall and stated that his "role was no more than that of the co-ordinator of the various plaintiff solicitors acting for the various families in the crash". He addressed other matters raised by Mr Goldberg and refused to provide any undertaking. 89On 9 November 2005 Mrs Marshall commenced the Prescott proceedings by filing a summons in the Equity Division of this Court. She named each of Mr Prescott and Mr Greenwell as defendants. The summons sought final and interlocutory injunctions restraining them from, inter alia, acting against the interests of Mrs Marshall, including by way of providing assistance to Ms Carruthers or her solicitors in the Marshall proceedings. 90The application for interlocutory orders was returnable on 16 November 2005. On that day Mr Greenwell proffered various undertakings to the Court. The proceedings against him were dismissed by consent. In the case of Mr Prescott, Barrett J made interlocutory orders by consent to the effect of that sought in the summons (the "Interlocutory Orders"). Mrs Marshall proffered the usual undertaking as to damages. 91As by then it had become apparent that, at its highest, Ms Carruthers could only claim half of the net proceeds of the settlement, Turner Freeman gave notice that it proposed to distribute half of the amount that it was holding. On 8 March 2006 Windeyer J dismissed an application by Ms Carruthers to restrain that from occurring. Mrs Marshall's evidence was that the monies were released and applied for the payment of legal costs. 92Mrs Marshall then moved to strike out Ms Carruthers' defence and cross claim. On 8 August 2006 Macready AsJ struck out certain parts of those pleadings and gave her liberty to replead. However his Honour did not enter judgment against her, finding that there was a "real controversy which should go to trial". 93In December 2006 Tuner Freeman obtained a rival opinion from an attorney in Pennsylvania, Lynn Evans. Ms Evans addressed a number of questions including who was entitled to share in the proceeds of the settlement monies. Ms Evans concluded that Ms Carruthers was not so entitled. Ms Evans was also asked whether "Linda Hope Carruthers [was] named or referred to, directly or indirectly in the [complaint] as a party to or a beneficiary of the Pennsylvania proceedings?" Ms Evans noted those parts of the complaint that I have extracted above which refer to "surviving family members" and "next of kin" and continued: "In Pennsylvania, there is no statutory definition of 'family members'. However, the Probate, Estates and Fiduciaries Code does provide a rule of interpretation for wills which construes such terms as 'family', 'heirs' and 'next of kin.' 20 Pa.C.S.A. 2514(4) 2514. Rules of Interpretation In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in accordance with the following rules: (4) Meaning of 'heirs' and 'next of kin', etc.; time of ascertaining class, - A devise or bequest of real or personal estate whether directly or in trust, to the testator's or another designated person's 'heirs' or 'next of kin' or 'relatives' or 'family' or to 'the persons thereunto entitled under the intestate laws' or to persons described by words of similar import, shall mean those persons, including the spouse, who would take under the intestate laws if the testator or other designated person were to die intestate at the time when such class is to be ascertained ... Under the foregoing rule of interpretation, the 'family members,' 'heirs' and 'next of kin' of Neil Marshall are his surviving spouse and his child. As discussed hereinabove at Paragraph 111(A)(1), under Pennsylvania law, Mr. Marshall's spouse was Margaret Lesley Marshall, and his sole child was Kim Neil Marshall. There is no provision for any person equivalent to a de facto spouse in this rule of interpretation. Therefore, Ms. Carruthers is not named or referred to as a party to or beneficiary of the Pennsylvania proceedings." The resolution of the Prescott Proceedings and the Marshall Proceedings 94On 28 February 2007 final orders were made by Macready AsJ by consent in the Prescott proceedings (the "Consent Orders"). The first order made was a declaration (the "Consent Declaration") which provided: "1. The first defendant was retained to act as a solicitor for the plaintiff, Kim Neil Marshall and the estate of the late Neil Marshall, on or about 29 May 2001 until about May 2003 in the following matters or proceedings, and to act for them in the various capacities referred to below (hereafter which are referred to collectively as 'the first defendant's retainer'), and in the case of sub-paragraph (e) below, he was retained to so act in addition to the firms of Turner Freeman, Lawyers, of Sydney, Kreindler & Kreindler, Attorneys, of New York and Rieders Travis Humphrey Harris Waters & Waffenschmidt, Attorneys, of Williamsport, Pennsylvania, namely: (a) for the plaintiff in her own right or as executrix of the estate of the late Neil Marshall or in respect of her son, Kim Neil Marshall; (b) for the plaintiff on behalf of her son, Kim Neil Marshall, in respect of which she acted as his agent to retain and instruct the first defendant; (c) for Kim Neil Marshall thereafter on his own behalf; (d) in the investigation of the plaintiff's legal rights in Australia and the United States of America (whether) arising out of the Whyalla Airline Plane crash on 31 May 2000 ('the Whyalla Airlines plane crash investigation'); (e) in relation to the conduct of proceedings Complaint no. 4: CV02-918 filed on 29 May 2002 at Williamsport (Docket of Judge Muir) in the US District Court for the Middle District of Pennsylvania ('the Pennsylvania Proceedings'); (f) in relation to the conduct of an inquest into the death of the late Neil Marshall in the Coroner's Court of Adelaide ('the Coroner's Court proceedings'); (g) in relation to the conduct of proceedings in the District Court of South Australia pursuant to the Civil Aviation (Carriers Liability) Act, 1959 (Cth) and the Civil Aviation (Carriers Liability) Act, 1962 (SA) ('the South Australian proceedings'), (all of which are hereafter collectively referred to as 'the former proceedings')." (emphasis in original) 95Orders 2(a), (b) and (c) of the Consent Orders permanently restrained Mr Prescott from accepting a retainer to act against Mrs Marshall, accepting a retainer to assist or otherwise assisting Ms Carruthers and "waiving or otherwise communicating ... the terms of any confidential communication which he has had with [Mrs Marshall]" in respect of his retainer respectively. Order 2(d) restrained him permanently from "otherwise breaching any obligation of confidence which he owes to [Mrs Marshall] in respect of [his] retainer, the [Pennsylvania proceedings] or the [Prescott proceedings]". Order 3 restrained him from communicating with various entities such as Teece Hodgson & Ward or Kreindlers about his retainer, the Pennsylvania proceedings or the Prescott proceedings. Order 4 required him to deliver up various documents. 96Order 8 of the Consent Orders required Mr Prescott to pay Mrs Marshall's costs "of and incidental to this proceeding, insofar as they related to claims for relief made against [Mr Prescott] (whether wholly or partly), up to and including the date of [the] orders, as agreed or assessed". An annotation to the orders recorded an agreement between the parties that Mrs Marshall would not make any application for any further order as to costs of the proceedings against Mr Prescott, adding that such further costs were "incurred of an incidental to the determination of the issues remaining for determination as between the plaintiff and the intervenor which are referred to in order 7 above". This appears to relate to the costs being incurred in a privilege dispute between Mrs Marshall and Ms Carruthers which had spilled over into the Prescott proceedings. This annotation recorded an agreement by Mrs Marshall to not seek any further costs from Mr Prescott incurred after the orders in relation to her ongoing dispute with Ms Carruthers. It is not necessary to consider this further. Although it was contended on behalf of Mr Prescott that Order 8 precluded recovery of part of the damages sought by Mrs Marshall, it was not contended that the annotation to that order had that effect. The amount of party/party costs that Mr Prescott was ordered to pay in the Prescott proceedings was $114,156.15. 97On 23 July 2008 the Marshall proceedings were resolved by the entry of final orders also by consent. As noted, half of the amount retained by Turner Freeman had previously been distributed. These orders included a declaration to the effect that Mrs Marshall was entitled to the remainder and Ms Carruthers was not. They also included orders requiring Ms Carruthers to pay Mrs Marshall's costs of the proceedings on a party/party basis. The enforcement of that order was expressed to be discharged if the amount of $150,000.00 was paid on behalf of Ms Carruthers. The solicitor/client costs incurred by Mrs Marshall 98Mrs Marshall retained a very experienced solicitor and costs assessor, Gordon Salier, to report on the "amount of costs recoverable on a solicitor/ client basis in respect of the work done" for each of the Prescott proceedings and the Marshall proceedings. Mr Salier worked from a comprehensive bill prepared in each matter by a costs consultant, Chris Davitt. In the Prescott proceedings Mr Salier assessed them at $239,775.72. As noted they were assessed on a party/party basis as $114,156.14 and that amount was paid on behalf of Mr Prescott. The difference is $125,619.58. 99In the Marshall proceedings Mr Salier assessed the costs payable on a solicitor/client basis in the amount of $334,565.88. As noted an amount of $150,000.00 was paid on account of her costs on behalf of Ms Carruthers. The difference is $184,565.88. 100In his report Mr Salier identified a difficulty in assessing the costs in that he did not have any objections from Mr Prescott, although he stated he had regard to the objections lodged on behalf of Mr Prescott during the assessment of the costs on a party/party basis. He did not have any such objections with the Marshall proceedings. In cross examination Mr Salier accepted that this was an "inherently awkward task" but he nevertheless attempted to adopt a "devil's advocate" role. Even allowing for this limitation I accept Mr Salier's assessments as representing a fair and reasonable assessment of the costs incurred by Mrs Marsall in both sets of proceedings. Kreindlers retainer and the complaint 101At this point it is appropriate to note two matters that were the subject of various submissions which I do not consider are necessary to resolve. 102First, the parties devoted a considerable amount of energy to establishing whether or not Ms Carruthers had a retainer with Kreindlers. As best as I can ascertain the perceived significance of that circumstance was that it was thought to be relevant to the analysis of whether or not Kreindlers' insistence upon Mr Goldberg providing undertakings as a condition of his receiving the proceeds of the net settlement was a consequence of any conduct on the part of Mr Prescott. Some of the submissions appeared to treat this issue as having significance to the scope of Mr Prescott's retainer and any fiduciary duty he owed to Mrs Marshall (and Kim Marshall), as well as relevant to the respective entitlements to the confidential information in the possession of Mr Prescott. 103I will address these latter issues but I do not accept that it is necessary for me to determine whether Ms Carruthers had a retainer with Kreindlers. Kreindlers' retainer was governed by the law of New York (Fleming v Marshall [2011] NSWCA 86; 279 ALR 737 at [81] per Macfarlan JA, Spigelman CJ and Sackville AJA agreeing). Both the ILF funding agreement executed by Ms Carruthers and Mr Goldberg's letter of 22 March 2002 appear to provide some support for the contention that Ms Carruthers retained Kreindlers, although it is not clear whether and, if so, when those documents were provided to Kreindlers. Even if Ms Carruthers did not directly retain Kreindlers, then it may be that under the laws and customs regulating its conduct Kreindlers either owed her some form of duty or perhaps only a duty to Mrs Marshall not to allow her to be placed at risk of breaching any fiduciary duty she might owe to someone such as Ms Carruthers, notwithstanding Mr Goldberg's offensive letters demanding that it forward the money unconditionally. 104For present purposes it is only necessary for the Court to address what Kreindlers appears to have regarded as its obligations which I do below at [209]ff. Otherwise I have already addressed at [31] the significance of the letter of 22 March 2002 which passed between Mr Goldberg and Mr Prescott. It is further considered below (at [118]). What is critical to determining this case is what were the arrangements between Mrs Marshall and Mr Goldberg on the one hand and Mr Prescott and Ms Carruthers on the other. Ultimately it was Mr Prescott's retainer and duty that were at issue in this proceedings, not Kreindlers'. 105A second and related issue was whether the complaint filed in the Pennsylvania proceedings meant that the proceedings were filed on behalf of Ms Carruthers. In cross examination Mr Goldberg was asked and answered as follows: "Q. You understood that the effect of the words in your letter of 22 March 2002 where you said, 'This agreement is signed on behalf of Kim Marshall and Linda Carruthers', was that a retainer ... being effected with Kreindler and Kreindler by Margaret Marshall on behalf of Linda Carruthers, correct? A. Yes, I think so." 106However Mr Goldberg said that he came to the belief that this view was wrong because "[i]t became apparent after the complaint was filed that I may well have been wrong and I spent quite a bit of time after that sorting that out". This appears to be a reference to the terms of complaint subsequently filed in Pennsylvania. As best as I can ascertain Mr Goldberg asserted that he construed the complaint as not embracing Ms Carruthers as a potential claimant. It was suggested to Mr Goldberg in cross examination that this was a contrivance that he made up a number of years later. I do not consider it necessary to determine whether he did genuinely form this opinion during the period 2002 to 2003, although I note that at no point prior to his letter of 8 April 2003 did he take up this particular aspect of his concerns about the complaint with Mr Green or explain to anyone that he provided his letter of 22 March 2002 because he had in some way been misled. 107As the emphasised portions from the court process filed in the Pennsylvanian proceedings make clear (see [33]), on its face the pleaded claim was certainly capable of including Ms Carruthers. Prima facie she falls with the descriptions "surviving family member", "the decedent's survivors" and "next of kin". The subsequent advice obtained from Ms Evans rejects this. I find that opinion unconvincing as it uses the interpretation rules appropriate for wills whereas the complaint is a pleading. In any event this is all irrelevant. The advices that Mr Green provided to Mr Goldberg during 2002 and 2003 make it clear that he considered it at least arguable that Ms Carruthers may have had some entitlement. The terms of the complaint did not appear and would not have appeared to him (or Mr Prescott) to be inconsistent with Ms Carruthers ultimately recovering. Mr Green, however, made it clear that he would not enter the fray on that issue, but instead only saw his firm's role as being to maximise the amount recovered. The fiduciary duty owed by Mr Prescott to the plaintiffs 108Before addressing the pleaded case, it is necessary to address three related topics, namely: (i) the duration and scope of any fiduciary duty owed by Mr Prescott to Mrs Marshall and Kim Marshall; (ii) the effect of any estoppels created by the Consent Orders; and (iii) the allegation that Mr Prescott breached an obligation of confidence after the termination of his retainer. 109What was the duration of any fiduciary duty owed by Mr Prescott to Mrs Marshall and Kim Marshall? The Consent Declaration records that the period of Mr Prescott's retainer to act on behalf of Mrs Marshall was from "on or about 29 May 2001 until about 23 May 2003". As noted it was common ground that it was terminated by Mr Goldberg's letter to Mr Prescott of 23 May 2003. The authorities binding on this Court at first instance are clear in holding that the "fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer" (Prince Jefri Bolkiah v KPMG (a Firm) [1999] 2 WLR 215 at 225 per Lord Millet; Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; 48 NSWLR 1 at [205]). Further, any contractual duty of loyalty also comes to an end at that point (Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 at [76]). Ultimately in the plaintiffs' final written submissions in reply dated 9 October 2013 (at [47]) Counsel for the Marshalls, Mr Bevan, conceded that this was the effect of the authorities, although he sought to preserve his clients' position by formally submitting that they were wrongly decided in this respect. 110This conclusion has a significant impact on Mrs Marshall's case. I address the specific allegations made in the FASOC against Mr Prescott below. As will become clear, a significant number of them are predicated on the existence of an ongoing duty of loyalty by Mr Prescott in the period after the termination of his retainer. As a consequence they must be rejected. 111However the authorities also recognise that "after termination or conclusion of a retainer, [a solicitor] has an ongoing duty to preserve the confidentiality of confidential information disclosed by a former client" (Cooper v Winter [2013] NSWCA 261 at [97]; Kallinicos at [76]). Ultimately Mr Bevan's submissions concerning Mr Prescott's conduct after 23 May 2003 were principally directed to establishing that he breached this obligation. I address the suggested misuse of confidential information by Mr Prescott below. 112What was the scope of the fiduciary duty owed by Mr Prescott to Mrs Marshall and Kim Marshall during the period of his retainer? In the defendant's submissions dated 15 August 2013, counsel for Mr Prescott, Mr J.C. Kelly SC, identified the following passage from Beach Petroleum as having particular significance: "[188] Even in the case of a solicitor client relationship, long accepted as a status based fiduciary relationship, the duty is not derived from the status. As in all such cases, the duty is derived from what the solicitor undertakes, or is deemed to have undertaken, to do in the particular circumstances. Not every aspect of a solicitor client relationship is fiduciary. Conduct which may fall within the fiduciary component of the relationship of solicitor and client in one case, may not fall within the fiduciary component in another. [189] The relationship of solicitor and client has at its core an element of confidence and influence which equity will preserve and protect. Nevertheless, the confidence and influence are not always so pervasive as to require equitable intervention in every facet of the relationship. [190] The primary thrust of Beach's submissions was to challenge the conclusions of Rolfe J that there was no relevant retainer and hence no conflict between the duty ATRK owed to Beach and the duty they owed to other companies in the group which retained them in all or any of the relevant transactions. In so far as this Court accepts that any retainer was broader than that found by his Honour, it will be necessary for this Court to identify the scope of the retainer in order to determine the scope of the fiduciary duty. ... [194] The existence and scope of the duty may derive from a course of dealing. In a passage frequently cited with approval from Birtchnell v The Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, a partnership dispute, Dixon J, as his Honour then was, said at 408: 'The subject matter over which the fiduciary obligations extend is determined by the character of the venture or undertaking for which partnership exists; and this is to be ascertained, not merely from the express agreement of the parties, whether embodied in written instruments or not, but also from the course of dealing actually pursued by the firm.'" (emphasis added) 113The above passages from Beach Petroleum warrant a consideration of the "course of dealing" in the period around the time of his retention between Mr Prescott and Mrs Marshall and Mr Goldberg in acting on her behalf and on behalf of Kim Marshall to determine the scope of the fiduciary duty. Mr Bevan pointed to the terms of the Consent Declaration as exhaustively defining the scope of Mr Prescott's retainer and any fiduciary duty he owed. While I accept that it is necessary to consider the Consent Declaration closely and not proceed inconsistently with it, as I will explain, it does not purport to exhaustively describe Mr Prescott's retainer, and it is not determinative of the scope and content of any fiduciary duty he owed. 114The first three sub-paragraphs of the Consent Declaration record "for" whom Mr Prescott acted, namely Mrs Marshall in her own right, or as executrix of the estate, Mrs Marshall on behalf of her son and Kim Marshall. Subparagraphs (d) to (g) then specify the matters in respect of which Mr Prescott was retained, namely "in the investigation of" Mrs Marshall's and Kim Marshall's legal rights arising out of the "Whyalla Airlines plane crash investigation", and "in relation to the conduct" of "the Pennsylvania proceedings", the "Coroner's Court proceedings" and the "South Australian proceedings". 115Nowhere in the Consent Declaration is it stated that Mrs Marshall and Kim Marshall were the only persons who retained Mr Prescott in relation to the subject matters listed in subparagraphs (d) to (g). Thus a consideration of the circumstance known to all that Mr Prescott was also retained by Ms Carruthers in relation to at least the subject matter listed in subparagraph (e) is not precluded by the terms of the Consent Declaration. 116In the plaintiffs' written submissions dated 15 August 2013 Mr Bevan contended that the Consent Declaration records that Mr Prescott was retained to, inter alia, "conduct" the Pennsylvania proceedings (at [65]). This misstates the declaration. As noted it only refers to him being retained "in relation to the conduct" of the Pennsylvania proceedings. In fact the declaration does not purport to specify precisely what Mr Prescott "under[took] or is deemed to have undertaken" (Beach Petroleum at [188]) when retained "in relation to the conduct of" the proceedings nominated in subparagraphs (e) to (g). Nor does it purport to state exhaustively what the "course of dealing" between Mr Prescott and his "clients" was in relation to those matters (Beach Petroleum at [194]). 117The defendant's written submissions dated 15 August 2013 pointed to a number of circumstances as bearing upon what Mr Prescott undertook and the relevant "course of dealings" (Beach Petroleum at [194]). These were said to be significant to any assessment of the scope of the fiduciary duty owed by Mr Prescott. 118The first has already been noted, namely that it was known by all that Mr Prescott was retained by Ms Carruthers. Mr Prescott announced that he acted for Ms Carruthers at the outset in his first telephone call with Mrs Marshall (see [15]). It was restated in his letter of 31 May 2001 (see [17]) and Mr Goldberg was clearly aware of that at the time he wrote his letter of 22 March 2002 to Mr Prescott (see [29]). Ms Carruthers was the "client" of Mr Prescott that Mr Goldberg was referring to in his email of 29 July 2002 (see [38]). Neither Mr Goldberg nor Mrs Marshall were ever advised that Mr Prescott had ceased to act for Ms Carruthers. Further, in stating that he was acting for Ms Carruthers, Mr Prescott clearly identified her as a person who wished to assert a claim or at least a potential claim for compensation in respect of Mr Marshall's death. Any doubt about this was dispelled by his letter of 31 May 2001. 119Second, it was known that there was a history of litigious disputation between Ms Carruthers and Mrs Marshall. Mr Goldberg referred to this in his email to Mr Green of 25 July 2002 (see [36]). 120Third, Mr Prescott's role vis-à-vis Mrs Marshall and Kim Marshall "in relation to the conduct" of the various proceedings was restricted to a co-ordination and reporting role, bearing in mind that Mr Goldberg acted for them directly. Thus for example in his letter of 14 June 2001 Mr Goldberg referred to Mr Prescott as the "overall representative" (see [18]). Mr Prescott's letters to the various legal representatives noted at [17] were consistent with that. Mr Goldberg never sought Mr Prescott's advice on any matter specific to his clients' position in the same way that he directed requests to Mr Green at Kreindlers. 121Fourth, there were specific constraints placed on Mr Prescott's "retainer" for Mrs Marshall and Kim Marshall. In particular he was excluded from receiving personal information of theirs that might be relevant to any future disputation between Ms Carruthers and them. This was the clear import of the agreement between Mr Goldberg and Mr Prescott about the means by which Mr Goldberg would communicate directly with Kreindlers, as referred to in Mr Goldberg's emails of 25 July 2002 and 29 July 2002 ([36] and [39]). 122As at 2001 to 2002 it was understood by all that Mr Prescott acted for Ms Carruthers and Mr Goldberg acted for Mrs Marshall and her son. From the outset both Mr Prescott and Mr Goldberg were aware or should have been that, failing agreement, there was a strong likelihood that there would be disputation between their respective clients about the distribution of any proceeds of any judgment or settlement that might be obtained in the Pennsylvania proceedings. However in the meantime there needed to be co-operation to pursue those proceedings to maximise the prospects of obtaining a recovery. Mr Prescott accepted a limited a retainer on behalf of Mrs Marshall and Kim Marshall to pursue the proceedings while still being retained by Ms Carruthers. 123To that end Mr Prescott was retained by Mrs Marshall and Kim Marshall in the period from May 2001 to May 2003 "in relation to the conduct" of the four proceedings noted in subparagraphs (d) to (g) of the Consent Declaration. However the retainer had significant qualifications bearing in mind that it was accepted and known to all that Mr Prescott was also retained by another person who would or at least might make a competing claim to theirs, namely Ms Carruthers. Thus his role "in relation to the conduct" of those matters was restricted to a co-ordinating and reporting role and limitations were placed on the information that was imparted to him. 124I accept that Mr Prescott owed a fiduciary duty to Mrs Marshall and Kim Marshall prior to the termination of his retainer but the scope of that duty was informed by the limited role that he assumed on their behalf. In this limited role there was trust and confidence reposed in him. Further this duty was qualified by the known circumstance that Mr Prescott acted for Ms Carruthers, who was, at the very least, a potentially competing claimant (see Kelly v Cooper [1993] AC 205). In light of how the allegations of breach of fiduciary duty prior to the termination of Mr Prescott's retainer were pleaded it is not necessary to determine whether his duty precluded him from taking steps to preserve Ms Carruthers' position at a point where a conflict emerged between her and the Marshalls over their respective entitlement to share in the net proceeds of any settlement or judgment. 125A number of matters were submitted by Mr Bevan which were said to address both the scope of any fiduciary duty owed by Mr Prescott to the Marshalls and the allegations of breach of this duty. I address the pleaded allegations of breach below. However at this point I will address those aspects of these submissions which also appear to bear upon the scope of the duty. 126First, in the plaintiffs' written submissions dated 15 August 2013 and under the heading "[n]ature of Mr Prescott's fiduciary duties", Mr Bevan contended (at [49]), inter alia, that: "When the retainer of Mr Prescott began in 2002 he believed that that [sic] the plaintiffs and Carruthers alike would be entitled to share any damages recovered in the US (although, at that stage, Pennsylvania had not yet been chosen as the appropriate forum in the US). He so advised Mr Goldberg and Mrs Marshall relied on that advice in believing that she was suing for the joint benefit of herself, Kim Marshall and Carruthers." (emphasis added) 127The footnotes to the first passage do not provide any evidentiary reference that is capable of supporting the contention that Mr Prescott "so advised" Mr Goldberg. Otherwise the significance of this submission to ascertaining the scope of the fiduciary duty owed by Mr Prescott is not made clear in the balance of the submissions. However it replicates a theme of Mr Bevan's submissions that the conduct of Mr Prescott somehow falsely induced Mr Goldberg to respond as he did in his letter of 22 March 2002. In a similar vein, in one of his affidavits Mr Goldberg stated he replied in the terms he did in his letter of 22 March 2002 because he believed at that time that Mr Prescott had "obtained reliable advice from [Kreindlers] about the status of [Mrs Marshall] as the claimant (plaintiff) in the Pennsylvania proceedings as representativ[e] of other persons". He added that his "discovery of the true position ... occurred long after I had placed this implicit reliance on [Mr Prescott]". I admitted this evidence but restricted its use under s 136 of the Evidence Act 1995 to only proving Mr Goldberg's state of mind. In the end result, there was nothing in the materials that was capable of supporting Mr Goldberg's assertion that Mr Prescott expressly or implicitly suggested he had such advice. 128Second, the plaintiffs' written submissions dated 15 August 2013 contended that the exchange of emails that occurred about the retainer on 20 and 22 March 2002 merely represented an exchange over a procedural matter (at [61]). Mr Bevan submitted it was not capable of supporting a conclusion that there was any "informed consent [on the part Mrs Marshall and Kim Marshall] to a conflict of interest" on the part of Mr Prescott in holding two retainers. Against this (at [52]) were the contentions asserting it was common ground that Ms Carruthers had no interest in Mr Marshall's estate under Australian law, and pointing to Mr Prescott's statement in his email of 20 March 2002 that the estate representative should sign "on behalf of all plaintiffs [claiming under a deceased] even if they did not have any entitlement under the will or the Act". These contentions are difficult to reconcile with the submission noted above and Mr Goldberg's evidence that Kreindlers' retainer was signed by Mrs Marshall based on some false belief induced by Mr Prescott that Ms Carruthers had a substantive claim. In any event both sets of contentions are irrelevant. 129In Beach Petroleum at [466] the Court of Appeal approved the following passage from the judgment of Millet LJ in Bristol & West Building Society v Mothew [1998] Ch 1 at 18 to 19: "A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to the other: see Clark Boyce v Mouat [1994] 1 AC 428 and the cases there cited. This is sometimes described as 'the double employment rule'. Breach of the rule automatically constitutes a breach of fiduciary duty. But this is not something of which the society can complain. It knew that the defendant was acting for the purchasers when it instructed him. Indeed, that was the very reason why it chose the defendant to act for it. The potential conflict was of the society's own making: see Finn, Fiduciary Obligations, p254 and Kelly v Cooper [1993] AC 205. It was submitted on behalf of the society that this is irrelevant because the defendant misled the society. It did not know of the arrangements which the purchasers had made with their bank, and so could not be said to be 'fully informed' for the purpose of absolving the defendant from the operation of the double employment rule. The submission is misconceived. The society knew all the facts relevant to its choice of solicitor. Its decision to forward the cheque for the mortgage advance to the defendant and to instruct him to proceed was based on false information, but its earlier decision to employ the defendant despite the potentially conflicting interest of his other clients was a fully informed decision." (emphasis added) 130Thus in Beach Petroleum the Court concluded (at [467]): "So too here. Beach, through its directors, knew that ATRK were acting for other companies within the group on the various transactions. Indeed, they had quite deliberately given instructions on behalf of those other companies to ATRK. If there was any conflict, it was of their own making and a decision which was made by them with knowledge of all the facts relevant to the choice of solicitor. It was a fully informed decision." 131From the outset Mrs Marshall and Mr Goldberg knew that Mr Prescott acted for Ms Carruthers. They knew that Ms Carruthers was claiming to be entitled to recover compensation in respect of the death of Mr Marshall via the Pennsylvania proceedings, and they knew that there was a significant potential or even likelihood that any claim she might make would be on the estate or would otherwise compete with their own interests. To protect against this they put in place the arrangements that Mr Goldberg referred to in his emails of 25 and 29 July 2002. Yet they had good reason to join with her in the interim to maximise the recovery of funds in respect of Mr Marshall's death. To paraphrase Millet LJ in Bristol & West Building Society, they knew all the facts relevant to their choice to retain Mr Prescott. 132Third, a related and more confusing contention made on behalf of the plaintiffs is that the contention that the fiduciary duty owed by Mr Prescott was qualified in the way that I have found "fails to address the doctrinal effect of the Marshalls' belated discovery in late March/early April 2003 that their interests and those of Carruthers never were coincident because Mr Goldberg realised that Carruthers probably had no 'potential' US rights at all" (plaintiffs' written submissions dated 15 August 2013 at [62]). 133The above analysis does not address this alleged "doctrinal effect" because there was none. The finding I have made addressed the position in the period 2001 to 2002 when Mr Prescott's retainer was formed. Mr Goldberg may have formed the conclusion that Ms Carruthers did not have a genuine claim in early 2003 but that is irrelevant. Until that point the parties had conducted the matter on the basis that she may have a claim but that issue would only be determined if and when it was known that there was something to claim upon in the form of a judgment or settlement. As either actual or potential claimants and regardless of their feelings for each other or the respective strengths of their competing claims, all of Mrs Marshall, Kim Marshall and Ms Carruthers had a common interest in maximising the amount recovered in respect of the death of Mr Marshall. It was that common objective that Mr Prescott and Mr Goldberg agreed to co-operate to pursue. Otherwise, there is no basis in the evidence for concluding that Mr Prescott and Mr Green acted upon any basis other than it was reasonably arguable that Ms Carruthers had a genuine claim. Res judicata and issue estoppels relied on by the plaintiffs 134The Marshalls' submissions contended that the Consent Orders and Interlocutory Orders invoke the principle of res judicata in a manner that is of assistance to them. They otherwise seek to seek to isolate and rely upon various issue estoppels that are said to arise out of Consent Orders and Interlocutory Orders. To the extent that these submissions address the effect of the Consent Declaration, I have already addressed its effect. Otherwise I note that no issue was taken on behalf of Mr Prescott that Kim Marshall was not a party to the proceedings that led to those orders. (Presumably this was so on the basis that he in effect claims through Mrs Marshall.) 135The principle of res judicata is of no assistance to the Marshalls. This principle operates so that "where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action" (Jackson v Goldsmith (1950) 81 CLR 446 and 466 per Fullagar J; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 597). A judgment or order by consent is a res judicata (Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508, Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq; Nau v Kemp & Associates Pty Ltd [2010] NSWCA 164; 77 NSWLR 687 per McColl JA at [64]). It is as effective as one pronounced after a hearing in merging the cause of action sued on in the judgment. However the fact that "a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment" (Chamberlain at 508). Thus in this case it is not possible to conclude that anything was necessarily decided by the Consent Orders other than existence of the retainer, which has already been addressed. Orders 2 and 3 of the Consent Orders resolved the entitlement of Mrs Marshall to obtain injunctive relief in respect of apprehended future conduct of Mr Prescott. That is completely different to the causes of action sued upon in these proceedings. 136The Marshalls' reliance on the doctrine of issue estoppel does not assist them either. Whereas the rule as to res judicata is engaged whenever a party attempts to litigate a cause of action sued on in earlier proceedings that has merged into a judgment, issue estoppel arises where a party sues on some other cause of action but alleges or denies the existence of a matter necessarily decided by the prior judgment or order (Anshun at 597, citing Blair v Curran (1939) 62 CLR 464 at 532). Although a judgment or order by consent may give rise to issue estoppels, the question of the extent to which it may do so is not settled (K.R. Handley, Spencer Bower and Handley: Res Judicata, 4th Ed (2009) at p 20). As Street CJ and Roper CJ in Eq stated in Isaacs, "[i]t is clear that the mere fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it" (at 75). A judgment, whether by consent or not, operates by way of estoppel only in relation to those matters which are necessarily decided by it (id). The observation in Chamberlain (at 508) noted above as to the difficulty in determining what Consent Orders have decided applies equally to issue estoppel as it does to res judicata. 137To determine what issues a judgment has necessarily decided and whether any issue estoppel arises, the court will "closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to" (Isaacs at 75, cited in Nau v Kemp at [65] per McColl JA; Rogers v R [1994] HCA 42; 181 CLR 251 at 263 per Brennan J). This will involve a consideration of the record of proceedings, including any terms of settlement (Isaacs at 75; Glazier v Australian Men's Health (No 2) [2001] NSWSC 6 at [73] per Austin J, reversed on other grounds in Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; 54 NSWLR 146). However, in circumstances where neither the record nor any other objective background material sheds further light on the matters in dispute, "[i]t is not appropriate to look behind the orders and construct a chain of implied consents to various parts of [the other party's case]" (Glazier at [73]). 138With orders 2 and 3 of the Consent Orders, nothing in the materials extraneous to the orders provides any assistance in determining whether any issue of fact or law helpful to the Marshalls was necessarily determined by those orders. It was contended that the restraints imposed by the injunctions that form part of the Consent Orders recognise "the [continuing] fiduciary nature of Mr Prescott's duties to [Mrs Marshall and Kim Marshall]" (plaintiffs' written submissions dated 15 August 2013 at [70]). I reject this contention. In Kallinicos (at 581 to 582) Brereton J explained that the jurisdiction to restrain a solicitor acting against a former client is not based on the existence of any continuing duty of loyalty but can be invoked either because of a threatened breach of the ongoing obligation to respect confidential information or because the overall "interests of justice" require it (or both). It follows that I do not accept that the Consent Orders create an issue estoppel to the effect that there is any ongoing fiduciary duty as they were capable of being justified on the bases identified by Brereton J. 139Similarly it was contended that orders 2(a) to (d) in the Consent Orders create an issue estoppel to the effect that Mr Prescott was "in breach of his post-retainer fiduciary duty to maintain the confidence in the confidential information of Mrs Marshall which came into his possession during the conduct of the Pennsylvania proceeding" (plaintiffs' written submissions in reply dated 19 August 2013 at [23]). I reject this contention. An injunction may issue even if there is only demonstrated a "real and sensible possibility" of the misuse of confidential information (Worth Recycling Pty Ltd v Waste Recycling & Processing Pty Ltd [2009] NSWCA 354 at [42] per Hodgson JA, with whom Spigelman CJ and Campbell JA agreed). It follows that the granting of such an injunction does not of itself establish that there has been a breach of the obligation of confidence. In fact the orders do not even assist in resolving whether there was such an obligation much less what the scope of that obligation was. Order 2(c) merely referred to "any confidential communications" and 2(d) referred to "any obligation of confidence". 140Further, even if the Consent Orders necessarily decided that Mr Prescott had breached his obligation of confidence to Mrs Marshall and Kim Marshall, then it would not assist them. In that event there would still be no means by which the Court could be satisfied that such a breach was the same as one or more of the breaches of confidence pleaded in the FASOC. 141Finally, the suggestion that the interlocutory orders gave rise to a res judicata or issue estoppel is without substance. Only a final order can have that effect (Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 at [40]; Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at 371). Breach of Confidence 142As noted, the Marshalls allege Mr Prescott misused confidential information when he acted for and then later assisted Ms Carruthers in the Marshall proceedings. Although at this point I address the parties' respective submissions concerning the identification and alleged misuse of the relevant confidential material, later in the judgment I will address the pleaded allegations of a breach by Mr Prescott of his ongoing duty of confidence. Background 143As hinted at earlier, the complaint that, after the termination of his retainer by Mrs Marshall and throughout the period he was acting for and then assisting Ms Carruthers in the Marshall proceedings, Mr Prescott thereby breached an equitable duty of confidence he owed to the Marshalls assumed greater importance with each iteration of the written submissions. In the plaintiffs' written submissions dated 15 August 2013 it was only mentioned as an adjunct to the assertion that he owed a fiduciary duty after the termination of his retainer (see for example [70]). There was no attempt to identify or define the "confidential information" he was said to possess. 144In the defendant's written submissions dated 15 August 2013, Mr Kelly SC submitted (at [64]) that, consistent with the above authorities, after Mr Prescott's retainer terminated his only surviving duty, fiduciary or otherwise, was to "preserve the confidentiality of information imparted during its subsistence". He further submitted that obligation was in this case robbed of any content because all that information was the "joint confidential information" of both the Marshalls and Ms Carruthers. Mr Kelly SC identified instances of such information that may have been or were imparted to Mr Prescott as information concerning "the potential settlement sum", the "quality of the evidence", and the "risks associated with the forum non [conveniens] application". 145In the plaintiffs' written submissions in reply dated 19 August 2013 there was a limited attempt to define the confidential information. At paragraph 30 Mr Bevan responded to Mr Kelly SC's contention that information was jointly owned by asserting that "[a]ll the confidential information arising from the Pennsylvania proceedings" was exclusively that of Mrs Marshall. However the only indication as to what that confidential information might be was in footnote 46 to those submissions which stated that the "confidential information is either referred to in, or located at". Thereafter he set out approximately seventeen references to the pages of the tender bundle but not their content. 146The application to amend that I determined in Marshall (No 2) then intervened. After publishing that judgment submissions were filed on behalf of Mr Prescott by junior counsel, Mr McManus, on 23 September 2013 which addressed each of the documents identified in footnote 46. 147The last word on the topic was in the plaintiffs' final written submissions in reply dated 9 October 2013. In those submissions Mr Bevan contended for the first time that "all information coming into the hands of Mr Prescott between the start of his retainer ... until its termination ... was confidential to Mrs Marshall ... and Kim [Marshall] ... only" (at [35]). (The plaintiffs' written submissions in reply dated 19 August 2013 had only referred to "all the confidential information arising from the Pennsylvania proceedings", which only begged the question as to what that was.) Having made that submission the plaintiffs' final written submissions in reply dated 9 October 2013 also contended: ""The suggestion that the plaintiffs have not demonstrated what the confidential information was or how it was misused ... is incorrect ... For the sake of completeness, and to remove any doubt about the issue, the information in question, its confidential nature, grounds for its confidential quality, and its sources are summarised in the tabular schedule which is annexure A to this outline for ease of reference (Schedule A)." 148Schedule A lists eight documents, six of which are letters from Mr Prescott. They represent a subset of the documents listed in footnote 46 of the plaintiffs' written submissions in reply dated 19 August 2013. As I understand this submission these documents are said to identify the confidential information but are not meant to be an exhaustive statement of the occasions on which it was said to be disclosed. Instead, as I understood the submission, it was contended that this was information that Mr Prescott possessed and which after his retainer from the Marshalls was terminated he brought to bear in acting and then later assisting Ms Carruthers. 149However this still leaves the apparent inconsistency in the two means by which the confidential information was identified in the plaintiffs' final written submissions in reply dated 9 October 2013 noted at [147]. I will treat them as alternative formulations. Principles 150In Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47, Megarry J specified the following conditions for the existence of an action for breach of an equitable obligation of confidence arising independent of contract: "First, the information itself ... must 'have the necessary quality of confidence about it.' Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it." 151This formulation was adopted by Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51, and Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [30]. It was adopted by Barrett JA (with whom Meagher and Ward JJA agreed) in Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2; 295 ALR 760 at [157] and is binding on me, subject to the qualification that it is uncertain whether proof of detriment is an element of the cause of action (see Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 at [105] per Campbell JA, with whom McColl JA agreed, and the cases cited therein; and Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 ("Smith Kline & French (No 1)") at 112 per Gummow J). 152In Streetscape at [158] Barrett JA noted that two propositions were implicit in these conditions, namely that the "particular information is specifically identified" and the "confidential nature of the identified information is established". In respect of the former "[p]recise delineation is necessary" (at [159]; see also Smith Kline & French (No 1) at 87 and O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 327 to 328 per Mason J, with whom the other members of the Court agreed). Otherwise Streetscape treated these conditions as also governing the elements that must be shown to obtain equitable damages for breach of confidence. 153In relation to the first requirement noted in [150], information has been said to have the "necessary quality of confidence" where it is not "public property and public knowledge" or, if it has been "constructed solely from materials in the public domain", in circumstances where the "skill and ingenuity of the human brain" have been applied (Del Casale at [103], citing Coco at 47). 154In relation to the second requirement, solicitors have a duty to keep the confidences of their clients (Baker v Campbell [1983] HCA 39; 153 CLR 52 at 65). This obligation extends to any confidential information obtained during the period of the retainer relating to the client's affairs, whether this information is obtained directly from the client or from third parties (Gurry on Breach of Confidence, 2nd Ed (2012) at p 400). 155With the third element, it is important to note that it does not involve a strict prohibition on disclosure but instead a restriction on the "misuse" of the information. Thus in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291 ("Smith Kline & French (No 2)") at 304 the Full Court of the Federal Court stated: "To avoid taking unfair advantage of information does not necessarily mean that the confidee must not use it except for the confider's limited purpose. Whether one adopts the 'reasonable man' test suggested by Megarry J (in Coco v A.N. Clark] or some other, there can be no breach of the equitable obligation unless the court concludes that a confidence reposed has been abused, that unconscientious use has been made of the information." 156Thus their Honours stated that at least in cases where the interests of the confider and confidee are "quite different, and known to be so" (at 303) then the confider's purpose of disclosure will not be determinative. All the information obtained by Mr Prescott 157As noted, the wide formulation of the confidential information exclusive to Mrs Marshall said to have been possessed by Mr Prescott was that "all information coming into the hands of Mr Prescott between the start of his retainer ... until its termination ... was confidential to Mrs Marshall ... and Kim [Marshall]". Given the manner in which their case was prepared, the Marshalls were effectively forced to adopt this formulation. The difficulty for them in relying on a case that isolated particular items or categories of confidential information is that, even allowing for a potentially wider test of causation in equity than in common law, their evidence and submissions did not enable any assessment of how the alleged misuse of any particular item, or even limited category, of confidential information by Mr Prescott was productive of any loss or damage they claim to have suffered. 158The obvious problem with this wider formulation is that it clearly embraces information that was not confidential to anyone. Thus to the extent that Mr Prescott acquired any knowledge of, say, the law of Pennsylvania, then that knowledge was not confidential information (O'Brien v Komesaroff at 327 per Mason J). Further, to the extent that it is said to embrace the personal background to the disputes between the Marshalls and Ms Carruthers including the terms of Mr Marshall's will, that was all extensively canvassed in the judgments of Macready AsJ and the Court of Appeal in the FPA proceedings and the proceedings in the Compensation Court. Thus in the end result this wide formulation is "so general that [I cannot be satisfied] ... that [this information] was ... imparted in circumstances which gave rise to an obligation of confidence and that it does not include material which is common knowledge" (O'Brien v Komesaroff id). For this reason the wider formulation of the confidential information said to have been misused by Mr Prescott should be rejected. It simply fails to conform with the long established requirement for precision in its formulation. I address the point made by Mr Kelly SC that the confidential information that was imparted to Mr Prescott was "joint confidential information" below at [164]ff. 159At this point it is appropriate to address Mr Bevan's submissions concerning the judgment of Gummow J in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209. The plaintiffs' final written submissions in reply dated 9 October 2013 rely almost exclusively upon that judgment and appear to seek to invoke it to support this wider formulation of the confidential information said to have been misused by Mr Prescott. Mr Bevan noted that in Sentry at 230 Gummow J referred to an article by Professor Finn which advocated either a rebuttable or irrebuttable presumption to the effect that "a prior retainer has resulted in the acquisition by the lawyer of confidential information so that he cannot act in the same or in a substantially related matter for an interest adverse to his former client unless the former client consents or unless the Court is satisfied that no confidential communication of possible relevance to that matter were in fact made". Mr Bevan submitted that his Honour "appears to have accepted that a rebuttable presumption arises in Australia to that effect". Thus Mr Bevan contended that Mr Prescott bore the onus of proving that the information was not confidential (plaintiffs' final written submissions in reply dated 9 October 2013 at [39]). 160These submissions are misconceived. First Gummow J did not accept that Professor Finn definitively stated the applicable law in Australia. In Sentry his Honour was dealing with an application to injunct a party from pursuing proceedings commenced in New York to restrain Australian based solicitors from acting for a client in litigation in Australia. One contention made in support of allowing the proceedings to continue in New York was that the law of New York was more stringent in addressing the circumstances in which a court would restrain a client's former solicitor from acting for the client's opponent in litigation and thus if the client was restrained from pursuing the New York proceedings a legitimate advantage accruing to them would be lost (Sentry at 228). Based on Professor Finn's article, which was said to be consistent with the position in New York, Gummow J only found that there was a "real possibility" that the law in Australia is "no less stringent" than what was said to be the law in New York (at 230). Clearly this was not a finding that Professor Finn's view represented the law. In any event, the suggestion that there is a shifting onus of proof has since been rejected (Worth Recycling at [42] per Hodgson JA, with whom Spigelman CJ and Campbell JA agreed). 161Second, both the analysis of Professor Finn and the judgment in Sentry proceeded on a basis, since invalidated in this State, that the former solicitor's fiduciary duty continued to subsist after the retainer was terminated (Sentry at 233). Thus in Beach Petroleum at [205] the Court of Appeal cited a passage from Prince Jefri to the effect that the solicitor's fiduciary duty ceased on the termination of the retainer and then added "(Compare National Mutual Holdings v Sentry Corporation (1989) 22 FCR 209)". 162Third, Mr Bevan's reliance on Sentry overlooks the fact that his clients are not seeking an injunction against a former solicitor. At [43] of the plaintiffs' final written submissions in reply dated 9 October 2013 Mr Bevan invoked Gummow J's discussion in Sentry of various cases which appear to establish a reasonably low threshold to obtain injunctive relief (such as Mills v Day Dawn Block Gold Mining Co Ltd (1882) 1 QLJ 62). Mr Bevan appeared to suggest that a similar low threshold was applicable in this case. The currently prevailing jurisprudential basis for injuncting a client's former solicitor from acting against them was stated by Brereton J in Kallinicos, which has already been noted. However this is not an application for an injunction. Instead the Marshalls seek damages for breach of an equitable obligation. The Marshalls must prove each element of that claim which I have already identified. In doing so the continuous stream of judicial statements requiring the identification of the relevant confidential information with particularity apply with full force. Schedule A information 163Next it is necessary to address the particular items of information described in Schedule A and which are said to have the necessary quality of confidentiality. Before doing so it is appropriate to address Mr Kelly SC's submission that I have noted above (at [144]) to the effect that any confidential information imparted to Mr Prescott during the subsistence of his retainer was jointly owned by the Marshalls and Ms Carruthers. 164Critical to addressing this contention is to consider the circumstances in which any such information was imparted to or received by Mr Prescott. I have already discussed those circumstances in addressing the scope of the fiduciary duty owed by Mr Prescott during the course of his retainer by Mrs Marshall. The critical matters to note are that (i) it was known and accepted by all that Mr Prescott also acted for Ms Carruthers; (ii) Ms Carruthers at the very least was a potential competing claimant upon any funds obtained as compensation in respect of Mr Marshall's death; (iii) Mr Prescott only undertook a co-ordinating and reporting role in respect of the Marshalls; (iv) there were agreed restrictions excluding Mr Prescott from accessing communications from Mr Goldberg in which he may have imparted personal information of the Marshalls and sought advice on quantum (see [118] to [121]); and (v) these matters came about from dealings between Mr Prescott and a solicitor acting on behalf of Mrs Marshall (and Kim Marshall), namely Mr Goldberg. Mr Prescott's retainer from both the Marshalls and Ms Carruthers was directed to the common objective of maximising the amount recovered in respect of the death of Mr Marshall (see [122] and [133]). 165These considerations warrant a partial acceptance of Mr Kelly SC's submission. To the extent that Mr Prescott received information which reflected the common objective of his respective retainers then it was the information of both the Marshalls and Ms Carruthers. The categories of information identified by Mr Kelly SC's submission are examples of this (see [144]). In terms of the elements of an action for breach of confidence noted in [150] it means that any disclosure of these categories of information by him in the course of disputation between the Marshalls and Ms Carruthers did not represent a "misuse" of the information. It would not constitute the "taking of [unfair] advantage" (Smith Kline & French (No 2)) for him to deploy information that his client, Ms Carruthers, was entitled to use. This is so either because it was her information which she was free to use as she wished or at the very least it was free to be used in a dispute between her and the Marshalls. There was no suggestion that Mrs Marshall was not free to use whatever information she had obtained about the Pennsylvania proceedings in her case against Ms Carruthers. If the material obtained by Mr Prescott was not common to both Mrs Marshall and Ms Carruthers then why have a separate agreement excluding Mr Prescott from receiving the correspondence between Kreindlers and Mr Goldberg concerning quantum? The position would be different if Mr Prescott had disclosed this information to third parties (see Murray v Yorkshire Fund Managers Ltd [1998] 1 WLR 951 at 957). 166However, I cannot accept the entirety of Mr Kelly SC's submission principally because, consistent with the authorities, there must be a close consideration of the particular information in question. One category of information that was exclusively confidential to Mrs Marshall was the communications that passed between Mr Goldberg and Kreindlers in respect of which it was agreed that Mr Prescott would be excluded from. Ms Carruthers had no interest in that information. If Mr Prescott came into possession of that information then it would be unfair for him to deploy that material on Ms Carruthers' behalf. 167Against that background it is necessary to consider the individual items in Schedule A. 168The first item in Schedule A was a letter that Mr Prescott sent to Mr Reiders on 8 June 2005 noted above at [82]. In the letter Mr Prescott stated that he had been referred to Mr Reiders by Mr Green. He set out the background to the dispute. He sought his assistance in "clarifying the position under the relevant Court rules involving claims being made through a deceased person" and asked five questions for which he sought Mr Reiders' response. 169Schedule A asserts that the confidential nature of the information is the "subject matter of the US proceedings, relationships between the parties, analysis of the competing claims on the Marshall estate funds [and the] terms of [the] will of Neil Marshall". 170The terms of Mr Marshall's will that are referred to in the letter are referred to in the Court of Appeal's judgment in the FPA proceedings (Marshall v Carruthers [2002] NSWCA 47 at [7]). Mr Prescott's analysis of the claims derived from applying his understanding of the law to the facts as found is also not Mrs Marshall's information. I infer that it was undertaken after his retainer from Mrs Marshall was terminated. Certainly the contrary has not been shown. Otherwise to the extent that the letter recites aspects of the background to the dispute which had not been publicly disclosed, it was certainly not the exclusive confidential information of the Marshalls. Its deployment on behalf of Ms Carruthers was not an unfair or unconscientious use. 171The second item listed in Schedule A was a letter from Mr Prescott to the GIO's solicitors, Turks Legal, dated 2 August 2005. Mr Prescott referred to the time he had spent with counsel and Teece Hodgson & Ward addressing a request for particulars. In relation to discovery Mr Prescott stated: "I can foresee however that the pleadings will be resolved in the not too distant future and in particular once we have gained information in relation to US Law from the United States. The issue then of discovery becomes very important indeed and from the point of view of Mrs Carruthers and your client it is fundamental. There is no doubt, and David Greenwell despite his current illness, has confirmed that there is a lot of very powerful documentation located in the files of Kreindler & Kreindler. The issue is making sure we can get hold of that documentation in a very short time ... I think it is hard to overstress the importance of ensuring that there is a thorough examination of their file and extraction of as many of the relevant documents as possible. This is because I am fully aware of the fact that there are is a great deal of correspondence ... between Turner Freeman and Kreindler & Kreindler. It is important to note that at all times Turner Freeman refused to allow the writer to have any involvement in the quantum aspects. I am equally aware that they wrote to Kreindler & Kreindler seeking full details as to how precisely ... American law worked in relation to the assessment of damages. Equally I am aware that there is some correspondence between them in respect of a refusal of Turner Freeman to pay the funds to Ms Carruthers pursuant to their recommendations." 172Schedule A asserts that this letter reveals that Mr Prescott had an "[a]wareness of the contents of the Kreindler[s] file in respect of conduct of the Pennsylvania proceedings for the Marshalls" and the "application of US law on the assessment of damages to known facts of the Marshall estate". In relation to the latter aspect there is nothing in the letter that reveals he was in possession of knowledge of US law on the assessment of damages to known facts, but even if he was it would not be confidential. 173The position with the former is less clear. It is likely that Mr Prescott was frank in this letter. It is highly improbable when he wrote it that he ever contemplated it would be the subject of external scrutiny by reason of the loss or waiver of legal professional privilege. Consistent with what was agreed between Mr Prescott and Mr Goldberg, this letter suggests that during the course of his retainer Mr Prescott did not receive copies of the correspondence passing between Mr Goldberg and Mr Green concerning quantum or the refusal of Kreindlers to unconditionally provide the settlement moneys as demanded by Mr Goldberg. However he clearly became aware that there was such correspondence and of the topics which it covered, namely the details of US law and the stand off over the disbursement of funds. 174Mr Bevan's submission on this topic amounts to a contention that knowledge of the fact that there was correspondence on the topic of entitlements under US law and disbursement of funds was confidential to Mrs Marshall to the exclusion of Ms Carruthers. I do not agree. Such knowledge is really no different to supposition from the accepted fact that Mr Prescott was during his retainer excluded from receiving that material and was aware of the demarcation. 175The third item is a letter from Mr Prescott to the GIO's solicitors dated 4 August 2005. His letter recounts that he had contacted lawyers at Kreindlers but they (wisely) stated they would not assist with the provision of information without authority from Mrs Marshall. Schedule A describes the confidential nature of the information in this letter as being an "[a]wareness of the contents of the Kreindler[s] file in respect of their conduct of the Pennsylvania proceeding[s] for the Marshalls". The letter does not reveal that. At most it reveals an awareness that they had a file. That was not confidential information and it was certainly not confidential to the exclusion of Ms Carruthers. 176The fourth item in Schedule A is a letter from Mr Prescott to Teece Hodgson & Ward dated 11 August 2005 which was copied to the GIO's solicitors. Mr Prescott recounts a conversation with Mr Greenwell who was then in hospital. Mr Prescott recorded: "Of interest are his comments in relation to the documentation in the United States and, of course, I am referring to the Kriendler & Kriendler [sic] file. Firstly he indicates that he is aware of the fact that there is correspondence between Kriendler & Kriendler [sic] and Turner Freeman which directly relates to the issue of the dispensation of the settlement funds. From discussions that he has had with Mr Green it becomes clear that that correspondence was to the effect that the monies gained through the deceased Marshall did not flow from the information and dependency of Mrs Marshall except possibly to a very small degree. As such they did not believe that the funds should be dispensed to Mrs Marshall but should have been dispensed in accordance with their entitlements. It is evident that they did their very best to prevent the funds being moved to the Turner Freeman Trust Account as they felt there was a potential to deprive [Ms] Carruthers of her just entitlements. Mr Greenwell also indicated that in his view and on the basis of his knowledge of Kriendler & Kriendler [sic] they are firstly not interested in our domestic dispute and, secondly, and as you would expect, do not have a great deal of understanding of the Australian legal system." (emphasis added) 177Schedule A describes the nature of the confidential information referred to in this letter as the "[c]ontents of discussions with Justin Green; awareness of the contents of the Kreindler[s] file in respect of their conduct of the Pennsylvania proceeding[s] for the Marshalls; the manner of determination of the claim by [the] Marshalls and negotiation of its settlement with [Lycoming] and others in the US". 178The latter aspects of this description are not touched upon in this letter, but the former are. The letter confirms that, prior to speaking to Mr Greenwell, Mr Prescott was not aware of the contents of the correspondence between Mr Goldberg and Kreindlers. However, Mr Greenwell appears to have been aware of the contents of the correspondence concerning the dispute over the dissemination of the settlement funds and passed that knowledge on to Mr Prescott. The contents of that correspondence, which Mr Prescott was excluded from, were confidential to Mrs Marshall. 179Thus, prima facie, it appears that Mr Prescott has at this time acquired information which he knew or should have known was information that was exclusively confidential to Mrs Marshall, and then disclosed it to the GIO's solicitors and Teece Hodgson & Ward. It appears to have been the very class of information which he was deliberately excluded from receiving. 180The fifth item is a letter from Mr Prescott to the GIO's solicitors dated 15 August 2005. In the letter Mr Prescott comments on what appears to be a request for him to produce documents in response to a discovery request and inquires about being paid for providing "assistance". In one part he states, inter alia, "... I have already gained a disc dealing with the emails between Mr Greenwell and [Kreindlers]. I have to say that there are an awful lot of them and it will take some time to go through them". 181Schedule A described the contents of the disc as containing "all available confidential information relating to the conduct of the claim by the Marshall estate against [Lycoming] and others in Pennsylvania held in electronic format". 182The disc was not tendered. The only evidence of its contents is the description that it contains the emails between Mr Greenwell and Kreindlers. I do not infer that it contained the letters passing between Mr Goldberg and Kreindlers. I accept that it may contain information about the proceedings generally, but I am not able to be satisfied that, in receiving this disc, Mr Prescott acquired information that was confidential to Mrs Marshall to the exclusion of Ms Carruthers. 183The sixth item in Schedule A is a letter from Mr Prescott to Mr Greenwell dated 8 September 2005. Mr Prescott wrote to Mr Greenwell enclosing a draft affidavit for his consideration, the terms of which are unknown. In one part of the letter he stated "... I attach details of I Audio NP3/MPG Player that I referred to you when I visited you in the [hospital]". 184Schedule A asserts that the contents of the "diskette" as referred to in this extract from Mr Prescott's letter contain "all available confidential information relating to the conduct of the claim by the Marshall estate against [Lycoming] and others in Pennsylvania held in electronic format". 185There is no evidence that this letter refers to any diskette, if that is meant to be a different disc to the one referred to in the letter of 15 August 2005. The phrase "I Audio NP3/MPG Player" was not explained but it appears to be a reference to software designed to play audio or video files. I am not satisfied that anything in this letter suggests or refers to some category of confidential information that Mr Prescott had acquired that was confidential to Mrs Marshall to the exclusion of Ms Carruthers. 186The seventh item in Schedule A was paragraphs 1 to 20 of the affidavit of Janette Kveytel sworn 31 October 2005. Ms Kveytel was a solicitor employed by Teece Hodgson & Ward. She swore this affidavit in support of the notice of motion seeking an extension of time for Ms Carruthers to comply with the Court's timetable in the Marshall proceedings (see [87]). Paragraphs 3 to 7 of the affidavit set out the background to the proceedings. These are said to be based on information provided by Mr Prescott and Mr Greenwell. Paragraphs 8 to 11 described various difficulties the deponent had encountered in obtaining assistance from Mr Greenwell. Paragraph 12 recorded that Mr Prescott had undertaken to make contact with attorneys in the USA to obtain an opinion on the law of Pennsylvania. Paragraphs 13 to 20 annexed correspondence between Mr Prescott and Mr Reiders and other lawyers in the USA. 187Schedule A describes the contents of this affidavit as being based on "instructions provided by Mr Prescott to Ms Kveytel which recount the facts and circumstances of the Pennsylvania proceeding[s] and the importance of the requirement to obtain more information from Mr Prescott for the success of the Carruthers' claim". In essence this is a reference to the common background to the Pennsylvania proceedings. I am not satisfied that anything in this part of the affidavit suggests or refers to some category of confidential information that Mr Prescott had acquired that was confidential to Mrs Marshall to the exclusion of Ms Carruthers. 188The eighth item in Schedule A is a letter from Mr Goldberg to Mr Prescott dated 14 November 2005. It was sent just prior to the return of the notice of motion that led to the making of the Interlocutory Orders on 16 November 2005 (see [90]). It was sent in response to a letter from Mr Prescott also dated 14 November 2005. In that letter Mr Prescott had debated various matters with Mr Goldberg. He had referred to the execution of a funding agreement with ILF by Ms Carruthers and enclosed a letter from Mr Goldberg to Mr Bowman dated 10 April 2003. In his response of the same day Mr Goldberg referred to three ILF funding agreements executed by his clients, namely two by Mrs Marshall and one by Kim Marshall (see [21] and [27]). Mr Goldberg also complained about Mr Prescott being in possession of his letter to Mr Bowman. One part of the plaintiffs' final written submissions in reply dated 9 October 2013 contends that Mr Goldberg complained "bitterly" about the misuse of these agreements by Mr Prescott ([44(g)]). Mr Goldberg made no such complaint. 189Schedule A asserts that the confidential information referred to in this exchange was the three ILF funding agreements executed by the Marshalls and the letter of 10 April 2003. 190In relation to the ILF funding agreements, the submission is misconceived as there is not a hint of any use or deployment of them by Mr Prescott. It is Mr Goldberg who refers to them not Mr Prescott. 191In relation to the letter that Mr Goldberg sent to Mr Bowman dated 10 April 2003, I infer that Mr Prescott obtained that letter from Mr Greenwell shortly after being served with the notice of motion seeking to restrain him from acting in the Prescott proceeding. If he had it earlier I expect he would have referred to it in the correspondence referred to above. The sending of that letter back to Mr Goldberg was not an abuse of any confidence given that Mr Goldberg acted for Mrs Marshall and Mr Prescott was seeking to respond to allegations that had been made against him. Conclusion 192Except in one limited respect, I am satisfied that the Marshalls have failed to establish that Mr Prescott misused any of their confidential information. The only limited respect concerns his conduct in receiving from Mr Greenwell and then passing onto Teece Hodgson & Ward the contents of the communications between Mr Goldberg and Kreindlers in early 2003 concerning the distribution of the proceeds of the settlement. With respect to this conduct I am not prepared to make a definitive finding that this involved a misuse of the Marshalls' confidential information because, as explained at [233] to [235] below, such an allegation was not part of the pleaded case and in those circumstances it would be unfair to Mr Prescott to do so. The pleaded case 193During the course of the hearing, it was submitted on behalf of Mr Prescott that the Marshalls' written and oral submissions made allegations that went outside the pleaded case in a number of respects. Eventually this led to an application to further amend the statement of claim being made on behalf of the Marshalls after oral submissions had concluded. I determined that application and only allowed some of the amendments sought. I made orders allowing for further written submissions on certain limited issues (Marshall v Prescott (No 2) [2013] NSWSC 1254). 194In Marshall v Prescott (No 2) at [22], I reiterated that this case would be determined on the pleadings. While this is, or should be, axiomatic in any litigation, it is particularly apposite to this case involving as it does events that occurred a long time ago and the making of serious allegations. To that end I will address the specific allegations made by the pleadings below. To the extent that the submissions made on behalf of the Marshalls allege matters against Mr Prescott that are said to give rise to a liability on his part which are not pleaded, I will ignore them (see for example [59], [71], [73], [74], [75], [96] to [97] of the plaintiffs' written submissions dated 15 August 2013). 195The structure of the FASOC was that at various points certain matters were defined as constituting some form of misconduct by Mr Prescott, eg the "Prescott's first Marshall misconduct". Each identified form of misconduct was later alleged to be actionable in various ways such as by a tortious conspiracy, a breach of a term of his retainer, a breach of the fiduciary duty it was said he owed to Mrs Marshall or the Marshalls, negligence, etc. To address the pleaded case it is necessary for this judgment to adopt the same nomenclature but nevertheless I consider this to be a regrettable form of pleading. It defines certain matters involving Mr Prescott as "misconduct" so that the suggestion he engaged in misconduct is assumed rather than justified. It means that a judgment such as this which is published and text searchable will have numerous references to Mr Prescott and "misconduct" even though I reject all of the pleaded causes of action against him. 196This problem with the FASOC is exemplified by [87] which pleads: "It was necessary for [Mrs Marshall] to bring the Prescotts proceedings because of the need to ensure the success of the Carruthers proceedings for the benefit of the [Marshalls] to restrain Prescott from assisting Carruthers in her defence and cross-claim in the Carruthers proceedings to the detriment of the [Marshalls] (Prescotts' fourth Marshall misconduct)." (emphasis in original) 197Another part of the pleading already accuses Mr Prescott of misconduct in assisting Ms Carruthers in her defence and cross claim. Thus, properly analysed, this paragraph does not allege any "conduct" by Mr Prescott, much less anything that could amount to "misconduct" by him, yet the label "Prescott's fourth Marshall misconduct" remains. The (so called) Prescott's First Marshall Misconduct 198The only sensible means of describing this allegation is to set out the relevant parts of the FASOC that describe the Prescott first Marshall misconduct in full: "34. On 25 April 2003, after receiving further notice of a claim on the net settlement amount by Carruthers from two sources, namely, from David Greenwell, and from Prescotts, Kreindler and Kreindler entered into a confidential understanding, arrangement or agreement with those legal representatives of Carruthers having the following terms: (a) Kreindler and Kreindler promised to keep secret from the plaintiffs the fact of the making of the Carruthers' claim until Kreindler and Kreindler had procured the plaintiffs' execution of the release documents required by Lycoming on behalf of the Pennsylvania defendants as a term of payment of any gross settlement amount under the in-principle compromise to the plaintiffs; (b) Kreindler and Kreindler also agreed to facilitate or otherwise assist Carruthers' legal representatives to make a claim on her behalf on the net settlement amount after it was paid to a third party stakeholder in Australia on behalf of the [Marshalls] and Carruthers by undertaking the conduct referred to in paragraph (a) above together with a process of advising Carruthers' legal representatives in Australia on the law in Pennsylvania under which the legal entitlement to damages for wrongful death and survival actions would be determined (the Kreindlers' confidential arrangement). PARTICULARS ... 35. When David Greenwell (Greenwell) made the Kreindlers' confidential arrangement he did so: (a) on behalf of the defendant for the ultimate benefit of his other client, Carruthers; (b) on instructions from, and as the duly authorised agent of, the defendant; (c) in breach of the terms of the defendant's retainer from the plaintiff (both express and implied); (d) in breach of the defendant's duty of care to the plaintiffs as their solicitor; (e) in breach of the defendant's fiduciary duty to the plaintiffs as their solicitor. 36. In making the Kreindlers' confidential arrangement through the agency of Greenwell the defendant committed a conspiracy with Kreindler and Kreindler to: (a) commit an unlawful act or acts, being the various breaches of duty pleaded in the immediately preceding paragraph, with the intention of harming the plaintiff's legitimate financial interests; or (b) perform a lawful act or acts, being the various breaches of duty pleaded in the immediately preceding paragraph, which had the predominate purpose of harming the plaintiff's legitimate financial interests, and in both cases that conduct caused the plaintiffs to suffer loss and damage (Prescott's conspiracy conduct). 37. The making of the Kreindlers' confidential arrangement on 25 April 2003 constituted breaches of various duties owed by Prescott to the plaintiffs (Prescott's initial breaches of duty), in addition to the Prescotts conspiracy conduct, namely: (a) a breach of the terms of the Prescotts retainer (express and implied); (b) a breach of the duty of care owed by Prescott to the plaintiffs as their solicitor under his retainer; (c) a breach of the fiduciary duty owed by Prescott to the plaintiffs as their attorneys under their retainer of him, and Prescotts' [sic] initial breaches of duty and Prescotts' [sic] conspiracy conduct are collectively referred to as 'Prescott's first Marshall misconduct'." (emphasis in original) 199Paragraph 34 identifies certain conduct said to be the "Kreindlers' confidential arrangement". It is not clear whether Mr Prescott is one of the "legal representatives of Carruthers" referred to. Paragraph 36 alleges that the Kreindlers' confidential arrangement was made "through the agency of Greenwell". The allegation that Mr Greenwell was Mr Prescott's "agent" was not elaborated upon other than the assertions in paragraph 35. The proposition that merely because Mr Prescott had briefed Mr Greenwell then any acts or knowledge of Mr Greenwell are imputed to Mr Prescott especially for the purpose of forming a tortious conspiracy is not one that I accept, although I will assume it in the Marshalls' favour. 200There are only three items of evidence that point to any possible conduct by Mr Prescott in the period embraced by this part of the pleading, whether undertaken via Mr Greenwell or in his own right. The first is the email from Mr Greenwell to Mr Green of 13 April 2003 noted in [59] above. The email confirms that Mr Prescott had provided Mr Greenwell with a copy of Mr Goldberg's letter of 22 March 2002. I infer that he did so because he was aware that Mr Goldberg on behalf of Mr Marshall was seeking to have the entirety of the net proceeds of the settlement released to his clients to the exclusion of Ms Carruthers and, in doing so, was asserting that Kreindlers owed no duty to Ms Carruthers. To that end Mr Prescott via Mr Greenwell was seeking to preserve Ms Carruthers' position. 201The second potential item of evidence is the email from Mr Green to Mr Greenwell which was copied to Mr Bowman on 25 April 2013 (see [63]). There is no evidence that that email was sent to Mr Prescott and the exchanges in 2005 discussed above suggest it was not. It refers to a lawyer in the United States having been contacted by "the solicitor for Carruthers" who "wanted to know what could be done in the U.S. to prevent all of the Marshall settlement being paid to Mrs Marshall and Kim [Marshall]". It seems unlikely that the "solicitor for Carruthers" being referred to is Mr Prescott as Mr Green would simply refer to him by his name given that Messrs Green, Greenwell and Bowman all knew him. It is more likely that that solicitor was someone from the firm Teece Hodgson & Ward, but I infer any contact by anyone from that firm was done with at least Mr Prescott's knowledge and most probably his encouragement. 202However there is no evidence that either Mr Greenwell or Mr Prescott joined in Mr Green's request to "keep this confidential" and I am certainly not satisfied that Mr Prescott did. Not only is there is no evidence from which that could be inferred, there is a significant piece of evidence strongly suggesting against it, namely the third item of evidence which was the letter from Teece Hodgson & Ward to Kreindlers on 16 May 2003 requesting that it not disseminate the proceeds of the settlement to Mrs Marshall (see [68]). Again I infer that this was sent with the knowledge of Mr Prescott and he would have been aware that it was likely to be passed onto Turner Freeman, as it duly was. 203One aspect of paragraph 34(a) of the FASOC is the assertion that somehow there was some secrecy about "the fact of the making of the Carruthers' claim" pending the execution of a release by Mrs Marshall (and the funds being secured). This contention has no substance. Mrs Marshall was not sent the Deed of Release until some time around 23 May 2003 but, as just noted, by 16 May 2003 Teece Hodgson & Ward had expressly stated that Ms Carruthers would make some form of claim on the settlement monies and this was passed onto Mr Goldberg. Further, Mr Greenwell and Mr Prescott had informed Mr Allen from Turner Freeman's Adelaide office of that in late February 2003. In cross examination Mr Goldberg accepted that he knew a claim was being asserted on Ms Carruthers' behalf although he did not consider it was genuine. 204In any event, as I have stated it should have been obvious to Mrs Marshall that Ms Carruthers was always a claimant or potential claimant on any funds obtained from the Pennsylvania proceedings. Whether the claim would be against the fund directly or the estate is immaterial for present purposes. From the very outset Mr Prescott stated that he acted for her. Neither Mr Goldberg nor Mrs Marshall was ever advised to the contrary. As stated, the background was that Mrs Marshall and Ms Carruthers had been making competing claims against each other in other litigation for a number of years. Mr Goldberg either did know or should have known that, unless there was some agreement, Ms Carruthers was overwhelmingly likely to make a claim in some form. 205The events of February to May 2003 are not especially difficult to gauge at least so far as Mr Prescott is concerned. It was clear to him and Mr Goldberg that he acted for Ms Carruthers and Mr Goldberg acted for Mrs Marshall and her son. From the outset they were both aware or should have been that there was a strong likelihood that there would be disputation between the Marshalls and Ms Carruthers about the distribution of any proceeds from the Pennsylvania proceedings. However in the meantime there needed to be some cooperation to pursue those proceedings to maximise the prospects of obtaining a recovery. To that end Mr Prescott assumed an obligation to Mrs Marshall in relation to the pursuit of the proceedings while still being retained by Ms Carruthers. In April 2003 Mr Goldberg made a pre-emptive strike. In cross examination he accepted that he sought to capture the whole of settlement and deprive Ms Carruthers of the entirety of it. In response Mr Prescott sought to at least preserve Ms Carruthers' position by providing Mr Greenwell with the letter of 22 March 2002 and then either consented to or encouraged Teece Hodgson & Ward to write its e-mail of 16 May 2003. 206It follows that the factual allegation in subparagraph 34(a) of the FASOC completely fails. I am not satisfied that Mr Prescott either in his own right or somehow via Mr Greenwell entered into an "understanding, arrangement or agreement" that involved Kreindlers (or anyone else) "keep[ing]" secret from Mrs Marshall the fact that Ms Carruthers was making any form of claim at any point, including prior to the execution of the release by Mrs Marshall. There is no evidence to support that factual allegation and in fact the evidence is all to the contrary. The fact that Ms Carruthers was or would make a claim was obvious or should have been to all involved from the outset. In the events that happened Mrs Marshall via Mr Goldberg was advised of that fact well before his client was presented with a proposed release. He was sent the file note of the meeting that occurred in late February 2003. He received Kreindlers' email forwarding the email from Teece Hodgson & Ward. 207The factual allegation in subparagraph 34(b) of the FASOC is a difficult one to unpack. The paragraph opens with an allegation that Kreindlers entered into a "confidential understanding, arrangement or agreement" with the "legal representatives of Carruthers" pursuant to which Kreindlers agreed to facilitate the making of a claim on behalf of Ms Carruthers on moneys paid to a third party stakeholder by two methods. The first was said to involve "undertaking the conduct referred to in [34](a)", an allegation that I have already rejected. The second was said to involve a "process of advising Carruthers' legal representatives in Australia on the law in Pennsylvania under which the legal entitlement to damages for wrongful death and survivors actions would be determined". I have searched in vain for any evidence that there was any agreement amongst the relevant players to undertake that step. There is no such evidence. 208Mrs Marshall has failed to establish the factual allegations in [34] of the FASOC and that part of [36] that alleges Mr Prescott made the Kreindlers' confidential arrangement. 209To this point I have not considered the position of Kreindlers in this period as it is not the defendant. Mr Prescott is. However it is appropriate to record one finding I make concerning Kreindlers because of its significance to so much of the Marshalls' case as alleged that the conduct of Mr Prescott in this period was causative of the loss sought to be recovered. In particular it was contended that, if it were not for Mr Prescott's conduct, Kreindlers would have paid over the net settlement proceeds to Turner Freeman without conditions. In that event it is said that the Marshall proceedings would not have been commenced (because there would not have been any undertaking given to Kreindlers to commence them). The Marshalls further contended that, having lost in the Court of Appeal in the FPA proceedings, Ms Carruthers would not have commenced proceedings in her own right and thus Mrs Marshall would have avoided incurring the legal costs that she did in the Prescott proceedings and the Marshall proceedings. 210The difficulty with that contention is that I am satisfied that, irrespective of any intervention on the part of Mr Prescott (or Mr Greenwell), unless Ms Carruthers abandoned her claim entirely Kreindlers would either not have released the funds to Turner Freeman without the undertakings that it sought, or would have retained the funds itself. Mr Goldberg launched his pre-emptive strike in his letter of 8 April 2003 (see above at [52]). Kreindlers' response was quick and emphatic. Its letter was sent back the same day and concluded with the statement "[u]nless an agreement can be reached, we will have to hold the settlement until a court of competent jurisdiction" decided the issue (see [54]). The only subsequent change from that position was that it eventually released the funds subject to an undertaking they would not be distributed by Turner Freeman without an appropriate court order, and that proceedings of the kind it envisaged would be commenced. In context that change was immaterial. 211The submissions lodged on behalf of the Marshalls contended that this was only a prima facie view and that it was Mr Prescott, either in his own right or via Mr Greenwell, who caused it to become a final one. I reject this submission. The argument in support of it was as follows (at [5] of the plaintiffs' written submissions in reply dated 19 August 2013): "... the [Marshalls] contend that Mr Green never believed, on the available evidence, that Carruthers had any entitlement whatsoever under Pennsylvania law. He well knew her to be persona non grata under Pennsylvania law [footnote]. His acceptance of her potential entitlement to the fund was wholly based on what Mr Greenwell told him (on instructions from Mr Prescott) [footnote], which was that Ms Carruthers' rights (if any) arose under the law of Australia [footnote]. He readily accepted whatever Mr Greenwell told him." 212The footnotes to this submission reveal that the evidence that is said to support the assertion as to Mr Green's belief concerning Ms Carruthers' entitlement is Mr Bowman's handwritten file note which I have already addressed (at [65] to [66]). The footnotes also reveal that the evidence that is said to support the contention that Mr Prescott via Mr Greenwell talked Mr Green into having the opinion attributed to him was the email of 13 April 2003 (see [59]). The email of 13 April 2003 merely asserts that Mrs Marshall had a fiduciary duty in respect of Ms Carruthers because of the terms of the letter of 22 March 2002. It is silent about Ms Carruthers' status as a de facto under Australian law and its interaction with the law of Pennsylvania. Any opinion that Kreindlers formed about Ms Carruthers' status appears to have been based on its own assessment of the Court of Appeal's decision in the FPA proceedings. There is no evidence that it ever sought any opinion from Mr Prescott or Mr Greenwell on that issue. 213In a similar vein Mr Bevan also sought to argue that Mrs Marshall lost the "opportunity" to persuade Kreindlers to the contrary because of Mr Prescott's conduct. I reject that contention also. There was no lost opportunity to persuade Kreindlers because it was never going to change their mind. The position stated by Kreindlers in its letter dated 8 April 2002 was completely consistent with its statements as to its understanding of its own role throughout 2002. Thus in his letter of 1 August 2002 Mr Green stated that his firm would not involve itself in "intra or inter-family disputes" and the "distribution of the monies is a separate issue" to the role it assumed, namely "maximis[ing] the recovery for each decedent's estate" (see [42]). 214Kreindlers was said to be a firm experienced in the bringing of proceedings on behalf of multiple claimants arising out of the same event or events whether they be class actions or a collection of actions. Mr Prescott's role so far as they were concerned was to coordinate the various claimants in Australia. Kreindlers was in a position to and no doubt did make its own assessment of the appropriate course to adopt in response to Mr Goldberg's pre-emptive strike. Mr Green's immediate response on 8 April 2003 to the suggestion that Kreindlers unconditionally release the funds to Turner Freeman and the subsequent resistance of Kreindlers was completely consistent with what it described as its role. It reflected Kreindlers' assessment that Mrs Marshall and presumably it would be exposed if it agreed and it turned out that Ms Carruthers had a valid claim (either on the funds directly or through the estate). Kreindlers' letters consistently reflected a belief on its part that Ms Carruthers had an arguable claim on any funds that might be recovered. 215Paragraph 36 of the FASOC alleges that Mr Prescott engaged in a conspiracy by unlawful means ([36(a)]) and lawful means ([36(b]). This was expanded upon in [107] of the FASOC. It follows from my rejection of the factual contentions that support those allegations that the conspiracy claim, at least so far as it involves the Prescotts first Marshall misconduct, is not made out. Paragraph 37 of the FASOC alleges that the first Marshall misconduct constituted a breach of Mr Prescott's retainer, negligence and a breach of the fiduciary duty he owed Mrs Marshall. Again these paragraphs were expanded upon at [103] to [106] of the FASOC. Again, at least so far as they involve the Prescott's first Marshall misconduct, these paragraphs are not made out for the same reasons. In relation to the allegation that he pursued a conspiracy by lawful means, it also fails because any conduct undertaken by Mr Prescott was for the advancement of the interests of Ms Carruthers (Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435). 216Further, the finding that I have made at [210] means that no damage was occasioned by any conduct undertaken by Mr Prescott prior to the termination of his retainer on 23 May 2003. This suffices to deny causation both at common law and equity (Beach Petroleum at [449]). 217Finally I note that the question of whether or not the conduct of Mr Prescott in procuring the sending of the letter of 22 March 2002 to Mr Green on 13 April 2003 (see [200]) breached the fiduciary duty he owed to Mrs Marshall and Kim Marshall was not one that was raised by the pleaded case and I have not addressed it. I rejected the Marshalls' attempt to amend to include a further claim against Mr Prescott based on this aspect of his conduct in Marshall (No 2) at [32] to [54] and [55] to [62]. The (so called) Prescott's first, second, third and fourth GIO misconduct (collectively the so-called Prescott's second Marshall misconduct) 218The next part of the FASOC defines various forms of conduct and events as follows: "Prescott's first GIO misconduct 66. On 17 July 2003, in the immediate aftermath of the giving of the [Marshalls] written undertaking and the commencement of the Carruthers proceeding in pursuance of that undertaking, the defendant commenced a course of conduct of procuring Carruthers to make a formal claim upon the net settlement amount and GIO Worker's Compensation (NSW) Limited ACN 0454 523 698 (GIO) to fund a defence and cross-claim in the Carruthers proceeding in the name of Carruthers for her own benefit as to part of the net settlement amount and as the nominee of GIO in order to recover an amount to enable GIO to reimburse itself for the $201,906 paid to Carruthers under a judgment given in her favour on 26 July 2001 in the Compensation Court of NSW as the dependent spouse of the deceased in respect of his worker's compensation death benefit entitlement (Prescott's first GIO misconduct). PARTICULARS ... 67. On 15 October 2004 Carruthers filed a defence and cross-claim in the Carruthers proceeding on behalf of GIO as its nominee and at the expense of GIO in which she: (a) denied that the [Marshalls] had any entitlement at all to the net settlement amount; (b) asserted that she alone was entitled to the whole of the net settlement amount; (c) claimed the payment of the net settlement amount to her beneficially; (d) asserted that the net settlement amount was held on trust for her by Turner freeman and not for the plaintiffs; (e) failed to identify whether her alleged right to the net settlement amount arose under the law of New South Wales, the law of Pennsylvania or under the law of another jurisdiction (Carruthers defence and cross-claim); (f) failed to disclose that she was acting as a defendant and cross-claimant [i]n the proceedings as the nominee of GIO PARTICULARS ... ... 71. The entry of Carruthers into the GIO litigation funding agreement was made secretly, in that knowledge of it was withheld from the plaintiffs until discovery of documents was given to them in respect of the defendant's files and other records in 2006 in the Prescott proceedings pleaded in paragraph 82 below (Prescott's third GIO misconduct). PARTICULARS ... 71A. On 9 June 2005 Carruthers and GIO entered into a final litigation funding agreement (the GIO final litigation funding agreement) for the defence and prosecution of a cross-claim in the Carruthers proceeding in consequence of steps taken by Prescott to procure Carruthers and the GIO to enter it (Prescott's fourth GIO misconduct). PARTICULARS ..." (emphasis in original) 219The definition of "Prescott's third GIO misconduct" suffers from the vice I have identified at [197], namely that it does not identify any conduct on the part of Prescott other than perhaps implicitly alleging that it was Mr Prescott who withheld knowledge of the funding agreement(s) with the GIO from Mrs Marshall's solicitor. The definition of "Prescott fourth GIO misconduct" also suffers from the same problem. 220Leaving those matters aside, the factual contentions in these paragraphs have mainly been established, although it is doubtful that Mr Prescott's conduct could be described as it is in [66] of the FASOC as "procuring" Ms Carruthers to make a claim if that is meant to convey anything other than acting for her (until 10 June 2005) and then taking steps to obtain funding for her defence and pursuit of the cross claim, both of which were undertaken for Ms Carruthers' benefit and the GIO. Further, [71B] of the FASOC pleads that, but for Prescott's third and fourth GIO misconduct, Ms Carruthers would not have continued to defend the proceedings or pursued her cross claim and, instead, Mrs Marshall would have obtained summary judgment. In light of the statement in Mr Prescott's letter of 30 July 2004 (see [79]) and paragraph F of the recitals to the Final Funding Agreement noted above (at [81]), I accept that assertion. It seems that Ms Carruthers did not want to assume any further risks in conducting litigation after her loss in the Court of Appeal. 221However what legal duty was infringed by this conduct of Mr Prescott? Paragraph 77 of the FASOC alleges that the so called "Prescott's second Marshall misconduct" (which is defined as the "Prescott first, second and third GIO misconduct", and which I will treat as including the "Prescott fourth GIO misconduct") constituted (i) a breach of the "ongoing terms of [Mr Prescott's] former retainer from the plaintiffs [presumably Mrs Marshall] (express or implied)"; (ii) a breach of a duty of care said to be owed to the Marshalls by Mr Prescott; (iii) a breach of the fiduciary duty he is said to have owed the Marshalls; (iv) a breach of his obligation to keep confidential the information he had obtained during his retainer from them either under the terms of the retainer or as an obligation of conscience"; and (v) a conspiracy between the GIO and Carruthers either by unlawful acts or by lawful acts with the intention or "predominant purpose of harming the [Marshalls'] legitimate financial interests". These allegations are repeated and slightly expanded upon at [103] to [107] of the FASOC. 222None of these allegations has any substance. In relation to (iii), for the reasons already noted and as was eventually conceded on behalf of the Marshalls, Mr Prescott's fiduciary duty to them did not survive the termination of the retainer. In relation to (i), there was no attempt made to substantiate the existence of any express or implied term to the effect contended for that somehow survived the termination of Mr Prescott's retainer. As noted, in Kallinicos Brereton J found that the contractual duty of loyalty did not survive the termination of the retainer. 223Similarly, in relation to (ii) Mr Bevan's initial submissions of 15 August 2013 (at [123] to [125]) simply asserted the existence of a duty of care and did not attempt to differentiate between the period during and after the termination of the retainer. It articulated the duty in terms that reflect a fiduciary duty, namely to "promote and protect only the interests of the [Marshalls] in connection with the Pennsylvania proceedings". A duty of care expressed in those terms can never arise (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [49] per Gummow J). Hence the original misconception about the effect of the decision in Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; 48 NSWLR 1 informs this aspect of the Marshalls' claim. In any event, in respect of the period after the breach of the retainer and, in the absence of any properly developed argument, I do not accept that Mr Prescott owed Mrs Marshall a duty of care given that he was at that time retained to act on behalf of Ms Carruthers. To impose a duty of care on Mr Prescott in those circumstances would be inconsistent with his duty to Ms Carruthers. (It may be that Mr Prescott was in breach of the duty of care he owed Ms Carruthers if he was impeded in acting on her behalf for any reason of any obligation of confidence he owed Mrs Marshall: see Spector v Ageda [1973] Ch 30. However that is irrelevant for present purposes.) 224In relation to the claimed breach of an obligation of confidence, I have already addressed in detail the alleged confidential information that Mr Prescott is said to have misused in the period after the termination of his retainer. It has not been established that Mr Prescott misused any confidential information exclusive to the Marshalls in the period up to his ceasing to act on behalf of Ms Carruthers in the Marshall proceedings. 225The conspiracy allegation also fails. It follows from the above that the acts of Mr Prescott in procuring funding were not "unlawful". Most significantly there is not a scintilla of evidence that either the GIO or Ms Carruthers agreed with Mr Prescott or anyone else to commit any "unlawful acts". 226In relation to the allegation of a conspiracy by lawful means, as noted, it is necessary to establish a predominant purpose to harm the Marshalls' interests (Crofter). In the plaintiffs' written submissions in reply dated 19 August 2013 at [15], Mr Bevan sought to address this as follows: "In reply to [the defendant's written submissions dated 15 August 2013 at [47]], the evidence of the intention to harm the interests of the Marshalls is the conduct taken to secure an entitlement to the fund for Carruthers without any real insight whatsoever into the Pennsylvania law which was later relied on to support it. A reckless disregard for the rights of one client to disadvantage another client is evidence of intention to harm the second client because there is no bona fide belief held as to the prosecution of any legitimate rights of the first client which are said to compete with the latter client's rights." 227This submission was directed to a period after the termination of Mr Prescott's retainer with Mrs Marshall so that the suggestion he had two clients is ill founded. Otherwise I do not accept that Mr Prescott had anything other than a bona fide belief that Ms Carruthers had an arguable claim. Mr Prescott, Ms Carruthers and the GIO acted to further her and the GIO's legitimate interests which suffices to defeat the allegation of a conspiracy by lawful means (Crofter supra). Generally, the proposition that a solicitor who procures funding for their client thereby enters into a tortious conspiracy with their client and their funder to harm the other party to litigation is simply bizarre. 228I reject so much of Mrs Marshall's case that alleges that Mr Prescott is liable to her because he engaged in the Prescott's first, second, third and fourth GIO misconduct. The (so called) Prescott's Third Marshall Misconduct 229This alleged misconduct was defined in [79] of the FASOC as follows: "Although he ceased to act for Carruthers in the Carruthers proceeding in the formal sense, Prescott continued to act for her informally by seeking information on Pennsylvania law to support her defence and cross-claim in the Carruthers proceeding and did so in breach of his obligation of confidence to the [Marshalls], in breach of his fiduciary duty to the [Marshalls], in breach of his contractual duties to the [Marshalls] and in breach of his tortious duties to the [Marshalls] under the terms of the Prescott retainer (Prescott's third Marshall misconduct)." (emboldened emphasis in original; italicised emphasis added) 230There is no doubt that from the period of the cessation of his retainer by Ms Carruthers in June 2005 until he was injuncted in November 2005 Mr Prescott continued to assist Ms Carruthers in her defence of Mrs Marshall's proceedings. However this allegation is more narrowly focused and only concerns his conduct in "informally ... seeking information on Pennsylvania law". 231Paragraphs 80 and 103 to 107 make the same allegations in respect of this so called misconduct as I have noted in [221] above in relation to the Prescotts second Marshall misconduct. 232The findings I have made in relation to the allegations of breach of fiduciary duty, negligence and breach of the retainer at [222] to [223] apply with equal force to Prescott's third Marshall misconduct. 233Sub-paragraph 80(d) of the FASOC alleges that the Prescott's third Marshall misconduct "constituted ... a breach of the fiduciary duty he owed to the plaintiffs and the obligation to keep confidential the information he had obtained during his retainer from them". Paragraph 106(a) is in similar terms. In the discussion at [163] to [192] I rejected the suggestion that Mr Prescott misused any information exclusively confidential to the Marshalls, save that I observed that prima facie he appears to have misused the information that was passed on to him by Mr Greenwell, as referred to in Mr Prescott's letter of 11 August 2005 ([179]). 234However, I decline to make any finding to that effect because no such allegation is raised by the pleaded case. The pleaded case in this respect is confined to an abuse of information acquired during the course of Mr Prescott's retainer with the Marshalls of which this is not. It also only alleges a breach of the obligation of confidence by Mr Prescott in "seeking information on Pennsylvania law". There is nothing to suggest that Mr Prescott used any of the information he obtained from Mr Greenwell for that purpose. 235This may appear to involve an overly strict approach to the pleaded case. However it is necessitated by the observations at [193] to [194] and the course of the submissions on this topic which I traced at [143] to [149]. The Marshalls only identified the confidential material with precision in their final written submissions in reply dated 9 October 2013 and in doing so implicitly suggested that its deployment involved a misuse. This course precluded Mr Prescott from having a proper opportunity to consider whether what was finally alleged against him was consistent with the FASOC. In those circumstances no departure from the pleaded case should be permitted. 236The conspiracy allegations in respect of Prescott's third Marshall misconduct fail for the same reasons they did in relation to Prescott's first, second, third and fourth GIO misconduct. The (so called) Prescott's Fourth Marshall misconduct 237I have already addressed this at [197] above. Mr Prescott's estoppel defences 238Only Mrs Marshall was a party to the Prescott proceedings and the Marshall proceedings. Thus, to the extent that recovery was sought in these proceedings of the solicitor/client component cost of those proceedings, then only Mrs Marshall can recover them. Kim Marshall's rights of recovery are limited to the claim for exemplary and punitive damages. 239Mr Kelly SC contended that, even if Mrs Marshall established a cause of action against Mr Prescott, she was not able to recover the solicitor/client component of her costs in the Prescott proceedings and the Marshall proceedings. He contended that the issue of the costs of those proceedings has already been determined by the costs orders that were made in each of those proceedings. For the reasons that follow I accept Mr Kelly SC's contention so far as it concerns the solicitor/client component of the Prescott proceedings, but reject it so far as it concerns the solicitor/client component of the Marshall proceedings. 240At the outset Mr Bevan contended that Mr Prescott "waived" his right to rely on these defences because it was said they had been withdrawn in January 2011 and only reinstated this year following an application by Mr Prescott to amend his defence (Marshall v Prescott (No 4) [2013] NSWSC 455) (plaintiffs' written submissions dated 15 August 2013 at [143]). He pointed to the cost and disbursements incurred in the meantime as well the "stress" of the litigation occasioned in the interim when there was no risk of these defences being upheld. Although the submission referred to the defences being "waived", the footnote to the submission referred to numerous passages from Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 which discuss both estoppel and waiver. Other than the incurring of costs which can be addressed if necessary, the balance of the claimed detrimental reliance was not the subject of any evidence so that no question of any estoppel sufficient to preclude these defences being relied on even arises. As for waiver, only Toohey and Gaudron JJ in Verwayen found that there was some form of "waiver" that precluded the Commonwealth's reliance on the limitation defence. Further, Gaudron J did so in the context of "deliberate action or inaction which has resulted in a changed relationship to which the parties will be held whether or not detriment is actually established" (Verwayen at 485). This has no relevance to this case and thus the particular form of waiver found in Verwayen by their Honours has no application here. 241In relation to the solicitor/client costs of the Prescott proceedings, Mr Kelly SC pointed to a stream of judicial statements that precludes one party from recovering further costs from another in a separate action where there was a judicial pronouncement of the parties' respective costs entitlements in a previous proceedings (defendant's written submissions dated 15 August 2013 at [144] to [150]). Thus in Anderson v Bowles [1951] HCA 61; 84 CLR 310, Dixon, Williams, Fullagar and Kitto JJ stated at 323: "It is a general rule that where it is sought to include costs incurred in other proceedings in the damages arising upon a cause of action, costs shall not be included, if as a matter of judicial determination or by a positive rule of law they are treated as costs which should be borne by the party suing. Accordingly it is not possible to recover as part of such damages the difference between party and party costs awarded to the plaintiff in the original litigation and the costs as between solicitor and client which he has incurred: Barnett v. Eccles Corporation (1900) 2 QB 423, at p 428. Further, if costs are expressly withheld by the court in the original proceeding none can be recovered in the action for damages brought by the plaintiff from whom they were so withheld." 242This passage does not specify the precise basis for this "general rule". At least in cases involving a previous "judicial determination" it seems that it is a form of res judicata in that the entitlements of the parties in respect of costs merge in the order that is made. In cases where the "rule of law" precluding recovery is a statute then presumably the general rule derives from an ascertainment of a statutory intention that the legislation deals exhaustively with the topic of costs, although it is not necessary to consider this further. 243Mr Kelly SC also referred to Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1. In Avenhouse one issue that arose on appeal was whether in proceedings in this Court against the Council for negligence the appellants could recover their costs of litigating against the Council in the Land and Environment Court at the conclusion of which there had been "no order as to costs". The Court of Appeal upheld the trial judge's refusal to allow recovery of those costs. Sheller JA, with whom Mason P and Priestley JA agreed, found (at 37) that: "[The appellants] having agreed that there should be no order for costs, they cannot, in my opinion, now seek to go behind that agreement by claiming the costs as damages in the present proceedings." Of precise relevance to this case, Sheller JA noted (at 36) that: "Had [the appellants] obtained an order for costs in the Land and Environment Court, principle would suggest that they could not recover in the present proceedings the difference between the costs assessed and the actual costs or expenses they incurred." 244Sheller JA did not refer to Anderson in his judgment. Presumably this is so because his Honour treated "no order as to costs" as only an agreement between the parties that precluded later recovery and not as a "judicial determination or ... positive rule of law" as referred to in Anderson. 245Mr Bevan contended that there is an exception to the "general rule" stated in Anderson as expressed in the following passages from McGregor on Damages, 17th Ed (2003) at 632: "More difficult are the cases where the now claimant claims that a separate tort was involved in instigating, assisting or causing the previous proceedings and sues for damages for that tort. Such torts could be malicious prosecution, false imprisonment or conspiracy. If the now claimant is thus capable of establishing a separate cause of action, it may be that he has found a sufficient peg upon which to claim as damages costs incurred by him in the earlier proceeding. Devlin L.J. in Berry v British Transport Commission [footnote: [1962] 1 Q.B. 306] certainly thought this should be so. He said: 'I find it difficult to see why the law should not now recognise one standard of costs as between litigants and another when those costs form a legitimate item of damage in a separate cause of action flowing from an additional wrong.' (emphasis added) ... (c) Conspiracy. Conspiracy is another tort which might be held to arise from instigating, assisting or causing the previous proceedings. This would be analogous to malicious prosecution but would also require an agreement between two parties to bring or defend the previous proceedings: it might however be wider in that, for instance, it could, unlike malicious prosecution under the present law, apply to all civil actions. On principle there is no reason why the now claimant should not recover as damages costs incurred by him in the previous proceedings. In Hathaway v Barrow [footnote: (1807) 1 Camp. 151] the now defendants had unsuccessfully brought a petition against the now claimant and costs had been awarded against them. The now claimant claimed to recover as damages the costs he had incurred above those awarded, but the court refused their recovery, Sir James Mansfield saying that those already awarded 'must be considered as satisfaction'. This, however, is the only case and it is a decision of 1807, which was long before the general principles were worked out by the courts; moreover, it is at odds with the general view of Devlin L.J. already referred to. [footnote: In Berry v British Transport Commission [1962] 1 Q.B. 306, CA at 322. See para. 17-005, above]" 246Mr Bevan contended that Mrs Marshall falls within this exception as she sues in conspiracy (plaintiffs' written submissions dated 15 August 2013 at [165]). I reject this contention for two separate reasons. 247First, at this point I am dealing with Mrs Marshall's claim for the solicitor/ client costs of the Prescott proceedings. Mrs Marshall does not allege that any "separate tort" on the part of Mr Prescott was "involved in the instigat[ion], assisting or causing" of those proceedings, as opposed to Ms Carruthers' defence of the Marshall proceedings. Thus, even if the first passage from McGregor on Damages was to be read as a definitive statement of an exception to the general rule stated in Anderson and the words "will be" were substituted for "may", it does not assist Mrs Marshall's claim to recover the solicitor/client costs component of the Prescott proceedings. 248Second, I do not accept that the exception alluded to in the passage from McGregor on Damages operates in circumstances where there has been a previous order addressing costs by a Court with full power to award them. In Avenhouse at 35 Sheller JA noted this possible exception as stated in earlier edition of McGregor on Damages, and then discussed various cases that bore upon the existence of the exception (namely Berry; Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 and Jack L. Israel Ltd v Ocean Dynamic Lines SA & Ocean Victory Ltd [1982] 2 Lloyd's Rep 88). His Honour then referred to Hanrahan v Ainsworth (1985) 1 NSWLR 370 in which a plaintiff claimed damages for the defendant's alleged abuse of legal process by instituting defamation proceedings and sought to recover costs incurred as a result of those defamation proceedings. 249In Hanrahan at 375 Hunt J stated: "The first defendant objects that the actual temporal loss upon which the plaintiff relies in the present case (the expenses which he incurred in travelling to see his legal advisers) cannot be recovered in these proceedings. Those expenses, he says, are costs properly recoverable in the earlier defamation action, and only in that action. The expenses necessarily incurred in defending criminal proceedings are recoverable in a subsequent action for damages for malicious prosecution: Savile v Roberts (1698) 1 Ld Raym 374 at 378; 91 ER 1147 at 1150. But, where the action for malicious prosecution is based upon a civil action and not upon criminal proceedings, those costs are recoverable in the earlier action, and not in the action for malicious prosecution: Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 at 690. This is because the successful party in civil proceedings (but not in criminal proceedings) is - so the theory goes - compensated in those proceedings by an order for costs, and the law does not permit that successful party's entitlement to costs in the earlier civil proceedings to be litigated a second time in the claim for damages for malicious prosecution: Berry v British Transport Commission [1962] 1 QB 306 at 320; Coleman v Buckingham's Ltd [1963] SR (NSW) 171 at 176, 177-178; 80 WN 593 at 596-597, 598. The first defendant's argument does not, however, take into account the fundamental differences between an action for damages for abuse of process and an action for damages for malicious prosecution. (Those differences are also recognized in Coleman v Buckingham's Ltd (at 179; 599).) The difference principally relevant here is the need in the action for malicious prosecution, but not in the action for abuse of process, for the plaintiff to plead and to prove that the earlier proceedings have terminated in his favour. Thus there is not in the action for abuse of process (as there is in the action for malicious prosecution) necessarily an adjudication in the earlier proceedings in relation to the present plaintiff's entitlement to costs. If the earlier proceedings had terminated in favour of the present plaintiff, then his expenses would have been recoverable in those proceedings and they would not support his subsequent action for abuse of process. But, where those earlier proceedings have not so terminated in favour of the present plaintiff, I see no reason why his expenses in relation to those proceedings should not validly support his present claim." (emphasis added) 250In Avenhouse at 36 Sheller JA specifically cited the latter part of this passage but I take his Honour as having endorsed the entirety of Hunt J's analysis. Hunt J's analysis was such that it precluded recovery in the latter proceedings of solicitor/client costs in earlier (civil) proceedings where there was an "adjudication in the earlier proceedings" as to costs. There was no such adjudication in Hanrahan but there was in this case. I take Sheller JA (with whom Mason P and Priestley JA agreed) in Avenhouse as having endorsed Hunt J's analysis in Hanrahan which confines the operation of any exception of the kind identified in McGregor on Damages in the manner I have stated at [248]. 251Otherwise it should be noted that this analysis is only apposite to the circumstance where the earlier proceedings were conducted in a court exercising a civil jurisdiction with full powers to award costs on a variety of bases and in respect of a range of circumstances. Since Hanrahan and even Avenhouse the powers of this Court hearing civil proceedings to award costs have only expanded so that the rationale for these decisions is even more appropriate now than it ever was. However the power to award costs in, say, criminal proceedings is more limited. Thus a different approach has been adopted where the earlier proceedings involve a criminal prosecution (see Berry at 317, 323 to 332 and 336 to 339). 252Mr Kelly SC sought to apply the same analysis to Mrs Marshall's claim to recover the solicitor/client costs component of the Marshall proceedings. Mr Bevan contended that the authorities relied upon by Mr Kelly SC and noted above have no application where the earlier proceedings were not between the same parties. He contended that, as a matter of principle, there was no difficulty with a party recovering from, say, their solicitor all the costs they incurred in other proceedings against a different party, provided that the usual preconditions for recovery such as causation and remoteness, etc, are satisfied. I agree (see Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156 at [13] to [17], and cases cited at [14], per Macfarlan JA with whom Sackville AJA agreed). 253Mr Kelly SC sought to rely on an Anshun estoppel as precluding recovery by Mrs Marshall of the solicitor/client costs in the Marshall proceedings. As I understand this contention it concerns Mrs Marshall's alleged failure to either seek a solicitor/client costs order against Ms Carruthers in the Marshall proceedings or to make such an application against Mr Prescott in the Marshall proceedings, presumably under ss 98 and 99 of the Civil Procedure Act 2005. It is not necessary to address all the potential difficulties with this contention because it suffices to state that I am not satisfied that it was "unreasonable" for Mrs Marshall not to have made any such application (Anshun at 602 per Gibbs CJ, Mason and Aickin JJ). To have done so would have put at risk the favourable settlement she had negotiated with Ms Carruthers. Moreover I consider that a litigant in her position was entitled to take stock and consider the financial effect of all the costs orders and costs she had incurred before deciding to embark upon further litigation. Proportionate liability 254Mr Prescott's defence pleaded that Mrs Marshall's and Kim Marshall's claim was an apportionable claim and that there were concurrent wrongdoers, namely Mr Greenwell and Kreindlers. No submissions were advanced in support of the defence. In view of my findings, it is neither necessary nor possible to address it. Causation and quantum 255Various submissions were made by Mr Kelly SC concerning whether any conduct of Mr Prescott was causative of the solicitor/client costs claimed by Mrs Marshall. I have already addressed one matter relevant to causation in respect of the period prior to the termination of Mr Prescott's retainer to act on behalf of Mrs Marshall and Kim Marshall (at [210]). In view of my rejection of the entirety of the pleaded allegations against Mr Prescott it is not possible to address the balance of the points raised. 256In relation to quantum, I have already addressed Mr Kelly SC's submission concerning Mr Salier's assessment. Obviously, the claim for exemplary or punitive damages fails. Orders 257I will order that the proceedings be dismissed and hear the parties as to costs. 258Accordingly the Court orders that: (1)The proceedings be dismissed. ********** 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: 07 January 2014