Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2)

HIS HONOUR: In essence, the plaintiffs seek to recover a total sum of $210,000 from the defendants consequent upon the plaintiffs paying monies to the first defendant (Mr Marino) to be invested by him via a trading platform (investment proposal).

The investment proposal was formalised by the plaintiffs each entering into an asset management agreement with Mr Marino on or about 23 or 24 August 2018 (“AMA”). Other than the differing amounts invested and the different parties, both AMAs are (relevantly) in the same terms.

The legal relationship alleged as between the plaintiffs and Mr Marino is, inter alia, contractual under each AMA. Under the AMAs, the plaintiffs were nominated as “Capital Provider(s)” (capital providers) and Mr Marino was designated as an “Asset Manager” (asset manager).

As a consequence of an alleged breach of contract and guarantee by Mr Marino, the first plaintiff (Adelaide) and the second plaintiff (Mr Parrella) have not been paid the funds they had invested, being $10,000 and $200,000 respectively (together, the funds). The connection between the plaintiffs and the second defendant (Mr Polo), a solicitor, arises essentially from the assertion that Mr Marino was an employee or officeholder of the law practice “Oracle Law”, of which Mr Polo was the principal.

On the hearing, Dr Baron Levi of counsel appeared for the plaintiffs. Mr Marino did not appear per se to contest the hearing (though, as I note below, he was subpoenaed to give evidence by the plaintiffs). Mr Jamieson of counsel appeared for Mr Polo. In that context, the active parties in the proceedings were the plaintiffs and Mr Polo (active parties).

Dr Baron Levi and Mr Jamieson each provided a written outline of submissions prior to the hearing and made oral final submissions following the completion of evidence in the hearing. I will cite the evidence in the proceedings by reference to the Court Book (CB), transcript pages and exhibit numbers, and cite the submissions by reference to Dr Baron Levi’s opening written submissions dated 4 August 2023 (POS), Mr Jamieson’s opening written submissions dated 24 July 2023 (D2OS1) and 3 August 2023 (D2OS2), and transcript pages.

Adelaide was registered in South Australia on 25 July 1997: CB 2379. Sergio Pacifico (Mr Pacifico) was appointed as a director and secretary of Adelaide on 28 February 2001. He is the sole director and shareholder of Adelaide: CB 2380, 2382. Adelaide was, at least in the early to mid-2000s, engaged in concrete polishing: CB 138[11].

Mr Parrella is the owner and “managing director” of a business called Magill Motor Bodies (Magill): CB 182[3]; T 114.21-.26. Magill is an approved crash repairer providing crash repair, panel beating and spray-painting services: CB 182[4].

Mr Marino goes by a number of names, including “Francesco Marino” and “Frank Marino”, and is bankrupt: CB 2525. Mr Marino held a real estate agent’s licence seemingly from 14 October 2009. The licence, which is a “Class 2 Agent – Real Estate – Sales or Leasing” licence, was renewed on 23 March 2020 (until 13 October 2024): CB 2510. He has associations with various companies, including being the sole director, secretary and member of Crystal Blue Group Pty Ltd (CBG), Just Investment Properties Pty Ltd, Urban Wealth Capital Pty Ltd and Urban Wealth Group Pty Ltd: CB 178[225]-[228]. Other entities with which Mr Marino was associated are listed in his application for bankruptcy: CB 2525. There is an issue in the proceedings regarding the precise nature and extent of Mr Marino’s association with Mr Polo and Oracle Law.

In his work in real estate, Mr Marino operated through CBG. An extract from CBG’s website does not give any real clarity about precisely what CBG is, or what it does. The description on the website is framed in vague terms (CB 180[238], 2488-2491):

Mr Marino had some association with Akhilesh Kamkolkar (Mr Kamkolkar), a person whose precise role in the events the subject of the proceedings is unclear. From the plaintiffs’ perspective, his existence was first alluded to by Mr Marino in discussions with Mr Pacifico in early 2018, in connection with trading platforms, as being “my Indian friend who has been in share markets and banking industry for years”: CB 155[110]. He was copied into an email by which Mr Marino provided Mr Pacifico with the AMA: CB 1595.

Mr Polo was admitted to practice as a solicitor in New South Wales on 12 July 2002: CB 2484. He commenced practice in New South Wales under the name Polo & Co Solicitors: CB 205[2], [8]. In about 2013, upon deciding to move his practice to Queensland, Mr Polo changed his practice name to “Oracle Law”: CB 205[3]; T 139.50-140.2.

Mr Polo is the principal of Oracle Law, which was at the relevant times registered with the Law Society of New South Wales as having its “main office” at Horsley Park, New South Wales and an associated “branch office” at Mermaid Beach, Queensland: CB 179[230] (and based on the Law Society search documents as at 24-26 January 2022: CB 2456, 2463, 2470, 2484). Oracle Law is described as, and according to Mr Polo has always been, a sole practitioner law firm: CB 2470; T 139.42-.44.

Oracle Law also operated as a legal practice in Queensland until 30 June 2019: see CB 4[6(d)] read with CB 54[4] (see also a Queensland Law Society search document as at 24 January 2022: CB 2448-2451).

It was accepted by Mr Jamieson that Mr Polo was admitted in New South Wales and has a current practising certificate from the Law Society of New South Wales: CB 2477. He was not admitted in Queensland: T 34.35-35.4; CB 2487.

The plaintiffs claim that Mr Marino represented himself to be a solicitor and owner of Oracle Law and that, in any event, Mr Marino was an employee or officeholder of Oracle Law. Mr Marino was not at any material time entitled to engage in legal practice in any Australian jurisdiction (which was admitted in his defence).

The plaintiffs allege that they entered into the agreements in reliance upon representations made by Mr Marino regarding investment opportunities. Apart from the principal claims for breach of contract and the guarantees, there are alternative claims against Mr Marino for damages said to arise under four alternative heads, being: (a) for breach of fiduciary duties or misrepresentation; (b) pursuant to s 1041I(1) of the Corporations Act 2001 (Cth) (Corporations Act); (c) pursuant to s 236 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (ACL); and (d) for negligence: CB 3.

As against Mr Polo, the principal ground for relief is for compensation in respect of the losses that the plaintiffs have suffered (i.e. the funds), based on the Court’s inherent jurisdiction “in relation to the control and discipline of solicitors”. There are also alternative claims, for substantially the same relief, on the basis of negligence and pursuant to s 236 of the ACL: CB 3.

In a number of respects, the legal bases for the plaintiffs’ claims for relief against Mr Polo are more complex than what I have just indicated from the relief claimed under their amended statement of claim. I will refer to this more below.

The proceedings were commenced by a statement of claim filed on 14 October 2020. On 27 November 2020, John Coorey (a solicitor at Sparke Helmore) filed a notice of appearance for both defendants. On 25 March 2021, Mr Polo filed a notice of change of solicitor appointing himself as his solicitor on record and, on 1 April 2021, Mr Coorey filed a notice of ceasing to act in respect of Mr Marino. The reasons for the filing of those notices were not the subject of evidence, but it is at least explicable on the basis of a potential conflict in Mr Coorey acting for both defendants. On 26 March 2021, a defence was filed on behalf of Mr Polo. On 21 April 2021, Mr Marino filed a defence on his own behalf. Both defences relevantly disputed the plaintiffs’ claims.

On 24 November 2021, the plaintiffs filed an amended statement of claim which made a number of amendments to the initial pleading. However, the substance of the claims remained the same. On 1 and 9 December 2021, Mr Marino and Mr Polo respectively filed amended defences.

Further on 9 December 2021, Mr Polo filed a cross-claim against LawCover and Mr Marino which sought contribution or indemnity for any verdict in the plaintiffs’ claims against Mr Polo. I was informed by Mr Jamieson on the hearing that the cross-claim against LawCover had been discontinued: T 21-22.

The cross-claim against Mr Marino was predicated on the basis that Mr Marino had used the email address of Oracle Law when corresponding with the plaintiffs about the AMAs and investment opportunities without informing Mr Polo and without his permission. On 22 December 2021, Mr Marino filed a defence to the cross-claim.

On 22 June 2022, Mr Marino became bankrupt, having filed a debtor’s petition which was accepted by the Australian Financial Security Authority: CB 2525-2526. On 7 December 2022, following an application by the plaintiffs in the Federal Court of Australia, Katzmann J granted leave to the plaintiffs pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to continue these proceedings against Mr Marino: Parrella v Trustee of the Property of Marino (Bankrupt) [2022] FCA 1530.

Pursuant to pre-trial directions, the active parties prepared a list of agreed issues in dispute. While the list (CB 126-131) contained 37 numbered issues, many of those issues contained sub-issues such that there were in effect over 50 listed issues.

At the outset of the hearing, I made a subdued remark that there seemed to be quite a number of issues and that it would assist me if counsel could revisit the list of issues and seek to refine what they contended I specifically needed to address. Dr Baron Levi accepted what I had observed about the list being long, acknowledged that the list was perhaps not particularly well-ordered and indicated that counsel could attend to refining the list: T 22.19-.26.

Ultimately, there was no refinement of the list. In any event, final submissions were not made by any express reference to the list.

The drafting of the issues was not ideal. I note that some of the issues raised matters which were not litigated and irrelevant (e.g. issue 1(e) – whether Mr Marino had represented that he “had become very wealthy as a result of success in these types of trades”; issue 9 – “[t]he part played by persons associated with operations at Southport as distinct from [Mr Polo’s] office address”; and issue 31 – “[t]he financial advantage to [Mr Polo] from the investments if any”). Other issues were drafted as generalised statements without reference to how they connected to any essential element of the claims (e.g. issue 10 – “[t]he investigations carried out by the Plaintiffs as to all relevant parties”).

The purpose of the Court making directions which require parties to agree on real issues in dispute is to assist the Court to be able to readily focus upon critical factual or legal issues to facilitate the just, quick and cheap disposition of the litigation.

In some cases, it may be that the issues can be simply stated (for example, in the form of questions) having regard to the pleadings or the nature of the claims of which the relief is based. However, where a number of complex claims are pleaded, the Court expects the parties, and in particular the legal practitioners, to engage with one another by conferring or otherwise and to give genuine and considered thought to the framing of issues and some suggestion as to an appropriate order based on some meaningful structure, whether it be logical or otherwise. In any case, the essential elements of the action (whether common law, equity or statute based) and any defence should be examined by the parties preparing the list of issues to ensure that the issues, whether factual or legal, are framed having regard to those essential elements so that the case is litigated on a proper footing.

If one or more particular issues are likely to be determinative of the outcome of the proceedings in such a way as to make other issues unnecessary to determine, the Court expects the parties to identify those determinative issues. The direction for agreement is intended not merely to assist the Court, but also the parties themselves, to focus on what is forensically important in the litigation.

In this case, as will be evident below, the failure of the parties to identify essential elements of causes of action in the pleadings or list of issues, and the inclusion in the list of issues of irrelevant matters, has left the Court in an invidious position in addressing the claims without the sort of assistance in submissions that would ordinarily be expected for litigation in this Court.

In the POS, Dr Baron Levi addressed the plaintiffs’ claims against Mr Marino with some more clarity, essentially under the following heads:

I will address the claims as such.

The pleadings and agreed list of issues in the proceedings left much to be desired in clarifying critical aspects of the alleged liability of Mr Polo.

The plaintiffs’ amended statement of claim did not contain headings of the actions sought to underpin the relief claimed against Mr Polo. However, by reference to the pleading against Mr Polo (CB 23[56]-26[63]) and the POS, four claims for relief were identified. Two of the four claims for relief appeared to be based upon, or in reference to, the fact that Mr Polo was a solicitor. Indeed, the principal claim for relief relied upon by the plaintiffs against Mr Polo was in relation to the Court’s supervisory jurisdiction over solicitors.

Notwithstanding that, the basal relationship between Mr Polo and the plaintiffs was not clearly pleaded.

Significantly, the plaintiffs did not plead that they had a retainer with Mr Polo or Oracle Law.

The plaintiffs pleaded that Mr Marino was at all material times an employee or officeholder of Oracle Law: CB 5[9]. However, the pleading contained no material facts or particulars said to give rise to an employment relationship. Rather, there was only the bald assertion of employment. Mr Marino denied that allegation, as did Mr Polo.

Further, whilst the plaintiffs pleaded that Mr Polo owed a duty of care to “clients and prospective clients of Oracle Law”, the pleading contained no material facts or particulars said to give rise to the duty of care: CB 26[63]. The allegation of a duty of care was denied by Mr Polo: CB 59[35]. (I note the amended defence appears to contain a typographical error in that there are two paragraphs which plead to paragraph 62 of the amended statement of claim, namely CB 58[34] and 59[35]. However, as a matter of construction, it appears obvious that the second paragraph of the amended defence, CB 59[35], is a pleading to CB 26[63].)

Cryptically (in the absence of any pleaded retainer), the list of issues contained an issue (numbered 23) in the following terms:

In identifying the second ground for relief against Mr Polo, the POS contains in the chapeau to POS [65] the following statement:

There were only two references to “retainer” made during the hearing. Both were contained in answers given by Mr Polo in relation to the termination of his retainer with Hugh Mackay (Mr Mackay), a friend and associate of Mr Pacifico, and/or with Mr Mackay’s company, Mackay Ellis Group Pty Ltd (MEG): T 398.26, 403.7. There was no mention of a retainer as between the plaintiffs and Mr Polo or Oracle Law in any evidence. Nor did the oral closing submissions of Dr Baron Levi assert any retainer as between the plaintiffs and Mr Polo or Oracle Law. If any retainer was assumed by Dr Baron Levi, he did not explain how it arose and relevantly at what point it subsisted.

Thus, in the above context, the advancement of the plaintiffs’ claims against Mr Polo begged the question of whether the plaintiffs actually contended that they were clients of Mr Polo and/or Oracle Law and, if so, the precise nature and duration of any retainer. However, any such initial foment was suppressed during the hearing, which left the question unattended and accordingly any answer to it unilluminated.

Whilst the plaintiffs pleaded that Mr Marino was an employee of Oracle Law, they did not plead that Mr Marino was Mr Polo’s agent.

In the POS, Dr Baron Levi described the claims for relief against Mr Polo as follows (POS [63]-[67]):

I will address the claims as such.

Despite the unsatisfactory way in which the issue regarding whether the plaintiffs were clients of Oracle Law or Mr Polo was presented, in case it be said that the issue was a live issue, I propose to address it below.

In addition to the appearances of Dr Baron Levi for the plaintiffs and Mr Jamieson for Mr Polo, during the hearing of this matter:

Mr Wengel provided a report regarding Mr Marino’s estate which was marked as MFI-1.

In interlocutory stages of the proceedings, Mr Marino, by notice of motion filed on 19 May 2021, sought an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that these proceedings be transferred to the Supreme Court of Queensland on the ground that it is in the interest of justice to do so. The notice of motion was dismissed by Henry J: see Adelaide Concrete Cutting & Drilling Pty Ltd v Marino [2021] NSWSC 1034.

In Mr Marino’s amended defence, he objected to the jurisdiction of this Court to determine the proceedings on the basis that cl 11.1 of the AMAs vests jurisdiction to determine all disputes arising pursuant to the AMAs in the courts of Queensland: CB 34[1], 35[2]. Although Mr Marino did not appear on the hearing to propound his defence, it is nonetheless appropriate to address the matter.

The relevant clause in the AMA is not cl 11.1 but in fact cl 12.1, which is in the following terms:

The AMA only provides for a “non-exclusive” jurisdiction of the courts of Queensland. I am satisfied that the Court has jurisdiction to deal with the claims regarding the AMA.

Dr Baron Levi also submitted that it is well-settled that the jurisdiction of the courts cannot be ousted by an agreement of the parties, citing TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5 at [76] per Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ: POS [62]. However, there is no need for me to comment on that submission.

On the first morning of the hearing, Dr Baron Levi requested that I issue an arrest warrant for Mr Marino for failure to comply with a subpoena to attend and give evidence. Mr Marino was thought at the time to be resident in Queensland.

Having been satisfied of due service of the subpoena, I issued the arrest warrant. It took several days for the warrant to be executed. On the morning of the fourth day of the hearing, the Court was informed that Mr Marino had been arrested overnight. At midday on the fourth day, my Associate received contact from Mr Senior, who had been contacted by Mr Marino following his arrest and attended upon him at the Southport watchhouse. Mr Senior appeared for Mr Marino at Southport Courthouse on the morning of the fourth day of the hearing, where Mr Marino consented to an extradition order. He was released into the custody of police and was transported to Sydney: T 286-287. He attended that afternoon and was examined by Dr Baron Levi, who questioned Mr Marino and thereby adduced evidence from him in the plaintiffs’ case.

Early on the morning of the first day of the hearing, I raised with counsel the fact that Mr Marino had filed a defence but was absent from court. I noted that the provisions of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 29.7 applied in such a circumstance: T 5. Mr Jamieson noted that Mr Marino had written to the plaintiffs’ solicitors quite some time ago and indicated clearly that he did not wish to take any part in these proceedings: T 6.9-.10.

UCPR r 29.7 is relevantly in the following terms:

UCPR r 29.7 addresses the procedure to be followed when a “trial” is called on and a party is absent. A “trial” means any hearing that is not an interlocutory hearing: s 3 Civil Procedure Act 2005 (NSW) (CPA).

A party fails to appear, for the purpose of the present rule, if they have adequate notice of the hearing, and fail either to attend (personally or by a representative) or to provide the Court with an apparently credible explanation for their non-attendance: Ritchie’s Uniform Civil Procedure NSW at [29.7.2], citing Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22], NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681; (2012) 18 BPR 35,153 (Gregory) and Hill v Dunn [2019] NSWSC 419 at [8]-[21].

In Gregory, Hallen AsJ (as his Honour then was) observed that a party will not be found to be “absent” within the meaning of r 29.7 unless that party has knowledge or notice of the date of the trial: Gregory at [18]-[22]. However, in Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333, whilst accepting that natural justice must be observed, Peden J at [16] respectfully disagreed that UCPR r 29.7 requires a plaintiff to notify a defendant of the date of the trial in order for the defendant to be “absent” and the hearing to proceed.

In this case, it is not necessary to embark upon that debate. Mr Marino was aware that the matter had been listed for hearing. He had been served with a subpoena and ultimately (as I note below) attended before the Court as a witness, following the issue of a warrant for his arrest pursuant to failure to comply with the subpoena.

When Mr Marino attended court on the afternoon of the fourth day of the hearing, Mr Senior attended by AVL and confirmed that he was representing Mr Marino in respect of the subpoena and the arrest warrant. Mr Senior further confirmed that this was his only involvement in the proceedings and otherwise Mr Marino was unrepresented in the proceedings.

The relevant part of the transcript was as follows (T 304.4-.28):

In light of the above exchange, it was clear that Mr Marino had elected not to attend the hearing in the capacity of a party. Nonetheless, he was clearly aware of the fact that the hearing was proceeding against him. Mr Marino’s attendance on the fourth day (and at the time of the resumed hearing) was as a witness only, and without any attempt to appear as a party.

On the hearing, the plaintiffs relied upon affidavits of Mr Pacifico, Mr Parrella and Sabatino Parrella (Sabatino), Mr Parrella’s brother. There were exhibits to each of the affidavits of Mr Pacifico and Mr Parrella which were included in the Court Book materials.

Mr Polo read and relied upon an affidavit of himself.

Each of the deponents of the affidavits was cross-examined.

Mr Jamieson suggested, prior to cross-examination, that there would be an issue of credit in relation to Mr Pacifico. It appeared that the gist of what Mr Jamieson wished to challenge in this regard was that the plaintiffs were induced into making the investment without making proper enquiries: T 72.1-.20.

Mr Pacifico gave his evidence in a straightforward way. He stated many times that he was not good with recalling dates: e.g. T 77.24, 79.15, 88.24-.25, 88.44-.49, 95.49-.50, 103.33. However, he did indicate that he remembered the “facts” (or rather, in context, the events): T 88.49-.50. On one occasion Mr Pacifico could not remember what had been said in his affidavit: T 87.9-.13.

Whilst Mr Pacifico was not particularly reliable in terms of dates on the whole, I find that he attempted tell the truth to the best of his recollection. I deal more particularly with his evidence below.

Mr Jamieson submitted that Mr Parrella’s evidence was at times confused: T 442. Specifically, Mr Jamieson submitted that (T 442.21-.26):

However, there is nothing in Mr Parrella’s evidence suggestive that he had actually spoken with Mr Kamkolkar nor that Mr Kamkolkar (or Mr Marino) were working in the office premises. Mr Parrella’s evidence in his affidavit in chief was merely (CB 188[45]):

Properly construed, all that Mr Parrella’s evidence conveyed is that he believed or assumed Mr Kamkolkar was “someone who worked with” Mr Marino.

Mr Parrella gave his evidence in a straightforward way. I did not detect that there was any serious challenge to his credit, as distinct from his reliability. I find that he attempted tell the truth to the best of his recollection. I deal more particularly with his evidence below.

Sabatino was briefly cross-examined. Mr Jamieson confirmed that there was no issue with Sabatino’s credit following his cross-examination: T 70.8-.15. I accept his evidence.

As I have explained earlier, when called initially on the fourth day, Mr Marino was called as a witness rather than in his capacity as a party participating in the proceedings. A number of matters arose in the process of Mr Marino giving evidence.

First, while Dr Baron Levi initially purported to question Mr Marino in chief, I detected that certain questions strayed into a type of cross-examination and rejected a particular question: T 301. In those circumstances, Dr Baron Levi made an application pursuant to s 38 of the Evidence Act 1995 (NSW) (Evidence Act) to question Mr Marino as though he were cross-examining him, on the basis that he was an unfavourable witness. I granted leave for Dr Baron Levi to question Mr Marino in the manner contemplated by s 38 (T 302), whilst being mindful that as a matter of procedural fairness I would, if the occasion arose, retain a discretion as to how the questioning might proceed: T 314.

Secondly, in the afternoon of the fourth day, occasion arose for me to consider in accordance with s 132 of the Evidence Act whether Mr Marino may have had grounds for making an objection to questions under s 128 of the Evidence Act, and to inform Mr Marino of his right in that regard: T 306. I then drew Mr Marino’s attention to the provisions of s 128 of the Evidence Act.

A little later, following an objection by Mr Marino, an issue arose as to the extent of the privilege accorded by s 128. The issue arose in circumstances where the answer to a question may have had the tendency to incriminate Mr Marino in respect of a breach of a Queensland statutory provision or a statutory provision in respect of which proceedings may be brought against him in Queensland: T 308.17-309.9. It was not self-evident that the protection afforded under s 128(7), relating to “any proceeding in a NSW court or before any person or body authorised by law of this State”, would have extended to afford protection to Mr Marino in respect of the law of Queensland or proceedings in a Queensland court.

I indicated that I was not entirely satisfied that it would be in the interests of justice to require Mr Marino to answer the question. Having regard to the fact that the Court was about to adjourn and would need to allocate further hearing dates, the issue was not further debated at that point.

On 23 October 2023, the hearing resumed. Mr Marino attended and Mr Lucarelli of counsel sought leave to appear for Mr Marino solely for the purpose of addressing issues in respect of privilege against self-incrimination. I made a provisional ruling granting Mr Lucarelli leave to appear for such purpose, and there was some debate about the issues. For his part, Dr Baron Levi addressed some submissions as to the question of whether, in dealing with a claim for privilege, I should give a direction requiring Mr Marino to answer questions: T 316.

Mr Lucarelli and Dr Baron Levi accepted that the interstate certificate provisions of s 128(12) of the Evidence Act are not replicated in the Evidence Act 1977 (Qld): T 320-321.

The matter progressed and Mr Lucarelli, on behalf of Mr Marino, raised a claim for privilege in relation to a question put to Mr Marino as to whether he had issued invoices to Oracle Law clients on Oracle Law letterhead. Following debate, I indicated that I was not persuaded it was in the interests of justice to require Mr Marino to answer the question.

Questioning of Mr Marino proceeded and, from time to time, Mr Lucarelli claimed privilege on behalf Mr Marino, upon which I made rulings consistent with earlier rulings. Mr Marino was well presented and gave his evidence in a clear manner. Occasionally he made concessions.

As part of his closing, Dr Baron Levi submitted that, in civil proceedings, where a question is asked which relates to central issues in the proceedings on which the witness may be expected to give evidence, that an exercise of privilege against self-incrimination will permit the Court to be satisfied that inferences adverse to that party may properly be drawn, notwithstanding that there was a ground for refusal to provide evidence on that basis: T 440.3-.20. He cited the decision of Lee J in Pappas v New World Oil Developments Pty Ltd (1993) 43 FCR 594 (Pappas) at 595 for that proposition.

In Pappas, Lee J stated at 595:

Dr Baron Levi further submitted that (T 440.22-.27):

In prefacing this submission, Dr Baron Levi made it clear that he was making a submission in a context in which Mr Marino had exercised his privilege against self-incrimination: T 440.3-.4.

I do not accept Dr Baron Levi’s submission for several reasons.

First, the authorities make a distinction between the prohibition against drawing an adverse inference from a claim of privilege and drawing adverse inferences that may arise from the absence of evidence which a party or witness could be expected to give. I do not regard the comments of Lee J in Pappas as addressing the circumstances in which Dr Baron Levi was making this submission, being that Mr Marino had exercised his privilege against self-incrimination. This is made clear by the judgment of the Victorian Court of Appeal in Chong v CC Containers Pty Ltd (2015) 49 VR 402; [2015] VSCA 137 at [217]-[219].

Secondly, the submission lacked content. Dr Baron Levi did not identify particular instances of matters from which I should draw an adverse inference.

Thirdly, even if the submission were correct (which I do not accept), I doubt that it could be extended in the way that Dr Baron Levi contended; namely, that I could somehow draw an adverse inference against Mr Polo on the plaintiffs’ case of vicarious liability against him by reason of another witness, adverse to Mr Polo’s case, claiming to exercise his privilege against self-incrimination.

To the extent that there was conflict between the evidence of Mr Marino on the one hand and Mr Parrella and Mr Pacifico on the other, I accept the evidence of Mr Parrella and Mr Pacifico.

Mr Jamieson submitted that, on the important aspects of the evidence given by Mr Polo, I should accept his evidence: T 448.16-.27. My impression was that Mr Polo gave his evidence in a straightforward way, making some concessions. Nonetheless, there is some evidence of Mr Polo that I did not accept, with which I deal below.

Mr Polo become aware of Mr Marino in about late 2005 when Mr Polo was practising in New South Wales under the name Polo & Co Solicitors. The introduction came from a real estate agent who was involved with sales of properties owned by Mr Marino, his companies and associates. Mr Polo commenced providing legal services to Mr Marino, mainly in relation to conveyancing matters, at some stage after the referral: CB 205[8], [9].

Mr Polo also had social contact with Mr Marino, for example attending Mr Marino’s 40th birthday in 2009: CB 206[10]. A few years later, Mr Polo relocated to the Gold Coast and developed a friendship with Mr Marino. Mr Polo assisted Mr Marino with his business problems and his family law issues: CB 206[11]-[16].

Mr Polo was very sparse in his affidavit evidence regarding the arrangements between himself and Mr Marino for the use of an office premises at Mermaid Beach, from which Oracle Law eventually operated, as well as what working arrangement Mr Marino had in relation to Oracle Law.

Mr Polo deposed that “[o]n or about late 2014 I needed an office and Frank and I agree[d] to share office space at Mermaid Beach”: CB 206[18].

He deposed further as to his arrangement with Mr Marino as follows (CB 207[29]-[31], omitting parts rejected):

In his amended defence to the plaintiffs’ claim, Mr Marino stated that he was a close friend of Mr Polo and agreed to assist him to establish his legal practice in Queensland in or about 2013, on the basis that Mr Marino would be engaged as a “contracted Business Development Manager” for Mr Polo and would be remunerated for his services by “the provision of discounted legal services” to him by Mr Polo and by way of “payment for contract services invoiced”: CB 35-36[9].

Mr Marino further stated in his amended defence (CB 37[11(g)]):

It is worth noting, in light of the findings I make later in these reasons, that those pleadings are not binding on Mr Polo.

For reasons set out below, the actual timing for the establishment of the Oracle Law practice appears to have been in the latter half of 2012, as opposed to in either 2013 or late 2014.

In the context of Dr Baron Levi questioning Mr Polo in respect of the shared office premises with Mr Marino (T 142), I asked about Mr Marino’s association with Oracle Law and, specifically, how their connection actually arose in relation to the shared use of the office premises.

Mr Polo asserted that Mr Marino was a property developer and Mr Polo had previously assisted him with subdivisions and the sale of property, in the sense of Mr Polo being involved in contractual preparation and the lodgement of documents with the various authorities for registration. Mr Polo disputed that Mr Marino ever worked for him other than in the sense of referring matters to him: T 143.15-.24

Mr Marino was cross-examined about the statement in his amended defence at CB 35-36[9] which I have referred to above. He indicated that his arrangement with Mr Polo was one by which Mr Marino would be remunerated for his services or “in lieu for services rendered for [his] real estate business”: T 327.6-328.2. He could not recall precisely what he was referring to when he stated “payment for contract services invoiced” in his amended defence: T 328.5-.7.

On 19 September 2012, Peter Burrows, a business advisor, emailed Mr Polo and Mr Marino addressing the subject of a trading entity for legal practice: CB 706. The email addresses a number of matters and appears to contemplate that Mr Polo would be the director of a company to operate the business, and each of Mr Polo and Mr Marino would own shares in proportions to be agreed. It was contemplated that flexibility would be achieved by the shares being held through family trusts. The email (Burrows email) contains the statement:

On 24 September 2012, Rick Herro (Mr Herro), the principal of a web administrator known as “The Net Unleashed”, sent an email to Rebecca Ottaway (who appears to have been an employee of Mr Marino associated with CBG), copying in Mr Marino and Mr Polo. The email provided a detailed fee proposal for the setting up and ongoing administration (seemingly for a period of 12 months) for an Oracle Law website: CB 707. I refer to this in more detail below.

On or about 1 May 2013, a proposed form of business chart, described as an “Oracle Law Business Plan & Structure”, was created. The structure assumed that Oracle Law would be some form of corporation and envisaged that Mr Polo would be the director of Oracle Law, with each of Mr Polo and Mr Marino having a 50% shareholding. Oracle Law was shown as providing services under four heads, being “individual services”, “business services”, “family services” and “commercial services” (proposed business chart): CB 713. However, this proposed corporate structure for Oracle Law was never instigated or formalised.

The first occasion on which Mr Marino adopted the title “business development manager” in Oracle Law emails appears to be on or about 10 October 2013, when he corresponded with Dean Ind (copying in others) using his Oracle Law email in connection with negotiations with a number of accountancy firms, financial planners, finance brokers in relation to the offering of a “Will Kit” (Exhibit D6: T 368) as a wholesale product to Oracle Law’s clients: CB 718. As best I can gauge, the abbreviated version of “business development manager”, namely “BDM”, appears to be first used by Mr Marino in Oracle Law emails on or about 13 February 2017: CB 963.

I asked Mr Polo about how the “business development manager” arrangement between him and Mr Marino arose. He indicated that the arrangement arose “during the transition”. Exactly what “transition” Mr Polo was referring to was undefined other than by reference to the fact that Mr Polo had assisted Mr Marino with his litigation matters in respect of previous partnerships and his family law matter. Mr Polo elaborated, indicating that (T 146.45-.50):

Mr Polo stated that he understood there to be no difference between a person referring work to him and that person becoming what he described as a “business development manager”, indicating “[i]t was only a title”: T 147.1-.16.

By 4 July 2014, Mr Marino had a conference with a bank (seemingly Westpac) in relation to integrating payment gateways and merchant facilities in connection with the Oracle Law website: CB 717, 722 (merchant facilities enquiries).

In or about July 2014, Mr Polo made an application for a PayPal business account to be set up for Oracle Law: T 164. On the account form, the box designated “business type” has the word “partnership” inserted: CB 723 (PayPal email).

As I have noted above, in about late 2014 Mr Polo needed an office on the Gold Coast, and he and Mr Marino agreed to share an office space at Mermaid Beach (office premises): CB 206[18]. The office premises were located in the Mermaid Shopping Centre on the Gold Coast Highway.

On 22 September 2014, in the application for lease of the office premises, Mr Marino is described as the first applicant and Mr Polo as the second applicant: CB 733-738 (lease application). The business name is described as being “Polo & Co Solicitors”, with the trading name as “Oracle Law” and current business being “solicitor”: CB 735. No additional description or business name is provided. The lease schedule describes the permitted use of the premises as being “legal administration office”: CB 736. Despite the impression given by the lease application, it was Mr Polo’s contention that he and Mr Marino each worked on their own respective businesses (i.e. Oracle Law and CBG) in different parts of the office: T 142.8-.11, 288.35-.40.

The street façade of the office premises was depicted in a photo: CB 781. Whilst the date of the photo was not given, it was clearly taken while Oracle Law operated out of the premises. On the awning there was a prominent sign with the Oracle Law logo and the Oracle Law website address. There was no signage for CBG depicted in the photo.

To access the office premises, there were stairs at the front of the building which led up to a veranda on the first level, on which the office premises were located: T 289. When one reached the top of those stairs, there was a door to the office premises. However, there was no signage on the door. Towards the back of the building there was a car park with designated parking spots allocated to premises rented within the building and marked by signage: T 290. At least one of those spots had signage referable to Oracle Law with a “NO PARKING DAY AND NIGHT - Oracle Law STAFF ONLY” sign: CB 779. There was no equivalent signage for CBG: T 290. Mr Marino was responsible for sourcing such signage for Oracle Law (see below).

A photograph depicting the flight of stairs leading up to the front entrance of the office premises was tendered: Exhibit D3; T 359. The dating of the photograph was not established, and it does not reveal any particular signage to Oracle Law or otherwise. A photograph of the back entrance to the building was also tendered: Exhibit D4; T 359.

Another photograph was tendered which was taken near the top of the stairs at the front of the building, and which showed a signage board on a tiled wall: MFI-2 (T 359), which became Exhibit D7 (T 393). The signage board contained details of shops 1 to 13 on the ground floor and offices 1 to 7 on the first floor. Mr Jamieson indicated that the signage board depicted was the current directory at the Mermaid Shopping Centre: T 358.23-.26. In relation to the office premises (office 7), the photograph depicts Mr Polo holding a makeshift white label with black writing on it over the name of the current occupant of office 7. The label contained the words “Oracle Law – Crystal Blue Group”, which was said to depict how the signage presented prior to the termination of Mr Polo and Mr Marino’s lease. What appears to be precisely the same photograph was marked as MFI-3 (T 360) and tendered as Exhibit D8 (T 393), and was said to depict the type of directory that existed at the back of the building (though it was accepted that the photograph was not a photograph of the actual directory at the back of the building).

During the hearing, Mr Polo prepared a sketch plan of the office premises: Exhibit D1. As noted above, Mr Polo asserted that he shared the premises with CBG and/or Mr Marino on the same floor in the Mermaid Shopping Centre building: T 288.35-.40. The total area of the office premises was 69m²: CB 1389.

Looking at Exhibit D1, there was a passageway leading from the front door into the premises, with a boardroom on the left and what Mr Polo described as his “Oracle office” on the right. He stated that the Oracle Law office and the boardroom were entirely his for “occupation” (i.e. use). Once one passed the boardroom and the Oracle Law office, there was a rear area containing a kitchen, storage and photocopier on the left and what was described as the “Crystal Blue office” on the right, being a section where Mr Marino and his CBG staff would work. Mr Polo indicated that, in terms of area, CBG staff and Mr Marino occupied about half of the overall office space entirely to the exclusion of Mr Polo: T 288.35-289.19.

Mr Polo stated (in context in or about late 2017) that he held conferences at the front of the office premises and the front boardroom, and at no stage involved himself with Mr Marino’s operation in the back offices: CB 207[22].

On 26 September 2014, Mr Marino corresponded with RBC Business Solutions apparently sourcing the purchase of a photocopier for Oracle Law: CB 739-740.

On 9 October 2014, Business Insurance Planning, an authorised representative of an insurance broker, provided a quotation for business insurance for Mr Polo and Mr Marino, marked to the attention of Mr Polo. The insurance schedule describes the insured name as “Renaldo Polo & Frank Marino” and the trading name as being “Polo & Company Solicitors & Oracle Law”: CB 750 (insurance quotation).

On 21 October 2014, Mr Marino engaged in email correspondence using his Oracle Law email address in relation to Oracle Law T-shirts: CB 765-766.

On 22 October 2014, Mr Marino corresponded with Darryl Clarke regarding logo images for Oracle Law office signs, including for the front door, the awning and the car park: CB 771-775.

On 24 September 2015, Mr Marino and Mr Polo extended the lease of the office premises for a term of one year, commencing on 10 October 2015 and due to expire on 9 October 2016: CB 783, 784.

During the hearing, it became obvious that a particular aspect of the case against Mr Polo was centred around his steps which empowered Mr Marino’s use of the Oracle Law website and an Oracle Law email address.

Mr Polo indicated that Mr Marino had assisted him with setting up the Oracle Law website because Mr Marino had an understanding about websites that Mr Polo did not: T 157.28-.37. Mr Marino essentially confirmed that this was the case: T 369.31-.38.

Following the 24 September 2012 fee proposal from Mr Herro that I noted above, the next correspondence regarding Oracle Law email setup appears to have been on 15 April 2013, when Mr Herro sent an email to Ms Ottaway indicating that the following three email addresses had been created (CB 709):

The same email provided details of “CMS ADMIN”, indicating that there were two users – “Frank” (Mr Marino) and “Rebecca” (Ms Ottaway): CB 710.

Ms Ottaway forwarded the email to Mr Polo: CB 709.

“CMS” appears to be an abbreviation of “Content Management System”, which Mr Herro described as “an easy to use site management tool allowing client management and editing of all site images and written content”: CB 707. Essentially, it allowed for backend access to the Oracle Law website.

On 3 May 2013, a number of emails were sent in respect of the Oracle Law email system and website:

On 6 May 2013, Ms Ottaway made that request of Mr Herro, who later that day responded with the details of the Oracle Law email address set up for Mr Marino: CB 714.

On 4 June 2013, Ms Ottaway sent an email to Mr Polo providing the same “CMS ADMIN” details received from Mr Herro on 15 April 2013, indicating that the information was the “login for the backend of the website” if Mr Polo needed it: CB 709. The email went on to indicate that she would arrange for Mr Herro to set up a login for Mr Polo as well. On the same day, Mr Herro arranged for Mr Polo to be set up with backend access to the Oracle Law website: CB 711.

A domain name is the string of text that a user types into a browser window to reach a particular website. Domain names are registered in domain registries. Applications can be made to registrars to reserve domain names and to register a domain name. Thus, for example, it appears that Mr Polo was the registrant of a domain name “protectnlocate.com.au”, which had been registered by the registrar “Web Address Registration”: CB 1087.

Details regarding nomination of the ownership of the Oracle Law domain name “oraclelaw.com.au” were not expressly explained by the parties or counsel, nor evidence from the initial 2012 correspondence with Mr Herro. Some gleaning of it does, however, appear in later correspondence in the Court Book.

Mr Marino had a CBG account with Mr Herro (e.g. CB 970), and Mr Marino received renewal invoices for his “crystalblueproperty.com” domain name from Mr Herro’s firm: e.g. CB 799-801. On 21 September 2016, Mr Herro’s firm sent to Mr Marino’s CBG email address an invoice for renewal of the Oracle Law domain name: CB 812-813. The parties assumed, and I infer, that Mr Marino or CBG had ownership of the Oracle Law domain name.

Mr Polo’s affidavit evidence states that, whilst at the office together, he was not aware that Mr Marino was without his permission using “my email” for Mr Marino’s own purposes: CB 207[25]. It is not clear precisely what Mr Polo meant by “my email”. I further address his evidence as to permission below.

Mr Polo was cross-examined on a number of occasions regarding the website and email arrangements for Oracle Law. I gained the impression that Mr Polo’s understanding of website and email control, authorisation and access was very poor. Indeed, even at the time of the hearing, he did not appear to have any clear working understanding of what an administrator of a website domain is enabled to do, or what access they have: T 158.15-.32; also T 157.28-.37, 159.13-.47.

Specifically, Mr Polo did not have any clear understanding of: (a) what an “admin” does; (b) what “admin access” means; or (c) what “control over” the Oracle Law website or domain name entailed: T 158.30-159.22

In light of that, it is difficult to know what to make of Mr Polo’s answers in respect of control and access to the Oracle Law website and email arrangement.

From Mr Polo’s responses, he seemed to believe that:

Mr Polo gave contradictory evidence regarding whether, and at what times, Mr Marino had control over his own Oracle Law email address: T 160.6-.24.

Significantly, Mr Polo gave evidence that, until some point in April 2018 which he cannot recall, he was able to see every email sent or received on Mr Marino’s Oracle Law email address through some form of auto-forwarding system that had been established by the web administrator: T 160.26-161.23, 181.9-.25 (it being unclear as to who Mr Polo regarded as being the “web administrator”). After that point, he says that he could no longer see those emails being sent or received on Mr Marino’s Oracle Law email.

However, Mr Polo’s evidence was that Mr Marino would use his Oracle Law email and CBG email interchangeably: T 186.45.

On 30 June 2016, Mr Marino corresponded with Mr Herro (copying in Mr Polo) requesting the setup of a new email address for Oracle Law, being “admin@oraclelaw.com.au”. According to Mr Polo, the Oracle Law “admin” email address had a particular function and related to the Will kit that he had developed: T 188.7-189.24. The email also requested of Mr Herro to set up a function such that when anybody emailed out from the new email address, or received an email, that the Oracle Law “info” email address and Mr Marino’s Oracle Law email address would be automatically blind copied in the email: CB 793. Mr Marino indicated that this would help them track all emails sent and received. Another email sent by Mr Marino on the same day requested of Mr Herro to make certain changes to the Oracle Law website (including to presentation in respect of font size and colour, and change of contact address information): CB 793.

On 6 May 2016, it appears that Mr Marino arranged to have his Crystal Blue Wealth email terminated: CB 795.

On 2 July 2018 (in the midst of Mr Marino’s correspondence with the plaintiffs regarding the investment proposal), Mr Marino via his CBG email arranged through Mr Herro to have the Oracle Law domain name renewed for a further two years, to expire on 27 September 2020: CB 1504-1505.

I address below the termination of the Oracle Law website and email arrangements.

In about September 2016, Mr Pacifico travelled with a few friends from Adelaide to Broadbeach on the Gold Coast and stayed for around four days: CB 139[24]. On one of the nights, Mr Pacifico attended the opening of his friend’s restaurant. He was having some drinks at the restaurant when Mr Marino sat down next to him and engaged him in conversation: CB 140[28]. Later in the evening, Mr Pacifico had a further conversation with Mr Marino in which he says Mr Marino informed him “I’m a lawyer”: CB 140[29]. On hearing this, Mr Pacifico asked Mr Marino to “look at” a vitamins business, Pharma Active Pty Ltd (Pharma Active), which had approached Mr Pacifico for a loan.

In his amended defence, Mr Marino gave a different version of their introduction. Mr Marino pleaded that upon his introduction to both Mr Mackay and Mr Pacifico at the venue, he handed them his CBG business card and introduced himself as a “New South Wales real estate agent”. Mr Marino also told Mr Pacifico and Mr Mackay that he had been involved with property development and marketing for over 21 years: CB 36[11(a)]. Mr Marino pleaded that at no material times did he state that he was a solicitor or employee of Oracle Law: CB 37[11(h)].

There is a conflict between Mr Pacifico’s evidence and Mr Marino’s amended defence. I accept Mr Pacifico’s evidence that Mr Marino told him words to the effect “I am a lawyer”.

The two exchanged phone numbers and Mr Pacifico saved Mr Marino’s details as “Frank Law” in his mobile phone: CB 141[30].

Subsequently, Mr Pacifico met Mr Marino in Sydney, at which point Mr Marino indicated that he had done certain checks in relation to Steven Elovaris (Mr Elovaris), a man associated with Pharma Active, and considered that “everything’s well”. As a result of this, Mr Pacifico says, and I accept, that he considered he could trust Mr Marino and thought Mr Marino would look after him and “legally protect” his interests in relation to the proposed loan, and potentially other loans and investments: CB 141[36].

From about September or October 2016, Mr Pacifico met Mr Marino more frequently in Adelaide, Sydney and on the Gold Coast to discuss various business matters, including Pharma Active loan issues: CB 142[41], [43].

Much of the evidence adduced by the plaintiffs in the proceedings, in particular from Mr Pacifico, was directed to showing Mr Marino’s association with Oracle Law and his engagement in what the plaintiffs asserted was legal work.

Broadly speaking, the evidence revealed quite extensive engagement between Mr Pacifico and Mr Marino in respect of Mr Pacifico’s lending arrangements with Pharma Active and Mr Pacifico’s friend and associate Mr Mackay. The nature of that engagement included a degree of limited (and to some extent indirect) involvement from Mr Polo in respect of some conveyancing-type work for Mr Mackay and negotiations with a receiver for Pharma Active, which I detail further below.

The evidence was not adduced in a particularly ordered way. I have had to spend some time trying to bring some order to that evidence.

In about 2005 to 2007, Mr Pacifico engaged Ralph Tortorella (Mr Tortorella) of Bowman Management and Accounting (Bowman Management) to act as his personal accountant and accountant for Adelaide. Mr Tortorella set up a discretionary trust, the SP Glass Trust, and Mr Pacifico became the trustee of that trust: CB 138[12].

Mr Pacifico had known Mr Mackay since around 2007 or 2008 and regarded him as a friend. Mr Mackay was referred to by Mr Pacifico and others as “Huey”: CB 137[5]. He also used an email address which presented his name as “Houston Mackay” (e.g. CB 1314). The evidence revealed that Mr Pacifico, through Adelaide, had lent substantial funds to Mr Mackay and/or MEG by the time that he met Mr Marino.

Mr Mackay was the sole director of MEG. MEG was registered on 17 August 2007 and deregistered on 17 January 2021: CB 137[7], 2397. MEG owned six properties at XXX-XXX Chinderah Bay Drive, Chinderah.

The evidence regarding the precise title references for the six Chinderah properties owned MEG was not consistent in the Court Book materials. As best I can gauge, the title references and security position (as at 4 May 2017) for XXX, XXX, XXX, XXX, XXX and XXX Chinderah Bay Drive, Chinderah are respectively as follows (see CB 1038-1039 – and numerous other copies of the same email e.g. at CB 1047-1048, 1142-1143, 1145-1146):

By 15 August 2017, Suncorp’s mortgage over XXX and XXX Chinderah Bay Drive had been released under some arrangement whereby security over those properties had been given to Unity Funding: CB 1044.

On or about 23 November 2015, MEG entered into a Deed of Acknowledgement of Debt acknowledging that MEG owed Adelaide $610,900, which was subject to a mortgage security over XXX Chinderah Bay Drive, Chinderah (more particularly lot X DP XXXXX) (First MEG Deed): CB 137[8], 1004-1014.

During the hearing, it became evident that at various times there was different representation for Mr Mackay and MEG in relation to the various conveyancing and security issues regarding the Chinderah properties. However, none of the parties or their legal representatives proffered any precision as to who was representing Mr Mackay and MEG at which time. As best I can gauge, Mr Mackay and MEG appeared to be represented as follows:

Pharma Active was registered on 13 November 2015. Alexander Pyrlis (Mr Pyrlis) was a director of Pharma Active from that time until the company was deregistered on 16 March 2020: CB 2403-2405. On 6 July 2017, receivers were appointed to the company for several months and, on 31 January 2019, a liquidator was appointed and Pharma Active was wound up. The liquidation ceased on 16 December 2019: CB 2403-2405.

Mr Pacifico had been informed by his accountant, Mr Tortorella, that Pharma Active was the company of Mr Elovaris: CB 138[18]-[19]. However, Mr Elovaris’ name does not appear in the current and historical ASIC search of Pharma Active that was in evidence: CB 2402-2408. Other material describes Mr Elovaris as being the “manager” of Pharma Active: CB 811.

In or about August 2016, Mr Pacifico sold his concrete polishing business: CB 138[14]. At or about this time, Mr Tortorella contacted Mr Pacifico regarding an opportunity to lend $200,000 to Pharma Active: CB 138[15]-139[20]. Mr Tortorella’s connection to Pharma Active was through Mr Elovaris, who was a client of Bowman Management.

It appears that Bowman Management drafted a form of loan agreement to document the loan. The loan agreement is dated 26 August 2016 and is for the sum of $200,000: CB 809-811. However, it seems that the monies were lent on 29 August 2016 and the actual agreement itself was signed by Mr Pacifico as trustee for the SP Glass Trust on or about 5 September 2016: CB 139[21]-[22]. I will refer to this loan agreement as the First PA Deed.

Thereafter, Mr Pacifico corresponded with Mr Elovaris and Mr Tortorella regarding repayment of the funds he had lent.

As noted above, much of the evidence adduced by the plaintiffs in the proceedings was directed to showing Mr Marino’s association with Oracle Law and his engagement in what the plaintiffs asserted was legal work.

The presentation of the evidence to this end was haphazard. It is not entirely clear whether this evidence was relied upon purely for the purpose of showing that Mr Marino was engaging in some form of legal work or whether it was additionally adduced to show the plaintiffs were aware of what Mr Marino was doing. In any event, in summary, the following appear to be the salient chronological events related to Mr Pacifico’s matters.

In or around October 2016, Mr Pacifico’s initial correspondence with Mr Marino involved Mr Marino discussing arrangements with him to: (1) help recoup the money that was owing from Mr Mackay (or rather MEG), which required Mr Marino getting involved in Mr Mackay’s handling of the Chinderah properties; and (2) prepare a stronger loan agreement with Pharma Active to better protect Mr Pacifico’s interests, as it appears Mr Marino considered the existing agreement was insufficient: CB 142[41]-143[47].

According to Mr Polo, in November 2016 Mr Marino introduced Mr Mackay to him (or Oracle Law) “for a conveyance”: CB 208[34].

As referred to above, from about 22 November 2016 Mr Polo acted for Mr Mackay and/or MEG in relation to matters associated with XXX Chinderah Bay Drive, Chinderah: CB 143[48], 835-836.

Mr Polo indicates that his work for Mr Mackay as a client was for conveyancing in relation to his land at Chinderah, which required subdivision, registration and preparation of sale contracts. Mr Polo says that he prepared sale contracts and issued these to various buyers who proposed to purchase the land after the registration of the subdivision had occurred: CB 208[34].

Between 12 and 16 December 2016, Mr Marino corresponded with Mr Pacifico and Mr Elovaris in relation to the re-drafting of the First PA Deed: CB 143[50]-144[55], 845-849. Although dated 1 November 2016, the revised deed was executed by the borrowers on 22 December 2016 and by Mr Pacifico as trustee for the SP Glass Trust on 15 January 2017 (Second PA Deed): CB 831. The Second PA Deed was far more elaborate than the First PA Deed and nominated, in addition to Pharma Active, two other borrowers, being Daven Pty Ltd as trustee for the Nicholas Elovaris Family Trust and Mr Elovaris: CB 814-831.

The schedule to the Second PA Deed includes reference to Mr Marino’s Oracle Law email address as a nominated address for service for Mr Pacifico as lender: CB 829. The Second PA Deed was also emailed to Mr Elovaris and Mr Pacifico on 16 December 2016 from Mr Marino’s Oracle Law email address, with the signature line “Business Development Manager”: CB 882.

Notably, in cl 6.9.2, the Second PA Deed includes provision for payment of Mr Pacifico’s collection costs and costs of entry into the agreement, which are said to include but are not limited to “commissions and outlays payable to Frank Marino & Renaldo Polo for work in collecting the Loan Amount and associated monies”: CB 823. In addition, it makes provision in cl 6.10 for the borrowers to pay to Mr Pacifico his costs of entering into the agreement “including but not limited to commissions and outlays payable to Frank Marino & Renaldo Polo for work in preparing this agreement”: CB 824.

In his affidavit evidence, Mr Pacifico indicated that, between at least 2 February 2017 and 4 September 2017, he understood that Mr Marino was representing him in relation to drafting a (new) loan agreement to allow Adelaide to remove its caveat over certain of Mr Mackay’s Chinderah properties in order to allow Mr Mackay to refinance and repay the funds owing to Adelaide, which totalled $300,000: CB 145[58]. Mr Pacifico understood from the arrangement that Mr Marino, through Oracle Law, would be acting for him to arrange repayment from Mr Mackay. Interestingly, Mr Pacifico’s affidavit indicated that he understood Mr Polo originally worked for Mr Marino and would assist Mr Marino on those matters for which Mr Marino asked his assistance: CB 145[59]. In cross-examination, Mr Pacifico indicated that he could not precisely remember the reference to Mr Polo assisting Mr Marino on such matters, but he did remember Mr Marino saying that Mr Polo worked for him: T 87.

On 23 February 2017, Mr Marino sent to Mr Pacifico a draft amended deed for the loan agreement between Adelaide and MEG (Second MEG Deed): CB 994-1023. In the email, Mr Marino states that he had included a number of extra conditions to “cover” Mr Pacifico. The email also attached “an updated work time sheet”, which Mr Marino indicated showed what time had been put into the deal for Mr Pacifico: CB 993 (the timesheet appears at CB 1024). The timesheet gives some indication of the activities Mr Marino was “charging” for, as set out below.

On 1 May 2017, a form of authority was prepared whereby Mr Mackay, in his capacity as sole director of MEG, in consideration of Adelaide releasing its caveat over XXX Chinderah Bay Drive, charged on behalf of MEG a substitute security described as “Lot [XXX], [XXX], [XXX] Chinderah Bay Rd, Chinderah (Lot [X] in DP [XXXXXX]), (Lot [X] in DP [XXXXXX]) and (Lot [X] in DP [XXXXXX])”: CB 2061 (it will be observed that the lot reference for XXX “Chinderah Bay Rd” (which ought to read “Chinderah Bay Drive”) was precisely the same as the lot reference for XXX Chinderah Bay Drive, and in that respect appears to have been a mistaken description of that lot number). The authority in evidence is signed by Mr Pacifico on behalf of Adelaide but there is no signature by or on behalf of MEG.

As referred to above, seemingly on or prior to 3 May 2017, Mr Mackay engaged Bill Redmond of Redmond + Redmond Lawyers to act for him: CB 1162. On 4 May 2017, Amy Clark, a paralegal of that firm, sent correspondence to Mr Mackay about MEG’s refinancing of the Chinderah properties: e.g. CB 1145.

On 8 May 2017, Mr Marino sent an email to Mr Mackay noting that Mr Pacifico had agreed to have a caveat placed on the properties at XXX-XXX Chinderah Bay Drive, and indicated that certain conditions needed to be agreed upon prior to Mr Pacifico providing his consent to a release of the existing caveat. Notably, Mr Marino stated that he would need to approve the new caveat prepared by Mr Redmond prior to lodgement taking place. The email was sent from Mr Marino’s Oracle Law email address with the signature “BDM”: CB 1036.

Also on 8 May 2017, Mr Marino sent an email to Mr Pacifico from his Oracle Law email address with the subject heading “Legal services Tax Invoice”. The content of the email was as follows (at CB 1209-1210):

Precisely what was attached to this email is not entirely clear. Nonetheless, there is a form of tax invoice dated 13 May 2017, identified as invoice 70, which is under the letterhead of Oracle Law: CB 1211. The invoice sets out a description of work (which items roughly accord with the “time sheet” Mr Marino sent to Mr Pacifico on 23 February 2017) with provision for payment to Mr Marino at the foot of the page, with fees totalling $7,678 (invoice 70).

In his amended defence, Mr Marino claimed that invoice 70 was issued to Mr Pacifico in his capacity as trustee of a trust unrelated to the proceedings: CB 38[11(k)]. Mr Marino further asserted that Mr Pacifico had disputed the invoice amount and only agreed to pay $4,750, and that Mr Polo had instructed Mr Marino to create and send the invoice for Mr Polo’s services.

It would appear that invoice 70 was attached to a subsequent email from Mr Marino, again from his Oracle Law email address, to Mr Pacifico on 15 May 2017: CB 1208-1209. The content of that email was as follows:

Mr Pacifico referred to the receipt of these emails in his affidavit evidence: CB 150[81]-[83]. Whilst Dr Baron Levi submitted that these were some of the communications which created a risk that the plaintiffs could have viewed Mr Marino as a solicitor, and indeed suggested that Mr Mackay was under the impression that Mr Marino as a solicitor (T 420.45-421.22), Mr Pacifico does not actually say that his receipt of these emails confirmed for him the belief that Mr Marino was a solicitor.

On 21 May 2017, a nine paragraph typed document with handwriting on it was apparently signed by Mr Mackay and witnessed by Mr Marino: Exhibit D5; T 365. The handwriting stated:

According to Mr Marino, Mr Mackay had terminated Mr Polo as the conveyancing solicitor for him and MEG as at that date and went to another solicitor: T 365.21-.31.

If it be the case that Mr Mackay had signed a form of termination of Mr Polo’s instructions in May 2017, the evidence leaves somewhat unexplained why Mr Polo seems to have still been involved with Mr Mackay up until July 2017.

Mr Polo deposed that, in July 2017, “caveat release [advice] was provided to Mr Mackay in relation to the encumbrance on title”, and “the advice was in relation to the steps outlined by the caveator for release of the caveat”: CB 208[35].

Mr Polo stated that it was difficult to obtain instructions from Mr Mackay and he ended up handing back to Mr Mackay the sale contracts which he had prepared and recovering his out-of-pocket expenses for searches required for the contract preparation: CB 208[34].

On 18 July 2017, Mr Marino sent an email to Mr Mackay regarding release conditions for the caveat on XXX-XXX Chinderah Bay Drive: CB 1040, 1309, 1310, 1312, 1314. It was marked “without prejudice” and in the following terms:

On or about 1 or 2 July 2017, Mr Pacifico became aware that Pharma Active was going into receivership: CB 152[89]. He telephoned Mr Marino, however Mr Marino stated that he was overseas at that point and asked him to call Mr Polo: CB 152[90]. Mr Pacifico subsequently spoke with Mr Polo, at which point Mr Pacifico indicated to Mr Polo that he was a friend of Mr Marino’s and that he would get Mr Elovaris to call Mr Polo to explain the matter: CB 152[92]; T 77. Over the next few days, Mr Pacifico had further discussions with Mr Polo in which Mr Polo indicated that he was talking to Pharma Active’s receivers and staying in touch with Mr Marino: CB 152[93].

Sometime after 19 July 2017 (or at least prior to 15 August 2017), there was further communication between Mr Pacifico and Mr Marino. After speaking with Mr Mackay, Mr Pacifico became aware that there were some problems between him and Mr Polo. Mr Pacifico then spoke with Mr Marino about this, who responded “[d]on’t worry about it. I’ve sacked Renaldo”: CB 154[102]-[103].

On 5 September 2017, Mr Marino sent Mr Polo an email from his Oracle Law email address with the subject line “Pharmaactive Tax Invoice” in the following terms (CB 1342):

On 13 September 2017, Mr Polo sent an email (CB 1346, see also CB 1345, 1348, 1352, 1356, 1358) to Mr Pyrlis, Mr Elovaris, Mr Pacifico and Mr Marino under the subject heading “AMENDED TAX INVOICE” (September 2017 PA amended tax invoice email) stating:

Connected to the version of the September 2017 PA amended tax invoice email appearing at CB 1346 is an invoice (at CB 1347, see also CB 1357) dated 13 September 2017 with Oracle Law’s logo and a reference “Renaldo Polo” (September 2017 PA Polo amended tax invoice). The content of the invoice was as follows:

A reference to an “amended” tax invoice ordinarily conveys that an original invoice has been provided. However, Mr Polo could not identify what the purpose of the actual amendment was, and Dr Baron Levi indicated that the original invoice was not in evidence and had not been produced following the issue of a notice to produce (within a general request for documents): T 230.35-231.14.

Confusingly, connected to an email from Mr Marino dated 6 March 2018 (CB 1351), which appears to be following up payment of the September 2017 PA Polo amended tax invoice, is a separate invoice (CB 1353) with the Oracle Law logo, but which bears the hallmarks of Mr Marino’s involvement in the matter referred to as “Scott Pacific Vs Pharmactive In Receivership”, is for a larger amount and provides payment details for a different account (September 2017 PA Marino tax invoice). The invoice in its terms appears to be “billed” not to Mr Pacifico but in fact Pharma Active. The content of that invoice was as follows:

The email attaching that invoice was sent to Mr Elovaris and Mr Tortorella, among others, from Mr Marino’s Oracle Law email address, and appeared to be following up a previous email from Mr Marino on 9 October 2017 to Mr Elovaris under the subject heading “ORACLE LAW - TAX INVOICE” (CB 1351, see also CB 1356). That previous email stated:

Meanwhile, on 20 October 2017, Mr Polo sent an email to Mr Pyrlis, copied to Mr Marino, under the subject heading “Fwd: AMENDED TAX INVOICE”: CB 1358. In the email, Mr Polo stated: “See attached outstanding Invoice for payment. Advise when payment is expected”.

On 18 January 2018, Mr Marino sent an email to Mr Tortorella, copied to Mr Pacifico and Mr Elovaris, making a disclosure of four loans with which he had been associated, including two relating to Mr Pacifico: CB 1369-1371. That email also made reference to the September 2017 PA Marino tax invoice and relevantly concluded with the following three sentences:

In relation to the concluding statement of purported instructions to Oracle Law, the email is an example of what appears to be Mr Marino representing to recipients of the email matters that would have ordinarily been the subject of instructions for legal proceedings. That is notwithstanding the email containing the signature “Frank Marino - BDM”.

On 18 July 2018, Mr Pacifico was copied into an email from Mr Marino using his Oracle Law email address. The email was directed to Mr Tortorella: CB 2286. The email attached another tax invoice, being invoice 71 (CB 2288), with an Oracle Law logo and said to be in respect of work done for the matter “Scott Pacific Vs Pharma Active In Receivership”. In fact, the invoice is identical in all material aspects to the September 2017 PA Marino tax invoice except for the date, claiming fees of $10,000 for “Professional Fees in relation to the above matter”. The payment options provided for payment to an account apparently with the NAB, with a reference for Mr Marino. Dr Baron Levi asked Mr Pacifico about this document in re-examination and, whilst he indicated that it was one of the invoices that Mr Marino had provided to him, he could not remember how it was sent to him: T 110.20-.38.

In his amended defence, Mr Marino claimed that: this invoice was issued to an unrelated company to the proceedings; Mr Polo had instructed Mr Marino to create and send the invoice for Mr Polo’s services; and the invoice was never paid: CB 38[11(l)].

On or about 26 August 2017, Mr Marino returned from overseas and, according to Mr Polo, did not attend the office premises as frequently as he had done previously: CB 209[46], 210[50]. When Mr Polo would attend the office premises, one of Mr Marino’s office staff would be there attending to CBG business. Mr Polo said that from this time to the expiry of the lease of the office premises, his contact with Mr Marino diminished over time.

Mr Polo indicated that the landlord’s agent contacted him and Mr Marino in or about late 2017 to discuss whether they intended to renew the lease, which was due to expire on 31 March 2018: CB 210[51]. Mr Polo tried to find a subtenant to take Mr Marino’s share, however was unsuccessful. The office premises were vacated at the end of the lease, with Mr Polo leaving the premises on 14 April 2018: CB 66, 207[27], 210.

According to Mr Polo, during 2018 Mr Marino aligned himself with Craig Bax for his legal issues and advice: CB 208[32]. Mr Polo accepted in cross-examination that this alignment between Mr Marino and Mr Bax was one of the reasons for the breakdown in his relationship with Mr Marino: T 136. Mr Polo did not trust Mr Bax, although he denied that one of his reasons for distrusting him was that Mr Bax had been struck off as a solicitor from the roll of solicitors in Queensland; albeit Mr Polo was aware that Mr Bax had been struck off: T 136-137. He accepted that at least part of the reason why he distrusted Mr Bax related to matters of dishonesty and integrity: T 137.

In or about early 2018, Mr Marino travelled to Adelaide and met Mr Pacifico. Mr Pacifico indicated that this was when Mr Marino informed him that he was involved with “trading platforms”, and had been making money with a friend who had been in the share markets and banking industry for years: CB 155[110].

The plaintiffs pleaded that, in or about June 2018, Mr Marino represented to Mr Pacifico that: Mr Marino managed investments; selected people were investing $100 million in an investment platform with which Mr Marino was associated; and if Mr Pacifico found investors who would invest $1 million in the investment platform, Mr Pacifico would make 40% of the profit: CB 6[14]. In his amended defence, Mr Marino admitted that he had advised Mr Pacifico and Mr Parrella that he offered assets management services for a variety of investments situated outside of Australia: CB 38[12].

In or about early July 2018, Mr Parrella had a discussion with Mr Pacifico during which Mr Pacifico informed him about an investment opportunity that Mr Marino had told him about. Mr Pacifico asked Mr Parrella whether he wished to participate and invest some money: CB 182-183[12].

Mr Parrella referred to an initial meeting with Mr Marino and Mr Pacifico, in or about late July 2018, at Mr Parrella’s business premises in Magill, Adelaide: CB 183[15]. Later that night, there was a further meeting at Mr Parrella’s home during which, according to Mr Parrella, Mr Marino told him and Mr Pacifico (CB 183[19]):

Mr Parrella said that Mr Marino had a folder of documents that he showed them, which included what appeared to be letters, emails and contracts all on the letterhead of Oracle Law. Mr Marino also showed them his business card, which had an Oracle Law logo on it. Mr Parrella further said that Mr Marino told them that he “was involved in the preparation and amendment of those documents”, and also later said that “I own Oracle Law”: CB 184[20]-[22]. Mr Parrella said that, as a result of those statements and the fact that Mr Marino was providing them with legal documents which he had amended, he thought that Mr Marino was a lawyer and believed that he was the owner of Oracle Law: CB 184[23].

On 19 July 2018, Mr Pacifico received an email from Mr Marino, again from his Oracle Law email address, with the subject line “INSTITUTIONAL BANKING Programs” and attaching a number of PowerPoint presentations: CB 159[127], 1516; T 25.

The body of the email per se has no content. Another version of the email appears at CB 2105-2106 with the actual attachments proceeding it.

It is not relevantly disputed that Mr Marino’s 19 July 2018 email attached a number of PowerPoint documents appearing at CB 2107-2145, which included the following:

The three sets of PowerPoint documents follow a similar form of presentation to one another.

To give a flavour of the presentations, I note that the “LEVERAGED CASH TRADE PROGRAM (Small Cap)” presentation includes the following details.

The first page of the presentation (CB 2107) contains a stock image of high-rise office buildings looking up to a blue sky, with the words “LEVERAGED CASH TRADE PROGRAM (Small Cap)” in the centre of the page. In the top right-hand corner of the page is the Oracle Law logo and at the bottom right-hand side are the words “Presented to you by Frank Marino”.

The third page (CB 2109) is titled “Background Information” and contains five points as follows:

Thereafter, further detail about the purported “Trade Platform” is included on subsequent pages titled:

The following page (CB 2112) addresses “Risk Understanding” and the question “what is the risk of losing my money”. On that page is a diagram with a number of arrows forming a type of square with the words “IDENTIFY RISK”, “ASSESS RISK”, “CONTROL RISK” and “REVIEW CONTROLS”. On the left-hand side there are two points as follows:

On the right-hand side there are an additional two points as follows:

At the foot of the page there is the following note:

The “MANAGED Tear Sheet Program” presentation contains the following information on its page dealing with “Background on the process – Parties involved” (CB 2136):

The logo of Oracle Law appears on a number of pages in each of the three sets of PowerPoint documents (CB 2107, 2116, 2117, 2118, 2119, 2120, 2130, 2131, 2132, 2133, 2143, 2144, 2145).

Specifically, included on the final page of each of the three sets of PowerPoint documents (CB 2119, 2132, 2145) are the following words:

Mr Pacifico’s evidence in relation to this material included the following (CB 159[128]-160[131]):

The particular proposal to which the above-mentioned presentations related required an investment of $1 million, which Mr Pacifico and Mr Parrella did not have: CB 160-162.

It is not suggested that these particular presentations, which were apparently offering three different investments, referred to the actual investment into which the plaintiffs ultimately entered. Rather, they were put by Dr Baron Levi as indicating the sort of representations made by Mr Marino in relation to his investments generally, including the association with Oracle Law: T 35.

On 3 August 2018, Mr Marino sent to Mr Parrella (and copied to Mr Pacifico) details of an “exclusive offer” (CB 1517-1518) and attached certain draft documentation: CB 1519-1546; T 38. This offer also required an investment of $1 million.

On or about 9 or 10 August 2018, Mr Pacifico had a further conversation with Mr Marino in which Mr Marino notified him of another opportunity: CB 162[144]. According to Mr Pacifico, the conversation was to the following effect:

Mr Pacifico said that he subsequently had a discussion with Mr Parrella about the new opportunity: CB 162[145]. Mr Parrella indicated that he could come up with a sum of $200,000. Mr Pacifico could come up with $10,000.

According to Mr Parrella, he received a telephone call from Mr Pacifico alerting him to the proposed alternative investment opportunity and had a subsequent telephone conference with Mr Pacifico and Mr Marino in which the following was said (CB 187[38]-[39]):

On the same day or shortly thereafter, Mr Pacifico had a discussion with Mr Parrella and Mr Marino in the driveway to Mr Parrella’s mother’s house as follows (CB 162[146]):

Later, Mr Parrella met with his brother Sabatino and discussed an arrangement whereby Sabatino would provide him with a sum of $200,000. Presciently, according to Mr Parrella, Sabatino stated at the conclusion of the discussion “please, just don’t make me lose $200,000.00”: CB 187[42].

In his cross-examination, Sabatino indicated that he had a brief discussion with Mr Parrella, who had asked him to lend Mr Parrella $200,000 and then receive back $235,000 after three months. Sabatino accessed the funds via a form of overdraft facility, and Mr Parrella gave Sabatino account details to put the funds into: T 65.19-.50. Mr Parrella repaid his brother the $200,000, but not more than that: T 66. Sabatino could not particularly recall stating words to the effect “don’t make me lose it Tony”, but was nonetheless concerned about losing the money: T 67.40-68.26. However, it was evident that Sabatino was content to pay the money over to his brother without making any enquiries regarding the investment: T 69.30-.35.

On 22 August 2018, Mr Marino sent Mr Pacifico an email (copied to Mr Parrella) attaching a form of the AMA. On reading it, Mr Pacifico noticed that the proposed profit was 15%, whereas Mr Marino had promised that it would be 100%. Mr Pacifico also noticed that there was no guarantee in the draft agreement: CB 163[149]-164[151]; T 76.

Mr Pacifico then called Mr Marino and had a conversation as follows (CB 164[152]):

There was further correspondence on 22 August 2018 between Mr Pacifico, Mr Parrella and Mr Marino as follows.

At 3:51am, Mr Marino sent Mr Pacifico an email (from his Oracle Law email with the email signature “Frank Marino – BDM”) in which he noted that he had supplied an AMA for Mr Pacifico to sign (CB 1552-1559) and requested that Mr Pacifico sign and send back the AMA and transfer the amount of $10,000 to an account in Mr Marino’s name: CB 1560-1561, 1579-1580; T 39.

At 7:42pm, Mr Marino sent Mr Parrella an email (from his Oracle Law email with the email signature “Frank Marino – BDM”) in which he noted that he had created and supplied two AMAs for Mr Parrella to sign (CB 1563-1578, 1596-1623; see also T 40-41) and requested that Mr Parrella sign and send back the AMAs and transfer the amount of $200,000 to an account in Mr Marino’s name: CB 1595.

The plaintiffs appear to have assumed that Mr Kamkolkar worked with Mr Marino: see for example CB 165[153], 188[45]. In certain materials he is described as the chief executive officer of Orb Global Investments Pty (OGI): CB 1278. Mr Marino corresponded with Mr Kamkolkar at an “@orbgi.com” email address in relation to some form of investment trading as early as 29 May 2017: CB 1255. Of some interest is the fact that there is a form of investment agreement dated 26 June 2017 between OGI and Mr Marino, in which OGI is described as an “Asset Manager” and Mr Marino is described as the “Investor”: CB 1262. Mr Kamkolkar also had an email address, “akamkolkar@cbwealth.com.au”, associated with Crystal Blue Wealth (another entity with which Mr Marino was associated): e.g. CB 1740.

On 23 August 2018, Mr Pacifico transferred $10,000 to the account provided to him by Mr Marino, which was a Heritage Bank account in Mr Marino’s name: CB 85, 166[159].

On 24 August 2018, Mr Marino sent an email to Mr Parrella, to which Mr Pacifico was copied, attaching two amended AMAs: CB 166[160], 1716. The forms of the AMAs appear at CB 1719-1734.

The covering email makes reference to certain changes that I will refer to. There is a form of the AMA in relation to the $200,000 amount at CB 1706-1713 which is signed by Mr Parrella: T 48.

Dr Baron Levi noted that the second attachment to the email appearing at CB 1716 (being the $10,000 AMA with Adelaide) cannot be found or identified as the relevant attachment: T 43.48. Nonetheless, it is not in dispute that such an agreement was attached and entered into.

Dr Baron Levi referred to an email from Mr Marino to Mr Pacifico and Mr Parrella dated 21 May 2019 (CB 2224-2227), in which Mr Marino relevantly set out the terms of a number of amended clauses in the signed AMA, being cll 2.1(c), (i), 3.1(a), (b), (c) and 3.5.1(e)(iii). The last-mentioned clause was set out by Mr Marino in the following terms (omitting Mr Marino’s comments):

On 27 August 2018, Mr Parrella arranged to transfer the sum of $200,000 to the Heritage Bank account in Mr Marino’s name: CB 85, 191[57].

On 25 September 2018, a document described as the “Investment Development Cooperation Agreement” between Diamonda Holdings NA LLC (Diamonda) (with an address at South Kensington, London) and Mr Marino (referred to as “FMO”) was executed (Diamonda investment agreement): CB 1760-1775, 1780-1795. It is signed by Mr Marino, who was noted as being located in Australia (CB 1794), and Mr Uriel Roth. The latter signed purportedly in his capacity as managing partner of Diamonda, and was noted as being located in Israel: CB 1795.

On 27 September 2018, Mr Marino sent an email to Mr Kamkolkar with a subject heading “257K Trade summary of conference call”. The email attached a summary of contact information in the signed Diamonda investment agreement: CB 1776.

That summary was titled “Contact People for this Trade” and listed five persons with various contact information, including email, telephone and other details. The five people were: Dr Nathan B Bregman, associated with “Sympatico”; Asif Amann, associated with “ppp-direct.com”; Jörg M Pohlig (spelt as Joerg in other evidence), associated with “Wwfnservice”; Mitesh Patel, associated with “Lycia Ltd”; and Stuart Priest, associated with “Century Capitol”: CB 1778.

It appears that there was also correspondence on 27 September 2018 between Mr Marino and at least two individuals purportedly connected to the Diamonda investment agreement: T 55-56. That correspondence was as follows.

There was an email from Dr Bregman (with an email address “@simpatico.ca”) to Mr Marino, copied to Mr Pohlig (with an email address “wwfnservice@yahoo.com”), with the subject line “INVESTMENT CONTRACT ISSUED FOR LEASED BG: 250M USA FROM FRANCESCO MARINO ... VIA NATHAN”. The content of the email was relevantly as follows (CB 1758):

The form and presentation of the email, as well as other aspects of the Diamonda investment agreement more broadly, have classical hallmarks of an investment scam which would ordinarily raise red flags. I consider these “red flags” further below in relation to the negligence claim against Mr Marino.

Mr Marino also sent the following email to Dr Bregman asking a number of questions about the Diamonda investment agreement (CB 1756-1757):

Later that day, Dr Bregman emailed to Mr Marino, copying Mr Pohlig, a “sanitized copy of the Insurance Liability Policy”: CB 1796.

On 28 September 2018, Mr Marino completed a form of telegraphic transfer document, naming Diamonda as the beneficiary of funds in the sum of $257,000 USD. The beneficiary details refer to Diamonda’s address in the United Kingdom, however the beneficiary bank is stated as Wells Fargo Bank in California: T 56; CB 1824. On the same date, there is an entry on Mr Marino’s Heritage Bank statement whereby it appears that funds (arguably including $210,000 AUD) were the subject of “Transfer to Foreign Currency” in the sum of “364,672.45”: CB 85.

On 29 September 2018, in response to Mr Marino’s previous email with his queries, Mr Pohlig simply stated (CB 1755):

On 30 September 2018, Mr Marino responded to Mr Pohlig and Dr Bregman as follows (CB 1755):

On 7 March 2019, Mr Polo sent an email to Mr Herro requesting him to direct any further information regarding hosting for the Oracle Law website to Mr Polo: CB 2016. This appears to have been the first time that Mr Polo made such a request. Mr Herro responded indicating that there was “no problem” in doing so. In his response, Mr Herro copied in Mr Marino at his Oracle Law email address: CB 2015-2016.

Later that day, Mr Marino responded to Mr Polo indicating that he was more than happy for Mr Polo to take over the hosting of the website, noting that he (Mr Marino) had paid for the initial setup costs and hosting since its establishment. However, Mr Marino requested that he be able to maintain his Oracle Law email address, due to the many important passwords and access codes that he had established with that email. While, in his reply email (CB 2013), Mr Polo indicated that they should put aside some time to discuss the matter, he accepted in cross-examination that he allowed Mr Marino to keep his Oracle Law email address based on the reasons Mr Marino had provided: T 262.25-.41.

At 6:54am on 26 March 2019, Mr Polo sent an email to Mr Marino (at his CBG email address) asking what he had been sending from his Oracle Law email without Mr Polo’s knowledge: CB 207[26], 209[44], 2022-2023, 2035.

At 9:18am, Mr Marino responded and gave some “explanation and answers” that were embedded in Mr Polo’s email in red: CB 2022-2023. Mr Polo’s initial email, together with Mr Marino’s responses (reflected in italics), consisted of the following:

Mr Polo sent a reply email to Mr Marino at 9:51am in the following terms (CB 2022):

The precise allegations to which Mr Polo was referring were not made clear on the hearing. In fact, Mr Polo said in cross-examination that he did not “suspect anything” and had “no concern” at the time: T 276.37-.29. He made up the fact that an inquiry had been made in order to find out that Mr Marino was not using the Oracle Law email for any other purpose, and was not alive at all to any risk that Mr Marino would use that email for any improper purpose: T 277.41-278.20. Mr Polo was apparently satisfied by the answers provided.

On 8 November 2019, the following correspondence took place between Mr Marino and Mr Herro regarding Mr Marino’s access to his Oracle Law email address:

Mr Jamieson asked Mr Marino about this correspondence. Mr Marino indicated that he understood that, at that time, Mr Polo wanted the Oracle Law domain name, and Mr Marino wished to maintain access to his Oracle Law email (T 369.45-370.43) because:

Mr Marino denied that he maintained virtually total control over the Oracle Law domain, emails and website. He indicated that he had access to, but not control of, his own Oracle Law email: T 370.45-371.15.

As at 23 June 2020, Mr Marino was still receiving emails from “admin@oraclelaw.com.au” and he requested that Mr Herro delete the diversion of these emails to his CBG email address: CB 2194.

As at 25 September 2020, the renewal invoice for the Oracle Law website domain was still being sent by Mr Herro to Mr Marino at his CBG email address: CB 2237-2238. On that day, Mr Herro sent an email to Mr Polo regarding the renewal, wanting to make sure that Mr Polo had been receiving the reminders; if it had not been renewed by the then due date (27 September 2020), the website and email would stop working.

Mr Herro further noted that the reminder emails had been going to Mr Marino, as the Oracle Law domain name was still in his account at that time: CB 2235-2236. In his reply of the same day, Mr Polo asked Mr Herro whether Mr Marino still had access to emails, including his Oracle Law email: CB 2235. In cross-examination, Mr Polo accepted that this was the first time that he had asked Mr Herro that question: T 281.23-.25. Mr Herro responded that Mr Marino did not have access to his Oracle Law email anymore, as Mr Marino had asked him to delete it on 13 June 2020: CB 2235.

Mr Polo accepted that he had not taken any steps after he largely ceased contact with Mr Marino in April 2018 to end Mr Marino’s access to his Oracle Law email address: T 281.38-.41. Mr Polo further accepted that he had not taken any steps to ensure that the account which held the Oracle Law domain name was transferred to him: T 280.44-.46.

Even as late as 13 to 27 September 2022, Mr Herro’s firm was still sending renewals for the Oracle Law domain name to Mr Marino and Mr Polo: CB 2534-2543.

In cross-examination, Mr Polo accepted that he should have taken control of Mr Marino’s Oracle Law email after they largely ceased contact in April 2018, and that a reasonable principal of a solicitor’s firm would have done so (T 242.38-243.25):

However, Mr Polo did not consider that his attitude towards Mr Marino’s possession and control of his Oracle Law email address was one of recklessness: T 283.33-.35.

Dr Baron Levi presented the case for the plaintiffs on the basis that the AMAs are in relevantly identical terms: T 29.12. Other than the names of the respective plaintiffs, the amounts provided, the “payout amount” and the “total to be paid”, that appears to be the case in relation to the draft documents.

I note that in the version of the AMA signed by Mr Parrella, there is a cl 7 titled “negative pledge” which does not appear in a version of the AMA signed by Mr Pacifico, however that clause has no relevance for present purposes. Some of the clause numbering is different in each of the AMAs, at least by reason of this. However, for the purposes of outlining the terms of the AMAs, it is convenient to use the agreement entered into and signed by Mr Parrella: CB 1706-1713.

The AMA is described as being between Mr Marino (“Francesco Marino”) as “Asset Manager” and Mr Parrella as “Capital Provider”. There are two recitals.

The first recital states inter alia that the asset manager is a provider of “asset management services”, and has “particular expertise” in investments in private equity and various other forms of financing and trading. At the end of the recital there is a note to the following effect:

Dr Baron Levi submitted that this statement was simply false. The investments were solicited in Australia and the funds were paid over in Australia: T 55.20-.28.

The second recital refers to the capital provider wishing to enter into an arrangement whereby:

The general structure of the AMA is set out in the following main clauses:

Following those clauses, there is a Schedule A titled “Schedule of Payments” and the execution clause.

Apart from the two parties to the AMA, being the asset manager and the capital provider, the agreement refers to a number of other persons, including a “paymaster” (referred to in cl 13 and the schedule of payments) and a “platform/trader” (referred to in cl 2.1(i)).

Dr Baron Levi identified particular aspects of the AMA as follows (POS [10]):

It is worth setting out cl 2.1(g) in full:

I refer to the terms of Schedule A below. The “platform” and “trader” are undefined terms and the entities or persons fulfilling those roles are not identified in the AMA.

On 27 September 2018, in an email from Mr Marino to Mr Kamkolkar shortly after the Diamonda investment agreement, Mr Marino stated that he needed to set up and pay for “Bentley Legal” as his “registered paymaster” and that he also needed to set up a new bank account with “DBS or Citi Bank = Singapore” for the collection of all profits: CB 1776.

The claims against Mr Polo were based upon certain provisions of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law), the Legal Profession Act 2007 (Qld) (LPA) and the Australian Solicitors Conduct Rules (Conduct Rules). I set out the relevant provisions below.

Sections 10 and 11 of the Uniform Law provide:

A “qualified entity” is defined in s 6 of the Uniform Law as follows:

Sections 34 and 35 of the Uniform Law provide:

Section 24 of the LPA relevantly provides (omitting subss (3A) to (3E), the statutory example provisions dealing with POA licensees and subs (7)):

Section 144 of the LPA provides:

Section 152 of the LPA provides:

Section 701 of the LPA provides:

“Australian legal practitioner” is defined in s 6(1) of the LPA as follows:

“Legal practice” per se is not defined in the LPA, other than for the purposes of Part 2.5. For the purposes of that Part, “legal practice” includes “the practice of foreign law in this jurisdiction by a foreign lawyer”: s 85 LPA.

Other terms, such as “engage in legal practice”, “law firm”, “law practice”, “legal services” and “unlawful operator” are defined in the Dictionary in Schedule 2 of the LPA:

The term “associate” (of a law practice) is defined in the Dictionary by reference to s 7(1) of the LPA, which states:

The Conduct Rules were first endorsed by Law Council of Australia Directors in June 2011. They were adopted as the professional conduct rules for solicitors in Queensland in June 2012 (see Exhibit P4) as the Australian Solicitors Conduct Rules, and in New South Wales from 1 July 2015 as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015: Law Council of Australia, “Australian Solicitors’ Conduct Rules” https://lawcouncil.au/policy-agenda/regulation-of-the-profession-and-ethics/australian-solicitors-conduct-rules accessed 24 April 2024.

Rule 36 of the Conduct Rules provides:

Rule 41 of the Conduct Rules provides:

The Conduct Rules, as at 27 May 2015 through to 31 March 2022 (Exhibit P6), were relevantly in the same terms as those in force in 2012.

Parts of the plaintiffs’ case focuses upon claims that Mr Marino represented to Mr Pacifico and Mr Parrella that he was a solicitor. This includes parts of the pleading as follows:

The pleading of the claims regarding Mr Marino connected representations of him being a solicitor and the owner of Oracle Law: CB 19[46(a)]. Further, Dr Baron Levi made reference to Mr Marino’s use of business cards as demonstrating that he was a type of representative of Oracle Law: e.g. T 438.36-.42.

The claims that Mr Marino represented that he was a solicitor are also pleaded as part of the plaintiffs’ case which seeks to make Mr Polo responsible for Mr Marino’s conduct under each of the four formulated claims against Mr Polo: CB 23[56]-26[63].

In his amended defence, Mr Marino denied that he stated at any material time that he was a solicitor or an employee of Oracle Law: CB 37[11(h)].

In that context, it is necessary to address the question of whether Mr Marino did represent himself to be a solicitor by the above-mentioned means, including statements, use of business cards and inferences from emails.

Dr Baron Levi submitted that the circumstances which led the plaintiffs to believe that Mr Marino was a lawyer included not simply the fact that Mr Marino said that he was a lawyer, but also that he had an Oracle Law business card and almost all of the emails which he had sent the plaintiffs were from his Oracle Law email address, as opposed to any alternative address: T 414.14-.18. It was further submitted that Mr Marino had engaged in activities which made the plaintiffs think that he was a lawyer: T 414.20-.21.

The high point of the evidence is that, in or about September 2016 when Mr Pacifico met Mr Marino at a restaurant on the Gold Coast, Mr Pacifico says that Mr Marino directly told him that he was a lawyer. According to Mr Pacifico, that conversation was relevantly as follows (CB 140[29]):

On the hearing, Mr Pacifico confirmed that this is what Mr Marino had told him on the night when he met Mr Marino: T 79.1-.22.

Specifically, Mr Pacifico stated in cross-examination that Mr Marino “said he was a lawyer”: T 79.22. Mr Pacifico also confirmed that Mr Marino had said “I’m a lawyer” rather than “I’m a lawyer with Oracle Law”: T 79.46-.48.

In his affidavit evidence, Mr Pacifico indicated that Mr Marino had said to him that he owned Oracle Law: CB 145[59]. Precisely when that statement was made is not clear from Mr Pacifico’s affidavit. In context, it appears to have been sometime between September 2016 and 16 December 2016: CB 145[59].

Mr Pacifico was cross-examined about his involvement with Mr Mackay and it was suggested to him by Mr Jamieson that Mr Polo was the solicitor acting on the sale of the Chinderah properties: T 77.50-78.1, 78.26. Mr Pacifico was seemingly unaware that Mr Polo had been acting for Mr Mackay and MEG in relation to his properties at Chinderah: T 78.2, 78.27. Rather, Mr Pacifico stated that “we engaged Frank to speak to Hughie because we thought he was a lawyer”: T 82.25-.26. Mr Pacifico believed or assumed that Mr Marino was acting for him and that Mr Barbi was acting for Mr Mackay (and MEG): T 77.30-78.41. Mr Pacifico stated that Mr Marino had even said to Mr Barbi that he was Mr Pacifico’s solicitor: T 78.38-.39. However, later in his cross-examination, Mr Pacifico appeared to be unsure of the involvement of Mr Barbi, despite the fact that he had mentioned Mr Barbi in his affidavit (CB 154[104]): T 98.14-.29.

Mr Jamieson put to Mr Pacifico that all that Mr Marino was trying to do for him, in making his arrangements in respect of the monies Mr Pacifico had lent to Mr Mackay, was to organise to free up funds relating to the sale of the Chinderah properties. However, this was denied by Mr Pacifico, indicating that he understood that Mr Marino was acting for him and “it was him [Mr Marino] who said that to the lawyers”: T 81.37-82.2, 82.48-83.22.

In respect of Mr Parrella, his affidavit evidence does not refer to any direct statement by Mr Marino that he was a lawyer. Rather, Mr Parrella deposed that, during their second meeting in around late July 2018 about the investment proposal, Mr Marino had said “I own Oracle Law”: CB 184[22]. As a result of such statements and the fact that Mr Marino was providing him and Mr Pacifico with legal documents which Mr Marino had amended (which apparently all contained the letterhead of Oracle Law), Mr Parrella stated that he believed that Mr Marino was a lawyer: CB 184[23].

It appears that Mr Parrella was not directly told by Mr Marino that he was a lawyer, rather Mr Parrella assumed that Mr Marino was a lawyer as “he came across as the owner of Oracle Law”: T 117.50-118.1. Mr Parrella indicated that Mr Marino had shown him his Oracle Law business card, and that Mr Marino “did say vaguely that he was a solicitor, that he did prepare all the paperwork for the contract that we … signed”: T 118 .30-.32; see also T 411.

In relation to Mr Parrella’s state of mind at the time of the investment proposal, his cross-examination relevantly continued as follows (T 122.28-.36, 124.6-.20, 127.34-128.15):

I accept that at the time Mr Pacifico first met Mr Marino, Mr Marino gave him two separate business cards: CB 2701-2702; Exhibit P2; T 109.49-110.18, 112.29-113.19.

On the front of the first card (CB 2701), one finds on the left-hand side the Oracle Law logo with details of the Horsley Park Sydney office underneath it, and on the right-hand side the words “Frank Marino Business Development Manager” with Mr Marino’s contact details, including his Oracle Law email address, and the address of the Mermaid Beach office premises directly underneath. At the bottom right are the words “Law Made Simple”. On the obverse side is simply a large Oracle Law logo with the Oracle Law website details underneath.

There is a separate business card depicted at CB 2702 which contains the Oracle Law logo and sets out the services provided by Oracle Law.

Mr Marino had another Oracle Law business card which also contained the title “Business Development Manager”: CB 2695.

Mr Marino also had a business card for CBG in which he was referred to as the “CEO Founder”: Exhibit D2.

Dr Baron Levi spent a considerable amount of time referring to emails from which, he submitted, it could be inferred that Mr Marino purported to act in relation to legal matters and purported to provide legal services: e.g. T 39.5-.7.

As an example of this, Dr Baron Levi referred to an email which Mr Marino had sent to Mr Pacifico on 16 August 2018, from his Oracle Law email address, with the subject line “notes for you [sic] meeting..”: CB 1547; T 38-39. The email was evidently in relation to a meeting which Mr Pacifico was going to have with someone called “Andrew” regarding Pharma Active. Part of Mr Marino’s notes included the following:

First, concerning statements, I have referred above to the evidence of Mr Pacifico and Mr Parrella regarding Mr Marino’s statements that he was a lawyer. I accept Mr Pacifico’s evidence that Mr Marino stated “I’m a lawyer”. I accept Mr Parrella’s evidence that Mr Marino “vaguely” stated that he was a solicitor.

In relation to Mr Pacifico’s evidence that he understood that Mr Polo originally worked for Mr Marino and would assist Mr Marino in matters, and that Mr Polo was subsequently sacked by Mr Marino, Mr Jamieson submitted that Mr Pacifico was just confused as to matters: T 444. Mr Jamieson’s submission that the “sacking” statement from Mr Marino was two months before Mr Pacifico speaking with Mr Polo about Pharma Active is incorrect: see CB 152[93], [103].

Mr Pacifico’s affidavit suggests that Mr Marino had informed him that he had sacked Mr Polo on or about 19 July 2017, or in any event at least prior to 15 August 2017: CB 154[101]-[103].

Mr Pacifico gave evidence that Mr Marino had told him Mr Polo was “sacked” from Oracle Law because he was “hopeless”: T 87.15-.19. In substance, Mr Pacifico appears to have understood that Mr Polo was sacked from working for Mr Marino and indeed had “in fact been turfed out of Oracle Law”: T 87.21-.46. Mr Pacifico had no more dealings with Mr Polo after he understood that Mr Polo had been “terminated”: T 87.48-88.9.

Mr Pacifico appears to have had some confusion about the timing of when Mr Polo was sacked in relation to when he had entered into the AMA: T 88.5-.25. Part of the confusion was that Mr Pacifico had seen Mr Polo’s name on the Second PA Deed and was seemingly unsure about the timing of that: T 88.24-89.48, 91.20-94.24. However, he appears to believe that Mr Marino only told him about the sacking once: T 100.30-.32. Ultimately, Mr Pacifico appears to have accepted that he was told in 2017: T 107.22-.24.

The purported sacking, in context, appears to have been connected with Mr Mackay changing solicitors.

On balance, I am satisfied that Mr Pacifico was informed of the sacking on or about 19 July 2017, or in any event at least prior to 15 August 2017, and acted on the basis that Mr Polo was not connected with Oracle Law: T 87.21-.46.

Secondly, regarding business cards, whilst Mr Marino’s Oracle Law business card associated him with Oracle Law, it did not of itself contain any representation that Mr Marino was a lawyer or a solicitor.

Thirdly, the inferences sought to be drawn from Mr Marino’s emails to Mr Pacifico and Mr Parrella were problematic. Dr Baron Levi appeared to indicate that the fact that Mr Marino sent emails from his Oracle Law email address to Mr Pacifico and Mr Parrella formed part of the conduct by which there was a holding out that Mr Marino was not an employee but, in some instances, a lawyer of Oracle Law: T 72.33-74.29, especially 73.47-.49.

Mr Parrella did not say that he believed that Mr Marino was a lawyer because of emails sent to him by Mr Marino. Nor did Mr Parrella identify particular content of any such email sent by Mr Marino as being a material part of his belief that Mr Marino was a lawyer.

The closest that Mr Parrella came to addressing emails as being part of his belief was seemingly in the following exchange with Mr Jamieson about investigating the investment proposal (T 121.15-.34):

Dr Baron Levi’s submissions regarding what could be drawn from email correspondence require some careful consideration.

There are no instances where Mr Marino is identified within correspondence with the word “solicitor” or “lawyer” expressly associated with his name, at least in the email signatures: T 26.14-.18, 411.43-.49, 414.35-415.1.

Dr Baron Levi submitted that there were emails emanating from Mr Marino which gave the appearance “to any reasonable observer” that he was acting as a solicitor: T 411.45-.47.

For the purposes of the claims against the defendants, it seems to me that it is unhelpful to look generally at the massive email correspondence that emanated from Mr Marino using his Oracle Law email address over many years, much of which had no connection to the plaintiffs. Rather, one ought to focus more particularly upon the email correspondence that took place between Mr Marino, Mr Pacifico and Mr Parrella prior to their entry into the AMAs.

However, Dr Baron Levi did not attempt to isolate the emails in this way, and the rather disorderly form of the Court Book did not readily permit me to identify precisely what emails were sent between Mr Marino, Mr Pacifico and Mr Parrella prior to their entry into the AMAs.

Between September 2016 and late August 2018, it appears that Mr Marino had sent only four emails from his Oracle Law email address to which both Mr Pacifico and Mr Parrella were either the direct recipient or copied in. Those four emails are set out in the table below.

With one exception which I note below, none of the emails specifically intimate that Mr Marino is acting in the capacity of a lawyer. Indeed, Mr Marino’s signature in each of these emails is “FRANK MARINO – BDM”. As far as I can gauge, these four emails appear to be the extent of emails received by Mr Parrella from Mr Marino during this period. While Mr Marino had sent various other emails to Mr Pacifico from his Oracle Law email address during this period, Mr Pacifico never identified any email in particular which he said caused him to believe that Mr Marino was a lawyer, or which reinforced that belief.

Of significance is the fact that one of the documents attached to Mr Marino’s email on 3 August 2018, being “PAGE 6 of 18” (CB 1535), is in the following terms:

In context, I consider that that page (CB 1535) amounted to a representation that Mr Marino purported to be a legal advisor with Oracle Law.

However, importantly, neither Mr Pacifico nor Mr Parrella asserted in their affidavit evidence, or during their cross-examination, that there was any particular email which they had received from Mr Marino which gave them the impression that Mr Marino was a lawyer carrying out a form of legal work.

In a sense, there is little utility in commenting upon email correspondence in a context where neither Mr Pacifico nor Mr Parrella have pointed to anything specific in email correspondence sent to them by Mr Marino which gave them the impression that Mr Marino was a lawyer carrying out a form of legal work.

The choices of meaning which the Macquarie Dictionary, online ed ascribes to the noun “client”, leaving aside ancient etymology and more remote meanings, include:

The first meaning identifies “client” in the sense of a person who engages a solicitor for a specific purpose (such as advice or a cause).

The Encyclopaedic Australian Legal Dictionary (LexisNexis) defines “client” as:

It adds, arguably by way of comment rather than by definition, that “[t]he relationship between a legal practitioner and client is a fiduciary one and communications between them may attract legal professional privilege”.

In defining “client”, the initial Butterworths Australian Legal Dictionary included the sentence I have extracted above, but added the words “and any other person who is liable to pay a solicitor’s costs”: Butterworths Australian Legal Dictionary (1997, Butterworths) at 202.

Halsbury’s Laws of Australia does not expressly define “client”. However, within the chapter dealing with “Legal Practitioners”, and in particular the part dealing with the “Lawyer-Client Relationship” authored by G E Dal Pont, Dal Pont identifies a client by reference to the existence of a relationship of “retainer”. Specifically, Dal Pont points to a “client” as being someone (a) to whom the lawyer owes legal duties, (b) from whom the lawyer looks for authority to act and (c) from whom the lawyer looks for the payment of costs and disbursements (unless the retainer provides otherwise): Halsbury's Laws of Australia (Halsbury’s), 250 – Legal Practitioners at [250-1025].

Thus, the answer to the question of whether one is a client of a solicitor involves the task of determining the existence and terms of a retainer: Halsbury’s at [250-1025]. The retainer identifies the client and prescribes the services expected: G E Dal Pont, Lawyers’ Professional Responsibility (7th ed, 2021, Lawbook Co) (Lawyers’ Professional Responsibility) at [3.20]. Where there is no express written or oral retainer, one may be implied from the circumstances, including by conduct: Lawyers’ Professional Responsibility at [3.50]; Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408 (Beach Petroleum) at [210].

An implied retainer will only arise where, on an objective consideration of all the circumstances, the parties’ intention to enter into a contractual relationship may be imputed: A Abadee et al, Professional Liability in Australia (4th ed, 2023, Lawbook Co) (Professional Liability in Australia) at 468 [3.120]; Dean v Allin & Watts (a firm) [2001] EWCA Civ 758 at [22] per Lightman J; Jeandin v Tzovaras [2011] NSWSC 1254 at [64] per McDougall J; Girotto v Phillips Fox (a firm) [2011] VSC 293 at [288] per Hollingworth J.

A solicitor-client relationship may be inferred if it is proved that the relationship existed “de facto” between the solicitor and another person: Professional Liability in Australia at 468 [3.120]. In McDonald v Grech; Bank of Western Australia Ltd v McDonald [2012] NSWSC 717 at [80], Ward J (as her Honour then was) noted as follows:

In Geraghty v Permanent Trustee Co Ltd (1986) 4 NSWLR 412, Kearney J adopted the description of Begbie CJ in Drake & Jackson v Corporation of Victoria (1884) 1 BCR 165 at 169 as to the effect of a general retainer (at 415-416):

However, the notion of a “general retainer”, in terms of the duties that it may impose upon a solicitor, has been questioned. In Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 (Midland Bank Trust), Oliver J stated at 402:

In Carmody v Priestley & Morris Perth Pty Ltd (2005) 30 WAR 318; [2005] WASC 120 (Carmody), Hasluck J referred to Midland Bank Trust approvingly and stated further (at [119], in the context of accountants):

Despite the plaintiffs’ amended statement of claim alluding (as I have indicated above) to the plaintiffs being either clients or potential clients of Mr Polo or Oracle Law, no serious attempt was made by the plaintiffs’ representatives to identify, the terms, scope or even existence of a retainer with Mr Polo or Oracle Law.

That leaves me in a somewhat invidious position in terms of my ability to make any findings in respect of any solicitor-client relationship between the plaintiffs and Mr Polo.

The evidence only disclosed two matters in which there was a form of association or connection between Mr Polo and the plaintiffs (albeit, even then, only Adelaide), namely the Mr Mackay/MEG matter and the Mr Elovaris/Pharma Active matter.

Mr Polo deposes that, in November 2016, Mr Marino introduced him to Mr Mackay (whose name he spells “Mckay”) for a conveyance: CB 208[34]. Specifically, Mr Polo says:

There are a number of examples in evidence of Mr Marino emailing Mr Mackay to obtain instructions and update him on the matter’s progress, which Mr Polo said was done on his direction and because Mr Marino knew Mr Mackay: e.g. CB 957; T 213.10-.37.

Mr Pacifico believed that Mr Marino was acting for him and it was another solicitor (who seems to be Mr Barbi) who was acting for Mr Mackay: T 78.30-.41. He asserted in evidence that he “engaged” Mr Marino (T 82.25) to speak to Mr Mackay and Mr Pacifico believed Mr Marino “was acting for” him (T 81.42). When asked whether there was any actual retainer document from Mr Marino, Mr Pacifico pointed to invoices sent by Mr Marino to him in relation to that work (eg CB 1211), as opposed to any retainer document, as evidence that Mr Marino was acting as his lawyer for those matters: T 83.40-84.2.

Mr Pacifico knew that Mr Polo (or Oracle Law) was acting for Mr Mackay at some point: T 87.17-.18.

In July 2017, Mr Polo says that he provided advice on caveat release to Mr Mackay in relation to the encumbrance on title (in context, seemingly in relation to the Chinderah properties), and that the advice was in respect of the steps outlined by the caveator for release of the caveat: CB 208[35].

Mr Polo stated that Mr Mackay terminated his services because he disagreed with what Mr Polo had advised him to do, although the precise time of the termination is unclear: CB 292.43-293.3.

Significantly, Mr Polo states that he has no knowledge of any other advice provided to Mr Mackay and at no time did he provide instructions to Mr Pacifico (or Adelaide) with respect to the caveat on title: CB 208[35]. In re-examination, Mr Polo denied that Oracle Law ever acted for Mr Pacifico in terms of recovery of a debt, nor did anyone else act for Mr Pacifico as far as he was aware: T 291.47-292.2. Mr Polo deposes that he does not have any file relating to “the loan arrangements and deeds”: CB 208[36]. Mr Polo was seemingly referring to those between Mr Pacifico, Mr Mackay and their related entities.

At some point, although it is not precisely clear when, Mr Pacifico says that he attended the Oracle Law office premises at Mermaid Beach with Mr Mackay: T 95.45-96.13. Mr Pacifico did not see Mr Polo in the office on that occasion.

In May 2017, Mr Marino sent Mr Pacifico and Mr Mackay an invoice (which I have referred to above as invoice 70) for “legal services” he had provided up to that point, to be paid by Mr Mackay: CB 1209-1211. The invoice items include work referable to the preparation of loan agreements and other documents.

Mr Polo deposes that at no time did he instruct Mr Marino to duplicate the firm invoices to invoice for legal services with alternate banking particulars, and if an invoice was to be issued it would have been generated by the firm with the firm’s banking details: CB 208[37]. The invoice’s payee details are to an account with Heritage Bank, which Mr Polo understands was Mr Marino’s and not associated with Oracle Law: T 293.35-.45. Mr Polo contends that none of the monies payable on this invoice came to him or Oracle Law: T 294.12-.14.

Thus, in relation to the matter with Mr Mackay and MEG, there appears to be a distinction to be made between work which Mr Polo did solely for Mr Mackay and his entities, which pertained to conveyancing issues with the sale of his properties, and work which Mr Marino purportedly performed in negotiating the terms of the loan arrangements between Mr Pacifico, Mr Mackay and their related entities.

In relation to the matter with Pharma Active, Mr Polo’s evidence is that he negotiated terms of settlement with its receiver: T 230. In particular, there is an invoice in evidence dated 13 September 2017 in the amount of $7,000, which I have referred to above as the September 2017 PA Polo amended tax invoice: CB 1347. The invoice was addressed to Pharma Active and, in October 2017, Mr Polo followed up Mr Pyrlis from Pharma Active seeking payment of the invoice: CB 1346. In cross-examination, Mr Polo accepted that this was his invoice: T 229.40.

The invoice is referred to as an “amended invoice” and is said to be further to Mr Marino’s attendance in Sydney: CB 1346. However, Mr Polo denied that the amended invoice included Mr Marino’s time spent in relation to the matter, and he did not believe that Mr Marino was involved in negotiating the terms of settlement: T T230.6-.18. The original invoice is not in evidence.

Mr Polo stated that he “spent a lot of time on this matter”, with almost days spent on the telephone dealing with the owner of Pharma Active and the receiver: T 230.39-.41.

Mr Marino also created an invoice in relation to the Pharma Active matter dated 13 September 2017, in the amount of $10,000, which I have referred to above as the September 2017 PA Marino tax invoice: CB 1353. The payee details are to a “Debt Options Pty Ltd Trust Account”, and the reference is to Mr Marino’s Oracle Law email. The description is for “professional consulting fees” in relation to the matter. It is not clear whether the amount contained in this invoice is inclusive of the $7,000 invoiced by Mr Polo.

Mr Jamieson submitted that the September 2017 PA Polo amended invoice, properly construed, does not demonstrate that any work is being charged for the services of Mr Marino: T 447.27-.50.

Dr Baron Levi cross-examined Mr Polo regarding the September 2017 PA amended tax invoice email (CB 1346) and the September 2017 PA Polo amended tax invoice (CB 1347). He put it to Mr Polo that the invoice was amended to include Mr Marino’s time in relation to the matter, and specifically time that Mr Marino had spent during an attendance in Sydney. Mr Polo denied that the invoice included any fee for Mr Marino: T 229.16-230.23. Mr Polo asserted that the invoice for $7,000 “related to my matter, the time that I spent on the matter”: T 229.38-230.8.

The following day, Dr Baron Levi cross-examined Mr Marino regarding the same September 2017 PA Polo amended tax invoice (albeit on a different Court Book page, namely CB 1357). When asked whether the invoice incorporated fees for his time, Mr Marino stated “I didn’t prepare the invoice. I’m unaware if it did”: T 304.50. When pressed as to whether it incorporated an amount relating to his time, Mr Marino indicated “[n]ot to my knowledge, no”: T 305.1-.11.

Despite Dr Baron Levi’s submission otherwise (T 419.32-420.48), I accept Mr Jamieson’s submission that the September 2017 PA Polo amended invoice, properly construed, does not demonstrate that any work is being charged for the services of Mr Marino.

In what appears to be around July 2017, Mr Pacifico says that he had telephone conversations with Mr Polo about the matter while Mr Marino was overseas: CB 152[90]-[93]; T 77.22-.28. This appears to be the extent of Mr Pacifico’s direct contact with Mr Polo, and Mr Pacifico accepted that he had no other discussions with Mr Polo other than about the Pharma Active matter: T 112.20-.23.

However, none of those matters allow any proper finding of a retainer with Mr Polo, nor any finding as to the scope of any such retainer or the identification of any duties which would cover the subject matter of the investment proposal or the AMAs, outside any agency relationship with Mr Marino. I note the following.

The prerequisite of a retainer to determine whether one can properly be said to be a client of a solicitor immediately creates several problems for imposing liability on Mr Polo for the loss suffered by the plaintiffs in entering into the AMAs.

First, there was no express written or oral retainer pleaded on behalf of the plaintiffs.

Secondly, no implied retainer was pleaded. What was pleaded was that Mr Marino represented to Mr Pacifico and Mr Parrella that he was a solicitor and that Mr Marino “provided legal services and advices” for Mr Pacifico in relation to certain caveat and loan agreement matters: CB 5[10(e)]. Those matters had no connection with the AMAs.

Thirdly, the plaintiffs did not plead that Mr Marino was an agent of Mr Polo (and thereby Oracle Law), only that Mr Marino “is and was at all material times an employee or office holder of Oracle Law”: CB 5[9]. There is “no identity in Australian law between agency and employment”: G E Dal Pont, Law of Agency (4th ed, 2020, LexisNexis) (Law of Agency) at [2.19]. That is, agency and employment are distinct concepts. An employee is not necessarily an agent nor vice versa.

Dr Baron Levi made several submissions which broadly alluded to the fact that Mr Polo had “cloaked” Mr Marino with “ostensible authority” which seemingly extended to an apparent authority to establish and operate an investment scheme with the endorsement of Oracle Law: POS [105]-[109], [116], [118]; T 439.38-.41, 449.30-.37. However, that submission was predominantly in respect of Mr Polo’s alleged vicarious liability, rather than any legal relationship of agency between Mr Marino and Mr Polo. As agency was not pleaded, nor listed as an issue, there is no proper basis on which to make a finding that Mr Marino was an agent of Mr Polo and/or Oracle Law such that any retainer entered into by Mr Marino was on behalf of Oracle Law.

In all of the above circumstances, it is very difficult for me to make any positive finding that, at any given point of time, the plaintiffs were clients of Oracle Law or Mr Polo in any relevant sense, and even more so in the period after April 2018.

In circumstances where Dr Baron Levi did not make specific submissions regarding any express retainer nor seek to identify any point of time at which it was said that any implied retainer was created or subsisted, I do not consider that I can fairly make a finding that the plaintiffs were clients of Oracle Law or Mr Polo after April 2018. To attempt to guess at how the case could be put, and to make any finding on that basis, I consider would be procedurally unfair to Mr Polo.

I propose to proceed on the basis that the plaintiffs were not clients of Oracle Law or Mr Polo after April 2018, and certainly not at the time of the alleged representations by Mr Marino and entry by the plaintiffs into the AMAs.

Depending on the facts, an association or relationship between two or more parties may be potentially characterised for legal purposes in a number of different ways which are not necessarily mutually exclusive.

The relationship or association between the plaintiffs and Mr Marino, and Mr Marino’s conduct, was used by the plaintiffs as a means to attempt to sheet home liability to Mr Polo.

The relationship between Mr Marino and Mr Polo changed over time and thus defied any enduring definition. Thus, one could not say that for the purposes of assessing Mr Polo’s liability, the connections between Mr Marino and Mr Polo were the cumulative total of their interactions over time. Rather, it is necessary to look at their relationship in a more nuanced, task and time-specific way.

Until early 2018, Mr Polo and Mr Marino were quite close and their relationship went beyond what one might consider to be a professional one.

At least by August 2016, each of Mr Marino and Mr Polo would refer to one another on occasion as “Bello”, as an affectionate form of Italian greeting: e.g. CB 806. There was a period of several months in 2017 in which Mr Polo lived with Mr Marino and his partner when Mr Polo had separated with his wife: CB 206[20]. Mr Polo also acted for Mr Marino for a short time in his family law proceedings: CB 207[23].

Unbeknownst (initially) to Mr Polo, Mr Marino had represented to the National Australia Bank that he had a “50% interest” in Oracle Law, which had formed part of the evidence in Mr Marino’s family law proceedings: CB 207[24]; T 138.45-.50.

In around 2015 or 2016, but possibly earlier, Mr Polo became aware of this matter and required Mr Marino to issue a retracting affidavit correcting that evidence: T 139.3-.19. He deposed that he “was very disappointed” at Mr Marino’s conduct in this regard and their friendship suffered, as Mr Marino had done this behind Mr Polo’s back and without telling Mr Polo that he had done so: CB 207[24].

Mr Polo accepted that Mr Marino’s attempt to pass himself off as a 50% owner of Oracle Law to the National Australia Bank was an act of dishonesty on Mr Marino’s part, though he was not prepared to say that it was an act of fraud: T 139.31-.37. However, Mr Polo believed that Mr Marino would not “do anything wrong” afterwards: T 282.24-.26.

Mr Polo attempted to convey that Mr Marino’s involvement in Oracle Law, if any, was limited to sharing an office space (starting from late 2014) in circumstances where Mr Polo and Mr Marino each worked on their own respective businesses (being Oracle Law and CBG) in different parts of the office: T 142.8-.33. In this way, Mr Polo said that Mr Marino did not have involvement in the “day-to-day operation of Oracle Law”: T 142.37.

However, on the other hand, Mr Polo also gave evidence that the arrangement between him and Mr Marino was as follows (CB 207-208[29]-[31]):

Mr Polo asserted that he worked in the front of the office premises and Mr Marino worked in the back of the office premises, they had separate businesses and neither of them was involved in the other’s business. In particular, Mr Polo indicated that Mr Marino had no involvement in the day-to-day operations of Oracle Law other than referring conveyancing matters to Oracle Law: T 144.9-.34. He indicated that Mr Marino had an expectation of receiving some free legal services to himself personally and to his business. He denied that there was any remuneration of any kind: T 145.16-.43.

Mr Marino described his role as basically to “bring in business” (I infer to Mr Polo) and indicated that there was a type of “contra” [1] whereby Mr Polo did conveyancing work for Mr Marino’s real estate business (I infer CBG): T 302.44-303.9.

Mr Polo stated that Mr Marino did work “under the banner of Oracle Law” which was “around referring matters” to Mr Polo: T 145.45-146.28.

Part of Mr Marino’s work in Oracle Law involved communicating with the clients he had referred “to obtain information” which Mr Polo had requested, or otherwise update the clients, which he did with his Oracle Law email address and which Mr Polo accepted was as a “representative” of Oracle Law: T 147.44-148.24; e.g. CB 904, 957; T 208.9-.39, 213.10-.37. Such clients also emailed Mr Marino directly with questions: e.g. CB 961; T 216.3-.8. At times, Mr Polo indicated that Mr Marino would also be acting as the client’s real estate agent when using his Oracle Law email: e.g. T 220.6-.21, 225.6-.10.

During cross-examination, Mr Polo was taken to a without prejudice email dated 18 July 2017 from Mr Marino to Mr Mackay, to which Mr Polo was copied, wherein Mr Marino had the email signature “FRANK MARINO – BDM”: CB 1040. Mr Polo was questioned about the impression that such a description would have on recipients of Mr Marino’s emails and, relatedly, whether Mr Marino appeared to be a representative or agent of Oracle Law.

Subsequently, Dr Baron Levi attempted to draw an equivalence between representative and agent. The following exchange took place (T 233.22-.35):

Clearly there was at certain times a form of close professional relationship as between Mr Polo and Mr Marino.

Mr Polo denied that Mr Marino was involved in any way in the management or administration of Oracle Law: T 149.34-.38.

For the period up to 2014, that appears to be the case. In this early period, Mr Marino’s involvement included instances of him sourcing a photocopier for the office (T 150.6-.8), being named as one of the insured, along with Mr Polo, on insurance policies for the office premises (CB 756), organising the purchase of promotional Oracle Law shirts (CB 766-767; T 179.33-180.27), and arranging Oracle Law signage for the premises (e.g. CB 771-775) and merchant facilities in connection with the Oracle Law website: CB 717, 722.

However, my impression is that that particular kind of involvement was limited to a period no later than up to the end of 2014.

I am comfortably satisfied that at least up until the termination of the lease in March 2018, despite Mr Polo’s suggestions that Mr Marino was conducting his business and that he (as a sole practitioner) was conducting his own business, that Mr Polo allowed Mr Marino to represent himself as being associated with Oracle Law.

There are aspects of that representation that one might think would amount to a form of agency. Mr Polo appeared to accept that that was the case for “certain purposes” as I have noted above (T 233.22-.35). Those purposes appear to have been in relation to client matters which Mr Marino had referred: T 203. The evidence as to whether Mr Marino was an agent of Oracle Law did not venture beyond the above.

Mr Marino also gave evidence that he considered he had a “general authority” from Mr Polo to pursue business opportunities under the Oracle Law name, but that did not include investments in trading platforms: T 337.32-.40.

However, no case of agency was pleaded. As such, I need not make any finding as to whether Mr Marino was an agent of Oracle Law.

What I have set out above is the extent of the evidence as to the actual relationship that existed between Mr Polo and Mr Marino. Significantly, other than pleading that Mr Marino was an “employee” or “officeholder” of Oracle Law, the plaintiffs did not expressly plead that a contract existed between Mr Marino and Mr Polo. To the extent that such a pleading could be inferred from the pleading that Mr Marino was an “employee” or “officeholder”, there were no pleadings as to the terms of any contract. No direct attempts were made on the hearing to establish the necessary elements of the formation and content of any contract between Mr Polo and Mr Marino in respect of the work at Oracle Law.

I have referred above to the verbal arrangement or understanding that arose between Mr Marino and Mr Polo whereby, inter alia, Mr Marino would refer clients to Oracle Law and Mr Polo would provide some form of gratuitous legal services to Mr Marino and his business. I consider that, in that arrangement, there was a form of intended mutual benefit in a practical sense.

However, it is not at all apparent to me that Mr Marino and Mr Polo intended to be legally bound by virtue of that arrangement. There is no suggestion that there was a voluntary assumption of a legally enforceable duty, being the essence of contract: Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 457 per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ; [1954] HCA 20, cited in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous) at [24] per Gaudron, McHugh, Hayne and Callinan JJ. Intention to create legal relations, objectively determined, is a necessary element: Ermogenous at [24]-[25]; Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196 at [147] per Griffiths AJA (White and Kirk JJA agreeing).

There is no evidence that Mr Marino promised to refer a certain number of clients to Mr Polo in any given period, nor that Mr Polo promised to deliver any specific or regular legal services to Mr Marino. From what can be gauged by the case studies of the matters with Mr Mackay/MEG and Pharma Active, the arrangement between Mr Marino and Mr Polo appeared to only be ad hoc such that, if Mr Marino came across a client who was potentially in need of some legal work, he may refer them to Mr Polo. There was no specific evidence as to what legal services Mr Polo provided to Mr Marino, and I infer that such services were provided only on an ad hoc basis when the occasion arose. From this, I conclude that neither party intended to have assumed a legally enforceable duty. If either party decided to stop “performing” their arrangement, the other would not be entitled to sue for breach. So much is apparent from the way in which Mr Marino and Mr Polo parted ways in early 2018.

As such, I conclude that the relationship between Mr Marino and Mr Polo in respect of the work of Oracle Law was not one of a contractual nature.

In Legal Services Commissioner v Raghoobar [2023] QSC 41 (Raghoobar), Martin SJA addressed the issue of what is meant by “engaging in legal practice” at [5]-[13] (footnotes omitted):

An appeal to the Queensland Court of Appeal was dismissed in Raghoobar v Legal Services Commissioner [2023] QCA 191. Relevantly, Bowskill CJ (with whom Dalton JA and Buss AJA agreed) stated at [17]:

However, I note that provisions of the kind relied upon by the plaintiffs under the LPA and Uniform Law have not been readily construed as preventing a solicitor from delegating “purely ministerial” tasks to unqualified persons: e.g. Cornall v Nagle [1995] 2 VR 188 (Cornall) at 199 per J D Phillips J, citing Associated Securities Ltd v Aziz [1974] VR 699 at 709 per Pape J.

Dr Baron Levi submitted that a person in the position of Mr Marino (who was not admitted to practise) may engage in legal practice, at least factually, in a number of ways, including by doing something (POS [73]-[74]):

Dr Baron Levi submitted that Mr Marino performed or engaged in legal practice, contrary to s 10(1) of the Uniform Law and s 24(1) of the LPA (POS [72]; T 440-441), citing Cornall at 210 and Raghoobar: POS [74].

During the hearing, Dr Baron Levi directed my attention to an array of email correspondence said to evidence instances of Mr Marino providing legal services and cross-examined both Mr Marino and Mr Polo in relation to a number of those instances, as well as others.

The main instances which were relied upon by the plaintiffs of Mr Marino purportedly providing legal services were said to be in the preparation of loan agreements and advices in relation to caveats.

The particulars of the plaintiffs’ pleading (CB 5[10(e)]) addressed the ways in which it was said that Mr Marino “provided legal services and advices” for Mr Pacifico, namely:

Dr Baron Levi submitted that, with Mr Polo’s knowledge, Mr Marino was involved in multiple client matters in a manner in which it appeared that he was a professional engaged in those matters, but in circumstances where the explanation could not be that Mr Marino was a real estate agent or a conveyancer because he was engaged by the law firm. Indeed, he submitted that it was significant that, in relation to a number of the communications, it was unclear to Mr Polo himself in what capacity Mr Marino was acting: T 415.27-.44, 417.23-.27.

He cited, as an example, an email sent from Mr Mackay to Mr Marino on 4 January 2017 regarding an offer on one of the Chinderah properties: CB 904-905. The email states:

Dr Baron Levi submitted that this demonstrated that Mr Marino was being emailed in the capacity of a lawyer: T 416. I am not convinced that that is the only available inference arising from this email.

Another example given by Dr Baron Levi related to an email dated 3 February 2017 sent by Adam Smith of Planit Consulting to both Mr Polo and Mr Marino, copied to Mr Mackay and Darren Jones (a real estate agent with Ray White). The email related to what was then a proposed purchase of one of the Chinderah properties (see CB 903, 959). The email had a subject “changes to contracts” and stated (CB 955-956):

Dr Baron Levi submitted that the email shows that Mr Marino was engaged generally in the sort of communications in which one might expect a lawyer to be engaged, and that the communications were being sent to him as well as to Mr Polo: T 416.25-.44. Even if I accept that as a possibility, I am not convinced that that is the only available inference arising from this email.

A further example relied upon was an email dated 8 February 2017 from Mr Marino to Sandra Pepi of Benchmark Wealth, Mr Pyne of Ramsden Law and Mr Polo (and copied to various other persons), relating to the purchase/sale of a property at Cessnock. In response to Ms Pepi’s earlier email asking if settlement will take place that day, Mr Marino’s email states (CB 959):

Dr Baron Levi submitted that this was one of numerous emails in which, simply to an objective observer, the role of Mr Marino is highly ambiguous: T 417.23-.25.

Mr Jamieson submitted that the arrangements established between Mr Polo and Mr Marino in or about late 2014 were in a context in which Mr Marino was a real estate agent who had contacts and was able to refer conveyancing matters to Mr Polo, and Mr Polo used Mr Marino’s assistance as a business development manager to bring in work to him for his new practice: T 446.42-.50. At the time of those discussions, Mr Marino was working under the CBG label and had a different business card and business address (Exhibit D2), and there was no suggestion that they would do anything other than share the office premises: T 447.8-.19.

Mr Jamieson submitted that the appropriate context for assessing the plaintiffs’ claims against Mr Polo is that the plaintiffs’ involvement with Mr Marino and Oracle Law was between August 2016 and early 2018, and was one in which principally conveyancing matters (as distinct from litigation) were being engaged in between businessmen who were friends and who knew one another. Mr Jamieson went on to submit that:

Mr Jamieson’s submissions were brief and (in part) chronological, rather than by reference to the list of issues or a particular structure. However, I understood him to submit (my summary) as follows. Specifically, in relation to the period up to early 2017:

In the period immediately prior to the AMAs, Mr Jamieson submitted that:

In relation to the AMAs, Mr Jamieson submitted that (T 442-443):

In relation to the preparation of agreements addressing loans, the reference in the plaintiffs’ particulars to the loan agreement dated 1 November 2016 appears to be what I have described above as the Second PA Deed. While I will infer that the amended deed said to be prepared on or about 23 February 2017 is the draft deed which Mr Marino circulated to Mr Pacifico on that date, it is not clear to me what the reference is to the loan agreement said to be prepared on or about 1 March 2017.

The Second PA Deed, both in its draft form (CB 883-900) and in its signed form (CB 814-831), contains the following provisions (CB 823-824, 892-893):

Clause 6.10 is suggestive that both Mr Marino and Mr Polo had worked in preparing the agreement.

Mr Pacifico referred to this agreement, and the fact that Mr Polo’s name was on the agreement, and was cross-examined about it: T 89.29-94.24. The evidence in relation to this was left in an unsatisfactory state.

As set out above, the plaintiffs did not plead that there was any retainer with Mr Polo or Oracle Law. On a number of occasions, Mr Pacifico stated that Mr Marino “wrote up” the agreement: T 77.27-.28, 89.44-.48, 94.5-.11. Quite how he knew that was not made clear. Mr Pacifico did not, at least expressly, assert that Mr Polo had prepared the agreement. Indeed, Mr Pacifico did not embrace any personal involvement on the part of Mr Polo in drafting documents for him. He gave the following evidence (T 90.42-.48):

There does not appear to be any invoice from Mr Polo for work done in relation to the Second PA Deed. The September 2017 PA Polo amended tax invoice which Mr Polo caused to be issued (CB 1346), whilst copied to Mr Pacifico, appears to be principally directed to the persons associated with Pharma Active and relate to negotiating terms of settlement with its receiver: CB 1345. Mr Pacifico was re-examined by Dr Baron Levi regarding discussions he had with Mr Polo (specifically, in July 2017): T 110.20-112.9; CB 152[90]-[93].

The re-examination resulted in some chronologically confusing evidence. The invoice to which Dr Baron Levi directed Mr Pacifico’s attention was dated 18 July 2018: CB 2288. The conversations to which he directed Mr Pacifico’s attention occurred in July 2017: CB 152[90]-[93]. Mr Pacifico’s responses, however, appeared to suggest that these were discussions that he had with Mr Polo regarding Mr Polo chasing payment for invoices for work that he had done for Mr Elovaris: T 111.8-.14. That is a little confusing, because the only tax invoice in evidence from Mr Polo to Mr Elovaris is the amended invoice dated 13 September 2017 (CB 1347), after the alleged discussions. The original tax invoice was not in evidence and it is perhaps possible that it was dated earlier, which might make the conversations explicable.

In any event, Mr Pacifico’s evidence is of some moment, as it confirms that he understood that Mr Polo was working for Pharma Active or Mr Elovaris, and not for him (i.e. Mr Pacifico): T 111.8-.14.

Whilst there is some latent uncertainty about the respective involvement of Mr Marino and Mr Polo, I am satisfied the Second PA Deed was prepared either completely or at least in part by Mr Marino. I am unable to make any more particular findings in relation to Mr Polo’s involvement, if any, in the preparation of the Second PA Deed.

No attempt was made to identify precisely who prepared the Second MEG Deed either. It did not appear to be suggested that Mr Polo had prepared that deed.

Other than in the general manner referred to above, Mr Jamieson did not specifically address the preparation of the loan agreement documents. However, even if it be said, consistent with Mr Jamieson’s other submissions, that work in preparing a loan agreement is ancillary work in connection with conveyancing matters and not necessarily legal work, I would reject that submission.

The First PA Deed, which was not prepared by Mr Marino, was apparently prepared by an accounting firm. The context in which Mr Marino was preparing an amended loan deed for Mr Pacifico was that Mr Marino had suggested that a “stronger” loan agreement needed to be drafted to protect Mr Pacifico’s interests. Mr Marino took a similar attitude in seeking to protect Mr Pacifico and Adelaide’s interests in relation to the drafting of the amended loan agreements with Mr Mackay and MEG.

It seems to me that, on the facts of this particular case, the preparation by Mr Marino of the loan agreements was the doing of something which, if not required to be done exclusively by a solicitor, is usually done by a solicitor, and the way in which he interacted with Mr Pacifico in respect of the preparation of those agreements was in such a way as to justify the reasonable inference that he was doing it as a solicitor: see e.g. Cornall at 196-198, 207-208, 210.

Mr Polo gave evidence that he had never included Mr Marino’s services in any disclosure statement that he had provided to a client: T 268.22-.31.

On Mr Polo’s evidence, Oracle Law invoices were always generated by himself and never incorporated any amount that was intended to cover Mr Marino’s time: T 150.20-.29. That is inconsistent with the following evidence from Mr Marino (T 303.23-.43):

However, Mr Marino did not identify any “case” of an invoice of Mr Polo which reflected Mr Marino’s time as well as Mr Polo’s. Mr Polo invoiced for the work completed in the matter with Pharma Active: CB 1347 (the September 2017 PA Polo amended tax invoice). The Oracle Law logo appears in the top left corner. The payee details appear to be an Oracle Law bank account and the Oracle Law reference contains Mr Polo’s name. Nowhere on the invoice does Mr Marino’s name appear.

However, there are also several invoices which on their face appear to be from Oracle Law, but have in fact been sent by Mr Marino: e.g. CB 1211, 1353, 2288 (including the September 2017 PA Marino amended tax invoice). Those invoices relate to work purportedly done by Mr Marino in relation to Mr Mackay’s matter and the Pharma Active matter. Like Mr Polo’s invoice, the Oracle Law logo is in the top left corner. However, the format of the invoice is visibly different and the reference contains Mr Marino’s name. On some invoices the payee details are to a “Debt Options Pty Ltd Trust Account”, while on others they are to Mr Marino’s Heritage Bank account. Mr Marino stated that the former was a trust account for an entity that performed debt collecting: T 305.34. In cross-examination, Mr Polo pointed out these differences and called it “a complete fabrication of an invoice”: T 265.9-.14.

Mr Marino accepted that he sent invoices directly to clients such as those referred to above: T 305. From this, the reasonable inference seems to be that Mr Marino was, at least in relation to the matters involving Mr Mackay and Pharma Active, invoicing for his own time in a fabricated Oracle Law invoice form and for which he would receive payment separate to Oracle Law.

There is also evidence which indicates that Mr Marino corresponded on behalf of clients to solicitors of other parties to transactions in relation to matters he had referred: e.g. CB 1201.

Many of Mr Marino’s communications in evidence demonstrate that he was performing some form of legal work. Examples of legal work being done by Mr Marino included:

In light of the above matters, I am satisfied that Mr Marino did, in the ways I have outlined above, engage in legal practice.

In the case against Mr Marino, the plaintiffs plead as part of their ACL and misrepresentation claims that they entered into the AMAs in reliance upon, or induced by, representations by Mr Marino that:

In the case against Mr Polo, the plaintiffs plead that Mr Polo represented by his conduct that Mr Marino was entitled to engage in legal practice by reason of Mr Polo being aware that Mr Marino was conducting matters on behalf of clients for Oracle Law and tacitly permitting Mr Marino to continue to act directly for clients, as well as Mr Polo’s failure to: (a) comply with disclosure obligations s 152 of the LPA; (b) advise clients that Mr Marino was not a solicitor and was not entitled to engage in legal practice; and (c) supervise or exercise control over Mr Marino: CB 25[62(a)-(f)].

In the case against Mr Polo, the plaintiffs repeat the earlier pleading that Mr Marino represented that he was a solicitor or alternatively the owner of Oracle Law, and that the investment opportunities offered by Mr Marino were offered or associated with Oracle Law: CB 25[62(g)(1)]. However, this aspect of the pleading does not (at least expressly) assert that Mr Polo represented that Mr Marino was a solicitor or alternatively the owner of Oracle Law.

The above begs the question as to why the plaintiffs entered the AMAs and what, if any, conduct on the part of Mr Marino and Mr Polo was operative in inducing the entry of the plaintiffs into the AMAs.

Precisely what induced the plaintiffs entering into the AMAs was not the subject of direct evidence by Mr Pacifico or Mr Parrella. However, there is some evidence that arguably bears upon the matter.

According to Mr Pacifico, Mr Marino came to Adelaide in or about early 2018: CB 155[109]. During this visit, Mr Marino raised with Mr Pacifico the fact that he was involved with “trading platforms”: CB 155[110]. This appears to have been the first time in which Mr Marino raised with Mr Pacifico the concept of trading platforms.

Mr Pacifico’s evidence was as follows (CB 155[110]-[111]):

This evidence is quite curious. The narrative of Mr Pacifico’s affidavit to that point does not refer to any immediate reason why Mr Pacifico would need help financially. The reference to an “Indian friend” is unclear, although it is likely a reference to Mr Kamkolkar.

Some insight is given in a number of other parts of Mr Pacifico’s affidavit. A little earlier, Mr Pacifico indicates that, on or about 1 or 2 July 2017, he discovered that Pharma Active was not doing well financially and he received notice that it was going into receivership: CB 152[89]. This appears to have been the catalyst for Mr Pacifico initially contacting Mr Marino, who was overseas, and then speaking with Mr Polo: CB 152[90]-[93].

Following the conversation with Mr Marino in early 2018, Mr Pacifico recounts a number of discussions with Mr Marino leading up to May 2018: CB 156[112]-157[116].

Mr Pacifico said that, by early 2018 (and seemingly before May 2018), he trusted Mr Marino “completely”: e.g. CB 157[116]; T 103.43, 122.30.

Mr Pacifico then refers to the fact that, in or about May 2018, he told Mr Marino that he had put all of his savings into the Pharma Active investment. In response, Mr Marino proposed putting Pharma Active through administration and bankrupting Mr Elovaris: CB 157[118]. At that stage, Mr Pacifico had not been repaid by Mr Elovaris (or Pharma Active): CB 158[121].

I have referred above to the fact that, on 19 July 2018, Mr Marino sent an email to Mr Pacifico regarding “INSTITUTIONAL BANKING Programs”, which attached the three PowerPoint presentations.

As I set out earlier, part of Mr Pacifico’s evidence in relation to the PowerPoint presentations included the following (CB 159[130]-160[131]):

In relation to the AMA, on or about 22 August 2018, Mr Pacifico deposed that (CB 164[150]):

Later, on or about 23 August 2018 when Mr Pacifico had been provided with the AMA (on 22 August), he noted that as the matter was urgent (an impression he appears to have gotten from Mr Marino) and he trusted Mr Marino, he then signed the AMA’s signature page: CB 166[157]. Mr Pacifico indicated in cross-examination that he did not read the agreement properly because he trusted Mr Marino: T 103.42-104.9.

Mr Parrella gave somewhat similar evidence in his affidavit as follows (CB 189[48]):

In cross-examination, Mr Parrella referred to his belief in Mr Marino as follows (T 121.28-.31, 122.30):

Nowhere in either of the plaintiffs’ affidavits, or their cross-examination, did they state that they would not have entered into AMAs if they had known that Mr Marino was not a lawyer and/or was no longer associated with Oracle Law. The highest it is put is that it gave them greater comfort or assurance in making the investment.

Contrary to Mr Pacifico’s evidence at CB 164[150], there is no express indication that the draft AMA “had been prepared by an Australian law firm, Oracle Law, and its lawyers,” or that “Oracle Law had reviewed and approved the platform investment”.

Significantly, Mr Pacifico gave evidence (as above) that he noticed that Oracle Law’s name was stamped on the PowerPoint presentations: CB 159[129]-[130]. However, his discussion with Mr Marino appears premised on the basis that he did not, by reason of that stamping alone, assume that Oracle Law had reviewed and approved the investment platform. Hence, his question to Mr Marino: “How come [Oracle Law is stamped on the PowerPoint Presentations]?”. I accept that it is Mr Marino’s response to Mr Pacifico, namely that “Oracle Law backs and are involved with the platform. We support the product”, which gave rise to the thought in Mr Pacifico that the investments (in the PowerPoint presentations) were approved by “[Mr Marino’s] law firm, Oracle Law” and this gave him “greater confidence in the investment”, and that he “believed that because lawyers were involved, they would know whether the investments were legitimate”: CB 159-160[130]-[131].

Neither Mr Pacifico nor Mr Parrella identified any representation to them by Mr Polo in respect of the investment proposal or AMAs. Nor did they indicate what, if anything, about the emails they received associated Mr Polo with any reason as to why they entered into the AMAs.

Mr Pacifico did not speak to Mr Polo about the AMA either before or after entering into the agreement: T 95.15-.37. Further, he could not recall the last time that he had spoken with Mr Polo prior to signing the agreement: T 106.46-107.11.

As indicated above, I am satisfied that Mr Pacifico was informed by Mr Marino that he had “sacked” Mr Polo on or about 19 July 2017, or in any event at least prior to 15 August 2017, and thereafter Mr Pacifico acted on the basis that Mr Polo was not connected with Oracle Law: T 87.21-.46.

It is far from clear how Mr Pacifico could have put any reliance upon Mr Polo in a context in which he thought that Mr Polo had been sacked from Oracle Law because he was “hopeless”, and in fact had no more dealings with Mr Polo after the purported “termination”: T 87.21-88.9.

Prior to the investment proposal, Mr Parrella had not met or spoken to Mr Polo by telephone or in any other way: T 115.26-.49. The suggestion of the investment came “entirely” to Mr Parrella from Mr Pacifico introducing him to Mr Marino: T 116.1-.11. The first email that Mr Parrella received on the investment proposal was from Mr Marino on 3 August 2018. He had no contact with Mr Polo after he had entered into the AMA: T 128.41-.43. In those circumstances, it is very difficult to see how Mr Parrella could have put any reliance upon Mr Polo in entering into the AMA.

Dr Baron Levi submitted that, between November 2018 and April 2019, Mr Marino sent various text messages and emails from his Oracle Law email address to Mr Pacifico and Mr Parrella indicating that the amounts deposited had been invested into the trading platform and that the trade was underway: POS [13] (referencing Mr Marino’s admissions on the pleadings).

Dr Baron Levi further submitted that, between May 2019 in June 2020, Mr Marino emailed the plaintiffs outlining various (inconsistent) explanations as to why their monies had not been returned: POS [15] (see also Mr Marino’s admissions on the pleadings: CB 13-15, 35).

Relevantly, cl 2.1(g) of the AMA is in the following terms:

Schedule A of the AMA is in the following terms (using the AMA entered into by Mr Parrella as the example: CB 1712):

The “official start date” referred to in cl 2.1(g) is an undefined term.

Nonetheless, according to cl 2.1(c), it is indicated that the trade “will generally start up to 10 banking days”. Dr Baron Levi submitted, and it was not apparently contested, that this presumably would be from the date of the deposit by the plaintiffs: POS [18]; see also T 50.

There is no real dispute that the 90-day period had commenced, for the purposes of cl 2.1(g), on or about 21 or 22 November 2018.

On 16 November 2018, Mr Marino sent Mr Pacifico and Mr Parrella an email indicating that the trade would start on 21 November 2018: CB 1878, 1879. On 23 November 2018, Mr Marino sent a text message to Mr Pacifico and Mr Parrella stating that he had been verbally advised that the trade had started on 22 November 2018: (admitted on the pleadings by Mr Marino: CB 12[29(a)] read with 35[6]); CB 863. Further, on 7 December 2018, Mr Marino sent a text message to Mr Pacifico and Mr Parrella stating that the trade was underway: (admitted on the pleadings by Mr Marino: CB 12[30(a)] read with 35[6]); CB 864.

Schedule A of the AMA states that the payments are subject to cl 2.1(i), which relevantly states:

Dr Baron Levi submitted that the proviso in cl 2.1(i) applies only to the “return”, being the profit on the initial investment and not the original investment itself. He says that for two reasons. First, the ordinary meaning of the term “return”, in the context of an investment, is the profit and not the original investment. Secondly, and more compellingly, he submits that the provisions of the AMA (in particular the terms of cl 2.1(g) and Schedule A), properly construed, indicate that the “return” only refers to the profit component: POS [24]. I accept the submission. Accordingly, there is an unqualified obligation under cl 2.1(g) of the AMA to pay back the initial invested capital after 90 days.

Prima facie, that gives rise to a breach by Mr Marino. Neither of the plaintiffs have been paid back their initial invested capital.

In his amended defence, Mr Marino (at CB 40-42[24], [27], [28], [30], [31], [34]) relied on the provisions of cll 5.2 and 5.3 of the AMA, which provide as follows:

Dr Baron Levi submitted that cl 5.2 does not apply as Mr Marino did not establish that any loss suffered was by reason of the exercise of a discretion given to him under the AMA: POS [29(a)]. However, whilst referring to cl 5.2 in his defence, Mr Marino did not identify what exercise of discretion he engaged in to support reliance upon cl 5.2. Further, Dr Baron Levi submitted that any loss suffered was as the result of “gross negligence, fraud or wilful default” (referencing the concluding words in cl 5.2) on Mr Marino’s part, as pleaded in the plaintiffs’ reply: CB 47[3]; POS [29(b)].

There are very curious aspects of the arrangements for the investment of the monies which were referred to by Dr Baron Levi during the hearing.

Dr Baron Levi submitted that cl 5.3 is no answer to the plaintiffs’ claim, as it is only enlivened by establishing that there was “proper performance” of the asset manager’s obligations under the agreement: (Reply) CB 48[4]; POS [30]. He submits, and I accept, that there was no proper performance because of the loss of the funds and control over the funds by Mr Marino: T 52. In any case, leaving aside the word “proper”, it would appear that the clause would, in effect, almost completely nullify the other provisions of the AMA if it were given a construction which extended to the present facts.

In the circumstances, I find that Mr Marino is liable for breach of the AMAs and the unqualified obligation under cl 2.1(g) to pay back the initial invested capital after 90 days. The damages awarded to the plaintiffs ought to be the amount of their respective initial invested capital, namely, $10,000 in respect of Adelaide and $200,000 in respect of Mr Parrella.

Strictly speaking, it is unnecessary to address the plaintiffs’ claims that Mr Marino personally guaranteed to them that the invested capital would be repaid. Nonetheless, Dr Baron Levi addressed the matter in the POS (see POS [31]-[45]). Mr Marino denied that a written or oral guarantee (otherwise pleaded as a “collateral warranty” if not part of the AMAs) had been given, and pleaded that it was not enforceable by reason of the failure to comply with “the applicable Statute of Frauds legislation”: CB 9[21], [22], 40[21], [22], [25].

Dr Baron Levi submits that Mr Marino’s defence that there is no written guarantee is without merit, and in this regard refers to the provisions of cl 5.1(e)(iii) set out above: POS [35]. He says, and I accept, that Mr Marino’s email dated 21 May 2019 confirmed that the wording of that clause was part of the AMA in relation to both plaintiffs: (Reply) CB 48[5(a)]; POS [41]; T 405.48-406.22.

In any event, there is no requirement that a guarantee be in writing and signed by the party “to be charged”: POS [43].

Dr Baron Levi made submissions in relation to various other contractual breaches of the AMA. It is not necessary for me to make findings on these matters, having regard to my finding in respect of the breach under cl 2.1(g): see POS [46]-[48]. However, if it were necessary for me to do so, I would find that there was a breach of the guarantee.

The plaintiffs pleaded a claim to the effect that, by reason of the provisions of cll 2.1(b), (g), (i), 4.2, 5.1(c) and (e)(i) of the AMA (alleged fiduciary clauses), Mr Marino owed fiduciary duties to the plaintiffs in relation to the monies they had transferred: CB 10-11[24(c)-(i)], 12[28]. They pleaded that Mr Marino breached his fiduciary duties (CB 18[45]), giving rise to loss. The conduct giving rise to the breach was particularised as including Mr Marino’s failure to disclose to the plaintiffs various aspects of the trade and trading platform, his failure to communicate with the plaintiffs for extended periods of time, his failure to commence legal action against any party in relation to the trade and his failure to claim under a policy of insurance in relation to the trade: CB 17[42(d)], 18[45].

Dr Baron Levi made brief reference to the claim for breach of fiduciary duty in the POS: POS [49]-[50], [60(a)]. In closing submissions, Dr Baron Levi fleetingly referred to the basis of the fiduciary duty as particularly being enlivened by cl 5.1(c) of the AMA: T 407.17-.21. He did not submit that the claim for breach of fiduciary duty would result in any different financial outcome for the plaintiffs: T 407.26-408.11.

I consider that as a contractual obligation there was a breach by Mr Marino in acting in the plaintiffs’ best interests. If, for some reason, I be incorrect in finding that there was a breach of cl 2.1(g) of the AMA, in Mr Marino’s failure to pay back the initial invested capital after 90 days, I find that there was a breach of the provisions of cl 5.1(c) of the AMA. Neither counsel suggested that there would be any different assessment of damages for breach than a finding that the loss was the amount of the invested capital.

In any event, there are issues with the claim of breach of fiduciary duties arising from the alleged fiduciary clauses. That is because the breaches asserted by the plaintiffs consist of Mr Marino’s failure to do positive acts, including: a failure to disclose aspects of the trade; a failure to communicate (with the plaintiffs); and a failure to commence proceedings. Ordinarily, fiduciary duties are proscriptive in nature, not prescriptive: Breen v Williams (1996) 186 CLR 71 at 113 per Gaudron and McHugh JJ; [1996] HCA 57. Proscriptive duties may in some circumstances take on a positive character in relation to a duty to disclose: e.g. Law of Agency at 205; see my comments in D Capital 2 Pty Ltd v Western [2022] NSWSC 1064; (2022) 20 BPR 42,919 at [401]-[404]. However, there were no submissions on this aspect of the issue. I decline to make any express findings on the issue of whether Mr Marino owed the plaintiffs any fiduciary duties in addition to his contractual duties and, if so, whether any such duties were breached.

The plaintiffs alternatively sought relief in terms of a declaration that the AMAs are rescinded, based on certain misrepresentations by Mr Marino: CB 3[2(a)], 19[46], 20[47]; POS [60(a)]. The claim for rescission was said to be alternatively based upon Mr Marino’s breach of fiduciary duty: CB 20[47]; POS [60(a)]. However, based on what I have explained above, I decline to consider rescission on the basis of any breach of fiduciary duty. In the alternative to rescission, the plaintiffs also sought damages based on the purported misrepresentations: CB 3[3(a)], 20[48].

The claim was propounded on the basis that the plaintiffs were induced to enter the AMAs on the basis of various representations by Mr Marino, including representations that: (a) Mr Marino was a solicitor or alternatively the owner of Oracle Law; (b) the investment opportunities Mr Marino managed were offered by or associated with Oracle Law; (c) the investment opportunities Mr Marino managed were subject to intensive due diligence and (represented to be) risk-free or virtually risk-free; and (d) the $200,000 investment opportunity would pay a return on the investment of 100% after 90 days, was government controlled and risk-free: CB 19[46].

It was pleaded that the representations (a) and (b) were made by Mr Marino knowing them to be false, and that the representations (c) and (d) were made by Mr Marino recklessly as to their truth: CB 19[46]. That aspect of the pleading is essentially a pleading of fraud.

The consequence of those misrepresentations was said to entitle the plaintiffs to rescission of the AMAs and, alternatively, damages.

Dr Baron Levi made brief reference to the claim for rescission based on misrepresentation in the POS: POS [60(a)]. In opening the case, Dr Baron Levi submitted that the fraudulent misrepresentation case against Mr Marino differed from the negligence case, in that “the relevant fraud was in alleging that the investments were backed by Oracle Law”: T 33.7-.9.

Dr Baron Levi made reference (at T 7.7-.22) to the provisions of s 153(2)(b) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), which are to the effect that the discharge of a bankrupt from a bankruptcy does not release the bankrupt from a debt incurred by means of fraud or a fraudulent breach of trust to which he or she was a party or a debt of which he or she has obtained forbearance by fraud.

Dr Baron Levi subsequently foreshadowed an application to amend the amended statement of claim to seek a declaration that the representations pleaded at CB 19[46(a)-(b)] (being representations (a) and (b) above, said to be made by Mr Marino knowing them to be false) amounted to some form of fraudulent conduct, so as to seek to bring the proceedings within the purview of s 153(2)(b) of the Bankruptcy Act, in the event that I made findings that the representations were knowingly false: T 17.29-18-.28.

There was the following exchange (T 18.30-19.7):

The PowerPoint presentations were sent after Mr Polo and Mr Marino had parted ways. However, there is branding of Oracle Law on the PowerPoint presentations, and each of the three presentations are said to be “Presented to you by Frank Marino”: CB 2107, 2120 and 2133. There is no reference to Mr Polo.

The notion of the investments being risk-free or virtually risk-free arose initially from statements made by Mr Marino to Mr Pacifico in Adelaide in early 2018: CB 159[128].

Towards the beginning of the “LEVERAGED CASH TRADE PROGRAM (Small Cap)” presentation, there is some flavour of the investments (or at least aspects of them) being risk-free when explaining how the system works.

Thus, the presentation contained the following (CB 2111):

Significantly, the presentation went on to state the following in respect of “Risk Understanding” (CB 2112):

The presentation had a disclaimer which included (CB 2118):

Finally, the presentation concludes as follows (CB 2119):

I am prepared to accept that the presentations sent by Mr Marino to Mr Pacifico indicated that the investment opportunities Mr Marino managed were associated with Oracle Law and that the investment opportunities were subject to intensive due diligence and represented to be risk-free.

I accept those representations were made by Mr Marino knowing them to be false, or being reckless as to their truth.

As I have noted above, nowhere in either of the plaintiffs’ affidavits, or their cross-examination, did they state that they would not have entered into the AMAs if they had known that Mr Marino was not a lawyer and/or was no longer associated with Oracle Law. The highest it is put is that it gave them greater comfort or assurance in entering into the AMAs. In relation to the representations as to the investment opportunities having been subject to intensive due diligence and being risk-free, the effect which those representations had on the plaintiffs, as distinct to those regarding Mr Marino being a lawyer or associated with Oracle Law, was not made clear on the evidence.

On the issue of the causation requirements for an action in deceit, the Court of Appeal (Bell CJ, Stern JA and Basten AJA) has recently stated in Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 at [126]:

Cognisant of the requirements outlined by the Court of Appeal, I am prepared to accept that Mr Marino’s misrepresentations “contributed” to the plaintiffs entering into the AMAs. It cannot be said that the plaintiffs were motivated entirely upon their own judgment when they entered into the AMAs, nor that they were aware of the representations’ falsity.

On the question of remedy, I note that the plaintiffs’ primary claim is one for damages arising from certain breaches of the AMAs by Mr Marino, which I have found in the plaintiffs’ favour. There is no indication that the plaintiffs had purported to rescind the AMAs prior to them filing their statement of claim on 14 October 2020. In those circumstances, it appears that the plaintiffs have affirmed, or at least made no election to rescind, the AMAs and I decline to make any declaration as to rescission.

However, based on my findings above, I find that, in the alternative to the plaintiffs’ primary claim for breach of contract, Mr Marino is liable to pay damages to the plaintiffs for fraudulent misrepresentation in the amount of their respective initial invested capital, namely, $10,000 in respect of Adelaide and $200,000 in respect of Mr Parrella.

It was pleaded that: (a) the $200,000 investment opportunity was an opportunity to invest in a financial product within the meaning of ss 763A(1)(a) and 763B of the Corporations Act; (b) Mr Marino provided financial product advice within the meaning of ss 766A(1)(a) and 766B of the Corporations Act in relation to a financial product; and (c) Mr Marino dealt within the meaning of ss 766A(1)(b) and 766C in a financial product: CB 20-21[49(a)-(c)].

It was said that by reason of (b) and (c) above, Mr Marino provided a financial service within the meaning of s 766A of the Corporations Act: CB 19[49(d)]. By reason of the earlier misrepresentations (CB 19[46], being those set out above in relation to the misrepresentation claim), it was pleaded that Mr Marino:

As a consequence of the alleged breaches set out above, the plaintiffs sought damages against Mr Marino pursuant to s 1041I(1) of the Corporations Act: CB 22[53].

Dr Baron Levi made no submissions regarding the claim for breach of the above financial services provisions of the Corporations Act in the POS (other than to note that such a claim was asserted by the plaintiffs): POS [60(b)]. No further particular submissions were made by Dr Baron Levi in respect of it. The only submissions made in relation to the Corporations Act related to questions arising from my interaction with Mr Lucarelli regarding the provisions of s 128 of the Evidence Act: T 316, 338-351

On their face, it could well be that the Chapter 7 provisions of the Corporations Act referred to in the plaintiffs’ pleadings are of some application to the present case. However, without the benefit of more detailed submissions as to precisely how those provisions ought to be construed and applied to the present facts, and given my findings above in relation to the plaintiffs’ contractual claim and misrepresentation claim, I do not propose to make any findings as to this alternative claim. In any event, there was no suggestion that the Corporations Act damages claim would be more extensive than the damages arising from the contractual claim.

It was pleaded that Mr Marino was relevantly, at all material times, engaged in trade or commerce and, by reason of the representations set out at CB 19[46] (being those set out above in relation to the misrepresentation claim), Mr Marino engaged in misleading or deceptive conduct contrary to s 18 of the ACL: CB 22[54(a)-(b)].

Further and in the alternative, it was pleaded that the representations that (a) there was no risk or virtually no risk in relation to the offers in the PowerPoint presentations, (b) the plaintiffs would receive a substantial fixed return in relation to the offers in the PowerPoint presentations, and (c) in relation to the $200,000 investment opportunity, the plaintiffs would earn a 100% return on the initial investment after 90 days, and the opportunity was risk-free, were representations as to a future matter within the meaning of s 4(1) of the ACL. It was said that under s 4(2) of the ACL, Mr Marino is taken to have had no reasonable grounds for making the representations, and the representations were therefore misleading or deceptive: CB 22[54(c)].

In consequence of the above, it was claimed that the plaintiffs were entitled to damages against Mr Marino under s 236 of the ACL: CB 22[54(d)].

Dr Baron Levi made brief reference to the claim for breach of the ACL in the POS: POS [60(c)]. In closing submissions, Dr Baron Levi submitted (at T 413-414) that the rules for causation for misleading or deceptive conduct, for the purposes of damages under s 236 of the ACL, are the same as those for the tort of negligence, citing Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525; [1992] HCA 55 and Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 (Henville) at [14], [105]-[107].

Dr Baron Levi observed that some of the conduct underlying the claims against Mr Marino occurred across jurisdictions, including the proffering of investments which involved Mr Marino physically meeting the plaintiffs in South Australia, other matters occurring by email and much of the physical work of Oracle Law occurring in Queensland: T 35.

The pleading of the plaintiffs’ ACL claim, and the submissions of Dr Baron Levi, did not distinguish between the ACL as a law of the Commonwealth and as a State law. Precisely how the ACL operates as a law of the Commonwealth and as a State law is a distinction which is not always properly appreciated in practice, but it is important: Zervas v Burkitt (No 2) [2019] NSWCA 236 (Zervas) at [53] per Bell P (as his Honour then was) (Macfarlan and McCallum JJA agreeing). No submission was made as to the appropriate State law(s) that would be operative in the present case. On that basis, I will proceed in dealing with the ACL claim on the understanding that the plaintiffs claim under the ACL as a law of the Commonwealth.

The ACL as a law of the Commonwealth does not relevantly apply to a claim against a person for involvement in a breach of s 18 of the ACL (Cth): Zervas at [57] per Bell P (Macfarlan and McCallum JJA agreeing).

In Campbell v Tran [2024] NSWSC 204 (Campbell v Tran), I explained that there may be an extension of the operation of s 18 of the ACL (Cth) (in addition to certain other parts of the ACL) to persons who are not corporations, where the impugned conduct involves the use of the internet:

This Court has jurisdiction to entertain a case based on s 18 of the ACL (Cth) by virtue of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

The representations that Mr Marino was a solicitor and the owner of Oracle Law (CB 19[46(a)]), at least to the extent that they were oral representations coupled with the handing over of a business card, were not made by use of the internet.

However, I consider that the representations pleaded in CB 19-20[46(b)-(f)] (representations (b), (c) and (d) as set out above in dealing with the misrepresentation claim) were misleading and were made by use of the internet.

Damages to be assessed under s 236(1) of the ACL (Cth) are compensatory. In Campbell v Tran, I stated:

Dr Baron Levi did not address particular submissions as to damages other than by reference to the initial capital investment.

I find that, in the alternative to the plaintiffs’ primary claim for breach of contract, Mr Marino is liable to pay damages to the plaintiffs pursuant to s 236 of the ACL (Cth) in the amount of their respective initial invested capital, namely, $10,000 in respect of Adelaide and $200,000 in respect of Mr Parrella.

The claims against Mr Marino also included a pleading of negligence: CB 22-23[55].

The pleading was said by Dr Baron Levi to be important for the reason that it formed the basis for the vicarious liability claim against Mr Polo: T 6.29-.37, 30.25-.26, 32, 408.15-.20.

Dr Baron Levi also commented that there is a question as to whether debts arising as a result of negligence are provable or non-provable in bankruptcy: T 7.28-.33.

Dr Baron Levi submitted (POS [51]-[53]; T 32.29-33.1, 406.24-.30), and I accept, that Mr Marino owed a duty of care to the plaintiffs in relation to their capital investment arising from a number of the provisions of the AMA, including that:

It was claimed that Mr Marino breached his duty of care by failing to act in the manner of a reasonable and responsible asset manager, including relevantly that a reasonable asset manager (i) would have foreseen that no investment promising a 100% return in 90 days was risk-free, and (ii) would have known that any such investment carried extreme risk and was likely to be a sham, and would have advised against entering such a transaction: CB 23[55(b)]; POS [53].

I accept that Mr Marino breached his duty of care in the manner alleged. The investment proposed by the AMA, when linked with the Diamonda investment agreement, had unconventional aspects, was inherently risky and, on any view of it, Mr Marino did not act diligently or with a degree of care and diligence that a reasonable person would exercise in an asset manager’s position.

The Diamonda investment agreement has a number of unusual aspects to it which ought to have alerted a reasonable asset manager to question the legitimacy of the investment. Dr Baron Levi referred to these as “red flags”: T 406.34-.48. These included that:

There are further extraordinary aspects of the Diamonda investment agreement, including the fact that somehow Mr Marino has agreed “to co-operate and arrange” an initial investment capital of $250 million USD in the form of a bank guarantee or standby letter of credit to the benefit of Diamonda: CB 1765.

The “receiver” is not defined, but in context appears to be Diamonda: T 59.15. The “receiver’s bank” is specified as Wells Fargo Bank: CB 1775.

Mr Marino asserted in his email to Dr Bregman on 27 September 2018 that “I have completed my DD on the contract…”: CB 1756-1757. Yet it is not evident what, if any, due diligence Mr Marino had undertaken.

In that email, Mr Marino raises a number of queries regarding the Diamonda investment agreement, yet seemingly arranges to sign the contract and send the funds with exceeding haste without apparently having received any responses to his queries. Mr Marino’s queries raised in the 27 September 2018 email were not apparently answered, other than with the provision of an insurance policy.

The “sanitised” insurance policy is in evidence. Quite what was meant by Dr Bregman in describing the policy as “sanitised” is unclear. Dr Baron Levi was unable to explain precisely what it meant: T 61. However, at least on one view, the word “sanitised” is an apt description, because the certificate of liability insurance (CB 1798), the policy wording (CB 1799-1813) and the endorsements (CB 1814-1820) are devoid of any meaningful detail which would enable the reader to understand anything about who or what was being insured and the extent of such insurance. There is no reference to who is insured or the insurer’s details: T 61-62, see also 406.50-407.14.

There is evidence that the plaintiffs paid their respective funds to the account nominated by Mr Marino in the AMAs: CB 85. Despite the existence of the telegraphic transfer document purporting to show Diamonda as a beneficiary of funds in the sum of $257,000 USD, with the funds to be paid to Wells Fargo Bank in California (CB 1824), Dr Baron Levi submitted there is no actual evidence as to the ultimate destination of the funds that were paid by the plaintiffs: T 50.50-51.13, 56.16-.17. He noted suggestions from Mr Marino that the funds had ended up in London, but also referred to a meeting which Mr Marino had purportedly attended in Monaco where the funds are supposed to have ended up. Dr Baron Levi submitted that there is a lack of clarity about almost everything after Mr Marino sent the funds on: T 49.41-50.2.

Dr Baron Levi submitted that there was a breach of duty of care in the sense that Mr Marino failed to remain in control of the trade and the funds (T 51-52, 406.30-.32), giving rise to loss (in that the plaintiffs’ investment was lost and not returned to them). I accept that there was a breach by Mr Marino of his duty of care to the plaintiffs, and that such breach led to the plaintiffs’ loss.

There was no suggestion that the damages sought under the negligence claim would be any different or more extensive than the damages arising from the contractual claim. Mr Marino is alternatively liable to pay damages to the plaintiffs for negligence in the amount of their respective initial invested capital, namely, $10,000 in respect of Adelaide and $200,000 in respect of Mr Parrella.

The pleaded claim of the plaintiffs suggested that the primary claim against Mr Polo was one pursuant to the inherent compensatory jurisdiction of the Supreme Court in relation to the control and discipline of solicitors. However, in closing submissions, Dr Baron Levi indicated that the principal claim against Mr Polo was in negligence: T 408.24-.31. I will consider that claim, as well as the other claims brought against Mr Polo, further below.

The inherent supervisory jurisdiction claim was essentially pleaded as follows:

Based on his submissions (outlined above) that Mr Marino engaged in legal work, Dr Baron Levi submitted that Mr Polo, as principal of Oracle Law (POS [75]):

Dr Baron Levi submitted that the claims in this regard were not dependent upon a finding that Mr Marino was employed by Oracle Law and that the term “associate of a law firm”, for the purposes of the Uniform Law, is defined in such a way as to extend to any agent or representative of the firm: T 34.12-.14.

That submission requires refining. There is a definition of “associate of a law practice” in s 6 of the Uniform Law as follows:

The definition extends to any “agent” of the law firm, but not to any “representative”.

Dr Baron Levi submitted that Mr Polo attended himself with a carelessness towards compliance with legal obligations and regulations, citing the fact that: his invoices referenced legislation that had been repealed 12 years earlier; he engaged Mr Bax to act as a clerk, in circumstances where he knew that Mr Bax had been struck off as a solicitor; and he was prepared to take a percentage of recovered funds from a client rather than bill on any permissible basis: T 437.22-.35. He further submitted that I should reject Mr Polo’s evidence regarding Oracle Law not engaging in a multi-disciplinary partnership, and therefore him not being required to make clear Mr Marino’s role as a non-lawyer: T 437.37-438.1.

Dr Baron Levi submitted, though without elaborating, that there is a well-established compensatory limb (as distinct from a disciplinary limb) under the Court’s supervisory jurisdiction over its officers, citing McIlraith v Ilkin [2007] NSWSC 911 (McIlraith v Ilkin) at [10]-[21] per Brereton J (as the Commissioner then was): POS [68].

In closing submissions, Dr Baron Levi referred (T 440) to the decision of Peden J in Bell v Hartnett Lawyers (No 3) [2022] NSWSC 1204 (Bell v Hartnett Lawyers (No 3)) at [93], where her Honour referred to the decision of Slattery J in Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270 as follows:

He noted that Peden J extracts part of the decision of Slattery J, which in turn cites Hammerschlag J (as his Honour then was) in John Ljubomir Atanaskovic and the persons named in Schedule A t/as Atanaskovic Hartnell v Birketu Pty Ltd – Supervisory Jurisdiction [2020] NSWSC 573, as support for the propositions that the compensatory limb of the inherent supervisory jurisdiction is (T 440.29-.38):

Finally, in relation to the question of the provision of legal services, Dr Baron Levi made reference to two decisions which were said to inform the definition of what legal services are.

The first was Victorian Legal Services Board v Jensen [2018] VSC 740, for which Dr Baron Levi submitted that “the finding in that case was that activity including advising that the removal of a caveat was under consideration, offering to contract on behalf of a client, sending notices and tax invoices in relation to property disputes, and providing purported legal documents to a municipal council amounted to engaging in unqualified legal practice”: T 440.43-.48.

The second was Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 (Adamson), for which Dr Baron Levi submitted “in that decision, a solicitor and clerk had entered into an oral arrangement by which the clerk would bring in conveyancing work and then be paid 75% of all professional costs rendered for work introduced by her after accounting for minor outlays. The clerk rented her own office adjacent to the solicitors’ office”.

Based on Adamson, Dr Baron Levi submitted as follows (T 441.7-.13):

Mr Jamieson drew a distinction between professional misconduct and unprofessional conduct, citing Roger J Atkins, New South Wales Solicitors Manual (3rd ed, 1975, The Law Society of New South Wales) at 65.

Mr Jamieson submitted that the plaintiffs were not the clients of Mr Polo or Oracle Law for the AMAs: D2OS page 3. He submitted that, even if the Court found that the plaintiffs were clients, this case did not involve “an issue of breach of duty to clients”. In particular, Mr Jamieson submitted that “a breach of duty to third parties” must involve “intentional conduct” and “wilful failure” by the solicitor, in this case Mr Polo: D2OS page 3.

Mr Jamieson submitted (D2OS page 3) that there is no evidence to show any dishonesty or reckless behaviour on the part of Mr Polo, specifically:

Further, Mr Jamieson submitted that Mr Marino, when dealing with the investment proposal taken up by the plaintiffs, dealt with Mr Kamkolkar, who the plaintiffs had said operated from the office of Oracle Law: D2OS page 3-4, see for example CB 165[153], 188[45], see also 1776. By the time of Mr Kamkolkar’s involvement, Mr Marino and Mr Polo had gone their separate ways.

As I have noted above, Dr Baron Levi drew my attention to a number of authorities in relation to aspects of the inherent supervisory jurisdiction.

On examination, the various cases referred to present a more nuanced approach to the exercise of the Court’s inherent supervisory jurisdiction than broad assertions that: the jurisdiction can be exercised in any circumstances where the requirements of justice might demand it; it is not restricted to closed and defined categories of cases; it is not exercised for the purposes of enforcing legal rights but for the purpose of ensuring honourable conduct on the part of the Court’s own officers; it is distinct from any legal remedies or rights of the parties; it is unaffected by anything which affects the strict legal rights of the parties; and it is not limited to technical principles. While these may be statements of principle, they are not capable of direct application and require careful consideration in any given circumstances.

The decision of Peden J in Bell v Hartnett Lawyers (No 3) was the subject of an appeal in Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244 (Hartnett Appeal). On the appeal, Bell CJ set out the principles applicable to the supervisory jurisdiction. His Honour stated:

Adamson JA relevantly agreed with the Chief Justice at [165]. At the conclusion of the hearing of the appeal, Ms Whittaker SC offered certain undertakings to the Court with a view to the matter being resolved by a third party payer costs assessment, and argued that the consequence of the availability of these alternative avenues was that the inherent jurisdiction was not available because it was not “necessary” that it be exercised: Hartnett Appeal at [179]-[180]. Addressing this point, Adamson JA stated at [181]:

Griffiths AJA agreed with the Chief Justice at [182].

When one examines the various cases dealing with the Court’s inherent supervisory jurisdiction, one can see that it covers potentially a very broad range of conduct. The cases dealing with the inherent supervisory jurisdiction show that the approach taken by the Court in dealing with such claims depends on the nature of the conduct alleged. It is far from clear that cases involving intentional conduct by a solicitor, such as breach of an undertaking, or egregious conduct, such as gross overcharging, are dealt with in the same way as non-intentional conduct that falls short of a particular standard of care.

Specifically, in New South Wales there is authority suggestive that the compensatory limb of the Court’s inherent supervisory jurisdiction, whilst able to be invoked in cases of breach of professional duty by negligence, is said to require something more than “mere” negligence: McIlraith v Ilkin at [11]-[21] per Brereton J. Specifically, it has been stated that the negligence must be of a “culpable quality” amounting to a “serious dereliction of duty”: McIlraith v Ilkin at [43] (unaffected by the judgment of Basten and Bell JJA in McIlraith v Ilkin [2008] NSWCA 11 (McIlraith Appeal) at [6], dismissing an application for leave to appeal); see also G E Dal Pont, Solicitors Manual (LexisNexis) at [20,050].

It is appropriate to set out the relevant parts of the respective judgments of Brereton J and the Court of Appeal in McIlraith v Ilkin and McIlraith Appeal.

In McIlraith v Ilkin, Brereton J provided a detailed survey of the authorities at [10]-[21] as follows:

In McIlraith Appeal, the appellant sought leave to appeal against the orders made by Brereton J summarily dismissing the proceedings. As noted above, leave to appeal was refused by Basten and Bell JJA. On Brereton J’s review of authorities set out above, their Honours observed:

In making the observation that nothing was advanced to suggest that Brereton J was arguably wrong in his statement of the relevant principles, Basten and Bell JJA themselves did not suggest that Brereton J’s statement of principles was incorrect.

This aspect of the plaintiffs’ claim under the compensatory limb of the Court’s inherent supervisory jurisdiction was detailed, which is why I have addressed the issue of whether Mr Marino engaged in legal practice above.

As noted above, I accept that Mr Marino engaged in legal practice.

Dr Baron Levi cited Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551; [2004] SASC 426 at [45] per Debelle J (in dissent) for the proposition that members of the public repose great trust in legal practitioners, in particular in relation to money matters: T 412. At [45], Debelle J stated the following:

Whilst that may be true as a general proposition in the context of a legal practitioner’s admission and disciplinary proceedings, there is no evidence that the plaintiffs trusted Mr Polo or turned their minds to any conduct of Mr Polo as a basis for entering the AMAs.

Dr Baron Levi made the further submission that there was a “stamp of trustworthiness” in relation to Mr Marino created by the fact that the plaintiffs understood him to be a lawyer, which gave them confidence to enter into the AMAs: T 412. However, given my observations above in relation to the problems with the purported inferences the plaintiffs sought to draw from Mr Marino’s emails, I fail to see how that submission relates in any material way to any potential liability of Mr Polo under the Court’s inherent supervisory jurisdiction. Any “stamp of trustworthiness” of Mr Marino created in the minds of the plaintiffs was conjured by Mr Marino, not Mr Polo.

The complaints that are made that Mr Marino disseminated advertising, marketing or promotional material relate particularly to the institutional banking program PowerPoint presentations which were forwarded by Mr Marino to Mr Pacifico in July 2018.

It is clear that there was dissemination of such material.

However, that was at a point of time after Mr Polo and Mr Marino had ceased occupying the office premises together and, with some exceptions, had largely ceased contact with each other.

There is no suggestion that Mr Pacifico spoke with Mr Polo about the AMA: T 91.20-95.22.

There is no suggestion that Mr Marino had at any stage prior to April 2018, when he and Mr Polo went their separate ways and left the office premises, distributed any material that was false, misleading or deceptive in the nature of the PowerPoint presentations or other form of investment opportunity.

There is no suggestion that Mr Polo had any awareness that there was a risk that Mr Marino might distribute such material.

The final particular contravention of the LPA alleged by the plaintiffs is that Mr Marino and Mr Polo engaged in a form of multi-disciplinary partnership, contrary to the provisions of s 144 of the LPA, such that it is said that Mr Polo breached disclosure provisions in relation to various persons, but relevantly the plaintiffs, under s 152 of the LPA. Mr Polo denied that he was in any form of multi-disciplinary partnership with Mr Marino. There is no doubt that material was adduced which gives a flavour of Mr Polo and Mr Marino being engaged in a form of partnership. However, whilst the word “partnership” is able to be found in some of the evidentiary materials, Dr Baron Levi did not make specific submissions about what constitutes a partnership.

“Partnership” per se is not defined in the LPA.

As a common English word, the noun “partnership” is simply described as “the state or condition of being a partner; participation; association; joint interest”: Macquarie Dictionary, online ed. The Macquarie Dictionary, online ed further contains a definition the context of law, and describes partnership in the following terms:

The initial definition 2(a) corresponds closely with the definition of partnership which is relevantly adopted in s 1(1) of the Partnership Act 1892 (NSW) and s 5(1) of the Partnership Act 1891 (Qld).

Each of Mr Polo (T 151-156) and Mr Marino (T 297-299) were cross-examined about the Burrows email and the proposed business chart. Further, Mr Polo was cross-examined about the merchant facilities enquiries and the PayPal email (T 163-166), Mr Marino sourcing a photocopier and t-shirts, the lease application and the insurance quotation (T 150, 170-181). I assume the cross-examination related to the pleading that Mr Polo engaged in a multi-disciplinary partnership with Mr Marino.

However, whilst Dr Baron Levi cross-examined Mr Polo and Mr Marino regarding these matters and the nature of their business relationship with one another, there was no serious attempt, as I understood it, to establish that Mr Marino and Mr Polo were carrying on a business in common with a view to profit.

Oracle Law never shared any form of income in relation to any matter with Mr Marino (T 150.31-.33), and Mr Marino was never paid a referral fee or earned any remuneration from Mr Polo in relation to referred matters or otherwise: T 203.37-.48.

Other indicia which are common key features of a partnership, such as mutual agency, participation in profits, sharing of losses and common capital, were not evident as between Mr Marino and Mr Polo: see e.g. Halsbury’s, 305 – Partnerships and Joint Ventures at [305-1]; Walters v Scarborough [2011] NSWSC 1380 at [261]-[266], especially at [263], per Ward J (as her Honour then was). There was no attempt to cross-examine either Mr Polo or Mr Marino in relation to any funds received into their bank accounts, with a view to showing that such funds were the subject of income derived by profit sharing.

No submissions were directed to the issue of whether the compensatory limb of the inherent supervisory jurisdiction is exercisable against a practitioner admitted in New South Wales but practising in Queensland. However, I am prepared to proceed on the basis that the Court has such jurisdiction: cf Bell v Hartnett Lawyers (No 3); Hartnett Appeal; Council of the NSW Bar Association v Siggins [2021] NSWCA 40.

A difficulty with the plaintiffs’ pleading of the claim under the compensatory limb of the inherent supervisory jurisdiction is that assertions were made regarding Mr Marino’s conduct and the purported responsibility or liability of Mr Polo, as principal of Oracle Law, for that conduct, without detailed steps outlined as to how Mr Polo’s role was connected to the investment undertaken by the plaintiffs and their loss.

There may be cases where the failure of a principal of a law practice to take certain steps in relation to a matter may, without any further particular assertions, self-evidently demonstrate that a person who has suffered loss ought to be regarded as directly connected to the conduct of the principal such that, in administering the jurisdiction, the Court would intervene and direct that compensation be provided. A classic case for example would be where a solicitor has grossly overcharged a client. However, such cases seem to be set apart from the facts of this case. Dr Baron Levi did not make any particular submissions regarding the culpable nature of Mr Polo’s conduct in the terms that are described in McIlraith v Ilkin, nor did he address what may be required by way of positive conduct or omission on the part of Mr Polo to enliven a type of responsibility or culpability in Mr Polo for the loss of the plaintiffs, such that the Court would award the plaintiffs compensation.

In those circumstances, I consider that it is difficult to form the conclusion that the Court should necessarily exercise its jurisdiction to award compensation.

There was a lack of clarity in the plaintiffs’ pleadings and submissions as to how, precisely, the purported breaches of the Uniform Law, the LPA or the Conduct Rules by Mr Polo in fact caused the plaintiffs’ loss. It cannot be sufficient to enliven a favourable exercise of the compensatory limb of the inherent supervisory jurisdiction to merely assert various breaches of the Uniform Law, the LPA or the Conduct Rules (even if some such breaches are established) without reference as to how the breaches were causally connected with the loss suffered by the plaintiffs.

In any event, McIlraith v Ilkin shows that, whilst the compensatory supervisory jurisdiction is not limited cases of professional misconduct, and may be attracted in a case of breach of professional duty by negligence, Brereton J made clear that something more than “mere” negligence is required. His Honour, by reference to the decision in Myers v Elman [1940] AC 282, referred to the requirement for “gross” negligence.

Whilst outlining alleged breaches by Mr Polo, Dr Baron Levi did not make any particular submissions as to how Mr Polo’s conduct was said to amount to “gross” negligence, or what the distinction or dividing line was between negligence per se and “gross” negligence. There was no analysis in this regard of Mr Polo’s alleged failings. In his closing submissions, Dr Baron Levi submitted that the Court’s inherent jurisdiction may be exercised “regardless whether another cause of action is established”: T 426.9-.10. He said further (T 426.12-.19):

In light of Brereton J’s detailed observations in McIlraith v Ilkin, it is clear that the compensatory limb of the Court’s inherent jurisdiction does not extend to any “conduct of a solicitor that falls short of their obligations”, if what is meant by the submission is that a mere departure from the standard of care is enough to justify compensatory relief. I do not accept Dr Baron Levi’s submission in this respect.

For his part, Mr Jamieson did not clearly address the operation of the compensatory supervisory jurisdiction by reference to the requirement of “gross” negligence either.

Albeit not solely in the context of the claim under the Court’s supervisory jurisdiction, significant emphasis was placed by the plaintiffs on the fact that Mr Marino had continued access to his Oracle Law email address after he had parted ways with Mr Polo. Given this, I note that I accept, at least from his own admission, Mr Polo ought to have taken steps to take control of and terminate Mr Marino’s use of and access to his Oracle Law email, and that a “reasonable principal of a solicitor’s firm” would have done so. However, I am not satisfied that Mr Polo’s failure is of a culpable quality amounting to a “serious dereliction of duty” or amounts to “gross negligence” such as to lead to the outcome that Mr Polo should, under the compensatory limb of the Court’s inherent supervisory jurisdiction, be responsible to the plaintiffs for their loss.

In all the above circumstances, I am not satisfied that this case warrants intervention of the Court pursuant to its compensatory supervisory jurisdiction.

The plaintiffs pleaded that Mr Polo owed duty of care to clients and prospective clients of Oracle Law: CB 26[63(a)].

The plaintiffs pleaded that Mr Polo breached the duty of care to the plaintiffs in the following respects, namely Mr Polo (CB 26[63(b)]):

It is said that, in the above respects, Mr Polo failed to meet the standard a reasonable principal of a legal practice would meet and acted recklessly and contrary to his legal professional obligations: CB 26[63(b)].

As a result of the alleged breach, the plaintiffs say that they suffered loss and damage, being the amount of the capital investment: CB 26[63(c)-(d)].

I note that there was no pleaded claim that Mr Polo was liable on a basis as a principal, with Mr Marino being his agent, arising by ostensible authority or otherwise. The claims for relief against Mr Polo were essentially limited to claims for compensation under the Court’s inherent jurisdiction and damages for negligence or alternatively under s 236 of the ACL.

That is, no claim for damages was made against Mr Polo arising under the general law other than “for negligence”. On the hearing, a distinction was made between the direct claim of negligence against Mr Polo and the vicarious liability claim. I deal with the latter claim later in these reasons.

The POS continued to resort to the relevant duty as being a duty to “clients and potential clients”. Thus, in relation to negligence, Dr Baron Levi submitted as follows (POS [76]-[77]):

In opening, Dr Baron Levi characterised the claim as the second defendant’s “failure to supervise and control the activities of the first defendant”, including the use of his Oracle Law email: T 33.17-.19. He stated that the claim was not dependent upon a finding that the first defendant was an employee of Oracle Law, because “the second defendant had placed the first defendant in a position where the first defendant had control of the Oracle Law domain and website and email addresses”: T 33.23-.26.

Dr Baron Levi confirmed, prior to the calling of Mr Pacifico (in the midst of discussion with both counsel regarding issues), that the gist of the plaintiffs’ case against Mr Polo is that he created the circumstances in which Mr Marino was able to hold himself out not only as an employee but in some instances as a lawyer of Oracle Law: T 73.47-.49.

In closing submissions, Dr Baron Levi articulated the negligence claim as follows: Mr Polo conferred upon Mr Marino the title of an employee of Oracle Law, business cards of Oracle Law and an Oracle Law email address; and Mr Marino engaged with clients, prospective clients and third parties using his Oracle Law title and email address with the knowledge of Mr Polo: T 408.26-.33.

Dr Baron Levi indicated that the duty of care was breached in a number of ways, as follows (T 408.35-.50, 409.6-.39):

Dr Baron Levi submitted that the failure to make Mr Marino’s role clear to clients, prospective clients and third parties resulted in the plaintiffs believing that Mr Marino was a solicitor: T 409.1-.5.

Dr Baron Levi accepted that the AMAs themselves do not make any reference to Oracle Law per se and do not in their terms (as distinct from being sent from an Oracle Law email address) indicate that Oracle Law or Mr Polo guaranteed the investments in any way or that they were expressly backed by Oracle Law or Mr Polo: T 409.48-410.48.

Dr Baron Levi submitted that the emails to Mr Pacifico and Mr Parrella in relation to the investments were sent at a point when Mr Marino was no longer involved with Oracle Law and at a point therefore where his access to his Oracle Law email address should have been “cut off”. He noted that there are admissions by Mr Polo that he should have cut off Mr Marino’s access to his email address at the time that Mr Marino ceased to have contact or involvement with Oracle Law, which was by 14 April 2018 at the latest: T 411.1-.8, 434.5-437.20.

Dr Baron Levi submitted that Mr Marino’s ability to pass himself off as a lawyer was central to the decision of the plaintiffs to invest, which is confirmed in their evidence: T 411.10-.37.

Dr Baron Levi submitted that the relevant test for causation is “whether a particular breach has materially contributed to loss or damage suffered, and a breach may materially contribute to loss or damage suffered even if it's not the sole inducement in sustaining the loss, and … it simply needs to play some part even if only a minor part, in contributing to the course of action taken”, citing Henville at [14] and [105]-[107]: T 413.14-.39. In applying that test, Dr Baron Levi submitted as follows (T 414.11-.18):

I note that Mr Polo did not plead any defence of contributory negligence against the plaintiffs: T 70.46-71.35, 74.31-.40.

Jurisprudentially, a duty of care is a notional pattern of conduct: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 (Vairy) at [22] per McHugh J, citing R W M Dias, “The Duty Problem in Negligence” (1955) 13 Cambridge Law Journal 198 at 202.

A duty of care arises in the context of a relationship between individuals and “imposes upon one a legal obligation for the benefit of the other … to deal with particular conduct in terms of a legal standard of what is required to meet the obligation”: Vairy at [22] per McHugh J, citing Prosser and Keeton on the Law of Torts (5th ed, 1984) at 356.

In claims in negligence, broadly stated, the proper identification of a duty of care is a question of law, whereas questions of breach and causation are questions of fact: e.g. Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007] NSWCA 220 at [45]-[47] per Giles JA.

Speaking generically, I will refer to the party who owes the duty as the obligor and the party to whom the duty is owed as the obligee.

There is a distinction between the question of whether a duty of care exists and the content of the duty: e.g. Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40 at [46] per Gummow, Hayne and Kiefel (as her Honour then was) JJ.

Common law duties of care:

Where the relationship between the obligor and obligee and the kind of damage in question are well-established as a category of case where a duty of care has been found, there is usually no need to dwell on consideration of whether the duty is owed, or the content of the duty.

In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 (Kuhl), French CJ and Gummow J (in dissent) outlined a number of principles at [22] which are uncontroversial but important. In summary (quoting substantially from their Honours’ reasons and omitting citations):

French CJ and Gummow J warned of the inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content. Further, “to begin the inquiry by focusing only upon questions of breach of duty invites error… because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account”: Kuhl at [19], citing Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [19] per McHugh, Gummow, Hayne and Heydon JJ.

Their Honours’ dissent did not appear to be in respect of these observations of principle, and they have been subsequently cited in several appellate court decisions: e.g. Collins at [8] and Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376; [2015] WASCA 35 at [362].

A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [192] per Gummow and Hayne JJ; see also Hoffmann v Boland [2013] NSWCA 158 at [113] per Sackville AJA. It is impermissible to determine the existence of a duty, its scope and content, by reasoning backwards from the loss that occurred, to a counterfactual of what could have been done differently to avoid the loss; while causation may be reasoned backwards, foreseeability and duty must be forward-looking: 5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785 at [25] per Dixon J.

Generally, a solicitor’s duty is owed solely to a client, subject to his or her primary duty to the Court and the rules and standards of the legal profession: Hill v Van Erp (1997) 188 CLR 159 at 167 per Brennan CJ; [1997] HCA 9 (Hill v Van Erp); Professional Liability in Australia at [3.480].

There may be some circumstances in which solicitors become potentially liable to former clients, such as investors in a solicitor’s mortgage practice who suffer loss: Professional Liability in Australia at [3.520], citing Purkiss v Hannigan (Court of Appeal (NSW), 13 February 1997, unrep) (Purkiss).

In Purkiss, the leading judgment was given by Giles AJA, with whom Gleeson CJ and Handley JA agreed.

Giles AJA found at 7 that, in the circumstances of the case, Mr Hannigan (a solicitor) was under a duty to inform the investors of a mortgage practice of certain matters, including the fact that the person who administered the mortgage practice, Mr Burke, was not a solicitor. However, the context of the finding of a duty to inform was predicated on the practice having had an existing mortgage practice which provided an established structure for the making of investments, which is not the case here.

The limited nature of duties owed by solicitors to third parties in tort is reinforced in commentary by G E Dal Pont in Solicitors Manual (LexisNexis) at [26,005]. At [26,010.5], whilst acknowledging that the High Court has not spoken with one voice on what attracts duties of care in tort, Dal Pont states that it appears to be clear that successful claims by third parties against lawyers for economic loss require proof of more than reasonable foreseeability, citing Oakley Thompson & Co v Kanik (1998) 145 FLR 438 at 450 per Baker and Morgan JJ, and Beach Petroleum at [357]-[359].

Dal Pont states at [26,010.5] that the additional factors have been judicially described by reference to:

If the circumstances fall outside an accepted category of duty such that the posited duty is a novel one, the proper approach to be applied in determining whether a defendant owes a plaintiff a duty of care is a degree elusive.

The present position seemingly involves approaching the duty question by undertaking a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to “salient features” of the relationship between them: e.g. Kuhl at [20], citing Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [149], Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [198] and Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 (Sullivan v Moody) at [50]-[52]; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 (Woolcock) at [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ, drawing on remarks by Stephen J in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 576-578; [1976] HCA 65. In Woolcock, Kirby J appeared to endorse an approach of identifying “salient features” that help the decision-maker to decide whether a duty of care exists: Woolcock at [123].

In Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 (Brookfield), French CJ referred to the determination of duty by reference to the “salient features” of the relationship between the parties: Brookfield at [4], [30]. Crennan, Bell and Keane JJ referred to arguments based on “salient features” without apparent disapproval: Brookfield at [115]. Their Honours further made observations regarding the recovery of economic loss in the common law: Brookfield at [121]-[126].

Crennan, Bell and Keane JJ observed that the High Court has accepted that the general rule of the common law is that damages for economic loss which is not consequential upon damage to person or property are not recoverable in negligence even if the loss is foreseeable: Brookfield at [127], citing Woolcock at [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

The notion of “salient features”, or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury, was discussed by Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 (Stavar) at [102] (Simpson J (as her Honour then was) agreeing).

In Stavar, Allsop P provided at [103] a list or catalogue of 17 salient features, described as “a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content”: Stavar at [104]. Allsop P did not suggest that it was necessary to make findings about all such features in any given case and, whilst describing “foreseeability” as a salient feature, suggested that it is perhaps better expressed that the use of the salient features operates as a control measure on foreseeability: Stavar at [104], [106].

However, in Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215, Basten JA (with whom Beazley P (as her Excellency then was) and Sackville AJA agreed) stated at [36] that the value of such a catalogue or list is limited.

In Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2023] QCA 24 (Mallonland), whist referring to the primary judge’s recognition that recent binding statements of principle by the High Court relevant to the existence of a duty of care require identification of the “salient features”, Bond JA observed that “[w]hat is less clear is the methodology which should be employed in the consideration of those ‘salient features’”: Mallonland at [288]-[289] (Morrison JA and Williams J agreeing).

At [290], Bond JA referenced the following comments of Gageler J (as his Honour then was) in Brookfield at [169], in turn citing Sullivan v Moody at [49]:

Given that special leave to appeal has been given in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2023] HCATrans 138, it seems likely that the High Court is not finished with reviewing this issue.

The “salient features” identified by Allsop P in Stavar at [103] consist of the following:

It may be noted that “vulnerability” (the fourth factor in the above list) is to be understood as a reference to a plaintiff’s inability to protect itself from the consequences of a defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant: Woolcock at [23] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

Whether the posited duty is coherent with the existing body of law is also an important consideration: see Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [39]-[57] per Leeming JA (Macfarlan and Simpson JJA agreeing).

A postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member: Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J (as his Honour then was); [1985] HCA 41, referred to in Collins at [13] per Kirk JA; Roger Giles, “Duty of Care, Scope and Breach” (2009) 9 The Judicial Review 165 at 167.

In pleading a novel duty of care, it has been emphasised that the nature of the purported duty must be identified with precision: Mohareb v Kelso [2017] NSWCA 98 at [42] per Simpson JA.

That being said, there have been cases in which the alleged novel duty was never clearly defined by the claimant and the task of defining the duty (if any) was undertaken by the trial judge: e.g. Al Mousawy v Howitt-Stevens Constructions Pty Ltd [2010] NSWSC 122 (Al Mousawy).

In Al Mousawy, Hoeben J (as his Honour then was), in addressing a case against an engineering company, noted that the alleged duty of care and its contents “was never clearly defined” and that, to the extent that a definition was attempted, it sought to define the company’s duty in terms of breach: Al Mousawy at [64]. His Honour considered at [65] that “[t]o state the duty and its content in such a way is unhelpful and closer analysis is required to determine firstly whether a duty did exist and if so, its content”. Relevantly, Hoeben J proceeded to apply the salient factors approach set out by Allsop P in Stavar and concluded that the duty of care owed by the company to the plaintiff related only to the structural integrity of the building’s floors (which it had been contracted to examine) and that it did not owe any duty to him in relation to the ceilings: see Al Mousawy at [66]-[88].

A similar approach was taken by Lindgren J in Dale v Veda Advantage Information Services and Solutions Ltd (2009) 176 FCR 456; [2009] FCA 305 at [376], [379]-[417].

There is at least one case (albeit not in the context of a firm of solicitors) where an employer was found to have owed a duty of care in holding out an employee as being adequately and appropriately qualified. In Brus v Australian Capital Territory [2007] ACTSC 83 (Brus), the plaintiff claimed damages against a public hospital arising from complications suffered by her following a vaginal hysterectomy undertaken at the hospital by a registrar under the supervision of a specialist gynaecologist. Relevantly, the registrar had been rated as unsatisfactory for surgical skills as a level two registrar, yet the hospital had held her out as a level three registrar to the specialist (the level at which a registrar would be permitted to perform a supervised vaginal hysterectomy). Connolly J found on the issue of the first defendant’s negligence as follows (at [61]-[62]):

The plaintiffs’ pleading of the case in negligence against Mr Polo, like its pleading of vicarious liability, was in terms of bald assertion.

Critically, the pleading simply asserted that Mr Polo owed a duty of care to “clients and prospective clients of Oracle Law”: CB 26[63(a)].

Dr Baron Levi did not at any point elaborate on what was described in the pleading as a “prospective client”.

There was nothing in the evidence which suggested in any way that Mr Pacifico or the plaintiffs were, on or after April 2018, proposing to be clients of Mr Polo and/or Oracle Law.

The difficulty with the pleading is that, at the time that the plaintiffs were presented with the investment opportunity by Mr Marino and at the time that they entered into the AMAs, as I have found, it is not evident that they could be properly said to be clients of Oracle Law.

In that context, when one has regard to the above-mentioned authorities, the facts regarding the investment proposal and entry into the AMAs, insofar as they relate to Mr Polo, do not give rise to an established category of duty of care, as the plaintiffs were not clients of Oracle Law (at least in relation to the relevant investment).

Essentially, while the plaintiffs pleaded that Mr Polo owed a duty of care to “clients and prospective clients of Oracle Law”, the question of whether and how the duty of care arose, or what the scope of such a duty would be, was not expressly dealt with in the plaintiffs’ written or oral submissions. There was no subsequent pleading that the plaintiffs were “clients” or “prospective clients” of Oracle Law and those terms were never defined or put in context. It was an assumption that was pleaded at a high level of abstraction.

Rather than develop the duty of care referred to in the pleading, the plaintiffs in this case (as in Al Mousawy) attempted on the hearing to define Mr Polo’s duty of care to them, and its content, in terms of breach. Specifically, that Mr Polo failed to inter alia: supervise and control the activities of Mr Marino; make clear to clients and recipients of Mr Marino’s correspondence the role he played within Oracle Law, in particular that he was not a solicitor; and cut off Mr Marino’s Oracle Law email access after they parted ways in April 2018. It is worth repeating Hoeben J’s comments that to state the duty and its content in such a way is unhelpful and closer analysis is required to determine first whether a duty did exist and if so, its content.

In the circumstances of this case, the relevant duty of care must be a duty relating to, or at least including, the risk of economic loss from the investment proposal and entry into the AMAs.

Some salient features of the case up to late August 2018 are that:

Mr Polo could have taken steps to prevent Mr Marino using his Oracle Law email address after April 2018. However, the nature of the harm alleged, being economic loss resulting from the investment proposal and entry into the AMAs, had no connection whatsoever to Mr Polo. While Mr Marino did use his Oracle Law email address to communicate with the plaintiffs regarding the investment, as well as plant the Oracle Law logo on his PowerPoint presentations about the investment, there was in no real sense any connection between the harm suffered by the plaintiffs and Mr Polo’s practice.

Further, as at August 2018:

Whilst in or about 2015 or 2016, though possibly earlier than that, Mr Polo became aware that Mr Marino had falsely informed his NAB branch (unbeknownst to Mr Polo) that Mr Marino had a 50% interest in Oracle Law, there were no subsequent instances of Mr Polo being aware that Mr Marino engaged in dishonest conduct.

While Mr Polo conceivably had some degree of control over Mr Marino in respect of carrying out matters relating to the business of Oracle Law, he obviously had no ability to control Mr Marino’s actions otherwise, particularly after April 2018. The “control” which Mr Polo could have exercised over Mr Marino’s access to his Oracle Law email address after April 2018 ought not, in any material sense, be considered as any degree of control which Mr Polo could have exercised to avoid the economic loss which the plaintiffs suffered for the purposes of establishing a duty of care. Indeed, many of Mr Marino’s interactions with Mr Pacifico and Mr Parrella regarding the investment proposal were in person.

For the above reasons, it would be inappropriate to impose a novel duty of care on Mr Polo to the plaintiffs to avoid economic loss as a result of the investment proposal and AMAs. Further, given the lack of clarity in the plaintiffs’ pleadings and submissions on the duty of care question, for me to do so at this point would be, in my view, procedurally unfair to Mr Polo.

In any event, even if a duty were owed to the plaintiffs which Mr Polo had breached, there are other issues that arise which would likely create difficulties in respect of causation. These include the following difficulties.

In the above circumstances, I am not prepared to make a finding that Mr Polo is liable to the plaintiffs in negligence.

The pleaded claim in relation to vicarious liability against Mr Polo simply asserts that he is “vicariously liable for the negligence of” Mr Marino by reason of matters previously pleaded, which relevantly state that: Mr Polo was at all material times a solicitor and the principal of Oracle Law; Mr Marino was at all material times an employee or officeholder of Oracle Law; and Mr Marino owed a duty of care to the plaintiffs in relation to their capital investment arising out of the AMAs, which he breached and caused the plaintiffs’ loss: CB 25[61].

Dr Baron Levi made detailed submissions in relation to vicarious liability, addressing the question of whether Mr Marino was an employee of Oracle Law and whether his (alleged) tortious acts were committed in the course or scope of his employment: POS [78]-[120].

In closing submissions, Dr Baron Levi referenced his POS regarding vicarious liability: T 438.3-439.8, 439.25-440.1.

Dr Baron Levi submitted that, because the test of vicarious liability centres on the principle of ostensible authority and because Mr Marino was still held out to be an employee of or connected to Oracle Law by virtue of the fact that he still had his Oracle Law email address and that had not yet been revoked, he still was operating under an ostensible authority that had been held out: T 449.30-.37. I take that submission to be in reference to the times at which the investment proposal was made and the plaintiffs entered into the AMAs in July to August 2018.

In summary, the principles in relation to vicarious liability are as follows.

It is a well-established general law principle that an employer is vicariously liable for the negligent act of an employee undertaken within the scope of his or her employment: Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 at [33] per Basten AJA (Brereton (as the Commissioner then was) and Kirk JJA agreeing); New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [40] per Gleeson CJ; Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [14], [16] per Leeming JA (Meagher and Emmett (as his Honour then was) JJA agreeing). There may be cases where a relationship may give rise to vicarious liability on the part of a principal notwithstanding that the tortfeasor was not an employee of the principal: e.g. Bird v DP (A Pseudonym) (2023) 69 VR 408; [2023] VSCA 66 (Bird) at [114]. However, in a commercial context, the relevant distinction ordinarily is between, on the one hand, an employment relationship, and on the other hand, the relationship of the principal with an independent contractor: Bird at [113]; Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 at [301] per Hayne J. So much did not appear to be challenged in this case.

Recently in CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 410 ALR 479 (Schokman) at [49]-[53], Edelman and Steward JJ provided a cogent analysis of the way in which the term “vicarious liability” has been used (footnotes omitted):

This case is only concerned with vicarious liability as described in the second area of law outlined by their Honours.

Where there is a claim in proceedings relating to employment, it is necessary to identify what is in issue. The legal approach to different issues is nuanced. For example, ascertaining the “character” or “characterisation” of the relationship between a putative employee and his putative employer is a separate question from ascertaining the identity of an employer: Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as liquidators of Spitfire Corporation Limited (in liq) (2023) 111 NSWLR 446; [2023] NSWCA 118 (Resilient) per Gleeson JA at [161]-[162] (White JA at [198] and Brereton JA at [201] agreeing).

In order to resolve the characterisation of a relationship as being either one of employment or one of principal and independent contractor, it has been said that the “totality of the relationship” between the parties must be considered: see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29 per Mason J (as his Honour then was); [1986] HCA 1 (Stevens); Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 (Hollis) at [24] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1 (Personnel Contracting) at [34] per Kiefel CJ, Keane and Edelman JJ.

In ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532; [2011] FCA 1204, Perram J summarised at [29] the relevant principles as follows:

However, some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other: Personnel Contracting at [34].

In Hollis, the High Court affirmed what has been described as the “multifactorial approach” in finding that the bicycle couriers of the respondent courier company were its employees. In that case, the relevant factors demonstrating an employment relationship included that: the couriers were not providing skilled labour or labour which required special qualifications; the couriers had little control over the manner of performing their work; the couriers were presented to the public and to those using the courier service as “emanations” of the courier company, in the sense that they wore the company’s livery; in terms of deterrence, the company knew the danger to pedestrians presented by its bicycle couriers and the failure to adopt effective means for personal identification of those couriers by the public; the company superintended the couriers’ finances; and there was considerable scope for the actual exercise of control over the couriers.

Meanwhile, in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 (Sweeney), a majority of the High Court found that a refrigerator mechanic contracted by the respondent company, which was required to service and maintain the refrigerator at a convenience store, was not an employee of the respondent. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ distinguished the circumstances from Hollis, finding that the mechanic essentially conducted his own business: Sweeney at [33]. The circumstances on which the majority placed particular weight included that: the mechanic invoiced the respondent for each job that he did; the respondent was concerned to verify that the mechanic had proper workers’ compensation and public liability insurance; the respondent did not control the way in which the mechanic worked; the mechanic supplied his own tools and equipment, and brought his skills to bear upon the work to be done; and the mechanic was not presented to the public as an emanation of the respondent: Sweeney at [31]-[32].

When considering the employment relationship, in Personnel Contracting Kiefel CJ, Keane and Edelman JJ relevantly observed:

In Resilient, Gleeson JA stated at [159]:

In the recent decision of EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 (EFEX Group), Katzmann and Bromwich JJ observed that the High Court decisions in Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254; [2022] HCA 2 (Jamsek) have marked a shift of focus away from “the totality of the relationship between the parties” under the multifactorial analysis, giving primacy to the contractual arrangement between the putative employer and employee. Thus, their Honours relevantly observed at [10]-[14]:

In the United Kingdom, it appears to be accepted that relationships “akin” to that of an employer/employee can satisfy the relationship test for vicarious liability, where the individual carries on activities as an integral part of the business activities carried on by the defendant and for its benefit: Cox v Ministry of Justice [2016] AC 660 at [24] per Lord Reed JSC (with whom Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Dyson MR and Lord Toulson JSC agreed); see also Fleming’s at 503 [17.80]. Whether a relationship “akin” to employment ought to be determined for the purposes of vicarious liability requires looking at the details of the relationship: Barclays Bank v Various Claimants [2020] AC 973 at [27] per Baroness Hale of Richmond (with whom Lord Reed JSC, Lord Hodge DPSC, Lord Kerr of Tonaghmore and Lord Lloyd-Jones JJSC agreed).

However, that extension of vicarious liability beyond the employment relationship has not generally taken favour in Australia thus far: see e.g. Schokman at [51]; Sweeney at [33]; cf s 6G Civil Liability Act 2002 (NSW) (in the context of child abuse).

In determining whether an individual is conducting his or her own business, several indicia have been considered, two of which are particularly relevant here.

The existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment: Stevens at 24 per Mason J. As Mason J observed in Stevens, the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it. In Personnel Contracting Kiefel CJ, Keane and Edelman JJ stated at [73]:

Dr Baron Levi’s submissions did not refer to Personnel Contracting or Jamsek. In relation to employment, Dr Baron Levi submitted that the following matters were significant as identifying Mr Marino with the business of Oracle Law, to the knowledge of Mr Polo, so as to make Mr Marino an employee (POS [86]):

In addition, Dr Baron Levi submitted that (POS [87]):

In relation to deterrence, Dr Baron Levi submitted that holding Mr Polo liable for the wrongs of Mr Marino would encourage employers to take steps to reduce the risk of future harm: POS [89].

In relation to the right of control, Dr Baron Levi referred to Mr Polo enjoying a right of control over Mr Marino in Mr Marino’s performance of his mandate of carrying out business and marketing work: POS [90]. He submitted that Mr Marino was afforded considerable latitude in the performance of his role of being a business development manager, and that this was entirely consistent with Mr Marino being an employee: POS [92].

In respect of Mr Marino’s conduct in the business, Dr Baron Levi submitted that Mr Marino was an integral part of Oracle Law, as opposed to operating his own business providing services to Oracle Law. In this regard, Dr Baron Levi submitted as follows:

In relation to remuneration, Dr Baron Levi submitted (POS [95]):

Ultimately, in relation to employment, Dr Baron Levi submitted as follows (POS [99]-[100]):

For an employer to be held liable for the tort of an employee the common law requires that the tortious act of the employee be committed in the course or scope of the employment: Schokman at [12] per Kiefel CJ, Gageler (as his Honour then was), Gordon and Jagot JJ; Prince Alfred College v ADC (2016) 258 CLR 134; [2016] HCA 37 at [40] per French CJ, Kiefel (as her Honour then was), Bell, Keane and Nettle JJ. Regarding this enquiry, in Schokman their Honours observed at [20]-[21] (footnotes omitted):

In Schokman, the employee’s drunken act of negligence in urinating on the claimant while in shared accommodation was found to have had no real connection to his employment, despite the shared accommodation arrangement being required under his employment contract: Schokman at [46] per Kiefel CJ, Gageler, Gordon and Jagot JJ, [85], [88] per Edelman and Steward JJ.

In Bugge v Brown (1919) 26 CLR 110; [1919] HCA 5, Isaacs J considered that the liability of the employer “must cease where the relation [of employment] itself ceases to exist” (at 118, quoting Quarman v Burnett (1840) 6 M & W 499 at 509 [151 ER 509 at 514] per Parke B), and “if the [tortious] act done was utterly unconnected with anything [the employee] was employed to do anywhere, it was outside the sphere of his employment” (at 119).

The distinction between whether there is an employer/employee relationship and whether what was done was in the course of that employment was expressed by Gordon J in Personnel Contracting at [191] as follows (footnotes omitted):

In relation to the facts regarding course of employment, Dr Baron Levi submitted as follows (POS [111]-[118]):

To enliven vicarious liability, Dr Baron Levi submitted that, broadly speaking, what was required to be established was that Mr Marino was an employee of Oracle Law (as opposed to an independent contractor) and that the tortious acts and omissions of Mr Marino were committed in the course or scope of employment: POS [79], [101].

In light of Personnel Contracting and Jamsek, it is clearly important to address the question of whether a contract existed as between Mr Marino and Mr Polo and, if so, the terms of the contract. Cases of vicarious liability arising from non-contractual relationships have tended to be somewhat limited, such as in the context of church organisations: see e.g. Bird; O’Connor v Comensoli [2022] VSC 313. Part of the reason for extending vicarious liability to those cases may be due to the sui generis nature of the relevant relationship: Bird at [120]. This is not such a case.

As I have found above, the evidence in this case did not establish that there was a contract between Mr Polo and Mr Marino in respect of his work at Oracle Law. Given that the characterisation of the relationship between the parties depends on their contractual rights and not on circumstances, facts or events that do not affect those rights (EFEX Group at [10]), that creates some difficulty to any finding that Mr Marino was an employee of Mr Polo or Oracle Law, and hence that Mr Polo could be held vicariously liable for Mr Marino’s negligence. On one view, that could be determinative of the vicarious liability enquiry.

Notwithstanding the above, I note the following matters as relevant to the issue of whether there was a relationship of employment between Mr Marino and Mr Polo.

There was no “target” or any requirement for Mr Marino to refer a certain number of clients in a given time period: cf EFEX Group.

While it might be said that there was a limited degree of exercise of control by Mr Polo in respect of him giving directions to Mr Marino, for example, to make certain enquiries with a client, one cannot point to the existence of a right of control. There was no requirement for Mr Marino to devote all of his time during working hours, or indeed any particular amount of time at all, to his work in Oracle Law. Indeed, he operated his own businesses, including CBG, at the office premises.

As Mr Marino noted, he had paid for the initial set up costs and hosting of the Oracle Law website domain since its establishment up to at least March 2019: CB 2013. There was no right to reimbursement from, or contribution by, Mr Polo.

As referred to above, in respect of the other side of the arrangement, there was no specific evidence as to what legal services Mr Polo provided to Mr Marino. There was no evidence that Mr Polo paid Mr Marino any form of salary or regular remuneration, and such a proposition was expressly denied by Mr Polo: T 203.37-.48. While there were at least two invoices which were created by Mr Marino with the Oracle Law letterhead and sent to clients of Oracle Law (being Mr Mackay/MEG and Pharma Active), there was no indication that Mr Marino had a right to invoice clients directly and, indeed, Mr Polo stated that invoices were always generated by him and never included Mr Marino’s time spent on a matter: T 150. That is despite Mr Marino accepting that he invoiced clients for work that he did for Oracle Law: T 303.23-25.

When comparing the facts of this case to those in EFEX Group, it is apparent that the present facts lean even more against a finding of an employment relationship.

Dr Baron Levi placed great emphasis on the way in which Mr Marino was “clothed” by Mr Polo with the title “Business Development Manager”, and with business cards and an Oracle Law email which reflected the same, which evidently made Mr Marino identifiable with the business of Oracle Law: e.g. POS [87]. In respect of this submission, the observations of Katzmann and Bromwich JJ at [42] of EFEX Group are particularly relevant:

Rather tellingly, the person found to be an independent contractor in EFEX Group was also given the title “Business Development Manager”.

While I would give some weight to Dr Baron Levi’s submission, in light of what their Honours stated in EFEX Group, I do not consider that the way in which Mr Marino was presented as a representative of Oracle Law disclosed anything decisive about the nature of the legal relationship between Mr Marino and Mr Polo. I do not consider that Mr Marino and Mr Polo’s relationship could be characterised as one of employment. That conclusion seems even more apparent after April 2018 when the shared office premises were vacated and their contact largely ceased.

This brings me to a further difficulty with the vicarious liability case which arises in respect of the second limb, namely that the tortious acts and omissions of Mr Marino were not committed in the course or scope of his employment.

Mr Polo stated that he no longer communicated with Mr Marino from April 2018: T 136, 160. In re-examination, he clarified that he and Mr Marino “had a few sporadic matters that needed to be completed”, which included some conveyancing matters and recovery of a debt owed by Mr Dan Smith: T 395. However, the latter was a loan made to Mr Smith personally by Mr Polo and Mr Marino, and had nothing to do with Oracle Law.

If there was any continuing “employment” relationship as between Mr Polo and Mr Marino after April 2018, it was significantly limited to the few ongoing conveyancing matters that he had referred to Oracle Law. The proffering of the investment proposal and the AMAs to the plaintiffs seems to extend well beyond that scope and have no connection with what Mr Marino would have been employed to do.

The specific “tortious acts and omissions” of Mr Marino are pleaded as being in respect of his failures as asset manager under the AMAs.

However, neither Oracle Law nor Mr Polo had investment schemes as any part of its practice. There is no evidence that, in promulgating the AMAs, Mr Marino was doing so in the course or scope of the duties that he had carried out or undertaken for Oracle Law.

In the last 10 lines of transcript before judgment was reserved, Dr Baron Levi made the submission that, although the “relationship ceased” between Mr Polo and Mr Marino (T 449.9), “Mr Marino was still… held out to be an employee of or connected to Oracle Law by virtue of the fact that he still had his Oracle Law email address and that that had not yet been revoked”: T 449.30-.37. He submitted that, “because the test of vicarious liability centres on the principle of ostensible authority”, that means that “he still was operating under an ostensible authority that had been held out”. In light of the principles I have set out above, the test for vicarious liability does not “centre” on “the principle of ostensible authority”. In any case, for the reasons I have stated above, Mr Marino’s continued access and use of his Oracle Law email does not demonstrate anything decisive about Mr Marino’s putative employee status, let alone the scope or course of his employment.

In light of Dr Baron Levi’s reference to the notion of ostensible authority within the realm of employment and vicarious liability (as distinct from ostensible authority within the realm of the law of agency), the proposition that there was some form of holding out by Mr Polo of Mr Marino begs the question: what is conveyed or held out where one party enables another or provides another with an email address and a domain name? Dr Baron Levi did not direct my attention to any specific caselaw on the issue. So far as my researches have been able to glean, there is not a great deal of commentary bearing upon the issue.

What commentary there is does not suggest that the mere fact that person A provides person B with an email address itself clothes person B with carte blanche authority to act on behalf of person A.

In Law of Agency, Dal Pont addresses the issue at [20.46] as follows:

As will be readily observed from the above, much of the authority upon which Dal Pont relies is American authority. Nonetheless, in the absence of reference to any other caselaw which bears upon the matter, the above suggests that I should be cautious in making assumptions as to the extent of any authority conveyed by the provision of an email address with the putative principal’s domain name. In making that observation, I note what I have said above that no case of agency was pleaded.

In the above circumstances, I am not prepared to make a finding that Mr Polo is liable to the plaintiffs on the basis of vicarious liability.

The claim against Mr Polo in relation to the alleged breach of the ACL is set out in CB 25[62].

The claim is essentially that:

Regrettably, Dr Baron Levi did not specifically elaborate on the misleading or deceptive conduct case against Mr Polo. I proceed in dealing with this claim without the benefit of substantive submissions from the parties.

I have already referred to the necessity to distinguish between the operation of the ACL and how it operates as a law of the Commonwealth and as a State law. For present purposes, I will proceed on the basis that most of the relevant “conduct” of Mr Polo occurred by use of the internet, specifically email, as this was the predominant means by which any inference could have been made that Mr Marino was engaged in legal practice. In this way, the ACL would be applicable as a law of the Commonwealth.

The pleaded conduct of Mr Polo, as set out above, may be characterised essentially as a form of omission or failure to speak.

Section 2(2)(a) of the ACL relevantly provides that a reference in the ACL to “engaging in conduct” is a reference to “doing or refusing to do any act”, and s 2(2)(c)(i) relevantly provides that a reference to “refusing to do an act” includes a reference to “refraining (otherwise than inadvertently) from doing that act”.

Referring to the judgments in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31, the Court of Appeal stated in Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186 at [42]:

There is no general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 per Black CJ, see also 41 per Gummow J (with whom Cooper J agreed). In Rafferty v Madgwicks (2012) 203 FCR 1; [2012] FCAFC 37, the Full Court observed at [278] (emphasis in original):

As I have stated above in relation to Mr Marino’s use of his Oracle Law email address, neither Mr Pacifico nor Mr Parrella pointed to anything specific in email correspondence sent to them by Mr Marino which gave them the impression that Mr Marino was a lawyer carrying out a form of legal work.

There was no indication that Mr Polo had known that Mr Marino had represented himself to the plaintiffs to be a lawyer. Nor was there any indication that Mr Polo had known of Mr Marino making any similar representations in the past (as distinct from representing that he had an ownership interest in Oracle Law).

Contrary to the plaintiffs’ pleaded ACL claim against Mr Polo, I do not consider that his conduct, as pleaded, conveyed a representation that Mr Marino was entitled to engage in legal practice. In any case, while I have found that Mr Marino did, at times, engage in legal practice, his Oracle Law title of “Business Development Manager” (or its abbreviation “BDM”), business card and email address did not of themselves represent Mr Marino to be a lawyer. In the circumstances, I do not consider that there was a reasonable expectation on the part of Mr Polo to disclose that Mr Marino was not a lawyer or entitled to engage in legal practice. Mr Polo’s alleged failures, of themselves, did not give rise to an inference that Mr Marino was a lawyer or entitled to engage in legal practice. Mr Polo’s conduct was not misleading or deceptive or likely to mislead or deceive.

Even if I were incorrect in that conclusion, I find the plaintiffs’ pleading problematic in that the claim for damages under s 236 of the ACL is said to arise by reason of Mr Marino’s representations, not any representation of Mr Polo: CB 25[62(g)]. It cannot be said that the plaintiffs’ loss arising out of the investment proposal and the AMAs was suffered “because of” the pleaded conduct of Mr Polo: s 236(1)(a) ACL.

In the above circumstances, I am not prepared to make a finding that Mr Polo is liable to the plaintiffs on the basis of any breach of the ACL.

The relief sought by Mr Polo against Mr Marino, namely for “contribution towards or indemnity for” any verdict recovered against him by the plaintiffs, is relevantly set out in the statement of cross-claim, and is said to be based upon the following “pleadings and particulars” (CB 65-66):

Mr Jamieson did not address any submissions in relation to the entitlement of Mr Polo to succeed on the cross-claim against Mr Marino.

However, in light of the findings that I have made, there is no occasion to address the cross-claim as there was no verdict recovered against Mr Polo by the plaintiffs.

However, if I am incorrect in relation to that conclusion, I note that the pleaded claim for indemnity against Mr Marino by Mr Polo does not demonstrate any basis, whether contractual or otherwise, so as to enliven an entitlement or right of indemnity by Mr Polo against Mr Marino for the particular loss suffered by the plaintiffs.

At the commencement of these reasons, I made some observations regarding the obligation of parties to conduct litigation with a view to resolving the real issues in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. I also made an observation regarding this on the seventh and final day of the hearing: T 439.17-.21.

The plaintiffs and their legal representatives left no stone unturned in their efforts to secure relief against the defendants. The proceedings spanned seven days of hearing, and there were six volumes of the Court Book incorporating 2,745 pages of materials.

Early on the first day of the hearing as Dr Baron Levi was outlining the plaintiffs’ case, he essentially accepted my preliminary observation that the contractual case against Mr Marino was straightforward and might have taken about 20 minutes or so to articulate, and that the rest of the claim was directed to effectively proceeding against Mr Polo: T 28.25-.50, 29.34-30.26. According to Dr Baron Levi, the particular reason why the claim was brought in this Court was to invoke its inherent jurisdiction as to the control and discipline of solicitors in its compensatory arm: T 29.29-.32.

There is an obligation on the parties and their legal practitioners to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the CPA. Further, there is a statutory dictate that the procedures of the Court should be implemented with the object of resolving the real issues in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute: s 60 CPA.

Those preparing the Court Book did not heed the pre-trial directions for email chains to be disassembled and placed in chronological sequence, and for the Court Book not to contain duplicates of the same document. The result was that there were numerous copies of the certain emails and other documents scattered throughout the Court Book, and email chains often appeared in reverse chronological order.

The Court Book contained significant material to which neither of the active parties took me. Without being exhaustive, I note the following.

The result was that about 35% of the Court Book was not referred to during the hearing and the balance of the Court Book contained numerous duplications of documents.

In my estimation, the presentation of the Court Book in the manner that I have described inhibited the efficient and smooth running of the hearing. Further, it impeded my consideration of the evidence and the issues in preparing these reasons for judgment.

More generally, the parties’ approach to the case begs the question of how much time (especially court time) and effort ought to be committed to recovering $10,000 for one plaintiff and $200,000 for another plaintiff, and defending those claims. I have no express reason to doubt that the parties and their legal representatives were well-intentioned in their endeavours to prepare the case. However, the proportionality issue concerns me. In the above circumstances, I require the parties to specifically address the amount of costs incurred and provide some breakdown of the costs, so as to enable me to address the question of costs appropriately and in light of s 60 of the CPA.

There should be judgment in favour of the plaintiffs against Mr Marino on the contractual claim. The plaintiffs’ claims against Mr Polo should be dismissed.

I direct the parties to bring in short minutes of order to give effect to these reasons for judgment and to provide any evidence (including the amount of costs incurred and what those costs related to) and any submissions on costs.