Prior judgment agreed with law firm that there was an error about compensatory damages
The Australian High Court found no basis to reopen its 5 November 2025 judgment, which agreed with a firm of solicitors that an appellate court had erred in upholding and remitting an ex-husband’s claim for further compensatory damages.
Before their marriage, the first respondent Mr Daily (a pseudonym) and Ms Daily (a pseudonym) purported to execute a financial agreement (BFA) for how to address their property and financial resources after a breakdown of the marriage under Pt VIIIA of the Family Law Act 1975 (Cth).
The appellant firm represented Mr Daily in preparing the BFA. Many years later, the marriage ended.
Ms Daily applied to set aside the BFA as void for being uncertain and due to a material change in circumstances in the care, welfare, and development of the children of the marriage since the BFA’s execution, with hardship resulting if the court would not set aside the agreement.
On the other hand, Mr Daily claimed negligence against the firm regarding its advice about the BFA drafting.
The Federal Circuit and Family Court of Australia (FCFCOA) (Division 1) granted Ms Daily’s application to set aside the BFA and partly upheld Mr Daily’s negligence claim.
The Division 1 court determined that the firm failed to advise Mr Daily about what would occur upon the birth of a child and whether that might constitute a material change in circumstances.
Mr Daily appealed against the Division 1 court’s dismissal of the rest of his negligence claim against the firm.
The appellate court of the FCFCOA (Division 1) allowed Mr Daily’s appeal and remitted the rest of the negligence claim for a further hearing at first instance.
The firm asserted that the Limitation of Actions Act 1936 (SA) statute-barred the negligence claim against the firm because the loss or damage due to the negligence happened at the time of the BFA’s execution or at the time of the marriage.
On the other hand, Mr Daily alleged that the loss or damage due to the negligence happened when the couple separated.
After oral argument, the firm applied for leave to amend its notice of appeal to allege that the portion of Mr Daily’s negligence claim that the Division 1 court had remitted was bound to fail because he failed to adduce evidence of the terms or scope of a financial agreement drafted with reasonable care and skill addressing the contingency that there might be children of the marriage.
Mr Daily countered that the amended notice of appeal sought to introduce a ground of appeal that the firm did not raise before the appellate court via a notice of contention and that did not reflect an argument before the Division 1 court.
On 5 November 2025, in R Lawyers v Mr Daily [2025] HCA 41, the High Court granted leave for the appellant firm to amend its notice of appeal to avoid leaving the proceedings in an unsatisfactory state.
The High Court allowed the appeal and set aside orders 2, 3, and 4 of the Full Court of the FCFCOA (Division 1) on 17 October 2024.
In place of those orders, the High Court dismissed Mr Daily’s appeal, directed the firm to pay the second respondent’s appeal costs, and ordered Mr Daily to pay the firm’s appeal costs.
The High Court confirmed that Mr Daily’s action against the firm was not statute-barred. Based on the evidence, the High Court held that the firm’s negligence did not cause him any loss or damage until the separation,
According to the High Court, it should allow the firm to amend its notice of appeal and should uphold the additional appeal ground.
The High Court acknowledged that the firm did not file a notice of contention regarding the additional appeal ground before the appellate court.
However, the High Court explained that this issue only arose from the appellate court's reasoning and the unconfined remittal order. The High Court ruled that Mr Daily failed to adduce evidence of:
In an application filed on 14 July 2026, Mr Daily sought to clarify the procedural consequences of the High Court’s 5 November 2025 orders. Alternatively, he wanted to vary those orders.
On 9 September 2026, in R Lawyers v Mr Daily [No 2] [2026] HCA 31, the High Court dismissed Mr Daily’s application with costs. Based on the affidavit evidence for Mr Daily, the High Court saw no justiciable controversy.
In any event, the High Court refused to exercise its jurisdiction to grant a declaration to “clarify” its orders, which should speak for themselves. The High Court pointed out that Mr Daily was asking for an advisory opinion that it could not give.
Here are some other recent decisions by the High Court of Australia.
On 12 August 2026, the court refused a conspirator’s sentence appeal, which asserted a miscarriage in the sentencing proceedings because of a procedural irregularity due to the conflict between senior counsel’s duty to the two men who pleaded guilty to conspiracy.
In a case where an applicant asserted an interest in properties she and her ex-partner had owned, a justice of the court issued a 22 April 2026 decision dismissing her ex parte application for leave to issue or file a constitutional or other writ without prior leave of a justice.
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