On Wednesday (11 December), after Harmer gave evidence on a media statement that lashed out at Super Retail Group for its treatment of Farrell and Berczelly, the court closed so the retailer’s counsel, John Sheahan KC, could speak openly about details that are currently the subject of a suppression and non-publication order.

It made it all the more shocking when Farrell and Berczelly’s counsel, Shane Prince SC, told Justice Lee on Thursday morning that he had to withdraw from the matter because he was no longer in an “ethical position to continue to appear” for either of his clients.

The court heard disclosure had been waived over a file note that attributed statements to Prince, which would have gone to the issue of what advice – if any – Harmer had received about the dispute.

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Prince made an application to adjourn the hearing, but given Justice Lee has already formed “preliminary views” and has a full timetable for next year, it would have potentially pushed the matter into 2026.

When Sheahan raised the possibility of Prince’s junior barristers answering to the issues in dispute – and thereby allowing Prince to remain on as counsel – Justice Lee stressed he would “certainly not be embarrassed” if that was the course taken.

“You have got two juniors [and] really, juniors are expected to take over a case if there is a problem. I had to do it myself … everyone has been in a situation where a junior counsel had to step in,” he said.

However, Prince said he was still concerned about his involvement.

“In terms of my junior doing it [while I’m here], I am the captain of the ship, and that’s that, I don’t see that I can disengage myself,” he said.

This left Farrell and Berczelly’s case in the hands of barrister Paul Moorhouse, who first walked the former through additional evidence.

Appearing from a relative’s house after hospitalisation earlier this week, Farrell insisted she and Berczelly had been kept informed of the negotiations from 4 to 6 May at every step of the way.

“Typically, even if [Harmer] had simply left a message [with SRG’s lawyers], he would tell us,” Farrell said over the video link.

On the question of how they felt in the days following the alleged deal reached on 6 May to enter a binding settlement agreement, Farrell said she and Berczelly were concerned to ensure there was “nothing cute” in the deed that would soon be sent over by SRG.

“We were extremely apprehensive, extremely nervous that something cute would be included in any deed served up and, as it transpired, that is exactly what happened, as we see it,” Farrell said.

At the heart of the dispute was the negotiations between Harmer and Allens solicitor Sonia Millen, on behalf of SRG, over the first weekend of May. Harmer gave evidence that this was at times contentious, but his clients had agreed with SRG’s terms by the end of the Monday.

Having arrived at this so-called deal orally, Prince said in opening submissions it was “quintessential to the solicitor’s handshake and the requirement to honour a solicitor’s handshake”.

In similar submissions in closing, Moorhouse said if Justice Lee were to take an objective view of the matter, he would find there was a binding agreement entered into between the parties on 6 May – no matter what had happened over the next week.

“[It is like] looking at an Indigenous dot point when it’s right there, and what we say Your Honour needs to do is step back and look at the painting and see the picture that had emerged by the 6 May acceptance [of the offer],” Moorhouse said.

However, some details still troubled Justice Lee.

For one, Harmer had emailed Allens after the alleged oral deal had been struck to say it was “subject to deed”.

“If I was acting for a client who really wanted to settle and I had an offer which I thought … was worthy of acceptance and I had instructions to accept it, I’d tell you what I’d do, I’d make it perfectly clear … and I’d write on one page, or one sentence email, that I unconditionally accept that offer,” Justice Lee said.

“What I wouldn’t do is continually go back with vague emails, and I certainly wouldn’t go back and say something is subject to a deed – that seems to me to be a real problem.”

As for the second, having believed SRG had breached the alleged settlement agreement, Harmer went back to Allens with further demands from his clients. During his evidence, he said this was due to the “gross mistrust” that had arisen after 6 May.

Justice Lee said had he “shook hands as a solicitor”, he would not have gone back to change the deal. If asked by his clients to do so, Justice Lee added he would have told them no.

“That’s to the contrary of what you did, it’s 180 degrees from what you did, and that’s the thing that troubles me,” Justice Lee said.

In much shorter closing submissions, Sheahan said the term “subject to deed” made it impossible for the court to find that any binding deal had been struck between the parties on 6 May.

“The idea that this fraught dispute, of great seriousness and reputational significance to a listed company and senior executives, was objectively contended by both parties to be entirely resolved by acceptance of oral terms, not reduced to writing, accepted by a lawyer using the term ‘subject to deed’, that notion is properly described as fanciful,” Sheahan said.

Justice Lee said he accepted that proposition.

The decision has been reserved with the hope the judgment can be delivered before Christmas Eve.