Federal Court of Australia

Hargreaves v BT Funds Management Limited [2026] FCA 1362

ORDERS

THE COURT ORDERS THAT:

1.    A Registrar of the Court provide copies of the following documents to the Legal Professional Board of Tasmania and the Queensland Legal Services Commission for consideration as to the conduct of the lawyer for the applicant, Mr Sean Clement McNally:

(a)    the originating application dated 4 June 2026;

(b)    the statement of claim dated 4 June 2026;

(c)    the interlocutory application dated 4 June 2026;

(d)    the affidavit of Beverley Kaye Hargreaves affirmed on 16 May 2026;

(e)    the affidavit of Leeann McKnight affirmed on 25 June 2026;

(f)    the affidavit of Thomas MacDonald affirmed on 23 June 2026;

(g)    the affidavit of Sean Clement McNally affirmed on 31 July 2026;

(h)    the orders of the Court made on 26 June and 15 and 24 July 2026; and

(i)    a copy of these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

The originating application

1    By originating application dated 4 June 2026 filed in the name of the applicant, Beverley Kaye Hargreaves, orders were sought against the trustee of Ms Hargreaves’ superannuation, BT Funds Management Limited as trustee for BT Panorama Superannuation Fund (BT Funds), including:

(a)    a declaration that BT Funds has no lawful authority to retain, restrict or control funds beneficially owned by Ms Hargreaves which were paid from her superannuation pension account on or about 2 October 2025 and subsequently returned to or received by BT Funds; and

(b)    orders requiring BT Funds to restore full access to Ms Hargreaves’ superannuation account and funds “to enable her to withdraw all funds forthwith”.

2    An interlocutory application dated 4 June 2026 was also filed (strangely, on 25 May 2026) in the name of Ms Hargreaves, seeking interlocutory orders against BT Funds pending the final determination of the proceeding, including that:

(a)    BT Funds continue to make all presently existing monthly pension payments to Ms Hargreaves without interruption; and

(b)    BT Funds urgently restore to Ms Hargreaves reasonable access to funds beneficially owned by her and presently withheld by BT Funds, including by permitting reasonable withdrawals and transfers to accounts nominated by Ms Hargreaves in her name.

3    Ms Hargreaves is 74 years old and is a member of the BT Panorama Superannuation Fund and holds a BT Panorama Pension account.

4    The originating application was supported by a statement of claim also dated 4 June 2026 and filed (again, on 25 May 2026) in the name of Ms Hargreaves. In brief, the statement of claim alleges that, in early October 2025, Ms Hargreaves opened a bank account with Suncorp and sought to transfer $358,405 from her BT Panorama Superannuation account to her Suncorp account. It is further alleged that those funds were returned to Ms Hargreaves’ superannuation account without her authorisation.

5    The interlocutory application was supported by an affidavit purportedly made by Ms Hargreaves on 16 May 2026. In the affidavit, Ms Hargreaves purportedly deposes that her inability to access her superannuation funds had caused financial hardship and difficulty meeting living expenses, funding legal representation and paying for support services.

6    The originating application, interlocutory application and statement of claim were prepared and filed with the Court by Sean McNally of Storm Bay Law. The person who prepared the affidavit of Ms Hargreaves is not apparent from the face of the document, but the document was filed with the Court by Mr McNally.

First case management hearing

7    The proceeding was listed for case management on 26 June 2026.

8    On 25 June 2026, BT Funds filed an affidavit made by Leeann McKnight that day in response to the interlocutory application. Ms McKnight is employed as the Head of Complaints and Estate & Claim Management, BT Financial Group. In her affidavit, Ms McKnight deposed to a series of events that she described as ‘red flag’ events concerning Ms Hargreaves’ superannuation account. Those events suggested that Ms Hargreaves was not competent to manage her financial affairs and that her requests to withdraw funds from her superannuation account were being directed by a person called James Andrew McConvill (Mr JA McConvill). Ms McKnight described the steps taken by BT Funds to monitor and respond to potential financial abuse and unauthorised transactions affecting Ms Hargreaves accounts. Ms McKnight deposed that, between November and December 2025, Mr McNally sent multiple demands seeking release of Ms Hargreaves funds, increases to pension payments, and payment of his invoices. BT Funds refused to act on those demands without satisfactory authority, due to ongoing concerns regarding capacity, undue influence and member protection. Ms McKnight further deposed that she had been informed by Victoria Police that they were conducting a fraud investigation into the circumstances involving Ms Hargreaves.

9    At the case management hearing, Mr McNally appeared and informed the Court that his instructions from Ms Hargreaves had been withdrawn.

10    The legal representative of BT Funds, Mr Fryar, made brief submissions with respect to their concern whether the proceeding had been authorised by Ms Hargreaves and whether Ms Hargreaves’ affairs were being controlled or directed by others, and particularly Mr JA McConvill.

11    A representative of Victoria Police, Detective Senior Constable Redwood, appeared at the hearing to inform the Court of their ongoing investigation into Ms Hargreaves’ affairs. DSC Redwood handed up an affidavit of Thomas MacDonald, who is a Detective Senior Constable of Victoria Police, affirmed 23 June 2026. The affidavit was not read in Court at that time, but was filed with the Court on 20 July 2026. The affidavit deposes to steps taken by Victoria Police in investigating potential fraud perpetrated against Ms Hargreaves by, amongst others, Mr JA McConvill. DSC MacDonald deposed that:

(a)    following a series of strokes in early 2024, Ms Hargreaves came into contact with Jim Michael McConvill (Mr JM McConvill), who purported to work for a registered National Disability Insurance Scheme (NDIS) provider and later introduced her to his son, Mr JA McConvill;

(b)    Mr JA McConvill thereafter became involved in assisting Ms Hargreaves with her day-to-day activities and aspects of her financial affairs;

(c)    information obtained from National Australia Bank indicates that approximately $300,000 has been sent from Ms Hargreaves’ NAB accounts to Mr JA McConvill since January 2024;

(d)    information obtained from BT Funds indicates that approximately $150,000 has been sent from Ms Hargreaves’ superannuation accounts to Mr JA McConvill; and

(e)    on 15 June 2026, Mr JA McConvill was arrested by the Financial Crime Squad.

12    DSC MacDonald further deposed that:

(a)    Mr McNally currently has a Principal Practicing Certificate with firm ‘Storm Bay Law’ with condition "not authorised to receive trusts monies";

(b)    Mr McNally has issued an invoice to Bank Australia seeking payment from Ms Hargreaves’ account for legal services in preparation of Ms Hargreaves’ affidavit filed in this Court, with the invoice purportedly from ‘Moreton Bay Law Firm’;

(c)    he contacted the Queensland Legal Services Board who advised that Mr McNally does not have a practicing certificate in Queensland;

(d)    the office address for ‘Moreton Bay Law’ is an empty office space;

(e)    preliminary analysis of Mr JA McConvill’s phone (obtained by search warrant) shows constant messages between Mr JA McConvill and Mr McNally regarding Ms Hargreaves’ finances; and

(f)    messages a few days prior to Ms Hargreaves affidavit being signed indicate that Mr JA McConvill prepared the affidavit and sought advice from Mr McNally before finalising it.

13    It should be stated that the affidavits filed in the proceeding have not been adduced in evidence and their contents have not been tested. Nevertheless, the affidavits raise serious questions whether Ms Hargreaves is aware of and has authorised the commencement of the proceeding, and Mr McNally’s conduct in purporting to represent Ms Hargreaves in the proceeding.

14    The proceedings were adjourned to 24 July 2026 to provide time to assess whether Ms Hargreaves intended to continue with the proceeding with new solicitors, or whether the proceeding would be withdrawn.

Mr McNally’s affidavit

15    Although Mr McNally informed the Court at the first case management hearing that his instructions had been withdrawn by Ms Hargreaves, Mr McNally did not at that time file a notice of ceasing to act.

16    On 15 July 2026, and in advance of the second case management hearing (scheduled for 24 July 2026), I made orders requiring Mr McNally to file and serve an affidavit by 22 July 2026 addressing the following matters:

(a)    the date on which Mr McNally was first instructed to act on behalf of the Applicant;

(b)    the manner in which and the persons from whom Mr McNally has received instructions to act on behalf of the Applicant, including:

(i)    whether other persons have provided instructions on behalf of the Applicant;

(ii)    whether other persons have been present when instructions have been provided by the Applicant; and

(iii)    the identity of all such persons;

(c)    the manner in which and the persons from whom Mr McNally was informed that the Applicant had withdrawn instructions for him to act;

(d)    whether Mr McNally has any business or personal relationship with any person referred to in paragraph (b) or (c); and

(e)    any steps taken by Mr McNally to confirm the Applicant’s capacity to act in her own best interests and provide instructions to Mr McNally.

17    Mr McNally provided the Court with an unsworn affidavit on 22 July 2026, stating that he had been unable to arrange to have the affidavit affirmed. On 31 July 2026, Mr McNally filed a copy of the affidavit which had been affirmed by him. Mr McNally's affidavit identifies him as practising with Storm Bay Law in Hobart, Tasmania. His email address has the domain name ‘moretonbaylaw’. In that affidavit, Mr McNally deposed that:

(a)    he was first instructed to act on 1 July 2025;

(b)    he received instructions directly from Ms Hargreaves via telephone calls, emails and online audio-visual meetings, that Mr JA McConvill was present on some occasions when instructions were taken, but Mr McNally did not take instructions from any person other than Ms Hargreaves;

(c)    he received the withdrawal of his instructions to act for Ms Hargreaves by text message from Ms Hargreaves;

(d)    ‘Dr James McConvill’ was his former employer for approximately 4 years from 2018 to in or about 2021 in the firm James McConvill & Associates and they have remained friends;

(e)    Mr JA McConvill referred Ms Hargreaves to his practice;

(f)    he was satisfied as to Ms Hargreaves’ capacity to provide instructions, having questioned her directly and having received a neuropsychological report dated 9 October 2025 which, he said, confirmed her capacity to appoint and revoke attorneys under an enduring power of attorney.

18    On 23 July 2026, Mr McNally filed a notice of ceasing to act in the proceeding.

Second case management hearing

19    As at the date of the second case management hearing on 24 July 2026, Ms Hargreaves had not appointed a replacement solicitor to represent her and did not appear at the hearing.

20    On the basis of the affidavits that had been filed with the Court in the proceeding, I concluded that there was a serious question whether the proceeding had been commenced with Ms Hargreaves’ knowledge and authority and whether she wished to continue the proceeding. I therefore determined that it was appropriate to stay the proceeding indefinitely until such time as the Court is satisfied that Ms Hargreaves, acting freely and in sound mind, wishes to continue the proceeding and is appropriately represented, and I made orders to that effect on 24 July 2026.

21    Following the case management hearing, a Senior Judicial Registrar of the Court wrote to Ms Hargreaves informing her that the proceeding had been commenced in her name, that Mr McNally had ceased to act and that material filed in the proceeding raised the possibility that she was unaware of the proceeding or no longer wished to pursue it. Ms Hargreaves was asked to advise whether she was aware of the proceeding, wished to continue it and intended to obtain legal representation. At the date of these reasons, no response has been received from Ms Hargreaves to that correspondence.

Referral to Legal Profession Regulators

22    The material filed in the proceeding raises questions whether Mr McNally has complied with his professional and ethical obligations as a legal practitioner, including his obligations to act only on instructions from his client, maintain his professional independence and integrity, act in his client’s best interests and discharge his paramount duty to the Court and the administration of justice. Whilst I make no findings about the conduct of Mr McNally in relation to Ms Hargreaves and this proceeding, Mr McNaly’s affidavit has not assuaged my concerns about his conduct. I consider that the material filed in the proceeding warrants investigation by the relevant regulatory bodies. The Legal Professional Board of Tasmania (LPBT) and the Queensland Legal Services Commission (LSC) are the appropriate regulatory bodies to determine whether there should be any further investigation in respect of the conduct of Mr McNally in connection with Ms Hargreaves and this proceeding. Accordingly, I will make orders for the following documents to be provided to LPBT and LSC:

(a)    the originating application dated 4 June 2026;

(b)    the statement of claim dated 4 June 2026;

(c)    the interlocutory application dated 4 June 2026;

(d)    the affidavit of Beverley Kaye Hargreaves affirmed on 16 May 2026;

(e)    the affidavit of Leeann McKnight affirmed on 25 June 2026;

(f)    the affidavit of Thomas MacDonald affirmed on 23 June 2026;

(g)    the affidavit of Sean Clement McNally affirmed on 31 July 2026;

(h)    the orders of the Court made on 26 June and 15 and 24 July 2026; and

(i)    a copy of these reasons.

Associate:

Dated:    14 September 2026