Campbell, Campbell & Cannon as Executors of the Will of the Estate of the late Donald Campbell, deceased v Campbell [2012] QSC 302

SUPREME COURT OF QUEENSLAND CITATION: Campbell, Campbell & Cannon as Executors of the Will of the Estate of the late Donald Campbell, deceased v Campbell [2012] QSC 302 PARTIES: DAVID ANTHONY CAMPBELL, TANIA ANN CAMPBELL, & BYRON JOHN CANNON as Executors of the Will of the Estate of the late DONALD CAMPBELL deceased (Applicants) v ELAINE MARGARET CAMPBELL (Respondent) FILE NO/S: BS No. 2337 of 2012 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 2 October 2012 DELIVERED AT: Brisbane HEARING DATE: 22 March 2012; 20 August 2012 JUDGE: Ann Lyons J ORDER: 1. The Respondent is to pay the Applicants’ costs of and incidental to the filing of the caveat and the application to remove the caveat to be assessed on the standard basis up to 20 December 2011; 2. The Respondent is to pay the Applicants’ costs of and incidental to the filing of the caveat and the application to remove the caveat to be assessed on an indemnity basis from 20 December 2011 to 21 February 2012; and 3. Donna Maree Sewell is to pay the Applicant’s costs of and incidental to the filing of the caveat and the application to remove the caveat to be assessed on an indemnity basis from 21 February 2012. CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE -- 1 of 20 -- 2 GENERAL RULE – OTHER CASES – OTHER CASES – Where Court has pronounced full force and validity of the deceased‟s Will and Applicants seek order that the solicitor for the Respondent pay the Applicants‟ costs on an indemnity basis – Where the Applicants allege that the solicitor for the Respondent acted in an unreasonable and irresponsible fashion in relation to a caveat lodged on behalf of the Respondent – Whether the solicitor should pay costs personally Succession Act 1991 (Qld), s 44(3) Re Fogarty; Kovacs v Fogarty (No 2) [2007] ACTSC 40 Frizzo & Anor v Frizzo & Ors (No 2) [2011] QSC 177 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 Windsor v Buxton [2001] QSC 81 De Groot, JK. Wills, probate and administration practice. (Brisbane: Queensland Law Society Incorporated, 1985) Williams EV, Sunnucks JHG and Mortimer HC. Executors, administrators and probate, 16th ed. (Launceston: Stevens, 1982) COUNSEL: P F Mylne for the Applicant S K McLeod for the Respondent (22 March 2012) G Page SC for the Respondent (20 August 2012) SOLICITORS: Ferguson Cannon Lawyers for the Applicant See Well Law for the Respondent ANN LYONS J: This Application [1] Donald Campbell died of cancer on 23 October 2011 at the age of 77. He left a Will dated 18 November 2010 which appointed the Applicants, who are two of his children from his first marriage and his solicitor, as executors of his estate. [2] The Respondent is the deceased‟s second wife and they married when he was 66 years of age. They were married for 11 years. [3] On 22 November 2011 the Applicants, as executors, published in the Courier Mail a Notice of Intention to apply for a Grant of Probate of the Will dated 18 November 2010. [4] On 1 December 2011 the Respondent, through her solicitors, lodged a caveat in relation to that proposed application for a Grant of Probate of the Will of 18 November 2010. [5] On 13 March 2012 the Applicants filed an application for the caveat to be set aside and listed the matter for hearing on 22 March 2012. -- 2 of 20 -- 3 [6] On 20 March 2012 the Respondent filed a Notice withdrawing the caveat. [7] On 22 March 2012 the Court pronounced for the full force and validity of the 18 November 2010 Will subject to the formal requirements of the registrar. At that hearing the solicitors for the Applicants sought an order that Donna Sewell, the solicitor for the Respondent, personally pay the Applicants‟ costs on an indemnity basis. The basis of that application was that the solicitor had acted in an unreasonable and irresponsible fashion in relation to the caveat and that the caveat had been lodged in ignorance or wilful disregard of the law. That application had been foreshadowed to Ms Sewell in a number of letters and full particulars outlining the basis of that application were provided to her in a letter dated 15 March 2012. [8] At the hearing of that application for indemnity costs the Respondent was represented by counsel instructed by Ms Sewell. The 2005 decision of the New South Wales Court of Appeal in Lemoto v Able Technical Pty Ltd1 was referred to in the course of the hearing. That decision makes it clear that a legal practitioner against whom an order for costs is sought personally must be accorded procedural fairness. In particular, the practitioner must be fully aware of the allegations and be given a full opportunity to be heard. [9] I was concerned during the course of argument on 22 March 2012 that Ms Sewell did not fully appreciate the seriousness of the allegations made against her personally. I was concerned, in particular, that Ms Sewell in her affidavits had not addressed in any substantial way the allegations of incompetence made against her. I was also concerned that she did not fully appreciate the significance of a finding that she had lodged and maintained the caveat due to her incompetence and lack of understanding of the law. [10] I outlined my concerns to Ms Sewell and asked her if she wished an adjournment to allow her to address in more detail the allegations of incompetence and to seek advice from a senior lawyer. The application for costs on an indemnity basis was therefore adjourned to allow Ms Sewell to seek advice and to provide further material. That adjournment was made on the basis that Ms Sewell was to personally pay the costs thrown away in relation to the appearance of the Applicants on 22 March 2012 on an indemnity basis. Background [11] It is necessary to explore in further detail the factual background surrounding the lodging of the caveat. [12] On 24 October 2011, the day following the deceased‟s death, the Respondent conferred with her solicitor Ms Sewell and gave her a letter from Ferguson Cannon Lawyers to the deceased dated 29 April 2011. That letter indicated that the solicitors had been trying to contact Mr Campbell to finalise documentation in relation to his Will, the severance of a joint tenancy in relation to property owned at Ward Street and binding death nominations in relation to his superannuation. In relation to his Will the letter provided as follows: “Your Will 1 [2005] NSWCA 153. -- 3 of 20 -- 4 Until you have properly executed your new Will (in the presence of two independent witnesses) reflecting your current wishes, your existing Will remains in place and it will be this document which would be followed in the event of your death. This will mean that, in the event of your death or loss of capacity before you execute a new Will, your wishes will not be carried into effect. Accordingly, I request that you urgently provide me with instructions in relation to your new Will. Please note that we cannot proceed until such time as you are able to provide complete instructions regarding your affairs and wishes, including details of your affairs and wishes. I will also need to obtain from you a certificate from your doctor confirming your capacity to enter into your new Will. Could you please provide to me the details of your doctor so that we can obtain the appropriate certificate. Once we receive final instructions from you, and the doctor‟s certificate, we can arrange an appointment for you to come in to sign your Will.”2 [13] Mrs Campbell also provided to Ms Sewell the deceased‟s diary which confirmed that Mr Campbell had appointments with a number of solicitors in the year before his death and advised that Mr Campbell may have patronised other firms in the area. In her affidavit the Respondent states: “21. Before Don passed away, I am aware that Don attended or consulted on the following law firms for advice and in relation to his Will:- a. Ferguson Cannon Lawyers; b. Montane Legal; c. Bruce Simpson and associates; and d. Raeburn, Christie, Clarke & Wallace (from Scotland). 22. Don may also have contacted Chris Reeve & Associates or Lynch & associates as these were firms located nearby in Tewantin.”3 [14] Accordingly, on 25 October 2011 Ms Sewell instructed Ryan Nattrass, a graduate solicitor in her firm, to telephone each of the firms that Mrs Campbell had mentioned. In her affidavit sworn 16 August 2012 Ms Sewell swears as follows in relation to those calls on 25 October 2011: “19. In relation to the other firms, Mr Natrass (sic) telephoned: a. Montane Legal and they said that they will call us back as they do have some files which includes a 2 Exhibit DMS2 to the Affidavit of D M Sewell sworn 20 March 2012. 3 Affidavit of E M Campbell sworn 16 August 2012. -- 4 of 20 -- 5 Will file and that if they have a Will they will forward it to our firm. This Will never arrived; b. Bruce Simpson and Associates who did not answer their phone; c. O'Hare & Co Solicitors who said they were unsure whether they had acted for Mr Campbell, but would get back to us; d. Lynch & Associates Solicitors whose principal Solicitor was not in yet, but a message was left that he would call us back; e. Chris Reeve & Co Solicitors who requested we post our client's authority before they will respond; f. Cartwright Lawyers who stated that they will not provide information over the phone and wanted confirmation that our client was an executor or beneficiary prior to releasing any information; and g. Donald Portbury & Co who checked their safe and said there were no documents belonging to Mr Campbell in their securities.”4 [15] On 25 October 2011 Ms Sewell sent a letter via email at 8.29 am to Ferguson Cannon Lawyers stating “We are instructed that your firm holds the final Will and testament of the late Mr Campbell”.5 That letter requested a copy of that Will and enclosed a signed authority to that end from Mrs Elaine Campbell. [16] On 25 October 2011 Ferguson Cannon responded at 9.22 am, stating “[a]s requested, please find attached a copy of last Will of Donald Campbell dated 18 November 2010.”6 There is no doubt the email indicated it was the last Will. [17] On 16 November 2011 the Respondent provided notices to the executors of the intention of Mrs Campbell to pursue a Family Provision Application seeking further provision out of the estate. [18] On 30 November 2011 the Respondent executed the caveat against the grant of probate in relation to the estate of deceased on behalf of the deceased‟s widow. The Notice in support of the caveat stated the following: “The interest I claim in the estate is: the interest of a beneficiary and an equitable interest in the Estate. I require the alleged will of Donald Campbell prepared by the applicant to be proved in solemn form of law. This is on the ground 4 Affidavit of D M Sewell sworn 16 August 2012. 5 Exhibit BJC1 to the Affidavit of B J Cannon sworn 21 March 2012. 6 Exhibit BJC2 to the Affidavit of B J Cannon sworn 21 March 2012. -- 5 of 20 -- 6 that I am the wife of the deceased and a beneficiary of the deceased‟s will. I require the application to be referred to a judge so that I can be heard on the application, but do not require the applicant to commence a claim.”7 [19] On 19 December 2011 the solicitors for the executors wrote to Ms Sewell querying why the grant was required to be proved in solemn form and noting that the lodgement of the caveat was misconceived if its purpose was to support a proposed application for family provision. The letter of 19 December continued: “We are now in a position where we can lodge an application for a Grant of Probate, and propose to file the application before Christmas so that the application can be heard early in the New Year. We are instructed to demand that your client withdraw the caveat by no later than 5.00 pm 21 December 2011, and provide evidence to us that this has been attended to. If we have not received this confirmation from you we have instructions to file an application for a Grant of Probate. If the matter is heard before a Judge and our position the lodgement of the caveat by your client was without basis and misconceived, we will rely upon this correspondence to seek indemnity costs against your client, and also against your firm. We welcome any meaningful submissions that you may have in relation to this point.”8 [20] On 20 December 2011 Ms Sewell wrote to the solicitors for the executors stating that “…our client requires evidence that Mr Campbell had capacity at that time” and indicated that her client would only withdraw the caveat: “…if an undertaking is provided that the estate will not be distributed or otherwise dissipated pending the outcome of our client‟s Family Provision Application and your client can supply medical evidence about capacity at the time of making the last three (3) wills.”9 [21] On 3 February 2012 an email was sent by the solicitors for the executors to Ms Sewell referring to s 44(3) of the Succession Act 1981 (Qld). In particular, the letter set out the following: “We refer to your email of 20 December 2011. In relation to your client's request for our clients to provide an undertaking that the estate will not be distributed or otherwise dissipated, pending the outcome of your client's Family Provision Application, we refer you to Section 44(3) of the Succession Act 1981, which provides your client with a cause of action against our clients personally, in the event they distribute any part of the estate, given our clients have received notice from your client of your 7 Exhibit DMS6 to the affidavit of D M Sewell sworn 20 March 2012. 8 Exhibit CAM10 to the Affidavit of C A Meakins sworn 13 March 2012. 9 Exhibit CAM11 to the Affidavit of C A Meakins sworn 13 March 2012. -- 6 of 20 -- 7 clients intention to make an application under s 41(1). The caveat filed by your client is not necessary in order to protect your client's rights in this regard, as your client is provided with protection under the Succession Act. In relation to your request for our client to supply medical evidence as to the deceased's capacity at the time of making his last three Wills, we advise that Mr Byron Cannon took instructions and prepared Mr Campbell's last three Wills, and was satisfied at all times in relation to the deceased's testamentary capacity. Mr Cannon has detailed capacity assessments confirming his assessment of the deceased's testamentary capacity, both at the time of taking instructions, and when executing the Wills. We refer you to the judgment of Isaac J in Bailey v Bailey and advise as follows: 1. Our clients duty in proving the Will of the deceased dated 18 November 2010 to be the deceased's last Will, is in the first place discharged by the establishment of a prima facie case; 2. Mr Byron Cannon took instructions from the deceased and was a witness to the deceased's last three Wills, and Mr Cannon was satisfied that, having regard to Banks v Goodfellow, that the deceased had testamentary capacity to make his last three Wills; 3. As our clients have established a prima facie case of capacity, the onus of disproving capacity and proving that the Will ought not to be admitted to probate lies with your client. In this regard our clients are not required to provide your client with medical evidence as to the deceased's capacity to make his last three Wills. If you object to the last Will of the deceased dated 18 November 2010 being admitted to probate, it is your client who has the evidential onus to prove that the deceased did not have the capacity to make his Will. We do however reiterate our advice above that Mr Byron Cannon will provide evidence that the deceased had testamentary capacity to make his last Will, and the previous two Wills. In any case, we fail to understand the purpose of your caveat given that in the event your client is successful in proving the deceased did not have capacity, then your client stands to receive less under the previous Wills; We are instructed to request that you immediately remove the caveat, or we hold instructions to make an application to have the caveat removed. There is no reason for our clients to incur the costs of -- 7 of 20 -- 8 making an Application for a Grant of Probate in solemn form. If we do not receive confirmation from you by 5pm on Wednesday 8 February 2012 that your client will withdraw the caveat, we will be seeking costs from your client and your firm on an indemnity basis. In relation to your correspondence of 6 January 2012 requesting details of the estates assets and liabilities, as previously advised, we are currently in the process of gathering this information and will forward these details to you once finalised. This process has been delayed as a result of being denied information from Wilson HTM, and the inability to finalise our Application for a Grant of Probate due to the caveat filed by your client.”10 [22] Significantly, on 8 February 2012 Ms Sewell wrote to Ferguson Cannon stating “...We only have in our possession the last will. Please provide us with copies of the previous two wills in your possession.”11 [23] On 14 February 2012 Ferguson Cannon provided copies of previous Wills the deceased had made with the firm in April 2010 and August 2009. The letter also indicated that serious illness was in itself insufficient to displace the presumption of capacity and sought particulars of the alleged incapacity.12 On 21 February 2012 Ms Sewell was again asked to provide full particulars of the testamentary incapacity which was alleged.13 Confirmation was also sought as to whether it was alleged that the deceased also lacked capacity in July 2011 when he had transferred property to the Respondent. [24] On 5 March 2012 an email from Ms Sewell advised “...our client will be in a position to file the Family Provision Application within the next fourteen (14) days. Our client‟s allegations and claims will be particularized in the Application.”14 On the same day, Ferguson Cannon emailed Ms Sewell stating that if the Family Provision Application did not particularise the allegations in relation to incapacity then the caveat must be immediately removed to avoid the costs of making an application for a grant of probate in solemn form.15 [25] On 7 March 2012 Ms Sewell emailed Ferguson Cannon once again stating that testamentary capacity was an issue and that “this evidence will be provided in the family provision application.”16 [26] On 15 March 2012 Dr Corbett wrote to Ms Sewell in the following terms: “I was the GP for Mr Donald Campbell between September 2006 until his death in October 2011. He died of metastatic gastric cancer. This is not a genetic condition. During my care of him I do not feel that at any point he suffered from diminished mental capacity, such 10 Exhibit CAM12 to the Affidavit of C A Meakins sworn 13 March 2012 (emphasis added). 11 Exhibit CAM13 to the Affidavit of C A Meakins sworn 13 March 2012. 12 Exhibit CAM14 to the Affidavit of C A Meakins sworn 13 March 2012. 13 Exhibit CAM16 to the Affidavit of C A Meakins sworn 13 March 2012. 14 Exhibit CAM17 to the Affidavit of C A Meakins sworn 13 March 2012. 15 Exhibit CAM18 to the Affidavit of C A Meakins sworn 13 March 2012. 16 Exhibit CAM19 to the Affidavit of C A Meakins sworn 13 March 2012. -- 8 of 20 -- 9 that he was unable to exercise the task of writing a will. This includes the last few days of his life.”17 [27] On 15 March 2012 a letter from Ms Sewell to Ferguson Cannon stated: “…until the application was served, our client‟s instructions were that there was evidence of a Will held by your office dated sometime after April 2011. Our client’s caveat was filed on the basis that a later Will after the Will dated 18 November 2010 existed… We agree that a caveatale (sic) interest does not include a right to commence a family provision application and we did not keep the caveat in place on those grounds… The caveat remained as our firm has made continued inquiries with other legal firms that represented the deceased in relation to his affairs to obtain the file and any possible later Will.”18 [28] Ms Sewell maintains that the reason the caveat was lodged was (a) because there was a Will after 18 November 2010; and (b) Mr Campbell lacked capacity to execute a Will. [29] It is clear, however, that those reasons were not set out in the Notice in support of the caveat filed on 1 December 2011. The letter of 20 December 2011 is the first reference to alleged incapacity and there was no mention of a later Will until 15 March 2012. Plain misunderstanding of basic estate law [30] The actions by the solicitor as set out above are very concerning for a number of reasons. The lodgement of the caveat prevented the Applicants, as executors, from being able to identify the assets and liabilities of the estate. Mr Campbell left a large estate which needed to be managed expeditiously. The possible Family Provision Application [31] The Notice in support of the caveat referred to the Respondent‟s interest as a beneficiary and to an equitable interest but made no reference to a later Will or incapacity. All of the correspondence from Ms Sewell also initially indicated that a Family Provision Application was to be brought and that the caveat was being maintained to support that claim. The filing of a caveat for that purpose is clearly misconceived. [32] A proposed Family Provision Application is clearly no basis to lodge a caveat. It is simply illogical to claim that one has not been sufficiently provided for under the last Will of the deceased and then to dispute the validity of the Will one is relying on to bring the Family Provision Claim. As outlined in Williams, Sunnucks and Mortimer in Executors, Administrators and Probate,19 the significance of a caveat is 17 Exhibit DMS13 to the Affidavit of D M Sewell sworn 16 August 2012. 18 Exhibit CAM3 to the Affidavit of C A Meakins sworn 21 March 2012 (emphasis added). 19 Williams EV, Sunnucks JHG and Mortimer HC. Executors, administrators and probate, 16th ed. (Launceston: Stevens, 1982) -- 9 of 20 -- 10 that once a caveat is lodged no grant can be sealed in the registry. A caveat should not be used where the claim is for family provision because, in that case, the real object is not to prevent a grant being issued but, rather, to give notice of a proposed claim. Further, there are other steps which are more appropriate to give notice of that claim. The appropriate procedure in relation to family provision applications in relation to proceedings in the Supreme Court is clearly set out in Supreme Court Practice Direction Number 8 of 2001. The Possibility of a later Will [33] A further basis for the caveat was said to be that there was to be an attack on the Will of 18 November 2010 on the basis that there was a later Will. At the time the caveat was lodged on 1 December 2011 there had been no indication at all from any of the local law firms that they were holding a later Will. [34] Ms Sewell may have been concerned that Mr Campbell had indeed executed the Will referred to in the April 2011 letter from Ferguson Cannon, however it must also have readily become apparent to Ms Sewell that the last executed Will that Ferguson Cannon had was, in fact, the Will of 18 November 2010, because that was the Will they were given on 25 October 2011 and they were specifically told it was the last Will. Furthermore that was the Will for which probate was sought and for which the Notices were published on 22 November 2011. [35] The letter from Ferguson Cannon to Mr Campbell of 29 April 2011, which Mrs Campbell had a copy of, clearly indicated that the further Will which had been prepared had not been signed and that unless he signed it his early Will would be the relevant Will. Accordingly, by 22 November 2011 Ms Sewell knew that there was simply no evidence of an executed later Will. [36] Furthermore, Ms Sewell did not raise the possibility of a later Will with Ferguson Cannon until 15 March 2012 when a very serious allegation was made “that there was evidence of a Will held by your office dated sometime after April 2011.”20 The allegation is very concerning because it alleges that Ferguson Cannon held a later Will which they were concealing. Lack of Capacity [37] It is also submitted that a further reason for the caveat was that Mr Campbell lacked capacity when he made his last Will. [38] It was clear that the Will for which probate was sought was the Will executed almost 12 months before his death. When the caveat was lodged the deceased‟s wife may have had concerns that he had executed a later Will and not had capacity for the later Will. At that point in time, however, there was no actual evidence of a later Will. [39] Furthermore there was simply no evidence that Mr Campbell lacked capacity when he executed any of his last three Wills in August 2009, April 2010 and November 2010. True it was that he was suffering from cancer in the period during which those Wills were made but the evidence is that he was regularly attending to his affairs in that period. He made frequent trips to various solicitors to organise his 20 Above n 18. -- 10 of 20 -- 11 affairs, knowing he was dying, but there is not the slightest hint in any of the material that his mental functioning was affected in any way. As was pointed out to Ms Sewell, serious physical illness is no indication of a lack of mental capacity. Significantly, there was no medical evidence whatsoever which Ms Sewell was aware of in support of a claim of lack of capacity. [40] Furthermore, Mrs Campbell‟s affidavit sworn 20 March 2012 stated that she was concerned that the last Will in April 2011 provided her with less than the last Will of November 2010 but that she was now confident that the application for probate is in respect of the November 2010 Will and, accordingly, is content for the caveat to be removed.21 That paragraph also clearly raises concerns about Ms Sewell‟s knowledge and appreciation of probate law and the advice she provided to Mrs Campbell. It is not a case of picking and choosing which Will is the „best option‟. [41] Significantly, when the solicitors for the Applicants endeavoured to set out the relevant principles and the evidence required to support a caveat Ms Sewell either did not understand the information which was provided to her or chose to ignore it. [42] In my view there was no evidence to support the caveat when it was lodged on 1 December 2011. [43] Dr De Groot in Wills, Probate and Administration Practice22 states: “A caveator must act responsibly in lodging a caveat and is expected to make timely enquiries to support or otherwise their initial suspicion about the validity of the will in question. If the caveator does not act reasonably, he or she may be liable for the costs of the application to have it removed.” [44] I do not consider that there is any basis for an order that the costs should be paid by the estate. I would support the approach of Connolly J in Re Fogarty; Kovacs v Fogarty (No 2),23 which was referred to and followed by Applegarth J in Frizzo & Anor v Frizzo & Ors (No 2) (“Frizzo”),24 that one should not start with a general proposition that the costs in probate litigation should be borne by the estate. Justice Applegarth held: “[39] It would be wrong to start with the proposition that all parties‟ costs should be paid out of the estate, or that they should be paid out of the estate unless it is demonstrated that an unsuccessful party‟s conduct was shown to be unreasonable. The general rule remains that costs should follow the event. However, the exercise of discretion in relation to costs should recognise the importance of scrutinising doubtful wills before they are admitted to probate, and not condemning, by way of an order for costs, an unsuccessful party who has acted reasonably in opposing the admission of a will to probate.” 21 Affidavit of E M Campbell sworn 20 March 2012 at 11-13. 22 De Groot, JK. Wills, probate and administration practice (Brisbane: Queensland Law Society Incorporated, 1985), at 426. 23 [2007] ACTSC 40. 24 [2011] QSC 177. -- 11 of 20 -- 12 [45] It is my very clear view that the Respondent should pay the Applicants‟ costs in relation to the application to remove the caveat. Significantly, the caveat was maintained despite clear indications that there was no basis for it. The refusal to withdraw the caveat obviously necessitated the application to have it removed. It was not ultimately removed until two days before the scheduled hearing date, which meant that significant costs had been incurred in briefing counsel and preparing for the hearing. [46] There are a number of cases involving caveats were cost orders have been made against parties who have unreasonably filed or maintained the caveat. In the 2001 decision of Windsor v Buxton,25 Chesterman J (as he then was) held as follows: “[11] Mr Windsor‟s affidavit indicates to my satisfaction that the respondent has acted quite irresponsibly in relation to the administration of the testator‟s estate. While some initial suspicion about the validity of the last will was justified a conference with Ms Hayward would immediately have laid the suspicion to rest. Not to have approached her and obtained her account of the manner in which the testator gave instructions for his will was unjustifiable. There is no basis for thinking that had the respondent or his solicitor asked to confer with Ms Hayward that they would not have been accommodated. The applicant at an early stage sent the respondent a copy of the testator‟s written instructions for the will. The respondent was a joint executor with Ms Hayward‟s employer. [12] For two years the administration of the estate has been delayed while the respondent enjoyed exclusive possession of the testator‟s only substantial asset. She refused requests from her co-executor to provide information and books of account relevant to the estate‟s assets. The respondent refused her consent to the investment of some moneys recovered by the estate pending the grant of probate. As a result the moneys have been held in a trust account without earning interest. As earlier noted she refused to join in making an application for probate though her solicitors erroneously asserted she had done so. [13] The circumstances make it just to order the respondent to pay the applicant‟s costs of and incidental to the application, to be assessed on the standard basis. It would be quite unfair to require the estate, two-thirds of which is to pass to the testator‟s children, to bear that expense. The continuation of the caveat was quite unnecessary. The respondent and her solicitors should have expeditiously ascertained whether there was any basis for alleging lack of capacity or undue influence. The inquiry would have shown there was no such basis. Her refusal to cooperate with her coexecutor and to provide information to allow the estate to be administered to 25 [2001] QSC 81. -- 12 of 20 -- 13 the advantage of all beneficiaries while selfishly enjoying the benefit of it suggest a degree of cynicism in her actions. The grounds for her caveat had no substance but she persisted with it to the financial detriment of the estate. I will make an order in terms of the draft submitted by counsel for the applicant as amended and initialled by me.” [47] The real issues are whether those costs should be paid on a standard or an indemnity basis and whether the solicitor Ms Sewell should pay some of those costs personally. [48] In determining this issue, I endorse the approach of Applegarth J in Frizzo where his Honour considered that one should approach the question of costs in estate litigation by reference to its various phases: “[40] I accept that the application of relevant principles makes it appropriate to consider the litigation by reference to its various phases, and that it is appropriate that the costs of all of the parties be assessed on an indemnity basis and paid out of the estate at least during the early phases. In that regard I accept the submissions of the second, third and fourth defendants concerning the reasons for this. The substantial issue then becomes whether the unsuccessful plaintiffs should pay some or all of the defendants‟ costs of the latter phase of the proceeding and, if so, on what basis; or whether the defendants should have some or all of their costs paid out of the estate and, if so, on what basis. A related issue is the date by reference to which the putative “latter phase” is found to commence. In that regard, there is much to be said for the proposition that the circumstances under which the 2006 Will came to be signed had been the subject of vigilant scrutiny by the time the oral examination of relevant witnesses occurred and the hospital records were available. However, I consider a more appropriate date is 30 March 2010. By this time Dr Byrne‟s report of 17 March 2010 was available to the parties, and they had been able to assess its implications. Mr Taylor‟s letter of 30 March 2010 is illuminating in that regard. It involves an implicit recognition that further opposition to the admission of the 2006 Will to probate exposed the executors to an adverse costs order, and that the decision to continue to contest the 2006 Will was a decision of Shane Frizzo undertaken in the pursuit of his personal interests. Despite this recognition, and a foreshadowed application by Mr Taylor to be removed as a plaintiff and for Shane Frizzo in his personal capacity to be instituted as a plaintiff, no such application was made.” [49] In order to determine whether the costs should be on an indemnity or a standard basis, it is necessary to analyse the reasonableness of conduct of the parties in relation to the lodging of the caveat and the subsequent proceedings to remove it. -- 13 of 20 -- 14 [50] Ms Sewell may well have had instructions to pursue a family provision application based on the provision made for Mrs Campbell by the deceased in his November 2010 Will. The caveat was clearly lodged on a mistaken view that a potential family provision claim was sufficient to support a caveat. Concerningly, Ms Sewell kept the caveat in place when she became aware by 20 December 2011 that such a claim was in fact insufficient and indeed inappropriate to support a caveat. [51] If Ms Sewell lodged the caveat because she believed there was a later Will held by solicitors other than Ferguson Cannon, the Respondent and Ms Sewell must have known by 22 November 2011 that no other solicitors in the area had advised of a later Will. If Ms Sewell and the Respondent believed that Ferguson Cannon were holding a later Will which they were concealing then that serious allegation was not disclosed to Ferguson and Cannon until 15 March 2012. [52] If Ms Sewell lodged the caveat on the basis that Mr Campbell lacked capacity she had no actual evidence of incapacity in relation to the November 2010 Will when she lodged the caveat. Rather, her client‟s real concerns were that there might be a later Will which she did not know about and for which he might not have had capacity. [53] The caveat was then kept in place for at least three and a half months when it was clear that there was no evidence of incapacity in relation to a Will for which probate was sought which was executed almost 12 months before the deceased‟s death. Furthermore, it was known by 3 February 2012 that Ferguson and Cannon specifically rejected any claims of incapacity. The caveat was also maintained when the solicitors for the Applicants correctly pointed out that the onus in relation to capacity in relation to a Will, which was regular on its face, lay with her client. [54] I consider that it is reasonable for the Respondent to pay the Applicant‟s cost in relation to the caveat and the removal of the caveat on a standard basis up to 20 December 2011 and thereafter on an indemnity basis. [55] The next question is whether a point was subsequently reached where Ms Sewell should pay the costs personally on an indemnity basis. My concern is that not only was the caveat lodged in inappropriate circumstances but it was maintained despite clear evidence that it should be withdrawn. [56] The principles in relation to costs orders against legal practitioners personally were summarised in Lemoto v Able Technical Pty Ltd,26 where McColl JA outlined the relevant principles: “ [92] ...the following principles which can be gleaned from the English and Australian authorities which have considered the power to order legal practitioners to pay the costs of proceedings in which they have represented parties: (a) The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised “with care and discretion and only in clear cases”: 26 Above n 1, per McColl JA (with Hodgson and Ipp JJA agreeing). -- 14 of 20 -- 15 Ridehalgh (at 229), Re Bendeich (1994) 53 FCR 422; Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383 per Hill J at [11]; Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 at [44]; Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 at [8] per White J (with whom Davies and Williams JJA agreed); De Sousa v Minister for Immigration (1993) 41 FCR 544; Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; (b) A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail: Ridehalgh (at 233); Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 at [56] per Lord Hobhouse; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 (affirmed on appeal, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134); Levick v Deputy Commissioner of Taxation; cf Steindl Nominees P/L v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683; (c) the legal practitioner is not “the judge of the credibility of the witnesses or the validity of the argument”: Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297; the legal practitioner is not “the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him”: Myers v Elman (at 304, per Lord Atkin); Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; (2001) 47 ATR 1 at [34] per Callinan J; (d) A judge considering making a wasted costs order arising out of an advocate‟s conduct of court proceedings must make full allowance for the exigencies of acting in that environment; only when, with all allowances made, a legal practitioner‟s conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order: Ridehalgh (at 236, 237); (e) A legal practitioner against whom a claim for a costs order is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it: Myers v Elman (at 318); Orchard v -- 15 of 20 -- 16 South Eastern Electricity Board (at 572); Ridehalgh (at 229); (f) Where a legal practitioner‟s ability to rebut the complaint is hampered by the duty of confidentiality to the client he or she should be given the benefit of the doubt: Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229); in such circumstances “[t]he court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so”: Medcalf (at [23] per Lord Bingham); (g) The procedure to be followed in determining applications for wasted costs must be fair and “as simple and summary as fairness permits…[h]earings should be measured in hours, and not in days or weeks… Judges … must be astute to control what threatens to become a new and costly form of satellite litigation”: Ridehalgh (at 238 – 239); Harley v McDonald [2001] UKPC 18; [2001] 2 AC 678 at 703 [50]; Medcalf (at [24]). [93] The authorities concerning the sparing exercise of the jurisdiction to make wasted costs orders against legal practitioners (sub-paragraph (a)) are consistent with cases in which orders are sought that a lay non-party pay the costs of litigation; such an order is exceptional: Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 at 980 per Lord Goff; Taylor v Pace Developments Ltd [1991] BCC 406 at 410; Symphony Group Plc v Hodgson [1994] QB 179 at 192-3 per Balcombe LJ; Flinn v Flinn [1999] VSCA 134 at [24]. ... [97] An integral aspect of the legal practitioner‟s duty to the court is to ensure the business of the courts is conducted with the expediency consistent with the due administration of justice. The role of the legal profession in this respect, with particular focus on the role of counsel, was referred to by Mason CJ in Giannarelli & Shulkes v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 556. His Honour said: “…The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister‟s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client‟s success, but also to the speedy and efficient administration of justice. … -- 16 of 20 -- 17 [98] While this passage is expressed in terms of the barrister‟s duty to the court, there is no doubt that the solicitor‟s duty to the court is co-extensive with counsel‟s… [108] In Steindl Nominees P/L v Laghaifar (at [24]0 Davies JA (with whom Williams JA and Philippides J agreed) accepted Goldberg J‟s conclusion that the jurisdiction to order costs against an unsuccessful party‟s solicitors was enlivened when they had unreasonably initiated or continued an action which had no or substantially no prospects of success. He also accepted the reasoning of Goldberg J generally and that of the Full Court of the Federal Court in Levick v Deputy Commissioner of Taxation subject to the qualification that he rejected “statements [in them which] state or imply that it is not improper for a legal representative to present a case which he or she knows to be bound to fail.” He said (at [24]): „I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.‟” [57] I consider that Ms Sewell and had full notice of the allegations against her. She has taken the opportunity to obtain advice from a more senior lawyer and has had Senior Counsel appear on her behalf at the resumed hearing. She has filed extensive affidavit material in an effort to explain her actions. [58] I am concerned, however, that when asked to explain her actions in the current proceedings, Ms Sewell has not been rigorously accurate in her affidavit and has inappropriately endeavoured to cast blame on others. I agree with the submission from Counsel for the Applicants that many of the allegations made by Ms Sewell in her affidavit are indeed scandalous and not supported by the evidence. Scandalous allegations not supported by any evidence Ms Sewell’s affidavit sworn 16 August 2012 [59] Paragraph 22 of Ms Sewell‟s affidavit sworn 16 August 2012 asserts that: “In all of Ferguson Cannon Lawyers, later correspondence, which we have to hand there was no mention of an April 2011 Will or instructions being provided up to 2010, nor did Ms Meakins or anyone else at Ferguson Cannon Lawyers respond to my reasonable requests in relation to a later Will…” -- 17 of 20 -- 18 [60] Clearly, there was no mention of any Will of April 2011 because Ferguson Cannon Lawyers did not hold an executed later Will. That had to be known to Ms Sewell as Ferguson Cannon were seeking Probate of the 18 November 2010 Will. Furthermore, the letter of 29 April 2011 from Ferguson Cannon to Mrs Campbell, of which Ms Sewell had a copy, clearly indicated he had not signed the later Will he had Ferguson Cannon prepare. In addition, there is simply no evidence Ms Sewell made “reasonable requests in relation to a later Will”. The first time that a later Will is mentioned in the extensive correspondence is 15 March 2012, after the application had been filed and one week prior to hearing on 22 March 2012. [61] Paragraph 24 asserts that: “…I wrote several more times to Ferguson Cannon Lawyers and the various other solicitors and asked them for Mr Campbell‟s Last Will.” The letter of 25 October 2011 was the first and only request made by Ms Sewell to Ferguson Cannon Lawyers in this regard. It was responded to within the hour. [62] Paragraph 39(o) states that: “Ferguson Cannon were unwilling or unable to confirm which Will was actually Mr Campbell‟s Last Will, despite reasonable requests to do so.” [63] In this regard I note that there was never more than one request which was made on 25 October 2011. That request was positively responded to and she was actually given a copy of the last Will. [64] Paragraph 51 states that: “Ferguson Cannon Lawyers were made aware, on several occasions, that the client suspected that Mr Campbell had made a later Will, yet failed to address or resolve this issue to Mrs Campbell‟s satisfaction…” I have been provided with all the correspondence and there is simply no evidence before me that Ferguson Cannon were made aware of this until the letter of 15 March 2012 when the serious allegation was made that the firm had in its possession a later Will and were not disclosing it. [65] Paragraph 54 then states that: “…Mrs Campbell instructed that she believed that Mr Campbell made another Will with a different firm of solicitors…” This is in contrast to Ms Sewell‟s letter of 15 March 2012 to Ferguson Cannon Lawyers which actively asserted that “our client‟s instructions were that there was evidence of a Will held by your office dated sometime after April 2011”.27 [66] Paragraph 55 states that: 27 Above n 18. -- 18 of 20 -- 19 “I further confirm that I have written to Ferguson Cannon Lawyers on multiple occasions to request confirmation of Mr Campbell‟s Last Will and capacity at the time of making this Last will; however these requests have not been adequately answered or to Mrs Campbell‟s satisfaction.” Once again, the allegation is repeated with no evidence in the correspondence to support it. [67] Paragraph 55 further states that: “Until receiving the Application for Probate, Mrs Campbell instructed that she verily believed that the Applicant‟s (sic) intended on probating a Will made in 2011 perhaps made with Montane Legal or some other Firm.” It was clear that the Will in respect of which the grant was being sought was that of 18 November 2010 and that Ms Sewell knew this by 22 November 2011. [68] Paragraph 58 states that: “Also, Ferguson Cannon Lawyers have not disclosed later appointments and have led the court to believe that Mr Campbell did not see Ferguson Cannon Lawyers after that April 2011 was (sic) letter was issued…” Mr Cannon, as Mr Campbell‟s solicitor and one of the executors, has sought to propound Mr Campbell‟s last Will of 18 November 2010. Whether Mr Campbell saw Mr Cannon again in respect of the preparation of another Will is entirely immaterial to the application for the grant. There is no basis for the suggestion that by failing to avert to this Mr Cannon has somehow misled the court. [69] Paragraph 60 states: “Had Dr Corbett and multiple third parties, for example, oncologists, accountants and financial planners, not received instructions from David Campbell and Ferguson Cannon Lawyers not to speak or have any contact with me or my firm it would have prevented both parties costs and expenses.” A serious allegation is made in respect of Ferguson Cannon Lawyers. I do not consider there is any evidence before me to support it other than unsubstantiated allegations by Mrs Campbell. Mrs Campbell’s affidavit sworn 20 March 2012 [70] Paragraph 4 of Mrs Campbell‟s affidavit sworn 20 March 2012 states: “I have evidence that I have found in the deceased‟s paperwork that shows that Ferguson Cannon Lawyers believed that the deceased may not have had capacity at the date of his death, or at the date of making his last will and testament.” -- 19 of 20 -- 20 There is no basis for such a claim. The letter of 24 April 2011 to Mr Campbell referred to a possible future loss of capacity and asked for a letter “confirming” his current capacity from his doctor. Such a course is now standard practice in most firms and is not evidence of lack of capacity. [71] It is clear that an order in the terms sought by the Applicants is an unusual order and such an order must be made “with care and discretion and only in clear cases”.28 It is also clear that a judge considering making such an order must make full allowance for the exigencies of acting in that environment. If it is considered that the legal practitioner‟s conduct of Court proceedings is quite plainly unjustifiable even after all the relevant allowances have been made, then such an order can be made. [72] I accept that the period immediately after a death is a period of heightened emotions particularly where there are difficult family relationships. Solicitors are often presented with facts that are incomplete and important decisions may need to be made quickly. However, solicitors need to bring independent discretion and judgment to bear in relation to the cases they are involved in and need to be aware of their overall duty to the Court and the speedy and efficient administration of justice. Solicitors should be careful not to inflame already fragile relationships. [73] In my view, the caveat was maintained inappropriately. In my view, a point was clearly reached after 3 February 2012 where Ms Sewell must have known that the caveat was not able to be supported on the facts known to her at that time. That should have been communicated expeditiously to her client. [74] On 21 February a specific request was made to Ms Sewell by Ferguson Cannon to withdraw the caveat so that a Grant of Probate could be made. Accordingly I consider that by 21 February 2012 it was patently clear that there was no basis to support the caveat and it should have been withdrawn. I consider that Ms Sewell‟s conduct was inappropriate and unreasonable after that date. Accordingly Ms Sewell should pay the Applicants‟ costs on an indemnity basis from 21 February 2012. ORDERS: 1. The Respondent is to pay the Applicants’ costs of and incidental to the filing of the caveat and the application to remove the caveat to be assessed on the standard basis up to 20 December 2011; 2. The Respondent is to pay the Applicants’ costs of and incidental to the filing of the caveat and the application to remove the caveat to be assessed on an indemnity basis from 20 December 2011 to 21 February 2012; and 3. Donna Maree Sewell is to pay the Applicant’s costs of and incidental to the filing of the caveat and the application to remove the caveat to be assessed on an indemnity basis from 21 February 2012. 28 See Lemoto v Able Technical Pty Ltd, above n 27. -- 20 of 20 --