Carroll v Goff

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0002

JANE KATHLEEN CARROLL	Applicant
v
ROBERT TERENCE GOFF	Respondent

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JUDGES:	MAXWELL P, KENNEDY and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2021
DATE OF JUDGMENT:	21 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 267
JUDGMENT APPEALED FROM:	Carroll v Goff (Supreme Court of Victoria, S PRB 2020 09770, 27 November 2020, McMillan J)

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WILLS AND ESTATES – Probate – Executors – Application for probate – Deceased’s two children named as executors – Codicil appointed New South Wales Trustee & Guardian as executor should there be disharmony or disagreement between named executors – One named executor applied for probate – Long history of disputation between siblings – Codicil applicable – Probate application refused – Decision plainly correct – Appeal dismissed.

PRACTICE AND PROCEDURE – Natural justice – Right to fair hearing – Application determined on the papers – Applicant self-represented – Whether denial of procedural fairness – Parties filed submissions and affidavits – Narrow issue – Competing positions clearly articulated – Consideration of public interest and private interest – No practical injustice – Doughty-Cowell v Kyriazis [2018] VSCA 216, Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215, applied; Coffey v O’Halloran [2021] VSCA 29, discussed – Civil Procedure Act2010 ss 7–9, 47, 49.

PRACTICE AND PROCEDURE – Costs – Indemnity costs – Whether judge erred in discretion on costs – Proceeding had no proper basis – Respondent warned applicant that application would fail and indemnity costs would be sought – No error – Civil Procedure Act 2010 s 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms R Grayson Morison	Smallwoods Lawyers

MAXWELL P
KENNEDY JA
WALKER JA:

Summary

This is an application for leave to appeal against orders dismissing an application for a grant of probate, and awarding costs against the present applicant (who had sought the grant of probate) on an indemnity basis. The matter was decided on the papers, with no oral hearing.

Unhappily, the application for probate was made against a background of longstanding distrust and animosity between the applicant and her brother, who is the respondent to this application. They are the only children of the deceased, Kathleen Goff, and she had appointed them as her executors.

Apparently aware of the strained relationship between them, however, Mrs Goff executed a codicil which altered the executor provisions of the will. Relevantly for present purposes, the codicil made clear that Mrs Goff did not want her children to be executors ‘either solely or jointly if there is any disharmony or disagreement between them in relation to the administration of my Estate or otherwise’. In those circumstances, the codicil stated, the Public Trustee of New South Wales would be appointed executor.

As noted earlier, there has for some time existed an entrenched state of ‘disharmony and disagreement’ between the siblings. So much was clear from the documents filed in the probate proceeding. This meant, as the respondent correctly pointed out in pre-trial correspondence and submissions, that the application for probate was bound to fail. The respondent foreshadowed that he would seek indemnity costs if the applicant persisted and failed.

The applicant decided to proceed with the probate application nonetheless. We accept that — as the applicant made clear in her submissions in this Court — her decision to do so was made with the best of intentions, and in what she perceived to be the best interests of the beneficiaries under the will. She stood to gain nothing personally. Unfortunately, however, the application was misconceived and — as explained more fully below — both the substantive order and the order for costs are therefore unimpeachable.

Separate complaint is made about the fact that the judge determined the probate application on the papers, and did so seemingly relying only on the respondent’s submissions. The applicant contends that she was thereby denied procedural fairness. Although she had earlier had legal advice and assistance with the probate application, she was self-represented in the period leading up to the consideration of the application.

That contention must also be rejected. As the Court has explained in recent decisions concerning self-represented litigants, what is required for a fair hearing — that is, a reasonable opportunity to present the case and to meet the opposing case — depends on a range of considerations, in which both the litigants’ interests and the public interest play a part. As will appear, it was of particular relevance here that the question for decision was very narrow, there were no (material) disputes of fact, the respective arguments were extensively and capably canvassed in written submissions and affidavits, and the judge was obliged by the Civil Procedure Act 2010 (‘the CPA’) to dispose of the proceeding in an efficient and cost-effective manner.

The application for leave to appeal

The applicant relies on four proposed grounds of appeal:

1. The Honourable Justice McMillan [Her Honour] in her 27 November 2020 orders and directions, dismissing the Probate Application in Victoria and awarding indemnity costs, breaches s 24 of the Charter of Human Rights and Responsibilities Act 2006 Vic by relying almost exclusively on the submissions of the Defendant and not permitting the applicant’s right to a fair hearing.
2. Her honour mistook the facts within the meaning of House v The King (1936) 55 CLR 499 by failing to identify the interest in real estate held by the Deceased was in the capacity as a trustee and the real estate had no monetary value to the estate.
3. Her Honour, mistook the facts within the meaning of House v The King (1936) 55 CLR 499 in finding that the codicil disentitled the Applicant to bring the application for a grant of probate in circumstances where the Defendant and NSW TG alternate Executor were questioning its validity as a testamentary instrument and required validation to be able to use its provisions. That it was open to the Court in the interests of justice having regard to the facts to allow the Codicil to be validated during probate and allow for appointment the alternate NSW TG Executor in place of the existing executors in accordance with the Codicil provisions.
4. Her Honour was affected or guided by irrelevant matters — within the meaning of House v The King (1936) 55 CLR 499 in finding that indemnity costs should be paid by the Applicant on the basis of a breach of overarching obligations under the CivilProcedure Act 2010, when this was not the case, in fact the Defendant’s conduct on the evidence as a whole was such that the order against the Applicant was unfair and unjust such as to cause error.

For reasons which follow, we consider that leave to appeal should be granted in relation to proposed grounds 1 and 4, but otherwise refused, and that the appeal should be dismissed.[1]
[1]The application for leave was heard via audio-visual link with consent of the parties. The applicant was not represented by a legal practitioner and addressed the Court herself. We also permitted the applicant’s husband, Mr Gavin Carroll, who was formerly a solicitor, to assist the applicant by addressing the Court (see Hubbard Association of Scientologists v Anderson [1972] VR 340). The respondent did not object to this course.

Background[2]
[2]Given the nature of the complaints the subject of proposed grounds 1 and 4, a background of some length is necessary.
General

Kathleen Goff (‘the deceased’) died on 25 February 2020, leaving a will dated 18 July 2007 (‘the will’), and a codicil dated 23 December 2009 (‘the codicil’).

Clause 2.1 of the will appointed the two children of the deceased, Jane Carroll (‘the applicant’) and Robert Goff (‘the respondent’), as executors. Clause 3.1 devised to the respondent all of her interest in a property at Tura Breach of which she was registered proprietor as tenants in common with the applicant. Save for some other specific bequests, the residue of the estate was to be divided among the deceased’s five grandchildren.

The precise effect of cl 3.1 was the subject of much dispute in the light of a deed which had been entered into by the various family members (including the spouses of those family members) on 15 May 2005 (‘the Deed’).

The Deed purported to make provision in relation to a property comprising land and two dwellings at 12A Surf Circle Tura Beach in NSW (described as ‘unit 1’ and ‘unit 2’) (collectively, ‘the Tura Beach property’). Insofar as the will is concerned, the Deed recited that the deceased would leave ‘all her interest’ in the Tura Beach property by will to the respondent. The Deed further annexed a copy of a will whereby the deceased gave her ‘entire interests’ in the Tura Beach property to the respondent. By cl 11.1 the deceased promised not to alter the will in relation to the ‘disposition of her interest’ in that property.

The respondent alleges that the Tura Beach property forms part of the estate because it is the subject of a specific devise to him, and further that the deceased was the full owner of the property as at the time of her death (not just as a bare trustee).

However, the applicant alleges that the effect of the Deed was to provide the respondent with the beneficial interest in the property such that the deceased became a bare trustee only.[3] The Tura Beach property therefore did not form an asset of the estate. The applicant further made a number of complaints about the respondent’s conduct in relation to the Deed. This included that the respondent had overstated the value of the Tura Beach property (at $500,000) given the deceased had only held the legal interest. Further, she complained that the respondent has been seeking ways to procure a revised strata plan (the subject of Part 4 of the Deed) that increased his proprietary entitlement.
[3]For example, the applicant relied upon cl 3 of the Deed, which made the respondent liable for maintenance and outgoing expenses in relation to unit 1 and enabled him to receive rental income; cl 7, which gave the respondent rights and duties in relation to the sale of the units; and cl 8, which empowered the respondent to lodge a caveat recording his interest in the property.

This Court was not provided with detailed submissions and evidence so as to be able to resolve the different positions.[4] In any event, for reasons which appear below, it is unnecessary for this Court to resolve the disputes relating to the Deed. Suffice to say that the conflict which arose in relation to the Tura Beach property appears to have come to the attention of the deceased, and led to the execution of the codicil. Thus, there was evidence that, shortly prior to the execution of the codicil, the deceased spoke to a solicitor, Mr Harding, of her concerns relating to the ‘conflict between her children in respect to the Tura Beach property’. Mr Harding suggested that, to avoid more conflict, the deceased should appoint an independent executor such as the Public Trustee of NSW.
[4]For example, we were not addressed about the alleged ‘independent agreement’ between the applicant and the respondent (cited in cl 5.1 of the Deed) whereby unit 1 was ‘allocated’ to the respondent and unit 2 to the applicant.

In the result, the deceased executed the codicil dated 23 December 2009, which made the following provision for the appointment of an executor and trustee (in substitution for that previously provided by cl 2 of the will):

2. Appointment of Executor and Trustee
2.1.1 Subject to Clause 2.1.2 and Clause 2.1.3 hereof, provided they both survive me by 30 days, I appoint my son Robert Terrence Goff and my daughter Jane Kathleen Goff to be the Executors of this my Will and Trustees of my Estate.
2.1.2 Should either or both of my children have failed to so survive me by 30 days, be unable or unwilling to act or continue to act in either of those positions then in Lieu of appointing my aforesaid children as my Executors and Trustees, I now appoint as my Executor and Trustee the Public Trustee of New South Wales,[5] it being my intention that I do not wish either of my children to be my sole Executor or sole Trustee, nor do I wish either of my children to be my Executor or Trustee either solely or jointly if there is any disharmony or disagreement between them in relation to the administration of my Estate or otherwise.
2.1.3 A formal written renunciation of the role of Executor or written resignation as Trustee by either one of my aforesaid children shall be sufficient evidence to the Public Trustee of New South Wales of my appointment of the Public Trustee of New South Wales to the role of Executor and/or Trustee of this my Will
2.2My Trustee will be the Trustee of each Trust under this Will unless or until another Trustee is appointed pursuant to this Will and is hereinafter referred to as ‘my Trustee’.
[5]The Public Trustee of NSW later became the NSW Trustee and Guardian.

Correspondence between parties prior to institution of proceeding

On 2 March 2020, the applicant purported to instruct Kennedy & Cooke Lawyers (who held the deceased’s codicil) to obtain a grant of probate in NSW.

By letter dated 16 March 2020, Smallwoods Lawyers, who acted for the respondent, advised Kennedy & Cooke that the respondent did not wish to instruct that firm. Further, they advised both Kennedy & Cooke and the applicant that the respondent did not acknowledge the validity of the codicil in view of the deceased’s medical condition at the time of its execution.

By correspondence dated 25 March 2020 the applicant, amongst other things, rejected the suggestion that the codicil was invalid.

During the period of the above correspondence, the applicant was also corresponding with the NSW Trustee and Guardian (‘NSWTG’). Thus, by letter dated 6 March 2020, she advised NSWTG about the history of disputes between her and the respondent, stating that they were ‘not compatible’. She asked NSWTG to agree to administer the estate if she formally renounced her executorship. However, on 31 March 2020, NSWTG replied, noting that it had been advised (by Smallwoods) that the respondent was contesting the validity of the codicil. Given the validity of the codicil was in question, NSWTG could therefore not accept the renunciation. It also encouraged the applicant to obtain independent legal advice.

The applicant (through her husband, Gavin Carroll) then sent further correspondence to the respondent, dated 31 March 2020 and 28 April 2020, to ascertain if the two siblings could work together as co-executors. She maintained the validity of the codicil, but was now suggesting that an application for probate be made in Victoria.

By email dated 4 May 2020, the respondent stated that he did not agree to the applicant obtaining a grant of probate in Victoria. Further, that as he had ‘grave doubts’ as to the testamentary capacity of the deceased, he did not propose that the codicil be part of the application. Nevertheless, he did rely on the terms of the codicil as further evidence that the application should be made in NSW. He also suggested that if the applicant was not agreeable to a joint application for a grant in NSW, then NSWTG would be asked to apply for letters of administration (with associated costs).

At this point, the applicant approached Probate Law Centre for advice. In oral submission, the applicant claimed that she had sought the advice because she wanted to validate the codicil. No formal advice was before the Court, although there was an email communication from Probate Law Centre of 8 May 2020 which stated: ’As discussed today, I confirm that we can apply for a Grant of Probate in Victoria for you without the consent of the second executor to the Will.’

By email of 20 May 2020, the respondent advised the applicant that he had become aware of the appointment of Probate Law Centre, and did not agree with it. He further suggested that there were a number of issues that the applicant needed to agree with. He again asked if the applicant would agree to an application for a grant of probate in NSW.

The applicant’s husband replied on 21 May 2020. He raised a number of complaints about the respondent’s actions. However, he also acknowledged that the construction of the Deed (at least insofar as it related to the strata plan) had nothing to do with the estate, and would need to be determined in a separate proceeding.

The applicant also wrote to the respondent on 21 May 2020 (copying in the grandchildren beneficiaries and Probate Law Centre). She re-iterated that Victoria was the correct place to apply for a grant of probate, and that the codicil was a valid instrument. She referred to the respondent’s contrary suggestion as ‘disturbing, false and misleading’.

By correspondence of 25 May 2020, Smallwoods then wrote to the applicant, including the following statements:

1.Although my client has doubts about your mother’s testamentary capacity at the time she executed the codicil dated 23rd of December 2009 he is willing to include that codicil together with the will dated 18th of July 2007 in a joint application for probate. His agreement in this respect is on the basis that it does not alter the beneficial interest of the beneficiaries named in her 2007 will.
2.That the grant of probate be to the Supreme Court of New South Wales…

…
4.That any areas of dispute in relation to the Family Deed or the Deed of Partition dated 3 December 2009 be referred by you as executors to the court for judicial advice.

The correspondence also noted that the issue relating to the ‘deeds’[6] could only be addressed once probate was granted. The letter sought agreement by 27 May 2020, after which time the respondent would seek to have NSWTG appointed as administrator.
[6]The Court was not provided with the ‘Deed of Partition dated 3 December 2009’.

By correspondence of 27 May 2020, the applicant disputed that NSW was the appropriate state in which to seek a grant of probate, and referred to the respondent’s ‘false and inaccurate interpretation of the Deed’. She also strongly objected to the prospect of disputes relating to the Deed being referred by the executors to the court for judicial advice, as this would mean ‘gobbling up’ estate funds for an improper legal action. She stated that she was:

[C]urrently seeking Grant of probate in the state of Victoria, and have given instruction to do so, to the Probate Law Centre as is my right under the law to apply in Victoria without the second executor’s consent.

She also suggested that the respondent renounce his role as executor.

By email dated 1 June 2020, Smallwoods enclosed a letter to Probate Law Centre. The email also enclosed a signed affidavit which was to be filed with the Supreme Court of Victoria if the applicant proceeded with her application, as well as a copy of a caveat in respect of that application. The letter relevantly stated:

We therefore invite your client to withdraw her proposed Application for a Grant of Probate of the deceased’s Will and Codicil in Victoria and join in the appointment of the NSW Trustee & Guardian to apply for a Grant with the Supreme Court of NSW.
If your client does not agree to desist from her proposed application in Victoria, our client will claim indemnity costs in any proceedings he needs to commence.
Our client will rely on this letter and earlier correspondence in an application for indemnity costs.

On 4 June 2020, the respondent then filed a caveat which sought that nothing be done in relation to the will and codicil without notice being given to the caveator.

On 8 June 2020, the applicant’s husband replied to the 1 June 2020 letter, stating that the applicant would not desist from her application in Victoria. Further, the email stated that the respondent had lost the right to direct communication with the applicant due to his history of abusive behaviour towards her, and that ‘Jane will never speak or communicate directly with Robert again’.

By correspondence of 18 June 2020, Smallwoods approached NSWTG asking whether it would be prepared to apply for a grant of probate and whether the application should be in ‘solemn form’. The letter enclosed the will and codicil and highlighted that: ‘You will see from the Codicil that the deceased has appointed the “Public Trustee of New South Wales” as her substitute executor in the instance of there being a disagreement between our client and his sister Jane.’

Initiation of proceeding

The applicant filed her application for a grant of probate of the will and codicil in the Supreme Court of Victoria on 21 June 2020, with herself as the sole applicant ‘as one of the executors named in the said Will’ (but with leave for the respondent to ‘come and prove the same’).

On 29 June 2020, Smallwoods sought further clarification from Probate Law Centre as to the applicant’s response to the 1 June 2020 letter, again foreshadowing an application for indemnity costs. By a further letter dated 10 July 2020, Smallwoods also put Probate Law Centre on notice that, unless the applicant withdrew her application by 5.00pm on 17 July 2020, the respondent would file a summons accompanied with grounds claiming that the application should be rejected. The grounds for such a summons were stated to include:

(a) That the appropriate jurisdiction is New South Wales due to the location of the deceased’s interest in real estate being within New South Wales; and
(b) That the Codicil which you intend to propound makes it clear that if there is any disagreement between your client and our client as co-executors then the Public Trustee of New South Wales is to be appointed to administer the estate of the deceased.

As well as an order for costs against the applicant, the letter foreshadowed an application for costs against Probate Law Centre on the basis that there were no reasonable prospects of success of the application.

On 4 August 2020, the respondent filed his grounds of objection. Shortly after, he also filed a summons seeking to be joined as a defendant, and for directions. The grounds of objection included an allegation that NSW was the most appropriate forum. As well as the location of the assets (the Tura Beach property and other personal assets), the respondent relied on the following:

The Codicil appoints the ‘Public Trustee of New South Wales’ as executor in the event there is disputation between the applicant and the caveator and the deceased expressed a wish in her Codicil that neither of her children act alone as her legal personal representative.

On 12 August 2020, Probate Law Centre (who were still, at that time, representing the applicant) provided proposed orders to the Court for the upcoming directions hearing, which included an order that ‘the proceeding be referred to a judge for determination on the papers, subject to any direction to the contrary by the Judge.’

On 14 August 2020, a judicial registrar made orders joining the respondent as a defendant in the proceeding, and providing a timetable for each party to file and serve affidavit material and written submissions. The proceeding was then referred to a judge for determination of the issue raised by the caveat (though there was no explicit direction or order that the matter be determined on the papers).

On 24 September 2020, Probate Law Centre filed a notice of ceasing to act.

On 25 September 2020, the respondent filed written submissions which relied on the will and codicil, and maintained that NSW was the appropriate jurisdiction for a grant of probate. He submitted that it was clear that there was disagreement between the parties so that it was not appropriate for the applicant to apply for probate alone. Finally, he sought indemnity costs. In so doing the respondent cited the correspondence of 1 June, 29 June and 10 July 2020, and submitted that the applicant had failed in her overarching obligations to ensure that there was a proper basis to make the application and to co-operate with the respondent. The submission also stated that Smallwoods had given an undertaking to lodge the will and codicil with the Registrar at the Supreme Court of NSW, and that the respondent had also given an undertaking (through his solicitors) to support an application by NSWTG for a grant of probate of the will and codicil, or alternatively to apply for the appointment of NSWTG himself.

The applicant also filed written submissions on 25 September 2020, in which she made a broad range of complaints about the conduct of the respondent. She continued to submit that Victoria was the proper jurisdiction for a grant of probate, highlighting that there were no assets of value in NSW as the deceased was a bare trustee of the Tura Beach property by reason of the Deed. She sought orders which included that the codicil be validated, and that NSWTG be contacted to determine if it was prepared to act as trustee. She also sought an order that if NSWTG ‘renounces’, consent be sought from the State Trustee of Victoria to administer the estate. She also submitted that the respondent should pay legal costs on an indemnity basis.

On 6 October 2020, the applicant wrote a lengthy email to NSWTG[7] asking whether it would accept the role of executor ‘if a grant of probate is made in Victoria and if we receive validation of the Codicil’. Alternatively, she asked whether NSWTG intended to renounce, in which case she would seek to have another executor appointed. In the absence of a response, she also sent a follow up email on 20 November 2020, at which time she advised of her intention to ‘renounce in NSW favour’.
[7]The applicant placed some emphasis on this correspondence at the hearing.

The applicant also filed an affidavit, sworn 23 October 2020, which annexed a document containing submissions in response to the respondent’s written submissions. Those submissions suggested that the codicil had not been construed properly, given that the respondent had never renounced under cl 2.1.3 (which the applicant said she would have supported). She cited earlier correspondence from the respondent which showed that he did not accept the validity of the codicil. She also rejected the application for indemnity costs, claiming that she had genuinely tried to protect the estate. In so doing, she canvassed a number of complaints about the respondent’s behaviour, including what she claimed was his knowing misrepresentation as to the value of the assets. She also cited examples of ‘ongoing disharmony and disagreement’, and stated that the respondent was ‘unfit in his role’ from March 2020 onwards.

On 27 November 2020, the primary judge made orders to dispose of the matter. In ‘Other Matters’, her Honour set out relevant details about the will (recitals A to C), and the terms of cl 2.1.2 of the codicil (recital D). After also reciting details as to the procedural history (recitals F to J), she recorded the following:

K.Pursuant to the orders [of 14 August 2020], the parties filed written submissions and thereafter the proceeding was determined on the papers.
L. The codicil provides that neither the [applicant] nor [the respondent] are to act solely as Executor or Trustee of the deceased’s Estate, and that the Public Trustee of New South Wales is to be appointed Executor of the deceased’s Estate if either is unable or unwilling to act or ‘if there is any disharmony or disagreement between them in relation to the administration of my Estate or otherwise’.
M. Despite these terms of appointment expressed in the deceased’s codicil, the [applicant] filed her application for a grant of Probate of the deceased’s Will and codicil, with herself as the sole applicant.
N. Disharmony and disagreement has arisen between the [applicant] and the [respondent] and they are not able, and will be unlikely, to agree on matters pertaining to the administration of the Estate.
O. By the terms of the codicil to the Will of the deceased, NSW Trustee and Guardian, formerly the Public Trustee of New South Wales, is the only entity with the right to administer the Estate of the deceased.
…

Recitals R and S also recorded the undertakings referred to in the respondent’s submissions of 25 September 2020.

The substantive order was that the applicant’s application be dismissed (order 5). She was to bear her own costs of the proceeding (order 4), but was also ordered to pay the respondent’s costs of his summons on an indemnity basis (order 3).[8] Her Honour also gave procedural directions for the release of the will and codicil to Smallwoods so that they could be lodged with the office of the Registrar at the Supreme Court of NSW (orders 1 and 2).
[8]We read this order as effectively contemplating the respondent’s costs of responding to the application for probate. The summons was the mechanism by which the respondent was added as a party, and it ought be read together with the ‘caveator’s grounds of objection’, filed one day earlier, which provided his substantive response. This is consistent with the orders of the judicial registrar on 14 August 2020, which, on return of the summons, referred ‘the issue raised by the caveat’ to a judge.

Preliminary Applications
Respondent’s application to admit further evidence

By application dated 3 March 2021, the respondent applied, pursuant to r 64.13(2) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’),[9] for leave to rely on evidence which was not before the primary judge. The primary evidence sought to be adduced was a document of 20 December 2020, sent from the applicant to the respondent on 30 December 2020 (after the date of the relevant orders), which included the following statement:

I hereby formally renounce my Executorship, pursuant of the Deceased’s Codicil under clause 2.1.2 because of ongoing disharmony and disagreement with the co-executor since the deceased death to date. I do this pursuant to Clause 2.1.3. in favour of NSW Trustee and Guardian (NSW TG) being appointed instead of both co-executors. I believe the Codicil has now at last been validated by the court, it is my hope that the NSW TG will now accept the appointment.

[9]This sub-rule states ‘A party may apply for the Court of Appeal to receive oral evidence or further evidence, as the case may be.’

The respondent submitted that this evidence showed that the applicant had no real prospects of success in this Court given that, despite her subsequent renunciation, she was still seeking orders that her probate application proceed. Further, that this evidence would assist this Court in understanding the current state of affairs, which had changed from the time that the relevant orders were made.

The applicant opposed the respondent’s application to adduce further evidence.[10]
[10]The applicant filed a notice of opposition on 25 March 2021, and filed a written submission, a ‘further’ written submission, and an affidavit, each of 25 March 2021.

Rule 64.13(1)(b) provides that evidence which was not before the court whose decision is sought to be appealed shall not be relied upon, unless this Court orders otherwise. However, under r 64.36(3) this Court has power to receive further evidence upon questions of fact, including by affidavit.

The question of whether to admit fresh evidence is a matter of discretion. However, different considerations may apply depending on whether the evidence sought to be adduced is of matters that were in existence before (or at the time of) the trial, or of matters that arose after the trial.

Where the evidence relates to matters which were in existence before the trial, the Court will ordinarily refuse to admit such evidence unless it is satisfied that it is sufficiently credible; that it could not have been obtained with reasonable diligence for use at the trial; and that there is a high probability that the result would have been different had it been received at trial.[11]
[11]Foody v Horewood [2007] VSCA 130, [61]. See also Clark v Stingel [2007] VSCA 292, [25].

Where, on the other hand, the evidence relates to events which have taken place after the trial, this Court has said:

Generally speaking, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty in which the trial judge’s estimate has previously been made. Exceptionally, however, it may be admitted, if some basic assumption, common to both sides, has been falsified by a subsequent event. More precisely, as Lord Wilberforce observed in Mulholland v Mitchell, courts will allow fresh evidence where to refuse it would affront common sense, or a sense of justice, always keeping in mind that it should be an exceptional event.[12]

[12]Apostolidis v Kalenik (2011) 35 VR 563, 581–2 [56] (citations omitted); [2011] VSCA 307.

The respondent’s evidence concerned matters arising after the primary judge’s decision. We are of the view that the additional evidence should not be admitted. We are not satisfied that any basic assumption has been ‘falsified’ by this evidence. To the contrary, there was already evidence that the applicant intended to renounce, especially in her email of 20 November 2020. She nevertheless appeared to wish to proceed with her application so as to validate the codicil. In any event, the fresh evidence is somewhat equivocal since it is only provided on the basis of, and only after, the relevant orders were already made (which had ‘validated’ the codicil).

Insofar as the evidence relates to the procedural steps taken after the making of the relevant orders, that evidence is irrelevant to the proposed grounds raised in this application.

In those circumstances, we are not satisfied that it would ‘affront common sense’ to refuse the admission of this evidence, keeping in mind that such admission should be an exceptional event.

Applicant’s 5 July 2021 application to admit further evidence

By email of 5 July 2021, the applicant also sought further evidence to be adduced, which was not before the primary judge, some of which concerned matters which were in existence before the decision, and some of which concerned matters which occurred after the decision.[13]
[13]As well as the email itself, this evidence was: Smallwood’s Inventory of Assets sent to NSWTG (which the applicant dated as 9 December 2020); the applicant’s response to this inventory dated 13 April 2021, with attached draft letter; a chain of correspondence between the applicant and the Victorian State Trustee and between the applicant and the Court, dated 16 September 2020, and 2 and 3 December 2020; and an email of 8 May 2020 (as extracted above) from Probate Law Centre to the applicant.

We have accepted this email as an application to admit further evidence.

Although we have read this evidence, with one exception, the documents are not relevant to the applicant’s proposed grounds of appeal.

The exception is the email of 8 May 2020 (already extracted above). It is relevant, at least to the question of costs, since it supports the applicant’s claims that she obtained some advice from Probate Law Centre. Notwithstanding that the applicant has not clearly satisfied the principles outlined above (in particular, that this evidence could not have been produced at the original hearing with reasonable diligence), we have admitted this piece of evidence in the interests of justice. The balance of the applicant’s further evidence has not been admitted.

Applicant’s 7 August 2021 application to admit evidence not in application book

By correspondence of 6 August 2021, the Court provided to the parties a copy of the correspondence from Probate Law Centre of 12 August 2020 (cited above, which was not in the application book), as well as the decision in Coffey v O’Halloran (‘Coffey’).[14]
[14][2021] VSCA 29.

In response, by email of 7 August 2021, the applicant attached a series of emails which relevantly included:

·an email dated 29 September 2020 (at 12:45 pm), to the Supreme Court wherein the applicant requested the ‘hearing’ be set after 21 October 2020 and that the ‘judicial hearing is virtual (electronic) because both parties are interstate in NSW and because of border COVID closure’;
·a response email from the Court dated 29 September 2020 (at 3:04 pm), wherein the applicant was advised that: ‘the Court will now consider the material and revert to the parties once a decision has been made. This may take some time as the Court will be required to reach a substantive conclusion about the application and the issues raised by the caveator’;
·an email from the respondent to the Court dated 20 October 2020 (at 10:32 am) inquiring whether the matter had been ‘referred to a judge and if anything further is required from the parties prior to that referral’;
·an email from the applicant to the Court dated 20 October 2020 (at 1:57 pm) wherein she advised that she would be putting in a supplementary affidavit prior to 23 October 2020[15] ‘as I seek a full understanding of correct facts with Natural Justice’;
·an email of 16 November 2020 (at 7:21 am) from the applicant to the Court wherein she sought clarification about documents which had been filed and stated that she was concerned about ‘correct process and what to do’. Further that she wished to ensure the Court had all her documents ‘to review and consider for a fair hearing in this case.’

[15]The applicant did file a further affidavit sworn 23 October 2020.

We have accepted the applicant’s email to the registry as an application to adduce additional evidence beyond that contained in the application book.

The respondent objected to this evidence, and claimed that it was not relevant. The respondent highlighted that, at a time when the applicant was legally represented, she had applied for the matter to be determined on the papers (with no oral hearing). At the very least, the respondent submitted, the additional material deserved little weight.

However, we consider that the evidence is clearly relevant to the allegation that the applicant was denied a fair hearing (proposed ground 1). The Court should have the benefit of the entire course of correspondence between the applicant and the Court as to the mode of hearing. Such evidence is also not ‘fresh’ within the above principles, since the emails were clearly sent to, and were therefore ‘before’, the Court prior to the making of the decision.

However, the weight of this additional evidence will be discussed further below.

Evidence provided by the applicant post-hearing on 12 August 2021

On 12 August 2021 (after the hearing on 10 August 2021) the applicant provided to the Court some application book references, which she had been invited to provide. In addition, the applicant provided copies of three caveats still registered on the Tura Beach property (as at 17 July 2020). The caveats were dated 19 April 2010 and 29 May 2014 (in the name of the respondent), and 10 February 2012 (in the name of Marilyn Goff, the respondent’s wife).

The applicant had no leave to adduce this further material (which was provided without notice to the respondent), and we do not grant leave to adduce it. In any event, as will become apparent, the further material is irrelevant to the resolution of the application for leave to appeal.

Proposed amended application for leave to appeal

By email dated 17 June 2021 (approximately 7.5 weeks before the hearing), the applicant purported to file a further proposed amended application for leave to appeal, dated 17 June 2021, and sought that it replace previous copies already submitted.[16] We have treated her actions as an application for leave to amend her application.
[16]In lieu of a summary (which the parties were unable to agree upon), the applicant had earlier purported to file a proposed amended application for leave to appeal by emails on 7 May 2021 and 10 May 2021. However, in her email of 17 June 2021 she referred to this earlier application as ‘rushed’ and sought to replace it.

The proposed amended application appeared to leave the proposed grounds largely unchanged.[17] However, there are two major changes:

·at paragraph 6(b) the new document raised nine ‘questions of law’. Although some of these questions appeared to raise matters that were not new, a number of these questions raised fresh issues; and
·the new document sought to amend order 5 of the orders sought to include an order that the will and codicil be released from the Supreme Court of NSW to be transferred to the Supreme Court of Victoria.

[17]Proposed ground 3 was slightly altered to read: ‘Her Honour, mistook the construction of the Codicil, the jurisdiction for probate: the facts within …’.

Although the respondent did not object to the proposed amendment to the orders sought, he objected to the additional ‘questions of law’ which raised new issues, and were not within the scope of the original proceeding. Counsel submitted that the respondent was prejudiced by these additions.

Under r 36.01 of the Rules, this Court may, at any stage, grant leave to a party to amend any document in the proceeding in order to determine ‘the real question in controversy between the parties to any proceeding’. This turns on whether the proposed amendment would be in the interests of justice,[18] which question may be informed by:
[18]Traffic Technique Pty Ltd v Burgmann [2020] VSCA 319, [52], [58]; Northern Health v Kuipers [2015] VSCA 172, [28], [33] (‘Kuipers’). See also Civil Procedure Act 2010 s 9(1).

·whether there will be substantial delay caused by the amendment;
·the extent of any wasted costs;
·whether there is an irreparable element of unfair prejudice caused by the amendment;
·concerns of case management arising from the stage at which the amendment is sought;
·whether the grant of the amendment will lessen public confidence in the judicial system;
·whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[19]

[19]Kuipers [2015] VSCA 172, [28], citing Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London [2011] VSC 370, [8]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

Further, the Court will not permit an amendment that has no real prospects of success.[20]
[20]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [47].

The ‘questions of law’ are ambiguous and confusing and repeat matters contained in the existing application for leave. Insofar as new matters are raised, many are also without foundation. For example, by question of law 4, the applicant queried whether she should have been protected and indemnified under s 31 of the Administration and Probate Act 1958. However, this section only applies to payments made in good faith under a representation where probate has been granted.[21] That provision has no application to the issue as to whether probate should be granted in the first place.
[21]Question 3 also referred to s 18 of the Administration and Probate Act 1958, which only applies where probate ‘is granted’.

Insofar as the application seeks further procedural orders as to the transfer of the will, a refusal to allow the applicant to amend would not prevent the Court from giving appropriate directions to give effect to any decision made.

Ultimately, having regard to the low prospects of success, the late stage at which the application was made, the prejudice to the respondent, and the importance of finalising the parameters of this dispute further to the overarching purpose,[22] it would not be in the interests of justice to allow the amendment sought.
[22]See Civil Procedure Act 2010 ss 7, 9.

Although we have read the matters contained in the proposed amendment, and taken into account any matters which relate to the existing grounds, we will therefore not grant leave for the filing of the proposed amended application dated 17 June 2021.

Proposed ground 1: Right to fair hearing
Submissions

The applicant complained that the primary judge’s orders and directions largely replicated the respondent’s submissions below, and made no reference to her own materials. She also submitted that she was denied the right to a ‘fair hearing’, contrary to s 24 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) and the rules of natural justice. She also submitted that the judge’s decision should not have been made ‘on the papers’, notwithstanding that the Probate Law Centre had proposed that course on her behalf on 12 August 2020.

The respondent submitted that the primary judge’s order referred to the relevant facts and that, in the context of the COVID-19 pandemic, the determination of the matter on the papers was not a denial of procedural fairness, even where the litigant was self-represented. He also noted that determinations of probate applications are regularly made outside the context of an open court.

Counsel also emphasized that, at the time the request for an order on the papers was made, the applicant was represented. Further, that notwithstanding the applicant’s reference to a ‘virtual hearing’ (in the email of 29 September 2020), the correspondence from the Court made clear that there was not going to be an oral hearing. Nor did the applicant ever demand one.

Finally, counsel for the respondent submitted that, given the proceeding concerned the identity of the person with the right to administer the estate on the proper construction of the codicil, there was also no need for a public hearing where both parties accepted that the applicant was not the person with the right to administer the estate (given the disputation between the parties).

Analysis — Legal framework

It is the fundamental obligation of every court to ensure a fair hearing for the parties before it, since procedural fairness is ‘an essential attribute of a court’s procedure’.[23] This right is firmly established at common law and is also protected by s 24(1) of the Charter, which relevantly provides as follows:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

[23]Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156]; [2013] HCA 7.

Fairness is not an abstract concept, however, but is essentially practical, since the concern of the law is to avoid ‘practical injustice’.[24] Thus in two decisions of this Court, the following principles have been distilled:[25]
[24]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [38]; [2003] HCA 6.
[25]Doughty-Cowell v Kyriazis [2018] VSCA 216, [63] (citations omitted), citing Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215.

…
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
• the nature and complexity of the issues in dispute;
•the nature and complexity of the submissions which the party wishes to advance;

• the significance to that party of an adverse decision; and
• the competing demands of the time and resources of the Court.
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As [the Court] said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.

The statutory framework governing the proceeding is also relevant to the question of ‘reasonable opportunity’.[26] Like all civil proceedings, the application for probate was governed by the provisions of the CPA. Under the CPA, the Court is required to give effect to the ‘overarching purpose’, which is to facilitate ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute.’[27] This very important statutory directive recognises the fact that litigation occurs within a context wherein resources are finite and — to that end — recognises the importance of case management principles.
[26]Roberts v Harkness (2018) 57 VR 334, 355 [50]; [2018] VSCA 215.
[27]Civil Procedure Act 2010 ss 7, 8.

Specifically, the CPA requires the Court to deal with a civil proceeding in a manner proportionate to the complexity of the issues in dispute (s 9(1)(g)(i)). The Court may also actively case manage civil proceedings by deciding which issues need full investigation and a ‘hearing’, or which may be disposed of summarily (s 47(3)(c)). It may also give orders it considers appropriate to further the overarching purpose in relation to the conduct of the hearing generally (s 49), including whether evidence in chief should be given orally or otherwise (s 49(3)(j)).[28]
[28]Civil Procedure Act 2010 s 47(3)(e)(iii) also provides that a Court may ‘[deal] with [a] civil proceeding without the parties needing to attend court’, although it is arguable that this provision may relate only to case management, rather than the hearing: see Coffey [2021] VSCA 29, [43].

These principles are also reflected in r 34.01 of the Rules which states that, at any stage of a proceeding, the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

This is quite apart from the powers the Court was given during the COVID-19 pandemic[29] (which were available at the time of the primary judge’s decision).

Analysis — Application of framework

[29]At the time of the primary judge’s decision, s 129B of the Supreme Court Act 1986, inserted by the COVID-19 Omnibus (Emergency Measures) Act 2020, provided that a court may decide any issue or determine any proceeding entirely on the basis of written submissions and without an appearance if it is in the ‘interests of justice to do so’, and whether or not the parties consent to that course.

In determining the practical content of fairness in this particular case, as indicated already, the critical issue was whether the applicant was an executor entitled to a grant of probate. Allied to this issue was the proper construction of the codicil. Save for underscoring the extent of the disharmony between the parties, the scope of the respondent’s alleged misconduct, and the value of the Tura Beach property, shed no light on this critical issue.

The decision also occurred in the context of a high volume jurisdiction where the Court routinely makes around 20,000 grants of probate in a single year.[30] This is consistent with the fact that the Registrar of Probates has also been given powers to grant probate.[31] This consideration reinforces the need for the Court to identify and manage critical issues, and avoid spending unnecessary time on irrelevant issues, so as to advance the overarching purpose.
[30]Reported grants of probate: 21,595 (2016–17); 19,648 (2017–18); 18,221 (2018–19); 19,729 (2019–20). See and Probate Act 1958 s 12.

Turning then to the specific complaints here, the applicant appeared to focus on the primary judge’s heavy reliance on the respondent’s submissions; the mode of decision (to dismiss) being ‘on the papers’; and (as a separate matter), the mode of decision in relation to indemnity costs.

In relation to the reliance on the respondent’s submissions, the primary judge did not refer to many of the other submissions made (of both the applicant and the respondent), including those the respondent made about the appropriate jurisdiction (being NSW, based on the location of the assets). Rather, as recitals L to O make clear, the primary judge proceeded on the (undisputed) basis that there was continuing disharmony and disagreement between the applicant and the respondent. That being so, the terms of the codicil provided that the only entity with the right to administer the estate was NSWTG.

Unsurprisingly, therefore, her Honour considered the respondent’s submissions on the codicil to be correct and dispositive. Absent a proper application by someone entitled to act as executor, the application was doomed to fail, and there was no need to deal with the extraneous issues raised by the parties.

Although there was some reference to the hearing not being ‘impartial’, the applicant raised no specific allegation of bias. In any event, there was simply no evidence to establish a foundation for such a claim. Nor would a fair minded lay observer reasonably apprehend that the primary judge might not bring an impartial mind to the decision.[32] Instead, the acceptance of the respondent’s submission on the codicil was appropriate and correct, and efficiently disposed of the application.
[32]Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 437 [31]; [2011] HCA 48.

Turning to the mode of hearing, there may be some doubt as to whether the applicant consented to the decision being made ‘on the papers’. Although the applicant expressly sought that the proceeding be determined on the papers (through her then solicitors) on 12 August 2020, the subsequent emails (admitted as outlined above) cast some doubt on this position. In particular, the applicant’s reference to a ‘virtual hearing’ (in the email of 29 September 2020) suggests that she was expecting an oral hearing.

Even presuming then, in favour of the applicant, that she did not consent to orders being made on the papers, or had revoked her earlier consent, we are not satisfied that any breach of procedural fairness is established. As the Court’s previous decisions have made clear, what constitutes a reasonable opportunity for a party to be heard is not determined by that party’s own wishes or expectations. On the contrary, it is for the Court hearing the matter to determine what is reasonable, having regard to the various factors referred to earlier.[33]
[33]Doughty-Cowell v Kyriazis [2018] VSCA 216; Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215.

Turning, first, to the substantive order to dismiss, we consider that there was no practical injustice. We say this having particular regard to the simplicity of the critical issue (namely, the operation and effect of the codicil, which did not involve disputed questions of fact because both parties agreed that there was disharmony between them and the litigation itself revealed that to be so), the extensive opportunity for written submissions, and the competing demands of the time and resources of the Court in the probate jurisdiction.

In so finding we have taken into account that the applicant was (ultimately) self-represented. However, she was represented at the time the proceeding was initiated, and was well able to advance extensive submissions (both in September and October 2020). The materials also suggest that she was able to seek assistance from her husband, who was a former solicitor. Our own review of the applicant’s written materials, and our observation of her oral submissions, confirmed that she was well capable of formulating her contentions.

Some reference is, however, necessary to the decision of this Court in Coffey.[34] That case concerned a challenge to orders made on the papers, passing over the executors of the deceased’s estate, and granting leave for an independent person to apply for letters of administration. This occurred in circumstances where one of the executors, Ms O’Halloran, accepted that both she and the other executor (Mr Coffey) should be passed over. However, Mr Coffey (who was self-represented) wished to remain as executor, and hence wished to challenge various allegations made against him, including that he was conflicted.
[34]As stated above, the Court brought this decision to the attention of the parties by email on 6 August 2021, prior to the hearing of this application.

The Court observed that ‘Mr Coffey was entitled to an opportunity to demonstrate (by cross-examination or otherwise) the falsity of the allegations made against him and the lack of any basis for him being passed over’.[35] In that context, the Court held that the determination of the proceeding on the papers was not appropriate because the case involved disputes of fact that were not capable of being resolved by the examination of competing affidavits. The decision hence involved a denial of procedural fairness, and also offended the open court principle.[36]
[35]Coffey [2021] VSCA 29, [54].
[36]Ibid [58].

The Court in Coffey also made the following observation:

Accepting, for present purposes, that there may be circumstances in which a court could order a trial of a proceeding ‘on the papers’, over the objection of a party, such circumstances must, in our view, be rare. Moreover, it would be difficult to see how any such order could ever be made in a case involving disputes of fact of any significance, and where one of the parties wished to cross-examine another.[37]

[37]Ibid [47] (citations omitted).

What was said in Coffey must be understood in the context of that case, where there was a material dispute of fact and a reasonable request by a party to cross-examine. In those circumstances, as the Court said, that party’s entitlement to a fair hearing would effectively preclude the possibility of a trial ‘on the papers’. Whether such a trial will be appropriate in other circumstances, however, will depend on the extent to which the various considerations set out earlier are applicable.

The present case is, in any event, readily distinguishable from Coffey. Given the critical issue on which the present case was resolved, namely the operation of the codicil, in circumstances where the disharmony and disagreement between the parties was undisputed, there were no disputes of fact which necessitated cross-examination of witnesses by way of oral hearing. While the applicant might have wished to have the court resolve other issues of fact and law, those other issues simply did not arise given the operation of the codicil.

As to the application of open justice principles, it is well established that these principles are not absolute. For example, they may be limited in the exercise of the Court’s inherent jurisdiction where this is necessary to secure the proper administration of justice.[38] The character of the proceedings, and the nature of the function conferred upon the Court, may also qualify the application of the open court principles.[39] The provisions of the Open Courts Act 2013 further confirm that open justice principles can be displaced where the circumstances make it necessary.[40]
[38]Hogan v Hinch (2011) 243 CLR 506, 531 [21]; [2011] HCA 4.
[39]Ibid 531 [21].
[40]Open Courts Act 2013 ss 4, 28.

The present matter, in reality, was one where, save for costs orders, the disposition was obvious on a straightforward reading of the codicil. In those circumstances the primary judge was not required to hold a public hearing for the sole purpose of satisfying open justice principles.

For reasons given above, there was no practical injustice by reason that the dismissal order was made on the papers.

For completeness we note that, even if our conclusion on whether there was a fair hearing is incorrect, we are satisfied that no different ultimate order could have been made.[41] Thus, given:
[41]See Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. This is, again, distinguishable from Coffey, where a similar argument was rejected: [2021] VSCA 29, [55].

(a) the terms of the codicil;

(b) the fact that each party relied on the will and the codicil (and hence accepted that the codicil was valid); and

(c) (as each party acknowledged) there was extensive ongoing disagreement between the parties;

the Court was required to give effect to the codicil. The consequence was that the applicant was simply not entitled to obtain a grant of probate.[42] The inevitable result was that the application needed to be dismissed. (We discuss below, in the context of proposed ground 3, the applicant’s contention as to the interpretation of the codicil.)

[42]It appears that the applicant thought she was able to rely on s 18 of the Probate and Administration Act 1958 as the basis for bringing her probate application alone. We note that s 18 applies ‘where probate is granted’; it thus had no operation in relation to the applicant’s application for probate.

It is necessary to next turn to the order that the applicant pay the respondent’s costs on an indemnity basis, which was also made on the papers.

Although costs decisions are more regularly made on the papers, this will not necessarily be appropriate in every case. As discussed above, if there is a reasonable request for cross-examination, denial of that request is likely to breach the requirement of procedural fairness.[43] The analysis will therefore again depend on the particular circumstances of the individual case.
[43]See Joubert v Campbell Street Theatre Pty Ltd (in liq) [2011] NSWCA 302 cited in Coffey [2021] VSCA 29, [40]–[41].

In the present case, we have set out the background at some length. From 1 June 2020, when the applicant was represented, she was squarely on notice that an application for indemnity costs would be made if she persisted with her application. The respondent’s submissions of 25 September 2020 also made this clear. In fact, the applicant herself also sought indemnity costs in her submissions of 25 September 2020. Moreover, she took the opportunity to directly address the respondent’s submissions on indemnity costs in the further submissions she provided on 23 October 2020.

There was no need for an oral hearing in these circumstances. Rather, we consider that it was both open and appropriate for the primary judge to determine the question of costs on the papers, having particular regard to the overarching purpose of the CPA, and the fact that the applicant made submissions about costs, including the question of indemnity costs.

In all the circumstances, then, there was no beach of procedural fairness, nor any breach of s 24 of the Charter. Proposed ground 1 is not established.

Proposed ground 2: Failure to identify that interest in Tura Beach property had no monetary value to estate
Submissions

The applicant submitted that the primary judge ‘mistook the facts’ by failing to identify that the Tura Beach property had zero value to the estate because — it was said — the deceased held the interest as a bare trustee. The applicant submitted that the primary judge was silent in her determination of whether the property had monetary value to the estate, but also that her Honour had accepted false evidence from the respondent that the property had a value of $500,000. The applicant submitted that the value of the property to the estate needed a ‘just determination’.

The applicant also complained that the respondent’s calculation of the value of the estate (at $680,000) unnecessarily inflated the estate administration costs by $20,000, which was said to be a breach of s 17 of the CPA. The applicant alleged that the respondent had self-interested motives for doing so.

This proposed ground was also used to agitate the broader issue of the appropriate forum for probate. Thus, the applicant submitted that the Court did not recognise, or ignored, that the deceased was domiciled in Victoria with all her assets of value in this state.

Analysis

The primary judge made no finding as to the value of the Tura Beach property. More particularly, the primary judge’s orders do not require NSWTG to treat the estate as having a value of $680,000.

This approach was appropriate given that the value of the interest to the estate was irrelevant to the only critical issue. As highlighted already, that critical issue was whether the applicant was an executor entitled to a grant of probate on a proper construction of the codicil. Contrary to the applicant’s submissions, there was no need for any ‘determination’ as to the value of the Tura Beach property in this proceeding.

There was also no need to consider the issue of the appropriate jurisdiction for an application which the applicant was not entitled to make.

There is no merit in this proposed ground.

Proposed ground 3: Interpretation of the codicil
Submissions

The applicant submitted that her Honour was wrong to find that the codicil disentitled the applicant from bringing her application for a grant of probate. She suggested that the Court misconstrued the codicil by failing to apply the mechanism contained in cl 2.1.3. She appeared to submit that renunciation (under cl 2.1.3) was a precondition to the appointment of NSWTG.

Analysis

In construing a will, the fundamental principle is to give effect to the intention of the testator, as expressed in the terms of the will.[44]
[44]Fell v Fell (1922) 31 CLR 268, 273–4; [1922] HCA 55.

When construed in this light, it is clear that the applicant’s submissions misconstrued the codicil.

Thus, on a plain reading, cl 2.1.2 makes provision for the appointment of the Public Trustee of NSW if a number of different circumstances exist. Such circumstances include where either (or both) of the children fail to survive the deceased by 30 days; where either (or both) of the children are unable to act or continue to act; and where either (or both) of the children are unwilling to act or to continue to act. Consistent with the clear intention of the deceased, those circumstances also include where there is any disharmony or disagreement between the siblings.

Clause 2.1.3 is then an evidentiary provision which is to be read together with cl 2.1.2. It is not a precondition to the appointment of the Public Trustee, but provides a simple evidentiary method by which the circumstances set out in cl 2.1.2 may be established. Thus a formal written renunciation, or written resignation, by one child is sufficient evidence ‘to the Public Trustee of New South Wales’ (being NSWTG) of the deceased’s appointment of it as executor. Such conduct clearly communicates that the child is ‘unwilling to act or continue to act’. Clause 2.1.3 does not otherwise limit the general circumstances in which an appointment may be made under cl 2.1.2. Critically, it leaves open the appointment of NSWTG where there is ‘disharmony or disagreement’ between the children (as found here). Finally, we note that, if cl 2.1.3 were construed in the way in which the applicant understood it, it would render cl 2.1.2 ineffective where the dispute between the parties was such that they would not agree to renounce their executorship (as has occurred in the present case). Such a construction of cl 2.1.3 should not be accepted.

The primary judge was therefore correct to rely on cl 2.1.2 (in recital D), and find that, where there was any disharmony or disagreement between the applicant and the respondent, the codicil provided for the appointment of NSWTG (recital L). In the light of the extensive evidence of disharmony and disagreement, it also followed that NSWTG was the only entity with the right to administer the estate (as found in recital O).

The applicant was thereby ‘disentitled’ from applying for a grant of probate. There was no requirement that there also be a renunciation, on a correct construction of the codicil.

Proposed ground 3 is unsustainable.

Proposed ground 4: Indemnity costs
Submissions

The applicant submitted that her Honour was ‘affected or guided by irrelevant matters within the meaning of House v The King[45]’ in ordering indemnity costs for a breach of overarching obligations under the CPA. She denied that she had committed any such breach.
[45](1936) 55 CLR 499; [1936] HCA 40.

The applicant submitted that the respondent’s conduct was a material consideration her Honour had failed to take into account. She suggested that the respondent had caused unwarranted litigation in breach of s 18 of the CPA. She also made wide-ranging complaints about the respondent’s conduct generally, with particular emphasis placed on what she claimed was his misrepresentation as to the value of the Tura Beach property, and his refusal to comply with the terms of the codicil. She highlighted the fact that the respondent had initially suggested that the codicil was invalid, and that NSWTG had been reluctant to accept any renunciation in those circumstances. She thereby believed that she needed to bring the proceeding to have the codicil ‘validated’.

The applicant also relied on her own offers to resolve the dispute. As well as the correspondence of 21 May 2020 and 27 May 2020, summarised above, she referred to an attempt in August 2020 ‘through her legal practitioners’ to resolve the dispute ‘if [the respondent] would agree to the validation of the codicil, for the [NSWTG] to be appointed’, and for both to pay their own costs.

In oral submissions the applicant’s husband made submissions on her behalf on this issue. He cited the primary judge’s alleged disregard of what was said to be the contumacious conduct of the respondent from late February to September 2020; the respondent’s failure to recognise that the Tura Beach property had no value to the estate; and that the applicant had legal advice before she made the application. He also submitted that the applicant made many offers to settle the proceeding, and believed that she was doing what was best for the beneficiaries with no interest in the outcome.

In written submissions, the respondent contended that the applicant made the application for grant of probate in wilful disregard of known facts (the terms of the codicil and the history of disputation between the parties), such that the costs orders were appropriate. In oral submissions, counsel contended that it should be inferred that her Honour accepted the submissions made at first instance, to the effect that there was no proper basis for the applicant to make the application, such that she breached one of her overarching obligations under s 18 of the CPA.

Analysis

We have already dealt with the question as to whether there was a breach of procedural fairness in the making of the costs order.

As the terms of this proposed ground of appeal correctly acknowledge, an appeal against the discretionary decision itself falls to be determined in accordance with the principles in House v The King.[46] For the applicant to succeed, we must be satisfied that some error has been made in exercising the discretion. This may only be demonstrated if the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide her, mistook the facts, or failed to take into account a relevant consideration.[47] Alternatively, error may be demonstrated if the conclusion arrived at was not reasonably open in the circumstances.[48]
[46]Ibid.
[47]Ibid 505.
[48]This is the ‘residuary category’ of error in House v The King: National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) [2015] VSCA 260, [45]; Littore v Rabobank Australia Ltd [2016] VSCA 258, [32].

In the present case the primary judge did not provide formal reasons.[49] However, as the respondent highlighted, at recital M of the orders her Honour stated that ‘Despite [the] terms of appointment expressed in the deceased’s codicil’,[50] the applicant filed her application ‘with herself as the sole applicant.’ It will also be recalled that, in the respondent’s submissions of 25 September 2020, he had contended that the application was brought without a proper basis. Having regard, then, to the recitals and the submissions at first instance, it may safely be inferred that her Honour did determine that the application was made contrary to (or ‘despite’) the clear terms of the codicil. Put another way, her Honour concluded that the application was brought without a proper basis, contrary to the overarching obligations contained in s 18 of the CPA.[51]
[49]The applicant did not make any complaint as to the adequacy or form of the reasons.
[50]Emphasis added.
[51]Civil Procedure Act 2010 s 18(d) provides that a litigant ‘must not make any claim … in a civil proceeding that … does not, on the factual and legal material available to the person at the time of making the claim …, have a proper basis’.

A breach of s 18 can be taken into account by a court in exercising its discretion as to costs.[52] It has also been recognised by this Court that an indemnity costs order is open, in the exercise of a judge’s discretion, where a proceeding is commenced and/or continued without any proper basis.[53]
[52]Ibid s 28.
[53]Wilson v Waigani Pty Ltd [2020] VSCA 153, [14], [163]–[164].

We have set out a detailed description of the background above. We note that the applicant had initially sought for the executors jointly to obtain probate in NSW; the respondent objected to that course at least in so far as it involved instructing the solicitors Kennedy & Cooke. We accept that the applicant took active steps from the outset to explore the option of renunciation in favour of NSWTG, but was initially prevented from doing so by the respondent’s early position on the validity of the codicil. Crucially, however, by the time the proceeding was actually commenced the respondent’s position had clearly changed, as is evident from the 25 May 2020 correspondence and the 1 June 2020 correspondence. By that point the respondent, in clear reliance on the codicil, invited the applicant to ‘join in the appointment of the NSWTG’ to apply for a grant of probate. ‘Despite’ this invitation, the applicant then issued a proceeding which had no proper basis.

It is clear from the documentary record that the respondent’s conduct was not always co-operative. While it is unnecessary for us to resolve the issues surrounding the value of the estate assets, and the construction of the Deed, both the respondent’s initial refusal to proceed with a joint application for probate in NSW, and his initial challenge to the validity of the codicil, were unhelpful. It is also clear that the applicant mistrusted the respondent.

Nevertheless, notwithstanding — indeed, because of — the extensive disputes between them, it was objectively clear by 1 June 2020 that this particular proceeding was pointless. The terms of the codicil made it clear beyond argument that, given the disputation, the applicant could not receive a grant of probate. Consistently with the deceased’s express intention, the only entity entitled to administer the estate was NSWTG.

Insofar as legal advice was concerned, any advice was apparently obtained in early May 2020, at which time the validity of the codicil was in dispute. The precise content of that advice is not clear, nor is it clear whether the advice altered from 1 June 2020. In any event, after 1 June 2020 it could not be said (by a lawyer or otherwise) that there was any proper basis for the application, for the reasons already given.

The alleged ‘offers’ made by the applicant in the correspondence in May 2020 are also unhelpful, as they unfortunately canvassed a large array of disputed matters rather than focusing on the need for this application in the first place. The precise form of any ‘offer’ made by the applicant’s legal advisers in August 2020 was not documented in any affidavit material before the primary judge or this Court. The only reference to such an offer was that stated in the applicant’s written case in this Court (and, thus, was not before the primary judge). In any event, such an offer was made after the proceeding was already issued.

Although, then, the question of costs was not necessarily straightforward, the decision made was clearly open. The applicant has not demonstrated any error in terms of House v The King.

Proposed ground 4 is also not established.

Conclusion

Save for making procedural orders for the resolution of costs, we will make the following orders

1.The respondent’s application to admit further evidence dated 3 March 2021 is refused.
2.The applicant’s applications to admit further evidence dated 5 July 2021 and 7 August 2021 are granted, in part.
3.The applicant’s application to amend her application for leave to appeal dated 17 June 2021 is refused.
4.Leave to appeal is granted in relation to proposed grounds 1 and 4.
5.Leave to appeal is refused in relation to proposed grounds 2 and 3.
6.The appeal is dismissed.

[2021] VSCA 267

21 September 2021