Cassar v Pendergast
[2010] VSC 559
•10 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5459 of 2009
| CONNIE CASSAR | Plaintiff |
| v | |
| BRENDAN PENDERGAST AND ANOR | Defendant |
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JUDGE: | ALMOND J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 15, 18, 19, 20 and 22 October 2010 | |
DATE OF JUDGMENT: | 10 December 2010 | |
CASE MAY BE CITED AS: | Cassar v Pendergast and anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 559 | |
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TORTS – Negligence – Legal practitioners – Economic duress
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the First and Second Defendants | Mr S Marantelli | Lander & Rogers |
| For the Third Defendant | Mr J Tsalanidis | Monahan + Rowell |
HIS HONOUR:
Introduction
The plaintiff Ms Connie Cassar is the one of 11 surviving children of Maria and Joseph Cassar. Joseph Cassar died on 27 October 2006 his wife having predeceased him. The late Mr Cassar’s will provided that Ms Cassar’s sister, Rita Cassar, could reside at the family home whilst she remained unmarried or until she ceased to live there permanently. If either event occurred, the property would be sold and the net proceeds divided equally amongst the late Mr Cassar’s 11 children.
Other than being treated equally as a residuary beneficiary, the will made no provision for Ms Cassar who was in necessitous circumstances.
During 2007 Ms Cassar decided to make an application for an order under Part IV of the Administration and Probate Act 1958 for provision to be made for her out of the estate on the basis that her father owed a responsibility to make provision for her proper maintenance and support and had failed to do so.
She contacted Mr Brendan Pendergast of the firm Maddens Lawyers to act on her behalf. Mr Mark Goldblatt of counsel was briefed to draw the necessary affidavit material and to appear. In October 2007 a proceeding was commenced and the matter progressed first to mediation on 25 March 2008 and then to trial on 8 September 2008. The proceeding was settled on the first day of the trial. Ms Cassar now sues Mr Pendergast, Maddens Lawyers and Mr Goldblatt.
In essence, Ms Cassar alleges that she was placed under severe duress at the mediation[1] and then at the trial which caused her to settle the proceeding “against her wishes and her best interest” thereby denying her the chance to have her case heard and tried on its merits[2] and to obtain a settlement that would be sufficient to provide “a roof over her head”.[3]
[1]Statement of Claim paragraph 9(A),.
[2]Statement of Claim paragraph 9(A), 11(D), 11(E), 11(F), 22, 23.
[3]Statement of Claim paragraph 12(A).
Ms Cassar also alleges that the defendants failed to take instructions from the plaintiff about contradictory material received by the defendants,[4] and failed to seek a court order for costs to be paid out of the estate;[5] that the first and second defendants failed to seek costs in relation to the mediation against the estate’s solicitors,[6] and failed to finalise the matter properly by leaving Ms Cassar to attend to finalising settlement;[7] and that the first defendant failed to proceed to trial for fear of not getting costs on the Supreme Court Scale.[8]
[4]Statement of Claim paragraph 10B.
[5]Statement of Claim paragraph 15A, 21B.
[6]Statement of Claim paragraph 9B.
[7]Statement of Claim paragraph 14C.
[8]Statement of Claim paragraph 19A.
Further, there are unparticularised allegations that the defendants should have known of Ms Cassar’s emotional feelings and of a decision of Hansen J decided in 2007, approximately one year prior to the trial.[9]
[9]Statement of Claim paragraph 24; Peterson v Micevski [2007] VSC 280.
Ms Cassar claims damages for negligence, breach of contract, breach of fiduciary duty, and for the intentional infliction of emotional distress. In addition she seeks exemplary damages of $2m.
The defendants each deny liability and rely upon the common law advocate’s immunity from suit.
Before addressing the detailed background of the matter I make some observations about the parties.
Parties
Connie Cassar
Ms Cassar (“Cassar”) conducted her own case. Though she lacked formal legal training she was an able advocate and demonstrated a meticulous knowledge of the court book. She was familiar with court procedures and used legal terms of art appropriately. She presented her position forcefully and was not easily diverted. She did not appear to be intimidated by the courtroom environment or by the fact that she was opposed to experienced counsel.
As a witness she was forthright and confident in her demeanour. When giving evidence she had a tendency towards overstatement and repetition. On occasions I found her to be evasive and unresponsive. Generally, Cassar presented as a person who knew how to stand up for herself.
Brendan Francis Pendergast
Mr Pendergast (“Pendergast”) is a barrister and solicitor who has been in continuous practice as a solicitor since 1985. He worked in the firm Maddens Lawyers at Warrnambool initially as an employee solicitor and for the last 21 years as a partner of that firm.
As at 2007 when he first met Cassar he had substantial experience conducting a litigation practice which included some major litigation including group proceedings at appellate level. He had appeared as an advocate in criminal and commercial matters. For the 10 to 12 years preceding 2007 Pendergast had concentrated on Part IV proceedings under the Administration and Probate Act1958 and sourced clients for that work by running weekly newspaper advertisements.
Pendergast gave evidence in a frank and open manner. He was responsive to all questions and gave considered answers without embellishment. He exhibited a less than perfect primary recall but this was substantially offset by his practice of taking contemporaneous file notes which he was able to use to refresh his memory. There were some shortcomings evident in the management of his file which he readily conceded. He impressed me as an honest witness well aware of the importance of his oath.
Mark Steven Goldblatt
Mr Mark Goldblatt (“Goldblatt”) is a member of the Victorian Bar and has practised as counsel since 1991. One of his areas of speciality is applications under Part IV of the Administration and Probate Act1958.
Goldblatt had a good recall of the events in question. He gave evidence in a frank and open fashion and was calm and responsive under cross‑examination. He also impressed me as an honest witness.
Background
On 16 April 2007, Cassar responded to one of the weekly newspaper advertisements and contacted Maddens Lawyers by telephone. She spoke to Ms Faulkner, Pendergast’s law clerk. In substance, Cassar told Ms Faulkner that she wished to challenge her father’s will, that she had no money and was living out of a vehicle. She said she told Ms Faulkner about “getting a roof over my head” although there is no reference to this in Ms Faulkner’s extensive diary note of the conversation. Ms Faulkner informed her that Pendergast was not available since he had gone on leave and that she would see that he would get back to her.
Cassar did not hear from Pendergast at that time. She approached the Law Institute of Victoria to seek an appropriate referral. She was referred to Mr David Williams of the firm Hicks Oakley Chessell Williams. She had a “one‑off” conference with Mr Williams who told her at the outset that he would not run the case. However he was prepared to write a letter to the estate’s solicitors. According to Cassar this was to “get feedback, see reaction and at the same time see where things were at”. At that time, Cassar said there was no communication between herself and her family. Mr Williams mentioned that if Cassar was thinking of challenging the will and was concerned that the family might sell the property without her knowledge, she should put a caveat on the title. Cassar followed this advice and lodged a caveat on 19 April 2007.
Mr Williams wrote a letter dated 9 May 2007 to Novatsis & Alexander, the solicitors for the late Joseph Cassar’s estate. In this letter Mr Williams briefly outlined Cassar’s personal and financial circumstances and advised that those circumstances would justify her bringing a claim against her late father’s estate pursuant to Part IV of the Administration and Probate Act 1958. Mr Williams advised that Cassar was keen for her claim to be resolved without the need to resort to litigation and would forebear from litigation if she were to receive an amount equal to one‑eleventh of the net residuary estate, provided the calculation was based on the market value of the family home.
By a letter dated 6 June 2007, Novatsis & Alexander advised Cassar that the trustees had declined her request for acceleration of the payment of her one‑eleventh share of the residuary estate on the basis that, given the size of the estate, to accede to Cassar’s request the trustees would have to sell the family home and thereby override the clear directions set out in the will of the late Mr Cassar.
According to Cassar, Mr Williams also advised her that the solicitor for the estate had said there were other siblings in the same circumstances as herself, as a result of which Cassar believed that her ten brothers and sisters were “against” her.
On 24 May 2007, Pendergast became aware of Ms Faulkner’s diary note which included a reference to the fact that the six month period for commencing claims of this kind would expire on 27 June 2007. As a result, he immediately telephoned Cassar to ensure she was aware that the deadline was looming and to follow up generally. During a very brief conversation Cassar said the matter was not proceeding and Pendergast made a note to that effect. According to Cassar she advised Pendergast that she was not proceeding because she had been told the estate was not prepared to settle and she believed that everybody was “against” her.
Subsequently Cassar received a telephone call from John Cassar, Cassar’s brother, one of the executors of the estate of her late father. As a result of the conversation she had with her brother, Cassar said she did not believe she was going to be on her own in challenging the will.
In September 2007, Cassar saw another newspaper advertisement for the services of Maddens Lawyers and Pendergast. She telephoned Maddens Lawyers and spoke to Pendergast. She outlined her circumstances and he said he would look at the matter and get back to her. In substance, Cassar said she told Pendergast she was living out of her vehicle, had no funds and wanted to challenge the will to try and “get a roof over my head”. Cassar said Pendergast asked how many siblings were in the family and the name of the solicitors for the estate so that he could make contact to get copies of probate and other documentation.
Pendergast recalled receiving this telephone call from Cassar. He recalled her as the person he had spoken to several months earlier and that there was a problem because the six month period for commencing claims had elapsed. Cassar told him her age, that her father had died and that everything in the will had been left to one of her sisters, Rita, as a life interest. She referred to a discussion that she had had with her brother, John, who claimed that there was about $36,000 of cash in the estate but she suggested that was not correct. She said the house was worth $240,000 plus and told him the date that probate had been granted. She said that she had written a letter requesting a one‑eleventh share of the estate and that had been rejected by the estate’s solicitors, Novatsis & Alexander. In substance Cassar said she was in parlous financial circumstances and asked Pendergast whether he would be prepared to act on a “no win no fee” basis. In Pendergast’s contemporaneous notes of the conversation there is no reference to the “roof over my head” remark.
Pendergast said that Cassar was unusual and memorable not like most of his clients who are totally overwhelmed by the court process. He described Cassar as “savvy” very demanding and someone who appeared not to be intimidated by court processes. She wanted Pendergast to act for her and to act for her immediately to get things moving. Cassar’s apparent knowledge of litigation processes and procedures was, in Pendergast’s experience, uncommon for a lay person.
On 3 October 2007, Pendergast had two telephone conversations with Cassar during which he confirmed he had received a letter from Novatsis & Alexander enclosing a copy of the probate parchment and the will. Cassar said that her parents had always assured her that when they died, as she was a single woman like her sister Rita, she would have the security of residing at the family home. She said that Rita lived on her own and had received a big pay out for a work related injury. Cassar expressed a belief that in 2003 her parents were subjected to influence by Rita to change the will. Cassar told Pendergast that she was homeless and lived in her car. In substance, Pendergast advised Cassar that the time for commencing the proceedings elapsed on 27 June 2007 and that he would make an application to commence a Part IV proceeding out of time. He told Cassar it would be necessary to file a summons and supporting affidavit as soon as possible and in that regard he would need to obtain her instructions and have an affidavit prepared. At that point Pendergast regarded himself as having been retained by Cassar.
On 4 October 2007, Maddens sent a letter to Novatsis & Alexander requesting an inventory of assets and liabilities of the estate and up to date accounting. Maddens advised that they were instructed to proceed to make application in the Supreme Court for an extension of time in which to commence a Part IV proceeding and requesting that no distributions occur in respect of the assets of the estate in the meantime.
On the 10 October 2007 Maddens filed and served an originating motion on behalf of the plaintiff.
By letter dated 10 October 2007, Maddens wrote to Cassar advising that the proceeding had been issued and served on her behalf. Maddens advised that it was proposed to brief Mark Goldblatt of counsel to appear at a directions hearing and to confer, advise and draft an affidavit in support of the application. Maddens advised that it was first necessary for Cassar to prepare a detailed narrative giving an outline of her life with her parents, where she was educated, where she grew up and her relationship with each of her parents and siblings. She was asked to outline in the narrative any care and attention she may have provided to her father during the later years of his life and to refer to her current circumstances and financial position.
On 12 October 2007, Pendergast conferred with Cassar at Maddens’ Victoria Point office in Docklands. During the conference, Pendergast provided Cassar with information about how the matter would proceed. He told her about the Part IV procedure, what they would need to do and what the defendants would need to do, describing the process of mediation and discussing with Cassar the fact that there were some hurdles to overcome because her application was made out of time. He asked her for written instructions in narrative form. In her account of this conversation Cassar said she repeated previous statements to Pendergast as to her need for a roof over her head.
On 24 October 2006, Pendergast had a telephone discussion with Mr Chris Alexander from the Novatsis & Alexander. Mr Alexander advised Pendergast that he had already been in dialogue and had received correspondence from other solicitors in the matter. This was the first Pendergast had heard that other solicitors had been involved. It concerned Pendergast because it made the application for an extension of time more difficult than it had seemed to be based on the instructions Cassar had given him. It made Pendergast wonder about the quality of those instructions. Pendergast asked Mr Alexander to send a copy of the correspondence and subsequently received relevant copy correspondence.
By letter dated 25 October 2007, Maddens wrote to Cassar enclosing a copy of the letter from Hicks Oakley Chessell Williams dated 9 May 2007 informing Cassar that it would be necessary for Maddens to explain why Cassar did not advance the matter within the six month period from the date of the grant of probate and advising that Maddens would require access to the previous solicitor’s file enclosing an authority to enable this to occur. Although Cassar provided an authority, Maddens did not obtain the Hicks Oakley Chessell Williams file which was ultimately produced at trial pursuant to a subpoena.
As requested, Cassar prepared a handwritten narrative.
On 7 November 2007, Cassar attended a conference with Goldblatt. Pendergast was not present and did not notify Cassar directly of his inability to attend. The conference proceeded in his absence and took about an hour. Cassar asked about Pendergast and Goldblatt informed her that he had received a phone call to say Pendergast was caught in traffic. During the conference, Goldblatt discussed with Cassar the financial circumstances of her brothers and sisters. She advised him she was the only one in such dire straits and that “the reason for challenging the will was a roof over my head”. Goldblatt said he would seek 50% of the estate plus costs and advised Cassar that she was out of time and that was a hurdle that they needed to get over.
Goldblatt gave evidence that during the 7 November conference he explained that in her Part IV case Cassar needed to show two things; that the deceased had an obligation to provide for her maintenance and support and that she had a special need. Before the conference Goldblatt had read Cassar’s handwritten narrative. He had concluded that she had no difficulty in relation to establishing a special need. During the conference he took her through the elements of s 91 of the Administration and Probate Act that pertained to her case. He took instructions from her in relation to matters that were not in her narrative that needed to be included in her affidavit. He looked at the asset position of the competing beneficiaries, noting there were 11 siblings in all. One pertinent matter was the fact that the proceeding had not been lodged in the six month period after obtaining probate and that Cassar had obtained legal advice from another solicitor within the six month period and that the legal advice and a letter had gone to the estate’s solicitors including a paragraph that foreshadowed an application under Part IV of the Act if resolution was not reached. During the conference, Cassar informed Goldblatt that she had lodged a caveat over the property within that six month period. Cassar agreed that she found Goldblatt was sympathetic and supportive during this conference and he took instructions and listened to her plight.
After the conference, Goldblatt drafted the proposed affidavit in support of Cassar’s application. Some amendments were made on instructions from Cassar and the affidavit was subsequently sworn.
Goldblatt was retained as counsel to appear on 13 November 2007 at a directions hearing. Orders were made providing for the filing and service of affidavit material and referring the matter to mediation.
Cassar said that while waiting for mediation she was anxious because of the way she was living and just wanted the matter to settle one way or the other. She spoke of her difficulties living out of her vehicle in the city. She said she telephoned Pendergast to advise him she was moving away from Melbourne, thinking of going to stay at a caravan park in Wangaratta where she would be safer than being in the back streets. Pendergast said he thought it was a good idea.
On 8 February 2008, Cassar telephoned Pendergast and said she was living in a camping ground in north-eastern Victoria. Pendergast said she appeared to be evasive about where she was living with the general reference to north eastern Victoria but he did not press Cassar for more information. She asked whether any affidavit material had been received from the estate’s solicitors and Pendergast told her that no affidavit material had been received. Pendergast recalls Cassar being very forthright in pushing him to get the affidavit material from the other side. His file note of this conversation records that he was to press the other side for delivery of the affidavits and advance the matter to mediation as soon as possible.
By letter dated 10 February 2008, Cassar wrote to Maddens and gave instructions to seek a date for mediation, preferably before but no later than 24 March 2008. In this letter Cassar wrote, “I’m of the firm belief that my family have no intention of settling in my favour, and to settle in any way they would have to sell the house”. In this letter Cassar enclosed a photograph of her current living accommodation which appeared to be a tent pitched in a caravan park. By letter dated 14 February 2008, Maddens responded to Cassar’s letter and advised that the photograph would be kept on file and otherwise advised on the progress of the matter.
At about the end of February 2008 and prior to mediation, an affidavit of Rita Cassar was received. Cassar provided comprehensive instructions in response to the affidavit on about 19 March 2008, a week prior to the mediation.
The mediation
The mediation took place on 25 March 2008. At about 9.30am on the morning of the mediation, Cassar met Goldblatt at his chambers, together with Pendergast. Also present was a friend of Cassar’s, Mr David Haskins. During the conference, Cassar told Goldblatt that one of the executors, John Cassar, was not going to attend the mediation. Goldblatt asked for Mr Cassar’s telephone number. He made contact, apparently with Mr Cassar’s wife, who confirmed he would not be attending the mediation and that he was not able to be contacted. Goldblatt ran briefly over what to expect at mediation and described how the process would unfold. There was discussion about the net value of the estate and the legal costs which would be incurred by both parties and about what a one‑eleventh share would be likely to be worth in monetary terms. There was discussion about the fact that that there were two issues of concern, the first being the extension of time application, the second being the issues which arose from Rita’s affidavit. Instructions had been received from Cassar in response to the Rita’s affidavit which Goldblatt had read before the mediation. Pendergast recalled that there appeared to be a vitriolic relationship between members of Cassar’s family, certainly between Cassar and Rita, so the case was problematic and there was discussion about that. Pendergast considered there was a problem with the extension of time application as there had been a reference to the deadline for making application under Part IV in the Hicks Oakley Chessell Williams letter. According to Pendergast, Cassar had obviously been advised by competent solicitors and despite the advice had failed to issue the proceeding within time.
The mediation was held at the Medina complex in Queen Street, Melbourne. Mr R. Phillips was the mediator. Goldblatt and Pendergast appeared for Cassar. Mr Haskins attended for some of the private sessions. Mr Sandbach of counsel and Mr Alexander from Novatsis & Alexander appeared with Rita Cassar for the estate.
Opening statements were made by counsel in joint session. Goldblatt set out the case for Cassar and Mr Sandbach set out the case for the estate. After the joint session the parties went into separate rooms and negotiations commenced. Cassar gave evidence that the first offer was that she return to the house under the same conditions as her sister. That offer was refused and a counter offer was made for $25,000, inclusive of costs. That offer was also refused. The last offer put by Cassar was $60,000 plus $24,000 in costs which was refused. A counter offer of $45,000 inclusive of costs was refused by Cassar. Near the end of the mediation Cassar gave instructions to put a final offer of $50,000 inclusive of costs.
Cassar alleges that during the mediation “the pressure started coming in” mainly from Pendergast. During a break when Cassar was alone with Pendergast in the room, Pendergast said, “Maybe you can get a job – maybe you can get a loan”. Cassar said she replied that she had “tried” and became emotional when she was talking to him, telling Pendergast she had even done a course and did well but within a couple of months her mother had passed away and she fell into “a heap”.
Goldblatt gave evidence that negotiations concluded at a point where the parties were essentially $5,000 apart. He said he specifically recalled that in the mediation Cassar was very forceful in rejecting offers and very adamant at the offers she wanted to put.
Pendergast gave evidence that there were about nine offers and counter‑offers made during the course of the day. Pendergast’s file notes disclose that the defendants made what was stated as a final offer at 1.00pm of $25,000 inclusive of costs and the plaintiff made what was stated as a final offer of $60,000 plus $24,000 costs. Some confidential discussion then took place with the mediator about what the estate might possibly accept and what Cassar might possibly accept. This occurred at about 1.55pm. At about 2.20pm the defendants advised that its best offer was $45,000 inclusive of costs. After discussions with Cassar and Goldblatt, Cassar instructed that an offer of $50,000 should be put. Pendergast said that Maddens had agreed to cap its costs at $24,000 for the purpose of the mediation which would produce $26,000 clear to Cassar.
Cassar gave evidence that the mediator went to put the $50,000 offer but came back and advised that the other side had already left so it was not possible to do so. Goldblatt’s recollection was that the last offers were not actually put as formal offers but were done through the mediator with the mediator indicating that the estate was prepared to go to a figure of $45,000 inclusive of costs. Pendergast could not recall but believes that the offer of $50,000 inclusive of costs was put to the other side but it was not accepted. I accept Cassar’s evidence in this regard as she seemed to have the clearest recollection on this issue. In any event, it is common ground that the matter did not settle at mediation.
After the mediation
After the mediation Goldblatt drew an affidavit in reply to the affidavit of Rita Cassar.
On 27 March 2008, two days after the mediation, Cassar gave evidence that she telephoned Pendergast and asked, “if the matter did proceed to trial how would the court go in regards to awarding me more than what I was entitled to under the will which was the one-eleventh”. According to Cassar, Pendergast replied, “Ninety nine per cent the court will not give you any more than what you are entitled to … the court would not make such provision that will leave any other siblings out”. Cassar said she replied to the effect that rather than go through the whole process, the trauma and distress and to have it all going in legal costs and dwindle to nothing she should try and settle. Pendergast agreed he received the telephone call but categorically denied giving Cassar advice in the terms she alleged. He agreed he might have said it was a possible outcome, but that he had been involved in Part IV matters and litigation long enough not to be giving categoric positions to clients, that it was not his practice to do so and that he didn’t do it with Cassar. He said forcefully, “I don’t ever do that”. I accept Pendergast’s evidence on this issue partly because it was given with great conviction but also because objectively I consider it improbable that a solicitor with Pendergast’s considerable experience in Part IV matters would give such categoric advice.
Pendergast said that in this telephone call, Cassar was quite anxious to settle the matter. He noted to her the estate’s last position of $45,000 and that Maddens’ costs were $24,000 which would result in a net payment of $21,000 to Cassar if it were accepted. Cassar asked whether Pendergast would reduce his costs from $24,000 to $20,000. Pendergast said he was quite firm that he was not prepared to do that because the costs had already been reduced and capped at $24,000. Cassar accepted that the costs were $24,000. She instructed Pendergast to make an offer of $49,000 inclusive of costs on the basis that she was content to accept $25,000 clear.
As a consequence of this telephone call, a letter from Maddens dated 2 April 2008 was sent to Novatsis & Alexander in which the offer of $49,000 inclusive of costs and disbursements was put. By letter to Cassar dated 2 April 2008 Maddens confirmed those instructions. A response was received soon afterwards from the solicitor for the estate seeking further time to consider the offer.
On 29 April 2008, Pendergast received a telephone call from Mr Alexander, the solicitor for the second executor, to advise that the $49,000 offer was not acceptable and advising that the defendants were not interested in putting any counter offer. Pendergast’s file note of a telephone conversation with Cassar on 29 April 2008 records that he had a telephone conversation with Mr Alexander, the solicitor for the second executor and was advised that Rita Cassar had withdrawn the offer of $45,000, the counter‑offer put by Cassar of $49,000 was rejected and that he had no instructions to put a counter-offer.
Cassar said that in mid-April 2008 she made an appointment to meet Pendergast on 29 April 2008 but that on the morning of the meeting at about 9.00am, she received a telephone call from Pendergast who informed her that he could not keep the appointment. Pendergast did not recall making this telephone call but did not deny it. Cassar said she pleaded with Pendergast but he said he could not see her at the pre-arranged time but maybe later that day but he did not know. Cassar said she told Pendergast how she was feeling, that she was breaking down and telling him about having suicidal thoughts and that she wanted a very urgent hearing because she could not take the pace anymore. Pendergast did not recall this discussion and said he could say confidently that he would have been highly likely to remember a discussion of that nature with Cassar.
Pendergast did recall having a telephone conversation with Cassar on 29 April 2008 during which he advised her of the conversation he had had with the solicitor for the estate. In substance, he advised Cassar that the $49,000 offer was not accepted and the $45,000 offer was withdrawn. After considerable discussion which included a discussion about the desireability or otherwise of bidding against oneself, Cassar indicated to him that she would be prepared to settle the matter for $47,500 inclusive of costs on the basis that Maddens costs were fixed at $24,000.
By letter dated 29 April from Maddens to Novatsis & Alexander, the offer of $47,500 was put. On the following day Maddens sent a letter to Fisher McCrae Solicitors who by then were acting for John Cassar, the co‑executor. In the letter Maddens enclosed a copy of the letter sent to Novatsis & Alexander containing the $47,500 offer. The offer was not accepted.
Cassar denies that she gave instructions to make the offer of $47,500 inclusive of costs, that if Pendergast put an offer of $47,500 inclusive of costs he did so without Cassar’s instructions and that the conversation relating to that matter did not take place on 29 April 2008 or on any other date. She refused to admit there was any possibility that she might have forgotten giving these instructions to Pendergast. Pendergast denied in the strongest terms that he acted without instructions. When it was put to Pendergast that he took it upon himself to make the offer in the hope he could settle the matter Pendergast said, “It offends my integrity, it’s not correct and I am horrified that you would suggest that I would construct letters like that of my own volition without instructions from a client”.
In support of the proposition that Pendergast acted without instructions, Cassar noted there was no copy letter on Pendergast’s file to her enclosing a copy of the letters containing the offer which were sent to the solicitors for the respective executors. Pendergast agreed that he could not point to a file copy of the letter sent to Cassar but denied that copies were not sent to her.
I do not accept that Pendergast acted without instructions. Although Pendergast was not able to point to a file copy of the letter to Cassar, it does not follow that Pendergast acted without instructions. In fact, consistently with his account of the discussion with Cassar, the letter to Novatsis & Alexander refers to Cassar “bidding against herself”. Apart from being wholly unprofessional it would have been the height of folly for Pendergast to make an offer capable of acceptance without instructions. I reject Cassar’s evidence on this point. In my view, the likely reason that Cassar denied she had given these instructions was because she did not want to be seen to have initiated settlement discussions of her own volition. To have done so would have undermined her position that she always wanted to proceed to trial to get a roof over her head.
Conference before the trial
The trial was fixed for hearing on 9 September 2008. On 2 September 2008, Cassar met Goldblatt and Pendergast at Goldblatt’s chambers. Cassar gave evidence that they had a short conference during which Goldblatt advised her about the protocol of court and to make sure she listened properly to questions in court. Cassar said, “He also asked me about getting some accommodation costs for my roof over my head.” According to Cassar, Pendergast said, “Don’t think you’re going to get something in Toorak” to which she replied, “I’ve got no intentions of getting anything in Toorak. I’m just after something that’s going to be safe and that will be able to be mine, a roof over my head”.
Pendergast gave evidence that during the conference they talked about how they were going to pitch the claim and they decided setting as an ambit the acquisition of a very modest dwelling in the country. Cassar was asked to look for real estate advertisements in country areas and to provide some examples of prices of modest dwellings that might be able to be put before the court at the trial. He agreed he may well have made a comment that Cassar should not expect to get something in Toorak to illustrate that it was a very small estate with eleven people involved, none of whom in his view would be excluded by the judge hearing the matter. There was also a discussion about the strengths and weaknesses of the case and running the case generally.
During this conference, Pendergast told Cassar that to have any prospect of buying a property, she was going to have to bridge the gap by taking out a loan and that if she had the capacity to work maybe she needed to do that to be able to service the loan.
Pendergast was asked about Cassar’s demeanour at the conference. He said she was a savvy, earnest and an unusual litigant. She was keen to get the matter to trial. Pendergast said that there was clearly no love lost between Cassar and her sister Rita and that he thought the best outcome for Cassar would have been an outcome where her sister was required to sell the house, even though this had nothing to do with the merits of her Part IV claim.
Goldblatt gave evidence that he took instructions on Cassar’s current financial position and her living circumstances. Cassar instructed Goldblatt that initially she had been living in her car, then she had moved to a caravan park, but was again living in her car. They discussed how the trial would run, court procedure and issues in relation to cross-examination and the possibility that the matter may still be capable of resolution by negotiation. They also discussed the issue of having to obtain leave out of time and the issue of seeking from the court a roof over Cassar’s head, somewhere for her to live. This was something that Goldblatt said he had mentioned in the first conference with Cassar, and it was a theme that was repeated in the conference before the trial in terms of getting evidence to put before the trial judge about the cost of a caravan, bungalow or one bedroom unit to indicate the level of the claim in the case. Goldblatt said it was a very small estate, not large enough to provide for a “nest egg” but the objective would be to seek to get a roof over Cassar’s head of a very modest kind. Goldblatt said Cassar spoke about something like a mobile caravan or mobile bungalow. Goldblatt’s file note records that there was also discussion about corrections to Cassar’s affidavit and a reference to the offer of $47,500 all in. Goldblatt expressed the view that Cassar had a keen hatred for her sister Rita and the way Rita had been treated over Cassar and that Cassar was determined and ready to proceed with the case.
On 5 September 2008 the estate prepared an affidavit as to its financial position which revealed an estate of $316,000 based on the current market value of the house, less unbilled legal costs of approximately $30,000 producing a net value of approximately $286,000.
Trial
In early September, Cassar was advised that the matter had been set down for Monday 8 September, one day earlier than expected. In light of the contentious nature of the meeting on the morning of the trial, I set out separately the version of events from each witness.
Cassar gave evidence that she attended Goldblatt’s chambers at about a quarter past eight in the morning. She sat with Pendergast in the reception area for a few minutes before going in to see Goldblatt. Cassar asked Pendergast if there were any further developments and he told her there had been a subpoena to Hicks Oakley Chessell Williams but he did not know what it was about.
In Goldblatt’s chambers, Goldblatt said, “It looks like the other side might be ready to settle”. He asked what she would be prepared to settle for. Goldblatt suggested $45,000 and there was a discussion to the effect that that would mean $15,000 to Cassar and $30,000 in costs. Cassar said, “Forget it, the matter is set for trial. I’ll proceed.” According to Cassar, Goldblatt was not happy because he “stormed off”, grabbed his wig and gown and said, “We’re supposed to be meeting counsel for the other side at court this morning.” Cassar said at that point she told him about her “suicide thoughts … and the way I was” and he said, “Well, you haven’t said this before.”
Goldblatt gave evidence that he had a conference with Cassar and Pendergast in Goldblatt’s chambers. During this conference, Goldblatt and Cassar again discussed the issue of needing to seek leave out of time, and the fact that there was a direct conflict between Cassar’s evidence and the evidence of her sister Rita. They discussed the fact that the last offer or the last indication of what the estate was prepared to settle for was $45,000 inclusive of costs. Goldblatt suggested to Cassar that they go to court about 10 to 15 minutes before the court starting time in case counsel for the estate wanted to have any discussions.
According to Goldblatt, Cassar’s demeanour on the morning of the trial was “fine”. He did not notice her being overly nervous. She said she had a very easy going attitude in relation to the case because the risk of a costs order had no significance to her since she said, “I don’t have anything”.
Cassar brought with her to court an advertisement from the current issue of the Trading Post with indicative costs of mobile or transportable homes, although Goldblatt thought this included one bedroom units because his notes referred to that. This indicative costs material was tendered at the commencement of the trial. Goldblatt said he had prepared closing submissions prior to the commencement of the trial which he intended to add to during the course of the trial.
Pendergast gave evidence that he drove to Melbourne from Warrnambool on the morning of 8 September 2008 and arrived at Goldblatt’s chambers at around 9.00 or 9.15am. Pendergast recalled Cassar was waiting in the lobby area at Goldblatt’s chambers when he arrived. He said they then had a short conference with Cassar. They went through how the trial would proceed. There was discussion about where the parties had got to at the mediation and to the effect that it could be a hard fought trial.
After the conference concluded, Pendergast and Goldblatt made their way over to the Court. There was a discussion about the trial judge. Cassar was told he was “fair” but “you will not get more than you are entitled to”.
When the matter was called on, the trial judge immediately expressed concern that there were two counsel for the estate, one for each executor, given that the estate was so small. His Honour indicated that the estate would not be bearing the full cost of double representation and that he would want to get the case over within one day.
Goldblatt then endeavoured to open the case. His Honour said that he had read the affidavits and that it was not necessary for counsel to make an opening. Goldblatt then called Cassar. After she had been sworn in, Goldblatt took her through some corrections to her affidavits which were then tendered. The extract from the Trading Post was then tendered. Before there was any cross-examination, subpoenas were called upon by Mr Sandbach of counsel who asked for the matter to be stood down to allow documents to be inspected.
Documents which had been produced on subpoena were inspected. There was some argument about privilege over one aspect of a solicitor’s file which had been produced for inspection. After these matters had been dealt with, Mr Sandbach requested the matter be stood down again, after indicating to Goldblatt that he wanted to have some discussions. The matter was stood down to enable those discussions to occur.
Negotiations
Cassar gave evidence that she then went outside with Pendergast and Goldblatt to the alleyway at the rear of the Supreme Court building where they discussed each offer. Cassar claims she said to Pendergast and Goldblatt on all the offers that she had challenged the will to try and get a roof over her head and the amounts offered were not going to give her that, that the case was set down for three days and she wanted to proceed and it would all be over in two or three days. Goldblatt said, “Just because you’re finished today doesn’t mean you’ll get judgment today, it could take any length of time.” Cassar said she could not recall the full amount of the offers but knew they were not much because she kept saying, “Well, it’s not going to provide me with a roof over my head.” Pendergast again said she could get a loan or a job. At some point in response to Cassar’s statement that it was not enough to put a roof over her head, Goldblatt replied “Well, it’s $35,000 more than what you had when you came this morning”. During the negotiations Pendergast again said she could get a loan or a job. Cassar said “he just kept going on and on” and that “No matter what I said it just fell on deaf ears.” Finally, an offer of $65,000 was made and which Cassar accepted.
Pendergast agreed that he and Cassar had spent a considerable period of time in the alleyway behind the Supreme Court during the negotiations. He gave evidence that Goldblatt joined him and Cassar there but that he disappeared from time to time to talk to the estate’s legal representatives, Mr McKenzie of counsel who acted on behalf of the first defendant John Cassar and Mr Sandbach of counsel who acted on behalf of the second defendant Rita Cassar. Pendergast was not involved in those discussions. Pendergast’s recollection was that the negotiations took place over approximately two hours. As to Cassar’s demeanour, Pendergast said there was nothing remarkable really. Pendergast said she was clearly a client who was not intimidated by the court process. From time to time Cassar disappeared and Pendergast believed she went to speak with her friend, Mr Haskins, who was in the precincts of the Court. Other than that, Cassar spent most of the time in the alleyway with Pendergast.
Pendergast was not able to recall precisely how many offers and counter offers passed between the parties. He said Goldblatt came and went several times. Pendergast said that when it was clear that there were going to be some settlement discussions he agreed that costs would be capped at $30,000 if a settlement was able to be negotiated. Pendergast recalled how cold it was in the alleyway and that they discussed the costs and then considered what Goldblatt had to say from time to time when he came back with offers. The pros and cons of offers were discussed and that was about the extent of his involvement. As to the suggestion that Cassar was subjected to pressure or duress from Pendergast, he said nothing could be further from the truth. There was no pressure forthcoming from him to settle the matter. He simply wanted to see Cassar get the best result. If a settlement could be negotiated within reasonable parameters, he said ”it is better generally to manage the outcome rather than put your fate in the hands of the judge.” As to the allegation that Cassar had said each time an offer came back that her response was to the effect, “I don’t know why you’re wasting my time with these figures. I’m looking to get a roof over my head”. Pendergast said if that occurred it certainly did not occur in his presence. He said that he and Goldblatt had never said to Cassar that she was going to get a roof over her head or that she would win the case and she would finish up in a house. It was not disputed that ultimately the figure agreed was $65,000 inclusive of legal costs with those costs capped at $30,000 with the result that $35,000 would go to Cassar. After the settlement figure had been agreed the matter came back on before the trial judge and the matter was adjourned. Cassar, Goldblatt and Pendergast made their way back to Goldblatt’s chambers for a short time and then on to Mr Sandbach’s chambers. Mr Haskins accompanied Cassar.
Goldblatt gave evidence that when negotiations commenced, Pendergast and Cassar went out to the laneway behind the Supreme Court building. Mr Sandbach, his client and his instructing solicitor remained inside the building. Goldblatt discovered during the course of the negotiations that there were in fact tripartite discussions taking place as there were negotiations between the other beneficiaries and the estate which resulted in an agreement to accelerate the benefit under the will to other beneficiaries.
Goldblatt said there were a number of offers and counter offers which ultimately ended in agreement from Cassar to resolve the matter for $65,000 inclusive of costs which had been capped at $30,000.
Goldblatt said Cassar was an intelligent, forthright person. He said offers were discussed with her, and he received instructions to make counter offers to Mr Sandbach and there were a number of offers that were made prior to the settlement being reached. According to Goldblatt, once Cassar had satisfied herself that she had obtained the best deal she instructed him to accept the offer. Goldblatt admitted there had been a discussion about how long it might take to get a judgment. However he denied that Cassar had said that she wanted to proceed with the trial, that she was there to get a roof over her head and the offers were not going to give her a roof over her head. Once agreement had been reached the parties went back into court with their counsel and informed the court that the matter had settled and that the parties would be entering into terms of settlement and preparing agreed orders. The court then adjourned. Counsel went back to their respective chambers to prepare terms of settlement and appropriate orders. Goldblatt asked Cassar to return to his chambers at around 2.00pm.
Terms of settlement
When Cassar returned to Goldblatt’s chambers she sat in the reception area. After some time Goldblatt handed her a copy of draft terms of settlement. Cassar said she was in the process of reading the draft when Goldblatt told her that there had been a computer breakdown and that they needed to go to Owen Dixon Chambers.
Cassar, together with her friend Mr Haskins then accompanied Goldblatt and Pendergast to Owen Dixon Chambers to Mr Sandbach’s chambers. Not long afterwards Mr McKenzie, the solicitor for the estate, joined them. A telephone link‑up was established with Maddens in Warrnambool to prepare draft terms of settlement. There were three or four versions of the draft terms.
During the process of preparation of the terms of settlement, Cassar waited in the corridor outside Mr Sandbach’s chambers. According to Cassar, the next time she saw counsel was around five o’clock when they came out with terms of settlement. Cassar denied she was given any prior opportunity to read the terms of settlement and that she signed and initialled amendments to the terms without reading the document. In essence, her explanation was that counsel were rushing back to court before the judge left for the day.
Cassar returned to court with counsel and Pendergast and was present in court when counsel addressed the trial judge to say the matter had been settled and when orders were made. At some point Cassar mentioned to Goldblatt about the caveat she had lodged against the family home and Goldblatt said Pendergast would attend to that.
According to Goldblatt, when drafts of the terms of settlement were prepared they were shown to Cassar and fully explained to her. She was given copies to read. Goldblatt said the terms were fairly straightforward but there was one aspect of them in particular which he recalled explaining to Cassar. In the first draft it was contemplated that the property at 12 Burbank Drive, Keon Park would be sold but a variation was made in the terms whereby Rita Cassar left open the option of providing the settlement sum within an agreed period of time. This was something Goldblatt discussed at length with Cassar. Goldblatt said she had assumed that the property was going to be sold and thought that she wanted the property to be sold. Cassar was somewhat concerned that it might not be sold and that the money in respect of the settlement would be paid without this occurring. Goldblatt said he went through the terms and each of the drafts of the terms with Cassar. He explained each of the terms and ensured they accorded with the agreement that was reached. He gave Cassar a copy of the terms to read and to satisfy herself that she was happy with them before she signed them. Minutes of Orders were also prepared.
After the terms of settlement were signed, Pendergast and Goldblatt together with Cassar returned to court at about 5.00pm to have the matter mentioned. Consent orders were then made in Cassar’s presence.
As to Cassar’s demeanour, at this time Pendergast said she was calm and relaxed. He formed the view that she was quite content that a reasonable outcome had been reached and her demeanour was consistent with someone who was reasonably pleased with the outcome. Pendergast said she certainly was not expressing any disappointment at the outcome.
According to Pendergast, while Cassar remained in the corridor outside Mr Sandbach’s chambers he moved between the corridor and Mr Sandbach’s chambers. Pendergast could not recall how many drafts were produced but thought at least two, possibly three. As the drafts were prepared, Pendergast read through them with Goldblatt. Pendergast could not recall specifically what changes were made but that there were various amendments made to give effect to what had been agreed. Ultimately the final document was produced. Pendergast believed it was also subject to some minor amendment which was then initialled by the parties. Pendergast did not think Cassar had much involvement in discussing the drafts because the essence of the deal had been concluded and agreed at court.
Pendergast and Goldblatt gave evidence that Cassar signed the document in their presence in the corridor outside Mr Sandbach’s chambers without the other barristers being present. There is great disparity over what happened next.
First Complaint
Cassar alleged that on the following day, 9 September 2008, she telephoned Pendergast. Cassar said she asked him about the three month delay until settlement and indicated that she was not pleased about the orders. According to Cassar, Pendergast did not wait for her to finish and said, “Well, you signed them. They are signed. They are signed, sealed and delivered.” That was the end of the conversation. This is denied by Pendergast and is dealt with below.
During October 2008, Cassar contacted Maddens enquiring whether settlement funds had been received. Pendergast did not speak to her on that occasion but remembers that Cassar was pressing Maddens to have the other side produce the settlement funds although it was clear from the terms of settlement that they were not due until January the following year.
Cassar again telephoned Maddens in November 2008 and asked about the settlement. She was made aware that settlement was to occur during the Christmas break. Pendergast told her not to worry and that if the settlement did not occur the matter could go back to court to claim interest and to enforce the orders.
On 19 November 2008, Pendergast had a further telephone discussion with Cassar during which she asked whether he had heard anything from the other side and Pendergast said that he had not. Cassar said she believed that the settlement sum was due to be paid on 8 January 2009. Pendergast was unable to confirm this as he did not have the file with him but assured Cassar that if the settlement occurred during office hours Maddens would attend to settlement of the matter and account to her for the funds as soon as practicable. During this discussion she raised the question of Maddens producing a bill for its costs. Pendergast said there was no complaint made about the settlement during this conversation.
When Pendergast was asked about Cassar’s evidence that on 9 September she had telephoned Pendergast and complained about the settlement, he denied that this conversation took place. He said that until 20 November 2008 he was of the view that he had a very happy client and that while it was a tough case, a proper outcome had been achieved.
Pendergast gave evidence that on 20 November 2008 he received a telephone message from Ms Faulkner to say that Cassar wanted to meet with him that day. Pendergast was attending a mediation so he asked Ms Faulkner to tell Cassar that he probably would not be free until about 4.30 that afternoon but that he would make himself available at Maddens’ Docklands office. After the mediation concluded Pendergast went to the office and no sooner than he arrived there, Cassar dialled into the office security system to indicate that she was there. When Cassar walked into the office, Pendergast stated he could feel “the electricity in the room”. Cassar’s voice had a guttural tone and the first thing she said was to the effect, “What happened? Something changed. You sold me down the drain. I want to know why you sold me down the drain”. Cassar repeated this assertion over and over and she also raised the question of Pendergast producing a bill of costs. Pendergast said it was extraordinary. He could tell there was something really amiss and he became agitated and his respiratory rate jumped up. He said it was clear to him that he and Maddens Lawyers were “under siege”, that Cassar was expressing extreme dissatisfaction with the way the case had been managed and that she was going to dispute Maddens’ costs. Pendergast denied the allegations and said in effect he could not believe that she was taking this position. Later in the discussion he asked whether Cassar’s friend David Haskins had put her up to making the complaint and Cassar said that he might have. He asked whether David Haskins was with her that day and Cassar said he might be. Pendergast also asked her whether she was taping the conversation.
Pendergast said he was so agitated he dictated a file note of the conversation in Cassar’s presence. The file note records in substance Cassar’s allegation that Pendergast and Goldblatt were not prepared to run the case for her as she wished and records allegations to the effect that she was put under pressure in relation to settlement of the case and that Maddens did not claim costs for her from the estate. The file note records that Pendergast took issue with Cassar and that during the course of the trial neither he or Goldblatt put any pressure on her to settle the matter, that she was given every opportunity to consider her position. The file note also records that Pendergast suggested to Cassar that she obtain independent legal advice and approach the Law Institute of Victoria or see an independent solicitor to obtain advice in relation to her rights.
Pendergast described the meeting as the most extraordinary meeting he had had with a client in all his years in legal practice.
Pendergast and Goldblatt’s rebuttal
Pendergast said the assertion that he put Cassar under duress at any stage throughout the proceeding was arrant nonsense. He categorically denied all Cassar’s allegations.
Goldblatt expressed the view that Cassar’s claim was settled very favourably. He said he thought she had a significant hurdle to overcome in relation to bringing the proceeding out of time and there was a real issue as to whether Cassar had ostracised herself from her father or vice versa. There was a very large factual dispute between Cassar and her sister which could have affected the outcome of the case.
In particular, Goldblatt denied allegations that he was in any way reluctant or failed to run the case to its conclusion on the merits. He said he was more than happy to run the case and felt a lot of sympathy for the plight in which Cassar found herself. He denied the allegation that he failed to obtain a costs order from the estate and on the basis that the settlement involved an all‑in figure and the estate was in fact paying her costs. He denied the allegation to the effect that he pressured or exerted force upon Cassar to accept the terms of settlement and the court orders. He said he exerted no pressure on Cassar at any time and that she was appraised at all times of his view in relation to her case and of the offers. He said Cassar is a very articulate and intelligent person and when she did not want to accept an offer or make a counter offer she told him in emphatic language and when she was happy to accept something she told him that as well. Goldblatt said he obtained instructions from Cassar and at no stage did he pressure her in any way.
Goldblatt also said that at no stage did Cassar suggest to him that she was emotionally troubled or had suicidal thoughts.
On about 28 November 2008, Maddens were advised by Novatsis & Alexander that Rita Cassar had decided not to sell the family home but to retain the property and pay out all her siblings’ entitlements including the $65,000 settlement sum. Maddens were asked to arrange for Cassar to sign the withdrawal of the caveat in readiness for exchange for the $65,000 bank cheque. There was an issue between Cassar and Pendergast about the preparation of the withdrawal of the caveat. In substance, Pendergast said Cassar was not prepared to instruct Maddens to prepare a withdrawal of caveat. Cassar advised Pendergast that she had prepared the document but refused to provide Pendergast with either the document itself or a copy so that Pendergast could satisfy himself that it was a conforming document which would be accepted by the estate’s solicitors and by the Titles Office. Cassar refused to do that but nevertheless insisted that Pendergast attend settlement. According to Pendergast, Cassar well understood that that would involve him travelling from Warrnambool to Melbourne and he explained to Cassar that he was not prepared to make that trip without being satisfied that Maddens were going to be producing a conforming document. Cassar instructed Pendergast that she did not want Maddens to do any more work for her in the matter.
By letter dated 10 December 2008, Novatsis & Alexander advised Maddens that the estate was ready to settle. According to Pendergast the relationship between Cassar and Maddens had unravelled to the point where settlement could not be organised. According to Pendergast, all that was required was for Cassar to provide him with an accurate copy of the executed withdrawal of caveat which he could then approve.
Cassar was concerned about Maddens not releasing settlement funds so on 24 December 2008 she wrote a letter to Maddens instructing them to inform the estate’s solicitors to have two separate bank cheques ready at settlement, one for $30,000 to be made payable to Maddens, and the other cheque for $35,000 to be made payable to her.
In early January 2009, Cassar prepared a summons “to give effect to the terms of settlement dated 8 September 2008” together with an affidavit in support because she realised that Novatsis & Alexander were closed for the holiday vacation and she wanted to immediately enforce the settlement terms. The affidavit was sworn but the summons was not filed because Pendergast advised her that settlement had not taken place because the estate’s solicitors were on holidays. Subsequently Pendergast rang Cassar to advise her that settlement was to take place at the offices of the solicitors for the estate in Reservoir.
On 8 January 2009, Cassar telephoned Pendergast and said she was phoning him from the front steps of the Supreme Court and she was about to issue a summons because settlement was due to take place on that day and it had not.
By a letter dated 9 January 2009, Maddens wrote to Cassar setting out her instructions to the effect that she required notification of the time and date of settlement and that she would attend, that Maddens were to inform the estate’s solicitors to supply two bank cheques at settlement, one for $30,000 payable to Maddens Solicitors and the other for $35,000 payable to Cassar, that Cassar would provide the requisite withdrawal of caveat at settlement and noting Cassar’s instructions that she would not entertain any further communications regarding instructions until settlement date. In that letter, Maddens note that Cassar continued to refuse to provide a copy of the withdrawal of caveat that she had prepared and expressed concern that if at settlement the document was not acceptable, settlement would have to be delayed. As events transpired, Cassar produced a withdrawal of caveat on 15 January 2009 to the estate’s solicitors which was unacceptable.
In mid-February 2009, settlement occurred at the offices of Novatsis & Alexander. Cassar attended settlement. Pendergast did not attend, nor did any representative from Maddens Lawyers. Cassar received a cheque for $35,000. A cheque for $30,000 for legal costs was subsequently forwarded to Maddens Lawyers.
Duress - relevant legal principles
The current law in Australia on duress is summarised in Crescendo Management Pty Ltd v Westpac Banking Corporation,[10] McHugh J said:
The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate.[11] … In my opinion the overbearing of the will theory of duress should be rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable conduct, however, will not necessarily constitute economic duress. [12] (emphasis
added)
[10](1988) 19 NSWLR 40.
[11]Ibid at 45-46, citing Lord Diplock in Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 384.
[12]Ibid at 45-46, approved and applied in McKay v National Australia Bank Ltd [1998] 4 VR 677 at 690 per Tadgell JA, Sholl Nicholson Pty v Chapman [2001] VSC 430 at [31] and Maher v Millennium Markets Pty Ltd [2004] VSC 174 at [125].
In the present case in my view the plaintiff failed to establish that the defendants applied illegitimate pressure, either at the mediation or on the day of the trial.
Mediation
I deal first with the mediation. Having regard to the concession made by Cassar during the trial that she had no criticism of Goldblatt prior to the morning of the trial it is probably unnecessary to consider Goldblatt’s conduct prior to that point. However, the allegations are serious and for completeness I do so.
In the statement of claim it is alleged that the plaintiff was under “severe duress by the defendants to accept” offers made at the mediation in March 2008. No particulars are given of the nature of the duress alleged.
In her evidence, Cassar said that during the mediation “the pressure started coming in” mainly from Pendergast. This application of pressure occurred, according to Cassar, when Pendergast suggested “maybe you can get a job – maybe you can get a loan”. This suggestion occurred during a break when one of the offers was being considered. Cassar said she had “tried” and became emotional at this point, telling Pendergast that she had even done a course and had done well but within a couple of months her mother had passed away and she fell into a heap.
Pendergast accepted that he had made reference to getting a job and taking out a loan. This was said in the context of the finite parameters of a very small estate. Pendergast said he told Cassar that the estate could not be converted into one of sufficient size to put a roof over Cassar’s head and that the only way she would be likely to have a roof over her head is if she got a job and took out a loan.
The only other reference to pressure at the mediation from Pendergast is in the following assertion:
“He was pressuring me – I was being pressured to accept if we didn’t get up out of time then they don’t get paid. I was made to feel guilty and greedy, that I was trying to seek something to try and get a roof over my head, that’s the pressure they put me under.”
The mediation commenced with a joint session with the parties then going to separate rooms while negotiations took place. Pendergast’s recollection was that there were approximately nine offers and counter‑offers with the defendants’ best offer being made at 2.20pm. The mediation did not go for an inordinately long time. Nor was it conducted in an over‑hasty fashion. Pendergast said that in his notes he recorded the times as the various offers were received and counter‑offers were made. He said there were intervals of time between each event and during those intervals of time there were various discussions with Cassar and there was time for her to consider her position, and that there was nothing unusual or untoward about the way the mediation proceeded. I accept Pendergast’s evidence on this point.
Cassar’s conduct during or after the mediation was not that of an aggrieved client. She did not complain to Goldblatt who she had found to be sympathetic, supportive and someone who listened to her plight. She did not complain to the mediator or to Pendergast. She did not cease to use the services of her legal advisers after the mediation. She did not write a letter of complaint to her legal advisers after the mediation. On the contrary, she telephoned Pendergast two days after the mediation and gave instructions to make a further offer in an attempt to settle the proceeding.
Furthermore, the objective facts speak for themselves. Cassar was not induced to accept any offer. If and to the extent that there was any pressure created in the environment of the mediation, Cassar clearly withstood it.
I am satisfied there is no substance to the claim that the plaintiff was subjected to duress by the defendants at the mediation.
Trial
I now deal with the day of the trial 8 September 2008.
In the statement of claim it is alleged that the plaintiff was under severe duress on the morning of the trial prior to its commencement to accept the sum of $45,000 inclusive of costs, under severe duress during negotiations following adjournment of the trial to accept $65,000 inclusive of costs and was pressured to agree to consent orders later in the day.[13]
[13]Statement of Claim paragraph 11A, Statement of Claim paragraph 11D, and Statement of Claim paragraph 17.
I do not accept Cassar’s version of events in Goldblatt’s chambers on the morning of the trial. Cassar asserted that Goldblatt said it looks like the other side might be ready to settle and suggested Cassar settle for $45,000. Goldblatt denied this. He agreed he may have asked her what she would be prepared to settle for and that the figure of $45,000 inclusive of costs was mentioned in the context of discussion about the last indication of what the estate was prepared to settle for. Pendergast’s evidence was consistent with Goldblatt’s evidence on this issue. Furthermore, Goldblatt gave evidence that he had had no discussions with the other side’s counsel in relation to negotiations and said he suggested to Cassar that they go to court about 10-15 minutes early in case counsel for the estate wanted to have any discussions. This tends to suggest that Goldblatt did not at that stage know that the other side might be ready to settle and therefore would not have been in a position to say so during the conference. Further, the transcript of proceedings before the trial judge reveals that it was not until after Cassar had given evidence by adopting her affidavits and after there had been an argument about privilege, that counsel for one of the executors requested the matter be stood down so that the parties could have some discussions.
Cassar never put to Goldblatt in cross examination that he was not happy because he “stormed off ”, grabbed his wig and gown and said they were supposed to be meeting counsel for the other side at court this morning. In fact, Cassar put to Goldblatt in cross examination that he picked up his wig and gown and said “we’ll go to the court, we’re supposed to be meeting Mr Sandbach”. This formulation does not even hint at duress or “pressure”. In any event Goldblatt denied that he had said this to Cassar. Likewise he denied that Cassar had told him about suicidal thoughts and the response attributed to him “Well, you haven’t said this before”.
Cassar’s version of what occurred is at odds with Pendergast’s and Goldblatt’s versions which were given independently, and whilst not the same, are consistent with each other. Cassar relied on a reference in Pendergast’s file notes to the effect that the defendants confirmed the last offer made at mediation in support of her account of the discussions in Goldblatt’s chambers. Pendergast thought this referred to an offer confirmed at court before the trial judge commenced to hear the case. This is likely to be so as the next entry in the file note is “Concetta Cassar called”.
In the circumstances I prefer Pendergast’s and Goldblatt’s version of events. Even if this were not so and had I accepted Cassar’s version of what was said in Goldblatt’s chambers, the alleged content fails to establish that Cassar was under duress or pressure to settle from either Goldblatt or Pendergast on the morning of the trial prior to its commencement.
Negotiations on 8 September 2008
I turn now to consider whether Cassar was placed under severe duress during negotiations after the matter had been stood down. The thrust of Cassar’s evidence was that she rejected all offers with the same response, namely that the amount offered would not put a roof over her head and that she wanted to proceed. Goldblatt agreed he may well have made the statement that, “It’s $35,000 more than you had when you came this morning”. Pendergast agreed he may well have again suggested she could get a loan or a job as it was something he believed to be the case. Cassar said he just kept going on and on without giving any content to what “going on and on” meant. She summarised it by asserting “no matter what I said it just fell on deaf ears”. Finally, and reluctantly, Cassar admitted that she accepted the offer of $65,000.
Pendergast and Goldblatt both denied that Cassar responded to offers by saying that the amount would not put a roof over her head. Both gave evidence to the effect that each offer was discussed and considered and instructions were then given by her to make counter-offers. Goldblatt said once Cassar had satisfied herself that she had obtained the best deal she instructed Goldblatt to accept the offer. As to the suggestion that Cassar was subjected to pressure or duress to settle the matter, Pendergast said nothing could be further from the truth. Likewise, Goldblatt said he exerted no pressure on Cassar at any time and that she was appraised at all times of his view in relation to her case and of the offers. He said Cassar is a very articulate and intelligent person and when she did not want to accept an offer or make a counter-offer she told him in emphatic language and when she was happy to accept something she told him that as well.
I accept the evidence of Pendergast and Goldblatt. It is likely that Cassar suffered a certain amount of stress, including some emotional stress in the course of negotiations to settle the proceeding. Negotiations in the context of resolution of court proceedings can be very stressful. However, Cassar’s evidence fell a long way short of establishing that either Pendergast or Goldblatt separately or together applied pressure, let alone illegitimate pressure, to induce her to accept the offer of $65,000 inclusive of costs.
Consent Orders and Terms of Settlement
Finally on the subject of duress I deal with the allegations relating to the consent orders. In the statement of claim it is alleged against Pendergast that no solicitor exercising all due professional care, skill and diligence would have “advised (pressured) the plaintiff to enter into the orders … “.[14]
[14]Statement of Claim paragraph 17.
There is no substance to this complaint. The orders made by consent to the effect that provision be made out of the estate of the deceased to his daughter Concetta Cassar in the sum of $65,000, merely reflect the agreement reached in the terms of settlement.
However there were serious allegations made with respect to execution of the terms of settlement. In substance Cassar alleged that she was given no opportunity to read either draft or final terms of settlement and that she signed the terms and initialled handwritten amendments with the barristers and Pendergast standing over her. Goldblatt and Pendergast each denied this. Goldblatt’s recollection was that when drafts of the terms of settlement were prepared they were shown to Cassar and fully explained to her. Goldblatt specifically remembered discussing and explaining to Cassar the changes between the first draft which contemplated that the family home would be sold being varied in later drafts to allow Rita the option of providing a settlement sum within an agreed period of time. Goldblatt said he discussed this at length with Cassar and that he explained each of the terms and ensured they accorded with the agreement that was reached. He said he gave Cassar a copy of the terms to read and to satisfy herself that she was happy with them before she signed them.
Pendergast’s recollection was not as clear as Goldblatt’s. He did not think Cassar had much involvement in discussing the drafts although the drafts were the subject of some discussion in the corridor with Cassar. Although there was a different emphasis between Goldblatt and Pendergast in relation to the drafts, Pendergast and Goldblatt were very clear and consistent in their evidence as to discussion about the final draft. Pendergast recalled Goldblatt leading the discussion in the corridor as to what was in the terms of settlement. Pendergast said Goldblatt explained the whole of the terms of settlement to Cassar. As to the allegation that the terms of settlement were not explained to her, Pendergast said “that is categorically not the case. I cannot be any more direct in rejecting those suggestions”. Under cross‑examination Pendergast was pressed further as to his memory and he said “Well my memory is he (Goldblatt) took you through the document, it’s not a particularly long document, and explained to you the effect of the document, how it would play out and give effect to your position and … that that was the end of your claim on the estate”. Later Pendergast described Cassar’s allegations in relation to signing the terms of settlement without explanation or an opportunity to read the document as “an absurd suggestion and it didn’t happen”.
I am satisfied that Cassar had an opportunity to read draft terms of settlement. Under cross‑examination she admitted that one draft had her handwritten notations on it. She was unable to explain why this was so. I am also satisfied that Cassar had an opportunity to read the final draft of the terms of settlement and that the terms were explained to her before she signed and initialled the document. Whilst the other barristers may have been in the general vicinity I reject the suggestion that counsel for the other parties stood over Cassar in the overbearing sense that she portrayed. In my view, in addition to the evidence to the contrary, it is far more likely that opposing counsel would keep their distance while terms of settlement were explained by counsel to their client.
I find that Cassar was entirely lacking in credibility on this issue.
Time of first complaint
I also reject Cassar’s assertion that she complained to Pendergast about the terms of settlement on 9 September 2008 the day following the making of the Court orders.
It is common ground that Cassar made two telephone calls to Maddens after 8 September 2009, one in October 2008 when she spoke to Ms Faulkner following up on whether there had been anything from the estate and again on 19 November 2008. Cassar did not complain about the settlement in either of these conversations.
In my view, Cassar’s first complaint made about the settlement occurred during the meeting with Pendergast on 20 November 2008. From his demeanour in the witness box it was evident to me that Pendergast was indeed re‑living an extraordinary meeting. His graphic account of what occurred leaves me in no doubt that he was totally surprised at the complaint. Furthermore, there is no reference to an earlier complaint in the file note Pendergast dictated in Cassar’s presence. Had there been an earlier complaint, in my view it is highly likely that Pendergast would have made a detailed file note and would have suggested at an earlier time that Cassar seek independent legal advice.
Failure to take instructions about contradictory material
Cassar’s allegation that the defendants failed to take instructions from the plaintiff about contradictory material is baseless. When Rita Cassar’s affidavit was filed instructions were sought from the plaintiff and an extensive handwritten narrative was received containing those instructions. An affidavit in reply was subsequently prepared and sworn.
Failure to seek a court order for costs to be paid out of the estate
Cassar alleges that the defendants failed to seek a court order for costs to be paid out of the estate. It seemed to be based on the proposition that as executors’ costs were paid out of the estate so her costs should have been paid out of the estate. However Cassar’s legal costs were paid out of the estate. The court order made provision for the plaintiff out of the estate of Mr Cassar of the sum of $65,000 which was the agreed settlement sum inclusive of legal costs.
Failure to seek costs of mediation
The claim that the first and second defendants failed to seek costs of the mediation is derived from a reference in correspondence between Maddens and Novatsis & Alexander of 2 April 2008. In that letter sent on 19 March 2008 prior to the mediation, Maddens had requested confirmation that both executors (Rita and John) had been informed of the mediation and would attend. As events transpired only Rita attended the mediation. In its letter Maddens proposed making application for the plaintiff’s costs thrown away in respect of the mediation against Rita personally and/or the estate.
In my view it was sensible that no application was made to seek such costs thrown away. As events transpired at that time, Novatsis & Alexander did not act for the co‑executor John Cassar who obtained separate representation through the firm Fisher McCrae Solicitors. In these circumstances it is apparent that Novatsis & Alexander could not be held accountable with respect to the conduct of John Cassar and any application for costs thrown away would have been unsuccessful.
Leaving Cassar to attend to finalising settlement
After 20 November 2008 Pendergast said that the relationship between himself and Cassar disintegrated. Cassar instructed Pendergast that she did not want Maddens to do any more work for her in the matter and in particular was not prepared to instruct Maddens to prepare a withdrawal of caveat which was necessary before the matter could settle. Maddens wrote to Cassar requesting a copy of the Withdrawal of Caveat so that it could be handed to the estate’s solicitors in exchange for the settlement sum. Cassar informed Pendergast that she had prepared the document but refused to provide him with a copy or to allow him to sight the original so that he could satisfy himself that it was a conforming document and would be accepted by the estate’s solicitors and by the Titles Office. Pendergast told Cassar he wasn’t prepared to make the trip from Warrnambool to Melbourne to attend settlement without being satisfied that a conforming document would be produced at settlement. Pendergast said all it required was for Cassar to provide him with an accurate copy of the executed withdrawal of caveat which he could then approve. He was happy for Cassar to attend settlement and hand the document over. In the circumstances I do not think Pendergast’s conduct was unreasonable. Pendergast was subsequently informed by Mr Alexander of Novatsis & Alexander that Mr Alexander prepared the Withdrawal of Caveat. Cassar attended settlement and received the cheques.
Failure to proceed to trial for fear of not getting costs on a Supreme Court scale
In the statement of claim Cassar alleges that Pendergast put his interests before the interests of his client when he failed to proceed to trial for fear of not getting costs on the Supreme Court scale.[15] The allegation is not particularised. In my view it is a scurrilous assertion which has not been substantiated. First the matter did proceed to trial. Counsel for Cassar sought to open the case and Cassar’s evidence was given by the tendering of her affidavits. Accordingly there is no substance in fact to the allegation. Moreover the objective facts show that Pendergast had briefed competent and experienced counsel who was ready to proceed and did proceed with the hearing of the case. Pendergast was present to instruct at the trial and counsel was clearly well equipped to run the matter to its conclusion having prepared draft final submissions. The trial judge expressed consternation that the executors were separately represented, in view of the small size of the estate and suggested it was a case in which costs would be limited to whatever the lowest possible scale was in the County Court.
[15]Statement of Claim paragraph 19A.
It does not follow that Pendergast thereafter failed to proceed for fear of not getting costs on the Supreme Court scale. Counsel for the executor initiated settlement discussions. Further, Cassar said nothing about this in her evidence-in-chief, nor did she cross‑examine Pendergast on the issue. There is no substance in this claim.
Other claims
Finally, there are unparticularised allegations that the defendants should have known of a judgment of the trial judge decided in 2007 and of Cassar’s emotional feelings.
Knowledge of Peterson v Micevski
I deal with the former point first. It emerged at trial that the decision relied on was Peterson v Micevski.[16] There is little utility in seeking to compare the very different factual circumstances in that case with the factual circumstances in Cassar’s Part IV case. That said, to the extent that there are some parallels, they do not assist the plaintiff. In Peterson’s case the estate was also very small and the beneficiary under the will which was challenged resided in a home being substantially the only asset of the estate. To make substantial provision for the applicant would have meant that the home would need to have been sold. In Peterson v Micevski Hansen J held that the testator was not precluded from leaving her estate as she did in her will and decided that no provision should be made for the applicant in that case. The proceeding was dismissed. Possibly, Cassar realised that reliance on Peterson v Micevski would not assist her as she made no submissions in relation to this point in her final address.
[16][2007] VSC 280.
Knowledge of Cassar’s “emotional feelings”
In the statement of claim it is alleged that the defendant should have known or have been aware of Cassar’s emotional feelings at the time. During the trial, “emotional feelings” were elaborated upon by assertions that Cassar had a post-traumatic stress disorder and suffered from depression. She pointed to car accidents she had had in the 1990s and that in 1992 she had been advised by a psychologist that she was in no state to go travelling. Cassar pointed to the fact that she was admitted to the Melbourne Clinic in 1994 in connection with two motor car accidents she had had in 1994. Cassar alleged that when she first telephoned Maddens in April 2007, she left a message with Ms Faulkner mentioning that she suffered from depression and post-traumatic stress disorder when she first telephoned Maddens in April 2007 and left a message with Ms Faulkner.
However, she failed to adduce any medical evidence at trial to substantiate her assertions about depression, emotional upset or post-traumatic stress disorder. In final address Cassar was unable to say how her emotional state or the stress or her mental condition impacted upon any of the issues in the proceeding. There was no case put at trial to suggest that Cassar was especially vulnerable to pressure or duress because of any then current pre-existing medical condition.
Summary
In all the circumstances the plaintiff has failed to establish that the defendants are liable in respect of any of her claims.
Immunity from liability
Goldblatt and Pendergast each rely as a complete defence to the claims made against them for breach of retainer, negligence and breach of fiduciary duty on the advocate’s immunity from suit recognised by the High Court in Giannarelli v Wraith[17] and D’Orta-Ekenaike v Victoria Legal Aid.[18]
[17](1988) 165 CLR 543.
[18](2005) 223 CLR 1.
As liability has not been established it is not necessary to address this issue.
Observations
Finally I make some observations about Cassar’s Part IV proceeding and the settlement procured on the day of the trial.
Pendergast and Goldblatt said in effect that the matter was settled on favourable terms. I agree with that assessment. Cassar was estranged from her family. She had no communication with them. She had not spoken to her brother John the co‑executor since 2003. He did not, for example, have her telephone number. She was not on speaking terms with her sister, Rita. She agreed that her relationship with her sister Rita was “non‑existent”. She was unaware of the death of her father until six months after the event. She did not attend the funeral of either of her parents. None of her brothers and sisters stepped forward to support her Part IV application. Her sister Rita had remained in the family home and had given support and care to her father over many years. It is therefore not surprising that her father bequeathed Rita a life interest in the family home. He treated all his other children equally. Whilst Cassar was not disqualified from consideration by any conduct, her claim was never going to be strong. Proceeding to a conclusion at trial was always going to be a hazardous exercise. There was a significant factual conflict on the material between the plaintiff and Rita and one or other of them may have been disbelieved.
Furthermore, the trial judge signalled to all parties his concern not only about the size of the estate but about the size of the claim. His Honour suggested at one point that costs might be awarded on the lowest County Court scale which in 2008 applied to claims of $7,500 or less.[19] That is not to say the trial judge had reached any concluded view on any relevant issue. However he had read the affidavits and the reference to the lowest scale of costs on the County Court scale indicated in the broadest sense, what must have been obvious to all concerned, that the claim, if it succeeded at all, would be of a small order of magnitude. In the final result , the settlement amount of $65,000 inclusive of costs negotiated between the parties was an outcome achieved because Cassar’s other siblings (excluding Rita) each agreed to take an accelerated benefit of a discounted amount, namely, $5,555. By comparison the amount of the accelerated benefit to Cassar of $35,000 is relatively substantial. The outcome of this very difficult case was in my view not unreasonable or unjust.
[19]County Court Civil Procedure Rules 2008 Appendix A.
Orders
Having regard to the foregoing matters the plaintiff’s claims will be dismissed. I will hear counsel and Ms Cassar on the question of costs.
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CERTIFICATE
I certify that the 42 preceding pages are a true copy of the reasons for Judgment of Almond J of the Supreme Court of Victoria delivered on 10 December 2010.
DATED this 10 day of December 2010.
Associate
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