Coombes v Ward
[2004] VSCA 51
•7 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1300 of 2001
| LARISSA COOMBES (as representative of the estate of the late J.J. COOMBES) |
| Appellant |
| v. |
| SANDRA JOY WARD (executrix of will of the late MAY ROBERTS) |
| Respondent |
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JUDGES: | WINNEKE, P., CHERNOV, J.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 March 2004 | |
DATE OF JUDGMENT: | 4 March 2004 | |
| REASONS FOR JUDGMENT: MEDIUM NEUTRAL CITATION: | 7 April 2004 [2004] VSCA 51 | |
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Testators family maintenance – Applicant adopted out by testator when aged four and aged 72 at time of application – Whether testator had responsibility to make provision – S.91 Administration and Probate Act 1958 discussed.
Testators family maintenance – Costs of appeal – Modest estate – Whether appeal frivolous and vexatious – Appellant dying before hearing of appeal – Costs ordered to be paid by appellant’s estate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. W.F. Gillies | Trivett Keating |
For the Respondent | Mr. V. A. Tallarida | Prior and Prior |
WINNEKE, P.:
At the conclusion of the hearing of argument on the part of the appellant on Thursday 4 March 2004, the Court indicated that it did not wish to hear counsel for the respondent; further indicated that it proposed to dismiss the appeal and would give its reasons at a time to be notified. Thereafter, and on the basis of its pronouncements, the Court heard the parties on the question of costs. I have read the judgments of the other members of the Court outlining their reasons why the Court dismissed the appeal. I agree generally with those reasons, but desire to add some comments of my own.
The appeal came from a decision of the Trial Division (McDonald, J.) upon an application by the late J.J. Coombes (“the applicant”) for further provision out of his natural mother’s (“the deceased’s”) estate. The application was considered pursuant to the re-drafted provisions of Part IV of the Administration and Probate Act 1958 which were introduced into the law of this State by Act No. 88 of 1997 (Wills Act 1997). Those provisions were calculated to broaden the scope of potential applicants for further provision out of deceased estates. Hitherto, the applicants had been restricted to “widows, widowers and children” of the deceased testator or testatrix. When the Attorney-General introduced the new provisions into the Legislative Assembly on 9 October 1997, she said (in her Second Reading speech) of the old provisions that they:
“are quite restrictive, excluding the ability of other persons, who may have a moral claim on the deceased estate, from making a claim.” (my emphasis)
Hence, the substituted provisions, contained in s.91 of the Administration and Probate Act now provide that the Court:
“may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.” (my emphasis)
In determining whether or not the deceased “had responsibility to make provision for a person” the Court is enjoined to have regard to a variety of factors and circumstances which are contained in sub-paragraphs (e) to (p) inclusive in s.91(4) of the Act.
Thus, it can be seen that the classes of applicants for further provision have been extended to those “for whom the deceased had responsibility to make provision”; a somewhat open-ended test. The legislation appears to have been a re-action to this Court’s decision in Popple v. Rowe[1], where it was decided that under the “old provisions” of Part IV, step-children were excluded from applying for further provision from the estate of the step-parent. Be that as it may, it is nevertheless clear that an order by the Court for further provision under s.91 now requires the Court to first determine whether the applicant is a person “for whom the deceased had responsibility to make provision”.
[1][1998] 1 V.R. 651 (judgment given 12 March 1997).
We were informed that, although these provisions have been invoked before, and considered by, judges of the Trial Division, this was the first occasion upon which they have fallen to be considered by this Court. If that it so, I must observe that this appeal is a most inapt vehicle for such consideration. The applicant was the natural son of the deceased. He never knew his father. He was born in 1929 and, at the time of his application, he was 72. He had been “adopted out” by the deceased (then an unmarried girl) at the age of 4. He was brought up by his adoptive parents. The respondent executrix was the only child of the deceased’s subsequent, and only, marriage. The sole asset of the deceased’s estate was the family home in Bentleigh which at the time of the application was valued at $370,000. The respondent was the sole beneficiary under her mother’s will. For nearly 20 years before her mother’s death, she had lived with and cared for her mother. In doing so, she had expended much of her income in improving the house in Bentleigh in which they had lived. Shortly after the application was decided, unfavourably to the applicant, he died. His widow (the appellant) was appointed by order of this Court on 5 September 2003 to represent his estate. It was conceded on the hearing by the appellant’s counsel that, if the application for further provision survived for the benefit of the deceased applicant’s estate (as to which we were referred to Re Shannon[2]), such further provision could only be ordered for the period between the date of the application and the date of the applicant’s death. In those circumstances it was accepted that the further provision could amount to no more than a sum in the range of $10,000 to $30,000. It takes little imagination to understand that the costs of litigating to recover such a sum will be out of proportion to the size of the estate.
[2][1935] 35 S.R. (N.S.W.) 516.
The underlying point of this appeal was the assertion on behalf of the appellant that the trial judge was wrong in concluding that the deceased did not have a responsibility to make provision for the applicant out of her estate. It was put that the error which vitiated this finding was to be found in paragraph [62] of his Honour’s judgment which, so it was contended, demonstrated that his Honour regarded the appropriate test, in determining this issue under the new s.91, to be whether the deceased, as a wise and just testator, had a moral duty to make provision in her Will for the maintenance and support of the deceased applicant. This had led his Honour, so it was contended, to give undue weight to some, and insufficient weight to other, of the matters contained in sub-paragraphs (e) to (p) of s.91(4) of the Act. His Honour, it was submitted, had led himself into error and had “poisoned the well” of his judgment by resorting to the fiction of the “wise and just testator” having a “moral duty”; and thereby had failed to give proper effect to the provisions of the legislation which ought to have been paramount in his consideration.
In the impugned passage of his judgment at [62] his Honour – having referred to the fact that the “threshold question” was whether it had been established that the deceased testatrix had a “responsibility” to make provision for the proper maintenance and support of the applicant - referred to the conclusion of this Court in Grey v. Harrison[3] to the effect that the criteria to be applied under the former provisions of the Act was what a wise and just testator would consider to be his or her moral duty. His Honour went on:
“Having regard to the speech of the Attorney-General on the second reading of the Bill to amend s.91 of the Administration and Probate Act and her reference specifically to the amendment which would enable a ‘wider category of persons’ to make … applications such as the present to include those who have a ‘moral claim on the deceased’s estate’, I am of the view that when assessing whether the deceased had ‘responsibility’ to make provision for the proper maintenance and support for the plaintiff out of her estate, the question to be addressed, is whether in all the circumstances as a wise and just testator, did the deceased have a moral duty to make provision by her will for the proper maintenance and support of the plaintiff out of her estate.”
[3][1997] 2 V.R. 359.
I do not regard his Honour’s comments in this passage as erroneous or as “poisoning the well” of his judgment. His Honour was doing no more than stating his view that the intention of the legislature, in introducing the provisions of s.91(4)(e) to (p), was to isolate, as persons for whom the deceased had a responsibility to make provision out of his or her estate, those to whom the deceased had a moral duty to provide. That view was consonant with the Attorney-General’s speech in introducing the new legislation; and it is difficult to perceive what other “responsibility” could justify the casting of the “legislative net” so wide. It is also a view which accords with the interpretation given to the “Testator’s Family Maintenance” legislation in this State[4]. Adherence to the various facts and circumstances which s.91(4) sets out would, and seems to me to be calculated to, achieve those objectives. In my view, the judge was not in error in perceiving the proper test or the intent of the legislature in imposing it. Immediately after he referred to the Attorney-General’s second reading speech, he set out in full the text of s.91(4); and then proceeded to make factual findings with respect to the matters referred to in the various sub-paragraphs of the sub-section, to which he was obliged to have regard in determining whether the applicant was a person for whom the deceased had a responsibility to provide. Although it has been the nub of the submission of counsel that his Honour had given too much weight to some of those factors, and too little to others, I can see nothing in his Honour’s remarks which suggests to me that he gave other than appropriate weight to the factors which he was constrained by the sub-section to consider. His Honour’s reasons were careful and full and, contrary to the submission of counsel for the appellant, paid close attention to the matters contained in sub-paragraphs (e) to (p) of s.91(4). Although counsel submitted that his Honour’s reasons failed to pay due regard to benefits already given to the respondent, and failed to give sufficient weight to the financial resources and ill health of the applicant, there is nothing in his Honour’s judgment which, in my opinion, provides a basis for this submission. Certainly there is nothing in the closely reasoned judgment which can possibly support the submission (which was, in essence, the thrust of the appellant’s argument) that his Honour had effectively jettisoned the provisions of the Act in favour of an alternative line of inquiry into the testator’s moral duty. His consideration of the evidence with reference to the provisions of s.91(4) necessarily produced an outcome in conformity with the legislative design to benefit those applicants in respect of whom the testator had a “moral” responsibility to provide out of the estate. His Honour’s approach appears to be that adopted by other Trial Division judges in this State[5] . In my view, the trial judges are correct. None the less, I think Chernov, J.A. is correct to doubt whether, in the light of the exhaustive list of criteria to which the Court is now required to have regard in determining the threshold question, it is either necessary or helpful to refer to the deceased’s moral duty.
[4]cf. Grey v. Harrison, supra, at 361, per Tadgell, J.A.; at 365-6 per Callaway, J.A.
[5]cf. In the Estate of Shaw [2003] VSC 318 (2 September 2003) per Dodds-Streeton, J. at paragraphs [38] ff.; Lee v. Hearn [2002] VSC 208 (31 May 2002) per Warren, J.; Sherlock v. Guest [1999] VSC 431 (12 November 1999) per Beach, J.
On any view of the evidence, it seems to me that the trial judge was correct to conclude that the deceased had no responsibility to make provision for the deceased applicant out of her estate. So obviously correct was his Honour’s conclusion that I joined with the other members of the Court in dismissing the appeal without the need to call upon counsel for the respondent. The question now arises as to who should pay the costs of the appeal. Counsel for the appellant submits that his client should have her costs paid out of the estate. Counsel for the respondent submits that the appeal had no prospects of success and that it would be unfair to further burden the estate (small as it is) with the costs of the appeal. He contends that the respondent’s costs of the appeal should be taxed on a solicitor and client basis and paid by the estate of the deceased applicant. In my view the submission of the respondent’s counsel should be accepted, with limitation on amount. I would order that the costs and expenses of the respondent of and incidental to the appeal, including reserved costs (if any), be taxed, on a party and party basis, and paid by the appellant, as representative of the deceased applicant’s estate.
CHERNOV, J.A.:
On 4 March 2004, shortly after conclusion of the submissions made for the appellants, and without calling on the respondent, the Court pronounced orders dismissing the appeal and said it would give its reasons for so doing later. I now set out briefly my reasons for participating in that decision. They are essentially the same as those of the other members of the Court, whose draft reasons for judgment I have had the benefit of reading.
The essential question raised on the appeal was whether, in coming to the conclusion to dismiss the plaintiff’s claim because it failed the threshold test, his Honour failed to have due regard to the criteria set out in the new provisions of s.91 of the Administration and Probate Act 1958 that were introduced by the Wills Act 1997. Two principal errors were made, it was said. One was that his Honour wrongly determined whether the deceased had a responsibility to make provision for the late plaintiff out of her estate by reference to whether she had a moral duty to maintain and support him rather than by reference solely to the statutory criteria. The second error, it was claimed, was that his Honour gave undue weight to a number of factors in determining the threshold question.
It is plain from his Honour’s reasons that he posed the correct threshold question, namely, whether the testatrix had a responsibility to make provision for the proper maintenance and support of the plaintiff and, in the end, the contrary was
not pressed by the appellants’ counsel. His Honour then turned to consider the meaning of the word “responsibility” in s.91(1). In that context, he analysed its dictionary meaning and noted that this Court, in Grey v. Harrison,[6] decided not to follow the dicta of the High Court in Singer v Berghouse[7] to the effect that reference to “moral duty” or “moral obligation” in resolving claims under the former s.91 may well be regarded as an unwarranted gloss on the statutory language. His Honour also made reference to the Second Reading Speech of the Attorney General in relation to the amendment of s.91, the relevant terms of which are set out in the reasons of the learned President in this case. In that context, his Honour concluded that “when assessing whether the deceased had ‘responsibility’ to make provision for the proper maintenance and support for the plaintiff out of her estate the question to be addressed, is whether in all the circumstances as a wise and just testator, did the deceased have a moral duty to make provision by her will for the proper maintenance and support of the plaintiff out of her estate?”.
[6][1997] 2 V.R.359 at 360-361 per Tadgell, J.A. and at 365 per Callaway, J.A.
[7](1994) 181 C.L.R. 201 at 209 per Mason, C.J., Deane and McHugh, JJ.
It was essentially on the basis of that passage in his Honour’s reasons that the appellant contended that the learned judge impermissibly injected into the criteria for determining the threshold question, a factor that went beyond what is set out exhaustively in the new s.91(4). I agree with the other members of the Court that no such error was made by his Honour. First, I consider that, on a plain reading of sub-s.(1), “responsibility”, as used in that provision, connotes essentially a moral responsibility. If there was a legal obligation to make provision for the applicant out of the estate by reason of, say, a contract that had been entered into by the deceased, the enforcement of it would be the subject of separate proceedings. It is plain that sub-s.(1) is not speaking of such a right but rather, of a responsibility that has a moral basis. Secondly, what this Court said in Grey v. Harrison about the utility and correctness of characterising the obligation of the deceased to make adequate provision for the proper support and maintenance of the claimant under the former s.91 of the Act generally applies as much to the new provision as it did to the former s.91. The approach set out in that case has been followed in a number of decisions of the Trial Division[8] and I see nothing wrong in principle in continuing to do so provided, in the context of determining the threshold question, it is made clear that the reference to the moral duty of the deceased is confined to it being a compendious description of the criteria set out in s.91(4)(e) – (p). Having said that, however, I doubt whether, in light of the exhaustive list of statutory criteria to which the Court must now have regard when determining the threshold question, it is necessary, or helpful, for a primary judge to refer to the deceased’s moral duty in respect of the disposition of the estate. Such a factor obviously cannot be a substitute for the criteria prescribed by the legislation and a reference to it might only serve to give unnecessary encouragement to the fertile mind that is desperate to find any basis on which to appeal the decision.
[8]Richard v. AXA Trustees Ltd. [2000] V.S.C. 341 per Eames, J.; Valbe v. Irlicht [2001] V.S.C. 53 per Gillard, J.; Marshall v. Spillane [2001] V.S.C. 371 per Byrne, J.; Lee v. Hearn [2002] V.S.C. 208 per Warren, J.; Shmidt v. Watkins [2002] V.S.C. 273 per Harper, J.; Blair v. Blair [2002] V.S.C. 95 per Harper, J.; and MacEwan v. Shaw [2003] V.S.C. 318 per Dodds-Streeton, J.
Next, and importantly for present purposes, it is plain that, on a fair reading of his Honour’s comprehensive reasons, the basis on which he resolved the threshold question was the criteria referred to in s.91(4)(e) – (p) and no other. His Honour carefully examined the evidence by reference only to each such criterion and concluded accordingly. Read in context, his Honour’s reference to the deceased’s “moral” duty was no more than a compendious description by him of the statutory criteria to which, as I have said, he had regard when resolving the issue under sub-s.(1). Hence, this attack on his Honour’s decision must fail.
I also consider that, for the reasons given by their Honours, there is no basis for the second criticism of his Honour’s decision, namely, that he gave undue weight to a number of matters to which he had regard for the purpose of resolving the threshold question. In my view, it was well open to his Honour to conclude on the evidence that the testatrix did not have the responsibility to make provision for the proper maintenance and support of the plaintiff.
Thus, the appellants have failed to demonstrate that the learned judge erred in determining that the plaintiff has not made out the threshold issue, namely, that the testatrix had the responsibility to make provision for him out of her estate. I now turn to the question of costs. Regrettably, this case is an example of the growing number of cases in respect of which it can be confidently said that it should have been plain to the appellants’ legal advisers that the prospects of success in the appeal were hopeless. It should also have been apparent that if the costs of the appeal had to be paid out of the estate that would materially diminish its value, very much to the detriment of the beneficiary. In those circumstances, I consider that there is some force in the respondent’s submission that her costs should be paid by the appellants on a solicitor/client basis. But, given the unfortunate circumstances of this case, I agree with the other members of the Court that Mrs. Coombes, as representative of the late plaintiff’s estate, should pay the respondent’s costs on a party/party basis.
BONGIORNO, A.J.A.:
On 4 March 2004 the Court dismissed an appeal in this case by Larissa Luana Coombes against a judgment of McDonald J of 21 March 2002. By that judgment His Honour dismissed a claim by the plaintiff’s deceased husband, John Joseph Coombes, pursuant to Part IV of the Administration and Probate Act 1958 for provision to be made for him out of the estate of his biological mother May Roberts who died on 8 June 2000. At the time it dismissed the appeal the Court stated that it would give its reasons for doing so and make appropriate orders for costs in due course.
John Joseph Coombes was born on 18 July 1929. His mother, the deceased, May Roberts, was unmarried at the time of his birth and he never knew his father whose name was John McDonald. Mr Coombes contracted infantile paralysis at about the age of two and spent a long time in the Yooralla Childrens’ Home. At about the age of four he was legally adopted by Joseph William Alan Coombes and
Ormald Vera Coombes who brought him up as their own child.
John Coombes’ mother eventually married and had another child, the respondent, the executor of her mother’s estate, Sandra Joy Ward, who was born on 27 September 1943. She is accordingly, some 14 years younger than John Coombes.
The proceeding to which this appeal relates was commenced by an originating motion filed in the Wangaratta registry of the Court on 13 February 2001. It seeks an order that provision be made out of the estate of May Roberts deceased for the proper maintenance and support of John Joseph Coombes pursuant to s 91 of the Administration and Probate Act 1958. In its present form that section applies to the estates of deceased persons who have died subsequent to the commencement of Part 7 of the Wills Act 1997, that is to say subsequent to 20 July 1998.
The effect of the amended provisions of the Administration and Probate Act is to confer upon the Court jurisdiction to order that provision or further provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased “had responsibility to make provision”. Thus the pool of possible claimants in respect of the estate of a deceased person for provision under Part IV of the Act was considerably widened on what it had been before. Prior to the amendment a claimant for provision or further provision out of the estate of a deceased person had to establish a particular relationship of blood or marriage so as to bring himself or herself within a statutory category. Since the amendment such claimant has had to establish, not any particular relationship, but that the person in respect of whose estate a claim is being made had a responsibility to make provision for the applicant. The section provides no definition of responsibility but prescribes a series of criteria by which the Court is required to reach a conclusion that the required responsibility existed.
Mr Coombes’ originating motion came on trial before McDonald J on 14 February 2002 at which time the estate of the deceased was agreed between the parties to consist solely of a suburban house valued at $370,000. After a trial lasting two days His Honour reserved judgment until 21 March 2002 when he dismissed Mr Coombes’ claim. He did so, in essence, because he was not satisfied that Mr Coombes’ natural mother, May Roberts had the necessary responsibility to make provision for him so that he failed to establish the jurisdictional fact required by s 91(1) of the Act.
Mr Coombes’ case before McDonald J sought to establish a long and close relationship between him and his natural mother notwithstanding his adoption by Mr and Mrs Coombes in 1933. His half sister, as executor of his natural mother’s estate, disputed his claim and contended that he did not have the relationship with his natural mother which he claimed, that he had little to do with her over many years and that for that and other reasons he could not establish the jurisdictional condition precedent required by s 91(1) of the Act.
As can be readily appreciated the long period of time over which the facts of this case occurred gave rise to a fertile field for disputation as to the deceased’s relationship with each of her children. This factual disputation was resolved by His Honour in a lengthy and careful judgment in which he examined each of the parties contentions and the evidence in relation to them. Having regard to the conclusion which this Court has reached, the fact that there was no argument put that any of His Honour’s findings were unsupported by the evidence and the narrow basis upon which this appeal was finally argued it is not necessary to rehearse here the factual findings made by His Honour or the evidence which supported them. It is sufficient to say that in general he preferred the evidence of the defendant to that of Mr Coombes as to the nature of the relationship which existed between him and the deceased during her lifetime, particularly as he considered that it was supported by the evidence of other witnesses. All of His Honour’s findings of fact are set out in his judgment at [2002] VSC 61. It is unnecessary to refer to them further. He concluded that those findings of fact led him to decide that Mr Coombes had not established that his deceased natural mother had any responsibility to make provision for him from her estate. Thus Mr Coombes’ application pursuant to Part IV of the Administration and Probate Act 1958 failed. After giving judgment dismissing Mr Coombes’ application and after considering written and oral submissions on the issue of costs His Honour published a separate judgment ([2002] VSC 84) by which he ordered that each party should bear his or her own costs. That judgment was not challenged on this appeal.
By a notice of appeal filed 3 April 2002 Mr Coombes sought to overturn McDonald J’s judgment on a number of grounds, most of which involve contentions as to his Honour’s determination of the matters required to be taken into account by s 91(4) of the Act. The appellant asserted that the trial judge gave undue weight to certain matters which arose for his determination with respect to the criteria set out in s 91(4) and failed to give appropriate weight to others. The principal ground, however, concerned what was said to be a legal ruling of the trial judge that the question to be addressed in determining whether a testator had responsibility to make provision for the proper maintenance and support an application under Part IV was whether, in all the circumstances, the testator had a moral duty to make such provision. It was this ground which took most of the time in the appellant’s argument on the appeal.
John Joseph Coombes died on 30 August 2002. On 5 September 2003 this Court added Mr Coombes’ then widow, Larissa Luana Coombes, as an appellant for the purposes of prosecuting the appeal. Such order was made without prejudice to the right of the defendant to contend that the appeal was, from the date of Mr Coombes’ death, incompetent, that question being referred to the Court which was to hear the appeal. In the event, having regard to the Court’s disposition of the appeal on the merits of Mr Coombes’ case it is not now necessary to address this question.
In the course of considering the application of s 91 of the Administration and Probate Act 1958 and, in particular, the question as to whether the deceased had a responsibility to make provision for Mr Coombes, McDonald J reviewed the history of testators family maintenance legislation in this State and its relationship to legislation concerned with the adoption of children. He concluded that, prior to s 91 being enacted in its present form by s 55 of the Wills Act1997, a person in the position of Mr Coombes would not have been able to make application under the legislation as it existed from time to time. He set out the last version of s 91 before its amendment and referred to the judgment of Brooking JA in Popple v Rowe[9]. His Honour then proceeded to consider the section in its present form and posed the threshold question that had to be determined in deciding whether an applicant could bring a claim as being whether it was established that the deceased testator had “responsibility” to make provision for the proper maintenance and support of the applicant out of her estate. His Honour construed the word “responsibility” by reference to the OED and referred to the Attorney General’s second reading speech on the bill which put s 91 into its present form. His Honour said:-
“Having regard to the speech of the Attorney General on the second reading of the bill to amend section 91 of the Administration and Probate Act and to a reference specifically to the amendment which would enable a ‘wider category of persons’ to make such applications such as the present to include those who have a ‘moral claim on the deceased’s estate’, I am of the view that when assessing whether the deceased had ‘responsibility’ to make provision for the proper maintenance and support for the plaintiff out of her estate the question to be addressed is whether in all the circumstances as a wise and just testator did the deceased have a moral duty to make provision by her will for the proper maintenance and support of the plaintiff out of her estate?”
His Honour then quoted the whole of the text of s 91 including the 12 criteria referred to in s 91(4) (e) – (p). He considered that although, by virtue of s 53(b) of the Adoption Act 1984 the plaintiff was to be treated in law as if he was not the child of the deceased, this alone did not prevent the Court determining that the deceased had a “responsibility” to make provision for his proper maintenance and support. His Honour reached this conclusion by reference to one of the criteria set out in s 91. He was satisfied that there was existing, between the deceased and the plaintiff, a relationship which had as its foundation the fact that the deceased was the natural mother of the plaintiff. He then proceeded to apply each of the other criteria set out in s 91(4) to determine whether the jurisdictional condition precedent required by s 91(1) existed. He did so in extensive and comprehensive terms. He concluded that the condition precedent did not exist.
[9][1998] 1 VR 651.
On the hearing of this appeal Mr Gillies of counsel, for the now appellant, submitted as his principal argument that McDonald J’s reference to “moral duty” in his formulation of the question to be answered as to whether the jurisdictional pre-requisite to relief existed meant that His Honour had substituted that concept for the criteria set out in s 91(4) (e) – (p). He referred to a number of cases, none of which appeared to support his argument, which rested entirely upon an assertion that, in some way, by using the term referred to McDonald J had “poisoned the well”, so as to render his consideration of the criteria in s 91(4) tainted.
There is no substance in Mr Gillies’ argument. By referring to “moral duty” it is clear that all that McDonald J was doing was construing the concept of “responsibility” referred to in s 91(1) and doing so by clear reference to the criteria set out in s 91(4) (e) – (p). There was no error in His Honour’s approaching the matter in this way. As has already been noted, before dismissing the plaintiff’s claim McDonald J applied each of the relevant criteria in s 91(4) to the facts as he found them and then concluded that the necessary “responsibility” did not exist.
Although Mr Gillies put some argument as to the effect of Mr Coombes’ death upon the efficacy of this appeal, the view which the Court takes of the merits of the appeal render it now unnecessary to consider further whether the appeal was in fact incompetent by the time it was heard.
In the course of argument Mr Gillies conceded that by reason of the death of Mr Coombes this appeal, if successful, should result in his estate succeeding to a legacy of perhaps $10,000 from the estate of his deceased natural mother. Subsequently he revised this figure to “$10,000 to $30,000”. Even if the larger of these figures was a realistic estimate of what Mr Coombes’ estate (and therefore, his widow, the surviving appellant) should have received from Mrs Ward’s estate if the appeal had been successful, this matter should not be left without a comment upon the waste of resources that have been poured into what was, arguably at least, a frivolous and vexatious appeal. The argument put by Mr Gillies was, at best, flimsy. It never had any realistic prospect of success. Once Mr Coombes died and his advisers considered that his claim had to be reassessed (whether they were correct in this view or not) the continuation of the appeal could not be justified on any account. Legal advisers bear a heavy responsibility if they advise clients to embark upon or continue hazardous or speculative litigation. That responsibility is even heavier where, as here, the parties concerned are of very modest means and the estate concerned is not large. If, on the other hand, the appellant insisted on prosecuting the appeal against legal advice the responsibility for the outcome and its consequences is not theirs.
In the court below McDonald J made no order as to costs.
Whilst it is true that in some cases an unsuccessful applicant under Part IV of the Administration and Probate Act has received his or her costs from the estate, the circumstances of this case would make such a result entirely inappropriate.
Mr Tallarida of counsel for the respondent sought an order for costs both against the estate of Mr Coombes and against the surviving appellant in her own right, such costs to be taxed as between solicitor and client. He did this on the basis that the appeal was frivolous and vexatious and ought not to have proceeded. His contention is not without real force. However, notwithstanding that, it would be inappropriate for Mrs Coombes now to have to bear the costs of the appeal from her own personal resources. She prosecuted the appeal in a representative capacity even if, as must be suspected, if not assumed, she is the sole beneficiary of her deceased husband’s estate. In the circumstances she should be ordered to pay the respondent’s costs of the appeal, such costs to be taxed as between party and party, in her capacity as representative of the estate of John Joseph Coombes deceased.
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