Coppola v Nobile

Case [2012] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

COPPOLA & ANOR v NOBILE & ANOR

[2012] SASC 42

Reasons for Decision of The Honourable Justice Stanley

22 March 2012

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS

First defendant’s application seeking orders restraining the plaintiff’s solicitors from continuing to act for the plaintiffs – where the second plaintiff is the principal at the plaintiffs’ solicitor’s firm – whether the court should exercise its inherent supervisory jurisdiction over its officers to restrain the plaintiff’s solicitors from acting – whether the court has the power to grant the orders sought against a non-party.

Held: The court does not have the power to make the orders sought against non-parties to the principal action – however in the interests of justice order that the second plaintiff be restrained from continuing to act for the plaintiffs in the action.

Wills Act 1936 (SA) s 22, referred to.
Mitchell v Burrell & Anor Unreported, Supreme Court of New South Wales, Brereton J, 26 June 2008, distinguished.
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561; Holborow & Ors v MacDonald Rudder [2002] WASC 265; Scallan v Scallan [2001] NSWSC 1078; Kooky Garments Ltd v Charlton [1994] 1 NZLR 587; Patrick Stevedores Operations (No 2) v Maritime Union of Australia (1998) 195 CLR 1, discussed.
Jones v Dunkel (1959) 101 CLR 298; Miles v Hughes Unreported, Supreme Court of Western Australia, Parker J, 11 November 1998, considered.

COPPOLA & ANOR v NOBILE & ANOR
[2012] SASC 42

Civil

STANLEY J:

Introduction

  1. The first defendant brings an interlocutory application for orders restraining the plaintiffs’ solicitors, Peter Scragg & Associates, from continuing to act for the plaintiffs in this action.  The application is opposed by the plaintiffs.

  2. In the principal action, the plaintiffs have applied to have admitted to probate a will allegedly executed by Vittoria Coppola (“the deceased”) made on 2 June 1992.  In the alternative, they seek to have admitted to probate a will allegedly executed by the deceased made on 18 April 1972. 

  3. The plaintiffs are the executors of the deceased’s estate pursuant to the will allegedly made on 2 June 1992. 

  4. The first plaintiff and the defendants are the three surviving children of the deceased. 

  5. The second plaintiff, Peter Scragg (“Mr Scragg”), was the solicitor for the deceased at the time she allegedly made her will dated 2 June 1992. 

    Background

  6. The deceased died on 31 August 2009.  On 7 September 2009 the first defendant lodged a caveat in the probate registry of the court against the deceased’s estate.  A warning to the caveat was filed by the plaintiffs on 2 November 2009.  On 3 February 2010 the plaintiffs lodged an application for a grant of probate in relation to the will allegedly made by the deceased on 2 June 1992. 

  7. Notwithstanding numerous requests by the plaintiffs to the first defendant that the caveat be discontinued, the first defendant has failed to do so. 

  8. The first defendant objects to either the…

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Coppola v Nobile [2012] SASC 42
Case
[2012] SASC 42
Decision Date

CaseChat Overview and Summary

The case of Coppola v Nobile involved the first defendant’s application to restrain the plaintiff’s solicitors from continuing to act for the plaintiffs. The second plaintiff, Peter Scragg, who was the principal at the plaintiffs’ solicitor’s firm, was subject to the application. The primary legal issue for the court was whether it had the inherent supervisory jurisdiction to restrain the plaintiff’s solicitors from acting, particularly considering that the court lacked power to grant orders against non-parties.

The court found that it did not have the authority to make the orders sought against non-parties in the principal action. However, in the interests of justice, the court ordered that Peter Scragg be restrained from continuing to act for the plaintiffs in the action. The reasoning behind this decision was that Mr Scragg's conduct might come under review during the trial, and his role as an essential witness in proving the will, coupled with his financial interest in the outcome, raised concerns about the integrity of the judicial process and the appearance of justice.

The court concluded that restraining Mr Scragg from acting in the matter was appropriate despite the first plaintiff's wish for him to continue. This decision was grounded in the importance of maintaining the integrity of the judicial process and public confidence in the due administration of justice. The order would not prevent Mr Scragg from acting as executor of the deceased's estate if the 1992 will was admitted to probate.

Orders

Orders of the court

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Background

Background to the litigation

The second plaintiff, Peter Scragg (“Mr Scragg”), was the solicitor for the deceased at the time she allegedly made her will dated 2 June 1992. Background The deceased died on 31 August 2009. On 7 September 2009 the first defendant lodged a caveat in the probate registry of the court against the deceased’s estate. A warning to the caveat was filed by the plaintiffs on 2 November 2009. On 3 February 2010 the plaintiffs lodged an application for a grant of probate in relation to the will allegedly made by the deceased on 2 June 1992. Notwithstanding numerous requests by the plaintiffs to the first defendant that the caveat be discontinued, the first defendant has failed to do so. The first defendant objects to either the 1992 or the 1972 wills being admitted to probate. She does so on a number of grounds. In respect of both wills, she alleges that:1.the deceased lacked testamentary capacity;2.the deceased lacked moral insight into the legitimate claims of the first defendant on her bounty, and her sense of right was perverted in that she was unable to discriminate between the respective moral claims of her three daughters;3.in any event the wills were not properly executed in that she was illiterate, and the wills were not properly translated by a competent and independent professional interpreter. In respect of the 1972 will she alleges that, in addition, it is ineffective in that it was revoked by the 1992 will in accordance with the provisions of s 22 of the Wills Act 1936 (SA). In respect of the 1992 will she alleges that, in addition, it is ineffective because:1.the will contains delusional statements by the deceased alleging criminal behaviour by the first defendant in the nature of threats against the deceased and her late husband over a 23-year period;2.the will was entered into in consequence of undue influence by the first plaintiff, who was involved in the process of giving instructions for and the events leading to the execution of the will; and3.the circumstances surrounding the execution of the will were such as to excite suspicions as to whether it contained the real intentions of the deceased, given allegations of her delusional behaviour.Application to restrain the solicitors The interlocutory application is supported by an affidavit of Nicola Minicozzi sworn 1 March 2012. It deposes to the fact that the second plaintiff, Mr Scragg, is the principal of the firm Peter Scragg & Associates, which has the conduct of the principal action on behalf of the plaintiffs. He asserts that Mr Scragg has appeared as counsel and solicitor in the matter before a master of the court on a number of occasions. He asserts that Mr Scragg will be an essential witness of fact at the trial. It is evident Mr Scragg will be called to prove the will. Mr Minicozzi deposes to instructions that Mr Scragg be cross-examined as to his involvement in taking the deceased’s instructions in relation to the 1992 will, and the circumstances surrounding the execution of that will. He also points to the appointment of Mr Scragg as an executor of the deceased’s estate pursuant to the 1992 will. He contends Mr Scragg might reasonably be thought to have a material interest in the outcome of the principal action by reason of that fact.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, the order I make restraining Mr Scragg from acting for the plaintiffs in the within action will not restrain him from acting as executor of the deceased’s estate if the 1992 will is admitted to probate. As I have said, Mr Scragg has an obvious financial interest in the outcome of the proceedings by reason of this fact, however, it would be futile to restrain him from acting as executor, if that comes to pass, where his firm was not restrained from doing so as well. This is because his financial interest, through the firm, would still exist even if the court restrained him from acting as executor in his own right but did not restrain the firm from doing so, and, for reasons I have explained, I am not prepared to make such an order against the firm.Conclusion I would order that the plaintiffs’ solicitor, Peter Scragg, be restrained from continuing to act for the plaintiffs in the within action. I will hear the parties further as to the costs of the within application. The first defendant is to bring into court minutes reflecting the court’s order.

Ratio Decidendi

Legal Principle Established

Brereton J made an order restraining the solicitors from acting for the plaintiff. His Honour considered there was reason to suppose that the solicitor’s conduct may come under attack and review because of potential anomalies between the facts pleaded in the statement of claim and certified by him on the one hand, and the contents of his letter of advice. His Honour considered there was a real chance that the solicitor could be called to give evidence by either the plaintiff or the defendants. He could be subjected to robust cross-examination if called by the plaintiff, or be the subject of an application for leave to cross-examine him as an adverse witness if called by the defendants, if his evidence-in-chief departed from the terms of the letter of advice he had provided to the plaintiff. If he was not called by the plaintiff, the failure to do so could give rise to a Jones v Dunkel[14] submission. In the circumstances, his Honour considered that a fair-minded, reasonably informed member of the public would entertain serious reservations as to whether decisions about the conduct of the plaintiff’s case would be made exclusively in the interests of the plaintiff, or to a greater or lesser extent, in the interests of her solicitor. In particular, there would be reservations as to whether decisions to call him or not to call him in the plaintiff’s case were influenced by his own interests as well as, or in place of, the plaintiff’s, and there would be concerns if he were called in the defendants’ case as to whether the vigour of any cross-examination of him was influenced by concern for his interests as distinct from those of the plaintiff.[15] [14] (1959) 101 CLR 298.[15] Unreported, Supreme Court of New South Wales, 26 June 2008 at [22] – [24].Consideration In the present case, there is reason to suppose that Mr Scragg’s conduct may come under review by the court at trial. The first defendant challenges the efficacy of the 1992 will on the basis that the deceased executed it at a time when she lacked testamentary capacity, was suffering from delusions, and made the will in consequence of the undue influence of the first plaintiff, who, it is alleged, was involved in the process of giving instructions to Mr Scragg for the making of the will. As I have said, Mr Minicozzi has deposed to instructions that Mr Scragg be cross-examined as to his involvement in taking the deceased’s instructions, and the circumstances surrounding the execution of the 1992 will. Coupled with the financial interest that Mr Scragg and his firm has in the success of the application to have the 1992 will admitted to probate, I am satisfied that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Scragg should be prevented from acting, in the interests of protecting the integrity of the judicial process and the due administration of justice, including the appearance of justice. I am satisfied that it is appropriate to restrain Mr Scragg from continuing to act in the matter, notwithstanding the first plaintiff’s wish that he continues to act. In my view, considerations grounded in the importance of maintaining the integrity of the judicial process and public confidence in the due administration of justice warrants such an order, notwithstanding the interests of the first plaintiff in having Mr Scragg act. Mr Scragg’s evidence goes beyond merely proving the will. His evidence will have to go to the circumstances in which he took instructions for making the will, his observations as to the influence being exercised over the deceased by the first plaintiff, his client, and his observations as to the deceased’s testamentary capacity. Moreover, his position is complicated by the financial interest he and his firm have in the administration of the deceased’s estate if the 1992 will is admitted to probate. In this context I note that the proceedings also concern an application, in the alternative, to have the 1972 will admitted to probate. In that event, I note that Mr Scragg is not named as an executor of the estate pursuant to that will. Accordingly, his financial interest in having the 1992 will admitted to probate is obvious. Mr Haines QC, for the plaintiffs, submitted, on the basis of the reasons of Parker J in Miles v Hughes,[16] that this is an irrelevant consideration. I disagree. Parker J restrained the solicitors from acting in that matter primarily because of the risk that the firm would be liable to the plaintiff in the action, to restore the status quo in the estate, if the firm’s client, the defendant, was unsuccessful at trial. However, his Honour did not regard as irrelevant the firm’s financial interest in the outcome of the action resulting from profit costs made by the firm in the administration of the estate. In fact his Honour considered this also made it undesirable the firm should continue to act.[16] Unreported, Supreme Court of Western Australia, Parker J, 11 November 1998.