Dirkis v Public Trustee and Guardian as trustee of the Estate of Kathleen Mary Dirkis (Civil Dispute)
[2021] ACAT 57
•14 May 2021, 17 June 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DIRKIS v PUBLIC TRUSTEE AND GUARDIAN AS TRUSTEE OF THE ESTATE OF KATHLEEN MARY DIRKIS (Civil Dispute) [2021] ACAT 57
XD 32/2021
Catchwords: CIVIL DISPUTE – application for damages for negligence and other torts by beneficiary under a will against the administrator of the estate and its legal representatives – whether Tribunal member disqualified from hearing the respondents’ summary dismissal applications on the grounds of apprehended bias – whether a beneficiary of an unadministered estate has a cause of action in negligence against the Public Trustee and Guardian (as administrator of the estate) for loss caused by a diminution in value of the beneficiary’s share of the estate due to payment of costs from the estate for which the estate allegedly was not liable – circumstances would amount to a breach of trust within the meaning of the Trustee Act 1925 – damages at common law not available – applicant’s only right is an equitable chose in action to compel the due administration of the estate – tribunal lacks jurisdiction to grant equitable relief for a breach of trust – claims in tort against legal representatives lacking in substance – considerations involved in making an order under section 32(1)(c) of the ACAT Act restricting applicant’s ability to make a subsequent application without leave of the tribunal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 32
Administration and Probate Act 1929 ss 13, 24, 39, 40, 41, 41A, 41B, 41C
Australian Consumer Law s 18Magistrates Court Act 1930 s 258
Trustee Act 1925 ss 4, 85
Subordinate
Legislation cited: Court Procedures Rules 2006 Div 2.17.5, rr 1734, 1803
Cases cited:Argy & Anor v Blunts and Lane Cove Real Estate Pty Ltd and Ors [1990] FCA 51
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2
Campbell v Blackshaw [2018] ACTSC 39
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
David v David [2009] NSWCA 8
Dirkis v Public Trustee and Guardian [2021] ACAT 30
Gonzales v Claridades [2003] NSWCA 227
Halfhide v Beaven [2003] NSWSC 1207
Jamieson Mary v Australian Workers Union [1999] VCAT 628
Johnson v Johnson [2000] HCA 48
Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88
Maguire & Tansey v Makaronis [1997] HCA 23
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
Official Receiver in Bankruptcy v Schultz [1990] HCA 45
Pagels v MacDonald [1936] HCA 15
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
The Public Trustee and Guardian of the Australian Capital Territory v Dirkis [2021] ACTSC 29
The State Electricity Commission Board v Rabel [1998] 1 VR 102
List of
Texts cited:G. E. Dal Pont Lawyers’ Professional Responsibility (Lawbook Co. 6th ed, 2017)
J. D. Heydon and M. J. Leeming, Jacob’s Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006)
Tribunal: Senior Member M Orlov
Date of Orders: 14 May 2021, 17 June 2021
Date of Reasons for Decision: 29 June 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 32/2021
BETWEEN:
PAUL DIRKIS
Applicant
AND:
PUBLIC TRUSTEE AND GUARDIAN AS TRUSTEE OF THE ESTATE OF KATHLEEN MARY DIRKIS
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:14 May 2021
ORDER
The applicant's oral application to adjourn the hearing of 14 May 2021 is refused.
The applicant's oral application that Mr Pappas did not appear for the respondents is refused.
The applicant's oral application for Senior Member Orlov to recuse himself is refused.
The Tribunal notes: the reasons for the decision mentioned in Order 3 will be provided with any written reasons provided for decision on the substantive application.
The Civil Dispute Application against the second and third respondents is dismissed under section 32(1)(b) of the ACT Civil and Administrative Tribunal Act 2008.
The future hearing of the application by the first respondent for summary dismissal is adjourned part heard before Senior Member M Orlov on Thursday 17 June 2021 at 10:00am, to be heard in person.
The first respondent is directed to file and serve by 21 May 2021 any supplementary submissions, limited to 5 pages, addressing:
(a) the proper characterisation of the applicant's cause of action, if any, against the first respondent; and
(b) any issue arising out of the prior determination of matter XD 700/2020 that may bear on the question whether the present application is otherwise an abuse of power for the purposes of section 32(1)(c) of the ACT Civil and Administrative Tribunal Act 2008.
The applicant is to file and serve any responsive submissions (ie submissions confined to answering matters raised in the first respondent's supplementary submissions), limited to 10 pages, by 28 May 2021.
……………Signed……..
Senior Member M Orlov
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 32/2021
BETWEEN:
PAUL DIRKIS
Applicant
AND:
PUBLIC TRUSTEE AND GUARDIAN AS TRUSTEE OF THE ESTATE OF KATHLEEN MARY DIRKIS
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:17 June 2021
ORDER
The Tribunal orders that:
The Application against the first respondent is dismissed.
Pursuant to section 32 (2)(c)(ii) of the ACT Civil and Administrative Tribunal Act 2008 the applicant is directed to not make any subsequent Application against any person relating to, or arising out of, or connected with, the administration of the applicant's mother's estate without prior leave of the Tribunal and on not less than 7 days' notice in writing to the Public Trustee and Guardian.
The Tribunal will give reasons for the decision at a later date.
………Signed…………..
Senior Member M Orlov
REASONS FOR DECISION
Overview of decision
The applicant lodged a civil dispute application on 13 January 2021 claiming damages caused by the alleged negligence of the first respondent (the Public Trustee and Guardian in its capacity as the administrator of the applicant’s mother’s estate, of which he is one of four beneficiaries), the second respondent (the ACT Government Solicitor in its capacity as the solicitor for the Public Trustee and Guardian) and the third respondent (the Solicitor-General for the ACT, Mr Peter Garrisson, as the solicitor having the overall responsibility for the conduct of the matter and supervision of legal practitioners doing work on the matter).
The civil dispute application gave the following reasons for the claim:
Between 10 May 2019 and 14 may 2019 the PTG made 3 payments totalling $30624.00, to Michael Dirkis purporting to be indemnity costs. In addition Michael Dirkis Drew a cheque $3110.00 for legal advise on how to defraud the estate. These costs were not informally or formally costed. Between October 2020 and December 2020, the ACT GOVERNMENT SOLICITOR refused to confirm or deny that they or the PTG had the skills nor procedures to assess Indemnity costs. On the 21 December 2020, Mr Taylor (PTG) wrote to indicating that they didn’t have any documented process for assess Indemnity costs. On the 23/12/2020, Mr Garrisson wrote to me indicating Michael Dirkis was not entitled to costs pursuant to PRO 513 of 2011. On the 23/12/2020 and 5 January 2021, I wrote to Mr Garrisson to confirm that he shared his legal opinion and provide appropriate advise on Michael Dirkis’s indemnity Costs with the PTG or recant their position. I also wrote To Mr Taylor on 5/1/21, . Mr Garrison responded by encouraging me to commence this action. on 1/421 I contacted a QC and he confirmed my understanding that Indemnity Costs, do not cover 1) costs incurred due the negligence of the lawyer 2)cost not related to the Substantive matters in the litigation. Michael Dirkis was a consenting second defendant, as such his cost should have been minimal As a result of the PTG Negligent conduct, I have suffered a diminution in my 1/4 share of the estate totally $6500. As a result of Mr Garrison lack due diligence and a reckless indifference, he was negligent and breached the ACT Code of conduct and Model litigant principals. [errors in the original]
The orders sought were:
a declaration that Mr Garrisson, was negligent due to lack of due diligence in the preparation of correspondence and advise to the PTG and myself a declaration that Mr Garrisson made recklessly false and misleading statements, with a reckless regard to their truth. a declaration that public trustee was negligent in Paying invoices. i am seeking the damages of $6,500, relating to the 1/4 share of those costs I have born. I am seeking $10,000 damages for the conduct of Mr Garrisson. [errors in the original]
The third respondent filed an interim application on 5 February 2021 seeking an order for summary dismissal of the application against him under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) on the grounds that the application was frivolous or vexatious, lacking in substance, or otherwise an abuse of process.
On 10 March 2021, the tribunal directed the applicant to give to the tribunal and the respondents by 16 April 2021 an outline of the basis of his claim against each respondent and gave directions for the filing of submissions and evidence to be relied upon for the summary dismissal application.
On 16 April 2021, the applicant filed and served an undated document titled “Claim against the Public Trustee & Guardian” comprising 49 paragraphs in which he outlined the basis of his claims against each respondent. For convenience, I will refer to this document as the ‘applicant’s reformulated claim’. In support of his claim against the third respondent, the applicant attached a copy of an article written by a barrister, Stephen Standing, titled “Ethical and legal obligations in mediations and other negotiations” and a copy of the decision in Argy & Anor v Blunts and Lane Cove Real Estate Pty Ltd and Ors[1] (Argy) in respect of which he wrote:
I have attached a copy of an article detailing the liability of persons in Mr Garrisons position, where they engage in false and misleading communications as part of negotiations. And the Decision in Argy, where the court found persons like Mr garrison was found to be negligent. [errors in the original]
[1] [1990] FCA 51
Subsequently, the first and second respondent also filed interim applications for summary dismissal of the claims against them. The respondents filed submissions in response to the applicant’s reformulated claim on 30 April 2021 and an outline of argument in support of summary dismissal on 14 May 2021. The applicant filed submissions titled “Response to Mr Pappas’ Submission” on 13 May 2021.
The applications for summary dismissal came before me for hearing on 14 May 2021. On the morning of the hearing, when the applicant became aware that I was listed to hear the matter, the applicant made an oral application that I should recuse myself on the grounds of apprehended bias having regard to credit findings I made in an earlier civil dispute application involving claims by the applicant in negligence and for misleading or deceptive conduct against the Public Trustee and Guardian.[2] I declined to do so and gave brief reasons, indicating that I would provide more detailed reasons when I gave my reasons for decision in the substantive applications.[3]
[2] Dirkis v Public Trustee and Guardian [2021] ACAT 30
[3] Transcript of proceedings on 14 May 2021 at page 4 line 34 to page 5 line 6
After hearing from the parties on 14 May 2021, I made an order under section 32(1)(b) of the ACAT Act dismissing the application against the second and third respondent on the grounds that it was lacking in substance and indicated that I would give reasons later. I adjourned the hearing of the first respondent’s application to give the parties an opportunity to consider new issues that I raised at the hearing and made orders for the filing and service of further submissions.
The first respondent filed supplementary submissions pursuant to my directions on 21 May 2021. The applicant filed a corrected outline of submissions on 3 June 2021 and a supplementary outline of submissions dated 8 June 2021.
I heard the first respondent’s summary dismissal application on 17 June 2021. The first respondent tendered without objection a folder of documents comprising mainly written communications between the parties referred to in the applicant’s reformulated claim (Exhibit R1). Having considered the evidence and the parties’ written and oral submissions I made an order under section 32(1)(b) of the ACAT Act dismissing the application against the first respondent on the grounds that it was lacking in substance. I also made an order under section 32(1)(c)(ii) directing the applicant not to make any subsequent application against any person relating to, arising out of, or in any way connected with the administration of the applicant’s mother’s estate without prior leave of the tribunal and without giving the Public Trustee and Guardian seven days prior notice in writing. I indicated that I would give written reasons shortly.
These are my reasons for each of the earlier mentioned decisions.
The recusal application
In Dirkis v Public Trustee and Guardian [2021] ACAT 30 the applicant claimed that the Public Trustee and Guardian had engaged in misleading or deceptive conduct, or been negligent, in failing to advise the applicant in a telephone conversation that the Public Trustee and Guardian’s refusal to accept voluntarily an appointment as administrator of the applicant’s mother’s estate could be ‘overridden’ by a court order, because of which the applicant claimed he suffered loss. After a two-day hearing I dismissed the application. In doing so I criticised the applicant’s evidence and made adverse findings in relation to his credit.[4]
[4] [2021] ACAT 30 at [35], [36], [64], [66], [76]
The applicant submitted that I should disqualify myself from hearing the current applications “because you heard that matter and you formulated adverse views about me that…were based on the fact that I’m a fairly chaotic person rather than anything else”.[5] I understood the application to be made on the grounds of apprehended bias. In refusing the application I explained:
Now, the determination of the proceedings in XD700 involved my making certain credit findings about you. Now, if this was a final hearing of this matter where you were required to give evidence and there needed to be an assessment of your evidence then an application of that kind would have some force; however, this is an application, effectively a strike-out application, where the approach that the tribunal has to take does not involve any evaluative judgement of any evidence that you might give, but, rather, considers whether, as a matter of law, there is a proper cause of action and whether, in the exercise of the Tribunal’s discretion, certain consequences should follow.[6]
[5] Transcript of proceedings on 14 May 2021 at page 3 lines 31–34
[6] Transcript of proceedings on 14 May 2021 at page 4 lines 34–44
In Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd, Edelman J explained that the rule against bias and apprehended bias is that “the tribunal, or more accurately the person or persons constituting the tribunal, which exercises jurisdiction must be, and must be seen to be, independent and impartial”.[7]
[7] [2021] HCA 2 at [80], see also at [82]
In CNY17 v Minister for Immigration and Border Protection, Nettle and Gordon JJ explained the test for apprehended bias as follows (omitting citations):[8]
56. The test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”. A finding of apprehended biasis not to be reached lightly. The determination of whether an apprehension of bias is “reasonable” is not assisted by philosophical conceptions of the varieties of seriousness or materiality.
57. The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker’s impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. As Deane J said in Webb v The Queen, in relation to disqualification by extraneous information, “knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?
58. In applying the test, “it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made”. It is also necessary to consider “what is involved in making the decision and the identity of the decision-maker”. This draws attention to the fact that the test must recognise “differences between court proceedings and other kinds of decision-making”. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has “a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]”.
[8] [2019] HCA 50 at [56]–[58]; see also at [132]–[135] (per Edelman J) and the discussion of the principles in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [67]–[73] (per Gummow ACJ, Hayne, Crennan and Bell JJ); British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 at [32]–[48] (per French CJ), [139]–[145] (per Heydon, Kiefel and Bell JJ); Johnson v Johnson [2000] HCA 48 at [1]–[5] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)
The circumstance the applicant considers may affect my impartiality and lead me to decide the summary dismissal application otherwise than on its legal and factual merit appears to be the risk of prejudgment of the applicant’s credit based on the credit findings I made in the earlier proceedings. However, this overlooks the nature of the tribunal’s task and the principles that guide the tribunal in deciding a summary dismissal application under section 32 of the ACAT Act.
The principles generally are taken to derive from the Victorian Court of Appeal decision in The State Electricity Commission Board v Rabel [1998] 1 VR 102 (Rabel). The following summary of the principles derived from Rabel by the Victorian Civil and Administrative Tribunal in Jamieson Mary v Australian Workers Union [1999] VCAT 628 has been adopted and applied consistently in the ACAT. The references to “s75” are to the Victorian equivalent of section 32 of the ACAT Act:
A short summary of the principles from Rabel’s case as applicable to … s75 …proceedings is as follows:
(1) … s75 permits an order to be made at any time including on the Tribunal’s own initiative. The procedure to be adopted is in the Tribunal’s discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.
(2) If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(3) However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant’s material contains the whole of their case.
(4) A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(5) In an application, the respondent bears the onus of showing that the complainant’s case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.
(6) For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant’s case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal’s power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.
(7) In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9) The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.
The observations in (6), (7) and (8) are pertinent here. As Ormiston J observed in Rabel at [14], an application will be lacking in substance if it is based on an “untenable proposition of law or fact”. The determination of that issue does not involve any evaluative judgment about the sufficiency of a party’s evidence or the credit of any witness.
I am satisfied that when the nature of the decision I am required to make is understood, a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide on an application under section 32 of the ACAT Act because of the findings I made about the applicant’s credit in the earlier application.
Background to the summary dismissal applications
The applicant’s mother, the late Kathleen Mary Dirkis, died on 21 September 2009. By her will, the mother appointed the applicant and his brother, Michael Dirkis, as executors of her estate. The only beneficiaries of the estate are the applicant and his three siblings, Michael, Aurora, and John. The executors were granted probate of the will on 4 October 2011 in proceedings number PRO 513 of 2011.
On 3 March 2017, the applicant’s sister, Aurora Andruska, commenced proceedings number SC 57 of 2017 in the ACT Supreme Court seeking orders for the removal and replacement of her brothers as executors.
On 9 August 2017, McWilliam AsJ made orders by consent in SC 57 of 2017 removing the applicant and his brother as executors and appointing the Public Trustee and Guardian as administrator of the mother’s estate. After a contested hearing about costs, her Honour ordered that the cost of the parties should be paid out of the estate on an indemnity basis.[9] Also before McWilliam AsJ for hearing on 9 August 2017 was an application in proceedings in PRO 513 of 2011 in which the applicant was the moving party. Her Honour made an order dismissing the application in proceedings with no order as to costs and, by consent, made identical orders in PRO 513 of 2011 as were made in SC 57 of 2017, including that the costs of the parties should be paid out of the estate on an indemnity basis.[10]
[9] Exhibit R1, Tab A, document 1
[10] Exhibit R1, Tab A, document 2
The Public Trustee and Guardian has paid $111,235.99 out of the estate for Aurora’s and Michael’s legal costs pursuant to the orders made on 9 August 2017,[11] including $30,624.90 for Michael’s costs.[12] The applicant takes issue with the payment of Michael’s costs. The applicant claims the amount includes costs that fall outside the orders made on 9 August 2017 and costs that were not reasonably incurred because they were for rework, or work arising out of negligence by Michael’s solicitor.[13] He claims that the Public Trustee and Guardian was negligent in failing to undertake its own assessment of whether Michael’s costs were properly and reasonably incurred and in failing to require the costs to be assessed under Division 2.17.5 of the Court Procedures Rules 2006.[14] He claims to have suffered loss as a result – namely, a diminution in the value of his quarter share of the estate[15] – and claims damages caused by the Public Trustee and Guardian’s negligence in the amount of $6,500.[16]
[11] Dirkis v Public Trustee and Guardian [2021] ACAT 30 at [82]
[12] Public Trustee and Guardian Cash Common Fund, Consolidated Statement of Account for the Estate of Kathleen Mary Dirkis (attachment to Civil Dispute Application dated 13 January 2021)
[13] Applicant’s reformulated claim filed on 16 April 2021, at paragraph 1, 31; Applicant’s “Response to Mr Pappas’ Submissions” dated 12 May 2021, Part 1 paragraphs C–F
[14] Applicant’s reformulated claim filed on 16 April 2021, at paragraphs 32, 33
[15] Applicant’s reformulated claim filed on 16 April 2021, at paragraphs 34–38
[16] Applicant’s “Response to Mr Pappas’ Submissions” dated 12 May 2021, at paragraph 32
Although the applicant submitted a claim to the Public Trustee and Guardian for his legal costs, it is common ground that the Public Trustee and Guardian has not paid any amount towards the claim and no agreement has been reached as to any amount of costs that is or may be payable to the applicant pursuant to the orders made by McWilliam AsJ on 9 August 2017.[17] The applicant claims that the Public Trustee and Guardian, acting on the advice of the Government Solicitor, failed or refused to pay his costs without just cause[18] and failed or refused to negotiate his claim for costs in good faith.[19] He claims that employees of the Government Solicitor, working under the supervision and direction of the Solicitor-General,[20] conspired to cause him economic loss[21] and engaged in misleading or deceptive conduct, as I understand the allegations, by suggesting in correspondence with the applicant that the Public Trustee and Guardian wished to reach agreement on costs when in fact it had no genuine intention of doing so.[22] According to the applicant, this lead the Public Trustee and Guardian to instruct the Government Solicitor to file an Originating Application in the Supreme Court seeking an order that the applicant file a bill of costs arising from the two proceedings. It is uncontroversial that after a contested hearing Elkaim J granted the application on 23 February 2021[23] and that the applicant lodged a bill of costs in each proceeding on 25 March 2021.[24] I was informed that the assessment of the bills of costs has not been completed.
[17] ibid at paragraphs 2–4
[18] ibid at paragraphs 14, 19, 21
[19] ibid at paragraphs 6–30
[20] ibid at paragraphs 8–10, 24
[21] ibid at paragraphs 7, 9, 40
[22] ibid at paragraphs 20–22, 42(b)
[23] The Public Trustee and Guardian of the Australian Capital Territory v Dirkis [2021] ACTSC 29
[24] Exhibit R1, Tab A documents 5, 6
The applicant initially claimed that he suffered loss as result of the conduct amounting to “$3,600 in direct costs and the time costs of appearing in court for a day and 7 days preparing documents”.[25] However, in his written submissions to the Tribunal he limited his claim to $3,600 for the “cost of preparing and filing a bill of costs”.[26]
[25] Applicant’s reformulated claim filed on 16 April 2021, at paragraph 39
[26] Applicant’s ‘Response to Mr Pappas’ Submissions’ dated 12 May 2021, at paragraph 32
The applicant has taken exception to a letter from the Solicitor-General dated 23 December 2020, the material parts of which state:[27]
The Public Trustee and Guardian has always agreed to pay the indemnity costs you have reasonably incurred in Supreme court Proceedings No. SC 58 of 2017. The issue is your misunderstanding of the basis upon which the assessment of these costs is undertaken.
Neither the Public Trustee and Guardian nor this office was involved in the above proceedings prior to the order being made by her Honour on 9 August 2017. In those circumstances, we are not in a position to determine whether the costs you are seeking reflect the work reasonably required to be done on your behalf in the proceedings in the absence of any supporting information. this is particularly the case given:
1. the disparate amounts you report were claimed by other beneficiaries of the Estate;
2. Mr O’Keefe does not appear, from the material available to us, to have been on the record in PRO 513 of 2011 or SC 58 of 2017; and
3. you have provided no invoice from the counsel who did represent you in the proceedings.
These circumstances are further complicated by the fact that both SC 58 of 2017 and your application in PRO 513 of 2011 were heard together yet your entitlement is only to costs in defending SC 58 of 2017. You have no entitlement to the costs of the application in PRO 513 of 2011.
As you are aware, the Public Trustee and Guardian, as Administrator of your mother’s Estate, has a duty to administer the estate according to law. In relation to the payment of debts, this requires that the Public Trustee and Guardian pay the debts of the estate with due diligence. this means in relation to your claim for costs, that the PTAG must be satisfied that the costs were reasonably incurred in the precise litigation in which that entitlement arose.
My office has, on several occasions, explained the basis on which costs are assessed and endeavoured to resolve the quantum of costs payable and, in so doing, provided you with options for resolving that issue. My office has maintained a clear and consistent position in relation to the payment of your costs. It is for these reasons that lawyers of my office have asked you to provide them with documents supporting your claim for costs. [emphasis added]
[27] Exhibit R1, Tab B document 29
Among other things, the applicant contended in correspondence dated 23 December 2020 and 5 January 2021 that the underlined passage made the false and misleading assertion that no costs were payable to him in respect to PRO 513 of 2011, which he said was wrong.[28]
[28] Exhibit R1, Tab B document 30, 31
However, the Solicitor-General wrote to the applicant again on 7 January 2021, clarifying the Public Trustee and Guardian’s position in that regard:[29]
As the Government Solicitor has previously advised, the Public Trustee and Guardian is prepared to pay your legal costs as ordered by the Court in proceedings no SC 58 of 2017 and PRO 513 of 2011. The issue is that you do not believe that any process is required in relation to the assessment of those costs.
As the Government Solicitor has pointed out on a number of occasions, the payment of costs, whether on an indemnity or other basis, is to be either by agreement or on an assessment by the Court in accordance with the provisions of the Court Procedures Rules 2006, notably Part 2.17.
Despite several requests, you have declined to provide sufficient information to provide a proper basis to assess whether the costs you say you incurred were in fact reasonably incurred. Accordingly, it has not been possible for the Government Solicitor to reach an agreement on behalf of the Public Trustee and Guardian with you in relation to your costs. In the circumstances, as requested in the Government Solicitor’s letter of 27 November 2020, we look forward to receiving your sealed bill of costs by 12 January 2021.
[29] Exhibit R1, Tab B document 33
Despite this, the applicant claims that the Solicitor-General’s ‘negligent’ advice that no costs were payable to him in respect to PRO 513 of 2011 was causative of the Public Trustee and Guardian’s decision to seek an order that he file a bill of costs.[30] The logic of that proposition is not entirely clear given that the orders sought in the Supreme Court were for the applicant to file a bill of costs arising from both proceedings and the decision to file the originating application was preceded by extensive correspondence in which initially the Public Trustee and Guardian,[31] and subsequently, the Government Solicitor,[32] reiterated the Public Trustee and Guardian’s position that it could not accept the applicant’s claim for costs in the absence of adequate and satisfactory evidence that the costs were properly and reasonably incurred. The Public Trustee and Guardian brought matters to a head in a letter from the Government Solicitor to the applicant dated 23 November 2020,[33] giving the applicant a final opportunity to provide a breakdown of how his costs were made up, failing which the Public Trustee and Guardian gave notice that it would require the applicant to file a bill of costs for assessment. All these events pre-dated the Solicitor-General’s letter of 23 December 2020. Nevertheless, in his written submissions to the Tribunal, the applicant describes the Solicitor-General’s letter of 23 December 2020 as the “triggering event for these proceedings”.[34]
[30] Applicant’s reformulated claim filed on 16 April 2021, at paragraphs 27–29, 42(c), 43; Applicant’s ‘Response to Mr Pappas’ Submissions’ dated 12 May 2021, at paragraphs 19–23, 27, 32
[31] Exhibit R1, Tab B document 7
[32] Exhibit R1, Tab B document 10, 14, 19, 22
[33] Exhibit R1, Tab B document 24
[34] Applicant’s document titled ‘Response to Mr Pappas’ Submissions’ dated 12 May 2021, at paragraph 40
The applicant claims that the Solicitor-General was negligent in failing to properly supervise the legal practitioners working under him and in failing to advise the Public Trustee and Guardian correctly with respect to the payment of Michael’s costs and drafting and sending the 23 December 2020 letter:
…with a reckless indifference to the correctness of the information contained, or knowing that the information contain [sic] was false. This letter was sending [sic] during a period of negotiating a settlement with the expectation that the third party would rely on the false representation.[35]
[35] Applicant’s undated document titled ‘Claim against the Public Trustee and Guardian’ filed on 16 April 2021, at paragraph 8, 42(c)
The applicant also claims that the 23 December 2020 letter gives rise to a breach of section 18 of the Australian Consumer Law because:
…misrepresentations were made with a reckless indifference to truth or knowing that it was a fraudulent misrepresentation, both to their client and to a third party. The client then relied on that misrepresentation and gave instructions to force a third party to incur $3600 in direct costs and the time costs of appearing in court for a day and 7 days preparing documents.[36]
[36] Applicant’s undated document titled ‘Claim against the Public Trustee and Guardian’ filed on 16 April 2021, at paragraph 43
I understand the reference to a “third party” in both cases to mean the applicant. As noted earlier, in submissions to the Tribunal the applicant now confines his claim to the costs of preparing and filing a bill of costs, which he quantifies at $3,600.[37]
Consideration – the claim against the Public Trustee and Guardian
[37] See paragraph 26 above
The applicant sues the Public Trustee and Guardian in its capacity as administrator of his mother’s estate.
The applicant claims that the Public Trustee and Guardian was negligent in paying out of the estate amounts for his brother’s claimed legal costs that are not debts for which the estate is liable pursuant to the orders made by McWilliam AsJ on 9 August 2017.
For a claim in negligence to succeed in this case, the applicant must establish (a) that the Public Trustee and Guardian, in its capacity as administrator of the estate, owed the applicant, in his capacity as a beneficiary under the will, a duty of care at common law to avoid economic loss when paying debts for which the estate was liable; (b) the Public Trustee and Guardian breached its duty to the applicant by paying to his brother amounts for which the estate was not liable; and (c) the applicant has suffered economic loss as a result of the breach of duty, being a diminution in value of his quarter share of the estate.
In accordance with the principles applying to a summary dismissal application explained earlier in these reasons, I have assumed that the total amount paid for Michael’s claimed legal costs includes amounts for which the estate is not liable, either because some of the costs fall outside the orders made on 9 August 2017, or because some of the costs were not reasonably incurred.
The issue I must decide is whether, making that assumption, the applicant’s damages claim for negligence is maintainable at law.
The analysis must begin by identifying the nature of the applicant’s interest, if any, in the assets of the estate and the nature of the applicant’s rights in respect to the due administration of the estate.
The Public Trustee and Guardian was appointed as administrator of the mother’s estate by the Supreme Court exercising the power of appointment conferred by section 24 of the Administration and Probate Act 1929. Pursuant to section 39 of the Act, the real and personal property of the deceased vested in the Public Trustee and Guardian at that time for the purpose of carrying out the functions and duties of the administrator of the estate.
The principal duties of the Public Trustee and Guardian, as administrator of the estate, consist of paying all debts for which the estate is liable and distributing the assets of the deceased in accordance with the terms of the will.[38]
[38] J. D. Heydon and M. J. Leeming, Jacob’s Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) at [240]; see also sections 39-41C and schedule 4, part 4.1 of the Administration and Probate Act 1929
The Public Trustee and Guardian has made some interim distributions to the beneficiaries under the will but has retained significant funds against various contingencies, including with respect to claims made by the applicant.[39] The estate therefore remains an unadministered estate.
[39] Exhibit R1, Tab B document 1
In Pagels v MacDonald,[40] Latham CJ described the interests of a beneficiary under a will in the assets of the estate as follows:
Thus a beneficiary under a will does not, by reason of the will alone, obtain any title, legal or equitable, to any asset forming part of the testator’s estate. When he does obtain such a title, he obtains it as a result of the administration of the estate of the testator according to law and in accordance with the dispositions of the will.
[40] (1936) 54 CLR 519 at 526
In Official Receiver in Bankruptcy v Schultz[41] the High Court stated:
The right which any beneficiary has in an unadministered estate springs from the duty of the executor to administer the estate, to preserve the assets and to deal with them in the proper manner. Each beneficiary has an interest in seeing that the whole of the assets are treated in accordance with the executor’s duties. In that sense, the beneficiaries as a class may be said to have an interest in the entire estate. But it does not follow that each piece of property which goes to make up the estate is held on a particular trust for the beneficiary named as its intended recipient upon completion of administration: Horton v. Jones [1935] HCA 7; (1935) 53 CLR 475, at p 486. Whether or not the estate is held on a trust for the beneficiaries as a class in the usual sense in which the word “trust” is used, so as to confer a specific proprietary interest, as distinct from a general, non-specific interest, upon all beneficiaries, is not something which arises for consideration in this case.
[41] [1990] HCA 45 at [15] (per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ)
The High Court went on to state:[42]
Nevertheless, Mrs Schultz acquired upon the death of Mrs Pereira a right to have the deceased estate administered in accordance with the duties of the executors. Though not the legal or equitable owner of the assets which were the subject of the devise and bequest in her favour, she had, by virtue of the chose in action created by that devise and bequest, an expectation that the assets would pass to her upon completion of the administration, subject to their being realized to meet any outstanding liabilities and to defray the costs of administration, and an interest in respect of those assets. That interest was derived from and dependent upon the chose in action.
[42] Official Receiver in Bankruptcy v Schultz [1990] HCA 45 at [16] (per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ)
In Gonzales v Claridades[43] Mason P summarised the position as follows:
Since the estate is currently unadministered the appellant has no present right, in law or equity, to the property which it comprises (Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; [1965] AC 694, Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, Barns v Barns [2003] HCA 9, 196 ALR 65 at [50]). These cases emphasise that beneficiaries and others have equitable rights to require due administration, but that is very different from a present entitlement as the beneficiary of a vested trust of the residue or any asset comprised in the estate.
[43] [2003] NSWCA 227 at [19] (per Mason P, Beazley JA and Foster AJA agreeing); see also Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88 at [20]
It follows from these cases that the applicant does not have a legal or beneficial interest in the unadministered portion of the estate, which remains vested in the Public Trustee and Guardian for the purpose of the due performance of its duties and functions as administrator. In those circumstances, the applicant cannot be said to have suffered any loss consisting of a diminution in the value of his quarter share of the estate as a result of anything done or not done by the Public Trustee and Guardian. The value of the applicant’s share of the unadministered portion of the estate is presently undetermined and will remain so until the administration is completed. All that the applicant has at present is an equitable chose in action to compel the Public Trustee and Guardian to properly administer the estate and an expectation that upon completion of the administration he will receive his residual quarter share of the estate, whatever that may be.
Section 4 of the Trustee Act 1925 defines a ‘trust’ to include the “duties of a legal representative of a dead person”. The Dictionary for the Act provides that a trustee includes a legal representative; a ‘legal representative’ includes an executor and administrator; and an ‘administrator’ includes anyone to whom administration of the estate of a dead person is granted.
If, as I have assumed for the purposes of the application, the Public Trustee and Guardian has made payments from the estate for costs that are not debts properly payable from the estate pursuant to the orders made on 9 August 2017, the conduct of the Public Trustee and Guardian would amount to a breach of trust within the meaning of the Trustee Act 1925, for which it would be personally liable, subject to the power of the Supreme Court to relieve a trustee from personal liability in certain circumstances pursuant to section 85 of the Trustee Act 1925. Any equitable compensation which the Public Trustee and Guardian may be found liable to pay for loss caused by the breach of trust would be payable to the estate, to be applied in carrying out the remainder of the administration, and not to the applicant or the other beneficiaries whose rights also would be affected by the breach of trust.[44] As the High Court stated in Maguire & Tansey v Makaronis:[45]
…the objective of an action to recover loss upon breach of trust is the restoration of the trust fund. The right of the beneficiaries is to have the trust fund reconstituted and duly administered, rather than to recover a specific sum for the sole use and benefit of any beneficiary.
[44] Halfhide v Beaven [2003] NSWSC 1207 at [59]–[60]
[45] [1997] HCA 23; 188 CLR 449 at 473 (per Brennan CJ, Gaudron, McHugh and Gummow JJ)
To put the matter plainly, the facts on which the applicant’s claim against the Public Trustee and Guardian relies do not give rise to any reasonable cause of action for damages for breach of a common law duty of care to avoid economic loss owed to the applicant.
The application therefore does not relate to a ‘civil dispute’ within the meaning of section 16 of the ACAT Act. The tribunal’s jurisdiction to hear and decide a ‘civil dispute’ is governed by Part 4 of the ACAT Act. A ‘civil dispute’ is defined in section 16(1) of the Act to mean a dispute in relation to which a ‘civil dispute’ ‘application’ may be made. Relevantly for present purposes, this includes a ‘damages application’, which means an application for damages for negligence or for any other tort except nuisance or trespass. The exception relating to nuisance and trespass may be explained because damages often are not an adequate remedy and the primary relief granted is an injunction to restrain the nuisance or against the continuation of the trespass.[46] Although the tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under part 4.2 of the Magistrates Court Act 1930, including the power pursuant to section 258(1)(a) of the Act to grant equitable relief, and to give effect to any equitable defence, counterclaim or set-off, such powers are exercisable only where the tribunal has jurisdiction to hear and decide a civil dispute application.
[46] Although the question whether damages (even if only in a nominal amount) must be claimed for the tribunal to have jurisdiction in matters of that kind was left open by the Supreme Court in Campbell v Blackshaw [2018] ACTSC 39 at [25]–[28].
Once the true nature of the applicant’s rights is identified as an equitable chose in action to compel the due administration of the estate, it is apparent that the applicant does not have a reasonably arguable claim against the Public Trustee and Guardian for damages for negligence, and any remedy to which the applicant may be entitled may be sought only in a court of competent jurisdiction and not in the ACAT.
I am satisfied that the application, insofar as it concerns a claim against the Public Trustee and Guardian, is lacking in substance in the sense required by section 32(1)(b) of the ACAT Act and must be dismissed.
Consideration – the claim against the Government Solicitor and Solicitor-General
One of the difficulties for the respondent and the Tribunal in grappling with the applicant’s claims against the second and third respondent is his propensity to shift ground. The civil dispute application initially sought damages for negligence.[47] The reformulated claim mentioned conspiracy to cause loss, malfeasance in a public office, negligent supervision of employees, misrepresentation by employees of the Government Solicitor working under the supervision of Mr Garrisson, negligent advice to the Public Trustee and Guardian and breach of section 18 of the Australian Consumer Law, without identifying the facts on which the applicant relied to establish the essential elements of each cause of action. In submissions filed on 3 June 2021 – i.e., after I had made an order dismissing the application against the Government Solicitor and Mr Garrisson – the applicant claimed that:
The cause of action originally asserted were: -
a. The PTG in the form of Mr Burn was negligent
b. The ACTGSO and Mr Garrisson were contributorily negligent
c. Mr Burn and Mr Garrisson conduct were actions amounting to the tort of conspiracy
d. Mr Burn and Mr Garrisson conduct were actions amounting to the tort of deceit
e. Mr Garrisson conduct were actions amounting to the tort of false and misleading conduct and breaches of S18 of ACL [errors in the original]
[47] see paragraph 2 above
The common thread linking these claims is that the damage the applicant says he suffered as a result of the alleged tortious acts of the Government Solicitor and Mr Garrisson is the same. In essence, the applicant claims that those tortious acts, however described, caused the Public Trustee and Guardian to file an originating application in the ACT Supreme Court seeking an order under rule 1803 of the Court Procedures Rules 2006 that the applicant file a bill of costs in SC 57 of 2017 and PRO 513 of 2011, as a result of which he has suffered loss or damage, being the cost of preparing and filing a bill of costs, which he claims is unrecoverable.[48]
[48] Although the applicant originally claimed that his loss included “the time costs of appearing in court for a day and 7 days preparing documents” he abandoned that claim in submissions to the Tribunal – see paragraph 26 above.
The obvious impediment to the applicant’s claim is that Elkaim J granted the Public Trustee and Guardian’s application on 23 February 2021 after a contested application in which the applicant argued that he had provided sufficient particulars of his claim and should not be required to provide more.[49] The applicant also argued that the Public Trustee and Guardian had a conflict of interest, in respect of which Elkaim J said:[50]
Turning now to the conflict suggested by the defendant; as I understood the defendant, the conflict arose because if the plaintiff did not obtain the order it sought, it would be bound to pay the whole of the amount previously claimed by the defendant and would, in turn, be liable to the estate for any excess of the amount paid over what would have been the assessed amount.
I cannot see any conflict. The plaintiff is endeavouring to pay the defendant’s costs in the manner ordered by the court. It has not been able to do so because the parties have not reached any agreement as to the quantum of those costs. Accordingly, recalling that the costs must be assessed under r 1720, the plaintiff is endeavouring to achieve that purpose so that it can comply with the costs order.
Absolutely no foundation has been provided for a conclusion that the plaintiff is somehow motivated by an ulterior purpose, namely its anticipation of having to reimburse an amount of money to the estate which it represents.
[49] The Public Trustee and Guardian of the Australian Capital Territory v Dirkis [2021] ACTSC 29 at [5]
[50] The Public Trustee and Guardian of the Australian Capital Territory v Dirkis [2021] ACTSC 29 at [15]–[16]
The applicant incurred the cost of preparing and filing a bill of costs because the Court ordered him to do so. The allegation that this constitutes loss or damage caused by the respondents’ tortious acts is not maintainable for at least two reasons.
First, whatever considerations may have informed the Public Trustee and Guardian’s decision to seek an order for the filing of a bill of costs, Elkaim J found that the order was justified in all the circumstances. It is not open for the applicant to make a collateral attack on the court’s decision for the purpose of mounting a claim against the Government Solicitor and Mr Garrisson. Once it is accepted that the order was justified, as the applicant must, the necessary causal connection that must be established between the alleged tortious acts of the Government Solicitor and the Solicitor-General and the alleged loss and damage is clearly absent in this case.
Second, contrary to the applicant’s claim that he has suffered a loss because the cost is unrecoverable, rule 1734 of the Court Procedures Rules 2006 provides that the costs of a proceeding include the costs of preparing a bill of costs and attending the assessment of costs. Clearly, the applicant has not suffered a loss in complying with the order of the court. Whether he recovers all or some of the costs of preparing a bill of costs and the assessment will depend on the outcome of the assessment, which is ongoing.
I should add for completeness a further reason why the applicant’s claims in negligence against the Government Solicitor and Mr Garrisson cannot succeed. The applicant claimed that, in providing advice to the Public Trustee and Guardian in relation to matters arising out of the payment of costs pursuant to the orders of the court, the Government Solicitor and Mr Garrison owed him a duty of care. He also submitted that “when a lawyer is engaged in communication with a third party, he is effectively giving advice to the third party”. The authority for that proposition, according to the applicant was the decision in Argy & Anor v Blunts and Lane Cove Real Estate Pty Ltd.[51]
[51] Transcript of proceedings on 14 May 2021, page 18 line 22 to page 21 line 19
The applicant’s reliance on Argy is misplaced. The circumstances in Argy were that a solicitor acting for the vendor of land received an incomplete zoning certificate and, in accordance with standard conveyancing practice, annexed it to the contract for sale. The solicitor was not responsible for obtaining the certificate and did not realise that it was incomplete. The solicitor was found liable to the purchasers on the basis that, by annexing the certificate to the contract for sale, the solicitor must be taken to have represented that the certificate was issued by the council and was complete. Those circumstances are quite remote from the issues in this application.
It is certainly true that the general law of negligent misstatement can apply to a solicitor. Thus if a solicitor gives advice to a person whom they know, or should know, will rely on the advice, the solicitor assumes a duty to take proper care in giving the advice. However, that is not this case. Further, it is not correct, as the applicant seems to think, that a solicitor is giving advice whenever they are engaged in communications with a third party.
The general rule is that a lawyer acting on behalf of a client does not owe a duty of care to a person who is a non-client.[52] As Allsop P stated in David v David:
It is unnecessary to discuss the circumstances in which a solicitor may come under a duty of care in the effecting of his or her retainer to his or her client to take into account the interests of third parties. However, save for circumstances of assumption of duty (and leaving to one side knowledge of fraud), it would be an extraordinary development of the law to impose upon the solicitor a duty to take some step or give some advice to a third party that was inconsistent with the interests of his primary client.[53]
[52] G. E. Dal Pont Lawyers’ Professional Responsibility (Lawbook Co. 6th ed, 2017) at [21.10]
[53] [2009] NSWCA 8 at [92]
I am satisfied, therefore, that the claims against the Government Solicitor and Mr Garrisson are lacking in substance in the sense required by section 32(1)(b) of the ACAT Act and must be dismissed.
The respondent identified several other reasons why it submitted the claims against the Government Solicitor and Mr Garrison were not maintainable. In view of my decision, it is neither necessary nor useful to consider the further submissions.
Consideration – direction pursuant to section 32(1)(c)(ii) of the ACAT Act
The relief sought by the respondents included a direction under section 32(1)(c) of the ACAT Act that the applicant not make any subsequent application to the tribunal seeking to agitate the matters raised by him in these proceedings without the leave of the tribunal.[54]
[54] Respondent’s outline of argument dated 14 May 2021, paragraph 40
After hearing from the parties on 17 June 2021, it appeared to me that the following considerations were relevant.
First, the claims the applicant has made to date in these proceedings are lacking in substance. Although the applicant is legally qualified, is admitted as a legal practitioner in the ACT and has held a practising certificate in the ACT, albeit briefly, his approach to dealing with the issues on the hearing of the respondents’ applications demonstrates a lack of even a basic understanding of relevant legal principles including the concept of relevance.
Second, during the hearing of the first respondent’s summary dismissal application, the applicant sought leave to amend his claim to include a new claim against a partner of Moray & Agnew and former employed solicitor who had acted for Michael Dirkis in the probate and removal proceedings, asserting that they were negligent in acting for Michael Dirkis and were responsible for incurring costs that the applicant claims should not have been paid out of the estate. The applicant claimed that the solicitors owed him a duty of care, notwithstanding they were retained by another party to proceedings who was not in the same interest as the applicant. On the face of it, the claim appears to be misconceived for the reasons I explained in paragraphs [60]–[63]. I refused to entertain the application given that the issue was whether the proceedings against the Public Trustee and Guardian, in their current form, should be dismissed as lacking in substance. However, the possibility that the applicant may seek to bring further claims against third parties arising out of the same or similar circumstances cannot be ignored.
Third, in correspondence that forms part of the evidence in Exhibit R1, the applicant has impugned the competence, honesty, integrity and professional conduct of persons connected with the administration of the estate and the earlier court proceedings in a way that, if done by a practising member of the legal profession, would likely result in a complaint to the Council of the Law Society of the ACT. There is considerable force in the respondent’s submission that the general tenor of the correspondence tends to suggest that the applicant has embarked upon a campaign of vilification of Mr Garrison and members of the staff of the Government solicitor.[55]
[55] Transcript of proceedings on 14 May 2021, page 15, lines 27–33
Fourth, the fact that the tribunal is a no costs jurisdiction is highly significant. The usual disincentive for a party to refrain from bringing proceedings that are vexatious or oppressive, lacking in substance or are otherwise an abuse of process – namely, the risk of an adverse costs order – does not apply to proceedings in the tribunal. As the history of this application illustrates, the legal costs that a respondent may incur in successfully moving the tribunal to dismiss a claim summarily under section 32 of the ACAT Act may be substantial. In this case there were several directions hearings in which the respondents were legally represented and the summary dismissal applications were heard over two days, requiring detailed written submissions to be prepared in advance of the hearings and with the respondents being represented on both occasions by a senior solicitor and experienced counsel. Causing a respondent to incur the inconvenience and cost of bringing a summary dismissal application, even if the result is favourable to the respondent, may represent a victory of sorts for an applicant motivated by a desire to seek vindication or retribution for a perceived wrong.
Finally, on the other side of the ledger, the applicant is entitled to invoke the tribunal’s civil dispute jurisdiction in an appropriate matter and, in circumstances where he has not been declared a vexatious litigant, it is important that he not be unduly constrained in exercising his rights.
In my view, the appropriate balance is achieved by directing that the applicant not make any subsequent application against any person relating to, arising out of, or in any way connected with the administration of the applicant’s mother’s estate without prior leave of the tribunal and without giving the Public Trustee and Guardian seven days prior notice in writing.
………………………………..
Senior Member M Orlov
| Date(s) of hearing | 14 May 2021 & 17 June 2021 |
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Pappas |
| Solicitors for the Respondent: | Mr R McCrone, ACT Government Solicitor |
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