Dirkis v Public Trustee & Guardian (Civil Dispute)
[2021] ACAT 30
•16 February 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DIRKIS v PUBLIC TRUSTEE & GUARDIAN (Civil Dispute) [2021] ACAT 30
XD 700/2020
Catchwords: CIVIL DISPUTE – allegation that respondent was negligent or engaged in misleading or deceptive conduct in failing to advise that Public Trustee and Guardian’s refusal to accept an appointment as administrator of an estate could be ‘overridden’ by order of a court – negligence and misleading or deceptive conduct not established – causation not established – loss not established – discussion of status of Chorley exception after the decision of the High Court in Bell Lawyers v Pentelow
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 18
Administration and Probate Act 1929 s 32
Legal Profession Act 2006 ss 269, 271, 275, 282, 289, 290,
389
Public Trustee and Guardian Act 1985 ss 5, 6, 8, 13
Cases cited:Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
List of
Texts cited:R. P. Balkin and J. L. R. Davis, Law of Torts, (LexisNexis Butterworths, 4th Ed, 2009)
Russell V. Miller Miller’s Australian Competition and Consumer Law Annotated, (Lawbook Co, 41st Ed, 2019)
Tribunal: Senior Member M Orlov
Date of Orders: 16 February 2021
Date of Reasons for Decision: 16 April 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 700/2020
BETWEEN:
PAUL VITSAS DIRKIS
Applicant
AND:
PUBLIC TRUSTEE & GUARDIAN
Respondent
TRIBUNAL: Senior Member M Orlov
DATE:16 February 2021
ORDER
The Tribunal orders that:
The application is dismissed.
………Signed………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction
The applicant and his brother, at material times, were the executors of their mother’s estate. In early March 2017, their sister brought proceedings in the Supreme Court of the Australian Capital Territory pursuant to section 32 of the Administration and Probate Act 1929 seeking orders for the removal of the executors as “unfit to act in the office” and for herself or another person to be appointed as administrator (the removal proceedings). On 24 April 2017, the applicant telephoned the respondent seeking advice, including to ascertain whether the respondent was prepared to accept an appointment as executor of the estate. The respondent informed the applicant that it was unable to do so because the executors had intermeddled[1] in the estate but advised that the respondent could act as trustee for the sale of the mother’s house, which was the estate’s main remaining asset. The removal proceedings settled on 9 August 2017 when orders were made by consent removing the executors and appointing the respondent as administrator in their place. After a contested hearing on costs, the court ordered that the costs of all parties should be paid out of the estate on an indemnity basis.[2]
[1] ‘Intermeddling’ is a legal term used to describe circumstances where the executor or executors have already commenced to deal with the estate. It does not carry any pejorative connotations.
[2] Exhibit 7 Annexure K page 49 line 22-24
The applicant claims that the respondent failed to advise him on 24 April 2017 that the court could “override” the respondent’s refusal to accept an appointment as executor in circumstances where the respondent would be expected to provide him with such advice. As a result, the applicant claims he lost the opportunity to make a Calderbank offer that would have resulted in the proceedings being settled by consent on 5 May 2017, avoiding most of the costs of the proceedings.[3] As the court ordered that the parties’ costs should be paid out the estate, the applicant claims that the value of his share in the estate has diminished as a result. He claims the diminution in the value of his share as loss caused by the respondent’s negligent or misleading or deceptive conduct, limited to the amount of $25,000, reflecting the extent of the tribunal’s jurisdiction in civil dispute applications under section 18 of the ACT Civil and Administrative Tribunal Act 2008.
[3] Civil dispute application paragraphs 28, 29
I heard the application over two days on 15 and 16 February 2021. The applicant tendered some documents[4] and provided a statement,[5] which I directed should stand as his evidence in chief, and was cross-examined. The respondent tendered a number of documents[6] and relied on statements from Mr Gregory Burn,[7] a Deputy Public Trustee and Guardian, and Mr Stephen Kellett,[8] a public servant employed in the Wills, Estate and Trust Unit of the respondent, both of whom were cross-examined.
[4] Exhibit A and C
[5] Exhibit B
[6] Exhibits 1, 2, 3, 4, 5, 6, 8, 9 and 10
[7] Exhibit 7
[8] Exhibit 11
At the conclusion of oral addresses on 16 February 2021 I dismissed the application in the following terms:[9]
In this matter the applicant Paul Dirkis, claim damages against the Public Trustee and Guardian for misleading or deceptive conduct, negligent misstatement, or alternatively, negligence. Although the basis of the claim was originally set out in a civil dispute application in the ordinary course, during the interlocutory stages a request for particulars was made by the solicitors for the respondent and answered by the applicant. Both the request and the response is in evidence as Exhibit 6. The significance of that document is that it sets out considerably more fulsomely and in a more structured way the basis of Mr Dirkis’ claims against the Public Trustee and Guardian.
I am satisfied, having heard and read the evidence, that the conduct of the respondent about which the applicant complains was not misleading or deceptive and did not involve negligence, whether characterised as negligent misstatement or simply negligence. I am satisfied also that the applicant has failed to establish any of the loss or damage he claims to have suffered as a result of the alleged conduct. Accordingly, I order that the application is dismissed. I will deliver my detailed reasons in writing at a later date.
[9] Transcript of proceedings 16 February 2021 pages 201-202
These are my reasons.
The statutory context in which the issues arise
The respondent is a corporation sole by the name of the Public Trustee and Guardian established under section 8(1) of the Public Trustee and Guardian Act 1985 (PTG Act) and can sue and be sued in its corporate name.
Pursuant to section 5, the Public Trustee and Guardian is the person exercising the functions of the public trustee and guardian, however described, in the public service. Pursuant to section 6(1), the director-general may appoint one or more public servants as a deputy public trustee and guardian.
Section 13 of the PTG Act states:
(1) Subject to this Act, the public trustee and guardian may be appointed and act under that name as –
(a) a trustee; or
(b)an executor or administrator, including administrator pendente lite; or
(c)a collector of an estate of a person under an order to collect and administer that estate; or
(d)a receiver; or
(e)an agent or attorney; or
(f)a manager of property, whether real or personal; or
(g)a guardian of the estate of any person; or
(h)a guardian or manager for a person if appointed by the ACAT.
(2) Subject to this Act, the public trustee and guardian may become (whether by election or otherwise) and may act under that name as a manager of property, whether real or personal.
(3) The public trustee and guardian shall not accept a trust established exclusively or primarily for religious purposes.
(4) The public trustee and guardian may decline to accept, or accept subject to such conditions as the public trustee and guardian thinks fit, a trust or an appointment to act in any capacity.
(5) The public trustee and guardian is not entitled to exercise a power under subsection (4) –
(a)in relation to a trust that devolves on the public trustee and guardian or an appointment of the public trustee and guardian that is made specifically by law; or
(b)in relation to an appointment that was made by order of the court; or
(c)on the grounds only of the small value of the relevant property or estate.
Sections 13(1)(b), 13(4) and 13(5)(b) are important. Relevantly:
(a)Subsection (1)(b) authorises the Public Trustee and Guardian to be appointed and act as an executor or administrator of an estate.
(b)Subsection (4) authorises the Public Trustee and Guardian to decline to accept such an appointment subject to the exceptions in subsection (5).
(c)Subsection (5)(b) precludes the Public Trustee and Guardian from refusing to accept an appointment as executor or administrator of an estate where that appointment was made by order of the court.
This application concerns advice given by the respondent on 24 April 2017 in connection with the respondent’s refusal to accept an appointment as administrator of an estate at a time when proceedings for the removal and replacement of the executors of the estate had been commenced in the Supreme Court of the ACT but no order appointing the Public Trustee and Guardian as administrator had been made and no order to that effect had been sought.
The applicant does not contend that the Public Trustee and Guardian acted without power in refusing to accept such an appointment on 24 April 2017, or that the stated reason for the refusal – namely that the executors had intermeddled in the estate – was not a legitimate ground for doing so.
The critical issue is whether, in the events that happened, the Public Trustee and Guardian came under a duty at common law, or was otherwise required, to advise the applicant on 24 April 2017 that the Public Trustee and Guardian’s refusal to accept an appointment could be circumvented by an application for the Supreme Court to make an order appointing the Public Trustee and Guardian as administrator of the estate.
An order of that kind could be made only under section 32 of the Administration and Probate Act 1929 and only if the preconditions in subsection (2) were satisfied – relevantly, that the executors wanted to be discharged from the office of executor or, after the grant of representation, refused or were unfit to act in the office, or were incapable of doing so.
It was therefore essential for the applicant to prove that in seeking the respondent’s advice on 24 April 2017, the applicant informed the respondent that there were proceedings on foot to remove and replace him and his brother as executors of their mothers’ estate, so as to make it apparent to the respondent that the applicant was seeking the respondent’s advice about his options in those circumstances.
The facts
The applicant’s mother, the late Kathleen Mary Dirkis, died on 21 September 2009. By her will dated 11 April 1991,[10] the mother appointed the applicant and his brother, Michael Dirkis, as executors of her estate. The will provided for the estate to be divided equally between her four children, Paul, Michael, John, and Aurora.
[10] Exhibit 7 Annexure B
The applicant and Michael Dirkis were granted probate of the will on 4 October 2011.[11]
[11] Exhibit 7 Annexure C
On 3 March 2017, Aurora commenced proceedings number SC 58 of 2017 in the Supreme Court of the Australian Capital Territory claiming that her brothers, Paul and Michael, were unfit to act in the office of executor within the meaning of section 32(2)(c)(ii) of the Administration and Probate Act 1929, and seeking orders for their removal as executors and for herself, or alternatively, another person named Sue Anne Barrow, to be appointed as administrator of the estate, and certain consequential orders.[12]
[12] Exhibit A document C2
On 31 March 2017, the applicant emailed Aurora’s solicitor, Lisa Barlin, then a partner of Aulich Civil Law, outlining a proposal to appoint an alternative trustee:[13]
[13] Exhibit 3
I propose the alternative trustee be appointed as either:-
1)a third trustee to break dead locks between the two existing trustees,
2)replacing the two trustees without the allegation of “unfitness”
I have a list of potential trustees:-
1)Charles Nielson – retired Lawyers
2)Matthew Lawrence – Administered 2 estates (his wifes and his Mother in laws)
3)Vida Roberts – Auroras sister in law
4)The public trustee
This offer remains open for acceptance until 4.00pm on 4th April 2017 after which time it will lapse.
I am happy to consider any other potential trustee your client would like to put forward.
If the offer is not accepted within the period referred to above, I will rely on this letter on the issue of costs in connection with any subsequent Court proceedings and any professional misconduct hearings against you. [Errors in the original]
The proceedings were listed for directions on 4 April 2017. The applicant admitted that Ms Barlin rejected the offer “out of hand” on that occasion.[14]
[14] Exhibit B paragraph 23; transcript 15 February 2021 page 60 line 36 to page 62 line 8 and page 85 lines 42-46
The applicant accepted that one of the alternatives identified in the offer – namely, replacing the two trustees without any finding of ‘unfitness’ and the appointment of the public trustee in their place – essentially reflects what happened when the proceedings were settled on 9 August 2017.
On the morning of 24 April 2017, the applicant telephoned the Wills, Estate and Trust Unit of the respondent. The purpose of the call was to ascertain whether the Public Trustee and Guardian would accept an appointment as executor of the mother’s estate. The applicant spoke with Mr Gregory Burn. Mr Burn is a senior public servant and at all material time held an appointment as Deputy Public Trustee and Guardian. The telephone call lasted about 10 minutes.[15] Later the same day Mr Burn confirmed the substance of the conversation in an email to the applicant.
[15] Exhibit 7 Annexure D, transcript of proceedings 15 February 2021, page 128 lines 39-42
The details of the conversation are disputed, particularly what the applicant said to Mr Burn about the proceedings in which the applicant was then involved.
Mr Burn prepared a contemporaneous file note of the conversation, recording the following:[16]
[16] Exhibit 7, Annexure D
Mum died 7 years ago
He + brother
haveare executorsDisagreement + court action concerning treatment of house (mum’s residence)
All estate left to 4 children
No agreement on sale of house / to whom / whether should be transmitted / value
Also shares + cash of $70K. House $560K
What can we do? Can we take over
aas executors?No cant act as executors. Could act as trustee of house on sale / transfer. I’ll send email.
Discussed liability CGT
Later that afternoon, Mr Burn said in an email to the applicant:[17]
[17] Exhibit 7, Annexure E
Hello Paul
Thank you for your call this morning.
In the circumstances we are unable to take over as executor. That’s because you and your brother, as executors, have “intermeddled” in the estate, that is you have already made decisions and dealt with aspects of the estate.
We can however act as trustee in relation to the house. Either you and your brother agree as executors that the house is to be dealt with us as trustee or if there is no agreement, the court appoints us as trustee .
Our role is then limited to selling the house and paying the net proceeds to the estate. Our obligation as trustee is to get the best price for the property. That does not necessarily mean, sale by public auction but if it’s not sold at auction, we need to have clear and independent evidence of value. Normally that would mean an independent valuation, two agent appraisal’s and the recommendations of the selling agent.
It’s important to understand that once we are appointed as trustee we act independently and in a manner that we determine is in the best interests of the trust in securing the best value in the circumstances.
Our fees as trustee are:
·A one off commission of 1.1% on the gross value of the property
·An annual trust administration fee of $117.00
·A fee charged on each lodgement of a trust tax return – $270.00
·Out of pocket expenses including conveyance fees, agents fees, valuation, pest and building report, possibly costs of any necessary repairs or maintenance.
·Legal costs if for some reason we were involved in Court proceedings.
Let me know if we can assist.
Separately to that, we very briefly discussed CGT. Before making a distribution, it would be prudent to get taxation advice on whether the distribution effects who is liable to pay the CGT liability – the estate or the beneficiaries. Seven years has passed so the critical date may already have been reached and all income is assessable in the hands of the beneficiaries. Worth checking though as the estate has a tax free threshold of $18k and that may absorb any tax liability associated with the sale of the property [errors in original].
The next day, the applicant sent an email thanking Mr Burn for his advice.[18]
[18] Exhibit 7 Annexure F
The diary notes recording the effect of the applicant’s question to Mr Burn –“What can we do? Can we take over as executors?” – makes it abundantly clear that the applicant was seeking Mr Burn’s advice about the applicant’s options in the circumstances recorded in the earlier part of the diary note. The factual contest was about whether the applicant told Mr Burn that the proceedings in the Supreme Court sought his and his brother’s removal and replacement as executors of their mother’s estate.
Mr Burn’s witness statement said:[19]
15. During the telephone conversation, the Applicant provided me with a short background of the administration of the Deceased’s estate. The Applicant informed me that he was involved in litigation with his siblings regarding the sale of the Deceased’s residence. The Applicant did not provide me with any details of that litigation beyond its general nature.
16. The Applicant enquired whether the Respondent would act as administrator of the Deceased’s estate. Given the executor’s dealings with the Deceased’s residence, I advised the Applicant that the Respondent would not take on the administration of the Deceased’s estate because, the Applicant and Michael had intermeddled in the estate of the Deceased. I informed the Applicant that the Respondent would decline to act as administrator of estates where it was apparent that there had been intermeddling by executors.
17. During the telephone discussion with the Applicant I informed him that the Respondent could act as trustee in relation to the sale of the Deceased’s residence.
[19] Exhibit 7
In his oral evidence in chief, Mr Burn said that he did not leave out of his email any relevant part of the conversation with the applicant.[20]
[20] Transcript of proceedings 15 February 2021, page 129 line 47 – page 130 line 1
Mr Burn was cross examined. Critically, the applicant failed to challenge Mr Burn’s version of the conversation, including that the file note and email were incomplete or inaccurate in a material respect. Nor did the applicant put to Mr Burn his own version of what he claims was said, to which I refer below. The failure to do so is of particular significance because both I and respondent’s counsel reminded the applicant of the importance of doing so[21] and because, although the applicant was self-represented, he is admitted as a legal practitioner in the ACT and has practised as a solicitor, albeit briefly, as I explain later.[22]
[21] Transcript of proceedings 16 February 2021, page 165 lines 24-47
[22] Transcript of proceedings 15 February 2021, page 55 lines 20-40
The applicant gave several versions of the conversation with Mr Burn, commencing in paragraph 12 of the civil dispute application, in which he said:
On the 24 April 2017 contacted the Public Trustee and spoke to Mr Burn in great detail about the situation. He knew his appointment would always by a court order [errors in the original]
In his answer to the respondent’s request for particulars, the applicant asserted:
In particular, the PTAG was fully informed that there were legal proceeding a foot and I would could [sic] to defend the proceedings and seek to have my co-executor removed as he had declined to take on the role.[23]
[23] Exhibit 6 answer (2)(d)
In his written statement the applicant said:
On 24 April 2017, I contacted the Public Trustee Office, and spoke to Mr Burn, indicating that my sister was seeking to remove my Brother and I, and would they consent to be appointed, He indicated that they would not take it on and followed with the email (A1).[24] [errors in the original]
[24] Exhibit B paragraph 26
The applicant did not prepare a contemporaneous note of the conversation.
The applicant gave the following evidence to the Tribunal:
Mr Pappas – When you rang Mr Burn what did you say to him?
Mr Dirkis – I said there was a legal dispute between my – words to the effect that basically there was a legal dispute involving my brother and my – me and my brother and my siblings and they wanted me removed. Basically wanted us to be removed as trustees and would he be willing to take on the role of – the gist of it would have been does the Public Trustee have the power to decline and would he be – if he has the power to decline, would he take it on and I gave him a few snippets of what I thought was relevant at the time about the dispute about the sale of the house and, to my surprise, he wrote back to me – well, he said no over the phone, which was a surprise to me, and then I had to rethink my approach to the litigation.
Although the applicant’s answers often were nonresponsive, deliberately evasive, or argumentative,[25] eventually the applicant was driven to make the following concessions:
[25] See e.g. the applicant’s cross-examination about his assertion that Mr Burn always knew that there was litigation on foot to have the applicant removed as executor and that the Public Trustee and Guardian’s appointment would be by court order - transcript of proceedings 15 February 2021, page 87, line 25 to page 93, line 45
(a)He did not tell Mr Burn that litigation was on foot to remove him as trustee.[26]
[26] Transcript of proceedings 15 February 2021, page 66 lines10-24; page 89 lines 42-46; page 90 line 23 to page 92 line 19
(b)He did not ask Mr Burn whether the Public Trustee and Guardian had power to decline an appointment.[27]
[27] Transcript of proceedings 15 February 2021, page 69 lines 20-34; page 71 lines 4-7
(c)He did not say to Mr Burn, “If you do have the power to decline, will you take it on anyhow?”[28]
(d)He never asked Mr Burn what the extent of the Public Trustee and Guardian’s powers were.[29]
(e)He told Mr Burn there was a court action arising from disagreement concerning the treatment of his mother’s home.[30]
(f)He told Mr Burn that the entire estate had been left to four children.[31]
(g)He told Mr Burn that his mother had died seven years earlier.[32]
(h)He told Mr Burn about the disagreement concerning the treatment of the house that was his mother’s former residence.[33]
(i)He told Mr Burn there was no agreement on the sale of the house and gave examples.[34]
(j)He told Mr Burn his mother’s estate also consisted of shares and cash worth about $70,000 and that the house was worth about $560,000.[35]
(k)He asked Mr Burn whether the Public Trustee and Guardian could take over as executor, to which Mr Burn said no, because the applicant and his brother had intermeddled in the estate, but that the Public Trustee and Guardian could possibly act as trustee for the sale of the house.[36]
(l)Mr Burn forewarned the applicant of a potential capital gains tax liability because of the sale of the property.[37]
[28] Transcript of proceedings 15 February 2021, page 71 lines 38-41; page 72 lines 1-13
[29] Transcript of proceedings 15 February 2021, page 74 lines 11-36
[30] Transcript of proceedings 15 February 2021, page 76 lines 7-25
[31] Transcript of proceedings 15 February 2021, page 76 lines 27-38; page 77, lines 28-36
[32] Transcript of proceedings 15 February 2021, page 77 lines 13-20
[33] Transcript of proceedings 15 February 2021, page 77 lines 22-26
[34] Transcript of proceedings 15 February 2021, page 77 lines 38 to page 78 line 11
[35] Transcript of proceedings 15 February 2021, page 78 lines 14-22
[36] Transcript of proceedings 15 February 2021, page 78 lines 24-37
[37] Transcript of proceedings 15 February 2021, page 78 lines 39-42
It is appropriate to say something at this point about the applicant’s credit. The respondent mounted a significant attack on the applicant’s truthfulness and honesty, which in my view was justified. His evidence generally, both written and oral, in my view was self-serving and lacked candour and, as I explain later, in important respects was not truthful.
I make the following findings:
(a)The telephone conversation on 24 April 2017 was substantially to the effect recorded in Mr Burn file note and email of that date. Nothing of significance that was discussed on that occasion was omitted from Mr Burn email. To the extent that the applicant’s evidence suggests otherwise, I reject his evidence.
(b)The applicant mislead Mr Burn by telling him that the court action in which he was then involved concerned a dispute about the treatment of his mother’s house. He did not tell Mr Burn that orders were sought for his and his brother’s removal as executors and for the appointment of an administrator to his mother’s estate. There was nothing said on that occasion that alerted, or should have alerted, Mr Burn to that possibility when he gave advice in response to the applicant’s questions – “What can we do? Can we take over as executors?”.
(c)In asking Mr Burn “What can we do? Can we take over as executors?” the applicant was seeking specific advice about his options in the context of court proceedings having been commenced concerning the treatment of his mother’s house.
(d)There is no basis for the applicant’s claim in paragraph 24 of the civil dispute application, that Mr Burn “knew his appointment would always be by court order”.[38]
(e)On the contrary, the applicant’s request for advice did not require Mr Burn to say anything on the subject of whether the Public Trustee and Guardian’s refusal to accept an appointment as executor of the mother’s estate may be overridden by an order of the court. In the context of what the applicant said to Mr Burn about the nature of the court action in which the applicant was then involved, that issue did not arise, either directly or indirectly, as a matter about which Mr Burn should have advised the applicant.
[38] See transcript of proceedings 15 February 2021, page 92 line 27 to page 93 line 45
On 27 April 2017, Ms Barlin telephoned the respondent and spoke with Mr Stephen Kellett regarding obtaining the consent of the Public Trustee and Guardian to accept a court appointment as administrator of the mother’s estate. According to a letter that Ms Barlin wrote to Mr Burn on 19 September 2017, Mr Kellett advised her that consent was not necessary but that she nevertheless wrote to the Deputy Public Trustee and Guardian on 28 April 2017 requesting confirmation of a willingness to act if appointed by the court.[39] Mr Kellett could not recall the conversation but gave evidence that his usual practice when receiving enquiries of that type was to advise the solicitor that the respondent’s consent to be named in an application was not necessary, but to ask the solicitor to serve the respondent with a sealed copy of any application or otherwise to advise the respondent of the next court date so that a solicitor may appear on behalf of the respondent. [40]
[39] Exhibit 11 Annexure B
[40] Exhibit 11 paragraph 11
I have no reason to doubt Mr Kellett’s evidence or that Ms Barlin had a conversation with him by telephone on 27 April 2017 to the effect referred to in her letter to Mr Burn.
Because the applicant says that 5 May 2017 is the date on which the proceedings would have settled if he had been able to make a Calderbank offer proposing the appointment of the Public Trustee and Guardian as administrator, it is appropriate to reproduce the text of Ms Barlin’s letter to Mr Burn dated 28 April 2017, which she wrote to him in his capacity as Deputy Public Trustee and Guardian:
We act on behalf of Mrs Aurora Andruska, a beneficiary of her late mother’s estate and the plaintiff in a matter before the ACT Supreme Court.
We enclose a sealed copy of our client’s originating application dated 3 March 2017. You will note that our client is attempting to remove her brothers, the current joint executors of her late mother’s estate and seeks a replacement administrator given the substantial delay of almost 8 years to administer a reasonably modest state.
In the first instance, our client has nominated herself, or in the alternative, Susan Ann Barrow to act as the administrator of this estate. We are instructed to seek the Public Trustee and Guardian’s consent to be nominated as a further alternative administrator in the event the Court believes this is the appropriate course for the proper administration of this estate. Although we understand that it is not necessary to obtain the public trustee and Guardian’s consent, we would be grateful if your office could indicate a willingness to act should the Court order so.
Mr Burn did not recall seeing the letter at the time but said in his evidence that it was not unusual for correspondence to be addressed to him but to be actioned by another staff member. He recalled becoming aware of the letter later and speaking with Mr Kellett about it, but could not recall when that happened. Mr Burn said that it was common for the respondent to receive written enquiries requesting the respondent to act as administrator of an estate or enquiring about the respondent’s estate administration services. In any given year there may be between 100 and 150 such enquiries. Mr Burn lack of recollection is not surprising in those circumstances.[41]
[41] Exhibit 7 paragraphs 23-27
Mr Burn also said that ordinarily, if a party to litigation seeks to appoint the respondent as administrator of an estate, the respondent will receive a sealed application seeking such orders, or will be advised by the solicitors of the relevant court date so that the respondent may appear and be heard in relation to the appointment.[42]
[42] Exhibit 7 paragraph 28
On 28 April 2017, Ms Barlin wrote to the applicant and the solicitors representing Michael Dirkis giving notice of an oral application to amend the orders sought in the originating application to provide for the appointment of the Public Trustee and Guardian as a possible alternate administrator in place of the current executors. An application of that kind was foreshadowed during the directions hearing on 21 April 2017 before Acting Justice Walmsley.[43] Although there was no direct evidence on the subject, I infer from the applicant’s focus on 5 May 2017, as the date on which the proceedings would have settled by consent, that there must have been a directions hearing on that date at which the application was dealt with.
[43] Exhibit C
On 18 May 2017, the applicant sent a Calderbank letter to Ms Barlin proposing that a person named Matthew Lawrence be appointed as the alternative trustee and that costs to date be borne by the parties.[44]
[44] Exhibit 4
On 22 May 2017, the applicant sent a Calderbank letter to the solicitors for Michael Dirkis proposing that Michael relinquish his position as executor and that his costs to the value of $1,500, from the date of service of the application to 19 May 2017, be borne by the estate.
Both offers were expressed to remain open until 20 June 2017.
Although the applicant claimed initially that between 24 April 2017 and 30 July 2017 he sent “numerous Calderbank offers nominating alternative administrators”,[45] he later conceded that he sent only two such letters – on 19 and 22 May 2017.[46] Neither offer was accepted.
[45] Exhibit B paragraph 29
[46] Transcript of proceedings 15 February 2021, page 59 lines 17-19
The removal proceedings were listed for hearing before Associate Justice McWilliam on 9 August 2017 with an estimate of one and a half days.[47] The proceedings were resolved by agreement on the day, except in relation to costs. After hearing argument in relation to costs, Her Honour made orders in the removal proceedings as follows:
1. By consent, Paul Vytis Dirkis and Michael James be removed as the executors of the estate of the late Kathleen Mary Dirkis;
2. By consent, the Public Trustee and Guardian for the Australian Capital Territory be appointed as the administrator of the estate of the late Kathleen Mary Dirkis;
3. The costs of the Plaintiff, First Defendant and Second Defendant be paid out of the estate on an indemnity basis; and
4. The Amended Application in Proceedings dated 27 July 2017 be dismissed with no order as to costs.[48]
[47] Exhibit 7 Annexure K, page 48 lines 39-41
[48] Exhibit 11 Annexure A
Her Honour directed that the same orders be made in the probate proceedings P513 of 2011. [49]
[49] Exhibit 7 Annexure K, page 51 lines 10-14
The effect of Her Honour’s orders therefore was that the parties’ costs of both the removal proceedings and the probate proceedings should be paid out of the estate on an indemnity basis.
The hearing on 9 April 2017 took place without the Public Trustee and Guardian being given notice of the hearing and an opportunity to appear and be heard on the issue of its appointment.[50]
[50] Exhibit A documents A4, A5
Whilst one can only speculate about what may have happened if the Public Trustee and Guardian had appeared on that occasion, I accept Mr Burn evidence that although intermeddling by the executors is normally an important consideration in his decision whether the Public Trustee and Guardian should accept an appointment as administrator of an estate, in a practical sense such a consideration probably would not influence the court’s decision to make an order appointing the Public Trustee and Guardian as administrator.[51]
The applicant’s claim that he has suffered a loss
[51] Transcript of proceedings 16 February 2021, page 156 line 14 to page 157 line 17
In his civil dispute application, the applicant claims that legal costs in the Supreme Court proceedings totalled $220,000 on an indemnity basis. He claims that “one cannot time slice and [sic] indemnity-based cost order and the loss is the full amount” and that if consent orders had been made on 5 May 2017 one “cannot predict how the costs would have been attributed”. However, he said that if the Tribunal “chooses to time slice the cost” and the matter had been settled on 5 May 2017, some $180,000 in legal costs would have been avoided. Accordingly, the applicant claims that the value of his quarter share of the estate was reduced by $45,000.[52]
[52] Civil dispute application paragraphs 26 to 30
In his answer to the respondent’s request for particulars the applicant claimed:
I incurred direct legal costs and indirect indemnity costs, that would have been avoided if the PTAG had provided the correct information.
He also said:
[T]he basis on which I assert that my loss
a My costs amounting as per invoices attachments B1-2
b My share of the estate has been reduced by $45,000
See Attachments B1-2.[53]
[53] Exhibit 6, answer (3) under the heading ‘Loss”
Attachment B1[54] is an unsigned invoice purporting to be from a solicitor, John O’Keefe, to the applicant dated 8 November 2017, claiming payment of $44,000 including GST for legal services described as “To our costs in providing advice and assistance with your mother’s estate as per fixed fee arrangement”. The applicant claimed that he “asked John to produce the invoice because I required it to recover my indemnity costs”.[55]
[54] Copies of which form part of exhibit A, exhibit 6 and exhibit 10
[55] Transcript of proceedings 15 February 2021, page 100 lines 18-19
Attachment B2 is an undated and unsigned document in the form of an invoice in the amount of $96,873 for services apparently provided by the applicant. The invoice is not addressed to any person but bears a note at the bottom directing that all cheques should be made payable to Paul Dirkis.
In his statement dated 11 January 2021, the applicant described his losses as follows:[56]
My losses come in two parts:-
a)Direct expense prior to the application to be paid under cost order, ($110,000) and
b)My one quarter share [sic] costs the estate was forced to pay ($55,000).
Due to the limited jurisdiction, only my costs in a) will be covered.
90% of my expenses [sic] (a) were incurred after the 24 April 2017, while 75% of the indemnity costs were incurred after the 24 April 2017.
Documents labelled B1 and B2, outline the expenses I have incurred.
[56] Exhibit B, paragraphs 35-38
In his oral evidence in chief, the applicant amended the abovementioned amount of $110,000 to “approximately $140,000”.[57] The revised amount appears to reflect the total of the “expenses” outlined in documents B1 and B2 ($44,000 plus $96,873).
[57] Transcript of proceedings 15 February 2021, page 12 lines 40-44
On 23 September 2019, the applicant served on the Public Trustee and Guardian what he described as the “first two of three” claims for payment of indemnity costs.[58] The first ‘claim’ was for an amount of $605 paid by the applicant to Dobinson Davey Clifford Simpson Lawyers, on 24 March 2017. The second ‘claim’ was for payment of Mr O’Keefe’s invoice for $44,000 mentioned earlier I will refer to this invoice as ‘document B1’.
[58] Exhibit 10
The third ‘claim’ was not in evidence. However, it was common ground that the third claim is constituted by a document similar in form and content to the earlier mentioned document which is attachment B2 to the applicant’s response to the respondent’s request for particulars[59] I will refer to this document as ‘document B2’. In cross-examination, the applicant retracted the evidence in paragraph 48 of his statement,[60] that document B2 “outline[s] the expenses I have incurred”, and described document B2 as his estimate of the time he spent working on the matter, which he valued at $96,843.[61] He denied that the amount was grossly inflated.[62] The applicant later confirmed that document B2 was correctly described as an invoice. He characterised it as an invoice for his time spent on the matter and that the statement “Make all cheques payable to Paul Dirkis” was directed to the Public Trustee and Guardian.[63]
[59] Transcript of proceedings 16 February 2021, page 138 line 40 to page 139 line 6
[60] Exhibit B
[61] Transcript of proceedings 16 February 2021, page 115 line 42 page 117
[62] Transcript of proceedings 15 February 2021, page 117 lines 28-35
[63] Transcript of proceedings 15 February 2021, page 123 line 8 to page 124 line 12
Document B2 includes claims, among other things, for:
(a)work done in 2013[64] [item #1];
(b)other work that appears to predate or is unrelated to the removal proceedings [item #2, 3 and 4];
(c)sixteen hours of work at a cost of $4,800 to draft two Calderbank offers [item #5];
(d)One hundred and twenty hours of work at a cost of $36,000 to prepare three affidavits, where the time is said to be “based on President of law sociteies [sic] estimate” [item # 9];
(e)a further 16 hours work at a cost of $4,800 to prepare a further affidavit [item #10];
(f)Eight hours work at a cost of $2,400 for “Prepatration [sic] and Attendance at ACAT” [item #12];
(g)Sixteen hours work charged at $400 per hour ($6,400) for “Attandenace [sic] at Court 8 August & preparation” [item #13];
(h)barrister’s fee of $3,300 [second item #12] which presumably relates to fees charged by Ms Irving who appeared for the applicant at the hearing before McWilliam AsJ on 9 August 2017; and
(i)Twenty hours work at a cost of $6,000 for “Attandenace [sic] @ 5 hearings”.
[64] Transcript of proceedings 15 February 2021, page 112 line 29 to page 113
The applicant did not provide any evidence to support or justify the claims in document B2. There is no basis upon which the Tribunal can determine which ‘costs’ relate to the probate proceedings and which ‘costs’ relate to the removal proceedings, nor what proportion of the ‘costs’ relating to the removal proceedings are for work done after the date when the applicant claims the removal proceedings should have settled.
As mentioned, one of the claims is for an amount of $4,800 for 16 hours work, charged at $300 per hour to draft the two Calderbank offers sent on 19 and 22 May.[65] The applicant restated the claim in his oral evidence to the Tribunal but denied that the claim was “absolutely false and ridiculous”. He sought to justify the 16 hours he claimed to have spent drafting the offers on the basis that, “I sat there contemplating them and contemplating them and contemplating them and contemplating them and researching and researching to make sure that – whether I should do them”.[66] In fact, the applicant used an example letter that Mr O’Keefe emailed to him on 18 May 2017 as a template for the Calderbank offers.[67] The drafting differences are minimal. The applicant’s claim that he spent 16 hours drafting the two letters is preposterous and his adherence to that position in his evidence to the Tribunal reflects adversely on his honesty and integrity.
[65] Exhibit A document B2
[66] Transcript of proceedings 15 February 2021, page 114 line 10 to page 115 line 19
[67] Exhibit 1
It is convenient to note at this point that the applicant is, and at all material times was, admitted as a legal practitioner in the ACT.[68] However, until 1 June 2017 he did not hold a practising certificate. The ACT Law Society issued the applicant with a restricted practising certificate for the first time on 1 June 2017,[69] which he held for 12 months but did not renew subsequently.[70]
[68] Transcript of proceedings 15 February 2021, page 55
[69] Exhibit 2
[70] Transcript of proceedings 15 February 2021, page 55 lines 26-40
The applicant claims that during 2017 he provided legal services as a solicitor under an informal and undocumented arrangement with Mr O’Keefe.[71] It is unclear when this arrangement began. The respondent notified the applicant by email on 11 February 2021 that he was required to produce at the hearing any documents evidencing his employment with Mr O’Keefe. The applicant did not produce any documents and, in his evidence to the Tribunal, claimed that he did not have any documents of that kind. Although he said that he invoiced Mr O’Keefe and was paid based on what “I thought was a reasonable rate of $300 an hour for my time”, the applicant claimed to have no timesheets and that he did not keep any records of his time spent on matters or of the work that he did. The costs payable to him, so he claimed, were negotiated on a case-by-case basis.[72] I am not satisfied that the applicant’s evidence on this issue is truthful.
[71] Transcript of proceedings 15 February 2021, page 19 line 45 to page 21 line 11
[72] Transcript of proceedings 15 February 2021, page 96 line 33 to page 99 line 32
The applicant claims that he sought and obtained advice from Mr O’Keefe from time to time in relation to his mother’s estate and that Mr O’Keefe had been involved in the matter since 2013, although he was not formally retained as the applicant’s solicitor and was not paid for the advice that he gave.[73]
[73] Transcript of proceedings 15 February 2021, page 27 line 33 to page 30 line 19
However, the applicant claims that he came to an oral arrangement with Mr O’Keefe to the effect that Mr O’Keefe would be paid $40,000 (plus GST) for Mr O’Keefe’s legal costs of providing assistance with the mother’s estate once the Supreme Court proceedings were completed.[74] Initially the applicant said he could not recall when he made the arrangement. When pressed, he claimed that the arrangement was made in May “more or less” but then reverted to saying that he could not recall.[75]
[74] Transcript of proceedings 15 February 2021, page 100 line 21 to page 103 line 14
[75] Transcript of proceedings 15 February 2021, page 100 line 21 to page 102 line 13
The essence of the alleged arrangement appears from the following passage of the applicant’s cross-examination:[76]
[76] Transcript of proceedings 15 February 2021, page 102 line 22 to page 103 line 37
Mr Dirkis – I recall being in a café with him.
Mr Pappas – Okay. And what did you say to him and…
Mr Dirkis – I can’t recall.
Mr Pappas – …what did he say to you? Well, you were agreeing apparently to pay him a large sum of money for assistance with your mother’s estate, weren’t you?
Mr Dirkis – Yes, based on a quote I’d got from DCS.
Mr Pappas – And this is as late as May 2017?
Mr Dirkis – He had already done work.
Mr Pappas – What work had he done?
Mr Dirkis – He’d advised me since 2013.
Mr Pappas – Right. So that was the work that I rehearsed with you this morning?
Mr Dirkis – Yes.
Mr Pappas – So having worked on your matter for – your mother’s estate matter for something like four years, he had received no payment. Am I correct?
Mr Dirkis – He hadn’t received – he hadn’t – he had received no payment, that’s correct.
Mr Pappas – And then probably in a café in May 2017 it is agreed between you and he that he would receive $40,000?
Mr Dirkis – Yes.
Mr Pappas – And when was that to be paid?
Mr Dirkis – Once the matter had finished.
Mr Pappas – When you say finished, what, once the estate was wound up?
Mr Dirkis – No.
Mr Pappas – What was it?
Mr Dirkis – When the proceedings in five – the two proceedings would be complete.
Mr Pappas – Yes, the Supreme Court proceedings?
Mr Dirkis – Yes.
Mr Pappas – Okay. There are no further orders to be made, are there, in those proceedings?
Mr Dirkis – Not that I’m aware of.
Mr Pappas – No. You have never paid Mr O’Keefe a cent of the $40,000, have you?
Mr Dirkis – I can’t afford to.
The respondent issued a subpoena to Mr O’Keefe requiring him to produce the following documents:
a) A copy of any “fixed fee arrangement” or agreement for you to act on behalf of Mr Paul Dirkis in relation to his mother’s estate and the two previously identified ACT Supreme Court proceedings, SC 58 of 2017 and P 513 of 2011.
b) A copy of any advice or file note of advice concerning Calderbank offers in those proceedings.
c) A copy of any draft Calderbank offer or Calderbank offer in final form prepared by you or prepared with your assistance in those proceedings.
d) Any file notes, letters or other writing evidencing your retainer as solicitor in proceedings and any time cost records; diary entries or other documents whether in manuscript, typescript or electronic form evidencing the date upon which any such work was undertaken by you; the amount of time that work occupied and the extent to which you were assisted in undertaking that work by any other person.[77]
[77] Exhibit 9
Mr O’Keefe produced a single document – a copy of document B1 dated 8 November 2018 instead of 8 November 2017.[78] The applicant was unable to explain the difference in dates.[79]
[78] Exhibit 8
[79] Transcript of proceedings 15 February 2021, page 100 line 1-19 and page 109 line 34 to page 111 line 19
I consider that Mr O’Keefe’s failure to produce any documents meeting the description in (a) and (d) is particularly significant and suggests that no such documents exist. It casts considerable doubt on the applicant’s claims that Mr O’Keefe was retained informally to do work in relation to the estate and that the applicant was liable to pay Mr O’Keefe for any legal services that Mr O’Keefe may have provided on an informal basis.
The applicant admitted that the Public Trustee and Guardian had been asking, for a period of years, for the applicant to provide a proper bill of costs so that his entitlement could be assessed, but that he had “steadfastly refused to provide an itemised account” and that he knew “in that context that the entire arrangement alleged to be made between [him] and Mr O’Keefe is challenged”. The applicant nevertheless was not prepared to ask Mr O’Keefe to give evidence to the Tribunal about the arrangement. [80]
[80] Transcript of proceedings 15 February 2021, page 106 line 17 to page 107 line 43
On the morning of the second day of the hearing I drew the applicant’s attention to inferences the respondent may invite me to draw from Mr O’Keefe’s response to the subpoena and from the applicant’s failure to call Mr O’Keefe to give evidence. I advised the applicant that I was prepared to issue a subpoena requiring Mr O’Keefe to appear by telephone or in person that day for the purpose of giving evidence and to give the applicant leave to re-open his case for that purpose. The applicant advised that he did not wish to avail himself of that opportunity. He confirmed that he understood the inferences that may be said to arise from his failure to call Mr O’Keefe. He then informed me that he wished to abandon his claim insofar as it is based on document B1.[81]
[81] Transcript of proceedings 16 February 2021, page 139 line 25 to page 142 line 26
However, as counsel for the respondent, submitted at the time, while the applicant is free to abandon his claim insofar as it relies on Mr O’Keefe’s invoice, his evidence on the subject remains and is relevant to credit. Counsel for the respondent foreshadowed a submission that the applicant “is totally lacking in credit and to that extent his reliability is entirely suspect and that will inform the entirety of his claim.”[82] Having listened to that submission, the applicant confirmed to the Tribunal that he abandoned any reliance on Mr O’Keefe’s invoice.
[82] Transcript of proceedings 16 February 2021, page 142 line 38
It is unnecessary therefore for me to make findings in relation to document B1 or the arrangement the applicant claims to have made with Mr O’Keefe. However, his evidence about these issues has contributed to my view, expressed earlier, that the applicant’s evidence generally, both written and oral, was self-serving, lacked candour and in important respects was not truthful.
The applicant’s evidence, if believed, amounts to an allegation that Mr O’Keefe provided legal services without a written costs disclosure in breach of his obligations under sections 269, 271 and 275 of the Legal Profession Act 2006 and without a costs agreement that complies with section 282 of the Act. Such conduct, if established, may amount to unsatisfactory professional conduct or professional misconduct.[83] Further, pursuant to section 289 of the Act legal costs cannot be recovered unless a bill has been given in accordance with section 290, which requires, among other things, that the bill must be signed.
[83] Section 389(a) of the Legal Profession Act 2006
Nothing I have said in these reasons should be taken to imply that Mr O’Keefe is, or may be, guilty of conduct that could give rise to a complaint or disciplinary action pursuant to Chapter 4 of the Legal Profession Act 2006. Mr O’Keefe did not give evidence in circumstances where the applicant clearly did not want him to give evidence, although the applicant was given ample opportunity to do so.
A document like document B1, except that it is dated 8 November 2018 instead of 8 November 2017, was discovered in Mr O’Keefe’s records and was produced by him in answer to the subpoena.[84] The circumstances in which that happened were raised with the applicant in cross-examination.[85]
Mr Pappas – When was the last time you spoke to him?
Mr Dirkis – When he received the summons, the subpoena and I enlightened him that he may have a document.
Mr Pappas – And it wouldn’t be hard to get him to come along and give evidence in this tribunal, would it?
Mr Dirkis – I don’t think he wants to.
Mr Pappas – No, not whether you think he wants to or not, have you asked him?
Mr Dirkis – He is reluctant.
Mr Pappas – No. Have you issued a subpoena to bring him along today?
Mr Dirkis – No, Because I don’t need to. [Emphasis added]
[84] Exhibit 8
[85] Transcript of proceedings 15 February 2021, page 106 line 14 to 25
It is curious that it should be necessary for the applicant to “enlighten” Mr O’Keefe that he may have a document in his possession like document B1 if, in fact, Mr O’Keefe had invoiced the applicant for legal services that he had provided in connection with the estate over a period of several years, pursuant to a fixed fee arrangement, and was expecting to receive payment. However, the logical possibilities that arise from this were not put to the applicant in cross-examination and, in the absence of evidence from Mr O’Keefe, it is not possible for me to make findings about the authenticity of document B1, or about who generated the invoice, when that happened, in what circumstances and for what purpose.
To be clear, the applicant has not established to my satisfaction that:
(a)he ever retained Mr O’Keefe to provide legal services in connection with the estate;
(b)if Mr O’Keefe provided informal advice or assistance to the applicant in connection with the estate, Mr O’Keefe did so expecting to be paid for his services;
(c)the applicant and Mr O’Keefe came to any arrangement for Mr O’Keefe to be paid $40,000 plus GST for legal services provided in connection with the estate; or
(d)the invoice ostensibly for Mr O’Keefe’s services, which is document B1, is a genuine invoice for legal services prepared and issued by Mr O’Keefe, or by someone acting on his instructions.
It appears that, to date, the Public Trustee and Guardian has paid $111,235.99 out of the estate for legal fees incurred by Michael Dirkis and Aurora Andruska in relation to the removal proceedings and the probate proceedings in accordance with the costs order made on 9 August 2017.[86] The evidence, however, does not distinguish between costs incurred in connection with the removal proceedings and those incurred in connection with the probate proceedings, or the costs in the removal proceedings that were incurred after the date when the applicant claims the proceedings would have settled.
Consideration
[86] Exhibit A document C4
The applicant’s case is that Mr Burn was negligent or breached section 18 of the Australian Consumer Law by failing to advise him in the email sent on 24 April 2017 that the respondent’s refusal to accept an appointment could be overridden by a court order appointing the respondent as administrator of the mother’s estate.
It is convenient to consider the question whether Mr Burn’s failure to advise the applicant of that fact amounted to a negligent misstatement, or constituted misleading or deceptive conduct, together.
The respondent concedes that sending the email was conduct which occurred in trade or commerce, but denies that the conduct was misleading or deceptive.[87]
[87] Amended civil dispute response, paragraphs 34 and 35
The respondent denies that it owed a duty of care to avoid economic loss in making the statements in the email and denies that it was providing advice to the applicant.[88]
[88] Amended civil dispute response, paragraphs 44 to 50
I have found earlier that that the applicant was seeking Mr Burn’s advice about the applicant’s options in the circumstances recorded in Mr Burn’s diary note. The contents of the diary note, and the confirmation of the advice given by telephone in the email sent later that same day, establishes, in my view, that Mr Burn understood that the applicant was seeking his advice on an important matter, and would likely rely on that advice. I am prepared to assume, without deciding, that in those circumstances Mr Burn came under a duty to take care to avoid economic loss in giving advice to the applicant.[89]
[89] See generally R. P. Balkin and J. L. R. Davis, Law of Torts, (LexisNexis Butterworths, 4th Ed, 2009) [13.21] – [1323]
Liability for negligent advice may arise in circumstances where the person giving advice should have realised that the person seeking advice was relying on them to provide more than was imparted.[90]
[90] Ibid at [13.34] f.n. 102
Similarly, a failure to disclose a fact may amount to misleading or deceptive conduct if the circumstances are such as to give rise to a reasonable expectation that if the fact exists it would be disclosed, which may give rise to an inference that the fact does not exist.[91]
[91] See generally Russell V. Miller Miller’s Australian Competition and Consumer Law Annotated, (Lawbook Co, 41st Ed, 2019) [ACL 18.380]
My earlier findings in relation to the content of the telephone conversation between the applicant and Mr Burn on 24 April 2017[92] compel the conclusion that Mr Burn was not negligent in failing to advert to the potential for the respondent to be appointed by court order, and nor was his advice misleading or deceptive for the same reason. The question of removal and replacement of the executors by court order did not arise in the context of the conversation on 24 April 2017. There was no reason for Mr Burn to realise that he should advert to that possibility in advising the applicant on his options, and no reason for the applicant to expect that Mr Burn would provide advice on that topic when the applicant had actively misled Mr Burn as to the true nature of the proceedings in which the applicant was then involved.
[92] See paragraph 37 above
That is sufficient to determine the outcome of this application. However, there are additional reasons why the application must fail.
First, I am not satisfied that if the applicant had been advised differently on 24 April 2017, the applicant would have made a Calderbank offer to the effect that he and his brother would voluntarily relinquish their office as executors to enable the Public Trustee and Guardian to be appointed in their place. It was always open for the applicant to relinquish his position as a means of resolving the dispute. He did not demonstrate a willingness to step down at any time before the day of the final hearing. There was no explanation for his failure to convey to the other parties the fact that the Public Trustee and Guardian was prepared to accept an appointment to act as trustee for the sale of the mother’s house, which may have led to an early resolution of the dispute. Perhaps most telling is the fact that the applicant did not consent to the orders that Ms Barlin advised on 28 April 2017 would be the subject of an oral application for leave to amend, which would have resolved the proceedings at that time on essentially the same terms, except as to costs, as happened on 9 August 2017.
Second, I am not satisfied that there was any real chance that the other parties to the removal proceedings would have accepted a Calderbank offer along the lines suggested by the applicant in his evidence to the Tribunal. As the applicant conceded, the proposal outlined in his email to Ms Barlin on 31 March 2017 included an option that essentially reflected the outcome agreed on 9 August 2017, except as to costs, but which was rejected “out of hand” a few days later. Further, the question of costs clearly was likely to be an important consideration. The applicant’s position in the Calderbank offer to his sister on 18 May 2017 was that each party should pay their own costs. There is no reason to think that would have been acceptable to the sister. Even if the applicant had made a Calderbank offer on terms that the parties’ legal costs of the removal proceedings and the probate proceedings should be paid out of the estate on an indemnity basis, as ultimately happened, I am not satisfied that Aurora, the plaintiff in the removal proceedings, would have agreed to the applicant’s costs being paid out of the estate, given her opposition to that course at the hearing before McWilliam AsJ on 9 August 2017.
Third, allied with this is the applicant’s concession that he has never spoken with his brother and sister to ascertain whether they would have been prepared to accept a Calderbank offer along the lines he was suggesting.[93] Accepting that the applicant’s claim seeks damages effectively based on a ‘loss of chance’, the evidence leaves the possibility that the proceedings may have settled earlier and the terms upon which that may have happened firmly in the realm of unsupported speculation.
[93] Transcript of proceedings 15 February 2021, page 94 line 23 to page 95 line 33
Fourth, insofar as the applicant’s claim is founded on document B2, apart from the evidentiary difficulties to which I have referred earlier, the claim that the cost of the applicant’s time spent on the probate proceedings and removal proceedings should be brought to account is misconceived as a matter of law. For much of the time the applicant did not hold a practising certificate. He was therefore simply a self-represented litigant. The general rule at common law is that a self-represented litigant is not entitled to recover the ‘cost’ of their time spent on the litigation. However, until recently there was a long-standing exception to the general rule that allowed, as a rule of practice, a self-represented litigant who was a solicitor to recover their professional costs of acting in the litigation. This was referred to as the Chorley exception and had its origins in the English Court of Appeal decision in London Scottish Benefit Society v Chorley (1884) 13 QBD 872. However, in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, the plurality of the High Court (Kiefel CJ, Bell, Keane, Gordon, and Edelman JJ)[94] held that the Chorley exception should not be recognised as part of the common law of Australia. Therefore, the fact that the applicant held a practising certificate as a solicitor for a short time from about early June 2017 does not alter the fact that he has no entitlement at law to recover his professional costs of representing himself in the litigation.
[94] Gageler J agreed with the orders of the plurality but on the basis only that the Chorley exception should not be extended to barristers – at [79]
Fifth, it may be accepted that if the removal proceedings had settled earlier, there may have been some saving of costs in relation to those proceedings, but there is no basis to think that there would have been any saving of costs in relation to the probate proceedings. I found earlier that the Public Trustee and Guardian has paid out of the estate amounts totalling $111,235.99 for costs incurred by Michael Dirkis and his sister, Aurora, in relation to the probate proceedings and the removal proceedings. To quantify any saving of costs, it would have been necessary for the applicant to establish the proportion of those costs incurred in relation to the removal proceedings and the proportion incurred in relation to the probate proceedings, and then to apportion the costs of the removal proceedings further to establish those that were incurred before and after the notional date on which the applicant claims that the removal proceedings would have settled.
As I have said earlier, on 16 February 2021 I found that the applicant’s case failed at the threshold because the conduct about which he complains was neither misleading or deceptive, nor negligent. However, the other matters I have mentioned, individually and collectively, provided additional reasons for my decision to dismiss the application on 16 February 2021.
………………………………..
Senior Member M Orlov
| Date(s) of hearing | 15 February 2021 16 February 2021 |
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Pappas |
| Solicitors for the Respondent: | Mr R McCrone, ACT Government Solicitor |
2