Garrett-Jones v Kendall
[2020] ACTCA 27
•15 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Garrett-Jones v Kendall |
Citation: | [2020] ACTCA 27 |
Hearing Date: | 15 May 2020 |
DecisionDate: | 15 May 2020 |
Before: | Mossop J |
Decision: | See [35] |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal from an interlocutory decision – decision restrained solicitor from acting for executor in probate proceedings – where solicitor was involved in making of contested will – where solicitor’s evidence will be of significance in substantive hearing – leave to appeal dismissed |
Legislation Cited: | Guardianship and Management of Property Act 1991 (ACT) |
Cases Cited: | Arrow International Australia Ltd v Group Konstrukt Pty Ltd[2012] ACTCA 37; 7 ACTLR 48 Banks v Goodfellow (1870) LR 5 QB 549 Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 |
Parties: | Lesley Ann Garrett-Jones (Applicant) Richard Philip Kendall (Respondent) |
Representation: | Counsel T Crispin (Applicant) G Blank (Respondent) |
| Solicitors Ray Swift Moutrage & Associates (Applicant) Farrar Gesini Dunn (Respondent) | |
File Number: | ACTCA 9 of 2020 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Crowe AJ Date of Decision: 25 February 2020 Case Title: In the Estate of Shirley Eileen Kendall Citation: [2020] ACTSC 42 |
MOSSOP J:
Introduction
This is an application for leave to appeal to the Court of Appeal from an interlocutory decision made by a judge (the primary judge): see In the Estate of Shirley Eileen Kendall [2020] ACTSC 42. His Honour made an order restraining a solicitor (the solicitor) from acting for the executor in probate proceedings. In summary, that was because the solicitor’s evidence was likely to be of significance in determining the testamentary capacity of the deceased and there was likely to be a significant attack upon the reliability of her evidence.
The proceedings relate to a will executed on 21 May 2008. That will was witnessed by the solicitor and her clerk. Prior to the making of the 2008 will the testator’s husband had been suffering from dementia and he was moved into an aged care home with a dementia facility, shortly before the 2008 will was executed. He died in May 2009. Shortly before the death of her husband, a son of the testator, Donald Kendall, commenced proceedings in the ACT Civil and Administrative Tribunal (ACAT), seeking the appointment of a guardian and manager in relation to the testator’s affairs. That application was heard and dismissed by the Tribunal on 4 August 2009.
In June 2017 the testator died and her daughter, Lesley Garrett-Jones, was granted probate of the 2008 will in December 2018. The grant was made in common form. The solicitor acted for Lesley Garrett-Jones in obtaining probate.
In October 2019 Richard Philip Kendall (known as Philip Kendall), another son of the testator, filed an Application in Proceeding in the probate proceedings seeking a declaration that the will was not a valid will and that the grant of probate be revoked and probate be granted for a 1994 will. In summary, the matters raised by the application were a lack of testamentary capacity, that the deceased was suffering delusions at the time of executing the will and that there was a presumption of influence arising from the granting of a power of attorney by the testator to Lesley Garrett-Jones. Subsequently, on 20 December 2019, Philip Kendall filed a further application seeking that the solicitor be restrained from acting for the estate.
The primary judge’s reasons
His Honour set out this background information. He then summarised the involvement of the solicitor in the making of the will:
(a) she had been contacted in relation to the making of a will;
(b) she had required a letter from the testator’s general practitioner stating that she did not suffer from a mental condition or disorder of the mind which might affect her judgment;
(c) she took instructions at the testator’s home; and
(d) she then saw the testator at her office in order to explain the will and have it executed.
The solicitor set out in her affidavit in the proceedings various observations about the testator’s capacity to give instructions.
His Honour set out a summary of the evidence in Donald Kendall’s affidavit challenging her capacity.
His Honour summarised the evidence of Alistair Kendall in relation to three meetings in relation to the testator’s will involving the testator and one or more of the children. When he attended the third meeting, he said that the solicitor was present at the testator’s home and there was a conversation about how the testator had obtained representation from the solicitor. He said that a Judith Upton was present, and that Ms Upton and the solicitor behaved as though they were friends.
His Honour then set out the submissions made on behalf of Philip Kendall and the executor. As recorded in his Honour’s reasons, the essential point made in relation to the evidence of the solicitor was that it would be critical, because there would be inconsistencies between her evidence and the evidence of Alistair Kendall. In those circumstances, much would depend upon her credit.
Counsel for the executor raised the issue of the lateness of the application, the relative lack of significance of any differences between the evidence of Alistair Kendall and the solicitor in relation to the third meeting (which had not been described in the solicitor’s evidence) and the unlikelihood of any reputational harm arising from whatever challenge was necessary to the evidence of the solicitor. He also pointed to the term of the will which required the solicitor’s firm to act as solicitors for the estate and that the executor clearly wished that firm to act in the litigation.
His Honour recorded that in reply, counsel submitted that Mr Kendall’s solicitors had only come into the matter in March 2019 and had been agitating the issue of representation from that time.
His Honour’s consideration of the submissions appears at [46]-[64] of his reasons. His Honour referred in some detail to the decision in Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 (Kallinicos), in which Brereton J reviewed the authorities and summarised their effect in a number of dot points. The primary judge indicated that he had approached the exercise of discretion by reference to the principles articulated in Kallinicos.
His Honour’s reasoning may then be summarised as follows:
(a)The solicitor’s evidence would be important, as the evidence of capacity given by an experienced solicitor would be a matter on which the court would be likely to place significant weight and the detailed account by the solicitor of the meeting with the testator at her home on 14 May 2008 would be “powerful evidence that the Testator met the requirements of the Banks v Goodfellows [sic] test”.
(b)It was therefore a case in which those challenging the will “must mount a significant attack on the reliability of [the solicitor’s] evidence”. That would inevitably involve an attack on the solicitor’s reliability, in part based upon the evidence of Alistair Kendall in relation to the third meeting. That attack on reliability would involve a challenge to her credibility, particularly in circumstances where there are no file notes presently available as to the events in May 2008.
(c)The evidence of the decision of the tribunal in August 2009 did not render the events surrounding the making of the 2008 will of less importance, given the potential for an elderly person to move in and out of a state of confusion.
(d)The evidence of Dr Craft, who had assessed the testator as competent, was strong support for the proposition that the testator had testamentary capacity, but the evidence of the solicitor would be critical in determining whether the testator knew and approved the contents of the specific will in question.
(e)His Honour stated:
Against this background, it does seem to me that continuing to act for the Executor will place [the solicitor] in the situation where she will be testifying in circumstances where she owes an obligation of loyalty to [the executor], at the same time having an interest in defending her own conduct and credibility, and discharging her obligations as an officer of the Court. While these conflicts cannot be totally resolved it seems to me that they would be greatly lessened if [the solicitor] was giving evidence other than as the solicitor for the Executor in the litigation in which that evidence is relied upon to support the validity of the will.
His Honour then indicated, consistent with the principles articulated by Brereton J in Kallinicos, that the solicitor should be prevented from continuing to act for the executor in the litigation.
His Honour made reference to relevant discretionary matters:
(a) His Honour did indicate that he was conscious of the exceptional nature and the need for caution in making such an order.
(b) His Honour recognised that considerable weight should be given to the public interest in permitting the executor to take the case to hearing with the solicitor of her choice.
(c) His Honour recognised that the application was made late, but that there was some explanation for that which meant that the delay in bringing the application did not weigh heavily against the making of a restraint order.
(d) He did not see the potential for the delay to the hearing as being significant.
As a consequence, he considered it appropriate to take the exceptional course of overriding the executor’s choice of solicitor and did not see that there were any discretionary considerations requiring a different conclusion.
The current application
The Application for Leave to Appeal was supported by an affidavit of the solicitor, which annexed the draft Notice of Appeal. Counsel for the executor also put into evidence the whole of the evidence that was before the primary judge. A further affidavit (of Judith Upton) was filed in support of the application for leave. This affidavit was subject to an objection which I will deal with below.
The grounds proposed in the draft Notice of Appeal are:
II.His Honour fell into error by finding that [the solicitor] had an interest in defending her own conduct and credibility, conflicting with her obligations to the Appellant and as an officer of the Court.
VI.His Honour fell into error by finding that fair-minded and reasonably informed members of the public would conclude that the due administration of justice would require that [the solicitor] be prevented from continuing to act for the Appellant, as per principles found in Kallinicos v Hunt [2005] NSWSC 1181, particularly the lack of any potential gain from [the solicitor] other than ordinary legal fees.
VII.His Honour fell into error by failing to properly consider the significant unlikelihood of any criticism being made of [the solicitor’s] conduct, even were the allegations made by the Respondent to be made out.
VIII.His Honour fell into error by failing to properly consider whether the proceedings was likely to be an abuse of process of the sort contemplated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, as the late testator’s capacity had already been assessed by ACAT in guardianship proceedings brought by Donald Kendall.
IX.His Honour fell into error by determining the application on the affidavits, when the inconsistencies in the account given by Alastair Kendall ought to have required that his evidence be tested in cross-examination.
Notwithstanding the somewhat unorthodox numbering sequence in these grounds of appeal, I will use the numbers attributed to them in the draft Notice of Appeal.
In Arrow International Australia Ltd v Group Konstrukt Pty Ltd[2012] ACTCA 37; 7 ACTLR 48 at [58], Refshauge ACJ summarised the principles to be applied on an application for leave to appeal from an interlocutory decision as follows:
(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;
(b) a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc(1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and
(g) it may be a factor favouring the grant of leave that:
(i) the decision involves a matter of public importance; or
(ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
The present application involves a judgment being made as to what the administration of justice requires in particular circumstances and a discretionary decision as to how to address the issue that arose. That may be considered to involve an exercise of judgment and an exercise of discretion. The exercise of judgment involves an assessment as to the significance of the evidence of the solicitor at a future hearing. That involves an assessment of the likely course of the conduct of the hearing. Plainly enough, that assessment necessarily involves a considerable degree of uncertainty. Insofar as it involves an exercise of judgment about the significance of the solicitor’s evidence at a future trial, it is one involving matters of impression and degree upon which reasonable minds might differ. Insofar as it involves weighing the significance of the role of the solicitor against other discretionary considerations, it clearly involves an exercise of discretion. In my view, a decision such as that made by the primary judge is the type of matter where very considerable caution should be exercised in relation to interlocutory appeals.
None of the grounds of appeal assert any challenge to the principles to be applied. Rather, they challenge conclusions on matters of emphasis or judgment in relation to particular factors (II, VI, VII), an issue of procedure (IX) and one issue involving a question of law (VIII).
So far as grounds II, VI and VII are concerned, it is necessary to deal with the application to rely upon the additional affidavit of Judith Upton. In this affidavit she denies knowing or meeting the solicitor. It is therefore contrary to Alistair Kendall’s affidavit in which he had deposed to attending the third meeting at which Ms Upton was present. There was no explanation as to why this affidavit was not filed prior to the application before the primary judge. While the material in the affidavit does contradict the affidavit evidence of Alistair Kendall and hence strengthens the case to be put at trial in behalf of the estate, it does not detract from the proposition that the solicitor’s evidence will be subject to challenge. The filing of this affidavit reflects the general approach taken by the executor in attempting to persuade the court that the case put on behalf of the estate is so strong that the court should conclude that there will be no real or credible challenge to the reliability of the solicitor’s evidence. In my view, while in a different case the strength of one party’s case may be so great as to demonstrate that the challenge to the involvement of a solicitor should be rejected, this is not such a case. On the application for leave to appeal I admit the affidavit. However, for the reasons which follow, the existence of that affidavit does not result in any different assessment of the significance and likely challenge to the solicitor’s evidence than that made by the primary judge.
I have indicated that the assessment of the significance and likely challenge to the solicitor’s evidence involves matters of judgment. It is possible that different conclusions might be reached by different judges. That is particularly so in circumstances where the application necessarily involves the assessment of the future conduct of the trial and the approach taken to cross-examination of the solicitor. I do not accept that it can be said now that there is no reasonable foundation for cross-examination concerning the solicitor’s honesty or accuracy of her recollection. Further, I do not accept the submission that there is no prospect of reputational damage arising out of the conduct of the case. In my view, the assessment made by the primary judge is one which was reasonably open in the circumstances. Further, the additional evidence of Ms Upton does not alter that assessment. In my view, the prospects of the Court of Appeal reaching a different conclusion appear to be low. None of the arguments advanced appear to show a good case that his Honour erred in the way that he dealt with the matter.
So far as ground VIII is concerned, the executor is correct that his Honour did not expressly deal in his reasons with the argument that was put to him in relation to the application of the decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun). It is apparent, however, from the transcript, that his Honour considered that the submission put was without merit. The exchange at pages 38-39 of the transcript makes that clear. During the course of the exchange with counsel his Honour said “… unless you’ve got some very clear authority for the proposition that a decision of ACAT in the guardianship matter could bind a court dealing with the question of testamentary capacity, I would not give much weight to that submission”. Counsel then responded. The extent of his submission about the decision in Anshun was:
…It may not give rise to an issue of estoppel, your Honour, but it might well fall within the Port of Melbourne Authority v Anshun and I would expect that that would be a matter that would have to be ventilated at the trial and I am not attempting to suggest that it would be a certainty that it would fall within that, but it is yet another potential evidential way that this proceeding might end without there being any special weight given to [the solicitor’s] evidence.
A number of features of this exchange are worthy of note:
(a)the tentative way in which the submission was put;
(b)the absence of any authority that would apply the principles in Anshun to the decision of the ACAT;
(c)the absence of any submission as to the temporal relationship between the decision of the ACAT and the earlier making of the will; and
(d)the fact that the possible application of Anshun was only advanced as a reason why the solicitor’s evidence may be of less significance.
On the application for leave to appeal, it was this ground that was given principal emphasis. As it was a matter which counsel for the executor said would be raised at the trial in any event and may be a matter which is to be relied upon for the purposes of a strikeout application, it is not appropriate in these reasons to express any concluded view about the issue in a way that would preclude the proper development of any argument and consideration of it on a future occasion. It is sufficient for present purposes to say that it appears to be a weak argument and one not meriting a grant of leave to appeal. That is for four reasons:
(a)The submissions by the executor were not supported by any authority or articulated by any reference to principle that would support the proposition that a decision of an administrative tribunal such as the ACAT would give rise to an estoppel.
(b)There was no explanation as to how a decision about capacity in July 2009 might determine the question of capacity in May 2008.
(c)It was not established that the issue before the Tribunal under the Guardianship and Management of Property Act 1991 (ACT) involved determining the same question as to capacity that arises in relation to the making of a will.
(d)It was not established that in the tribunal proceedings it would have been open to any party to seek a finding in relation to the capacity to make a will more than a year previously.
Having regard to the apparent lack of merit in the argument and the minimalist way in which it was developed before his Honour, I am not satisfied that his Honour failed to consider it or erred in failing to give reasons for rejecting this argument. On an interlocutory application such as this, a judge is not obliged to give reasons rejecting every submission put by a party. Further, in my view, even if there was a failure to give reasons, the prospect of the Court of Appeal reaching a different conclusion, based upon the possible application of Anshun, are poor.
Finally, ground VIII. This is the contention that his Honour should have permitted cross‑examination of Alistair Kendall and possible other deponents for the purposes of the interlocutory application. This relates to a matter of practice and procedure. A judge hearing an interlocutory application has a discretion as to whether or not to grant leave to permit cross‑examination on any affidavit relied upon: Ren v Jiang [2014] NSWCA 1 at [11]. Such leave is granted “cautiously” and “somewhat sparingly”: see Wu v Avin Operations (No 3) [2006] FCA 1321 at [18]. In any event, there was no application at the hearing that cross‑examination be permitted. In my view, this ground of appeal has no prospects of success.
Although not directly related to any of the grounds of appeal, the executor made submissions directed to the extent of prejudice to the estate by reason of the restraint ordered by the primary judge. The executor submitted that the decision involved the determination of substantive rights because the restraint of the solicitor would result in the estate incurring additional expense and, depending upon the costs orders that were ultimately made, that expense might be borne by the estate and hence reduce the amount available to beneficiaries. I do not consider that this involves a substantive right in the sense described in the authorities in relation to the grant of leave to appeal. If by the chain of reasoning contended for by the executor it could be characterised as having a substantive effect upon the estate, it is not a decision which is in the same category of substantive effects as, for example, where a claim is struck out or summary judgment given. As to the extent of any prejudice, it was uncontroversial that the affidavit evidence required for trial had already been filed, and that, although the solicitor was restrained, there was no restraint on retaining the same barrister in the proceedings as had been previously retained.
In summary, the position is:
(a) the grant of leave would fragment and further delay the conduct of the case;
(b) the decision was made in the exercise of discretion involving the court’s control over one of its officers;
(c) the executor has not asserted any error of principle in the approach taken to the application;
(d) the only error of law asserted, that in relation to Anshun estoppel, is one in relation to which the executor’s argument is certainly no better than weak;
(e) the decision did not determine any substantive rights;
(f) the decision does not involve a matter of public importance nor affect the fairness of the trial; and
(g) overall, the decision is not attended with sufficient doubt as to warrant the grant of leave.
Having regard to these matters, in my view, leave to appeal must be refused.
In relation to costs, it is appropriate that the same approach be adopted as that identified at [66] of the primary judge’s decision, namely, reserving costs.
The matter is presently listed for directions on 19 May 2019. It is clearly desirable that the matter be listed for trial as soon as possible.
The orders of the Court are:
1. The Application for Leave to Appeal filed 3 March 2020 is dismissed.
2. The costs of the Application for Leave to Appeal are reserved and are to be determined by the trial judge or the judge otherwise finalising the proceedings.
3. I discharge order (2) made by Crowe AJ on 25 February 2020.
4. I stay order (1) made by Crowe AJ until 5pm on 19 May 2020.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 28 May 2020 |
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