Henderson v Wilson

DISTRICT COURT OF QUEENSLAND

CITATION: Henderson v Wilson & Anor [2000] QDC 386
PARTIES: PAUL DAVID HENDERSON
Plaintiff
v
ALAN MUIR WILSON
First Defendant
and
GILSHENAN AND LUTON (A FIRM)
Second Defendant
FILE NO/S: D2410 of 2000
DIVISION: Civil Jurisdiction
PROCEEDING: Application
DELIVERED ON: 10 November 2000
DELIVERED AT: Brisbane
HEARING DATE: 14 August 2000
JUDGE: Judge Brabazon QC
ORDER: Order that the plaintiff’s action against the second
defendant be dismissed
CATCHWORDS: Abuse of process – summary dismissal of action – Williams v
Spautz (1992) 174 CLR 509 and Flower & Hart v White
Industries (1999) FLR 134 considered
COUNSEL: Mr D. Clothier for the applicants/defendants
Mr Paul Henderson, in person
SOLICITORS: Brian Bartley & Associates for the applicants/defendants
Paul D. Henderson
JUDGMENT
The Applications

The second defendants ask that the plaintiff’s action be dismissed, in a summary
way, because it has no prospects of success. Alternatively, they request that further
particulars of his statement of claim be ordered. The plaintiff says that the
statement of claim should be amended, though no amended pleading has been delivered. If leave is necessary to make that amendment, then the plaintiff asks for
it. The two applications were heard together.
The Present Action
Mr Paul Henderson is a solicitor. He has sued Mr Alan Wilson, a barrister, and
Messrs Gilshenan and Luton, solicitors, for damages for abuse of process and
malicious prosecution. The action commenced in the Supreme Court on 28 April
1999. The writ was served on Gilshenan and Luton on 10 May 1999. His
statement of claim was delivered on 1 September 1999. The action has now been
transferred to this court.
The proceedings have not yet been served on Mr Wilson. It is not entirely clear
why Mr Henderson has not served the proceedings on him. Mr Henderson has had
the advantage of many disclosed documents since the end of February 2000. They
include Mr Wilson’s written advices to Gilshenan and Luton. Apparently, he is
waiting for documents that he has sought under the Freedom of Information Act
which are “directly relevant to allegations against (Mr Wilson)”. So far, he says
that various officials have frustrated his efforts to obtain these documents. He first
applied for the documents in August 1998.
His affidavit shows that at least some of those documents were generated in
connection with the Department of Justice in 1998. Mr Wilson was an acting judge
of this court from 6 July 1998 to 3 October 1998. It is difficult to see how any
documents held by a government department might be “directly relevant” to the
issues in these proceedings.
(Paragraphs 96-101 of Mr Henderson’s affidavit go on to deal with his role in
requesting freedom of information documents from the Queensland Law Society. It
seems that he delivered numerous requests to the Society from 1997 to 1999. On 1
April 1999 the Society retained Gilshenan and Luton to advise it about Mr
Henderson’s activities. A written advice (not revealed here) from the solicitors,
dated 9 April 1999, was given to the Law Society. Mr Henderson’s affidavit
reveals that he commenced proceedings against the officers of the Law Society in
1999. The nature of these proceedings is not disclosed. In his affidavit, Mr
Henderson speaks about the role of Gilshenan and Luton:
“They were instructed to prepare a report which they knew would be used by (the Law Society’s officers) to prepare a recommendation to counsel of the Society to discredit me and to discourage me from exercising my lawful rights to obtain access to documents of the Society concerning those persons under the Freedom of Information Act.”
His affidavit then goes on to assert, that: “the specific instructions contained in the
brief were wholly consistent with the tenor of a memorandum concerning a
discussion held by Catherine Piccolo of Gilshenan and Luton with Mr Wilson.”
However, that memorandum is dated 28 November 1997, and its context would
indicate that to be the correct date – not 1999. The “tenor” of the memorandum
apparently relates to a remark by Mr Wilson, to the effect that both Mr Henderson,
and his counsel, were “nutty”. The role of Gilshenan and Luton in 1999 seems to
be entirely irrelevant to these proceedings. However, the reference to the Piccolo-
Wilson conversation, also referred to below, shows the importance that Mr
Henderson attaches to it.)
The Earlier Action
His statement of claim focuses on the role of Mr Wilson and Gilshenan and Luton
in acting for Mr Rodney Henderson, who is his brother. On 17 September 1997
Rodney Henderson issued a writ out of the Supreme Court, against Mr Henderson
and his wife, Mrs Lynette Henderson. Those proceedings were on foot until
discontinued on 20 February 1998.
This statement of claim says that a statement of claim was delivered in Rodney
Henderson’s proceedings. In short, that statement of claim alleged that Mr
Henderson had acted improperly in relation to the affairs of their late father, Mr
Francis Henderson. It alleged that Paul Henderson acted improperly when holding
their father’s power of attorney and then, after his death, as executor of his estate.
The prayer for relief asked for declarations about Mr Henderson’s improper
conduct, an order that the grant of probate in his favour be revoked, and that instead
administration of their father’s estate be given to Rodney Henderson. There was
also a request that an account be taken of their father’s moneys in Mr Henderson’s
hands. There was no allegation of fraud. It was not suggested that there was a lack
of testamentary capacity when their father made his will. However, it was asserted
that their father was in poor mental and physical health after July 1993, and had a
limited capacity to look after his own interests when Mr Henderson was his

attorney
This Statement of Claim.

Paragraphs 22-24 of this statement of claim allege that Mr Wilson and Gilshenan
and Luton behaved improperly in their respective roles in settling and bringing such
proceedings against him. It is said that both of them knew that the proceedings had
no worthwhile prospects of success, that such proceedings were brought in order to
vex Mr Henderson, and that the proceedings were brought not for the purpose of
litigating the claims set out in the statement of claim, but for the collateral purpose
of putting him under pressure to compromise those claims. Alternatively, if they
had given proper attention to the matter, they would have realized that the
proceedings had no worthwhile prospects of success, and would vex Mr Henderson.
In particular, it is alleged that they lent their efforts to producing a statement of
claim which contained allegations for which there was no factual basis – that is,
allegations that Mr Henderson misappropriated his father’s money, that he did so
for his own purposes, and that he abused his powers over his father’s affairs, to his
father’s detriment. Mr Wilson’s involvement ended with his settling the statement
of claim – the solicitors continued the proceedings against Mr Henderson, until they
were discontinued.
Those allegations are said to be a breach of the duty, on the part of both Mr Wilson
and the solicitors, not to obstruct the administration of justice, and not to abuse the
process of the Supreme Court. The claim for damages for malicious prosecution
can be put aside – no prosecution is alleged. It is a complaint about abuse of
process.
Mr Henderson asks for trial by jury.
(The statement of claim also refers to an originating summons to similar effect. But
it was not served on Mr Henderson, and can be ignored.)
The Facts
Because of the extensive material read in relation to the present applications, a good
deal is known about the facts. Much of it is not in dispute. Rodney Henderson has
disclosed more than one thousand documents that he obtained from Gilshenan &
Luton. (Mr Henderson served a writ of non-party discovery on him, two days after
starting these proceedings.) His brother has also handed him copies of documents
made available by Gilshenan and Luton in Magistrates Court proceedings, in which
they sought to recover their fees from Rodney Henderson. Rodney Henderson has
also sworn an affidavit about his contact with that firm, and with Mr Wilson. Mr
Henderson is a prolific letter writer. Those letters show, in his own words, much
about the facts and his role in attending to his father’s affairs. The facts which
follow are taken from that considerable body of evidence.
Before Gilshenan and Luton’s Retainer
On 6 August 1993, Mr Francis Henderson, a retired magistrate, signed his last will.
His solicitor son, Mr Paul Henderson, had long held a power of attorney for him.
In 1991 that became an enduring power of attorney. Mr Henderson also acted as
his father’s solicitor from 1977. Mr Henderson prepared his father’s will – he says
that his father also had independent legal advice about it.
By August 1993, the father was concerned to benefit three sons – Paul, Rodney who
was a botanist, and Phillip, who was intellectually disabled. Paul Henderson was
appointed executor and trustee, with Rodney Henderson as an advisory trustee,
First, he left his entitlement to the estate to his late son A.R.H. Henderson to the
trustee of the “P. Henderson Family Trust” – and if there were not such a family
trust in effect at the date of death, then to Paul Henderson absolutely. Secondly, he
left the residue of his estate to be divided into three equal parts, one to Rodney
Henderson, one to the Paul Henderson family interests, (including, if it were in
existence, to the P. Henderson Family Trust) and one-third to be held upon trust for
the benefit of Phillip Henderson.
Mr Henderson says that in about July 1993, his father asked him to look after
Phillip’s interests and that he had specific reasons for excluding “spending
decisions” concerning Phillip. That wish was consistent with his father’s much
earlier wish, that he says he was to “implement any protective measures to ensure
that Phillip was not stripped of monies and assets” if he was no longer able to look
after Phillip’s interests.
Shortly afterwards, difficulties arose between Paul and Rodney Henderson over
their father’s affairs. Mr Henderson gives his account of a skirmish about their
father’s power of attorney, in paras. 39-53 of his affidavit sworn on 11 August
2000. In short, he says that even though he had taken over the management of all
his father’s affairs by late 1993, by January 1994 his brother Rodney appeared to be
developing considering resentment that he had been appointed their father’s
attorney. Rodney independently started to deal with other parties on behalf of their
father. He then began to demand that Mr Paul Henderson pay some of their father’s money to him for reimbursement of expenses. He refused to do that. That refusal
led to Rodney Henderson obtaining a fresh power of attorney, in favour of the
Public Trustee. However, the Public Trust Office refused to accept the
appointment. In the result, their father re-appointed Mr Paul Henderson, on 5 July
1994. (That skirmish caused Mr Henderson to commence a Magistrates Court
action, on his father’s behalf, against Mr Sherwood. See Rodney Henderson’s
statement, below.)
As their father was in a nursing home, Mr Paul Henderson decided, in late 1994,
that his house in Townsville should be sold. He says that his father reluctantly
agreed with that course of action. It was duly prepared for sale, and sold, with the
proceeds being received by him on 3 May 1995. He agreed to the transfer, as his
father’s attorney. That was the sum of $101,467.50. On 4 May he deposited that
money into an existing Commonwealth Bank account, styled “Paul David
Henderson ITF Francis John Henderson”. On the same day, he withdrew $100,000
from that account. In doing so, he says that “the sale proceeds were dealt with
according to law and entirely in the best interests of my father and of my brother
Phillip as instructed by my father”. (para. 61 of affidavit) Later, in a letter of 4
September 1997, Mr Henderson asserted that his father’s money and house were
“taken into protective custody” to protect them from his brother Rodney.
It appears from the considerable correspondence between Gilshenan and Luton and
Mr Paul Henderson, that the $100,000 was paid into a bank account held by his
wife, Mrs Lynette Henderson, as trustee of the “P. Henderson Trust”. At least, the
money reached that account after the creation of the “P. Henderson Trust”,
according to a deed dated 16 March 1996. The settlor was their father, Francis Henderson. The trustee was Lynette Henderson. It is a discretionary trust. It was
executed by Mr Paul Henderson on behalf of his father, pursuant to his enduring
power of attorney.
The Class A beneficiary was the disabled son, Phillip. The Class B beneficiaries
were Rodney Henderson, Lynette Henderson and (in effect) any family trust created
by Mr Paul Henderson.
On 13 May 1996, Mr Francis Henderson passed away. Shortly after his death, in
June, Rodney Henderson retained solicitors, Stephens & Tozer, and instructed
them to write to Mr Paul Henderson about the administration of the estate. That
letter was the culmination of tensions between the two brothers, over their father’s
affairs, going back at least until early 1994. The letter does not appear in the
evidence. Stephens & Tozer were involved until December 1996. At about the
same time, the brothers were in dispute about some papers and other possessions of
their father which Mr Rodney Henderson had in his possession. They were stored
in two army ammunition boxes.
On 25 February 1997, probate of the will was granted to Mr Paul Henderson, the
executor. Mr Henderson told his brother about probate, and asked for the return of
the two ammunition cases. Rodney declined to do that.
Gilshenan and Luton Are Retained
Then, in March 1997, Mr Rodney Henderson took the step which has led to the
present litigation. He retained Gilshenan and Luton to act on his behalf. Their retainer extended from 17 March 1997 to January 1998, when it was terminated.
They acted on behalf of Rodney Henderson, in relation to matters arising out of the
administration of his father’s estate. The solicitors were handed a bundle of
correspondence up to December 1996.
The correspondence is between Mrs Henderson and Rodney Henderson. It
demonstrates his anger towards his brother and sister in law. That anger arose out
of his feelings of being kept in the dark about the administration of his father’s
estate. After an exchange of letters, he was sent a copy of the will. In his letter of 5
December 1996, which is full of anger and criticism of the two of them, he asked
for information about the price that the Townsville house was sold for, and the
whereabouts of the proceeds. He asked various other questions about family
property. It is apparent that he then felt suspicion, unease and disgust towards the
two of them.
The retainer of Gilshenan and Luton led to Supreme Court proceedings being
launched against Mr and Mrs Paul Henderson, on 17 September 1997. It is
important to appreciate the steps which led to the commencement of those
proceedings. Rodney Henderson’s affairs were dealt with at first by a Mr
Anderson, who was an employed solicitor. Mr Henderson says that he was
telephoned by Mr Anderson on 24 March 1997. Mr Henderson describes the call as
“... hostile ... he made loose accusations of fraud in obtaining probate ... conversion
against me in the administration of my father’s estate, and he alleged that I had
abused my father’s grant of a power of attorney in my favour”. He asked for the
ammunition boxes.” He first wrote to Mr Henderson on 1 April 1997. It is an
aggressive letter. The letter may be taken to reflect Rodney Henderson’s instructions, that he was still concerned about the administration of their father’s
estate, and the disposition of the sale proceeds. There is a request for information
about several term deposits and bank accounts. The contents of the two
ammunition boxes remained a concern.
Then followed an exchange of correspondence between the solicitors and Mr Paul
Henderson. Some letters were addressed to Lynette Henderson, because they were
advised by him that she was the trustee of the “P. Henderson Trust”. He asked that
further enquiries about the trust be sent to her directly.
First, in his letter of 2 April 1997, Mr Paul Henderson advised that:
“The house property was sold with the authority of an unrevoked EPA, ... the nett proceeds were kept in trust bank accounts with the NAB and CBA for the deceased and were applied in accordance with his inter vivos instructions and needs. The same applied to other moneys belonging to the EPA donor. “
Mr Anderson in a reply of the same date, regarded that explanation as “ludicrously
inadequate and frivolous”.
Then, in his letter of 4 April 1997, Mr Henderson sent the deed of settlement of the
P. Henderson Trust to the solicitors. He went on to say, under the heading, Inter
Vivos Disposition;
“This forms no part of the estate ... The nett proceeds of the sale of the testator’s former residence are amongst other moneys presently standing to the credit of ‘L.D. Henderson as trustee for the P. Henderson Trust” a trust created inter vivos for the primary benefit of Phillip Henderson the youngest son of the testator who suffers from Downes Syndrome ... the credit balance of the trust’s CBA Cash Management Call Account at today’s date is $272,167.41 ... I have been informed by the trustee that there have been no distributions from this fund since the date of its original settlement. All other enquiries concerning the trust should be sent to Mrs L.D. Henderson ...”
Mr Wilson is Briefed
On 2 May 1997, the first defendant, Mr Wilson, became involved for the first time.
A conference was held at his chambers. Rodney Henderson attended. He recalls
that Mr Wilson gave him some advice about how to deal with the demand for the
green ammunition boxes. Questions of the possibility of establishing the claim for
alleged fraud and/or conversion/abuse of power of attorney against his brother were
canvassed, upon Mr Anderson’ s suggestion.
The brief to Mr Wilson is not in evidence. He at least had Mr Paul Henderson’s
letter of 4 April 1997 (see above). He settled a letter, which was sent on 8 May, in
which the solicitors asked Mr Henderson for more information about the trust,
observing that Rodney Henderson, and Lynette Henderson, were all beneficiaries.
An account of the funds received by the trustee, and her administration to date, was
requested. Grave concern was expressed about the transactions involving the
father’s funds. An undertaking was demanded, that Lynette Henderson not disperse
or deal with any of the funds presently held in the Cash Management call account,
or any other trust funds, without seven days notice to Gilshenan and Luton.
As well as settling that letter, Mr Wilson wrote a brief memorandum of advice on
7 May, he noted that further investigations and inquiries about their father’s
testamentary capacity would be undertaken, and that the question of his capacity to
grant the EPA would also be investigated. Those suggestions were later referred to
by Mr Paul Henderson as a “checklist” of things to do.
Mr Paul Henderson’s letter to Gilshenan and Luton dated 8 May, continued his
complaints about the two ammunition cases containing various items of his father's
property. He complained about Rodney Henderson’s conduct with regard to that
property. He demanded the return of his father’s property, asserting his right as
executor to do so.
On 8 May Rodney Henderson and Mr Anderson delivered the ammunition boxes to
Mr Henderson’s office. Some documents had been removed, and copied.

On 14 May, Mr Anderson wrote to Lynette Henderson, as he had been invited to
do, with a similar request for information about the affairs of the P. Henderson
Trust. He requested her undertaking not to deal with any of the Trust’s funds,
without seven days prior notice to his firm.
On 16 May, Paul Henderson replied to Messrs Gilshenan and Luton. He asserted
that there had been no distribution from the trust since the date of settlement, and
that there would not be any distribution whatsoever until after prior consultation
with Rodney Henderson.
Lynette Henderson replied to the solicitors on 20 May 1997. She asserted that there
had been no distribution of trust moneys. She enclosed a copy of the CBA bank
statement. She said that there would no distribution attempted, “until after Rodney
has been given the right to participate”. She continued by explaining that there had
been an offer to attend a mediation with Rodney Henderson, conducted by the ADR
Branch of the Department of Justice, on the topics of his father’s will, the deed of
settlement, and the future welfare of Phillip Henderson.
Mr Anderson then left Gilshenan and Luton. The file was taken over by another
employed solicitor, Ms Piccolo. Mr Anderson briefed her, in an internal
memorandum of 2 June 1997. He noted that the undertakings as requested, of Mr
and Mrs Henderson, had not been provided. He recorded the results of his inquiries
about the testator’s capacity to make his will – a witness had informed him that
Francis Henderson understood what was in the estate, and that he was in a fit state
to sign the will. He added a comment – “You will see from reading the file that a
lot of Paul Henderson’s letters to us amount to nothing more than verbose dribble,
yet he very cunningly makes allegations in those letters which require addressing
...”.
He recorded the fact, also deposed to by Rodney Henderson, that on 8 May 1997 he
and Mr Anderson delivered the two green ammunition cases to Mr Paul
Henderson. Mr Anderson’s diary note, about the delivery of the ammunition boxes,
and Rodney Henderson’s keeping certain personal papers, is consistent with
Rodney Henderson’s affidavit.
On 8 August 1997, Ms Piccolo attended a conference at Mr Wilson’s chambers.
Rodney Henderson was not present. However, Mr Wilson’s written advice of 8
August records that there was a statement from Mr Rodney Henderson in his brief .
That statement is evidently the one referred to in paragraph 11 of Mr Ward’s
statement, where he says that his firm had taken a statement from him before
instituting the Supreme Court action. It is not signed. Rodney Henderson says in a
Notice to Admit Facts that, “Anthony Anderson delivered a brief to A.M. Wilson
without a statement in writing procured by him from and signed by (myself)”
(emphasis added).
The letter was in a sealed envelope attached to Mr Ward’s affidavit. In my opinion,
Mr Rodney Henderson’s privilege in relation to that statement was waived. He has
been prepared to disclose his relationship with his former solicitors. He cannot do
that without revealing an important step in that relationship. At this hearing, Mr
Paul Henderson objected to the envelope being opened, saying that it was a
privileged document. That objection was overruled.
The correspondence continued. On 12 August, Ms Piccolo wrote to Mrs Henderson
and repeated the solicitor’s demands for details about the trust fund. In effect, they
demanded an account of the trust or estate funds which apparently amounted to
$272,167.41. She reiterated the demand for an undertaking. The letter asserted that
moneys had been paid to her, as trustee, by her husband in breach of his obligation
as his father’s attorney.
Mrs Henderson replied on 15 August. She repeated her wish to attend a mediation,
to canvass the possibility of settlement. She said that she would send bank
statements showing the entire history of the account. She renewed her undertaking
not to distribute any funds from the trust bank account until after considerable prior
notice of intention had been given to Rodney, and with his consent. She offered an
undertaking, not to exercise a discretion in Rodney’s favour for less than one-third
of distributions from the fund. She emphasized the need to consider Phillip’s
interests.
Her next letter, of 6 June 1997, is to much the same effect. Then, on 22 August
1997, she enclosed photocopies of bank statements of the trust bank account. She
pressed her wishes to have a mediation.
Then, on 28 August 1997, Mr Henderson wrote to the solicitors in relation to five
deposits that were made to the account of Lynette Henderson as trustee. Each was
made from “protective trust bank account/deposits styled P. Henderson in trust for
F.J. Henderson”. The deposits were made between March and May 1996, and
apparently referred to his father’s moneys and proceeds of the house sale – a total
amount of some $250,000 is mentioned.
He asserted that none of the five deposits were made in exercise of an EPA power.
But they were “lawful dispositions of trust moneys and in accordance with the
testator’s estate planning instructions”.
He again mentioned the possibility of an ADR solution saying: “Notwithstanding
the strict legal position and each party’s belief in the correctness of their views I
suggest there is always ample scope for compromise between dissenting parties.
Again, both the trustee and myself invite Rodney’s views. We believe that he has
had the benefit of ours on several occasions”.
On 1 September 1997 he again suggested mediation. On 3 September 1997, Ms
Piccolo for the solicitors wrote to Mr Henderson. She asked for all the bank
statements and documents pertaining to the five transactions referred to above. Her
letter concluded:
“We note that you still have not provided a response to our second, third, fourth and fifth queries contained in our letter of 14 August 1997. In view of this, we have instructions to issue proceedings against you, and this shall be delivered to you in the near future”.
On the same day, the solicitors wrote to Mrs Henderson in similar terms.
On 4 September, Mrs Henderson wrote and re-iterated the assurance that she
offered in her letter of 15 August and complained about the failure to acknowledge
her efforts to have the matter mediated.
On 4 September, Mr Paul Henderson wrote to the solicitors. He again referred to
the need to take the moneys of his father into protective custody, and the proceeds
of the house property, because of Rodney’s conduct. He then repeated his wish for
a negotiated settlement.
Then, on 17 September 1997, Rodney Henderson’s proceedings were commenced
in the Supreme Court.
Mr Rodney Henderson ended the retainer on 22 January 1998. He had direct
negotiations with his brother. The details are in a deed which is not in evidence
here.
Rodney Henderson’s Statement
That statement is instructive. It is important because it shows his instructions, and
the information that he provided, before the proceedings were commenced. He
complains about Paul Henderson’s conduct, who arranged for their father to make
a new will. Rodney says that he was denied a copy until more than six months after
their father’s death.
The statement records that Rodney Henderson participated in the family difficulties
caused by their father’s deteriorating physical and mental health in about mid- October 1993. Finally, as a hostel place could not be found in Townsville, and he
could not remain in hospital, he came to Brisbane in April 1994, and resided at
Tanderra Lodge at Corinda. He was aware that his father had given $20,000 to the
Endeavour Foundation in late 1993, as spending money for his son Phillip, for the
rest of Phillip’s life. Paul Henderson then found out about the transfer of those
funds, became angry, and demanded their return. Rodney Henderson believed that
the Foundation returned the money to Paul Henderson.
His statement records his belief about his father’s grant of an EPA to Paul
Henderson in 1991. He says that he was told by several people, who knew his
father, that his father wished to revoke that power of attorney. As he puts it, “the
primary reason why my father wished to alter the situation with respect to his EPA
was that he was concerned about being swindled by Paul and he also wished to treat
each of his sons equally” (para .22).
In April 1994 Rodney Henderson says that he was contacted by the manager of
Tanderra Lodge, informing him that his father was extremely upset and confused
following a visit from Paul Henderson, Lynette Henderson and some other man
who had visited him. Then, about a week later, he met his solicitor, Mr Ross
McTaggart of Stephens & Tozer. His father told him the day before that Paul was
having the locks on their father’s house in Townsville changed so that he, Rodney,
would not be able to stay there. He says that Paul Henderson’s solicitor told him,
on the same day, that Paul did not give his permission to stay at his father’s house
when he went to Townsville. Mr McTaggart advised him that he could stay there if
his father gave his permission.
Rodney Henderson raised with Mr McTaggart the prospect of obtaining an EPA
from his father, in place of Paul. Mr McTaggart declined to act, because of a
conflict, and introduced another solicitor, Mr John Sherwood. Rodney then went
and visited his father at Tanderra Lodge. His father granted him permission to stay
in the Townsville house, and gave him a written authority. The Lodge manager
witnessed it. His father signed it. His father also stated that he wanted his EPA,
“taken off Paul”. His father asked him to arrange for a solicitor to act on his behalf.
He attended Mr Sherwood's office. The solicitor drew up the necessary documents
in his office. They then attended together at Tanderra Lodge to see his father. The
manager and owner of the lodge attended his father’s room. His father stated that
he wished his EPA to Paul to be revoked, and an alternative EPA granted to the
Public Trustee of Queensland.
Mr Sherwood was then alone with his father. The documents were signed by him.
Rodney Henderson states that his father gave instructions to and received advice
from Mr Sherwood.
He recounts that Paul and Lynette Henderson then came to Tanderra Lodge and
took his father away “in the middle of the night”. Mr McTaggart discovered that
his father had been taken to Sunsetholme in Brisbane. He went to visit him. He
noted that his condition was very bad. There was then a need for some action to
secure a permanent place for their father in a nursing home. He had no authority to
act on his father’s behalf, and had no access to his funds so, “I then wrote to Paul
and his wife and reluctantly returned responsibility for my father’s care to them”.
He says that his father had apparently made a complaint to the Queensland Law
Society about Mr Sherwood’s conduct. His father told him that he had not made any complaint about his solicitor. He saw a copy of the complaint. He believed
that the letter sent to the QLS was drafted by Paul, and that his father’s signature
was forged.
After two trips to hospital, his father was placed in the nursing home section at
Sunsetholme. He stayed there until his death in May 1996. While his father was at
Mt Olivet, in December 1994, he asked Rodney to join his sisters in Brisbane, and
for them to go to the Public Trustee’s Office to “sort things out”, and to find where
his money had gone. He got nowhere with the Public Trustee. He says that in
April 1994 Paul, through his solicitors, had threatened legal action against him if he
went to “third parties” about his actions. He did not further pursue the matter with
the Public Trustee.
He notes that the Magistrates Court plaint and summons, which was issued against
Mr Sherwood in April 1996, was at a time when his father could not even speak.
He says that his father had no way of indicating what he was thinking from about
Christmas 1995. He says that the offices of A.W. Bale & Sons, and Arthur Browne,
solicitors, did not act on behalf of his father but were instructed directly by Paul.
Mr Wilson’s Advice
On 8 August 1997 Mr Wilson wrote a memorandum of advice to the solicitors. It
can be summarized this way:

(a) He noted that Mr and Mrs Henderson had failed to respond to
several requests for information – though she had said there would not be any distribution until after Rodney had been given the right to
participate;

(b) Paul Henderson had purported to sign on his father’s behalf as
settlor, the P. Henderson Trust Deed of 16 March 1996. It created
beneficiaries other than Phillip Henderson, Lynette Henderson
became the trustee;

(c) their father’s will was assumed to be valid, because there was no
evidence to support a challenge to its validity (a reference to the
inquiries about the testator’s capacity);

(d) his instructions indicated that the father would not have authorized,
and did not authorize, payment of funds now over $270,000, either
to Paul Henderson (purporting to act under the EPA) or to Lynette
Henderson (allegedly as trustee);

(e) his instructions were that their father regularly complained that Paul
Henderson had taken control of his affairs and that he could not find
out what had happened to his money;

(f) there were a number of matters which could be raised about Paul
Henderson’s credit however, an explanation might emerge to explain
the apparent conflict of interest between Paul Henderson and his
father;

(g) he suggested further letters of demand (which he settled) before any
legal proceedings were commenced;

(h) he enclosed a settled statement of claim, designed to recover from
Lynette Henderson the proceeds of the trust fund so that they might
be held by Paul Henderson for distribution under their father’s will;
(i) he suggested further investigation with regard to the deceased’s
capacity before his death;

(j) further investigations should be made into the “many and varied
alleged signatures of the deceased appearing on a number of
documents”;

The Solicitors’ Position

In his affidavit, Mr John Ward, a partner of Messrs Gilshenan and Luton deposes to
the facts which were known to his firm before it instituted the Supreme Court action
on 17 September 1997. He says that he supervised Mr Anderson and Ms Piccolo.
His recollections are consistent with the facts set out above. His recollections are
these:

(a) Paul Henderson had sold his father’s house for $104,000;
(b) Paul Henderson said, in his letter of 4 September 1997 that he had
taken the house property and his father’s moneys “into protective
custody”, in December 1992, to protect them from Rodney;

(c) there were doubts about the father’s mental capacity, even
mentioned by Mr Paul Henderson in his letter of 8 May 1997;

(d) sums totalling at least $246,000, of the father’s money, had been
paid into a bank account operated by Lynette Henderson as trustee of
the P. Henderson Trust (again appearing from Mr Paul Henderson’s
letter). Paul Henderson had asserted that such payments were lawful
dispositions of trust moneys in accordance with his father’s estate
planning instructions (Mr Paul Henderson’s letter of 28 August
1997);

(e) Mr and Mrs Henderson proposed to treat the sum of about $272,000
as an asset of the P. Henderson Trust, rather than being part of the
assets of the estate, of which Mr Rodney Henderson was a residuary
beneficiary to the extent of a one-third interest.

In conclusion, he says that, “Rodney Henderson appeared to have meritorious
action against Paul and Lynette Henderson; that assessment was supported by
counsel’s advice and the proceedings were instituted on the basis of Rodney
Henderson’s instructions”.
Mr Rodney Henderson’s Affidavit
Mr Rodney Henderson says in his affidavit, read in these proceedings, that the
solicitors sought and gained his instructions to file the writ of summons on Mr and
Mrs Paul Henderson. Then, in about February 1998, his claim was compromised
“in favour of my said brother and his wife directly with them and in confidence”.
However, in these proceedings, Mr Rodney’s Henderson’s assertions should be
considered, as he is prepared to swear to them. (Mr Paul Henderson’s firm is
named on the affidavit, and the language suggests that he settled it.) In effect, he
goes on to allege that:

(a) the solicitors had not advised him that they had established that there
were no grounds for attacking the will or the grant of probate to Mr
Paul Henderson, when they gained his instructions to file a writ.

(b) Mr and Mrs Paul Henderson wrote comprehensive letters of
explanation that were not passed on to me, or “were passed on to me without any explanation or satisfactory explanation of their
significance”.

(c) upon perusal of the solicitors’ file, it had become obvious to him that
they had withheld vital information from him. He formed the view
that they had poorly handled his instructions. His grievances are set
out in a Notice to Admit Facts – see exhibit RJFH-5. At no time did
he hold any documents supporting the allegation, in para. 10(c) of
the statement of claim settled by Mr Wilson, (which asserted that Mr
Paul Henderson received the sale proceeds of the house sale and
thereafter kept them). It was made without any documents of Mr
Rodney Henderson supporting such an allegation.

(d) the solicitors had received, “copious financial explanation and
information from Mr Paul Henderson and Mrs Lynette Henderson of
which I was not made aware. That knowledge was either withheld
or inadequately explained to me before and after Mr Wilson’s
second conference”.

(The Notice to Admit Facts was prepared on Rodney Henderson’s behalf in a
Magistrates Court action brought by Gilshenan and Luton, in which they sought to
recover their fees from him. Mr Paul Henderson represented him in that action.)
The Request for Particulars
Mr Brian Bartley has acted on behalf of the second defendant, first as a partner at
Corrs Chambers Westgarth, and then on his own account. On 21 September 1999,
he drew Mr Henderson’s attention to R. 150 of the Uniform Civil Procedure Rules, and sought particulars of facts from which it was to be inferred that Gilshenan and
Luton knew that the proceedings on behalf of Mr Rodney Henderson had no
prospects of success, and the facts from which it was to be inferred that they
commenced the proceedings for a collateral purpose and in order to vex Mr
Henderson.
Then follows a long series of letters about such particulars. On 27 September 1999
Mr Henderson said that he had briefed counsel and would deliver a second
amended statement of claim as a matter of priority containing the necessary
particulars. That did not happen. On 22 December 1999 Gilshenan and Luton filed
an application for particulars. The application was resolved on the basis that Mr
Henderson would provide the particulars by 22 February 2000, failing which his
proceedings against the second respondent would be struck out, as against the
second defendants. That order was duly made on 4 February 2000.
On 22 February 2000 Mr Henderson provided some particulars which Mr Bartley
regarded as being inadequate. He threatened a further application to the court. The
particulars he requested were not received. He then filed the application of 26 July
2000, asking that Mr Henderson’s action be struck out.
The application came before Mr Justice Byrne of the Supreme Court on 8 June
2000. Service on Mr Henderson had been effected too late, and, in any case, the
learned judge remitted the proceedings to this court.
The Hearing of the Applications
Both applications were heard together. Gilshenan and Luton were represented by
counsel. Mr Henderson appeared on his own behalf.

Mr Henderson explained that his application for leave to deliver a further amended
statement of claim arose out of his letter dated 22 February 2000, in which he said
that an amended statement of claim would be delivered. He said that the amended
pleading was in the process of being prepared as a result of the additional non-party
disclosure and independent inquiries. Those independent inquiries related to his
efforts to obtain freedom of information material about Mr Wilson. He said that 21
days would be required to produce the amended pleading. He said that he could not
use counsel who had settled his statement of claim, because he and his counsel had
both been called “nuts” by Mr Wilson.
Mr Henderson then suggested that the matter was too complex for a hearing in
chambers, and should be sent to the civil list. However, most of the day was
available, and full submissions were heard from each side. The transcript of the
submissions is some 80 pages long.
At the end of the hearing, it was made clear to Mr Henderson that he could deliver
his further amended statement of claim if he wished, while this decision was
reserved. However, there has been no sign of an amended pleading.
Mr Henderson resisted the opening of the envelope which contained Rodney
Henderson’s statement. That objection was overruled. He then submitted that there was no evidence that Mr Wilson had the statement before him. However, Mr
Henderson had overlooked the reference to the statement on page 3 of Mr Wilson’s
memorandum of advice of 8 August 1997. It is clearly the same statement – on
page 7 of his advice, Mr Wilson refers to paragraphs 26-28 of the statement where
there is reference to people involved in their father’s care and treatment in later
years. Paragraphs 26-28 of the statement refer to those who knew him at Tanderra
Lodge.
Mr Henderson was offered an opportunity to cross-examine Mr Ward about the
statement, but he did not wish to do so.
Mr Henderson complained that proceedings had been launched against him before
the matters set out in Mr Wilson’s “check list” on 7 May 1997 had been completed.
The first of those was a suggestion that further investigations and inquiries be
undertaken concerning their father’s capacity to make a valid will. However, that
was assumed, and Rodney Henderson’s statement of claim did not challenge that
capacity. Mr Henderson has nothing to complain about.
Mr Wilson’s second query was about their father’s capacity to grant the EPA.
Paragraph 8 of the statement of claim puts in issue the due execution of that EPA,
but does not allege that there was lack of capacity to grant it. In any case, bearing
in mind Rodney Henderson’s comments about their father’s deteriorating mental
condition, it is hardly surprising that Mr Wilson suggested that an effort be made to
speak to the Justice of the Peace who witnessed that document. In any case, the
statement of claim which was settled was based on the then available information.
Mr Henderson made it clear that his basic criticism was a failure on the part of Mr
Wilson and the solicitors to investigate fully Rodney Henderson’s allegations
before issuing legal proceedings against him. As he put it during submissions –
“On the material presented to you today there is a reasonable chance that there was no factual basis for making those allegations (T. 59) ... the duty was to complete the checklist which is referred to in the affidavit was on the obligation of both the defendants not (to) just believe if this was in fact the statement which was provided to Mr Wilson. They had an independent duty to check out the validity of all this stuff. That is the regimen of the case upon which this is based; White Industries v Flower & Hart ... that a counsel must make independent inquiries to satisfy himself that there is a factual basis for the matters that he alleges in the nature of fraud – are tantamount to fraud ... we could go on for seven weeks in producing everything but the gravamen is everything had not been completed, as appeared in Mr Anderson’s diary note, and it should have been before any further – it would have been fair to Mr Wilson but on the other hand Mr Wilson had an independent duty, as did the counsel in White Industries v Flower & Hart to make independent inquiry before making an allegation of fraud (T. 68 & 69) .... (if a client came to me with these facts) I would conduct independent search to verify before taking the statement ... I’d be searching bank accounts. I’d be writing to the previous banks of the – I mean, it’s alleged in that statement of claim that the moneys are being taken from other than trust moneys ... (T. 75)”
Mr Henderson’s written submission was to the same effect: “the solicitors had a
high duty not to commence proceedings as settled by Mr Wilson without verifying
the factual basis for making allegations of fraudulent behaviour or those tantamount
to fraud against (my wife and myself)”.
Mr Henderson then mentioned the well established authorities, that much caution
has to be exercised before an action is terminated summarily. Two of his references
should be kept in mind:
“A case must be very clear indeed to justify the summary intervention of the court in preventing a plaintiff submitting his case for the determination in the appointed manner by the court, with or without a jury (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J)”
“The test to be applied has been variously expressed”, “so obviously
untenable that it cannot possibly exceed.”
“Manifestly groundless”.
“So manifestly faulty that it does not admit an argument”
“Discloses a case which the court is satisfied cannot succeed”,
“Under no possibility can there be a good cause of action”
“Be manifest that to allow them (the pleadings) to stand would
involve useless expense” (General Steel Industries v Commissioner
of Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129.)
Abuse of Process
The concept of abuse of process has recently been considered by the High Court of
Australia, and by the Federal Court. In Williams v Spautz (1992) 174 CLR 509, the
High Court was concerned with an application to stay a criminal prosecution, on the
ground that it was an abuse of process. It was recognized that criminal proceedings
might be permanently stayed, to prevent an abuse of the court’s process, even if it
be assumed that the moving party had a prima facie case.
The joint judgment of Mason CJ, Dawson J, Toohey J and McHugh J discusses the
tort of collateral abuse of process. That is a cause of action which has been
recognized by the High Court at least since the decision in Varawa v Howard Smith
Co Ltd (1911) 13 CLR 35. As they put it:
“Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to

effect an object beyond that which the legal process offers. ...
This court has regarded the purpose of the party instituting the proceedings as of crucial importance. In Varawa, Isaacs J observed:
‘in the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the processes employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon with the court is asked to adjudicate they are regarded as an abuse of process for this purpose.’
...
There is no suggestion elsewhere that fraud is an additional and indispensable element in the doctrine of abuse of process .... Nowadays the remedy by way of summary judgment is part of the regular course of proceedings. But that remedy is available only in cases in which the plaintiff is bound to fail in his or her action.
The predominant purpose is the criterion. ... It is well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is a heavy one ... and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.”

In a separate judgment, Brennan J. observed that an abuse of process occurs when
the only substantial intention of a plaintiff is to obtain an advantage or other benefit,
to impose a burden or to create a situation that is not reasonably related to a verdict
that might be returned or an order that might be made in the proceeding.

In White Industries (Qld) Pty Ltd v Flower and Hart 165 ALR 169, a Federal Court
judge found that the solicitors for the plaintiff in the action believed, that right from
the start, that the proceeding could not be won. The solicitor’s purpose in
instituting the proceeding was to gain a temporary bargaining stance and to secure a
bargaining position for his client; it was not to vindicate a right of the client. The
purpose of the proceeding was to delay the time at which the client would be
obliged to pay White Industries money due under a contract. The bargaining
position sought was one of time, not one related to the vindication of the client’s
rights or the strength of its proceedings.
The trial judge referred to the decision in Williams v Spautz (1992) 174 CLR 509.
He was considering a submission, that the plaintiff’s ultimate aim of settling the case advantageously did not constitute the proceeding and abuse of process. In
dealing with that submission, he said:
“That proposition is predicated upon the fact it assumes, that the plaintiff is instituting the proceeding to vindicate a right asserted by it. The (judgment of Brennan J in Williams v Spautz) assumes that seeking the compromise of a claim made in the proceedings is a legitimate means to achieve the purpose of the protection or vindication of particular rights and immunities and the other legitimate purposes to which his Honour refers. In my opinion, instituting a proceedings not for the purpose of vindicating a right but for the purpose of delaying or deferring the time for payment of an obligation where the proceeding has no or little prospect of success is not the same as instituting a proceedings to vindicate a right but with the aim or settling or compromising the claim before trial..”
On appeal (Flower & Hart v White Industries 1999 87 FCR 134) the Full Court of
the Federal Court dealt with the abuse of process this way:
“In any event, the proceedings brought against White Industries was such that on the findings of the learned primary judge they could never succeed. At the time they were instituted there was no purpose of seeking vindication of a legal right claimed in the proceeding ... where delay is the purpose, in other words, the end in itself, which is this case, the institution of and prosecution of proceedings will be an abuse of process. An abuse of process exists where proceedings are brought not to vindicate a legal right but for some other purpose.”
Mr Henderson’s statement of claim must be understood in the light of those
principles. It alleges that Mr Wilson and Gilshenan and Luton commenced
proceedings on behalf of his brother Rodney, when they knew that those
proceedings had no worthwhile prospects of success. Their purpose in doing that
was to vex Mr Henderson. The reference to “a collateral purpose of putting (Mr
Paul Henderson) under pressure to compromise such claims” must be understood as
alleging that such pressure to compromise was unjustifiable, as the action had no
worthwhile prospects of success in its own right.
There is a further allegation that Mr Wilson and the solicitors would have realized
that the proceedings had no worthwhile prospects of success, and would vex Mr
Henderson, if they had given reasonable attention to the relevant law and the facts.
However, such an allegation would not seem to take the claim of abuse of process
any further. The essence of the claim is that their purpose was improper, not that
they might have been careless about the law and the facts.
Therefore, the question is this – does Mr Paul Henderson have a prospect of
proving that a substantial purpose of Mr Wilson and the solicitors was to use the
legal proceedings against him as a means of obtaining some advantage for which
they were not designed, or some other collateral advantage – that is, to vex him and
to put him under pressure to compromise Rodney Henderson’s claims, which
otherwise had no worthwhile prospects of success in the court.
Conclusions
Essentially, the facts are simple. A new client comes to the solicitors. He
complains about the conduct of his brother, himself a solicitor, in the conduct of
their father’s affairs. A statement is taken. The client has strong feelings about his
brother’s conduct. He mentions a number of suspicious circumstances. There is
extensive correspondence. It emerges that Mr Paul Henderson, acting either with or
without the authority of an enduring power of attorney, has dealt with some
$250,000 of their father’s money during his lifetime. It has either been “taken into
protective custody” or has been an “inter vivos disposition”. It was later transferred
to the P. Henderson Trust, a discretionary trust with various family members as
potential beneficiaries. Mrs Lynette Henderson was the trustee. If it had been in their father’s estate, he would have been entitled to one third. Mr and Mrs
Henderson propose mediation.
There was a conference with counsel. The client was present. A second
conference, without the client, resulted in a statement of claim. Supreme Court
proceedings were commenced. The client knew that was being done. Counsel’s
second, and longer, written advice explained the basis of the legal proceedings. A
good deal of factual information was then available.
Later, the client settled the proceedings by direct negotiations with his solicitor
brother. The details are not known. The solicitor brother suggests that the
proceedings were brought against him for a collateral purpose, and that they were
an abuse of process. The client now complains that the solicitors should have
investigated matters more carefully, and better explained his brother’s responses.
It is necessary to consider the conduct of Mr Wilson in settling the pleading and the
solicitors’ conduct up to early 1998, when the proceedings were discontinued. The
principles explained by the High Court and Federal Court must be applied. Might
there be an abuse of process? In truth, there is simply no evidence that either of
them had any purpose which might have amounted to an abuse of process. On the
contrary, all the considerable evidence mentioned above shows that they were
concerned to institute legal proceedings which would be carried to a conclusion.
There is no hint of the proceedings being a mere stalking-horse to secure a
settlement favourable to Mr Rodney Henderson. The facts are nothing like those in
White Industries.
Mr Henderson complains (rightly, I think) of Mr Anderson’s language, which was
indeed abrasive and insulting. But there is nothing to show that it arose out of any
improper purpose – if anything, it shows that he was accepting the merits of
Rodney Henderson’s complaints. Likewise, Mr Henderson complained that Mr
Wilson disclosed a personal prejudice not only against himself, but also against his
counsel, in referring them to as being “nutty”. Prejudice or not, the remark is a
straw in the wind compared to his written advices and the settled pleadings.
Nothing in the later correspondence from Mr Henderson should have caused the
solicitors to have second thoughts. The available information, including Rodney
Henderson’s instructions, revealed a situation which easily justified the institution
of the legal proceedings, and their continuation. Mr Wilson was careful not to
allege fraud.
Mr Rodney Henderson’s affidavit, and the extract of Mr Henderson’s complaints
about the lack of investigation (quoted above) are beside the point. Even if it be
true that a complete investigation of all the facts would have revealed an absence of
merit in Rodney Henderson’s complaints, that does not mean that his legal advisers
abused the court process in launching proceedings when they did.
There is no reason to think that any further particulars, based on the non-party
disclosure, could change the merits of Mr Paul Henderson’s action. He has had
almost six months since his brother gave him non-party disclosure. It is impossible
to see that freedom of information material about Mr Wilson can amount to
anything – especially against the solicitors. There is no prospect of proving that the
defendants had a substantial purpose, to abuse the court’s process. Those proceedings against the solicitors cannot continue. Mr Henderson would be well
advised to discontinue his proceedings against Mr Wilson.
The order of the court is that:

(a) the plaintiff’s application is dismissed;
(b) the plaintiff’s action against the second defendant is dismissed.

DISTRICT COURT OF QUEENSLAND
CITATION:	Henderson v Wilson & Anor [2000] QDC 386
PARTIES:	PAUL DAVID HENDERSON Plaintiff v ALAN MUIR WILSON First Defendant and GILSHENAN AND LUTON (A FIRM) Second Defendant
FILE NO/S:	D2410 of 2000
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application
DELIVERED ON:	10 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2000
JUDGE:	Judge Brabazon QC
ORDER:	Order that the plaintiff’s action against the second defendant be dismissed
CATCHWORDS:	Abuse of process – summary dismissal of action – Williams v Spautz (1992) 174 CLR 509 and Flower & Hart v White Industries (1999) FLR 134 considered
COUNSEL:	Mr D. Clothier for the applicants/defendants Mr Paul Henderson, in person
SOLICITORS:	Brian Bartley & Associates for the applicants/defendants Paul D. Henderson
JUDGMENT
The Applications

(a)	Paul Henderson had sold his father’s house for $104,000;
(b)	Paul Henderson said, in his letter of 4 September 1997 that he had

[2000] QDC 386

10/11/2000