In the Matter of G, AL - [2020] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
In the Matter of G, AL
[2020] SASC 144
Judgment of The Honourable Justice Stanley
11 August 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - NON-PARTY INTERVENTION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - PROPER OR NECESSARY PARTY AND STANDING
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
The plaintiff in these proceedings is a legal practitioner.
The plaintiff prepared a will for the deceased in March 2015. By the terms of the will the plaintiff was appointed the sole executor and trustee. A legacy in lieu of commission was gifted to the plaintiff. There was a direction in the will that the testator be cremated and his ashes returned directly to a relative in Lithuania. The will did not contain a charging clause permitting the executor to charge in a professional capacity for work in relation to the administration of the estate.
The testator died in August 2015. The plaintiff used her own firm to carry out probate and administration of the deceased’s estate. In December 2015 she raised an invoice of the legacy sum relying on the legacy clause in the will. Probate was granted on 10 March 2016.
In April 2016 the plaintiff travelled to Lithuania and delivered the ashes of the deceased and his late wife to a relative of the deceased. The plaintiff charged the deceased’s estate professional fees for eight days, on the basis of eight hours per day. She also charged the estate travelling expenses.
Between April and November 2016 the plaintiff raised a number of invoices for professional fees in relation to the administration of the estate.
At no time did the plaintiff apply to the Court for directions.
In April 2019 the Legal Profession Conduct Commissioner (the Commissioner) charged the plaintiff with professional misconduct relating to the plaintiff’s conduct in the administration of a deceased estate. Proceedings were commenced in the Legal Practitioners Disciplinary Tribunal (the Tribunal).
In October 2019 the plaintiff commenced proceedings in this Court, seeking declaratory relief relating to her charging and administration of the estate. The Commissioner seeks to intervene for the purposes of applying for a stay of the proceedings in the Court pending the hearing and determination of the charges in the Tribunal.
Held, per Stanley J (dismissing both applications but joining the Commissioner as defendant):
1. Intervention should be refused where there is no reason why the proposed intervener should not be joined as a defendant to the action. The Commissioner seeks to intervene not to assist the Court, but to stop the proceedings while remaining a non-party. He should not be permitted to do so, but should be joined as a defendant.
2. A proper basis for the exercise of the discretion to stay the proceedings in this Court has not been established. The proceedings in this Court and the Tribunal are dependent proceedings. The proceedings in the Tribunal cannot fairly proceed until the action in this Court has been decided. There are issues in this Court which cannot be determined in the Tribunal. The application for a stay should be refused.
Administration and Probate Act 1919 (SA) s 70; Supreme Court Civil Rules 2006 (SA) r 89, r 192, referred to.
Jeavons v Chapman [2008] SASC 249; Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1) (1988) 142 LSJS 121; Yan v Kong [2020] SASC 143; Levy v The State of Victoria (1997) 189 CLR 579, discussed.
The Queen v Ludeke; ex parte The Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513; Roadshow Films Pty Ltd v IINet Ltd [No 1] (2011) 248 CLR 37; Westpac v Gibbons (No 4) [2012] SASC 80; Viscariello v Tamasauskas [2018] SASC 111, considered.

In the Matter of G, AL
[2020] SASC 144
Civil: Application
STANLEY J:
Introduction

The plaintiff in these proceedings is a legal practitioner.
On 1 April 2019 the Legal Profession Conduct Commissioner (the Commissioner) charged the plaintiff with professional misconduct.
The charges relate to the plaintiff’s conduct in the administration of a deceased estate. There are five counts.
The plaintiff prepared a will for the deceased, MS, in March 2015. By the terms of the will the plaintiff was appointed the sole executor and trustee. A legacy of $3,000 in lieu of commission was gifted to the plaintiff. There was a direction in the will that the testator be cremated and his ashes returned directly to a relative in Lithuania. The will did not contain a charging clause permitting the executor to charge in a professional capacity for work in relation to the administration of the estate.
The testator died in August 2015. The plaintiff used her own firm to carry out probate and administration of the deceased’s estate. On 2 December 2015 she raised an invoice in the sum of $3,000 relying on the legacy clause in the will.[1] Probate was granted on 10 March 2016.
[1] Clause 7(c).
On 10 April 2016 the plaintiff travelled to Lithuania and delivered the ashes of the deceased and his late wife to a relative of the deceased, ER. The plaintiff charged the deceased’s estate professional fees for eight days, on the basis of eight hours per day, at the hourly rate of $350 plus GST amounting to $24,800. She also charged the estate travelling expenses totalling $14,956.59.
Between April and November 2016 the plaintiff raised a number of invoices for professional fees in relation to the administration of the estate totalling in excess of $30,000, including the $24,800 referred to earlier.
At no time did the plaintiff apply to the Court for directions.
The Commissioner commenced an investigation having received a report from the Law Society of South Australia.
There have been a number of directions hearings conducted before the Legal Practitioners Disciplinary Tribunal (the Tribunal). There has not been a substantive hearing of the charges by the Tribunal. The first directions hearing was on 23 May 2019.
On 18 October 2019 the plaintiff commenced proceedings in this Court. The plaintiff in these proceedings seeks a declaration that there was contract of retainer between herself and MS in relation to her personally repatriating the ashes and a declaration that she is entitled to charge professional fees and travel‑related expenses to the estate.
In the alternative, the plaintiff seeks a declaration that she is entitled to recover $39,237.77 under the terms of the will; rectification of the will to insert an appropriate charging clause; or an order pursuant to s 70 of the Administration and Probate Act 1919 (SA) (the APA) granting additional executor’s remuneration or a special allowance with respect to personal delivery by her of the deceased’s ashes to Lithuania.
In support of these proceedings, the plaintiff has sworn an affidavit which relates to matters which are also the subject of the charges in the Tribunal.
These proceedings require a determination of whether, by reason of a retainer between the plaintiff and MS, while he was still alive and competent, the plaintiff had authority to charge for the repatriation of his ashes and those of his wife, despite the absence of a charging clause in his will, and, if she did not, whether, however, the will should be rectified to record the conferral of that authority, or whether her charges can and should be confirmed as an appropriate subject for executor’s remuneration pursuant to s 70 of the APA.
The Commissioner seeks to intervene for the limited purpose of applying for a stay of the proceedings in the Court pending the hearing and determination of the charges in the Tribunal.
The Commissioner relies upon his own affidavit. It sets out the nature of his interest, the object in seeking permission to intervene and the extent of the proposed intervention, namely, solely to seek a stay of these proceedings until the determination of the charges in the Tribunal.
The Commissioner contends that he has standing to intervene pursuant to Supreme Court Civil Rules 2006 (SA) (SCR) r 89;[2] that the plaintiff is seeking declaratory relief which is intended to cure the misconduct which is the subject of the charges in the Tribunal; that there is no proper contradictor otherwise before the Court; and there are factual issues to be tried and evidence to be tested in these proceedings which are also critical to the resolution of the disciplinary proceedings before the Tribunal, including, but not limited to, whether the plaintiff was acting as executor of the estate or acting pursuant to some separate contractual agreement with MS. He submits this justifies the exercise by the Court of its power to stay these proceedings to enable the disciplinary proceedings to be finalised. The Commissioner submits that even if the Court was to continue to hear the plaintiff’s application and grant the declaratory relief she seeks, that would not resolve the charges before the Tribunal and therefore there is no useful purpose in these proceedings.
[2] These applications were heard and determined under the 2006 Rules.
At issue on the application by the Commissioner to intervene in these proceedings is first, whether it is permissible for the Commissioner to seek an order staying these proceedings as an intervener rather than as a party to the proceedings; second, whether the Commissioner should be joined as a defendant to these proceedings; third, whether there are any proper grounds for staying these proceedings; fourth, whether the grounds the Commissioner seeks to rely on are not grounds for staying an action but rather are grounds for refusing the substantive relief sought by the plaintiff; fifth, whether a stay of these proceedings pending the hearing and determination of the charges in the Tribunal would place the plaintiff in real jeopardy of serious and irremediable prejudice; and sixth, whether the evidence of the plaintiff’s ill-health indicates the need for a speedy and efficient resolution of these proceedings which would favour the refusal of the stay. Some of these issues overlap or blend into each other.
Intervention
The principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy.[3] SCR 89 relevantly provides:
[3]    The Queen v Ludeke; ex parte The Customs Officers’ Association of Australia, Fourth Division [1985] HCA 31, (1985) 155 CLR 513 at 527.
(1)The Court may, on application by a person who seeks to intervene in an action, permit intervention on conditions determined by the Court.
(2)An application for permission to intervene must be supported by an affidavit stating—
(a)     the nature of the applicant's interest in the action (which need not be a legal or equitable interest); and
(b)     the applicant's object in seeking permission for intervention; and
(c)     the extent of the proposed intervention.
…
(4)The Court may permit intervention on conditions it considers appropriate.
(5)The Court may, on application or on its own initiative, vary or revoke an order allowing non-party intervention under this rule.
SCR 89 does not prescribe criteria for when an order for intervention may be appropriate. The decision whether to make an order permitting intervention by a non-party is a matter of discretion to be determined in all the circumstances of the case. Ordinarily, however, the following matters are relevant:[4]
·whether the intervention will be of assistance to the court in resolving the proceedings;
·whether it is in the parties’ interests to allow the intervention;
·whether the intervention will occupy time unnecessarily; and
·whether allowing the intervention will add inappropriately to the costs of the proceeding.
[4] Jeavons v Chapman [2008] SASC 249 at [12].
In considering whether to make an order permitting intervention by a non‑party the court is required to determine whether there is a proper basis for the non-party interest. SCR 89 provides that the relevant “interest” need not be an interest at common law or in equity, but may be some other unprescribed interest. In the event that a non-party has been able to satisfy the court that it has an interest in the action, including the subject matter of the action, the issue of standing will not arise. If the court permits intervention it must decide the extent to which the non-party may be permitted to intervene.[5]
[5] Jeavons v Chapman [2008] SASC 249 at [13].
In Levy v The State of Victoria[6] Brennan CJ identified the three circumstances justifying a grant of intervention in the following terms:[7]
·where a non-party interest would be affected by a decision in the proceedings;
·where a non-party interest is likely to be affected by a decision in the proceedings; and
·where parties to the proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination.
[6] [1997] HCA 31, (1997) 189 CLR 579.
[7] [1997] HCA 31, (1997) 189 CLR 579 at 600-604.
A non-party who can demonstrate the necessary legal interest satisfies a pre‑condition for leave to intervene.[8] It remains a matter for the exercise of the court’s discretion as to whether intervention is granted. Whether intervention will be allowed is a matter of judicial discretion. A factor in favour of intervention is where the Court considers the intervener is likely to assist.[9]
[8] Roadshow Films Pty Ltd v IINet Ltd [No 1] [2011] HCA 54 at [2]-[6], (2011) 248 CLR 37 at 38-39.
[9] Jeavons v Chapman [2008] SASC 249 at [12].
Permission to intervene does not give the intervener any particular rights, but only allows them to be heard on such matters in the action where the court considers it may be assisted by them. What role the intervener will play in the action will depend upon the circumstances of the case and the discretion of the court. The status and roles of interveners will vary tremendously depending upon the circumstances of a particular case.[10]
[10] Westpac v Gibbons (No 4) [2012] SASC 80 at [10].
However, there is authority that intervention should be refused where there is no reason why the proposed intervener should not be joined as a defendant to the action under SCR 74.[11]
[11] Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1) (1988) 142 LSJS 121 at 124-125.
SCR 74(1)(a) permits the court, on application or its own initiative, to order that a person be joined as a party to an action if satisfied, inter alia, that the person has an interest in the subject matter of the action or in a question of law or fact involved in the action.
In Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1)[12] Lunn AJ considered the previous rules relating to intervention and joinder of parties to proceedings. He refused an application for intervention but ordered the applicant for intervention to be joined as a defendant to the action on his own motion, in circumstances where he was satisfied that the applicant qualified for leave to intervene. Lunn AJ took this approach because of the difficulty in knowing what status the applicant would have in the action as a whole if intervention was permitted. He said the power of the Court to give directions, when intervention is granted, suggested that where intervention was allowed the Court had to map out in some detail precisely what the role and the rights of the intervener were to be. He presumed that would have extended to such matters as pleadings, discovery and the calling of evidence and many other questions relating to interlocutory procedures and the conduct of the trial. He said:[13]
Where an intervention is allowed at a relatively early stage of the proceedings … there are likely to be on-going arguments at many subsequent stage of the action about what the role and rights of the intervener are to be at those stages. To my mind this should not be permitted except where it is necessary. … In the exercise of my discretions … I consider it inappropriate to allow an intervention … (and the consequent complications), where there is no sufficient prejudice or embarrassment to the other parties in having [the applicant] joined as a defendant that would warrant it being confined to intervention as distinct from joinder as an additional defendant. … [The intervention rule] should be confined to cases where the interest of the intervener is confined to a particular aspect of the matter, and does not extend to the issues generally.
[12] (1988) 142 LSJS 121.
[13] (1988) 142 LSJS 121 at 124-125.
In this matter the Commissioner seeks to intervene for a limited purpose, not to assist the Court but in order to stop the proceeding and to do so while remaining a non‑party. In my view, he should not be permitted to do so. The Commissioner’s interest in staying the action in this Court is an interest that should be pursued as a party rather than as an intervener. His sole purpose is to stay the plaintiff’s action until the hearing and determination of the charges before the Tribunal. In that regard the Commissioner submits that the declaratory relief sought by the plaintiff should be denied in the absence of a contradictor but he does not seek to undertake that role. The position taken by the Commissioner appears to be informed by a view that it is beyond his charter to undertake such a role. This appears to be founded on an implication he draws from the basis of the funding of his office and his legislative mandate. It is notable, however, that the Commissioner appears to consider that it is open to him to intervene in the proceedings in this Court but not to seek to be joined as a party. For my part I doubt that there is such a limitation to be implied but as I have not heard full argument on the matter I do not express a concluded view on the issue. However, in my view there is no impediment to the Court ordering that the Commissioner be joined as a defendant to these proceedings pursuant to SCR 74 if satisfied that it is appropriate to do so. I do not understand the Commissioner to submit otherwise.
As the Commissioner seeks to stop the plaintiff from pursuing her claim for declaratory relief, at least temporarily, he should be joined to the proceedings. The Commissioner seeks to be a moving party in the action in this Court. In bringing the application for a stay he is not pursuing an interest of his own but seeking an order that will injure or interfere with the right of the plaintiff to pursue the relief she seeks. He seeks more than a right to be heard or to assist the Court. That should occur only on the basis that the Commissioner is a party to this action. The plaintiff’s action cannot prevent the Commissioner from prosecuting the charges he has brought against her in the Tribunal. If circumstances change it is open to the Commissioner to seek to be disjoined.
I would order pursuant to SCR 74 that the Commissioner be joined to the action as a defendant.
Stay of proceedings
It is a fundamental principle that a plaintiff is entitled to have their proceedings tried in the ordinary course of the procedure and business of the court. Interference with that entitlement by a stay of proceedings is a serious matter which requires justification on proper grounds. The power to stay proceedings is an exercise of the court’s inherent jurisdiction to control its own proceedings and also is a power expressly conferred by SCR 192.

SCR 192 provides:
The Court may stay proceedings if the justice of the case so requires.
Recently I considered the exercise of the court’s power to stay proceedings in Yan v Kong.[14] I said:[15]
Supreme Court Civil Rules 2006 (SA) r 192 confers power on the Court to stay proceedings if the justice of the case so requires. The Court also has an inherent jurisdiction to stay proceedings to prevent an injustice being done. The power to stay proceedings is based on the duty of the Court to protect its own functions. In Viscariello v Tamasauskas Doyle J considered the basis of the Court’s power to grant a stay of proceedings in the following terms:
The power to order a stay of proceedings is not conditioned upon any threshold finding of prejudice or abuse of process. While not lightly exercised, the Court has a wide discretion, conditioned only upon what the justice of the case requires. The discretion requires a balancing exercise having regard to all factors relevant to doing justice between the parties.
Without intending in any way to be comprehensive or exhaustive, the circumstances in which a stay of proceedings might be warranted include where such an order is necessary to prevent an abuse of process, or to ensure the fair conduct of proceedings. A stay might also be appropriate where it is necessary to ensure the efficient or expedient use of the parties’ and court’s time and resources.
The existence of other legal proceedings, particularly where they are related or overlap in terms of the parties or issues involved, will often be a relevant consideration. The nature of those other proceedings, and their relationship with the subject proceedings, may justify a conclusion that the conduct of the subject proceedings would involve an abuse of process, would jeopardise the fair conduct of one or other set of proceedings, or would result in an inefficient use of the parties’ or the court’s time and resources. Of course, consideration must also be given to any competing considerations arising from the parties’ general entitlement to pursue their legal rights through litigation. And even if the circumstances justify a stay of the subject proceedings, the justice of the case might only require a temporary rather than permanent stay.
[Citations omitted]
[14] [2020] SASC 143.
[15] [2020] SASC 143 at [12].
The Commissioner contends that the proceedings in this Court should be stayed pending the hearing and determination of the charges before the Tribunal. The Commissioner submits that the stay should be granted in circumstances where a stay of the proceedings before the Tribunal has not been sought and if the proceedings in this Court and the Tribunal were to proceed, both this Court and the Tribunal would have to determine whether the plaintiff was entitled to charge the estate for travelling to Lithuania with the ashes pursuant to a separate contract with the deceased. The Commissioner submits that this gives rise to the risk of conflicting findings. In addition, the Commissioner submits that the stay should be granted as the proceedings before this Court have been brought by the plaintiff for a collateral purpose, namely, to cure the conduct the subject of the charges before the Tribunal.
Generally speaking issues concerning disciplinary action to be taken against practitioners should be the subject of proceedings in the Tribunal and this Court should be scrupulous not to permit practitioners to avoid the specialist tribunal established to determine questions of professional misconduct. However, circumstances can arise from time to time where this Court must determine issues which relate to matters before the Tribunal in order to determine the rights, duties and obligations of practitioners who legitimately invoke this Court’s jurisdiction. This is such a case.
In my view a proper basis for the exercise of the discretion to stay the proceedings in this Court has not been established.
While the nature of other proceedings and their relationship with the subject proceedings may justify the grant of a stay, as Doyle J recognised in Viscariello v Tamasauskas,[16] consideration must also be given to any competing considerations arising from the parties’ general entitlement to pursue their legal rights through litigation. Where a temporary stay is sought because of the existence of other related or overlapping proceedings, the discretion to grant a stay is enlivened by, inter alia, dependent or competing proceedings.
[16] [2018] SASC 111 at [25].
Dependent proceedings are where a plaintiff in one action cannot fully plead its case, or a defendant in that proceeding cannot properly defend itself, until the outcome of the other proceedings is known. In other words, one case cannot fairly and effectively proceed until the other has been determined. Competing proceedings are where the proceedings pending in one court are between the same, or related parties, and involve the same claims as the proceedings in another court.
These are not competing proceedings but they are dependent proceedings. However, that conclusion merely enlivens the Court’s discretion to stay proceedings, it does not determine it. On the contrary, in this case it is the Tribunal proceedings that cannot fairly proceed until the action in this Court has been decided.
The same parties are not involved in both proceedings. The proceedings in this Court are between the plaintiff and the estate i.e. the residual beneficiaries. While the Commissioner has been joined as a defendant to these proceedings, the residual beneficiaries of the deceased estate are not and cannot be parties to the proceedings in the Tribunal.
I do not accept the submission that the proceedings in this Court have been brought for the collateral purpose of curing the alleged misconduct that is the subject of charges before the Tribunal. It is common ground between the parties that even if the Court was to grant the relief sought by the plaintiff in these proceedings, that would not prevent the Commissioner from prosecuting the charges he has laid against the plaintiff in the Tribunal. On the other hand, it can be accepted that if the plaintiff is successful in obtaining the relief she seeks, that may influence the Tribunal in its consideration of the charges. But the plaintiff must still answer for her conduct at the relevant time in the circumstances that existed at that time. If the plaintiff is successful in obtaining the relief she seeks, it will be a matter for the Tribunal what effect, if any, the declarations made by this Court will have in determining the charges. That it is possible any declaration, if made, may inform the view of the Tribunal in determining those charges, is a reason why the plaintiff should be entitled to pursue that relief rather than being a ground justifying the exercise of the Court’s power to stay the proceedings. She is entitled to obtain from this Court an authoritative determination of her rights and liabilities in respect of the conduct that forms the basis for the charges. The first issue to be decided is whether a contract was made authorising the plaintiff to repatriate the ashes to Lithuania. That is also a relevant issue in the proceedings before the Tribunal where the Commissioner alleges the plaintiff lacked legal authority to charge for the repatriation of the ashes.
I acknowledge that there is the risk of this Court and the Tribunal arriving at conflicting findings in relation to whether a contract was formed between the plaintiff and the deceased in relation to the repatriation issue. But that risk can be addressed by the Tribunal awaiting the outcome of this Court’s determination of that question. That is a question of case management. The Commissioner being joined as a defendant to these proceedings can prosecute that issue as readily in this Court as in the Tribunal.
In the Tribunal the issue is whether the Commissioner can establish that the plaintiff engaged in professional misconduct as charged in circumstances that include an alleged lack of authority to charge for the repatriation of the ashes to Lithuania. In this Court there are a succession of issues which require, first, a determination of whether, by reason of a retainer between the plaintiff and the deceased, entered into while he was still alive and competent, the plaintiff had authority to charge for the repatriation of the ashes despite the absence of a charging clause in the will; and second, if she did not, whether the will should be rectified to record the conferral of that authority; or, third, whether the plaintiff’s charges can and should be confirmed as an appropriate subject for executor’s remuneration. The plaintiff seeks declaratory relief, rectification and/or an order for commission. None of those remedies can be granted by the Tribunal. The determination of some or all of these questions conceivably may be relevant to the determination of the disciplinary proceedings before the Tribunal.
While the ultimate issue before the Tribunal is not the ultimate issue before this Court, nonetheless resolution of the retainer issue is relevant in differing degrees to each. But it remains the case that there are other issues to be determined in the proceedings in this Court which cannot be determined in the Tribunal.
For these reasons I would dismiss the application for a stay of the within proceedings.
In these circumstances it is unnecessary to consider the plaintiff’s submission founded on considerations of her health.
Conclusion
I would dismiss the Commissioner’s application to intervene in the action in this Court. I would order that the Commissioner be joined as a defendant to the action in this Court. I would dismiss the Commissioner’s application to stay the action in this Court. I would hear the parties as to costs.