Jeisman v Australian Executor Trustees Limited - [2012] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JEISMAN v AUSTRALIAN EXECUTOR TRUSTEES LIMITED & ANOR
[2012] SASC 142
Reasons of Judge Withers a Master of the Supreme Court
22 August 2012
PROFESSIONS AND TRADES - LAWYERS - RIGHTS AND PRIVILEGES - RIGHTS OF AUDIENCE - SOLICITORS
Representation by struck off lawyer.
Inheritance (Family Provision) Act 1972 (SA) s 6, referred to.
Galladin Pty Ltd v Aimnorth Pty Ltd & Ors (1992) 60 SASR 145; Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230; Abse v Smith [1986] 1 QB 536; Step v Collins & Ors [2007] NTSC 35; Ethics in Law: Lawyers' Responsibility and Accountability in Australia Ysaiah Ross, 5th ed, considered.

JEISMAN v AUSTRALIAN EXECUTOR TRUSTEES LIMITED & ANOR
[2012] SASC 142

JUDGE WITHERS. The plaintiff has applied to be represented in this action by Mr Roger Nunn. Mr Nunn is a legal practitioner who has been struck off the Roll. In order to determine the plaintiff’s application it is necessary to briefly consider the background to this action.
Background
This is a claim by the plaintiff under the Inheritance (Family Provision) Act 1972 (SA) for further provision arising out of the death of his father on 8 June 2009. Probate of his father’s will was granted to the first defendant on 18 October 2010. The will leaves the residuary estate in equal shares to the plaintiff and his sister, who is the second defendant. The net estate for probate purposes was $1,366,488.76.
In his original supporting affidavit – FDN 2 – the plaintiff attested that he was then 54 years of age and suffered dyslexia. He had for a very long period of time worked on the farm which is the major asset of the estate. He had lived there since 1973. He had, at his parents’ request, purchased some land adjacent to it which they had been forced to sell by their parents pursuant to a guarantee arrangement. He attested that he had constantly worked and contributed to the property. The plaintiff’s mother died in 2008. He attested that she had told him that she thought he should get more than 50 per cent of the estate to reward his contribution to the property. He attests that he became the sole carer for his father, who died in 2009. He has continued to work the land.
As to his own assets the plaintiff asserts that he has an equity of about $140,000.00 in his 20 acre property and that he owns two school buses which he uses as part of a business. The plaintiff’s health is poor. He suffered a spinal injury which required surgery in about February 2012.
These proceedings were issued with the assistance of a solicitor who initially represented the plaintiff in the action.
In her defence the second defendant asserted that both she and the plaintiff had helped on the farm. She said that she had been told by her mother that she would get a half…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SASC 142
Decision Date

CaseChat Overview and Summary

The plaintiff, Jeisman, applied to the Supreme Court of South Australia to be represented in his claim under the Inheritance (Family Provision) Act 1972 (SA) by Mr Roger Nunn, a legal practitioner who has been struck off the Roll. The dispute arose from the death of Jeisman's father, with Jeisman claiming further provision from the estate, which was left equally between him and his sister, the second defendant. The second defendant opposed the application, asserting that Mr Nunn had been found unfit to act as a legal practitioner, had caused delays in the proceedings, and lacked strategic and commercial approach to litigation.

The court had to decide whether it was appropriate to permit a struck off lawyer to represent Jeisman in the proceedings. The court considered the relevant legal principles, including the discretion to permit non-legal representation if it appears necessary or convenient in the interests of justice, as established in Galladin Pty Ltd v Aimnorth Pty Ltd & Ors. The court also considered the importance of maintaining the integrity and standards of the legal profession and the public's confidence in the administration of justice.

The court found that the interests of justice would not be served by permitting Mr Nunn to represent Jeisman. The court had already found Mr Nunn unsuitable to be a legal practitioner and struck him from the Roll, following convictions for dishonesty and a sentence of imprisonment. Allowing him to represent a litigant in a court process would undermine the integrity of the court's earlier decision and be inimical to the court's commitment to the protection of the public. Therefore, the plaintiff's application to be represented by Mr Nunn was refused.

The final orders of the court were that Jeisman's application to be represented by Mr Nunn was refused, and Jeisman was to pay the defendants' costs of and incidental to the application.

Orders