Phillips v Small & Ors

[2020] HCATrans 96

[2020] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S301 of 2019

B e t w e e n -

ROBERT ELLIS PHILLIPS

Applicant

and

ANTHONY PHILLIP SMALL

First Respondent

SHARONNE ROSE PHILLIPS

Second Respondent

SHARONNE ROSE PHILLIPS AND ROBERT ELLIS PHILLIPS IN THEIR CAPACITY AS PRIVATE MANAGERS OF THE ESTATE OF MILLIE PHILLIPS

Third Respondent

MILLIE PHILLIPS (THE PROTECTED PERSON) BY HER TUTOR, MICHAELA MONEY

Fourth Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO CONNECTION TO CANBERRA

ON FRIDAY, 3 JULY 2020, AT 1.44 PM

Copyright in the High Court of Australia

____________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR L.J. ELLISON, SC, for the applicant.  (instructed by Glass Goodwin)

MR C.J. BIRCH SC:   If it please the Court, I appear with my learned friend, MR J.E. MACK, for the first respondent.  (instructed by Dukes Lawyers)

MR M.K. MEEK SC:   If it pleases the Court, I appear for the fourth respondent.  (instructed by MJM Lawyers)

BELL J:   Yes, Mr Jackson.

MR JACKSON: Your Honours, there are essentially two reasons why special leave should be granted. One is the approach taken by the Court of Appeal to the test in, predominantly, section 22(b) of the Succession Act in cases of this kind, which are lost capacity cases.  The second is where the interests of justice merit the grant of special leave and they do, if I can put it in summary form at this point, because the central terms of the will made by the Court of Appeal were the same as those in drafts already rejected by Mr Phillips and, secondly, the rejection had taken place a short time before she lost testamentary capacity.  May I deal with those matters in that order?

BELL J:   Thank you.

MR JACKSON:   Your Honours, the relevant provisions of the Succession Act can be seen at page 181 of the application book and, your Honours, as is apparent from section 18(1)(a), the Supreme Court may:

make an order authorising:

(a)a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity -

The circumstances to which these provisions apply fall, broadly speaking, into two categories:  one, not this case where the person has never had testamentary capacity - for example, brain injury as a child and so on; and the other, of which this is one, and normally speaking the more important one, where there has been testamentary capacity but it has been lost. 

Leave of the court to make such an application is required, as your Honours will see from section 19(1). But the court’s power to grant leave must not be exercised unless the court is satisfied as to the matters listed in section 22, which your Honours will see at page 182 of the application book. They include, your Honours, in particular if I could go to section 22, that:

The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

. . . 

(b)the proposed will . . . is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity –

It contains within itself really two concepts.  One is that the terms proposed are those that are reasonably likely to have been included in a will if the person had made one.  The other is that it was reasonably likely that a will in those terms would have been made by the person absent the loss of testamentary capacity.  That is an issue which assumes particular importance in cases of the present kind.  Your Honours, may I turn to the particular circumstances of this case.

BELL J:   Thank you.

MR JACKSON:   It is not of course compulsory to have a will.  If I could go to the reasons of the Court of Appeal at page 146, in paragraph 158, what your Honours will see is that the Court of Appeal may well have been correct in saying that it is sufficient and it is reasonably likely that the will would have been made in the terms contended for.

But then if one goes to the next paragraph, 159, what your Honours will see is the question was rephrased.  It was rephrased so that it became “Was it reasonably likely that you would have made a will in those terms if you knew that it was your last chance to do so?”  The reference to “last chance”, as it were, gives the “would” aspect of the provision a sense of imminence not quite found in the provisions themselves and it leads or tends to lead to the question becoming, what should you have done, rather than what would you have done?

Your Honours, as we said a moment ago, it is not of course compulsory for a person to have a will.  If one seeks to give the word “right” to it, there is a right not to have a will as well as a right to have a will.  Mrs Phillips had become incapable of making a will since 13 April 2018.  That was not in dispute; they concede it in paragraph 4 of the application, page 175. 

It was a case where, during the period of February 2017 through to that time – 13 April 2018, she had been contemplating making a will but had rejected all attempts at it and was conscious that if she died intestate her estate would go to her two children equally.  In that regard, your Honours, a draft will had been prepared for her in May 2017.  That draft – and I will come to this issue in just a moment – was in very similar terms to that propounded by the first respondent and approved by the Court of Appeal.  Yet she had disclaimed that draft on a number of occasions.

May I take your Honours to them very briefly and as briefly as I can.  Could I go to page 119, and your Honours will see in paragraph 90 the draft will – this is the third line – had been sent to her by the firm of solicitors then engaged on 22 May 2017.  If one goes down to paragraph 92, your Honours will see that on 25 June that year, she told a Ms Deigan, another solicitor, that:

she was reconsidering all aspects of her will . . . and was not happy with the draft . . . In August 2017, Mrs Phillips told Ms Deigan that she had decided not to go ahead with the will - 

If one goes to paragraph 96 of the reasons at page 121 you will see that again she said she was not going ahead with the will.  Paragraph 103, and that is page 123, on 8 October 2017 she wanted Ms Deigan to draft a will instead.  You will see at paragraph 104 at page 123, she was not happy with that earlier draft.  Your Honours will see the last few lines of that paragraph. 

You will see then, your Honours, if one goes to paragraph 106, Mrs Phillips formed the view that she had not settled on what she wanted in a will and that she, Ms Deigan, was not able to draft one for her.  You will see if one goes from there to paragraph 107 that in November 2017 Ms Deigan - and this is the first three lines of the paragraph – she was still unsure what she wanted. 

But if one goes to paragraphs 115 and 116, your Honours will see what is set out there where she sends an email to one of the solicitors earlier engaged and your Honours will see - I will not read it out of course - what is there set out.

Then, of course, there was the actual oral evidence of Ms Deigan about what took place.  Her affidavit is set out in the supplementary application book at paragraphs – could I go to page 8 of that.  Your Honours will see paragraphs 22 and 23 contain the indication, particularly around line 44 on page 8, that Mrs Phillips was not happy with the draft.  If one goes to paragraphs 25 and 26, Ms Deigan said that it was clear to her, after 8 October, that Mrs Phillips had not yet made up her mind and her evidence – that is, the evidence of Ms Deigan – was accepted by the primary judge.  Your Honours will see that acceptance referred to in paragraph 73 of his Honour’s reasons at pages 27 to 28 – page 27 about line 40.

Yet, your Honours, the will made by the court adopted, in effect, the draft will.  It was a draft will which made no provision for the present applicant, the applicant’s son, and that appeared to leave out of account findings by the trial judge of there being a move towards a reconciliation with the applicant and his family, which you will see in paragraphs 14, 59 and 72 of the primary judge’s reasons, accompanied by the successful management by the son and his sister of her complex – sorry, of Mrs Phillips’ complex and extensive financial affairs, again referred to at paragraphs 60 and 78 to 80, page 29.

Your Honours, the last aspect of which I wish to deal was this.  It is a comparison of the two wills, and by the two wills I mean the draft will that had been prepared, which she had never accepted.  You can see the draft will, your Honours, in the supplementary application book at page 43. In addition, one can see the statutory will at page 159 of the application book.

Now, your Honours, if one compares the rejected draft will with the provisions of the statutory will, it can be seen that – and, your Honours, I needless to say do this in a briefest possible form – the executors are the same – clause 2 in each case.  

The desire for burial in Israel can be seen in clause 3 of one version, clause 5 of the other.  There is the gift of paintings, objets d’art and Judaica in clause 4.1 of one and clause 7.1 of the other.  A similar thing as to remaining personal effects in clause 5 of one, clause 8 of the other; the gift of the Northfield property, clause 6 of one and clause 11.1 of the draft will; the Bunnings property, clause 7 of one and the draft will clause 12; gifts to daughter, grandchildren and sister in clauses 8, 9 and 10 of one, and 13, 14 and 15 of the other; a gift to the housekeeper, clause 6 of one, 11 of the

other; and the gift to the Sydney Jewish Museum is maintained, your Honours will see clause 12 of one and clause 17 of the other.  The rest, your Honours, are substantially machinery provisions.

Your Honours, in circumstances where a will containing those provisions was one she had declined to make on more than one occasion when she possessed testamentary capacity, how could the court, we would submit, have said on the evidence that it was a will which in terms of section 22(b) she would or would have been reasonably likely to make if she had maintained testamentary capacity.

Your Honours, for the bases I have submitted and the matters contained, as well, I might say, particularly in our reply, which your Honours will see at page 198, we submit it is an appropriate case for the grant of special leave.

BELL J:   Yes, thank you, Mr Jackson.  Mr Birch.

MR BIRCH:   Your Honours, I had a brief discussion with my learned friend, Mr Meek, who I understand supports Mr Jackson’s application.  We thought it might be appropriate that he spoke first.

BELL J:   Quite so.  Thank you, Mr Birch, yes.  Yes, Mr Meek.

MR MEEK:   Your Honours, I support what Mr Jackson has said.  The only other aspects that I would add are that in terms of public importance the distribution of a protected person’s property is a significant matter.  With an ageing population and a likelihood of increasing applications, this emphasises the public utility and importance of the matter and of course the matter has not – statutory wills have not been previously considered by the High Court.  Unless there were any questions, there is nothing further I wish to add. 

BELL J:   Thank you, Mr Meek.  Yes, Mr Birch.

MR BIRCH:   Your Honours, the application, in our submission, rests upon two misconceptions that are fundamentally misconceptions about the facts and the evidence.  The first misconception is that the evidence, properly understood, would have shown that the testator, Mrs Phillips, had not reached some concluded view about the nature of the dispositions that she wished to make.  This phrase “a concluded view” appeared several times in the written submissions, and it is said that there was insufficient evidence to show that she had a concluded view.

To that misconception we respond firstly that there was no necessity to show that she had a concluded view – what had to be shown of course was that it was reasonably likely that she would have made some particular disposition and that in reaching the view they did, the Court of Appeal had ample evidence to support its particular findings.

Related to this is a misconception that Mrs Phillips’ state of mind up to the time of loss of capacity was that she had elected, chosen or embraced – different phrases are used in different places – the making of a will and, indeed, the primary judge described her as being unfazed by the possibility of dying intestate and of having embraced the possibility of dying without a will.  Now, the Court of Appeal rejected that finding and found that it was unsupported by the evidence. 

BELL J:   Mr Birch, could I just raise with you before we go further into the facts, the issue that the applicant relies on and identifies at application book 147, paragraph 159, where it is suggested that the court in rephrasing the statutory question erred by rather than simply asking, conformably with the Act, whether there was reason to believe that the proposed will is one reasonably likely to have been made, the court considered that in the context of the anterior question of had she been aware of the imminence of the loss of capacity and that she would be intestate, would she have made this will.

MR BIRCH:   Your Honour, can I respond this way.  Firstly, when one looks at what is contained in paragraph 159, one has to look at that against the background of the determinations that had been made by the primary judge that I have just mentioned.  One of the findings that the primary judge made was that Mrs Phillips had, in effect, embraced the possibility of dying intestate and that quite fundamental to the way in which the primary judge disposed of the matter because having found that she had no particular intention to make a will at all, he also rejected the suggestion that he should approach the matter by looking at the possible dispositions that were within her contemplation and whether any of those were dispositions that could have satisfied the court to the level of reasonable likelihood. 

Now, because of the pivotal significance to the primary judge of the finding that the testator had, in effect, rejected the possibility of a will at all or was content not to have a will, the Court of Appeal addressed that head on and they concluded that that was a finding that simply was not capable of being supported. 

What there was was evidence that she had been advised that if she did not make a will that she would die intestate, advised of the consequences of that, but there was no evidence to suggest that she was content to simply allow that to happen.  So the Court of Appeal said that one ought reject that proposition.  If one rejected that proposition, one then went back to the question of what dispositions she was reasonably likely to make. 

Now, what is said in paragraph 159, that she was unlikely to have embraced this outcome if she was aware that she was shortly to lose capacity ought not to be treated as if it is some form of restating of the statutory question.  Rather, what it was was a means by which the court could test out the finding that had been made by the primary judge and it assisted them in concluding that they ought reject it. 

But when one looks back at the reasons of the court, from paragraphs 156, the essential question of reasonable likelihood is stated at the beginning of that paragraph.  The middle of the paragraph, the court states that:

The likelihood of Mrs Phillips making a will required the Court to inquire into the evidence as to the hypothetical subjective state of mind of Mrs Phillips.

Then, they ultimately come to the conclusion, after their analysis, that she would have made a number of dispositions.

Could I just go back to this question about the way in which the Act works?  There was not any controversy about the structural meaning of the legislation.  If your Honours have before you page 181 in the application book, you will see that in section 18(2):

An order under this section may authorise:

(a)the making or alteration of a will that deals with the whole or part of the property –

So the statutory will does not have to deal with everything. Then, if one turns to page 182, section 22 - this is in regard to the hearing of the application for leave - without limiting the action the court may take, the court may revise the terms of any draft of:

the proposed will, alteration or revocation –

for which the court’s approval is sought.  The effect of those two provisions is this – that an applicant may bring to court a particular draft will.  The court does not have to accept it.  The court could revise it in some fashion and, indeed, the Court of Appeal did not make an order in the form of exactly any of the drafts we propounded.  The court may be persuaded to make a will in regard to some portions of the estate but not the whole of the estate. 

Indeed, we call this in submissions “the gift by gift analysis” and what we said was that the way in which one ought to approach it is to look at possible candidate dispositions and ask whether the evidence satisfied the onus of establishing reasonable likelihood and if so then there was at least a substantial reason why the court ought make a statutory will in regard to that portion of the estate.

GAGELER J:   Mr Birch, does “reasonably likely” mean more likely than not?

MR BIRCH:   The decisions of single judges in New South Wales have said that it does not require proof on the balance of probabilities.  But the way in which the word “reasonably” qualifies the term “likelihood” suggests that there is not the necessity to establish likelihood if by that is meant a probability of greater than 50 per cent.  That was the view that was also taken by the Court of Appeal and, indeed, the single judge decisions have emphasised that a degree of flexibility is needed in the exercise of this jurisdiction or it would simply be impracticable for courts to be satisfied that they could make a statutory will.

So because of that level of flexibility, which we say is there on an appropriate reading of the Act, the Court of Appeal had ample space, if I could put it that way, to make the findings it did in light of the evidence that was before it.

Can I just say this also, your Honour, in regard to that matter, that there was nothing discussed in the first instance hearing or in the Court of Appeal about the various modalities or probabilities associated with the phrase “reasonable likelihood” and there is no suggestion that this case rose or fell on unpacking some particular formula from that statutory phrase.  The case is one purely of fact and concerned with the appropriate inferences that should have been drawn.

Your Honours, I will not go in detail to the primary judge’s findings, but he dealt with the issue of disavowal of making a will briefly in paragraphs 66 to 70 of his decision – that is at the application book page 26.  At page 27 of the application book he referred to the testator being “unfazed” by the possibility of dying intestate.  He then analysed this at the application book page 44. 

At application book page 45 – if I might just take your Honours very briefly to that – his Honour the primary judge dealt with the issue of whether there should be an analysis of possible dispositions.  He said, in paragraph 117, just below line 20:

Certainly, some consistency can be found in expressions of an intention attributed to MP to confer testamentary benefits on the plaintiff, other grandchildren, her daughter, her sister and her former housekeeper.

Now, that is a recognition that indeed there was as pattern, quite a strong pattern we contended, in candidate dispositions.  The primary judge went on to say:

However, the fact remains that MP deliberately refrained from executing any form of will, she contemplated an intestate death as a realistic outcome -

Now, that finding was emphatically rejected by the Court of Appeal, and we say appropriately so.  If I could take your Honours to the Court of Appeal decision - firstly, their review of the evidence commences at paragraph 31 in the Court of Appeal judgment and it continues for some 85 paragraphs. 

One of the difficulties of a fact‑driven case like this, in an application of this sort, is that while there are some lines of the sort that my learned friend has taken you to which suggest doubt or lack of decision there was an abundance of evidence, much of it not reviewed by the primary judge, all of it – well, most of it, surveyed by the Court of Appeal, and one had to put that all together in order to work out what was ‑ whether there was a disposition that the testator was reasonably likely to have made. 

If one goes in the reasons of the Court of Appeal to page 120 of the application book, the Court of Appeal there referred to doubts that had been expressed by Mrs Phillips about the draft and they note from other affidavit evidence, emails and the like that her concerns had related to the board composition, costs associated with drafting, identity of executors.  They said in the final sentence that she had expressed:

to Anthony that she was unsure as to who should comprise the members of the board of the proposed charity . . . uncertainty about the appropriate members of the board and the structure of the board was a primary factor in her delay in signing the Draft Will. 

Could I contrast that with some of these other candidate dispositions?  She had had, the court notes, a housekeeper for some 25‑odd years.  She had made a provision for her in her 2001 will.  There was a provision of a legacy of some $250,000 for that housekeeper in the draft will made in May 2017. 

If your Honours could turn to page 123 in the application book, at the bottom of that page the Court of Appeal refers to the notes Ms Deigan made of conversation in 8 October 2017.  So this is a number of months after the May 2017 draft had been criticised by the testator and she had refused to sign it.  There is a portion of those notes set out at page 39.  The whole of those notes - if your Honours go to the supplementary application book - commence at page 27.  What they show was, on page 27 below line 30, the desire to set up a testamentary trust for:

Fighting anti-semitism –

If one goes to page 29 just below line 20:

My housekeeper Lyn   $250k -

Now, what one had was evidence of an intention that had subsisted since 2001, provide a generous legacy for this particular housekeeper.  We say rhetorically, could there have been any serious doubt that the testator, when she made her will, intended to make a will which would have made provision for her housekeeper with that order of generosity and we say that that is unlikely.  Furthermore, if she was going to make a will, that would have been one of the gifts that she would have made. 

Now, what we proposed and what the Court of Appeal did was to engage in the exercise of going through the various possible dispositions – and there was ample evidence of who were the candidates for a gift from Mrs Phillips in the Court of Appeal’s summary of reasons judgment.  They engage in that exercise and they consider the various clauses that were proposed by us, the evidence in regard to each of them, and the reasons why they were capable of being satisfied to the onus of reasonable likelihood in regard to them. 

One can see that commencing at page 83 in the application book, commencing at paragraph 16, where there is a discussion of the desire to leave the Bunnings property to my client, a legacy to her daughter, the legacy to grandchildren, so on and so forth. 

The reasoning process we say is this.  It was not that the Court of Appeal committed the error of saying if the testator was in some fashion to be imagined as facing imminent or immediate loss of capacity, what would they do in that instant?  Rather, they were firstly rejecting the contention that there was no clear disposition that she had in mind and secondly, they then proceeded to go through the gift‑by‑gift analysis and find they were satisfied in regard to each of the relevant matters.  This was not a skewing.

If I could take your Honours to page 151 of the application book, paragraph 170, they commence by saying:

The material before the primary judge indicates that Mrs Phillips did not deliberately refrain from making any will . . . From the time of her fall in March 2017, which appears to have prompted her to direct attention to a plan for succession to her estate, up to the time of her stroke in April 2018‑

I have not taken your Honours through it in detail, but there is ample evidence to show that after she expressed discontent with the May 2017 will she kept on going over those following months, right up to April 2018, in taking appropriate steps:

the question of disposition of her estate recurred regularly, apart from the interruption occasioned by the difficulties with the nursing home business.  Even after Mrs Phillips sent emails critical of the Draft Will, she participated in arrangements to be examined by a psychiatrist . . . She continued to discuss with Anthony, for example in March 2018, the question of potential trustees and directors . . . In March 2018 ‑

This is on the eve of her loss of capacity:

Mrs Phillips asked Anthony to help her find a lawyer to do legal work -

So she was proceeding to make a will.  The appropriate questions, we say, the court had to ask were these.  Would she make a will?  Yes, she was clearly planning to make a will.  Were there dispositions, of which the court could have been reasonably satisfied, or satisfied to the level of reasonable likelihood that she would have included in that will?   We say yes, there were.

We say all of those that were included in the will ordered by the Court of Appeal and, indeed, were an appeal to be entertained in this matter it would be necessary to repeat the exercise of examining carefully each of those candidate dispositions and appropriately asking whether the evidence satisfied the onus of reasonable likelihood.  That, of course, is just a factual inquiry and the core of this application is discontent with the findings that were made in the inferences drawn from materials before the court below.  They were, we say, however, well justified.

BELL J:   Thank you, Mr Birch.  Mr Jackson.  Mr Jackson, what do you say to Mr Birch’s submission that correctly understood, and goes to paragraph 159, the Court of Appeal was, as it were, rejecting the trial judge’s view that Ms Phillips was unfazed by the prospect of intestacy?

MR JACKSON:   The difficulty with that view, your Honour, is that if that is what the Court of Appeal was doing, then the Court of Appeal was starting with an incorrect approach.  I will come to that a little more in just a moment, if I may.

BELL J:   Yes.

MR JACKSON: But could I just say this, your Honour. Our learned friends’ submissions, perhaps not surprisingly, have said it is a good thing, a worthy thing to have left something to a housekeeper. You can look to see there have been previous indications of (a) and (b) as possibilities in the past, but when one came to apply the test, the test to be applied was a rather different one and it was the statutory test that your Honours will see set out in section 22(b), and that is the test that imposes a restriction on the powers of the court:

The Court must refuse leave to make an application . . . unless the Court is satisfied that:

. . . 

(b)the proposed will . . . is, or is reasonably likely to be, one that would have been made -

if the testamentary capacity had been present.  Your Honour, that is the real test and that is what the court should have been looking at - is it something that would have been done?

Could I, in that regard, your Honours, refer to what we have said at our reply.  Your Honours will see the reply set out in pages 198 and following and your Honours will have seen that considerable reliance was placed by the defence on the material that is contained in paragraphs 156 and immediately following in the Court of Appeal’s reasons.  We have dealt with that, your Honours, in paragraph 4 and following at page 198.

If one looks at what is said in those paragraphs - I am referring particularly now to paragraph 5 of our reply - your Honours will see that subparagraphs (a) to (c) which deal with paragraphs 156 to 158 of the Court of Appeal’s reasons really simply say what the section says.  Then your Honours will see what we have said in relation to paragraph (d) and that is that one sees the error.  Your Honours, I hear the bell.  May I have just a moment to conclude by way of reply?

BELL J:   Continue, Mr Jackson, yes.

MR JACKSON:   What I was going to say was this, your Honours.  If one is looking for the position of what was the best evidence in a sense as to the state of mind of Mrs Phillips at relevant times, your Honours can see it in the evidence that was actually accepted by the primary judge.  If one looks to the supplementary application book at page 8, paragraph 25, and the bottom of the page, you will see that she, in October 1987, would still say various things have to be worked out. 

You will note particularly, if one goes to the top of page 9, that it was not just a question of the three items that my learned friend picked out.  There was also the question whether Bunnings should be given to the first respondent - you hear about which grandchildren and so on - and you will see then the conclusion expressed by a very experienced solicitor in the last three lines of paragraph 25. 

One sees also, if one goes to the oral evidence given by Ms Deigan and, in particular, your Honours, page 41 of the supplementary application book, your Honours will see commencing about line 10 on that page, page 41, again through to the top of the next page, the nature of the communications that were held with Mrs Phillips.

BELL J:   Yes.

MR JACKSON:   But, in particular, your Honour, what it does demonstrate is that to find, contrary to the specific finding of the primary judge, that he accepted Ms Deigan’s evidence that there was the testamentary intention, if I could use that expression, was something that should not be accepted. What it has done, in our submission, is, as we submitted earlier, converted the “would” of section 22(b) into “should”. Your Honours, those are our submissions.

BELL J:   The Court will adjourn briefly to consider the application.

AT 2.27 PM SHORT ADJOURNMENT

UPON RESUMING AT 2:34 PM:

BELL J:   We are not persuaded that the application gives rise to any issue of principle concerning the construction of section 22 of the Succession Act 2006.  In our opinion, there are insufficient prospects that

were special leave to appeal to be granted the appeal would be successful.  The application is dismissed with costs. 

MR JACKSON:   Your Honour, may I say something about costs?

BELL J:   I am sorry ‑ certainly, Mr Jackson.

MR JACKSON:   Your Honours, so far as the question of costs are concerned there are two issues. 

BELL J:   Yes.

MR JACKSON:   Should there be costs and, if so, by whom should they paid?

BELL J:   Yes.

MR JACKSON:   If your Honours were to look at our application, which your Honours will find at page 179, you will see in paragraphs 23 and 24 what we said prima facie about costs.  Then that is elaborated upon in our submissions in reply, page 199 at paragraphs 8, 9 and 10.

BELL J:   I see.

MR JACKSON:   Could I refer particularly to paragraph 10 in relation to the question whether the costs should be paid by the estate or by the applicant?

BELL J:   I am sorry; can you just take me again to the pages that you referred us to?

MR JACKSON:   Yes, I am sorry, your Honour.  Page 179, first of all.

BELL J:   Page 179, yes.

MR JACKSON:   Yes.  Your Honours will see that we do not advance reasons why the order for costs should not be made in favour of the first respondent in the event the application is refused.  So far then as the reply is concerned it is paragraphs 8, 9 and 10 that deal with the matter further.

BELL J:   Yes.  Mr Birch.

MR BIRCH:   Your Honours, we dealt with this very briefly at page 188 of the application book.  We said in the first instance that we say that the costs ought be paid by the applicant if it was dismissed and we said in the alternative that the costs of the first respondent ought be paid by the estate

of Mrs Phillips if your Honours were not persuaded to order them against the applicant.  I do not have any further submissions on that issue.

BELL J:   Yes, thank you.

MR MEEK:   Excuse me, your Honours.

BELL J:   Yes, Mr Meek.

MR MEEK:   For the fourth respondent - at page 195 of the application book, at about point 15, because the fourth respondent is in a position of a tutor ordinarily the position he is – the tutor would be indemnified.

BELL J:   Yes, thank you, Mr Meek.  The Court will adjourn again shortly to consider the question of costs.

AT 2.38 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.42 PM:

BELL J:   The application is dismissed.  The applicant is to pay the first respondent’s costs.  The fourth respondent’s costs should be paid from the estate on the indemnity basis. 

The Court will now adjourn until 10 am on Tuesday, 10 July in Canberra.

AT 2.43 PM THE MATTER WAS CONCLUDED