Piscioneri v Whitehouse

[2024] TASSC 2

[2024] TASSC 2

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Piscioneri v Whitehouse [2024] TASSC 2
PARTIES:	PISCIONERI, Gabriella Jean
v
WHITEHOUSE, David Milne
PISCIONERI, Matthew Dominic
GATES, Genevieve Maria
FILE NO:	3044/2021
DELIVERED ON:	18 January 2024
DELIVERED AT:	Hobart
HEARING DATE:	3 October 2023
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Professions and Trades – Lawyers – Duties and liabilities – Duties to court – Generally – Honesty and candour – Whether solicitors should be restrained from acting further in litigation – Testamentary capacity of testator client in issue.

Kallinicos v Hunt [2005] NSWSC 1181, 64 NSWLR 561, referred to.

Aust Dig Professions and Trades [1138]

REPRESENTATION:

Counsel:

Plaintiff:	In Person
Defendants:	T Cox

Solicitors:

Defendants:  Murdoch Clarke

Judgment Number:	[2024] TASSC 2
Number of paragraphs:	28

Serial No 2/2024

File No 3044/2021

GABRIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE, MATTHEW

DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

REASONS FOR JUDGMENT BLOW CJ
18 January 2024

1             The plaintiff in these proceedings, Gabriella Piscioneri, has made an interlocutory application seeking orders preventing the solicitors for the defendants, Messrs Murdoch Clarke, from continuing to represent their clients.

2             This application has been made in contentious probate proceedings. The proceedings concern the estate of the plaintiff's mother, Marie Theresa Piscioneri ("the testator"). She died on 17 June 2021.

3             The testator signed a will that is dated 8 May 2019 ("the 2019 will"). It was prepared in the office of Murdoch Clarke, and drafted by a partner in that firm, David Milne Whitehouse. The plaintiff has brought an action seeking an order in the nature of a declaration that that will is invalid. The defendants in the proceedings are the executors named in that will – Mr Whitehouse, and two of the plaintiff's siblings, Matthew Dominic Piscioneri and Genevieve Maria Gates. The plaintiff contends that the 2019 will is invalid as a result of lack of testamentary capacity, undue influence, and breach of an agreement between the testator and her late husband as to mutual wills.

4             The defendants have counterclaimed, seeking to propound the 2019 will and, in the alternative, seeking to propound a will dated 6 April 2018 ("the 2018 will") and a codicil thereto dated 20 September 2018.

5             In an amended defence to counterclaim, the plaintiff has disputed the validity of the 2018 will and the codicil of 20 September 2018, pleading lack of testamentary capacity, unsoundness of mind, ignorance of the contents of the 2018 will, and undue influence.

6             The 2018 will was also drafted by Mr Whitehouse and prepared in the office of Murdoch Clarke. By that will the testator appointed two executors and trustees, namely Mr Whitehouse and the third defendant, Mrs Gates. By that will she forgave all debts owing to her by her children and left her residuary estate to her six children in equal shares. That will contained a charging clause by which she authorised her trustees to charge and be paid out of her estate "their usual professional fees for their time and effort in the administration of my estate". That will was witnessed by Mr Whitehouse and a legal secretary, Ms Ellis.

7             On 10 September 2018 the testator executed two versions of a handwritten codicil by which she left a legacy of $10,000 to each of her grandchildren. The wording of the two documents was practically identical.

8             On 30 September 2018 she executed another codicil. It was a typed document. By that document she revoked the first codicil, gave $10,000 to each of her grandchildren who survived her, and in all other respects confirmed the 2018 will. Each of the codicils was witnessed by neighbours of the testator named Michelle Baker and David Baker.

9             By the 2019 will, the testator revoked all prior wills and testamentary dispositions, appointed the defendants to be her executors and trustees, forgave all debts owing to her by her children, gave

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$10,000 to each of her grandchildren who survived her, and gave her residuary estate to her trustees upon trust for her six children in equal shares, with provision for a substitutional gift if any of those children failed to survive her. That will also included a charging clause in the same terms as the 2018 will. It was also witnessed by Michelle Baker and David Baker.

10           It is quite clear that this Court has the power to grant an injunction restraining legal practitioners from acting in a particular matter. Superior courts have that power because of their inherent jurisdiction to discipline and control legal practitioners. In Kallinicos v Hunt [2005] NSWSC 1181, 64 NSWLR 561, Brereton J reviewed the relevant cases and listed, at [76], eight propositions that are established by the relevant authorities. The first three propositions concern questions of confidentiality and loyalty during and after the subsistence of a retainer. They are not relevant to the present application. The remaining propositions were stated by his Honour as follows:

"	However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.
•	The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
•	The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
•	Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
•	The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief." (Case references omitted.)

11          Those propositions were cited with approval by Crawford J (as he then was) in Styles v O'Brien [2007] TASSC 67, 16 Tas R 268 at [24].

12           It is clear that the plaintiff contends that Murdoch Clarke should be prevented from continuing to act in this litigation "in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice".

13 Rule 32 of the Legal Profession (Solicitors' Conduct) Rules 2020 is also relevant to this application. That rule reads as follows:

"Solicitor as material witness in client's case (ASCR 27)

(1)	In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence that is material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
(2)	In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence that is material to the determination of contested issues before the court, the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice."

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14           It is inevitable that Mr Whitehouse will be a witness when this action goes to trial. However counsel for the defendants informed me that he has now retired, that he is no longer a partner in Murdoch Clarke, and that he no longer does any work for that firm. Those assertions were not disputed and I have no evidence to the contrary. There is no suggestion that he might appear as counsel at the trial of this action.

15          The plaintiff represented herself on the hearing of this application. She made lengthy oral and written submissions. Her principal contentions can be summarised as follows:

• She said that the witnesses from Murdoch Clarke who would need to give evidence at the trial would include Mr Whitehouse, Ms Ellis who witnessed the 2018 will, and two legal practitioners who have acted in relation to this litigation, Mr Flanagan and Mr Padgett.

• She contended that Murdoch Clarke had conducted the litigation inefficiently, to such an extent that the firm appeared not to have acted with honesty and candour.

• She asserted that Murdoch Clarke had withheld documents.

• She asserted that Murdoch Clarke had failed to comply with orders of Holt AsJ.

• She asserted that Mr Whitehouse had acted improperly by including a charging clause in the 2018 will and then witnessing that will.

16          It is certainly true that Murdoch Clarke have not conducted this litigation with an ideal degree of efficiency. The history of the significant aspects of the litigation can be summarised as follows:

• On 3 June 2022 Mr Whitehouse's first affidavit of testamentary scripts was sworn and filed. A copy of one version of the handwritten codicil of 10 September 2018 was annexed as "annexure K". That document was described in a list of annexures on the front page of the affidavit as "Letter to Murdoch Clarke from Marie Piscioneri dated 10/10/2018". The codicil was in the form of a letter, but it was dated 10 September 2018, not 10 October 2018. The existence of a second version of that document appears to have been unknown to Mr Whitehouse at that time.

• At a directions hearing on 5 October 2022, Holt AsJ ordered that the defendants file affidavits verifying their lists of documents within 21 days. Nothing was filed during the following 21 days.

• On 24 October 2022 the second defendant, Matthew Piscioneri, swore an affidavit verifying his list of documents. That affidavit was filed on 27 October 2022. The other defendants did not swear and file similar documents at that stage.

• The plaintiff took the point that all three defendants were required to swear and file lists of documents verified by affidavit. At a directions hearing on 10 March 2023, Holt AsJ ordered that the first and third defendants file and serve such documents within 14 days. The documents were filed a few days late, on 27 March 2023.

• On 23 March 2023 the second version of the handwritten codicil of 10 September 2018 was found in Murdoch Clarke's strongroom. Murdoch Clarke only ever located a copy of the other version of that codicil.

• On 31 March 2023 a second affidavit of testamentary scripts sworn by Mr Whitehouse was filed. In that affidavit he explained the situation regarding the two handwritten codicils.

• At a directions hearing on 19 May 2023 the plaintiff argued that the defendants had not made adequate discovery. Holt AsJ ordered that they were to file "their affidavits verifying their lists of

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documents in accordance with the requirement of the law and under the rules" within four weeks
after that day. Those affidavits were filed a few days late, on 19 June 2023.

17           For the reasons stated below, I have concluded that, although there are grounds for criticism of Mr Whitehouse and Murdoch Clarke, the evidence as to their conduct does not warrant a conclusion that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the firm be prevented from acting in this litigation, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

18           As I have said, Mr Whitehouse will undoubtedly need to give evidence at the trial. He will need to give evidence relevant to the testator's apparent state of mind, memory and understanding at and about the times of the execution of the relevant wills and codicils. He will need to give evidence relevant to the question of whether she knew and understood the contents of those documents. He may need to give evidence relevant to the plaintiff's allegations of undue influence.

19           I have no evidence as to whether Ms Ellis is currently employed by Murdoch Clarke. It seems likely that she was so employed when she witnessed the 2018 will. She may also be required to give evidence as to observations of the testator in 2018, and possibly other evidence as to facts known to her in relation to the testator.

20           However there is no apparent reason why either Mr Flanagan or Mr Padgett would be witnesses at the trial. There is no suggestion that either of them had anything to do with the testator during her lifetime. The plaintiff's submissions suggested that they had some explaining to do in relation to the shortcomings of Murdoch Clarke in the conduct of this litigation, but any such shortcomings are not relevant to the issues that will have to be decided as to the validity of the various testamentary instruments. The submissions of the plaintiff as to those two solicitors being witnesses at the trial were misconceived.

21           The facts that I have set out above relating to the defendant's affidavits of testamentary scripts and the making of discovery by the defendants warrant a conclusion that at various times and in various respects Mr Whitehouse and Murdoch Clarke were disorganised, inert, inefficient, and possibly ignorant of their obligations under the Supreme Court Rules 2000 in relation to such matters. However the established facts do not warrant any conclusions as to dishonesty or a lack of candour. In particular, there is no reason to infer that the firm withheld documents in order to disadvantage the plaintiff or in order to confer an advantage on anybody else.

22           It is true that the firm did not comply with a number of interlocutory orders made by Holt AsJ, particularly in relation to deadlines for the filing of documents. However the non-compliance on these occasions would appear to be the result of inefficiency, and failing to advert to the extent of the firm's obligations.

23           A clause in a will allowing an executor to charge for professional work done is treated as a legacy of the relevant charges: Re Thorley [1891] 2 Ch 613; Re White [1898] 2 Ch 217; Commissioner of Stamp Duties (NSW) v Pearse [1954] AC 91 at 113. Subject to certain exceptions, "where a beneficial disposition is made by a will to a person who attests the execution of the will, the disposition is void so far … as concerns that person or any person claiming under that person": Wills Act 2008, s 12(1). Therefore the prima facie position was that the witnessing of the 2018 will by Mr Whitehouse precluded him from charging for professional work done in relation to the testator's estate as an executor appointed under that will: Sacks v Gridiger (1991) 22 NSWLR 502 at 513. In such a situation a charging clause can be validated by obtaining the consent of the residuary beneficiaries or an order of this Court: Wills Act, ss 12(2)(b), 13.

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24           By witnessing a will in which he had included a charging clause, it appears that Mr Whitehouse blundered in a way that could only have disadvantaged him and his partners. The invalidity of the 2018 charging clause could only have advantaged the plaintiff. It is now inconsequential for a number of reasons. In particular, because Mr Whitehouse has retired, he will not be doing any professional work in relation to the testator's estate.

25           There certainly have been cases in which legal practitioners have been ordered to cease acting in particular litigation because of their conduct. In Black v Taylor [1993] 3 NZLR 403, a solicitor was prevented from acting further as counsel for an estate on the ground of conflict of interest based on his past receipt of confidential information from members of the family. In Kooky Garments Limited v Charlton [1994] 1 NZLR 587, a lawyer was prevented from continuing to act as counsel because the court was not receiving the assistance of counsel who was observably independent. In Grimwade v Meagher [1995] 1 VR 446, a senior barrister was restrained from representing himself and several co- defendants in a civil action as a result of a lack of objectivity and independence demonstrated in earlier related criminal proceedings.

26           The plaintiff relied on the decision of Parker J in Miles v Hughes (Unreported, Supreme Court of Western Australia, 11 November 1998, Butterworths unreported case BC 9807243). That decision concerned an action for the revocation of a grant of probate to a solicitor/executor. His firm had drawn the will. The testator's daughter contended that he lacked testamentary capacity because he was suffering from two forms of dementia and hallucinations; that the instructions for the will had been given by the testator's wife, that the will had been signed in the absence of the two purported attesting witnesses, that the testator was not present when they signed the document, and that they were told it was a power of attorney. Following the grant of probate, the testator's assets had all been transmitted to his widow under the terms of the will. She had since died, and all the relevant assets had been transmitted under the terms of her will. Parker J restrained the solicitor's firm from continuing to act in the proceedings. However he considered that the most significant factor warranting that order was that there was a substantial risk that the firm might be obliged to restore the status quo in the event of the grant of probate being revoked. That case is distinguishable because there is no such risk here, and because the specific allegations of impropriety surrounding the making of the will were far more serious than the allegations on which the plaintiff relies in this case.

27           Since there is no prospect of Mr Whitehouse appearing as counsel in this case, the question I have to consider is whether Murdoch Clarke should be restrained from continuing to act in the proceedings in the interests of the protection of the integrity of the judicial process and the due administration of justice. There is no basis for a finding that the interests of Murdoch Clarke are in conflict with the interests of their clients, the three defendants. There is no reason to infer that there is any significant risk of a lack of objectivity and candour on the part of the firm or any barrister that the firm might instruct. At most, it can be said that the firm has conducted the litigation so far with lamentable inefficiency.

28   For these reasons the plaintiff's interlocutory application filed on 8 August 2023 is dismissed.