Piscioneri v Whitehouse, Piscioneri and Gates

[2024] TASFC 4

[2024] TASFC 4

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Piscioneri v Whitehouse, Piscioneri and Gates [2024] TASFC 4
PARTIES:	PISCIONERI, Gabriella Jean
v
WHITEHOUSE. David Milne
PISCIONERI, Matthew Dominic
GATES, Genevieve Maria
FILE NO:	206/2024
JUDGMENT
APPEALED FROM:	Piscioneri v Whitehouse [2024] TASSC 2
DELIVERED ON:	15 August 2024
DELIVERED AT:	Hobart
HEARING DATE:	4 July 2024
JUDGMENT OF:	Estcourt J, Pearce J, Porter AJ
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:

Appellant:	In person
Respondent:	M Flanagan, L Hickman

Solicitors:

Appellant:	In person
Respondent:	Murdoch Clarke

Judgment Number:	[2024] TASFC 4
Number of paragraphs:	48

Serial No 4/2024

File No: 206/2024

GABARIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE,

MATTHEW DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

REASONS FOR JUDGMENT	FULL COURT
ESTCOURT J

PEARCE J
PORTER AJ

15 August 2024

Orders of the Court:

Appeal dismissed.

Serial No 4/2024 File No 206/2024

GABARIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE,

MATTHEW DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

REASONS FOR JUDGMENT	FULL COURT
ESTCOURT J 15 August 2024

1   I agree with Pearce J.

2   No 4/2024

GABRIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE,

MATTHEW DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

REASONS FOR JUDGMENT	FULL COURT
PEARCE J 15 August 2024

2             The appellant, who is plaintiff in the action, applied for an order restraining the legal firm Murdoch Clarke from continuing to act for the respondents in a contentious probate action. Blow CJ dismissed the application: Piscioneri v Whitehouse [2024] TASSC 2. This is an appeal from his Honour's order.

3   For the following reasons, I would dismiss the appeal.

The background to the application

4             The proceedings concern the estate of the appellant's mother, Marie Theresa Piscioneri who died on 17 June 2021. In the primary judge's reasons he referred to the late Mrs Piscioneri as the testator, and so I will refer to her in the same way. She had six children. She left a will dated 8 May 2019 (the 2019 will) which was prepared by the third respondent, David Whitehouse. In the will the testator appointed Mr Whitehouse and two of her children, Matthew Piscioneri and Genevieve Gates, as executors and trustees. The executors are the defendants in the action in that capacity. Mr Whitehouse, when he drafted the 2019 will, was a partner in Murdoch Clarke. The will was witnessed by a Mr and Mrs Baker. They were neighbours of the testator and had no connection to Murdoch Clarke. By the will the testator revoked all prior wills and testamentary dispositions, forgave all debts owed by her children, gave $10,000 to each of her grandchildren and left her residuary estate to her trustees upon trust for her six children in equal shares, with provision for a substitional gift if any of those children did not survive her.

5             The respondents applied to the Supreme Court of Tasmania for a grant of probate in common form of the 2019 will. On 6 December 2021 the appellant commenced an action opposing the grant. In her statement of claim she pleaded that the 2019 will was invalid as a result of lack of testamentary capacity, absence of knowledge and approval of the contents of the will, undue influence, and breach of an agreement between the testator and her late husband as to mutual wills.

6             The defendants, in a defence and counterclaim, sought to propound the 2019 will or, in the alternative, a will dated 6 April 2018 (the 2018 will) and codicils thereto dated 10 and 30 September 2018. The 2018 will was also prepared by Mr Whitehouse. He witnessed that will with a legal secretary employed by Murdoch Clarke, Lynette Ellis. On 10 September 2018 the testator executed two versions of a hand written codicil in virtually identical terms, leaving a legacy of $10,000 to each of her grandchildren. On 30 September 2018 she signed another codicil to the same effect. The codicil of 30 September 2018 was prepared by Mr Whitehouse to overcome any uncertainty about the validity of the handwritten codicils. All of the codicils were witnessed by Mr and Mrs Baker.

7             In an amended defence to counterclaim, the appellant disputed the validity of the 2018 will and codicils, pleading lack of testamentary capacity, unsoundness of mind, ignorance of the contents of the 2018 will and undue influence.

The grounds of the application

8 By interlocutory application filed 8 August 2023 the appellant applied for an order "that the
legal firm Murdoch Clarke is disqualified from acting for the defendants". The application included 17

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paragraphs of "Grounds". In those grounds, and in her oral submissions to the primary judge, the appellant advanced two principal contentions. The first was that Murdoch Clarke should be restrained from continuing to act for the respondents because Mr Whitehouse and other employees of the firm may be witnesses in the action, and because of other claimed conflicts of interest and duty. The substance of the second contention advanced by the appellant to the primary judge was that Murdoch Clarke had, after the action was commenced, breached the duties of a solicitor to the Court to conduct the litigation efficiently and effectively and with honesty and candour such that the "proper administration of justice" required that the firm should be prevented from continuing to act for the respondents.

9            Neither contention was accepted by the primary judge. His Honour's reasons are most conveniently considered when addressing the appellant's grounds of appeal.

The nature of the appeal

10           The decision whether to restrain Murdoch Clarke from acting for the respondents in the action involved the exercise of judicial discretion. The principles upon which a court will interfere with the exercise of the discretion are those referred to in House v R (1936) 55 CLR 499 at 504-505. The appellant must demonstrate that the primary judge acted on a material error of fact or law, or erred by reaching a conclusion which was unreasonable or unjust. In addition, the Supreme Court Civil Procedure Act 1932, s 42, applies. Thus, this Court is not to reverse or vary his Honour's decision unless satisfied that he declined or failed to exercise the discretion, proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or misapprehended the facts or failed to consider a material fact, or the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law.

The material before the primary judge and this Court

11           The appellant conducted the proceedings without legal representation. She was unrepresented before the primary judge and unrepresented before this Court. One of the issues underlying many of her contentions is that the primary judge failed to have regard to the "evidence" she produced at the hearing of the application. The transcript of the hearing before the primary judge discloses that no evidence was adduced before his Honour in the usual sense. However, in the course of her submissions, the appellant mentioned what she referred to as a "judge's book". Just what was in the judge's book the appellant referred to has not been made clear, but it is to be assumed that the material before the primary judge was included in the papers prepared for this appeal. The documents comprise, in the main, various documents and affidavits filed in or concerned with the principal proceedings, including a series of affidavits of testamentary scripts, affidavits verifying lists of documents, applications and correspondence with the Legal Profession Board, the Court registry and between solicitors.

12           With the agreement of the respondent and leave of the Court, the appellant relied on a further affidavit she swore on 25 June 2024 in support of her appeal. At the hearing of the appeal, following the submissions for the respondents, the appellant was given leave to file written submissions in reply. The appellant subsequently filed 23 pages of submissions comprising 81 paragraphs, accompanied by a further affidavit sworn on 23 July 2024.

The grounds of appeal

13           There are 24 grounds of appeal. They fall into three broad categories although there is some overlap. Most of the grounds concern the primary judge's rejection of the two broad contentions advanced to the primary judge. The remaining grounds assert that the primary judge denied the appellant procedural fairness and was biased.

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Witnesses and allegations of conflict of interest

14           The appellant is not, and never has been, a client of Murdoch Clarke. Thus, this is not a case in which the application to restrain a legal practitioner from acting arises from complaints of a conflict of duty or interest arising from a relationship with a client or former client, or breach of a duty of loyalty, or from the risk of disclosure or misuse of confidential communications or information. The primary judge was asked to restrain a practitioner from acting for a client in judicial proceedings as an incident of the Court’s inherent jurisdiction over its officers to discipline and control legal practitioners in aid of the administration of justice. The test to be applied was stated by Mandie J in Grimwade v Meagher

[1995] 1 VR 446:

"The objective test to be applied...is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that [the lawyer] be [...] prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of [lawyer] without good cause."

15           The test was adopted in Kallinicos v Hunt [2005] NSWSC 1181, 64 NSWLR 561, a case specifically referred to and applied by the primary judge. In Kallinicos, Brereton J, at 76, relevantly stated the following principles:

"•	…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." (Citations removed)

16          The appellant does not argue that those principles should not be applied. Her contention is that application of the principles should have led the primary judge to grant her application.

17           Grounds 2, 3, 4, 5, 7, 8 and 22 of the appeal concern the primary judge's decision about the propriety of Murdoch Clarke having a continuing role because Mr Whitehouse, Ms Ellis, Mr Flanagan or Mr Padgett may be witnesses in the action, or because of some perceived breach of duty or conflict between the interests of the firm and the executors. In my respectful opinion, not only is no error demonstrated in the exercise of the primary judge's discretion, but his Honour was correct to conclude that none of the facts relied on by the appellant were grounds for restraining Murdoch Clarke from continuing to act for the executors appointed in the 2019 will.

18           The issues for determination in the action will be whether, at the time the testator signed the 2019 will, or possibly the 2018 will and codicils, she had testamentary capacity, knew of and approved the wills, had been subject to undue influence and was bound by an agreement for mutual wills. As the primary judge correctly found, Mr Whitehouse will almost certainly be a relevant witness as to the testator's intention, capacity and knowledge. It is not pleaded that it was Mr Whitehouse who unduly

5   No 4/2024

influenced the testator. That claim is made against the testator's children and grandchildren or "some unidentified person". Any such allegation against Mr Whitehouse is limited to the assertion that he "took advantage" of his relationship with the testator to insert a charging clause in the wills. It is possible that Ms Ellis may be a witness in the action as to her observations of the testator when Ms Ellis witnessed the 2018 will, or on some other occasion.

19           Ground 2 asserts that the primary judge erred by finding that Mr Padgett and Mr Flanagan were "not material witnesses", and failed to give sufficient weight to the fact that Ms Ellis is (or was) an employee of Murdoch Clarke and may be a witness. It is possible that Mr Flanagan or Mr Padgett or both may appear as counsel at the trial. However, the primary judge's conclusion that neither was likely to be a witness in the action was correct. Neither of those two practitioners would be able to give any evidence relevant to the issues raised by the pleadings. The action concerns events which preceded the death of the testator. None of the material before the primary judge suggested that Mr Flanagan or Mr Padgett had any role at all until after the commencement of the litigation. The appellant focussed her submissions on the role that those two practitioners have played in the conduct of the action. I will return to her submissions about that when addressing other grounds of appeal. However, the primary judge was correct to conclude that any such matters are "not relevant to the issues that will have to be decided as to the validity of the various testamentary documents". In her submissions the appellant suggested that she did not admit the validity of one or more testamentary documents and hinted that one or both practitioners, by their searches in the strong room at Murdoch Clarke, may be able to give evidence relevant to that issue. She even seemed to suggest that one or other may have played some unspecified role in the concealment or production of false testamentary documents. Her contentions are not only not pleaded and unsupported by any evidence at all, but so fanciful that they may be disregarded as a material factor.

20           Ms Ellis may be a witness in the action because she witnessed the 2018 will and may be able to give some relevant evidence about the testator's capacity and understanding at the time. Even if that is true, it is no reason to conclude that the firm by which she was employed at the time, or may still be employed by, is prevented from acting for the estate.

21           The learned primary judge was informed that Mr Whitehouse was retired, was no longer a partner of Murdoch Clarke and no longer did any work for the firm. The assertions were not disputed and there was no evidence to the contrary. Ground 3 asserts that the primary judge erred in not giving sufficient weight to the potential for practitioners of the firm to be witnesses. Ground 4 asserts that the primary judge erred by finding that Murdoch Clarke did not have a conflict of interest by continuing to act for Mr Whitehouse. Ground 7 asserts that the primary judge gave too much weight to the fact that Mr Whitehouse was retired. In an appeal of this nature the contention that the primary judge placed too much weight on one relevant factor is not a proper ground of appeal. Unless it is demonstrated that the primary judge failed to take a material fact into account, the appellant must demonstrate that the primary judge reached a conclusion which was unreasonable or unjust when all material factors are taken into account. The primary judge expressly took into account the fact that Mr Whitehouse had retired and considered the significance of that fact in the exercise of his discretion. In any event, his Honour was correct to find that the fact that Mr Whitehouse would be a witness did not preclude the firm from continuing to act for the defendants. No conflict of interest or duty exists between Murdoch Clarke and the executors. In my view that is so whether Mr Whitehouse remained a partner or employee of the firm or had retired. I will return to the issue of the charging clause in the wills. Otherwise, the duty of the executors is, in the interests of the beneficiaries, to seek to propound the 2019 will, which is rational on its face and duly executed and attested in accordance with the relevant legal requirements. In the absence of evidence sufficient to incite suspicion to the contrary, it is presumed to be valid: Hookway v Hookway [2016] TASSC 28, McKay v Hearps [2021] TASSC 62. Ground 3 also asserts that the primary judge erred in not giving sufficient weight to the "firm's potential liability with respect to its profit costs". The fact that the firm was entitled to charge costs for professional services in contentious probate proceedings did not, in the circumstances of this case, give rise to any conflicting duty or interest.

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22           In her submissions, the appellant relied on the Legal Profession (Solicitors' Conduct) Rules 2020. There is nothing in any rule which supports her contentions. Rule 32 is the most relevant. It reads:

"32 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."

23           It is not suggested that Mr Whitehouse will appear as advocate at the trial. Ground 22 of the appeal asserts that the primary judge gave insufficient weight to "the desirability of avoiding a suggestion of real or apparent conflict between the duty owed by a practitioner to the Court and the obligation of the practitioner to the client or to the self-interest of the practitioner". Ground 5 asserts that the primary judge "erred in finding that the conduct of Murdoch Clarke was not an indication of their lack of objectivity and independence attributed to their loyalty to the former partner and colleague and potential liability for his negligence". Ground 8 asserts that his Honour "erred in finding that Mr Whitehouse's conduct in relation to the 2018 will was inconsequential as Mr Whitehouse himself will not be doing professional work for the firm in circumstances that the (sic) Murdoch Clarke is profiting from Mr Whitehouse's conduct." On the material before the primary judge there was no reason to conclude that it would prejudice the administration of justice if Murdoch Clarke were to continue to act, even if Mr Whitehouse remained a member of the firm. Murdoch Clarke has no conflicting duty or interest, either to their clients or the Court. The primary judge stated:

"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."

24           No error is demonstrated in that conclusion. It was a conclusion his Honour was entitled to reach in the proper exercise of his discretion and, in my view, it is correct. As to the assertion in ground 5 that there was a "potential liability for negligence" and the reference in ground 8 to "Mr Whitehouse's conduct in relation to the 2018 will", there is no reason at all to question the professional conduct of Mr Whitehouse in making the relevant testamentary instruments. The appellant does not identify or explain the nature of the conduct or the basis of the liability she claims may exist, or why any conflict of interest or duty may arise for that reason.

25           One case relied on by the appellant in support of her contentions was Miles v Hughes (Unreported, Supreme Court of Western Australia, 11 November 1998, Butterworths unreported case BC 9807243). In that case Parker J made an order restraining a firm of solicitors from continuing to act. However the decision depended strongly on the facts and circumstances which applied. It concerned an application for revocation of a grant of probate made more than 10 years earlier on the grounds of lack of testamentary capacity, in circumstances in which the defendant, who was a solicitor and a member of the firm, had been acting in the administration of the estate and charging profit costs. Parker J concluded that the determinative factor was the risk that the defendant, or the firm, would be obliged to restore the status quo in the estate and the resulting potential for a direct conflict of interest with the firm's obligations to the court. The primary judge considered Miles v Hughes but distinguished it because of important differences in the factual circumstances. The course taken by the primary judge involves no error of fact or law and no error in principle in the exercise of his discretion. In any event, I agree with the conclusion his Honour came to.

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26   I return to the question of the charging clause. Both the 2019 and the 2018 will contained a

clause in these terms:

"8 My Trustees may charge and be paid out of my estate their usual professional fees
for their time and effort in the administration of my estate."

27          The appellant's contention is that because Mr Whitehouse included such a clause in the 2019 will and the 2018 will there exists a conflict between the interests of the defendants and the personal interest of Mr Whitehouse or the personal interest of the members of the firm. The primary judge dealt with the matter in his reasons at [23]-[24] as follows:

"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.

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."

28           No error is demonstrated in his Honour's conclusion, although I would not have referred to Mr Whitehouse's actions as a "blunder". Mr Whitehouse was not a witness to the 2019 will. In respect to that will, the Wills Act 2008, s 12(1) had no application. It is not improper for a solicitor who is appointed as a trustee to include in a trust instrument a clause that entitles the solicitor to charge for professional services. The operation of such clauses was considered, for example, in Chick & Anor v Grosfeld (No. 3) [2012] NSWSC 1536. Had Mr Whitehouse been a continuing a member of the firm, I would not have regarded it as a matter of such significance as to require the exceptional step of preventing Murdoch Clarke from continuing to act. The primary judge was, however, correct to conclude that Mr Whitehouse's retirement put an end to the issue as one of any consequence. He was no longer entitled to charge his "usual professional fees" and no conflict or potential conflict between the interests of the firm and the estate could have arisen. The clause had no application to the firm, which was entitled to be paid professional fees in any event if retained to act by the executors.

Protection of the integrity of the judicial process and the due administration of justice

29           The appellant's other argument to the primary judge was that matters arising from Murdoch Clarke's conduct of the action after it was commenced justified the order sought. Again, the test to be applied 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.

30           The appellant's grounds of appeal and contentions are focussed on what she claims to be Murdoch Clarke's non-compliance with procedural steps and orders in the action. The primary judge, at [16] of his reasons, summarised the history of the litigation 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

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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 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."

31           The primary judge described Murdoch Clarke's conduct of the action as with "not an ideal degree of efficiency" and, later in his reasons, "with lamentable inefficiency". Nevertheless, his Honour concluded that the facts did not warrant any conclusion as to dishonesty or lack of candour and no reason to infer that the firm withheld documents in order to disadvantage the appellant or advantage anyone else. His Honour found that non-compliance with some of the interlocutory orders made by Holt AsJ resulted from inefficiency and failure to advert to the firms obligations. His Honour declined to find that, on that basis, the firm should be restrained from continuing to act.

32           There are multiple grounds of appeal, in various terms, attacking his Honour's conclusions. The appellant repeats her complaints about "inefficiencies" on the part of Murdoch Clarke, asserts that the primary judge should have found that the conduct was an abuse of process designed to "harass and annoy" her and "antagonise and vex and frustrate her", repeats her claim to have been disadvantaged as a result and asserts a "public interest in ensuring that limited court funds and resources are not wasted". In her further affidavits sworn 25 June 2024 and 23 July 2024 in support of her appeal, and in her further submissions "in reply", the appellant repeats her litany of claims that Murdoch Clarke's conduct of the action was designed to antagonise and frustrate her. She refers to late delivery of documents and failure to comply with interlocutory orders. She asserts "criminal conduct" concerning a document not directly related to the probate action without, in my respectful view, any rational basis. None of the material adds anything to the strength of the claims. Much of it is irrelevant. Very little of it says anything about the issues in the action. No application was made for leave to rely on the 23 July 2024 affidavit, but it matters not. Nothing included in the affidavit adds to the strength of her contentions in support of the appeal. No error in the primary judge's findings or conclusions is demonstrated. Further, in my respectful conclusion, the primary judge correctly exercised the discretion. There is no reasonable basis

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to conclude that Murdoch Clarke's conduct of the action was aimed at the type of intentional annoyance the appellant claims. Moreover, with respect to his Honour, I think his use of the term "lamentable inefficiency" when describing Murdoch Clarke's conduct of the action considerably overstates the position. Some of the matters relied on by the appellant as demonstrating non-compliance with orders were technical and pedantic, and resulted in no injustice to her. She has made many applications throughout the course of the proceedings, very few of which have facilitated the efficient conduct of the action or were focussed on the issues which will be considered at trial. Her submissions to this Court exaggerate and overstate the nature of Murdoch Clarke's conduct and, again, focus on matters other than those which will be in issue at trial. In any event, I agree with the primary judge that the circumstances relied on by the appellant did not justify the exceptional course of restraining the legal firm of the defendant's choice from continuing to act.

Allegations of breach of procedural fairness

33          The remaining grounds of appeal, grounds 16 to 21 and ground 25, assert that the primary judge, in various ways, denied the appellant procedural fairness or was biased.

34           The appellant's interlocutory application came before the learned primary judge on 29 August 2023. His Honour was expecting to hear the application on that day but neither party was ready. As a result, the application was adjourned until 1 September 2023 and it was ultimately heard on 3 October 2023. At the conclusion of the hearing the primary judge gave leave to the appellant to file further written submissions in reply to the submissions made by counsel for the respondents. Those written submissions were dated 10 October 2023 and were filed on 25 October 2023. The primary judge's decision was handed down on 18 January 2024 with written reasons.

35           The appellant's complaint that the primary judge failed to have regard to the material she sought to rely on is without merit. The primary judge's attention was drawn to the contents of what the appellant called the "judge's book" in the course of the hearing. Just because he did not specifically refer to all of it does not mean that he did not have regard to it. Much of it was, as I have already explained, irrelevant to the application his Honour was considering. His Honour specifically referred to the documents he took into account which could only have come from the material the appellant referred to.

36           There were other applications listed before the primary judge on 29 August 2023. By interlocutory application filed 15 May 2023 entitled "Application to adjourn hearing for leave to administer interrogatories and other applications and orders sought and general submissions" the appellant sought 14 different interlocutory orders in various terms. She sought orders related to leave to administer interrogatories, discovery of documents, delivery and signing of witness statements, issue of subpoenas, provision of evidence, a suppression order, preservation of assets, access to property and payment of air fares and accommodation expenses for travel to Tasmania to inspect documents. The application included 99 paragraphs of what the appellant referred to as "Grounds and submissions". One of the 14 orders sought was:

"An order for contempt given the defendants failure to comply with Order 4 of the 5th October 2022 and Order 3 of the 10th March 2023 especially given the effort and stress this has subjected the plaintiff to and that, as she is unrepresented, she is unable to get an award for costs."

37           The orders referred to in that part of the application were these. On 5 October 2022 Holt AsJ made a series of orders, one of which was that "within 21 days the defendants are to file and serve their affidavits verifying their list of documents." On 10 March 2023 Holt AsJ made a number of other orders including that "The first and third defendants are to make, file and serve their affidavits verifying their lists of documents within 14 days". In each case, the orders were one of a number of interlocutory orders. The terms and effect of the second general order for discovery is confusing because, by then, some affidavits verifying lists of documents had already been filed by the defendants.

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38   On 8 August 2023 the primary judge determined that:

"…the first thing I have to decide is whether to restrain Murdoch Clarke from
continuing to act. Everything else is going to have to wait…

… The other applications … that are before me, I adjourn sine die, that … means without date, Ms Piscioneri. When I've resolved the application to stop Murdoch Clarke from acting in the matter, I'll then do something about the listing of the other outstanding applications. Now, unless there's anything further, I think that’s all for today. Ms Piscioneri is there anything further you want to say?"

39          In response to his Honour's invitation to say something about what he proposed, the appellant replied "No, that's sounds like a sound proposal."

40           When the interlocutory application filed 8 August 2023 came before the primary judge for hearing on 3 October 2023 there was no other application before his Honour. In her grounds of appeal the appellant complains that the primary judge erred by hearing the application for disqualification before her other applications and failing to give her an opportunity to be heard about that course. She contends that his Honour denied her procedural fairness and was biased because he took "nearly three months" to decide the disqualification application.

41           All of these contentions are misguided and completely without merit. The decision to hear and determine the application to disqualify first was logical and sensible and well within his Honour's power to conduct the litigation as he thought appropriate and efficient. The appellant has not pointed to any unfairness or disadvantage which resulted. Having regard to the many other demands on his Honour's time the application was determined promptly. He prepared detailed written reasons. The appellant's assertion that she was adversely affected in some other unidentified way in pursuing her other applications because they were "time sensitive" is without foundation.

42           There is no basis at all for the contention that his Honour did not act impartially, or that a fair- minded lay observer might reasonably apprehend a lack of impartiality, with respect to any of the decisions his Honour made. The transcript reveals that his Honour conducted the hearing with patience and respect to both parties and with the utmost fairness to the appellant given that she was unrepresented. When the appellant sought leave to make further written submissions in reply, leave was granted.

43           The appellant claims procedural unfairness because she was "only given 48 hours' notice that the application would be listed and the judgment handed down." Nothing about that was unfair. The notice she was given of publication of his Honour's decision is a matter of no consequence. She also claims procedural unfairness because she was not, when the judgment was published to her, given information about her appeal rights. No one had any obligation to advise the appellant of her appeal rights. In any event, she commenced this appeal within time.

44           Ground 25, asserts denial of procedural fairness by "dismissing the application", in that it was "inequitable" to not recognise or remedy the conduct of the legal practitioners. The ground does not identify error or procedural unfairness at all. It is not procedurally unfair to make a decision which a party does not agree with.

45           Finally, she asserts procedural unfairness in relation to the part of her application seeking an order that the defendants be found in contempt. On 29 August 2023 his Honour struck out that paragraph of her application of 15 May 2023. As he was about to adjourn, he briefly addressed the part of the application which sought an order for contempt and said this:

"… in one of the interlocutory applications, there's an order sought in relation to punishment for contempt. It's order number 4, in proposed order number 4, in the application filed on the 15th of May 2023…I will not deal with a contempt application

11   No 4/2024

that is included in an interlocutory application, that’s not how contempt applications
should proceed.

So the appropriate way to deal – to bring a contempt application is to file an originating application intended to be served, and that would then be listed before a judge in court. If contempt is a matter that is heard in court by a judge in robes, not in – not heard as in chambers, the requirement that it be done that way is to be found in rule 89(k) of the Supreme Court Rules 2000.

So I – I strike out – paragraph 4 of the application filed on the 15th of May 2023."

46           The appellant complains that his Honour denied her procedural fairness by taking that course without giving her an opportunity to be heard. Her other complaint, presumably made against the Court registry staff, is that her application was accepted for filing without advice to her that it, to the extent that it sought an "order for contempt", ought to have been made by originating application. Both grounds must be rejected. The second contention may immediately be rejected. It was not for the Court staff who accepted her multifaceted application of 15 May 2023 for filing to consider part of it and give her advice about how a contempt application should be made and no injustice resulted. As to the course taken by the primary judge, there are a number of reasons why the appellant's complaints must be rejected. Though in most circumstances a judge should give a party an opportunity to be heard before making a procedural order of substance, the order made by his Honour was the type of procedural order he was entitled to make in the proper conduct of the action. His Honour drew the appellant's attention to the terms of the Supreme Court Rules, r 89(k), which requires that an order for punishment for contempt must be made by application to the Court and acted in accordance with it. The course his Honour took was consistent with the just and efficient disposition of court business. In any event, on 2 May 2024, since this appeal was lodged, his Honour set aside the order he made striking out the contempt application and listed it for hearing. His Honour took that course after the appellant drew attention to the terms of the Supreme Court Rules 2000, r 942, which permits such an application, in some circumstances, to be made by interlocutory application. As a result, the appellant has suffered no disadvantage and her application will be heard and determined. Her claim that by hearing the application that Murdoch Clarke be disqualified before her contempt application the primary judge took the proceedings out of proper order, and that she may suffer some forensic disadvantage because "you don't know what would have come out", are without merit. The primary judge was entitled to determine the appellant's various applications for interlocutory orders in the order he saw fit. I would add that, in my view, neither the application for disqualification nor the application for contempt advance the just, timely and efficient disposition of her action. No intervention by this Court is justified.

Conclusion and orders

47   In my opinion, none of the grounds of appeal are made out. I would dismiss the appeal.

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GABRIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE,

MATTHEW DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

REASONS FOR JUDGMENT	FULL COURT
PORTER AJ 15 August 2024

48   I agree with Pearce J.