Pittorino v Meynert & Ors
[2001] WASC 245
PITTORINO -v- MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC)) & ORS [2001] WASC 245
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 245 | |
| Case No: | CIV:2012/1999 | 31 AUGUST 2001 | |
| Coram: | MASTER BREDMEYER | 7/09/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| A | |||
| PDF Version |
| Parties: | ELIZABETH GLORIA PITTORINO FERNE PETA MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC)) CATERINA PITTORINO VITTORIA PITTORINO UMBERTO PITTORINO |
Catchwords: | Legal practitioner Conflict of interest Solicitor who gives evidence should not also appear as instructing solicitor or counsel |
Legislation: | Inheritance (Family & Dependants Provision) Act 1972 |
Case References: | Secretary of State for India; ex parte Ezekeiel [1941] 2 All ER 546 Stone v Byron (1846) 4 Dowl & L 393 Yamaji & Anor v Westpac Banking Corporation & Ors (No 1) (1993) 115 ALR 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
estate of GUISEPPE PITTORINO (DEC)
and
estate of GUISEPPINA PITTORINO (DEC)
(also known as JOSEPHINE PITTORINO)
BETWEEN : ELIZABETH GLORIA PITTORINO
- Plaintiff
AND
FERNE PETA MEYNERT (as Executrix of the Wills of GUISEPPE PITTORINO (DEC) and GUISEPPINA PITTORINO (DEC))
First Defendant
CATERINA PITTORINO
Second Defendant
(Page 2)
- VITTORIA PITTORINO
Third Defendant
UMBERTO PITTORINO
Fourth Defendant
Catchwords:
Legal practitioner - Conflict of interest - Solicitor who gives evidence should not also appear as instructing solicitor or counsel
Legislation:
Inheritance (Family & Dependants Provision) Act 1972
Result:
Application allowed in part
Category: A
Representation:
Counsel:
Plaintiff : Mr M J Bateman
First Defendant : Mr L Tsaknis
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Batemans
First Defendant : Gibson Tovey Mills
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Secretary of State for India; ex parte Ezekiel [1941] 2 All ER 546
Case(s) also cited:
Stone v Byron (1846) 4 Dowl & L 393
Yamaji & Anor v Westpac Banking Corporation & Ors (No 1) (1993) 115 ALR 235
(Page 4)
1 MASTER BREDMEYER: This is an Inheritance (Family & Dependants Provision) Act 1972 action. The parties are the three daughters and son of the late Mr and Mrs Pittorino and the executrix, of both their wills, Mrs Meynert, the first defendant. After a mediation conducted by a Registrar of this Court on 25 September 2000 a settlement was reached and a settlement agreement signed. The plaintiff at that time was represented by a solicitor, Elizabeth Jane Louise O'Sullivan. The plaintiff has now terminated that solicitor and is represented by Batemans.
2 By a chamber summons dated 6 July 2001, the plaintiff seeks to set aside the agreement reached at the mediation on a number of bases: for example, that she had lost confidence in her solicitor representing her at the time and received no proper advice from her; the Deputy Registrar was wrong in law when she sought to influence the plaintiff by giving advice on the compromise; the mediation conference was conducted at excessive length and with acrimony, most of it directed at the plaintiff; the plaintiff suffered a ruptured cyst during the conference and her request for an adjournment on that basis should have been granted, etc. The orders sought in that chamber summons, in summary form, are as follows:
1. That the agreements purportedly reached at the mediation conference be set aside.
2. That the affidavit of David Stewart Rawlinson sworn 15 June 2001 in support of the application to enforce the compromise, be removed from the court record.
3. That the appointment of Mrs Meynert as executrix of the two wills be revoked and that the three daughters be appointed executors instead.
4. That Mrs Meynert be removed as trustee of a certain trust.
5. That the costs of Mrs Meynert in the administration of the estate to be taxed and paid out of the estate.
6. There be no orders as to the costs of Mrs Meynert as first defendant in these proceedings.
7. The three daughters and the son collectively be substituted as the first defendants in this case.
3 On 16 July 2001 I directed that the first two orders sought be heard by a Judge and the other orders sought be adjourned for the time being. The hearing before a Judge has been fixed for 25 and 26 September. The hearing is to be by way of affidavit, but cross-examination of the deponents will be permitted.
(Page 5)
4 The first defendant has filed a chamber summons dated 14 June 2001 to enforce the compromise reached at that mediation. It asks for a declaration that the parties have agreed terms of settlement in terms of the document set out in the schedule to the chamber summons. It, too, will be heard at the hearing before the Judge on 25 and 26 September.
5 All that is by way of background. The application presently before me is that of the plaintiff, dated 24 August, to remove the solicitors for the first defendant (that is, the executrix) from the record. The basis for that application is that the principal of that firm, Mrs Alison Frances Gibson, has sworn an affidavit dated 10 August 2001 giving her recollection of the events which took place at the mediation conference. She was present and she has deposed to matters covered by the plaintiff in her affidavit. In general terms, Mrs Gibson's evidence is to the effect that the settlement was fairly reached and no improper pressure was put on the plaintiff. I should add that a similar affidavit has also been filed by Mrs Meynert, who was also present at the mediation conference.
6 Mr Bateman, for the plaintiff, seeks the removal of Gibson Tovey Mills from the record as solicitors for the executrix. Alternatively, in argument, he asked for the removal of Mrs Gibson's affidavit from the record. He does not want that affidavit before the Judge at the hearing in September. The reason is that the affidavit deals with contentious matters and, he says, it is improper for a solicitor to be both witness and advocate in a case. In this case Mrs Gibson will be a witness if the affidavit is permitted to stand, and will be the instructing solicitor for the executrix at the hearing. Mr Tsaknis of counsel is instructed by Mrs Gibson to appear on behalf of the executrix at the hearing.
7 It is a well known proposition of law that when an advocate conducts a case he cannot give evidence as a witness in the same cause. See, for example, Secretary of State for India; ex parte Ezekiel [1941] 2 All ER 546. In that case, David Ezekiel was committed to prison by a Magistrate sitting at Bowe Street to await his return to India in accordance with the provisions of the Fugitive Offenders Act. He was imprisoned at the request of the Indian Government who sought his extradition for a criminal offence committed in India. At the hearing before the Magistrate, Mr Ezekiel was represented by senior and junior counsel. The junior counsel, a Joseph Nissim, a barrister in India, swore an affidavit in which he expressed his opinion that the charge was bad in law as it failed to disclose any offence known to the law of India. His affidavit was tendered without objection and he remained as junior barrister in that case.
(Page 6)
8 An application was made by Mr Ezekiel to a Judge for a writ of habeus corpus. The application for habeus corpus was rejected by the Court of Appeal for reasons given which had nothing much to do with Mr Nissim's affidavit. At the conclusion of the leading judgment, Humphries J, said by way of obiter dicta, that Mr Nissim's appearance as a witness and as a counsel was irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case.
9 Ipp J, in an article "Lawyers' Duties to the Court" 114 LQR 63 at 92, wrote:
"(d) The lawyer as a witness
It is undesirable for a lawyer to appear as a witness in the same case as he is instructing solicitor (and, a fortiori, counsel). Similarly, it is undesirable that, when an affidavit has been filed by a lawyer in support of an application by a client, the lawyer appear as solicitor or counsel. The reason for this is that the lawyer would be in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence.
In Australia it has been held that such a conflict would not be sufficient to justify an injunction restraining the lawyer from continuing to act for the client. This is to be contrasted with Canada, where the courts have restrained lawyers from acting in cases where they, or members of their firm, are to testify as witnesses. The test laid down is that the court must be satisfied that mischief would probably result if the lawyer who appears as the advocate will or will likely testify at the trial. It is submitted that the Canadian approach is to be preferred. After all, the improper exercise of legal rights is a foundation for the modern jurisdiction of injunction. Where the circumstances establish a material degree of impropriety, the court should be entitled to protect its integrity by granting an injunction." (Footnotes omitted.)
10 The vice of a lawyer acting as both witness and instructing solicitor (or counsel) in a case is that he may be tempted to tailor his evidence to support his client.
11 I have considered in this case whether the first defendant, the executrix, is in a special category because, as executrix, she is
(Page 7)
- independent of the main contestants. In general terms, in an inheritance case, the executrix is, and should be, a neutral party. She should simply give evidence as to the assets of the estate and her administration of the estate and then adopt a neutral stance. Very often that is done, and to save costs, the executor is excused from the contested court hearing. In this case, in the application to be heard by the Judge in September, the executrix is partisan, or slightly so, in that she has filed a chamber summons seeking for the Judge to uphold the mediation settlement. I consider the problem posed for the executrix's solicitor being both witness and instructing solicitor is not removed by the fact that the solicitor (Mrs Gibson) has sworn the affidavit, and a separate counsel (Mr Tsaknis) will appear as counsel at the hearing. The problem is not cured if Mrs Gibson gets someone else from her firm to instruct Mr Tsaknis at the hearing in September; or if Mr Tsaknis appears without any instructing solicitor. The conflict remains between the solicitor as witness and the soliciter being involved in some way in the advocacy.
12 I do not think it necessary that Gibson Tovey Mills be removed from the record. The conflict of interest can be resolved, I consider, by either Mrs Gibson's affidavit being removed from the file, or the first defendant's right to be represented by a lawyer at the hearing on 25 and 26 September, be removed. I will order one or other to happen at the election of the first defendant. If the affidavit of Mrs Gibson is to remain, then I consider that the first defendant should not be represented by a solicitor or counsel at the hearing before the Judge on 25 and 26 September.
13 The chamber summons dated 14 June 2001 which the executrix has lodged, seeking the enforcement of the settlement, will be before the court on 25 September. It is simply the reverse of the plaintiff's chamber summons to have the agreement set aside. It would be proper for the Judge if he rejected the plaintiff's application to give an order in terms of the executrix's application. If Mrs Gibson's affidavit remains and the executrix is not represented at the hearing, the court will not be disadvantaged. I understand that Mr Rawlinson, who represents the second defendant, will be arguing for the upholding of the settlement agreement.
14 I will hear the parties on costs.
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