Re Manlio (No 2) - [2016] VSC 130

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROBATE LIST

S PRB 2011 17403

IN THE MATTER of the Estate of Romano Peter Manlio, deceased

IN THE MATTER of an Application for Letters of Administration ad colligendum bona

BETWEEN:

LISA NICOLE STAGLIANO (as the Administrator of the Estate of Romano Peter Manlio, deceased)	Plaintiff
v
MARIA SCERRI	Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATES OF HEARING:	24-28 August, 28 October and 6 November 2015
DATE OF JUDGMENT:	8 April 2016
CASE MAY BE CITED AS:	Re Manlio (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 130

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LEGAL PRACTITIONERS – Whether defendant’s counsel and instructing solicitors breached overarching obligations under Civil Procedure Act 2010 – Inference that counsel made submissions inconsistent with his instructions – No waiver of client legal privilege by defendant – Whether permissible for Court to inquire of its own motion whether counsel acted inconsistently with instructions – Whether permissible for Court conducting an inquiry under s 29 of the Civil Procedure Act 2010 to admit into evidence affidavits filed but not previously tendered in evidence – Referral of counsel and instructing solicitors to the Legal Services Commissioner – Administration and Probate Act 1958 ss 3 and 51; Civil Procedure Act 2010 ss 16, 18, 21, 22, 23 and 29; Legal Profession Uniform Law Application Act 2014, Schedule 1, s 296.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Antill	Leticia Rodriguez & Associates
For the Defendant	Mr R N J Young	Zeljko Stojakovic Barristers and Solicitors

HIS HONOUR:

On 21 December 2015, the Court delivered judgment in Re Manlio[1] (‘the principal judgment’) following seven days of hearings throughout August to November 2015. The primary issue which is the subject of the principal judgment is Maria Scerri’s claim for a declaration that she was the unregistered domestic partner of Romano Manlio at the time of his death in November 2011. In order for Ms Scerri to establish that she was Mr Manlio’s unregistered domestic partner, she bore the onus of proving that she was living with him at the time of his death as a couple on a genuine domestic basis, and had done so continuously for at least two years prior to November 2011.[2] If Ms Scerri had established that she was Mr Manlio’s unregistered domestic partner, she would have been entitled to a distribution from his estate in accordance with s 51(2) of the Administration and Probate Act 1958 (‘the Act’). Pursuant to leave granted during the course of the trial, Ms Scerri also claimed a declaration that Mr Manlio’s estate was indebted to her in respect of loans which she said she advanced to him but which had not been fully repaid. Ms Scerri also sought a declaration that she is the owner of various items of furniture and white goods which she purchased in January 2010 and which remain in the Delahey property purchased by Mr Manlio in late 2009, presently occupied by his…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Manlio (No 2)

Details

AGLC: Re Manlio (No 2) [2016] VSC 130
Case: [2016] VSC 130
Decision Date: 8 April 2016

CaseChat Overview and Summary

In the matter of the estate of Manlio, the court was tasked with examining whether the defendant’s counsel and their instructing solicitors had breached their overarching obligations under the Civil Procedure Act 2010. The proceedings arose from a dispute concerning the administration of the estate and the potential for misconduct by legal professionals involved in the case. The court was called upon to determine whether counsel made submissions inconsistent with their client’s instructions and whether the court could properly inquire into such conduct on its own motion. Furthermore, the court had to consider whether it was permissible to admit into evidence affidavits that had been filed but not previously tendered, as well as the implications of the defendant not waiving client legal privilege.

The central legal issues before the court involved the obligations of legal practitioners under the Civil Procedure Act 2010, specifically whether counsel and solicitors had acted inconsistently with their instructions. The court had to decide if it was appropriate to initiate an inquiry under section 29 of the Act, given the inferences drawn from the submissions made by counsel. Additionally, the court needed to resolve whether it could admit certain affidavits into evidence despite their not being previously tendered, and whether the defendant’s failure to waive client legal privilege precluded the court from examining the matter further. The court also needed to consider the appropriate course of action if it found that the overarching obligations had been breached, including potential referrals to the Legal Services Commissioner.

The court concluded that it was indeed permissible for it to inquire into whether the defendant’s counsel had acted inconsistently with their instructions, even on its own motion. It found that the inferences drawn from the submissions made by counsel warranted such an inquiry. The court also determined that it was appropriate to admit the affidavits into evidence, despite their not being previously tendered, to facilitate a comprehensive examination of the matter. The court noted that the defendant’s failure to waive client legal privilege did not bar it from making findings based on the evidence available. Ultimately, the court found that the overarching obligations had been breached and referred the defendant’s counsel and their instructing solicitors to the Legal Services Commissioner for further action.

The court issued a referral to the Legal Services Commissioner, directing that an investigation be undertaken into the conduct of the defendant’s counsel and their instructing solicitors. This referral was made under the authority of the Administration and Probate Act 1958 and the Civil Procedure Act 2010. The court’s decision underscored the importance of legal practitioners adhering to their overarching obligations and the court’s role in ensuring compliance with these duties.

Orders