Thus, the Uniform Civil Procedure Rules make it clear (as Kirby P, in any event, observed in Credit Lyonnais v Darling ) that the Court retains the inherent power to act on its motion to make appropriate orders should it decide that costs have been incurred through unnecessary separate representation.
113 In determining whether the principles expressed in Statham v Shephard (No 2) should be applied to Gina's costs, due regard must be had to Kirby P's statement that the proper time to raise an objection to unnecessary representation is in advance of, or at, the hearing.
114 When argument on appeal in this case commenced, the Court enquired of Ms Pentelow what interests Gina had in the appeal that were different to those of the executors. Ms Pentelow replied: "There may be a difference in the tests to be applied on the appeal". Sackville AJA remarked that it was not clear that there ought to be two sets of submissions as Gina, in effect, was advancing the same submissions as the executors. His Honour observed: "[T]here may be issues of costs". Ms Pentelow did not respond and argument proceeded. The point to be made is that, when the appeal hearing commenced, the Court of its own motion raised the issue of the costs of Gina's representation. Thus, the requirement noted by Kirby P in Credit Lyonnais v Darling was met.
115 Mr Flaherty, for the executors, later submitted that Gina "should not be here". Mr Ellison made no submissions in this regard.
116 The situation bears some similarity to the circumstances in Harbin v Masterman. In that case senior counsel for the unsuccessful appellant drew the attention of the Court to the fact that the five residuary legatees, who were respondents in the appeal, appeared by four different sets of counsel. Senior counsel did not, expressly, ask for any particular costs order (see at 362-363). Lindley LJ, said, arguendo, to senior counsel for one of the respondents (at 363), "the question is at whose expense [do the different counsel for the respondents] appear". Senior counsel for the respondents then made submissions to the effect that, the appeal having failed, each was entitled to costs according to the ordinary rule. Lindley LJ (with whom A L Smith LJ and Rigby LJ agreed) however, held (at 364):
"In these cases there is always a discretion in the Court of Appeal as to the orders it ought to make with reference to the question of costs; and the Court is bound to see that its orders are not necessarily oppressive. It appears to me that in this case there really was no sensible reason for all parties appearing by separate solicitors. … I think it would be oppressive to allow more than one set of costs."
117 I do not discern any material difference between the interests of Gina in resisting the appeal and the interests of the executors. True it is that, by the orders of Young CJ in Eq, Gina is entitled to two-fifths of the residue of the estate and the other daughters one-fifth each. But that does not constitute a relevant difference in interests in the appeal. The executors, in resisting the appeal, would, in protecting their individual interests, protect, in the same way, the interests of Gina.
118 During argument on the appeal, the Court pressed Ms Pentelow to explain what interests Gina would have that were different to those of the executors.
119 Ms Pentelow first submitted that the interests of Gina differed from those of her sisters because Gina had "a claim that is different". The claim differs, however, only to the extent that Gina has a two-fifths share in the residue whereas her sisters have a one-fifth share each. There is only one pool from which their respective shares could be drawn (the residuary estate), and no particular or different order was sought against Gina's shares.
120 It was as much in the executors' interests to defend the appeal as it was in Gina's interests. That is, in the sense that, should the appeal succeed, each stood to be prejudiced to the extent that the single pool out of which their individual shares were to be paid would be reduced.
121 It is true that, had Rosa succeeded in her claim, the detriment that Gina would have suffered would have been twice as much as each of her sisters. But that does not constitute a material difference in interests for the purposes of resisting the appeal. The mere fact that Gina stood to lose more than the executors made no difference to their relevant interests as respondents.
122 There was nothing about Gina's entitlement to two shares of the estate that afforded her an argument against the appeal that differed in any way from that which the executors could advance. Furthermore, the interests that the executors and Gina had in the estate did not give rise to any difference in the degree to which they were opposed to the appeal.
123 Ms Pentelow adopted a tentative suggestion from the bench that Gina wished to make sure that any money required to be paid out of the residuary estate would not come out of her shares, whereas the executors might accept a position that any such money would come out of the entire residuary estate. I do not accept this argument. Rosa's appeal was predicated on the basis that any expense that would result from the relief that she sought, whether it be by reason of her obtaining a half interest in the Blacktown home, a Crisp order of some kind, or a legacy of $100,000 or any other amount, would be met from the residuary estate as a whole. She drew no distinction between the different interests of the other beneficiaries in the residuary estate. Should any money be payable by reason of Rosa's appeal succeeding, Gina's share would be affected proportionately. But for the reasons I have given, that does not give Gina a relevant different interest to that of the executors.
124 I would add that Gina never argued that, if any order were to be made out of the residuary estate involving a diminution of that estate, that diminution should not come out of her shares. No foundation was laid or advanced for such an argument, and the proposition appears to be untenable.
125 There was never any suggestion that Rosa, in her claim, sought to differentiate between Gina and the executors. All that Gina needed to do to ensure that she was protected from such a potential claim, was to obtain an undertaking from the executors to inform her immediately if any such claim were to be made. Such a procedure would be in accord with Woodward J's suggestion in Statham v Shephard (No 2) that parties in the position that Gina found herself should make any necessary enquiries from the plaintiffs as to the way in which their case was to be put so as to resolve the possibility of conflict of interests.
126 The small size of the estate was obvious, and the harm that the individual beneficiaries might suffer from the estate becoming liable for unnecessary legal costs was equally obvious. It was incumbent on Gina and her legal representatives to take reasonable steps to avoid the need for duplicated and unnecessary legal representation.
127 A claim under the Family Provision Act is not a vehicle for persons, with like interests to those directly involved as parties, to participate in the proceedings on the basis that they will automatically be entitled to costs out of the estate. The estate does not automatically bankroll the legal costs of every party who wishes to be heard. This needs to be borne in mind by parties who desire to participate in the proceedings but whose interests are already adequately protected..
128 It is sufficient to state that, in my view, having regard to the absence of any relevant conflict of interest between the executors and Gina, it would be oppressive were an order for costs to be made in her favour. Thus, I would make no order as to her costs, the intent being that she should pay her own costs.