Hamond v State of New South Wales [2002] FCAFC 97, 188 ALR 659

Thors v Weekes [1989] FCA 795 92 ALR 131

Ugly Tribe Pty Ltd v Sikola [2001] VSC 189

Judgment Number: [2025] TASSC 13

GABRIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE,

MATTHEW DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

1. On 3 March 2025, the Court dismissed a claim by the plaintiff in which she sought a decree that her mother's will of 9 May 2019 is invalid. The Court rejected that claim and upheld the counterclaim of the defendants for the grant of probate in solemn form on that will. The plaintiff also made unsuccessful claims in respect of the validity of an earlier will and codicils made by the testatrix. The Court ordered that written submissions be filed and served on the question of costs. Those submissions were received by 19 March 2025. What follows are the reasons for the Court's orders in respect of costs, having regard to those submissions. The substantive judgment in this matter is Piscioneri v Whitehouse, Piscioneri and Gates [2025] TASSC 8.
2. The plaintiff's written submissions contend that costs should not follow the event because of disentitling conduct by the defendants. The basis for that submission was specious. It included a contention that litigation launched by the plaintiff was the fault of the defendants, because of the failure to explain the existence of two separate handwritten codicils to a 2018 will of the testatrix.
3. The plaintiff's other complaints about the alleged conduct of the defendants concern pre-trial delays, and the content of witness statements. Also, specious claims in the nature of personal attacks were made by the plaintiff against legal practitioners who opposed her claim.
4. In short, the plaintiff's written submissions on costs display a farrago of baseless claims to support the untenable proposition that costs should not follow the event. These claims are rejected. Costs following the event is the best possible rational outcome of the proceeding for the plaintiff. However, a question arises as to whether she should be liable for costs of the defendants on an indemnity basis. That is because of allegations by the plaintiff that the testatrix's relevant wills were affected by fraud and other baseless claims, which were rejected by the Court in the substantive judgment.
5. Counsel for the defendants contends that the plaintiff should pay the defendants' costs of and incidental to the proceedings on an indemnity basis. As Harper J of the Supreme Court of Victoria noted in Ugly Tribe Pty Ltd v Sikola [2001] VSC 189 at [7], in reliance on the judgment in Thors v Weekes [1989] FCA 795, 92 ALR 131, the making of an irrelevant allegation of fraud can result in the court ordering costs on an indemnity basis against the person making that irrelevant allegation.
6. In the substantive proceeding, the plaintiff made a baseless allegation, unsubstantiated by evidence, that the last will of the testatrix was affected by fraud.
7. The plaintiff also made baseless allegations of fraud, directed at the testatrix; see the substantive judgment at [5]. She raised other allegations without any foundation, including that the testatrix suffered from Bi-polar disorder, did not know what she was doing when she made her 2019 will, and an earlier will and codicils, and that she failed to get legal advice about not sufficiently providing for children of hers, who are "living in poverty". See the substantive judgment at [22], [24] and [27] respectively.
8. None of the plaintiff's claims in her action had any merit whatsoever. It was a proceeding which should never have been initiated. On 20 October 2021, lawyers acting for the defendants, put the plaintiff on notice that any unsupported allegations of fraud raised by her would ground an application for indemnity costs being made against her. Notwithstanding that warning, the plaintiff persisted with baseless claims in an attempt to frustrate the clear desired testamentary aims of the testatrix. In all the circumstances, it was unreasonable for the plaintiff to have subjected the defendants to the expenditure of costs; see Hamond v State of New South Wales [2002] FCAFC 97, 188 ALR 659 at [20] per Gray J, with whom Carr and Goldberg JJ agreed. As the defendants' solicitors stated in their 20 October 2021 letter:

"Any of your foreshadowed litigation is only going to deplete the Estate's finances and any entitlement you have under the 2009 will is going to be reduced to a greater extent than if you permit the 2009 will to be administered in accordance with its terms."

1. An order for indemnity costs against the plaintiff is justified because of the special and unusual feature of the plaintiff's action being that she raised a series of totally unmeritorious claims (including allegations of fraud) against the validity of the 2019 will, the 2018 will and its codicils, which were without any prospect of success, and which were wholly unsupported by any evidence of any probative value, or any evidence at all.
2. The plaintiff may have erroneously believed that she could run down the testatrix's estate, burdening it with legal costs and not suffer any financial consequences. If she so believed, she was wrong. This is exactly the sort of case in which it is appropriate not to make an order that all legal costs come out of the testatrix's estate, or even that costs be paid on the usual basis. On the contrary, the plaintiff must be held responsible for her baseless allegations of fraud and her other unsubstantiated allegations about the conduct of the defendants and the testatrix. In the circumstances, it is appropriate that she pay the price for her egregious conduct in pursuing a totally unmeritorious course of action, and opposing the valid matters raised by the counterclaim.
3. In all the circumstances, the Court will order as follows:

(1) The plaintiff pay the defendants' costs of and incidental to her action and to the defendants' counterclaim, to be taxed on an indemnity basis.

(2) The plaintiff is not entitled to receive distribution of her share of the residuary estate of the testatrix from the defendants, as executors of the estate, until such time as she pays into the estate the costs that have been ordered to be paid by her in accordance with order (1).

(3) In the event that the plaintiff does not pay the costs ordered to be paid by her in accordance with order (1), the defendants are at liberty to appropriate the amount of those costs, as taxed or agreed, from the share of the residuary estate to which the plaintiff is entitled, and then to distribute the balance of that share, if any, to her.

(4) The plaintiff is to otherwise bear her own costs of and incidental to her action and the defendants' counterclaim.