Plaintiff v Defendant

1. Judith Ann Morris ('deceased') died on 14 August 2021 leaving two children, Joshua Morris born in 1973, and Olivia Morris[1] born in 1975, and a will dated 7 November 2014. By her will, the deceased divided her estate (of approximately $1.5 million) equally between Joshua and Olivia, save that Olivia also received the deceased's superannuation of approximately $401,000.
2. Norman Morris, the defendant, is the deceased's ex-husband and father of Joshua and Olivia. Norman obtained probate on 18 August 2023.
3. Joshua and Olivia each filed applications seeking further provision from the estate. Olivia's application (S ECI 2024 00653) was filed on 16 February 2024 and Joshua's (S ECI 2024 02150) was filed on 3 May 2024.
4. On 19 November 2025, Olivia's proceeding was dismissed for non-compliance with procedural orders. Separate reasons have been delivered in relation to the costs of that proceeding.
5. On 5 February 2026, Joshua's trial was vacated because on 3 February 2026 at 9:47pm, Olivia filed an application for revocation of probate ('Revocation Application'). These reasons address the defendant's and Joshua's applications for costs in consequence of that vacation. Joshua adopted the defendant's submissions and made further submissions.

1. The affidavits filed in the proceedings[2], broadly speaking, describe the following circumstances which appear to be uncontroversial. For the sake of clarity, the following background is not intended to express findings in relation to any controversial fact.
2. Olivia is an internationally accredited ophthalmologist qualified to practise in Sweden, the United Kingdom ('UK') and Australia. She graduated from the University of Melbourne with the Ophthalmology Prize before completing a PhD in the UK and being issued with a Specialist Certificate from the Swedish Medical Board. Olivia has no dependents. She owns properties in the UK and Sweden, albeit with substantial mortgages over them. She says that she has faced many financial difficulties recently, which primarily relate to the expense of maintaining international accreditation as an ophthalmologist, and the regulatory hurdles to practise.
3. Joshua, on the other hand, completed a Certificate of Basic Electronics at TAFE in about 1999, and, for a time, generated income by repairing pinball machines. He has not had regular employment since 2008 and has been receiving a disability pension since 2011. He has a wife (who is unemployed and not entitled to any benefits because of visa issues) whom he married on 1 December 2023, and daughter born 29 May 2024, both of whom depend on him. He has a history of substance abuse. In 2021, he was diagnosed with an oesophageal tumour which was treated with chemotherapy and radiotherapy. He has also been diagnosed with tongue cancer for which he was operated on in 2024, removing a substantial portion of his tongue. He has superannuation of approximately $250,000 but no property, no other assets of note, no savings, and apparently, no prospects of meaningfully productive employment.
4. The history of the proceedings, set out below, is relevant to the question of costs.

(a) On 14 August 2021, the deceased died.

(b) On 18 August 2023, Norman obtained probate.

(c) On 16 February 2024, Olivia, by her then lawyers, issued her proceeding.

(d) On 3 May 2024, Joshua issued his proceeding.

(e) On 9 December 2024, Olivia's solicitors filed a Notice of Ceasing to Act in her proceeding.

(f) On 10 December 2024, the matter came on for directions. Olivia appeared in person in addition to her former lawyer. Burgess JR noted in other matters that:

B. ... Ms Morris has foreshadowed an application to revoke the grant of probate of the will of the deceased dated 7 November 2014.

C. Both counsel for Mr J Morris and the solicitor or the defendant informed the Court that the foreshadowed application for revocation was raised by Ms Morris as early as November 2023. ... Since that time, no application has been made and Ms Morris has issued her own family provision claim in respect of the probated will.

D. Ms Morris informed the Court that she had recently engage fresh legal representation in respect of the estate. Those solicitors, however, have not yet filed a notice of solicitor acting. ...

E. Ms Morris has sought an adjournment of these proceedings to obtain legal advice and to take such steps in respect of the foreshadowed application that she is advised to make.

F. While the Court will grant that adjournment, the Court will only adjourn these proceedings to 4 February 2025. Should Ms Morris not take any step in respect of the foreshadowed application by the adjourned date, the Court will make case management directions to progress both of these TFM proceedings.[3]

(g) On 31 January 2025, Olivia's newly appointed solicitors filed a Notice of Appointment in her proceeding.

(h) On 30 April 2025, Joshua's proceeding was fixed for trial on 27 October 2025. Olivia was represented.

(i) On 4 September 2025, Olivia's solicitors filed a Notice of Ceasing to Act in her proceeding.

(j) On 19 September 2025, with the appearance of Olivia personally, timetabling orders were made. The Court noted that Olivia wanted to adjourn the trial date, but the other parties wished to proceed and the trial date was confirmed.

(k) On 24 October 2025, the Court made orders noting that Olivia had failed to comply with timetabling orders, and that she did not appear. The trial date of 27 October was vacated and further orders were made for the extension of time to comply with outstanding matters and listing the proceedings for further directions on 6 November 2025.

(l) On 6 November 2025, Olivia did not appear again. Further orders were made, listing both matters for trial on 5 February 2026 and ordering that if Olivia did not file a Notice of Trial by 13 November 2025, her proceeding will be dismissed. Olivia did not file a Notice of Trial by that date.

(m) On 19 November 2025, an order was made dismissing Olivia's proceeding.

(n) On Sunday 1 February 2026, at 9:07pm, Olivia emailed Norman's solicitors attaching a Form 46A Summons seeking to be joined as a party to Joshua's proceeding. One of the orders sought is:

That in the event joinder is granted, the Applicant be afforded a reasonable opportunity to prepare evidence and submissions having regard to the timing of this application, any listing timetable fixed by the Court, and the existence of ongoing and prospective appellate and interlocutory processes affecting the Applicant's interests.

(o) On 2 February 2026, Norman's solicitor emailed Olivia stating that, whether Olivia was joined as a party or not, Norman would be taking an active role in the proceeding, and that any adjournment application would be opposed.

(p) On 3 February 2026 at 9:47pm, Olivia filed the Revocation Application. Olivia emailed the application to Norman's solicitors at 10:11pm. Norman and Joshua agree that the effect of the Revocation Application is that Joshua's application cannot proceed and the trial must be vacated pending resolution of that issue.

1. Norman and Joshua each seek orders that Olivia personally pay their costs thrown away by reason of the vacation of the trial date on an indemnity basis. Joshua also seeks orders that Olivia pay his costs:

(a) thrown away by reason of the vacation of the trial date on 27 October 2025; and

(b) of, and incidental to, the directions hearings on 24 October 2025 and 6 November 2025.

1. Costs are sought primarily on the basis that Olivia's very recent issuing of the Revocation Application necessitated the vacation of the trial, despite having first raised the prospect at least as far back as December 2024.

1. The relevant principles were not in dispute.
2. Costs are in the discretion of the Court. Section 24(1) of the Supreme Court Act 1986 (Vic) provides:

Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

1. In relation to costs generally in Part IV applications, Norman relies on the decision in Lennan v Chao (No 2)[4] in which Moore J surveyed authorities describing the history of costs orders in Part IV proceedings and emphasised there has been a move away from any expectation that an unsuccessful party's costs in such an application will be paid out of the estate. Instead, there has been a shift towards a position where the usual rule as to costs will apply, that is, that costs follow the event. That being said, Moore J predicated his discussion by acknowledging the breadth of the discretion as to costs, and the importance of being guided by what is just.[5]
2. In relation to indemnity costs, r 63.31 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) provides that '[e]xcept as provided by these Rules or any order of the Court, including the Costs Court, costs shall be taxed on the standard basis.' The Court may depart from the standard basis and award indemnity costs in special circumstances.[6] The circumstances in which indemnity costs may be ordered are not closed but '[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.'[7]
3. As a general rule, a court will be more reluctant to make an order for indemnity costs against a litigant in person than against a represented litigant.[8] But that does not mean that indemnity costs may not be ordered against a self-represented litigant in appropriate circumstances.[9]
4. In relation to costs orders against a non-party, Norman and Joshua rely on what Lyons JA said in MC Wholesaling v Zheng:

In summary:

(a) ordinarily, costs are only awarded against a party;

(b) in the exercise of its broad discretion as to costs, the Court may order costs against a non-party: but this is out of the ordinary and the court must be satisfied that circumstances exist to justify such an order;

(c) to make an order for costs against a non-party, there must be a 'real and direct' connection between the non-party and the proceeding and also a 'material' connection between the non-party and the relevant cost;

(d) usually something more is required than playing an active role in the proceeding, such as an interest by the non-party in the outcome of the proceeding or the non‑party funding the litigation including with knowledge that the proceeding was without merit, or the non-party increasing the costs without a proper basis; and [sic]

(e) one category of case where non-party costs orders can be made was recognised by the High Court in Knight: the criteria are the party being 'insolvent' or a 'person of straw', the non-party having a role in the conduct of the proceeding, and the non-party having a sufficient interest in the proceeding;

(f) the categories of cases are not closed, and a range of factors may be relevant to the Court's discretion.[10]

1. Norman and Joshua submit that the present case is not one within the Knight v FP Special Assets Ltd category.[11]
2. I will apply the above principles.

(a) there is a real and direct connection between Olivia and the proceeding;

(b) there is a material connection between Olivia and the costs thrown away; and

(c) the circumstances warrant an indemnity costs order personally against Olivia.

1. Olivia did not make submissions as to the substance of the costs applications other than to repeatedly say that she 'did not consent' to the Court dealing with these matters until after the Revocation Application was determined. It is unclear precisely what was meant by this, but I note that it has echoes of unorthodox submissions that have been made in courts with increasing frequency over recent years.

1. For the following reasons, Olivia should pay Norman's and Joshua's costs thrown away by reason of the vacation of the trial date.
2. First, there is no doubt that the vacation of the trial date was necessitated by Olivia's Revocation Application. Joshua's application could not proceed once such an application was issued.
3. Second, costs have been wasted by reason of the late filing of the Revocation Application. If the Revocation Application had been filed earlier, costs of preparation for the trial and the briefing of counsel would likely have been avoided. The Revocation Application was filed at such a late stage that wasted costs could not be avoided. In that sense, there is a real and direct connection between Olivia and the costs thrown away.
4. Third, there is a real and direct connection between Olivia's and Joshua's proceeding. She is the only other beneficiary under the will in question, and consideration of any appropriate provision order requires consideration of her circumstances. I note also that immediately prior to Olivia issuing her Revocation Application, she was seeking to be joined as a party to Joshua's proceeding, apparently on the basis that she is a necessary party.
5. For the following reasons, Olivia should pay those costs thrown away on an indemnity basis.
6. First, costs have been thrown away by reason of the late filing of the Revocation Application. If the Application had been filed even a week earlier, those costs may have been avoided. Olivia has provided no explanation for the lateness in filing the Revocation Application, nor any explanation as to why the Application, having been foreshadowed in December 2024, was not filed earlier. When invited to make submissions as to the costs application against her, Olivia stated repeatedly that she 'does not consent to the hearing of the application.' I infer that the Revocation Application was filed at this late stage, at least in part, in order to prevent the trial from proceeding. That inference is more readily drawn in the context of Norman's solicitors' correspondence of 2 February 2026 stating that, irrespective of whether Olivia's joinder application was successful, Norman would be opposing any adjournment of the trial. That seems to have precipitated the Revocation Application.
7. Second, Olivia has a history of non-compliance with orders of the Court which have, in the past, prevented this trial and the trial of her own proceeding from running. Olivia's conduct in late filing of her Revocation Application has, irrespective of her intent, caused yet another adjournment of the trial. The adjournment could have been avoided had her Revocation Application been issued promptly, many months ago, if it was going to be made at all.
8. Third, the delays caused by Olivia's conduct and non-compliance are particularly egregious having regard to Joshua's circumstances which appear to be financially and medically dire. Olivia is aware of Joshua's situation and must be taken to know that the further delay of his proceeding would likely be a cause of considerable stress to him.
9. Fourth, while courts are less inclined to order indemnity costs against self-represented litigants, in this case, Olivia has been represented at various times since her proceeding was issued, and it must be presumed, was advised as to its conduct, including the question whether a revocation application should be made. Olivia has also demonstrated a degree of sophistication in her ability to take steps in the litigation including the issuing of the Revocation Application. I am satisfied that Olivia has sufficient knowledge of the issues concerning the Revocation Application, and has had an opportunity to obtain advice in relation to them, that an order should be made that she pay costs on an indemnity basis.
10. As noted above, orders are also sought for costs:

(a) thrown away by reason of the vacation of the trial date on 27 October 2025; and

(b) of, and incidental to, the directions hearings on 24 October 2025 and 6 November 2025.

1. On 24 October 2025, an order was made reserving costs thrown away by reason of the vacation of the trial date of 27 October 2025. That trial date was vacated because Olivia failed to comply with pre-trial directions and did not appear on 24 October. Costs were reserved and it was noted in 'Other Matters' that Joshua and Norman would seek their costs which would be heard on 6 November 2025. Olivia did not appear again on 6 November, and the argument as to costs was not heard at that time. Olivia was invited to respond to the application that she pay these costs but did not make any submissions in opposition, save to reiterate that she 'did not consent' to the question being dealt with. Having regard to the fact that it was Olivia's conduct that caused the vacation of the trial date, I consider it appropriate that she pay any costs thrown away by reason of the vacation of the trial date.
2. For similar reasons, I consider that Olivia should pay Norman's and Joshua's costs of, and incidental to, the directions hearings on 24 October 2025 and 6 November 2025. They were necessitated because of Olivia's non-compliance with orders and failure to appear. No explanation was provided.
3. Orders will be made accordingly.

[1] I will refer to the parties by their first names for convenience.

[2] Order 3 of Orders made by JR Burgess on 4 February 2025 provided that any document filed in either proceeding 'be a document filed in the other proceeding.'

[4] Lennan v Chao (No 2) [2025] VSC 513 ('Lennan v Chao').

[6] Macedon Ranges Shire Council v Thompson [2009] VSCA 209; (2009) 170 LGERA 41, 48 [13] ('Macedon Ranges v Thompson'); Colgate Palmolive v Cussons [1993] FCA 536; (1993) 118 ALR 248 , 256-257 ('Colgate v Cussons'); Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2010] FCA 359.

[7] Macedon Ranges v Thompson (n 6) 49-8 [14], citing Colgate v Cussons (n 6) 257.

[8] MacDonald v Grundy [2025] VSCA 340, [77], citing Macedon Ranges v Thompson (n 6).

[9] Macedon Ranges v Thompson (n 6) 49 [17], citing Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537.

[10] MC Wholesaling Pty Ltd v Zheng (aka 'Rocky') [2024] VSCA 248, [133] (Lyons JA) (citations omitted).

[11] Knight v FP Special Assets Ltd (1992) 174 CLR 178.