Plaintiff v MARIA SCERRI

1 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 son Anthony and Anthony's mother, Lisa Stagliano.

2 In the principal judgment I rejected each of Ms Scerri's claims. I observed that aspects of the way in which Ms Scerri's counsel, Mr R N J Young, conducted the case on her behalf raised significant questions as to whether he and/or his instructing solicitors had complied with their overarching obligations under the Civil Procedure Act 2010 ('CPA').

3 I also concluded that Ms Stagliano's conduct raised questions as to whether she had breached her overarching obligations under the CPA.

4 This judgment deals with the question of costs. In particular, it deals with the question of whether, by reason of any breaches of the CPA, costs orders should be made against Ms Scerri's counsel, Mr Young, her solicitors, Zeljko Stojakovic Barristers and Solicitors ('Zeljko Stojakovic'), and/or Ms Stagliano.

5 An allegation that a practitioner has breached the CPA is a very serious matter requiring clear and cogent proof.[3] I am not satisfied to the requisite standard that either Mr Young or his instructing solicitors breached any obligations imposed upon them by the CPA. However, I have referred the conduct of both Mr Young and his instructing solicitors in relation to the current proceedings to the Legal Services Commissioner ('the Commissioner'). I have concluded that Ms Stagliano did breach the overarching obligation under s 21 of the CPA. However, I have refrained from making any orders under s 29 of the CPA because of the adverse effect such an order would have upon her son, Anthony.

The background to the Court acting of its own motion pursuant to s 29(2) of the CPA

6 In order for Ms Scerri to establish that she was the unregistered domestic partner of Mr Manlio when he died in November 2011, she had to establish that:

(a) in November 2011 she was living with him as a couple on a genuine domestic basis; and

(b) she had done so continuously for a period of at least two years prior to November 2011.

7 These mandatory criteria arise from the definition of 'unregistered domestic partner' in s 3(1) of the Act. Having regard to these criteria, evidence of Ms Scerri's living arrangements with Mr Manlio both at the time of and prior to his death was critical to her prospects of success. It is therefore not surprising that a great deal of evidence both in support of, and in opposition to, Ms Scerri's claim was directed to the living arrangements involving Ms Scerri and Mr Manlio between November 2009 and November 2011. Five witnesses gave evidence in support of Ms Scerri's claim: Ms Scerri, her daughter Rachael and three of her friends, Roseann Briffa, Rita Borelli and Peter Mifsud. Eight witnesses gave evidence in opposition to the claim: Ms Stagliano, Anthony Manlio, Rosemary Borg, Matthew McNair, Brian Coates, Melanie Marchesi and Catherine Vella.

8 Prior to the trial commencing, orders had been made by McMillan J that the parties file affidavits. Save for Ms Vella, each of the witnesses referred to above filed an affidavit in advance of the hearing. It was plain from reading the affidavits that the accounts contained therein were utterly irreconcilable. As issues of credit loomed very large in the case, the Court directed that all evidence would be viva voce. None of the affidavits prepared prior to the hearing were tendered in evidence, save for an affidavit of Dr Albert Leung sworn 14 August 2015. Nevertheless, as recorded in paragraph [76] of the principal judgment, by reason of the affidavits which were filed, 'the parties were placed squarely on notice of the evidence which would be led during the course of the proceedings'. In written submissions filed by Mr Young on 11 February 2016, the Court's finding at paragraph [76] is challenged. In further written submissions from Mr Young filed on 29 February 2016, he contends that because the affidavits were not admitted into evidence no weight should be placed upon them at all. I shall address both of these matters later in this judgment.

9 In the principal judgment, I summarised Mr Young's opening as follows:

(i) Ms Scerri had slept at the Delahey property on the night of 25 November 2011, went to work on the morning of 26 November and at some stage soon thereafter was advised that Mr Manlio had died;

(ii) For two years prior to 26 November 2011, Ms Scerri was sleeping at the Delahey property seven nights a week;

(iii) Throughout the two year period, they lived as a married couple;

(iv) A property owned by Ms Scerri in Burnside was, for all intents and purposes, vacant between November 2009 and November 2011. The house was furnished but save for an occasional visit, it was not lived in;

(v) Mr Manlio and Ms Scerri were engaged to be married in August 2010. Mr Manlio gave Ms Scerri an engagement ring but no date had been set for the marriage. Ms Scerri had left the ring in the Delahey house on the morning of 26 November 2011 because she did not want to wear it while she was preparing food at a café where she worked; and

(vi) Ms Scerri and her four children moved out of the Delahey house immediately after Mr Manlio's death.[4]

10 At paragraph [88] of the principal judgment, I raised the question of whether Mr Young had contravened s 18(d) of the CPA by making an opening submission which did not have a proper factual basis as it was inconsistent with Ms Scerri's own evidence. In particular, Ms Scerri gave evidence, contrary to Mr Young's opening submission, that:

• She had not slept at the Delahey property the night before Mr Manlio died;[5]
• She was not sleeping at the Delahey property seven nights a week throughout 2011;[6]
• She moved back to her Burnside house late in 2011 when she opened a café and Mr Manlio was spending a lot of time living at that house;[7]
• The Burnside house was not, for all intents and purposes, vacant between November 2009 and November 2011;[8] and
• Ms Scerri and her four children were not living in the Delahey house immediately prior to Mr Manlio's death.[9]

11 At paragraph [87] of the principal judgment, I referred to the disparity between Mr Young's opening and closing submissions:

I noted at the outset of this judgment the disconnect between Mr Young's opening and closing submissions. The case was opened on the basis that for the months prior to Mr Manlio's death, he and Ms Scerri were continually cohabiting at the Delahey property with three of Ms Scerri's children. The picture presented by way of opening was of a happy and settled domestic arrangement. This picture quickly evaporated during Ms Scerri's evidence-in-chief. By the time of Mr Young's closing submission, he contended that for the six month period prior to Mr Manlio's death, Ms Scerri and Mr Manlio did not live together at Delahey at all. This submission was contrary to the evidence of Ms Scerri and her daughter, Rachel. As such, it was tantamount to an invitation to the Court to reject their evidence on a matter critical to the outcome of the proceedings.

12 The disparity between Mr Young's closing submission and the evidence given by Ms Scerri and her daughter, Rachael, raised a serious question as to whether Mr Young's closing submissions were inconsistent with his instructions. At paragraph [97](d) of the principal judgment, I directed that by 4.00 pm on 12 February 2016 the solicitor on the record for Ms Scerri and Mr Young were to file written submissions not exceeding 15 pages in length, together with any affidavit upon which they wished to rely, as to:

(i) Whether any order should be made that either or both of them are not entitled to render accounts to the defendant, or are to refund moneys paid in respect of accounts which have been rendered.

13 Mr Young filed written submissions on 11 February 2016. At paragraph [31] of those submissions he stated:

I have done my best to address the issues raised by the court in its judgment. If I have not addressed any issues, I reserve my right to make further submissions. I note that the court has not particularised what either:

(a) I have done or not done;

(b) What my instructing solicitors have done or not done.

It is therefore difficult because the court's complaints have not been particularised to address the complaints of the court.

14 In addition to the submissions filed by Mr Young, his instructing solicitors filed written submissions on 12 February 2016 together with an affidavit of Mr Thanh Le. Written submissions were also filed on behalf of Ms Stagliano on 12 February 2016 together with an affidavit of Ms Stagliano. In addition, an affidavit was filed by Ms Stagliano's solicitor, Ms Rodriguez, dated 12 February 2016.

15 Following receipt of the submissions and affidavits set out above, on 22 February 2016 the Court sent an email to the parties in the following terms (emphasis in original):

Dear practitioners

We refer to the email below.

The Honourable Justice McDonald has considered the written submissions provided to the Court. His Honour does not presently intend to list the matter for further hearing.

His Honour invites Mr Russell N J Young to file further submissions addressing whether Mr Young breached the paramount duty in s 16 and/or the overarching obligations in ss 18, 19, 23 and/or 24 of the Civil Procedure Act 2010 (Vic) in respect of:

1. The opening submissions of Mr Young, especially having regard to the following:
   1. At paragraph [59] of Ms Scerri's affidavit in reply dated 30 April 2015, she relevantly deposed, "I am aware that Jimmy was staying at the Delahey property. However, at the time the deceased was living at my house because it was closer to my café/business."
   2. Mr Young's opening submission was inconsistent with Ms Scerri's affidavit dated 30 April 2015 in so far as he submitted that:
      1. Ms Scerri slept at the Delahey property on the night before Mr Manlio died;
      2. Ms Scerri was living in the Delahey property and sleeping there 7 nights per week prior to Mr Manlio's death; and
      3. Ms Scerri's property at Burnside was for all intents and purposes vacant between November 2009 and November 2011.
2. The closing submissions of Mr Young, and whether it is open for the Court to infer that he made submissions that were inconsistent with his instructions, especially having regard to the following:
   1. Mr Young's submission that Ms Scerri was not living in the same house as Mr Manlio in the 6 months prior to his death, which is inconsistent with:
      1. the viva voce evidence of Ms Maria Scerri and Ms Rachael Scerri;
      2. the affidavits of Ms Maria Scerri, including the affidavit dated 30 April 2015 at paragraphs [7] and/or [59];
      3. the affidavit of Ms Rachael Scerri dated 30 April 2015 at paragraphs [8]-[9]; and
      4. Mr Young's cross-examination of the plaintiff's witnesses.
   2. The written submission of Mr Young dated 11 February 2016 states at paragraph 21:

Insofar as the court is critical of me making a final address based on the evidence presented to the court rather than on what I said in an opening address, this is unwarranted. It is the obligation of the court to make up its mind on the evidence presented and it would be ridiculous for counsel to argue against obviously what is the evidence before the court. It is submitted it would be remiss of counsel to argue the case which is not supported by the evidence. ...

The further written submissions of Mr Young are not to exceed 15 pages in length and are to be provided to the Court by 4.00 pm on Wednesday, 2 March 2016.

...

16 Before addressing the submissions filed by the parties, it is necessary to make some observations regarding the application of the CPA in the present proceedings. Section 29(1) of the CPA provides that if a court is satisfied that, on the balance of probabilities, a person has contravened an overarching obligation, the court may make any order it considers appropriate in the interests of justice. Section 29(2)(b) of the CPA provides that an order may be made on the court's own motion.

17 The Court has acted on its own motion to conduct an inquiry into whether there has been a breach of obligations arising under the CPA. In Yara Australia Pty Ltd v Oswal,[10] the Court of Appeal stated in reference to the CPA:

The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.

Yet as we have observed, sanctions imposed for a breach of any overarching provisions have been a rarity at first instance. When no party invites the court to determine whether there has been a breach of the Act, there may a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to a potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities. ...[11]

18 Ms Scerri's primary claim for a distribution from Mr Manlio's estate was worth approximately $100,000. Prior to the commencement of the proceedings, the parties had filed 21 affidavits which provided totally irreconcilable accounts of the living arrangements between Mr Manlio and Ms Scerri. Thus, it was highly likely from the outset of the proceeding that the trial would run for a minimum of five days. Affidavits filed by the solicitors for Ms Scerri and Ms Stagliano on 12 February 2016 disclose that the plaintiff has incurred costs of $136,041.38 (including counsel's fees of $72,600) and the defendant has incurred costs of $87,728 (including counsel's fees of $47,080). Any practitioner representing a client in proceedings in the Supreme Court of Victoria where the legal costs are disproportionate to the quantum of the claim should expect their conduct to come under very close scrutiny. The parties and their legal representatives will be held to account.

19 Further, in the present proceedings there were additional considerations relevant to the potential application of the CPA. First, the evidence indicates that Ms Scerri is a person of very limited financial means. Her sole source of income is a single parent's pension.[12] She has a significant mortgage over her Burnside property as a consequence of loans which she advanced to Mr Manlio's company which have not been fully repaid.[13] Second, as found by the Court at paragraph [77] of the principal judgment, Ms Scerri is a person of limited intellectual capacity and literacy skills. When asked to read part of an affidavit which she had sworn prior to the commencement of the proceedings, Ms Scerri was unable to do so.[14] Ms Scerri was taken out of primary school at 11 years of age to look after her sisters. She never commenced high school.

20 In his written submissions of 11 February 2016, Mr Young has taken issue with the Court's finding that Ms Scerri was a person of limited intellectual ability. Mr Young submitted at paragraph [26]:

It is conceded that the defendant had problems with her memory and literacy skills, but it is not conceded that she had limited intelligence. When the words 'limited intelligence' are used, it is to imply that she had severe intellectual problems ... There is no reason to believe that the defendant did not have capacity to conduct litigation. If the court had thought that she did not have capacity to conduct litigation, the court would have and should have appointed a litigation guardian pursuant to Supreme Court Rules Order 15 and the court did not appoint a litigation guardian. It is my submission that the fact the court did not of its own volition appoint a litigation guardian, is evidence that she did have capacity to conduct litigation. ...

21 There is no finding in the principal judgment that Ms Scerri had "severe intellectual problems". Nor was there any suggestion during the trial that Ms Scerri did not have capacity to conduct the litigation so as to justify the appointment of a litigation guardian. In contrast to his argumentative written submissions, Mr Young agreed during the trial that Ms Scerri was "simple"[15] and "unsophisticated".[16] After the Court had raised with Mr Young its concerns regarding Ms Scerri's literacy skills the following exchange took place:

MR YOUNG: But there are some - there is - there is - following on to that Your Honour, the issue is being raised, there's sometimes - it's hard going sometimes to quite explain

HIS HONOUR: Yes.

MR YOUNG: - - - what you mean - - -

HIS HONOUR: No, I - - -

MR YOUNG: - - - but not - but not a literacy problem.

HIS HONOUR: No, it's - it's an intelligence - - -

MR YOUNG: Yes, well - - -

HIS HONOUR: - - - issue, I dare say.

MR YOUNG: Yes, that's probably closer to the mark, Your Honour. And Your Honour, my solicitor and I might be wrong, but - - -

HIS HONOUR: No I'll accept - I just noticed - I observed the witness closely in the witness box, and I noticed when on a number of occasions she was asked to go to documents, she appeared to be struggling. Now as you say, that might not be a literacy issue, it might be other issues.[17]

22 When the issue of Ms Scerri's limited intellect was raised with Mr Young, he did not seek to argue to the contrary. His written submission misses the point that the personal circumstances of a litigant, including literacy and intellectual ability, are relevant to an assessment of whether legal representatives have discharged their obligations under the CPA.

23 It is apparent from Mr Young's regrettably tendentious written submissions that he feels aggrieved to be the subject of the present inquiry. In initiating and undertaking the inquiry I have been mindful of the seriousness of an allegation that a practitioner has breached an obligation arising under the CPA. I have taken into account the repercussions of a finding of breach and any order pursuant to s 29 of the CPA. I accept that the principles in Briginshaw are engaged whenever the Court considers the question of whether a practitioner has breached an overarching obligation.

24 I have set out earlier in this judgment the contents of an email which was sent to the practitioners on 22 February 2016, which invited Mr Young to file further submissions addressing whether he had breached the paramount duty in s 16 and/or the overarching obligations in ss 18, 19, 23 and/or 24 of the CPA.

25 Section 16 of the CPA provides that each person subject to the overarching obligations has a paramount duty to the Court to further the administration of justice in relation to any civil proceeding in which that person is involved. In any contested proceeding, counsel's opening submissions are of critical importance in identifying the issues in dispute. The submission sets the parameters for the evidence to be led and the factual and legal issues which fall for determination. The administration of justice is undermined if counsel's opening submission does not clearly identify the legal and factual questions which fall for determination.

26 I have set out above the basis upon which Mr Young opened the case. As a direct result of this opening, much evidence and court time was taken up with the living arrangements in the Delahey property from January 2010 until November 2011. Insofar as this evidence concerned the living arrangements of Ms Scerri and Mr Manlio during the six month period prior to November 2011, it was rendered otiose by Mr Young's concession in his final submission that Mr Manlio and Ms Scerri were not living together in the Delahey property for the six months prior to his death.

27 The discrepancy between, on the one hand, Mr Young's opening submission, and on the other, the evidence given by Ms Scerri and her daughter and Mr Young's closing submission, raised a question as to whether he breached his paramount duty to the Court. These discrepancies also raised the potential application of ss 18, 19, 23 and 24 of the CPA. A well prepared opening submission assists in framing and narrowing the issues which are in dispute. Consequently, it advances the objective of ensuring that costs are reasonable and proportionate. Conversely, counsel's opening submission has the potential to result in wasted court time and costs if issues are identified which do not have a proper factual and/legal basis and are ultimately not pursued.

The failure of Ms Scerri to waive client legal privilege

28 In the present proceedings, an inference arises that Mr Young made submissions which were inconsistent with instructions which he had received from his client. First, his opening and closing submissions were inconsistent with the evidence given by Ms Scerri and Rachael Scerri. Second, the opening submission and aspects of the cross-examination of Anthony Manlio were inconsistent with paragraph [59] of an affidavit sworn by Ms Scerri on 30 April 2015, in which she deposed:

... I am aware that Jimmy was staying at the Delahey property. However, at the time the deceased was living at my house because it was closer to my café/business.

29 On 12 February 2016, Ms Scerri's solicitor filed an affidavit in which he deposed to communications with her regarding waiver of client legal privilege. Mr Le deposed that on 22 January 2016, he wrote to Ms Scerri seeking her consent to waive client legal privilege. Ms Scerri was advised to obtain independent advice in relation to waiver of privilege. A firm of solicitors in Essendon was suggested as a possible source of such advice. Mr Le deposed that he subsequently telephoned Ms Scerri on 2 February 2016 and asked her if she would consent to waiving privilege. He told her that if she wanted to waive privilege she would need to provide written instructions to that effect. He deposed that Ms Scerri would not give her instructions to waive privilege. He reminded her that she had the right to obtain legal advice on the issue of client legal privilege, which she refused.

30 In his written submissions of 11 February 2016 and 29 February 2016, Mr Young places great weight upon the fact that Ms Scerri has not waived client legal privilege. In paragraph [1] of his submissions of 11 February 2016, Mr Young submitted:

The defendant in this matter has not waved [sic] legal privilege, therefore a court can only infer what her instructions and the advice given to her by what is recorded in the court documents and the evidence given in court.

31 In Mr Young's submissions of 29 February 2016, he wrote at paragraphs [4]-[7]:

In paragraph 1 of the abovementioned email, I am impliedly asked to comment on what my instructions were. Ms Scerri has not waived legal privilege in this matter. I am not entitled to divulge what my instructions were. The court is putting me in an embarrassing position by asking me to divulge these instructions. It is not appropriate for the court to make these inquiries. By making such inquiries, the court is not respecting the right of legal privilege of my client. The court cannot infer what my instructions were one way of [sic] the other. It is possible that my instructions have never changed in this matter. It is possible that they have changed at various times in this matter. It is not a matter for the court to inquire of and strong objection is taken to the inquiry by the court.

Courts are critical of barristers who tell them what their instructions are. Courts require barristers to provide the court with submissions as to what the court should do. Barristers who tell the court what their instructions are in relation to serious matters about a case are usually criticised by Judges. Judges usually tell barristers who do that they are not interested in their instructions, they are interested in their submissions.

In relation to paragraph 2 of the email, it is not open to the Court go [sic] infer that I made submissions that were inconsistent with my instructions. The court knows that Ms Scerri told me that in 2011 she was pretty much living at Delahey all the time. The court refers to this in paragraph 15 of the Honour [sic] Justice McDonald's judgment and in such paragraph it refers to what amount of cross-examination by Justice McDonald of Ms Scerri about the proposition of where she was living in 2011 and Ms Scerri volunteered to the court the pattern of where she was living in 2011 (see paragraph 15 of the Honourable Justice McDonald's judgment).

If it was assumed, for the purpose of this argument, that Ms Scerri had given me certain instructions, the court cannot decide that Ms Scerri did not change her mind or instructions after giving that to me. This often happens in the trials of matters. There is simply no basis for the court to make the assumption as to what happens. The court persists with asking me to breach my duty to my client to reveal her instructions when I am not free to do so.

32 Mr Young's submission is misconceived. At no point did the Court request Mr Young to divulge Ms Scerri's instructions. Rather, the Court drew Mr Young's attention to various matters, including an affidavit sworn by his client, which raised an inference that he may have acted contrary to instructions. He was asked to address the question of whether the apparent inconsistency between that objective material, and his opening and closing submissions, supported a finding of one or more breaches of the CPA. A court is entitled to inquire of a practitioner whether they have acted contrary to instructions when there is objective material which raises an inference to that effect.

33 Confidential communications between lawyers and clients and the content of confidential documents prepared by lawyers, clients or other persons which are for the dominant purpose of the lawyer providing legal advice, or the client being provided with professional legal services in current or prospective litigation, are protected by client legal privilege.[18] Mr Young's submission proceeds from the incorrect premise that a court is precluded from making any inquiry regarding the existence of confidential communications between a lawyer and their client. There is a significant distinction between the fact of a confidential communication (which is not protected from disclosure) and the contents of a confidential communication for the dominant purpose of providing legal services in respect of present or anticipated litigation (which is protected from disclosure).[19]

34 At paragraphs [3] and [4] of his written submissions of 11 February 2016, Mr Young submitted:

That I as counsel had eleven hours of conferences with the defendant and her witnesses. Such conferences were to obtain instructions and to prepare Affidavits in this matter. In addition to the abovementioned conferences, I had numerous telephone and personal conferences with Mr Thanh Le, my instructing solicitor in relation to this matter. I did not record the times of these conferences and I did not charge for these conferences.

The defendant gave forceful instructions and forceful advice was given to her by me in the presence of my instructing solicitor, Mr Thanh Le, as to the evidence in this matter, the law and the likely outcome of the case on the basis of the evidence that had been presented to me both by the plaintiff and the defendant at the time I was giving the advice. Mr Le also gave forceful advice.

35 Save for the matters set out above, Mr Young has not descended to any detail as to the time, location and subject matter of any communication between himself and Ms Scerri. He makes no reference to any communication with Ms Scerri and/or the instructing solicitors between 25 August 2015 when Ms Scerri and her daughter gave evidence and 6 November 2015, when Mr Young made closing submissions inconsistent with their evidence.

36 The objective matters drawn to Mr Young's attention raised an inference that he may have acted contrary to his instructions. In response, Mr Young could have submitted that his final submissions were in accordance with his instructions. This would not have involved any breach of privilege. Further and alternatively, he could have identified the circumstances, but not the content, of any relevant communication between himself and Ms Scerri.

37 In Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5),[20] Dixon J stated:

Although a claim to client legal privilege cannot be effectively tested by cross-examination, the assertion that there were relevant communications can be so tested. Despite Hue's solicitors' challenge, rightly made in my view, about the nature of the evidence of privileged communications, Hue did not cross-examine Mr Noble about those communications. On the other hand, although put on notice of the prospect of that challenge, Mr Noble did not specifically identify any relevant communications. Noble Lawyers' failure to identify any relevant communications permitted a submission that I need not assume that the solicitor had privileged advice, or instructions, that explained his belief in a proper basis. Client legal privilege was no impediment to Noble Lawyers disclosing the fact, as opposed to the content, of confidential communications on this issue. I am not persuaded that I am able to assume that Noble Lawyers had privileged advice, or instructions, that explained his belief in a proper basis for the scaffolding claim.

Noble Lawyers bore the burden of proving that there were privileged communications that might permit it the benefit of a doubt that relevant exculpatory circumstances were understood by the court. ...[21]

38 Rather than adopting an approach consistent with that set out above, Mr Young resorted to the glib and tendentious submission:

... It is possible that my instructions have never changed in this matter. It is possible that they have changed at various times in this matter. It is not a matter for the court to inquire of and strong objection is taken to the inquiry by the court.[22]

If in fact Mr Young made a submission to the Court inconsistent with the evidence of his client without having instructions to do so, he has almost certainly breached his duty both to his client and the Court.[23]

The admissibility of affidavits filed but not previously tendered in evidence

39 Five affidavits were filed by the parties and practitioners in accordance with orders made by the Court on 21 December 2015. These affidavits have been admitted into evidence without objection for the purpose of the s 29 inquiry and on the question of costs.

40 In addition, for the purpose of addressing matters relevant to the s 29 inquiry and costs, the Court has had regard to the contents of the following affidavits which were filed by the parties prior to the commencement of the trial on 24 August 2015:

(a) Affidavit of Maria Scerri in Reply sworn on 30 April 2015;

(b) Affidavit of Brian Coates sworn on 16 April 2015;

(c) Affidavit of Matthew McNair sworn 1 April 2015;

(d) Affidavit of Lisa Nicole Stagliano sworn on 26 March 2015;

(e) Affidavit of Rosemary Bernadette Borg sworn on 26 March 2015; and

(f) Affidavit of Vito Manlio sworn on 20 March 2015.

These affidavits have also been admitted into evidence but only for the purpose of the s 29 inquiry and the question of costs.

41 Prior to the affidavits being admitted into evidence the parties and practitioners were provided with an opportunity to file written submissions setting out the basis of any objection. The only submission objecting to the admission of the affidavits was received from Zeljko Stojakovic. Mr Le submitted on behalf of Zeljko Stojakovic, Ms Scerri and Mr Young, that the affidavits should not be admitted into evidence. He submitted that:

... the Court should proceed only on the evidence presented before the Court at trial and the affidavits specifically sworn in respect of the costs enquiry.[24]

42 When conducting an inquiry pursuant to s 29 of the CPA, the Court is not limited to the evidence which has been admitted during the earlier proceedings. In Yara Australia Pty Ltd v Oswal,[25] the Court of Appeal stated that a s 29 inquiry 'may require the introduction of material that was not before the court as part of the proceeding.'[26] The six affidavits referred to above are relevant to the Court's inquiry under s 29. In particular, they are relevant to the contention advanced by Mr Young that Ms Scerri and her legal representatives had no advance notice of the plaintiff's contention that Jimmy was living with Mr Manlio at the time of his death.

43 Mr Young was asked to address by way of further submissions paragraph [59] of an affidavit sworn by Ms Scerri on 30 April 2015, wherein she deposed:

... I am aware that Jimmy was staying at the Delahey property. However, at the time the deceased was living at my house because it was closer to my café/business.

44 Paragraph [59] of Ms Scerri's affidavit of 30 April 2015 responds to paragraph [10] of an affidavit sworn by Vito Manlio, the deceased's brother, on 20 March 2015, wherein he deposed:

From my knowledge, at the time of my brother's passing, ROMANO was living a "bachelor's" lifestyle. This involved going out with his mates, watching sport and playing billiards. He was living with a friend known as JIMMY, because he was having marital issues.

45 During the course of the trial a considerable amount of evidence was led regarding 'Jimmy'. Several witnesses gave evidence that, for a period of at least six months prior to November 2011, Jimmy had been living full time with Mr Manlio in the Delahey property. This evidence was difficult to reconcile with any contention that throughout that period Ms Scerri and her children were also living in the Delahey property. Ultimately, in his closing submissions Mr Young, consistent with the evidence advanced in opposition to Ms Scerri's claims, submitted that Jimmy had been living at the Delahey property for six months prior to Mr Manlio's death.[27] Mr Young submitted that Ms Scerri had moved out of the Delahey property because she did not want to expose her children to Jimmy who was an alcoholic.[28]

46 To establish that she was Mr Manlio's unregistered domestic partner, Ms Scerri had to prove that she was living with him at the time of his death as a couple on a genuine domestic basis. The evidence that Jimmy was living with Mr Manlio in the Delahey property for six months prior to his death was difficult to reconcile with a finding that Ms Scerri was living with Mr Manlio as a couple on a genuine domestic basis. The significance of the evidence regarding Jimmy was reflected in Mr Young's written submissions of 11 February 2016 at paragraph [12], that Ms Scerri and her lawyers were 'ambushed' in relation to the evidence which was led at trial in relation to Jimmy. He submitted:

In the plaintiff's Affidavit or her trial outline, including the admitted and disputed facts, the witness Jimmy is never mentioned. The plaintiff had not put the lawyers for the defendants on notice that a person was living at the Delahey property with the deceased before his death. This person was a potential witness. If the lawyers for the defendant had known about Jimmy and that the plaintiff intended to rely on the fact that Jimmy was living with the deceased shortly before his death, it would have been incumbent upon them to put that to the defendant and take that into account in making an assessment about this matter. There is no evidence that the court can infer that the lawyers for the defendant knew about the person, Jimmy, before the trial commenced.

... If the defendant's legal advisers had known about Jimmy and him living at the deceased's house immediately before his death, and that the deceased in the six months before his death had the girlfriend Cathy Vella, this no doubt would have formed a weighty consideration for the defendant's lawyers to consider. ...

If the defendant's legal representatives have [sic] known about Jimmy and had been given more expansive details about the witness Cathy Vella before the trial, this would have been a weighty matter for them to advise the defendant on, but because they were not provided with such material, they were not able to give any advice in relation to the evidence of Cathy Vella or the importance of the person, Jimmy, who was living with the deceased before his death.

49 In its email of 22 February 2016, the Court drew Mr Young's attention to paragraph [59] of Ms Scerri affidavit of 30 April 2015, in which she acknowledged that Jimmy was staying at the Delahey property in November 2011. In his submissions dated 29 February 2016, Mr Young objected to the Court placing any reliance upon paragraph [59] of Ms Scerri's affidavit. He submitted, 'This affidavit was not tendered in the proceeding and is therefore not evidence in the proceedings and should not be relied upon by the court.'[29] However, in the same submissions Mr Young stated:

In my previous submissions dated 11 February 2016, I said that the person Jimmy was not referred to in the affidavit material. The court has pointed out that Ms Scerri referred to him in her affidavit of reply dated 30 April 2015. I was obviously mistaken in relation to this matter and I apologise for any inconvenience caused to the court because of that or my learned friend. In my defence I can only say it was inadvertence on my behalf.[30]

50 Thus, on the one hand Mr Young objects to any reliance being placed upon the affidavit of 30 April 2015, and on the other hand he refers to it and relies upon it as the basis for his apology as set out above. Further, in his submissions dated 11 February 2016, Mr Young set out paragraph [7] of Ms Scerri's affidavit of 30 April 2015 in support of his submission that his opening submissions were consistent with her instructions. Mr Young also made repeated, albeit misconceived, criticism of the failure of the affidavits filed on behalf of the plaintiff to make any reference to Jimmy. He relied upon this to support the serious allegation that Ms Scerri and her legal representatives were 'ambushed' in the manner in which the trial was run. Finally, during cross-examination by Mr Antill, Ms Scerri was taken to her affidavit of 30 April 2015 and asked a number of questions regarding its contents.[31] Mr Young did not object to this course. To the contrary, in re-examination he asked Ms Scerri a number of questions regarding the contents of her affidavit of 30 April 2015.[32]

51 Ms Scerri's affidavit of 30 April 2015 was included in a court book which was prepared by the plaintiff's solicitor and was the subject of both cross-examination and re-examination. No question was raised as to the authenticity of the affidavit. Mr Young has complained that there was no reference to Jimmy in the affidavits filed on behalf of the plaintiff. There is no legitimate basis upon which he can object to the Court considering the contents of those affidavits in order to determine whether this allegation has substance. It plainly does not. The fact that Jimmy was living with Mr Manlio prior to his death is expressly referred to in an affidavit sworn by Vito Manlio. Ms Scerri turned her mind directly to that allegation and responded to it in her affidavit of 30 April 2015. Mr Young was squarely on notice prior to the commencement of the trial that the plaintiff would contend that when Mr Manlio died he was living with Jimmy.

52 Mr Young apologises for any 'inconvenience' caused by his failure to have appreciated this fact. However, the issue is more serious than a question of inconvenience. It raises very serious questions regarding Mr Young's state of preparedness to conduct the trial. Unnecessary time was expended in relation to the question of whether Jimmy was living in the house with Mr Manlio prior to his death when this should not have been an issue at all.

53 Mr Young cross-examined Anthony Manlio on the basis that '[t]here was nobody [sic] Jimmy living at your father's house for the six months before his death'.[33] Anthony Manlio had previously given evidence in chief that Jimmy had been living at his father's house for the six months prior to his death. Plainly, it was a very serious matter for Mr Young to effectively put to Anthony Manlio that he had lied under oath. Mr Young did so in circumstances where there was an extant affidavit of his client, which was inconsistent with Mr Young's line of cross-examination.

54 In his submissions of 11 February 2016 at paragraph [19], Mr Young contends that the defendant and her lawyers were also ambushed by the evidence led at trial regarding the relationship between Mr Manlio and Ms Vella. Mr Young submits that Ms Scerri and her lawyers did not know anything about Ms Vella until they were given a written statement which had been prepared by her shortly before she was called to give evidence.

55 It is true that prior to the commencement of the trial the only reference to Ms Vella was in paragraph [24] of Ms Stagliano's affidavit sworn 26 March 2015:

On 1 December 2011 we had a private family viewing for ANTHONY at the funeral home in Fawkner to say goodbye and to put ROMANO'S favourite things in the coffin with a letter that ANTHONY wrote. All the family were present with me and KATHY (ROMANO'S current partner).

56 In her reply affidavit of 30 April 2015, Ms Scerri deposed at paragraph [9]:

As to the contents of paragraph [24] I say that in relation to "Kathy" I do not know who that is and I deny the deceased has had any other partner other than me.

57 At paragraph [15] of his submissions dated 11 February 2016, Mr Young submits:

The allegation by the plaintiff that Romano had a partner, Cathy, was misleading. On the evidence before the court Cathy could not be termed a partner, but was rather a girlfriend. There is no evidence before the court that the defendant knew or ever met Cathy. It would have been expected that the plaintiff would have given more extensive facts surrounding the relationship between the deceased and Cathy so as to put the defendant on notice as to Cathy.

58 There is substance in Mr Young's criticism of the plaintiff's failure to provide more extensive material relating to the relationship between Ms Vella and Mr Manlio, prior to the commencement of the trial. As is apparent from the principal judgment, the Court concluded that the relationship between Mr Manlio and Ms Vella was a significant consideration which undermined Ms Scerri's contention that she was the unregistered domestic partner of Mr Manlio at the time of his death. Nevertheless, the reference in Ms Stagliano's affidavit to Ms Vella having attended the private viewing of Mr Manlio's body, together with close family members, was of great significance. If Ms Scerri was Mr Manlio's partner at the time of his death, why was another woman attending such an important and intimate family gathering? It is to be noted that at paragraph [56] of the principal judgment the Court relied upon Ms Vella's attendance at the viewing as reinforcing the conclusion that the relationship between her and Mr Manlio 'went well beyond a casual sexual encounter'.

59 I reject Mr Young's contention that Ms Scerri and her lawyers were ambushed by the evidence relating to Ms Vella. Although the evidence went beyond that which had been foreshadowed in the affidavit of Ms Stagliano, it was consistent with that affidavit and the contention contained therein that at the time of his death Mr Manlio was in a relationship with Ms Vella.

60 Putting to one side the reference in the affidavit of Vita Manlio to Jimmy living in the Delahey property, and the reference in Ms Stagliano's affidavit to Ms Vella having attended the private viewing, Ms Scerri and her lawyers were placed squarely on notice that Ms Borg, Mr McNair and Mr Coates would give evidence totally inconsistent with the evidence led on behalf of Ms Scerri. Ms Scerri's affidavit in reply of 30 April 2015 mostly denied the contents of the affidavits of Ms Borg and Messrs McNair and Coates. No objective evidence was put forward which called their evidence into question. This was subsequently reflected in Mr Young's cross-examination of these three witnesses. Mr Young was unable to mount any meaningful challenge to their evidence because he had no objective evidence that he could put to the witnesses. Ms Scerri's affidavit in reply to the affidavits of Ms Borg and Messrs McNair and Coates consists of denials and evidentiary objections. For example, the reply to Mr Coates' affidavit consists of one line:

I object to the entire affidavit of Brian Coates on the basis that it is irrelevant.[34]

61 Paragraphs [5] to [7] of Mr Coates' affidavit state:

During these years of 2006 and 2007 right through until ROMANO's passing I would spend many night [sic] staying at his place on weeknights and weekends.

There was also a number of other friends who would meet and stay at ROMANO's house and often there would be 4 or 5 of us who would go out on a Friday or Saturday night and we would all stay at ROMANO's house in either Hillside, Taylors Lakes or Delahey.

I never saw a woman or any children sharing ROMANO's house. [35]

62 How the evidence set out above could be described as irrelevant is difficult to understand. It went directly to the issue to be decided in the proceeding. Mr Young's cross-examination of Mr Coates comprised 1.5 pages of transcript. His evidence was that from January 2010 until November 2011 he stayed at the Delahey property on approximately 40 weekends and never saw Ms Scerri or her children at the house.[36] It was not even faintly suggested to him during cross-examination that his evidence was fabricated. It was not put to Mr Coates in cross-examination that in fact Ms Scerri was living in the Delahey property throughout 2010 and 2011.

63 I have no hesitation in rejecting Mr Young's submission that he was ambushed at trial by the way in which the plaintiff's case was conducted. If, contrary to this conclusion, I had accepted that inadequate notice was provided of evidence to be led regarding Jimmy and Ms Vella, I would nevertheless have concluded that the affidavits of Ms Borg, Mr McNair and Mr Coates placed Ms Scerri on notice of the case she had to meet.

64 At paragraph [21] of his written submissions of 11 February 2016, Mr Young submits that any criticism of the inconsistency between his final and opening addresses is unwarranted. He submitted:

Insofar as the court is critical of me making a final address based on the evidence presented to the court rather than on what I said in an opening address, this is unwarranted. It is the obligation of the court to make up its mind on the evidence presented and it would be ridiculous for counsel to argue against obviously what is the evidence before the court. It is submitted that it would be remiss of counsel to argue a case which is not supported by the evidence. I admit though that as a matter of credit of a witness, that it is embarrassing when the evidence presented is different to the opening of counsel. The court can only assume that counsel took proper instructions from their own client and has opened in accordance with those instructions, particularly when the evidence of the defendant in this matter has confirmed those instructions to the court. (see page 6 of the judgment). It is noteworthy that the court, at page 11 of the judgment, acknowledge [sic] that I was confronted with a "veritable" tsunami of evidence in relation to who was living at the Delahey house in the six months prior to the deceased's death.

65 In Mr Young's further written submissions of 29 February 2016 he submitted at paragraphs [9] and [10]:

The Honourable Justice McDonald infers that counsel cannot change the final submissions when it is inconsistent with the opening of counsel. With the greatest respect of the court, this is wrong. A court tries a case on admissible evidence. A barrister's job is to make submissions consistent with the evidence in the court. If a barrister does not make submissions consistent with the evidence before the court, a barrister ought to be criticised because there is no basis for him to make his submissions.

I am asking the rhetorical question what is a barrister to do when there is obvious evidence before a court which a court should or is likely to accept which may be inconsistent with the barrister's opening. The Supreme Court is a court of evidence.

66 The answer to the rhetorical question posed by Mr Young is to be found in paragraph [11] of his written submissions of 29 February 2016, where he identifies the following passage from Sir Gregory Gowans' The Professional Conduct, Practice and Etiquette:[37]

The duty of counsel to his client in a civil case - or in defending an accused person - is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, short of that, he may put such matters in evidence or admit such others as, in his discretion, he thinks will be most to the advantage of his client. So also, when it comes to his speech, he must put every fair argument which appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness but only of its honesty. ...

The personal opinion of counsel as to the credibility of his client or the merits of his case is irrelevant to the determination of the issues and ought not to be expressed to Court.[38]

67 Plainly, there may be circumstances justifying a barrister departing from his or her opening submissions. Counsel often foreshadows in opening that their client and witnesses called in support will give certain evidence. If some or all of the foreshadowed evidence is not given, counsel's final submissions will need to reflect any relevant change. No criticism can be levelled at counsel merely from these circumstances. However, this is not what occurred in the present case.

68 Ms Scerri and her daughter gave evidence regarding the living arrangements between Ms Scerri and Mr Manlio throughout the two-year period prior to his death. That evidence was to the effect that Ms Scerri and her children continued to live with Mr Manlio at the Delahey property until shortly prior to the opening of her café in late 2011. From that time, Mr Manlio spent a lot of time at Burnside. Whilst the evidence differed from that foreshadowed in Mr Young's opening submissions, it was consistent with a finding by the Court that Ms Scerri and Mr Manlio were living together on a genuine domestic basis at the time of his death. As I pointed out in the principal judgment, Mr Young's final submission departed in critical respects from the evidence given by Ms Scerri and her daughter. His final submissions were tantamount to an invitation to the Court to reject their evidence on a matter critical to the outcome of the proceedings.

69 It is true that there was a considerable body of credible evidence before the Court which was inconsistent with Ms Scerri's claim that she was Mr Manlio's unregistered domestic partner. However, the evidence given by Ms Scerri and her daughter was supportive of a finding that throughout most of 2011, Ms Scerri and her children had been living with Mr Manlio at the Delahey property. Prior to November 2011, they had returned to the Burnside property, but Mr Manlio had stayed there frequently. Further, had the Court accepted the evidence of Mr Mifsud, Ms Briffa and Ms Borelli, such evidence would have supported a finding that throughout the two-year period prior to November 2011, Mr Manlio and Ms Scerri were living together on a genuine domestic basis.

70 In his submissions of 29 February 2016, Mr Young submitted:

The Honourable Justice McDonald is ignoring how he summarised my argument in submissions as to how I put the case for Ms Scerri. At page 903 of the transcript, Justice McDonald states:

"The notion or concept of living with a person at the time of the person's death as a couple is in your submission that there is authority for the proposition that even there as I understand you conceded the position was at the time of Mr Manlio's death, Ms Scerri was not living with Mr Manlio at the Delahey house, because she didn't want to be in the same house as Jimmy, but there is authority for the proposition that is sporadic residing at the Burnside house would be sufficient to satisfy the concept of living with -

Mr Young: - Yes,

His Honour:- It is.

Mr Young:- That is my submission.

His Honour: - What's your authority on that? I'll have to look at it very closely

Mr Young: - Well Your Honour -

At page 904: -

His Honour:- For my part I read the cases that you referred to in your submissions and I may have not fully appreciated them, but I thought they stood as a proposition that someone could be regarded that there is a degree of flexibility that some could be regarded as living with a person if for instance they were staying at - they were living at one house. So, if it was a combination of living, for instance, at the Delahey and living at Burnside then moving back and forward, then yes by all means they could be living with. But I must say and I appreciate if you could direct me to it, I don't understand any of those authorities as going so far as to support the proposition which I understand you to be advancing.

Mr Young: Your Honour, I drew an inference from those cases and Your Honour, I am not saying Your Honour is wrong about that. I'm old enough and brave enough to say if I thought you were.

His Honour:- Yes.

Mr Young:- But what I sat the living is is looking at the relationship and the relationship that's going on at the time.

His Honour:- Yes."

71 Presumably Mr Young's complaint is that the criticism of his closing submission as being inconsistent with the evidence given by and on behalf of Ms Scerri is unwarranted. The passage set out above does not provide Mr Young with any answer to the Court's finding at paragraph [87] of the principal judgment, namely that his closing submission was tantamount to an invitation to the Court to reject their evidence on a matter critical to the outcome of the proceeding.

72 As set out in the Court's summary of his submissions, Mr Young sought to advance the proposition that Mr Manlio's "sporadic residing" at the Burnside house would be sufficient to satisfy the concept of "living with" in the definition of unregistered domestic partner. This proposition was not consistent with the evidence of Ms Scerri or her daughter. Neither gave evidence of Mr Manlio "sporadically residing" at Burnside. Their evidence was that they all lived together at Delahey for the majority of 2011 and then late in 2011 moved to Burnside. From the time of the move, Mr Manlio spent a lot of time at Burnside.

73 Put simply, the evidence on behalf of Ms Scerri and her daughter was that Mr Manlio and Ms Scerri were continually co-habitating from January 2010 to November 2011, either at the Delahey or the Burnside property. Yet Mr Young disavowed any reliance upon the Court making a finding that Ms Scerri and Mr Manlio were co-habitating:

His Honour: ... So I'm directing your attention to the living with component of the definition and they certainly weren't living, on the evidence and you seem to accept, that as at the - in the week beforehand - in November 2011, they weren't living at Delahey were they? Do you ask me to make a finding they were living in Burnside?

MR YOUNG: No, they don't, no, it's my submission that you don't have to - they don't have to be living in the same house at the same time and that's what the case law says.

HIS HONOUR: Well they certainly weren't living in Delahey. So they weren't living in Delahey, - doesn't that mean if they were living, living, they'd be living at Burnside?

MR YOUNG: It would be my submission if Your Honour's thinking that way you're misdirecting your own - - -[39]

...

HIS HONOUR: But on your submission the, the relationship if there was one could only have been taking place from the Burnside house.

MR YOUNG: Yes but you can have a relationship with somebody and still not live in the same house with them.

HIS HONOUR: So what you're inviting me to find that he, he'd be, he'd Skyped Ms Vella for an hour or so in the evening in, in Delahey and then jump in his car and drive over to Burnside?[40]

I'm asking you to extend those cases, Your Honour, in the sense of, where was your home? You know, this was our home. We were living together. The fact that they were physically apart, the same as if a barrister goes on circuit to the country for a month, you're still living at home in Melbourne. Though you're not physically living there during that period, That is your home and if Your Honour was to accept and I understand this is a matter for Your Honour to decide upon. If you accept that she was treating the Delahey property as her home, that she had her furnishings there. She had her possessions there, her engagement rings and so on. This is her home and that's the relationship. The relationship is continuing on.[41]

75 Returning to the rhetorical question posed by Mr Young, in circumstances where there was evidence before the Court which was inconsistent with that led by and on behalf of Ms Scerri, Mr Young's duty to his client required him to make submissions based on his client's evidence. Mr Young had no right to disregard his client's evidence because he considered that the evidence led in opposition was more likely to be accepted by the Court. However, this is what Mr Young appears to have done in advancing a submission that Ms Scerri and her children did not live in the Delahey property for 6 months prior to Mr Manlio's death.

76 A finding by the Court that Mr Young breached an obligation imposed upon him by the CPA is a very serious matter. Mr Young's submissions do not meaningfully address the issue of whether his conduct constituted a breach of any of the overarching obligations imposed upon him by the CPA. In particular, he failed to address the issue of whether there was a proper basis for the Court to infer that he made submissions contrary to his instructions. Notwithstanding the shortcomings of his submissions, I am not satisfied to the requisite Briginshaw standard that Mr Young breached his paramount duty to the Court and/or overarching obligations arising under the CPA.

77 In Gibb v Gibb,[42] I concluded that there were prima facie grounds that the plaintiff's solicitors breached an overarching obligation under ss 18 and 24 of the CPA. This conclusion was based on the fact that the originating motion was misconceived. The relief claimed should have been sought under the Trustee Act 1958 rather than the Act. Further, when the proceeding was commenced there was no legal or factual material which would have justified the relief sought.[43] The present proceedings do not fall into the same category. As noted at paragraph [90] of the principal judgment, there was factual material available to Ms Scerri's legal representatives which provided a legitimate (albeit weak) basis for her claim to proceed to trial.

78 Ultimately, I have concluded that Mr Young's conduct does not enliven the Court's power to make orders under s 29 of the CPA. However, it is strongly arguable that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. If so, the conduct would constitute unsatisfactory professional conduct as defined in s 296 of Schedule 1 to the Legal Profession Uniform Law Application Act 2014. I will direct the Prothonotary of the Supreme Court of Victoria to forward to the Commissioner:

(c) a copy of the written submissions filed by the parties pursuant to the Court's order of 21 December 2015.

The exhibits and transcript of the proceeding are to be made available to the Commissioner if he wishes to access them.

79 A referral of Mr Young's conduct to the Commissioner is justified by the following matters:

(i) Mr Young has not provided any satisfactory explanation as to why he was unaware of the contents of Ms Scerri's affidavit in reply regarding the presence of Jimmy in the Delahey property. This is a matter which he acknowledged should have weighed heavily upon him when giving advice to Ms Scerri;

(ii) Mr Young's closing submission that Ms Scerri and her children were not living at the Delahey property for six months prior to Mr Manlio's death was tantamount to an invitation to the Court to reject the evidence of Ms Scerri and her daughter on an issue critical to the outcome of the proceeding;

(iii) Mr Young's submissions contended that the Court improperly requested him to disclose the contents of privileged communications with his client. No such request was made;

(iv) Mr Young's submission that the Court was precluded from making any inquiry as to whether there was a basis for finding that he acted without instructions was misconceived; and

(v) Mr Young cross-examined Anthony Manlio regarding the presence of Jimmy in the Delahey property on a basis which was inconsistent with Ms Scerri's affidavit in reply of 30 April 2015.

80 I have concluded that the conduct of Ms Scerri's solicitors, Zeljko Stojakovic, warrants a referral to the Commissioner. In particular, there are matters which may justify a finding by the Commissioner that the conduct of Zeljko Stojakovic falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

81 In an affidavit dated 12 February 2016, Mr Le, a solicitor employed by Zeljko Stojakovic, deposed at paragraphs [18] - [19]:

Had I known of the existence of Catherine Vella and "Jimmy" at the time of issue, this would have affected my view on whether or not there was a proper basis for the application for accounts. The Defendant was not aware of the existence of Ms Vella. In paragraph 9 of the Affidavit of Maria Scerri in Reply dated 30 April 2015, the Defendant swears that "in relation to "Kathy" I do not know who that is and I deny that the deceased has had any other partner other than me."

It was only on the fourth day of the trial being on 27 August 2015 that I first saw the outline of evidence of Catherine Vella dated 26 August 2015 (see T. 469, at L15-19).

82 An application by Ms Scerri seeking estate accounts was filed on 14 November 2014. I accept that based on the instructions provided by Ms Scerri, Mr Le did not have any knowledge of Ms Vella or the allegation that Jimmy was living in the Delahey property at the time of Mr Manlio's death. However, it is plain that by 30 April 2015, Mr Le was squarely on notice of Ms Stagliano's contention that Ms Vella was Mr Manlio's partner at the time of his death and had attended a private viewing of his body. Mr Le was also on notice of Ms Scerri's concession that, at the time of Mr Manlio's death, Jimmy was staying at the Delahey property.

83 Both of these matters had the potential to (and did in fact) severely undermine Ms Scerri's prospects of establishing she was living with Mr Manlio as his unregistered domestic partner at the time of his death. Ms Scerri should have been provided with advice regarding their potential adverse impact upon her claim. There is no evidence before the Court to indicate that those two matters were the subject of any advice. This is not an invitation to disclose the content of any advice given. Rather, the question which arises is whether these critical matters were the subject of any advice.

84 The written submissions filed on behalf of Zeljko Stojakovic contended:

... The defendant and her legal advisors were not aware of the existence of Ms Vella, nor the allegation that "Jimmy" was residing at the Delahey property for 6 months prior to Mr Manlio's death until during the hearing.[44]

85 This submission cannot be reconciled with the affidavits of Vito Manlio, Ms Stagliano and Ms Scerri, referred to earlier in the judgment. Plainly, as with Mr Young, Zeljko Stojakovic were placed squarely on notice - well in advance of the trial in August 2015 - that evidence would be led which was difficult to reconcile with Ms Scerri's claim to have been Mr Manlio's unregistered domestic partner when he died.

86 In paragraph [95] of the principal judgment, the Court made findings that Ms Stagliano's conduct in:

(a) Providing Mr Antill with instructions to cross-examine Ms Scerri on the basis that the furniture/whitegoods were not in the Delahey house in circumstances where Ms Stagliano plainly knew they were; and

(b) Her attempts to improperly influence the evidence given by her son, Anthony,

prima facie constitutes a breach of Ms Stagliano's overarching obligations under ss 20 and 21 of the Civil Procedure Act.

87 Ms Stagliano was directed to file an affidavit and submissions on the question of whether the matters set out at paragraphs [71] and [92]-[93] of the principal judgment constituted a basis for the Court to make a finding that she has breached ss 20 and/or 21 of the CPA.

88 As to the question of whether Ms Stagliano attempted to improperly influence the evidence given by her son Anthony, I have no hesitation in rejecting her attempt, by way of an affidavit sworn 12 February 2016, to explain her conduct.

89 Paragraph [93] of the principal judgment records the background to this matter as follows:

During the course of Anthony Manlio's evidence-in-chief, he was questioned by Mr Antill regarding his recollection of whether or not Ms Scerri and her children were in attendance at his grandmother's at Christmas 2010. Before he had completed his answer to this question, it was necessary for the Court to intervene as follows:

HIS HONOUR: Stop a moment, I've just noticed your client is signalling to the witness, nods and shakes of heads (sic) in response to questions. If that doesn't stop immediately, your client irrespective of being a party to these proceedings will be removed from the court.[45]

The statement set out above speaks for itself.

90 In her affidavit of 12 February 2016, Ms Stagliano deposed:

... Whilst Anthony was giving evidence in chief, I read Cathy's email and statement on my mobile phone. I got quite emotional and must have nodded my head about what she had written as I agreed with her about the comments how Romano was such a gentleman. I was completely taken aback when the honourable judge made the statement referred to in paragraph 93 of his judgment.

91 Ms Stagliano's explanation for her conduct is implausible. As set out in paragraph [93] of the principal judgment, immediately prior to the Court's intervention, Mr Antill asked Anthony Manlio whether Ms Scerri and her children were in attendance at his grandmother's house at Christmas in 2010. After the question was asked, Ms Stagliano discreetly shook her head, indicating a negative response to the question. Her explanation that she was nodding her head in agreement whilst reading Ms Vella's statement does not explain the shaking of her head.

92 It is less clear whether Ms Stagliano provided instructions to Mr Antill to cross-examine Ms Scerri on a basis which she knew to be false. Mr Antill cross-examined Ms Scerri on the basis that white goods and furniture which she claimed to have purchased were not in the Delahey property. Ms Scerri had exhibited Harvey Norman receipts for white goods and furniture to an affidavit filed prior to the hearing. In a written submission filed on behalf of Ms Stagliano, Mr Antill submitted that he did not have verbal instructions to put to Ms Scerri that the items were not in the house. During the trial, Mr Antill submitted that his cross-examination was based on Ms Stagliano's affidavit.[46] In an affidavit sworn 26 March 2015, Ms Stagliano deposed that 'no new furniture or equipment was purchased' for the Delahey property.[47] However, in the same affidavit, in response to Ms Scerri's claim that she had purchased furniture for the Delahey property, Ms Stagliano suggests that Romano compensated Ms Scerri for those purchases by deposing at paragraph [13] that there is evidence 'that large cash payments have been made and this is very likely ROMANO'S payment prior and or after such purchases.'

93 Mr Antill's cross-examination of Ms Scerri was consistent with that part of Ms Stagliano's affidavit in which she deposed incorrectly that no new furniture or equipment was purchased for the Delahey property. However, it was not consistent with the alternative hypothesis that, if items had been purchased by Ms Scerri, she was probably reimbursed by Mr Manlio.

94 Based on the material set out above, and having regard to the Briginshaw standard which is engaged in respect of an alleged breach of the CPA, the Court is not satisfied that Ms Stagliano expressly instructed Mr Antill to cross-examine Ms Scerri on a basis which she knew to be false.

95 Ms Stagliano's attempt to influence the evidence of Anthony Manlio was a very serious transgression of her obligation under s 21 of the CPA. Notwithstanding this finding, I have concluded that it is not appropriate to make an order requiring payment of costs by Ms Stagliano or reducing the costs which the estate of Mr Manlio would otherwise be entitled to. My primary reason for refraining from making any such order is the adverse impact it would, directly or indirectly, have upon Anthony Manlio. The Court has not made any adverse finding in respect of Anthony Manlio. Nor is there any basis for concluding that he was in any way a party to his mother's conduct as set out above.

96 In addition to the orders referring the conduct of Mr Young and Zeljko Stojakovic to the Commissioner, the Court proposes to make the following orders:

(a) The defendant is to pay the plaintiff's costs, including reserved costs, up to an including 21 December 2015 on a standard basis; and

(b) The parties are to bear their own costs in respect of the affidavits and written submissions filed in accordance with paragraphs 2 to 5 of the Court's order of 21 December 2015.

97 In written submissions dated 12 February 2016, Mr Antill submitted that costs should be awarded against Ms Scerri on an indemnity basis. This submission is rejected. Mr Antill submits that offers of compromise were made on the first day of the hearing. This is not correct. Based on Ms Stagliano's affidavit of 12 February 2016, it is apparent that there were without prejudice settlement discussions between the parties on 25 August 2015. However, there is no evidence before the Court of any offer of compromise or Calderbank offer which could enliven an entitlement to indemnity costs.

98 Mr Antill also submitted that Ms Scerri's application for a declaration that she was Mr Manlio's unregistered domestic partner was entirely without any factual or legal basis. For the reasons set out earlier in this judgment, this submission must be rejected. The claim, although weak, did have some factual and legal basis. Ms Scerri's claims for declarations in respect of unpaid loans and the ownership of furniture in the Delahey property did have a legal and factual basis. Further, whilst the Court has rejected much of the evidence given by and on behalf of Ms Scerri, the Court has also made a serious adverse finding against Ms Stagliano of having breached s 21 of the CPA. Special circumstances must exist before a court will award costs on an indemnity basis. Simply instituting or maintaining a proceeding which has little prospect of success will not warrant the making of an indemnity costs order.[48] I am not satisfied that the circumstances of the present proceeding warrant the making of an indemnity costs order.

99 Consequently, the Estate will have to bear the difference between the $146,041 costs which have been incurred and the amount which can be recouped on a standard basis. In this regard it is necessary to observe that the plaintiff's costs of $146,041 are almost $60,000 more than the $87,728 incurred by Ms Scerri. At face value, the fees of both Mr Antill and his instructing solicitors appear to be excessive.

[1] [2015] VSC 733.

[2] See the definition of unregistered domestic partner in s 3(1) of the Administration and Probate Act 1958.

[3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw'); Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170, [171].

[4] Re Manlio [2015] VSC 733, [12] (citations omitted).

[5] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T51 L27 - T52 L5.

[10] (2013) 41 VR 302.

[12] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T51 LL2-4.

[14] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T761 L20 - T762 L8.

[16] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, SPRB 2011 17403, McDonald J, 6 November 2011) T807 LL24-28.

[17] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, SPRB 2011 17403, McDonald J, 28 August 2015) T658 L28 - T659 L10.

[18] See Evidence Act 2008 (Vic), ss 118-119.

[19] See, for example, Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400, [136].

[20] [2014] VSC 400.

[22] Further submissions dated 29 February 2016 in answer to the email dated 22 February 2015, [4].

[23] See, for example, Re Bendeich [1994] FCA 1504; (1994) 126 ALR 643, 650-651.

[24] Email from Tom Le of Zeljko Stojakovic Barristers and Solicitors sent 1:17pm on 7 April 2016.

[25] (2013) 41 VR 302.

[27] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 6 November 2015) T792 LL6-12.

[28] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T53 LL8-11.

[29] Further submissions dated 29 February 2016 in answer to the email dated 22 February 2015, [3].

[31] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T761 L13 - T762 L24.

[33] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T491 LL21-29.

[34] Affidavit of Maria Scerri in Reply affirmed on 30 April 2016, [67].

[35] Affidavit of Brian Coates sworn 16 April 2015.

[36] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T553 LL25-30.

[37] Sir Gregory Gowans, The Victorian Bar: Professional Conduct, Practice and Etiquette: A Compilation of the Governing Structures and Rules (The Law Book Company Limited, 1979).

[39] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 6 November 2015) T801 L22 - T802 L5.

[42] [2015] VSC 35.

[44] Submissions by the defendants solicitors pursuant to the orders of Justice McDonald made on 21 December 2016 dated 12 February 2016, [30].

[45] Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 26 August 2015) T410 LL12-16..

[46] Transcript of proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 25 August 2015) T227 LL19-20.

[47] Affidavit of Lisa Stagliano affirmed 26 March 2015, [11].

[48] Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7].