Re Andrews; Jones v Robinson

And for a non-party, the Administrator, Ms Ines Kallweit

1 On 30 August 2024 I published interim reasons for decision in relation to an application by Best Hooper Pty Ltd (Best Hooper) by summons filed 2 July 2024 in this proceeding.[1]

2 Best Hooper has never been a party to this proceeding. Its counsel objected to me relying on findings by other judicial officers, and contended that the evidentiary foundation on which I could reach any findings of my own was very limited, because Best Hooper did not have access to the affidavits on file in the proceeding save for the ones that had been served on it.

3 In my interim reasons for decision, I referred to aspects of the factual context of the matter, although only briefly and selectively, because of the objections made by counsel for Best Hooper.

4 Following my interim reasons for decision, the plaintiff and administrator made earlier affidavit material filed in the proceeding available to Best Hooper by exhibiting that material to a freshly filed and served affidavit.[2] The factual context of the matter is further described in that affidavit material.

5 It is not necessary to set out the entire factual background, but it is appropriate to note the following facts.

6 The estate that is the subject of this proceeding, the deceased estate of Bruce Andrews (the estate), was substantial.[3] The defendants (Mr Robinson and Mr Raleigh) are solicitors who were, respectively, an employee and a director of Best Hooper, and who were the executors of the estate until July 2019. Best Hooper was paid over $360,000 out of the estate for their legal services.[4]

7 The legal services appear to include general estate administration. There have also been three proceedings in the court of note for present purposes. The first was an application for letters of administration ad colligenda bona in S PRB 2014 04899 (the administration application), and the second was S PRB 2014 11075 (the probate proceeding), in which Mr Robinson and Mr Raleigh, as plaintiffs, sought a grant of probate of an informal will document in relation to the estate, or in the alternative of an earlier formal will, and in which Jennifer Lee Jones (Ms Jones) was one of the defendants. She is one of the significant beneficiaries under the formal will.

8 In the probate proceeding, McMillan J refused Mr Robinson and Mr Raleigh's application for probate of the informal will document, but granted them probate of the earlier formal will.[5] In her reasons for judgment, McMillan J expressed concerns about the quality of the affidavit evidence in the case and noted the overarching obligation of the parties, as contained in s 24 of the Civil Procedure Act 2010, to ensure that the costs of the proceeding were reasonable and proportionate.[6]

9 Over the course of four further sets of reasons in proceeding S PRB 2014 11075, McMillan J addressed a number of issues relating to the costs of that proceeding,[7] culminating in an assessment of the costs of the probate proceeding claimed by Mr Raleigh and Mr Robinson out of the estate. In McMillan J's fifth reasons for judgment, a portion of the costs that had by that time already been paid out of the estate to Best Hooper, representing Mr Raleigh and Mr Robinson's costs of the probate proceeding, was scrutinised by McMillan J and partially disallowed. The disallowed costs were later repaid.[8] Later, a claim was made for interest on the disallowed amount accrued over the period between payment out of the estate and repayment.[9]

10 The third proceeding is this proceeding. In this proceeding, Ms Jones as plaintiff sought removal of Mr Raleigh and Mr Robinson from their office as executors and trustees of the estate and the appointment of an independent administrator. By orders of Moore J made by consent on 19 July 2019, Mr Robinson and Mr Raleigh were discharged from their office as executors and trustees, and Ines Kallweit was appointed as administrator of the estate and trustee. Moore J ordered Mr Robinson and Mr Raleigh to provide to Ms Kallweit an accounting of all costs paid from the estate and deliver up to Ms Kallweit all documents in support of the accounting including copies of all tax invoices.

11 Later in this proceeding, in 2021 and 2024, two judicial registrars of the court made orders in the proceeding relating to the assessment of the portion of the costs paid to Best Hooper that had not been scrutinised by McMillan J in proceeding S PRB 2014 11075 (unscrutinised costs). First, Judicial Registrar Keith made such orders on 23 March 2021, and secondly, Judicial Registrar Conidi made such orders on 15 March 2024, and then twice extended the deadline for compliance with them.

12 The orders of Judicial Registrar Keith were set out at some length in my interim reasons at [15] and I will not repeat them in full. It is sufficient to note that they included the following steps involving the Costs Court and the costs of Best Hooper:[10]

6. This Honourable Court refer the assessment of Best Hooper ...'s costs to the Judicial Registrar of the Costs Court for hearing and determination on the re-drawn bills of costs in accordance with paragraph 29(a), (b) and (c) above, pursuant to Section 17AA(b) of the Supreme Court Act 1986.

7. Following a costs determination of Best Hooper ...'s costs by the Judicial Registrar of the Costs Court, the matter is returned to this Honourable Court, to hear an application by Ms Kallweit, for reimbursement by the Defendants of any sums to be made to the estate and any interest payable on monies to be reimbursed to the estate, pursuant to Section 58 of the Supreme Court Act 1986, or any other matter.

13 The orders of Judicial Registrar Conidi in March 2024 specifically required Best Hooper to take certain steps, including issuing a summons for taxation in the Costs Court and filing and serving a bill of costs.

14 As recounted in my interim reasons, by its summons issued on 2 July 2024, Best Hooper sought orders 'clarifying' certain matters in the orders of the judicial registrars.

15 After hearing and considering detailed and extensive submissions from counsel for Best Hooper and from counsel for the plaintiff and the administrator last year, I published my interim reasons in relation to Best Hooper's summons. The interim reasons addressed the arguments that had been advanced by counsel and ended with an overview of a set of orders I proposed to make, subject to anything further that the protagonists (in particular, Best Hooper and Ms Kallweit) wished to adduce or submit. I directed a timetable for further material and submissions.

16 There followed: a further affidavit from Best Hooper;[11] an affidavit from Ms Kallweit exhibiting earlier affidavit material and a set of submissions filed in this proceeding[12] that she exhibited (and thereby served on Best Hooper) so that it might fairly and appropriately be relied upon by the Court; and two sets of further submissions each on behalf of the administrator and Best Hooper.

17 The two earlier affidavits exhibited to Ms Kallweit's affidavit provide an evidential basis for certain contextual facts that were touched upon in my interim reasons, and also provide the submissions that set out Ms Kallweit's analysis on which she formed concerns that the unscrutinised costs Best Hooper was paid out of the estate are excessive and should be assessed.

18 In submissions filed after Ms Kallweit's affidavit, Best Hooper objected to the admission of the earlier affidavits exhibited to it, on the grounds that Ms Kallweit is not a party to the proceeding, that Ms Kallweit did not depose to her belief that the contents of the earlier affidavits were true, that the contents are hearsay, that there has been no opportunity for cross-examination, and that '[t]he occasion on which those affidavits were to be used has passed'. Best Hooper also objected on the basis that the material is adduced in an attempt to explain what Judicial Registrar Keith intended by his orders, and so they are inadmissible on grounds of irrelevance and opinion.[13]

19 I hereby overrule all those objections. The two affidavits exhibited to Ms Kallweit's affidavit[14] were made in this proceeding and are therefore evidence in this proceeding, not hearsay. The proceeding is on originating motion and there is no right of cross-examination, nor any proper reason for supposing cross-examination would have been appropriate. The affidavits both provide relevant contextual evidence and are not otiose. The submissions exhibited to Ms Kallweit's affidavit are relevant and may appropriately be taken into account as they were part of the context for Judicial Registrar Keith's orders. The orders were made following those submissions, and (partially at least) in response to them. This is a simple matter of ensuring that the Court has a proper understanding of what led to the orders, and does not involve opinion evidence or inadmissible speculation.

20 In its two sets of submissions filed after my interim reasons, Best Hooper opposed the orders proposed in the interim reasons.

21 Ms Kallweit largely supported them, although she disagreed with the form of the proposed order summarised at [78(d)] of the interim reasons.

22 As I note at the end of these reasons, I have concluded that the order I proposed in my interim reasons at [78(d)] should not be made in that form. However, I have not adopted the alternative form of that order that was proposed by counsel for Ms Kallweit. I have, rather, concluded that it would be appropriate for Ms Kallweit to be given the option to commence a proceeding in the Costs Court by filing a summons in the Costs Court against Best Hooper, Mr Raleigh and Mr Robinson seeking taxation of the unscrutinised costs and recovery of those costs. It will be up to Ms Kallweit to choose whether all or part (and if so what part) of the unscrutinised costs are to be assessed. Unless she files a summons in the Costs Court, the referral will not proceed.

23 I have considered all of the arguments advanced by counsel for Best Hooper opposing the proposed orders. One of the arguments has led me to modify one of the proposed orders (that is, the criteria for assessment included at [78(c)]). Subject to that exception, and a point concerning a reference to the court's rules in the order that was proposed at [78(d)], I have concluded that Best Hooper's counsel's arguments should not be accepted. The points raised are either incorrect or insufficiently cogent to lead to different orders from the ones I proposed.

24 In the paragraphs that follow, I address the key points that can be distilled from the submissions of counsel for Best Hooper. I have not specifically addressed in writing all the many threads of argument that were set out in the submissions. However, I did consider them all. Where I have not specifically addressed a thread of argument, I treated it as associated with one of the key points specifically rejected in these reasons, and I did not regard it as justifying a separate written response.

25 In his first set of submissions, counsel for Best Hooper first submitted that the administrator had previously submitted that the Legal Profession Act 2004 (Vic) applies, with the consequence that no costs disclosure was required because Mr Raleigh and Mr Robinson were within s 3.4.12(1)(c).[15]

26 In reply, counsel for the administrator submitted that to the extent that any previous written submission made reference to a costs disclosure breach, those submissions were withdrawn. She also submitted that the situation under both the Legal Profession Act 2004 and the Legal Profession Uniform Law is that, if there is no costs agreement costs are to be assessed on scale.[16]

27 The Legal Profession Uniform Law 2014 (Vic) commenced in tranches[17] during the period Best Hooper was invoicing the estate for legal services, so I will assume that part of those costs fall under the Legal Profession Act 2004 and the balance fall under the Legal Profession Uniform Law.

28 I note Ms Kallweit's withdrawal of any argument that there was a breach of costs disclosure requirements.

29 The only matter of relevant controversy appears to be whether there was a costs agreement, in the absence of which it was said (by Ms Kallweit) that costs must be assessed at scale (or presumably, for general estate administration, on an applicable practitioners' remuneration order).

30 The evidence adduced by Best Hooper is that there was no 'formal costs agreement'.[18] Putting to one side an argument made by counsel for Best Hooper that entries the solicitors must have made in Best Hooper's computer system for generating invoices can be regarded as constituting a written (or perhaps implied) costs agreement (addressed below), there is no suggestion that there was a costs agreement between Best Hooper on the one hand and Mr Robinson and Mr Raleigh (or any other material person) on the other, relating to the money was paid out of the estate to Best Hooper.

31 Under the Legal Profession Act 2004, in the absence of a costs agreement, the costs of the former executors are to be assessed at an applicable scale of costs or practitioners' remuneration order or, if none applies, according to the fair and reasonable value of the legal services provided.[19] I accept Ms Kallweit's argument that the scale applies in the absence of a costs agreement under the Legal Profession Uniform Law too. I return to the question of whether there was a costs agreement shortly.

32 Also in his first set of submissions, secondly, counsel for Best Hooper submitted that Mr Andrews' will contained a generous remuneration clause and any suggestion about whether the amounts appropriated from the estate were not proper must be assessed against that clause.[20] That clause provides:[21]

Any of my trustees who is a lawyer may charge for work done by him or his firm or company as if he were not one of my trustees but had been engaged to act on behalf of my trustees, and he may claim commission in addition.

33 I have decided to modify the order I proposed at [78(c)] of the interim reasons in light of this point. The criteria for assessment of Best Hooper's costs by the Costs Court should be that they be allowed from the estate to the extent that they are fair and reasonable in all the circumstances including by reference to the above clause. This is intended to enable the parties to the Costs Court proceeding to address the relevant judicial officer in more detail on the test to be applied if they wish.

34 Also in his first set of submissions, and apparently as part of or incidentally to the second submission, counsel for Best Hooper submitted that, if it was suggested or assumed that there was no valid costs agreement, this would be incorrect.[22] He made that submission on the basis that Best Hooper's former practice management software - as presumably used at the time by Mr Raleigh and Mr Robinson - amounted to a valid costs agreement. He submitted that the first judicial registrar's orders 'seem to flow from an assumption that there was no valid costs agreement' and that though in my interim reasons 'the Court records that it has not treated the Judicial Registrar's purported findings as evidence, it must be difficult for the Court to put out of its mind previous factual determinations made by fellow judges and judicial decision makers'. He submitted that where there was a costs agreement under the Legal Profession Act 2004, the taxing officer is precluded from considering the fairness and reasonableness of the amount of legal costs pursuant to ss 3.4.44(1)(c) and 3.4.44A.

35 I reject any contention that the evidence so far adduced establishes that there was a costs agreement. In my view, the evidence and assumptions Best Hooper invites me to rely upon fall short of meeting the requirement for a finding that there was a costs agreement. That is so whether the relevant costs agreement is said to be in writing, or implied, or partly in writing and partly to be implied. The notion that presumed entries in a computer system constituted a costs agreement seems unsound, and at the very least detailed evidence of those written entries would be required, so it could be ascertained whether they amounted to a costs agreement. An oral agreement would not suffice, unless evidenced in writing.

36 In inquiring of Mr Robinson whether there was a costs agreement, an associate of Best Hooper emailed Mr Robinson, noting that one of the purposes of the email was 'to prove by evidence that the costs agreement between the parties was in fact contemporaneously evidenced in writing' and stating an understanding that 'in order to create the bills which were created, there must have been and was a LEAP record created, probably by your client, stating the matter, the clients and the rates at which the file handlers would charge, an electronic document which was available to the principals of the firm and to Mr Robinson and Raleigh alike, but which is no longer available to the firm ...'.[23]

37 In this context, the email asked Mr Robinson whether he could confirm that there was an agreement, 'even if the agreement was oral or implied'.[24] Mr Robinson responded in the affirmative to this question.[25]

38 Mr Robinson did not give further details of the oral agreement, such as between whom it was made, or when, or what rates applied, or what its scope, limitations or other conditions were. It was not explicitly said in Mr Robinson's brief email response whether he considered that he or Mr Raleigh merely purported to have made such an agreement between themselves, and to what extent the agreement might be entirely implied, or entirely oral, or a mixture.

39 The applicable law made it clear that an oral agreement would be insufficient, unless evidenced in writing.[26] Mr Robinson was further asked in Best Hooper's email whether he could confirm that 'the matter, client details and hourly rates applicable were recorded in LEAP consistently with that agreement?' He also answered this suggestion in the affirmative.[27] However, I am not persuaded that this is a sufficient basis to make a finding that there was a costs agreement, let alone one evidenced in writing.

40 Also in his first set of submissions, thirdly, counsel for Best Hooper submitted that the beneficiaries of the estate as non-associated third party payers pursuant to s 3.4.2 of the Legal Profession Act 2004 could have challenged Best Hooper's costs under 3.4.38(2). He submitted that it is many years since the last invoice and the ordinary limitation period for challenging each bill expired on the anniversary of that bill. He submitted that would cause severe prejudice to Best Hooper including because Mr Robinson and Mr Raleigh have left and it has no corporate knowledge of the matters relevant to the bills and no wills and estates expertise. He also submitted that there is no prejudice to the administrator of the estate because they can make their arguments without Best Hooper being a party. He submitted that sophisticated clients were not entitled to an extension of limitation period: s 3.4.38(6)(a). He submitted it was inconceivable that any such extension would be granted. He submitted that the beneficiaries also had standing to make a complaint to the Victorian Legal Services Commissioner but the time for doing so passed long ago.[28]

41 It is true that a good deal time has passed since the costs were incurred, but very little if any of that delay can be laid at the administrator's door. Likewise, if it matters, the plaintiff has also acted with due expedition. The circumstances of the case are unusual, and this has no doubt contributed to the delay. Any prejudice to Best Hooper arising from the law practice no longer having institutional knowledge of the circumstances in which the costs were incurred or succession law expertise are outweighed by the need to ensure that the estate was only charged fair and reasonable costs, and to ensure that Best Hooper is a party to the assessment. I turn next to why I regard Best Hooper as a necessary party to that process.

42 Also in his first set of submissions, fourthly, counsel for Best Hooper submitted that the matter was not as complex as my interim reasons 'contended'. He submitted that joining Best Hooper would merely add to any complexity. He submitted that there is no reason why the administrator cannot prosecute an argument that the charges were not of a reasonable amount and reasonably incurred (s 3.4.44 of the Legal Profession Act 2004) without the involvement of Best Hooper. He submitted '[s]ince the plaintiff does not seek to have [Best Hooper] pay her anything, regardless of the outcome of this case and even if [Best Hooper] is joined as the third defendant, and [the administrator] unequivocally seeks no relief against [Best Hooper], [Best Hooper] does not wish to be heard'. He submitted that there was nothing before the court justifying the exercise of its inherent supervisory jurisdiction. He submitted there was no evidence that work which was not reasonably necessary was performed or that costs exceeding a fair and reasonable amount were charged. He submitted that the notion that Best Hooper overcharged Mr Raleigh and Mr Robinson was ridiculous.[29]

43 In my view, it is necessary for Best Hooper to be a party to the assessment, lest the administrator needs to have recourse to it to reimburse any amount that should not have been charged to the estate. Best Hooper was the entity that received the costs, and to the extent that the former executors should not have paid money out of the estate to pay for the legal services invoiced by Best Hooper, it should be at least open to the administrator to obtain reimbursement from Best Hooper. The fact that Best Hooper (through counsel) currently says it does not wish to be heard on an assessment of the relevant costs is not persuasive. This statement appears to be qualified by the assertion that the administrator does not seek reimbursement from Best Hooper, and it may also impliedly be qualified by some of the many other strands of argument mentioned in counsel's submissions. I am not satisfied that Ms Kallweit has abandoned any potential claim the estate might have for reimbursement from Best Hooper. If an order were ultimately to be made for Best Hooper to repay some portion of the costs it has received, I cannot be confident that Best Hooper would accept that it had waived the requirements of procedural fairness and had elected not to be heard in the assessment process.

44 Also in his first set of submissions, fifthly, counsel for Best Hooper submitted that nothing could be concluded from the outcome of McMillan J's scrutiny of costs in the probate proceeding in her fifth judgment, because the claims of Mr Raleigh and Mr Robinson in that case were for costs of the proceeding and were dealt with as such. He submitted that the costs that were allowed were costs on the Supreme Court Scale on the standard basis, because that was the appropriate basis for costs of the proceeding payable out of a fund. He submitted that the fact that some of the costs they claimed were disallowed says nothing about whether what Best Hooper charged them on a solicitor-client basis was fair and reasonable as between Best Hooper and them. As a corollary to this fifth argument, counsel for Best Hooper then submitted that it was presumably unnecessary for Best Hooper to have been a party at the time of McMillan's J scrutiny of costs of the proceeding (in her fifth reasons for judgment), and this suggested that it remained unnecessary for Best Hooper to be a party.[30]

45 Although I have given some weight to the concerns expressed by McMillan J to the effect that there was a potential for conflicts involved in the arrangement by which Best Hooper charged costs to the estate,[31] I do not place any weight on the particular outcome of the costs assessment by McMillan J in the probate proceeding. Nor am I persuaded that, simply because Best Hooper was not heard as a party to that assessment, that somehow means that Best Hooper should not participate in the referral of this further assessment, of the unscrutinised costs, to the Costs Court.

46 Also in his first set of submissions, sixthly, counsel for Best Hooper questioned the power of the Supreme Court to refer for determination part of a case already before it to a different court, namely the Costs Court.[32]

47 I addressed this issue in my interim reasons. I remain of the view that the Court has power to refer the assessment of the unscrutinised costs to the Costs Court.

48 Also in his first set of submissions, seventhly, counsel for Best Hooper submitted that the Court did not have power in the circumstances of the case under s 24(1) of the Supreme Court Act 1986, and that any power it might have under the inherent jurisdiction should not be exercised. The key reason for both conclusions apparently advanced by counsel in this respect was that no one with standing was asking for anything to be done and there was nothing suggesting Best Hooper's charges were unfair or unreasonable.[33] He further submitted that any power under s 24(1) should not be exercised either.[34] He submitted that in order to join solicitors to proceedings in order to ascertain whether the party entitled to costs may have been overcharged by their lawyers, there must be a prima facie cause for concern.[35] Counsel referred to the interim reasons at [60]-[65], including the point drawn from that passage that the 'clients of [Best Hooper] were an employee and a director of [Best Hooper], the latter of whom may have stood to benefit from the fees charged by [Best Hooper], giving rise to a conflict of interest', and went on to submit that this was speculation in the absence of evidence.[36] He submitted that the most recent affidavit of Mr McKay showed:[37]

(a) there probably was a valid costs agreement between the defendants and the applicant permitting it to charge them at the rates charged in the bills, radically reducing the proper scope of a costs review by a taxing officer under the then (and still, by virtue of transitional provisions) applicable legislation;

(b) whether or not there was such a costs agreement is really neither here nor there, in light of the remuneration clause in the will; and

(c) it is probably the case that all bills were given by the applicant to the defendants, not to the beneficiaries and none were paid directly by the beneficiaries.

49 He pointed again to the remuneration clause in the will, saying any conflict should be weighed in its light,[38] and submitted that in any event '[e]very solicitor has a conflict between their interest in maximising their fees and their duty to do the best for their client for the least cost' and this is unavoidable and permissible.[39]

50 I repeat that I am not satisfied, on the current evidence at least, that there was a costs agreement. I also repeat that I consider the remuneration clause in the will to be a relevant matter to be taken into account in the assessment. I do not consider that the clause precludes any possibility of a conflict arising. I also consider that the circumstances of this case, where the solicitors in question were executors, takes the case outside the ordinary run of cases.

51 Ms Kallweit's submissions dated 23 July 2020, which have now been served on Best Hooper as an exhibit to her most recent affidavit in September 2024, also provide in my view an additional cogent basis justifying assessment of the unscrutinised costs. In those submissions, at [11] to [15], she pointed out that Mr Robinson's most recent affidavit at the time did not disclose whether fee uploading had been claimed nor furnish all relevant invoices. She also questioned two specific items relating to a costs consultant, at [16].

52 As an apparent corollary to this seventh argument, counsel for Best Hooper also submitted that overcharging would be a disciplinary matter and should not be assumed on the part of officers of the court.[40] Counsel again submitted that in any event Best Hooper would not be a necessary party and did not seek to be heard.[41]

53 It is not necessary or appropriate to characterise the matter as a disciplinary one, in order for the Court to refer the costs of the matter to assessment. In facilitating a reference of the matter for costs assessment, I should not be taken to have formed any view about any conduct being a disciplinary matter.

54 I have already explained why I consider Best Hooper is a necessary party to any assessment of the unscrutinised costs that is to take place in the Costs Court.

55 Also in his first set of submissions, eighthly, counsel for Best Hooper submitted that in any event the orders proposed in the interim reasons at [78] would not be the most appropriate orders, on five grounds.[42] First, the order proposed at [78(d)] should not commence with a reference to r 63.65, because this rule is not a source of jurisdiction. I accept this point. Second, the Court should conduct any inquiry itself, not refer it to the Costs Court. I do not accept this point. Third, any judgment of the Costs Court would be inadmissible by virtue of s 91 of the Evidence Act and could not be relied upon in this proceeding, as neither the administrator nor the plaintiff would be parties to the Costs Court proceeding so no res judicata could arise. For the reasons noted below, I am not persuaded by these points. Fourth, and as regards the question proposed in [78(c)], an assessment of whether the unscrutinised costs were 'of a reasonable amount and reasonably incurred' is not an appropriate inquiry under the Legal Profession Act 2004; rather, 'the enquiry, if there is to be one, should be whether or not it was reasonable, as between the applicant and the defendants, for the applicant to carry out the work to which the legal costs relate and whether or not the applicant carried out the work in a reasonable manner: s. 3.4.44(1). I have modified the previous form of [78(c)], although not in the manner urged here. Fifthly, the parties should be the beneficiaries/estate and Mr Raleigh and Mr Robinson, not involving Best Hooper, which is an unwilling party.

56 As noted, I have taken a some of these points into consideration in reframing the orders facilitating the referral of the costs assessment to the Costs Court. However, I have rejected the most substantive of the points urged by counsel for Best Hooper, including the key argument that Best Hooper should not be a party to the assessment in the Costs Court. As for the argument that a res judicata will not arise because of lack of identity of parties between the Costs Court assessment and this proceeding, I will assume that this may be correct. But it does not follow that this Court will not be able to take the Costs Court's assessment into account. It may be arguable that an issue estoppel arises between Best Hooper and the estate. It may also be open to Ms Kallweit to be joined as a formal party to this proceeding, and this may be relevant to the analysis of such issues. Further, it seems doubtful that s 91 of the Evidence Act would prevent this Court from relying on the outcome in the Costs Court.

57 In his second set of submissions, replying to submissions on behalf of Ms Kallweit, counsel for Best Hooper:

(a) renewed his general objection to statements within orders and reasons being used as evidence, based on s 91 of the Evidence Act;

(b) objected to Ms Kallweit's reliance on her earlier affidavits and submissions, submitting that the affidavits are hearsay and the occasion for reliance on them has passed, and in any event they seem to be only relied upon in an attempt to establish what was in the Judicial Registrar's mind when making orders in 2021, which he submitted to be irrelevant and speculative; and

(c) renewed his submission that the proper parties to any late complaint about the executors' claim for legal costs would not include Best Hooper; rather the court should make the 'beneficiaries/the estate file and prosecute the summons for taxation' as the people with the relevant grievance. He further submitted that, even if the Legal Profession Act 2004 was inapplicable and they had no ability to seek a taxation under that Act, by analogy the court should facilitate a process of that kind, which would allow the Costs Court to give notice to Best Hooper under s 3.4.42 of the Legal Profession Act 2004 if required.

58 I have already addressed the substance of these points. I am not relying on findings in other proceedings, so no difficulty under s 91 of the Evidence Act arises. I have overruled the objection to the exhibits to Ms Kallweit's affidavit of 20 September 2024, and I adhere to the view that Best Hooper is a necessary party to the assessment of its costs. I decline to adopt the alternative mechanism posited by counsel for Best Hooper.

59 I remain of the view that to most efficiently and justly facilitate the determination of the real issues in dispute[43] it is necessary to have Best Hooper, as well as Mr Raleigh and Mr Robinson, be parties in any assessment of the unscrutinised costs. However, the criteria for assessment should be the extent (if any) to which the unscrutinised costs invoiced by Best Hooper exceeded fair and reasonable costs in all the circumstances, including by reference to clause 2(c) of the deceased's will dated 26 June 2012.

60 Best Hooper was the legal person to whom the relevant money was paid. If it eventuates that money was improperly paid to Best Hooper out of the estate, it may ultimately be necessary for the administrator, on behalf of the estate, to have recourse to Best Hooper to recover it.

61 On reflection, I will not make an order requiring Best Hooper to file and serve the summons commencing the assessment process in the Costs Court. The relevant costs have already been paid and Best Hooper is actively opposing its involvement in the process. I will instead facilitate the process by giving Ms Kallweit, who is the true moving party in relation to the proposed referral and assessment, the option of commencing it and delineating its precise scope. She represents the estate, which paid the relevant costs and may have a right to reimbursement of some of them, depending on the outcome of an assessment. Unless she files and serves a commencing summons, the referral will not proceed. In filing and serving the commencing summons, in all the circumstances, it is appropriate that Ms Kallweit be relieved of any requirement to file and serve a bill of the relevant costs, and that she instead may place before the Costs Court any existing affidavit material and other evidence documenting the costs in question, in order to facilitate the assessment as best as can be achieved. I will dispense with any requirement for her to file a bill of the relevant costs. The respondents to the summons should be Best Hooper, Mr Raleigh and Mr Robinson.

(a) Best Hooper Pty Ltd be joined as the third defendant and the title of the proceeding be amended to describe James William Robinson as first defendant, Simon John Raleigh as second defendant, and Best Hooper Pty Ltd as third defendant.

(b) Orders 6 and 7 of the Order of Judicial Registrar Keith made on 23 March 2021 be vacated and treated as no longer in effect but only insofar as they apply to Best Hooper Pty Ltd.

(c) Orders 1, 2 and 3 of the Order of Judicial Registrar Conidi made on 15 March 2024 (as extended on 29 April 2024 and 14 June 2024) be vacated and treated as no longer in effect but only insofar as they apply to Best Hooper Pty Ltd.

(d) The following question be referred for hearing and determination by an Associate Judge sitting as Costs Judge of the Costs Court, or for hearing and determination upon further referral or delegation if the Costs Judge so orders:

Insofar as the costs invoiced by Best Hooper Pty Ltd in relation to the estate were not considered in Robinson v Jones (No 5) [2018] VSC 202 (unscrutinised costs), to what extent did the unscrutinised costs invoiced by Best Hooper Pty Ltd exceed fair and reasonable costs in all the circumstances, including by reference to clause 2(c) of the deceased's will dated 26 June 2012?

(e) Ms Kallweit may issue a summons under r 63.38 of the Supreme Court (General Civil Procedure) Rules 2025 (Rules) to Best Hooper Pty Ltd for assessment in the Costs Court of the costs referred to in the preceding order.

(f) Any requirement for Ms Kallweit to comply with r 63.39(1) of the Rules is dispensed with.

(g) Upon completion of the assessment, the matter be relisted before me or another Judge on a date to be fixed on the question of whether to order any of the defendants to reimburse any of the costs the subject of the assessment.

JAMES WILLIAM ROBINSON (sued in his capacity as executor and trustee of the will and estate of the deceased and in his personal capacity)

SIMON JOHN RALEIGH (sued in his capacity as executor and trustee of the will and estate of the deceased and in his personal capacity)

[1] Re Andrews; Jones v Robinson & Anor [2024] VSC 524 (interim reasons).

[2] Affidavit of Ines Kallweit sworn 30 September and filed 2 October 2024 and exhibit bundle IK-1, relevantly including her earlier 'affidavit of verification - administration account' sworn and filed 11 October 2019 and its exhibits, the affidavit of Mr Robinson sworn 24 January 2020 and its exhibits, and the submissions on behalf of Ms Kallweit dated 23 July 2020 that preceded Judicial Registrar Keith's orders made on 23 March 2021. Best Hooper has also objected to me relying on this material, but that objection is overruled for reasons referred to later in these reasons.

[3] Ms Kallweit's affidavit of 11 October 2019 exhibited an account of the administration of the estate referring to total receipts in shares and cash of over $13 million in value.

[4] The account of the administration of the estate exhibited to Ms Kallweit's affidavit of 11 October 2019 identified line items 171-182 dated from 16/5/2013 to 15/1/2015 recording payments from Best Hooper's trust account on invoices each described as 'Legal Fees - Best Hooper' and totalling $51,608.97, and line items 171-182 dated 8/4/2014 to 30/1/2018 recording payments from Best Hooper's controlled monies account on invoices each described as 'Legal Fees - Best Hooper' and totalling $313,662.08, making a grand total of $365,271.05.

[5] Robinson v Jones [2015] VSC 222 (McMillan J).

[7] Robinson v Jones (No 2) [2015] VSC 334; Robinson v Jones (No 3) [2015] VSC 508; Robinson v Jones (No 4) [2016] VSC 160; Robinson & Anor v Jones & Anor (No 5) [2018] VSC 202.

[8] The account of the administration of the estate exhibited to Ms Kallweit's affidavit of 11 October 2019 identified as line item 65 is a reimbursement of legal fees from Best Hooper of $84,990.48.

[9] Mr Raleigh and Mr Robinson were ordered to pay that interest: order 2 of the orders of Judicial Registrar Keith made on 23 March 2021 (authenticated 30 March 2021).

[10] Omitting references to the other law practice involved in the matter, but which has taken no issue with the court's orders relating to the assessment of costs charged to the estate.

[11] Affidavit of Robert McKay affirmed and filed 2 October 2024 and exhibit bundle RSM-2.

[12] Affidavit of Ines Kallweit sworn 30 September 2024 and filed 2 October 2024 and exhibit bundle IK-1, relevantly including her earlier 'affidavit of verification - administration account' sworn and filed 11 October 2019 and its exhibits, the affidavit of Mr Robinson sworn 24 January 2020 and its exhibits, and the submissions on behalf of Ms Kallweit dated 23 July 2020 that preceded Judicial Registrar Keith's orders made on 23 March 2021.

[13] Best Hooper's 'submissions in response to Kallweit's 30 September 2024 submissions' dated and filed 14 October 2024, [4]-[7].

[14] Ms Kallweit's own 'affidavit of verification - administration account' sworn and filed 11 October 2019 and its exhibits, and the affidavit of Mr Robinson sworn 24 January 2020 and its exhibits.

[15] Best Hooper's submissions in response to 30 August reasons dated and filed 2 October 2024, [3]-[4].

[16] Reply submissions dated 14 October 2024, [3].

[18] Email dated 2 October 2024 from Mr Robinson responding by interlineations to an email dated 1 October 2024 from Best Hooper, at pages 11 and 12 of RSM-2 to the affidavit of Robert Sutherland McKay affirmed and filed 2 October 2024.

[19] Legal Profession Act 2004 s 3.4.19(b) and (c).

[20] Best Hooper's submissions dated 2 October 2024, [5]-[8].

[21] Clause 2(c) of the deceased's will dated 26 June 2012, at page 5 of RSM-2 to the affidavit of Robert Sutherland McKay affirmed and filed 2 October 2024.

[22] Best Hooper's submissions dated 2 October 2024, [9]-[13].

[23] Email dated 1 October 2024 from Best Hooper, at page 9 of RSM-2 to the affidavit of Robert Sutherland McKay affirmed and filed 2 October 2024.

[25] Email dated 2 October 2024 from Mr Robinson responding by interlineations to an email dated 1 October 2024 from Best Hooper, at page 12 of RSM-2 to the affidavit of Robert Sutherland McKay affirmed and filed 2 October 2024.

[26] See s 3.4.26(2) of the Legal Profession Act 2004 and s 180(2) of the Legal Profession Uniform Law.

[27] Email dated 2 October 2024 from Mr Robinson responding by interlineations to an email dated 1 October 2024 from Best Hooper, at page 12 of RSM-2 to the affidavit of Robert Sutherland McKay affirmed and filed 2 October 2024.

[28] Best Hooper's submissions dated 2 October 2024, [14]-[21].

[31] See in particular Robinson v Jones (No 4) [2016] VSC 160 (15 April 2016) [34], [62] (McMillan J) and Robinson v Jones (No 5) [2018] VSC 202 (2 May 2018) [6] (McMillan J), although noting that the reference in the deceased's will at [1(a)] misdescribed Mr Robinson as a 'principal' of Best Hooper - he was an employee solicitor.

[32] Best Hooper's submissions dated 2 October 2024, [36].

[43] Civil Procedure Act 2010 ss 7, 8 and 9.