HER HONOUR: On 25 March 2019, I determined an application brought by Mr Robert Wilcox pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in relation to a decision made by a Registrar of this Court on 3 July 2018 to refuse an application by Mr Wilcox for access to a probate file relating to the Will dated 21 August 2002 of Mr Wilcox' grandfather, the late Ian Francis Sanderson (the deceased) (the Will) (Wilcox v Wilcox [2019] NSWSC 306). In particular, Mr Wilcox had applied to inspect the original version of the Will that was admitted to probate back in 2011 (the original Will).
I concluded that no error had been shown in the decision by the Registrar not to permit Mr Wilcox access to the original Will in circumstances where no reason was put forward by Mr Wilcox (a non-party to the litigation) for such access (see at [36]). What was not before me at that stage was a complete copy of the application to access the Court file. As I will explain in due course, Mr Wilcox now has provided a complete copy of the application he made, dated 27 June 2018, which contains the following three reasons put forward for the application:
1. it appears the will is not valid and i [sic] wish to sight the original will.
2. The authenticity of the will has not been verified during the court proceedings.
3. in 2017 i [sic] have contacted the two witnesses whose names and signatures are on the will and showed them a copy of the will. They said they have never seen the will or my grandfather signing it.
In any event, I noted (at [36]ff of my first set of reasons in this matter) that what Mr Wilcox was now seeking was not the original Will but, rather, the entire probate file and that, since (as I then understood it) no such application had been made in relation to the entire file , there could have been no error on the part of the Registrar in not permitting such access. The document now put forward by Mr Wilcox as a complete copy of that application does not on its face identify the documents for which leave to inspect was then sought (other than insofar as it refers to his wish to sight the original Will).
I dismissed the application for review of the Registrar's decision of 3 January 2018 but went on to address what I understood to be Mr Wilcox' then application (namely, to have access to the entire probate file in order to inspect the affidavit(s) filed in support of the application for probate). I indicated that I proposed to permit Mr Wilcox to inspect and obtain a copy of the affidavit filed in support of the application for probate of the deceased's Will, and to sight the original Will, but that Mr Wilcox should pay the costs of both the first and second respondents of this application on the indemnity basis. I considered that access to the executor's affidavit and to inspect the original Will should be conditional on those costs being paid, or otherwise secured, in advance. I made directions to permit Mr Wilcox to make submissions as to why, if he maintains that is the case, such an order in relation to costs should not be made and deferred making any order for access at that stage.
Mr Wilcox has filed written submissions in which he contends that the costs orders I had contemplated should not be made and that, instead, each party should bear his own costs. (At the hearing of the application before me it was submitted for Mr Wilcox that the first respondent should pay Mr Wilcox' costs of the proceedings given the first respondent's "uncooperative conduct in these proceedings and his late change of position, and the fact that he's now seeking costs" (see T 26.4) or, that, if the second respondent was deemed "a necessary part of these proceedings", that the first and second respondents should each pay half of Mr Wilcox' expenses for this application (see T 26.8).)
[2]
Costs submissions
First, Mr Wilcox contends that, pursuant to r 18.3(1)(b) of the UCPR, he was required to serve or join the respondents of the proceedings as persons affected by the orders he sought.
Pausing there, as I made clear in my first set of reasons, that is not the case in relation to the second respondent. He was not a necessary party to be joined nor was he in any way affected by the orders sought. The basis on which Mr Wilcox seems to have considered that the second respondent was a necessary party to be joined (as explained to me at the hearing on 25 February 2019) was that the second respondent had filed an affidavit to obtain probate for the Will, and it was not until 22 February 2019 that Mr Wilcox was informed that the second defendant had passed the file to another solicitor in 2014. It appears that Mr Wilcox did not accept that explanation in any event. He certainly did not accede to the second respondent's request that the second respondent be removed as a party to the proceedings.
Second, Mr Wilcox points out that neither respondent was obliged to participate; rather, the respondents had the option to file a submitting appearance and did not do so. It is submitted that the respondents' choice to do neither (by which I understand Mr Wilcox to mean the choice by neither of them to file a submitting appearance) was "motivated by their desire to seek costs against Mr Wilcox".
I do not accept that there is evidence to support the contention that the respondents adopted the course that they did because they were motivated by a desire to seek costs against Mr Wilcox. The second respondent was seeking an order that he be removed as a party to the proceedings (relief that I would have granted had it not been unnecessary once the application for review was determined). The first respondent, though originally not opposing leave being granted for access to the file, ultimately adopted a different position in light of the serious (and unsubstantiated at this stage by any evidence) allegations being made by Mr Wilcox in relation to the matter.
Third, Mr Wilcox says that:
Whilst we accept we made one or more technical errors and a couple of mistakes which we corrected during the hearing, we contend that the cost orders contemplated are against the relevant and applicable authorities and the weight of the applicant's evidence and do not address the inappropriate conduct of the respondents who are both solicitors and officers of the court.
In that regard, Mr Wilcox points to what I said at [36] of the judgment and to T 5.20-41 (where I noted that the copy of the application for access that was in the Court Book contained two copies of the front page of the application). Mr Wilcox maintains that the Registrar had page 2 of the application filed on 27 June 2018 which lists three reasons to access the Will (and annexed to his submissions a complete copy of the application).
I accept that on the material now before me (and which was not before me on 25 February 2019) there were reasons proffered at the time the application for access was filed. However, that was not the basis on which I concluded that a costs order should be imposed as a condition of the grant of the application that was then being made orally for access to the entire probate file (and I interpose to note that there was considerable confusion at the hearing on 25 February 2019 on the part of Mr Wilcox' Mackenzie friend (Mr Danis) as to precisely what was the nature of the application made to the Registrar). Nor does anything turn on the dismissal of the application to review the Registrar's decision in circumstances where, notwithstanding this, I proceeded to consider what I treated as a fresh application (orally made) for access to the probate file.
Next, Mr Wilcox refers to parts of his written submissions filed 6 December 2018 ([5] and [7]) and to the oral submissions (at T 6.34ff and T 30.23ff), in which reference is made to his requests for the respondents to provide him, inter alia, with a copy of the affidavit filed to obtain Probate and offered to pay the associated expenses. It is said that the respondents "either did not reply or were evasive and uncooperative and used delay tactics". Complaint is made that, despite having three months' notice, the second respondent "filed his submissions one day before the hearing to cause prejudice to Mr Wilcox" (in which submissions, it is said, "he informed Mr Wilcox that he apparently handed [the deceased's] file to Mr Chapple") (reference here also being made to the oral submissions at T 6.47-50, T 7.4-8 and T 21.30-33).
Mr Wilcox submits that the respondents' conduct during the hearing and in the months prior was not bona fide "and can be described as an abuse of process aimed to prevent Mr Wilcox from accessing information that he might seek to use in other proceedings" (there citing Re Majory, ex parte The Debtor v F A Dumont Ltd [1955] Ch 600; [1955] 2 All ER 65).
Complaint is also made that the respondents did not file any evidence as directed by Rees J on 20 November 2018. (In that regard, it was a matter for the respondents whether they wished to rely on any affidavit evidence. That they did not is hardly a basis for complaint by Mr Wilcox.)
There is also an allegation that, during the 25 February 2019 hearing, the respondents attempted to mislead the Court by making untruthful submissions and engaging in dishonest conduct in breach of various rules of the New South Wales Professional Conduct and Practice Rules 2013 (Solicitor's Rules).
In respect of the first respondent, Mr Wilcox refers to passages in the transcript where the solicitor appearing for the first respondent: said that Mr Wilcox had been provided with a copy of the affidavit to obtain Probate (see T 26.23-34); tendered a copy of the executrix' affidavit used to obtain Probate (see T 26.40-44 and T 27.45); referred to the allegations of forgery and fraud as being first made in Mr Wilcox' submissions (dated 6 December 2018) (see T 28.40-45), when in fact it is said those allegations were first made in his affidavit filed 8 October 2018 (at [6], [7], [11] and [12]); and said that, according to the first respondent's instructions the estate of the late Patricia Wilcox had been fully administered (see T 18.14-21).
In respect of the second respondent, Mr Wilcox raises an inconsistency as to the time at which the probate file was handed to the first respondent - either when Mr Wilcox commenced proceedings over the estate of the deceased (those proceedings it is said were commenced on 24 December 2010) or not until October 2014 (reference being made to [5]-[6] of the submission filed 22 February 2019, and to the transcript at T 19.30-34, T 21.4-8 and T 21.24-28). It is submitted that the letter dated 11 November 2011 marked Exhibit D (which I admitted provisionally subject to relevance) indicates that as at that date the second respondent still had the deceased's file. (That letter, from the second respondent to PT&W Law, solicitors apparently then acting for Mr Wilcox, contains little more than the statement that the second respondent did not have copies of any wills of the deceased other than his last Will dated 21 August 2002 and that a certified copy of the probate document "which issued recently" was enclosed. It does not establish that the second respondent was then holding anything more than a copy of one will and the certified copy of probate; and is not inconsistent with the second respondent having passed his file in the matter to the first respondent in the context of the contested proceedings then on foot - being the proceedings to which reference was made in my initial reasons.) Mr Wilcox also submits that the affidavit filed by Ms Wilcox on the date the deceased's probate was granted (17 October 2011) also indicates that the second respondent was still acting for Ms Wilcox and had the deceased's file (reference here being made to Annexure B to Mr Wilcox' submissions dated 5 April 2019).
Insofar as Mr Wilcox makes serious allegations against officers of the Court (of attempting to mislead the Court by the making of untruthful submissions and dishonest conduct) it would be inappropriate for me to make any such findings without affording the solicitors in question a proper opportunity to respond to those allegations. What I can say is that even if (and I make clear that I am making no finding to this effect) there was some factual error in submissions made in the course of the hearing of the matter before me that would not be sufficient to establish that there was a deliberate attempt to mislead the Court nor would it establish dishonesty. Suffice it to note that nothing in the conduct of the proceedings before me suggests to me that there has been any inappropriate conduct on the part of the solicitors involved in the matter such as might warrant any censure by the Court or any costs order against the solicitors.
Next, Mr Wilcox cavils with what I said at [35] of my initial reasons and in the last sentence of [39]. I set those parts of the reasons out below:
[35] I also consider that there is no basis on which the second respondent should have been joined as a party to the present application. No relief has been sought against him and he clearly has no interest in the outcome of an application by Mr Wilcox for access to the probate file. He has stated that he handed his file in relation to the deceased over to the first respondent when the proceedings were commenced by Mr Wilcox and that he does not have any of the documents requested by Mr Wilcox. He made his position clear in correspondence to that effect.
[39] … Further, the conduct of Mr Wilcox in making broad-ranging and indiscriminate allegations of fraud, unsubstantiated by proper particulars or evidence, is a serious matter and cannot be condoned.
Mr Wilcox submits that the "findings" at [35] are against his evidence and do not reflect the second respondent's "inappropriate conduct" (see [18] above). As to the last sentence of [39], Mr Wilcox says that he has provided direct evidence in support of the fraud allegations in the form of the extract of transcript of Ms Wilcox' oral evidence given under oath on 9 October 2012.
I have already addressed the position as to whether the second respondent was a necessary party to be joined in these proceedings. Clearly, he was not. Whatever the perceived inconsistency as to the date at which he transferred his file in relation to the deceased to the first respondent has nothing to do with whether the second respondent should have been joined to the proceedings. As to the last sentence of [39] in my earlier reasons, I remain of the view (which is only reinforced by the allegations of dishonest and misleading conduct now made against not only the respondents but the solicitor appearing before me on the 5 April 2019 hearing) there expressed. The extract of Ms Wilcox' oral evidence in the proceedings before Pembroke J, to which Mr Wilcox is referring in support of his assertion that he has provided direct evidence in support of the fraud allegations, was noted at [24] of my initial reasons:
[24] … Reliance is placed by Mr Wilcox on a passage in the transcript of the evidence given by the late Ms Wilcox before Pembroke J in which the late Ms Wilcox is recorded as saying that "when he [the deceased] could no longer sign a cheque, I had to become the attorney" (see annexure C to Mr Wilcox' affidavit sworn 8 October 2018; T 09/10/12; 86.49). Mr Wilcox points out that the power of attorney in favour of the late Ms Wilcox was dated 17 April 2002 yet the Will was dated August 2002. (He clearly regards the timing in this respect as suspicious, though as the late Ms Wilcox is now deceased it may now be difficult to test this and there is by no means only one inference that might be drawn from that evidence, see at T 15.21ff.)
The asserted fraud, to which Mr Wilcox referred at the hearing before me (and to which, as I apprehend it, the extract from the hearing before Pembroke J is said to be relevant) is as to whether the deceased's signature on the Will that was admitted to probate was forged. There is no evidence to suggest that either of the respondents was privy to any such fraud (even assuming there to have been any forgery as alleged). The complaint that was made about the respondents seemed to be an assertion (see T 16.10ff of the proceedings on 25 February 2019) that the second respondent's knowledge of the "trusts" to which reference was made in a letter dated 25 September 1980 to Ms Wilcox should be imputed to the first respondent; and that the respective solicitors failed to comply with their obligation to disclose relevant information to the Court (namely, the information as to the "trusts", that Mr Wilcox suggests were testamentary trusts).
Next, Mr Wilcox places emphasises on the exchange I had with the solicitor appearing in the course of the hearing on 25 February 2019 (at T 26.36ff), in which I asked why, if there was no objection to the provision to Mr Wilcox of a copy of the affidavit filed in support of the application for probate that affidavit was not being provided in order to obviate unnecessary costs being incurred. What Mr Wilcox does not here take into account is that the position taken by the first respondent (in opposing access to the probate file) which appears to have been a direct consequence of the allegations of fraud and forgery that Mr Wilcox had raised in his submissions on the present application.
Mr Wilcox next draws my attention to the fact that neither respondent sought cost orders on the indemnity basis. I am aware of that. Hence the opportunity I afforded to Mr Wilcox to make submissions in relation to the proposed costs orders.
Mr Wilcox next submits that, except for the contemplated cost orders, his application was otherwise successful. That is not quite correct. I dismissed his application insofar as the review of the Registrar's decision was concerned. Where he was successful was that I considered that it would be appropriate (in an attempt to quell ongoing dispute and further costs) that he have access to the affidavit filed in support of the probate application and be permitted to inspect the original Will (subject to certain conditions).
Finally, Mr Wilcox submits that the contemplated cost orders should not be made as they would be against r 59.11 of the UCPR and the principles contained in a succession of authorities (Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271 (Jamal); Sahab Holdings Pty Ltd v Registrar-General (No 3) [2010] NSWSC 403 at [35]ff (Sahab Holdings (No 3)); James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 (James); NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 (NRMA v Morgan (No 3)); KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189; [1995] FCA 76 (KP Cable); and Antov v Bokan [2019] NSWCA 40 at [39]-[40]) (Antov v Bokan).
[3]
Determination
The question of costs is within the discretion of the Court and there is a wide discretion in this regard, though it is one that must be exercised judicially and with reference, among other things, to the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute (see s 98 of the Civil Procedure Act 2005 (NSW) and ss 56-59 of that Act).
The starting point is the general rule that costs follow the event, though there can in some cases be difficulty in determining precisely what is the event and in some cases there may be a mixed success on particular issues. Also relevant to take into account is whether the bringing of proceedings would have been necessary whatever the position adopted by one or other of the parties.
In the present case, I dismissed the application for review of the Registrar's decision. On the general rule that would suggest that Mr Wilcox would not have a costs order in his favour and the respondents would have an expectation that they would have a costs order against Mr Wilcox. Here, Mr Wilcox will, on the orders I have proposed, be successful in having access to the relevant document he seeks on the probate file, but it is by no means clear that this could not have occurred had his application for access to the probate file made clear that what he was seeking was a copy of the affidavit sworn in support of the probate application rather than the Will itself (in which respect the Registrar correctly pointed out the procedure for exemplification of the Will).
The basis on which I considered that there should be an order that Mr Wilcox pay the costs of the first and second respondents, as set out in my initial reasons, was that it seemed to me that unnecessary costs had been incurred in this matter - first, because the decision challenged in these proceedings (not to allow access to the original Will) was not in fact the access that Mr Wilcox was seeking when the matter was heard by me; second, because had Mr Wilcox provided reasons in the first place the present application might have been wholly unnecessary; and, third, because there was no reason for the second respondent to be joined.
I accept that the second of those reasons no longer has any force given that the complete copy of the application to inspect the file has been produced. The first and third of those reasons remain, however. Moreover, as I made clear in the initial reasons, the context in which I was proposing the making of those orders included the conduct of Mr Wilcox in the making of serious allegations without proper substantiation or particularisation.
The position in relation to the second respondent can be disposed of quickly. He should not have been joined to the proceedings. He was not a necessary party. Mr Wilcox did not accept that and was not prepared to remove him as a party to the proceedings. I am not persuaded that the second respondent has behaved in an inappropriate way in relation to these proceedings so as to disentitle him to a costs order. Mr Wilcox should pay the second respondent's costs. (I will deal in due course with the basis on which those costs should be ordered.)
As to the first respondent, who it is accepted was a necessary party to the proceedings, it is my view that the stance taken by Mr Wilcox (in making the fraud allegations) is what led to the opposition by the first respondent to leave being granted for access to the probate file.
The authorities to which Mr Wilcox refers do not in my opinion point to the conclusion that the costs orders I have proposed should not be made. Some were considering costs in a quite different context to the present.
In Jamal at 271 it was accepted that conduct in relation to the matter may be discreditable to an extent warranting a party being deprived of costs.
In Sahab Holdings (No 3) per Slattery J at [36] it was recognised that in an appropriate case a costs order may be formulated to reflect the degree of success on distinct issues.
In James, per Beazley JA, as her Honour then was, Tobias and McColl JJA (at [32]), it was said that the rationale underlying a departure from the ordinary costs rule was said to be that where there are multiple issues the application of the general rule may involve hardship where a party succeeds on some issues but not others (citing Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA 338) .
In NRMAv Morgan (No 3), Giles J, as his Honour then was, (at [25]), said that if an order reflecting success or failure on issues is made, it is appropriate to have regard to the time referable to the issues, although necessarily without mathematical precision (referring to Lenning v Alexander Proudfood Company World Headquarters [1991] NSWCA 173) and said that it was not necessary that the issue or issues on which the party failed was or were raised by him unreasonably (referring to Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615ff).
In KP Cable, the Court was considering the principles applicable in relation to an award of security for costs ( i.e., that the Court does not approach an application for security for costs with any predisposition in favour of the award of security; and that the discretion to order security for costs is unfettered and should be exercised having regard to all the circumstances of the case); and setting out considerations that would be relevant to take into account in the exercise of what was recognised as being a wide discretion.
Finally, in Antov v Bokan at [39]-[40], the Court of Appeal was considering an application for security for costs of an appeal and noted that s 60 of the Civil Procedure Act 2005 (NSW) provided that in any proceedings the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute; and that litigants and lawyers are under an obligation to assist the court to further the overriding purpose of the just, quick and cheap resolution of the real issues in dispute.
This is not a case where there were multiple issues, some determined in favour of one party and others in favour of another. Nor is it a case where there is an application for security for costs. Nor is it a case where Mr Wilcox is resisting an order that he bear his own costs.
In my opinion, what makes this case appropriate for a special costs order is the unreasonable conduct of Mr Wilcox in making unsubstantiated allegations of fraud or misconduct against the respondents (one of whom should not have been joined as a respondent in the first place) which is what, in the case of the first respondent, has led to the opposition to the grant of the leave that Mr Wilcox sought. It is recognised that indemnity costs orders may be imposed in circumstances where allegations of fraud have been made and not sustained; and the allegations are irrelevant to the issues between the parties (see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400-401).
In all the circumstances I remain of the view that Mr Wilcox should pay the costs of both the first and second respondents of this application and should do so on the indemnity basis. I also remain of the view that access to the executor's affidavit filed in support of the application and to inspect the original Will should be conditional on those costs being paid or otherwise secured in advance. The conduct of Mr Wilcox has led to unnecessary costs being incurred and it is important that he recognise this before launching into any further applications. Moreover, I would strongly encourage Mr Wilcox to obtain legal advice as to any further proceedings he may wish to bring in relation to the deceased's estate.
[4]
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Decision last updated: 30 April 2019