The perils of litigating, not mitigating

The perils of litigating, not mitigating

The perils of litigating, not mitigating
August 7, 2020 /
The perils of litigating, not mitigating

When it comes to litigating deceased estates, it seems we’re a close second to New South Wales,1 with “1 estate contested per 104,953 persons” annually in Queensland.2

Sadly, adult children of the deceased make up the largest cohort of estate litigants,3 with “enmities and allegiances”4 fuelling disputes.

Litigation of any kind is costly; however, in estate matters, litigation can be a particularly self-defeating exercise, due to the reductive effect of costs orders on the pool of available estate assets in small estates.

Recognising this as a real and serious concern, our courts have created a number of mechanisms to minimise, dissuade, or redirect litigants to a less costly and, some might argue, less combative approach to resolution. They include:

  • Supreme Court of Queensland Practice Direction No.18 of 2018 – Efficient Conduct of Civil Litigation
  • Practice Direction No.8 of 2001 – Family Provision Applications
  • Uniform Civil Procedure Rules, rules 5 and 700A.5

Yet, even with these tools, the number of estate matters before the court demonstrate that many deceased estate disputes remain intractable. Where that occurs, our legislature has created other mechanisms, through the operation of various provisions, granting the court power to guide and/or direct estate litigants to find a less costly resolution.

Buckingham v Buckingham [2020] QSC 230 (Buckingham) explores the power of the court to direct or guide executors through the application of S96 (1) Trusts Act 1973 (Qld) and/or s6 Succession Act 1981 (Qld) in the context of a small estate dispute. His Honour Henry J creatively demonstrates how the court can use its powers to direct quarrelsome family members to find their own pragmatic solution or risk having one imposed on them with attendant costs orders.

Faye Buckingham died on 21 September 20176 survived by her six adult children. By her will Faye appointed two of her six children – Janette and Graham7 – as joint executors of her estate. The estate was not large, worth about $614,756.8 From the outset the administration of the estate was beset with disharmony. In various combinations, the adult children of the deceased did not get along, including the two joint executors.

At the heart of the estate dispute was the true ownership of a unit at Yorkeys Knob. The unit was purchased in 2002 and registered in the name of one of the deceased’s children – James (AKA Jim), however it was bought for $65,000 with money advanced by the deceased and her late husband at their direction.9 So, the question arose as to whether the unit was held on a resulting trust for the estate, or whether it belonged to Jim? Overarching that question was whether there was a reasonable economic benefit to the estate in pursuing the claim and whether an interim estate distribution ought to be made while the matter remained outstanding?

Janette wished to pursue Jim, Graham did not. This contention resulted in the estate not being advanced.10 Consequently, two actions were brought before the court. One by Jim and the other by Janette.

“Jim sought to remove Janette and Graham as executors”,11 substituting in Graham as sole executor.12 Janette brought an application for advice from the court as to the propriety of the estate pursuing Jim for the unit.13

At the time of the hearing the unit was worth between $110,000 and $120,000 gross.14 The unit was subject to a mortgage of $45,549.53 and, if sold, it would be subject to agent’s commission of $9400.15 Those costs reduced the net value of the unit to between $55,000 and $65,000. There would also be a further reduction in net value on determination of capital gains tax.16

Critical to this economic assessment was the question of legal costs. The court received evidence that on a ‘best case scenario’ the estate would “bear about $6000 costs and a worst case scenario of the estate having to bear about $114,000 costs”.17

The court observed: “[D]epending on the outcome of the action and costs orders, the estate risks losing proportionately more than it stands to gain. That equation alone suggests a prudent executor would hesitate to pursue such an action without at least first exploring settlement of the dispute.”18 There lay a further issue – the unwillingness of the executors to negotiate/mediate a resolution.

Henry J elected to deal with Janette’s s96 Trusts Act 1973 (Qld) application first. He considered that “aspects of it inform consideration of the application for removal of the executors”.19

He noted that a key feature of s96 was the requirement that there be “a written statement of facts”.20

Henry J found there was none.21 His Honour rejected the submission by Janette’s counsel that her affidavit material satisfied that requirement.22 When directed by counsel to his own decision in Noftz v Kane,23 where an affidavit was relied on, his Honour distinguished it by clarifying there “the facts were readily apparent from the affidavit. They are not readily apparent here. The affidavits here contain conflicting assertions of belief and fact, some of which do not properly identify their factual foundation and some of which are likely assertions of opinion or hearsay rather than direct evidence.”24

Janette’s counsel argued in the alternative that his written submissions provided the requisite statement of facts. Henry J also rejected that submission because counsel’s written submissions predated various of the affidavits on which the application relied.25 His Honour found that, without a clear statement of facts, he could not grant the application under s96 Trusts Act.

However, Henry J noted there was no objection to the statement of facts issue by opposing parties. So he turned his focus to s6 of the Succession Act 1981 (Qld) which gave him power (in relation to estates) to “make all such declarations…as may be necessary or convenient”.26

In applying s6, Henry J affirmed that the question of whether it was proper for the estate to bring the action, “invites the same approach to the merits as would be applied in a s96 Trusts Act application”.27

In exploring the relevant considerations to which a court must have regard, his Honour affirmed Atkinson J’s summary28 in Coore v Coore,29 cited with approval in Ban v The Public Trustee of Queensland.30 Through paragraph 17 to 63 Henry J examines the evidence in the context of the legal principles. They included the law relating to the presumption of advancement, resulting trusts, and release of equitable rights under the Property Law Act 1974 (Qld).

Ultimately his Honour concluded that there were too many uncertainties for the court to make the order.

His Honour remonstrated that “(e)xecutors acting reasonably in a case of this kind might be expected to secure legal advice. That occurred. Executors acting reasonably might also be expected to follow such advice. That did not occur.”31

The court further critiqued, noting the legal advice “was to ‘strongly recommend’ the pursuit of discussions…in the hope of achieving a financial settlement…This was sound advice…However, it was not in the form of any combined attempt by the executors to achieve such a settlement.”32

“The pursuit of a financial settlement with Jim, as the legal advice urged, was the estate’s most realistic chance of improving its asset pool without putting the existing pool at risk. There appears to be no explanation for the executors’ failure to properly explore such a financial settlement other than the polarising influence of their enmities and allegiances.”33

Notwithstanding the uncertainties in the estate’s material, his Honour found Jim’s case suffered its own weaknesses and as such the advice for the estate to pursue settlement negotiations was a reasonable action for it to take.34 Accordingly, the court dismissed Janette’s application.

Henry J then turned to Jim’s application to remove the Janette and Graham as joint executors and install Graham as sole executor.35 Citing that such a power “derives respectively from s6 Succession Act and s80 Trusts Act36 and s52(2) Succession Act”.37 Whilst each provision has its own criteria, the “overriding consideration is the due and proper administration of the estate”.38 Henry J found that there was disharmony amongst all siblings, pre and post-death, with particular “disputes between Janette and Graham since the assumption of the executorship, with apparently little ground ceded by either. The upshot is that there was an abject failure to distribute the estate as soon as may be and Janette and Graham were so at odds with each other that they were together incapable of advancing the administration.”39

They were particularly at odds over the whether to make an interim distribution while the issue regarding the unit was live.

 Henry J found that, while it was acceptable (and in keeping with the rule in Cherry v Boultbee)40 to withhold the interim distribution to Jim41 when the issue over the unit remained in doubt, it was unclear as to why such a distribution could not have been made to the remaining beneficiaries.

He noted that an interim distribution did eventually take place, but only after his orders in an earlier application.42 Henry J went on to detail the various complaints between each of the executors as to their failings in the conduct of the estate administration.43

Henry J rejected the assertion that “only Janette was responsible for the failure of the joint executorship”44 and that Graham failed to take an objective approach, engaging in “tit-for-tat allegation(s)”.45 With that Henry J found that the “grant of probate to Graham and Janette should be revoked and letters of administration should issue to an independent professionally administrator”.46

However, instead of making the orders immediately, Henry J opted to issue the orders, and address the question of costs at a later date.47 In taking this step his Honour granted the warring executors and quarrelsome family members a reprieve. Henry J stated that he “deliberately selected a date that far ahead in order to allow the siblings one final opportunity to avoid the need for the orders by negotiating a settlement of all their disputes in connection with the estate and its administration…Such a settlement would amply protect the executors in distributing the estate as unanimously agreed without the need for further court supervision.”48

He considered that their knowledge of his “reasons, the order which is looming and its consequent reduction of their prospective inheritances might prompt an abandonment of blame and an outbreak of pragmatism between the main protagonists”.49

There are some valuable lessons from this decision for clients and lawyers alike. They are:

  • Pay attention to the requirements of a legislative provision when preparing material in support.
  • It is one thing to be right, it is another to be economic in the pursuit of your legal rights.
  • Executors have a duty to take legal advice and heed that legal advice.
  • Joint appointments really do mean commonality of mind, with objectivity and reason prevailing.
  • Pursuing your legal rights will not necessarily achieve an immediate result at hearing.
  • If clients litigate and don’t mitigate, the judge they may aggravate!

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Should you wish to download a copy of this article please click HERE.

Notes
1 ‘Estate Contestation in Australia – An Empirical Study of a Year in Case Law’, White, Tilse, Wilson, Rosenman, Purser and Coe. UNSW Law Journal, Volume 38(3) p890, unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/38-3-15.pdf.
2 Ibid.
3 Ibid.
4 Buckingham v Buckingham [2020] QSC 230 at [72] (Buckingham).
5 For application of Rule 700A see Outram v Public Trustee of Queensland [2020] QSC 159; Pitt v Fricke [2019] QDC 193; Stojanovska v Stojanovski (No.2) [2019] QDC 198; Baker v Baker (No.2) [2019] QDC 140; Sweaney v Bailie [2017] QDC 295.
6 At [1].
7 Ibid.
8 At [21].
9 At [30].
10 At [82].
11 At [3].
12 Ibid.
13 At [7].
14 At [26]. As with all estate there were other minor matters in contention – see para [22]-[23].
15 At [25].
16 The amount of which could only be determined on identification of the true ownership of the property.
17 At [25].
18 At [27].
19 At [6].
20 At [8].
21 At [9].
22 Ibid.
23 Above [2015] QSC 372.
24 At [11].
25 Ibid.
26 At [14].
27 At[16].
28 At [17].
29 [2013] QSC 196.
30 [2015] QCA 18.
31 At [66].
32 At [71].
33 At [72].
34 At [73].
35 At [79]-[94].
36 At [79].
37 At[80].
38 At 79 citing Baldwin v Greenland [2207] 1 QdR 117.
39 At [81] – [82].
40 At [85] The rule applies where a person who has a right to share in a fund to which that person owes money; the debtor is barred from receiving an entitlement in the fund until the debt has been paid. A copy of Cherry v. Boulton can be found here: worldlii.org/int/cases/EngR/1839/1099.pdf.
41 At [85] provided sufficient funds remained in the estate to pursue the matter.
42 Ibid.
43 At [86]-[89].
44 At [92].
45 Ibid.
46 Ibid.
47 At [94].
48 Ibid.
49 Ibid.

FAMILY LAW – STILL OPEN FOR BUSINESS

We did it again!

We did it again!
July 30, 2020 /

The 2020 listing of “Leading QLD Wills & Estates Litigation Law Firms” is out and Robbins Watson Solicitors landed in the recommended list once again along with our consultant Accredited Specialist Succession Lawyer Christine Smyth as one of the “Leading QLD Wills & Estates Litigation Lawyers” of 2020.

Doyle’s Guide is an independent and highly respected international ratings agency which exclusively focusses on identifying the best in class Lawyers and  Law Firms across the range of practice areas, in Australia and in 5 other countries whose legal systems are founded on the English system of common law. 

Achieving Doyle’s guide listing is very difficult to do – and this is our 5th straight year of Doyles’ guide recognition.

Our lawyers are experts in Estate law and it shows – in the quality of representation and the quality of outcomes.  Equally importantly, however, is the fact that our team are responsive and genuinely care about our clients and the issues they face.   Our clients never have to face these difficult legal challenges alone.

Whether you are an executor trying to complete his or her obligations under a will, and wish to ensure that your actions are not subject to legal challenge, or if you are a person who is concerned that merely following the terms of the existing will lead to injustice, we have the experience and knowledge to help. Contact us today.

Associate appointed

More issues than Vogue

More issues than Vogue

More issues than Vogue
July 15, 2020 /
More issues than Vogue

I knew I was in for a difficult read when his Honour Justice Applegarth embarked on his analysis of Talbot v Boyd Legal (A Firm) & Ors [2020] QSC 185 with the observation that “[t]his complex case bristles with issues”.1

Given the numerous complexities explored across 30 pages of judgment, the subject of this column is confined to one of the issues the subject of a complex interim application for separate determination under Uniform Civil Procedure Rules (UCPR) rule 4832 – a claim for legal professional privilege in the context of 21 documents within a will instruction file.3

Briefly, Mr Talbot died in 2010 leaving a large, complex estate across a number of jurisdictions,4 administered under his probated 2002 will. The will was prepared by his long-term solicitor, Mr Boyd.

Subsequent to its completion, Mr Talbot’s affairs changed, with Mr Boyd recommending that Mr Talbot update the will. Over the course of several years Mr Boyd liaised with Mr Talbot and counsel regarding Mr Talbot’s estate planning.

In 2009 a new draft will was prepared, however further instructions were sought. In 2010, before the 2009 draft will was finalised, Mr Talbot died.5 On his death and until June 2012,6 Mr Talbot’s widow also engaged Mr Boyd in relation to issues arising from Mr Talbot’s death.

One of the issues in dispute were the terms of Mrs Talbot’s retainer with Mr Boyd and the relationship of Mr Boyd’s duties to the deceased, the executor of Mr Talbot’s will, and Mrs Talbot, insofar as they related to both the will and the new will file.7

And so on the question of whether legal professional privilege attaches to documents on a will file, his Honour distinguished instructions for a simple will where the instructions involve “implicit advice that the draft will produced in accordance with those instructions was effective to implement the client’s simple instructions”8 from those for complex estate planning, as was the case with Mr Talbot’s affairs.

“[W]hether or not documents within a will file are the subject of legal professional privilege depends upon questions of fact about the relevant retainer and the dominant purpose for which the document was created,”9 his Honour wrote. This is determined objectively10 with regard to the subjective intention of the creator of the document.11

“Legal professional privilege attaches to confidential communications made for the dominant purpose of obtaining or giving legal advice or the provision of legal services including representation in court proceedings.12

“Legal professional privilege does not attach to documents recording transactions, nor draft documents or other communications unless they expressly or by way of reasonable inference reveal the substance of the legal advice given.13

“A broad approach has been adopted in determining whether a communication is made for the purpose of obtaining or giving legal advice…legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the circumstances.14

“That approach has been followed in Australia.15

“…[D]iscourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor’s engagement and any communication from the client to the solicitor in connection with that engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled.”16

The method by which legal professional privilege may be established is by circumstance, nature of the documents or by argument.17

His Honour found that while “it may be possible in some cases to determine a question of legal professional privilege by reference to the nature of the documents, their contents and the context in which they appear in a certain file, evidence as to the circumstances in which the documents were brought into existence, including evidence of the intention of the document’s maker, or the person who authorised or procured it, is admissible”.18

And so the court found in this matter, that Mr Boyd’s evidence was essential, likely to be contentious, overlap other issues in dispute, and be required at a final hearing.19 This, of itself, was sufficient to dismiss the application.20

It should be noted that the subpoena provisions of the UCPR rules 414 and 637 were also extensively explored and practitioners would be well served in reviewing the decision for that discourse. However, section 18 and section 33Z21 of the Succession Act 1981 were not addressed because “a new will was not prepared”22 and it was not a matter where “the due execution of a will”23 was in issue.

Please also note that, at paragraph [130], the Queensland Law Society guidance note on the conduct of persons involved in the preparation of a will was mentioned but not addressed. Importantly for practitioners, at the time of publication, that QLS guidance note has been withdrawn and does not appear on the QLS website.

Ultimately, this decision demonstrates that the question of whether legal professional privilege attaches to documents within a will file is complex. On any request for such documents a careful analysis must be undertaken. The starting point for that is the broad principle that legal professional privilege is more likely to attach in relation to complex estate planning than in relation to simple will files.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Should you wish to download a copy of this article please click HERE.

Notes
1      At [4].
2      At [1].
3      See para 7. Please note the decision also involved a complex analysis of the subpoena rules, in particular rule 637 and the circumstances of when that could be invoked and whether it would be invoked.
4        At [13].
5        At[13]-[22].
6        At [23(d)].
7        At [24]—[37].
8        At [73].
9        At [36].
10       At [80].
11       At [82] citing Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6].
12        At [69] citing Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 64 [35], 73 [61].
13        At[70] citing AWB Ltd v Cole (2006) 152 FCR 382 at 417 [131] – [133].
14        At [71] citing Balabel v Air-India [1988] Ch 317 at 330.
15        At [72] citing AWB Ltd v Cole (2006) 152 FCR 382 at 406 [86] and 410 [100]; DSE (Holdings) Pty Ltd v Intertan Inc. (2003) 135 FCR 151 at 163-164 [38], 173 [71].
16        At [72] citing Andersen J Dalleagles Pty Ltd v Australian Securities Commission, (1991) 4 WAR 325 at 332-333.
17        At [76] citing Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 278 [30].
18        At [90].
19        At [91].
20        As above, also at [138]; The court also rejected other submissions made in support of the application.
21        For a discourse on the application of s33Z see Saltmer v Rennick Lawyers Pty Ltd [2018] QSC 307 in particular paragraphs [21]-[23].
22         At [130].
23         As above.

Succession law legislation update

Succession law legislation update
July 14, 2020 /

Here is a summary of COVID-related legislation permitting audio-visual witnessing of wills and enduring documents across Australia:

Queensland

COVID-19 Emergency Response—Documents And Oaths) Regulation 2020 under the COVID-19 Emergency Response Act 2020 (applicable 15 May – 31 December 2020)

See also Supreme Court Practice Direction 10 Of 2020 – Informal Wills/COVID-19 (applicable 1 March – 30 September 2020)

For wills, see Part 2, sections 6-8.

For enduring documents, see Part 3, sections 9-12.

Wills and enduring documents require one of the witnesses to be a special witness (see section 5):

  • Australian legal practitioner
  • Justice of the Peace working in law practice
  • specially approved Justice of the Peace
  • employee of Public Trustee Office.

Wills and enduring documents require a separate special witness certificate (see sections 20-21)

New South Wales

Electronic Transactions Amendment (COVID-19 Witnessing Of Documents) Regulation 2020under the Electronic Transactions Act 2000 (applicable 22 April – 23 October 2020)

For wills and enduring documents, see Part 1, sections 1-4.

No change to witness qualification

Document must have witness special endorsement, see section 2.

Victoria

COVID-19 Omnibus (Emergency Measures) (Electronic Signing And Witnessing) Regulations 2020 (applicable 12 May – 25 October 2020)

(Statutory rule as made – Statutory Rule Number 34/2020)

For wills, see p art 5, sections 39-45.

For enduring documents, see Part 4, Division 3, sections 23-26.

No change to witness qualification.

Requires witness special endorsement:

                For wills, section 4.

                For enduring documents, section 24.

South Australia

COVID-19 Emergency Response (Section 17) Regulations 2020 under the COVID-19 Emergency Response Act 2020 (applicable to gazetted date; if none, six months from date of commencement – 9 April 2020)

No remote witnessing.

Section 17 of the Act does not apply to a requirement that a person be physically present to witness the signing, execution, certification or stamping of a document or to take any oath, affirmation or declaration in relation to a document.

Tasmania

COVID-19 Disease Emergency (Miscellaneous Provisions) Act (No.2) 2020(cessation date by ministerial declaration)

No remote witnessing – not referenced.

Western Australia, Northern Territory, Australian Capital Territory – not applicable.

NOTE: None of the COVID-related legislation makes any change to witnessing requirements for Superannuation Binding Death Benefit forms as set out in Superannuation Industry (Supervision) Regulations 1994 (Cth) regulation 6.17A. Note that the trust deed for the fund governs the witnessing requirements.

On 21 May 2020, in response to the parliamentary Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee tabling its report number 34 on voluntary assisted dying, the Queensland Government referred the report to the Queensland Law Reform Commission to make further recommendations and prepare draft legislation. The commission must table its report by 1 March 2021. See the Terms Of Reference or Make A Submission.

On 19 March 2020, the Law Council of Australia provided A Submission to the Attorney-General’s Department relating to the use of enduring power of attorneys.

By a Media Release dated 15 June, the Attorney General’s Department confirmed that a national Powers of Attorney Register will be progressed at the upcoming Council of Attorneys-General meeting on 27 July.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Should you wish to download a copy of this article please click HERE.

The fourth estate & the incapacitated estate

The fourth estate & the incapacitated estate

The fourth estate & the incapacitated estate
June 3, 2020 /
The fourth estate & the incapacitated estate

Blackened pages on the broadsheet were a feature of our print news late last year.

The press protest was sparked after the Australian Federal Police raid on the ABC’s Sydney office and the home of a Canberra journalist.1 Much debate ensued and continues around laws prohibiting publication of certain material.

The Right to Know coalition called for “the decriminalisation of public interest journalism, and greater protection for the media and whistle-blowers”.2 The focus of its callout was our national security laws, with some asserting that in the last 20 years the Australian Parliament had passed a national security law every three months, with no less than 82 national security laws aimed at suppressing the release and/or publication of information.3

The press argued that these laws were used primarily by governments to shield them from embarrassing leaks or whistle-blower claims.4 However, some might be surprised to find that non-publication laws also exist in other realms, such as the substituted decision-making regime. It seems now that individuals and the media may be falling foul of those laws as well, resulting in exposure to criminal prosecution.

In Queensland broadly, section 74A of the Powers of Attorney Act 1978 and sections, 108, 109, 114(2), 210B, and 249A, Guardianship and Administration Act 2000 (GAAA) make it an offence to disclose confidential information about, or the identity of, an incapacitated person in certain circumstances.5 The provisions are significant because the degree of risk to any individual or organisation for falling foul of them is high, by virtue of the sheer number of Queenslanders and volume of their finances managed by the Public Trustee of Queensland (PTQ).

Some 9957 Queenslanders have their financial affairs managed by the PTQ, with $2.9 billion of private citizen assets under management by the PTQ.6 In the last financial year, 12,805 applications were filed in the Guardianship Tribunal.7 These staggering figures, and the nature of the issues involved, inevitably result in people being disgruntled by the processes and the organisations involved, with some viewing the media as the optimum means of ventilating their issues or influencing the tribunal. But this preference for resorting to the fourth estate8 can easily result in a breach of the law.

 

LER [2019] QCAT 4069 is one such matter. It follows a long-running series of applications before QCAT10 about the affairs of LER. The decision by Senior Member Guthrie is well considered and by necessity of the issues canvassed and the number of submissions, lengthy.11 While the decision addresses matters of standing, the authority of the tribunal to make orders, and its power to determine the application, the focus of this article is on the discussion around s114A of GAAA.

“Section 114A(1) provides that generally information about a guardianship proceeding may be published. Section 114A(2) provides, that a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public or a section of the public if the publication is likely to lead to the identification of the relevant adult by a member of the public or a section of the public to whom information is published.”12

The issue in dispute related to the publication in a newspaper of an article about the affairs of LER and the prospect of a television station publishing similar material.13 Accordingly, a non-publication order and a confidentiality order were sought.14

The newspaper “article included a photograph of LER and LER’s partner, LSS, mentioned the suburb of the city in which LER lives, as well as specific details about LER’s financial assets. The article also included the statement that LER is ‘under financial administration of the Public Trustee of Queensland’.”15

The tribunal had to determine whether s114A of the GAAA was breached by the publication of the newspaper article, if so by whom, whether it was necessary to make the orders sought and determine if the breach ought to be referred to the Commissioner of Police to prosecute.16

There were a number of adjournments to deal with procedural matters before the final hearing was resumed. In that intervening period notice was given to a range of involved parties that a finding of a breach of the law may be made and that a referral to the Commissioner of Police may also be made. Two parties, in particular, were given that notice – the publisher of the newspaper article and the journalist who authored the article.17 However, they were not in attendance at the resumed hearing,18 no submissions were made by them and at the date the decision was made, the newspaper article remained online.19

 

LSS (LER’s partner) appeared at the final hearing.

In coming to conclusions about whether s114A was breached, firstly, Senior Member Guthrie found the newspaper did publish information likely to lead to the identification of LER by a member of the public or a section of the public.20 Then the tribunal moved to determine whether publication contained “information about a guardianship proceeding”.21

Guardianship proceeding is defined in Schedule 4 of the GAAA, however the qualifier ‘information’ is not defined.

LSS argued that there was no mention in the newspaper article of words such as ‘guardianship’, ‘hearing’ or ‘QCAT’, ergo “the article does not contain information about a guardianship proceeding so there has been no breach of s114A”.22

The PTQ, Public Guardian and Public Advocate variously argued that the article clearly contained information about LER being involved in a guardianship proceeding and contained material identifying LER’s affairs, in particular his financial circumstances.23

While finding the article itself was “not a description or retelling of what occurred during the course of a…proceeding”,24 the tribunal did find it contained a substantial amount of information about matters canvassed in the hearing in which the tribunal determined to appoint the PTQ, and also at a hearing on a review of that appointment.25 Therefore it did contain “information about a guardianship proceeding”.26

 

The focus then moved to the meaning of the term ‘publish’ and how that term ought to be interpreted in the context of the GAAA.27 The tribunal adopted the “ordinary meaning of the word”28 as being “any person who caused the article to be placed on the website”.29 The tribunal found those included the journalist, Fairfax Media and LSS.30

The next element for the tribunal to determine was whether there was a reasonable excuse. The analysis of that element was the lengthiest part of the judgment, canvassed over 26 paragraphs from [62]-[88]. In those paragraphs, the tribunal reviewed previous decisions around LER, the degree to which LER lacked capacity, whether he was able to consent to participating in the interview for the article and who was responsible for providing to the journalist the minutiae of LER’s financial details.

The tribunal affirmed31 the decision of Bergmann v DAW [2010] QCA 143 “that an adult cannot make decisions for which a substitute decision-maker has been appointed”,32 Ergo, LER could not consent to the publication of the material. In finding that there was no reasonable excuse for the publication,33 the tribunal rejected “LSS’s argument that the publication of the article in terms of its criticism of the PTQ was in the public interest”.34

The tribunal then went on to decline to make the orders as it found that s114A was clear and to make orders directing the very action s114A contemplates would do nothing more than undermine S114A. The tribunal found that “[s]ection 114A…ought to have operated to protect LER’s identity and privacy. It has not done so.”35

However, that was not the end of the matter. The tribunal referred the matter to the Commissioner of Police to consider “prosecution of those who have published prohibited information, namely all of those who provided the information reported in the article to the journalist as well as all who have caused the article to be written and published online.”36

We have all encountered the client dissatisfied with the legal system who seeks to expose its flaws through the press. While caution ought to be counselled at that suggestion generally, in matters involving incapacitated adults, your client ought to be made specifically aware of the above provisions.

 

Further, practitioners ought to be aware of S7(1) ( c) and (d) of Schedule 1 the Criminal Code Act 1899 (Qld) (Criminal Code), which makes it an offence to aid another in committing an offence, and s8, which makes it an offence to prosecute a breach of the law with a common purpose. Advisers of all kind need to be alive to risk they themselves are at should they facilitate a breach of the above provisions.

From a broader public policy perspective, for some, this decision may raise questions around whether the balance is right. With limited recourse through the court process to air grievances, is the balance right when the complaint process about a particular institution is directed internally for it to self-assess?37

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Should you wish to download a copy of this article please click HERE.


Notes

abc.net.au/news/2019-10-21/media-unites-to-rally-for-press-freedom/11621806.
2 Ibid.
pressfreedom.org.au/the-war-on-journalism-3fa11cdd944f#_edn2.

4              Ibid.

 

5              Each provision proscribes a maximum fine of 200 penalty units = $26,690. See Penalties and Sentences Act 1992 Penalty Units – From 1 July 2020 increased to $133.45.

6              pt.qld.gov.au/media/1758/pt-annual-report-2018-19.pdf.

7              qcat.qld.gov.au/__data/assets/pdf_file/0019/636130/qcat-2018-19-annual-report.pdf.

8              The public press, see merriam-webster.com/dictionary/fourth%20estate.

9              Judgment delivered on 15 October, 2019, published on 30 April 2020.

10             At[1]-[3] dating back to 2013.

 

11             23 pages, submissions from the Applicant, Public Guardian, Public Trustee, Public Advocate, Interested Person and Channel 9. There were a number of technical aspects around standing of the Applicant and the authority of QCAT to make the order which are too lengthy to canvass here.

12             At [18].

13             At [5].

14             At [4].

15             At [5].

16            At[13].

 

17             At [13].

18             At [15].

19             At [26].

20             At [26]-[38].

21             At [39].

22             As above.

 

23             At [40]-[43].

24             At [48].

25             As above.

26             At [50].

27             At [52]-[61].

28             Vis the technical meaning as referred to in defamation law, see [55].

 

29             At [60].

30             At [60]-[61].

31             At [85].

32             As above.

33             At [88].

34             At [87].

 

35             At [98].

36             At [103].

37            pt.qld.gov.au/contact/contact-us/compliments-and-complaints.

QLD Government’s Regulatory Support for Commercial Tenants Affected by COVID-19

QLD Government’s Regulatory Support for Commercial Tenants Affected by COVID-19
June 2, 2020 /

By Adam Smith

In response to the Federal Government’s release of a Code of Conduct regulating commercial leases, the Queensland Government has introduced regulations under the COVID-19 Emergency Response Act 2020 to mitigate the effects of COVID-19 on affected lessors and lessees. To be eligible for protection under the act, your lease must be deemed an affected lease under the act.

What is an affected lease?

  1. Under the regulation, a lease is considered an affected lease if it meets all the following criteria:
  2. It is a retail shop lease or a lease for carrying on the business of the tenant;
  3. It was current when the regulations commenced (28 May 2020);
  4. It is a lease of a premises where the tenant carries on business or is a non-profit body in the current financial year;
  5. The tenant’s turnover was less than $50 million for the 2018-19 financial year or is likely to be under $50 million for the 2019-20 financial year;
  6. The tenant is eligible for, but not necessarily enrolled in, the JobKeeper Payment scheme.

Relief for affected Lessee:

  1. During the response period defined under the regulation (29 March to 30 September 2020), if your lease is an affected lease:
  2. You may not be evicted or have your lease terminated for non-payment of rent or outgoings;
  3. Your rent must be reduced in proportion to your lost turnover (at least 50% of the rent reduction offered must be in the form of a waiver leaving the rest to be deferred);
  4. Your rent may not be increased;
  5. You may not be penalised for reducing trading hours or not opening;
  6. Your landlord may not make a claim on a bank guarantee or security deposit for unpaid rent or outgoings.

All Prohibited Prescribed Actions of the Lessors:

  1. The full list of prescribed actions that a landlord is prohibited from taking includes:
  2. Recovery of possession;
  3. Termination of the lease;
  4. Eviction of the lessee
  5. Exercising a right of re-entry to premises;
  6. Seizure of any property, including for the purpose of securing payment of rent.
  7. Forfeiture;
  8. Damages;
  9. The payment of interest on, or a fee or charge relating to, unpaid rent or outgoings;
  10. The performance of an obligation by the lessee or another person under a guarantee under the lease;
  11. Exercising or enforcing another right by the lessor under the lease or other agreement relating to the leased premises.

Negotiation:

It is important to inform your landlord that your turnover has been affected by COVID-19 so they can apply for support. If your landlord is not aware of this, they will be unable to assist you. In order to commence negotiations with your landlord you may want to seek independent advice from either a business advisor or a legal professional (Being well established in the area of Leasing, Robbins Watson Solicitors are available to provide such advice).

Relief for Landlords:

  1. Landlords on the other hand, may also be eligible for relief:
  2. Land Tax relief for landlords – if received, must be passed on to lessee in the form of rent relief;
  3. Banking relief for landlords – may be eligible to have their loan repayments deferred by their bank. A condition of the deferral is that they cannot terminate the lease or evict the tenant for rent arrears as a result of COVID-19.

The aim of this new legislation is to work side by side with the Federal Government’s Code of Conduct for commercial leases and ensure that landlords and tenants are provided with appropriate assistance during these difficult times.

If you have any queries or concerns regarding a commercial lease, feel free to book a consultation with one of our lawyers.

Should you wish to download a copy of this article please click HERE.

COVID, capacity challenges, and costs

COVID, capacity challenges, and costs
June 2, 2020 /

Home detention gives us much to contemplate about COVID-19, nothing more so than our mortality in the face of a life­ threatening pandemic.

With that, it seems there has been a rush by the general community to make wills.2 However, the combination of section 10(3) Succession Act 1981, the uncertainty around what constitutes presence, 3 COVID-19 social distancing laws,4 and lack of available witnesses5 have conjured up circumstances in which a cauldron of conspiracies can thrive.

None more so than those around the validity of wills undertaken during this pandemic, particularly where they do not comply with the strict execution provisions. This is despite attempted innovations, such as law firm carparks becoming the site for drive-by executions6 and the Queensland Government finally passing laws to provide a limited form of witnessing by audio-visual means. 7

Unlike the general law,8 wills do not carry a presumption of mental capacity. In any probate application, the propounder of the will carries the onus of proof.9 However, where a will is rational on its face10 and duly executed,11 the presumption of capacity is in favour of the propounder.12 Where it is not duly executed, then the onus shifts back. And it is at that point we might expect the cauldron to bubble over.

However, before your client(s) toil over their troubles and rush to litigate, they might pause and reflect on the decision of The Estate of Milan Zlatevski; Geroska v Zlatevski (No.2) (2020] NSWSC 388. That matter addresses the issue of costs arising from the substantive contested probate application. 13

In the substantive matter, her Honour Henry J found the testator had testamentary capacity, granted probate of the will in solemn form and dismissed the cross claim by the deceased’s son (the defendant)14 ordering that he pay the costs of the proceedings. 15 The son, not dissuaded by his loss, then made an application to vary the costs order on the basis that his challenge to testamentary capacity was as a result of “the deceased’s conduct and it was reasonable for him to have investigated the deceased’s will”. 16

“Fair is foul, and foul is fair.”
The witches’ philosophy of life.1

The son contended that it was reasonable for him to raise the substantive challenge because of his father’s conduct. First he contended that statements made by the testator to his solicitor about various transactions were based on delusions. 17 The court rejected that contention, distinguishing between delusion and mistaken belief. 18 Second, the son contended the deceased’s action of excluding “his only son, from his estate and with whom the deceased lived with for 25 years”19 was sufficient to justify the application.

Her Honour rejected both propositions20 and dismissed his application for costs. In doing so she set out the following analysis of the law in relation to costs in probate litigation:

  1. “The general rules applicable to the award of costs apply to probate litigation, as they do to other contested litigation. This means that the Court has a broad discretion to award costs and, ordinarily, orders for costs should ‘follow the event’, with the consequence that the unsuccessful party is ordered to pay the successful party’s costs: Civil Procedure Act 2005 (NSW), s98; Uniform Civil Procedure Rules 2005 (NSW), r 42.1; Walker v Harwood (2017] NSWCA 228 at (52] per Macfarlan JA.”21
  2. “Two exceptions to the general rule that costs follow the event have been recognised to apply in probate litigation, being:  (a) where the testator has, or those interested in the residue have, been the cause of litigation, the costs of the party who unsuccessfully challenged the will may be paid out of the estate; and (b) if the circumstances reasonably called for an investigation of the will, the costs may be left to be borne by those who incurred them. See: Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709; Perpetual Trustee Co Ltd v Baker (1999] NSWCA 244 at (13]-(14]; Shorten v Shorten (No.2) (2003] NSWCA 60 at (14]-(15].”22
  3. “A case does not fall within the first exceptional category merely because a party raises a triable issue as to a deceased’s testamentary capacity: Shorten v Shorten (No.2) (2003] NSWCA 60 at [27]. “23 Relevantly, “[i]n cases where a challenge is made to testamentary capacity, more than mental frailty or the incapacity of the deceased is required to say that the testator caused the litigation and that the case falls within the first exception: King v Hudson (No.2) (2009] NSWSC 1500 at [12].”24

The son relied on the quality of the instructions given to the testator’s solicitor to evidence actions by the testator as justifying his cause to investigate. 25 He focused his submissions on the fact that the solicitor did not have a recollection of the instructions, independent of his notes, and that those notes did not record the solicitor administering a Banks v Goodfellow test, nor did the notes identify the solicitor adhering to ‘best practice’ in taking the instructions.26

On these points the court observed that there was no medical nor lay evidence of lack of capacity, no prior competing will, nor issues raising doubt as to the testator’s capacity.27 In fact, the court found that the solicitor’s will notes were integral to assisting the court in coming to a view that the testator had capacity. 28 The detail in the notes and the cogency of the explanations recorded “demonstrated the deceased’s testamentary capacity, rather than providing a reason for investigation of the will on that basis”.29 Ultimately, the son’s challenge to the will was founded in the fairness or otherwise of the terms of the will”‘ and he paid the costs for that exercise.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law)- Old, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Notes

  1. William Shakespeare. Macbeth.
  2. abc.net.au/ne,.ys/2020-04-18/coronavirus-wills­finances/12155576.
  3. Refer to my article in the May edition of Proctor, page 44.
  4. health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/how-to-protect-yourself-and­others-from-coronavirus-covid-19/social-distancing­-for-coronavirus-covid-19.
  5. qld.gov.au/law/legal-mediation-and-Iustice-of-the­peace/about-justice-of-the-peace/search-for-your­nearest-jp-or-cdec.
  6. ctpost.com/local/article/Attorneys-offer-drive-up-legal­-servicce-for-15180636.php.
  7. parliament.qld.gov.au/documents/tableOffice/TabledPapers/2020/5620T636.pdf. see section 9 and legislation.qld.gov.au/view/html/asmade/sl-2020-0072.
  8. Gibbons v Wright [1954] HCA 17: 919540 91 CLR 423
  9. Bailey v Bailey [1924] HCA 21. (1924) 34 CLR 558, 570-572. Re Hodges; Shorter v Rogers (1988) 14 NSWLR 698. 704-707: Worth v Clashom [1952] HCA 67: (1952) 86 CLR 439. 453.
  10. Gomall v Masen (1887) 12 PD 142; Bailey v Bailey [1924] HCA 21. (1924) 34 CLR 558; Bull v Fulton [1942] HCA 13: Fisher v Kay (2010) WASC 160, (83): Tobin v Ezekiel (2012) NSWCA 285: (2012) 83 NSWLR 757, [44]-[45]: Veall v Veall (2015) WSCA 60. (168); Power v Smart [2018] WASC 168, (6041 The Public Trustee v Nezmeskal (2018) WASC 393. (44).
  11. Wheatley v Edgar (2003) WASC 118; Wade v Frost (2014) SASC 162: Tsagouris v Bellairs (2010) SASC 147
  12. Shorten v Shorten [2002] NSWSCA 73. [54].
  13. The Estate of Milan Zlatevski; Geroska v Zlatevski (2020) NSWSC 250.
  14. At [2].
  15. At [3].
  16. At [4].
  17. At [11].
  18. See The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250 at [17], [35], [81] ,[83], [112]-[148]. 19 At[12].
  19. At[13).
  20. At [7]; for Queensland, the applicable rule IS 681(1) of the Uniform Civil Procedure Rules 1999.
  21. At [8].
  22. At [9].
  23. At [9].
  24. At [11].
  25. At [20]-[22].
  26. At [20]-[28].
  27. At [16]-[18] also at [28]-[29].
  28. At [28].
  29. At [32].

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pleasant surprise from a grateful client