‘Obstinate’ solicitor hit with 80% of costs

In Re Morgan, the Victorian Supreme Court emphasised the overarching obligations imposed on parties and practitioners to “use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate”.¹

While this case concerns a Victorian practitioner’s obligations under the Civil Procedure Act,² the decision provides valuable guidance to Queensland practitioners for the somewhat analogous provisions contained in the Uniform Civil Procedure Rules⁴ and the Australian Solicitors’ Conduct Rules.⁴

Background

The defendant was the father and sole beneficiary of the deceased’s estate, and the plaintiff was the deceased’s brother. The brother consulted with a legal practitioner and subsequently made an application for provision from his sister’s estate on the basis that he was a member of the common household of the deceased and was living with her at the time of her death.⁵

The plaintiff died impecunious before the proceedings could be resolved and the proposed administrator of his estate indicated to the plaintiff’s solicitor that they did not wish to pursue the family provision application. The plaintiff’s solicitor then filed a notice of ceasing to act.

Notwithstanding the death of the plaintiff and the filing of notice ceasing to act, the court considered that the costs of the application required determination. To that end, the plaintiff’s solicitor was then joined as a non-party on the court’s own motion. It was considered that the high quantum of costs incurred by both parties during proceedings was largely a result of the plaintiff’s solicitor who had arguably contravened her overarching obligations.

Conduct of the plaintiff’s solicitor

In view of the conduct of the parties throughout the proceeding, the court raised concerns of the plaintiff’s solicitor to include:

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• the filing of affidavits containing substantial irrelevant and inadmissible information, including without prejudice communications
• misguided preoccupation in communications with matters of limited relevance such as an unsigned will and invalid superannuation death benefit nomination form
• the needlessly obstinate approach to the preparation of the joint trial document
• incurring of costs far in excess of what would be expected given the stage of proceedings, and
• the inadequate, multiple responses to the court’s own motion inquiry.⁶

The court also acknowledged the following conduct of the solicitor which, while not amounting to breaches of her overarching obligations, reflected the undesirable character of proceedings:

• failure to file required documents leading to the court’s postponement of a first directions hearing
• delay in informing the court of the plaintiff’s death, and
• the inappropriate communication with the court.⁷

While the solicitor stressed that she was a general practitioner and not an expert in the law of wills and estates, the court acknowledged that any inexperience in the area did not itself excuse her of compliance with her overarching obligations.⁸

Conclusion

The conduct of the plaintiff’s solicitor had resulted in the wasting of both the court and the defendant’s time and resources. Her failure to address the court’s concerns in a timely and appropriate manner, despite being given significant latitude, was considered to fall well below the standard expected of practitioners.⁹ Such conduct warranted a costs order with both compensatory and punitive elements.

The court made the following orders:

• the plaintiff’s solicitor and her legal practice, pay 80% of the defendant’s costs, assessed on an indemnity basis in default of agreement
• no orders as to the plaintiff’s costs of the proceedings, and
• the family provision proceeding be dismissed.¹⁰

Judy Hayward is a Special Counsel with the Queensland Law Society Ethics and Practice Centre. Sarah Millar is a law clerk at the centre.

* Re Morgan [2023] VSC 133, [131] (Re Morgan).
Footnotes
¹ Ibid [79].
² Civil Procedure Act 2010 (Vic.), s18(d), 19, 20, 23, 24.
³ Uniform Civil Procedure Rules 1999 (Qld) r5.
⁴ Australian Solicitors’ Conduct Rules, r3-6. See also, Supreme Court of Queensland, Practice Note No.1 of 2023: Commercial List, 30 January 2023.
⁵ Re Morgan [24].
⁶ Ibid [150].
⁷ Ibid [151].
⁸ Ibid [133].
⁹ Ibid [137].
¹⁰ Ibid [161].

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