In Re Manlio (No 2) [2016] VSC 130 Justice MacDonald took quite serious action under powers under the Civil Procedure Act 2010 (the “CPA”) with significant consequences for a counsel involved in the case. This decision relates to the conduct of the legal representatives, not the substantive case itself. That decision was handed down on 21 December 2015 in Re Manlio [2015] VSC 733.

It is a particularly informative decision as to the scope and operation of the CPA in regulating counsel’s conduct during the course of a trial.

FACTS

The Court undertook a very detailed and long review of the evidence, in particular counsel’s conduct in the conduct of the trial.

His Honour stated, at [10] – [12]  counsel for the Plaintiff, had contravened s 18(d) of the CPA by making an opening submission which did not have a proper factual basis as it was inconsistent with the Plaintiff’s, Ms Scerri evidence. It went further than that,  Ms Scerri gave evidence, contrary to Mr Young’s opening submission. The question was whether counsel’s closing submissions were inconsistent with his instructions.

Ms Scerri’s primary claim for a distribution from Mr Manlio’s estate was worth approximately $100,000. The parties  filed 21 affidavits which provided totally irreconcilable accounts of the living arrangements between Mr Manlio and Ms Scerri.  Affidavits filed by the solicitors for Ms Scerri and Ms Stagliano on 12 February 2016 disclose that the plaintiff has incurred costs of $136,041.38 (including counsel’s fees of $72,600) and the defendant has incurred costs of $87,728 (including counsel’s fees of $47,080) [18].

Ms Scerri was found to be a a person of:

• very limited financial means, with her sole source of income being a single parent’s pension with a significant mortgage over her Burnside property as a consequence of loans which she advanced to Mr Manlio’s company which have not been fully repaid
• a person of limited intellectual capacity and literacy skills.

DECISION

The court stated that:

• Section 29(1) of the CPA provides that if a court is satisfied that, on the balance of probabilities, a person has contravened an overarching obligation, the court may make any order it considers appropriate in the interests of justice.
• Section 29(2)(b) of the CPA provides that an order may be made on the court’s own motion.

• Any practitioner representing a client in proceedings in the Supreme Court of Victoria where the legal costs are disproportionate to the quantum of the claim should expect their conduct to come under very close scrutiny. The parties and their legal representatives will be held to account [18].

• Section 16 of the CPA provides that each person subject to the overarching obligations has a paramount duty to the Court to further the administration of justice in relation to any civil proceeding in which that person is involved [25].
• In any contested proceeding, counsel’s opening submissions are of critical importance in identifying the issues in dispute. It sets the parameters for the evidence to be led and the factual and legal issues which fall for determination. The administration of justice is undermined if counsel’s opening submission does not clearly identify the legal and factual questions which fall for determination [25]. There may be circumstances justifying a barrister departing from his or her opening submissions such as where Counsel foreshadows in opening that witnesses called in support will give certain evidence but the foreshadowed evidence is not given.  In that event counsel’s final submissions will need to reflect any relevant change [67].

The court noted that :

• Mr Young’s”argumentative” written submissions was inconsistent with his submissions during the trial [21]
• the discrepancy between Mr Young’s opening submission, the evidence given by Ms Scerri and her daughter and Mr Young’s closing submission, raised a question as to whether he breached his paramount duty to the Court including the potential application of ss 18, 19, 23 and 24 of the CPA  [27].
• inference can be drawn that Mr Young’s submissions were inconsistent with instructions he had received from the client [28] & [36]
• Mr Young’s state of preparedness to conduct the trial was inadequate resulting in unnecessary time being spent on questions which should not have been an issue.

When conducting an inquiry under section 29 of the CPA the Court is not limited to the evidence which has been admitted during the earlier proceedings (see Yara Australia Pty Ltd v Oswal).   In that context the affidavits filed were relevant to the Court’s inquiry.

While the court found that Mr Young’s submissions do not meaningfully address the issue of whether his conduct constituted a breach of any of the overarching obligations imposed upon him by the CPA, in particular whether there was a proper basis for the Court to infer that he made submissions contrary to his instructions it was not satisfied to the requisite Briginshaw standard that he breached his paramount duty to the Court and/or overarching obligations arising under the CPA [76]. That said the court found it was strongly arguable that counsel’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. In that context the conduct would constitute unsatisfactory professional conduct as defined in s 296 of Schedule 1 to the Legal Profession Uniform Law Application Act 2014 because, at [79]:

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

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

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

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

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

The court directed the Prothonotary of the Supreme Court of Victoria to forward to the Commissioner:

a) a copy of the principal judgment;

(b) a copy of this judgment; and

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

The court also found/observed that:

• Ms Scerri’s solicitors, Zeljko Stojakovic is referred to the Commissioner because her conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer [80].
• Mr Antill’s submission that offers of compromise were made on the first day of the hearing was not correct [97]
• Mr Antill’s submisson that Ms Scerri’s application for a declaration that she was Mr Manlio’s unregistered domestic partner was entirely without any factual or legal basis was rejected. Simply instituting or maintaining a proceeding which has little prospect of success will not warrant the making of an indemnity costs order [98]
• the Estate will have to bear the difference between the $146,041 costs which have been incurred and the amount which can be recouped on a standard basis. The plaintiff’s costs of $146,041 are almost $60,000 more than the $87,728 incurred by Ms Scerri. At face value, the fees of both Mr Antill and his instructing solicitors appear to be excessive [99].

ISSUE

The Civil Procedure Act 2010 is now a well established part of litigation management.  It informs the everyday conduct of both interlocutory applications and substantive hearings.  The Act has been used to review the conduct of counsel previously but not to the extraordinary detail as in this proceeding.