Supremes in Victoria and NSW make costs orders against solicitors for their misconduct in litigation … Watershed moments … Inappropriate and scandalous material … False allegations … Referral to the Law Society … Emilie Lentz reports
MELBOURNE solicitor Joseph Guss is back in the law reports with a new round of stellar courtroom manoeuvres.
In spite of his sorry history, Gussy was up to his old tricks in the Supreme Court of Victoria before Justice Kate McMillan, representing his son Antony in a case about a contested family will.
The plaintiff, Simon Brown, is the son of Neridah Brown, the deceased. The validity of three of her wills was the subject of contention.
Antony Guss is a grandson of the deceased, so Simon Brown must be his uncle and brother-in-law to Joe Guss.
Joseph Guss was a non-party, and while acting as lawyer for his son also had an interest in the outcome because his son and daughter could gain financially from the will of Nana Neridah.
For this reason, Guss argued that the last will in April 2010 had been created as a result of undue influence by Simon Brown. Joseph Guss and Brown had a history of ill-will and the court found that these proceedings were little more than opportunity for Guss to “ventilate long held grievances and complaints” concerning Simon Brown and his son
At the end of the trial, Brown sought an order that a costs order made against him on May 23, 2013 be set aside. He also sought costs of the proceeding against Antony Guss and his solicitor, Joe Guss.
McMillan set aside the May 2013 costs order, and instead ordered that Antony and Joseph Guss pay Brown’s costs of the proceedings on an indemnity basis, to be taxed in default of agreement.
Joseph Guss caused delay in the proceedings through unnecessarily lengthy cross-examination, also he agreed he was ready for trial on May 29, 2013, but then sought extensive further discovery on July 29, 2013 and served further affidavits.
The court found that the January 2010 will of Nerida Brown had been produced as a result of Antony Guss’ undue influence and that he had no grounds to challenge the 2007 or April 2010 wills.
The court found the approach of A. Guss in these proceedings to be adversarial rather than inquisitorial, seeking to ventilate long held grievances and benefit himself and his sister financially.
The court also found that the evidence supplied by Guss’s witnesses, most of whom were family members, was the result of collusion orchestrated by Joseph Guss and was therefore not credible.
The affidavits filed by Guss also contained much inadmissible evidence.
Furthermore, on January 27, 2010, on realising a deal could not be “done” on Nerida’s will, A. Guss told the deceased that, “it doesn’t matter what you put in your will, Nan. My Dad’s a solicitor and we’ll appeal against it and he always wins”.
The January 2010 will was found to bear “all of the hallmarks of Antony Guss wanting a document in place so that he has a negotiating tool”.
The court exercised its special discretion to award costs on an indemnity basis. McMillan relied on the rule in Ugly Tribe that, “the making of an allegation, known to be false” warrants a special costs order.
Having breached his overarching obligations under the Civil Procedure Act to act honestly (s.17), to only bring claims on a proper basis (s.18) and not mislead or deceive (s.21), the court ordered that the Gusses – father and son, solicitor and client – pay Brown’s costs on an indemnity basis.
See: Sue, Weave & Duck, where Barry Lane reported in 2006 on Joe’s history of zealous litigation and lack of credibility as a witness.
SYDNEY solicitor Shane Neagle went about a costs application in such an inappropriate manner as to land him with an adverse costs order and a referral to the Law Society of New South Wales in relation to misconduct.
The case in which Neagle was originally involved was one of undue influence. A deed had been executed between Peter and Helen Walton on one hand and Lillian Walton on the other, in which Lillian forgave “any debt owing by Peter and Helen to her”.
It was claimed that the Lillian was induced to create the deed by the undue influence and conduct of Peter and Helen Walton. Neagle was the solicitor for the plaintiff, Lynda Walton, who brought the case as a representative of Lillian’s estate.
The plaintiff failed to satisfy the court that the execution of the deed was brought about by Helen and Peter’s undue influence.
On March 25, Neagle filed and delivered to the chambers of Justice James Stevenson “a lever-arch binder holding some 450 pages of documents including 19 pages of submissions, a 103 paragraph affidavit sworn by Mr Neagle, together with affadavits sworn by the plaintiff, her sister Ms Robyn Walton and Ms Elizabeth Atkinson”.
The evidence in this binder was found by Stevenson to be, “almost entirely irrelevant to the question of costs, was inappropriate and, in some parts, little short of scandalous”.
The documents included details of personal history between Neagle and the defendant’s solicitor.
Neagle argued that costs should not follow the event and submitted that the defendants conducted proceedings with a “lack of transparency” in their affidavits and other misconduct. Most of the material included in Neagle’s submissions was wholly irrelevant to the question of costs and the court found the allegations to be unfounded. There was no lack of transparency by the defendant.
In the affidavit accompanying the costs application, Neagle contended, among other largely irrelevant and inadmissible things, that the plaintiff had mental health issues and that the defendant’s solicitor had acted belligerently due to the outcome of a previous case, which “had not been forgotten”.
The nature of the costs application made by Neagle and the accompanying affidavit was sufficient for Stevenson to conclude that costs incurred by the plaintiff were the result of Neagle’s own “serious incompetence or serious misconduct”.
Furthermore, these costs were improper and without reasonable cause in circumstances for which he was responsible – s.99 of the Civil Procedure Act.
The judge ordered that Neagle make submissions as to why he ought not be ordered to pay the plaintiff’s costs to the defendant and why he should not be referred to the Law Society of New South Wales to see whether professional misconduct was an issue. The submissions Neagle filed were reviewed by the court on April 13.
He submitted that he did not oppose the adverse costs orders against him, pursuant to the Civil Procedure Act, for costs caused by the costs application he filed.
He did, however, submit that he should not be referred to the Law Society for investigation about professional misconduct.
Neagle said he accepted that his conduct has been “disgraceful” and apologised to the court and to the defendant’s solicitor.
Neagle asserted that in light of this “watershed moment” in his professional life, he had decided to take extended leave to review his practice and had resolved to never again accept “emotionally charged work”.
Michael McHugh, for Neagle, argued that he was contrite and that this negated the likelihood of recurrence of such conduct.
He argued that that Neagle would be being sufficiently punished without referral and that the policy goals of referral – protection of the public – were already adequately met.
Justice Stevenson rejecting that submission on the basis that it was not for him to decide professional misconduct. That was a task for the law society.
He said that Neagle’s conduct was sufficiently below the required standard of professional conduct to warrant investigation.
For this reason he did send Neagle to the Bureau de Spank at the Law Society to see if further steps were appropriate.
Given that Neagle did not oppose the costs order against him, his required contribution was lowered to 90 percent.