Scerri stuff … Yarraside Supremo rebukes lawyers in over-egged intestacy case … Costs outrun the issues … Barrister contradicts himself … Lawyers sent to the Bureau de Spank … Seb Tonkin courtside   

VICTORIAN Supreme Court Justice Michael McDonald has criticised both sides in an intestacy battle where costs dwarfed the sum in dispute. He referred a barrister and firm of solicitors to the Legal Services Commissioner for investigation.

Re Manlio concerned a claim by Maria Scerri, seeking distribution from the estate of Romano Manlio, who died intestate in November 2011. Scerri claimed to have been Manlio’s unregistered domestic partner at the time of his death. 

To make out her claim, Scerri needed to prove that the two had lived together for at least two years prior to Manlio’s death. Evidence of those living arrangements was the main dispute at trial – with some 21 affidavits filed for and against Scerri’s account. 

Justice McDonald described the accounts on each side as “utterly irreconcilable” and, with credit an obvious issue, ordered that all evidence would be presented viva voce.

In the seven-day trial, which commenced in August 2015, Scerri’s barrister, Russell Young, opened with claims that Scerri had slept at Manlio’s Delahey property seven nights a week for two years prior to his death; that Scerri’s own Burnside property was for all intents and purposes vacant during that time; and that the two had lived essentially as a married couple, engaged since August 2010.

At the close of the trial, Young contended instead that Scerri and Manlio had not lived together at all in the six months prior to Manlio’s death – contradicting both his opening and the affidavit and oral evidence of his client and her daughter.

Justice McDonald delivered the primary judgment in December last year, finding that Manlio had been living with a new partner, Catherine Vella, before his death, and dismissing Scerri’s claim. 

Raising questions about the conduct of the case, McDonald directed Young and his instructors, Zeljko Stojakovic, to make submissions as to why they should be allowed to recover any costs at all from their client. 

Following an exchange of submissions (including material from Young described as “regrettably tendentious”), the court acted on its own motion to investigate whether there had been breaches of the Civil Procedure Act, and last week Justice McDonald delivered his findings in Re Manlio (No 2).

The overarching obligations in the CPA apply to parties, law practices, and practitioners. They include a paramount duty to further the administration of justice, and obligations to act honestly and not mislead or deceive. Under s.29, if satisfied a breach has occurred, the court can make any order it sees fit.  

There were cogent reasons in this case for the court to act on its own motion, beyond Young’s submissions at trial. Scerri’s claim, if successful, would have been worth around $100,000. The total costs on both sides exceeded $200,000, including nearly $120,000 in counsels’ fees. 

Justice McDonald noted that “[a]ny 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”. 

Scerri’s only source of income was a single parent’s pension, and the court found she was “a person of limited intellectual capacity and literacy skills”. 

Ultimately, the judge was not satisfied, to the high standard required, that Young had breached the CPA. However, he found that a referral to the Legal Services Commissioner was justified because Young had: 

• Been apparently unaware of important affidavit evidence from his own client; 
• Invited the court, in closing, to reject his own client’s evidence on a critical issue; and 
• Cross-examined a witness on a basis inconsistent with his own client’s evidence.

Young’s instructors Zeljko Stojakovic also were criticised and referred to the commissioner. Mr Le, a solicitor employed by the firm, had claimed not to have been aware of matters undermining Scerri’s claim, despite the fact that affidavits referring to those matters were filed months earlier.

The other side of the case did not escape scrutiny either. Lisa Stagliano, the administrator of Manlio’s estate and mother of his child, was found to have breached s.21 of the CPA herself by signalling to her son while he was in the witness box.  

Justice McDonald also considered whether Stagliano had instructed her barrister, Richard Antill, to cross-examine Scerri on a basis she knew to be false. The judge ultimately was unable to make that finding on the evidence. Despite her “serious transgression”, Justice McDonald declined to make any orders against Stagliano, citing the adverse impact it would have on her son.

Justice McDonald ordered Scerri to pay the costs of the primary proceedings (which he described as excessive), and the parties to bear their own costs of the conduct inquiry. Manlio’s estate will likely bear most of the burden.