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- Unreported Judgment
Baker v Baker (No. 2) QDC 140
DISTRICT COURT OF QUEENSLAND
Baker v Baker (No 2)  QDC 140
KENNETH NOEL BAKER
MARK KENNETH BAKER
WAYNE NOEL BAKER and HAYDEN KENNETH BAKER as executors of the will of GWENDA DAWN BAKER (deceased)
Family provision application - costs
District Court at Brisbane
14 June 2019
14 June 2019
Judge McGill SC
Order by consent that the costs of the applicants fixed at $[figure] be paid out of the estate of the deceased. Order that the costs of the respondents, excluding the costs in respect of the preparation, filing and service of [five specified affidavits], on the standard basis, be paid out of the estate of the deceased.
TESTATOR’S FAMILY MAINTENANCE – Application of spouse and adult son – estate to other son and grandson – small estate – costs – litigation not conducted efficiently – issues not confined – executors’ costs limited.
Succession Act 1981 s 41.
UCPR r 700A.
Sweaney v Bailie  QDC 295 – followed.
RD Williams for the applicants
AM Laylee for the respondents
James and Co Lawyers for the applicants
CSG Law for the respondents
- In this matter there was a family provision application tried in early April 2019 before me. Last week, on 7 June, I delivered a reserved judgment, but left the question of the costs of the parties to the proceeding for further submissions. There were a number of matters which concerned me about the way the proceedings had been carried on. These were discussed over several paragraphs of my previous judgment, and I do not propose to repeat them here.
- The position in relation to the costs of family provision applications was discussed by another Judge of this Court in the matter of Sweaney v Bailie  QDC 295, from paragraph . I think it is sufficient for present purposes to say that I entirely agree with everything that was said in those reasons about the legal position, and in particular, I agree with the proposition that rule 700A of the Uniform Civil Procedure Rules applies to both parties, or, if necessary, all parties, in relation to family provision litigation
- The submissions for the applicant draw attention to a proposition in a textbook that in family provision proceedings, the general rules as to assessment do not apply, and that an applicant is entitled to a complete indemnity for costs, and a personal representative is entitled to costs on the indemnity basis. I have not actually looked at the book, but if that is the effect of what is said in that textbook, in my view that statement is quite wrong. There is no reason why the ordinary rules about assessment of costs in the UCPR would not apply to any costs ordered to be paid in favour of an applicant, and it is also the case that there is no automatic entitlement to costs, even on the standard basis, in accordance with the rules, in the case of an applicant.
- The position is similar in relation to a respondent. The legal position of respondents was discussed in that matter of Sweaney v Bailie, in a way with which I respectfully agree. Indeed, the whole point of rule 700A was to bury the idea that parties could engage in litigation under the Succession Act 1981 s 41, on the assumption that everybody’s costs on an indemnity basis would be paid out of the estate, more or less regardless of the outcome.
- If that ever represented at least a practical description of the situation with such litigation in Queensland, those days are well and truly gone. The position, in my view, is that, particularly in smaller estates, there is a particular obligation on the parties to litigate efficiently and to minimise the costs of that litigation, and the function of rule 700A is to permit the courts to penalise parties that litigate extravagantly or inefficiently. The smaller the estate, the more important it is that the costs of the proceeding be minimised. Otherwise, a situation can easily arise where the estate will be consumed simply by the costs of litigation.
- Given that family provision applications frequently reflect profound and deep-seated divisions within families, it is perhaps not entirely surprising that sometimes the parties themselves might prefer the estate to be consumed in legal costs, rather than be passed to those other members of the family with whom they disagree, or with whom they are in dispute. But there is an obligation, in my view, on the legal practitioners involved, nevertheless to ensure that the litigation is conducted efficiently, and the requirements of rule 700A are to be applied, even if the parties are enthusiastic in fighting tooth and nail over every little point.
- I think this was a good example, as will be apparent from my reasons for judgment, of litigation where that did not occur. This was not, by any means, confined to the conduct of the respondents in the litigation and their lawyers. But in circumstances where the respondents are willing to consent to the orders sought by the applicants in relation to their costs, I am not proposing to go any further in relation to the question of what should happen with the applicant’s costs. It does seem to me, however, that there was a degree of failure to comply with the requirements of the rules, and some degree of inefficiency, on the part of the applicants, as well, in this matter. One aspect of that was that there were times when I think unrealistically short time limits were placed on the respondents in the correspondence. There was certainly a great deal of acrimonious correspondence between the parties about matters such as disclosure.
- One aspect of the matter that annoyed me was that the material failed to distinguish between the disclosure of material to the other party – which can be done quite cheaply, just by sending a copy to them – and exhibiting material to affidavits filed in the Court. There is no reason why disclosure needs to be done by exhibiting all of the documents provided, in response to a request from the other side, to an affidavit. In the present case, it occurred, to some extent, because a directions order provided that it occur; but the directions order provided that because that was the terms of the order the parties consented to. That was an unnecessary and, in my view, inappropriate direction anyway, when the only objective was to obtain disclosure of the material sought. Whether that material ultimately proved to be of some relevance to the issues at the trial could only be determined after it had been disclosed, and at that point, it becomes a matter for the parties to decide what, if any, of that material is appropriately put before the Court, by way of affidavit. There were some other particular criticisms of the affidavits in my earlier reasons, which I need not repeat. This, I think, was something which was lost sight of in this litigation.
- Apart from that, there was a good deal of material put forward by the respondents, after that order was made and by consent, which was filed in breach of that order. The explanation for this was that it was required in order to deal with issues which have been disclosed in the course of a mediation between the parties, but the mediation took place on 22 March 2018, and the directions order was consented to on 11 May 2018. If the respondents were of the view that there was additional evidence which needed to be put before the Court, in the light of issues raised at the mediation, they had almost two months to do that before the directions order was consented to, and they consented to an order which effectively excluded any further evidence in chief, in relation to those matters. In those circumstances, in my view, they are just not justified in placing evidence in that category before the Court. It is true that the affidavits filed on 11 June, or one of the affidavits filed on 11 June 2018, contained material which did come within the terms of the directions order of 11 May, but it contained a good deal of material which did not.
- One of the matters that I was favoured with, in exhibits to affidavits read on the hearing of the application, was the course of correspondence between the parties in which they were negotiating the terms of the draft order for directions, which was ultimately made by consent. The relevance of that to what I have to decide entirely escapes me, except, I suppose, as demonstrating that there was affidavit material put before the Court, in relation to the hearing, which was unnecessary and inappropriate, and in that sense being relevant, to a minor degree, to the question of costs.
- Another matter which particularly annoyed me was the fact that the same documents appeared twice, or sometimes more than twice, in the course of successive affidavits, and that was also in breach of the requirement of the rules. Overall, it seems to me that there is a good deal to criticise in relation to the conduct of the litigation in this matter, and I am satisfied that it cannot be said that, generally, the conduct of the litigation by the respondents has been proper, and that the costs of the respondents of conducting the litigation have been all properly and reasonably incurred.
- Given that the question of making an order for costs, whether costs are paid out of an estate, is a matter which is appropriately dealt with by a Court dealing with the costs of the respondents to an application for family provision, in my view, that is something which is before me, and therefore a factor that I can properly take into account in making an order in relation to the respondents’ costs. Now, the respondents as personal representatives in practice should not be approaching litigation of this nature on the basis that as personal representatives they have an entitlement to all of their costs on an indemnity basis out of the estate regardless of how the litigation is conducted. That is not the law and, in my view, it is not the way in which the rules should be applied. It is certainly not the way in which rule 700A should be applied.
- In my view, there have been in a number of respects serious failures on the part of the respondents in the conduct of the litigation, and there are a number of matters, as I have mentioned in my earlier reasons, where there have been features involving their conduct of the litigation which are relevant matters, or matters made relevant under rule 700A. In particular, there were five affidavits, court documents 6, 7, 36, 37 and 38, which were sufficiently inappropriate that, in my view, no costs should be allowed in respect of them.
- The initial affidavits of the respondents in the proceeding failed to comply with the requirements of the practice direction dealing with the disclosure of the respondents’ financial positions, and also contained large amounts of hearsay. The affidavit of Wayne Baker filed on 11 June contained material which was filed in breach of the directions order and contained a good deal of material which was either duplicating earlier material, or which was irrelevant for an affidavit.
- The affidavits of Diane Baker filed that day, and Allison Slater filed on 25 June, contained hearsay, except perhaps to the extent that they were indirectly of some relevance in relation to the intention of the deceased, but in relation to that issue clearly involved unwarranted attention to a minor or peripheral issue and, indeed, probably the litigation of an unmeritorious issue. That is apparent from the way in which I have treated the attitude of the deceased to her husband in my previous reasons for judgment. No costs should be allowed, in my view, in relation to those five affidavits.
- Apart from that, I think the appropriate way without seeking to complicate the issue by dissecting the matter and dissecting the individual affidavits, and dissecting the individual correspondence to the extent that I have looked at that, is to adopt a broad-brush approach and simply order that the respondents’ costs on a standard basis be paid from the deceased’s estate. I do not need to refer to those costs being assessed and, indeed, the effect of making an order in relation to costs is that they are assessed costs, but it is open to the respondents to compromise that amount as to quantum. What the respondents do in relation to the position between them and their lawyers is a matter for them.
- So I propose then to make an order in terms of paragraphs 1 and 2 of the draft order, except that I think that it is sufficient to say that the costs of the proceeding, including the costs reserved on that day, fixed in that amount be paid from the estate. I do not need to refer to the fact that the costs are on the indemnity basis because they have been fixed. The respondents do not oppose an order in terms of paragraph 2 of the affidavit. I will cross out paragraph (b) on the draft order, and simply say that the respondents’ costs of the proceeding excluding the costs in respect of the preparation, filing and service of those five affidavits, on the standard basis be paid from the deceased’s estate. So that will be the terms of the order.
- I think it is important that family provision applications, if they do come to be litigated, be litigated efficiently and that costs be kept to a minimum, particularly in small estates. It seems to me that the whole purpose of rule 700A is to enable the Courts, by making costs orders in individual cases, to provide the sort of incentive which the legal profession obviously needs to encourage that approach to such matters.
- My attitude to costs in family provision applications may be becoming irrelevant given that I am retiring shortly, and there is every prospect that this will be the last contested family provision application that comes before me. However, I know both from the reasons in Sweaney v Bailie, and from conversations with various of my colleagues, that there are a number of much younger Judges than I am on this Court who also have firm views about family provision applications being litigated efficiently, and who are likely to be on this Court for quite some time in the future. This is, therefore, a matter which I think the profession needs to address. So there will be an order in relation to costs in terms of the draft with the amendments that I have indicated.
 De Groot and Nickel, Family Provision in Australia, (5th Ed, 2017).
- Published Case Name:
Baker v Baker (No. 2)
- Shortened Case Name:
Baker v Baker (No. 2)
 QDC 140
14 Jun 2019