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Adrian Corbould: I’ve got good news and I’ve got bad news, Smyth orders.

Hello, I’m Adrian Corbould, Accredited Specialist in Wills & Estates at Turnbull Hill Lawyers where I talk about contested wills and estates generally.

Litigation in contested estates happens all the time. At the very beginning of a matter, if you are making a claim or defending a claim, your lawyer, such as me, would give you an estimate as to what’s the likely possible best outcome and what’s the likely possible worst outcome. That estimate is given at the very beginning where not all the evidence is to hand. You might not know the evidence that the other side is going to serve or witnesses may not have come out. It’s very general off the cuff.

With litigation, not one size fits all. It’s as the matter progresses up to the date of hearing. What starts out as a guppy might end up as a whale. That may not have been foreseeable at the very beginning. However, during the progress of a matter, there might be a dozen witnesses. There might be subpoenas on a dozen banks and all this material comes out and it’s starting to look very unwieldy as to cost outcomes.

You’ve probably seen in news articles and on TV, they’ll say, “Celebrity, Rebel Wilson gets this result plus costs,” or “has lost and has to pay the other side’s costs.” Often, they won’t say what the costs are. They’ll just say what the award amount is. The costs side can be very substantial. $100,000 or more depending on how long the case has gone. Now, that can be the big pain for a party. Generally, the loser has to pay the winner’s costs most of the time.

Why this is relevant in Smyth orders, which is what this video is about, is during the progress of the matter, it’s not legal proceedings are commenced and then a week later or like on TV, half an hour later, there’s a court hearing. There’s a lot of steps in between and they have directions hearings where the judge or the registrar keeps a finger on the pulse of what’s going on. How many affidavits are being served? What subpoenas are being served? What material is to hand? Has there been settlement negotiations and if they haven’t resolved, it’s going to have to head to a hearing. How many days hearing is that going to be? It’s going to be a five-day hearing of what originally was going to be thought to be a one-day hearing.

That’s a huge difference because the Supreme Court is funded by taxpayers and it has limited resources. There’s only so many judges. On each day of hearing, there has to be one Supreme Court Judge, the Judge’s Associate, the Judge’s Tipstaff, the Stenographer, who types up what is said, the Court Officer. You’ve got five people all taxpayer-funded, very expensive. They cannot be hearing every single case that’s filed. The court’s main aim is to try and– if the parties can resolve the matter between themselves, fantastic. They only hear the matters that have to be heard.

If a judge or a registrar gets the feeling that this matter is starting to get a bit unwieldy and there could be very serious cost implications, they can make what’s known as a Smyth order which is set out in the regulations. It basically says, “Me, judge or registrar, I’m telling you, lawyer on both sides, plaintiff and defendant, you must tell your client what’s an estimate of their best outcome and what’s a estimate of their worst outcome.” That’s the award they might get plus costs or if they lose, what they might have to pay the other side in costs.

It’s the good news, it’s the bad news. Putting in the client’s mind or the party’s mind what’s an estimate of the best outcome and what’s the worst outcome. That’s for both sides not just for one party. The aim is it’s a judge telling the– it’s not just the lawyer who at the very beginning gave a off the cuff estimate at the very beginning, it’s generally post-mediation where it hasn’t settled, just prior to hearing because the hearing is the serious end. That’s where there’s going to be a judgement that’s going to be binding on the parties, and they have to accept it unless they can appeal it, which requires proving that the judge made an error in law which can be very difficult. The majority of appeals fail.

It’s the judge basically waving the yellow flag at the F1 saying, “Everyone, just slow down. Cool your heels. Lawyers, tell your clients what you believe is their best outcome and their worst outcome.” It starts to become real in the mind as to, “Gee, this litigation is going to have some serious consequences.” Smyth orders. What’s your best outcome? What’s your worst outcome? Generally after mediation, generally before hearing to make it real.

Thanks for watching. I look forward to talking again next time.

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