Civil Law (Costs in Probate Matters) Bill 2017: Report and Final Stages

Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Non-Government amendments must be seconded.

Government amendment No. 1:
In page 4, to delete lines 10 to 12 and substitute the following:
“(2) In exercising its discretion as referred to in subsection (1), a court may, for stated reasons, where it appears to the court to be just and equitable in the circumstances of the case, make an order that the costs or a portion of the costs be paid out of the estate of the deceased person to which the action or proceedings relate.”.

On Committee Stage I accepted the amendment proposed by Senator McDowell.

I indicated my intention to consult further with the Office of the Attorney General and arising from those consultations, I am proposing the amendment as currently constructed. The effect of this amendment will be to confirm that it would continue to be open to a court to order costs in favour of an unsuccessful party where it appears to the court to be just and equitable in the circumstances of the case, out of the estate of the deceased. It is my understanding that Senator McDowell in particular is agreeable to this clarification. I am sure that Senators will agree that those with genuine claims concerning, for example, misconduct or the maladministration of an estate, should not be discouraged from instituting or commencing legal proceedings because of a fear they may be charged with the entire costs of such proceedings if unsuccessful. The compromise put forward today should meet the concerns of the Senators who drafted the legislation and I ask the House to accept the amendment as currently drafted.

I totally agree with the Minister's amendment. It strikes a fair balance between the pre-existing presumption in favour of a share out from the estate on the one hand and a totally exclusionary rule on the other. Giving the Judiciary the right to make a ruling which does not follow the event in the case, on equitable grounds, as long as it is stated in their order, is totally reasonable. I am very glad to support the amendment proposed.

Amendment agreed to.
Bill, as amended, received for final consideration and passed.