Chapter 18.  A Sad and Sorry Ending

 

 

     

 

After four days of evidence, examination and cross-examination, the trial came to a close on 30 October 2003, and all who participated made their way home to await the decision from Justice de Jersey as to his findings in the case. This was to be handed down on 4 November 2003 just a few days after the last testimony had been given.

To the Judge, barristers, and solicitors, the whole affair was just another case that required their knowledge of law to be put to the test, but to the plaintiff, it was a test of their strength of character, honesty, and integrity to ensure that justice was done. Arguments for both sides had to be put forward, summed up, and assessed by the officiating Judge prior to his final ruling.

 

The legal parties had nothing to lose, because whatever the outcome, they would receive their just rewards. The plaintiff on the other hand had everything to lose, as an adverse decision as to the validity of the final will would result in him being disinherited from what he believed was rightfully his. Whiteside sincerely believed that during the latter stages of the ‘old man’s’ life, he personally had contributed much to his welfare and comfort, whilst Smyth, once the funeral and burial services were over, put into effect all his knowledge and skills as a lawyer to thwart the wishes of the deceased in order to gain control of his estate as Executor to the earlier will. Once Justice de Jersey handed down his decision, Smyth was in complete control of Whiteside, and that is when the ruthlessness began to ensure that Whiteside would suffer for his action in querying his ethics with the Queensland Law Society.

 

Not satisfied with practically accusing Whiteside of acting as an ‘executor de son tort’ under the Succession’s Act, Smyth also denied him his creditor’s claim for expenses outlaid in managing Tom’s affairs. Court costs seeking to confirm his action were debited to Whiteside when he was unable to fight another battle in the courts due to a lack of funds to pursue the matter. When the bailiff appeared at Whiteside’s door demanding payment, he knew he was in trouble, fully believing Smyth would sell his house from under him if the $6,000 requested was not paid. Whiteside maintains he was told that if payment was not made, the bailiff had instructions to seize the keys to the house, and upon advising him he was going to make a call to the Gold Coast Bulletin, the bailiff departed with his final words being ‘leave this to me’.

After this confrontation, Whiteside heard nothing further from either Smyth or the bailiff.

 

This approach by a lawyer bound to uphold the rights of ordinary citizens enraged Whiteside so much, that he took matters into his own hands to notify the authorities and others of what he believed were unethical tactics.

 

His prime objective with the Queensland Law Society was to query Smyth’s attempt to discredit a legitimate EPOA given to Whiteside. The resultant answer from the Society declared it was ‘not a matter which can be determined by the Society’ and therefore they were ‘not able to investigate the matter’. They suggested Whiteside should take advice from his solicitor; and in respect to Tom’s personal papers that Smyth refused to release back to him, Whiteside should make an application to the court (as Tom’s unchallenged Attorney) for a court order to have them returned.

 

The Society based on the complaint received, could easily have asked Smyth why he challenged the EPOA and considered it invalid, but instead chose to throw the onus back to Whiteside by suggesting he apply to the court for a determination to force Smyth to hand over the papers being unlawfully retained.

Alternatively, they might have suggested that if Smyth believed the EPOA was not valid, it would be up to him to apply to the court to prove so, but for reasons previously suggested, he was not about to do this, as the outcome might upset his probate claim on the contested will – he was however asked again by the Society some twelve months later, as to ‘why he continued to reject the EPOA’.

This time Smyth indicated he was ‘prepared to give further consideration to the question of validity of the EPOA upon receipt of a certificate from Whiteside pursuant to Section  99(1) of the Powers of Attorney Act 1998’. This was a clever ploy as he was aware that Whiteside was a pensioner, knew little about the process of law procedure, which in any case would result in further legal consultation at a cost he could ill afford.

 

The Professional Standards representative for the Society finally acknowledged Whiteside’s concern by saying ‘the legal system was weighted against him because Smyth had an advantage due to his technical knowledge as a solicitor, and access to better financial resources’. It is interesting to note the final comment on the matter –

‘Unfortunately, that may well be the case, but it is often true that one party in litigation is at some form of disadvantage or other, compared to the other party’.

This statement confirmed the view often expressed by Whiteside that ‘Lawyers look after lawyers first’.

 

The Legal Ombudsman was next to feel the wrath of Whiteside’s pen, only to be told he had ‘no information on which to redirect a fresh investigation’ into Whiteside’s complaint to the Queensland Law Society.

 

The Attorney General also came in for a serve from Whiteside a year or so before the trial.

He confirmed that the dispute with Smyth would need to follow ‘established legal procedure’.

 

Whiteside also wrote to The Commissioner of the Crime and Misconduct Commission in the following terms-‘I enclose herein a Report on a Civil Jurisdiction Court case held in the Supreme Court of Queensland late last year. The writer being the plaintiff in the case, strongly questions the findings of the Chief Justice Paul de Jersey on the grounds outlined in the Report. Even if the judgment in the case as handed down was correct according to law, it is suggested he erred in declaring for the force and validity of a will dated 15 December 1998, when both the Death Certificate and hospital records revealed evidence indicating the testator was suffering from multi - infarct dementia at the time. It was a long and complicated case, and much evidence crucial to the eventual findings of the Chief Justice appeared not to be placed before the court’.

 

The Commission responded that they were actively examining issues relevant to the inquiry terms of reference, and would consider carefully the information supplied.

Nothing came out of the inquiry.

 

The Legal Services Commission in also considering complaints raised by Whiteside decided in favor of Smyth by stating that ‘whilst information provided might be capable of establishing unsatisfactory professional conduct, it was not capable of constituting professional misconduct’.

 

Inclusion of these complaints by Whiteside to various authorities, are set down to establish the determination in his mind to right the wrongs that he believed had occurred in the judicial procedure in his and trials of like kind, and the injustices that occurs from time to time.

Whether he was right or wrong, is a matter for the reader to decide, as are the findings and eventual Orders of Justice de Jersey, who it seems relied heavily on the evidence of one person as to the mental capacity of the deceased at the time of his signing the 15 December 1998 will.

That person was Andrew Smyth, a lawyer.

 

The Courier Mail soon after the result of the case became known, published an article by its legal affairs reporter  in which he described the outcome of the trial in the following terms –

‘A Gold Coast political activist has lost a Supreme Court battle to inherit $500,000 from an elderly neighbor he befriended. Whiteside went to court seeking probate on the final will, but Mr. Smyth alleged Mr. Jowett was of unsound mind when he prepared the will. Mr. Whiteside said he could not afford to finance an Appeal’.

 

Thus ended the case with lawyers estimated to have collected an estimated $150,000 from the deceased from the time the first will had been prepared by Smyth, until the time Justice de Jersey ruled in favor of the earlier will prepared by Smyth.

 

The book ‘You be the Judge’ allows every reader the opportunity of deciding for themselves whether or not Justice de Jersey accurately disseminated the evidence presented, and rightfully found in favor of the defendant ,who subsequently discharged his duties as Executor to the will of ‘the old man’ Thomas Jowett upon his death on the 6th. July 2001.

 

 

 

 

 

 

 

 

 

 

 

  

 

  

  

 

 

Acknowledgement :

 

The author wishes to acknowledge the input of Bruce Whiteside who provided thousands of pages of documentation to the case, answered numerous questions put to him, provided much of the history of Tom Jowett, and made positive comments  and suggestions on the accuracy of the recording of the events.

 

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