Chapter 7. The Lawyer v Whiteside
Due to the pressure now being applied by Whiteside, Smyth was not about to lie down without using his expert training and knowledge of law to let Whiteside know that if he wanted to play rough, then he too could play the same game.
Together with Crozier, he worked to convince the hospital authorities that not only was Whiteside’s EPOA invalid, but it was in Tom’s best interest that he be placed in a full-time external care facility, rather than be released into the care of the Whitesides. The hospital team, the Adult Guardian, and ACAT didn’t agree with them, and subsequently allowed Tom to be released into the care of both Bruce and Iris Whiteside.
However after Tom’s death, Smyth believed he at last had the upper hand in gaining control of his estate. He immediately challenged the 1 December 1999 will. In later chapters, the drama of the trial and eventual findings of the Chief Justice (the trial Judge) will be played out.
Before the matter went to trial, someone had to accept responsibility for managing Tom’s affairs. Smyth was not about to assume that responsibility, even though he had earlier ridiculed the idea that the EPOA granted to Whiteside was valid.
He still considered himself Tom’s solicitor, and remained convinced that the last will he prepared for Tom was the only valid one in existence. In that document, he promised as Tom’s Executor and Trustee of the estate, that he would see to the payment of all of Tom’s debts, funeral, and administrative expenses; a promise he never fulfilled.
An interesting scenario emerged at this point of time. Would Smyth assume the responsibilities he undertook under the conditions of the will he prepared, or would he continue to sit back and let Whiteside do all the work. He chose the latter.
Whiteside wrote to Smyth on 6 June 2004 in the following terms -
‘From July 6 2001, the day Mr. Jowett passed away, I was legally advised to carry on. In spite of the fact you have zealously claimed to be Mr. Jowett’s legitimate Executor, it never occurred to you to approach me in order to discuss the issues of the Death Certificate, the placing of Death Notices, Funeral Notices, the matter of flowers, the funeral service, the church, the minister, the burial plot, dealing with the Gold Coast City Council on the plaque and internment, not to mention arranging for the cremation. Did I receive one word of advice, or even a courtesy call, no, the silence from you Mr. Smyth was deafening. Why did you wait until Mr. Jowett passed away before making a move on his estate’?
Smyth did however attend the funeral service arranged by Whiteside and held at the Elanora Salvation Army Hall, and Whiteside had this to say about that visit.
‘Your non-involvement other than to attend the funeral service and surreptitiously take notes whilst I was delivering the eulogy prepared in remembrance of a lonely man, was obvious to all. I put it to you that you had one thing only on your mind, and that was to garner evidence you could use against me. It is very apparent now that this was your intention all along rather than celebrate the life and death of a fine person, and to respect the solemnity of the occasion.’
It is history now, but on 21 October 1997 in a discussion with Smyth on funeral arrangements, Tom specifically requested that he wanted to be interred together with Sheila, (his deceased wife) and that he wanted a black marble tablet gold leaf embossed to both of them. Smyth was informed that Sheila’s ashes were in her bedroom at the time – Tom’s wishes were never conveyed to Whiteside.
Smyth was later to challenge Whiteside concerning a cheque for $2,000 that had been drawn on the day of Tom’s death – in all his dealings Smyth appeared to be actively engaged in his endeavor to unsettle Whiteside, whose lawyer responded on his behalf in the following terms.
‘The $2,000 that was withdrawn on the date of Mr. Jowett’s death was done so for the purpose of ensuring there was enough money to pay for funeral arrangements. You will note from some of the enclosed receipts that it clearly evidences payment by cash (part Newhaven funerals, florist, funeral plot, and plaque – Gold Coast City Council and Gold Coast Bulletin) and the records show where the expenditure went’.
Upon the completion of the trial to determine which one of Tom’s wills was valid, Justice de Jersey in the Supreme Court of Queensland on the 6 November 2003 granted probate to Smyth on the will dated 15 December 1998. This gave him the legal authority to administer the estate as the appointed Executor; plus unlimited power to call the tune when it came to creditor’s claims against the estate.
After Tom’s release from the hospital into the Whiteside’s care, Bruce and his wife spent several months looking after him, and continued to manage his affairs until the day he died nearly eighteen months after his release. Whiteside’s lawyer advised him that he had a legitimate claim against the estate for services rendered, plus personal costs outlaid, in looking after Tom over an extended period.
Accordingly, Whiteside forwarded an itemized creditor’s account for $31,934 to Smyth covering his costs related to managing Tom’s affairs. Outlays claimed included reimbursement for meals, painting Tom’s house and fence, managing the property, and a range of other expenditure.
Acting in his capacity as Trustee, Smyth was to later ‘reject Whiteside’s creditor’s claim in its entirety’ thus forcing him to yet another confrontation over a matter of law, and its interpretation. Remember, this is a lawyer versus a pensioner who had no financial resources to fight another court battle, and Smyth was totally aware of this fact.
With unlimited resources at his disposal and with an apparent determination to be-little his nemesis, Smyth set the wheels in motion to prove he was master of the situation. Upon seeking an explanation as to why the claim was refused, Smyth failed to respond, except to challenge Whiteside that if he was not satisfied, he was at liberty to commence action under the Trust’s Act.
The subtle way in which he was about to crucify Whiteside was about to begin.
On 22 November 2004, Smyth filed an Affidavit in the District Court of Queensland Registry at Southport, Number 0727/04. The document enclosed at the very least 60-70 pages of letters and papers to support the Orders he was seeking to bar Whiteside’s claim pursuant to Section 68 (3) A of the Trusts Act 1973.
It was clearly an attempt to persuade the Registrar that he had sufficient evidence to put Whiteside’s claim to rest once and for all. The Originating Application noted by the Registrar on the same date allowed Whiteside to oppose Smyth’s application, or to argue for a different Order to be made.
The terminology was expressed in the following terms – ‘If you wish to oppose this Application or to argue that any different Orders should be made, you must appear before the court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. In addition you may before the day of the hearing file a Notice of Address for Service in this Registry. The Notice should be in Form 8 to the Uniform Civil Procedures Rules. You must serve a copy of it to the applicant’s address for service shown in this application as soon as possible. If you intend on the hearing to rely on any Affidavits they must be filed and served at the applicant’s address for service prior to the hearing date’.
Whiteside as the respondent had no alternative but to appear, and with further costs on the horizon, prepared his Affidavit for registration and stamping in the District Court Registry. The problem was he was forced to serve a copy signed under Oath to the applicant Smyth, who, upon realizing Whiteside was about to argue the case for payment of his claim, took immediate steps to address this unexpected challenge.
On the very day the case was set down to be heard on 24 January 2005, Smyth arranged for further documentation to be submitted to the Magistrate appointed to the hearing. This had the effect of nullifying any possible attempt to resolve the dispute on the day nominated.
When told by the Magistrate that he could not rule on the case because of Smyth’s late inclusion of additional documentation, Whiteside was irate, and argued that there was no justice in the system, and accordingly it was fruitless to proceed further even though the Judge was prepared to allow him time to respond to the further papers produced.
Smyth had won again. But he was still not satisfied, and sought to recover over $6,000 in costs he stated had been incurred in his action against Whiteside.
Lawyers are gifted with the ability to word letters in such a way as to create uncertainty in the minds of its clients as to their intentions. According to Whiteside, he believed the following wording in a letter from Smyth vindicates that belief.
The letter to his lawyer in April 2004 covered matters that needed to be finalized.
Smyth’s words were - ‘We are pleased to enclose our trust account cheque in the sum of $54,474.95 as final settlement of Mr. Whiteside’s entitlement from the estate of the Late Tom Jowett’.
The conclusion reached was that Smyth in his capacity as Executor was offering Whiteside the nominated amount in lieu of his claim, and as final settlement of any outstanding legal fees. After all, he did refer to Whiteside’s ‘entitlement’.
This was not to be the case. The cheque had nothing to do with his claim, was not made out to him, and was purely and solely the remainder of Whiteside’s legal fees that were ordered by the Judge to be paid out of Tom’s estate.
This background history of events should be noted and recalled, when considering if justice was eventually carried out in the trial.