Avsar v Public Trustee - [2011] WASCA 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AVSAR -v- PUBLIC TRUSTEE [2011] WASCA 77

CORAM: PULLIN JA
HALL J

HEARD: 10 MARCH 2011

DELIVERED : 4 APRIL 2011

FILE NO/S: CACV 64 of 2010

BETWEEN: JENNIFER PATRICIA AVSAR
Appellant
AND
PUBLIC TRUSTEE
First Respondent
JOHN ROBERT COWAN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :AVSAR -v- PUBLIC TRUSTEE [2010] WASC 11
File No  :CIV 1530 of 2004

Catchwords:

Wills and probate - Appeal against refusal of application for Letters of Administration - Grounds of appeal - Whether grounds identify errors of law or fact - Whether grounds reasonably arguable

Legislation:

Public Trustee Act 1941 (WA), s 14
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)

Result:

Grounds of appeal struck out
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr B W Ashdown
Second Respondent      :     Ms K Hill

Solicitors:

Appellant:     In person
First Respondent           :     Public Trustee
Second Respondent      :     Hartrey Legal

Case(s) referred to in judgment(s):

Avsar v Binning [2009] WASCA 219
Avsar v Cowan (dec'd) [2009] FCWA 147
Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295
Glew v Frank Jasper Pty Ltd [2010] WASCA 87

PULLIN JA: I agree with the reasons of Hall J.
HALL J:

Background

On 18 March 2010 Kenneth Martin J dismissed an application brought by Mrs Avsar, the appellant, in respect of the administration of the estate of her late mother. On 26 March 2010 Mrs Avsar filed an appeal notice in respect of that decision.
On 8 November 2010 an order was made that the grounds of appeal be struck out with liberty to file new grounds. The original grounds were struck out because none of them identified an error of fact or law in the primary judge's reasons for decision and therefore failed to comply with r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). On 10 December 2010 Mrs Avsar filed new grounds.
On 9 February 2011 a registrar's notice to attend was issued. This gave notice that the matter would be listed for determination of whether the new grounds of appeal should be struck out. If struck out or leave is not granted to amend, the consequence would be that there would be no grounds of appeal and the appeal would be dismissed.
A hearing was conducted on 10 March 2011 at which the appellant appeared unrepresented. The nature of the proceedings was explained and the appellant confirmed that she understood.

Nature of the primary proceedings

Before turning to the new grounds it is necessary to explain the nature of the proceedings before Kenneth Martin J. It is convenient to refer to his Honour's judgment in this regard:
The papers filed by Mrs Avsar in support of her application do not disclose with requisite clarity the precise nature of the relief which she seeks. In the course of argument, however, it emerged that Mrs Avsar seeks a full grant of letters of administration in respect of her late mother's estate, Antoinette Maria Cowan, who died on 16 September 1996. An affidavit sworn by Mrs Avsar on 17 August 2009 indicates that Mrs Avsar's late mother executed a will on 13 July 1994 in which she appointed the Public Trustee as her executor and bequeathed all of her estate to her husband, John Robert Cowan (Mrs Avsar's stepfather).
Prior to the will of 13 July 1994, Mrs Avsar's late mother appears to have made earlier wills on 3 February 1994 and 23 October 1991 to a like dispositive effect, save that she did not refer to John Robert Cowan as her

husband. In an even earlier instrument of 8 October 1987, Mrs Avsar's late mother appointed the Public Trustee as her executor and devised and bequeathed the whole of her estate equally between Mrs Avsar and her grandson, Sean Omar Avsar.
The Public Trustee has not sought probate in respect of any of the wills of Mrs Avsar's late mother. No other party seeks a grant of probate in respect of any of the wills executed by Mrs Avsar's late mother.
It is apparent that Mrs Avsar's application to be appointed administrator of her late mother's estate does not seek a grant of letters of administration with any will annexed. Rather, the application seems to proceed on the premise that all relevant will instruments executed by her late mother (namely, the four will instruments described above) are nullities. Essentially then, Mrs Avsar seeks a full grant of letters of administration on the basis that her late mother died, in effect, intestate [2] - [5].

It would appear that Mrs Avsar also claimed damages against the Public Trustee. His Honour referred to there also being a lack of clarity in that respect. In her proposed new grounds, Mrs Avsar refers to the Public Trustee having caused delay, loss and damage in the prosecution of two civil actions relating to her mother, being Family Court property settlement proceedings and District Court negligence proceedings, by failing to give timely consent to limited grants of probate. There is also reference to Mrs Avsar seeking declarations that the four wills of her late mother be declared invalid.

The decision appealed from

His Honour concluded that there was a fundamental difficulty in granting Mrs Avsar letters of administration on an intestacy in circumstances where there were several potentially valid wills in existence. Whilst Mrs Avsar challenged the competence of her late mother to execute those wills, his Honour concluded that on all of the evidence and materials before him he could not accept the underlying premise of Mrs Avsar's application that her mother had died intestate. That is to say his Honour did not accept that the evidence enabled him to conclude that the wills were invalid.
His Honour also noted that proceedings brought by Mrs Avsar in the Family Court to challenge the validity of her mother's marriage to the late Mr Cowan had been unsuccessful. In the course of those proceedings the Family Court had considered the question of whether the mother had capacity to consent to a marriage on 30 March 1994. Mrs Avsar says that that decision is under appeal but that is of no consequence in these proceedings. His Honour's conclusion was not determined by the decision made in the Family Court but rather, as he stated, on the evidence and materials before him.
His Honour noted that neither the first nor second respondents had objected to a grant of letters of administration to Mrs Avsar and it was arguable that on whatever basis the estate was administered there would be no prejudice to the respondents. However, his Honour was not persuaded that it was appropriate for the court to sanction a grant of letters of administration on the basis of intestacy in the face of significant evidence as to potentially valid testamentary instruments executed by Mrs Avsar's late mother in the period between 1987 and 1994.

The need to identify error

Before turning to the proposed new grounds of appeal it is necessary to make some comments about the nature of an appeal. An appeal of this nature depends upon the identification of error. Error does not arise from the mere assertion on the part of the appellant that the primary judge should have come to a different conclusion.
In Avsar v Binning [2009] WASCA 219 Owen JA (Miller and Newnes JJA concurring) said:
While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self-represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58]:
"The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties. (authorities omitted)" (37).
Where an appellant is unrepresented due allowance for that fact must be made. In Glew v Frank Jasper Pty Ltd [2010] WASCA 87 the following comments were made regarding unrepresented litigants:
A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148, 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court [10].
The underlying issue in the appellant's application for letters of administration was whether her late mother had testamentary capacity. The legal principles in that regard were conveniently summarised by Owen JA in Avsar v Binning [66] ‑ [69]. That was a case also involving the appellant in which she sought to appeal against a decision granting letters of administration in solemn form of the estate of Mr Cowan in favour of the respondent to that appeal. The challenge to the testamentary capacity in that case was in respect of Mr Cowan, but the same legal principles are applicable here.
In Avsar v Binning, Owen JA noted that where evidence is presented that is 'sufficient to throw a doubt upon the testator's competency' then the onus of persuasion is on the proponent of the will: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 343. In the present case, however, it is apparent from Kenneth Martin J's reasons that he did not accept that there was evidence sufficient to cast doubt on the mother's competency.

New grounds of appeal

The proposed new grounds of appeal extend for some five pages. There are 13 numbered paragraphs and a further paragraph headed 'Finally' which it would appear is intended to be a fourteenth ground. A number of the grounds are argumentative and several of them assert as 'conclusive facts' matters which are assertions by the appellant. None of the grounds identify specific express errors alleged to have been made by the primary judge and the general tenor of the grounds is to seek to re‑argue the case.
Ground 1 asserts that the Public Trustee had 'conclusively conceded' that there was significant doubt as to the capacity of Mrs Cowan to make any of the wills. What appears to be suggested is that at some point in the past the Public Trustee had accepted that there was a question regarding Mrs Cowan's capacity. Even assuming such a concession had been made it would not dictate a conclusion by the court. The court would be required to make a determination on the available evidence, which is what Kenneth Martin J did. Accordingly, this ground does not identify any error which could properly be the subject of an appeal.
Ground 2 asserts that the primary judge failed to consider the extent of the loss that Mrs Avsar asserts she suffered as a result of the Public Trustee's alleged delay in consenting to various applications. It is not apparent why any such delay, even assuming it to have occurred, was relevant to the question of whether the appellant should be granted letters of administration. As noted earlier, there does appear to have also been a claim for damages against the Public Trustee, though his Honour said that the nature of that claim was unclear. Whether or not a claim for damages was properly included in the application, it is apparent from [21] of his Honour's reasons that he did not overlook the existence of that claim. In my view, this ground is not reasonably arguable.
Ground 3 asserts that the primary judge failed to consider the 'fact that the Public Trustee owed a duty of care to the appellant and her mother'. The argument appears to be that the Public Trustee renounced any intention to act as executor of the mother's estate but lodged caveats that had the effect of barring the appellant from obtaining any order to administer that estate. The issue for determination before his Honour was whether the grounds existed for the grant of letters of administration on intestacy. Again it is not apparent what the allegation made in this ground has to do with that issue. For the same reasons as relate to ground 2, this ground is not reasonably capable of being argued.
I should note at this point that Mrs Avsar's assertions as to what occurred do not accord with submissions made on behalf of the Public Trustee. According to those submissions the Public Trustee initially elected to administer the mother's estate without obtaining probate or administration on the basis that it was a small estate: Public Trustee Act 1941 (WA) s 14. This was done because there was only one significant asset, a jointly owned property that passed by survivorship. Mrs Avsar then challenged the validity of the wills. Accordingly, the Public Trustee revoked its earlier election because the issue of validity needed to be determined. The Public Trustee lodged a caveat simply to ensure that as the named executor on one of the wills nothing was taken without notice.
Ground 4 asserts that the primary judge 'failed to recognise' that the consent of the second respondent was of 'little comfort' to Mrs Avsar because loss and damage to her and the estate had already occurred. No error of fact or law relevant to the issues for determination is identified.
Ground 5 asserts that the primary judge failed to take into account that Mr Cowan gave instructions to the Public Trustee in regards to the mother's will (though which one is not specified) 'without obtaining real consent'. This is simply an attempt to re‑argue the issue of testamentary capacity that the primary judge found against the appellant. This ground is not reasonably arguable.
Ground 6 asserts that the mother's legal 'incapacity' was established in the Family Court trial. That appears to be a reference to the proceedings brought by the appellant in the Family Court seeking to have the marriage between her mother and Mr Cowan declared invalid. Those proceedings failed and in Avsar v Cowan (dec'd) [2009] FCWA 147 a declaration was made that the marriage celebrated on 30 March 1994 was valid.
A subparagraph of ground 6 refers to the primary judge having failed to consider whether the mother understood what she was signing. This appears to be a reference to the mother having been illiterate. In fact, his Honour did refer to the issue of illiteracy at [30] of his reasons and noted that that issue had been resolved against Mrs Avsar in the Family Court proceedings. In any event, there appears to be an underlying assumption that a person who is illiterate is incapable of executing a valid will. Of course, an illiterate person can execute a valid will. Illiteracy is a relevant circumstance to take into account in determining whether the assumption of testamentary capacity can be drawn. However, contrary to this ground, it is clear that his Honour did take this factor into account. Accordingly, this ground is not capable of reasonable argument.
Ground 7 refers to the illiteracy issue in terms similar to that raised in ground 6. For similar reasons it cannot be reasonably argued.
Ground 8 asserts that the marriage to Mr Cowan was void. This ground is merely argumentative. It asserts as a fact a matter that was determined against the appellant in the Family Court proceedings. No error by the primary judge is identified. This ground is not reasonably arguable.
Ground 9 asserts that evidence had been given in the Family Court proceedings regarding Mr Cowan's character. It is not necessary to repeat the details of this ground other than to say it is scandalous in nature and fails to identify any error on the part of the primary judge.
Ground 10 asserts that the primary judge failed to recognise or give due consideration to damage caused to the estate and to the appellant by expenses wasted in fighting 'third parties that latched onto the estate seeking a benefit'. This ground, as is evident, is also argumentative. It simply assumes the merit of causes which the appellant has lost. It is not reasonably arguable.
Ground 11 asserts that the primary judge failed to take notes of 'facts' referred to in the ground. At its heart, this ground appears to rely upon a dispute as to whether the mother's estate was of any real value. The Public Trustee came to the view that it was of negligible value and the appellant disputes this. At least in part, the appellant's view is based upon causes of action which she has sought to pursue on behalf of her mother's estate. She was given limited grants of administration for this purpose. However, those proceedings failed. Though Mrs Avsar also suggests that the estate should also include other property, including superannuation and real property, this appears to be merely assertions on her part. In any event, it is not apparent why this was relevant to the issue for determination by the primary judge. In these circumstances, this ground is not reasonably capable of being argued.
Ground 12 refers to the fact that the mother was declared a protected person by the Guardianship and Administration Board of South Australia on 14 December 1995 and then asserts that the primary judge failed to recognise that the appellant had suffered serious loss and expense in her ongoing attempts to secure the estate of her deceased mother. Again this ground simply assumes the merit of proceedings in respect of which Mrs Avsar has failed. This ground cannot be reasonably argued.
Ground 13 refers to the appointment of an administrator by the Guardianship and Administration Board and then asserts that the primary judge 'continued to deny the appellant a right to grant full administration orders'. This ground does not identify any error by the primary judge other than the implication that, in the appellant's view, he should have reached a different conclusion. This is not a proper ground.
Ground 14 again asserts that the appellant has suffered damage and that this damage is compounded by the decision that she appeals against. Again this ground simply assumes the correctness of the appellant's original claim and fails to identify an error of fact or law by the primary judge. It is not a proper ground.

Conclusion

Whilst Mrs Avsar is a litigant in person, and allowance must be made for that fact, she has already been shown indulgence by being allowed the opportunity to submit new proposed grounds of appeal. Those new grounds fail to properly identify any errors of fact or law in the primary judge's reasons for decision. None of the proposed grounds has any reasonable prospect of success. In these circumstances, in my view, the proposed new grounds must be struck out and the appeal must be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AVSAR -v- PUBLIC TRUSTEE [No 2] [2011] WASCA 77 (S)

CORAM: PULLIN JA
HALL J

HEARD: 10 MARCH 2011 AND ON THE PAPERS

DELIVERED : 4 APRIL 2011

SUPPLEMENTARY
DECISION :31 MAY 2011