Baker v Maria Gilga Baker as Executrix of the Will of Trifonas Triandopulos (deceased)
[2013] WADC 96
•14 JUNE 2013
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : GERALDTON |
PERTH
| CITATION | : | BAKER -v- MARIA GILGA BAKER AS EXECUTRIX OF THE WILL OF TRIFONAS TRIANDOPULOS (DECEASED) [2013] WADC 96 |
| CORAM | : BOWDEN DCJ | ||
| HEARD |
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| DELIVERED |
| ||
| FILE NO/S |
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| BETWEEN | : INGRID TONY BAKER |
First Appellant
MARIA GILGA BAKER
Second Appellant
HADLEIGH PETER REDGE BAKER
Third Appellant
AND
MARIA GILGA BAKER AS EXECUTRIX OF THE
WILL OF TRIFONAS TRIANDOPULOS(DECEASED)
First Respondent
THE PUBLIC TRUSTEE
Second Respondent
ON APPEAL FROM:
| Jurisdiction | : | MAGISTRATES COURT OF WESTERN AUSTRALIA |
| Coram | : MAGISTRATE GLUESTEIN | ||
| File No |
| ||
| Catchwords: |
Order 18 r 6 and r 7 of the Supreme Court Rules 1971 - Joinder of a non-party to an appeal
Legislation:
District Court Rules 2005
Supreme Court Rules 1971
Result:
Order for joinder
Representation:
Counsel:
| First Appellant | : | Mr D Armstrong |
| Second Appellant | : | Mr D Armstrong |
| Third Appellant | : | M r D Armstrong |
| First Respondent | : | Mr D Armstrong |
| Second Respondent | : | Mr B Ashdown |
Solicitors:
| First Appellant | : | Altorfer & Stow |
| Second Appellant | : | Altorfer & Stow |
| Third Appellant | : | Altorfer & Stow |
| First Respondent | : | Altorfer & Stow |
| Second Respondent | : | Public Trustee |
[2013] WADC 96
Case(s) referred to in judgment(s):
Australia and New Zealand Banking Group Ltd v Dzienciol [2001]
WASC 305(S)
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Cuthbertson v Hobart Corporation (1921) 30 CLR 16
Morrell v Mercantile Mutual Insurance (Australia) Ltd (1999) 21 WAR 451
Vandervell Trustees Ltd v White [1971] AC 912
[2013] WADC 96
BOWDEN DCJ
BOWDEN DCJ:
The original application
On 24 September 2012 the appellants sought orders that:
1. Maria Gilga Baker, as executrix of the will of Trifonas Triandopulos (deceased), be added as a second appellant to the appeal.
2. The Public Trustee for the State of Western Australia be made a party to the appeal, in his own capacity, as respondent in place of him in his capacity as next friend/guardian ad litem of Trifonas Triandopulos (deceased).
3. Costs of the application be provided for.
The deputy registrar's decision
The application was heard by a deputy registrar on 16 October 2012 and the following orders, inter alia, were made:
1.
Maria Gilga Baker, as executrix of the will of Trifonas Triandopulos (deceased), be substituted as the respondent.
2. The application otherwise be dismissed. 3.
The appellants pay the Public Trustee's costs of the application to be taxed if not agreed.
The appeal
The appellants' appeals orders 2 and 3 of the deputy registrar's
decision.
Pursuant to r 15(6) District Court Rules 2005 this is treated as a new hearing of the application dated 24 September 2012.
5 This court looks at the matter afresh and reaches his own decision
and is not necessary for any party to show an error or law or fact in the
decision subject to the appeal.
Before considering the appeal, it is necessary to outline some of the background of this matter.
[2013] WADC 96
BOWDEN DCJ
The Background
7 Mr Trifonas Triandopulos (the deceased) was the registered owner of
a property situated at 552 Chapman Road, Geraldton. In late 1996, at his invitation, the second appellant (Ms Baker) and her two children (the other appellants) moved into the property. There was no sexual relationship between Ms Baker and the deceased.
8 In December 1997 the deceased executed an enduring power
of attorney over all of his property in favour of Ms Baker. In September 2004, due to declining health, he left the property to enter residential nursing care. The appellants continued to reside in the residence.
9 The Public Trustee was appointed plenary administrator of the estate
of Mr Triandopulos pursuant to the Guardianship and Administration Act 1990 by an order of the State Administrative Tribunal on 15 February 2007.
10 On 4 February 2010 proceedings were issued by the Public Trustee
in the name of Mr Triandopulos seeking orders that the appellants vacate the property and pay mesne rent from 13 March 2009 to the date they vacated the property.
11 When the proceedings were commenced, the Public Trustee did not
file, as required by r 119 of Magistrates Court (Civil Proceedings) Rules 2005, an affidavit identifying Mr Triandopulos was a represented person and that the Public Trustee acted as his plenary administrator. That affidavit was provided to the court on or about 8 April 2011 and on 12 April 2011 the court amended the name of the claimant to Trifonas Triandopulos by his next friend the Public Trustee in and for the State of Western Australia.
12 The proceedings were heard in the Magistrates Court on 11 and
12 April 2011. His Honour Magistrate Gluestein's final orders of the 11 November 2011 were that the appellants vacate the property and pay to the claimant by way of mesne profit the sum of $14,000 and pay costs to be taxed, if not agreed.
Both the appellants and respondent appealed and the substantive appeal has yet to be heard.
[2013] WADC 96
BOWDEN DCJ
Regrettably Mr Triandopulos died on 17 December 2011. Probate was granted to Ms Baker as the executrix appointed under the will on 20 March 2012. Significantly Ms Baker is the sole beneficiary of the deceased's will.
15 Upon Mr Triandopulos's death the Public Trustee no longer had
authority to act on his behalf. The executrix of his estate was, from the
grant of probate, responsible for the legal proceedings.16 Leaving aside the position of the other two appellants for a moment
the reality is that the outcome of the substantive appeal will make no difference to Ms Baker's occupancy of the property. If she is successful in the appeal, the order that she vacate the property will be quashed. If she is not successful, she is still able to occupy the property as she is the sole beneficiary of the deceased's estate.
17 If the respondent's cross appeal is successful any extra monies
payable by the appellants would become part of the estate and Ms Baker is the sole beneficiary of that estate. If the cross appeal is not successful any money the appellants pay pursuant to the judgment become part of the estate and Ms Baker is the sole beneficiary of the estate.
18 What is at stake however is a massive amount of costs. The Public
Trustee's costs, to date, are somewhere in the vicinity of $40,000 - $45,000 and the appellants' costs are in the region of some $32,000 plus GST and disbursements. The costs of this interlocutory application and appeal will only increase those figures.
The basis for the appellants' application
19 The appellants' grounds of appeal in the substantive appeal, inter alia,
challenge the conduct of the Public Trustee in issuing and serving the notices to vacate the premises, and in commencing and prosecuting the claim against the appellants and in administrating the estate of the deceased. They say the Public Trustee did not act acted lawfully or in the best interest of the deceased in attempting to evict the appellant as they did not consulted with the deceased or endeavour to ascertain his wishes or ascertain his wishes from his previous actions. They also argue that the proceedings should have been commenced in the Supreme Court.
They say if their application is not successful:
(a)
the appellants would be denied the opportunity to argue the merits of the appeal;
[2013] WADC 96
BOWDEN DCJ
(b) the appellants will be denied the opportunity, if successful, to obtain an order for costs against the Public Trustee; and (c) the Public Trustee will be able to argue, in attempting to recover its costs of the trial at the Magistrates Court, that the court awarded it costs in its representative capacity and that as the orders remain, not having been reversed on appeal, they are entitled to benefit from the costs order and recover its costs against the estate. 21 Essentially the appellants wish the Public Trustee to be made party to
the appeal in its own capacity so the appellants can apply for costs, if the substantive appeal is successful, against them in their personal capacity and therefore the costs would not come out of the estate.
22 The appellants says in their written submissions that O 18 r 7(2)(iii)
of the Supreme Court Rules 1971 enables the court to order that other persons are made parties to the cause or matter to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon. They say this order applies to appeals in the District Court and it enables a court to add such parties as are necessary to determine the merits of the appeal and the issue of costs incurred at the original hearing and the appeal.
23 At the hearing the appellant submitted that O 18 r 6(2)(b)
Supreme Court Rules supported their case. Order 18 r 6 states as follows:
6(1)
No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party ; and the court may in any cause or matter determine the issue or questions in dispute so far as they affect the rights of interest of the person who are parties to the cause or matter.
(2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application -
(a) … (b) order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
[2013] WADC 96
BOWDEN DCJ
but no person shall be added as a plaintiff without his consent
signified in writing or in such other manner as may be authorised.
…
24 Mr Armstrong pointed out that this rule is designed to avoid
unnecessary technicality by enabling parties to litigate the real issues between them in an expeditious, effective and cost efficient way: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, 260 - 261.
In Kendall and Curthoys, Civil Procedure Western Australia, par 18.6.5 it is stated:
A person ought to be added as a party if any order which might be made in the proceedings would directly affect that person's rights against or liabilities to a party to the action … a better way of expressing the test is, will his or her rights against or liabilities to any party to the action in respect of the subject matter of the action be directly effected by any order which may be made in the action?
At 16.6.5A it states:
It may be necessary to join to the party against whom there is no cause of action so that he or she will be bound by the result of the action but the question to be settled must be one which cannot be effectively and completely settled unless he or she is a party: Amon v Ralph Tuck & Sons Ltd [1956] 1 QB 357, 380.
27 The rule does not give the power to join a party whenever it is just or
convenient to do so, but only where he or she ought to have been joined or his or her presence is necessary to ensure that all the questions between the original parties are effectually and completely disposed of: Vandervell Trustees Ltd v White [1971] AC 912, 936.
28 Mr Armstrong says that a large part of the appeal deals with the way
the Public Trustee conducted the litigation and, if on appeal, findings were made adverse to the Public Trustee that may affect whether the Public Trustee seeks to recover costs that it would otherwise be entitled to be paid from the estate.
The respondent's submissions
29 The Public Trustee say they were not a party to the proceedings in
the Magistrates Court and where no direct cause of action existed against it in the original proceedings they cannot be joined as a party to the
[2013] WADC 96
BOWDEN DCJ
appeal: Morrell v Mercantile Mutual Insurance (Australia) Ltd (1999)
21 WAR 451, 455 – 457.30 They say the party to the action always remained Mr Triandopulos;
as a next friend does not become a party to the action: Australia and
New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305(S).31 They submit that by reason of the deceased's death, the Public
Trustee's involvement ceases and the deceased is now represented by his estate, which is the respondent to the appeal and there is no basis to join the estate as an additional appellant.
32 They argue s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) provides a right of appeal only to a 'party' and that means an actual party to the proceedings under appeal and the actual parties to the original action were the deceased represented by the Public Trustee, in its representative capacity, and the appellants. As the deceased is now represented by the executrix of the estate the actual parties are the deceased represented by the executrix of the estate and the appellants.
33 Further they argue O 18 r 7(2) does not apply because it only
operates where 'the interest or liability of the party [Mr Triandopulos] is assigned or transmitted to or devolves upon some other person [the Public Trustee]' or the person sought to be added, though not a party to the proceedings might, properly have been one: Cuthbertson v Hobart Corporation (1921) 30 CLR 16, 25. They say as the Public Trustee was never a party to the action, and could not have been joined as a party, in its own right, O 18 r 7(2) cannot assist the appellants.
34 Additionally they submit O 18 r 7(2) does not apply because
s 40(3)(b) of the Magistrates Court (Civil Proceedings) Act which enables appeals from the Magistrates Court to the District Court in civil matters provides that the District Court is to conduct appeals in accordance with the appeal rules it has made and not the general rules of the court, unless the appeal rules specifically include and apply those general rules.
35 They submit that the District Court Rules (r 49 – r 60) are an
exhaustive code of rules applying to appeals and r 57 specifically deals with the court's power on appeals, including the orders it may make, when it can give leave, how it deals with the admission of evidence, when it can dismiss or adjourn an appeal and significantly, they say, the rules omit any power to join parties to the appeal. They say therefore the appeal rules, which omit any reference to the power to join parties, are in conflict with or inconsistent with O 18 r 6 and r 7, which permit joinder of parties
[2013] WADC 96
BOWDEN DCJ
in certain circumstances, and r 6(iii) of the District Court Rules provides that in cases of such conflict or inconsistency the District Court Rules apply.
36 They say that even if the substantive appeal was successful and the
costs order set aside and a new costs made in favour of the appellant, the Public Trustee would be entitled to be indemnified from the estate for any liabilities incurred by the estate in the proceedings below as the estate is responsible for all solicitor/client costs, expenses and other costs incurred by the Public Trustee whilst acting as the plenary administrator of the estate.
37 They say that if there is a dispute between the estate of the late
Mr Trianopulos and the Public Trustee relating to the Public Trustee's conduct as next friend and administrator, or its rights of exoneration and/or indemnity in respect of costs and liability, they are matters for fresh proceedings and not matters that could have been raised in the proceedings below. They say the appellant is trying to join them on appeal as a party when they were not a party to the original action and are seeking to obtain a costs order against them by establishing they are not entitled to be indemnified by the estate which in reality is a separate and distinct cause of action from any issue before the magistrate.
38 They say O 18 r 6 does not apply. They say the cause of action in
the Magistrates Court was for recovery of possession of property and rent for its occupation and the matters being raised about the Public Trustee's conduct are not matters that go to that cause of action.
39 They say that O 18 r 6 only applies where the party ought to have
been joined or their presence is necessary to ensure that all the questions between the original parties are effectually and completely disposed of and that is not required in this case. They say that to add the Public Trustee as a party is in essence to add a cause of action that was not pleaded below and it was not subject to any counterclaim by the appellants.
40 They argue that the Public Trustee is guarding ad litem is not liable
for costs save for exceptional circumstances in the conduct of the opposition to the substantive appeal: Australia and New Zealand Banking Group Ltd v Dzienciol.
[2013] WADC 96
BOWDEN DCJ
Determination
41 The proceedings in the Magistrates Court were conducted by the
Public Trustee as representative of the deceased and the Public Trustee's role was purely as a representative and as such they were not a party to the action in its own right: Australia and New Zealand Banking Group Ltd v Dzienciol.
42 The issues at the hearing in the Magistrates Court was whether the
appellant should be ordered to vacate the property and whether mesne
profits should be ordered.43 I reject the respondent's argument that s 40(1) of the Magistrate Court (Civil Proceedings) Act provides a right of appeal only to an 'actual party to the proceedings under appeal. In my opinion there is no conflict or inconsistency between O 18 r 6 and r 7 of the Supreme Court Rules and the District Court Rules such as to exclude the effect of O 18 r 6 or r 7(2) on this appeal. Rule 57 District Court Rules deals with the court's powers on appeal, it is not in any shape or form directed to who is to be a party to the appeal. There is no inconsistency or conflict between r 57 of the District Court Rules and O 18 r 6 or 7(2) of the Supreme Court Rules.
44 Both O 18 r 6 and r 7 of the Supreme Court Rules apply to appeals from the Magistrates Court to the District Court, however I would not order that the Public Trustee be joined as a party under O 18 r 7(2) in their own capacity for the following reasons.
45 I accept that the Public Trustee was only involved in the substantive
application in their representative capacity and not as a party. That application involved the interest or liability of Mr Triandopulos who was represented by the Public Trustee, upon his death Mr Triandopulos remains a party with his interest represented by the executrix of his estate. The Public Trustee's representative function ceased upon the death and devolved to the estate of the deceased. The interests or liabilities of the party to the action (Mr Mr Triandopulos), has devolved to Ms Baker, as executrix of his estate and in that capacity she was properly joined to this action.
46 I also consider the primary reason the appellants seek to join the
Public Trustee in its personal capacity is to apply for a costs order against them, in that capacity, for their role in carrying out their representative function.
[2013] WADC 96
BOWDEN DCJ
I accept that the appellants could have applied to replace the Public Trustee as the litigation guardian before the case was heard.
The Magistrates Court (Civil Proceedings) Rules, r 122 provides:
A person may make an application to be appointed as the litigation guardian or to replace the litigation guardian, of a person under a legal disability.
49 However O 18 r 6 does enable a party against whom there is no
cause of action and whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party.
50 I accept the respondent's submission that they were not a party to the
original action however the appellant argued before the Magistrates Court, inter alia, that the Public Trustee had no right to bring the proceedings in the Magistrates Court, brought the proceedings other than in accordance with the law and was not acting in the deceased's best interest. These are issues which may create a separate cause of action however they were matters raised before the magistrate.
51 Many of the grounds of appeal say these matters were not dealt with
adequately or at all by the magistrate and although the respondent says the grounds are without merit that is a matter for determination on appeal and it is appropriate that the Public Trustee be joined as a party to the appeal in its own right and be heard so that those issues can be properly litigated.
52 Notwithstanding that the Public Trustee was not a party to the
original action it does seem to me that giving O 18 r 6 a wide interpretation having the Public Trustee before the court on the appeal is necessary to ensure that all matters in dispute may be effectively and completely determined.
I also draw the parties' attention to s 57 of the Trustees Act 1962 which provides:
Trustee may sue himself in a different capacity
Notwithstanding any rule of law or practice to the contrary, a trustee of any property in that capacity may sue, and be sued by, himself in any other capacity whatsoever, including his personal capacity; but in every such case the trustee shall obtain the directions of the Court in which the proceedings are taken, as to the manner in which the opposing interests are to be represented.
[2013] WADC 96
BOWDEN DCJ
Pursuant to s 6 of the Trustees Act a personal representative falls within the definition of trustee.
55 Ms Baker as executrix of the estate of the deceased, is sued in her
representative capacity by herself in her personal capacity and the directions of the court must be obtained as to how these opposing interests are to be represented.
An application for directions needs to be made prior to the appeal proceeding any further and the court may make directions as required.
In accordance with these reasons the orders that I make are as
follows:
1. The Public Trustee for the State of Western Australia is joined as a respondent to the appeal in its own capacity.
2. The costs of this appeal and the costs of the application of 24 September 2012, including reserved costs, be costs in the cause on the appeal.
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