Bevan v Bevan

[2016] WASC 7

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BEVAN -v- BEVAN [2016] WASC 7

CORAM:   ACTING MASTER GETHING

HEARD:   27 OCTOBER 2015

DELIVERED          :   15 JANUARY 2016

FILE NO/S:   CIV 2519 of 2012

MATTER                :Inheritance (Family & Dependants Provision) Act 1972 (WA)

The Will of BETTY SCHOFIELD BEVAN late of Bethanie Fields, 111 Eaton Drive, Eaton, Western Australia, Deceased Probate No 1018/2012

BETWEEN:   JUSTINE MARIE BEVAN

First Plaintiff

BRETT GRAEME BEVAN
Second Plaintiff

AND

KENNETH VIVIAN BEVAN as Executor of the Will of BETTY SCHOFIELD BEVAN
First Defendant

JANICE ELLEN PERRY as Executor of the Will of BETTY SCHOFIELD BEVAN
Second Defendant

MARGARET ANNE DONALDSON as Executor of the Will of BETTY SCHOFIELD BEVAN
Third Defendant

Catchwords:

Practice and procedure - Whether the court has power to set aside a judgment given in the inherent jurisdiction when a party did not attend a case management hearing

Legislation:

Rules of the Supreme Court 1971 (WA), O3 r 5, O 34 r 3

Result:

Judgment of 11 June 2015 set aside

Category:    A

Representation:

Counsel:

First Plaintiff                :     Ms E C Hensler

Second Plaintiff            :     Ms E C Hensler

First Defendant             :     Dr P R MacMillan

Second Defendant         :     Dr P R MacMillan

Third Defendant           :     Dr P R MacMillan

Solicitors:

First Plaintiff                :     Benz Legal

Second Plaintiff            :     Benz Legal

First Defendant             :     Slee Anderson & Pidgeon

Second Defendant         :     Slee Anderson & Pidgeon

Third Defendant           :     Slee Anderson & Pidgeon

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

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345

Dean v Collins [No 2] [2015] WASCA 151

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Johnson & Co v Clifford (1905) 7 WALR 240

Koushappis v The State of Western Australia [2015] WASC 64

Koushappis v The State of Western Australia [No 2] [2012] WASCA 194

Maas v O'Neill [2013] WASC 379

Magenta Nominees Pty Ltd v Bonini [1999] WASC 88

Mariotti v Wanneroo North Pty Ltd [2008] WASC 109

Melville v East End Holdings Inc [2003] WASCA 133

Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273

MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

Osgood v Wham [2007] WASCA 178

Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

Smith v Bank of Western Australia Limited [2010] WASCA 15; (2010) 265 ALR 472

State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398

Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

1. ACTING MASTER GETHING:  Betty Schofield Bevan died on 25 November 2011.[1]  She had four children:  Graeme Alfred Bevan, Kenneth Vivian Bevan, Janice Ellen Perry and Margaret Anne Donaldson.[2]  Graeme predeceased the deceased, leaving two children Justine Marie Bevan and Brett Graeme Bevan (a second daughter, Debra, died in 2012).

   [1] Whom I will refer to as 'the Deceased'.

   [2] Given the number of people with the surname of 'Bevan' I will refer to family members by their first names.

2. The Deceased had a will dated 10 September 2007 (the Will).  Probate of the Will was granted on 9 March 2012 to the executors of the Will, Kenneth, Janice and Margaret.  Justine and Brett will not receive anything under the Will.

3. By application filed 7 September 2012 Justine and Brett[3] sought orders for increased provision under the Will pursuant to Family Provision Act 1972 (WA) (FPA), s 6. Kenneth, Janice and Margaret[4] are the defendants.  The case made slow progress through the usual interlocutory processes, including a couple of unsuccessful attempts at mediation.

   [3] Whom I will refer to collectively as 'the plaintiffs'.

   [4] Whom I will refer to collectively as 'the defendants'.

4. On 14 May 2015 the defendants entered the case for trial.  The case was listed before Master Sanderson on 11 June 2015 for the making of directions for trial.  There was no appearance on behalf of the plaintiffs.  The master dismissed the action, and ordered the plaintiffs pay the defendants' costs of the application, including reserved costs (Judgment).

5. By application filed 20 August 2015, the plaintiffs sought orders setting aside the Judgment.  At the same time, the plaintiffs filed a notice of change of solicitor.  The reasons which follow relate to this application.

6. The plaintiffs filed three affidavits in support of their application.  The first is an affidavit sworn by Justine on 19 August 2015.  The other two are sworn by the plaintiffs' new solicitor, Harriette Elke Benz, and were sworn on 19 August 2015 and 9 October 2015.  It was also necessary for me to review Justine's affidavit sworn 6 September 2012 and Brett's affidavit of the same date in order to form a view as to the utility of setting aside the Judgment.

7. The defendants filed an affidavit in response sworn by Kenneth on 25 September 2015.

8. I have also reviewed the court file, including the Deceased's probate file.

9. The plaintiffs assert that the court has a discretionary power to set aside the Judgment, either pursuant to Rules of the Supreme Court 1971 (WA) (RSC), O 34 r 3 or in its inherent jurisdiction. The defendants assert that O 34 r 3 relates only to non‑attendance at trial, and there is no other applicable discretionary power to set aside the Judgment. Rather, the only way in which the Judgment can be set aside is by commencing an appeal.

10. Three issues arise for determination:

    •Does the court have a discretionary power to set aside the Judgment?

    •If it does, should the discretion be exercised in favour of the plaintiffs?

    •What final orders are appropriate, in particular as to costs?

Does the court have a discretionary power to set aside the Judgment?

1. Before considering whether the court has a discretionary power to set aside the Judgment, it is instructive to first review the power pursuant to which the Judgment was made.  The Judgment appears to have been made in the inherent jurisdiction of the court.  There is ample authority for the power to do so.  'The court has inherent power to prevent its processes from being abused and the corresponding power to protect their integrity once they are set in motion'.[5]  This includes the power to dismiss an action for want of prosecution and for gross disregard of case management orders.[6]  'On the other hand, the courts have acknowledged that case management is not an end in itself and that the ultimate aim of the court is the attainment of justice which no principle of case management can be allowed to supplant'.[7]  The interests of justice also include the timely and efficient disposition of cases.[8]

   [5] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [93] (Steytler P & Owen JA); CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345, 391 (Dawson, Toohey, Gaudron, McHugh, Gummow & Kirby JJ).

   [6] Hancock Family Memorial Foundation [90], [93].  See also  Mariotti v Wanneroo North Pty Ltd [2008] WASC 109 [113] ‑ [124] (Johnson J); Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 [88] (Wheeler J).

   [7] Hancock Family Memorial Foundation [95], citing State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

   [8] Osgood v Wham [2007] WASCA 178 [20] (McLure JA).

2. It is also pertinent to note the observation of Steytler P in Commonwealth of Australia v Albany Port Authority that:  'When the order under consideration has been made by another Judge having like jurisdiction, the Judge considering whether or not to vary or discharge it must exercise particular caution not to take on an appellate jurisdiction where none exists'.[9]

   [9] Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [27].

3. The first head of power relied on by the plaintiffs is RSC O 34 r 3. That rule provides:

   3.Setting aside judgment given in absence of party

   Any judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial.

4. The term 'trial' is defined in RSC O 1 r 4 to include a 'hearing'. The term 'hearing' is not defined. The definitions in RSC O 1 r 4 apply 'unless the context otherwise requires'.

5. The defendants assert that as the hearing before the master on 11 June was not a 'trial', RSC O 34 r 3 does not apply.[10]  Counsel for the defendants did not suggest a definition of a 'trial'.  For present purposes, a possible definition of a 'trial' consistent with the defendants' submissions is a hearing at which witnesses will be called, examined and cross‑examined and at which final orders will be made in the case.  A hearing which is a 'trial' in this sense is in contradistinction to an interlocutory hearing, being a hearing at which orders are made to prepare a case for 'trial'.  If this narrow definition of 'trial' was adopted, it would lead to the odd result that if a party did not appear at a 'trial' and the court awarded judgment, the court would have the power to set aside the judgment, but if the party did not appear at an interlocutory hearing (ie a hearing that is not a 'trial'), and the court awarded judgment, the court would not have the power to set aside the judgment.

   [10] Defendants' submissions [2].

6. There are two other relevant instances in which a judgment may be set aside which add to the argument that it would be anomalous if the court did not have the power to set aside a judgment awarded in the inherent jurisdiction when a party did not appear at an interlocutory hearing.  This first is that if the plaintiffs had not received any notice of the hearing, and had thereby not been given a reasonable opportunity of appearing and presenting their case, then the court would have had inherent jurisdiction to set aside the Judgment without the necessity of an appeal.[11]  (In the present case, it is clear that notice of the hearing was given).[12]

   [11] Commonwealth of Australia [25]; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J).

   [12] See also Koushappis v The State of Western Australia [2015] WASC 64 [36], [39], [49].

7. The second instance is that if the order made by the master had been a springing order, and judgment had been entered as a result of non‑compliance, it is clear that the court has the power pursuant to RSC O 3 r 5 to enlarge the time for compliance, thereby causing the judgment to be set aside.[13]  Where a party does not attend the hearing at which the springing order is made, the springing order is to be drafted so that compliance is due within a set number of days after service of the order.[14]

   [13] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 286 (Wilson J, Deane & Dawson JJ agreeing); Melville v East End Holdings Inc [2003] WASCA 133 [17] (Hasluck J, Pullin J agreeing); MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] (Newnes M); Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351 [3] ‑ [4] (Le Miere J).

   [14] Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [18] (Judgment of the Court).

8. The fact that the Judgment was awarded in the inherent jurisdiction of the court also adds to the argument that it would be anomalous if the court did not have the power to set it aside.  That jurisdiction is exercised to prevent an injustice by the processes of the court being abused.  If a party who does not appear when judgment is awarded, upon being made aware of the judgment, comes to court and presents a compelling argument as to why the processes of the court have not been abused, then it would seem unjust not to set aside the judgment.

9. In Koushappis v The State of Western Australia Jenkins J applied the power in RSC O 34 r 3 in the context of an application for orders under the Criminal Property Confiscation Act 2000 (WA).[15]  The hearing at which the judgment was awarded did not appear to be a 'trial' in the narrow sense defined above.

   [15] Koushappis [32], [35].

10. For these reasons, I am of the view that the context of RSC O 34 r 3 does not require the definition of 'trial' in RSC O 4 r 1 to not apply, and that 'trial' in RSC O 34 r 3 includes a 'hearing'. In my opinion, it would be anomalous if the court did not have the power to set aside a judgment awarded in the inherent jurisdiction when a party did not appear at an interlocutory hearing. I am further of the view that the hearing before the master on 11 June 2015 was a 'hearing' for the purposes of the definition of 'trial' in RSC O 4 r 1.

11. In the event that I am wrong in this conclusion, it is appropriate that I consider the plaintiffs' alternate submission that the court has the power in its inherent jurisdiction to set aside the Judgment.  A decision to strike out an action for want of prosecution in the inherent jurisdiction of the court is an interlocutory decision.[16]  By analogy, the decision in the present case, also in the inherent jurisdiction, would be an interlocutory decision.  The court has the power to discharge or vary an interlocutory decision in its inherent jurisdiction.[17] The analysis set out at [18] above explains why this is appropriate as a matter of principle, at least in the circumstances of the present application.

    [16] Smith v Bank of Western Australia Limited [2010] WASCA 15; (2010) 265 ALR 472 [67] (Newnes JA); Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 [2] (Martin CJ, Wheeler & Pullin JJA agreeing).

    [17] Commonwealth of Australia [23] ‑ [24] (Steytler P), [70] (Pullin JA); Commonwealth Bank of Australia Ltd vSaraceni [2013] WASC 115 [9] (Corboy J).

12. The present application was not brought within the 14 day time period set out in RSC O 34 r 3. The power in RSC O 3 r 5 to extend the time within which the application may be brought applies to an application pursuant to RSC O 34 r 3. The discretionary considerations for the exercise of RSC O 3 r 5 and O 34 r 3 are more or less identical:[18] thus, if the application is one which should be granted pursuant to O 34 r 3, the time within which it may be commenced should be enlarged pursuant to O 3 r 5.

    [18] See generally:  MTQ Holdings [39] ‑ [57]; Rapid Metal Developments [3] ‑ [4].

Should the discretion be exercised in favour of the plaintiffs?

1. Having found that the court has a discretion to set aside the Judgment, the next issue is whether it should be exercised in favour of the plaintiffs.

2. The power in RSC O 34 r 3 is a discretionary one, with the key consideration being whether in all the circumstances it would be unjust for the judgment to stand.[19]  Specific factors which the court should consider in the exercise of its discretion are:[20]

   •The reason why the party did not attend.

   •Any delays in bringing the application.

   •Whether some useful purpose would be served by setting aside the judgment, requiring an analysis of the merits of the case.

   •The injustice to the applicant if the judgment is not set aside.

   •The injustice to the respondent if the judgment is set aside, including whether orders can be made to minimise the possibility of any such injustice.

   [19] Johnson & Co v Clifford (1905) 7 WALR 240, 240 (Stone CJ), 241 (McMillan J), 241 (Burnside J); Koushappis [35], [50], [123]; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239, 243 ‑ 244 (Jordan CJ, Davidson & Roper JJ agreeing).

   [20] Koushappis [49] ‑ [50].  See also:  Koushappis v The State of Western Australia [No 2] [2012] WASCA 194 [22] (Buss JA, Pullin & Newnes JJA agreeing); Vacuum Oil (243 ‑ 244).

3. The general case management considerations in RSC O 1 r 4B are also applicable.

4. I propose to consider the first three factors in detail, though for clarity of analysis it is convenient to start with the general case management history.

Case management considerations

1. The history of this litigation is set out in some detail in an affidavit filed by Kenneth sworn 25 September 2015.[21]  The history which follows is taken from a combination of Kenneth's affidavit and my review of the file.

   [21] KV Bevan affidavit sworn 25 September 2015, pars 13 ‑ 54.

2. As I have noted, the plaintiffs filed their application on 7 September 2012.  This was two days prior to the limitation period lapsing for the plaintiffs to commence proceedings as of right.[22]

   [22] FPA s 7(2)(a).

3. The first status conference occurred on 11 February 2013.  At this status conference, the parties were ordered to attend a mediation conference.  The obligation was placed on the plaintiffs to lodge a request for an appointment for the mediation no later than seven days after receiving unavailable dates from the defendants.  The defendants provided their unavailable dates promptly, along with two reminder letters.  The plaintiffs failed to lodge a request for an appointment date, so the mediation was not then listed.

4. The court listed a further status conference on 24 June 2013.  Both parties attended and were represented.  The registrar made a costs order against the plaintiffs in favour of the defendants.  The intent appears to have been to make fresh endeavours to list the action for a mediation conference.

5. The plaintiffs' solicitors did not take any step to advise the court of the parties' unavailable dates until a letter dated 11 September 2013.  This appears to have been prompted by a notice from the court dated 22 August 2013 listing a status conference for 16 September 2013.  This status conference was later vacated.

6. A mediation conference was listed for 6 December 2013 and proceeded.  The parties were not able to settle the case.  The mediation conference was adjourned to a further mediation conference on 5 March 2014.  The mediation conference on 5 March 2014 also took place, and again the case did not settle.  It was adjourned to 9 June 2014.  The mediation conference listed for 9 June 2014 was vacated by the court at the request of the parties.  The plaintiffs' lawyers were requested by the court to provide a combined list of the parties' unavailable dates for a relisting of the mediation conference within the following two months.

7. By letter dated 9 October 2014, the defendants' solicitors wrote to the court advising that the plaintiffs had taken no steps to relist the mediation conference.  The defendants' solicitors requested the court to relist the mediation conference without advice from the plaintiffs as to their unavailable dates.

8. By email dated 3 November 2014, the associate to the case managing registrar requested the parties to provide their combined available dates by 7 November 2014.  The parties were advised that if there was no response by that time, the case would be relisted for a status conference.  There was no response, so a further status conference was listed for 15 December 2014.

9. Only counsel for the defendants attended the status conference on 15 December 2015.  The registrar made orders that the defendants file and serve any further affidavits upon which they intended to rely by 30 January 2015, and granted the defendants liberty to enter the case for hearing.  The defendants filed an answering affidavit by Margaret sworn 30 January 2015.

10. By letter dated 6 April 2015, the associate to the case managing registrar wrote to the plaintiffs' solicitors requiring them to provide the court with a brief written report as to the status quo in the matter, and when it would be entered for hearing.  The plaintiffs' solicitors were requested to respond by 28 April 2015.  The plaintiffs' solicitors did not respond to this letter.

1. On 14 May 2015 the defendants filed and served a certificate of readiness and notice of entry for trial.

2. The case was allocated to the master.  The solicitors for the parties were notified by email from the associate to the master that the case had been listed for directions on 9 June 2015.  As a result of the unavailability of counsel for the defendants, this hearing was vacated and relisted to 11 June 2015.  Again the solicitors for the parties were notified by email.

3. There was no appearance on behalf of the plaintiffs at the hearing on 11 June 2015.

4. In his written submissions, counsel for the defendants states that 'as a result of the plaintiffs' serial derelictions, the matter had not been mediated as of the date of the Master's Order:  that is, 33 months after proceedings were issued'.[23]  The submissions are to the effect that it was the fault of the plaintiffs that the mediations had to be adjourned.[24]  Kenneth's evidence does not support that submission.  Given the confidentiality restrictions which apply to a mediation set out in Supreme Court Act 1935 (WA) pt VI, it is difficult for a party to place evidence before the court as to the cause of an adjournment of a mediation.

   [23] Defendants' submissions [40(e)].

   [24] Defendants' submissions [13] ‑ [15].

5. Nonetheless, the multiple instances of non‑compliance and repeated delays by the plaintiffs which I have set out above offend modern notions of case management.  It is hardly surprising that, given the history which I have outlined, the master awarded judgment to the defendants at the hearing on 11 June 2015.

The reason why the party did not attend

1. In short, the reason why the plaintiffs did not attend the hearing on 11 June 2015 was because they thought that their solicitor, Earle Scarff, would be attending the hearing.  In her affidavit sworn 19 August 2015, Justine sets out in some detail the difficulties she had been experiencing since April 2014 in dealing with Mr Scarff.  Given the significance of these interactions, it is appropriate that I set out Justine's evidence in detail:[25]

   [25] JM Bevan affidavit sworn 6 September 2015, pars 3 ‑ 23.

   3.Slater & Gordon initially acted on my behalf and for the second plaintiff, regarding a claim against the estate of my grandmother, Betty Schofield Bevan.  However, on or about 9 March 2012, Slater & Gordon advised me of a potential conflict and that I needed to instruct another firm of solicitors.

   4.On or about 14 March 2012, the second plaintiff and I instructed Clement & Co to act on our behalf regarding our claim.  I dealt mainly with Earle Scarff (Scarff).

   5.On or about 5 March 2014, I attended a second mediation conference in Perth.  The second plaintiff was also in attendance.  The matter did not settle at the second mediation.

   6.From approximately early April 2014, I began to email and phone Scarff regarding the progress of this matter, including emailing Scarff directly, emailing his office and leaving a number of telephone messages with his office and on his personal mobile.  Scarff failed to return my telephone calls or respond to my emails.  I continued to attempt to contact Scarff  until about late October 2014.

   7.Before this mediation, Scarff had kept me up to date regarding the progress of the matter and, as far as I knew, the plaintiffs and Scarff had done what the Court asked us to do.  I was worried that Scarff was not returning my calls or responding to my emails and I was worried about the progress of the matter.

   8.In late November 2014, I contacted the Legal Profession Complaints Committee (LPCC) requesting information about what assistance I could obtain so that Scarff would keep me advised of progress and respond to my queries.

   9.I was reluctant to change solicitors again due to the cost involved.

   10.Sometime in late December 2014, I drove with my mother to Scarff's office in Mandurah.  Scarff met with me briefly.  He said to me words to the effect of 'I cannot act for you anymore.  I'm too busy.  I'll get all the papers to you as soon as possible.  I can recommend solicitors in Perth to take over.'

   11.I left Scarff's office in shock.

   12.Throughout January 2015, I left a number of messages for Scarff regarding when I would receive his files.  I did not receive a response from Scarff to these messages and I did not receive his files.

   13.In late January 2015, my mother attended at Scarffs offices in Mandurah on my behalf and insisted on his files being provided to her.  My mother then delivered the files as provided by Scarff to me.  At the time of delivery, she told me that there were additional files to be delivered.

   14.During February and March 2015, I left a number of messages for Scarff regarding when I would receive the complete files.  I did not receive a response from Scarff to these messages and I did not receive any further files.

   15.I contacted the LPCC requesting assistance in obtaining the remaining files held by Scarff.  I mainly dealt with a person named Sandra Costopoulos (Costopoulos).  I believe Costopoulos requested that Scarff provide to me any remaining files held [by] him.

   16Scarff did not provide any recommendations to me about a new solicitor.

   17.No contact or correspondence was received from Scarff until 8 June 2015, when the second plaintiff rang me and said words to the effect 'I've just been contacted by Earle.  There's a hearing in 3 days.  You need to call him urgently'.

   18.I called Scarff during my lunch break that same day during which he said to me words to the effect of 'There is a conference listed for hearing on 11 June 2015, which you should attend.'  I responded with words to the effect of 'I've been trying to contact you for months about what is going on and you tell me 3 days beforehand of a hearing that I have to attend.  I can't attend this hearing. I have work to attend.'  Scarff responded with words to the effect of 'I will have to attend the hearing and I will tell the Court that I am no longer acting for you.'

   19.The telephone call from Scarff on 8 June 2015 was the first notice I was given that a Listing Conference was to be held on 11 June 2015.

   20.I am not familiar with the processes of the Court and I do not know what a Listing Conference is.  I trusted Scarff to do what was required to progress this matter.

   21.Sometime during the week beginning 15 June 2015, Rebecca Rorrison of the LPCC contacted me via telephone and advised me that at the Listing Conference on 11 June 2015, the proceedings were dismissed.  This was because there was no appearance by anyone on behalf of the plaintiffs.

   22.To the best of my knowledge and belief, Clement & Co were on the record as acting for the plaintiffs on 11 June 2015.

   23.At no time during the telephone discussion with Scarff on 8 June 2015, was I advised of what the possible consequences could be if I did not attend the Listing Conference.

Any delays in bringing the application

1. The application to set aside the Judgment was not brought until 20 August 2015.

2. The delay here is explained in Ms Benz's affidavit sworn 19 August 2015.[26]  Ms Benz states that she first met with the plaintiffs on 2 July 2015.  In the next two weeks she made enquiries of Clement & Co, the defendants' solicitors and the Associate to the case managing registrar to ascertain what had occurred.

   [26] HE Benz affidavit sworn 19 August 2015, pars 3 ‑ 16.

3. By letter dated 28 July 2015 Ms Benz wrote to the defendants' solicitors advising that she had received instructions to file an application to set aside the Judgment. In doing so, she complied with her obligation to confer pursuant to RSC O 59 r 9. By facsimile dated 31 July 2015, the defendants' solicitors advised Ms Benz that the defendants would oppose the application to set aside the Judgment.

4. By letter dated 30 July 2015 to Clement & Co, Ms Benz requested a copy of the files held by that firm.  She received a copy of the court document file from Clement & Co on 5 August 2015.  Ms Benz also requested a copy of the correspondence file from Clement & Co on a number of occasions, and has not been provided with it.[27]  She deposes to seeing the majority of the correspondence attached to Kenneth's affidavit for the first time when she read it.[28]

Would some useful purpose be served by setting aside the Judgment?

[27] HE Benz affidavit sworn 19 August 2015, pars 12 ‑ 15; HE Benz affidavit sworn 9 October 2015, pars 7 ‑ 9.

[28] HE Benz affidavit sworn 9 October 2015, pars 5 ‑ 6.

1. As Graeme predeceased the deceased, his children Justine and Brett are entitled to bring an application under the FPA.[29]

   [29] FPA s 7(1)(d)(ii).

2. The Will provided for Graeme to receive the Deceased's interest in certain property at Blair Street, Bunbury.  In the event that Graeme predeceased the Deceased, his share was to go to his children.  However, the Deceased had sold her interest in the Blair Street property in 2009.  The net effect is that Justine and Brett will not receive anything under the Will.

3. In Justine's affidavit filed when the case was commenced, she sets out in some detail concerns about the 2009 transaction in which the Deceased's half share in the Blair Street property was sold.  Her concerns included an allegation that the Deceased lacked capacity at that time.[30]  However, in the application filed 7 September 2012, the plaintiffs only seek orders pursuant to FPA s 6.  There is a draft statement of claim which appears to have been filed which raises these allegations, but as it goes well beyond the scope of the application, I do not consider it to have been properly filed.  As these wider allegations have not formally been brought before the court, for present purposes I will only consider the application pursuant to the FPA.

   [30] JM Bevan affidavit sworn 6 September 2012, pars 26 ‑ 30.

4. An application under FPA s 6 involves a two stage process.[31]  The first stage is an inquiry as to whether the disposition of the deceased's estate 'is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life' of any eligible applicant.  If the court is satisfied that the first stage has been met, then the second stage is a discretion to order that 'such provision as the Court thinks fit is made out of the estate of the deceased for that purpose'.

   [31] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [56] (Gummow & Hayne JJ); Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 209 (Mason CJ, Deane & McHugh JJ); Dean v Collins [No 2] [2015] WASCA 151 [24] (Chaney J, Martin CJ & Buss JA agreeing).

5. In relation to the first stage, the principles were the subject of recent consideration by the Court of Appeal in Dean v Collins.  Chaney J (with whom Martin CJ and Buss JA agreed) summarised the principles in the following terms:[32]

   The first stage of the process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance, support, education or advancement appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

   [32] Dean [24].

6. The issue in that appeal was whether it is necessary for an applicant in the first stage to demonstrate that his or her needs are greater than the named beneficiaries under the will.  Chaney J held that the applicant does not need to do so.[33]

   [33] Dean [26].

7. As to the second stage, the principles are conveniently summarised in the judgment of Pritchard J in Maas v O'Neill:[34]

   In exercising the discretion under s 6(1) of the Family Provisions Act, the question for the Court is what award would be adequate for the 'proper' maintenance, support, education or advancement of the applicant.  The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award.  The propriety of a provision for an applicant is to be assessed by reference to all the circumstances.  Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it.  The exercise of discretion involves a consideration of the facts which exist at the time of the making of the order.  (footnotes omitted)

   [34] Maas v O'Neill [2013] WASC 379 [18].

8. According to the Form 9B statement of assets and liabilities, the value of the Deceased's estate at the date of her death was just over $2.5 million (in March 2012).

9. The evidence of Justine's financial and personal position is set out in her affidavit of 6 September 2012.  She is a school teacher.  She is in a long‑term relationship with her partner, and together they have three children, who are currently aged between 10 and 15.  She and her partner have net assets of about $190,000, which appeared to comprise the equity in their residence.  According to her 2011 Individual Tax Return, her gross income for that year was $67,097.  I note in passing that this tax return also reveals that Justine then had a rental property at Russell Road in Burekup which she does not refer to in her affidavit.  When combined with her partner's income, she says she has 'little surplus income' after payment of mortgage payments, car repayments, credit card debts and living expenses.  At the time of swearing this affidavit, Justine was on anti‑depressant medication.[35]

   [35] JM Bevan affidavit sworn 6 September 2012, pars 21 ‑ 25, 33.

10. In my view it is clearly arguable that the Will did not make adequate provision for Justine's proper maintenance, support, education and advancement, in particular in view of the size of the Deceased's estate.  The fact that the piece of land which was to go to Justine's father under the Will was sold prior to the death of the Deceased would be a relevant circumstance in determining the quantity of the award.

11. The only evidence of Brett's financial and personal position is that set out in his affidavit dated 6 September 2012 filed at the commencement of the case.  At the time of swearing this affidavit he was 42 years old.  He has no assets of substance aside from a Nissan Navara motor vehicle which is 'all but paid for'.  He was then residing with his mother.  He was in casual employment, and according to his group certificate for the year ending 30 June 2012 received a gross salary of $86,234.  He has a daughter who was then 8‑years‑old, whom he has never met.  He was on anti‑depressant medication at that time and has 'struggled in recent years mentally and emotionally because of the issues I have faced in my life'.[36]

    [36] BG Bevan affidavit sworn 6 September 2012, pars 24 ‑ 32.

12. In my view it is clearly arguable that the Will did not make adequate provision for Brett's proper maintenance, support, education and advancement, with the comments in [56] being equally applicable to Brett.

Exercise of the discretion

1. The multiple instances of non-compliance and repeated delays by the plaintiffs which I outlined in reviewing the case management history, weigh heavily against the exercise of the discretion to set aside the Judgment.

2. The delay between the Judgment being made and the filing of the application to set it aside was not undue, and is adequately explained by Ms Benz.

3. From my review of the merits of the FPA claim, I consider that there would be some utility in setting aside the Judgment in the sense that it is arguable that both plaintiffs meet the jurisdictional threshold in FPA s 6.  Further, the value of the Deceased's estate means that, if the plaintiffs are over the jurisdictional threshold, there is a real prospect they will receive a meaningful amount of money by way of provision.

4. The injustice to the plaintiffs if the judgment is not set aside is that they will lose the opportunity to have the court adjudicate on their claims pursuant to the FPA, claims which I consider have merit.  Perhaps more significantly, they will have to pay the defendants' costs of the case.

5. As to the injustice to the defendants if the Judgment is set aside, in his affidavit sworn 25 September 2015, Kenneth states:[37]

   55.I am a self funded retiree as are my sisters, and on a personal level, I have had to put off going on prolonged holidays as I have been waiting for these proceedings to be finalised and I have to be available for instructing our solicitors and Court hearings.

   56.This includes a trip that I was going to go on with my wife, Shirley, to Canada and also going to see Shirley's elderly sister in England.

   57.The prejudice that is continuing to grow in regard to the plaintiffs' tardiness is making my life and the life of my sisters, all the executors of the Estate, very difficult as we are all retirees and would like to be getting on with our lives and enjoying our retirement.

   58.The plaintiffs have at no time taken any proactive steps in moving this matter and that is why I, on behalf of the other executors, oppose the plaintiffs' application.

   [37] KV Bevan affidavit sworn 25 September 2015, pars 55 ‑ 58.

6. The injustice to the defendants if the Judgment is not set aside is that they will have the continued inconvenience and cost of participating in Supreme Court litigation.  However, given the size of the Deceased's estate, it is clear that the defendants will each receive a significant amount of money from the estate whatever provision is made for the plaintiffs under their FPA claim.

7. The analysis thus far is finely balanced.  The factor which tips the balance, in my view, is that the reason why the Judgment was awarded lies solely in the conduct of the plaintiffs' solicitor, Mr Scarff, in not attending the hearing on 11 June 2015.  Indeed, on the information before me, it appears that he has been the source of the delays in the prosecution of the case.  As set out above [42], Justine appears to have gone to considerable effort to press Mr Scarff to move the case forwards, including communication with the Legal Profession Complaints Committee.

8. In all the circumstances of the present case, I consider that it would be unjust to let the Judgment stand, thereby imposing on the plaintiffs the consequences of the actions of Mr Scarff in not attending the hearing on 11 June 2015.

What final orders are appropriate?

1. For the reasons set out above, I am satisfied that the Judgment should be set aside pursuant to RSC O 34 r 3. I am also satisfied that the time within which the application could have been brought should be extended pursuant to RSC O 3 r 5 until 20 August 2015.

2. The case should be listed before the master for the making of trial directions.

3. I will hear from counsel as to costs.

4. There is a real issue here as to whether Clement & Co or Mr Scarff should pay any costs awarded on this application personally pursuant to RSC O 66 r 5. It may be that following delivery of these reasons, I will need to convene a separate hearing at which Mr Scarff can be heard on this point.