Brooks v Brooks - [2022] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
BROOKS v BROOKS & ORS
[2022] SASC 1
Judgment of the Honourable Justice Stein
5 January 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The appellant seeks an extension of time to appeal against orders made by consent over six years ago following a mediation participated in by the appellant concerning provision from the estate of the appellant’s late father.
Held, dismissing the application for an extension of time to appeal:
1. The basis for an extension of time is not made out in the circumstances including that the delay is in excess of six years, the orders appealed were the product of mediation, terms of compromise were signed by the appellant and the appellant has not made out an arguable case for appeal.

Inheritance (Family Provision) Act 1972 (SA); Uniform Civil Rules 2020 (SA) r 1.5, r 212.2(1)(a), r 212.2(1)(i), r 212.3(2), r 213.1(1)(d); Supreme Court Act 1935 (SA) s 50(2), s 50(4)(a)(i), referred to.
Moody v Moody [1949] SASR 331; NZI Insurance Australia Ltd v Baryzcka & Anor (2002) 85 SASR 482; Workcover Rehabilitation and Compensation Corp v Elderly Citizen Homes of SA Inc [1999] SASC 332, considered.

BROOKS v BROOKS & ORS
[2022] SASC 1
Overview

On 26 March 2015, orders were made by Judge Withers (“Orders”) concerning provision from the estate of the appellant’s late father, Mr Hector Brooks. Those Orders were made by consent following a mediation on 19 February 2015 between the appellant and the respondents.
The appellant now seeks an extension of time to appeal against the Orders on various grounds.
Background
Some of the history of this matter is relevant to the application for an extension of time and to the grounds of appeal.
Mr Hector Brooks died on 17 February 2013. Probate of his will was granted on 6 November 2013 to his executors, the First, Second, Third and Fourth Respondents to this appeal.
On 5 May 2014, the appellant instituted proceedings for further provision from the deceased’s estate under the Inheritance (Family Provision) Act 1972 (SA) (“Original Action”). The appellant was assisted by his legal representative, Mr Gillam.
A mediation in the Original Action occurred on 19 February 2015 (“Mediation”). The mediator was Mr T R Anderson QC. The appellant was represented at the Mediation by a solicitor and counsel. At the Mediation, heads of agreement were signed by all parties, including the appellant. The heads of agreement provided for settlement of the action and of other entitlements of the appellant. It provided for the appointment of a trustee, independent of the appellant, to administer a trust in the interest of the appellant’s children. Following the Mediation, the Court was asked to make the Orders agreed by the parties. Accordingly, on 26 March 2015, the Orders were made. This included an order making terms of compromise as agreed by the parties a rule of the Court (“Terms of Compromise”).
Amongst other things, the Terms of Compromise stipulate in clause 4 the receipt of $1,650,000 by the appellant in full and final satisfaction of his claims and entitlements to the deceased’s estate, a trust known as the Christopher Trust, and to a further trust, the HB Brooks Trust. Clause 10 of the Terms of Compromise sets out a division of the Christopher Trust property such that one half of that property is held on trust for the appellant’s children (“Christopher Sub-Trust”) and the other half is held on trust for the appellant’s former wife and her two children.
The Terms of Compromise included in clause 12 that “each of the parties to these Terms of Compromise has had independent legal advice as to the signing of hereof”.
The Court’s Record of Outcome dated 26 March 2015 notes the Orders “has the consent of the pltf endorsed on it”. The appellant’s signature appears on the Terms of Compromise. That fact was not disputed by the appellant at the hearing before me.
On 20 June 2016, the appellant, assisted by his new legal representative, Mr Field, filed an interlocutory application seeking orders from the Court to enquire into the manner in which the trustees were managing the invested lump sum and the adequacy of the provision of funds for the proper maintenance, education and advancement of the beneficiaries. The supporting affidavit to that application stated the appellant was, amongst other things, concerned he had been denied the opportunity to exercise his rights under the Orders to select trustees of the Christopher Sub-Trust, that it was not appropriate for the Christopher Sub‑Trust funds to be held in shares, and that the trustees of the Christopher Trust and Christopher Sub-Trust were not adequately providing for the appellant.
By further affidavit dated 28 October 2016, the appellant stated he had entered the Mediation on the understanding that the deceased’s wishes in relation to his estate in 2003 would be upheld, and further, that the deceased had been lied to and mislead and was not fully aware of the appellant’s and appellant’s children’s circumstances or needs.
The interlocutory application was before the Court on 21 December 2016 for directions. Mr Field sought, and was granted, leave to cease acting for the appellant. At the hearing, the Court noted the receipt of the appellant’s Notice of Discontinuance but was unable to ascertain against which of the respondents the proceedings were discontinued. Mr Field stated he had no instructions or knowledge that had occurred or was going to occur. The transcript of the hearing then records that the Court asked the respondent’s solicitor to write to the appellant and advise him that the Supreme Court Registry would contact him for clarification regarding his Notice of Discontinuance and the Court would make orders in his absence should he not appear on the next occasion.[1]
[1] Transcript of Proceedings, Brooks v Brooks & Ors (Supreme Court of South Australia, 14/545, Judge Bochner, 21 December 2016), T6.27-32.
The appellant did not appear on 19 January 2017, the next listed occasion. The Record of Outcome confirms that the respondent wrote to the appellant as requested and the Registry confirmed with the appellant that he did not wish to continue his application.[2] The application was thus dismissed.
[2] Record of Outcome, Brooks v Brooks & Ors (Supreme Court of South Australia, 14/545, Judge Bochner, 19 January 2017).
On 2 August 2021, the appellant filed a Notice of Appeal against “all the orders sort [sic] by the defense [sic] in case 545-14”.
Jurisdiction
By s 50(2) of the Supreme Court Act 1935 (SA), an appeal against a judgment of a Master lies, if the Rules so provide, to the Court of Appeal and otherwise to the Court constituted of a single Judge. By r 212.2(1)(a) of the Uniform Civil Rules 2020 (SA) (“UCR”), the appellate jurisdiction of the Supreme Court is to be exercised by a single Judge if the appellate proceeding is an appeal against an interlocutory judgment or order of a Master. By r 212.2(1)(i) (and r 212.3 (2)) of the UCR, a single Judge may order that the appellate jurisdiction that would otherwise be exercised by the Court of Appeal (including an appeal against a final judgment of a Master) be exercised by a single Judge. I have determined that it is appropriate to make such an order in this case. The appellant seeks an extension of time to appeal and seeks to appeal “all the orders sort [sic] by the defense [sic] in case 545-14”. This potentially encompasses orders made in relation to the interlocutory application brought in 2016 to which I have referred above. I conclude below that I will refuse the application for an extension of time. Consequently, I have not considered whether those orders are interlocutory or final in nature and thus whether or not aspects of the notice of appeal would in the ordinary course be addressed by a single Judge. In any event, I do not consider that the notice of appeal warrants the consideration of the Court of Appeal as it does not raise any issues of principle or have any merit.
Extension of time
The time within which the appellant was entitled to appeal the Orders lapsed over 6 years ago.
The appellant asserts in his Notice of Appeal a wide range of reasons why an extension of time to appeal should be granted. These include the denial of proper legal representation and the withholding of information regarding the court process, including the right to appeal. The appellant alleges gross misconduct and ineffective counsel on the part of the solicitors engaged by him and the respondents, and denial of his right to a fair hearing. The appellant asserts the Orders were not served upon him and that he was not aware of what they were or meant. Further, he alleges he has sought an appeal since 2015 and that his case was dismissed without him being advised.
The appellant also states as reasons in support of an extension of time the asserted invalidity of the deceased’s will due to it being “deliberately shocking and offensive” and that the trustees are not sensible or reasonable.
In the Notice of Appeal and in his written and oral submissions, the appellant referred frequently to the deceased having committed an illegal act, being the strangling of a swan in front of his children. The Notice of Appeal and submissions also refer to risk to the lives of children and the failure of the solicitors to advise the Court of the murder of a child related to the appellant’s partner.
Appellant’s submissions
The appellant submitted that he was “under great duress during the time of the entire case”.[3] He stated he left the country due to the incident with the strangling of the swan, to protect his children. He submitted that since his return to Australia in 2015 he immediately took action to try and resolve “the circumstances”.[4]
[3] T2.10-11.
[4] T2.29-31.
The appellant raised issues with his legal representation. He stated Mr Field “just disappeared; vanished; absconded”.[5] He also stated he was “at the hands of the solicitors from day 1” and they did not want him to “expose any vexatious nature and the inadequacies of the legal system to assess his capacity in the first place, because his [the deceased’s] behaviour was clearly, clearly, clearly not acceptable to be strangling swans in front of his grandchildren and being so nasty…”.[6]
[5] T3.4-5.
[6] T3.5-12.
The appellant referred to a continual delay with the appeal due to first being asked to file an interlocutory application, then to refile a claim, and eventually, to file an appeal. He stated all that occurred without the assistance of a solicitor.
Respondents’ submissions
The respondents’ counsel submitted that the decision to grant an extension of time is at the Court’s discretion.[7] It was submitted that in exercising that discretion, the Court will have regard to the length of delay, the reason for delay, whether there is an arguable case and the extent of any prejudice to the respondents.
[7] Moody v Moody [1949] SASR 331.
The respondents’ counsel submitted there had been extreme delay of over 6 years and that to disturb the Orders “flies in the face” of the object of the UCR, set out in r 1.5. The respondents’ counsel contended that parties to litigation have a right to expect the finalisation of matters once orders have been made and the prescribed time to appeal has expired.
The respondents’ counsel submitted that if there were issues regarding the conduct of the appellant’s legal representatives, that was a matter for a separate action against those representatives.
Counsel for the respondents contends there is no arguable case because the Orders now complained of were the product of the Mediation participated in by the appellant which resulted in Orders personally signed by him. The respondents submitted that appellate jurisdiction is not enlivened where there is no live issue arising from the original judgment.[8] Counsel for the respondents asserted the executors have administered the estate in accordance with the consent judgment and there is no further dispute between the parties.
[8] Workcover Rehabilitation and Compensation Corp v Elderly Citizen Homes of SA Inc [1999] SASC 332; NZI Insurance Australia Ltd v Baryzcka & Anor (2002) 85 SASR 482.
Counsel for the respondents submitted that the other reasons in the Notice of Appeal are “unintelligible to the respondents and appear irrelevant to the exercise of the Court’s discretion”. She submitted that the grounds of appeal raised by the appellant “do not disclose any legitimate ground of appeal but rather provide a discursive and largely nonsensical account of various of the appellant’s grievances against the deceased, his legal representatives, the deceased’s legal representatives, the executors and trustees”.
Decision - Extension of time
I accept the submissions of the respondent. The material before me does not satisfy me that there are appropriate grounds upon which I should exercise my discretion to order an extension of time in circumstances in which:
1. the delay is in excess of six years;
2.the Orders were the product of the Mediation and the Terms of Compromise were signed by the appellant;
3.the appellant filed an interlocutory application in 2016 which, albeit of a somewhat different nature, raised similar matters to the matters put forward in support of the extension of time and the complaints made in this appeal; and
4.the previous interlocutory application was dismissed in 2017 after the process to which I have referred above.
I also take into consideration, as I address below, that the appellant has not made out an arguable case for appeal.
Permission to appeal
The Orders were made by consent. Pursuant to s 50(4)(a)(i) of the Supreme Court Act 1935 and r 213.1(1)(d) of the UCR, permission to appeal is required in respect of a judgment given by consent. Permission was not sought. However, I would have refused permission if it had been sought for the same reasons I have articulated above (in relation to the request for an extension of time) and below (in relation to the merits of the appeal).
Grounds of appeal
In case I am wrong in relation to the application for an extension of time, and in circumstances in which the material put on the grounds of appeal overlaps substantially with the material for the extension of time application, I have proceeded to consider the grounds of appeal.
The appellant’s Notice of Appeal states the appeal is against “all the orders sort [sic] by the defense [sic] in case 545-14”. The appellant requests the orders are “dismissed, put aside”. The Notice of Appeal seeks orders for “full payment of his entitlement. Dismissal of trustees. Full financial independence”. He also seeks costs.
The Notice of Appeal asserts at least 22 grounds of appeal on which these orders are sought. These grounds are headed “vexacious [sic]”, “integrity”, “misrepresentation”, “illegal”, “contradictory”, “validity”, “liberty”, “malpractice”, “misleading”, “unreasonable”, “non disclosure”, “incredible”, “liberty to apply”, “risk”, “land”, “title; christopher buckland brooks”, “respect”, “conflict”, “safety”, “loss of income”, “equality”, “unacceptable”, “prejudice”, “necessity”, “false allegations, privacy”, “unfair; costs”, “consequences”, and “influence”.
I sought to clarify these grounds with the appellant at the hearing of the appeal. I understand from the appellant’s oral submissions that his grounds of appeal fall into three primary categories. The first category of complaint relates to the will of the deceased. The second category of complaint relates to the way the legal representatives have dealt with what the appellant believed to be his claims. The third category of complaint is that the trustees of the Christopher Sub-Trust have not administered the trust in a manner acceptable to the appellant, in particular, that they have not acted in a financially intelligent manner. In that respect, the appellant says he “should be able to manage it and apply it properly and invest it properly, securely and safely”.[9]
[9] T11.21-23.
In respect of each of the three categories of complaint I accept the respondents’ submissions.
The appellant’s primary complaint remains a complaint against asserted inadequacy of the provision for the appellant in the deceased’s will. The appellant commenced an action for further provision and that action was resolved by consent in the manner I have referred to above. The executors have administered the estate in accordance with the Orders.
There is no material before me substantiating the appellant’s complaints against his solicitors. During the hearing, the appellant indicated he had raised the complaints with the Legal Practitioners Conduct Commissioner and the Commissioner had declined to conclude there was any basis for the assertions made. In this respect, during the hearing the appellant stated “I’m not expecting anything more but I do – it’s water under the bridge. I don’t want to take them to court”.[10] I accept the respondents’ counsel submission that, if there were issues in relation to the conduct of the appellant’s legal representatives (and I make clear that I make no comment about the merits of such complaints) it would be a matter for a separate action.
[10] T12.12-14.
The appellant complains of the conduct of the trustees of the Christopher Sub‑Trust. If there were a legitimate basis for allegations against the trustees concerning their conduct (and I make clear that I make no comment about the asserted merits of any such complaints) it would be a matter for a separate action and would not found a proper basis for an appeal by the appellant against the Orders.
Consequently, even if I had allowed the extension of time sought to appeal the Order, I would nevertheless have dismissed the appeal.
Orders
To the extent necessary, I order that the appellate jurisdiction that would otherwise be exercised by the Court of Appeal shall be exercised by me as a single Judge.
The application for an extension of time to appeal is refused.