Clark v Pickrell

[1992] TASSC 85

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Clark & Ors v Pickrell & Ors [1992] TASSC 85; B4/1992

PARTIES:  CLARK, Graeme Francis
  v
  PICKRELL, Joan Aphra

FILE NO/S:  M109/1991
DELIVERED ON:  3 March 1992
JUDGMENT OF:  Zeeman J

Judgment Number:  B4/1992
Number of paragraphs:  7

Serial No B4/1992

List "B"

File No M109/1991

GRAEME FRANCIS CLARK & ORS. v JOAN APHRA PICKRELL & ORS

REASONS FOR JUDGMENT  ZEEMAN J

3 March 1992

1. By their originating application the applicants seek an order that provision be made for them out of the estate of Clement Francis Clark, deceased, pursuant to the provisions of the Testator's Family Maintenance Act 1912 ("the Act"). During the course of a pre-trial conference the parties agreed that I should deal with an application by the respondents for an order that the applicants make discovery of documents of various classes relating to their financial affairs. The applicants are under no obligation to make discovery unless an order is made. The proceedings not being an action, the provisions of the Rules of the Supreme Court, O 33, rr12 and 13, have no application.

1. The parties are agreed that it is appropriate that an order be made. They are agreed as to the nature of the documents to be discovered, all of which are relevant to the financial position of the applicants. However, the applicants submit that they should not be required to discover any document relevant to their affairs as they existed at any time after the death of the deceased. On the other hand, the respondents submit that such documents ought to be discovered. The issue between the parties is one of relevance. The applicants submitted that documents relevant to the financial affairs of the applicants as they existed at any time after the death of the testator are irrelevant. The basis of that submission was that the financial position of the applicants as at the date of trial, or as at any date subsequent to the date of death, could not affect the exercise of the discretions conferred by the Act.

1. In support of that submission, the applicants relied upon Hughes v National Trustees, Executors & Agency Company of Australasia Ltd (1978 – 1979) 143 CLR 134. I have carefully read the judgments in that case. I have been unable to glean from them anything which might be said to support the submission made by the applicants.

1. I enquired from the applicants' solicitor as to whether this matter is the subject of any discussion in Davern Wright's work Testator's Family Maintenance in Australia and New Zealand. I was told that it is not. However, a perusal of the third edition of that work discloses that the learned author, in discussing the circumstances to be considered in arriving at the quantum of an order, expresses the view (at p.132) that it "[i]s not a discretion to give more than what is adequate for proper maintenance in the circumstances as they have come to exist at the time when the order is made." For that proposition the learned author cites Coates v National Trustees Executors And Agency Co. Ltd. (1956) 95 CLR 494, per Dixon CJ at 509.

1. It is only if a relevant person has been left without adequate provision for his proper maintenance and support in the terms of s3(1) of the Act that there is conferred a discretion to order that provision be made for that person out of the estate of the deceased person. In dealing with the exercise of that discretion, Dixon CJ said:

"The discretion conferred by these words is of course limited by the purpose and scope of the legislation. And what has been just said bears upon the purpose and scope of the legislation. But it would not be a proper exercise of discretion if the facts as they exist at the time the order is made were left out of account. If a child, through some accession of fortune, had ceased before the hearing of the application to require any further provision for his maintenance or support it would not be a proper exercise of discretion to make an order in his favour on the ground that it was only after his father's death that his needs were thus met. It is not a discretion to give more than what is adequate for proper maintenance in the circumstances as they have come to exist."

1. The view expressed by Dixon CJ appears to have been shared by all the members of the court and clearly I am bound by it. For the sake of completeness, I also refer to Dun v Dun (1957) 99 CLR 325 at 331, Lacey v Hogan Unreported No 691977 and Fitzpatrick v Gillespie Unreported No 891977. All those cases are authority for the proposition that the submission put for the applicants is not sustainable.

1. Accordingly, the orders which I propose are as follows:

1That within twenty–one days the applicants deliver to the respondents a memorandum setting forth particulars of the documents of the following classes in so far as they relate to the financial affairs of any one or more of the applicants since the 1st day of July 1989:

(a)documents of title and documents evidencing title to any real or personal property or chose in action;

(b)      bank statements and bank books;

(c)      life insurance policies;

(d)      superannuation entitlements;

(e)      wages, salaries and other income.

2That the applicants make such documents available for inspection at the office of the applicants' solicitors upon reasonable notice.