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

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Pickrell

Details

AGLC: Clark v Pickrell [1992] TASSC 85
Case: [1992] TASSC 85
Decision Date: 3 March 1992

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Graeme Francis Clark and others brought an application against Joan Aphra Pickrell and others under the Testator's Family Maintenance Act 1912. The applicants sought an order that provision be made for them out of the estate of Clement Francis Clark, deceased. During the proceedings, the respondents sought an order for the applicants to make discovery of documents relevant to their financial affairs. The applicants argued that they should not be required to discover any documents relevant to their affairs after the deceased's death, while the respondents argued that such documents should be discovered.

The court was required to decide the issue of relevance of the documents to the applicants' financial affairs after the deceased's death. The applicants relied on Hughes v National Trustees, Executors & Agency Company of Australasia Ltd, but the court found that this case did not support the applicants' submission. The court also considered the views expressed by Dixon CJ in Coates v National Trustees Executors And Agency Co. Ltd, which stated that the facts as they exist at the time the order is made should not be left out of account. The court concluded that the applicants' submission was not sustainable.

The court ordered that the applicants deliver to the respondents a memorandum setting forth particulars of the documents of various classes relating to their financial affairs since 1 July 1989. The applicants were also ordered to make such documents available for inspection at the office of their solicitors upon reasonable notice. The court held 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 affect the exercise of the discretions conferred by the Act. The court further held that the applicants should not be exempt from the requirement to make discovery of documents relevant to their financial affairs after the deceased's death.

Orders