Coffey v O'Halloran
[2021] VSCA 29
•26 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0104
| JOHN LAWRENCE COFFEY | Applicant |
| v | |
| RUTH STANISLAUS O’HALLORAN | Respondent |
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| JUDGES: | BEACH, NIALL, T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 February 2021 |
| DATE OF JUDGMENT: | 26 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 29 |
| JUDGMENT APPEALED FROM: | [2020] VSC 649 (McMillan J) |
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WILLS AND ESTATES – Where no grant of probate despite death of deceased six years ago – Where executors in dispute over assets of estate – Where each executor alleges other in situation of conflict – Where one executor agrees to be passed over and seeks passing over of other executor and appointment of independent administrator – Where other executor objects to being passed over.
PRACTICE AND PROCEDURE – Proceeding determined without oral hearing – Proceeding determined on the papers – No cross-examination of deponents’ affidavits – Power of court to order hearing and determination on the papers – Whether appropriate for matter to be heard on the papers – Whether hearing on the papers gave rise to procedural unfairness – Whether hearing on the papers offended open court principle – Civil Procedure Act 2010, ss 7, 8, 9 and 47 – Supreme Court Act 1986, ss 129A and 129B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms R Grayson Morison | McNab, McNab & Starke |
BEACH JA
NIALL JA
T FORREST JA:
Joan Jackman Coffey (‘the deceased’) died in February 2014, a little over seven years ago. She left a will dated 26 September 2008 (‘the will’). In the will, she appointed her daughter, Ruth Stanislaus O’Halloran, her son, John Lawrence Coffey, and her accountant, Robert Henry Wald, as her executors and trustees of her estate. In March 2014, Mr Wald executed a deed of renunciation.[1]
[1]While at [2] in Re Coffey; O’Halloran v Coffey [2020] VSC 649 (‘Reasons’), it is recorded that the deed of renunciation was executed on 25 March 2015, the deed was in fact dated 25 March 2014.
In March 2014, Ms O’Halloran and Mr Coffey engaged a solicitor, John Blanch, to prepare an application for a grant of probate of the will. Mr Blanch took a number of steps in preparation for the making of an application in accordance with his instructions. Over the ensuing years, however, no application was made. Ms O’Halloran and Mr Coffey dispute which of them is responsible for this delay and their consequential failure to obtain a grant of probate.
On 4 March 2019, Ms O’Halloran filed an originating motion in the Trusts, Equity and Probate List of the Supreme Court seeking relief against Mr Coffey and Mr Blanch. In her originating motion, and relying on s 15 of the Administration and Probate Act 1958 (Vic) (‘the Act’), Ms O’Halloran sought orders that:
(a) Mr Coffey show cause why he should not, within such time as the Court may specify, bring the will into Court and, by authorising and directing Mr Blanch to do so, either prove the will or, alternatively, renounce probate thereof;
(b) in the alternative, Ms O’Halloran be entitled to prove the will;
(c) Mr Blanch deliver the original will of the deceased to the Registrar of Probates; and
(d) the costs of and incidental to the application be paid by Mr Coffey personally, without recourse to the estate of the deceased.
Mr Blanch did not take an active part in the proceeding. Ms O’Halloran (who was represented by counsel) and Mr Coffey (who appeared for himself) appeared on directions hearings before Moore J on 17 May, 19 July and 20 September 2019. During the course of these directions hearings, there was some discussion about changes and/or refinements in the relief which Ms O’Halloran was seeking against Mr Coffey.
On 20 September 2019, the matter was adjourned for a directions hearing on 11 October 2019, at which time, to use his Honour’s words, ‘a final assessment [could] be made as to what, if any, further steps [were] needed for the matter to be listed for hearing’. His Honour made orders permitting Mr Coffey to file and serve any further affidavits on which he relied:
such affidavits to be confined to the relevant issues remaining in controversy in the proceeding, namely:
(a) whether [Mr Coffey] should be passed over; and
(b)the identity and suitability of any proposed person to be appointed administrator of the estate of the deceased.
On 11 October 2019, the further directions hearing came on for hearing before McMillan J. On that day, her Honour made orders permitting Mr Coffey to file further written submissions, and Ms O’Halloran to file further written submissions in reply (various affidavits and submissions already having been filed by the parties). Her Honour then made an order which Mr Coffey says he objected to, and which Ms O’Halloran, to the contrary says was made without any such objection. Her Honour ordered that:
The application thereafter be determined on the papers.
On 2 October 2020, as foreshadowed by the order made on 11 October 2019, her Honour made orders on the papers. Her Honour ordered that Ms O’Halloran and Mr Coffey be passed over as executors of the will, and that leave be granted to Nathan Kuperholz, solicitor, to apply for a grant of letters of administration with the will annexed.[2]
[2]Reasons [94]
Mr Coffey now seeks leave to appeal from the orders made by her Honour. While he does not object to that part of the order that passes over Ms O’Halloran as an executor, he disputes the correctness of the order that results in him no longer being the deceased’s executor. His principal ground of complaint, referred to throughout his submissions in this Court and specifically identified in ground 4 of his application for leave to appeal,[3] is that her Honour, over his objection, determined the proceeding on the papers without a trial.
[3]Ground 4 provides:
Her Honour failed to convene a trial and erred by failing to test evidence causing her to rely on false and/or misleading allegations.
The proceeding at first instance
During the course of the proceeding at first instance, both sides (Ms O’Halloran and Mr Coffey) filed voluminous material in support of their respective positions, each side’s affidavits and exhibits running to hundreds of pages. The material filed disclosed serious factual disputes between the parties, and also significant animus between them. At first instance, Mr Coffey characterised Ms O’Halloran’s evidence as containing numerous ‘false allegations, assumptions and deceptive assertions’, involving a ‘cherry-picked selection of documents’.
At the first directions hearing (17 May 2019), Moore J raised the prospect with the parties that the proceeding be resolved by having both parties stand down as executors and an independent executor appointed. Counsel for Ms O’Halloran said that her client was ‘very open to that suggestion’. Mr Coffey said that he was ‘open to consider it’.
Later in discussion, his Honour said that if the matter could not be sorted out, and the parties could not find a way to administer the estate jointly, ‘the sensible course … would be to look at getting a third party to do it’. The judge said that otherwise the Court stood ready to deal with [Ms O’Halloran’s] application and that Mr Coffey would have a ‘full opportunity to be heard’ on the application. Moore J then adjourned the proceeding so as to permit the parties to discuss the further conduct of the proceeding.
On 16 June 2019, Mr Coffey proposed that Michael Coffey (‘a family member and beneficiary [under the will]’) and Rod Jones (‘a family friend with probate and executor experience’) be appointed as joint administrators of the estate. On 4 July 2019, Ms O’Halloran’s solicitor, Mark Maier, rejected that proposal, saying:
Michael Coffey is a beneficiary and sibling, whom I am instructed is aligned to your interests.
Rod Jones … is the husband of Frances Coffey, another beneficiary and sibling whom I am instructed is aligned to your interests.
Neither of the people who you have put forward have the degree of independence required of representative office as an administrator.
Mr Maier then suggested that Nathan Kuperholz, a solicitor who had been appointed by the Supreme Court to be the administrator of other estates, was an appropriate person who was prepared to accept the appointment subject to the acceptance of a disclosure statement provided by him (Mr Kuperholz) and the signing of a costs agreement.
At the directions hearing on 19 July 2019, counsel for Ms O’Halloran told the Court that her client’s position was now that both executors (Ms O’Halloran and Mr Coffey) should be passed over and that an independent administrator should be appointed. The Court was also told that the parties had been unable to agree on an appropriate independent administrator. Orders were made for the filing of affidavits and affidavits in reply.
The matter returned for directions on 20 September 2019. At that hearing, counsel for Ms O’Halloran sought final orders for the passing over of both executors, and the appointment of Mr Kuperholz. Mr Coffey opposed the making of those orders, saying with respect to the appointment of Mr Kuperholz that his appointment would be ‘excessively expensive’.
As to the change in the nature of the relief sought by Ms O’Halloran, her counsel submitted that Mr Coffey had been on notice about the relief that was now being sought against him since the previous directions hearing. The judge accepted this submission, and said that he proposed to refer Ms O’Halloran’s claim for final relief to be ‘heard … at the earliest possible date, by an associate justice’.
A little later in the directions hearing, Mr Coffey asked for the opportunity to file further affidavit material. Counsel for Ms O’Halloran did not oppose Mr Coffey being given that opportunity, but said that the judge should limit the order to ‘the live issues in dispute’. Counsel identified the issues in dispute as being ‘Mr Coffey’s apparent conflicts in respect of certain transactions’ and the identity of an appropriate independent person to be appointed as the administrator of the estate.
There was then further debate between the parties and the judge. Mr Coffey wanted the ability to propose someone other than Mr Kuperholz to be the administrator. The judge accepted that Mr Coffey should have this opportunity.
Counsel for Ms O’Halloran then sought to have the judge confine his order so as to limit the evidence that Mr Coffey could rely on to issues concerning his alleged conflicts of interest. Ultimately, the judge did not accede to the entirety of counsel’s submission. His Honour said:
The questions of what evidence is relevant and what should go in as evidence at the trial is a matter for the trial judge.
As we have already observed, the matter came on for final directions before McMillan J on 11 October 2019. Matters of history were rehearsed. Her Honour noted that Ms O’Halloran’s position was that ‘she agrees and accepts that it’s in the interests of the administration of the estate that someone independent be appointed, instead of [Ms O’Halloran] and [Mr Coffey]’. There was then the following exchange between Mr Coffey and the judge:
MR COFFEY: My application would be that this go to a trial and that I get a chance to defend myself.
HER HONOUR: You had a chance to defend yourself. You’ve filed submissions. So you’ve got — the passing over application has been on foot for some time.
After some discussion about s 15 of the Act, Mr Coffey asked for leave to file further submissions. The judge indicated that she would permit that course. There was then the following exchange between her Honour and Mr Coffey:
HER HONOUR: All right, and I will then determine the issue on the papers so you won’t need to come and appear again. Is that in order for you?
MR COFFEY: Yes, I suppose, Your Honour. But what I would like to do is to have a trial, as was indicated by the previous Justice Moore.
HER HONOUR: Yes.
MR COFFEY: But he was inclined to put it down for trial.
HER HONOUR: Yes, but if you’re putting in written submissions, any trial would be exactly what the submissions say. Do you follow? I’m trying to make it shorter and easier for you, so that — and also resolve it so that if you had a trial, you would be telling me what you’ve said in your written submissions.
MR COFFEY: We would also be discussing the reason why it’s taken five years, and - - -
HER HONOUR: Yes, but you’ll be putting that in your submissions. You’ve put something in in the form of the documents that are already there.
MR COFFEY: Yes. Yes, Your Honour.
HER HONOUR: And you’ll be simply adding it. So, I would have both of those in the written submissions. So, if you had a trial, you would be repeating what is in the written submissions. Now, written submissions are important in this because you’re self-represented, and Ms Grayson-Morison, who’s for the plaintiff, needs to know what you’re going to be saying before the trial, or — and that’s why if you’ve got it down in writing, she knows what you’re going to be saying and she can address that. You can’t just pop in and say it first up at the trial. So, generally a s 15 application does not require a trial in this context of what this application is about.
MR COFFEY: I was under the opinion that the plaintiff is prosecuting this case, Your Honour, and would normally go first.
HER HONOUR: The plaintiff seeks someone independent.
MR COFFEY: Yes, Your Honour, and I submit that that’s a possibility. I’m continuing making the inquiries in that regard. But in the meantime I needed to defend myself against - - -
HER HONOUR: The court makes the decision as to who would be the independent person.
At the conclusion of argument, her Honour made orders permitting Mr Coffey to file any written submissions upon which he sought to rely in opposition to Ms O’Halloran’s application, and Ms O’Halloran to file submissions in reply. As we have already said, she then ordered that the application ‘thereafter be determined on the papers’.
Ms O’Halloran’s submission at first instance was encapsulated in a paragraph of her written submissions filed on 23 September 2019 as follows:
The estate has not been administered for over five years, [Mr Coffey] is conflicted and there is ongoing disputation between the executors as well as the beneficiaries. As well, [Mr Coffey] has intermeddled in the estate and refused to take out a grant of probate. Having regard to the due administration of the estate and the interests of the beneficiaries it is appropriate to appoint an independent administrator.[4]
Ms O’Halloran submitted that Mr Kuperholz was the appropriate independent administrator to be appointed.
[4]Paragraph 27 of ‘Updated Submissions of the Plaintiff’ filed 23 September 2019 (citation omitted).
In his written submissions,[5] filed on 18 October 2019, Mr Coffey submitted that Ms O’Halloran’s submissions were based on false statements. He summarised his position as follows:
I have done nothing wrong. I have complied with the statutory provisions of the Administration & Probate Act 1958 and used common sense while trying to accommodate [Ms O’Halloran]. … I have no conflicts with the estate and there is no reason why I should be passed over. Passing over me is an expensive option that is not in the beneficiaries’ best interests. Five beneficiaries (representing 95% ownership of the estate) do not want me passed over.[6]
[5]‘Submission of John Lawrence Coffey JLC 016’ filed 18 October 2019.
[6]Ibid [41].
Mr Coffey advanced an alternative case in the event that the Court decided he should be passed over. Mr Coffey deposed having obtained fee estimates from an accountant (Ray Richardson) and a solicitor (Andrew Bell) who were each prepared to act as an administrator of the estate. Mr Coffey noted that while Mr Richardson had given an estimate of $18,000 and Mr Bell had given an estimate of $20,000, Mr Kuperholz had, to date, been ‘unwilling to provide an estimate’.
Primary judge’s reasons
The primary judge commenced her reasons noting that, while the deceased died in February 2014, no application for a grant of probate had yet been filed with the Court. The judge said that the exact value of the estate was unknown, however, Ms O’Halloran’s best estimate, based on 2019 values, was that the assets were valued ‘in the vicinity of $6.9 million’.[7] The judge then set out the background of the proceeding[8] and its procedural history.[9]
[7]Reasons [3].
[8]Ibid [5]–[10].
[9]Ibid [11]–[22].
Next, the judge referred to applicable legal principles,[10] Ms O’Halloran’s affidavits and submissions[11] and Mr Coffey’s affidavits and submissions.[12] The judge then dealt with reply submissions that had been filed on behalf of Ms O’Halloran.[13]
[10]Ibid [23]–[26].
[11]Ibid [27]–[41].
[12]Ibid [42]–[55].
[13]Ibid [56]–[59].
The judge commenced her analysis of the issues by noting that Mr Coffey had been directed to the self-represented litigants coordinator within the Court for assistance, and that he had also been given the opportunity to seek legal advice.[14] Her Honour then observed that Mr Coffey had also been granted ‘numerous adjournments which provided him with the opportunity to seek legal advice, if he wished, as well as substantial time to file any documents and affidavits in support of his opposition to [Ms O’Halloran’s] application’.[15]
[14]Ibid [60].
[15]Ibid [61].
Under the heading ‘Procedural and other objections of [Mr Coffey]’, the judge dealt with a number of submissions made by Mr Coffey.[16] Under the subheading ‘Trial of proceeding’, her Honour said:
The first defendant [Mr Coffey] submitted that he was summarily refused a trial, with the Court opting to determine the proceeding on the papers. At the September 2019 directions hearing, the Court foreshadowed the possibility of setting the proceeding down for hearing, possibly before an Associate Justice. However, on that day the first defendant sought an adjournment to file further material. At the last directions hearing, the first defendant said that he wanted a trial on the basis that he had a ‘chance to defend himself’. It was explained to him that passing over applications could also be determined on the papers, that he would be given additional time to file any further submissions, and that in this way he could defend his position. Orders were subsequently made for the application to be determined on the papers and for the filing of written submissions. That this matter has been considered on the papers has caused no unfairness to the first defendant, who was given ample opportunity to defend his position through his affidavits and submissions.[17]
[16]Ibid [62]–[72].
[17]Ibid [68].
The judge then turned to the question of whether Mr Coffey should be passed over.[18] In the course of that analysis, the judge referred to the conflicts alleged by Ms O’Halloran against Mr Coffey as follows:
The first defendant [Mr Coffey] denies the substantial number of conflict issues concerning him advanced by the plaintiff. In the ordinary course, a potential conflict of interest would not justify the first defendant being passed over. In Uniting Church in Australia Property Trust (NSW) v Millane, Windeyer J observed that not infrequently an executor will have some conflict, such as being a debtor to the estate. In this case, however, the alleged conflicts are numerous and substantial. The conflicts are merely denied by the first defendant without any reasons being provided by him. There is a strong likelihood that he would continue to maintain that position if he became the sole executor and would not approach his role with the requisite impartiality. This, in turn, would likely lead to further litigation, meaning further delays and cost to the estate.[19]
[18]Ibid [73]–[85].
[19]Ibid [79] (citation omitted).
The judge also considered the issues of delay,[20] the wishes of the deceased[21] and the wishes of the other beneficiaries as disclosed in the written material.[22] Having considered all of these matters, the judge expressed her conclusions, in the following terms:
There is substantial conflict between the executors that has caused serious delay in the administration of the estate. The parties have not been able to agree on the inventory of assets and no grant has been obtained. Even if a grant were obtained by one or other of the executors, there can be no confidence that the estate would be administered in a timely, efficient and impartial manner.
The plaintiff [Ms O’Halloran] has agreed to be passed over. The first defendant’s explanation for his delay was that he disagrees with many matters, principally the draft inventory of assets and liabilities. The first defendant does not possess the necessary impartiality to navigate these conflicts and the issues he raises with the plaintiff. He failed to provide any response of substance to the alleged conflicts of interest in him administering the estate. There is a compelling need for the estate to be administered in a timely manner with the focus on the due administration and distribution of the estate. Accordingly, the first defendant will be passed over.[23]
[20]Ibid [74]–[76].
[21]Ibid [80].
[22]Ibid [81]–[83].
[23]Ibid [84]–[85].
Having determined that Mr Coffey would be passed over, the judge then turned to his proposal that Michael Coffey and Rod Jones should be appointed as joint administrators of the estate.[24] Her Honour concluded that Michael Coffey and Rod Jones were ‘either a beneficiary or a partner of a beneficiary of the estate’ whose interests were aligned with Mr Coffey, and were thus conflicted. Her Honour concluded that they were not suitable candidates for appointment as independent administrators of the estate.[25]
[24]Ibid [86]–[89].
[25]Ibid [89].
Finally, her Honour turned to Ms O’Halloran’s proposal that Mr Kuperholz be appointed, and Mr Coffey’s proposal that Mr Bell and/or Mr Richardson be appointed.[26] Her Honour concluded that it was unlikely that the amounts referred to in the cost estimates of Mr Bell and Mr Richardson would be sufficient to resolve the issues in dispute between the parties.[27] Her Honour then recorded that Mr Kuperholz had been unable to provide an estimate of his total costs ‘without knowing more about the current position of the estate’.[28] She also observed that Mr Kuperholz had stated that, if appointed, he would be prepared to provide estimates from time to time. She also observed that Mr Kuperholz’s terms were set out in an email which was in evidence. Having made these observations, her Honour said:
Mr Kuperholz is an experienced practitioner in the area of estate administration, including in the context of ongoing family disputes. He has been appointed by the Court as an independent administrator in the past. The Court is satisfied that he has the appropriate expertise and skills to properly manage the administration of this estate.[29]
[26]Ibid [90]–[93].
[27]Ibid [91].
[28]Ibid [92].
[29]Ibid [93].
The application for leave to appeal
In his application for leave to appeal, Mr Coffey identified seven proposed grounds as follows:
1.Her Honour erred by passing over [Mr Coffey] as an executor appointed under the will of [the deceased] without sufficient cause.
2.Her Honour erred by allowing [Ms O’Halloran] to rely on the delay before probate that [Ms O’Halloran] had caused.
3.Her Honour erred when she failed to apply the statutory provisions of s 15 [of the Act] that provides remedies for both the applicant for administration and the respondent executor.
4.Her Honour failed to convene a trial and erred by failing to test evidence causing her to rely on false and/or misleading allegations.
5.Her Honour erred by failing to properly consider the beneficiaries’ choice of administrator when she relied on the untested evidence of the highly conflicted [Ms O’Halloran] to dismiss the beneficiaries’ choice.
6.Her Honour erred by failing to properly consider the beneficiaries’ choice of administrator when she relied on the untested evidence of the highly conflicted [Ms O’Halloran] to dismiss the beneficiaries’ choice.
7.Her Honour erred by not directly consulting with the beneficiaries when it came to choosing an administrator, when it (sic) the beneficiaries were clearly waiting to be heard.
As part of his application for leave to appeal, the applicant identified five ‘questions of law and procedure’. The first question was as follows:
1. Does a person in Victoria have the right to a trial in a Court of Record?
Consideration
Ms O’Halloran commenced her proceeding in the Trial Division against Mr Coffey seeking relief under s 15 of the Act. The principal ground upon which she sought relief was that there had been delay by Mr Coffey in providing instructions that would enable an application for probate to be made. Ms O’Halloran’s allegations as to the cause and reasons for the delay have, at all times, been disputed by Mr Coffey.
At and following the first directions hearing, Ms O’Halloran refocused her claim to one that sought the passing over of both executors (Ms O’Halloran and Mr Coffey) because of alleged conflicts of interest. Mr Coffey was not happy with this course. His case has always been that nothing he has done justifies him being passed over, and that he has no conflicts which would otherwise prevent him from being an executor of the estate.
The case which Ms O’Halloran ultimately wished to run at first instance was a relatively narrow one: there were alleged conflicts of interest; the conflicts did not have to be resolved; without testing either side’s evidence about the alleged conflicts, there was sufficient material to show that Ms O’Halloran and Mr Coffey should be passed over in favour of the appointment of an independent administrator; Ms O’Halloran consented (reasonably) to being passed over, while Mr Coffey (unreasonably) resisted being passed over; and the appropriate candidate for that appointment as an independent administrator was Ms O’Halloran’s choice, Mr Kuperholz.
On the other hand, Mr Coffey wanted to run a wider case which would require each side’s allegations of conflict and disentitling conduct to be tested by cross-examination. By such a process (conventionally, a trial) Mr Coffey wished to demonstrate that there was no substance in Ms O’Halloran’s contentions that he had any relevant conflicts, or that there was any other reason why he should be passed over as an executor of the estate.
There are many reported cases involving courts dealing with issues of costs, the form of orders that should be made following a trial, and relatively straightforward interlocutory applications, on the papers and without the need for appearances by the parties. However, even in some of these instances, determinations on the papers have subsequently been overturned on the basis that they involved a denial of procedural fairness. An example of such a case is Joubert v Campbell Street Theatre Pty Ltd.[30]
[30][2011] NSWCA 302 (‘Joubert’).
Joubert was an appeal from orders as to costs of a proceeding brought by the appellant liquidator. The primary judge made the costs orders on the papers despite the liquidator seeking an oral hearing. Allsop P, with whom Campbell and Macfarlan JJA agreed, said:
The provision of procedural fairness to a litigant is a fundamental incident of the judicial process. …
With the utmost respect to the learned primary judge, his Honour should not have denied Mr Joubert a hearing in circumstances where to find against him could only be done by findings either as to the competence or honesty of the conduct of his administration of the liquidation, and to do so was a denial of a species of property right.
…
The first respondent meets these contentions head on by submitting that the court should be persuaded that there could be no utility in the giving of a hearing to Mr Joubert to lead the evidence that he identifies because it could not possibly have affected the outcome: see Stead v State Government Insurance Commission. This is not the occasion to discuss at any length the reach and content of Stead: see generally in the context of administrative law, M I Aronson et al, Judicial Review of Administrative Acts, and its analogous extension to a context of the exercise of judicial power. It is sufficient to say that if a litigant has been denied a hearing by the court, a hearing which takes away a property right and which reflects upon the conduct of an office, the court would be extremely reluctant to engage in any fine balancing to identify the likely outcome of the denied hearing. This is particularly so when questions of fact, valuation and judgment are involved.
Even if it be thought that the material Mr Joubert put forward may not have been particularly persuasive, it remains nevertheless that he was denied the opportunity to place that material before the primary judge. He may have been cross-examined. That may have weakened his position. That may, contrary to the cross-examiner’s intent, have strengthened it. These are the vagaries of a hearing.[31]
[31]Ibid [10]–[11], [14]–[15] (citations omitted).
There is a paucity of authorities disclosing any power in a court to conduct a trial on the papers. The Civil Procedure Act 2010 (‘the CPA’) arguably contains some provisions which might encompass the possibility of a trial being conducted on the papers. Those provisions are ss 7(1), 8(1), 9(1)(g) and 47(3)(e)(iii), which relevantly provide:
7 Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
8 Court to give effect to overarching purpose
(1)A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers …
9 Court's powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(g) dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
47Judicial powers of case management—overarching purpose and active case management
(1)Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made—
(a) in the interests of the administration of justice; or
(b) in the public interest.
(2)A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of—
(a)the management and conduct of any aspect of a civil proceeding; or
(b) the conduct of any party.
(3)Without limiting subsection (1) or (2), a court may actively case manage civil proceedings by—
(e)controlling the progress of the civil proceeding, including, but not limited to—
(iii)dealing with the civil proceeding without the parties needing to attend court.
However, nothing in these sections expressly permits the conducting of a trial on the papers. While s 47(3)(e)(iii) refers to the possibility of a court ‘dealing with the civil proceeding without the parties needing to attend court’, it is at least arguable that that provision relates only to the case management of a proceeding — rather than the hearing of a trial.
The only other statutory provisions that might have some relevance to the issue are those contained in s 129B of the Supreme Court Act 1986. Section 129B was inserted into the Supreme Court Act by the COVID-19 Omnibus (Emergency Measures) Act 2020. It came into force on 25 April 2020, a little over six months after her Honour made the order that Ms O’Halloran’s application would be determined on the papers. Section 129B permits a court to decide ‘any issue (other than a prescribed issue) in any proceeding, or determine any proceeding (other than a prescribed proceeding), entirely on the basis of written submissions and without the appearance of the parties … if the Court is satisfied that it is in the interests of justice to do so … and … whether or not the parties consent to the Court doing so’.
We should note that, as provided in s 129A, the purpose of s 129B ‘is to temporarily change the operation of [the Supreme Court Act] in response to the COVID-19 pandemic’. Moreover, while s 129B came into force before her Honour determined Ms O’Halloran’s application, there is no suggestion that her Honour relied on the section as a basis for determining the proceeding on the papers and without an oral hearing.
For completeness, we should also note that s 129B(3) of the Supreme Court Act provides that nothing in s 129B ‘affects any other power the Court has to decide an issue or determine a proceeding entirely on the basis of written submissions and without the appearance of the parties’. The reference to ‘any other power’ is obviously a reference to a power which might have existed prior to the pandemic (and continues to exist).
Accepting, for present purposes, that there may be circumstances in which a court could order a trial of a proceeding ‘on the papers’,[32] over the objection of a party, such circumstances must, in our view, be rare. Moreover, it would be difficult to see how any such order could ever be made in a case involving disputes of fact of any significance, and where one of the parties wished to cross-examine another.
[32]As to the different possible meanings of the expression ‘on the papers’, see Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 446 (per Brooking JA).
As French CJ explained in Hogan v Hinch,[33] an essential characteristic of courts is that they sit in public which subjects court proceedings to public and professional scrutiny and serves to maintain public confidence in the Courts. Although open justice in that sense is not absolute, any departure can only be justified on compelling grounds and where necessary for the administration of justice. The high standard required will not be met merely because it is convenient, or because it might result in savings of time and cost. Similarly, a hearing in open court cannot be avoided simply because there might exist a pathway of reasoning that avoids deciding contested questions of fact.
[33](2011) 243 CLR 506; [2011] HCA 4 [20]-[21]
Counsel for Ms O’Halloran commenced her oral submissions by saying that it was to be noted that ‘Mr Coffey … consent[ed] to the matter being determined on the papers’. We do not agree. While it is true that the first part of Mr Coffey’s answer to her Honour’s question about the matter being determined on the papers was, ‘Yes, I suppose’, Mr Coffey then immediately said that he would like to have a trial ‘as was indicated by … Justice Moore’.
When one reads the whole of the transcript of the hearing on 11 October 2019, it seems plain to us that Mr Coffey’s real position was that there should be a trial so that he could defend himself from the allegations made by Ms O’Halloran in her affidavit material. That position became even clearer once Mr Coffey filed and served written submissions.
Counsel for Ms O’Halloran submitted that the court had power to determine her application on the papers. It was submitted that it was not out of the ordinary for applications under s 15 of the Act to be determined in this manner. At one point in her argument, counsel appeared to rely upon Hansen J’s decision in Shaw v Blanchett,[34] as supportive of the approach taken by her Honour. In our view, Shaw provides no support for the proposition that a s 15 application, where there are factual disputes between the parties, may (or should) be determined on the papers. Indeed, as we pointed out in argument, the application in Shaw itself was determined following an oral hearing in court.
[34][2006] VSC 295 (‘Shaw’).
In dealing with the issue of whether there was an error on the part of McMillan J in ordering that Ms O’Halloran’s application be determined on the papers, counsel for Ms O’Halloran sought to make two further points:
(1)Her Honour did not err in ordering that the matter be dealt with on the papers because the factual disputes Mr Coffey wished to litigate had been made irrelevant by determinations made by Moore J at earlier hearings, which determinations had confined the issues in the case so as to limit the question in dispute to whether Mr Coffey should be passed over because Ms O’Halloran asserts that he is conflicted. On such a limited case, the facts which Mr Coffey sought to put in issue were submitted to be irrelevant.
(2)Even if it could be said that there was some error involved in ordering Ms O’Halloran’s application to be determined on the papers, leave to appeal should be refused because, on all of the material, no different ultimate order than that made on 2 October 2020 could have been made.[35]
[35]Cf Stead v State Government Insurance Commission (1986) 161 CLR 141 (‘Stead’).
As to counsel’s first point, no order was made by Moore J at any of the hearings prior to 11 October 2019 that limited the scope of the proceeding, or determined against him any of the matters which Mr Coffey wished to contest. Further, any such order would have been one made on an interlocutory application within the meaning of Rule 64.36(6) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’); and, as that rule provides, this Court’s powers on appeal are not limited by reason of any such order that might have been made.
Put simply, notwithstanding what might have been said at earlier directions hearings, the question remains as to whether the orders ultimately made on 2 October 2020 should be set aside because Mr Coffey was denied the ability to contest allegations made against him and to run a case that there was no basis for the Court to grant any relief against him. This was plainly the course Mr Coffey wished to take. So much was made clear by him during the various directions hearings and in his written submissions at first instance. It is no answer to say that her Honour did not finally resolve any of the factual matters in contest between the parties against Mr Coffey, and based her decision on the existence of disputes between the parties. Unless the issues were narrowed in the course of the trial, Mr Coffey was entitled to an opportunity to demonstrate (by cross-examination or otherwise) the falsity of the allegations made against him and the lack of any basis for him being passed over.
We turn to counsel’s second point. In seeking to conduct the proceeding on the papers without resolving the contested allegations of the parties, her Honour was undoubtedly motivated by the best intentions in seeking to have the proceeding determined as expeditiously and fairly as possible so as to minimise further costs — both in respect of the proceeding and the future administration of the estate. Additionally, a reading of the material may have suggested to her Honour that the only realistic outcome was for the executors to be passed over and an independent person appointed as the administrator. As likely as the orders ultimately made might have been, we are unable to conclude that the orders of 2 October 2020 were the only orders that could be made. As was observed by Megarry J in John v Rees:
As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that by discussion, suffered a change.[36]
[36][1970] 1 Ch 345, 402.
In written submissions filed, with leave, following oral argument, counsel for Ms O’Halloran submitted that the court had broad powers under the Rules in relation to giving orders and making directions as to the conduct of a proceeding. Rules 34.01, 40.04(2) and 49.01(1) were prayed in aid of an argument that the court had power to make an order of the kind made on 11 October 2019. Amongst other things, it was said that the order was conducive to the effective, complete, prompt and economical determination of the proceeding.[37]
[37]Cf Rule 34.01 of the Rules.
In addition, counsel relied upon ss 7, 8 and 9 (and in particular, the objects referred to in s 9) of the CPA, to which we have already referred.
The existence of the various provisions relied upon by counsel cannot be doubted. It is the scope of their operation in a case which involved disputes of fact that were not capable of being resolved merely by the examination of competing affidavits. There should have been a trial. No matter how laudable the objective of providing a speedy, efficient and less expensive resolution of the matter, ultimately we are compelled to the conclusion that the determination of the proceeding on the papers was not a course that was open to the judge. It offended the open court principle and involved a denial of procedural fairness. Moreover, it is no answer to say (as was submitted by counsel) that Mr Coffey ‘had a year to agitate for an oral hearing [presumably between 11 October 2019 and 2 October 2020] but did not do so’. Read fairly, the material discloses that Mr Coffey wanted a trial.
Having regard to our conclusions set out above, it is neither necessary nor appropriate for us to deal with the other matters raised by Mr Coffey in his proposed grounds of appeal.[38]
[38]Cf Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.
Conclusion
In our view, the applicant was wrongly denied the opportunity to contest allegations made against him, and to establish that there was no basis upon which he should be passed over as an executor of the estate. We would grant leave to appeal, allow the appeal and order the matter to be remitted to the Trial Division for a hearing on all issues.
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