Coric v Grotto; Nelson v Grotto

[2007] NSWSC 1080

CITATION:	Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of Late F.A. Grotto & 2 Ors [2007] NSWSC 1080
HEARING DATE(S):	25/09/2007
JUDGMENT DATE :	25 September 2007
JURISDICTION:	Equity
JUDGMENT OF:	Bryson AJ at 1
DECISION:	1) Order pursuant to s51(1) of the Supreme Court Act 1970 that the appeal proceedings be removed into the Court of Appeal; 2) I direct that the defendants make an application to the Registrar of the Court of Appeal for directions relating to the further conduct of the appeal proceedings including conduct of an application for leave to appeal; 3) I order that the costs of the proceedings before me follow and be paid in accordance with any order for costs to be made by the Court of Appeal upon the application for leave to appeal or on any appeal; 4) Of my own motion I order pursuant to s26 of the Civil Procedure Act 2005 that the whole of the proceedings be referred to mediation by a mediator; 5) I reserve to each party leave to apply to me on 2 days’ notice for directions in detail relating to the appointment of a mediator and the conduct of mediation; 6) I order that the plaintiff has leave to file amended summons so as to join as an additional defendant Boyeli Pty Ltd and to amend the relief accordingly; 7) I direct that the amended summons be filed within 10 days; 8) Costs of the amendment are defendants’ costs in the proceedings.
CATCHWORDS:	APPEAL – Practice and procedure – Appeal from decision of Associate Judge not to grant summary judgment in proceedings under the Family Provision Act 1982 (NSW) – Whether appeal lies to single judge of a Division of the Supreme Court or to the Court of Appeal – Whether motion in relation to summary judgment constitutes proceedings under the Family Provision Act or Pt 13 Uniform Civil Procedure Rules 2005 (NSW) – Pt 60 r 17 Supreme Court Rules 1970 (NSW), considered
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) s20 Supreme Court Act 1970 (NSW) s101(2)(e) Supreme Court Rules 1970 (NSW) Pt 60 r 17 Uniform Civil Procedure Rules 2005 (NSW) Pts 13, 49
CASES CITED:	Wickstead v Browne (1992) 30 NSWLR 1 Gorman v Gorman [2003] NSWSC 647
PARTIES:	6189/06 Fiona Anne Coric - Pltf Darren Anthony Grotto - 1st Dft Graham Leslie Windridge - 2nd Dft Graeme Lindsay Crampton - 3rd Dft 6190/06 Danielle Antoinette Nelson - Pltf Darren Anthony Grotto - 1st Dft Graham Leslie Windridge - 2nd Dft Graeme Lindsay Crampton - 3rd Dft
FILE NUMBER(S):	SC 6189/06 and 6190/06
COUNSEL:	P.R. Sternberg - Pltfs/Respondents M.S. Willmott SC and M.W. Sneddon - Defendants/Applicants
SOLICITORS:	Elias Gates & Associates - Pltfs/Respondents Coleman & Greig - Dfts/Applicants
LOWER COURT JURISDICTION:	Supreme Court (Associate Judge)
LOWER COURT FILE NUMBER(S):	6189/06 and 6190/06
LOWER COURT JUDICIAL OFFICER :	Macready AsJ
LOWER COURT DATE OF DECISION:	15/06/2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

TUESDAY 25 SEPTEMBER 2007

6189/06 FIONA ANNE CORIC v DARREN ANTONY GROTTO - RE: ESTATE OF THE LATE FREDERICK ATILLIO GROTTO & 2 ORS
006190/06 - DANIELLE ANTOINETTE NELSON v DARREN ANTHONY GROTTO - RE: ESTATE OF THE LATE FREDERICK ATILLIO GROTTO & 2 ORS

JUDGMENT

1 BRYSON AJ: I have heard together two notices of motion for appeal in proceedings 6189/2006 in which the plaintiff is Mrs Fiona Anne Coric, and proceedings 6190/2006 in which the plaintiff is Mrs Danielle Antoinette Nelson. Each plaintiff applies for provision out of the estate of her late father Frederick Atillio Grotto, and the first defendant Mr Darren Anthony Grotto is their brother and the son of the testator. The other defendants are co-executors with Mr Grotto. The appeals are brought from the decision of Macready AsJ of 15 June 2007 on notices of motion filed on 16 February 2007 by the defendants, now the proposed appellants, claiming summary dismissal of each of the proceedings under Part 13 of the Uniform Civil Procedure Rules. For reasons stated at length Macready AsJ dismissed the motions for summary dismissal with costs. I felt some concern whether appeal from that decision lies to a judge in the Equity Division or to the Court of Appeal, and heard submissions from counsel on both sides after I expressed a wish that the parties consider that subject.

2 Decision on the path for appeals has significant implications. It is clear that in the Court of Appeal there is a need for leave to appeal because of the interlocutory character of the decision: see Supreme Court Act 1970 s.101(2)(e). There is no requirement for leave if the path for appeals is to a single Judge. The interlocutory character of a decision under Pt 13 refusing summary dismissal is altogether clear; see Wickstead v Brown (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA).

3 Involved in the proposed appeals is a question of law under s.20 of the Family Provision Act 1982. I do not attempt to state exhaustively what would be in issue in the proposed appeal but counsel’s submissions have shown that the issues include the operation together of subs.(1) and (2) of section 20 and the influence of the enumeration of considerations in subs.(2) on the discretion conferred by subs.(1) to disregard the interest of eligible persons. I am not speaking finally but my impression is that if subs.(2) states exhaustively the considerations on which discretion is to be exercised and carries the implication that in the absence of the factors in subs.(2) the court is to disregard the interests of the eligible persons mentioned, it would be difficult to uphold the decision under appeal. If the contrary position is fairly arguable the case is not one where summary dismissal is appropriate. There may be other issues in the proposed appeal.

4 I turn to the legislation which bears on the path for appeal. Section 101 of the Supreme Court Act 1970 contains general provisions stating when an appeal lies to the Court of Appeal from, among other things, any judgment or order of the Court in a Division. Where s.101 applies it confers power to hear appeals from a decision such as that made by Macready AsJ, subject to leave to appeal required by subs.2(e) relating to an interlocutory judgment or order in proceedings in the court. As its opening words say, s.101 is “Subject to this and any other Act and subject to the rules …”. Section 104 makes it clear that section 101 does not apply of its own force in the present case:

Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an associate Judge, registrar or other officer.

5 What then do the rules say to which s.104 and in turn s.101 are subject?

6 I first incidentally notice Part 49 of the Uniform Civil Procedure Rules and its provision in rule 49.4: “An appeal lies to the Supreme Court from any decision of an associate Judge of the Supreme Court, except in a case where an appeal lies to the Court of Appeal.” This complements s.104.

7 I then refer to Pt 60 of the Supreme Court Rules, some provisions of which are still in effect notwithstanding rules made under the Civil Procedure Act 2005. Part 60 r.1A(1)(b) empowers an associate Judge to exercise the powers of the Court under any of the provisions of the rules, with an exception not now relevant. Although Sch D Pt 1 does not bear directly on the present question, I notice that in an unqualified way it confers on associate Judges the powers of the Court under the Family Provision Act 1982. Counsel also referred to provisions in Pt 3 of Sch D relating in general terms to the trial of proceedings. Those too are not directly in point as the decision under appeal was not given after trial of the proceedings.

8 The provision of the rules which relates directly to the opening words of s.104 is found in Pt 60 r 17 of the Supreme Court Rules:

An appeal shall lie to the Court of Appeal in accordance with section 101 and 103 of the Act subject, however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by an associate Judge:

9 Subparagraphs (a) to (k) follow and prescribe cases to which this provision applies including

(d) in proceedings under the Family Provision Act 1982,
(k) where a decision of the associate Judge is a final decision other than;
(i) a decision on an application for a summary judgment, or
(ii) a decision on an application for a summary dismissal of proceedings.

10 The decisions referred to in subpars (a) to (k) do not have any strong common characteristic. In particular it cannot be said that they characteristically refer either to interlocutory or to final decisions. Some are one, some the other: some could be either.

11 There is some difficulty in understanding why in subpar (k) a decision on an application for summary judgment and a decision on an application for summary dismissal of proceedings are referred to as exceptions from a provision about to a final decision; it is well established no matter what subpar (k) may say that decision on an application for summary judgment and decision on an application for summary dismissal proceedings are not final decisions for the purpose of rights of appeal. I find it difficult to see why the exceptions were made. However that may be, there is no sign to my reading that subpars (a) to (k) are highly integrated in some way which would involve one of them influencing or controlling the construction of another so as to make it necessary to imply limitations to what would otherwise be the meaning of one subparagraph to accommodate the operation of another. There is no reason to imply limitations into what subpar (d) means in order to produce an overall harmonious operation with subpar (k). Part 60 rule 17 is not an instance of tight drafting where it would be appropriate to treat what subpar (k) provides as a reason for reading down what on its face and according to the ordinary meaning of its words is the meaning of subpar (d). It was urged on me by counsel that there should be some such limitation, but I am unable to see the basis for any such limitation in the reference in subpar (k) to a final decision and to the terms of its exceptions.

12 Section 51 of the Supreme Court Act states the procedure to be followed where proceedings are commenced in a Division but are assigned to the Court of Appeal; the validity of the process is preserved by conforming to subs.(1). Later provisions of section 51 show that a decision reached without advertence to the limitation is not vitiated, but I do not wish to involve myself in a decision which needs to be saved in that way.

13 It was contended by counsel for the proposed appellants that on a purposive reading of Pt 60 r 17 and by necessary implication from the terms of subpar (k), the provisions of subpar (k) are part of the matters for consideration in interpreting subpar (d). I have not accepted this contention. It is my opinion that to raise an implication limiting subpar (d) it would be necessary that r 17(k) should be seen to deal with interlocutory proceedings in some way which overbears the ordinary meaning of other subparagraphs: that subpar (k) should in some way be treated as overruling or limiting other specific provisions in rule 17. I do not think that that would be a correct understanding of the rule.

14 Counsel referred me to a number of considerations including the frequency of appeals from Associate Justices and at earlier times from Masters to single Judges in the Division; a number of instances were referred to although only one to which I will make further reference related to a decision under the Family Provision Act. It is indeed a commonplace that appeals take that course, including appeals in summary disposal applications, but it cannot be said that this is a commonplace in summary disposal applications in Family Provision Act proceedings. I myself have not encountered such an application in Family Provision proceedings, although there is no reason why there should not be one.

15 Counsel referred me to the decision of Young CJ in Eq in Gorman v Gorman [2003] NSWSC 647. In an ex-tempore decision his Honour considered the procedure on appeal from a decision of an Acting Master. It was historically true that the proceedings in which the Master made his decision were proceedings in which the plaintiff relied on rights under the Family Provision Act. The Master’s orders under appeal did not dispose of a claim under the Family Provision Act, and the orders made were difficult to classify. Justice Young did not direct his attention to the provisions of subpar (d) Pt 60 r 17. From his Honour's expressions and the subjects on which his Honour ruled, it could well be that his Honour was not referred to subpar (d). I regard Gorman v Gorman as a case in which decision was reached without noticing the difficulty which I have perceived in the present case, and for that reason it has no persuasive force.

16 Applying the ordinary meaning of its terms Part 60 rule 17 applies in the present case so that an appeal lies to the Court of Appeal from the orders made by Macready AsJ. The basis of my opinion is the breadth of the references in rule 17 to appeals "from any decision of the court in a Division" - and I emphasise the words "any decision" - and the breadth of the reference in subpar (d) to proceedings under the Family Provision Act 1982. In the plainest way the decisions of Macready AsJ were decisions of the court in a Division in proceedings under the Family Provision Act 1982, no less so because they were made at an interlocutory stage and did not finally dispose of the proceedings. No less either were the orders decisions of the Court in proceedings under the Family Provision Act because the power to make those orders was conferred by Sch D Pt 1 of the Supreme Court Rules and was not conferred by any provision of the Family Provision Act, which does not in its own terms deal with summary disposal.

17 In summary then, my conclusion is that the meaning of Pt 60 r 17, particularly subpar (d), is that the decisions under appeal, like any decision whether interlocutory or otherwise made by an Associate Judge in proceedings under the Family Provision Act, are decisions from which appeal lies to the Court of Appeal and does not lie to a single Judge sitting in a Division. It follows that I should not embark on hearing and determining the proposed appeals but should follow the procedure which s.51 of the Supreme Court Act requires.

18 Before I do that, I will turn aside to make some observations on mediation. I have brought mediation under consideration of my own motion. Mediation is provided for by section 26 of the Civil Procedure Act 2005, the effect of which is that it is open to me to make an order for mediation of my own motion notwithstanding that neither party has applied for such an order. There are aspects of the present controversy which to my mind make it highly suitable for mediation. The parties are closely related, and their dispute is about what I would in a general expression call family property; that is, property traceable to the parent of the parties principally involved. Although there is an indirect step the dispute relates to the administration of the estate of their parent and the disposition of his assets. On the face of things there are ample resources, so no-one is in a corner over the disposition of assets. From the point of view of the court and indeed of the public a family dispute in open court disposed of by adjudication by a public officer has an unfortunate appearance. From the point of view of the parties, who have a long future to look forward to, resolution of their dispute by agreement could, I rather think, come to seem, particularly as the years extend, a much more satisfactory outcome than resolution imposed by a court. They are family members, and future harmony within the family, if it ever appears, has a high value from the point of view of the parties themselves and also from the point of view of the community at large. I have asked counsel whether there are any circumstances in the parties' relationship or past conduct which would make meeting for mediation in any sense a danger to peace and order and I have been told that there is no such consideration. The advantage of mediation is that if the parties can participate sincerely in mediation there are opportunities for considerations to which the court would pay no regard to emerge, be debated, and assume whatever proper dimensions they have. A court cannot do this. I have decided that this is an appropriate case for me to make an order under section 26 of the Civil Procedure Act for compulsory mediation. I will reserve liberty to the parties to apply for detailed directions, if that should be necessary; although the ordinary course is that parties find it quite possible to attend to details such as selecting and retaining a mediator, appointing times and places and so forth.

19 I make the following orders in each of the two proceedings:

1) Order pursuant to s 51(1) of the Supreme Court Act 1970 that the appeal proceedings be removed into the Court of Appeal.

2) I direct that the defendants make an application to the Registrar of the Court of Appeal for directions relating to the further conduct of the appeal proceedings including conduct of an application for leave to appeal.

3) I order that the costs of the proceedings before me follow and be paid in accordance with any order for costs to be made by the Court of Appeal upon the application for leave to appeal or on any appeal.

4) Of my own motion I order pursuant to s 26 of the Civil Procedure Act 2005 that the whole of the proceedings be referred to mediation by a mediator.

5) I reserve to each party leave to apply to me on 2 days’ notice for directions in detail relating to the appointment of a mediator and the conduct of mediation.

6) I order that the plaintiff has leave to file amended summons so as to join as an additional defendant Boyeli Pty Ltd and to amend the relief accordingly.

7) I direct that the amended summons be filed within 10 days.

8) Costs of the amendment are defendants’ costs in the proceedings.

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