PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
Interlocutory application by the interested party seeking dismissal of the proceedings and that the plaintiff pay its costs.
The plaintiff brought an application seeking orders for rectification of the testator’s will pursuant to s 25AA of the Wills Act 1936 (SA), and an order that the parties’ costs of and incidental to the action be paid, on an indemnity basis, by the solicitors who drafted the will. The solicitors were joined to the action as an interested party following a mediation which resulted in an agreement being reached between the plaintiff and the defendants. A Judge of this Court made an order pursuant to rule 257 of the Supreme Court Civil Rules 2006 (SA) (SCR) approving the agreement. Shortly before the trial was to be heard, the interlocutory application was filed.
The solicitors submit the agreement resolves and disposes of all issues in the action; that it distributes the estate assets irrespective of any decision which may be made regarding rectification of the will; that it resolves any or all of the potential competing claims between the plaintiff and defendants, including under the Inheritance (Family Provision) Act 1972 (SA); and, that the action therefore has no utility and is an abuse of process. The plaintiff opposes the application.
Held: Application dismissed (at [86]).
1. The affidavit in support of the application discloses a reasonable cause of action. The solicitors have been joined as an interested party so that orders can be sought against them for the costs of the rectification proceedings. The practice is an application of the power of the Court to award costs against non-parties. There is no requirement for a claim or cause of action against the non-parties in order to enliven the power to award costs against them. This is not a negligence claim brought against the solicitors in the guise of a rectification action (at [37] to [44]).
2. The proceedings are not vexatious nor an abuse of process. The agreement did not effect a settlement of the claim for rectification. Further, the pursuit of the rectification claim and the costs claim are not vexatious or an abuse of process (at [46]).
3. There is no entitlement to summary judgment. First, the solicitors lack standing to apply for summary judgment, and second, they cannot establish that there is no reasonable basis for the plaintiff’s claim (at [68]).
4. The issuing of a second summons after the agreement was made, does not constitute a procedural irregularity (at [85]).
5. There is no issue estoppel in this case as the order approving the agreement did not finally decide the question of whether the plaintiff is entitled to an order for rectification or costs against…
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.
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Craker v Craker [2018] SASC 10
Case
[2018] SASC 10
Decision Date
CaseChat Overview and Summary
In the case of Craker v Craker, the parties were involved in a dispute over the validity of a will and the statutory power of rectification. The matter was heard in the Supreme Court of South Australia. The legal issues before the court involved the application of the Supreme Court Civil Rules (SCR) 232, which governs the granting of summary judgment, and the statutory power of rectification under the Wills Act 1936 (SA).
The court was required to determine whether the defendants' claims against the plaintiff had any reasonable basis or if there was no reasonable basis for the plaintiff's claim against the defendants. The court examined the burden of proof in the context of summary judgment applications and the interpretation of the phrase "no reasonable basis" for a claim or defence. The court also considered the legislative intent behind the power to grant summary judgment and how it differs from previous procedural regimes.
The court concluded that the test for summary judgment under SCR 232 required the court to identify the issues to be tried and assess whether the claim or defence had reasonable prospects of success. The court held that the burden for a defendant seeking summary judgment had been lowered, but the court still needed to determine whether there was no reasonable basis for the claim or defence in a summary manner. The court emphasised that the focus should be on the present basis for the claim or defence rather than the future prospects of success.
Ultimately, the court granted the summary judgment application made by the defendants, finding that there was no reasonable basis for the plaintiff's claim against them. The court's decision was based on the lack of evidence and arguable propositions of law to support the plaintiff's claim, as well as the absence of any reasonable grounds for the defendants to contend that the plaintiff would not discharge their onus of proof.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
STANLEY J
The solicitors alternatively seek an order for summary judgment pursuant to SCR 232. SCR 232 provides: 232—Summary judgment(1) The Court may, on application by a party, give summary judgment for that party.(2) Summary judgment may only be given if the Court is satisfied that—(a)if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or(b)if the applicant is a defendant—there is no reasonable basis for the claim against the applicant. Only a party to an action may apply for summary judgment.[12] The terms of SCR 232(2) make clear that in this context the reference to a “party” refers to a plaintiff or a defendant. [12] SCR 232(1). The application of SCR 232 was considered by the Full Court in Collins v Djunaedi where the Chief Justice, with whom Parker J and I agreed, said:[13][13] [2016] SASCFC 48 at [11]-[17].In Ceneavenue Pty Ltd v Martin, Debelle J (Duggan and Anderson JJ agreeing) said of rule 232 of the Supreme Court Civil Rules 2006 (SCR 232), which is in identical terms:A comparison of the test in r 25.04 with the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore, no longer applicable. I respectfully agree with Bleby J that the barrier to summary judgment on an application by a defendant has been lowered: JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [61].While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried … The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.The parties both referred to the matter of Spencer v Commonwealth of Australia, which was concerned with s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), as the leading High Court decision on the application of summary judgment. Section 31A relevantly provides:(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is prosecuting the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospect of success.In Spencer, French CJ and Gummow J said:Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.(citation omitted)Hayne, Crennan, Kiefel and Bell JJ stated:How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.(citation omitted)In Proude v Visic & Ors (No 4), Blue J made the following observations on the similarities and differences between s 31A(2)(b) and SCR 232(2)(b):Section 31A(2)(b) bears a similarity to Rule 232(2)(b). However, the Federal Court provision refers to “no reasonable prospect of successfully prosecuting the proceeding”, whereas this Court’s rule refers to “no reasonable basis” for the claim. The inquiry in the Federal Court is directed to the future and to an assessment of the prospect of success, whereas the provision in this Court is directed to the present and to the basis for the plaintiff’s claim. While there is no equivalent in this Court’s Rules to section 31A(3), the Full Court decided in Ceneavenue that it was not a pre-condition for obtaining summary judgment that a proceeding be demonstrated to be hopeless or bound to fail.Blue J concluded that the determination of what is a reasonable basis for a claim will vary depending upon the nature and circumstances of the particular claim, bearing in mind the necessity to determine whether there is a reasonable basis for the claim in a summary way.For my part I doubt that the ‘prospective’ and ‘present’ foci, of the FCA Act and DCR 232 respectively, will ever lead to different results. There cannot be a reasonable prospect of future success in prosecuting or defending a claim unless there is a presently existing reasonable basis upon which to prosecute or defend it. Nor can it be said that a claim or defence which has a reasonable basis does not have a reasonable prospect of success.In the case of a summary judgment application, there is a reasonable basis for a claim, or a positively pleaded defence, when there is an evidential foundation for facts upon which arguable propositions of law would result in judgment for the plaintiff or the defendant as the case may be. In cases in which the defendant merely denies the claim, there must be reasonable grounds on which to contend that the plaintiff will not discharge its onus of proof or make good the propositions of law on which it relies. In the case of a SCR 232 application, the evidential basis or grounds must at least be pleaded.[Footnotes omitted.]