Dillon and Wayne

FAMILY COURT OF AUSTRALIA

DILLON & WAYNE

[2012] FamCA 423

FAMILY LAW – PROPERTY – where this matter has a protracted history – the wife seeks various orders pursuant to s 106B against the respondent, who is a third party to the marriage – where the husband is deceased – where there are issues regarding bankruptcy of the husband – where the wife is seeking an injunction restraining the respondent from dealing with certain property, pending the final hearing of the matter – where the wife was not represented at the hearing of the application for injunction – where the application was prepared by the wife’s solicitors, prior to their filing a Notice of Ceasing to Act – where the wife’s representatives have repeatedly failed to clearly articulate the wife’s case and the prospects of success – where the circumstances favour dismissing the wife’s application for injunction.

Bankruptcy Act 1966 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)
Succession Act 1981 (Qld)

APPLICANT:

Ms Dillon

RESPONDENT:

Ms Wayne

FILE NUMBER:

BRC

2537

2007

DATE DELIVERED:

29 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

29 May 2012

REPRESENTATION

THE APPLICANT:

In person by telephone

SOLICITOR FOR THE RESPONDENT:

Mr J.H. Crowther of Whitehead Gupta Lawyers

Orders

The Applications in a Case, filed by the Applicant on 2 May 2012 and 14 May 2012 are each dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dillon & Wayne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2537 of 2007

Ms Dillon

Applicant

And

Ms Wayne

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 7 June 2011 I made orders and delivered reasons subsequent to a trial between the parties to the current interim applications before me. In circumstances which will emerge, this matter is listed for trial before me on 16 July 2012.
Ms Dillon who I will call “the wife” filed two Applications in a Case. The first, filed 2 May 2012, seeks orders that, pending the resolution of the section 106B proceedings to be heard in July the respondent Ms Wayne be restrained from dealing with proceeds of $63,000 which, as the earlier reasons to which I have referred reveal, are the damages received by the husband in respect of an asbestosis claim.
The second Application in a Case, filed 14 May 2012, seeks an order that:
Pursuant to Rule 6.15(2) – the death of the Husband and the subsequent renouncing of the executorship by the executors, the Court provide further procedural Orders in relation to the representation of the Husband’s estate in the proceedings.
Those two Applications in a Case mask what has been a very lengthy process of litigation. It is necessary to give proper context to the current applications to refer to the reasons for judgment delivered by me on 7 June 2011. For present purposes it should be pointed out that the original application filed by the wife was filed some six years ago on 3 May 2006. In my earlier reasons I said:
(4)The current application is the latest step in a long and chequered path of litigation in both this Court and the Federal Magistrates Court. The history of that litigation gives context to the current application and should be set out.
I then proceeded to set out at least some of that history. That same history should be seen to give context to the current applications and, indeed, to the trial to be heard on 12 July this year.
In my earlier reasons I went on to say:
(10)On 26 April 2007 the wife filed the first of what was to become many amended applications; as will be seen a yet further Amended Initiating Application was filed on 24 August 2011.
As part of the lengthy history to which reference has just been made it might be observed that, now more than five years ago, the late Federal Magistrate Slack not only ordered the wife to file an amended application “particularising the orders sought in respect of property settlement and in particular any order sought against the property of any third parties.”
Notwithstanding that order and, it might respectfully be said, his Honour’s intimation, the path to the hearing of what was substantively alleged by the wife remained mired. For example, an application seeking to join Ms Wayne came before Spelleken FM in August 2007 and was refused. A subsequent application to the same effect was made on 5 December 2007. That application was granted.
The granting of that application resulted in an appeal. It is of some considerable significance to note that the application thus filed remained very significantly flawed. Indeed, so much was that so that in my earlier reasons I cite Warnick J in the appeal against that order. His Honour said:
An application (many times amended) by the wife [contains] no known ‘claim at law’”. Ultimately after yet further amendments to the application sought by the wife the matter proceeded to trial in the manner previously discussed.
The further, further, further amended application was quoted at paragraph 21 of my reasons for judgment.
Even its appearance marks it as an extraordinary document. Unsurprisingly, it might be thought, that document prompted an application for summary dismissal of the wife’s claim. In the trial before me a large proportion of the purported application was struck out as being “doomed to fail” (as that expression is used in the authorities to which I have referred in my earlier reasons).
There were other difficulties in that trial, not the least of which, it might be thought, is the lack of reference by either party to the husband’s death and bankruptcy.
Those matters, it might reasonably be thought, significantly impact upon the nature of the application and resistance to it.
In my earlier reasons I said:
(136)The totality of the submissions made by either party in respect of the effect of death upon the wife’s claim, or the proceedings themselves, consist of a footnote in the written submissions on behalf of the wife which says: “It is noted that if an adjustment is made it will now, due to the death of the husband since the commencement of these proceedings, be pursuant to s 79(8) …”.
(137)Bankruptcy and its potential effect is not at all addressed in either party’s submissions filed in the proceedings before me. It is however, addressed, along with the husband’s death, in an Application in a Case filed on behalf of the wife on 13 July 2009 and in submissions filed on behalf of the wife on 20 July 2009. In both instances, the wife, in accordance with Rules 6.15(2) and 6.17(2), sought procedural directions in relation to the future conduct of the case in light of the husband’s death and bankruptcy respectively. It is by no means clear whether this Application resulted in any directions or orders related directly to that Application.
Ultimately after dismissing a large number of aspects of the wife’s claim I went on to find in those reasons:
(152)If the [E property] transactions are set aside, the proceeds of sale would, in the usual course of events, become susceptible to s 79 orders.
(153)It will be appreciated that neither the wife’s nor [Ms Wayne’s] pleaded case, nor their evidence or submissions, address what might occur as a result of the husband’s bankruptcy and death.
(154)Arguments potentially open to the wife emerge. For example, if the proceeds are “after-acquired property” within the meaning of the BA, and are not otherwise exempt property within the meaning of that Act, it seems to me well arguable that the proceeds would be available and that the creditors who have proved in the bankruptcy can “compete” with the wife for those funds in the manner referred to in Lemnos, above.
(155)No arguments have been advanced which suggest that this scenario is not reasonably open. In terms of the potential for the s 106B discretion to be exercised favourably to the wife, there is, in my view, an argument fit to be tried that the wife has a potential s 79 entitlement.
Ultimately, then, relevant to the current proceedings I held (again noting that the context was what can conveniently be called an application to summarily dismiss):
(163)The only s 106B case that can be reasonably agitated by the wife relates to the creation of the [E Trust] and its distribution of the [E property] proceeds to [Ms Wayne] and the payment of a component of the husband’s damages to [Ms Wayne].
(164)The procedural requirements of the Rules emanating from the death of the husband can and should, if necessary, be dispensed with in the manner in which I have earlier indicated.
(165)As the claims made by the wife are fairly arguable in the manner earlier referred to, it seems to me that the wife has, in turn, a fairly arguable case that an order for settlement of property would have been made had the husband not died and, in turn, a fairly arguable case that it is still appropriate to make such an order
It will be appreciated that the reference in the last paragraph just quoted is a reference to the terms of section 79(8) of the Family Law Act 1975 (Cth) (“the Act”). Although I can find no specific orders having been made by Barry J in this respect it seems clear that an application was made before his Honour for there to be procedural orders pursuant to rule 6.15 and rule 6.17 consequent upon the husband’s bankruptcy and death in the proceedings which were then live and remained live.
Similarly, it seems to have been implicit in his Honour’s decision that, consequent upon compliance with those rules, his Honour permitted the proceedings to continue in the manner contemplated by section 79(8) of the Act notwithstanding the death of the husband.
Among the orders made by me after that trial was the following:
(4)The wife’s Further Amended Application, as varied by these Orders, be listed before a Registrar at a date and time to be fixed for the making of all such directions as might be necessary so as to allow the matter to be determined at a final hearing.
Consequent upon that order, some couple of months later on 24 August 2011, the wife filed yet another Amended Initiating Application. That Initiating Application seeks, in terms, as follows:
(1)That pursuant to section 106B of the Family Law Act 1975 (Cth) the following instruments, dispositions and payments be set aside:
(1.4) The instrument known as the “Deed of Settlement [Mr Dillon] as trustee for the [E Trust]” dated 16 September 2003 and the appointment by the husband of [Ms Wayne] as the sole beneficiary.
(1.5) The transfer of the husband’s ½ share interest in [E property], Queensland (described as Lot […] in Registered Plan […]) from the husband’s personal name into “the [E Trust]” on 7 November 2003.
(1.6) The disbursement to [Ms Wayne] under “the [E Trust]” as sole beneficiary of $400,000 from the sale of the property at [E] on 8 May 2006, such monies having been retained by [Ms Wayne] and providing a benefit to her.
(1.7) The monies from the husband’s mesothelioma/asbestosis claim as paid directly to [Ms Wayne] being $63,000.
(9)That the property pool be divided as between the parties 85% to the wife and 15% to the late husband’s estate.
(11)That in the event that either party or [Ms Wayne] refuses or neglects to execute any deed, instrument or document that he or she is required to execute pursuant to the Orders in order to give effect to these Orders, a Registrar or Deputy Registrar of the Court be appointed pursuant to Section 106A of the Act to execute such document in the name of that party OR [Ms Wayne] and to do all acts and things necessary to give validity to the operation of the document.
The document strikes through the other paragraphs of the amended application resulting from the orders made by me.
It will be appreciated, then, that as and from 24 August 2011 there was, as far as the wife’s application is concerned, proceedings live between the parties pursuant to section 106B both with respect to what might be conveniently called “the E Trust issue” and the “asbestosis damages” issue.
As my trial orders contemplated, the further hearing of that application was to be managed by a registrar. Subsequently, an application before the registrar was foreshadowed. Ahead of that application the wife’s then solicitor filed an affidavit sworn by her on 8 January 2012. The affidavit states at its outset that the application is made in support of “the Application in a Case to adjourn the trial and to seek leave to further amend the application.” The affidavit then goes on to depose to the wife’s illness, change of barrister and the like.
The affidavit concludes as follows:
The wife if granted leave to further amend her application would also seek orders for a declaration pursuant to section 78 of the Family Law Act that the money of the [E Trust] has always been part of the matrimonial property pool; that the loans of the respondent to the late [Mr Dillon] as alleged by the respondent be set aside and that the trustee of the [E Trust] do all acts and things and sign all such documents and take all steps as are reasonably required to pay the applicant $488,417.98 by way of a property settlement.
It will, then, be immediately appreciated that, despite the innumerable amendments to the application by the wife, a yet further amendment was foreshadowed in that affidavit of 8 January 2012. Indeed, that foreshadowed amendment was given as a reason for adjourning the then mooted trial date.
It will also be appreciated that, notwithstanding the innumerable number of amendments to the application, yet further relief not previously referred to was foreshadowed including, for example, declarations that the loans of the respondent to the late husband be set aside and that the trustee of the E Trust (currently Ms Wayne’s daughter) do various things.
The following day that application was heard by me. At that hearing both the wife and Ms Wayne were represented by counsel. At that hearing I ordered that paragraphs 1.4 and 1.5 of the applicant’s amended initiating application filed 24 August 2011 be struck out. The effect of that order would see only paragraph 1.6 remaining in respect of the E Trust issue, namely, “the disbursement to [Ms Wayne] ... as sole beneficiary of $400,000 from the sale of the property at [E]”.
The matter was set down for trial on 16 July 2012. It will be appreciated that, on that occasion, the mooted application by the wife to which I have referred by reference to paragraph 22 of her then solicitor’s affidavit was before the Court. I ordered on that occasion:
(4)The applicant ([Ms Dillon]) shall file and serve by not later than 4.00pm on 30 April 2012:
(a) Pleadings in respect of any cause of action alleged against the respondent or the respondents to be joined in accordance with the further provisions of these orders.
(b) Contemporaneously therewith minutes of orders setting out the precise terms of each and every order sought against each and all respondents.
(5)The respondent [Ms Wayne] shall file and serve a response to the pleadings by not later than 4 pm on 25 May 2012.
A review by me was contemplated on 1 June 2012 – primarily, as will be appreciated, as a result of the tortuous procedural and other history of these proceedings.
I also ordered on that occasion that “all relevant rules be dispensed with so as to permit the applicant to amend her case and file the documents referred to in paragraph 4 of these orders.” In other words an order was made by me on that occasion dispensing with all of the relevant formal requirements so as to permit the applicant to, yet again, amend her case so as to allege all such matters against all such respondents as she might allege.
I repeat, that order was made on 9 January 2012 in contemplation of what might conveniently be described as a directions/compliance hearing by me on 1 June 2012.
There things remained until a couple of weeks ago.
On 2 May 2012 (that is to say some five months after the order to which I have just made reference) the wife filed via her then solicitors a document entitled “Pleadings re claim against respondent”.
Reference to that document will show that much of it does not in fact resemble what might be called a pleading and much of it as is, in my view, properly contended by the respondent’s pleading, irrelevant to the issues to which it is said to relate.
It is important to quote paragraph 5 of that pleading:
(5)Proceedings for a property adjustment order pursuant to section 79 ... were commenced on 3 May 2006 by the applicant wife filing an application for final orders (the “property adjustment proceedings”), and such proceedings have not yet been finalised.
Particulars
(5.1)The wife currently seeks, pursuant to section 106B ... that the payment of monies from the late husband’s mesothelioma/asbestosis claim as paid directly to the respondent on 11 September 2011, being $63,000, be set aside and that the $63,000 be paid by the respondent into the Law Practice Trust Account of the solicitors for the respondent, pending the dermination by the Court of the proper adjustment under section 79 … .
It needs to be observed that the reference in paragraph 5 to “the property adjustment proceedings” can only be seen as a reference to the yet further amended application (incorporating the striking out of paragraphs 1.4 and 1.5 as ordered by me on 9 January).
It will in turn be appreciated that reference to that document reveals that it contains a claim pursuant to section 106B in respect of the E Trust as well as a claim with respect to the damages awarded to the husband in respect of the Asbestosis claim.
The solicitor who appears for Ms Wayne this morning submits to the Court that he, his client and his counsel (who drew the responsive pleading to which I will refer in a moment) were all under the impression given by the document that the claim made by Ms Wayne was confined to that which is detailed under the heading “Particulars” at paragraph 5.1 of that pleading. Such an understanding is in my view entirely understandable in light of the previous history and the procedural orders to which I have just made reference.
That understanding outlined by the solicitor for Ms Wayne this morning is given substance by the pleading filed on behalf of Ms Wayne on 25 May 2012. Paragraph 3 of that document provides:
The second respondent does not plead to paragraph 5.1 (notwithstanding the paragraph is alleged to provide particulars of an allegation - presumably in paragraph 5 because of its numbering and its juxtaposition to that paragraph) - of the purported statement of claim but notes its contents as it appears to be a pleading of the relief sought by the applicant against the second respondent and it is assumed the relief sought is now limited to a claim for the repayment of the sum of $63,000 only.
On 25 May 2012, that is to say, coincidently, the same day upon which Ms Wayne’s pleading was filed, the solicitors for the wife who had been acting for her for some years filed a Notice of Ceasing to Act. The wife informs the Court this morning that the reason for that is that her Legal Aid had been terminated. The same day Ms Wayne filed a Notice of Address for Service indicating that she represents herself.
The Court granted her the indulgence of appearing by telephone this morning, primarily as a result of evidence the Court had before it on 9 January 2012 relating to Ms Dillon’s significant ill health. However, as I indicated to Ms Dillon during the course of the proceedings today, doing so has proved very difficult – primarily, I gather, as a result of Ms Dillon utilising a speaker phone, having her daughter with her and with conversation muted on that speaker phone.

Unless there is cogent evidence suggesting to the contrary, I will require Ms Dillon’s personal attendance at the trial of this action and, indeed, at any further procedural hearings before me that might be required.
Against that lengthy but necessary procedural history the applications to be determined today are then, the two Applications in a Case filed by the wife to which I have earlier referred.
Ms Dillon understandably experienced some difficulties as a result of having been represented for a considerable period of time but now finding herself in the situation where it is necessary for her to represent herself. She indicates to the Court that she intends obtaining representation, if at all possible, and, in particular, to be represented at the trial of this action.
During the course of representing herself and in light of the potential for the pleading filed by her to be capable of two meanings – or at least, to not being entirely clear – I attempted to have Ms Dillon outline the orders that she will ultimately seek from the Court at the trial of this action.
Initially it seemed to me that Ms Dillon was saying that she had effectively accepted that it would not be possible for her to prosecute a case in respect of the E Trust, however, subsequent to those comments the wife said words to the effect of that she “may be claiming against the trust” at the trial.
The fundamental importance of the necessity to have all parties who may have an interest in these proceedings being served, the potential for costs orders being made against her should that occur and the obvious necessity for any such case to be articulated so that it can be met by the respondent was outlined to the wife.
In the interests of any person later representing her, but also in the interests of Ms Wayne (who needs to be clear about the case that she needs to meet at the trial) I effectively permitted Ms Dillon to make an oral application. It was not properly articulated given her self represented status but it was, in effect for leave to yet again further amend her application so as to include some form of claim with respect to the E Trust.
It will be appreciated that, as the documents currently stand, the wife’s application is confined to paragraph 1.6 of the further amended application, but her “pleading”, at least on one fair reading of it, appears to disclaim that and seek only relief in respect of the asbestosis claim.
No application has been made today to strike out paragraph 1.6 in light of the lack of particularity provided in respect of it in the “pleading” filed by Ms Wayne. It is, however, clear and manifest from the pleading ordered to be filed by her that no such claim in respect of the E Trust has been particularised.
It seems to me that no claim with respect to the E Trust as set out at paragraph 1.6 of the application ought be permitted to proceed in the absence of proper particularity and, indeed, the joining of parties who may have a direct interest in the proceedings.
The claim in respect of the E Trust was purportedly articulated at the proceedings before me on 9 January 2012. To the extent that it was purportedly articulated (by, it should be noted, counsel representing the wife on that occasion) it resulted in the striking out of paragraphs 1.4 and 1.5 of the application.
As is abundantly clear from the history of this matter and, indeed, from the very specific orders made by me on 9 January, to the extent that the wife sought to pursue the claim specified in paragraph 1.6 of the application there was a necessity for the facts and circumstances to be properly particularised so that Ms Wayne could know the case which she needed to meet. So much in my view is abundantly clear from the very specific reference to “any cause of action alleged against the respondent or the respondents” and the separate reference to “the precise terms of each and every order” sought against “each and all respondents”.
Some five months after that order was made, and about a month prior to the ordered directions/compliance hearing on 1 June 2012 a document purporting to be a pleading was filed. It seems to me a fair reading of that document is that it is confined to a claim in respect of the $63,000 paid to Ms Wayne in respect of the husband’s asbestosis claim.
As I indicated to the solicitor for Ms Wayne during the course of argument, it seems to me that it is possible to read the substantive part of paragraph 5 as a reference to proceedings more generally, but, in light of the orders made by me on 9 January 2012 and the fact that the wife has had five months to properly particularise any claim as was contemplated by those orders, the only fair reading of the document is that the claim by the wife is confined to the asbestosis claim.
To the extent that the self-represented wife today makes what might be described as a further oral application to further amend either the “pleading” or the application itself, in my view that application, if that is what it can be called, should be dismissed or alternatively perhaps not entertained. That result is arrived at by reference to the tortured history of this matter and the various opportunities that have been provided to the wife to properly articulate, plead and give notice of her claim.
Accordingly, then, for the purposes of the trial to take place on 16 July, the application by the wife is confined to an application in respect of the asbestosis claim.
Difficult procedural issues nevertheless arise with respect to that claim. As I said in the earlier reasons for judgment, the evidence by which a firm conclusion might be reached in this respect is lacking. But, nevertheless, it seems to me plainly likely that the damages received by the husband in respect of a personal action in relation to what amounts effectively to personal injuries would be ‘exempt’ property within the meaning of the Bankruptcy Act 1966 (Cth).
Accordingly, as it seems to me, notwithstanding the fact that bankruptcy survives death there is no necessity for a trustee in bankruptcy to be a party or receive notice of these proceedings.
A further difficulty emerges because of the death of the husband. As I have said the wife applies today, effectively, for procedural orders pursuant to rule 6.15; That rule requires, in circumstances where one party dies, “the other party or the legal personal representative asking the Court for procedural orders in relation to the future conduct of the case”.
The rule uses the mandatory verb “must”. Whilst the rules can be dispensed with, the provisions of the Act, of course, cannot. Section 79(8) provides that:
Where before property settlement proceedings are completed a party to the marriage dies the proceedings may be continued by or against as the case may be the legal person or representative of the deceased party and the applicable rules of Court make provision in relation to the substitution of legal personal representative as a party to the proceedings.
If no prior order had been made by the Court pursuant to section 79(8) or, indeed, by reference to rule 6.15, there may well be an argument available to Ms Wayne that the property proceedings have abated as a result of the death of the husband. That is all the more so in light of the passage of time that has elapsed between the death and the ultimate hearing of the section 79 proceedings.
However (and while I repeat what I said in my reasons for judgment at the trial that the position is “unclear”) it nevertheless seems to me tolerably clear that a consideration of section 79(8) and the relevant rules was undertaken by Barry J shortly after the death of the husband.
I have not been able to locate on the file, nor has Mr Crowther this morning pointed to, nor on any earlier occasion did counsel point to, any specific order made by Barry J or any other judicial officer relating specifically to section 79(8) or rule 6.15 or, indeed, to any reasons given by his Honour or any other judicial officer in that regard.
However, what is abundantly clear is that whilst the matter was in Barry J’s docket and the matter was proceeding to trial before his Honour, his Honour was made aware of both the bankruptcy and death of the husband. Subsequent to being made aware of the death of the husband his Honour permitted section 79 proceedings to continue and, indeed, continued to manage those proceedings until his Honour’s retirement from the bench.
In that respect I said in my reasons for judgment at the trial:
137.Bankruptcy and its potential effect is not at all addressed in either party’s submissions filed in the proceedings before me. It is however, addressed, along with the husband’s death, in an Application in a Case filed on behalf of the wife on 13 July 2009 and in submissions filed on behalf of the wife on 20 July 2009. In both instances, the wife, in accordance with Rules 6.15(2) and 6.17(2), sought procedural directions in relation to the future conduct of the case in light of the husband’s death and bankruptcy respectively. It is by no means clear whether this Application resulted in any directions or orders related directly to that Application.
139.The husband’s death has an immediate impact upon the s 79 proceedings themselves. First, until the requirements of s 79(8) (and Rule 6.15) are met, the wife’s proceedings in respect of settlement of property are “suspended” and “no legally effective step [could] be taken either to continue or discontinue them”. (Inthe Marriage of Strelys (1988) 12 Fam LR 437 @ 445, per Nygh J).
140.The orders of Barry J made on 20 July 2009 and earlier referred to do not, on their face, refer to the issue of Rules 6.15(2) (or 6.17(2)). The wife’s Application in a Case and submissions, however, clearly reveal that, in accordance with Rules 6.15 and 6.17, the wife sought procedural directions for the future conduct of the case. The position is unclear. Neither party makes submissions about the issue. I cannot see any prejudice to either party if, to the extent necessary, I dispense with compliance with the Rules so as to permit these proceedings to continue.
Subsequently, on 27 April 2010, when the matter was next before the Court, Bell J ordered that the proceedings be adjourned and made procedural orders. At that time, his Honour also made orders that the executors of the estate be granted leave to withdraw from the proceedings. It seems that the trustee in bankruptcy also elected on that date to not further participate in the proceedings.
Accordingly, as at today, there would appear to be section 79 proceedings on foot as a result of the Court being satisfied some time ago that the provisions of section 79(8) were met. Secondly, it seems that the then executors of the estate were given leave to withdraw from those proceedings. In addition to those matters there is clear evidence before the Court that the executors for the estate renounced their respective executorships in September 2011.
It is also, it seems, common ground that, leaving aside the issues the subject of these proceedings pertaining to section 106B, the estate of the husband was negligible. I also now have before me a copy of the husband’s will. That will provides for there to be very modest specific legacies to each of two daughters of $100 each and a further specific legacy to a third daughter of $1000. The terms of the will purport to provide reasons for why those legacies were made and why they were in amounts that might be seen to be very modest. The only residuary beneficiary of the estate is Ms Wayne.
It seems plain on the evidence before me that such negligible estate as existed has been administered, and was administered some considerable time ago. These proceedings were on foot as against the estate and there was the potential for the estate having assets as a result of successful applications being made pursuant to section 106B of the Act. However, the personal representatives were excused from further appearance in those proceedings by the order of Bell J to which I have made reference.
It seems, then, that the position is that there is a case before the Court whereby a maximum amount of $63,000 could, as a result of a successful application pursuant to section 106B, come back notionally, as it were, into the husband’s estate. There are no representatives of the husband’s estate before the Court. The wife, in her application, contemplates that there might be a personal representative to represent the estate but she offers no such person nor does she offer any evidence as to how any such person might be paid in circumstances where it is accepted that the estate currently has no money.
In addition, the wife’s application does not appear to give consideration to the fact that, even if a personal representative was appointed, he or she would, as it seems to me, have a significant case for saying to the Court that their costs should be seen as a first charge on the $63,000 even if the application pursuant to section 106B was otherwise successful and even if the wife was successful in maintaining a claim to all of it.
The time, trouble, difficulties and expense involved in the mooted action will, I think, be obvious. These proceedings must come to an end; they have now been on foot for many, many years. They have had with them the attendant difficulties with the articulation of the case to which I have earlier referred.
I mooted with Mr Crowther that, in those circumstances (and particularly bearing in mind the self-representation of the wife) whether, as a matter of law, there was anything precluding the Court hearing and determining the substantive application without the estate being represented by a personal representative.
If there is nothing as a matter of law precluding that course of action and, in effect, it was a matter for the discretion of the Court there seems to me to be powerful reasons why that discretion would be exercised in favour of the proceedings continuing notwithstanding the absence of a personal representative. Not the least among those are the two factors to which I have referred: the length of time this matter has been on foot and the various turns it has taken in its chequered progress through initially the Federal Magistrates Court and subsequently this Court.
A personal representative might be seen to represent the interests of the beneficiaries in the sum which might come back into the estate as a result of the successful 106B claim. However, in this case, there are four beneficiaries, three of whom were given very modest specific legacies. There is no evidence to suggest that any of those beneficiaries have, or indeed could have, commenced proceedings for proper provision being made out of the estate pursuant to the Succession Act 1981 (Qld). Certainly, there is no evidence that they have done so, nor is there any evidence to suggest that the estate is, or was, such that would make any such proceedings other than futile.
Thus, to the extent that the $63,000 might form part of the husband’s estate the person with the prima facie interest in it as a beneficiary is Ms Wayne who is, in any event, a respondent to the proceedings, has been represented throughout the proceedings and is intended to be represented during the course of the trial.
Furthermore, this Court will have, as part of its s 79 jurisdiction and powers, the power to ensure that, in the event that the s 106B claim of the wife is successful, the moneys are distributed in accordance with what the Court ultimately orders is a just and equitable manner.
In all of those circumstances it seems to me that if there is nothing to preclude the Court as a matter of law from dealing with this case notwithstanding that there is no appointment of a personal representative then the Court should do so.
Mr Crowther submits that, pursuant to the terms of the Succession Act firstly, executors are, of course, free to renounce as these executors have done. Secondly, in those circumstances it is said that, at the suit of an interested person, creditor, beneficiary etcetera application can be made to the Supreme Court for the appointment of an alternative personal representative and that is normally what would occur.
Here though, it is difficult to see how anyone would have such an interest, or could facilitate that representation, in circumstances where the estate has been administered and, in any event, had negligible assets and where, despite a significant lapse of time, there has been no application for provision to be made from it.
Nothing is put before the Court to suggest that the Court does not have the power to deal with the proceedings in the manner to which I have referred, that is to say, in the absence of a personal representative.
In those circumstances, I find that it is in the interests of justice that the proceedings be heard and determined notwithstanding the absence of a personal representative in these unusual and particular circumstances. The effect of that finding is that the Application in a Case filed by the wife on 14 May 2012 should be dismissed.
The remaining matter is the Application in a Case seeking injunctive relief with respect to that $63,000. In my view, this application can be disposed of readily.
Submissions were made before the Court on 9 January 2012 in relation to a similar issue. The concerns of the wife emerge readily enough on the facts and circumstances present before me during the course of the trial. However, as was agitated before me on 9 January 2012, the determination and application for injunction is dependent upon a number of considerations.
Among those considerations are the emergent necessity to grant the injunction established by reference to the threat of proceeds which might otherwise be available to the other party through orders of the Court being dissipated and thus the fruits of any potential order being rendered nugatory.
It was contended on 9 January, and is contended again by Mr Crowther today, that there is no evidence before the Court by which the Court could be satisfied that there is sufficient threat in the manner to which the authorities refer. I accept that submission.
Further, the consideration of any such application for injunction involves a balancing of the interests of each of the parties concerned. Here Mr Crowther frankly concedes that the wife is desirous of effecting a mortgage so as to meet her legal costs in the future proceedings. It seems to me, in light of the whole of the circumstances of this matter that this is reasonable. I need to balance that reasonable suggestion by the wife against the circumstances in which it is sought to be pursued which include the continual failure by the wife to clearly articulate a case and the prospects of success. Again, my earlier decisions pertain.
When that balance is performed it favours the dismissal of the application for injunction.
I accordingly dismiss the Application in a Case filed 2 May 2012

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 29 May 2012.

Associate:

Date: 7 June 2012

[2012] FamCA 423

29 May 2012

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Abuse of Process

Costs

Procedural Fairness