Duffy v Duffy

[2001] NSWSC 309

CITATION:

Duffy v Duffy [2001] NSWSC 309 revised - 11/05/2001

CURRENT JURISDICTION:

Equity

FILE NUMBER(S):

SC 11507/98; 2805/00; 5142/98; 4796/99; 4901/99; 4902/99

HEARING DATE(S):

03/04/01; 10/04/01; 11/04/01; 12/04/01

JUDGMENT DATE:

12 April 2001

PARTIES :

No. 11507/98
Bernard John Duffy, Marie Louise Henry and Gregory Edmund Duffy (Plaintiffs)
Kevin Michael Duffy (First Defendant)
Sandra Ann Duffy (Second Defendant)

No. 2805/00
Kevin Michael Duffy (First Plaintiff)
Sandra Ann Duffy (Second Plaintiff)
Bernard John Duffy (First Defendant)
Gregory Edmund Duffy (Second Defendant)
Marie Louise Henry (Third Defendant)

In the matter of the Estate of the late Kevin Duffy deceased and the Family Provision Act 1982
No. 5142/98
Kevin Michael Duffy (Plaintiff)
Bernard John Duffy (First Defendant)
Marie Louise Henry (Second Defendant)

No. 4796/99
Rita Ellen Duffy (Plaintiff)
Bernard John Duffy (First Defendant)
Marie Louise Henry (Second Defendant)

In the matter of the Estate of Ellen Margaret Duffy deceased and the Family Provision Act 1982
No. 4901/99
Kevin Michael Duffy (First Plaintiff)
Sandra Ann Duffy (Second Plaintiff)
Bernard John Duffy (Defendant)

In the matter of the Estate of John Charles Gerard Duffy deceased and the Family Provision Act 1982
No. 4902/99
Kevin Michael Duffy (First Plaintiff)
Sandra Ann Duffy (Second Plaintiff)
Bernard John Duffy (First Defendant)
Gregory Edmund Duffy (Second Defendant)

JUDGMENT OF:

Santow J

COUNSEL :	J Pentelow (Plaintiffs 2805/00; 4901/99; 4902/99; 5142/98; Defendant 11507/98) D G Stewart (Plaintiff 4796/99) M J Jenkins (Plaintiff 11507/98) R S Toner,SC/ M J Jenkins (Defendants 2805/00; 5142/98; 4796/99; 4901/99; 4902/99)
SOLICITORS:	Whiteley, Ironside & Shillington (Plaintiff 11507/98. Defendants 2805/00; 5142/98; 4796/99; 4901/99; 4902/99) Marsdens (Defendant 11507/98. Plaintiff 2805/00; 5142/98; 4901/99; 4902/99) Longman Hill (Plaintiff 4796/99)
CATCHWORDS:	PROCEDURE — Striking out inadequately pleaded defence where basis of possible claim apparent from affidavit in possession proceedings should have been accompanied by reasonable stay of possession orders to permit adequately pleaded defence — That factor gave rise to the special circumstances operating as exception to Anshun estoppel when defences which could have been raised in proper pleading the basis for claims against estate.
LEGISLATION CITED:	Supreme Court Rules Pt 4 r2(1)(e), Pt 15 r3, Pt 15 r15 and Pt 17 r2 of
CASES CITED:	Johnson v Gore Wood & Co [2001] 2 WLR 72 Turner v Bulletin Newspaper Co Pty Ltd (1973) 131 CLR 69
DECISION:	Consent orders made.

REVISED — 11 May, 2001
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 11507/98
Bernard John Duffy, Marie Louise Henry and Gregory Edmund Duffy
Plaintiffs

Kevin Michael Duffy
First Defendant
Sandra Ann Duffy
Second Defendant


No. 2805/00
Kevin Michael Duffy
First Plaintiff
Sandra Ann Duffy
Second Plaintiff

Bernard John Duffy
First Defendant
Gregory Edmund Duffy
Second Defendant
Marie Louise Henry
Third Defendant

In the matter of the Estate of the late Kevin Duffy deceased and the Family Provision Act 1982

No. 5142/98
Kevin Michael Duffy
Plaintiff

Bernard John Duffy
First Defendant
Marie Louise Henry
Second Defendant


No. 4796/99
Rita Ellen Duffy
Plaintiff

Bernard John Duffy
First Defendant
Marie Louise Henry
Second Defendant

In the matter of the Estate of Ellen Margaret Duffy deceased and the Family Provision Act 1982

No. 4901/99
Kevin Michael Duffy
First Plaintiff
Sandra Ann Duffy
Second Plaintiff

Bernard John Duffy
Defendant

In the matter of the Estate of John Charles Gerard Duffy deceased and the Family Provision Act 1982

No. 4902/99
Kevin Michael Duffy
First Plaintiff
Sandra Ann Duffy
Second Plaintiff

Bernard John Duffy
First Defendant
Gregory Edmund Duffy
Second Defendant

JUDGMENT — ex tempore

1    It is appropriate that I make some brief observations whilst at the same time congratulating the parties in achieving a settlement of what has undoubtedly been a matter of some complexity and in which no doubt there were strong feelings. As I said in encouraging such settlement, it is generally better for future relations for family disputes to settle in such a way when this is possible.

2    I need briefly to deal with the first two sets of orders made in relation to two Notices of Appeal. The first is in the Common Law proceedings before Master Harrison and the second in Equity proceedings from Master McLaughlin.

3    In the transcript of 10 April 2001 at 64 to 67 I dealt with those appeals by indicating the provisional views that I had then formed. The outcome was that the parties agreed that the Notice of Appeal be dealt with by consent in the manner that the orders reflect.

4    For the future, I should simply say in relation to the Notice of Appeal from Master Harrison that her conclusion that the Defence of Mr Kevin Duffy, Jr in the possession proceedings must be set aside was inevitable. The concern that I earlier expressed was that where a defence is accompanied by an affidavit, and the latter discloses an arguable case, it is appropriate that, by parity of reasoning to that in Turner v Bulletin Newspaper Co Pty Ltd (1973) 131 CLR 69 at 97-8 per Jacobs J, there should still ordinarily be leave granted to remake the defence, clearly only within a reasonable time frame.

“In my opinion there is no power to dismiss an action when a statement of claim which discloses a cause of action is struck out because of defects in the form of pleading. This cannot be done directly and it cannot be done indirectly by imposing conditions relating to the form of pleading, breach of which will result in dismissal of the action. Where the form of pleading is defective the Court can certainly strike it out entirely and is not bound to reframe it for the plaintiff’s benefit. But when it does so, leave to remake it must be given, if leave is necessary. In Cashin v Cradock (1876) 3 Ch.D 376 at 377 Bacon VC said
‘It is not for me to point out to the plaintiff how he might frame his statement of claim if he has any cause of complaint against the defendants. If he does not take advice, he must run the risk of acting upon his own judgment. But it is my plain duty not to permit the practice of this Court to be made an instrument of oppression, and I think that I should oppress the defendants grievously if I suffered them to be called upon to answer such a statement as this. The statement is unintelligible, and inexcusable in many respects; it is incoherent; there are inconsistencies between asking for a specific performance of the contract, and the enforcement of the consequences of the non-execution of a decree in which that contract was involved. It would be impossible to deal with such a case as the plaintiff states. It is a mercy to him not to permit such a statement to remain upon record. The consequence of its remaining would most likely be utter defeat to the plaintiff, even if he has any right claim. All that I can do is to direct this statement to be struck off the records of the Court. At the same time, I cannot withdraw from the plaintiff, and I will not withdraw from him the right to make another statement if he has cause of complaint.’”

5    Thus I do not accept the distinction drawn in the present circumstances between Turner (supra) where the Statement of Claim disclosed a cause of action whose form was not supportable and, as here, a pleaded defence which depended on the supplementation of an affidavit. I say so notwithstanding Pt 4 r2(1)(e) (requiring a claim for possession to be pleaded by statement of claim), Pt 15 r3, Pt 15 r15 (requiring a properly pleaded defence) and Pt 17 r2 of Supreme Court Rules. In other circumstances a stricter approach may be appropriate. But here the Defendant, though given every consideration by Master Harrison, was without legal help, save in the earlier stage where a crude defence was drafted. The combination of defence and affidavit did disclose an arguable cause of action for which a short period of leave to re-plead should have been allowed in the circumstances, though the Defendant in those proceedings declined to have an adjournment for that purpose.

6 While it is true that such a defence is, under the Supreme Court Rules, to be found in the pleaded defence when matters proceed by pleadings, rather than eked out from affidavit material, the interests of justice particularly with a litigant in person but also more generally, ordinarily called for that kind of leave. That leave would have involved the learned Master giving a reasonable stay of the possession order to give Mr Kevin Duffy, Jr the opportunity to re-frame his defence so it was adequately pleaded.

7 I turn now to the consent orders setting aside the orders of Master McLaughlin. What the Master had earlier decided, that Anshun estoppel applied to prevent Mr Kevin Duffy, Jr pleading his amended case, was inevitable on the material before him; that is, given the relationship between the possession proceedings before Master Harrison, and the overlapping issues raised by the Statement of Claim subsequently brought by Mr Kevin Duffy, Jr. The overlap related to various claims framed in promissory estoppel, trust and Family Provision Act. The “special circumstances” that I have identified, which operate as a qualification upon Anshun estoppel, were not put to Master McLaughlin. Special circumstances here are that Mr Kevin Duffy, Jr, not having had a reasonable stay of the possession order to give him the opportunity to re-frame his defence so it was adequately pleaded, was thereby precluded from later bringing his current proceedings against the estate, by reason of claimed Anshun estoppel. Australian courts have not followed the recent decision of the House of Lords in Johnson v Gore Wood & Co [2001] 2 WLR 72 in removing the special circumstances exception save as they re-emerge in considering the balance of justice between the parties.

8    The special circumstances thus comprehend that had an appeal been brought in timely fashion from Master Harrison’s determination, that appeal would likely have been successful. But the delay in bringing that appeal invokes discretionary considerations as does the intervening tenancy. That delay must be fatal to a successful appeal. However, the first proposition suffices to preclude Anshun estoppel in the circumstances. For it would be fundamentally unjust now to prevent the Plaintiff Mr Kevin Duffy, Jr from raising the arguable matters which his now properly pleaded Statement of Claim disclosed. Those circumstances include the fact that default judgments may more readily give rise to special circumstances precisely because there is no argument on the merits; see Spencer Bower Turner and Handley “Res Judicata” (Butterworths, 1996) at 189 and in particular the cases noted in footnote 60. Thus I quote from the passage discussing the UK authorities on this species of estoppel though predating Johnson v Gore Wood & Co (supra):

“But though this principle is generally applicable even where judgment has been given by consent, or on admissions, it may be excluded in ‘special circumstances’.59 This is particularly relevant to default judgments; for there is an obvious difference between such a judgment and one where the unsuccessful party has contested the substantive decision, although he may make some admission in the process.60 “
59 Henderson n 56 above. The words in the text from the 1st ed were adopted by Lord Maugham LC in New Brunswick [1939] AC 1 at 21. See also Fidelitas Shipping (above) per Denning MR at 640: ‘this is not an inflexible rule’.
60 New Brunswick at 28, 38 and Kok Hoong [1964] AC 993 at 1012.

9    I should acknowledge the fairness of the Defendant executors in recognising that position and readily agreeing to consent orders which allowed the true issues to be dealt with. That in turn has led to the settlement which was achieved. In so acknowledging the executors’ position I would also acknowledge the fact that Mr Kevin Duffy, Jr’s legal advisers pursued with appropriate tenacity the rights they considered should be vindicated on his behalf.

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Last Modified: 05/14/2001