Emerson v Raphael - [2022] WASC 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   EMERSON -v- RAPHAEL [2022] WASC 309
CORAM:   SOLOMON J
HEARD:   6 SEPTEMBER 2022
DELIVERED          :   6 SEPTEMBER 2022
PUBLISHED           :   13 SEPTEMBER 2022
FILE NO/S:   CIV 1903 of 2022
BETWEEN:   PETER GRAHAM EMERSON
Plaintiff

AND

STEPHEN JOSEPH RAPHAEL
Defendant

Catchwords:

Injunction – Interlocutory - Whether the plaintiff has established a serious question to be tried – Whether the plaintiff a de facto partner of the deceased - Whether the balance of convenience favours injunctive relief – Grant of administration – Balance of convenience - Injunction granted to restrain interference, distribution or disposal of assets in estate – Turns on own facts

Legislation:

Nil

Result:

Interlocutory injunction granted

Category: B

Representation:

Counsel:

Plaintiff	:	C Breheny
Defendant	:	B Soactar

Solicitors:

Plaintiff	:	JK Legal
Defendant	:	Tang Law

Case(s) referred to in decision(s):

Britt v Office of the State Coroner [2022] WASCA 75
G v O (2018) 53 WAR 393
G v O [2018] WASCA 211; (2018) 53 WAR 393
G v O [2022] WASCA 23
GLS v Weisz [2018] WASC 79; (2018) 52 WAR 413
Lynam v Director General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

SOLOMON J:

(This judgment was delivered extemporaneously on 6 September 2022 and has been edited from the transcript)

Introduction

This matter was commenced by a writ of summons dated 30 August 2022. It came before me on the same day on an urgent basis. On that afternoon the plaintiff sought urgent interlocutory relief essentially to restrain the defendant from exercising powers that he had obtained by the letters of administration which were granted to him by the court on 8 August 2022 in respect of the estate of Jorje Jano Raphael, whom I shall refer to as the deceased.
Notice on that occasion was given to the defendant's solicitors, but it appears they were unable to attend on that urgent basis and the matter proceeded in the defendant's absence, although I note that efforts were also made by the court to contact the defendant's solicitors just prior to the hearing commencing. In the absence of the defendant, I granted an interim order in the terms essentially sought by the plaintiff and ordered the parties to confer with each other and with the court to enable the matter to come back as quickly as possible in the presence of both parties.
On that occasion the plaintiff sought other ancillary orders in relation to a citation. That was essentially dealt with by my orders on 30 August 2022 and is no longer pressed. The substantial relief that is pressed is the maintenance of the interlocutory injunction which restrains the defendant from exercising powers in respect of dealings with the estate.
The matter came before me on 1 September 2022 and after dealing with the programming of the matter, I listed the matter for an urgent hearing on a contested basis in respect of the interlocutory injunction for 11.00 am today, 6 September 2022.

The Application

The circumstances that provide the background to this matter are set out in the affidavit of the plaintiff Mr Emerson which was sworn on 29 August 2022. The plaintiff also filed an affidavit of a solicitor from the law firm he engaged, Ms J A Keatley, sworn on 30 August 2022. Pursuant to the orders I made programming the matter on 1 September 2022, the plaintiff now also relies upon the affidavits of Ms Christine Dall and Ms Fiona Adams both sworn on 2 September 2022.
The defendant filed an affidavit by Mr Soactar, who is the defendant's counsel, dated 1 September 2022. I shall return to that affidavit later in these reasons.
The deceased died intestate on 3 July 2022, and therefore the entitlements to her estate are governed by the Administration Act 1903 (WA), and in particular s 14. The relevant item of s 14 is item 3 which provides that if the estate is less than the sum of $705,000 then the entire estate goes to a husband or wife. There is no contest here that that provision applies, because the estate on any version of the evidence is worth less than the stipulated amount.
Section 15 provides that a de facto partner is included within the terms of item 3. Therefore, if the plaintiff was a de facto partner of the deceased, he is solely entitled to the estate. Section 25 provides, essentially, that the grant of administration follows that entitlement. It is therefore the case that if the plaintiff was the de facto of the deceased at the time of her death, he is also entitled to the grant of letters of administration. I will recite only in broad outline the background set out in the affidavit of Mr Emerson.

Background

The plaintiff and the deceased were married in December 1985 and during their marriage they bought a property in Bedfordale and owned that property as joint tenants. The deceased and the plaintiff separated in 2008 and were divorced in March 2011. In 2013 the deceased lost her job in Broome and returned to Perth and moved into the Bedfordale property. The Bedfordale property comprises two dwellings. One is described as a house, and the other is described as a self‑contained flat. The deceased moved into the self‑contained flat and the plaintiff continued to live in the house. The plaintiff gave sworn evidence that after the deceased moved into the flat in 2013, the relationship gradually rekindled although the parties continued to live in the separate abodes on the property.
The plaintiff's evidence is that from 2015, the relationship resumed in much the same way as it had been during their married life. The plaintiff does not give an exact date as to when that happened other than by reference to the year of 2015, and that was the subject of some strong criticism by the defendant's counsel who said that the duration of the de facto relationship is an important element in identifying whether a de facto relationship exists. I shall return to that issue in these reasons.
The plaintiff gave further evidence about the relationship in the sense of the affectionate way in which the defendant and the deceased would refer to each other, their mutual expression of love and the manner in which they cared for each other during various occasions of illness. It is not necessary for me to provide the detail, which is set out in Mr Emerson's affidavit.
The plaintiff also gives evidence of a considerable amount of time spent together. His sworn evidence was that the plaintiff and the deceased holidayed together in other states and spent many evenings, meals and weekends together. The plaintiff's evidence demonstrates, however, that not only did the plaintiff and the deceased live independently in the sense that the plaintiff continued to live in the house and the deceased lived in the flat, but that they maintained their own finances including separate phone landlines and motor vehicles.
The plaintiff also annexed various Valentine, Christmas and birthday cards in which expressions of affection were articulated by the deceased towards the plaintiff in ways that manifested an obvious level of affection and love.
The deceased became terminally ill earlier this year and for a period of time moved in with the plaintiff in his house where he was able to care for her better but, ultimately, she moved back into her flat at the last stages of her life because that was a home more able to accommodate her ongoing and increasing difficulties and disabilities.
The plaintiff also gave evidence of having paid for a number of things including various medical items for the deceased, although it is not entirely clear the extent to which that occurred. The evidence is sufficiently clear that the plaintiff expended some significant sums for the care of the deceased. As the deceased's health deteriorated in late April 2022, her brother, who is the defendant, came from South Australia and, it appears, lived with the deceased until her death.

The role of the defendant

The deceased died on 3 July 2022. Thereafter a rather acrimonious relationship developed between the plaintiff and the defendant. On the plaintiff's sworn evidence at least as early 23 July 2022 the plaintiff told the defendant that in his view, he was a de facto and entitled as a de facto to the deceased's estate. That was plainly disputed by the defendant and continues to be. That is the substance of the contest in this proceeding.
The relationship between the plaintiff and the defendant continued to deteriorate and the plaintiff has annexed to his affidavit text messages from the defendant dated 25 July 2022, which contain what can only be described as some rather unedifying and hostile comments but are not comments directly relevant to the substance of the matter that I need to decide.
The defendant applied for letters of administration to this court without reference to the plaintiff, who did not know that the application had been made and soon after engaged his solicitors to lodge a caveat against the estate. By that time, letters of administration had already been granted to the defendant. The plaintiff, as I understand it, draws the inference that the defendant not only did not advise the plaintiff of his intention and his application, but did not bring to the attention of the court the plaintiff's claim which the plaintiff says he has made clear to the defendant. At any rate, the court granted letters of administration to the defendant on 8 August 2022 and it is that grant or the powers consequent upon that grant in respect of which the plaintiff seeks interlocutory relief.

Interlocutory Injunction – general principles

The central issue here is whether there is a serious question to be tried as to whether there was a de facto relationship between the plaintiff and the deceased. And, of course, the other issue in broad terms that I must consider is the balance of convenience. Those two factors are not unrelated. As was explained by Beech J in Twinside v Venetian Nominees:
As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 54 - 55; Todd v Novotny [2001] WASC 171. The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14].[1]
[1] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [11].
In respect of a serious question to be tried, the authorities demonstrate that it is not necessary to show that the plaintiff's success is more probable than not. It is sufficient that the plaintiff shows a sufficient likelihood of success to justify the preservation of the status quo.
Related to that is the nature of the rights the plaintiff asserts and, importantly, the practical consequences likely to flow from the orders the plaintiff seeks. Essentially, the grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial. That equation illustrates why the strength of the prima facie case and the balance of convenience or the consequences of granting or not granting interlocutory relief are interrelated.

De facto relationship

The definition of a de facto relationship is set out in s 13A of the Interpretation Act 1984 (WA) (the Act). That provision sets out factors which the statute refers to as indicators of whether or not a de facto relationship existed, but that are not essential. In other words, they are not exhaustive of the various indicia that may establish a de facto relationship. This court has considered those provisions in a number of decisions including G v O (2018) 53 WAR 393, and again between the same parties G v O [2022] WASCA 23, and most recently in Britt v Office of the State Coroner [2022] WASCA 75. I will not read out the relevant passages of those cases, but I do draw attention to some paragraphs that I think are of particular significance.
In Britt v Office of the State Coroner, Murphy and Beech JJA observed that:
… the broad language of s13A of the Interpretation Act, like s4AA of the Family Provision Act 1975 (Cth), accommodates the great variety of ways a de facto relationship may exist. The relevance and relative significance of those factors listed in s 13A(2) will depend upon the circumstances of the case and the particular relationship.
Fifthly, the extent of detail provided or not provided on particular matters is to be evaluated in the context of the weight of the evidence considered as a whole.[2]
[2] Britt v Office of the State Coroner [2022] WASCA 75 [18] – [19]
Their Honours went on to say that:
Retrospectant evidence will often be of particular importance in determining when and whether the parties entered into a de facto relationship because, unlike in the case of a former marriage, there will typically be no single event in a de facto relationship which indelibly stamps not only the legal characterisation of the relationship but its commencement date. All of the circumstances of the case must be considered as a whole.[3]
[3] Britt v Office of the State Coroner [2022] WASCA 75 [22].
At [73] of that decision Mitchell JA distils the various cases into a useful summary and continues with relevant observations at [74] and [75]. Importantly, in the summary at [73(2)], Mitchell JA stated that:
The concept of a marriagelike relationship involves a consensual union which is intended by the parties to endure. In the case of marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage-like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship.[4]
[4] Britt v Office of the State Coroner [2022] WASCA 75 [73].
In the first of the G v O[5] decisions, the Court of Appeal observed at [59] that what is required by the court is an overall assessment of the facts and the relevant elements of the relationship, citing observations of Fitzgerald J in the decision of Lynam v Director General of Social Security.[6]
[5] G v O [2018] WASCA 211; (2018) 53 WAR 393.
[6] Lynam v Director General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128, 131.
Importantly, their Honours concluded:
Ultimately, it is necessary to consider all of the evidence as to the nature of a relationship, having regard to the indicia in section 13A, and to decide whether it supports the conclusion that the parties are living together in a marriage-like relationship.[7]
[7] G v O [2018] WASCA 211; (2018) 53 WAR 393 [60].
I turn then to the particular indicia set out in the Act. The first is the length of the relationship. The plaintiff that the relationship – whatever its nature and content was – has endured since 2015, and he characterises it as similar to, or very much the same as, the relationship that the parties had when they were legally married.
As I have observed, the defendant is critical of the failure of the plaintiff to be more precise about the commencement of the relationship and how precisely it did evolve into a de facto relationship. I think there is some force in the defendant's criticism, but at the same time, as a number of decisions have observed, including those referred to by the defendant's counsel, it is often very difficult to pinpoint when a de facto, as opposed to a legal marriage, commences. The tenor and flavour of the plaintiff's evidence is that it was gradual and incremental, and, therefore, it may indeed not be possible to identify the commencement date, other than to say that, to the extent of the relationship, whatever its nature and content was, it has been on foot for more than two years, because at some stage, either in 2015 or at some stage thereafter, the relationship reached the maturity that the plaintiff alleges it contained.
Turning, then, to whether they resided together, counsel for the plaintiff drew my attention to the first decision in G v O,[8] and also the decision of Martin CJ in GLS v Weisz,[9] where distinctions are draw between 'living together' and 'residing together'. The essence of the de facto relationship is, relevantly, a shared life, which is a critical indicator to establishing a de facto relationship. In essence, the plaintiff contends that he and the deceased had a shared life and intended for that the endure.
[8] G v O [2018] WASCA 211 ; (2018) 53 WAR 393.
[9] GLS v Weisz [2018] WASC 79; (2018) 52 WAR 413, 101.
The next element is the nature and extent of common residence, and it is not in contest that the parties lived on the one property but in two separate residences on that property. That is a factor, plainly, that weighs against the finding of a de facto relationship.
The next element is whether there is, or has been, a sexual relationship between them. The plaintiff quite candidly accepts that there was not an intimate relationship of that nature. There appears to have been affectionate physical contact, but the plaintiff says that due to physical and mental health issues there had always been some difficulty regarding sexual intimacy between the plaintiff and the deceased, and that was perhaps more acute with the resumption of their relationship. If the matter is to go to trial, then that is something that, on the basis of what the defendant's counsel included in his submissions, might be the subject of some further testing and questioning.
The next element is the degree of financial dependence or interdependence and any arrangements for financial support. Again, I have already observed that the parties were essentially financially independent but that, particularly as the health of the deceased deteriorated, the plaintiff provided more ongoing and increasing support. Even that was limited to particular items, but nevertheless some support was provided. It cannot be said on the evidence before me that there was overall in this relationship financial dependence or interdependence.
The next element is the ownership, use and acquisition of their property. The parties owned the property as joint tenants. I think it not insignificant (although the level of significance may be for another day) that the parties owned the property as joint tenants, thus meaning that whoever survived the other would become the owner. Notwithstanding their divorce, now more than ten years ago, they did not seek to change that arrangement.
I am also of the view that there is some significance in the evidence that the plaintiff and the deceased were making plans to purchase a property together, and the most likely intent was to purchase together a property in Shoalwater. Nothing came of that for various reasons, but the evidence of that mutual intention to buy another property together is of some significance.
The next factor is the degree of mutual commitment by them to a shared life. In my view, on the evidence presented by the plaintiff, this is perhaps the strongest platform upon which he asserts that there was a de facto relationship, because his evidence is that their expression and feelings of mutual commitment and a shared life together was an enduring commitment shared by both of them as part of a common intention, in the sense described by the authorities.
The next element is whether they cared for and supported children, and that plainly is not relevant.

The final factor or indicator in the Act is the reputation and public aspects of the relationship between them. In that respect there are two affidavits, one each from Ms Dall and Ms Adams, who depose to the affection and relationship they observed between the plaintiff and the deceased, and that they regarded them as a couple.
At the directions hearing of 1 September, the defendant's counsel drew to my attention an email that the deceased had sent to her lawyers in respect of a will that it appears the deceased was contemplating executing, and an email from a lawyer in that office to the deceased which purports to confirm the instructions of the deceased. It is important to observe this is not a communication from the deceased but a lawyer subsequently confirming the instructions in an email.
The significance of the email is that it includes as the first point a reference to the plaintiff (by the wrong name, but it is plain enough that it is the plaintiff) as an 'ex‑husband'. The defendant says that that is indicative of the fact that she did not regard the plaintiff as a spouse, because she referred to him as an ex‑husband. In my view, there is not a lot that can be drawn from that at this stage of the proceeding because it is not written by the deceased, and the court does not know whether it reflects the wording used by the deceased, and even if it does, whether that was simply wording used to identify the person rather than to refer to the nature of the continuing relationship. I am therefore unable to place much reliance on that piece of evidence.
I observe however, that the email purports to confirm an instruction from the deceased to leave her 'jointly owned property' to the plaintiff. It is of course unclear whether the deceased appreciated that this would occur in any event by survivorship. It may nevertheless be significant that the deceased articulated a wish that her most significant asset (by some significant measure, it appears) should go to the plaintiff.

Disposition

I return to the observations made by Beech J in the decision in Twinside and the various observations I have already referred to regarding the nature and content of a de facto relationship. It is plain that in order to assess whether there was a de facto relationship, it is necessary to look at the evidence carefully and as a whole. At this stage my observation is that while the plaintiff's counsel has characterised the evidence as plainly establishing a serious question to be tried, and the defendant's counsel has said it is wholly inadequate, in my assessment, and at this stage, the evidence falls in between those two extremes.
The evidence is not overwhelming, and it is plain that certain important indicia of a common de facto relationship were not present. However, the notion of a de facto or marriagelike relationship is broad and multifactorial and very contextually based and needs to be considered against all the available evidence in order to reach a determination.
In addition, I turn to the balance of convenience as a factor in whether the interlocutory injunction should be granted.
The estate consists primarily of cash and some motor vehicles. There is no real risk that assets will dissipate, and therefore it seems to me that the grant of interlocutory relief will create very little, if any, prejudice to anyone if it is granted. In those circumstances the court can afford to be a little more generous in its assessment of the evidence that has been filed and its assessment of the prospects of the plaintiff establishing his case at trial.
In addition to that, the acrimonious relationship between the plaintiff and the defendant, the sort of language that the defendant used in communications with the plaintiff, and the fact that the defendant, at least on the evidence before me, made an application to the court without reference to the plaintiff and without any reference, it appears, to the plaintiff’s claim, suggests to me that there is reason to grant interlocutory relief, and that the consequences of not granting interlocutory relief are likely to be more significant than if I were to grant it.
In all the circumstances, therefore, I find that although the case as it is presented by the plaintiff at this stage could not be characterised as strong, it is sufficient, in my view, given the authorities, to establish a serious question to be tried in the relevant sense. Particularly in light of the factors I have mentioned in respect of the balance of convenience, I am persuaded that the interlocutory injunction should continue.
I also intend to maintain the order that there be liberty to apply, because if anything arises in relation to the estate, then if the parties cannot resolve that between them, I need to provide for the opportunity to come back to the court for any issue to be resolved. I also consider that the costs should be in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
13 SEPTEMBER 2022