Estate of Adrian Dennis Pamplin, Deceased

[2015] NSWSC 1864

Supreme Court

New South Wales

Medium Neutral Citation:

Estate of Adrian Dennis Pamplin, Deceased [2015] NSWSC 1864

Hearing dates:

7 December 2015

Date of orders:

07 December 2015

Decision date:

07 December 2015

Jurisdiction:

Equity - Probate List

Before:

Lindsay J

Decision:

Order that proceedings be referred to the Registrar to appoint a date for hearing of an interlocutory dispute about the production of documents relating to the estate, or notional estate, of a deceased person.

Catchwords:

PROCEDURE – Supreme Court procedure – Procedure under Uniform Civil Procedure Rules and other rules of court – Evidence - Subpoenas - Case management – Competing applications for administration of deceased’s estate – Contest about size and composition of deceased estate – Availability of processes for compulsory production of documents

Legislation Cited:

-

Cases Cited:

-

Texts Cited:

-

Category:

Consequential orders (other than Costs)

Parties:

2014/00173587
Plaintiff: Ann Margaret Irwin
Defendant: Marie Pamplin

  2014/00214419
Plaintiff: Marie Pamplin
Defendant: Ann Margaret Irwin

Representation:

Counsel:
2014/00173587
Plaintiff: M Stevens
Defendant: R Kako

 

2014/00214419
Plaintiff: R Kako
Defendant: M Stevens

   

Solicitors:
2014/00173587
Plaintiff: Mersal & Associates
Defendant: Winter Legal

  2014/00214419
Plaintiff: Winter Legal
Defendant: Mersal & Associates

File Number(s):

2014/001735872014/00214419

Judgment – EX TEMPORE

1. Before the Court are two sets of proceedings concerning the estate of Adrian Dennis Pamplin, who died on or about 24 August 2014. The deceased died intestate.

2. At the core of the proceedings are competing applications for administration of the deceased’s estate. In the proceedings numbered 2014/00173587, the plaintiff is Ann Margaret Irwin (“Ann”), who claims to have been the deceased’s de facto partner at the time of his death. In the proceedings numbered 2014/00214419, the plaintiff is Marie Pamplin (“Marie”), the mother of the deceased. Each woman is the defendant in the other’s proceedings.

3. The parties are agreed that the main questions for determination in the principal proceedings are: First, whether (as Ann contends and Marie disputes) Ann was the de facto partner of the deceased at the time of the deceased’s death. Secondly, whether Ann ought to be granted family provision relief from the estate or notional estate of the deceased. Thirdly, what is the size and position of the estate and any notional estate of the deceased?

4. Whether there is any real dispute about Ann’s claimed status as de facto partner of the deceased is, at least, a question which may require critical assessment.

5. In affidavits respectively sworn by Ann and the deceased on 31 January 2008, in proceedings 2008/277508 against Ann’s father, each of them describes the other as “my de facto [spouse]”.

6. Ann also proffers documentation (the precise provenance of which needs to be investigated), said to have been generated by the deceased on an application for insurance, in or about July or August 2014, in which he describes Ann as his de facto wife.

7. That said, it is not necessary or appropriate at this stage of the proceedings to do more than to note that there may, or may not, be an ongoing contest as to Ann’s status as an alleged de facto partner of the deceased when the underlying facts have been the subject of further investigation.

8. The large issue in the proceedings really is the third one, relating to the size and composition of the deceased’s estate and any notional estate.

9. Ann contends that, in an endeavour to keep knowledge of his assets away from public authorities with which he had earlier been engaged, the deceased hid his interests in properties in family arrangements with his mother (Marie), who, it is said, acted in various capacities as a trustee for him. Marie denies those allegations, root and branch.

10. The principal proceedings cannot advance very far without this conflict being dealt with at the interlocutory level appropriate to consideration of whether Ann can, and should be permitted to, use the subpoena and notice to produce procedures of the Court to investigate underlying facts about property transactions.

11. Marie protests that Ann is seeking to reverse the onus of proof she bears in the principal proceedings by seeking “discovery” of facts via subpoenas and a notice to produce.

12. In effect, Marie seeks to limit Ann’s investigations to whatever Ann can obtain via searches of public registers and the like. She also seeks to resist Ann’s interlocutory investigations by attempting to elevate Ann’s contentions about property ownership into a quasi-form of final contest, contending Ann should articulate every aspect of her case with a precision Ann says she cannot do without the aid of the Court.

13. By these means, Ann contends, Marie attacks every attempt by Ann to explain the forensic purpose for which she (Ann) seeks the production of documents.

14. In formal terms, the parties’ dispute has crystallised in a notice of motion filed by Marie on 12 March 2015, seeking orders to have subpoenas and a notice to produce relied upon by Ann set aside.

15. In formal terms, the parties’ dispute on the motion has developed to the extent that Ann also seeks now to issue four additional subpoenas; but this development has not shifted the parameters of the parties’ ongoing interlocutory dispute. Ann seeks the production of documents. Marie resists the production of documents.

16. Marie urges the Court to proceed to a determination of the question of the parties’ competing applications for administration - essentially the “de facto relationship” dispute - but I see little advantage in that.

17. The focus for attention, in getting the proceedings towards an orderly final determination, ultimately returns to the third question; namely, that relating to the size and position of the deceased’s estate and any notional estate. It may be that in pursuing that third question evidentiary material will come forth enabling a more summary determination to be made one way or the other about the existence or otherwise of a de facto relationship at the time of the deceased’s death.

18. In case management of the proceedings, it seems to me that Ann should be permitted at this stage a reasonable opportunity to investigate facts relating to the deceased’s ownership of property.

19. The difficult question is not so much that, but what is “a reasonable opportunity” when one descends to consideration of the facts of the case.

20. This may be an over-simplification but, for present purposes, it identifies the nature of the present interlocutory problem that needs to be addressed.

21. The parties have set out their competing cases on this interlocutory problem in written submissions, which refer to evidence relied upon in support of those submissions.

22. Ann has prepared written submissions dated 15 October 2015 and 27 November 2015. Her written submissions in reply were prepared on 5 December 2015.

23. Marie’s written submissions have been prepared in two stages. The first set of written submissions bears no date but comprises twenty-seven paragraphs on four pages. The second set of written submissions is dated 3 December 2015.

24. The parties’ dispute on Marie’s notice of motion needs to be assessed in the light of these written submissions.

25. Given the nature of the dispute, it cannot readily be dealt with in the course of the ordinary Probate List day. It requires a special fixture; that is, a full day allocated to it.

26. The parties tell me that the dispute might be determined within half a day. I doubt that, unless concessions are to be made on one or both sides of the record.

27. Accordingly, I order that the proceedings be referred to the Registrar to fix Marie’s notice of motion (and the associated dispute about additional subpoenas referred to in the parties’ written submissions) for hearing on the basis that that hearing will occupy one day.

28. I reserve all questions of costs.

29. I also order that each party to these proceedings have access to the court file in respect of the proceedings numbered 2008/277508.

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Decision last updated: 08 December 2015