Farrell (by her next friend Ronald Charles Waugh) v Allum (as Executor of the will of Murray Keith Allum (Dec))
[2007] WASC 265
•11/08/2007
FARRELL (by her next friend RONALD CHARLES WAUGH) -v- ALLUM (as Executor of the will of MURRAY KEITH ALLUM (Dec)) [2007] WASC 265
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 265 | |
| Case No: | CIV:1466/2007 | 9 OCTOBER 2007 | |
| Coram: | McKECHNIE J | 8/11/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | CAROL ELIZABETH FARRELL (by her next friend RONALD CHARLES WAUGH) MURRAY JOHN ALLUM (as Executor of the will of MURRAY KEITH ALLUM (Dec)) |
Catchwords: | Inheritance Leave to commence proceedings Whether just and proper Arguable case for relief |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7, s 8 |
Case References: | Clayton v Aust (1993) 9 WAR 364 Dempster v NCSC (1993) 9 WAR 215 Farrell v CSL Ltd [2004] VSC 308 Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51 Grigoriou v Nitsos [1999] WASCA 42 Haines v ABC (1995) 43 NSWLR 404 In Re Allen (Dec) [1922] NZLR 218 Re Dennis (dec) (1981) 2 All ER 140 Re Salmon (dec) [1981] Ch 167 Subasa v State Trustees Ltd [2007] VSC 399 Vigolo v Bostin [2005] HCA 11; 221 CLR 191 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Will of MURRAY KEITH ALLUM (Dec)
- Plaintiff
AND
MURRAY JOHN ALLUM (as Executor of the will of MURRAY KEITH ALLUM (Dec))
Defendant
Catchwords:
Inheritance - Leave to commence proceedings - Whether just and proper - Arguable case for relief
(Page 2)
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7, s 8
Result:
Application refused
Category: B
Representation:
Counsel:
Plaintiff : Dr J J Hockley
Defendant : Mr E A Lynn
Solicitors:
Plaintiff : Marks & Sands
Defendant : Lynn & Brown
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Dempster v NCSC (1993) 9 WAR 215
Farrell v CSL Ltd [2004] VSC 308
Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51
Grigoriou v Nitsos [1999] WASCA 42
Haines v ABC (1995) 43 NSWLR 404
In Re Allen (Dec) [1922] NZLR 218
Re Dennis (dec) (1981) 2 All ER 140
Re Salmon (dec) [1981] Ch 167
Subasa v State Trustees Ltd [2007] VSC 399
Vigolo v Bostin [2005] HCA 11; 221 CLR 191
(Page 3)
- McKECHNIE J:
A father passes away
1 On 7 June 2006 Murray Keith Allum died leaving a will that he had made as long ago as 10 May 1978, despite his son occasionally raising with him the question whether he wished to change it. The will was a simple one page document that left everything to his wife in the first instance. She, however, had died on 15 July 1993. In that event, the will appointed his son, Murray John Allum, as the executor and left him a house at 162 Lakeside Drive, Helena Valley, with the contents. The balance of the estate was to be divided equally between his three daughters, one of whom is the present plaintiff Carol Elizabeth Farrell. The estimate of the share due to each daughter is $29,802 less a share of the debts, funeral, and testamentary expenses.
A claim is contemplated
2 Within two weeks of her father's death, the plaintiff instructed solicitors to make a claim against the estate pursuant to the Inheritance (Family and Dependants Provision) Act 1972 (WA). Probate was granted to Murray Allum on 1 September 2006. The solicitor for the plaintiff made a notation on the file that 28 February 2007 was the limitation date for bringing an action.
3 An informal conference was held between the parties on 25 October 2006 but failed to resolve the matter.
The time expires
4 The executor's solicitors wrote on a number of occasions to the plaintiff's solicitor but the plaintiff's solicitor overlooked the date of limitation and so it was not until 17 May 2007 that a motion was filed to bring an application under the Inheritance (Family and Dependants Provision) Act out of time.
Leave is required
5 Such an application can only be heard by the court if the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time: s 7(1).
6 Guidelines as to the principles upon which the jurisdiction to extend time were set out in Re Salmon (dec) [1981] Ch 167 at 174 and 175 by
(Page 4)
- McGarry VC and adopted expressly in this state in Clayton v Aust (1993) 9 WAR 364.
7 In the present case the estate has not been distributed. Negotiations had taken place. The time between the end of the limitation period and the application is not excessive. It seems clear that at all times the plaintiff wished to pursue her action and the failure to bring it within time was due to her solicitor. It would not be fair to visit the results of that inaction on the plaintiff: Grigoriou v Nitsos [1999] WASCA 42. The respondent did not really contend otherwise, accepting the law as laid down in Clayton v Aust.
8 Accepting that the burden is on the plaintiff to make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time, the real issue between the parties, as argument developed, was whether the plaintiff has established an arguable case for relief. If she has, the length of delay and the reason for it would not present sufficient reason to refuse to extend time and so it is to the central issue that I now turn.
Is there an arguable case?
9 The Inheritance (Family and Dependants Provision) Act:
[I]f the Court is of the opinion that the disposition of the deceased's estate effected by his will, … is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life [of the plaintiff]. (s 6(1))
10 The classic explanation of the provisions of the Act s 6 appears in In Re Allen (Dec) [1922] NZLR 218 per Salmond J:
The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. (220 - 221)
11 The High Court expressed differing views as to the relevance of 'moral duty' in Vigolo v Bostin [2005] HCA 11; 221 CLR 191. Gleeson CJ said:
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- In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description "moral". As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority. [25]
12 By contrast Gummow and Hayne JJ said:
'Moral duty' may often have been used as a convenient shorthand expression intended to do no more than invite attention to the questions presented by the relevant legislation. Its use, however, has led to reference being made to the 'moral claims' of those who seek further provision and that is an expression which is liable to being misunderstood just as its progenitor 'moral duty' may mislead. It is therefore better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language. In Permanent Trustee Co Ltd v Fraser, Kirby P and Sheller JA correctly indicated that what was said in the joint judgment in Singer should henceforth provide an appropriate guide to the construction and operation of the family provision legislation. [73]
13 Callinan and Heydon JJ took a middle road at [113].
14 The court may refuse to make an order on character or conduct grounds but there is no disentitling evidence in this case. In essence, the plaintiff's case is that by reason of her health problems and financial problems, the deceased, who knew of them, had a moral obligation to update his will to make proper provision for the her. The other daughters do not challenge the disposition.
15 An arguable case is just that. It is neither strong nor weak: It is arguable. In Re Dennis (dec) (1981) 2 All ER 140 at 145 Browne-Wilkson J said that an arguable case was:
[A] case fit to go to trial, and that in approaching that matter the court's approach is rather the same as it adopts when considering whether a defendant ought to have leave to defend in proceedings for summary judgment.
(Page 6)
16 This was cited with approval in Clayton v Aust per Malcolm CJ at 368. Interestingly, in the same year the Full Court delivered judgment in Dempster v NCSC (1993) 9 WAR 215. One of the matters in issue was the meaning of 'arguable case' within the provisions of the Justices Act 1902 (WA). In Dempster v NCSC Malcolm CJ said:
It is contended on behalf of the appellant that the expression 'arguable case' in s 187(1) meant 'capable of being arguable': see The Shorter Oxford Dictionary. In my opinion, having regard to the context, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. In this context, 'arguable case' necessarily has the same meaning as 'reasonable case', as that expression is used in O 20, r 19 of the Rules of the Supreme Court 1971. The case must be one which has 'some' chance of success: see Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 495. This will not be so in the absence of exceptional circumstances. (262)
17 It is clear then that the plaintiff has no great hurdle to jump. She does not have to establish her case; merely that it is arguable. For this reason, where there are matters of conflict in the evidence between her brother, her sister and she, it is not for me, at this stage, to resolve those conflicts of fact. However, there is considerable conflict on factual questions which I do need to resolve.
The plaintiff's contention
18 The question whether the plaintiff has established an arguable case is, in essence, that the will did not make adequate provision for the proper maintenance, support, or advancement in life, of the plaintiff. The fact that the will differentiated between the adult children is not to the point.
19 The plaintiff deposes to a harmonious and loving relationship with her father. There is nothing out of the ordinary in it and no suggestion is made that she had any promise or expectation of preferment under the will or that she had tended for him in ways that would give rise to some particular moral entitlement. Rather, as I have said, the plaintiff's case is advanced on the basis of her medical condition and financial need. It is to these matters that I turn my attention.
The effect of a judgment
20 This is an unusual case. A conflict of fact arises because the plaintiff took legal action in the Supreme Court of Victoria against CSL Ltd. On 26 August 2004 reasons for judgment were delivered by Bongiorno J: Farrell v CSL Ltd [2004] VSC 308. I will refer to this as the 'judgment'.
(Page 7)
- One live issue in that case was the plaintiff's medical condition, including her psychiatric condition. Another issue was her assets and liabilities and ability to earn an income. Each of these issues is relevant to this application. The plaintiff and her next friend have deposed on affidavit as to these matters. Bongiorno J made findings in respect of them. They were adverse to the plaintiff. The judgment is said to be on appeal and it certainly appears that is the case. The appeal is not progressing quickly. I take into account the fact that the judgment is under appeal. On 1 June 2007, the Court of Appeal made orders dispensing with the requirement for Mr Waugh, the litigation guardian, to appoint a solicitor and giving the litigation guardian 14 days to file and serve an amended notice of appeal. There is no evidence as to whether or not the amended notice of appeal was filed. In the meantime, and for the purposes of these proceedings, I have findings of fact made by a Supreme Court judge on issues that are the same as issues to which I must give attention.
21 There is a difference with a conflict of evidence between two deponents as to factual circumstances. Such a conflict is generally, and in this case, unable to be determined on affidavits. In establishing whether the plaintiff has made out an arguable case, I proceed on the basis that what she deposes to is arguably capable of being established. The position is different though when there is a judgment of a court of record because those facts have been considered and decided. It is not a case where an issue estoppel arises. It is a case where necessarily the plaintiff seeks to relitigate matters which have been the subject of judicial determination in a superior court. There is an analogy to cases of abuse of process: Haines v ABC (1995) 43 NSWLR 404 at 410 - 414. The necessity to relitigate arises because the plaintiff advances issues as to her health and finances in these proceedings that are relevant to whether, in the circumstances, the deceased made proper provision for her.
22 With the exception of an incident of pancreatitis this year, the evidence relied on by the plaintiff to support her medical condition is precisely the same evidence as she submitted for adjudication in the Supreme Court of Victoria. The evidence as to her financial position is, in many respects, very similar to that which she submitted for consideration to the Supreme Court of Victoria as part of her case. She submitted those matters and the court has ruled on them, albeit in a way which is adverse to her, both by way of positive findings and by way of conclusions adverse to her as to her credibility and, to a degree, that of Mr Waugh. The reasons expressed by Bongiorno J are detailed reasons upon some of the issues submitted for adjudication before him. They cannot be ignored or disregarded. They are matters of record. Where there is a difference
(Page 8)
- between evidence submitted in one court and evidence submitted in another, the decision of the first court may have little relevance to the proceedings in the later court. Where, as here, there is a close identity between the evidence and the decision, the later court must have strong regard to those findings as they relate to a party before it.
Present medical state: the plaintiff's evidence
23 Initially, this evidence was given by an affidavit of the next friend sworn 7 June 2007. Subsequently, the plaintiff herself swore an affidavit on 8 August 2007. The affidavits are very similar and I will refer to the plaintiff's affidavit.
24 The plaintiff deposes as to her medical treatment as follows:
41. I am in poor health.
42. In 1973, I was diagnosed with coeliac disease.
43. In 1974, I began treatment for Amenorrhoea.
44. Between 1976 and 1978, I was exposed to fertility drugs as part of my treatment for Amenorrhoea.
45. Following the Amenorrhoea treatment in the 1970s, I was advised by Professor Giles in 1993 that the hPG (human pituitary gonadotrophin) hormone treatment that I had received in the 1970's was contaminated and that all batches of hormones, including my own, were potentially infected with Creutzfeldt - Jakob disease (CJD).
46. Whilst it is impossible at this stage to diagnose whether I do or do not have CJD I have experienced many symptoms associated with the disease. Furthermore that advice has profoundly affected my psychiatric condition. This was further compounded by subsequent advice that my batches of the drugs were apparently related to the death of another recipient. Attached hereto and marked 'CEF 4' is a copy report from Professor SS Gubbay dated the 27th of March 2000.
47. Attached hereto and marked 'CEF 5' is a letter dated the 25th of June 2002 from Professor SS Gubbay Clinical Professor of Neurology which outlines various symptoms experienced by myself since being advised of the contamination and provides an overall summary of my treatment.
48. In particular, I have since 1993 experienced episodes of:
- (i) Fatigue. Attached hereto and marked 'CEF 6 and 7' are reports from Professor Reed dated the 30th of August 1993 and Dr Hollingsworth dated the 20th of December 1994.
(ii) Alopecia (hair loss). Attached hereto and marked 'CEF 8' is a report from Dr Donnelly dated the 22nd of April 1998.
(iii) Myokymia (muscle twitching). Attached hereto and marked 'CEF 9' is a report from Dr Poh Sien Loh dated the 26th of October 2000.
(iv) General diagnosis of severe anxiety, which continues. Attached hereto and marked 'CEF 10' a report from Dr David Smith - Psychiatrist dated the 31st of October 1996; the 11th of February 1999; and the 23rd of February 2000. Attached hereto and marked 'CEF 11' is a copy of a witness statement from Dr Nada Raich dated the 11th of July 2002.
- 49. I continue to experience medical symptoms related to my coeliac disease (allergy to gluten) and my psychological condition.
50. On the 7th of April 2007, I was conveyed to the emergency department at Blake Hospital Medical Centre in Bradenton, Florida, United States of America where I remained for two days. Test results so far have revealed that I have an inflammation of my pancreas in the location where the pancreas attaches to the bowel. At present that diagnosis is incomplete. Further tests are required to eliminate ovarian, bowel or pancreatic cancer.
51. As a consequence of the above, and in particular my psychiatric condition, Mr Waugh was first appointed my next friend by the State Administrative Tribunal, Western Australia on the 10th of October 2002, which continues today.
52. The Deceased was aware of my medical condition. He gave evidence on my behalf before the State Administrative Tribunal, Western Australia and attended all hearings.
25 All of the medical reports referred to in par 48 are matters which were tendered in evidence before Bongiorno J. Significantly, apart from the episode of pancreatitis referred to on 7 April 2007, none of the medical evidence tendered in these proceedings post-dates the judgment.
26 Each health issue or condition raised by the plaintiff, apart from pancreatitis, is dealt with in the judgment. In summary, each is rejected.
(Page 10)
Coeliac disease
27 Coeliac disease is a condition that affects the small bowel caused by sensitivity to gluten. At [18] of the judgment 'In fact, she said in her evidence (as did her ex-husband Ronald Waugh) that her coeliac disease was completely controlled by diet and had been for many years'.
Amenorrhoea
28 The plaintiff said she was exposed to fertility drugs as part of her treatment for Amenorrhoea. The judgment:
As I have already said, Mrs Farrell received HPG treatment between October 1976 and August 1978. She maintained that this treatment was for amenorrhea, not because she wished to have a baby. This assertion is not correct.
I do not accept the plaintiff's evidence in this trial as to the reason she consulted Dr Giles. She clearly did so because she wished to become pregnant. The course of treatment itself, as described by Dr Giles, which included a requirement that sexual intercourse take place at particular precise times leads inescapably to the conclusion that it was treatment for infertility, not amenorrhea. Further, Dr Papaelias was not Mrs Farrell's referring doctor in 1976. He did not commence seeing her until 1980. I regard Mrs Farrell's evidence as to the reason for her receiving the HPG treatment to be a deliberate falsehood told in the erroneous belief that her case would be improved if she could diminish the significance of the reason for seeking treatment. I reach this conclusion not only from the evidence but also from Mrs Farrell's demeanour at the time she gave her version of this aspect of her case and her pretended ignorance as to a connection between the requirement that she and her husband engage in sexual relations at times selected by Dr Giles and treatment for infertility. [47], [50]
Whilst it is impossible at this stage to diagnose whether I do or do not have CJD I have experienced many symptoms associated with the disease. Furthermore, that advice has profoundly affected my psychiatric condition
29 This was the issue in the judgment upon which the plaintiff lost.
This case concerns a woman, Mrs Carol Farrell (formerly Carol Waugh), who, although she has not contracted CJD (and, on the evidence, has now no greater risk of contracting it than any other member of the Australian population) is claiming damages from CSL Limited and the Commonwealth for psychiatric injury she claims to have suffered as a result of their exposing her to the risk that she might contract CJD as a result of having been treated with a hormone, human pituitary gonadotropin or HPG. [2]
(Page 11)
30 The plaintiff was advised by Professor Giles that the HPG hormone treatment she had received in the 1970s was contaminated and that all batches of hormones, including her own, were potentially infected with CJD.
Dr Giles said that after his conversation with her on 29 June 1993 he heard nothing further from Mrs Farrell until he read an article about her in the 'West Australian' newspaper of 2 July 1994. As, in that article, Mrs Farrell was quoted as being concerned as to whether she had received HPG from the same batch or batches of hormone which had been given to the women who died, he wrote to her again, offering to provide the necessary information to her which, he said, was easily ascertainable from his records. He invited her to phone him. He eventually spoke to her on 21 July when he told her she had not received hormone from the same batch as any of the women who died. The following day he wrote to her informing her of the batch numbers which the unfortunate dead women had received and enclosed a copy of her record which clearly demonstrated that she had received a different batch. All of this information could have been conveyed to Mrs Farrell a year earlier had she requested it. I am satisfied that it was only after Dr Giles sent her medical record to her under cover of his letter of 22 July 1994 that Mrs Farrell first saw that record. I do not accept her evidence that she received it a year earlier as she asserted. I am also satisfied that Mrs Farrell did not receive the copy of the Department of Health file to which I have referred until she received it from her then solicitors, Rennick Gaynor Kiddle Briggs who sent it to her under cover of a letter dated 14 July 1994 after they received it from the Department. Having regard to the content of that letter it is also highly likely that they did so as a result of a request from Mrs Farrell. [65]
Fatigue
31 Bongiorno J noted [95] that Dr Smith said that Mrs Farrell displayed symptoms of fatigue, amongst others. He accepted her history that her symptoms of fatigue first manifested themselves after she was told of the CJD risk.
Dr Smith's evidence does no more, in my opinion than establish that the plaintiff has displayed a set of complaints to him consistent with a diagnosis of depression. However, his diagnosis must be viewed against a background of the plaintiff's gross exaggeration amounting to mendacity in the witness box what I regard as her deliberate lying on a number of important matters and the fact that since before she commenced consulting Dr Smith and during the whole of the period she did so she has been pursuing this claim which, as she knew, involved an allegation of psychiatric injury which Dr Smith could support. Dr Smith, for his part, was prepared to keep seeing Mrs Farrell regularly and prescribing a moderate anti-depressant for her without affecting any apparent long term change in her condition. He stayed away from discussing what he regarded as difficult issues with her and although he said he believed her
(Page 12)
- to be honest I do not accept that he particularly turned his mind to this question during her therapy. Even if he did, his assessment was made in a therapeutic psychiatric setting where the emphasis is on treatment not the investigation of aetiology. His diagnosis of depression must also be viewed against his apparent acceptance of Mrs Farrell's capacity to engage in complex business affairs and play quite high level sport for her age consistently with that diagnosis, from which I infer that the depression described and apparently accepted by Dr Smith was a long way removed from the psychological state described by Mrs Farrell in this Court which, as she would have it believed, totally destroyed her earning capacity, her enjoyment of life, her relationships and much else besides.
The plaintiff's case is almost totally uncorroborated. Taking the whole of the evidence in this case into account, whilst it is possible that the plaintiff has been suffering from some psychiatric condition intermittently since 1994 it is equally possible that her complaints of psychiatric disability and its physical consequences have been feigned, either for financial gain or some other more obscure motive. Thus, the plaintiff has failed to establish an essential element in any cause of action which she claims to have against either defendant, namely damage flowing from a breach of a duty of care.
Even if, contrary to my finding, Mrs Farrell did suffer some psychiatric condition after mid-1994 or, for that matter, at some later time, it is clear that any such condition is and always has been considerably less severe than Mrs Farrell would have the Court believe. Even if Dr Smith's diagnosis is accepted it, itself, acknowledges a considerable residual capacity in the plaintiff not only for playing squash but also for engaging in business activities. On no basis does it support anything approaching a total loss of earning capacity or total disability in other respects as the plaintiff claims. [108], [137], [138]
Alopecia
32 In the judgment Bongiorno J held:
The first video showed Mrs Farrell on a squash court with a partner whom she identified as a Mr Danny Zande who, she said, was ranked about number 8 in the men's squash ranking in the State of Western Australia. The video was taken on 26 March 2003, some five weeks before the date upon which Mrs Farrell was giving her evidence. Whilst the video was informative in demonstrating Ms Farrell's capacity to engage in continuous relatively strenuous exercise it was equally significant in enabling a comparison to be made between her appearance and capacity for active movement at that time as against her appearance, demeanour and apparent capacity to move as at the date she gave evidence.
In the witness box MrsFarrell appeared as an extremely thin, almost cachectic, woman with bad posture and a gaunt appearance much older than her stated age. Her hair was cut extremely short (in the manner of a
(Page 13)
- short crew cut) and was dyed or bleached totally white. When moving in the court room to and from the witness box and in and out of the court MrsFarrell did so slowly and in the manner of someone in considerable discomfort if not pain. When she sat down she did so in a way which suggested that even that act produced discomfort or pain. She explained her need to almost shave her head as necessitated by hair loss she said she was suffering. I do not accept this explanation. Her hair, as I observed it, although extremely short, appeared to be of normal thickness. No alopecia was able to be observed.
On the video Mrs Farrell presented as an extremely active, physically fit woman much younger than her stated age with long, dark or even black hair tied in a ponytail. Her movements appeared effortless and, although she claimed that Mr Zande was not playing seriously and was merely returning the ball to her with each shot, she was able to cover the court in a way which one would expect of an experienced and skilful squash player. She also conceded that on at least two other occasions between the date upon which the video was taken and her giving evidence she had played squash at two other squash venues in Perth. [33] - [35]
Myokymia
33 Dr Poh Sien Loh's report (26.10.2000) which is 'CEF9' to the plaintiff's affidavit:
Examination at the time of admission revealed that she was a thin lady who was alert and orientated. Cardiovascular, respiratory and abdominal examinations were essentially normal. She had intermittent twitching in the right first and occasionally inter-web space of her right hand. She had some fasciculations in the muscles, initially thought to be twitches or fasciculations in her biceps muscle but this was not confirmed on further examination. Cranial nerves were essentially normal. The upper limb tone and power were normal. Co-ordination and sensory examinations were normal. She had normal upper limb reflexes including pectoralis major reflex. Tinel's sign was negative. Her lower limb reflexes were absent even with reinforcement but her plantars were flexor bilaterally. Her gait was a little unsteady and it appeared bizarre with some astasia/abasia.
She went on to have an E.M.G. to exclude a denervating process such as motor neuron disease as the presence of fasciculations had raised that possibility. This did not show any denervating process however it did show a myokymia with progressive discharge of the small muscles of the right hand. M.R.I. of the cervical spine excluded syrinx. It showed a left paracentral focal disc protrusion at C2/3 level which was not indenting the cord or causing any significant neural foraminal compromise.
After some physiotherapy and discussion with her with regards to the myokymia and reassurance that she did not have CJD or motor neuron disease, she was discharged. She will be followed up by Professor Gubbay
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- in the future. The possibility of Botox injection to prevent disabling myokymia symptoms were raised with her but she was not keen to have this at the moment as it was not interfering with her quality of life or activities of daily living.
34 This was dealt with in the judgment at [126] the judge noting that in the month before Dr Poh Sien Loh investigated Mrs Farrell's neurological status she had been runner-up in the Australian Masters Squash Tournament.
35 The report is seven years old and there is nothing to suggest she has sought treatment for myokymia thereafter or that it has any debilitating affect.
General diagnosis of severe anxiety
36 I refer to the judgment at [137] and [138] which have been previously set out.
Conclusion on medical condition
37 The plaintiff's medical condition is a fundamental part of the case she would seek to make if leave is granted to establish inadequate provision for proper maintenance or support, bearing in mind that the estate is modest. But the evidence she puts forward in support of it is completely contrary to the judgment to which I must have regard. It all relates to matters of historical content which have been disproved after trial. The only exception is the bout of pancreatitis which, on the evidence, seemed to have resolved after a two day stay in hospital. The plaintiff does not depose to any further treatment, merely the requirement for tests.
38 In consequence, there is no arguable basis to assert that the plaintiff has need of a financial provision for maintenance, support or advancement, because of her medical condition.
FINANCIAL POSITION
39 The plaintiff deposes as to her present financial position:
53. I am struggling financially. I have very limited income and significant debts.
INCOME
54. I was in receipt of a disability support pension in the sum of $505.50 each fortnight. On the 21st of November 2006 that pension was suspended and it has not been reinstated. Attached
- hereto and marked 'CEF 12' is a copy of the Disability Support Pension and the Notice of Suspension.
40 While it appears that the Disability Support Pension was stopped, the reason given was 'your Disability Support Pension has been stopped because our records show you are still overseas'. If the plaintiff has returned to the state there seems no reason why the Disability Support Pension should not continue.
55. I was in receipt of Family Assistance from the Australia Government Family Assistance Office. On the 5th of May 2006 that assistance was cancelled and has not been reinstated. Attached hereto and marked 'CEF 13' is a copy of that Notice of Cancellation.
41 The Family Assistance was stopped on 5 May 2006 for the following reason:
Your Family Tax Benefit has been cancelled because we have not received the form 'Review of Family Tax Benefit for a Child Turning 16' which we sent to you.
42 In other words, this is another matter well within the capacity of the plaintiff to rectify. I note that her son has a tennis scholarship in the USA.
56. The father of Ashby Farrell should have been paying $1272.25 per month (as at the 3rd of November 2006) however in the seventeen years of Ashby's life I have received spasmodic parental support from his father totally $4,452.00.
57. I have no other income save for what is provided by Mr Waugh.
58. Under the terms of our original Divorce Agreement Mr Waugh agreed to pay $250 per week to me. As I remarried and the children Mr Waugh and I adopted became adults, I was no longer entitled to income from Mr Waugh.
59. However, Mr Waugh continues to gratuitously provide ongoing assistance to Ashby, which helps provide him with opportunities that I may otherwise be unable to afford. I am very careful with my spending and the smallest assistance is used wisely and resourcefully. Mr Waugh ensures that Ashby and I retain my private medical coverage, have access to telephone communications, are given some travel assistance and occasionally protected from unexpected bills. I estimate that Mr Waugh contributes on average about $150 per week in cash or kind to Ashby and I.
(Page 16)
- LIVING EXPENSES
60. My living expenses are no less than $150-$200/week when my son Ashby is at home.
61. Because of my Coeliac disease I eat small meals each day. I can eat pure protein such as meat, chicken and fish, vegetables, and fruit. I tend to shop daily and purchase specials.
62. My son Ashby has a tennis scholarship at the Bollettieri Tennis Academy in Florida. He returns to Perth during school vacation time at the Academy.
43 The plaintiff has been employed in the past, including a period of self-employment. In view of the rejection of evidence concerning her medical condition, there is no reason why she could not be employed.
Property at 32 Buntine Road, Wembley
63. I am a general beneficiary of the CF Family Trust ('the Trust'). I have not received any financial benefit from that Trust.
64. Allregal Enterprises Pty Ltd (ACN 071 642 683) ('Allregal') is the registered proprietor of 32 Buntine Road, Wembley, being the Land comprised in Lot 3 on Diagram 50926 and being the whole of the land comprised in Certificate of Title Volume 1478 Folio 469 ('the Trust Property'). Allregal was the Trustee of the Trust. My children Michael Aaron Waugh and Donelle Seanne Waugh are now the Trustees of the Trust. Annexed hereto and marked with the letters 'CF-14' is a true copy of the Trust Deed dated 9 November 1995 and a copy of the Deed of Variation dated 23 December 2005.
65. The Trust Property's estimated value is $2,225,000.00 but it is encumbered by the following liabilities:
(i) Mortgage to Carpaolo Nominees Pty Ltd $828,372.00
(ii) Mortgage to Perpetual Trustees Pty Ltd $1,700,000.00
(iii) Shire Rate Arrears $6,977.85
(iv) Land Tax Arrears $24,337.65
(v) Water Rate Arrears $1,593.35
(vi) ATO Arrears $41,712.07
(vii) ASIC Arrears $1,301.00
Total Expenses $2,604,293.92
(Page 17)
44 The position in relation to this property is confusing. The plaintiff is a shareholder of Allregal Enterprises Pty Ltd (plaintiff's responsive affidavit 8 August 2007). Although it is said that the trustees have altered, the registered proprietor of 13 Buntine Road, Wembley remains Allregal Enterprises Pty Ltd.
45 Although the plaintiff refers to the change of trustees and says she is a general beneficiary of the CF Family Trust, in fact the situation is a little more than that because by the document dated 13 August 1996 in a declaration of trust the trustee 'hereby declares that it makes the purchase (of 32 Buntine Road, Wembley Downs) solely as trustee for the CF Trust and will hold the said property so purchased on Trust for the beneficiaries in accordance with the terms and conditions of the Trust'.
46 In addition to the matters mentioned in par 65 of the plaintiff's affidavit, the property is also encumbered by a caveat lodged by the Official Trustee in Bankruptcy. Although the plaintiff is no longer under bankruptcy administration the statutory declaration accompanying the caveat deposes that the bankrupt became bankrupt on 23 January 1998 and that the interest of the bankrupt in the land was vested in the Official Trustee and remains so vested notwithstanding the fact that the bankrupt has now been discharged from bankruptcy. This caveat was lodged on 30 January 2007. The end result may be that the plaintiff has no effective interest over 32 Buntine Road, Wembley.
Property at 6 Muston Grove, Churchlands
66. I am the registered proprietor of all that piece of land being portion of each of Herdsman Lake Lots 22 and 23 and being Lot 240 on Diagram 84869 and being the whole of the land comprised in Certificate of Title Volume 1980 Folio 69. Attached hereto and marked 'CEF 15' is a copy of Certificate of Title Volume 1980 Folio 69 and known as 6 Muston Grove Churchlands (the property). The property has an estimated value of $920,000.00.
67. The Property has the following income and expenditure:
(i) Annual Rental (2005/2006) $13,925.00
(ii) Annual Expenditure (2005/2006)-
* Adelaide Bank mortgage $32,616.00
* Shire Rates $1,717.52
* Land Tax $1,275.00
(Page 18)
- * Water Rates $1,136.25
* Total expenses $36,744.77
* Shortfall $22,819.77
68. The property has the following encumbrances and liabilities:
(i) Mortgage to Adelaide Bank of which I am
a Guarantor. Cash balance at 30 June 2006 $324,041.87
(ii) Second mortgage to Carpaolo Nominees
Pty Ltd - (Also secured against the property
At 32 Buntine Road, Wembley) $828,372.00
(iii) Shire rate arrears (21st of July 2006) $1,060.32
(iv) Water rate arrears (5th of January 2007) $3,358.65
47 The plaintiff has not chosen to support these amounts with documentation. Moreover, the figures quoted in some cases are a year out of date. I note also that the mortgage to Carpaolo Nominees Pty Ltd is also secured against 32 Buntine Road, Wembley.
MY OTHER LIABILITIES
69. I have issued legal proceedings against CSL Limited and the Commonwealth of Australia in the Supreme Court of Victoria Common Law Division No 6285 of 1994. My claim was dismissed, however, leave has been granted to appeal. The Australian Government Solicitor has made a claim against me for the sum of $1,351,145.37 for professional fees, Counsel fees and other associated legal costs. Attached hereto and marked 'CEF 16' is a copy of a letter dated the 22nd of September 2004 from the Australian Government Solicitor. Interest on this claim to date amounts to $397,094.27.
70. Blumers Personal Injury Lawyers, my former Lawyers in the Victorian Litigation have claimed for $125,079.41 together with interest, now in the sum of approximately $19,487.46, against me. Attached hereto and marked 'CEF 17' is a copy of the letter dated the 13th of November 2006 from Hammond Worthington Lawyers who act on behalf of Blumers Personal Injury Lawyers.
71. A claim by Jeremy Ludlow Barrister for the sum of $61,769.15 (which is disputed) is outstanding in another matter relating to the Royal Kings Park Tennis Club.
(Page 19)
- 72. A claim by Stephen Browne Lawyers for $21,103.62 is outstanding in relation to various matters.
Conclusion on financial affairs
48 From the plaintiff's affidavit it would appear that she has few, if any, unencumbered assets and considerable debts. Much of the debt has come from pursuing litigation unsuccessfully.
49 The state of her finances 10 years ago was the subject of the judgment:
Mrs Farrell acknowledged her signature on a fax cover sheet dated 22 April 1997 which apparently accompanied a loan application to WA Home Loans, the applicants being Ellen Park Enterprises Pty Ltd the address of which was Mrs Farrell's address at the time she gave evidence, 13 Buntine Road, Wembley Downs and Khris Jane Wiaceck whose address was given as 24 Derby Road Shenton Park. The application was for $450,000 and referred to the purchase of the property to be provided as security for the loan (13 Buntine Road, Wembley Downs) as $590,000. The application is accompanied by a photocopy of a passport in the name of Khris Jane Wiaceck. Although Mrs Farrell acknowledged her signature and her handwriting on the document she said that she could not recall the application for the loan or the company, Ellen Park Enterprises Pty Ltd. Khris Wiaceck was a name used at some stage by Mrs Farrell. It was also the name of a man with whom she had been romantically involved after her marriage to Stedroy Farrell.
The loan application itself is not completely filled in but it does contain financial information which shows gross salary/wages of between $200,000 and $300,000, a car valued at $88,000, furniture valued at $150,000, $40,000 in a savings account and notes a dispute with the Tax Department over an alleged taxation liability which is shown as $17,000. Whether these amounts refer to Mrs Farrell personally or to the company which appears to have been a co-applicant it is impossible to say. Mrs Farrell was, at this time, an invalid pensioner. [24], [25]
50 Bongiorno J concluded:
The only conclusion possible with respect to Mrs Farrell's business dealings is that it is virtually certain that she has set out to mislead this Court as to the true state of her financial and other dealings, especially since mid-1993 but probably also before that time. Some light has been thrown upon them by a lengthy cross-examination but I am satisfied that the Court has by no means heard the whole story. Such information as has been exposed demonstrates clearly that Mrs Farrell's contention that since mid-1993 she has been psychiatrically disabled from engaging in incoming producing activity cannot be sustained. [29]
(Page 20)
Conclusion
51 I have remarked before that this case is unusual.
52 It is clear from her evidence in Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51 that the plaintiff has been a very competent squash player. Having regard to the rejection of the medical evidence, there is no reason to suppose that she is any less competent now or that she suffers from a physical or mental ailment that would prevent her from engaging in employment.
53 The plaintiff is utterly unable to establish an arguable case for need, maintenance or support, in respect of her physical condition. After the hearing, the solicitors for the plaintiff drew my attention to the decision in Subasa v State Trustees Ltd [2007] VSC 399.
54 I have not found the case useful. It was decided entirely on somewhat unusual facts and does not purport to lay down general principles. The plaintiff established a claim by evidence. The effect of my analysis of the judgment and the plaintiff's affidavits in this case is that there is no evidence to support her claim for proper maintenance or support.
55 As to her financial position, the evidence she has tendered would suggest that the cessation of Centrelink benefits was due to her being overseas or failing to file the correct form; each potentially reversible conditions. Her acquisition of valuable real property and her encumbrance of that property are part of the incidents of life and do not of themselves establish an arguable case for maintenance or support.
56 The legal fees incurred are a direct consequence of actions she has taken to advance her perceived interests. I do not see how it is arguable that a wise testator would, in the circumstances, regard these matters as requiring specific provision from a modest estate, especially when any money would be used to pay past legal fees and would not advance the plaintiff by way of maintenance or support. They would disappear into a black hole. The position in this respect is similar to Re Dennis at 145.
57 For these reasons the application fails and is dismissed.
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