Gardner v Selby

Case •

[2022] NSWSC 298

•

22 March 2022

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Gardner v Selby [2022] NSWSC 298
Hearing dates: 17 February 2022
Date of orders: 22 March 2022
Decision date: 22 March 2022
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court orders:

(1)   The Defendants’ notice of motion filed 19 August 2021 seeking summary dismissal is dismissed.

(2)   The costs of the notice of motion be the Plaintiff’s costs in the cause.

(3)   The proceedings be stood over for directions in the Succession List on Friday, 1 April 2022.

Catchwords:

PRACTICE AND PROCEDURE - Summary dismissal - Principles applicable - Question whether the Supreme Court of NSW has jurisdiction to make a family provision order where, at the time of death, the deceased was domiciled outside New South Wales, but where there was, and is, property situated within New South Wales that may be the subject of a notional estate order - Whether appropriate for summary dismissal where question of construction of statute, the Succession Act 2006 (NSW) may be considered

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-60, 66(1), 100

Justice Legislation Amendment Act 2018 (NSW)

Succession Act 2006 (NSW), Ch 3, ss 2, 33, 48(1)(b), 57(1)(d)(e)(f), 63(1), 63(5) and 64

Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 13.4

Cases Cited:

Alesco Corporation Limited v Te Maari [2015] NSWSC 469

Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433

Australian Competition and Consumer Commission v PRK Corporation Limited [2008] FCA 403

Barns v Barns (2003) 214 CLR 169; [2003] HCA 9

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

Bodikian v Sproule (2009) 72 ACSR 598; [2009] NSWSC 599

Brindley v Wade [2019] NSWSC 303

City of Sydney Council v Satara [2007] NSWCA 148

Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968

Duraisamy v Sydney Trains [2019] NSWCA 269

Estate Grundy; La Valette v Chambers-Grundy (2018) 17 ASTLR 64; [2018] NSWSC 104

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69

Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177

Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508

Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113; [1932] HCA 1

Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86

In re Rules of the Supreme Court 1971 (WA); ex parte Nikoloff [2019] WASC 263

In the matter of Skypac Aviation Pty Ltd (in liquidation) [2019] NSWSC 291

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60

Morgan v Union Shipping (NZ) Ltd [2001] NSWSC 325

NRMA Insurance Ltd v AW Edwards Pty Ltd (1995) 11 BCL 200

Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19

Pethybridge v Gillard & Anor [2022] NSWSC 10

Preston v Star City Pty Ltd [1999] NSWSC 1273

Rafailidis v Camden Council [2021] NSWSC 1087

Re Berchtold; Berchtold v Capron [1923] 1 Ch 192

Re Crook (1936) 36 SR (NSW) 186

Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104

Re Paulin [1950] VLR 462

Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66

Ridgley v Oliver [2019] NSWSC 329

Shaw v State of New South Wales [2012] NSWCA 102

Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1

Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; [2001] UKHL 16

Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272

Worladge v Doddridge (1957) 97 CLR 1; [1957] HCA 45

Xiang Bht Cao v Tong [2021] NSWSC 44

Category:Procedural rulings
Parties: Caitlin Isabelle Gardner (Plaintiff/Respondent)
Joy Lorraine Selby (first Defendant/Applicant)
Ronald Gordon Selby (second Defendant/Applicant)
Representation:

Counsel:
Dr S Chapple (Defendants/Applicants)
Ms R Bianchi (Respondent/Plaintiff)

Solicitors:
Butlers Inheritance Lawyers (Defendants/Applicants)
Shine Lawyers (Respondent/Plaintiff)
File Number(s): 2021/149672
Publication restriction: N/A

Judgment

  1. At its core, this case raises an important, interesting, but what I have found to be, a somewhat difficult, question relating to the jurisdiction of this Court to make a family provision order, pursuant to Chapter 3 of the Succession Act 2006 (NSW), in respect of movable property, situated within New South Wales, when the deceased, at the time of his death, was domiciled outside New South Wales.

  2. By Summons filed on 26 May 2021, the Plaintiff, Caitlin Isabelle Gardner, commenced proceedings seeking a family provision order for her maintenance and advancement in life out of the estate and/or notional estate of John Edward Selby (the deceased). She also sought interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and an order for her costs of the proceedings.

  3. The deceased did not leave a Will and his parents, Joy Lorraine Selby and Ronald Gordon Selby, are the Defendants, having obtained a grant of letters of administration on intestacy, in Queensland, on 12 November 2020. On 16 June 2021, they filed an Appearance in these proceedings.

  4. On 19 August 2021, the Defendants caused to be filed a notice of motion, in which they sought an order “pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), or otherwise pursuant to the inherent jurisdiction of the Court, that the Summons be dismissed generally.” They also sought an order for costs.

  5. The Defendants’ notice of motion must be considered in the context of the statutory regime contained in Chapter 3 of the Succession Act. Its basis is that, at the time of his death, the deceased was domiciled in Queensland, outside the territorial jurisdiction of the Supreme Court of New South Wales. It was submitted that this Court has no jurisdiction to deal with the Plaintiff's claim.

  6. This application is one for an interlocutory order: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1 at [2] (Gleeson JA, with whom Basten and McCallum JJA agreed).

Procedural History

  1. For reasons to which I shall come, it is first necessary to set out, in some detail, the procedural history of the proceedings.

  2. On 30 August 2021, when both parties were legally represented, the Court made directions for each party to deliver an outline of submissions in relation to the Defendants’ notice of motion. In so doing, it was hoped that the matter might be able to be dealt with, in Chambers, on the papers.

  3. On 14 September 2021, having observed that a Notice of Intention of Ceasing to Act had been e-filed by the Plaintiff’s solicitor, the Court re-listed the proceedings for further directions.

  4. On 20 September 2021, when the matter was next listed, counsel for the Plaintiff appeared, as a matter of courtesy, and stated that his instructing solicitors had filed a Notice of Ceasing to Act. For this reason, there had been a failure to comply with the Court’s direction regarding the filing and service of written submissions on behalf of the Plaintiff.

  5. The matter was then adjourned until 18 October 2021. On that occasion, the Plaintiff appeared, in person, and the Court suggested that she attempt to obtain other legal representation. The proceedings were then adjourned until 1 November 2021, when, initially, the Plaintiff did not appear, but appeared later in the morning. The matter was again adjourned until 15 November 2021, when the Plaintiff appeared in person, and the notice of motion was listed in a Call-over on 10 December 2021, to obtain a hearing date with an estimated duration of 3 hours.

  6. On 10 December 2021, the Plaintiff did not appear, and the notice of motion was listed, for hearing, on 17 February 2022, with a pre-trial directions hearing to take place on 2 February 2022. As it was clear when the matter was listed, that the Plaintiff resided in Queensland, the hearing was required to be conducted remotely, with each party appearing by video-link, using Microsoft Teams.

  7. Following the conclusion of the Call-over, at my request, my Associate forwarded, to the Plaintiff, at the email address that had been provided by her, copied to the Defendants’ solicitor, an email in the following terms:

“This email is sent on behalf of his Honour

Dear Ms Gardner,

Please find below the orders made by his Honour in this matter this afternoon:

1. Orders that the notice of motion filed 19 August 2021 be listed for hearing in the Succession Running List on Thursday, 17 February 2022 with an estimated duration of 3 hours.

2. Directs that the legal representative of the Defendant must monitor the correctness of the trial time.

3. Directs that if the estimate for trial changes, the legal representative of the Defendant is to notify the Succession List Judge within 48 hours of becoming aware of that change.

4. Appoints 9:50 a.m. on Wednesday, 2 February 2022 as the date for a pre-trial directions hearing.

Please ensure that the above dates in Paragraph 1 and 4 (underlined) are noted.” (Emphasis in original email)

  1. On 31 January 2022, my Associate sent another email to the Plaintiff and to the legal representatives of the Defendants, identifying “the link to Microsoft Teams for 2 February 2022”, which would enable each to appear remotely.

  2. There was no appearance by, or on behalf of, the Plaintiff at the pre-trial directions hearing on 2 February 2022.

  3. In view of her not having legal representation, my Associate, at my request, sent an email, copied to the Defendants’ legal representatives, shortly after the conclusion of the directions hearing, in the following terms:

“This email is sent on behalf of his Honour

Dear Ms Gardner,

Please find below the direction made by his Honour this morning when the matter was listed:

1.   Directs that each party deliver to the Chambers of the Succession List Judge, in hard and soft copy, an Outline of Submissions, which is to include an index of affidavits upon which it is intended to rely, by 4:00 p.m. on 9 February 2022, and serve a copy of the same on the other party by the same date and time.

The matter remains as listed for hearing on Thursday, 17 February 2022.” (Emphasis in original email)

  1. The Plaintiff did not provide any outline of submissions in accordance with the Court’s direction.

  2. On 14 February 2022, my Associate sent an email to the Plaintiff and to the legal representatives of the Defendants, identifying “the link to Microsoft Teams for the hearing of the matter on 17 February 2022” which would enable each party to appear remotely.

  3. No response was received from the Plaintiff, or on her behalf, to any of the emails to which reference is made above.

  4. On 17 February 2022, the matter commenced at 10:00 a.m. and present, on the Microsoft Teams Link, were the Plaintiff, counsel for the Defendants, Dr S Chapple, and his instructing solicitor, Ms J Butler.

  5. The Plaintiff, who, again, was not legally represented, appeared, and stated that she could not proceed with the hearing. She stated that she had understood the notice of motion was listed for hearing on 22 February 2022. When asked how she came to this understanding, she could not point to any correspondence, or explain, otherwise, how she came to have that understanding. The Plaintiff also asserted that she had been upset by the proceedings (which was demonstrated during the course of the discussion with the Court). When asked, the Plaintiff stated that she had discussed the matter with a solicitor who was unavailable to appear at the hearing.

  6. Counsel for the Defendants opposed any application for the adjournment of the hearing of the notice of motion. He pointed to the procedural history of the matter and submitted that no satisfactory reasons had been advanced to justify an order that the hearing should be adjourned.

  7. In all the circumstances, I was satisfied that the Plaintiff had been given every opportunity to participate in the hearing of the Defendants’ application. She had not appeared when the notice of motion was listed for hearing, following which the Court had informed her, by email, of the directions that had been made. Additionally, shortly before each Court listing, she had been provided with the Microsoft Teams Link. She had not responded to any of the email correspondence from the Court.

  8. The Plaintiff had been directed to serve submissions (Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 at [7] – [8]) but did not do so. She had been given the right to be heard but had chosen not to take advantage of that right.

  9. Whilst the Court understands that litigation is stressful, for all litigants, and an unrepresented litigant may not understand the import of the processes of the Court, I am unable to accept that there was a reasonable basis for the Plaintiff’s understanding that the notice of motion was listed on 22 February 2022, bearing in mind the email correspondence from the Court. She did not deny that she had received each email.

  10. Section 66(1) of the Civil Procedure Act 2005 (NSW) relevantly provides that subject to rules of court, the court may, at any time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

  11. In City of Sydney Council v Satara [2007] NSWCA 148 at [17], the Court of Appeal suggested that the approach the court should take, when applying case management provisions of the Civil Procedure Act is to strike a balance between the competing needs of the parties and determine whether, on balance, justice demands that a party should be given an indulgence. The ultimate aim of the court is to do justice. In doing so, the Court must consider the position of both parties.

  12. In Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [34], I noted that the Defendant, in that case, was unrepresented, and concluded that this fact, alone, does not mean, “they should be treated… with greater consideration than litigants who are legally represented”.

  13. As was written, more recently, in Duraisamy v Sydney Trains [2019] NSWCA 269, by Bell P at [25]:

“I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court’s endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

‘the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.’”

  1. Naturally I also had regard to the obligations imposed by s 56 to s 60 of the Civil Procedure Act 2005 (NSW): Rafailidis v Camden Council [2021] NSWSC 1087 at [17] (Robb J); Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177 at [45]-[46] (Ierace J). Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. The court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57 in turn requires the court to have regard to specified matters. Section 58 requires the court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and the court must have regard to the provisions of ss 56 and 57.

  2. Whilst it cannot be said that there is an immediate urgency to have the notice of motion heard, it has been over 6 months since it was filed, and the date of hearing had been made clear to both parties. Whilst the Plaintiff has been unrepresented for some time, the Defendants have appeared throughout and have, no doubt, incurred legal costs. They also incurred the costs of legal representation at the hearing.

  3. Additionally, I was not satisfied, bearing in mind the nature of the proceedings, that to grant the Plaintiff’s application could be properly compensated by an order for costs, even if those costs were calculated on the indemnity basis.

  4. Weighing up all of the considerations, I informed the Plaintiff that the Court was not prepared to adjourn the hearing of the notice of motion, in the absence of a satisfactory explanation for her inability to proceed.

  5. Following the Court explaining the matter would proceed, counsel for the Defendants commenced to read the documents upon which the Defendants relied. This prompted another assertion by the Plaintiff, this time that she had not received the documents. It appeared, after discussion, that the Plaintiff, had, in fact, been sent an email on 9 February 2022, by the Defendants’ solicitors, with a copy of the documents attached, a matter she did not dispute.

  6. The Plaintiff then indicated that she may be able to obtain legal assistance from the solicitor with whom she had discussed the matter. Without objection, the matter was stood down in the List to enable her to contact the solicitor to whom she had spoken, to see if that solicitor could appear.

  7. Following the adjournment, Ms M Trost, solicitor, appeared. She stated that she did not have much by way of instructions, so it was necessary for the Court to explain, in a summary way, the procedural history and what had happened at the hearing.

  8. Following the explanation, Ms Trost, co-operatively and helpfully, if I may say, indicated that if the matter were stood down until later in the day, she would be able to appear more fully instructed. Without objection from the Defendants’ counsel, the Court acceded to the suggestion.

  9. When it recommenced at 2:00 p.m., the hearing proceeded with the reading of the evidence. Following this being done, oral submissions were made by counsel for the Defendants.

  10. As Ms Trost had not had the opportunity to consider the Defendants’ evidence and the written submissions in detail, and as I formed the view that she was doing all that she could to assist in the determination of the proceedings, including having spoken to counsel who was prepared to act for the Plaintiff on the notice of motion, the Court extended the time for the Plaintiff to file and serve submissions, in writing, to 4:00 p.m. on 1 March 2022, and directed the Defendants to file and serve submissions in reply by 4:00 p.m. on 15 March 2022. The parties’ submissions have now been received and I shall refer to them later in these reasons.

Background Facts

  1. It is next necessary to place the relief sought in the notice of motion in a broader factual context. I have taken the following background facts from the affidavits read on the notice of motion. It is unlikely that there is any dispute about the facts that I shall state. (I should mention that the Defendants have filed and served only the Paragraph 9.1 and 9.5 affidavits required by Paragraph 9 of Practice Note SC Eq 7.)

  2. The deceased was born in June 1978 and died on 1 June 2020.

  3. In 1989, when the deceased was 11 years old, the Defendants moved to Queensland, taking the deceased with them. The deceased attended primary and secondary school in Queensland.

  4. In about 2010, the deceased purchased a property located at Kenilworth Street, Toowoomba, Queensland. He lived in that property until his death. From 1989, he did not live, or work, outside the state of Queensland.

  5. At the time of the deceased's death, he held the following assets:

  1. real property at Kenilworth Street, Toowoomba, Queensland ($310,000);

  2. various motor vehicles (collectively, $24,000); and

  3. various items of personalty ($32,500).

  1. All of the deceased’s actual estate was held in Queensland. Its gross value was estimated to be $366,501, but the deceased also had some liabilities ($228,569). The estate has largely been administered and after payment of the liabilities, the actual estate comprised:

  1. cash in bank ($28,117);

  2. vehicles ($16,000); and

  3. personal effects ($10,000).

  1. It is an actual estate of extremely small value and it is all situated in Queensland.

  2. However, the Defendants have given evidence that the deceased was the beneficiary of a life insurance policy and held two superannuation accounts, namely:

  1. Suncorp Master Trust Superannuation Account ($7,441);

  2. OnePath Life Insurance Policy Benefit ($1,628,891); and

  3. OnePath Superannuation ($40,000).

  1. For the purposes of the notice of motion, they accepted that, at least, the proceeds of the death benefit held by OnePath Life Insurance are located within New South Wales. Otherwise, they asserted that there is no property of the deceased within New South Wales.

  2. The Defendants also accepted that whilst the proceeds of the death benefit do not fall within the actual estate, it was arguable that it was property that may be able to be designated as notional estate “subject to the Supreme Court of New South Wales having the requisite jurisdiction”. (The Court is not asked to determine the question whether a designating order would be made at a final hearing.)

  3. There was no evidence of any relevant Trust Deed, so it is not possible to say whether the death benefit was required, thereunder, to be paid in any particular way, for example, in accordance with a nomination, or as the Trustee determined in its absolute discretion, or otherwise.

The Plaintiff’s case

  1. It is next necessary to say something about the factual basis of the Plaintiff’s case. I set out what follows knowing that her evidence has not been tested. However, on this application, the Court is not called upon to make findings of fact. In considering whether the onus which falls upon the Defendants has been met, the case advanced by the Plaintiff must be approached on the basis that, at this stage, the evidence sought to be relied on must be taken at its highest: Bodikian v Sproule (2009) 72 ACSR 598; [2009] NSWSC 599 at [2]-[4] (Austin J); Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 at [37] (Schmidt J); Ridgley v Oliver [2019] NSWSC 329 at [10] (R A Hulme J).

  2. What follows should not be regarded as findings of the Court in respect of any facts stated (to the extent that any are subject of dispute).

  3. The Plaintiff commenced the proceedings by Summons filed on 26 May 2021. There is no dispute that the proceedings were commenced within the time prescribed by the Act.

  4. The Plaintiff stated in her affidavit in support thereof, that she was a person with whom the deceased was living in a de facto relationship at the time of his death; a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member; and a person with whom the deceased was living in a close personal relationship at the time of his death.

  5. (Counsel for the Defendants said, at the hearing, that whilst “there is a dispute as to the nature and quality of the relationship”, the Defendants were “not suggesting the plaintiff is not an eligible person”: Tcpt, 17 February 2022, p 6(33-39)).

  6. The Plaintiff asserted that she is unemployed and does not own any property or other assets. She receives $418 per fortnight by way of payment from the Jobseeker scheme. She has no funds in her bank account and she does not have any other form of savings.

  7. Unless found to have been a spouse of the deceased at the date of his death, she is not entitled to any provision out of the deceased’s estate under the operation of the intestacy rules.

  8. She asserts that if she is an eligible person by reason only of sub-paragraphs (d), (e) or (f) of the definition of eligible person in s 57(1), then, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. Finally, she asserts that adequate provision for her proper maintenance, education or advancement in life has not been made by the operation of the intestacy rules in relation to the estate of the deceased. She seeks such order for provision out of the estate of the deceased person as the Court thinks ought to be made for her maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made.

  9. As stated, the Defendants have not filed and served any evidence in reply to the Plaintiff’s substantive case.

  10. There was no dispute, if there is jurisdiction, that a family provision order may be made in relation to the estate of a deceased person (s 63(1) of the Succession Act). Such an order may also be made in relation to property that is not part of the deceased person’s estate but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Succession Act (s 63(5)).

  11. As stated, counsel for the Defendants accepted that “[t]he only property located within New South Wales is the death benefit held by OnePath Life Insurance. While that is not an estate asset, it is arguable that it is capable of being designated as notional estate (subject to the Supreme Court of New South Wales having the requisite jurisdiction)”: Paragraph 10 of Defendants’ written Outline of Submissions dated 6 September 2021.

The Defendant’s Submissions

  1. Although not specifically referred to, it seems that what is being submitted is reminiscent of what was written by Lord Hope of Craighead in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; [2001] UKHL 16 at [95], in relation to the equivalent power in England for summary disposition. His Lordship wrote:

“...it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible.”

  1. Counsel for the Defendants, in his written submissions, also submitted that the common law position with respect to the jurisdiction of the Supreme Court of New South Wales under family provision legislation is set out by Scholl J in Re Paulin [1950] VLR 462 at 465 which is:

  1. the Court of the domicile alone can exercise jurisdiction in respect of moveable and immovable property of the deceased in the place of the deceased’s domicile;

  2. the Court of the domicile alone can exercise such jurisdiction in respect of moveable property of the deceased outside the place of domicile; and

  3. the Court of the situs alone can exercise such jurisdiction in respect of immovable property of the deceased outside of the place of domicile, and Court of the place of domicile cannot exercise such jurisdiction.

  1. Counsel submitted that the common law position had been modified by s 64 of the Succession Act when that Act came into force. Until 2 July 2018, that section had provided:

A family provision order may be made in respect of property situated in or outside New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales.

  1. He submitted that s 64 had extended the jurisdiction of the New South Wales courts over moveable and immovable property outside New South Wales, where the deceased died domiciled outside of New South Wales. He pointed to the case of Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508, in which Brereton J had held that, to the extent that s 64 (as originally drafted) sought to deal with property outside New South Wales of a testator who died domiciled outside New South Wales, the section was beyond the constitutional competence of the New South Wales legislature.

  2. His Honour in that case had observed, however, that the section (my emphasis) was not beyond power in relation to:

  1. movables in New South Wales of a deceased person who died domiciled outside New South Wales; and

  2. immovables outside New South Wales of a testator who died domiciled in New South Wales.

  1. However, in 2018, s 64 of the Act was amended by the Justice Legislation Amendment Act 2018 (NSW). Currently, the section is in the following form:

A family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, only if the deceased person was, at the time of death, domiciled in New South Wales.

  1. (The amended s 64 of the Succession Act applies to the Plaintiff’s claim as the deceased died after the Act had been amended.)

  2. Counsel for the Defendants submitted that the amended version of s 64 extended the jurisdiction of the Supreme Court of New South Wales with respect to moveable and immovable property, but only in the circumstances where the deceased died domiciled in New South Wales. Where the deceased died domiciled outside New South Wales, the common law rules, as set out in Re Paulin, applied.

  3. In his Submissions in reply, counsel for the Defendants wrote that:

“[t]he effect of the amendment [to s 64] was to delete the legislative language that the Court relied upon in Hitchcock v Pratt (and subsequent cases) to extend the Court’s jurisdiction to movables in New South Wales of testators who died domiciled elsewhere. A plaintiff can no longer look to s. 64 to provide jurisdiction in such circumstances. Because the Court in Hitchcock v Pratt (and subsequent cases) relied upon the previous version of s. 64 to extend its jurisdictional reach, it must follow that the conclusion of the Court in those cases as to jurisdiction in respect of movables in New South Wales of testators who died domiciled elsewhere is no longer applicable now that s. 64 has been amended.

Of course, s. 64 (as amended) still operates to extend the jurisdiction of the Court beyond the common law, but now only in respect of immovable property outside New South Wales in circumstances where the deceased died domiciled in New South Wales. In the case of movables in New South Wales of testators who died domiciled elsewhere, the conventional view of jurisdiction in family provision matters applies – that is that it is the Courts of the domicile alone that have jursidction [sic] in respect of movable property outside the territory of the domicile (see Hitchcock v Pratt at [6]).”

  1. Therefore, it is the Defendants’ submission that:

  1. Where the deceased person died domiciled in New South Wales, the Supreme Court has jurisdiction in respect of moveable and immovable property both inside and outside New South Wales.

  2. Where the deceased person died domiciled outside New South Wales, the Supreme Court has jurisdiction in respect of immovable property inside New South Wales.

  3. Where the deceased person died domiciled outside New South Wales, the Supreme Court does not have jurisdiction in respect of movable property inside New South Wales.

The Plaintiff’s submissions

  1. Counsel for the Plaintiff submitted that the Defendant’s notice of motion should be dismissed on the grounds that there is property within New South Wales, which is capable of being designated as notional estate, thereby attracting the jurisdiction of the Supreme Court of New South Wales, and that it would, therefore, be inappropriate to summarily dismiss the proceedings.

  2. It was submitted that s 64 of the Succession Act does not apply to the Plaintiff’s application for a family provision order, as the Plaintiff “is not asking the Court to make orders affecting property outside New South Wales of a deceased person who died domiciled outside New South Wales”: Paragraph 25 of Plaintiff’s written Outline of Submissions dated 1 March 2022.

  3. Counsel for the Plaintiff relied on extracts from Hitchcock v Pratt at [20], Estate Grundy; La Valette v Chambers-Grundy (2018) 17 ASTLR 64; [2018] NSWSC 104 at [94(a)-(b)] (Lindsay J) and Xiang Bht Cao v Tong [2021] NSWSC 44 at [316], s 64 of the Succession Act “and the development of the common law” generally to support her submission that the Supreme Court of New South Wales has jurisdiction to make family provision orders with respect to moveable property within New South Wales of a deceased person who died domiciled outside New South Wales.

  4. Counsel submitted that the Plaintiff’s Summons is not an abuse of process as the “Supreme Court of New South Wales does have jurisdiction to make orders in this case; the proceedings are not frivolous or vexatious; and it is appropriate for the Court to allow the plaintiff’s case to be heard”: Paragraph 32 of the Plaintiff’s written Outline of Submissions dated 1 March 2022.

The application for summary dismissal

  1. The Defendants’ case for summary dismissal is based on Uniform Civil Procedure Rules, r 13.4, which provides:

If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

  1. The Defendants’ submissions, oral and written, did not identify the part, or parts, of UCPR r 13.4 upon which reliance is placed.

  2. There is no very precise notion of what is frivolous or vexatious or what will constitute an abuse of process. What amounts to an abuse of court process is also insusceptible of a formulation comprising closed categories: Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 at [32] (Gaudron J).

  3. In In re Rules of the Supreme Court 1971 (WA); ex parte Nikoloff [2019] WASC 263, Hill J wrote, at [21] (citing Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 at [29]-[33] (Vaughan J)):

“Proceedings will constitute an abuse of process if they are clearly doomed to fail or are plainly unsustainable.

In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably. For example, an action is frivolous if it is obviously (or plainly) unsustainable and an abuse of the process of the court. It may for the same reason be categorised as vexatious.

An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.

Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes.

A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment.” (citations omitted)

  1. There can be no dispute that proceedings may be summarily dismissed if they disclose no arguable cause of action, if they are clearly untenable and are doomed to fail, if they are an abuse of process or if they are frivolous and vexatious: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 128-129; [1964] HCA 69 (Barwick CJ); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

  2. In an appropriate case, an opposing party should be “saved from the vexation of the continuance of useless and futile proceedings”. However, great care should be exercised “to ensure that, under the guise of achieving expeditious finality, a plaintiff is not improperly deprived of his opportunity for the trial of his case”: General Steel Industries Inc v Commissioner for Railways (NSW) at 130.

  3. A claim that is outside the jurisdiction of the Court is misconceived, in the sense of being obviously untenable or unsustainable, and, therefore, could be regarded as an abuse of process or frivolous.

  4. The Defendants bear the onus of persuading the Court that the Plaintiff has no reasonable prospect of successfully prosecuting her application. In this case, they must establish that there are no issues of fact seriously in contention which could affect the judgment, and that her claim for a family provision order is so obviously untenable, or groundless, that there is "a high degree of certainty" that she will fail if her case is allowed to go to trial.

  5. In relation to a summary dismissal application, reference should be made to the judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83 at 92; [2017] NSWCA 19 at [30]:

“I would reject the first aspect of Mr Perera’s complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff’s case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’ and ‘be manifest that to allow [the pleadings] to stand would involve useless expense’. In part that variety stems from whether the application is made in the court’s inherent jurisdiction or under the rules (see Dixon J’s analysis in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91–92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for ‘exceptional caution’, as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.

  1. Recently, in Pethybridge v Gillard & Anor [2022] NSWSC 10, Slattery J, in dealing with an application for summary judgment pursuant to UCPR r 13.1, wrote, at [54]-[56]:

“The test applied to summary judgment applications by plaintiffs is the same as that applied to summary dismissal applications by defendants. That is: “the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion” ….

…

To make such a determination, the Court may consider questions of law relevant to the application … This is not for the purpose of making findings of fact, but to determine whether a triable issue is disclosed ...” (Omitting citations)

  1. The uniform course of authority shows that the Court must bear in mind the seriousness of the step of summarily dismissing proceedings. The test is not whether the Plaintiff would probably fail in her, or his, action against the defendants, but whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.

  2. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Ltd [1999] NSWSC 1273 at [37] (Wood CJ at CL).

  3. The Court should also remember that “common experience teaches that it is usually more efficient and just to consider the viability of the cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence”: Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 5 (Kirby P).

  4. There can be no doubt that the Court can resolve a question of law or an issue of complexity if it considers it appropriate to do so. Whilst it may do so, “the more complex and arguable is the legal point, and the more dependent it may seem to be upon debatable factual premises, the less likely is it that the peremptory relief sought by a party will be appropriate to the circumstances of the case, particularly where it would have the consequence of terminating proceedings altogether, or terminating them forever against one party”: NRMA Insurance Ltd v AW Edwards Pty Ltd (1995) 11 BCL 200 at 7 (Kirby P, with whom Powell JA agreed).

  5. In Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [25], the following passage from the joint judgment of French CJ and Gummow J should also be remembered:

“Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.”

  1. Furthermore, if there is a point of law that requires any serious discussion, it should be set down for argument and not be determined summarily: Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86.

  2. Yet, in Morgan v Union Shipping (NZ) Ltd [2001] NSWSC 325, Sperling J wrote, at [9]:

“Where a point of law is involved, summary judgment is generally not ordered if the point of law is arguable from the standpoint of the respondent. … The court may, however, decide a question of law on an application of this kind if it forms the view that it is appropriate to do so. … The court is not bound to decide complex questions of law on a motion of this kind where the competing positions are both arguable.” (Omitting citations)

  1. In Australian Competition and Consumer Commission v PRK Corporation Limited [2008] FCA 403, Sackville J also wrote at [28]:

“It is sometimes appropriate to decide a pure question of law on a strike out motion: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241. But the authorities do not suggest that a court is bound to do so (Morgan v Union Shipping (NZ) Ltd [2001] NSWSC 325, at [9], per Sperling J and authorities cited there).”

  1. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [23], Finkelstein J wrote:

“…On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done — see Rosser v Austral Wine & Spirit Company Pty Ltd [1980] VR 313, 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested.”

  1. In the same case, at [131], Gordon J wrote:

“[T]he existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible [sic] succeed”: General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.”

  1. In In the matter of Skypac Aviation Pty Ltd (in liquidation) [2019] NSWSC 291, Rees J wrote at [6]:

“The first and fifth defendants submitted that the fact that the Court will have to determine a contested question of law is no bar to summary dismissal of a claim where, as here, the material facts are agreed and no further material evidence could emerge that might affect how the question of law is decided. Reliance was placed on Gatward v Kleem (1955) 72 WN (NSW) 354 per Walsh J at 357-8:

The jurisdiction is one which must be exercised with great caution, and a defendant is not to be deprived by means of a summary procedure, of the opportunity of litigating his case in the ordinary way before the ordinary tribunal if there is any chance that he may be able to provide evidence, which, if accepted, will have the result that the plaintiffs claim will be defeated in whole or in part, or that the defendant will establish a right to some set-off against the plaintiff's claim or to recover some amount from the plaintiff; see Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at pp 91, 92. But if it appears quite clear that the defendant cannot succeed and that there is no substantial question to be tried, then the pleas may be struck out to avoid the expense and delay which would be involved in matters being tried in the ordinary way. If the circumstances are such that the judge is required to decide questions of law in order to ascertain whether there is any chance of the defendant succeeding, it does not necessarily follow that he should refuse the application, if he, in his discretion, thinks it proper to dispose of those questions of law upon such an application; cf. Goddard v Polar Cream Pty Ltd (1946) 47 SR (NSW) 154, at pp 156, 157.”

  1. Thus, where there is a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable, yet novel, it is not appropriate to determine the question of law summarily and give summary judgment.

  2. There is no question, in this case, that the Court's approach, relying upon the test articulated in General Steel Industries Inc v Commissioner for Railways (NSW) requires consideration in the light of the Civil Procedure Act: Shaw v State of New South Wales [2012] NSWCA 102 at [33]; [128]-[134] (Barrett JA).

  3. A claim for a family provision order is not immune from the application of UCPR r 13.4 that it be summarily dismissed: Estate Grundy; La Valette v Chambers-Grundy at [103] (Lindsay J); Brindley v Wade [2019] NSWSC 303 at [12]; Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968 at [75]. Whilst not encouraging such applications, there may be cases in which an abbreviated procedure, taken with the affidavit evidence, will sufficiently expose the facts and the legal issues so that the question whether relief in accordance with the rule relied upon is appropriate can be determined.

Determination

  1. I make clear that I do not provide any views of the merits of the Plaintiff’s substantive case.

  2. Remembering that the power to summarily dismiss proceedings is a discretionary one, I approach the application upon the basis that a very clear case is required before summary dismissal is granted and that the power to make such an order should be sparingly employed, with the test not being whether the Plaintiff would probably fail in her action against the Defendants, but whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. In determining the issue, I also remember the principles which underpin the Civil Procedure Act and the Uniform Civil Procedure Rules 2005 (NSW). Cost and delay, in modern litigation, being two prominent features of the legal landscape must also be considered.

  3. In my opinion, the Defendants’ application for summary dismissal ought to be refused. The question raised by the application, being the jurisdiction of the Supreme Court in family provision matters, is important. My research reveals that this is the first case that raises consideration of s 64 of the Succession Act since it was amended in July 2018.

  4. It is also necessary to remember that the Succession Act, relevantly, is an “Act to restate, with reforms, the law relating to wills in New South Wales; to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person; to make provision for the distribution of intestate estates; and for other purposes”: s 2. Furthermore, this type of legislation has been described as having been “enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded”: Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).

  5. In Barns v Barns, at [44], reference was made to Worladge v Doddridge (1957) 97 CLR 1 at 9; [1957] HCA 45 in which Williams and Fullagar JJ had referred to what Rich J had written in Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119; [1932] HCA 1, adding:

“The provision can be made out of any part of the testamentary estate so that the whole of the estate corpus or income is available for the purposes of the Act. The jurisdiction is conferred in very wide terms and no court or judge would be justified in attempting to define it otherwise than in accordance with the ordinary natural meaning of the words of the section.”

  1. Neither party referred to the Second Reading Speech delivered on Wednesday 14 February 2018, in the NSW Parliament, by the Attorney General, who stated that “Schedule 1.11 [4] legislates a finding at common law that family provision orders cannot be made in relation to property outside New South Wales that belonged to a person domiciled outside New South Wales at the time of death”.

  2. Nor was any reference made to the Explanatory Notes in Schedule 1 to the Justice Legislation Amendment Act 2018 (NSW), which provides in relation to s 64, that “Item [4] clarifies that a family provision order may be made in respect of property outside New South Wales only if the deceased person lived in New South Wales at the time of death”.

  3. (Counsel for the Plaintiff, however, did mention in relation to s 64 that domicile is referred to only in the context of a family provision order being made in respect of property situated outside New South Wales.)

  4. It is to be noted that s 64 in its amended form omits the words “in, or” outside, New South Wales, when, or at any time after, the order is made, and substitutes the words “whether or not” with the words “only if” the deceased person was, at the time of death, domiciled in New South Wales.

  5. In the circumstances, the meaning of the section in its amended form, and its statutory effect, are issues inherently unsuitable to be determined on a summary dismissal application without full and detailed argument. The decisions of the Court relied upon by counsel, naturally, only deal with s 64 of the Succession Act before its amendment.

  6. Even if according to common law choice of law rules applicable in New South Wales, succession to property depends upon whether that property is classified as movable or immovable, and succession to movable property is determined according to the law of the deceased’s domicile, whilst succession to immovable property is determined by the lex situs: Re Berchtold; Berchtold v Capron [1923] 1 Ch 192 at 199; Re Crook (1936) 36 SR (NSW) 186 at 192-193, there has been an inadequate articulation of, and reference to, the Succession Act as a whole, and whether there has been any alteration, or modification, of the common law position to which reference has been made expressly, or impliedly, by the Act.

  7. No submissions were made by reference to the text, context and purpose of the Succession Act. By way of example, neither party referred to the fact that s 64 is the only section in Chapter 3 that even mentions the domicile of the deceased. Other sections of the Act, which refer to the deceased’s domicile, appear in the context of the construction of a will (s 33) and the validity of a will executed in a foreign place (s 48(1)(b)). Otherwise, the Succession Act does not appear to identify the deceased’s domicile in New South Wales as a condition of jurisdiction to make a family provision order.

  8. By way of example, there may be an argument that, had the legislature intended that a family provision order could be made in respect of moveable property in New South Wales only if the deceased person, at the time of death, was domiciled in New South Wales, the amendment to s 64 might have been:

A family provision order may be made in respect of property situated in, or outside, New South Wales when, or at any time after, the order is made, only if the deceased person was, at the time of death, domiciled in New South Wales.

  1. It seems to me, therefore, that there is a serious legal question to be determined, and, accordingly, it should ordinarily be determined at a trial.

  2. It is also to be remembered that New South Wales is the only state in Australia that has the concept of notional estate in the legislation relating to family provision. How the common law is affected, if at all, by that concept, so far as it relates to property within New South Wales, should not be determined summarily.

  3. Finally, I am not satisfied that the evidence, particularly concerning the property, being the proceeds of the death benefit held by OnePath Life Insurance, which the Defendants concede may be able to be designated as notional estate “subject to the Supreme Court of New South Wales having the requisite jurisdiction”, is complete. For example, the Trust Deed, or other documents relating to the death benefit held by OnePath Life Insurance, or what, if any steps, the Trustee has taken to determine how the proceeds should be paid, has not been disclosed. That evidence is, or should be, available to the Defendants as the administrators of the deceased’s estate. They have not given any evidence or explained its absence.

  4. In my view, the interests of justice would best be served by allowing the Plaintiff’s claim to proceed to trial.

  5. The Court orders:

  1. The Defendants’ notice of motion filed 19 August 2021 seeking summary dismissal is dismissed.

  2. The costs of the notice of motion be the Plaintiff’s costs in the cause.

  3. The proceedings be stood over for directions in the Succession List on Friday, 1 April 2022.

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Decision last updated: 23 March 2022

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