Haines v Salkeld
[2022] ACTSC 176
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Haines v Salkeld |
Citation: | [2022] ACTSC 176 |
Hearing Date: | 20 May 2022 |
DecisionDate: | 20 May 2022 |
Before: | McCallum CJ |
Decision: | 1) Dismiss the application in proceedings to vacate the hearing date. 2) Grant the parties leave to approach McWilliam AsJ for any oral application in relation to short service of subpoenas. 3) Confirm the hearing date of 23 May 2022. 4) Reserve costs of today’s proceedings. |
Catchwords: | PROCEDURE — MISCELLANEOUS PROCEDURAL MATTERS — Application to vacate hearing date — Multiple affidavits filed late — Whether defendant taken by surprise — Where material served will not expand the length of the hearing time |
Legislation Cited: | Family Provision Act 1969 (ACT) |
Parties: | Murray Haines (Plaintiff) Jennifer Salkeld (First Defendant) Public Trustee and Guardian for the Australian Capital Territory (Second Defendant) |
Representation: | Counsel R Bird (Plaintiff) G Blank (First Defendant) |
| Solicitors Rachel Bird & Co (Plaintiff) Artisan Legal (First Defendant) | |
File Number(s): | SC 27 of 2022 |
McCALLUM CJ:
These are proceedings under the Family Provision Act 1969 (ACT) brought by the husband of the deceased, who currently has the care of their two children aged nine and seven.
The proceedings were before the Court on 18 March 2022, when the matter was listed for a hearing with an estimate of one day before McWilliam AsJ on 26 May 2022. On that occasion, there was no appearance for the first defendant, the executor of the will of the deceased. The matter was listed for directions at 9.30am on 25 March 2022 and the first defendant was informed of that fact.
On the return date of 25 March 2022 there was, again, no appearance for the first defendant. The registrar made an order that the plaintiff file and serve any affidavits in reply to an affidavit the solicitor had then received by the executor by 29 April 2022. Five affidavits were served ostensibly in accordance with that direction, although I note that each was served or filed late, on 3 May 2022.
The first defendant, the executor, by application filed 16 May 2022, seeks an order that the hearing date be vacated and in the alternative that the plaintiff not be entitled to rely on the affidavits served after 25 March 2022. The application is supported by an affidavit sworn by the executor, the gist of which is that the number of affidavits has taken her by surprise and that she does not consider it will be possible to prepare for the hearing in time and further, that the estimate of only one day will now not be sufficient to cross-examine the plaintiff and the four new witnesses. I have considered the contents of the five affidavits and have concluded that the material that has been served ought not to expand the length of the hearing time.
By that, I do not necessarily mean that all five witnesses could be cross examined within the presently scheduled day to the length and breadth of the issues deposed to in their affidavits but rather that, having regard to the size of the estate in dispute, the parties ought work towards some compromise or resolution of issues such that the date presently allocated will be sufficient hearing time. Having regard to the lateness of the application and the size of the estate and my assessment of the affidavits, I am not persuaded that it is necessary to vacate the hearing date for the reason put forward.
I note, however, that the alternative order sought is that the plaintiff not be entitled to rely on any affidavit served after the date allowed by the registrar. That and the question of the admissibility of the material served should be an issue for the Associate Justice at the hearing of the matter and I indicate that I am not, by this judgment, rejecting the contention that any part of the late served material should not be relied on.
I make the following orders:
(1) Dismiss the application in proceedings to vacate the hearing date.
(2) Grant the parties leave to approach McWilliam AsJ for any oral application in relation to short service of subpoenas.
(3) Confirm the hearing date of 23 May 2022.
(4) Reserve costs of today’s proceedings.
| I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 15 July 2022 |
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