Hartley v Hartley

Case [2022] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION:

Hartley v Hartley [2022] QCA 96

PARTIES:

SHANE MICHAEL HARTLEY AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED)
(applicant/appellant)
v
CRAIG ANDREW HARTLEY
(respondent)

FILE NO/S:

Appeal No 776 of 2022
DC No 27 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:


District Court at Cairns – [2021] QDC 323 (Morzone QC DCJ)

DELIVERED ON:

27 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2022; further written submissions received 24 May 2022

JUDGES:

Morrison and Bond JJA and Boddice J

ORDERS:

1.    The further hearing of the present application is adjourned to a date to be fixed, costs reserved.

2.    As soon as is practicable, the parties must take all reasonable steps to obtain from the primary judge, his order finally disposing of the matters in issue on the application before him.

3.    The applicant before this Court must, within 7 days after the order is made by the primary judge, either:

(a)     notify the respondent before this Court that it does not intend to appeal; or

(b)     file and serve his notice of appeal from the order made by the primary judge.

4.    In the event that the applicant before this Court takes the course referred to in 3(a):

(a)     the parties must within a further 7 days file in this Court their submissions as to the orders which should be made in relation to the present application, including as to costs, such submissions being limited to 4 pages; and

(b)     the application will be determined on the papers.

5.    In the event that the applicant before this Court takes the course referred to in 3(b):

(a)     The appeal record for that appeal must comprise:

(i)     The appeal record in the present application before the Court;

(ii)     The written submissions received in respect of the present application;

(iii)    The transcript of the argument which has already occurred on the present application;

(iv)    Such supplementary volumes as will remedy the inadequacies in the appeal record in the present application and which will be relevant to the issues raised by the notice of appeal and the orders sought by it.

(b)     The present application and the appeal will be listed for hearing before a Court comprised of Morrison JA, Bond JA and Boddice J on a date to be fixed.

6.    Liberty to apply.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – GENERALLY – where the deceased bequeathed her estate to three of her four sons – where the deceased made no provision for the respondent before this Court – where the respondent sought orders pursuant to s 41 of the Succession Act 1981 (Qld) for adequate provision to be made out of the deceased’s estate for proper maintenance and support – where the primary judge published reasons explaining his decision for concluding that he would make an order that further provision be made to the respondent to the…

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Hartley v Hartley [2022] QCA 96
Case
[2022] QCA 96
Decision Date

CaseChat Overview and Summary

In the case of Hartley v Hartley, the appellant sought to appeal against an order made by the primary judge in the Queensland Supreme Court, which was intended to provide adequate provision for the respondent under section 41 of the Succession Act 1981 (Qld). The deceased had left her estate to three of her four sons, making no provision for the respondent, who sought to have further provision made from the estate. The primary judge determined that an order should be made, but before it could be finalised, the appellant sought an extension of time to appeal the decision. During the hearing of this application and the appeal, it was discovered that the primary judge had not actually made the order and the court was required to decide the appropriate course of action.

The central legal issue before the court was determining the appropriate procedural steps to take following the discovery that the primary judge had not, in fact, made the order in question, despite indicating that he would. Additionally, the court needed to decide how to proceed with the appeal and application, including whether to require the appellant to file a notice of appeal within a specified timeframe, and how to structure the appeal record.

The court concluded that the most effective way to proceed was to adjourn the further hearing of the application and require the parties to obtain the primary judge's final order. The court also stipulated that the appellant must notify the respondent within seven days of the primary judge's order if they did not intend to appeal or file a notice of appeal. Depending on the appellant's decision, different procedural steps would follow, including the preparation of submissions on the application and the composition of the appeal record. The court reserved costs and granted liberty to apply.

The court's orders included adjourning the further hearing, requiring the parties to obtain the primary judge's final order, and setting out detailed steps for the appellant to either notify the respondent of their decision not to appeal or to file a notice of appeal. If the appellant chose not to appeal, the parties were required to submit their views on the application, limited to four pages. If the appellant decided to appeal, the appeal record was to include specific documents and the appeal was to be listed for hearing before a particular court.

Orders

Orders of the court

1. The further hearing of the present application is adjourned to a date to be fixed, costs reserved.

2. As soon as is practicable, the parties must take all reasonable steps to obtain from the primary judge, his order finally disposing of the matters in issue on the application before him.

3. The applicant before this Court must, within 7 days after the order is made by the primary judge, either:

(a) notify the respondent before this Court that it does not intend to appeal; or

(b) file and serve his notice of appeal from the order made by the primary judge.

4. In the event that the applicant before this Court takes the course referred to in 3(a):

(a) the parties must within a further 7 days file in this Court their submissions as to the orders which should be made in relation to the present application, including as to costs, such submissions being limited to 4 pages; and

(b) the application will be determined on the papers.

5. In the event that the applicant before this Court takes the course referred to in 3(b):

(a) The appeal record for that appeal must comprise:

(i) The appeal record in the present application before the Court;

(ii) The written submissions received in respect of the present application;

(iii) The transcript of the argument which has already occurred on the present application;

(iv) Such supplementary volumes as will remedy the inadequacies in the appeal record in the present application and which will be relevant to the issues raised by the notice of appeal and the orders sought by it.

(b) The present application and the appeal will be listed for hearing before a Court comprised of Morrison JA, Bond JA and Boddice J on a date to be fixed.

6. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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