Hull v Smith

[2012] NSWCA 183

Court of Appeal

New South Wales

Case Title:

Hull v Smith

Medium Neutral Citation:

[2012] NSWCA 183

Hearing Date(s):

18/06/2012

Decision Date:

18 June 2012

Jurisdiction:

Before:

Young AJA

Decision:

Motion for extension of time dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - Application to extend time for filing a Notice of Appeal - whether appeal has reasonable prospects of success - held no - no matter of principle

Legislation Cited:

Cases Cited:

Jackamarra v Krakouer [1998] HCA 207; 195 CLR 516
Tomko v Palasty (No 2) [2007] NSWCA 369

Texts Cited:

Category:

Procedural and other rulings

Parties:

Lance Hull (Applicant)
David Wayne Smith (First Respondent)
NSW Trustee & Guardian (Second Respondent)

Representation

- Counsel:

Counsel:
J Anderson (Applicant)
V A Hartstein (First Respondent)
B Townsend (Second Respondent)

- Solicitors:

Solicitors:
Farrell Lusher (Applicant)
Bartier Perry (First Respondent)
NSW Trustee & Guardian (Second Respondent)

File number(s):

2012/98360

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Hallen AsJ

- Date of Decision:

12 October 2011

- Citation:

NSW Trustee & Guardian v Hull & Anor [2011] NSWSC 1106

- Court File Number(s)

2011/52466

Publication Restriction:

JUDGMENT - EX TEMPORE

1. This is a motion by a person who was unsuccessful in the Equity Division in what might be called a Next of Kin Inquiry with respect to the late Warren Scott Smith. Mr Smith, whom I will call the deceased, was one of three children of a person whom I can call Carol. It would appear that Carol's three children each had different fathers. Warren Smith died intestate and the NSW Trustee and Guardian is the administrator of his estate, an estate which, at least before legal proceedings, appears to have been worth about $600,000.

2. Under the Probate and Administration Act 1898 (NSW) this could mean that the parent of Warren Smith would take the estate if he or she survived Warren Smith; otherwise his two half brothers would take a moiety each. One of those half brothers is a disabled person.

3. The matter came before Hallen AsJ. The present applicant, Mr Hull, alleged that he was the father and, as the father of Warren Smith and as Carol had predeceased Warren Smith he, Mr Hull, would take the whole of the estate. The learned Associate Judge considered the evidence that was before him. I will not deal with that evidence in detail but it included the fact that Mr Hull had denied paternity on a number of occasions close to the birth of Warren Smith, however Carol had asserted on a number of occasions that he was the father.

4. The learned primary judge said at paragraph 98 of his judgment that he accepted the evidence that the deceased's mother asserted that Mr Hull was the father of the deceased. He noted in paragraphs 99 and 100 that that assertion had been made in circumstances where there was no actual controversy about the matter of issue and that it was made at a time when the assertion was financially motiveless.

5. His Honour also considered the circumstances that had existed: One being that there were, it would seem, three possibilities of who the father was based on things that the mother had said and that some of the material which was before the court came from recollections of the two half brothers who had overheard things that the mother had said.

6. His Honour spent a considerable amount of time in his judgment discussing all these matters. He then referred to s140 of the Evidence Act 1995 which provides in paraphrase that the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, but in doing so the court must take into account the nature of the subject matter of the proceeding and the gravity of the matters alleged. He then noted that in an English case, Re A (A Minor) [1994] 2 FLR 463 (Eng), Lord Justice Waite had said that the issue of paternity is a serious one, more serious in the scale of gravity than, for example, proof of debt or minor negligence and the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue.

7. Hallen AsJ adopted that and I can see no problem with that because it represents what the law has always been. So his Honour said in paragraph 137(c):

   "Both paternity and maternity is a matter of status. In this case, the status of paternity conflicts with the factual reality of what occurred."

8. Mr J Anderson of counsel who appeared for the applicant put that his Honour erred in that he treated the matter as being a decision that had to be made not as to who was the biological father, but as on a question of status. I must confess, with respect, that I found it very difficult to read his Honour's judgment in that way. His Honour considered a number of the facts. He considered what the onus of proof was, he considered the factual matrix in which the mother's assertions were made, he recognised that it was a matter of status, as indeed it was, as to who the biological father was and he made his decision on the balance of probabilities. He held that the applicant had not made out his case.

9. I do not see how one can read the judgment as being one where his Honour misdirected himself in dealing with a matter as a matter of status rather than a matter of fact as to who was the biological father. This was the principal ground in the Notice of Appeal.

10. A subsidiary ground connected with it was that the judge failed to give any or any sufficient attention to the finding that both the mother of the deceased and the half brother of the deceased asserted that the appellant was the father of the deceased.

11. His Honour did consider that matter and the way in which he expressed himself in paragraphs 98 to 100 show that he gave it fair attention. The statement of the half brother was a very weak one in the circumstances in which the judge recognised and set out in his judgment. Accordingly, it would not seem to me that grounds 1 and 2 in the Notice of Appeal are particularly strong.

12. However, as Mr Anderson has pointed out, I have to be very careful when dealing with an application to extend the time for appealing to make sure that I do not put too stringent a test before myself because that would lead me into error. In Jackamarra v Krakouer [1998] HCA 207; 195 CLR 516 the High Court dealt with the standard that needs to be applied in this sort of case. The High Court's decision was taken up in this court in Tomko v Palasty (No 2) [2007] NSWCA 369, a decision in which Basten JA gave the leading judgment and Hodgson and Ipp JJA agreed, though the former added some statements of his own.

13. At paragraph 58 of that judgment Basten JA noted that there is a danger in placing too much emphasis on the prospects of success and that to do so invites the parties to treat this sort of application as a dress rehearsal for the full appeal. His Honour said:

    "In my view, it is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case: It was not necessary nor appropriate to demonstrate in any detail the prospects of success. For present purposes it is sufficient to say that a number of grounds are fairly arguable and one at least has reasonable prospects of success".

14. I respectfully follow that and ask myself has any of the grounds a reasonable prospect of success, remembering that this court does not substitute its own assessment of the facts for that of his Honour but the question is whether his Honour has erred in his approach. On this approach, I cannot see that there are any reasonable prospects of success.

15. His Honour examined the material, he noted the significance of the mother's assertions, but, in all the circumstances, he said that Mr Hull had failed to make out his assertion that he was the father. Accordingly, it does not seem to me that I should extend the time for filing the Notice of Appeal.

16. There was also, I should note, an argument that because the Notice of Intention to Appeal was filed within the time, but was not served for a further 7 days, that this is not a case where there is only a few days that the Notice of Appeal was out of time but, in fact, 11 weeks. I think Mr Anderson concedes that it was 11 weeks, but says that that was still a short time. However, in view of the major finding I have made it really is not a significant matter in this case as to how long the Notice of Appeal was out of time.

17. Accordingly the motion for extension of time fails and it should be dismissed with costs, but I think only one set of costs should be allowed between the respondents.

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