Huntley-Travers v Wilkinson

[2018] NSWSC 1173

Supreme Court

New South Wales

Medium Neutral Citation:

Huntley-Travers v Wilkinson [2018] NSWSC 1173

Hearing dates:

30 July 2018

Decision date:

30 July 2018

Jurisdiction:

Equity

Before:

Leeming JA

Decision:

1. Dismiss the notice of motion dated 30 July 2018.

 

2. Order 1 is without prejudice to the parties’ rights to renew an application to vacate or adjourn the hearing when more is known as to the nature of the plaintiffs’ case in reply.

 3. Order the plaintiffs to pay the defendant’s costs of the notice of motion.

Catchwords:

PRACTICE – late application to vacate final hearing – failure on part of plaintiffs to receive defendant's main affidavit – whether fault on part of plaintiffs – evidence failed to identify nature of prejudice suffered by plaintiffs – application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57
Succession Act 2001 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Consequential orders (other than Costs)

Parties:

Cassandra Huntley-Travers (First Plaintiff/Applicant)
Michael Tooler (Second Plaintiff/Applicant)
Vanne-Maree Wilkinson (Defendant/Respondent)

Representation:

Counsel:

 

A Hill (Plaintiffs/Applicants)
S Chapple (Defendant/Respondent)

 

Solicitors:

  Bale Boshev Lawyers (Plaintiffs/Applicants)
Somerville Legal (Defendant/Respondent)

File Number(s):

2017/309463

Publication restriction:

Nil

Ex tempore Judgment

1. HIS HONOUR: By notice of motion supplied shortly before midday today the plaintiffs apply to vacate the final hearing of this application under the Succession Act 2001 (NSW) which as long ago as 25 May 2018 was listed for tomorrow and Wednesday.

2. The basis of the application is that the substantive affidavit of the defendant, Ms Vanne-Maree Wilkinson, who is the defendant, the administrator of the estate and the widow of the deceased, is one affirmed by her on 23 January 2018. The evidence before me is that that affidavit, together with a subsidiary affidavit of a lay witness, to which no submissions have been directed, was served by email at about 4.23pm on 24 January 2018, during the vacation. However, the plaintiffs’ solicitors have relatively recently conducted searches of emails addressed to that email address, and are unable to find a copy that was received. Certainly, although it will be necessary to deal with some of the procedural history of this litigation, I accept that at least in the last three months, the plaintiffs have been unaware of the substantive affidavit of the defendant.

3. The immediate procedural history is that by directions made on 2 July 2018, both parties were directed to supply written submissions and a court book to my chambers by 23 July 2018. Those directions were not complied with. Slightly belatedly, the defendant supplied written submissions on the evening of last Tuesday 24 July 2018. The evidence before me is that only when reading those submissions the following morning did it appear to the representatives of the plaintiffs that there was a substantive affidavit by the defendant which they had not received.

4. My understanding is that the obligation was on the plaintiff to supply a court book. If so, that obligation was not discharged, and the defendant supplied a court book last week. Even today, more than a week after the obligation to do so arose, the plaintiffs have not supplied written submissions in support of their claim. Mr Hill of counsel, who appears on this application, but is not briefed to appear at the hearing (and has as I understand it played absolutely no part in this litigation until earlier this afternoon) advises that he is instructed that written submissions by counsel briefed in the matter will be supplied by close of business today. I interpolate that counsel briefed in the matter is based in Newcastle; hence Mr Hill's appearance before me.

5. The application is opposed. Very fairly, the defendant accepts that (a) for one reason or another, the defendant's affidavit has not been responded to, (b) the affidavit is substantive and important, and (c) the plaintiffs, if not permitted to respond to it, will suffer prejudice. The defendant submits that the prejudice is not without fault on their part. In particular, he refers to a supplementary affidavit of Ms Wilkinson, which was received by the plaintiffs around 16 March 2018, which in para 7 refers in terms to:

“Paragraph 16(b), 16(c), 17, 29-33 and Annexure B of my affidavit sworn on 23 January 2018 and filed in these proceedings”.

6. There is no dispute that this supplementary March affidavit was received shortly after it was served by the plaintiffs. Accepting that the substantive affidavit of 23 January was not received, this affidavit would have been the first affidavit (other than the original formal affidavit of the administrator of the estate identifying assets and eligible persons) which the plaintiffs had received. Mr Hill, very properly, accepts that the reader of this supplementary affidavit – which is all of seven pages long – could not fail to appreciate that there was an earlier more substantial affidavit.

7. Secondly, at the first return date of this litigation, directions were made for the filing and service of affidavits by the defendant. That occurred on 10 November 2017. The substantive affidavits were filed in January 2018, during the vacation. The matter came before a judge sitting in the Family Provision List on 9 February 2018. The Short Minutes of Order which appear to be signed by counsel for the plaintiff (Ms Pringle) and Mr Chapple for the defendant, include consent directions for the plaintiffs to:

“File and serve any affidavits in reply to affidavits served prior to 9 February 2018 by 4.00pm on 2 March 2018”.

8. Further, there was a mediation in this matter, I am told, on 30 January 2018. Both the terms of the direction on 9 February 2018 and the fact of the mediation slightly more than a week earlier, tend to tell against an absence of knowledge of the fact of a substantive affidavit being served. I accept the defendant’s submission that the present belated appreciation that the plaintiffs needed to respond to Ms Wilkinson’s substantive affidavit is not without fault on the part of the plaintiffs.

9. I turn to the prejudice. The plaintiffs rely upon a short affidavit of Mr Phillip Brogan, who is the solicitor with carriage of the matter. The affidavit was read without objection. The only paragraphs which deal with prejudice are paras 5 and 6. Those paragraphs provide as follows:

“5. I have conferred with each of my clients in relation to the prospect of the trial continuing on 31 July 2018 and 1 August 2018. I am instructed that the plaintiffs do not feel that they can adequately respond to the affidavits. My clients feel as though their cases would be prejudiced if forced to continue with the trial.

6. The perceived prejudice to the plaintiffs is that:

a. The defendant’s affidavit is lengthy and traverses various issues that would appear substantial to the defendant’s case and conversely, prejudicial to the plaintiffs’ case unless adequately and comprehensively addressed;

b. The evidence cannot be adequately addressed prior to the commencement of the trial, or during the course thereof, by reason of including, but not limited to:

i. Cassandra in particular is geographically distant;

ii. Cassandra suffers from a complex range of health issues and the late consideration of the material adds to her levels of stress and anxiety. I refer to the material field on her behalf as to medical issues and say that obtaining her instructions is a relatively difficult and time intensive process;

iii. Michael proposes to rely upon two (2) other witnesses in his response to the evidence.

iv. Both Cassandra and Michael require the opportunity of producing and/or obtaining further documentary evidence and that shall require time.”

10. As was plain during exchanges in submissions, there is real difficulty in identifying with any precision what the prejudice claimed is and the extent to which it is remediable through consequential orders, based only upon what Mr Brogan has deposed to. It will be noticed that:

1. Para 5 is conspicuous by its failure to give any opinion evidence from the solicitor with carriage of the matter as to the nature of the prejudice, but rather is confined to conveying his clients’ feelings as to whether they can adequately respond to the affidavits;

2. the nature of the issues which are required to be addressed is not identified in para 6(a);

3. nor is the nature of the prejudice asserted in paragraph 6(a);

4. the four matters identified in para 6(b) as said to comprise evidence which cannot be adequately addressed prior to the commencement of the trial do not identify who the other two witnesses are or the nature of what it is they are to say or why it is impossible for reliance to be placed upon them. Nor is the nature of the further production or obtaining of documentary evidence in any way identified. Nor is there any indication as to the way in which the location and health issues which the first plaintiff suffers from impact upon the timing of a response to the belatedly discovered affidavit.

11. I am bound, in determining this application, to apply the overriding purpose in s 56(1) of the Civil Procedure Act 2005 (NSW), which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Plainly, the vacation which is sought by the plaintiffs will not enhance either the quickness or cheapness of the resolution of the litigation. The question therefore is how is the application to be resolved so as to facilitate the just resolution of the issues, and that very much turns upon an evaluation of the prejudice which would be suffered by the plaintiffs if their application is refused, and the prejudice that would be suffered by the defendants if the hearing proceeds in a way that seeks to accommodate that prejudice (perhaps, by permitting evidence in reply to be given orally, or, perhaps, permitting some bifurcation of the hearing). I am also bound to apply s 57, which obliges me to manage the litigation having regard to the just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings, and all other proceedings in the court.

12. The likely consequence of acceding to the plaintiffs’ application will be to deny two judge-days time to some other piece of litigation, in circumstances where the reason for the application is not faultless. Further, it is common ground at the Bar table that it is unlikely that another two days would be able to be made available to the plaintiffs in 2018, so that the effect of acceding to the application would be broadly to double the pre-hearing time pending resolution of the litigation between the parties.

13. There is one other significant aspect in the material supplied by the plaintiffs. Like so much else, it is something which is unsaid. At a directions hearing conducted by me last Friday, when the plaintiffs told the court for the first time that they had been, so it was said, unaware of the substantive defendant’s affidavit served in January, para 7 of Ms Wilkinson’s supplementary affidavit was brought to the attention of counsel (Ms Pringle) then appearing for the plaintiffs. I have recorded above Mr Hill's proper acceptance of what flows from that paragraph. Notwithstanding the prominence that was given to that paragraph in the directions hearing last Friday, Mr Brogan's affidavit is silent as to whether and if so when he read para 7 and, if he did, whether he drew the inevitable conclusion that there was a substantive affidavit absent from his file.

14. If there were serious and irremediable prejudice suffered by the plaintiffs, then I would be inclined to vacate the hearing. In light of what I have indicated as to the cause of this application, I would do so on the basis propounded by the defendant, namely, that the plaintiffs pay the costs of this application and costs of the hearing thrown away, on an indemnity basis. (Whether those costs were to be borne by the plaintiffs or by the legal practitioners appearing for them is a matter that need not detain me now.) However, the deficiencies in the evidence as to the prejudice which the plaintiffs claim lead me to accede to the defendant’s primary submission, which is that the hearing should proceed tomorrow.

15. I raised with the parties the possibility of an intermediate approach. That possibility was, given the absence of any precise articulation of the prejudice suffered by the plaintiffs and the nature of the testimonial or documentary evidence that they would wish to adduce in reply to the defendant’s principal affidavit, to at least commence the hearing tomorrow without prejudice to (a) the plaintiffs’ right to apply again to vacate or adjourn it and (b) the defendant’s right to so apply, if it became apparent that she was unable to deal with the newly adduced case of the plaintiffs. The defendant embraced it; the plaintiffs said nothing in opposition to it, including after an opportunity was extended to obtain instructions.

16. It may well be that acceding to that course results in the matter being part heard, although, I do not by any means regard that as an inevitable consequence. However if it be the case, then because, as it happens, I am sitting in the Equity Division, the certainty is that there will be a much greater possibility of obtaining earlier dates than would be available were the matter to return into the Family Provision List. I am also conscious that although the matter is set down for two days, it may well be that not all of those two days are required to complete the hearing of it. That is my present impression.

17. In those circumstances, I have concluded that adherence to the overriding purpose in s 56 of the Civil Procedure Act requires me to dismiss the notice of motion, but to do so on the basis indicated, that is, to leave open to both parties the right, when more than is presently known about the nature of the plaintiffs case is known, for an application to be renewed.

18. Accordingly, I make the following orders:

1. Dismiss the notice of motion dated 30 July 2018.

2. Order 1 is without prejudice to the parties' rights to renew an application to vacate or adjourn the hearing when more is known as to the nature of the plaintiffs' case in reply.

3. Order the plaintiffs to pay the defendant’s costs of the notice of motion.

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Decision last updated: 30 July 2018