Hyde v Palfrey - [2017] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HYDE -v- PALFREY [2017] WASC 65

CORAM: MASTER SANDERSON

HEARD: 7 MARCH 2017

DELIVERED : 7 MARCH 2017

PUBLISHED : 14 MARCH 2017

FILE NO/S: CIV 3071 of 2016

MATTER :The Will of Christopher Gordon Palfrey late of 24 Matthew Way, Thornlie in the State of Western Australia, deceased

BETWEEN: TAMMY NICOLE HYDE
Plaintiff
AND
SHAUN CHRISTOPHER PALFREY as Executor of the Will of Christopher Gordon Palfrey
First defendant
SHAUN CHRISTOPHER PALFREY
Second defendant
TRACEY LEE-ANNE HIGGIE
Third defendant

Catchwords:

Family provision - Application for extension of time to bring proceedings - Application opposed on basis of disentitling conduct - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Macdonald
First defendant              :     Mr A P Hershowitz
Second defendant          :     Mr A P Hershowitz
Third defendant             :     Mr A P Hershowitz

Solicitors:

Plaintiff:     Macdonald Rudder
First defendant              :     Tait & Co
Second defendant          :     Tait & Co
Third defendant             :     Tait & Co

Case(s) referred to in judgment(s):

Ancell v Dawes [2016] WASC 402
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109

MASTER SANDERSON: This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). At the conclusion of the hearing I indicated I would grant leave and extend the time and that I would produce written reasons for my decision. These are those reasons.
There was no dispute between the parties as to the relevant principles. They were set out by the Full Court in Clayton v Aust (1993) 9 WAR 364 and can be summarised as follows:
(a)the discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper;
(b)the onus is on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving those who are protected by it of its benefits;
(c)the time limit in the Act is a substantive provision and not a mere procedural time limit;
(d)it is material when considering the application to consider how promptly and in what circumstances the plaintiff has brought an application for an extension of time (the length and reason for the delay);
(e)it is relevant to consider whether there have been any negotiations with the defendant during the six month time limit;
(f)it is relevant to consider whether or not the estate has been distributed before the claim was made or notified;
(g)it is relevant to consider whether a refusal to extend time would leave the plaintiff without redress against anybody;
(h)it is relevant to consider whether the plaintiff has an arguable case on the merits but no detailed examination of the plaintiff's claim is warranted.
In Ancell v Dawes [2016] WASC 402 I considered these general principles and the difficulty of giving content to a number of them. I concluded that the real question is whether the interests of justice require time to be extended. That is the approach I adopted in this case and none of the parties suggested that represented an error of principle.
There were two real issues between the parties on this application. The first was the length of the delay and the reasons for the delay. The deceased died on 21 October 2014. Probate of his will was granted on 4 March 2015. The time for bringing the application expired on 4 September 2015. The application for leave was lodged on 30 November 2016. That means the length of the delay was almost one year and three months. The defendants made the point that the delay was not inconsiderable and required explanation.
The plaintiff relied on two affidavits. The first sworn 30 November 2016 and the second sworn 6 February 2017. The plaintiff explains the reasons for the delay in par 82 through to par 88 of her affidavit. By way of background, the plaintiff was estranged from her deceased father and from the rest of her family represented by the second and third defendants. She did visit the deceased shortly before his death but he did not mention anything to her about his estate and she had no idea whether he had a will let alone what was in the will. In about December 2014, or January 2015, the plaintiff did attempt to obtain a copy of her father's will from the Supreme Court. Given that probate of the will was not granted until March 2015 it is possible a search did not disclose even that an application had been made for probate. Either way it can be accepted the plaintiff did not actually obtain a copy of the will until relatively recently.
It does appear however that the plaintiff was aware of the possibility of challenging her father's will. She says when she spoke to the Supreme Court she was advised there was a prospect of seeking to vary her father's will. Appearing as attachment GEC 1 to an affidavit of Gillyee Evelyn Carey sworn 25 January 2017 is a copy of a Facebook post. Ms Carey is the former wife of the deceased. This post appears to have been circulated to a number of people including the defendants. It can best be described as an expletive filled rant. Relevantly the post reads as follows:
I am just letting you know that I will be contesting my fathers will and I will be getting what's rightfully mine and I will donate the ....... lot to charity.
It would seem then by December of 2014 the plaintiff was at least aware of the possibility of seeking greater provision from her father's estate but she did not have a copy of the will and she was clearly not aware precisely of what her rights might be. She had not consulted lawyers. When she did consult lawyers they moved quickly to bring this application.
The plaintiff's explanation for the delay is not wholly satisfactory. By December of 2014 she appeared to be aware at least of the likelihood of a will being in existence. She was also aware it was possible to seek further provision from the estate if she took the view provision made for her was inadequate. She could have consulted lawyers at that stage and offers no real reason for not doing so.
On balance, the length of the delay and the failure to adequately explain the delay were factors which countered against the grant of an extension of time.
The second matter in contest related to the merits of the plaintiff's claim. It is worth noting again that Clayton v Aust was an appeal against a decision of the master refusing an extension of time within which to bring a claim. The learned master had determined the plaintiff's case was 'weak'. Malcolm CJ pointed out the master had used the wrong test. The question to be asked was whether the case was arguable. It was not a matter of assessing the strength of the case. The test applied is not dissimilar to that in a summary judgment application. There must be a serious question to be tried or the defendant must have an arguable case. Once that point is reached there is no reason to examine the strength or otherwise of the defendants position.
There is no doubt since the decision of Justice Mitchell in Craig v Craig [2015] WASC 109 parties defending an application for an extension of time to bring proceedings have focused more carefully on the merits of the plaintiff's claim. But, it is important to remember just what was decided in Craig v Craig. His Honour assumed a state of affairs most favourable to the plaintiff. He then determined the plaintiff did not have an arguable case. There was no question of assessing the strength or otherwise of the plaintiff's case - it was not arguable. Craig v Craig is entirely consistent with what was said by the Full Court in Clayton v Aust and does not in some way lower the bar or mean that a more detailed examination of the merits of a potential action is warranted.
This case went one stage further. The evidence of the plaintiff was to the effect that she had very few assets and limited income. Without going into detail she acknowledged she had for many years a drug problem. She had consistently borrowed money from her parents which she had never repaid. As is commonly the case, the family had splintered and eventually the deceased had cut off all contact with the plaintiff. In his will he had explained why he was not providing for the plaintiff. He had confirmed his position in separate correspondence. Essentially, the deceased saw the plaintiff's conduct as deplorable and he saw no reason to leave any part of his estate to her.
In the course of his submissions, counsel for the defendants conceded the plaintiff had an arguable case. That is to say given the plaintiff's difficult circumstances and her station in life it was arguable that the will of the deceased should have made further provision for her. That was a concession which was properly made.
Counsel then went on to argue that even though the plaintiff's case was arguable, her claim would inevitably fail because of her disentitling conduct. In making this submission counsel relied on s 6(3) of the Act which is in the following terms:
The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
In Craig v Craig, Justice Mitchell was able to assume a state of facts most favourable to the potential plaintiff. What counsel was submitting here was that I should make findings of fact based upon the evidence which would disentitle the plaintiff in circumstances where she otherwise had an arguable case. The only way that could be done was to distil out those parts of the evidence of disentitling conduct about which there was not contest. But, the plaintiff in this application did not have an opportunity to put in detail her side of the story. That is an altogether different position from a finding she had no arguable case and leave being refused on that basis.
The concession having been made that she did have an arguable case it seemed to me proper to grant the plaintiff leave to issue proceedings. True it is this is a small estate and there is a real prospect of most of the estate being consumed in legal fees. But as the law stands at the moment, there is no warrant in treating small estates differently from large estates. The size of the estate may well be a factor to be taken into account in the exercise of discretion. But when, as here, the plaintiff has an arguable case the fact the estate is modest could not lead to an extension of time not being granted.
For these reasons I extended time for the plaintiff to bring proceedings. Subject to hearing from the parties, the costs of this application should be costs in the cause of any proceedings which are issued.