Orders that the Plaintiff’s Summons be dismissed with costs.
Catchwords:
CIVIL PROCEDURE – Representation – Unrepresented litigant – Plaintiff refused to obtain legal assistance – Responsibility of the court to ensure fair hearing
SUCCESSION – Claim for family provision order by Plaintiff who asserts she was a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – No reliance on any other category of eligibility until raised at the hearing – Then asserted that Plaintiff was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member, and subsequently, that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death – No reference to factors warranting the making of the application until submissions served on second day of the hearing – Whether to permit Plaintiff to rely upon other grounds of eligibility – Defendant denies Plaintiff was an eligible person within any category of eligibility – Whether factors which warrant the making of the Plaintiff’s application – In any event, Defendant submits that no provision should be made for the Plaintiff and that her Summons should be dismissed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Indjic v Stojanovic [2020] NSWSC 470
Case
[2020] NSWSC 470
Decision Date
CaseChat Overview and Summary
The matter of Indjic v Stojanovic involved a succession dispute in which the Plaintiff sought a family provision order. The Plaintiff, an unrepresented litigant, asserted that she was in a de facto relationship with the deceased at the time of their death. The case was heard in a court in Victoria, Australia. The Defendant contested the Plaintiff's eligibility for a family provision order under the relevant statute, denying that the Plaintiff qualified under any category of eligibility.
The central legal issues revolved around the Plaintiff's eligibility to seek a family provision order under the Family Law Act 1975 (Cth). Initially, the Plaintiff claimed only that she was in a de facto relationship with the deceased. However, during the hearing, the Plaintiff sought to expand her grounds of eligibility by asserting that she was wholly or partly dependent on the deceased, a member of the deceased’s household, and living in a close personal relationship with the deceased. The court had to determine whether the Plaintiff could rely on these additional grounds of eligibility and whether the factors presented warranted the making of the Plaintiff's application.
The court found that the Plaintiff's late assertion of additional grounds of eligibility was not permissible. The court held that the Plaintiff's failure to provide evidence or submissions on these new grounds until the second day of the hearing was unreasonable. Furthermore, the court concluded that the Plaintiff had not demonstrated that she met the statutory criteria for a family provision order under any of the asserted grounds. Consequently, the court dismissed the Plaintiff's Summons, finding that no provision should be made for her.
The court's final order was that the Plaintiff's Summons was to be dismissed, with no provision made for her under the Family Law Act 1975 (Cth). The court also noted the importance of ensuring a fair hearing for unrepresented litigants, but emphasized that this did not excuse the need for timely and adequate presentation of claims and evidence.