Jeavons v Chapman
[2008] SASC 249
•19 September 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JEAVONS v CHAPMAN
[2008] SASC 249
Judgment of The Honourable Justice Gray
19 September 2008
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - OTHER MATTERS
Application for non-party intervention in civil proceedings pursuant to Rule 89, Supreme Court Civil Rules 2006 – plaintiffs granted protection order over defendant and defendant’s estate and appointed of estate pursuant to sections 7 and 10 Aged and Infirm Persons’ Property Act 1940 (SA) – plaintiffs sought advice, directions and authorisations from Court in relation to management of estate pursuant to section 13(2) and 16 Aged and Infirm Persons’ Property Act – two beneficiaries under defendant’s last known executed will sought permission to intervene in proceedings – whether beneficiaries had an appropriate interest in the civil proceedings so as to justify their intervention as non-parties.
Held: application allowed – plaintiffs’ application for advice, directions and authorisation may materially affect beneficiaries interests under defendant’s will – beneficiaries have a direct interest in related testamentary causes proceedings – intervention of beneficiaries will not significantly increase the length of hearing or inappropriately add to the costs of the proceedings.
JEAVONS v CHAPMAN
[2008] SASC 249Civil
GRAY J.
This is an application for non-party intervention, pursuant to Rule 89 of the Supreme Court Civil Rules 2006 (SA).
Background
On 18 February 2008, the plaintiffs, Juliet Marie Seymour Jeavons and Steven David Jeavons, by summons instituted the within proceedings (“the civil proceedings”). The civil proceedings sought, inter alia, a protection order in relation to the defendant, Torrie Stoddart Chapman, and her estate pursuant to section 7 of the Aged and Infirm Persons’ Property Act 1940 (SA),[1] and the appointment of the plaintiffs as managers of the protected estate, pursuant to section 10 of the Aged and Infirm Persons’ Property Act.[2] The summons was issued pursuant to section 8(1)(e) of the Aged and Infirm Persons’ Property Act,[3] on the basis that Mr and Mrs Jeavons were persons who would adduce proof of circumstances, which in the opinion of the Court, would make it proper that they should make the application.
[1] Section 7 of the Aged and Infirm Persons’ Property Act 1940 (SA) relevantly provides as follows:
(1)Where it is made to appear to the satisfaction of the court that any person is, by reason of age, disease, illness, or physical or mental infirmity—
(a) unable, wholly or partially, to manage his affairs; or
(b) subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or of any part thereof; or
(c) otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon him that his property should be protected as provided by this Act,
the court may make a protection order in respect of the estate or part of the estate of that person.
…
[2] Section 10 of Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
(1)If the court thinks fit to make a protection order, the court shall, in and by the protection order, appoint the spouse, domestic partner or near relation by blood or marriage of the protected person, or some other person, or any body corporate incorporated in this State by or pursuant to any law of this State, either alone or with any other person or persons, or the Public Trustee alone, to be the manager to take possession of and to control and manage all or such part or parts of the estate of the protected person as the court may direct.
…
[3] Section 8(1)(e) of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
(1)Except in the case of an application made under subsection (1) of section 8A of this Act, every application for a protection order shall be made by originating summons, and may be made—
…
(e) by any other person who adduces proof of circumstances which in the opinion of the court make it proper that such other person should make the application.
On 27 March 2008, a Master of this Court made the protection order in relation to Mrs Chapman and her estate and appointed the plaintiffs as managers of the protected estate. The Master was satisfied that Mrs Chapman was, by reason of age, disease, illness, or physical or mental infirmity, unable, wholly or partially to manage her affairs.[4]
[4] See Aged and Infirm Persons’ Property Act 1940 (SA), section 7(1)(a).
On 11 June 2008, the plaintiffs, by summons, instituted related proceedings in the Testamentary Causes Jurisdiction of this Court, seeking permission to apply for the making of a statutory will on behalf of Mrs Chapman, and the Court’s approval and authorisation of the statutory will, pursuant to the Wills Act1936 (SA). Section 7 of the Wills Act provides as follows:
(1)The Court may, on application by any person made with the permission of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2)An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that—
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
(4)In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i) the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv)any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
(5) An order may be made under this section in relation to a minor.
(6) The Court is not bound by rules of evidence in proceedings under this section.
(7)The following persons are entitled to appear and be heard at proceedings under this section:
(a) the person in relation to whom the order is proposed to be made;
(b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person;
(c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;
(d) the person's administrator, if one has been appointed under the Guardianship and Administration Act 1993;
(e) the person's guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993;
(f) the person's manager, if one has been appointed under the Aged and Infirm Persons' Property Act 1940;
(g) the person's attorney, if one has been appointed under an enduring power of attorney;
(h) any other person who has, in the opinion of the Court, a proper interest in the matter.
(8)In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.
(9)A will or instrument altering or revoking a will made pursuant to an order under this section must be executed as follows:
(a) it must be signed by the Registrar; and
(b) it must be sealed with the seal of the Court.
(10)The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under section 13 of the Administration and Probate Act 1919.
(11)The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity.
(12) In this section—
testamentary capacity means the capacity to make a will1.
Note—
1 The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
By an amended interlocutory application filed in the civil proceedings on 8 July 2008, the plaintiffs sought advice, directions and authorisations from this Court in relation to the management of the protected estate, pursuant to section 13(2)[5] and 16[6] of the Aged and Infirm Persons’ Property Act (“the application for advice, directions and authorisations”). The broad effect of the interlocutory application is the seeking of guidance on the following questions with respect to the management of the protected estate:
-whether the plaintiffs should execute a lease over certain parcels of farming land;
-whether the plaintiffs in their capacity as managers should prosecute the testamentary causes proceedings to make a statutory will for Mrs Chapman;
-whether the plaintiffs should proceed to realise funds from the protected estate for the purposes of its management and, in particular, whether the Court should approve an existing mortgage over two residential properties); and
-whether the plaintiffs should be paid remuneration as managers of the protected estate, pursuant to section 31 of the Aged and Infirm Persons’ Property Act.
[5] Section 13(2) of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
The manager shall have such other powers and duties in respect of the protected estate as the court in and by the protection order, or from time to time, defines or directs, and the court shall have jurisdiction to confer any such powers upon the manager to be exercised generally in respect of the estate or any part thereof, or upon any special occasion, or in respect of any particular subject matter.
[6] Section 16 of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
The court may direct the sale, mortgage, lease, or other disposition of the whole or any part of the protected estate by the manager; and may confer upon the manager any powers in respect of or in relation to the protected estate which it may deem necessary or expedient for the realisation, investment, or better management thereof, or for the benefit or advancement in life of the children of the protected person; and, in particular, may confer any powers which the court may under any law or practice relating to trustees or to wards of court confer upon trustees or itself exercise.
On 8 July 2008 the National Trust of South Australia sought permission to intervene in the civil proceedings, pursuant to Rule 89 of the Supreme Court Civil Rules. The National Trust is a beneficiary under Mrs Chapman’s last known executed will, dated 5 April 1991. The Stephenson affidavit sets out the basis for the National Trust’s asserted interest in the plaintiff’s civil proceedings.
On 10 July 2008 I heard argument on National Trust’s intervention application. At that hearing, an oral application to intervene was made by Ms Ellemor, the niece of the deceased, and the principal residuary legatee under the last known executed will of Mrs Chapman. Ms Ellemor did not make any substantive submissions on the application, and effectively adopted the submissions of National Trust.
Both applications to intervene were opposed by the plaintiffs. The plaintiffs did not however oppose Mrs Chapman’s court-appointed guardian ad litem or the Public Trustee being heard.
On 10 July 2008, I made an order granting the National Trust and Ms Ellemor permission to intervene in the civil proceedings. I now publish my reasons for granting permission to intervene.
Legal Principles
The principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy.[7] The power of the Supreme Court to order intervention in its civil jurisdiction is of relatively recent origin.[8] The history of this power was canvassed in Hocking v Southern Greyhound Racing.[9] Intervention in the Admiralty, Probate and the (old) Matrimonial Causes Jurisdiction is of a much older origin.[10]
[7] The Queen v Ludeke; Ex Parte Customs Officers’ Association of Australia (1985) 155 CLR 513 at 527.
[8] Burnside City Council v Attorney-General (1994) 63 SASR 65 at 66 (Debelle J). See also Eastern Districts Azzuri Sports Club Inc v South Australian Soccer Federation Inc (1989) 142 LSJS 121 at 123 where it was noted that the Court’s power to intervene first came into operation on 1 January 1987 with the adoption of Rule 33 of the Supreme Court Rules 1987 (SA).
[9] Hocking v Southern Greyhound Racing (1993) 61 SASR 213 at 215-216 (King CJ) at 219-220 (Debelle J).
[10] Burnside City Council v Attorney-General (1994) 63 SASR 65 at 66 (Debelle J); Hocking v Southern Greyhound Racing (1993) 61 SASR 213 at 215-216 (King CJ) at 219-220 (Debelle J); Trop Nom v Liquor Licensing Commissioner (1987) 46 SASR 255 at 266 (Legoe J).
Corporate Affairs Commission v Bradley (1974) 24 FLR 44 at 48-49 (Hutley JA).
As earlier observed, the application to intervene in the plaintiffs’ civil proceeding is made pursuant to Rule 89 of the Supreme Court Civil Rules. That Rule provides:
(1)The Court may, on application by a person who wants to intervene in an action, permit intervention on conditions determined by the Court.
(2)An application for permission to intervene must be supported by an affidavit stating –
(a) the nature of the applicant’s interest in the action (which need not be a legal or equitable interest); and
(b) the applicant’s object in seeking permission for intervention; and
(c) the extent of the proposed intervention.
(3)A copy of the application and the supporting affidavit must be served on all parties to the action.
(4)The Court may permit intervention on conditions it considers appropriate.
(5)The Court may, on application or on its own initiative, vary or revoke an order allowing non-party intervention under this rule.
In contrast to Rule 33.01 of the Supreme Court Rules 1987 (SA),[11] the immediate predecessor to Rule 89, no criteria are laid down as to when an order for intervention may be appropriate. The decision whether to make an order permitting intervention by a non-party is therefore a matter of discretion, to be determined in all of the circumstances of the case. [12] Ordinarily, however, the following four matters are relevant: whether the intervention is apt to assist the Court in the instant case; whether it is in the parties’ interest to allow the intervention; whether the intervention will occupy time unnecessarily; and whether allowing intervention will add inappropriately to the costs of the proceeding.[13]
[11] Rule 33.01 provided:
Any person:
(a)claiming an interest in the subject matter of proceedings; or
(b)whose claim or defence raises a question of law or fact, in common with the subject proceedings or the decision of which might affect the proceedings; or
(c)claiming that his participation in the proceedings will provide the Court with information relevant to the decision of the case or the choice of a remedy that will not be presented by an existing party, may by application to the Court in the proceedings seek:
(i) permission to intervene; and
(ii) directions.
[12] O’Meara v FWV Stanke Holdings Pty Ltd (2007) 250 LSJS 195 at [7].
[13] National Bank of Australia v Hokit (1996) 39 NSWLR 377 at 381 (Mahoney P with whom Waddell AJA agreed). Although the issue in this case concerned the intervention of an amicus curiae these principles are applicable generally.
In considering whether to make an order permitting intervention by a non-party, the Court is required to determine whether there is a proper basis for the non-party interest.[14] Rule 89 specifically provides that the relevant “interest” need not be an interest at common law or in equity, but may be some other unprescribed interest.[15] In the event that a non-party has been able to satisfy the Court that it has an interest in the action (including the subject matter of the action) then the issue of standing does not arise. The Court must also consider the extent to which a non-party may be permitted to intervene.
[14] Eastern Districts Azzuri Sports Club Inc v South Australian Soccer Federation Inc (1989) 142 LSJS 121 at 124. Note this decision concerned the application of Rule 33.01 of the Supreme Court Rules 1987 (SA), which is the immediate predecessor to Rule 89 of the Supreme Court Civil Rules 2006 (SA).
[15] Supreme Court Civil Rules 2006 (SA), Rule 89(2)(a).
The general principles governing non-party intervention were discussed by Brennan CJ in Levy v The State of Victoria.[16] This authority demonstrates that intervention may be appropriate in three main instances:
-where a non-party interest would be affected by a decision in the proceeding;[17]
-where a non-party interest is likely to be affected by a decision in the proceeding; [18] and
-where parties to the proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination.[19]
The third instance was articulated in a slightly different way by Legoe J in Trop Nom v Liquor Licensing Commissioner:[20]
[I]t would appear that the non-party intervention may only be allowed where the intervener can provide arguments or facts which will contribute to the courts reaching an informed decision, and where the significance of these arguments or facts is sufficient to outweigh any expense and/or delay which may be caused to the parties by such intervention …
[16] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 600-604.
[17] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 601.
[18] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 602; 603. See also Eastern Districts Azzuri Sports Club Inc v South Australian Soccer Federation Inc (1989) 142 LSJS 121 at 124.
[19] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 603.
[20] Trop Nom v Liquor Licensing Commissioner (1987) 46 SASR 255 at 266.
There is a dearth of authority which is directly applicable to the circumstances of this case. The decision in The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia,[21] is of some relevance.
[21] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia [2006] WASC 191.
This decision involved proceedings which were instituted to approve a scheme for the variation of a charitable trust pursuant to sections 7, 10(2) and 15 of the Charitable Trusts Act 1962 (WA). The trust was established by the will of the testatrix who died in 1949. Significant assets under the trust included the Catholic Agricultural College situated on land at Bindoon in Western Australia and substantial trust moneys. Under the terms of the will, the trust moneys were intended for the advancement in life of boys who had completed their training at the College and who wished to establish themselves as farmers on the land. The plaintiffs sought to vary the trust so that trust moneys would be available to provide financial assistance to students of limited means attending or wishing to attend the College and to provide financial assistance to secondary students of limited means in the field of agriculture. An application to intervene in the proceedings was made by 11 former residents of the College, all of whom were clearly identifiable as members of the class the testatrix intended to benefit. The applicants objected to the variation on the ground that it was not cy-prés to the original trust. The applicants submitted that the trust moneys should be applied to provide charitable assistance to the ex-residents of the College, their spouses, families and dependants.
In deciding whether to permit the applicants to intervene, Templeman J considered that it was necessary to form a view about the outcome of the substantive proceedings.[22] His Honour formed the tentative view that it would not be proper to approve the proposed variation as it did not have a close resemblance to the old trust and did not discharge the duty to those proposed to be benefited by the trust.[23] In reaching this conclusion, his Honour found that the evidence suggested that the trust moneys were intended to benefit male residents of the College who would subsequently become farmers. The trust moneys would then provide these “fledgling farmers with the means to support themselves and their families on the land”.[24] Templeman J then concluded that the applicants had a “sufficient interest” in the proceedings to justify their intervention.[25] Further, it was appropriate to permit the applicants to intervene so that they may contribute to the formulation of a revised or different scheme which would better carry into effect the original intentions of the testatrix.[26]
[22] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia [2006] WASC 191 at [29].
[23] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia [2006] WASC 191 at [24]; [29].
[24] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia [2006] WASC 191 at [24].
[25] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia [2006] WASC 191 at [49].
[26] The Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General of Western Australia [2006] WASC 191 at [29].
Evidential Basis for Making a Non-Party Intervention Order
The National Trust identifies its interest in the substantive proceedings as follows:
-the National Trust is a party to the testamentary causes proceedings and orders made in the civil proceedings have the potential to affect the National Trust’s interest in the subject-matter of the testamentary causes proceedings;[27]
-the National Trust is a beneficiary under the last known executed will of Mrs Chapman dated 5 April 1991, and is bequeathed an absolute interest in respect of real property known as “Kil Lel” at Crafers;[28]
-the Managers in the civil proceedings seek retrospective authorisation of a mortgage which would have the effect of encumbering “Kil Lel” and potentially affecting the National Trust’s beneficial interest in “Kil Lel”.[29]
[27] Affidavit of Ian Malcolm Stephenson sworn 8 July 2008 at [3]; [7].
[28] Affidavit of Ian Malcolm Stephenson sworn 8 July 2008 at [6].
[29] Affidavit of Ian Malcolm Stephenson sworn 8 July 2008 at [8]-[10].
Ms Ellemor is in a similar position to the National Trust, also being a beneficiary under Mrs Chapman’s last known executed will, and a party to the testamentary causes proceedings.
In my view, the reach of the plaintiffs’ civil proceeding for advice, directions and authorisations, if granted, may affect the interests of the National Trust and Ms Ellemor as beneficiaries of Mrs Chapman’s 1991 Will.[30] The evidence suggests that the 1991 Will may be Mrs Chapman’s last Will. Mrs Chapman’s property, both real and personal, is substantial, and the maintaining of the real property, and the proper care of the personal property, is likely to incur substantial expense. As a result, the way in which these expenses are to be met may materially affect the interests of the National Trust and Ms Ellemor. If the managers are authorised in their capacity as managers to continue the testamentary causes proceedings, and they are indemnified as to their costs and any other parties’ costs that they may be liable for out of the estate, it is self-evident that the interests of the National Trust and Ms Ellemor may also be materially affected.
[30] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 602; 603. See also Eastern Districts Azzuri Sports Club Inc v South Australian Soccer Federation Inc (1989) 142 LSJS 121 at 124.
The testamentary causes proceedings seek orders which will directly affect the distribution of the estate of Mrs Chapman on her death. As beneficiaries under what may be Mrs Chapman’s last Will, the National Trust and Ms Ellemor have a direct interest in whether an order authorising the managers to continue such proceedings should be made.[31]
[31] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 601.
At this stage it is unclear what position, if any, the guardian of Mrs Chapman intends to take in respect of the plaintiffs’ application. Even if the guardian were to take a clear position against the application, there is no party to the within proceedings who has a common interest with the National Trust and Ms Ellemor. Accordingly it is not clear that the position of the National Trust and Ms Ellemor will be protected by any other party putting forward submissions, evidence or facts which would assist the court in reaching a correct determination.[32]
[32] Levy v State of Victoria & Ors (1997) 189 CLR 579 at 603.
The effect of the National Trust’s and Ms Ellemor’s involvement in the civil proceedings would not significantly increase the length of any hearing on the subject-matter and would not inappropriately add to the costs of the proceeding.[33]
[33] Trop Nom v Liquor Licensing Commissioner (1987) 46 SASR 255 at 266; National Bank of Australia v Hokit (1996) 39 NSWLR 377 at 381 (Mahoney P with whom Waddell AJA agreed).
Conclusion
In all of these circumstances, I consider that the National Trust and Ms Ellemor have an appropriate interest in the subject-matter of the civil proceedings, so as to justify their intervention as non-parties. In my view, the intervention of the National Trust and Ms Ellemor should not be limited or restricted.
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