Johnson v Staniforth
[2002] WASCA 23
•31 JANUARY 2002
JOHNSON -v- STANIFORTH & ORS [2002] WASCA 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 23 | |
| Case No: | FUL:9/2002 | 31 JANUARY 2002 | |
| Coram: | HASLUCK J | 31/01/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DONALD EDWIN JOHNSON (As Executor and sole beneficiary of the Will of MICHAEL VRANJICAN dated 18 December 1996) WINNIE KATIE STANIFORTH (As Executrix of the Will of MICHAEL VRANJICAN dated 23 October 1997) WINNIE KATIE STANIFORTH FIONA LISA STANIFORTH (As Beneficiaries of the Will of MICHAEL VRANJICAN dated 23 October 1997) WINNIE KATIE STANIFORTH (As Executrix and sole beneficiary of the Will of MICHAEL VRANJICAN dated 25 March 1998) |
Catchwords: | Procedure leave to appeal against interlocutory order Meaning of interlocutory order Leave to appeal granted |
Legislation: | Guardianship and Administration Act, s 77 Rules of the Supreme Court, O 63A Supreme Court Act 1935, s 58, s 60 |
Case References: | BHP Petroleum (Australia) Pty Ltd v Sagasco South East Inc [2001] WASCA 159 Cameron v Cameron (1968) 12 FLR 22 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 Little v State of Victoria [1998] 4 VR 596 Metcalf v Permanent Building Society (1993) 10 WAR 145 Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 267 Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Carnley v Hoff [1942] Ch 298 Northumberland v Attorney-General [1905] AC 406 Perpetual Trustees Company Ltd v Fairlie Cunninghame, the Estate of Samuel Douglas Machattie Service (1993) 32 NSWLR 377 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
BETWEEN : DONALD EDWIN JOHNSON (As Executor and sole beneficiary of the Will of MICHAEL VRANJICAN dated 18 December 1996)
- Appellant
AND
WINNIE KATIE STANIFORTH (As Executrix of the Will of MICHAEL VRANJICAN dated 23 October 1997)
First Respondent
WINNIE KATIE STANIFORTH
FIONA LISA STANIFORTH (As Beneficiaries of the Will of MICHAEL VRANJICAN dated 23 October 1997)
Second Respondents
WINNIE KATIE STANIFORTH (As Executrix and sole beneficiary of the Will of MICHAEL VRANJICAN dated 25 March 1998)
Third Respondent
(Page 2)
Catchwords:
Procedure - leave to appeal against interlocutory order - Meaning of interlocutory order - Leave to appeal granted
Legislation:
Guardianship and Administration Act, s 77
Rules of the Supreme Court, O 63A
Supreme Court Act 1935, s 58, s 60
Result:
Application for leave to appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr K E Yin
First Respondent : Mr D G Fleming
Second Respondents : Mr D G Fleming
Third Respondent : Mr D G Fleming
Solicitors:
Appellant : Frichot & Frichot
First Respondent : Halperin Fleming Meertens
Second Respondents : Halperin Fleming Meertens
Third Respondent : Halperin Fleming Meertens
(Page 3)
Case(s) referred to in judgment(s):
BHP Petroleum (Australia) Pty Ltd v Sagasco South East Inc [2001] WASCA 159
Cameron v Cameron (1968) 12 FLR 22
Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572
Little v State of Victoria [1998] 4 VR 596
Metcalf v Permanent Building Society (1993) 10 WAR 145
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 267
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Case(s) also cited:
Carnley v Hoff [1942] Ch 298
Northumberland v Attorney-General [1905] AC 406
Perpetual Trustees Company Ltd v Fairlie Cunninghame, the Estate of Samuel Douglas Machattie Service (1993) 32 NSWLR 377
(Page 4)
1 HASLUCK J: This is an application by the plaintiff for leave to appeal pursuant to O 63A of the Rules of the Supreme Court. The application arises out of the trial of a preliminary issue which was heard on 21 November 2001 with the ruling in respect of that issue being delivered on 10 December 2001.
2 The question to be resolved as a preliminary issue in these proceedings was whether the will of the deceased, the late Michael Vranjican, made on 25 March 1998, being one of three wills made by the deceased, was of no force and effect by reason of s 77 of the Guardianship and Administration Act. I pause to note that the will in question was the third of the three wills the subject of the proceedings.
3 The relevant provisions of the Act render an affected person incapable of making a disposition in respect of his estate. On 10 December 2001 I ruled that the term "disposition" did not apply to the making of a will. The material passage of the judgment for present purposes appears at par 33 and par 34 of the written reasons for judgment. The paragraphs in question read as follows:
"It follows that, in my view, the term "disposition" contained in section 77(1)(a) of the Guardianship and Administration Act does not apply to the making of a will. The consequence is that the third will of the deceased, being the will made on 25 March 1998 shortly after the making of the relevant administration order on 9 March 1998 cannot be regarded as unenforceable or as having no force and effect, simply because the consent of the Board to the making of such an order had not been obtained. This ruling in response to the preliminary issues leaves for consideration at the trial of the action a number of other issues, including the question of whether the deceased lacked testamentary capacity at the time of the making of the second and third wills."
4 Against this background the plaintiff (or prospective appellant) proceeds from the premise that the decision to be appealed should be regarded as an interlocutory order because it does not finally dispose of the rights of the parties. The prospective appellant by counsel therefore seeks leave to appeal pursuant to O 63A of the Rules concerning appeals from interlocutory orders and judgments of Judges and Masters.
5 To understand the procedural implications of the present situation it will be useful to look briefly at the key provisions. Section 58(1) of the
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- Supreme Court Act 1935 provides that subject to the Act and to the Rules of the Supreme Court the Full Court shall have jurisdiction to hear and determine appeals from a Judge whether sitting in Court or in Chambers. Section 60(1)(f) provides that no appeal shall lie without the leave of the Judge or of the Full Court from any interlocutory order or interlocutory judgment.
6 It follows that if the ruling in question before me be characterised as an interlocutory order, the plaintiff is obliged to obtain leave to appeal.
7 This brings me to O 63A r 2. This provision was introduced in 1996 with a view to expediting appeals. It provides that O 63A applies to an appeal to the Full Court from an interlocutory order or interlocutory judgment of a Judge, and it allows for an appeal in such a case to be heard by a Full Court constituted by two Judges rather than by three Judges.
8 I pause to note, however, that O 63A r 5(4) provides that the appeal shall be heard by a Full Court constituted by two Judges unless a Judge or the Full Court directs otherwise. Put shortly: leave to appeal is required if the ruling in question in the present case is characterised as interlocutory; an appeal from an interlocutory order will normally be dealt with by a Full Court constituted by two Judges but directions can be given in certain cases whereby such an appeal will be heard by three Judges.
9 In Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 a plaintiff had sought declarations from the court as to the status of certain mineral claims. The presiding Judge made an order striking out the statement of claim and dismissing the action with costs. When a question arose as to whether leave to appeal was needed by reason of s 60(1)(f) of the Supreme Court Act the Full Court held that if the only order had been to strike out the statement of claim, the action itself would have remained on foot; the rights of the parties would not have been finally disposed of, and the order would have been interlocutory, but the order had dismissed the action and was final.
10 In Little v State of Victoria [1998] 4 VR 596 it was held that an order dismissing a proceeding because no reasonable cause of action was disclosed was an order in an interlocutory application. The true test of finality was said to be whether the judgment or order finally disposes of the rights of the parties.
11 In Metcalf v Permanent Building Society (1993) 10 WAR 145 the Full Court held that a judgment on a preliminary issue is not final but merely interlocutory because it is not such as finally to determine the
(Page 6)
- rights of the parties in a principal rather than a subsidiary cause pending between them. Accordingly, I consider that an appeal against such a judgment, as in the present case, should be characterised as interlocutory and must be dealt with under O 63A.
12 Order 63A r 4(1) provides that as soon as practicable after an appeal is commenced, which includes an application for leave to appeal, it shall be referred to the judge who made the order or judgment under appeal for a directions hearing in chambers. It is pursuant to that provision that the present application for leave comes before me.
13 By O 63A r 4(2), at the directions hearing the judge may direct that an application for leave to appeal be heard together with the appeal, or grant or refuse leave, or direct that the appeal or any application for leave to appeal proceed as an appeal under O 63.
14 At a first glance this suggests that if there are any difficulties surrounding the application for leave to appeal then with a view to avoiding duplicity of argument directions can be made whereby the issue concerning leave to appeal is referred to the Full Court in conjunction with the appeal. One might conclude in the context of the present case that the question of whether a ruling upon a significant preliminary issue should be characterised as a final or interlocutory order should be deferred for the consideration of the Full Court pursuant to a direction that the question of leave to appeal be heard together with the appeal. That was the course I adopted in Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 267.
15 In the present case, however, having regard to the previously decided cases and especially the Permanent Building Society case, I am firmly of the view that the ruling sought to be appealed should be characterised as an interlocutory order with the result that leave to appeal is required. I therefore propose to deal with the question of whether leave should be granted.
16 As I have noted, O 63 r 5(4) allows for the possibility of an appeal against an interlocutory order being heard by three judges rather than by two judges. The decided cases suggest that a direction to that effect will be appropriate when a significant issue is involved on the decision of a preliminary issue. In that respect, Seaman: Civil Procedure at paragraph 63(a) at point 4.2 refers to the case of BHP Petroleum (Australia) Pty Ltd v Sagasco South East Inc [2001] WASCA 159.
(Page 7)
17 The plaintiff or prospective appellant in the present case has filed detailed written submissions. Counsel submits on behalf of the plaintiff that leave to appeal should be granted against the judgment or ruling upon the trial of the preliminary issue and that the draft notice of appeal which forms part of the materials before me should stand as the notice of appeal. It is quite apparent from the draft notice of appeal that the intention is to bring under consideration the central issue of what meaning should be attributed to the word "disposition" in the relevant and crucial statutory provision.
18 Counsel for the plaintiff submits that leave to appeal against an interlocutory order should be granted where the interlocutory order has the practical effect of finally determining the rights of the parties in respect of a substantive issue, which is arguably the situation in this matter; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572. Counsel submits further that the ruling in the present case involves a special point of importance in that the ruling is already being cited by the Guardianship and Administration Orders authority relating to the application or non-application of the Act in respect of the mental capacity to make a will.
19 There is affidavit evidence before me bearing upon this point. This shows the point to be taken on appeal should be regarded as a significant issue, counsel submits, and this outweighs the general rule that appeals from interlocutory orders are to be discouraged; Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56, 57 and 74.
20 The issue before the court was described at the trial of preliminary issue as one involving "a difficult point of statutory interpretation". I recognise that such a description continues to apply. Accordingly, counsel for the plaintiff submits that it is appropriate for a Full Court constituted by three Judges to be given an opportunity to consider the issue, being an issue of general importance to the community.
21 Counsel also referred to the strength of the plaintiff's case on appeal. He said that the meaning of the word "disposition" for the purposes of s 77 of the Guardianship and Administration Act should not be restricted to instruments or contracts that have the effect of immediately alienating property as there are many instances in which contracts in particular do not become dispositive until such time as a precondition is or preconditions are satisfied. He referred to Cameron v Cameron (1968) 12 FLR 22 wherein it was held that a transfer of the legal estate following
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- on from a series of steps after contracting amounted to a disposition of property.
22 Having regard to these submissions, I am satisfied that leave to appeal is sought in respect of a significant issue of statutory interpretation and that the decision in question is attended with sufficient doubt to justify the grant of leave. Accordingly I propose to grant leave to appeal in respect of the central issue and as to the question of costs which is also brought under notice in the draft notice of appeal.
23 For the same reasons I am also prepared to direct pursuant to O 63A(5)(4) that the appeal be heard by a Full Court constituted by three Judges so that a decisive ruling upon the central issue and the question of costs can be obtained. I will hear from the parties as to whether any further orders or directions are required.
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