LAUE and LAUE (Deceased)

[2013] FCWA 87

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: LAUE and LAUE (Deceased) [2013] FCWA 87

CORAM: CRISFORD J

HEARD: 9 AUGUST 2013

DELIVERED : 29 AUGUST 2013

FILE NO/S: PTW 3387 of 2012

BETWEEN: ROSIE PINA LAUE

Applicant

AND

RAY WILBUR LAUE (Deceased)
First Respondent

AND

CAMDEN PTY LTD
Second Respondent

AND

ARM PTY LTD
Third Respondent

AND

RONALD BORIS LAUE
Amicus Curiae

Catchwords:

PRACTICE AND PROCEDURE - Application to be heard as Amicus Curiae - When appropriate

PRACTICE AND PROCEDURE - Order appointing a person as legal personal representative - Whether order null and void

Legislation:

Family Law Act 1975 (Cth) - s 38, s 79, s 79(8)
Family Law Act Rules 2004
Family Law Amendment Rules 2009 (No. 2)
Family Law Rules 1984 - o 15 r 8
Family Law Rules 2004 - r 6.15
High Court Rules 2004 - r 21.06

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr W Carr

First Respondent : Mr A Davies

Second Respondent : Mr S Paonni

Third Respondent : Mr S Paonni

Amicus Curiae : Dr A Dickey QC

Solicitors:

Applicant: Carr & Co

First Respondent : O'Sullivan Davies

Second Respondent : Vincent Partners

Third Respondent : Vincent Partners

Amicus Curiae : Dwyer Durack

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

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Fisher v Fisher (No. 2) [1986] FLC 91-767

In the Marriage of Bailey (1987) FLC 91-803

In the marriage of Strelys; Lukaitis (Executor) [1988] FLC 91-961

Levy v Victoria (1997) 189 CLR 579

Midhurst (deceased) & Midhurst [2008] FamCA 393

Re O’Toole; Taylor & O’Toole [1992] FLC 92-285

S (deceased) & S [2002] FamCA 1281 (unreported)

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1On 5 January 2013 the husband in these property proceedings, which had been started by the wife on 18 June 2012, passed away.

2By an Application in a Case filed 21 January 2013 the wife sought an order that “the legal personal representative of the deceased husband be substituted as a party to the proceedings”. The Executor of the deceased husband’s Will is [Daniel Fellon].

3In responding to the wife’s application, Mr Fellon, on 8 February 2013, deposed that he was a CPA accountant and the principal of an accounting firm. He said he had been the accountant for the deceased husband, the wife in these proceedings, the second and third respondents and also for the mother of the deceased husband for several years.

4He further deposed:

11.As [the wife] has made adverse claims and statements against me and due to my previous history of involvement with this family, I do not want to be appointed the Legal Personal Representative of [Ray] in relation to the Family Court proceedings with [Rosie].

12.I support the appointment of [SHAUN BRENTON] as the Legal Personal Representative of [Ray] in the Family Court proceedings.

13.I know that [Shaun] is a legal practitioner, was a good friend of [Ray]’s and is able to act in the role.

5On 5 March 2013 orders were made appointing Shaun Brenton as the legal personal representative in these proceedings.

6The parties’ son, [Ronald Boris Laue], lodged an application in the Probate Registry Office of the Supreme Court of Western Australia seeking Letters of Administration of the late husband's Will, and a limited grant until the Letters of Administration were granted. Ms [Paula Laue], the husband's mother, lodged a caveat at the Supreme Court on 26 July 2013.

7Dr Dickey of Queen’s Counsel sought to be heard as Amicus Curiae at a court event listed on 30 July 2013. He sought to make submissions on behalf of Ronald Boris Laue. A Notice of Contention was received by the Court on 30 July 2013. It became apparent at the hearing there were two issues for the Court to decide:

•Whether Dr Dickey was entitled to be heard at the hearing as Amicus Curiae; and

•Whether paragraph one of the orders made on 5 March 2013 which appointed Shaun Brenton as the deceased husband’s legal personal representative was made contrary to law.

Amicus Curiae

8An Amicus Curiae or a Friend of the Court is heard by the court on the basis that that person is willing to offer the court a submission on law or on a relevant fact which will assist the court in a way in which it would not otherwise have been assisted. (Levy v Victoria (1997) 189 CLR 579)

9The hearing of an Amicus Curiae is entirely in the court’s discretion and it is not possible to identify all the situations in which a court will be assisted by such submissions. It is common ground that an Amicus Curiae will be heard when the court believes it will be significantly assisted by any submissions that person has to make.

10Dr Dickey has drawn the Court’s attention to an aspect of this case which has otherwise been completely overlooked. This issue is whether the Court’s appointment of Mr Brenton as the legal personal representative of the husband is null and void.

11Whether the Court agrees or disagrees with his submission, given the importance of the issue raised, I have little hesitation in granting Dr Dickey a right to be heard as Amicus Curiae in relation to the issue of the validity of order one of 5 March 2013.

Orders one of 5 March 2013

12The orders made appointing Mr Brenton were originally sought by the wife on the death of her husband. The proposal to appoint Mr Brenton originated in the application filed by O’Sullivan Davies, who had previously represented the husband.

13The orders were made with little objection from other parties. Mr Carr, counsel for the wife, raised a concern that Mr Brenton would be charging for his services and as such, the costs of the husband's estate would be doubled. However, he noted that there was no one else “prepared to put their hand up” and that the making of orders in terms of the response filed by O’Sullivan Davies would have the effect of dealing with the issue.

14Without more, the orders of 5 March 2013 were made.

15Section 79(8)(a) of the Family Law Act 1975 (Cth) (“the Act”) provides that upon the death of a spouse who is a party to property proceedings, “the proceedings may be continued… against… the legal personal representative of the deceased.”

16The Family Law Rules 2004 (“the Rules”) deal with the progress of a case after the death of a party.

6.15 Death of party

(1)This rule applies to a property case or an application for the enforcement of a financial obligation.

(2)If a party dies, the other party or the legal personal representative must ask the court for procedural orders in relation to the future conduct of the case.

(3)The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party.

Note 1: The court may make other procedural orders, including that a person has permission to intervene in the case (see rules 1.12 and 6.05).

Note 2: For the effect of the death of a party in certain cases, see subsections 79 (1A), 79 (8), 79A (1C)… and 105 (3) of the Act.

17The explanatory guide to the Rules offers an explanation of what the term legal personal representative means:

legal personal representative, for a deceased party – the executor or administrator of the party’s estate.

Position of Ronald Boris Laue

18Dr Dickey says there is no power for a court exercising jurisdiction under the Act to “appoint” anyone as a deceased spouse’s legal personal representative. He says this is a matter entirely for the civil courts. He says the only relevant power that this Court has is to substitute a deceased spouse’s legal personal representative for the deceased. In this regard, he relies upon the legislation set out above.

19As Mr Brenton is not, and has never been, the Executor or Administrator of the deceased husband’s estate, he is not qualified to be substituted for the deceased husband. He says that order one of the orders of 5 March 2013 have been made contrary to law. It is null and void and has no effect. Until an order for substitution is made the property proceedings are, in effect, suspended.

Position of O’Sullivan Davies

20Mr Davies of Counsel says the definition of legal personal representative in the explanatory guide to the Rules is offered as an explanation only. He says a strict adherence to that definition would produce a range of situations which are completely unworkable.

21He says that the High Court Rules 2004, in particular Rule 21.06, apply to this situation. In order to apply these Rules, he refers to s 38 of the Act which provides:

(1)Subject to this Act, the practice and procedure of the Court shall be in accordance with the regulations and the standard Rules of Court.

(2)In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

…

Rule 21.06 provides:

Death of a party

21.06.1Where the cause of action survives against the estate of a deceased person a proceeding may be commenced against the estate of the deceased.

21.06.2Until a grant of representation of the estate of a deceased person is made:

(a) a proceeding may be commenced and continued against the estate of the deceased naming the estate as defendant; or

(b) the Court or a Justice may, by order, appoint a person to represent the estate of the deceased for the purposes of the proceeding.

…

22In any event, he says that the modern approach to interpretation of statutes endorsed by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 is applicable. He argues that context is all important and must be considered in its wider sense to avoid mischief or ambiguity and to arrive at the aim of the statute.

Discussion

23The order made on 5 March 2013 purported to appoint Mr Brenton as the deceased husband’s legal personal representative.

24Proceedings for property settlement under s 79 of the Act are based upon a claim which is purely personal. This being the case, it abates on the death of one of the parties to the proceedings. Until a legal personal representative is appointed and substituted for the deceased party, the wording of s 79(8) lends itself to the position that the proceedings are suspended and no further legally effective steps can be taken to either continue or discontinue them.

25Section 79(8) of the Act operates to reverse the result which would otherwise have followed from the death of a party. The section provides a method for the continuation of the determination of property proceedings.

26Relevantly, for present purposes, s 79(8) provides:

Where, before property settlement proceedings are completed, a party to the marriage dies:

(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

…

27Counsel for both parties referred me to a number of authorities in support of their various arguments. Whilst the wording of s 79(8) of the Act has remained constant, “the applicable Rules of Court” to which the section refers have changed over time.

28The section anticipates the proceedings continuing by or against the legal personal representative of the deceased party. It does not anticipate the Court making that appointment. As noted by Dr Dickey, this is not the same as an appointment by a Court of a representative like a case guardian.

29The Rules of the Court facilitate the substitution of the legal personal representative as a party to the proceedings.

30In Midhurst (deceased) & Midhurst [2008] FamCA 393, a first instance decision of the Family Court of Australia in Adelaide, her Honour Justice Dawe considered a difference in wording between s 79(8) of the Act and Rule 6.15 of the Family Law Rules 2004 with respect to the substitution of a deceased party.

31In that case the daughter of the deceased wife in property proceedings sought to be substituted for her mother. She argued that the Rules provide for a “person” to be substituted for a deceased party.

32Rule 6.15(3) of the Family Law Rules 2004 at the time her Honour made her decision in June 2008 was, relevantly, as follows:

Death of party

…

(3)The court may order that a person be substituted for the deceased person as a party. (emphasis added).

33Her Honour referred to an earlier first instance decision of S (deceased) & S [2002] FamCA 1281 (unreported) relating to the issue of a legal personal representative.

34Her Honour noted that the decision made in that case was on the basis of the law as it then stood, including the provisions of Order 15 Rule 8 of the Family Law Rules 1984:

Proceedings after death of a person

(1) A court may make any orders it thinks proper with respect to proceedings

if:

(a) a person dies; and

(b) under the Act, the proceedings may be instituted or continued by or against the person’s estate or legal personal representative.

(2) The orders may include:

(a) an order that the legal personal representative be substituted for the deceased person as a party; (my underlining) (original emphasis ) and

(b) an order that notice of the proceedings be given to a person in the manner directed by the court; and

(c) an order granting leave to a person to intervene in the proceedings on the terms the court thinks fit; and

(d) an order for the amendment of an application or other document in the proceedings, in the manner and subject to the conditions that the court thinks fit.

35Her Honour noted:

39.The current Rules, however, clearly refer to “a person” rather than “the legal personal representative”.

40.Although the Rules now refer to “a person” rather than “the legal personal representative” the Rules cannot amend or alter the Act. The Rules need to be interpreted in a manner which is consistent with the provisions of Section 79(8).

41.The Rules must always be read subject to the specific provisions of the Family Law Act 1975. Specifically Section 79(8)(a) only permits the proceedings to be continued by “the legal personal representative of the deceased party”.

36I agree with Justice Dawe in her interpretation of the legislation. However, there is room for a contrary view.

37The Family Law Amendment Rules 2009 (No.2) which commenced on 1 January 2010 amended the Family Law Rules 2004. These are the current Rules and relevantly, 6.15(3) now provides:

Death of party

…

(3)The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party. (emphasis added).

38The Explanatory Statement to the Amendment Rules gives detail of the particular amendment as follows:

[1] Subrule 6.15(3)

To ensure consistency with s79(8) and s79A(1C) of the Act, the rule is amended so that the legal personal representative of the deceased person can be substituted for the deceased person as a party.

39Any inconsistency or doubt there may have been between the Act and the Rules about the identity of who may be substituted for a deceased person has been made clearer.

40Mr Davies invites the Court to rely upon s 38(2) of the Act and use Rule 21.06.02 of the High Court Rules to overcome any gap he says remains in the Family Law Rules 2004. This gap results from the need to appoint someone in the deceased’s stead to preserve the deceased’s position at least until the issue of the legal personal representative is resolved.

41He argues that there would be a range of situations where the Rules would be unworkable if someone other than the appointed legal personal representative could not take part in the proceedings. This was considered at first instance by Nygh J in In the Marriage of Bailey (1987) FLC 91-803 and the position, despite some possible unworkability, is clear. There may be other solutions, but I am not persuaded they are found in this Court.

42In any event, Dr Dickey argues that s 38(2) of the Act applies only to the Family Court of Australia. The definition of “Court” in the Act at s 20 means “the Family Court of Australia”. There is no equivalent provision in the Family Court Act 1997 (WA). Neither party referred me to any authorities in respect of this issue.

43However, in CCH Australian Family Law and Practice commentary there is a helpful summary as follows:

[52-090] Practice and procedure in the exercise of Federal jurisdiction

Last reviewed: 06 August 2012

In the exercise of its Federal jurisdiction, the Family Court of Western Australia is governed by the provisions of the Family Law Act and the rules and regulations made under this Act; see sec 42(1), 123 (and note also in this connection sec 35 of the Family Court Act 1997 (WA)).

It should be observed that the provisions of sec 38 of the Family Law Act (“Practice and procedure”) do not apply to the Family Court of Western Australia as the expression “the Court” in that section is defined for the purposes of that Part of the Act, Pt IV, as meaning the Family Court of Australia only; see sec 20. It is accordingly submitted with great respect [AFD] that Ferrier J was in error in Dixon and Dixon (1977) FLC 90-318 in seeking assistance directly from the High Court Rules (semble following the direction in sec 38(2) of the Family Law Act) upon discovering a lacuna in the former Family Law Regulations.

44On the face of it the legislation supports Dr Dickey’s argument. Whilst there may be a contrary decision by a first instance judge of this Court, it is unnecessary to canvass the correctness or otherwise of that decision in the context of these proceedings.

45The High Court Rules were not considered by the Family Court in Midhurst [supra]. Instead, the Family Law Act Rules 2004 were amended.

46It is common ground that by his Will the husband appointed his accountant, Daniel Fellon, as his legal personal representative. Mr Fellon did not want to involve himself in the Family Court proceedings, given he was likely to be called as a witness in his own right and the wife had made certain allegations about his honesty and credibility. Steps have been taken in the Supreme Court of Western Australia, at the very least, by the deceased’s son, to obtain a grant of probate. Other parties are involved, including the deceased’s mother. This Court has not been appraised of the exact nature of the proceedings and whether such proceedings will have any impact on the appointment of a legal personal representative.

47In this case there is a lawfully appointed legal personal representative. The fact of the appointment was from the will of the deceased husband. It appears that the executor of the estate has accepted the fact of the appointment, but has, according to Dr Dickey, shown an unwillingness to act in that position as the legal personal representative in the Family Court. The estate has no legal personality save through the legal personal representative.

Conclusion

48The line of authority referred to by Dr Dickey (Fisher v Fisher (No. 2) [1986] FLC 91-767 (High Court), In the marriage of Strelys; Lukaitis (Executor) [1988] FLC 91-961 (Full Court), Re O’Toole; Taylor & O’Toole [1992] FLC 92-285, (Hannon J)) all stress the importance of the legal personal representative being the person to maintain any proceedings already instituted in the Court.

49There is currently a legal personal representative who does not wish to involve himself, in that capacity, in the proceedings. No one is currently seeking he be substituted for the deceased husband. Until the appropriate person is so substituted then, in my view, in so far as the proceedings in this Court involve the deceased husband, they must abate.

50Taken from the above, the order made at paragraph one on 5 March 2013 is null and void.

Postscript

51Since the completion of this judgment an Application in a Case has been filed by O’Sullivan Davies “on behalf of” Daniel Fellon on 22 August 2013.

I certify that the preceding [51] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate