Lee v Lee - [2015] WASC 461

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEE -v- LEE [2015] WASC 461

CORAM: MASTER SANDERSON

HEARD: 2 OCTOBER 2015

DELIVERED : 3 DECEMBER 2015

FILE NO/S: CIV 2620 of 2010

MATTER :The Trustees Act 1962 (WA) and the Inheritance (Family and Dependents Provision) Act 1972 (WA)
The Estate of Barry Nelson Watkins, late of 49 Yulbah Loop, Baldivis in the State of Western Australia, deceased Probate No 1542/10

BETWEEN: TANIA JANE LEE
Plaintiff
AND
TANIA JANE LEE as Joint Administrator of the Estate of BARRY NELSON WATKINS (Dec)
First Defendant
BELINDA JANE WATKINS as Joint Administrator of the Estate of BARRY NELSON WATKINS (Dec)
Second Defendant
SHAUN WATKINS
Third Defendant
REBECCA KATE WATKINS
Fourth Defendant

Catchwords:

Practice and procedure - Application to extend time to comply with springing order - Turns on own facts

Legislation:

Nil

Result:

Time extended

Category: B

Representation:

Counsel:

Plaintiff:     Mr G J Pynt
First Defendant              :     Mr G J Pynt
Second Defendant         :     Mr A J Prentice
Third Defendant            :     Mr A J Prentice
Fourth Defendant           :     Mr A J Prentice

Solicitors:

Plaintiff:     Galic & Co
First Defendant              :     Galic & Co
Second Defendant         :     Mossensons
Third Defendant            :     Mossensons
Fourth Defendant           :     Mossensons

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

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88

MASTER SANDERSON: By amended chamber summons filed 1 October 2015 the plaintiff sought to vary certain orders including one order that was made over two years ago. To understand the nature of the application it is necessary to set out the background to this action in some detail.
The plaintiff was the partner of Barry Nelson Watkins (the deceased) who died intestate on 16 October 2009. The Supreme Court granted Letters of Administration to the plaintiff and to the second defendant. The second defendant was the daughter of the deceased from a previous marriage. At the time of the death of the deceased he and the plaintiff were living in a house owned by the deceased. They had been living together from 2001. The house is now part of the deceased's estate. The plaintiff is still resident in the property.
By originating summons dated 12 October 2010 the plaintiff sought an order that further provision be made out the estate pursuant to the (then) Inheritance (Family and Dependents Provision) Act 1972 (WA). I will have something to say as to the merits of the plaintiff's claim later in these reasons.
The second, third and fourth defendants are children from the deceased's previous marriage. They oppose the application. Mediation has taken place on four occasions - 4 July 2012, 5 November 2012, 17 November 2014 and 17 December 2014. There was no resolution of the claim as a consequence of these mediations and it now appears unlikely the claim will be settled.
On 6 May 2013 Registrar Whitby ordered the plaintiff to provide the defendants with a report or the substance of evidence of any expert evidence to be given at trial on her behalf. The following month the plaintiff filed and served the substance of an expert report by Dr Roger Patterson. Dr Patterson is a psychiatrist. He diagnosed the plaintiff with certain mental health issues which called into question her cognitive capacity. As a consequence of this report on 10 June 2013 Registrar Whitby ordered the plaintiff to 'file and serve any application for appointment of a next friend by 8 July 2013'.
In response to the expert evidence the second, third and fourth defendants applied by chamber summons for an order declaring the plaintiff was incapable of managing her affairs. They sought to have the proceedings stayed until a next friend was appointed. On 26 September 2013 I made that order. Three weeks later Registrar Whitby ordered the plaintiff to file and serve on or before 11 November 2013 'an application for the appointment of a Next Friend to the Plaintiff, and any affidavit in support thereof'. There was no compliance with that order. On 9 December 2013 Registrar Whitby made the following order:
Unless the Plaintiff files and serves an application for either the appointment of a next friend by 31 January 2014, the Originating Summons be struck out and the action dismissed with costs.
The plaintiff complied with that order. She sought by consent an order that Mr Robert Pringle QC be appointed the next friend. On 3 February 2014 Registrar Whitby made the order and Mr Pringle QC became the plaintiff's next friend.
Sometime after this appointment was made the plaintiff's solicitors apparently decided that Mr Pringle's age and health precluded him from acting as next friend. There is no evidence at all as to why Mr Pringle QC could not continue to act as the plaintiff's next friend - there is simply a bald assertion in correspondence from the plaintiff's solicitors to the defendants' solicitors that this is the case. In any event the defendants were content to have Mr Pringle QC replaced.
On 12 November 2014 they signed a minute of consent orders (attachment TG‑2 to the affidavit of Tihomir Galic sworn 16 June 2015), vacating the orders made by Registrar Whitby on 3 February 2014 and identifying Mr Ian Rothnie as the plaintiff's next friend. Mr Rothnie signed the appropriate consent. At the mediation held in November 2014 Registrar Dixon pointed out the consent orders would not be approved without someone providing the court with some information about Mr Rothnie. Clearly the registrar was correct in making this point and that was accepted by both the plaintiff and the defendants.
On 2 February 2015 Registrar Whitby ordered the plaintiff to:
(a)file an application before 23 February 2015 for the appointment of a next friend to replace Mr Pringle QC and any affidavits in support thereof; and
(b)to serve any further affidavit in support of the originating summons by the same date.
On 30 March 2015 the matter was adjourned to 13 April 2015 on the basis that the plaintiff's solicitors believed there might be psychiatric evidence to the effect the plaintiff no longer needed a next friend. On that basis the solicitors indicated they would consider filing an application to vacate my orders of 26 September 2013 and those of Registrar Whitby on 3 February 2014. On 13 April 2015 Registrar Whitby ordered the plaintiff to file an application before 18 May 2015 'to either appoint a substitute next friend or to vacate the orders appointing a next friend'. The plaintiff did not file that application and her solicitors (apparently through inadvertence) missed a status conference on 18 May 2015. At that status conference the court made the following order:
Unless the Plaintiff files and serves an application for either the appointment of a substitute next friend or to vacate the orders appointing the next friend, by 16 June 2015, the Originating Summons be struck out and the action dismissed with costs.
On 16 June 2015 the plaintiff filed a chamber summons returnable on 21 July 2015 seeking in the alternative:
(a)an order that the orders I made on 26 September 2013 be vacated; or
(b)that the orders of Registrar Whitby made on 3 February 2014 be vacated and Mr Ian Rothnie be appointed as the plaintiff's next friend.
The chamber summons of 16 June 2015 was accompanied by an affidavit of the plaintiff's solicitors, Mr Galic, sworn 16 June 2015. Relevantly it stated:
3.On the basis of new up to date medical evidence that will be adduced, it is sought to vacate the orders of Master Sanderson made on 29 August 2013 declaring the Plaintiff incapable of managing her affairs.
4.Further affidavit evidence is to be filed as soon as up to date medical evidence is on hand.
5.Alternatively, it is sought to vacate the previous orders of Registrar Whitby appointing the next friend made on 3 February 2014, and to appoint a substitute next friend in Mr Ian David Rothnie.
The affidavit went on to say Mr Rothnie is a friend of the plaintiff, a client of Mr Galic's, and in Mr Galic's view is a fit and proper person to act as next friend. Further, Mr Rothnie was prepared to act in that capacity. There was no conferral prior to the application being filed and no memorandum of conferral under O 59 r 9 of the Rules of the Supreme Court 1971 (WA). What was filed was a copy of the consent of 12 November 2014 pursuant to which the defendants had agreed to the appointment of Mr Rothnie as the replacement next friend.
On 17 July 2015 the second, third and fourth defendants filed an outline of submissions supporting their claim that the 18 May 2015 springing order had sprung because:
(a)of the lack of conferral prior to the filing of the chamber summons of 16 June 2015 and the absence of an application for an order waiving conferral;
(b)the 12 November 2014 minute of consent orders had been superceded by events, in particular, the claim there was no need for Mr Rothnie to be appointed as the plaintiff's next friend because the plaintiff no longer needed a next friend; and
(c)the affidavit filed with the chamber summons did not identify the grounds for the application or the medical evidence in support of it.
On 20 July 2015 Mr Galic swore another affidavit in which he explained why he did not confer with the defendants' solicitors before filing the chamber summons. He says he believed the 18 May 2015 order had been complied with. The affidavit was served on the defendants' solicitors on or about 20 July 2015 but was not filed with the court.
On 2 October 2015 Mr Galic filed:
(a)an amended chamber summons in which the plaintiff sought orders:
(i)waiving the operation of O 59 r 9(1) pursuant to O 59 r 9(2);
(ii)extending the time for compliance with order 1 of the orders made by Registrar Whitby on 18 May 2015 (the springing order) until and including 19 October 2015 pursuant to O 3 r 5; and
(iii)adjourning the chamber summons for six weeks for the purpose of obtaining a medical report from the plaintiff's treating psychiatrist as to the plaintiff's ability to instruct solicitors.
(b)an O 59 r 9(2) memorandum supporting waiver of conferral in relation to the chamber summons dated 16 October 2015.
The circumstances set out above really are a dreadful example of bungling and incompetence on the part of the plaintiff's solicitors. The deceased died in 2009. The originating summons was issued in October 2010 and now five years later the action is nowhere near ready for trial. The question for determination on this application is whether or not there has been compliance with the springing order made by Registrar Whitby and, if there has not been such compliance, whether time ought be extended to allow for compliance. Clearly determination of these questions has significant ramifications for the plaintiff.
In my view the plaintiff did not comply with the 18 May 2015 springing order either in form or in substance. Before detailing my reasons for reaching that conclusion it is worth considering precisely what was intended by the registrar's order.
Sometime prior to 18 May 2015 the plaintiff's solicitors must have come into possession of medical evidence which called into question the need for the plaintiff to have a next friend. What that evidence might have been is nowhere disclosed. The order of the registrar gave the plaintiff's solicitors a month to clarify the evidence. It has not been suggested the timeframe was too short or that for some reason evidence could not be obtained within the specified period. As no evidence has been filed it can be assumed none was obtained. So during that one month period the plaintiff's solicitors did nothing. It was precisely the possibility of a lack of action on the part of the plaintiff's solicitors the order was intended to address.
If ever there was a situation where conferral pursuant to O 59 r 9 was required this must surely be such a case. The defendants had consented to the replacement of Mr Pringle QC as next friend by Mr Rothnie. In no sense were they being difficult but they were entitled to know if Mr Rothnie was not to be appointed next friend and the plaintiff could continue the action in her own right, what evidence supported that position. Given their past attitude there is every possibility they would have consented to an order. Furthermore, if for some reason there was a delay in obtaining suitable medical evidence then there is every prospect the defendants may have consented to an extension of time. In the end it does not really matter what the outcome of the discussions might have been. The fact is they should have been held. There is no possible excuse for the plaintiff's solicitors not conferring orally with the defendants' solicitors.
Given the plaintiff's solicitors had not conferred under the terms of O 59 r 9(1) no order could be made on any chamber summons which was filed. That meant the intent of the registrar's order could not be realised. If the plaintiff's solicitors took the view the requirements of O 59 r 9(1) ought be waived then they could have sought prior to the hearing an order dispensing with the certificate as is anticipated by O 59 r 9(2). It is difficult to see how such an order could have been obtained in the circumstances of this case but it was an option available to the plaintiff's solicitors. There is no explanation as to why this was not done.
On behalf of the plaintiff it was submitted that in this State a springing order can be satisfied so long as there is compliance in form even if there is no compliance in substance. In support of that proposition, plaintiff's counsel relied on the decision of Wheeler J in Magenta Nominees Pty Ltd v Bonini [1999] WASC 88. In my view it is questionable whether that case stands for the proposition put by counsel. But if it does I would respectfully disagree. In this day and age where case management, while not an end in itself, is of crucial importance in the timely disposal of the court's business, and requires parties to actually do what an order contemplates. The registrar when making this order did not have in mind the plaintiff taking some half‑hearted or indecisive steps towards sorting out the representation of the plaintiff. The registrar had in mind the issue should be resolved so the action could be determined. After all by that stage it had been on foot for almost five years.
Having determined there was no compliance with the springing order the question then is whether or not the time for compliance ought be extended. Prior to the High Court decision in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 it was generally thought once the time for compliance with a springing order had passed, the court was functus officio and no extension of time could be granted. The High Court determined otherwise. At issue in that case was the question of power; the court did not have to consider the circumstances in which the power might be exercised. However in the course of her reasons Gaudron J said:
Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings (288).
In this case if the time is not enlarged and the action stands dismissed there is presumably no reason why the plaintiff could not apply for an extension of time within which to bring fresh proceedings. But she would have to apply for an extension of time. It is by no means certain that extension would be granted and it would be inappropriate to canvass in these reasons what the outcome of any application might be.
The authorities suggest that there are at least four factors to be taken into account when exercising the discretion. These are:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non‑compliance with the springing order;
(3)the prejudice to the defaulting party if the time is not extended; and
(4)the prejudice to the other party if time were extended.
The first of these has been dealt with above when recounting the facts. The order came to be made after persistent and consistent failures on the part of the plaintiff's solicitors to comply with orders made by the registrar. There could be no complaint about the fact the springing order was made. That is a factor in favour of refusing to extend time. There is no reasonable explanation for the failure to comply with the springing order. I need say nothing more on this question. This is a factor which is also in favour of not extending time for compliance.
There is no doubt a real possibility the plaintiff will suffer significant prejudice if the time is not extended. Without going through the evidence in detail it is clear the plaintiff by this action wants an order which would allow her to remain in occupation of the home she occupied with the deceased and which she has continued to occupy in the six years since his passing. If the plaintiff was not able to issue fresh proceedings if this action stands dismissed then any claim she may have against her present solicitor would not alter the fact she would have to vacate her present residence. That is a real prejudice. The difficulty is of course to assess just how likely it is that event would come to pass. There is no doubt the defendants would suffer prejudice if the time is extended. This action has been on foot for five years and it is difficult to see if it were to progress it could be resolved in under 12 months. On the very best case scenario the action is unlikely to be heard before the second half of 2016 and it is very likely to be resolved more than seven years after their father's passing.
In the end I have resolved that time for compliance should be extended. I have reached that decision for two main reasons. First, the possibility that if time were not extended fresh proceedings would be issued and that would do nothing more than add to the time and expense involved in dealing with the plaintiff's claim. Second, the potential prejudice to the plaintiff if she could not issue fresh proceedings of being forced to give up a home in which she wishes to live. I acknowledge there is a degree of speculation as to whether such prejudice would ever come about. But I accept there is that possibility.
The present form of the orders proposed by the plaintiff may not adequately reflect this decision. Accordingly, I will hear from the parties as to the appropriate form of orders subsequent to the publication of these reasons. So far as the costs are concerned it is difficult to see why the defendants' costs should not be met on a full indemnity basis with the plaintiff's solicitors to bear those costs. I will hear the parties and the plaintiff's solicitors on this issue.