Love v Love

[1989] HCATrans 309

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 1989

B e t w e e n -

GEORGE CLIFTON LOVE

Applicant

and

GAIL MARIE LOVE

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

GAUDRON J

Love

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 1989, AT 2.31 PM

Copyright in the High Court of Australia

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MR A.J. SULLIVAN:  May it please Your Honours, I appear with

my learned friend, MR B.A.M. CONNELL, for the applicant.

(instructed by Verekers)

MR D.P.F. OFFICER, QC:  May it please Your Honours, I appear

with my learned friend, MR R.J. POWELL, for the

respondent. (instructed by Fred A. & John F. Newnham)

MASON CJ: Yes, Mr Sullivan.

MR SULLIVAN:  Your Honours, I have taken the liberty of

preparing a written outline of submission because I

have to say that the approach which I will be seeking

to put before Your Honours today differs somewhat from

the affidavit which has been put on. In particular,

I do not seek to press before this Court what I may

call the jurisdictional aspect, namely the ability of

the Family Court to have jurisdiction in a situation

where service has not been effected. I wonder whether

it might be a more proper use of the Court's time

if the Court was just to briefly read the submissions - the

outline I have put and then if I spoke briefly to them,

if that is a convenient course?

MASON CJ: Well, it certainly would seem to be, Mr Sullivan,

if you are not relying on the jurisdictional argument.

MR SULLIVAN: 

Yes, Your Honour.

MASON CJ: 

But I should repeat what I have said on previous

occasions, that is, that the Court does go to some
trouble to read the materials that are filed
with a view to forming some appreciation of the

case before it comes on for oral argument and we

have stressed also on previous occasions that if there
is to be a change in the basis on which the case is

to be presented, the materials relevant to that change

should be placed in the hands of the Court before the
matter is listed for hearing. It means that, otherwise,
the Court's time is wasted and the Court is not in a

position to, as it were, appreciate the oral argument

when it is presented. 

Now, it may be that the responsibility in this

case does not lie with you at all but necessarily it lies with those who are advising the applicant.

MR SULLIVAN:  Your Honour, both - I should say what I would

seek to put to Your Honours this afternoon has been

covered in the affidavit but what I am doing is

abandoning part of the affidavit rather than anything

else and I did that, with respect, to save the Court's

time rather than to increase the Court's time.

Your Honours, the submission which I make is

simply this, there has been manifestly a miscarriage

of justice in this case because not only has the
Full Court sought to intervene and to interfere with

the exercise of the trial judge's discretion but, indeed,

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it has done so itself in a way which shows that it is

in error and that is the matter particularly which I

have addressed in connection with the period of delay

which was obviously a matter of great significance to

the trial judge, the 3\ year period.

As I have indicated in the outline of submissions,

the Full Court appears to have seized upon the wording

of section 79(8) -and Your Honours will find that
wording in tab B of the materials I have handed up -

that you can make this application upon the legal

personal representative. If one goes to the wording

of that section - and I hope Your Honours are in more

luck than I am because - - -

MASON CJ:	No.	Well, I have been no more lucky than you.
MR SULLIVAN:	Mine seems to be omitted.	I can hand up a

copy of the Act.

MASON CJ:	I think we probably have the Act anyhow, Mr Sullivan.
MR SULLIVAN:	I am grateful to Your Honour.
MASON CJ:	We each have a copy of the statute.

MR SULLIVAN:  Thank you, Your Honour. If one goes to

section 79(8) of the Act, the Act states that:

Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either

party to the proceedings 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 Rules of Court may make

provision in relation to the substitution of the legal personal representative as a party to the proceedings.

That is the foundation of the application which the

wife, if I might use that expression, made in this

case.

GAUDRON J: Is it the source of the discretion, do you say?

MR SULLIVAN: No, Your Honour. The discretion

appears to have come from the power expressly given

by that section to make rules in that respect and

one then turns to the rules and there is

order 14 rule 9 states - do Your Honours have that

rule?

MASON CJ: Where do we find it?

MR SULLIVAN:  I thought Your Honours had the legislation?

MASON CJ: Yes, what page though?

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MR SULLIVAN: Well, Your Honour, I might have a different
version to Your Honour, I apologize to say.

MASON CJ: Order 13 - - -?

MR SULLIVAN: Order 14, rule 9. It is behind the rules section.

MASON CJ: Yes. Well, we have it in this - - -

GAUDRON J:	I do not.
BRENNAN J:	I do not.  Mine at page 86,999 finishes at rule 6,

(4) to (14).

MASON CJ:  So does mine now that I have found the page.

GAUDRON J: Mine even earlier.

MR SULLIVAN:  Your Honours may have the old Act, I think, with

respect. Might I hand my copy of the rule up? I am

sorry, Your Honours, that has been photocopied, I apologize

in that material which I have given you.	It is the last
page of the photocopies.

MASON CJ:	I see.
MR SULLIVAN:	Your Honours will see order 14 rule 9 which was

inserted in 1989 being in these terms; that:

Where a person dies and proceedings may,

under the Act, be instituted or continued

in a court by or against the estate, or
the legal personal representative, of the
person, the court may make any orders it
thinks proper with respect to the conduct of

the proceedings, including:

(a) an order -

and (a) is the relevant one -

that the legal personal representative

of the person be substituted for the

person as a party.

GAUDRON J:  I would not have read that as conferring a

discretion to the effect that - assuming the

jurisdiction point, as you have conceded it - there

was a discretion to refuse to allow the continuation

of the proceedings by refusing the substitution of

the legal personal representative.

MR SULLIVAN:  Your Honour, in my submission, that follows from

the use of the language, "the court may make any orders

it thinks proper - - -"

GAUDRON J:  - - -"with respect to the conduct", not with respect to ensuring that there are no such proceedings.

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MR SULLIVAN: But, Your Honour, then if one goes, with respect,

to subparagraph (a) of that order:

including:

(a) an order -

and that order is necessary to enable the conduct to

be proceeded so that it contemplates that it does not

necessarily have to make that order, in my respectful

submission.

GAUDRON J: Well, that would mean, would it not, if you concede

the jurisdiction point, that the court may make orders

having the effect that the proceedings may not be

continued against a legal personal representative?

MR SULLIVAN:  Yes, Your Honour.

GAUDRON J: That is a very strange construction to place on

rule 9 in the light of the statutory provision, is it

not?

MR SULLIVAN:  Well, with respect, not, Your Honour. The

statutory provision contemplates, in my respectful

submission, that the rules will govern the procedures

to be adopted.

GAUDRON J: The procedure, not necessarily the right to

continue the proceedings.which your interpretation

takes it to, I think.

MR SULLIVAN:  Your Honour, it does not, with respect, take -

the application is made under section 79(8) for the

right to be joined. The court, in my respectful

submission, always has an inherent power~ Even this

Court, it being a statutory creature, still has an

inherent power of the conduct of proceedings including,

for instance, to stay proceedings perpetually,

and that would - - -

GAUDRON J: The limits to the power of the court to exercise

such a discretion so as to refuse to exercise

jurisdiction may not be precise but they are at least

within a fairly well-understood compass, are they not?

MR SULLIVAN:  They are, Your Honour. Your Honour, a court

always has a power and the Family Court has an

express power, as many others have, to stay proceedings

permanently, for instance.

GAUDRON J: So, the matter is to be approached on the basis

of a stay, is it?

MR SULLIVAN: Well, Your Honour, no. The matter is to be

approached, with respect, upon the basis that the

application which was made by the respondent in this

Court to the Family Court was an application that the

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executor be joined as a party in substitute for

the deceased husband. The trial judge said that

he had two reasons for not doing so: one, the

jurisdictional basis and, secondly, a

discretionary basis.

GAUDRON J:  But the effect of what the trial judge said

was to decline to exercise jurisdiction, was it not?

MR SULLIVAN:  Yes, Your Honour, with respect, on those two

bases.

GAUDRON J: Yes, but the effect of what he did was to do that?

MR SULLIVAN:	Yes, Your Honour.
GAUDRON J:	Now, assuming there be a discretionary power

to decline to exercise jurisdiction, there would need

to be fairly persuasive factors to result in that

situation, would there not, on ordinary principles?

MR SULLIVAN:  Yes, Your Honour, there would be, with respect.

One agrees with that, and if I could, by reason of analogy, Your Honour, take Your Honour to the situation which is well known in the law of amendments and what

this Court has said many times relating to an amendment:

basically, an amendment to pleadings, for instance,

will always be allowed unless there is irreparable

prejudice. Now, one of the categories in which irreparaole

prejudice has been held to exist, for instance, has been

where an allegation is made where someone could have

put an answer to it but unfortunately that person has

died so you cannot get the answer to it. That, in a sense,

in my respectful submission, is analogous to what has

occurred here.

GAUDRON J: Except that here you are in a situation where the

Act expressly contemplates that proceedings may be

continued after death.

MR SULLIVAN: Yes, Your Honour and, with respect, for good

reason because in many cases it will not be manifestly

unfair so to do but the question is, in my respectful

submission, one which has to be looked at at the

initial trial level, if you like, Your Honour, in - - -

GAUDRON J:	Was this case put in the Full Court?
MR SULLIVAN:	Your Honour, as far as I am aware, from reading

the transcript of the Full Court, there was no -
what the Full Court did in this computation of

the period of delay was not something which was the

subject of argument, it was something which the court - - -

GAUDRON J:  Was the case put to the Full Court that there was a

proper exercise of a discretion - we will assume for the

moment one existed - to refuse substitution and that

the Full Court should not interfere in it?

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MR SULLIVAN:  I will just get instructions but I am sure it

was, Your Honour. My instructions are that that case

was put and I think my learned friend's junior

was appearing in that matter and - I am told by my

opponents, and I am grateful for them, that there was

put that there should not be any interference with

the discretion and that the discussion turned around

this question of delay which I am now raising with

Your Honour.

BRENNAN J~ The problem really is that the kind of proceedings

with which section 79(8) is concerned are proceedings

not for the enforcement of an existing and thoroughly

constituted right but, indeed, for the exercise of a

curial discretion which creates new property interests.

MR SULLIVAN:	Yes, Your Honour.
BRENNAN J:	So that if the death of the party has any effect

upon proceedings of that kind it is to bar the

claim for the exercise of the curial power.

MR SULLIVAN:	Yes. The effect of -
BRENNAN J:	So that the question of whether or not the order

is made or not is not a mere matter of procedure.

MR SULLIVAN:  No, Your Honour.

BRENNAN J: It really is one of real substance.

MR SULLIVAN:  With respect, in practice, I would agree with

Your Honour, if I may be so bold as to say so. One

can imagine theoretically that that is not the case
because the rejection of this application would conceivably

enable the court, if it so decided, to decide this

respondent's application on an ex parte basis. One

could not imagine, with respect, that occurring.

But Your Honour may have noted from His Honour the

application, no cross-claim to dismiss the property	trial judge's reasons - he said that there was no
application so he would not have made that order. He
did, however, indicate, and what the reality of the
matter is, of course, Your Honour, is that there is a
FAMILY PROVISIONS ACT proceeding on at the same
time in this contest and, indeed, as the case of this
Court indicated - FISHER V FISHER referred to in the
judgment of the Full Court - in many cases the
considerations to be followed or to be applied in such an application overlap with - if not entirely, but to a large extent with the considerations to be taken into
account in a section 79 application.

That is a relevant factor, in my submission, is

we are not talking, with respect, in this case about

the - - -

GAUDRON J: Does that mean that what we are really concerned with

is a ploy to keep the proceedings in the Family Court on

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foot so as to raise an argument of inconsistency to

defeat a hearing of the proceedings under the FAMILY

PROVISIONS ACT?

MR SULLIVAN:  I am sorry, a ploy on the part of the applicant,

was Your Honour - - -?

GAUDRON J:	Yes.
MR SULLIVAN:	No, Your Honour, with respect.

GAUDRON J: Well, that is the consequence, is it not? Until

the proceedings are dismissed in the Family Court which

your client,not having been a party, does not seek

and it may or may not be that the applicant in the

Family Court would seek to have it dealt with ex parte,

but leave that aside. But whilst they were pending

there could be no hearing and determination of proceedings

under the FAMILY COURT ACT except by virtue of the

cross-vesting order that was in fact made, is that

not right? So that it would never be necessary to

decide which proceedings were, in fact, determining

the outcome.

MR SULLIVAN:  No, Your Honour. With respect, that is not

the consequence as I understand the law. There is nothing

to stop the FAMILY PROVISIONS ACT proceeding

continuing.

GAUDRON J: Whilst this proceeding is on foot?

MR SULLIVAN:	No, Your Honour.
GAUDRON J:	I would have thought there might well be.

MR SULLIVAN: Well, Your Honour, in my submission, there is not.

Indeed, what had happened was that the FAMILY PROVISIONS

ACT matter was set down for hearing and then there was

an indication that there was going to be this application

by the respondent wife and so those proceedings were

adjourned for this application to be heard and the

applicant wife then wished to have the two proceedings
consolidated.	But there was never any question, with

respect, I should hasten to add that, of some ploy

being adopted by the applicant. One might be

tempted to say - - -

GAUDRON J: Whether or not it was a ploy, it would not be

clear to me that the proceedings under the FAMILY

PROVISIONS ACT could continue whilst the proceedings

were on foot in the Family Court because you would

then have the possibility of orders being made in

disregard of each other out of the same body of assets.

MR SULLIVAN:  Yes, Your Honour, but on different criteria. As

I said, the law tends to overlap but it is certainly not entirely within the same framework and, in my respectful

submission, there are a number - - -

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GAUDRON J:  Your submission must be then, is it - I take it

there was that - had the proceedings been served on

the deceased and any other procedural steps as

necessary taken, there could ultimately have been orders

made under the FAMILY PROVISION ACT and under the

FAMILY LAW ACT?

MR SULLIVAN:  Yes, Your Honour, and indeed what would happen,

in my respectful submission, would be this - - -

GAUDRON J: Well then, why does it matter? Why does the case

matter?

MR SULLIVAN:  Your Honour, if I might answer it in two stages

if I may. What would happen in the second application,
if the FAMILY COURT ACT proceedings came second, would

be that it would obviously be a matter of great

importance to consider the outcome of the FAMILY PROVISIONS

ACT proceeding. If the wife got a substantial sum of

money then, then the court under the powers under

section 79(4) would clearly take that into account

and I think there is authority to that effect.	I must
say, I cannot be more categorical about that so that that is the way it would proceed.

As to why does it matter, Your Honour. It matters for this reason: the considerations which can be taken into account on the FAMILY LAW ACT are much more extensive

much wider in ambit than under the FAMILY PROVISIONS

ACT. It is manifestly unfair, in my submission, for those proceedings to continue or to facilitate those

proceedings where a person has died and there has been

a delay. But those two factors are relevant and

that is a reason - - -

GAUDRON J: Where is the prejudice in the delay in any event?	The best you can put it, Mr Sullivan, surely, is
that there has been prejudice by reason of delay,
not merely the fact of the delay. Now, I am talking
about the delay -
MR SULLIVAN:	Yes, delay per se.
GAUDRON J - - - not the service on the deceased.
MR SULLIVAN:	Your Honour, one can say that apart from the

problem of not being able to fully administer the

estate and the like - - -

GAUDRON J:	There waa no grant until a little while before this.
MR SULLIVAN:	Your Honour, one, with respect, has to face the

realities of the situation. There is a sole beneficiary

who is a child, the infant child of the respondent wife,

and the situation is, Your Honour, in my respectful

submission, that I cannot point to any forensic prejudice in the sense of the case would be difficult to run except

for time and lapse of memory and the like, but the real

prejudice, Your Honour, from those two factors is quite
plainly the fact, the inability to get instructions from

the grave. That is the first -

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GAUD RON J: Well, that is	service.	That is the first point.

MR SULLIVAN: That is the service point, Your Honour.

GAUDRON J: Yes, but there is no prejudice merely by reason of

delay in the circumstances where the grant was not

made until about the same time.

MR SULLIVAN:  No, Your Honour. But, Your Honour, one has the

situation, in my respectful submission, that this Court

has quite rightly laid down the criteria or the

circumstances in which an appellate court, especially -

a particular Family Court can interfere with a

discretionary decision of a trial judge. This particular

court on this occasion, the Full Family Court, sought to

do so on a basis which in law, in my respectful submission,

is clearly erroneous.

GAUDRON J: Well, you say so but how could it be erroneous

for them to say, as you now concede there is no prejudice,

that it was proper for a trial judge to take into account

delay,which was non-prejudicial, in the exercise of the

discretion? I mean, surely, the discretion could be

exercised on the basis of delay only if it was

prejudicial delay.

MR SULLIVAN: Well, Your Honour, with great respect, there have

been many occasions - in Equity Courts and Family Courts,

I imagine; but certainly in Equity Courts - where there is

no need to prove prejudice, for instance, for laches.

GAUDRON J: Yes, but this is a question of defeating the

jurisdiction. It is not a_question of making a defence.

MR SULLIVAN:· Well, with respect, so is laches. The effect is

the same and, in my respectful submission, the reason for
delay, Your Honour, is that a delay is an affront to the

administration of justice. It is like striking out

a proceeding for want of prosecution. Indeed, that is,

in effect, what it amounts to, in my respectful submission.

And one does not have to show prejudice when one makes

an application to strike out for want of prosecution.

It is quite plain the Full Court recognized that delay

per se was a correct factor to take into account in the

exercise of the discretion. What they did, and what

they did, in my respectful submission, wrongly, was

to say, "Well, the delay wasn't very much at all, it

was only six months rather than three-and-a-half years."

GAUDRON J: Well, you have to put it on the basis that

non-prejudicial delay can defeat jurisdiction.

MR SULLIVAN:  Your Honour, if that was the only matter which

the trial judge had relied upon, then -

GAUDRON J:  But that is ·not suf fieient, is it? You see, your

proposition has got to be that the Full Court could not

interfere with the discretion and if it was not permissible

for the trial judge to have regard to non-prejudicial

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delay, then he took into account an irrelevant

consideration which would have allowed the Full Court

to set aside the exercise of the discretion and exercise

it afresh. So, you have got to say it was permissible

for the discretion to be exercised by reference to

non-prejudicial delay.

MR SUILIVAN: Your Honour, I do not shrink from saying that at

all, with respect, and indeed from what·haa~fallen from

Your Honour, with respect, it helps me on a matter

which I was going to confess that I had some difficulty
with as a matter of public importance of this question.

But if Your Honour is correct in Your Honour's analysis

in the discussion Your Honour has been having with me

from the bench, with respect, then it is a matter of

great public importance to determine whether a judge,	in the exercise of his discretion, can take into account
delay without having to consider the effect of prejudice by that delay.

GAUDRON J: To defeat jurisdiction.

MR SULLIVAN: To defeat jurisdiction. And, Your Honour, in

my respectful - - -

GAUDRON J: That is hardly arguable, is it?

MR SULLIVAN: 

Your Honour, it has been argued, with great

respect, in equity for hundreds of years and the
Family Court follows the equitable principles in many

ways.

GAUDRON J: Yes. Well, to defeat jurisdiction in the

case of -

MR SULLIVAN: Well, the defence of· laches defeats the claim,

Your Honour.

GAUDRON J~ Yes. I thought the more recent consideration of

laches by this Court put it squarely on the basis of

prejudice.

MR SULLIVAN: Your Honour, in some matters they do. There are

many - it is not an argument, I must say, that I have

come prepared to meet but - Your Honour, my submission

is that the recognizable - and I must say I have not

come prepared to argue this extensively. There is
a very strong school of thought in this country,
including this Court, that one does not need to prove

prejudice to succeed on a defence of · · laches, but I

have not got the authorities with me.

MASON CJ: What is the recent decision of this Court given about

18 months/2 years ago from Queensland?

MR SULLIVAN:  Your Honour, I must say that I have been struggling

since Her Honour Justice Gaudron mentioned the recent
decision - I cannot, for the life of me, recall the name

of it.

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MASON CJ: Yes, it is a decision that I have managed, as it were,

to ~xpunge from my memory - - -

MR SULLIVAN:  Yes, I recall Your Honour was in dissent.

MASON CJ: That is right, exactly. The dissenting Judges,

Justice Deane and myself held, as I recollect, that

laches was a defence in that case. The majority

held otherwise. But my recollection is that we held

that laches was a defence on the basis that it gave

rise to prejudice.

MR SULLIVAN:  Yes. I believe Your Honours may well have said

that but without seeing the judgment, I must say, I

cannot be clear about it. But the traditional starting

point for laches cases - I am really showing my failure

of memory - - -

MASON CJ:	But is it not true to say that, as a matter of general unders't:anding, laches has involved some
element of prejudice? After all, delay as such in
equity has only been regarded as a defence to
interlocutory applications.  I have never understood
that mere delay is a defence in equity in a final action.
MR SULLIVAN:	Your Honour, if it does not qualify as laches,

with respect, Your Honour is perfectly correct but
my understanding of mere delay, if it were just not
laches - but delay which shows a contumatious

disregard for the running of the court or for the

interests of the other party in getting litigation

on per se, with respect, has been held to constitute

laches without the other party having to show that

they were thereby·prejudiced. And that is, with

respect, the difference between mere delay and - - -

GAUDRON J: But what takes this beyond mere delay in any

event? Certainly, it is not prejudice.

MR SULLIVAN: Well, Your Honour, might I say these things -

I have tried to say them in my submissions. We had

an application filed, I think here, 7 June 1985;

left to lie dormant whilst - - -

GAUDRON J:	- - - whilst the probate issues were litigated.
MR SULLIVAN:	Not only the probate issue was litigated,

Your Honour. Before the probate matter was litigated

the respondent wife also decided to put on an application

under the FAMILY PROVISIONS ACT so she was, in effect,

with respect, having three separate bites of this cherry.

She was going to challenge the will so that she could

get letters of administration and the.whole thing would

go away; not having served this document, then

connnenced the FAMILY PROVISIONS ACT proceedings and

then, at the last moment, these actions are revived in

December 1988. So, Your Honour, with great respect,

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what this respondent has done and what clearly affected

not only delayed here but there has been a reason for	His Honour the trial judge was to say, "Well, she has
it. She has been more busy casting her net wider in
respect of the same relief" and it is in that category -
it is more than, in my respectful submission, simply
mere delay. It is a relevant matter, in my respectful
submission, to be taken into account.

GAUDRON J: Well, you would never put the case on the basis

that she is to be taken as having elected as between different remedies available and it would be far too

late to take that case.

MR SULLIVAN: Well, that is precisely why the case has not

been taken now, Your Honour, I acknowledge that.

GAUDRON J: That it is too late to take that case.

MR SULLIVAN: Yes, I acknowledge that.

GAUDRON J: And that is really what you are saying now.

MR SULLIVAN:  No, I am not saying that, with respect. I am not

attempting to say that, your Honour. I am attempting to

answer Your Honour's question as to why it is more than

mere delay.

GAUDRON J: More than mere delay but, in effect, that is saying

it is more than mere delay, the applicant wife has taken

other remedies; she should therefore be shut out from

such remedy as there is. It is very, very close

to - - -

MR SULLIVAN: But, with respect, that is what the trial judge

to the Family - the FAMILY PROVISIONS ACT should be	said. The trial judge said that the matter should go
instituted and heard and when that was finished the
Family Law proceedings should be dismissed. So that
that was clearly a matter which actuated His Honour's decision and, in my respectful submission, that was a
legitimate consideration. His Honour was concerned
to see that there was a finality of litigation between
the parties which is a proper judicial matter to take into account. He was concerned to see there was a
proper hearing of the matter in what he considered to be an appropriate tribunal. Your Honour, with
great respect, that is clear from his judgment and,
delay but it was what occurred during the period of in my respectful submission, it was not just the mere
delay which influenced His Honour.
But if I may revert, Your Honour - because I do not wish to take too much of the Court's time -
the Full Court did not say His Honour was wrong to take
into account delay nor to take into account the service
issue. What it did was to seek to minimize those two
things and did so, in my respectful submission, in a
way which was completely erroneous because they failed

SlT13/13/PLC	13	8/12/89
Love

to recognize a basic principle of probate law. And I

have set that out and if my friend seeks to dispute those

principles perhaps I could briefly respond to it but it

was completely erroneous for them to say that there was

not a legal personal representative until the grant of

probate.

GAUDRON J: It might have been loose language but in

traditional terms one awaits the grant before cormnencing

action against a person, a named executor, because a

named executor might renounce.

MR SULLIVAN: This respondent did not do that in the FAMILY

PROVISIONS ACT proceedings, Your Honour. She cormnenced

the proceedings against Mr Love in his own name before

probate was granted. So that one cannot even point in this

case to an instance which supports Your Honour's

perception, with respect, to the practice and, in my

respectful submission, that is not the practice in

>" any event.

GAUDRON J: Not the practice in the Family Court?

MR SULLIVAN:  I am not aware of the practice in the Family Court,

Your Honour, I must say. I cannot give Your Honour any

indication of practice there. But my understanding is

that the law has been settled for 300 years, that

actions can be commenced from the time - against an

executor or by an executor, once he has accepted the
office of executor and well before probate is granted
because the probate is the authentication or the

evideuce of the grant, not the grant itself and the

.title does not spring from the proj~te.

GAUDRON J: That is true but the more,usuai course is to wai:

until the grant lest there be a renouncing.

MR SULLIVAN:  But in this particular case, and if one is

talking about this case and what considerations the

court should have taken into account, here we had a

situation where the respondent expressly did not

adopt that course with the FAMILY PROVISIONS ACT

proceedings. She knew from reason of the fact

that they had been defended, with respect, that the

grant had not been renounced and Your Honour will be

well aware, with respect, of the authorities that say

that once you accept the office you·· cannot renounce.

GAUDRON J: Yes, but it is not always a matter within the

knowledge of litigants whether ar not an office has

Tl3 been accepted.

MR SULLIVAN:  It was within the knowledge-of.the litigants,

in my respectful.submission, that it had been accepted

once the application for - - -

GAUDRON J: Well, you ask us to assume that on the basis of

material that is not in the application book, do you?

No, it is in the judgment, is it not, the first - - -

SlT14/l/PLC	14	8/12/89
Love

MR SULLIVAN:  Yes, it is in the judgment, Your Honour, yes.

The fact of the matter is that the facts which are

on the public record - the application for proving the

will in solemn form commenced in 1985. Now, from

that stage on, in my respectful submission,

Mr Colin Love could not have renounced probate as such.

So that one has the situation, in my respectful

submission - - -

GAUDRON J: But, on the other hand, if, as at 1985, the

application had been made in the Family Court, it

is clear that as a matter of practice nothing would

have transpired pending the determination of the

probate proceedings?

MR SULLIVAN:  Your Honour, one would imagine that would have

been the case, yes, because it may well have been

otiose ·to need· to do that. Yes, one would imagine

that would occur. But, Your Honour, one comes back,

in my respectful submission, to the question of

principle in this case. You have got a court, in

my respectful submission, a Full Court of the Family

Court which has completely failed to follow, erroneously.

or not, what this Court in NORBIS V NORBIS and GRONOW V

GRONOW has said it must do, ·and~c'h1it it- eannoe-•interfere

with what Their Honours the Chief Justice and

Justice Deane said in their joint judgment in NORBIS V

NORBIS. It cannot interfere with a trial judge's

decision unless the trial judge's decision is shown to be wrong. They set out to show it was wrong on

two bases. Then doing so, with respect, exposed their

own error rather than the trial judge's error.

GAUDRON J: Well, it is not so much an exposure of their own

error that is important because that would

necessarily - - -

MR SULLIVAN: No, Your Honour, it is not. It is just -

GAUDRON J: But it is in establishing that there was no

error on the part of the trial judge and that is to	say that it would have been permissible to decline
did not impact.upon the proceedings and in ta exercise jurisdiction by reference to delay which
circumstances where the delay can be seen to be
explicable by the existence of probate proceedings, the outcome of which in a normal course of events
would b~ expected to be determined before anything
happened in these proceedings.

MR SULLIVAN: Well, Your Honour, if I might just - without	wishing to enlarge this debate any more than I have to -
to make two respectful submissions in response to that:
first, Your Honour has overlooked the second reason
the judge gave that the - - -

GAUDRON J: You have got to say he was right, that he had no

error.

S1Tl4/2/PLC	15	8/12/89
Love
MR SULLIVAN:	No, Your Honour.	I have to say, with respect,

in my submission, that the reasons His Honour gave

were correct and that the combination of those two

reasons, in my respectful submission, is correct

because there was prejudice and, as well, there was

in His Honour's view the inappropriateness of having,

after such a delay, these proceedings brought. But

he was not looking at those in isolation, he expressly

juxtaposed those two things. That is the first matter,

Your Honours. The second matter is, Your Honour

said, with respect, that it is explicable to await

the outcome of the probate proceedings. If I might

answer that by saying the probate proceedings were

decided in February 1987. There was no appeal

from that decision of Mr Justice McClelland by

the respondent wife. Even then she waited 18 months

after the outcome of the probate proceedings, or more -

20 months - before taking a step. In my respectful

submission, on that factual basis it cannot be

sald that delay is explicable by waiting for the

outcome of the probate proceedings and so that, in my respectful submission, His Honour was not wrong

on either ground. The Full Court did not even

suggest that he was wrong on those grounds, rather,

they suggested he had been led into error by

his reading of the chronology and, Your Honours, in

my respectful submission, for the reasons I have

advanced in the outline of submissions if anyone was

in error it was the Full Family Court in that regard.

So that one has got a situation that, in

my respectful submission, in the interests of justice

when there is clearly a decision of an intermediate

Court oi Appeal which is wrong, which affects

adversely the rights of a party, then that should be

a matter where this Court should grant special leave

especially with the added interest which Your Honours -

I must say which I had not, with respect, though of,

that if it is arguable that there always has to be

prejudice before one can take into account delay in

the exercise of discretion of this sort, then that

is also a matter, with respect, of importance

which should be determined by this Court.

MASON CJ: Well, I think you have taken the matter as far as

you can, thank you, Mr Sullivan.

MR SULLIVAN:  Yes, thank you, Your Honour.

MASON CJ: The Court need not trouble you, Mr Officer. The

Court is of opinion that the decision of the Full

Court of the Family Court is not attended with

sufficient doubt to justify the grant of special leave

to appeal. The application is therefore refused.

MR SULLIVAN: If the Court pleases.

S1Tl4/3/PLC	16	8/12/89
Love

MR OFFICER:  I make an application for costs.

MASON CJ: Yes. Do you oppose that, Mr Sullivan?

MR SULLIVAN:  No, Your Honour.

MASON CJ: The application is refused with costs.

AT 3.16 PM THE MATTER WAS ADJOURNED SINE DIE

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Love