Marsah v Commonwealth of Australia
[2006] WASC 309
•21 DECEMBER 2006
MARSAH & ORS -v- COMMONWEALTH OF AUSTRALIA [2006] WASC 309
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 309 | |
| 20/12/2006 | |||
| Case No: | CIV:2057/1996 | 14 SEPTEMBER & 28 NOVEMBER 2006 | |
| Coram: | MASTER SANDERSON | 28/11/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for replacement dismissed Application for solicitor ceasing to act granted | ||
| B | |||
| PDF Version |
| Parties: | AIN BIN MARSAH MENG KOK HU BADRON RIDWEE NOOLIYA BINTE SALLEH COMMONWEALTH OF AUSTRALIA |
Catchwords: | Practice and procedure Application to replace deceased plaintiffs Application for solicitor to be removed from record Turns on own facts |
Legislation: | Administration Act 1903 (WA) |
Case References: | Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867 Bangkok Bank Ltd v Swatow Lace Co Ltd [1963] NSWR 488 Blagrave v Blagrave (1847) 64 ER 1056 De Garis Kendenup (WA) Development Co Ltd v Courtis (1925) 28 WALR 54 Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521 In Re Co-operative Development Funds of Australia Ltd (No 2) (1977) 19 SASR 105 Millie Nominees Pty Ltd v Discount Factors Pty Ltd, unreported; FCt SCt of WA; Library No 6934, 20 November 1987 Weguelin v Weguelin (1839) 163 ER 406 Willis v Trequair (1906) 3 CLR 912 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MENG KOK HU
Second Plaintiff
BADRON RIDWEE
Third Plaintiff
NOOLIYA BINTE SALLEH
Fourth Plaintiff
AND
COMMONWEALTH OF AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application to replace deceased plaintiffs - Application for solicitor to be removed from record - Turns on own facts
(Page 2)
Legislation:
Administration Act 1903 (WA)
Result:
Application for replacement dismissed
Application for solicitor ceasing to act granted
Category: B
Representation:
Counsel:
First Plaintiff : Mr T Mijatovic
Second Plaintiff : Mr T Mijatovic
Third Plaintiff : Mr T Mijatovic
Fourth Plaintiff : Mr T Mijatovic
Defendant : Mr S OwenConway QC
Solicitors:
First Plaintiff : TRM Legal Services
Second Plaintiff : TRM Legal Services
Third Plaintiff : TRM Legal Services
Fourth Plaintiff : TRM Legal Services
Defendant : Australian Government Solicitor
Case(s) referred to in judgment(s):
Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867
Case(s) also cited:
Bangkok Bank Ltd v Swatow Lace Co Ltd [1963] NSWR 488
Blagrave v Blagrave (1847) 64 ER 1056
De Garis Kendenup (WA) Development Co Ltd v Courtis (1925) 28 WALR 54
Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521
(Page 3)
In Re Co-operative Development Funds of Australia Ltd (No 2) (1977) 19 SASR 105
Millie Nominees Pty Ltd v Discount Factors Pty Ltd, unreported; FCt SCt of WA; Library No 6934, 20 November 1987
Weguelin v Weguelin (1839) 163 ER 406
Willis v Trequair (1906) 3 CLR 912
(Page 4)
1 MASTER SANDERSON: By chamber summons dated 14 August 2006, the plaintiffs made application for the following orders:
"1. The first plaintiff, Ain Bin Marsah (deceased), be substituted as a party by ISTIANAH BINTE MARSAH, or in the event of her death be substituted by RAPI BIN BILDA, as the personal representative of Ain Bin Marsah pursuant to Order 18 Rule 7.
2. The deceased third plaintiff, Badron Bin Ridwee (deceased), be substituted as a party by SARYA BINTE RIDWEE, or in the event of her death be substituted by SURIATI BADRON, as the personal representative of Badron Bin Ridwee pursuant to Order 18 Rule 7.
3. The following witnesses be examined viva voce pursuant to Order 38 Rule 1 and Form No. 25 before a Master and the plaintiff's solicitors do give the defendant's solicitors 42 days notice in writing of the time and place where the examination is to take place:-
a. Nooliyah Binte Salleh of 7 Marden Road Thornlie WA 6108 (the fourth plaintiff)
b. Sarya Binte Badron of 20 Ursuline Vista Queens Park WA 6107 (the widow of the deceased third plaintiff)
c. Suriatai Binte Badron of 20 Ursuline Vista Queens Park WA 6107 (the daughter of the deceased third plaintiff)
d. Istianah Binte Marsah Of 32 Champion Drive Armadale WA 6112 (the widow of the first plaintiff)
e. Meng Kok Hu of 18 Wilby Place Thornlie WA 6108 (the second plaintiff)
4. The depositions of the said witnesses be transcribed and be further recorded by visual video/dvd.
5. The depositions and transcriptions and video/dvd recordings taken at the examination be filed in the Central Office of the Supreme Court, and that office copies
- thereof may be read and given in evidence on the trial of this cause, saving all exceptions, without any further proof of the absence of the said witness than the affidavit of the solicitor of the party using the same, as to his belief;
- 6. Leave be given to TRM Legal Services to cease acting and withdraw as solicitors of record for the plaintiffs.
7. The costs of this application be in the cause."
2 On 14 September 2006, I made orders dismissing the application so far as pars 1 through to 5 were concerned. On 28 November 2006, I made an order in terms of par 6. I indicated that I would publish reasons for my decision. These are those reasons.
3 This matter has a long and involved history. Proceedings were instituted some 10 years ago and the action is nowhere near ready for trial. Without going into specifics, the action concerns a claim made by the plaintiffs against the defendant in relation to the plaintiffs' re-settlement from Christmas Island. The action has been punctuated by efforts on the part of the defendant to move the case towards trial. The plaintiffs have been plagued by a lack of funds and solicitors obsessed with extensive discovery and inspection. There have been long periods when nothing has happened and it has almost always been the fault of the plaintiffs' solicitors.
4 On 1 June 2006, the defendant made an application for the dismissal of the actions of the first and third plaintiffs pursuant to O 18 r 9(1). This application alleged a failure on the part of the first and third plaintiffs to comply with O 18 r 17, which requires an application to be made for an order to substitute as plaintiffs the personal representatives of deceased plaintiffs.
5 On 3 July 2006, I made an order that:
"Unless within 42 days from the date hereof an application is made for an order to substitute as plaintiffs the personal representatives of the deceased First and Third Plaintiffs pursuant to Order 18 Rule 7, the action of the First and Third Plaintiffs as against the Defendant shall be dismissed and the First and Third Plaintiffs shall pay the Defendant's costs of the action to be taxed."
(Page 6)
6 It was that order that provoked this application.
7 The defendant's solicitors have, since December 2004, repeatedly invited the plaintiffs' solicitors on behalf of the deceased plaintiffs to take steps to substitute as plaintiffs their duly appointed personal representatives. The plaintiffs' solicitors have also been asked to confirm in writing whether personal representatives of the deceased plaintiffs have in fact been appointed. The defendant's solicitors also asked for the names of these personal representatives and details of their relationship to the deceased plaintiffs. The plaintiffs' solicitors were also asked to confirm whether they had instructions to act on behalf of the personal representatives and, if so, to provide copies of the wills and probate or letters of administration.
8 The reasons why the defendant's solicitors asked the plaintiffs' solicitors to confirm whether they had instructions to act requires some further explanation. In Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867, French J briefly reviewed the proceedings in this Court when considering an application for judicial review proceedings in the Federal Court brought by the former residents of Christmas Island. His Honour said (at par 7):
"The Association is apparently incorporated under the Associations Incorporation Act 1987 (WA) although there is no direct evidence of that fact before the Court. In 1996, four members of the Association commenced proceedings in the Supreme Court of Western Australia in Action Number CIV 2057 of 1996 against the Commonwealth. They were Ain Bin Marsah, Badron Bin Ridwee, Nooliyah Binte Salleh and Meng Kok Hu. The first two are now deceased. The proceedings do not appear to have been brought in the name of their personal representatives. It is not clear therefore what, if any, authority the solicitor has to act on the behalf of those representatives. The 'Estate of …' is not a legal person. The second and third named 'applicants', not being legal persons, shall be removed from the heading of this proceeding."
9 Given that French J made such a pointed comment about the authority to represent parties, it might have been thought that the plaintiffs' solicitors would have taken steps to regularise the position. But they did not do so. The defendant's solicitors were told that "the representatives are those persons specified in the Estate's Agreement dated
(Page 7)
- September 2004 served on you over two years ago a copy of which was provided under cover of our last letter to you dated 21 June 2006".
10 The "Estate's Agreement" is a document dated 9 September 2004 purportedly signed by Mr Rapi Bilda who is described as the "grandson of the first plaintiff", Mrs I Marsah described as "widow and former last wife of the first plaintiff", Mrs Sarya Ridwee who is also described as "widow and former last wife of the first plaintiff" and Mr Suriatai Badron who is described as "daughter of the first plaintiff [sic]".
11 There is no evidence that any of these signatories are in fact duly appointed executors or executrixes under a will in respect of which a grant of probate has been made. Nor is there any suggestion that these persons hold letters of administration pursuant to the Administration Act 1903 (WA). It is only upon the grant of probate or letters of administration that the real and personal estate of which a deceased person dies seised or possessed will vest in an executor or administrator.
12 If Mrs Marsah was and is the duly appointed executrix or personal administrator of the estate of the deceased first plaintiff, it would have been a very simple matter for the plaintiffs' solicitors to confirm that fact in writing and provide appropriate evidence. That, they failed to do. Similarly, there is no evidence that Sarya Ridwee was ever appointed as executrix or administrator of the estate of the third plaintiff. Why pars 1 and 2 of the chamber summons anticipate the death of Mrs Marsah and Mrs Ridwee is unexplained. Even if both of these women were under present wills to be appointed the executors in the event of either of the women passing away, there is no warrant for an order being made at this stage anticipating this occurrence.
13 If that were the end of it, it would be bad enough. But the evidence establishes the Sarya Ridwee is now deceased. She died on 28 April 2006, some four months before the plaintiffs' chamber summons was filed. She could not, therefore, have been the executrix or administrator of the estate of the third plaintiff when the summons was issued. For the plaintiffs' solicitor not to have ascertained that fact before issuing the chamber summons amounts to incompetence.
14 In the circumstances, then, the application brought by the plaintiffs in pars 1 and 2 of the chamber summons is wholly defective and must fail. There has been non-compliance with the order made 3 July and therefore, in my view, the springing order has sprung and operates in its terms.
(Page 8)
15 That leaves the plaintiffs' application to examine witnesses by deposition. It is for the plaintiffs to satisfy the Court that it is proper that such an order should be made. A number of factors are to be taken into account. None of the proposed witnesses to be examined live outside the jurisdiction. There is no evidence of any significant burden, cost or inconvenience to any of the proposed witnesses in attending trial. There are significant interlocutory matters still to be resolved and the plaintiffs have not yet provided - and have not yet been ordered to provide - witness statements. All of the proposed witnesses, save for Mrs Marsah, are under the age of 65 years. There is no evidence to suggest that any are infirm. For its part, the defendant maintains that it will be prejudiced by such an order being made. Without going through the defendant's submissions on this point in any detail, I am satisfied that the defendant would be so prejudiced.
16 There were no grounds for making the order sought. The application should never have been made. It was doomed to fail. It was infected by the same incompetence which characterised the application to substitute plaintiffs.
17 It was entirely appropriate that the plaintiffs' solicitors should apply to be removed from the record. I had no hesitation in making such an order. Why such an order was sought in the same chamber summons as other orders is something of a mystery. It is consistent with the incompetence which characterised all aspects of this application.
18 Clearly this is a matter where the defendant ought have the costs of the application, but those costs ought not be visited on the plaintiffs. The plaintiffs' former solicitor is to show cause why a costs order ought not be made against him personally. Any affidavit filed by the plaintiffs' former solicitor should be filed before 14 February 2007.
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