McArthur v Gerhard Janssen as attorney pursuant to section 34 Administration Act for Veronika Logar

[2023] WASC 59

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION: MCARTHUR -v- GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR [2023] WASC 59

CORAM:   MASTER SANDERSON

HEARD:   16 JANUARY 2023

DELIVERED          :   16 JANUARY 2023

PUBLISHED           :   3 MARCH 2023

FILE NO/S:   CIV 1352 of 2022

BETWEEN:   ASHLEE MARIE MCARTHUR

First named First Plaintiff

KARLY NICOLLE FITZPATRICK

Second named First Plaintiff

AND

GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR

Defendant

GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR

Plaintiff by counterclaim

ASHLEE MARIE MCARTHUR

First named First Defendant by counterclaim

KARLY NICOLLE FITZPATRICK

Second named First Defendant by counterclaim

Catchwords:

Practice and procedure - Attendance at mediation of third parties - Turns on own facts

Legislation:

Administration Act 1903 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application to permit third party to attend mediation dismissed

Representation:

Counsel:

First named First Plaintiff	:	J London
Second named First Plaintiff	:	J London
Defendant	:	G Janssen
Plaintiff by counterclaim	:	G Janssen
First named First Defendant by counterclaim	:	J London
Second named First Defendant by counterclaim	:	J London

Solicitors:

First named First Plaintiff	:	Robertson Hayles Lawyers
Second named First Plaintiff	:	Robertson Hayles Lawyers
Defendant	:	Janssen & Maluga Legal
Plaintiff by counterclaim	:	Janssen & Maluga Legal
First named First Defendant by counterclaim	:	Robertson Hayles Lawyers
Second named First Defendant by counterclaim	:	Robertson Hayles Lawyers

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

Nil

MASTER SANDERSON:

1. Ivan Hudina (the deceased) died on 18 December 2017. Veronika Logar is the deceased's niece and would be the only beneficiary of the deceased's estate if he died intestate. On 30 December 2019, the defendant, as attorney for Ms Logar pursuant to s 34 of the Administration Act 1903 (WA) was granted letters of administration in respect of the deceased's estate.

2. It is common ground between the parties that on 2 August 2011, the deceased duly executed a will which was in all respects proper and effective.  The deceased's signature on the will was witnessed by Ms Arcangela Gangemi and Ms Angela Rutherford.  Ms Gangemi, a legal practitioner, had prepared the will in accordance with the deceased's instructions.  The plaintiffs in this action were named as executors in the will.  The will has been lost.  The plaintiffs say it has not been revoked.  The defendant takes the opposite position.  The plaintiffs accept it is for them to overcome the presumption of revocation.  A statement of claim has been filed and a defence has been lodged.  Curiously, the defendant does not admit (but does not deny) the deceased had capacity when the will was made.  Although this may be an issue at trial it is not the main point in this application.

3. On 15 June 2022, the plaintiffs issued the following application:

   1.Arcangela Maria Gangemi attend in court for examination about Ivan Hudina's interactions with her and Durand Gangemi Barristers & Solicitors relating to Mr Hudina's testamentary intentions.

   2.Examination in chief of Ms Gangemi be conducted by affidavit.

   3.The plaintiffs file and serve an affidavit of Ms Gangemi's evidence in chief no later than 14 days before the day of the examination.

   4.The costs of and in connection with this application, including conferral, and the examination of Ms Gangemi be reserved.

4. Order 73, r 20(1) of the Rules of the Supreme Court 1971 (WA) is in the following form:

   An application for an order requiring a person to bring into the Registry, or otherwise as the Court may direct, a will or other testamentary paper or to attend in court for examination may be made to a judge by summons which must be served on the person against whom the order is sought.

5. The defendant opposed the plaintiffs' application on the basis that the rule was not applicable.  The defendant pointed out a copy of the will was available.  It formed part of the defendant's records and had been produced pursuant to an order for discovery.  The issue between the parties was whether the will had been revoked - or perhaps more correctly, whether the plaintiffs could overcome the presumption of revocation of the will.  The defendant maintained that not only was the examination of Ms Gangemi not authorised by the rule, but that it would serve no purpose in the context of the issues between the parties.

6. Faced with the defendant's objections, counsel for the plaintiffs changed tack.  He sought an order for mediation with an order that Ms Gangemi be permitted to attend the mediation and take such part in that mediation as the mediator thought fit.  The defendant opposed that order.  He submitted that having Ms Gangemi at the mediation would serve no useful purpose and would complicate matters in an inappropriate way.  After hearing submissions from counsel for the plaintiffs, I indicated that I would not make an order permitting Ms Gangemi to attend the mediation.  I said I would publish reasons for my decision.  These are those reasons.

7. As I have indicated, the issue between the parties is whether or not this will has been revoked.  It is difficult to know what Ms Gangemi might be able to say about that issue.  She may be able to give some evidence as to the capacity of the deceased at the time he signed the will, but as I understand the plaintiffs' position, that is not really what is at issue between the parties.  But for the sake of these reasons, I am prepared to assume that Ms Gangemi can say something which is of relevance on this issue.

8. A mediation as conducted by registrars of this court is an attempt to settle a matter without the need for a trial.  Although the descriptor 'mediation' is used, the process could perhaps be better described as 'aggravated negotiation'.  The aim is not necessarily to bring the parties together.  The aim is to compromise the action, probably to the mutual dissatisfaction of those involved.  The process necessarily involves a consideration of the evidence and the respective arguments of both sides; but it is not a trial or anything like it.  To involve third parties who may eventually be called to give evidence at the trial is not part of the process.  Apart from anything else, what was said by the third party would be covered by privilege and that could lead to difficulties when and if the third party gave evidence at the trial.

9. It is clear that counsel for the plaintiffs was well motivated in his efforts to have Ms Gangemi attend the mediation.  His aim was clearly to see what she had to say - whether it favoured the plaintiffs' position or not - with a view to reaching a compromise.  During the course of his submissions, he quite rightly emphasised both case management principles and proportionality.  But the orders he sought were simply not within the scope of the mediation procedure and I was not satisfied the orders he sought were appropriate.  Accordingly, I dismissed the application.  The costs of the application including reserved costs will be costs in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MM

Associate

3 MARCH 2023