McGeough v Ian Torrington Blatchford as Administrator of the Estate of Margaret Mary McGeough [No 2]
[2022] WASCA 9
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCGEOUGH -v- IAN TORRINGTON BLATCHFORD as Administrator of the Estate of MARGARET MARY MCGEOUGH [No 2] [2022] WASCA 9
CORAM: BUSS P
BEECH JA
HEARD: 14 JANUARY 2022
DELIVERED : 14 JANUARY 2022
PUBLISHED : 9 FEBRUARY 2022
FILE NO/S: CACV 47 of 2020
BETWEEN: JAMES MCGEOUGH
Appellant
AND
IAN TORRINGTON BLATCHFORD as Administrator of the Estate of MARGARET MARY MCGEOUGH
First Respondent
RORY GERARD MCGEOUGH
Second Respondent
UNA MARY RAND
Third Respondent
ON APPEAL FROM:
For File No: CACV 47 of 2020
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: MCGEOUGH -v- IAN TORRINGTON BLATCHFORD as administrator of the estate of MARGARET MARY MCGEOUGH [2019] WASC 454
File Number : CIV 1457 of 2017
Catchwords:
Practice and procedure - Appeals - Application for a stay of execution pending an application for special leave in the High Court and pending a complaints process with the Legal Profession Complaints Committee - Application for a stay of assessment of bill of costs - Whether a stay should be awarded
Legislation:
Nil
Result:
Application dismissed.
Appellant to pay the second respondent's costs, to be assessed if not agreed.
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | Mr DJ Kirchner |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | Templar Legal |
| Third Respondent | : | No appearance |
Case(s) referred to in decision(s):
CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 3] [2017] WASCA 132
House v The King [1936] HCA 40; (1936) 55 CLR 499
McGeough v Ian Torringon Blatchford as Administrator of the Estate of Margaret Mary McGeough [2021] WASCA 169
REASONS OF THE COURT:
On 17 September 2021, this court published reasons for dismissing the appellant's appeal against a decision granting an application made by the second respondent (Rory McGeough) under s 6(1) of the Family Provision Act 1972 (WA) (the Act) for further and better provision from the estate of their mother.[1] The court ordered that the appeal be dismissed and that the appellant pay the second respondent's costs of the appeal, including reserved costs, to be assessed if not agreed.
[1] McGeough v Ian Torringon Blatchford as Administrator of the Estate of Margaret Mary McGeough [2021] WASCA 169 (Appeal reasons).
The appellant seeks a stay of those orders, and of the primary judge's orders, pending the determination of his application for special leave to appeal to the High Court.
On 14 January 2022, after hearing submissions from the appellant, we dismissed the application. These are our reasons for doing so.
Background facts
The appeal reasons set out the background facts.
On 9 May 2015, the late Margaret Mary McGeough (the Deceased) died at the age of 91. She was a widow. Nine children, each of whom was an adult, survived her.
On 29 March 2011, the Deceased made her last will (the Will).
By the Will, after payment of debts, funeral and testamentary expenses, the Deceased directed that the whole of her real and personal estate should be divided into 100 equal parts and distributed as follows:
(a)10% of the estate was to be divided equally among seven of her surviving children (namely Rory McGeough, Breffni John McGeough, Brian Patrick McGeough, Paul Joseph McGeough, John Martin McGeough, Noel Brendan McGeough and Mary McGeough), so that each of them received about 1.43% of the estate; and
(b)90% of the estate was to be divided equally among her other two children (namely the appellant, James McGeough, and the third respondent, Una Mary Rand), so that each of them received 45% of the estate.
The executors appointed under the Will renounced their appointment.
On 7 November 2016, letters of administration with the Will annexed were granted to the first respondent.
As at the date of the Deceased's death, the total value of her estate was $567,298.11. The value of the estate was depleted by disputes that arose in connection with the appointment of an administrator and the validity of the Will. Eventually, proceedings relating to those disputes were settled.
As at 15 April 2019, the net value of the estate was $356,129.31 (plus interest that had accrued since 28 February 2019).
Rory McGeough and the appellant each made an application under the Act.
The primary decision
The primary judge, Smith J, concluded that the Will did not make adequate provision for Rory McGeough's proper maintenance, support, or advancement in life: see primary reasons [133]. The judge then made findings, as to the facts then existing, relevant to the nature and extent of the further provision for Rory McGeough that should be made out of the Deceased's estate. Those findings are set out in the appeal reasons at [23].
The primary judge determined that provision for Rory McGeough under the Will should be increased to $150,000, giving effect to that determination by reducing the provision that had been made for the appellant and for the third respondent under the Will.
The primary judge ordered that the appellant pay Rory McGeough's costs of the action forthwith in the sum of $119,678.80. Her Honour further ordered that the administrator of the estate pay that sum on the appellant's behalf by paying it from the appellant's remainder share of the estate.
The primary judge dismissed the appellant's claim under the Act. There was no appeal against that decision.
The appeal to this court
Ground 1 of the appeal to this court alleged, in essence, that the primary judge erred in finding that Rory McGeough had satisfied the jurisdictional question under the Act because Rory McGeough did not adduce any evidence of his financial circumstances as at the date of the Deceased's death and so did not discharge his evidential onus.
After outlining the primary judge's relevant findings, by reference to evidence as to Rory McGeough's financial circumstances, this court rejected ground 1.
Ground 2 alleged, in essence, that her Honour erred in finding that Rory McGeough had satisfied the jurisdictional question under the Act because 'it was not reasonable to find that [Rory McGeough] was not capable of work given that it was a finding against the weight of the evidence'. As this court explained in the appeal reasons, the error so alleged does not in fact relate to the jurisdictional question, but, rather, to her Honour's exercise of discretion as to what further provision should be made for Rory McGeough.
In the appeal reasons, a number of findings relevant to Rory McGeough's capacity to work were set out.[2] Those findings were not challenged on appeal. Further, this court found that they were reasonably open to the primary judge on the evidence as a whole.
[2] Appeal reasons [37](a) - (t).
The judge's findings as to Rory McGeough's capacity to work were summarised in the following terms:[3]
(a)At the time of the Deceased's death, Rory McGeough had recently had surgery to his left eye socket and his left eye socket had not yet stabilised; Rory McGeough was separated from his wife, Stephanie, and had not been in paid employment substantially since he wound up his business in 2010; Rory McGeough had no assets, no superannuation and no saving; Rory McGeough was not at that time in receipt of any social security payments and was reliant on the financial support of family and friends [138].
(b)Rory McGeough had been substantially unemployed since 2010 and, while he had recently obtained a TAFE certificate in web design, Rory McGeough was unlikely to gain employment now or in the future [152].
(c)Although it appears that Rory McGeough's lifetime will not be shortened, it is difficult, because of his physical impairment to his right leg and only having one eye, for him to obtain work in his previous occupation as a carpenter or handyman [152].
[3] Appeal reasons [38](a) - (c).
This court found that the judge did not find, in the terms alleged by ground 2, that Rory McGeough 'was not capable of work'. Rather, the critical finding made by the primary judge was that Rory McGeough was unlikely to gain employment now or in the future.[4]
[4] Appeal reasons [40], referring to primary reasons [152].
Taking into account the trial judge's advantage in having seen Rory McGeough and other witnesses (namely the appellant and the third respondent) give their evidence, this court was satisfied that the primary judge was entitled to find that Rory McGeough was unlikely to gain employment now or in the future. On this court's assessment of the trial record, that finding was not against the weight of the evidence.[5]
[5] Appeal reasons [41].
On 17 September 2021, this court made the following orders:
(1)The appeal is dismissed.
(2)The appellant pay the second respondent's costs of the appeal, including reserved costs, to be assessed if not agreed.
Application for special leave to appeal to the High Court
On 20 October 2021, the appellant filed an application for special leave to appeal to the High Court. The application identified the proposed ground of appeal as: the Court of Appeal erred in that the primary judge's decision was plainly unjust or unreasonable, or otherwise revealed error, in the sense referred to in House v The King.[6]
[6] House v The King [1936] HCA 40; (1936) 55 CLR 499.
The application identifies, as the special leave question, the following:
The question here is:
(a)did the trial judge err in her finding of the plaintiff's limitations; and
(b)did the trial judge err in her finding of the plaintiff's disability; and
(c)in all the circumstances is the court's determination unreasonable or unjust.
The application canvasses factual and evidentiary matters in considerable detail. It also complains that the adverse costs orders made by the primary judge against the appellant were unreasonable or plainly unjust.
The appellant's application for a stay of execution
The appellant has filed an affidavit in support of the application. The affidavit refers to, and annexes, his application for special leave to appeal to the High Court. His affidavit also annexes a notice of complaint that he has lodged with the Legal Profession Complaints Committee alleging that conduct by the legal representatives of the second respondent amounted to a breach of the conduct rules.
The appellant seeks a stay until the special leave application is determined and the investigation of the complaint is determined. Although it is not entirely clear, it appears that the intention is that there be a stay until the later of these two processes has been completed.
The appellant submits that the following special circumstances exist that justify the grant of a stay:[7]
(a)A refusal of the stay could create practical difficulties in respect of relief which may be granted on an appeal.
(b)The grant of the appeal could be rendered nugatory if a stay is not granted.
(c)While the estate is mostly distributed, a final distribution, particularly a significant amount of costs, may be affected by the outcome of the appeal.
(d)The second respondent's legal costs have been paid by another party so the balance of convenience favours the grant of a stay.
(e)In any event, there is nothing filed by the second respondent to show any hardship which the grant of a stay might cause to the second respondent.
[7] Appellant's outline of submissions [9].
The second respondent's opposition to the application
The second respondent, Rory McGeough, opposes the appellant's application for stays of execution. In support of that opposition, the second respondent has led evidence that the estate has, in substance, been distributed in accordance with the primary judge's orders. In that regard:
(1)on 29 September 2021, the administrator paid the sum of $150,000 to Rory McGeough's solicitors in satisfaction of the judge's order that the Will be varied to provide that sum to him; and
(2)on or about 28 October 2021, the administrator paid the sum of $105,000 to Rory McGeough's solicitors, in partial satisfaction of the appellant's liability under the primary judge's orders to pay Rory McGeough's costs of the action: see [15] above.
The second respondent submits, in summary, that the appellant's application for a stay should be refused because:
(1)the appellant has not demonstrated that a stay is necessary to preserve the integrity of the subject-matter;
(2)the appellant has not demonstrated reasonable prospects of success in the special leave application;
(3)the complaint to the Legal Profession Complaints Committee is immaterial to whether a stay is justified; and
(4)a stay would cause undue hardship to the second respondent.
As will be seen, in essence we accept those submissions: substantially for the first three reasons advanced by the second respondent, we refused a stay of this court's orders and the primary court's orders.
Stays pending special leave: general principles
The principles governing whether a stay of the judgment of an appellate court should be granted pending the determination of an application for special leave were outlined by this court in CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 3].[8] We adopt those principles without repeating them. Relevant considerations will usually include the following:
(1)whether a stay is necessary to preserve the subject-matter of the application for special leave;
(2)whether there is a substantial prospect that special leave to appeal will be granted;
(3)whether the grant of a stay will cause loss to the respondent; and
(4)where the balance of convenience lies.
[8] CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 3] [2017] WASCA 132 [6] ‑ [13].
Disposition
In our view, the appellant has fallen well short of demonstrating that a stay is necessary to preserve the integrity of the subject-matter.
The current position may be summarised as follows:
(1)There is nothing in the Deceased's estate which remains to be preserved, apart from an amount of $5,205.74 held by the administrator on account of his costs in the special leave application.
(2)There is $14,678.80 owing by the appellant pursuant to the primary judge's order as to costs (being $119,678.80 less the amount of $105,000 which has been paid).
(3)There is an amount of $27,000 which the appellant paid into the Court of Appeal in or about May 2020 as security for any liability of the appellant for the costs of the appeal.
On 25 November 2021, this court informed the parties that the registrar had provisionally assessed Rory McGeough's bill of costs filed on 1 October 2021 in respect of his costs of the appeal to this court, and that the registrar proposed allowing $30,400 (including disbursements) if no objection to the assessment was received by 16 December 2021.
On 15 December 2021, the appellant informed this court that he objected to the registrar's provisional assessment.
The amount of Rory McGeough's bill of costs has not yet been assessed pursuant to this court's order made on 17 September 2021, and no appointment for the assessment has yet been made.
In these circumstances, it can fairly be said that both the primary court's orders and this court's orders have substantially been performed, so that there is very little left to stay.
In the end, the appellant sought, in substance, a stay of the assessment of the second respondent's costs payable by the appellant.[9] To state the obvious, the efficacy or integrity of the appellant's application for special leave to appeal does not depend upon whether the second respondent's costs have been assessed and paid. Consequently, a stay is not necessary to preserve the subject-matter of the application for special leave. That conclusion, of itself, counts decisively against the grant of a stay.
[9] Appeal ts 33.
Our refusal to grant a stay is reinforced by consideration of the prospects of the appellant's application for special leave to appeal.
The challenges for the court that delivered judgment in the appeal in seeking to assess the prospects of the grant of special leave and, if leave is granted, the prospects of the appeal being allowed, have been observed in earlier cases.[10] Nevertheless, it is a task that this court can perform consistently with having dismissed the appeal, and the clear statements of the High Court require this court to undertake the task.
[10] See, for example, CPB Contractors v JKC Australia [18].
The criteria for the grant of special leave to appeal are set out in s 35A of the Judiciary Act 1903 (Cth). In deciding whether to grant special leave, the High Court may have regard to any matters it considers relevant, but shall have regard to:
(a)Whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b)Whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.
Nothing in the appellant's application for special leave engages the considerations in par (a) of s 35A. The special leave question identified in the application is not of general application. Rather, the question is framed entirely in terms of whether the trial judge or this court in this case erred in respects that are specific to this particular case and its circumstances.
The proposed ground of appeal simply asserts error of a kind referred to in House v The King.
Having considered the contents of the appellant's application for special leave to appeal, we are far from persuaded that the appellant has demonstrated reasonably good prospects of obtaining special leave to appeal.
The appellant's complaint to the Legal Profession Complaints Committee concerning the practitioners representing the second respondent is, for present purposes, entirely irrelevant. It does not bear upon, much less is it capable of sustaining, a stay, the object of which is the preservation of the integrity of the appellant's application for special leave to appeal.
For these reasons, we refused the appellant's application for a stay.
The orders sought by the second respondent
The second respondent sought further orders to the effect that:
(1)Pursuant to O 37 r 7 of the Rules of the Supreme Court 1971 (WA), the appellant's affidavit sworn 15 December 2021 be removed from the court record.
(2)A date for taxation of the second respondent's bill of costs of the appeal be fixed on a date not before 26 January 2022.
We were not persuaded to make orders in these terms. Our reasons for so deciding are as follows.
Order 37 r 7 empowers the court to order the removal of an affidavit from the court record if the affidavit contains matters which are scandalous, irrelevant or otherwise oppressive. The second respondent's primary concern animating the application related to the appellant's complaint to the Legal Profession Complaints Committee. While we have, as already explained, determined that that is irrelevant to the application for a stay, it was one of the two matters upon which the appellant primarily relied in support of his stay. The second respondent did not challenge the appellant's genuineness in that respect. In those circumstances, in our view, it was not appropriate to exercise the court's power under O 37 r 7. Rather, it was appropriate that the file contain the material relied upon by the appellant in support of his application for a stay.
We declined to make the second order sought by the second respondent because, in the circumstances, there is no necessity for such an order. The appellant's application for a stay having now been determined, there is no impediment to the listing of the assessment of the second respondent's costs of the appeal. It is to be expected that the assessment of those costs will now be dealt with promptly in the ordinary course.
Orders
For the above reasons, we made orders in the following terms:
(1)The appellant's application in an appeal filed on 16 December 2021 is dismissed.
(2)The appellant is to pay the second respondent's costs of the application, to be assessed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Research Associate to the Honourable Justice Beech
9 FEBRUARY 2022
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